IN THE UNITED STATES COURT OF APPEALS
AT&T CORP., TELECOMMUNICATIONS, INC.,
CITY OF PORTLAND, et al.,
On Appeal from the United States District Court
Case No. CV 99-65 PA
BRIEF OF AMICUS CURIAE
Attorneys for Amicus Curiae
August 16, 1999
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STATEMENT OF THE IDENTITY AND INTEREST OF AMICUS
Excite@Home Corporation (“Excite @Home”) is a leading provider of broadband Internet services over the cable television infrastructure. The regulation adopted by the City of Portland and Multnomah County, Oregon  would be costly to develop, unduly burdensome to implement, and substantially undermine the company’s ability to raise the investment capital necessary to continue to provide its services.
SUMMARY OF ARGUMENT
The municipal regulations at issue in this appeal present a serious threat to the development of cable-based Internet access services. Cable operators, in conjunction with service providers such as Excite@Home, have invested billions of dollars to upgrade their facilities to provide content-enriched Internet access to consumers at attractive prices. Throughout the United States, consumers are enjoying the benefits of these efforts, although cable Internet services still serve a very small share of the market. Companies that have declined to invest in new facilities or new services now seek government assistance to obtain forced access to cable facilities and free-ride on these investments.
There is no way to implement the mandatory access requirement of the Municipal Ordinances without the local governments becoming involved in detailed, complicated regulation of cable Internet services. Excite@Home and its cable partners cooperate closely to provision and roll out services tailored to maximize the unique attributes of the cable infrastructure. Such arrangements are not possible without parallel investments, close integration between Excite@Home and its cable partners, and mutual commitments with respect to network design and engineering and customer service. This unique relationship cannot be duplicated by government mandate. Moreover, because Excite@Home does not “purchase” transport on cable systems, there is no way to impose mandatory access without developing complex rules for defining and enforcing access obligations, costing and rate structures, and technical standards. All of this is beyond the authority of local governments, which are precluded by federal law from imposing such a regime on cable operators. For these reasons, the opinion of the District Court should be reversed.
This appeal presents the question whether local cable television franchising authorities have the jurisdiction to require cable systems to provide mandatory access to any requesting Internet service provider (“ISP”). This brief is filed in support of Appellant AT&T Corporation’s challenge to the District Court’s order,  which incorrectly allowed the City of Portland and Multnomah County, Oregon to force a cable system to allow any ISP to use its facilities. Such mandatory access regulations exceed local government authority over cable systems, as set forth in various provisions of the Communications Act of 1934, as amended.  If left intact, the challenged regulations also threaten to stifle the development of broadband facilities and services in direct contradiction to the policies expressly set forth in the Telecommunications Act of 1996.  For the reasons set forth herein and in the brief of Petitioner AT&T Corp., Excite@Home respectfully urges this Court to reverse the District Court’s order and to hold that the mandatory access provisions in the Municipal Ordinances are preempted by Federal law.
I. BACKGROUND AND OVERVIEW
Excite@Home is a leading provider of broadband Internet services over the cable television infrastructure to consumers. A Silicon Valley start-up founded in 1995,  Excite@Home had approximately _______ U.S. subscribers at the end of July 1999. In the fiercely competitive Internet access market, the company is a relative fledgling compared to some longer-established providers. Excite@Home provides an innovative solution for Internet access that combines enhanced speed and connectivity with enriched content at a competitive price.
Excite@Home’s primary offering -- the “@Home” service -- allows residential cable subscribers to connect their personal computers via cable to a new high-speed Internet network that it designed, developed, and manages itself. The service allows subscribers to receive the “@Home experience,” which includes Internet service over hybrid fiber/coaxial cable at peak transmission speeds over 100 times faster than typical dial-up services, “always on” connectivity, and rich multimedia programming through a user-friendly graphical interface.
Excite@Home does not sell service directly to retail consumers. Rather, it provides its service under exclusive distribution arrangements with cable operators. Each operator sells the service to consumers, and is responsible for installing the necessary hardware in a consumer’s personal computer and for billing the consumer. Excite@Home “turns on” the service for each customer and provides online content  and connectivity to the Internet using “backbone” facilities  and caching technology  that Excite@Home has developed specially to exploit the broadband capabilities of cable systems and to avoid congestion on the public Internet. Excite@Home monitors the ongoing delivery of the service to consumers, manages consumers’ connections with the Excite@Home network and the public Internet from its Network Operations Center in Redwood City, California, and is responsible for addressing network outages and other technical problems that may arise in the delivery of the service.
The mandatory access provisions would be impossible to implement without the sort of regulatory oversight that municipalities are barred from imposing under Federal law. The delivery of the @Home service requires close cooperation between Excite@Home and its cable partners to integrate the cable network in each community with Excite@Home’s backbone network. Excite@Home, not the local cable operator, actually manages the connection between the end user and the Internet. Excite@Home does not simply purchase “transport” from a cable operator in a transaction that could be easily replicated by Internet service providers (“ISPs”) unaffiliated with the cable operator. “Unbundling” the integrated components of the @Home service and requiring cable operators to provide access to unaffiliated ISPs, as required by the Municipal Ordinances, would be entirely incompatible with the interrelated set of economic, technical, and practical commitments made by each party to the other. It was to avoid local government involvement in such complex matters that Congress preempted local governments from imposing common carrier regulations on cable systems and prohibited localities from using their cable franchising authority to require cable systems to furnish telecommunications facilities.
The mandatory access provisions in the Municipal Ordinances are also unnecessary. The @Home service provides subscribers with open access to the Internet and all of the content available on the World Wide Web. The market for Internet access services is already highly competitive, and becoming more so with each passing day.  Cable operators face competition in the deployment of broadband facilities from incumbent and competitive local telephone companies, satellite companies, and wireless carriers.  Mandatory access is not required to enhance or stimulate competition. To the contrary, it threats to undermine competition where it matters most: in the development of new, facilities-based broadband services.
II. BACKGROUND AND HISTORY OF EXCITE@HOME
Cable companies founded Excite@Home to fully exploit the broadband capabilities of the cable infrastructure for the provision of Internet access service and online content. They determined that merely “connecting” cable lines to the public Internet would not make full advantage of cable’s broadband connection to homes and businesses because the public Internet is subject to significant congestion that can delay transmissions. Excite@Home’s offering combines a unique network strategy with content and applications tailored for cable Internet subscribers. The service is made possible through close cooperation between the company and its cable partners.
Excite@Home was founded on the premise that the cable infrastructure could provide a fast, cost-effective Internet access mechanism for the highly competitive “last mile.” High speed in the last mile, however, is only possible with a network specially designed to capitalize on the potential of cable’s broadband facilities. In connection with billions of dollars of investments by cable companies to upgrade their facilities to provide high-speed broadband capability, Excite@Home has made a substantial and continuing investment in a “parallel Internet” that avoids the Internet congestion that often limits the speed of other Internet access services.
Excite@Home has entered into distribution arrangements for the @Home service with sixteen cable companies in North America whose cable systems pass approximately 57.3 million homes. For the most part, these cable companies have granted Excite@Home the exclusive right to offer high-bandwidth  residential consumer Internet services over their cable systems until June 4, 2002. The company’s ability to deliver the @Home service depends upon investment by these cable operators to upgrade their infrastructure. At present, only 25 percent of Excite@Home’s cable partners’ facilities have been upgraded so as to provide the @Home service. The successful provisioning of cable Internet services is entirely predicated upon close coordination between the cable operators and the company. Much of the Excite@Home’s investments in facilities and network design take place before the cable partners complete their plan upgrades.
The @Home experience is the product of the company’s commitment to a network strategy that is unique among providers of Internet and online services. This strategy has four principles: moving data closer to the user; end-to-end network management; “always-on” service; and scalability.
To move data closer to the user the @Home broadband network utilizes caching and replication technologies. Local caching reduces backbone network traffic, enabling the @Home broadband network to overcome a fundamental weakness of the Internet-duplicative data transfers. End-to-end network management is achieved through @Home’s proactive network quality, service and performance management systems. The @Home broadband network provides service monitoring visibility from the company’s servers (or content partners’ servers) across the backbone and all the way to the subscriber’s home.
The company’s network also takes advantage of continuous connections. Unlike switched technologies such as dial-up and Integrated Services Digital Network (“ISDN”) technologies, the @Home broadband network is “always on.” The user is always connected to the Internet as long as the computer and cable modem are on. The @Home service is designed to handle increasing numbers of subscribers without service degradation (“scalability”). Users in the same service area share high-bandwidth access, which is particularly effective for handling Internet traffic.  As subscriber penetration increases, @Home allows the cable operators multiple cost-effective alternatives to increase capacity.
To deliver high speed connections, Excite@Home operates its own private national backbone, which consists of a high-speed communications network connecting the company’s Regional Data Centers (“RDCs”) with online content providers and the Internet. These services currently operate at a speed of 45 Mbps and can be upgraded to 155 Mbps or higher. Cable system headends are connected to the RDCs using _______________.
Backbone. The backbone network developed and managed by Excite@Home is, in effect, a high-speed “parallel Internet” that connects via @Home’s routers to the Internet at multiple network access points that permit the company to exchange Internet traffic with other nationwide ISPs. 
Regional Data Centers. The RDCs act as service hubs for defined geographic regions, such as major metropolitan areas, providing key services to subscribers, managing network performance, replicating media partners’ content and applications, and providing a cost-efficient infrastructure to cache and multicast data throughout a region and to house local content and subscribers’ web pages. RDCs are interconnected with the company’s national backbone through regional networks that connect to multiple cable headend facilities.
Cable Headends. Cable system headends are connected to each RDC through a regional network. In order to move data as close to the subscriber as possible and to avoid repetitive transmission of the same data, the headends employ high-performance caching servers that store frequently accessed content locally, thereby greatly reducing the amount of data transmission (and corresponding transport costs) in higher layers of the network.
Cable Systems. The last leg of the network connection is from the headend to the consumer over the cable system. Multiple fiber optic lines carry the signal from the headend out to cable “nodes” in each neighborhood, which in turn connect through traditional coaxial cable to the home. These fiber optic nodes typically service from 300 to 2,000 homes in a relatively modern cable system. In the home, a cable modem connects to the cable television coaxial wiring and attaches to the user’s personal computer via standard Ethernet connections.  Cable modems are sold by several vendors, and the cable industry has developed standards for modem hardware and software.
Excite@Home provides end-to-end network management for all its cable partners and end users through its Network Operations Center (“NOC”) in Redwood City, California. The NOC uses advanced network management tools and systems to monitor the network infrastructure performance 24-hours-a-day, 7-days-a-week. From the NOC, the Company can manage the @Home broadband network from end-to-end, including the backbone, RDCs, regional networks, headend facilities, servers and other components of the network infrastructure to the user’s home.
The content foundation of the @Home experience is provided by the company’s @Media group, which aggregates content, sells advertising to business, and provides premium services to @Home cable Internet service subscribers. The company has specially designed its services to capitalize on high-bandwidth speeds -- with more full-motion video and high-quality audio than competing services. The @Media group works with content providers to facilitate the creation of rich multimedia broadband content and to facilitate online transactions and services for @Home subscribers.
@Media’s programming services include Real-Time News and Entertainment Services, such as continuously-updated news, sports, and finance headlines, and video clips presenting top stories, sports highlights and movie previews; Interactive Shopping; High-Speed Multiplayer Gaming; Digital Audio Services, including near-CD-quality audio on various music, talk and event channels (including jazz, rock and 24-hour sports talk); Digital Photography, through the “Making Pictures” service; and an Enhanced Search and Directory Service.
The @Media group also offers a series of technologies to assist content providers in delivering compelling multimedia premium services, including replication and co-location. Replication enables content partners to place copies of their content and applications locally on the @Home broadband network, thereby reducing the possibility of Internet bottlenecks at the interconnect points. Co-location allows content providers to co-locate their content services directly on the @Home broadband network. Current providers can then serve their content to @Home subscribers without traversing the congested Internet.
III. THE COMPLEXITY AND RISK INHERENT IN IMPLEMENTING MANDATORY ACCESS DEMONSTRATE CONCLUSIVELY THAT IT IS BEYOND THE AUTHORITY OF LOCAL GOVERNMENTS
The District Court fundamentally misunderstood or ignored the complexities inherent in the mandatory access requirements of the Municipal Ordinances.  Even a cursory analysis of what such requirements would entail demonstrates that such requirements are the very “common carrier” or “telecommunications” obligations that Federal law preempts. The relationship between Excite@Home and its cable partners cannot be replicated by regulatory fiat mandating “nondiscriminatory” access for other ISPs. Implementing an “access” requirement would require cable operators to develop a service offering – pure transport for unaffiliated ISPs – that they do not current offer and thus entail complicated, burdensome, and costly regulation. Defining and pricing “access” for third parties would necessarily involve the establishment of rates, terms, and conditions applicable to such an offering. Numerous technical issues would have to be resolved. Congress did not intend municipalities to interfere with cable services in such a manner. Not only would the imposition of such requirements violate Federal law, but it would undermine incentives for further investment in broadband infrastructure in contravention of Federal policy.
The relationship between Excite@Home and its cable partners is decidedly not like that the “carrier-user” relationship between a telephone company and an ISP that buys dialtone service from it. Excite@Home does not purchase “transport” from a cable operator and deliver the service to end users itself. Instead, cable subscribers order @Home like they would any other cable service from the operator. The cable operator has complete discretion as to the retail price of the service, and @Home receives 35 percent of the monthly subscriber fees. The relevant business model is not the common carrier “transport” analogy envisioned by local regulators and sanctioned by the District Court, but rather the relationship between an operator and any other provider of cable programming such as HBO or ESPN.
But it would not be correct to assume that 35 percent revenue split somehow represents an appropriate price for third parties to pay cable operators for access to the cable network. The relationship between cable operators and Excite@Home is highly interdependent, and the revenue split reflects not the hypothetical cost of transport but rather the investments and expertise that each side brought to the table. Excite@Home has spent hundreds of millions of dollars to design and build its backbone network and the intelligent caching that speeds transmissions between the public Internet and cable subscribers. Cable operators have a substantial equity stake in Excite@Home. As described above, Excite@Home and its cable partners have together invested in networks and other infrastructure, support capabilities, and programming in order to develop their cable Internet service.
These arrangements are not replicable by governments seeking to impose “nondiscriminatory” access obligations on cable operators. Would local governments require unaffiliated ISPs to build their own backbone networks as a precondition to gaining access to cable plant on the same terms and conditions as Excite@Home? Would they require an ISP to give up part of its ownership to a cable operator as a “cost” of obtaining access? Any other arrangements would not truly be “nondiscriminatory” in light of the interrelationships between Excite@Home and AT&T. Indeed, forcing cable companies to provide access to unaffiliated ISPs in exchange for the same revenue split would be tantamount to permitting third parties to “free ride” on the substantial investments of Excite@Home and its cable partners. Such free-riding would undeniably undercut the incentive for future investments, and complicate efforts to coordinate future service roll-outs. An ISP seeking to “plug in” to a local cable network does not supply any of the resources necessary to make cable Internet services a reality.
Nor can the imposition of forced access be justified as an effort to “preserve competition.”  First, as demonstrated in AT&T’s brief, there is no basis for the finding that cable systems are an “essential facility” for the provision of Internet access or even broadband Internet access.  The provision of cable Internet service is a expensive, risky, and complex undertaking that requires significant, complementary investments by the venturing parties. The exclusive relationship between Excite@Home and its cable partners protects and encourages the investments necessary by each party to the venture to make these services a reality. The parties’ exclusive contracts also help to allocate the risk of investing in high-speed cable infrastructure.
A cable operator that considers whether to invest millions of dollars so as to offer broadband services will want some assurance that there will be content and applications available to subscribers who purchase cable Internet services. In a market currently dominated entirely by narrowband access providers, there is little immediately available in the absence of a commitment specifically to do so. Exclusive arrangements help alleviate the high cost of development and roll-out of cable Internet services, and thereby fosters the competitive choice for consumers. Mandatory access requirements, by contrast, will impede investment and frustrate competition.
The implementation and enforcement of mandatory access provisions would necessarily entail burdensome and intrusive regulation. As a threshold matter, such a requirement would ensnare cable companies, Excite@Home, and local regulators in resolving complex technical problems. Just the diversion of scarce resources to this job would add to the cost of the service without directly benefiting consumers.
More fundamentally, the simplistic requirement of providing “access” to the “cable modem platform”  ignores the fact that cable system architecture simply does not lend itself easily to forced access. The “shared” nature of cable plant – in which every customer is capable of receiving every signal transmitted on the network, in contrast to the dedicated pathway for each user on a traditional telephone network – means that one cable customer could interfere with another customer’s connection to the Internet. There is currently no ability to allocate bandwidth to a “pool” of unaffiliated ISPs to prevent this interference. Such a capability is critical to supporting multiple ISPs on a single cable network. Without it, one ISP’s customers could overwhelm the cable network’s capacity and effectively deny service to the customers of another ISP.
To accommodate forced access, cable operators or Excite@Home would be required to devote considerable resources to managing bandwidth demand for unaffiliated ISPs or their customers as well as for users of the @Home service. Excite@Home could be placed in the untenable position of mediating bandwidth and other technical disputes among its competitors or even between its competitors and itself. Unbundled access proposals would also entail substantial implementation costs on the part of government and industry. There is no ready model for defining the technical bounds of a cable operator’s access obligations; dividing responsibilities for the provisioning of and billing for services; customer installation; access by customer service representatives to the cable plant; traffic engineering and management; dispatch and trouble-shooting; network fault isolation; network capacity expansion; and customer software updating and modification. 
While this discussion is not exhaustive, it demonstrates the complexity entailed in any mandatory access scheme. The technical issues presented by the Municipal Ordinances are closely analogous to the technical issues that the FCC and state regulators must address when they require local telephone companies to unbundle their networks for the use of competitive providers of basic telephone service.  The centrality of these matters to the implementation of the mandatory access requirement underscores the fact that the mandatory access provisions would unlawfully impose “common carrier or utility” regulation on cable systems, in violation Federal law. 
Implementation of a mandatory access policy will also entail common carrier-type regulation of the rates, terms, and conditions of access. Local regulators would have to develop a formula for allocating the costs of a cable operator’s transport capacity between video and other services, determine the implicit fee that Excite@Home pays for transport, and then calculate a “fair” price for the access provided to unaffiliated ISPs. Since cable companies do not currently offer pure transport, all of these calculations would have to begin from scratch -- and each local government would be free to develop and impose its own methodologies.
Cost-of-service and other similar regulatory tools are the essence of common carrier regulation, from which Congress has consistently shielded cable operators.  Even the FCC, with its attendant resources, has had little success in allocating the costs of integrated plant between video and other services,  and its efforts to develop cost allocation rules in more traditional contexts have consumed enormous time and resources of both government and private sector participants. 
Once in this regulatory briar patch created by the mandatory access provisions, there is no way out as long as the access requirement remains. Existing regulatory models are extremely complicated and demand considerable oversight to implement. The inevitable disputes over cost allocation, rates, technical standards, and even the definition of “access” itself will to endless litigation. Implementation of any unbundling scheme would consume the resources of governmental authorities and private parties in contentious, ongoing regulatory proceedings that will only deter investment and frustrate the development of facilities-based competition. It was precisely to avoid bringing this regime down on cable operators and suppliers of cable services that Congress enacted sections 621(b)(3)(D) and 621(c) of the Communications Act.
Contrary to the goals of the 1996 Telecommunications Act  and section 706 of that statute,  requiring cable operators to provide access to all ISPs would impede competition by disrupting the contractual relationship between Excite@Home and its cable partners, thereby undermining current and future investment in the development of high-speed services. The ongoing roll-out the @Home service is contingent upon further investment in facilities and, most significantly, in the “last mile” to the customer’s home. These upgrades are very expensive and capital-intensive, requiring from $600 to $800 for each cable customer. Notwithstanding the excitement surrounding the launch of cable Internet services, there is still no way to predict with certainty that cable Internet services will attract a critical mass of subscribers. The imposition of unbundled access or other burdensome regulations on cable Internet services would reduce investment in cable infrastructure and deny or delay the availability of these services.
There is no question but that the mandatory access provisions embraced by the District Court will significantly raise the cost of capital to make these necessary investments. Investment in broadband facilities is risky and lacks a guaranteed return. If the market perceives the threat of regulation as a realistic possibility, it could stall further upgrades and delay the roll-out of broadband services. If the capital markets doubt government commitment to full competition in broadband infrastructure, a dangerous precedent will be set for anyone who contemplates building their own network. This will significantly raise the cost of capital for new facilities-based competitors, if not forestall these projects entirely. 
At this early stage, government should be “particularly careful”  about taking steps that could unnecessarily interfere with consumer choice. The best way to maximize choice and competition in prices and features for broadband services is to encourage investment and infrastructure-based competition. Requiring cable companies to provide unbundled access to their facilities would create an express disincentive to further investment by any facilities-based competitor.
Excite@Home’s broadband network -- including its backbone and the upgraded cable infrastructure of its partners -- is the fruit of years of risky investment, research and development, and testing. Competitors are clamoring for the government to intervene and transfer to them the benefits of that investment. The only sure result of government intervention would be to delay or deprive consumers of real choice of facilities-based providers in this market.
For the foregoing reasons, the opinion of the District Court should be
August 16, 1999
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 Multnomah County Resolution 98-208; City of Portland Ordinance 172955 (the “Municipal Ordinances”).
 AT&T Corp. et al v. City of Portland and Multnomah County, CV 99-65-PA (D.Or., filed June 3, 1999), slip op.
 47 U.S.C. §§ 151, et seq.
 In January 1999, the company merged with Excite, Inc., which offers consumers comprehensive Internet navigation services.
 Each cable operator also develops local content that is placed on Excite@Home’s “home page,” the first screen that a consumer sees when she accesses the @Home service. A consumer may also program her computer to connect to a different home page, without having to go through Excite@Home’s content.
 [Define “backbone”, etc.] Backbone services route traffic between Internet access providers. See MCI-WorldCom, 13 FCC Rcd. at 18104-05 ¶ 143 n.383 (describing backbone services).
 [Define “caching”, etc.]
 AT&T, Cablevision Systems, Comcast, etc.
 Under Excite@Home’s arrangements with cable operators, this is defined as 128 kilobits per second (“Kbps”) or higher.
 For example, “browsing” the Internet tends to consume bandwidth in discrete bursts intermixed with periods of inactivity.
 Excite@Home purchases dark fiber on AT&T’s backbone network. Excite@Home supplies and operates the equipment that send transmissions over this network to the public Internet.
 Local caching servers also help to compile comprehensive usage data to assist with network troubleshooting, fine-tuning performance and tailoring the @Home service to the needs of its customers.
 While the peak data transmission speed of a cable modem depends on the specific model -- and can approach 10 to 27 Mbps downstream and 0.7 to 10 Mbps upstream -- the performance that subscribers actually experience is often constrained by the capacity of their personal computers, the capacity of the server being accessed, and the type of network architecture utilized.
 Current partners include Bloomberg and CNN Interactive.
 Current partners include Amazon.com, BuyDirect.com, AutoConnect, N2K, PC Connection, QVC, Realtor.com, Reel.Com and Travelocity.
 The company has already co-located game servers on its network backbone and is offering multiplayer online games to @Home subscribers from SegaSoft.
 Partners include Bloomberg Radio, CNET Radio, Net Radio, SportsLine and Spinner.com.
 See, e.g., slip. op. at 12 (dismissing concerns about the lack of procedures to implement mandatory access by referring to existing “procedures for resolving disputes over franchise agreements, which would allow plaintiffs to be heard and seek judicial review”).
 Cf. slip. op. at 7-8.
 Brief of AT&T Corp. at __; see also Advanced Services Report at __-__.
 City Ordinance 172995 at __; County Resolution 98-208 at __. The term “cable modem platform” is undefined in both ordinances.
 The dynamic nature of enriched broadband services will also require constant improvements in and modifications to local network support. Proponents of forced access do not ‑‑ and cannot ‑‑ explain how one cable systems could change quality of service parameters in the cable modem, enable multicast sessions for pay-per-application streams or configure small office or home office virtual private network parameters. Conflicts between the cable operators and the unaffiliated ISP will be costly to resolve.
 47 U.S.C. § 541(c).
 See H.R. Rep. 102-628, 102d Cong., 2d Sess. 83 (1992) (equating the establishment of a cable equivalent of a “‘cost allocation manual’” with common carrier regulation).
 See In the Matter of Allocation of Costs Associated with Local Exchange Carrier Provision of Video Programming Services, CC Docket No. 96-112, 11 FCC Rcd 17211 (1996).
 See, e.g., Jurisdictional Separations Reform and Referral to the Federal-State Joint Board, CC Docket No. 80-286, Notice of Proposed Rulemaking, FCC 97-354 (rel. Oct. 7, 1997).
 Mandating access will also reduce substantially any incentives existing for competitors to build their own facilities alone or in cooperation with others.
 706 NOI Report at ¶ 74. See also id. at ¶ 91 (noting the “early stage of deployment to residential customers . . . .”).