DA 92-108 Federal Communications Commission Record 7 FCC Red No. 3 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ALLNET COMMUNICATIONS SERVICES. INC.. Complainant, v. WISCONSIN BELL. INC., Defendant. File No. E-89-200 MEMORANDUM OPINION AND ORDER Adopted: January 10, 1992; Released: February 3, 1992 By the Chief, Common Carrier Bureau: I. INTRODUCTION I. On May 16. 1991. the Commission released a Memo­ randum Opinion and Order1 granting in part and dismiss­ ing in part complaints filed pursuant to Section 208 of the Communications Act (Act) 2 by Allnet Communica­ tions Services. Inc. (Allnet) against the National Exchange Carrier Association ( NECA) and thirty individual local exchange carriers (LECs). By further order adopted Sep­ tember 20. 1991.3 the Commission denied requests for reconsideration of its original order filed by Allnet and Wisconsin Bell. Inc. (Wisconsin Bell). 2. On October '21. 1991. Wisconsin Bell filed a petition for further reconsideration of the Allnet Order. Allnet opposes the petition for further reconsideration and Wis­ consin Bell replied to the Opposition. For the reasons stated below. we dismiss Wisconsin BeJl"s petition. II. BACKGROUND 3. Allnet"s complaints were based upon two Commis­ sion orders in CC Docket No. 88-1 in which the Commis­ sion disallowed certain projected revenue requirements associated with the LECs· 1988 access tariff filings.~ In its complaints. Allnet sought to recover from the defendants its prorated share of the unlawful disallowed amounts. In that order. however. the Commission had emphasized that the defendants would be given an opportunity to disclaim liability for refunds by showing that revenue requirement overstatements identified by the Commission in the CC Docket 88-1 proceeding were offset by understatements in other related expense categories. or that their earnings for 1 16 FCC Red 2608 (1991) (Allnet Order). 2 -17 U.S.C. § 208 (1988). 3 6 FCC Red 5663 (1991) (Reconsideration Order). ~ Annual 1988 Access Tariff Filings. CC Docket No. 88-1, Phase II. -I FCC Red 4115 ( 1988), recon.. -I FCC Red 3965 ( 1989), 932 the affected interstate access service category were below the Commission's authorized level for the relevant 1988 time period. 4. In the Allnet Order, the Commission found that a number of the defendant LECs successfully rebutted Allnet's claims by submitting evidence of offsets in other expense categories. The Commission also found, however. that since Ameritech, on behalf of Wisconsin Bell, had presented as evidence only overall corporate rather than individual access category earnings. it had failed to refute Allnefs claims of overearnings and was thus liable for refunds of a portion of the disallowed amounts to Allnet.5 In its request for reconsideration, Wisconsin Bell argued that it was not aware of the Commission ·s refund stan­ dards when it made its original evidentiary submission, and claimed that its actual earnings in the relevant access category were well below the authorized level. In the Reconsideration Order, the Commission agreed with Allnet's contention that the earnings figures submitted by Wisconsin Bell were not properly targeted to the correct time period (calendar year 1988). Therefore. the Commis­ sion did not reach the question of whether Ameritech, acting on behalf of Wisconsin Bell. should have been aware of the Commission's refund standards during the time of the original complaint proceedings. III. WISCONSIN BELL'S PETITION 5. Wisconsin Bell has now submitted a statement. in the form of an affidavit of its Director-Earnings Management. which it claims shows that its earnings level for the relevant 1988 time period was 9. 79% for the access cate­ gory at issue, well below the Commission"s prescribed level. Wisconsin Bell states that since it was not pre­ viously aware that 1988 was the relevant time period of Allnefs complaint. and that since the Commission had failed to make this clear in the Allnet Order, the proffered data should be accepted as evidence of non-liability for refunds. Allnet. in its opposition, claims that Wisconsin Bell's affidavit should not be allowed in the record since it does not constitute a new fact under Section 1.106 of the Commission ·s rules. and that Wisconsin Bell has not justified why the affidavit was not presented earlier. Allnet further claims that. if Wisconsin Bell's new submission is considered by the Commission. Allnet should be given the opportunity to conduct discovery to challenge the accuracy of the earnings data presented. In this regard. Allnet argues. inter alia, that the affidavit is not properly executed since it is not signed by an officer of Wisconsin Bell. IV. DISCUSSION 6. We have reviewed Wisconsin Bell"s petition for fur­ ther reconsideration. and find that the request is inconsis­ tent with the rule prohibiting reconsideration of a Commission order where reconsideration had previously further recon .. 4 FCC Red 7906 ( 1989), appeal pending sub nom. Southern Bell Telephone and Telegraph Co. v. FCC. No. 89- !08 I (D.C. Cir. filed Feb. 2. 1989). 5 Allnet Order at Appendix. 7 FCC Red No. 3 Federal Communications Commission Record DA 92-108 been denied. 6 Wisconsin Bell has provided no new evi­ dence which was not available at the time of the original complaint proceeding, nor has it shown that any changed circumstances or conditions warrant the requested relief.7 Even granting Wisconsin Bell's repeated argument that it did not become aware of the Commission's standards for determining liability for refunds until the Commission issued its decision in MC/ Telecommunications Corpora­ tion v. Pacific Northwest Bell Telephone Company, et al.,8 there still remained adequate time for Wisconsin Bell, or Ameritech acting on its behalf, to endeavor to supplement the record in the Allnet complaint proceedings. We are not aware of any such attempt having been made. V. ORDERING CLAUSE 7. Accordingly, IT IS ORDERED, pursuant to Section 4(i) of the Communications Act of 1934, as amended, 47 U.S.C. § 154(i), and authority delegated in Section l.106(k)(3) of the Commission's rules, 47 C.F.R. § l.106(k)(3 ). that the Petition for Further Reconsider­ ation filed by Wisconsin Bell. Inc. IS DISMISSED. FEDERAL COMMUNICATIONS COMMISSION Richard M. Firestone Chief. Common Carrier Bureau 6 Section l.106(k)(3) of the Commission's Rules, 47 C.F.R. § l.106-(k)(3), provides in pertinent part that "lal petition for reconsideration of an order which has been previously denied on reconsideration may be dismissed by the staff as repetitious." O'l'l 7 This ruling, however. does not preclude Wisconsin Bell from submitting the subject affidavit for consideration in the damages ~hase of this proceeding. 5 FCC Red 216 (1990), recon. denied, 5 FCC Red 3464 (1990), appeal dismissed sub nom. Mountain States Tel. & Tel. Co. et al. v. FCC. Case No. 90-9510 et al. (10th Cir. Dec. 13. 1991).