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


In the Matter of                 )
                                )
AT&T Corp.,                      )
                                 )    File No. EB-00-MD-011
      Complainant,               )
v.                               )
                                )
New York Telephone Company,      )
d/b/a Bell Atlantic - New York,  )

       Defendant.


                  MEMORANDUM OPINION AND ORDER

   Adopted: October 5, 2000                     Released: October 

6, 2000

By the Commission:  Chairman Kennard and Commissioner Ness 
issuing separate statements

                        I.   INTRODUCTION

     1.   In this Memorandum Opinion and Order, we deny the 
complaint filed pursuant to sections 208 and 271(d)(6) of the 
Communications Act of 1934, as amended (Act),1 by AT&T Corp. 
(AT&T) against New York Telephone Company, d/b/a Bell Atlantic - 
New York (Bell Atlantic).  Pursuant to section 271(d)(3) of the 
Act, this Commission has previously authorized Bell Atlantic to 
provide interexchange services in the State of  New York.  In its 
complaint, AT&T alleges that the manner in which Bell Atlantic 
markets the services of its long distance affiliate, Bell 
Atlantic Communications, Inc. (BACI), during incoming calls from 
its existing local exchange customers violates section 272 of the 
Act.2  For the reasons discussed below, we find that AT&T 
misstates Bell Atlantic's obligations pursuant to section 272, 
and deny AT&T's complaint.



                         II.  BACKGROUND

     2.   Complainant AT&T provides interexchange (i.e., long 
distance) telecommunications services throughout the United 
States.  It also provides local exchange telecommunications 
services in the State of New York and elsewhere.  Defendant Bell 
Atlantic is a ``Bell Operating Company'' (BOC) within the meaning 
of section 153(4) of the Act, 3 and an ``incumbent local exchange 
carrier'' (ILEC) within the meaning of section 251(h)(1) of the 
Act.4

     3.   On December 22, 1999, the Commission released an order 
finding that Bell Atlantic had satisfied the conditions set forth 
in section 271, and that it therefore was permitted, through a 
separate affiliate complying with the requirements of section 
272, to provide in-region, interexchange services in the State of 
New York.5  Pursuant to section 272(g),6 which authorizes BOCs 
that have been granted section 271 authority to market jointly 
their own services and the services of their section 272 long 
distance affiliate, Bell Atlantic began marketing the services of 
BACI on January 5, 2000.7  This complaint relates to those joint 
marketing efforts in the State of New York.

     4.   When residential local exchange customers of Bell 
Atlantic call Bell Atlantic to request an additional line, Bell 
Atlantic generally takes the opportunity to market BACI's 
interexchange service.  With certain exceptions not relevant 
here,8 Bell Atlantic does not require that its sales 
representatives, in marketing BACI's services during such calls: 
(a) inform the customer that they have a choice of long distance 
carrier; or (b) offer to read a list of carriers who provide long 
distance service in that customer's area.9  In addition, Bell 
Atlantic allows its sales representatives, on receiving these 
customers' verbal permission, to use information regarding the 
customer's presubscribed interexchange carrier (PIC)  for the 
existing line(s) to market BACI's services for the additional 
and, sometimes, existing line(s).10  Bell Atlantic does not 
provide its customers' PIC information to AT&T or other non-
affiliated carriers in such instances.11 

     5.   AT&T filed its complaint in this action on July 10, 
2000.  In its first claim, AT&T asserts that Bell Atlantic's 
marketing of BACI's services to Bell Atlantic's existing local 
exchange customers who telephone Bell Atlantic to request an 
additional line, without informing those customers that they have 
a choice of long distance carriers and offering to read a list of 
such carriers, violates section 272 of the Act.12  In its second 
claim, AT&T asserts that Bell Atlantic's use of its customers' 
PIC information to market BACI's services during calls from such 
customers violates the anti-discrimination requirements of 
section 272(c),13 because Bell Atlantic does not make that 
information available to other carriers.14



                      III.      DISCUSSION 

     6.   As discussed below, we deny both of AT&T's claims.  We 
deny AT&T's first  claim because Bell Atlantic is not required 
under current law to inform its existing customers telephoning to 
request an additional line that they have a choice of long 
distance carriers, or to offer to read a list of such carriers.  
That obligation applies only to inbound (i.e., incoming) calls 
from customers receiving new service.  We deny AT&T's second 
claim because section 272(c) does not require that, when BOCs use 
information regarding their customer's PIC to joint market their 
long distance affiliate's services to the customer, the BOCs must 
make that information available to other carriers.

A.  Section 272 of the Act Does Not Require Bell Atlantic to 
Inform Its Existing Local Exchange Customers Who Request 
Additional Lines That They Have a Choice of Long Distance 
Carriers or to Offer to Read a List of Such Carriers.

     7.   Under section 272(a) and (b) of the Act, a BOC that has 
obtained authorization pursuant to section 271 to provide 
interexchange services may do so only through a separate 
affiliate.15  Moreover, ``[i]n its dealings with its [section 
272] affiliate ..., a [BOC] ... may not discriminate between that 
company or affiliate and any other entity in the provision ... of 
... services ...''.16  According to section 272(g)(3), however, 
``the joint marketing and sale of services permitted under this 
subsection shall not be considered to violate the 
nondiscrimination provisions of subsection (c).''17  The joint 
marketing ``permitted under this subsection'' occurs when a BOC 
``market[s] or sell[s] interLATA [i.e., interexchange] service 
provided by an affiliate'' after the BOC obtains authorization to 
provide such service under section 271.18  In rejecting AT&T's 
challenge to the FCC's grant of section 271 authority to Bell 
Atlantic in New York, the United States Court of Appeals for the 
District of Columbia Circuit recently held that section 272(g) 
``exempt[s] joint marketing activities from section 272(c)(1)'s 
nondiscrimination requirement.''19       

     8.   AT&T's complaint focuses on the scope of the exemption 
created by section 272(g).  In its first claim, AT&T asserts that 
the only joint marketing permitted under section 272(g), when 
read in conjunction with the anti-discrimination provision of 
section 272(c), is joint marketing that comports with the equal 
access obligations of section 251(g).  AT&T states, ``Section 
272(g)(3) creates a narrow safe harbor for a quite specific 
subset of discriminatory marketing ... .  The only discriminatory 
marketing activities that Congress exempted from the 
nondiscrimination obligations [of section 272(c)] are those that 
are expressly `permitted' by section 272(g) ... . [T]he only 
joint marketing activities that are permitted under section 
272(g) are those in which the BOC complies with the longstanding 
[section 251(g)] equal access requirements of, inter alia 
informing customers that they have a choice of long distance 
carrier...''.20

     9.   For purposes of this order, we will assume, without 
deciding, that the only joint marketing permitted under section 
272 is joint marketing that comports with section 251(g). We 
decline AT&T's invitation to adopt its theory of the obligations 
imposed by sections 272 and 251(g).  Nonetheless, even under 
AT&T's interpretation of the interplay of those two sections, 
Bell Atlantic's conduct is permissible. Nevertheless, AT&T's 
claim fails, because AT&T misunderstands the obligations imposed 
by section 251(g).  That section, which is part of the 
Telecommunications Act of 1996 (1996 Act), binds BOCs to the 
``same equal access ... obligations'' existing ``under any court 
order, consent decree, or regulation, policy or order of  the 
Commission'' on the date immediately preceding the date of 
enactment of the 1996 Act until ``explicitly superseded'' by the 
Commission.21  Thus, in order to succeed on its claim, AT&T must 
cite either, (a) a pre-1996 Act court order, consent decree, or 
Commission order requiring the BOCs to inform existing customers 
making inbound calls to request an additional line of their long 
distance choices, or (b) a Commission order issued after passage 
of the 1996 Act imposing such an obligation.  As discussed below, 
AT&T cites no such precedent, and we are aware of none.  
Accordingly, section 251(g) can impose no such obligation.

     10.  Nevertheless, AT&T argues that section 251(g) obligates 
BOCs to inform customers of their long distance choices with 
respect to all inbound calls in which a service is provided to a 
customer that has not yet designated a long distance carrier, 
including customer calls requesting additional lines.22  AT&T 
cites a 1983 decision of the United States District Court for the 
District of Columbia (Greene, J.) (Decree Court) resolving 
certain disputes arising from the fact that it was becoming 
possible to place an interexchange call through an interexchange 
carrier (IXC) other than AT&T merely by dialing ``1+'' or a four-
digit access code.23  The Decree Court was asked to clarify the 
BOCs' obligations where, as this ``dialing parity'' was achieved, 
customers attempted to place interexchange calls without having 
designated an IXC either by presubscription or use of an access 
code.  The court held that the BOCs were authorized  
automatically to route such calls placed by their existing 
customers to AT&T.  The court required, however, that for ninety 
days before and after dialing parity was achieved, the BOCs 
advise these customers of their long distance choices ``at a 
minimum by way of inserts in the monthly bills.''24  
Significantly, the court imposed no obligation upon the BOCs to 
inform existing customers of their long distance choices after 
expiration of the ninety-day period.  The only such obligation 
imposed by the court was as to ``a customer who receives new 
service,'' which the court defined as ``(1) receiv[ing] service 
from the particular BOC for the first time, or (2) mov[ing] to 
another location within the [BOC's] area.''25 

     11.  Thus, the Decree Court decision does not aid AT&T.  
Contrary to AT&T's assertion, the decision stands for the 
proposition that section 251(g) does not require BOCs to inform 
customers of their long distance choices with respect to all 
inbound calls involving undesignated long distance traffic, and, 
most significantly, does not require BOCs to so inform customers 
who call to request an additional line.  Section 251(g) imports 
obligations existing ``on the date immediately preceding the date 
of enactment of the [1996 Act].''26  The Decree Court imposed 
only a short-lived obligation to inform existing customers of 
their long distance choices, and that obligation had expired long 
before the 1996 Act.  The only obligation to inform callers of 
their long distance choices in 1996 was as to customers who 
receive ``new service.'' Yet the Bell Atlantic customers at issue 
here are not customers receiving ``new service.''  They are 
existing customers, and consequently are neither receiving 
service from Bell Atlantic for the first time nor seeking service 
as the result of a move. 

     12.  AT&T argues that the Commission's 1985 Allocation Order 
``imposed even more stringent requirements regarding a BOC's 
handling of undesignated long distance traffic [than the Decree 
Court's decisions].''27  In the Allocation Order, the Commission 
held that BOCs should not continue to route to AT&T undesignated 
long distance calls made by existing customers, and ordered the 
BOCs, within six months of the effective date of the order, to 
ballot their existing customers as to their choice of long 
distance carrier.  Like the Decree Court, however, the Commission 
imposed no continuing obligation to inform these customers of 
their long distance choices:  Customers who did not respond to 
the ballots were to be allocated to a long distance carrier 
according to a prescribed formula.  With respect to ``new 
customers'' only, BOCs were to respond to calls requesting 
service by ``provid[ing] ... the names and, if requested, the 
telephone numbers of the long distance carriers and should devise 
procedures to ensure that the names of these carriers are 
provided in random order.''28  Thus, the Allocation Order does 
not help AT&T.  Like the Decree Court, the Commission imposed no 
obligation pertaining in 1996 to inform existing customers of 
their long distance choices.

     13.  AT&T asserts that the Decree Court also applied the 
obligation to inform callers of their long distance choices to 
customers making undesignated long distance calls using BOC 
calling cards, BOC payphones, and BOC wireless services.  AT&T 
states, ``these cases confirm that the Decree Court ... ha[s] 
always recognized that the BOCs' obligations apply broadly to all 
situations in which the customer must `designate' a long distance 
carrier ...''.29  AT&T's argument misses the point.  Section 
251(g) imports obligations as they existed the day before 
enactment of the 1996 Act. Therefore, the sole issue here is 
whether, in 1996, BOCs were obligated to inform existing 
customers requesting additional lines of their long distance 
choices; the BOCs' obligations with respect to callers using 
calling cards, payphones or wireless services are simply not 
relevant.  Moreover, AT&T misunderstands the Decree Court's 
decisions.  Undesignated long distance calls simply were not at 
issue with respect to BOC calling cards.30  The Decree Court 
obligated the BOCs to notify payphone premises owners, on a one-
time basis, by January 1989, of their long distance choices.  
This obligation was not, therefore, imported into the 1996 Act by 
section 251(g).  The Decree Court's ruling with respect to 
wireless services is irrelevant, as section 251(g) applies only 
to wireline services.

     14.  AT&T's reliance upon Commission orders released after 
passage of the 1996 Act is equally misplaced.  AT&T argues that, 
in the Non-Accounting Safeguards Order, the Commission concluded 
that BOCs must inform inbound callers requesting additional lines 
of their long distance choices before joint marketing the 
services of their long distance affiliate.31  Yet that order 
limits the BOCs' obligation to inform callers of their long 
distance choices to a ``customer who orders new local exchange 
service,'' and expressly adopts the Decree Court's definition of 
``new service'' as limited to ``(1) receiv[ing] service from the 
particular BOC for the first time, or (2) mov[ing] to another 
location within the [BOC's] area.''32  The BellSouth-South 
Carolina Order, also cited by AT&T, refers to the Non-Accounting 
Safeguards Order with approval, notes that the order limits the 
obligation to inform customers of their long distance choices to 
customers who receive ``new service'' and states that ``a 
customer orders `new service' when the customer either receives 
service from the BOC for the first time, or moves to another 
location within the BOC's in-region territory.''33

     15.  Thus, AT&T's first claim fails.  Bell Atlantic is not 
obligated, when marketing BACI's services, to inform existing 
customers calling to request an additional line that they have a 
choice of long distance carriers and to offer to read a list of 
available carriers.  That obligation applies only to customers 
who either (1) receive service from Bell Atlantic for the first 
time, or (2) move to another location within Bell Atlantic's 
area.  



B.  Section 272 Does Not Prohibit Bell Atlantic From Using CPNI 
to Market BACI's Services Without Providing That CPNI To Other 
Carriers.

     16.  In its second claim, AT&T asserts that Bell Atlantic is 
in violation of section 272(c) of the Act because it uses 
information regarding the identity of its customer's PIC to 
market BACI's services without making that information available 
to AT&T and other interested carriers.  AT&T's second claim also 
must be denied, for Bell Atlantic has not violated section 
272(c).  The information at issue here is customer proprietary 
network information (CPNI) within the meaning of section 222,34 
and, as the Commission held in the CPNI Order, section 272(c)'s 
reference to ``information'' does not include CPNI.35

     17.  AT&T argues that we are precluded from holding that 
section 272(c) ``information'' does not include CPNI based on the 
CPNI Order because that order was vacated by the Tenth Circuit in 
U.S. West, Inc. v. FCC.36  We disagree.  When read in context, 
the court's vacatur order related only to the discrete portions 
of the order and rules that were before the court in light of the 
parties' petitions for review and addressed by the court.  The 
parties' petitions for review did not include, and the Tenth 
Circuit therefore neither had before it, nor addressed in its 
decision, the CPNI Order's discussion of  section 272(c). 37  Had 
the court intended to take the unusual step of vacating portions 
of the order and rules not before it, we believe it would have 
said so explicitly.  Accordingly, we find that the court did not 
vacate the portion of the CPNI Order concluding that CPNI does 
not constitute ``information'' under section 271(c).

     18.  AT&T argues that, even if the CPNI Order was not 
vacated in its entirety, the Commission's interpretation of 
section 272(c) set forth in the CPNI Order is no longer valid.  
AT&T notes that the Tenth Circuit rejected the Commission's 
assertion that its construction of  ``approval'' as used in 
section 222 did not violate the First Amendment because one of 
the ``substantial state interests'' recognized by Congress in 
enacting section 222 is the promotion of competition in the 
telecommunications industry.38  AT&T argues that, in so holding, 
the Tenth Circuit effectively destroyed ``the entire rationale'' 
for the CPNI Order's construction of section 272(c).39  Yet the 
court did not hold that section 222 is wholly devoid of 
competitive concerns; it held only that those concerns were not a 
``significant consideration'' for First Amendment analysis.40  
Moreover, even assuming that the Tenth Circuit's analysis applies 
to the issue of exchange of CPNI between competitors, the 
Commission's construction of section 222 as expressing pro-
competitive concerns was only one of several reasons why the 
Commission construed section 272(c)'s reference to 
``information'' not to include CPNI.  The Commission also so 
concluded in order to ``further the principles of customer 
convenience and control,'' and protect ``customer's privacy 
interests.''41  Moreover, the Commission was concerned that a 
reading of section 272 such as that advocated by AT&T here would 
lead BOCs to ``simply choose not to disclose their local service 
CPNI,'' which ``would not serve the various customer interests 
envisioned under section 222.''42  These reasons are independent 
of the Commission's view that one of Congress's purposes in 
enacting section 222 was to promote competition, and AT&T has not 
questioned any of these rationales.

     19.  Accordingly, because we conclude that section 272(c)'s 
reference to ``information'' does not include CPNI, we deny 
AT&T's second claim. Bell Atlantic is not obligated by section 
272(c) to provide its customers' CPNI to AT&T or any other 
carrier.

                                

                   IV.         ORDERING CLAUSE

     20.  Accordingly, IT IS ORDERED, pursuant to sections 4(i), 
4(j), 208, 271, and 272 of the Communications Act of 1934, as 
amended, 47 U.S.C. 154(i), 154(j), 208, 271 and 272, that the 
formal complaint filed by AT&T Corp. against New York Telephone 
Company, d/b/a Bell Atlantic - New York, IS DENIED WITH PREJUDICE 
and this proceeding IS TERMINATED.



          
                                         FEDERAL   COMMUNICATIONS 
COMMISSION



                                                  Magalie   Roman 
Salas
                                                Secretary 
_________________________

1 47 U.S.C.  208, 271(d)(6).

2 47 U.S.C.  272.

3 47 U.S.C.  153(4).

4 47 U.S.C.  251(h)(1). 

5 See In the Matter of Application by Bell Atlantic New York for 
Authorization under  Section 271  of the  Communications Act  to 
Provide In-Region, InterLATA Service in  the State of New  York,  
15 FCC Rcd 3953  (1999), aff'd sub nom.  AT&T Corp. v. FCC,  220 
F.3d 607 (D.C. Cir. 2000).

6 The  Act at  section  272(g)(2) provides,  ``A [BOC]  may  not 
market or sell interLATA [i.e., interexchange] service  provided 
by an affiliate required by this  section within any of its  in-
region States  until  such  company  is  authorized  to  provide 
interLATA services in such State under section 271(d).''

7 Joint Statement at  3.

8 Bell  Atlantic  states  that, although  it  has  ``no  blanket 
requirement'' that  its  sales representatives  inform  existing 
customers requesting an additional  line of their long  distance 
choices and  offer  to  read  a  list  of  carriers,  its  sales 
representatives are instructed  to provide  this information  to 
certain customers ``for reasons of administrative convenience.''  
Bell Atlantic explains, ``The  different treatment results  from 
internal  classifications  that  are  grounded  in  whether  the 
customer has  the additional  line billed  to the  same  billing 
account as the primary  line ...''. Answer  of  Bell Atlantic  - 
New York to AT&T Corp.'s Formal Complaint, File No. EB-00-MD-011 
(filed July 24, 2000) (Answer) Ex. E  (Atticks Dec'n) at  7.

9 Answer Ex. E at  5-6.

10 Answer Ex. E. at  7.

11 Id. at   9 n.2  (explaining that Bell  Atlantic may  provide 
other carriers  with customer  PIC  information to  comply  with 
other statutory requirements).  

12 Formal Complaint of AT&T Corp., File No. EB-00-MD-011  (filed 
July 10, 2000) (Complaint) at  30-32, 34, 36.

13 The Act at section  272(c) provides, in pertinent part,  ``In 
its dealings with its [section 272] affiliate,  ... a [BOC]  ... 
may not discriminate between that  company or affiliate and  any 
other entity in  the provision or  procurement of ...  services, 
facilities, and information ... ''.

14 Complaint at  33-36.

15 47 U.S.C.  272(a), (b).

16 47 U.S.C.  272(c).

17 47 U.S.C.  272(g)(3).

18 47 U.S.C.  272(g)(2).

19 AT&T Corp. v. FCC, 220 F.3d 607, 632 (D.C. Cir. 2000).

20 Opposition of AT&T Corp. to Bell Atlantic's Motion to Dismiss 
Complaint, File No. E-00-MD-011 (filed July 31, 2000) at 7.

21 Section 251(g)  provides, in pertinent  part, ``On and  after 
the date of  enactment of  the [1996 Act],  each local  exchange 
carrier, to the extent that it provides wireline services, shall 
provide  exchange  access,  information  access,  and   exchange 
services for  such  access  to  interexchange  carriers  ...  in 
accordance with  the same  equal access  and  non-discriminatory 
interconnection restrictions and obligations  ... that apply  to 
such carrier  on  the date  immediately  preceding the  date  of 
enactment of  the  [1996 Act]  under  any court  order,  consent 
decree, or regulation, order or policy of the Commission,  until 
such restrictions and obligations  are explicitly superseded  by 
regulations prescribed  by the  Commission  after such  date  of 
enactment.''  47 U.S.C.  251(g).

22 Brief of AT&T  Corp. on Bell  Atlantic's Liability for  Joint 
Marketing Violations,  File  No. EB-00-MD-011  (filed  Aug.  14, 
2000)(AT&T Br.) at 8, 15.  

23AT&T Br. at  16 (citing United  States v. AT&T  Corp., 578  F. 
Supp. 668 (D.D.C. 1983)).  Prior  to the achievement of  dialing 
parity, customers could place  interexchange calls through  IXCs 
other than  AT&T  only by  dialing  a twelve  or  thirteen-digit 
access code. See United  States v. AT&T Corp.,  578 F. Supp.  at 
670 (D.D.C. 1983)

24 United States v. AT&T Corp., 578 F. Supp. at 676.

25  Id.  at  677.   The  court  ruled,  ``no  [BOC]  shall   ...  
automatically ... assign  to  AT&T the calls  of a customer  who 
receives new service but fails to  designate an [IXC] ... .  The 
[BOC] may instead ... assist [the caller] in locating [an  IXC], 
provided  that  no  favoritism   is  shown  to  any   particular 
carrier.''  Id.

26 47 U.S.C.  251(g).

27  AT&T  Br.  at  16   (citing  Investigation  of  Access   and 
Divestiture Related Tariffs, Memorandum  Opinion and Order,  101 
FCC2d 911at  33-35 (1985) (Allocation Order)).

28 In  the Matter  of Investigation  of Access  and  Divestiture 
Related Tariffs, Allocation Plan Wavers and Tariffs,  Memorandum 
Opinion  and  Order,  101  FCC2d  935,  949    40  (FCC   1985) 
(construing the Allocation Order).

29 AT&T Reply Br. at 16 (citing United States v. AT&T Corp., 698 
F. Supp. 348  (D.D.C. 1988) (calling  cards and payphones),  and 
United States  v.  AT&T Corp.,  890  F. Supp.  1  (D.D.C.  1995) 
(wireless calls)). 

30 Because  the  Decree  Court  found  that  the  BOCs  had,  in 
violation of their equal access obligations, routed all  calling 
card calls not preceded by ``0 +'' to AT&T, and implied in their 
advertisements that the  holders' long distance  calls would  be 
carried by the BOC who issued the card, it ordered the BOC's  to 
notify cardholders, on a one-time  basis, by January 1989,  that 
long distance  calls  placed using  the  calling card  might  be 
carried by a carrier other than the holder's PIC, and that  they 
should contact  long  distance  carriers  regarding  alternative 
methods of charging long distance  calls.  See United States  v. 
AT&T Corp., 698 F. Supp. at 356 - 7.

31 AT&T Br. at 14 (citing In the Matter of Implementation of the 
Non-Accounting  Safeguards  of  Sections  271  and  272  of  the 
Communications Act of 1934, as amended, First Report and  Order, 
11 FCC  Rcd  21905,  22207    292  (FCC  1996)  (Non-Accounting 
Safeguards Order)).

32Non-Accounting Safeguards Order at  292, n. 761(citing United 
States v. AT&T Corp., 578 F.Supp. at 676-7).

33In the  Matter  of  Application  of  BellSouth  Corp.  et  al. 
Pursuant to Section 271 of  the Communications Act of  1934,  as 
amended, To  Provide  In-Region,  InterLATA  Services  in  South 
Carolina, Memorandum Opinion and Order, 13 FCC Rcd 539 at n. 675  
(1997) , aff'd  sub nom. BellSouth  Corp. v. FCC,  162 F.3d  678 
(D.C. Cir. 1998) (BellSouth-South  Carolina Order).  Accord,  In 
the Matter  of the  Application of  BellSouth Corp.  et al.  For 
Provision  of  In-Region,   InterLATA  Services  in   Louisiana, 
Memorandum Opinion and  Order, 13  FCC Rcd 20599   357  (1998).  
AT&T argues that in  AT&T Corp. v. Ameritech  Corp., 13 FCC  Rcd 
21438 (FCC 1998), the Commission ``observ[ed] that proposed  BOC 
marketing scripts that  `endors[e] and  promot[e]' and  actively 
`encourage  use  of'  a  particular  carrier  `raise[]   serious 
concerns' about  violations  of  the  Act's  equal  access   and 
nondiscrimination requirements.''  AT&T Br.  at 8 (quoting  AT&T 
Corp. v. Ameritech  Corp., 13  FCC Rcd  at   58-63).  But  the 
``concerns'' expressed by the Commission in the Ameritech  Corp. 
order were as  to a  BOC's marketing of  a non-affiliated  IXC's 
long distance services  where the BOC  had not received  section 
272(d)(3) approval.

34 See  Implementation of  the Telecommunications  Act of  1996:  
Telecommunications  Carriers'   Use  of   Customer   Proprietary 
Information   and   Other   Customer   Information,   Order   on 
Reconsideration and Petitions for Forbearance, 14 FCC Rcd 14,409 
at    148  (1999).   The   parties  stipulated  that  the   PIC 
information at issue was CPNI.  See Joint Statement for  Initial 
Status Conference, File No. E-00-MD-011 (filed July 31, 2000) at 
3  6.  See  also id. at  5   7.  The question  of the use  for 
marketing purposes of carrier proprietary information within the 
meaning of section 222(b) has not been pleaded and therefore  is 
not addressed here.

35 See  Implementation of  the Telecommunications  Act of  1996:  
Telecommunications  Carriers'   Use  of   Customer   Proprietary 
Information and Other  Customer Information,  Second Report  and 
Order, 13 FCC Rcd 8061 (1998) (CPNI Order) at 81728174 - 8179  
158 - 169, vacated  sub nom.,  U.S. West, Inc. v. FCC, 182  F.3d 
1224 (10th Cir. 1999), cert. denied, 120 S. Ct. 2215 (2000).

36 U.S. West, Inc. v. FCC, 182 F.3d 1224 (10th Cir. 1999), cert. 
denied, 120 S. Ct. 2215 (2000) (U.S. West). 

37 The court described petitioner's challenge to the CPNI Order 
as ``First and Fifth Amendment challenges to the approval 
procedure [i.e., ``opt-in''] adopted by the FCC.'' U.S. West, 182 
F.3d at 1231.  The court limited its ruling accordingly.  The 
court stated, ``[T]he FCC ... insufficiently justified its choice 
to adopt an opt-in regime.  Consequently, its CPNI regulations 
must fall under the First Amendment.''  Id. at 1240.  See also, 
id., at 1240 n. 15 (``We merely find fault in the FCC's  
inadequate consideration of the approval mechanism alternatives 
in light of the First Amendment'').  

38 AT&T Br. at 26 (citing U.S. West, 182 F.3d at 1236). 

39 AT&T Br. at 26.

40U.S. West, 182 F.3d at 1236.

41CPNI Order at  160.

42 Id. at  161.