C. 360networks Requested Relief

In this application, 360networks asks the Commission to suspend the existing advice letter procedure and forego any review under § 851 for transfer of assets or transfers of control involving NDIECs and CLCs. Specifically, 360networks asks the Commission to forego review of any transaction involving the sale, lease, mortgage, encumbrance, or disposal by an NDIEC or CLC of its telecommunication facilities to any other public utility. Applicant justifies the request by describing the widespread practice among carriers to enter various agreements to collocate equipment, purchase or lease portions of each others conduits, and make grants of "indefeasible rights to use" (IRU) conduits and associated property. According to 360networks, these "inherently uncontroversial transactions among NDIECs and CLCs...do not need to be regulated by the Commission."⁶ Applicants assert these asset transfers advance the public interest because the joint use of facilities is more economical and reduces construction and related environmental impacts. Furthermore, Applicant argues that the administrative resources required to process what it envisions will be hundreds, if not thousands, of advice letters for these types of transactions would be an unnecessary burden on Commission staff with no corresponding benefit to the public interest. 360networks claims that the rapid increase in the volume of transactions between and among certificated carriers for shared use of facilities and the proliferation of market participants requires the Commission to modify its procedures to reflect current market realities.

In its application, 360networks questions whether all transfers of assets or interests even require review and approval under § 851. Specifically, 360networks speculates that carriers have already entered into hundreds and perhaps thousands of IRUs, shared use and/or joint use arrangements without the Commission's knowledge or prior approval. 360networks cites a Commission order granting resale authority that noted an applicant held certain IRUs and permitted use of them under resale authority.⁷ 360networks extends the language in that citation to imply that IRUs do not require § 851 scrutiny.