#########  CORRECTED

######### 

#########  Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matters of )

)

Deployment of Wireline Services Offering ) CC Docket No. 98-147

Advanced Telecommunications Capability )

)

Request by Bell Atlantic‑West Virginia )

for Interim Relief Under Section 706, ) NSD‑L‑98‑99

or, in the Alternative, a LATA )

Boundary Modification )

**FOURTH REPORT AND ORDER**

**AND MEMORANDUM OPINION AND ORDER**

**Adopted: January 28, 2000** **Released: February 11, 2000**

By the Commission:

**TABLE OF CONTENTS**

**Paragraph**

I. INTRODUCTION 1

II\. BACKGROUND 5

III\. DISCUSSION 8

A. Legal Authority 8

B. Criteria for BOC Petitions for LATA Modifications 18

C. Bell Atlantic Request for interLATA high-speed bandwidth relief in
West Virginia 28

1\. Background. 28

2\. Discussion 31

D. Other LATA Issues 39

1\. Incidental InterLATA Services 39

2\. LATA Boundary Modifications for Elementary and Secondary Schools 41

IV\. CONCLUSION 45

V. FINAL REGULATORY FLEXIBILITY CERTIFICATION 46

VI\. ORDERING CLAUSES 48

LIST OF COMMENTERS TO THE ADVANCED TELECOMMUNICATIONS

SERVICES NPRM APPENDIX A

LIST OF COMMENTERS TO THE REQUEST BY BELL ATLANTIC‑WEST VIRGINIA FOR
INTERIM RELIEF APPENDIX B

**I. INTRODUCTION**

1\. On March 31, 1999, we released the *Advanced Services Order and
NPRM* in this docket.[^1] In the *Advanced Services Order and NPRM*, we
took certain initial steps to implement Congress\'s goal in the
Telecommunications Act of 1996 (1996 Act)[^2] that advanced services[^3]
become available to all Americans on a reasonable and timely basis.[^4]
The Commission concluded that the pro-competitive provisions of the 1996
Act equally applied to advanced services as to circuit-switched voice
services,[^5] and that incumbent local exchange carriers (LECs) must
offer advanced services to requesting carriers as part of the
interconnection obligations of section 251.[^6] The Commission also
denied petitions that requested the Commission to forbear from applying
the requirements of sections 251(c) and 271 to the provision of advanced
services.[^7] In this regard, the Commission specifically denied Bell
operating company (BOC) requests for large-scale elimination or
modification of local access and transport area (LATA) boundaries to
allow BOCs to supply advanced services across currently recognized LATA
boundaries.[^8] The Commission then adopted a Notice of Proposed
Rulemaking, in which it proposed an alternative pathway for incumbent
LECs to provide advanced services free from regulation if those LECs
provided advanced services through separate affiliates.[^9] The NPRM
also suggested rule changes to ensure that all entities offering
advanced services have adequate access to collocation[^10] and
loops,[^11] and sought comment on the application of the unbundling
rules to advanced services.[^12] Finally, the Commission sought comment
on the two subjects of this order: first, whether any targeted interLATA
relief is necessary to ensure that rural consumers can obtain advanced
telecommunications services in the same manner as other Americans, and
if so, the scope of that relief,[^13] and second, the extent to which
the sections of the Act that allow BOCs to provide certain incidental
interLATA services[^14] apply to advanced services.[^15]

2\. Subsequently, on June 15, 1999, the Commission released the
*Advanced Services First Report and Order and FNPRM*,[^16] in which we
strengthened our collocation rules, adopted spectrum compatibility rules
and released a Further Notice of Proposed Rulemaking in which we sought
comment on whether we should require LECs to allow competitors to offer
advanced services to end users over the same lines on which the LECs
offer voice service. On November 9, 1999, we released the *Advanced
Services Second Report and Order*[^17] in which we clarified that
digital subscriber line services (xDSL) used to provide high‑speed
Internet service are not subject to the discounted resale obligations of
the 1996 Act when sold in bulk to Internet Service Providers (ISPs). On
November 18, 1999, we adopted the *Advanced Services Third Report and
Order,*[^18] in which we instituted line sharing obligations for
incumbent LECs, and established spectrum management policies. Most
recently, in the *U S WEST Remand Order*,[^19] we resolved the
application of section 251 to advanced services.

3\. Today, in this *Advanced Services Fourth Report and Order*, we take
certain actions regarding LATA boundaries to further encourage the
deployment of advanced services. We believe that limited modifications
of LATA boundaries to allow a BOC to deploy advanced services are
consistent with Congress\'s intent, as expressed by section 706 of the
Act,[^20] that the Commission encourage the deployment on a reasonable
and timely basis of advanced services to all Americans. We conclude that
it is within the authority over LATA boundaries granted to the
Commission for us to approve such requests in appropriate circumstances.
We adopt a two-part test that we will use to determine whether we may
grant LATA boundary modification requests where necessary to encourage
the deployment of advanced services. This order does not limit or
otherwise circumscribe the circumstances under which the Commission may
grant LATA boundary modifications, or limit the extent of the
modification that the Commission may grant in particular instances.
Other circumstances may exist where modifying a LATA boundary would be
in the public interest and would be otherwise consistent with the Act.
This order does not address or limit such circumstances.

4\. We also specify criteria that a party must include in its petition
for LATA boundary modifications applicable to advanced services.
Applying the test and the criteria we adopt today, we deny Bell
Atlantic\'s petition for emergency relief to allow it to provide high
speed interstate interLATA connections to the Internet from Morgantown,
West Virginia, to Pittsburgh, Pennsylvania. Finally, we resolve certain
questions raised in the *Advanced Services Order and NPRM* regarding
incidental interLATA services, and conclude that the Act, under a
limited set of circumstances, permits BOCs to deploy certain incidental
advanced services on an interLATA basis.

**II. BACKGROUND**

5\. As we discuss above,[^21] in the *Advanced Services Order and NPRM*,
we denied various BOC requests for large-scale elimination of LATA
boundaries to provide advanced services pursuant to section 706[^22] and
denied additional BOC requests for forbearance under section 10.[^23]
Nonetheless, we affirmed our commitment to facilitating the deployment
of advanced services in a manner consistent with the procompetitive
policies of the Act by requesting comment on whether some form of
limited LATA modifications would be an appropriate method for allowing
BOCs and their affiliates to deploy advanced services.[^24]

6\. In the *Advanced Services Order and NPRM* we tentatively concluded
that LATA modifications might be necessary in some cases to provide
rural subscribers with the same type of high-speed access to the
Internet that consumers in other parts of the country enjoy.[^25] We
sought comment on the types of targeted LATA modifications that would
promote the deployment of advanced services on a reasonable and timely
basis. For example, we sought comment on how to evaluate LATA
modification requests that would allow a BOC to carry high-speed
packet-switched traffic across current LATA boundaries so that it can
connect with network access points (NAPs).[^26] Commenters were asked to
provide empirical data on the number and location of LATAs that do not
contain high-speed NAPs. We also sought comment on whether the
Commission has the authority to take other actions regarding LATA
boundary modifications to facilitate the deployment of advanced
services, and the criteria that the Commission should use to evaluate
requests for such actions.[^27]

7\. Additionally, the *Advanced Services Order and NPRM* requested
comment on what type of documentation should be provided by a BOC
seeking to qualify for a LATA boundary modification to encourage the
deployment of advanced services. We asked whether the information
submitted in Bell Atlantic\'s LATA modification request to provide
high-speed connections in West Virginia is an example of appropriate
documentation, and whether LATA modifications should be withdrawn or
expire at a certain date if a NAP is established in the LATA.[^28] We
also sought comment on the competitive impact of permitting such LATA
modifications, whether carriers other than BOCs are likely to serve
areas lacking NAPs, and whether we should modify LATAs only to the
extent that the advanced services are provided by a BOC affiliate rather
than by the BOC.[^29]

**III. DISCUSSION**

**A. Legal Authority**

8\. We reject arguments that the Commission lacks the authority to
approve targeted LATA boundary modifications where necessary to
encourage the deployment of advanced services. The plain language of the
1996 Act and our precedent indicate that the Commission has the
authority to approve such modifications to LATA boundaries.

9\. On August 24, 1982, the U.S. District Court for the District of
Columbia entered the Modification of Final Judgment (MFJ), in which it
required AT&T to divest its ownership of the BOCs.[^30] The U.S.
District Court subsequently divided all territory in the continental
United States served by the BOCs into LATAs.[^31] Under the MFJ, BOCs
were permitted to provide telephone service within a LATA (intraLATA
service), but were not permitted to carry traffic that crossed LATA
boundaries (interLATA service).[^32] InterLATA traffic was to be carried
by interexchange carriers.[^33] Congress, in the 1996 amendments to the
Act, shifted the authority over LATA boundaries from the U.S. District
Court to the Commission. Sections 601(a)(1) and 601(e)(1) of the Act
shift any \"conduct or activity\" previously subject to the AT&T Consent
Decree to the requirements and obligations of the Act, as amended.[^34]
Section 3(25) of the Act defines a LATA, in part, to mean a \"contiguous
geographic area . . . established or modified by a Bell operating
company after \[February 8, 1996\] *and approved by the
Commission*.\"[^35] As the Commission recently affirmed, the Act thus
gives the Commission sole authority to approve any BOC action to
establish or to modify LATA boundaries as they existed on February 8,
1996.[^36]

10\. Given the latitude that the Act grants the Commission to approve
the modification of LATA boundaries, we reject the arguments of
commenters such as AT&T that suggest that our authority to approve LATA
modifications is limited to that exercised by the U.S. District Court in
its administration of the MFJ, or to situations analogous to those in
which MFJ waivers were granted.[^37] AT&T and other commenters would
limit our LATA modification authority to \"non-controversial\" matters
such as expanded local calling areas and association change
petitions.[^38] These parties assert that our authority to modify LATAs
under section 3(25)(B) is \"designed for, and limited to, a more modest
purpose: 'to give the Commission the same authority that the district
court exercised in adjusting LATA boundaries under the AT&T Consent
Decree.\'\"[^39] We find no such limitation in section 3(25), or
elsewhere in the Act or its legislative history.

11\. As we discuss below, this does not mean that our authority to
modify LATAs is without limit; the limits, however, are prescribed by
the provisions of the Act and not, as some commenters contend, by the
MFJ.[^40] Although MFJ precedent is instructive, it is not binding on
the Commission\'s decisions regarding LATA boundary modifications. As
the Commission concluded in the *LATA Modification Order on Review*, it
is the Act, not the MFJ, that determines Commission authority over LATA
boundaries.[^41]

12\. In section 271, Congress granted exclusive authority to the
Commission to allow the BOCs to provide interLATA service.[^42] Section
271 prohibits a BOC from providing interLATA services until it has met a
fourteen-point checklist to open its intraLATA markets to competition
and the Commission approves the BOC\'s application to provide interLATA
service.[^43] Section 10(d) of the Act explicitly prohibits the
Commission from taking any action that would constitute a forbearance of
its authority to ensure that section 271\'s requirements are fully
implemented.[^44] In the *LATA Modification Order on Review*, the
Commission affirmed the Common Carrier Bureau\'s conclusion that a LATA
boundary modification allows a BOC to provide as intraLATA service what
had previously been interLATA without satisfying the section 271
checklist, triggering the strictures of section 10(d).[^45] Thus, the
Commission may not grant a request that would constitute an
impermissible forbearance of section 271.

13\. Section 706 of the Act requires the Commission to "encourage the
deployment on a reasonable and timely basis of advanced
telecommunications services to all Americans."[^46] However, the
Commission concluded in the *Advanced Services Order and NPRM* that
section 706 is not an independent grant of forbearance authority.[^47]
Thus, while the Commission must seriously consider any LATA boundary
modification request that would facilitate the deployment of advanced
services, the Commission may only grant such a request where the request
otherwise satisfies the requirements of the Act. The most pertinent
sections of the Act in this regard are sections 271 and 10(d).

14\. In the *ELCS Order*, the Commission adopted a two-part test to
evaluate whether to grant petitions for LATA boundary modifications to
permit BOCs to provide flat rate local calling service to extended local
calling areas that crossed LATA boundaries. We believe that the
two-prong test that the Commission adopted in the *ELCS Order* provides
a model for us to analyze whether LATA boundary modifications to
encourage the deployment of advanced services can satisfy both the
mandate of section 706 and the limit imposed by section 10(d). In its
ELCS analysis, the Commission first considered whether the public would
benefit from the availability of local service within an expanded local
calling area.[^48] The Commission then considered whether the
modification would constitute an impermissible section 10(d) forbearance
by removing the incentive for the BOC to apply for section 271
relief.[^49] The Bureau has subsequently used this analysis to approve a
petition filed by Southwestern Bell to provide ISDN service across a
LATA boundary. [^50]

15\. Adapting the *ELCS Order* test to analyze LATA boundary
modifications would allow us to make case-by-case analyses to determine
whether we can modify LATA boundaries where necessary to encourage the
deployment of advanced services in a manner consistent with section
10(d) of the Act. We disagree with commenters that argue that section
10(d) permits only minor and routine LATA changes, and prohibits a LATA
boundary modification to accelerate the deployment of advanced
services.[^51] As the Commission concluded in the *ELCS Order*, \"LATA
modification for a limited purpose is both consistent with the statute
and serves the public interest. Nothing in the statute or legislative
history indicates that a LATA boundary cannot be modified for a specific
purpose.\"[^52]

16\. We adopt a two-part test for determining whether we may grant LATA
boundary modifications where necessary to encourage the deployment of
advances services on a reasonable and timely basis. In the ELCS context,
we considered first the benefit to the public that would accrue from the
availability of local service within an expanded local calling area.
Similarly, when evaluating a proposed LATA modification for the
provision of advanced services, we will evaluate first whether the
proposed LATA modification would be in the public interest. In section
706, Congress imposed an affirmative duty on the Commission to encourage
the deployment of advanced services to all Americans on a reasonable and
timely basis. Thus, Congress has determined that the rapid and efficient
deployment of advanced services to all Americans is in the public
interest. Therefore, the first prong of the test is satisfied when the
Commission determines that granting the LATA boundary modification would
be necessary to encourage the deployment of advanced services on a
reasonable and timely basis to all Americans. Just as in the
Commission\'s ELCS analysis, however, section 10(d)\'s constraint on our
forbearance authority precludes us from granting wholesale, unbridled
LATA relief, even if it might result in more rapid deployment of certain
advanced services.[^53] Therefore, the second prong of the test requires
the Commission to determine whether the level and types of services that
the BOC wishes to provide would remove its incentive to apply for
permission to provide other interLATA service under section 271.

17\. We conclude that the Act gives the Commission the authority to
grant LATA boundary modifications where necessary to encourage the
deployment of advanced services to all Americans in a reasonable and
timely basis. Under section 706 of the Act, we have an affirmative
obligation to exercise this authority to accelerate the deployment of
advanced services, as long as such action does not violate section 10(d)
by circumventing or eviscerating section 271.[^54] Accordingly, we adopt
a two-part test as set forth above to evaluate requests to modify LATA
boundaries where necessary to encourage the deployment of advanced
services on a case-by-case basis.

**B. Criteria for BOC Petitions for LATA Modifications**

18\. In order that we may evaluate requests for advanced services LATA
boundary modifications on a case-by-case basis expeditiously, we will
adopt criteria to help us rapidly evaluate BOC applications for LATA
boundary modifications. We agree with commenters such as
Telecommunications Resellers Association (TRA) that any petition for
LATA modification for BOC provision of advanced services must be
\"seriously scrutiniz\[ed\]\" and that the impact on competition and
potential for abuse be assessed.[^55] We will grant such LATA
modification petitions when a BOC can show that the modification is
necessary to encourage the deployment of advanced services on a
reasonable and timely basis, and that granting such modification would
not materially affect the BOC\'s incentive to enter the interexchange
marketplace pursuant to section 271.[^56] We believe that granting such
modifications in such circumstances will help ensure that advanced
services are made available to all Americans.

19\. Such LATA boundary modifications would, under the proper
circumstances, be especially appropriate in rural or underserved areas.
For example, a BOC that provides advanced services to customers within a
state may demonstrate that it cannot obtain an interLATA provider to
connect its in-state network to the Internet and request a LATA
modification to allow it to connect its network to the nearest
out-of-state NAP.[^57] A BOC could also request a LATA boundary
modification to allow it to serve a particular customer, such as a
hospital or university, where the customer cannot obtain an interLATA
connection for its network. A BOC also may be able to demonstrate that
it would not be able to deploy xDSL service to a LATA within a
multi-LATA state unless the BOC is allowed to aggregate traffic from one
LATA to another LATA, or may be the advanced services provider of last
resort for residential customers within a particular state. The BOC may
then argue that it is uneconomical to deploy advanced services to such
customers without a LATA boundary modification.

20\. We are committed to reviewing requests by BOCs for LATA
modifications that would provide customers with advanced services in an
expeditious manner. We do not believe that it is in the best interest of
consumers, the BOCs, or the Commission to adopt a cumbersome,
time-consuming review process that would unnecessarily delay the timely
deployment of advanced services.[^58] Therefore, we will require a BOC
petitioner to make a very specific showing in its initial petition. To
help BOCs file pleadings that comply with our particularity requirement,
we adopt a non-exclusive list of criteria that must be addressed by the
petitioning BOC.

21\. BOC compliance with the specific pleading criteria we adopt today
is essential if our review of BOC petitions is to be timely and
rapid.[^59] The Bureau will seek comment on petitions that address the
criteria set forth below on an expedited basis. We require the
petitioning BOC to serve its state commission with a copy of the
petition, and encourage state commissions to participate in our
proceeding. We agree with the Illinois Commerce Commission (ICC) that
states must be given an opportunity to comment.[^60] The Commission will
pay particular attention to the views of the affected state on whether a
LATA modification will serve the public interest.

22\. We believe this process will give the requesting BOC a full
opportunity to seek a LATA modification, and at the same time allow the
Commission to review the request rapidly, in a manner that both makes
the most effective use of the Commission\'s limited resources and
assures the customer the most rapid deployment possible of advanced
services. We believe that the showing we are requiring today will also
allow us to resolve requests for LATA modification in a manner
consistent with the Act.

23\. In the *Advanced Services Order and NPRM*, the Commission asked for
comment on the criteria we should use in evaluating requests for LATA
boundary modifications to provide advanced services.[^61] The comments
in response to the NPRM provide part of the basis for the criteria we
adopt today. The *Advanced Services Order and NPRM* also asked whether
the request filed by Bell Atlantic for a LATA boundary modification to
provide high-speed connections in West Virginia is an example of
appropriate documentation, and whether LATA modifications should be
withdrawn or expire at a certain date if a network access point is
established in the LATA.[^62] Although, as we conclude below, the lack
of specificity in the Bell Atlantic request serves as one of the bases
for our rejection of that request, the record in the West Virginia
proceeding gives us a strong indication of what should be in a petition
for a request to modify LATA boundaries to encourage the deployment of
advanced services on a reasonable and timely basis.

24\. We conclude that for the Commission to determine if the suggested
LATA modification is consistent with our mandate pursuant to section 706
and sufficiently narrow to avoid a violation of section 10(d), BOCs must
provide documentation that the area to which the LATA boundary
modification would apply would encourage the deployment of advanced
services in a reasonable and timely manner,[^63] and that allowing the
BOC to provide that service would not impair its incentive to file an
application to provide other interLATA services under section 271.[^64]
As required on a case-by case basis, we anticipate that such
documentation will generally require the petitioning BOC to identify, at
a minimum, the customer(s) to be provided with advanced services if the
LATA modification is granted, the service to be provided (including the
bit rate required and protocols used to provide the service),[^65] the
physical mode of transport, (*e.g.*, fiber, microwave), the path that
the network connection would take under the proposed LATA
modification,[^66] and the BOC\'s efforts to obtain interLATA advanced
services.[^67] We will also examine the quality of advanced services
currently being provided, the affordability of such services,[^68] and
other information that, on a case-by-case basis, may be necessary for us
to properly evaluate LATA modification requests.[^69] Thus, a BOC must
include the following criteria to the extent applicable in any request
for LATA boundary modification to supply advanced services:

\(i\) the customer (or customers) and type of customer (*e.g*.,
business, residential, government, schools, nonprofit) to be served;

\(ii\) the specific service or services currently provided, or to be
provided, to that customer. (*e.g.*, Internet access, virtual private
network, E-mail, or last mile to the customer.)

\(iii\) the capacity (or bit rate) required to provide the service;

\(iv\) the protocols to be used to provide the service (*e.g*., IP,[^70]
ATM,[^71] IP over SONET,[^72] ATM over SONET);[^73]

\(v\) the physical mode of transport (*e.g*., fiber, microwave);

\(vi\) the path that the network would take if the LATA modification
were to be granted, with a map of the proposed modification indicating
the location of the nearest NAP[^74]; and,

\(vii\) efforts made to obtain interLATA access from an interexchange
carrier (IXC), or other provider of interLATA services, *e.g*, whether a
Request for Proposal (RFP) was issued in appropriate circumstances, or
whether the requesting BOC (or any Global Service Provider or Internet
Service Provider (ISP) that the BOC has contracted to obtain interLATA
service) has attempted to obtain service from non-traditional interLATA
providers such as utility telecommunications providers.

\(viii\) any response, or offer to supply advanced service, received
from another provider of interLATA transport.[^75] The BOC should
describe the quality of the service(s) offered by available interLATA
providers; the affordability of the service(s); and include any other
information that may be needed on a case-by-case basis.

25\. We emphasize that the purpose of this order is to provide criteria
by which we can grant tailored LATA modifications to ensure that
advanced services are provided to all Americans on a reasonable and
timely basis. To ensure that advanced services are provided where relief
is granted, we agree with the Minnesota Department of Public Service
that, where a BOC argues that it requires a LATA boundary modification
to supply advanced services prospectively (*e.g.,* where a lack of
interLATA transport precludes a BOC from offering broadband over the
last mile to a rural area within a particular LATA), the BOC be required
to commit to supplying those services as a precondition to its being
granted the requested relief.[^76] As part of this commitment, the
requesting BOC must commit to install the specified advanced service
facilities in the areas specified, and must include a timetable for
construction and operation of those facilities. The BOC must also
explain how its plan would provide advanced services to that rural area
at lower cost than is currently available, and commit to actually
providing the service at the projected lower cost.[^77]

26\. Further, we reiterate that any relief we may grant to ensure that
all Americans receive the benefits of advanced services will be narrowly
tailored. We do not intend, by granting any LATA modification, to enable
a BOC (or its affiliate) to provide full Internet backbone or other
broadband infrastructure services either within a state or across
multiple states. For the Commission to allow a BOC to provide backbone
services to the public prior to the BOC\'s being granted permission to
provide interLATA services pursuant to section 271 could greatly
diminish the BOC\'s incentive to seek section 271 relief, and thus, as
we discuss in paragraph 12 above, could violate section 10(d) of the
Act.

27\. As we noted in the *Advanced Services Order and NPRM*, Bell
Atlantic filed a petition asking that we modify LATA boundaries to allow
it to provide high-speed connections between West Virginia\'s two LATAs
and between West Virginia and the nearest Internet access points located
in other states.[^78] Many parties responded to our request for comment
by discussing in detail the Bell Atlantic request for interLATA
high-speed bandwidth relief in West Virginia and the need for interLATA
high bandwidth relief in rural areas. As we mention above, the petition
filed by Bell Atlantic has provided us with a good opportunity to
discuss what type of information should be provided in requests to carry
advanced services across LATA boundaries, whether in rural areas so that
such traffic may be connected to the nearest NAP, or in any other area
where a LATA boundary modification would be necessary to encourage the
deployment of advanced services on a reasonable and timely basis.
Accordingly, for the reasons set forth above, and to provide clarity to
the process we will use to evaluate such case-by-case requests, we will
apply the test we adopt today to resolve Bell Atlantic\'s petition in
this order.

**C. Bell Atlantic Petition for InterLATA High-Speed Bandwidth Relief in
West Virginia**

**1. Background.**

28\. On July 23, 1998, Bell Atlantic-West Virginia (Bell Atlantic) filed
a petition for emergency relief to allow Bell Atlantic to provide high
speed interstate interLATA connections to the Internet from Morgantown,
West Virginia to Pittsburgh, Pennsylvania.[^79] In its request, Bell
Atlantic states that it needs the requested relief to allow Bell
Atlantic Internet Solutions, Bell Atlantic\'s Internet service provider
affiliate, to provide high speed Internet access to the West Virginia
Network for Educational Computing (WVNET).[^80] Bell Atlantic Internet
Solutions had been selected to supply the service to WVNET after
submitting the winning bid to a request for proposal by WVNET. In
pertinent part, the RFP had required that the current WVNET 22 Mbps
Internet connection between Morgantown and Pittsburgh be upgraded via
multiple dedicated DS-3s to two higher speed 34 Mbps connections to
Internet access points in Charleston and Morgantown, West Virginia.
Although Bell Atlantic Internet Solutions had won the bid to provide the
high speed Internet service, \"the award was partially based on the
understanding that ICON, Bell Atlantic Internet Solutions\'s Global
Service Provider \...[^81] had already secured DS-3 facilities from IXCs
for both West Virginia Internet access points.\"[^82]

29\. Notwithstanding this understanding on WVNET\'s part, Bell Atlantic
concedes that ICON, a non-facilities-based ISP, had been unable to
obtain the required high-speed connection between Morgantown and
Pittsburgh. In its pleading, Bell Atlantic also stated that the problem
with the WVNET Morgantown to Pittsburgh connection was indicative of a
\"high bandwidth famine\" that exists within the state of West Virginia.
According to Bell Atlantic, this \"famine\" has frustrated the West
Virginia Development Office and Bell Atlantic in their joint efforts to
attract and retain information services and other high technology
companies under the Office of the Future program.[^83] Bell Atlantic
asserts that in order to fully ameliorate this bandwidth \"famine,\" it
would be insufficient merely to allow Bell Atlantic to provide the DS-3
from Morgantown to Pittsburgh for the limited purpose of satisfying the
contract with WVNET until other capacity was available. Rather, Bell
Atlantic notes, its network was designed to satisfy user needs at \"high
speed (OC-3 or higher), on an ATM technology platform, with extensive
(29 ring) SONET route diversity incorporated into the network for
reliability,\" and that the \"few strands of fiber or one SONET ring\"
that was being supplied by other bandwidth providers was not sufficient
interLATA access.[^84] Bell Atlantic argues that the only way for it to
fully utilize its network would be to grant Bell Atlantic permanent
broad-based LATA modifications. Thus, Bell Atlantic requests us not only
to allow it to provide a DS-3 from Morgantown, West Virginia to
Pittsburgh, Pennsylvania, but also to allow Bell Atlantic to provide
transport between other LATAs within and without West Virginia.[^85]

30\. Bell Atlantic argues that the Commission has the legal authority to
provide the requested relief pursuant to section 706 of the Act or, in
the alternative, as a LATA boundary modification pursuant to the
Commission\'s authority under section 3(25) of the Act. On July 28,
1998, the Bureau released a Public Notice soliciting comments in
response to the Bell Atlantic request.[^86]

**2. Discussion**

31\. For the reasons indicated below, we deny Bell Atlantic\'s request.
To the extent that Bell Atlantic requests a LATA modification to allow
it to provide DS-3 capacity[^87] between Morgantown, West Virginia and
Pittsburgh, Pennsylvania, we dismiss that request as moot. To the extent
that the Bell Atlantic request, because of the alleged lack of
high-bandwidth capacity in West Virginia, seeks more general LATA
modifications to allow Bell Atlantic to deploy its network on a more
widespread interstate/interLATA basis, we deny Bell Atlantic\'s request
as unsupported by the current record. If Bell Atlantic believes that any
lack of bandwidth in West Virginia justifies further relief, it may file
a petition for LATA modification in accordance with the criteria we
adopt today.

32\. We first deny Bell Atlantic\'s request to provide interLATA high
bandwidth service between Morgantown, West Virginia and Pittsburgh,
Pennsylvania. In our review of the responsive pleadings to the Bell
Atlantic request, we note that most parties opposed Bell Atlantic\'s
request,[^88] arguing, *inter alia*, that the request is moot because
sufficient bandwidth already exists in West Virginia to satisfy the
WVNET contract,[^89] or would exist shortly.[^90] Further, on August 14,
1998, ICON filed an *ex parte* letter in which ICON stated that it had
procured sufficient bandwidth to supply the Morgantown to Pittsburgh
connection.[^91] In subsequent *ex parte* meetings with Bell Atlantic,
other parties to the proceeding, and a representative of the State of
West Virginia,[^92] it became clear that ICON had established the 34
mbps connection between Morgantown to Pittsburgh. Although it was also
clear that the system was not running at the 34 mbps called for in the
RFP, and that other problems prevented WVNET from operating at its
maximum capacity,[^93] these problems did not arise from the
unavailability of DS-3 capacity between Morgantown and Pittsburgh, but
rather from ICON's failure to obtain capacity that had been available at
the time. In this regard we note that a number of commenters argue that
not only did they have the capacity to provide the DS-3 at the time ICON
said such capacity was unavailable from Morgantown to Pittsburgh, but
also insist that they have the capacity to provide the bandwidth
requested by any of the businesses that Bell Atlantic alleges are unable
to obtain interLATA connections. Thus, because the stated factual
predicate for Bell Atlantic\'s emergency request no longer exists, Bell
Atlantic\'s request to supply interLATA Internet service from Morgantown
to Pittsburgh must be dismissed as moot.

33\. We also deny Bell Atlantic\'s request that we approve a LATA
modification to let Bell Atlantic fully deploy its network across LATA
boundaries because of a purported lack of high bandwidth both within and
across West Virginia\'s borders. Bell Atlantic\'s initial request does
not specify the scope of the relief requested. In the Bell Atlantic
September 10, 1998 *ex parte*, Bell Atlantic narrows its request to the
extent that it requests that we make West Virginia a single-LATA state
for the purposes of dealing with the State of West Virginia as a
customer, and to allow Bell Atlantic to transport Internet traffic for
the State to the nearest NAP, whether in-state or out-of-state. Further,
Bell Atlantic requests that, for its call center customers, we allow
Bell Atlantic to carry its traffic to the nearest IXC point of presence
(POP) without regard for LATA boundaries. The attachment to the
September 10 *ex parte* specifies some of the transport capacity
requested, but does not indicate that any attempt was made to obtain
this capacity from other sources. Further, the attachment states that
\"facilities shown are not necessarily dedicated to Internet traffic,\"
thus allowing the possibility that the requested capacity also could be
used to carry voice traffic over the public switched telephone network
(PSTN).

34\. The Bell Atlantic Petition bases its request that we allow it to
transport data across current LATA boundaries initially pursuant to
section 706.[^94] Because the request would allow Bell Atlantic to
transport significant interLATA traffic, the request is essentially
identical to the global LATA relief that Bell Atlantic requested, and
which we denied, in the *Advanced Services Order and NPRM*.[^95] As we
concluded in that order, section 706 does not constitute an independent
grant of authority to allow the Commission to forbear from ensuring that
section 271 is fully implemented,[^96] and cannot, by itself, serve as
the basis for granting relief from LATA boundary restrictions.
Accordingly, we reject Bell Atlantic\'s request to the extent that the
request is based on section 706.

35\. As an alternative to its section 706 request, Bell Atlantic also
requests modifications to the current intrastate and interstate LATA
boundaries in West Virginia pursuant to the Commission\'s authority
under section 3(25). As we discuss above, we conclude today that in
order for the Commission to grant LATA relief pursuant to section 3(25)
to promote the deployment of advanced services, we will apply a two-part
test. We first must determine whether the LATA relief is necessary to
encourage the deployment of advanced services on a reasonable and timely
basis. If we determine that it does, then we must ensure that, by
approving the LATA relief, we would not be forbearing from enforcement
of section 271 before it is fully implemented. Bell Atlantic, however,
has failed to supply sufficient specific evidence of a \"bandwidth
famine\" to allow us to apply either prong of the test.

36\. First, Bell Atlantic has failed to establish that there is a
\"bandwidth famine\" in West Virginia*, i.e.,* that specific interLATA
connections were otherwise unavailable absent a LATA modification.[^97]
Without a definitive demonstration that granting the LATA boundary
modification is necessary to encourage the deployment of advanced
services to all Americans on a reasonable and timely basis, we cannot
conclude that Bell Atlantic West Virginia's LATA boundary modification
request would be consistent with our mandate under section 706. As we
discuss above, capacity exists for the Morgantown/Pittsburgh connection.
Further, Bell Atlantic has made no showing that it has sought \-- and
been denied \-- the capacity it seeks in the September 10 *ex parte*.
There is also a dispute about whether interLATA providers are contacted
early enough by Bell Atlantic when it initiates the process of supplying
advanced services to schools or businesses to allow such interLATA
providers the opportunity to supply the interLATA portion of the
connection in a reasonable and timely fashion.[^98] For example, AT&T
argues that it did not respond to the WVNET RFP because it was never
contacted by ICON, and had no evidence of the contact in its records.
According to AT&T, ICON contacted Tel-Save, an AT&T reseller, whose
refusal to supply the service cannot be attributed to AT&T.[^99] It
would not be in the public interest to grant a LATA modification request
for a bandwidth deficiency that was in any part created or facilitated
by a BOC\'s inaction. Similarly, although it is not the case before us
today, it would not serve the public interest to deny such a request
when the interLATA provider had full opportunity to provide the
requested service in a timely basis, and declined to do so until the BOC
filed its petition for a LATA modification.

37\. It is also significant to note that a number of comments in the
proceeding have been filed by new entrant, non-common carrier providers
of high bandwidth infrastructure. Notwithstanding Bell Atlantic\'s
characterization of such providers as providing \"a few strands of fiber
or a SONET ring,\" many of these entities, notably, power company
affiliates such as AEP Communications and Allegheny Connect
Communications, Inc., have sophisticated networks and have adopted
business plans that target markets such as West Virginia.[^100] We
believe that it is consistent with the intent of Congress in adopting
section 706 that we encourage the entry into the high bandwidth
infrastructure market of new entrants committed to supplying advanced
services to rural areas.

38\. Second, although the Commission\'s authority over LATA boundaries
is broad, as we discussed in the *Advanced Services Order and NPRM*,
large-scale changes in LATA boundaries for advanced services could
effectively eliminate LATA boundaries for such services, and thus
circumvent the procompetitive incentives for opening the local market to
competition that Congress sought to achieve in enacting section 271 of
the Act.[^101] The widespread nature of Bell Atlantic\'s request could
result in the kind of LATA boundary change that significantly expands a
LATA beyond the state\'s boundary, a change that we have determined is
generally prohibited by section 10(d). We conclude that Bell Atlantic\'s
request as pled is too broad, and its allegations concerning a
\"bandwidth famine\" insufficiently specific to allow the Commission to
grant the requested relief, without providing relief so \"far-reaching\"
that it could \"effectively eviscerate section 271.\"[^102] For these
reasons, we deny Bell Atlantic\'s petition for a LATA boundary
modification, without prejudice for Bell Atlantic to refile its request
under the criteria we adopt today.

**D. Other LATA Issues**

**1. Incidental InterLATA Services**

39\. [Background]{.underline}. The *Advanced Services Order and NPRM*
sought comment on the scope of section 271(b)(3) of the Act, which
permits BOCs and their affiliates to provide certain \"incidental
interLATA services,\"[^103] as defined in section 271(g). Additionally,
we sought comment on whether \"the ability to provide other incidental
interLATA services as defined in \[section\] 271(g) affects a BOC\'s
ability to deploy advanced services on a reasonable and timely
basis.\"[^104]

40\. [Discussion]{.underline}. We conclude that the \"incidental
interLATA services\" permitted under section 271(g) are to be construed
narrowly. Section 271(h) clearly requires that \"the provisions of
section 271(g) are intended to be narrowly construed.\"[^105] The
wording of section 271(h) reflects Congress\' awareness that a broad
reading of section 271(g)\'s exceptions could adversely affect
implementation of sections 251 and 271. Just as we rejected in the
*Advanced Services Order and NPRM* BOC requests for the creation of
large-scale multiple-state LATAs for broadband services,[^106] we are
concerned here that a reading of \"incidental interLATA services\" that
would exceed the specific exceptions listed in section 271(g) could
effectively eliminate LATA boundaries for such services and result in
merely a different means by which BOCs would attain the type of
regulatory forbearance prohibited by section 10(d). We therefore reject
suggestions that we broadly construe the incidental interLATA
exception.[^107]

**2. LATA Boundary Modifications for Elementary and Secondary Schools**

41\. [Background]{.underline}. In the *Advanced Services Order and
NPRM*, we sought comment on whether additional relief beyond the
incidental interLATA authority in section 271(g)(2) would help ensure
that elementary and secondary schools and classrooms have adequate
access to advanced services.[^108] We tentatively concluded that LATA
boundary modifications to ensure that elementary and secondary schools
could avail themselves of certain advanced services would be acceptable
where the school district straddles a LATA boundary. We also asked
commenters whether other types of LATA modifications were necessary to
encourage the deployment of advanced services in elementary and
secondary schools.[^109] Further, in evaluating requests for advanced
services, we asked whether we should adopt the same criteria as used in
the expanded local calling service proceedings and whether such services
should be offered by a BOC affiliate rather than the BOC itself.[^110]

42\. [Discussion]{.underline}. Section 271(g)(2) permits BOCs and their
affiliates to provide, as an incidental interLATA service, \"two-way
interactive video services or Internet services over dedicated
facilities to or for elementary and secondary schools.\" [^111] This
language is thorough and comprehensive, and consequently, we conclude
that the Commission need not authorize additional LATA modifications to
ensure that school districts avail themselves of advanced services, nor
do we need to adopt the criteria used in the expanded local calling
service proceedings in determining whether the BOC can provide two-way
interactive video services or Internet services to elementary and
secondary schools.

43\. Section 271(g)(2) of the Act is clear that, where elementary and
secondary schools are concerned, the definition of \"incidental
interLATA service\" permits the provision of \"two-way interactive video
services or Internet services over dedicated facilities.\" None of the
commenters contends otherwise. Given the clear statutory language, we do
not believe that rules are necessary to implement this subsection. We
emphasize, however, that the language of section 271(g)(2) explicitly
limits the provision of interLATA advanced services to elementary and
secondary schools on a dedicated basis. A carrier would be exceeding its
statutory authority if it were to provide advanced services on an
interLATA basis to other entities, such as universities or state
Internet sites, without requesting permission from the Commission to do
so in the manner required by this order.

44\. U S WEST is one of the few commenters that states that additional
relief is needed if elementary and secondary schools are to be provided
with the advanced services specified in section 271(g)(2). U S WEST
contends that it does not make economic sense to build a full data
network solely to serve Internet traffic generated by these
schools.[^112] Implicit in U S WEST\'s comments is the assumption that
certain school districts will not be served and, thus, the plain
language in section 271(g)(2) is inadequate. To address this situation,
U S WEST suggests that BOCs be allowed to carry general data traffic
over facilities constructed to serve schools; this broader authority, U
S WEST contends, would allow BOCs to spread costs across other services.
Ameritech states that the implication by the Commission that BOCs would
be able to serve elementary and secondary schools represents an empty
gesture because Congress granted BOCs such authority over two years
ago.[^113] Ameritech also states that the procedure by which the
Commission would approve LATA boundary modifications \-- on a
\"LATA-by-LATA\" or \"customer-by-customer\" basis \-- would be
cumbersome and time consuming.[^114] Ameritech favors a process by which
broader relief can be quickly approved. We are not persuaded by U S
WEST\'s general assertions, nor by Ameritech\'s concerns. They fail to
provide evidence to support their statements. Neither U S WEST nor
Ameritech overcome the statutory mandate that we construe section 271(g)
narrowly. If, for example, U S West believes that the authority under
section 271(g)(2) is too narrow, it may submit a LATA modification
pursuant to the order we adopt today.

**IV. CONCLUSION**

45\. The actions we take today should encourage the deployment of
advanced services in a manner consistent with the Act and the public
interest. We believe that where a BOC is carrier willing to provide
broadband services to its customers in a certain market, a modification
of LATA boundaries to allow them to provide such services may be
consistent with Congress\'s intent that the Commission encourage the
deployment of advanced services to all Americans on a reasonable and
timely basis. We conclude that it is well within the broad authority
over LATA boundaries granted to the Commission under the Act for us to
approve such requests in appropriate circumstances. The criteria that a
BOC must satisfy on a case-by-case basis should ensure the rapid
deployment of advanced services to customers in rural or underserved
areas while not encouraging anticompetitive behavior by the BOC.
Further, because the factual predicate for the Petition of Bell Atlantic
West Virginia has become moot, the Petition is accordingly dismissed.

V.  FINAL REGULATORY FLEXIBILITY CERTIFICATION

46\. [Supplemental Final Regulatory Flexibility
Certification]{.underline}*.* In the *Non-Accounting Order,*[^115] the
Commission concluded that the rules adopted in that Order pertain to
only Bell Operating Companies (BOCs), which do not qualify as small
entities under the Regulatory Flexibility Act (RFA).[^116] We note again
that each BOC is an affiliate of a Regional Holding Company, and that
all of the BOCs and their RHCs have more than 1,500 employees, placing
these entities above the small business size standard established by the
Small Business Administration.[^117]

47*.* The Commission will send a copy of this *Fourth Report and Order
and Memorandum Opinion and Order*, including a copy of this final
supplemental certification, in a report to Congress pursuant to the
Small Business Regulatory Enforcement Fairness Act of 1996.[^118] In
addition, the *Fourth Report and Order and Memorandum Opinion and Order*
and this certification will be sent to the Chief Counsel for Advocacy of
the Small Business Administration, and will be published in the Federal
Register.[^119]

VI\. ORDERING CLAUSES

48\. Accordingly, **IT IS ORDERED** that, pursuant to sections 1-4, 10,
201, 202, 251-253, 271, and 706 of the Communications Act of 1934, as
amended, 47 U.S.C. §§ 151-154, 160, 201, 202, 251-253, 271, 157nt, the
FOURTH REPORT AND ORDER is hereby **ADOPTED**. The requirements adopted
in this Order shall be effective 30 days after publication of a summary
thereof in the Federal Register. The collection of information contained
within is contingent upon approval by the OMB.

49\. **IT IS** **FURTHER ORDERED** that, pursuant to section 3(25) of
the Communications Act of 1934, as amended by the Telecommunications Act
of 1996, 47 U.S.C. § 153(25), and pursuant to section 1.3 of the
Commission\'s rules, 47 C.F.R. § 1.3, that the Petition of Bell
Atlantic‑West Virginia for Interim Relief Under Section 706, or, in the
Alternative, a LATA Boundary Modification, **IS DENIED**.

50\. **IT IS FURTHER ORDERED** that the Commission\'s Consumer
Information Bureau, Consumer Information Center, SHALL SEND a copy of
this FOURTH REPORT AND ORDER AND MEMORANDUM OPINION AND ORDER, including
the Final Supplemental regulatory Flexibility Certification, to the
Chief Counsel for Advocacy for the Small Business Administration.

FEDERAL COMMUNICATIONS COMMISSION

Magalie Roman Salas

Secretary

**APPENDIX A**

**List of Commenters to the**

**Advanced Telecommunications Services NPRM**

**CC Docket No. 98-147**

**Comments**

**September 25, 1998**

Number range level0Number range level1Number range level2Number range
level3Number range level4Number range level5Number range level6Number
range level71.Number range level1Number range level2 ADC
Telecommunications, Inc.

2\. Ad Hoc Telecommunications Users Committee

3\. Alliance for Public Technology

4\. Allegiance Telecom, Inc.

5\. America Online, Inc.

6\. America\'s Carriers Telecommunications Association (ACTA)

7\. Ameritech

8\. Association for Local Telecommunications Services (ALTS)

9\. AT&T Corp.

10\. Bell Atlantic

11\. BellSouth Corporation

12\. Cable & Wireless, Inc.

13\. Cablevision Lightpath, Inc.

14\. Central Texas Telephone Cooperative, Inc.

15\. Cincinnati Bell Telephone Company

16\. Coalition of Utah Independent Internet Service Providers

17\. Commercial Internet Exchange Association

18\. Communications Workers of America

19\. Competition Policy Institute

20\. Competitive Telecommunications Association (CompTel)

21\. Computer & Communications Industry Association

22\. Consumer Federation of America

23\. Copper Mountain Networks, Inc.

24\. Cottonwood Communications

25\. Covad Communications Company

26\. CTSI, Inc.

27\. e.spire Communications, Inc.

28\. Federal Trade Commission

29\. First Regional TeleCOM, LLC and FirstWorld Communications, Inc.

30\. Florida Digital Network, Inc.

31\. Florida Public Service Commission

32\. General Services Administration

33\. GST Telecom Inc.

34\. GTE Service Corporation

35\. GVNW Inc.

36\. Hyperion Telecommunications, Inc.

37\. ICG Telecom Group, Inc.

38\. Illinois Commerce Commission

39\. Indiana Utility Regulatory Commission

40\. Information Technology Association of America

41\. Intermedia Communications Inc.

42\. Internet Access Coalition

43\. Internet Service Providers\' Consortium

44\. Keep America Connected, United Homeowners Association, Alpha One,
American Council on Education, National Braille Press, National
Association of Commissions for Women, the National Trust for the
Development of African American Men, National Association for College
and University Business Officers, Latin American Women and Supporters,
Harlem Consumer Education Council, National Latino Telecommunications
Task Force, Northern Virginia Resource Center for the Deaf and Hard of
Hearing, Maine Coordinating Committee, Florida Association for the Deaf,
American Telemedicine Association, World Institute on Disability, The
Massachusetts Assistive Technology Partnership, and National Association
of Development Organizations

45\. Kiesling Consulting LLC

46\. KMC Telecom, Inc.

47\. Level 3 Communications, Inc.

48\. MachOne Communications, Inc.

49\. McLeodUSA Telecommunications Services, Inc.

50\. MCI WorldCom, Inc.

51\. MGC Communications, Inc.

52\. Mindspring Enterprises, Inc.

53\. Minnesota Department of Public Service

54\. Moultrie Independent Telephone Company

55\. National Rural Telecom Association and the Organization for the
Promotion and Advancement of Small Telephone Companies (NRTA/OPASTCO)

56\. National Telephone Cooperative Association

57\. Network Access Solutions, Inc.

58\. Network Plus, Inc.

59\. New Networks Institute (Bruce Kushnick)

60\. New World Paradigm, Ltd.

61\. New York Department of Public Service

62\. NEXTLINK Communications, Inc.

63\. Northern Telecom, Inc.

64\. Northpoint Communications Inc.

65\. OpTel, Inc.

66\. Paradyne Corporation

67\. Paging and Messaging Alliance of the Personal Communications
Industry Association

68\. Paging Network, Inc. (PageNet)

69\. People of the State of California and PUC of California

70\. PSINet, Inc.

71\. Public Utility Commission of Texas

72\. Qwest Communications Corporation

73\. RCN Telecom Services, Inc.

74\. Rhythms NetConnections, Inc.

75\. Rural Telecommunications Group

76\. SBC Communications Inc.

77\. Sprint Corporation

78\. Supra Telecommunications and Information Systems, Inc.

79\. Tandy Corporation

80\. Technology Entrepreneurs Coalition

81\. TCA, Inc.

82\. Telecommunications Resellers Association

83\. Telehub Network Services Corporation

84\. Time Warner Telecom

85\. Transwire Communications, Inc.

86\. United States Small Business Association

87\. United States Telephone Association

88\. UTC

89\. U S WEST Communications, Inc.

90\. US Xchange, LLC

91\. Virtual Hipster (Shad Nygren)

92\. Warner, Jim

93\. Washington Association of Internet Service Providers

94\. Westel, Inc.

95\. Williams Communications, Inc.

96\. xDSL Networks, Inc.

**Reply Comments - October 16, 1998**

Number range level0Number range level1Number range level2Number range
level3Number range level4Number range level5Number range level6Number
range level71. Allegiance Telecom, Inc.

2\. ALLTEL Communications Services Corporation

3\. Ameritech

4\. Association for Local Telecommunications Services (ALTS)

5\. AT&T Corp.

6\. Aware, Inc.

7\. Bell Atlantic

8\. BellSouth Corporation

9\. Coalition of Utah Independent Internet Service Providers

10\. Commercial Internet Exchange Association

11\. Consumer Federation of America

12\. Covad Communications Company

13\. CTSI, Inc.

14\. DSL Access Telecommunications Alliance

15\. e.spire Communications, Inc.

16\. Excel Telecommunications, Inc.

17\. Florida Digital Network, Inc.

18\. General Services Administration

19\. GST Telecom Inc.

20\. GTE Service Corporation

21\. Hyperion Telecommunications, Inc.

22\. Intermedia Communications Inc.

23\. Keep America Connected, United Homeowners Association, Harlem
Consumer Education Council, National Latino Telecommunications Task
Force, American Telemedicine Association, National Association of
Development Organizations, Alpha One, and The World Institute on
Disability

24\. KMC Telecom, Inc.

25\. Level 3 Communications, Inc.

26\. MachOne Communications, Inc.

27\. MCI WorldCom, Inc.

28\. MGC Communications, Inc.

29\. Mindspring Enterprises, Inc.

30\. Moultrie Independent Telephone Company

31\. National Cable Television Association

32\. National Rural Telecom Association and the Organization for the
Promotion and Advancement of Small Telecommunications Companies

33\. National Telephone Cooperative Association

34\. Network Access Solutions, Inc.

35\. Network Plus, Inc.

36\. New World Paradigm, Ltd.

37\. Next Level Communications

38\. NEXTLINK Communications, Inc.

39\. Northpoint Communications Inc.

40\. Qwest Communications Corporation

41\. RCN Telecom Services, Inc.

42\. Rural Telecommunications Group

43\. SAC Communications Inc.

44\. Sprint Corporation

45\. Telecommunications Resellers Association

46\. Telehub Network Services Corporation

47\. Teligent, Inc. and Net2000 Group, Inc.

48\. Time Warner Telecom

49\. Transwire Communications, Inc.

50\. United States Small Business Association

51\. United States Telephone Association

52\. Universal Service Alliance

53\. U S WEST Communications, Inc.

54\. Verio Inc.

55\. Virgin Islands Telephone Corporation

**APPENDIX B**

**List of Commenters to the**

**Request by Bell Atlantic‑West Virginia for Interim Relief**

**Under Section 706, or, in the Alternative,**

**a LATA Boundary Modification**

**NSD‑L‑98‑99**

**Comments**

1\. AT&T

2\. Allegheny Communications Connect, Inc.

3\. The Competitive Telecommunications Association (CompTel)

4\. FibreNet, L.L.C.

5\. The Helicon Group (Competing fiber provider)

6\. Hyperion Telecommunications, Inc.

7\. Intermedia Communications, Inc.

8\. The Internet Service provides\' Consortium (ISPC)

9\. KMC Telecom, Inc

10\. MCI

11\. National Organization of Development Organizations (NADO)

12\. Sprint

13\. US WEST

14\. WorldCom

**Replies**

1\. AT&T

2\. Ameritech

3\. Bell Atlantic

4\. BellSouth

5\. Commercial Internet Exchange Association

6\. Hyperion Telecommunications

7\. Keep America Connected et al.

8\. MCI/WorldCom

9\. Northpoint Communications

10\. QWEST Communications

11\. Sprint

12\. Transwire Communications

13\. US West

[^1]: ^?^ *Deployment of Wireline Services Offering Advanced
    Telecommunications Capability*, CC Docket No. 98‑147, Memorandum
    Opinion and Order and Notice of Proposed Rulemaking, 13 FCC Rcd
    24011 (1998) (*Advanced Services Order and NPRM*), *petitions for
    recon. pending*.

[^2]: ^?^ Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat.
    56, *codified at* 47 U.S.C. §§ 151 *et seq.* Hereinafter, all
    citations to the 1996 Act will be to the 1996 Act as it is codified
    in the United States Code. The 1996 Act amended the Communications
    Act of 1934. We will refer to the Communications Act of 1934, as
    amended, as the \"Communications Act\" or as the \"Act.\"

[^3]: ^?^ As in the *Advanced Services First Report and Order*, we use
    the term \"advanced services\" to mean high speed, switched,
    broadband, wireline telecommunications capability that enables users
    to originate and receive high‑quality voice, data, graphics or video
    telecommunications using any technology. Further, as we discussed in
    the *Advanced Services First Report and Order*, the term
    \"broadband\" signifies sufficient capacity (\"bandwidth\") to
    transport large amounts of information. Services considered to be
    \"broadband\" will change as the underlying technology evolves.
    *Deployment of Wireline Services Offering Advanced
    Telecommunications Capability*, CC Docket No. 98‑147, First Report
    and Order and Further Notice of Proposed Rulemaking, 14 FCC Rcd
    4761, 4762 n.2 (1999) (*Advanced Services First Report and Order and
    FNPRM*).

[^4]: ^?^ *Advanced Services Order and NPRM*, 13 FCC Rcd at 24016,
    24022-23.

[^5]: ^?^ *Id.* at 24017.

[^6]: ^?^ *Id.* at 24017, 24034-35.

[^7]: ^?^ *Id.* at 24018, 24042-50.

[^8]: ^?^ *Id.* at 24048.

[^9]: ^?^ *Id.* at 24050-64.

[^10]: ^?^ *Id.* at 24064-78.

[^11]: ^?^ *Id.* at 24078-91.

[^12]: ^?^ *Id.* at 24091-95.

[^13]: ^?^ *Id.* at 24095-99.

[^14]: ^?^ *See* 47 U.S.C. §§ 271(b)(3), 271(g).

[^15]: ^?^ *Advanced Services Order and NPRM*, 13 FCC Rcd at 24095-99.

[^16]: ^?^ *Advanced Services First Report and Order and FNPRM, supra*
    n.3.

[^17]: ^?^ *Deployment of Wireline Services Offering Advanced
    Telecommunications Capability*, CC Docket No. 98-147, Second Report
    and Order, FCC 99-330 (rel. Nov. 9, 1999) (*Advanced Services Second
    Report and Order*).

[^18]: ^?^ *Deployment of Wireline Services Offering Advanced
    Telecommunications Capability*, CC Docket No. 98-147, Third Report
    and Order, *and Implementation of the Local Competition Provisions
    of the Telecommunications Act of 1996*, CC Docket No. 96-98, Third
    Report and Order, FCC 99-355 (rel. Dec. 9, 1999) (*Advanced Services
    Third Report and Order*).

[^19]: ^?^ *Deployment of Wireline Services Offering Advanced
    Telecommunications Capability;* CC Docket Nos. 98-147, 98-11, 98-26,
    98-32, 98-78, 98-91, Order on Remand, FCC 99-413 (rel. December 23,
    1999) (*U S WEST Remand Order*).

[^20]: ^?^ 47 U.S.C. § 157(nt).

[^21]: ^?^ *See* paragraph 1*, supra*.

[^22]: ^?^ *Advanced Services Order and NPRM*, 13 FCC Rcd at
    24049-24050.

[^23]: ^?^ *Id.* at 24050; 47 U.S.C. § 160(d).

[^24]: ^?^ *Advanced Services Order and NPRM*, 13 FCC Rcd at 24097-98.

[^25]: ^?^ *Id.* at 24097-98.

[^26]: ^?^ *Id.* at 24097. *See* H. Newton, NEWTON\'S TELECOM
    DICTIONARY, at 477 (14th ed. 1998) (Newton), for a definition of
    network access point.

[^27]: ^?^ *Advanced Services Order and NPRM,* 13 FCC Rcd at 24098-99.

[^28]: ^?^ *Id.*

[^29]: ^?^ *Id.*

[^30]: ^?^ *United States v. American Telephone and Telegraph Co.*, 552
    F. Supp. 131 (D.D.C. 1982), *aff\'d sub nom. Maryland v. United
    States*, 460 U.S. 1001 (1983).

[^31]: ^?^ *See United States v. Western Electric*, 569 F. Supp. 990,
    993-994 (D.D.C. 1983) (hereinafter *Western Electric).*

[^32]: ^?^ *Id*. at 994.

[^33]: ^?^ *Id.*

[^34]: ^?^ 47 U.S.C. §§ 152(a)(1), (e)(1).

[^35]: ^?^ 47 U.S.C. § 153(25) (emphasis added).

[^36]: ^?^ *See* *Application for Review and Petition for
    Reconsideration or Clarification of Declaratory Ruling Regarding U S
    West Petitions to Consolidate LATAs in Minnesota and Arizona*,
    NSD-297-6, Memorandum and Order, FCC 99-222 (rel. September 1, 1999)
    (*LATA Modification Order on Review*).

[^37]: ^?^ *See* Florida Digital Network Comments at 5-6; Nextlink
    Comments at 26-28; Cablevision Lightpath Comments at 4-5. ELCS
    petitions are requests for LATA boundary modifications to permit
    calls within certain expanded local calling service areas. *See,
    e.g.,* Petitions for Limited Modifications of LATA Boundaries to
    Provide Expanded Local Calling Service (ELCS) at Various Locations,
    *Memorandum Opinion and Order*, 12 FCC Rcd 10646 (1997) (*ELCS
    Order*) (granting 23 requests for boundary modifications to permit
    calls within certain expanded local calling service areas that
    straddle LATA boundaries to be treated as intraLATA). LATA
    association modifications for independent telephone companies are
    requests to switch the LATAs with which small independent LECs are
    associated. *See* Petitions for LATA Association Changes by
    Independent Telephone Companies, *Memorandum Opinion and Order*, 12
    FCC Rcd 11769 (1997) (*Association Order*) (granting requests to
    modify LATA boundaries to switch three independent LEC exchanges in
    Texas from one SAC LATA to another).

[^38]: ^?^ AT&T Comments at 104 (quoting from *Advanced Services Order
    and NPRM,* 13 FCC Rcd at 24049). A list of parties that filed
    comments and replies in response to the *Advanced Services Order and
    NPRM* appears at Appendix A.

[^39]: ^?^ *Id.* at 103-105; *see also* Letter from Frank S. Simone,
    Government Affairs Director, AT&T, to Magalie Roman Salas,
    Secretary, Federal Communications Commission, at 1, 2 (filed
    December 10, 1998) (AT&T December 10 *ex parte*); Supra
    Telecommunications & Information Systems Comments at 12; Transwire
    Comments at 42; US XCHANGE Comments at 12-13; QWEST Comments at 69;
    Local Telecommunications Services Comments at 69-70; MCI Comments at
    87-92; Nextlink Comments at 28.

[^40]: ^?^ *See* n.37, *supra.*

[^41]: ^?^ *LATA Modification Order on Review*, FCC 99-222, at para.
    15-17.

[^42]: ^?^ 47 U.S.C. § 271.

[^43]: ^?^ 47 U.S.C. § 271(c)(2)(b) sets out fourteen requirements that
    must be met before incumbent BOCs may provide in-region interLATA
    services. 47 U.S.C. § 271(d)(1) permits BOCs to apply to the
    Commission for interLATA service authority. 47 U.S.C. § 271(d)(3)(C)
    provides for the Commission to approve or deny the applications.

[^44]: ^?^ *Id.* § 160(d).

[^45]: ^?^ *LATA Modification Order on Review*, FCC 99-222, at para.
    17-19.

[^46]: ^?^ 47 U.S.C. § 157(nt).

[^47]: ^?^ *Advanced Services Order and NPRM*, 13 FCC Rcd at 24044-48.

[^48]: ^?^ Among the criteria the Bureau has used to evaluate the public
    benefit of a proposed modification are: the type of telephone
    service to be provided; whether there has been approval by the
    relevant state commission for the expanded local calling area; and
    whether the state has found that a community of interest exists in
    the area for which ELCS is sought. *ELCS Order,* 12 FCC Rcd at
    10653.

[^49]: ^?^ To determine whether the proposed LATA modification would
    reduce the BOC\'s incentive to file a section 271 application, the
    Bureau would generally look to the number of customer access lines
    affected by the LATA modification to determine whether the removal
    of these lines from the competitive interexchange market would
    affect the BOC\'s decision to open its local market and file a
    section 271 application. *Id.*

[^50]: ^?^ *See* Southwestern Bell Telephone Company Petition for
    Limited Modification of LATA Boundaries to Provide Integrated
    Services Digital Network (ISDN) at Hearne, Texas, *Memorandum
    Opinion and Order*, 13 FCC Rcd 13166 (Com. Car. Bur. 1998)
    (*Hearne*).

[^51]: ^?^ *See* AT&T December 10, 1998 *Ex Parte* at 1; Lightwave
    Comments at 6; PSInet Comments at 16, 17; AT&T Comments at 106;
    Commercial Internet Exchange Association at 32-34.

[^52]: ^?^ *ELCS Order*, 12 FCC Rcd at 10654.

[^53]: ^?^ *Advanced Services Order and NPRM*, 13 FCC Rcd at 24047.

[^54]: ^?^ We reject Bell Atlantic\'s position that the advanced
    services at issue in this order may actually be information
    services, distinct from telecommunications services, and thus not
    subject to section 271. As we stated in the *Advanced Services Order
    and NPRM*, advanced services are telecommunications services. *Id.,*
    13 FCC Rcd at 24030. Further, we do not need to reach Bell
    Atlantic\'s contention that when a BOC provides an information
    service using the leased transmission facilities of a third party it
    is not providing telecommunications and thus not subject to
    interLATA restrictions where such information services are
    concerned. The information services referred to by Bell Atlantic,
    although unspecified, are acknowledged to be advanced services.
    *See* Bell Atlantic Comments at 10-11. As we discuss above, advanced
    services are by definition telecommunications services, to which
    section 271 applies.

[^55]: ^?^ TRA Comments at 48.

[^56]: ^?^ *See* n.49, *supra*.

[^57]: ^?^ *See* NEWTON\'S, *supra* n.26, at 477. We note that the
    definition of a NAP in this edition of Newton\'s would include any
    point where an Internet Service Provider could connect with the
    Internet, rather than the major NAPs that only exist in Chicago, San
    Francisco and New Jersey. As we discuss in paragraph 18, *infra*, in
    our review of any LATA boundary modification request, we will look
    to the specific need of the petitioner to craft the narrowest
    modification possible to supply advanced services to the BOC\'s
    customers. In this regard, we will look for the closest NAP that
    would allow the BOC to provide advanced services to its customers.

[^58]: ^?^ Comptel Comments at 51; *see also* Ameritech Comments at 70;
    AT&T Reply Comments at 94.

[^59]: ^?^ Requests for LATA modifications that do not include the
    information specified below may be dismissed by the Bureau without
    prejudice for the requesting carrier to renew in accordance with our
    requirements.

[^60]: ^?^ ICC Comments at 17.

[^61]: ^?^ *Advanced Services Order and NPRM*, 13 FCC Rcd at 24098.

[^62]: ^?^ *Id.*

[^63]: ^?^ U S WEST Comments at 54; MDPS Comments at 21.

[^64]: ^?^ *See* TRA Comments at 49; Covad Comments at 63.

[^65]: ^?^ *See* U S WEST Comments at 54.

[^66]: ^?^ *See* MDPS Comments at 21; Northpoint Communications at
    39-49.

[^67]: ^?^ We anticipate that many of the requests for the type of LATA
    boundary modification we discuss today will be made in the context
    of a BOC\'s attempt to provide an integrated service package to a
    customer. Thus, the issue of whether we will permit BOCs, under
    certain circumstances, to provide high-speed, packet-switched data
    transport across current LATA boundaries is a decision that it is
    unlikely that the end-user customer would be involved in (or perhaps
    even be aware of). Certainly if the customer obtains the interLATA
    link, there would be no need for relief; however, we anticipate that
    the entities most likely to attempt to obtain interLATA data
    transport on the BOC\'s behalf would be the BOC, its ISP affiliate,
    or the Global Service Provider (GSP) contracted by the BOC or its
    ISP to provide interLATA transport. As a result, we believe that the
    BOC, as the party requesting a LATA boundary modification, bears the
    responsibility to provide information concerning the efforts that it
    has made, or that parties acting on its behalf have made, to obtain
    interLATA data transport from entities otherwise authorized to
    provide it.

[^68]: ^?^ For example, the Minnesota Department of Public Service
    (MDPS) argues that the BOC should explain how its plan would provide
    advanced services to that rural area at lower cost than is currently
    available, and commit to following through on the projected lower
    cost. MDPS comments at 21.

[^69]: ^?^ For example, in appropriate cases, we will look to see
    whether the BOC has complied with all state and federal rules
    relating to collocation and the availability of ADSL, HDSL, and ISDN
    compatible loops. *See* Ameritech Comments at 71-72; Northpoint
    Communications Comments at 39-49.

[^70]: ^?^ The Internet can be defined as a \"network of networks.\"
    *See e.g.*, Kevin Werbach, Digital Tornado: The Internet and
    Telecommunications Policy, OPP Working Paper No. 29, at 45 (Mar.
    1997) (*Digital Tornado*). \"IP or Internet Protocol,\" as defined
    by D. Comer, Internet Working with TCPIP, Vol. 1, p. 572, 585
    (1995), is the TCPIP protocol suite that defines the IP datagram as
    the unit of information passed across the Internet and provides the
    basis for connectionless, best-effort, packet-delivery service. The
    entire Internet protocol suite is often referred to as TCPIP because
    TCP and IP are the two fundamental protocols contained within the
    suite.

[^71]: ^?^ \"ATM or Asynchronous Transfer Mode\" (ATM) is a very
    high-speed transmission technology that is characterized as a high
    bandwidth, low-delay, connection-oriented, packet-like switching and
    multiplexing technique. *See* NEWTON\'S, *supra* n.26, at 67-68.

[^72]: ^?^ \"IP over SONET\" means that IP is used to transmit data over
    Synchronous Optical Network (SONET). SONET is a family of
    fiber-optic transmission rates from 51.84 Megabits per second to
    13.22 Gigabits per second. *Id.* at 663-64.

[^73]: ^?^ \"ATM over SONET\" means that ATM is used to transmit data
    over SONET. This definition, as with the three previous definitions,
    is by no means exclusive. We anticipate technology to continue to
    evolve. For example, IP over dense wavelength division multiplexing
    (DWDM) provides a simplified and more efficient transport mechanism
    for IP packets over fiber.

[^74]: ^?^ *See* *supra* n.57, for the definition of a NAP.

[^75]: ^?^ The Act requires that a BOC seek Commission approval for any
    LATA modification it proposes. 47 U.S. C. § 3(25). We expect a
    petitioning BOC to demonstrate a timely, good faith, thorough effort
    to obtain the required interLATA service, such that the failure to
    obtain this service at the time of the filing of its petition cannot
    be attributed to inaction on the part of the BOC, its Global Service
    Provider (GSP, *see* n.81*, infra*)*,* or the end-user customer.
    Similarly, we will not look with favor upon last-minute, post-filing
    offers by interLATA providers to supply the requested service where
    the record shows that the interLATA service provider was aware of
    the need for advanced services and effectively declined to provide
    it when offered an opportunity to do so.

[^76]: ^?^ Minnesota Department of Public Service Comments at 21.

[^77]: ^?^ *Id.*

[^78]: ^?^ *Advanced Services Order and NPRM,* 13 FCC Rcd at 24098.

[^79]: ^?^ Petition of Bell Atlantic-West Virginia for Authorization to
    end West Virginia\'s Bandwidth Crisis (Bell Atlantic Petition).

[^80]: ^?^ West Virginia Network for Educational Computing, the West
    Virginia state network, supplies, *inter alia*, Internet
    connectivity to West Virginia\'s State government agencies, public
    libraries, K-12 schools, and universities. Bell Atlantic Request,
    Affidavit of Henry J. Blosser, Director of West Virginia Network for
    Educational Computing, dated July 13, 1998 (Blosser Affidavit), at
    1.

[^81]: ^?^ A \"Global Service Provider\" is the non-BOC carrier that a
    BOC ISP uses to carry its traffic across LATA boundaries.

[^82]: ^?^ Blosser Affidavit at 1.

[^83]: ^?^ Bell Atlantic Petition at 6. The West Virginia Development
    Office established with Bell Atlantic the Office of the Future
    program to attract and retain information services and
    high-technology companies. *Id.*

[^84]: ^?^ Bell Atlantic Reply at 9. A \"SONET Ring\" refers to SONET
    transmission. Transmission systems are ideally laid out in a
    physical ring for purposes of redundancy. In practice, the topology
    often is that of a linear ring, which is linear in its physical
    appearance. *See* NEWTON\'S, *supra* n.26, at 665.

[^85]: ^?^ *See* Letter from Patricia E. Koch, Assistant Vice President,
    Federal Regulatory, Bell Atlantic, to Magalie Roman Salas,
    Secretary, Federal Communications Commission (filed September 10,
    1998) (Bell Atlantic September 10 *ex parte*) (attachment entitled
    \"Proposed Network for K-12, Higher Ed and State Agencies).

[^86]: ^?^ *See* Request by Bell Atlantic-West Virginia for Interim
    Relief Under Section 706, or, in the alternative, a LATA Boundary
    Modification, *Public Notice*, DA 98‑1506 (rel. July 28, 1998).
    Comments and reply comments on the petition were due on August 10,
    1998, and August 15, 1998, respectively. On August 17, 1998, Bell
    Atlantic filed a motion to extend its time to reply, and it filed
    its reply on August 21, 1998. In the interests of creating as
    complete a record as possible, we grant Bell Atlantic\'s motion to
    file a late reply.

[^87]: ^?^ \"DS3\" is a digital signal rate of 44.736 Mbs, corresponding
    to the North American T3 designator. *See* Telecom Glossary of
    Terms, National Communications System Technology and Standards
    Division (Aug. 7, 1996).

[^88]: ^?^ A list of parties that filed opposition and reply comments in
    response to the Bell Atlantic West Virginia Petition may be found in
    Appendix B. Only U S WEST and the National Organization of
    Development Organizations (NADO) supported Bell Atlantic\'s request
    for relief.

[^89]: ^?^ *See, e.g.,* AT&T Opposition to Bell Atlantic Petition at 2;
    Helicon Opposition to Bell Atlantic Petition at 2; Intermedia
    Opposition to Bell Atlantic Petition at 4; KMC Opposition to Bell
    Atlantic Petition at 5; WorldCom Opposition to Bell Atlantic
    Petition at 3.

[^90]: ^?^ Allegheny Opposition to Bell Atlantic Petition at 4; FibreNet
    Opposition to Bell Atlantic Petition at 3; MCI Opposition to Bell
    Atlantic Petition at 3.

[^91]: ^?^ *Ex parte* letter from David L. Gore, Vice President,
    Business Affairs and General Counsel, ICON CMT Corp., to Magalie
    Roman Salas, Secretary, Federal Communications Commission FCC.,
    dated August 10, 1998 (ICON *ex parte)*.

[^92]: ^?^ Notice of Permit but Disclose *ex parte* Presentation in the
    Matter of the Emergency Petition of Bell Atlantic-West Virginia for
    Authorization to end West Virginia\'s Bandwidth Crisis, NSD No.
    L-98-99, September 22, 1998, telephone conversation among Anna M.
    Gomez, Acting Chief, Network Services Division, Gregory Cooke,
    Network Services Division, David Ward, Network Services Division,
    and Linda Kinney, Policy Division with Matthew W. Brown, Manager of
    the Communications Center for the Information Services and
    Communications Division of the West Virginia Department of
    Administration.

[^93]: ^?^ *Id.*

[^94]: ^?^ Bell Atlantic Petition at 1.

[^95]: ^?^ *See, e.g.,* AT&T Opposition to Bell Atlantic Petition at 7;
    Allegheny Opposition to Bell Atlantic Petition at 3; Comptel
    Opposition to Bell Atlantic Petition at 3; Intermedia Opposition to
    Bell Atlantic Petition at 4; KMC Opposition to Bell Atlantic
    Petition at 2; Sprint Opposition to Bell Atlantic Petition at 2;
    WorldCom Opposition to Bell Atlantic Petition at 8 (citing *Advanced
    Services Order and NPRM*, 13 FCC Rcd at 24095-96).

[^96]: ^?^ *Advanced Services Order and NPRM*, 13 FCC Rcd at 24044-48.

[^97]: ^?^ A number of parties maintain that they have been able to
    provide any interLATA capacity requested by customers in West
    Virginia. *See, e.g.* AT&T Comments at 107, 108; AT&T Opposition to
    Bell Atlantic Petition at 5; FiberNet Opposition to Bell Atlantic
    Petition at 2-4; Hyperion Opposition to Bell Atlantic Petition at
    1-2; Helicon Opposition to Bell Atlantic Petition at 2.

[^98]: ^?^ AT&T Comments at 107-108.

[^99]: ^?^ AT&T Opposition to Bell Atlantic Petition at 3-4.

[^100]: ^?^ *See* Allegheny Opposition to Bell Atlantic Petition at 4.

[^101]: ^?^ *Advanced Services Order and NPRM*, 13 FCC Rcd at 24049-50.

[^102]: ^?^ *Id*.

[^103]: ^?^ *Id*.

[^104]: ^?^ *Id.*

[^105]: ^?^ 47 U.S.C. § 271(h).

[^106]: ^?^ *Advanced Services Order and NPRM*, 13 FCC Rcd 24049-50.

[^107]: ^?^ \"The NPRM asks whether the existing exceptions to section
    271 for \'incidental interLATA services\' are sufficient to enable
    the BOCs to cure these infrastructure shortages \... the answer is
    clearly no. The traffic that these exceptions permit the BOCs to
    carry is simply too thin to justify building the needed
    facilities.\" *See* U S WEST Comments at 52-53.

[^108]: ^?^ *Advanced Services Order and NPRM*, 13 FCC Rcd at 24096-97.

[^109]: ^?^ *Id.*

[^110]: ^?^ *Id.*

[^111]: ^?^ 47 U.S.C. § 271(g)(2).

[^112]: ^?^ U S WEST Comments at 54-55.

[^113]: ^?^ Ameritech Comments at 70.

[^114]: ^?^ *Id.* at 70-71.

[^115]: *Non-Accounting Safeguards Order*, 11 FCC Rcd at 22077-70,
    paras. 357-61.

[^116]: *See* 5 U.S.C. § 603. The RFA, *see* U.S.C. § 601. *et. seq*.,
    has been amended by the Contract With America Advancement Act of
    1996, Pub. L. No. 104-121, 110 Stat. 847 (1996)(CWAAA). Title II of
    the CWAAA is the Small Business Regulatory Enforcement Fairness Act
    of 1996 (SBREFA).

[^117]: SBA regulations, 13 C.F.R. § 121.201, define small
    telecommunications entities in SIC Code 4813 (Telecommunications
    Communications, Except Radiotelephone) as entities with no more than
    1, 500 employees

[^118]: *See* 5 U.S.C. § 801(a)(1)(A)

[^119]: *See* 5 U.S.C. § 605(b)