445 12th Street, S.W.
Washington, D.C. 20554
Fax-On-Demand 202 / 418-2830
Internet: http://www.fcc.gov
TTY: 202/418-2555
This is an unofficial announcement of Commission action. Release of the full text of a Commission order constitutes official action. See MCI v. FCC. 515 F 2d 385 (D.C. Circ 1974).
| FOR IMMEDIATE RELEASE October 29, 1999 |
NEWS MEDIA CONTACT Bryan Tramont at (202) 418-2000 |
PRESS STATEMENT OF COMMISSIONER FURCHTGOTT-ROTH REGARDING COMMON CARRIER BUREAU’S SUSPENSION OF AT&T’S OCTOBER 29 TARIFF FILING
Washington, D.C. – The Common Carrier Bureau has suspended a tariff filed by AT&T on October 29, 1999, effectively preventing AT&T from putting into effect a $0.51 per-customer monthly price increase. I believe that the Bureau’s suspension of AT&T’s tariff is patently illegal, and I object to its action. It is transparently an effort by the Commission to hide from the American consumer the costly—and possibly unlawful--increases in the FCC’s universal service programs.
Currently, AT&T includes in its monthly bills a $0.99 line charge, in which AT&T passes along to its customers the amount that the Commission requires AT&T to contribute to federal universal service programs. These programs historically were targeted at support for high-cost telecommunications services in rural America, but in the past three years these programs have shifted the majority of funding to support the funding equipment and services for schools and libraries and for low-income households.
The Commission has recently taken two actions that will substantially increase the size of AT&T’s compulsory universal service contributions. First, implementing a decision from the United States Court of Appeals for the Fifth Circuit, the Commission has ruled that a universal service contributions may not be assessed on a telecommunications carrier’s intrastate revenues. As a result of this decision, carriers with relatively high interstate revenues, including long-distance carriers such as AT&T, will be required to contribute more to the fund. AT&T has determined that its per-customer charge will increase $0.43 per month as a result of this ruling. Second, the Commission adopted on October 21 two orders that will increase the amount of universal service funding that will be distributed to large telephone companies that serve rural areas. Again, to implement this decision, long-distance carriers will be expected to contribute more to the universal service fund. AT&T has determined that its per-customer charge will increase $0.08 per month as a result of this ruling.
For at least two independent reasons, the Common Carrier Bureau’s action is unlawful. As an initial matter, if any suspension of A&T’s tariff were appropriate (which it is not), only the Commission, rather than the Bureau, has the power to make that decision. Under our rules, the Commission has delegated authority to the Bureau to act on only those routine matters that do not require resolution of novel questions of fact, law, or policy. Specifically, our rules state that the Bureau has no "authority to act on any applications or requests which present novel questions of fact, law or policy which cannot be resolved under outstanding precedents and guidelines." See 47 C.F.R. § 0.291(a)(2). The Commission has only once before, in utterly different circumstances, rejected a tariff for a nondominant carrier. Whether a suspension of AT&T’s tariff is appropriate here is plainly a novel question of fact, law, and policy. And without Commission precedent on the issue, the Bureau simply has no authority to take the action it has.
In addition, there has been no showing whatsoever that the legal standard applicable to the suspension of a non-dominant carrier’s tariff has been met. Under our rules, tariff filings by nondominant carriers are considered prima facie lawful and will not be suspended by the Commission unless four factors have been established. See 47 C.F.R. § 1.773(a)(ii). A party seeking suspension must show that: (1) there is a high probability that the tariff would be found unlawful after investigation; (2) the harm alleged to competition would be more substantial than the injury to the public arising from the unavailability of the service pursuant to the rates and conditions proposed in the tariff filing; (3) irreparable injury will result if the tariff filing is not suspended; and (4) the suspension would not otherwise be contrary to the public interest.
The Bureau has not even attempted to make any of these showings. And it could not. It is not "unlawful" for AT&T to attempt to recover from its customers the contributions that the Commission has required it make. To the extent the Bureau believes that AT&T’s charges are "too high," that is a decision for consumers, not the Bureau to make. As the Commission repeatedly has recognized, the market for long-distance is a competitive one. If AT&T attempts to pass along to consumers inappropriately high universal service charges, consumers have the choice to switch to other carriers. Yet other carriers also face these new universal service charges, and in a competitive market, all taxes, fees, and charges are ultimately passed along to consumers, no matter what federal bureaucracies may hope.
What is driving the Bureau’s decision is quite clear. It has recently taken actions that will substantially increase the size of social programs under universal service, but these increases have the politically unpopular effect of substantially increasing the contributions that consumers must make to subsidize these programs. The Commission cannot have it both ways: either the social programs will have to be cut, or consumers will have to know that they are paying for them. For the FCC to use illegal means to stop AT&T from informing their customers about the fees they pay is pure folly and deception.