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                      SEPARATE STATEMENT OF 
                  COMMISSIONER KEVIN J. MARTIN
              Approving in Part, Dissenting in Part

Re:  AT&T Corp. and AT&T of the Virgin Islands, Inc. v. Virgin 
     Islands Telephone Corporation, D/B/A/ Innovative Telephone ( 
     File No. EB-04-MD-002)

     I am troubled by today's decision that finds the Virgin 
Islands Telephone Corporation (``Vitelco'') liable for refunds 
for overearnings on 1997 interstate access rates on the basis 
that such rates were not ``deemed lawful'' under section 
204(a)(3) of the Communications Act.

     Under section 204(a)(3), a local exchange carrier's access 
tariff, filed on a streamlined basis, is ``deemed lawful and 
shall be effective 7 days (in the case of a reduction in rates) 
or 15 days (in the case of an increase in rates) after the date 
on which it is filed with the Commission unless the Commission 
takes action...before the end of that 7 day or 15-day period, as 
appropriate.1   The ``deemed lawful'' language in section 
204(a)(3) immunizes from challenge those rates that are not 
suspended or investigated before a finding of unlawfulness.2   
Filing carriers are not subject to liability for damages when 
tariffs take effect, without suspension, under section 204(a)(3) 
and even if they are subsequently determined to be unlawful in a 
section 205 investigation or a section 208 complaint proceeding. 

     On June 27, 1997, the Common Carrier Bureau (``Bureau'') 
issued an order suspending and setting for investigation 
Vitelco's July 1997 to December 1997 tariff filing.3 On July 28, 
1997, on its own motion, the Bureau issued an order reconsidering 
its decision to suspend and investigate Vitelco's tariff and 
declining to investigate that tariff.4

     Today's action finds that the Bureau's Suspension Order 
``stripped Vitelco's July 1997 tariff of their deemed lawful 
status,''5 even though in the subsequent Reconsideration Order 
the Bureau reversed its decision to investigate the tariff.  The 
Commission finds that while the Bureau had the authority to strip 
the ``deemed lawful'' status from Vitelco's 1997 access rates, 
the Reconsideration Order cannot restore the lawfulness of 
Vitelco's rates because the Bureau does not have the authority to 
issue such order.6   
     
     Today's decision essentially endorses the Bureau's ability, 
on delegated authority, to deny the presumed ``deemed lawful'' 
status associated with a carrier's streamlined tariff filing and 
effectively foreclose Commission review of that decision.  On its 
own, the Bureau suspended and set for investigation Vitelco's 
tariff filing.  That action revoked the ``deemed lawful'' status 
of the tariff.  One month later, however, the Bureau reversed its 
decision to investigate the tariff and the lawfulness of 
Vitelco's tariff was thus never subsequently addressed.   A 
procedural mechanism that enables the Bureau to strip carrier 
tariffs of their presumed lawfulness through a one-day suspension 
and subsequent failure to follow through on an investigation is 
inherently unfair and inconsistent with the intent of Section 
204(a)(3).  Accordingly, I approve in part and dissent in part 
from the order. 

_________________________

1  47 USC 204(a)(3).
2  See, In the Matter of Implementation of Section 402(b)(1)(A) 
of the Telecommunications Act of 1996, Report and Order, 12 FCC 
Rcd 2170 at paras.19-21 (1997) (``Streamlined Tariff Order'').  
3  1997 Annual Access Tariff Filings, Memorandum Opinion and 
Order, Suspension Order, 13 FCC Rcd 5677 (Com. Car. Bur. June 27, 
1997) (``Suspension Order'').
4  1997 Annual Access Tariff Filings, Order Designating issues 
for Investigation Memorandum Opinion and Order and Order on 
Reconsideration, 12 FCC Rcd 11417 (Com. Car. Bur. July 28, 1997) 
(``Reconsideration Order'')
5 Order at paras. 13, 37.
6 Under section 5(c)  of the Act, the Commission may not delegate 
to a Bureau the authority to take action under section 204(a)(2), 
i.e., to issue an order concluding a tariff investigation.