Dissent of Commissioner Susan P. Kennedy

I dissent.

Likelihood of Success on the Merits

27 First Report and Order, Implementation of the Local Competition Provisions in the Telecommunications Act or 1996, CC Docket No. 96-98, released August 8, 1996, at ¶ 407 ("Local Competition Order").

28 Id. at ¶ 427.

29 Id. at ¶ 427.

30 Third Report and Order and Fourth Further Notice of Proposed Rulemaking, Implementation of the Local Competition Provisions in the Telecommunications Act or 1996, CC Docket No. 96-98, released November 5, 1999, at ¶ 306, 313 ("UNE Remand Order"). The sole exception to the no-unbundling rule related only to the unbundling of Digital Subscriber Line Access Multiplexers ("DSLAMs") at remote terminals, which is not at issue here. And the Triennial Review Order eliminated even this limited exception.

31 Id. at ¶ 316 (emphasis added).

32 Report and Order on Remand and Further Notice of Proposed Rulemaking, Review of the Section 251 Unbundling Obligations of Incumbent Local Exchange Carriers, 18 FCC Rcd 16978, ¶ 290, released August 21, 2003 ("Triennial Review Order"); see also id. ¶ 541 ("In order to ensure that both incumbent LECs and competitive LECs retain sufficient incentives to invest in and deploy broadband infrastructure, such as packet switches, we find that requiring no unbundling best serves our statutorily-required goal.").

33 Triennial Review Order ¶ 446, n. 1365 (emphasis added).

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