§  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 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]