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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
AT&T Corp., )
) File No. EB-00-MD-011
Complainant, )
v. )
)
New York Telephone Company, )
d/b/a Bell Atlantic - New York, )
Defendant.
MEMORANDUM OPINION AND ORDER
Adopted: October 5, 2000 Released: October
6, 2000
By the Commission: Chairman Kennard and Commissioner Ness
issuing separate statements
I. INTRODUCTION
1. In this Memorandum Opinion and Order, we deny the
complaint filed pursuant to sections 208 and 271(d)(6) of the
Communications Act of 1934, as amended (Act),1 by AT&T Corp.
(AT&T) against New York Telephone Company, d/b/a Bell Atlantic -
New York (Bell Atlantic). Pursuant to section 271(d)(3) of the
Act, this Commission has previously authorized Bell Atlantic to
provide interexchange services in the State of New York. In its
complaint, AT&T alleges that the manner in which Bell Atlantic
markets the services of its long distance affiliate, Bell
Atlantic Communications, Inc. (BACI), during incoming calls from
its existing local exchange customers violates section 272 of the
Act.2 For the reasons discussed below, we find that AT&T
misstates Bell Atlantic's obligations pursuant to section 272,
and deny AT&T's complaint.
II. BACKGROUND
2. Complainant AT&T provides interexchange (i.e., long
distance) telecommunications services throughout the United
States. It also provides local exchange telecommunications
services in the State of New York and elsewhere. Defendant Bell
Atlantic is a ``Bell Operating Company'' (BOC) within the meaning
of section 153(4) of the Act, 3 and an ``incumbent local exchange
carrier'' (ILEC) within the meaning of section 251(h)(1) of the
Act.4
3. On December 22, 1999, the Commission released an order
finding that Bell Atlantic had satisfied the conditions set forth
in section 271, and that it therefore was permitted, through a
separate affiliate complying with the requirements of section
272, to provide in-region, interexchange services in the State of
New York.5 Pursuant to section 272(g),6 which authorizes BOCs
that have been granted section 271 authority to market jointly
their own services and the services of their section 272 long
distance affiliate, Bell Atlantic began marketing the services of
BACI on January 5, 2000.7 This complaint relates to those joint
marketing efforts in the State of New York.
4. When residential local exchange customers of Bell
Atlantic call Bell Atlantic to request an additional line, Bell
Atlantic generally takes the opportunity to market BACI's
interexchange service. With certain exceptions not relevant
here,8 Bell Atlantic does not require that its sales
representatives, in marketing BACI's services during such calls:
(a) inform the customer that they have a choice of long distance
carrier; or (b) offer to read a list of carriers who provide long
distance service in that customer's area.9 In addition, Bell
Atlantic allows its sales representatives, on receiving these
customers' verbal permission, to use information regarding the
customer's presubscribed interexchange carrier (PIC) for the
existing line(s) to market BACI's services for the additional
and, sometimes, existing line(s).10 Bell Atlantic does not
provide its customers' PIC information to AT&T or other non-
affiliated carriers in such instances.11
5. AT&T filed its complaint in this action on July 10,
2000. In its first claim, AT&T asserts that Bell Atlantic's
marketing of BACI's services to Bell Atlantic's existing local
exchange customers who telephone Bell Atlantic to request an
additional line, without informing those customers that they have
a choice of long distance carriers and offering to read a list of
such carriers, violates section 272 of the Act.12 In its second
claim, AT&T asserts that Bell Atlantic's use of its customers'
PIC information to market BACI's services during calls from such
customers violates the anti-discrimination requirements of
section 272(c),13 because Bell Atlantic does not make that
information available to other carriers.14
III. DISCUSSION
6. As discussed below, we deny both of AT&T's claims. We
deny AT&T's first claim because Bell Atlantic is not required
under current law to inform its existing customers telephoning to
request an additional line that they have a choice of long
distance carriers, or to offer to read a list of such carriers.
That obligation applies only to inbound (i.e., incoming) calls
from customers receiving new service. We deny AT&T's second
claim because section 272(c) does not require that, when BOCs use
information regarding their customer's PIC to joint market their
long distance affiliate's services to the customer, the BOCs must
make that information available to other carriers.
A. Section 272 of the Act Does Not Require Bell Atlantic to
Inform Its Existing Local Exchange Customers Who Request
Additional Lines That They Have a Choice of Long Distance
Carriers or to Offer to Read a List of Such Carriers.
7. Under section 272(a) and (b) of the Act, a BOC that has
obtained authorization pursuant to section 271 to provide
interexchange services may do so only through a separate
affiliate.15 Moreover, ``[i]n its dealings with its [section
272] affiliate ..., a [BOC] ... may not discriminate between that
company or affiliate and any other entity in the provision ... of
... services ...''.16 According to section 272(g)(3), however,
``the joint marketing and sale of services permitted under this
subsection shall not be considered to violate the
nondiscrimination provisions of subsection (c).''17 The joint
marketing ``permitted under this subsection'' occurs when a BOC
``market[s] or sell[s] interLATA [i.e., interexchange] service
provided by an affiliate'' after the BOC obtains authorization to
provide such service under section 271.18 In rejecting AT&T's
challenge to the FCC's grant of section 271 authority to Bell
Atlantic in New York, the United States Court of Appeals for the
District of Columbia Circuit recently held that section 272(g)
``exempt[s] joint marketing activities from section 272(c)(1)'s
nondiscrimination requirement.''19
8. AT&T's complaint focuses on the scope of the exemption
created by section 272(g). In its first claim, AT&T asserts that
the only joint marketing permitted under section 272(g), when
read in conjunction with the anti-discrimination provision of
section 272(c), is joint marketing that comports with the equal
access obligations of section 251(g). AT&T states, ``Section
272(g)(3) creates a narrow safe harbor for a quite specific
subset of discriminatory marketing ... . The only discriminatory
marketing activities that Congress exempted from the
nondiscrimination obligations [of section 272(c)] are those that
are expressly `permitted' by section 272(g) ... . [T]he only
joint marketing activities that are permitted under section
272(g) are those in which the BOC complies with the longstanding
[section 251(g)] equal access requirements of, inter alia
informing customers that they have a choice of long distance
carrier...''.20
9. For purposes of this order, we will assume, without
deciding, that the only joint marketing permitted under section
272 is joint marketing that comports with section 251(g). We
decline AT&T's invitation to adopt its theory of the obligations
imposed by sections 272 and 251(g). Nonetheless, even under
AT&T's interpretation of the interplay of those two sections,
Bell Atlantic's conduct is permissible. Nevertheless, AT&T's
claim fails, because AT&T misunderstands the obligations imposed
by section 251(g). That section, which is part of the
Telecommunications Act of 1996 (1996 Act), binds BOCs to the
``same equal access ... obligations'' existing ``under any court
order, consent decree, or regulation, policy or order of the
Commission'' on the date immediately preceding the date of
enactment of the 1996 Act until ``explicitly superseded'' by the
Commission.21 Thus, in order to succeed on its claim, AT&T must
cite either, (a) a pre-1996 Act court order, consent decree, or
Commission order requiring the BOCs to inform existing customers
making inbound calls to request an additional line of their long
distance choices, or (b) a Commission order issued after passage
of the 1996 Act imposing such an obligation. As discussed below,
AT&T cites no such precedent, and we are aware of none.
Accordingly, section 251(g) can impose no such obligation.
10. Nevertheless, AT&T argues that section 251(g) obligates
BOCs to inform customers of their long distance choices with
respect to all inbound calls in which a service is provided to a
customer that has not yet designated a long distance carrier,
including customer calls requesting additional lines.22 AT&T
cites a 1983 decision of the United States District Court for the
District of Columbia (Greene, J.) (Decree Court) resolving
certain disputes arising from the fact that it was becoming
possible to place an interexchange call through an interexchange
carrier (IXC) other than AT&T merely by dialing ``1+'' or a four-
digit access code.23 The Decree Court was asked to clarify the
BOCs' obligations where, as this ``dialing parity'' was achieved,
customers attempted to place interexchange calls without having
designated an IXC either by presubscription or use of an access
code. The court held that the BOCs were authorized
automatically to route such calls placed by their existing
customers to AT&T. The court required, however, that for ninety
days before and after dialing parity was achieved, the BOCs
advise these customers of their long distance choices ``at a
minimum by way of inserts in the monthly bills.''24
Significantly, the court imposed no obligation upon the BOCs to
inform existing customers of their long distance choices after
expiration of the ninety-day period. The only such obligation
imposed by the court was as to ``a customer who receives new
service,'' which the court defined as ``(1) receiv[ing] service
from the particular BOC for the first time, or (2) mov[ing] to
another location within the [BOC's] area.''25
11. Thus, the Decree Court decision does not aid AT&T.
Contrary to AT&T's assertion, the decision stands for the
proposition that section 251(g) does not require BOCs to inform
customers of their long distance choices with respect to all
inbound calls involving undesignated long distance traffic, and,
most significantly, does not require BOCs to so inform customers
who call to request an additional line. Section 251(g) imports
obligations existing ``on the date immediately preceding the date
of enactment of the [1996 Act].''26 The Decree Court imposed
only a short-lived obligation to inform existing customers of
their long distance choices, and that obligation had expired long
before the 1996 Act. The only obligation to inform callers of
their long distance choices in 1996 was as to customers who
receive ``new service.'' Yet the Bell Atlantic customers at issue
here are not customers receiving ``new service.'' They are
existing customers, and consequently are neither receiving
service from Bell Atlantic for the first time nor seeking service
as the result of a move.
12. AT&T argues that the Commission's 1985 Allocation Order
``imposed even more stringent requirements regarding a BOC's
handling of undesignated long distance traffic [than the Decree
Court's decisions].''27 In the Allocation Order, the Commission
held that BOCs should not continue to route to AT&T undesignated
long distance calls made by existing customers, and ordered the
BOCs, within six months of the effective date of the order, to
ballot their existing customers as to their choice of long
distance carrier. Like the Decree Court, however, the Commission
imposed no continuing obligation to inform these customers of
their long distance choices: Customers who did not respond to
the ballots were to be allocated to a long distance carrier
according to a prescribed formula. With respect to ``new
customers'' only, BOCs were to respond to calls requesting
service by ``provid[ing] ... the names and, if requested, the
telephone numbers of the long distance carriers and should devise
procedures to ensure that the names of these carriers are
provided in random order.''28 Thus, the Allocation Order does
not help AT&T. Like the Decree Court, the Commission imposed no
obligation pertaining in 1996 to inform existing customers of
their long distance choices.
13. AT&T asserts that the Decree Court also applied the
obligation to inform callers of their long distance choices to
customers making undesignated long distance calls using BOC
calling cards, BOC payphones, and BOC wireless services. AT&T
states, ``these cases confirm that the Decree Court ... ha[s]
always recognized that the BOCs' obligations apply broadly to all
situations in which the customer must `designate' a long distance
carrier ...''.29 AT&T's argument misses the point. Section
251(g) imports obligations as they existed the day before
enactment of the 1996 Act. Therefore, the sole issue here is
whether, in 1996, BOCs were obligated to inform existing
customers requesting additional lines of their long distance
choices; the BOCs' obligations with respect to callers using
calling cards, payphones or wireless services are simply not
relevant. Moreover, AT&T misunderstands the Decree Court's
decisions. Undesignated long distance calls simply were not at
issue with respect to BOC calling cards.30 The Decree Court
obligated the BOCs to notify payphone premises owners, on a one-
time basis, by January 1989, of their long distance choices.
This obligation was not, therefore, imported into the 1996 Act by
section 251(g). The Decree Court's ruling with respect to
wireless services is irrelevant, as section 251(g) applies only
to wireline services.
14. AT&T's reliance upon Commission orders released after
passage of the 1996 Act is equally misplaced. AT&T argues that,
in the Non-Accounting Safeguards Order, the Commission concluded
that BOCs must inform inbound callers requesting additional lines
of their long distance choices before joint marketing the
services of their long distance affiliate.31 Yet that order
limits the BOCs' obligation to inform callers of their long
distance choices to a ``customer who orders new local exchange
service,'' and expressly adopts the Decree Court's definition of
``new service'' as limited to ``(1) receiv[ing] service from the
particular BOC for the first time, or (2) mov[ing] to another
location within the [BOC's] area.''32 The BellSouth-South
Carolina Order, also cited by AT&T, refers to the Non-Accounting
Safeguards Order with approval, notes that the order limits the
obligation to inform customers of their long distance choices to
customers who receive ``new service'' and states that ``a
customer orders `new service' when the customer either receives
service from the BOC for the first time, or moves to another
location within the BOC's in-region territory.''33
15. Thus, AT&T's first claim fails. Bell Atlantic is not
obligated, when marketing BACI's services, to inform existing
customers calling to request an additional line that they have a
choice of long distance carriers and to offer to read a list of
available carriers. That obligation applies only to customers
who either (1) receive service from Bell Atlantic for the first
time, or (2) move to another location within Bell Atlantic's
area.
B. Section 272 Does Not Prohibit Bell Atlantic From Using CPNI
to Market BACI's Services Without Providing That CPNI To Other
Carriers.
16. In its second claim, AT&T asserts that Bell Atlantic is
in violation of section 272(c) of the Act because it uses
information regarding the identity of its customer's PIC to
market BACI's services without making that information available
to AT&T and other interested carriers. AT&T's second claim also
must be denied, for Bell Atlantic has not violated section
272(c). The information at issue here is customer proprietary
network information (CPNI) within the meaning of section 222,34
and, as the Commission held in the CPNI Order, section 272(c)'s
reference to ``information'' does not include CPNI.35
17. AT&T argues that we are precluded from holding that
section 272(c) ``information'' does not include CPNI based on the
CPNI Order because that order was vacated by the Tenth Circuit in
U.S. West, Inc. v. FCC.36 We disagree. When read in context,
the court's vacatur order related only to the discrete portions
of the order and rules that were before the court in light of the
parties' petitions for review and addressed by the court. The
parties' petitions for review did not include, and the Tenth
Circuit therefore neither had before it, nor addressed in its
decision, the CPNI Order's discussion of section 272(c). 37 Had
the court intended to take the unusual step of vacating portions
of the order and rules not before it, we believe it would have
said so explicitly. Accordingly, we find that the court did not
vacate the portion of the CPNI Order concluding that CPNI does
not constitute ``information'' under section 271(c).
18. AT&T argues that, even if the CPNI Order was not
vacated in its entirety, the Commission's interpretation of
section 272(c) set forth in the CPNI Order is no longer valid.
AT&T notes that the Tenth Circuit rejected the Commission's
assertion that its construction of ``approval'' as used in
section 222 did not violate the First Amendment because one of
the ``substantial state interests'' recognized by Congress in
enacting section 222 is the promotion of competition in the
telecommunications industry.38 AT&T argues that, in so holding,
the Tenth Circuit effectively destroyed ``the entire rationale''
for the CPNI Order's construction of section 272(c).39 Yet the
court did not hold that section 222 is wholly devoid of
competitive concerns; it held only that those concerns were not a
``significant consideration'' for First Amendment analysis.40
Moreover, even assuming that the Tenth Circuit's analysis applies
to the issue of exchange of CPNI between competitors, the
Commission's construction of section 222 as expressing pro-
competitive concerns was only one of several reasons why the
Commission construed section 272(c)'s reference to
``information'' not to include CPNI. The Commission also so
concluded in order to ``further the principles of customer
convenience and control,'' and protect ``customer's privacy
interests.''41 Moreover, the Commission was concerned that a
reading of section 272 such as that advocated by AT&T here would
lead BOCs to ``simply choose not to disclose their local service
CPNI,'' which ``would not serve the various customer interests
envisioned under section 222.''42 These reasons are independent
of the Commission's view that one of Congress's purposes in
enacting section 222 was to promote competition, and AT&T has not
questioned any of these rationales.
19. Accordingly, because we conclude that section 272(c)'s
reference to ``information'' does not include CPNI, we deny
AT&T's second claim. Bell Atlantic is not obligated by section
272(c) to provide its customers' CPNI to AT&T or any other
carrier.
·
· IV. ORDERING CLAUSE
20. Accordingly, IT IS ORDERED, pursuant to sections 4(i),
4(j), 208, 271, and 272 of the Communications Act of 1934, as
amended, 47 U.S.C. §§ 154(i), 154(j), 208, 271 and 272, that the
formal complaint filed by AT&T Corp. against New York Telephone
Company, d/b/a Bell Atlantic - New York, IS DENIED WITH PREJUDICE
and this proceeding IS TERMINATED.
FEDERAL COMMUNICATIONS
COMMISSION
Magalie Roman
Salas
Secretary
_________________________
1 47 U.S.C. §§ 208, 271(d)(6).
2 47 U.S.C. § 272.
3 47 U.S.C. § 153(4).
4 47 U.S.C. § 251(h)(1).
5 See In the Matter of Application by Bell Atlantic New York for
Authorization under Section 271 of the Communications Act to
Provide In-Region, InterLATA Service in the State of New York,
15 FCC Rcd 3953 (1999), aff'd sub nom. AT&T Corp. v. FCC, 220
F.3d 607 (D.C. Cir. 2000).
6 The Act at section 272(g)(2) provides, ``A [BOC] may not
market or sell interLATA [i.e., interexchange] service provided
by an affiliate required by this section within any of its in-
region States until such company is authorized to provide
interLATA services in such State under section 271(d).''
7 Joint Statement at ¶ 3.
8 Bell Atlantic states that, although it has ``no blanket
requirement'' that its sales representatives inform existing
customers requesting an additional line of their long distance
choices and offer to read a list of carriers, its sales
representatives are instructed to provide this information to
certain customers ``for reasons of administrative convenience.''
Bell Atlantic explains, ``The different treatment results from
internal classifications that are grounded in whether the
customer has the additional line billed to the same billing
account as the primary line ...''. Answer of Bell Atlantic -
New York to AT&T Corp.'s Formal Complaint, File No. EB-00-MD-011
(filed July 24, 2000) (Answer) Ex. E (Atticks Dec'n) at ¶ 7.
9 Answer Ex. E at ¶¶ 5-6.
10 Answer Ex. E. at ¶ 7.
11 Id. at ¶ 9 n.2 (explaining that Bell Atlantic may provide
other carriers with customer PIC information to comply with
other statutory requirements).
12 Formal Complaint of AT&T Corp., File No. EB-00-MD-011 (filed
July 10, 2000) (Complaint) at ¶¶ 30-32, 34, 36.
13 The Act at section 272(c) provides, in pertinent part, ``In
its dealings with its [section 272] affiliate, ... a [BOC] ...
may not discriminate between that company or affiliate and any
other entity in the provision or procurement of ... services,
facilities, and information ... ''.
14 Complaint at ¶¶ 33-36.
15 47 U.S.C. § 272(a), (b).
16 47 U.S.C. § 272(c).
17 47 U.S.C. § 272(g)(3).
18 47 U.S.C. § 272(g)(2).
19 AT&T Corp. v. FCC, 220 F.3d 607, 632 (D.C. Cir. 2000).
20 Opposition of AT&T Corp. to Bell Atlantic's Motion to Dismiss
Complaint, File No. E-00-MD-011 (filed July 31, 2000) at 7.
21 Section 251(g) provides, in pertinent part, ``On and after
the date of enactment of the [1996 Act], each local exchange
carrier, to the extent that it provides wireline services, shall
provide exchange access, information access, and exchange
services for such access to interexchange carriers ... in
accordance with the same equal access and non-discriminatory
interconnection restrictions and obligations ... that apply to
such carrier on the date immediately preceding the date of
enactment of the [1996 Act] under any court order, consent
decree, or regulation, order or policy of the Commission, until
such restrictions and obligations are explicitly superseded by
regulations prescribed by the Commission after such date of
enactment.'' 47 U.S.C. § 251(g).
22 Brief of AT&T Corp. on Bell Atlantic's Liability for Joint
Marketing Violations, File No. EB-00-MD-011 (filed Aug. 14,
2000)(AT&T Br.) at 8, 15.
23AT&T Br. at 16 (citing United States v. AT&T Corp., 578 F.
Supp. 668 (D.D.C. 1983)). Prior to the achievement of dialing
parity, customers could place interexchange calls through IXCs
other than AT&T only by dialing a twelve or thirteen-digit
access code. See United States v. AT&T Corp., 578 F. Supp. at
670 (D.D.C. 1983)
24 United States v. AT&T Corp., 578 F. Supp. at 676.
25 Id. at 677. The court ruled, ``no [BOC] shall ...
automatically ... assign to AT&T the calls of a customer who
receives new service but fails to designate an [IXC] ... . The
[BOC] may instead ... assist [the caller] in locating [an IXC],
provided that no favoritism is shown to any particular
carrier.'' Id.
26 47 U.S.C. § 251(g).
27 AT&T Br. at 16 (citing Investigation of Access and
Divestiture Related Tariffs, Memorandum Opinion and Order, 101
FCC2d 911at ¶¶ 33-35 (1985) (Allocation Order)).
28 In the Matter of Investigation of Access and Divestiture
Related Tariffs, Allocation Plan Wavers and Tariffs, Memorandum
Opinion and Order, 101 FCC2d 935, 949 ¶ 40 (FCC 1985)
(construing the Allocation Order).
29 AT&T Reply Br. at 16 (citing United States v. AT&T Corp., 698
F. Supp. 348 (D.D.C. 1988) (calling cards and payphones), and
United States v. AT&T Corp., 890 F. Supp. 1 (D.D.C. 1995)
(wireless calls)).
30 Because the Decree Court found that the BOCs had, in
violation of their equal access obligations, routed all calling
card calls not preceded by ``0 +'' to AT&T, and implied in their
advertisements that the holders' long distance calls would be
carried by the BOC who issued the card, it ordered the BOC's to
notify cardholders, on a one-time basis, by January 1989, that
long distance calls placed using the calling card might be
carried by a carrier other than the holder's PIC, and that they
should contact long distance carriers regarding alternative
methods of charging long distance calls. See United States v.
AT&T Corp., 698 F. Supp. at 356 - 7.
31 AT&T Br. at 14 (citing In the Matter of Implementation of the
Non-Accounting Safeguards of Sections 271 and 272 of the
Communications Act of 1934, as amended, First Report and Order,
11 FCC Rcd 21905, 22207 ¶ 292 (FCC 1996) (Non-Accounting
Safeguards Order)).
32Non-Accounting Safeguards Order at ¶ 292, n. 761(citing United
States v. AT&T Corp., 578 F.Supp. at 676-7).
33In the Matter of Application of BellSouth Corp. et al.
Pursuant to Section 271 of the Communications Act of 1934, as
amended, To Provide In-Region, InterLATA Services in South
Carolina, Memorandum Opinion and Order, 13 FCC Rcd 539 at n. 675
(1997) , aff'd sub nom. BellSouth Corp. v. FCC, 162 F.3d 678
(D.C. Cir. 1998) (BellSouth-South Carolina Order). Accord, In
the Matter of the Application of BellSouth Corp. et al. For
Provision of In-Region, InterLATA Services in Louisiana,
Memorandum Opinion and Order, 13 FCC Rcd 20599 ¶ 357 (1998).
AT&T argues that in AT&T Corp. v. Ameritech Corp., 13 FCC Rcd
21438 (FCC 1998), the Commission ``observ[ed] that proposed BOC
marketing scripts that `endors[e] and promot[e]' and actively
`encourage use of' a particular carrier `raise[] serious
concerns' about violations of the Act's equal access and
nondiscrimination requirements.'' AT&T Br. at 8 (quoting AT&T
Corp. v. Ameritech Corp., 13 FCC Rcd at ¶¶ 58-63). But the
``concerns'' expressed by the Commission in the Ameritech Corp.
order were as to a BOC's marketing of a non-affiliated IXC's
long distance services where the BOC had not received section
272(d)(3) approval.
34 See Implementation of the Telecommunications Act of 1996:
Telecommunications Carriers' Use of Customer Proprietary
Information and Other Customer Information, Order on
Reconsideration and Petitions for Forbearance, 14 FCC Rcd 14,409
at ¶ 148 (1999). The parties stipulated that the PIC
information at issue was CPNI. See Joint Statement for Initial
Status Conference, File No. E-00-MD-011 (filed July 31, 2000) at
3 ¶ 6. See also id. at 5 ¶ 7. The question of the use for
marketing purposes of carrier proprietary information within the
meaning of section 222(b) has not been pleaded and therefore is
not addressed here.
35 See Implementation of the Telecommunications Act of 1996:
Telecommunications Carriers' Use of Customer Proprietary
Information and Other Customer Information, Second Report and
Order, 13 FCC Rcd 8061 (1998) (CPNI Order) at 81728174 - 8179 ¶¶
158 - 169, vacated sub nom., U.S. West, Inc. v. FCC, 182 F.3d
1224 (10th Cir. 1999), cert. denied, 120 S. Ct. 2215 (2000).
36 U.S. West, Inc. v. FCC, 182 F.3d 1224 (10th Cir. 1999), cert.
denied, 120 S. Ct. 2215 (2000) (U.S. West).
37 The court described petitioner's challenge to the CPNI Order
as ``First and Fifth Amendment challenges to the approval
procedure [i.e., ``opt-in''] adopted by the FCC.'' U.S. West, 182
F.3d at 1231. The court limited its ruling accordingly. The
court stated, ``[T]he FCC ... insufficiently justified its choice
to adopt an opt-in regime. Consequently, its CPNI regulations
must fall under the First Amendment.'' Id. at 1240. See also,
id., at 1240 n. 15 (``We merely find fault in the FCC's
inadequate consideration of the approval mechanism alternatives
in light of the First Amendment'').
38 AT&T Br. at 26 (citing U.S. West, 182 F.3d at 1236).
39 AT&T Br. at 26.
40U.S. West, 182 F.3d at 1236.
41CPNI Order at ¶ 160.
42 Id. at ¶ 161.