STATEMENT OF 
COMMISSIONER AJIT PAI,
CONCURRING IN PART AND DISSENTING IN PART
Re: Ensuring Customer Premises Equipment Backup Power for Continuity of Communications, PS 
Docket No, 14-174, Technology Transitions, GN Docket No. 13-5, Policies and Rules Governing 
Retirement Of Copper Loops by Incumbent Local Exchange Carriers, RM-11358, Special Access 
for Price Cap Local Exchange Carriers, WC Docket No. 05-25, AT&T Corporation Petition for 
Rulemaking to Reform Regulation of Incumbent Local Exchange Carrier Rates for Interstate 
Special Access Services, RM-10593.
In the story of Chicken Little, an acorn falls on a young hen’s head, and she becomes convinced 
that the sky is falling.  Some in Washington have had that same reaction to the IP Transition.  They 
evidently believe that the replacement of aging twisted pairs of copper with fiber and IP-based services 
presages disaster.
But I believe we must act on concrete evidence, not hypothetical harms.  And the fact is that the 
IP Transition promises all Americans a brighter future.  Fiber provides better service quality and 
increased network capacity.  IP networks hold the promise of more effective emergency response through 
Next Generation 911, better healthcare through telemedicine, and improved educational outcomes 
through distance learning.  Judging from the 40 million residential landlines shed in the last five years, 
consumers prefer these new services because they offer more bang for fewer bucks.  Indeed, more 
residential consumers now subscribe to interconnected VoIP than plain old telephone service.
1
Given this context, I have serious reservations about today’s item.  I worry that we are well on 
our way to becoming like Ducky Lucky, Goosey Loosey, and the other characters who join in Chicken 
Little’s hysteria.  All too much ink is spilled in this item discussing every conceivable harm that might 
come with the IP Transition.  Not enough mention is made of its benefits or of ways to incentivize 
companies to upgrade their networks and roll out new services.  I am therefore concerned that the end 
result of this proceeding will be rules that frustrate rather than further the IP Transition, regulations that 
deter rather than promote fiber deployment, and requirements that slow rather than expedite the 
availability of high-speed broadband throughout our nation.
Nonetheless, some of the questions asked here are questions that must be asked—so I am glad 
that we are asking them.  I also appreciate my colleagues’ willingness to temper the harsher edges of the 
Notice and include questions I suggested.  For example, I am grateful that the item now includes my 
simple alternative to more invasive battery backup mandates: a straightforward requirement that all 
telephone companies make available at least one phone that can use commercially available batteries in 
case of power outages.
2
  Similarly, I am pleased that we ask about the costs of compliance and the 
benefits of mandates given consumer usage patterns.
3
  For instance, now that most consumers have 
mobile phones, I doubt all of them will want to pay the cost of a new carrier-installed battery backup for 
their landline.  And Commissioner O’Rielly deserves credit for leading the charge against a proposal for 
carriers to supply batteries to Walmarts and 7-Elevens in disaster-stricken areas.  For all of these reasons, 
I will vote, with some trepidation, to concur with the Notice.
But I must dissent from today’s Declaratory Ruling, which expands the scope of section 214 of 
                                                     
1
See FCC, Local Telephone Competition: Status as of December 31, 2013, at Figure 2 (Wireline Comp. Bur. Oct. 
2014) (noting 37,683,000 residential interconnected VoIP lines versus 37,572,000 residential switched access lines 
in 2013); FCC, Local Telephone Competition: Status as of December 31, 2008, at Figure 1 (Wireline Comp. Bur. 
June 2010) (noting there were 78,174,000 residential switched access lines in 2008).
2
Notice at para. 42.
3
Notice at para. 41.
2the Communications Act.  For those not steeped in telecom arcana, section 214 is the mother-may-I 
provision of Title II.  If a carrier wants to sell its lines, discontinue a legacy service that’s no longer of use 
to most consumers, or exit the business entirely, it must first ask the FCC for permission.  It isn’t a speedy 
process.  The FCC sometimes sits on these requests for months or even years.
By its very nature, Section 214 is about as close to governmental central planning as you can get 
in free-market America.  Perhaps for this reason, the FCC until today interpreted it judiciously.  For 
example, it’s been hornbook law for 35 years that “use of the Section 214 discontinuance process to 
challenge changes in rates, terms, and conditions of service would be inappropriate.”
4
  Similarly, even if a 
network change means someone “will no longer be able to use [certain] equipment”—say, a fax 
machine—that does “not present a Section 214 question.”
5
  In other words, it’s only necessary for a 
carrier to invoke the section 214 process when it seeks to discontinue entirely a particular service—not 
changes to the features of that service.
6
But the Commission now decides to require carriers to seek permission from the FCC before 
discontinuing almost “every [network] feature no matter how little-used or old-fashioned.”
7
  This abrupt 
reversal of decades-old policy is unnecessary and counterproductive.
8
  The Commission has no business 
micromanaging each and every change that a carrier makes to its network.
To get a sense of how intrusive this decision is, consider these comparisons from the application 
layer.  Imagine if Google had to seek regulatory permission to change features on Gmail or transition to 
                                                     
4
Western Union Telegraph Company Petition for Order to Require the Bell System to Continue to Provide 
Group/Supergroup Facilities, Memorandum Opinion and Order, 74 FCC.2d 293, 295, para. 6 (1979) (Western 
Union).
5
Id. at 297, para. 9.
6
Id. at 295, n.4 (noting that Congress’s main concern in passing section 214 was loss of service during wartime, 
such as “abandonment of existing telegraph offices” or “discontinuance of service to military establishments and 
industries”).  Instead, the features, terms, and conditions of service are supposed to be “established through the 
tariffing process.”  Id. at 295, para. 6.
7
Declaratory Ruling at para. 118.  This may be the test.  But it’s hard to say for sure since it’s restated several 
different ways throughout:  “The relevant task . . . is to identify the service the carrier actually provides to end users.  
In doing so, the Commission takes a functional approach that evaluates the totality of the circumstances.”  “[A]
carrier’s tariff definition . . . is important evidence.”  “Also relevant is what the ‘community or part of a community’
reasonably would view as the service provided by the carrier.”  “An important factor in this analysis is the extent to 
which the functionality traditionally has been relied upon by the community.”  “If relevant evidence indicates that 
the ‘service’ provided includes features outside of the tariff definition, the Commission must under section 214(a) 
treat those features as part of the ‘service’ for which prior approval to discontinue must be sought.”  The 
Commission “applies a functional test that takes into account the totality of the circumstances from the perspective 
of the relevant community or part of a community.”  “[N]or are we saying that section 214(a) always will be 
triggered by proposed changes to . . . prior features.”  Declaratory Ruling, passim.
8
The Declaratory Ruling asserts that the “decision here is [not] a departure from Western Union” because the 
“discussion and analysis [cited above] is specific to the carrier-to-carrier context.”  Declaratory Ruling at note 227.  
This is a rather odd charge given that all three citations offered by the ruling in that same footnote are specifically 
from the carrier-to-carrier context.  See id. (citing Graphnet, Inc. v. AT&T Corp., File No. E-94-41, Memorandum 
Opinion and Order, 17 FCC Rcd 1131 (2002) (adjudicating a dispute between two carriers); Southwestern Bell 
Telephone Company et al. Applications for Authority Pursuant to Section 214 of the Communications Act to Cease 
Providing Dark Fiber Service, File Nos. W-P-C-6670, W-P-D-364, Memorandum Opinion and Order, 8 FCC Rcd 
2589, 2597, para. 42 (1993) (discussing “carrier-to-carrier interconnection relationships”); Western Union, 74 
FCC.2d at 296, para. 7 (discussing “carrier-to-carrier service offerings”)).  And it falls flat for anyone who actually 
reads Western Union given that the language I cite discusses the “relationship between Sections 201–205 and 
Section 214(a) of the Act” generally (and applies that relationship to the facts at hand), whereas the discussion of 
“carrier-to-carrier service offerings” is “[a]nother matter.”  Compare Western Union, 74 FCC.2d at 296–97, paras. 6, 
9 & n.4, with id. at 296, para. 7.
3Google Inbox.  Or if Facebook had to beg permission before changing the layout of users’ NewsFeeds.  
Or if Twitter couldn’t make its mobile platform more user-friendly without the FCC’s say-so.  Currently, 
nobody would countenance that level of government intrusion into technology companies’ business 
decisions (although watch out if the Commission heads down the Title II path).  But that’s exactly what 
the Commission does today with respect to transmission services.
Dramatically expanding the scope of the section 214 permission-seeking process means that 
carriers will have to keep investing in legacy copper networks to support service features that may be 
used by few if any actual consumers.  This Hotel California-style regulatory approach condemns carriers 
to checking out of copper any time they like, but never being able to leave.
And ultimately, this will be very bad for the American consumer.  Every dollar wasted 
maintaining last century’s fading technology is by definition a dollar that cannot go to next-generation 
networks.  You can’t have it both ways, making carriers connect using copper but then decrying their 
failure to invest in fiber.  You can’t complain about the alleged broadband bottleneck held by one part of 
the industry when you prevent a would-be competitor from transitioning fully to IP-based networks.  All 
this means that areas with the lowest profit margins—low-income areas, rural areas, and others—must 
wait that much longer for 21
st
century service.
There’s another problem here:  We never asked the public to weigh in on this issue.  That’s not 
how we are supposed to operate.  Usually, if there’s a matter of substantial public concern, we solicit 
public comment so that all stakeholders—from consumers to carriers—have an opportunity to let us know 
what they think.  But when I asked to transform these conclusions into questions as part of today’s Notice, 
I was told that the sky was falling, that carriers might upgrade their networks without FCC permission, 
and those upgrades might affect someone somewhere.  Such hypothetical harms on the horizon are no 
reason to disregard the well-established process for getting public input.
At the end of the most common version of Chicken Little, a fox lures the title character and her 
friends into his lair and eats them.  The moral of the story, of course, is to make decisions logically and 
not to succumb to panic and hysteria.  The Commission would do well to heed that lesson as we move 
forward in this proceeding and others impacting the IP Transition.  For if we don’t, it will be the 
Commission that is standing in the way of progress that would benefit the American people.