[Federal Register Volume 62, Number 67 (Tuesday, April 8, 1997)]
[Notices]
[Pages 16807-16808]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-9047]


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FEDERAL COMMUNICATIONS COMMISSION

[CC Docket No. 96-149; DA 97-666]


Comments Requested To Aid Commission in Expedited Reconsideration 
of Interpretation of Section 272(e)(4)

AGENCY: Federal Communications Commission.

ACTION: Notice.

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SUMMARY: The Commission released a Public Notice which establishes a 
pleading cycle for comments on specific issues relating to the scope 
and nature of the restrictions imposed by section 272(e)(4). Certain 
Bell Operating Companies (BOCs) filed a motion with the United States 
Court of Appeals for the District of Columbia Circuit seeking summary 
reversal of the Commission's interpretation of section 272(e)(4) in its 
First Report and Order and Notice of Proposed Rulemaking in this docket 
(62 FR 2927 (January 21, 1997) and 62 FR 2991 (January 21, 1997)). The 
Commission asked that it be given the opportunity to reconsider its 
interpretation since some of the BOC arguments advanced in their motion 
had not been clearly presented to the Commission in the rulemaking 
proceeding. On March 31, 1997, the court granted the Commission's 
request and directed it to reconsider its position within 90 days. The 
Commission wishes to build a complete record on these issues.

DATES: Comments are due on or before April 17, 1997, and reply comments 
are due on or before April 24, 1997.

ADDRESSES: Comments and reply comments should be sent to Office of the 
Secretary, Federal Communications Commission, 1919 M Street, N.W., Room 
222, Washington, DC 20554, with a copy to Janice Myles of the Common 
Carrier Bureau, 1919 M Street, N.W., Room 544, Washington, DC 20554. 
Parties should also file one copy of any documents filed in this docket 
with the Commission's copy contractor, International Transcription 
Services, Inc., 2100 M Street, N.W., Suite 140, Washington, DC 20037.

FOR FURTHER INFORMATION CONTACT: David Ellen, Common Carrier Bureau, 
Policy and Program Planning Division, (202) 418-1580.

SUPPLEMENTARY INFORMATION:

Synopsis of Public Notice

    1. In a recent rulemaking, the Commission construed the scope of 
section 272(e)(4) of the Communications Act of 1934, as amended by the 
Telecommunications Act of 1996. The Commission concluded that section 
272(e)(4) is not a grant of authority for a Bell Operating Company 
(BOC) to provide interLATA services prior to receiving section 271 
authority. The Commission further concluded that section 272(e)(4) is 
not a grant of authority for a BOC to provide interLATA services, 
including wholesale interLATA services provided to its interLATA 
affiliate, after receiving section 271 authority. Following the 
rulemaking, certain BOCs filed a motion with the United States Court of 
Appeals for the District of Columbia Circuit seeking summary reversal 
of the Commission's interpretation of section 272(e)(4). The Commission 
responded that, among other things, some of the arguments that the BOCs 
advanced in their motion for summary reversal had not been clearly 
presented to the Commission in the rulemaking proceeding. The 
Commission, therefore, asked that it be given the opportunity to 
reconsider, in light of these arguments, its interpretation of section 
272(e)(4) prior to judicial review of those arguments. On March 31, 
1997, the court granted the Commission's request, concluding that 
``[t]he merits of the parties' positions are not so clear as to warrant 
summary action.'' The court noted that it expects that ``the Commission 
will adhere to its proposal to complete any further proceedings and 
adopt a revised order within 90 days of the date of this order.''
    2. In this Public Notice, to aid the Commission in meeting its 
commitment to reconsider promptly its interpretation of section 
272(e)(4), the Common Carrier Bureau seeks comment on certain specific 
issues relating to section 272(e)(4). Parties should feel free to 
address any of the other issues previously addressed before the 
Commission or the court that are relevant to this inquiry.
    3. Section 272(a) states, among other things, that BOCs ``may not 
provide'' directly ``[o]rigination of [in-region] interLATA 
telecommunications services.'' Before the court, the BOCs argued that 
their reading of section 272(e)(4) does not conflict with section 
272(a) because when a BOC provides in-region interLATA 
telecommunications services on a wholesale basis, it does not 
``[o]riginat[e]'' such services. We seek comment on what precisely it 
means to ``originate'' an interLATA telecommunications service. Is 
``origination'' strictly a retail concept? Commenting parties should 
also discuss the legal implications, if any, of the fact that section 
271(b)(1), which prohibits a BOC or its affiliate from providing

[[Page 16808]]

``interLATA services originating in any of its in-region States'' prior 
to FCC approval, also uses a form of the term ``originate.''
    4. What is the legal significance, if any, of the fact that section 
272(e)(4) applies to intraLATA services and facilities as well as 
interLATA services and facilities? Before the court, for example, AT&T 
argued that the use of the term ``intraLATA'' demonstrates that section 
272(e)(4) is not a grant of authority because, among other things, ``a 
BOC needs no grant of federal statutory authority to provide intraLATA 
services.''
    5. Are the principal concerns that underlie the separate affiliate 
requirement of section 272--discrimination and cost misallocation by a 
BOC--less serious in the context of the wholesale provisioning of in-
region interLATA services to affiliates than in the context of the 
direct retail provisioning of such services, at least where, as here, 
any such provisioning is required to take place in a non-discriminatory 
manner? If they are less serious, are they nonetheless serious enough 
to justify, as a policy matter, prohibiting such wholesale 
provisioning? Of what relevance, if any, is the fact that there was no 
exception to the interLATA services restriction contained in the 
Modified Final Judgment for wholesale interLATA services provided on a 
non-discriminatory basis, or that there presently is no wholesale 
interLATA services exception to section 271's prohibition on the 
provision of in-region interLATA services prior to FCC approval? At the 
same time, of what relevance, if any, is the fact that once a BOC has 
received section 271 approval and its interLATA affiliate is permitted 
to provide in-region interLATA services, the 1996 Act also allows the 
BOC to provide its interLATA affiliate various wholesale services and 
facilities, such as wholesale access services and wholesale access to 
unbundled network elements, so long as the BOC does so in a non-
discriminatory way and in arm's length transactions? What is the policy 
justification for not permitting the BOC to provide, in addition, 
wholesale interLATA services to its affiliate?
    6. Does the extent of concern for discrimination and cost 
misallocation depend, at least in part, on the particular kind of in-
region wholesale interLATA service a BOC seeks to offer? For example, 
does the extent of concern differ depending on whether the wholesale 
service being offered is a bundled end-to-end interLATA service or a 
interLATA service that merely transmits traffic from a point of 
presence in one LATA to a point of presence in another LATA? How would 
the non-discrimination requirement in section 272(e)(4) apply to these 
different kinds of wholesale interLATA services? Are there some kinds 
of services that, in practice, could not be provided in a non-
discriminatory manner? In their comments, BOCs should clarify precisely 
what kind of wholesale interLATA service they would seek to provide, if 
any, using the excess capacity on their official services networks.
    7. Interested parties should file an original and two copies of 
their comments by April 17, 1997, and reply comments by April 24, 1997, 
with the Secretary, FCC, 1919 M Street, N.W., Washington, DC 20554. A 
copy should also be sent to Janice Myles, Common Carrier Bureau, FCC, 
Room 544, 1919 M Street, N.W., Washington, DC 20554, and to the 
Commission's contractor for public service records duplication, ITS, 
Inc., 2100 M Street, N.W., Suite 140, Washington, D. C. 20037. Parties 
filing comments and reply comments should include the Commission docket 
number, CC Docket No. 96-149, on their pleadings. Comments and reply 
comments will be available for public inspection during regular 
business hours in the FCC Reference Center, Room 239, 1919 M Street, 
N.W., Washington, D. C. 20554.
    8. We will continue to treat this proceeding as non-restricted for 
purposes of the Commission's ex parte rules. See generally 47 CFR 
1.1200-1.1216.

Federal Communications Commission.
William F. Caton,
Acting Secretary.
[FR Doc. 97-9047 Filed 4-7-97; 8:45 am]
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