Compet Telecom Assn v. FCC

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 5, 2002 Decided October 25, 2002

No. 00-1272

Competitive Telecommunications Association,
Petitioner

v.

Federal Communications Commission and
United States of America,
Respondents

AT&T Corporation, et al.,
Intervenors

On Petition for Review of an Order of the
Federal Communications Commission

Robert J. Aamoth argued the cause and filed the briefs for
petitioner.

Mark D. Schneider argued the cause for intervenors
WorldCom, Inc., et al., in support of petitioner. With him on

the briefs were Michael B. DeSanctis, Katherine A. Fallow,
Thomas F. O'Neil III, William Single IV, David W. Carpen-
ter, Peter D. Keisler, C. Frederick Beckner III, Mark C.
Rosenblum, Charles C. Hunter, and Catherine M. Hannan.

John E. Ingle, Deputy Associate General Counsel, Federal
Communications Commission, argued the cause for respon-
dents. With him on the briefs were John Rogovin, Deputy
General Counsel, and Laurence N. Bourne, Counsel. Nancy
C. Garrison, Attorney, U.S. Department of Justice, entered
an appearance.

Michael K. Kellogg argued the cause for intervenors SBC
Communications Inc., et al., in support of respondents. With
him on the briefs were Aaron M. Panner, Michael E. Glover,
Edward Shakin, Gary L. Phillips, James D. Ellis, and
Robert McKenna, Jr.

Before: Edwards and Rogers, Circuit Judges, and
Williams, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge
Williams.

Williams, Senior Circuit Judge: The Telecommunications
Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (codified at 47
U.S.C. s 151 (2000)), requires "incumbent" Local Exchange
Carriers ("ILECs")--the Bell Operating Companies and their
successors, inheritors of AT&T's local exchange facilities and
services--to lease unbundled network elements ("UNEs") to
their competitors, the competitive Local Exchange Carriers
("CLECs"). See s 251(c)(3) of the Act, 47 U.S.C. s 251(c)(3).
The object is to enable CLECs to provide telecommunications
services in competition with the ILECs. Petitioner Competi-
tive Telecommunications Association ("CompTel") is com-
posed of CLECs, many of whom--perhaps all--are also inter-
exchange carriers ("IXCs"). CompTel seeks review of two
interim Federal Communications Commission orders, In re
Implementation of the Local Competition Provisions of the
Telecommunications Act of 1996, Supplemental Order, 15
FCC Rcd 1760 (1999) ("Supplemental Order"), and In re
Implementation of the Local Competition Provisions of the

Telecommunications Act of 1996, Supplemental Order Clari-
fication, 15 FCC Rcd 9587 (2000) ("Clarification"), which
impose some limits on CompTel's members' access to certain
UNEs.

Specifically, the orders address CLECs' access to a combi-
nation of UNEs known as the enhanced extended link
("EEL"). EELs consist of unbundled loops and transport
network elements. Clarification, 15 FCC Rcd 9587 at p 2. A
loop is a telephone line that runs from the customer's premis-
es to the ILEC "end office," which houses switches used to
route calls to their destination. A transport then takes the
traffic to the IXC or CLEC office, which will route the call to
its final destination. Leasing this combination of facilities
enables new entrants to compete without building their own
local loops and transport facilities. And it is especially desir-
able for them to acquire EELs as UNEs because as such
they are priced under a formula of the Commission's known
as "total-element long run incremental cost," or "TELRIC."
By contrast, the same functions are more costly if they are
purchased as a part of the ILEC's tariffed services (evidently
under mandates imposed by the Commission pursuant to
s 201), and known in this guise as Special Access services.

An EEL is useful both for the provision of long distance
and local service, and the Commission here sought to channel
CLECs' use of EELs toward local service. In the Supple-
mental Order it limited access to firms who would use EELs
to provide "a significant amount of local exchange service."
Supplemental Order, 15 FCC Rcd 1760 at p 2. In the Clarifi-
cation it refined this concept and embodied it in numerically
defined safe harbors. Clarification, 15 FCC Rcd 9587 at p 22.

CompTel contests the restriction favoring provision of local
service, stating that the 1996 Act does not allow the FCC to
make that sort of distinction (referred to as a use or a
service-by-service restriction). It further argues that none of
the FCC's justifications for the interim rules makes it accept-
able. Finally, it argues that the safe harbor provisions of the
order are arbitrary and capricious, mainly asserting that they
impose tracking burdens that are difficult or impossible for

the CLECs to fulfill and that they impose needless restric-
tions against commingling of local and long distance traffic.
We first address the timeliness of this appeal. Once having
found jurisdiction, however, we are unpersuaded by Comp-
Tel's merits claims.

* * *

A petition for judicial review of a final order of the FCC
must be filed "within 60 days after its entry." 28 U.S.C.
s 2344 (2000); see also 47 U.S.C. s 402(a). In this case, the
petition for review was filed within 60 days of the Clarifica-
tion but not within 60 days of the Supplemental Order.
Respondent argues that it is timely only as to claims that
arose from the Clarification, not as to ones essentially aimed
at the Supplemental Order.

But the Clarification radically changed the Supplemental
Order in a way we have not yet mentioned. In the Supple-
mental Order the Commission said that it would issue a final
decision on the EELs restriction in the Fourth Further
Notice of Proposed Rulemaking ("FNPRM"), which notice
"will occur on or before June 30, 2000." Supplemental
Order, 15 FCC Rcd 1760 at p 2 (emphasis added). In its
Clarification, the FCC freed itself of this deadline, continuing
to state that the order would last until the Fourth FNPRM
but giving no time period in which that would occur. Clarifi-
cation, 15 FCC Rcd 9587, at p p 1, 35.

We hold that this extension newly aggrieved CompTel and
thus made its petition timely. See Sam Rayburn Dam Elec.
Coop. v. Fed. Power Comm'n, 515 F.2d 998, 1007 (D.C. Cir.
1975) (stating that where a party was "aggrieved" by a later
interpretation of a rule that it could not have reasonably
anticipated, the time limit starts to run at the later event).
Cases have held that extension of a temporary order may
entitle the parties to seek judicial review of the order. See
Public Citizen v. Nuclear Regulatory Comm'n, 901 F.2d 147,
151 (D.C. Cir. 1990) (holding that where a temporary order is
later made permanent, the permanent order may be chal-
lenged); Illinois Cent. Gulf R.R. v. Interstate Commerce

Comm'n, 720 F.2d 958, 961 (7th Cir. 1983) (holding that a
temporary order with no fixed time period had lasted so long
as to make judicial review timely).

Here the initial order appeared to present CompTel with
the prospect of enduring an interim order for a period of no
more than six months. After six months, another order was
issued extending the time period and setting no ultimate date
of resolution. The rules have now been in place for over two
and a half years. If we were to hold that such a petition is
not timely, a party that found an order not worth litigating
because of its apparently short term would have to sue for
fear that it might drag on indefinitely. And we might also
create a temptation for the FCC to let its deadlines slip.
Thus we find the petition for review timely.

* * *

CompTel finds in the language of the 1996 Act a bar on the
Commission's making a service-by-service distinction in decid-
ing under what circumstances an ILEC is required to lease
UNEs. We review, of course, under the usual standard of
Chevron U.S.A. Inc. v. Natural Resources Defense Council,
467 U.S. 837, 842-43 (1984), under which the court must give
effect to the clearly expressed intent of Congress, and must if
the statute is ambiguous defer to any reasonable construction
by the agency. The parties appear to assume that neither
the Act as a whole nor s 251(d)(2)(B) in particular requires
that impairment findings be service-by-service or that the
UNE mandates be confined to services as to which such a
finding has been made; accordingly we do not address those
issues, but rather try only to answer the question of whether
the Act bars such service-by-service distinctions.

The first source CompTel points to as a basis for barring a
service-by-service distinction--in other words, requiring that
any UNE be mandatory for all telecommunications services,
once it is found appropriate for one telecommunications ser-
vice--is s 251(c)(3). It says that incumbent local exchange
carriers have

 [t]he duty to provide, to any requesting telecommunica-
tions carrier for the provision of a telecommunications
service, nondiscriminatory access to network elements on
an unbundled basis at any technically feasible
point....

47 U.S.C. s 251(c)(3).

We do not see that the phrase "for the provision of a
telecommunications service" helps CompTel. If Congress
had spoken of "the provision of any telecommunication ser-
vice," the language might conceivably be taken to suggest
that once an element was ordered to be made available for
one telecommunications service, it must be made available for
all. But the vaguer phrasing chosen by Congress does not
lend itself even to that suggestion.

CompTel also sees hope in s 251(d)(2)(B), which states that

[i]n determining what network elements should be made
available for purposes of subsection (c)(3) of this section,
the Commission shall consider, at a minimum, whether--
...

(B) the failure to provide access to such network ele-
ments would impair the ability of the telecommunica-
tions carrier seeking access to provide the services that
it seeks to offer.

47 U.S.C. s 251(d)(2) (emphasis added). Far from helping
CompTel's cause, this passage seems to cut strongly against
it. By referring to the "services that [the requesting carrier]
seeks to offer," it seems to invite an inquiry that is specific to
particular carriers and services. That the Commission has
never gone down the path of carrier-by-carrier UNE analysis
provides no basis that we can see for making it forego
service-by-service limitations.

In United States Telecom Association v. Federal Commu-
nications Commission, 290 F.3d 415 (D.C. Cir. 2002)
("USTA"), we clearly found in the FCC an authority to make
distinctions that were based on regional differences or on
customer markets. See id. at 422-23. If these are permissi-

ble, it is hard to understand why the Act would not allow
restrictions keyed to a specific "service" of the requesting
carriers. The Clarification offers the essential and compel-
ling reasoning:

Although ambiguous, that language [s 251(d)(2)] is rea-
sonably construed to mean that we may consider the
markets in which a competitor "seeks to offer" services
and, at an appropriate level of generality, ground the
unbundling obligation on the competitor's entry into
those markets in which denial of the requested elements
would in fact impair the competitor's ability to offer
services.

Clarification, 15 FCC Rcd 9587 at p 15. CompTel's theory,
by contrast, would mean that once the Commission found a
single purpose as to which an "element" met the impairment
standard, no matter how limited, it would be forced to man-
date provision of the element for all, no matter how little
potential impairment was involved in the remainder of the
telecommunications field. CompTel never explains what logic
could have persuaded Congress to lock the Commission into
such a scheme.

CompTel also claims support in the Act's definition of a
"network element" as "a facility or equipment used in the
provision of a telecommunications service." See 47 U.S.C.
s 153(29). We cannot discern a bar on service-by-service
mandates in this bland phrasing.

Finally, CompTel argues that past orders of the FCC make
it clear that the FCC understood the statute not to allow it to
make a service-by-service distinction. CompTel points to
orders issued by the FCC both before and after the court's
decision in AT&T Corp. v. Iowa Utilities Board, 525 U.S. 366
(1999). See In re Implementation of the Local Competition
Provisions in the Telecommunications Act of 1996, First
Report and Order, 11 FCC Rcd 15499 at p p 264, 356, 358
(1996) ("Local Competition Order"); In re Implementation of
the Local Competition Provisions of the Telecommunications
Act of 1996, Third Report and Order and Fourth Further
Notice of Proposed Rulemaking, 15 FCC Rcd 3696 at p 484

(1999) ("UNE Remand Order"). In the Clarification the FCC
indeed acknowledged that

[b]efore the Supreme Court issued its decision in Iowa
Utilities Board, we sometimes approached an incum-
bent's obligation to unbundle network elements as
though it were an all-or-nothing proposition, suggesting
that, if a competitor were entitled to obtain access to an
element for one purpose, it was generally also entitled to
obtain access to that element for wholly different pur-
poses as well.

See Clarification, 15 FCC Rcd 9587 at p 12. The FCC
further acknowledged that it had not properly focused on the
relationship between that issue and the impair standard, and
that the court's opinion in Iowa Utilities Board made it
appropriate to "revisit the issue." Id. The Commission is
clearly correct that Iowa Utilities Board required it to limit
its former all-encompassing interpretation of the necessary
and impair language of 47 U.S.C. s 251(d)(2). Iowa Utils.
Bd., 525 U.S. at 388-90; see also USTA, 290 F.3d at 418-19.

CompTel points out that the FCC's statement in the UNE
Remand Order followed Iowa Utilities Board; CompTel
reads the statement as a reaffirmation of a prohibition on use
restrictions. But the relevant section plainly does no more
than accurately recount past Commission conclusions, re-
peatedly saying, "the Commission found ...," and closing
with the observation that its rule against usage restrictions
"was not challenged in court by any party." UNE Remand
Order, 15 FCC Rcd 3696 at p 484. Other provisions of the
order made it clear that the FCC did not consider the issue at
all settled. See, e.g., id. at p p 489, 493-96. The FCC is
obviously entitled--indeed required--to reconsider orders
that rest on faulty readings of a statute. That is all it has
done here.

* * *

CompTel next argues that even if the Commission is autho-
rized to place service-by-service restrictions on the use of
UNEs, it acted arbitrarily and capriciously because its justifi-

cations for doing so here were unreasonable. As we said
above, all hands assume that the Commission can mandate
provision of a UNE for all telecommunications services even
though its finding of s 251(d)(2)(B) impairment is based on
only one service. But it is far from obvious to us that the
FCC has the power, without an impairment finding as to non-
local services, to require that ILECs provide EELs for such
services on an unbundled basis. Here there is no finding by
the Commission that lack of access to EELs would "impair"
CLECs' ability to provide long distance or exchange access
service. Rather the FCC observed in the Clarification that it
had the power to inquire into whether there was any such
impairment, Clarification, 15 FCC Rcd 9587 at p 15, but it
then explicitly declined to reach that question without a
chance to "gather evidence," id. at p p 16-17. CompTel
makes no argument that the Commission should have (or
even could have!) made any finding without further evidence.
As both parties assume, however, that the Commission can
require a network element to be unbundled for all services
when it only finds it to be impaired as to one service, we
accept the assumption arguendo and address the question of
whether it exercised reasonable judgment in withholding such
a requirement here.

The FCC gives in essence two justifications for its interim
restrictions on the unbundling of EELs. First, it argues that
the rule is necessary to avoid disruption of its reform of
access charge policies and of the implicit subsidies for univer-
sal service that remain embedded in access charges. It also
reasons that its restrictions are needed to promote facilities-
based competition.

Avoidance of market disruption pending broader reforms
is, of course, a standard and accepted justification for a
temporary rule. See, e.g., MCI Telecommunications Corp. v.
Fed. Communications Comm'n, 750 F.2d 135, 141 (D.C. Cir.
1984); see also ACS of Anchorage, Inc. v. Fed. Communica-
tions Comm'n, 290 F.3d 403, 410 (D.C. Cir. 2002). Here the
broader reform involves an attempt to make access charges
more truly cost based and to correct the divergences from
cost that have been mandated in the interest of implicitly

subsidizing some users at the expense of others. See In re
Access Charge Reform, First Report and Order, 12 FCC Rcd
15982 at p p 42, 44 (1997) ("Access Charge Reform Order").
Both of the orders that the FCC cites as part of its "access
charge reform policies" are steps on the way to eliminating
implicit subsidies. Id.; In re Access Charge Reform, Sixth
Report and Order in CC Docket Nos. 96-262 and 94-1,
Report and Order in CC Docket No. 99-249, Eleventh Report
and Order in CC Docket No. 96-45, 15 FCC Rcd 12962 at
p p 24-25 (2000) ("CALLS Order").

The link between access charge reform and unrestricted
access to EELs is that without the restrictions competitive
carriers would use EELs as an alternative to switched access
services and thus avoid paying the implicit subsidy, under-
mining the subsidy scheme. Supplemental Order, 15 FCC
Rcd 1760 at p 7.

CompTel does not appear to deny either that the Commis-
sion can justify a policy by reference to the purposes of
avoiding disruption pending a broader reform, or that the
EEL restriction would disrupt implicit subsidies contained in
access charges. Rather, it asserts that the access reform is
actually complete rather than pending, so that the Commis-
sion's justification is pure pretext.

The first variation of this claim is an argument that 47
U.S.C. s 254(a) requires elimination of implicit subsidies
within 15 months of adoption of the Act, i.e., by May 1997;
thus, apparently, any residual implicit subsidies are illegiti-
mate and not a permissible basis for the Commission's orders.
This is a misreading of s 254(a). The section requires that
the Commission start a proceeding to assess recommenda-
tions of a Federal-State Joint Board on the subject and
complete the proceeding within 15 months of the date of
enactment, setting a timetable for the reform. 47 U.S.C.
s 254(a). But there is no time limit on realization of the
reform. And the petitioner offers no evidence to show why
the proposed timetable given by the CALLS Order is unrea-
sonable.

 Second, CompTel argues that the CALLS Order, issued
two days prior to the Supplemental Order, immediately
eliminated implicit subsidies for universal service, replacing
them with an explicit mechanism of support. Since the FCC
has totally removed implicit subsidies, CompTel claims there
are none left to protect. In support CompTel cites p 202 and
other sections of the CALLS Order, arguing that the FCC
estimated the cost of universal support to be $650 million per
year and immediately created an explicit support mechanism
of exactly that amount. See CALLS Order, 15 FCC Rcd
12962 at p p 30, 32, 186, 196, 201, 202, 226. But a close look at
the CALLS Order makes clear that implicit subsidies are
phased out over time.

The CALLS Order identifies a number of elements in
access charges that have been sources of revenue for implicit
subsidies. See id. at p 23. It names (1) the multi-line
business Presubscribed Interexchange Carrier Charge
("PICC"), which is a flat per-line charge imposed by a ILEC
on an end user's IXC, see id. at p p 2, 19; (2) Carrier
Common Line ("CCL") rates (per-minute charges assessed on
the end user's IXC whenever the end user placed an inter-
state long-distance call), see id. at p 18, which have per-
minute charges for a service that has a fixed cost; and (3)
geographic averaging, which suppresses geographically based
cost differentials and subsidizes users in the more costly low-
density areas. Id. at p 23.

The CALLS Order's treatment of these charges makes us
confident that it did not stop the subsidies on a dime. While
multi-line business PICCs are higher than would be appropri-
ate (vis-A-vis cost) given the caps on subscriber line charges
for residential and single-line businesses, id. at p 23, the
CALLS Order phases them out over a five-year period. See
id. at p 110 ("For example, we estimate that by July 2004, the
multi-line business PICC will be eliminated under ... the
proposal for all BOCs except for BellSouth, which would have
a multi-line business PICC at that time of approximately
$0.20 per line.") If this were not strong enough evidence,
p 111 specifically recognizes that the existence of this rate in
some areas "may constitute an implicit non-portable subsidy."

Id. at p 111. It then goes on to justify this subsidy as an
interim mechanism that provides a reasonable solution to the
tension between protecting universal service and providing
cost based rates. Id.

Similarly the Commission provides for gradual phase-out of
the CCL charges, see id. at p 144 ("Upon the earlier of the
elimination of the CCL charges or June 30, 2004"), speaks of
"reducing" averaging, id. at p 26, and indicates that deaverag-
ing will proceed under "limited conditions and safeguards,"
id. at p 115.

Thus, in three major areas, subsidies are gradually pared
back over time. As the implicit subsidies for universal ser-
vice have not been eliminated, the FCC has an interest in
preserving the process of their gradual reduction and extinc-
tion.

Finally, CompTel attacks the Commission's explanation of
the orders as an effort to protect facilities-based access
providers. Invoking this interest, the Commission said that
immediate provision of special access as a UNE "could under-
cut the market position of many facilities-based competitive
access providers," a form of access that originated in the mid-
1980s and "is a mature source of competition in telecommuni-
cations markets." Clarification, 15 FCC Rcd 9587 at p 18.
CompTel argues that favoring facilities-based competition is
not a valid policy goal.

But the Supreme Court's discussion of the incentive effects
of TELRIC in Verizon Communications, Inc. v. Federal
Communications Commission, 122 S. Ct. 1646 (2002), would
be meaningless if the Court had not understood the Act to
manifest a preference for facilities-based competition. In-
deed, the Court puts it expressly, characterizing the ILECs'
critique of TELRIC as a claim that its "result will be, not
competition, but a sort of parasitic free-riding, leaving
TELRIC incapable of stimulating the facilities-based competi-
tion intended by Congress." Id. at 1669. Obviously accept-
ing the ILECs' view that Congress preferred "facilities-based
competition" over "parasitic free-riding," the Court went on
to decide that the FCC could reasonably conclude that

TELRIC would not create the perverse incentives the ILECs
claimed. Id. at 1669-78. See also our opinion in USTA, 290
F.3d at 424-25.

In this case, the FCC has only issued an interim rule while
it further studies the issues to determine what rule will best
promote facilities-based competition. Certainly when com-
bined with the other rationales in this case this constitutes
adequate justification for the rule.

* * *

Finally, CompTel makes two arguments that the safe har-
bor provisions are arbitrary and capricious. First, it says
that CLECs don't have the information needed to comply
with them, and that the difficulties of obtaining such informa-
tion will in most cases outweigh the benefits of the EELs.
Second, it argues that the commingling restrictions will deny
its members a substantial market benefit of the EELs and,
like the information requirements, are unnecessary.

Expressed in its most plausible form, CompTel's argument
about the safe harbors' information demands--going simply
to the usage patterns for the facilities--is that the data are
not information that the companies normally obtain, that
obtaining the information and insuring its accuracy would be
difficult and costly, and that in most instances the costs of
complying outweigh the benefits of the EELs.

The difficulty with this argument is that it suggests no
alternative way for ensuring that EELs are only provided
where they are used for "a significant amount of local ex-
change service." Thus, if we were to find that the safe
harbor provisions were too demanding on carriers, we would
essentially be deciding that the FCC simply could not imple-
ment its use restriction because it is not administratively
feasible. But it is plain that supplying the information is
feasible, as the FCC has produced evidence that some carri-
ers are taking advantage of the safe harbors.

CompTel's second target, the Commission's anti-
commingling rule, essentially "does not allow loop-transport

combinations [taken as UNEs] to be connected to the incum-
bent LEC's tariffed services." Clarification, 15 FCC Rcd
9587 at p 22. CompTel and intervenors argue that it is much
more cost effective to use the same transport facility for both
local and long distance than to have two separate facilities,
each carrying a smaller amount of traffic. They further
argue that there is no reason not to allow commingling, as it
is impossible for parties to use commingling to eviscerate the
local use requirement. The FCC, on the contrary, argues
that a restriction against commingling is the only way to
prevent carriers from using these units "solely or primarily to
bypass special access services." Id. at p 28. We find that
CompTel has not met its burden of showing that the restric-
tion is arbitrary and capricious.

One of the difficulties of this question is the way in which it
is raised and addressed in the briefs. In their opening briefs
both CompTel and intervenors argued that the restriction on
commingling was oppressive, and they stated in a cursory
manner (CompTel devoting all of one page to the issue) that
it was not needed to carry out the FCC's goal of preventing
special access bypass. The FCC responded in an equally
cursory way, saying that allowing commingling would allow
carriers to avoid the requirement that each customer be
provided a significant amount of local exchange service. In
their reply briefs, both petitioner and intervenors explained in
more detail exactly why allowing commingling would not
result in "gaming" of the system. As we explain below, we
find in the record indications of why the Commission might
have fears about commingling--even under the conditions
suggested by the petitioner and intervenors. The FCC did
not raise these reasons in its brief, but we cannot fault it for
this omission given the sketchy character of CompTel's and
the intervenors' initial arguments. "[T]he Commission cannot
be asked to make silk purse responses to sow's ear argu-
ments." City of Vernon v. FERC, 845 F.2d 1042, 1047 (D.C.
Cir. 1988); see also McBride v. Merrell Dow and Pharms.,
Inc., 800 F.2d 1208, 1210 (D.C. Cir. 1986) ("We generally will
not entertain arguments omitted from an appellant's opening
brief and raised initially in his reply brief.")

 There are, as we said above, two more complex reasons
why gaming might occur. The first appears to be that
commingling will allow the entire base of the loop or "channel
termination" portion of special access circuits to be converted
into unbundled loops. The reason is that there are no use
restrictions on unbundled loops, and therefore allowing loops
to be freely connected to special access services would allow
loops that provide no local services to be unbundled and then
merely attached to special access transports. See May 11,
2000 letter from MCIWorldCom to FCC at pp. 2-3 ("World-
Com Letter"), Joint Appendix ("J.A.") at 418-19. The second
concern appears to depend on possible erosion of the line
between UNEs and certain non-UNE capabilities that an
ILEC, seeking authority to offer long distance service in the
region where it provides local services, is required to offer
under the so-called "competitive checklist." See 47 U.S.C.
s 271(c)(2)(B); UNE Remand Order, 15 FCC Rcd 3696 at
p 468; WorldCom Letter at 3-5, J.A. at 419-21. The idea is
evidently that through the interaction between s 251 and
s 271, free "mixing and matching" in the present context
would lead ultimately to CLECs' securing UNE rates for
these competitive checklist capabilities even when the Com-
mission had found that lack of the capabilities would not meet
the "impair" standard for UNEs under s 251(d)(2). World-
Com Letter at 3-5, J.A. 419-21.

As we have said, the FCC did not present this argument or
point to a place in the record where it had made it. We know
of it from a WorldCom letter to the FCC articulating it and a
possible solution that WorldCom said would still allow com-
mingling in the case at hand. See WorldCom Letter at 2-5,
J.A. 418-21. Because neither CompTel nor intervenors dealt
with these more difficult questions in their briefs, we are in
no position to assess the feasibility of the solution, or to
decide whether the FCC might have solved the problem in a
different and less burdensome way. But on the present
record we are plainly unable to say that the restriction on
commingling is arbitrary and capricious.

The intervenors raise a third issue (collocation) regarding
the safe harbor provisions, but since this was not raised by

the principal parties, the intervenors are procedurally barred
from arguing it. See United States Tel. Ass'n v. Fed. Com-
munications Comm'n, 188 F.3d 521 (D.C. Cir. 1999).

For the reasons stated above, the petitions for review are

Denied.