The Honorable John Ashcroft
Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, D.C. 20530

Dear Mr. Attorney General:

We are writing with respect to the Federal Communications Commission's Triennial Review Order (TRO), portions of which were vacated and remanded to the Federal Communications Commission by the U.S. Circuit Court of Appeals the District of Columbia on March 2, 2004. We strongly urge the Department of Justice not to seek a rehearing or appeal of the D.C. Circuit's sound decision.

The Commission's TRO, released in August 2003, was the third and most recent of the Commission's efforts to implement the unbundling requirement of Section 251 of the Communications Act of 1934, which was added to statute as part of the Telecommunications Act of 1996. The U.S. Supreme Court (once) and the D.C. Circuit (twice) have invalidated Commission rules implementing Section 251 on three successive occasions. It is time for the Commission to recognize that, in a government based upon the rule of law, it cannot adopt regulations that are inconsistent with the statutes enacted by Congress. Further appeals will not affect the outcome when the regulations adopted by the Commission are so completely at odds with the statutory language cited by the courts.

In addition, in our view, the expeditious implementation of the D.C. Circuit's mandate is essential for the health of the telecommunications sector and necessary to ensure that the government provides all companies with the incentive to engage in robust facilities-based competition. As you know, this important sector of the economy was particularly hard-hit during the recent recession. Thousands of jobs and billions of dollars of market value were lost, and hundreds of million dollars of capital expenditures were postponed. Appealing the court's decision will further postpone the recovery for this sector as investment and hiring decisions remain "on hold" until the uncertainty created by an appeal is resolved with finality. In contrast, the prompt and judicially sound revision of the Commission's regulations will end the uncertainty that now acts as a barrier to creating new jobs and making new investments in plant and equipment in the telecommunications sector.

We find the arguments for the prompt implementation of the court's mandate to be compelling, and do not see any benefit to further appeals and their attendant uncertainty. We hope that the Department of Justice will agree and will not assist the Commission even if that agency prefers to appeal the D.C. Circuit decision.

Sincerely,