198 F.3d 921 (D.C. Cir. 1999)
Virgin Islands Telephone Corporation, Petitionerv.Federal Communications Commission and United States of America, RespondentsAT&T Corporation, Intervenor
No. 98-1575
United States Court of AppealsFOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 13, 1999Decided December 21, 1999

On Petition for Review of an Order of the Federal Communications Commission
Daniel E. Troy argued the cause for petitioner.  With him  on the briefs was Carl J. Hartmann, III.
Lisa A. Burns, Counsel, Federal Communications Commission, argued the cause for respondents.  With her on the brief were Christopher J. Wright, General Counsel, John E.  Ingle, Deputy Associate General Counsel, Joel I. Klein, Assistant Attorney General, U.S. Department of Justice, and Robert B. Nicholson and Robert J. Wiggers, Attorneys. Daniel M.  Armstrong, Associate General Counsel, Federal Communications Commission, and Pamela L. Smith, Counsel, entered  appearances.
Gene C. Schaerr, Mark C. Rosenblum, and James J.R.  Talbot were on the brief for intervenor.
Before:  Sentelle, Rogers and Tatel, Circuit Judges.
Opinion for the Court filed by Circuit Judge Rogers.
Rogers, Circuit Judge:


1
Petitioner, the Virgin Islands Telephone Corporation, is a provider of local telephone service in  the U.S. Virgin Islands.  AT&T Submarine Systems, Inc.  ("AT&T-SSI"), a wholly-owned subsidiary of intervenor,  AT&T Corporation, constructs and maintains undersea fiber  optic telecommunications cable systems, or, submarine cable  systems.  In this appeal, petitioner contends that in granting  AT&T-SSI's application for cable landing rights as a noncommon carrier, the Federal Communications Commission  ("Commission") ignored Congress' clear directive in the 1996  Telecommunications Act ("1996 Act") to apply a new regime  for distinguishing between common carrier and private carrier services.  Petitioner maintains that, under the 1996 Act,  "telecommunications services" is defined in a manner that no  longer permits the Commission to apply the two-part test of  National Association of Regulatory Utility Commissioners v.  FCC, 525 F.2d 630 (D.C. Cir. 1976) ("NARUC I").  In petitioner's view, AT&T-SSI would be offering telecommunications "to such classes of users as to be effectively available  directly to the public" as defined by the 1996 Act if its  customers used the capacity they bought from AT&T-SSI to  provide service to the public.  Because the Commission's  interpretation of an ambiguous new term in the 1996 Act to  mean "essentially" the same thing as "common carrier"--and  thus governed by the NARUC I framework--is reasonable,  we deny the petition.

I.

2
AT&T-SSI filed with the Commission an application for  authority to land and operate a submarine cable system  extending between St. Thomas and St. Croix in the Virgin  Islands, pursuant to 47 U.S.C.  34 (1994).1  In the application, AT&T-SSI expressed its intention to sell the capacity to  common carriers on an indefeasible right of use ("IRU")  basis.2  Petitioner and TelefOnica Larga Distancia de Puerto  Rico, Inc. ("TLD"), a long distance service provider in the  U.S. Virgin Islands-Puerto Rico market, filed petitions to  deny AT&T-SSI's application.  Petitioner and TLD asserted  that the proposed submarine cable system should be operated  on a common carrier basis and that AT&T-SSI should accordingly resubmit its application and seek authorization to  construct or operate the proposed system under 47 U.S.C.   214.3  Shortly after the petitions to deny were filed, petitioner filed a petition for a declaratory ruling that the proposed submarine cable system should be operated as a common carrier facility.


3
While the AT&T-SSI application was pending, Congress  enacted the Telecommunications Act of 1996, Pub. L. No.  104-104, 110 Stat. 56 (codified in scattered sections of 47  U.S.C.) ("1996 Act").  The 1996 Act, among other things,  introduced two new terms, "telecommunications carrier" and  "telecommunications service," and defined them as follows:


4
The term "telecommunications carrier" means any provider of telecommunications services, except that such term does not include aggregators of telecommunications services (as defined in section 226 of this title).  Atele communications carrier shall be treated as a common carrier under this chapter only to the extent that it is engaged in providing telecommunications services, except that the Commission shall determine whether the provision of fixed and mobile satellite service shall be treated as common carriage.


5
47 U.S.C.  153(44) (Supp. III 1997).


6
The term "telecommunications service" means the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used.


7
Id.  153(46).  For the purposes of this appeal, the key  aspects of these definitions are that "any provider of telecommunications services," except for "aggregators" of such services, is designated a "telecommunications carrier" and that  to the extent that a telecommunications carrier is engaged in  providing "telecommunications services," it "shall be treated  as a common carrier."  Id.  153(44).  In other words, whether a carrier will be subject to common carrier regulation  pursuant to  153(44) turns on whether it offers "telecommunications for a fee directly to the public, or to such classes of  users as to be effectively available directly to the public."  Id.   153(46).


8
The International Bureau ("Bureau") granted AT&T-SSI's  application for a cable landing license on a non-common  carrier basis.  See AT&T Submarine Systems, Inc., 11  F.C.C.R. 14885 p 1 (1996) ("Bureau Order").4  Observing that  "[t]he Commission has not yet addressed the issue of how, if  at all, the 1996 Act's introduction of the concept of a 'telecommunications carrier' affects the applicability of NARUC I  standard," id. p 15, the Bureau decided that, in any event,  AT&T-SSI is not a common carrier because it is neither a  "telecommunications carrier" under the 1996 Act nor a "common carrier" under the NARUC I standard.  Id. pp 13-15.


9
In examining whether AT&T-SSI is a "telecommunications  carrier," or a provider of "telecommunications service," under  the 1996 Act, the Bureau looked to the Commission's interpretation of the term "commercial mobile service," as defined  in the Omnibus Budget Reconciliation Act of 1993, Pub. L.  No. 103-66, Title VI, 107 Stat. 312, 379-401 (codified in  scattered sections of 47 U.S.C.) ("1993 Budget Act").  The  1993 Budget Act defined "commercial mobile service" as "any  mobile service ... that is provided for profit and makes  interconnected service available (A) to the public or (B) to  such classes of eligible users as to be effectively available to a  substantial portion of the public, as specified by regulation by  the Commission."  47 U.S.C.  332(d)(1).  The Commission  subsequently read "available ... to the public" as "offered  without restriction on who may receive it" and declared that  whether a service was available to "such classes of eligible  users as to be effectively available to a substantial portion of  the public" depended on "several relevant factors such as the type, nature, and scope of users for whom the service is  intended."  Implementation of Sections 3(n) and 332 of the  Communications Act, Regulatory Treatment of Mobile Services, 9 F.C.C.R. 1411 p 265 (1994) ("CMRS Order").  The  Commission also stated that a service will not be considered  "available to the public" or "effectively available to a substantial portion of the public" if it is "provided only for internal  use or only to a specified class of eligible users under the  Commission's Rules."  Id.


10
Noting the similarity in the definitions of the terms "telecommunications service" and "commercial mobile service," the  Bureau concluded that under the 1996 Act, "whether a service  is effectively available directly to the public depends on the  type, nature, and scope of users for whom the service is  intended and whether it is available to 'a significantly restricted class of users.' "  Bureau Order p 25.  The Bureau applied  these criteria to AT&T-SSI's proposed facility and found  that:


11
AT&T-SSI ... will make available bulk capacity in itssystem to a significantly restricted class of users, includ-ing common carrier cable consortia, common carriers,and large businesses.  Potential users are further limitedbecause only consortia, common carriers, and large busi-nesses with capacity in interconnecting cables or otherfacilities and, in many cases, operating agreements withforeign operators, will be able to make use of the cable asa practical matter.


12
Id.  The Bureau rejected the argument that AT&T-SSI will  be making a service effectively available directly to the public  because AT&T-SSI's customers will use the capacity to provide a service to the public, noting that "[s]uch an interpretation is contrary to the plain language of the [1996 Act] by  focusing on the service offerings AT&T-SSI's customers may  make rather than what AT&T-SSI will offer."5  Id. p 26.  Therefore, the Bureau concluded that AT&T-SSI will not be  offering a service "directly to the public, or to such classes of  users to be effectively available directly to the public" and  that, consequently, AT&T-SSI is not a "telecommunications  carrier" providing "telecommunications service" under the  1996 Act.  Id. p 29.


13
The Bureau then considered whether AT&T-SSI should  nevertheless be regulated as a common carrier under  NARUC I.  The NARUC I test has two parts:  "[W]e must  inquire, first, whether there will be any legal compulsion ...  to serve [the public] indifferently, and if not, second, whether  there are reasons implicit in the nature of [the] operations to  expect an indifferent holding out to the eligible user public."NARUC I, 525 F.2d at 642.  The Commission has subsequently interpreted this two-part test to mean that a carrier  has to be regulated as a common carrier if it will "make  capacity available to the public indifferently" or if "the public  interest requires common carrier operation of the proposed  facility."  Cable & Wireless, PLC, 12 F.C.C.R. 8516 pp 14-15  (1997).  The Bureau, applying the two-part test, decided that  neither prong of the NARUC I standard was applicable to  AT&T-SSI's proposed system and that the proposed system  may thus be offered on a non-common carrier basis.  See  Bureau Order p 69.  The Bureau added, however, that it  retained "the right to change the regulatory status of the  cable system to common carrier should conditions change in  the future."  Id. p 2.


14
The Commission denied petitioner's application for review,  agreeing with the Bureau that the 1996 Act did not require it  to regulate AT&T-SSI as a common carrier and that "there  are no other public interest reasons for doing so."  AT&T  Submarine Systems, Inc., 13 F.C.C.R. 21585 p 1 (1998)  ("Commission Order").  In the Commission's view, as it had  previously held in Cable & Wireless, "the term 'telecommunications carrier' means essentially the same as common carrier" and "does not ... introduce a new concept whereby we must look to the customers' customers to determine the  status of a carrier."  Commission Order p 6 (citing Cable &  Wireless p 13).  The Commission accordingly proceeded to  apply the traditional NARUC I two-part test to determine  whether AT&T-SSI should be regulated as a common carrier  under the 1996 Act.


15
First, the Commission asked, under the second part of the  NARUC I test, whether AT&T-SSI "intend[ed] to make  'individualized decisions, whether and on what terms to  serve.' "  Id. p 7 (citation omitted).  Noting that the Bureau  had found that "AT&T-SSI would have to engage in negotiations with each of its customers on the price and other terms  which would vary depending on the customers' capacity  needs, duration of the contract, and technical specifications,"  id. p 8, the Commission found that AT&T-SSI "will not sell  capacity in the proposed cable indifferently to the public."Id.  The Commission thus concluded that the second part of  the NARUC I test did not require that AT&T-SSI be regulated as a common carrier.  See id.


16
Next, the Commission considered whether, under the first  part of the NARUC I test, "the public interest requires  common carrier operation of the facility."  Id. p 9.  The  Commission focused its inquiry on whether AT&T-SSI "has  sufficient market power to warrant regulatory treatment as a  common carrier."  Id.  The Commission concluded that because "sufficient alternative facilities" to service the St.  Thomas to St. Croix route are available, "AT&T-SSI does not  have market power," Id. p 11, and the first part of the  NARUC I test does not require that AT&T-SSI be regulated  as a common carrier.  See id.

II.

17
Petitioner principally contends that the Commission's decision to apply the NARUC I test to find that AT&T-SSI does  not offer "telecommunications services" ignored both the  plain language of the 1996 Act and the congressional intent to  replace the traditional NARUC I test with a new statutory  standard that effects a drastic change in the regulatory regime.6  Further, petitioner maintains that the Commission  has ruled in other contexts that providers offering services  similar to AT&T-SSI's services are "telecommunications carriers" under the 1996 Act and that the Commission failed to  follow its own precedent without adequate explanation.  We  apply the now familiar standard of review articulated in  Chevron U.S.A. Inc. v. Natural Resources Council, Inc., 467  U.S. 837 (1984).


18
The parties agree that AT&T-SSI does not sell its capacity  "directly to the public," and hence the question before the  Commission was whether AT&T-SSI's business activities  constitute an "offering of telecommunications ... to such  classes of users as to be effectively available directly to the  public."  The first inquiry under Chevron is "whether Congress has directly spoken to the precise question at issue."Id. at 842.  Neither the text nor legislative history of the 1996  Act shows that Congress has decided whether the activities  by AT&T-SSI constitute a "telecommunications service."The phrase "to such classes of users as to be effectively  available directly to the public" is sufficiently vague and openended to leave the precise issue of how to treat AT&T-SSI  undecided.  Taken at face value, the legislative history offers  little additional guidance because it simply states that the  definition of telecommunications service "recogniz[es] the distinction between common carrier offerings that are provided  to the public ... and private services."  H.R. Conf. Rep. No.  104-458, at 115 (1996).


19
Consequently, petitioner's contention that the Commission  failed to follow what the text of the 1996 Act "unambiguously"  requires is exaggerated.  Petitioner claims that "the statutory language requires ... an examination of the 'class of users'  served by" AT&T-SSI and that the Commission's refusal to  look at the activities of AT&T-SSI's customers thus amounted to a disregard of the statutory directive.  Although the  plain language of the statute does not preclude petitioner's reading, neither does it compel such a result.  The phrase  "effectively available directly to the public" can be reasonably  read instead as reflecting the NARUC I court's emphasis that  "carriers need not serve the whole public" to be classified as  common carriers.  NARUC I, 525 F.2d at 642 (citation omitted).  The court, after stating that "[w]hat appears to be  essential to ... the common carrier concept is that the  carrier 'undertakes to carry for all people indifferently,' " id.  at 641 (citation omitted), stressed that "[t]his does not mean  that a given carrier's services must practically be available to  the entire public."  Id.  The court then added, "It is not  necessary that a carrier be required to serve all indiscriminately;  it is enough that its practice is, in fact, to do so."  Id.  (citation omitted).  Given that the statute's distinction between "directly available to the public" and "effectively available directly to the public" can be read as reflecting the  NARUC I court's distinction between serving the entire  public and serving only a fraction of the public, it is reasonable to read the statute as adopting the NARUC I framework.  Therefore, petitioner's contention that the statute  requires the Commission to examine AT&T-SSI's customers'  activities to determine AT&T-SSI's status attributes more  determinative force to the language of the statute than is  warranted.


20
Because the 1996 Act is silent with respect to the issue of  whether AT&T-SSI should be treated as a common carrier,  the question under Chevron becomes "whether the agency's  answer is based on a permissible construction of the statute."Chevron, 467 U.S. at 843.  The Commission construed the  term "telecommunications carrier" by reasoning that it  "means essentially the same as common carrier" and that it  does not "introduce a new concept whereby we must look to  the customers' customers to determine the status of a carrier."  Commission Order p 6.  As support for its conclusion,  the Commission looked to its decision in Cable & Wireless,  where it had concluded that the definition of "telecommunications services" in the 1996 Act was "intended to clarify that  telecommunications services are common carrier services,"  Cable & Wireless p 13, citing the above-mentioned legislative history that "the definition of telecommunications service  'recognizes the distinction between common carrier offerings  that are provided to the public ... and private services.' "Id. (quoting H.R. Conf. Rep. No. 104-458, at 115).  Reasoning  from this statement in the legislative history, the Commission  viewed the definition of "telecommunication services," that is,  "the offering of telecommunications for a fee directly to the  public or to such classes of users as to be effectively available  directly to the public," to be essentially a way of restating the  definition of common carrier as clarified by NARUC I.


21
Although the Commission has not provided a detailed explanation of its interpretation of the statute in the decision  under review, the rationale in Cable & Wireless, on which the  Commission relies, constitutes a permissible construction of  the statute.  As discussed, Cable & Wireless based its reading  primarily on the legislative history of the 1996 Act.  The  Conference Report stated that the definition of telecommunications service "recogniz[es] the distinction between common  carrier offerings that are provided to the public ... and  private services."  H.R. Conf. Rep. No. 104-458, at 115.  This  emphasis on the distinction between the public and the private echoes the NARUC I court's discussion of the term  "common carrier."  The NARUC I court, in discussing the  concept of "common carrier," stated that "the critical point is  the quasi-public character of the activity involved," NARUC  I, 525 F.2d at 641, and referred to phrases like "a sort of  public trust," "availing themselves of the business of the  public at large," and "the public's business" to elucidate the  concept.  Id. at 641-42.  In addition, the court used the  phrase "public-private dichotomy" to describe "the distinction  between common carrier and non-common carrier operators."Id.  Although the Commission's decision here did not explicitly make this point, the legislative history that Cable &  Wireless relied on can be reasonably construed as manifesting  Congress' intention to maintain the basic public-private dichotomy of NARUC I.


22
We disagree with petitioner's contention that the Commission's use of the NARUC I test constitutes a failure to give  meaning to the definition of "telecommunications service."  It is true that the Commission never explained in detail how its  interpretation corresponded to the specific text of the relevant provision.7  However, the Commission implicitly gave  meaning to the statutory language by applying the NARUC I  test.  Under the NARUC I test, the key determinant whether a carrier is a common carrier is "the characteristic of  holding oneself out to serve indiscriminately," NARUC I, 525  F.2d at 642, and whether a carrier is offering services "directly to the public" or making them "effectively available directly  to the public" is irrelevant for the purpose of determining  one's common carrier status.  In other words, under the  Commission's reading of the statute, the emphasis is on the  phrase "to the public" that appears in both "directly to the  public" and "effectively available directly to the public," and  the difference between "directly" and "effectively available  directly" is important merely for the purpose of emphasizing  the proposition that "common carriers need not serve the  whole public."  Id. (emphasis added) (citation omitted).  This  is a reasonable reading of the statute, and petitioner's repeated demand that the Commission articulate an interpretation of "effectively available directly to the public" that is  separate from "directly to the public" evinces its failure to  comprehend the structure of the NARUC I test and the  Commission's application of it.


23
To the extent that petitioner's challenge rests on the assumption that if all Congress had intended was to clarify the  phrase "common carrier" it would not have introduced a new  term, it fares no better.  First, the two terms, "telecommunications carrier" and "common carrier" are not necessarily  identical, and, as intervenor AT&T Corporation urges, we  need not decide today what differences, if any, exist between  the two.  Second, as the Commission points out in its brief,  the concept of "common carrier" has not been eliminated by  the 1996 Act because "the core provisions of Title II of the 1934 [Communications] Act ... remain in the Act and address the duties of 'common carriers.' "  The Commission's  theory that Congress attempted to retain the familiar concept  of "common carrier" and yet redefine it in a way that is  clearer thus seems plausible.  Whether this is the most  elegant way of providing clarification is, of course, not the  issue.


24
Finally, petitioner's contention that in granting AT&T SSI's application, the Commission departed from its own  precedent without adequate explanation is unpersuasive. First, petitioner refers to the Commission's rulemaking in  CMRS Order, which interpreted the term "commercial mobile  service" defined by Congress as:  "any mobile service ... that  is provided for profit and makes interconnected service available (A) to the public or (B) to such classes of eligible users as  to be effectively available to a substantial portion of the  public, as specified by regulation by the Commission."  47  U.S.C.  332(d).  Petitioner contends that the Commission's  rulemaking order indicates that it "recognized that by introducing the new concept of CMRS, Congress intended to alter  the [Commission's] method for determining which carriers  would be subject to common carrier regulation" and "that the  phrase 'effectively available' to the public brought within the  definition of CMRS services reaching the public either directly or indirectly-like wholesale services."  Thus, petitioner  implies that because AT&T-SSI's planned activities with the  proposed cable system can be characterized as wholesale  services, AT&T-SSI, too, should be treated as a common  carrier in this case.


25
Although petitioner's discussion of the CMRS Order in its  opening brief implies the objection just outlined, petitioner  never explicitly contends that the Commission's decision is  inconsistent with the CMRS Order.  Therefore, petitioner  may have waived this particular argument.  See Corson &  Gruman Co. v. NLRB, 899 F.2d 47, 50 n.4 (D.C. Cir. 1990)  (per curiam).  Even if petitioner has not waived it, it is  meritless.  Petitioner's contention that the Commission considered "effectively available to the public" to include wholesale services mischaracterizes the CMRS Order.  Nowhere in that decision is there a statement or suggestion that services  reaching the public indirectly, such as wholesale services, fall  within the meaning of "effectively available to the public."See CMRS Order pp 65-70.  Furthermore, even if petitioner  were correct that the CMRS decision considered wholesale  services to be covered by the phrase "effectively available to  the public," it is unclear why that is inconsistent with the  decision on appeal.  Unlike petitioner, who assumes a wholesaler-retailer distinction throughout its briefs, neither the  Bureau nor the Commission relied on the distinction for its  decision.  Instead, the Commission focused on the NARUC I  test of whether there is an offering of "indiscriminate service"  to the public, leaving open the possibility of characterizing a  type of wholesaler as a common carrier.  Therefore, a mere  showing that a previous decision characterized a wholesaler  as a common carrier is insufficient to demonstrate an inconsistency between the Order and the previous decision.


26
Petitioner's further contention that the Commission misapplied the principle announced in the CMRS Order is to no  avail.  Despite the similarities in the language of the provisions considered in the CMRS Order and the Commission  Order, they are not identical:  the CMRS Order interpreted  the phrase "effectively available to a substantial portion of the  public," 47 U.S.C.  332(d)(1), whereas the Commission Order interpreted "effectively available directly to the public."47 U.S.C.  153(46).  Therefore, the terms of the provisions  by themselves do not compel the Commission to interpret  them in an identical manner.


27
It is true that the Bureau arrived at its decision, in part, by  drawing an analogy to the definition of "commission mobile  service" as read by the CMRS Order, see Bureau Order  pp 24-25, and the Commission's brief even states that "the  Commission expressly affirmed" the Bureau's discussion of  the CMRS Order.  To the extent that the Commission followed the analysis provided in the CMRS Order, it may be  argued that the Commission was obliged to apply the CMRS  Order's standard correctly.  But, in our view, the Commission  never relied on the CMRS Order.  Although the Commission  affirmed the Bureau's decision, it did not adopt the entirety of the Bureau's rationale. The Bureau's decision was that  AT&T-SSI was neither a telecommunications carrier under  the 1996 Act nor a common carrier under the NARUC I  framework.  The two legal authorities--the 1996 Act and  NARUC I--were treated as requiring separate tests, and the  Bureau's decision was based primarily on the fact that the  two tests, independent from each other, led to the same  conclusion.  See Bureau Order pp 13, 15.  In fact, the Bureau  expressed uncertainty concerning the exact relationship between the 1996 Act and the NARUC I test.  See id. p 15.  By  contrast, the Commission harbored no such uncertainty, and  expressly articulated the relationship between the 1996 Act  and the NARUC I test by stating that " 'telecommunications  carrier' means essentially the same as common carrier,"  Commission Order p 6, and then proceeded to apply the  NARUC I test.  Therefore, unlike the Bureau, the Commission never relied on the CMRS Order for its decision in the  first place, and the Commission thus never imposed on itself a  requirement to follow the standard announced in the CMRS  Order.


28
No more successful is petitioner's contention that the Commission's position is inconsistent with its decisions in FederalState Joint Board on Universal Service, 12 F.C.C.R. 87  (1996) ("Universal Service Recommended Decision"), and  Implementation of the Non-Accounting Safeguards of Sections 271 and 272 of the Communications Act of 1934, as  amended, 11 F.C.C.R. 21905 (1996) ("Non-Accounting Safeguards Order").  Again, petitioner's challenges erroneously  rely on the assumption that the Commission's decision turned  on the fact that AT&T-SSI could be characterized as a  wholesaler, when, in fact, no such wholesaler-retailer distinction is assumed by the Commission.


29
The source of the confusion is petitioner's failure to distinguish between a "recommended decision" and an "order."Universal Service Recommended Decision stated that wholesale carriers' activities "are included in the phrase 'to such  classes of eligible users as to be effectively available to a  substantial portion of the public,' " and that carriers that  "lease capacity to other carriers ... would be considered carriers that provide ... telecommunications services."  Universal Service Recommended Decision p 788 (quoting 47  U.S.C.  153(46)).  However, such recommendations were not  adopted by the Commission until it released Federal-State  Joint Board on Universal Service, 12 F.C.C.R. 8776 (1997)  ("Universal Service Order").  Although the Universal Service  Order adopted most of the recommendations contained in the  Universal Service Recommended Decision, the Commission  rejected the portion of the analysis that petitioner cites. Instead, the Commission observed that "the definition of  'telecommunications services' ... is intended to encompass  only telecommunications provided on a common carrier basis," Universal Service Order p 785, and, accordingly, "private  network operators that lease excess capacity on a noncommon carrier basis" are not telecommunications carriers  under the 1996 Act because they are not "common carriers."Id. p 786.  While the Commission acknowledged that common  carriers' customers need not be "end users" and that "[c]ommon carrier services include services offered to other carriers," it emphasized that "a carrier may be a common carrier  if it holds itself out to service indifferently all potential users,"  and that "a carrier will not be a common carrier where its  practice is to make individualized decisions in particular cases  whether and on what terms to serve."  Id. p 785 (quotations  omitted).


30
Petitioner's contention that the Commission's Non Accounting Safeguards Order is inconsistent with the Commission Order at issue does not work, either.8  The relevant portions of Non-Accounting Safeguards Order, if anything,  are very similar to the Commission Order.  For instance, the  Commission noted in the Non-Accounting Safeguards Order  that "the definition of telecommunications services is intended to clarify that telecommunications services are common carrier services."  Non-Accounting Safeguards Order p 263.  It  also stated that the term "telecommunications service" created a distinction between "common and private carriage."  Id.  p 265.  It did observe that common carrier services "include  wholesale services to other carriers," id. p 263, that "the term  'telecommunications service' was not intended to create a  retail/wholesale distinction," id. p 265, and that "[n]either the  Commission nor the courts ... has construed 'the public' as  limited to end-users of a service."  Id. However, none of  these statements is inconsistent with the Commission's grant  of AT&T-SSI's application.  Again, the Commission never  relies on a wholesale-retail distinction;  the focus of its analysis is on whether AT&T-SSI offered its services indiscriminately in a way that made it a common carrier under NARUC  I, and the fact that AT&T-SSI could be characterized as a  wholesaler was never dispositive.


31
Accordingly, we deny the petition for review.



Notes:


1
 The statute provides, in pertinent part, that "[n]o person shall  land or operate in the United States any submarine cable directly  or indirectly connecting the United States with any foreign country,  ... unless a written license to land or operate such cable has been  issued by the President of the United States."  47 U.S.C.  34.


2
 The Commission has previously explained IRU interests as  follows:
An IRU interest in a communications facility is a form of acquired capital in which the holder possesses an exclusive and irrevocable right to use the facility and to include its capital contribution in its rate base, but not the right to control the facility or, depending on the particular IRU contract, any right to salvage. Reevaluation of the Depreciated-Original-Cost Standard in Setting Prices for Conveyances of Capital Interests in Overseas  Communications Facilities Between or Among U.S. Carriers, 8  F.C.C.R. 4173 p 2 n.6 (1993).


3
 Section 214(a) provides, in relevant part:
No carrier shall undertake the construction of a new line or of an extension of any line, or shall acquire or operate any line, or extension thereof, or shall engage in transmission over or by means of such additional or extended line, unless and until there shall first have been obtained from the Commission a certificate that the present or future public convenience and necessity require or will require the construction, or operation, or construction and operation, of such additional or extended line.47 U.S.C.  214(a).


4
 The Bureau Order disposed of both the petitions to deny  AT&T-SSI's application and the petition for a declaratory ruling  that the proposed facility must be operated on a common carrier  basis.  See Bureau Order p 8 n.7.


5
 The Bureau also questioned the assumption that AT&T-SSI's  customers would sell the capacity to the public because some of the  "large businesses [to which the capacity will be made available] ...  would not use the capacity to provide service to the public."  Id.  p 26.


6
 Because petitioner does not challenge the substance of the  Commission's NARUC I analysis, we do not reach the question  whether the Commission applied the NARUC I test correctly.


7
 Although the Bureau engaged in a textual analysis of sort by  referring to the CMRS Order, the Commission does not seem to  have adopted the Bureau's analysis of the relationship between the  instant case and the CMRS Order.  See infra pp. 14-15.


8
 As the Commission notes, although the Non-Accounting Safeguards Order was reconsidered in Implementation of the Non Accounting Safeguards of Sections 271 and 272 of the Communications Act of 1934, as amended, 12 F.C.C.R. 8653 (1997), there was  no reconsideration of the initial position relevant to the instant case. We focus on the initial order because it contains a more detailed  discussion of the relevant issue.


