BellSouth Corp. v. Federal Communications Commission

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 25, 1998 Decided December 22, 1998

No. 98-1019

BellSouth Corporation, et al.,

Appellants

v.

Federal Communications Commission,

Appellee

AT&T Corporation, et al.,

Intervenors

Appeal of an Order of the

Federal Communications Commission

Laurence H. Tribe argued the cause for appellants. With

him on the briefs were Jonathan S. Massey, Michael K.

Kellogg, Charles R. Morgan, William B. Barfield, M. Robert

Sutherland, Jim O. Llewellyn and David G. Frolio. Walter

H. Alford entered an appearance.

Christopher J. Wright, General Counsel, Federal Commu-

nications Commission, argued the cause for appellee. With

him on the briefs were Daniel M. Armstrong, Associate

General Counsel, John E. Ingle, Deputy Associate General

Counsel, Laurence N. Bourne, Counsel, and Brian M. Hoffs-

tadt, Special Counsel.

David W. Carpenter argued the cause for intervenors

AT&T Corporation, et al. With him on the briefs were Peter

D. Keisler, Mark C. Rosenblum, Roy E. Hoffinger, Donald B.

Verrilli, Jr., Anthony C. Epstein, Ian Heath Gershengorn,

William Single, IV, Sue D. Blumenfeld, David P. Murray,

Charles C. Hunter, Catherine M. Hannan, Daniel L. Bren-

ner, Neal M. Goldberg, David L. Nicoll, Richard J. Metzger,

Emily M. Williams, Genevieve Morelli, Robert J. Aamoth,

Richard S. Whitt, Riley M. Murphy, Danny E. Adams, Brad

E. Mutschelknaus, John J. Heitmann, Jonathan E. Canis

and James J. Freeman. Theodore. Whitehouse entered an

appearance.

Joel I. Klein, Assistant Attorney General, U.S. Department

of Justice, Philip D. Bartz, Acting Assistant Attorney Gener-

al, Catherine G. O'Sullivan, Nancy C. Garrison, Robert B.

Nicholson, Mark B. Stern, Jacob M. Lewis, and Alisa B.

Klein, Attorneys, were on the briefs for intervenor United

States of America.

William T. Lake, John H. Harwood, II and Robert B.

McKenna were on the brief for intervenor U S WEST, Inc.

Kenneth S. Geller, Donald M. Falk, Harold S. Reeves,

Theodore A. Livingston and John E. Muench were on the

brief for intervenor Ameritech Corporation.

Before: Edwards, Chief Judge, Wald and Sentelle,

Circuit Judges.

Opinion for the Court filed by Chief Judge Edwards.

Separate statement filed by Circuit Judge Sentelle,

concurring in the result.

Edwards, Chief Judge: This petition for review represents

yet another attack by BellSouth Corporation on the constitu-

tionality of the Telecommunications Act of 1996 (the "Act").

Just this past term, BellSouth challenged the validity of s 274

of the Act, 47 U.S.C. s 274 (Supp. II 1996), which limits the

ability of Bell operating companies ("BOCs") to provide "elec-

tronic publishing." See BellSouth Corp. v. FCC, 144 F.3d 58

(D.C. Cir. 1998) ("BellSouth I"). In this earlier case, Bell-

South claimed that s 274 was an unconstitutional bill of

attainder, because the subjects of its restrictions, the BOCs,

are singled out by name. In the instant case, BellSouth

Corporation, BellSouth Telecommunications, Inc., and Bell-

South Long Distance, Inc. (collectively "BellSouth") challenge

the validity of s 271 of the Act, 47 U.S.C. s 271 (Supp. II

1996), which prevents the BOCs from immediately providing

in-region long distance telephone service absent satisfaction

of certain statutory criteria.

Once again, BellSouth claims that the challenged provision,

here s 271, is an unconstitutional bill of attainder and, in

addition, that it results in a denial of equal protection and a

violation of the separation of powers doctrine. BellSouth also

seeks to overturn the Federal Communications Commission's

("FCC") denial of its application to provide long distance

service in South Carolina, see Application of BellSouth Corp.,

et al. Pursuant to Section 271 of the Communications Act of

1934, as amended, To Provide In-Region, InterLATA Ser-

vices In South Carolina, 13 F.C.C.R. 539 (1997) ("Order"),

contesting both the FCC's finding that BellSouth is foreclosed

from petitioning to provide service under s 271(c)(1)(B), and

the FCC's findings regarding BellSouth's compliance with

certain "competitive checklist" items under s 271. We found

no merit in the claims raised in BellSouth I and this challenge

fares no better.

We hold that s 271 does not violate any of the constitution-

al provisions raised by BellSouth. The section does not

violate the bill of attainder clause, because it does not inflict

"punishment" on BellSouth. Instead, it is a rational and

nonpunitive congressional enactment that serves to open tele-

communications markets. Section 271 also does not violate

the equal protection clause, because Congress had a rational

basis for singling out the BOCs, i.e., the unique nature of

their control over their local exchange areas. Finally, s 271

does not violate the separation of powers doctrine, because

Congress did not substitute its judgment for that of a court;

rather it simply altered the prospective effects of a consent

decree, which it was surely free to do.

We also find that the FCC was correct in concluding that

BellSouth is foreclosed from petitioning to provide service

under s 271(c)(1)(B), because BellSouth has failed to demon-

strate that no "qualifying requests" for access and intercon-

nection have been made. Moreover, given our finding that

BellSouth is foreclosed from providing service under

s 271(c)(1)(B), we can find no reason to address the competi-

tive checklist issues.

I. Background

As we noted in BellSouth I, the Telecommunications Act of

1996, Pub. L. No. 104-104, 110 Stat. 56 (1996), "changed the

entire telecommunications landscape." 144 F.3d at 61.

Therefore, in order to put the instant case in proper focus, we

begin with an overview of the industry landscape prior to the

passage of the Act, as well as the Act itself.

A.The Telecommunications Market and the 1996 Act

In 1982, the American Telephone & Telegraph Company

("AT&T") executed a consent decree, settling an antitrust suit

brought by the Government in 1974. That decree, as modi-

fied by the District Court, is known as the Modification of

Final Judgment ("MFJ"). United States v. American Tel.

and Tel. Co., 552 F. Supp. 131 (D.D.C. 1982), aff'd sub nom.

Maryland v. United States, 460 U.S. 1001 (1983). The princi-

pal element of the MFJ was the requirement that AT&T

divest itself of its local exchange monopolies. BellSouth's two

local operating companies, Southern Bell Telephone and Tele-

graph Company and South Central Bell Telephone Company,

were among the twenty-two BOCs spun off as a result of the

decree. Each of the twenty-two BOCs were grouped into

seven unaffiliated regional Bell operating companies

("RBOCs"). Due to mergers, there are now only five

RBOCs, one of which is BellSouth.

The MFJ prohibited the BOCs from certain lines of busi-

ness, including the provision of long distance services across

different "Local Access and Transit Areas" ("interLATA ser-

vices"), because of the BOCs' "bottleneck" power over the

local exchange facilities. See 552 F. Supp. at 223-24. (For

the remainder of this opinion, we will refer to interLATA

services as long distance services.) The MFJ also provided

that the BOCs could petition for relief from these prohibi-

tions, including the prohibition against providing long dis-

tance services, if the petitioning BOC could show "that there

is no substantial possibility that it could use its monopoly

power to impede competition in the market it seeks to enter."

Id. at 231.

Over the life of the MFJ, the District Court granted nearly

300 waivers easing the restrictions of the decree. A few of

these waivers were related to the long distance service re-

striction, but they were limited to the provision of services

such as paging, time-of-day information, toll-free services, 911

services, international services, and cellular services. Howev-

er, no BOC ever successfully petitioned under the MFJ to

provide long distance telephone services.

In 1996, Congress passed the Act, by which it sought to

open all telecommunications markets, including local tele-

phone markets. To this end, many provisions of the Act were

made generally applicable to incumbent local exchange carri-

ers. For example, ss 251 and 252 require all incumbents to

permit new carriers to compete for local customers and set

forth procedures that incumbents must follow in order to

open their local markets to competition. See 47 U.S.C.

ss 251-252 (Supp. II 1996).

A critical feature of the Act is found in s 601(a)(1). This

provision eliminated the prospective effects of the MFJ by

providing that "[a]ny conduct or activity that was, before the

date of enactment of this Act, subject to any restriction or

obligation imposed by the [MFJ] shall, on and after such

date, be subject to the restrictions and obligations imposed by

the Communications Act of 1934 as amended by this Act and

shall not be subject to the restrictions and the obligations

imposed by [the MFJ]." Telecommunications Act of 1996

s 601(a)(1), 110 Stat. at 143.

In addition to the Act's generally applicable provisions and

the elimination of the future effects of the MFJ, Congress

enacted ss 271 through 276, special provisions applicable only

to the BOCs listed in s 153(4) of the Act. BellSouth is

governed by these provisions. As noted in BellSouth I, "[i]n

general these provisions simply maintained, and in most cases

loosened, various restrictions to which the BOCs were already

subject under the MFJ." 144 F.3d at 61. In other words,

generally speaking, the BOCs were better off in terms of

business market opportunities under the Act than they had

been under the MFJ.

Section 271, the section at issue in this case, provides that

the BOCs may immediately begin providing some categories

of long distance services that were previously restricted

under the MFJ. These services include "out-of-region" long

distance services, i.e., long distance services originating out-

side the state(s) in which a BOC is authorized to provide local

telephone service, and "incidental" long distance services,

such as audio and video programming and commercial mobile

services. See 47 U.S.C. s 271(b)(2), (g). Section 271 pre-

vents a BOC from immediately providing in-region long dis-

tance services. But this restriction may be overcome by

fulfilling the requirements of s 271(c) and (d).

In order to provide in-region long distance services, a BOC

must first demonstrate that either s 271(c)(1)(A), known as

Track A, or s 271(c)(1)(B), known as Track B, has been

satisfied. Track A requires a BOC to show that it has

entered into an agreement to provide access and interconnec-

tion to "one or more unaffiliated competing providers of

telephone exchange service ... to residential and business

subscribers." Id. s 271(c)(1)(A). Track B, on the other

hand, requires a BOC to show that "no such provider has

requested the access and interconnection described in subpar-

agraph (A)" three months prior to the BOC's application. Id.

s 271(c)(1)(B). Such a request is called a "qualifying re-

quest." See Order p 59. In addition, even if a BOC has

received a qualifying request, it may still proceed under

Track B if the party that made the request either failed to

negotiate in good faith or failed to comply with an implemen-

tation schedule in an interconnection agreement. See 47

U.S.C. s 271(c)(1)(B); SBC Communications Inc. v. FCC,

138 F.3d 410, 413-14 (D.C. Cir. 1998) ("SBC Communica-

tions") (providing further explanation of Track A and Track B

requirements).

If a BOC satisfies either Track A or B, it must then show

that it offers the items listed in s 271(c)(2)(B), the "competi-

tive checklist." See 47 U.S.C. s 271(d)(3)(A). Included on

the competitive checklist are things such as nondiscriminatory

access to 911 and E911 services, adequate operational support

systems, nondiscriminatory access to unbundled network ele-

ments, and contract service arrangements at a wholesale

discount. See id. s 271(c)(2)(B). A BOC must also be willing

to provide its in-region long distance service through a sepa-

rate subsidiary as required by s 272, and must persuade the

FCC that its provision of long distance service "is consistent

with public interest, convenience, and necessity." See id.

s 271(d)(3)(B), (C).

B.Procedural History

BellSouth filed an application on September 30, 1997 to

provide in-region long distance services in South Carolina.

See Order p 1. It claimed that it had met the requirements of

Track B as interpreted by the FCC in Application of SBC

Communications Inc., Pursuant to Section 271 of the Com-

munications Act of 1934, as amended, To Provide In-Region,

InterLATA Services In Oklahoma, 12 F.C.C.R. 8685 (1997)

("Oklahoma Order"), aff'd, SBC Communications, 138 F.3d

410 (D.C. Cir. 1998). See Order p 52. It also contended that

it had generally offered all fourteen checklist items. See

Brief in Support of Application by BellSouth for Provision of

In-Region, InterLATA Services in South Carolina at 17-57,

reprinted in Joint Appendix 317-57.

The FCC denied BellSouth's application, because it found

that qualifying requests had been made for the services in

South Carolina. See Order p 67. Accordingly, BellSouth was

not eligible to proceed under Track B. See id. It also found

that BellSouth did not generally offer all fourteen checklist

items. See id. p 240. BellSouth timely petitioned for review

of the FCC's decision in this court on January 13, 1998.

C.Other Relevant Developments

Since BellSouth filed its appeal, three cases relevant to this

appeal have been decided. On March 20, 1998, this court

decided SBC Communications, denying SBC's petition to

review the so-called Oklahoma Order. In that case, SBC

sought review of the FCC's denial of its request to provide in-

region long distance services in Oklahoma. SBC argued that

it had satisfied Track A, because another entity was providing

service to 20 customers in the region. SBC argued in the

alternative that it had satisfied Track B. The FCC denied

SBC's request, because it found that SBC had not satisfied

either Track A or Track B.

This court denied SBC's petition to review the FCC's

decision, because it found that the other entity providing

service in-region was doing so free of charge, and it was

reasonable for the FCC to interpret "competing provider" in

Track A to require an "actual commercial alternative to the

BOC." SBC Communications, 138 F.3d at 416 (internal

quotation marks omitted). This court also found that SBC

had not satisfied Track B. Particularly relevant to this case,

this court approved the FCC's interpretation that "Track B

was foreclosed the moment a provider requested interconnec-

tion so long as [the FCC] could predict that the carrier would,

after implementing the agreement, provide competitive ser-

vice to both residential and business customers, at least

predominantly over its own facilities." Id. at 417. Because

SBC had received qualifying requests that satisfied the

FCC's interpretation of Track B, it could not seek to provide

long distance services under that track.

On May 15, 1998, this court decided BellSouth I, holding

that s 274, which limited the ability of the BOCs to provide

electronic publishing, was not a bill of attainder, nor did it

violate the BOCs' right to free speech under the First

Amendment. Although BellSouth I addressed many of the

bill of attainder issues raised in this case, there are differ-

ences between s 274 and s 271 that make this case somewhat

different from that one.

On September 4, 1998, the Fifth Circuit decided SBC

Communications, Inc. v. FCC, 154 F.3d 226 (5th Cir. 1998)

("SBC Communications (5th)"), in which SBC had argued

that all of the Special Provisions of the Act, 47 U.S.C. ss 271-

276, were unconstitutional. Reversing the district court, the

Fifth Circuit found that the provisions did not constitute a bill

of attainder, did not violate the separation of powers require-

ment, and did not violate the equal protection clause. It also

found that the electronic publishing restrictions did not vio-

late the BOCs' right to free speech under the First Amend-

ment.

In the light of these developments, we now review the

FCC's denial of BellSouth's application to provide long dis-

tance services in South Carolina.

II. Analysis

This appeal presents five issues, three of which concern the

constitutionality of s 271, and two of which concern the

FCC's administration of the 1996 Act. We begin with Bell-

South's bill of attainder challenge.

A.Bill of Attainder

Article I, section 9, clause 3 of the Constitution provides

that "[n]o Bill of Attainder or ex post facto Law shall be

passed." Although the prohibition against bills of attainder

was one of the original guarantees of civil liberty, and has

existed for over two hundred years, the Supreme Court has

relied on it only five times to strike down legislation. See

United States v. Brown, 381 U.S. 437 (1965); United States v.

Lovett, 328 U.S. 303 (1946); Pierce v. Carskadon, 83 U.S. (16

Wall.) 234 (1872); Ex parte Garland, 71 U.S. (4 Wall.) 333

(1866); Cummings v. Missouri, 71 U.S. (4 Wall.) 277 (1866).

Despite the infrequency with which this clause arises in

litigation, however, its meaning has nevertheless continued to

evolve.

In our most recent bill of attainder case, BellSouth I, we

addressed issues similar to those raised in this case. Howev-

er, that decision dealt with s 274 of the Act, and the differ-

ences between s 274 and s 271 distinguish BellSouth I from

the instant case.

First, s 274 sunsets on February 8, 2000. See 47 U.S.C.

s 274(g)(2). Section 271 has no such sunset date. In addi-

tion, s 274 allows the BOCs to provide electronic publishing if

they do so through a separate affiliate. Section 271 allows

the BOCs to provide in-region long distance services through

a separate affiliate, but only after they have received the

approval of the FCC by satisfying the requirements of

s 271(c) and (d). Finally, s 274 added restrictions on the

BOCs that had been lifted from the MFJ in 1991. Section 271,

however, is merely a revised version of the MFJ restrictions

covering the provision of long distance services that were still

in effect when the Act was passed.

As we explained in BellSouth I, when the Constitution was

drafted, "bills of attainder" were acts that sentenced named

persons to death without the benefit of a trial. See BellSouth

I, 144 F.3d at 62. By the end of the nineteenth century,

however, the Supreme Court had included penalties short of

death among those prohibited by the bill of attainder clause.

See id. Today, the prohibition against bills of attainder

prevents any "legislative acts, no matter what their form, that

apply either to named individuals or to easily ascertainable

members of a group in such a way as to inflict punishment on

them without a judicial trial." United States v. Lovett, 328

U.S. 303, 315 (1946). Thus, under the most current interpre-

tations of the bill of attainder clause, a law is prohibited if it

(1) applies with specificity, and (2) imposes punishment.

As we made clear in BellSouth I, see 144 F.3d at 62-63,

both of these elements must be present before we will find an

unconstitutional bill of attainder. Indeed, the Supreme Court

has required both specificity and punishment before it will

find that a law constitutes a bill of attainder. In its most

recent bill of attainder cases, Selective Service System v.

Minnesota Public Interest Research Group, 468 U.S. 841, 851

(1984), and Nixon v. Administrator of General Services, 433

U.S. 425, 469-72 (1977), the Court has clearly stated that

satisfaction of the specificity prong alone is not sufficient to

find that a particular law implicates the bill of attainder

clause, let alone violates it. See Selective Service, 468 U.S. at

851 ("Even if the specificity element were deemed satisfied by

[the statutory provision in question], the statute would not

necessarily implicate the Bill of Attainder Clause. The pro-

scription against bills of attainder reaches only statutes that

inflict punishment on the specified individual or group.")

(emphasis added); Nixon, 433 U.S. at 471-72 ("[T]he Act's

specificity--the fact that it refers to appellant by name--does

not automatically offend the Bill of Attainder Clause.").

The Court's jurisprudence on this point is hardly surpris-

ing, because

[l]egislative measures often grant or withhold benefits or

burdens from precisely identified individuals or groups.

A bailout for Chrysler might be seen as a burden to

Ford, a subsidy to Lockheed as a competitive blow to

Boeing, a private bill for a favored constituent as a

severe disappointment to a neighbor, a tax break for one

company as a punishment for a competitor. Yet the bill

of attainder ban has, quite properly, never been regarded

as an obstacle to all such measures--a guarantee that all

lawmaking activity will proceed through majestic gener-

alities. Although the Supreme Court once struck down a

statute exempting American Express by name from a

generally applicable economic regulation, that decision

was itself overruled two decades later, when the Court

upheld a law permitting two identified vendors to contin-

ue hawking their wares in New Orleans' French Quarter

but forbidding all of their competitors to do so.

It is only laws that inflict punishment on legislatively

specified individuals that the bill of attainder ban con-

demns, and the examples noted above make plain that

not all burdens may be deemed punishments for this

purpose even when legislative "specification" is shown.

Laurence H. Tribe, American Constitutional Law s 10-5,

650-51 (2d ed. 1988) (footnotes omitted).

In addition, we also note that, as in BellSouth I, both

parties have assumed "that the Bill of Attainder Clause

protects corporations as well as individuals." BellSouth I,

144 F.3d at 63. Although we make the same assumption

here, it is obvious that there are differences between a

corporation and an individual under the law. Thus, any

analogy between prior cases that have involved individuals

and this case, which involves a corporation, must necessarily

take into account this difference.

Turning to the first step in the bill of attainder analysis,

there is no doubt that s 271 singles out the BOCs by name.

See 47 U.S.C. ss 153(4)(A), 271(a). Thus, because the section

applies with specificity, the first prong of the bill of attainder

query is satisfied.

The next question, then, is whether s 271 inflicts "punish-

ment" on the BOCs. To answer this question, we must look,

as we did in BellSouth I, see 144 F.3d at 64, to the "three

necessary inquiries" articulated in Selective Service, which in

turn are based on the Court's analysis in Nixon:

(1) whether the challenged statute falls within the histor-

ical meaning of legislative punishment; (2) whether the

statute, "viewed in terms of the type and severity of

burdens imposed, reasonably can be said to further

nonpunitive legislative purposes"; and (3) whether the

legislative record "evinces a congressional intent to pun-

ish."

Selective Service, 468 U.S. at 852 (quoting Nixon, 433 U.S. at

473, 475-76, 478). As we noted in BellSouth I, the second

factor invariably appears to be "the most important of the

three." 144 F.3d at 65. However, in this case, we assign no

particular weight to any of the three factors, because we find

that none of the three inquiries result in a finding that the

challenged legislation constitutes punishment.

1.The Historical Meaning of Legislative Punishment

Our first inquiry under Selective Service and Nixon is

whether s 271 falls within the historical meaning of legisla-

tive punishment. In the earliest cases construing the provi-

sion, the only punishment prohibited by the bill of attainder

clause was a sentence of death. See Nixon, 433 U.S. at 473.

However, the Court long ago extended the protections of the

clause to include "bills of pains and penalties." Id. at 474.

Bills of pains and penalties "historically consisted of a wide

array of punishments: commonly included were imprison-

ment, banishment, and the punitive confiscation of property

by a sovereign." Id. (footnotes omitted). In the Court's

most recent jurisprudence, the definition of punishment "has

expanded to include legislative bars to participation by indi-

viduals or groups in specific employments or professions."

Selective Service, 468 U.S. at 852. For example, the Court

has held that barring an individual from holding office in a

labor union falls within the list of historical punishments

forbidden by this clause. See United States v. Brown, 381

U.S. 437 (1965). BellSouth argues that s 271 falls under this

last category, because it imposes unique restrictions on the

BOCs' ability to provide long distance services in-region.

BellSouth made this same argument with respect to s 274

in BellSouth I. See 144 F.3d at 64-65. In that case, al-

though s 274 permitted the BOCs to enter into the electronic

publishing market through structurally separated affiliates,

we assumed, arguendo, that the BOCs were not permitted to

participate in that market at all. We then rejected the

challenge to the statute, in part, on the ground that "the

Supreme Court in Brown strongly suggested that line-of-

business restrictions pose no bill of attainder concerns." 144

F.3d at 65. Likewise, we see no concerns in this case.

Even leaving aside our analysis in BellSouth I, the Su-

preme Court has said that "[a] statute that leaves open

perpetually the possibility of [overcoming a legislative restric-

tion] does not fall within the historical meaning of forbidden

legislative punishment." Selective Service, 468 U.S. at 853.

BellSouth attempts to nullify this point by citing the Court's

earlier opinion in Brown saying that "inescapability" is not

"an absolute prerequisite to a finding of attainder." 381 U.S.

at 457 n.32. The Brown decision cited, as an example, the

famous post-Civil War case, Ex parte Garland, 71 U.S. (4

Wall.) 333 (1866), which involved a challenge to a statute

requiring attorneys to swear that they had not participated in

the rebellion against the Union before they could practice in

federal court. See Brown, 381 U.S. at 447. The Court in

Garland struck down the provision as a bill of attainder,

because it was found to be a "legislative act[ ] inflicting

punishment on a specific group: ... lawyers who had taken

part in the rebellion and therefore could not truthfully take

the oath." Id.

This case is a far cry from Garland and other such cases,

however. Section 271 only requires that, in order to prevent

the creation of monopolies, the BOCs must open their local

telephone markets to competition. Thus, much like the stat-

ute in Selective Service, which simply required individuals to

register for the draft before they would be eligible for

financial aid, s 271 leaves open the very real possibility that

the BOCs may qualify to provide long distance services in-

region by simply meeting the requirements of that section.

Cf. Selective Service, 468 U.S. at 853. Viewed in this light,

s 271's requirements are no different than numerous regula-

tory measures aimed at particular industries that have never

been held to inflict punishment.

For example, it would be patently absurd, we think, for an

inorganic chemical manufacturing company to argue that

because it must comply with environmental laws specific to

that industry, Congress has "punished" it in violation of the

bill of attainder clause. Leaving aside the nonpunitive pur-

pose of such laws, it is clear that the environmental laws

perpetually leave open the possibility that the company may

still manufacture lawful products by simply employing the

appropriate pollution control techniques or devices.

Moreover, the cases in which employment bars have been

struck down are those in which the ban was used as "a mode

of punishment ... against those legislatively branded as

disloyal." Nixon, 433 U.S. at 474; see Brown, 381 U.S. 437

(1965) (striking down statute that imposed sanctions on one

who was a member of the Communist Party and an officer or

employee of a labor union); Lovett, 328 U.S. 303 (1946)

(striking down statute that cut off the salary of three named

employees based on their membership in the Communist

Party); Garland, 71 U.S. (4 Wall.) 333 (1866) (striking down

statute that required attorneys to take oath that they had not

aided the Confederacy before being allowed to practice in

federal court); Cummings, 71 U.S. (4 Wall.) 277 (1866) (strik-

ing down amendments to state constitution that barred people

from teaching as well as other professions because they had

aided or sympathized with the Confederacy). When the

Court extended "punishment" to include employment bars, it

did so because it was concerned that the government had

imposed restrictions that violated the fundamental guarantees

of political and religious freedom. Here, there is no indica-

tion that run-of-the-mill business regulations, such as s 271,

implicate these same concerns. Thus, it is difficult to see how

s 271 can be equated with the employment bar cases relied

upon by BellSouth.

Furthermore, we note that the Supreme Court has ap-

proved other line-of-business restrictions without ever sug-

gesting that the restrictions constituted "punishment." See,

e.g., FCC v. National Citizens Comm. for Broad., 436 U.S.

775 (1978) (upholding FCC rules banning broadcast licensee

from owning newspaper in same market); Board of Gover-

nors of Fed. Reserve Sys. v. Agnew, 329 U.S. 441 (1947)

(upholding conflict-of-interest statute that prevented employ-

ees of securities underwriting firms from simultaneously

working for banks that belong to Federal Reserve System).

Thus, we find that s 271 does not fall within the list of

historical punishments recognized by the Court.

2.Furthering Nonpunitive Purposes

As we noted in BellSouth I, even if a statute does not fall

within the historical definition of punishment, our inquiry

under the bill of attainder clause does not end. Instead, we

must ensure that a nonpunitive legislative purpose is served

by the legislation in order to prevent "Congress from circum-

venting the clause by cooking up newfangled ways to punish

disfavored individuals or groups." BellSouth I, 144 F.3d at

65. Thus, we must now determine whether s 271 furthers

nonpunitive legislative purposes. See BellSouth I, 144 F.3d

at 65; Siegel v. Lyng, 851 F.2d 412, 418 (D.C. Cir. 1988).

Before we begin our analysis of s 271 under this prong, we

note that we must proceed carefully when characterizing a

statute as one that "reasonably can be said to further nonpun-

itive legislative purposes." Nixon, 433 U.S. at 475-76. We

recognize, for example, that a statute that names an individu-

al and sentences him to death is a bill of attainder, without

regard to whether Congress could articulate some nonpuni-

tive purpose for the execution, such as the protection of public

safety. See Brown, 381 U.S. at 458. In other words, we

must ensure that " 'the nonpunitive aims of an apparently

prophylactic measure [are] sufficiently clear and convincing,' "

BellSouth I, 144 F.3d at 65 (quoting Tribe, supra, s 10-5, at

655), before we find that it does not constitute a bill of

attainder.

The Supreme Court has consistently looked to nonpunitive

purposes when assessing whether a statute inflicts punish-

ment. As early as 1889, the Court recognized that, even

though employment bars were considered punitive in Cum-

mings and Garland, a law that imposed certain requirements

on individuals before they could practice medicine did not

constitute a bill of attainder. See Dent v. West Virginia, 129

U.S. 114 (1889). In distinguishing the earlier cases of Cum-

mings and Garland, the Court stated:

There is nothing in these decisions which supports the

positions for which the plaintiff in error contends. They

only determine, that one who is in the enjoyment of a

right to preach and teach the Christian religion as a

priest of a regular church, and one who has been admit-

ted to practise the profession of the law, cannot be

deprived of the right to continue in the exercise of their

respective professions by the exaction from them of an

oath as to their past conduct, respecting matters which

have no connection with such professions. Between this

doctrine and that for which the plaintiff in error contends

there is no analogy or resemblance. The constitution of

Missouri and the act of Congress in question in those

cases were designed to deprive parties of their right to

continue in their professions for past acts, or past expres-

sions of desires and sympathies, many of which had no

bearing upon their fitness to continue in their profes-

sions. The law of West Virginia was intended to secure

such skill and learning in the profession of medicine that

the community might trust with confidence those receiv-

ing a license under authority of the State.

Dent, 129 U.S. at 128.

The Court later found in Hawker v. New York, 170 U.S.

189, 197 (1898), that a law prohibiting convicted felons from

practicing medicine did not inflict punishment and therefore

was not a bill of attainder. In so finding, the Court stated

that "[t]he State is not seeking to further punish a criminal,

but only to protect its citizens from physicians of bad charac-

ter." Id. at 196. The Court also noted that, although there

may be alternate ways of determining good character, it was

up to the legislature to make this decision:

It is no answer to say that this test of character is not in

all cases absolutely certain, and that sometimes it works

harshly. Doubtless, one who has violated the criminal

law may thereafter reform and become in fact possessed

of a good moral character. But the legislature has power

in cases of this kind to make a rule of universal applica-

tion, and no inquiry is permissible back of the rule to

ascertain whether the fact of which the rule is made the

absolute test does or does not exist.

Id. at 197.

The Court again embraced the point that burdensome

regulation cannot simply be equated with punishment in De

Veau v. Braisted, 363 U.S. 144, 160 (1960). In that case, the

Court held that a statute prohibiting convicted felons from

being officers of a waterfront union did not violate the bill of

attainder clause:

Clearly, s 8 embodies no further implications of appel-

lant's guilt than are contained in his 1920 judicial convic-

tion; and so it manifestly is not a bill of attainder....

The question in each case where unpleasant conse-

quences are brought to bear upon an individual for prior

conduct, is whether the legislative aim was to punish that

individual for past activity, or whether the restriction of

the individual comes about as a relevant incident to a

regulation of a present situation, such as the proper

qualifications for a profession. No doubt is justified

regarding the legislative purpose of s 8. The proof is

overwhelming that New York sought not to punish ex-

felons, but to devise what was felt to be a much-needed

scheme of regulation of the waterfront, and for the

effectuation of that scheme it became important whether

individuals had previously been convicted of a felony.

Id. (citation omitted).

This court, too, has had occasion to determine whether

certain legislation constituted forbidden punishment or legiti-

mate, nonpunitive regulation. In Siegel v. Lyng, Siegel had

been the President, Director, and majority shareholder of a

company that was cited for flagrant and repeated violations of

the Perishable Agricultural Commodities Act ("PACA"). See

851 F.2d at 413. Under that Act, someone who was formerly

"responsibly connected" with a violator of the Act was barred

from employment with any other licensee under the Act for

one year. See id. at 414-15. The court found that this

prohibition did not inflict "punishment" under the bill of

attainder clause, see id. at 417, because there were legitimate

justifications for the employment bar:

This Court recently echoed Congress' express purpose

behind the PACA enforcement regime, including the

employment restrictions: namely, that the Act's "special

sanctions against dishonest or unreliable dealing" "help

instill confidence in parties dealing with each other on

short notice, across state lines and at long distances...."

[Veg-Mix, Inc. v. United States Dep't of Agric., 832 F.2d

601, 604 (D.C. Cir. 1987)]. This legislative and executive

resolve to guarantee that PACA transactions by firms

employing persons "responsibly connected" to disciplined

licensees be conducted with easy-to-monitor, scrupulous

compliance with the Act is ample justification for the

temporary employment bar.

Id. at 418 (footnote omitted); see also Zwick v. Freeman, 373

F.2d 110, 119-20 (2d Cir. 1967) (finding that the same PACA

employment bar was not a bill of attainder).

Likewise, in Dehainaut v. Pena, 32 F.3d 1066, 1071-72 (7th

Cir. 1994), the Seventh Circuit was asked to determine the

constitutionality of an Office of Personnel Management policy

that indefinitely barred former air traffic controllers who had

participated in a strike against the federal government from

reemployment with the Federal Aviation Administration

("FAA"). The court found that the policy did not constitute a

bill of attainder and, in so finding, the court specifically stated

that:

Even where a fixed identifiable group--such as the fired

controllers--is singled out and a burden traditionally

associated with punishment--such as permanent exclu-

sion from an occupation--is imposed, the enactment may

pass scrutiny under bill of attainder analysis if it seeks to

achieve legitimate and non-punitive ends and was not

clearly the product of punitive intent. Put differently,

"[t]he question in each case where unpleasant conse-

quences are brought to bear upon an individual for prior

conduct, is whether the legislative aim was to punish that

individual for past activity, or whether the restriction of

the individual comes about as a relevant incident to a

regulation of a present situation, such as the proper

qualifications for a profession."

....

... Here, by contrast, we find an adequate nexus be-

tween the restriction imposed and the legitimate govern-

mental purpose. President Reagan determined that the

intermingling of controllers who had been fired for strik-

ing with those who had replaced them would interfere

with the safety and efficiency of the FAA's operations.

Id. (citations omitted); see also 2 Ronald D. Rotunda & John

E. Nowak, Treatise on Constitutional Law: Substance and

Procedure s 15.9(c), at 476-77 (2d ed. 1992) ("[W]henever the

Court is confronted with the claim that legislation constitutes

a bill of attainder, it must determine whether the designation

of persons based on past conduct simply names individuals for

punishment or whether the designation promotes a nonpuni-

tive goal based on reasonable criteria over which the individu-

al has some control."); Tribe, supra, s 10-5, at 655 ("Even

measures historically associated with punishment--such as

permanent exclusion from an occupation--have been other-

wise regarded when the nonpunitive aims of an apparently

prophylactic measure have seemed sufficiently clear and con-

vincing.").

Thus, even if the restrictions of s 271 were equivalent to an

employment bar--an assumption that we do not endorse--the

section would not offend the bill of attainder clause if it

furthers nonpunitive purposes. The question, then, is wheth-

er there is convincing evidence of legitimate, nonpunitive

purposes furthered by s 271 that prevent us from striking it

down. We believe there is.

First, s 271 was passed as part of the 1996 Act, an act that

Congress hoped "would 'provide for a pro-competitive, dereg-

ulatory national policy framework ... by opening all telecom-

munications markets to competition.' " SBC Communica-

tions, 138 F.3d at 413 (quoting H.R. Conf. Rep. No. 104-458,

at 1 (1996)). As we explained in SBC Communications,

changing the entire telecommunications landscape was a mon-

umental and difficult task for Congress. Deregulating the

long distance services market was particularly difficult:

The question of how best to achieve that goal ... was the

subject of great debate. Some thought that the local and

long-distance markets should be open to all competitors

immediately. Others believed that the BOCs should

have to wait until actual competition was introduced in

their local markets before providing interLATA service,

since it was claimed that the long-distance market is

already competitive. As might be expected for an issue

of this economic significance, an extended lobbying strug-

gle ensued. The end product was a compromise between

the competing factions.

States and localities were no longer to sanction local

monopolies; they are now barred from "prohibiting the

ability of any entity to provide ... intrastate telecommu-

nications service." 47 U.S.C.A. s 253(a) (West Supp.

1997). The BOCs are obliged to provide any requesting

carrier with nondiscriminatory interconnection to their

networks and nondiscriminatory access to unbundled net-

work elements at reasonable rates, terms, and conditions;

they must also offer telecommunications services at

wholesale rates for resale to end users. 47 U.S.C.A.

s 251(c).

Id.

Second, it is clear that requiring the BOCs to comply with

s 271 is not punitive, but, rather, legitimately based on the

infrastructure they control. As the legislative history notes,

The seven BOCs provide over 80% of local telephone

service in the United States. Several hundred other

carriers provide the balance of local service. While some

competition has developed in the local business service

and exchange access markets, local residential service

remains a monopoly service.

H.R. Rep. No. 104-204, pt.1, at 49 (1995). And, as we found in

BellSouth I, "[b]ecause the BOCs' facilities are generally less

dispersed than [those of other competitors], they can exercise

bottleneck control over both ends of a telephone call in a

higher fraction of cases than can [other competitors]." 144

F.3d at 67.

Furthermore, prior to the passage of the Act, the BOCs

were subject to the MFJ because of their peculiar character-

istics and assets, and it was perfectly proper for the legisla-

ture to look at the MFJ's findings as evidence of the BOCs'

dominance in the market. Thus, it was proper for the

legislature to consider the prior judicial findings embodied in

the MFJ, not because Congress seeks to punish the BOCs

based on that decree, but, rather, because it hopes "to devise

what [i]s felt to be a much-needed scheme of regulation" in

the long distance services market. See De Veau, 363 U.S. at

160. And, "for the effectuation of that scheme," see id., it was

important to treat the BOCs differently, because, as the

District Court found in approving the MFJ, preventing the

BOCs from providing long distance services was "clearly

necessary to preserve free competition in the interexchange

market." 552 F. Supp. at 188.

In addition, as we noted in BellSouth I, Congress may read

the evidence before it in a different way than might this court

or any other, so long as it remains clear that Congress was

pursuing a legitimate nonpunitive purpose. See 144 F.3d at

66. In other words, it does not matter that Congress argu-

ably could have enacted different legislation in an effort to

open the long distance markets to competition. The main

point here is that it cannot be legitimately "suggested that

the risks of anticompetitive conduct were so feeble that no

one could reasonably assert them except as a smokescreen for

some invidious purpose (much less for the specific invidious

purpose of 'punishing' the BOCs)." Id. And just as the

Court in Hawker acknowledged that ex-felon status was "not

in all cases [an] absolutely certain" test of character, "and

that sometimes it works harshly," 170 U.S. at 197, such a

determination does not render legislation unconstitutional

under the bill of attainder clause.

In sum, we find that s 271 furthers legitimate, nonpunitive

purposes: Congress required the BOCs to open their local

markets to competition before allowing them to enter the long

distance services market in-region, because, due to the unique

infrastructure controlled by the BOCs, they could exercise

monopoly power. Moreover, there is adequate support for

this reasoning, particularly in light of the MFJ. Thus, as we

noted in BellSouth I, "the differential treatment of the BOCs

and non-BOCs, is neither suggestive of punitive purpose nor

particularly suspicious." 144 F.3d at 67. Accordingly, we

find that s 271 furthers nonpunitive purposes.

3.Legislative Intent To Punish

Finally, we briefly address the final prong of the punish-

ment test: whether the legislative record indicates a legisla-

tive intent to punish. As we noted in BellSouth I, BellSouth

must show " 'unmistakable evidence of punitive intent.' " 144

F.3d at 67 (quoting Selective Service, 468 U.S. at 856 n.15).

"[S]everal isolated statements" are not sufficient to evince

punitive intent. See Selective Service, 468 U.S. at 856 n.15.

BellSouth again cites here, as it did in BellSouth I, the

remarks of members of Congress that refer to the history of

the BOCs and the breakup of AT&T. See Brief for Appel-

lants at 28-29; Reply Brief for Appellants at 13-14 n.7. But,

as we said in BellSouth I, the "few scattered remarks refer-

ring to anticompetitive abuses allegedly committed by the

BOCs in the past" do not provide the kind of " 'smoking gun'

evidence of congressional vindictiveness." 144 F.3d at 67.

Furthermore, as we explained above, Congress was justified

in considering the MFJ when drafting the 1996 Act. Thus,

we find that BellSouth has failed to show the "unmistakable

evidence of punitive intent" that is required under Selective

Service.

In sum, we find that s 271's restrictions do not fall within

the historical meaning of legislative punishment, that they

further nonpunitive purposes, and that there is no unmistak-

able evidence of legislative intent to punish. Thus, we find

that s 271 does not constitute punishment according to the

test articulated in Selective Service.

4.The Beneficial Effects of s 271

The result that we are constrained to reach in this case

makes sense in light of the history of the BOCs in the

telecommunications industry. As the FCC points out, s 271

actually "benefits the BOCs by relieving them of certain

burdens." Brief for Appellee at 19; see Brief of Intervenors

in Support of the FCC at 17 ("Section 271 cannot qualify as

punishment unless it deprives BOCs of a right 'previously

enjoyed.' ") (quoting United States v. Brown, 381 U.S. 437,

448 (1965)). Indeed, in BellSouth I, we commented that

"BellSouth's claim of punitive purpose is somewhat under-

mined by s 274's placement in an Act that as a whole relieves

the BOCs of several of the burdens imposed by the MFJ,

particularly by prescribing in s 271 a method whereby the

BOCs can achieve a long-sought-after presence in the long-

distance market." 144 F.3d at 66.

BellSouth, however, argues that we should not compare the

status of the BOCs under the MFJ in determining whether

s 271 imposes punishment. Instead, BellSouth contends that

"whether section 271 punishes the BOCs must be tested by

comparing how it treats the BOCs as compared to other [local

exchange carriers]--not by comparing the MFJ to the 1996

Act." Brief for Appellants at 20-21. In response, the FCC

and the intervenors are quick to point out that counsel for

BellSouth readily embraced a comparison between the re-

strictions of the 1996 Act and the MFJ when he testified

before Congress:

[I]nsofar as MFJ restrictions are left in place pursuant to

the decision of the D.C. Circuit [in United States v.

Western Electric Co., 900 F.2d 283 (D.C. Cir. 1990)],

Congress has authority to lift such restrictions in whole

or in part, replacing them with equivalent or less restric-

tive regulatory alternatives that single out the parties to

the AT&T litigation, as an exercise of its authority under

the Necessary and Proper Clause, Art. I, section 8, cl. 18,

to "carr(y) into Execution" the powers of the Article III

judiciary. Because such parties have already been sin-

gled out through enforcement activity of the executive

branch, in litigation supervised by the judicial branch,

Congress may likewise address its legislative substitute

for the MFJ to those parties in particular, again provided

that it avoids imposing more burdensome restrictions, or

restrictions that violate the first amendment.

Telecommunications Policy Act (Pt. 1): Hearings Before the

Subcomm. on Communications and Finance of the House

Comm. on Energy and Commerce, 101st Cong. 416 (1990)

(testimony of Professor Laurence H. Tribe, Tyler Professor

of Constitutional Law, Harvard Law School). Such a com-

parison appears reasonable, given that a common definition

for "punish" is "to inflict injury or loss upon." Webster's

Third International Dictionary 1843 (1993). And it is hard

to imagine how s 271 inflicts injury on BellSouth when it was

already prevented under the MFJ from entering the in-region

long distance service market.

Although we acknowledge that it may at times be difficult

to compare a party's status before and after the enactment of

regulatory legislation to determine whether the legislation

inflicts punishment, we nonetheless believe that such a com-

parison is relevant to our analysis. In this case, it is clear

that s 271's restrictions are not more burdensome than those

of the MFJ. BellSouth argues that under the MFJ, a BOC

could petition for the removal of a line-of-business restriction

if it could show that "there is no substantial possibility that

[it] could use its monopoly power to impede competition in the

relevant market." MFJ, 552 F. Supp. at 195. It then points

out that, if the parties to the MFJ consented, a line-of-

business restriction could be removed if the BOC could show

that the change was in the public interest. See United States

v. Western Elec. Co., 900 F.2d 283, 306 (D.C. Cir. 1990). But

now, argues BellSouth, the process is more burdensome,

because s 271 subjects it to "an indefinite procedure of FCC

and Department of Justice review." Brief for Appellants at

21. Our view of the situation is quite different.

Section 271, at worst, provides the BOCs with the possibili-

ty of immediate entrance into the in-region long distance

services market, by following a clearer path than that provid-

ed under the MFJ. As the Fifth Circuit pointed out, "the

Special Provisions gave the BOCs a clear delineation of what

they needed to do to achieve a lifting of all the old MFJ

restrictions in the future--certainly a step up, from the

BOCs' perspective, from being under [the District Court's]

perpetual supervision. It is perhaps for this reason that the

BOCs have apparently consistently represented, outside of

litigation, that they were pleased with the Act." SBC Com-

munications (5th), 154 F.3d at 244; see, e.g., BellSouth

Reaction to President Clinton's Signing of the Telecommuni-

cations Act of 1996, PR Newswire, Feb. 8, 1996, available in

WESTLAW, PRWIREPLUS database (reporting that Bell-

South's Chairman applauded the Act and noted "bipartisan

and industry wide support" for it). In short, as a qualitative

matter, the BOCs are no worse off under s 271 than they

were under the MFJ; and there are many who think their

position has vastly improved. In any event, we are confident

that s 271 does not constitute "punishment," either as a

matter of constitutional law under the bill of attainder clause

or as a matter of common sense.

B.Equal Protection

BellSouth also argues that the application of s 271 denies it

equal protection under the Fifth Amendment. We disagree.

As the Court stated in FCC v. Beach Communications,

Inc., 508 U.S. 307, 313 (1993), "a statutory classification that

neither proceeds along suspect lines nor infringes fundamen-

tal constitutional rights must be upheld against equal protec-

tion challenge if there is any reasonably conceivable state of

facts that could provide a rational basis for the classification."

As we found in BellSouth I, "the differential treatment of the

BOCs and non-BOCs is neither suggestive of punitive pur-

pose nor particularly suspicious." 144 F.3d at 67. Nor does

s 271 infringe a fundamental constitutional right. According-

ly, we need only subject s 271 to rational basis scrutiny.

As explained above, Congress clearly had a rational basis

for singling out the BOCs, i.e., the unique nature of their

control over their local exchange areas. See supra Part

II.A.2. Thus, it was undoubtedly rational for Congress to

restrict the BOCs' entry into the long distance services

market. By no stretch of the imagination can it be found that

s 271 violates equal protection. See Beach Communications,

508 U.S. at 315-16 ("[A] legislative choice is not subject to

courtroom factfinding and may be based on rational specula-

tion unsupported by evidence or empirical data.... Defining

the class of persons subject to a regulatory requirement--

much like classifying governmental beneficiaries--'inevitably

requires that some persons who have an almost equally

strong claim to favored treatment be placed on different sides

of the line, and the fact [that] the line might have been drawn

differently at some points is a matter for legislative, rather

than judicial, consideration.' ") (quoting United States R.R.

Retirement Bd. v. Fritz, 449 U.S. 166, 179 (1980)). And, as

we noted in BellSouth I, the bill of attainder inquiry is "more

exacting than a rational basis test." 144 F.3d at 67. There-

fore, in light of our decision that s 271 does not violate the

bill of attainder clause, we must conclude a fortiori that it

does not violate the equal protection clause.

C.Separation of Powers Challenge

BellSouth next argues that s 271 is contrary to the princi-

ple of separation of powers. It concedes that "Congress may

modify generally applicable rules and thereby supersede a

prior consent decree arising from those underlying rules."

Reply Brief for Appellants at 4. However, the problem,

according to BellSouth, is that s 271 "pinpoint[s]" the BOCs,

and replaces the restrictions imposed on them by the MFJ

with what Congress "deem[ed] ... a more appropriate sanc-

tion." Id. BellSouth contends that, in so doing, Congress

interfered with the prerogative of the judicial branch. Al-

though we agree with BellSouth that Congress may not

reopen "the last word of the judicial department," Plaut v.

Spendthrift Farm, Inc., 514 U.S. 211, 227 (1995), we do not

agree that s 271 implicates this concern.

In Pennsylvania v. Wheeling and Belmont Bridge Co., 59

U.S. (18 How.) 421 (1855), the Court had entered a final

judgment in 1851, ordering the private owner of a bridge

across the Ohio River to either remove or raise a bridge

because it obstructed traffic along the river. See id. at 429.

After that decision, Congress passed legislation that made the

bridge in question a post-road, which meant that the bridge

could remain in place with no interference from navigation

along the river. See id. The bridge was then destroyed by a

storm. See id. at 422. When the owner began to rebuild the

bridge, the state of Pennsylvania filed suit to prevent its

reconstruction based on the Supreme Court's original finding

that the bridge was a nuisance. See id. Faced with this

dilemma, the Court held that the legislation was not unconsti-

tutional, because the injunctive remedy awarded in 1851 was

"a continuing decree," see id. at 431, and, thus, could be

modified by Congress. As a result, the statute passed by

Congress prevented the Court from enjoining the construc-

tion of the bridge. See id. at 431-32. Therefore, as the Fifth

Circuit pointed out, "under [Wheeling], it has long been clear

that Congress may change the law underlying ongoing equi-

table relief, even if, as in Wheeling itself, the change is

specifically targeted at and limited in applicability to a partic-

ular injunction, and even if the change results in the neces-

sary lifting of that injunction." SBC Communications (5th),

154 F.3d at 245.

The Supreme Court recently revisited the separation of

powers doctrine in Plaut. There, Congress had passed a

statute that would have allowed cases alleging claims under

the Securities Exchange Act s 10(b) that had been dismissed

as time-barred to be reinstated. See Plaut, 514 U.S. at 214-

15. The Court held that the statute violated separation of

powers principles, because it reopened final judgments of the

judiciary. See id. at 240. The Court was careful, however,

not to overrule Wheeling, "implicitly [drawing] a ... distinc-

tion between two kinds of final judgments for separation of

powers purposes--final judgments without prospective ef-

fects, which could not be constitutionally revised through

legislation, and final judgments with prospective effects,

whose effects could constitutionally be so revised." Benjamin

v. Jacobson, 124 F.3d 162, 171 (2d Cir. 1997); see Plaut, 514

U.S. at 232 (stating that "nothing in our holding today calls

[Wheeling] into question").

The 1996 Act did not reopen a final judgment, but rather

eliminated the prospective effects of the MFJ, and provided

new restrictions to govern the future acts of the BOCs in its

place, such as those found in s 271. Our analysis is not

altered by the fact that Congress targeted the BOCs for

different treatment, because the Court upheld precisely this

type of specificity in Wheeling.

Moreover, BellSouth's argument appears to be the same

argument that SBC made to the Fifth Circuit regarding

separation of powers, i.e., "a not-too-well-defined argument

that all of the problematic aspects of the Special Provisions--

including particularly their specificity, their interference with

the MFJ, and the near-punitive nature of the liability they

impose--when added together somehow amount to a separa-

tion-of-powers violation that is greater than the sum of its

parts." SBC Communications (5th), 154 F.3d at 246. But in

Plaut, the Court made clear that "[i]t makes no difference

whatever to [the] separation-of-powers violation ... that it is

not accompanied by an 'almost' violation of the Bill of Attain-

der Clause." 514 U.S. at 239; see SBC Communications

(5th), 154 F.3d at 246. Thus, although BellSouth is troubled

by the particularity with which s 271 operates, and the fact

that it believes s 271 is at least near-punitive, this combina-

tion does not change the result of our analysis of the separa-

tion of powers claim. We agree with the Fifth Circuit that

s 271 does not violate separation of powers principles.

D.The Proceedings Under s 271(c)(1)(B)

BellSouth also argues that the FCC erred in finding that it

was foreclosed from proceeding under s 271(c)(1)(B), Track

B, which would allow it to provide long distance services in-

region. Under Track B, as discussed above, a BOC may

apply to provide long distance services if it can show that "no

potential facilities-based provider of the type of telephone

exchange service described in s 271(c)(1)(A) requested access

and interconnection to BellSouth's network." Order p 65.

BellSouth argues that in order to foreclose Track B, a

"competing provider must be taking reasonable steps toward

implementation" of a request. Reply Brief for Appellants at

15; see Brief for Appellants at 33. This interpretation of

Track B, contends BellSouth, is based on the statute as well

as the Oklahoma Order. See Brief for Appellants at 33;

Reply Brief for Appellants at 15-18. The FCC counters that

there is no "reasonable steps" requirement under Track B;

instead, the "reasonable steps" language in the Oklahoma

Order was only used in a discussion of what might be

considered when making a decision regarding subsequent, not

initial, applications. See Brief for Appellee at 31-32; Okla-

homa Order p 58.

In SBC Communications, this court had the opportunity to

determine what type of request foreclosed Track B. See SBC

Communications, 138 F.3d at 417-21. In that case, the FCC

found that "Track B was foreclosed the moment a provider

requested interconnection so long as [the FCC] could predict

that the carrier would, after implementing the agreement,

provide competitive service to both residential and business

customers, at least predominantly over its own facilities." Id.

at 417. This court enforced the agency's interpretation of the

Track B statute because "under [Chevron, U.S.A., Inc. v.

Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)]

we must give deference to the Commission's interpretation if

it is a permissible reading," and the court had "no doubt that

[the FCC's interpretation] passes that test; indeed it may ...

be the only reasonable interpretation." Id. at 421. Notably,

there is no mention of reasonable steps in this definition.

Accordingly, the FCC need not find that a requesting provid-

er has taken reasonable steps before Track B is foreclosed to

a BOC; it must only be able to predict that a provider who

requests interconnection would be able to provide competitive

services "to both residential and business customers, at least

predominantly over its own facilities." Id. at 417.

BellSouth objects to what it sees as the "gaming" aspect of

Track B. It argues that if there is no reasonable-steps

requirement, "the FCC all but ensures that some carriers

(particularly incumbent long distance carriers) will block

Track B for months or years." Reply Brief for Appellants at

17. As the FCC explained in its Order, however, the statute

prevents this type of gaming: if the state commission certifies

that a requesting provider has failed to negotiate in good

faith or has failed to comply with the implementation sched-

ule in an agreement, a qualifying request by that provider

would be ignored. See Order p 64. Thus, if either of these

two situations occurred, Track B would be available to the

BOC. Accordingly, there is no need for a "reasonable steps"

requirement.

BellSouth counters that this answer is illusory, because the

agreements often lack implementation schedules. See Brief

for Appellants at 36-37. But, as the FCC points out, "BOCs

are not precluded from insisting that implementation sched-

ules be included in interconnection agreements." Brief for

Appellee at 34-35; see SBC Communications, 138 F.3d at

420. Moreover, "[i]n any event, this argument does not really

go to congressional purpose ... but rather to the adequacy of

the remedy Congress provided." SBC Communications, 138

F.3d at 420.

BellSouth never offered any evidence that it did not receive

any qualifying requests; instead, it rested solely on evidence

that no carrier had taken the reasonable steps it thought

were necessary to constitute a qualifying request. See Order

pp 65-67 (noting that BellSouth received requests from twen-

ty-six carriers with signed interconnection agreements, only

three of which BellSouth discussed in its application). Thus,

we deny BellSouth's petition to review the FCC's decision,

because it is clear that BellSouth failed to demonstrate that it

is eligible to proceed under Track B.

E.Satisfaction of Certain Competitive Checklist Items Un-

der s 271(c)(2)(B)

BellSouth also argues that the FCC erred in its application

of the competitive checklist of s 271(c)(2)(B). This argument

concerns whether the FCC attempted to "dictate how ...

interconnection, unbundled access, [or] resale ... should be

priced" in violation of the Eighth Circuit's mandamus order in

Iowa Utilities Board v. FCC, 135 F.3d 535 (8th Cir. 1998),

petition for cert. filed, 66 U.S.L.W. 3623 (U.S. Mar. 13, 1998)

(No. 97-1519). Reply Brief for Appellants at 18 (internal

quotation marks omitted). The mandamus order in the sec-

ond Iowa Utilities case is based on the Eighth Circuit's

decision in Iowa Utilities Board v. FCC, 120 F.3d 753 (8th

Cir. 1997), which the Supreme Court has agreed to review.

See 118 S. Ct. 879 (1998).

Because the FCC relied on BellSouth's failure to comply

with the competitive checklist items only as an alternative

ground for its denial of BellSouth's application, see Order

p 76, we see no reason to offer any opinion on the FCC's

findings with respect to this issue.

III. Conclusion

For the reasons set forth above, we deny BellSouth's

petition for review of the FCC's decision.

So ordered.

Sentelle, Circuit Judge, concurring in the result: As the

majority opinion exhaustively sets forth, in the present appeal

BellSouth mounts the same sort of constitutional attack on 47

U.S.C. s 271 that it previously pursued unsuccessfully against

47 U.S.C. s 274 in BellSouth Corp. v. FCC, 144 F.3d 58 (D.C.

Cir. 1998) ("BellSouth I"). In the prior case BellSouth and

the other Bell operating companies ("BOCs") argued that

Congress had punished their prior anti-competitive conduct

by singling them out by name for legislative debarment from

participation in the lucrative line of business constituting

electronic publishing. In the present case they assert the

unconstitutionality of s 271 on the same basis, as it singles

them out by name for disqualification from immediate entry

into the business of providing in-region long distance tele-

phone service until they comply with burdens not imposed on

any other entity no matter how similarly situated. I found

their arguments persuasive in BellSouth I. See 144 F.3d at

71-74 (Sentelle, J., dissenting). I find them equally persua-

sive today.

As the majority today sets forth, Article I, section 9, clause

3 of the Constitution prohibits Congress from passing any

"Bill of Attainder or ex post facto Law." See Maj. op. at 9.

As the majority further recognizes, that clause prohibits any

statute that "(1) applies with specificity, and (2) imposes

punishment." Maj. op. at 10. Specificity is not at issue here.

Section 271, like s 274, specifies its applications solely to the

BOCs by their names. It does not apply to any other of the

"over 1,300 local exchange carriers," BellSouth I, 144 F.3d at

71, no matter how large or market dominant they are or

become. Thus, under the two-part test correctly set forth by

the majority, if s 271 imposes punishment it is an unconstitu-

tional bill of attainder. It does, and it is.

The Supreme Court has previously "announced a three-

part test to determine whether a statute imposes 'punish-

ment' for purposes of the Bill of Attainder Clause":

(1) whether the challenged statute falls within the histor-

ical meaning of legislative punishment; (2) whether the

statute, viewed in terms of the type and severity of

burdens imposed, reasonably can be said to further

nonpunitive legislative purposes; and (3) whether the

legislative record evinces a congressional intent to pun-

ish.

Id. at 72 (quoting Selective Serv. Sys. v. Minnesota Public

Interest Research Group, 468 U.S. 841, 852 (1984)). The

limitations on the BOCs constitute punishment under that

three-part test.

First, this line of business limitation embodied in s 271 is a

restriction of a sort falling within the historic meaning of

legislative punishment. "[L]egislative bars to participation

by individuals or groups in specific employments or profes-

sions" unquestionably fall within the category of punishments

forbidden by the Bill of Attainder Clause. Selective Serv.

Sys., 468 U.S. at 852; United States v. Brown, 381 U.S. 437

(1965) (invalidating statute barring communist party mem-

bers from labor union offices); United States v. Lovett, 328

U.S. 303 (1946) (striking down law cutting off salaries to three

named government employees); Cummings v. Missouri, 71

U.S. (4 Wall.) 277 (1867); Ex Parte Garland, 71 (4 Wall.) 333

(1867) (barring former confederate rebels from entry into

professions). I find unpersuasive the majority's attempt to

distinguish these prior cases on the basis that the "line of

business" restrictions before us leave open the possibility that

they may one day be overcome. I find nothing in the history

of bill of attainder jurisprudence that suggests that the fact

that debarment from business will or may someday end

prevents the temporary or potentially temporary bar from

constituting punishment.

I find even less persuasive the majority's paralleling the

line of business restrictions with regulatory restrictions appli-

cable to entire industries. While it may be true as the

majority argues that environmental laws specific to an indus-

try do not constitute punishment, I do not see how this

lessens or even affects the punitive nature of a restriction

applicable not to a specific industry but rather to specific

named individuals or corporations within an industry inappli-

cable to others in the same industry, whether or not similarly

situated. Both punitive effect and specificity are necessary

to render a legislative enactment an unconstitutional bill of

attainder. Supreme Court precedent upholding regulatory

restrictions (whether punitive or not) where specificity is

lacking is inapposite. See, e.g., FCC v. National Citizens

Comm. for Broad., 436 U.S. 775 (1978); Board of Governors

of Fed. Reserve Sys. v. Agnew, 329 U.S. 441 (1947). In short,

in my view, the first prong of the three-part test of bill of

attainder status is plainly met.

Second, as to whether the statute furthers nonpunitive

legislative purposes, the laudable goal of opening the telecom-

munications industry to competition by deregulating the long

distance market is not served by forbidding specific persons,

whether natural or corporate, from competing on the same

terms as others. If the BOCs possess characteristics that

require that they be more stringently regulated than other

entities, then Congress could further its nonpunitive goals by

imposing limitations on local exchange carriers of a certain

size or market dominance. I do not see how this provision

specifying the individual Bell operating companies furthers

the nonpunitive goals of the new statutory regime; rather, it

furthers the punitive goal of penalizing their past anti-

competitive conduct. Pursuit of this punitive goal strikes at

the heart of the prohibition against "Bills of Attainder" and

"ex post facto Laws" which constitute an essential part of the

Constitution's structural separation of powers among the

branches of government: the redress of past conduct is the

province of the Judiciary, not of the Legislature. As we

recognized in BellSouth I, Article I, section 9, clause 3 of the

Constitution was designed to prevent punishment "without

the benefit of a judicial trial." BellSouth I, 144 F.3d at 62.

As to the third element of the Selective Service System

test, that is, whether the legislative record evinces a congres-

sional intent to punish, as I stated in my dissent in BellSouth

I, while I think this "the least important" of the three factors,

id. at 73, I think it amply met. The timing of the enactment

along with its effect in undoing the termination of the prior

judicial redress of the BOCs' past conduct really leaves no

doubt as to Congress's motive. Congress clearly had avail-

able to it "less burdensome alternatives" under which it could

have addressed its "legitimate nonpunitive objectives" while

refraining from singling out the BOCs for punitive legislative

treatment. See Nixon v. Administrator of General Services,

433 U.S. 425, 482 (1977).

For these reasons, were we writing on a clean slate I would

vote to hold 47 U.S.C. s 271 unconstitutional as a violation of

the Bill of Attainder Clause. But I recognize that we do not

write upon a clean slate. BellSouth I announces the law of

the Circuit. The prior opinions of other panels of this court

bind us. Melcher v. Federal Open Market Comm., 836 F.2d

561, 565 n.4 (D.C. Cir. 1987); National Treasury Employees

Union v. United States, 990 F.2d 1271, 1286 n.7 (D.C. Cir.

1993) (Sentelle, J., dissenting) ("The law of this Circuit,

whether in error or not, is binding absent correction by a

higher court."), aff'd in part and rev'd in part, 513 U.S. 454

(1995). While the BOCs have labored to find distinctions

between s 274 which we struck down in BellSouth I and

s 271 which is before us today, they have produced none of

constitutional significance. I therefore concur in my col-

leagues' decision that we must uphold s 271 as we upheld

s 274.

I do not find that the BOCs' other arguments concerning

the equal protection component of the Fifth Amendment or

the statute's inconsistency with the constitutional separation

of powers change the result. The equal protection argument

is simply the bill of attainder argument dressed in different

clothes. The separation of powers argument is to me a

powerful one, but one which cannot carry the day. While I

would agree that by undoing the judicial decision on this same

subject matter, s 271--and for that matter s 274--falls afoul

of the Supreme Court's reasoning in Plaut v. Spendthrift

Farm, Inc., 514 U.S. 211 (1995), I do not think we could enter

such a holding consistent with our precedent in BellSouth I.

The characteristics which make these statutory sections in-

consistent with constitutional separation of powers are the

same ones which in my view make them inconsistent with the

protections of Article I, section 9, clause 3. See Brown, 381

U.S. at 442 ("The best available evidence, the writings of the

architects of our constitutional system, indicates that the Bill

of Attainder Clause was intended not as a narrow, technical

(and therefore soon to be outmoded) prohibition, but rather

as an implementation of the separation of powers, a general

safeguard against legislative exercise of the judicial function,

or more simply--trial by legislature."). This Circuit having

decided those issues adversely to the BOCs under the more

specific rationale cannot consistently decide in their favor

under the more general. Therefore, again, I join the majori-

ty's result, but only for reasons of stare decisis and binding

precedent, not because I believe it correct.