V. CONCLUSION

Section 271 of the 1996 Act purports to provide a roadmap for BOC entry into the interLATA marketplace, but the routes are not all well-marked. Nevertheless, a careful reading of the statutory text and accompanying legislative history, informed by a knowledge of the fundamental goals of the Act, clarifies many ambiguities and, thus, facilitates construction of most of the central provisions of section 271 -- the interplay between Tracks A and B, the requirements for satisfying Track A, the basics and significance of checklist compliance. In this way, one can develop a sense of what a BOC must show, at a minimum, to make a plausible case for interLATA entry.

Although a thorough understanding of these threshold questions is important to implementation of section 271, the assessment of a BOC's interLATA application must go far beyond whether, for example, Track A applies and, if so, whether it has been satisfied. The overarching goal of the 1996 Act, after all, is to promote competition in all telecommunications markets. Consequently, a BOC's application ultimately must be judged by its effects on competition in the local and long distance markets implicated by that request.

Whereas some degree of local competition is, under most circumstances, a statutory prerequisite to interLATA entry, Congress determinedly rejected any requirement that such competition be either robust or pervasive. On the other hand, the legislators also understood that the 1996 Act would be a failure if local competition only reached the modest levels necessary to support a BOC interLATA petition. Congress, moreover, conceived of section 271 as a mechanism for involving the BOCs in the quest for increased competition in the coming years. Thus, in implementing that provision, the Commission should develop an approach conducive to the growth in local competition from the limited amount required to satisfy Track A to the healthy levels desired in the future.

As the Commission well-understands, one such approach would be for the Commission's review of BOC interLATA applications to be forward-looking in nature -- where the agency's attention is focused less on what has happened before an application's filing and more on what will happen in the event that request is granted. The fundamental objective is to ensure that the conditions are in place so that the local competition on which a BOC application is predicated can proliferate in the future. There must be evidence, for example, that legal barriers to entry have been removed and that State authorities are committed to fostering competition. New entrants must be able to secure the facilities and services they need from incumbents on just, reasonable, and nondiscriminatory terms, in sufficient quantities, and in a timely fashion. Customers must be able switch from carrier to carrier without significant service interruptions or billing problems. Standards and mechanisms should be in place to gauge BOC compliance with their service obligations and swift and certain penalties must be available in the event that they fail to do so. Perhaps most importantly, while the BOCs need not be enthusiastic participants in this process, they should give evidence that they are aware of their obligations and are prepared to fulfilled them promptly and conscientiously.

A forward-looking assessment of BOC applications will require the Commission to make difficult factual and predictive judgments, as the agency itself has recognized. Accordingly, the Commission should not deliberate alone. The statute, of course, requires the Commission to consult with the Department of Justice and give substantial weight to the Department's recommendations. The FCC should also confer with the State commission connected with each BOC application. As former FCC Chairman Reed Hundt once pointed out "each state's knowledge of local conditions and experience in resolving factual disputes enables it to play a vital role" in the section 271 process.⁽³⁸⁶⁾ Thus, where a State commission conducts a meticulous and disinterested investigation of a BOC application, the Commission should accord substantial weight to the State agency's factual findings and due respect to its policy recommendations. Federal and State regulators should also work together to develop pricing principles that are consistent with the procompetitive purposes of the 1996 Act and that accommodate the State's jurisdictional authority as defined by the Eighth Circuit.

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386. Chairman Reed Hundt, Address to the Communications Committee of the National Association of Regulatory Utility Commissioners Feb. 24, 1997).