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
   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]