**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| Local Exchange Carriers'         | * | CC Docket No. 88-166         |
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| Bell Atlantic Telephone          | * | Transmittal No. 395          |
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| BellSouth Telephone Companies    | * | Transmittal No. 354          |
| Revisions to Tariff F.C.C. No. 4 | * |                              |
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| Southwestern Bell Telephone      | * | Transmittal Nos. 2039, 2062, |
| Company Revisions to Tariff      | * | and 2094                     |
| F.C.C. No. 68                    | ) |                              |
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| US West Communications Revisions | * | Transmittal No. 127          |
| to Tariff F.C.C. No. 1           | * |                              |
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| Applications for Authority       | * |                              |
| Pursuant to Section 214 of the   | * |                              |
| Communications Act of 1934 to    | ) |                              |
| Cease Providing Dark Fiber       | * |                              |
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| Southwestern Bell Telephone      | * | File No. W-P-C-6670          |
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| US West Communications           | * | File No. W-P-D-364           |
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| Bell Atlantic Telephone          | * | (No File Number)             |
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| BellSouth Telephone Companies    | * | (No File Number)             |
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ORDER ON REMAND

**Adopted: January 2, 2008 Released: January 3, 2008**

By the Commission:

# introduction

1.  In this Order, the Commission responds to the remand from the U.S.
    Court of Appeals for the D.C. Circuit (D.C. Circuit) in
    *Southwestern Bell v. FCC* regarding whether certain Bell Operating
    Company (BOC) dark fiber offerings constitute common carrier
    offerings subject to tariffing and licensing requirements.[^1] As
    discussed below, we conclude that the record on remand is inadequate
    to conclude that the dark fiber arrangements at issue constitute
    common carriage, and we vacate the remanded orders.

# Remanded dark fiber issues

## Background and Legal History

2.  As part of their 1988 tariff filings, several BOCs submitted
    multiyear individual case basis (ICB) arrangements for DS3 circuits
    and dark fiber provided to certain carrier customers and large
    retail customers.[^2] The Commission initiated a proceeding to
    investigate whether it was appropriate for the BOCs to use ICB
    pricing for these services. In its *ICB Order*, the Commission found
    that the BOCs had sufficient experience providing DS3s to file
    generally tariffed rates for their DS3 services.[^3] While
    indicating its uncertainty as to whether dark fiber was subject to
    Title II, the Commission in any event, concluded that the BOCs'
    limited experience to that point in offering dark fiber on an
    individual case basis was insufficient to allow the BOCs to develop
    general dark fiber tariffs.

3.  On reconsideration, the Commission considered new evidence that the
    BOCs did have sufficient experience providing dark fiber.
    Specifically, the Commission identified more than 100 fixed-term ICB
    arrangements for point-to-point dark fiber services in the BOCs'
    tariffs.[^4] In the *ICB Reconsideration Order*, the Commission
    required the BOCs to amend their dark fiber ICBs and to offer dark
    fiber as a generally available service at averaged rates.[^5] In a
    footnote to that decision, the Commission concluded that the BOCs'
    filing of dark fiber ICBs demonstrated that the BOCs offered these
    "wire communication" services on a common carrier basis, subject to
    Title II.[^6] The Commission subsequently denied the BOCs' petitions
    seeking waiver of the tariffing requirement.[^7] The Commission
    later found more explicitly that dark fiber clearly fell within the
    Act's definition of "wire communication," which includes "all
    instrumentalities, facilities, apparatus, and services incidental
    to" the transmission of information "between two or more points by
    means of electronic communications."[^8] The Commission also denied
    the BOCs' petitions for section 214 authority to discontinue their
    dark fiber services, which the BOCs claimed were based on their
    business decisions not to pursue the dark fiber market.[^9] The BOCs
    challenged these decisions before the D.C. Circuit.

4.  In the *Dark Fiber Remand*, the D.C. Circuit addressed the BOC
    appeals of the orders denying waiver of dark fiber tariffing
    requirements and denying section 214 discontinuance authority for
    dark fiber.[^10] The court did not address the Commission's
    determination that dark fiber met the definition of "wire
    communication." The court did find, however, that the BOCs' mere
    submission of dark fiber ICBs was not, in itself, adequate to find
    that they were offering dark fiber on a common carrier basis subject
    to Title II. The court concluded that the Commission had not
    properly applied the *NARUC* analysis of common carriage, stating
    that the "Commission provided insufficient support for concluding
    that the \[BOCs\] had offered dark fiber service on a common carrier
    basis."[^11] The court thus suspended the orders, and remanded them
    to the Commission for "reconsideration of the basis for its
    authority to regulate dark fiber services."[^12] The Commission has
    not yet resolved this question of dark fiber service classification,
    although it raised this issue as it relates to universal service in
    a Further Notice of Proposed Rulemaking on schools and libraries
    universal service funding.[^13]

## Resolution of the Remanded Dark Fiber Issues

5.  We find that the record on remand is inadequate to support the
    imposition of common carrier obligations on the BOC dark fiber
    offerings at issue in this proceeding. The *NARUC* test for common
    carriage considers "whether there are reasons implicit in the nature
    of \[the offering\] to expect an indifferent holding out to the
    eligible user public" and whether "there will be any legal
    compulsion . . . to serve indifferently."[^14] Here, however, the
    record contains virtually no evidence regarding whether the BOCs
    current dark fiber offerings allow us to apply this test.

6.  In particular, the record on remand provides virtually no direct
    evidence regarding how dark fiber is being offered by the BOCs
    today. Consequently, we cannot find, based on that record, that the
    BOCs are, in fact, indifferently holding out to the public any or
    all of the dark fiber offerings that were the subject of the
    remanded orders. The record evidence regarding those BOC dark fiber
    offerings is limited to arrangements provisioned in the late 1980s
    through 1990.[^15] The record reveals that most or all of these dark
    fiber arrangements would already have ended under their original
    terms.[^16] More broadly, the point-to-point, fixed-term dark fiber
    offerings that were the subject to the proceedings underlying the
    *Dark Fiber Remand* shed little light on the variety of ways in
    which BOCs may actually offer dark fiber today. The
    telecommunications market has changed dramatically since the time
    the BOCs offered such dark fiber ICB arrangements, as the dark fiber
    offerings at issue in the remanded proceedings generally involved
    service terms of ten or fewer years. However, as noted in other
    proceedings, providers today may offer dark fiber on different
    terms, such as on an indefeasible-right-of-use (IRU) basis, which
    may warrant different regulatory treatment.[^17] Further, other
    service providers or end users may acquire dark fiber in different
    physical configurations than previously was the case, owing to the
    increasing growth and complexity of the network.[^18] The record on
    remand simply provides no evidence concerning the nature of any dark
    fiber offerings by the BOCs in the current market.

7.  The record on remand also fails to account for the significant
    definitional changes that the 1996 Act introduced.[^19] The record
    was developed in the late 1980s and early 1990s, well before the
    passage of the 1996 Act. In applying Title II prior to the 1996 Act,
    the Commission first determined whether an offering met the
    definition of "wire communication," and if so, whether it was
    offered on a "common carrier" basis. The 1996 Act, however, while
    retaining the definition of "wire communication," also added new
    definitions of "telecommunications," "telecommunications service,"
    and "telecommunications carrier."[^20] The impact of these legal and
    definitional changes is not reflected in the record on remand, which
    argues against the imposition of common carrier regulation on the
    basis of that record.

8.  Based on the record before us regarding the dark fiber offerings
    subject to the remanded orders, we therefore find that it is not
    possible to conclude either that the BOCs are under a legal
    compulsion to serve the public indifferently, or that the BOCs
    voluntarily are offering those dark fiber services indifferently to
    the public. Consequently, we are unable to conclude at this time,
    based on this record, that the BOCs are offering dark fiber on a
    common carrier basis, or that the Commission should require dark
    fiber arrangements to be offered on a common carrier basis. In fact,
    the record provides no evidence of how the BOCs offer dark fiber as
    a service today, and thus no basis upon which the Commission
    reasonably could conclude that, on a going-forward basis, the public
    interest requires the BOCs to offer dark fiber on a common carrier
    basis. Nor does this record demonstrate harm to the public interest
    arising from the court's suspension of the remanded orders governing
    the relevant dark fiber arrangements. Given the lack of evidence
    here demonstrating that the dark fiber offerings are, or should be,
    common carrier services, we vacate the prior orders insofar as they
    subject the BOCs' dark fiber offerings to common carrier regulation.

# Ordering clause

9.  Accordingly, IT IS ORDERED that pursuant to sections 1, 3, 4,
    201-205, 251, 256, 303(r) of the Communications Act of 1934, as
    amended, 47 U.S.C. §§ 151, 153, 154, 201-205, 251, 256, 303(r), and
    section 706 of the Telecommunications Act of 1996, 47 U.S.C. § 157
    nt, this *Order on Remand* in CC Docket No. 88-166, Transmittal No.
    395, Transmittal No. 354, Transmittal Nos. 2039, 2062, and 2094,
    Transmittal No. 127, File No. W-P-C-6670, and File No. W-P-D-364, IS
    ADOPTED.

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

[^1]: *Southwestern Bell Tel. Co. v. FCC*, 19 F.3d 1475 (D.C. Cir. 1994)
    (*Dark Fiber Remand*).

[^2]: As a general legal matter, "ICB offerings refer to the carrier
    practice of providing a particular service in response to a specific
    request from a customer under individualized rates, terms, and
    conditions. . . . \[U\]nlike contract tariffs, although the tariffs
    containing the specific service offerings and ICB rates are filed
    with the Commission, ICB offerings are not immediately available to
    other prospective customers." *Southwestern Bell Telephone Company*,
    CC Docket No. 97-158, Transmittal No. 2633, Order Designating Issues
    for Investigation, 12 FCC Rcd 10231, 10242, para. 20 (CCB 1997)
    (citing *Price Cap Performance Review for Local Exchange Carriers*,
    CC Docket Nos. 94-1, 93-124, 93-197, Second Further Notice of
    Proposed Rulemaking, 11 FCC Rcd 858, 888 (1995); *Common Carrier
    Bureau Restates Commission Policy on Individual Case Basis Tariff
    Offerings*, Public Notice, 11 FCC Rcd 4001 (CCB 1995)). The
    Commission explained that "there are two types of ICB offerings: (1)
    those that provide a new technology for which little demand
    initially exists, but that later evolve into generally-available
    offerings as demand grows; and (2) those that are unique service
    arrangements offered to meet the needs of specific customers and
    that never evolve into a generally-available offering." *Local
    Exchange Carriers' Rates, Terms, and Conditions for Expanded
    Interconnection Through Physical Collocation for Special Access and
    Switched Transport*, CC Docket No. 93-162, Second Report and Order,
    12 FCC Rcd 18730, 18905, para. 428 (1997).

[^3]: *Local Exchange Carriers' Individual Case Basis DS3 Service
    Offerings; GTE Telephone Operating Companies Revisions to Tariff
    F.C.C. No.1*, CC Docket No. 88-136, Memorandum Opinion and Order, 4
    FCC Rcd 8634 (1989) (*ICB Order*).

[^4]: As the court itself notes, the precise legal status of these ICB
    tariff filings is an unresolved matter of dispute in this
    proceeding. *Dark Fiber Remand*, 19 F.3d at 1478 n.1 ("We are unable
    to determine with any confidence exactly why these ICB contracts
    were filed with the FCC."). In their comments and pleadings, the
    carriers frequently referred to the tariff filings as "ICB
    contracts." *See, e.g.*, Southwestern Bell Telephone Company's Reply
    to Oppositions and Comments to Petition for Reconsideration, CC
    Docket No. 88-136 at 4-5 (filed Oct. 1, 1990); U S WEST Petition for
    Partial Further Reconsideration, CC Docket No. 88-136 at 6-7 (filed
    Sept. 5, 1990); Reply of Local Area Telecommunications, Inc. to
    Oppositions to Petition for Partial Reconsideration and
    Clarification, CC Docket No. 88-136 at 4, 9 (filed Feb. 20, 1990);
    Pacific Bell Oppositions to Petitions for Reconsideration and
    Clarification, CC Docket No. 88-136 at 8 (filed Feb. 12, 1990). The
    D.C. Circuit, in *Dark Fiber Remand*, periodically uses this
    terminology as well. *See Dark Fiber Remand*, 19 F.3d at 1478 n.1,
    1480-81.

    The "ICB contract" terminology could be misleading as to the nature
    of the tariff filings and their relationship to underlying dark
    fiber contracts, and we thus decline to use the term "ICB contract"
    to refer to these filings. To avoid confusion we instead refer to
    these filing as "ICBs," "ICB arrangements," or the like.

[^5]: *Local Exchange Carriers' Individual Case Basis DS3 Service
    Offerings*, CC Docket No. 88-136, Memorandum Opinion and Order on
    Reconsideration, 5 FCC Rcd 4842, para. 33 (1990) (*ICB
    Reconsideration Order*).

[^6]: *Id*. at para. 33 n.15.

[^7]: *Local Exchange Carriers' Individual Case Basis DS3 Service
    Offerings,* *Bell Atlantic Telephone Companies Revisions to Tariff
    F.C.C. No. 1, Transmittal No. 395; BellSouth Telephone Companies
    Revisions to Tariff F.C.C. No. 4, Transmittal No. 354; Southwestern
    Bell Telephone Company Revisions to Tariff F.C.C. No. 68,
    Transmittal Nos. 2039, 2062, and 2094; US West Communications
    Revisions to Tariff F.C.C. No. 1, Transmittal No. 127*, CC Docket
    No. 88-136, Memorandum Opinion and Order, 6 FCC Rcd 4891 (1991);
    *Local Exchange Carriers' Individual Case Basis DS3 Service
    Offerings*, *Bell Atlantic Telephone Companies Revisions to Tariff
    F.C.C. No. 1, Transmittal No. 395; BellSouth Telephone Companies
    Revisions to Tariff F.C.C. No. 4, Transmittal No. 354; Southwestern
    Bell Telephone Company Revisions to Tariff F.C.C. No. 68,
    Transmittal No. 2039; US West Communications Revisions to Tariff
    F.C.C. No. 1, Transmittal No. 127*, CC Docket No. 88-136, Memorandum
    Opinion and Order, 6 FCC Rcd 4776 (1991); *Bell Atlantic Telephone
    Companies Revisions to Tariff F.C.C. No. 1, Transmittal No. 395;
    BellSouth Telephone Companies Revisions to Tariff F.C.C. No. 4,
    Transmittal No. 354; Southwestern Bell Telephone Company Revisions
    to Tariff F.C.C. No. 68, Transmittal No. 2039; US West
    Communications Revisions to Tariff F.C.C. No. 1, Transmittal No.
    127*, CC Docket No. 88-136, Memorandum Opinion and Order, 6 FCC Rcd
    1436 (CCB 1991); *Local Exchange Carriers' Individual Case Basis DS3
    Service Offerings*, *Petitions for Waiver of the Dark Fiber Filing
    Requirement, Petition for Emergency Relief,* CC Docket No. 88-136,
    Order, 5 FCC Rcd 6772 (CCB 1990) (*Dark Fiber Waiver Denial Order*).

[^8]: *Southwestern Bell Telephone Company, et al., Applications for
    Authority Pursuant to Section 214 of the Communications Act of 1934
    to Cease Providing Dark Fiber Service*, File Nos. W-P-C-6670,
    W-P-D-364, Memorandum Opinion and Order, 8 FCC Rcd 2589, 2593, para.
    17 (1993) (*Section 214 Order*) (citing 47 U.S.C. § 153(a)). In
    particular, in concluding that dark fiber services constitute "wire
    communication," the Commission analogized them to "dim fiber"
    services -- where the carrier lights the fiber at one end, and the
    customer lights the fiber from the other end -- which the BOCs
    already offered pursuant to tariff and without challenge to the
    Commission's Title II jurisdiction. *Id*. at 2593, para. 18.

[^9]: *Section 214 Order*, 8 FCC Rcd at 2589.

[^10]: We further note that certain Commission orders underlying those
    decisions were not subject to the D.C. Circuit's remand, but
    nonetheless subjected the BOCs' dark fiber offerings to common
    carrier regulation on the basis of the same reasoning ultimately
    rejected by the court in the *Dark Fiber Remand*. *See Dark Fiber
    Waiver Denial Order*, 5 FCC Rcd 6772; *Local Exchange Carriers'
    Individual Case Basis DS3 Service Offerings*, CC Docket No. 88-136,
    Order, 5 FCC Rcd 5919 (CCB 1990); *Local Exchange Carriers'
    Individual Case Basis DS3 Service Offerings*, CC Docket No. 88-136,
    Order, 5 FCC Rcd 5420 (CCB 1990); *ICB Reconsideration Order*, 5 FCC
    Rcd 4842.

[^11]: *Dark Fiber Remand*, 19 F.3d at 1484 (citing *NARUC v. FCC*, 525
    F.2d 630, 641, 644 n.76 (D.C. Cir. 1976) (*NARUC I*); *NARUC v.
    FCC*, 533 F.2d 601, 608-09 (D.C. Cir. 1976) (*NARUC II*)
    (collectively *NARUC*)).

[^12]: *Id*.

[^13]: The *Schools and Libraries FNPRM* recognized that, pending
    resolution of whether dark fiber service is a telecommunications
    service, schools and libraries may not receive support for dark
    fiber as a telecommunications service, but seeks comment generally
    on whether dark fiber service should be eligible for support.
    *Schools and Libraries Universal Service Support Mechanism*, Third
    Report and Order and Second Further Notice of Proposed Rulemaking,
    CC Docket No. 02-6, 18 FCC Rcd 26912, 26943-44, paras. 76-77 (2003)
    (*Schools and Libraries FNPRM*).

[^14]: *NARUC I*, 525 F.2d at 642.

[^15]: *See, e.g.*, Southwestern Bell Telephone Company's Reply to
    Oppositions to its Direct Case, CC Docket No. 88-136, Transmittal
    No. 2039, Exh. 2 (filed Apr. 15, 1991) (ICB tariff filings for
    numerous point-to-point dark fiber arrangements, with service
    expiration dates ranging from 1990-2000); Williams
    Telecommunications Group Petition for Emergency Relief, CC Docket
    No. 88-136, Transmittal No. 415, Attach. (filed Aug. 1, 1991)
    (point-to-point dark fiber arrangements in Louisiana effective from
    1985 through 2002); Southwestern Bell Telephone Company's Reply to
    Oppositions and Comments to Petition for Reconsideration, CC Docket
    No. 88-136 at 5 (filed Oct. 1, 1990) (noting that all its
    provisioned dark fiber services would have expired by 2000 pursuant
    to their original terms); U S WEST Petition for Partial Further
    Reconsideration, CC Docket No. 88-136 at 4 n.15 and Attach. A (filed
    Sept. 5, 1990) (listing U S WEST's point-to-point dark fiber
    arrangements provisioned in the late 1980s).

[^16]: *See, e.g.*, *id*.; *Dark Fiber Remand*, 19 F.3d at 1481 (dark
    fiber arrangements "were individually tailored arrangements
    negotiated to last for periods of five to ten years").

[^17]: *See, e.g.*, *Review of the Section 251 Unbundling Obligations of
    Incumbent Local Exchange Carriers, Implementation of the Local
    Competition Provisions of the Telecommunications Act of 1996,
    Deployment of Wireline Services Offering Advanced Telecommunications
    Capability,* CC Docket Nos. 01-338, 96-98, 98-147, Report and Order
    and Order on Remand and Further Notice of Proposed Rulemaking, 18
    FCC Rcd 16978, 17178, para. 333 & n.981 (2003) *(Triennial Review
    Order)* (holding that a competitive carrier that has obtained dark
    fiber on a long-term IRU basis should be treated as
    self-provisioning under network unbundling rules, in contrast to a
    competing carrier purchasing special access services)*, corrected
    by* Errata, 18 FCC Rcd 19020 (2003) (*Triennial Review Order
    Errata*)*, rev'd on other grounds, United States Telecom Ass'n v.
    FCC*, 359 F.3d 554 (D.C. Cir. 2004) (*USTA II*), *cert. denied sub
    nom. Nat'l Ass'n Regulatory Util. Comm'rs v. United States Telecomm
    Ass'n*, 125 S. Ct. 313, 316, 345 (2004); *Qwest Communications
    International*, File No. EB-02-IH-0674, Acct. No. 200332080012, FRN
    No. 0003605953, Order, 18 FCC Rcd 10299, 10305, at Consent Decree,
    para. 6 (2003) (describing dark fiber IRUs that Qwest was required
    to divest as a result of the *Qwest/U S WEST Merger Order*) (citing
    *Qwest Communications International Inc., and US West, Inc.
    Applications for Transfer of Control of Domestic and International
    Sections 214 and 310 Authorizations and Application to Transfer
    Control of a Submarine Cable Landing License*, CC Docket No. 99-272,
    Memorandum Opinion and Order, 15 FCC Rcd 5376 (2000)
    (*Qwest/U* *S WEST Merger Order*).

[^18]: *See, e.g.*, *Triennial Review Order*, 18 FCC Rcd at 17212, para.
    378 n.1160 (dark fiber rings); *Application of WorldCom, Inc. and
    MCI Communications Corporation for Transfer of Control of MCI
    Communications Corporation to WorldCom, Inc.*, CC Docket No. 97-211,
    Memorandum Opinion and Order, 13 FCC Rcd 18025, 18074, para. 86
    (1998) (*WorldCom-MCI Merger Order*) (noting that companies
    sometimes acquire dark fiber IRUs from undersea dark fiber cable
    owners).

[^19]: The Telecommunications Act of 1996 (the 1996 Act) amended the
    Communications Act of 1934, 47 U.S.C. § 151 *et seq.*

[^20]: *See* 47 U.S.C. §§ 153(43) (telecommunications), 153(44)
    (telecommunications carrier), 153(46) (telecommunications service),
    153(52) (wire communication).