[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