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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554

   In the Matter of )

   )

   Bright House Networks, LLC, et al., )

   )

   Complainants, ) File No. EB-08-MD-002

   )

   v. )

   )

   Verizon California, Inc., et al., )

   )

   Defendants. )

                          MEMORANDUM OPINION AND ORDER

   Adopted: June 20, 2008 Released: June 23, 2008

   By the Commission: Commissioner McDowell issuing a statement; Chairman
   Martin dissenting and issuing a statement.

   I. INTRODUCTION

    1. In this Memorandum Opinion and Order, we reject the Enforcement
       Bureau's April 11, 2008, Recommended Decision in this Accelerated
       Docket proceeding, and grant in part a formal complaint filed against
       Defendants (collectively, "Verizon") pursuant to section 208 of the
       Communications Act of 1934, as amended ("Act"). For the reasons
       explained below, we conclude that Verizon is violating section 222(b)
       of the Act by using, for customer retention marketing purposes,
       proprietary information of other carriers that it receives in the
       local number porting process, and we order Verizon immediately to
       cease and desist from such unlawful conduct.

    2. The Recommended Decision recommended that we (i) deny the Complaint's
       claims under sections 222(b) and 222(a) of the Act (Counts I and II,
       respectively); (ii) rule on the Complaint's claim under section 201(b)
       of the Act in a separate, subsequent order; and (iii) initiate a
       rulemaking regarding customer retention marketing practices.
       Complainants filed comments challenging the Recommended Decision, and
       Verizon filed comments supporting it. We have carefully reviewed the
       Recommended Decision and are not persuaded by its reasoning.
       Consequently, we reject its recommendations to deny Counts I and II of
       the Complaint, and to defer decision on Count III. Instead, we grant
       Count I, and dismiss Counts II and III without prejudice because it is
       unnecessary to reach those two Counts. We will take under further
       advisement the recommendation to initiate a rulemaking.

   II. background

     A. The Parties

    3. Defendants are telecommunications carriers that operate as incumbent
       local exchange carriers (incumbent "LECs") in a number of states.
       Complainants Bright House Networks, LLC ("Bright House"), Comcast
       Corporation ("Comcast"), and Time Warner Cable Inc. ("Time Warner")
       (collectively, "Complainants") provide facilities-based voice services
       to retail customers using Voice over Internet Protocol ("VoIP") in
       competition with Verizon's local voice services. Complainants provide
       those services by relying on wholesale competitive local exchange
       carriers ("Competitive Carriers") to interconnect with incumbent LECs
       and to provide transmission services, local number portability ("LNP")
       functions, and other functionalities. Bright House and Comcast rely on
       Competitive Carriers that are affiliated with them, while Time Warner
       relies on Sprint Communications Company L.P. ("Sprint").

     A. Local Number Portability and Verizon's Retention Marketing Program

    4. The Communications Act requires local exchange carriers to provide
       number portability, i.e., the ability to retain one's phone number
       when switching from one telecommunications carrier to another.  Thus,
       when customers decide to switch voice service from Verizon to one of
       the Complainants, they may choose to retain their telephone numbers.
       Such a choice triggers an inter-carrier process -- developed mainly by
       the industry -- by which the customer's telephone number is "ported"
       from Verizon to the Complainant's Competitive Carrier.

    5. The number porting process begins with the Competitive Carrier, at the
       direction of a Complainant, submitting a "Local Service Request"
       ("LSR") to Verizon. The LSR serves as both a request to cancel the
       customer's Verizon service and a request to port the customer's
       telephone number to the Competitive Carrier. Under current industry
       practices, the LSR includes at least the following information: the
       identity of the submitting carrier; the date and time for the
       disconnection of Verizon's retail service (and, by implication, the
       date and time for the initiation of Complainant's service); the name
       and location of the retail customer whose service is being switched;
       the Verizon retail account number; and whether the port involves one
       or more numbers. Thus, the LSR informs Verizon that, at a particular
       date and time, the customer's telephone number is to be ported to the
       Competitive Carrier, and the customer's existing Verizon voice service
       is to be disconnected, so that the Complainant served by the
       Competitive Carrier may initiate retail service using the customer's
       existing telephone number. After submitting the LSR to Verizon, the
       Complainant or Competitive Carrier sends the Number Portability
       Administration Center ("NPAC") a "create message" that is used to
       enter a pending subscription record with the necessary routing data
       for the number to be ported.

    6. Upon receiving the LSR, Verizon confirms that it contains sufficient
       information to accomplish the port, and then creates an internal
       service order, which it transmits to the appropriate downstream
       Operations Support Systems. The transmittal of the internal service
       order initiates several work steps for Verizon. First, Verizon's
       automated systems send the Complainant or Competitive Carrier a Local
       Service Request Confirmation (also known as a Firm Order Confirmation,
       or "FOC") that contains information specific to the individual
       request. In addition, Verizon creates a disconnect order scheduling a
       retail service disconnect on the requested due date. Moreover, Verizon
       establishes a "10-digit trigger" in the switch serving the retail
       customer to prevent the misrouting of certain calls in the short
       interval after the number has been ported but before disconnection of
       the customer's Verizon retail service has been completed. Finally,
       Verizon confirms the pending subscription record that the new provider
       previously created in the NPAC database. Meanwhile, the Complainant
       and/or Competitive Carrier perform any necessary work on their own
       networks to turn up the customer's service.

    7. Beginning around the summer of 2007, Verizon started a program of
       retention marketing directed specifically at retail customers who are
       in the midst of the carrier-changing/number-porting process just
       described. The program's first step is generating -- on a frequent, if
       not daily, basis -- a marketing "lead list" of Verizon customers to be
       contacted by Verizon that is based on the LSRs explained above. To
       generate the lead list, Verizon begins with the universe of customers
       for whom there are retail-service disconnect orders pending, including
       disconnect orders that were prompted by the submission of an LSR.
       Verizon then eliminates from the lead list all those customers who are
       not switching their phone service and porting their telephone numbers
       from Verizon to a facilities-based service provider, such as
       Complainants. Put differently, Verizon keeps on the lead list only
       those customers who are switching their phone service and porting
       their telephone numbers from Verizon to a facilities-based service
       provider, such as Complainants. Verizon is able to carry out this
       sifting because, inter alia, the disconnect orders stemming from the
       Competitive Carriers' LSRs differ from all other disconnect orders.
       Specifically, disconnect orders stemming from the Competitive
       Carriers' LSRs contain "additional entries that are required to
       facilitate the actual porting of the telephone number to the new
       provider."

    8. Upon completion of the lead list, Verizon immediately -- sometimes
       within 24 hours of receiving the LSR -- contacts customers on the lead
       list, by express mail, e-mail, and/or automated telephone message.
       Those contacts encourage customers to remain with Verizon, offering
       price incentives such as discounts and American Express reward cards.
       Verizon conducts this marketing while the number-porting request is
       still pending, i.e.,  before the new provider (such as Complainants)
       has established service to the customer.

    9. If Verizon is successful in persuading a customer to cancel his or her
       order with the new service provider, Verizon cancels the internal
       service order relating to the port request, and Verizon's systems
       issue a "jeopardy notice" to the provider that submitted the port
       request. Verizon also puts the new provider's port request "into
       conflict" by sending a conflict code to NPAC. That conflict code
       cannot be overridden by the new provider. If the new service provider
       persuades the customer to switch after all, it can either seek
       resolution of the conflict code or, what is much more common, submit a
       new LSR.

     A. The Complaint

   10. On February 11, 2008, Complainants filed the Complaint alleging, inter
       alia, that the Verizon customer retention marketing practices
       described above violate section 222(b) of the Act. Complainants seek
       an order enjoining Verizon from continuing such customer retention
       marketing. Complainants also seek an award of damages, but defer that
       determination to a separate, subsequent proceeding pursuant to section
       1.722(d) of the Commission's rules. Thus, this Order addresses only
       the question of Verizon's alleged liability.

   III. LEGAL ANALYSIS

   11. Section 222(b) provides that "[a] telecommunications carrier that
       receives or obtains proprietary information from another carrier for
       purposes of providing any telecommunications service shall use such
       information only for such purpose, and shall not use such information
       for its own marketing efforts." Thus, a telecommunications carrier
       violates section 222(b) when it (a) receives or obtains proprietary
       information; (b) from another carrier; (c) for purposes of providing
       any telecommunications service; and (d) fails to use such information
       "only" for such purpose, or uses the information "for its own
       marketing efforts." For the reasons discussed below, we find that
       Verizon's retention marketing program violates section 222(b) of the
       Act. Specifically, we find that Verizon, a telecommunications carrier,
       receives proprietary information from the Competitive Carriers; that
       this information is contained in number porting requests that were
       submitted for the purpose of the Competitive Carriers providing
       telecommunications service to the Complainants, and for the purpose of
       Verizon providing telecommunications service to the Competitive
       Carriers; and that Verizon uses the proprietary information for its
       own marketing efforts.

   A. The LSRs Submitted by the Competitive Carriers to Verizon Contain
   "Proprietary Information from Another Carrier" Within the Meaning of
   Section 222(b).

   12. As described above, when a Competitive Carrier, working in conjunction
       with one of the Complainants, submits an LSR to Verizon, Verizon
       receives advance notice that the Complainant (again, working in
       conjunction with the Competitive Carrier) will supplant Verizon as the
       voice service provider to a particular customer on a particular date.
       Complainants provide this highly sensitive information to their
       competitor, Verizon, only because they must do so in order to serve
       their newly-won customer properly. Specifically, Complainants have no
       choice but to provide this information (via a Competitive Carrier) to
       Verizon in order to effectuate a number port in accordance with
       industry processes.

   13. The Commission has already found that advance notice of a carrier
       change that one carrier is required to submit to another is carrier
       "proprietary information" under section 222(b). These rulings stem
       from the inherently sensitive nature of the information itself and
       from a concern that carriers not unfairly exploit such information
       received in advance through necessary carrier-to-carrier interactions.
       As the Commission has observed, "competition is harmed if any carrier
       uses carrier-to-carrier information . . . to trigger retention
       marketing campaigns, and [we] consequently prohibit such actions
       accordingly."  Therefore, under Commission precedent, the carrier
       change information that the Competitive Carriers must submit to
       Verizon in the LSRs is plainly "proprietary" within the meaning of
       section 222(b).

   14. Verizon proffers several arguments for concluding that the foregoing
       Commission precedent does not apply to the information at issue here.
       As explained below, all of those arguments lack merit.

   15. First, in Verizon's view, the information that the Competitive
       Carriers submit to Verizon in an LSR is actually Verizon's
       information, not another carrier's. Specifically, according to
       Verizon, the fact that its own customer has cancelled his or her
       retail Verizon voice service on a certain date is information that
       Verizon, as the current retail carrier, requires to carry out the last
       portion of its retail service -- timely disconnection.  This argument
       distorts the nature of the information contained in the LSRs. Although
       the LSR does contain information that Verizon needs to disconnect a
       customer, it also contains additional, highly sensitive competitive
       information that is independent of the mechanics of disconnection.
       Specifically, the LSR discloses in advance that a competing carrier
       has convinced a particular Verizon customer to switch to the competing
       carrier's voice service on a particular date. This is the information
       that is proprietary. Significantly, even Verizon does not dispute that
       information on the LSR revealing the identity of the new carrier is
       proprietary information.  And, as explained in more detail later, it
       is precisely that information - i.e., the fact that a retail customer
       has chosen not only to disconnect Verizon service but also to switch
       to a competitor on a particular date - that Verizon employs in its
       retention marketing program.

   16. Verizon also argues that the carrier-change information in the LSR is
       the customer's information, and the Competitive Carrier is merely
       conveying that information as the customer's agent. We disagree. It is
       true that a Verizon retail customer has every right to contact Verizon
       directly to state that she intends to switch to a Complainant's voice
       service. Indeed, the Commission has already recognized that truth and
       held that, if a customer makes such a contact, the carrier-change
       information conveyed by the customer to Verizon is not "proprietary"
       within the meaning of section 222(b) and may be used to engage in
       retention marketing.  In the absence of such a direct customer
       contact, however, the carrier-change information conveyed in
       carrier-to-carrier communications remains proprietary. Moreover,
       labeling the Complainant (or Competitive Carrier) as merely the
       "agent" of the customer is misleading. By transmitting the information
       in the LSR, the Competitive Carrier is certainly acting to help
       effectuate the customer's choice of carrier, but it is also acting to
       promote its own commercial interests, which requires conveying its own
       proprietary information. Verizon's agency theory also conflicts with
       the approach the Commission has taken in applying section 222(b) in
       the slamming context. Just as in the context of a number porting
       request, a customer can effect a change of carrier by authorizing the
       new carrier to make the change request on the customer's behalf. 
       Nevertheless, the Commission banned the use of carrier change requests
       for marketing purposes as inconsistent with section 222(b). By
       Verizon's reasoning, a carrier submitting a carrier change request on
       behalf of a customer would seemingly be acting only as the customer's
       agent, and the marketing ban would not apply. That was clearly not the
       approach taken by the Commission.

   17. Verizon further contends that the LSRs do not convey proprietary
       information "from another carrier" within the meaning of section
       222(b), because Complainants are not "telecommunications carriers."
       Verizon's contention lacks merit, even assuming, arguendo, that (i)
       the statute's reference to "carrier" means "telecommunications
       carrier"; (ii) Complainants are not "telecommunications carriers;" and
       (iii) the "proprietary information" must concern the carrier who
       conveys it. Due to the closeness of the operational partnership
       between Complainants and their respective Competitive Carriers,  we
       hold that information regarding a Verizon customer's decision to
       switch from Verizon to a Complainant is as proprietary to the
       Competitive Carrier as it is to the Complainant. Moreover, as
       explained below, the Competitive Carriers are "telecommunications
       carriers" under section 222(b). Thus, when a Competitive Carrier
       conveys carrier-change information in an LSR to Verizon, Verizon is
       receiving such information "from a carrier" under section 222(b).

   18. In sum, for all of the foregoing reasons, the LSRs submitted by the
       Competitive Carriers to Verizon contain "proprietary information from
       another carrier" within the meaning of section 222(b).

   B. When a Competitive Carrier Submits an LSR to Verizon, Verizon Receives
   It "For Purposes of [the Competitive Carrier] Providing Telecommunications
   Service" to a Complainant Within the Meaning of Section 222(b).

   19. Section 222(b) prohibits a telecommunications carrier from using for
       its own marketing efforts any proprietary information that it receives
       from another carrier "for purposes of providing any telecommunications
       service...." Section 222(b) does not expressly state whose provision
       of telecommunications services is covered. Specifically, section
       222(b) does not expressly state whether its marketing ban applies when
       the receipt of proprietary information is for purposes of (i) the
       submitting carrier (here, a Competitive Carrier) "providing any
       telecommunications service," or (ii) the receiving carrier (here,
       Verizon) "providing any telecommunications service," or (iii) either
       the submitting carrier or the receiving carrier "providing any
       telecommunications service."

   20. The parties do not dispute that section 222(b) applies when the
       receiving carrier provides telecommunications service. The issue here
       is whether section 222(b) also applies when a telecommunications
       carrier's receipt of proprietary information from another carrier is
       for purposes of the submitting carrier providing telecommunications
       services. For the following reasons, and consistent with Commission
       precedent in a similar context, we conclude that section 222(b)'s
       marketing ban applies in the latter situation as well.

   21. Our conclusion rests on a reasonable construction of the statutory
       language. Indeed, in addressing the meaning of section 222(b), the
       Commission has already held that "information contained in a carrier
       change request is by its very nature proprietary [and] ... may only be
       used by the executing carrier to effectuate the provision of service
       by the submitting carrier to its customer." Applied in the context of
       this case, it is reasonable to read section 222(b) as stating that,
       when Verizon "receives or obtains proprietary information from a
       [Competitive Carrier] for purposes of [the Competitive Carrier]
       providing any telecommunications service ... [, Verizon] shall use
       such information only for such purpose [i.e., the Competitive Carrier
       providing a telecommunications service], and shall not use such
       information for its own marketing efforts."

   22. Our conclusion is also compelled by the Commission's prior assessment
       of the fundamental objective of section 222(b): to protect from
       anti-competitive conduct carriers who, in order to provide
       telecommunications services to their own customers, have no choice but
       to reveal proprietary information to a competitor. To achieve that
       objective, the Commission has repeatedly construed section 222(b) to
       mean that, when a customer's current carrier obtains carrier-change
       information from a competing carrier solely because of the current
       carrier's existing relationship with the customer, the current carrier
       may not use that information to attempt to disrupt the carrier change.
       The existing carrier must remain "neutral," and not act as a
       competitor, until the carrier change is completed and the new carrier
       has begun providing telecommunications service. At bottom, the
       Commission has focused on preventing the receiving carrier from
       hindering the submitting carrier's ability to initiate its provision
       of telecommunications service to its customers.

   23. In accordance with our view of section 222(b)'s overriding goal, as
       just described, we conclude that section 222(b)'s marketing ban
       applies when a telecommunications carrier's receipt of proprietary
       information from another carrier is for purposes of the submitting
       carrier providing telecommunications service, and is not limited to
       situations where the information is received for purposes of the
       receiving carrier providing service. Otherwise, section 222(b)'s
       protection could have irrational gaps, such as situations where the
       receiving carrier provides no "telecommunications service" to the
       submitting carrier.

   24. Applying that construction of section 222(b) here, section 222(b)'s
       requirements squarely encompass Verizon's retention marketing. In
       order to initiate its provision of telecommunications service to a
       Complainant to serve a particular new customer, the Competitive
       Carrier has no choice but to notify Verizon of the customer's decision
       to switch service from Verizon to the Complainant. Thus, as the
       receiving carrier under section 222(b), Verizon may use that
       carrier-change information only for purposes of helping effectuate the
       initiation of the Competitive Carrier's (i.e., the submitting
       carrier's) telecommunications service.

   25. Verizon contends that, as a grammatical matter, the "purpose"
       referenced twice in section 222(b) must concern only the receiving
       carrier - and not the submitting carrier - providing
       telecommunications service. Put differently, Verizon contends that
       section 222(b) must be read to apply only when the receipt of
       proprietary information is for purposes of the receiving carrier
       providing telecommunications service. We disagree. As described above,
       we find, consistent with the Commission's statements in the slamming
       context, that the language of section 222(b) does not require such a
       reading. The statutory language is reasonably susceptible of meaning
       that the "purpose" includes the submitting carrier providing
       telecommunications service. And that interpretation more
       comprehensively achieves section 222(b)'s objectives, as previously
       explained.

   26. Verizon also asserts that the Commission has already construed section
       222(b)'s marketing ban to apply only where, unlike here, the receiving
       carrier is providing a wholesale telecommunications service to the
       submitting carrier, such as resale or access. We see no such limiting
       construction in any Commission order. When the Commission has referred
       to the receiving carrier's "wholesale operations" or "wholesale
       service" or "carrier-to-carrier service" and the like, it has done so
       merely to identify the source of the carrier-change information as
       something other than the receiving carrier's direct communications
       with its retail customer; it has not done so to limit section 222(b)'s
       scope to situations where the receiving carrier is providing a
       wholesale "telecommunications service" to the submitting carrier.

   27. Moreover, such a limiting construction would contravene what the
       Commission has repeatedly described as a fundamental policy of the Act
       - to promote facilities-based local competition. Specifically, if
       Verizon's interpretation of the Commission's retention marketing
       orders were correct, those orders would have prevented receiving
       carriers from retention marketing against resellers and UNE
       competitors, but allowed receiving carriers to retention market
       against facilities-based competitors. Verizon has not proffered any
       sensible basis for the Commission to have made such a distinction, and
       we can discern none. Quite the contrary. While their number-port
       requests are pending with a receiving carrier, facilities-based
       carriers are just as vulnerable as resellers to any anti-competitive
       conduct by the receiving carrier.

   28. Finally, in Verizon's view, even assuming, arguendo, that section
       222(b) generally applies when the submitting carrier is the one
       "providing telecommunications service," section 222(b) does not apply
       here, because the information contained in the LSRs does not relate to
       the specific telecommunications services provided by the Competitive
       Carriers to Complainants. We disagree. Verizon focuses only on the
       services provided by the submitting carrier, but the language of
       section 222(b) is not so limited, requiring only that the proprietary
       information be submitted for the purpose of providing any
       telecommunications service. That purpose is certainly satisfied here.
       A Competitive Carrier submits the LSR to Verizon so that, upon
       completion of the number port and service disconnection, the
       Competitive Carrier can provide telecommunications service to a
       Complainant.

   29. In sum, when a Competitive Carrier submits an LSR to Verizon, Verizon
       receives that LSR "for purposes of providing any telecommunications
       service" within the meaning of section 222(b). That conclusion,
       combined with the conclusion reached above about the LSR's proprietary
       nature, means that section 222(b) forbids Verizon from using the
       information in the LSR for its own marketing efforts.

   30. Moreover, even if Verizon were correct that section 222(b) applies
       only when the carrier that receives proprietary information uses it
       for the purpose of providing telecommunications service, we would find
       that Verizon's retention marketing practices violate the statute
       because Verizon's provision of LNP constitutes a telecommunications
       service.

   31. Verizon argues that LNP is not a telecommunications service because it
       does not constitute transmission, and because it is not offered for a
       fee. Number portability, however, is a wholesale input that is a
       necessary component of a retail telecommunications service. We have
       previously found that services or functions that are "incidental or
       adjunct to common carrier transmission service" - i.e., they are "an
       integral part of, or inseparable from, transmission of communications"
       - should be classified as telecommunications services. For instance,
       the Commission has found that central office space for collocation,
       certain billing and collection services, and validation and screening
       services  should be treated for regulatory purposes in the same manner
       as the transmission services underlying them, notwithstanding that
       none of these services actually entails transmission.

   32. LNP similarly constitutes such an "adjunct to basic" service.
       Verizon's provision of LNP is a vital part of the telecommunications
       services that it provides to the Competitive Carriers. Without the
       number port, Verizon could not route traffic to its former customer,
       as required under its interconnection agreements with the Competitive
       Carriers. Moreover, implementing LNP requires Verizon to be involved
       in properly switching and transmitting calls to the new carrier -
       these are unquestionably "telecommunications" functions. For instance,
       the parties have stipulated that for LNP to work, Verizon must provide
       the transmission necessary to route calls in its role as the "N-1"
       carrier (the next-to-last carrier in the call sequence).

   33. For all of the above reasons, we find that Verizon's provision of LNP
       constitutes a telecommunications service for purposes of section
       222(b).

   C. Verizon's Retention Marketing Program Makes Use of Other Carriers'
      Proprietary Information.

   34. An examination of the way Verizon handles the proprietary information
       it receives from the Competitive Carriers via LSRs confirms that
       Verizon uses this information "for its own marketing efforts," in
       violation of section 222(b). As stated above, the proprietary
       information at issue is the fact that, at a particular date and time
       in the near future, a Complainant will, in conjunction with a
       Competitive Carrier, begin to provide facilities-based, voice service
       to a specific customer who presently is being served by Verizon.
       Verizon uses that very information to swiftly identify exactly to whom
       it will engage in retention marketing. In particular, Verizon uses
       that information to help winnow from the universe of its daily
       disconnect orders all customers who are disconnecting service for any
       reason other than that they are switching service to a
       facilities-based, competing service provider like Complainants. This
       "threshing of the wheat from the chaff" leaves Verizon with a lead
       list consisting only of those customers who are switching their
       service to a facilities-based, competing provider like Complainants.
       Thus, the proprietary information contained in LSRs is a key
       organizing tool used by Verizon to determine which customers will
       receive retention marketing.

   35. Verizon asserts that its retention marketing depends only on the
       non-proprietary fact that Verizon's own retail customer has cancelled
       voice service and seeks disconnection - information that Verizon says
       it obtains legitimately, and of necessity, as part of its retail voice
       operations. Verizon's own description of how it targets customers for
       retention marketing belies that assertion. Verizon acknowledges that,
       in order to identify its retention marketing audience, Verizon relies
       specifically on two facts - both the fact that the disconnect request
       stems from a switch in carriers rather than some other reason (such as
       moving or otherwise exiting the market), and the fact that the new
       carrier is a facilities-based provider. Verizon has identified no
       source for either of those facts other than the proprietary
       information contained in the LSRs submitted to Verizon by the
       Competitive Carriers. That such information finds its way into a
       "retail" disconnect order does not mean that Verizon refrains from
       using it to target customers for retention marketing.

   36. Verizon also contends that, because it does not mention any
       Complainant's name in any of its oral or written retention marketing,
       Verizon does not "use" proprietary information. Verizon's contention
       misses the point. The Complainants' names, standing alone, are not the
       information at issue. What is at issue is the carrier change
       information, which, as discussed above, lies at the heart of Verizon's
       retention marketing program.

     A. The Bright House and Comcast-affiliated Competitive Carriers are
        "Telecommunications Carriers" Offering "Telecommunications Service."

   37. Verizon argues that, even if section 222(b) refers to the submitting
       carriers' provision of "telecommunications service," section 222(b)'s
       marketing ban does not apply to Verizon's receipt of information from
       Comcast's and Bright House's affiliated Competitive Carriers. That is
       because, according to Verizon, the record lacks evidence that those
       Competitive Carriers provide "telecommunications services" to Comcast
       and Bright House. This argument hinges on the statutory definitions of
       "telecommunications," telecommunications carrier,"  and
       "telecommunications service,"  as well as on the Commission's
       determination that the common law concept of "common carrier" sheds
       significant light on the meaning of those statutory definitions.

   38. Verizon's argument boils down to an assertion that, with respect to
       the telecommunications provided to Comcast and Bright House, the
       record lacks evidence that the Comcast and Bright House Competitive
       Carriers engage in "offering" those telecommunications "directly to
       the public, or to such classes of users at to be effectively available
       directly to the public...." Put in common law terms, Verizon asserts
       that the Comcast and Bright House Competitive Carriers do not "hold
       themselves out" to the public regarding the telecommunications they
       provide to their Complainant affiliates. Neither the Communications
       Act nor the case law describes exactly what is required to "offer"
       telecommunications "directly to the public, or to such classes of
       users at to be effectively available directly to the public."
       Therefore, whether a provider has made such an offering must be
       determined on a case-by-case basis.

   39. Based on the specific record in this specific case, we find that the
       Bright House and Comcast-affiliated Competitive Carriers are common
       carriers for purposes of section 222(b). As an initial matter, the
       Comcast and Bright House Competitive Carriers "self-certify" that they
       do and will operate as common carriers and attest that they will serve
       all similarly situated customers equally.  We give significant weight
       to these attestations because being deemed a "common carrier" (i.e.,
       being deemed to be providing "telecommunications services") confers
       substantial responsibilities as well as privileges, and we do not
       believe these entities would make such statements lightly. Further
       supporting our conclusion are the public steps the Comcast and Bright
       House Competitive Carriers have taken, consistent with their
       undertaking to serve the public indifferently. Specifically, each of
       the Comcast and Bright House Competitive Carriers has obtained a
       certificate of public convenience and necessity (or a comparable
       approval) from the state in which it operates. Moreover, each of the
       Comcast and Bright House Competitive Carriers has entered into a
       publicly-available interconnection agreement with Verizon, filed with
       and approved by the relevant state commission pursuant to sections 251
       and 252 of the Act. These facts, in combination, establish a prima
       facie case that the Comcast and Bright House Competitive Carriers are
       indeed telecommunications carriers for purposes of section 222(b).

   40. To try to rebut Complainants' prima facie case, Verizon points out
       that the Comcast and Bright House Competitive Carriers (i) serve only
       their affiliates, and (ii) lack a tariff or website posting or any
       other advertisement regarding the telecommunications at issue. We find
       these facts in isolation insufficient to overcome Complainants'
       showing for purposes of section 222(b). First, it is well-established
       that "[o]ne may be a common carrier though the nature of the service
       rendered is sufficiently specialized as to be of possible use to only
       a fraction of the total population." Verizon has submitted no credible
       evidence that the Competitive Carriers are unwilling to provide
       telecommunications services to unaffiliated entities on a
       nondiscriminatory basis. Second, the telecommunications services at
       issue here need not be federally tariffed, and Verizon has not argued
       that state tariffs are required. Furthermore, by obtaining publicly
       available state certificates and interconnection agreements, the
       Comcast and Bright House Competitive Carriers have given notice that
       telecommunications services are available to the particular class of
       potential customers that might be interested in the services at issue
       here. If a voice services provider similarly situated to Comcast and
       Bright House were looking for a provider of these services, the
       Comcast and Bright House Competitive Carriers would be obvious
       choices. Finally, prior to the dispute at issue here, Verizon itself
       appears to have treated these entities as telecommunications carriers.

   41. In sum, based on the particular facts in this record regarding the
       telecommunications provided to Comcast and Bright House by their
       affiliated Competitive Carriers, we conclude that Comcast and Bright
       House have shown, by a preponderance of the evidence, that the
       Competitive Carriers are telecommunications carriers for purposes of
       section 222(b) of the Act and provide "telecommunications services" to
       Comcast and Bright House within the meaning of section 222(b) of the
       Act.  We stress, however, that our holding is limited to the
       particular facts and the particular statutory provision at issue in
       this case.  The U.S. Court of Appeals for the D.C. Circuit has made
       clear that an agency may interpret an ambiguous term "differently in
       two separate sections of a statute which have different purposes." 
       Here, section 222(b) has a different purpose - privacy protection -
       than many other provisions of the Communications Act, and we believe
       that this purpose argues for a broad reading of the provision.  As a
       result, our decision holding the Competitive Carriers to be
       "telecommunications carriers" for purposes of section 222(b) does not
       mean that they are necessarily "telecommunications carriers" for
       purposes of all other provisions of the Act.  We leave those
       determinations for another day.  While the Act does provide a
       definition of the term "telecommunications carrier," "the presence of
       a definition does not necessarily make the meaning clear.  A
       definition only pushes the problem back to the meaning of the defining
       terms."  Therefore, we believe that it may be permissible to interpret
       an ambiguous but defined term differently in different statutory
       provisions that serve distinct purposes.  

   E. Verizon's Policy and Constitutional Arguments Do Not Justify its
   Proposed Reading of Section 222(b).

   42. Verizon argues that interpreting section 222(b) so as to allow its
       retention marketing program would promote competition and benefit
       consumers, and has submitted the declaration of an economist to
       support this assertion.  Verizon also suggests that we should construe
       section 222(b) to permit the challenged customer retention marketing
       practices because doing so would help level the playing field on which
       voice providers compete for video and Internet customers, and video
       and Internet providers compete for voice customers.

   43. Verizon's policy arguments might be appropriately raised anew in some
       other context, such as a request to forbear from application of
       section 222(b) or a notice of proposed rulemaking under section 201(b)
       of the Act, but do not persuade us to adopt Verizon's interpretation
       of section 222(b) in this adjudication. The Commission has already
       evaluated the policy concerns underlying section 222(b) and adopted a
       construction that balances the concerns of protecting proprietary
       information and promoting competition.  Our decision here is fully in
       accord with those prior decisions. Verizon's policy arguments, and its
       economist's declaration, simply fail to consider the importance the
       Commission has placed on protecting proprietary information that voice
       carriers are required to share with their competitors. Moreover,
       Verizon's "level playing field" argument ignores the fact that the
       statute itself treats different services differently - on its face,
       section 222 applies to telecommunications services, but not to video
       or other services.  That different statutory treatment reflects the
       fact that only a competing voice service provider must communicate and
       coordinate with a customer's existing voice service provider in order
       to initiate service to that new customer. Where, as here, a provider
       has no choice but to communicate competitively sensitive information
       to its rival, the rival cannot use that information for marketing.

   44. Verizon also asserts that the interpretation of section 222(b)
       advanced by Complainants "would severely restrict lawful,
       non-misleading speech and accordingly would raise significant First
       Amendment concerns."  More specifically, Verizon argues that no
       legitimate government interest could be served by restricting
       marketing "for the sole reason that it is based on information
       submitted by a service provider on behalf of the customer rather than
       by the customer him or herself."  As even Verizon notes, however, the
       government may restrict truthful communications if such restriction is
       narrowly tailored to serve a substantial government interest.  The
       Commission previously found that this test was met when it interpreted
       section 222(b) as prohibiting retention marketing based on the use of
       carrier change information.  The same analysis applies here concerning
       retention marketing based on the use of carrier change information
       embedded in number porting requests.

   IV. Conclusion and Relief Awarded

   45. In sum, we find that, under section 222(b) of the Act, the
       number-porting/carrier-change information obtained by Verizon from the
       Competitive Carriers is "proprietary" to the Competitive Carriers;
       Verizon obtains the proprietary information "for purposes of [the
       Competitive Carriers] providing ... telecommunications service" to
       Complainants, and for purposes of Verizon providing a
       telecommunications service to the Competitive Carriers; each of the
       Competitive Carriers is providing "telecommunications service" to a
       Complainant; and Verizon uses that proprietary information for a
       purpose other than the Competitive Carriers providing
       telecommunications service to Complainants, namely, "its own marketing
       efforts." Consequently, we hold that Verizon's customer retention
       marketing activities, as described above, violate section 222(b) of
       the Act. In turn, we grant Complainants' claim under section 222(b) of
       the Act (i.e., Count I), and award the requested injunctive relief.
       Specifically, we hereby order Verizon to immediately cease and desist
       from engaging in the customer retention marketing activities described
       above.

   V. ORDERING CLAUSES

   46. Accordingly, IT IS ORDERED, pursuant to sections 4(i), 4(j), 201(b),
       208, 222, and 303(r) of the Act, and sections 1.720-1.736 of the
       Commission's rules, that the Enforcement Bureau's April 11, 2008,
       Recommended Decision in File No. EB-08-MD-002 IS REJECTED.

   47. IT IS FURTHER ORDERED, pursuant to sections 4(i), 4(j), 201(b), 208,
       222, and 303(r) of the Act, and sections 1.720-1.736 of the
       Commission's rules, that Count I of the Complaint is GRANTED, and that
       Counts II and III are DISMISSED without prejudice.

   48. IT IS FURTHER ORDERED, pursuant to sections 4(i), 4(j), 208, 222, and
       303(r) of the Communications Act of 1934, as amended, 47 U.S.C. S:S:
       154(i), 154(j), 208, 222, and 303(r), and sections 1.720-1.736 of the
       Commission's rules, 47 C.F.R. S:S: 1.720-1.736 that Verizon SHALL
       IMMEDIATELY CEASE AND DESIST from engaging in the customer retention
       marketing activities described in this Order.

   FEDERAL COMMUNICATIONS COMMISSION

   Marlene H. Dortch

   Secretary

                                  STATEMENT OF

                      CHAIRMAN KEVIN J. MARTIN, DISSENTING

   Re: Bright House Networks, LLC et al., Complainant, v. Verizon California
   Inc., et al., Defendants.

   I have consistently maintained that it is important to create a regulatory
   environment that promotes competition and investment, setting rules of the
   road so that all players can compete on a level playing field. Today, a
   majority of the Commission voted to allow complainants--players providing
   a bundle of services over one platform (cable VoIP)-to gain an advantage
   over their competitors-players providing those same bundled services over
   a different platform (traditional telephone service). Specifically, the
   majority decided to prohibit some companies from marketing to retain their
   customers, even though the marketing practices prohibited today are
   similar to the aggressive marketing techniques engaged in by the
   complainants themselves (when they provide cable video service). To reach
   this result, the majority has created new law, holding that these
   complainants are "telecommunications carriers" for purposes of obtaining
   this competitive advantage, but that they are not "telecommunications
   carriers" for other purposes, such as complying with the obligations of
   "telecommunications carriers."

   I am concerned that today's decision promotes regulatory arbitrage and is
   outcome driven; it could thwart competition, harm rural America, and
   frustrate regulatory parity. Therefore, I must dissent from today's
   decision.

   In its Recommended Decision, the Enforcement Bureau (Bureau) recommended
   that the Commission, among other things, deny the cable Complainants'
   claims that Verizon's practices violate section 222(b) of the Act. The
   Bureau interpreted section 222(b) to apply only where a telecommunications
   carrier receives another carrier's proprietary information so that  the
   receiving carrier can provide a telecommunications service. The Bureau
   concluded that Verizon's actions, as the receiving carrier, did not
   violate section 222(b) because Verizon's role in the number porting
   process does not involve the provision of a "telecommunications service."
   Although number portability requires carrier-to-carrier coordination, it
   does not involve the provision of a carrier-to-carrier "telecommunications
   service."

   The Bureau further concluded that even assuming arguendo that section
   222(b) could be construed to refer to the submitting carrier's provision
   of "telecommunications service," section 222(b)'s marketing ban would not
   apply to Verizon's receipt of information from Comcast's and Bright
   House's affiliates because the record lacked evidence that those
   affiliates are, in fact, "telecommunications carriers." Comcast and Bright
   House pointed to their affiliates' state certificates and interconnection
   agreements, and to self-certifications during the proceeding that the
   affiliates are common carriers. However, the Bureau found that
   Complainants failed to show that the affiliates publicly hold themselves
   out as offering telecommunications indiscriminately to any and all
   potential customers.

   As I have said before, all consumers should enjoy the benefits of
   competition. Competition is the best protector of the consumer's interest
   and the best method of delivering the benefits of choice, innovation, and
   affordability to American consumers. Customer retention marketing is a
   form of aggressive competition that has the potential to benefit consumers
   through lower prices and expanded service offerings. Moreover, the cable
   companies engage in such practices to keep their video customers from
   switching to other providers. I am therefore disappointed that the
   Commission would prohibit these practices, which promote competition and
   benefit consumers and particularly disappointed that they would do so and
   prohibit practices from only one class of companies.

   I also fear that today's decision will have a negative impact on rural
   carriers and customers in rural America. Today's action rests in part on a
   questionable conclusion that Comcast's and Bright House's affiliates are
   "telecommunications carriers." This finding affords the affiliates the
   privileges of a "telecommunications carrier," including the right to
   interconnection, even though there is scant evidence that the affiliates
   have ever offered telecommunications to the public and no evidence that
   they have provided telecommunications to any entity other than Bright
   House and Comcast. This will bind our hands and have far-reaching
   consequences, particularly for small rural local exchange carriers around
   the country, such as Vermont Telephone Company, who may be forced to
   interconnect with similar entities that have no intention of providing
   telecommunications to the public or assuming the obligations of a
   "telecommunications carrier." For example, will such entities assume the
   obligations of "telecommunications carriers," such as the disabilities
   access requirements of section 255, the slamming requirements of section
   258, and the CALEA requirements?

   Part of the job of being a Commissioner is that you are required to make
   hard or difficult decisions and those decisions have implications for the
   entire industry. For example, what constitutes a "telecommunications
   carrier"?

   Here the majority wants to grant the Complaint but not really answer that
   question. They have avoided making a difficult decision by embracing the
   novel idea that a company can be classified as a carrier for a provision
   or even a subprovision of a statute but not another provision or
   subprovision of the very same statute. Naturally, they do so without
   citing any statutory basis or authority for such an inherently arbitrary
   approach. Yet they had no choice but to create such an argument if they
   were to find in favor of Comcast and Bright House.

   The majority's attempt to dodge the issue and deny the consequences of
   today's action by holding that we are determining that the Competitive
   Carriers are carriers for purposes of 222(b) based on the specific record
   and specific facts of this case but not for other purposes makes no sense
   and is not legally sustainable. A provider either is or is not a
   "telecommunications carrier." This "pick and choose, rule by rule"
   approach is the very height of arbitrary and capricious conduct by the
   Commission, and is a thinly veiled attempt by the majority to reach a
   desired result without accepting responsibility for the legal consequences
   of their action.

   Indeed if such an approach were possible it would allow industry players
   and the Commission to circumvent the entire statutory scheme applied by
   picking and choosing which provisions and subprovisions of the statute
   applied by classifying and declassifying carriers without any factual or
   statutory distinction or basis.

   Almost by definition this approach is arbitrary and capricious as it
   acknowledges that it does not want to be bound by the logic and legal
   rationale of the decision for any other purpose and preserves the
   flexibility to not apply the same statutory definition to any other aspect
   of the statute.

   It is indefensible to say that these entities are telecommunications
   carriers under one part of the Act and not others; the Act makes no such
   distinction. The majority attempts to find precedent to support its
   approach. However, that precedent should not apply because
   "telecommunications carrier" is a specific statutory definition. The
   majority's refusal to say that these entities are "telecommunications
   carriers" for all purposes shows that, clearly, their holding is outcome
   driven, advances regulatory arbitrage, and reflects a cavalier refusal to
   live with the legal consequences of their decision.

   In addition, this approach will bind our hands going forward, with broad
   implications for other rural carriers and consumers around the country,
   and will raise a host of questions. If these entities are
   "telecommunications carriers," as the majority holds today, I presume they
   are subject to the obligations of a "telecommunications carrier", such as
   the disabilities access requirements of section 255, the slamming
   requirements of section 258, and the CALEA requirements.

   Here, however, the majority is not providing regulatory consistency, nor
   are they providing certainty, except for the certainty of providing a
   competitive advantage to one type of service provider platform over other
   platforms. Thus, consumers will be treated differently based on the
   platform over which they receive service.

   In the past, some Commissioners have warned the Commission of the dangers
   of "inconsistent and arbitrary application" of the Commission's rules.
   Specifically, in concurring in the Commission's decision to uphold a Media
   Bureau denial of a set-top box waiver request, they stated that "[t]he
   result of these inconsistent decisions is that consumers will be treated
   differently, based on where they live and which MVPD they choose." I agree
   that "[a]ll market players deserve the certainty and regulatory
   even-handedness necessary to spark investment, speed competition, empower
   consumers, and make America a stronger player in the global economy." It
   is unfortunate that the majority did not follow that advice here.

   Indeed, the majority does not respond to Verizon's claims.

   Section 222(b) protects proprietary information of telecommunications
   carriers. But the supposedly proprietary information at issue here, if it
   did belong to the service provider, would belong to the complainants
   (cable VoIP providers), not the CLEC submitting the information to Verizon
   - indeed, the CLECs are not even complainants. And complainants here do
   not claim to be telecommunications carriers under the Act. The Commission
   cannot designate a cable VoIP provider a telecommunications carrier for
   purposes of extending privileges granted under section 222(b) without
   subjecting those carriers to the obligations set forth in Title II. There
   is a single definition of "telecommunications carrier" in the Act. The
   Commission never has and could not classify the same service as a
   "telecommunications service" - and thus the entity that provides the
   service as a "telecommunications carrier" - for the purposes of one
   provision but not another within the same statute. See Clark v. Martinez,
   543 U.S. 371, 378 (2005) (meaning of words in a statute cannot change with
   statute's application); cf. American Council on Educ. v. FCC, 451 F.3d
   226, 234 (D.C. Cir. 2006) (noting that CALEA's text is "more inclusive"
   than definition of "telecommunications carrier" in the Act). 

   I am also troubled about the impact of today's decision on our ability to
   promote regulatory parity. Last month, I proposed to my fellow
   Commissioners a Notice of Proposed Rulemaking (NPRM) that would initiate
   an inquiry into customer retention marketing practices, including how to
   ensure that such practices are treated consistently across all platforms
   used to provide voice, video, and broadband Internet service.

   I am concerned, however, that today's decision will preclude our ability
   to apply a consistent regulatory framework across platforms. Indeed, I
   anticipate that when the time comes, some of the same members of the
   majority will preserve today's competitive advantage for one industry over
   another by claiming that we lack statutory authority to establish such a
   consistent approach or regulatory level playing field. Despite the fact
   that the inconsistencies are a result of a novel interpretation of what
   can constitute a telecommunications carrier that they themselves
   established.

   Indeed, the action we take today to afford the affiliates the full
   benefits of a telecommunications carrier without the corresponding
   obligations, coupled with a potential lack of statutory authority to later
   impose those obligations, is in direct conflict with any stated intent to
   provide regulatory parity through the NPRM.

                                  STATEMENT OF

                        COMMISSIONER ROBERT M. McDOWELL

   Re: Bright House Networks, LLC, et al..Complainants v. Verizon California,
   Inc., et al., Defendants.

   American consumers deserve the benefits that come from robust competition,
   especially in the telecommunications marketplace. It is the FCC's mission
   to promote such consumer-friendly competition. Additionally, Congress has
   required that we protect consumer privacy. Section 222 of the
   Communications Act clearly prohibits carriers from using confidential
   customer information for marketing efforts. Consistent with Congress's
   intent and Commission precedent in the long-distance context, today we
   carry out Congress's unambiguous mandate to protect consumer privacy in
   local markets as well.

   Carriers are free to initiate customer retention marketing campaigns
   before a consumer gives the order to switch from his or her current phone
   service provider to a new provider. Under the law, carriers are also
   permitted to launch "win-back" campaigns after consumers have switched.
   Today's action underscores long-held Commission policy that using
   proprietary customer information for marketing efforts cannot take place
   during the window of time when a customer's phone number is being switched
   to a new provider.

   Our March, 2007, action granting the Time-Warner petition for declaratory
   ruling on interconnection with incumbent LECs held that cable and other
   VoIP providers must be able to use local phone numbers and be allowed to
   put calls through to other phone networks. Our action then was premised on
   the belief that we were working to increase meaningful competition in
   local telephone service. Similarly, today's action ensures that consumers
   in all areas of the country reap the benefits of competition in the form
   of lower prices, innovative services and more choice.

   Bright House Networks, LLC v. Verizon California, Inc., Recommended
   Decision, File No. EB-08-MD-002, 2008 WL 1722033 (Enf. Bur., rel. Apr. 11,
   2008) ("Recommended Decision"). See 47 C.F.R. S: 1.730(i) ("If parties to
   the proceeding file comments to the recommended decision, the Commission
   will issue its decision adopting or modifying the recommended decision
   within 30 days of the filing of the final comments.")

   Formal Complaint, File No. EB-08-MD-002 (filed Feb. 11, 2008)
   ("Complaint").

   47 U.S.C. S: 208.

   47 U.S.C. S: 222(b).

   47 U.S.C. S: 201(b). See Count III of the Complaint.

   Comments Challenging Recommended Decision, File No. EB-08-MD-002 (filed
   Apr. 28, 2008); Comments of Verizon in Support of Recommended Decision,
   File No. EB-08-MD-002 (filed May 13, 2008); Complainants' Reply Comments
   Challenging the Recommended Decision ("Reply Comments"), File No.
   EB-08-MD-008 (filed May 23, 2008).

   See, e.g., Joint Statement, File No. EB-08-MD-002 (filed Feb. 29, 2009)
   ("Joint Statement") at 3-4, P: 4. The Defendants are: Verizon California
   Inc.; Verizon Delaware LLC; Verizon Florida LLC; Contel of the South,
   Inc.; Verizon South Inc.; Verizon New England Inc.; Verizon Maryland Inc.;
   Verizon New Jersey Inc.; Verizon New York Inc.; Verizon Northwest Inc.;
   Verizon North Inc.; Verizon Pennsylvania Inc.; GTE Southwest Incorporated
   d/b/a Verizon Southwest; Verizon Virginia Inc.; and Verizon Washington,
   D.C. Inc. See, e.g., id. at 3-5, P:P: 4-5.

   See, e.g., Joint Statement at 2-3, P:P: 1-3; Complaint at 3-4, P:P: 2-3.
   Complainants provide their retail VoIP service through affiliated
   entities. See, e.g., Joint Statement at 1-3, P:P: 1-3. For convenience, we
   include those affiliates when we refer to "Complainants" herein.

   See, e.g., Joint Statement at 5, P: 6. The services provided by the
   Competitive Carriers to Complainants are similar, if not identical, to the
   wholesale services discussed in Time Warner Cable Request for Declaratory
   Ruling that Competitive Local Exchange Carriers May Obtain Interconnection
   Under Section 251 of the Communications Act, as Amended, to Provide
   Wholesale Telecommunications Services to VoIP Providers, Memorandum
   Opinion and Order, 22 FCC Rcd 3513 (Wireline Comp. Bur. 2007) ("Time
   Warner Wholesale Services Order").

   See, e.g., Joint Statement at 6, P:P: 8-9. As described below, each of the
   Comcast and Bright House Competitive Carriers has a state certificate and
   an interconnection agreement with Verizon. See Section III.D, infra.

   See, e.g., Joint Statement at 6, P:P: 7-9.

   See, e.g., 47 U.S.C. S: 251(b)(2); 47 U.S.C. S: 153(30) (providing that
   "number portability" means the ability of users of telecommunications
   services to retain, at the same location, existing telecommunications
   numbers without impairment of quality, reliability, or convenience when
   switching from one telecommunications carrier to another). See also 47
   C.F.R. S:S: 52.11, 52.21-26.

   See, e.g., Complaint at 8, P: 10, and at Ex. E;  Answer of Verizon, File
   No. EB-08-MD-002 (filed Feb. 21, 2008) ("Answer") at Exs. 22-27; In the
   Matter of Telephone Number Portability,  Second Report and Order, 12 FCC
   Rcd 12281, 12315-16 at P:P: 55-56 (1997).

   See, e.g.,  Joint Statement at 9, P: 20. The Competitive Carrier may
   submit the LSR directly to Verizon, or through a contractor. Id.

   See, e.g., Joint Statement at 9, P: 18.

   See, e.g., Joint Statement at 11, P: 25. As the parties aptly indicate,
   "[w]hen a customer migrates from one provider to another, it is important
   that the retail service being provided by the old service provider be
   terminated contemporaneously with the establishment of new service. This
   ensures that the customer is not left without service for any significant
   period of time and does not wind up being required to pay two providers
   for duplicative service." Id.

   See, e.g., Joint Statement at 9, P: 20.

   The Number Portability Administration Center, or NPAC, was created to
   support the implementation of local number portability by operating
   regional number portability databases. See generally www.npac.com.

   See, e.g., Joint Statement at 11, P: 28.

   See, e.g., Joint Statement at 10, P: 23.

   See, e.g., Joint Statement at 10, P: 24.

   See, e.g., Joint Statement at 12, P: 29. The submission of an LSR by the
   Competitive Carrier notifying Verizon of the porting of a Verizon
   customer's number is the only submission that is required (and, typically,
   the only communication that is received) to generate a disconnect order
   within Verizon's internal systems. Supplemental Joint Statement, File No.
   EB-08-MD-002 (filed Mar. 5, 2008) ("Supp. Joint Statement") at 2, P: 1.

   See, e.g., Joint Statement at 12-13, P:P: 30-31. Use of 10-digit triggers
   is routine in the industry, but it is not required by industry process
   flows, which permit coordinated migration as an alternative. Id. at 13, P:
   31.

   See, e.g., Joint Statement at 13, P: 32. This "confirmation" step is
   permitted, but not required, by industry process flows. Id. Additional
   work steps that Verizon undertakes include: physically disconnecting the
   wire serving the customer from the frame in the central office; using a
   service order to deliver information to the E911 database to unlock the
   customer's record so that it can be modified by the new carrier;
   implementing any requested changes to the retail customer's directory
   listing; and, after service is disconnected, informing the billing systems
   to cease billing for service. Id. at 12, P: 29.

   See, e.g., Joint Statement at 11-12, P: 28.

   See, e.g., Joint Statement at 14-17, P:P: 35-45.

   See, e.g., Joint Statement at 15, P:P: 37-38. The record contains no
   specific reference to how frequently the lead list is developed. Given the
   nature of the retention marketing program, however, it is reasonable to
   infer that the lead list is generated on approximately a daily basis.

   See, e.g., Joint Statement at 15, P: 37; Supp. Joint Statement at 2, P: 1
   (stating that Verizon's retention marketing lead list is generated from
   disconnect orders, including disconnect orders that are generated as a
   result of receiving LSRs). Of course, disconnect orders may stem from
   circumstances other than an LSR, such as a customer move out of the local
   service area. See, e.g., Reply Brief of Verizon, File No. EB-08-MD-002
   (filed Mar. 14, 2008) at 1.

   See, e.g.,  Joint Statement at 15, P: 37. Toward that end, Verizon
   eliminates from the lead list customers who (i) are switching to a service
   provider that is either a Verizon wholesale customer (such as a reseller
   of Verizon service or a customer of Verizon's Wholesale Advantage product)
   or a Verizon affiliate (e.g., Verizon Wireless), or (ii) contacted Verizon
   directly to terminate service. Verizon also excludes those disconnecting
   customers who are on do-not-call, do-not-solicit, do-not-mail, or
   do-not-email lists. Id.

   Answer at 10, P: 20. The record reveals no other means by which Verizon
   could identify and eliminate customers who are not switching their phone
   service to a facilities-based competitor.

   See, e.g., Joint Statement at 15-16, P:P: 39-40.

   See, e.g., Joint Statement at 16, P: 41. Any marketing that Verizon
   conducts after the number port and disconnect of Verizon service have
   occurred is not at issue here. See, e.g.,  Complaint at 13-14; Answer at
   1.

   Joint Statement at 17, P: 44.

   Joint Statement at 17, P: 45.

   47 U.S.C. S: 222(b). The Complaint also alleges that Verizon's customer
   retention marketing practices violate sections 222(a) and 201(b) of the
   Act. See, e.g., Complaint at 28-31 (citing 47 U.S.C. S:S: 222(a), 201(b)).
   Because Complainants prevail on their claim under section 222(b), and that
   victory will afford Complainants all the relief to which they would be
   entitled under sections 222(a) and 201(b), we need not and do not reach
   their claims under sections 222(a) and 201(b). Accordingly, we dismiss
   those claims (i.e.,  Counts II and III) without prejudice.

   Complaint at 31, P: 59 (asking the Commission to "enjoin Verizon from
   continuing its retention marketing based on carrier change information").
   In the context of section 222(b) of the Act, the Commission generally
   labels as "retention marketing" any marketing to a customer by the
   customer's existing provider that occurs while the
   carrier-change/number-porting request applicable to that customer is
   pending; the Commission generally labels as "winback marketing" any
   marketing to a customer by the customer's former provider that occurs
   after the carrier-change/number-porting request applicable to that
   customer has been effectuated. See, e.g., In the Matter of
   Telecommunications Carriers' Use of Customer Proprietary Network
   Information and Other Customer Information,  Order on Reconsideration and
   Petitions for Forbearance, 14 FCC Rcd 14409, 14443-4, P: 65 (1999) ("CPNI
   Reconsideration Order"). The Complaint challenges only Verizon's retention
   marketing, and only Verizon's retention marketing that stems, directly or
   indirectly, from the submission of an LSR. See, e.g., Complaint at 14.
   Thus, this Order applies only to such retention marketing, and not to any
   winback marketing.

   Complaint at 31, P: 59 (citing 47 C.F.R. S: 1.722(d)).

   Pursuant to section 1.730 of the Commission's rules, at the Complainants'
   request, the Enforcement Bureau accepted the Complaint on the Commission's
   Accelerated Docket. 47 C.F.R. S: 1.730. See Complaint at Ex. T.

   47 U.S.C. S: 222(b).

   47 U.S.C. S: 222(b).

   See, e.g., Complaint at Ex. A, P: 7, Ex. E P: 6.

   See, e.g., CPNI Reconsideration Order, 14 FCC Rcd at 14449, P: 78 (1999)
   ("[C]arrier change information is carrier proprietary information under
   section 222(b)."); Implementation of the Subscriber Carrier Selection
   Changes Provisions of the Telecommunications Act of 1996; Policies and
   Rules Concerning Unauthorized Changes of Consumers Long Distance Carriers,
   Second Report and Order and Further Notice of Proposed Rulemaking, 14 FCC
   Rcd 1508, 1572, P: 106 (1998) ("1998 Slamming Order") ("[C]arrier change
   information is carrier proprietary information and, therefore, pursuant to
   section 222(b), the executing carrier is prohibited from using such
   information to attempt to change the subscriber's decision to switch to
   another carrier.").

   CPNI Reconsideration Order, 14 FCC Rcd at 14449-50, P: 77.

   Verizon contends that a different process not involving the transmission
   of carrier-change information to Verizon could have been established, see,
   e.g.,  Answer at 7, but the existence of that hypothetical alternative has
   no bearing on the legal requirements applicable to the processes currently
   in place.

   See, e.g.,  Answer at 37-38, 43-44, 48-50; Comments of Verizon in Support
   of Recommended Decision at 19-20.

   See, e.g.,  Answer at 16 (explaining that Verizon instructs its customer
   retention marketing representatives to refrain from looking at the name of
   the new carrier or mentioning the name of the new carrier to the target
   customer); 43 ("assuming for the sake of argument that the identity of the
   winning carrier is proprietary information").

   See Section III.C, infra.

   See, e.g.,  Answer at 45, 49-50; Comments of Verizon in Support of
   Recommended Decision at 20.

   See, e.g., CPNI Reconsideration Order, 14 FCC Rcd at 14450, P: 79 (holding
   that "section 222(b) is not violated if the carrier has independently
   learned from its retail operation that a customer is switching to another
   carrier"); In the Matter of Implementation of the Telecommunications Act
   of 1996: Telecommunications Carriers' Use of Customer Proprietary Network
   Information and Other Customer Information,  Third Report and Order and
   Third Further Notice of Proposed Rulemaking, 17 FCC Rcd 14860, 14917, P:
   131 and n.302 (2002) ("CPNI 3rd Report & Order") (recognizing that "a
   carrier's retail operations may, without using information obtained in
   violation of section 222(b), legitimately obtain notice that a customer
   plans to switch to another carrier," but noting that "such instances are
   the exception, not the rule").

   In this vein, Verizon states: "Complainants are left to argue that, if a
   consumer calls to cancel service, retention marketing is permitted and
   beneficial, but that, if the customer authorizes a service provider to
   cancel on his or her behalf, retention marketing is prohibited and
   harmful. That nonsensical distinction finds no support in the Act or the
   Commission's rules and is so irrational as to render the restriction ...
   an unconstitutional restriction on Verizon's speech." Opening Brief of
   Verizon, File No. EB-08-MD-002 (filed Mar. 12, 2008) at 1. Yet the
   Commission plainly made that distinction in prior orders, and neither
   Verizon nor anyone else challenged it as "nonsensical" or "irrational."
   Indeed, we are not aware of any carrier, including Verizon prior to the
   summer of 2007, acting contrary to that distinction.

   See, e.g., 1998 Slamming Order,  14 FCC Rcd at 1510, P: 1.

   Id. at 1572-73, P: 106.

   See, e.g.,  Opening Brief of Verizon at 5; Answer at 42.

   We note that none of the Complainants claims to be a "telecommunications
   carrier" within the meaning of section 222(b).

   We emphasize that these are assumptions, not conclusions.

   See, e.g., Joint Statement at 5-6; Complaint at 7-9.  See also In the
   Matter of Telephone Number Requirements for IP-Enabled Services Providers,
   Report and Order, Declaratory Ruling, Order on Remand, and Notice of
   Proposed Rulemaking, 22 FCC Rcd 19531 (2007) ("VoIP LNP Order and
   Declaratory Ruling") (observing in a closely analogous context that
   interconnected VoIP providers and wholesale interconnection providers work
   in partnership to provide competitive voice services to end-users); Time
   Warner Wholesale Services Order, supra (same point as VoIP LNP Order and
   Declaratory Ruling).

   See Section III.D, infra.

   Verizon cursorily asserts that, if the LSR's carrier-change information is
   deemed to be proprietary to the Competitive Carriers, then the
   Complainants lack standing to prosecute this Complaint. Opening Brief of
   Verizon at 5-6. Verizon's assertion overlooks the last sentence of section
   208, which provides that "[n]o complaint shall at any time be dismissed
   because of the absence of direct damage to the complainant." 47 U.S.C. S:
   208. At a minimum, Complainants have clearly experienced indirect damage
   from Verizon's customer retention marketing program, even if each
   Complainant is not a "carrier" whose proprietary information is protected
   by section 222(b). Thus, Complainants have standing under section 208 to
   obtain a ruling regarding the lawfulness of Verizon's conduct. Whether
   Complainants also have standing to obtain a ruling awarding monetary
   damages to them is a question we need not reach unless and until they file
   a supplemental complaint for damages pursuant to 47 C.F.R. S: 1.722.

   47 U.S.C. S: 222(b).

   See, e.g., Joint Statement at 23, P: 68 ("Complainants assert that one
   legal issue is whether provision of `telecommunication service' by the
   Competitive Carriers, but not by Verizon, constitutes `providing any
   telecommunications service' within the meaning of section 222(b).
   Defendants assert that one legal issue is whether provision of
   `telecommunications service' by a carrier that submits information . . .
   implicates section 222(b)"); Comments of Verizon in Support of Recommended
   Decision at 11-14.

   Implementation of the Subscriber Carrier Selection Changes Provisions of
   the Telecommunications Act of 1996; Policies and Rules Concerning
   Unauthorized Changes of Consumers' Long Distance Carriers, Third Order on
   Reconsideration and Second Further Notice of Proposed Rulemaking, 18 FCC
   Rcd 5099, 5109-10, P: 25 (2003) ("Third Slamming Reconsideration Order")
   (emphasis added).

   1998 Slamming Order, 14 FCC Rcd at 1572, 1575-76, P:P: 106, 109 (stating
   that section 222(b) "promotes competition and protects consumer choices by
   prohibiting executing carriers from using information gained solely from
   the carrier change transaction to thwart competition by using the carrier
   proprietary information of the submitting carrier to market the submitting
   carrier's subscribers"); CPNI Reconsideration Order, 14 FCC Rcd at
   14449-50, P: 77 (stating that "competition is harmed if any carrier uses
   carrier-to-carrier information . . . to trigger retention marketing
   campaigns"); P: 78 (stating that "where a carrier exploits advance notice
   of a customer change by virtue of its status as the underlying
   network-facilities or service provider to market to that provider, it does
   so in violation of section 222(b)"); CPNI 3rd Report & Order,  17 FCC Rcd
   at 14918-19, P:P: 131, 134; Third Slamming Reconsideration Order,  18 FCC
   Rcd at 5110, P: 26 (accepting the view that "Congress intended by the
   express terms of section 222(b) to prevent carriers from using information
   obtained from another to be used for the carrier's own marketing efforts
   against the submitting carrier"); P: 28 (stating that "carrier change
   request information transmitted to executing carriers in order to
   effectuate a carrier change cannot be used for any purpose other than to
   provide the service requested by the submitting carrier").

   1998 Slamming Order, 14 FCC Rcd at 1575, P: 106 (stating that "when an
   executing carrier receives a carrier change request, section 222(b)
   prohibits the executing carrier from using that information to market
   services to that consumer"); CPNI Reconsideration Order, 14 FCC Rcd at
   14449-50, P:P: 77-79 (stating that a carrier that exploits advance notice
   of a customer change violates section 222(b)); CPNI 3rd Report & Order, 
   17 FCC Rcd at 14917, P: 131 (stating that a carrier that receives carrier
   change information in its role as executing carrier is prohibited from
   using that information to attempt to change the subscriber's decision);
   Third Slamming Reconsideration Order,  18 FCC Rcd at 5110, P: 28 (stating
   that carrier change information provided in order to execute carrier
   change cannot be used for any other purpose).

   See, e.g., Answer at 39; Comments of Verizon in Support of Recommended
   Decision at 12-13.

   Comments of Verizon in Support of Recommended Decision at 11-14.

   See, e.g.,  Answer at 2-3, 37, 40, 51; Opening Brief of Verizon at 4.

   1998 Slamming Order,  14 FCC Rcd  at 1572-73, P:106; CPNI Reconsideration
   Order, 14 FCC Rcd at 14450, P:P: 78-79.

   See, e.g., Promotion of Competitive Networks in Local Telecommunications
   Markets,  Report and Order, 23 FCC Rcd 5385 (2008) at P: 2 (noting that
   1996 Telecommunications Act was designed to eliminate barriers to
   facilities-based competition); In the Matter of Unbundled Access to
   Network Elements, Order on Remand, 20 FCC Rcd 2533, 2535, P: 3 (2005)
   (subsequent history omitted) (adopting rules intended to "spread the
   benefits of facilities-based competition to all consumers"); In the Matter
   of Review of the Section 251 Unbundling Obligations of Incumbent Local
   Exchange Carriers,  Report and Order on Remand and Further Notice of
   Proposed Rulemaking, 18 FCC Rcd 16978, 17025, P: 70 (2003) (noting that
   facilities-based competition serves the Act's overall goals) (subsequent
   history omitted); In the Matter of Performance Measurements and Standards
   for Unbundled Network Elements and Interconnection, Notice of Proposed
   Rulemaking, 16 FCC Rcd 20641, 20644-45, P: 5 (2001) (subsequent history
   omitted) (stating that "facilities-based competition, of the three methods
   of entry mandated by the Act, is most likely to bring consumers the
   benefits of competition in the long run"); Time Warner Wholesale Services
   Order, 22 FCC Rcd at 3519, P: 13 (referring to Commission's goal of
   promoting facilities-based competition).

   See, e.g.,  Answer at 42, Opening Brief of Verizon at 5-6.

   In any event, contrary to Verizon's suggestion, the LSR's information is
   related to the Competitive Carriers' transmission services: the
   information is critical to Complainants' acquisition of a new customer,
   which, in turn, drives Complainants' purchase of the Competitive Carriers'
   telecommunications service.

   Answer at 38-39.

   Implementation of the Non-Accounting Safeguards of Sections 271 and 272 of
   the Communications Act of 1934, as Amended, First Report and Order and
   Further Notice of Proposed Rulemaking, 11 FCC Rcd 21905, 21958 P: 107
   (1996); see also, e.g., Beehive Telephone v. The Bell Operating Companies,
   Memorandum Opinion and Order, 10 FCC Rcd 10562, 10566 P: 21 (1995); AT&T
   Corp. Petition for Declaratory Ruling Regarding Enhanced Prepaid Calling
   Card Services, Regulation of Prepaid Calling Card Services, Order and
   Notice of Proposed Rulemaking, 20 FCC Rcd 4826, 4831 P: 16 & n. 28 (2005);
   Federal-State Joint Board on Universal Service, Appeal of Administrator's
   Decision, Radiant Telecom, Inc., Order, 22 FCC Rcd 11811, 11813-14 P: 9
   (WCB 2007).

   Local Exchange Carriers' Rates, Terms, and Conditions for Expanded
   Interconnection Through Physical Collocation for Special Access and
   Switched Transport, Second Report and Order, 12 FCC Rcd 18730, 18744 P:
   20.

   Detariffing Billing and Collection Services, Report and Order, 102 FCC2d
   1150, 1167-69 P: 31 (1986).

   Policies and Rules Concerning Local Exchange Carrier Validation and
   Billing Information for Joint Use Calling Cards, Report and Order and
   Request for Supplemental Comment, 7 FCC Rcd 3528, 3531 P: 19 (1992).

   Complainants' Supplemental Reply Brief at 2; Complainants' Reply at 36-38;
   Complaint at P:P: 40-41.

   Further Supplemental Joint Statement, File No. EB-0-MD-002 (filed Mar. 10,
   2008) at P: 2.a.

   Verizon argues: "That Verizon includes in its lead list disconnecting
   customers who are porting their numbers to another service provider does
   not mean that Verizon is using another carrier's proprietary information.
   Verizon seeks to reach out to customers who have not spoken with a Verizon
   representative - and who are leaving Verizon's network - to ensure that
   they are informed about Verizon's competitive pricing and retention
   offers; Verizon assembles its lead list with that goal." Answer at 44. The
   point is that Verizon would not know which customers to reach with its
   retention marketing but for its use of the LSRs' proprietary information.

   See, e.g., Answer at 37-38, 43-44, 48-50; Comments of Verizon in Support
   of Recommended Decision at 21-24.

   See, e.g., Answer at 14; Joint Statement at 15, P: 37.

   See, e.g., Answer at 16, 45-46.

   Answer at 22-24, 42-43; Verizon Response to Supplemental Statements of
   Comcast and BHN, File No. EB-08-MD-002 (filed Mar. 12, 2008) ("Verizon's
   3/12 Response"); Comments of Verizon in Support of Recommended Decision at
   35-39. Verizon does not dispute that Sprint provides "telecommunications
   service" to Time Warner. Id.

   The Act provides that "[t]he term `telecommunications' means the
   transmission, between or among points specified by the user, of
   information of the user's choosing, without change in the form or content
   of the information as sent and received." 47 U.S.C. S: 153(43).

   The Act provides, in pertinent part, that "[t]he term `telecommunications
   carrier' means any provider of telecommunications services." 47 U.S.C. S:
   153(44).

   The Act provides that "[t]he term `telecommunications service' means the
   offering of telecommunications for a fee directly to the public, or to
   such classes of users as to be effectively available directly to the
   public, regardless of the facilities used." 47 U.S.C. S: 153(46).

   See, e.g., Virgin Islands Telephone Corp. v. FCC, 198 F.3d 921 (D.C. Cir.
   1999) (affirming the Commission's use of the "common carrier" test in
   National Association of Regulatory Utility Commissioners v. FCC, 525 F.2d
   630 (D.C. Cir. 1976) ("NARUC I") to help ascertain the meaning of the term
   "telecommunications service" in 47 U.S.C. S: 153(46)).

   47 U.S.C. S: 153(46).

   See, e.g., United States Telecom Ass'n. v. FCC, 295 F.3d 1326 (D.C. Cir.
   2002); Southwestern Bell Telephone Co. v. FCC, 19 F.3d 1475 (D.C. Cir.
   1994); National Association of Regulatory Utility Commissioners v. FCC,
   533 F.2d 601 (D.C. Cir. 1976) ("NARUC II"); NARUC I, supra.

   See, e.g., Supplemental Affidavit of Susan Jin Davis, File No.
   EB-08-MD-002 (filed Mar. 10, 2008) ("Supp. Davis Aff.") at P:P: 5, 7;
   Second Affidavit of Marva B. Johnson, File No. EB-08-MD-002 (filed Mar.
   10, 2008) ("Supp. Johnson Aff.") at P:P: 8-9.

   See, e.g., 47 U.S.C. S:S: 201, 202, 208, 254. Perhaps that is why we know
   of no case in which a provider has chosen to act as a common carrier and
   yet ultimately has been found not to meet the test.

   See, e.g., Complaint at Ex. B, P:P: 8-27; Ex. E at P: 2. See also VoIP LNP
   Order and Declaratory Ruling, 22 FCC Rcd at 19542, P: 20 n.62 (stating
   that, although the Commission has not determined whether interconnected
   VoIP service should be classified as a telecommunications service, and
   although only telecommunications carriers are entitled to obtain direct
   access to numbering resources, "[t]o the extent that an interconnected
   VoIP provider is licensed or certificated as a carrier, that carrier is
   eligible to obtain numbering resources directly from NANPA, subject to all
   relevant rules and procedures applicable to carriers").

   See, e.g., Complaint at Ex. B, P:P: 45-61; Ex. E at P: 3.

   Answer at 22-24, 42-43;Verizon's 3/12 Response at 3-6.  Verizon also
   contends that we should disregard any factual evidence on this subject not
   filed with the Complaint. Verizon's 3/12 Response at 1-2. Verizon's
   contention lacks merit, because the only "new" facts on which we rely here
   - the nature of the potential customer base, and the "self-certification"
   as common carriers - were suggested by the Complaint itself, and are not
   complex. Thus, Verizon has had an adequate opportunity to respond.
   Accordingly, to the extent that our rules require those facts to be
   alleged more clearly in the Complaint, we waive those rules for good cause
   shown. See 47 C.F.R. S:S: 1.3, 1.721, 1.726.

   See NARUC I, 525 F.2d at 608.

   As mentioned previously, "[o]ne may be a common carrier though the nature
   of the service rendered is sufficiently specialized as to be of possible
   use to only a fraction of the total population." NARUC I, 525 F.2d at 608.
   This undermines the probative value of the fact that the Comcast and
   Bright House Competitive Carriers presently serve only their affiliates.
   Given the nature of their services, it could well be that there are only a
   few potential customers other than their affiliates.

   See generally Hyperion Telecommunications, Inc. Petition Requesting
   Forbearance, Memorandum Opinion and Order and Notice of Proposed
   Rulemaking, 12 FCC Rcd 8596 (1997) (subsequent history omitted); Time
   Warner Wholesale Services Order, supra.

   See generally Consolidated Communications of Fort Bend Co. v. Public
   Utility Commission of Texas, 497 F.Supp.2d 836 (W.D. Tex. 2007) (holding
   that Sprint's provision of service similar, if not identical, to the
   service at issue here was "telecommunications service," despite the
   absence of a state tariff).

   The segment of the "public" to which the Comcast and Bright House
   Competitive Carriers seek to provide telecommunications consists of
   sophisticated entities - other carriers - knowledgeable about state
   regulatory processes and the ramifications of state certificates and
   interconnection agreements. See, e.g.,Supp. Davis Aff. at P: 5; Supp.
   Johnson Aff. at P: 9.  We note that, had the Comcast and Bright House
   Competitive Carriers simply posted on their websites some indication of
   the general availability of the telecommunications they provide to their
   affiliates, Verizon might not have challenged their status as
   "telecommunications carriers." See generally Appropriate Framework for
   Broadband Access to the Internet Over Wireline Facilities, Report and
   Order and Notice of Proposed Rulemaking, 20 FCC Rcd 14853, 14901, P: 90
   (2005) (subsequent history omitted) (holding that wireline broadband
   providers that choose to offer the transmission component of a wireline
   broadband Internet access service as a telecommunications service may do
   so without filing tariffs setting forth the rates, terms, and conditions
   under which they will provide that transmission, but only if the providers
   "include those rates, terms, and conditions in generally available
   offerings posted on their websites").

   Verizon entered into interconnection agreements with the Comcast and
   Bright House Competitive Carriers, which Verizon is statutorily obligated
   to do only with "telecommunications carriers," and these agreements were
   approved by the state commissions, and made public, pursuant to section
   252 of the Act. See, e.g., 47 U.S.C S:S: 251(a)(1), 251(c)(2), 252(a);
   Complaint at Ex. B, P:P: 45-61; Ex. E at P: 3. We also note that Verizon
   did not draw any distinctions between the services provided to Time Warner
   by Sprint - which Verizon admits is a telecommunications carrier - and
   those provided to Comcast and Bright House by the Comcast and Bright House
   Competitive Carriers. See, e.g., Complaint at Ex. B, P: 7, Ex. E at 1-2;
   Bright House Supplemental Statement, File No. EB-08-MD-002 (filed Mar. 10,
   2008) at 3, Ex. 1 at 2-4.

   Abbott Laboratories v. Young, 920 F.2d 984, 987 (D.C. Cir. 1990); see
   Common Cause v. Federal Election Commission, 842 F.2d 436, 441 (D.C. Cir.
   1988) (upholding agency decision to interpret the same term - "name" -
   differently in two Federal Election Campaign Act provisions). 

   Goldstein v. Securities and Exchange Commission, 451 F.3d 873, 878 (D.C.
   Cir. 2006). 

   Declaration of Jeffrey Eisenach, File No. EB-08-MD-002 (filed Feb. 29,
   2008).

   See, e.g., Answer at 56-58; Opening Brief of Verizon at 7-9; Comments of
   Verizon in Support of Recommended Decision at 24-29. Verizon points out,
   and Complainants acknowledge, that Complainants typically require
   customers to contact them directly to cancel video or broadband Internet
   access service; and when customers do so, Complainants offer incentives to
   remain customers in some instances. Letter from Matthew A. Brill to
   Marlene Dortch, Secretary, Federal Communications Commission, File No.
   EB-08-MD-002 (filed Mar. 6, 2008). In Verizon's view, because Complainants
   are allowed to engage in such retention marketing of their video and
   Internet services, Verizon should be allowed to engage in retention
   marketing of its voice service.

   See 1998 Slamming Order, 14 FCC Rcd at 1572, 1575-76, P:P: 106, 109; CPNI
   Reconsideration Order, 14 FCC Rcd at 14449-50, P: 77; CPNI 3rd Report &
   Order,  17 FCC Rcd at 14918-19, P: 134; Third Slamming Reconsideration
   Order,  18 FCC Rcd at 5110, P: 28. For just one example, the Commission
   has already acknowledged what Verizon's economist principally asserts -
   that in the short term retention marketing may benefit some consumers.
   CPNI Reconsideration Order, 14 FCC Rcd at 14452-53, P:P: 84-85. The
   Commission went on to hold, nevertheless, that retention marketing's
   long-term harm to competition in the market as a whole outweighs any
   short-term benefits to individuals. Id. Moreover, Verizon's economist
   simply assumes, with no support, that material competition in the
   residential voice market would continue to exist despite the barriers to
   competition that retention marketing would entail.

   Verizon has not identified any analogue to section 222 in Title I or Title
   VI or any other part of the Act.

   Opening Brief of Verizon at 9. See, e.g., Comments of Verizon in Support
   of Recommended Decision at 30-31.

   Opening Brief of Verizon at 10.

   Opening Brief of Verizon at 9 (citing Central Hudson Gas & Elec. Corp. v.
   Public Serv. Comm'n, 447 U.S. 557 (1980)).

   1998 Slamming Order, 14 FCC Rcd at 1573-75, P:P: 107-111.

   47 U.S.C. S:S: 154(i), 154(j), 201(b), 208, 222, and 303(r).

   47 C.F.R. S:S: 1.720-1.736.

   47 U.S.C. S:S: 154(i), 154(j), 201(b), 208, 222, and 303(r).

   47 C.F.R. S:S: 1.720-1.736.

   In the Matter of Bright House Networks, LLC, et al. v. Verizon California,
   Inc., et al., File No. EB-08-MD-002, Recommended Decision, DA 08-860 (EB
   rel. Apr. 11, 2008) (Recommended Decision).

   Joint Statement of Commissioners Robert M. McDowell and Jonathan S.
   Adelstein Concurring, Comcast Corporation Request for Waiver of Section
   76.1204(a)(1) of the Commission's Rules, CSR-7012-Z, Implementation of
   Section 304 of the Telecommunications Act of 1996: Commercial Availability
   of Navigation Devices: Application for Review, CS Docket No. 97-80,
   Memorandum Opinion and Order, 22 FCC Rcd 17113 (2007).

   Statement of Commissioner Robert M. McDowell, Appropriate Regulatory
   Treatment for Broadband Access to the Internet Over Wireless Networks, WT
   Docket No. 07-53, Declaratory Ruling, 22 FCC Rcd 5901 (2007).

   Letter from Aaron M. Panner, Counsel to Verizon, to Marlene H. Dortch,
   Secretary, FCC, File No. EB-08-MD-002, at 1 (filed June 20, 2008).

   (Continued from previous page)

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   Federal Communications Commission FCC 08-159

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   Federal Communications Commission FCC 08-159