Before the

Federal Communications Commission

Washington, D.C. 20554

+----------------------------------+----+------------------------------+
| In the Matter of                 | )  | File No. EB-04-MD-010        |
|                                  |    |                              |
| AT&T Corp.,                      | )  |                              |
|                                  |    |                              |
| Complainant,                     | )  |                              |
|                                  |    |                              |
| v\.                              | )  |                              |
|                                  |    |                              |
| BellSouth Telecommunications,    | )  |                              |
| Inc.,                            |    |                              |
|                                  | )  |                              |
| Defendant.                       |    |                              |
|                                  | )  |                              |
|                                  |    |                              |
|                                  | )  |                              |
|                                  |    |                              |
|                                  | )  |                              |
+----------------------------------+----+------------------------------+

ORDER ON RECONSIDERATION

Adopted: April 11, 2005 Released: April 11, 2005

By the Commission:

# **introduction**

1.  In this Order on Reconsideration, we dismiss a petition that Sprint
    Communications Co., L.P. ("Sprint") filed[^1] seeking
    reconsideration of our Memorandum Opinion and Order[^2] resolving a
    formal complaint filed by AT&T Corp. Inc. ("AT&T") against BellSouth
    Telecommunications, Inc. ("BellSouth") under section 208 of the
    Communications Act of 1934, as amended ("the Act").[^3] We find that
    Sprint has failed to satisfy one of the two requirements for
    non-parties to seek reconsideration of a Commission order in an
    adjudicatory proceeding.[^4]

    II\. BACKGROUND

2.  Briefly, and in pertinent part, the *AT&T/BellSouth Order* found
    that one of BellSouth's optional tariff discount plans for special
    access services, the Transport Savings Plan ("TSP"), discriminated
    in favor of BellSouth's interexchange affiliate, BellSouth Long
    Distance, Inc. ("BellSouth Long Distance"), in violation of section
    272 of the Act.[^5] The *AT&T/BellSouth Order* directed BellSouth to
    amend the TSP so that (i) TSP customers cannot renew participation
    in the Plan, and (ii) the TSP will terminate on June 9, 2005.[^6]

3.  Sprint's petition for reconsideration seeks to modify the remedy for
    BellSouth's violation of section 272.[^7] Although Sprint is a TSP
    customer,[^8] Sprint was not a party to the complaint proceeding,
    and never sought to participate in the complaint proceeding in any
    way. Both of the actual parties to the complaint proceeding -- AT&T
    and BellSouth -- oppose non-party Sprint's petition.[^9]

    III\. DISCUSSION

4.  Under section 405(a) of the Act, a non-party to a Commission
    adjudication may seek reconsideration of the order if the non-party
    is "aggrieved" or "adversely affected" by the order.[^10] To
    implement section 405(a) of the Act, section 1.106(b)(1) of our
    rules provides, in pertinent part:

    If the petition \[for reconsideration\] is filed by a person who is
    not a party to the proceeding, it shall state with particularity the
    manner in which the person's interests are adversely affected by the
    action taken, *and shall show good reason why it was not possible
    for him to participate in the earlier stages of the
    proceeding*.[^11]

    A failure to demonstrate either of those two requirements set forth
    in rule 1.106(b)(1) means that a non-party's reconsideration
    petition will not be considered.[^12]

5.  Here, petitioner Sprint was not a party to this complaint
    proceeding. In an attempt to satisfy the two requirements of rule
    1.106(b)(1), Sprint argues that, because it is a TSP customer, the
    Commission's remedy creates a likelihood of harm to Sprint.[^13]
    Sprint also argues that, because third parties "ordinarily" have no
    right to participate or intervene in a section 208 complaint
    proceeding, and because it could not have anticipated that the
    Commission's resolution of AT&T's complaint against BellSouth would
    result in the TSP's termination, Sprint could not have participated
    in this proceeding at an earlier stage.[^14]

6.  Applying rule 1.106(b)(1) here, we find that Sprint has failed to
    demonstrate good reason why it was not possible for Sprint to
    participate at an earlier stage of this complaint proceeding.[^15]
    First, although third parties rarely participate in formal complaint
    proceedings, Sprint had every right and opportunity to petition to
    file an amicus brief or seek to intervene.[^16] Sprint did
    neither.[^17] Second, "surprise" at the outcome of a Commission
    proceeding does not ordinarily excuse a failure to attempt to
    participate earlier in the proceeding.[^18] In any event, Sprint had
    no reasonable basis to be "surprised" at the remedy provided by the
    *AT&T/BellSouth* *Order*. For example, the briefs and other
    pleadings made clear that termination of the TSP was one potential
    remedy that the parties foresaw.[^19] As BellSouth correctly
    observes, far from having no reason to anticipate the Commission's
    remedy here, "anyone who read AT&T's complaint . . . was doubtless
    aware that AT&T was asking the Commission to find the TSP unlawful,"
    and that any such finding would likely trigger a substantial change
    in the status quo.[^20] Indeed, Sprint "needed only to read
    BellSouth's briefs to the Commission, in which BellSouth expressly
    argued that, if it were found liable, 'the *only* available remedy
    would be to eliminate the TSP . . . as written in \[its\]
    entirety.'"[^21] Thus, the record in this proceeding gave Sprint
    every reason to understand that one option available to the
    Commission in response to AT&T's complaint was to order the
    termination of the TSP.

7.  For the foregoing reasons, and consistent with substantial
    Commission precedent, we find that petitioner Sprint has failed to
    satisfy one of the two requirements set forth in section 1.106(b)(1)
    of our rules for a non-party to a complaint proceeding to seek
    reconsideration of the order resolving such proceeding.
    Consequently, we dismiss the Petition.

    IV\. ORDERING CLAUSE

8.  Accordingly, IT IS ORDERED, pursuant to sections 4(i), 4(j), 208,
    and 405 of the Communications Act of 1934, as amended, 47 U.S.C. §§
    154(i), 154(j), 208, and 405, and section 1.106(b)(1) of the
    Commission's rules, 47 C.F.R. § 1.106(b)(1), that the Petition for
    Reconsideration of Sprint Communications Co., L.P. IS DISMISSED.

    FEDERAL COMMUNICATIONS COMMISSION

    Marlene H. Dortch

    Secretary

[^1]: Petition for Reconsideration of Sprint Communications Co., L.P.,
    File No. EB-04-MD-010 (filed Jan. 10, 2005) ("Sprint Petition").

[^2]: *AT&T Corp. v. BellSouth Telecommunications, Inc*., Memorandum
    Opinion and Order, FCC 04-278, 2004 WL 2851490 (rel. Dec. 9, 2004)
    ("*AT&T/BellSouth Order*").

[^3]: 47 U.S.C. § 208.

[^4]: *See* 47 C.F.R. § 1.106(b)(1). *See also,* *Matter of Infinity
    Broadcasting Operations, Inc*., Memorandum Opinion and Order, 19 FCC
    Rcd 20156 (2004) ("*Infinity Broadcasting*"); *Texcom, Inc. d/b/a
    Answer Indiana v. Bell Atlantic Corp,* Order on Reconsideration, 17
    FCC Rcd 6275 (2002) ("*Answer Indiana*"); *AT&T Corp. v. Business
    Telecom, Inc*., Order on Reconsideration, 16 FCC Rcd 21750 (2001)
    ("*AT&T v. BTI*").

[^5]: 47 U.S.C. § 272. *See* *AT&T/BellSouth Order* at paras. 29-33,
    35-42.

[^6]: *Id.* at para. 53.

[^7]: Sprint Petition at 3.

[^8]: *Id.* at 4.

[^9]: Opposition of AT&T Corp. to Petition for Reconsideration of Sprint
    Communications Co., L.P., File No. EB-04-MD-010 (filed Jan. 18,
    2005) ("AT&T Opposition"); BellSouth Telecommunications, Inc.'s
    Opposition to Petition for Reconsideration of Sprint Communications
    Co., L.P., File No. EB-010-MD-04 (filed Jan. 18, 2005) ("BellSouth
    Opposition").

[^10]: 47 U.S.C. § 405(a).

[^11]: 47 C.F.R. § 1.106(b)(1) (emphasis added).

[^12]: *See, e.g., Infinity Broadcasting*; *Answer Indiana*; *AT&T v.
    BTI*; *TSR Wireless, LLC v. US West Communications, Inc.*, Order on
    Reconsideration, 16 FCC Rcd 11462 (2001); *Heritage Cablevision
    Associates of Dallas, L.P. v Texas Utilities Electric Co.*,
    Memorandum Opinion and Order, 7 FCC Rcd 4192, 4192 (1992)
    ("*Heritage v. Texas Utilities*"); *GTE Telenet Communications Corp.
    v. AT&T Co*., Memorandum Opinion and Order, 1 FCC Rcd 367, 367 (Com.
    Car. Bur. 1986) ("*GTE v. AT&T*").

[^13]: Sprint Petition at 3-4; Reply of Sprint Communications Co., L.P.
    to Comments on Petition for Reconsideration, File No. EB-04-MD-010
    (filed Jan. 24, 2005) ("Sprint Reply") at 2-3.

[^14]: Sprint Petition at 4; Sprint Reply at 2-3.

[^15]: For purposes of this Order only, we will assume, *arguendo*, that
    the *AT&T/BellSouth Order* "aggrieves" Sprint. We note, however,
    that Sprint's assertions of harm are vague, cursory, conclusory, and
    speculative. *See* Sprint Petition at 5-6. *See also* BellSouth
    Opposition at 2-3 (urging that Sprint's claimed injury, far from
    being set forth "with particularity," is purely speculative, based
    on a *possible* worsening of its position, *if* BellSouth fails to
    develop a successor special access volume discount plan, or *if*
    such plan provides a less desirable option than was available under
    the TSP -- none of which can be known for several months).

[^16]: *See generally, AT&T v BTI*, 16 FCC Rcd at 21754, n.21 (stating
    that, in a formal complaint proceeding, "\[w\]e will . . . consider
    on a case-by-case basis motions by non-parties wishing to submit
    amicus-type filings addressing the legal issues raised in this
    proceeding.") (quoting *Pleading Cycle Established for AT&T Corp. v.
    Ameritech Corp*., Public Notice, 13 FCC Rcd 12057, 12058 (Com. Car.
    Bur. 1998)).

[^17]: *See, e.g., Heritage v. Texas Utilities*, 7 FCC Rcd at 4192,
    paras. 6-7 (dismissing a non-party's petition for reconsideration of
    an order in an adjudicatory proceeding, where the non-party "failed
    to participate either as an intervenor or amicus," though it "could
    have moved the Commission for leave to participate, either as amicus
    or intervenor, \[even\] after the pleading cycle closed."). We do
    not imply that, had Sprint attempted to intervene as a party, it
    would necessarily have been successful. *See, e.g., AT&T v BTI*, 16
    FCC Rcd at 21754, n.21, citing *Teleconnect Co. v. The Bell Co. of
    Pennsylvania*, Memorandum Opinion and Order, 6 FCC Rcd 5202, 5206 at
    paras. 18-20 (Com. Car. Bur. 1991), *aff'd on review*, 10 FCC Rcd
    1626 (1995). Here, however, Sprint made no such effort.

[^18]: *See, e.g., GTE v. AT&T*, 1 FCC Rcd at 367, para. 6. *Cf.,
    Committee for Community Access v. FCC*, 737 F.2d 74, 84 (D.C. Cir.
    1984) ("If we were to require the Commission to accept surprise as a
    sufficient justification for a new party to seek reconsideration,
    the Commission's -- and indeed the public's -- interest in the
    finality of licensing decisions would be eviscerated.").

[^19]: *See, e.g.,* AT&T Supplemental Filing in Response to Commission
    Notice of Formal Complaint of AT&T, File No. EB-04-MD-010 (filed
    July 13, 2004) ("AT&T Supplement") at 4-10 (addressing termination
    as a possible outcome); Complainant AT&T's Reply to Defendant
    BellSouth's Answer, File No. EB-04-MD-010 (filed July 26, 2004)
    ("AT&T Reply") at 26-28 (describing breadth of Commission's
    authority to fashion a remedy); Complainant's Initial Brief, File.
    No. EB-04-MD-010 (filed Sept. 22, 2004) ("AT&T Initial Brief") at
    163-67 (same); Complainant's Reply Brief, File No. EB-04-MD-010
    (filed Oct. 4, 2004) ("AT&T Reply Brief") at 82 n.268 (discussing
    remedies, including striking of the "evergreen provision");
    BellSouth's Initial Brief, EB-04-MD-010 (filed Sept. 22, 2004)
    ("BellSouth Initial Brief") at 5 (stating that, "were the Commission
    to hold the discount plans unlawful, the *only* available remedy
    would be to eliminate the TSP and the PSIP as written in their
    entirety"), 6 (stating, "\[f\]or example, the Commission could
    strike the plans completely"), 8 (discussing the impact of
    terminating these discount plans).

[^20]: BellSouth Opposition at 3.

[^21]: *Id.* at 4, quoting BellSouth's Initial Brief at 5.