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 STATEMENT  OF  COMMISSIONERS  MICHAEL  J.  COPPS  AND  JONATHAN  S.  ADELSTEIN 
 DISSENTING  IN  PART,  APPROVING  IN  PART 
 Re:  BellSouth  Telecommunications,  Inc.  Request  for  Declaratory  Ruling  that  State  Commissions  May  Not  Regulate  Broadband  Internet  Access  Services  by 
 Requiring  BellSouth  to  Provide  Wholesale  or  Retail  Broadband  Services  to  Competitive  LEC  UNE  Voice  Customers  (WC  Docket  No.  03-  251)  (FCC  05-  78) 


 In  this  decision,  the  Commission  unwisely  flashes  the  green  light  for  broadband  tying  arrangements.  Because  we  believe  this  is  an  area  where  the  Commission  should  proceed  with  caution,  we 
 cannot  support  the  outcome. 
 A  tying  arrangement  occurs  when  a  seller  conditions  the  availability  of  one  product  on  the  buyer’s  purchase  of  a  second  product.  Here,  the  incumbent  carrier  refused  to  sell  DSL  service  to  end-users 
 who  elected  not  to  purchase  voice  service  from  the  same  carrier.  Recognizing  that  this  practice  could  limit  consumer  choice  and  reduce  competition,  Florida,  Kentucky,  Louisiana  and  Georgia  chose  to 
 do  something  about  it.  Each  state  sought  to  put  an  end  to  tying  practices  that  restricted  the  availability  of  broadband  service  to  customers  who  also  purchased  analog  voice  service. 


 The  majority  responds  to  these  state  efforts  with  the  heavy  hammer  of  preemption.  They  bypass  analysis  of  tying  practices  under  the  unjust  or  unreasonable  practice  standard  in  Section  201.  Instead, 
 they  base  their  action  on  Section  251(  d)(  3),  which  expressly  preserves  state  access  regulations,  provided  that  they  are  not  inconsistent  with  federal  requirements  and  do  not  “substantially  prevent”  implementation 
 of  the  Commission’s  own  rules.  The  majority  reads  too  much  into  these  provisions.  The  actions  taken  by  Florida,  Kentucky,  Louisiana  and  Georgia  do  not  flat-  out  conflict  with  federal  rules;  they  arguably 
 complement  them.  And  as  a  result  of  this  decision,  state  authority  to  craft  local  rules  to  promote  competition  is  unnecessarily  constrained. 


 Beyond  this  slap  to  federal-  state  relations  is  another  ominous  precedent  for  consumers.  If  it  is  permissible  to  deny  consumers  DSL  if  they  do  not  also  order  analog  voice  service,  what  stops  a  carrier 
 from  denying  broadband  service  to  an  end-  user  who  has  cut  the  cord  and  uses  only  a  wireless  phone?  What  prevents  a  carrier  from  refusing  to  provide  DSL  service  to  a  savvy  consumer  who  wants  stand-  alone 
 broadband  only  for  VoIP?  Regrettably,  these  broader  issues  go  virtually  unexamined.  They  are  relegated  to  a  single  paragraph  Notice  of  Inquiry,  appended  to  the  back  of  this  decision  apparently  as  an 
 afterthought.  Because  we  believe  that  this  situation  requires  more  analysis  and  greater  consideration  of  the  impact  on  consumers,  we  dissent. 


 We  join  today’s  decision,  however,  in  one  key  aspect.  We  support  the  effort  in  this  action  to  reinforce  non-  discriminatory  number  porting,  including  between  wireline  and  cable  carriers.  Congress 
 was  clear  that  number  portability  is  a  basic  duty  of  local  exchange  carriers.  Because  this  decision  accurately  clarifies  this  requirement,  we  approve  in  part. 
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