Federal Communications Commission DA 11-981 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of AT&T Inc. Petition for Waiver of Section 61.42(g) of the Commission’s Rules ) ) ) ) ) ) WCB/Pricing File No. 11-06 ORDER Adopted: June 2, 2011 Released: June 2, 2011 By the Chief, Pricing Policy Division, Wireline Competition Bureau: I. INTRODUCTION 1. AT&T Inc. (AT&T) filed a petition on April 11, 2011, seeking a limited waiver of section 61.42(g) of the Commission’s rules to exclude its True IP to PSTN (TIPToP) service from any price cap basket in the upcoming 2011 annual access tariff filing.1 For the reasons explained below, we find good cause to grant AT&T the requested waiver for purposes of its 2011 annual access tariff filing.2 II. BACKGROUND 2. AT&T has requested a limited waiver of section 61.42(g) of the Commission’s rules so that it may exclude its TIPToP service from any price cap basket for purposes of the 2011 annual access tariff filing.3 AT&T states that TIPToP provides entities it refers to as “Internet Protocol Voice Information Service Providers” (IP-VIS Providers) with connectivity to the AT&T network.4 The service includes “one-way or two-way port interfaces that provide trunking and switching components in a single, easy to use, time division multiplexed interface.”5 This interface provides connectivity to “AT&T users and to non-AT&T users that are subtended by AT&T’s access tandems.”6 1 AT&T Inc. Petition for Waiver of Section 61.42(g) of the Commission’s Rules and Request for Expedited Treatment, WCB/Pricing File No. 11-06, at 1-2 (filed Apr. 11, 2010) (AT&T Petition). AT&T filed the petition on behalf of Pacific Bell Telephone Company, Southwestern Bell Telephone Company, the Ameritech Operating Companies, the Southern New England Telephone Company, and Nevada Bell Telephone Company. Id. at 1. See 47 C.F.R. §§ 61.42(g) (new services must be included in the annual price cap filing in the year after the one in which they are introduced). 2 See 47 C.F.R. § 61.43 (annual price cap filing requirements). 3 AT&T Petition at 1-2. The Wireline Competition Bureau (Bureau) issued a Public Notice seeking comment on AT&T’s petition. See Comments Sought on AT&T Petition For Waiver of Section 61.42(g) of the Commission’s Rules, WCB/Pricing File No. 11-06, Public Notice, DA 11-703 (Wireline Comp. Bur. rel. Apr. 18, 2011). No comments were filed in this proceeding. 4 AT&T Petition at 1-2. 5 Id. at 2. 6 Id. Federal Communications Commission DA 11-981 2 3. TIPToP first was tariffed in November 2004 and therefore should have been included in the appropriate price cap basket in the 2005 annual access filing.7 SBC Services Inc. (now part of AT&T) requested a waiver to exclude TIPToP from price caps in the 2005 annual access tariff filing, and the Bureau found that special circumstances existed due to the nature of this service and granted the waiver on June 6, 2005.8 In subsequent years, AT&T requested a waiver to exclude TIPToP from price caps in its annual access tariff filings, and the Bureau granted these waivers each year from 2006 to 2010.9 Absent an additional waiver, AT&T would be required to include TIPToP in the appropriate price cap basket in its 2011 annual access tariff filing.10 III. DISCUSSION 4. The Commission may waive its regulations for good cause shown.11 In general, the waiver request must demonstrate special circumstances warranting a deviation from the general rule and that such a deviation will serve the public interest.12 As we did in prior years and for similar reasons, we find that good cause exists to grant AT&T a limited waiver of section 61.42(g) for TIPToP service for purposes of the 2011 annual access tariff filing. We agree with AT&T that special circumstances exist due to the nature of the service and the limited demand for that service. AT&T explains that this service is not currently purchased by any unaffiliated customers.13 In particular, we agree that TIPToP does not fit squarely within the price cap structure because it appears to include both traffic-sensitive and trunking elements and that a waiver would preserve the status quo until the Commission determines the appropriate treatment of the service under the price cap regime.14 The Commission is considering the appropriate regulatory treatment of IP-based services, including the intercarrier compensation rules that apply to IP-originated traffic, in a number of open proceedings.15 The requested waiver will serve the public interest by permitting the Commission to address the appropriate regulatory treatment of IP- 7 Id. at 2; see 47 C.F.R. § 61.42(g). 8 See SBC Services Inc. Petition for Waiver of Section 61.42(g) of the Commission’s Rules, WCB/Pricing File No. 05-24, Order, 20 FCC Rcd 10102 (Wireline Comp. Bur. 2005). 9 See AT&T Inc. Petition for Waiver of Section 61.42(g) of the Commission’s Rules, WCB/Pricing File No. 06-18, Order, 21 FCC Rcd 5968 (Wireline Comp. Bur. 2006); AT&T Inc. Petition for Waiver of Section 61.42(g) of the Commission’s Rules, WCB/Pricing File No. 07-08, Order, 22 FCC Rcd 8666 (Wireline Comp. Bur. 2007); AT&T Inc. Petition for Waiver of Section 61.42(g) of the Commission’s Rules, WCB/Pricing File No. 08-11, Order, 23 FCC Rcd 8313 (Wireline Comp. Bur. 2008); AT&T Inc. Petition for Waiver of Section 61.42(g) of the Commission’s Rules, WCB/Pricing File No. 09-05, Order, 24 FCC Rcd 7643 (Wireline Comp. Bur. 2009); AT&T Inc. Petition for Waiver of Section 61.42(g) of the Commission’s Rules, WCB/Pricing File No. 10-06, Order, 25 FCC Rcd 5757 (Wireline Comp. Bur. 2010). 10 AT&T Petition at 2; 47 C.F.R. § 61.42(g). 11 47 C.F.R. § 1.3. 12 See Northeast Cellular Telephone Co. v. FCC, 897 F.2d 1164, 1166 (D.C. Cir. 1990) (citing WAIT Radio v. FCC, 418 F.2d 1153, 1159 (D.C. Cir. 1969)). 13 AT&T Petition at 3. 14 Id. 15 See, e.g., Connect America Fund, WC Docket No. 10-90, A National Broadband Plan for Our Future, GN Docket No. 09-51, Establishing Just and Reasonable Rates for Local Exchange Carriers, WC Docket No. 07-135, High- Cost Universal Service Support, WC Docket No. 05-337, Developing an Unified Intercarrier Compensation Regime, CC Docket No. 01-92), Federal-State Joint Board on Universal Service, CC Docket No. 96-45), Lifeline and Link-Up, WC Docket No. 03-109, Notice of Proposed Rulemaking and Further Notice of Proposed Rulemaking, 26 FCC Rcd 4554 (2011); Developing a Unified Intercarrier Compensation Regime, CC Docket No. 01-92, Further Notice of Proposed Rulemaking, 20 FCC Rcd at 4685 (2005); IP-Enabled Services, WC Docket No. 04-36, Notice of Proposed Rulemaking, 19 FCC Rcd 4863 (2004). Federal Communications Commission DA 11-981 3 originated traffic in a more comprehensive manner before addressing more detailed issues, such as the appropriate price cap baskets within which particular new services should be placed. 5. In granting this waiver, we note that continued regulatory oversight over TIPToP service will allow the Bureau to address any discriminatory or anti-competitive pricing that might occur. AT&T’s TIPToP rates are subject to Part 61, subparts E and F of the Commission’s rules, which provide protection against unreasonable rate increases.16 These rules require AT&T to justify any rate increases it seeks for its TIPToP service by providing cost and other supporting data in the tariff review process.17 Moreover, excluding TIPToP from price cap baskets in the 2011 annual filing would not affect any price cap rates.18 Thus, although TIPToP will remain outside of price cap regulation under the limited waiver granted here, we find that regulation pursuant to the Part 61 rules is sufficient to address any potential issues that may arise concerning the effects of the waiver on the 2011 annual filing. IV. ORDERING CLAUSE 6. Accordingly, IT IS ORDERED that, pursuant to sections 201-205 of the Communications Act of 1934, as amended, 47 U.S.C. §§ 201-205, section 1.3 of the Commission’s rules, 47 C.F.R. § 1.3, and the authority delegated pursuant to sections 0.91 and 0.291 of the Commission’s rules, 47 C.F.R. §§ 0.91, 0.291, section 61.42(g) of the Commission’s rules IS WAIVED for TIPToP service offered by AT&T with respect to AT&T’s 2011 annual access tariff filing, required by section 61.43 of the Commission’s rules, 47 C.F.R. §§ 61.42(g), 61.43. FEDERAL COMMUNICATIONS COMMISSION Albert M. Lewis Chief, Pricing Policy Division Wireline Competition Bureau 16 See 47 C.F.R. Part 61, Subparts E & F. 17 Id. 18 See 47 C.F.R. §§ 61.47(a), (b) (describing service band index adjustments that are not required because TIPToP service will not be included in any price cap basket).