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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
AT&T Corp., )
) File No. EB-04-MD-010
BellSouth Telecommunications, )
ORDER ON RECONSIDERATION
Adopted: April 11, 2005 Released: April 11,
By the Commission:
1. In this Order on Reconsideration, we dismiss a petition
that Sprint Communications Co., L.P. (``Sprint'') filed1 seeking
reconsideration of our Memorandum Opinion and Order2 resolving a
formal complaint filed by AT&T Corp. Inc. (``AT&T'') against
BellSouth Telecommunications, Inc. (``BellSouth'') under section
208 of the Communications Act of 1934, as amended (``the Act'').3
We find that Sprint has failed to satisfy one of the two
requirements for non-parties to seek reconsideration of a
Commission order in an adjudicatory proceeding.4
2. Briefly, and in pertinent part, the AT&T/BellSouth Order
found that one of BellSouth's optional tariff discount plans for
special access services, the Transport Savings Plan (``TSP''),
discriminated in favor of BellSouth's interexchange affiliate,
BellSouth Long Distance, Inc. (``BellSouth Long Distance''), in
violation of section 272 of the Act.5 The AT&T/BellSouth Order
directed BellSouth to amend the TSP so that (i) TSP customers
cannot renew participation in the Plan, and (ii) the TSP will
terminate on June 9, 2005.6
3. Sprint's petition for reconsideration seeks to modify the
remedy for BellSouth's violation of section 272.7 Although
Sprint is a TSP customer,8 Sprint was not a party to the
complaint proceeding, and never sought to participate in the
complaint proceeding in any way. Both of the actual parties to
the complaint proceeding - AT&T and BellSouth - oppose non-party
4. Under section 405(a) of the Act, a non-party to a
Commission adjudication may seek reconsideration of the order if
the non-party is ``aggrieved'' or ``adversely affected'' by the
order.10 To implement section 405(a) of the Act, section
1.106(b)(1) of our rules provides, in pertinent part:
If the petition [for reconsideration] is filed by
a person who is not a party to the proceeding, it
shall state with particularity the manner in which
the person's interests are adversely affected by
the action taken, and shall show good reason why
it was not possible for him to participate in the
earlier stages of the proceeding.11
A failure to demonstrate either of those two requirements
set forth in rule 1.106(b)(1) means that a non-party's
reconsideration petition will not be considered.12
5. Here, petitioner Sprint was not a party to this complaint
proceeding. In an attempt to satisfy the two requirements of
rule 1.106(b)(1), Sprint argues that, because it is a TSP
customer, the Commission's remedy creates a likelihood of harm to
Sprint.13 Sprint also argues that, because third parties
``ordinarily'' have no right to participate or intervene in a
section 208 complaint proceeding, and because it could not have
anticipated that the Commission's resolution of AT&T's complaint
against BellSouth would result in the TSP's termination, Sprint
could not have participated in this proceeding at an earlier
6. Applying rule 1.106(b)(1) here, we find that Sprint has
failed to demonstrate good reason why it was not possible for
Sprint to participate at an earlier stage of this complaint
proceeding.15 First, although third parties rarely participate
in formal complaint proceedings, Sprint had every right and
opportunity to petition to file an amicus brief or seek to
intervene.16 Sprint did neither.17 Second, ``surprise'' at the
outcome of a Commission proceeding does not ordinarily excuse a
failure to attempt to participate earlier in the proceeding.18
In any event, Sprint had no reasonable basis to be ``surprised''
at the remedy provided by the AT&T/BellSouth Order. For example,
the briefs and other pleadings made clear that termination of the
TSP was one potential remedy that the parties foresaw.19 As
BellSouth correctly observes, far from having no reason to
anticipate the Commission's remedy here, ``anyone who read AT&T's
complaint . . . was doubtless aware that AT&T was asking the
Commission to find the TSP unlawful,'' and that any such finding
would likely trigger a substantial change in the status quo.20
Indeed, Sprint ``needed only to read BellSouth's briefs to the
Commission, in which BellSouth expressly argued that, if it were
found liable, `the only available remedy would be to eliminate
the TSP . . . as written in [its] entirety.'''21 Thus, the
record in this proceeding gave Sprint every reason to understand
that one option available to the Commission in response to AT&T's
complaint was to order the termination of the TSP.
7. For the foregoing reasons, and consistent with
substantial Commission precedent, we find that petitioner Sprint
has failed to satisfy one of the two requirements set forth in
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. Consequently, we dismiss the Petition.
IV. ORDERING CLAUSE
8. 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(b)(1) of the Commission's rules, 47 C.F.R. § 1.106(b)(1),
that the Petition for Reconsideration of Sprint Communications
Co., L.P. IS DISMISSED.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
1 Petition for Reconsideration of Sprint Communications Co.,
L.P., File No. EB-04-MD-010 (filed Jan. 10, 2005) (``Sprint
2 AT&T Corp. v. BellSouth Telecommunications, Inc., Memorandum
Opinion and Order, FCC 04-278, 2004 WL 2851490 (rel. Dec. 9,
2004) (``AT&T/BellSouth Order'').
3 47 U.S.C. § 208.
4 See 47 C.F.R. § 1.106(b)(1). See also, Matter of Infinity
Broadcasting Operations, Inc., Memorandum Opinion and Order, 19
FCC Rcd 20156 (2004) (``Infinity Broadcasting''); Texcom, Inc.
d/b/a Answer Indiana v. Bell Atlantic Corp, Order on
Reconsideration, 17 FCC Rcd 6275 (2002) (``Answer Indiana'');
AT&T Corp. v. Business Telecom, Inc., Order on Reconsideration,
16 FCC Rcd 21750 (2001) (``AT&T v. BTI'').
5 47 U.S.C. § 272. See AT&T/BellSouth Order at paras. 29-33, 35-
6 Id. at para. 53.
7 Sprint Petition at 3.
8 Id. at 4.
9 Opposition of AT&T Corp. to Petition for Reconsideration of
Sprint Communications Co., L.P., File No. EB-04-MD-010 (filed
Jan. 18, 2005) (``AT&T Opposition''); BellSouth
Telecommunications, Inc.'s Opposition to Petition for
Reconsideration of Sprint Communications Co., L.P., File No. EB-
010-MD-04 (filed Jan. 18, 2005) (``BellSouth Opposition'').
10 47 U.S.C. § 405(a).
11 47 C.F.R. § 1.106(b)(1) (emphasis added).
12 See, e.g., Infinity Broadcasting; Answer Indiana; AT&T v. BTI;
TSR Wireless, LLC v. US West Communications, Inc., Order on
Reconsideration, 16 FCC Rcd 11462 (2001); Heritage Cablevision
Associates of Dallas, L.P. v Texas Utilities Electric Co.,
Memorandum Opinion and Order, 7 FCC Rcd 4192, 4192 (1992)
(``Heritage v. Texas Utilities''); GTE Telenet Communications
Corp. v. AT&T Co., Memorandum Opinion and Order, 1 FCC Rcd 367,
367 (Com. Car. Bur. 1986) (``GTE v. AT&T'').
13 Sprint Petition at 3-4; Reply of Sprint Communications Co.,
L.P. to Comments on Petition for Reconsideration, File No. EB-04-
MD-010 (filed Jan. 24, 2005) (``Sprint Reply'') at 2-3.
14 Sprint Petition at 4; Sprint Reply at 2-3.
15 For purposes of this Order only, we will assume, arguendo,
that the AT&T/BellSouth Order ``aggrieves'' Sprint. We note,
however, that Sprint's assertions of harm are vague, cursory,
conclusory, and speculative. See Sprint Petition at 5-6. See
also BellSouth Opposition at 2-3 (urging that Sprint's claimed
injury, far from being set forth ``with particularity,'' is
purely speculative, based on a possible worsening of its
position, if BellSouth fails to develop a successor special
access volume discount plan, or if such plan provides a less
desirable option than was available under the TSP - none of which
can be known for several months).
16 See generally, AT&T v BTI, 16 FCC Rcd at 21754, n.21 (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.'') (quoting Pleading Cycle Established for
AT&T Corp. v. Ameritech Corp., Public Notice, 13 FCC Rcd 12057,
12058 (Com. Car. Bur. 1998)).
17 See, e.g., Heritage v. Texas Utilities, 7 FCC Rcd at 4192,
paras. 6-7 (dismissing a non-party's petition for reconsideration
of an order in an adjudicatory proceeding, where the non-party
``failed to participate either as an intervenor or amicus,''
though it ``could have moved the Commission for leave to
participate, either as amicus or intervenor, [even] after the
pleading cycle closed.''). We do not imply that, had Sprint
attempted to intervene as a party, it would necessarily have been
successful. See, e.g., AT&T v BTI, 16 FCC Rcd at 21754, n.21,
citing Teleconnect Co. v. The Bell Co. of Pennsylvania,
Memorandum Opinion and Order, 6 FCC Rcd 5202, 5206 at paras. 18-
20 (Com. Car. Bur. 1991), aff'd on review, 10 FCC Rcd 1626
(1995). Here, however, Sprint made no such effort.
18 See, e.g., GTE v. AT&T, 1 FCC Rcd at 367, para. 6. Cf.,
Committee for Community Access v. FCC, 737 F.2d 74, 84 (D.C. Cir.
1984) (``If we were to require the Commission to accept surprise
as a sufficient justification for a new party to seek
reconsideration, the Commission's - and indeed the public's -
interest in the finality of licensing decisions would be
19 See, e.g., AT&T Supplemental Filing in Response to Commission
Notice of Formal Complaint of AT&T, File No. EB-04-MD-010 (filed
July 13, 2004) (``AT&T Supplement'') at 4-10 (addressing
termination as a possible outcome); Complainant AT&T's Reply to
Defendant BellSouth's Answer, File No. EB-04-MD-010 (filed July
26, 2004) (``AT&T Reply'') at 26-28 (describing breadth of
Commission's authority to fashion a remedy); Complainant's
Initial Brief, File. No. EB-04-MD-010 (filed Sept. 22, 2004)
(``AT&T Initial Brief'') at 163-67 (same); Complainant's Reply
Brief, File No. EB-04-MD-010 (filed Oct. 4, 2004) (``AT&T Reply
Brief'') at 82 n.268 (discussing remedies, including striking of
the ``evergreen provision''); BellSouth's Initial Brief, EB-04-
MD-010 (filed Sept. 22, 2004) (``BellSouth Initial Brief'') at 5
(stating that, ``were the Commission to hold the discount plans
unlawful, the only available remedy would be to eliminate the TSP
and the PSIP as written in their entirety''), 6 (stating, ``[f]or
example, the Commission could strike the plans completely''), 8
(discussing the impact of terminating these discount plans).
20 BellSouth Opposition at 3.
21 Id. at 4, quoting BellSouth's Initial Brief at 5.