WPCN 2BJK Courier3|P )Xx6X@DQX@ X4 X #XP\  P6Q XP#fX@26HCourier New (TT)Times New Roman (TT)Times New Roman (Bold) (TT) P6QXP#3|jTimes New Roman (TT)^09CSS999S]+9+/SSSSSSSSSS//]]]Ixnnxg]xx9?xgxx]xn]gxxxxg9/9MS9ISISI9SS//S/SSSS9?/SSxSSIP!PZ9+ZM999+99999999S/xIxIxIxIxIlnIgIgIgIgI9/9/9/9/xSxSxSxSxSxSxSxSxSxSxIxSxRxSxSxS]SxIxIxInInInZnIxigIgIgIgIxSxSxSxZxSxZxS9/9S999Su]ZZxSg/gCg9g9g/xSbxSxSxSxSxn9n9n9]?]?]?]ZgFg/gMxSxSxSxSxSxSxxZgIgIgIxSg9xS]?g9xSi+SS88WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN8HH"&H>XHH8HB8>HH^HH>"".2",2,2,"222N2222"&22H22,006"6."""""""""""2H,H,H,H,H,XAB,>,>,>,>,""""H2H2H2H2H2H2H2H2H2H2H,H2H1H2H2H282H,H,H,B,B,B6B,H?>,>,>,>,H2H2H2H6H2H6H2""2"""2F866H2>>(>">">H2;H2H2H2H2XHB"B"B"8&8&8&86>*>>.H2H2H2H2H2H2^HH6>,>,>,H2>"H28&>"H2?22!!WFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN$<<$.2",2222`2 LL2 LL2L"",,2d""d<d<CCYYdCCddCYCdYzzzzCCCCqodYYYYYYYYYYY8888dddddddnddddddd2>@4@8S@C;"5@^2Coddȧ8CCdr2C28ddddddddddCCrrrdzNdzoȐC8CtdCdoYoYCdo8Co8odooYNCodddYO,Oh2CC!CCPRCdodddddȐYYYYYN8N8N8N8oddddooooddoddddzodddYYYYYYddddooPoNoNCNodo8RoodȐYYoNoNNF2ldCddddddd<d<CCoodCCddCoCddzzzzzzzzzzCCCCozdddddddYYYYY8888dddddddndddddYd2JZ>@A@OD@G$y.C8*XpC\  P6QP%7PC2X XP\  P6QXP.&7UC2XXU4  pQX.'y.G8*XNG4  pQ(5PC2X3XP*f9 xQXX)W!0(Xh0\  P6QhPI(!XHs,(\  P6Q,P"5@^(1<soliciting enduser customers on behalf of telecommunications companies, including IXCs,  X - xLthrough direct sales and telemarketing.D  {O-ԍXxId.  (#D On February 6, 1991, WIC entered into an agreement  x[with GLD in which it agreed to obtain customers for GLD's resold AT&T SDN service in return  X - xfor a commission for each customer it brought to GLD.Z  {O "-ԍXxId.; WIC Memorandum at 2. (#Z Thus, the end users that WIC brought  X -to GLD became "presubscribed" to GLD.$ , yO$-  0ԍXxPresubscription is the process by which each customer selects one PIC, from among several available  {OL%-  carriers, for the customer's phone line(s). Allocation Order, 101 FCC 2d at 911, 928. Thus, when a   customer dials "1," the customer accesses only the primary IXC's services. An end user can also access  {O&-other IXCs by dialing access codes. Id. at 911.(#PRESUBSCRIBE ",))qq<"Ԍ X- `  x6.` ` In April 1992, GLD began to receive a series of letters from AT&T reflecting  X- xdifficulties with GLD's resale account.x {Ob-ԍxBureau Order, 11 FCC Rcd at 3722; WIC Memorandum at Exhibits LP.x The letters were notices to GLD that it was behind in  xpayments and that AT&T would refuse to provide service to new GLD enduser customers and  xkterminate service to existing GLD customers if GLD did not make payments on the accounts  X-current.wZ {O-ԍxBureau Order, 11 FCC Rcd at 3722; WIC Memorandum at Exhibit P. w  Xv- ` bx7.` ` James J. McKeeff and other principals of GLD formed a new company in  X_- xDecember 1992.b_ {O -ԍXxBureau Order, 11 FCC Rcd at 3722. (#b The new company, NICE, acquired all of the stock in GLD and then  XH- xproceeded to change the underlying carrier serving GLD's customers from AT&T to Sprint.DH~ {Ow-ԍXxId. (#D  x>NICE made this change without informing GLD's enduser customers, although those same  xLcustomers were apparently informed in a letter dated March 1, 1993, that NICE had acquired all  X - xGLD stock.D  {O-ԍXxId. (#D Sprint submitted the orders it received from NICE to local exchange carriers  x(LECs) pursuant to NICE's written assurance that it was authorized to request these changes  xbecause the end users had selected GLD as their PIC, and NICE was the successorininterest to  X -GLD.t  {O-ԍxBureau Order, 11 FCC Rcd at 372223; WIC Memorandum at 34. t  X- ` x8.` ` WIC, upon facing the prospect of losing commissions for all of the customers it  x>brought to GLD/NICE, because of NICE's conversion from AT&T to Sprint, filed suit in the  xDistrict Court. The suit alleges that the defendants violated the Communications Act of 1934,  XK- xkas amended (the Act),SK4  {O0-ԍx47 U.S.C.  151, et. seq.S and the Civil RICO Act,E K  yO-ԍx18 U.S.C.  1961.E and engaged in tortious interference with  x^contractual relations, conversion, and breach of contract. The District Court referred  X-communications law issues to the Commission for resolution.!V  {O$"-ԍXxSee  note DISTRICT CT REFERRAL11, supra; Bureau Order, 11 FCC Rcd at 3723. (#ơ  X- ` 2x9.CCB 201B FINDING` ` The Bureau Order. The Bureau reviewed the evidence and arguments submitted  xby the parties and reached two conclusions. First, the Bureau found no persuasive support for  xWIC's claim that each of the defendants had violated the Commission's PICverification rules in  X- xconnection with GLD/NICE's change in its underlying network provider from AT&T to Sprint.b" {OE(-ԍXxBureau Order, 11 FCC Rcd at 3728. (#b "z",))qq"  xjSecond, the Bureau found that WIC had demonstrated that defendants GLD/NICE violated the  X- xjust and reasonable provisions of Section 201(b) of the Actc#Z yOb-  LԍXx47 U.S.C.  201(b). Section 201(b) provides, in pertinent part, that "[a]ll charges, practices, classifications,   zand regulations for and in connection with [interstate] communication service shall be just and reasonable  {O-. . . ." Id. (#c GLD 201  by failing to adequately inform its  X- xkenduser customers of the change in their underlying carrier from AT&T to Sprint.$ {Om-  \ԍXxBureau Order, 11 FCC Rcd at 372829. The Bureau found, based on the record, that NICE's switch from   AT&T to Sprint was a material change about which NICE did not inform its customers, despite having the    means and opportunity to do so. Based on these findings, the Bureau concluded that GLD/NICE's failure   to inform its customers of the change in underlying carriers constituted an unjust and unreasonable practice  {O -  >within the meaning of Section 201(b) of the Act. Id. WIC does not challenge these Bureau conclusions.  {OY -See, e.g., WIC Application at 1. (# WIC's  xApplication asks us to partially reverse the Bureau's first conclusion by declaring that Sprint  xviolated Section 64.1100 of the Commission's rules in connection with the orders it received from NICE and submitted to LECs.  X_-  III. CONTENTIONS AND DISCUSSION ă  X1- A.xApplication for Review  X -xContentions of the Parties  X - ` nx 10.64.1100 93` ` WIC asserts that the Bureau erred by concluding that WIC failed to establish that  X - xKSprint violated the Commission's PICchange rules and orders.Q% h  yO-ԍXxWIC Application at 13. (#Q According to WIC, the Bureau's  x=decision conflicts with the clear language of Section 64.1100, which states in relevant part that  x"[n]o IXC shall submit to a LEC a primary interexchange carrier (PIC) change order generated  xjby telemarketing unless and until the order has first been confirmed in accordance with [one of  Xb-the four specified confirmation] procedures[.]"&b  {O -  =ԍXx47 C.F.R.  64.1100 (1993). Assuming, arguendo, that Section 64.1100 is relevant to our resolution of the   yabovecaptioned matter, the 1993 version of the rule would apply because WIC's allegations relate to Sprint's  {O-  conduct in 1993. See Bureau Order, 11 FCC Rcd at 372325; see also WIC Application at 13. In   >addition, changes to Section 64.1100 that became effective after 1993 would not be dispositive as to the  {O/ -  outcome of this case. See Policies and Rules Concerning Unauthorized Changes of Consumers' Long  {O -  =Distance Carriers, CC Docket No. 94129, Report and Order, 10 FCC Rcd 9560 (1995) (LOA Order), recon.  {O!-  pending (Commission prescribed the general form and content of letters of agency or LOAs). The  {O"-  zCommission, sua sponte, stayed the LOA Order insofar as it extends the PICverification requirements to  {OW#-consumerinitiated "inbound" calls. See CC Docket No. 94129, Order, 11 FCC Rcd 856 (1995). (#  X4- ` x 11.` ` To prevail on its claim that Sprint violated Section 64.1100, WIC must, as a  xthreshold matter, establish that the orders Sprint received from NICE, a switchless reseller of  x=Sprint's common carrier interexchange service, and submitted to LECs were PICchange orders  xunder Section 64.1100. In examining WIC's allegations in this regard, the first question we must"&,))qq"  xdecide is, who is the PIC? More specifically, when end users select a switchless reseller as their  x1+ longdistance carrier, is the PIC nonetheless the underlying, resold facilitiesbased carrier?  xOr, is the switchless reseller that the end user selects the PIC, because of its proximate business relationship with the end user?  X- ` ox 12.` ` According to WIC, the orders that Sprint received from NICE and submitted to  xLECs were "PICchange orders," as this term is used in Section 64.1100, because these orders  xlisted Sprint's carrier identification code (CIC), thereby directing the LECs to switch NICE's end XH- x-user customers from AT&T to Sprint.R'H yO -ԍXxWIC Application at 34. (#R WIC asserts that AT&T and Sprint are the relevant PICs  xunder Section 64.1100 not GLD/NICE as the Bureau concluded because: (1) Sprint  xysubmitted the PICchange orders to the LECs; (2) only AT&T and Sprint CICs appeared on the  xPICchange order forms, (3) LEC records for NICE's end users reflect AT&T's CIC before Sprint  xsubmitted the PICchange orders and Sprint's CIC afterwards; and (4) the Commission does not  xrecognize switchless resellers, such as GLD/NICE, as PICs for purposes of its PICchange  X - xverification rules.b( X yO-ԍXxWIC Application at 24; WIC Reply at 2. (#b In support of this latter assertion, WIC states that the enduser customers it  xiobtained for GLD specifically contracted to use AT&T's SDN service by signing letters of agency  X- x(LOAs) that listed WIC and AT&T, but not GLD/NICE or Sprint.)Z yO)-  ԍXxWIC Application at 2. Specifically, the LOAs include language stating that the customer "hereby appoints   WATS International Corporation as agent for all telecommunications services associated with AT&T's  {O-programs." Bureau Order, 11 FCC Rcd at 3725; WIC Memorandum at 7. (#Ƅ According to WIC, these  xLOAs further demonstrate that these end users had selected AT&T as their PIC, and not  Xb-GLD/NICE.N*b  yO4-ԍXxWIC Application at 2.(#N  X4- ` nx 13.` ` Sprint answers that the orders it submitted to LECs for NICE were not PICchange  x>orders under Section 64.1100. Sprint avers that WIC's contentions are based on the flawed  X- x<notion that the end users' selection of GLD/NICE as their PIC can be ignored.R+ yOh-ԍXxSprint Opposition at 4. (#R Moreover, Sprint  xstates that WIC misrepresents the law when it asserts that switchless resellers have no status  X- xunder the Commission's PICverification rules.i,A  yO -ԍ xSprint Opposition at 35; Defendants Memorandum at 11. i Sprint contends that because the end users in  xquestion obtained their communications services from GLD and NICE, at rates which were set  X- xkby GLD and NICE, GLD and NICE were the relevant carriers under Commission precedent.T-  yO,$-ԍXxSprint Opposition at 34. (#T  xMoreover, Sprint avers that the Commission has specifically recognized that a switchless reseller  x=is the PIC of its customers even though it is unable to secure access services directly from the"a -,))qqn"  X- xLECs for its customers and cannot obtain carrier identification codes from BellCore.L. {Oy-ԍXxId. at 45. (#L Sprint  xadds that the Commission has also ruled that, because switchless resellers are prevented for  x-technical reasons from ordering access and PICchange services for their customers directly from  X-the LECs, they must order LEC services through the facilitiesbased IXCs.B/Z {O-ԍXxId.(#B  X- ` Bx 14.2-STEP LOA 1` ` Sprint explains that, in dealing with the change orders from NICE, it followed a  Xv- x<"2step LOA procedure" that the Commission has specifically endorsed.X0v yO -ԍXxSprint Opposition at 5. (#X Under this procedure,  xSprint states that it obtained from NICE LOAs confirming NICE's authority to provide IXC  xservice to the end users in question and designating Sprint to act as NICE's special agent for the  xysole purpose of submitting the orders to the LECs. Sprint states that, in those instances where  x{PICchange disputes arose, Sprint demanded that NICE also furnish it with the LOA that  xauthorized GLD/NICE as the end user's longdistance carrier. Sprint points out that, to the extent  xiNICE could not provide such documentation, Sprint refused to provide service for those enduser  X -customers.D1 | {O-ԍXxId. (#D  X - B. xHistory of Relevant Commission Rules  pp  Xy- ` $x15.OVERZEALOUS 1` ` The Commission's PICchange Rules and Orders. In its Allocation Order and  Xd- xsubsequent Reconsideration Order and Waiver Order,`2d {O#-ԍxSee note  ALLOC10 , supra. ` the Commission set forth rules and  XO- xprocedures for implementing equal access3O yO-  ԍXxEqual access for IXCs is that which is equal in type, quality and price to the access to local exchange  {Oh-  facilities provided to AT&T and its affiliates. United States v. American Tel. & Tel., 552 F. Supp. 131, 227  {O2-  (D.D.C. 1982), aff'd sub nom. Maryland v. United States, 460 U.S. 1001 (1983)(Modification of Final  {O-  Judgment or "MFJ"). "Equal access allows end users to access facilities of a designated [IXC] by dialing  {O-'1' only." Allocation Order, 101 FCC 2d at 911. (#Ʈ and customer presubscriptionp4OX  {OX -ԍXxSee note PRESUBSCRIBE24, supra. (#p to an IXC.5O {O!-  ԍXxPursuant to the MFJ, the Bell Operating Companies (BOCs) were ordered to provide, where technically  {O"-feasible, equal access to their customers by September 1986. Id.(# The  x]Commission's original allocation plan required IXCs to have on file a LOA signed by the  X!- xcustomer before submitting PIC change orders to the LEC on behalf of the customer.06!F yO&-  ԍXxAn LOA is a document, signed by the customer, which states that the customer has selected a particular  {O&-carrier as that customer's primary long distance carrier. Allocation Order, 101 FCC 2d at 929. (#(#X(#0 After  xconsidering claims by certain IXCs that this requirement would stifle competition because" 6,))qq("  xconsumers would not be inclined to execute the LOAs even though they agreed to change their  xPIC, the Commission later modified the requirement to allow IXCs to initiate PIC changes if they  X-have "instituted steps to obtain signed LOAs."Y7 {OK-ԍxWaiver Order, 101 FCC 2d at 942. Y  X- ` ox16.` ` In 1992, the Commission again revised its rules because it continued to receive  X- xcomplaints from consumers about unauthorized PIC changes.^8Z {O-ԍxPIC Change Order, 7 FCC Rcd at 103839.^ Specifically, while the  xNCommission recognized the benefits of permitting a telephonebased industry to rely on  x>telemarketing to solicit new business, it required IXCs to institute one of the following four  xconfirmation procedures before submitting PIC change orders generated by telemarketing: (1)  x<obtain the consumer's written authorization; (2) obtain the consumer's electronic authorization by  xuse of a tollfree number; (3) have the consumer's oral authorization verified by an independent  xthird party; or (4) send an information package, including a prepaid, returnable postcard, within  x=three days of the consumer's request for a PIC change, and wait 14 days before submitting the  xconsumer's order to the LEC, so that the consumer has sufficient time to return the postcard  X -denying, cancelling, or confirming the PIC change order.C9|  {O[-  ԍXxSee 47 C.F.R.  64.1100; PIC Change Order, 7 FCC Rcd at 1045. In 1995, the Commission prescribed   the general form and content of the LOA used to authorize a change in a customer's primary long distance  {O-  carrier. See LOA Order, 10 FCC Rcd at 956061. In February 1996, Congress passed and the President   signed the Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (1996). Neither of these   amendments govern the resolution of this case. Their effective dates are both well after the 1993 date that   WIC filed its complaint in the District Court, based on allegations about the defendants' conduct during 19911993. (#C  X- ` x17.OVERZEALOUS 2` ` The Commission adopted, and later modified, Section 64.1100 as a consumer  xprotection safeguard against the unauthorized conversion of a customer's IXC by "overzealous  Xb- xMcarrier telemarketing activities"?:Jb0  {OC-  /ԍXxSee PICChange Recon. Order, 8 FCC Rcd at 3217; PIC Change Order, 7 FCC Rcd at 1041. In the PIC  {O -  Change Order, the Commission adopted "independent third party verification" as one of the four verification  {O-  /procedures permissible under Section 64.1100. PIC Change Order, 7 FCC Rcd at 1045. In reaching this   Ldecision, the Commission declined the proposal of some commenters to allow IXCs to perform verifications  {Oi-  "inhouse" by salaried employees who earn no commissions based on telemarketing sales. Id. at 1041. The   kCommission also noted comments that permitting IXCs to use their own employees would undermine the   crucial purpose of the rule: to create independent, unambiguous evidence of customer choice and to  {O!-eliminate or reduce the abuses caused by overzealous carrier marketing activities. Id. (#?SAFEGUARD "by another IXC, an IXC resale carrier, or a subcontracted  XK- xtelemarketer.";KB {O>$-  ԍXxLOA Order, 10 FCC Rcd at 9560, n.1, citing Cherry Communications, Inc. Consent Decree, 9 FCC Rcd 2086, 2087 (1994). (# Section 64.1100, therefore, governs all IXCs switchless or facilitiesbased  xwhen they submit to a LEC a PICchange order generated by telemarketing that reflects the IXC's claim that the end user has switched its PIC selection to, and is now a customer of, the IXC. " ;,))qq"Ԍ X- C. xDiscussion of WIC's Claims   X- ` x18.` ` The crux of WIC's Application is its claim that the change orders that Sprint  xreceived from NICE and submitted to LECs were PICchange orders under Section 64.1100. The  xlinchpin of this contention is WIC's theory that AT&T was the PIC from 199193 until Sprint became the PIC by submitting NICE's orders to the LECs.  X_- ` x19.` ` As Sprint points out, the Commission has recognized that switchless resellers such  xzas GLD/NICE are prevented, for technical reasons, from ordering service for their customers  X1- x.directly from the LECs.o<1 {O -ԍXxSee PIC Change Recon Order, 8 FCC Rcd at 3218. (#o Instead, they must order access facilities and execute change orders  xthrough carriers such as Sprint or AT&T, which are facilitiesbased IXCs. Therefore, when a  xfacilitiesbased IXC submits to a LEC change orders on behalf of the switchless reseller, that  xLcarrier is not claiming the end user customer for its own account; rather, it is simply facilitating  x.changes that a switchless reseller, such as GLD/NICE, cannot request on its own. Thus, when  xMSprint submitted the change orders to the LECs on behalf of GLD/NICE, Sprint did so as an  xaccommodation to GLD/NICE, which was Sprint's customer. Sprint was not claiming the enduser customers of GLD/NICE as its own.  Xb- ` x20.` ` WIC's assertion notwithstanding, our PICselection rules and orders clearly  XK- xcontemplate that a switchless reseller such as GLD/NICE may be a PIC.=KZ {OV-  ԍXxSee PICChange Recon. Order, 8 FCC Rcd at 3218 (long distance service is also provided by switchless  {O -  resellers); accord LOA Order, 10 FCC Rcd at 957678. In an effort to eliminate consumer confusion about   =the carrier with whom they have contracted to obtain service in resale situations, the Commission mandated  {O-  in 1995 that only the name of the "ratesetting" IXC may lawfully appear on an LOA. See 47 C.F.R.    64.1150(e)(4) (1995) (any carrier designated as a PIC must be the carrier directly setting the rates for the  {OD-  subscriber); LOA Order, 10 FCC Rcd at 9575. This 1995 requirement does not govern the LOAs that WIC obtained for GLD in 199193, but demonstrates further the principle that resale carriers can be PICs. (#ƿ In this case, the record  X4- xreflects that the customers that WIC>4 yO-  ԍXxThe LOAs that WIC obtained and brought to GLD in 199193 apparently met all thenexisting requirements,   as WIC does not dispute the validity of the LOAs that it obtained and brought to GLD. This is consistent   with WIC's argument before the District Court that it is entitled to certain monetary commissions based on   >a percentage of the amount of interexchange services purchased by the end users that it brought to GLD.   /We also note that these LOAs were not governed by our subsequent 1995 requirement that only the rate setting carrier's name appear on the LOA. (# obtained for GLD, pursuant to the February 6, 1991  x\agreement, selected GLD/NICE as their PIC. GLD/NICE is also the carrier that sets the rates  xfor the interexchange services that it provides to its end users and, unlike AT&T or Sprint, is the  X- xIXC with the proximate business relationship with each end user.!?\ {O$-  ԍXxIn the PICChange Recon. Order, the Commission, inter alia, considered a petition for reconsideration   advocating a requirement for LOAs used by switchless resellers to identify the facilitiesbased IXC to whose    network the end user will be switched. The Commission denied this petition after noting several reasons   offered by a party in opposition the proposal: (1) resellers would be forced to collect new LOAs from   ?customers each time they changed underlying carriers, hindering their flexibility to change carriers in"'>,))("   lcontradiction to the Commission's resale policies; and (2) it would be inappropriate because switchless  {OX-  resellers, not the underlying IXCs, control the end users' automatic numbering identifiers. See PICChange  {O"-Recon. Order, 8 FCC Rcd at 321819 & n.40. (#! In contrast, Sprint had no" ?,))qq"  xcontractual relationship with GLD/NICE's customers and was never their PIC. The endusers  xremained the customers of GLD/NICE, the entity with whom they had contracted for service and  x.on whose behalf WIC had solicited business. In view of the foregoing, we affirm the Bureau's  xconclusion that GLD/NICE is the relevant PIC of the end users in question for purposes of Section 64.1100.  Xv- ` x21.` ` We also agree with the Bureau that NICE's customers, i.e., customers that selected  Xa- x\GLD/NICE to be their PIC, experienced no PIC change when NICE@a yO -  ԍXxNICE was the successor in interest to GLD; thus the end users in question experienced no PIC change when  {O -GLD, in effect, became NICE. See Bureau Order, 11 FCC Rcd at 3728. (# changed its underlying  x=facilitiesbased provider in 1993 from AT&T to Sprint. Simply stated, GLD/NICE was still their  xPIC regardless of whether GLD/NICE decided to use Sprint rather than AT&T as its facilities xLbased provider. By definition, therefore, the orders in question that Sprint received from NICE  xand submitted to LECs to effectuate NICE's decision to change its network provider were  x>not PICchange orders under Section 64.1100. As such, we also agree with the Bureau that  xSprint did not violate or even implicate Section 64.1100 when it submitted to LECs NICE's orders to switch NICE's customers' phone lines from AT&T to Sprint.  X- ` `x22.` ` Moreover, our PICchange rules that WIC claims were violated are intended to  xMsafeguard consumers from unauthorized PIC changes caused by overzealous telemarketing  Xd- x-practices.nAdF {O[-ԍXxSee note SAFEGUARD58 , supra. (#n In the scenario just described, the changes in the facilitiesbased carrier were not the  xresult of any overzealous telemarketing practices, but reflect a business decision made by  xGLD/NICE, the switchless reseller, that it would prefer to use Sprint to provide services to  xGLD/NICE's enduser customers. Thus, nothing in this scenario even gives rise to the concerns  X-underlying Section 64.1100 of our rules.   X- ` }x23.` ` WIC has failed to meet its threshold burden of demonstrating that Section 64.1100  xZis even relevant to the disposition of this matter, muchless that Sprint violated the rule. As such,  xthe balance of the contentions in WIC's Application as to how Sprint allegedly violated Section  x64.1100 must fail. In view of the foregoing, and because WIC's contention on review is that the  xBureau concluded erroneously that Sprint did not violate Section 64.1100, we deny WIC's Application.  XP-  X9-D.xGLD/NICE and McKeeff Motion  X - ` x24.` ` Finally, we dismiss a December 22, 1995, Motion for Extension of Time to  xyProvide Defendants Group Long Distance (USA), Inc., National Independent Carrier Exchange,  xand James J. McKeeff, the Opportunity to File Responsive Papers and an Application for Review" A,))qq"  X- xNunc Pro Tunc ("GLD/NICE Motion").B {Oy-  ԍXxWe are assuming, arguendo, that GLD, NICE, and McKeeff filed their motion with the Commission on  {OC-  zDecember 22, 1995. See Letter from Denis V. Brenan to Secretary, FCC (dated and indicating that it was   ksent via facsimile on December 22, 1995, with original to follow via overnight, Saturday, delivery). This   yletter was the transmittal letter for the GLD/NICE/McKeeff motion, and the Commission receiptstamp date  {O-  appearing on this letter is January 10, 1996. See, e.g., Letter from G. Jeffrey Boujoukos to Peter Daronco,   Common Carrier Bureau, FCC, dated July 11, 1996. Two different filing dates may be associated with this   motion simply because the Commission's offices were closed during most of the time period between these  {O-   two dates. See note  CLOSED1 , supra. WIC filed an Opposition to Extension of Time on January 11, 1996, and GLD, NICE, and McKeeff filed a Reply on January 31, 1996. (#Ɵ This motion requested permission to late file an  X- xlapplication for review of the Bureau Order as well as other responsive pleadings.\C {O< -ԍXxSee GLD/NICE Motion at 12. (#\ The  xGLD/NICE Motion was not filed along with any of these pleadings; rather, the motion requested  xiauthority to file such pleadings after the District Court resolved thenexisting issues related to the  x>defendants' representation by the same counsel. Under our rules, however, any motion for  xextension was due before the December 11, 1995, deadline date for filing an application for  Xz- xreview of the November 9, 1995, Bureau Order.\Dz2  yO]-ԍXxGLD/NICE and McKeeff Motion at 5. (#\ Thus, the request for permission to file an  Xe- xapplication for review at some future date was untimely filedE\e  {O-  ԍXxSee 47 C.F.R.  1.46(a) and (c) (requiring special notice provisions for motions for extension of time filed  {O-  less than(seven days prior to the deadline day for filing the papers); see also, 47 C.F.R.  1.115(d) (30day deadline to file application for review). (#Ɓ and we dismiss it as procedurally  xdefective because GLD, NICE, and McKeeff have provided no persuasive argument why we should accept their latefiled motion.  X - ` x25.` ` We also dismiss the GLD/NICE Motion because it is moot. GLD, NICE, and  xMcKeeff asked for permission to file an application for review 20 days after the date that the  xxDistrict Court issued an Order concerning the defendants' joint counsel's motion to withdraw from  X - xthe District Court proceeding.PF&  yO[-  ԍXxAt the time the abovecaptioned case was referred to the Commission, the same counsel jointly represented  {O#-  all of the defendants. See GLD/NICE & McKeeff Motion at 12. Subsequently, however, a conflict of  {O-   interest arose between the defendants. Id. Thereafter, the joint counsel filed a motion with the District  {O-Court to withdraw as counsel to all defendants. Id.; see also GLD/NICE & McKeeff Motion, Exhibit A. (#P The GLD/NICE Motion also asked for permission to file a  xresponse to WIC's Application "ten (15) [sic] days after the issuance of an Order" by the District  xCourt ruling on the defendants' joint counsel's motion to withdraw. The District Court issued an  X- xOrder granting the defendants' counsel's motion to withdraw on May 8, 1996.G {O$-  ԍXxSee Omni Transport, Inc. v. Group Long Distance (USA), Inc., Civil Action No. 93CV3816, Order issued May 8, 1996. (# The  x0Commission's records reflects that, to date, GLD, NICE, and McKeeff have not filed any  xpleadings in the abovecaptioned proceeding and the extended deadline dates requested in their  xmotion have long since expired. Thus, even if we now granted the motion, an application for": .G,))qqH"  xreview or other responsive pleadings subsequently filed by GLD, NICE, or McKeeff would be  X-untimely even under the terms of the motion. The GLD/NICE Motion is therefore moot. H yOb-  ԍXxThe motion is also moot, in part, in view of our decision to incorporate TRA's Petition into the record of  {O*-CC Docket No. 94129. See note  FNPRM 2 , supra.(#   X-  X-EIV. CONCLUSIONS ă  X- ` x26.` ` We find that WIC has provided no evidence or arguments that would persuade us  Xv-to reverse the rationale or result of the Bureau Order.  XJ-5 V. ORDERING CLAUSES ă  X - ` x27.` ` ACCORDINGLY, IT IS ORDERED pursuant to Sections 4(i), 4(j), 5(c)(5), and  x208 of the Communications Act of 1934, as amended, 47 U.S.C.  154(i), 154(j), 155(c)(5),  x208, and Section 1.115(g) of the Commission's rules, 47 C.F.R.  1.115(g), that the Application  xfor Review filed by WATS International Corporation, in the abovecaptioned proceeding on December 11, 1995, IS DENIED.  X- ` x28.` ` IT IS FURTHER ORDERED that the Motion for Extension of Time to Provide  xyDefendants Group Long Distance (USA), Inc. ("GLD"), National Independent Carrier Exchange  x("NICE"), and James J. McKeeff, the Opportunity to File Responsive Papers and an Application  XM- xfor Review Nunc Pro Tunc, that was filed with the Commission on January 10, 1996, is DISMISSED.  X - ` x29.` ` IT IS FURTHER ORDERED that the Motion for Extension of Time filed by Sprint on December 14, 1995, IS GRANTED.  X- ` x30.` ` IT IS FURTHER ORDERED that the Chief, Formal Complaints and Investigations  xBranch, Enforcement Division, Common Carrier Bureau, shall forward a copy of this decision  xto the Chief Clerk for the United States District Court for the Eastern District of Pennsylvania promptly upon release of this Memorandum Opinion and Order. x` `  hh@FEDERAL COMMUNICATIONS COMMISSION x` `  hh@William F. Caton x` `  hh@Acting Secretary