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 DISSENTING  STATEMENT  OF  COMMISSIONER  JONATHAN  S.  ADELSTEIN 
 Re:  Unbundled  Access  to  Network  Elements,  WC  Docket  No.  04-  313;  Review  of  Section  251  Unbundling  Obligations  of  Incumbent  Local  Exchange  Carriers,  CC 
 Docket  No.  01-  338. 
 For  all  involved,  this  Order  continues  the  “one  step  forward,  two  steps  back”  saga  of  the  local  competition  provisions  of  the  Telecommunications  Act  of  1996.  After  eight 
 years  of  divisive  litigation  and  a  summer  of  promises,  the  Commission  adopts  an  approach  that  prolongs  the  regulatory  uncertainty  for  incumbents,  competitors,  and 
 consumers  alike.  Indeed,  the  only  things  that  are  certain  here  are  that  consumer  prices  will  go  up  and  that  the  telecommunications  industry  will  fight  the  same  old  battles  come 
 the  new  year. 
 Through  this  Order,  the  Commission  adopts  an  ambiguous  approach  that  is  perhaps  designed  to  give  a  little  to  everyone  but  that  ultimately  grants  stability  to  none. 
 The  Order  leaves  unclear  which  elements  are  available  to  competitors  and  at  what  prices  they  will  be  available.  It  is  difficult  to  imagine  how  either  competitors  or  incumbents 
 will  plan  for  the  future,  develop  business  plans,  or  seek  investor  support  with  this  foggy  vision  into  the  long-  term  framework.  If  savvy  industry  players  will  be  left  wondering 
 about  the  rules  of  the  game,  consumers  surely  will  have  little  guidance  about  how  to  choose  among  the  ever-  dwindling  list  of  providers. 


 In  response  to  this  ambiguity,  this  Order  promises  Commission  action  before  the  end  of  this  year.  Promises  of  swift  action  are  laudable,  but,  rather  than  deferring  the 
 difficult  decisions,  we  should  be  working  right  now  to  develop  permanent  rules  that  provide  certainty  for  all  involved.  At  the  very  minimum,  it  is  unfair  to  incumbents, 
 competitors,  and  consumers  to  “hide  the  ball”  with  the  ambiguous  approach  adopted  here. 
 If  regulatory  certainty  is  elusive  in  this  Order,  what  is  clear  is  that  prices  for  consumers  are  likely  to  rise.  Rather  than  respond  to  the  D.  C.  Circuit’s  decision  on  a 
 tailored  and  responsive  basis,  this  Order  calls  for  higher  rates  for  consumers  and  competitors  without  any  linkage  to  the  requirements  of  the  statute.  For  new  customers  in 
 particular  these  rates  could  rise  dramatically  without  any  consideration  of  “impairment,”  the  statutory  touchstone  when  deciding  which  elements  should  be  available  at  cost-  based 
 prices. 
 Though  I  cannot  join  this  Order,  I  have  appreciated  recent  dialogues  with  my  colleagues.  I  was  disappointed  that  we  could  not  take  limited  action  to  provide 
 meaningful  protection  for  carriers  serving  small  business  customers,  but  remain  open  to  reconsideration  of  these  issues.  A  more  daunting  but  equally  pressing  challenge  now  is 
 to  move  forward  as  expeditiously  as  possible  with  the  final  rulemaking  process.  Our  chief  goal  now  should  be  to  develop  permanent  rules  for  all  UNEs  as  soon  as  possible,  so 
 that  the  American  public  and  the  telecom  industry  will  understand  what  the  choices  and  price  tag  will  be.  The  Act  and  the  American  consumer  deserve  no  less. 
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