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Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554

In the matter of )
Application by Ameritech Michigan )
For Authorization Under Section 271 of the )
Communications Act To Provide In-Region )
InterLATA Service in the State of Michigan )

CC Docket
No. 97-137


MOTION OF AT&T CORP. TO STRIKE PORTIONS OF
AMERITECH'S REPLY COMMENTS AND REPLY AFFIDAVITS
IN SUPPORT OF ITS SECTION 271 APPLICATION FOR MICHIGAN

AT&T Corp. ("AT&T") respectfully submits this motion to strike those portions of Ameritech's reply comments and reply affidavits (filed July 7, 1997) that contain or discuss data, documents, or events that (1) occurred prior to May 21, 1997 (the date of Ameritech's initial application), but were not presented in Ameritech's initial application, or (2) post-date May 21. See Exhibit A hereto (identifying relevant portions).

INTRODUCTION AND SUMMARY OF ARGUMENT


This Commission has previously held, both in establishing and enforcing its procedural requirements for Section 271 applications, that "'a section 271 application, as originally filed, will include all of the factual evidence on which the applicant would have the Commission rely in making findings thereon.'"(1) On February 7, 1997, this Commission enforced this rule against Ameritech, stating that if Ameritech were to supplement its then-pending application with an approved interconnection agreement, the Commission would "strike any such amendment or supplement." Feb. 7 Order at 14 ¶ 21. The Commission explained, inter alia, that such a ruling was "necessary to ensure that all commenting parties have an opportunity to evaluate the complete application, and thereby facilitate development of a complete record." Id. (emphasis added).

In its reply submission, Ameritech has blatantly violated this core procedural rule. Forty-seven days after its initial application, Ameritech has now submitted over 2,200 pages of supplementary material. Rather than defend the sufficiency of the evidence presented in Ameritech's initial application, Ameritech has chosen to present reams of new data and documents and to discuss new events that all post-date its May 21, 1997 application.

Ameritech's extraordinary supplementation of the record clearly violates the Commission's procedural rules. Indeed, to permit it would be to invite a chaotic round of supplemental briefing that would seriously impair the Commission's ability to meet its statutory obligations. For just as Ameritech's initial submission of facts was shown by virtually all non-RBOC commenting parties to be misleading and entirely inadequate to satisfy the statutory requirements, its new submission is equally unreliable and deficient. To take just one example, while Ameritech's OSS reply witnesses repeatedly assert that Ameritech successfully processed 23,000 change orders for complimentary speed-dialing that AT&T submitted in late June, the truth is that Ameritech horrendously botched these transactions by sending each of these AT&T customers a so-called "fulfillment package" thanking them for being Ameritech customers and indicating (falsely) that Ameritech might bill them next month for this new service. See infra, page 7, ¶ 9 and Exhibit B (a copy of one such package sent by Ameritech).

Given the opportunity, AT&T could readily demonstrate that Ameritech's new June-based record is every bit as misleading and inadequate as the one it submitted in May. And if the Commission had an indefinite time period for decision, it could simply accept Ameritech's supplements as they came in, set periods for commenters to reply, and wait for the process to run its course before issuing a decision. But that result is foreclosed by the 90-day decision period imposed by the statute. The statute and the Commission's prior orders give Ameritech a clear and fair choice: If Ameritech truly believes that the new evidence is material to its ability to demonstrate compliance with Section 271, then it should refile a new application with that information and give interested parties, the state commission, and the Attorney General the opportunity to evaluate it. On the other hand, if it still believes (as it told the Commission on May 21) that its initial application was sufficient to prove compliance, then it should go forward on the basis of the record as of that date.

PROCEDURAL BACKGROUND

A. Ameritech's Third Initial Application For Michigan and the Responses Thereto

1. Ameritech filed its currently pending Michigan application on May 21, 1997. This application followed two prior applications, the first of which Ameritech amended to add new material information (an approved interconnection agreement) and acknowledged the need to restart the 90-day clock, and the second of which it withdrew after the Commission ruled that Ameritech would not be allowed to supplement the record at the reply phase or any other time with a newly approved interconnection agreement.(2)

2. In its initial brief supporting the instant application, Ameritech stated that "[a]s demonstrated in this Brief and its attachments, Ameritech has fully satisfied . . . each of the conditions set forth in Section 271(d)(3) of the 1996 Act." Ameritech Br. at 2. In an accompanying press release, Ameritech noted that its attachments included "over 10,000 pages" of material, "with another 5,000 pages on a web site." Ameritech May 21, 1997 Press Release at 1.

3. On June 10, 1997, numerous parties, including the Michigan Public Service Commission (MPSC) and AT&T, filed comments and affidavits in response to the May 21 application. On June 25, the Department of Justice filed its evaluation. As AT&T described in its subsequent reply comments (filed July 7, 1997), the overwhelming consensus of the non-RBOC commenters was that Ameritech's application should be rejected. In particular, many of the commenters, including the MPSC, the DOJ, and AT&T examined the factual record that Ameritech submitted in substantial detail, and demonstrated that the record showed that Ameritech had clearly failed to demonstrate, inter alia, that it was providing nondiscriminatory access either to its operations support systems (OSS) or to individual or combinations of unbundled network elements, such as the UNE-platform. See AT&T Reply at 3-12.

B. Ameritech's Improper Reply Comments

4. On July 7, 1997, Ameritech filed over 2,200 pages of reply comments and supporting affidavits. Much of this material consisted of new evidence and argument, some of which was known to Ameritech prior to May 21, 1997, and should have been submitted with its initial application, but most of which concerned events and data that post-dated (1) May 21, 1997 (the date of application), (2) June 10, 1997 (the date for responses from the MPSC and other interested parties), and even (3) June 25, 1997 (the date for DOJ's Evaluation).

5. For example, with respect to the UNE-Platform, Ameritech not only provided new documents and data from June, 1997, regarding AT&T's and Ameritech's efforts to determine whether Ameritech can develop the technical capability to provide AT&T with the UNE-platform, but also supplied extensive commentary on and interpretation of that material. See Ameritech Reply Br. 21-23; Kocher Reply Aff. ¶¶ 70-84, 90-112.(3)

6. With respect to OSS, Ameritech filed four separate OSS affidavits with entirely new data from June, 1997, new analyses and performance measurements for that data, and new promises of future actions purportedly to be taken between July and December, 1997. Ameritech and its OSS witnesses (including two witnesses new to this proceeding) even criticized other commenters for relying on data that was "outdated" compared to Ameritech's June data -- even though those commenters could not possibly have discussed such data in their June 10 submissions. See, e.g., Rogers Aff. ¶ 9; Ameritech Reply Br. 10.

7. The Gates/Thomas Affidavit: Rather than have Mr. Meixner, of Andersen Consulting, provide a reply affidavit to defend his heavily criticized opening comments,(4) Ameritech engaged two other Andersen consultants, Messrs. Gates and Thomas, to present the results of their newly commissioned work "[d]uring May, June and July 1997." Gates/Thomas Aff. ¶ 16. This work focused not on an evaluation of the record that Ameritech submitted on May 21, 1997, and the comments thereon, but instead presented new data from May, June, and July. E.g. id. ¶ 25, 27 29, 31, 45, 46, 49, 55, 56, 63, 67, 69, 75, 80-81, & Schedules 1-12. Indeed, another of the Ameritech OSS affidavits candidly admits that portions of the Gates/Thomas work is "supplemental evidence" regarding pre-ordering. Mayer/Mickens/Rogers Reply Aff. ¶ 8.

8. The Rogers and the Mayer/Mickens/Rogers Reply Affidavits: Although these witnesses did file initial affidavits, their replies contain numerous references to data and promises of future compliance that post-date May 21, 1997. See, e.g., Rogers Reply Aff. ¶¶ 9, 25, 29, 34, 36, 39-42, 58, 67, 78, 79, 81, 90, 96; Mayer/Mickens/Rogers Reply Aff. ¶¶ 8, 9 n.2, 16, 18, 20, 23, 24, 28, 49, 51, 61, 64. For example, Messrs. Mayer, Mickens, and Rogers jointly assert that June data show that Ameritech has "successfully resolved" its chronic inability to deliver timely AEBS bills to CLECs by installing a "new billing system." Id. ¶ 64.

9. These witnesses' presentation of the relevant OSS "facts" of June, 1997, is incomplete. For example, each witness describes as successful Ameritech's processing of approximately 23,000 virtually identical change orders that AT&T submitted in late June. See, e.g., Gates/Thomas Aff. ¶ 25; Rogers Reply Aff. ¶¶ 9, 39, 96; Mayer/Mickens/Rogers Reply Aff. ¶ 61. These change orders were generated in connection with an AT&T promotion to say "thank you" to its new local customers by providing them with free speed-dialing for one month. Ameritech fails to disclose anywhere in its reply materials (or in any subsequent corrective filing with this Commission to date) that when Ameritech automatically processed these change orders it also automatically and erroneously sent to each of these AT&T customers a letter from Ameritech General Manager Stephanie Dunbar saying "Thank you for choosing phone service from Ameritech!", a brochure explaining Ameritech's speed-dialing service, and a notice that monthly charges might be applied to the customer's next bill for the new speed dialing feature. See Exhibit B (a copy of one such package sent by Ameritech).

10. The Mickens Reply Affidavit: In the face of extensive criticism by the MPSC, the DOJ, and other parties of his proposed performance measures and limited data disclosure, Mr. Mickens chose not to defend his initial submission but to revise it. For example, Mr. Mickens has replaced the 12 performance reports filed with its initial application (Mickens Aff. Att. 17-27 & 33) with a new set of 27 performance reports, including reports for 11 CLECs not included in its initial submission, new "updated" data for May 1997 and occasionally for June, and even some new measures. See Mickens Reply Aff. ¶¶ 1, 85 & Att. 8-35; id. ¶¶ 26, 42 & Att. 35; cf. Pfau Aff. ¶ 67. Where the updated May data shows that Ameritech's performance has deteriorated substantially, Mr. Mickens either ignores the point or represents that Ameritech will fix the problem in the future. E.g. Mickens Reply Aff. ¶¶ 27, 28, 39, 43, 45, Att. 13, Sec. 1, pp. 1-2; Att. 32 Sec. 1, p. 1; Ameritech Reply Br. at 15, 17 n.22.

11. The Ameritech Motion To Strike: Finally, also on July 7, 1997, Ameritech filed a motion to strike the comments of Brooks Fiber on the grounds that Brooks' comments made numerous factual allegations that were unsupported by "affidavits or sworn statements." Ameritech Motion to Strike at 1. In support of this motion, Ameritech cited "the strict 90-day statutory time period for reviewing Section 271 applications" and the difficulty the Commission would face of "ascertain[ing] the reliability" of unverified allegations and "render[ing] a decision within that 90-day period." Id. at 4.(5) Nowhere in this motion did Ameritech attempt to explain or reconcile the "difficulty" it had alleged Brooks caused by submitting unsworn allegations with its own, far more extensive effort to introduce new information that, while sworn, would be largely immune from review, evaluation, and challenge by any other party.

ARGUMENT

The Commission's rule that "all of the factual evidence on which the applicant would have the Commission rely" must be included in the applicant's original filing (Public Notice at 2) is the only workable rule given the unique scheme of accelerated and consultative agency review that Congress crafted for Section 271. Section 271 requires that the Commission issue a ruling "[n]ot later than 90 days after receiving an application." § 271(d)(3). Section 271 also requires that the Commission "consult with the State commission" regarding checklist compliance, "consult with the Attorney General" and give "substantial weight to the Attorney General's evaluation." § 271(d)(2). Finally, Section 271 requires that the Commission shall "state the basis for its approval or denial of the application," which is to be premised on its "find[ing]s" on an extensive series of factual and legal questions. § 271(d)(3); see also H.R. Rep. No. 104-458, at 148 (1996) (referring to "the explicit factual determination by the Commission under new section 271(d)(2)(B) that the requesting BOC has fully implemented the . . . 'checklist'") (emphasis added).

The Commission's rule against material supplementation of the record by the BOC follows directly from this statutory scheme:

Because of the strict 90-day statutory review period, the section 271 review process is keenly dependent on . . . an applicant's submission of a complete application at the commencement of a section 271 proceeding. . . . "[C]ompleteness is essential in order to permit interested parties, state commissions, and the Department of Justice a realistic opportunity to comment, and for the FCC to evaluate, an enormous and complex record in a short period of time."

Feb. 7 Order at 12 ¶ 19 (citations omitted). The Commission further explained that, if a BOC were permitted to supplement the record with material new information (such as a new interconnection agreement), that supplement would:

"be unfair to interested third parties seeking to comment on a fixed record triggered by the date that a section 271 application is filed";

"impair the ability of the state commission and of the Attorney General to meet their respective statutory consultative obligations"; and

"undermine this Commission's ability to render a decision within the 90-day statutory timeframe."

Feb. 7 Order ¶ 19.

These concerns are if anything more troubling in the face of the extensive new factual presentation of checklist implementation that Ameritech seeks to rely on here. Ameritech's reply submission reflects a deliberate and calculated decision not to defend the proposition, advanced in its opening brief, that the record submitted with its application was sufficient to demonstrate compliance. Indeed, by seeking so dramatically to shift the focus to this new factual evidence, Ameritech has tacitly concurred with the many commenters that concluded that Ameritech's record as of May 21, 1997 fails to demonstrate compliance with Section 271. Indeed, each of the reasons quoted above against permitting BOCs to supplement the record is also a compelling reason to strike Ameritech's new factual evidence here.

First, allowing BOCs to supplement the record with new data and evidence on which interested third parties have no opportunity to comment(6) will inevitably distort and confuse the record. Much of Ameritech's new data and discussion of June events concerns its experience with AT&T, and AT&T has a very different view of what has occurred in June than what Ameritech has set forth. The Commission will not have a "complete record" of the post-application period if it hears only the BOC's selected facts and interpretations. Feb. 7 Order ¶ 21.

Absent comments from interested parties, for example, the Commission would never know that Ameritech in fact erroneously sent a fulfillment package to each of AT&T's change-order customers in clear violation of Section 251.(7) See Exhibit B. Similarly, absent responsive comments, the Commission will have only Ameritech's arguments as to why the joint efforts of AT&T and Ameritech through early July demonstrate the availability of the platform, and not AT&T's showing of why the June experience in fact confirms that just the opposite is true.

Second, permitting RBOCs to submit new factual evidence at the reply stage would also undercut the statutory requirements that the Commission consult with the state commission and give substantial deference to the evaluation of the Attorney General. Under the Commission's procedural schedule, neither the state commission nor the Department of Justice has an opportunity to comment upon factual evidence developed by the BOC after the date of its initial application. See, e.g., DOJ Evaluation at Appendix A at A-13 n. 19 (noting that it had received some data jointly verified by Ameritech and AT&T after Ameritech's application was submitted but that it lacked sufficient time to analyze it for purposes of including it in its evaluation). Permitting RBOCs to submit new factual material at the reply stage will thus "impair the ability of the state commission and of the Attorney General to meet their respective statutory consultative obligations." Feb. 7 Order ¶ 19.

Third, these problems cannot be reasonably solved without undermining the Commission's ability to meet its statutory obligations. Notably, these problems cannot be solved effectively by inviting all parties to set forth whatever new facts they think are relevant up to the date replies are due. Commenters in this situation could only guess at what the BOC and other commenters would say. The purpose of a sequential series of filings is to permit parties to join issue over a single set of facts and arguments. Simultaneous filings of new information, data, and arguments will yield a cacophony of commenters talking past each other, with no effective way for the state commission, the Attorney General, or this Commission to sort out the confusion in the limited time remaining for decision. Id. ¶ 19 & n. 65.

These problems also cannot be effectively solved solely by introducing another round of comments -- such as by expanded ex parte presentations -- on the new material that the BOC submits in reply. While expanded ex partes following the BOC reply would serve a useful corrective role even when the factual record is fixed as of the date of application,(8) reliance on them to "update the record" would simply exacerbate the problem, since each attempt by commenting parties to correct BOC misstatements or oversights would unquestionably prompt the BOCs to file new ex partes themselves, in which -- by hypothesis -- they would be free to refer to yet other new events and data to show why, for example, a particular June debacle should be ignored because of more recent July events. At some point, a line must be drawn, and the only sensible place -- given the 90-day deadline for decision -- is where the Commission originally drew it, i.e., at the date of application.

It is clear, moreover, that enforcing the Commission's rule will pose no hardship or unfairness to the RBOCs. To begin with, there can be no doubt that Ameritech, in particular, has been on notice of the existence of the Commission rules, the concerns that underlie them, and of the likelihood of its enforcement. See pp. 1-2 & n. 1, supra.

Furthermore, the tight 20-day timeframe for comments on a BOC's application means that, as a practical matter, those comments will include little or no factual evidence regarding the 20-day period between the filing of the BOCs' application and the filing of comments. And to the limited extent that any comments contain such information, a BOC could reply to it with a focused, fact-specific response that also did not go beyond the time period for comments (i.e., in this case, June 10). There is no need for a BOC to go beyond that because, absent exceptional circumstance, reply comments for all sides should exclusively address the record evidence as of the date of the initial BOC application and as set forth by other commenters.

At the same time, there are exceptional circumstances in which the Commission could consider subsequent events that are first brought to its attention by a commenter in denying an application that is filed under § 271. If at any time during the 90-day period, a commenter becomes aware of a fact that arises after the date of responsive comments, that is materially different than what has already been briefed, and that would indicate that the applicant BOC "has ceased to meet any of the conditions required for such [Section 271] approval," the commenter should be permitted to apprise the Commission of that exceptional fact in a filing. § 271(d)(6). That is because if such a fact existed, the Commission would be required to suspend or revoke a previously granted § 271 application. See id. And it would make no sense for the Commission to grant an application on the basis of the data that existed at the time the application was filed and then immediately have to suspend or revoke the grant based on new information arising while the application was pending. Id. Thus, commenters must have the ability to bring such exceptional intervening events to the Commission's attention while an application is pending, and if commenters do so, the scope and timing of any BOC response to such a filing could be dealt with on a case-by-case basis.

But while the Act's terms would thus permit an application to be denied based on such exceptional facts that developed during the pendency of the application and that were first disclosed by third parties, the integrity of the process requires a rule that the Commission be permitted to grant an application only on the basis of information and data that was in existence on the date that the application was filed and that is contained in the BOCs' application. In particular, the rule that BOC applications must be factually complete when filed is fair and required by the statute's terms and purposes in light of compensating protections that the statute affords to the RBOCs. Under Section 271, RBOCs control the timing of their applications -- they choose to file only when they conclude that, as of the date of their application, they can demonstrate compliance with all of the Act's requirements and that no additional data or experience (or studies based on future data) are required to demonstrate the BOC's entitlement to relief. In this regard, Ameritech expressly told this Commission on May 21 that "[a]s demonstrated in this Brief and its attachments, Ameritech has fully satisfied . . . each of the conditions set forth in Section 271(d)(3) of the 1996 Act." Ameritech Br. at 2. If Ameritech thought it would need the additional data and evidence from May, June, and July that it now seeks to have this Commission rely upon, it could have and should have waited to file its application. And if it has belatedly reached that judgment, then it is free simply to withdraw its application and refile when it has a record that it truly believes demonstrates compliance with Section 271.

Alternatively, if Ameritech chooses to go forward with this application shorn of the new factual evidence, and the Commission ultimately disagrees with Ameritech's assertion that Ameritech "fully satisfied" the requirements of Section 271 as of May 21, the statute provides Ameritech ample protection against undue delay in moving forward with new evidence and a new application. Ameritech is not at the mercy of either an indefinite agency proceeding or a dismissal with prejudice. Rather, the statute provides for a decision within 90 days and unlimited opportunities to restart the process with new evidence thereafter. The quid pro quo for such procedural advantages -- and the only way the accelerated and consultative review process can conceivably work properly -- is for the BOC to stand by the record it initially submits.

Finally, the Commission has ample authority to enforce its procedural rules. Precluding parties from raising new issues and arguments on reply is a traditional procedural rule(9) that, for the reasons this Commission has already stated, has particular force in the context of the Commission's obligations under Section 271. The Communications Act gives the Commission authority to "conduct its proceedings in such manner as will best conduce to the proper dispatch of business and to the ends of justice." 47 U.S.C. § 154(j). Notably, Section 4(j) leaves "largely to the [Commission's] judgment" the power to "resolve subordinate questions of procedure" and grants the Commission "broad discretion to prescribe rules for specific investigations and to make ad hoc procedural rulings in specific instances."(10) Where, as here, not only the Commission's convenience but the very integrity of the Section 271 review process is at stake, there is no question that the Commission has the authority to enforce its requirement that BOCs include "all of the factual evidence on which the applicant would have the Commission rely" in its application "as originally filed." Feb. 7 Order 14 ¶ 22, quoting Public Notice at 2.

CONCLUSION

For the reasons stated above, the Commission should strike Ameritech's submission of new factual information (as identified in Exhibit A hereto) and any reliance thereon in Ameritech's reply comments.

Respectfully submitted,

Mark C. Rosenblum
Leonard J. Cali
Roy E. Hoffinger
James W. Grudus

AT&T Corp.
295 North Maple Avenue
Basking Ridge, New Jersey 07920
(908) 221-3539

David W. Carpenter
Mark E. Haddad

Sidley & Austin
One First National Plaza
Chicago, Illinois 60603
(312) 853-7000

Counsel for AT&T Corp.
July 15, 1997

TABLE OF CONTENTS


INTRODUCTION AND SUMMARY OF ARGUMENT 1

PROCEDURAL BACKGROUND 4

A. Ameritech's Third Initial Application For Michigan and the

Responses Thereto 4

B. Ameritech's Improper Reply Comments 5

ARGUMENT 9

CONCLUSION 16

Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554

In the matter of )
Application by Ameritech Michigan )
For Authorization Under Section 271 of the )
Communications Act To Provide In-Region )
InterLATA Service in the State of Michigan )

CC Docket
No. 97-137


MOTION OF AT&T CORP. TO STRIKE PORTIONS OF
AMERITECH'S REPLY COMMENTS AND REPLY AFFIDAVITS
IN SUPPORT OF ITS SECTION 271 APPLICATION FOR MICHIGAN




Mark C. Rosenblum
Leonard J. Cali
Roy E. Hoffinger
James W. Grudus

AT&T Corp.
295 North Maple Avenue
Basking Ridge, New Jersey 07920
(908) 221-3539

David W. Carpenter
Mark E. Haddad

Sidley & Austin
One First National Plaza
Chicago, Illinois 60603
(312) 853-7000

Counsel for AT&T Corp.
July 15, 1997


1. Order, In the Matter of Application by Ameritech Michigan Pursuant to Section 271 of the Communications Act of 1934, as amended, to Provide In-Region, InterLATA Services in Michigan, CC Docket No. 97-1, FCC 97-40 at 14 (¶ 22) (rel. Feb. 7, 1997) ("Feb. 7 Order"), quoting Public Notice, Procedures For Bell Operating Company Applications Under New Section 271 Of The Communications Act, FCC 96-469 at 2 (rel. Dec. 6, 1996) ("Public Notice") (emphasis supplied by Commission in Feb. 7 Order).

2. See Feb. 7 Order (giving procedural history); see also Order, In the Matter of Application by Ameritech Michigan Pursuant to Section 271 of the Communications Act of 1934, as amended, to provide In-Region, InterLATA Services in Michigan, CC Docket No. 97-1, DA 97-331 (rel. Feb. 12, 1997) (dismissing second application).

3. Ameritech also seeks to rely upon June data concerning local competition. See, e.g., Ameritech Reply Br. 26 n.32; Harris/Teece Reply Aff. pp. 2-8, 15.

4. See, e.g., MPSC Comments at 24, 31 ¶ a; DOJ Evaluation at 22-23 and Appendix A at A-6 to A-7; Connolly Aff. ¶¶ 97-100, 186-93, Attach. 4.

5. See also Comments of Ameritech Corporation, In the Matter of Application By SBC Communications Inc. for Provision of In-region InterLATA Services in Oklahoma, CC Docket No. 97-121 at 1-2 (Apr. 28, 1997) (opposing ALTS Motion to Dismiss because of the "strict time limits for the 271 application approval process," the need to "consult" with DOJ and the state commission, the "strain" on the "resources of the BOCs, other carriers, the DOJ, and the Commission," and the need to afford "all interested parties a full opportunity to express their views on the factual and legal questions raised by any application" as well as the Commission "the opportunity to address those (often-interrelated) issues in a deliberate fashion in the context of the record as a whole").

6. This includes both data that could have been submitted with the BOC's original application (e.g., some of Mr. Mickens' new May data) or that post-dates the date of application (e.g., most of what Messrs. Gates and Thomas supply).

7. CLEC change orders should be processed electronically by RBOCs without generating customer services such as fulfillment packages, just as BOC change orders for customers that the BOC had "won-back" from a CLEC would be processed without notice to the CLEC.

8. Expanded ex partes would be one effective way to discourage RBOCs from, for example, waiting until the reply phase to make new arguments that should have been made in the opening submission. See Letter from M. Rosenblum to R. Metzger, July 15, 1997, filed concurrently with this Motion.

9. E.g. LaRouche v. FEC, 28 F.3d 137, 140 (D.C. Cir. 1994) ("it is our practice not to consider any issue raised for the first time in a reply brief"); Knipe v. Skinner, 999 F.2d 708, 710-11 (2d Cir. 1993) ("Arguments may not be made for the first time in a reply brief"); id. at 711 (citing cases from other circuits).

10. FCC v. Schreiber, 381 U.S. 279, 289 (1965) (quotations and citations omitted); see also Florida Cellular Mobil Comm. v. FCC, 28 F.3d 191, 198 (D.C. Cir. 1994) (when the FCC was faced with the difficulty of reviewing expeditiously the "flood of applications" for cellular licenses, "there can be no doubt of the FCC's authority to impose strict procedural rules in order to cope" with those demands).