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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matters of )
)
AT&T Corp., )
Com- ) EB-01-MD-001
plainant, )
v. )
)
Business Telecom, Inc., )
De- )
fendant. )
)
)
Sprint Communications Company, ) EB-01-MD-002
L.P., )
Com- )
plainant, )
)
v.
Business Telecom, Inc.,
De-
fendant.
ORDER
Adopted: September 27, 2001 Released: October 1,
2001
By the Commission:
I. INTRODUCTION
In this Order, we deny the Joint Motion to Change [the] Ex Parte
Status of [this] Proceeding (``Motion'') filed by non-parties The
Association for Local Telecommunications Services, Intermedia
Communications, Inc., Mpower Communications, Inc., NuVox
Communications, Inc., and Winstar Communications, Inc.
(collectively, ``Petitioners''). As explained below, the public
interest does not support changing the ex parte status of this
adjudicatory proceeding from ``restricted'' to ``permit-but-
disclose''. In particular, Petitioners have not shown that the
public interest would benefit from the exclusion of the three
parties to these formal complaint proceedings from any meetings
that Petitioners may wish to have with Commission decision-making
personnel. We emphasize, however, that Petitioners are (and
always have been) free to schedule meetings with Commission
decision-making personnel to discuss the BTI Order, as long as
the three parties to these formal complaint proceedings have
notice of and reasonable opportunity to participate in such
meetings.
II. BACKGROUND
In the BTI Order, the Commission partially granted formal
complaints filed by AT&T Corp. (``AT&T'') and Sprint
Communications Company, L.P. (``Sprint'') against Business
Telecom, Inc. (``BTI''), a CLEC, pursuant to section 208 of the
Communications Act of 1934, as amended (``Act'')1 and a primary
jurisdiction referral from the United States District Court for
the Eastern District of Virginia.2 The Commission held, inter
alia, that BTI's access rates during the relevant period were
unjustly and unreasonably high, in violation of section 201(b) of
the Act.3 Moreover, in order to permit the court to calculate
the damages caused by BTI's violation of section 201(b), the
Commission determined what access rates would have been just and
reasonable during the relevant period.4
None of the parties filed petitions for reconsideration of the
BTI Order. Instead, each of them filed a petition for review of
the BTI Order in the United States Court of Appeals for the
District of Columbia Circuit.5
None of the Petitioners is a party to these formal complaint
proceedings, which the Commission adjudicated in the BTI Order.
Nevertheless, on June 29, 2001, Petitioners submitted to the
Commission Secretary a Joint Petition for Reconsideration of the
BTI Order.6 Five weeks later, on August 3, 2001, Petitioners
filed the instant motion seeking alteration of the ex parte
status of these complaint proceedings from ``restricted'' to
``permit-but-disclose.''7 Petitioners assert that the public
interest requires such a change, because ``[t]he BTI Order
necessarily has wide ramifications for the entire competitive
telecommunications industry'',8 and ``as long as the proceeding
remains restricted, no party [or non-party] may schedule meetings
with Commissioners and staff to explain first hand how the [BTI
Order] affects it and the entire industry.''9 AT&T and Sprint
oppose the Motion, arguing, inter alia, that changing the ex
parte status of this proceeding could prejudice their rights.10
BTI has taken no position on the Motion.
III. DISCUSSION
Under the Commission's rules, a ``presentation'' is a
``communication directed to the merits or outcome of a
proceeding....''11 An ``ex parte presentation'' is ``[a]ny
presentation which: (1) if written, is not served on the parties
to the proceeding; or (2) if oral, is made without advance notice
to the parties and without opportunity for them to be
present.''12 In a ``permit-but-disclose'' proceeding, a person
may make an ex parte presentation to Commission decision-making
personnel, as long as the person promptly places in the public
record the substance of the presentation.13 In a ``restricted''
proceeding, by contrast, no one may make an ex parte presentation
to Commission decision-making personnel (with certain exceptions
not applicable here).14
Proceedings in which the Commission adjudicates formal complaints
brought against common carriers pursuant to section 208 of the
Communications Act of 1934, as amended (``Act''),15 are
``restricted.''16 Accordingly, these complaint proceedings in
which the Commission released the BTI Order are restricted.17
This means that no person may make to any Commission decision-
making personnel any communication directed to the merits or
outcome of the BTI Order, unless the communication, if written,
is served on the parties to the proceeding, or unless the
communication, if oral, is made with advance notice to the
parties and with opportunity for them to be present.18 The
Commission makes its formal complaint proceedings ``restricted''
to ensure, inter alia, that it conducts its adjudications in a
manner that preserves fairness and the appearance of fairness to
the parties.19 However, ``[w]here the public interest so
requires in a particular proceeding, the Commission and its staff
retain the discretion to modify the applicable ex parte
rules....''20 Petitioners bear the burden of demonstrating that
the standard is met by the preponderance of the evidence.
Petitioners have failed to meet the burden of demonstrating that
the public interest requires modification of the applicable rules
from ``restricted'' to ``permit-but-disclose.'' First,
Petitioners have not shown that they cannot fully present their
position within the parameters of a restricted proceeding.
Contrary to Petitioners' assertion otherwise, Petitioners may
schedule meetings with Commission decision-making personnel to
discuss their concerns about the BTI Order. They simply must
ensure that all of the parties to these proceedings have fair
notice of and reasonable opportunity to attend such meetings.
Given the relatively small number of parties involved (i.e.,
three), such scheduling should not be unduly difficult.
Second, as AT&T and Sprint point out, Petitioners have not shown
how the public interest would benefit by excluding the parties -
the two plaintiffs and the defendant - from meetings with
Commission decision-makers. We note that all of the parties have
petitioned for review of the BTI Order in the D.C. Circuit.
While they are litigating the BTI Order in court, and absent any
persuasive countervailing public interest basis for making this
matter a ``permit-but-disclose'' proceeding, we believe the
parties should continue to have advance notice of and the
opportunity to participate in any communications at the
Commission about the BTI Order.
Petitioners rely on four decisions in proceedings in which the
applicable ex parte rules were switched from restricted to
permit-but-disclose.21 Two of those decisions did not involve
formal complaint adjudications under section 208 of the Act.22
The other two of those decisions did involve formal complaints,
but the complaints closely related to pending non-complaint
proceedings governed by the permit-but-disclose rules.23 That is
not the situation here.24 Moreover, all four of those decisions
pre-date the creation of the Enforcement Bureau, which the
Commission designed, inter alia, to enhance the fairness,
objectivity, and transparency of its adjudicatory processes.
Consistent with that design, since the Enforcement Bureau began,
every formal complaint proceeding has remained restricted for ex
parte purposes. Thus, the authorities cited by Petitioners do
not indicate that the public interest requires changing the
applicable ex parte rules in this case. Accordingly,
Petitioners' Motion is denied.
IV. ORDERING CLAUSE
Accordingly, IT IS ORDERED, pursuant to sections 4(i), 4(j), and
208 of the Communications Act of 1934, as amended, 47 U.S.C. §§
154(i), 154(j), 208, and sections 1.727 and 1.1200-1.1216 of the
Commission's rules, 47 C.F.R. §§ 1.727, 1.1200-1.1216, that
Petitioners' Joint Motion to Change [the] Ex Parte Status of
[this] Proceeding IS DENIED.
FEDERAL COMMUNICATIONS COMMISSION
Magalie Roman Salas
Secretary
_________________________
1 47 U.S.C. § 208.
2 Advamtel LLC, et al. v. AT&T Corp., 105 F. Supp.2d 507
(E.D. Va. 2000); Advamtel LLC, et al. v. Sprint Communications
Company, L.P., 105 F. Supp.2d 476 (E.D. Va. 2000).
3 47 U.S.C. § 201(b). See BTI Order at ¶¶ 17-50.
4 See BTI Order at ¶¶ 53-59.
5 AT&T Corp. v. FCC, No. 01-1261 (D.C. Cir.).
6 Joint Petition for Reconsideration, File Nos. EB-01-MD-001,
002 (filed June 29, 2001).
7 Petitioners waited 35 days (five weeks) to file their
motion, which in itself suggests the lack of need to change the
ex parte status of these proceedings.
8 Motion at 3. See id. at 6-7.
9 Motion at 4. See id. at 8-9.
10 Opposition of AT&T Corp. to Joint Motion To Change Ex Parte
Status of Proceeding, File Nos. EB-01-MD-001, 002 (filed Aug. 9,
2001) at 4 (stating that ``such ex parte presentations could
only taint the record in this case''); Opposition of Sprint to
Joint Motion, File Nos. EB-01-MD-001, 002 (filed Aug. 10, 2001)
at 2 (noting that ``[a]ll three parties to this proceeding have
elected to seek judicial review of the [BTI] Order in the U.S.
Court of Appeals for the District of Columbia Circuit'').
11 47 C.F.R. § 1.1202(a).
12 47 C.F.R. § 1.1202(b).
13 47 C.F.R. §§ 1.1202(c), 1.1206.
14 47 C.F.R. §§ 1.1208, 1.1204.
15 47 U.S.C. § 208.
16 47 C.F.R. §§ 1.1208, 1.1206, 1.1204.
17 See, e.g., Letter from Alexander P. Starr, Chief, Market
Disputes Resolution Division, Enforcement Bureau, to James F.
Bendernagel, Counsel for AT&T, Jonathan E. Canis, Counsel for
BTI, and Cheryl A. Tritt, Counsel for Sprint, File Nos. EB-01-
MD-001, 002 (Jan. 18, 2001).
18 47 C.F.R. §§ 1.1202, 1.1208. See, e.g., Letter from
Anthony J. DeLaurentis, Attorney, Market Disputes Resolution
Division, Enforcement Bureau, to James F. Bendernagel, Counsel
for AT&T, Russell M. Blau, Counsel for BTI, Cheryl Tritt,
Counsel for Sprint, and Jonathan E. Canis, Counsel for Informal
Complaint Defendants, File Nos. EB-01-MD-001, 002; EB-01-MDIC-
0002-0016 (June 12, 2001); Letter from Anthony J. DeLaurentis,
Attorney, Market Disputes Resolution Division, Enforcement
Bureau, to James F. Bendernagel, Counsel for AT&T, Russell M.
Blau, Counsel for BTI, Cheryl Tritt, Counsel for Sprint, Richard
Juhnke, Counsel for Sprint, Jonathan E. Canis, Counsel for
Informal Complaint Defendants, and Richard Metzger, Counsel for
Focal Communications, File Nos. EB-01-MD-001, 002; EB-01-MDIC-
0002-0016 (July 30, 2001); Letter from Anthony J. DeLaurentis,
Attorney, Market Disputes Resolution Division, Enforcement
Bureau, to James F. Bendernagel, Counsel for AT&T, Russell M.
Blau, Counsel for BTI, Cheryl Tritt, Counsel for Sprint, Richard
Juhnke, Counsel for Sprint, Jonathan E. Canis, Counsel for
Informal Complaint Defendants, and Richard Metzger, Counsel for
Focal Communications, File Nos. EB-01-MD-001, 002; EB-01-MDIC-
0002-0016 (Aug. 3, 2001).
19 In the Matter of Amendment of 47 C.F.R. § 1.1200 Et Seq.
Concerning Ex Parte Presentations In Commission Proceedings,
Report and Order, 12 FCC Rcd 7348, 7351-52 at ¶ 11 (1997).
20 47 C.F.R. § 1.1200(a). See id. at § 1.1208, Note 2.
21 Motion at 5 n.5, 8 (citing ``Permit But Disclose'' Ex Parte
Status Accorded to Proceeding Involving Applications Filed by
Airtouch Communications, Inc. and Vodafone Group, P.L.C. for
Consent to Transfer Control of Airtouch Communications, Inc. to
Vodafone Group. P.L.C., Public Notice, DA 99-304, 1999 WL 317594
(Com. Car. Bur. rel. May 20, 1999) (``Airtouch Applications'');
Ex Parte Procedures Established for Formal Complaint filed by
MCI Telecommunications Corp. and MCIMetro Access Transmission
Services, Inc., Against Bell Atlantic Corp., File No. E-98-12,
Public Notice, DA 98-89, 13 FCC Rcd 887 (Wireless Tel. Bur. rel.
Jan. 16, 1998) (``MCI v. Bell Atlantic''); Beehive Telephone,
Inc, et al. v. The Bell Operating Companies, Memorandum Opinion
and Order, 12 FCC Rcd 17930 (1997) (``Beehive v. Bell Operating
Companies''); Commission Applies ``Permit But Disclose'' Ex
Parte Rules to Reconsideration of United Artists Cable of
Baltimore, Public Notice, DA 95-1366, 10 FCC Rcd 13743 (Cab.
Serv. Bur. rel. June 19, 1995) (``United Artists'').
22 See Airtouch Applications, supra; United Artists, supra.
23 See MCI v. Bell Atlantic, supra; Beehive v. Bell Operating
Companies, 12 FCC Rcd at 17931-36.
24 Although these formal complaint proceedings arise from the
same court litigation as a pending, permit-but-disclose
declaratory ruling proceeding, see AT&T and Sprint File
Petitions for Declaratory Ruling on CLEC Access Charge Issues,
CCB/CPD File No. 01-02, Public Notice, DA-01-301, 2001 WL 92220
(Com. Car. Bur. rel. Feb. 5, 2001), the declaratory ruling
petitions do not address the contested subject here, i.e., the
reasonableness of past CLEC access rates. Thus, Petitioners
correctly do not contend that the pendency of the declaratory
ruling petitions pertains to the propriety of changing the ex
parte status of these formal complaint proceedings.