883 F.2d 104 | D.C. Cir. | 1989
The Ameritech Operating Companies (“Ameritech” or “petitioners”), a commonly-owned association of five Bell Operating Companies (“BOCs”) spun off pursuant to a settlement of an antitrust suit brought by the government against AT & T, see United States v. AT & T, 552 F.Supp. 131 (D.D.C.1982), affd sub nom. Maryland v. United States, 460 U.S. 1001, 103 S.Ct. 1240, 75 L.Ed.2d 472 (1983), seek review of an order of the Federal Communications Commission. The order conditions the BOCs’ marketing of customer premises equipment (“CPE”) (other than through entirely separate CPE subsidiaries) on their agreement to provide “independent CPE vendors ... with a meaningful opportunity to market Centrex and other BOC network services through sales agency plans or other functionally equivalent means.” Furnishing of Customer Premises Equipment by the Bell Operating Companies and the Independent Telephone Companies, 2 F.C.C. Red 143, 156 (1987) (“BOC Structural Relief Order”). Ameritech contends that the Commission has imposed these conditions arbitrarily and in contravention of statutory provisions reserving to the states the regulation of intrastate communications services. We deny the petitions.
I.
A.
Until 1980, the provision of most CPE by common carriers was subjected to rate regulation under Title II of the Communications Act of 1934, 47 U.S.C. §§ 201-224 (1982). In that year, however, the Commission instituted a major restructuring of its Title II regulatory program, removing from Title II coverage the provision of CPE and so-called “enhanced services” and reserving Title II regulation solely for the offering of “basic” transmission service.
The Commission, however, conditioned the opportunity for common carriers to provide CPE and enhanced services on the carriers’ agreement to keep separate accounts for their regulated and unregulated activities. Id. at 475-76. Special treatment was accorded AT & T and its then wholly-owned BOCs; because of their monopoly over access to telecommunications networks and the risk that they would use their monopoly power to gain leverage in the competitive CPE market, the Commission required these companies to form separate subsidiaries to market CPE and enhanced services. Id. at 477. The Commission, aware that these structural separation requirements were not without efficiency costs, believed that the benefits of separation in terms of protecting the health of the competitive CPE market would outweigh whatever costs separation entailed. After the breakup of AT & T, the Commission imposed substantially the same structural separation requirements on the divested BOCs, based on the notion that their near-monopoly power in offering network access would give them an unfair advantage in the markets for CPE and enhanced services. See Policy and Rules Concerning the Furnishing of Customer Premises Equipment, Enhanced Services and Cellular Communications Service by the Bell Operating Companies, 95 F.C.C.2d 1117 (1983) (“BOC Separate Subsidiary Order”), aff'd sub nom. Illinois Bell Telephone Co. v. FCC, 740 F.2d 465 (7th Cir. 1984), recon. denied, 49 Fed.Reg. 26,056 (June 26, 1984), 56 Rad.Reg.2d (P & F) 581 (‘BOC Separate Subsidiary Reconsideration ”), affd sub nom. North American Telecommunications Association v. FCC, 772 F.2d 1282 (7th Cir.1985). The Commission’s structural separation orders were affirmed in all respects on direct review. See Computer & Communications Industry Ass’n v. FCC, 693 F.2d 198 (D.C.Cir.1982) (affirming Computer II), cert. denied, 461 U.S. 938, 103 S.Ct. 2109, 77 L.Ed.2d 313; Illinois Bell Telephone Co. v. FCC, 740 F.2d 465 (7th Cir.1984) (affirming BOC Separate Subsidiary Order), North American Telecommunications Ass’n v. FCC, 772 F.2d 1282 (7th Cir.1985) (affirming BOC Separate Subsidiary Reconsideration ).
Soon after “modified” separation requirements were imposed on the divested BOCs, a number of the BOCs, including Ameritech, petitioned the Commission to
The Commission found joint marketing to be “in the public interest,” id. at 945, but recognized the “potential for anti-competitive abuse and cross-subsidy” inherent in such arrangements, id. at 953, including the possibility that the BOCs would use commission payments to their CPE subsidiaries as a means of “shift[ing] costs from unregulated activities to regulated services.” Id. at 955. To ameliorate the FCC’s concerns in this respect, Ameritech proposed to enter into “substantially similar marketing [and commission] agreements with a ‘reasonably manageable’ number of unaffiliated CPE vendors.” Id. at 947 (quoting Ameritech petition). The Commission ultimately approved those arrangements, subject, inter alia, to the following conditions:
[E]ach BOC must allow a reasonable number of bona fide third party vendors to participate fully in these [sales agency marketing] plans, on a nondiscriminatory basis. Other vendors must be offered the opportunity to earn the same percentage commissions as the subsidiaries, and on the same terms and conditions.
Id. at 956 (footnote omitted). “Sales agency” arrangements with independent CPE vendors were thus introduced into the communications marketplace.
B.
This dispute grows out of the Commission’s eventual disenchantment with, and dismantling of, structural separation requirements. AT & T was the first to benefit from the FCC’s new approach. In view of fundamental changes in the telecommunications marketplace, such as the elimination of AT & T’s monopoly control of local exchange facilities, the decline in AT & T’s long-distance market share, and the birth of vigorous competition in the CPE marketplace, the Commission concluded in 1985 that the “structural separation requirements for AT & T’s CPE operations no longer provide benefits to the public that exceed their costs[.]” Furnishing of Customer Premises Equipment and Enhanced Services by American Telephone and Telegraph Co., 102 F.C.C.2d, 627, 672 (1985) (“AT & T Structural Relief Order”), recon., 104 F.C.C.2d 739 (1986). Structural separation requirements were therefore eliminated for AT & T and replaced by a series of “nonstructural safeguards,” one of which required AT & T to establish an accounting procedure (subject to periodic independent audits) by which “joint and common costs between its regulated and unregulated operations” would be divided and assigned to those respective operations. Id. at 699; see id. at 681-99. These safeguards were imposed chiefly out of recognition that AT & T remained a “dominant carrier” in the industry, and retained “some ability to act anticompetitively in its CPE activities.” Id. at 682.
Soon thereafter, Ameritech and others petitioned for the removal of structural separation requirements on the BOCs as well, and the Commission responded by instituting a rulemaking proposing to eliminate structural separation in favor of -unspecified nonstructural safeguards. After receiving comments, the Commission concluded, as it had done earlier with respect to AT & T, that “the inefficiencies and other costs to the public associated with [ ] structural separation requirements substantially outweigh the corresponding ben
Ameriteeh, the only BOC parent seeking review of this order, argues that the economic and legal basis for imposing sales agency requirements has eroded, and in any event that the function performed by sales agency has been entirely supplanted by requiring the BOCs to observe the Joint Cost Order. Petitioners therefore contend that the sales agency requirement imposed as a condition to structural relief is arbitrary and capricious. Alternatively, it is contended that the Commission is without authority under the Communications Act to regulate the marketing of such purely intrastate services as Centrex. We take up the administrative law challenge first because we think its discussion illuminates the jurisdictional question.
II.
We must accord the FCC substantial deference in testing the rationality of its imposition of sales agency requirements on the BOCs as a condition to relief from structural separation. See Western Union Int'l, Inc. v. FCC, 804 F.2d 1280, 1292
Petitioners devote a substantial portion of their principal brief to the question of whether there exists any need at all for sales agency programs in the post-Joint Cost Order environment. Petitioners deny that there is any such enduring need, citing the Commission’s own conclusion in the BOC Structural Relief Order that the Joint Cost proceeding “will enable [the] Commission to detect and remedy any attempts by the BOCs to shift, costs properly attributable to unregulated operations to their regulated activities through the improper allocation of joint and common costs or the improper pricing of transactions between their regulated operations and nonregulated affiliates____” BOC Structural Relief Order, 2 F.C.C.Rcd at 147. These joint cost rules have since been completed, fulfilling the Commission’s original design. The FCC, moreover, does not dispute that the BOCs’ service-specific sales commissions on the one hand, and the cost allocations developed in the Joint Cost proceeding on the other, cannot meaningfully be compared given the absence of a common base between them. Ameritech thus disputes as disingenuous the Commission’s expressed belief that sales agency commissions can serve as a “useful benchmark for assessing the reasonableness of a BOC’s allocation of marketing and related expenses of providing CPE ... on an integrated basis.” BOC Structural Relief Order, 2 F.C.C.Rcd at 156.
The Commission’s “benchmark” rationale does appear thin. The FCC opinions provide no explanation as to the mechanics of comparing two sets of data — service-specific sales commissions and aggregate, non-service-specific marketing costs — asserted by Ameritech to be incomparable by their nature, and the FCC’s brief, as we have said, does not assert their comparability either. “[T]he Commission must do more than simply ignore comments that challenge its assumptions and must come forward with some explanation that its view is based on some reasonable analysis.” ALLTEL Corp. v. FCC, 838 F.2d 551, 558 (D.C.Cir.1988). While we might conceive of ways of using the underlying data in a fashion that would permit a representative comparison, this task is the Commission’s and not the court’s. See Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983). Accordingly, were the “benchmark” theory the only basis on which the Commission rested its decision to impose sales agency requirements (or their functional equivalent) as a condition to structural relief, Ameritech’s challenge to the rationality vel non of sales agency would be troublesome.
This is not the case. In both its original opinion and its opinion on reconsideration, the Commission advanced a second basis for its sales agency requirement that is both rational and adequately explained— that BOC sales agency programs will help ensure vigorous and fair competition in the all-important CPE marketplace. See BOC Structural Relief Order, 2 F.C.C.Rcd at 156; BOC Structural Relief Reconsideration, 3 F.C.C.Rcd at 27. And this rationale is quite distinct from concerns about cross-subsidization of unregulated with regulated activities. Because evidence presented to the FCC indicated that the BOCs continue to exercise monopoly control over local “bottleneck facilities,” 2 F.C.C.Rcd at 155, the Commission believed that “the BOCs’ unseparated provision of CPE raises greater anticompetitive concerns than such provision by AT & T.” Id. at 156. Retention of a sales agency requirement, in the Commission’s view, would help address these concerns by, among other things, leveling the competitive playing field:
First, this requirement will enable independent CPE vendors an opportunity to provide customers with an integrated CPE/network services package on an ef*38 ficient basis. Second, the ability of independent CPE vendors to offer such ‘one-stop shopping’ will provide competition for the BOC’s own CPE operations and/or the BOCs’ network sales departments. Third, independent CPE vendors might provide integrated services to CPE customers that the BOCs choose not to serve.
2 F.C.C.Rcd at 156; see also 3 F.C.C.Rcd at 27.
The economic basis for imposing the sales agency requirement seems to us to be indisputable. Because telecommunications consumers typically demand CPE and network services at the same time (indeed, the BOCs emphasized this marketing reality in support of their petition for structural relief, see BOC Structural Relief Order, 2 F.C.C.Rcd at 156), any firm that hopes to compete in the CPE market must combine its equipment offerings with network services in a marketable package. But the addition of network services — such as Centrex, for instance
By requiring the BOCs to place a reasonable number of independent CPE vendors on a comparable footing to that enjoyed by the BOCs in the CPE market, the Commission believes that competition in the CPE marketplace will be enhanced. We think this economic view reasonable and thus entitled to deference. See Western Union Int’l, Inc., 804 F.2d at 1292. To be sure, as petitioners insist, CPE vendors are entitled — apart from participation in sales agency programs — to “act as agents for their customers [and] order basic services to meet their customers’ [continued CPE/network service] needs ...,” Sales Agency Order, 98 F.C.C.2d at 952, and to that extent they are not disabled from offering their CPE products in conjunction with network services in the same fashion the BOCs do. Legally qualifying them to sell, however, is not equivalent to providing them with a relatively equal economic opportunity to compete, and petitioners ignore this crucial distinction.
Paradoxically, petitioners argue that the limited scope of the sales agency plans approved by the Commission staff to date suggests the ineffectiveness — and thus the irrationality — of the sales agency requirement. Petitioners point to a recent order by the Common Carrier Bureau approving sales agency programs that include only small numbers of independent CPE vendors and cover only a limited range of network services, chiefly Centrex. See Furnishing of Bell Operating Telephone Companies and the Independent Telephone Companies, 3 F.C.C.Rcd 412, 421 (1987). We are told that if the FCC had truly been inspired to impose sales agency requirements by the threat of unfair BOC competition in the CPE marketplace, the FCC would not have “refused to direct the
The Commission’s order admittedly provides little guidance as to the number of independent vendors or the range of network services required to be included in BOC joint marketing plans. It states simply that the plans submitted must provide “independent CPE vendors ... with a meaningful opportunity to market Centrex and other BOC network services____” BOC Structural Relief Order, 2 F.C.C.Rcd at 156 (emphasis added). But the Commission has not yet had an opportunity to consider objections raised as to the scope of the programs approved by the Bureau, and thus we think it premature to consider that question. We simply do not know whether the Commission will, contrary to the Common Carrier Bureau, insist that sales agency agreements include compensation for provision of network services that extend beyond Centrex. Indeed, intervenor Independent Data Communications Manufacturers Association has argued that the Commission, in order to render those agreements meaningful, should overrule the Bureau. That issue, it seems quite clear, is not yet properly before us. See, e.g., American Fed’n of Gov’t Employees v. Homer, 821 F.2d 761, 766-68 (D.C.Cir. 1987). We may now consider only petitioners’ challenge to the FCC order, and that order speaks of Centrex and other BOC network services.
Petitioners do make one point about the scope of the BOC Structural Relief Order that is ripe for review — that it was irrational and unfair for the Commission to impose sales agency requirements, whatever their scope, on the BOCs but not on AT & T and the independent telephone companies. We think the Commission's basis for distinguishing AT & T — that it no longer controls local “bottleneck” facilities — was adequately explained, see BOC Structural Relief Order, 2 F.C.C.Rcd at 155-56, but the Commission’s justification for more lenient treatment for the independents is somewhat cryptic. Like the BOCs, General Telephone & Electronics Co. (“GTE”) and the other independents do control such “bottleneck” facilities in certain localities, making the risk of anticompetitive activity by those companies in the CPE market quite real. The Commission explains that the independents will be unable to discourage entry into the CPE market by independent CPE vendors “because each of the carrier’s individual service areas is too small for possible discriminatory conduct.” Id. at 158. It is not obvious that this observation is directly germane to what we understand to be the Commission’s primary rationale for imposing sales agency requirements on the BOCs — to place independent CPE vendors on a competitive footing comparable to that enjoyed by the “bottleneck” carriers within their geographic monopolies. The Commission’s assurance that “customers of [the independents], unlike customers of the BOCs with large service areas, will have readily available alternative CPE sources nearby and within the [independents’] service area[s]” ostensibly is in tension with the Commission’s thesis underlying its imposition of sales agency requirements on the BOCs. For if one accepts this thesis, it is at least arguable that the “alternative CPE sources” doing business in the vicinity of the independents’ service areas would not be able to compete effectively against the independents within those service areas.
The Commission offered a second basis for distinguishing the BOCs and the independents which, although not without its difficulties, is also persuasive. The Commission stated that it had decided to impose sales agency requirements on the BOCs primarily out of concern over competition in the highly lucrative market for business CPE. The only network service specifically identified in the Commission’s order, in fact, was Centrex, a business service. Because the network access monopolies controlled by the independents are predominantly located in rural and suburban areas where business equipment sales are minimal, the Commission thought the case for burdening the independents with sales agency requirements was less compelling. See BOC Structural Relief Order, 2 F.C. C.Rcd at 158. On its face, this observation, unchallenged by petitioners, provides an additional basis for distinguishing between the BOCs and the independents.
We note, finally, that the Commission’s preemption order leaves the states with authority to impose more restrictive nonstructural safeguards on the independents than the Commission has imposed on those companies, provided they “are no more stringent than those [the FCC] developed for the BOCs____” Id. at 162. For those discrete situations which are “believe[d] [to] raise anticompetitive difficulties” within their jurisdictions, states have not been disabled at least from equalizing the regulatory burden of nonstructural safeguards between the BOCs and the independents. See 2 F.C.C.Rcd at 158 n. 250. On balance then, we do not perceive the distinction drawn by the Commission between the BOCs and the independents as arbitrary and capricious.
III.
We turn to the preemption issue. Petitioners dispute the Commission’s authority under the Communications Act to regulate the marketing of what they call purely “intrastate” services such as Centrex. Section 2(b) of the Act, in petitioners’ view, reserves to the states exclusive jurisdiction over “charges, classifications, practices, services, facilities, or regulations for or in connection with intrastate communication service,” 47 U.S.C. § 152(b) (1982), and precludes the Commission from preempting state regulation of the marketing of Centrex. The sales agency requirement, petitioners argue, compels the BOCs to incur incremental marketing costs (through the payment of sales commissions to independent CPE vendors) in connection with the sale of “intrastate” Centrex Services. And because the requirement will surely “af
The resolution of this question is guided in large measure by the Supreme Court’s decision in Louisiana Public Service Comm’n v. FCC, 476 U.S. 355, 106 S.Ct. 1890, 90 L.Ed.2d 369 (1986) (“Louisiana PSC”). In Louisiana PSC, the Supreme Court invalidated an FCC attempt to preempt the states from imposing their own rules governing the calculation of depreciation expense for purposes of intrastate ratemaking. The FCC, in an effort to encourage common carriers to modernize their plant and equipment, had issued a series of orders permitting telephone companies to recover more accurately — and in some cases more rapidly — their investment in communications facilities in interstate ratemaking. In part to prevent frustration of this federal regulatory objective, the FCC preempted the states from imposing, in the course of intrastate ratemaking proceedings, inconsistent “depreciation rate prescriptions that do not, adequately provide for capital recovery in the competitive environment.” Id. at 363, 106 S.Ct. at 1895 (quoting Amendment of Part 31 of the Commission’s Rules and Regulations, 92 F.C.C.2d 864, 876 (1983)). The Court held that section 2(b) “constitute[d] ... a Congressional denial of power to the FCC to require state commissions to follow FCC depreciation practices for intrastate rate-making purposes.” Id. at 374, 106 S.Ct. at 1901. Only “where it [is] not possible to separate the interstate and intrastate components” of the subject matter is the exercise of plenary federal jurisdiction (and preemption of conflicting state regulation) permissible. Id. at 375 n. 4, 106 S.Ct. at 1902 n. 4 (citing North Carolina Utils. Comm’n v. FCC, 537 F.2d 787 (4th Cir.), cert. denied, 429 U.S. 1027, 97 S.Ct. 651, 50 L.Ed.2d 631 (1976), and North Carolina Utils. Comm’n v. FCC, 552 F.2d 1036 (4th Cir.), cert. denied, 434 U.S. 874, 98 S.Ct. 222, 54 L.Ed.2d 154 (1977)). Applying these principles to the case before it, the Court held the FCC’s preemption of state depreciation rules unlawful. In the Court’s view, the jurisdictional “separations process” set forth in the Act, see 47 U.S.C. §§ 221(c), 410(c) (1982), provided a workable mechanism to allocate plant and equipment costs between interstate and intrastate service. Id. at 375.
Ameritech contends that Louisiana PSC insulates from the Commission’s reach services of a purely intrastate character like Centrex. But Centrex is not the sort of exclusively intrastate service that petitioners suggest.
As the FCC concedes, however, the fact that Centrex and like services support interstate as well as intrastate communications does not necessarily authorize preemptive federal regulation of the intrastate aspects of those services. Section 2(b) of the Act, the Supreme Court has held, “fences off from FCC reach or regulation intrastate matters ..., including matters ‘in connection with’ intrastate services.” Louisiana PSC, 476 U.S. at 370, 106 S.Ct. at 1899. But, as the parties agree, “where it [is] not possible to separate the interstate and the intrastate components of the [ ] FCC regulation” involved,
In this case, however, we think the Commission has adequately explained its preemption order. No one questions the legitimacy of the FCC’s stated objective of promoting competition in the CPE market both by proscribing the unfair advantage BOCs might gain in that market through their near-monopoly power in regulated markets and by attempting to minimize the efficiency costs on BOCs of any safeguards imposed. And the package of nonstructural safeguards the Commission has rationally chosen to fulfill this objective — including regulation of the manner in which Centrex and like network services are marketed jointly with CPE — does not appear capable of severance into discrete interstate and intrastate components. Petitioners admit that “the jurisdictional inseverability rationale is valid with respect to the nonstructural safeguards commonly applied to both AT & T and the BOCs.” It is not apparent why the in severability analysis would logically differ with respect to sales agency requirements.
A similar problem confronted the Commission when it asserted exclusive jurisdiction over the terms and conditions under which consumers could connect consumer-provided CPE to the telecommunications network. The Commission had earlier concluded that AT & T’s prohibition of the interconnection of consumer-provided CPE to the telecommunications network was invalid under the Act, see Carterphone v. AT & T, 13 F.C.C.2d 420, recon. denied, 14 F.C.C.2d 571 (1968), Thereafter a conflict between state and federal authorities over interconnection terms surfaced when the North Carolina Utilities Commission proposed to prohibit the connection of customer-provided equipment to any network except those used exclusively for interstate communications. The FCC determined that North Carolina’s proposal and others like it were preempted by federal regulations. The Fourth Circuit upheld the Commission’s jurisdiction over interconnection terms for both interstate and intrastate communications, reasoning that section 2(b) of the Act does not deprive the Commission of control over facilities used interchangeably for intrastate and interstate calls. North Carolina Utils. Comm’n v. FCC, 537 F.2d at 794. See also North Carolina Utils. Comm’n v. FCC, 552 F.2d 1036 (4th Cir.), cert. denied, 434 U.S. 874, 98 S.Ct. 222, 54 L.Ed.2d 154 (1977). As noted above, these decisions were subsequently explained (and implicitly approved) by the Supreme Court in Louisiana PSC, 476 U.S. 355, 375 n. 4, 106 S.Ct. 1890, 1902 n. 4, 90 L.Ed.2d 369, as involving circumstances where “it was not possible to separate the interstate and intrastate components of the asserted FCC regulation."
The Supreme Court’s explanation of the interconnection decisions was, it appears,
We think the Commission legitimately determined that inconsistent state regulation of joint CPE/service marketing would negate the valid federal goals of the order under review. Louisiana PSC, 476 U.S. at 375 n. 4, 106 S.Ct. at 1902 n. 4. Since the intrastate and interstate elements of Centrex and like services cannot be severed into discrete packages so as to permit separate state and federal regulation of the manner in which these services are marketed jointly with CPE, we conclude that the Act permits the Commission to assert plenary jurisdiction over such marketing practices in service of a valid interstate objective, even to the point of preempting conflicting state regulations.
Petitioners complain that the BOCs may be subject to a jurisdictional “whipsaw” if state public utility commissions, which presumably retain control over the recoverability of Centrex sales commissions for intrastate ratemaking purposes, exclude these commissions from the intrastate rate base. See Sales Agency Order, 98 F.C.C. 2d at 956 (“state regulatory commissions [may] prohibit payment of any commissions” for sales of basic services). Assuming arguendo the relevance of this point, we do not understand why the challenged order makes a jurisdictional “whipsaw” any more likely than before. Under the structural separation regime, BOCs had the power to avoid payment of any commissions to independent CPE vendors by declining to pay commissions to their CPE subsidiaries. The BOC Structural Relief Order similarly permits BOCs to avoid the “whipsaw” they fear; implementation of a joint marketing program is simply a precondition to structural relief, and BOCs are entitled to continue to operate their CPE subsidiaries separately and decline to pay commissions at all if they believe state utilities commissions will not recognize the marketing commissions in intrastate ratemaking. We do not find the character of the Commission’s regulatory program to have changed substantially in this respect.
Accordingly, the petitions for review are Denied.
. Basic service provides the simple capability to transmit information over a communications network. It is distinguishable from an "enhanced service,” which
combine[s] basic service with computer processing applications that act on the format, content, code, protocol or similar aspects of the subscriber’s transmitted information, or provide the subscriber additional, different, or restructured information, or involve subscriber interaction with stored information.
Computer II, 77 F.C.C.2d at 387.
. These "joint cost" rules were finalized in 1987. See Separation of Costs of Regulated Telephone Services from Costs of Nonregulated Activities, 2 F.C.C. Red 1298 (1987) ("Joint Cost Order"), recon. 3 F.C.C. Red 6283 (1987), further recon., 53 Fed.Reg. 49, 320 (Dec. 7, 1988), petitions for review pending sub nom. Southwestern Bell Corp. v. FCC, No. 87-1764 (D.C.Cir. filed Dec. 14, 1987); National Tel. Cooperative Ass'n v. FCC, No. 87-1771 (D.C.Cir. filed Dec. 15, 1987). The other nonstructural safeguards more or less commonly imposed on AT & T and the BOCs (1) required the carriers to disclose to the public certain technical information concerning planned changes in network services, in advance of their implementation, that might affect the interconnection of CPE, AT & T Structural Relief Order, 2 F.C.C. Red at 150-51; (2) regulated the carriers' use of "customer proprietary network information," 102 F.C.C.2d at 693-94; 2 F.C.C. Red at 152-53; and (3) prohibited the carriers from discriminating against network customers whose CPE was supplied by independent vendors. 102 F.C.C.2d at 690-91; 2 F.C.C. Red at 155.
. Contemporaneously, the Commission did away with structural separation with respect to the provision of enhanced services by AT & T and the BOCs, and imposed in its stead nonstructural safeguards similar to those under review here. Amendment of Section 64.702 of the Commission's Rules and Regulations, 104 F.C. C.2d 958 (1986), recon., 2 F.C.C. Red 3035 (1987), petition for review pending sub nom. People of the State of California v. FCC, No. 87-7230 (9th Cir. filed May 28, 1987), further recon., 3 F.C.C. Red 1135 (1988), petition for review pending sub nom. Illinois Bell Tel. Co. v. FCC, No. 88-1364 (D.C.Cir. filed May 16, 1988).
. Centrex[] is a tariffed service sold by local phone companies. It offers such telecommunications functions as intercom calling, conference calling, direct inward dialing, and automatically identified outward dialing____ These electronic switching services are performed at the exchange carrier’s central office switch, and have traditionally been offered principally to large organizations and government agencies as an alternative to purchasing or leasing a private branch exchange ("PBX”), which is a smaller switch located on the subscriber’s premises used to provide the same services.
National Ass’n of Regulatory Util. Comm'rs v. FCC, 737 F.2d 1095, 1122 (D.C.Cir.1984).
. The Seventh Circuit Court of Appeals, in its review of the Commission's determination in the BOC Separate Subsidiary Order not to impose structural separation requirements on GTE and the other independents, found a nearly identical Commission rationale "not fully persuasive.” Illinois Bell Tel. Co. v. FCC, 740 F.2d 465, 476 (7th Cir.1984). The court declined to upset the Commission's order, however, believing that the Commission’s rush to impose structural separation requirements on the BOCs was driven by the timing of the AT & T divestiture decree. The court surmised that "[t]he Commission still may order GTE and perhaps others to form separate subsidiaries if they want to continue marketing customer equipment. It just has not got around to that yet, and in the circumstances, it did not have to." Illinois Bell Tel. Co., 740 F.2d at 476.
. The Commission acknowledged that not all of GTE’s service areas are small relative to the BOCs’. In particular, the FCC noted that GTE controls the entire State of Hawaii as well as large urban areas in Tampa and Los Angeles. See BOC Structural Relief Order, 2 F.C.C. Red at 158. Since petitioners did not raise this possible anomaly, we will let it pass.
. Even if Centrex were a purely intrastate service, the FCC might well have authority to preemptively regulate its marketing if — as would appear here — it was typically sold in a package with interstate services. Marketing realities might themselves create inseparability. See infra p. 116.
. Simultaneously with issuing its interim guidance, the Commission designated a Joint Federal-State Board to recommend permanent allocation rules for marketing expenses. See Amendment of Part 67 (New Part 36) of the Commission's Rules and Establishment of a Joint Board, 2 F.C.C. Red at 5353. The Joint Board, we note, seems headed in the direction suggested by the Commission’s previous statements regarding the allocation of Centrex commissions, see, e.g., Sales Agency Reconsideration, 59 Rad. Reg. 2d (P & F) at 319, for it has recently proposed that local exchange carriers be required to assign expenses incurred in marketing services such as Centrex exclusively to the intrastate jurisdiction. See Amendment of Part 36 of the Commission's Rules and Establishment of a Joint Board, 3 F.C.C. Red 2774, 2778 (1988). Nevertheless, this is a recommendation only, and is subject to plenary review before the Commission. See id.
. Petitioners claim that. if Centrex marketing truly involves interstate as well as intrastate activity, the FCC is obliged to assign some portion of the commissions paid by the BOCs to independent vendors to the interstate rate base. They rely on Smith v. Illinois Bell Tel. Co., 282 U.S. 133, 148-51, 51 S.Ct. 65, 68-70, 75 L.Ed. 255 (1930), the landmark case in which the Supreme Court held that maintenance of the proper division of regulatory power between state and federal communications authorities requires estimation of the value of property used to provide intrastate and interstate services, respectively. Id. at 148-51, 51 S.Ct. at 68-70. Such an allocation of exchange plant between intrastate and interstate jurisdictions, according to the Court, ensures the confinement of conflicting regulatory tribunals to their proper spheres. Id. at 148, 51 S.Ct. at 68. We express no view on this perplexing question, leaving it for resolution in ongoing separations proceedings.