Z-Tel Communications, Inc. v. Federal Communications Commission

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 27, 2003 Decided July 1, 2003
No. 01-1461
Z–T EL C OMMUNICATIONS, I NC.,
A PPELLANT
v.
F EDERAL C OMMUNICATIONS COMMISSION,
A PPELLEE
AT&T C ORPORATION, ET AL.,
INTERVENORS
Appeal of an Order of the
Federal Communications Commission
Albert H. Kramer argued the cause and filed the briefs for
appellant.
Rodger D. Citron, Counsel, Federal Communications Com-
mission, argued the cause for appellee. With him on the brief
were John A. Rogovin, Deputy General Counsel, Richard K.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.

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Welch, Associate General Counsel, and John E. Ingle, Deputy
Associate General Counsel. James M. Carr, Counsel, en-
tered an appearance.
Leslie V. Owsley argued the cause for Verizon intervenors.
With her on the brief were Michael E. Glover, Karen Zacha-
ria, Donna M. Epps, Mark L. Evans, Colin S. Stretch and
Scott H. Angstreich.
Before: G INSBURG, Chief Judge, and S ENTELLE and
RANDOLPH, Circuit Judges.
Opinion for the Court filed by Chief Judge GINSBURG .
G INSBURG, Chief Judge: The Federal Communications Com-
mission granted intervenor Verizon’s application seeking ap-
proval under § 271 of the Telecommunications Act of 1996, 47
U.S.C. § 271, to provide long-distance service to callers in
Pennsylvania, where Verizon is the incumbent local exchange
carrier. Verizon Pennsylvania Inc., 16 F.C.C. Rcd. 17419
(2001). Z–Tel Communications, a competitive local exchange
carrier, challenges the resulting Order, maintaining the Com-
mission erred in finding that Verizon provides competitors
nondiscriminatory access to its wholesale billing services, as
required by the Commission pursuant to § 271. We affirm
the Order.
I. Background
We presented a detailed history of § 271 in AT&T Corp. v.
FCC, 220 F.3d 607, 610–12 (2000), which we shall not repeat
here. Suffice it to say that in order for a Bell Operating
Company (BOC) to obtain authority to provide inter-LATA
(long-distance) service to callers in a region where it provides
local exchange service, it must first obtain approval from the
Commission. One method of obtaining approval, and the one
Verizon pursued in this case, requires the BOC first to apply
to the state regulatory agency, which makes an initial deter-
mination of the BOC’s eligibility. If the state agency ap-
proves, then the BOC may file an application with the Com-
mission, which has 90 days in which to evaluate whether the
application establishes the BOC’s compliance with, among

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other things, the ‘‘competitive checklist’’ in § 271(c)(2)(B).
The checklist ‘‘incorporates by reference many of the sub-
stantive requirements of the Act’s local competition provi-
sions,’’ AT&T Corp., 220 F.3d at 612, which in turn require
the BOC to take various steps to open its market to competi-
tive local exchange carriers (CLECs). In particular, the
checklist requires the BOC to provide CLECs with ‘‘[n]ondis-
criminatory access to [unbundled] network elements’’
(UNEs). § 271(c)(2)(B)(ii).
The only UNE relevant to this appeal is the Operation
Support Systems (OSS) element, which the Commission has
described as the various ‘‘systems, databases, and personnel’’
that the BOCs use ‘‘to provide service to their customers.’’
SBC Communications Inc., 15 F.C.C. Rcd. 18354, ¶ 92 (2000).
The OSS element itself consists of five functions, of which
‘‘billing’’ is one. Bell Atlantic New York, 15 F.C.C. Rcd.
3953, ¶ 82 (1999). The billing requirement in turn has two
components: the BOC must provide CLECs with ‘‘complete
and accurate reports on the service usage of competing
carriers’ customers in substantially the same time and man-
ner that [it] provides such information to itself,’’ and it must
provide ‘‘wholesale bills in a manner that gives competing
carriers a meaningful opportunity to compete.’’ SBC Com-
munications Inc., 16 F.C.C. Rcd. 6237, ¶ 163 (2001). The
latter component is the subject of the present dispute.
In June 2001 the Pennsylvania Public Utility Commission
approved Verizon’s application to provide long-distance ser-
vices to callers in Pennsylvania, conditioned upon Verizon
taking certain further action. In particular, the PUC ex-
pressed concern that Verizon be able to provide ‘‘timely and
accurate electronic bills,’’ and required Verizon to take steps
to alleviate that concern.
Verizon provides CLECs in Pennsylvania with bills in two
formats: a ‘‘retail-formatted bill,’’ generally printed on paper,
and a Billing Output Specification Bill Data Tape, or ‘‘BOS
BDT,’’ which is designed to be computer-readable. Verizon
has always provided retail-formatted bills, and their accuracy
is not at issue in this appeal. Verizon began offering BOS

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BDT bills in January 2000, but it experienced problems,
including incorrect charges appearing on the bills, that caused
it to suspend BOS BDT billing for several months. It
reintroduced BOS BDT bills in October 2000, but some
problems remained despite Verizon’s continuing effort to fix
its software.
In April 2001 Verizon ‘‘implemented a process TTT to
manually review and adjust the BOS BDT bills to match them
to the retail-formatted bills and to reconcile internal inconsis-
tencies.’’ Order ¶ 20. Verizon then contracted with PriceWat-
erhouseCoopers (PWC) to compare its BOS BDT bills with its
retail-formatted bills ‘‘and to test the readability and audita-
bility of the BOS BDT bill.’’ Id. ¶ 21. PWC’s studies showed
that ‘‘the BOS BDT bill is largely comparable to the retail-
formatted bill.’’ Id. ¶ 35. Meanwhile, Verizon had sponsored
a separate study, completed in December 2000 by KPMG
Consulting, that found its retail-formatted bills were accurate.
Based upon these studies, in May 2001 Verizon offered
CLECs the option of treating the BOS BDT bill as their ‘‘bill
of record.’’ It also continued working to fix its billing system,
making changes to its software through June 2001.
Verizon filed its application with the Commission on June
21, 2001. The Commission thereafter received: (1) the com-
ments of Z–Tel and of other interested parties; (2) Verizon’s
reply comments; (3) the report of the Department of Justice
required by § 271(d)(2)(A); and (4) numerous ex parte sub-
missions.
In their comments Z–Tel and certain other CLECs claimed
that Verizon had not demonstrated it could deliver an accu-
rate BOS BDT bill and indeed that as of June 2001 it never
had delivered such a bill. Z–Tel also claimed that certain
‘‘performance metrics’’ Verizon had submitted in support of
its application were inadequate to measure the accuracy of
Verizon’s billing performance.
Verizon replied on August 17 in an ex parte letter contain-
ing additional data and arguments, three aspects of which are
noteworthy. First, Verizon provided a table showing the
rates of error in its bills had decreased from approximately

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27% in February to about 2% in May and June. Second,
Verizon’s data showed the error rates in what the Commis-
sion called Verizon’s ‘‘historic problem areas’’ had also
dropped over time. Finally, Verizon submitted a ‘‘recalcula-
tion’’ of certain of the billing performance metrics.
In the Order approving Verizon’s application, the Commis-
sion found that ‘‘despite some historical problems in produc-
ing a readable, auditable and accurate wholesale bill TTT
Verizon now provides a wholesale bill that gives [CLECs] a
meaningful opportunity to compete.’’ Order ¶ 15. Although
the Commission considered ‘‘commercial performance data’’
to be the ‘‘most persuasive form of evidence,’’ it determined
that in this case it could not rely exclusively upon such data
because ‘‘Verizon has made significant changes to its whole-
sale billing systems in the most recent months leading up to
[its] application.’’ Id. ¶ 24. The Commission did consider
Verizon’s commercial performance data to the extent that, in
response to the commenters’ objections based upon the bills
they had received from Verizon, it cited the February
through June downward trend in error rates as evidence that
Verizon’s software fixes had improved its performance ‘‘to the
point where error rates no longer differ materially from
wholesale billing data for those states in which BOCs have
already received section 271 authority.’’ Id. ¶ 26. The Com-
mission also relied upon the PWC and KPMG studies, id.
¶ ¶ 31–36, Verizon’s recent software fixes, and its manual
review process, id. ¶ 38, as evidence that Verizon had brought
its billing performance up to an acceptable level.
II. Analysis
In this appeal, Z–Tel maintains that for several reasons the
Order was arbitrary, capricious, and contrary to law. We
consider and reject each of Z–Tel’s arguments below.
A. Complete When Filed
Z–Tel claims the Commission violated its own procedural
rules by considering evidence that was not properly before it.
The Commission’s stated policy is as follows:

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We expect that a section 271 application, as originally
filed, will include all of the factual evidence on which the
applicant would have the Commission rely in making its
findings thereon. In the event that the applicant sub-
mits TTT factual evidence that changes its application in a
material respect, the Commission reserves the right to
deem such submission a new application and start the
90–day review process anew.
Procedures for Bell Operating Company Applications Under
New Section 271, Public Notice, 11 F.C.C. Rcd. 19708, 19709
(1996). This formulation, known as the ‘‘complete when filed’’
rule, reserves to the Commission considerable discretion to
determine whether to reject late-filed evidence. Bell Atlantic
New York, 15 F.C.C. Rcd. 3953, ¶ 35 (‘‘our precedent makes
clear that this rule is a discretionary one’’). Moreover, the
rule contains an exception:
[An applicant] may submit new factual information after
the application is filed, if the sole purpose of that evi-
dence is to rebut arguments or facts submitted by other
commenters [and the new evidence] cover[s] only the
period placed in dispute by commentersTTTT
SBC Communications Inc., 15 F.C.C. Rcd. 18354, ¶ 35. See
Updated Filing Requirements for Bell Operating Company
Applications Under Section 271 of the Communications Act,
Public Notice, 16 F.C.C. Rcd. 6923, 6925–26 (Common Carrier
Bureau 2001) (Updated Filing Requirements) (restating the
rule and exception).
Z–Tel claims the Commission violated the complete when
filed rule by considering Verizon’s August 17 submission as a
basis for granting its application. Instead of forcing Z–Tel
and other interested parties to attempt to tailor their com-
ments to a ‘‘moving target,’’ it complains, the Commission
should have required Verizon to withdraw its application and
submit anew. Z–Tel also argues that Verizon’s August 17
submission was objectionable because it included billing data
for the month of June, which Verizon generated after it had
filed its application with the Commission.

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The Commission addressed each of these objections in the
Order. With respect to the complaint that consideration of
evidence in the August 17 submission violated the complete
when filed rule, the Commission ruled the data were admissi-
ble because they fell within the exception described above:
‘‘the evidence we rely on was submitted by Verizon to rebut
competitors’ assertions and pertains only to the May and
June billing cycles.’’ Order ¶ 7 n.20. With regard to the
inclusion of June data that post-dated the filing of Verizon’s
application, the Commission pointed out that it ‘‘ha[d] previ-
ously considered performance that covered a time period
slightly beyond the comment filing date,’’ and it ‘‘believe[d] it
[was] appropriate to do so here.’’ Id. ¶ 7 (citing SBC Com-
munications Inc., 15 F.C.C. Rcd. 18354, ¶ ¶ 39–40). In fact
the performance data for June did not extend beyond the
date for filing comments, which was July 11, but some of it
did cover a period beyond the date of the application (June
21), which no doubt explains the Commission’s understanding,
further discussed below, that it was departing from strict
adherence to the complete when filed rule.
Verizon’s submission of August 17 clearly comes within the
exception to the complete when filed rule. Z–Tel and other
commenters had challenged Verizon’s billing performance for
the months of May and June, e.g., Comments of Z–Tel (July
11, 2001) 8; Rubino Decl. ¶ 5; Reply Comments of Z–Tel
(Aug. 6, 2001) 5, and Verizon was merely responding, defend-
ing its billing performance for those months by showing its
error rate was lower than it had been before. The submis-
sion therefore met the Commission’s requirements that new-
ly-filed evidence ‘‘rebut arguments or facts submitted by
other commenters’’ and ‘‘cover only the period placed in
dispute by commenters.’’
Z–Tel contends that even if the Commission could properly
consider Verizon’s August 17 submission under the exception
to the complete when filed rule, the exception limits the
Commission to considering data solely for the purpose of
rebuttal. Therefore, Z–Tel argues, Verizon’s late-filed sub-
mission could at best rebut complaints from commenters that
its billing performance in May and June was inadequate; the

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Commission could not rely upon the late-filed data to find
Verizon’s billing performance was adequate. As authority for
this proposition Z–Tel cites the Commission’s prior state-
ments to the effect that an applicant should include in its
application ‘‘all of the factual evidence on which the applicant
would have the Commission rely.’’ Procedures for Bell Oper-
ating Company Applications Under New Section 271, 11
F.C.C. Rcd. at 19709; Updated Filing Requirements, 16
F.C.C. Rcd. at 6925; see also id. at 6926 (‘‘It generally will
not be appropriate for an applicant to make any part of its
initial prima facie showing for the first time in reply com-
ments or in ex parte submissions, although there may be
limited exceptions to this rule’’).
The statements Z–Tel cites all indicate the Commission
might refuse to grant a § 271 application if the applicant first
presents evidence of its compliance with a checklist item in its
reply comments, but they also indicate the Commission re-
tains the power to make reasoned exceptions to the rule. In
this case, the Commission chose not to segregate the evidence
before it into data that may permissibly be used to establish a
prima facie case and data that may be used only in rebuttal.
Because ‘‘[n]either the June carrier-to-carrier performance
data nor the data reflecting Verizon’s June billing perfor-
mance TTT could be generated until the end of the calendar
month,’’ and because no ‘‘party to [the] proceeding [was]
prejudiced’’ by its consideration of the data, Order ¶ 7, the
Commission indicated that it would waive the aspect of the
complete when filed rule providing that late-filed information
can be used only for the purpose of rebuttal. We find this
approach eminently reasonable. It is neither arbitrary nor
capricious for the Commission to consider any evidence that
is properly before it for any purpose as to which it is
probative. See Greyhound Lines, Inc. v. ICC, 667 F.2d 151,
152–53 (D.C. Cir. 1981) (‘‘the courts have long recognized that
evidentiary rules used in judicial proceedings do not control
the more flexible administrative process’’).

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B. Billing Metrics
Z–Tel also argues the Commission acted arbitrarily and
capriciously by not giving any weight to the recalculated
billing metrics Verizon submitted as part of its August 17
submission. According to Z–Tel, they show Verizon made
many more errors in billing CLECs than it made in billing its
own customers.
In the Order the Commission noted both that the CLECs
had challenged the soundness of certain of the billing metrics
and that ‘‘Verizon itself acknowledges some of the metrics’
flaws.’’ Order ¶ 41 n.157. The Commission concluded by
noting:
Until July TTT the billing accuracy and timeliness metrics
did not apply to Verizon’s BOS BDT bills. Verizon
generally does not rely on its wholesale billing perfor-
mance metrics to establish its affirmative case. In these
circumstances, we do not rely on the billing accuracy
metrics in considering Verizon’s section 271 showing.
Id. Z–Tel’s complaint is that the Commission cannot ignore
evidence unfavorable to an applicant merely because the
applicant itself did not rely upon it; rather, Z–Tel claims, the
Commission must consider all probative evidence properly
put before it, regardless whether the applicant has relied
upon it.
Z–Tel’s point, which may well be correct as a general
proposition, does not advance its cause here because the
billing metrics in question were not, as calculated, indicative
of the contemporaneous error rate. To be specific, the billing
accuracy metrics, which are the metrics Z–Tel claims under-
mine Verizon’s application, are calculated as fractions:
The numerator of the bill accuracy metrics [(BI–3)] is the
total amount of dollars credited to CLECs as a result of
billing errors in the reporting month, regardless of when
the CLEC submitted the claim for the error or what
month(s) the error occurred in. The denominator is the
current charges billed to CLECs in the reporting
monthTTTT [T]his means that the credits reported in a

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month do not relate to the charges billed in that
monthTTTT
McLean/Wierzbicki/Webster Reply Decl. (Aug. 6, 2001) 24
¶ 54. As Z–Tel itself as well as other commenters pointed
out, the result of this arrangement is that the billing metrics
‘‘won’t capture failures for many months.’’ Z–Tel Ex Parte
(Aug. 17, 2001) at 4. And as became clear at oral argument,
the numerator for a given month may contain credits issued
for that month, for one or more prior months, or for no
months, depending upon the vintage of the billing disputes
Verizon and the CLECs happened to resolve that month.
Because of this and other limitations, Z–Tel informed the
Commission that ‘‘Verizon’s billing performance metrics pro-
duce no substantive information.’’ Id.
Although Z–Tel later argued to the Commission that the
recalculated billing metrics Verizon submitted on August 17
remedied some of the problems with those metrics – in
particular, Verizon’s ‘‘placing CLEC billing errors in the
wrong performance reports,’’ Z–Tel Ex Parte (Sept. 6, 2001)
at 2 n.1 – it did not claim that Verizon had solved the
underlying structural problem with the metrics. The Com-
mission did not go into great detail about its reason for not
relying upon the billing metrics, but what it did say is both
clear and sound: ‘‘competitive LECs allege’’ the billing met-
rics are inaccurate, Order ¶ 41 n.157; ‘‘Verizon itself acknowl-
edges some of the metrics’ flaws,’’ id.; ‘‘Verizon generally
does not rely’’ upon the metrics, id.; therefore neither would
the Commission rely upon them.
In its reply brief to this court Z–Tel now claims that
Verizon’s recalculation of the metrics corrected their ‘‘pri-
mary problem.’’ It appears to us, however, that the structur-
al problem with the metrics, namely the unpredictable but
possibly significant lag between any error and its reflection in
the billing metrics, is at least as serious. Certainly Z–Tel did
not indicate in its comments to the Commission that this was
a lesser problem. Under these circumstances, we do not fault
the Commission for declining to rely upon data that the
parties agreed had significant problems.*
* Z–Tel argues, also in its reply brief, that because Verizon’s
billing of CLECs has consistently grown over the period during

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C. Balancing the Billing Factors
As mentioned above, the billing function of the OSS UNE
has two components: service usage reporting and wholesale
billing. Z–Tel argues the Commission permitted Verizon’s
questionable performance in the second component to be
offset by its strong performance in the first. This is imper-
missible, Z–Tel claims, because the Order itself stated that
the ‘‘two essential billing functions’’ serve ‘‘two different
purposes’’ and are measured in different ways; Order ¶ 13; it
is therefore arbitrary and capricious to make up a shortfall in
one with a surplus in the other.
In response the Commission defends its authority to en-
gage in the balancing Z–Tel alleges. It cites our decision in
AT&T Corp., 220 F.3d at 624, for the proposition that it may
perform an overall evaluation of a BOC’s performance with
respect to a single UNE rather than evaluating each subele-
ment separately. In AT&T Corp. we deferred to the Com-
mission’s interpretation of § 271 to the effect that a BOC
need not show that it provides nondiscriminatory access to a
particular type of service loop when the BOC had shown that
it provided nondiscriminatory access to loops in general. Id.
It is not clear whether the reasoning of AT&T Corp.
applies here because the Commission has limited its own
discretion by setting individual standards for wholesale billing
and service-usage reporting. We need not decide whether
§ 271 permits balancing in this case, however. Z–Tel cites
two passages in the Order under review, neither of which
convinces us that the Commission in fact balanced a shortfall
in Verizon’s wholesale billing performance against its service
usage performance.
which the billing metric was calculated, the denominator of the
billing metric has consistently grown, too, thereby skewing the
metric. The longer the delay before a given error is credited to a
CLEC, the argument goes, the smaller the effect that error pro-
duces upon the billing metric. The result is that the billing metric
systematically understates Verizon’s error rates. This argument is
not properly before us because Z–Tel did not present it to the
Commission. See 47 U.S.C. § 405(a)(2).

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The first passage Z–Tel cites (in ¶ 15 of the Order) provides
no support whatsoever for its argument. There the Commis-
sion stated it ‘‘believe[s] that Verizon ultimately satisfies its
evidentiary burden for wholesale billing and, in combination
with its strong [service usage] performance, complies with the
OSS billing requirements.’’ The context makes clear that the
Commission independently evaluated Verizon’s wholesale bill-
ing performance and its service usage performance. In ¶ 13
of the Order the Commission lists the two OSS billing re-
quirements: service usage and wholesale billing. Because
Verizon’s service usage performance was excellent, the Com-
mission discussed it only in ¶ 14, concluding that ‘‘Verizon
provides its competitors with non-discriminatory access to
service usage data.’’ Verizon’s wholesale billing performance
was a much closer issue, which the Commission discussed at
length (in ¶ ¶ 15–42). The Commission provided a preview of
the result in ¶ 15, however: Verizon ‘‘satisfies its evidentiary
burden for wholesale billing and,’’ because it had already
satisfied its burden for service usage, it ‘‘complies with the
OSS billing requirements.’’
The other passage Z–Tel identifies is in ¶ 37 of the Order:
Ultimately, the competitive LECs challenging Veri-
zon’s wholesale billing performance contend that, despite
improved performance in billing accuracy, Verizon’s re-
cent improvements to its BOS BDT billing system have
not been sufficiently commercially tested. According to
these parties, we should insist on reviewing several
months of commercial performance evidence to deter-
mine whether Verizon’s latest modifications have suffi-
ciently improved the manner in which Verizon bills its
wholesale customers. As stated above, although we ac-
knowledge that the evidentiary showing that Verizon
relies on makes this issue a close call, we find the
evidence minimally sufficient, especially in light of the
showing it has made for billing as a whole.
Z–Tel argues that by ‘‘the showing [Verizon] has made for
billing as a whole’’ the Commission could only have meant
Verizon’s showing with regard to the other aspect of the

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‘‘billing’’ function of OSS, namely service usage reporting.
Although that is one possible reading of the sentence, we do
not think it is a required one. As we explained above,
‘‘billing’’ is one of the requirements of OSS, and ‘‘wholesale
billing’’ is one of the components of ‘‘billing.’’ The Commis-
sion and the commenters discussed various aspects of ‘‘whole-
sale billing’’: BOS BDT billing versus retail-formatted billing,
billing timeliness versus billing accuracy, and so on. The
word ‘‘billing,’’ when used in connection with § 271 proceed-
ings, simply has too many layers of meaning to assume, as Z–
Tel does, that by ‘‘billing as a whole’’ the Commission meant
the billing function of OSS.
Moreover, the words ‘‘as stated above’’ can refer only to the
Commission’s statement in ¶ 15: ‘‘Although as an evidentiary
matter this finding is a close call, we believe that Verizon
ultimately satisfies its evidentiary burden for wholesale billing
and, in combination with its strong [service usage] perfor-
mance, complies with the OSS billing requirements.’’ As
already discussed, this statement does not support Z–Tel’s
position at all. In short, although ¶ 37 is not clear when
viewed in isolation, the Commission had already stated in ¶ 15
it was evaluating service usage performance and wholesale
billing performance independently, just as Z–Tel argues it
should have done. No harm, no foul.
D. Additional Comfort
Z–Tel also objects to the Order insofar as the Commission
stated that it gained confidence in Verizon’s compliance with
the checklist based upon cited evidence that was not properly
in the record (because it was submitted too late). Specifical-
ly, the Commission stated in a footnote that ‘‘information
about TTT billing cycles [after June] does provide additional
confirmation of Verizon’s satisfaction of its obligations under
section 271(c).’’ Id. ¶ 7 n.20. Elsewhere the Commission
stated that it took ‘‘additional comfort’’ and gained ‘‘additional
confidence’’ from Verizon’s ‘‘voluntarily committing to a series
of undertakings aimed at ensuring continued acceptable per-
formance.’’ Id. ¶ 41. Although the Commission explicitly
stated in the Order that it was not relying upon this evidence,

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id., Z–Tel nevertheless insists the Commission’s ‘‘unacknowl-
edged reliance’’ upon evidence not properly before it requires
reversal.
As the Commission points out, Z–Tel’s argument is fore-
closed by AT&T Corp., 220 F.3d at 625. The appellants in
that case made a similar argument about similar statements
in the similar order there under review. We took the Com-
mission at its word when it similarly stated in the order that
it was not relying upon evidence it had described as providing
it with ‘‘further assurance.’’ Id. So, too, in this case, though
we do hope the Commission avoids in the future the necessity
to distinguish between deriving additional comfort from, and
relying upon, evidence not properly before it.
E. Department of Justice Report
Section 271(d)(2)(A) of Title 47 requires the Commission, in
deciding whether to grant an application under § 271, to
consult with the Attorney General and to ‘‘give substantial
weight to the Attorney General’s evaluation, but such evalua-
tion shall not have any preclusive effect on any Commission
decision.’’ The evaluation the Department of Justice submit-
ted in connection with Verizon’s application concluded that
‘‘one important issue remains unresolved,’’ that is, ‘‘Verizon
filed its Pennsylvania application with the FCC without suffi-
cient evidence to show that numerous problems with its
wholesale billing systems have been corrected.’’ Evaluation
of the U.S. Dep’t of Justice 2, 3. The Department went on to
say that it ‘‘realizes TTT the Commission is likely to have
further information prior to reaching a decision in this mat-
ter. Accordingly, we do not foreclose the possibility that the
Commission may be able to approve Verizon’s application at
the culmination of these proceedings.’’ Id. at 3.
Z–Tel argues the Commission failed to give this evaluation
‘‘substantial weight.’’ It reasons that (1) Commission prece-
dents preclude finding an application complies with § 271 in
the face of a contradictory evaluation by the Department of
Justice unless the applicant files additional evidence; (2) the
filing of any additional evidence would be a violation of the
complete when filed rule (an argument of which we have

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already disposed); and (3) the Commission could not consider
additional evidence anyway because to do so would involve
‘‘consider[ing] evidence not in the record at the time of the
DOJ consultation.’’
Z–Tel’s first contention, the validity of which we shall
assume for the sake of the argument, is irrelevant in this case
because the Commission did consider other evidence to which
the Department was not exposed, on the basis of which it
came to a different conclusion – a possibility expressly antici-
pated in the Department’s report. To hold that the Commis-
sion’s consideration of such evidence deprived the Depart-
ment of a meaningful opportunity to comment upon the
application would be to elevate the status of its report from
advisory to controlling, contrary to the expressed intention of
the Congress. See 47 U.S.C. § 271(d)(2)(A); AT&T Corp.,
220 F.3d at 627.
F. Weight of Commercial Performance Data
Z–Tel also claims the Commission did not follow its own
stated practice, reiterated in this very case, Order ¶ 24, of
giving greater weight to ‘‘commercial performance data’’ than
to other types of information. Because, Z–Tel claims, the
commercial performance data before the Commission demon-
strated that Verizon’s billing practices were inadequate, the
Commission erred when it relied upon ‘‘third-party testing’’ –
the PWC and KPMG studies – to grant Verizon’s application.
As the Commission explained in the Order, however, it
determined only that it could not rely ‘‘exclusively’’ upon
‘‘past commercial performance data because TTT Verizon has
made significant changes to its wholesale billing systems in
the most recent months leading up to [its] application.’’ Id.
The Commission nevertheless did rely upon past commercial
performance data to some extent. Id. ¶ ¶ 25–30. The Com-
mission has considerable discretion in weighing the evidence
before it. AT&T Corp., 220 F.3d at 616. Insofar as the
Commission is bound by previous statements of how it weighs
evidence, the Commission adequately explained any depar-
ture from past practice in this case.

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G. Sufficiency of the Evidence
Finally, Z–Tel maintains the Commission erred in finding
Verizon presented evidence sufficient to justify a determina-
tion that its wholesale billing complied with the requirements
of § 271. Initially we note that the parties disagree about
the standard of review. The Commission lays claim to the
‘‘special deference’’ we gave it in reviewing the § 271 pro-
ceeding in AT&T Corp., 220 F.3d at 616; Z–Tel implicitly
disagrees by arguing there is ‘‘not substantial evidence to
support the grant of the Application.’’
We need not decide whether the ‘‘special deference’’ to
which we referred in AT&T Corp. is applicable in this case
because the Commission’s decision is supported by substan-
tial evidence, conventionally conceived. The Commission
based its decision to grant Verizon’s application upon the
February through June trend data, Order ¶ ¶ 26–27, the PWC
and KPMG studies, id. ¶ ¶ 31–36, and evidence of Verizon’s
software fixes and manual review process, id. ¶ 38. These
submissions provide substantial evidence supporting the Com-
mission’s finding that Verizon is able to deliver a BOS BDT
bill that is readable, accurate, and auditable. The February
through June data showed that the dollar value of all disputes
submitted by CLECs, expressed as a percentage of the dollar
value of their bills, decreased from approximately 27% in
February to approximately 2% in June. The May and June
dispute rates compared favorably to the rates in New York,
where Verizon had already received § 271 authority. More-
over, the rate for certain types of errors in what the Commis-
sion identified as Verizon’s ‘‘historic problem areas,’’ id. ¶ 26,
also declined – indeed, to amounts that the Commission
reasonably found were ‘‘relatively nominal both in dollar value
and as a percentage of current charges billed.’’ Id. Veri-
zon’s software fixes and manual review process provided an
explanation for this trend of marked improvement and sug-
gested it was likely to continue. Finally, the third-party
studies indicated that Verizon’s BOS BDT data were readable
and auditable.

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Z–Tel does not challenge the Commission’s findings head-
on. Instead it argues that (1) the Commission ignored prob-
lems that would make it more difficult for CLECs to audit
their bills; (2) the PWC studies should not have been given
significant weight because their results were neither detailed
nor unequivocal; and (3) the ‘‘avalanche’’ of critical comments
that it and other CLECs submitted outweighed any favorable
data submitted by Verizon. None of these arguments
amounts to anything. As for the first point, the Commission
addressed the auditing problems (in ¶ 39 of the Order),
agreeing with CLECs that at that time ‘‘a precise accounting
for all possible charges’’ was not possible, but noting that the
‘‘amounts involved TTT [were] nominal and [had] been consis-
tently decreasing.’’ The second point goes principally to the
weight of the evidence, a matter peculiarly within the prov-
ince of the Commission, which resolved it reasonably. See
Order ¶ ¶ 35–36. The third point is essentially a challenge to
the Commission’s decision to weigh recent data more heavily
than older data – a reasonable approach if ever there was
one.
Z–Tel’s final effort to exclude the February through June
trend data is its claim the Commission’s rules require any
data submitted to the agency be supported by an affidavit and
accompanied by an explanation of how they were produced.
See Updated Filing Requirements, 16 F.C.C. Rcd. at 6926.
The February through June trend data were contained in
Verizon’s August 17 submission, an unsworn letter signed by
Dee May, Verizon’s Executive Director for Federal Regulato-
ry matters.
This objection has been forfeit. There is no indication any
commenter drew it to the attention of the Commission until
the matter reached this court. We shall not reverse the
Commission for failing to follow one of its own procedural
rules when that failure was not the subject of an objection by
any interested party. See 47 U.S.C. § 405(a)(2).
III. Conclusion
For the foregoing reasons the Order of the Commission is
Affirmed.

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