**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | File No. EB-00-MD-011        |
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| AT&T Corp.,                      | ) |                              |
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| Complainant,                     | * |                              |
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| New York Telephone Company,      | ) |                              |
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| d/b/a Bell Atlantic -- New York, | * |                              |
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+----------------------------------+---+------------------------------+

**MEMORANDUM OPINION AND ORDER**

**Adopted:** October 5, 2000 **Released:** October 6, 2000

By the Commission: Chairman Kennard and Commissioner Ness issuing
separate statements

# 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.

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IV. **IV. ORDERING CLAUSE**

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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.

[^23]: AT&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*)).

[^32]: *Non-Accounting Safeguards Order* at ¶ 292, n. 761(citing *United
    States v. AT&T Corp.,* 578 F.Supp. at 676-7).

[^33]: *In 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 (10^th^
    Cir. 1999), *cert. denied*, 120 S. Ct. 2215 (2000).

[^36]: *U.S. West, Inc. v. FCC*, 182 F.3d 1224 (10^th^ 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.

[^40]: *U.S. West*, 182 F.3d at 1236*.*

[^41]: *CPNI Order* at ¶ 160.

[^42]: *Id.* at ¶ 161.