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

In the Matter of                 )
AT&T Corp.,                      )
                          Com-   )
plainant,                        )
                                )    File No. EB-04-MD-010
v.                               )
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 
Sprint's petition.9 


  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.


  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 



                         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.