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 Federal  Communications  Commission  DA  00-  1917 
 Before  the 
 Federal  Communications  Commission 
 Washington,  D.  C.  20554 


 ) 
 In  the  Matter  of  ) 
 ) 
 Bell  At  lant  ic  ) 
 Petition  for  Limited  Modification  of  LATA  ) 
 Boundary  to  Provide  Expanded  Local  )  File  No.  NSD-  L-  99-  84 
 Calling  Service  (ELCS)  ) 


 MEMORANDUM  OPINION  AND  ORDER 
 Adopted:  August  29,  2000  Released:  August  31,  2000 
 By  the  Chief,  Network  Services  Division: 
 I.  INTRODUCTION 
 1.  On  October  25,  1999,  Bell  Atlantic-  Pennsylvania  (Bell  Atlantic-  PA),  pursuant  to 
 Section  3(  25)  of  the  Communications  Act  of  1934,  as  amended,  1  filed  a  petition  requesting  that  the 
 Commission  exercise  its  authority  to  modify  local  access  and  transport  area  (LATA)  boundaries  to 
 permit  Bell  At  lant  ic-  PA  to  carry  traffic  originat  ing  wit  h  Front  ier  Communicat  ions  (Front  ier)  across 
 LATA  boundaries  and  terminat  e  it  in  Bell  At  lant  ic-  PA  exchanges.  2  If  this  request  is  approved, 
 Front  ier  cust  omers  will  have  one-  way,  flat  -rat  ed  expanded  local  calling  service  (ELCS).  3  The  petition 
 was  placed  on  public  notice,  4  and  one  comment  was  filed.  5  No  reply  comment  s  were  filed. 
 For  the  reasons  stated  below,  we  grant  Bell  Atlantics  request. 


 1  See  47  U.  S.  C.    153(  25). 


 2  The  Frontier  exchanges    Genessee,  Shinglehouse,  Millport    are  located  in  Pennsylvania  but  are  part  of 
 the  Buffalo,  NY  LATA.  The  Bell  Atlantic  exchanges    Coudersport  and  Ulysses    are  located  in  the  Altoona,  PA 
 LATA.  The  local  calling  area  for  Shinglehouse  and  Millport  would  be  extended  to  the  Coudersport  exchange;  and 
 the  local  calling  area  for  Genessee  would  be  exteneded  to  Coudersport  and  Ulysses. 


 3  Section  3(  25)  of  the  Act  defines  LATAs  as  those  areas  established  prior  to  enactment  of  the  1996  Act  by  a 
 Bell  Operating  Company  (BOC)  such  that  no  exchange  area  includes  points  within  more  than  one  metropolitan 
 statistical  area,  consolidated  metropolitan  statistical  area,  or  State,  except  as  expressly  permitted  under  the  AT&  T 
 Consent  Decree;  or  established  or  modified  by  a  BOC  after  such  date  of  enactment  and  approved  by  the 
 Commission.  As  a  non-  BOC,  Frontier  does  not  need  Commission  approval  to  transport  calls  across  a  LATA. 


 4  See  Comment  Sought  on  Bell  Atlantic-  Pennsylvanias  Request  For  Limited  Modification  of  LATA 
 Boundaries  to  Provide  Expanded  Local  Calling  Service  Between  Bell  Atlantic-  Pennsylvanias  Ulysses  and 
 Coudersport  exchanges  and  Frontier  Communications  Genesee,  Shinglehouse,  and  Milport  exchanges  in 
 Pennsylvania,  Public  Notice,  rel.  November  4,  1999;  Clarification  on  Bell  Atlantic-  Pennsylvanias  Request  for 
 Limited  Modification  of  LATA  Boundaries  to  Provide  Expanded  Local  Calling  Service,  Public  Notice,  rel.  March 
 20,  2000. 


 5  Karen  E.  Tucker  filed  a  comment  in  support  of  the  petition. 
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 II.  BACKGROUND 
 2.  Requests  for  new  ELCS  routes  are  generally  initiated  by  local  subscribers.  IntraLATA 
 ELCS  routes  can  be  ordered  by  the  state  commission.  6  For  interLATA  routes,  prior  to 
 the  Telecommunications  Act  of  1996  (1996  Act),  7  the  Bell  Operat  ing  Companies  (BOCs)  were 
 required  to  secure  state  approval  and  then  obtain  a  waiver  from  the  United  States  District  Court  for  the 
 Dist  rict  of  Columbia  (Dist  rict  Court  ).  8  In  the  years  between  the  Consent  Decree  9  and  the  1996  Act, 
 the  District  Court  received  more  than  a  hundred  requests  for  Consent  Decree  waivers  to  permit  new 
 interLATA  ELCS  routes.  10  Because  of  the  large  number  of  requests  involved  and  because  most  of  the 
 requests  were  non-  controversial,  the  District  Court  developed  a  streamlined  process  for  handling  such 
 requests.  11 


 3.  Under  the  st  reamlined  process  developed  by  the  Dist  rict  Court  ,  the  BOC  submitt  ed  it  s 
 waiver  request  to  the  Department  of  Justice  (Department).  The  Department  reviewed  the  request  and 
 then  submitted  the  request,  along  with  the  Department's  recommendation,  to  the  District  Court.  In 
 evaluating  ELCS  requests,  the  Department  and  the  District  Court  considered  the  number  of  customers 
 or  access  lines  involved  12  as  well  as  whether  a  sufficiently  strong  community  of  interest  between  the 
 exchanges  justified  granting  a  waiver  of  the  Consent  Decree.  13  A  communit  y  of  int  erest  could  be 
 demonstrated  by  such  evidence  as:  (1)  poll  results  showing  that  customers  in  the  affected  exchange 
 were  willing  t  o  pay  higher  rat  es  to  be  included  in  an  expanded  local  calling  area;  14  (2)  usage  data 
 demonst  rat  ing  a  high  level  of  calling  bet  ween  the  exchanges;  and  (3)  narrat  ive 


 6  United  States  v.  Western  Electric  Company,  Inc.,  569  F.  Supp.  990,  995  (D.  D.  C.  1983).  "The  distance  at 
 which  a  local  call  becomes  a  long  distance  toll  call  has  been,  and  will  continue  to  be,  determined  exclusively  by  the 
 various  state  regulatory  bodies."  Id. 


 7  Pub.  L.  No.  104-  104,  110  Stat.  56  (1996). 


 8  United  States  v.  Western  Electric,  569  F.  Supp.  at  995. 
 9  The  Consent  Decree  required  AT&  T  to  divest  its  ownership  of  the  BOCs.  United  States  v.  American 
 Telephone  and  Telegraph  Co.,  552  F.  Supp.  131  (D.  D.  C.  1982),  aff'd  sub  nom.  Maryland  v.  United  States,  460 
 U.  S.  1001  (1983). 


 10  Petitions  for  Limited  Modification  of  LATA  Boundaries  to  Provide  Expanded  Local  Calling  Service 
 (ELCS)  at  Various  Locations,  Memorandum  Opinion  and  Order,  12  FCC  10646,  10648  (1997)  (July  1997  Order). 
 11  See  United  States  v.  Western  Electric  Company,  Inc.,  No.  82-  0192  (D.  D.  C.  Feb.  6,  1984);  United  States  v. 
 Western  Electric  Company,  Inc.,  No.  82-  0192  (D.  D.  C.  Mar.  15,  1984). 
 12  See  United  States  v.  Western  Electric  Company,  Inc.,  No.  82-  0192,  slip  op.  at  3  n.  8  (D.  D.  C.  July  19, 
 1984)  (hereinafter  July  1984  Order). 
 13  See,  e.  g.,  United  States  v.  Western  Electric  Company,  Inc.,  No.  82-  0192  slip  op.  at  2,  3  n.  3  (D.  D.  C.  Jan. 
 31,  1985)  (hereinafter  Jan.  1985  Order);  United  States  v.  Western  Electric  Company,  Inc.,  No.  82-  0192  (D.  D.  C. 
 Dec.  3,  1993);  United  States  v.  Western  Electric  Company,  Inc.,  No.  82-  0192  (D.  D.  C.  Dec.  17,  1993). 


 14  See  July  1984  Order,  at  2  n.  5. 
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 statements  describing  how  the  two  exchanges  were  part  of  one  community  and  how  the  lack  of 
 local  calling  between  the  exchanges  caused  problems  for  community  residents.  15  In  addition,  the 
 Department  and  the  District  Court  gave  deference  to  the  state's  community  of  interest  finding.  The 
 District  Court  also  considered  the  competitive  effects  of  granting  a  proposed  ELCS  waiver.  16 


 4.  Matters  previously  subject  to  the  Consent  Decree  are  now  governed  by  the  Act.  17 
 Under  section  3(  25)(  B)  of  the  Act,  BOCs  may  modify  LATA  boundaries,  if  such  modifications  are 
 approved  by  the  Commission.  18  On  July  15,  1997,  the  Commission  released  a  decision  granting  23 
 requests  for  limited  boundary  modification  to  permit  ELCS.  19  Although  calls  between  the  ELCS 
 exchanges  would  now  be  treated  as  intraLATA,  each  ELCS  exchange  would  remain  assigned  to  the 
 same  LATA  for  purposes  of  classifying  all  other  calls.  20  The  Commission  stated  that  it  would  grant 
 requests  for  such  limited  modifications  only  where  a  petitioning  BOC  showed  that  the  ELCS  was  a 
 flat-  rated,  non-  optional  service,  a  significant  community  of  interest  existed  among  the  affected 
 exchanges,  and  grant  of  the  requested  waiver  would  not  have  any  anticompetitive  effects.  21  The 
 Commission  stated  further  that  a  carrier  would  be  deemed  to  have  made  a  prima  facie  case  supporting 
 grant  of  the  proposed  modification  if  the  ELCS  petition:  (1)  has  been  approved  by  the  state 
 commission;  (2)  proposes  only  traditional  local  service  (i.  e.,  flat-  rated,  non-  optional  ELCS); 
 (3)  indicates  that  the  state  commission  found  a  sufficient  community  of  interest  to  warrant  such  service; 
 (4)  documents  this  community  of  interest  through  such  evidence  as  poll  results,  usage  data, 


 15  See  Jan.  1985  Order,  at  2-  3  &  n.  3. 
 16  See  July  1984  Order  at  3;  Jan.  1985  Order  at  2-  3;  United  States  v.  Western  Electric  Company,  Inc.,  No. 
 82-  0192,  slip  op.  at  2  (D.  D.  C.  May  18,  1993)  (hereinafter  May  1993  Order).  The  District  Court  granted  waivers 
 for  more  than  a  hundred  flat-  rated,  non-  optional  ELCS  plans  that  allow  the  provision  of  traditional  local  telephone 
 service  between  nearby  exchanges.  See,  e.  g.,  Western  Electric,  569  F.  Supp.  at  1002  n.  54;  July  1984  Order;  Jan. 
 1985  Order.  Under  such  plans,  subscribers  pay  no  extra  charge  for  calls  beyond  their  established  monthly  service 
 charge  (the  plan  involves  a  flat-  rated  charge),  and  all  subscribers  in  the  exchange  are  included  in  the  plan  (the  plan 
 is  non-  optional).  Id. 


 17  Section  601(  a)(  1)  of  the  1996  Act  states  that  "[  a]  ny  conduct  or  activity  that  was,  before  the  date  of 
 enactment  of  this  Act,  subject  to  any  restriction  or  obligation  imposed  by  the  AT&  T  Consent  Decree  shall,  on  and 
 after  such  date,  be  subject  to  the  restrictions  and  obligations  imposed  by  the  Communications  Act  of  1934  as 
 amended  by  this  Act  and  shall  not  be  subject  to  the  restrictions  and  obligations  imposed  by  such  Consent  Decree." 
 On  April  11,  1996,  the  D.  C.  District  Court  issued  an  order  terminating  the  AT&  T  Consent  Decree  and  dismissing 
 all  pending  motions  under  the  Consent  Decree  as  moot,  effective  February  8,  1996.  See  United  States  v.  Western 
 Electric  Company,  Inc.,  No.  82-  0192,  1996  WL  255904  (D.  D.  C.  Apr.  11,  1996). 


 18  See  47  U.  S.  C.    153(  25)(  B). 


 19  July  1997  Order,  supra,  n.  9. 
 20  If  an  exchange  were  assigned  to  another  LATA  for  all  purposes,  any  existing  local  calling  routes  between 
 that  exchange  and  the  original  LATA  would  be  lost  because  such  traffic  would  now  be  interLATA  and  could  no 
 longer  be  carried  by  the  BOC.  Instead,  the  traffic  would  generally  be  carried  by  an  interexchange  carrier  charging 
 long  distance  toll  rates. 


 21  July  1997  Order,  12  FCC  Rcd  at  10649-  50. 
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 and  descript  ions  of  the  communit  ies  involved;  and  (5)  involves  a  limited  number  of  cust  omers  or 
 access  lines.  22 


 III.  DISCUSSION 
 5.  This  petition  arises  from  a  formal  complaint  filed  with  the  Pennsylvania  Public  Utility 
 Commission  (PPUC)  alleging  inadequacies  with  regard  to  the  scope  of  the  local  calling  area  associated 
 with  several  Frontier  exchanges.  Complainants  are  Frontier  customers  who  reside  in  the  Genessee, 
 Shinglehouse,  and  Millport  exchanges.  The  Front  ier  exchanges  are  locat  ed  in  Pennsylvania  but  are  part 
 of  the  Buffalo,  New  York  LATA.  Complainants  believe  that  to  receive  adequate  access  to  community 
 educat  ional,  medical,  and  government  al  services  their  local  calling  area  should  include  t  he  Coudersport 
 and  Ulysses  exchanges.  Coudersport  and  Ulysses  are  Bell  Atlantic-  PA  exchanges  and  are  located  in 
 the  Altoona,  Pennsylvania  LATA.  In  response  to  the  complaint,  it  was  determined  that,  because  neither 
 Front  ier  nor  Bell  At  lant  ic-  PA  owns  or  operat  es  any  facilit  ies  that  connect  the  pert  inent  exchanges, 
 Frontier,  in  order  to  provide  ELCS  from  its  exchanges  to  the  Bell  Atlantic-  PA  exchanges,  would  either 
 have  to  lease  facilities  from  another  carrier  or  build  facilities.  Ultimately,  a  PPUC  administrative  law 
 judge  ordered  that  Frontier  build  new  facilities  to  create  a  route  between  Frontiers  Shinglehouse  office 
 and  Bell  Atlantic-  PAs  Bradford  office,  which  is  located  in  the  Altoona  LATA,  to  transport  calls  from 
 Frontier  to  Bell  Atlantic-  PA  exchanges. 


 6.  Subsequent  to  the  init  ial  det  erminat  ion  that  Front  ier  would  have  to  build  facilit  ies, 
 Frontier  and  Bell  Atlantic-  PA  reviewed  their  networks  and  realized  that  Frontiers  Shinglehouse  and 
 Bell  Atlantic-  PAs  Bradford  offices  interconnect  with  facilities  of  Bell  Atlantic-  New  York  (Bell 
 Atlantic-  NY)  and  can  be  switched  in  Olean,  New  York.  This  realization  obviated  the  need  for  the 
 construction  of  a  new  interoffice  facility  and  a  new  settlement  was  reached.  Under  the  new  settlement, 
 Bell  Atlantic-  PA  agreed  to  bill  Frontier  for  the  use  of  transport  facilities  to  transport  traffic  from 
 Frontier  customers  through  Bell  Atlantic-  NY  facilities  to  Bell  Atlantic-  PA.  The  settlement  also  stated 
 that  Bell  Atlantic-  PA  would  request  permission  from  the  Commission  to  handle  the  interLATA  traffic 
 at  issue.  The  stipulation  also  stated  that  AT&  T  would  not  oppose  such  a  request  to  the  Commission. 


 7.  In  most  import  ant  respect  s,  this  pet  it  ion  is  very  similar  to  an  earlier  LATA  order  that 
 authorized  Bell  Atlantic  to  transport  calls  that  originated  with  RCN  customers  in  Easton,  Pennsylvania, 
 crossed  a  LATA  boundary,  and  terminated  with  Bell  Atlantic  customers  in 


 22  Id.  at  10659.  The  Commission  also  delegated  authority  to  act  on  petitions  to  modify  LATA  boundaries  to 
 the  Common  Carrier  Bureau.  Id.  at  10657-  58.  On  August  6,  1997,  the  Commission  released  a  decision  granting 
 requests  to  modify  LATA  boundaries  to  permit  three  independent  telephone  company  (ITC)  exchanges  in  Texas  to 
 change  LATA  association  for  purposes  of  improving  service  to  subscribers.  The  Commission  stated  that  a  carrier 
 will  be  deemed  to  have  made  a  prima  facie  case  supporting  grant  of  a  proposed  association  change  if  the  petition: 
 (1)  states  that  the  association  change  is  necessary  because  of  planned  upgrades  to  the  ITC's  network  or  service  that 
 will  require  routing  traffic  through  a  different  BOC  LATA;  (2)  involves  a  limited  number  of  access  lines;  and  (3) 
 includes  a  statement  from  the  affected  BOC(  s)  requesting  a  LATA  modification,  pursuant  to  section  3(  25)  of  the 
 Act,  to  permit  the  change  in  association.  Petitions  for  LATA  Association  Changes  by  Independent  Telephone 
 Companies,  Memorandum  Opinion  and  Order,  12  FCC  Rcd  11769  (1977)  (August  1997  Order). 
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 Phillipsburg,  New  Jersey  (RCN  Order).  23  In  the  RCN  Order,  RCN  and  Bell  Atlantic  each  had  agreed 
 t  o  t  ransport  and  terminat  e  local  traffic  originat  ing  on  the  ot  hers  net  work,  but  Bell  At  lant  ic  quest  ioned 
 whether  it  had  the  authority  to  transport  and  terminate  local  calls  originated  by  or  terminating  to  a 
 competitive  local  exchange  carrier  (LEC).  24  We  concluded  in  the  RCN  Order  that  Bell  At  lant  ic  would 
 not,  merely  by  transporting  RCN  traffic,  be  in  violation  of  the  restrictions  on  BOC  provision  of 
 interLATA  service;  and  we  also  concluded  that  Bell  Atlantics  transportation  of  interLATA  traffic 
 originating  with  RCN  customers  is  the  type  of  action  that  encourages  competition  and,  therefore,  was 
 what  contemplated  by  the  1996  Act.  25 


 8.  Similarly,  in  t  he  present  case,  we  conclude  that  ,  merely  by  transport  ing  Front  ier  traffic 
 across  a  LATA  boundary,  Bell  At  lant  ic-  PA  would  not  violat  e  the  prohibit  ions  against  BOC  provision 
 of  interLATA  telephone  service.  We  also  find  that  the  criteria  for  a  LATA  modification  are  met.  26  In 
 concluding  that  the  Frontier  customers  needed  a  larger  local  calling  area,  the  PPUC  found  a  community 
 of  interest  between  the  Frontier  exchanges  and  Bell  Atlantic  exchanges.  This  community  of  interest 
 was  expressed  in  terms  of  calls  per  access  line  per  customer  and  in  the  medical  and  educational  services 
 utilized  by  Frontier  customers.  27  Given  the  small  number  of  access  lines  and  that  the  direction  of 
 service  is  one-  way  --  originating  with  Frontiers  customers  --  Bell  Atlantic-  PA  gains  no  advantage  that 
 would  lessen  its  section  271  incentives  in  Pennsylvania.  28 


 IV.  CONCLUSION 
 9.  We  conclude  t  hat  Bell  At  lant  ic-  PA  may  int  erconnect  wit  h  Bell  At  lant  ic-  NY  to 
 transport  calls  originating  from  Frontier  customers  in  the  Genesee,  Shinglehouse,  and  Millport 
 exchanges  and  terminating  in  the  Bell  Atlantic-  PA  exchanges  of  Coudersport  and  Ulysses. 


 V.  ORDERING  CLAUSES 
 10.  Accordingly,  IT  IS  ORDERED,  pursuant  to  sections  3(  25)  and  4(  i)  of  the 
 Communications  Act  of  1934,  as  amended,  47  U.  S.  C.    153(  25),  154(  i),  and  authority  delegated  by 
 Sections  0.91  and  0.291  of  the  Commissions  rules,  47  C.  F.  R.    0.91,  0.291,  that  the  request  of  Bell 
 Atlantic-  Pennsylvania  to  transport  Frontier  Communications  calls  across  a  LATA  for  the 


 23  See  Request  by  RCN  Telecom  Services  and  Bell  Atlantic  for  Clarification  of  Bell  Atlantics  Authority  to 
 Carry  Local  Traffic  Between  Exchanges  on  behalf  of  Competitive  Local  Exchange  Carriers,  14  FCC  13861 
 (1999). 


 24  Id.  at  13865,  para.  9. 


 25  Id.  13865-  87,  paras.  10-  13. 


 26  See  supra  para.  3. 
 27  Average  calls  per  Frontier  customer  per  month:  Genesee  to  Ulysses  -  6.  22;  Genesee  to  Coudersport  -  5.  37; 
 Millport  to  Ulysses  -  0.  82;  Millport  to  Coudersport  -  8.  09;  Shinglehouse  to  Ulysses  -  0.  19;  Shinglehouse  to 
 Coudersport  -  3.11. 


 28  Genesee  has  483  access  lines;  Shinglehouse  has  1,256  access  lines;  and  Millport  has  406  access  lines. 
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 limited  purpose  of  ext  ending  the  local  calling  area  of  Front  ier  cust  omers  to  the  specific  locat  ions, 
 identified  in  File  No.  NSD-  L-  99-  84,  IS  APPROVED. 


 11.  IT  IS  FURTHER  ORDERED  that  pursuant  to  section  416(  a)  of  the  Act,  47  U.  S.  C.   
 416(  a),  the  Secretary  SHALL  SERVE  a  copy  of  this  order  upon  the  petitioner,  Bell  Atlantic-Pennsylvania. 


 FEDERAL  COMMUNICATIONS  COMMISSION 


 L.  Charles  Keller 
 Chief,  Network  Services  Division 
 Common  Carrier  Bureau 
6