Procedures for Bell Operating Company Applications Under New Section 271 of the Communications Act

FEDERAL COMMUNICATIONS COMMISSION

[FCC 96-469]

Procedures for Bell Operating Company Applications Under New

Section 271 of the Communications Act

AGENCY: Federal Communications Commission.

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: The Commission has released a Public Notice which establishes

various procedural requirements and policies relating to the

Commission's processing of Bell operating company applications to

provide in-region, interLATA services pursuant to new section 271 of

the Communications Act of 1934, as amended, 47 U.S.C. Sec. 271 (Act),

Section 271 provides for applications on a State-by-State basis.

FOR FURTHER INFORMATION CONTACT: Florence Grasso, Common Carrier

Bureau, Policy and Program Planning Division. (202) 418-1580.

[[Page 68041]]

SUPPLEMENTARY INFORMATION:

Paperwork Reduction Act

OMB Control Number: 3060-0756

Expiration Date: 06/30/97

Title: Procedures for Bell Operating Company Applications under New

Section 271 of the Communications Act.

Respondents: Business or other for-profit; federal government; and

state, local or tribal government.

Public reporting burden for the collection of information is estimated

as follows:

----------------------------------------------------------------------------------------------------------------

No. of Total

Information collection respondents Annual hour burden per response annual

(approx.) burden

----------------------------------------------------------------------------------------------------------------

Submission of applications by the BOCs....... 7 120 hours per application (7 5,880

(companies) x 7 (estimated

filings each) x 120 (hours)).

Submission of written consultations by the 49 120................................. 5,880

State Regulatory Commissions.

Submission of written consultations by the 1 4,900 (49 (states) x 100 (hours 4,900

Department of Justice. per state)).

----------------------------------------------------------------------------------------------------------------

Total Annual Burden: 16,600.

Frequency of Response: One-time, unless an application must be

resubmitted.

Estimated Costs Per Respondent: $0.

Needs and Uses: The Commission issued a Public Notice (FCC 96-469)

on December 6, 1996 which established various procedural requirements

and policies relating to the Commission's processing of Bell operating

company applications to provide in-region, interLATA services pursuant

to new section 271 of the Communications Act of 1934, as amended, 47

U.S.C. Sec. 271(Act). Section 271 provides for applications on a State-

by-State basis.

Synopsis of Public Notice

A. Application Filing Requirements

Applicants must file an original and six copies of each section 271

application. By ``application.'' we mean (1) a stand-alone document

entitled Brief in Support of Application by [Bell company name] for

Provision of In-Region, InterLATA Services in [State name] and (2) any

supporting documentation. The content of both parts of the application

is addressed later in this Public Notice.

The Applicant's Brief in Support shall also be submitted on a 3.5 inch

computer diskette formatted in WordPerfect 5.1. If electronically

available, the supporting documentation must be included on the

computer diskette as well. With respect to supporting materials that

are not provided on diskette, the applicant should include a note at

the end of the electronic version of the Brief in Support indicating

that such materials are on file with the Commission. All filings

submitted on diskette will be posted on the internet for public

inspection at http://www.fcc.gov. We also urge the applicant to post

its electronic filings on its own internet home page and to inform us

of such posting in the Brief in Support.

If the applicant wants each Commissioner to receive a copy of the

section 271 application, the applicant should file an original plus

eleven copies. The original, all copies, and the diskette should be

sent to the Office of the Secretary, Federal Communications Commission,

Washington, D.C. 20554.Applications will be available for public

inspection during regular business hours in the Reference Center of the

Federal Communications Commission, Room 239, 1919 M Street, N.W.,

Washington, D.C. 20554. The applicant must also submit a copy of the

application simultaneously to (i) the Department of Justice c/o Donald

J. Russell, Telecommunications Task Force, Antitrust Division, Room

8205, 555 Fourth Street, NW., Washington, D.C. 20001, (ii) the relevant

State regulatory commission, and (iii) the Commission's copy

contractor, ITS, Inc., 2100 M Street, N.W., Suite 140, Washington, D.C.

20037, tel. (202) 857-3800.

B. Preliminary Matters

Section 271(d)(3) states that ``[t]he Commission shall not approve

the authorization requested in an application * * * unless it finds''

three specified conditions to be met. We expect that a section 271

application, as originally filed, will include all of the factual

evidence on which the applicant would have the Commission rely in

making its findings thereon. In the event that the applicant submits

(in replies or ex parte filings) factual evidence that changes its

application in a material respect, the Commission reserves the right to

deem such submission a new application and start the 90-day review

process anew. All factual assertions made by any applicant (or any

commenter) must be supported by credible evidence or will not be

entitled to any weight.

Because the statute affords us only 90 days to review the

application, we encourage the applicant to meet with likely objectors

in order to attempt to narrow the issues in dispute. As noted in

Section C of this Public Notice, we require that either the application

itself or a supplemental statement filed within five days after the

application contain a signed statement that describes efforts that the

applicant has made to narrow the issues in dispute and the results of

those efforts.

C. Content of Applications

Applications shall conform to the Commission's general rules

relating to applications. As noted above, applications shall have two

parts: (1) a Brief in Support of Application by [Bell company name] for

Provisions of In-Region, InterLATA Services in [State name] and (2) any

supporting documentation, such as records of State proceedings,

interconnection agreements, affidavits, etc. The Brief in Support may

not exceed 100 pages. There is no page limit, however, on supporting

documentation.

The Brief in Support should contain the following items:

(a) a table of contents;

(b) a concise summary of the substantive arguments presented in the

Brief;

(c) a statement identifying all of the negotiations and/or

arbitrations under section 252, including the dates on which the

agreements were approved under section 252 and the status of any

federal court challenges to the agreements pursuant to section

252(e)(6);

(d) a statement identifying how the applicant meets the

requirements of section 271(c)(1), including a list of the specific

agreements on which the applicant bases its application if it

[[Page 68042]]

intends to rely on a subset of the list set forth in item (c) above;

(e) a statement summarizing the status and findings of the relevant

State proceedings (if any) examining the applicant's compliance with

section 271 or portions thereof;

(f) a statement describing the efforts the applicant has made to

meet with likely objectors to narrow the issues in dispute and the

results of those efforts (as indicated above, this statement may be

filed separately from the application; but not later than five days

after the filing of the application);

(g) all legal and factual arguments that three requirements of

section 271(d)(3) have been met, supported as necessary with selected

excerpts from the supporting documentation (with appropriate citations)

(Item (g) is obviously the core item of the Brief in Support, and may

be quite lengthy. It may help to divide it, therefore, into three

subsections, one corresponding to each of three requirements set forth

in section 271(d)(3));

(h) an Anti-Drug Abuse Act certification as required by 47 CFR

Sec. 1.2002; and

(i) an affidavit signed by an officer or duly authorized employee

certifying that all information supplied in the application is true and

accurate.

The name of the applicant, the date the application is filed, and

the State to which it relates should appear in the upper right-hand

corner of each page of the Brief in Support.

As for the supporting documentation, we require that it contain, at

a minimum, the complete public record, as it exists on the date of

filing, of the relevant State proceedings (if any) examining the

applicant's compliance with section 271 or portions therof. In

addition, supporting documentation, including any records of

interconnection agreements, affidavits, etc., shall be provided in

appendices, separated by tabs and divided into volumes as appropriate.

D. Comments by Interested Third Parties

After an application has been filed, the Common Carrier Bureau will

issue a public notice (Initial Public Notice) establishing the specific

due dates for the various filings set forth below. Simultaneously with

the issuance of the Initial Public Notice, the Bureau will notify the

Department of Justice and the affected State of our receipt of the

application. Interested third parties will have approximately 20 days

from the issuance of the Initial Public Notice to file comments in

opposition or support, which may not exceed 50 pages. The specific due

date for comments will be set forth in the Initial Public Notice. The

name of the commenter, the name of the applicant, and the State to

which the application relates should appear in the upper right-hand

corner of each page. Supporting documentation is welcome without page

limits. To file comments (or any other filing set forth below) in a

section 271 proceeding, commenters need to follow the applicable

procedures outlined in section A of this Public Notice.

E. State Commission and Department of Justice Written Consultations

Many State commissions have already commenced proceedings to

examine Bell company compliance with section 271 or portions thereof.

In light of this fact and in light of the shortness of the 90-day

period for deciding a section 271 application, we require that the

relevant State commission file any written consultation not later than

approximately 20 days after the issuance of the Initial Public Notice.

The specific due date for the State's written consultation will be set

forth in the Initial Public Notice. The relevant State commission shall

also follow the applicable procedures outlined in section A of this

Public Notice.

Any written consultation by the Department of Justice (which, by

the Act's express terms, must become part of the record) must be filed

not later than approximately 35 days after the issuance of the Initial

Public Notice. The specific due date for the Department's written

consultation will be set forth in the Initial Public Notice. The

Department of Justice shall also follow the applicable procedures

outlined in section A of this Public Notice.

The State commission and the Department of Justice are also welcome

to file a reply pursuant to section F of this Public Notice, as well as

written ex parte submissions in accordance with section G of this

Public Notice.

F. Replies

All participants in the proceeding--the applicant, interested third

parties, the relevant State commission, and the Department of Justice--

may file a reply to any comment made by any other participant. Such

replies are limited to 35 pages and will be due approximately 45 days

after the Initial Public Notice is issued. The specific due date for

replies will be set forth in the Initial Public Notice. Reply comments

may not raise new arguments that are not directly responsive to

arguments other participants have raised, nor may the replies be

repetitive of arguments made by that party in the application or

initial comments. The name of the submitter, the name of the applicant

(if different), and the State to which the application relates should

appear in the upper right-hand corner of each page. Supporting

documentation is welcome without page limits.

G. Ex Parte Rules--Non-Restricted Proceeding

Because of the broad policy issues involved, section 271

application proceedings initially will be considered non-restricted

proceedings. Accordingly, ex parte presentations will be permitted,

provided they are disclosed in conformance with Commission ex parte

rules. Because of the statutory timeframe, however, we strongly

encourage parties to set forth their views comprehensively in the

formal filings specified above (e.g., the Brief in Support,

oppositions, supporting comments, etc.) and not to rely on subsequent

ex parte presentations. In any event, parties may not file more than a

total of 20 pages of written ex parte submissions. This 20-page limit

does not include: (1) Written ex parte submissions made solely to

disclose an oral ex parte contact; (2) written material submitted at

the time of an oral presentation to Commission staff that provides a

brief outline of the presentation; (3) written material filed in

response to direct requests from Commission staff; or (4) written

factual exhibits. Ex parte submissions in excess of the 20-page limit

will not be considered part of the record.

For purposes of these proceedings, and in light of the explicit

role the Act give to the Department of Justice and the State

commissions under section 271, any oral ex parte presentations from

the Department of Justice and the relevant State commission will be

deemed to be exempt ex parte presentations. To the extent that we

obtain through such oral ex parte presentations new factual information

on which we may rely in our decision-making process, the party

submitting the information (the Department of Justice or the relevant

State commission) shall prepare a summary for inclusion in the record

in accordance with Commission rules, unless such a summary is being

prepared by Commission staff. We also waive any page limits for written

ex parte submissions by the Department of Justice or the relevant State

commission.

Notwithstanding the above, the Commission may, by subsequent public

notice, prohibit all communication with Commission personnel regarding

the application during a seven-day period preceding the anticipated

release date of the Commission's order regarding the

[[Page 68043]]

application. On this last point, we note that the notice and comment

and effective date provisions of the Administrative Procedure Act are

not applicable to these procedural requirements and policies. See 5

U.S.C. Sec. 553 (b), (d).

This Public Notice contains new information collections subject to

the Paperwork Reduction Act of 1995. Accordingly, we are presently

requesting emergency approval from the Office of Management and Budget

for these collections. When the Commission receives such approval, it

will issue a Public Notice to that effect, after which the procedural

requirements and policies contained herein will become effective.

Federal Communications Commission.

LaVera F. Marshal,

Acting Secretary.

[FR Doc. 96-32762 Filed 12-24-96; 8:45 am]

BILLING CODE 6712-01-P