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 Federal  Communications  Commission  FCC  03-  81 
 SEPARATE  STATEMENT  OF  COMMISSIONER  JONATHAN  S.  ADELSTEIN 
 Re:  Application  by  Qwest  Communications  International  Inc.  for  Authorization  To  Provide  In-  Region,  InterLATA  Services  in  New  Mexico,  Oregon  and  South  Dakota 


 Today  we  grant  Qwest  the  authority  to  provide  in-  region,  interLATA  service  originating  in  New  Mexico,  Oregon  and  South  Dakota.  I  approve  this  Order  and  commend  the  New  Mexico  Public  Regulation 
 Commission,  Oregon  Public  Utility  Commission  and  the  South  Dakota  Public  Utilities  Commission  for  their  hard  work.  I  would  also  like  to  commend  the  Wireline  Competition  Bureau  for  all  of  its  efforts. 


 It  is  great  that  consumers  in  these  states,  including  my  home  state  of  South  Dakota,  will  have  greater  choices  among  long  distance  providers.  They  can  also  benefit  from  new  calling  plans,  packages  and  lower 
 rates.  Since  the  advent  of  competition  in  the  long  distance  market  we  have  seen  rates  decline  and  new  and  creative  packaging  of  services.  I  hope  to  see  comparable  results  in  these  states  for  which  we  are  granting 
 Section  271  authority. 
 As  with  SBC  in  the  Nevada  271  Order,  we  grant  section  271  relief  to  Qwest  Communications,  Inc.,  to  provide  long  distance  services  in  New  Mexico  based  on  our  finding  that  Qwest  has  satisfied  “Track  A”  of 
 Section  271.  Although  I  approve  the  grant  of  Section  271  authority  to  Qwest  in  New  Mexico,  I  have  the  same  concerns  here  that  I  did  in  the  SBC  Nevada  Order. 


 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.  Qwest  has  established  such  a  connection  in  this  proceeding. 


 To  disrupt  this  precedent  and  find  that  Qwest  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  Qwest  must  use  Track  B,  we  would  be  holding  Qwest  hostage  to  the  business  plans  of  its  competitors. 


 Such  a  result  would  penalize  the  consumers  in  New  Mexico.  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  New  Mexico  might  not  have  the  opportunity  for  greater  choice  among  long  distance  providers 
 for  a  very  long  time.  This  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. 
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