Sec. 51.317  Standards for identifying network elements to be made 
          available.

    (a) In determining what network elements should be made available 
for purposes of section 251(c)(3) of the Act beyond those identified in 
Sec. 51.319, a state commission shall first determine whether it is 
technically feasible for the incumbent LEC to provide access to a 
network element on an unbundled basis.
    (b) If the state commission determines that it is technically 
feasible for the incumbent LEC to provide access to the network element 
on an unbundled basis, the state commission may decline to require 
unbundling of the network element only if:
    (1) The state commission concludes that:
    (i) The network element is proprietary, or contains proprietary 
information that will be revealed if the network element is provided on 
an unbundled basis; and
    (ii) A requesting telecommunications carrier could offer the same 
proposed telecommunications service through the use of other, 
nonproprietary unbundled network elements within the incumbent LEC's 
network; or
    (2) The state commission concludes that the failure of the incumbent 
LEC to provide access to the network element would not decrease the 
quality of, and would not increase the financial or administrative cost 
of, the telecommunications service a requesting telecommunications 
carrier seeks to offer, compared with providing that service over other 
unbundled network elements in the incumbent LEC's network.