[Federal Register Volume 67, Number 200 (Wednesday, October 16, 2002)]
[Rules and Regulations]
[Pages 63850-63851]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-26238]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 1, 61, and 69

[CC Docket No. 96-187; FCC 02-242]


Implementation of Section 402(b)(1)(A) of the Telecommunications 
Act of 1996

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document the Commission declined to revise its 
streamlined tariff procedures in the manner requested by the AT&T 
Corporation, MCI Telecommunications Corporation, and Southwestern Bell 
Telephone Company. The intended effect of this document is to maintain 
the existing Commission rules regarding the filing of tariffs on a 
streamlined basis.

FOR FURTHER INFORMATION CONTACT: Joi Roberson Nolen, Wireline 
Competition Bureau, 202-418-1537.

SUPPLEMENTARY INFORMATION: In this document, the Commission denies the 
petitions for reconsideration filed by AT&T Corporation (AT&T), MCI 
Telecommunications Corporation (MCI), and Southwestern Bell Telephone 
Company (SWBT) (hereinafter ``the petitioners'') regarding the 
Commission's 1997 Streamlined Tariff Report and Order, 12 FCC Rcd 2170 
(1997), 62 FR 5757-03, February 7, 1997. The Commission also denies the 
requests for clarification filed by AT&T and MCI. The Streamlined 
Tariff Report and Order implemented amendments to section 204(a) of the 
Communications Act (Act) made by the Telecommunications Act of 1996 
(1996 Act). Specifically, the 1996 Act allowed local exchange carriers 
(LECs) to file new or revised charges, classifications, regulations or 
practices with the Commission on a streamlined basis. See 47 U.S.C. 
204(a)(3). In particular, the Streamlined Tariff Report and Order 
implemented the ``deemed lawful'' tariff provisions that the 1996 Act 
added to section 204(a)(3) of the Act. AT&T and MCI sought 
reconsideration of the Commission's conclusion that ``deemed lawful'' 
status confers a conclusive presumption of lawfulness. In their 
petitions, AT&T and MCI assert that the Commission should have 
interpreted the phrase ``deemed lawful'' as creating a rebuttable 
presumption, i.e., a tariff filed on a streamlined basis that becomes 
effective without suspension and investigation is presumed lawful, but 
that presumption may be rebutted. In support of their position, AT&T 
and MCI argue that the ``deemed lawful'' language in section 204(a)(3) 
is ambiguous. Subsequent to the filing of the petitions for 
reconsideration, the United States Court of Appeals for the District of 
Columbia Circuit considered the meaning of ``deemed lawful'' in section 
204(a)(3) in the context of a section 208 complaint case. ACS of 
Anchorage, Inc. v. FCC, 290 F. 3d 406, 412 (D.C. Cir. 2002). The court 
focused on whether there was a distinction to be made between rates and 
rates of return for determining whether the deemed lawful standard was 
applicable to the case. In this context, however, the court 
specifically considered the Commission's statements in the Streamlined 
Tariff Report and Order that the term ``deemed lawful'' was 
``unambiguous'' in the ``consistent'' interpretation of the courts. Id. 
That consideration led the court to say, ``[t]his being so [that case 
law consistently found deemed lawful to be unambiguous], we find 
section 204(a)(3) equally unambiguous in banning refunds purportedly 
for rate-of-return

[[Page 63851]]

violations.'' Id. Given the court's conclusion, the Commission cannot 
adopt the reading urged by AT&T and MCI. The Commission thus denies the 
petitions filed by AT&T and MCI with respect to this issue.
    The Commission also, however, denies SWBT's petition with respect 
to the issue of the Commission's interpretation of ``deemed lawful.'' 
In its petition, SWBT asserts that ``deemed lawful'' creates a safe 
harbor in which LECs can operate without fear of an attack on their 
rates or other provisions once the tariffs become effective. The 
court's holding was limited to the question of refund liability for 
rates that were ``deemed lawful'; it in fact acknowledged that the 
Commission might order prospective relief ``[i]f a later reexamination 
shows them to be unreasonable.'' See ACS of Anchorage, Inc. v. FCC, 290 
F. 3d at 411. Therefore, a rate that is deemed lawful within the 
meaning of section 204(a)(3) may be the subject of a complaint alleging 
that the rate has become unjust and unreasonable, and the Commission by 
order may prescribe a new rate to be effective prospectively, even if 
the Commission can not require a carrier to make refunds. The 
Commission also denies reconsideration and clarification of a number of 
other issues related to streamlined tariff filings.
    Accordingly, it is ordered, pursuant to sections 1, 2, 4(i), 4(j), 
201-205, and 405 of the Act of 1934, as amended, 47 U.S.C. 151, 152, 
154(i), 154(j), 201-205, and 405, that the petitions for 
reconsideration filed by AT&T Corp., MCI Communications Corp., and 
Southwestern Bell Telephone Company are hereby denied.

List of Subjects

47 CFR Part 1

    Administrative Practices and Procedures, Communications common 
carriers, Telecommunications.

47 CFR Part 61

    Access Charges, Communications common carriers, Telephone.

47 CFR Part 69

    Communications common carriers, Telephone.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 02-26238 Filed 10-15-02; 8:45 am]
BILLING CODE 6712-01-P