DA 01-734

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**March 23, 2001**

**UPDATED FILING REQUIREMENTS FOR BELL OPERATING COMPANY APPLICATIONS**

**UNDER SECTION 271 OF THE COMMUNICATIONS ACT**

This Public Notice updates the general procedural requirements that
apply to the Commission's processing of applications by Bell Operating
Companies (BOCs) for authorization to provide in-region, interLATA
service pursuant to section 271 of the Communications Act of 1934, as
amended (the Act).[^1] In prior Public Notices, the Commission has set
forth procedural requirements and policies relating to the processing of
such BOC applications.[^2] This Public Notice makes further minor
revisions to the procedural requirements set forth in those earlier
Public Notices. In addition, in the interests of clarity and for the
convenience of parties, this Public Notice restates the
previously-adopted procedural requirements and policies, and thereby
serves as a single, current reference for the procedural requirements
and policies relating to the Commission's processing of section 271
applications.

A.  **[Application Filing Requirements]{.underline}**

Under section 271, the a Bell Operating Company may file an application
with the Commission seeking authorization to provide interLATA services
originating in any in-region state or states. By "application," the
Commission means: (1) a stand-alone document entitled "Brief in Support
of Application by \[Bell company name\] for Provision of In-Region,
InterLATA Services in \[name of state(s)\]"; and (2) any supporting
documentation. The content of both parts of the application is addressed
later in this Public Notice.

Under the revised procedures described in this Public Notice, applicants
must file each section 271 application with the Commission as follows:

(1) Applicants must file an original and one copy of each section 271
    application with the Office of the Secretary at the Federal
    Communications Commission in paper form. The applicant must also
    submit the application on a CD-ROM[^3] in read-only format, as
    described in paragraph (3) below, to the Office of the Secretary.
    The original, the copy and the CD-ROM in read-only format should be
    sent to Magalie Roman Salas, Secretary, Office of the Secretary,
    Federal Communications Commission, 445 12th Street, S.W., Room
    TW-B204, Washington, D.C. 20554.

(2) An applicant must also submit twelve (12) copies of the section 271
    application to Janice Myles, Policy and Program Planning Division,
    Common Carrier Bureau, Federal Communications Commission, 445 12th
    Street, S.W., Room 5-C327, Washington, D.C. 20554. Copies for the
    Common Carrier Bureau may be filed in part paper and part read-only
    CD-ROM format, as described in paragraph (3) below.

(3) Subject to the terms of paragraphs (1) and (2) above, an applicant
    is permitted to file the Common Carrier Bureau's copies exclusively
    on CD-ROM in read-only format except the following: (a) Applicant's
    Brief in Support; (b) any affidavits; (c) any exhibits referenced by
    and attached directly to such affidavits; (d) the statement of
    generally available terms (SGAT) of interconnection under section
    252 and any amendments thereto; and (e) any performance data the
    applicant submits to demonstrate compliance with section 271. The
    documents referenced in items (a) through (e) must be filed in paper
    form. All other documents, including operations support systems
    (OSS) guides and manuals that a BOC provides to competitive local
    exchange carriers and records from state proceedings for which the
    BOC is filing its application that do not fall within items (a)-(e)
    above, may be filed on CD-ROM subject to the terms of paragraphs (1)
    and (2) above. An applicant nonetheless should be prepared to
    provide a paper copy of any document submitted in electronic form
    within approximately 24 hours of any request from the Common Carrier
    Bureau.

> Any CD-ROM in read-only format submitted to the Commission should be
> formatted in Word 97, Excel 97, PowerPoint, PDF, or TIF format, or
> such other format as may be approved by the Common Carrier Bureau. For
> each set of CD-ROM(s) submitted, the applicant must also submit in
> paper form a detailed index identifying the title, date, location of,
> and subjects covered by each supporting document submitted in CD-ROM
> format. This index may be combined with the table of appendices
> submitted as part of an applicant's Brief in Support, and should
> specify the location of any documentation, whether submitted on CD-ROM
> or paper form.

(4) To the extent that the application, or a comment or reply submission
    by any party, includes confidential information or comments on
    confidential information that another participant has submitted, the
    party must submit the following versions of the relevant document
    (*i.e.*, the brief, affidavit or other attachment):[^4]

> \(i\) A [redacted version]{.underline}, stamped "Redacted---For Public
> Inspection" on its cover page and on pages containing redacted
> material, and clearly indicating the redacted areas on the relevant
> pages. An original plus one copy of the redacted version must be
> submitted (along with the rest of the application, comment or reply)
> to the Office of the Secretary in paper form, and twelve (12) copies
> must be provided to Janice Myles, Policy and Program Planning
> Division, at the address listed above in paragraph (2). The redacted
> filing also must be submitted on CD-ROM (or 3.5 inch diskette) in
> read-only format. Copies of submissions containing redacted material
> must also be submitted to the Department of Justice and state
> commissions, consistent with the general procedures outlined in this
> Section A (governing applications) and in Section D (governing
> comments and replies).
>
> \(ii\) A [confidential version]{.underline}, stamped
> "Confidential---Subject to Protective Order," consisting only of the
> pages containing confidential information. The confidential version
> must be submitted with a cover letter that identifies clearly the
> page(s) or portion(s) of the submission that contain redacted
> material, and lists the name, address, and phone number of the person
> who will address inquiries regarding access to the confidential
> information by other participants in the proceeding (subject to the
> terms of any applicable protective order). One copy of the cover
> letter and confidential submission should be delivered in person to
> the Office of the Secretary, 445 12th Street, S.W., Room TW-B-204, to
> Magalie Roman Salas, Secretary; or, in her absence, to William F.
> Caton, Deputy Secretary. In addition, the party should deliver two
> copies of the cover letter and confidential material (or as many
> copies of the material as otherwise requested by the recipients) to
> the Common Carrier Bureau staff member and Department of Justice
> contact identified in the Initial Public Notice as the designated
> recipients of confidential material.

The applicant must also submit a completely paper copy of the
application simultaneously to: (a) the Department of Justice c/o Donald
J. Russell, Telecommunications Task Force, Antitrust Division, Suite
8000, 1401 H Street, N.W., Washington, D.C. 20530; (b) the relevant
state regulatory commission(s); and (c) the Commission's copy
contractor, International Transcription Service, Inc. (ITS), 445 Twelfth
Street, S.W., CY-B402, Washington, D.C. 20554, tel. 202/857-3800.

Applications will be available for public inspection during regular
business hours in the Reference Information Center of the Federal
Communications Commission, Room CY-A257, 445 12th Street, S.W.,
Washington, D.C. 20554. We also require the applicant to post
application materials and all of its subsequent submissions (*e.g.*,
reply comments and *ex parte* filings), within 24 hours of submission,
on its own Internet home page and to indicate the applicable URL where
the materials are located in its Brief in Support. This URL will also be
accessible through a link on the Commission's Internet home page at
[http://www.fcc.gov](http://www.fcc.gov/).

B.  **[Preliminary Matters]{.underline}**

The Commission expects that a section 271 application, as originally
filed, will include all of the factual evidence on which the applicant
would have the Commission rely in making its findings. In order to meet
its burden of proof, the applicant may submit new evidence after filing
solely to rebut arguments made or facts submitted by other commenters.
Such new evidence may cover only the period placed in dispute by
commenters, and thus should not relate to performance after the filing
of comments by third parties (*i.e.,* generally the 20th day of the
proceeding).[^5] It generally will not be appropriate for an applicant
to make any part of its initial *prima facie* showing for the first time
in reply comments or in *ex parte* submissions, although there may be
limited exceptions to this rule. [^6] We emphasize that, as a general
matter, it is highly disruptive to our processes to have a record that
is constantly evolving.

All factual assertions made by an applicant, or any commenter, must be
supported by credible evidence, or they may not be entitled to any
weight. Such factual assertions, as well as expert testimony, submitted
by any party must also be supported by an affidavit or verified
statement of a person or persons with personal knowledge thereof.

Applicants and participants in section 271 proceedings also have an
obligation to present their position in a clear and concise manner. In
the section 271 proceedings conducted so far, the applications -- as
well as some of the subsequent responsive filings -- have been
voluminous. In addition, certain parties have included substantive
arguments in affidavits or other supporting materials only, and not in
their legal briefs. As a result, in some cases, we have found it
burdensome and time-consuming to determine the positions of parties.
Because of the shortness of the 90-day review period, we believe that it
is necessary to make the section 271 review process as efficient as
possible, consistent with the requirements of the statute. We therefore
require applicants and commenting parties to make all substantive legal
and policy arguments in a legal brief (*i.e.*, the Applicant's Brief in
Support; comments in opposition or support; reply comments; *ex parte*
filings). The Commission retains the authority to strike, or to decline
to consider, substantive arguments that appear only in affidavits or
other supporting documentation.[^7] To facilitate the Commission's
review, we urge applicants and participants to include within each
submission a table of contents that identifies clearly each particular
checklist item number, or other requirement identified in the statute,
to which their filing pertains, as well as the page number where the
discussion of that item, or requirement, begins.

We recognize that the question of whether an applicant has satisfied the
requirements of section 271 raises numerous complex and fact-intensive
issues. Nonetheless, given the limited period in which the agency has to
review such applications, we have established page limits for the
Applicant's Brief in Support and for third party comments and replies.
Despite these page limits, we expect that applicants and other
participants in section 271 proceedings will continue to provide expert
testimony in support of the positions articulated in their briefs, to
clarify detailed factual issues, and, through the use of affidavits and
other supporting documentation, to support fully the factual and legal
assertions made in their legal briefs.

Because the statute affords us only 90 days to review the application,
we encourage the BOC, and interested third parties, to ensure that
factual disputes are brought before and addressed by the relevant state
commission prior to submitting its application with this Commission.

C.  **[Content of Applications]{.underline}**

Section 271 of the Act requires BOCs to demonstrate compliance with
section 271 on a state-by-state basis. A BOC may, however, choose to
file an application covering multiple states. If the BOC files a
multi-state application, the Commission will determine for each state
whether the application complies with each item of the section 271
competitive checklist and other requirements of the statute.
Accordingly, the applicant must make state-specific evidentiary showings
and separately identify each state's relevant performance data. The
applicant may choose, however, to describe general processes applicable
to multiple states together in one affidavit. For multi-state
applications, the Commission retains discretion to extend the page limit
on an applicant's Brief in Support, as well as responsive pleadings, to
ensure that the applicant has sufficient space to present factual and
legal assertions of satisfaction with the statutory requirements for
each state.

We stress again that, as originally filed, a section 271 application
should include all of the factual evidence on which the applicant asks
the Commission to rely in making its findings thereon. Generally, an
applicant shall not incorporate by reference entire documents or
significant portions of documents that were filed in other proceedings,
such as comments, reply comments, or supplemental materials filed or
arguments made in a previous section 271 proceeding. A BOC that
previously filed an application for a particular state that was rejected
in a Commission order, however, may rely upon those portions of the
Commission's decision finding compliance with Section 271 when
reapplying for section 271 approval in that state. Under such
circumstances, the BOC may incorporate by reference portions of the
record in the previous proceeding.[^8] Although an applicant is
permitted to note arguments that were presented in earlier filings, the
BOC must provide a complete recitation in its current filing of any
argument that it wishes the Commission to consider. We have given BOCs
substantial leeway with respect to the evidence they present to satisfy
the checklist. Although our orders have provided guidance on which types
of evidence we find more persuasive, we reiterate that we remain open to
approving an application based on other types of evidence if a BOC can
persuade us that such evidence demonstrates nondiscriminatory treatment
and other aspects of the statutory requirements. In past orders, we have
found that the most probative evidence of nondiscrimination is actual
commercial usage, and "\[p\]erformance measures are an especially
effective means of providing us with evidence of the quality and
timeliness of the access provided by a BOC to requesting carriers."[^9]

Simply put, we would find it most persuasive if, in its initial
application, a section 271 applicant relying on performance data:

> \(1\) provided sufficient performance data to supports its contention
> that the statutory requirements are satisfied;
>
> \(2\) identified the facial disparities between the applicant's
> performance for itself and its performance for competitors;
>
> \(3\) explained why those facial disparities are anomalous, caused by
> forces beyond the applicant's control (e.g., competitive LEC errors)
> or have no meaningful adverse impact on a competitive LEC's ability to
> obtain and serve customers; *and*
>
> \(4\) provided the underlying data, analysis and methodologies
> necessary to enable the Commission and commenters to meaningfully
> evaluate and contest the validity of the applicant's explanations for
> performance disparities, including, for example, carrier specific
> carrrier-to-carrier performance data.

We believe these steps should be readily apparent from our previous
orders, but we provide them in the interest of removing doubt about what
we would find most persuasive to show that it is more likely than not
that an applicant has satisfied the requirements of section 271.

All section 271 applications shall conform to the Commission's general
rules relating to applications.[^10] As noted above, applications shall
have two parts: (1) a "Brief in Support of Application by \[Bell company
name\] for Provision of In-Region, InterLATA Services in \[name of
state(s)\]"; and (2) any supporting documentation, such as affidavits.
The Applicant's Brief in Support may not exceed 125 pages. The
Commission retains discretion to adjust this page limit for good cause
shown, such as when the application addresses multiple states. The table
of contents, summary of arguments, list of agreements, list of
appendices, contact person for confidential submissions, Anti-Drug Abuse
Act certification, and affidavits (items (a), (b), (c), (h), (i), (j)
and (k) below) shall not be counted in determining the length of the
Brief in Support. There is no page limit on supporting documentation,
but, as discussed above, substantive legal or policy arguments not fully
asserted in the Brief in Support may, at the Commission's discretion, be
disregarded. In addition, the applicant must submit on paper a detailed
table of appendices identifying the title, date, location of, and
subjects covered by each supporting document submitted in CD-ROM format.

The Brief in Support should contain the following items:

(a) a table of contents;

(b) a concise summary of the substantive arguments presented in the
    Brief;[^11]

(c) a statement identifying how the applicant meets the requirements of
    section 271(c)(1) for the applicable state(s), including a list of
    the specific interconnection agreements on which the applicant bases
    its application, and the status of any federal court challenges to
    these agreements pursuant to section 252(e)(6);

(d) a statement summarizing the status and findings of the relevant
    state proceedings (if any) examining the applicant's compliance with
    section 271 or portions thereof;

(e) all legal and factual arguments that the three requirements of
    section 271(d)(3) have been met, supported as necessary with
    selected excerpts from the supporting documentation (with
    appropriate citations);[^12]

(f) a list of all appendices (including affidavits) and the location of
    and subjects covered by each of those appendices;

(g) the name, address, and phone number of the person who will address
    inquiries relating to access (subject to the terms of any applicable
    protective order) to any confidential information submitted by the
    applicant;

(h) an Anti-Drug Abuse Act certification as required by 47 C.F.R. §
    1.2002; and

(i) an affidavit signed by an officer or duly authorized employee
    certifying that all information supplied in the application is true
    and accurate to the best of his or her information and belief.[^13]

The name of the applicant, the date the application is filed, and the
state(s) to which it relates should appear in the upper right-hand
corner of each page of the Brief in Support.

As for the supporting documentation, we require that it contain those
portions of the public record of the relevant state proceedings *upon
which the applicant is relying* for Commission approval or has cited in
its Brief in Support. This would likely include, among other relevant
materials, state commission orders, tariffs and interconnection
agreements. The applicant should avoid, to the extent possible, filing
non-relevant portions of the record from the state proceeding. The
applicant nonetheless should be prepared to submit a copy of other
portions of the public record of the relevant state proceedings within
approximately 24 hours of any request from the Common Carrier Bureau, in
either paper or electronic form as requested by the Bureau staff. In
addition, supporting documentation (including any affidavits from
subject matter experts) shall be provided in appendices, separated by
tabs and divided into volumes as appropriate. Each volume shall contain
a table of contents that lists the subject of each tabbed section of
that volume.

D.  **[Comments and Replies By Interested Third Parties]{.underline}**

After an application has been filed, the Common Carrier Bureau will
issue a public notice ("Initial Public Notice") establishing the
specific due dates for comments and replies by interested third parties.
Comments generally will be due approximately 20 days after the Initial
Public Notice is issued, and replies generally will be due 45 days after
the Initial Public Notice is issued. The Commission retains discretion
to adjust the due dates for comments and replies on a case-by-case
basis**,** depending upon the circumstances of a particular application,
but in all instances will seek to ensure that interested third parties
have sufficient time to review and comment on each application. The
Commission strongly discourages, and will take appropriate steps to
prevent, an applicant from attempting to limit the time for interested
third parties to review an application (*e.g.*, by filing on a Friday or
the day before a national holiday).

For both comments and reply submissions, the name of the party, the name
of the applicant, and the state(s) to which the submission relates
should appear in the upper right-hand corner of each page. These filings
shall also include a table of contents, a concise summary of the
arguments presented in the comments or replies, and a list of all
appendices and the location of and subjects covered by each of those
appendices. None of these portions of the comments shall be counted in
determining the length of these submissions. As discussed above, the
table of contents should identify clearly each particular checklist
item, or other requirement identified in the statute, to which the
filing pertains, as well as the page number where the discussion of that
item or requirement begins. Comments may not exceed 100 pages, and
replies may not exceed 50 pages. The Commission retains discretion to
adjust these page limits for good cause shown, such as when comments
address a multi-state application.

When filing comments or replies, parties (including commenters, the
Department of Justice, and the relevant state commission(s)) should
submit: (1) an original, four copies and a CD-ROM or 3.5 inch computer
diskette containing the filing to Magalie Roman Salas, Secretary, Office
of the Secretary, Federal Communications Commission, 445 12th Street,
S.W., Room TW-B204, Washington, D.C. 20554; and (2) twelve (12) copies
to Janice Myles, Policy and Program Planning Division, Common Carrier
Bureau, Federal Communications Commission, Re: docket no. XXX, 445 12th
Street, S.W., Room 5-C327, Washington, D.C. 20554. Because the relevant
state commission(s) and the Department of Justice are given roles by
statute in a section 271 proceeding, copies of all filings, including
comments, reply comments and *ex parte* submissions, should be filed
with those parties. The name and address of the contact person at these
agencies will be listed in the Initial Public Notice. To the extent that
a comment or reply submission includes confidential information or
comments on confidential information that another participant has
submitted, the party must follow the procedures described in Part A.4
above, including providing copies of confidential material to both the
Commission and the Department of Justice.

We encourage third parties to file well-documented factual submissions
in support or, or in opposition to, a BOC's section 271 application.
Anecdotal evidence or unsupported assertions in opposition to an
application are not persuasive.[^14] Accordingly, factual allegations
supported by detailed affidavits will be most probative.

There is no page limit on supporting documentation. As discussed in
section B of this Public Notice, however, parties must make all
substantive legal and policy arguments in their comments or replies,
rather than in supporting documentation. Supporting documentation,
including any records of relevant state proceedings, interconnection
agreements, affidavits, etc., shall be provided in appendices, separated
by tabs and divided into volumes as appropriate. Each volume shall
contain a table of contents that lists the subject of each tabbed
section of that volume. Commenters shall not incorporate by reference,
in their comments or replies, entire documents or significant portions
of documents that were filed in other proceedings, such as comments or
reply comments filed or arguments made in a previous section 271
proceeding. Although commenters are permitted to note arguments that
were presented in earlier filings, they must provide a complete
recitation in their current filing of any argument that they wish the
Commission to consider.

All participants in the proceeding -- the applicant, interested third
parties, the relevant state commission(s), and the Department of Justice
-- may file a reply to any comment made by any other participant. The
applicant's and third parties' replies may not raise new arguments or
include new data that are not directly responsive to arguments other
participants have raised, nor may the replies merely repeat arguments
made by that party in the application or initial comments. As discussed
above in Section B, an applicant may submit new factual evidence in its
reply if the sole purpose of that evidence is to rebut arguments made,
or facts submitted, by commenters, provided the evidence covers only the
period placed in dispute by commenters and in no event post-dates the
filing of the relevant comments.[^15]

E.  **[Written Consultations from State Commission(s) and Department of
    Justice]{.underline}**

State commissions have a critical statutory role in the section 271
authorization process. We encourage state commissions to become actively
involved in validating and reconciling data, overseeing third-party
testing of operations support systems, developing clearly-defined
performance measures and standards, and implementing performance
assurance measures that strongly encourage post-entry compliance.
Indeed, given our 90-day statutory deadline, this Commission looks to
state commissions to resolve factual disputes wherever possible. As
indicated in prior section 271 orders, this Commission will accord more
weight to state commission evaluations where the state has conducted a
rigorous investigation of the BOC's compliance with the statutory
requirements through an open, collaborative state process that allows
full participation by all interested parties, and has supported its
evaluation with a detailed record.[^16]

We expect that state commissions will make written factual findings and
reach reasoned legal conclusions concerning the BOC's compliance with
the requirements of section 271. Such written conclusions of fact and
law should be submitted to the Commission to guide our review of a BOC's
application, as contemplated in section 271(d)(2)(B) of the Act.[^17] As
in previous section 271 applications, we will set a deadline for filing
a state commission's written evaluation of 20 days after issuance of the
Initial Public Notice.[^18] Based on our experience, however, we
emphasize that it is extremely beneficial to the efficient processing of
section 271 applications if a state commission's evaluation is available
at the time the BOC files its application, or as soon thereafter as
possible. Indeed, without the benefit of a state's analysis and
conclusions until several weeks into a proceeding, resources may be
wasted considering issues and concerns raised by parties that have
already been thoroughly considered by state regulators. This is
particularly true where a state has spent a great deal of time and
effort on local competition issues, and on the BOC's section 271
application. Accordingly, we encourage state commissions to make
available a written evaluation at the time a BOC files its application,
but in no event later than 20 days after the application is filed. When
submitting evaluations to the Commission, state commissions shall follow
the filing procedures outlined in sections A and D of this Public Notice
applicable to third party commenters. We encourage state commissions to
include in their evaluations a discussion of any complaints that have
been filed against the BOC, either at the state commission or in federal
court, pursuant to sections 251 and 252 of the Act.

A written consultation by the Department of Justice (which, by the Act's
express terms, must become part of the record) must be filed not later
than approximately 35 days after the issuance of the Initial Public
Notice. The specific due date for the Department's written consultation
will be set forth in the Initial Public Notice, and may vary depending
on the circumstances of the individual application. The Department of
Justice shall also follow the applicable filing procedures outlined in
sections A and D of this Public Notice.

The state commission(s) and the Department of Justice are also welcome
to file reply comments pursuant to section D of this Public Notice, as
well as written *ex parte* submissions in accordance with section G of
this Public Notice.

F.  **[Motions]{.underline}**

Because of the shortness of the 90-day period to review section 271
applications, a dispositive motion filed with the Commission in a
section 271 proceeding (*e.g.*, motion to dismiss) will be treated as an
early-filed pleading and will not be subject to a separate pleading
cycle, unless the Commission or Bureau determines otherwise in a public
notice issued after the motion is filed. The Commission generally
expects, however, that such a separate pleading cycle will not be
necessary. Thus, in general, dispositive motions filed before the due
date for third party comments will be treated as early-filed comments;
dispositive motions filed after the due date for third party comments
but before the due date for replies will be treated as early-filed
replies; and dispositive motions filed after the due date for replies
will be treated as *ex parte* submissions. Such motions will be counted
toward the applicable page limit for the submitting party.

Non-dispositive motions (*e.g.*, motions to strike) will be subject to
the default pleading cycle in section 1.45 of the Commission's
rules,[^19] unless the Commission or Bureau determines otherwise in a
public notice. Because of the expedited nature of section 271
proceedings, section 1.4(h) of the Commission's rules will not apply to
motions filed in section 271 proceedings.[^20] Thus, parties will not be
allowed an extra three days (beyond the time permitted in section 1.45)
to respond to non-dispositive motions and oppositions thereto,
regardless of whether the filing was served on the party by mail. In
lieu of that rule, however, a party submitting a non-dispositive motion
must, on the day of filing, serve that motion either by hand or by
facsimile on any party whose filing is the subject of the motion. In
addition, parties must submit non-dispositive motions and oppositions to
such motions to the Commission on a read-only CD-ROM formatted in Word
97, Excel 97, PowerPoint, PDF, or TIF format, or such other format as
may be approved by the Common Carrier Bureau, as applicable (as well as
in hard copy form). Certain filings submitted on read-only CD-ROM may be
posted on the Commission's Internet homepage for public inspection at
http://www.fcc.gov. Such motions, oppositions, and replies will not be
counted toward the submitting party's page limit.

**G. [Ex Parte Rules -- Permit-But-Disclose Proceeding]{.underline}**

Because of the broad policy issues involved, section 271 application
proceedings initially will be considered permit-but-disclose
proceedings.[^21] Accordingly, *ex parte* presentations will be
permitted, provided they are disclosed in conformance with Commission
*ex parte* rules.[^22] Because of the statutory timeframe, however, we
strongly encourage parties to set forth their views comprehensively in
the formal filings specified above (*e.g.*, the Applicant's Brief in
Support; comments or replies with supporting materials) and not to rely
on subsequent *ex parte* presentations. In any event, parties may not
file more than a total of 20 pages of written *ex parte* submissions.
This 20-page limit does not include: (1) written *ex parte* submissions
made solely to disclose an oral *ex parte* contact; (2) written material
submitted at the time of an oral presentation to Commission staff that
provides a brief outline of the presentation; (3) written material filed
in response to direct requests from Commission staff;[^23] or (4)
written factual exhibits. The Commission retains the right not to
consider as part of the record *ex parte* submissions in excess of the
20-page limit. Parties should provide Bureau staff (along with the
contact person for the Department of Justice and the relevant state
commission(s), identified in the Initial Public Notice) with courtesy
copies of any *ex parte* presentation, including those made to any
member of the Commission. Parties should also file with the Commission
any material concerning a section 271 application that is provided to
the Department of Justice during the pendency of the proceeding,
following the procedures outlined in this section (including, if
applicable, the procedures governing the filing of confidential
information). Finally, recognizing the burden placed on all parties by
the 90-day statutory deadline, we strongly encourage each applicant to
post a copy of its *ex parte* submissions on a publicly-accessible web
site, and commenters to provide the applicant with a copy of their own
*ex parte* submissions -- both within 24 hours of filing the material
with the Commission.[^24]

To the extent an *ex parte* submission includes confidential information
or comments on confidential information that another participant has
submitted, the party must file with the Office of the Secretary: (i) one
original of only the portion(s) of the submission that contain
confidential information or comments on confidential information that
another participant has submitted; and (ii) one original and two copies
of the entire confidential submission in redacted form, which clearly
indicates the redacted areas on the relevant pages.[^25] The submissions
described in items (i) and (ii) must be accompanied by a cover letter
that lists the name, address, and phone number of the person who will
address inquiries regarding access to the confidential information by
other participants in the proceeding (subject to the terms of any
applicable protective order). Each page of the submission described in
item (i) and the accompanying cover letter should be stamped
"Confidential---Subject to Protective Order." Each page of the redacted
submission described in item (ii) and the accompanying cover letter
should be stamped "Redacted---For Public Inspection." Other than having
different stamps, the cover letters should be the same for the
confidential and redacted submissions. Both submissions should be
delivered in person to the Office of the Secretary, 445 12th Street,
S.W., Room TW-B-204, to Magalie Roman Salas, Secretary; or in her
absence, to William F. Caton, Deputy Secretary. In addition, two copies
of the redacted and confidential submissions, and the accompanying cover
letters, should be delivered to the Common Carrier Bureau staff member
and Department of Justice contact identified in the Initial Public
Notice as the designated recipients of confidential material.

For purposes of these proceedings, and in light of the explicit role the
Act gives to the Department of Justice and state commissions under
section 271, any oral *ex parte* presentations from the Department of
Justice and the relevant state commission(s) will be deemed to be exempt
*ex parte* presentations. To the extent that the Commission obtains
through such oral *ex parte* presentations new factual information on
which the Commission subsequently relies in its decision-making process,
the Commission will either request the Department of Justice or the
relevant state commission(s) to prepare a summary, or itself will
prepare a summary, of the new factual information for inclusion in the
record in accordance with the Commission's rules.[^26] There are no page
limits on written *ex parte* submissions by the Department of Justice or
the relevant state commission(s).

Notwithstanding the above, the Commission may, by subsequent public
notice, prohibit all communication with Commission personnel regarding
the application during a specified period preceding the anticipated
release date of the Commission's order regarding the application.[^27]

**H. [FCC Notice to Individuals Required by the Privacy Act and the
Paperwork Reduction Act]{.underline}**

Pursuant to section 271 of the Communications Act of 1934, as amended,
the BOC must demonstrate compliance with section 271 on a state-by-state
basis by filing an application to provide in-region, interLATA services
covering one or more states. The relevant state regulatory commission(s)
must file written consultations relating to the applications not later
than approximately 20 days after the issuance of an Initial Public
Notice establishing specific due dates for various filings. Interested
third parties may file comments on the applications not later than
approximately 20 days after the issuance of the Initial Public Notice.
The Department of Justice must file a written consultation relating to
the applications not later than approximately 35 days after the issuance
of the Initial Public Notice. As noted above, the filing deadlines are
set by the Commission in the Initial Public Notice and may vary
depending on the circumstances of the individual application. All of the
information submitted by the various parties would be used to ensure
that the BOCs have complied with their obligations under the
Communications Act of 1934, as amended, prior to receiving Commission
authorization to provide in-region, interLATA services pursuant to
section 271. Obligation to respond is not mandatory.

The Commission has estimated that each response to this collection of
information will take, on average, 250 hours. This estimate includes the
time to read the instructions, look through existing records, gather and
maintain required data, and actually complete and review the form or
response. If you have any comments on this estimate, or on how the
Commission can improve the collection and reduce the burden it causes
you, please write the Federal Communications Commission, AMD-PERM,
Washington, D.C. 20554, Paperwork Reduction Project (3060-0756). Your
comments also will be accepted via the Internet if you send them to
jboley@fcc.gov. Please DO NOT SEND COMPLETED APPLICATION FORMS TO THIS
ADDRESS.

Remember -- You are not required to respond to a collection of
information sponsored by the Federal government, and the government may
not conduct or sponsor this collection unless it displays a currently
valid OMB control number or if it fails to provide you with this notice.
This collection has been assigned an OMB control number of 3060-0756.

This notice is required by the Privacy Act of 1974, Public Law 93-579,
December 31, 1974, 5 U.S.C. § 552a(e)(3) and the Paperwork Reduction Act
of 1995, Public Law 104-13, October 1, 1995, 44 U.S.C. § 3507.

\*The action contained herein has been analyzed with respect to the
Paperwork Reduction Act of 1995 and found to impose new or modified
reporting and record-keeping requirements or burdens on the public.
Implementation of these new or modified reporting and record-keeping
requirements will be subject to approval by the Office of Management and
Budget (OMB) as prescribed by the Act. This Public Notice will be
re-released after OMB approval has been obtained.

By the Chief, Common Carrier Bureau.

News Media contact: Michael Balmoris 202/418-1500.

> FCC Common Carrier Bureau contact: Janice Myles, Policy and Program
> Planning Division 202/418-1580.

\- FCC -

[^1]: 47 U.S.C. § 271.

[^2]: *See Updated Filing Requirements for Bell Operating Company
    Applications Under Section 271 of the Communications Act*, DA
    99-1994, Public Notice, 14 FCC Rcd 16128 (1999) (*September 28, 1999
    Public Notice*). The *September 28, 1999 Public Notice* revised and
    superseded the procedures and policies for section 271 applications
    that were set forth in prior Public Notices. *See Revised Procedures
    for Bell Operating Company Applications Under Section 271 of the
    Communications Act*, FCC 97-330, Public Notice, 12 FCC Rcd 18590
    (1997); *Procedures for Bell Operating Company Applications Under
    New Section 271 of the Communications Act*, FCC 96-469, Public
    Notice, 11 FCC Rcd 19708 (1996). *See also Bell Operating Companies
    Given Option of Filing Certain Documents on CD-ROM in Section 271
    Applications*, DA 98-1354, Public Notice, 13 FCC Rcd 12791 (1998).

[^3]: If filing on CD-ROM is not possible, applicants may file on a 3.5
    inch computer diskette.

[^4]: The procedures governing the filing of confidential material in an
    *ex parte* submission is covered in Section G, below.

[^5]: *See Application by Bell Atlantic New York for Authorization Under
    Section 271 of the Communications Act To Provide In-Region,
    InterLATA Service in the State of New York*, CC Docket No. 99-295,
    Memorandum Opinion and Order, 15 FCC Rcd 3953, 3968-69, paras. 34-37
    (1999) (*Bell Atlantic New York Order*); *Application of Ameritech
    Michigan Pursuant to Section 271 of the Communications Act of 1934,
    as amended, To Provide In-Region, InterLATA Services in Michigan*,
    CC Docket No. 97-137, Memorandum Opinion and Order, 12 FCC Rcd
    20543, at para. 51 (1997) (*Ameritech Michigan Order*).

[^6]: *See Bell Atlantic New York Order*, 15 FCC Rcd at 3968, para. 35;
    *Joint Application by SBC Communications Inc., Southwestern Bell
    Telephone Company, And Southwestern Bell Communications Services,
    Inc. d/b/a Southwestern Bell Long Distance for Provision of
    In-Region, InterLATA Services in Kansas and Oklahoma*, CC Docket No.
    00-217, Memorandum Opinion and Order, FCC 01-29, at paras. 22-27
    (rel. January 22, 2001) (restating these principles, but waiving
    their application in exceptional circumstances).

[^7]: We note that the United States Court of Appeals for the District
    of Columbia Circuit has found that the Commission "need not sift
    pleadings and documents to identify" arguments that are not "stated
    with clarity." *WAIT Radio v. FCC*, 418 F.2d 1153, 1157 (D.C. Cir.
    1969(, *cert. denied*, 409 U.S. 1027 (1972). It is the petitioner
    who has the "burden of clarifying its position" before the agency.
    *Northside Sanitary Landfill, Inc., v. Thomas*, 849 F.2d 1516, 1519
    (D.C. Cir. 1988), *cert. denied*, 489 U.S. 1078 (1989). This duty is
    even more crucial in the context of section 271 proceedings, because
    of the limited period in which the agency has to review section 271
    applications.

[^8]: *See, e.g.*, *Application of BellSouth Corporation, BellSouth
    Telecommunications, Inc., and BellSouth Long Distance, Inc., for
    Provision of In-Region, InterLATA Services in Louisiana*, CC Docket
    No. 98-121, Memorandum Opinion and Order, 13 FCC Rcd 20599, 20604,
    at para. 8 (1998). Where the Commission has found compliance with
    particular aspects of the section 271 statutory requirements for a
    given state, the BOC may incorporate by reference its prior showing
    for those aspects, provided that it certifies in the subsequent
    application that its actions and performance at that time are
    consistent with the prior showing.

[^9]: *See, e.g., Bell Atlantic New York Order*, 15 FCC Rcd at 3969,
    para. 53.

[^10]: *See* 47 C.F.R. §§ 1.49, 1.741-1.749.

[^11]: *See id.* at § 1.49.

[^12]: Item (e) is obviously the core portion of the Brief in Support,
    and may be quite lengthy. It may help to divide it, therefore, into
    three subsections, one corresponding to each of the three
    requirements set forth in section 271(d)(3).

[^13]: *See* 47 C.F.R. § 1.743.

[^14]: *See Bell Atlantic New York Order*, 15 FCC Rcd at 3973, para. 50.

[^15]: *See id.*, 15 FCC Rcd at 3968, para. 34; *Ameritech Michigan
    Order*, 12 FCC Rcd at 20543, para. 15.

[^16]: *See Bell Atlantic New York Order*, 15 FCC Rcd at 3973-74, paras.
    51, 54; *see also* *id.*, 15 FCC Rcd at 3957-59, paras. 6-12
    (describing efforts of the New York Public Service Commission);
    *Application by SBC Communications Inc., Southwestern Bell Telephone
    Company, And Southwestern Bell Communications Services, Inc. d/b/a
    Southwestern Bell Long Distance Pursuant to Section 271 of the
    Telecommunications Act of 1996 to Provide In-Region, InterLATA
    Services in Texas*, CC Docket No. 00-65, Memorandum Opinion and
    Order, 15 FCC Rcd 18354, 18357-59, paras. 3-4 (describing efforts of
    the Texas Public Utility Commission).

[^17]: *See* 47 U.S.C. § 271(d)(2)(B) (requiring the Commission to
    consult with the relevant state commissions in order to verify the
    compliance of the BOC with the requirements of section 271).

[^18]: Like the due dates for comments and reply comments, the specific
    due dates of these written consultations will be set forth in the
    Initial Public Notice**,** and may vary depending on the
    circumstances of the individual application.

[^19]: 47 C.F.R. § 1.45.

[^20]: *See* 47 C.F.R. § 1.4(h).

[^21]: *See* 47 C.F.R. §§ 1.1200(a), 1.1206.

[^22]: *See* 47 C.F.R. §§ 1.1202, 1.1206(b).

[^23]: *See Bell Atlantic New York Order*, 15 FCC Rcd at 3970, paras.
    41-42 (discussing *ex parte* submissions and the Commission's
    discretion to request additional information in order to further its
    deliberative process).

[^24]: We commend applicants in prior section 271 proceedings for making
    available *ex parte* letters on their web sites and, in return, have
    asked commenters to provide courtesy copies of their own *ex parte*
    submissions to the applicant. *See, e.g., Comments Requested on the
    Application by Verizon New England, Inc. for Authorization Under
    Section 271 of the Communications Act to Provide In-Region,
    InterLATA Service in the State of Massachusetts*, CC Docket No.
    01-9, Public Notice, DA 01-106 (rel. January 16, 2001).

[^25]: The procedures for filing confidential materials as part of the
    initial application, comments or replies is covered above in Section
    A.4.

[^26]: *See* 47 C.F.R. § 1.1204(a)(6).

[^27]: *Cf.* 47 C.F.R. §§ 1.1200(a), 1.1203.