[Code of Federal Regulations]
[Title 47, Volume 3]
[Revised as of October 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 47CFR51.317]

[Page 32-33]
 
                       TITLE 47--TELECOMMUNICATION
 
        CHAPTER I--FEDERAL COMMUNICATIONS COMMISSION (CONTINUED)
 
PART 51_INTERCONNECTION--Table of Contents
 
  Subpart D_Additional Obligations of Incumbent Local Exchange Carriers
 
Sec. 51.317  Standards for requiring the unbundling of network elements.

    (a) Proprietary network elements. A network element shall be 
considered to be proprietary if an incumbent LEC can demonstrate that it 
has invested resources to develop proprietary information or 
functionalities that are protected by patent, copyright or trade secret 
law. The Commission shall undertake the following analysis to determine 
whether a proprietary network element should be made available for 
purposes of section 251(c)(3) of the Act:
    (1) Determine whether access to the proprietary network element is 
``necessary.'' A network element is ``necessary'' if, taking into 
consideration the availability of alternative elements outside the 
incumbent LEC's network, including self-provisioning by a requesting 
telecommunications carrier or acquiring an alternative from a third-
party supplier, lack of access to the network element precludes a 
requesting telecommunications carrier from providing the services that 
it seeks to offer. If access is ``necessary,'' the Commission may 
require the unbundling of such proprietary network element.
    (2) In the event that such access is not ``necessary,'' the 
Commission may

[[Page 33]]

require unbundling if it is determined that:
    (i) The incumbent LEC has implemented only a minor modification to 
the network element in order to qualify for proprietary treatment;
    (ii) The information or functionality that is proprietary in nature 
does not differentiate the incumbent LEC's services from the requesting 
telecommunications carrier's services; or
    (iii) Lack of access to such element would jeopardize the goals of 
the Act.
    (b) Non-proprietary network elements. The Commission shall determine 
whether a non-proprietary network element should be made available for 
purposes of section 251(c)(3) of the Act by analyzing, at a minimum, 
whether lack of access to a non-proprietary network element ``impairs'' 
a requesting carrier's ability to provide the service it seeks to offer. 
A requesting carrier's ability to provide service is ``impaired'' if, 
taking into consideration the availability of alternative elements 
outside the incumbent LEC's network, including elements self-provisioned 
by the requesting carrier or acquired as an alternative from a third-
party supplier, lack of access to that element poses a barrier or 
barriers to entry, including operational and economic barriers, that are 
likely to make entry into a market by a reasonably efficient competitor 
uneconomic.

[70 FR 8952, Feb. 24, 2005]