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 SEPARATE  STATEMENT  OF  COMMISSIONER  KATHLEEN  Q.  ABERNATHY 
 Re:  Section  272(  b)(  1)  ’s  “Operate  Independently”  Requirement  for  Section  272  Affiliates;  Petition  of  SBC  for  Forbearance  from  the  Prohibition  of  Sharing 
 Operating,  Installation,  and  Maintenance  Functions  Under  Sections  53.203(  a)(  2)  and  53.203(  a)(  3)  of  the  Commission’s  Rules  and  Modification  of  Operating, 
 Installation,  and  Maintenance  Conditions  Contained  in  the  SBC/  Ameritech  Merger  Order;  Petition  of  BellSouth  Corp.  for  Forbearance  from  the  Prohibition 
 of  Sharing  Operating,  Installation,  and  Maintenance  Functions  Under  Section  53.203(  a)(  2)-(  3)  of  the  Commission’s  Rules;  Review  of  Regulatory  Requirements 
 for  Incumbent  LEC  Broadband  Telecommunications  Services,  Report  and  Order  and  Memorandum  Opinion  and  Order  (adopted  Mar.  11,  2004). 


 I  support  the  Commission’s  decision  to  eliminate  the  prohibition  on  the  sharing  of  operating,  installation,  and  maintenance  functions  by  Bell  operating  companies  and  their 
 affiliates  (the  “OI&  M  rule”).  I  believe  the  costs  of  the  OI&  M  rule  clearly  outweigh  its  benefits.  If  the  Bell  companies  are  going  compete  effectively  in  the  market  for  long-distance 
 services,  including  enterprise  broadband  services,  they  cannot  be  required  to  duplicate  functions  unnecessarily.  The  OI&  M  rule  is  not  necessary  to  prevent 
 anticompetitive  conduct  because  we  have  preserved  the  prohibition  on  joint  ownership  of  transmission  and  switching  facilities  and  also  maintained  various  non-  structural 
 safeguards.  These  safeguards  include  the  requirements  to  conduct  all  transactions  at  arm’s  length  and  to  disclose  the  details  of  such  transactions  on  the  Internet,  as  well  as 
 obligation  to  make  OI&  M  services  available  to  unaffiliated  rivals  on  a  nondiscriminatory  basis.  These  measures  are  sufficient  to  ensure  that  the  BOCs  “operate  independently” 
 from  their  long-  distance  affiliates,  as  the  statute  requires  (until  this  requirement  sunsets  pursuant  to  section  272(  f)). 


 My  only  concern  is  the  tension  between  this  Order  and  the  Commission’s  recent  decision  rejecting  a  request  for  forbearance  from  the  OI&  M  rule.  1  Today,  the 
 Commission  correctly  concludes  that  the  OI&  M  rule  is  not  compelled  by  the  language  of  section  272(  b)(  1);  we  are  free  to  abandon  it  since  other  safeguards  are  sufficient  to  ensure 
 that  a  BOC  and  its  long-  distance  affiliate  “operate  independently.”  See  Report  and  Order,  ¶  7.  Four  months  ago,  however,  the  Commission  reached  the  opposite  conclusion. 
 The  Commission  held  that  section  10(  d)  precluded  us  from  forbearing  from  the  OI&  M  rule,  on  the  theory  that  the  rule  was  a  “requirement”  of  section  271  and  that  section,  in 
 the  Commission’s  view,  has  not  yet  been  “fully  implemented”  (despite  the  fact  that  Verizon  had  already  been  granted  section  271  authority  in  each  of  its  states).  2  As  my 
 dissent  pointed  out,  since  the  OI&  M  rule  is  not  in  fact  a  “requirement”  of  section  271,  section  10(  d)  posed  no  bar  to  forbearance.  While  I  am  pleased  that  the  Commission  has 
 now  come  around  to  recognize  that  the  OI&  M  rule  was  but  one  choice  among  a  range  of 


 1  Petition  of  Verizon  for  Forbearance  from  the  Prohibition  of  Sharing  Operating,  Installation,  and 
 Maintenance  Functions  Under  Section  53.  203(  a)(  2)  of  the  Commission’s  Rules,  Memorandum  Opinion  and  Order,  18  FCC  Rcd  23525  (rel.  Nov.  4,  2003)  (OI&  M  Forbearance  Denial  Order). 


 2  OI&  M  Forbearance  Denial  Order,  18  FCC  Rcd  at  23527,  ¶  8. 
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