[Federal Register Volume 62, Number 202 (Monday, October 20, 1997)]
[Notices]
[Pages 54456-54460]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-27698]
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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]
BILLING CODE 6712-01-P