**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the matter of                 | *  | CC Docket No. 93-193         |
|                                  | *) |                              |
| Stale or Moot Docketed           | ** | CC Docket No. 94-65          |
| Proceedings                      |    |                              |
|                                  | *  | CC Docket No. 93-193         |
| 1993 Annual Access Tariff        | *) |                              |
| Filings Phase I                  | ** | CC Docket No. 94-157         |
|                                  |    |                              |
| 1994 Annual Access Tariff        | *  |                              |
| Filings                          | *) |                              |
|                                  | ** |                              |
| AT&T Communications Tariff       |    |                              |
| F.C.C. Nos. 1 and 2, Transmittal | *  |                              |
| Nos. 5460, 5461, 5462, and 5464  | *) |                              |
| Phase II                         | ** |                              |
|                                  |    |                              |
| Bell Atlantic Telephone          | *  |                              |
| Companies Tariff F.C.C. No. 1,   | *) |                              |
| Transmittal No. 690              | ** |                              |
|                                  |    |                              |
| NYNEX Telephone Companies Tariff | *  |                              |
| F.C.C. No. 1, Transmittal No.    | *) |                              |
| 328                              | ** |                              |
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+----------------------------------+----+------------------------------+

**ORDER**

**Adopted: January 14, 2004 Released: February 6, 2004**

By the Commission: Commissioner Martin dissenting and issuing a separate
statement.

**I. INTRODUCTION**

1.  Verizon has sought reconsideration of an order in which the Wireline
    Competition Bureau ("the Bureau") corrected an unintentional
    clerical error that had made it appear that the Commission had
    terminated a tariff investigation without making the required
    determinations of the lawfulness of the subject tariff. Verizon has
    failed to persuade us that we should reverse the Bureau and let
    stand the previous, technical mistake. Accordingly, we deny
    Verizon's petition.

**II. BACKGROUND**

A.  **Procedural History**

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2.  On June 30, 1995, the Bureau designated for investigation issues in
    three related tariff proceedings involving the accounting treatment,
    under price cap regulation, of "other post-retirement employee
    benefits," or "OPEBs."[^1] In its *Combined OPEB Investigations
    Order*, the Bureau designated CC Docket No. 94-157 as the docket
    number for the combined investigation of these issues.[^2] The local
    exchange carriers (LECs) filed direct cases and their customers
    filed responsive pleadings.

3.  On December 21, 2001, as a housekeeping matter, the Commission
    adopted a two paragraph order *(Termination Order)* that purported
    to terminate over 100 docketed proceedings listed in an appendix.
    The Commission's order stated that "\[n\]one of the listed dockets
    \[has\] any outstanding issues." It further stated "\[t\]he matters
    at issue in these proceedings were resolved by the issuance of final
    orders that were not subject to judicial review, or if subject to
    judicial review, were affirmed and the court's mandate was
    issued."[^3] Among the dockets listed in the Appendix was CC Docket
    No. 94-157, even though the tariff investigations the Commission had
    instituted in that docket had not been concluded by a final order or
    otherwise. Indeed, the Commission had not issued any order in the
    consolidated investigations after the filing of the LECs' direct
    cases.

4.  Ten months after the release of the *Termination Order,* AT&T made
    an *ex parte* presentation in the OPEBs docket.[^4] A short time
    thereafter, the Bureau discovered that CC Docket 94-157 had been
    listed in the appendix of the *Termination Order,* even though the
    Commission had not issued a final order closing the investigation or
    resolved the outstanding issues in dispute. In the *Erratum Order*,
    issued thirteen months after the *Termination Order,* the Bureau
    deleted the inclusion of CC Docket 94-157 from the appendix of the
    *Termination Order*, explaining that its inclusion had been an
    inadvertent technical error.[^5]

5.  The *Erratum Order* also stated that the Commission would
    investigate two specific issues: (1) the issue B in the *Combined
    OPEB Investigations Order* (whether LECs may treat as exogenous the
    SFAS-106 costs they incurred prior to January 1, 1993); and (2) the
    issues regarding rate base treatment of OPEBs discussed in the *1996
    Tariff Order*.[^6] Concerning the first issue, the *Erratum Order*
    required Verizon to file its direct case; interested parties were
    directed to file comments on the second issue.[^7] With respect to
    other OPEB issues under investigation in CC Docket No. 94-157, CC
    Docket No. 94-65, and CC Docket No. 93-193, the *Erratum Order*
    requested parties with interest in these dockets to inform the
    Bureau of any issue that remains open.[^8]

6.  On March 27, 2003, Verizon filed a petition for reconsideration of
    the *Erratum Order.*[^9] AT&T Corp. (AT&T) and WorldCom, Inc.
    (WorldCom) jointly filed an opposition to the *Verizon Petition* on
    April 7, 2003.[^10] SBC Communications, Inc. (SBC) filed in support
    of Verizon on April 14, 2003.[^11] Verizon filed reply comments on
    April 17, 2003.[^12] In this Order, we treat Verizon's Petition for
    Reconsideration as an application for review by the Commission. The
    Commission affirms the Bureau's decision and denies Verizon's
    petition.

**B. Positions of the Parties**

7.  Central to Verizon's petition for reconsideration is its argument,
    based on the D.C. Circuit's *Albertson* and *American Methyl*
    decisions, that the Commission exceeded its authority when it
    reinstated Docket No. 94-157 after the time for agency
    reconsideration and judicial review had lapsed.[^13] According to
    Verizon, the Commission had no authority to correct the error in
    this case and reinstate the investigation after 60 days.[^14]
    Verizon also analogizes the Commission's error correction authority
    to that of a district court governed by Rule 60 of the Federal Rules
    of Civil Procedure (FRCP).[^15] Rule 60(a) permits corrections of
    clerical errors for an indeterminate amount of time, whereas Rule
    60(b) permits the correction of errors resulting from "inadvertence,
    surprise, or excusable neglect" for one year after the entry of a
    judgment or order.[^16] Verizon claims that inclusion of the Docket
    94-157 in the *Termination Order* falls within the class of
    "inadvertent" errors governed by Rule 60(b). Thus, Verizon contends,
    the time for correction had expired before the Bureau issued the
    *Erratum Order.*[^17] Verizon argues that the errors properly
    considered under Rule 60(a) "are limited to errors of transcription,
    copying or calculation" that do not "affect the substantive rights
    of the parties." Further, Verizon claims that considerations of
    finality and repose are of special significance in this case and
    argues generally that it would be prejudiced if the case were
    reopened.[^18] Verizon also claims that section 4(i) of the
    Communications Act does not provide a basis for reinstatement of the
    investigation.[^19]

8.  In addition, Verizon claims that, in light of the deadline
    established in section 204 governing the completion of tariff
    investigations, the Commission lacks authority to reinstate an
    investigation that had been finally terminated.[^20] SBC argues that
    the Commission lacks the authority to take any action with respect
    to a tariff investigation after the statutory deadline has
    passed.[^21] SBC also argues that the Commission has acknowledged
    that its authority to revisit final actions is limited. SBC cites
    *Applications of County of San Mateo, California* for the
    proposition that ministerial errors are limited to actions such as a
    mathematical miscalculation, or a license that omits or misstates a
    frequency, or a document that omits an intended party or
    provision.[^22]

9.  AT&T and Worldcom (the IXCs) maintain that the Commission has broad
    error correction powers that are not constrained by the Federal
    Rules of Civil Procedure.[^23] The IXC also argue that, even if the
    Federal Rules were to govern, the error at issue here would fit
    within the "clerical error" exception set forth in Rule 60(a).[^24]
    The IXCs further contend that the Commission has the authority to
    correct its error, and, because the investigation was erroneously
    and improperly terminated, its reinstatement does not constitute a
    new proceeding under section 204.[^25] Moreover, they argue, the
    *Termination Order* was not an "order concluding a hearing" within
    the meaning of section 204(b).[^26]

**III. DISCUSSION**

**A. FCC's Error Correction Authority**

10. We hold that the Commission has authority to issue the *Erratum
    Order* deleting the inadvertent and erroneous citation to CC Docket
    97-154 in the appendix of the *Termination Order.* The courts have
    long recognized that administrative agencies such as the Commission
    have "inherent power to rectify ministerial mistakes,"[^27]
    including unintentional processing errors in administrative
    decisions. The action taken in the *Erratum Order* is well within
    the scope of that inherent error correction authority.[^28]

11. The Commission's authority to correct unintentional processing
    errors is reflected in the Communications Act. Section 4(j) of the
    Communications Act provides that "\[t\]he Commission may conduct its
    proceedings in such manner as will best conduce . . . to the ends of
    justice."[^29] The Supreme Court held that this language in a
    cognate statute identical to section 4(j) "authorizes the correction
    of inadvertent ministerial errors."[^30] Although the Commission may
    not use the error correction authority in section 4(j) "as a guise
    for changing previous decisions because the wisdom of those
    decisions appear doubtful," section 4(j) is a "broad enabling
    statute" that authorizes the correction of unintentional processing
    errors such as the one here.[^31] The Commission's section 4(j)
    authority is limited by the requirement that its exercise "conduce
    to the proper dispatch of business and to the ends of justice."[^32]
    There is, however, no temporal limitation on the Commission's
    authority to rectify unintentional errors under section 4(j).

12. Additionally, section 4(i) of the Communications Act gives the
    Commission authority to "perform any and all acts . . . as may be
    necessary in the execution of its functions."[^33] The D.C. Circuit
    has characterized section 4(i) as a \"necessary and proper clause\"
    that empowers the Commission to take action that is \"appropriate
    and reasonable\" to the execution of its statutory
    responsibilities.[^34] The Commission has held that section 4(i)
    authorizes the correction of inadvertent ministerial errors
    contained in its orders.[^35] Consistent with that precedent, we
    find that, in addition to our above-discussed inherent authority,
    our authority pursuant to sections 4(j) and 4(i) independently
    authorizes the Commission to take corrective action in this case, as
    is necessary to promote compliance with sections 202 and 204 of the
    Communications Act.[^36]

    **B. *Sua Sponte* Reconsideration Deadline Inapplicable**

13. Sections 1.108 and 1.113 of our rules state that the agency may "set
    aside" administrative actions on its own motion within 30 days.[^37]
    While these rules impose a time constraint on the Commission's
    authority *sua sponte* to modify an order where the agency
    subsequently revisits a prior determination and decides that the
    original decision was injudicious, these rules do not bar the
    issuance of the *Erratum Order* in this case. The Commission "sets
    aside" an action within the meaning of sections 1.108 and 1.113 when
    it deliberately changes course by vacating a decision that it later
    determines to have been ill-advised. In other words, these rules
    impose a 30-day time limit on the agency's authority to revisit a
    considered, substantive decision about which it later reaches a
    different conclusion. The staff, in issuing the *Erratum Order*, did
    not reconsider or "set aside" the *Termination Order.* It did not
    alter the stated, substantive criteria for determining whether a
    proceeding should be terminated, nor did it change the manner in
    which it applied the previously announced standard. It simply
    corrected an error in the *Termination Order,* making the appendix
    consistent with its text. Moreover, the Commission has already
    determined that it is not acting pursuant to sections 1.108 and 1.13
    where the Commission "corrects clerical or administrative errors
    that underlie or occur in the process of taking an action."[^38] We
    find that the erroneous reference to CC Docket No. 94-157 in the
    appendix of the *Termination Order* is the type of unintentional,
    processing error to which sections 1.108 and 1.113 and the
    associated time limits do not apply.

14. As the *Erratum Order* correctly pointed out, the Commission "never
    intended" to terminate CC Docket No. 94-157.[^39] The Commission
    adopted the *Termination Order* solely as a housekeeping measure to
    clear Commission records of proceedings that the agency already had
    concluded in earlier administrative actions. When it issued the
    *Termination Order*, the Commission indicated no intent to change
    the substantive status of any administrative proceeding, including
    CC Docket No. 94-157. Indeed, the text of the *Termination Order*
    explicitly states that the dockets listed in the appendix as
    terminated had no "outstanding issues" and already had been
    "resolved by the issuance of final orders."[^40] That description is
    wholly inapplicable to CC Docket 94-157 -- a docket that
    indisputably had "outstanding issues" that had not been "resolved by
    the issuance of \[a\] final order\[\]."[^41] Contrary to Verizon's
    assertion, the Commission did not make a "conscious judgment" to
    include CC Docket No. 94-157 in the appendix of the *Termination
    Order*.[^42] While we cannot determine exactly how the error
    occurred, the text of the *Termination Order* makes clear that the
    Commission's intent was to terminate only those dockets without
    outstanding issues that were resolved by the issuance of final
    orders. Thus, it did not intend to terminate pending tariff
    investigations, such as CC Docket No. 94-157. The inclusion of CC
    Docket No. 94-157 in the list of over 100 other dockets in the
    appendix was a wholly unintentional, processing error. The
    Commission's records conclusively established that, when it adopted
    the *Termination Order,* the tariff investigation was still pending
    before the agency.

15. Given the unintentional nature of the error, the period for issuing
    a *sua sponte* reconsideration does not apply. The Commission has
    made clear that "upon learning of an inadvertent ministerial
    processing error, \[it\] may correct its error, even beyond the
    reconsideration period."[^43] Both the Commission and its staff
    affirmatively have exercised that authority in appropriate
    cases.[^44] Indeed, in 2002 the Commission's staff on delegated
    authority exercised the agency's error-correction authority in a
    situation identical to this one by deleting two other incorrect
    citations inadvertently included in the appendix of the *Termination
    Order.*[^45] That earlier *Erratum,* like the one here, was issued
    outside the 30-day period set forth in section 1.108.

16. SBC's argument that the *Erratum Order* is at odds with the
    Commission's decision in *San Mateo* is unavailing. In *San Mateo,*
    the Commission expressly recognized that its authority to correct
    inadvertent, ministerial, processing errors is not subject to any
    specific time constraints.[^46] The Commission concluded, however,
    that the specific corrective action the staff had taken in that
    case, i.e., the setting aside of a modification application, was not
    a "ministerial or clerical error."[^47] The staff in *San Mateo* set
    aside its earlier decision to grant a modification application
    because the grant was made without regard to the pendency of a prior
    competing application.[^48] In other words, the staff in *San Mateo*
    had intentionally granted the application but subsequently
    determined that its grant was ill-advised. In contrast, the staff in
    this case merely corrected an unintentional, processing error; it
    did not set aside an earlier action that it later determined to be
    wrong.

    **C**. **Reconsideration and Judicial Review Deadline Inapplicable**

17. We also reject Verizon's argument, based on *Albertson* and
    *American Methyl*, that the Commission's authority to correct its
    clerical mistake expired with the time for seeking agency
    reconsideration and judicial review of the *Termination Order*. In
    *Albertson*, the court held that an applicant challenging a permit
    for construction was denied a reasonable opportunity to show cause.
    In so doing, the court rejected the Commission's claim that it
    lacked authority to reconsider the applicant's claim as inconsistent
    with the Commission's authority under its rules "on its own motion
    \[to\] set aside any action made or taken by it within 20
    days."[^49] In no way did the court establish the time for seeking
    judicial review as the outer limit of the Commission's authority to
    reconsider a prior decision.[^50] To the contrary, the court of
    appeals held merely that a timely request to reconsider earlier
    agency action tolled the period for seeking judicial review. More
    significantly, *Albertson* addresses the situation where the agency
    reconsiders a substantive decision; it says nothing about the
    Commission's power to do as it has done here and rectify an
    unintentional processing error. Moreover, in *American Methyl*, the
    D.C. Circuit declined to address "in the abstract" whether agencies
    have "further inherent or implicit authority" that permit them to
    correct errors outside the judicial review period.[^51]

    **D. Rule 60(a) Inapplicable**

18. Verizon also argues that the Commission lacks authority to delete
    the incorrect reference to CC Docket No. 94-157 in the *Erratum*
    because the agency's action affects the LEC's substantive rights and
    it is not a transcription or clerical error that may be corrected
    under Rule 60(a). According to Verizon, the Commission's
    error-correction powers "cannot logically be expanded beyond the
    reach of Rule 60(a)."[^52] For three reasons we find Verizon's
    argument unpersuasive. First, as Verizon itself admits, the Federal
    Rules of Civil Procedure govern the judicial proceedings of the
    federal district courts, not the administrative proceedings of the
    FCC.[^53] We disagree with Verizon that Rule 60 in some undefined
    way constrains the Commission's error-correction authority. As the
    Supreme Court has stated, Congress invested administrative agencies,
    such as the FCC, \"with power *far exceeding* *and different from*\"
    that given to federal courts and \"\[t\]hese differences . . .
    *preclude* wholesale transplantation of the rules of \[judicial\]
    procedure to \[administrative proceedings\]."[^54] Indeed, the
    Supreme Court has held that the \"broad delegation\" of authority in
    section 4(j) empowers the Commission to establish its "own rules of
    procedure" that are "adapted to the peculiarities of the industry
    and the tasks of the agency."[^55] Verizon's claim that the
    Commission's authority to correct inadvertent errors under section
    4(j) is absolutely constrained by the limitations in Rule 60
    misreads applicable precedent and imposes unwarranted limits on the
    Commission's statutory authority.[^56]

19. Second, even if Rule 60 limited the scope of the Commission's
    error-correction authority -- and it does not -- the error in this
    case is one that would be correctable under Rule 60(a). Rule 60(a)
    permits a district court to correct "clerical mistakes in judgments,
    orders or other parts of the record and errors therein arising from
    oversight or omission."[^57] In other words, Rule 60(a) permits the
    correction of "what is erroneous because the thing spoken, written
    or recorded is not what the person intended to speak, write or
    record."[^58] As shown above, that is precisely the type of mistake
    corrected by the *Erratum Order*, where the contents of the appendix
    did not originally match the criteria announced in the body of the
    order.

20. Third, we find unpersuasive Verizon's argument that the agency
    lacked authority to take corrective action in this case because the
    action affects Verizon's substantive rights. An agency's authority
    to correct an inadvertent, processing error does not depend upon
    whether the corrective action affects the party's substantive
    rights. Indeed, agencies have corrected inadvertent, processing
    errors that modify operative terms in licenses, certificates of
    public convenience and necessity, and construction permits.[^59]
    Certainly, these corrections affected substantive rights -- if
    substantive rights were not affected, parties would have little
    reason to expend resources to litigate such corrections, and we
    would thus lack the precedent that informs our decision today.

    **E. Section 204**

21. Verizon further contends that, once the *Termination Order* became
    final, the effect of the initial suspension order and the associated
    accounting order, which would have permitted the Commission to order
    refunds, was nullified as well. Thus, Verizon argues, the Commission
    is without authority to continue the investigation pursuant to
    section 204. We disagree with Verizon that the incorrect reference
    to CC Docket No. 94-157 in the appendix of the *Termination Order*
    had the effect of substantively terminating the OPEBs investigation.
    The text of the *Termination Order* unambiguously describes the
    types of proceedings that the Commission intended to include in the
    order. CC Docket No. 97-157, as explained above, simply does not
    meet any of the criteria, and it was inadvertently included in the
    appendix to the order in error. The *Erratum Order* clarified that
    the Commission in the *Termination Order* never intended to
    terminate CC Docket No. 94-157. The *Erratum Order* thus clarified
    that the *Termination Order* had not terminated CC Docket No. 94-157
    and that the investigation remained pending. Thus, neither the
    *Termination Order* nor the *Erratum Order* changed the status of CC
    Docket No. 94-157. The *Termination Order* did not affect CC Docket
    No. 94-157 and the *Erratum Order* merely corrected an unintentional
    processing error.

22. We also find that the *Termination Order* is not "an order
    concluding the hearing" within the meaning of section 204(b).
    Pursuant to section 204, the Commission must either make an
    affirmative finding that the tariff is either lawful or unlawful, or
    else determine that it has reconsidered the grounds upon which
    suspension was ordered and revoke the suspension.[^60] The
    *Termination Order* does not satisfy either of these requirements.
    Thus, it cannot be considered to be a substantive decision
    effectively terminating the investigation.[^61]

23. With respect to the OPEBs docket itself, it is unclear exactly what
    the *Termination Order* would have terminated. The *Termination
    Order* list three items of information: a docket number, a caption,
    and a citation to the FCC Record. First, the docket number, CC
    Docket No. 94-157, includes eight investigations.[^62] Second, the
    caption listed in the *Termination Order* is incomplete and could
    refer to either of two orders in the docket. Third, the FCC Record
    cite listed in the *Termination Order* is the citation for an
    investigation of Pacific Bell, and not of either Bell Atlantic or
    NYNEX. The FCC Record citation listed in the *Termination Order*
    further obfuscates any possible intent because it is a suspension
    order to an uncompleted investigation rather than a termination
    order, and concerns only Pacific Bell.[^63] The ambiguities, and,
    indeed, contradictions arising from the single cite contained within
    the Appendix to the *Termination Order* further undermine the
    argument that that Order had in fact terminated all pending
    investigations contained within Docket No. 94-157, as Verizon and
    SBC argue it did.

> **F. Equitable Considerations**

24. Under section 4(j), we must consider whether the correction of this
    the erroneous reference to CC Docket No. 94-157 in the appendix of
    the *Termination Order* error "will best conduce to the proper
    dispatch of business and to the ends of justice."[^64] As between
    the parties, we believe that the balance of the equities favors
    correction of the inadvertent processing error. The Commission's
    error, if uncorrected, could cause substantial injury to the
    interexchange carriers. In suspending the tariffs in the first
    place, the Bureau determined that a substantial question existed as
    to their reasonableness. In the wake of that determination,
    terminating the OPEB investigations denies these carriers the right
    to a determination of the lawfulness of the OPEB tariffs and the
    possible refund of unlawful charges. Moreover, the method by which
    the Commission purportedly terminated the investigation arguably did
    not give the interexchange carriers fair notice of the termination.
    There was no reference to CC Docket No. 94-157 either by name or
    number in the caption of the *Termination Order*. Furthermore, the
    text of that order states explicitly that it did not include
    proceedings, such as CC Docket No. 94-157, that had not been
    terminated by the issuance of a final order. The only reference to
    the tariff investigation is buried in a lengthy appendix.

25. Although Verizon argues that there must be finality to the
    Commission's actions and that thirteen months exceeds any reasonable
    time to correct errors affecting the parties' substantive rights,
    these considerations do not overcome the countervailing equities of
    the interexchange carriers. While thirteen months is admittedly a
    long period of time, we cannot find that Verizon suffered
    unreasonable prejudice or even inconvenience as a result of this
    delay. Verizon's reliance interest is attenuated because the text of
    the *Termination Order* explicitly describes the terminated
    proceedings as dockets without outstanding issues that already had
    been concluded with the issuance of final orders. As noted above,
    when the Commission issued its *Termination Order*, the
    investigation in CC Docket No. 94-157 had not been concluded and a
    final order had not been issued. Thus, the existence of the error is
    evident from the text of the *Termination Order* itself, and Verizon
    cannot credibly claim justifiable reliance. Furthermore, the
    correction of the erroneous reference to CC Docket No. 94-157 in the
    appendix leaves Verizon in almost exactly the same position it would
    have been in if the processing error had not been made. Verizon does
    not assert that it detrimentally relied on the incorrect reference
    to CC Docket No. 94-157 in the appendix of the *Termination Order.*
    For example, Verizon does not claim that it destroyed documents
    relevant to the tariff investigation because it believed that the
    *Termination Order* had concluded the tariff investigation.[^65] To
    establish prejudice, Verizon relies primarily on the departure of
    employees with knowledge of the case. Verizon does not claim,
    however, that these departures were in any way connected with the
    alleged termination of CC Docket No. 94-157 in the *Termination
    Order.*

26. Although we remain committed to the notions of finality and repose,
    when balanced against the significant equitable considerations in
    this case, we believe that the public interest is served by the
    correction of the inadvertent error in this case. We are mindful
    that section 4(j) directs the Commission to conduct its proceedings
    in the way best conducive "to the proper dispatch of business and to
    the ends of justice."[^66] Where, as here, the agency has made an
    inadvertent error, the public interest is served by correcting the
    mistake and proceeding in a manner that "puts the parties in the
    position they would have been in had the error not been made."[^67]

**IV. CONCLUSION**

27. For the reasons discussed above, Verizon's petition for
    reconsideration is denied. Accordingly, we will proceed toward a
    resolution of the tariff investigation.

    **V. ORDERING CLAUSE**

28. Accordingly, IT IS ORDERED that, pursuant to sections 4(i) and 4(j)
    of the Communications Act, 47 U.S.C. §§ 154(i), 154(j), and pursuant
    to sections 0.91, 0.291, and 1.106 of the Commission's rules, 47
    C.F.C. §§ 0.91, 0.291, 1.106 that the petition for reconsideration
    filed by Verizon IS DENIED.

    FEDERAL COMMUNICATIONS COMMISSION

    Marlene H. Dortch

    Secretary

**DISSENTING STATEMENT OF\
COMMISSIONER KEVIN J. MARTIN**

Two years ago, I expressed concern regarding the Commission's process
and decision to terminate summarily over 100 docketed proceedings.[^68]
In that decision, the Commission dismissed numerous pending items that
had "allegedly" become moot solely due to its own failure to act. In
particular, I was concerned with a process that dismissed numerous
petitions with no official notice to the parties involved.

Today's action revives one of those proceedings\-- a 1995 tariff
investigation regarding the accounting treatment, under price cap
regulation, of "other post-retirement employee benefits,"
("OPEBs")---that was terminated in 2001. I continue to have serious
concerns with the process in these proceedings. This action reinstitutes
a nearly decade old investigation, after the Commission terminated the
proceeding over two years ago. I am concerned by the process that allows
this termination to be reversed by a bureau-level errata more than
thirteen months after the tariff investigation had been terminated.

[^1]: *1993 Annual Access Tariff Filings*, CC Docket No. 93-193, *1994
    Annual Access Tariff Filings*, CC Docket No. 94-65, *AT&T
    Communications Tariff F.C.C. Nos. 1 and 2, Transmittal Nos. 5460,
    5461, 5462, and 5464*, CC Docket No. 93-193, *Bell Atlantic
    Telephone Companies Tariff F.C.C. No. 1, Transmittal No. 690*, CC
    Docket No. 94-157, Order Designating Issues for Investigation, 10
    FCC Rcd 11804 (Com. Car. Bur. 1995) (*Combined OPEB Investigations
    Order*). The present Wireline Competition Bureau was known as the
    Common Carrier Bureau until 2002.

[^2]: *See id.* at 11817, para. 32.

[^3]: *Termination of Stale or Moot Docketed Proceedings*, Order, 17 FCC
    Rcd 1199 (2002) (*Termination Order*).

[^4]: We note that AT&T sought judicial review of the *Termination
    Order.* AT&T claimed that the Commission erroneously had terminated
    a rulemaking docket unrelated to OPEBs that contained outstanding
    petitions for reconsideration and judicial review. Subsequently, the
    Commission staff issued an erratum deleting the reference to the
    docket identified by AT&T from the appendix of the *Termination
    Order,* explaining that the docket had been listed inadvertently.
    *Erratum,* 17 FCC Rcd 4543 (Com.Car.Bur. 2002). That erratum was
    adopted outside the 30-day period specified by section 1.108 of the
    Commission's rules, under which the agency may set aside actions on
    its own motion. *See* 47 C.F.R. § 1.108. After that erratum was
    adopted, the court of appeals granted the Commission's motion to
    dismiss AT&T's petition for judicial review. *See AT&T Corp. v.*
    FCC, No. 02-1084 (per curiam) (unpublished).

[^5]: *See Stale or Moot Docketed Proceedings, 1993 Annual Access Tariff
    Filings Phase 1,* CC Docket No. 93-193, *1994 Annual Access Tariff
    Filings,* CC Docket No. 94-65, *AT&T Communications Tariff F.C.C.
    Nos. 1 and 2, Transmittal Nos. 5460, 5461, 5462, and 5464, Phase
    II*, CC Docket No. 93-193, *Bell Atlantic Telephone Companies Tariff
    F.C.C. No. 1, Transmittal No. 690*, CC Docket No. 94-157, *NYNEX
    Telephone Companies Tariff F.C.C. No. 1, Transmittal No. 328*,
    Order, Notice and Erratum, 18 FCC Rcd 2550 (WCB 2003) (*Erratum
    Order*).

[^6]: *1996 Annual Access Tariff Filings; National Exchange Carrier
    Association Universal Service Fund and Lifeline Assistance Rates;
    NYNEX Telephone Company Petition to Advance the Effective Date of
    the 5.3 X-Factor to January 1, 1995, Transmittal No. 710*,
    Memorandum Opinion and Order, 11 FCC Rcd 7564 (Com. Car. Bur. 1996)
    (*1996 Tariff Order*).

[^7]: *Erratum Order*, 18 FCC Rcd at 2558-9, para. 23. Verizon filed its
    direct case and interested parties filed comments as directed in the
    order.

[^8]: *Id.* at 2551, para. 4..

[^9]: *Stale or Moot Docketed Proceedings, 1993 Annual Access Tariff
    Filings Phase 1,* CC Docket No. 93-193, *1994 Annual Access Tariff
    Filings,* CC Docket No. 94-65, *AT&T Communications Tariff F.C.C.
    Nos. 1 and 2, Transmittal Nos. 5460, 5461, 5462, and 5464, Phase
    II*, CC Docket No. 93-193, *Bell Atlantic Telephone Companies Tariff
    F.C.C. No. 1, Transmittal No. 690*, CC Docket No. 94-157, *NYNEX
    Telephone Companies Tariff F.C.C. No. 1, Transmittal No. 328*,
    Petition for Reconsideration of Verizon, filed March 27, 2003
    (Verizon Petition).

[^10]: Opposition of WorldCom, Inc. and AT&T Corp. to Verizon's Petition
    for Reconsideration, filed April 7, 2003 (WorldCom/AT&T Opposition).

[^11]: Reply Comments of SBC Communications, Inc. in Support of
    Verizon's Petition for Reconsideration, filed April 14, 2003 (SBC
    Reply Comments).

[^12]: Reply in Support of Petition for Reconsideration, filed April 17,
    2003 (Verizon Reply).

[^13]: Verizon Petition at 6 (citing *Albertson v. FCC,* 182 F.2d 397,
    399 (D.C. Cir. 1950) (*Albertson*); *American Methyl Corp. v. EPA*,
    749 F.2d 826, 835 (D.C. Cir. 1984) (*American Methyl*)).

[^14]: Verizon Petition at 3 and 6 (citing 47 C.F.R. § 1.108 and 28
    U.S.C. § 2344).

[^15]: Verizon Petition at 5-8.

[^16]: *See* Fed. R. Civ. P. 60(a) and (b).

[^17]: Letter from Edward Shakin, Vice President and Associate General
    Counsel, Verizon, to William Maher, Chief, Wireline Competition
    Bureau, FCC, June 11, 2003, at 2*.*

[^18]: Verizon Petition at 8-13*;* Verizon Reply at 6-9*.*

[^19]: Verizon Petition at 13; 47 U.S.C. § 154(i).

[^20]: Verizon Petition at 12.

[^21]: *See* Letter from Michael D. Alarcon, Executive Director, Federal
    Regulatory, SBC, to Marlene H. Dortch, Secretary, FCC, July 10,
    2003.

[^22]: *See* Letter from Gary L. Phillips, General Attorney & Assistant
    General Counsel, SBC, to Marlene H. Dortch, Secretary, FCC, July 16,
    2003 (citing *Applications of County of San Mateo, California*, 16
    FCC Rcd 16501, 16503 (2001) (*San Mateo*)).

[^23]: WorldCom/AT&T Opposition at 9-10.

[^24]: *Id.* at 14-16.

[^25]: *Id*. at 16-19.

[^26]: *Id*. at 18-20.

[^27]: *Howard Sober, Inc. v. ICC*, 628 F.2d 36, 41 (D.C. Cir. 1980).
    *See City of Long Beach v. DOE,* 754 F.2d 379, 387 (recognizing the
    power of an administrative agency to correct orders containing
    inadvertent, ministerial errors). *See also American Trucking Ass'ns
    v. Frisco Transp. Co.,* 359 U.S. 133, 145 (1958) ("The presence of
    authority in administrative officers and tribunals to correct
    \[inadvertent ministerial\] errors has long been recognized.").

[^28]: *See Robert O. Benz,* 13 FCC Rcd 2898, 2900, para. 5 (WTB/CWD,
    1998) (*Robert O. Benz*) (A ministerial error that the agency has
    authority to correct "is defined as an error involving arithmetic
    functions, clerical errors and any other type of unintentional
    error.").

[^29]: 47 U.S.C. § 154(j).

[^30]: *American Trucking Ass'ns v. Frisco Transp. Co.,* 358 U.S. 133 at
    145 (discussing Interstate Commerce Act, § 17(3), 49 U.S.C. §
    17(3)).

[^31]: *Id.* at 145, 146.

[^32]: 47 U.S.C. § 154(j).

[^33]: 47 U.S.C. § 154(i).

[^34]: *New England Telephone & Telegraph Co. v. FCC,* 826 F.2d 1101,
    1107, 1108 (D.C. Cir. 1987), *cert*. *denied*, 490 U.S. 1039 (1989).

[^35]: *E.g., Mobile UHF, Inc.,* 16 FCC Rcd 22945 (2001) (*Mobile UHF*);
    *Robert O. Benz*, 13 FCC Rcd at 2900, 2901, paras. 5, 8.

[^36]: 47 U.S.C. §§ 202 and 204.

[^37]: 47 C.F.R. §§ 1.108, 1.113. Rule 1.108 authorizes the Commission
    "on its own motion \[to\] set aside any action made or taken by it
    within 30 days from the date of public notice of such action." 47
    C.F.R. § 1.108*.* Rule 1.113 provides similar authority to the staff
    to set aside actions they have taken pursuant to delegated
    authority.

[^38]: *San Mateo*, 16 FCC Rcd at 16503. *See Mobile UHF*, 16 FCC Rcd at
    22946 ("The Commission, upon learning of an inadvertent ministerial
    processing error, may correct its error, even beyond the
    \[thirty-day\] reconsideration period.").

[^39]: *Erratum Order,* 18 FCC Rcd 2550 (2003).

[^40]: *Termination Order,* 17 FCC Rcd 1199 (2002).

[^41]: *Id.*

[^42]: Verizon Reply at 8. Noting that the caption of the *Termination
    Order* is "In the Matter of Stale or Moot Docketed Proceedings," SBC
    states that the Commission "may have intended" in the *Termination
    Order* to terminate proceedings that are stale in addition to those
    that had been resolved by the issuance of final orders. SBC Reply at
    2. SBC's claim is not persuasive, as well as being wholly
    speculative. Whatever the caption may have read, the Commission's
    intent, as clearly reflected in the text of the *Termination Order*,
    was to terminate only those dockets without outstanding issues that
    were resolved by the issuance of final orders. SBC is further
    mistaken in arguing that the staff's earlier erratum deleting two
    other mistaken citations in the appendix shows that the agency
    intentionally included CC Docket No. 94-157 in the list of
    terminated dockets. The staff did not take corrective action
    deleting the reference to CC Docket No. 94-157 in the appendix of
    the *Termination Order* when it issued the first erratum because it
    was unaware at that time that CC Docket No. 94-157 had been
    mistakenly listed in the appendix.

[^43]: *Mobile UHF, Inc.* 16 FCC Rcd at 22945.

[^44]: The Commission's staff has construed the Commission's
    error-correction authority broadly. *See Robert O. Benz*; *Lawrence
    Behr,* 17 FCC Rcd 19025 (WTB/CWD 2002). For example, in *Robert O.
    Benz* the Commercial Wireless Division set aside a subsequent mobile
    radio service authorization in favor of the prior license holder
    whose authority had been deleted from the division's records
    inadvertently. 13 FCC Rcd at 2900, paras. 5-7. The record was
    corrected, and the subsequent authorization rescinded. *Id*.
    Similarly, in *Lawrence Behr,* the same division reinstated an
    application for a Phase I 200 MHz license that had been "misplaced,"
    allowing another applicant to be granted a license for the same
    frequency in the same geographical area four years after the award
    of the original license. 13 FCC Rcd at 19026. *See also Application
    of Robert Fetterman d/b/a RF Communications,* 16 FCC Rcd 8221 (2001)
    (*Robert Fetterman*) (staff corrected inadvertent omission of one
    station from a construction permit 13 years afterwards).

[^45]: *Erratum,* 17 FCC Rcd 4543 (Com. Car. Bur. 2002). The agency in
    other cases has exercised its error-correction authority to rectify
    the inadvertent inclusion of incorrect references in an
    administrative orders. *See Application of DCT Communications,
    Inc.*, 15 FCC Rcd 15543 (WTB/PSWD 2000) (correction of a license to
    delete the inadvertent inclusion of three channels).

[^46]: 16 FCC Rcd at 16503, para. 8.

[^47]: *Id.* at 16504, para. 11.

[^48]: *Id*. at 16502, para. 4.

[^49]: *Albertson*, 182 F.2d at 399 (citing F.C.C. Rule 1.726(c)).

[^50]: *See Albertson.* Verizon appears to assert that the Hobbs Act in
    some way operates as a substantive constraint on the agency's
    ability to correct the error in this case. *See* Verizon Reply at
    3-4 (citing 28 U.S.C. § 2344). We disagree. The 60-day Hobbs Act
    period sets forth the time period within which a party may seek
    judicial review of certain types of Commission decisions in the
    courts of appeals. No party currently seeks judicial review of the
    *Termination Order,* and thus this case does not arguably implicate
    issues arising from the concurrent jurisdiction of the courts and
    agencies, *i.e.,* the scope of the Commission's power to correct
    errors in orders subject to the jurisdiction of the court of
    appeals. Furthermore, nothing in the Hobbs Act limits the scope of
    the Commission's error-correction authority under sections 4(i) and
    4(j) of the Communications Act.

[^51]: *See generally American Methyl*, 749 F.2d at 835.

[^52]: Verizon Reply at 7.

[^53]: Verizon Reply at 7.

[^54]: *FCC v. Pottsville Broadcasting Co.,* 309 U.S. 134, 142-43 (1940)
    (emphasis added). *See also* *FCC v. Schreiber*, 381 U.S. 279, 290
    (1965); *Albertson,* 182 F.2d at 400-01 ("While the Commission's
    procedure is not governed by the Federal Rules, 'administrative
    procedure is, and should be, simpler, less formal and less technical
    than judicial procedure.'" (citation omitted)).

[^55]: *FCC v. Schreiber*, 381 U.S. at 290.

[^56]: We note, however, that, in its discretion, the Commission can and
    does look to the Federal Rules of Civil Procedure for guidance.
    *See, e.g., APCC Services, Inc. v. TS Interactive, Inc.*, 17 FCC Rcd
    25523, 25526, ¶ 7 (Enf. Bur. 2002) (relying on the Federal Rules of
    Civil Procedure for guidance); *Premier Network Services, Inc. v.
    Southwestern Bell Tel. Co.*, 18 FCC Rcd 11474, 11475 ¶ 4 (Enf. Bur.,
    MDRD 2003) (same).

[^57]: Fed. R. Civ. P. 60(a).

[^58]: *In re Craddock,* 149 F.3d 1249, 1254 n.4 (10^th^ Cir. 1998).

[^59]: *See, e.g., American Trucking Ass'ns. v. Frisco Transp. Co.,* 358
    U.S. 133 (agency has authority to modify certificates of public
    convenience and necessity containing inadvertent errors); *Howard
    Sober v. ICC,* 628 F.2d 36 (agency has authority to place a
    restriction on a certificate of public convenience and necessity
    that had been omitted by a ministerial mistake); *Mobile UHF,* 16
    FCC Rcd 22945 (Commission has authority to reinstate a license in
    correcting an inadvertent processing error); *Robert Fetterman*, 16
    FCC Rcd 8221 (Commission has authority to modify a construction
    permit containing inadvertent errors).

[^60]: *See, MCI v. FCC*, 917 F.2d 30, 41-42 (D.C. Cir. 1990).

[^61]: We reject the argument made by SBC that the Commission lacks
    authority to proceed with the investigation because section
    204(a)(2)(4) requires the Commission to issue an order concluding an
    investigation within a prescribed time period and that the
    Commission failed to act within that statutory time period. Comments
    of SBC Communications Inc. In Support of Verizon's Petition for
    Reconsideration at 4-7. It is well-established that an agency's
    failure to comply with a statutory deadline does not preclude the
    agency from taking action after that deadline has passed. *E.g.,
    Barnhart v. Peabody Coal Co.,* 123 S. Ct. 748, 754-755 (2003);
    *Brock v. Pierce County*, 476 U.S. 253, 260 (1986). Indeed, the
    court of appeals in *Southwestern Bell Tel.Co. v. FCC,* 138 F.3d
    746, 748 (8^th^ Cir. 1998), specifically upheld the Commission's
    authority to issue an order in a section 204 tariff investigation
    many years after the expiration of the statutory deadline. The court
    of appeals in that case held that "the time constraint imposed by
    section 204 does not operate as a statute of limitations and that
    its violation therefore does not end the FCC's authority to act."
    *Id.*

[^62]: *Pacific Bell Revisions to Tariff F.C.C. No. 128, Transmittal No.
    1911,* CC Docket No. 94-157, Order, 12 FCC Rcd 18724 (1997); *NYNEX
    Telephone Companies, Transmittal Nos. 435, 442, and 447, New York
    Telephone Company Transmittal Nos. 1164 and 1172, Tariff F.C.C. No.
    1*, CC Docket No. 94-147, Order, 12 FCC Rcd 2355 (1997); *1995
    Annual Access Tariff Filing of the NYNEX Telephone Companies and
    Pacific Bell*, CC Docket No. 94-157, Memorandum Opinion and Order on
    Reconsideration; Order Suspending and Investigating Rates, 10 FCC
    Rcd 10860 (1995); *1993 Annual Access Tariff Filings Phase I*, CC
    Docket No. 93-193, *1994 Annual Access Tariff Filings*, CC Docket
    No. 94-65, *AT&T Communications, Tariff F.C.C. Nos. 1 and 2,
    Transmittal Nos. 5460, 5461, 5462 and 5464, Phase II*, CC Docket No.
    93-193, *Bell Atlantic Telephone Companies Tariff F.C.C. No. 1,
    Transmittal No. 690*, CC Docket No. 94-157, *NYNEX Telephone
    Companies Tariff F.C.C. No. 1, Transmittal No. 328,* Order
    Designating Issues for Investigation, 10 FCC Rcd 11804 (1995);
    *NYNEX Telephone Companies Tariff F.C.C. No. 1, Transmittal No.
    374*, CC Docket No. 94-157, Memorandum Opinion and Order Suspending
    Rates, 10 FCC Rcd 8689 (1995); *Pacific Bell Tariff F.C.C. No. 128,
    Transmittal No. 1773, US West Tariff F.C.C. No. 5, Transmittal No.
    584*, CC Docket No. 94-157, Memorandum Opinion and Order Suspending
    Rates, 10 FCC Rcd 6038 (1995); *Bell Atlantic Telephone Companies
    Tariff F.C.C. No. 1, Transmittal No. 747*, CC Docket Nos. 94-139 and
    94-157, Memorandum Opinion and Order Suspending Rates, 10 FCC Rcd
    5027 (1995); *Bell Atlantic Telephone Companies Tariff F.C.C. No. 1,
    Transmittal No. 690, NYNEX Telephone Companies Tariff F.C.C. No. 1,
    Transmittal No. 328, Pacific Bell Tariff F.C.C. No. 128, Transmittal
    No. 1738, US West Communications Transmittal No. 550,* CC Docket No.
    94-157, Memorandum Opinion and Order, 10 FCC Rcd 1594 (1994).

[^63]: *See Termination Order*, 17 FCC Rcd at 1201, Appendix; *Pacific
    Bell, Revisions to Tariff F.C.C. No. 128, Transmittal No. 1911*, CC
    Docket No. 94-157, Order, 12 FCC Rcd 18724 (Com.Car.Bur./CPD 1997).

[^64]: 47 U.S.C. § 154(j).

[^65]: Indeed, Verizon fully complied with the Commission's directive to
    file its direct case and it elected to file comments.

[^66]: *Id.*

[^67]: *Public Utilities Commission of the State of California v. FERC*,
    988 F.2d 154, 168 (D.C. Cir. 1993).

[^68]: Joint Statement of Michael J. Copps and Kevin J. Martin,
    *Federal-State Joint Board on Universal Service: Implementation of
    the Local Competition Provisions of the Telecommunications Act of
    1996, Order on Reconsideration, CC Docket Nos. 96-45 & 96-98* (rel.
    January 29, 2002).