Federal Communications Commission DA 96-1750
Before the
FEDERAL COMMUNICATIONS COMMISSION 
Washington, D.C. 20554
In the Matter of )
)
AT&T Corp. Petition for Order ) 
Requiring Advance Production ) 
of Documents in Section 271 ) 
Proceedings )
ORDER
Adopted: October 23. 1996 Released: October 23. 1996
By the Chief, Common Carrier Bureau:
I. Introduction
1. This Order addresses AT&T's "Petition for an Order Requiring Advance 
Production of Motion to Vacate Documents." which was filed by AT&T on August 23. 1996. 
AT&T requests that the Commission direct Bell Atlantic. BellSouth, NYNEX. SBC. Ameritech, 
U S WEST, and Pacific Telesis ("the Bell companies") to make available to interested third 
parties, subject to a protective order, all documents and other materials that were produced to the 
Department of Justice in 1994 and 1995 in connection with the Bell companies' Motion to Vacate 
the Modification of Final Judgment and related requests. For the reasons stated below, we deny 
AT&T's Petition.
II. Background
2. In July 1994, Bell Atlantic. BellSouth. NYNEX. and SBC filed with the United 
States District Court for the District of Columbia a motion to vacate the Modification of Final 
Judgment ("Motion to Vacate"). 1 Among other things, the Modification of Final Judgment barred 
the Bell companies from providing interexchange telecommunications services.2 In August 1994. 
the court authorized the Depanment of Justice to undertake discovery in order to respond to the
' See Motion of Bell Atlantic Corporation. BellSouth Corporation. NYNEX Corporation, and Southwestern 
Bell Corporation to Vacate the Decree. United States v. Western Electric Co.. No. 82-0192 (D.D.C. July 6. 
1994).
2 See United States v. AT&T, 552 F. Supp. 131. 227 (D.D.C. 1982) (subsequent history omitted).
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Federal Communications Commission DA 96-1750
Motion to Vacate/ The court also noted that it was unnecessary at that time to grant discover) 
rights to panics other than the Department of Justice.
3. Pursuant to the court's order, the Department of Justice requested documents and 
took depositions relevant to the competitive issues raised in the Motion to Vacate. Ultimately, 
the Bell companies that joined the Motion to Vacate produced millions of pages of documents 
on a confidential basis ("Motion to Vacate materials").4
4. Because of the enactment of the Telecommunications Act of 1996 ("the 1996 Act") 
last February.5 the Department of Justice did not file reports on the Motion to Vacate or the 
separate related motions, and each of these motions was dismissed as moot.6 The Bell companies 
that joined the Motion to Vacate subsequently filed a motion requesting that the Department of 
Justice be ordered to return the Motion to Vacate materials.7 The Department of Justice opposed 
the motion and sought permission to retain the documents and to use them as appropriate in 
relevant proceedings under the 1996 Act. in particular, proceedings under new section 271 8 that 
allows the Bell companies to provide in-region. interLATA services if the Commission finds that 
certain conditions have been met.9
' See Order. United States v. Western Elec. Co.. No. 82-0192 (D.D.C. Aug. 18. 1994).
J According to AT&T, the Department of Justice may also have obtained discovery of similar kinds of 
materials from other Bell companies that made separate attempts to remove the interexchange services restriction. 
See Petition for an Order Requiring Advance Production of Motion to Vacate Documents at 3 (filed Aug. 23, 
1996).
5 See Pub. L. No. 104-104. 110 Stat. 56. codified si 47 U.S.C. §§ 151 et seq. Hereinafter, all citations to 
the 1996 Act will be to the 1996 Act as codified in Title 47 of the United States Code.
" See Order. United Stales v. Western Elec. Co.. No. 82-0192 (D.D.C. Feb. 8, 1996).
: See Response of Bell Atlantic. BellSouth. NYNEX. and SBC to this Court's Invitation to Address the 
Status of Previously Filed Motions. United States v. Western Electric Co.. No. 82-0192 (D.D.C. Feb. 28, 1996).
' See 47 U.S.C. §271.
' See Memorandum of the United States in Suppon of Motion for an Order Terminating the Decree and 
Confirming the Department of Justice's Continuing Rights with Respect to Decree Documents Now in its 
Possession. United Slates v. Western Electric Co.. No. 82-0192 (D.D.C. Feb. 28, 1996). This Commission filed 
an arnicas memorandum in support of the motion by the Department of Justice, stating that the public interest 
would be served if the court allowed the Department of Justice to r.etain the materials and make use of them in 
the course of the Commission's implementation of the 1996 Act. See Memorandum of Federal Communications 
Commission as Amicus Curiae in Support of Motion by Department of Justice for Order Confirming 
Depanment's Right to Retain and Use Certain Decree Documents. United States v. Western Electric Co.. No. 82- 
0192 (D.D.C. Mar. 7. 1996).
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Federal Communications Commission DA 96-l~50
5. In April 1996. the court ruled that the Department of Justice has the legal authority 
to retain the documents and to share them with the Commission to the extent they are relevant 
to Commission proceedings under the 1996 Act. 10 The court also ruled that, if the Bell company 
that submitted a document has asserted a claim of protection for that document under Rule 
26(c)(7) of the Federal Rules of Civil Procedure, the Department must advise the Commission 
of such claim and request that the document be handled by the Commission in accordance with 
the Commission's rules on confidentiality.
6. As of the date of this order, no Bell company has filed a section 271 application 
with the Commission. Moreover, the Commission has not taken possession of any Motion to 
Vacate materials in connection with a possible future section 271 application.
7. In the AT&T Petition currently at issue. AT&T requests that the Commission 
direct the Bell companies to make the Motion to Vacate materials available to interested third 
parties. AT&T argues that the materials are categorically relevant to the issues that will be raised 
by section 271 applications when they are filed, and that interested persons should be granted 
access to the documents now. in light of the short. 90-day time frame for section 271 proceedings 
under the 1996 Act. To protect the confidentiality of the documents. AT&T suggests that they 
be released subject to a standard protective order modeled on one the Commission used in its 
AT&T-McCaw Merger investigation."
8. Several Bell companies filed a joint opposition arguing that the AT&T Petition 
should be denied for two reasons: granting the petition would eviscerate the district court's order 
governing use of these same documents, and the petition is not supported by any basis for 
discovery under Commission rules and precedent. 12 Pacific Telesis also filed an opposition, 
maintaining that AT&T has no legal right to the materials and has not demonstrated their 
relevance to future section 271 proceedings. lj
9. AT&T filed a reply memorandum. 14 AT&T counters that the Commission plainly
10 See Opinion and Order, United States v. Western Elec. Co.. No. 82-0192 (D.D.C. Apr. 11. 1996).
11 See American Tel. and Tel. Co. and Craig O. McCaw (Applications for Consent to Transfer Control of 
Radio Licenses), Protective Order. 9 FCC Red 2613 (1994).
\- See Opposition of Bell Atlantic. BellSouth. NYNEX, SBC. and U S WEST to AT&T's Petition for 
Public Disclosure of the Bell Companies' Confidential Business Documents (filed Sept. 5. 1996).
15 See Opposition of Pacific Telesis Group to AT&T's Petition for an Order Requiring Advance Production 
of Motion to Vacate Documents (filed Sept. 3. 1996). In the event that the AT&T petition were granted. Pacific 
Telesis also urges revisions to the protective order submitted by AT&T.
14 See AT&T's Reply Memorandum in Support of its Petition for an Order Requiring Advance Production 
of Motion to Vacate Documents (filed Sept. 13, 1996).
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____ Federal Communications Commission DA %-1750
has authority to grant AT&T's request under section 4(i) of the Communications Act of 1934. l? 
and there is nothing in the district court's order that undermines that authority. In addition, it 
argues that any suggestion that AT&T should wait until a section 271 application is filed before 
making a request for the Motion to Vacate materials ignores the fact that once an application is 
filed, it will be difficult (given the short. 90-day time frame) for the Commission to decide the 
request, for the Bell companies to deliver the documents, and for AT&T meaningfully to review 
and comment upon them. 16
HI. Discussion
10. AT&T's request is akin to a discovery request, but unlike an ordinary discovery 
request: (1) it has been made before the applicable proceeding (or proceedings) has commenced: 
and (2) it seeks documents without regard to any individualized assessment of their relevance to 
the applicable proceeding (or proceedings). With respect to the latter point, we note the assertion 
in the joint Bell company opposition, not controverted by AT&T, that the Motion to Vacate 
materials are as many as ten years old, and none was created after 1995.'7 In light of these facts, 
we decline to grant8 AT&T's Petition.
11. We note, however, that our disposition of this request does not preclude interested 
third parties from seeking access to those Motion to Vacate materials that the Department of 
Justice deems relevant and transfers to us in the course of an actual section 271 proceeding. 
Where confidential treatment is requested for these documents and such treatment is appropriate, 
acfcess may be afforded subject to a protective order. In this regard, we are requesting public 
comment on a proposed standard protective order to be used in section 271 proceedings. 18
15 SeeATV.S.C. § 154(i).
16 As to Pacific Telesis's criticisms of AT&T's proposed protective order. AT&T notes that the order is 
almost identical to the one the Commission found adequate in the context of its AT& T-McCa\v Merger 
investigation. AT&T states, however, that it would not oppose Pacific Telesis's proposal to modify the 
protective order to restrict use of the documents to section 271 proceedings.
'" See Opposition of Bell Atlantic. BellSouth. NYNEX, SBC. and U S WEST to AT&T's Petition for 
Public Disclosure of the Bell Companies' Confidential Business Documents at 2 (filed Sept. 5. 1996).
16 See Comment Sought on Standard Protective Order to be Used in Connection with Section 271 
Applications. DA 96-1751 (rel. Oct. 23, 1996).
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Federal Communications Commission______ DA 96-1750
IV. Ordering Clauses
12. Accordingly, IT IS ORDERED, pursuant to Sections 4(i) and 4(j) of the 
Communications Act of 1934, as amended. 47 U.S.C. §§ 154(i) and 154(j). that AT&T's Petition 
for an Order Requiring Advance Production of Motion to Vacate Documents is DENIED for the 
reasons discussed above.
FEDERAL COMMUNICATIONS COMMISSION
Regina"W. Keeney I 
Chief, Common Carrier Bureau
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