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INDUSTRY COMPETITION AND CONSOLIDATION:

THE TELECOM MARKETPLACE NINE YEARS

AFTER THE TELECOM ACT

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

APRIL 20, 2005

Serial No. 109–26

Printed for the use of the Committee on the Judiciary

(

Available via the World Wide Web: http://www.house.gov/judiciary 

(II)

COMMITTEE ON THE JUDICIARY 

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman 

HENRY J. HYDE, Illinois 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

WILLIAM L. JENKINS, Tennessee 

CHRIS CANNON, Utah 

SPENCER BACHUS, Alabama 

BOB INGLIS, South Carolina 

JOHN N. HOSTETTLER, Indiana 

MARK GREEN, Wisconsin 

RIC KELLER, Florida 

DARRELL ISSA, California 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

ADAM SMITH, Washington 

CHRIS VAN HOLLEN, Maryland

PHILIP G. KIKO, Chief of Staff-General Counsel 

PERRY H. APELBAUM, Minority Chief Counsel 

(III)

C O N T E N T S 

APRIL 20, 2005

OPENING STATEMENT 

Page 

The Honorable Chris Cannon, a Representative in Congress from the State 

of Utah .................................................................................................................. 1

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, and Ranking Member, Committee on the Judiciary ......... 3

WITNESSES 

Mr. Carl J. Grivner, CEO, XO Communications, Inc., on behalf of Comptel/

ALTS Alliance and Association for Competitive Telecommunications 

Oral Testimony ..................................................................................................... 5

Prepared Statement ............................................................................................. 7

Mr. Brian R. Moir, Attorney-at-Law, on behalf of e-Commerce and Telecommunications Association (eTUG) 

Oral Testimony ..................................................................................................... 24

Prepared Statement ............................................................................................. 25

Mr. Michael Kellogg, Partner, Kellogg, Huber, Hansen, Todd, Evans & Figel, 

PLLC, on behalf of the United States Telecom Association 

Oral Testimony ..................................................................................................... 28

Prepared Statement ............................................................................................. 29

Mr. Philip L. Verveer, Partner, Willkie Farr & Gallagher, LLP 

Oral Testimony ..................................................................................................... 34

Prepared Statement ............................................................................................. 35

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Response to questions submitted by Representative Chris Cannon to Carl 

J. Grivner, CEO, XO Communications, Inc., on behalf of Comptel/ALTS 

Alliance and Association for Competitive Telecommunications ....................... 71

Questions submitted by Representative Chris Cannon to Brian R. Moir, Attorney-at-Law, on behalf of e-Commerce and Telecommunications Association 

(eTUG) ................................................................................................................... 79

Response to questions submitted by Representative Chris Cannon to Michael 

Kellogg, Partner, Kellogg, Huber, Hansen, Todd, Evans & Figel, PLLC, 

on behalf of the United States Telecom Association ......................................... 81

Response to questions submitted by Representative Chris Cannon to Philip 

L. Verveer, Partner, Willkie Farr & Gallagher, LLP ........................................ 93

(1)

INDUSTRY COMPETITION AND CONSOLIDATION: THE TELECOM MARKETPLACE NINE 

YEARS AFTER THE TELECOM ACT 

WEDNESDAY, APRIL 20, 2005

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC.

The Committee met, pursuant to notice, at 2:14 p.m., in Room 

2141, Rayburn House Office Building, the Honorable Chris Cannon 

presiding. 

Mr. CANNON. The Committee will be in order. 

I’d like to apologize to the Members of the Committee and the 

panel for my being late. Work as we try here, sometimes we just 

get hung up and caught. I appreciate your indulgence. 

The House Committee on the Judiciary and the antitrust laws 

have played a central role in fostering competition in the telecommunications industry. This Committee and the Department of 

Justice played a major role in the historic breakup of ‘‘Ma Bell;’’

and the antitrust laws formed the primary legal basis for decades 

of congressional efforts to bring about telecom competition, first in 

long distance, and then in local services. 

These efforts culminated in the clearest expression of congressional determination to bring about local competition, the Telecommunications Act of 1996. The act was conceived as a comprehensive, pro-competition mandate to remedy decades of monopoly control of the local exchange. The 1996 act also expressly preserved an active and continuing role for the antitrust laws in this 

marketplace. 

Today, the Committee will examine the current state of competition in the telecom marketplace and the vitality of the antitrust 

laws in preserving and promoting competition 9 years after the act. 

We do so against a backdrop of proposed industry consolidations, 

FCC rulings that largely abdicate a muscular role for the Commission in ensuring access to local monopoly facilities, and troubling 

court decisions that question the coexistence of the 1996 act and 

the antitrust laws. 

Taken together, these developments have dramatically recast the 

competitive landscape in the telecommunications industry, undermining the pro-competitive goals of the 1996 act. Moreover, recent 

vertical and horizontal industry consolidation has created what 

some perceive to be a telecommunications oligopoly comprised of a 

diminishing number of Regional Bell Operating Companies 

(RBOCs) that increasingly resemble the ‘‘Ma Bell’’ monopoly from 

2

which they were created and that do not compete in local interregional markets. 

For example, if some of the proposed mergers are finalized without divestitures, then two companies may have a dominant market 

position, controlling a combined 80 percent of the business telephone market and as much as two-thirds of the regional Bell operating companies’ residential customers. One of the combined entities alone might control 44 percent of the business market. 

And any merger poses particular concern when one of the merging entities is currently the primary competitor for business customers within the other merger partner’s region. In addition, 

RBOCs do not presently compete in each others’ regions for noncellular residential or business services; thereby risking merger to 

monopoly in a key market segment and a fractured competitive 

landscape harmful to consumer choice and innovation. 

The 1996 act was predicated on a common-sense notion that the 

regional Bell operating companies, or ‘‘Baby Bells,’’ provide non-discriminatory access to the local monopoly networks the Bells inherited from the breakup of ‘‘Ma Bell.’’ Since last-mile facilities built 

by the decades-old, Government-sanctioned, guaranteed-rate-of-return ‘‘Ma Bell’’ monopoly could not economically be replicated, the 

1996 act clearly mandated non-discriminatory local exchange access for competing local services. 

In the immediate wake of the act, the FCC enforced its provisions and issued regulations to implement it. As a result, competition briefly flourished, and meaningful consumer choice accrued to 

millions of Americans. Nine years later, the competitive landscape 

envisioned by the act has not been realized, and is receding. In 

2000, there were 375 Competitive Local Exchange Carriers 

(CLECs) in operation; today, there are less than 100, and that 

number continues to dwindle. 

Section 271 of the 1996 act, and the proactive role of the Department of Justice that it established, were a capstone of the act’s 

early success. Put simply, the incentive for RBOCs to continue, or 

to comply, and open access to their legacy monopoly networks 

under the act was the carrot of gaining approval to enter long-distance service in States where they complied; a privilege expressly 

prohibited by the consent decree that broke up AT&T. 

The act also contained the stick of potential FCC fines, injunctive 

relief orders for non-compliance with the local market opening provisions of the act, or withdrawal of long-distance authority. In addition to this regulatory scheme, the antitrust laws and treble damages served as a pro-competitive bulwark to moderate the anti-competitive potential of newly vertically-integrated telecom providers. 

But if today the carrot has been eaten, since RBOCs have received approval to offer local and long distance, and the FCC has 

decided to no longer wield the stick of regulatory enforcement, 

what legal incentives remain to promote local competition and discourage anti-competitive behavior by ever larger incumbents in the 

telecommunications marketplace? 

As intermodal competition and new technologies such as Voice 

Over Internet Protocol continue to shape the telecom marketplace, 

the antitrust laws serve as a tested and vital tool to prevent 

vertical monopolization of broadband and the Internet backbone. 

3

As Congress moves forward in the telecom debate, the Committee on the Judiciary will play a vital role in any rewrite of the 

Telecom Act, by protecting and promoting meaningful competition 

in this marketplace, defending the primacy of the antitrust laws, 

examining the need for State tax preemption to maintain a level 

playing field, encourage promising pro-competitive technologies, 

and ensuring that the Communications Assistance for Law Enforcement Act (CALEA) and other law enforcement tools are properly updated to reflect changing technology in the communications 

marketplace. 

Let me conclude by observing the following: Some critics contend 

that political conservatism and respect for the free market are 

somehow inconsistent with a commitment to antitrust. However, to 

paraphrase Chairman Sensenbrenner, as a conservative who adheres to the primacy of free markets, I believe the proper application of the antitrust laws serves to preserve and promote the integrity of the free market upon which America’s economic prosperity 

and consumer welfare depend. 

I look forward to the testimony of the witnesses, and I now yield 

to the Ranking Member, Mr. Conyers, for opening remarks. 

Mr. CONYERS. Thank you, Mr. Chairman—while the other Chairman is signing the—or is watching the President sign the Bankruptcy Act. I want to welcome this particular panel of witnesses because of the long experience they bring to the subject matter today. 

First of all, it’s important that this Committee make it clear that 

our jurisdiction has been here; we were there for the 1996 act; 

we’re going to be here now. And we want to begin to examine, 

along with anyone else in Congress that wants to, the very important issues that are involved here. 

Now, several things become clear. Since 1996, we’re not so sure 

of how successful that Telecommunications Act was. Lots of problems have come up. The main one, of course, is that telecom keeps 

changing; new developments, unforeseeable. And we also have a— we have some Bells, or former Bells, that are very determined to 

keep, and expand as much as they can, their area in the fields that 

they started in. 

So I’m looking for Mr. Grivner and Mr. Moir to explain to us why 

there may be an exception to my general rule against mergers. The 

general rule is: Mergers drive up costs, take choice away from consumers, and bring back the monopoly experience that we had up 

until 1984. Now, I’m perfectly aware that Mr. Kellogg and Mr. 

Verveer may have another position to add to this discussion, which 

makes this a very good panel. 

I’m particularly impressed with those of you who feel that the 

Trinko decision, which involves us greatly in Judiciary—namely, 

that antitrust is a very important concept, which brought about the 

breakup in ’84 to begin with—has not been vitiated by the fact that 

we have regulatory agencies over the Telecommunications Act. 

Antitrust exists with or without regulatory supervision. And so 

it’s hard for me to think that we should go much longer without 

taking some action to limit the effect and implications of Trinko.

What we are dealing with now is a very sensitive market. And 

we have proposals for mergers that are very compelling, in one 

sense. That is that, without which, we may not have any large, 

4

global telecommunications operation anywhere, if we don’t view 

these things in the context of where we find ourselves today. 

So for more than a century, antitrust laws—an economic bill of 

rights, if you will—have provided the ground rules for fair competition. It’s even more true today than they were at the time of the 

Sherman and Clayton Antitrust Acts. And so, Mr. Chairman, I join 

with you in looking forward to the testimony of the gentlemen before us today. 

Mr. CANNON. Thank you, Mr. Conyers. And I also thank you for 

pointing out that Mr. Sensenbrenner would be here but for the fact 

that he’s down at the White House with the President signing the 

bankruptcy bill. 

I’d ask unanimous consent that all Members be allowed to submit their opening statements for the record. So ordered. 

Let me now introduce our witnesses. Our first witness is Carl 

Grivner. Mr. Grivner is chief executive officer of XO Communications. He appears today on behalf of XO and its competitive industries trade association, Comptel/ALTS Alliance and Association for 

Competitive Telecommunications. Mr. Grivner’s career in telecom 

and technology spans over 25 years, where he has held senior executive positions in a variety of telecom companies. He graduated 

with a bachelor’s of science in biology from Lycoming College. 

Our second witness is Brian Moir, an attorney for the e-Commerce and Telecommunications Association. Mr. Moir previously 

served as chief counsel for the House Energy and Commerce Committee, staff attorney for the FCC, and assistant corporate counsel 

for Tele-Communications, Inc. He received his juris doctorate from 

the University of Denver, where he was honored with the International Legal Studies Award, and was a member of the Denver 

Journal of International Law and Policy. 

The third witness is Michael Kellogg, a partner in the Washington, D.C. law firm of Kellogg, Huber, Hansen, Todd, Evans and 

Figel. Mr. Kellogg appears today on behalf of the United States 

Telecom Association. He served—he previously served as an assistant to the Solicitor General at the Department of Justice. Mr. Kellogg graduated from Stanford University and Harvard Law School, 

where he was the editor of the Law Review. 

And the final witness is Philip Verveer, a partner in the telecommunications department of Willkie Farr and Gallagher. Mr. 

Verveer previously served as the antitrust counsel at the Department of Justice during the original filing of divestiture against 

AT&T, and as a supervisory attorney in the FCC’s Bureau of Competition. He graduated from Georgetown University, and received 

his juris doctorate from the University of Chicago. 

Now, it is our habit to swear our witnesses in, so if each of you 

would please rise and raise your right hand, I’ll administer the 

oath. 

[Witnesses sworn.] 

Mr. CANNON. The record should reflect that each of the witnesses 

answered in the affirmative. 

Thank you. You may be seated. Without objection, the written 

statement of each of the witnesses will be included in the record 

as part of their testimony. 

5

We would like to ask the witnesses to confine their remarks to 

5 minutes. We don’t expect you to just stop, but if it goes—you’ll 

see before you a light panel that goes green and then, when you 

have 1 minute left, yellow, and when you have finished the five—

and I may tap my pencil or something, just to remind you. We will 

have a 5-minute rule here in the panel and so you’ll have, I suspect, quite a bit of time to respond to questions as we continue. 

Thank you. 

Mr. Grivner, would you like to begin? 

TESTIMONY OF CARL J. GRIVNER, CEO, XO COMMUNICATIONS, 

INC., ON BEHALF OF COMPTEL/ALTS ALLIANCE AND ASSOCIATION FOR COMPETITIVE TELECOMMUNICATIONS 

Mr. GRIVNER. I would. Good afternoon. My name is Carl Grivner. 

I am CEO of XO Communications. And after that introduction, I 

am glad my son John is going to get his law degree, and not to 

have to sit in front of a panel again with just a bachelor’s degree. 

So, thank you for the introductions. 

I am CEO of one of the nation’s largest facility-based providers 

of telecommunications and broadband services to business customers. XO is headquartered in Reston, Virginia. We have nearly 

5,000 employees nationwide. It was formed in 1996. 

XO has expanded its telecommunications offering from its original four small markets, to more than 70 metropolitan-area markets 

in 26 States today, serving nearly 200,000 business customers. 

Today I’m also testifying on behalf of our association, Comptel/

ALTS, an association representing over 350 competitive companies 

and entrepreneurs in the telecommunications industry. 

I want to first thank the Chairman and Ranking Member Conyers for inviting me to testify before the Committee on the competitive ramifications of the SBC acquisition of AT&T, and the Verizon 

acquisition of MCI. These mergers are truly monumental in scope, 

as they seek to join the largest telephone monopolies with their 

largest competitors. 

There is no doubt that these mergers will reduce the amount of 

competitive choices for your individual constituents and businesses. 

With the loss of AT&T and MCI, future competition between the 

incumbents and the remaining competitors will be, in a word, a 

mismatch. 

My written testimony addresses a number of our concerns in detail. However, I’d like to highlight a number of specific points that 

we hope the Members of the Committee will consider. 

First, the SBC-AT&T merger and the proposed Verizon-MCI deal 

will fundamentally reshape this industry; marrying the two largest 

local telecommunication providers with their two largest competitors. Only the breakup of AT&T in 1984 and the 1996 Telecom Act 

can compare to the massive industry restructuring that will result 

from these mergers. 

Second, these mergers are particularly harmful to business customers, both retail and wholesale, in local markets. We have gathered for the subcommittee preliminary, high-level data that demonstrates the substantial injury that occurs. The charts here, which 

use the same data employed by the Bells in the FCC’s triennial reVerDate 0ct 09 2002 13:19 Jul 11, 2005 Jkt 000000 PO 00000 Frm 00009 Fmt 6633 Sfmt 6601 G:\WORK\FULL\042005\20708.000 HJUD1 PsN: 20708
6

view process, provide a sobering look at what these mergers can do 

to local competition. 

The first set of charts shows the current status of competition in 

Cleveland and Milwaukee, as measured by the presence of competitors in commercial buildings. AT&T is in red, with all the other 

CLECs in green. Indeed, competitors have made some headway in 

these local markets. 

The second chart shows what these markets will look like after 

the mergers, with the removal of AT&T. You will notice that the 

markets are significantly altered. The presence of competitive providers drops a staggering 53 percent for Cleveland, and 64 percent 

in Milwaukee. In other words, the competitive injury to customers 

from AT&T exiting the market will be real and substantial. 

And don’t expect alternative providers to make up this competitive gap. AT&T is unique. It entered local markets with an enormous advantage. It had tens of millions of long-distance customers, 

including relationships with top business customers throughout the 

country. It had tremendous financial resources; $11 billion of which 

it spent to acquire the largest local provider, Teleport, that it continued to expand its local network. The only other local competitor 

with similar resources is MCI. And as I am about to demonstrate, 

post-merger it, too, will not fill this gap. 

The next chart depicts the effect of MCI’s departure from the 

market. You can see that the competitive presence declines further; 

a total of 61 percent for Cleveland, and 70 percent for Milwaukee. 

The reason we took MCI out of the market leads me to my third 

point regarding these mergers. No one should expect that SBC and 

Verizon will compete head-on. Today, SBC and Verizon are the 

number one and number two local telephone providers. 

In the handouts that were provided to you, you will see that in 

the Los Angeles market SBC and Verizon share common geography; and yet, neither is really competing in the other’s territory. 

So why should we assume that when we complete these mergers 

and they are approved that they will compete then? 

SBC and Verizon operate under that old, Cold War principle of 

‘‘Mutually Assured Destruction.’’ Each company is a mirror of the 

other, and each knows the other has an overwhelming competitive 

advantage in its home territory. So why attack, and face annihilation? Better to operate under a strategy of containment. 

The basic fundamentals of antitrust law demand a thorough examination of these mergers. It is not consolidation, per se, that is 

a paramount concern. It is the massive concentration and the injury to customers that result. 

This Committee has maintained its dedication to preserving the 

applicability of U.S. antitrust laws to the telecommunications industry. With the Trinko decision by the U.S. Supreme Court, antitrust actions are now limited in addressing anti-competitive acts in 

the telecommunications industry. In other words, no one should 

count on the current Government oversight scheme to correct any 

competitive abuses post-merger. 

The Committee does retain its jurisdiction over section 271 of the 

’96 act, which elevated the Department of Justice role in examining 

competitive conditions and local markets before the FCC could approve a Bell’s application to provide long-distance service. With the 

7

two largest Bell companies planning to purchase the two largest 

long-distance carriers, it is important that incentives exist to ensure they maintain open local markets. 

We hope that steadfast resolve will continue as Congress examines the proposed mergers we are discussing today. Thank you for 

your time today. 

[The prepared statement of Mr. Grivner follows:]

PREPARED STATEMENT OF CARL GRIVNER

Good afternoon. My name is Carl Grivner and I am CEO of XO Communications, 

one of the nation’s largest facilities-based providers of telecommunications and 

broadband services. Prior to joining XO as CEO in 2003, I served as Chief Operating 

Officer for Global Crossing and held various positions at telecommunications companies including Worldport, Cable & Wireless, and Ameritech. I am appearing here 

on behalf of XO and our competitive industry’s trade association, Comptel/ALTS. 

I want to thank the Chairman and Ranking Member for inviting me to testify before the Committee on the competitive ramifications of the SBC acquisition of AT&T 

and the Verizon acquisition of MCI. These mergers are truly monumental. They join 

the largest incumbent telecommunications providers, SBC and Verizon, with their 

largest competitors, AT&T and MCI. As a result, competition is certain to diminish 

in markets throughout the country. I am confident that once the government reviewers examine the evidence in depth, they will find these mergers cause substantial competitive injury to customers, competitors, and vendors. As such, they do not 

meet the legal standards for approval. 

You are to be commended for understanding the important implications of these 

mergers. I urge you to follow-up on this hearing by pressing the merging parties 

to completely produce and disclose all information and by ensuring the Department 

of Justice and Federal Communications Commission undertake in-depth analysis of 

all possible competitive harms. 

Let me begin by telling you about XO Communications, the largest independent 

competitive local exchange carrier. I believe who we are and what we bring to customers is particularly relevant to issues before the Committee today. 

BACKGROUND ON XO COMMUNICATIONS

Originally formed as Nextlink in 1996, XO has expanded its telecommunications 

offerings from its original 4 small markets to 70 metro area markets in 26 states. 

Our company provides a comprehensive array of voice and data telecommunications 

services to small, medium, and large business customers. Our voice services include 

local and long distance services, both bundled and standalone, other voice-related 

services such as conferencing, domestic and international toll free services and 

voicemail, and transactions processing services for prepaid calling cards. XO data 

services include Internet access, private data networking, including dedicated transmission capacity on our networks, virtual private network services, Ethernet services, and web hosting services. XO has invested heavily in building its own facilities spending over $8 billion and 

constructing over 1.1 million miles of fiber. We have metro fiber rings to connect 

customers to our network, and we own one of the highest capacity and scalable IP 

backbones in the industry, capable of delivering data end-to-end throughout the 

United States at speeds up to 10 Gigabits per second. 

Even with this extensive network, we are nowhere close to having ubiquitous onnet coverage—and after AT&T and MCI, we can be considered the nation’s largest local competitive carrier. To build such a network would require over $100 billion 

and many decades to construct—not to mention monopoly rights like the Bells have 

had. Instead, we reach most customers by procuring facilities or circuits from other 

providers. The major suppliers are the Bells, from whom we lease loop and transport unbundled network elements (pursuant to the Telecommunications Act of 1996) 

and special access circuits. Where we can find competitive alternatives, we will use 

them, since their prices tend to be lower, and they actually want to do business with 

us. 

INTRODUCTION TO THE MERGERS

For 40 years, it has been the innovation of entrepreneurial companies coupled 

with market opening regulations that have brought choice to customers and new 

technologies and services to the market. This tradition is continuing with the numerous competitive companies that are creating new ways to serve customers using 

8

cutting edge technologies. However, the choice customers have seen and the dramatic growth in innovation that has occurred in our industry, started by the break 

up of Ma Bell, is now threatened by SBC’s acquisition of AT&T and Verizon’s cur- rent deal to purchase MCI. 

Whenever companies of this scale merge, there are always the same warnings, 

and rightfully so. Here are some comments,

‘‘This merger should not be approved as it presently stands because it will limit 

rather than promote local exchange competition. The proposed merger constitutes a setback for consumers. Furthermore, we saw that when SBC took 

over Pac Bell, prices rose and service dropped in California.’’

‘‘It’s hard to see how new competition promised by the Telecommunications Act 

can be attained if existing monopolies simply combine into larger ones. The concern is especially great when these two companies otherwise would have had 

powerful incentives to compete against each other.’’

By the way, these comments were made by AT&T at the times of SBC’s acquisition of Ameritech and the Bell Atlantic-NYNEX merger. 

With such increased concentration of power coming to both the business and residential consumer telecom markets what will be the impacts on competition and innovation? 

I will begin by putting the mergers in context of the development and status of 

telecommunications competition, particularly in local markets. 

THE DEVELOPMENT AND STATUS OF TELECOMMUNICATIONS COMPETITION

No discussion about the telecommunications industry can take place without recognizing the unique nature of the business. The Bell Operating Companies and 

other incumbent local companies are not like other American businesses. By virtue 

of having the sole local telephone franchise for so many years, they have developed 

an enormous degree of market power. As a result, they have the incentive and ability to harm customers, competitors and vendors. 

The government has sought to rein in this market power by regulating the provision of their services and often by restructuring them or limiting their operations. 

The most well known effort at restructuring by the government was the 1984 divestiture of AT&T of its local telephone operations (the birth of the ‘‘Baby Bells’’). It 

created SBC and Verizon, which in the past decade have swallowed 3 of the 7 original Bell companies—and, in the case of SBC, now seeks to acquire its former parent, 

putting the old Bell system back together again. 

In 1996, Congress believed it could eliminate this market power and bring to customers the same benefits in pricing and innovation for local service that were being 

seen in the long distance market. The Telecommunications Act of 1996 was a watershed law, and it set in motion a massive undertaking: bringing competition to a 

market dominated by monopolists where tremendous amounts of capital needed to 

be expended up front and where returns on investment would not be appreciable 

until economies of scale were reached. 

To expedite this process and enhance the chances of success, Congress adopted 

two fundamental policy mechanisms. First, it permitted the FCC to lift the 1984 

Consent Decree provision prohibiting the Bells from entering the long distance business, but only if the Commission found the Bells provided competitors access to 

their networks at non-discriminatory and pro-competitive terms. This was the socalled ‘‘carrot.’’ Second, it adopted a ‘‘stick’’—the Bells were immediately required 

to offer competitors access to unbundled network elements at cost-based rates. 

It is clear from the Congressional debate on the 1996 Act that AT&T and MCI, 

the two largest long distances providers, were seen as the leading companies to 

enter the local markets. And, they did. Right after the Act was passed, AT&T 

bought Teleport for over $10B, and MCI bought MFS and Brooks Fiber for over 

$5B—the three leading facilities-based local telecommunications competitors. Since 

then, AT&T and MCI have expended many billions of dollars to expand and enhance 

these local networks. They have acquired about10 million local residential customers and many millions of business customers. 

As a result of this surge in local entry, the FCC permitted SBC and Verizon to 

enter the long distance business in every market, and it most recently significantly 

deregulated the requirement that these companies provide unbundled network elements at cost-based rates. 

Yet, even though AT&T and MCI have gained a toehold in local markets, facilities-based competition is just beginning, and there is a real question whether it can 

be sustained. Since I know this business first hand, I know how difficult it is. To 

truly sustain competition, these firms needed to gain scale. AT&T and MCI were 

9

the closest to that goal. They had developed sufficient market presence to negotiate 

with the Bells on a more equal basis, and the beneficial prices, terms and conditions 

in their agreements became benchmarks for the entire competitive sector. 

Now we are faced with the two largest competitors being snapped up by SBC and 

Verizon, and the resulting competitive harms to customers and the overall market 

landscape are easy to detect are substantial. 

THE EFFECTS OF THE MERGERS ON TELECOMMUNICATIONS COMPETITION

Ten Myths about Competition and the Mergers 

When the mergers were announced, the leaders of the merging parties carried on 

endlessly about synergies, efficiencies, innovation, globalization, and other corporate 

buzzwords. Their PR departments worked overtime to paint these mergers as good 

for all Americans and all businesses. I’m not surprised. They’ve got a big job convincing people that greater market concentration is good for them. I’ve gone through 

many of their arguments and selected my top ten list of myths used by SBC and 

Verizon to support these deals. 

First, they claim these are ordinary, garden-variety mergers. Nothing could be 

farther from the truth. As I said at the outset, they will fundamentally reshape the 

industry. We have seen such events before and so have a sense of their importance 

in the marketplace. In the 1980s, it was the divestiture of AT&T. In the ’90s, the 

1996 Telecommunications Act. In this decade, it is these two mergers, and the reason is obvious. These mergers marry the two largest local telecommunications providers with their two largest competitors. 

SBC and Verizon are the two dominant local telephone companies, controlling 

their own local markets (for instance, with a residential market share exceeding 

80%) and providing service to 3 out of 4 customers nationwide. In these markets, 

their bottleneck control has only begun to be eroded by a decade of competition. Yet, 

in the very short time they have been permitted to enter the long distance business, 

SBC and Verizon have begun the second and third largest providers. Their residential market shares are about 50% and 40% respectively. These two behemoths also 

have a firm grip on the wireless market, again controlling almost two-thirds of the 

customers in the country. And now, they seek approval to merge with the two most 

prominent local, long distance, and Internet competitors. 

Second, don’t be fooled by all the rhetoric that the telecommunications industry 

is somehow so completely different than ten years ago when Congress passed the 

1996 law. The basic rules about marketplace competition still apply, and this is precisely where antitrust enforcement and the public interest inquiry need to be focused. Companies like SBC and Verizon, which control bottleneck facilities, have 

both the incentive and ability to use their market power to harm customers, competitors, and vendors. What’s more, they have an insatiable appetite to use that 

power to leverage themselves into markets that are competitive where they will use 

their monopoly rents to harm competition. 

Third, it has been ten years since Congress opened local telecommunications markets, and competition is just beginning to take hold. Many companies have entered, 

but they face well-entrenched monopolists—companies that have 100% of the customers and their entire, capital intensive network in place. It will take time to 

achieve true facilities-based competition. XO embraced the intent of the market 

opening provisions of the 1996 Act and invested $8 billion in its own infrastructure. 

As one of the major new entrants seeking to compete on a facility-by-facility basis, 

we want to see the law’s objective achieved. But, local competitors still have a small 

share in most markets, and this share will diminish substantially if these megamergers are consummated. 

Fourth, should the mergers receive approval, don’t expect SBC and Verizon to 

compete head-on. It goes against their basic constitution. Over the past decade, both 

companies have had numerous opportunities to compete in each other’s markets, 

and they just don’t do it. In several major markets—such as Los Angeles, Dallas/

Plano, and New York/Connecticut—their territories abut, and yet neither crosses 

over. In the SBC-Ameritech merger, the FCC placed conditions on SBC to compete 

outside its region, and it made only the most minimal effort. I’ve tried to obtain SBC 

service here in Washington and had no luck. The reason is easy to understand. SBC 

and Verizon each know that it has a significant cost advantage in its home market. 

Consequently, they have, in effect, a tacit non-aggression pact. With these mergers, 

the value of this pact increases immeasurably. 

Fifth, the joke in the old Bell System was that every customer had a choice: a 

black rotary phone or a black rotary phone. Plastic shells with different colors were 

a major innovative breakthrough that took decades to come to market. No one seriously believes that companies with market power innovate. They don’t have the inVerDate 0ct 09 2002 13:19 Jul 11, 2005 Jkt 000000 PO 00000 Frm 00013 Fmt 6633 Sfmt 6621 G:\WORK\FULL\042005\20708.000 HJUD1 PsN: 20708
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centive because these innovations could spin out of control and inject new competitive forces. It was only when the government enabled competitive entry that innovation blossomed. DSL, VoIP, managed services for businesses all were first brought 

to market by competitors. Consequently, because the mergers greatly reduce marketplace competition, there is absolutely no way innovation will burgeon. Rather, it 

will be stifled. At a time when our global leadership is being challenged, this would 

be a disaster. 

Sixth, once these mergers are approved, there is no government backstop. By virtue of deregulatory actions by the FCC combined with activist court review, the government has largely ceded its oversight role of SBC and Verizon. In addition, with 

the Trinko decision by the U.S. Supreme, antitrust actions are hardly useful to address anticompetitive acts in the telecommunications industry. In other words, no 

one should count on the current government oversight scheme to correct any competitive abuses post-merger. 

Seventh, by any objective measure, AT&T and MCI are not failing firms. In fact, 

both were just named to the ‘‘Fortune 100.’’ You can’t get much more successful than that. AT&T had revenues of over $30B in 2004; MCI over $20B. In the 4th 

quarter of last year, AT&T’s EBITDA was $7B, and MCI’s was $2B. In the second 

half 2004, both companies experienced growth in their EBITDA. A recent Wall 

Street analyst report forecasts that both companies will have positive earnings for 

the next two years. So, there is absolutely no support for justifying these mergers 

based on the business weaknesses of AT&T or MCI. 

Eighth, the merging parties tout the synergies and efficiencies of the deals, particularly because SBC and Verizon can place their long distance traffic on AT&T’s 

and MCI’s networks, respectively. But, they already have that capability. Because 

the long distance market is extremely competitive, efficient ‘‘integration’’ can occur 

via contract. In other words, all SBC and Verizon need to do is enter into an arm’s 

length agreement with AT&T and MCI respectively to obtain the very same benefits 

they claim to be obtaining with the mergers. They also have the possibility of forming other relationships short of merging—all in the name of greater efficiency. 

Ninth, SBC and AT&T claim that AT&T’s decision to exit the local residential 

market is irreversible, but this flies in the face of AT&T’s actions of the past 20 

years. In that short time, AT&T has reversed course so often it makes my head 

spin. First, they’re out of mobile wireless, then in, then out, and then in. As for fixed 

wireless, they have had so many starts and stops that it gives you whiplash. And, 

then there’s the entry and exit into the cable business combined with more recent 

discussions with cable operators about possible partnerships. As a CEO in a dynamic industry, much of this is understandable. Technologies and markets change. 

Any decision can be reversed given the proper circumstances. 

Tenth, contrary to the public filings of the acquiring companies, these mergers 

will not improve the national security of this country or otherwise improve the telecommunications services received by the federal government. AT&T and MCI are 

already prominent government contractors, as are SBC and Verizon, and they are 

providing the government with innovative, high-quality services. If they remain 

standalone entities, they would continue to provide these services. In fact, it is the 

mergers—by reducing competition and combining networks—that will generate significant problems for the government. First, it is likely government will end up paying more for telecommunications services. In addition, just when the government 

wants to have a diversity of facilities to increase the odds of survivability of the network, these mergers combine the largest local networks. These are problems that 

must be addressed by the government reviewers of the mergers. 

The Merger Review Process: It is Essential that the Department of Justice and FCC 

Conduct a Rigorous Examination with Complete Information 

Because of the magnitude of these mergers—their impact on the entire telecommunications marketplace—and their evident competitive problems, the Department of Justice and the Federal Communications Commission (along with the relevant states) have an obligation to carry out a thorough, deliberate review. In a very 

real sense, these mergers pose a test to these government officials and to the value 

and integrity of these merger review processes. I very much want them to pass this 

test. 

I believe it is critical that these mergers be reviewed through the ‘‘regular order.’’

That is, the Department of Justice needs to gather complete information to identify 

markets, pre- and post-merger concentrations, barriers to entry and exit, and other 

relevant features of market, and then through application of the Merger Guidelines 

it should determine whether these mergers substantially diminish competition in 

those markets. And, the FCC needs to do the same in application of its public interest requirements. As I’ve said, razzle-dazzle and hype about futuristic competitive 

11

alternatives or distant possibilities for market convergence have no place in such 

an analysis. Determinations need to be based on facts engrained in current market 

realities, and I believe once this is done the conclusion will be clear: these mergers 

are bad for customers of all types and sizes and in all locations. 

In undertaking this analysis, it needs to be made clear that neither of the filings 

at the FCC by SBC and Verizon provide much relevant data on the mergers. One 

could characterize them as long on rhetoric and short on evidence. They were filed 

quickly after the mergers were announced so that they could get the clock running 

as soon as possible. Because of this, I call upon the Committee to urge the Department of Justice and FCC to ask for complete information upon which all of us can 

review the mergers—and the clock should be stopped until that occurs. 

Local Markets, Increased Concentration, and Competitive Harms 

XO believes that on their face these mergers pose serious competitive concerns 

and is confident that upon closer scrutiny will fail to meet legal standards. We are 

now beginning the detailed analysis required to determine precisely the competitive 

harms. This is going to take months given the many markets involved in these 

mergers, the difficulty in gathering data (particularly data controlled by the merging parties), and then the complex analysis that will need to be conducted. That 

said; let me provide some preliminary thoughts about the basic issues involved here. 

First, market definitions should be based on well-engrained concepts and current realities. 

Applying traditional antitrust analysis—and following the precedent in all recent 

telecommunications mergers—the relevant product and geographic markets for analyzing the effects on competition of the proposed transactions include: the local highcapacity service market, the local mass market, the long distance termination market, and Internet access and backbone markets. For my company—and for business 

customers—the most important market is the first—the market for high-capacity 

local services. 

I know that the proponents of the merger allege that the underpinnings of the 

telecommunications business have changed so dramatically that these market definitions should be scrapped. They allege that geography doesn’t matter and that all 

products are fungible. That may be the case some day far down the road. But, that 

isn’t true today, and it is within the current market context that we need to evaluate these mergers. 

Second, the local high-capacity market will see increased market concentration. 

By virtue of their century-old monopoly, SBC and Verizon serve the vast majority 

of customers in these markets—both retail and wholesale. Their market share for 

the provision local exchange services to business customers in almost all local markets is somewhere between 80%–95% depending on the market. They also provide 

the dominant share of wholesale circuits to competing providers. AT&T and MCI are 

the two largest competitors in virtually every local market—dwarfing the rest of the 

CLEC industry. In two markets—Cleveland and Milwaukee—where XO has conducted a preliminary inquiry (based on a methodology similar to that used by SBC 

last year in a submission in the FCC’s Triennial Review Process), it has found that 

the presence of competitors will diminish substantially when AT&T is acquired. 

And, none of the competitors that remain—of which XO is the largest—have the resources to replace them any time soon. As a result, when these combinations are 

completed, the SBC and Verizon will increase their local market concentrations significantly. 

Third, local market entry cannot occur expeditiously. 

Such significantly increased concentrations are troubling, but they could be offset 

if other competitors could rapidly enter to replace the local facilities and competitive 

presence of AT&T and MCI. However, this simply won’t occur. It’s important to understand that AT&T and MCI developed their local presence because of the tens of 

millions of long distance customers they had and their enormous financial strength. 

Once AT&T’s and MCI’s local facilities are bought, they will be integrated into the 

Bell’s facilities and won’t continue to be available on the current standalone basis. 

(As I said earlier, SBC and Verizon have been reluctant to pursue opportunities outof-region, and they have the incentive to continue this practice even after they acquire AT&T’s and MCI’s facilities that are out of their home territories.) Thus, both 

retail customers and carriers who resell their capacity are left without real alternatives. 

12

Fourth, after AT&T and MCI exit, customers will see significant price increases. 

Once AT&T and MCI exit the market, SBC and Verizon have an increased opportunity to raise prices to its customers. This harms competitors directly, and because 

it increases the prices of their inputs, it places the competitors at an extreme disadvantage against the Bell company in acquiring retail customers. This is the very 

definition of substantial harm to competition. 

CONCLUSION

Ten years ago, Congress committed the government to the development of local 

telecommunications competition. Entrepreneurs took that commitment seriously, 

and many tens of billions of dollars were expended to build a competitive local market presence. Not surprisingly, in the gold rush atmosphere that ensued after passage of the 1996 Act, more firms entered than could succeed. A shakeout occurred, 

and a group of more financially and operationally sound competitors have survived. 

This competition benefits all customers. 

Now, however, competition is threatened by these mergers, and it is time for the 

government to stand tall. I urge you to take this opportunity to renew your commitment to the development of local competition. These mergers require very careful 

and deliberate investigation—and, as we will prove, would produce serious competitive harms that must be addressed.

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Mr. CANNON. Thank you, Mr. Grivner. 

Mr. Moir? 

TESTIMONY OF BRIAN R. MOIR, ATTORNEY AT LAW, ON BEHALF OF e-COMMERCE AND TELECOMMUNICATIONS ASSOCIATION (eTUG) 

Mr. MOIR. Thank you, Mr. Chairman. My name is Brian Moir, 

and I’m here today on behalf of the large business users that Carl 

just referred to. I’m going to devote my oral testimony to discussing 

many of the abuses that we’ve been experiencing in the industry. 

Unfortunately, what we find is that the Bell operating companies—as they did in ’96, as they did earlier—today still retain pervasive market power. And these market powers are over the provision of these access services that everybody is dependent upon in 

order to move traffic within the ILECs, and particularly the Bells 

networks. 

Their market power continues to have meaningful levels and, as 

a consequence, business users and the potential customers that are 

dependent upon accessing those facilities for terminating traffic, for 

moving traffic within a region, are all suffering. 

Had the FCC and other Government policymakers been doing 

their job, many of the abuses I’m going to discuss here today would 

not have either happened, or would not have reached the level of 

severity that they have. 

Unfortunately, the FCC’s fallen down on the job. They haven’t 

implemented the goals and objectives that many of you were talking about during the ’96 act. And the rest of the industry is suffering. And we have companies now looking for suitors, because 

they find that the best way to preserve shareholder value. 

The Bell market power, as I mentioned earlier, continues. And 

in particular, unlike most of the areas that get attention, which are 

more what I call retail residential, the perspective I want to talk 

about is particularly what I call the large business customers. We 

use huge data pipes. Cellular, the wireless services, don’t have the 

throughput rates—the band width, throughput rates—necessary for 

the traffic that we move, and at the speeds we need to move them 

at. The cable television services that they provide to our homes also 

don’t have the capability, the throughput rates, the speeds, that we 

need to handle our type of traffic. 

And as a consequence, given the fact of the limited number of 

areas where the CLECs have been able to deploy facilities, and the 

additional problem that we just saw of then getting access to the 

various buildings that allow them to actually tie into the customer 

operations, we find that for the basic building blocks in our networks, which we call DS-1 lines—they’re about 64 times the capacity of the typical voice lines we get at home. These DS-1 facilities, 

the most recent end-user study, where we actually go out and analyze the number of lines a customer is using, 95 percent of those 

lines are being provided by the Bells. Why? Because there aren’t 

any other alternatives to utilize. 

That same type of study is being replicated and reinforced by 

what we’re hearing from the wireless industry. All of the cellular 

towers in the United States have to be tied into their networks. 

They use these same building blocks that business users use, and 

25

their results—the only ones we look at are the non-Bell-owned 

ones; Nextel, AT&T Wireless before they became part of the Bellowned Cingular system—found 90 to 95 percent of their towers 

were dependent upon the same blocks that we are dependent upon 

day in and day out. 

What’s happened to the rates of return they’re making off of 

these services? Well, what’s happened is, in 1999, the FCC didn’t 

say there was competition in this market for these what we call 

high-capacity pipes that we use; they made a predictive judgment 

that competition would come. You know, like the ‘‘Field of Dreams.’’ Unfortunately, you know, these alternative facilities were never 

built; the competition never came to sufficient meaningful levels 

that you all are normally accustomed to looking at. And as a consequence, rates have gone up for these building blocks that we 

have no choice but to use, because there’s no other market. 

And the rates of return—things the Bells don’t like to talk about, 

but which any of us, when we analyze how companies are doing in 

the market, whether for business purposes or investment purposes, 

we look at rates of return. The market rules were changed in ’99. 

The Bells are now making, as of 2004: SBC, 76.2 percent, an increase of 93 percent from 1999; Bell South, now making 81.9 percent, an increase of 153 percent over 1999; Qwest, 76.8 percent return on these services, an increase of 139 percent since 1999. I can 

go on, but these are the things that are happening. And the FCC, 

even though they have the data, has done nothing to rectify the 

problem. 

So you could ask, why are the Bells, why are the CLECs, why 

are the wireless companies using these same facilities? Because for 

the majority of their needs, they don’t have any choice, either. 

[The prepared statement of Mr. Moir follows:]

PREPARED STATEMENT OF BRIAN R. MOIR

Thank you for the invitation to submit testimony on ‘‘Industry Competition and 

Consolidation: The Telecom Marketplace Nine Years After the Telecom Act’’ from 

the perspective of the large commercial and institutional end users of electronic 

commerce, information technologies (‘‘IT’’), Internet, and telecommunications products and services. Mr. Chairman, you and the Committee should be commended for 

your efforts to examine the telecom marketplace because significant problems to 

exist. I hope that the perspective of the large telecom end user will facilitate the 

Committee’s deliberations by identifying some market realities and policy objectives 

that warrant serious attention. 

INTRODUCTION

I have been representing the interests of the large end users of telecom services 

and products, as well as electronic commerce, IT, and the Internet for approximately 

24 years. Through out that time large end users have consistently stated that competition is the ultimate safeguard for the telecom industry. In the absence of meaningful competition, just, equitable, and reasonable regulations, prices, policies and 

laws are necessary. My testimony will cover some of the problems within the 

telecom marketplace as well as regulatory policies. 

LARGE END USER DEPENDENCE ON TELECOM

Large end users of electronic commerce, IT, Internet, and telecom services and 

products face competitors here in the U.S. and abroad in both technologically developed countries as well as low-wage and less-developed countries. To compete in 

these markets, large end user businesses have an absolute need for timely, accurate, 

cost-effective information that can be made available on demand. To accomplish 

this, large end user companies typically obtain, operate, maintain, and utilize cutting-edge technologies. 

26

Large end user businesses have become increasingly dependent on efficient, reliable, readily available, and reasonably priced telecom services and facilities. Public 

policies that promote increased competition and user choice in those areas of the 

telecom marketplace that are already subject to competition while at the same time 

fostering meaningful competition where it is not fully available by providing just, 

equitable, and reasonable prices, regulations, policies, and laws significantly benefit 

large end user businesses and the American economy. 

The U.S. telecom marketplace has evolved over many years. Beginning around the 

early 1970’s, it was the large end user customers, not the then monopoly suppliers, 

who developed new and innovative methods of using the many technological telecom 

advances. As a consequence, large end users were forced to go outside the traditional providers of telecom services, such as the old Bell System, to obtain the technologies and services necessary to meet their growing requirements. This promoted 

new industries to develop equipment, information technologies, and transmission 

systems to meet these new and ever expanding user needs. 

As the U.S. telecom marketplace evolved technologically, the traffic that transited 

the transmission systems evolved as well. What began as largely voice related traffic 

has now evolved to a point where the vast majority of large end user traffic is data. 

While the voice component has remained somewhat flat, the data component has 

been experiencing explosive growth. As a consequence, large end users largely focus 

their attention on ensuring that their data will be handled in a high-quality, costeffective manner. 

TELECOM MARKETPLACE

Federal Communications Commission (‘‘FCC’’) decisions in the 1970’s and 1980’s, 

anti-trust actions and the AT&T Consent Decree triggered developments that lead 

to a healthy competitive environment (with the exception of the local telephone market) that has been capable of providing state-of-the-art telecom and IT services and 

equipment to large end user businesses. Many had hoped that the 1996 Telecom Act 

would bring the same results to the local telecom marketplace. Even if meaningful 

competition was slow to take hold, many expected that the Act’s provisions (particularly sections 252,252. 271 and 272) would provide relief from some incumbent local 

exchange carrier (‘‘ILEC’’) related problems including access pricing. Views of the 

Act’s impact vary depending upon the supplier or customer market perspective it 

is viewed from. 

A growing percentage of residential and small-to-medium sized businesses have 

access to three different types of technology suppliers (CATV, wireline telco, and 

wireless) of voice services (either traditional voice service or VoIP), as well as 

broadband. Unfortunately, from the perspective of the large end user, the developments have not been as favorable. Due to the unique nature of large end user transmission needs (i.e., vast majority of traffic being data), large capacity transmission 

facilities are required. The transmission speed rates of the typical CATV and wireless service suppliers are just not adequate to meet the high capacity needs of the 

large user community. 

The typical minimum bandwidth or transmission rate required by large end users 

is fulfilled by telecom carrier DS–1 (‘‘digital signal’’) lines that are usually rated at 

1.544 Mbps. [These DS–1 lines have the capacity of 24 voice grade lines if they are 

running at a full 64 Kbps.] Usually, the highest transmission rates typically available with copper wire transmission lines is 44.736 Mbps with DS–3 lines. Much 

higher transmission rates are available thru fiber optical carrier (‘‘OC’’) lines (OC–

1 at 51.84 Mbps thru OC–192 at 9.953 Gbps). 

Today the ILECs are the suppliers of 90%–95% of the basic building block (DS–

1s) in many large user networks. [The ILECs provide these facilities through their 

interstate special access services.] As recent survey of large end user petroleum 

companies indicated that approximately 80% of their large end user DS–3’s were 

provided by ILECs. [See Keller and Heckman Ex Parte in FCC RM Docket No. 

10593 on 1–6–2005.] While ILEC market power at these levels is troubling enough 

to large end users who strive for competitive choices in the markets they depend 

on, what is even more distressing is the fact that the FCC made a predictive judgment in 1999 (based on misinformation from major ILECs) that the ILEC special 

access markets were facing growing competition. As a consequence, the FCC radically changed its interstate special access pricing regulations to allow for pricing deregulation. Despite customer objections, the FCC began to grant ILEC special access 

pricing deregulation the next year with some ILEC rate-of-returns (‘‘ROR’’) on their 

interstate special access services now reaching levels in excess of 80% ROR. These 

types of levels are clearly excessive. These continually escalating returns have occurred because the ILECs have increased their special access prices which is conVerDate 0ct 09 2002 13:19 Jul 11, 2005 Jkt 000000 PO 00000 Frm 00030 Fmt 6633 Sfmt 6621 G:\WORK\FULL\042005\20708.000 HJUD1 PsN: 20708
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tradictory to what the FCC had predicted would happened when it radically altered 

it special access pricing rules in 1999. Even if one used the FCC’s very out-of-date 

authorized ROR of 11.25% as a basis to view the most recent regional bell operating 

company (‘‘RBOC’’) interstate special access revenue data filed with the FCC, it 

would show that their returns are exceeding authorized ROR levels by $6.4 billion 

per year. The ILEC use of their special access market power has clearly resulted 

in excessive charges that serve as a monopoly tax on the critical information needs 

of this Nation’s largest businesses and as a drag on the entire economy. 

Another indicator of the ILECs’ market power for interstate special access services is their use of ‘‘lock-in’’ provisions which ‘‘quite plainly deter special access subscribers from self-deploying facilities or shifting to bypass providers....’’ [See AT&T 

Ex Parte Letter in WC Docket No. 04–313 & CC Docket No. 01–338 on 11–12–2004.] 

While not relevant to the ILEC special access marketplace, the RBOCs have utilized 

a number of long-distance price squeeze strategies aimed at hampering local telephone competition by using their local market power. [See Declaration of Michael 

R. Lieberman & Robert Panerali filed by AT&T in WC Docket No. 04–313 & CC 

Docket No. 01–338 on 10–I22–4–2004.] 

FCC RESPONSES TO ILEC MARKET POWER ABUSES

The FCC responses to ILEC market power abuses and their own mistakes has not 

facilitated the vision of increased competition and lower prices that many were told 

would flow from the 1996 Act’s implementation. 

After growing concerns regarding the effects of FCC’s radical changes to its special access pricing rules in 1999, filing of a Petition for Rulemaking by AT&T in 

2002, volumes of pleadings, and a Mandamus petition, the FCC released the text 

of a Notice of Proposed Rulemaking (‘‘NPRM’’) which finally creates a proceeding to 

review the damage caused by its 1999 predictive judgments. [See In re Special Access rates for Price Cap Local Exchange Carriers, Order and Notice of Proposed 

Rulemaking, WE Docket No. 05–25, 2005 WL 235782 (Jan. 31, 2005).] While the 

FCC’s NPRM raises many of the critical issues that many believe must be addressed 

by the Commission, the text of the NPRM is by no means an indicator of what, if 

anything, the FCC might do or when. 

With regard to the major ILEC special access pricing provisions that are premised 

on their market power in the special access marketplace, ex parte communications 

and filings have been occurring at the FCC over the last few years with no indications that the FCC intends to eliminate the abuses. 

Since FCC actions have largely eliminated unbundled elements (‘‘UNEs’’) as a tool 

for potential local exchange competitors and the lack of any meaningful levels of 

venture capital monies for significant additional competitive exchange carrier 

(‘‘CLEC’’) buildouts, ILEC special access services have become of extreme importance to many CLECs as the only practical tool available for targeting specific potential customers not passed by their facilities. Unfortunately, the excessive ILEC 

rates for these services have many CLECs wondering how cost-effective these services will really be to them. 

CONCLUSION

The most recent industry merger proposals were driven, not by technological innovation or any dramatic changes triggered by the 1996 Telecom Act, but by the repeated failure of regulators to recognize the significance of ILECs’ market power 

and to adequately respond to repeated facts, data, and requests from large end 

users, IXCs, non-RBOC owned wireless carriers, and CLECs. The long-distance companies that have sought these mergers were heavily involved in efforts to resolve 

the problems raised in this testimony. The FCC has largely ignored their concerns 

as well as those expressed by the rest of the non-ILEC industry. Significant harm 

has been done to their industry as well as the CLEC, non-RBOC wireless and large 

end user sectors. I agree with SBC that these problems should not be made part 

of these merger proceedings. These issues are too important to the future competitiveness of the telecom marketplace and this country’s non-ILEC economic engines 

that are still dependent upon critical telecom services subject to ILEC market 

power. The resolution of these issues must be solved now—well before government 

merger decisions are completed.

Mr. CANNON. Thank you, Mr. Moir. We appreciate that. 

Mr. Kellogg? 

28

TESTIMONY OF MICHAEL KELLOGG, PARTNER, KELLOGG, 

HUBER, HANSEN, TODD, EVANS & FIGEL, PLLC, ON BEHALF 

OF THE UNITED STATES TELECOM ASSOCIATION 

Mr. KELLOGG. Thank you, Mr. Chairman. Mr. Conyers was absolutely correct when he said that the telecom marketplace has 

changed radically since the time of the 1996 act. And it’s very helpful to go back and think of where we were in 1996. Wireless was 

still in its infancy. Broadband had not been deployed anywhere. 

VoIP had not even been conceived. The inter-exchange market was 

a cozy oligopoly, protected from competition. And local exchange 

service was protected by local franchises. 

Now, some of the changes that have taken place since 1996 are 

the result of the 1996 act. The local franchise was eliminated; competition was allowed in; the inter-exchange market was opened up 

to competition, and proved to be a fairly artificial market, as customers realized they wanted bundles of minutes that covered both 

local and long distance. 

But the major developments, and the most important ones for 

your consideration, are the ones that happened in the marketplace 

and that were not fully expected. One is that wireless and data 

now significantly outpace voice, wireline voice, in terms of revenues. At the time of the ’96 act, it was 90-10, voice revenues over 

wireless and data; today, it’s 40–60. That is a sea change that has 

tremendous implications for policy. 

And the wireless story generally really has to be understood. 

Today, this year, the tipping point is being reached, and there will 

be more wireless access lines than there are wireline access lines. 

Over 180 million wireless lines are increasing dramatically; 

wirelines are decreasing. Eleven million people have abandoned 

wireline telephone service altogether, in favor of wireless. And another three million are doing that every year. 

There is intense competition in wireless; three to five providers 

in every market. There is improved service; there’s decreased 

prices. As a result, it is not uncommon for people at home to use 

their wireless phones to make long-distance calls, because it’s 

cheaper to do so. 

Now, the second major development is in broadband. The U.S. is 

currently 11th in the world in deployment of broadband. That 

should be shocking. We had the greatest telecom industry in the 

world throughout the 20th century, and excessive regulation dramatically impaired investment in that infrastructure. 

It’s starting to turn around. The FCC is starting to turn things 

around. The new chairman has pledged to open up broadband markets freely to competition. But there’s still a lot of—a lot of room 

to grow there. There’s 90 percent access now to U.S. homes. Cable 

has about 60 percent of that market, compared to DSL. It’s about 

a two-to-one margin. 

The big story is going to be wireless broadband, next-generation 

wireless, which is going to blow this market wide open. 

Billions of dollars has to be invested over the next decade in this 

market to make the U.S. competitive. And it will happen if there 

is a competitive marketplace and a level playing field for all competitors. 

29

1 Industry Analysis & Technology Division, Wireline Competition Bureau, FCC, Telecommunications Industry Revenues 2002 at Table 1 (Mar. 2004); Bureau of Economic Analysis, CurrentDollar and ‘‘Real’’ Gross Domestic Product, http://www.bea.gov/bea/dn/gdplev.xls (GDP for 2002). 

According to an October 2000 news article, for example, the personal computer industry earned 

$180 billion in revenue. D. Bartholomew, E-Business Commentary—PC Industry Stuck in Neutral, IndustryWeek.com (Oct. 1, 2002), http://www.industryweek.com/CurrentArticles/ASP/articles.asp?ArticleId=1330. 2 United States Census Bureau, Annual Capital Expenditures: 2001 at 10–11 (Jan. 2003). 3 Bureau of Economic Analysis, Input-Output Accounts Data: 1999 Annual I-O Table Two Digit

at Table IOTotReqIxCSum.xls, http://www.bea.doc.gov/bea/dn2/i-o.htm#annual. 

The most significant development, probably—the third—is VoIP, 

or Voice Over Internet Protocol. In the next five to 10 years, voice 

is going to be merely an application over broadband service. It’s 

going to completely transform the way that people get their ordinary telephone service. Comcast today is adding a thousand customers per day in New York City alone to VoIP service. 

And these developments are terrific for consumers. They pose 

complicated challenges, though, for the incumbent telephone companies and for the regulators. The incumbents have to innovate, if 

they are going to survive. Their access to capital is highly constrained. 

Consolidation in this industry is inevitable, and very healthy. 

The wireless experience ought to be a lesson. Back at the beginning, the FCC gave multiple licenses and limited how much spectrum could be provided, and growth was sluggish. They eliminated 

those caps. Consolidation occurred, three to five providers per market. Competition is intense, and growing. 

The regulators have an equal challenge, because they have to get 

out of the way. They’ve got to clear away a lot of the underbrush 

based on an old model of how telecommunications was served; a 

model that leads to inefficiencies, subsidies, calls for special interests, not to consumer benefits. 

The market-based approach will work, and it will return the U.S. 

to the top telecom industry in the world. But it has to be allowed 

to work on a competitive framework. Thank you. 

[The prepared statement of Mr. Kellogg follows:]

PREPARED STATEMENT OF MICHAEL KELLOGG

Mr. Chairman and Members of the Committee. My name is Michael Kellogg. I am 

a partner at the law firm of Kellogg, Huber, Hansen, Todd, Evans & Figel, P.L.L.C. 

I am appearing today on behalf of the United States Telecom Association. 

For more than a century, the telecommunications networks and services in this 

country were the envy of the world. We had the fastest, cheapest, most advanced 

technology and an infrastructure that reached into just about every home and business in the nation. No other country could boast comparable levels of service and 

technology. 

As a result, our telecom industry has long been a critical engine for domestic economic growth. The telecom sector standing alone accounts for nearly 3 percent of 

the U.S. GDP—more than any other high-tech industry.1 The existing infrastructure 

reflects literally trillions of dollars in invested capital. At its peak in the year 2000, 

the sector as a whole was investing about $110 billion per year, and thus accounted 

for about 10 percent of all annual capital spending in the United States.2

Through its impact on productivity, moreover, the telecom sector’s capital investment boosts economic output across the board. The Bureau of Economic Analysis estimates that each dollar invested in U.S. telecom infrastructure has resulted in 

nearly three dollars of economic output.3 That multiplier is likely to get larger as 

low-cost broadband service becomes more widely available. 

30

4 Bureau of Labor Statistics, U.S. Dep’t of Labor, Career Guide To Industries: Telecommunications, http://www.bls.gov/oco/cg/cgs020.htm. As of end of year 2000, a total of 5.6 million workers were involved in IT occupations—nearly 5 percent of all U.S. workers. Economics and Statistics Administration, Dep’t of Commerce, Digital Economy 2002 at 42–44 (Feb. 2002). 5 United States Census Bureau, Statistics of U.S. Businesses: Tabulations by Enterprise Size, 

Number of Firms, Number of Establishments, Employment, and Annual Payroll by Employment 

Size of the Enterprise for the United States, All Industries—1998, http://www.census.gov/csd/

susb/usalli98.xls; United States Census Bureau, Statistics of U.S. Businesses: Tabulations by Enterprise Size, Number of Firms, Number of Establishments, Employment, and Annual Payroll by 

Employment Size of the Enterprise for the United States, All Industries—2000, http://

www.census.gov/csd/susb/usalli00.xls. 6See Layoffs Near 2 Million in 2001, San Jose Bus. J. (Jan. 3, 2002) http://

sanjose.bizjournals.com/sanjose/stories/2001/12/31/daily23.html; V. Godinez, Tech Posts Are Out 

There, If You Do a Little Looking, Seattle Times (Feb. 2, 2003); December Job Cuts Top 100K,

CNN/Money.com (Jan. 5, 2005), http://money.cnn.com/2005/01/05/news/economy/jobs—challenger/ . 7See S. Rosenbush, et al., When Will the Telecom Depression End?, Business Week at 66 (Oct. 

7, 2002). 8See Skyline Marketing Group, CapEx Report: 2002 Annual Report, Carrier Data Sheet 1 

(June 2003) (overall investment by wireline and wireless carriers in 2000: $126 billion); Skyline 

Marketing Group, CapEx Report: 3Q04, Carrier Data Sheet 1 (Feb. 2005) (2004 est. based on 

data through 3Q 2004: $51 billion). 9See, e.g., G. Arlen, ed., TR’s Online Census at 11 (Fourth Quarter 2003) (‘‘The United States 

ranks 11th worldwide in broadband use, according to a recent United Nations report.’’). See also

FCC Chairman Michael K. Powell, Remarks at the National Association of Regulatory Commissioners General Assembly (Mar. 10, 2004) (‘‘The greatest nation on earth should not be content 

to be 11th in broadband deployment.’’). 

The telecom sector has had a commensurately large impact on employment. In the 

year 2002, it employed almost 1.2 million workers.4 Employment in the telecom sector as a whole grew more than twice as fast as the national average between 1998 

and 2000, and, by the year 2000, the telecom sector was paying nearly twice the 

average U.S. salary.5

As we all know, that situation has changed dramatically. We are currently in a 

period of ‘‘creative destruction’’ that is transforming the industry. Since 2000, telecommunications service providers and the equipment manufacturers that supply 

them have lost over 700,000 jobs 6 and over $2 trillion in market capitalization,7

while annual investment declined by more than $70 billion 8 and the United States 

fell to 11th in the world in deployment of advanced broadband networks.9

These developments are attributable to two main factors: first, mistakes by the 

FCC in its implementation of the 1996 Telecom Act and, second, the growth of new 

technologies have advanced at a rapid pace to compete with and displace traditional 

telecommunications services. The first factor has to some extent been corrected by 

the Courts and by changes in FCC policies that are now more pro-competitive; but 

there is still progress to be made to eliminate anti-growth policies that have stifled 

investment in recent years. The second factor will make this industry more competitive and vibrant than ever, provided that current de-regulatory policies are continued and expanded. 

Let me begin with the first point. In order to jumpstart competition in local telephone services, Congress decided not simply to eliminate existing franchises and 

open up markets; Congress went further and required incumbents affirmatively to 

assist new entrants through the mechanism of unbundling incumbent facilities. 

Whatever the merits of that idea, the FCC responded with a form of heavily managed competition more suitable to the old Soviet Union than to the new frontier of 

technology and innovation here in the United States. 

Congress wanted unbundling as a temporary crutch upon which new entrants 

could rely while getting on their feet and building their own networks. The FCC 

turned it into a cradle-to-grave welfare system for bogus business models. As a result the FCC’s unbundling rules led to a quick boom as hundreds of new entrants 

flooded the market. But it then led to an even quicker and deeper bust when markets finally realized that the FCC was promoting forms of competition that were untenable. 

The focus of unbundling regulation was on creating hundreds of new competitors 

as quickly as possible. At the height of the competitive local exchange carrier 

(‘‘CLEC’’) industry in 2001, ALTS—the CLEC trade organization—reported that 

there were more than 200 competing providers. Although these carriers invested 

nearly $100 billion, much of this investment proved wasteful: there were as many 

as 50–60 competitive providers in some metropolitan areas. 

Moreover, very little investment was made in residential markets, due to the 

availability of the ultra-cheap resale, known as the UNE platform (‘‘UNE-P’’). While 

the traditional long-distance carriers were at one time viewed as serious competitors 

31

10See J. Halpern, Bernstein Research Call, U.S. Telecom Update: Revising Earnings Forecasts, 

Raising AT&T Target Price, Maintaining Ratings at Exhibit 1 (Dec. 17, 2004). 11See CTIA, CTIA’s Semi-Annual Wireless Industry Survey, http://files.ctia.org/pdf/

CTIAYearend2004Survey.pdf. 12See Industry Analysis & Technology Division, Wireline Competition Bureau, FCC, at Table 

1 (Dec. 2004). 13See Implementation of Section 6002(b) of the Omnibus Budget Reconciliation Act of 1993,

Ninth Report ¶ 9, WT Docket No. 04–111, FCC 04–216 (rel. Sept. 28, 2004) (Ninety-seven percent of the total U.S. population have three or more operators offering mobile telephone service 

in the counties in which they live. Approximately 87 percent of the population have five or more 

operators offering mobile telephone service in the counties in which they live.). 14 B. Bath, Lehman Brothers, Final UNE-P Rules Positive for RBOCs at Figure 2 (Dec. 10, 

2004). 15See id. at 4 & Figure 2. 16 C. Wheelock, In-Stat/MDR, Cutting the Cord: Consumer Profiles and Carrier Strategies for 

Wireless Substitution at 1 (Feb. 2004) (‘‘14.4% of US consumers currently use a wireless phone 

as their primary phone’’). 17See, e.g., Frank Louthan, Vice President, Equity Research, Raymond James, prepared witness testimony before the Subcommittee on Telecommunications and the Internet of the House 

Energy and Commerce Committee, Washington, DC (Feb. 4, 2004) (‘‘We believe the roughly 9.6% 

of the population that are single between the ages of 20 and 34 are the most likely to disconnect 

their wireline phone for a wireless phone (with a significant proportion of this age group having 

already done so). As young consumers between 15 and 19 (another 6.6% of the U.S. population) 

become households, we believe these households could become prime wireless substitution candidates.’’); A. Quinton, et al., Merrill Lynch, Telecom Services: Unraveling Revenues at 5 (Nov. 

20, 2003) (‘‘[W]e believe that demographic trends favor wireless. . . . So, as the US population 

ages, more young people are likely to become wireless subscribers—and either displace the purchase of a wireline service with wireless or cut the cord on an existing line.’’). 

of the local telephone companies, due to the UNE-P, all they ever did was resell 

local service. 

The FCC’s unbundling rules have now been thrown out three times in the Courts; 

once by the Supreme Court and twice by the D.C. Circuit. On all three occasions 

the Courts have chided the FCC for adopting an excessively regulatory model to implement what was supposed to be a deregulatory statute. The FCC’s mismanagement on this issue must bear a fair share of the blame for the high-tech boom and 

bust of the late 1990s and early 2000s. 

But that is all water under the bridge at this point. My desire today is not to 

criticize anyone for past mistakes, but to learn from those mistakes. The much more 

important point is thus the second one: the dramatic changes in technology and 

whether these new technologies will be allowed to flourish in a truly competitive 

marketplace. 

We must recognize that the telecommunications industry is very different today 

than at the time Congress passed the 1996 Act. Indeed, circumstances have changed 

so drastically as to warrant Congress in revisiting and updating the current law. 

In 1996, ordinary wireline voice calls still generated 90 percent of the telecom industry’s total revenues, with wireless and data splitting the rest. Today, the split 

is about 40–60. In another four years it is expected to be 30–70.10 Traditional 

wireline telephone service is under tremendous pressure, as it has been at no other 

time in our history. 

Three areas in particular—wireless, broadband, and the advent of Voice Over 

Internet Protocol (‘‘VOIP’’)—warrant discussion. 

Wireless. The growth of wireless has exceeded even the most optimistic projections. The number of wireless subscribers has grown from about 35 million at the 

time the 1996 Act was enacted to more than 180 million today.11 By contrast, there 

were approximately 180 million wireline access lines as of June 2004, and that number has been in decline since 2001.12

There is intense competition for wireless, with an average of 3–5 providers in virtually every geographic area.13 An increasing share of wireless subscribers, moreover, are abandoning their wireline phones altogether. As of year-end 2004, approximately 11 million primary wireline access lines were displaced by wireless, and that 

number is expected to reach about 22 million by the end of 2008.14 Approximately 

3 million wireless subscribers are now giving up their wireline phones each year.15

At least 14 percent of U.S. consumers now use their wireless phone as their primary 

phone.16 Even larger percentages of young consumers—which will make up the next 

generation of homeowners—are disconnecting their wireline service, which makes it 

likely that the rate of substitution will increase even further in the future.17

Wireless prices have fallen to the point where it is now considerably cheaper for 

many customers to use their wireless phone. Wireless prices have declined—by as 

32

18See, e.g., Implementation of Section 6002(b) of the Omnibus Budget Reconciliation Act of 

1993, Ninth Report, Appendix A at Table 9, WT Docket No. 04–111, FCC 04–216 (rel. Sept. 28, 

2004) (showing average revenue per minute declining every year since 1995 (1998: 21%; 1999: 

23%; 2000: 20%; 2001: 30%; 2002: 9%; 2003: 13%)). 19W. Mossberg, The Mossberg Solution: Turning Your Home Phone into a Cellphone—CallForwarding Devices Let You Use Cellular Service on a Traditional Phone, Wall St. J. at D6 (Dec. 

3, 2003). 20P. Marshall, et al., The Yankee Group, Divergent Approach to Fixed/Mobile Convergence at 

7 & Exhibit 4 (Nov. 2004). 21General Accounting Office, FCC Should Include Call Quality in Its Annual Report on Competition in Mobile Phone Services at 27, Report No. GAO–03–501 (Apr. 2003). 22S. Ellison, IDC, U.S. Wireless Displacement of Wireline Access Lines Forecast and Analysis, 

2003–2007 at Table 1 (Aug. 2003). 23See, e.g., C. Moffett, et al., Bernstein Research, Broadband Update: Broadband Trends Towards Ubiquity at 5 (Apr. 1, 2005) (estimating that DSL is available to approximately 79 percent of homes passed, while cable modem is available to approximately 96 percent of all cable 

subscribers). 24See C. Moffett, et al., Bernstein Research Call, Broadband Update: Broadband Trending Towards 100% of Internet Connections at Exhibits 3 & 13 (Mar. 15, 2005). 25See C. Moffett, et al., Bernstein Research, Broadband Update: Broadband Trends Towards 

Ubiquity at 2 (Apr. 1, 2005). 26 Congressional Budget Office, Does the Residential Broadband Market Need Fixing? at 30 

(Dec. 2003), http://www.cbo.gov/ftpdocs/48xx/doc4868/12–03–Broadband.pdf. 

much as 10 to 20 percent a year in recent years.18 Wireless service packages include 

unlimited long distance calling, which has contributed to wireline traffic substitution and increasing average minutes of use among wireless carriers. As a Wall 

Street Journal article explained, ‘‘[t]hanks to unlimited night and weekend minutes 

. . . cellphone plans are the method of choice when it comes to long-distance calling 

from home.’’ 19 The Yankee Group estimates that wireless subscribers make 60 percent of their long-distance calls on their wireless phones.20

Wireless service quality has also improved dramatically. Consumers now report 

high levels of satisfaction with the quality of their wireless service. For example, 

a GAO survey found that 83 percent of wireless users were satisfied with the call 

quality of their cell phone, while only 9 percent were dissatisfied.21 Analysts similarly report that ‘‘[c]ultural awareness and acceptance of wireless as an acceptable/

preferred communication medium is growing.’’ 22

The wireless story is one of unqualified success: competition is intense, output is 

increasing, and prices are falling. That is exactly what we should all want to see. 

And it has happened—I cannot stress this point enough—because the FCC has 

stayed out of the way. Wireless is a deregulated industry. Competition is 

untrammeled. And the results of that competition are plain for all to hear. 

Broadband. Broadband, unfortunately, is a more complicated story. Although the 

1996 Act promotes deregulation as the approach to spur broadband deployment, the 

FCC ignored this mandate for many years and imposed unbundling here too. The 

FCC’s broadband unbundling policies created disincentives to investment that 

slowed the deployment of broadband. These policies were all the more misguided as 

they were imposed only on local telephone companies, not on cable companies that 

have been the leaders in broadband deployment from the outset by an almost twoto-one margin. As a result, the U.S. fell behind many of its main competitors (such 

as South Korea, Japan, Canada, and parts of Europe) in broadband deployment. 

Only after the FCC eliminated these policies did broadband competition intensify. 

And the FCC’s current Chairman, Kevin Martin, is strongly committed to a deregulatory broadband market. As a result, prices have dropped significantly and penetration has increased at record rates. But there is still a long way to go, both in 

rationalizing FCC policies and in preventing outdated state regulations from blocking or delaying new broadband services, such as IP video. 

It is worth remembering that there was no broadband at all at the time of the 

1996 Act. Today, DSL and cable modem service are available to more than 90 percent of U.S. homes,23 and more than 25 percent of homes subscribe.24 At the end 

of 2004, approximately 47 percent of all residential Internet connections were either 

provided over cable modem or DSL; analysts expect broadband to surpass dial-up 

subscribership this year.25

Broadband prices have dropped rapidly. Consumers are now able to purchase 

broadband services bundled with their cable television and/or phone services. As the 

Congressional Budget Office has observed, ‘‘current providers face the prospect of 

new broadband market entrants and other competitive pressures from converging 

telecommunications markets.’’ 26 These new broadband market entrants include 

33

27See Availability of Advanced Telecommunications Capability in the United States, Fourth 

Report to Congress, 19 FCC Rcd 20540, 20547 (2004). 28See Industry Analysis & Technology Division, Wireline Competition Bureau, FCC, HighSpeed Services for Internet Access: Status as of June 30, 2004 at Tables 3 & 4 (Dec. 2004). 29See C. Moffett, et al., Bernstein Research Call, Broadband Update: Broadband Trending Towards 100% of Internet Connections at Exhibit 13 (Mar. 15, 2005). 30See J. Halpern, et al., Bernstein Research, Quarterly VoIP Monitor: How High Is Up for 

Cable VoIP? at 4 & Exhibit 2 (Apr. 1, 2005). 31See also P. Grant, Time Warner’s Phone Service Shows Cable’s Growing Clout, Wall St. J. 

at B1 (Feb. 23, 2005). 32See R. Black, Blaylock & Partners, 4Q04 Wireline Preview—The Telecom Landscape Is 

Evolving, Tread Carefully at 2 (Jan. 20, 2005). 33See Thomson StreetEvents, CMCSA—Q4 2004 Comcast Corporation Earnings Conference 

Call, Final Transcript at 7 (Feb. 3, 2005) (Comcast COO & President Steve Burke: ‘‘[W]hen you 

look at what Cox, and more recently Cablevision, and others have done in this business, we 

think the 20 percent penetration is very reasonable within a five-year time period.’’). 34 Vonage Press Release, Vonage Becomes First Broadband Telephony Provider To Activate 

Over 500,000 Lines (Mar. 7, 2005). 35See AOL Press Release, America Online Introduces AOL(r) Internet Phone Service (Apr. 7, 

2005). 

companies providing Wi-Fi, WiMax, satellite technologies, fiber-to-the-home, and 

broadband over power lines.27

The market leader is cable modem service, which accounts for more than 61 percent of residential and small business customers receiving download speeds of 200 

kbps or more in at least one direction, and 83 percent of customers that receive 

more than 200 kbps in both directions.28 One analyst estimates that at the end of 

2004, there were 21 million residential cable modem subscribers, but only 11 million 

residential DSL subscribers.29 Simply put, local telephone companies are still secondary players for mass-market customers of broadband Internet access. 

But with deregulation, that may change. In order to remain serious competitors 

in the 21st century, SBC, Verizon, BellSouth and other incumbent telephone companies have embarked on ambitious plans to spend billions of dollars to deploy fiber 

networks that are capable of providing video as well as a host of other new services. 

This is an unalloyed boon for consumers and for the U.S. economy generally, which 

depends so heavily on its critical information infrastructure. 

VOIP. In just the last two years, VoIP has gone from barely a blip on the radar 

screen, to arguably the most significant competitive development in decades. All of 

the major cable operators have begun offering new voice-over-IP (‘‘VoIP’’) services 

over their networks, and by the end of this year will be offering service to more than 

40 percent of U.S. households; 30 major cable operators like Time Warner Cable and 

Cablevision already make service available in all of their markets, while Comcast 

expects to reach that milestone by the end of next year. 

Time Warner Cable is now adding 11,000 VoIP households per week.31 Cablevision 

has been adding another 1,000 cable VoIP households per day in the New York metropolitan area.32 Comcast expects to achieve 20 percent penetration within five 

years.33 In addition, there are literally dozens of independent VoIP providers, such 

as Vonage, which serves more than 500,000 lines, and has been adding more than 

15,000 lines per week.34 Earlier this month, AOL launched its own VoIP service.35

These new VoIP providers have deployed voice services over broadband networks 

and IP backbones that offer many advanced features and functionalities—such as 

online call management, personal conferencing, and locate-me services. 

All three of these developments—wireless, broadband, and VOIP—are unqualified 

goods for consumers and the U.S. economy. But they pose more complicated challenges for the incumbent wireline telephone companies. These companies are facing 

unprecedented competitive pressures. They must rapidly innovate to survive and 

they must do so at the time when market access to capital is highly constrained. 

Technological transformations cannot be sustained and expanded without extraordinary further investments of capital. But the capital markets—burned in the tech 

boom—are acutely aware of the business risks inherent in traditional telecommunications firms. Constrained access to capital and increasing costs are the results. So, 

too, is a measure of industry consolidation. 

It is important to remember that when wireless first began in the early 1980s, 

the FCC tried a policy of promoting hundreds of small competitors, and awarded 

licenses by lottery to companies that had no ability (or even intention) of providing 

competition. The FCC then put a cap on how much spectrum each carrier could own. 

More recently, the FCC eliminated the spectrum cap and has permitted industry 

consolidation, while maintaining deregulatory policies. Wireless competition has 

thrived as a result. 

34

As the experience in wireless and many other non-telecom industries shows, capital intensive industries like telecom, typically are characterized by a handful of 

major competitors. It is therefore fruitless for regulatory policy to focus on promoting an industry structure with a certain number of like competitors. As the past 

eight years show, the market is much better than regulators at determining the best 

industry structure. 

The focus should instead be on ensuring that intermodal competitors have opportunities to flourish, as it is these types of competitors that are most likely to provide 

sustainable competition going forward. This is what happened in transportation, 

where trucks and planes emerged to compete with railroads. 

The 1984 break-up of AT&T created an artificial regulatory divide between local 

and long distance service. That divide is completely obsolete today, as the wireless 

experience shows. Consumers buy buckets of minutes that they can use equally to 

call across the street or access the nation. AT&T and MCI cannot survive as independent companies. The hundreds of CLECs started in the wake of the 1996 Act 

cannot survive alone either, and they are joining forces and consolidating into much 

stronger, more vibrant competitors. 

These are trends to be embraced, not resisted. Unless we learn from the past, we 

are doomed to repeat it. The time has come for regulators to get out of the way and 

let telecom markets once again become the engine of growth in our economy and 

the United States be the world leader in telecommunications throughout the 21st 

Century.

Mr. CANNON. Thank you, Mr. Kellogg. 

Mr. Verveer? 

TESTIMONY OF PHILIP L. VERVEER, PARTNER,

WILLKIE FARR & GALLAGHER, LLP 

Mr. VERVEER. Good afternoon, Mr. Chairman, and Mr. Conyers, 

Members of the Committee. I appreciate your invitation to testify 

today. 

The availability of the antitrust laws, and especially the Sherman Act, to protect the competitive process in telecommunications 

is as important today as it ever has been. Recent judicial decisions 

have tended to diminish our ability to rely upon the Sherman Act. 

This is an issue which should be a priority in connection with any 

legislation or oversight involving the communications industries. 

The broad social concern that this hearing raises is whether the 

current changes, marked by disruptive technology and reflected in 

convergence and consolidation, will turn out to be positive. While 

there are reasons for optimism, the reality is we do not, and we 

cannot, know if the telecommunications sector will retain its progressive quality. And that counsels caution. 

Now, in my written statement I’ve tried to elaborate somewhat 

on that. I’d like to devote the rest of my oral statement to my concerns in particular about section 2 of the Sherman Act. 

The monopolization provision is the economy’s ultimate protection from the exercise of market power. It is seldom used successfully; and that is as it should be. But its status as a legal device 

of last resort should not be compromised. 

Given the inherent uncertainties in the telecommunications marketplace, it is particularly important that the residual authority 

represented by section 2 remain unimpaired. It is unfortunately the 

case that it has been impaired recently by Trinko and other decisions in the Goldwasser line of cases. Trinko seems to me to have 

recklessly weakened our ability to rely upon the Sherman Act to 

correct instances of monopolization as they arise. 

This is not accidental. The Trinko opinion is remarkably tendentious and unremittingly hostile to the application of the antitrust 

35

1My law firm represents companies and associations directly interested in the development 

and administration of public policies affecting the communications industry. In particular, I 

want the Committee to be aware of my representation of Sprint Corporation in connection with 

its proposed merger with Nextel Communications and of Telmex-related interests in connection 

with their proposed sale of MCI Corporation shares to Verizon Corporation. However, my appearance today is a result of the invitation of the Committee to express my personal views on 

the state of competition in the telecommunications business. My testimony is not intended to 

represent any of my firm’s clients and it does not necessarily reflect their views. 

laws to regulated industries. There are three features of the opinion that I think are especially troubling. 

The first is the extended dicta about the relative capabilities of 

regulatory agencies and antitrust courts. Trinko gets this exactly 

backward. The decision greatly overvalues the ability of regulatory 

agencies to adjudicate monopolization claims, and undervalues that 

of antitrust prosecutors and courts. 

Second, and more significant, is the way in which it approaches 

section 2. Similar to others in the Goldwasser line of cases, it invites an examination of component parts, rather than of the whole. 

This approach looks at a course of conduct one element at a time, 

and dismisses each as lawful or as individually immunized; and 

then concludes, based on these intermediate steps, that there is no 

violation. Prior to Trinko, the Supreme Court had found this methodology to be impermissible. The post-Trinko segmentation approach severely undermines section 2. 

Third, as with other cases in the Goldwasser line, Trinko tends 

to conjure idealized or imaginary commercial environments largely 

free of positive law—or at least, regulatory law—strictures. It seeks 

to measure a firm’s conduct not against the law as it exists, but 

against some conception of the law as it once was, or should be. 

In Trinko, this takes the form of disallowing considerations of the 

alleged device of denying, delaying, and degrading the provision of 

local loops; because the defendant would not have provided them, 

but for the statutory obligation to do so. 

Section 2 should not be predicated on this type of fictive environment, reduced to a game of counter-factuals. Whether a course of 

conduct constitutes monopolization, or attempted monopolization, 

should be determined against the commercial realities as they actually exist. 

Those realities are influenced in many ways by statutory law. 

The proposition that statutory provisions, and the legal obligations 

they create, should be ignored in determining if monopolization has 

occurred will deprive our telecommunications industries, and other 

regulated industries as well, of protection against monopolization. 

Thank you. 

[The prepared statement of Mr. Verveer follows:]

PREPARED STATEMENT OF PHILIP L. VERVEER

Good afternoon, Mr. Chairman and members of the Committee. I am Philip 

Verveer. I am a partner in Willkie Farr & Gallagher LLP.1

I appreciate your invitation to testify on telecommunications industry competition 

and consolidation. I have spent more than thirty years, almost all of my professional 

life, considering these matters, as a Justice Department attorney in the AT&T antitrust case, as a bureau chief at the FCC, and as a private attorney. 

In the nine years since the passage of the Telecom Act, there has been a telecom 

boom and bust, significant consolidation among the Baby Bells, disappearance of numerous competitive local exchange carriers and interexchange carriers through liquidation and merger, financial accounting scandals, and now the imminent absorpVerDate 0ct 09 2002 13:19 Jul 11, 2005 Jkt 000000 PO 00000 Frm 00039 Fmt 6633 Sfmt 6621 G:\WORK\FULL\042005\20708.000 HJUD1 PsN: 20708
36

2 It is instructive that the government’s anticipation of this intermodal competition was accompanied by affirmative steps to protect the cable industry and ultimately the public from exercises of market power by the local telephone companies. These affirmative steps took the form 

of FCC pole attachment regulations and cable-telco crossownership prohibitions that were, in 

time, incorporated into the Communications Act by Congress. In wireless, they took the form 

tion of AT&T and MCI. And, in the nine years since the passage of the Telecom 

Act, there has been an enormous expansion of wireless service, even greater expansion of the Internet, great increases in residential and small business broadband 

service through cable modem and DSL technologies, lower prices for many telecommunications services, and increasing deployment of digital technology. 

So recent history is very mixed. Despite appalling losses of employment and investment with all of their attendant dislocations, there is genuine reason to regard 

the performance of the telecommunications sector as good and equally genuine reason to protect the process that produced the performance. And that will be challenging because the telecom marketplace nine years after the Telecom Act almost 

certainly is in the early stage of a fundamental transformation. 

The last time this happened was two-to-three decades ago, when the preference 

for competition over regulated monopoly established itself as the prevailing paradigm in both an intellectual and an operational sense. This preference was reflected 

in the realm of antitrust law in the divestiture of the Bell System. It was reflected 

in the realm of regulatory law in policies favoring open entry and disfavoring restrictions on output. The result of this paradigm shift was what its proponents had 

hoped and predicted. We have had decades of remarkable progressiveness in our 

communications industries. It is observable in the many products that did not exist 

in 1975 and in the vastly lower prices for products that did exist. This was not, of 

course, a matter of single causality. More than anything else, it was a function of 

technological possibilities being deployed quickly and imaginatively under the pressure of growing competition. One legacy, then, is the great improvements in product 

variety, quality, and price that we enjoy today. The other is, or at least should be, 

very strong confidence that policies favoring the dynamic aspects of competition are 

to be preferred. 

In sum, the fundamental transformation of three decades ago turned out to be almost entirely positive. The issue raised by this hearing is whether the current 

changes will be as well. 

The telecom marketplace nine years after the Telecom Act, from the perspective 

of consumers, offers great promise and some risk. Just as three decades ago, the 

promise is a function of extraordinarily favorable developments in technology combined with competitive imperatives to reduce the developments to practice and bring 

them to the marketplace quickly. The risk resides in the equally extraordinary institutional upheaval affecting the production of telecommunications services. 

My testimony will address the risk side of the equation. It is important, however, 

not to lose sight of the enormous benefits that have been produced by the telecommunications sector in the era of divestiture and deregulation and of the high 

probability that innovation will continue, at an accelerating pace, for the foreseeable 

future. The policy issues that we confront involve protecting the process that has 

produced these gains and insuring that they are available across all of our society. 

In that sense, they are good problems to have. 

One way—I think the best way—to consider the risks to our telecommunications 

future is to consider the state of the institutions on which we depend. What has 

gotten us to the present desirable state is a workably competitive industry operating 

in a legal framework that takes seriously the threat of undue market power and 

seeks to prevent its creation or deter its exercise. The institutional arrangements 

that embody this experience are today under great pressure. 

To begin with the business institutions: the most significant aspects of today’s 

telecommunications marketplace are consolidation and convergence. Both mergers 

and liquidations have reduced the number of businesses operating across many 

parts of the telecommunications sector. The most obvious examples involve companies that in traditional terms principally offered local exchange or interexchange 

services. In parts of telecommunications where this has not yet happened as dramatically—equipment manufacturing and distribution most prominently—it will. All 

else equal, of course, consolidation threatens to undermine the workably competitive 

environment that has produced the benefits that our society enjoys today. But the 

phenomenology of convergence of previously distinct modes of communication means 

that all else is not equal. Convergence has been anticipated for the better part of 

forty years. It is occurring dramatically in the case of wireless service displacing 

wireline service and in the case of local exchange telephone companies and cable 

television companies competing in what had been the other’s core business.2

37

of repeated FCC efforts to force wireline interconnection rates to be reciprocal and reasonable. 

These measures had costs, as all regulations do, and no doubt produced occasional unintended 

results, but there is little doubt that today we are better off as a society for the existence of 

the requirements. 3 Arguments over economic regulation are not over whether there should be regulation, but 

rather over the type of regulation. The dichotomy is between regulation based upon public utility concepts and regulation based upon the law of property, contract, and tort. 

The broader point for public policy is that convergence makes it difficult to assess 

the competitive effects of consolidation. Both the definition of product market and 

the identification of suppliers of the product become a great deal more difficult. 

One other factor makes competitive assessment more difficult yet. That factor is 

disruptive technology. Technology, especially digital technology, is drastically affecting the way in which telecommunications services are produced just as it is enabling 

the creation of entirely new services. To take the obvious example, at present it appears that broadband-enabled services will be the preferred objects of consumption 

in our telecom future. From today’s perspective, it also appears that for most consumers and small businesses the broadband transmission will be supplied by one 

of two providers, either the local telephone company or the local cable company. 

However, there are two other technological possibilities, wireless and broadband 

over powerline, that could become important in the supply of broadband transmission services to consumers and small businesses. Overall, it is virtually impossible to predict how quickly and how extensively broadband transmission service 

will spread across our country, how many providers will be available in any given 

geographic area, and what the comparative qualities of broadband produced with 

different technologies will be. There are reasons to be optimistic that broadband will 

be available in a workably competitive environment and there are reasons to be cautious about our legal and regulatory arrangements in the event that it is not. 

Changes of this kind have very large consequences for our assessment of whether 

businesses enjoying high market shares are in fact as entrenched as the shares 

might make them appear. By way of example, should we consider the local telephone industry’s share of narrowband circuits in the face of possible broadband substitution any differently than we should have considered paging companies’ shares 

in the face of cellular substitution or international telex companies’ shares in the 

face of facsimile substitution? I happen to think that we should, but the possibility 

of widespread substitution obviously influences any estimate of effective market 

power. 

Given where I believe we find ourselves, in the early stages of a fundamental 

change in telecommunications industry structure brought about by disruptive technology resulting in convergence and consolidation, what should we do? The best answer I can provide is, proceed cautiously. 

With respect to our legal and regulatory institutions—the Communications Act 

and the antitrust laws: the recent tendency on the part of the FCC , the Department 

of Justice, and the courts is to play down the possibility of socially harmful single 

firm conduct and to play up the possibility that government constraints on single 

firm conduct will damage consumers and the broader public interest. In some respects, this merely reflects the present state of an endless and ultimately 

irresolvable debate that is grounded just as firmly in political philosophy as in economics and empirical evidence.3 Assuming agreed desiderata, is government intervention in the marketplace likely to make matters better or worse? Is it good policy 

to risk interfering with productive efficiencies for the sake of enabling or protecting 

additional producers? Is it good policy to risk interfering with productive efficiencies 

for the sake of distributional considerations? Is it necessary to secure the desired 

level of investment in new technology to permit investors to appropriate the full 

value of their investments, or should some of the surplus be spread to consumers 

and to others in the productive realm? 

When we look at the legal and regulatory institutions affecting telecommunications, my thesis is that the present legal tendency in the present industrial context is dangerous. It is dangerous because the industrial setting is changing fundamentally, but the legal arrangements are not reacting to this development in an 

appropriate way, that is, with caution. 

From the perspective of regulatory law, what has emerged from both FCC and numerous appellate decisions related to the 1996 Telecommunications Act is a policy 

that strongly favors incentives to invest and equally strongly avoids intrusions into 

corporate decisions. In a significant sense, the recent Commission and court decisions can be seen as a reaction against the activist interpretations that constituted 

the initial FCC effort to implement the 1996 amendments shortly after their passage. The controversy surrounding Unbundled Network Elements constitutes a tellVerDate 0ct 09 2002 13:19 Jul 11, 2005 Jkt 000000 PO 00000 Frm 00041 Fmt 6633 Sfmt 6621 G:\WORK\FULL\042005\20708.000 HJUD1 PsN: 20708
38

4 Verizon Communications Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398 (2004). 

5Goldwasser v. Ameritech Corp., 222 F.3d 390 (7th Cir. 2000). 

6 47 Fed. Reg. 7170 (Feb. 17, 1982). 

ing example. Simultaneously, there has been an inability thus far to amend adequately a whole series of important traditional arrangements that have come under 

pressure as a result of changes in the telecommunications business. These include 

universal service and intercarrier compensation, major matters that have significant 

distributional implications. While these issues have only an indirect effect on competition, they contribute to instability in a sector already significantly destabilized 

by disruptive technology. 

From the perspective antitrust law, the observable and incipient changes in the 

telecommunications industry make Section 7 of the Clayton hard to apply and Section 2 of the Sherman Act more important than ever. 

As noted, at the local level the relevant product markets are changing and important competitors are attempting to enter. There is a reasonable basis to debate 

whether incumbent local exchange companies are more entrenched than ever given 

the failure of many competitive local exchange carriers and the diminished state of 

UNE competition, or more vulnerable than ever due to substitution of wireless service and of broadband facilities and internet protocol for narrowband facilities and 

circuit switching. Whether the substitution will occur on a large scale and over what 

time frame are uncertainties that inevitably affect the predictive judgments required by Section 7 in ILEC transactions. To say it more simply, confident predictions are much more difficult when so many of the salient facts are changing. 

Given the manner in which the Clayton Act distributes burdens of proof—mergers 

are permissible unless proven harmful—the uncertainties have the effect of permitting mergers. In these circumstances, most telecom mergers would be cleared even 

if Justice Department policy makers were not philosophically disposed to avoid government intrusion, which they plainly are. 

If the vast changes overtaking the telecommunications industry tend to narrow 

the scope of Section 7, they make Section 2 more important. The monopolization 

provision is the economy’s ultimate protection from the exercise of market power. 

It seldom is used successfully, but I have always believed that its existence serves 

to make firms with strong market positions circumspect in the way they use their 

economic power. This is especially important in telecommunications, where relatively high market shares are commonly found. Given the inherent uncertainties 

in the telecommunications marketplace, it is particularly important that the residual authority represented by Section 2 remain unimpaired. It is unfortunately the 

case that it has been impaired recently by Trinko 4 and other decisions in the 

Goldwasser line of cases.5

Trinko seems to me to have materially weakened our ability to rely upon the 

Sherman Act to correct instances of monopolization as they arise and thus to have 

weakened its deterrent effect. This is not accidental. The Trinko opinion is remarkably tendentious and unremittingly hostile to the application of the antitrust laws 

to regulated industries. Three features of the opinion are especially troubling. 

The first is extended dicta about the relative capabilities of regulatory agencies 

and antitrust courts. Trinko gets this exactly backward. The decision greatly overvalues the ability of regulatory agencies to adjudicate competitive disputes and 

undervalues that of antitrust prosecutors and courts. It does not denigrate the social 

value of the FCC and of state public service commissions to note that adjudication 

of competitive disputes is not what they do best. What they do best reflects the essentially legislative nature of regulatory agencies. They are designed and staffed to 

formulate and articulate policies that apply prospectively. In the process, Commissioners bring to bear their preconceptions about what is best for society and of necessity often compromise among themselves. These tendencies—to draw upon experience and belief rather than solely on a bounded record and to reach pragmatic 

compromise—are the opposite of adjudication. Although Trinko loads up the scale 

with the ‘‘sometimes considerable disadvantages of antitrust’’ and the ‘‘cost of false 

positives,’’ the conclusion that competition in telecommunications in its most fundamental aspects will be protected with diminished possibility of Sherman Act prosecutions seems to me utterly wrong. 

It also ignores history. As the Competitive Impact Statement in United States v. 

Western Electric indicated, regulatory failure was one of the bases for the Justice 

Department’s prosecution that led to the Bell System divestiture.6 The regulatory 

failure did not reflect a lack of effort on the FCC’s part. The FCC had compiled a 

remarkable record in opening several telecom markets to competition. It also made 

significant efforts to stop Bell Company violations of its competition-related orders. 

History makes it clear that the FCC could not do so quickly enough, nor in a way 

39

7 Covad Communications Co. v. Bell Atlantic Corp., 398 F.3d 666 (D.C. Cir. 2005), decided on 

the basis of the Trinko precedent, provides an example of the diminution of Section 2 through 

the device of segmenting an alleged illegal course of conduct. 8 ‘‘Plaintiffs should be given the full benefit of their proof without tightly compartmentalizing 

the various factual components and wiping the slate clean after scrutiny of each.’’ Continental 

Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 699 (1962). This citation often invokes 

rejoinders that Continental Ore is not authoritative on this point. I note that the Antitrust Division relied upon Continental Ore for precisely this point in its Section 2 prosecution of Microsoft. 

that threatened sanctions for future violations that were sufficiently severe to act 

as a deterrent. 

Trinko’s objection that telecom-related antitrust prosecutions bring courts into 

contact with the ‘‘highly technical’’ does not distinguish them from many other controversies that we ask the courts to consider. The availability of primary jurisdiction 

referrals offers amelioration of this concern. The related objection that telecom-related judicial decrees could prove difficult to administer is correct, but, again, this 

does not distinguish them. The goal of a workably competitive telecommunications 

sector is worth the price of imperfect remedies, even recognizing the risk that they 

could inadvertently deter some socially beneficial conduct. 

The second and more significant concern stemming from the Trinko decision is the 

way in which it approaches Section 2. Similar to others in the Goldwasser line of 

cases, it invites an examination of component parts rather than of the whole. This 

approach looks at a course of conduct one element at a time and dismisses each as 

lawful or as individually immunized and then concludes, based on these intermediate steps, that there is no violation.7 Prior to Trinko, the Supreme Court had 

found this methodology to be impermissible.8 In other words, monopolization is an 

independent violation of the antitrust laws. A finding of liability does not depend 

on finding that a component activity in a course of conduct separately and individually violates the antitrust laws. If it is to be effective, Section 2 must require that 

courts look at the alleged conduct whole. It should not matter if each of the individual components is lawful, benign, or immune when viewed in isolation if the end 

result, taken as a whole, adds up to an anticompetitive effort to maintain a monopoly. 

Looking at a course of conduct one element at a time highlights a third, particularly troubling feature of the Trinko opinion. As with other cases in the Goldwasser 

line, it tends to conjure idealized or imaginary commercial environments largely free 

of positive law, or at least regulatory law, strictures. It seeks to measure a firm’s 

conduct not against the law as it exists, but against some conception of the law as 

it once was or should be. Section 2 should not be predicated on this type of fictive 

environment, reduced to a game of counterfactuals. It was designed to, and to be 

effective in protecting competition in telecommunications it must, take the world as 

it finds it, including the world of positive law-required or -influenced activity. In 

other words, whether a course of conduct constitutes monopolization or attempted 

monopolization should be determined against the commercial realities as they actually exist. Those realities are influenced in many ways by positive, statutory law. 

The proposition that positive law and the legal obligations it creates should be ignored in determining if monopolization has occurred is exceedingly strange, but if 

and as it is adopted and extended it will deprive our telecommunications industries, 

and other regulated industries as well, of protection against monopolization. 

To conclude, the availability of the antitrust laws, and especially of the Sherman 

Act, to protect the competitive process in telecommunications is as important today 

as it ever has been. Recent judicial decisions have tended to diminish our ability 

to rely upon the Sherman Act. This is an issue that should be a priority in connection with any legislation or oversight involving the communications industries.

Mr. CANNON. Thank you, Mr. Verveer. And may I just lead to the 

question to you. You were the lead antitrust counsel at the Department of Justice at the time of the original filing for divestiture of 

‘‘Ma Bell.’’ If the Goldwasser and Trinko decisions had been in effect as of 1974, is there a significant danger that the Federal courts 

would not have been able to order the breakup of AT&T, and may 

in fact have had to grant a motion to dismiss the department’s 

case? 

Mr. VERVEER. Yes, sir. I think if Trinko had been the controlling 

law at the time, it is doubtful that the case could have been successfully prosecuted. A large part of that case was predicated on 

40

the refusal of the Bell companies to interconnect with other carriers and to permit interconnection of terminal equipment. Those 

obligations were found in the Communications Act, and had been 

ordered by the FCC to take place; and so, as a result, appear to 

me to be almost exactly conceptually the kinds of things that 

Trinko has now apparently ruled out of bounds. 

Mr. CANNON. Thank you, Mr. Verveer. 

Mr. Kellogg, in your testimony, you seemed to agree with Mr. 

Conyers that the telecommunications industry has radically 

changed since 1996, for the better. But you seem to think it is, in 

spite of the act, rather than because of the act—rather than because the act opened up competition. 

Mr. KELLOGG. That’s not completely correct, Mr. Chairman. In 

fact, I think the act did two terrific things: which is eliminating 

local franchises, and opening telecom markets to competition and 

opening up long-distance markets to competition; and in preempting State attempts to block competition. 

What I am mainly concerned with was the FCC’s implementation 

of that act, which turned what was intended to be a temporary 

crutch for new entrants to allow them access to incumbent networks until they could build out their own facilities—and they took 

those basic, limited principles established by Congress and turned 

them into essentially a cradle-to-grave welfare program for new entrants. That encouraged a huge amount of inappropriate entry by 

CLECs, as Mr. Conyers pointed out. There were 200 CLECs at one 

point. That was simply not sustainable competition. 

Mr. CANNON. Well, did you expect CLECs to create facilities that 

would have wires all the way to every house? 

Mr. KELLOGG. I expected CLECs to do what they have done; 

which is to build ring networks in major municipalities, where 

most of the large customers are located, where most of the revenues are to be found; and then to build out from those ring networks to individual customers, which they all advertised that they 

will do. 

Mr. CANNON. But that would have been largely individual business customers; is that correct, in your mind? 

Mr. KELLOGG. In terms of the large inner-city networks, that’s 

true. That’s large- and medium-sized business customers. 

Mr. CANNON. So you expected that the CLECs would never have 

the opportunity to use the last-mile wire to offer services that the 

RBOCS had known about, had on the shelves, but refused to offer 

their customers all that time? 

Mr. KELLOGG. No, that’s incorrect, Mr. Chairman. Three things: 

One, cable companies already had a last-mile wire into the house, 

which they’re using for VoIP. Second, wireless, of course, goes directly into the house——

Mr. CANNON. Right, but I think you testified that those things 

were not really in the mind of people at the time. But DSL was 

on the shelf of the RBOCs, and hadn’t been promoted at all. And 

CLECs—I don’t usually think of the cable companies as CLECs. 

Those are companies that came in to offer services on a system 

that had been built in a subsidized environment by a regulated industry. 

41

And so my thought of the 1996 act—it was passed before I got 

here—but my understanding was that it was to open up those— that investment that society made through these regulated companies, so that we would have more services available. 

Mr. KELLOGG. I don’t think anyone disputes that the last-mile 

copper loop has been appropriately opened up by Congress and 

made available to competitors. It’s still available today. What’s not 

available is what’s called the ‘‘UNI-P,’’ which was a sort of contrivance of the FCC as a substitute for resale at extremely low, subsidized rates. 

Mr. CANNON. Let me just ask, if I may, Mr. Kellogg, do you and 

USTA agree with the Court’s reasoning and decisions in 

Goldwasser and Trinko? 

Mr. KELLOGG. Absolutely, Your Honor——

Mr. CANNON. Thank you——

Mr. KELLOGG. Oh, do you want me to explain, or just to——

Mr. CANNON. No, certainly go ahead. 

Mr. KELLOGG. One thing I would point out, it was a unanimous 

decision. Two, it followed the letter of this Congress’ law, in preserving antitrust law and saying that it was not changed by the 

Telecom Act. 

Mr. CANNON. Because my time is up, and I want to be a good 

example for the rest of the panel, let me just ask one other question. 

Mr. KELLOGG. Fine. 

Mr. CANNON. Why is Qwest the only RBOC to offer naked DSL 

in America today? 

Mr. KELLOGG. Well, it’s actually not true. Verizon has begun to 

offer naked DSL. 

Mr. CANNON. Where? 

Mr. KELLOGG. The service was developed as a complement to 

voice. It’s extremely expensive to provide it on its own. Different 

businesses are going to make different business decisions about 

whether it makes sense to do that. 

Mr. CANNON. Thank you. My time has expired. Mr. Conyers? 

Mr. CONYERS. Thank you, Mr. Chairman. 

Gentlemen, a couple of things need to be on the record. Are most 

of you in agreement with the notion that inevitably there will probably only be two, maybe three, telecoms that can serve global customers; and that might be used as an argument for—that one of 

these global operations may be United States based? 

And the other consideration that I have is, how can we assure, 

in today’s fast-changing marketplace, that innovation and price reduction are not driven out of the marketplace when we go into 

these mergers? Can they provide more competition, and we do have 

these goals happen as a result; or are the antithetical? Let’s quickly chime in, before my 5 minutes run out. 

Mr. GRIVNER. Okay. Let me start, then. First of all, do I think 

there can be more than two or three global telecommunication companies? 

Mr. CONYERS. Yes. 

Mr. GRIVNER. I do. Because I think telecommunications, as we 

know it today, is certainly changing. And I think if we fixate ourselves just on the wire-based business, that’s the wrong fixation. 

42

Because I do think broadband wireless will be something that will 

happen, probably in three to 5 years. 

I also think large companies, very large companies, can be their 

own telecommunication company, because VoIP and technologies 

like VoIP really unmask a lot of the capabilities for large companies to be their own telecommunication providers. 

Mr. CONYERS. Mr. Moir? 

Mr. MOIR. On the global front, no, I think we’ll have more than 

that. At first, I thought your question was whether we’d have two 

global providers, U.S.-based. 

Mr. CONYERS. No. 

Mr. MOIR. I think that’s a given, and I think we’ll clearly have 

more, if you look at the number of global providers; although I 

think a low single-digit still. 

I think the problem that we’re having is not in the pricing area; 

isn’t so much driven by the mergers, but driven by the failure of 

the FCC to provide the safeguards that we thought they were going 

to provide after the ’96 act. So the abuses are already occurring; 

which is negatively impacting customers, competitive suppliers, 

and even the wireless industry. 

Mr. CONYERS. And some of these decisions aren’t helping anything, either; are they? 

Mr. MOIR. Absolutely not. 

Mr. CONYERS. Mr. Kellogg? 

Mr. KELLOGG. I’d like to direct to the second question about postmerger competition. Mr. Grivner cited two examples, Cleveland 

and Milwaukee. I would like to point out to the Members that in 

Cleveland there are today 11 operational CLEC networks. Eleven. 

There’ll be one eliminated after the mergers, because SBC will 

combine with AT&T. There’ll still be ten. They’ll be strong competitors. 

In Milwaukee, there are six operation networks. There will be 

five after the merger. Today, there are three to five wireless providers, and that is considered a paradigm of competition. 

Mr. CONYERS. Uh-huh. 

Mr. VERVEER. Well, Mr. Conyers, the only way we’re going to 

continue to get good performance out of our industries is if we 

maintain a competitive environment. That seems to me to be the 

critical point. 

As to the number of firms that may be available to serve the socalled enterprise market, or the big business market, I guess I’m 

hopeful that we will have certainly at least three, and probably a 

good many more; and particularly if one looks at it on a worldwide 

basis. Thank you. 

Mr. CONYERS. Uh-huh. Mr. Moir? 

Mr. MOIR. One add-on——

Mr. CONYERS. And then Mr. Grivner. 

Mr. MOIR. —vis-a`-vis what troubles me is the discussion of the 

number of suppliers in a market. 

Mr. CONYERS. Right. 

Mr. MOIR. The only thing I care about as a user: How many people can supply my points of presence? So even though there may 

be 11, I don’t care if there are a hundred carriers in the market. 

If for 95 percent of my points of presence from my high-capacity 

43

pipes I only have one company to choose, Mr. Kellogg’s numbers 

are totally irrelevant. 

Mr. CONYERS. Okay. Last comment. 

Mr. GRIVNER. I just want to add that Mr. Kellogg’s remark is relatively meaningless. It’s silly, in the sense of it doesn’t have ubiquity that, certainly, an SBC and AT&T have. 

Mr. CONYERS. Poor Mr. Kellogg. 

[Laughter.] 

Mr. CONYERS. No commentary. I’m out of time. But I thank you 

all for your discussion. 

Mr. CANNON. Thank you, Mr. Conyers. 

Mr. Smith? 

Mr. SMITH OF TEXAS. Thank you, Mr. Chairman. 

Mr. CANNON. The gentleman is recognized for 5 minutes. 

Mr. SMITH OF TEXAS. I’m going to give Mr. Kellogg a chance to 

follow up on that. First of all, Mr. Kellogg, I want to read from the 

end of your prepared written testimony. You say, ‘‘AT&T and MCI 

cannot survive as independent companies. The hundreds of CLECs 

started in the wake of the 1996 act cannot survive alone, either; 

and they are joining forces and consolidating into much stronger, 

more vibrant competitors. These are trends to be embraced, not resisted.’’

And this is to follow up on a couple of the earlier questions you 

got regarding consolidation. but we’ve talked about numbers, we’ve 

talked about competition. We haven’t talked about whether or not 

the consolidation actually helps the industry. We haven’t talked 

about whether the consolidation will help America’s competitiveness or not. Do you have answers to those questions? 

Mr. KELLOGG. I hope so. On the issue of helping competition, I 

would point out that XO, for example, is an amalgam of CLECs. 

It has taken over a number of failing CLECs; taken over their networks, refurbished them; and turned itself into an incredibly vibrant provider of business services to large customers in over 70 

markets around the country. 

These companies focus on the large cities, because that is where 

the major customers are. They build fiber rings. They can afford to 

build out from those rings to the individual large customers. 

And there is no question in my mind that the reduction in number of CLECs is leading to a stronger marketplace. There’s also no 

question in my mind that a combination such as that between SBC 

and AT&T, or Verizon and MCI, because their networks and their 

services currently complement one another, will make them much 

stronger, better competitors in an increasingly competitive global 

marketplace. 

Mr. SMITH OF TEXAS. Okay. What about the impact of consolidation on consumers? Is it going to raise prices? Is it going to reduce 

the number of options that consumers have? 

Mr. KELLOGG. I think it will actually increase the options for consumers, in terms of having viable players who are capable of building out across the country and competing in all the markets. You 

only need three to five to really jumpstart and promote competition, and I think there’s no question we’re going to have that sort 

of competition. 

44

Mr. SMITH OF TEXAS. Okay. Lastly, maybe this is to follow up or 

give you a chance to expand an earlier answer. Why is USTA so 

supportive of the Trinko decision? 

Mr. KELLOGG. Well, the Trinko decision really follows in the line 

of standard antitrust analysis. That’s why it was a unanimous decision written by—you know, joined by all sides of that court; because they recognized that the ‘‘essential facilities’’ and ‘‘refusal to 

deal’’ doctrines have only a very limited role to play in antitrust. 

Ordinarily, no one has an obligation to assist their competitors. 

You don’t want them assisting; you want them to be competing 

with one another. Congress imposed certain obligations on the 

ILECs, to share their networks with them. But those are regulatory obligations; those are not a transformation, a fundamental 

transformation of the antitrust laws of the sort that the plaintiffs 

were attempting to obtain. 

Mr. SMITH OF TEXAS. Yes. Okay. Thank you, Mr. Kellogg. Thank 

you, Mr. Chairman. 

Mr. CANNON. Thank you, Mr. Smith. 

Mr. Delahunt, you’re next if you have some questions. You’re recognized for 5 minutes. 

Mr. DELAHUNT. I noticed Mr. Grivner wishing to respond to, I 

think, a comment by Mr. Kellogg. So let me give you the chance. 

Mr. GRIVNER. Thank you very much. First of all, based on Mr. 

Kellogg’s kind remarks, I’d like to retract the ‘‘silly’’ comment—just 

kidding. 

I want to clarify something, Congressman Smith. We’re not opposed to—I’m not opposed to consolidation. I’m opposed to concentration in markets. And there’s a big difference. For example, 

the proposed mergers, SBC and Verizon, will concentrate 80 percent of the business lines with those two entities. That’s a fairly 

difficult task to overcome. That’s concentration. That is not going 

to be good for business customers in the long term. There’s a second point that I want to clarify—— Mr. DELAHUNT. But let me interrupt——

Mr. GRIVNER. Sure. 

Mr. DELAHUNT. —and go to Mr. Kellogg. Respond to Mr. 

Grivner’s observation about 80 percent and concentration. 

Mr. KELLOGG. Well, Your Honor, there’s no question that the geographic scope of these companies is going to be larger; and therefore, they’re going to have—— Mr. DELAHUNT. Eighty percent. 

Mr. KELLOGG. They’re going to—I do not believe that that’s an 

accurate number but——

Mr. DELAHUNT. Well, what’s your number? 

Mr. KELLOGG. I don’t have a number. 

Mr. DELAHUNT. Well, let’s accept his number, then. 

Mr. KELLOGG. But certainly, for the large business customers——

Mr. DELAHUNT. Let’s accept his number, and please respond to 

my question. 

Mr. KELLOGG. For the large business customers, the ILECs are 

actually bit players in that market today. They do compete within 

their own regions, but they have had a great deal of trouble attracting large business clients across the course of the country. And 

the merger is going to allow them to do that. 

45

Mr. DELAHUNT. Mr. Moir? 

Mr. MOIR. Right. Having spent many decades representing the 

very community Mr. Kellogg just referred to, let me make a couple 

of points. First of all, be careful about the terms being used. ‘‘Large 

market:’’ The market he is describing is large business customers 

that have what I call a true multi-State—like a multinational company. They’re in every State in the country; they’re in 200, 300 locations around the United States. 

The reason is, if they were to compete for those markets when 

we put out an RFP—because we do all that by contract—outside 

their region they’d be nothing more than a reseller. They haven’t 

chosen to build long-haul facilities outside of regions that are 

meaningful. They haven’t chose to compete in the local exchange, 

like AT&T and MCI and the other facility-based CLECs. And as a 

consequence, they’ve made a strategic decision to compete within 

their own region. 

For the large customers that are within—or predominantly within—their marketplace, they are vigorously competing for those, and 

doing a very, very good job of sustaining them as customers. So you 

have to be careful which type of large customer he’s talking about. 

Mr. DELAHUNT. Anyone else want to add anything to this conversation? Let’s give you a shot, Mr. Kellogg. 

Mr. KELLOGG. I could point out in response to his point that 

AT&T and MCI are vigorous participants in the residential market. 

They’d both withdrawn from the residential market because the 

business model that they had, which was a purely resale model, 

was not working, was not viable over the long haul. 

The provision of their backbone networks and the combination 

with the regional facilities of the Bell companies will actually allow 

for much more vigorous out-of-region competition. 

Mr. DELAHUNT. Mr. Grivner? 

Mr. GRIVNER. Yes, I think an earlier comment that Mr. Kellogg 

made that I think needs clarification, he said that voice is declining. And I think, a couple of points there. One, it’s declining because they’re moving to wireless. And they are moving to companies that control 60 percent of the market, something you should 

also be concerned about. That would be Verizon and Cingular, part 

of SBC. 

And secondly, the conversion to data. Well, Voice over IP integrated access devices, those are classified as data. Voice is still 

being carried over those circuits. 

Mr. DELAHUNT. Mr. Moir? 

Mr. MOIR. One thing, and it’s troubling. It came up earlier in the 

dialogue between Congressman Smith and Mr. Kellogg. The statement, the paragraph that was read out of page 13 of the prepared 

statement, is factually incorrect. It references that the reason 

AT&T and MCI have been exiting the residential retail market—

not the market that I’m responsible for, or that we’re customers of 

at home—was, you know, because of wireless, buckets of minutes. 

And then the add-on description just made was because the UNE 

decision, their pricing plan was overturned by the courts and the 

FCC. 

And then, he makes the statement that AT&T and MCI could not 

survive as independent companies. I don’t know any analyst that 

46

agrees with that statement. I don’t know any of the management 

at either of the companies that are going to be acquired that agrees 

with that. 

What happens is they made a strategic decision because of failed 

regulatory decisions that would provide safeguarded access at reasonable prices to the bottleneck facilities. When the regulators 

failed to do their job and those with jurisdiction over them didn’t 

force their hand, AT&T and MCI, as they just mentioned, had to 

leave the market. 

But it wasn’t that they weren’t going to continue as independent 

customers—companies—because they would continue to market to 

the type of large users which the RBOCs have decided not to go 

after and spend the money on. They decided it was cheaper to just 

buy companies that already did that. They were going to continue. 

They’ve decided to merge and seek mergers because they wanted 

to protect shareholder value before they totally exited the businesses that they were losing to the RBOCs. 

Mr. DELAHUNT. Thank you. The gentleman yields back. 

Mr. CONYERS. Mr. Chairman, could I ask, before Mr. Flake begins, for 1 minute? 

Mr. CANNON. The gentleman asks 1 minute. Unanimous consent 

to take 1 minute out of order. 

Mr. CONYERS. Because I—— Mr. CANNON. Without objection, so ordered. 

Mr. CONYERS. Thank you. I just wanted to examine AT&T—the 

assertion that AT&T is not facing some kind of challenge at the 

local level. From what my staff tells me, there are some problems 

ahead there. Amazing, since they’ve been around so long. But I 

thought that there was some problem. Let me ask Kellogg first, 

and then Moir. 

Mr. KELLOGG. Yes, Your Honor. The long-distance industry is declining rapidly. More and more minutes are shifting to wireless. It’s 

simply not a profitable business; and yet it was the backbone of 

both AT&T and MCI. They’ve got great relations with large business customers, but they don’t have a viable stand-alone business. 

Mr. CONYERS. Mr. Moir? 

Mr. MOIR. Again, mix and match of what I call retail customer 

market and large multi-State. They’re clearly exiting the retail residential small-, medium-sized business market, primarily, as any of 

them will tell you—and they’ve said repeatedly in forums all over 

this country—because of failed abilities of the regulators—the 

FCC—to manage the access that we have to have to every ILEC 

in this country. 

Those are the same concerns I talked about in my written and 

in my oral. For large customers, we’re being gouged with these special access tariffs; again, because we have no choice but to use 

them. And as long as the Bells have refused to build long-haul fiber 

all over the country to duplicate the many long-haul carriers that 

are out there and outside a region, they’re going to have to pay 

these same egregious charges. Verizon’s going to have to pay, you 

know, the 80-percent rates of return charges that SBC’s charging. 

SBC’s going to have to pay when Verizon——

Mr. CONYERS. Well, they’re going down. The point is—and I 

agree——

47

Mr. MOIR. Well, they’re going down but it’s—— Mr. CONYERS. I agree with you that there are multiple reasons. 

But the fact is that things ain’t what they used to be. 

Mr. MOIR. Absolutely not. 

Mr. CONYERS. All right. 

Mr. MOIR. And the FCC is the major problem. 

Mr. CANNON. Thank you. The gentleman yields back. 

Mr. Flake, I think you’re next in line. The gentleman is recognized for 5 minutes. 

Mr. FLAKE. I thank the Chairman and the witnesses. Mr. 

Grivner, if you were over at the FCC, if you were in that position——

Mr. GRIVNER. Uh-huh. 

Mr. FLAKE. —what concerns you more? Verizon-MCI merger, or 

the SBC-AT&T? 

Mr. GRIVNER. Both mergers would concern me because of the 

concentration, in the business market specifically, at 80 percent. 

Both mergers are of a concern. Again, I want to go back to Congressman Smith’s point earlier. It’s not consolidation that’s the 

issue; it’s the concentration and the customer base. Both mergers 

have a concern for customers as well as the competitive industry. 

Mr. FLAKE. Mr. Kellogg, you’re not troubled by those mergers, either one? If those were to merge, and then merge again, would you 

be concerned? 

Mr. KELLOGG. It would depend upon the market circumstances 

at that time. Currently, I think the two mergers as proposed will 

actually lead to stronger competitors and more competition at all 

levels. How the market’s going to transform itself over the course 

of the next 5 years is really impossible to say. 

Mr. FLAKE. As long as we have an American League and a National League kind of thing, it’s all right then? Just the two? A 

third league? 

Mr. Moir, do you want to comment on that? 

Mr. MOIR. Actually, the American League—the two-league proposal is appropriate because typically—and even Baltimore would 

speak up on this—you know, they don’t compete in each other’s 

markets. That’s much the case with the Bells, also. They don’t compete in each other’s markets. And for those who are dependent 

upon accessing those markets, you either pay the freight, or you’re 

not in business. 

Mr. FLAKE. There is something called ‘‘Inter-League Play’’ now—

limited though it may be. 

Just getting kind of back to that, at what point is it your contention, Mr. Kellogg, that because of the huge shift to Voice over Internet and wireless that we simply do not need to be concerned with 

the land line consolidation? 

Mr. KELLOGG. I do think that’s correct. And I would point out 

that the Bell companies are competing vigorously with one another 

today through their wireless infrastructures. They’re spending billions to build out these wireless infrastructures throughout the 

country. They’re taking away lines every day from one another, 

through that means. 

Mr. FLAKE. And Mr. Grivner, is there a point at which Mr. Kellogg becomes correct, and that, you know, the wireline position or 

48

controversy is moot, because of this shift to wireless and Voice over 

Internet? 

Mr. GRIVNER. Well, I guess, a couple of points. First of all, that 

would be contradictory to what he said earlier, in terms about the 

investment in fiber to the home and to the business. Why would 

you do that, if you think it’s going to become moot at some point 

in time? 

I think secondly, from a shareholder perspective, you would have 

to question why they’re spending billions of dollars to buy ‘‘failing 

businesses.’’ That probably doesn’t make a lot of sense. 

And third, wireless and broadband, and VoIP, are different 

things. It’s like saying Microsoft Windows, and the PC. Without the 

two together, they don’t make any sense. VoIP is primarily software. Wireless and broadband, wireless broadband, are delivery 

mechanisms. They’re transport. They’re hard—hard assets, if you 

would. The two need to be combined together. If you look at 

Vonage, 650,000 subscribers: Very innovative, but they still rely on 

that underlying infrastructure to deliver service to customers. 

Mr. FLAKE. Yes, Mr. Moir? 

Mr. MOIR. The wireless example, again, as I—we keep hearing 

the example go back and forth. On the retail market, these are relevant, for a percentage of the customers out there. But for the 

major business industries in this country, this is totally irrelevant. 

And Mr. Kellogg and this industry’s well aware of the absurdity 

that anybody that’s going to run major data networks in this country with any type of wireless facility. It’s just not going to happen. 

Just as the cable industry doesn’t, you know. They—for security 

reasons, through-put rates, it’s wireline, period. Hopefully, fiber; as 

opposed to copper. But that’s what you’re stuck with. And for 95 

percent of the points of presence in this country, there’s only one 

person supplying those building blocks. And it’s your local ILEC, 

and that’s a fact. 

Mr. FLAKE. Thank the Chairman. 

Mr. CANNON. The gentleman yields back. Is Mr. Gallegly nearby? 

[No response.] 

Mr. CANNON. Mr. King. The gentleman is recognized for 5 minutes. 

Mr. KING. Thank you, Mr. Chairman. I appreciate the testimony 

on behalf of all the witnesses here, and the introspective questions 

that have been asked by the other Members of this panel. 

I would maybe bore into this maybe a little bit in some more detail. With regard to the questions asked by Mr. Flake, I thought 

that the question of what’s the next stage if both of these major 

mergers do go through—and I recognize your answer, Mr. Kellogg, 

with regard to that. 

I’m curious as to what your viewpoint was on the breakup of the ‘‘Baby Bells.’’ How did you view that? 

Mr. KELLOGG. Back in 1984, I thought actually it was a very procompetitive thing that happened of splitting up the AT&T into geographic regions. I think a serious mistake was made by the Department of Justice then at that point—limit the lines of business that 

the broken-off companies could go into, because that created an artificial, separate long-distance industry, which AT&T and MCI and 

Sprint dominated for a long time; instead of, you know, breaking 

49

them up and then letting them go at one another across all lines 

of business. 

Mr. KING. And these, both of these proposed large mergers that 

we have in front of us, does that simplify or complicate the approaching obligation that we’ll have to find a way for Voice over IP 

to be properly paid for by the customers? 

Mr. KELLOGG. Well, I think it will actually promote Voice over 

IP, because it will allow for more investment to the network and 

the speeding of broadband. And once broadband’s there, as somebody pointed out, Voice over IP is just software that you add on to 

your computer. And there’s no gateway function that they’re going 

to be able to prevent that. That’s here; it’s going to be the future. 

Mr. KING. And what will that do to the ILECs, then? 

Mr. KELLOGG. Well, it’s going to mean that they have to be very 

nimble; that they’re going to have to focus on broadband, on wireless, because those are really the futures. And voice, which used to 

be the whole market, is going to be, you know, an application over 

wireless and over broadband. 

Mr. KING. Thank you. And I’d direct the same questions to Mr. 

Grivner. 

Mr. GRIVNER. I think what we need to be concerned about is the 

level of innovation, especially on things like Voice over IP. The example of DSL that we’ve talked about, I worked at Ameritech in 

the ’80’s and the ’90’s, and it was available in the late 1980’s. Not 

deployed, because we didn’t want to cannibalize our second lines. 

It was a revenue decision: ‘‘Let’s not deploy that technology, because it’ll eat into future revenues and future profits.’’ Wasn’t deployed by the RBOCs until the mid-1990’s—post Covad, post 

Rhythms, post Northpoint—deploying that technology. 

Voice over IP, having worked at a technology company in the 

mid-1990’s, was available. The technology was being developed at 

that time, and could have been more rapidly deployed with higher 

investment. 

So I think the concern has to be relative to the speed of innovation you’re going to see when you see the concentration of these 

mergers, what it’s going to mean to the existing revenue streams, 

and why people would be willing to cannibalize those streams early 

for the customer benefit or for business benefit. 

Mr. KING. And would you speculate as to whether new technology will be deployed more quickly or more slowly if both mergers take place? 

Mr. GRIVNER. More slowly. 

Mr. KING. Because of less competition? 

Mr. GRIVNER. Less competition. Why do it? Again, history would 

prove that that’s not going to happen. 

Mr. KING. Thank you. Mr. Moir? 

Mr. MOIR. One thing that underpins the VoIP aspect to your 

question, in order to have VoIP, you first have to have a non-narrow-band pipe. I can go, do Internet access with a dial-up telephone 

line just fine, unless, you know, there are kids in the house that 

want to move legal video files back and forth, and all of the things 

they do. But for, you know, typical Internet access, sending e-mails, 

I can use a regular narrow-band voice line. So you could have a 

first and second line in the house, and you’re fine. 

50

To do VoIP, I have to have a line that’s—what?—two and a half 

times as expensive as the voice grade, or twice the expense, either 

from the cable company, or the phone company. So if you just look 

at the VoIP side and not at the additional revenues that flow from 

the underlying pipe, you miss the total dollar-and-cents picture. 

Mr. KING. Mr. Moir, though, I want to go to streamed, full-speed, 

interactive video some day. What’s best going to facilitate that? 

Mr. MOIR. The fattest pipes you can get ahold of. And right 

now——

Mr. KING. What mergers will best facilitate that? 

Mr. MOIR. Well, actually, the people that have 95 percent of 

those are the very companies that are called ‘‘ILECs,’’ local phone 

companies. They have the biggest ones. 

Mr. KING. I’m out of time. Thank you, Mr. Chairman. 

Mr. CANNON. Thank you. The gentleman yields back. And I think 

the next person to arrive here is probably Mr. Coble. Mr. Coble? 

Mr. COBLE. Thank you, Mr. Chairman. 

Mr. CANNON. The gentleman is recognized for 5 minutes. 

Mr. COBLE. Mr. Verveer, for the past few moments, you’ve maintained a vow of silence, so I’m going to let you start off, if I may. 

And the rest of you may join in. As you all know, section 271 longdistance approval has been granted to the Bells in all States. 

If you will, Mr. Verveer, start us off by discussing the importance 

of section 271 in creating effective telecom competition. And explain, if you will, why the Justice Department should have a continuing active role in monitoring section 271 compliance. 

Mr. VERVEER. Well, Mr. Coble, as Mr. Cannon said, section 271 

is a situation where the carrot has been eaten, at this point. And 

while there is an opportunity, in theoretical terms, to go back, try 

to propose sanctions, or even withdraw the authority to offer longdistance service, these are the kinds of sanctions that in reality 

will never be applied. 

So we have—from the standpoint of the entry into long distance, 

we have something that’s been accomplished. It’s not really going 

to be undone. The reason to want to keep the Justice Department, 

and the antitrust laws generally, engaged is, in fact, despite all of 

the discussion about the future, we really do not know how in the 

present environment—how things are going to evolve. 

And the reason we don’t know is because we are in the midst of 

a fundamental change; in the midst of a fundamental change because technology has enabled that, and competition, at least to this 

point, is demanding that the technology be deployed quickly for the 

benefit of customers. 

Now, if we had a clearer picture of how the world was going to 

evolve, and if we thought it was going to be a very stable environment over several decades, one might be able to configure an arrangement that could be handled by conventional regulation. But 

I think, in the face of these uncertainties, we need something in 

the way of a backstop, if you will. We need something to protect 

the competitiveness, the dynamism, of the industry, in the event 

that the more optimistic perspectives—some of which you’ve just 

heard—turn out not to be realized. 

Mr. COBLE. Thank you, sir. Anybody else want to weigh in on 

that? Mr. Moir? 

51

Mr. MOIR. Just briefly. I think, hopefully, the most critical safeguard that would accomplish what Mr. Verveer was referring to is, 

at some point, these carriers, no matter how big or small they are, 

have to talk to each other. They have to exchange traffic. Whether 

it’s high-speed, you know, wide-open, bits and bytes flowing back 

and forth, or whether it’s narrow-band, voice conversation. And the 

FCC has totally failed in managing that process. And as the market becomes more consolidated, those issues are going to be even 

more critical. 

Mr. COBLE. Let me have another question, maybe for Mr. 

Grivner and Mr. Kellogg. Rural carriers tend not to be companies 

usually that attract a lot of venture capital, or have the structure 

to support extensive R&D. But many of them, however, have deployed advanced technologies, once they’re available. So they do 

have an interest in innovation. What does the—what do you, Mr. 

Grivner and Mr. Kellogg, think will be the impact of these proposed mergers on innovation, if approved? 

Mr. GRIVNER. Well, as I said earlier, I think that you should be 

concerned about innovation, based on past history; DSL being a 

great example. I also think, back to your earlier question on 271, 

271 was granted based on local competition. And the basis for that 

local competition in many cases was AT&T and MCI. That’s now 

gone. So I think—back to answering your first question, I think 

271 needs to be reexamined by the Department of Justice as a result of that, because that basis is no longer there. 

But I think you should be concerned about innovation, if these 

mergers do go through. And I also think that we should reexamine 

the overall use of the universal service fund, so that it applies on 

a broader base of communication companies, as well. 

Mr. COBLE. Thank you. Mr. Kellogg, you haven’t been heard yet. 

Mr. KELLOGG. Yes, thank you. If I may make a brief caveat, I’ve 

been talking a lot about the mergers. I should note that I don’t believe USTA has taken an official position on the mergers. So I am 

speaking more in my own capacity on these issues. 

But I do think that they will lead to tremendous innovation, 

which will redound to the benefit of rural carriers. AT&T’s Bell 

Labs, one of the great innovating arms in the United States over 

the past century—taking the benefit of those technologies; deploying them with the resources that the Bell companies have, down 

to consumers; giving IP video to everybody, in competition with 

cable. 

It’s going to have huge consumer benefits, and cost reductions, 

because even though that pipe may be expensive, you’re going to 

get your cable TV over it. You’re going to get your long-distance 

service over it. You’re going to get your local service over it. And 

everybody’s going to benefit, and the economy is going to benefit, 

as well. 

Mr. COBLE. Mr. Moir? 

Mr. MOIR. Just one—an aspect of your question, I believe, was 

the impact on the 1,100 or so rural phone companies out there. I 

mean, one of the advantages, as we’ve learned over the years, of 

not being the first one to deploy a new technology is if you—they 

don’t always work; they’re not always the most cost-effective. And 

some of the best-built systems out there are in rural America, beVerDate 0ct 09 2002 13:19 Jul 11, 2005 Jkt 000000 PO 00000 Frm 00055 Fmt 6633 Sfmt 6601 G:\WORK\FULL\042005\20708.000 HJUD1 PsN: 20708
52

cause they took a more prudent approach to deploying tested technologies, as opposed to being on the absolute cutting edge. 

Mr. COBLE. Yes. Thank you, gentlemen, for being with us. 

Mr. Chairman, I’ll yield back my time. 

Mr. CANNON. Thank you. The gentleman yields back. 

Ms. Lofgren? 

Ms. LOFGREN. Thank you, Mr. Chairman. 

Mr. CANNON. The gentlelady is recognized for 5 minutes. 

Ms. LOFGREN. I won’t take the whole 5 minutes. First, let me 

apologize for my tardiness in appearing. I had my Cyber Security 

Bill finally up for markup, and it passed. But I had to be there. 

I have, however, read the testimony. I’m very interested in this. 

And I will just say, I don’t have a question to ask, but I am concerned about the mergers. And I know that there’s value in some 

respects—and everyone has to love the Bell Labs. But the history 

is, when you have competition, you have innovation. And I think 

the consolidation should give us pause and concern, in terms of innovation for the future. And you know, I just do have some concerns. 

And we saw, really, a flowering of technology innovation for a 

while, and I am concerned that that may diminish as time goes on, 

as a result of the lack of competition. So I’ll just state that. I mean, 

if someone wants to counter that statement, you’d be welcome to 

do so. 

Mr. GRIVNER. I don’t want to counter it. I just want to make one 

comment; that the Bell Labs innovation, a lot of that was spun off 

when they created Lucent Technologies. 

Ms. LOFGREN. That’s right. That’s right. 

Mr. GRIVNER. And I don’t think that—as my best guess, that’s 

still not part of AT&T today. 

Ms. LOFGREN. No. But I mean, if you take a look at, really, the 

explosion of innovation——

Mr. GRIVNER. Right. Right. Right. I agree with that. 

Ms. LOFGREN. —it was a result of the competition. 

Mr. GRIVNER. Right. 

Ms. LOFGREN. And that’s always the case. 

Mr. GRIVNER. I agree. 

Ms. LOFGREN. So, unless there’s further comment from one of the 

witnesses, I’ll yield back, Mr. Chairman. 

Mr. CANNON. The gentlelady yields back. And let me associate 

myself with her comments. Competition has resulted in remarkable 

things, and that’s a matter of deep concern. 

Mr. Franks, the gentleman from Arizona, is recognized for 5 minutes. 

Mr. FRANKS. Well, thank you, Mr. Chairman. And Mr. Grivner, 

I have to say that most of the questions that I had in mind to ask 

have been asked one way or another already. And so perhaps I can 

just rephrase some of them, and give me what you can. 

Mr. GRIVNER. Okay. 

Mr. FRANKS. When I was in the legislature about 20 years ago—

I was only a kid then, of course—we voted to break up the Bell system, the ‘‘Ma Bell’’ system. 

Mr. GRIVNER. Uh-huh. 

53

Mr. FRANKS. And of course, the end goal there was to do everything that we could to foster competition and to create innovation 

and create new entrants into the market; and also, to get away 

from the Government subsidy that was such a part of that system. 

And I think, in a sense, you know, I look at my cell phone today, 

and I can pull up my web site, and I can talk to Australia for ten 

cents a minute. I find the whole explosion of technology to be a fascinating and magnificent thing. 

Having said that, I know that perhaps the biggest challenge on 

the table here are these mergers. I mean, that’s kind of the pink 

elephant in the room that everybody is talking about. And without, 

again, repeating some of the previous questions, do you believe, 

given some of the statements made, that—if the mergers do occur, 

that the business wireline would be concentrated, at least in the 

majority sense—do you believe that that will have a negative or 

positive effect on new entrants in the market, new innovation, and 

competition in general? 

Mr. GRIVNER. The answer is, I absolutely do believe that. And as 

I said earlier—I’m not sure you were here at the time—that these 

two mergers will concentrate 80 percent of the wireline business inside these two mergers. That cannot be good from a competitive 

perspective. It can’t be good for customers. 

And I think, you know, these mergers are so massive that a 

branding suggestion might be to call them ‘‘AT&T East’’ and ‘‘AT&T West.’’ Because that’s really what we’re doing, is we’re back 

to that time frame again of putting AT&T back together again. 

Mr. FRANKS. You said AT&T East and West. 

Mr. GRIVNER. East and West, right. 

Mr. FRANKS. But do you sense any distinction between the two 

mergers that is of consequence? 

Mr. GRIVNER. Not between these two particular mergers. And 

again, to clarify a point, I am not opposed to consolidation. I’m not 

opposed to the mergers. These two do concentrate a great deal of 

business line access lines in two entities. 

Mr. FRANKS. If the mergers should go ahead and be effected, do 

you think—and I understand that, you know, again, you know, 

there’s a lot of people up here that are certainly not experts in telecommunications. But I understand a lot of times that the business 

services essentially end up carrying the residential services, to a 

large extent; at least, that’s been our experience so far. Is that correct? 

Mr. GRIVNER. When I was at Ameritech—but that was a while 

ago—yes, that was true. But I believe it’s still true today. I’m not 

a hundred-percent sure of that. 

Mr. FRANKS. Well, predicated on the notion that it might still be, 

if the mergers are effected, do you—what other entities are out 

there, what other companies are out there, that might provide 

some competition for the two companies that would be essentially 

a result of the mergers? 

Mr. GRIVNER. I think that’s a—in terms of size, you’d probably 

have to look outside the telecommunications industry for companies that could combat the cash flow of, for example, an SBC, in 

terms of what it brings in in terms of capital and what it could reinvest back in its network. 

54

When you look at SBC and Verizon, and then you look at the 

next players, there’s a substantial drop. You’d have to look at a 

merger of different companies in different industries, really, to 

combat something of that magnitude. 

Mr. FRANKS. Well, Mr. Moir, I might ask you a question. You 

know, everyone seemingly on both sides of the aisle today understand the tremendous benefit of competition and innovation. And 

I’m certainly glad to hear that. I hope we can hear that in the future, you know. 

But often times, Government doesn’t just try to create competition. It tries to create a framework—or it should—a framework of 

trust, to where companies that are placing capital at risk and investment can say, ‘‘Well, we’re in an environment where business 

at least will be done decently and in order, and where financial 

statements will mean what they say.’’ And you know, the big challenge for Government, in my mind, is to create an environment 

where competition can take place and where we’re essentially just 

the umpire, the referees; and that we don’t favor one or the other. 

Given that sense, what do you think would be the position that, 

if you were emperor of the world here and representative of Government—what kind of environment would you try to create here, 

given the dynamic of these potential mergers, and to the end that 

competition and the people are best served? 

Mr. MOIR. Thank you. I think the answer is the greater a level 

of choice that exists in markets, the less need there is for Government policymakers to get in the way. Maybe it’s at the high guideline, but it’s a sliding scale. The less choice that exists, then the 

Government involvement in making sure everybody deals with 

each other fairly has to be less benign and more active. 

And the types of customers I represent—not you and I at home, 

but the very large customers that spend, you know, tens to hundreds of millions of dollars a year on telecommunications—when 95 

percent of their fundamental building blocks can only be purchased 

from the local phone company, then I’d say the scale needs to slide 

far more than the FCC has been sliding it recently. And deregulating those type of prices doesn’t pass any business test I’m aware 

of. 

And as a consequence, we have an ironic situation. Mr. Conyers 

mentioned earlier in the afternoon global issues. One point I 

haven’t made is that we have a situation now where—which is absolutely unheard of at divestiture ten and 20 years ago—that I can 

now sit down with large users and, when we’re putting together a 

global network, get these building block pieces in the U.K. cheaper 

than I can get them here in the United States. 

So if I’m putting together a multinational network—which large 

multinationals have—and I’m putting multiple, you know, nodes 

around the globe—typically, data, for instance—I may choose to 

put a redundant facility—because you always have to deal with 

time zones and when there are problems—I may put a redundant 

facility in the U.K.; not just because, you know, I need a redundant 

facility, but also because it’s cheaper. Whereas, 5 years ago, I 

would have put that redundant facility in the U.S. 

That’s what’s happened when we have regulators making bad decisions, you know. That’s the extreme I can take for choice. If I’m 

55

here in the United States, I’m stuck for 95 percent of my choices. 

There aren’t any. 

Mr. FRANKS. Well, Mr. Chairman, last question, then. 

Mr. CANNON. The gentleman’s time has expired. 

Mr. FRANKS. Yes, thank you. 

Mr. CANNON. I think we’re going to do another round. But given 

the fact that we have several people waiting, let me recognize—Mr. 

Issa is out, right? So, Mr. Pence, did you have some questions? The 

gentleman is recognized for 5 minutes. 

Mr. PENCE. I do, Chairman. And I’d be pleased to yield 2 minutes 

of my time to Mr. Franks. 

Mr. FRANKS. I’m fine. Thank you, sir. 

Mr. PENCE. Okay. Thanks for holding this hearing, Mr. Chairman, and I thank the panel. I’ve been coming and going, like a lot 

of our Members, but I’m grateful for your expertise and the diversity of views that are represented here. 

It’s apropos—Mr. Moir? Thanks. Your comment about global 

competition is what occurs to me. I’m a free-market conservative. 

I wouldn’t mind a different phone company in every county in 

America—theoretically—and just let them go after it. I’m just not 

sure that’s realistic. 

And I guess my question for the panel is—has to do with what 

may have come up from Mr. Conyers earlier—is this issue of global 

competition, and the recognition that while we do concern ourselves—and as the Chairman said, I identify myself, too, with Ms. 

Lofgren’s comments about believing that in a competitive marketplace it is axiomatic that the quality goes up and the cost to consumers goes down. 

But my sense about this—and I’d love Mr. Moir or Mr. Kellogg, 

specifically, to respond to it—is that in an increasingly global telecommunications marketplace, is there—are there economies of 

scale, are there efficiencies, are there capitalization issues and 

market access issues that actually will enhance the ability of these 

United States companies to compete in what is actually the real 

arena; which is a global telecommunications arena? 

And I say that knowing that an awful lot of people pick up the 

phone and dial an ‘‘800’’ number and have those orders fulfilled 

over the telephone or over the Internet on the other side of the 

world. And the Midwest-dialect-speaking person on the other end 

of the phone, they haven’t got the slightest idea—you know, literally, is in a country that would be very foreign to the people of 

Rushville, Indiana. 

So it’s recognizing that globalization of the marketplace. Do these 

mergers help or hinder the ability of these American companies to 

compete and succeed on the global stage? And if I could ask Mr. 

Moir and then Mr. Kellogg to respond to that? 

Mr. MOIR. Well, let’s look at the global market today, pre-merger, 

two ways. From a customer standpoint, I’ve got, as an example, 

let’s say, points of presence in 50 countries around the world, so 

I’m going to have to run links to all of those countries. I’ll use a 

combination of one of a limited number of very large U.S. providers, two of them being involved in mergers that we’re talking 

about here today, maybe some others. 

56

And I’ll have—and if I sign the contracts with those, or avail myself of one of the other large global companies that compete with 

AT&T and MCI to provide these backbone services, I still have to 

connect locally. AT&T doesn’t have a point of presence to every customer prem around the world. They’re dependent upon these local 

phone companies. 

The reference I made earlier was that in putting together, you 

know, kind of the long-haul facilities—in this case, really long-haul, 

because we’re going across country boundaries and oceans—those 

facilities, we actually have a reasonable amount of choice now. And 

the mergers aren’t going to change the number of people supplying 

that from the U.S. 

Mr. PENCE. Okay. 

Mr. MOIR. But the point I was making is that when I go to connect those facilities in some countries in the world now to my customer premises, even though I may not have the breadth of choices 

that I’d like in some of those countries, in the U.K., for instance, 

I’m not going to pay the same egregious rates that I’m now being 

forced to pay here in the United States, because the regulators did 

a better job of incenting more cost-effective prices. 

Mr. PENCE. But would these mergers—to my point, because I 

know I’m looking at a yellow light. 

Mr. MOIR. Yes. Okay. 

Mr. PENCE. Do they help or hurt the ability of these companies 

to compete globally? 

Mr. GRIVNER. Can I take a shot? Can I take a shot at that? 

Mr. PENCE. I’d be pleased. 

Mr. GRIVNER. Thirty seconds. 

Mr. PENCE. Sure. Twenty seconds. 

Mr. MOIR. The merger doesn’t impact the prices they charge—the 

local phone companies charge us. Only the FCC can deal with that. 

So that remains a problem, regardless of the mergers. 

Mr. PENCE. I see. 

Mr. GRIVNER. I think it’s a great question. And the reason I 

think it’s a great question is because next week I’m supposed to 

speak in London at a global telecommunications conference. So beforehand, they give you a list of questions. The number-one question they want me to ask, companies from Asia, telecommunication 

companies, ‘‘If these mergers go through, are our rates for terminating in the United States going to go up? Because it’s only going 

to be two companies, and it’s only going to be those two we have 

to choose from.’’ That’s their concern. Is it going to be cost-effective 

to do business in the United States? 

Mr. MOIR. And those rates are already excessive now. We’re running in rates of return of 70 and 80 percent, which are good by any 

businessperson’s——

Mr. PENCE. Mr. Chairman, could Mr. Kellogg respond to that 

briefly? 

Mr. CANNON. Certainly. 

Mr. KELLOGG. Thanks, Mr. Chairman. It’s a very acute question, 

Mr. Pence, because we do live in an increasingly global marketplace. These are huge multinational companies, who need comprehensive solutions. Today, Verizon and SBC are negligible players in that market. AT&T and MCI are much more significant. ToVerDate 0ct 09 2002 13:19 Jul 11, 2005 Jkt 000000 PO 00000 Frm 00060 Fmt 6633 Sfmt 6601 G:\WORK\FULL\042005\20708.000 HJUD1 PsN: 20708
57

gether, they will be able to form flagship carriers from the United 

States that can compete in the global marketplace against British 

Telecom, the German telephone companies, the Japanese telephone 

companies, in order to get our share of that global business. It’s an 

extremely important byproduct of these mergers. 

Mr. GRIVNER. Once they buy these failing businesses. 

Mr. CANNON. The gentleman yields back. For purposes of order, 

let me just point out the order of people left to ask questions: Mr. 

Lungren next, Mr. Gohmert, Mr. Chabot, Mr. Feeney, and then Mr. 

Goodlatte—well, it looks like Mr. Feeney may have left. 

So Mr. Lungren? The gentleman is recognized for 5 minutes. 

Mr. LUNGREN. Thank you, Mr. Chairman. Boy, am I frustrated. 

I feel like when I go and I ask a mechanic about my car. I don’t 

know much about cars. And I can go to one mechanic, and he can 

tell me one thing, and it sounds great. And then I go to another 

mechanic, and he tells me another thing. And later on, I find out 

that they’re 180 degrees away from the same position. But they 

both sound equally persuasive to me. 

I’ve left the Congress for 16 years; I’m just back. Twenty-some 

years ago, we were dealing with telecom stuff here. It’s always 

been my observation that usually the Congress passes legislation 

just about the time the communications technology changes, so the 

legislation we passed is not really applicable. 

I was one of those that thought, ‘‘Hey, let’s break up AT&T,’’ and 

then had to answer questions of my wife why our telephone service 

wasn’t as good as it was when we had AT&T. I’ve been to—my 

home town at one time was Roosevelt, California. We had a small, 

local company there that’s done pretty well, now known as ‘‘Share 

West.’’ I remember I was able to get broadband there. I move out 

to Northern Virginia, a piece of property that used to be owned by 

George Washington. I couldn’t get broadband there. Yet I got advertising asking me to sign up for it, continually. 

So frankly, I’m going to tell you, I’m not an expert on this. Maybe 

there are a lot of experts on this panel on this side, but I’m not 

one of them. I’m just one of those people that’s tried to figure out 

why we’re back where we were about 20 years ago. Only this time, 

AT&T is being purchased by one of the babies, but we’re going to 

end up with something. 

But one thing I am somewhat expert on is law enforcement, and 

now on homeland security. And so that’s where I’d like to focus this 

on. And it’s a question to all four of you, and you can answer it 

as best you can, or if you want to answer it. 

And that is, I’m concerned about infrastructure protection. I’m 

concerned about us protecting ourselves from attack by terrorists, 

attack in various different ways that impact our overall communications infrastructure. And I guess my question is this. Would 

these mergers have any impact whatsoever on our capacity to be 

able to protect against that? 

Or to put it another way, will these merged companies, because 

of enhanced capitalization, have the capacity to do more for infrastructure protection than otherwise? Or are there any incentives 

for them to do those things that are necessary to protect us against 

that? Because my observation is 85 percent of infrastructure of all 

types is privately owned, not Government owned. And yet, if we 

58

have an attack here in the United States, they’re going to go after 

everything that they can destroy. 

So I guess that’s my question to the four of you. Can you give 

me any idea whether these mergers that we’re talking about would 

in any way impact the capacity of the United States to protect 

against infrastructure attacks by those who would wish to do us 

harm? 

Mr. GRIVNER. I will start. I am not an expert in law enforcement; 

however, I have been involved quite extensively at one time in the 

CFIUS process, so I understand the concerns and issues at a very 

broad level. I think in telecommunications, when we sell something 

to a customer, especially a large business customer, one of the 

things they’re always concerned about is diversity: more than one 

choice, more than one path. What happens if this happens? 

When you narrow it down to two paths and you say if you target 

just those two companies, you’ve wiped out most of the telecommunication business market in the United States, by just targeting those two companies, yes, you should be concerned by those 

two mergers that comprise 80 percent of the business market. 

And if you target just those two companies—and people spend 

day and night working on that stuff all the time—you should be 

concerned. 

Mr. LUNGREN. Mr. Moir? 

Mr. MOIR. One of the disadvantages that large customers have 

always seen with a, you know, one shop provides all, is that if 

there’s true synergies within that network design from end to end, 

and they use the same protocols, they use the same network software, from a customer standpoint, many customers have historically—and Mr. Grivner knows this—have actually split their traffic 

between multiple carriers when they go out and do their RFPs. 

Government does that, too, from time to time. 

And the reason is, even if the facilities from the two carriers are 

coming into my building in different sides, or using different power 

grids, the advantage is that every once in a while somebody reprograms the electronics, and the system crashes. So at least some of 

my traffic will continue to go. And that’s why there are a number 

of smart users out there that take redundancy and diverse routing 

to the extreme. 

I’m not sure whether the mergers really change—with the carriers, it’s usually either an economic analysis, or the only way 

they’re going to get a contract because the customer demands that. 

Many customers, with carriers screaming and hollering, have been 

demanding that type of protection for decades. There are a number 

who don’t. A number of them are in the U.S. Government that 

don’t. 

And as a consequence, you know, you leave yourself more vulnerable in the way the networks are configured. And that’s not really 

an antitrust issue or a merger issue; it’s a network—it’s the way 

the networks are designed for the customers, whether it’s DOD or 

anybody else. And you’d be surprised. 

Mr. LUNGREN. Mr. Kellogg, do you have any thoughts on that? 

Mr. KELLOGG. May I answer, Mr. Chairman? 

Mr. CANNON. Certainly. Go ahead. 

59

Mr. KELLOGG. It’s an infrastructure question. When the World 

Trade Center came down on September 11th, it destroyed a Bell 

Atlantic, a Verizon central office. Verizon, because it had the infrastructure in place, was immediately able to route around that and 

use redundancy. Working with AT&T, they set up wireless phone 

banks and such. 

The CLECs couldn’t help at all, because they were riding over 

Verizon’s network, not building infrastructure of their own. 

If we want to be safe from terrorist attacks if we want a robust 

network, we have to invest capital in our network. And these mergers are going to allow that to happen. 

Mr. CANNON. Thank you, Mr. Kellogg. The gentleman yields 

back. I want to just point out that I think AT&T was a CLEC in 

New York City. And they were able to, as part of that rerouting 

and efficient service and——

Mr. KELLOGG. It was AT&T Wireless, Mr. Chairman; not AT&T 

as a CLEC. 

Mr. CANNON. Mr. Boucher. The gentleman is recognized for 5 

minutes. 

Mr. BOUCHER. Thank you very much, Mr. Chairman. It occurs to 

me that the advent of a range of new Internet-enabled services, 

Voice over Internet Protocol, multi-channel video delivered by the 

Internet Protocol—a subject about which we had a hearing this 

morning, in fact, in the Commerce Committee—will help to promote competition. 

I’m wondering if, in your view, the case can be made that the 

mergers that are the subject of this hearing would help to enhance 

the expansion of broadband in a way that would facilitate the delivery of these new Internet-based services? Mr. Kellogg, would you 

care to comment? Mr. Verveer, perhaps? 

Mr. KELLOGG. Absolutely, Mr. Boucher. I think that these mergers will allow further investment of capital. It’s going to cost billions of dollars to build out broadband to every home in America. 

There’s a huge risk involved in doing that and it takes—It takes 

a great deal of capital. 

The second thing that’s going to be required is a regulatory 

framework in which people feel that they’re going to be able to 

compete freely once they do invest that capital. And that means 

clearing away, frankly, a lot of the State franchise requirements. 

The telephone companies already have franchises to deploy their 

networks. And requiring a second franchise in order to provide 

video over those networks is simply going to allow the incumbent 

cable industry to block developments and to keep their entrenched 

position, instead of introducing competition. 

Mr. BOUCHER. Well, without diving into what is going to be a 

very controversial subject, and that is the extent to which the new 

offerors of IP video would be required to comply with local franchise requirements—a debate we will have, but I think on another 

day—let me take from your comment the point that by allowing a 

greater aggregation of capital, these mergers would have the effect 

of enabling and enhancing a more rapid deployment of broadband. 

I take it, you would agree with that? 

60

Mr. KELLOGG. Absolutely. Particularly with, for example, AT&T’s 

backbone network, which is going to allow—which is going to be 

very helpful in combination with the local delivery facilities. 

Mr. BOUCHER. Okay. Mr. Verveer, comment? 

Mr. VERVEER. Yes, sir. It’s certainly true that the larger companies will in some sense have greater financial capacity. I think the 

question is, will they devote that financial capacity to the expansion geographically of broadband types of transmission services? 

The answer is, I don’t know if they will do that. I am reasonably 

confident that they are more likely to do it if they find themselves 

in a competitive environment, if they are subject to competitive 

pressure. 

Mr. BOUCHER. Well, thank you both for that. There’s an issue 

that I’m very interested in, which is not exactly at the core of the 

subject matter of this hearing; but each of you has expertise that 

could bear on this, and I’m going to take the opportunity of this 

conversation to raise it with you. 

I strongly believe that we should have a principle of network 

neutrality. And what that basically means, in the simplest terms, 

is that a broadband provider would be prohibited by law from discriminating against an unaffiliated content provider in favor of the 

content that happens to be affiliated with the broadband provider. 

So, for example, an incentive might well exist for a local telephone company offering DSL service to block access to Vonage by 

the customers for that DSL service. And in fact, we have an actual 

example of that happening. By the same token, a cable company 

would have incentive to perhaps degrade or slow down access to 

content residing somewhere out on the Internet that is not affiliated with that cable company—multi-channel video perhaps being 

offered by some independent provider. 

And it just seems to me that it’s an important principle to say 

that networks have to be operated in a way that enables the subscriber to the DSL service or the cable modem service to reach any 

website that subscriber wants to, and to be able to do so 

unimpeded by the broadband provider. 

I’d like to get a statement of agreement to that basic principle 

from you, if you’re willing to provide it. Who wants to start? 

Mr. GRIVNER. Well, based on how you’ve described it, I’d have to 

agree with that. I think the—— Mr. BOUCHER. Excellent. You’re a terrific witness. 

Mr. GRIVNER. I think the Vonage——

[Laughter.] 

Mr. GRIVNER. I think the Vonage example is a fabulous one, 

where they were blocked. And I think, you know, that obviously not 

the way things are going to be able to work, if this is going to be 

truly a competitive industry. 

Mr. BOUCHER. Thank you, Mr. Grivner. Mr. Moir? 

Mr. MOIR. As a consumer every day at home, I totally agree. 

Mr. BOUCHER. Thank you, sir. Mr. Kellogg? 

Mr. KELLOGG. Mr. Boucher, I think the most—the key level of— level playing field is on an intermodal, rather than an intramodal 

level. I think as long as cable, broadband, wireless, DSL, are all 

treated alike from a regulatory perspective, you’re going to have all 

the competition you want. 

61

Mr. BOUCHER. Okay. I’ll take that as something less than a direct answer; but thank you. Mr. Verveer? 

Mr. VERVEER. Well, I think Mr. Kellogg actually has crystallized 

what is the critical question. It is: How competitive will the transmission systems be? If we have a workably competitive environment, we probably don’t have to have the kind of duty to deal that 

we will require if we don’t have a workably competitive environment. 

And to, I’m afraid, repeat the same kind of things I’ve been saying right along, I think we cannot be sure at this point how that’s 

going to work out. We might well find ourselves in a situation 

where in many parts of the country there’s no broadband available 

to residential users; in other parts, there may only be one provider, 

or two providers. 

A lot depends on how effectively the cable companies, the DSL— the telephone companies compete with one another in terms of deploying broadband. And a lot depends on whether or not the wireless possibilities, in terms of WiMAX and other things, and the 

broadband over power line possibilities mature into something that 

really is available. The less it’s available, the more force there is 

to the proposition you’ve raised. 

Mr. BOUCHER. Thank you very much. Let me say, I share your 

enthusiasm for competitive markets. And that’s one of the reasons 

I’m so glad to see the advent of IP video and VoIP, which I think 

undoubtedly will benefit consumers through having choice of service. 

But I do not share your unbridled faith in competition as being 

the answer to all problems. I think we still are going to need some 

fundamental principles about how platforms operate. But thank 

you very much for your comments. And thank you, Mr. Chairman. 

Mr. CANNON. The gentleman yields back. Before I recognize Mr. 

Gohmert, I think that it was actually—Mr. Kellogg, it was actually 

AT&T, not AT&T Wireless, that had a backup switch. I think there 

was another—Covad or another CLEC. I’d appreciate it if you’d 

check that out. You may have some better information. 

But I think the point is that when you have competition, by nature, you have redundancy. And that’s why I think that point’s important. 

But let me recognize Mr. Gohmert. And unless you’d like to respond to that right now, we’d be happy to just have you submit 

that for the record. 

Mr. KELLOGG. I’ll be happy to investigate it further. 

Mr. CANNON. Thank you. Mr. Gohmert, you’re recognized for 5 

minutes. 

Mr. GOHMERT. Thank you, Mr. Chairman. Appreciate the hearing 

and the opportunity to hear from these good witnesses. 

Gentlemen, I’d like to hear from each of you. And I don’t want 

to be repetitive, or anybody to be redundant, but there’s been discussion about the mergers, two mergers, creating actually 80 percent of the market within two companies. 

I’m curious, from your perspective, are there any aspects to the 

telecom business that would prevent the 20 percent and those holding that 20 percent business from cutting in competitively to the 

80 percent? You know, and in the back of my mind, I’m thinking 

62

about the Sherman Antitrust Act and whether we’re getting—you 

know, what problems might be gotten into there. 

So do you see anything that would prevent those holding the 20 

percent from cutting into that 80 percent? And if so, what? 

Mr. GRIVNER. I certainly can’t speak from a legal perspective, 

and I’m sure that—— Mr. GOHMERT. Well, I was not asking you from a legal perspective. That’s where I’m coming from—— Mr. GRIVNER. But from a business perspective. 

Mr. GOHMERT. —but I want your factual, business perspective. 

Mr. GRIVNER. Yes. I think, from a business perspective, when 

someone has 80 percent of the market, you’d certainly have to be 

concerned with pricing pressures they would place on competition 

in the marketplace. Lack of innovation in the marketplace would 

be certainly one concern. 

Mr. GOHMERT. How so, lack of innovation? 

Mr. GRIVNER. Well, lack of innovation, I think as I mentioned a 

couple of times, has been a historical problem for the incumbents, 

in terms of DSL deployment being several years behind the actual 

technology being available, Voice over IP several years behind the 

technology being available. So I think you limit the innovation relative to customers. And I think you have got to be concerned about 

market power, when you start at 80 percent and there’s only 20 

percent of the market left. 

Mr. GOHMERT. Yes, sir? 

Mr. MOIR. You know, there are two perspectives. If you’re looking 

at it from the perspective of a residential customer—you and I, 

when we go home—small- and medium-sized businesses, all three 

of those categories have one thing in common. They probably have 

one, or a handful, of points of presence that fall within any one 

local phone company’s footprint. From that standpoint, the merger’s probably not going to have a radical impact on these companies 

competing elsewhere. 

But for another type of customer, the type that I’ve talked about 

earlier here today, the customer that’s in, let’s say, all 50 States, 

to date, the Bell operating companies, as a practical matter, refuse 

to compete outside their jurisdictional footprint. 

And even though there are CLECs that have done it, even 

though AT&T has done it and MCI has done it, I think the interesting question’s going to be—and none of us, despite the rhetoric 

that may occur from some of the players, really knows for sure 

what will happen out of region when this merger occurs. You know, 

will Verizon, if it follows through with the MCI merger, or SBC, 

start to aggressively pursue the construction or the expansion of 

existing AT&T or MCI CLEC facilities that are out of region? You 

know, SBC in New York, or Virginia——

Mr. GOHMERT. Connecticut. 

Mr. MOIR. —or Connecticut, Verizon in Houston and Dallas. Will 

they take those existing CLEC facilities that they’re acquiring 

through the merger and expand them with capital investment, extend out further? Will they build new ones out of region? I just 

don’t know. 

And I think we have to disregard what people are saying right 

now because, as we heard around the ’96 act, there were a lot of 

63

statements made that many of us—they filled a lot of hearing 

records, but basically they haven’t carried one bit or byte of traffic 

so far. 

Mr. KELLOGG. On a residential level, I think it’s clear that intermodal competition is where competition is going to be. That’s competition from wireless, competition from cable, competition from 

VoIP. 

On a business level, in the major cities we have it. You know, 

you look at any big city in the country—Boston, there are 22 operational CLEC networks; in Atlanta, there are 21; in Seattle, there’s 

17. SBC Telecom is present in every one of those markets; as is 

AT&T. They will now join together, and they’ll be an even stronger 

out-of-region competitor in those markets. I think there is going to 

be a tremendous increase in competition following these mergers. 

Mr. VERVEER. I would assume, in answer to your question, that, 

first and foremost, the antitrust authorities will look at the metropolitan area networks that MCI and AT&T control within the regions of the companies that are acquiring them. And my guess is 

that ultimately they’ll decide that these have to be divested, along 

with either the customers or some obligation to maintain the traffic 

on these, to make the divestitures successful. That’s the one concrete thing you could do to try to effect the competition of the kind 

you were describing. 

Beyond that, my assumption is that the antitrust authorities are 

going to look very, very hard at what is required to compete in the 

enterprise market, to try to understand what kinds of assets one 

needs, to see if there’s anything that ought to be divested or otherwise effected in connection with the transaction. 

But it seems to me it has to be the case that we are at least losing some potential—some actual competition, and some potential 

competition, with the merger of these two enterprises into the large 

Bell companies. 

Mr. GOHMERT. Thank you very much. I appreciate your individual perspectives. Thank you, Mr. Chairman. 

Mr. CANNON. The gentleman yields back. 

Mr. Chabot. 

Mr. CHABOT. Thank you, Mr. Chairman. 

Mr. CANNON. The gentleman is recognized for 5 minutes. 

Mr. CHABOT. Thank you. I’d like to apologize to the panel for not 

being here during most of their testimony; although I’ve heard a 

number of the very interesting questions and responses thereto. I 

was down at the White House signing ceremony of the bankruptcy 

bill. I know a lot of the business folks, especially, but many consumers have been waiting now for 8 years to get relief under this 

bill with the reforms there. So it’s long overdue and, I can report, 

has been signed into law. I saw the President sign it. So it’s now 

the law of the land. 

Let me start out with you, Mr. Grivner, if I could. In a filing 

made at the California Public Utility Commission, CalTel, a group 

to which XO belongs, advocated that as a condition of approving 

the SBC-AT&T transaction, the California PUC should permit the 

abrogation of wholesale and retail contracts with SBC. This seems 

to be a somewhat radical request. Do you actually believe that a 

64

regulatory agency should be permitted to frustrate contracts that 

have been lawfully executed and signed by willing parties? 

Mr. GRIVNER. Well, first of all, those are contracts that were 

signed under regulatory rules, and are subject to regulation. And 

I think what we’re currently asking for, before we jump to conclusions or remedies or anything along those lines, is a clear viewing 

by the Department of Justice and the FCC of both of these mergers. But certainly, I think contracts that were built under those 

regulatory rules need to be reexamined, because I assume the rules 

will change to some degree. 

Mr. CHABOT. Okay. Let me ask the other panel members, if I 

could, a follow-up here. In the absence of any judicial finding that 

a party has an unlawful monopoly, for example, should an agency 

of the Government be able to declare that all signed contracts of 

a specific named party are open for renegotiation? Any of the other 

three that would like to respond, I’d be pleased to hear from you. 

Mr. Kellogg? 

Mr. KELLOGG. I would certainly say, no, with one caveat. There 

are certain circumstances—for example, the FCC has imposed certain rules on unbundling which were incorporated into contracts 

between ILECs and CLECs, and those rules were thrown out by 

the court. And the ILECs had to enter into these contracts. The 

court said—subsequently threw out the rules. In that case, as a 

remedy, on remand to the agency, an opportunity to change those 

contracts could occur. But I would not say in the ordinary circumstance of a commercial contract, just because a merger takes 

place. 

Mr. CHABOT. Okay. 

Mr. VERVEER. Most traditional public utility commissions do in 

fact have the ability to require the reformation of contracts. It is 

the kind of authority that is not used very often. It’s only used, presumably, when there is a very strong rational basis for doing it. 

But it’s not the kind of requirement that is necessarily an unusual 

one. It’s particularly true in the world of communications, as we 

have moved from a world of tariffs more and more to a world of 

contracts. 

Mr. CHABOT. Mr. Moir? 

Mr. MOIR. The answer depends. When they involve the world of 

telecommunications and they involve contracts where one party has 

been, you know, in control of the local bottleneck facility and has 

significant market power, Mr. Verveer is correct, we have seen the 

regulators from time to time get involved. 

The first one I was involved in seeing abrogated was a divestiture—these huge, sophisticated switches that basically large companies and Government agencies had around the country, that basically you had no choice but to sign, if you wanted. The FCC led, 

through a series of decisions, the abrogation of those provisions, 

and allowed the parties to basically rebid those relationships, or 

seek other suppliers. So depending upon the situation, I’d say, yes, 

that’s a good policy. 

Mr. CHABOT. Okay. And finally, Mr. Moir, let me ask you this, 

if I can. XO and other competitive carriers have urged the California PUC to require the divestiture of AT&T’s customer base as 

a condition of approving the SBC-AT&T transaction. Would the 

65

business customers you represent want to be a part of a process in 

which they are told they cannot do business with their carrier of 

choice? And wouldn’t a requirement of this nature be quite disruptive to businesses that depend on telecommunications as a key 

input to their business? 

Mr. MOIR. Well, I think you probably know what my answer is 

going to be. And that is we are very, very concerned, anybody tells 

us, any time, who we can negotiate, and who we can’t negotiate; 

and worse, anybody who’s been through the process, it’s necessary 

to come up with these contracts that typically take, end to end, 18 

months to negotiate. To have them abrogated by a third party, over 

user objection, to me is very, very troubling. 

And what’s particularly concerning is the—when these piece-part 

contracts may be part of a sophisticated nationwide or even global 

network that the company has. Then problems are concerned. 

I understand why some CLECs may be interested in ILEC facilities right now that either of the carriers have—you know, MCI or 

AT&T, the CLEC facilities they have. But if you start to monkey 

around with the contracts we have, which cover far more than 

service—there are all sorts of provisions being provided under 

those contracts that go beyond just the raw transmission of bits 

and bytes—then that’s very, very troubling. 

Mr. CHABOT. Thank you. 

Mr. CANNON. I thank the gentleman. The gentleman yields back. 

Mr. Goodlatte. The gentleman is recognized for 5 minutes. 

Mr. GOODLATTE. Thank you, Mr. Chairman. Mr. Grivner, are you 

concerned about consolidation in the ownership of the Internet 

backbone, as we examine this? What does it mean for XO, and 

what should be done about it? 

Mr. GRIVNER. Yes, I am concerned. Right now, XO deals with 

what’s called a peering relationship with most carriers, tier-one 

peering; meaning the traffic that you import and export, you basically don’t pay for, if everything is, you know, fundamentally equal. 

When you combine these four companies together, you’ve now 

created a tier-one-plus, in which companies like XO and others will 

have to pay for that traffic which up until this point has been part 

of the Internet, part of building the Internet, and part of the process. Yes, I am concerned. 

Mr. GOODLATTE. What would you do about it? 

Mr. GRIVNER. Well, what I would do about it is not let the mergers go through. But barring that, I think there have to be some 

very specific restrictions placed on that traffic, so that pay-forpeering does not occur. 

Mr. GOODLATTE. Mr. Moir, are you aware of the effects of the 

proposed mergers on the ownership of the Internet backbone? And 

is there any reason to be concerned? 

Mr. MOIR. We are still looking at those issues right now; particularly as, you know, they have regional aspects and broader aspects. 

But at the moment now, we still don’t have a position. 

Mr. GOODLATTE. Let me ask Mr. Kellogg or Mr. Verveer if they 

want to respond to either of those two questions. 

Mr. KELLOGG. My understanding in this area is somewhat limited, but it is that AT&T and MCI both have national backbone 

66

networks. SBC and Verizon do not. So I do not see how the merger 

would lead to more concentration in the critical national backbones. 

Mr. GOODLATTE. Mr. Verveer? 

Mr. VERVEER. I wouldn’t pretend to any great expertise in this 

area. My impression, generally, is that this is an area that has become increasingly competitive over the last several years, and is a 

competitive environment today. 

Mr. GOODLATTE. Very good. Mr. Kellogg, Voice over Internet Protocol, it does require a pipe into one’s home or business; does it 

not? 

Mr. KELLOGG. That’s correct. 

Mr. GOODLATTE. And what is USTA’s position regarding this? 

Are some of your members trying to deny non-discriminatory access? Or does USTA have a position on that? 

Mr. KELLOGG. My understanding is that USTA’s position is that 

Voice over Internet Protocol is a tremendously important service; 

that it’s, you know, going to dramatically influence the future of 

telecom; and that it ought to be allowed to develop in a competitive 

environment. 

Mr. GOODLATTE. Does ‘‘competitive’’ mean non-discriminatory access? 

Mr. KELLOGG. Well, it’s not clear to me that there’s a problem 

there that needs addressing at this point. You say there has to be 

a pipe into the home. Of course, there’s the cable pipe which twothirds of customers currently use; and only one-third uses DSL. If 

people feel that there’s restrictions on their access to broadband 

services, they are free to switch to the other carrier. Plus, next-generation wireless is going to be incredibly important in terms of 

broadband access and VoIP services. 

Mr. GOODLATTE. Okay. Anybody else—Mr. Moir, Mr. Grivner—

want to respond to that? 

Mr. MOIR. VoIP as we presently hear it, is a phenomenon that’s 

evolved from basically IP protocol voice traffic, which has been 

going on on a packetized basis within the large user community 

for—what, decades? 

Mr. GOODLATTE. Yes. 

Mr. MOIR. And the issue we’re evolving to now is, you know, 

you’re going to be able to get access to multiple VoIP suppliers 

from a residential standpoint. From a business standpoint, we get 

the pipe; albeit, we don’t have choice for 95 percent of our locations. 

But you get the pipe. You run the packetized data out—in this 

case, VoIP data; which is really voice packets. And then the issue 

is, does it terminate on another VoIP network to the customer 

prem, or does it terminate on the switch network and then get subject to something more on the lines of traditional access charges? 

So some of those issues are still to be flushed out. 

Mr. GRIVNER. Yes, full VoIP deployment, full effect of it, does depend on that broadband pipe, that last-mile access to the customer; 

whether it be fiber provided by an RBOC, or by XO. Or a municipality that decides to get into the cable business would be another 

option. 

Mr. GOODLATTE. Do you think that that type of technology is receiving fair treatment from those who own the pipes? 

67

Mr. GRIVNER. Receiving fair treatment from those who own the 

pipes? Well, if the CEO of Vonage were here, he’d probably say ‘‘No.’’ Matter of fact, I know he would say ‘‘No.’’ I was with him yesterday. 

Mr. GOODLATTE. Very good. Mr. Kellogg, do you want to respond 

to any of that, or you’re—please. 

Mr. CANNON. We actually need to be out of this room in time, 

at about just about 20 after. So since Ms. Jackson Lee has joined 

us, we’ll stretch that a little bit. But if you could give us a quick 

answer that would be—— Mr. GOODLATTE. That’s all I’d ask, Mr. Chairman. 

Mr. KELLOGG. My understanding is that Vonage has access now. 

They are adding customers at a rapid rate. And I don’t see a problem that needs any sort of regulatory solution. 

Mr. GOODLATTE. Very good. Thank you, Mr. Chairman. 

Mr. CANNON. The gentleman yields back. Without objection, all 

Members will have 5 days to submit questions for the panel, and 

then we’ll ask you gentlemen—I have several questions that I’ll 

submit, and others may as well. 

And with that, Ms. Jackson Lee, did you have questions? 

Ms. JACKSON LEE. I do, Mr. Chairman. 

Mr. CANNON. The gentlelady is recognized. I think we can only 

go 4 minutes, because we just need to vacate. Will that be acceptable? 

Ms. JACKSON LEE. Thank you, Mr. Chairman. 

Mr. CANNON. The gentlelady is recognized for 4 minutes. 

Ms. JACKSON LEE. This hearing in the midst of the debate on the 

floor dealing with the energy policy legislation in the backdrop— and I know you gentlemen can help me with a proposed merger not 

in your industry at this point, but American West and another airline, making it competitive with Southwest—sets the tone, I think, 

for the importance of the question of competitiveness and quality 

of life for consumers. 

And it looks like this is deja vu, to a certain extent. We were in 

this room some—maybe less than 10 years ago, trying to pick up 

where the AT&T antitrust case left off. We thought we were finding a solution and balance, particularly in the telecom industry, 

and finding some balance—I see it says 9 years—with respect to 

the importance of competition; yet, of course, the recognition of industry inclination, if I might. 

I just want to pose—and you might jump in, since time is 4 minutes, but I think it’ll be enough time—to Mr. Verveer and Carl 

Grivner, and then others who may wish to join in. I think, Mr. 

Verveer, you said that the most significant aspects of today’s telecommunications marketplace are consolidation and convergence. 

And when you say significant aspects—and you may have gone 

over this, and I apologize for not being in the room—significant in 

a positive sense, or a negative sense? But how do we then, based 

on that premise, or those two premise—two aspects of your statement, ensure both innovation and price reduction; that those are 

not driven out of the marketplace? 

And I say that in the context of the fact, do mergers actually enhance the benefits to the consumers? Do we see any price decrease 

in large mergers because of, say efficiency? Mr. Grivner, if you 

68

would respond to what you’ve probably been responding to all 

afternoon, that mergers—as a result of mergers, competition is certain to diminish in markets throughout the country? Might you reemphasize which market will be most affected by a merger resulting in the greatest concentration? 

And I think if any of the other two panelists would like to add 

to that, I would appreciate it. 

I hope, Mr. Chairman, that we can have more than one hearing, 

where Members are in and out, and particularly having to get out 

of a room at a certain time. But this is a very important question. 

Mr. CANNON. I can assure the gentlelady that we’re going to have 

other hearings on this. 

Ms. JACKSON LEE. I understand that from the Chairman of the 

full Committee. I thank you very much. But in any event, I yield 

to the gentleman. 

Mr. GRIVNER. Okay. Congresswoman, I share your concerns 

about the consolidation and what it could potentially do to innovation and pricing. I’ve pointed out several times this afternoon that 

the technology that we’ve spoken about in the market today—DSL 

technology, Voice over IP—they’ve been available for many years. 

But it has not been until smaller companies that have been innovative in the marketplace have deployed those that the bigger companies have accepted those and have moved in that direction. Consequently, you could argue we’re years behind where we could be, 

from an overall deployment of these newer technology perspective. 

And I also think, from a price perspective, we need to be concerned as we move forward when there’s only two players in the 

business market, where in the business market these two mergers 

will have 80 percent of the wireline business. We need to be concerned about what that means for business customers—small, medium, and large business customers—from a price perspective. 

Ms. JACKSON LEE. What do you consider two players? 

Mr. GRIVNER. Two players, being Verizon and the other player 

being SBC, will comprise 80 percent of the business wireline market. 

Ms. JACKSON LEE. Mister—Verveer. Sorry. 

Mr. VERVEER. The thrust of my testimony I think really is that 

we are in the midst of a major transformation in terms of the telecommunications sector; as big a transformation, probably, as we 

saw 25 or 30 years ago. We really do not know how this is going 

to come out, from the standpoint of consumers. And the only way 

we can really be confident that the progressiveness we’ve seen in 

the industry over the last 25 or 30 years will continue is if we have 

a competitive environment. So it is awfully important to have the 

tools available to try to maintain a competitive environment in this 

sector. 

Mr. CANNON. Thank you. 

Ms. JACKSON LEE. And I thank the Chairman. I know that if the 

other gentlemen wish to answer in writing, I’d welcome that. 

Mr. Chairman, I just want to say this final word to you. You indicated that this Committee—the full Committee Chairman and 

Ranking Member, I know, will insist on further meetings. I simply 

ask the rhetorical question: How can we continue to do good, and 

not make enemies? I hope that we can damper down the intensity 

69

and the animosity, and find a way to review these questions in the 

thoroughness that we desire for the good of the American people. 

I yield back. 

Mr. CANNON. Yes. Well, I thank the gentlelady. Let me just reiterate, this is my personal—matter of personal interest. And anything the Committee does would be subject to the Chair and the 

Ranking Member on the decision to go forward, but I’m fairly sure 

that there is an interest in doing that. 

Either of the questions that we’ll get to by way of written questions relate really to the FCC and how it does its rulemaking and 

the decision process; which are important for the Committee that 

I chair, which is the Commercial and Administrative Law Subcommittee of the full Committee. 

I want to thank the panel. This has been very, very insightful 

and a very helpful hearing. 

And I remind those of you who are here that we do have another 

hearing starting almost immediately. So unless you’re here for the 

next hearing, we’d appreciate it if you’d move out of here very 

quickly. And with that, this hearing is adjourned. 

[Whereupon, at 4:25 p.m., the Committee was adjourned.] 

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MATERIAL SUBMITTED FOR THE HEARING RECORD

RESPONSE TO QUESTIONS SUBMITTED BY REPRESENTATIVE CHRIS CANNON TO CARL J. 

GRIVNER, CEO, XO COMMUNICATIONS, INC., ON BEHALF OF COMPTEL/ALTS ALLIANCE AND ASSOCIATION FOR COMPETITIVE TELECOMMUNICATIONS


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1The Committee had not received a response to these questions at the time this hearing was 

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QUESTIONS SUBMITTED BY REPRESENTATIVE CHRIS CANNON TO BRIAN R. MOIR, ATTORNEY-AT-LAW, ON BEHALF OF E-COMMERCE AND TELECOMMUNICATIONS ASSOCIATION (ETUG) 1


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RESPONSE TO QUESTIONS SUBMITTED BY REPRESENTATIVE CHRIS CANNON TO MICHAEL KELLOGG, PARTNER, KELLOGG, HUBER, HANSEN, TODD, EVANS & FIGEL, 

PLLC, ON BEHALF OF THE UNITED STATES TELECOM ASSOCIATION


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RESPONSE TO QUESTIONS SUBMITTED BY REPRESENTATIVE CHRIS CANNON TO

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