**PUBLIC NOTICE**![](media/image1.png){width="0.6541666666666667in"
height="0.6604166666666667in"}

**Federal Communications Commission**

**445 12th St., S.W.**

**Washington, D.C. 20554**

# DA 99-1853

**COMMENTS REQUESTED IN CONNECTION WITH COURT REMAND OF AUGUST 1998
ADVANCED SERVICES ORDER**

**CC DOCKET NOS. 98-11, 98-26, 98-32, 98-78, 98-91, 98-147**

**Released September 9, 1999**

In an August 7, 1998 decision, the Commission considered petitions filed
by four Bell Operating Companies (BOCs) requesting that the Commission
forbear from applying the obligations of section 251(c) to advanced
services in view of section 706(a) of the Telecommunications Act of
1996. In that Memorandum Opinion and Order (Advanced Services Order),
the Commission concluded that incumbent local exchange carriers (LECs)
are subject to the market-opening requirements of section 251 of the
Communications Act of 1934, as amended by the Telecommunications Act of
1996, in their provision of advanced services.[^1]

More specifically, the Commission determined that incumbent LECs are
subject to the interconnection obligations of section 251(a) and
251(c)(2) with respect to both their circuit-switched and
packet-switched networks. In the Advanced Services Order, the Commission
determined, among other things, that incumbent LECs are subject to the
obligations set forth in section 251(c) of the Act in connection with
the offering of advanced services that employ digital subscriber line
(DSL) and packet-switching technologies. The Commission based that
conclusion on the determination that those services were either
telephone exchange service or exchange access---the core service
categories that define a LEC. At that time, the Commission did not
determine into which of those two service categories advanced services
fall, noting instead that related issues would be addressed in other
proceedings.

Following adoption of the Advanced Services Order, U S WEST
Communications, Inc. (U S WEST) sought review in the United States Court
of Appeals for the District of Columbia Circuit, seeking reversal of the
Commission's holding that advanced services are either telephone
exchange or exchange access. In response, the Commission requested the
opportunity to consider further the issues raised by U S WEST because
some of the statutory construction arguments advanced by U S WEST in its
appellate brief had been presented only summarily and in truncated form
before the agency. The Commission therefore asked that the court grant
it the opportunity to address the threshold question of statutory
interpretation based on a more complete administrative record. On August
25, 1999, the court granted the Commission's request and remanded the
matter back to the Commission.[^2]

We have placed a copy of U S WEST's appellate brief in the
above-captioned dockets. To aid the Commission in meeting its commitment
to the court to consider and address within 120 days the issues raised
by U S WEST, the Common Carrier Bureau issues this Public Notice seeking
comment on the arguments raised by U S WEST 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.  Do xDSL-based advanced services constitute either "telephone
    exchange service" or "exchange access" within the meaning of the
    Communications Act? U S WEST argues that DSL-based services do not
    constitute telephone exchange service because they do not begin and
    end within a telephone exchange or set of exchanges in the same
    local area; do not use or interconnect with the traditional
    circuit-switched public telephone network; do not permit
    "any-to-any" local intercommunications service; and are not covered
    by the exchange service charge. We seek comment on each of these
    contentions and the proper interpretation of these terms as they are
    used in the first half of the definition of "telephone exchange
    service," 47 U.S.C. § 153(47)(A).

2.  What is the legal significance of the 1996 Act's addition to the
    definition of "telephone exchange service" of "comparable service
    provided through a system of switches, transmission equipment or
    other facilities . . . by which a subscriber can originate and
    terminate a telecommunications service"? U S WEST argues that
    Congress' use of the word "comparable" in its definition of
    telephone exchange service was meant to include those services that
    are functionally similar to and can substitute for switched local
    service. We seek comment as to the proper definition of this term
    and whether "comparable service provided through a system of
    switches, transmission equipment, or other facilities" is limited to
    a particular technology or technologies or has other defining
    characteristics.

3.  Additionally, we seek comment on U S WEST's contention that advanced
    services are not "exchange access" because they are used to
    originate and terminate Internet traffic and not telephone toll
    service. In this regard, is "exchange access" a subset of "telephone
    exchange service" or a distinct category of service? Further, U S
    WEST argues that DSL-based services are "information access"
    services. We ask parties to address whether and in what way that
    category of service differs from "information services"? If
    DSL-based services are classified as "information access," can those
    services nonetheless be information services, telephone exchange
    services, or exchange access? In addition, we request comment
    regarding the extent to which these categories of service are
    mutually exclusive. We ask that parties address these issues in view
    of the relevant statutory language and Commission and judicial
    precedent.

4.  We also request comment as to the proper scope of the requirements
    of section 251(c) upon incumbent LECs generally and in their
    provision of advanced services specifically. Does that section, for
    instance, apply to all telecommunications services and facilities
    offered by an incumbent LEC regardless of whether the services or
    related facilities constitute telephone exchange service or exchange
    access? In this regard, how does the fact that section 251(c) sets
    forth obligations of incumbent local exchange *carriers*, and is not
    on its face limited to particular telecommunications *services,*
    affect the provision's applicability to incumbent LEC offerings
    other than telephone exchange service or exchange access?

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 September 24, 1999, and reply comments not later than October 1,
1999. All filings should refer to the Commission docket numbers, CC
Docket Nos. 98-11, 98-26, 98-32, 98-78, 98-91, and 98-147. Comments may
be filed using the Commission's Electronic Comment Filing System (ECFS)
or by filing paper copies. 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 choosing to file by paper
must file an original and two copies of each pleading with the
Secretary, Federal Communications Commission, 445 12th Street, S.W.,
Washington, D.C. 20554. A copy should also be sent to Janice Myles,
Common Carrier Bureau, Policy and Program Planning Division, Federal
Communications Commission, Room 5-C327, 445 12th Street, S.W.,
Washington, D.C. 20554. One copy of all pleadings should also be sent to
the Commission's contractor for public service records duplication, ITS,
1231 20^th^ Street, N.W., Washington, D.C. 20036. Comments and reply
comments will be available for public inspection and copying during
normal business hours in the FCC Reference Center, 445 12th Street,
S.W., Washington, D.C. 20554. Copies may also be obtained from ITS at
1231 20^th^ Street, N.W., Washington, D.C. 20036 or by calling ITS at
(202) 857-3800 or faxing ITS at (202) 857-3805.

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. § 1.1206.

Common Carrier Bureau contact: Staci Pies, (202) 418-1580.

[^1]: *See* *Deployment of Wireline Services Offering Advanced
    Telecommunications Capability*, CC Docket No. 98-147 et al.,
    Memorandum Opinion and Order and Notice of Proposed Rulemaking, 13
    FCC Rcd 15280 (1998).

[^2]: *See* *U S WEST Communications, Inc. v. Federal Communications
    Commission*, No. 98-1410 (D.C. Cir. Aug. 25, 1999) (order granting
    motion for remand).