**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | CPD 98-40                    |
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| ATU Telecommunications           | ) |                              |
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| Request for Waiver of Sections   | * |                              |
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**ORDER**

**Adopted:** October 18, 2000 **Released:** October 26, 2000

By the Commission

**I. INTRODUCTION**

1.  On June 22, 1998, ATU Telecommunications[^1] (ATU) filed a petition
    pursuant to section 1.3 of the Commission's rules[^2] seeking a
    waiver of sections 69.106(b)[^3] and 69.124(b)(1)[^4] of the
    Commission\'s rules relating to the computation of the charge for
    the local switching rate element and the transport interconnection
    charge, respectively, in order to permit it to offer term and volume
    discounts for access to ATU\'s local switched network. [^5] ATU
    argues that the competition it faces in the Anchorage exchange
    market is a special and unique circumstance that warrants a
    waiver.[^6] The Municipality of Anchorage (Municipality), the
    Anchorage Municipal Assembly (Assembly), and the Independent
    Telephone and Telecommunications Alliance (ITTA), filed comments
    supporting ATU\'s petition.[^7] General Communication, Inc., (GCI)
    filed an opposition to the waiver petition.[^8] ATU and GCI filed
    reply comments.[^9]

2.  By this Order, we conditionally grant ATU's waiver petition. We
    conclude that, given the level of competition that exists in the
    Anchorage market, the public interest would be better served by the
    conditional grant of the requested waiver, rather than by strict
    adherence to the existing rules.

II\. BACKGROUND

3.  ATU is the incumbent local exchange carrier serving Anchorage,
    Alaska, a market of over 180,000 access lines, which constitute
    approximately one-half the access lines in Alaska.[^10] ATU's
    parent, Alaska Communications Systems, also owns the exchange
    providers in Fairbanks and Juneau, as well as in some other Alaska
    locations. ATU is a member of the National Exchange Carrier
    Association (NECA) common line pool, but files its own traffic
    sensitive tariffs, separate from its affiliated exchange carriers.

4.  GCI and AT&T Alascom provide service as competitive local exchange
    carriers (CLECs) in Anchorage. GCI provides service via a
    combination of its own facilities, unbundled network elements
    (UNEs), and resold ATU services. AT&T Alascom offers exchange
    service through resale of ATU's local services. GCI and AT&T Alascom
    also provide interstate and intrastate long-distance service in
    Alaska. ATU also has a long-distance resale affiliate. Other new
    entrants, including Alaska Fiber Star, L.L.C., DSL.net, and Level 3
    Communications, L.L.C., have filed applications for state
    certifications, and the first two have initiated interconnection
    negotiations with ATU. In addition, GCI operates the dominant cable
    television system in Anchorage and holds PCS and LMDS wireless
    licenses in Alaska.

***A. ATU Petition***

5.  ATU argues that the Commission should waive sections 69.106(b) and
    69.124(b)(1) because the competition it faces in the Anchorage
    exchange market is a special and unique circumstance that warrants a
    waiver.[^11] ATU also asserts that the public interest would be
    served by allowing it to offer volume and term discounts, which ATU
    states, will ultimately lead to lower consumer prices and stimulate
    greater competition. ATU maintains that it must be able to offer
    pricing incentives, such as volume and term discounts, in order to
    maintain its customer base. ATU states that permitting it to offer
    volume and term discounts will allow it to lower prices for its
    access services as warranted by competitive conditions in the
    Anchorage market.[^12]

6.  ATU indicates that GCI has unrestricted, unbundled access to
    ninety-five percent of the physical lines in ATU\'s service area,
    and that GCI is physically collocated in all seven of ATU\'s wire
    centers.[^13] ATU also states that it has implemented interim number
    portability to facilitate competition and GCI has been allocated
    specific NXX codes for assignment to its local exchange
    customers.[^14] ATU also points to a 1998 decision by the Alaska
    Public Utilities Commission that granted ATU transitional pricing
    flexibility for the Anchorage market while the Alaska Commission
    completed a comprehensive review of the State\'s telecommunications
    regulations governing the competitive local exchange market.[^15]
    ATU also cites the Alaska Commission's decision to remove
    restrictions previously placed on ATU and ATU's long-distance
    affiliate, because the Alaska Commission found that the public
    interest would be served by a decrease in regulation due to the
    level of competition in the local market.[^16]

***A. Comments***

7.  Supporting ATU\'s waiver petition, the Municipality, the Assembly,
    and ITTA generally assert that the Anchorage local exchange market
    is competitive.[^17] ITTA asserts that the Anchorage marketplace is
    irreversibly competitive, given the number of competitors and their
    investments in independent facilities and networks, and the
    market-opening decisions of the Alaska Commission. [^18] ITTA argues
    that the continued application of sections 69.106(b) and
    69.124(b)(1) is unwarranted and disserves the public interest
    because it deprives Anchorage customers of the benefits of
    competition.[^19]

8.  GCI asserts that ATU has impeded competition by failing to implement
    its obligations under the 1996 Act and obligations under an
    interconnection agreement signed with GCI pursuant to the 1996
    Act.[^20] GCI contends that the Commission should deny ATU\'s waiver
    request because ATU has failed to address the following issues: (1)
    lack of network trunking between ATU\'s and GCI\'s networks; (2)
    GCI\'s access to ATU\'s operations support systems (\"OSS\"); (3)
    non-payment for shared access; (4) non-payment for reciprocal
    compensation for local traffic; (5) lack of network notification;
    and (6) an interstate access tariff that restricts competition.[^21]
    GCI maintains that ATU should be denied greater pricing flexibility
    until these issues have been fully addressed.

***C. Replies***

9.  GCI states that competition is beginning to emerge in the Anchorage
    market, but argues that it is being delayed and thwarted by
    ATU.[^22] GCI also argues that ATU could drop its access rates under
    the Alaska Commission's revised rules governing the NECA carrier
    common line pool or elect to be a price cap carrier if it really
    wanted to drop access rates to respond to competition.[^23]

10. ATU states that GCI does not dispute the presence of
    facilities-based competition in the Anchorage market.[^24] Finally,
    ATU asserts that GCI is attempting to create a section 271-type
    proceeding and deter greater competition through regulatory
    delays.[^25]

11. On February 3, 2000, ATU filed an *ex parte* presentation[^26]
    providing updated evidence of the continuing growth of competition
    in Anchorage based on submissions by GCI and other CLECs to the
    Regulatory Commission of Alaska. ATU points out that GCI went from
    zero access lines subscribed and in service at the start of 1997 to
    approximately 40,667 access lines subscribed and in service by
    September 1999, approximately one-half of which serve residential
    customers.[^27] In addition, ATU notes that GCI has installed its
    own Class 5 switch and 122 fiber route miles to serve the Anchorage
    market.[^28] ATU states that it also faces resale competition from
    AT&T Alascom, which, according to ATU, provided service as of
    December 1998 to 10,906 residential customers. Based on this
    evidence, ATU asserts that the state of competition in Alaska is
    irreversible.[^29]

**III. DISCUSSION**

12. Under section 1.3, \"any provision of the Commission\'s rules may be
    waived by the Commission . . . or on petition if good cause therefor
    is shown.\"[^30] As interpreted by the courts, this requires that a
    petitioner demonstrate that \"special circumstances warrant a
    deviation from the general rule and that such a deviation will serve
    the public interest.\"[^31]

13. For the reasons discussed below, we find that ATU demonstrates good
    cause for us to waive sections 69.106(b) and 69.124 (b) and (c)[^32]
    and that it would be in the public interest to grant conditionally
    ATU\'s waiver request. As a matter of clarification, we note that in
    its petition, ATU requested a waiver of section 69.124(b)(1). The
    Commission had replaced section 69.124(b)(1) with new
    subsections (b) and (c).[^33] Therefore, because the waiver that ATU
    seeks is essentially designed to permit it to offer volume and term
    discounts on the total transport interconnection charge, we treat
    the ATU request as applying to subsections (b) and (c) of section
    69.124.

***A. Special Circumstances***

14. The record before us demonstrates that the level of competition in
    the Anchorage market is sufficient to conclude that special
    circumstances exist. Since 1997, GCI and AT&T Alascom have been
    approved to offer local exchange and exchange access services
    directly in competition with ATU. According to ATU, GCI served
    40,667 access lines as of September 1999;[^34] while AT&T Alascom
    served 10,906 access lines as of December 1998.[^35] This compares
    to approximately 141,070 access lines served by ATU as of September
    1999.[^36] According to ATU, of the 40,667 access lines that GCI
    served as of September 1999, 19,818 lines, or almost one-half of
    GCI\'s access lines, were serving residential customers.[^37]
    Similarly, all of the 10,906 access lines served by AT&T Alascom as
    of December 1998 were subscribed to residential customers.[^38]

15. While AT&T Alascom provides local service solely on a resale basis,
    GCI provides local service largely through unbundled loops that it
    has obtained from ATU and through the extensive network that GCI has
    deployed in the Anchorage area. Of GCI's 40,667 access lines in
    service as of September 1999, 8,652 were GCI\'s self-provisioned
    facilities, 28,773 were ATU UNEs, and 3,242 lines were served
    through resold services.[^39] In addition, GCI has physically
    collocated its own facilities in all seven of ATU\'s wire centers,
    from which GCI has UNE access to 95 percent of ATU\'s access lines.
    GCI has installed a Lucent 5ESS switch for its switching function
    and performs its own trunking using the 122-mile fiber optic ring
    that it has installed in Anchorage.

16. The regulatory prohibitions on volume and term discounts for
    switched access services contained in the access charge rules
    reflect the efforts to control the market power of the incumbent
    local exchange carriers (LECs) in the early 1980s, when the access
    charge rules were initially adopted. We find that the level of
    competition in the Anchorage exchange market exhibited in the
    present record provides sufficient evidence of special circumstances
    to warrant further consideration of whether the public interest
    would be served by a waiver of the Commission\'s rules to allow ATU
    to offer volume and term discounts on its local switching and
    transport interconnection charges. We turn to address that question
    now.

***B. Public Interest***

17. Based on the record before us, we find that the public interest
    would be served by granting ATU a waiver of sections 69.106(b) and
    69.124(b) and(c) to permit ATU to offer volume and term discounts
    for its local switching and transport interconnection charges,
    respectively. The Commission has recognized that, as competition
    develops in the access market, pricing flexibility would be
    necessary to avoid the potential adverse consequences of applying
    rules designed for monopolistic conditions to competitive markets.
    The Commission has recognized that volume and term discounts are
    generally legitimate means of pricing services to recognize the
    efficiencies associated with larger volumes and the certainty of
    longer-term arrangements.[^40] Restricting the offering of volume
    and term discounts in a competitive market could create a pricing
    umbrella for competitors, thereby depriving customers of the
    benefits of more vigorous competition and potentially undermining
    the efficiency goals of the Commission's rules by preventing the
    incumbent LEC from competing effectively even if it is the low cost
    service provider. [^41] Moreover, to the extent that strict
    application of the existing rules impedes ATU's ability to compete
    effectively, upward pressure could be created on rates for less
    competitive services, including those used by residential customers.
    The waiver should increase price competition in the Anchorage
    market, especially for the most competitive segments of the market.

18. In the *Pricing Flexibility Order*, the Commission permitted price
    cap LECs in a given Metropolitan Statistical Area to offer volume
    and term discounts on one day\'s notice[^42] if a price cap LEC
    demonstrates that its "competitors have made irreversible, sunk
    investments in the facilities needed to provide the service at
    issue."[^43] The Commission determined that a price cap LEC should
    be allowed Phase I pricing flexibility for, among other things,
    traffic‑sensitive services when it demonstrates that competitors, in
    aggregate, offer service over their own facilities to at least 15
    percent of incumbent LEC customer locations in the Metropolitan
    Statistical Area. The Commission also allowed price cap LECs pricing
    flexibility to offer volume and term discounts for dedicated
    transport and special access services (excluding the channel
    termination between the LEC end office and the end-user customer
    premise) if unaffiliated carriers were collocated in fifteen percent
    of the incumbent\'s wire centers in a Metropolitan Statistical Area
    and provided service using their own facilities or unbundled
    loops.[^44] While the policies applicable to price cap LECs are not
    dispositive of issues relating to rate-of-return LECs, they do offer
    probative guidance.

19. If ATU were a price cap LEC, it would have met the criteria for a
    price cap LEC to offer volume and term discounts for local switching
    offerings and would not have had to file a waiver petition to be
    able to offer volume and term discounts for local switching. As
    described above, GCI is collocated in 100 percent of ATU\'s wire
    centers in Anchorage. It has extensive facilities, including a
    switch, in Anchorage and offers service to Anchorage customers using
    over 8,000 of its own access lines and over 28,000 unbundled loops
    obtained from ATU. GCI thus actually provides service to over
    fifteen percent of the Anchorage market, not just offers service to
    that amount of the Anchorage market. Although ATU would have met the
    criteria for a price cap LEC to offer volume and term discounts on
    local switching, there is no merit to GCI\'s suggestion that ATU
    should elect price cap regulation in order to obtain relief from the
    Commission\'s rate-of-return rules. Price cap regulation is elective
    for ATU and such an election is not a requirement for granting a
    waiver to a rate-of-return LEC.

20. With respect to ATU's request for a waiver of section 69.124(b) and
    (c), the Commission has never addressed the issue of volume and term
    discounts for the transport interconnection charge. The local
    switching charge and the transport interconnection charge however,
    are both assessed on local switching minutes of use. Thus, both
    charges have a similar effect on the exchange access market. Given
    the level of competition demonstrated in the present record, we find
    that consistent treatment would serve the public interest by
    permitting ATU to respond to competitive developments in the
    Anchorage market, thereby increasing price competition. With the
    condition we attach to the grant of this waiver request,
    lower-volume customers will be protected from rate increases.

21. We conclude that it would be unlikely that ATU could drive
    competitors from the market by pricing its access services below
    cost. The level of competition that ATU faces from the presence of
    facilities-based carriers in the Anchorage market would preclude it
    from being able to recover any initial losses through higher prices
    in the future. Even if GCI were driven out of the market, its
    facilities could be acquired by a new entrant who would then be
    well-positioned to compete against ATU.[^45] Furthermore, the level
    of competition in the Anchorage market makes it unlikely that ATU
    could lock-up the market and preclude competition from developing
    further. GCI is a well-established competitor that has had the
    freedom to offer volume and term discounts while ATU has not.
    Therefore, customers should benefit from the additional competition
    that ATU will bring to the market when it can offer volume and term
    discounts.

22. Because ATU is a rate-of-return regulated carrier, we conclude that
    we must attach a condition to the waiver. We therefore require ATU
    at the time it introduces volume and term discounts pursuant to this
    waiver, and at each subsequent annual filing it makes, to calculate
    a rate using the requirements of section 69.106(b) and section
    69.124(b) and (c). The rate so calculated will be the ceiling rate
    for that nondiscounted access service offering. Without this
    condition, ATU, under the rules for rate-of-return LECs, could
    legally increase rates to access customers that did not qualify for
    a discount offering. This condition is similar to the requirement
    that price cap LECs obtaining Phase I pricing flexibility must also
    maintain their existing rates subject to price caps. ATU should not
    be adversely affected, because it states in its waiver petition that
    it has no incentive to raise rates in any segment of its market in
    order to compensate for revenues lost through volume and term
    discounts. We also note that section 202 of the Act applies to ATU's
    access service offerings, which will preclude ATU from offering
    preferential treatment to its long-distance affiliate.

23. We find that GCI's assertions that ATU has impeded competition in
    the Anchorage market by failing to implement its obligations under
    the 1996 Act and obligations under an interconnection agreement
    signed with GCI do not lead us to conclude that a denial of ATU's
    petition is warranted. ATU states that since GCI filed its
    opposition, many of the issues that GCI raised have been resolved.
    ATU has processed orders from GCI for two DS3 trunks in each of
    ATU\'s wire centers to connect ATU\'s network to GCI\'s fiber
    ring.[^46] With respect to OSS, ATU has provided competitors with
    electronic access to customer databases and is upgrading its network
    to enable electronic access to ordering systems.[^47] ATU generally
    completes orders for wholesale and enhanced services within 24
    hours, and fulfills orders requiring network reconfiguration within
    five business days.[^48] In addition, ATU and GCI have resolved
    their reciprocal compensation issues by entering into a
    "bill-and-keep" arrangement.[^49] Furthermore, ATU has established
    procedures to ensure that network changes are publicly disclosed in
    accordance with the Commission's network change notification
    rules.[^50] While ATU admits that all of the outstanding
    interconnection issues between ATU and GCI have not yet been fully
    resolved, the level of competition in the Anchorage market and the
    progress made on resolving the outstanding issues warrants granting
    ATU the pricing flexibility it seeks. Finally, we conclude that
    GCI's assertion that ATU's access tariffs are anticompetitive
    because they assess an entrance facility charge when ATU transfers
    access traffic to a competitor's network is unrelated to the local
    competition underlying the waiver request and therefore does not
    lead us to deny the requested waiver. If GCI wishes to pursue this
    issue further, it may either petition against one of ATU's tariff
    filings or file a complaint pursuant to section 208 of the Act.[^51]

24. In conclusion, we believe that grant of the ATU petition should
    bring additional benefits of competition to Anchorage consumers.
    Accordingly, for the reasons set forth above, we find that grant of
    the requested waiver, subject to the condition noted herein, will
    serve the public interest.

**IV. ORDERING CLAUSES**

25. ACCORDINGLY, IT IS ORDERED, pursuant to sections 4(i) and (j) and
    201-205 of the Communications Act of 1934, as amended, 47 U.S.C. §§
    154(i) and (j) and 201-205, and section 1.3 of the Commission\'s
    rules, 47 C.F.R. § 1.3, the petition for waiver of sections 106 and
    124 filed by ATU Telecommunications IS GRANTED Subject to the
    Conditions Described herein.

26. IT IS FURTHER ORDERED, that the opposition to the waiver request
    filed by General Communication Incorporated IS DENIED.

27. IT IS FURTHER ORDERED that this Order SHALL BE EFFECTIVE upon
    release in accordance with 47 C.F.R. § 1.103.

FEDERAL COMMUNICATIONS COMMISSION

Magalie Roman Salas

Secretary

[^1]: When the waiver petition was filed, ATU was owned by the
    Municipality of Anchorage. It was subsequently sold to Alaska
    Communications Systems.

[^2]: 47 C.F.R. § 1.3.

[^3]: 47 C.F.R. § 69.106(b), which provides:

    > The per minute charge described in paragraph (a) of this section
    > shall be computed by dividing the projected annual revenue
    > requirement for the Local Switching element, excluding any local
    > switching support received by the carrier pursuant to section
    > 54.301 of this chapter, by the projected annual access minutes of
    > use for all interstate or foreign services that use local exchange
    > switching facilities.

[^4]: 47 C.F.R. § 69.124(b)(1), which was replaced by new subsections
    (b) and (c). Subsection (b)(1) provided:

    > For telephone companies not subject to price cap regulation, the
    > interconnection charge shall be computed by subtracting entrance
    > facilities, tandem-switched transport, direct-trunked transport,
    > and dedicated signaling transport revenues from the part 69
    > transport revenue requirement, and dividing by the total
    > interstate local switching minutes.

[^5]: ATU Waiver Request, CCB/CPD 98-40, (filed June 22, 1998) (ATU
    Petition).

[^6]: *Id.* at 1.

[^7]: Comments of the Municipality of Anchorage, CCB/CPD 98-40, (filed
    June 13, 1998) (Municipality Comments); Comments of the Anchorage
    Municipal Assembly, CCB/CPD 98-40, (filed July 14, 1998) (Assembly
    Comments); Comments of the Independent Telephone &
    Telecommunications Alliance, CCB/CPD 98-40, (filed July 13, 1998)
    (ITTA Comments).

[^8]: GCI\'s Opposition to Petition for Waiver, CCB/CPD 98-40, (filed
    July 13, 1998) (GCI Opposition).

[^9]: Reply of GCI, CCB/CPD 98-40, (filed July 24, 1998) (GCI Reply);
    ATU's Reply to Opposition of GCI, CCB/CPD 98-40, (file July 24,
    1998) (ATU Reply).

[^10]: ATU Petition at 3.

[^11]: ATU Petition at 1.

[^12]: *Id*. at 2-4.

[^13]: *Id*. at 3.

[^14]: *Id*.

[^15]: *Id*. at 5-6.

[^16]: *Id*.

[^17]: Municipality Comments at 2; Assembly Comments at 2; ITTA Comments
    at 2-10. The Municipality and the Assembly also supported the
    Petition because of the potential impact the waiver request would
    have had on the value of ATU, which was being sold by the city of
    Anchorage at the time ATU filed its Petition. *See* Municipality
    Comments at 1-2 and Assembly Comments.

[^18]: *See generally* ITTA Comments.

[^19]: *Id*.

[^20]: GCI Opposition at 1.

[^21]: *Id*. at 1-2.

[^22]: GCI Reply at 2. GCI also argues that the potential sale value of
    ATU should not have a bearing on the disposition of the waiver
    request.

[^23]: *Id.*

[^24]: ATU Reply at 1.

[^25]: *Id*. at 2.

[^26]: Letter from Nandan M. Joshi, Esq., to Magalie Roman Salas,
    Secretary, FCC, dated Feb. 3, 2000 (ATU Presentation) at 3; *see
    also*, letter from Nandan M. Joshi, Esq., to Magalie Roman Salas,
    Secretary, FCC, dated Mar. 1, 2000.

[^27]: *Id*. at 6.

[^28]: *Id.* at 5.

[^29]: *Id*. at 10.

[^30]: 47 C.F.R. § 1.3.

[^31]: *Northeast Cellular Telephone Co. v. FCC*, 897 F.2d 1164 (D.C.
    Cir. 1990) (citing *Wait Radio v. FCC*, 418 F.2d 1153, 1158 (D.C.
    Cir. 1969), *cert. denied*, 409 U.S. 1027 (1972)).

[^32]: 47 C.F.R. § 69.124(b) and (c), which provide:

    > \(b\) If the use made of the local exchange carrier\'s switched
    > access network includes the local switch, but not local transport,
    > the interconnection charge assessed pursuant to paragraph (a) of
    > this section shall be computed by subtracting entrance facilities,
    > tandem-switched transport, direct-trunked transport, and dedicated
    > signaling transport revenues, as well as any interconnection
    > charge revenues that the local exchange carrier anticipates will
    > be reassigned to other, facilities-based rate elements in the
    > future, from the part 69 transport revenue requirement, and
    > dividing by the total interstate local switching minutes.
    >
    > \(c\) If the use made of the local exchange carrier\'s switched
    > access network includes local transport, the interconnection
    > charge to be assessed pursuant to paragraph (a) of this section
    > shall be computed by dividing any interconnection charge revenues
    > that the local exchange carrier anticipates will be reassigned to
    > other, facilities-based rate elements in the future by the total
    > interstate local transport minutes, and adding thereto the per
    > minute amount calculated pursuant to paragraph (b) of this
    > section.

[^33]: Access Charge Reform, 60 Fed. Reg. 66029-30 (Dec. 17, 1997).

[^34]: ATU Presentation at 7 (citing GCI\'s reports to the Alaska state
    commission between September 1997 and September 1999 (\"GCI Access
    Line Reports\")).

[^35]: *Id.* at 9 (citing AT&T Alascom\'s reports to the Alaska state
    commission between September 1997 and September 1999 (\"AT&T Alascom
    Access Line Reports\")).

[^36]: *Id.* at 7.

[^37]: *Id.* at 8 (citing GCI Access Line Reports).

[^38]: *Id.* at 9 (citing AT&T Alascom Access Line Reports).

[^39]: *Id.* at 7 (citing GCI Access Line Reports).

[^40]: Expanded Interconnection with Local Telephone Company Facilities,
    Memorandum Opinion and Order, 9 FCC Rcd 5154, 5200 (1994).

[^41]: Expanded Interconnection with Local Telephone Company Facilities,
    Report and Order and Notice of Proposed Rulemaking, 7 FCC Rcd 7369,
    7454 (1992).

[^42]: Access Charge Reform, Fifth Report and Order and Further Notice
    of Proposed Rulemaking, 14 FCC Rcd 14221, 14234 (1999) (*Pricing
    Flexibility Order*).

[^43]: *Id*.

[^44]: 47 C.F.R. § 69.713(b). Rate-of-return LECs can offer volume and
    term discounts on transport services under specified conditions, 47
    C.F.R. § 69.111(i) and 69.112(f).

[^45]: *Pricing Flexibility Order*, 14 FCC Rcd at 14264; *see also*
    *Incumbent LEC Regulatory Treatment Order*, 12 FCC Rcd at 15818-19
    (even if a BOC interLATA affiliate could drive one of the three
    large IXCs from the market, that IXC\'s fiber-optic transmission
    capacity would remain intact, and another firm could buy that
    capacity at a distress sale and immediately undercut the
    affiliate\'s noncompetitive prices).

[^46]: ATU Presentation at 11; Bowman Affidavit at ¶ 3.

[^47]: Bowman Affidavit at ¶ 4.

[^48]: *Id*.

[^49]: *Id*. at ¶ 5.

[^50]: ATU Presentation at 8; Bowman Affidavit at ¶ 6.

[^51]: 47 U.S.C. § 208. Parties would be well advised to contact the
    Market Disputes Resolution Division of the Enforcement Bureau prior
    to filing a section 208 complaint.