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                           Before the
                Federal Communications Commission
                     Washington, D.C. 20554


In the Matters of                )
                                )
AT&T Corp.,                      )
                            Com- )    EB-01-MD-001
plainant,                        )
           v.                    )
                                )
Business Telecom, Inc.,          )
                             De- )
fendant.                         )
                                )
                                )
Sprint  Communications  Company, )    EB-01-MD-002
L.P.,                            )
                            Com- )
plainant,                        )
                                )
          v.

Business Telecom, Inc.,
                             De-
fendant.


                    ORDER ON RECONSIDERATION


   Adopted:  September 27, 2001         Released:  September  27, 

2001

By the Commission:  Commissioner Martin dissenting and issuing  a 
separate statement.

                        I.   INTRODUCTION

In this Order on Reconsideration, we dismiss the Joint Petition 
for Reconsideration1 of our Memorandum Opinion and Order in AT&T 
Corp. and Sprint Communications Co., L.P. v. Business Telecom, 
Inc.2  The Petition was filed by five competitive local exchange 
carriers (``CLECs'') and a CLEC trade association, none of which 
was a party to the complaint proceedings resolved by the BTI 
Order.3  As explained below, we dismiss the Petition because 
Petitioners have failed to satisfy the two requirements for non-
parties to seek reconsideration of a Commission order in an 
adjudicatory proceeding.4

                         II.  BACKGROUND

In the BTI Order, the Commission partially granted formal 
complaints filed by AT&T Corp. (``AT&T'') and Sprint 
Communications Company, L.P. (``Sprint'') against Business 
Telecom, Inc. (``BTI''), a CLEC, pursuant to section 208 of the 
Communications Act of 1934, as amended (``Act'')5 and a primary 
jurisdiction referral from the United States District Court for 
the Eastern District of Virginia.6  The Commission held, inter 
alia, that BTI's access rates during the relevant period were 
unjustly and unreasonably high, in violation of section 201(b) of 
the Act.7  Moreover, in order to permit the court to calculate 
the damages caused by BTI's violation of section 201(b), the 
Commission determined what access rates would have been just and 
reasonable during the relevant period.8

None of the parties filed petitions for reconsideration of the 
BTI Order.  Instead, each of them filed a petition for review of 
the BTI Order in the United States Court of Appeals for the 
District of Columbia Circuit.9

Petitioners argue that they have standing to seek reconsideration 
of the BTI Order under section 1.106 of our rules, because (1) 
certain interexchange carriers (``IXCs'') have stated to certain 
of the Petitioners that the IXCs may attempt to use the BTI Order 
as precedent in future complaints concerning the reasonableness 
of the Petitioners' access rates;10 and (2) Petitioners had no 
reason to believe that the Commission might reach a result in the 
BTI Order that was adverse to their economic interests.11 

                      III.      DISCUSSION

In order to seek reconsideration of a Commission order in an 
adjudicatory proceeding to which it was not a party, a petitioner 
must demonstrate that (1) the petitioner's ``interests are 
adversely affected'' by the order, and (2) the petitioner has  
``good reason why it was not possible for [the petitioner] to 
participate in the earlier stages of the proceeding.''12  For the 
reasons explained below, we conclude that Petitioners have failed 
to demonstrate that they meet either of those requirements.

     III.A.    Petitioners Have Not Demonstrated That the BTI 
          Order ``Adversely Affects'' Them Within the Meaning of 
          Section 405(a) of the Act and Section 1.106 of the 
          Commission's Rules. 

Petitioners allege that the BTI Order ``adversely affects'' them 
within the meaning of section 405(a) of the Act and section 1.106 
of the Commission's Rules, solely because certain IXCs have 
stated that they may attempt to use the BTI Order as precedent in 
future complaints concerning the reasonableness of the 
Petitioners' access rates.13  We disagree.

Petitioners have not directed us to any Commission or court case 
law suggesting that the precedential value of an adjudicatory 
order in a section 208 complaint proceeding can ``adversely 
affect'' a non-party to the adjudication within the meaning of 
section 405(a) of the Act and section 1.106 of the Commission's 
rules.  Although the Commission has not previously addressed this 
issue in a section 208 complaint proceeding, in construing the 
phrase ``adversely affected'' in other adjudicatory proceedings, 
the Commission has required a far more direct and concrete 
interest in the proceeding than that stated by Petitioners.14  In 
adjudicatory licensing proceedings, for example, the Commission 
has applied the same test that courts employ in determining 
whether a person has standing under Article III to appeal a court 
order:  the person must show (1) a personal injury ``in fact''; 
(2) that the injury is fairly traceable to the challenged action; 
and (3) that it is likely, not merely speculative, that the 
requested relief will redress the injury.15  Applying that test 
in the Article III standing context, courts have consistently 
held that the mere precedential effect of an adjudicatory order 
within an agency is not enough to confer standing.16  Indeed, as 
the D.C. Circuit has stated, ``we have said before, and we say 
again, that the mere precedential effect of [an] agency's 
rationale in later adjudications is not an injury sufficient to 
confer standing on someone seeking judicial review of the 
agency's ruling.''17  In accordance with those decisions, the 
Common Carrier Bureau has held that the adverse impact of a 
Commission action on a person's litigation strategy in another 
Commission proceeding does not meet the ``adversely affected'' 
test.18  Moreover, to grant non-party requests to reconsider 
Commission adjudicatory orders based upon the limited interest 
asserted by Petitioners here would open the ``floodgates'' to 
non-party participation in adjudicatory proceedings, and thus 
effectively convert every adjudicatory proceeding into a 
rulemaking proceeding.19  Thus, we conclude that Petitioners have 
not shown that the BTI Order adversely affects them within the 
meaning of section 405(a) of the Act and section 1.106(b)(1) of 
our rules.20

     III.B.    Petitioners Have Not Shown Good Reason Why They 
          Failed to Participate Earlier in the Proceeding.

Petitioners did not participate, nor did they seek to 
participate, earlier in this proceeding.21  Petitioners allege 
that they had ``good reason'' within the meaning of section 
1.106(b)(1) of our rules for failing to seek participation 
earlier in the proceeding:  they had no way to foresee that the 
Commission would reach the result that it did.22  Again, we 
disagree.

As explained in the BTI Order, ample court and Commission 
precedent indicates that the Commission may award damages in a 
section 208 complaint proceeding based on the difference between 
the rate charged and a just and reasonable rate under section 
201(b).23  Consistent with that longstanding authority, the 
Commission clearly stated in 1997 that formal complaints filed 
pursuant to section 208 of the Act to enforce the ``just and 
reasonable'' standard of section 201(b) of the Act could be used 
to constrain and discipline CLEC access rates.24  Moreover, the 
Commission has on several occasions awarded damages for 
violations of section 201(b), even in the absence of specific 
rules applicable to the conduct at issue.25  Finally, the court's 
referral to the Commission of the IXCs' rate-reasonableness 
claims signaled that questions concerning whether and to what 
extent the CLECs' access rates caused compensable harm were 
hardly ``open-and-shut.''26  Thus, contrary to Petitioners' 
assertion otherwise, Petitioners should have known that AT&T and 
Sprint might prevail in this proceeding.27  Accordingly, we 
conclude that Petitioners have not shown that they had ``good 
reason,'' within the meaning of section 1.106(b)(1) of our rules, 
to refrain from seeking to participate earlier in this 
proceeding.28

                         IV.  CONCLUSION

For the foregoing reasons, consistent with our recent decision in 
an analogous case,29 we find that Petitioners have failed to show 
satisfaction of the two requirements set forth in section 405(a) 
of the Act and section 1.106(b)(1) of our rules for a non-party 
to a complaint proceeding to seek reconsideration of the order 
resolving such proceeding.  Each failure, standing alone, is 
sufficient to warrant dismissal of the Petition.  Consequently, 
we dismiss the Petition for lack of standing. 30

                      V.   ORDERING CLAUSE

Accordingly, IT IS ORDERED, pursuant to sections 4(i), 4(j), 208, 
and 405 of the Communications Act of 1934, as amended, 47 U.S.C. 
 154(i), 154(j), 208, and 405, and section 1.106 of the 
Commission's rules, 47 C.F.R.  1.106, that Joint Petitioners' 
Petition for Reconsideration IS DISMISSED.

                         FEDERAL COMMUNICATIONS COMMISSION




                         Magalie Roman Salas
                         Secretary      DISSENTING STATEMENT OF COMMISSIONER KEVIN J. MARTIN

Re:  AT&T Corp. v. Business Telecom, Inc.; Sprint Communications 
     Company, L.P. v. Business Telecom, Inc., Order on 
     Reconsideration, File Nos. EB-01-MD-001 & EB-01-MD-002.
 
     I respectfully dissent from this Order.  I have concerns 
with the original BTI Order's approach to the lawfulness of CLEC 
access charges in the past.  I also have concerns with the lack 
of guidance the Commission has provided on related issues, such 
as whether and under what circumstances IXCs could refuse access 
services.  In my opinion, these issues should have been addressed 
in a more comprehensive fashion.  At this point, however, my main 
concern is that the Commission move quickly to resolve these 
uncertainties, which have had a detrimental impact on the 
marketplace.  

     To be fair, this item was not my preferred forum for 
addressing these issues.  I would rather have considered them in 
declaratory rulings responding to the primary jurisdiction 
referrals made by the United States District Court for the 
Eastern District of Virginia.  That court months ago asked us to 
weigh in on these issues by July, and we have yet to offer any 
response.  And, at this point, it is unclear whether we will do 
so at all.  Accordingly, a reconsideration of the BTI Order may 
be our best and only opportunity to address these issues.  
Although there are legitimate policy reasons not to allow non-
parties standing here, as the Order makes clear, we plainly have 
discretion to hear these non-parties' petitions.  Given the 
unique circumstances, I would have chosen to do so, or to 
reconsider the BTI Order sua sponte.  

_________________________

1    Joint Petition for Reconsideration, File Nos. EB-01-MD-001, 
002 (filed June 29, 2001) (``Petition'').  

2    AT&T Corp. v. Business Telecom, Inc.; Sprint Communications 
Company, L.P. v. Business Telecom, Inc., Memorandum Opinion  and 
Order, FCC 01-185,  2001 WL  575527 (rel. May  30, 2001)  (``BTI 
Order'').

3    The   Joint   Petitioners   are   Association   for   Local 
Telecommunications Services,  Intermedia  Communications,  Inc., 
Mpower Communications, Inc., NuVox Communications, Inc., Winstar 
Communications, Inc., and XO Communications, Inc. (collectively, 
``Petitioners'').

4    See  47  C.F.R.     1.106(b)(1).   In  fact,   Petitioners 
purported to file their Petition pursuant to the wrong rule,  47 
C.F.R.   1.429, which  applies to  rulemaking proceedings,  not 
adjudications.  Petition  at 1.   This error  apparently led  to 
violations of our service rules.   See n.30, infra.  Compare  47 
C.F.R.  1.106(f) (stating that petitions for reconsideration in 
adjudications  ``shall   be   served   upon   parties   to   the 
proceeding'') with 47 C.F.R.  1.429(e) (stating that  petitions 
for reconsideration  in  rulemakings  ``need not  be  served  on 
parties to the  proceeding'').  We note,  however, that even  in 
rulemaking proceedings,  the  Commission encourages  service  of 
reconsideration petitions on  the parties, where,  as here,  the 
number of parties is small.  See 47 C.F.R.  1.429(e).

5    47 U.S.C.  208.

6    Advamtel LLC,  et al.  v. AT&T  Corp., 105  F. Supp.2d  507 
(E.D. Va. 2000); Advamtel LLC,  et al. v. Sprint  Communications 
Company, L.P., 105 F. Supp.2d 476 (E.D. Va. 2000).

7    47 U.S.C.  201(b).  See BTI Order at  17-50.

8    See BTI Order at  53-59.

9    AT&T Corp. v.  FCC, No.  01-1261 (D.C. Cir.  filed Jun.  8, 
2001).

10   Petition at 3; Joint Reply  to Oppositions to Petition  for 
Reconsideration, File  Nos. EB-01-MD-001,  002 (filed  July  19, 
2001), at 2, 5-6 (``Reply'').

11   Reply at 5-6.

12    47 C.F.R.  1.106(b)(1).  See 47 U.S.C.  405(a)  (stating 
that a reconsideration petition may be filed by a non-party  who 
is ``aggrieved or whose interests are adversely affected '' by a 
Commission order).

13   Petition  at  3  (``[S]everal   of  the  Petitioners   were 
recipients  of  threats  from  the  three  major   interexchange 
carriers .  . .  , who  indicated that  they intend  to use  the 
precedent established  in the  [BTI]  Order as  a  sword....''); 
Reply at  2  (``The  day  the [BTI]  Order  was  released,  AT&T 
contacted one  of  the Petitioners,  and  made a  thinly  veiled 
threat to sue  for retroactive  refunds of  its tariffed  access 
charges.''); Reply 5-6 (``AT&T  obviously views the [BTI]  Order 
as establishing  new  precedent  allowing it  to  pursue  formal 
complaints  to   seek  retroactive   refunds  from   any   local 
carrier.'').  To support  this assertion, Petitioners  submitted 
only scant evidentiary support, and did so belatedly.  See Reply 
at Ex. 1.

14   See, e.g., In  the Matter of  Edison Cellular Station  KNKN 
281, Memorandum Opinion and Order on Reconsideration, 8 FCC  Rcd 
2736, 2737 at  7 (Com.  Car. Bur. rel. Apr. 19,  1993)(``Edison 
Reconsideration   Order'')(``Adversely    affected   has    been 
analogized to a  direct economic  injury.''); In  the Matter  of 
Chris C. Hudgins, Order on Reconsideration, 16 FCC Rcd 7941 (WTB 
PSPWD rel. Apr.  12, 2001)  (``Hudgins Reconsideration  Order'') 
(stating that a non-party  petitioner to license renewal  ``must 
allege sufficient facts to demonstrate that failure to grant the 
requested relief would cause the  petitioner to suffer a  direct 
injury''); In the Matter of  the Application of City of  Compton 
Police Department, Order on  Reconsideration, 15 FCC Rcd  16563, 
16566  at    8  (WTB  PSPWD  rel.  Apr.  7,  2000)   (``Compton 
Reconsideration  Order'')  (same   as  Hudgins   Reconsideration 
Order).

15   See In  the  Matter of  Daniel  R. Goodman,  Receiver;  Dr. 
Robert Chan, Order on Reconsideration,  14 FCC Rcd 20547,  20549 
at  4 (1999); Edison Reconsideration Order, 8 FCC Rcd at  2737, 
 7; Hudgins  Reconsideration Order, 16  FCC Rcd at  7944,   8; 
Compton Reconsideration Order, 15 FCC  Rcd at 16566,  8.   Cf., 
In re the Application of  MCI Communications Corp. and  Southern 
Pacific  Telecommunications  Company,  Memorandum  Opinion   and 
Order, 12 FCC Rcd  7790, 7794 at   11 (1997) (applying  Article 
III test  to  determine  whether an  entity  was  a  ``party-in-
interest'' under section 309(d)(1) of the Act); In the Matter of 
Americatel Corporation, Memorandum Opinion, Order, Authorization 
and Certificate, 9 FCC  Rcd 3993, 3995 at   9 (1994)  (applying 
Article  III  test  to  determine  whether  an  entity  was   an 
``interested party'' under rule 63.52(c)); In the Matter of  the 
Applications of Lawrence N. Brandt and Krisar, Inc.,  Memorandum 
Opinion and Order, 3 FCC Rcd 4082, 4082-83 at  5-8 (Com.  Car. 
Bur. Dom. Fac.  Div. rel.  June 24,  1998)(same as  MCI/Southern 
Pacific).

16   See Airtouch  Paging v.  FCC, 234  F.3d 815,  818 (2d  Cir. 
2000)(``Even if  the Commission  were to  view footnote  700  as 
binding in future proceedings, we would have no jurisdiction  to 
consider the  issue unless  and  until such  future  proceedings 
result in a cognizable injury to Airtouch.''); Sea-Land Service, 
Inc. v. Department  of Transportation, 137  F.3d 640, 648  (D.C. 
Cir. 1998)(``[M]ere precedential effect within an agency is not, 
alone, enough  to create  Article III  standing, no  matter  how 
foreseeable the future litigation.''); Shell Oil Co. v. FERC, 47 
F.3d 1186, 1202 (D.C. Cir. 1995)(``a litigant's interest in  [an 
agency's] legal reasoning and its potential precedential  effect 
does not  by  itself  confer  standing where,  as  here,  it  is 
uncoupled from any injury in fact caused by the substance of the 
[agency's] adjudicatory action.'')(citations and quotation marks 
omitted); Crowley  Caribbean Transport,  Inc. v.  Pena, 37  F.3d 
671, 674 (D.C. Cir. 1994)(same as Shell Oil); Telecommunications 
Research and Action Center v. FCC, 917 F.2d 585, 588 (D.C.  Cir. 
1990)(same as  Shell Oil);  Shipbuilders Council  of America  v. 
United States, 868 F.2d 452,  456 (D.C. Cir. 1989)(``we know  of 
no authority recognizing  that the  mere potential  precedential 
effect of an agency action affords a bystander to that action  a 
basis for complaint'');  Radiofone, Inc. v.  FCC, 759 F.2d  936, 
938-39 (D.C. Cir. 1985) (``Radiofone v. FCC'')(separate  opinion 
of Scalia, J.)(stating that,  in order for  a non-party to  have 
standing  to  challenge  an  agency's  adjudicatory  order,  its 
``injury must still arise from the particular activity which the 
agency  adjudication  approved  ...   and  not  from  the   mere 
precedential  effect  of   the  agency's   rationale  in   later 
adjudications''); American  Public  Power Association  v.  FERC, 
2000  WL  1946584  (D.C.  Cir.  2000)(``Petitioners  base  their 
standing on  the  potential  precedential effect  of  an  agency 
action; this by itself  does not suffice  to confer Article  III 
standing.'').

17    AFLAC of  Columbus v. FCC,  129 F.3d 625,  629 (D.C.  Cir. 
1997)(citation and quotation marks omitted).

18   Edison Reconsideration Order, 8 FCC Rcd at 2737,  7.

19   See generally Radiofone. v. FCC, 759 F.2d at 938-39 
(observing that an adjudicatory order ``affects'' non-parties 
differently than a rulemaking order). Petitioners' reliance on 
Shell Oil v. FERC and Sea-Land v. DOT is misplaced.  In 
Petitioners' view, those cases stand for the proposition that, if 
an adjudicatory order increases the prospect of future litigation 
for a non-party to the order, the non-party has standing to seek 
review of the order.  Reply at 5-6.  Petitioners' view is 
erroneous.  The parts of those cases on which Petitioners 
mistakenly rely (Sea-Land v. DOT, 137 F.3d at 648; Shell Oil v. 
FERC, 47 F.3d at 1202) suggest merely that a party may appeal an 
agency's decision to exercise jurisdiction over a matter, even if 
the agency ruled in favor of the party on the merits, but only if 
the agency's decision will trigger an ```inevitable and 
repeating' course of litigation, between the same parties, all 
based on a single jurisdictional issue.''  City of Cleveland, 
Ohio v. U.S. Nuclear Regulatory Commission, 68 F.3d 1361, 1370 
(D.C. Cir. 1995)(emphasis added).  Those circumstances do not 
exist here.  The BTI Order did not decide a jurisdictional issue; 
any future litigation would not involve the same parties as in 
the BTI proceedings, i.e., BTI; and the Commission has recently 
adopted rules that should prevent the onset of any repeating 
course of litigation regarding the reasonableness of CLECs' 
future access rates.  Access Charge Reform, Seventh Report and 
Order and Further Notice of Proposed Rulemaking, FCC No. 01-146, 
2001 WL 431685 (rel. Apr. 27, 2001)(``CLEC Access Charge 
Order'').

20   We  note  that,  although  the  BTI  Order  will  serve  as 
precedent in any future case  involving the reasonableness of  a 
CLEC's access  rates,  any such  case  will be  decided  on  the 
specific facts in that case's record.

21   That is  not  to say  that,  had Petitioners  attempted  to 
intervene as a  party, they  would have  been successful.   See, 
e.g., Teleconnect  Co.  v.  The Bell  Company  of  Pennsylvania, 
Memorandum Opinion and Order, 6 FCC  Rcd 5202, 5206 at   18-20 
(Com. Car. Bur. 1991), aff'd on review, 10 FCC Rcd 1626  (1995).  
We note that Petitioners  failed even to seek  leave to file  an 
amicus brief or  supporting memorandum of  law.  See  generally, 
Pleading Schedule Established for AT&T Corp. et al. v. Ameritech 
Corp., Public Notice,  13 FCC  Rcd 12057 (Com.  Car. Bur.  1998) 
(stating that, in a formal complaint proceeding, ``[w]e will ... 
consider on a case-by-case basis motions by non-parties  wishing 
to submit amicus-type filings addressing the legal issues raised 
in this proceeding'').

22   Reply at 5-6.  Petitioners asserted this argument for  this 
first  time  in  their   Reply.   In  their  initial   Petition, 
Petitioners made  no  attempt  to satisfy  the  ``good  reason'' 
requirement.  As a result, Petitioners deprived AT&T and  Sprint 
of an  opportunity  to  respond.  This  alone  might  have  been 
sufficient basis for us to  dismiss the Petition for failure  to 
show  satisfaction   of   the   ``good   reason''   requirement.  
Nevertheless, as  described  above,  we  consider   Petitioners' 
``good reason'' argument on the merits.

23   BTI Order at   9-12.  See Global Naps,  Inc. v. FCC,  247 
F.3d 252, 259 (D.C. Cir. 2001); Hi-Tech Furnace Systems, Inc. v. 
FCC, 224  F.3d 781,  786 (D.C.  Cir. 2000);  CLEC Access  Charge 
Order, 2001  WL  431685;  New  Valley  Corp.  v.  Pacific  Bell, 
Memorandum Opinion  and Order,  15 FCC  Rcd 5128,  5133  (2000); 
Halprin, Temple,  Goodman  & Sugrue  v.  MCI  Telecommunications 
Corp., Memorandum Opinion  and Order,  13 FCC  Rcd 22568,  22573 
(1998), recon. denied, 14  FCC Rcd 21092 (1999);  Implementation 
of Section 402(b)(1)(A) of  the Telecommunications Act of  1996, 
Report and  Order, 12  FCC  Rcd 2170,  2181-82 (1997);  AT&T  v. 
Telephone Utilities  Exchange  Carrier  Association,  Memorandum 
Opinion and Order,  10 FCC  Rcd 8405, 8414-15  (1995); ACC  Long 
Distance Corp.  v. New  York Tel.  Co., Memorandum  Opinion  and 
Order, 9  FCC Rcd  1659, 1661-62  (1994); Allnet  Communications 
Services, Inc. v. U S West, Inc., Memorandum Opinion and  Order, 
8  FCC  Rcd  3017,  3021-22  (1993);  Communications   Satellite 
Corporation, Memorandum Opinion and Order, 3 FCC Rcd 2643,  2647 
(1988); National Exchange Carrier Association, Inc.,  Memorandum 
Opinion and Order,  2 FCC  Rcd 3679 (1987).   See generally  MCI 
Telecommunications Corp. v. FCC, 59  F.3d 1407, 1415 (D.C.  Cir. 
1995).

24   BTI Order at   24.   See Access Charge  Reform, Notice  of 
Proposed Rulemaking, 11 FCC Rcd  21354, 21472, at  271  (1996); 
Access Charge Reform, First Report and Order, 12 FCC Rcd  15982, 
16140,  at    363  (1997);  Hyperion  Telecommunications,  Inc. 
Petition for Forbearance, Memorandum  Opinion and Order, 12  FCC 
Rcd 8596, 8609, at  25 (1997). 

25   See,   e.g.,   Ascom   Communications,   Inc.   v.   Sprint 
Communications Company, L.P.,  15 FCC Rcd  3223 (2000);  Rainbow 
Programming Holdings, Inc. v. Bell Atlantic-New Jersey, Inc., 15 
FCC Rcd  11754  (Com.  Car.  Bur. rel.  July  6,  2000);  Hi-Rim 
Communications, Inc. v. MCI Telecommunications Corp., 13 FCC Rcd 
6551 (Com. Car. Bur. rel. Mar. 30, 1998); People's Network, Inc. 
v. AT&T Telephone and Telegraph Company, 12 FCC Rcd 21081  (Com. 
Car. Bur. rel. Apr. 10, 1997).

26   Indeed, the IXCs'  claims that  the court  referred to  the 
Commission expressly requested  an award of  damages based on  a 
determination of  a  past  reasonable rate.   Answer  to  Second 
Amended Complaint and Counterclaims of AT&T Corp., Advamtel, LLC 
v. AT&T Corp. et al., Civil Action No. 00-643-A (E.D. Va.  filed 
Aug.  18,   2000)  at   pp.   36-37;  Counterclaim   of   Sprint 
Communications Company, L.P.,  Advamtel, LLC v.  AT&T Corp.,  et 
al., Civil Action No. 00-643-A (E.D. Va. filed Aug. 18, 2000) at 
 19 and p. 4.

27   Although Petitioners  do not  explicitly assert  that  they 
lacked awareness of  the pendency  of this  proceeding, we  note 
that two of the Petitioners are parties to the court  litigation 
from which this proceeding derives, and were part of the process 
that led to the BTI complaint being chosen as the lead complaint 
regarding the issues referred by  the court.  We also note  that 
Petitioners' counsel represents BTI and all of the other parties 
to the court litigation.  

28   See generally Committee  for Community Access  v. FCC,  737 
F.2d 74, 84 (D.C. Cir. 1984) (rejecting ``surprise'' as a  basis 
for failing to participate earlier); The Seven Hills  Television 
Company, Memorandum Opinion  and Order, 3  FCC Rcd 826,  at   2 
(1988)  (same);  Press  Broadcasting  Company  and  Silver  King 
Broadcasting of Vineland, Inc., Memorandum Opinion and Order,  3 
FCC Rcd 6640, at  5 (1988) (same).  

29   TSR Wireless v. U S West Order, 2001 WL 536914 (2001).

30   Continuing a pattern of service rule violations, see Letter 
from  Anthony   J.   DeLaurentis,  Attorney,   Market   Disputes 
Resolution   Division,   Enforcement   Bureau,   to   James   F. 
Bendernagel, Counsel for  AT&T, Jonathan E.  Canis, Counsel  for 
BTI, and Cheryl A. Tritt,  Counsel for Sprint, File Nos.  EB-01-
MD-001,  002   (Feb.   16,  2001);  Response   of  the  FCC   to 
Petitioners' Emergency Motion for Stay, Mpower Comm. Corp. et al 
v. FCC, No. 01-1280  (D.C. Cir. filed Jun.  26, 2001) at 8  n.8, 
Petitioners' counsel improperly failed to serve the parties  (or 
Commission counsel)  on the  same day  that they  submitted  the 
Petition to the Commission, and failed to include a proper proof 
of service.   See  47 C.F.R.    1.47(b), (c),  (g),  1.106(f), 
1.735(f); Letter from Anthony  J. DeLaurentis, Attorney,  Market 
Disputes Resolution Division,  Enforcement Bureau,  to James  F. 
Bendernagel, Counsel for  AT&T, Jonathan E.  Canis, Counsel  for 
BTI, and Cheryl A. Tritt,  Counsel for Sprint, File Nos.  EB-01-
MD-001, 002  (Jan. 18, 2001).  Because Petitioners submitted the 
Petition to the Commission Secretary on the last day for  filing 
permitted by the Act and our  rules, see 47 U.S.C.  405(a);  47 
C.F.R.  1.106  (f), these  service rule  violations might  have 
provided another independent basis for dismissing the  Petition.  
See generally  Charter  Communications, Memorandum  Opinion  and 
Order, 14 FCC Rcd 13511, 13512  (1999).  We need not reach  that 
question, however, because we dismiss the Petition on the  other 
grounds discussed above.