FCC Record, Volume 2, No. 1, Pages 1 to 409, January 5 - January 16, 1987 Page: 381

                                
F aI  C m m i  II C I   R   F   87..9

Before the
Federal Communications Commission
Washington, D.C. 20554
CC Docket No. 87-2
In the Matter of
Amendment and Clarification of Part 69
Rules Governing the National Exchange
Carrier Association
MEMORANDUM OPINION AND ORDER
AND
NOTICE OF PROPOSED RULE MAKING

Adopted: January 6, 1987;

Released: January 16, 1987

By the Commission:
I. BACKGROUND
1. On January 24, 1986, the Illinois Commerce Commission,
the Massachusetts Department of Public Utilities,
the Connecticut Public Utilities Control Authority, the
Vermont Public Service Board, the New Hampshire Public
Utilities Commission, and the Maine Public Utilities
Commission ("petitioners") filed a petition seeking clarification
of our rules governing the National Exchange
Carrier Association ("NECA") and an inquiry into
NECA's operations ("petition"). On January 31, 1986, we
released a public notice requesting comments on the
petition.'
2. NECA was created in response to the requirement of
this Commission that an association be established to
facilitate the post-divestiture receipt by exchange carriers
of compensation for the use of exchange carrier resources
in originating and terminating interstate telecommunications
services.2 At that time, we contemplated the possibility
that this association "might in the future perform
other functions for its members."3 Petitioners here request
that we: (1) clarify the extent to which NECA is
permitted to participate in FCC proceedings; (2)
"investigate the increasing budgeting expenditures of
NECA, and the accountability and control for its budget";
(3) initiate an inquiry into the "continuation of NECA,"
its future role, and whether NECA should be "sunset";
and (4) initiate an inquiry into the staffing of NECA.4
3. In this Memorandum Opinion and Order and Notice
of Proposed Rule making, we clarify the extent to which
NECA may participate in FCC proceedings. We decline
to initiate a special inquiry into NECA's budgetary expenditures.
its future role, or its staffing. We do, however,
propose to require changes in the apportionment of
NECA expenses in order to produce a fairer and more
accurate assessment that will reflect present and future
NECA activities, including expenses incurred as a result
of its participation in FCC proceedings. We also propose
to require that certain additional data and information
relating to NECA's operations be provided with NECA
tariff filings so that interested parties may be better able to
comment on NECA's expenditures during the review of
future NECA tariff filings.

II. ISSUES
A. NECA Participatick 1: FC
Proceedings.
1. The Petition
4. The petitioners request first that we clarify the scope
of permissible activity by NECA in Commission proceedings.5
Specifically, the petitioners have asked that we
identify "what proceedings NECA may participate in. the
scope of any participation, and whether NECA is prohibited
from engaging in any activity not directly related to
the preparation and filing of access charges for its members."6
We have also been asked to "clarify whether
NECA's participation is limited to comment on the mechanics
of the tariffs and revenue distribution."7
5. To illustrate the need for clarification, the petitioners
contend that NECA has inappropriately filed comments
on requests by local exchange carriers for approval of
alternative tariffs or for waivers of our rules concerning
access charges. They cite NECA's petitions to reject the
"Project Equal" tariffs filed by New York Telephone and
New England Telephone and NECA's comments on waiver
petitions filed by US West, Bell Atlantic, Pacific Bell,
and New England Telephone.8 The petitioners also state
that "Jlin addition to these specific requests for waivers of
Part 69 of the FCC's rules the FCC will also have to
consider in the near future the continuation of revenue
pooling and geographic averaging of rates. These are
critical issues affecting the states and the LECs. The FCC
should clarify whether NECA is allowed to influence
these determinations directly or indirectly."9
2. Comments
6. Several commenters support the position taken by
petitioners and urge us to clarify that our present rules
permit only limited participation by NECA in our proceedings.
Some commenters, for instance, construe our
access charge rules as confining NECA to commenting
upon ministerial matters directly related to the filing of
access charge tariffs and the distribution of revenues under
those tariffs.10 Similarly. several commenters urge that
NECA be permitted to comment in FCC proceedings, but
not with respect to "policy" matters.1 Furthermore, some
commenters contend that, under applicable First Amendment
precedent, NECA should be precluded from taking
positions in proceedings contrary to the expressed interests
of any of its members because exchange carrier membership
in NECA is compulsory and each exchange
carrier must involuntarily contribute to the expression of
NECA's views.12
7. A number of other commenters, however, disagree
with petitioners and argue that restrictions on NECA's
ability to express its views would not be permissible or
appropriate. Some invoke the First Amendment for the
proposition that NECA has the right to express its views
freely without restrictions imposed by this Commission.13
Some contend that we should not impose restrictions as a
matter of policy because NECA possesses unique expertise,
experience, information, or perspective that should
be available to this Commission 'in making decisions that
are national in scope.14 Additionally, some commenters
contend that drawing an exclusionary boundary based
upon a "policy/non-policy" dichotomy would be unworkable
administratively because such determinations are
frequently analogous to mixed questions of law and fact