******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect or Word 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. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 AT&T CORPORATION, ) MCI TELECOMMUNICATIONS ) CORPORATION, ) ) Complainants, ) ) v. ) File Nos. E-99-12P, E-99-13P, E-99-14P ) BELL ATLANTIC - PENNSYLVANIA, ) et al., ) ) Defendants. ) MEMORANDUM OPINION AND ORDER ON RECONSIDERATION Adopted: April 12, 2000 Released: April 18, 2000 By the Commission: I. INTRODUCTION 1. In this Order, we deny petitions filed by AT&T Corporation (AT&T), Bell Atlantic and U S West, requesting reconsideration of the Commission's Memorandum Opinion and Order, released December 9, 1998 (Order) in these consolidated formal complaint proceedings. The Order granted in part and denied in part formal complaints by the interexchange carriers (IXCs) that certain optional calling services offered by the local exchange carriers (LECs) resulted in various carrier common line (CCL) charges that were not justified by sufficient use of the associated common line. The Order therefore concluded that certain of these charges and practices violated Section 69.105(a) of the Commission's rules, and Section 201(b) of the Communications Act of 1934, as amended (hereinafter the "Communications Act" or the "Act"), and that the Defendants were liable for possible damages. II. AT&T's PETITION A. Call Waiting and Three-way Calling The Order 2. In the Order, we held that call waiting, unlike call forwarding, effectively furnishes two distinct calls to the subscriber over a common line because the subscriber has the benefit of being able to activate either call at any time. Therefore, we concluded that two CCL charges at the subscriber's end for the duration of each call do not constitute double recovery for the same use of the same facility under Section 69.105(a). Moreover, the Order noted that Section 69.2(a), with respect to measurement of call duration, requires that access minutes of use be counted until one party to a call disconnects. Therefore, we concluded that the call that is "waiting" on hold is not disconnected. Similarly, we concluded that three-way calling enables the subscriber to participate in two wholly separate calls at any given time, and each call provides independent, beneficial use notwithstanding simultaneous transmission over a single line. Accordingly, the Order held, two CCL charges are proper in the context of three-way calling and there is no impermissible double recovery. Discussion 3. AT&T concedes that the Order correctly stated the general rule that only actual use of a common line could support a CCL charge and that more than one CCL charge for such use of a common line during a given span of time would constitute improper double recovery. However, AT&T asserts that the Order then failed to apply this principle consistently to call waiting and three-way calling services. In both cases, AT&T maintains, the implication of the Commission's particular holdings for these two services is that a CCL charge may be imposed where there is no corresponding actual use, and two CCL charges may be imposed simultaneously when only one common line is being used. AT&T further criticizes the Order's reliance upon concepts such as the "benefit" of a call waiting subscriber's ability to activate the call on hold or the "independent, beneficial uses" of three-way callers' employment of the same line. These allegedly vague concepts, AT&T charges, are insufficient to constitute "actual use." AT&T also argues that Section 69.2, with respect to measurement of call duration, merely defines the span within which appropriate charges may be imposed, but does not support the imposition of double charges for a single common line within that time span. 4. All of the forgoing arguments were made previously by AT&T and considered by the Commission. Since AT&T has raised no new arguments on these points, we reject these assertions for the reasons detailed in the Order. In short, we reaffirm our previous conclusion that these calls, even though associated with only a single common line, constitute sufficient "use" to justify two CCL charges for the entire duration of each call. 5. AT&T raises three variations on these arguments, however, that were not directly addressed in the Order. First, AT&T emphasizes that Section 69.105(a) specifically limits CCL charges to "per line per access minute of use"; that is, that there may be only one charge for each line. Second, AT&T raises a pre-1989 rule (which has since been superseded) on the computation of CCL charges that AT&T alleges was closely related and relevant to Section 69.2. This former rule, Section 69.105(b)(1), stated that the CCL charge: shall be computed by dividing the revenue requirement for the Carrier Common Line element by the projected annual access minutes of use for all interstate and international services that use local exchange common line facilities. Each minute of use of any local exchange common line by such services shall be counted for purposes of computing and assessing this charge . . . . AT&T claims that this rule is relevant to the meaning of the CCL charge in spite of its being superseded. Moreover, AT&T asserts that it ties the CCL charge to actual common line use and establishes that each minute of use on a given line will be counted only once. Finally, AT&T claims for the first time that, under settled industry standards, the subscriber's flashing of the switchhook to activate a call on hold in call waiting amounts to "disconnection" as used in Section 69.2. In support, it attaches a Bellcore publication on signaling. 6. We find that these three variations on AT&T's previous themes are all invalid or unpersuasive. First, regarding the phrase "per line" in Section 69.105(a), we find nothing in the language "per line per access minute of use" that is inconsistent with the Order's basic conclusion, i.e., that, in the peculiar circumstances of call waiting and three way calling, CCL minutes of use attributable to more than one call can be associated with a single common line. Precisely the same consideration applies to the second matter raised by AT&T, the pre-1989 rule in Section 69.105(b)(1). Even if this superseded provision from a different period were deemed material, it does not support AT&T's position. The general requirement that "each minute of use of any local exchange common line . . . shall be counted . . ." is consistent with the Order's treatment of the exceptional cases of call waiting and three-way calling, in which there can be multiple calls in "use" on a single common line. Finally, as to AT&T's claim that the flash signal in call waiting is equivalent to "disconnection" in Section 69.2, we agree with Defendants that it is patently without merit. It contradicts the intention of the subscriber, who flashes the switchhook in this special sense to put the currently conversing party on hold and turn to the new, "waiting" party, rather than to fully terminate the call with the currently conversing party. Moreover, AT&T's interpretation is unsupported by the most recent Bellcore guidelines. 7. In sum, for all the forgoing reasons, we deny AT&T's petition for reconsideration as to call waiting and three-way calling. B. Burden of Production for Call Forwarding Double Recovery Issues The Order 8. In the Order, we found that it might be possible to demonstrate, in certain limited circumstances, that an interstate CCL charge on a call forwarded within the same LATA constitutes double recovery. Specifically, we stated that "the IXCs would have to show that the LEC recovers not only its full interstate costs through the interstate CCL charges, but also recovers through that same interstate charge a portion of the fixed sum of its intrastate costs attributable to the identical facilities and operations." We indicated that the IXCs could, in the damages phase of the proceeding, attempt to show that the interstate CCL charges at issue did, in fact, recover intrastate costs. Discussion 9. AT&T maintains that the Defendant LECs should bear the burden of showing the flow of costs and rates in both jurisdictions because, inter alia, the LECs have virtually exclusive possession of the relevant information. 10. Under the Commission's rules, complainants in a proceeding brought under section 208 of the Act typically bear the burden of persuasion. The Order's comments concerning the Complainants' task with respect to the issue of cross-jurisdictional double recovery were intended to elucidate what they must do to establish a prima facie showing of liability. It is true that the Defendant LECs have better access to the relevant information and, as AT&T claims, each Defendant LEC may have a better understanding of its own unique practices. The main consequence of this, however, is simply that the Complainant IXCs may and should pursue that material through discovery in the damages phase of the proceeding. We do not find any special circumstances to justify formally shifting the burden of production or the burden of persuasion beyond what is already inherent in the general rules applicable to all cases. In particular, we do not find exceptional circumstances comparable to those in the Non-Accounting Safeguards Order or any other suggested examples. Accordingly, we deny AT&T's petition for reconsideration on this matter. III. Bell Atlantic's Petition --Voice Mail The Order 11. In the Order, we held that voice mail relies on call forwarding features to re-route a call to an alternate location; accordingly, CCL charges on calls attributable to the unused common line between the subscriber's premises and the LEC's serving central office violate Section 69.105(a). The Order followed the same reasoning with respect to voice mail as it did with call forwarding, i.e., that the intermediate common line from the subscriber's central office to the subscriber's premises, is not "used" in any significant sense of that term. The Order also concluded that the second portion of a voice mail call, from the LEC's central office to the voice mail platform, may or may not justify a CCL charge, depending on whether this link is a true common line. The Order did not specifically address the final link, from the voice mail platform to the subscriber when and if the message is retrieved. Discussion 12. Bell Atlantic petitions for reconsideration of our conclusions regarding application of CCL charges to voice mail. First, Bell Atlantic argues that a call that terminates in voice mail is stored only temporarily at the voice mail facility and that the subsequent retrieval by the subscriber is the true completion of what is a single, continuous call. Consequently, Bell Atlantic reasons, the use of the subscriber's common line during retrieval justifies Bell Atlantic's collection of an interstate terminating access charge from the caller's IXC, because a common line is actually used by the retrieving subscriber. Bell Atlantic asserts that this interpretation is consistent with the intentions of both the caller and the subscriber. On March 2, 1999, after the briefing in this proceeding, Bell Atlantic submitted a letter in this docket in which it claimed the Commission recently accepted similar reasoning in the instance of reciprocal compensation for LEC services to internet service providers. The particular issue in that rulemaking was determination of the jurisdictional nature and associated regulatory treatment of typical internet calls. Such calls originate from end user customers, go through internet service providers -- usually via their local servers -- and ultimately reach internet information providers -- who are usually in different LATAs, states, or even countries. The Commission decided that the relevant "call" was the continuous transmission from the end user to the intended final destination, i.e., the internet information provider. Bell Atlantic claims here that, by the same reasoning, the relevant "call" in voice mail service is the entire path to the intended final destination, i.e., to the subscriber when he or she retrieves the message. 13. Consistent with our analysis with respect to other features, we construed the single, integral "call" terminating in voice mail as stretching from the originating caller to the voice mail facility. We disregarded the intermediate arrival and routing at the subscriber's serving central office, concluding that there was no significant use at that time of the common line from that office to the subscriber's premises. Under this analysis, the call can be said to terminate at the voice mail facility because disconnection occurs there. We reject Bell Atlantic's assertion that the call instead terminates at some later time when the subscriber retrieves the call from the voice mail facility. We find Bell Atlantic's Internet analogy to be inapposite because the ISP-bound call is not retrieved days or weeks later. Accordingly, we deny Bell Atlantic's request to reconsider the prior Order. IV. U S WEST -- DAMAGES 14. U S West raises several arguments which essentially ask the Commission to reconsider its prior decision to defer consideration of certain damages-related issues to the damages phase of this proceeding. In the Order, we clearly stated that arguments now raised by U S West should be addressed in the damages phase of the proceeding, and have in fact been raised by the parties in the supplemental damages complaints. Accordingly, we affirm our decision to defer these issues to the damages phase. V. CONCLUSION AND ORDERING CLAUSES 15. For the reasons discussed above, we conclude that AT&T, Bell Atlantic and U S West have all failed to persuade us that we should reconsider the challenged portions of the Order. 16. Accordingly, IT IS ORDERED pursuant to Sections 1, 4(i), 4(j), 201(b), 203(c), 208, and 415, of the Communications Act of 1934, as amended, 47 U.S.C.  151, 154(i), 154(j), 201(b), 203(c), 208, 415, and Sections 1.106 and 69.105(a) of the Commission's rules, 47 C.F.R.  1.106, 69.105(a), that the above-captioned petitions for reconsideration ARE DENIED. 17. IT IS FURTHER ORDERED that Bell Atlantic's motion to dismiss AT&T's reply as late-filed is DISMISSED as moot. FEDERAL COMMUNICATIONS COMMISSION Magalie Roman Salas Secretary