members are challenges limited to the commission's grant of nationwide forbearance from avoided cost resale under section two hundred and fifty one c four for time division multiplexing lines or t d m purchased by government and business has delivered over copper loops your honor and the distinct isn't that well it is t v it's a it's a business type of wind gets used but it's very it's a d s o line it's the same line that would be used for voice in your home it's a line yes it's a physical line it's a copper loop that goes to the house and it's lovely but as i read the brief it doesn't have to be copper no your honor it can be offered over fiber but the difference is that the fiber is not line powered so if your voice service goes out in an electrical outage you have no voice service no i understood that i understood that so t d m is a method of transmission and business customers are purchasing and we compete with i lack for those twenty eight million lines half of our customers are located in rural areas where the wind power copper is the only available voice service and they include local post offices schools libraries st responders and myriad others where there is no internet broadband and there is no voice where voice is generally available to the other half of our customers they to purchase wind powered copper lines in addition to avoid it because of that distinctive wind powered feature and those t d m lines those line power lines drawn or are three  customers and they range from federal and state agencies to banks and retail chains and they demand them to insure critical communications especially given increasingly severe climatic events and blackouts such as in california in many cases these line powered copper loops are mandated by law for example they're required for time synchronization of the national airspace system and as a failsafe for prescription drug fulfillment by pharmacies and even for day care centers now so man may i feel you were my sim simple minded approach to this case isn't it fair to say that the legacy elysees are going are diminishing in their role in the market rapidly in certain areas they are your honor there's certain let's let's talk effects and there's a dramatic decline in their position in the market as different modes have come in that's correct your honor but where they still maintain a local monopoly is over these line these copper wind powered loops to business establishment and government agencies and well yesterday you know that's like saying after the  automobile came into existence there was a company that built carriages horse carriages that still had a monopoly well your honor just because something is old doesn't mean it's not useful and there are large parts the of rural america where the wind power copper loop is the only voice service that's available and these of these non price cap companies know these include price cap companies and that that's why that's why we are able to compete with them using the avoided cost statute it gives us the opportunity to go in and offer a competitive alternative and we are a lot of alternative ariens but might go back to my point not really the elysees are dropping like flies their businesses dropped in the last what five years from eighty percent to down to thirty seven percent there are already other intermodal or other moto group killing them right yes but what those other intermodal groups cannot offer your honor is the line powered feature of copper loops and has not retired those loops and they haven't retired them because there's still a very persistent and strong demand twenty eight million dollars of these lines are still being sold and we're competing vigorously for them and we are the only competitive alternative for those lines your honor now that the f c c may want to start drawing different lines but if you go back to their of what it costs we sell orders in the terry case for example it was one single exchange serving six hundred and five households in the omaha quarter it was twenty four wire centers in the omaha m s a so the number is not necessarily dispositive here even though it's a very nationwide strong persistent demand for these line powered copper loops and what has this commission but in the it's in the diminishing no no the record showed d that the demand for these line powered copper loops is persistent and in fact with recent climatic events in the rolling blackouts are seeing in california they may become even more valuable but never before this order your honor has the commission looked at the retirement of these copper loops as having anything to do with what they claim is the purpose for the the forbearance which is to promote next generation deployment and that's the or iran or counters twenty years of f c c precedent starting with the local competition order ninety six all the way through to a two thousand and fifteen order involving u s telecom petition where the commission has said the top down pricing methodology of avoided cost resale imposes none of the costs or burdens that would it's neutral as to whether or not it has any effect on facilities based deployment this decision turns that on its head  legacy copper loops when it's wasteful but secondly even if we deploy fiber even if we deploy our own facilities for next generation networks those there is no technology today that has the line powered feature of the copper loop as i said earlier it may be old but it's still very useful and as one is that market persists the commission has in the past recognize that there's an importance of having a competitive haven't yet they haven't done that yet that's in rez long as they don't they remain available so i have two questions number one so what your concern is really about then is price correct correct that that's what this is all that the commission says well price is not a concern because you know there's always two a one to two to ensure prices are reasonable and we think you know her suit is based on turnitin who will keep the these are a lot of areas in the country if you look at the f c c is two thousand and eighteen nd wireline order issued the year before this order the commission rejected suggestions that broadband voice is a substitute for line powered copper loops precisely because there's no marginal largely rural areas in the country that don't have crop bans they don't have access to voice and judge to handle on the same day that this order was issued the commission launched an initiative initiative to try to bring more deployments of fiber and broadband into rural areas of the country and some of that money is going to us telecom members like  and like fronts here like consolidated and that is because they are serving areas where our customers exist where these loops are solely in their control and the only means that we have to discipline price is through the ability to get of what it costs resale and we get that either through invoking the discount itself or as congress intended under two hundred and fifty two dollars a one to do it through negotiated wholesale agreements but we their petition they stop negotiating with our costs with our petitioners for avoided re cost contracts and as a consequence a consequence of that and they continued to not negotiate with shouldn't i just this is the last last part of this letter just last question in your opening credits any of your grief you mention the risk to the forbearance to the air traffic control you so are there are there traffic control facilities in areas of the country where there is no right to him there are and also your honor it's mandated by federal law well we will be increased in price to you that your objection isn't well it will be increased to the point where we can no longer compete your honor because the critical price and this was what the f c c see noted in its omaha order and fifty one dollars b one general resell option is not an adequate protection because the only way that the lex can compete for these copper looms is on the basis of price and without a wholesale discount you can't do that so it will live our petitioner's out all of us why should we care whether the prices increase to you isn't all that clinched in the underlined the original statute as it's been implemented over the years the concern is competitive rest easy consumers and the more fiber and voice over develops as a technique the elysees are having a decreasing percentage of the market their weaker and weaker and weaker why should we care why should there be any relevance to the fact that you may have to pay more for  access but your honor i think the reason you should care is because while the f c c has been given broad discretion under the section ten factors for veron pts the one thing that this court has said in the verizon be f c c two thousand and nine order and i believe earlier and i think even the decision in which you were involved your honor may have written the opinion the one thing they can't do is change deviate from their past decisions explanation and in this case your honor up until this order the commission has looked at each market it has looked at avoided cost resell it has looked at the top down pricing of what it costs resell and it has said it doesn't deposit basically is that basically you're just graphical more market power it's not just that your honor it's you will you will not find anywhere in this order a discussion of the top down pricing of avoided cost resale they lump of what it costs resell and you any is into the same analysis and that's a critical distinction because the price let alone the dollar gee for those two requirements are fundamentally different it's everything in the kitchen sink where do you legal argument are core legal argument your honor is that for the last twenty years the commission has recognised that avoid it cost we still does not impose the types of costs on any influence on their decisions to deploy next generation networks in this decision for the st time the f c c has said that of what it cost resale does affect the incentives of i lex and whether or not they will deploy next generation networks and there's no explanation for that and the reason in the past your honor that the f c c has said that this doesn't affect the city's base deployment is because of the pricing methodology it's over i can assure your honor that selects on our going into facilities various competition the one thing they're not doing is they're not going out and replicating copper loops that were deployed decades ago the costs were recovered decades ago it's not efficient and so the question becomes from the customer perspective and from a competitive perspective which is what congress cared about under the ninety six dollars act if we eliminate of what is avoided cost resale are we leaving markets where there is only one game in town that i lack and that is what this order does it restores local model knobbly conditions for these services in large swaths of the country and if the isn't really a this is a fight between what is predicted down the line where we would really have to defer to the f c c because they're predicting the decline of copper loops they may they may be predicting it your honor but there's nothing in the record to support that prediction and there is contrary evidence that these twenty eight million copper loops have not been retired there's nothing stopping the eye lex from retiring them they're not going to retire them because there's still this very significant demand by these business and and government customers and if anything this forbearance order is going to reduce the incentive for elects to retire those copper lines and that is record evidence that the commission overlooked disregarded but whatever you won't find it in the order unbundle their network elements and to opera services and boycotts and to the st point regarding public safety your honour's as we speak much of the western united states is on fire this year california wildfires have destroyed many more acres than in any other year in history and we're not even done with the fire season other states facing creasing challenges from hurricanes storms and and other climate related  the resiliency of communications during such emergencies is only going to grow in important st responder agencies depend on the resiliency of line powered kind of vision most that some service delivered over copper loop obtained through unbundling obligation to maintain communication during a bird's moreover the nine hundred and eleven calling system in many regions currently depends on these network elements obtained through the  cases yes well we're won't not still it's required right if there's no indication of this going through it will be available everywhere in the country is there  point whether it's available or not is not a byproduct of this order that's there's going to be independent decisions that determine whether it's available out there may be legal fireman's that are made available but this sort of itself is is goes to the market goes to the price right it doesn't it's not directly impacting availability if talks of elite in the sense that there's no obligation to offer this service without the unbundling obligation i believe mentioned it does reduce availably in terms of eliminating the obligation to offer these this gun bundle element but not right now you just now you completely confused me because i thought you said that i thought you obligation is the means by which customers government customers business customers that rely on the resiliency time line powered copper lines that's the medium by which they get this server so i understand you're saying is that the lines whether they existed or not is another issue but this issue is whether or not they will  availability i mean yes please just to be clear when you say availability you're talking about availability of on bundled service not availability of copper mine in other words as i understand the situation whether copper is available or not and i'm just using copper loosely i'm sure that i'm getting the technology the actual particulars wrong but i think everybody understands are getting out that the availability of copper is settled by something else what you're talking about is whether there's an on bundled availability and yeah that's affected by this order but that it's there's only an on unbundled availability of copper if there's an availability of copper to begin with that is that's governed by something else outside this case yes you're right yes that is true eleven service but on wider issues of public safety you know many issues of public safety that were raised by parties that's if you simply did not provide any response and that is last year in the  we believe that's that's arbitrary public safety argument is that line power t d m over copper is essential for government customers and public safety agencies that is the availability of wind power and be the line power argument was addressed by the commission in paragraph thirty two dollars of the order and the commission was not convinced by that argument because it found that business is that rely on continuously powered communications routinely purchase backup power and as this court hit on with our opposing counsel this order that the availability of line power is tied it to the existence of copper and incumbents increasingly are retiring their copper loops and this order has nothing to do with that that is a business decision that the carriers are increasingly making in response to dwindle ng customer demand for t d m over copper and so the line powered argument yes petitioners can claim that their customers want line power but the market is true as dramatically shifted over the last twenty five years and as customers are increasingly into having the meeting you're relying on which paragraph is it thirty two yes your honor and i just want to have a look at the right place that j two hundred and seventy seven i believe that's correct here on earth so that's talking about the distinctive line power feature of tedium voice service that is making the point that it's available but it doesn't deal with public safety as such right it doesn't deal with public safety by terms so that it seems like the question would be well even if there is a bare availability there could still be a public safety implication from the order and the argument is well under mozilla it may well be able to establish that the public safety accounted for i'm not suggesting that you can't account for that but i'm just talking about the four corners of the order itself you need to treat with the question and deal with it your honor and the reason that there is not a standalone public safety analysis in the order because this order has nothing to do with the of bill ability of t d m service which will continue so long as incumbents have not retired or copper loops t d m over copper will continue to remain available this order as the judges had hit on earlier is about ending regulated pricing to the analog loops and resell and c p u c does not challenge the pricing as it relates to the commission's granta forbearance from the requirements so nothing in this order is ending be a bail ability of the tedium service itself as the record confirms several incumbents have filed comments with the agency saying that they have strong business incentives to continue to offer t d m to those customers who want to this order simply  i'm going to have to switch the two off and how long d i could stay on this depends on what turned a generator back of my head so they're not sever they're very integral to each other it just doesn't make sense to me because you could say that the order to enhance public safety not undermine it the leading state agency in california that is overseeing emergency preparedness has said that an ip based nine hundred and eleven system is in fact more reliable has less  power issues and has more monitoring capabilities than the existing legacy nine hundred and eleven system and it's not just california thirty plus states around the country are also following suit so the trend is very clear  that's the point i made earlier the response was well though it's in the brief it's law in the order get your honor it's we did speak about the facilities based or voip based nine hundred and eleven being similar in terms of reliability as a legacy based nine hundred and eleven that is in the order in with respect to our argument in the brief we raise that to essentially impeach sees claim that california is so reliant on legacy t d m for their nine hundred and eleven system that is absolutely not true that is contradicted by what california is doing right at this moment in fact they have since targeted march two thousand and twenty one only six months away as the date in which they plan to complete the implementation of ip based nine hundred and eleven infrastructure throughout the state of california so c if you keep referring to regulations as orders when under a period of course in orders of adjudication and generally which is relied on constantly by the parties and by the petitioners in this case is really has a different kind of meaning in d regular regulation doesn't it judy case and so you're only required in regulation to respond to the most important questions not every question and you can respond in your belief you issues that are more or less significant is this was this issue of incumbents so customers have access to any number of options which will help discipline rates and the fact of the matter is that these regulations were enacted to promote competition which has been achieved at this point and these mandates were never intended to exist in perpetuity and we know this because congress gave the commission the authority to forbear from these regulations once they were no longer needed and this order is not even taking away the that we expect that got carriers serving government customers will make sufficient arrangements to ensure that those customers are continuing to receive service this or how likely ends the regulator pricing council you have to let me in position that they are is because while it is true that they can retire their copper loops they don't do so on a customer by customer or line by line basis they do it in a given geographic area and if they have existing business customers work and the petitioners are talking about business customers you're we're not talking about residential customers they those business customers the incumbents have multi year contracts with those customers and of course business customers tend to produce or purchase larger volumes of service so the incumbents are simply not going to just retire the copper loop and risk disrupting those customers operations so the incumbent will of course do everything they can to transition those customers to ip based voice services but until that happens they are still maintaining the cost of the copper and as long as they have the copper the scene lacks can then continue to lease the analog loops at highly discounted rates and to existing rules because nothing traps and they can go out of the copper wire business any time they want they can retire in their conference when they want to my my my explanation of it you can see the footnote fifty two eliminates the contention in the body that so i took i have two questions so st of all are on the two a one and two or to put if if the commission can satisfy anyone by simply pointing to the existence of required the commission to make this a further to finding and and so therefore i have to find where they're trying to it's been the only thing i can find is the argument that the facilit and fifteen us talk come from parents order the commission actually explicitly said that these legacy regulations in fact decrease investments in next generation facilities that is a far more recent decision than the quest phoenix order in any event this this court has disavowed the notion that legacy regulations somehow increase investments in next generation facilities and us t n a won back in two thousand and two this court said be that legacy regulations deter investments in exploration facilities because it limits the resources that the incumbents have to invest in next generation services and it decreases the incentives for the seal acts to invest in extraction services because it's much more commission did make the larger point that the market has changed dramatically customers have switched to ip based services that the commission you know under section seven hundred and six of the act is as a corner administrative law professor i brought a letter calling a regulation an order but any event in this rule you were dealing with nationwide rather than an individual geographical analysis of market power when you are dealing with these cases and market power as everybody uses the term refers to local markets not national ma not the national one right that's the regulation as applied to one market phoenix arizona here in contrast u s telecom is seeking for barron's from the regulations for price caps carriers nationwide and this court in the earth link decision s variety of frameworks here we appropriately consider whether these mandates would promote investments in extraction facilities because as we found that the market has changed dramatically and customers are overwhelmingly asking for ip based voice services the commission wanted to ensure that providers would be encouraged to deploy next generation fiber fiber networks to meet this growing demands and found that these legacy regulations in fact impeded  investment in next generation facilities now granted claims their particular business model is jeopardy because what they do exactly as an intermediary subtle bundling together there's nothing that provides in the statute an obligation to protect your business model is in the book that's exactly right judge silberman as you had pointed out earlier section ten of the act is about protecting consumers the public interest and competition in general it's not about protecting individual competitors and their business models as this court found and u s t a to even if all celiacs are driven from the market as long as there is rob competition from other providers there is nothing in the act that prohibits that result but in any event the serial acts are not going to be driven from the market because as we as a commission explained the majority of c lots are not even relying on these legacy regulations to provide service they're overwhelmingly providing service through commercial agreements and that includes encompasses own members granted and met tell if you look at page fifty nine of our brief for that confidential information you'll we'll hear from mr cooper now thank you thank you the court and i'd like to pick up with the public safety issues that were addressed earlier today and what i'd really like to make clear is that nothing about u s telecoms titian or her parents granted here could affect public service of routing those calls has never been subject to see or in addition the f c c has also repeatedly concluded that nine on one calling does not require copper based services and so petitioners arguments the contrary are really thirty two of the order addresses the wind power issue that is one of the crux cox's of the arguments that c p c makes about the importance of the bill ability provided over copper to government customers order also does address in paragraph thirty three dollars the issue of government customers that will continue to depend on t v on service and there are that commission stated which is that j two hundred and seventy eight marketplace demand is likely to lead providers to meet the needs of customers in connection with technology technology transitions really all this order is doing is saying that income it's no longer have to offer these well regulated rates but where it's economically feasible and sensible for incumbent likes to offer these services they absolutely will do so they have an  were forced to create systems and maintain systems to handle an bundling and resell that wouldn't exist but for those obligations and that really puts a thumb on the competitive scale against us  so are more nimble new entry competitors and are able to better compete because we have these one sided obligations that no other competitors are obligated to pay for nationwide for parents and the commission denied for parents from avoided cost resale in paragraph sixty dollars it emphasized that the top down pricing methodology effectively caps the prices that eyelets can charge for wholesale  services and quote we agree with the u s telecom that it preserves the lex ability to provide voice services to customers without building their own network facilities and in the nd wireline order in tw eighteen a year before this order the commission rejected i look suggestions that void is an adequate substitute for copper loops especially since void is not even available in many rural areas of the country served by lax and here is what the key ruling there was the four parents would not promote comp pettitt of market conditions because it would eliminate any service alternatives your honor there is a robust significant and continuing demand for these win my nd point your honor they're not weakening rapidly where they are the sole possessor of the line power copper loops used to provide these critical services and the commission has found that in the quest order for example your honor quest got ninety percent of its retail rate and that was because it avoided the marketing and the billing and the collection costs it's not a cost that if that radically different from the  question is this is this is the the crux of the issue the commission has up until now looked at whether or not there is a demand for a service whether the incumbent lexx have monopoly control over the facilities necessary for that service and there are no adequate substitutes whether the only form of competition available is avoided cost resale and in each of those denson says for twenty years the commission has kept  this this order ignored was this significant twenty eight million lines that the eyelets have not retired they could they haven't because they don't want to these are customers that we're competing for with them and they are the only ones who have these copper loops and it is not economically feasible for us to replicate them and your honor you know congress wanted an act of the ninety six dollars act did not want entities to come in and wastefully replicate legacy facilities it was about promoting next generation networks and on this issue of what it costs resell this commission for twenty years has said avoid it cost resale has no effect on incentives to deploy next generation networks and that is not there's nothing in the record to support that your honor and i would say it won't because if you go back and look at the omaha order one of the things that the court that the commission recognize i'm sorry the omaha regulations the commission recognized that allowing a void across resale creates incentives we can compete with that even where we have not yet built out our own the syllabi the next generation networks and that's a good thing it provides an alternative this order is going to restore local monopoly conditions continuing on despite a discussion about competition that fifteen it's order places great emphasis on the role of facilities based competition not just competition but the facilities based competition now the california pretty commission presented evidence in the record that in california most of the non cable felix as well as the four large mobile providers relied on the infrastructure of just one inc so at least in california there is not the silly space competition in the voice market despite the presence of voice alternatives and other states has prevented similar situations in their states as well and the s c did not address this evident in its order i'd like to address some of the discussion that's his counsel presented about california as view of the transition of nine hundred and eleven service currently as you of nine hundred service but i guess the bottom line is because this is not in the record we can't properly consider is evident or mike or this evan information i'm hearing just today it's not in the record and we can probably consider it and finally i would point out that i actually see relies greatly on a fundamental factual finding that maintaining incumbent carrier unbundling obligations deters investment in advanced services now this is contradictory to a previous factual finding where the absolute see found the opposite the s c never discusses this previous back to finding this order does not even acknowledge his previous this also is arbitrary but now sometimes you refer to factual findings as if they were historical facts when they're really predictions yes your honor their predictions of what would happen to actually see made one prediction previously and then it contradicts its prediction here and it doesn't letter s when you expect an agency dealing with rapid movement of technology to make mistakes and predictions and to of your objection suppose they just said and would you be complaining that well i'd have to see what they said in the order and if it properly considered that previous prediction i'm now in in terms of the difference between a local market and a nation work mission work and i think that's more along the lines of what forbearance test you want to use but in terms of this projection of what the obligations will happen effect on investment in advance  council was my colleagues under the questions will thank all council for the arguments this morning and what take this case under submission