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

FEDERAL COMMUNICATIONS COMMISSION

[FCC 97-330]

Revised Procedures for Bell Operating Company Applications Under

New Section 271 of the Communications Act

AGENCY: Federal Communications Commission.

ACTION: Notice.

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SUMMARY: The Commission has released a public notice (notice) which

revises 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. 271 (Act). These

procedures originally were set out on a public notice released December

6, 1996 (62 FR 68040 (December 26, 1996)). The notice revises those

procedures and policies and supersedes the December 6, 1996 public

notice.

FOR FURTHER INFORMATION CONTACT: Florence Grasso, Common Carrier

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

SUPPLEMENTARY INFORMATION:

Paperwork Reduction Act

OMB Control Number: 3060-0756.

Expiration Date: 03/31/98.

Title: Revised 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:

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

Total

Number of annual

Information collection respondents Annual hour burden per response burden

(approximately) (hours)

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

Submission of applications by the BOCs......... 7 125 hours per application 7 6,125

(companies) x 7 (estimated

filings each) x 120 (hours).

Submission of written consultations by the 49 120 hours........................ 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).

Submission of written comments by interested 75 25 hours......................... 1,875

third parties.

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

Total Annual Burden: 18,780.

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 97-330)

on September 19, 1997 which revised 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. 271 (Act).

Synopsis of Public Notice

A. Application Filing Requirements

Under section 271, the Bell Operating Companies must file

applications to provide in-region interLATA services on a state-by-

state basis. By ``application,'' we mean: (1) A stand-alone document

[[Page 54457]]

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.

Under the revised procedures established in this Public Notice,

applicants must file at least twelve copies of each section 271

application with the Commission to be distributed as follows:

(1) Applicants must file an original and six copies of each section

271 application with the Office of the Secretary at the Federal

Communications Commission. If the applicant wants each Commissioner to

receive a copy of the section 271 application, the applicant should

file an original plus eleven copies with the Office of the Secretary.

The applicant must also submit the application on a computer diskette

as described below. The original, the six (or, if applicable, eleven)

copies, and the 3.5 inch computer diskette described below should be

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

Room 222, 1919 M Street N.W., Washington, D.C. 20554.

(2) In addition, applicants must submit five copies of the section

271 application to Janice Myles, Policy and Program Planning Division,

Common Carrier Bureau, Federal Communications Commission, Room 544,

1919 M Street, N.W., 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, N.W.,

Washington, D.C. 20001; (ii) the relevant state regulatory commission;

and (iii) the Commission's copy contractor, ITS, Inc., 1231 20th

Street, N.W., Washington, D.C. 20036, tel. (202) 857-3800.

The 3.5 inch computer diskette submitted to the Commission should

be formatted in WordPerfect 5.1. It should contain the Applicant's

Brief in Support. 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 specifying which materials are not contained on

the disk and 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.

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. As stated in our December 6th

public notice, 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. An

applicant may not, at any time during the pendency of its application,

supplement its application by submitting new factual evidence that is

not directly responsive to arguments raised by parties commenting on

its application. Thus, an applicant may not submit factual evidence

gathered after the applicant's initial filing. The applicant, however,

may submit new factual evidence if the sole purpose of that evidence is

to rebut arguments made, or facts submitted. But in no event shall such

evidence post-date the filing of the relevant comments. In the event

that the applicant submits new or post-dated evidence in replies or ex

parte filings, we reserve the right to start the 90-day review process

anew or to accord such evidence no weight in making our determination.

All factual assertions made by any applicant (or any commenter) must be

supported by credible evidence, or they may not be entitled to any

weight. Such factual assertions, as well as expert testimony, submitted

by any party must also be supported by an affidavit or verified

statement of a person or persons with personal knowledge thereof.

Applicants and participants in section 271 proceedings also have an

obligation to present their position in a clear and concise manner. In

the section 271 proceedings conducted so far, each application--as well

as some of the subsequent responsive filings--totalled several thousand

pages. In addition, certain parties have included substantive arguments

in affidavits or other supporting materials, rather than in their legal

briefs. As a result, in some cases, we have found it burdensome and

time-consuming to determine the positions of parties. Because of the

shortness of the 90-day review period, we believe that it is necessary

to make the section 271 review process as efficient as possible,

consistent with the requirements of the statute. We therefore require

applicants and commenting parties to make all substantive legal and

policy arguments in a legal brief (i.e., Applicant's Brief in Support,

comments in opposition or support, reply comments, ex parte filings).

The Commission retains the authority to strike, or to decline to

consider, substantive arguments that appear only in affidavits or other

supporting documentation. We note that the United States Court of

Appeals for the District of Columbia Circuit has found that the

Commission ``need not sift pleadings and documents to identify''

arguments that are not ``stated with clarity.'' It is the petitioner

who has the ``burden of clarifying its position'' before the agency.

This duty is even more crucial in the context of section 271

proceedings, because of the limited period in which the agency has to

review section 271 applications. We recognize, however, that the

question of whether an applicant has satisfied the requirements of

section 271 raises numerous complex and fact-intensive issues, which

may necessitate lengthy filings in support of or in opposition to an

application. In order to ensure that applicants and other participants

in section 271 proceedings have the ability to present their positions

fully, we have increased the page limits for the Applicant's Brief in

Support and third party comments and replies, and we have eliminated

the page limits for applicants' replies, as noted below. In addition,

we expect that applicants and other participants in section 271

proceedings will continue to use affidavits and other supporting

documentation to support factual and legal assertions made in their

legal briefs, to provide expert testimony in support of the positions

articulated in their briefs, and to clarify detailed factual issues.

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 an applicant submit, either in the

application itself or in a supplemental statement within five days

after the application is filed, 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

[[Page 54458]]

applications. As noted above, applications shall have two parts: (1) A

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

In-Region, InterLATA Services in [state name]; and (2) any supporting

documentation, such as records of state proceedings, interconnection

agreements, affidavits, etc. The Applicant's Brief in Support may not

exceed 125 pages. The table of contents, summary of argument, and list

of appendices (items (a), (b), and (i) below) shall not be counted in

determining the length of the Brief in Support. There is no page limit

on supporting documentation, but, as discussed above, the applicant may

not make substantive legal or policy arguments in its 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 agreements that the

applicant has entered into pursuant to 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 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 the 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 portion 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 the three requirements set

forth in section 271(d)(3).);

(i) A list of all appendices (including affidavits) and the

location of and subjects covered by each of those appendices;

(h) The name, address, and phone number of the person who will

address inquiries relating to access (subject to the terms of any

applicable protective order) to any confidential information submitted

by the applicant;

(i) An Anti-Drug Abuse Act certification as required by 47 CFR

Sec. 1.2002; and

(j) An affidavit signed by an officer or duly authorized employee

certifying that all information supplied in the application is true and

accurate to the best of his or her information and belief.

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 thereof. 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.

Each volume shall contain a table of contents that lists the subject of

each tabbed section of that volume.

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. The initial public

notice will also establish procedures for the treatment of confidential

information submitted by participants (including the applicant, the

Department of Justice, and the relevant state commission).

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 100 pages.

We are increasing the page limit for initial comments from 50 pages to

100 pages in the expectation that parties will include all substantive

arguments in their legal brief. We reiterate that the Commission may

strike or decline to consider substantive arguments made only in

affidavits or other supporting documentation. The specific due date for

comments will be set forth in the initial public notice. We retain

discretion to adjust the due date for comments and replies on a case-

by-case basis to ensure that interested third parties have sufficient

time to review and comment on each application. We strongly discourage,

and will take appropriate steps to prevent, an applicant from

attempting to limit the time for interested third parties to review an

application (e.g., by filing on a Friday or the day before a national

holiday). 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. Comments in support or opposition shall

also include a table of contents, a concise summary of the arguments

presented in the comments, and a list of all appendices and the

location of and subjects covered by each of those appendices. None of

these portions of the comments shall be counted in determining the

length of the comments. To file comments or replies (or any other

filing set forth below) in a section 271 proceeding, commenters must

follow the applicable procedures outlined in section A of this public

notice.

Commenters shall not incorporate by reference, in their comments or

replies, entire documents or significant portions of documents that

were filed in other proceedings, such as comments filed or arguments

made in a previous section 271 proceeding. Although commenters are

permitted to note arguments that were presented in earlier filings,

they must provide a complete recitation in their current filing of any

argument that they wish the Commission to consider.

There is no page limit on supporting documentation. As discussed in

section B of this public notice, however, commenters must make all

substantive legal and policy arguments in their comments, rather than

in supporting documentation. 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. Each volume shall contain a table of contents

that lists the subject of each tabbed section of that volume.

If a commenter submits confidential information to the Commission,

it shall include in a cover letter to the Commission the name, address,

and phone number of the person who will address inquiries regarding

access to the confidential information by other participants in the

proceeding (subject to the terms of any applicable protective order).

[[Page 54459]]

E. State Commission and Department of Justice Written Consultations

Many state commissions have already commenced proceedings to

examine Bell Operating 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 intial public notice.

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

forth in the intial 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 intial

public notice. The specific due date for the Department's written

consultation will be set forth in the intial 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 H 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 will be due approximately 45 days after the intial public

notice is issued. The specific due date for replies will be set forth

in the intial public notice. All replies except that of the applicant

are limited to 50 pages. There is no page limit for the applicant's

reply.

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. Replies shall also

include a table of contents, a concise summary of the arguments

presented in the comments, and a list of all appendices and the

location of and subjects covered by each of those appendices. None of

these portions of a reply shall be counted in determining the length of

the reply.

The applicant's and third parties' reply comments may not raise new

arguments or include new data that are not directly responsive to

arguments other participants have raised, nor may the replies merely

repeat arguments made by that party in the application or initial

comments. An applicant may submit new factual evidence in its reply if

the sole purpose of that evidence is to rebut arguments made, or facts

submitted, by commenters, provided the evidence covers only the period

placed in dispute by commenters and in no event post-dates the filing

of the relevant comments. In addition, as discussed in section D of

this public notice, participants are not permitted, in their replies,

to incorporate by reference entire documents or significant portions of

documents that were filed in other proceedings.

There is no page limit on supporting documentation. As discussed in

section B of this public notice, however, participants submitting

replies must make all substantive legal and policy arguments in their

replies, rather than in affidavits or other supporting documentation.

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.

Each volume shall contain a table of contents that lists the subject of

each tabbed section of that volume.

G. Motions

Because of the shortness of the 90-day period to review section 271

applications, a dispositive motion filed with the Commission in a

section 271 proceeding (e.g., motion to dismiss) will be treated as an

early-filed pleading and will not be subject to a separate pleading

cycle, unless the Commission or Bureau determines otherwise in a public

notice issued after the motion is filed. We generally expect, however,

that such a separate pleading cycle will not be necessary. Thus, in

general, dispositive motions filed before the due date for third party

comments will be treated as early-filed comments; dispositive motions

filed after the due date for third party comments but before the due

date for replies will be treated as early-filed replies; and

dispositive motions filed after the due date for replies will be

treated as ex parte submissions. Such motions will be counted toward

the applicable page limit for the submitting party, as established in

this public notice.

Non-dispositive motions (e.g., motions to strike) will be subject

to the default pleading cycle in section 1.45 of our rules, unless the

Commission or Bureau determines otherwise in a public notice. Because

of the expedited nature of section 271 proceedings, section 1.4(h) of

our rules will not apply to motions filed in section 271 proceedings.

Thus, parties will not be allowed an extra three days (beyond the time

permitted in section 1.45) to respond to non-dispositive motions and

oppositions thereto, regardless of whether the filing was served on the

party by mail. In lieu of that rule, however, a party submitting a non-

dispositive motion must, on the day of filing, serve that motion either

by hand or by facsimile on any party whose filing is the subject of the

motion. In addition, parties must submit non-dispositive motions and

oppositions to such motions to the Commission on a 3.5 inch computer

diskette formatted in WordPerfect 5.1 (as well as in hard copy form).

All filings submitted on diskette will be posted on the internet for

public inspection at http://www.fcc.gov. Such motions, oppositions, and

replies will not be counted toward the submitting party's page limit.

H. Ex Parte Rules--Permit-But-Disclose Proceeding

Because of the broad policy issues involved, section 271

application proceedings initially will be considered permit-but-

disclose 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. The Commission retains the right not to consider as

part of the record ex parte submissions in excess of the 20-page limit.

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

role the Act gives 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

[[Page 54460]]

presentations. To the extent that we obtain through such oral ex parte

presentations new factual information on which we subsequently rely in

our decision-making process, we will either request the Department of

Justice or the relevant state commission to disclose or disclose

ourselves such new factual information in the record no later than the

time we release our decision. There are no page limits on 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 application.

I. FCC Notice to Individuals Required by the Privacy Act and the

Paperwork Reduction Act

Pursuant to Section 271 of the Communications Act of 1934, as

amended, the Bell Operating Companies must file applications to provide

in-region interLATA services on a state-by-state basis. State

regulatory commissions must file written consultations relating to the

applications not later than approximately 20 days after the issuance of

an Initial Public Notice establishing specific due dates for various

filings. Interested third parties may file comments on the applications

not later than approximately 20 days after the issuance of the Initial

Public Notice. The Department of Justice must file written

consultations relating to the applications not later than approximately

35 days after the issuance of the Initial Public Notice. All of the

information would be used to ensure that the Bell Operating Companies

have complied with their obligations under the Communications Act of

1934, as amended, before being authorized to provide in-region,

interLATA services pursuant to section 271. Obligation to respond is

not mandatory.

We have estimated that each response to this collection of

information will take, on average, 250 hours. Our estimate includes the

time to read the instructions, look through existing records, gather

and maintain required data, and actually complete and review the form

or response. If you have any comments on this estimate, or on how we

can improve the collection and reduce the burden it causes you, please

write the Federal Communications Commission, AMD-PERM, Washington, DC

20554, Paperwork Reduction Project (3060-0756). We will also accept

your comments via the Internet if you send them to [email protected].

Please do not send completed application forms to this address.

Remember--You are not required to respond to a collection of

information sponsored by the Federal government, and the government may

not conduct or sponsor this collection, unless it displays a currently

valid OMB control number or if we fail to provide you with this notice.

This collection has been assigned an OMB control number of 3060-0756.

This notice is required by the Privacy Act of 1974, Public Law 93-

579, December 31, 1974, 5 U.S.C. Section 552a(e)(3) and the Paperwork

Reduction Act of 1995, Public Law 104-13, October 1, 1995, 44 U.S.C.

3507.

Federal Communications Commission.

William F. Caton,

Acting Secretary.

[FR Doc. 97-27698 Filed 10-17-97; 8:45 am]

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