**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | CC Docket No. 96-61          |
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| Union Telephone Company          | ** |                              |
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| Petition for Waiver of Sections  | *  |                              |
| 64.1903(a)(2) and 64.1903(b) of  | *) |                              |
| the Commission's Rules           | ** |                              |
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**ORDER**

**Adopted: March 14, 2007 Released: March 14, 2007**

By the Chief, Wireline Competition Bureau:

1.  In this Order, we deny Union Telephone Company's (Union) petition
    for waiver of sections 64.1903(a)(2) and 64.1903(b) of the
    Commission's rules to allow the continued provision of long distance
    services to its rural customers without structural changes.[^1]
    Specifically, Union stated in its petition that it owns transmission
    facilities in Colorado, Utah, and Wyoming and was seeking a waiver
    of the requirement that all incumbent local exchange companies,
    except "pure" resellers, must establish a separate subsidiary for
    the purpose of providing in-region interexchange telecommunication
    services.[^2] We conclude that the issues raised in this proceeding
    are being considered in the Commission's *Structural Separation*
    proceeding and that Union presents no special circumstance to
    warrant a waiver of the Commission's rules.[^3]

2.  In the Commission's *Structural Separation* proceeding, the
    Commission sought comment on, among other things, whether the
    application of the separate affiliate requirement for incumbent
    independent local exchange carriers (LECs) serves the public
    interest.[^4] In a further notice of proposed rulemaking, the
    Commission sought comment on, among other things, whether it should
    classify independent LECs as non-dominant or dominant in their
    provision of in-region, interstate and international interexchange
    telecommunications services absent adherence to the separate
    affiliate requirements currently imposed on independent LECs.[^5]

3.  Union has not demonstrated good cause to justify a waiver.[^6] In
    particular, we find that Union has not carried its burden of
    demonstrating special circumstances that would distinguish it from
    similarly situated independent LECs and warrant a waiver of the
    rules.[^7] The Commission is considering in the *Structural
    Separation* proceeding the issues raised in Union's petition as they
    apply to all similarly situated incumbent LECs. Thus, Union's
    concerns will be addressed in the context of that broader
    proceeding, and we conclude that granting Union a waiver of section
    64.1903(a)(2) and 64.1903(b) of the Commission's rules would not
    serve the public interest.

4.  Accordingly, IT IS ORDERED that pursuant to sections 4(i)-(j), 201,
    and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C.
    §§ 154(i)-(j), 201, and 303(r), and the authority delegated under
    sections 0.91 and 0.291 of the Commission's rules, 47 C.F.R. §§ 0.91
    and 0.291, that the above-referenced petition for waiver is DENIED.

FEDERAL COMMUNICATIONS COMMISSION

> Thomas J. Navin
>
> Chief, Wireline Competition Bureau

[^1]: *See* Union Telephone Company; Petition for Waiver of Sections
    64.1903(a)(2) and 64.1903(b) of the Commission's Rules, CC Docket
    No. 96-61, Petition for Waiver of Union Telephone Company (filed
    Aug. 30, 1999) (Petition); *see also Pleading Cycle Established for
    Comments on Union Telephone Company Petition for Waiver of Sections
    64.1903(a)(2) and 64.1903(b) of the Commission's Rules*, CC Docket
    No. 96-61, Public Notice, 14 FCC Rcd 16244 (1999).

[^2]: Petition at 1-2.

[^3]: *See Section 272(f)(1) Sunset of the BOC Separate Affiliate and
    Related Requirements*, WC Docket No. 02-112; CC Docket No. 00-175,
    Further Notice of Proposed Rulemaking, 18 FCC Rcd 10914 (2003)
    (*Structural Separation Further Notice*) (citing *2000 Biennial
    Regulatory Review Separate Affiliate Requirements of Section 64.1903
    of the Commission's Rules*, CC Docket No. 00-175, Notice of Proposed
    Rulemaking, 16 FCC Rcd 17270 (2001) (*Structural Separation
    Notice*)).

[^4]: *See Structural Separation Notice*, 16 FCC Rcd at 17273, para. 8.

[^5]: *See Structural Separation Further Notice*, 18 FCC Rcd at
    10934-36, paras. 41-43.

[^6]: The Commission may waive its rules when good cause is
    demonstrated. 47 C.F.R. § 1.3; *see also WAIT Radio v. FCC,* 418
    F.2d 1153, 1159 (D.C. Cir. 1969) (*WAIT Radio*), *cert. denied*, 409
    U.S. 1027 (1972). The Commission may exercise its discretion to
    waive a rule where the particular facts make strict compliance
    inconsistent with the public interest. *See Northeast Cellular
    Telephone Co. v. FCC,* 897 F.2d 1164, 1166 (D.C. Cir. 1990)
    (*Northeast Cellular*). In doing so, the Commission may take into
    account considerations of hardship, equity, or more effective
    implementation of overall policy on an individual basis. *See WAIT
    Radio,* 418 F.2d at 1159; *Northeast Cellular*, 897 F.2d at 1166.

[^7]: Commission rules are presumed valid and an applicant for waiver
    bears a heavy burden. *See WAIT Radio*, 418 F.2d at 1157. Waiver of
    the Commission's rules is therefore appropriate only if special
    circumstances warrant a deviation from the general rule, and such a
    deviation will serve the public interest. *See id*. at 1159.