47 U.S.C. § 272

Separate affiliate; safeguards

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(a) Separate affiliate required for competitive activities(1) In generalA Bell operating company (including any affiliate) which is a local exchange carrier that is subject to the requirements of section 251(c) of this title may not provide any service described in paragraph (2) unless it provides that service through one or more affiliates that—(A) are separate from any operating company entity that is subject to the requirements of section 251(c) of this title; and(B) meet the requirements of subsection (b).(2) Services for which a separate affiliate is requiredThe services for which a separate affiliate is required by paragraph (1) are:(A) Manufacturing activities (as defined in section 273(h) of this title).(B) Origination of interLATA telecommunications services, other than—(i) incidental interLATA services described in paragraphs (1), (2), (3), (5), and (6) of section 271(g) of this title;(ii) out-of-region services described in section 271(b)(2) of this title; or(iii) previously authorized activities described in section 271(f) of this title.(C) InterLATA information services, other than electronic publishing (as defined in section 274(h) of this title) and alarm monitoring services (as defined in section 275(e) of this title).(b) Structural and transactional requirementsThe separate affiliate required by this section—(1) shall operate independently from the Bell operating company;(2) shall maintain books, records, and accounts in the manner prescribed by the Commission which shall be separate from the books, records, and accounts maintained by the Bell operating company of which it is an affiliate;(3) shall have separate officers, directors, and employees from the Bell operating company of which it is an affiliate;(4) may not obtain credit under any arrangement that would permit a creditor, upon default, to have recourse to the assets of the Bell operating company; and(5) shall conduct all transactions with the Bell operating company of which it is an affiliate on an arm’s length basis with any such transactions reduced to writing and available for public inspection.(c) Nondiscrimination safeguardsIn its dealings with its affiliate described in subsection (a), a Bell operating company—(1) may not discriminate between that company or affiliate and any other entity in the provision or procurement of goods, services, facilities, and information, or in the establishment of standards; and(2) shall account for all transactions with an affiliate described in subsection (a) in accordance with accounting principles designated or approved by the Commission.(d) Biennial audit(1) General requirement

A company required to operate a separate affiliate under this section shall obtain and pay for a joint Federal/State audit every 2 years conducted by an independent auditor to determine whether such company has complied with this section and the regulations promulgated under this section, and particularly whether such company has complied with the separate accounting requirements under subsection (b).

(2) Results submitted to Commission; State commissions

The auditor described in paragraph (1) shall submit the results of the audit to the Commission and to the State commission of each State in which the company audited provides service, which shall make such results available for public inspection. Any party may submit comments on the final audit report.

(3) Access to documentsFor purposes of conducting audits and reviews under this subsection—(A) the independent auditor, the Commission, and the State commission shall have access to the financial accounts and records of each company and of its affiliates necessary to verify transactions conducted with that company that are relevant to the specific activities permitted under this section and that are necessary for the regulation of rates;(B) the Commission and the State commission shall have access to the working papers and supporting materials of any auditor who performs an audit under this section; and(C) the State commission shall implement appropriate procedures to ensure the protection of any proprietary information submitted to it under this section.(e) Fulfillment of certain requestsA Bell operating company and an affiliate that is subject to the requirements of section 251(c) of this title—(1) shall fulfill any requests from an unaffiliated entity for telephone exchange service and exchange access within a period no longer than the period in which it provides such telephone exchange service and exchange access to itself or to its affiliates;(2) shall not provide any facilities, services, or information concerning its provision of exchange access to the affiliate described in subsection (a) unless such facilities, services, or information are made available to other providers of interLATA services in that market on the same terms and conditions;(3) shall charge the affiliate described in subsection (a), or impute to itself (if using the access for its provision of its own services), an amount for access to its telephone exchange service and exchange access that is no less than the amount charged to any unaffiliated interexchange carriers for such service; and(4) may provide any interLATA or intraLATA facilities or services to its interLATA affiliate if such services or facilities are made available to all carriers at the same rates and on the same terms and conditions, and so long as the costs are appropriately allocated.(f) Sunset(1) Manufacturing and long distance

The provisions of this section (other than subsection (e)) shall cease to apply with respect to the manufacturing activities or the interLATA telecommunications services of a Bell operating company 3 years after the date such Bell operating company or any Bell operating company affiliate is authorized to provide interLATA telecommunications services under section 271(d) of this title, unless the Commission extends such 3-year period by rule or order.

(2) InterLATA information services

The provisions of this section (other than subsection (e)) shall cease to apply with respect to the interLATA information services of a Bell operating company 4 years after February 8, 1996, unless the Commission extends such 4-year period by rule or order.

(3) Preservation of existing authority

Nothing in this subsection shall be construed to limit the authority of the Commission under any other section of this chapter to prescribe safeguards consistent with the public interest, convenience, and necessity.

(g) Joint marketing(1) Affiliate sales of telephone exchange services

A Bell operating company affiliate required by this section may not market or sell telephone exchange services provided by the Bell operating company unless that company permits other entities offering the same or similar service to market and sell its telephone exchange services.

(2) Bell operating company sales of affiliate services

A Bell operating company may not market or sell interLATA service provided by an affiliate required by this section within any of its in-region States until such company is authorized to provide interLATA services in such State under section 271(d) of this title.

(3) Rule of construction

The joint marketing and sale of services permitted under this subsection shall not be considered to violate the nondiscrimination provisions of subsection (c).

(h) Transition

With respect to any activity in which a Bell operating company is engaged on February 8, 1996, such company shall have one year from February 8, 1996, to comply with the requirements of this section.

(June 19, 1934, ch. 652, title II, § 272, as added Pub. L. 104–104, title I, § 151(a), Feb. 8, 1996, 110 Stat. 92.)Editorial NotesReferences in Text

This chapter, referred to in subsec. (f)(3), was in the original “this Act”, meaning act June 19, 1934, ch. 652, 48 Stat. 1064, known as the Communications Act of 1934, which is classified principally to this chapter. For complete classification of this Act to the Code, see section 609 of this title and Tables.

Notes of Decisions

Cited in 13 cases, 1997–2007 · leading case: At&T Corp. v. Fed. Commc'ns Comm'n, 369 F.3d 554 (D.C. Cir. 2004).

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At&T Corp. v. Fed. Commc'ns Comm'n, 369 F.3d 554 (D.C. Cir. 2004). · cites it 14× “47 U.S.C. § 272 . The Act makes it clear, however, that the § 272 safeguards “shall cease to apply .”

Ass'n of Commc'ns Enter. v. Fed. Commc'ns Comm'n, 235 F.3d 662 (D.C. Cir. 2001). · cites it 2× “The Commission looks to 47 U.S.C. § 272 , which allows ILECs to provide certain maintenance and long-distance services — but not advanced services' — 'through a separate affiliate.”

At&T Corp. v. Fed. Commc'ns Comm'n, 220 F.3d 607 (D.C. Cir. 2000). “See 47 U.S.C. § 272 (c)(1). Section 272(g)(2), however, expressly permits BOCs to engage in joint marketing.”

Sprint Nextel Corp. v. Fed. Commc'ns Comm'n, 508 F.3d 1129 (D.C. Cir. 2007). “” 47 U.S.C. § 272 (f)(1). Three years after Verizon was authorized to provide long-distance services, the Commission issued a public notice announcing that the safeguards had ceased to apply pursuant to § 272.”

SBC Commc'ns Inc. v. Fed. Commc'ns Comm'n, 138 F.3d 410 (D.C. Cir. 1998). “§ 271 (c)(2)(B), designed to ensure that the BOC is providing access and interconnection of a particular sort; (2) the BOC’s requested authorization will be carried out by a separate subsidiary and otherwise in accordance with 47 U.S.C.A. § 272 ; and (3) granting the application…”

Bell Atl.-Pennsylvania, Inc. v. Pennsylvania Pub. Util. Comm'n, 763 A.2d 440 (Pa. Commw. Ct. 2000). · cites it 2× “Bell also contends that the federal law contemplates separate affiliates being required only as to equipment manufacturing and certain long distance and information services, 47 U.S.C. §§ 272 (a)(2), 274, and hence that the federal law, by omission, negates separation on a…”

Bell Atl. Tel. Companies v. Fed. Commc'ns Comm'n, 131 F.3d 1044 (D.C. Cir. 1997). · cites it 2× “EDWARDS, Chief Judge: This case arises from a challenge to an Order of the Federal Communications Commission (“Commission”) construing a poorly drafted section of the Telecommunications Act of 1996, enacted as 47 U.S.C. § 272 . Under the statute, there are two potentially…”

Bellsouth Telecomm., Inc. v. Fed. Commc'ns Comm'n, 469 F.3d 1052 (D.C. Cir. 2006). · cites it 3× “In its complaint, AT & T alleged, among other things, that BellSouth had violated 47 U.S.C. §§ 272 (c)(1) and 272(e)(3). Section 272(c)(1) provides that Bell Operating Companies “may not discriminate between [its] affiliate and any other entity in the provision or procurement of…”

GTE Midwest, Inc. v. Fed. Commc'ns Comm'n, 233 F.3d 341 (6th Cir. 2000). “See 47 U.S.C. § 272 (a)(2)(B)®. Second, section 601(a)(3) of the Act released AT & T from the requirement that it provide its cellular service through a separate affiliate.”

SBC Commc'ns, Inc. v. Fed. Commc'ns Comm'n, 154 F.3d 226 (5th Cir. 1998). · cites it 2× “47 U.S.C. §§ 272 (f)(1) & 273(a). Finally, under §§ 274 & 275, the BOCs may not provide electronic publishing or alarm monitoring services until February 8, 2001, unless they do so by way of a separate affiliate or joint venture and, in the case of alarm monitoring, only if they…”

Bellsouth BSE v. Tennessee Reg. Auth. (Tenn. Ct. App. 2003). · cites it 5× “4 Most relevant to our analysis of the issues herein, because of the parties’ references to and arguments about “Section 272 affiliates” is the requirement of 47 U.S.C. § 272 , which the FCC has described as follows: Section 272(a) provides that a BOC (including any affiliate)…”

Global Naps, Inc. v. New England Tel. & Tel. Co., 156 F. Supp. 2d 72 (D. Mass. 2001). “§ 271 , with a later provision addressing the provision by BOCs of interLATA services to their affiliates and to other carriers, 47 U.S.C. § 272 (e)(4). In the MATTER OF IMPLEMENTATION OF THE NON-ACCOUNTING SAFEGUARDS OF SECTIONS 271 AND 272 OF THE COMMUNICATIONS ACT OF 1934, AS…”

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