**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | CC Docket 98-147             |
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| Deployment of Wireline Services  | ** | CC Docket 96-98              |
| Offering Advanced                |    |                              |
| Telecommunications Capability    | *  |                              |
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| Implementation of the Local      | *  |                              |
| Competition Provisions of the    | *) |                              |
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| Telecommunications Act of 1996   |    |                              |
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**ORDER**

**Adopted: March 31, 2004 Released: April 5, 2004**

By the Commission:

# I. INTRODUCTION

1.  The Commission has before it a petition for declaratory ruling filed
    by NuVox, Inc. (NuVox) regarding auditing issues stemming from the
    Commission's *Supplemental Order Clarification*.[^1] As explained
    below, in light of the Commission's subsequent adoption of new
    unbundling rules in the *Triennial Review Order*, we dismiss NuVox's
    petition as moot.[^2] We also conclude that the Commission's actions
    in the *Triennial Review Order* address the issues raised in the
    *Fifth Further Notice* in CC Docket 96-98, and therefore we
    terminate that proceeding.[^3]

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II. **BACKGROUND**

    **A. *Supplemental Order Clarification***

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2.  In the *UNE Remand Order*, the Commission required incumbent LECs to
    provide unbundled access to loop-transport combinations, known as
    enhanced extended links (EELs), pursuant to section 51.315(b) of the
    Commission's rules.[^4] Shortly after the release of that decision,
    the Commission issued the *Supplemental Order* that limited
    competitive LEC access to EELs to where they provide a "significant
    amount of local exchange service" to a particular customer.[^5]
    Subsequently, in the June 2, 2000 *Supplemental Order
    Clarification*, the Commission clarified the "significant local
    usage" requirement by establishing three safe harbors for
    demonstrating that a competitive LEC was providing a significant
    amount of local service, and also allowed incumbent LECs limited
    auditing rights.[^6]

3.  NuVox filed its request for declaratory ruling with respect to
    certain issues stemming from the Commission's *Supplemental Order
    Clarification*. In particular, NuVox requests a declaratory ruling
    on the procedures that incumbent LECs must follow when auditing
    competitive LEC usage of EELs, including clarification of auditor
    independence and allocation of auditing costs.[^7]

4.  The *Triennial Review Order* adopted altogether new unbundling
    rules, including new eligibility rules for EELs. Specifically, in
    addition to adopting new rules regarding the eligibility
    requirements that competitive LECs must meet when obtaining EELs,
    the Commission also issued new rules governing procedures that
    incumbent LECs must follow when auditing whether competitive LECs
    are meeting the eligibility requirements.[^8]

    **B. *Fifth Further Notice***

5.  In the *Fifth Further Notice*, the Commission sought comment on
    whether the deployment of new network architectures, including
    installation of fiber deeper into the neighborhood, necessitates any
    modification to or clarification of the Commission's local
    competition rules, particularly the rules pertaining to access to
    unbundled transport, loops and subloops.[^9] Subsequently, in the
    *Triennial Review Order*, the Commission addressed the deployment of
    new network architectures and adopted specific unbundling
    requirements for unbundled transport, loops and subloops.

    **III. DISCUSSION**

6.  We find that the issues raised in the NuVox petition are now moot
    and accordingly we dismiss Nuvox's petition. Subsequent to the
    filing of NuVox's petition, the Commission adopted altogether new
    rules for EELs in the *Triennial Review Order*. Specifically, in
    addition to adopting new rules regarding the eligibility
    requirements that competitive LECs must meet when obtaining EELs,
    the Commission adopted new rules governing incumbent LEC auditing
    procedures that address auditor independence and cost
    allocation.[^10] Accordingly, in light of the Commission's adoption
    of new EELs unbundling rules, we conclude that NuVox's request for a
    declaratory ruling concerning the old EELs rules has also been
    superceded by intervening events.

7.  We also find that the Commission's actions in the *Triennial Review
    Order* render the issues raised in the *Fifth Further Notice* moot
    and obviate the need for further action in that proceeding. In the
    *Triennial Review Order*, the Commission resolved the issues raised
    in the *Fifth Further Notice* regarding deployment of new network
    architectures, including access to unbundled transport, loops and
    subloops.[^11] Specifically, the *Triennial Review Order* sets forth
    specific unbundling requirements for each of these network elements
    to foster increased competition and encourage further deployment of
    broadband facilities.[^12] Accordingly, we terminate this rulemaking
    proceeding.

    **IV. ORDERING CLAUSES**

8.  Accordingly, IT IS ORDERED that the Petition for Declaratory Ruling
    filed by NuVox, Inc. in CC Docket No. 96-98 on May 17, 2002 IS
    DISMISSED as moot.

9.  IT IS FURTHER ORDERED that the Fifth Further Notice of Proposed
    Rulemaking in *Implementation of the Local Competition Provisions of
    the Telecommunications Act of 1996*, CC Dockets Nos. 98-147 and
    96-98, IS TERMINATED.

    FEDERAL COMMUNICATIONS COMMISSION

    Marlene H. Dortch

    Secretary

[^1]: *Implementation of the Local Competition Provisions of the
    Telecommunications Act of 1996*, Supplemental Order Clarification,
    15 FCC Rcd 9587 (2000) (*Supplemental Order Clarification*), *aff'd
    sub nom. CompTel v. FCC*, 309 F.3d 3 (D.C. Cir. 2002). On May 17,
    2002, NuVox filed its Petition for Declaratory Ruling (NuVox
    Petition) in CC Docket 96-98.

[^2]: *See United States Telecom Ass'n v. FCC*, 290 F.3d 415, 429 (D.C.
    Cir. 2002) (*USTA*), *cert. denied sub nom. WorldCom, Inc. v. United
    States Telecom Ass'n*, 123 S. Ct. 1571 (2003 Mem.); *Review of the
    Section 251 Unbundling Obligations of Incumbent Local Exchange
    Carriers, Implementation of the Local Competition Provisions of the
    Telecommunications Act of 1996, Deployment of Wireline Services
    Offering Advanced Telecommunications Capability*, CC Docket Nos.
    01-338, 96-98, 98-147, Report and Order and Order on Remand and
    Further Notice of Proposed Rulemaking, 18 FCC Rcd 16978 (2003)
    (*Triennial Review Order*), *corrected by* Errata, 18 FCC Rcd 19020
    (2003) (*Triennial Review Order Errata*), *petitions for review
    pending*, *United States Telecom Ass'n v. FCC*, D.C. Cir. No.
    00-1012 (and consolidated cases).

[^3]: *Implementation of the Local Competition Provisions of the
    Telecommunications Act of 1996*, Order on Reconsideration and Second
    Further Notice of Proposed Rulemaking in CC Docket No. 98-147 and
    Fifth Further Notice of Proposed Rulemaking in CC Docket No. 96-98,
    15 FCC Rcd 17806, 17856-62, paras. 118-33 (2000) (*Fifth Further
    Notice*).

[^4]: *Implementation of the Local Competition Provisions of the
    Telecommunications Act of 1996*, CC Docket No. 96-98, Third Report
    and Order and Fourth Further Notice of Proposed Rulemaking, 15 FCC
    Rcd 3696 (1999) (*UNE Remand Order*) (prohibiting incumbent LECs
    from separating currently combined network elements before providing
    them to requesting carriers), *reversed and remanded in part sub
    nom. United States Telecom Ass'n v. FCC*, 290 F.3d 415 (D.C. Cir.
    2002), *cert. denied sub nom. WorldCom, Inc. v. United States
    Telecom Ass'n*, 123 S. Ct. 1571 (2003 Mem.).

[^5]: *Implementation of the Local Competition Provisions of the
    Telecommunications Act of 1996*, Supplemental Order, 15 FCC Rcd 1760
    (2000) (*Supplemental Order*).

[^6]: *Supplemental Order Clarification*, 15 FCC Rcd at 9598-99,
    9602-03, paras. 22, 28-29.

[^7]: NuVox Petition at 2-3.

[^8]: *Triennial Review Order*, 18 FCC Rcd at 17368-71, paras. 622-29.

[^9]: *Fifth Further Notice*, 15 FCC Rcd at 17856-62, paras. 118-33.

[^10]: *Triennial Review Order*, 18 FCC Rcd at 17337-71, paras. 569-629,
    *corrected by Triennial Review Order Errata*, 18 FCC Rcd at 19020,
    para. 7.

[^11]: *Id.* at 17102-05, 17184-201, paras. 197-202, 343-60, *corrected
    by Triennial Review Order Errata*, 18 FCC Rcd at 19020-21, paras. 7,
    14.

[^12]: *Id.* at 17109-99, 17206-37, paras. 209-358, 370-418, *corrected
    by Triennial Review Order Errata*, 18 FCC Rcd at 19020-21, paras.
    8-14.