United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 10, 2002 Decided June 18, 2002
No. 01-1371
Verizon Telephone Companies, et al.,
Petitioners
v.
Federal Communications Commission and
United States of America,
Respondents
WorldCom Inc., et al.,
Intervenors
Consolidated with
01-1379
On Petitions for Review of an Order of the
Federal Communications Commission
Mark L. Evans argued the cause for petitioners. With him
on the briefs were Michael K. Kellogg, Scott K. Attaway,
David C. Frederick, Michael E. Glover, Edward Shakin,
Joseph DiBella, Richard M. Sbaratta, James D. Ellis, Jeffrey
B. Thomas and Gary L. Phillips. Roger K. Toppins entered
an appearance.
John Rogovin, Deputy General Counsel, Federal Communi-
cations Commission, argued the cause for respondents. With
him on the brief were John E. Ingle, Deputy Associate
General Counsel, Laurence N. Bourne and Rodger D. Citron,
Counsel, Catherine G. O'Sullivan and Nancy C. Garrison,
Attorneys, U.S. Department of Justice.
David W. Carpenter argued the cause for intervenors
American Telephone and Telegraph Company, et al. With
him on the brief were Peter D. Keisler, James P. Young,
Mark C. Rosenblum, Mark D. Schneider, John E. Benedict,
H. Richard Juhnke, Charles C. Hunter, Catherine M. Han-
nan, Jonathan Jacob Nadler, Jason Oxman, Thomas F.
O'Neil III, William Single IV, Teresa K. Gaugler, Rodney L.
Joyce, Mary C. Albert and Morton J. Posner. David L.
Lawson and Paul J. Zidlicky entered appearances.
Before: Ginsburg, Chief Judge, and Randolph and Tatel,
Circuit Judges.
Opinion for the Court filed by Circuit Judge Tatel.
Tatel, Circuit Judge: Section 251(c)(6) of the Telecommu-
nications Act of 1996 requires incumbent local exchange
carriers to provide competitive local exchange carriers with
space for the "physical collocation of equipment necessary for
interconnection or access to unbundled network elements at
[their] premises." Responding to our opinion in GTE Service
Corporation v. FCC, which vacated the Federal Communica-
tion Commission's first order implementing section 251(c)(6)
"insofar as it embrace[d] unduly broad definitions of 'neces-
sary' and 'physical collocation,' " the Commission issued a new
order, which petitioners now challenge. They argue that (1)
the Commission's standard for collocatable equipment re-
mains overly broad because it permits collocation of any
equipment "necessary for interconnection or access" whether
or not it is "necessary" to place such equipment "at the
premises"; (2) the Commission unlawfully allowed the place-
ment of switching and routing equipment, as well as equip-
ment containing multiple functions only some of which are
"necessary" for interconnection or access to network ele-
ments; (3) the Commission lacks authority to order incum-
bents to physically connect collocating competitive local ex-
change carriers to each other; and (4) the Commission's
space assignment rules are unlawful. Finding petitioners'
claims either meritless or waived, we deny the petitions.
I.
In order to foster competition for local telephone services,
Congress, in the Telecommunications Act of 1996, authorized
competitive local exchange carriers (CLECs) to place certain
equipment within the premises of incumbent local exchange
carriers (ILECs) so that CLECs could gain access to ILECs'
networks. Specifically, section 251(c)(6) requires ILECs to
"provide, on rates, terms, and conditions that are just, reason-
able, and nondiscriminatory, for physical collocation of equip-
ment necessary for interconnection or access to unbundled
network elements at the premises of the local exchange
carrier." 47 U.S.C. s 251(c)(6). The statute provides certain
exceptions (not here relevant) for instances where an ILEC
can demonstrate to a state commission that "physical colloca-
tion is not practical for technical reasons or because of space
limitations." Id.
Based on this statutory authorization, the Commission is-
sued an order entitled Deployment of Wireline Services Of-
fering Advanced Telecommunications Capability, 14 F.C.C.
Rcd. 4761 (1999), ("Collocation Order"), in which it outlined
the types of equipment that may be collocated, established
standards for the assignment of space within the ILEC's
facilities, and fashioned rules allocating the initial costs of
preparing collocation space. A detailed summary of this
Collocation Order appears in our decision in GTE Service
Corporation v. FCC, 205 F.3d 416, 420 (D.C. Cir. 2000). In
that case, although we affirmed the Commission's cost alloca-
tion rule, we found defective its standards for the types of
equipment collocatable and its space assignment rules. The
flaws in the Commission's prior ruling fell into three catego-
ries, which we outline below together with the Commission's
responses on remand. See Deployment of Wireline Services
Offering Advanced Telecommunications Capability, 16 F.C.C.
Rcd. 15,435 (2001) ("Remand Order").
Equipment "necessary" for interconnection or access
In GTE, we found "impermissibly broad," 205 F.3d at 424,
the Commission's interpretation of the phrase "necessary for
interconnection or access," which allowed collocation of any
equipment " 'used or useful' for either interconnection or
access to unbundled network elements, regardless of other
functionalities inherent in such equipment," Collocation Order
p 28. The Commission's interpretation, we observed, "ap-
pear[ed] to permit competitors to collocate equipment that
may do more than what is required to achieve interconnection
or access." GTE, 205 F.3d at 423.
Responding to this criticism, the Commission now deems
equipment "necessary" for purposes of section 251(c)(6) only
"if an inability to deploy that equipment would, as a practical,
economic, or operational matter, preclude the requesting
carrier from obtaining interconnection or access to unbundled
network elements." Remand Order p 21. In crafting this
new standard, the Commission rejected Verizon's argument
that "necessary" modifies the phrase "physical collocation,"
reasoning that "such a reading would wrongly place [the]
focus on whether 'collocation' of the equipment is necessary,
... as opposed to whether the equipment itself, regardless of
its location in the network, is necessary for interconnection
[or] access to unbundled network elements." Remand Order
p 25 (emphasis added) (internal quotation marks omitted).
In light of its new standard, the Commission also reexam-
ined its treatment of switching and routing equipment. In
the Collocation Order, the Commission expressly declined to
require incumbents to collocate "equipment used exclusively
for switching," finding insufficient support in the record for
such a requirement. Collocation Order p 30. At the same
time, however, the Commission warned that it might "explore
requiring such collocation in the future," id.--precisely what
it did on remand from GTE. Benefitting from a "greatly
expanded record ... reflect[ing] ... parties' several years of
experience with the unbundled network access regime," the
Commission reversed course, Remand Order p 51, concluding
that smaller, more modern switching and routing equipment
may be entitled to collocation because it was "necessary" to
"access an unbundled local loop's theoretical capability of
providing a telecommunications service," id. p 46. The Com-
mission declined to allow collocation of older, traditional
circuit switches, finding them unnecessary in light of the
availability of smaller, more modern switches.
With regard to multi-functional equipment--i.e., "equip-
ment that combines functions that meet [the] equipment
standard with functions that would not meet that standard as
stand-alone functions," Remand Order p 32--the Commission
now allows collocation if (1) the "primary purpose and func-
tion ... as the ... carrier seeks to deploy" the equipment are
to provide interconnection or access to unbundled network
elements; (2) any additional functions have a "logical nexus"
to that purpose; and (3) the additional functions do not
"affect the demand on the incumbent's space and other
resources so significantly as to increase the relative burden
on the incumbent's property interests," id. pp 36-40.
"Cross-connect" requirement
In GTE, we vacated the Commission's decision to allow
CLECs to connect their equipment directly to that of other
collocating carriers "subject only to the same reasonable
safety requirements that the [ILEC] imposes on its own
equipment." Collocation Order p 33. The "obvious problem"
with this so-called cross-connect requirement, we thought,
was that it "impose[d] an obligation on [I]LECs that ha[d] no
apparent basis in [a] statute [that] focuse[s] solely on connect-
ing new competitors to [I]LECs' networks." GTE, 205 F.3d
at 423. In its Remand Order, the Commission elected to
maintain the cross-connect requirement, but in a modified
form. Instead of allowing CLECs to provision (i.e., install
and maintain) their own cross-connects, the Commission now
requires ILECs to provision cross-connects upon request.
Remand Order p 62. The Commission imposed that require-
ment because "[i]f an incumbent ... refuses to provision
cross-connects between [CLECs] collocated at the incum-
bent's premises, the incumbent would be the only LEC that
could interconnect with all or even any of the [CLECs]
collocated at a common, centralized point--the central office."
Id. p 63. In contrast, for two CLECs to exchange traffic
without a cross connect,
each [CLEC] would have to carry its own telecommuni-
cations traffic into its collocation space and then ... have
the incumbent LEC transport that traffic over incum-
bent-owned facilities to an interconnection point outside
the incumbent's premises. From [there], the other
[CLEC] would likely then carry the traffic back to its
own collocation space in the same central office to be
transported through the [CLEC's] network.
Id. p 64. Such "back hauling," the Commission found, would
impose "significant wasteful economic costs" on CLECs that
"incumbent LECs themselves do not face" and that would
"severely restrict the viability of competitive transport." Id.
pp 64 & n. 166, 63.
According to the Commission, three separate provisions of
the Communications Act support the new cross-connect re-
quirement. First, the Commission found the cross-connect
requirement authorized under section 201(a), which requires a
common carrier:
to furnish such communication service upon reasonable
request therefor; and, in accordance with the orders of
the Commission, in cases where the Commission, after
opportunity for hearing, finds such action necessary or
desirable in the public interest, to establish physical
connections with other carriers....
47 U.S.C. s 201. Second, an incumbent's "refusal to provi-
sion cross-connects," the Commission concluded, was an "un-
just and unreasonable practice in connection with existing
services," Remand Order p 72, thus violating section 201(b)'s
requirement that all "[c]harges, practices, classifications, and
regulations for and in connection with such communication
service ... be just and reasonable." 47 U.S.C. s 201(b).
Finally, because it felt ILECs would be operating in an
"unreasonable and discriminatory manner if [they] refused to
provide cross-connects between collocators," Remand Order
p 79, the Commission found the new cross-connect require-
ment authorized by section 251(c)(6)'s requirement of colloca-
tion on such "terms and conditions" as are "just, reasonable,
and nondiscriminatory," 47 U.S.C. s 251(c)(6). Arguing that
GTE does not foreclose this result, the Commission pointed
out that GTE merely rejects the notion that cross-connects
were collocatable equipment and never addresses whether the
Commission "could require incumbent ... provisioned cross-
connects pursuant to the 'rates, terms, and conditions' clause
of section 251(c)(6)." Remand Order p 81.
Space assignment rules
Third and finally, in GTE, we vacated the Commission's
space assignment rules. By banning ILECs from requiring
competitors to use separate entrances, or isolated rooms or
floors, those rules left "competitors ... free to pick and
choose preferred space on the LECs' premises, subject only
to technical feasibility." GTE, 205 F.3d at 426. Modifying
the space assignment rules in response to GTE, the Commis-
sion gave ILECs "ultimate responsibility" for placement of
equipment. Remand Order p 90. An ILEC may also provide
for the physical segregation of collocated equipment "if the
proposed separated space is: (a) available in the same or a
shorter time frame as non-separated space; (b) at a cost not
materially higher than the cost of non-separated space; and
(c) is comparable, from a technical and engineering stand-
point, to non-separated space." Remand Order p 102. Under
the Remand Order, moreover, incumbents may require segre-
gated spaces only where "legitimate security concerns, or
operational constraints unrelated to the incumbent's ... com-
petitive concerns, warrant them." Id. p 102. The Commis-
sion adopted this final requirement after finding "based on
the record ... that there [was] simply insufficient evidence to
support a finding that incumbent['s] security concerns require
physical separation of collocated equipment ... in every
instance." Id. p 101. It also held that ILECs could require
separate entrances "where construction of such ... en-
trance[s] is technically feasible, and will neither artificially
delay collocation provisioning nor materially increase the
requesting carrier's costs" and where an incumbent has "le-
gitimate security concerns." Id. p 103.
II.
Claiming the Commission "failed to heed this Court's man-
date" in GTE, Pet'rs' Opening Br. at 4, petitioner Verizon
Communications, Inc., together with BellSouth Corporation
and SBC Communications, Inc. (throughout this opinion we
shall refer to petitioners as "Verizon") now petition for re-
view. Verizon argues that (1) the Commission's new reading
of section 251(c)(6) is overly broad because it allows for the
collocation of equipment "at the premises" of ILECs even if
"interconnection or access" could be obtained through the use
of off-site equipment, id. at 15 (internal quotation marks
omitted); (2) the Commission acted unlawfully by allowing
CLECs to collocate switching or routing equipment and by
permitting CLECs to collocate multifunctional equipment
without demonstrating that each function is "necessary for
interconnection or access," id. at 16; (3) the Commission has
no authority to order carrier-to-carrier cross-connects; and
(4) the new space assignment rules "grant competitors un-
warranted rights to control the specific location of their
equipment within the incumbent's premises," id. at 17. In-
tervening in support of the Commission are fourteen other
telecommunications companies, led by AT&T Corporation.
The familiar standard established by Chevron U.S.A., Inc.
v. Natural Resources Defense Council, 467 U.S. 837 (1984),
governs our review of the Commission's interpretation of a
statute it administers. Under this standard, we first deter-
mine whether Congress has "spoken to the precise question
at issue," and if not, we defer to any "permissible" agency
interpretation. Id. at 843. We do not understand Verizon to
be arguing that the Commission's interpretation fails Chev-
ron's first step, nor could such an argument succeed with
respect to the agency's interpretation of section 251(c)(6) in
light of our express holding that the relevant statutory terms
are ambiguous. See GTE, 205 F.3d at 421 (holding that the
"disputed terms at issue--'necessary,' 'physical collocation,'
and 'premises' ... are ambiguous in their meanings"). Con-
sequently, we "defer to the Commission's interpretations if
they are reasonable and consistent with the statutory pur-
pose." Id. Our deference is particularly great where, as
here, the issues involve "a high level of technical expertise in
an area of rapidly changing technological and competitive
circumstances." Sprint Comms. Co. v. FCC, 274 F.3d 549,
556 (D.C. Cir. 2001). With this highly deferential standard in
mind, we consider each of Verizon's arguments.
We begin with Verizon's claim that the phrase "equipment
necessary for interconnection or access to unbundled network
elements at the premises of the local exchange carrier," 47
U.S.C. s 251(c)(6), means that CLECs may not place equip-
ment on an ILEC's premises unless an off-site location is
infeasible. According to Verizon, the Commission's interpre-
tation, which focuses on whether the equipment is necessary
for interconnection or access "regardless of its location in the
network," Remand Order p 25, "ignore[s] the pivotal phrase
at the end of the sentence, which makes clear that equipment
must be necessary ... at the premises of the local exchange
carrier," Pet'rs' Opening Br. at 20. The only sensible inter-
pretation of this language, Verizon argues, is that "the adjec-
tive 'necessary' " "relates" to "both components of the com-
pound prepositional phrase 'for interconnection or access ...
at the premises of the local exchange carrier.' " Pet'rs' Reply
Br. at 4. Otherwise, "the 'premises' clause does no work at
all; it is simply a redundant appendage." Pet'rs' Opening Br.
at 20.
As the Commission points out, on remand from GTE,
Verizon made an entirely different textual argument, namely,
that the word "necessary" modifies "physical collocation," not
"equipment." See Comments of the Verizon Telephone Com-
panies, Oct. 12, 2000 at 2 (requesting the Commission "find
that the term 'necessary' modifies the phrase 'physical collo-
cation of equipment,' so that any physical collocation can be
ordered only where that collocation is 'necessary for intercon-
nection or access to unbundled network elements' "). The
Commission rejected that argument, finding that the "most
natural reading" of the statutory language, as dictated by
"simple grammar," is that the term "necessary" modifies
"equipment," not "physical collocation." Remand Order p 25.
Seizing upon this variation, the Commission insists that Veri-
zon has waived its "at the premises" argument. See High
Plains Wireless, LP v. FCC, 276 F.3d 599, 608 (D.C. Cir.
2002) (citing 47 U.S.C. s 405(a)). We agree.
Conceding that it never presented to the Commission the
precise textual argument it raises now, Verizon argues that
"every facet of an argument" need not be presented to the
Commission as long as the "basic challenge to a Commission
policy was reasonably flagged." Pet'rs' Reply Br. at 9 (cita-
tion and internal quotation marks omitted). The case Verizon
relies upon, Time Warner Entertainment Co. v. FCC, 144
F.3d 75, 81 (D.C. Cir. 1998), however, establishes a slightly
more demanding test. There, we held that if "a petitioner
makes a basic challenge to a Commission policy, but the
formulation of the issue presented to us was not precisely as
presented to the Commission, we ask whether a reasonable
Commission necessarily would have seen the question raised
before us as part of the case presented to it." 144 F.3d 75, 81
(D.C. Cir. 1998). Here, Verizon made a quite specific textual
argument before the Commission--that the word "necessary"
modifies the phrase "physical collocation." In responding to
this argument, the Commission had no occasion to consider
the different textual argument made here--that the word
"necessary" relates to the phrase "at the premises" as well as
to the phrase "physical collocation." The textual argument
Verizon made before the Commission does not logically impli-
cate the one it makes now, as would have been the case if, for
example, the Commission, in order to arrive at its decision,
would necessarily have had to determine the effect of the "at
the premises" language. In short, we do not believe that a
"reasonable Commission necessarily would have seen" the
argument Verizon now raises.
We have expressed our concern about the effect on federal
"agencies' rightful role in statutory construction under the
Chevron framework" when petitioners fail "to present statuto-
ry challenges to ... agencies for initial resolution." Line-
master Switch Corp. v. EPA, 938 F.2d 1299, 1309 (D.C. Cir.
1991). This case implicates that concern. Chevron's second
step requires that we defer to an agency's interpretation of
ambiguous statutory provisions such as section 251(c)(6). By
failing to raise before the Commission the textual argument it
makes now, Verizon has deprived us of the Commission's
expert judgment, informed by the pertinent policy consider-
ations, as to the relationship between the word "necessary"
and the phrase "at the premises." Were we to reject the
Commission's waiver argument, we would have to undertake
the very sort of freewheeling policy inquiry that Chevron
deference was crafted to avoid. This we may not do.
Our conclusion that Verizon has waived its primary statuto-
ry claim largely moots its challenge to the Commission's
decision to allow collocation of switches and routers in certain
instances, as Verizon's arguments depend heavily on its asser-
tion that CLECs could feasibly locate such equipment off-
premises. Verizon, however, makes an additional argument
that focuses more precisely on the Commission's reasoning
with respect to switches and routers rather than the general
standard for equipment entitled to collocation. The Commis-
sion determined that without a
switch[ ] or router, the local loop is merely a transmis-
sion medium theoretically capable of carrying telecom-
munications traffic. To access an unbundled local loop's
theoretical capability of providing a telecommunications
service, i.e., of accommodating the transmission of infor-
mation between or among points specified by the user, a
requesting carrier must, as a practical, economic and
operational matter, be able to switch or route traffic to
or from that loop.
Remand Order p 46 (internal quotation marks omitted). Ac-
cording to Verizon, this reasoning "has no apparent stopping
point: Every piece of equipment in a competitor's network is
arguably necessary to complete a call and thereby 'to access
an unbundled local loop's theoretical capability of providing
telecommunications service.' " Pet'rs' Opening Br. at 24.
Although acknowledging the Commission's ruling that equip-
ment used for "call-related databases, information services, or
operations support" (i.e., back office equipment) "may not be
collocated," Pet'rs' Br. at 24 (citing Remand Order p 24),
Verizon insists that the Commission "failed to articulate any
coherent limiting principle to justify those exclusions" since a
"competitor could hardly complete a call without using the
appropriate database to determine where a call must be
switched--thereby making such a database 'necessary' on the
same flawed reasoning that switching equipment is supposed-
ly necessary." Pet'rs' Reply Br. at 12-13. Again, we dis-
agree.
To begin with, we think it inaccurate to say that the
Commission's reasoning has no limiting principle. Putting
aside the question of whether a call-related database is "nec-
essary" to access the functions of a local loop, Verizon gives
us no reason to believe that the Commission's standard fails
coherently to exclude "operations support system equipment"
and other "troubleshooting, billing or record-keeping" equip-
ment. Pet'rs' Reply at 12. Moreover, even with respect to
call-related databases, given the heavy deference owed, the
distinctions drawn by the Commission easily withstand scruti-
ny. The Commission relied on the fact that switching and
routing equipment activates those capabilities of a loop that
allow the loop to carry calls. That is not the case with call-
related databases, which merely allow the switch to identify
which local loop to activate but do not actually activate the
loop's capabilities themselves.
Verizon next challenges the Commission's decision to allow
collocation of multifunctional equipment in certain circum-
stances. According to Verizon, "that view of the Commis-
sion's statutory authority is squarely foreclosed by this
Court's holding in GTE that the statute does not permit
competitors to smuggle unnecessary functions into otherwise
necessary equipment." Pet'rs' Opening Br. at 26. GTE
contains no such holding. Rather, GTE simply expresses
concern over the Collocation Order's standard, which seemed
to allow competitors to add any function that "lower[ed] costs
and increase[d] the services they [could] offer their custom-
ers." GTE, 205 F.3d at 424. By contrast, the Remand Order
limits collocation of multifunctional equipment to devices
whose "primary purpose" is interconnection or access to
unbundled network elements and whose additional functions
have a "logical nexus" to this primary purpose, Remand
Order WW 36-40. We find this statutory interpretation emi-
nently reasonable, particularly since the statute speaks of
collocatable "equipment" not "functions." 47 U.S.C.
s 251(c)(6).
Next, Verizon claims that the cross-connect requirement
can be justified under neither section 201 nor section
251(c)(6). Relying on the general rule that "a specific statute
will not be controlled or nullified by a general one," Crawford
Fitting Co. v. J.T. Gibbons, 482 U.S. 437, 445 (1987), Verizon
first argues that the "general authority in section 201 simply
does not empower the Commission to sidestep the specific
limitation in section 251(c)(6) on the authorized use of collo-
cated equipment." Pet'rs' Opening Br. at 38. Under the
Remand Order, however, cross-connects are no longer collo-
cated; rather, they are owned and maintained by the incum-
bent. Thus, section 251(c)(6)'s limitations on collocatable
equipment are irrelevant. Cf. Verizon Tel. Cos. v. FCC, 122
S.Ct. 1646, 1684 (2002) (noting in the context of section
251(c)(3) that "it takes a stretch to get from permissive
statutory silence to a statutory right on the part of incum-
bents to refuse to combine [unbundled network elements] for
a requesting carrier").
The only issue, then, is whether the cross-connect require-
ment can be justified under either section 201(a) or (b).
Although the Commission explicitly invoked both subsections,
Verizon's opening brief never addresses section 201(b). Not
until its reply brief does Verizon argue that section 201(b)
might not apply even in the absence of section 251(c)(6),
Pet'rs' Reply Br. at 22, but this comes too late, see Power Co.
of Am., L.P. v. FERC, 245 F.3d 839, 845 (D.C. Cir. 2001)
(finding arguments not in opening brief waived). We will
thus affirm the Commission on that ground without reaching
the question of whether the Commission reasonably invoked
either section 201(a) or section 251(c)(6)'s "terms[ ] and condi-
tions" clause.
This brings us, finally, to Verizon's challenge to the space
assignment rules. According to Verizon, the "new rules,
though superficially more limited" than the previous rules
struck down in GTE, "nonetheless effectively allow competi-
tors to insist on their space preferences and apparently
prevent incumbents from requiring that competitors install
their equipment in segregated space." Pet'rs' Opening Br. at
40. This argument lacks merit. Attempting to make the
current rule resemble the vacated portions of the previous
rule, Verizon mischaracterizes both. For example, Verizon
states that "the default rule effectively remains what it was
before: Incumbents apparently may not, as a general matter,
require segregated collocation space and separate entrances."
Pet'rs' Opening Br. at 40 (emphasis added). This inaccurate-
ly describes the Collocation Order; instead of mandating as a
"default" that incumbents could not require segregated space
and separate entrances, that order prohibited their use com-
pletely. See Collocation Order p 42.
Turning to the current rule and mischaracterizing it as
well, Verizon argues that ILECs' "security and efficiency
concerns apparently count for nothing in the Commission's
calculus." Pet'rs' Opening Br. at 41. The Commission, how-
ever, abandoned the requirement that CLECs be permitted
to control the placement of equipment; rather, the Remand
Order acknowledges that because "[a]n incumbent is far more
familiar with the design and layout of its premises," it should
have "ultimate responsibility" for determining where to place
equipment. Remand Order p 90. Moreover, rather than
banning separate entrances and segregated facilities outright,
the Commission established a presumption against their use,
which ILECs can rebut by showing that legitimate security
concerns require separate facilities or entrances, that the
separate facilities are comparable from an engineering stand-
point, that they are available on a similar time frame, and
that their use will not "materially" increase CLEC costs.
Remand Order p 102. Finally, the Commission did not ignore
ILEC security concerns; rather, it found "insufficient evi-
dence to support a finding that [those] concerns require
physical separation of collocated equipment from the incum-
bent's own equipment in every instance." Id. p 101.
As Verizon's brief makes clear, it prefers a rule that "at a
minimum, permit[s] an incumbent, as a default, ... to deter-
mine where in its central office ... competitors may install
their equipment and the path they may take through those
buildings." Pet'rs' Opening Br. at 40. But this is a policy
judgment for the Commission; nothing in the statute man-
dates such a result or disallows the path the Commission here
has chosen.
III.
The petitions for review are denied.
So ordered.