PUBLIC NOTICE![](media/image1.png){width="0.95in"
height="0.9055555555555556in"}

FEDERAL COMMUNICATIONS COMMISSION

445 12th STREET, S.W.

WASHINGTON, D.C. 20554 **DA 00-2530**

News media information 202/418-0500 Fax-On-Demand 202/418-2830 Internet:
http://www.fcc.gov ftp.fcc.gov

**COMMENTS REQUESTED IN CONNECTION WITH COURT REMAND OF**

**NON-ACCOUNTING SAFEGUARDS ORDER**

**CC DOCKET NO. 96-149**

# 

**Released: November 8, 2000**

**Comment Date: Wednesday, November 29, 2000**

**Reply Comment Date: Monday, December 11, 2000**

In the *Non-Accounting Safeguards Order*, the Commission concluded that
the term "interLATA services" as used in section 271 of the
Communications Act of 1934, as amended, encompasses not only interLATA
telecommunications services, but also interLATA information
services.[^1] The Commission reasoned that interLATA information
services are "interLATA services" because they include a bundled,
interLATA telecommunications component.[^2] Although several parties
petitioned for reconsideration of various aspects of the *Non-Accounting
Safeguards Order*, no party asked the Commission to reconsider its
ruling that the term "interLATA services" includes information services.

Following the Commission's adoption of the *Third Reconsideration
Order*,[^3] the Bell Atlantic telephone companies (n/k/a the Verizon
telephone companies) and US WEST, Inc. (n/k/a Qwest Communications
International Inc.) petitioned for judicial review of the
*Non-Accounting Safeguards Order* in the United States Court of Appeals
for the District of Columbia Circuit, seeking reversal of the
Commission's holding that the term "interLATA services" extends to both
telecommunications and information services. In their joint appellate
brief, the petitioners contend that the agency's statutory
interpretation conflicts with the statute's plain meaning. In support of
their argument, the petitioners rely on a 1998 Commission Report to
Congress in which, they claim, the Commission declared "that
'telecommunications' and 'information services' are mutually exclusive
categories and that a provider of 'information services' does not
*provide '*telecommunications' but rather *uses
'*telecommunications.'"[^4] Petitioners argue that if a provider of
information services does not provide telecommunications, then it does
not provide "interLATA service," which the statute defines as a form of
"telecommunications." Thus, petitioners contend, the restrictions
established by section 271 do not apply when a Bell operating company or
its affiliate provides an information service.

In response to the petitioners' appellate brief, the Commission moved
for a voluntary remand to consider further the issues raised by the
petitioners. The Commission explained that a remand was necessary
because the arguments advanced by the petitioners in their appellate
brief had not been presented in the administrative proceeding. The
petitioners' appellate brief relied heavily on a Report to Congress that
the Commission issued more than a year after release of the
*Non-Accounting Safeguards Order*. The Commission further noted that, in
comments filed during reconsideration of other aspects of the
*Non-Accounting Safeguards Order*, the petitioners appeared to advocate
the very same statutory interpretation that they now challenge on
appeal.[^5] In light of these factors, the Commission asked that the
court grant it the opportunity to consider the threshold question of
statutory interpretation -- the proper scope of the term "interLATA
services" -- based on a more complete administrative record. On October
27, 2000, the court granted the Commission's motion and remanded the
matter to the Commission.[^6]

We have placed a copy of the petitioners' appellate brief in the
above-captioned docket. To aid the Commission in meeting its commitment
to the court to consider and address within 180 days the issues raised
by the petitioners, the Common Carrier Bureau issues this Public Notice
seeking comment on the arguments raised by the petitioners before the
D.C. Circuit. We ask that the parties address the following issues, as
well as any additional issues previously raised before the Commission or
the court that are relevant to this inquiry.

1\. Does the provision of an "information service" necessarily include a
bundled telecommunications component that falls within the Act's
definition of an "interLATA service"? To the extent that it is using
telecommunications, can the provider of an information service also be
deemed to be providing telecommunications? Does the analysis of this
issue change if the information service provider is transmitting
services over its own telecommunications facilities rather than using
facilities obtained from other carriers?

2\. Considering the Act's text, structure, purpose, and history, what
effect, if any, should the Commission give to section 271(g)'s reference
to "incidental interLATA services," which the Commission has interpreted
as applying to both incidental telecommunications and information
services?[^7]

3\. Considering the Act's text, structure, purpose, and history, what
effect, if any, should the Commission give to section 272(a)(2)(B)'s
reference to "interLATA telecommunications services"? Does use of this
term imply that interLATA telecommunications service is a subset of a
more general category of "interLATA services" that could include
interLATA information services, or did Congress mean simply to
distinguish common-carrier transmission services from non-common carrier
transmission services, as the petitioners contend?

4\. Considering the Act's text, structure, purpose, and history, what
effect, if any, should the Commission give to section 272(a)(2)(C)'s
reference to "interLATA information services"? For purposes of
interpreting the term "interLATA services" in section 271, is there any
significance to the fact that section 272 treats "interLATA
telecommunications services" differently from "interLATA information
services"?

5\. The petitioners' appellate brief quotes several passages from the
Commission's 1998 Report to Congress. Do those passages support the
conclusion that information services fall outside of the scope of the
statutory definition of "interLATA service"? If so, why? If not, why
not?

Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47
C.F.R. §§ 1.415, 1.419, interested parties may file comments on or
before Wednesday, November 29, 2000, and reply comments on or before
Monday, December 11, 2000. All filings should refer to CC Docket No.
96-149. Comments may be filed using the Commission's Electronic Comment
Filing System (ECFS) or by filing paper copies.[^8] Comments filed
through the ECFS can be sent as an electronic file via the Internet to
\<http://www.fcc.gov/e-file/ecfs.html\>. Parties may also submit an
electronic comment by Internet e-mail. To get filing instructions for
e-mail comments, commenters should send an e-mail to ecfs@fcc.gov, and
should include the following words in the body of the message, \"get
form \<your e-mail address.\" A sample form and directions will be sent
in reply.

Parties choosing to file by paper copy must file an original and two
copies of each pleading with the Commission\'s Secretary, Magalie Roman
Salas, Office of the Secretary, Federal Communications Commission, 445
12th St. SW, Room TW-B204, Washington, D.C. 20554. An additional copy
should also be sent to: (1) Johanna Mikes, Common Carrier Bureau, Policy
and Program Planning Division, FCC, 445 12th St., SW, Room 5-C163,
Washington, D.C. 20554, and (2) the Commission's contractor for public
service records duplication, International Transcription Services, Inc.
(ITS), 445 12th Street, SW, Room CY-B402, Washington, D.C. 20554.
Comments and reply comments will be available for public inspection
during regular business hours in the FCC Reference Center, Room CY-A257,
445 12th Street, SW, Washington, D.C. 20554. Copies may also be obtained
from ITS, 445 12th Street, SW, Room CY-B402, Washington, D.C. 20554,
(202) 314-3070.

We will continue to treat this proceeding as "permit-but-disclose" for
purposes of the Commission's *ex parte* rules. *See* 47 C.F.R. §§
1.1200, 1.1206. Persons making oral *ex parte* presentations are
reminded that memoranda summarizing the presentations must contain
summaries of the substance of the presentations and not merely a listing
of the subjects discussed.

For further information, contact: Johanna Mikes, Policy and Program
Planning Division, Common Carrier Bureau at (202) 418-1535.

[^1]: *Implementation of the Non-Accounting Safeguards of Sections 271
    and 272 of the Communications Act of 1934, as amended*, CC Docket
    No. 96-149, First Report and Order and Further Notice of Proposed
    Rulemaking, 11 FCC Rcd 21905 (1996) (*Non-Accounting Safeguards
    Order*), at ¶¶ 55-56. The Act defines "interLATA service" as
    "telecommunications between a point located in a local access and
    transport area and a point located outside such area." 47 U.S.C. §
    153(21). "Telecommunications" is defined as "the transmission,
    between or among points specified by the user, of information of the
    user's choosing, without change in the form or content of the
    information as sent and received." 47 U.S.C. § 153(43). The Act
    defines "information service" as "the offering of a capability for
    generating, acquiring, storing, transforming, processing,
    retrieving, utilizing, or making available information via
    telecommunications, and includes electronic publishing, but does not
    include any use of any such capability for the management, control,
    or operation of a telecommunications system or the management of a
    telecommunications service." 47 U.S.C. § 153(20).

[^2]: *Non-Accounting Safeguards Order*, 11 FCC Rcd at 21932-33, ¶ 56.

[^3]: *See Implementation of the Non-Accounting Safeguards of Sections
    271 and 272 of the Communications Act of 1934, as amended*, CC
    Docket No. 96-149, Third Order on Reconsideration, 14 FCC Rcd 16299
    (1999) (*Third Reconsideration Order*). In the *Third
    Reconsideration Order*, the Commission reaffirmed that the statute
    does not exclude out-of-region interLATA information services from
    the section 272(a)(2) separate affiliate requirement. *Id.* 14 FCC
    Rcd at 16328, ¶ 41.

[^4]: Br. at 4 (emphasis in original). *See also* Br. at 12-13 (citing
    *Federal-State Joint Board on Universal Service*, CC Docket No.
    96-45, Report to Congress, 13 FCC Rcd 11501 (1998) (*Stevens
    Report*)).

[^5]: *See, e.g.*, CC Docket No. 96-149, Bell Atlantic/NYNEX Joint
    Comments (filed April 2, 1997); US WEST Reply Comments (filed April
    16, 1997); US WEST Petition for Reconsideration (filed Feb. 20,
    1997).

[^6]: *See* *Bell Atlantic Telephone Companies v. Federal Communications
    Commission*, No. 99-1479 (D.C. Cir. Oct. 27, 2000) (order granting
    motion for remand).

[^7]: *See, e.g., Non-Accounting Safeguards Order*, 11 FCC Rcd at
    21948-53, ¶¶ 88-98.

[^8]: *See Electronic Filing of Documents in Rulemaking Proceedings*, 63
    Fed. Reg. 24,121 (1998).