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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


   Adopted:  September 27, 2001         Released:    October   1, 

2001

By the Commission:

                        I.   INTRODUCTION

In this Order, we deny the Joint Motion to Change [the] Ex Parte 
Status of [this] Proceeding (``Motion'') filed by non-parties The 
Association for Local Telecommunications Services, Intermedia 
Communications, Inc., Mpower Communications, Inc., NuVox 
Communications, Inc., and Winstar Communications, Inc. 
(collectively, ``Petitioners'').  As explained below, the public 
interest does not support changing the ex parte status of this 
adjudicatory proceeding from ``restricted'' to ``permit-but-
disclose''.  In particular, Petitioners have not shown that the 
public interest would benefit from the exclusion of the three 
parties to these formal complaint proceedings from any meetings 
that Petitioners may wish to have with Commission decision-making 
personnel.  We emphasize, however, that Petitioners are (and 
always have been) free to schedule meetings with Commission 
decision-making personnel to discuss the BTI Order, as long as 
the three parties to these formal complaint proceedings have 
notice of and reasonable opportunity to participate in such 
meetings.

                         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'')1 and a primary 
jurisdiction referral from the United States District Court for 
the Eastern District of Virginia.2  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.3  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.4

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.5

 None of the Petitioners is a party to these formal complaint 
proceedings, which the Commission adjudicated in the BTI Order.  
Nevertheless, on June 29, 2001, Petitioners submitted to the 
Commission Secretary a Joint Petition for Reconsideration of the 
BTI Order.6  Five weeks later, on August 3, 2001, Petitioners 
filed the instant motion seeking alteration of the ex parte 
status of these complaint proceedings from ``restricted'' to 
``permit-but-disclose.''7  Petitioners assert that the public 
interest requires such a change, because ``[t]he BTI Order 
necessarily has wide ramifications for the entire competitive 
telecommunications industry'',8 and ``as long as the proceeding 
remains restricted, no party [or non-party] may schedule meetings 
with Commissioners and staff to explain first hand how the [BTI 
Order] affects it and the entire industry.''9  AT&T and Sprint 
oppose the Motion, arguing, inter alia, that changing the ex 
parte status of this proceeding could prejudice their rights.10  
BTI has taken no position on the Motion.

                      III.      DISCUSSION

Under the Commission's rules, a ``presentation'' is a 
``communication directed to the merits or outcome of a 
proceeding....''11  An ``ex parte presentation'' is ``[a]ny 
presentation which:  (1) if written, is not served on the parties 
to the proceeding; or (2) if oral, is made without advance notice 
to the parties and without opportunity for them to be 
present.''12  In a ``permit-but-disclose'' proceeding, a person 
may make an ex parte presentation to Commission decision-making 
personnel, as long as the person promptly places in the public 
record the substance of the presentation.13  In a ``restricted'' 
proceeding, by contrast, no one may make an ex parte presentation 
to Commission decision-making personnel (with certain exceptions 
not applicable here).14

Proceedings in which the Commission adjudicates formal complaints 
brought against common carriers pursuant to section 208 of the 
Communications Act of 1934, as amended (``Act''),15 are 
``restricted.''16  Accordingly, these complaint proceedings in 
which the Commission released the BTI Order are restricted.17  
This means that no person may make to any Commission decision-
making personnel any communication directed to the merits or 
outcome of the BTI Order, unless the communication, if written, 
is served on the parties to the proceeding, or unless the 
communication, if oral, is made with advance notice to the 
parties and with opportunity for them to be present.18  The 
Commission makes its formal complaint proceedings ``restricted'' 
to ensure, inter alia, that it conducts its adjudications in a 
manner that preserves fairness and the appearance of fairness to 
the parties.19  However, ``[w]here the public interest so 
requires in a particular proceeding, the Commission and its staff 
retain the discretion to modify the applicable ex parte 
rules....''20  Petitioners bear the burden of demonstrating that 
the standard is met by the preponderance of the evidence.

Petitioners have failed to meet the burden of demonstrating that 
the public interest requires modification of the applicable rules 
from ``restricted'' to ``permit-but-disclose.''  First, 
Petitioners have not shown that they cannot fully present their 
position within the parameters of a restricted proceeding.  
Contrary to Petitioners' assertion otherwise, Petitioners may 
schedule meetings with Commission decision-making personnel to 
discuss their concerns about the BTI Order.  They simply must 
ensure that all of the parties to these proceedings have fair 
notice of and reasonable opportunity to attend such meetings.  
Given the relatively small number of parties involved (i.e., 
three), such scheduling should not be unduly difficult.  

Second, as AT&T and Sprint point out, Petitioners have not shown 
how the public interest would benefit by excluding the parties - 
the two plaintiffs and the defendant - from meetings with 
Commission decision-makers.  We note that all of the parties have 
petitioned for review of the BTI Order in the D.C. Circuit.  
While they are litigating the BTI Order in court, and absent any 
persuasive countervailing public interest basis for making this 
matter a ``permit-but-disclose'' proceeding, we believe the 
parties should continue to have advance notice of and the 
opportunity to participate in any communications at the 
Commission about the BTI Order.

Petitioners rely on four decisions in proceedings in which the 
applicable ex parte rules were switched from restricted to 
permit-but-disclose.21   Two of those decisions did not involve 
formal complaint adjudications under section 208 of the Act.22  
The other two of those decisions did involve formal complaints, 
but the complaints closely related to pending non-complaint 
proceedings governed by the permit-but-disclose rules.23  That is 
not the situation here.24  Moreover, all four of those decisions 
pre-date the creation of the Enforcement Bureau, which the 
Commission designed, inter alia, to enhance the fairness, 
objectivity, and transparency of its adjudicatory processes.  
Consistent with that design, since the Enforcement Bureau began, 
every formal complaint proceeding has remained restricted for ex 
parte purposes.  Thus, the authorities cited by Petitioners do 
not indicate that the public interest requires changing the 
applicable ex parte rules in this case.  Accordingly, 
Petitioners' Motion is denied.

                      IV.  ORDERING CLAUSE

Accordingly, IT IS ORDERED, pursuant to sections 4(i), 4(j), and 
208 of the Communications Act of 1934, as amended, 47 U.S.C.  
154(i), 154(j), 208, and sections 1.727 and 1.1200-1.1216 of the 
Commission's rules, 47 C.F.R.  1.727, 1.1200-1.1216, that 
Petitioners' Joint Motion to Change [the] Ex Parte Status of 
[this] Proceeding IS DENIED.

                         FEDERAL COMMUNICATIONS COMMISSION



                         Magalie Roman Salas
                         Secretary
_________________________

1    47 U.S.C.  208.

2    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).

3    47 U.S.C.  201(b).  See BTI Order at  17-50.

4    See BTI Order at  53-59.

5    AT&T Corp. v. FCC, No. 01-1261 (D.C. Cir.).

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

7    Petitioners waited  35  days  (five weeks)  to  file  their 
motion, which in itself suggests the lack of need to change  the 
ex parte status of these proceedings.

8    Motion at 3.  See id. at 6-7.

9    Motion at 4.  See id. at 8-9. 

10   Opposition of AT&T Corp. to Joint Motion To Change Ex Parte 
Status of Proceeding, File Nos. EB-01-MD-001, 002 (filed Aug. 9, 
2001) at 4  (stating that  ``such ex  parte presentations  could 
only taint the record in  this case''); Opposition of Sprint  to 
Joint Motion, File Nos. EB-01-MD-001, 002 (filed Aug. 10,  2001) 
at 2 (noting that ``[a]ll three parties to this proceeding  have 
elected to seek judicial review of  the [BTI] Order in the  U.S. 
Court of Appeals for the District of Columbia Circuit'').

11   47 C.F.R.  1.1202(a).

12   47 C.F.R.  1.1202(b).

13   47 C.F.R.  1.1202(c), 1.1206.

14   47 C.F.R.  1.1208, 1.1204.

15   47 U.S.C.  208.

16   47 C.F.R.  1.1208, 1.1206, 1.1204.

17   See, e.g., Letter  from Alexander P.  Starr, Chief,  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).

18   47 C.F.R.    1.1202,  1.1208.   See,  e.g.,  Letter  from 
Anthony J.  DeLaurentis,  Attorney, Market  Disputes  Resolution 
Division, Enforcement Bureau, to  James F. Bendernagel,  Counsel 
for AT&T,  Russell  M.  Blau, Counsel  for  BTI,  Cheryl  Tritt, 
Counsel for Sprint, and Jonathan E. Canis, Counsel for  Informal 
Complaint Defendants, File  Nos. EB-01-MD-001, 002;  EB-01-MDIC-
0002-0016 (June 12, 2001);  Letter from Anthony J.  DeLaurentis, 
Attorney,  Market  Disputes  Resolution  Division,   Enforcement 
Bureau, to James  F. Bendernagel, Counsel  for AT&T, Russell  M. 
Blau, Counsel for BTI, Cheryl Tritt, Counsel for Sprint, Richard 
Juhnke, Counsel  for  Sprint,  Jonathan E.  Canis,  Counsel  for 
Informal Complaint Defendants, and Richard Metzger, Counsel  for 
Focal Communications, File  Nos. EB-01-MD-001, 002;  EB-01-MDIC-
0002-0016 (July 30, 2001);  Letter from Anthony J.  DeLaurentis, 
Attorney,  Market  Disputes  Resolution  Division,   Enforcement 
Bureau, to James  F. Bendernagel, Counsel  for AT&T, Russell  M. 
Blau, Counsel for BTI, Cheryl Tritt, Counsel for Sprint, Richard 
Juhnke, Counsel  for  Sprint,  Jonathan E.  Canis,  Counsel  for 
Informal Complaint Defendants, and Richard Metzger, Counsel  for 
Focal Communications, File  Nos. EB-01-MD-001, 002;  EB-01-MDIC-
0002-0016 (Aug. 3, 2001).

19   In the Matter of  Amendment of 47 C.F.R.   1.1200 Et  Seq. 
Concerning Ex  Parte  Presentations In  Commission  Proceedings, 
Report and Order, 12 FCC Rcd 7348, 7351-52 at  11 (1997).

20   47 C.F.R.  1.1200(a).  See id. at  1.1208, Note 2.

21   Motion at 5 n.5, 8 (citing ``Permit But Disclose'' Ex Parte 
Status Accorded to  Proceeding Involving  Applications Filed  by 
Airtouch Communications,  Inc. and  Vodafone Group,  P.L.C.  for 
Consent to Transfer Control of Airtouch Communications, Inc.  to 
Vodafone Group. P.L.C., Public Notice, DA 99-304, 1999 WL 317594 
(Com. Car. Bur. rel. May 20, 1999) (``Airtouch  Applications''); 
Ex Parte Procedures  Established for Formal  Complaint filed  by 
MCI Telecommunications  Corp. and  MCIMetro Access  Transmission 
Services, Inc., Against Bell  Atlantic Corp., File No.  E-98-12, 
Public Notice, DA 98-89, 13 FCC Rcd 887 (Wireless Tel. Bur. rel. 
Jan. 16, 1998)  (``MCI v. Bell  Atlantic''); Beehive  Telephone, 
Inc, et al. v. The Bell Operating Companies, Memorandum  Opinion 
and Order, 12 FCC Rcd 17930 (1997) (``Beehive v. Bell  Operating 
Companies''); Commission  Applies  ``Permit  But  Disclose''  Ex 
Parte Rules  to  Reconsideration  of  United  Artists  Cable  of 
Baltimore, Public Notice,  DA 95-1366,  10 FCC  Rcd 13743  (Cab. 
Serv. Bur. rel. June 19, 1995) (``United Artists''). 

22   See Airtouch Applications, supra; United Artists, supra.  

23   See MCI v. Bell Atlantic, supra;  Beehive v. Bell Operating 
Companies, 12 FCC Rcd at 17931-36.

24   Although these formal complaint proceedings arise from  the 
same  court   litigation  as   a  pending,   permit-but-disclose 
declaratory  ruling  proceeding,  see   AT&T  and  Sprint   File 
Petitions for Declaratory Ruling  on CLEC Access Charge  Issues, 
CCB/CPD File No. 01-02, Public Notice, DA-01-301, 2001 WL  92220 
(Com. Car.  Bur.  rel. Feb.  5,  2001), the  declaratory  ruling 
petitions do not address the  contested subject here, i.e.,  the 
reasonableness of  past CLEC  access rates.   Thus,  Petitioners 
correctly do not  contend that the  pendency of the  declaratory 
ruling petitions pertains  to the propriety  of changing the  ex 
parte status of these formal complaint proceedings.