Before the 
                FEDERAL COMMUNICATIONS COMMISSION
                    Washington, D.C.   20554



In the Matter of                   )
                                   )
Tariff Filing Requirements for     )    CC Docket No. 92-13
Interstate Common Carriers         )



                      REPLY COMMENTS OF THE
   NATIONAL TELECOMMUNICATIONS AND INFORMATION ADMINISTRATION





Thomas J. Sugrue                   Phyllis E. Hartsock            
Acting Assistant Secretary for     Acting Chief Counsel
Communications and Information


William F. Maher
Associate Administrator
Carol E. Mattey
Joseph L. Gattuso
Office of Policy Analysis          
  and Development                  

                                   National Telecommunications
                                   and Information Administration







U.S. Department of Commerce
Room 4713
14th & Constitution Ave., N.W.
Washington, D.C.  20230
(202) 377-1816

April 29, 1992


                             SUMMARY

     NTIA has long supported the Commission's efforts to adjust
its regulatory oversight of common carriers to marketplace
realities and, in particular, to reduce regulatory burdens on
carriers as their market power with respect to the provision of
particular services is diminished.  Where effective competition
exists, removing unnecessary regulatory requirements can produce
significant consumer benefits.  In NTIA's view, the Commission's
decision ten years ago to relieve domestic nondominant carriers
of the burden of filing tariffs -- adopted as part of its
"permissive forbearance" policy -- has significantly enhanced the
ability of such carriers to respond rapidly to changing market
conditions and has enabled them to become vigorous competitors in
the interexchange service marketplace.  NTIA thus believes that
permissive forbearance has been a policy success that has enabled
the Commission to achieve more effectively the goals of the
Communications Act.  

     NTIA believes the Commission has ample legal authority to
continue to apply permissive forbearance to domestic nondominant
interexchange carriers.  While we are aware of arguments to the
contrary, we believe that permissive forbearance remains lawful,
taking into account recent judicial developments.  Moreover,
there is a strong argument that Congress was aware of, and 
acquiesced in, the Commission's forbearance policy when it passed
the Telephone Operator Consumer Services Improvement Act of 1990,
which gives additional support to the Commission's view that the
Communications Act permits the implementation of the forbearance
policy.  In the event that the Commission concludes otherwise,
however, it should consider some form of "maximum streamlined"
tariff requirements for nondominant interexchange carriers.


                        TABLE OF CONTENTS
                                                             Page

I.   INTRODUCTION                                               1

II.  NTIA BELIEVES THAT THE COMMISSION HAS THE LEGAL 
     AUTHORITY TO APPLY ITS PERMISSIVE FORBEARANCE POLICY
     TO NONDOMINANT DOMESTIC INTEREXCHANGE CARRIERS             6 
       
     A.   The Commission's Permissive Forbearance Policy is
          Consistent with Judicial Precedent                    8

     B.   Congressional Awareness of and Acquiescence in
          the Commission's Permissive Forbearance Policy
          Gives Additional Support to the Commission's
          Interpretation of the Communications Act             11

III. IF THE COMMISSION DECIDES NO LONGER TO APPLY ITS
     PERMISSIVE FORBEARANCE POLICY, IT SHOULD ADOPT SOME 
     FORM OF "MAXIMUM STREAMLINED" REGULATION FOR ALL
     NONDOMINANT DOMESTIC CARRIERS                             17
IV.  CONCLUSION                                                21


                           Before the 
                FEDERAL COMMUNICATIONS COMMISSION
                    Washington, D.C.   20554



In the Matter of                   )
                                   )
Tariff Filing Requirements for     )    CC Docket No. 92-13
Interstate Common Carriers         )
                              

                      REPLY COMMENTS OF THE
   NATIONAL TELECOMMUNICATIONS AND INFORMATION ADMINISTRATION

     The National Telecommunications and Information
Administration (NTIA), as the Executive Branch agency principally
responsible for the development and presentation of domestic and
international telecommunications and information policy,
respectfully submits the following Reply Comments in response to
the Commission's Notice of Proposed Rulemaking in the above-
captioned proceeding.[1]

I.   INTRODUCTION

     In this proceeding, the Commission is examining the
lawfulness of its longstanding policy of forbearing from
requiring nondominant domestic interexchange carriers to file
interstate tariffs -- one aspect of its "permissive forbearance"
policy -- that it adopted in the Competitive Carrier
proceeding.[2]  In Competitive Carrier, the Commission concluded
that the Communications Act of 1934 (the Act) provided it with
substantial discretion with respect to Title II of the Act,
including the discretion to refrain from applying the full
panoply of Title II regulation, so long as that discretion is
exercised in a manner that effectuates the Act's overarching
goals.[3]  

     Among other things, the Commission decided to forbear from
requiring certain "nondominant" domestic carriers[4] to file
tariffs under Section 203(a) of the Communications Act, which
provides:  

     Every common carrier . . . shall, within such
     reasonable time as the Commission shall designate, file
     with the Commission and print and keep open for public
     inspection schedules showing all charges for itself and
     its connecting carriers . . . and showing the
     classifications, practices, and regulations affecting
     such charges.[5]

In analyzing its legal authority to take such action, the
Commission relied in part on Section 203(b)(2) of the Act, which
provides:  

     The Commission may, in its discretion and for good
     cause shown, modify any requirement made by or under
     the authority of this section either in particular
     instances or by general order applicable to special
     circumstances or conditions . . . .[6] 

The Commission found that tariff filing requirements were
unnecessary for these nondominant carriers because they had
neither the ability nor the incentive to engage in the
anticompetitive practices prohibited under the Act.[7]  Moreover,
it found that requiring nondominant carriers to file tariffs
imposed significant costs by inhibiting price competition,
service innovation, and the ability of firms to respond quickly
to market trends.[8]  

     The Commission's recent decision to reexamine its permissive
forbearance policy was prompted, in part, by a complaint filed by
AT&T against MCI, which alleged that MCI is violating Section 203
of the Communications Act by providing service to customers at
rates and on terms and conditions not set forth in interstate
tariffs.[9]  The FCC's decision to initiate a rulemaking was also
prompted by a recent Supreme Court case, Maislin Industries,
U.S., Inc. v. Primary Steel, 110 S. Ct. 2759, 111 L. Ed. 2d 94
(1990) (Maislin), which held that the Interstate Commerce
Commission's (ICC's) policy of allowing shippers privately to
negotiate rates different from filed tariffs was unlawful.  

     NTIA has long supported the Commission's efforts to adjust
its regulatory oversight of common carriers to marketplace
realities and, in particular, to reduce regulatory burdens on
carriers as their market power with respect to the provision of
particular services is diminished.[10]  Where effective
competition exists, removing unnecessary regulatory requirements
can produce significant consumer benefits.  For example, in
NTIA's view, the Commission's decision in Competitive Carrier to
relieve nondominant carriers of the burden of filing tariffs has
significantly enhanced their ability to respond rapidly to
changing market conditions and enabled them to be vigorous
competitors in the interexchange service marketplace.[11]

     NTIA believes that permissive forbearance has been a
successful policy that has enabled the Commission to achieve more
effectively the goals of the Communications Act.  We believe the
Act provides the Commission with the flexibility to apply its
tariff filing requirements in ways that further, rather than
impede, realization of those goals.  In particular, we believe
the Commission has ample legal authority to continue to apply
permissive forbearance to nondominant interexchange carriers. 
While we realize that arguments to the contrary have been made,
we believe that permissive forbearance remains lawful, even
taking into account recent judicial developments.  Moreover,
there is a strong argument that Congress was aware of, and has
acquiesced in, the Commission's policy when it passed the
Telephone Operator Consumer Services Improvement Act of 1990 (OSP
Act),[12] adding further support to the Commission's
interpretation that the Communications Act allows implementation
of permissive forbearance.  In the event that the Commission
concludes otherwise, however, we urge it to consider some form of
"maximum streamlined" tariff requirements for nondominant
interexchange carriers.

II.  NTIA BELIEVES THAT THE COMMISSION HAS THE LEGAL AUTHORITY TO
     APPLY ITS PERMISSIVE FORBEARANCE POLICY TO NONDOMINANT
     DOMESTIC INTEREXCHANGE CARRIERS                             

     AT&T and several other parties in this proceeding argue that
the Commission's permissive forbearance policy is unlawful,
relying primarily on two court cases:  Maislin and MCI
Telecommunications Corp. v. FCC, 765 F.2d 1186 (D.C. Cir. 1985)
(MCI).  AT&T argues that those cases establish that under Section
203(a) of the Communications Act, all common carriers must file
tariffs, and the Commission has no authority to adopt a policy
that eliminates this requirement for any carrier.[13]  

     We do not believe that the issue is as straightforward as
AT&T contends.  While the question is not free from controversy,
we believe that the Commission has the legal authority to
continue to apply permissive forbearance to nondominant domestic
interexchange carriers.  As numerous parties argue in their
initial comments in this proceeding,[14] the cases relied on by
AT&T are distinguishable from the situation before the Commission
and do not compel a finding that permissive forbearance is
unlawful.  Moreover, we believe that congressional awareness of,
and acquiescence in, the Commission's permissive forbearance
policy through passage of the OSP Act gives additional support to
the Commission's view that it has the authority under the
Communications Act to forbear from requiring nondominant carriers
to file tariffs.[15]

     A.   The Commission's Permissive Forbearance Policy is
          Consistent with Judicial Precedent               

     As numerous parties argue in their opening comments,[16] in
Maislin, the Supreme Court reaffirmed what is known as the "filed
rate doctrine" of the Interstate Commerce Act (ICA).  At issue in
that case was the validity of the ICC's "Negotiated Rates" policy
under which it allowed shippers to raise as a defense (in a suit
to collect a filed rate) the existence of a privately negotiated
rate between the carrier and the shipper.  The ICA expressly
requires a carrier under the ICC's jurisdiction to provide
transportation or services pursuant to a rate contained in a
tariff,[17] and it expressly prohibits a carrier from charging a
rate different from that tariffed rate.[18]  The Supreme Court
concluded that the purpose of these statutory requirements is to
forbid carriers from engaging in price discrimination by secretly
negotiating a rate different from a tariffed rate.  Accordingly,
the Court held that the ICC's "Negotiated Rates" policy was
inconsistent with the filed rate doctrine embodied in the ICA.

     Contrary to AT&T's implication,[19] Maislin did not rule on
the question of whether all common carriers must file tariffs for
services in every instance.[20]  Moreover, we do not agree with
AT&T that Maislin "conclusively establishes" that the Commission
lacks the authority under the Communications Act to exempt common
carriers from the tariff filing requirement of Section
203(a).[21]  AT&T ignores altogether the existence of Section
203(b)(2) of the Communications Act.  Although the ICA contains
an analogous provision, 49 U.S.C.  10762(d)(1),[22] the ICC had
not relied upon that provision in adopting its "Negotiated Rates"
policy, and that provision was not at issue and not even
referenced in Maislin.   

     Nor are we convinced by AT&T's argument that the
Commission's policy of permissive forbearance is unlawful under
MCI.  As the MCI court expressly noted, that decision did not
reach the question whether permissive forbearance was valid.[23] 
Rather, the issue in that case was whether the FCC had the
statutory authority under Section 203(b)(2) of the Communications
Act to prohibit carriers subject to forbearance from filing
tariffs.[24]   

     B.   Congressional Awareness of and Acquiescence in the
          Commission's Permissive Forbearance Policy Gives
          Additional Support to the Commission's Interpretation
          of the Communications Act                            

     NTIA agrees with the view expressed by many commenters[25]
that Congress is aware of the Commission's forbearance policy and
acquiesced in that policy when it passed the OSP Act.[26]  While
not dispositive, such congressional awareness and acquiescence
under these circumstances provides additional support[27] for the
Commission's conclusion that permissive forbearance is consistent
with Section 203 of the Communications Act.[28]

     Several commenters observe that Congress, particularly
through its communications oversight committees, has long been
cognizant of the Competitive Carrier proceeding and the
Commission's determination to forego rate regulation of
nondominant domestic carriers, as evidenced in various
congressional reports and hearing records.  In fact, as MCI
notes,[29] as early as January, 1980, two years before the
Commission adopted the forbearance policy, NTIA submitted
comments to the House Committee on Interstate and Foreign
Commerce describing the benefits of regulatory forbearance.[30]

     More importantly, congressional acquiescence in the
Commission's regulatory scheme, when it passed the OSP Act in
1990, provides additional support for the validity of permissive
forbearance.  In that Act, Congress addressed issues involving a
particular class of nondominant common carriers, called "Operator
Service Providers" (OSPs),[31] that had been the subject of
complaints by consumers to the FCC and Congress.  The Senate
Committee on Commerce, Science, and Transportation specifically
acknowledged in its report on the bill that the Commission
treated OSPs as nondominant carriers for which the Commission
forbears from full Title II rate regulation.[32]  Similarly, the
House Committee on Energy and Commerce noted in its report that
the Commission did not apply rate regulation to OSPs because it
classified them as nondominant carriers.[33]  Although in passing
the OSP Act Congress clearly meant to impose additional
regulation on these providers, some commenters observe that in
several congressional references to the Commission's general
permissive forbearance policy in the OSP Act's legislative
history, there is "not a hint of disapproval," nor a "raised 
. . . legislative eyebrow."[34] 

     The OSP Act, among other things, requires OSPs to file
limited informational tariffs with the Commission.[35]  In
enacting this requirement, Congress clearly recognized that it
was increasing regulation for OSPs.[36]  However, the
informational tariff requirement in the OSP Act does not alter
the status of OSPs as nondominant carriers.  Congress did not
seek to impose, or direct the Commission to impose, the full
panoply of Title II tariff regulations on OSPs or any other
common carrier.[37]  Thus, a strong argument exists that Congress
intended to preserve the prevailing state of the Commission's
regulation of nondominant carriers, including its application of
forbearance, except for the filing by OSPs of these informational
tariffs.[38]  Indeed, the care that Congress exercised in not
extending heavier tariff regulation to OSPs can be considered an
acknowledgment of the benefits of the Commission's tariffing
practices, including its forbearance policy, that lessen
regulatory burdens imposed on carriers.  The OSP Act expressly
states that it is not to be "construed to alter the obligations,
powers, or duties of common carriers or the Commission under the
sections of this Act."[39]

     Of the many parties commenting on the implications of the
OSP Act, only one disputes the significance of its passage. 
Mobile Marine Radio asserts that because the OSP Act did not
reenact Section 203 of the Communications Act, but instead
established a specialized statutory scheme for OSPs, Congress did
not acknowledge the Commission's interpretation of its authority
under Section 203.[40]  Although codification of that section or
the permissive forbearance doctrine itself would, of course, be
the ultimate congressional endorsement of this practice, we
believe that the measured regulatory steps taken in the OSP Act
demonstrate congressional sensitivity to the benefits of the
Commission's application of permissive forbearance.

     For these reasons, NTIA concludes that Congress was aware of
the Commission's permissive forbearance policy and acquiesced to
it through enactment of the OSP Act, thus providing further
support for the Commission's view that permissive forbearance is
consistent with the Communications Act.

III. IF THE COMMISSION DECIDES NO LONGER TO APPLY ITS PERMISSIVE
     FORBEARANCE POLICY, IT SHOULD ADOPT SOME FORM OF "MAXIMUM
     STREAMLINED" REGULATION FOR ALL NONDOMINANT DOMESTIC
     CARRIERS                                                   

     The Commission recognizes in its Notice that its permissive
forbearance policy has been the cornerstone of its regulatory
policy towards nondominant domestic interexchange carriers for
the last decade.[41]  Given this longstanding history -- and the
success of this policy in reducing regulatory burdens and
promoting competition in the interexchange marketplace -- the
Commission should reverse course now only if it is convinced that
there is no legal basis for continuing the policy.[42]  As
discussed in the previous section, we believe the Commission
should conclude that permissive forbearance is lawful.  If the
Commission concludes otherwise, however, it should adopt new
tariffing policies that would impose minimal regulatory burdens
on the carriers now subject to permissive forbearance.

     Several commenters urge the Commission to streamline its
tariff requirements for nondominant interexchange carriers in the
event it concludes it no longer may apply permissive forbearance
to such carriers.  For instance, Comptel proposes that current
tariff filing requirements be streamlined for nondominant
carriers so that (1) no cost support is required; (2) tariffs are
presumed lawful; (3) tariffs may take effect on one-day notice;
(4) filing fees are reduced; (5) carriers are allowed to file
banded/flexible rates; and (6) for rate revisions falling with
such banded rates, carriers need only file tariff changes on an
annual basis.[43]

     NTIA believes that these proposals have merit and should be
seriously considered by the Commission.  Because Section 203(a)
of the Communications Act merely provides that carriers file
tariffs, the Commission has broad discretion to adopt specific
rules and policies governing the nature and content of such
filings.  As MFS argues,[44] many of the current Part 61 tariff
filing requirements were designed for dominant carriers and are
neither mandated by statute, nor necessary to regulate
nondominant carriers.  As such, we believe that streamlined
tariff requirements such as those proposed by Comptel are well
within the Commission's legal authority to adopt.[45]  Moreover,
such action would best effectuate the policy goals that underlay
the Competitive Carrier proceeding and that remain valid today.

     Finally, we strongly disagree with MCI's contention that if
tariff requirements are reimposed on nondominant carriers, AT&T
should be reregulated to the level it was regulated before the
Commission's decision in CC Docket No. 90-132[46] in order to
preserve a regulatory distinction between dominant and
nondominant carriers.[47]  The basic premise of Interexchange
Competition was that because there is robust competition in the
business services segment of the interexchange marketplace,
lessened regulation of AT&T is appropriate with respect to those
services.  The reimposition of some tariff filing requirements on
nondominant carriers has no bearing on that fundamental
conclusion.[48]

IV.  CONCLUSION
     For the foregoing reasons, NTIA respectfully urges the
Commission to continue to apply its permissive forbearance policy
to nondominant domestic carriers in the interexchange
marketplace.  In the alternative, NTIA requests that the
Commission consider adopting some form of "maximum streamlined"
regulation for nondominant domestic carriers.

     Respectfully submitted,

Thomas J. Sugrue                                              
Acting Assistant Secretary for     Phyllis E. Hartsock           
  Communications and Information   Acting Chief Counsel
  

William F. Maher
Associate Administrator
Carol E. Mattey
Joseph L. Gattuso
Office of Policy Analysis 
  and Development


                                   National Telecommunications
                                   and Information Administration



U.S. Department of Commerce
Room 4713
14th & Constitution Ave., N.W.
Washington, D.C.  20230
(202) 377-1816

April 29, 1992                                          

-----------------------------------------------------------------------------

                          ENDNOTES

[1]  Notice of Proposed Rulemaking, 7 FCC Rcd 804 (1992)
     (hereinafter Notice).  

[2]  Policy and Rules Concerning Rates for Competitive Common
     Carrier Services and Facilities Authorizations Therefor,
     First Report and Order, 85 FCC 2d 1 (1980); Second Report
     and Order, 91 FCC 2d 59 (1982), recon. denied, 93 FCC 2d 54
     (1983); Third Report and Order, 48 Fed. Reg. 46,791 (1983);
     Fourth Report and Order, 95 FCC 2d 554 (1983); Fifth Report
     and Order, 98 FCC 2d 1191 (1984); Sixth Report and Order, 99
     FCC 2d 1020, rev'd and remanded sub nom., MCI
     Telecommunications Corp. v. FCC, 765 F.2d 1186 (D.C. Cir.
     1985).

[3]  Further Notice of Proposed Rulemaking, 84 FCC 2d 445, 478-91
     (1981); Second Report and Order, 91 FCC 2d at 65-66.  

[4]  The Commission defined "nondominant" carriers as those
     lacking market power (i.e., the ability to control prices in
     the marketplace).  First Report and Order, 85 FCC 2d at 10.

[5]  47 U.S.C.  203(a).

[6]  47 U.S.C.  203(b)(2).  See Further Notice of Proposed
     Rulemaking, 84 FCC 2d at 479-81.  The Commission also relied
     on Section 203(c) of the Act, 47 U.S.C.  203(c), which
     provides that no carrier shall offer service unless
     schedules have been filed, "unless otherwise provided by or
     under authority of this Act."  The Commission concluded from
     this provision that although the statute generally provides
     for the filing of tariffs and for carriers to provide
     service in accordance with those filings, it also provides
     the agency with authority to exempt carriers from those
     requirements.  Id. at 481. In its ordering clause, the
     Commission also cited Section 4(i) of the Communications
     Act, 47 U.S.C.  154(i), which provides: "The Commission may
     perform any and all acts, make such rules and regulations,
     and issue such orders, not inconsistent with this Act, as
     may be necessary in the execution of its functions."  Second
     Report and Order, 91 FCC 2d at 73.

[7]  Second Report and Order, 91 FCC 2d at 69; see also First
     Report and Order, 85 FCC 2d at 20-21 ("[A] firm without
     market power does not have the ability or incentive to price
     its services unreasonably [or] to discriminate among
     customers unjustly").

[8]  Second Report and Order, 91 FCC 2d at 65.

[9]  In a separate order, the FCC dismissed AT&T's complaint for
     injunctive relief on the ground that reconsideration of such
     a fundamental policy should not occur in an adjudicatory
     proceeding.  AT&T Communications v. MCI Telecommunications
     Corp., 7 FCC Rcd 807 (1992), appeal docketed, No. 92-1053
     (D.C. Cir. Feb. 7, 1992).

[10] See, e.g., Reply Comments of the National Telecommunications
     and Information Administration (filed Sept. 18, 1990) in
     Competition in the Interexchange Marketplace, CC Docket No.
     90-132 (NTIA Interexchange Competition Reply Comments).  See
     also Views of the National Telecommunications and
     Information Administration on H.R. 6121, reprinted in H.R.
     Rep. No. 1252, 96th Cong., 2d Sess., pt. 1, at 132 (1980)
     (NTIA Views) (NTIA supported regulatory forbearance,
     suggesting that the FCC had "sufficient flexibility under
     the 1934 Act to adapt its regulations and policies to
     today's realities . . . ," but recognized that a
     "substantial legal issue" existed at the time over whether
     the FCC could forbear from regulation).

[11] The benefits of the Commission's permissive forbearance
     policy have been described by a number of commenters in this
     proceeding.  See, e.g., Comments of Ad Hoc Telecommunica-
     tions Users Committee at 3-4 (filed Mar. 30, 1992) (Ad Hoc
     Users Comments); Comments of the Competitive
     Telecommunications Association at 5-6 (filed Mar. 30, 1992)
     (Comptel Comments).

[12] Telephone Operator Consumer Services Improvement Act of
     1990, Pub. L. No. 101-435, 104 Stat. 987 (1990), codified at
     47 U.S.C.  226.

[13] Comments of American Telephone and Telegraph Company at 2,
     4-7 (filed Mar. 30, 1992) (AT&T Comments).

[14] See, e.g., Ad Hoc Users Comments at 7-10; Joint Comments of
     Automated Communications, Inc., Business Telecom, Inc., and
     U.S. Long Distance, Inc. at 8-9 (filed Mar. 30, 1992) (ACI
     and BTI Joint Comments); Comptel Comments at 14-19; Comments
     of First Financial Management Corporation at 13-14 (filed
     Mar. 30, 1992) (First Financial Management Comments);
     Comments of GTE Service Corporation at 12-14, 19-23 (filed
     Mar. 30, 1992) (GTE Comments); Comments of MCI
     Telecommunications Corporation at 13-21 (filed Mar. 30,
     1992) (MCI Comments); Comments of Sprint Communications
     Company L.P. at 6-11 (filed Mar. 30, 1992) (Sprint
     Comments).

[15] See Ad Hoc Users Comments at 10-13; ATI and BTI Joint
     Comments at 6-8; Comments of Commonwealth Long Distance
     Company at 4-5 (filed Mar. 30, 1992); Comptel Comments at 9-
     14; Comments of Cellular Telecommunications Industry
     Association at 14-17 (filed Mar. 30, 1992) (CTIA Comments);
     First Financial Comments at 8-12; GTE Comments at 23-24;
     Comments of International Business Machines Corporation at
     2-6 (filed Mar. 30, 1992) (IBM Comments); MCI Comments at
     23-45; Comments of Metropolitan Fiber Systems at 7-11 (filed
     Mar. 30, 1992) (MFS Comments); Comments of OCOM Corporation
     at 4-7 (filed Mar. 30, 1992) (OCOM Comments); Sprint
     Comments at 11-14; Comments of Williams Communications
     Group, Inc. at 2-9 (filed Mar. 30, 1992) (WilTel Comments).

[16] See, e.g., Sprint Comments at 6; CTIA Comments at 19-20; Ad
     Hoc Users Comments at 8-10.

[17] 49 U.S.C.  10761(a).

[18] Id.

[19] AT&T Comments at 6.

[20] We recognize that there is language in the Maislin opinion
     to the effect that, pursuant to Section 10762 of the ICA,
     motor common carriers are required to file tariffs
     specifying their rates and may only charge those tariffed
     rates under Section 10761.  111 L. Ed. 2d at 108.  However, 
     the question of whether motor common carriers are always
     required to file tariffs was not presented to the Court, and
     thus the language is dictum.  No court since Maislin has
     suggested that case stands for the proposition that all such
     carriers must file tariffs.

[21] AT&T Comments at 6.

[22] Section 10762(d)(1) provides: "The Commission may reduce the
     notice period of subsections (a) and (c) of this section if
     cause exists.  The Commission may change other requirements
     of this section if cause exists in particular instances or
     as they apply to special circumstances."

[23] 765 F.2d at 1196.

[24] We recognize that, in concluding that mandatory forbearance
     was invalid, the MCI court stated that Section 203(b)(2)
     gave the Commission the authority to impose "circumscribed
     alterations," but not a "wholesale abandonment or
     elimination" of tariff filing requirements.  765 F.2d at
     1192.  As noted above, the MCI court was discussing
     mandatory, not permissive, forbearance.  Moreover, the
     precedents relied on by the MCI court in reaching that
     conclusion are inconclusive on the question of whether
     permissive forbearance is lawful.  For example, the issue in
     AT&T v. FCC, 572 F.2d 17 (2d Cir. 1978), was whether the FCC
     had properly concluded that resellers were common carriers
     subject to regulation under the Act.  The court recited the
     various requirements of Title II, including the requirement
     of Section 203 that carriers file tariffs, and then
     concluded that it was "aware of no authority for the
     proposition that the FCC may abdicate its responsibility to
     perform these duties and ensure that these statutory
     standards are met."  Such language should not be viewed as
     dispositive of whether permissive forbearance is lawful
     under Section 203(b)(2); the decision did not purport to
     construe the scope of the Commission's authority under that
     provision.  Moreover, permissive forbearance does not equal
     an abdication of such responsibilities.

     In AT&T v. FCC, 487 F.2d 865 (2d Cir. l973) -- which
     overturned an early Commission requirement that AT&T obtain
     special permission before filing new tariffs for services
     that were the subject of a pending rate investigation -- the
     court did specifically construe the scope of the
     Commission's authority under Section 203(b)(2).  There is
     language in that opinion to the effect that "under Section
     203(b) the Commission may only modify requirements as to the
     form of, and information contained in, tariffs and the
     thirty day notice provision."  487 F.2d at 879.  However, we
     agree with MCI that this dictum should not be viewed as an
     exhaustive delineation of the Commission's authority under
     Section 203(b)(2).  See MCI Comments at 16-17.  Rather, the
     central holding of that case was that the Commission's
     special permission requirement was unlawful because it would
     in essence enable the Commission to suspend AT&T's rates
     beyond the three months then provided for in Section 204 of
     the Act.  This distinction is critical, for Section 203(b)
     gives the Commission the authority to "modify any
     requirement made by or under the authority of this section"
     (emphasis added).  In other words, the Commission has the
     authority under Section 203(b) to waive the requirement of
     Section 203(a) that carriers file tariffs; it does not have
     the authority to impose a requirement under Section 203(b)
     that directly circumvents another statutory section.

[25] See comments cited supra note 15.

[26] See supra note 12.

[27] When an administrative interpretation has been brought to
     the attention of Congress, and Congress has failed to alter
     that construction when it has amended the statute in other
     respects, that administrative interpretation has been deemed
     consistent with the statutory intent.  See, e.g., United
     States v. Rutherford, 442 U.S. 544, 554 n.10 (1979)
     (congressional inaction regarding a specific interpretation
     of the Federal Food, Drug, and Cosmetic Act by the Food and
     Drug Administration (FDA) was held by the Supreme Court to
     be one reason to defer to the FDA's statutory
     interpretation); Kay v. FCC, 443 F.2d 638, 646-47 (D.C. Cir.
     1970) (court affirmed FCC interpretation of Section 315(a)
     of the Act); see generally Sutherland Stat. Const.  49.10
     (5th ed. 1992).

[28] Indeed, the Supreme Court recognized this principle in a
     case involving factual circumstances analogous to the
     instant case.  As WilTel notes in its initial comments, in
     Bob Jones University v. United States, 461 U.S. 574 (1983),
     the Supreme Court considered the following in concluding
     that Congress had ratified a position taken by the Internal
     Revenue Service:  Congress was aware of the IRS position for
     twelve years, it did not modify that position even while
     enacting related legislation, and in the related
     legislation, Congress "affirmatively manifested" its
     acquiescence in the IRS policy.  WilTel states that in the
     present case, the FCC policy has been in existence since
     1982, Congress has amended the Communications Act but left
     the forbearance policy in place, and the enactment of
     related legislation, the OSP Act, affirmatively demonstrates
     congressional acquiescence in the policy.  See WilTel
     Comments at 3.

     A number of lower courts, relying on Bob Jones, have looked
     at similar factors in concluding that Congress has approved
     of or acquiesced in an agency's policy under a particular
     statute.  See, e.g., West Michigan Broadcasting Co. v. FCC,
     735 F.2d 601, 612-13 (D.C. Cir. 1984) (congressional
     approval of the FCC's policy of granting minority
     preferences in comparative broadcast proceedings was
     demonstrated when Congress enacted related legislation, the
     1982 amendment to the Communications Act, that enabled the
     FCC to use lotteries to award licenses, but required that
     minority preferences be incorporated in such lotteries);
     Coalition to Preserve the Integrity of American Trademarks
     v. United States, 598 F. Supp. 844, 852 (D.D.C. 1984) (when
     Congress specifically noted the Customs Service policy of
     permitting importation of "grey market" goods and chose not
     to change that policy when enacting legislation that amended
     other parts of the relevant statute, Congress was deemed to
     have approved the policy as consistent with the statute).

[29] MCI Comments at 26.

[30] See NTIA Views, supra note 10.  In its comments, MCI
     outlines numerous other instances in which the Commission's
     forbearance rule has been brought to the attention of
     Congress.  For example, MCI discusses testimony of FCC
     Chairman Mark Fowler before the Senate Committee on
     Commerce, Science, and Transportation in 1983, 1985 and 1986
     (see MCI Comments at 28-29, 31-32); testimony of FCC
     Commissioner James H. Quello at the same 1985 hearing (see
     id. at 32); letter from FCC Chairman Dennis Patrick
     responding to questions posed by Rep. John Dingell, Chairman
     of the House Committee of Energy and Commerce, in 1988 (see
     id. at 33-34); and testimony by AT&T management in 1985 and
     1987 (see id. at 33).

[31] OSPs, as defined in the OSP Act, are common carriers that
     provide any interstate telecommunications service from an
     "aggregator" location that includes assistance to a consumer
     to arrange for billing or completion of an interstate call. 
     47 U.S.C.  226(a)(7), (9).

[32] See S. Rep. No. 439, 101st Cong., 2d Sess. 3 n.10, reprinted
     in 1990 U.S. Code Cong. & Admin. News 1577 (Senate Report).

[33] H.R. Rep. No. 213, 101st Cong., 1st Sess. 3 (1989) (House
     Report).  Several commenters noted that the Senate and House
     reports discussed the Commission's forbearance policy.  See,
     e.g., MCI Comments at 34-35; see also Ad Hoc Users Comments
     at 11; First Financial Comments at 11; OCOM Comments at 6;
     WilTel Comments at 3-4. 

[34] IBM Comments at 6; Ad Hoc Users Comments at 11.  See also
     OCOM Comments at 6.

[35] 47 U.S.C.  226(h)(1) provides in relevant part:

          Each provider of operator services shall file
          . . . an informational tariff specifying
          rates, terms, and conditions, including
          commissions, surcharges, any fees which are
          collected from consumers, and reasonable
          estimates of the amount of traffic priced at
          each rate, with respect to calls for which
          operator services are provided.  

[36] As Sprint notes, one Senate report stated:

          This legislation requires all operator
          services companies to file "informational
          tariffs" with the FCC.  The informational
          tariffs are necessary to allow the FCC to
          monitor the rates of OSPs and to determine
          whether competition in this market is
          benefiting the consumer.  While this will
          increase the paperwork burdens faced by these
          companies and the FCC, these informational
          tariffs are not expected to contain the same
          detailed cost justification material that
          typically accompanies the tariffs filed by
          dominant carriers. 

     Senate Report, supra note 32, at 9, cited in Sprint Comments
     at 12 n.9.

[37] See Senate Report, supra note 32, at 23; House Report, 
     supra note 33, at 14.

[38] The Commission may waive the filing requirement as early as
     1994 (four years after passage of the OSP Act) if it finds
     that certain regulatory objectives have been met.  See 47
     U.S.C.  226(h)(1)(B).

[39] 47 U.S.C.  226(i).

[40] See Comments of Mobile Marine Radio, Inc. at 7-8 (filed Mar.
     30, 1992).  Mobile Marine Radio relies on Merrill Lynch,
     Pierce, Fenner & Smith v. Curran, 456 U.S. 353, 382 n.66
     (1982), for the proposition that "when Congress reenacts,
     without change, statutory terms that have been given a
     consistent judicial or administrative interpretation,
     Congress has expressed an intention to adopt that
     interpretation."  

     Mobile Marine Radio interprets Merrill Lynch too narrowly. 
     In that case, Congress had reenacted provisions of the
     Commodity Exchange Act (CEA), 7 U.S.C.  6b, and the
     question before the Court was whether that reenactment
     carried forward a prior interpretation that an implied
     private cause of action for damages exists under the CEA. 
     In ruling that such a cause of action exists, the Court did
     not establish a requirement that Congress must perform such
     a reenactment for it to have acquiesced in a related agency
     policy.  Indeed, the Court noted that "'[i]t is always
     appropriate to assume that our elected representatives, like
     other citizens, know the law.'"  Id. at 379 (citing Cannon
     v. University of Chicago, 441 U.S. 677, 696, 697 (1979)).

[41] 7 FCC Rcd at 804, para. 2.

[42] See US Sprint Comments at 19; see also Comptel Comments at
     5-9; OCOM Comments at 8.

[43] Comptel Comments at 23-24.  See also MFS Comments at 17-18
     ("substantially relax" current tariff requirements); ACI and
     BTI Joint Comments at 8-9 (endorses "maximum streamlining");
     First Financial Comments at 13-14.

[44] MFS Comments at 17.

[45] See MCI, 765 F.2d at 1196 (while the FCC could not require
     carriers not to file tariffs, it could further streamline
     its regulation of nondominant carriers without violating any
     congressional prescription); AT&T, 487 F.2d at 879 (FCC has
     authority under Section 203(b) to modify tariff notice
     period); see also Southern Motor Carriers Rate Conference v.
     United States, 773 F.2d 1561 (11th Cir. 1985) (upholding
     ICC's authority under provision analogous to Section
     203(b)(2) of the Communications Act to allow carriers to
     decrease their rates upon filing tariffs with one-day notice
     and to increase their rates upon filing tariffs with seven-
     day notice).

[46] Competition in the Interexchange Marketplace, 6 FCC Rcd 5880
     (1991) (Interexchange Competition).

[47] MCI Comments at 54.

[48] NTIA supported the Commission in its decision to lessen
     regulation of AT&T's business services.  See NTIA
     Interexchange Competition Reply Comments, supra note 10, at
     14-15.