******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** DA 98-1838 Before the Federal Communications Commission Washington, D.C. In the Matter of ) ) CC Docket No. 98-167 GTE System Telephone Companies ) GSTC Tariff FCC No. 1 ) GSTC Transmittal No. 260 ) ORDER SUSPENDING TARIFF AND DESIGNATING ISSUES FOR INVESTIGATION Adopted: September 11, 1998 Released: September 11, 1998 By the Chief, Competitive Pricing Division, Common Carrier Bureau: I. INTRODUCTION 1. On August 28, 1998, the GTE Telephone Companies (GSTC) filed Transmittal No. 260 establishing a new offering, GTE ADSL Service, to become effective September 12, 1998. GTE describes its digital subscriber loop (DSL) offering as an interstate data special access service that provides a high speed access connection between an end user subscriber and an Internet Service Provider (ISP) by utilizing a combination of the subscriber's existing local exchange physical plant (i.e. copper facility), a specialized DSL-equipped wire center, and transport to the frame relay switch where the ISP will connect to GTE's network. DSL Service will allow for the simultaneous transmission of voice dialed calls and high speed data access over a single path, thereby reducing the need for subscribers to obtain additional lines for their Internet access capabilities, according to GTE. GTE also proposed that nonrecurring charges for its Frame Relay Service, when used in conjunction with ADSL Service, will be waived from September 12, 1998 to December 31, 1998. 2. We find that issues raised by AOL in support of its petition to suspend and investigate GSTC's Transmittal No. 260 raise substantial questions of lawfulness that warrant investigation of this tariff. Accordingly, GSTC's Transmittal No. 260 is suspended for one day, following the effective date. This transmittal will also be subject to an accounting order to facilitate any refunds that may later prove to be necessary. In this Order, we designate for investigation under section 204(a) of the Communications Act (the Act) the question of whether GTE's DSL service offering constitutes an interstate access service, and thus is subject to the Commission's jurisdiction. II. DISCUSSION A. Background 3. GSTC's Transmittal No. 260 seeks to offer DSL service through an interstate access tariff. GTE contends that an interstate tariff is appropriate because: (1) Internet traffic is primarily interstate in nature; (2) GTE's DSL service offering involves dedicated transport of data; and (3) GTE's DSL service is an access service under section 69.2 of the Commission's rules. The Commission has not substantively addressed the lawfulness of a DSL service in the context of an interstate tariff such as that filed by GSTC. B. Petition 4. AOL argues that GTE's DSL service is an intrastate service offering that should be tariffed at the state level. AOL contends in its petition that thirteen states have already held that traffic from an end user to an ISP is local, and that GSTC's tariff is an attempt to forum shop to avoid these decisions. Specifically, AOL maintains that these states have held that incumbent local exchange carriers (ILECs) must pay reciprocal compensation when they exchange this type of traffic with competitive local exchange carriers (CLECs). C. Discussion 5. The threshold issue raised by GSTC's tariff and AOL is whether GTE's DSL service offering is an interstate service, properly tariffed at the federal level, or an intrastate service that should be tariffed at the state level. We find that the record in this proceeding to date does not contain sufficient information on which to decide this issue. We, therefore, designate for investigation the question whether GTE's DSL service offering is a jurisdictionally interstate service. We solicit comments on the jurisdictional issues raised by GTE's DSL service offering and whether it should be tariffed at the state or federal level. We also solicit comments on whether the Commission should defer to the states the tariffing of retail DSL services in order to lessen the possibility of a price squeeze. III. Filing Schedules 6. This investigation will be conducted as a notice and comment proceeding. We have designated CC Docket No. 98-167. GSTC is designated as a party to this proceeding, and shall file its direct case no later than September 25, 1998. The direct case must present the party's positions with respect to the issues described in this Order. Pleadings responding to the direct case may be filed no later than October 4, 1998, and must be captioned "Oppositions to Direct Case" or "Comments on Direct Case." GSTC may file a "Rebuttal" to oppositions or comments no later than October 9, 1998. 7. An original and six copies of all pleadings shall be filed with the Secretary of the Commission. In addition, parties shall file two copies of any such pleadings with the Competitive Pricing Division, Common Carrier Bureau, Room 518, 1919 M Street, N.W., Washington, D.C. 20554. Parties shall also deliver one copy of such pleadings to the Commission's commercial copying firm, International Transcription Service, Inc., 1231 20th Street, NW, Washington, DC 20036. Members of the general public who wish to express their views in an informal manner regarding the issues in this investigation may do so by submitting one copy of their comments to the Office of the Secretary, Federal Communications Commission, 1919 M Street, N.W., Room 222, Washington, D.C. 20554. Such comments should specify the docket number of this investigation. Parties are also encouraged to submit their pleadings electronically through the Electronic Tariff Filing System. 8. All relevant and timely pleadings will be considered by the Commission. In reaching a decision, the Commission may take into account information and ideas not contained in pleadings, provided that such information or a writing containing the nature and source of such information is placed in the public file, and provided that the fact of reliance on such information is noted in the order. IV. Ex Parte Requirements 9. This tariff investigation is a "permit-but-disclose proceeding" and subject to the "permit-but-disclose" requirements under section 1.1206(b) of the rules, 47 C.F.R.  1.1206(b), as revised. Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must contain a summary of the substance of the presentation and not merely a listing of the subjects discussed. More than a one or two sentence description of the views and arguments presented is generally required. Other rules pertaining to oral and written presentations are set forth in section 1.1206 (b), as well. V. Paperwork Reduction Act 10. The collections of information contained within are contingent upon approval by the Office of Management and Budget, in accordance with the provisions of the Paperwork Reduction Act, 44 U.S.C.  3506 et seq. VI. ORDERING CLAUSES 11. Accordingly, IT IS ORDERED that, pursuant to Section 204(a) of the Communications Act of 1934, as amended, 47 U.S.C.  204(a), and authority delegated pursuant to Section 0.91 and Section 0.291 of the Commission's Rules, 47 C.F.R.  0.91, 0.291, Transmittal No. 260 IS SUSPENDED for one day from the effective date and an investigation of the referenced tariff transmittal IS INSTITUTED. 12. IT IS FURTHER ORDERED that GSTC SHALL FILE tariff revisions within five business days of the release date of this Order to reflect this suspension. 13. IT IS FURTHER ORDERED that, for the above purposes, GSTC should cite the "DA" number of the instant Order as the authority for this filing. 14. IT IS FURTHER ORDERED that, pursuant to Section 204(a) of the Communications Act of 1934, as amended, 47 U.S.C. 204(a), GSTC shall keep accurate account of all amounts received by reason of the rates that are the subject of this investigation. 15. IT IS ORDERED that, pursuant to sections 4(i), 4(j), 201(b), 203(c), 204(a), 205, and 403 of the Communications Act, 47 U.S.C.  154(i), 154(j), 201(b), 203(c), 204(a), 205 and 403, and sections 0.91 and 0.291 of the Commission's rules, 47 C.F.R.  0.91 and 0.291, the issues set forth in this Order ARE DESIGNATED FOR INVESTIGATION. 16. IT IS FURTHER ORDERED that GSTC is a party to this proceeding and SHALL INCLUDE, in its direct case, a response to each issue designated in this Order. FEDERAL COMMUNICATIONS COMMISSION Jane E. Jackson Chief, Competitive Pricing Division Common Carrier Bureau