**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of                 | *  | WC Docket No. 04-347         |
|                                  | *) |                              |
| Petition of South Slope          | ** |                              |
| Cooperative Telephone Company,   |    |                              |
| Inc. For an Order and Rule       | *  |                              |
| Pursuant to Section 251(h)(2) of | *) |                              |
| the Communications Act Declaring | ** |                              |
| that South Slope Cooperative     |    |                              |
| Telephone                        | *  |                              |
|                                  | *) |                              |
| Company, Inc. Shall Be Treated   | ** |                              |
| as an Incumbent Local Exchange   |    |                              |
| Carrier in the Iowa Exchanges of | *  |                              |
| Oxford, Tiffin and Solon         | *) |                              |
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+----------------------------------+----+------------------------------+

**NOTICE OF PROPOSED RULEMAKING**

**Adopted: October 7, 2008 Released: October 10, 2008**

By the Commission:

**Comment Date: (30 days after Federal Register publication of this
Notice)**

**Comment Reply Date: (51 days after Federal Register Publication of
this Notice)**

# Introduction

1.  In this Notice of Proposed Rulemaking,[^1] the Commission seeks
    comment on whether South Slope Cooperative Telephone Company, Inc.
    (South Slope) should be treated as an incumbent local exchange
    carrier (LEC) for purposes of section 251 of the Communications Act
    of 1934,[^2] as amended, (Communications Act or Act) in the Iowa
    exchanges of Oxford, Tiffin and Solon as provided for in section
    251(h)(2) of the Act.[^3] The Commission also requests comment on
    the appropriate regulatory treatment of South Slope and Iowa
    Telecommunications Services, Inc. (Iowa Telecom), the legacy
    incumbent LEC in those exchanges pursuant to section 251(h)(1) of
    the Act,[^4] if the Commission concludes that South Slope should be
    accorded incumbent LEC treatment in the Oxford, Tiffin and Solon
    exchanges.

# Background

2.  ***South Slope Petition***. On August 24, 2004, South Slope filed a
    petition with the Commission requesting that it be treated as an
    incumbent LEC in the Oxford, Tiffin and Solon exchanges.[^5] South
    Slope is a cooperative telephone company that provides local
    exchange service and exchange access service to approximately 19,500
    access lines in the general vicinity of Cedar Rapids and Iowa City,
    Iowa.[^6] In 2001, South Slope began to construct "fiber and copper
    (loop) facilities" in the Oxford, Tiffin and Solon exchanges with
    the objective of providing these exchanges with the same advanced
    services available to its cooperative members/customers in other
    exchanges.[^7] In addition to traditional local exchange service,
    South Slope states that it provides broadband service throughout
    these three exchanges.[^8] South Slope initially estimated that it
    served about 86 percent of the approximately 817 customers in
    Oxford, about 85 percent of the approximately 1,310 customers in
    Tiffin, and about 82 percent of the approximately 1,902 customers in
    Solon.[^9] South Slope stated that it had achieved this level of
    subscribership through facilities construction rather than the use
    of resale or unbundled network elements.[^10] South Slope has since
    updated these estimates, stating that it serves approximately 90
    percent of the subscribers in these three exchanges.[^11] Iowa
    Telecom is currently the incumbent LEC in these exchanges.[^12]

3.  ***Statutory Provisions.*** Section 251 of the Act establishes
    different pro-competitive requirements for different categories of
    carriers.[^13] Under section 251, incumbent LECs are subject to the
    most significant obligations, including non-discriminatory
    interconnection and unbundling obligations.[^14] Section 251(h)(1)
    defines an incumbent LEC as a local exchange carrier that, on the
    date of enactment of the Telecommunications Act of 1996, provided
    local exchange service in an area and was either a member of the
    National Exchange Carrier Association (NECA),[^15] or became a
    successor or assign of such a LEC.[^16] Section 251(h)(2) provides
    that the Commission may provide by rule for the treatment of a LEC
    as an incumbent LEC for the purposes of section 251 if a three part
    test is satisfied.[^17] Specifically, in order to find that a LEC
    should be treated as an incumbent LEC for purposes of section 251,
    the Commission must find that: (1) the LEC at issue occupies a
    market position within an area that is comparable to the position of
    a legacy incumbent LEC; (2) the LEC has "substantially replaced" the
    legacy incumbent LEC; and (3) the reclassification is consistent
    with the public interest, convenience, and necessity and the
    purposes of section 251.[^18]

4.  ***Commission Orders.*** In 2006, the Commission accorded Mid-Rivers
    Telephone Cooperative, Inc. (Mid-Rivers) incumbent LEC status
    pursuant to section 251(h)(2) in the Terry, Montana exchange where
    it had overbuilt the facilities of Qwest, the legacy incumbent
    LEC.[^19] In that Order, the Commission found that the Terry
    exchange was an appropriate area for consideration of Mid-Rivers'
    market position under section 251(h)(2)(A) and that Mid-Rivers
    occupied a market position comparable to that of a legacy incumbent
    LEC in the Terry exchange.[^20] The Commission also found that
    Mid-Rivers had "substantially replaced" Qwest in the Terry
    exchange,[^21] and that treating Mid-Rivers as an incumbent LEC for
    purposes of section 251 in the Terry exchange was consistent with
    the public interest.[^22] The Commission also noted that the
    treatment of Mid-Rivers as an incumbent for purposes of interstate
    access charges, federal universal service support and other
    interstate purposes would be addressed as appropriate in separate
    proceedings.[^23] The Commission provided, however, that Mid-Rivers
    would remain subject to existing interstate competitive LEC
    non-dominant regulation pending further Commission action,
    indicating that it expected to address Mid-Rivers' long-term
    interstate regulatory treatment when Mid-Rivers filed a study area
    boundary waiver.[^24]

5.  The Commission also addressed the subsequent interstate regulatory
    treatment of Qwest in the Terry, Montana exchange.[^25] The
    Commission concluded that the statute does not automatically change
    the status of the legacy incumbent LEC and make it a competitive LEC
    when another LEC is designated as an incumbent LEC in a particular
    area under section 251(h)(2). Instead, the Commission found that the
    Communications Act and the Commission's rules provide for the
    elimination of unnecessary regulation through the removal of
    dominant carrier regulation and forbearance under section 10 of the
    Act.[^26] The Commission found that Qwest should be treated as a
    non-dominant carrier in the Terry exchange for purposes of its
    interstate service offerings.[^27] The Commission did not address
    broader regulatory relief through forbearance at that time, although
    it made clear that Qwest was welcome to pursue such relief. Qwest
    subsequently filed a request for forbearance[^28] and the Commission
    granted most of the relief ultimately requested.[^29]

# DISCUSSION

### A. Section 251(h)(2) -- Treatment as an Incumbent LEC for Purposes of Section 251 {#a.-section-251h2-treatment-as-an-incumbent-lec-for-purposes-of-section-251 .unnumbered}

6.  We seek comment on whether South Slope satisfies the three-part test
    in section 251(h)(2) and should be treated as an incumbent LEC for
    purposes of section 251 in the Solon, Tiffin and Oxford exchanges.
    We do not address the treatment of South Slope as an incumbent in
    these three exchanges for purposes of interstate access charges,
    federal universal service support and other interstate purposes.
    These issues will be addressed as appropriate in other proceedings,
    including any study area boundary waiver petition that South Slope
    may file with the Commission.

7.  ***Section 251(h)(2)(A) -- Comparable Market Position Within an
    Area*.** Section 251(h)(2)(A) of the three part test for treatment
    of a LEC as an incumbent LEC for purposes of section 251 requires
    that "such carrier occup\[y\] a position in the market for telephone
    exchange service within an area that is comparable to the position
    occupied by \[a legacy incumbent LEC.\]"[^30] In the *Mid-Rivers
    Order*, the Commission concluded that the Terry exchange was the
    relevant area for analyzing Mid-Rivers' market position, and found
    that Mid-Rivers occupied a position in the market for telephone
    exchange service within the Terry exchange comparable to that of a
    legacy incumbent LEC based on Mid-Rivers' extensive facilities
    build-out and estimates of Mid-Rivers' subscribership in the Terry
    exchange ranging from 85 to 93 percent.[^31] Based on this analysis,
    we tentatively conclude that the Solon, Tiffin and Oxford exchanges
    are the relevant area for analyzing South Slope's market position.
    We also tentatively conclude that South Slope occupies a market
    position in this area that is comparable to that occupied by a
    legacy incumbent LEC in light of South Slope's extensive facilities
    build-out and its estimate that it now provides local exchange
    service to approximately 90 percent of the subscribers in these
    exchanges over its own facilities.[^32] We seek comment on these
    tentative conclusions.

8.  ***Section 251(h)(2)(B) -- Substantially Replaced Legacy Incumbent
    LEC.*** The section 251(h)(2)(B) portion of the three part test for
    treatment as an incumbent LEC for purposes of section 251 requires a
    finding that "such carrier has substantially replaced an incumbent
    LEC described in paragraph (1)" \-- in this case, Iowa Telecom.[^33]
    In the *Mid-Rivers Order*, the Commission concluded that Mid-Rivers
    had substantially replaced Qwest, the legacy incumbent LEC, because
    Mid-Rivers served approximately 85 to 93 percent of the access lines
    in the Terry exchange largely over its own facilities.[^34] In light
    of South Slope's estimate that it serves approximately 90 percent of
    the subscribers in the Solon, Tiffin and Oxford exchanges over its
    own facilities,[^35] we tentatively conclude that South Slope has
    substantially replaced Iowa Telecom as the local exchange service
    provider in these exchanges. We seek comment on this tentative
    conclusion.

9.  ***Section 251(h)(2)(C) -- Consistent with the Public Interest.***
    The section 251(h)(2)(C) portion of the three part test requires
    that the Commission find that treating a LEC as an incumbent LEC for
    purposes of section 251 "is consistent with the public interest,
    convenience, and necessity and with the purposes of \[section
    251\]."[^36] In the *Mid-Rivers Order*, the Commission noted that
    the public interest analysis under section 251(h)(2)(C) focuses on
    the role of incumbent carriers under section 251 specifically. It
    does not address whether a LEC to be treated as an incumbent LEC for
    purposes of section 251 should be treated as an incumbent LEC for
    purposes of statutory provisions or Commission rules other than
    section 251.[^37] The Commission concluded that treating Mid-Rivers
    as an incumbent LEC for purposes of section 251 satisfied the
    section 251(h)(2)(C) public interest requirement.[^38] We seek
    comment on whether the treatment of South Slope as an incumbent LEC
    for purposes of section 251 in the Solon, Tiffin and Oxford
    exchanges would satisfy that public interest standard.

## B. Subsequent Regulation {#b.-subsequent-regulation .unnumbered}

10. As previously noted, in the *Mid-Rivers Order*, the Commission found
    that the Act does not automatically convert the legacy incumbent LEC
    into a competitive LEC when another LEC is designated as an
    incumbent LEC in a particular area under section 251(h)(2). Instead,
    the Commission stated that the elimination of unnecessary regulation
    is appropriately addressed through the removal of dominant carrier
    regulation and forbearance under section 10 of the Act.[^39]

11. ***Iowa Telecom.*** In the *Mid-Rivers Order*, the Commission found
    that Qwest lacked market power in the Terry exchange and should be
    treated as a non-dominant carrier for its interstate
    telecommunications services in that exchange.[^40] In reaching this
    conclusion, the Commission assessed whether Qwest had market power
    in the Terry exchange using the Commission's analytical framework
    set out in the *AT&T Reclassification Order*.[^41] The Commission
    subsequently granted Qwest forbearance from additional regulatory
    requirements in response to a petition that it filed.[^42]
    Consistent with these orders, we tentatively conclude that Iowa
    Telecom should be given non-dominant regulatory treatment for
    interstate purposes in the Oxford, Tiffin and Solon exchanges, if
    South Slope is accorded incumbent LEC status for purposes of
    section 251. We seek comment on this tentative conclusion. Iowa
    Telecom may also request additional deregulation in the Oxford,
    Tiffin and Solon exchanges by filing a formal petition for
    forbearance consistent with the Commission's rules.

12. ***South Slope.*** In the *Mid-Rivers Order*, the Commission did not
    address the appropriate long-term regulatory treatment of Mid-Rivers
    in the Terry exchange.[^43] As a result, Mid-Rivers remained subject
    to existing competitive LEC non-dominant regulation for its
    interstate telecommunications services pending further Commission
    action.[^44] Given Mid-Rivers' expressed intention of filing a study
    area boundary waiver petition seeking to incorporate the Terry
    exchange into its existing study area, and including the Terry lines
    in the NECA pool, the Commission noted that Mid-Rivers may wish to
    have its Terry operations subject to dominant carrier
    regulation.[^45] In light of this, the Commission decided to address
    Mid-Rivers' regulatory classification in conjunction with the study
    area boundary waiver request that Mid-Rivers stated it planned to
    file.[^46]

13. We seek comment on whether we should address, in this proceeding,
    the long-term regulation of South Slope's interstate operations in
    the Oxford, Tiffin and Solon exchanges if South Slope is accorded
    section 251(h)(2) incumbent LEC status. If the Commission addresses
    long-term regulation of South Slope's interstate operations in these
    exchanges in the current proceeding, what regulations should apply
    to South Slope's interstate service offerings? For example, should
    South Slope be regulated as a dominant carrier in these three
    exchanges if it is treated as a section 251(h)(2) incumbent LEC for
    purposes of section 251?

# PROCEDURAL MATTERS

## A. Initial Regulatory Flexibility Certification  {#a.-initial-regulatory-flexibility-certification .unnumbered}

14. In this Notice, the Commission seeks comment on whether South Slope
    should be treated as an incumbent LEC for purposes of section 251 of
    the Act[^47] in the Iowa exchanges of Oxford, Tiffin and Solon
    pursuant to section 251(h)(2) of the Act. The Commission also
    requests comment on the appropriate regulatory treatment of South
    Slope and Iowa Telecom, the legacy incumbent LEC in those exchanges,
    if the Commission concludes that South Slope should be accorded
    incumbent LEC treatment in these exchanges under section 251(h)(2)
    of the Act.

15. South Slope is a cooperative telephone company that provides local
    exchange service and exchange access service to approximately 19,500
    access lines in the general vicinity of Cedar Rapids and Iowa City,
    Iowa. Iowa Telecom is the legacy incumbent LEC that serves the
    Oxford, Solon, and Tiffin, Iowa exchanges. Because the proposed rule
    affects only South Slope and Iowa Telecom, we find that any
    potential action in this proceeding would not affect a substantial
    number of small entities.

16. Therefore, we certify that the proposals in this Notice, if adopted,
    will not have a significant economic impact on a substantial number
    of small entities.

17. The Commission will send a copy of the Notice, including a copy of
    this Initial Regulatory Flexibility Certification, to the Chief
    Counsel for Advocacy of the SBA.[^48] This initial certification
    will also be published in the Federal Register.[^49]

## B. Paperwork Reduction Act {#b.-paperwork-reduction-act .unnumbered}

18. This document does not contain proposed information collection(s)
    subject to the Paperwork Reduction Act of 1995 (PRA), Public Law
    104-13. In addition, therefore, it does not contain any new or
    modified "information collection burden for small business concerns
    with fewer than 25 employees," pursuant to the Small Business
    Paperwork Relief Act of 2002, Public Law 107-198, *see* 47 U.S.C.  §
    3506(c)(4).

## C. Other Procedural Matters {#c.-other-procedural-matters .unnumbered}

### Ex Parte Presentations

19. The rulemaking this Notice initiates shall be treated as a
    "permit-but-disclose" proceeding in accordance with the Commission's
    *ex parte* rules.[^50] Persons making oral *ex parte* presentations
    are reminded that memoranda summarizing the presentations must
    contain summaries of the substance of the presentations and not
    merely a listing of the subjects discussed. More than a one or two
    sentence description of the views and arguments presented generally
    is required.[^51] Other requirements pertaining to oral and written
    presentations are set forth in section 1.1206(b) of the Commission's
    rules.[^52]

### Comment Filing Procedures

20.  Pursuant to sections 1.415 and 1.419 of the Commission's
    rules,[^53] interested parties may file comments and reply comments
    regarding the Notice on or before the dates indicated on the first
    page of this document. **All filings related to this Notice of
    Proposed Rulemaking should refer to WC Docket No. 04-347**. Comments
    may be filed using: (1) the Commission's Electronic Comment Filing
    System (ECFS), (2) the Federal Government's eRulemaking Portal,
    or (3) by filing paper copies. *See* *Electronic Filing of Documents
    in Rulemaking Proceedings*, 63 FR 24121 (1998).

-   Electronic Filers: Comments may be filed electronically using the
    Internet by accessing the ECFS: <http://www.fcc.gov/cgb/ecfs/> or
    the Federal eRulemaking Portal:
    [http://www.regulations.gov](http://www.regulations.gov/). Filers
    should follow the instructions provided on the website for
    submitting comments.

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-   ECFS filers must transmit one electronic copy of the comments for WC
    Docket No. 04-347. In completing the transmittal screen, filers
    should include their full name, U.S. Postal Service mailing address,
    and the applicable docket number. Parties may also submit an
    electronic comment by Internet e-mail. To get filing instructions,
    filers should send an e-mail to <ecfs@fcc.gov>, and include the
    following words in the body of the message, "get form." A sample
    form and directions will be sent in response.

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-   Paper Filers: Parties who choose to file by paper must file an
    original and four copies of each filing. Filings can be sent by hand
    or messenger delivery, by commercial overnight courier, or by
    first-class or overnight U.S. Postal Service mail (although we
    continue to experience delays in receiving U.S. Postal Service
    mail). All filings must be addressed to the Commission's Secretary,
    Marlene H. Dortch, Office of the Secretary, Federal Communications
    Commission, 445 12th Street, S.W., Washington, D.C. 20554.

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-   The Commission's contractor will receive hand-delivered or
    messenger-delivered paper filings for the Commission's Secretary at
    236 Massachusetts Avenue, N.E., Suite 110, Washington, D.C. 20002.
    The filing hours at this location are 8:00 a.m. to 7:00 p.m. All
    hand deliveries must be held together with rubber bands or
    fasteners. Any envelopes must be disposed of [before]{.underline}
    entering the building.

-   Commercial overnight mail (other than U.S. Postal Service Express
    Mail and Priority Mail) must be sent to 9300 East Hampton Drive,
    Capitol Heights, MD 20743.

-   U.S. Postal Service first-class, Express, and Priority mail should
    be addressed to 445 12^th^ Street, S.W., Washington D.C. 20554.

21. Parties should send a copy of their filings to the Competition
    Policy Division, Wireline Competition Bureau, Federal Communications
    Commission, Room 5-C140, 445 12th Street, S.W., Washington, D.C.
    20554, or by e-mail to cpdcopies@fcc.gov. Parties shall also serve
    one copy with the Commission's copy contractor, Best Copy and
    Printing, Inc. (BCPI), Portals II, 445 12th Street, S.W., Room
    CY-B402, Washington, D.C. 20554, (202) 488-5300, or via e-mail to
    fcc@bcpiweb.com.

22. Documents in WC Docket No. 04-347 will be available for public
    inspection and copying during business hours at the FCC Reference
    Information Center, Portals II, 445 12th Street S.W., Room CY-A257,
    Washington, D.C. 20554. The documents may also be purchased from
    BCPI, telephone (202) 488-5300, facsimile (202) 488-5563, TTY (202)
    488-5562, e-mail <fcc@bcpiweb.com>.

### Accessible Formats

23. To request materials in accessible formats for people with
    disabilities (Braille, large print, electronic files, audio format),
    send an e-mail to <fcc504@fcc.gov> or call the Consumer and
    Governmental Affairs Bureau at 202-418-0530 (voice) or 202-418-0432
    (TTY). Contact the FCC to request reasonable accommodations for
    filing comments (accessible format documents, sign language
    interpreters, CART, etc.) by e‑mail: FCC504@fcc.gov; phone:
    202-418-0530 or TTY: 202-418-0432.

# ORDERING CLAUSES

24. Accordingly, IT IS ORDERED that, pursuant to the authority contained
    in sections 1, 2, 4(i)-4(j), 201, 203, 214, 251, and 303(r) of the
    Communications Act of 1934, as amended, 47 U.S.C. §§ 151, 152,
    154(i)-(j), 201, 203, 214, 251, 303(r), this Notice of Proposed
    Rulemaking IS ADOPTED.

25. IT IS FURTHER ORDERED that the Commission's Consumer and
    Governmental Affairs Bureau, Reference Information Center, SHALL
    SEND a copy of this Notice, including the Initial Regulatory
    Flexibility Certification, to the Chief Counsel for Advocacy of the
    Small Business Administration.

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

[^1]: We are addressing the section 251(h)(2) status of South Slope in
    these exchanges through a rulemaking proceeding consistent with our
    prior practice and the relevant statutory language. *See* *Petition
    of Mid-Rivers Telephone Cooperative, Inc. for Order Declaring It to
    Be an Incumbent Local Exchange Carrier in Terry, Montana Pursuant to
    Section 251(h)(2*), WC Docket No. 02-78, Notice of Proposed
    Rulemaking, 19 FCC Rcd 23070 (2004). Section 251(h)(2) refers to
    Commission action "by rule" to treat a local exchange carrier (LEC)
    as an incumbent LEC for purposes of section 251. 47 U.S.C. §
    251(h)(2).

[^2]: 47 U.S.C. § 251.

[^3]: 47 U.S.C. § 251(h)(2).

[^4]: 47 U.S.C. § 251(h)(1).

[^5]: *See generally* Petition of South Slope Cooperative Telephone
    Company, Inc. For an Order and Rule Pursuant to Section 251(h)(2) of
    the Communications Act Declaring that South Slope Cooperative
    Telephone Company, Inc. Shall Be Treated As an Incumbent Local
    Exchange Carrier in the Iowa Exchanges of Oxford, Tiffin and Solon,
    WC Docket No. 04-347 at 1 (filed Aug. 24, 2004) (South Slope
    Petition); *see also* *Pleading Cycle Established For Comments on
    Petition For Order Declaring South Slope Incumbent Local Exchange
    Carrier in Iowa Exchanges of Oxford, Tiffin, and Solon*, WC Docket
    No. 04-347, Public Notice, 19 FCC Rcd 17480 (2004). Iowa Telecom,
    Qwest Communications International, Inc. (Qwest), and the Iowa
    Utilities Board (Iowa Board) filed comments. South Slope, the
    National Telecommunications Cooperative Association, the Rural Iowa
    Independent Telephone Association, and the Iowa Board filed reply
    comments.

[^6]: South Slope Petition at 1-2.

[^7]: *Id*. at 3.

[^8]: *Id*. at 6.

[^9]: *Id.* at 3.

[^10]: *Id*.; South Slope Reply at 11.

[^11]: Letter from Benjamin H. Dickens, Jr. and Mary J. Sisak, Counsel
    for South Slope Cooperative Telephone Company, Inc., to Marlene H.
    Dortch, Secretary, FCC, WC Docket No. 04-347 (filed Jan. 29, 2007)
    (South Slope January 2007 *Ex Parte* Letter). In particular, South
    Slope estimates that it serves 90.2 percent of the dial tone
    subscribers in the Solon exchange, 89.6 percent of the dial tone
    subscribers in the Tiffin exchange and 91.6 percent of the dial tone
    subscribers in the Oxford exchange. *Id*.

[^12]: These exchanges were originally served by GTE Midwest, Inc.,
    which sold them to Iowa Telecom as part of a larger transaction.
    Iowa Telecom Opposition at 5; *see also* South Slope Petition at 3.

[^13]: *See* 47 U.S.C. § 251(a)-(c). All telecommunications carriers are
    subject to the requirements in section 251(a) of the Act. *See* 47
    U.S.C. § 251(a). In addition to those requirements, local exchange
    carriers are also subject to the requirements of section 251(b).
    *See* 47 U.S.C. § 251(b). Incumbent local exchange carriers are
    subject to the requirements of section 251(c) in addition to all of
    the requirements applicable to telecommunications carriers and local
    exchange carriers. *See* 47 U.S.C. § 251(c).

[^14]: Section 251(c) obligations of incumbent LECs include the duty: to
    negotiate interconnection agreements in good faith; to provide
    specified non-discriminatory interconnection to requesting
    telecommunications carriers; to provide requesting
    telecommunications carriers with unbundled access to the incumbent
    LEC's network elements; to offer certain telecommunications services
    for resale at wholesale rates; to provide public notice of changes
    affecting transmission and routing of services using the incumbent
    LEC's facilities or affecting the interoperability of its
    facilities; and to provide physical collocation of certain equipment
    belonging to other telecommunications carriers. 47 U.S.C. §
    251(c)(1)-(6).

[^15]: NECA is an association, established by the Commission, for all
    "telephone companies that participate in the distribution of Carrier
    Common Line revenue requirement, pay long term support to
    association Common Line tariff participants, or receive payments
    from the transitional support fund administered by the association."
    47 C.F.R. § 69.601(b). The association was established "in order to
    prepare and file access charge tariffs on behalf of all telephone
    companies that do not file separate tariffs or concur in a joint
    access tariff of another telephone company for all access elements."
    47 C.F.R. § 69.601(a).

[^16]: 47 U.S.C. § 251(h)(1). We refer to these incumbent LECs as legacy
    incumbent LECs.

[^17]: 47 U.S.C. § 251(h)(2); *see also* 47 C.F.R. § 51.223
    (implementing section 251(h)(2) of the Act).

[^18]: 47 U.S.C. § 251(h)(2); *see Implementation of the Local
    Competition Provisions in the Telecommunications Act of 1996*;
    *Interconnection Between Local Exchange Carriers and Commercial
    Mobil Radio Service Providers*, CC Docket Nos. 96-98, 95-185, First
    Report and Order, 11 FCC Rcd 15499, 16110, para. 1248 (1996)
    (subsequent history omitted) (stating that a "clear and convincing"
    showing should be required to satisfy the requirements of section
    251(h)(2)).

[^19]: *See* *Petition of Mid-Rivers Telephone Cooperative, Inc. for
    Order Declaring It to Be an Incumbent Local Exchange Carrier in
    Terry, Montana Pursuant to Section 251(h)(2)*, WC Docket No. 02-78,
    Report and Order, 21 FCC Rcd 11506 (2006) (*Mid-Rivers Order*). In
    the Commission's only prior section 251(h)(2) decision, it found
    that the Guam Telephone Authority (GTA) should be treated as an
    incumbent LEC pursuant to this provision. The circumstances involved
    differed significantly from those in *Mid-Rivers* since GTA was the
    sole provider of local exchange service in Guam, but did not qualify
    as an incumbent LEC under section 251(h)(1) because it had not been
    a member of NECA on February 8, 1996, as required by the statute,
    and was not a successor or assign of such an incumbent LEC. *See
    Guam Public Utilities Commission Petition for Declaratory Ruling
    Concerning Section 3(37) and 251(h) of the Communications Act;
    Treatment of the Guam Telephone Authority and Similarly Situated
    Carriers as Incumbent Local Exchange Carriers under Section
    251(h)(2) of the Communications Act*, CCB Pol. 96-18, CC Docket No.
    97-134, Declaratory Ruling and Notice of Proposed Rulemaking, 12 FCC
    Rcd 6925-26, para. 1 (1997); *Treatment of the Guam Telephone
    Authority and Similarly Situated Carriers as Incumbent Local
    Exchange Carriers under Section 251(h)(2) of the Communications
    Act*, CC Docket No. 97-134, Report and Order, 13 FCC Rcd 13765
    (1998).

[^20]: *Mid-Rivers Order*, 21 FCC Rcd at 11510-12, paras. 9-13.

[^21]: *Id.* at 11513-14, paras. 14-15.

[^22]: *Id*. at 11514-15, paras. 16-19.

[^23]: *Id*. at 11509, para. 8. On March 14, 2008, Mid-Rivers filed a
    petition for waiver of the Commission's study area boundary freeze
    in order to incorporate its Terry, Montana operations into its
    pre-existing Montana study area in which it is the legacy incumbent
    LEC. *See* Mid-Rivers Telephone Cooperative, Inc. Petition for
    Waiver of the Definition of "Study Area" of the Appendix-Glossary of
    Part 36 of the Commission's Rules; Petition for Waiver of Section
    69.3(e)(11) of the Commission's Rules, CC Docket No. 96-45 (filed
    Mar. 14, 2008). The Wireline Competition Bureau sought comment on
    Mid-Rivers' petition. *See* *Comment Sought on the Petition of
    Mid-Rivers Telephone Cooperative, Inc. to Waive the Study Area
    Boundary Freeze, as Codified in Part 36, and Section 69.39(e)(11) of
    the Commission's Rules*, CC Docket No. 96-45, Public Notice, 23 FCC
    Rcd 5558 (2008).

[^24]: *Mid-Rivers Order*, 21 FCC Rcd at 11521-22, para. 34.

[^25]: *Id*. at 11515-21, paras. 20-34.

[^26]: *Id*. at 11516-17, paras. 22-23 (citing 47 U.S.C. § 160).

[^27]: *Id*. at 11518-21, paras. 25-34.

[^28]: *Id*. at 11515-16, 11517-18, paras. 20, 24. *See* *Pleading Cycle
    Established for Comments on Qwest Corporation's Petition for
    Forbearance under 47 U.S.C. § 160(c) from Sections 251(c) and 271(c)
    and from Incumbent Local Exchange Carrier Treatment in the Terry,
    Montana Local Exchange*, WC Docket No. 07-9, Public Notice, 22 FCC
    Rcd 2173 (WCB 2007); *Qwest Petition for Forbearance Under 47 U.S.C.
    § 160(c) from Resale, Unbundling, and Other Incumbent Local Exchange
    Requirements Contained in Sections 251 and 271 of the
    Telecommunications Act of 1996 in the Terry, Montana Exchange*, WC
    Docket No. 07-9, Order, 23 FCC Rcd 100 (WCB 2008) (extending date
    for action on forbearance request).

[^29]: *Qwest Petition for Forbearance Under 47 U.S.C. § 160(c) from
    Resale, Unbundling and Other Incumbent Local Exchange Requirements
    Contained in Sections 251 and 271 of the Telecommunications Act of
    1996 in the Terry, Montana Exchange,* WC Docket No. 07-9, Memorandum
    Opinion and Order, 23 FCC Rcd 7257 (2006). Qwest withdrew its
    request for forbearance from sections 224, 259, 275, and
    271(c)(2)(B)(iii). *See* Letter from Daphne E. Butler, Corporate
    Counsel, Qwest, to Marlene H. Dortch, Secretary, FCC, WC Docket No.
    07-9 (filed Mar. 28, 2008); Letter from Daphne E. Butler, Corporate
    Counsel, Qwest, to Marlene H. Dortch, Secretary, FCC, WC Docket No.
    07-9 (filed Mar. 31, 2008).

[^30]: 47 U.S.C. § 251(h)(2)(A).

[^31]: *Mid-Rivers Order*, 21 FCC Rcd at 11510-12, paras. 9-13. The
    Commission stated that "even the lowest estimates show a very high
    subscribership level such that we need not resolve the differences
    in the record." *Id*. at 11511, n.33.

[^32]: South Slope January 2007 *Ex Parte* Letter; South Slope Petition
    at 3; South Slope Reply at 11.

[^33]: 47 U.S.C. § 251(h)(2)(B).

[^34]: *Mid-Rivers Order*, 21 FCC Rcd at 11513-14, paras. 14-15.

[^35]: *See* South Slope January 2007 *Ex Parte* Letter. *See also* note
    32 *supra*.

[^36]: 47 U.S.C. § 251(h)(2)(C).

[^37]: *Mid-Rivers Order*, 21 FCC Rcd at 11514, para. 17.

[^38]: *Id*. at 11514-15, paras. 18-19.

[^39]: *Id*. at 11516-17, paras. 22-23 (citing 47 U.S.C. § 160). In the
    *Mid-Rivers Order*, we also indicated that Commission action on the
    study area boundary waiver petition that Mid-Rivers stated it
    planned to file asking that the Terry exchange be included in its
    study area could be accompanied by further changes in the regulatory
    status of Qwest in the Terry exchange. *Id*. at 11521-22, para. 35.

[^40]: *Id*. at 11519-21, paras. 29-34. Dominant carriers are subject to
    price cap or rate-of-return regulation, and must file tariffs and
    cost support for some services on a minimum of seven or fifteen
    days' notice. *See* 47 U.S.C. §§ 203(b), 204(a)(3); *see also* 47
    C.F.R. §§ 61.38, 61.41, 61.58. The Commission has found that direct
    rate regulation is generally not necessary for non-dominant
    carriers, and has allowed such carriers to file tariffs on one day's
    notice without cost support. *See* 47 C.F.R. § 61.23; *see also*
    *Tariff Filing Requirements for Non-Dominant Common Carriers*, CC
    Docket No. 93-36, Order, 10 FCC Rcd 13653, 13654, paras. 4-5 (1995).
    In addition, non-dominant carriers are required to wait only 30 days
    before their applications to discontinue, reduce or impair service
    can be granted, as opposed to a 60-day waiting period for dominant
    carriers. *See* 47 C.F.R. § 63.71(c). Moreover, non-dominant
    carriers are accorded presumptive streamlined treatment under
    section 214 of the Act for certain types of transfers of control
    although dominant carriers must follow more rigorous procedures.
    *See* 47 C.F.R. § 63.03(b).

[^41]: *See* *Mid-Rivers Order*, 21 FCC Rcd at 11519-20, para. 29; *see
    also Motion of AT&T Corp. to Be Reclassified as a Non-Dominant
    Carrier*, 11 FCC Rcd 3271, 3293-94, paras. 38-39 (1995). In
    assessing whether Qwest should continue to be treated as a dominant
    carrier in the Terry exchange, the Commission considered the
    following four factors: (1) market share; (2) supply elasticity; (3)
    demand elasticity; and (4) Qwest's cost structure, size and
    resources. *Mid-Rivers Order,* 21 FCC Rcd at 11519-20, para 29.

[^42]: *See* note 29 and accompanying text *supra*.

[^43]: *Mid-Rivers Order*, 21 FCC Rcd at 11521-22, para. 35.

[^44]: *Id.*

[^45]: *Id*.

[^46]: *Id*.

[^47]: 47 U.S.C. § 251.

[^48]: 5 U.S.C. § 605(b).

[^49]: *Id*.

[^50]: 47 C.F.R. §§ 1.200 *et seq*.

[^51]: *See* 47 C.F.R. § 1.1206(b)(2).

[^52]: 47 C.F.R. § 1.1206(b).

[^53]: 47 C.F.R. §§ 1.415, 1.419.