August 13, 2020 V IA ECFS Ms. Marlene H. Dortch Secretary Federal - PDF document

KELLEY DRYE & W ARREN LLP A LIMITED LIABILIT Y PARTNER SHIP WASHINGTON HARBOUR, SUITE 400 N E W Y O R K , N Y F A C S I M I L E 3050 K STREET, NW C H I C A G O , I L ( 2 0 2 ) 3 4 2 - 8 4 5 1 WASHINGTON, DC 20007 H O U S T O N , T X w w w . k e l l e y d r y e . c o m L O S A N G E L E S , C A S A N D I E G O , C A ( 2 0 2 ) 3 4 2 - 8 4 0 0 S T E V E N A . A U G U S T I N O P A R S I P P A N Y , N J S T A M F O R D , C T D I R E C T L I N E : ( 2 0 2 ) 3 4 2 - 8 6 1 2 B R U S S E L S , B E L G I U M E MA I L : s a u g u s t i n o @ k e l l e y d r y e . c o m A F F I L I A T E O F F I C E M U M B A I , I N D I A August 13, 2020 V IA ECFS Ms. Marlene H. Dortch Secretary Federal Communications Commission 445 12 th Street, SW Washington, D.C. 20554 Re: Notice of Ex Parte Presentation, XO Communications Services, LLC, Application for Review by XO Communications Services, LLC of Decision of the Wireline Competition Bureau , CC Docket Nos. 96-45 and 97-21, WC Docket No. 06-122 Dear Ms. Dortch: Pursuant to Section 1.1206(b) of the Commission’s Rules, XO Communications Services, LLC (“XOCS”) 1 provides notice that on August 11, 2020, its counsel, Steven A. Augustino of Kelley Drye & Warren, LLC, met via telephone with Preston Wise, Legal Advisor in the office of FCC Chairman Ajit Pai. In addition, Mr. Augustino met in a separate meeting, also via telephone, with Travis Litman, Legal Advisor in the office of FCC Commissioner Jessica Rosenworcel. The meetings concerned a draft order addressing XOCS’ Application for Review of a decision of the Wireline Competition Brueau, which was placed on circulation on July 24, 2020. The following summarizes XOCS’ presentation at each meeting. XOCS argued that the 2017 Private Line Order by the Wireline Competition Bureau should be reversed. XOCS argued that the Private Line Order misinterpreted the 1 After the initial appeal was filed in 2010, XOCS converted its corporate form to a limited liability company (“LLC”). In 2017, Verizon Communications, Inc. acquired the fiber- optic network business of XO Communications, including XOCS. XOCS is now a subsidiary of Verizon Communications. 4831-7680-0455v.1

KELLEY DRYE & WARREN LLP Ms. Marlene H. Dortch August 13, 2020 Page 2 Separations Order 2 establishing the “Ten Percent Rule” and reached a result inconsistent with the Joint Board’s recommended certification-based regime. In the alternative, XOCS argued that, if the Commission does not overturn the Private Line Order , as XOCS requested in its May 1, 2017 application for review, 3 it should follow FCC precedent by granting a retroactive waiver to XOCS or applying the Private Line Order only prospectively. Waiver or prospective relief are appropriate because of the widespread confusion regarding the Ten Percent Rule that preceded the Bureau’s order. We discussed the recent filings by XOCS, including its ex parte letters of June 4, 2019, August 27, 2019 and, most recently, August 11, 2020, all of which were filed in the above- captioned dockets. XOCS argued in the meetings today that it is unreasonable to apply the 2017 Private Line Order ’s standards to XOCS’ actions in 2007. The Bureau’s statements created a new evidentiary standard, one that – not surprisingly – would be virtually impossible to meet with respect to serviced provided a decade or more prior. XOCS explained that the Commission has recently granted retroactive waivers to parties in similar situations, when Commission actions or statements had a hand in confusion about application of Commission rules. 4 XOCS argued that the industry confusion surrounding the Commission’s Ten Percent Rule was as 2 MTS-WATS Market Structure (Jurisdictional Separations for Mixed Use Special Access Lines), 4 FCC Rcd 5660 (1989) (Separations Order); see MTS and WATS Market Structure, Amendment of Part 36 of the Commission’s Rules and Establishment of a Joint Board , 4 FCC Rcd 1352, 1357, ¶ 32 (1989) (Joint Board Recommended Decision). 3 XO Communications Services, LLC Application for Review of Decision of the Wireline Competition Bureau , CC Docket Nos. 96-45, 97-21, WC Docket No. 06-122 (May 1, 2017) (“ Application for Review ”). 4 See Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991; Petitions for Waiver and/or Retroactive Waiver of 47 CFR Section 64.1200(a)(2) Regarding the Commission’s Prior Express Written Consent Requirement , CG Docket No. 02-278, DA 19-562 (rel. June 13, 2019); Application for Review filed by Anda, Inc.; Petitions for Declaratory Ruling, Waiver, and/or Rulemaking Regarding the Commission’s Opt-Out Requirement for Faxes Sent with the Recipient’s Prior Express Permission , CG Docket Nos. 02-278 and 05-338, Order, 29 FCC Rcd 13998, 14000 (2014) (“ Anda Order ”); cf. Request for Review by InterCall, Inc. of Decision of Universal Service Administrator, CC Docket No. 96-45, Order, 23 FCC Rcd 10731, 10731, 10732 (2008) (“InterCall Order”). 4831-7680-0455v.1

KELLEY DRYE & WARREN LLP Ms. Marlene H. Dortch August 13, 2020 Page 3 widespread or more than in these cases. In light of this confusion, a retroactive waiver to XOCS of the private line rule as applied to the services it provided in 2007 is the most just and reasonable resolution of this proceeding. For the reasons discussed above and in XOCS prior submissions, XOCS respectfully requested that the order before the Commission grant a retroactive waiver or prospective relief of the new standards in the Commission’s Private Line Order . Please do not hesitate to contact me with any questions or concerns. Respectfully submitted, Steven A. Augustino Counsel to XO Communications Services, LLC cc: Preston Wise Travis Litman 4831-7680-0455v.1