|Federal Communications Commission|
445 12th St., SW
Washington, D.C. 20554
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September 28, 1999
UPDATED FILING REQUIREMENTS FOR BELL OPERATING COMPANY APPLICATIONS UNDER SECTION 271 OF THE COMMUNICATIONS ACT
On September 19, 1997, the Commission released a Public Notice that set forth the proceduralrequirements and policies relating to the Commission's processing of Bell Operating Company (BOC)applications for entry into the in-region, interLATA market under section 271 of the Communications Act.(1) The Common Carrier Bureau made minor changes to these procedural requirements in its July 8, 1998Public Notice.(2) This Public Notice makes further minor revisions to the procedural requirements set forthin the September 19, 1997 Public Notice and the July 7, 1998 Public Notice, as indicated in bold below. In the interests of clarity and for the convenience of parties, this Public Notice also restates the proceduralrequirements and policies that the Commission adopted in the September 19, 1997 Public Notice, andthereby serves as a single, current reference for the procedural requirements and policies relating to theCommission's processing of section 271 applications.
A. Application Filing Requirements
Under section 271, the Bell Operating Companies must file applications to provide in-region, interLATAservices on a state-by-state basis. By "application," the Commission means: (1) a stand-alone documententitled "Brief in Support of Application by [Bell company name] for Provision of In-Region, InterLATAServices in [state name]; and (2) any supporting documentation. The content of both parts of theapplication is addressed later in this Public Notice.
Under the revised procedures described in this Public Notice, applicants must file each section 271application with the Commission as follows:
Applications will be available for public inspection during regular business hours in the ReferenceInformation Center of the Federal Communications Commission, Room CY-A-257, 445 12th Street, S.W.,Washington, DC 20554. The applicant must also submit a completely paper copy of the applicationsimultaneously to: (a) the Department of Justice c/o Donald J. Russell, Telecommunications TaskForce, Antitrust Division, Suite 8000, 1401 H Street, N.W., Washington, DC 20530; (b) the relevantstate regulatory commission; and (c) the Commission's copy contractor, ITS, Inc., 1231 20th Street,N.W., Washington, DC 20036, tel. 202/857-3800.
The CD-ROM in read-only format submitted to the Commission should be formatted in Word 97 orExcel 97, as applicable. It should contain the Applicant's Brief in Support. If electronically available,the supporting documentation must be included on the CD-ROM in read-only format as well. Withrespect to supporting materials that are not provided on CD-ROM in read-only format, the applicantshould include a note at the end of the electronic version of the Brief in Support specifying which materialsare not contained on the disk and indicating that such materials are on file with the Commission. All filingssubmitted on CD-ROM in read-only format will be posted on the Internet for public inspection athttp://www.fcc.gov. We also urge the applicant to post its electronic filings on its own Internet home pageand to inform us of such posting in the Brief in Support.
E. Preliminary Matters
Section 271(d)(3) states that "[t]he Commission shall not approve the authorization requested in anapplication . . . unless it finds" three specified conditions to be met. The Commission expects that a section271 application, as originally filed, will include all of the factual evidence on which the applicant wouldhave the Commission rely in making its findings thereon. An applicant may not, at any time during thependency of its application, supplement its application by submitting new factual evidence that is notdirectly responsive to arguments raised by parties commenting on its application. Thus, an applicant maynot submit factual evidence gathered after the applicant's initial filing. The applicant, however, maysubmit new factual evidence if the sole purpose of that evidence is to rebut arguments made, or factssubmitted. But in no event shall such evidence post-date the filing of the relevant comments.(4) In the eventthat the applicant submits new or post-dated evidence in replies or ex parte filings, the Commissionreserves the right to start the 90-day review process anew or to accord such evidence no weight in makingits 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, submittedby any party must also be supported by an affidavit or verified statement of a person or persons withpersonal knowledge thereof.
Applicants and participants in section 271 proceedings also have an obligation to present their position in aclear and concise manner. In the section 271 proceedings conducted so far, each application - as well assome of the subsequent responsive filings - totaled several thousand pages. In addition, certain partieshave included substantive arguments in affidavits or other supporting materials, rather than in their legalbriefs. As a result, in some cases, we have found it burdensome and time-consuming to determine thepositions of parties. Because of the shortness of the 90-day review period, we believe that it is necessary tomake 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 argumentsin a legal brief (i.e., Applicant's Brief in Support, comments in opposition or support, reply comments, exparte filings). The Commission retains the authority to strike, or to decline to consider, substantivearguments that appear only in affidavits or other supporting documentation. We note that the United StatesCourt of Appeals for the District of Columbia Circuit has found that the Commission "need not siftpleadings and documents to identify" arguments that are not "stated with clarity."(5) It is the petitioner whohas the "burden of clarifying its position" before the agency.(6) This duty is even more crucial in the contextof section 271 proceedings, because of the limited period in which the agency has to review section 271applications.
We recognize, however, that the question of whether an applicant has satisfied the requirements of section271 raises numerous complex and fact-intensive issues, which may necessitate lengthy filings in support ofor in opposition to an application. In order to ensure that applicants and other participants in section 271proceedings have the ability to present their positions fully, we have increased the page limits for theApplicant's Brief in Support and third party comments and replies, and we have eliminated the page limitsfor applicants' replies, as noted below. In addition, we expect that applicants and other participants insection 271 proceedings will continue to use affidavits and other supporting documentation to supportfactual and legal assertions made in their legal briefs, to provide expert testimony in support of thepositions 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 meetwith likely objectors in order to attempt to narrow the issues in dispute. As noted in section C of thisPublic Notice, we require that an applicant submit, either in the application itself or in a supplementalstatement within five days after the application is filed, a signed statement that describes efforts that theapplicant has made to narrow the issues in dispute and the results of those efforts.
F. Content of Applications
Applications shall conform to the Commission's general rules relating to applications.(7) As noted above,applications shall have two parts: (1) a Brief in Support of Application by [Bell company name] forProvision of In-Region, InterLATA Services in [State name]; and (2) any supporting documentation, suchas records of state proceedings, interconnection agreements, affidavits, etc. The Applicant's Brief inSupport may not exceed 125 pages. The table of contents, summary of argument, and list of appendices(items (a), (b), and (h) below) shall not be counted in determining the length of the Brief in Support. Thereis no page limit on supporting documentation, but, as discussed above, the applicant may not makesubstantive legal or policy arguments in its supporting documentation.
The Brief in Support should contain the following items:
The name of the applicant, the date the application is filed, and the state to which it relates should appear inthe 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'scompliance with section 271 or portions thereof. In addition, supporting documentation, including anyrecords of interconnection agreements, affidavits, etc., shall be provided in appendices, separated by tabsand divided into volumes as appropriate. Each volume shall contain a table of contents that lists the subjectof 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 PublicNotice) establishing the specific due dates for the various filings set forth below. The Initial Public Noticewill also establish procedures for the treatment of confidential information submitted by participants(including the application, the Department of Justice, and the relevant state commission). Simultaneouslywith the issuance of the Initial Public Notice, the Bureau will notify the Department of Justice and theaffected state of our receipt of the application. Interested third parties will have approximately 20 daysfrom the issuance of the Initial Public Notice to file comments in opposition or support, which may notexceed 100 pages.(11) The specific due date for comments will be set forth in the Initial Public Notice.
The Commission retains discretion to adjust the due date for comments and replies on a case-by-case basisto ensure that interested third parties have sufficient time to review and comment on each application. TheCommission strongly discourages, and will take appropriate steps to prevent, an applicant from attemptingto limit the time for interested third parties to review an application (e.g., by filing on a Friday or the daybefore a national holiday).
The name of the commenter, the name of the applicant, and the state to which the application relates shouldappear in the upper right-hand corner of each page. Comments in support or opposition shall also include atable of contents, a concise summary of the arguments presented in the comments, and a list of allappendices and the location of and subjects covered by each of those appendices. None of these portions ofthe comments shall be counted in determining the length of the comments. To file comments or replies (orany other filing set forth below) in a section 271 proceeding, commenters must follow the applicableprocedures outlined in section A of this Public Notice.
Commenters shall not incorporate by reference, in their comments or replies, entire documents orsignificant portions of documents that were filed in other proceedings, such as comments filed or argumentsmade in a previous section 271 proceeding. Although commenters are permitted to note arguments thatwere presented in earlier filings, they must provide a complete recitation in their current filing of anyargument 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 thanin supporting documentation. In addition, supporting documentation, including any records ofinterconnection agreements, affidavits, etc., shall be provided in appendices, separated by tabs and dividedinto volumes as appropriate. Each volume shall contain a table of contents that lists the subject of eachtabbed section of that volume.
If a commenter submits confidential information to the Commission, it shall include in a cover letter to theCommission the name, address, and phone number of the person who will address inquiries regardingaccess to the confidential information by other participants in the proceeding (subject to the terms of anyapplicable protective order).
E. State Commission and Department of Justice Written Consultations
Many state commissions have already commenced proceedings to examine BOC compliance with section271 or portions thereof. In light of this fact and in light of the shortness of the 90-day period for deciding asection 271 application, we require that the relevant state commission file any written consultation not laterthan approximately 20 days after the issuance of the Initial Public Notice. The specific due date for thestate's written consultation will be set forth in the Initial Public Notice. The relevant state commissionshall 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 becomepart of the record) must be filed not later than approximately 35 days after the issuance of the Initial PublicNotice. The specific due date for the Department's written consultation will be set forth in the InitialPublic Notice. The Department of Justice shall also follow the applicable procedures outlined in section Aof this Public Notice.
The state commission and the Department of Justice are also welcome to file a reply pursuant to section Fof this Public Notice, as well as written ex parte submissions in accordance with section H of this PublicNotice.
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. Suchreplies will be due approximately 45 days after the Initial Public Notice is issued. The specific due date forreplies will be set forth in the Initial Public Notice. All replies except that of the applicant are limited to 50pages. 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 applicationrelates should appear in the upper right-hand corner of each page. Replies shall also include a table ofcontents, a concise summary of the arguments presented in the comments, and a list of all appendices andthe location of and subjects covered by each of those appendices. None of these portions of a reply shall becounted in determining the length of the reply.
The applicant's and third parties' reply comments may not raise new arguments or include new data thatare not directly responsive to arguments other participants have raised, nor may the replies merely repeatarguments made by that party in the application or initial comments. An applicant may submit new factualevidence in its reply if the sole purpose of that evidence is to rebut arguments made, or facts submitted, bycommenters, provided the evidence covers only the period placed in dispute by commenters and in no eventpost-dates the filing of the relevant comments.(12) In addition, as discussed in section D of this PublicNotice, participants are not permitted, in their replies, to incorporate by reference entire documents orsignificant 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 theirreplies, 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 contentsthat lists the subject of each tabbed section of that volume.
Because of the shortness of the 90-day period to review section 271 applications, a dispositive motion filedwith the Commission in a section 271 proceeding (e.g., motion to dismiss) will be treated as an early-filedpleading and will not be subject to a separate pleading cycle, unless the Commission or Bureau determinesotherwise in a public notice issued after the motion is filed. The Commission generally expects, however,that such a separate pleading cycle will not be necessary. Thus, in general, dispositive motions filed beforethe due date for third party comments will be treated as early-filed comments; dispositive motions filedafter the due date for third party comments but before the due date for replies will be treated as early-filedreplies; 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 inthis Public Notice.
Non-dispositive motions (e.g., motions to strike) will be subject to the default pleading cycle in section 1.45of the Commission's rules,(13) 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 the Commission's rules willnot apply to motions filed in section 271 proceedings.(14) Thus, parties will not be allowed an extra threedays (beyond the time permitted in section 1.45) to respond to non-dispositive motions and oppositionsthereto, regardless of whether the filing was served on the party by mail. In lieu of that rule, however, aparty submitting a non-dispositive motion must, on the day of filing, serve that motion either by hand or byfacsimile 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 read-only CD-ROMformatted in Word 97 or Excel 97, as applicable (as well as in hard copy form). All filings submitted onread-only CD-ROM will be posted on the Internet for public inspection at http://www.fcc.gov. Suchmotions, 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 consideredpermit-but-disclose proceedings.(15) Accordingly, ex parte presentations will be permitted, provided they aredisclosed in conformance with Commission ex parte rules.(16) 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 partepresentations. In any event, parties may not file more than a total of 20 pages of written ex partesubmissions. This 20-page limit does not include: (1) written ex parte submissions made solely to disclosean oral ex parte contact; (2) written material submitted at the time of an oral presentation to Commissionstaff that provides a brief outline of the presentation; (3) written material filed in response to direct requestsfrom Commission staff; or (4) written factual exhibits. The Commission retains the right not to consider aspart of the record ex parte submissions in excess of the 20-page limit. Parties should provide Bureaustaff with courtesy copies of any ex parte presentations made to any member of the Commission.
For purposes of these proceedings, and in light of the explicit role the Act gives to the Department ofJustice and the state commissions under section 271, any oral ex parte presentations from the Departmentof Justice and the relevant state commission will be deemed to be exempt ex parte presentations. To theextent that the Commission obtains through such oral ex parte presentations new factual information onwhich the Commission subsequently relies in its decision-making process, the Commission will eitherrequest the Department of Justice or the relevant state commission to disclose or disclose itself such newfactual information in the record no later than the time it releases its decision.(17) There are no page limits onwritten 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 communicationwith Commission personnel regarding the application during a seven-day period preceding the anticipatedrelease date of the Commission's order regarding the application.(18)
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 BOCs must file applicationsto provide in-region interLATA services on a state-by-state basis. State regulatory commissions must filewritten consultations relating to the applications not later than approximately 20 days after the issuance ofan Initial Public Notice establishing specific due dates for various filings. Interested third parties may filecomments on the applications not later than approximately 20 days after the issuance of the Initial PublicNotice. The Department of Justice must file written consultations relating to the applications not later thanapproximately 35 days after the issuance of the Initial Public Notice. All of the information would be usedto ensure that the BOCs have complied with their obligations under the Communications Act of 1934, asamended, before being authorized to provide in-region, interLATA services pursuant to section 271. Obligation to respond is not mandatory.
The Commission has estimated that each response to this collection of information will take, on average,250 hours. This estimate includes the time to read the instructions, look through existing records, gatherand maintain required data, and actually complete and review the form or response. If you have anycomments on this estimate, or on how the Commission can improve the collection and reduce the burden itcauses you, please write the Federal Communications Commission, AMD-PERM, Washington, DC 20554,Paperwork Reduction Project (3060-0756). Your comments also will be accepted via the Internet if yousend them to firstname.lastname@example.org. Please DO NOT SEND COMPLETED APPLICATION FORMS TOTHIS ADDRESS.
Remember - You are not required to respond to a collection of information sponsored by the Federalgovernment, and the government may not conduct or sponsor this collection unless it displays a currentlyvalid OMB control number or if it fails to provide you with this notice. This collection has been assignedan 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. §552a(e)(3) and the Paperwork Reduction Act of 1995, Public Law 104-13, October 1, 1995, 44 U.S.C.3507.
By the Chief, Common Carrier Bureau.
- FCC -
1 Revised Procedures for Bell Operating Company Applications Under Section 271 of the Communications Act,FCC 97-330, Public Notice, 12 FCC Rcd 18590 (1997) (September 19, 1997 Public Notice). The September 19,1997 Public Notice revised and superseded the procedures and policies for section 271 applications that were setforth in the Commission's December 6, 1996 Public Notice. See Procedures for Bell Operating CompanyApplications Under New Section 271 of the Communications Act, FCC 96-469, Public Notice, 11 FCC Rcd 19708(1996).
2 Bell Operating Companies Given Option of Filing Certain Documents on CD-ROM in Section 271 Applications,DA 98-1354, Public Notice, 13 FCC Rcd 12791 (1998) (July 7, 1998 Public Notice).
3 If filing on CD-ROM is not possible, applicants may file on a 3.5 inch computer diskette.
4 See Application of Ameritech Michigan Pursuant to Section 271 of the Communications Act of 1934, asamended, To Provide In-Region, InterLATA Services in Michigan, CC Docket No. 97-137, Memorandum Opinionand Order, 12 FCC Rcd 20543, at ¶ 51 (1997).
5 WAIT Radio v. FCC, 418 F.2d 1153, 1157 (D.C. Cir. 1969), cert. denied, 409 U.S. 1027 (1972).
6 Northside Sanitary Landfill, Inc., v. Thomas, 849 F.2d 1516, 1519 (D.C. Cir. 1988), cert. denied, 489 U.S. 1078(1989).
7 See 47 C.F.R. §§ 1.49, 1.741-1.749.
8 See id. at § 1.49.
9 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).
10 See 47 C.F.R. § 1.743.
11 The Commission expects that parties will include all substantive arguments in their legal brief. TheCommission may strike or decline to consider substantive arguments made only in affidavits or other supportingdocumentation.
12 See Application of Ameritech Michigan Pursuant to Section 271 of the Communications Act of 1934, asamended, To Provide In-Region, InterLATA Services in Michigan, CC Docket No. 97-137, Memorandum Opinionand Order, 12 FCC Rcd 20543, para. 15 (1997).
13 47 C.F.R. § 1.45.
14 See 47 C.F.R. § 1.4(h).
15 See id. at §§ 1.1200(a), 1.1206.
16 See id. at §§ 1.1202, 1.1206(b).
17 See id. at § 1.1204(a)(6).
18 Cf. §§ 1.1200(a); 1.1203.