CONCURRING STATEMENT OF
COMMISSIONER MEREDITH A. BAKER
Re: Petition of Qwest Corporation for Forbearance Under 47 U.S.C. § 160(c) in the Phoenix, 
Arizona Metropolitan Statistical Area, WC Docket No. 09-135, Memorandum Opinion and Order 
I applaud the Commission for its efforts in this Order to implement a more rigorous, predictable 
and consistent analysis of forbearance petitions such as this, and in particular for attempting to develop a 
data-driven approach that relies on hard evidence of competition in the market.  Despite my support for 
developing a data-driven approach, I concur today because I have concerns about how this analytic 
framework might function in practice going forward.
As a general matter, I have continuing concerns that requiring too much infrastructure sharing 
among competitors at TELRIC rates skews incentives to invest for both incumbents and new entrants.  I 
strongly believe that facilities-based competition best serves consumers under most market conditions and 
that we should intervene in the market only when there is persuasive evidence of market failure—and 
even then as narrowly as possible to address the failure without distorting market incentives.  In the 
Telecommunications Act of 1996, Congress mandated that the Commission shall forbear when the three-
prong test laid out in the statute is satisfied.  Although I agree with the conclusions for the petition before 
us, I hope that the application of the statutory test using the analytic framework in this Order will not 
become an insurmountable hurdle for petitioners, which in turn would undermine the will of Congress to 
relieve regulatory burdens where competition can better regulate the market.  I fear that if the bar is too 
high, findings of market failure will be overinclusive, the regulatory response will not be narrow enough, 
and infrastructure investment will suffer.
Moreover, although this Order finds that Qwest did not carry its burden of showing that mobile 
wireless constrains wireline prices, a recent study found that nearly one in four American homes have 
“cut the cord.”  In future forbearance proceedings, I hope the Commission will take the opportunity to 
consider in more depth the competitive effect of mobile wireless competition in the rapidly changing 
marketplace.  Finally, my support for this analytic framework rests in part on our acknowledgment that 
other analyses may be appropriate under the statute in contexts other than forbearance from section 251 
unbundling for legacy facilities—most notably in examining the market for broadband services.  
For these reasons, I respectfully concur and as we gain experience with this new approach, I hope 
the Commission will be willing to modify it—with appropriate administrative procedure—if this test 
proves to be impossible to satisfy or conditions otherwise warrant.  I thank the staff of the Wireline 
Competition Bureau for their thoughtful work on this item.  I am also pleased that we are requesting 
additional comment on applying this analytic framework in similar forbearance proceedings.  I hope that 
my concerns will be addressed in the record as we move forward.