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 STATEMENT  OF  COMMISSIONER  MICHAEL  J.  COPPS, 
 DISSENTING 
 Re:  Review  of  the  Section  251  Unbundling  Obligations  of  Incumbent  Local  Exchange  Carriers  (CC  Docket  No.  01-  338) 


 Eight  years  ago,  the  Commission  adopted  its  pick-  and-  choose  rule.  It  provided  structural  assurance  that  interconnection,  service  and  network  elements  would  be 
 available  to  all  carriers  at  nondiscriminatory  rates,  terms  and  conditions.  The  rule  was  based  on  the  strongest  statutory  reading  of  Section  252(  i).  It  was  designed  to  minimize 
 contracting  costs  and  was  grounded  in  principles  of  equal  treatment. 
 We  have  no  looming  judicial  charge  that  compels  us  to  depart  from  our  pick-  and-choose  policy.  Quite  the  contrary:  the  pick-  and-  choose  rule  was  upheld  by  the  Supreme 
 Court  five  years  ago.  The  highest  court  characterized  the  rule  as  “not  only  reasonable,”  but  also  “the  most  readily  apparent”  interpretation  of  the  statute.  This  is  strong  stuff  for  a 
 Commission  whose  policy  pronouncements  do  not  always  pass  muster  with  the  courts  of  the  land. 


 I  am  not  convinced  that  dismantling  the  pick-  and-  choose  rule  and  replacing  it  with  an  all-  or-  nothing  approach  will  usher  in  a  new  era  of  negotiation  and  unique 
 commercial  deals.  While  statements  about  enhancing  give-  and-  take  negotiation  have  intuitive  appeal,  their  logic  here  is  thin.  Trade-  off,  compromise  and  concession  are  good. 
 They  are  features  of  any  negotiation,  including  negotiation  in  a  pick-  and-  choose  environment.  But  in  the  wireline  market,  the  only  wholesaler  is  also  the  dominant  force 
 in  retail  competition.  I  know  of  no  other  industry  where  this  is  true.  It  makes  contracting  difficult.  The  hurly-  burly  and  give-  and-  take  that  go  on  in  so  many  commercial  dialogues 
 are  not  guaranteed  in  this  one.  Take-  it-  or-  leave-  it  bargaining  means  competitors  will  walk  away  without  any  wholesale  alternatives.  To  understand  this  difficulty,  look  no 
 further  than  the  lack  of  widespread  commercial  agreement  reached  during  the  months  since  the  USTA  II  decision. 


 Pulling  apart  the  fabric  that  supports  competition  will  not  speed  its  arrival.  Discarding  the  pick-  and-  choose  policy  will  increase  the  costs  of  contracting  for  smaller 
 carriers.  It  will  make  it  harder  for  them  to  compete.  The  real  losers  are  consumers—  residential  and  small  business  customers—  who  will  face  a  dwindling  set  of  choices  and 
 more  limited  competition  as  a  result.  For  these  reasons,  I  respectfully  dissent. 
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