B. The "Public Interest" Requirement

Section 271(c)(3) of the 1996 Act states that the Commission may not grant a BOC's interLATA application unless the Commission determines that "the requested authorization is consistent with the public interest, convenience, and necessity."⁽²⁵⁴⁾ This "public interest" requirement was taken from the Senate bill, but its inclusion in S. 652 was the subject of extensive and contentious debate on the Senate floor.⁽²⁵⁵⁾ Senator McCain offered an amendment to strip the public interest standard from the bill, portraying it as "an ill-defined, arbitrary standard which implies almost limitless policymaking authority to the FCC."⁽²⁵⁶⁾ He also contended that its inclusion in S. 652 would "invite[] virtually endless litigation over whether [BOC interLATA] entry is in the public interest" and would tempt existing interLATA service providers "to use regulatory processes to protect their market."⁽²⁵⁷⁾

After spirited debate, the Senate defeated the McCain amendment by a vote of 68-31. Most members appeared to persuaded by Senator Pressler and others that the public interest test was not a license for the Commission to commit mischief, but had been construed enough times by enough courts over the preceding six decades to give the phrase "public convenience, interest, and necessity" a specificity that the words themselves may not convey.⁽²⁵⁸⁾

In fact, courts have ruled the public interest standard "not to be too indefinite for fair enforcement,"⁽²⁵⁹⁾ but should be applied "so as to secure for the public the broad aims of the Communications Act [of 1934]."⁽²⁶⁰⁾ One statement of those aims can be found in section 1 of the 1934 Act: "to make available, so far as possible, to all the people of the United States a rapid, efficient, Nation-wide, and world-wide wire and radio communication service with adequate facilities at reasonable charges."⁽²⁶¹⁾ More immediately relevant to an understanding of section 271(d)(3) is the statement of purpose in the preamble to the 1996 Act: "[t]o promote competition and reduce regulation in order to secure lower prices and higher quality services for American telecommunications consumers and encourage the rapid deployment of new telecommunications technologies."⁽²⁶²⁾ Thus, although the Commission's public interest examination is wide-ranging, it is not unconstrained. Further, although competitive issues are at the forefront of that examination, there are other values to be considered and safeguarded.

1. Promoting Competition

Because Congress designated the advancement of competition as one of the main objectives of the 1996 Act,⁽²⁶³⁾ the public interest review of a BOC's application to provide in-region, interLATA services must consider the potential effects of BOC entry on competition. That, of course, prompts the question of which markets should be the focus of that competitive analysis. The weight of the evidence indicates that Congress was concerned principally with the market for local telecommunications services, rather than that for interLATA services.

During the House debate on H.R. 1555, Representative Fields, a sponsor of that bill, stated that "central to competition to the consumer in this legislation is opening the local telephone network to competition."⁽²⁶⁴⁾ It is not surprising, therefore, that Congress decided to condition BOC entry into new markets -- including interLATA services -- on the release of their stranglehold over local exchange telephone services.⁽²⁶⁵⁾ In part, the linking of local exchange competition and BOC interLATA entry was intended to prevent the BOCs from leveraging their local monopolies to impede competition or to gain an unfair advantage in other markets.⁽²⁶⁶⁾ Just as importantly, however, Congress viewed and used interLATA entry as a "carrot" to induce the BOCs to become active participants in the effort to foster local competition. As one Senator put it: "Complete elimination of barriers to competition will occur only if the [BOCs] have positive incentives to cooperate with the introduction of meaningful competition."⁽²⁶⁷⁾

Thus, if section 271 is a door for the BOCs between the local and the interLATA markets, Congress intended that door to swing inward -- so that competing firms could enter the local exchange market before the BOCs pass through to exploit market opportunities on the other side. Accordingly, in conducting its public interest analysis of a BOC's application to provide interLATA services, the Commission should focus on the status of competition in the local exchange market and, in particular, on the BOCs' continuing incentives after interLATA entry to provide meaningful opportunities for competitive entry in the local market.⁽²⁶⁸⁾

Although Congress put local competition issues at the center of the public interest examination, it gave little guidance as to the substantive standards that the Commission should use in making its determination -- with two notable exceptions. First, the Commission may not construe the public interest standard to require that a minimum level of local competition exists before a BOC's interLATA application may be granted.⁽²⁶⁹⁾ As noted above, at least three separate attempts to establish a market share test for local competition were defeated during the congressional debates on telecommunications reform legislation.⁽²⁷⁰⁾ One cannot assume that Congress, having repeatedly and explicitly rejected efforts to add such a test to the pending legislation, subsequently decided sub silentio to include it within the public interest test.⁽²⁷¹⁾

Second, Congress did not, as BellSouth suggests, make compliance with the competitive checklist "the exclusive test for the sufficiency of local competition under section 271."⁽²⁷²⁾ To the contrary, the Senate debate reveals that many Members had strong concerns about the adequacy of checklist compliance as an indicator of local competition. Senator Kerrey expressed his reservations when he rose in opposition to the McCain amendment: "This checklist, such as it is, I do not know if the checklist is going to work."⁽²⁷³⁾ Other Senators aired similar qualms during the lengthy discussion of amendments by Senators Thurmond and Dorgan to give DOJ a larger role in reviewing BOC interLATA applications. Senator Thurmond saw a need for greater DOJ involvement because he was "not confident that this checklist will be adequate to take the place of thorough antitrust analysis," noting further that "the checklist does not require that anyone actually compete with the local exchange monopoly."⁽²⁷⁴⁾ Senator Leahy expressed similar doubts: "[W]hat if [the checklist] does not work? What if the checklist is not long enough to ensure that the local monopoly power of the [BOCs] is broken and competition can develop."⁽²⁷⁵⁾

A floor statement by Senator Gorton indicates that the Senate Commerce Committee, from which S. 652 emerged, not only was aware of the limitations of the checklist but took corrective measures:

[W]hat [S.652] does is to set up a set of 14 reasonably objective conditions that must be met by the [BOCs] to open up their local exchange before they could get into the long distance business and provide competition and, one hopes, lower prices.

The committee was not absolutely satisfied . . . that the simple mechanical meeting of those 14 circumstances would, under all circumstances, be sufficient to open up the local exchange.

So it added the public interest convenience and necessity condition, requiring the [Commission] . . . the Government entity and agency with expertise in this field, to determine in the broadest possible sense that the requested authorization was consistent with the public interest, convenience, and necessity.⁽²⁷⁶⁾

Senator Gorton also explicitly linked Member's concerns about the adequacy of the checklist with the defeat of the McCain amendment:

Just last week, . . . in balancing this bill, we turned down an amendment that would have stricken [the public interest standard]. We did not feel, a majority of Members did not feel, any more than the majority in the committee felt, that we could absolutely under all circumstances rely on the 14 categories.⁽²⁷⁷⁾

Thus, on the crucial question whether local competition is sufficient to warrant grant of a BOC's interLATA application, the Senate meant for the Commission's public interest analysis to supplement checklist compliance.⁽²⁷⁸⁾ In the words of Senator Stevens, "[w]e want to make sure that the checklist is met at a minimum and the public interest provision comes in at that point."⁽²⁷⁹⁾ There is nothing in the conference report or in the congressional debate on the conference agreement to suggest that Congress rejected the Senate's view of the respective roles of the checklist and the public interest test in the local competition analysis.

If checklist compliance alone is not sufficient to support a finding that there is enough local competition to permit BOC interLATA entry, what more is required? Since Congress rejected a quantitative test -- however meager -- for sufficient local competition, the Commission must make a qualitative assessment. The Commission's task of course, is to determine whether the local exchange market is truly open to competition,⁽²⁸⁰⁾ or whether the BOCs' historical monopoly in that market has been broken.⁽²⁸¹⁾ Put another way, the Commission must find evidence that the door to the local exchange market place swings inward freely and easily for new entrants. Only if it finds such evidence can the Commission conclude that the fledgling local competition that has appeared to date is not a "false spring," but a harbinger of extensive and lasting market changes to come.

a. Elimination of barriers to entry

One essential feature of an open market is an absence of legal barriers to entry by new competitors. The need to remove such barriers is especially important in local exchange markets because "[f]or decades, U.S. telecommunications policy has relied on heavily regulated monopolies to provide communications services to businesses and consumers."⁽²⁸²⁾ Although the Commission and many State regulators have moved in recent years to reduce or to remove legal barriers to competitive entry in local and other telecommunications markets, that process is far from complete.

Realizing the persistence of such impediments to expanded competition, Congress in the 1996 Act specifically outlawed any "State or local statute or regulation, or other State or local legal requirement, [that] may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service."⁽²⁸³⁾ That provision is not self-enforcing, however. Consequently, even plainly anticompetitive State and local restrictions can remain in force until they are preempted by the Commission or, in some instances, overturned by a federal district court.⁽²⁸⁴⁾ Furthermore, the 1996 Act permits States to impose, on a competitively neutral basis, "requirements necessary to preserve and advance universal service, protect the public safety and welfare, ensure the continued quality of telecommunications services, and safeguard the rights of consumers."⁽²⁸⁵⁾ In short, although a central purpose of the 1996 Act is to promote competition in all telecommunications markets, the Act did not sweep away existing legal barriers to competitive entry.

A number of States have moved aggressively to implement local competition. Indeed, some State initiatives predated passage of the 1996 Act by several years. Available evidence indicates, however, that in other States, old barriers persist and new barriers continually appear. Some State laws still prohibit the provision of telecommunications by any company other than the incumbent local exchange carrier, without that carrier's consent.⁽²⁸⁶⁾ In 1995, the Texas State Legislature enacted a telecommunications statute that severely limits the ways in which some firms may offer competitive local telecommunications services in the State.⁽²⁸⁷⁾ Earlier this year, Arkansas enacted telecommunications legislation that bars the Arkansas Public Service Commission from prescribing access and interconnection obligations for local exchange carriers in excess of those set forth in the 1996 Act and the Commission's implementing regulations.⁽²⁸⁸⁾ This despite the fact that the 1996 Act explicitly authorized State commissions to adopt additional access and interconnection obligations that do not conflict with Federal requirements.⁽²⁸⁹⁾ Finally, there are increasing complaints that local governments are limiting access by new entrants to public rights-of-way or imposing unreasonable and discriminatory franchise obligations on those firms.⁽²⁹⁰⁾

Recognizing these facts, the Commission has decided to include with its public interest review of a BOC's application to offer interLATA services a comprehensive and independent analysis of the legal and regulatory environment in the State in which the BOC intends to operate.⁽²⁹¹⁾ Through that assessment, the Commission should satisfy itself that the State's laws and regulations afford new entrants maximum flexibility to pursue and to exploit market opportunities whenever and wherever they find them.⁽²⁹²⁾ It should also ensure that where States have imposed requirements designed to preserve universal service, to protect consumers or public safety, or to maintain service quality, such requirements are competitively neutral in intent and in effect and are no broader than necessary to achieve their stated ends.

b. "Commercially useful" availability of all items in the competitive checklist

Removing legal barriers to entry is just one step towards fully opening the local exchange market to competition. There is also a need to address the economic and technical impediments that can deter or hinder new entrants from offering alternative local telecommunications services. That, of course, is the function of the access, interconnection, and resale provisions in sections 251 and 252 of the 1996 Act and the competitive checklist in section 271(c)(2). The checklist identifies "those things that a telecommunications carrier would need from a [BOC] in order to provide a service such as telephone exchange service or exchange access service in competition with the [BOC]."⁽²⁹³⁾ As such, the checklist "provides the formula for removing the monopoly powers of local telephone exchange providers to allow real competition in the local loop."⁽²⁹⁴⁾

Section 271(c)(2)(B) requires the BOCs to "provide" or to "offer" each checklist items to other telecommunications carriers. There has been much debate and disagreement about when a BOC must "provide" and when it may "offer" the checklist items. As noted above, a BOC generally must provide (or supply) all of the checklist items to carriers requesting access and interconnection, if they request them.⁽²⁹⁵⁾ In the event that a BOC does not receive an interconnection request, it need only offer (or hold out) each checklist item for sale to prospective customers.

Whichever verb applies, however, the Commission has ruled that two basic requirements must be met before it will deem a BOC to be "providing" a particular checklist item. First, a BOC must "actually furnish[] the item [to competitors] at rates and on terms and conditions that comply with the Act, or where no competitor is actually using the item, . . . a BOC must have a concrete and specific legal obligation to furnish the item upon request. . . ."⁽²⁹⁶⁾ Second, a BOC "must demonstrate that it is presently ready to furnish each checklist item in the quantities that competitors may reasonably demand and at an acceptable level of quality.⁽²⁹⁷⁾

The following standards should be employed, at a minimum, to determine whether a BOC is fulfilling those conditions:⁽²⁹⁸⁾

• The item must be available for immediate ordering, and the competing carrier can receive it in sufficient quantities. Quantities should generally be deemed sufficient if they enable the purchaser to satisfy current and reasonably foreseeable demand;

• All necessary testing of the checklist item must have been completed. Where testing has been conducted solely by the BOC, its test results should be subject to review by an independent entity;

• Regulatory authorities must be substantially certain that the checklist item will function as expected in a commercial setting;

• The BOC's provision of the item must be at lease equal in quality to the service that it provides itself;

• Checklist items must be made available at rates that satisfy the pricing standards of section 252(d).

The Commission has also recognized that the competitors' ability to provide alternative local services via interconnection, UNEs, and resale will be "significantly impaired" if they do not have access to LECs' "operations support systems" (OSS).⁽²⁹⁹⁾ Accordingly, the Commission has classified OSS as a "network element" that must be provided to competitors under section 251(c)(3).⁽³⁰⁰⁾ It has also mandated that LECs offer competitors access to OSS functions "under the same terms and conditions that they provide these [functions] to themselves and their customers"⁽³⁰¹⁾ and in a way that "would provide an efficient competitor with a meaningful opportunity to compete."⁽³⁰²⁾

To determine whether a BOC's provision of OSS functions satisfies its checklist obligation to afford nondiscriminatory access to network elements "in accordance with the requirements of section[] 251(c)(3),"⁽³⁰³⁾ the Commission has put a finer point on the general obligations just referred to. Specifically, it will conduct a two-step inquiry:

First, the Commission must determine whether the BOC has deployed the necessary systems and personnel to provide sufficient access to each of the necessary OSS functions and whether the BOC is adequately assisting competing carriers to understand how to implement and use all of the OSS functions available to them. Second, the Commission must determine whether the OSS functions that the BOC has deployed are operationally ready, as a practical matter.⁽³⁰⁴⁾

To pass through the first stage of this evaluation, a BOC must satisfy a series of very specific requirements:

• It must give competitors electronic access to OSS functions that the BOC itself accesses electronically, although the BOC may offer manual access as an alternative method of access in some instances.⁽³⁰⁵⁾

• The BOC must provide competitors enough information so that they may design or modify their OSS in a way that will allow them to interact seamlessly with the BOC's system.⁽³⁰⁶⁾

• The BOC must disclose to competitors sufficient information (including information relating to ordering codes and internal business rules) so that they can format, process, and transmit service requests that will flow into and through the BOC's system "as quickly and efficiently as possible."⁽³⁰⁷⁾

In the second stage of its evaluation, the Commission will consider how well a BOC is meeting its access obligations with respect to OSS. The central question, in the Commission's view, is current performance and future readiness -- "whether the OSS functions provided by the BOC to competing carriers are actually handling current demand and will be able to handle reasonably foreseeable demand volumes."⁽³⁰⁸⁾ The Commission correctly concluded that the most reliable measure of a BOC's performance is commercial-usage -- evidence gathered from a BOC's actual provision of OSS functions to itself or to competitors.⁽³⁰⁹⁾ It has therefore required, for example, that where a competitor requests an OSS function that a BOC currently employs in its retail operations, "the BOC must provide access to competing carriers that is equal to the level that the BOC provides to itself, its customers or its affiliates, in terms of quality, accuracy and timeliness."⁽³¹⁰⁾ For those OSS functions without retail analogues, such as ordering and provision of UNEs,⁽³¹¹⁾ the Commission should require BOCs to establish specific performance measures and standards to make certain that BOC provisioning of those functions accords with their checklist obligations.⁽³¹²⁾

c. Ensuring continuing compliance with the competitive checklist

Although the Commission must be able to determine whether a BOC is complying with the competitive checklist at the time it files its section 271 application, the BOC's future behavior is arguably more important to the goal of fostering meaningful local competition. The market-opening potential of the competitive checklist will be fully realized only if the BOCs' compliance is a continuing phenomenon, rather than a temporary course of conduct embarked upon to qualify them to provide interLATA services. One way to ensure continued compliance would be to require that each of the BOC's access and interconnection agreements contain specific performance standards that can be used to track the quality of the service that the BOCs provide their competitor/customers over time.⁽³¹³⁾

Ameritech has asserted that its interconnection agreements in Michigan "contain specific performance benchmarks and standards that ensure that all checklist items are available to competing carriers on a nondiscriminatory basis and at parity with what Ameritech provides to its end users, its affiliates and any other competing carrier."⁽³¹⁴⁾ Those benchmarks and standards, which in most instances have been approved by the Michigan Public Service Commission, allegedly measure Ameritech's performance in critical areas such as service provisioning, service reliability, and service maintenance.⁽³¹⁵⁾ Ameritech then issues monthly reports that purportedly enable each of its competitor/customers "to compare Ameritech's performance for that carrier with the specified benchmarks and with the performance that Ameritech provides to other carriers and to itself."⁽³¹⁶⁾

If Ameritech has described its practices accurately, they could provide a useful model for the sorts of performance standards that should be included in each interconnection agreement and that the Commission should insist upon as evidence of BOC compliance with the competitive checklist.⁽³¹⁷⁾ Requiring that all access and interconnection agreements contain effective and functional performance standards would not in any way extend the terms of the checklist, in violation of section 271(d)(4). As noted above, the checklist identifies the things that a BOC must provide to permit another carrier to furnish a competing service.⁽³¹⁸⁾ A performance standard is not a "thing" to be provided, but rather a mechanism for assessing the manner in which a checklist item is provided.

The first two elements of the competitive checklist, moreover, require the BOCs to furnish competitors with interconnection and UNEs in accordance with sections 251(c)(2) and 251(c)(3), respectively.⁽³¹⁹⁾ The latter provisions mandate, among other things, that the BOCs must furnish interconnection and network elements on just, reasonable, and nondiscriminatory terms and conditions.⁽³²⁰⁾ And the Commission has concluded that performance standards "provide[] a mechanism by which to gauge a BOC's present compliance with its obligation to provide access and interconnection to new entrants in a nondiscriminatory manner."⁽³²¹⁾

The BOCs will be more likely to adhere to their checklist obligations and to satisfy their performance standards if the penalties for violations of those standards and obligations are swift and certain.⁽³²²⁾ To this end, BOC interconnection agreements should contain provisions for prompt resolution of complaints by competitor/customers (for example, binding arbitration). Alternatively, regulatory agencies could establish expedited processes for handling such complaints.⁽³²³⁾ Whichever procedures are employed to identify violations, interconnection agreements should generally provide for automatic penalties (including credits and liquidated damages) in the event that a violation occurs. As the Commission has pointed out, "[t]he absence of such enforcement mechanisms could significantly delay the development of local exchange competition by forcing new entrants to engage in protracted and contentious legal proceedings to enforce their contractual and statutory rights to obtain necessary inputs from the [BOC]."⁽³²⁴⁾

d. Commitment to competition

In the 1996 Act, Congress both established the goal of promoting competition in all telecommunications markets and provided the blueprint for a regulatory structure that will move the country toward that end. Conscientious and forward-thinking action by Federal and State regulators will help accelerate the rate at which competition grows. The goal cannot be reached, however, unless members of the industry work cooperatively and in good faith to make the regulatory structure fashioned by Congress function as intended in the marketplace.⁽³²⁵⁾ As the dominant firms in what is now the least competitive telecommunications market, the BOCs and other local exchange carriers are crucial to the success of this final implementing stage of the 1996 Act.

Recognizing that fact, the Commission, in determining whether grant of a BOC's interLATA application would serve the public interest, wisely intends to assess that BOC's commitment to promoting competition, particularly within its local exchange market.⁽³²⁶⁾ Relevant questions in this regard might include: How has the BOC conducted itself in negotiations with prospective competitor and in arbitrations before State commissions? Has it, like GTE, attempted at every turn to minimize its market opening obligations under the Act or has it been receptive to additional access and interconnection requests?⁽³²⁷⁾ Has the BOC worked with prospective competitors to resolve technical and operational problems expeditiously and in a mutually-acceptable manner? Although this line of inquiry is necessarily qualitative and impressionistic, it is essential nonetheless. In the end, a strong BOC commitment to the goals of the 1996 Act is the best evidence that its entry into the interLATA market will not come at the expense of competition in the local exchange market.

2. Maintaining Service Quality and Protecting Telephone Subscribers

Although competition issues are at the center of the public interest analysis, some Members of Congress were concerned that competition may not always be a benevolent force. During the Senate debate on the McCain amendment (which would effectively have stripped the public interest standard from S. 652), there was more than a little discussion about the potential adverse effects of competition for some customers and some areas. Senator Hollings, an influential supporter of S. 652, spoke at some length about the uneven effects of competition and market forces and linked those concerns with the need for a public interest test.⁽³²⁸⁾ Later on, Senators Hollings, Rockefeller, Dorgan, and Snowe engaged in an extensive discussion of the detrimental effects of airline competition and deregulation on the price and availability of air service, particularly in rural areas.⁽³²⁹⁾ The fact that this conversation occurred in the context of the general debate on the McCain amendment suggest that those Senators supported a public interest test to ensure that similar concerns would be addressed during the Commission's review of BOC interLATA applications.

In the House of Representatives, the concern was the possible effects of BOC interLATA entry on the quality of local service quality. Representative Wyden addressed the issue directly: "as telephone companies enter new fields, we must ensure current customers are not discarded and left without basic phone needs. The drive to streamline and to downsize has subjected local telephone customers in my region of the country [Oregon] to poor customer service."⁽³³⁰⁾ To alleviate that concern, he successfully offered an amendment to H.R. 1555 that authorized State commissions, when they review BOC compliance with bill's competitive checklist, to "establish[] or enforc[e] other requirements of State law . . . including requiring compliance with intrastate telecommunications service quality standards or requirements."⁽³³¹⁾

Although the Wyden amendment does not appear in the 1996 Act, its absence does not mean that Congress rejected his concerns about customer service after BOC interLATA entry. Section 253(b) of the 1996 Act, for example, permits States to impose competitively neutral requirements to "ensure the continued quality of telecommunications services." Members of Congress also could have assumed that any potential adverse effects of BOC interLATA entry on service quality could be considered as part of the Commission's public interest analysis.

In fact, the Commission has consistently considered potential adverse effects on local telephone ratepayers and service quality in deciding whether a carrier's actions or a particular transaction among carriers would serve the public interest. For instance, in passing on GTE's application to acquire Telenet, an unregulated enhanced service provider, the Commission noted that "if the [GTE] telephone companies were to lend money to Telenet, the former's financial well being and, hence, its ability to operate could be affected by the health of Telenet. Thus, a bankrupt Telenet could conceivably impair the lending telephone companies' operations."⁽³³²⁾ Consequently, the Commission attached conditions to the merger designed, in part, to "to allow Telenet as a subsidiary to obtain the economically desirable benefits of a parent-subsidiary relationship while ensuring that ratepayers and competitors are protected from abuse."⁽³³³⁾

Several years later, when the Commission reviewed the public interest implications of GTE's proposed purchase of Sprint, the Commission addressed the question whether GTE could finance Sprint's growth "without adversely impacting [GTE's] ability to reasonably maintain and, if necessary, expand its present local telephone network."⁽³³⁴⁾ The Commission also acknowledged concerns that "if needed capital for local telephone operations were diverted to finance the acquisition [of Sprint] . . . the quality of [GTE's] local service would invariably suffer."⁽³³⁵⁾ In the end, it required GTE "to operate [Sprint] separately from its local exchange operations, thereby helping to assure that funds infused into [Sprint] will not be at the expense of the local telephone companies."⁽³³⁶⁾

When the Commission considered AT&T's application to implement the Bell System divestiture, the Common Carrier Bureau directed AT&T to answer a series of questions "on the impact of the divestiture upon ratepayers in terms of rates and quality of local and toll service."⁽³³⁷⁾ In responding to AT&T's objections to the scope of the Commission's public interest review, the Commission noted that "[i]n determining whether the acquisition of a carrier's facilities or a transfer is in the public interest the Commission has considered a broad range of factors," including "the impact on the ratepayers of the carriers involved" and "whether services would continue to be available to the public in a satisfactory manner."⁽³³⁸⁾ Although the Commission eventually concluded that "any service problems that may arise from the divestiture can be handled adequately by the concerted efforts of all carriers," it nonetheless conditioned its grant of AT&T's application on a commitment by AT&T and the BOCs' to file periodic service reports.⁽³³⁹⁾

In short, the public interest standard gives the Commission ample authority to consider and, if necessary, to rectify potential harms to local service quality and local ratepayers resulting from the BOC's provision of interLATA services.⁽³⁴⁰⁾ The legislative history discussed above suggests that Congress wanted the Commission to conduct just such an inquiry. Furthermore, to the extent that State commissions are concerned about BOC interLATA entry on local service, section 253(b) of the 1996 Act would seem to authorize them to condition their certification of a BOC's compliance with the competitive checklist on the BOC's acceptance of reasonable and competitively neutral service standards.

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254. 47 U.S.C. § 271(c)(3)(C). Senator Hollings, a prominent supporter of the 1996 Act and the ranking minority member of the Senate Commerce Committee, stated that "[t]he public interest test is fundamental to my support for the legislation." Senate Report, supra note 218, at 68 (1995) (additional views of Sen. Hollings).

255. The Conference Report and the February 1 congressional debates on the final bill did not address the public interest test in any detail. The House bill did not contain any public interest language. Consequently, Congress' intentions concerning the meaning and purpose of the public interest standard must be gleaned from deliberations in the Senate.

256. 141 Cong. Rec. S7960 (daily ed. June 8, 1995) (statement of Sen. McCain). See also id. at S7970 (daily ed. June 8, 1995) (statement of Sen. Packwood) (public interest test is "amorphous" and "is anything the [FCC] wants it to be"); id. at S7966 (daily ed. June 8, 1995) (statement of Sen. Burns) ("[p]ublic interest is kind of like art or beauty: It is in the eye of the beholder"); id. at S7964 (daily ed. June 8, 1995) (statement of Sen. Craig) (FCC has "open field to interpret the public interest any way it wishes").

257. Id. at S7955 (daily ed. June 8, 1995) (statement of Sen. McCain) (quoting letter from Citizens for Sound Economy Foundation).

258. See id. at S7970 (daily ed. June 8, 1995) (statement of Sen. Kerrey) (Supreme Court understands the intent of the public interest standard "with a lot more clarity than meets the eye"); id. at S7966 (daily ed. June 8, 1995) (statement of Sen. Pressler) ("Communications Act specifies in some detail the kinds of regulatory tasks authorized or required under the act").

259. FCC v. RCA Communications, Inc., 346 U.S. 86, 90 (1953).

260. General Tel. Co. of the Southwest v. United States, 449 F.2d 846, 858 (5th Cir. 1971). Accord Western Union Division, Commercial Telegraphers' Union v. United States, 87 F. Supp. 324, 335 (D.D.C.), aff'd, 338 U.S. 864 (1949).

261. 47 U.S.C. § 151.

262. A statement of congressional purpose or declaration of policy set out in the preamble of a statute can provide a sound basis for ascertaining the goals of the statute. See Fort Worth & Denver Ry. Co. v. Goldschmidt, 518 F. Supp. 121, 124 n.3 (N.D. Tex. 1981); Globe Fur Dyeing Corp. v. United States, 467 F. Supp. 177, 180 (D.D.C. 1978). See also American Trucking Ass'n, Inc. v. Atchison, Topeka & Santa Fe Ry. Co., 387 U.S. 397, 409-10 (1967) (court looked to the preamble of the Interstate Commerce Act to determine the scope of powers that Congress intended to give to the Interstate Commerce Commission).

263. Competition was always a relevant factor in weighing the public interest under the Communications Act of 1934. See, e.g., RCA Communications, 346 U.S. at 94.

264. 141 Cong. Rec. H8284 (daily ed. Aug. 2, 1995) (statement of Rep. Fields). See also House Report, supra note 50, at 81, 1996 U.S.C.C.A.N. at 47 ("primary objective . . . of this legislation is to foster competition for local exchange and exchange access services"); 141 Cong. Rec. H8464 (daily ed. Aug. 4, 1995) (statement of Rep. Fields) ("[c]entral to opening up telecommunications to competition is to open the loop correctly and as quickly as possible"); id. at H8289 (daily ed. Aug. 2, 1995) (statement of Rep. Hastert) ("Bringing competition to the loop is the best thing that we can do for consumers").

265. See, e.g., 142 Cong. Rec. E204 (daily ed. Feb. 23, 1996) (statement of Rep. Forbes) (delivered Feb. 1, 1996) ("before any [BOC] enters the long-distance market, there must be competition in its local market"); id. at S688 (daily ed. Feb. 1, 1996) (statement of Sen. Hollings) (BOCs "should not be permitted to enter the long-distance market while they retain a monopoly over local telephone service"); id. at H1176 (daily ed. Feb. 1, 1996) (statement of Rep. Jackson-Lee) ("bill allows the [BOCs] to enter the long-distance market as soon as there is actual competition in the local market"); id. at H1169 (daily ed. Feb. 1, 1996) (statement of Rep. Markey) (bill "breaks down the last vestiges of monopoly control over local telephone service as a condition of BOC entry into new business opportunities"); id. at H1152 (daily ed. Feb. 1, 1996) (statement of Rep. Hastert) ("[f]air competition means [BOCs] will not be able to provide long-distance service in the region where they have held a monopoly until several conditions have been met to break that monopoly"); 141 Cong. Rec. H8459 (daily ed. Aug. 4, 1995) (statement of Rep. Boucher) (bill "establishes fair terms and conditions that will assure that the [BOCs] open their local telephone networks before they are permitted to enter into the long distance and equipment markets"); id. at H8458 (daily ed. Aug. 4, 1995) (statement of Rep. Bunning) ("should not allow the [BOCs] into the long distance market until there is real competition in the local business and residential markets"); id. at H8282 (daily ed. Aug. 2, 1995) (statement of Rep. Bliley) ("[o]nce the [BOCs] open the local exchange networks to competition, [they] are free to compete in the long distance and manufacturing markets"); id. at S8224 (daily ed. June 13, 1995) (statement of Sen. Hutchison) (FCC "knows when there is competition at the local level so that [BOCs] can go into long distance"); id. at S8153 (daily ed. June 12, 1995) (statement of Sen. Breaux) ("[BOCs] may provide long distance service if, first, they . . . allow long distance companies to provide local service").

The foregoing should lay to rest the canard that Congress opted for simultaneous or symmetric entry by the BOCs and IXC's into each other's markets. See SBC Oklahoma Brief, supra note 66, at 13 (quoting Implementation of the Non-Accounting Safeguards of Sections 271 and 272 of the Communications Act of 1934, as Amended, First Report and Order and Further Notice of Proposed Rulemaking, 11 FCC Rcd 21905, ¶ 8 (1996)). Both the language and legislative history indicate that, in most instances, local entry by IXCs and other competitors would precede BOC provision of interLATA services. In the words of one congressman:

It will take time for the [BOCs] to satisfy all of the conditions in the bill. This built-in delay will provide the long distance and cable companies a head start into the local exchange.

141 Cong. Rec. H8465 (daily ed. Aug. 4, 1995) (statement of Rep. Goodlatte). See also BellSouth Order, supra note 12, ¶ 9 ("Congress set up a framework that requires BOCs to demonstrate that their local markets are open to competition before they are permitted to enter the in-region long distance market") (emphasis in original).

266. See Ameritech Order, supra note 12, ¶ 388.

267. 141 Cong. Rec. S8464 (daily ed. June 15, 1995) (statement of Sen. Dorgan). See also id. at H8465 (daily ed. Aug. 4, 1995) (statement of Rep. Goodlatte) (bill's conditioning of BOC interLATA entry on the presence of local competition "is a strong incentive for [BOCs] to comply with the requirements of this legislation"); id. at H8282 (daily ed. Aug. 2, 1995) (statement of Rep. Bliley) ("key to this bill is the creation of an incentive for the current monopolies to open their markets to competition").

In its review of SBC's compliance with the competitive checklist, the Oklahoma Corporation Commission reversed the incentive structure established by the 1996 Act. It saw SBC's entry into the interLATA market as the means of increasing new competitors' incentives to enter the local exchange market. See SBC Oklahoma Reply, supra note 101, at ii (State commission found that SBC's interLATA entry "is the best way to induce potential local providers to enter the local market in Oklahoma") (emphasis in original). See also BellSouth South Carolina Brief, supra note 95, at 4 (quoting finding by the South Carolina Public Service Commission that BellSouth's interLATA entry could speed up local competition considerably and would "create real incentives for the major [long distance companies] to enter the local market rapidly").

268. In this regard, the Commission has recognized that "incumbent LECs have no economic incentive, independent of the incentives set forth in sections 271 and 274 [concerning BOC provision of electronic publishing] of the 1996 Act, to provide potential competitors with opportunities to interconnect with and make use of the incumbent LEC's network and services." Interconnection Order, 11 FCC Rcd at 15528, ¶ 55. Significantly, GTE has steadfastly opposed all efforts to foster competition in its local markets. Ameritech's Chief Executive Officer, Richard Notebaert, has offered one reason why: "'they're already in long distance,' he said. 'What's their incentive to cooperate.'" Mike Mills, "Holding the Line on Phone Rivalry; GTE Keeps Potential Competitors, Regulators' Price Guidelines at Bay," Wash. Post, Oct. 23, 1996, at C14 ("Holding the Line").

269. The Commission has recognized that fact. See Ameritech Order, supra note 12, ¶ 391 ("we do not construe the 1996 Act to require that a BOC lose a specific percentage of its market share, or that there be competitive entry in different regions, at different scales, and through different arrangements, before we would conclude that BOC entry is consistent with the public interest").

270. See supra notes 168-172 and accompanying text.

271. Few principles of statutory construction are more compelling than the proposition that Congress does not intend sub silentio to enact statutory language that it has earlier discarded in favor in other language.

Immigration and Naturalization Serv. v. Cardoza-Fonseca, 480 U.S. 421, 442-443 (1987) (quoting Nachman Corp. v. Pension Benefit Guar. Corp., 446 U.S. 359, 392-393 (1980) (Stewart, J., dissenting)). But see 141 Cong. Rec. S7964 (daily ed. June 8, 1995) (statement of Sen. Craig) (Commission "could decide that a market share test is required before [BOC] entry into long distance on the grounds that the test is in the public interest").

272. Reply Comments of BellSouth Corporation in Support of Application by Southwestern Bell for Provision of In-Region, InterLATA Services in Oklahoma at 8-9 (filed May 27, 1997) (BellSouth Oklahoma Reply). BellSouth's argument did not necessarily expire with the Senate's rejection of the McCain amendment, which would have deemed the public interest test satisfied by a BOC's compliance with the competitive checklist. See 141 Cong. Rec. S7960 (daily ed. June 8, 1995) (text of the McCain amendment). One could argue that most Senators agreed that checklist compliance resolved the competitive questions presented by a BOC interLATA application, but voted to retain the public interest standard so that the Commission could consider and resolve other, non-competition-related issues.

273. 141 Cong. Rec. S7970 (daily ed. June 8, 1995).

274. Id. at S8005 (daily ed. June 8, 1995).

275. Id. at S8141 (daily ed. June 12, 1995). See also id. at 8470 (daily ed. June 15, 1995) (statement of Sen. Feingold) ("checklist does not require that competition actually exist in local markets dominated by the [BOCs] before they are able to use their substantial market power to enter long distance markets"); id. at S8464 (daily ed. June 15, 1995) (statement of Sen. Dorgan) ("series of specified steps -- for example, the competitive check list . . . is not by itself sufficient to bring real competition to local markets"); id. at S8164-S8165 (daily ed. June 12, 1995) (statement of Sen. Kerrey) ("Does [the checklist] mean I have competitive choice at the local level? . . . Well. I don't know if the 14-point checklist gets that job done?").

276. Id. at S8165 (daily ed. June 12, 1995). Senator Gorton was not only a member of the Commerce Committee; the principal sponsor of the bill, Senator Pressler, described him as "key in moving this bill forward." Id. at S8450 (daily ed. June 15, 1995). As such, Senator Gorton's understanding of the committee's actions and the reasons therefor should be accorded weight in determining what the committee intended.

277. Id. at S8166 (daily ed. June 12, 1995).

278. The Commission has reached this same conclusion. See Ameritech Order, supra note 12, ¶¶ 389-390.

279. 141 Cong. Rec. S8321 (daily ed. June 14, 1995) (statement of Sen. Stevens). See also Senate Report, supra note 218, at 43 ("Committee intends the competitive checklist to set forth what must, at a minimum, be provided by a [BOC] . . . before the FCC may authorize the [BOC] to provide inregion interLATA services").

280. See, e.g., 142 Cong. Rec. S688 (daily ed. Feb. 1, 1996) (statement of Sen. Hollings); 141 Cong. Rec. H8282 (daily ed. Aug. 2, 1995) (statement of Rep. Bliley).

281. See 142 Cong. Rec. H1152 (daily ed. Feb. 1, 1996) (statement of Rep. Hastert).

282. House Report, supra note 50, at 47, 1996 U.S.C.C.A.N. at 11. See also id. at 50, 1996 U.S.C.C.A.N. at 13-14 (local exchange carriers "are frequently protected from competition by government barriers to entry").

283. 47 U.S.C. § 253(a).

284. Id. § 253(d). Section 253(c) preserves the rights of State and local authorities to manage public rights-of-way and to require fair and reasonable compensation from telecommunications providers that use those rights-of-way. Section 253(d) bars the Commission from hearing claims that non-Federal regulation of public rights-of-way violates section 253(a). Such claims must instead be litigated in Federal court.

285. Id. § 253(b).

286. See, e.g., Comments of the Association of Local Telecommunications Services at 11-12, Access Charge Reform, CC Docket No. 96-262 (filed Jan. 30, 1997).

287. See Texas Public Utility Regulatory Act of 1995, Vernon's Tex. Civ. Stat. art. 1446c-0, §§ 3.251, 3.2531, 3.2532 (1997). The Commission recently preempted several provisions of the Texas statute. Texas Order, supra note 251. The Commission declined to invalidate other challenged sections of the law because the Texas Public Utilities Commission had interpreted and applied them "so as not to conflict with section 253 and other provisions of the Communications Act." Id. ¶ 8.

288. Telecommunications Regulatory Reform Act of 1997, 1997 Ark. Acts 77, § 9(D), (F), (I) (TRRA97). Petitions seeking preemption of portions of the Arkansas Act are currently pending before the Commission. See MCI Telecommunications Corp., Inc.'s Petition for Declaratory Ruling Regarding Preemption of the Arkansas Telecommunications Regulatory Reform Act of 1997, CC Docket No. 97-100 (filed June 3, 1997); American Communications Services, Inc. Petition for Expedited Declaratory Ruling Preempting Arkansas Public Service Commission, CC Docket No. 97-100 (filed Mar. 25, 1997).

289. 47 U.S.C. § 251(d)(3). Editorializing against the Arkansas statute when it was being considered by the State legislature, the State's largest newspaper opined that the pending bill "could be considered environmental legislation; it seems designed to protect the [local] phone companies' revenue stream." "Hold the Phone: Why rush telecom legislation?", Arkansas Democrat-Gazette, Jan. 23, 1997, at 6B.

290. See, e.g., Comments of the Michigan Cable Telecommunications Association at 19-26, Application by Ameritech Michigan Pursuant to Section 271 of the Telecommunications Act of 1996 to Provide In-Region, InterLATA Services in Michigan, CC Docket No. 97-137 (filed June 9, 1997); Reply Comments of the Competition Policy Institute on the Application of SBC Communications to Provide InterLATA Service in Oklahoma at 9 (filed May 27, 1997) (CPI Oklahoma Reply).

291. Ameritech Order, supra note 12, ¶ 396.

292. As noted above, the Commission should assure itself that a State's pricing policies for interconnection, UNEs, and resale are compatible with the goals of the 1996 Act and consistent with the pricing principles employed by other State commissions. See text accompanying note 253 supra.

The Commission should also consider whether new entrants have a fair opportunity to qualify as "eligible telecommunications carriers," so that they can receive universal service support payments that will enable them to compete fully with incumbent carriers. See CPI Oklahoma Reply, supra note 290, at 9 ("[e]ligibility for universal service support is sometimes limited to the incumbent local telephone company"). See also TRRA97, supra note 288, § 5(B)(5), (D) (barring the Arkansas Public Service Commission from certifying multiple ETCs in non-rural areas unless it finds that the public interest will be served thereby; precluding the certification of a second ETC in areas served by a rural telephone company unless the incumbent waives its "right" to be the only ETC). In its review of a State's laws and regulations, the Commission intends to consider "whether a state has adopted policies and programs that favor the incumbent, for example, those relating to universal service." Ameritech Order, supra note 12, ¶ 396.

Of course, as the Commission points out, the best evidence of a procompetitive legal and regulatory environment is the appearance and growth of new alternative service providers. Id. ¶ 391.

293. 141 Cong. Rec. S8469 (daily ed. June 15, 1995) (statement of Sen. Pressler). The 1996 Act makes compliance with section 251's interconnection, unbundling, and resale requirements and explicit part of the competitive checklist. See 47 U.S.C. § 271(c)(2)(B)(i), (ii), (xiv).

294. 141 Cong. Rec. H8289 (daily ed. Aug. 2, 1995) (statement of Rep. Hastert). See also id. at S8469 (daily ed. June 15, 1995) (statement of Sen. Pressler) (checklist "open[s] up the local loop from a technological standpoint as section [253] opens the local loop from a legal barrier to entry standpoint").

295. See supra notes 210-227 and accompanying text.

296. Ameritech Order, supra note 12, ¶ 110 (footnotes omitted).

297. Id. (footnote omitted).

298. See "Illinois Hearing Examiner Says Ameritech Falls Short on InterLATA Requirements," Telecommunications Reports, Mar. 10, 1997, at 13.

299. Interconnection Order, 11 FCC Rcd at 15766, ¶ 522. The Commission has defined OSS to encompass "those systems and databases required for pre-ordering, ordering, provisioning, maintenance and repair, and billing." Id. at 15752, ¶ 505.

300. Id. at 15763-15768, ¶¶ 516-525. That portion of the Commission's order was upheld on appeal. Iowa Utils. Bd., 120 F.3d at 808-810.

301. Interconnection Order, 11 FCC Rcd at 15661, ¶ 316.

302. Id. at 15660, ¶ 315.

303. 47 U.S.C. § 271(c)(2)(B)(ii).

304. Ameritech Order, supra note 12, ¶ 136.

305. Id. ¶ 137. Electronic access would permit, for example, a competitor to order one or more network elements via computer-to-computer interaction with the BOC's OSS database. Under manual access, the same order would involve at least some human interaction, such as a telephone call or a facsimile transmission.

306. Id.

307. Id. "Business rules refer to the protocols that a BOC uses to ensure uniformity in the format of orders." Id. ¶ 137 n.335.

308. Id. ¶ 138.

309. Id. See also DOJ Oklahoma Evaluation, supra note 188, at 29-30 (in determining whether a BOC's OSS processes can provide the necessary functionality to competitors, most persuasive evidence is "commercial operation"). In the event that competitors freely choose not to use a particular OSS function, the Commission may allow a BOC to demonstrate operational readiness through "carrier-to-carrier testing, independent third-party testing, and internal testing, without commercial usage." Ameritech Order, supra note 12, ¶ 138. Because a BOC would have an incentive to manipulate the conduct and results of its own tests, the Commission should consider internal testing to be the least reliable of the three.

310. Ameritech Order, supra note 12, ¶ 139. The Commission has determined that "OSS functions associated with pre-ordering, ordering and provisioning for resale services, and repair and maintenance for both resale services and unbundled network elements all have retail analogues." Id. ¶ 140.

311. Id. ¶ 141.

312. A number of parties have petitioned the Commission to initiate a rulemaking to prescribe such standards. See, e.g., Letter from Larry Irving, National Telecommunications and Information Administration, to Chairman Reed Hundt (Aug. 12, 1997).

313. See Ameritech Order, supra note 12, ¶ 393 ("performance monitoring establishes a benchmark against which new entrants and regulators can measure performance over time to detect and correct any degradation of service once a BOC is authorized to enter the in-region, inter-LATA services market"). See also DOJ Oklahoma Addendum, supra note 195, at 4-6; Ameritech Michigan Brief, supra note 141, at 30-34.

314. Ameritech Michigan Brief, supra note 141, at 30.

315. Id. at 31-33.

316. Id. at 31.

317. See Evaluation of the United States Department of Justice at 39-40, Application of Ameritech Michigan Pursuant to Section 271 of the Telecommunications Act of 1996 to Provide In-Region, InterLATA Services in the State of Michigan, CC Docket No. 97-137 (filed June 25, 1997) (although the Department of Justice noted "important gaps" in Ameritech's proposed performance measures, it nonetheless "fully endorse[d] Ameritech's commitment to measuring and reporting its performance and [found] its efforts to be significant, especially because Ameritech appears to have implemented specific business policies consistent with that commitment").

318. 141 Cong. Rec. S8469 (daily ed. June 15, 1995) (statement of Sen. Pressler).

319. 47 U.S.C. § 271(c)(2)(B)(i), (ii).

320. Section 251(c)(2) adds the requirement that the interconnection provided must be "at least equal in quality to that provided by the [BOC] to itself or to any subsidiary, affiliate, or any other party to which the carrier provides interconnection." Id. § 271(c)(2)(C).

321. Ameritech Order, supra note 12, ¶ 393.

322. See id. ¶ 394 ("as part of our public interest inquiry, we would want to inquire whether the BOC has agreed to private and self-executing enforcement mechanisms that are automatically triggered by noncompliance with the applicable performance standard without resort to lengthy regulatory or judicial intervention").

323. The 1996 Act states that, unless the parties agree otherwise, the Commission must act on complaints concerning BOC failures to comply with their checklist obligations within 90 days. 47 U.S.C. § 271(d)(6)(B).

324. Ameritech Order, supra note 12, ¶ 394.

325. See id. ¶ 397 ("the success of the market opening provisions of the 1996 Act depends, to a large extent, on the cooperation of incumbent LECs, including the BOCs, with new entrants and good faith compliance by such LECs with their statutory obligations").

326. Id.

327. See Erik Olbeter, "Competition Partnership," Journal of Commerce, Sept. 11, 1997, at 8A (noting that GTE has filed court challenges against State arbitration decisions in 23 jurisdictions); "Holding the Line," supra note 268, at C14. Similarly, SBC's stated strategy for local competition is "to make our welcome mat smaller than anyone else's." Peter Burrows, "Pick of the Litter: Why SBC Is the Baby Bell To Beat," Business Week, Mar. 6, 1995, at 70. Although SBC should not be condemned for a statement that would elicit nods in most corporate headquarters, it has also taken steps to put its words into action. Thus, SBC lobbied heavily for the Texas statute that makes it more difficult for some firms to enter the local marketplace in Texas. See Mike Mills, "The Bell's Fastest Operator," Wash. Post, Jan. 6, 1998, at D4; Edmund L. Andrews, "SBC Communications chief tests deregulation's limits," Austin American-Statesman, Apr. 7, 1996, at D1. Similarly, SBC pushed for passage of the Arkansas law that limits the ability of the Arkansas Public Service Commission to adopt access and interconnection requirements beyond those prescribed by the 1996 Act and the Commission's implementing regulations. See Andrew Moreau, "Law hogties competition, phone firms say," Arkansas Democrat-Gazette, Mar. 28, 1997, at 1A. See also supra notes 286-289 and accompanying text.

328. 141 Cong. Rec. S7962-S7963 (daily ed. June 8, 1995).

329. Id. at S7973-S7974 (Sen. Hollings, Sen. Rockefeller), S7975-S7976 (Sen. Dorgan), S7978 (Sen. Snowe), S7979-S7980 (Sen. Rockefeller) (daily ed. June 8, 1995). Senator Dorgan's remarks neatly summarize that discussion:

Airline deregulation had at its roots the notion of let the marketplace decide who gets air service, at what price, and what convenience in this country.

We know what has happened with airline deregulation despite all the little statistics and charts people keep bringing to my attention. If you live in rural America and you access airline service, you have less choice and higher prices. It is a plain fact.

Id. at S7976 (daily ed. June 8, 1995).

330. Id. at H8287 (daily ed. Aug. 2, 1995).

331. See H.R. 1555, 104th Cong., 1st Sess. § 101(a) (1995) (adding new section 244(b)(1) to the Communications Act of 1934), reprinted at 141 Cong. Rec. H9980 (daily ed. Oct. 12, 1995).

332. GTE-Telenet Merger, 72 FCC 2d 111, 145, modified, 72 FCC 2d 516 (1979).

333. Id. at 135.

334. GTE Corp. & Southern Pacific Co., 94 FCC 2d 235, 244 (1983) (footnote omitted).

335. Id. at 245.

336. Id. at 248.

337. AT&T Co., 96 FCC 2d 18, 40 (1983).

338. Id. at 45 (footnotes omitted).

339. Id. at 84, 92 (condition 11).

340. The Commission could, of course, determine (as in the cases cited) that any potential problems could be addressed adequately by conditioning, rather than denying, a BOC's application.