*Pages 1--2 from Microsoft Word - 26771* Federal Communications Commission FCC 03- 80 SEPARATE STATEMENT OF COMMISSIONER JONATHAN S. ADELSTEIN Re: Application by SBC Communications, Inc., Nevada Bell Telephone Company, and Southwestern Bell Communications Services, Inc., for Authorization to Provide In-Region, InterLATA Services in Nevada I approve the Commission’s Order to grant section 271 relief to SBC Communications, Inc. to provide long distance service in Nevada. I would like to commend the Nevada Public Utilities Commission and the FCC’s Wireline Competition Bureau for their excellent and diligent work in bringing this item to the Commission. Today, the Commission grants section 271 relief to SBC Communications, Inc., to provide long distance services in the state of Nevada based on our finding that SBC satisfies “Track A” of Section 271. Track A requires that one or more competing providers collectively serve business and residential subscribers using their own telephone exchange service facilities. I am somewhat concerned about relying on the existence of broadband PCS competition in demonstrating the presence of competition under Track A. However, our precedent, in the BellSouth Second Louisiana Order, clearly states that broadband PCS satisfies the definition of a telephone exchange service for purposes of Section 271( c)( 1)( A). And the Commission specifically found that the most persuasive evidence of competition between PCS and wireline local telephony is evidence that customers are actually subscribing to PCS in lieu of wireline service. SBC has established such a connection in this proceeding. To disrupt this precedent and find that SBC has not satisfied the Track A analysis with the presence of wireline PCS competition would be to effectively create a “Catch 22” for the company. Under Commission precedent, the company would not be able to satisfy Track B, either. The Commission in the BellSouth South Carolina Order found that Track B may only be satisfied if a State Commission certifies that “the only provider or providers making such a request have (i) failed to negotiate in good faith as required by section 252, or (ii) violated the terms of an agreement approved under Section 252 by the provider’s failure to comply, within a reasonable period of time, with the implementation schedule contained in such agreement.” The State Commission has not so certified. Simply stated, this Commission has clearly established precedent under both Track A and Track B. The RBOCs have relied on that precedent in filing for their Section 271 approval. In this particular case, if we were to overturn the Track A precedent and determine that SBC must use Track B, we would be holding SBC hostage to the business plans of its competitors. Such a result would penalize the consumers in Nevada. Our decisions are meant to ensure that consumers have access to telecommunications services at reasonable rates. Our section 271 analysis is ultimately about bringing choice to consumers. If we were to eschew our Track A analysis precedent, the citizens of Nevada might not have the opportunity for greater choice among long distance providers for a very long time. This 1 Federal Communications Commission FCC 03- 80 means they might not have access to lower rates, new calling plans or packages to which many others now have access. On this basis, given that possibility, I support relying on the existence of broadband PCS service to demonstrate the Track A compliance, consistent with the Commission’s precedent. 2