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Okj4  p(AC&FP=%k&=\  PCJP<0e=.#Ke*f9 xC&X7nC:,\4  pG;P:% ,J:\  P6G;JPH5!,),5\  P6G;,P\{,W80,%BZW*f9 xr G;X\0_=5,%&_*f9 xr G;&X2;( S- 3'3'Standard3'3'Standard266HPLAS5SI.PRSC\ ( L X- #Xj\  P6G;ynXP#V  Federal Communications Commission `(#  FCC 98141 ă ______________________________________________________________________________   #&a\  P6G;u&P#ъ#f\  PCu&P#  S-v3 #C\  P6QɒP#Before the FEDERAL COMMUNICATIONS COMMISSION  yOx} Washington, D.C. 20554 #&S\  P@Qu&P#у  S-X` hp x (#%'0*,.8135@8: yO -  ԍXxComplainants AT&T Corp. and MCI Telecommunications Corporation's Brief in Support of Their Motion for Interim Relief in the Form of a Standstill Order, filed June 15, 1998 ("Motion"). (# The Petitioners ask that we enjoin the  xdefendant Ameritech Corporation (Ameritech) from enrolling additional customers under its "teaming"  xzagreement with Qwest Communications Corporation (Qwest), and refrain from further marketing and  xypromoting of the "CompleteAccess" program under such agreement, pending a final determination by the  xCommission of the lawfulness of that agreement. Petitioners contend that by entering into a "teaming"  xagreement, which has been implemented through the CompleteAccess program, Ameritech is providing"x" 0*&&33#"  xinterLATA services in violation of section 271 of the Communications Act of 1934, as amended (the Act),  S- xjand is in violation of its equal access and nondiscrimination obligations under section 251(g) of the Act.^  yO@-ԍXx47 U.S.C.  251(g), 271. (#^  xyAmeritech opposes Petitioners' motion. As discussed in detail below, we conclude that a standstill order is warranted in this case.  S8- II. BACKGROUND ă  S- pEx` ` 2. Ameritech is a local telephone company that offers local exchange and other  xservices in a fivestate region in the midwest. As a Bell Operating Company (BOC), Ameritech is  xprohibited from providing interLATA service originating in its region under section 271 of the Act and  xis required to provide all interexchange carriers with equal access to its local exchange facilities under  xsection 251(g) of the Act, which continued the equal access and nondiscrimination obligations existing  S - x.on the date before the date of enactment of the Telecommunications Act of 1996 (1996 Act).  X  {O-  ԍXx47 U.S.C.  251(g), 271; United States v. AT&T, 552 F. Supp. 131 (D. D.C. 1982) aff'd sub nom.,  {O-  Maryland v. United States, 460 U.S. 1003 (1983). Specifically, section 251(g) of the Act provides that   "each local exchange carrier, to the extent that it provides wireline services, shall provide exchange access,   Linformation access, and exchange services for such access to interexchange carriers and information services   providers in accordance with the same equal access and nondiscriminatory interconnection restrictions and   Lobligations (including receipt of compensation) that apply to such carrier on the date immediately preceding   kthe date of enactment of the Telecommunications Act of 1996 under any court order, consent decree, or   regulation, order or policy of the Commission, until such restrictions and obligations are explicitly superseded by regulations prescribed by the Commission after such date of enactment."(#ƒ Qwest is a long distance telephone company that offers interexchange service in the United States.  S - px` ` 3. On May 14, 1998, Ameritech and Qwest publicly announced their Complete  xAccess program that offers to "residential and small business customers a combined local and long SX- xdistance package of services from a single source."uX,  yO$-ԍXxMotion, Exhibit 1(Ameritech Press Release of May 14, 1998). (#u Ameritech and Qwest have promoted this offering  xas "a competitively priced package of local and long distance services on one single, convenient bill,  S- xjsupported by a single customer service number."B  {Od-ԍXxId.(#B This package of Ameritech's local and intraLATA toll  xlservices combined with Qwest's interLATA services is offered pursuant to an agreement between  S- xAmeritech and Qwest entered into on May 6, 1998 ("Ameritech/Qwest Agreement").VN  {O -ԍXxSee Motion, Exhibit 18.(#V The agreement  xzpermits Ameritech to market Qwest's interLATA long distance service to potential subscribers either  xzindependently or packaged with Ameritech's services, including local and intraLATA toll services. In  xexchange, Qwest pays to Ameritech an amount set by the agreement for each customer that Qwest  xlacquires through Ameritech's marketing and promotion efforts, as well as for billing and collection"0*$$33D"  S- xservices provided by Ameritech with respect to these customers. A similar agreement was earlier entered  S-into between Qwest and U S West ("U S West/Qwest Agreement").i\  {O@-  ԍXx AT&T Corp. v. U.S. West Communications, Inc., Order Granting Preliminary Injunction, Referring Legality   Issue to FCC, and Staying Proceedings, No. C98634WD, slip op. at 3 (W.D. Wash., June 4, 1998)  {O-("Washington Order"). (#i  S- pRx` ` 4. On May 13, 1998, AT&T and MCI, along with other complainants, filed a lawsuit  xagainst U S West challenging the legality of the U S West/Qwest Agreement under sections 251(g) and  x]271 of the Act in the United States District Court, Western District of Washington at Seattle (the  S- x"Washington District Court").:  {O -ԍxId.: On May 14, 1998, the same day that Ameritech and Qwest announced the  xCompleteAccess program, AT&T and MCI, along with other complainants, filed a lawsuit against  xAmeritech in the United States District Court for the Northern District of Illinois (the "Illinois District  xCourt"), similarly challenging the legality of the Ameritech/Qwest Agreement under sections 251(g) and  Sp-271 of the Act.V Xp~  yO-  AԍXxComplainants in the Illinois District Court proceeding are AT&T, MCI, Association of Local   Telecommunications Services (ALTS), McLeodUSA Telecommunications Services, Inc., Focal Communications Corp., KMC Telecom II, Inc., and NEXTLINK Communications Inc(#V  S - px` ` 5. On June 4, 1998, the Washington District Court issued an order granting a request  xfor preliminary injunction prohibiting any further marketing, promoting, or enrollment of additional  xcustomers under the U S West/Qwest Agreement and referring the questions of the legality of the U S  x.West/Qwest Agreement under sections 251(g) and 271 to this Commission for determination in the first  S - xinstance under the doctrine of primary jurisdiction.W   {O-ԍXxWashington Order at 67.(#W The Washington District Court granted preliminary  xrelief based upon a finding that plaintiffs had demonstrated "serious questions going to the merits and a  S0- xbalance of hardships tipping sharply in their favor."@ 00  {O-ԍxId. at 3.@ On June 9, 1998, the Illinois District Court similarly  xreferred the questions of the legality of the Ameritech/Qwest Agreement under sections 251(g) and 271  S- x=to this Commission for determination under the doctrine of primary jurisdiction. (  {OB-  \ԍXxSee Memorandum and Order, AT&T Corp., et al. v. Ameritech Corp., 98 C 2993 (N.D. Ill. June 9, 1998)  {O -  M("Memorandum and Order"); see also Memorandum of Federal Communications Commission as Amicus  {O-  Curiae in Support of Primary Jurisdiction Referral ("FCC Memorandum"), filed in AT&T Corp., et al. v.  {O -Ameritech Corp., No. 98 C 2993 (N.D. Ill. June 3, 1998)(# The Illinois District  xCourt denied AT&T's request for a preliminary injunction, noting that AT&T would have the opportunity  S-to renew its request for interim relief before the Commission.Z   {O#-ԍXxMemorandum and Order at 11.(#Z "D 0*$$33"Ԍ S- ` ԙx6.` ` On June 11, 1998, the Common Carrier Bureau (Bureau) released a Public Notice  xestablishing expedited procedures for the Commission's consideration of the issues referred by both the  S- xIllinois and Washington District Courts.$  {O-  ԍXxProcedures Established For Resolution of Primary Jurisdiction Referrals By the U.S. District Court for the   Western District of Washington in AT&T Corp., et al. v. U S West Communications, Inc., and by the U.S.  {O-  District Court for the Northern District of Illinois in AT&T Corp, et al. v. Ameritech Corp., DA981109 (rel. June 11, 1998).(# Pursuant to the Public Notice, AT&T and MCI, along with  S- xyother complainants,eX  yO-  ԍXxComplainants in this Commission formal complaint proceeding are AT&T, MCI, ALTS, MGC   Communications, Inc. (MGC), Time Warner Communications Holdings, Inc. (Time Warner), and NEXTLINK Illinois, Inc. and NEXTLINK Ohio, L.L.C. (NEXTLINK), (collectively "Complainants"). (#e filed a consolidated complaint against Ameritech on June 15, 1998, which included,  S`- x=inter alia, AT&T and MCI's request for a standstill order pending a final determination on the merits by  xthe Commission. On June 16, 1998, the Bureau released a Public Notice modifying the pleading schedule  S- xin part.  {O-  ԍXxPleading Schedule Established for AT&T Corp., et al. v. Ameritech Corporation, File No. E9841, DA981164 (rel. June 16 1998).(# On June 17, 1998, Qwest moved to intervene in this proceeding in support of Ameritech..  {O-  ԍXxSee Motion of Qwest Communications Corporation For Leave to Intervene (filed June 17, 1998). The motion further sought to extend the briefing schedule that had been previously set.(# The  S- xBureau granted Qwest's motion.  {O-  ԍXxSee letter from Diane Griffin Harmon, FCC, to Roy E. Hoffinger, AT&T Corp., et al., (June 18, 1998).   The Bureau denied Qwest's motion to modify the pleading schedule and directed Qwest to file its pleadings   in accordance with those dates and filings that Ameritech was authorized to file. Qwest had simultaneously  {Ol-  filed a motion to intervene in AT&T, et al. v. U S West, File No. E9842. Motion of Qwest For Leave to  {O6-   Intervene in AT&T, et al. v. U S West, File No. E9842. That motion was similarly granted in the same letter.(# Ameritech and Qwest filed oppositions to the request for interim relief  S-on June 22, 1998, to which AT&T and MCI filed a reply on June 24, 1998.  yOh-  =ԍXxAmeritech also filed a Petition for En Banc Hearing Prior to Disposition of Motion for Interim Relief (filed   \June 22, 1998). Petitioners filed an Opposition to Petition For En Banc Hearing Prior to Disposition of  {O-  Motion For Interim Relief (filed June 29, 1998). In addition, two amicus briefs regarding the Motion were   filed: Memorandum of the Ohio Consumers' Counsel in Support of a "Stand-Still" Order (filed June 22,   1998); Memorandum of U S West, Inc. As Amicus Curiae in Support of Opposition of Ameritech Corp. to Motion For Interim Relief (filed June 22, 1998).(# "0*$$334"Ԍ S- III. DISCUSSION ă  S-   Contentions of the Parties  S`- p x` ` 7. Petitioners present two alternative rationales in support of their request for a  x{standstill order pending final action by the Commission on the complaint. Petitioners argue that a  x=standstill order is appropriate in this case because the Commission has already determined that there are  xN"'serious questions as to whether the terms of Ameritech's agreement with Qwest, in effect, make  S- x Ameritech a provider of longdistance service in violation of section 271,'"c  {O( -ԍXxMotion at 3 (citing FCC Memorandum).(#c and that "'there is also a  x^significant issue as to whether the AmeritechQwest agreement is consistent with Ameritech's  Sp- xresponsibility to provide equal access to its facilities to all long distance carriers.'"BpZ  {Oj -ԍXxId.(#B Petitioners state that  SH - xthe Supreme Court's decision in United States v. Southwestern Cable Co. establishes the Commission's  S" -authority to enter a standstill order while it considers the merits of a proceeding."   {O-ԍXxId. at 2122 (citing United States v. Southwestern Cable Co., 392 U.S. 157 (1968) ("Southwestern Cable")).(#Ƶ  S - p6x` ` 8. Alternatively, Petitioners contend that grant of an interim standstill order is  xsupported by an examination of the facts under the four principles generally cited by the courts and the  S - xCommission in determining whether to grant a stay or other injunctive relief. ~  {O-   ԍXxId. at 22 (citing Virginia Petroleum Jobbers v. Federal Power Comm'n., 259 F.2d 921 (D.C. Cir. 1958)  {Oj-("Virginia Petroleum Jobbers")).(# Petitioners assert that they  xyhave established a sufficient likelihood of success on the merits because the Ameritech/Qwest Agreement  x!and Ameritech's actions under the agreement demonstrate that Ameritech is providing prohibited  x[interLATA service and wrongfully preferring Qwest over other long distance carriers (IXCs) in violation  xof sections 271 and 251(g) of the Act, respectively. Next, Petitioners assert that they, along with other  xcarriers, will be irreparably harmed by their loss of customers and goodwill that cannot be adequately  xcompensated for by monetary damages due to the substantial marketplace impact that is likely to result  Sj- x=from Ameritech's further implementation of the agreement.Lj  {O-ԍXxId. at 6061.(#L Next, Petitioners maintain that prohibiting  xAmeritech from continuing to implement the Ameritech/Qwest Agreement would not irreparably harm  xAmeritech because it will be able to resume its marketing activities immediately in the event the  S- xagreement is ultimately deemed lawful.Ll  {O -ԍXxId. at 6970.(#L Petitioners add that a standstill order will not prevent Qwest  xfrom continuing to market its long distance offerings to customers in Ameritech's region at the rates" 0*$$33"  S- x-specified in the Ameritech/Qwest Agreement.I  {Oh-ԍXxId. at 70.(#I Finally, Petitioners argue that entry of an interim standstill  x[order will protect the public interest because implementation of such an agreement will distort both local  S-and long distance telecommunications markets in a short period of time.LZ  {O-ԍXxId. at 5659.(#L  S`- px` ` 9. Ameritech opposes this motion, arguing as an initial matter that the Commission  xjlacks authority under section 4(i) to halt the ongoing "teaming" activities of Ameritech and Qwest absent  S- xa determination, following a hearing under section 312 of the Act, that such activities are unlawful.w  {O -ԍXxSee Ameritech Opposition to Motion at 33 ("Opposition").(#w  S- xAmeritech contends that Southwestern Cable stands only for the proposition that the Commission may  x order parties to refrain from "expanding" conduct that is ongoing at the time an interim relief order is  x]issued. Ameritech contends that Petitioners may not use section 4(i) to deprive Ameritech of the  Sr-procedural protections Congress intended to provide in section 312.r~  {O-  \ԍXxId. Section 312 of the Act prescribes certain "Administrative Sanctions" available to the Commission to   /remedy violations of the Act and the Commission's rules and orders. Subsection 312(a) provides that the   Commission "may" revoke a station license or construction permit under any one of seven enumerated   {factual circumstances. 47 U.S.C.  312(a). Subsection 312(b) similarly provides that the Commission   "may" order "any person" who has failed to operate substantially as set forth in a license or has otherwise   violated a provision of the Act, certain provisions of Title 18 of the United States Code, or any rule or   kregulation of the Commission, to "cease and desist" from such action. 47 U.S.C.  312(b). Before taking   the actions prescribed in subsections 312(a) and (b), subsections 312(c) and (d) require that the Commission   \conduct "show cause" proceedings in which the Commission bears both the burden of proceeding with the introduction of evidence and the burden of proof. 47 U.S.C.  312(c) and (d). (#  S" - p4x` `  10. Ameritech argues further that, even if the Commission is deemed to have authority  xLto grant the relief Petitioners seek, the facts of this case do not support such relief under the four criteria  S - xtraditionally relied upon by the courts and the Commission.J   yO-ԍXxOpposition at 34.(#J Ameritech asserts that Petitioners have not  xdemonstrated a likelihood of success on the merits. According to Ameritech, the Ameritech/Qwest  x?Agreement was carefully crafted to comport with sections 271 and 251(g) of the Act. Ameritech  xmaintains that it is not selling its own inregion interLATA services under the agreement, and has made  xthe agreement available to other IXCs on a nondiscriminatory basis the basic tenets of sections 271 and  x=251(g). Next, Ameritech argues that Petitioners have not demonstrated they will suffer irreparable harm  xabsent interim relief, because (1) the loss of customers can be adequately compensated for with monetary  xdamages, (2) the loss of customers to price competition does not equate to loss of goodwill, and (3) the  S- xpotential loss of goodwill does not constitute irreparable harm.N  yO#-ԍXxOpposition at 99109.(#N Ameritech asserts that it, on the other"80*$$33"  xhand, will suffer irreparable harm if interim relief is ordered because Ameritech's reputation will be  xdamaged by being required to inform inquiring customers that it is legally precluded from making  xavailable a service that it has publicly announced. Finally, Ameritech contends that the public interest will  xbe harmed by an interim relief order because the ability of competitive IXCs such as Qwest to inform the  xzpublic of their competitive offerings will be limited and, as a result, consumers will be deprived of the benefits of the lower prices offered by IXCs other than AT&T and MCI.  S- px` `  11. Ameritech also opposes the grant of the relief sought by Petitioners on  xzconstitutional grounds. It contends that any interpretation of sections 271 and 251(g) of the Act that  xinvalidates Ameritech's marketing of Qwest's long distance service would render the Act in violation of  Sp- xthe First Amendment.K p  yO -ԍXxOpposition at 124.(#K Citing to numerous cases in which the courts have upheld the dissemination of  SH - xcommercial messages about products and services,J!H X  {O@ -ԍXxId. at 125.(#J Ameritech argues that Petitioners $> ' $>  "version of the Act  x'constitutes a blanket prohibition against truthful, nonmisleading speech about a lawful product,' designed  S - x]to 'serve[] an end related to consumer protection.'""   {O-ԍXxId. (quoting 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 504 (1996)).(#Ɨ Ameritech argues that even if there existed a  x compelling purpose in regulating Ameritech's speech, such regulation by the government may not be  S - xsustained if it provides only ineffective or remote support for the government purpose.J# |  {O-ԍXxId. at 126.(#J According to  xAmeritech, the speech restriction that Petitioners read into the Act would render the Act unconstitutional  SX-because it would do nothing to further the Act's goal of promoting competition in telecommunications.B$X  {O-ԍXxId.(#B  S- pbx` `  12. In reply, Petitioners describe as frivolous Ameritech's First Amendment claims.  xPetitioners argue that to the extent the Commission finds that Ameritech has violated the Act by entering  xinto a teaming arrangement with Qwest, Ameritech's marketing speech is not protected by the First  S- xAmendment.X%  yO-ԍXxPetitioners' Reply Brief at 74.(#X Petitioners add that under Ameritech's reasoning, the equal access and line of business  xjrestrictions that were in place under the MFJ for more than a decade were invalid restrictions on its First  S@-Amendment rights.B&@0  {O -ԍXxId.(#B x" &0*$$33b"Ԍ S- 8Discussion  S-xA. ` ` Standard for Issuance of Interim Relief  S`- px` `  13. In our recent Order establishing rules of procedure to govern formal 8complaint  xproceedings, we concluded that it is appropriate "to consider requests for interim or injunctive relief on  xa casebycase basis," and we expressly declined to delineate procedural requirements or a single  S- xevidentiary standard applicable to all requests for interim injunctive relief or other emergency orders.'  {OP-   ԍXxAmendment of Rules Governing Procedures to be Followed When Formal Complaints are Filed Against  {O -  kCommon Carriers, Report and Order,  169, 12 FCC Rcd 22497, 2256566 (1997) ("Formal Complaints  {O -  [Order") ("After weighing the various comments, we conclude that it is more appropriate to consider requests   for interim relief on a casebycase basis. It is impossible to anticipate all of the various factual   0circumstances that could form the basis of a complaint. Similarly,the level and types of information necessary to sustain or refute allegations of misconduct by carriers is likely to vary widely.").(#  S- x.However, the Commission and the federal courts generally consider the four criteria set forth in Virginia  S- x=Petroleum Jobbers to evaluate requests for preliminary injunctive relief: (1) likelihood of success on the  xmerits; (2) the threat of irreparable harm absent the grant of preliminary relief; (3) the degree of injury  SL - xLto other parties if relief is granted; and (4) that the issuance of the order will further the public interest.(^L F  {O2-  ԍXxSee Comark Cable Fund III v. Northwestern Indiana Telephone Co., 104 FCC 2d 451, 456 (1985)  {O-  {("Comark") (citing Virginia Petroleum Jobbers, 259 F.2d 921; Washington Metropolitan Area Transit  {O-Commission v. Holiday Tours, Inc., 559 F.2d 841 (D.C. Cir. 1977) ("Holiday Tours")).(#Ʃ  xWe conclude here that a balancing of these criteria is appropriate. Although not mandated by the  S - xCommunications Act, the Virginia Petroleum Jobbers standard is consistent with the standard previously  S - xused by the Commission in the standstill order affirmed by the Supreme Court in Southwestern Cable,  xLwhere the Commission assessed the seriousness of the legal questions and the interests of the public and  S -the private parties involved.$)H l  {O-  ԍXxSee Midwest Television, Inc. (KFMBTV), San Diego, Ca. , Petitioner for Immediate Temporary and for  {O^-  {Permanent Relief Against Extensions of Service of CATV Systems, Memorandum Opinion and Order, 4  {O(-  F.C.C. 2d 612, 621 (1966) ("Midwest") ("strong public interest considerations ... should be resolved before  yO-  Lthe establishment or entrenchment of CATV substantially through an area such as San Diego is permitted.").   In that case, the Supreme Court underscored that "'the administrative process (must) possess sufficient   flexibility to adjust itself'" to evolving circumstances, and found authority for fashioning reasonable   administrative practices under sections 4(i) and 303(r) of the Communications Act of 1934 to protect the  {O-public interest. Southwestern Cable, 392 U.S. at 180.(#$  S8- prx` `  14. In applying the four criteria, we recognize that no single factor is necessarily  S- x>dispositive.*^|  {O,"-  ԍXxSee Midwest, 4 FCC 2d 612, aff'd, Southwestern Cable, 392 U.S. 157; See also United States v. Odessa  {O"-  Union Warehouse Coop, 833 F.2d 172, 174 (9th Cir. 1987) ; In re DeLorean Motor Co. v. John Z.  {O#-DeLorean (831802), 755 F.2d 1223, 1228 (6th Cir. 1985).(#Ƥ For example, a compelling demonstration that the public interest would be irreparably"*0*$$33"  xharmed lessens the level of certainty required of a moving party to show that it will prevail on the merits.  S- xIndeed, the court in Virginia Petroleum Jobbers recognized the relative importance of the four criteria will  xlvary depending upon the circumstances, noting that "[i]n litigation involving the administration of  S- xjregulatory statutes designed to promote the public interest, this factor necessarily becomes crucial."+  {O-  ԍXx Virginia Petroleum Jobbers, 259 F.2d 921, 925; see also Holiday Tours, 559 F.2d 841, 844845. We find   no due process requirement that any single factor, such as irreparable injury to the moving party, be   demonstrated as a prerequisite to issuance of a standstill order. Indeed, as noted, the Supreme Court upheld  {OL-  the standstill order in Southwest Cable in the absence of any finding of irreparable injury. Southwestern  {O-Cable, 392 U.S. at 180.(#Ɓ In  xevaluating essentially the same question presented to us, the Washington District Court issued a  xpreliminary injunction upon concluding that petitioners "have shown serious questions going to the merits  S- x]and a balance of hardships tipping sharply in their favor."V,~  {O0 -ԍ XxWashington Order at 3.(#V We reach the same conclusion in this  S-instance.-  yO-  ԍXxWe reject Ameritech's assertion that the Commission cannot restrict ongoing conduct and is limited to   zprohibiting the expansion of conduct that is the subject matter of the request for relief. Such a limitation   Nwould fundamentally undermine the concept of interim relief. Furthermore, the relief ordered here is   /consistent with, and, in fact, parallels that granted in the case that led to the Supreme Court's decision in  {O-  Southwestern Cable. See Midwest, 4 F.C.C. 2d 612, 62425, aff'd, Southwestern Cable, 392 U.S. 157. We    further reject Ameritech's contention that the relief provided here is more appropriately provided under   ksection 312 of the Act, 47 U.S.C. 312, and that we must therefore make a finding on the merits before  {O-  issuing a standstill order. In Southwestern Cable, the Supreme Court expressly upheld an order that limited   a company's expansion of customers pending a subsequent determination as to whether such expansion  {O-  zwould be in violation of the Communications Act or a rule or regulation thereunder. Southwestern Cable, 392 U.S. at 180. That is precisely the action we consider in this proceeding. (#  S-xB. ` ` The Merits  SJ - px` ` 15. The Commission has not affirmatively addressed whether agreements like the  S" - xComplete Access program are permitted under the Act. Petitioners have alleged that the Complete Access  xprogram (1) violates Ameritech's equal access and nondiscrimination obligations under section 251(g) of  xthe Act, and (2) constitutes the provision of inregion interLATA service in violation of section 271 of  xNthe Act. While not reaching any determination here as to the ultimate merits of the arguments, we  x.conclude that petitioners have raised serious questions involving core provisions of the Act. In deciding  xwhether the terms of this agreement must be suspended during the pendency of our consideration, we must  xbe cognizant that such an agreement could have a significant impact on the competitive landscape in these  xmarkets that is potentially inconsistent with the goals and purposes of the Act. For example, section 271  xKis central to the statutory scheme Congress adopted to promote competition in telecommunications because  xMthis section specifies how the largest local telephone companies may enter the lucrative long distance  xmarket, namely, by opening their local markets to competition. The Commission's obligation is to ensure  xthat the competitive landscape is not changed in ways that contravene the Act. Because this agreement"j v-0*$$33d"  xcould cause significant changes to the competitive landscape in the local exchange and long distance  xmarkets and because we find the petitioners raise serious questions regarding whether the agreement  xviolates the Act, we conclude that these issues must be addressed before any lasting effects resulting from this agreement take place in these markets.  S8- px` ` 16. Petitioners make several arguments to support their assertion that Ameritech has  xviolated its equal access and nondiscrimination obligations under section 251(g). First, they urge that by  x-actively recommending Qwest to its local customers and providing Qwest with various operational benefits  xnot available to other long distance carriers, Ameritech is unlawfully favoring Qwest and endorsing  xQwest's services over those of other carriers, contrary to MFJ precedent. Ameritech responds that its  xmarketing of Qwest is comparable to that which we permit under section 272 on behalf of a long distance  SH -affiliate after a BOC has satisfied the requirements of section 271..&H  {O -   ԍXxOpposition at 79 (citing In the Matter of Application of BellSouth Corp., et al. Pursuant to Section 271   of the Communications Act of 1934, as amended, To Provide In-Region, InterLATA Services in South  {OB -  !Carolina, Memorandum Opinion and Order, 13 FCC Rcd 539 at  233, 23637 (rel. Dec. 24, 1997)  {O -("BellSouth South Carolina Order").(#  S - px` ` 17. Second, petitioners urge that even if Ameritech were to make its arrangement  xavailable to other long distance carriers, such an arrangement would require such carriers to pay for  xnondiscriminatory treatment to which they are entitled by law in effect, compelling long distance  xMcarriers to pay Ameritech for marketing and other services in order to remain competitive. Ameritech  x?asserts in response that it need not tailor its arrangements to satisfy the needs of all long distance  S2-providers./2  yO-  ԍXxOpposition at 88 ("there is no legal requirement that every product or service ... be equally attractive to all long distance carriers").(#  S- px` ` 18. Third, petitioners deny that Ameritech's arrangement is or could ever be made  x available to long distance carriers on an equal basis. They argue that because the Qwest arrangement  xprecludes Qwest from providing intraLATA toll service, such an arrangement clearly favors those carriers  xthat do not offer intraLATA toll service in competition with Ameritech. In effect, Petitioners urge that  xAmeritech unlawfully would extract from its competitors the substantial concession that they cease  S- xcompeting in the intraLATA toll market as a quid pro quo for access to this arrangement, in violation of  S- xthe nondiscrimination requirements of 251(g).A0  yO- ԍXAmeritech takes issue with the assertion that its plan has an anticompetitive effect on the intraLATA toll  market, suggesting that Qwest may provide such toll services to customers who take Qwest service  {O2 - [independent of the packaged arrangement. They do not, however, deny that Qwest customers who subscribe  to the Complete Access program will be provided intraLATA toll service by Ameritech alone, not Qwest. Opposition at 18. (#A Further, they argue that the arrangement is tailormade  xkonly for those long distance carriers that have no retail marketing, billing, or collection units, and little" 00*$$33"  S- xname recognition, and that therefore would not object to paying Ameritech for those services.1  yOh-  ԍXxIn addition, focusing on Ameritech's alleged attempt to shape long distance rates under any joint   0arrangement, Petitioners object to "requiring a coerced uniformity of pricing as a condition for equal   treatment." Motion at 52. They cite an Amicus Brief filed before the Washington District Court in which   Washington Utilities and Transportation Commission stated, "[t]rue equality would allow competitors   'access' to a marketer at the terms of the long distance company, not on the terms of the monopoly local  {OP-provider." Id., Exhibit 32 (quoting WUTC Amicus Brief at 67).(# We  x.conclude that these arguments set forth by petitioners raise serious questions, many of first impression,  x{as to whether the arrangement under consideration violates the equal access and nondiscrimination requirements of section 251(g) of the Act.  S8- px` ` 19. Petitioners also argue that through its arrangement with Qwest, Ameritech is  x<violating the prohibition in section 271 that a Bell operating company may not provide interLATA services  x=until it has satisfied the requirements of that section. Petitioners argue that by (1) designing a package of  xservices including long distance, (2) selecting the longdistance carrier, (3) negotiating and controlling the  xprice for the long distance services to be offered under the package, (4) performing all marketing and  xbilling functions, (5) providing the point of contact for all customer care relating to the long distance  xservice, and (6) shaping the package so as to preclude the long distance carrier from offering intraLATA  xtoll services, Ameritech is providing long distance service within the meaning of section 271 of the Act.  xAmeritech responds that it is not in violation of the Act because Qwest provides the actual interLATA  xtransmission. Ameritech further denies any "direct financial stake" in Qwest's provision of interLATA services. Nonetheless, we consider the questions raised by petitioners to be serious.  SX-  px` ` 20. Petitioners suggest that it could not have been the intent of Congress to permit a  x|BOC to wield local monopoly power to shape competition in the long distance markets, while  S- xsimultaneously reinforcing its customer base in the intraLATA toll market.F2B  yO-ԍXxMotion at 31.(#F In addition, petitioners argue  x>that Ameritech "will effectively be crosssubsidizing the competitive efforts of a single longdistance  S- xcarrier,"F3  yO*-ԍXxMotion at 37.(#F and, as such, will engage in the provision of long distance service. Ameritech disputes that its behavior is anticompetitive and that any crosssubsidies exist. We find these questions to be serious ones.  S@- px` ` 21. Finally, we note that while the parties each have relied upon various cases that  xmay affect our interpretation of the meaning of sections 251(g) and 271, the parties hotly dispute what  xis the appropriate precedential effect of those cases and, indeed, the principles to be extracted from them.  S- xWhat is evident is that the serious questions presented by the case before us now have not previously been decided, and merit serious consideration as we move forward expeditiously with this proceeding. "z b 30*$$33"Ԍ S-xC. ` ` The Equities " S- p"x` ` 22. Having found that the Petitioners raise serious questions going to the merits of the  xdispute before us, we move to the second part of our inquiry, a balancing of the hardships, to determine  x[whether a standstill order is warranted in this case. We examine the threat of irreparable harm absent the  xlgrant of preliminary relief, the degree of injury to other parties if relief is granted, and whether the  xissuance of the order will further the public interest. In balancing the factors we emphasize, as did the  S- xcourt in Virginia Petroleum Jobbers, that "[i]n litigation involving the administration of regulatory statutes  x=designed to promote the public interest, this factor necessarily becomes crucial. The interests of private  S-litigants must give way to the realization of public purposes."4  {O -ԍXx Virginia Petroleum Jobbers, 259 F.2d 921, 925; see also Holiday Tours, 559 F.2d 841, 844845.(#Ʈ  SJ - pDx` ` 23. In enjoining a similar agreement between US West and Qwest, the district court  xzin Seattle concluded that, if the agreement were found unlawful, "to undo or rectify the damage would  S - xbe extremely difficult."U5 Z  {O-ԍXxWashington Order at 3.(#U "On the other hand," the court continued, "if the teaming agreement is upheld,  S - xthe marketing program can be resumed."B6   {O^-ԍXxId.(#B Furthermore, the court added, "if the agreement violates the  xTelecommunications Act, it will harm consumers' interests, as identified by Congress, because of its  S - xyanti-competitive nature."H7 ~  {O-ԍXxId. at 4.(#H We find "a balance of hardships tipping sharply in . . . favor"C8   {O2-ԍXxId. (#C of a standstill order for essentially the same reasons.  S -  px` ` 24. In the 1996 Act, as a key part of its new framework for transitioning local  x\telephone markets to competition, Congress explicitly prohibited the BOCs from providing inregion  xinterLATA services unless and until they show to the Commission that they have met certain conditions,  S- xincluding a showing that they have satisfied certain market opening requirements.9  {O-ԍXx47 U.S.C.  271; see also SBC Communications Inc. v. FCC, 138 F.3d 410, 413 (D.C. Cir. 1998).(#Ɵ The Commission has  xLpreviously rejected Ameritech's application to enter the Michigan long distance market after determining  SB- xthat Ameritech had not yet complied with the requirements of Congress's competitive checklist.:^B4  {O -  MԍXxSee In the Matter of Application of Ameritech Michigan Pursuant to Section 271 of the Communications  {O -  \Act of 1934, as amended, to Provide InRegion, InterLATA Services in Michigan, Memorandum Opinion  {O!-and Order, 12 FCC Rcd 20543 (1996), recon. pending.(#Ƈ As  xdiscussed above, Ameritech's agreement with Qwest raises serious questions as to whether Ameritech's  xactions under the agreement constitute the provision of long distance services and thus circumvent the  xprohibition in section 271 and our order denying Ameritech's Michigan application. If we allow" Z :0*$$33"  x.Ameritech to continue to implement its arrangement, and then ultimately find the arrangement unlawful,  x=Ameritech would already have provided inregion interLATA service without authorization, in violation of the careful balance Congress sought to strike in section 271. We find that allowing the agreement to  xgo forward before these important questions of lawfulness are resolved imposes a strong risk of upsetting  S`- x/the balance struck by Congress in section 271.;`  {O-  ԍXxSee SBC Communications, 138 F.3d at 413 (the provisions of section 271 are the product of a legislative compromise). (# In fact, in the absence of a standstill order it will be  xvirtually impossible to "unscramble" the effects of the agreement and return to the current status quo.  x.These important public interest factors, viewed in light of the significant questions regarding the legality  S-of the agreement, weigh heavily in favor of granting the standstill order.<"  {O -ԍXxSee Midwest, 4 FCC 2d 612 (1966), aff'd, Southwestern Cable, 392 U.S. 157.(#ƛ  S- pcx` ` 25. Moreover, as we found in Midwest, a standstill order is warranted where the  xcircumstances are such that it would be impracticable to "withdraw[] service, once established, because  SJ - x.of its disruptive effect."B=J   {O-ԍXxId.(#B Once a customer is receiving service under the terms of the AmeritechQwest  x[agreement, it would be similarly impracticable to require that customer to switch carriers in the event the  xagreement is found to be illegal (assuming we have the authority to do that); or, alternatively, disruptive  xto advise the customer that the specific package under which it has sought service is no longer available.  xAmeritech does not dispute that it is poised to market the CompleteAccess program aggressively and that  x=such marketing would likely result in substantial market gains, similar to those experienced by U S West  SZ- xas a result of its arrangement with Qwest.>ZF  yO@-  lԍXxU S West's affirmative marketing effort translated into more than 130,000 customers in three weeks. Motion at 5, Declaration of John A. McMasters, para. 38, Exhibit J.(# The prospects for substantial migration by consumers to the  xCompleteAccess program increases the potential for widespread customer uncertainty and confusion in the  xevent Ameritech is ultimately determined to be providing prohibited interLATA services and/or discriminating against other IXCs in favor of Qwest.  S- px` ` 26. We are not persuaded by Ameritech's counterargument that a standstill order will  x{deprive consumers of the benefits of competitive prices and better services while the Commission  xMconsiders the merits of the complaint. Ameritech's principal claim in this regard appears to be that if  xMcustomers are selecting the CompleteAccess program in substantial numbers, then the public interest  xdictates that the program continue. We disagree. In the first place, if we issue a standstill order Qwest  xcould still market its services to consumers in Ameritech's region at the rates reflected in the  xCompleteAccess program. Only Ameritech's role will be curtailed; Qwest will be free to continue to offer  xthe rates contemplated in the "teaming" arrangements. Consumers may thus continue to have access to"z >0*$$33"  S- xthe rates contemplated in the agreement.`?  yOh-  ԍXxWe note, for example, that following the Washington Court's action enjoining further implementation of   the U S West/Qwest marketing arrangement, Qwest publicly announced that it would continue to offer its   long distance services within the U S West region at the prices reflected in its agreement with U S West,   Lbut without US West's participation. Motion, Exhibit 55 ("Qwest Continues to Market Long Distance Offer in U S West Territory," Qwest Press Release (June 5, 1998)).(#` Moreover, as the district court in Seattle concluded, "if the  xagreement violates the Telecommunications Act, it will harm consumer interests, as identified by Congress,  S- xbecause of its anti-competitive nature."S@x  {O-ԍXxU S West Order at 4.(#S In other words, if the agreement is an unlawful circumvention  x=of Congress's framework for encouraging local competition, it harms consumers by reducing Ameritech's incentive to take the Congressionally mandated steps to open its local telephone markets to competition.  S- pCx` ` 27. With respect to the interests of the parties, we recognize that either the petitioners  x=or Ameritech will suffer some degree of harm depending on whether we issue a standstill order here. On  x[balance, however, we find that the potential harm to Petitioners is substantially greater than any harm to  xAmeritech caused by mere delay. Petitioners are already losing customers to Ameritech/Qwest and, if we  Sp- xdo not order a standstill, they are likely to continue to do so.OAXp   yO-  ԍXxIn the six weeks since the introduction of the CompleteAccess program, more than 10,000 customers already   have subscribed to the service with a minimal marketing effort by Ameritech. Motion at 62, Exhibit 3 (Deposition of Scott P. Alcott at 24).(#O If we later find the agreement to be  x<unlawful, it will be very difficult to remedy these losses without serious disruptions in service to the public  xNand, indeed, it is possible that customers who have migrated to Ameritech/Qwest pursuant to the  xagreement will never return to their previous carriers. Thus, Petitioners may not be able to obtain full  xyrecovery of their losses if we do not issue the standstill order. We are also concerned that, in the absence  xof a standstill order, Petitioners may in effect be compelled to alter their own marketing practices in ways  xthat may be substantial and irreversible. On the other hand, a standstill order will prevent Ameritech, for  xa time, from offering the CompleteAccess program, receiving marketing payments from Qwest, and  xbenefitting from potentially increased intraLATA toll revenues. This delay in realizing these benefits does  xjnot outweigh the Petitioners' losses. Moreover, we give little weight to Ameritech's argument that it will  xlsuffer injury to its reputation because of a delay in offering a program announced with substantial  S- xyfanfare.MB*  yO-ԍXxOpposition at 120. (#M Even if such damage to reputation would result, it would not outweigh the competing interests  xwe have identified. We underscore here that the interim relief granted herein does not prejudge whether  x/the "teaming" arrangement is lawful, and we presume that Ameritech will make this point clear to its  xcustomers and the public. If the Ameritech/Qwest Agreement is determined to be lawful, Ameritech will,  xof course, be able to resume its marketing of the CompleteAccess program. We have established an expedited pleading schedule and anticipate a prompt resolution of the merits. " B0*$$33"Ԍ S- pDx` ` 28. We conclude, therefore, that the balance of hardships, particularly the potential  xfor harm to the public interest, tips sharply in favor of ordering a standstill. Allowing the agreement to  xgo forward runs the risk that the local and long distance markets will be changed in ways that Congress  x.did not intend, and that will substantially harm the Petitioner $> s $> , and ultimately the public as well. These  xfactors substantially outweigh any potential harm to Ameritech resulting from a delay in implementing its program.  S- px` ` 29. In addition, we reject Ameritech's contention that issuance of a standstill order  S- x[would violate its First Amendment rights.UC  yO( -ԍxOpposition at 12428.U In the first place, the order targets the service contemplated  S- xMby the CompleteAccess program not the marketing of the program in and of itself.DXX  yO -  ԍXxIndeed, under Ameritech's reasoning, virtually any exercise of our authority under sections 203205 of the   0Communications Act to regulate carrier charges, classifications, or practices would necessitate a First  yO" -Amendment analysis, since regulation of a tariffed service affects the marketing of the service.(#Ʀ The Supreme  xCourt "has never . . . deemed [it] an abridgement of freedom of speech or press to make a course of  xconduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of  S" - x language . . . ."yE" x  {O:-ԍxOhralik v. Ohio State Bar Ass'n, 436 U.S. 447, 456 (1978). y In any event, even if the order incidentally reaches Ameritech's commercial speech,  S - xthere is no First Amendment violation here. The D.C. Circuit recently upheld section 274F   yO-ԍx47 U.S.C.  274. Section 274 restricts BOC participation in the business of electronic publishing. of the Act  xagainst a First Amendment challenge on the grounds that "it advances important governmental interests  xunrelated to the suppression of free speech and does not burden substantially more speech than necessary  S - xto further those interests."G   {O-ԍxBellSouth Corp. v. FCC, __ F.3d __, 1998 WL 242244 at *12 (May 15, 1998).Ē It cannot reasonably be denied that Congress's interest in managing an orderly  xztransition to competition in the local telephone markets is an important one. Sections 271 and 251(g)  xadvance that goal by setting forth a detailed framework for the transition that places restrictions on the  x[services BOCs may provide in the absence of local competition in order to provide a strong incentive for  xthe BOCs to open the local markets. As explained above, the public interest weighs heavily in favor of  xa standstill order while the Commission decides the significant questions as to the agreement's legality  S-under these provisions.HJ,  {O^-  ԍXxWe do not agree with Ameritech that the order must be given the level of scrutiny contemplated under 44  {O(-  zLiquormart, Inc. v. Rhode Island, 517 U.S. 484, 504 (1996) and Central Hudson Gas and Elec. v. Public  {O-  zServ. Comm'n., 447 U.S. 557 (1980). Unlike the laws at issue in those cases, which banned advertising of   klawful products in order "to keep people in the dark for what the government perceive[d] to be their own  {O!-  good" (44 Liquormart, 517 U.S. at 503), our action today regulates the services Ameritech may provide for   La purpose unrelated to the suppression of speech commercial or otherwise. We find that the standard used  {O#-  by the D.C. Circuit in BellSouth is the more appropriate one. See 1998 WL at * 11 (applying intermediate   ?scrutiny where there was "no hint that the government has adopted a regulation of speech because of"#G0*$$+$" [agreement or] disagreement with the message it conveys").(#  "XH0*$$33"Ԍ S-  pԙx` ` 30. The Commission recognizes that it is in the interest of the parties and the public  x.generally to resolve these important questions quickly, and we are committed to doing so. In particular,  xwe recognize that it is important, as a general matter, to resolve matters of this nature quickly so as not  x.to impede unduly the development of potentially procompetitive new business arrangements. As such,  xthe interim relief granted herein will terminate 90 days after adoption of this Order unless the Commission  xresolves the questions at issue or otherwise takes further action. We will not hesitate to extend the  xduration of the relief granted here if we determine that the complexity and novelty of the issues, the  xvolume of the record filed, or other pertinent circumstances warrant. We underscore, however, that we  xremain committed to resolving the issues presented by the parties as expeditiously as possible, and we will make every effort to do so.  SH - IV. CONCLUSION ă  S -  px` ` 31. Sections 251(g) and 271 are core provisions of the Act, adopted as part of the  x1996 Act and central to the Congressional policy regarding competition in telecommunications markets.  x[We conclude that the strong public interest in preserving the balance struck by Congress in the 1996 Act  xduring the transition to competition and the interest in preventing potential customer confusion weigh  x0strongly in favor of issuing a standstill order in this case. Any harm to Ameritech as a result of a  xstandstill order does not outweigh these concerns. We therefore conclude that a standstill order shall issue.  x=Specifically, we direct Ameritech to suspend enrollment of additional customers to the CompleteAccess  x=program, as well as all marketing and promotion of the program, for ninety days from the date of release  x0of this order unless otherwise ordered by the Commission. This standstill order does not require  xAmeritech to discontinue service under the CompleteAccess program to those subscribers that are already  xtaking service under CompleteAccess, or have contracted to take service under CompleteAccess, as of the date of this order.  S- V. ORDERING CLAUSES ă  S- p5x` ` 32. IT IS ORDERED pursuant to sections 1, 4(i), 4(j), 208, 251(g), 271 and 303(r)  xof the Act, 47 U.S.C.  151, 154(i), 154(j), 208, 251(g), 271, 303(r), that the Motion for Interim Relief  x=in the Form of a Standstill Order filed by AT&T and MCI IS GRANTED to the extent indicated herein.  ` $x` `  33. IT IS FURTHER ORDERED that, upon release of this order, Ameritech SHALL  xNOT enroll additional customers in, nor market or promote, the CompleteAccess program for ninety days from the date of release of this order unless otherwise ordered by the Commission. "XH0*$$33"Ԍ ` Q x` ` !34. IT IS FURTHER ORDERED that Ameritech's Petition for En Banc Hearing Prior  x=to Disposition of Motion for Interim Relief and Petitioners' Opposition to Petition for En Banc Hearing Prior to Disposition of Motion for Interim Relief ARE DISMISSED as moot. X` hp x (#%'0*,.8135@8: