Before the

FEDERAL COMMUNICATIONS COMMISSION

Washington, D.C. 20554

In the Matter of )

)

Part 68 Waiver Requests of ) File Nos.:

)

Westell Technologies, Inc. ) NSD-L-00-88

GVC Corporation ) NSD-L-00-89

Ambit Microsystems Corporation ) NSD-L-00-90

Xpeed, Inc. ) NSD-L-00-91

Askey Computer Corporation ) NSD-L-00-92

Arescom Inc. ) NSD-L-00-93

Motorola Inc. ) NSD-L-00-98

Askey Computer Corporation ) NSD-L-00-101

Ambit Microsystems Corporation ) NSD-L-00-104

Cayman Systems, Inc. ) NSD-L-00-105

> **ORDER**

Adopted: June 26, 2000 Released: June 27, 2000

By the Chief, Network Services Division, Common Carrier Bureau:

1\. The Commission has received petitions for waiver of 47 C.F.R.
section 68.308(e)(1) of its rules from the following parties who wish to
register, under Part 68 of the rules, Asymmetrical Digital Subscriber
Line (ADSL) modems that exceed the out‑of‑band signal power limitations
of that section:[^1]

• Westell Technologies, Inc. on May 24, 2000 for its ADSL Modem
B90-36R5xx;

• GVC Corporation on May 26, 2000 for its DSL-8001IB1/T1;

• Ambit Microsystems Corporation on May 26, 2000 for its T60M093.00;

• Xpeed, Inc. on June 1, 2000 for its Models 410 and 411;

• Askey Computer Corporation on June 1, 2000 for its ALE070;

• Arescom Inc. on June 1, 2000 for its NetDSL 88;

> • Motorola Inc. on June 9, 2000 for its Instant Access Models 2220,
> 2221, 2225, and 2226;
>
> • Askey Computer Corporation on June 9, 2000 for its ALE060;
>
> • Ambit Microsystems Corporation on June 16, 2000 for its T60M104.00;
>
> • Cayman Systems, Inc. on June 19, 2000 for its ADSL Modem.

For the reasons discussed below, we grant these petitions, subject to
the conditions in this Order.

######### 

2\. [Part 68 Registration Process.]{.underline} All terminal equipment
sold in the United States and connected to the public switched telephone
network (PSTN) must be registered under Part 68 of the Commission\'s
rules.[^2] The Part 68 registration process requires testing of a device
to demonstrate that it conforms to specifications designed to prevent
harm to the PSTN.[^3] If tests show that an applicant\'s device meets
these Part 68 requirements, the Commission issues a registration number
for it, thereby permitting its sale and connection to the PSTN in the
United States. A waiver of Section 68.308(e)(1), as requested by the
above-mentioned Petitioners, would allow Petitioners to submit their
ADSL modems for Part 68 registration despite the fact that the modems do
not meet the out-of-band signal limitations of section 68.308(e)(1). A
waiver of one or more requirements of Part 68 does not, however, excuse
an applicant from this testing process.

3\. [Waiver Standard.]{.underline} The Commission will not waive any
provision of its rules unless good cause is shown.[^4] Under the
relevant case law, the applicant has the burden of showing good cause
for a waiver: \"\[a\]n applicant \[for a waiver\] faces a high hurdle
even at the starting gate.\"[^5] Nevertheless, an agency must take a
\"hard look\" at applications for waiver[^6] and must consider all
relevant factors.[^7] An agency must adhere strictly to its rules unless
a party can show \"reasons why in the public interest the rule should be
waived.\"[^8] Finally, \"\[t\]he agency must explain why deviation
better serves the public interest and articulate the nature of the
special circumstances to prevent discriminatory application and to put
future parties on notice as to its operation.\"[^9]

4\. [Streamlined ADSL Waiver Process]{.underline}. On February 28, 2000,
the Commission\'s Common Carrier Bureau released a Memorandum Opinion
and Order granting Alcatel USA, Inc., (Alcatel) a waiver of Section
68.308(e)(1) of the Commission\'s rules for a similar ADSL modem.[^10]
The Commission granted the waiver subject to two conditions (Alcatel
conditions), which were corrected by erratum[^11] to read as follows:
the ADSL modem must (1) meet the transmitter spectral response
requirements specified in Section 7.14 of T1.413- Issue Two (1998), and
(2) operate with an aggregate power of less than 12.5 dBm over the range
25.875 to 138 kHz as specified in Section 7.15 of the same document.

5\. The Alcatel Waiver Order additionally established a streamlined
process for Part 68 waivers of ADSL modems, eliminating the usual public
notice and comment procedures if a petitioner certifies that the above
two conditions are met. The Commission determined that because the ANSI
T1.413 - Issue Two (1998) standard for ADSL modems reflects a reasonable
level of industry consensus on terminal equipment output limitations
intended to protect the PSTN, we can rely on this standard in
establishing a streamlined waiver process that will provide
manufacturers and carriers the stability afforded by our Part 68 rules
without the expense and delay associated with the rule making process.
The Commission invited other parties able to meet the Alcatel conditions
to file petitions for waiver of Section 68.308(e)(1) in order to
register ADSL modems. In addition, the Commission determined that
further waivers would facilitate the market availability of such
equipment, thus serving the public interest through increased
innovation, consumer choice, and value. By serving the public interest,
ADSL modems satisfy part one of the two-part analysis that the
Commission has used in evaluating Part 68 waiver requests. By not
harming the PSTN in accordance with the Alcatel conditions, they also
satisfy the second part.

6\. [Discussion.]{.underline} All Petitioners cited above have certified
that their devices are ADSL modems that comply with the two conditions
specified in the Alcatel Waiver Order. Thus, we conclude, for the same
reasons as in the Alcatel Waiver Order, that Petitioners have shown good
cause for granting the requested waivers. Applications to register these
devices under Part 68 of our rules may be submitted with this waiver.

**ORDERING CLAUSES**

7\. Accordingly, IT IS ORDERED, pursuant to authority delegated in
Sections 0.91 and 0.291 of the Commission\'s rules, 47 C.F.R. §§ 0.91,
0.291, and Section 1.3 of the Commission\'s Rules, 47 C.F.R. § 1.3, that
the requests for waiver of Section 68.308(e)(1) ) of the rules, 47
C.F.R. § 68.308(e)(1) by Westell Technologies Inc., GVC Corporation,
Ambit Microsystems Corporation, Xpeed Inc., Askey Computer Corporation,
Arescom Inc., Motorola Inc., and Cayman Systems, Inc. ARE GRANTED to the
extent stated herein.

8\. IT IS FURTHER ORDERED that the petitions for waiver ARE GRANTED
SUBJECT TO THE following conditions: that the devices (1) meet the
transmitter spectral response requirements specified in Section 7.14 of
ANSI T1.413- Issue Two (1998), and (2) operate with an aggregate power
of less than 12.5 dBm over the range 25.875 to 138 kHz as specified in
Section 7.15 of the same document.

FEDERAL COMMUNICATIONS COMMISSION

L. Charles Keller

Chief, Network Services Division

#########  Common Carrier Bureau

[^1]: ^?^ An ADSL modem provides high bit-rate digital transmission
    concurrent with analog voice transmission over a single telephone
    line.

[^2]: ^    ?^ 47 C.F.R. § 68.2.

[^3]: ^    ?^ *See* FCC Form 730, Application Guide, Revision C - 273
    (March 1997).

[^4]: ^    ?^ 47 C.F.R. § 1.3.

[^5]: ^    ?^ *WAIT Radio v. FCC,* 418 F.2d 1153, 1157 (D.C. Cir. 1969).

[^6]: ^    ?^ *Id.*

[^7]: ^    ?^ *Citizens to Preserve Overton Park, Inc. v. Volpe,* 401
    U.S. 402, 416 (1971).

[^8]: ^    ?^ *FPC v. Texaco Inc*., 377 U.S. 33, 39 (1964).

[^9]: ^  ?^ *Northeast Cellular Telephone Company, L.P. v. FCC*, 897
    F.2d 1164, 1166 (D.C. Cir. 1990).

[^10]: *Alcatel USA, Inc. Petition for Waiver of the Signal Power
    Limitations Contained in Section 68.308(e)(1) of the* *Commission\'s
    Rules*, Order, NSD File No. NSD-L-99-81, DA 00-388 (rel. Feb. 28,
    2000)(Alcatel Waiver Order).

[^11]: ^?^ *Alcatel USA, Inc. Petition for Waiver of the Signal Power
    Limitations Contained in Section 68.308(e)(1) of the* *Commission\'s
    Rules*, Erratum, NSD File No. NSD-L-99-81, DA 00-388 (rel. March 21,
    2000).