DISSENTING STATEMENT OF
COMMISSIONER AJIT PAI
Re: Technology Transitions, GN Docket No. 13-5, Policies and Rules Governing Retirement of 
Copper Loops by Incumbent Local Exchange Carriers, RM-11358, Special Access for Price Cap 
Local Exchange Carriers, WC Docket No. 05-25, AT&T Corporation Petition for Rulemaking to 
Reform Regulation of Incumbent Local Exchange Carrier Rates for Interstate Special Access 
Services, RM-10593.
The IP Transition represents opportunity for all Americans.  Fiber is the fastest, most reliable way 
to transport data, whether across a city or around the world.  Fiber networks transmit data at the speed of 
light and fail at only one-eighth the rate of copper networks.  Next Generation 911, telemedicine, and 
distance learning will all be delivered over IP networks.  This means that the most resilient emergency 
communications, the highest-quality medical images, and the best educational conversations are within 
our reach.  The all-IP future brings with it exactly the high-quality, high-speed technologies and services 
that consumers are demanding.
The private sector knows this, which is why the 4,462 broadband operators across the United 
States have embraced it.  Packet switching has usurped circuit switching.  Carriers are pushing fiber 
further into their networks and upgrading from DSL to IP-based technologies like carrier-grade Ethernet.  
Mobile companies are vying to improve upon LTE’s baseline for greater speed and resiliency while 
satellite providers are offering high-speed broadband to the most rural parts of our nation.  Cable 
operators are upgrading to DOCSIS version 3.1, and IEEE has standardized the next-generation protocol 
for Wi-Fi (802.11ac).  Together, these developments promise 1 Gbps throughput for millions of 
consumers.
So why is the FCC dead set on slowing it down?
It appears that Chicken Little rules the roost.  As I warned nine months ago when we commenced 
this proceeding, lobbyists are claiming that the sky will fall if fresh fiber replaces aging twisted pairs of 
copper. (Ironically, these are the same lobbyists who lambaste bottlenecks in the broadband marketplace, 
lecture us that “broadband” means fiber-delivered 25 Mbps connectivity, and lament wireline transactions 
that they believe will delay fiber deployment.)  Corporate interests have told us these new services 
threaten their business models.  Companies are seeking to force their competitors to keep spending money 
on networks that those competitors no longer want to maintain.  Why?  So that these companies can 
continue to use their competitors’ networks!  To state the argument is to reveal its absurdity.  But today 
the FCC has put the interests of these corporate middle-men over the welfare of consumers.
I respectfully dissent for several reasons.
First, by dragging out the copper retirement process, the FCC is adopting “regulations that deter 
rather than promote fiber deployment.”
1
  The Order tacks three months of delay onto the copper 
retirement process,
2
slowing down the speed of fiber deployment.  And the Order tells companies to 
spend more capital maintaining the legacy copper plant,
3
even when fiber can cure any failures of that 
                                                     
1
Ensuring Customer Premises Equipment Backup Power for Continuity of Communications et al., PS Docket No. 
14-174, GN Docket No. 13-5, RM-11358, WC Docket No. 05-25, RM-10593, Notice of Proposed Rulemaking and 
Declaratory Ruling, 29 FCC Rcd 14968, 15038 (2014) (Tech Transitions NPRM) (Statement of Commissioner Ajit 
Pai).
2
Order at para. 29.  Ironically, the Order does so even though it admits that interconnecting companies “rarely” 
request such a waiting period before copper is retired under our existing rules.  Order at para. 28.
3
Order at para. 90.
2fading infrastructure.  It’s an iron law of economics that you can’t spend a dollar twice, so diverting 
scarce capital from new networks to old will only slow next-generation deployment and deepen the digital 
divide.
Second, the FCC is adopting “rules that frustrate rather than further the IP Transition”
4
by again 
expanding the scope of section 214 of the Communications Act.  For those not steeped in telecom arcana, 
section 214 is the mother-may-I provision of Title II.  It was adopted by Congress to guard against loss of 
service during wartime, such as “abandonment of existing telegraph offices” or “discontinuance of service 
to military establishments and industries.”
5
  Traditionally, the Commission has interpreted the section to 
apply only when a carrier discontinues service to a particular community entirely, such as by the 
“severance . . . of physical connection,” the “dismantling . . . of any trunk line,” or the “closing . . . of a 
telephone exchange.”
6
But not anymore.  The Commission now requires carriers to seek permission before discontinuing 
almost “every [network] feature no matter how little-used or old-fashioned.”
7
  That means the FCC gets 
to micromanage each and every change that a carrier makes to its network.  The Commission now says 
carriers must get permission before discontinuing “wholesale voice inputs” even if the carrier continues to 
serve that same community with the same service.
8
  That means the FCC gets to flyspeck each and every 
                                                     
4
Tech Transitions NPRM, 29 FCC Rcd at 15038 (Statement of Commissioner Ajit Pai).
5
Western Union Telegraph Company Petition for Order to Require the Bell System to Continue to Provide 
Group/Supergroup Facilities, Memorandum Opinion and Order, 74 FCC.2d 293, 295 n.4 (1979).
6
See 47 C.F.R. § 63.60(b)(1), (4), (5).
7
Tech Transitions NPRM, 29 FCC Rcd at 15018, para. 118.  Most curious is the Order’s insistence that “tariffs 
cannot define the scope of a ‘service’ under section 214(a) given that there are circumstances in which the 
Commission has forborne from tariffing requirements but in which section 214 obligations remain intact.”  Order at 
para. 189.  For one, for the first 62 years of section 214’s existence, the Communications Act required that every 
common carrier service be tariffed, MCI Telecommunications Corp. v. AT&T Co., 512 U.S. 218 (1994).  By 
definition, then, the only services that could be discontinued were tariffed services.  Absent some indication that 
Congress intended the creation of section-10 forbearance authority in 1996 to alter the scope of section 214, the 
existence of detariffed services today is irrelevant to the question of how section 214 applies to still-tariffed services.  
For another, the Communications Act specifically prevents a common carrier from “extend[ing] to any person any 
privileges” with respect to a tariffed service except as specified in the tariff.  Communications Act § 203(c).  This 
venerable principle, known as the filed rate doctrine, means that no person (and consequently no community) can 
enforce or rely on any aspect of a tariffed service that isn’t described in the tariff.  See AT&T Co. v. Central Office 
Telephone, Inc., 524 U.S. 214, 221–24 (1998) (explaining that the doctrine applies not just to rates because rates 
“have meaning only when one knows the services to which they are attached”).  Yet the Order concludes that 
common carriers not only may “extend” such untariffed “privileges,” they must do so until the FCC says otherwise.  
I cannot comprehend how the Order squares this circle.
8
Order at para. 117.  The Order shreds pages of precedent to reach this result.  For example, hornbook law says a 
carrier needs FCC approval only to discontinue interstate service.  See Communications Act § 2(b) (“[N]othing in 
this Act shall be construed to apply or to give the Commission jurisdiction with respect to . . . intrastate 
communication service by wire or radio of any carrier . . . .”); Louisiana Public Service Commission v. FCC, 476 
U.S. 355 (1986).  And yet the Order asserts section 214 authority over commercial platform services that offer 
wholesale local exchange service (an intrastate service).  As another example, the Commission has held that the 
concern of section 214 is “the ultimate impact on the community served rather than on any technical or financial 
impact on the carrier[-customer] itself.”  Graphnet, Inc. v. AT&T Corp., 17 FCC Rcd 1131, 1140, para. 29 (2002) 
(emphasis added).  And yet the Order reverses course, focusing on “financial and technical factors affecting the 
carrier-customer” such as whether the carrier-customer can “readily obtain a replacement input that would allow it 
to maintain its existing service without reduction or impairment” and do so “without material difficulty or costs.”  
Order at para. 117.  Such disregard for our past decisions suggests that future Commissions may not respect the 
radical departures blessed today.
3change a carrier makes to its business model—all in the name of enhancing competition in the already 
competitive voice market.  And the Commission now leverages its discontinuance authority to get a 
foothold in the Ethernet market,
9
exporting its legacy economic regulations into an all-IP world.  That 
means the FCC will intervene in the enterprise broadband services market even though our staff still have 
not analyzed the extensive data we just finished collecting about whether that market needs regulation at 
all.
In sum, the Order opts for command-and-control regulation instead of permissionless innovation.  
That deprives entrepreneurs of the freedom to take a risk and try something new—even if it trenches on 
the turf of regulatory incumbents.  Could Uber have revolutionized transportation if it had to ask the City 
of New York permission before innovating?  No.  Could Airbnb have gotten the sharing economy off the 
ground if the government had to approve every rental?  Of course not.
And heavy-handed regulation is also unnecessary.  The American people aren’t asking 
Washington to “slow rather than expedite the availability of high-speed broadband throughout our 
nation.”
10
  They demand more competition, faster deployment, and better service.  They ask when their 
homes are going to be connected with fiber, not why the FCC isn’t doing more to promote copper.  From 
Nebraska to Alaska, California to Texas, Americans have told me that they want 21
st
century 
connectivity—not 20
th
century technology and 19
th
century regulation.
11
Instead of pausing the IP Transition, we should be embracing it.  That means getting rid of the 
tariffs, the cost studies, the hidden subsidies, and the other economic regulations that were the foundation 
of the old regulatory system.  That means ending the Computer Inquiry requirements designed to protect 
narrowband, legacy industries, which have no place in an era of ubiquitous broadband and mobile apps.  
That means reopening the spectrum pipeline to get more of the airwaves out of the federal government’s 
hands and into the commercial marketplace.  That means rejuvenating the 5 GHz proceeding so that 
wireless Internet service providers and consumers nationwide can put another 195 MHz spectrum to 
unlicensed use.  That means adopting a targeted stand-alone broadband plan so that rate-of-return carriers 
can offer rural residents the same options found in cities.  And that means refocusing our efforts on 
eliminating regulatory barriers to infrastructure investment—whether it’s preempting municipal moratoria 
or lowering pole attachment rates—so that companies can deploy the small cells, the towers, the new 
fiber, and the new services that consumers are demanding.
I can’t summarize my views any better than by quoting FCC leadership from this past September: 
It’s important to understand the technical limitations of the twisted-pair copper 
plant on which telephone companies have relied for DSL connections.  
Traditional DSL is just not keeping up, and new DSL technologies, while 
helpful, are limited to short distances.  Increasing copper’s capacity may help in 
clustered business parks and downtown buildings, but the signal’s rapid 
degradation over distance may limit the improvement’s practical applicability to 
change the overall competitive landscape. . . . We welcome, and we must 
encourage, the development of new technologies that can bring greater 
                                                     
9
Order at para. 132.  This use of discontinuance authority necessarily creates a tilted playing field for next-
generation services since the Commission cannot apply these new rules to competitive local exchange carriers, to 
cable companies, to wireless operators, to satellite providers, or to any other company that did not at some point 
offer legacy services.  Of course, the Order implicitly recognizes this, and perhaps letting the FCC pick winners and 
losers is the whole point.
10
Tech Transitions NPRM, 29 FCC Rcd at 15038 (Statement of Commissioner Ajit Pai).
11
Cf. Communications Act § 7(a) (“It shall be the policy of the United States to encourage the provision of new 
technologies and services to the public.”).
4competition and more choices to consumers.  In the end, at this moment, only 
fiber gives the local cable company a competitive run for its money.
12
I couldn’t agree more.  But because the majority today has instead decided to turn its back on the 
future, I respectfully dissent.
                                                     
12
Prepared Remarks of Chairman Tom Wheeler, “The Facts and Future of Broadband Competition” (Sept. 4, 2014), 
available at http://go.usa.gov/3sgR4.