47284 Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations

FEDERAL COMMUNICATIONS EFFECTIVE DATE: October 7, 1996, except International Transcription Service, COMMISSION that the collection of information Inc., (202) 857–3800, 2100 M Street subject to approval by the Office of N.W., Suite 140, Washington, D.C. 47 CFR Parts 51 and 52 Management and Budget (OMB) that are 20037. contained in sections 51.211(c), 51.213, [CC Docket No. 96±98, 95±185, 92±237, FCC PAPERWORK REDUCTION ACT: This Second 96±333] 51.217, 51.305(g), 51.307(e), 51.325, Report and Order contains either a new 51.327, 51.329, 51.331, 51.333, 51.335 or modified information collection. The Implementation of the Local and 52.19(b) which are effective Commission, as part of its continuing Competition Provisions of the November 15, 1996. effort to reduce paperwork burdens, Telecommunications Act of 1996 FOR FURTHER INFORMATION CONTACT: For invites the general public and the Office information concerning Dialing Parity, of Management and Budget (OMB) to AGENCY: Federal Communications Nondiscriminatory Access and Network comment on the information collections Commission. Information Disclosure, contact Lisa contained in this order, as required by ACTION: Final rule. Boehley, (202) 418–2320, Network the Paperwork Reduction Act of 1995, SUMMARY: In enacting the Services Division, Common Carrier Public Law No. 104–13. OMB Telecommunications Act of 1996 (1996 Bureau. For information concerning notification of action is due September Act) Congress sought to establish a pro- Numbering Administration contact 6, 1996. Comments should address: (a) competitive, deregulatory national Marian Gordon, (202) 418–2320, whether the new or modified collection policy framework for the Network Services Division, Common of information is necessary for the telecommunications industry. In adding Carrier Bureau. proper performance of the functions of a new Section 251 to the SUPPLEMENTARY INFORMATION: This the Commission, including whether the Communications Act of 1934, Congress Second Report and Order contains new information shall have practical utility; set forth a blueprint for ending or modified information collections (b) the accuracy of the Commission’s monopolies in local subject to the Paperwork Reduction Act burden estimates; (c) ways to enhance telecommunications markets. In this of 1995 (PRA). It has been submitted to the quality, utility, and clarity of the Second Report and Order the the Office of Management and Budget information collected; and (d) ways to Commission adopts rules implementing (OMB) for review under the PRA. OMB, minimize the burden of the collection of certain provisions of Section 251. the general public, and other federal information on the respondents Specifically, this order adopts rules agencies are invited to comment on the including the use of automated requiring local exchange carriers to proposed or modified information collection techniques or other forms of provide dialing parity and collections contained in this information technology. nondiscriminatory access to their proceeding. This is a synopsis of the OMB Approval Number: None. competitors; and requiring incumbent Commission’s Second Report and Order Title: Implementation of the Local local exchange carriers to give public and Memorandum Opinion and Order, Competition Provisions of the notice of certain network changes. In (FCC 96–333) adopted on August 8, Telecommunications Act of 1996— addition, this order adopts rules 1996 and released on August 8, 1996. Second Report and Order and regarding number administration and The full text of this Order is available Memorandum Opinion and Order, CC addresses various petitions concerning for inspection and copying during Dockets No. 96–98 and 95–185. numbering issues. These actions will normal business hours in the FCC Form No.: N/A. serve to implement the statute, Reference Center (Room 239), 1919 M Type of Review: New Collections. eliminate operational barriers to Street, N.W., Washington, D.C. The Respondents: Business or other for- competition, and provide for effective complete text also may be purchased profit, including small businesses, and use of numbering resources. from the Commission’s copy contractor, state and local governments.

No. of Est. time per Total annual Section/title respondents response burden

Dialing parity implementation plans ...... 1,350 100 135,000 Justification for noncompliance ...... 20 9 180 Sharing of directory listings ...... 500 36 18,000 Provision of technical information ...... 500 24 12,000 Public notice of network changes ...... 500 72 36,000 Burden of proof ...... 75 8 600 Submission of area code relief plans ...... 30 40 1,200

Total Annual Burden: 202,980. Table of Contents Table of Contents—Continued Estimated Costs Per Respondent: $0. Section Paragraph Section Paragraph Needs and Uses: The new or modified information collections in this Second I. Introduction and Overview 1 C. Actions Taken to Imple- Report and Order will be used to ensure A. Actions to Implement ment Section 251(e) ...... 18 that affected telecommunications Section 251(b)(3) ...... 4 II. Dialing Parity Requirements 22 carriers fulfill their obligations under 1. Dialing Parity ...... 4 A. In General ...... 22 the Communications Act, as amended. 2. Nondiscriminatory Ac- 1. The Need for Minimum cess ...... 12 Nationwide Dialing Par- Synopsis of Second Report and Order B. Actions to Implement ity Standards ...... 23 Adopted: August 8, 1996. Section 251(c)(5) ...... 16 a. Background and Released: August 8, 1996. Comments ...... 23 Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations 47285

Table of Contents—Continued Table of Contents—Continued Table of Contents—Continued

Section Paragraph Section Paragraph Section Paragraph

b. Discussion ...... 25 G. Unreasonable Dialing b. Discussion ...... 151 2. Scope of the Dialing Delays ...... 96 E. Unreasonable Dialing Parity Requirements ..... 26 III. Nondiscriminatory Access Delay ...... 152 a. Background ...... 26 Provisions ...... 97 1. Definition and Appro- b. Comments ...... 27 A. Definition of the Term priate Measurement c. Discussion ...... 29 ‘‘Nondiscriminatory Ac- Methods ...... 152 B. Implementation of the cess’’ ...... 97 a. Background and Toll Dialing Parity Re- 1. Background ...... 97 Comments ...... 152 2. Comments ...... 98 quirements ...... 31 b. Discussion ...... 156 3. Discussion ...... 101 1. Presubscription Method 2. Specific Technical B. Nondiscriminatory Ac- of Achieving Toll Dial- Standard for Dialing cess to Telephone Num- ing Parity ...... 31 Delay ...... 163 a. Background ...... 31 bers ...... 106 1. Definition ...... 106 a. Background and b. Comments ...... 33 Comments ...... 163 c. Discussion ...... 34 2. Commission Action to Enforce Access to Tele- b. Discussion ...... 164 2. Categories of Domestic, IV. Network Disclosure ...... 165 Long Distance Traffic phone Numbers ...... 107 A. Scope of Public Notice ... 166 Subject to C. Nondiscriminatory Ac- 1. Definition of ‘‘Informa- Presubscription ...... 35 cess to Operator Services 108 tion Necessary for a. Background ...... 35 1. Definition of ‘‘Operator Transmission and Rout- b. Comments ...... 36 Services’’ ...... 108 a. Background and ing’’ ...... 166 c. Discussion ...... 37 Comments ...... 108 a. Background and 3. Separate b. Discussion ...... 110 Comments ...... 166 Presubscription for 2. Definition of ‘‘Non- International Calls ...... 43 b. Discussion ...... 171 discriminatory Access a. Background and 2. Definition of ‘‘Services’’ 175 to Operator Services’’ ... 112 Comments ...... 43 a. Background and a. Background ...... 112 b. Discussion ...... 45 Comments ...... 175 b. Comments ...... 113 b. Discussion ...... 176 4. Full 2-PIC c. Discussion ...... 114 Presubscription Method 46 3. Definition of ‘‘Inter- 3. Commission Action to operability’’ ...... 177 a. Background ...... 46 Ensure Nondiscrim- a. Background and b. Comments ...... 48 inatory Access to Oper- Comments ...... 177 c. Discussion ...... 49 ator Services ...... 119 b. Discussion ...... 178 5. Deployment of Presub- a. Background and scription Software in Comments ...... 119 4. Changes that Trigger Each End Office ...... 51 b. Discussion ...... 121 the Public Notice Re- a. Background ...... 51 4. ‘‘Branding’’ Require- quirement ...... 179 b. Comments ...... 52 ments for Operator a. Background and c. Discussion ...... 54 Services ...... 123 Comments ...... 179 C. Implementation Schedule a. Background ...... 123 b. Discussion ...... 182 for Toll Dialing Parity ...... 55 b. Comments ...... 126 5. Types of Information to 1. Background and Com- c. Discussion ...... 128 be Disclosed ...... 183 ments ...... 55 D. Nondiscriminatory Ac- a. Background ...... 183 2. Discussion ...... 59 cess to Directory Assist- b. Comments ...... 184 D. Implementation of the ance and Directory List- c. Discussion ...... 188 Local Dialing Parity Re- ings ...... 130 B. How Public Notice quirements ...... 64 1. Definition of ‘‘Non- Should be Provided ...... 192 1. In General ...... 64 discriminatory Access 1. Dissemination of Public a. Background ...... 64 to Directory Assistance Notice Through Indus- b. Comments ...... 65 and Directory Listings’’ 130 try Fora and Publica- c. Discussion ...... 67 a. Background ...... 130 tions ...... 192 2. Local Dialing Parity b. Comments ...... 131 a. Background ...... 192 Methodologies ...... 69 c. Discussion ...... 133 b. Comments ...... 193 a. Background and 2. Commission Action to c. Discussion ...... 198 Comments ...... 69 Implement Nondiscrim- 2. When Should Public b. Discussion ...... 71 inatory Access to Direc- Notice of Changes Be 3. Non-Uniform Local tory Assistance and Di- Provided? ...... 203 Calling Areas ...... 72 rectory Listings ...... 138 a. Background ...... 203 a. Background ...... 72 a. Background and b. Comments ...... 73 Comments ...... 138 b. Comments ...... 206 c. Discussion ...... 75 b. Discussion ...... 141 c. Discussion ...... 214 E. Consumer Notification 3. Branding of Directory C. Relationship with other and Carrier Selection Pro- Assistance ...... 146 Public Notice Require- cedures ...... 76 a. Background and ments and Practices ...... 237 a. Background ...... 76 Comments ...... 146 1. Relationship of Sec- b. Comments ...... 77 b. Discussion ...... 148 tions 273(c)(1) and c. Discussion ...... 80 4. Alternative Dialing Ar- 273(c)(4) with Section F. Cost Recovery ...... 82 rangements for Direc- 251(c)(5) ...... 237 a. Background ...... 82 tory Assistance ...... 149 a. Background ...... 237 b. Comments ...... 83 a. Background and b. Comments ...... 238 c. Discussion ...... 92 Comments ...... 149 c. Discussion ...... 240 47286 Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations

Table of Contents—Continued Table of Contents—Continued 2. We began this rulemaking proceeding on April 19, 1996.5 The First Section Paragraph Section Paragraph Report and Order, which addressed issues that were raised in this docket, 2. Relationship of Sec- D. Section 271 Competitive decided that the Commission should tions 251(a) and Checklist Requirement establish national rules implementing 251(c)(5) with Section that the BOCs Provide 6 256 ...... 241 Non-Discriminatory Ac- section 251. The First Report and Order a. Background ...... 241 cess to Numbers for Entry interprets and implements, inter alia, b. Comments ...... 242 into In-region InterLATA sections 251 (a), (b)(1), (b)(4), (b)(5), c. Discussion ...... 244 Services ...... 344 (c)(1), (c)(2), (c)(3), (c)(4), and (c)(6). D. Enforcement and Safe- 1. Background and Com- That order promulgates rules to open guards ...... 245 ments ...... 344 the local exchange and exchange access 1. Enforcement Mecha- 2. Discussion ...... 345 markets to competition by eliminating nisms ...... 245 VI. Final Regulatory Flexibil- legal and technical barriers to such a. Background and ity Analysis ...... 346 competition. This Second Report and Comments ...... 245 A. Need for and Purpose of Order and Memorandum Opinion and b. Discussion ...... 247 this Action ...... 347 Order (Order) promulgates rules to 2. Protection of Propri- B. Summary of Issues implement the parts of section 251 that etary Information, Net- Raised by the Public Com- relate to the elimination of certain work and National Se- ments in Response to the operational barriers to competition. Initial Regulatory Flexibil- curity ...... 249 Specifically, this Order addresses local a. Background and ity Analysis ...... 349 C. Description and Estimate exchange carriers’ obligations to provide Comments ...... 249 their competitors with dialing parity b. Discussion ...... 254 of the Small Entities Sub- ject to the Rules ...... 361 and nondiscriminatory access to certain V. Numbering Administration 261 D. Summary of Projected services and functionalities; 7 incumbent A. Designation of an Impar- Reporting, Recordkeeping local exchange carriers’ duty to make tial Number Administrator 262 and Other Compliance Re- network information disclosures; 8 and 1. Background ...... 262 quirements ...... 378 numbering administration.9 In this 2. Comments ...... 263 E. Report to Congress ...... 398 Order we also deny the Petition for 3. Discussion ...... 264 VII. Ordering Clauses ...... 399 Expedited Declaratory Ruling on the B. Delegation of Numbering Administration Functions 267 I. Introduction and Overview area code relief plan for Dallas and 1. Delegation of Matters Houston that the Texas Public Utility Related to Implementa- 1. In February, 1996, Congress passed Commission (Texas Commission) filed tion of New Area Codes 268 and the President signed into law, the with this Commission on May 9, 1996.10 a. Background ...... 268 Telecommunications Act of 1996 (1996 We also address petitions for b. Comments ...... 269 Act).1 The 1996 Act erects a clarification or reconsideration in the c. Discussion ...... 271 ‘‘procompetitive, de-regulatory national Ameritech and NANP proceedings.11 2. Area Code Implementa- framework designed to accelerate rapid 3. Dialing parity, nondiscriminatory tion Guidelines ...... 273 private sector deployment of advanced access, network disclosure, and a. Background ...... 273 telecommunications and information numbering administration issues are b. Comments ...... 275 technologies and services to all critical issues for the development of c. Discussion ...... 281 Americans by opening all local competition. As stated in the First 3. Texas Public Utility telecommunications markets to Report and Order, incumbent local Commission’s Area competition.’’ 2 Section 101 of the 1996 exchange carriers have little incentive to Code Relief Order for Act adds new section 251 to the Dallas and Houston ...... 294 5 Communications Act of 1934. Congress Implementation of the Local Competition a. Background ...... 294 Provisions in the Telecommunications Act of 1996, intended that the provisions of this new b. Petition and Com- CC Docket No. 96–98, Notice of Proposed ments ...... 295 section would help competition grow in Rulemaking, FCC 96–182 (released April 19, 1996) (NPRM) 61 FR 18311 (April 25, 1996). c. Discussion ...... 304 the market for exchange and exchange access and related telecommunications 6 Implementation of the Local Competition 4. Delegation of Addi- Provisions in the Telecommunications Act of 1996, tional Numbering Ad- services. It directed the Commission to CC Docket No. 96–98, Interconnection between ministration Functions 309 adopt rules that would implement the Local Exchange Carriers and Commercial Mobile a. Background ...... 309 requirements of this section no later Radio Service Providers, CC Docket No. 95–185, than August 8, 1996.3 We note, First Report and Order, FCC 96–235 (released b. Comments ...... 311 August 8, 1996) (hereinafter First Report and Order) c. Discussion ...... 315 however, that, under section 251(f), at section II. 5. Delegation of Existing certain rural or small local exchange 7 47 U.S.C. 251(b)(3). Numbering Administra- carriers (LECs) are exempt or may seek 8 47 U.S.C. 251(c)(5). tion Functions Prior to relief from the rules we adopt herein.4 9 47 U.S.C. 251(e)(1). Transfer ...... 323 10 In the Matter of Area Code Relief Plan for Dallas and Houston, Ordered by the Public Utility a. Background ...... 323 1 Telecommunications Act of 1996, Public Law b. Comments ...... 324 Commission of Texas, Petition for Expedited No. 104–104, 110 Stat. 56 (1996) (1996 Act), to be Declaratory Ruling filed May 9, 1996. codified at 47 U.S.C. 151 et. seq. c. Discussion ...... 328 11 See In the Matter of Proposed 708 Relief Plan 2 C. Cost Recovery for Num- S. Conf. Rep. No. 104–230, 104th Cong., 2d Sess. and 630 Numbering Plan Area Code by bering Administration ...... 336 1 (1996). Ameritech—Illinois, IAD File No. 94–102, 1. Background ...... 336 3 47 U.S.C. 251(d)(1). Declaratory Ruling and Order, 10 FCC Rcd 4596 4 2. Comments ...... 337 47 U.S.C. 251(f) (1) and (f)(2). We note that the (1995) (Ameritech Order) 60 FR 19255 (April 17, term ‘‘United States’’ means ‘‘the several States and 1995) and Administration of the North American 3. Discussion ...... 342 Territories, the District of Columbia, and the Numbering Plan, CC Docket No. 92–237, Report and possessions of the United States, but does not Order, 11 FCC Rcd 2588, 2591 (1995) (NANP Order) include the Canal Zone.’’ 47 U.S.C. 153(50). 60 FR 38737 (July 28, 1995). Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations 47287 provide access to potential competitors call and encompasses international, including the methods it proposes to to their networks. In other words, interstate, intrastate, local and toll enable customers to select alternative potential competitors in the local and services. providers. In the event that a state elects long distance markets face numerous (5) With respect to toll service, we not to evaluate such a plan sufficiently operational barriers to entry further find that section 251(b)(3) in advance of the date on which a LEC notwithstanding their legal right to enter requires, at a minimum, that customers is required to implement toll dialing such markets. The dialing parity, be entitled to choose different parity, we require the LEC to file its nondiscriminatory access, and network presubscribed, or preselected, carriers plan with the Commission. The disclosure requirements should remove for both their intraLATA and interLATA Commission will act upon such a plan those barriers to entry. The rules we toll calls. In states, like Alaska and within 90 days of the date on which it adopt herein will benefit consumers by Hawaii, that have no LATAs,14 is filed with the Commission. making some of the strongest aspects of customers must be able to choose 7. Under the toll dialing parity local exchange carrier incumbency—the different presubscribed carriers for both implementation schedule we adopt, we local dialing, telephone numbers, their intrastate and interstate toll calls. require each LEC, including a BOC, to operator services, directory assistance, Based on this finding, we adopt a rule implement toll dialing parity no later and directory listing—available to all requiring all LECs to implement than February 8, 1999. In addition, we competitors on an equal basis. intraLATA and interLATA toll dialing require a LEC, including a BOC, to provide toll dialing parity throughout a A. Actions To Implement Section parity, using the ‘‘full 2–PIC’’ 15 state coincident with its provision of in- 251(b)(3) presubscription method. The toll dialing parity requirement we adopt is region, interLATA or in-region, 1. Dialing Parity defined by LATA boundaries given that interstate toll services in that state. 4. Section 251(b)(3) of the 1996 Act the Bell Operating Companies’ (BOCs’) LECs, other than BOCs, that are either directs each local exchange carrier operations are likely to be shaped by already offering or plan to begin to (LEC) 12 to provide dialing parity to LATA boundary restrictions for a period provide in-region, interLATA or in- competing providers of telephone of unforeseeable duration. Given that region, interstate toll services before exchange and telephone toll service.13 implementation of the 1996 Act over August 8, 1997, must implement toll This requirement means that customers time may diminish the significance of dialing parity by August 8, 1997. We of these competitors should not have to LATA boundaries, however, we permit note that smaller LECs, for which this dial extra digits to have their calls states to redefine the toll dialing parity implementation schedule may be routed over that LEC’s network. To requirement based on state, rather than unduly burdensome, may petition their implement this statutory requirement, LATA, boundaries where a state deems state commission for a suspension or such a requirement to be pro- modification of the application of this we adopt broad guidelines and 17 minimum federal standards that build competitive and otherwise in the public requirement. 8. Those states desiring to impose upon the experiences and interest.16 more stringent presubscription accomplishments of state commissions. 6. In order to facilitate the orderly methodologies, e.g., multi-PIC or smart- Although the 1996 Act requires a LEC implementation of toll dialing parity, PIC,18 will retain the flexibility to to provide dialing parity only to we require each LEC, including a BOC, impose such additional requirements. providers of telephone exchange and to submit a plan to the state regulatory We also announce our intention to issue toll services, section 251(b)(3) does not commission for each state in which it a Further Notice of Proposed limit the type of traffic or service for provides telephone exchange service Rulemaking addressing the technical which dialing parity must be afforded to setting forth the LEC’s plan for feasibility and nationwide availability of those providers. We conclude, therefore, implementing toll dialing parity, a separate presubscription choice for that section 251(b)(3) requires LECs to international calling based on the use of provide dialing parity to providers of 14 47 U.S.C. 153(25). According to the 1996 Act, multi-PIC or smart-PIC technologies. telephone exchange or toll service with a LATA is a ‘‘local access and transport area.’’ It is a ‘‘contiguous geographic area— 9. Pursuant to the local dialing parity respect to all telecommunications (A) established before the date of enactment of requirements of section 251(b)(3), we services that require dialing to route a the Telecommunications Act of 1996 by a Bell require a LEC to permit telephone operating company such that no exchange area exchange service customers, within a 12 The 1996 Act defines the term ‘‘local exchange includes points within more than 1 metropolitan carrier’’ as ‘‘any person that is engaged in the statistical area, consolidated metropolitan statistical defined local calling area, to dial the provision of telephone exchange service or area, or State, except as expressly permitted under same number of digits to make a local exchange access. Such term does not include a the AT&T Consent Decree; or telephone call, notwithstanding the person insofar as such person is engaged in the (B) established or modified by a Bell operating identity of the customer’s or the called provision of commercial mobile service under company after such date of enactment and section 332(c), except to the extent that the approved by the Commission.’’ party’s local telephone service provider. Commission finds that such provider should be 15 We note that the abbreviation ‘‘PIC’’ in the past We decline at this time to prescribe included in the definition of such term.’’ 47 U.S.C. has stood for the term ‘‘primary,’’ or ‘‘preferred, additional guidelines to address the 153(26). For purposes of the dialing parity and interexchange carrier.’’ While we retain the methods that LECs may use to nondiscriminatory access obligations that we acronym ‘‘PIC,’’ we define the term to include any impose pursuant to section 251(b)(3), we find that toll carrier for purposes of the presubscription rules accomplish local dialing parity given commercial mobile radio service (CMRS) providers that we adopt in this Order. For a discussion of the our finding that local dialing parity will are not LECs. See infra para. 29. full 2–PIC presubscription methodology, see infra be achieved upon implementation of the 13 According to the 1996 Act, the term ‘‘dialing section II.B(4). number portability and interconnection parity’’ means ‘‘that a person that is not an affiliate 16 To illustrate, if the presubscription requirement requirements of section 251, as well as of a local exchange carrier is able to provide were based on LATA boundaries, a customer would telecommunications services in such a manner that be entitled to choose a primary carrier for all customers have the ability to route automatically, intraLATA toll calls and a separate, or the same, 17 47 U.S.C. 251(f)(2). without the use of any access code, their primary carrier for all interLATA toll calls. If the 18 The multi-PIC or smart-PIC presubscription telecommunications to the telecommunications presubscription requirement were based on state method would enable subscribers to select multiple services provider of the customer’s designation boundaries, a customer would be entitled to choose carriers for various categories of toll traffic. For a from among 2 or more telecommunications services a primary carrier for all intrastate toll calls and a discussion of multi-PIC and smart-PIC providers (including such local exchange carrier).’’ separate, or the same, primary carrier for all presubscription methodologies, see infra section 47 U.S.C. 153(15). interstate toll calls. II.B(4). 47288 Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations the provisions requiring numbers that is identical to the access accessible’’ tape or electronic formats, nondiscriminatory access to telephone the LEC provides to itself. upon request, and in a timely manner. numbers found in section 251(b)(3). 13. We conclude that the term To the extent that all or part of directory ‘‘operator services,’’ for purposes of 10. We also decline to adopt federal assistance services are not section 251(b)(3), means any automatic consumer education programs or ‘‘telecommunications services,’’ of or live assistance to a consumer to procedures that would inform which resale is required under arrange for billing or completion, or 251(b)(1), LECs must make available consumers of the existence of both, of a telephone call. Such a such services in their entirety as part of competitive telecommunications definition includes busy line their obligation to permit providers. Instead, we leave decisions verification, emergency assistance, nondiscriminatory access to competing regarding consumer education and operator-assisted directory assistance, providers.23 This requirement thus carrier selection procedures to the and any other such services used to extends to any information services and states. We conclude that, in order to arrange for the billing and/or adjuncts used to provide directory ensure that dialing parity is completion of telephone calls. We assistance. Finally, as with the branding implemented in a pro-competitive further conclude that any customer of a of resold operator services, we find that manner, national rules are needed for telephone service provider that provides the refusal of a LEC providing the recovery of dialing parity operator services should be able to nondiscriminatory access to directory implementation costs. obtain these services by dialing ‘‘0’’ or assistance to ‘‘brand’’ resold directory 11. Section 271 of the 1996 Act ‘‘0-plus the desired telephone number.’’ assistance services as those of the requires BOCs to provide intraLATA toll If a dispute arises regarding a reseller, or to remove its brand, creates dialing parity throughout a state competitor’s access to operator services, a presumption that the LEC is coincident with the exercise of their the burden will be upon the providing unlawfully restricting access to authority to offer interLATA services LEC to demonstrate, with specificity, directory assistance. originating within the state.19 BOC entry that it has permitted nondiscriminatory 15. We also conclude that section into the interLATA market is access and that any disparity is not 251(b)(3)’s requirement of conditioned upon their offering caused by network elements within its nondiscriminatory access and its ‘‘nondiscriminatory access to such control. To the extent that operator prohibition of unreasonable dialing services or information as are necessary services use any information services delays applies to both the provision of to allow the requesting carrier to and adjuncts that are not local and toll dialing parity. We implement local dialing parity in ‘‘telecommunications services,’’ of conclude that the dialing delay accordance with the requirements of which resale is required under experienced by customers of a Section 251(b)(3).’’ 20 251(b)(1), LECs are required to make competing provider should not be available such services to competing greater than that experienced by 2. Nondiscriminatory Access providers in their entirety as a customers of a LEC providing dialing requirement of nondiscriminatory parity or nondiscriminatory access, for 12. Section 251(b)(3) also requires all access under 251(b)(3).22 Finally, we identical calls or call types. Finally, we LECs to permit competing providers of find that the refusal of a LEC providing conclude that the statutory obligation to telephone exchange service and toll nondiscriminatory access to comply avoid unreasonable dialing delays service ‘‘nondiscriminatory access to with reasonable requests of competing places a duty on LECs that provide telephone numbers, operator services, providers to ‘‘brand’’ resold operator dialing parity, or nondiscriminatory directory assistance and directory services as those of the reseller, or to access to operator services or directory listings.’’ 21 We conclude that remove its brand, creates a presumption assistance, to process all calls from ‘‘Nondiscriminatory access,’’ as used in that the LEC is unlawfully restricting competing providers on the same terms section 251(b)(3), encompasses both: (1) access to operator services. as calls from its own customers. Nondiscrimination between and among 14. We conclude that the requirement carriers in rates, terms and conditions of in section 251(b)(3) of B. Actions To Implement Section access; and (2) the ability of competing nondiscriminatory access to directory 251(c)(5) providers to obtain access that is at least assistance means that LECs that provide 16. In addition to the duties imposed equal in quality to that of the providing directory assistance must permit access by section 251(b)(3) on all LECs, new LEC. This definition of to this service to competing providers section 251(c)(5) imposes upon ‘‘nondiscriminatory access’’ in section that is at least equal in quality to the incumbent LECs the duty to ‘‘provide 251(b)(3) recognizes the more general access that the LEC provides to itself. reasonable public notice of changes in application of that section to all LECs, We impose obligations upon all LECs to the information necessary for the whereas section 251(c) places more satisfy the requirement of transmission and routing of services specific duties upon incumbent LECs in nondiscriminatory access to directory using that local exchange carrier’s terms of nondiscriminatory access. We listings. If a LEC provides directory facilities or networks, as well as of any conclude that the term assistance, that LEC must permit other changes that would affect the ‘‘nondiscriminatory access to telephone competing providers to have access to interoperability of those facilities or numbers’’ requires all LECs to permit its directory assistance, so that any networks.’’ 24 We adopt broad guidelines competing providers access to telephone customer of a competing provider can access any listed number on a 23 Id. nondiscriminatory basis, 24 An incumbent LEC, with respect to an area, is 19 47 U.S.C. 271(e)(2)(A). defined under the 1996 Act as ‘‘the local exchange 20 47 U.S.C. 271(c)(2)(B)(xii). We decline to notwithstanding the identity of the carrier that: (A) on the date of enactment of the address section 271(c)(2)(B) issues in this Order. We customer’s local service provider. Telecommunications Act of 1996, provided will consider each BOC’s application to enter in- Further, we require LECs to share telephone exchange service in such area; and (B)(i) region, interLATA services pursuant to section directory listings with competing on such date of enactment, was deemed to be a 271(c)(2)(B) on a case-by-case basis to determine member of the exchange carrier association whether the BOC has complied with section service providers, in ‘‘readily pursuant to section 69.601(b) of the Commission’s 271(c)(2)(B)(xii). regulations (47 CFR 69.601(b)); or (ii) is a person or 21 47 U.S.C. 251(b)(3). 22 Id. entity that, on or after such date of enactment, Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations 47289 to implement section 251(c)(5). We also the new North American Numbering their intraLATA toll calls carried by a specify how public notice must be made Plan Administrator. carrier other than their current provider whenever an upcoming change may 19. We conclude that we have taken of telephone exchange service had to affect the way in which a competing appropriate action to designate an dial a five- or seven-digit prefix or service provider transmits, routes, or impartial number administrator access code before dialing the called otherwise provides its services. pursuant to section 251(e)(1). We further party’s telephone number.29 17. We conclude that ‘‘information conclude that the Commission should Presubscription to a carrier other than a necessary for transmission and routing’’ retain its authority to set policy with customer’s telephone exchange service in section 251(c)(5) means any respect to all facets of numbering provider has not been an option for information in the incumbent LEC’s administration to ensure the creation of interstate, intraLATA toll calls or in possession that affects a competing a nationwide, uniform system of most states for intrastate, intraLATA toll service provider’s performance or ability numbering that is essential to the calls.30 In states where intrastate, to provide either information or efficient delivery of interstate and intraLATA toll dialing parity is telecommunications services. We define international telecommunications available, a customer may presubscribe ‘‘interoperability’’ as the ability of two services and to the development of a to a carrier other than his or her or more facilities, or networks, to be competitive telecommunications provider of telephone exchange service connected, to exchange information, services market. While we retain this and have all of that customer’s and to use the information that has been policy-making authority, we authorize intrastate, intraLATA toll calls carried exchanged. the states to resolve matters involving by that selected carrier simply by implementation of new area codes dialing ‘‘1’’ plus the area code and C. Actions Taken To Implement Section subject to the guidelines set forth in this telephone number of the called party.31 251(e) Order. The section 251(b)(3) dialing parity 18. New section 251(e)(1) restates the 20. In this Order, we also prohibit the obligation will foster vigorous local Commission’s authority over matters use of service-specific or technology- exchange and long distance competition relating to the administration of specific area code overlay plans. States by ensuring that each customer has the numbering resources by giving the may employ all-services overlays only if freedom and flexibility to choose among Commission ‘‘exclusive jurisdiction they also mandate 10-digit dialing for all different carriers for different services over those portions of the North local calls within the area affected by without the burden of dialing access American Numbering Plan that pertain the area code change and ensure the codes. to the United States.’’ 25 This section availability of at least one central office The Need for Minimum Nationwide also requires the Commission to ‘‘create code in the existing area code to every Dialing Parity Standards or designate one or more impartial entity authorized to provide local entities to administer exchange service in that area, including a. Background and Comments telecommunications numbering and to CMRS providers. 23. Section 251(b)(3) imposes on all make such numbers available on an 21. To fulfill the mandate of section LECs the ‘‘duty to provide dialing parity 26 equitable basis.’’ Finally, section 251(e)(2), we require that (1) only to competing providers of telephone 251(e)(2) provides that the cost of ‘‘telecommunications carriers,’’ as exchange service and telephone toll establishing telecommunications defined in section 3(44) of the 1996 Act, service.’’ 32 In the NPRM, we sought numbering administration arrangements shall contribute to the costs of comment on whether the Commission ‘‘shall be borne by all numbering administration; 28 and (2) should adopt nationwide dialing parity telecommunications carriers on a that such contributions shall be based standards and, if so, what those competitively neutral basis as on each contributor’s gross revenues standards should be.33 27 determined by the Commission.’’ In from its provision of 24. A majority of commenters urge the this Order, we address whether further telecommunications services reduced by Commission to adopt uniform action is required to create or designate all payments for telecommunications nationwide dialing parity guidelines, an impartial entity to administer services and facilities that have been telecommunications numbering. We paid to other telecommunications 29 Sometimes referred to as ‘‘10XXX’’ or clarify the states’ role in number carriers. ‘‘101XXXX’’ dialing, callers may reach a long administration, and provide direction to distance carrier in states where such dialing states wishing to use area code overlay II. Dialing Parity Requirements arrangements are authorized by dialing a five-digit carrier access code (‘‘10XXX,’’ with ‘‘XXX’’ plans. We also clarify how cost recovery A. In General representing a three-digit carrier identification for numbering administration will code) or a seven digit carrier access code 22. With dialing parity a telephone occur. We deny the petition for (‘‘101XXXX,’’ with ‘‘XXXX’’ representing a carrier customer can preselect any provider of expedited declaratory ruling filed by the identification code). telephone exchange service or telephone 30 An ‘‘interstate, intraLATA toll call’’ is a call Texas Commission based on our finding toll service without having to dial extra that: (1) Crosses a state boundary but does not cross that the Texas Commission’s wireless- digits to route a call to that carrier’s a LATA boundary; and (2) is subject to a charge. only area code overlay plan violates the A call from Philadelphia, Pennsylvania to Cherry network. Until now, in most states, guidelines set forth in our Ameritech Hill, New Jersey (currently handled by Bell telephone customers wishing to have Atlantic) is an example of such a call. Order. We authorize Bellcore and the 31 It is our understanding that some form of incumbent LECs to perform number 28 The term ‘‘telecommunications carrier’’ means intraLATA toll dialing parity is available or has administration functions as they did ‘‘any provider of telecommunications services, been ordered in Alaska, Arizona, Connecticut, prior to the enactment of the 1996 Act except that such term does not include aggregators Florida, Georgia, Illinois, Kentucky, Michigan, until such functions are transferred to of telecommunications services (as defined in Minnesota, New Jersey, New York, Ohio, section 226). A telecommunications carrier shall be Pennsylvania, West Virginia, Wisconsin and treated as a common carrier under this Act only to Wyoming. See Ex parte letter from Charles D. became a successor or assign of a member described the extent that it is engaged in providing Cosson, USTA, to William F. Caton, Acting in clause (i).’’ 47 U.S.C. 251(h)(1). telecommunications services, except that the Secretary, Federal Communications Commission, 25 47 U.S.C. 251(e)(1). Commission shall determine whether the provision filed in CC Docket No. 96–98, July 10, 1996, at 2. 26 Id. of fixed and mobile satellite service shall be treated 32 47 U.S.C. 251(b)(3). 27 47 U.S.C. 251(e)(2). as common carriage.’’ 47 U.S.C. 153(44). 33 NPRM at paras. 206, 207, 209–213, 218, 219. 47290 Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations but commenters differ on how detailed necessary to facilitate competition by provide dialing parity to competing such federal rules should be. For serving as a backdrop against which providers of telephone toll service example, the Telecommunications interconnection negotiations and applies to international calls only to the Resellers Association maintains that arbitration can occur.40 We are extent that it entitles a customer to route specific national standards are needed persuaded that, contrary to the views of automatically, without the use of an to ensure that competing providers are Bell Atlantic, the failure to adopt access code, all of the customer’s able to utilize common network designs minimum federal standards would harm international calls to his or her in multiple markets and to prevent both new entrants and consumers by presubscribed interLATA long distance incumbent LECs from ‘‘gaming’’ or delaying the introduction of carrier.46 These parties maintain that ‘‘manipulating the processes’’ of the competition and imposing additional section 251(b)(3) does not require LECs states.34 Ameritech urges the costs on competitors, including small to provide customers a separate Commission to adopt ‘‘broad rules that entities, particularly when different presubscription choice for international afford sufficient flexibility to network configurations are required in calling.47 accommodate local conditions.’’ 35 Other each market. We conclude that uniform 28. A broad range of parties also commenters, such as Bell Atlantic, standards—in some cases minimum, support the tentative conclusion that opposing the adoption of federal dialing uniform standards—will speed section 251(b)(3) imposes a duty on the parity standards, assert that the competitive entry by more promptly LEC to provide both local and toll proponents of such standards have opening the local and toll markets to dialing parity.48 Two parties reject this failed to demonstrate how they or competition. tentative conclusion, arguing that the consumers have been harmed by dialing parity requirements apply only ‘‘locally tailored implementation’’ of 2. Scope of the Dialing Parity to local calling and do not extend to toll dialing parity in the intraLATA toll Requirements services.49 Specifically, Lincoln markets.36 Without such a a. Background Telephone and the Pennsylvania demonstration, argues Bell Atlantic, the 26. Under section 251(b)(3) a LEC Commission contend that Congress Commission should not interfere with addressed toll dialing parity only in 37 must provide dialing parity only to states’ activities. Cincinnati Bell competing providers of telephone section 271(e)(2) of the 1996 Act as it Telephone Company (CBT) likewise exchange service and telephone toll relates to the conditions under which a opposes federal standards, maintaining service.41 The scope of the obligation to BOC may enter the in-region, interLATA that so long as a state regulatory provide dialing parity, however, is not toll business and question the commission adopts a toll dialing parity limited to a particular type of traffic or Commission’s authority to implement arrangement that ‘‘offers consumers a 50 service. Section 251(b)(3) makes no toll dialing parity requirements. U S choice from at least two carriers, one of distinction among international, WEST similarly argues that section which is the local exchange carrier, the interstate and intrastate traffic for 251(b)(3) imposes only a duty to provide requirements of the 1996 Act have been purposes of the dialing parity local dialing parity and suggests that the met.’’ 38 provisions.42 The statutory definition of only affirmative obligation to provide b. Discussion ‘‘dialing parity’’ also contains no such toll dialing parity is contained in the equal access provisions of section 251(g) 25. We conclude that the purpose of distinctions and, instead, speaks generally in terms of the provision of of the 1996 Act, which, U S WEST the statutory dialing parity states, applies only to the BOCs and requirements—to facilitate the ‘‘telecommunications services’’ by ‘‘a 51 person that is not an affiliate of a local GTE. Lincoln Telephone makes the introduction of competition in the local additional argument that competitive and toll markets—is best served by the exchange carrier.’’ 43 Based on the absence of any such distinctions in providers wishing to enter the adoption of broad guidelines and intraLATA toll market should be minimum federal standards that build defining the scope of the dialing parity requirements, the NPRM tentatively required to ‘‘share responsibility for upon the states’ experiences. We serving the entire LATA, rather than conclude that such minimum concluded that section 251(b)(3) creates a duty to provide dialing parity to simply selecting the lowest cost nationwide standards will facilitate customers from the most profitable competition to the extent that new competing providers of telephone exchange service and telephone toll exchanges without regard to that entrants seeking to offer regional or practice’s effect on other customers.’’ 52 national services will not be subjected service with respect to all telecommunications services that The imposition of such a requirement, to an array of differing state standards according to Lincoln Telephone, would and timetables.39 We note that our require dialing to route a call, and encompasses international as well as ‘‘reflect a commitment to affordable conclusion to adopt nationwide dialing universal service.’’ 53 parity standards is consistent with our interstate and intrastate, local and toll conclusion in the First Report and Order services.44 c. Discussion that nationwide standards to implement b. Comments 29. We adopt our tentative conclusion other section 251 provisions are 27. Numerous parties express support that section 251(b)(3) creates a duty to provide dialing parity to competing 34 Telecommunications Resellers Association for the Commission’s tentative reply at 8–9. conclusion.45 Several parties qualify 46 See, e.g., Sprint comments at 4–5; SBC 35 Ameritech reply at i. their support for this conclusion, comments at 5. 36 Bell Atlantic reply at 2. however, by asserting that the duty to 47 Id. 37 Id. 48 See, e.g., Excel comments at 6; MCI comments 38 CBT comments at 5. 40 See First Report and Order at section II. at 2; BellSouth comments at 9. 39 We note that section 271(e)(2)(B) precludes 41 47 U.S.C. 251(b)(3). 49 Lincoln Telephone comments at 2–3; most states from requiring a BOC to implement 42 Id. Pennsylvania Commission comments at 1–2. intraLATA toll dialing parity in a state before the 50 BOC has received authority to provide in-region, 43 47 U.S.C. 153(15). Id. interLATA services in such state or before three 44 NPRM at para. 206. 51 U S WEST comments at 4–5. years after enactment of the 1996 Act, whichever is 45 See, e.g., MFS comments at 2; California 52 Lincoln Telephone comments at 5. earlier. 47 U.S.C. 271(e)(2)(B). Commission comments at 3. 53 Id. at 6. Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations 47291 providers of telephone exchange service neither the language of section 251(b)(3) to this tentative conclusion.62 In this and telephone toll service with respect nor its legislative history supports the context, the NPRM defined to all telecommunications services that conclusion that Congress intended to ‘‘presubscription’’ as the process by require dialing to route a call, and condition a carrier’s right to receive the which a customer preselects a carrier to encompasses international as well as benefits of dialing parity upon its which all of a particular category or interstate and intrastate, local and toll assuming the obligations of an eligible categories of calls on the customer’s line services.54 We note that section telecommunications carrier. The issue will be routed automatically.63 251(b)(3) does not limit the types of of encouraging carriers to provide 32. As stated in the NPRM, traffic or services for which dialing universal service throughout a service presubscription to a carrier other than parity must be provided to competing territory is beyond the scope of this the customer’s local exchange carrier providers of telephone exchange and proceeding.58 Also, for the Commission has not been available for interstate, telephone toll service. The reference to to make LATA-wide or state-wide intraLATA toll calls nor has it been these types of providers clearly shows service a precondition of entry into that available in most states for intrastate, that dialing parity must be provided for LATA or state would be to erect a major intraLATA toll calls.64 Instead, LECs exchange service and toll service. legal barrier to entry, particularly for automatically carry these calls rather Nothing in the statutory language limits smaller telecommunications services than routing them to a presubscribed the scope of the dialing parity obligation providers, that is contrary to the basic carrier of the customer’s choice. If the to exchange and toll services or thrust of the 1996 Act. state from which the customer is calling distinguishes among the various types has authorized competition, but has not of telecommunications services in B. Implementation of the Toll Dialing ordered presubscription in the imposing the dialing parity obligations. Parity Requirements intraLATA toll market, a customer This conclusion is further supported by 1. Presubscription Method of Achieving Toll wishing to route an intraLATA toll call the statutory definition of dialing parity Dialing Parity to an alternative carrier typically must insofar as it refers to the provision of dial the carrier access code of the a. Background ‘‘telecommunications services’’ alternative carrier. 31. The statutory definition of dialing generally without distinction among b. Comments various types of telecommunications parity provides that the customer must services.55 In addition, we are not have the ability to choose ‘‘from among 33. Nearly all parties concur in the persuaded that section 251(g) relieves 2 or more telecommunications services Commission’s tentative conclusion that certain LECs of the duty to provide toll providers (including such local presubscription represents the most dialing parity. That section contains no exchange carrier).’’ 59 The definition also feasible method of achieving toll dialing reference or cross reference to dialing provides that customers must be able to parity consistent with the statutory parity or to section 251(b)(3). Section exercise this choice by being able ‘‘to definition of dialing parity.65 PacTel and 251(g) preserves the equal access route automatically without the use of Lincoln Telephone suggest that obligations already imposed on the access codes, their telecommunications presubscription is not required to BOCs and GTE, but does not exempt to the telecommunications services achieve toll dialing parity so long as them or other LECs from the toll dialing provider of the customer’s customers can reach competing toll parity requirements. Finally, we note designation.’’ 60 Thus, LECs are carriers through the use of carrier access 66 that CMRS providers are not required to precluded from relying on access codes codes. Finally, BellSouth argues that provide dialing parity or as a means of providing dialing parity the toll dialing parity requirement is nondiscriminatory access under section to competitive service providers.61 The satisfied by ‘‘removing the intraLATA 251(b)(3) because the Commission has 1996 Act, however, does not specify default to the incumbent LEC, thus not determined that CMRS providers are what methods should be used to assuring that no additional digits need LECs and section 332(c) of the implement dialing parity. The NPRM to be dialed in order to reach carriers Communications Act of 1934 provides tentatively concluded that competing with the incumbent LEC for 67 that a ‘‘person engaged in the provision presubscription represents the most intraLATA toll service.’’ BellSouth of commercial mobile services * ** feasible method of achieving dialing further argues that the Commission shall not be required to provide equal parity in long distance markets should confirm that such arrangements access to common carriers for the are consistent with the statutory dialing consistent with the statutory definition 68 provision of toll services.’’ 56 of dialing parity and sought comment as parity requirements. 30. Finally, concerning Lincoln c. Discussion Telephone’s proposal to require supported by federal universal service support 34. We adopt our tentative conclusion competitive providers of intraLATA toll mechanisms under section 254(c) and that uses service to serve an entire LATA, rather ‘‘media of general distribution’’ to advertise the that the dialing parity requirement for than merely certain low cost customers availability of those services and its charges for toll calling can best be achieved through within a LATA, we note that Lincoln them. 47 U.S.C. 214(e)(1). The issue of which presubscription because that method services should receive support from universal would enable customers to route a Telephone, in essence, is asking us to service support mechanisms is being addressed by condition a carrier’s receipt of dialing the Commission and the Federal-State Joint Board 62 parity upon that carrier’s assuming the on universal service, as required by new section 254 NPRM at para. 207. of the Communications Act, as amended by the 63 Id. obligation of an ‘‘eligible’’ 1996 Act. See Federal-State Joint Board on 64 Id. at para. 208. 57 telecommunications carrier. We find Universal Service, CC Docket No. 96–45, Notice of 65 See, e.g., Ohio Commission comments at 6; Proposed Rulemaking and Order Establishing Joint NEXTLINK comments at 9. 54 NPRM at para. 206. Board, FCC 96–93, (released March 8, 1996) 66 See, e.g., PacTel reply at 10 (‘‘Toll dialing 55 The issue of whether a separate presubscription (Universal Service NPRM) (proposing rules to parity, on the other hand, should mean that choice is required for international, interstate, and implement section 254 of the 1996 Act) 61 FR customers can reach competing toll carriers on the intrastate toll calls is discussed more fully in 10499 (March 14, 1996). same dialing basis, including through the use of section II.B(2) infra. 58 See Universal Service NPRM. carrier access codes, with an equal number of 56 47 U.S.C. 332(c)(8). 59 47 U.S.C. 153(15). digits.’’); Lincoln Telephone comments at 2–3. 57 An eligible telecommunications carrier is a 60 Id. 67 BellSouth comments at 11 n.23. common carrier that offers all services that are 61 Id. 68 Id. 47292 Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations particular category of traffic to a consensus in the record, however, boundaries given our expectation that preselected carrier without having to regarding how the Commission should implementation of the 1996 Act dial access codes. We note that the use define the presubscription requirement. eventually will diminish the of access codes to route calls among USTA, for example, argues that ‘‘[a]ll significance of LATA boundaries.80 We competing providers of telephone toll telecommunications carriers, including are aware that BOCs remain subject to service is precluded under the statutory LECs, should be permitted to define the certain LATA boundary restrictions for definition of dialing parity.69 scope of local service and toll service in at least the near-term and that some Accordingly, we disagree with those response to market forces.’’ 76 USTA BOCs may find it technically infeasible, parties who contend that toll dialing further argues that the ‘‘relevant or otherwise undesirable, to implement parity can be achieved through the use distinction, for the long term, will be toll dialing parity based on state of access codes in a manner that is between intrastate and interstate toll boundaries.81 We thus conclude that consistent with the statutory definition traffic.’’ 77 Sprint, on the other hand, states should be able to take the of dialing parity.70 We also cannot argues in favor of maintaining a relevance of those factors into account, conclude that the toll dialing parity presubscription requirement based on where applicable, and have the requirement is satisfied by removing the LATA boundaries and recommends that flexibility to require that toll dialing intraLATA default, as BellSouth customers continue to be allowed to parity implementation be based on state maintains.71 Removing the intraLATA choose separate intraLATA and boundaries where they determine that default would not satisfy the toll dialing interLATA toll carriers.78 Sprint urges implementing toll dialing parity on the parity requirement unless the LEC also us to maintain the LATA distinction, basis of state boundaries would be pro- uses the full 2-PIC presubscription asserting that ‘‘competition over the past competitive and otherwise in the public methodology discussed below.72 12 years has developed around the interest. In Alaska and Hawaii, states LATA concept, and presubscription has with no LATAs, toll dialing parity will 2. Categories of Domestic, Long Distance for the most part already occurred along continue to be based on state Traffic Subject to Presubscription these lines.’’ 79 boundaries. a. Background 38. We also direct each LEC to submit c. Discussion 35. In the NPRM, the Commission to the state regulatory commission for 37. With respect to toll service, we sought comment as to the categories of each state in which it provides conclude that section 251(b)(3) requires, long distance traffic (e.g., intrastate, telephone exchange service the LEC’s at a minimum, that customers be interstate, and international traffic) for plan for implementing toll dialing entitled to choose presubscribed carriers parity. That plan must contain detailed which a customer should be entitled to for their intraLATA and interLATA toll implementation information, including choose presubscribed carriers.73 The calls. Because of the variations that exist the proposed date for dialing parity NPRM also sought comment on specific among LATA boundaries and toll traffic implementation for that exchange that alternative methods for implementing within, and among, the various states, the LEC operates in each state, and the local and toll dialing parity, including we have also concluded that each state method it proposes for enabling various forms of presubscription, in the should have the opportunity to customers to select alternative providers interstate and intrastate long distance determine whether customers should be of telephone toll service. For a LEC, and international markets, that are able to presubscribe to carriers for other than a BOC, the plan also must consistent with the statutory intrastate toll service and for interstate 74 identify the LATA with which the LEC requirements set forth in the 1996 Act. toll service in lieu of the intraLATA and proposes to associate.82 b. Comments interLATA toll presubscription 39. We find that the states are best dichotomy that we have established as able to evaluate implementation plans 36. Most parties appear to agree that a minimum nationwide standard at this in a way that will avoid service customers should be entitled to time. Although toll dialing parity disruptions for subscribers and promote presubscribe to two separate carriers for typically has been based on LATA competition in the intrastate toll market. their toll calling.75 There is a lack of boundaries in multi-LATA states where A LEC must first obtain state approval it has been implemented, we do not 69 See 47 U.S.C. 153(15). of its implementation plan before it 70 Although the use of access codes to access impose a requirement that toll dialing implements toll dialing parity. If the competing providers of telephone toll service does parity be based only on LATA LEC determines that a state commission not constitute dialing parity as defined in 47 U.S.C. elects not to evaluate the LEC’s toll 153(15), we do not intend to preclude their use additional carrier choices against higher dialing parity implementation plan for where a customer wishes to route a call to a carrier administrative and network design costs associated other than his or her presubscribed intraLATA toll with increased number of presubscription choices). 80 carrier. 76 USTA correctly notes that independent Ex parte letter from Charles D. Cosson, USTA, exchange carriers have not been subject to the 71 We understand BellSouth’s reference to to William F. Caton, Acting Secretary, Federal ‘‘removing the intraLATA default’’ to mean that interLATA line of business restrictions that were Communications Commission, filed in CC Docket imposed on the BOCs pursuant to the AT&T BellSouth would modify its switches so they no No. 96–98, June 17, 1996, at 2. Consent Decree. See United States v. American longer automatically route all intraLATA toll calls 77 USTA comments at 3 n.2; see also MFS reply Telephone and Telegraph Co., 552 F. Supp. 226 to BellSouth and thus, would permit customers to at 12–13 (‘‘The Commission should recognize that (D.D.C. 1982). See USTA comments at 3 n.2. choose an alternative intraLATA toll carrier. rules for intraLATA presubscription are transitory. 81 For example, where BOCs receive authority to 72 For a discussion of the full 2-PIC methodology, At some point, when the BOCs and GTE are provide in-region, interLATA services, they are see section II.B(4) infra. authorized to provide both interLATA and required to provide such services through a separate 73 NPRM at para. 210. intraLATA service, the distinctions between affiliate for at least three years pursuant to section 74 Id. at para. 209. interLATA and intraLATA calls will no longer be 272 of the 1996 Act. See 47 U.S.C. §§ 272 (a)(2), 75 See, e.g., Ohio Consumers’ Counsel comments meaningful, and the Commission should be (f)(1). Accordingly, it appears that the LATA at 2; see also MCI comments at 3 (recommending prepared to revisit and eliminate these distinction will remain relevant insofar as it will that call types subject to presubscription should distinctions.’’). continue to define the geographic areas in which a include: 1-plus/0-plus interexchange, 7-digit 78 Sprint comments at 4. BOC must provide toll services through an affiliate interexchange and 1+555–1212 calls); cf. GTE 79 Id. At the same time, Sprint asks that we and those in which it may provide toll services comments at 9 (maintaining that decisions eliminate the intrastate intraLATA/interstate directly. regarding appropriate presubscription categories intraLATA distinction and make all intraLATA toll 82 States may require a LEC to provide other should be left to state regulatory agencies on theory calls (both interstate and intrastate) subject to a categories of information in its plan in addition to that states are best positioned to balance value of single presubscription. the information categories stated here. Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations 47293 that state sufficiently in advance of the any other carrier except when, in a state 3. Separate Presubscription for date on which a LEC is required to that already has implemented intrastate, International Calls implement toll dialing parity pursuant intraLATA toll dialing parity, the a. Background and Comments to the Commission’s rules, we direct the subscriber has selected the same LEC to file its plan with the intraLATA and interLATA 43. The NPRM sought comment on Commission.83 The Commission will presubscribed carrier. Finally, when whether customers should be entitled to release a public notice of any such LEC LATA boundaries encompass parts of choose a presubscribed carrier for filings, in order to give interested parties two adjacent states, we permit the LEC international calls and on what an opportunity to comment. The LEC’s to implement in each state the Commission action, if any, is necessary plan will be deemed approved on the procedures that that state approved for to implement dialing parity for such fifteenth day following release of the 86 implementing toll dialing parity within calls. Commission’s public notice unless, no 44. Most parties maintain that the later than the fourteenth day following its borders. If a state commission elects 1996 Act does not require, and the the release of the Commission’s public not to evaluate the LEC’s intrastate toll Commission should not mandate, a notice, either: (1) The Common Carrier dialing parity plan, we direct the LEC to file both its intrastate toll dialing plan separate presubscription choice for Bureau notifies the LEC that its plan 87 will not be deemed approved on the and its interstate toll dialing plan with international calling. Several parties fifteenth day; or (2) an opposition to the the Commission. The plans will be take the position that the toll dialing plan is filed with the Commission and acted on in accordance with the parity requirement applies to served on the LEC that filed the plan. procedures outlined above. international calling only to the extent that it entitles a customer to route The opposition must state specific 42. We note that the minimum reasons why the plan does not serve the automatically without the use of an intraLATA/interLATA toll access code the customer’s international public interest. presubscription requirement that we 40. If one or more oppositions are calls to the customer’s presubscribed adopt in this Order is necessarily an 88 filed, the LEC that filed the plan will interLATA carrier. A number of interim measure. Specifically, we expect have seven additional days (i.e., until no parties contend that the technology later than the twenty-first day following that the development of the ‘‘multi-PIC’’ required to support a separate the release of the Commission’s public or ‘‘smart-PIC’’ presubscription presubscription choice for international notice) within which to file a reply to methodology will enable customers to calling, the so-called multi-PIC or smart- the opposition(s) and serve it on all presubscribe to multiple carriers for PIC methodology, is not currently parties that filed oppositions. The various categories of long-distance available.89 USTA suggests that the cost response shall: (a) Include information calling.85 Thus, in time, we anticipate of providing a separate presubscription responsive to the allegations and that service markets, and the choice for international calling should concerns identified by the opposing presubscription requirement in be weighed against the amount of party; and (b) identify possible revisions particular, will be defined by customer demand for such an option, to the plan that will address the technological, economic and marketing and the harm to consumers that may opposing party’s concerns. In the case of considerations and that LATA or state result from a potentially greater number such contested toll dialing parity plans, boundary distinctions will diminish for of unauthorized carrier changes.90 the Common Carrier Bureau will act on purposes of the toll dialing parity AT&T, Ameritech, Sprint and the the plan within ninety days of the date requirements. As the record before us Indiana Commission urge the on which the Commission released its provides an inadequate basis for Commission to revisit the issue of a public notice.84 In the event the Bureau adopting more specific requirements separate presubscription choice for international calling only after it is fails to act within 90 days, the plan will now, we intend to monitor demonstrated to be technically and not go into effect pending Bureau developments in this area and issue a economically feasible.91 action. If the plan is not contested but Further Notice of Proposed Rulemaking did not go into effect on the fifteenth to address these long range b. Discussion day after the Commission released its considerations so that end users will be public notice, and the Common Carrier 45. While we believe that a separate able to preselect alternative providers Bureau fails to act on the plan within presubscription choice for international for operator services, directory ninety days of the date on which the calling is consistent with the intent of assistance, international and other Commission released its public notice, the 1996 Act because it could foster the plan will be deemed approved services. additional carrier competition, we without further Commission action on recognize that technical limitations the ninety-first day after the date on 85 The terms ‘‘smart-PIC’’ and ‘‘multi-PIC’’ have preclude our imposing such a been defined differently in various contexts. For which the Commission released its example, GVNW states that the multi-PIC public notice of the plan’s filing. presubscription method would permit customers to 86 NPRM at para. 210. 41. A LEC’s plan may not accomplish choose up to three different toll carriers, which, 87 See, e.g., SBC reply at 3 n.6; AT&T comments toll dialing parity by automatically GVNW suggests, might include an intraLATA toll, at 4 n.4. assigning toll customers to itself, to a interLATA toll and an international service 88 See, e.g., SBC comments at 5. customer’s currently presubscribed provider. See GVNW comments at 6. GVNW states 89 Ameritech comments at 18–19; Bell Atlantic that the smart-PIC presubscription method would reply at 3; CBT comments at 4–6; SBC comments interLATA or interstate toll carrier, or to allow customers more than three carrier choices, at 5; U S WEST comments at 6; Sprint comments ‘‘as when a fourth PIC for interstate, intraLATA is at 4–6; USTA reply at 2; cf. Sprint comments at 6 83 See infra para. 62 , which sets forth the dates needed.’’ Id. In a recent state commission decision, (noting implementation of multi-PIC system by by which a dialing parity implementation plan the terms ‘‘multi-PIC’’ and ‘‘smart-PIC,’’ deemed to GTE-Hawaiian Telephone Company that offers must be filed with the Commission in the event that be synonymous, were defined as the ability to customers a separate international presubscription a state will not be evaluating the plan. ‘‘select multiple carriers for various subdivisions of option). 84 We delegate to the Chief, Common Carrier their interLATA and intraLATA toll calls.’’ Local 90 USTA comments at 3. Bureau, the authority to approve, modify, or require Exchange Competition and Other Competitive 91 Ameritech comments at 18–19; AT&T the refiling of each plan that is filed with the Issues, Case No. 95–845–TP–COL, 164 P.U.R.4th comments at 5 n.6; Sprint comments at 5; Indiana Commission pursuant to this requirement. 214 (Ohio Pub. Util. Comm’n Sept. 27, 1995). Commission Staff comments at 9. 47294 Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations nationwide requirement at this time.92 to presubscribe to another and thus is more consistent with the To the extent that such a capability telecommunications carrier (including, congressional objectives underlying becomes technically feasible and is but not limited to, the customer’s local enactment of section 251(b)(3). Second, ordered in a particular state, we find exchange carrier) for all intraLATA toll this method clearly is preferred by the that the deployment of a separate calls. The multi-PIC or smart-PIC majority of state regulators and presubscription choice for international methods, as known today, would allow telecommunications service calling is consistent with the 1996 Act. customers to presubscribe to multiple providers.103 Third, as compared with We will address in a further notice at a carriers, each one of which would be the multi-PIC method, the technology future date the issue of how soon a selected to transport a specified for the full 2–PIC method is widely separate presubscription choice for component of toll traffic. available and well defined. By contrast, international calling will be technically there is no evidence in the record to b. Comments feasible on a nationwide basis.93 support a finding that the technical and 48. Nearly all parties favor adoption economic feasibility of the multi-PIC 4. Full 2-PIC Presubscription Method of the full 2-PIC method.97 Few parties method has been demonstrated on a a. Background favor deploying the modified 2-PIC nationwide basis. We conclude that this 98 46. In the NPRM, the Commission method. Likewise, few commenters national standard should speed favor immediate deployment of the competitive entry into the intraLATA sought comment as to whether the 99 Commission should adopt a nationwide multi-PIC method. Several parties and intrastate toll markets while presubscription methodology for suggest that the multi-PIC or smart-PIC providing states that are considering a implementing the toll dialing parity methodology and technology may more stringent presubscription method, requirements.94 The NPRM also noted warrant consideration in the future, but i.e., multi-PIC or smart-PIC, flexibility to 100 that states have adopted a variety of is currently unavailable. Others impose such additional requirements. intraLATA toll dialing parity maintain that the Commission should Until the Commission considers the requirements and implementation conclude that the 2–PIC approach is issue of multi-PIC or smart-PIC methods methodologies.95 consistent with the 1996 Act based on in a further notice, we believe that the 47. Among the presubscription the theory that the 1996 Act does not states are best situated to evaluate the methodologies that states have require more than a two-PIC capability technical feasibility and economic examined are the ‘‘modified 2-PIC,’’ the to achieve toll dialing parity.101 impact of such methods on LECs, ‘‘full 2-PIC,’’ and the ‘‘multi-PIC’’ or c. Discussion including smaller LECs, in their ‘‘smart-PIC’’ methods.96 The modified 2- jurisdictions. PIC method generally allows a customer 49. We adopt in this Order the full 2– PIC method as the minimum 5. Deployment of Presubscription to presubscribe to a telecommunications Software in Each End Office carrier for all interLATA toll calls and presubscription standard. Under our to presubscribe to either the customer’s rules and pursuant to section a. Background 102 presubscribed interLATA carrier or the 251(d)(3), however, state 51. With end office equal access, customer’s local exchange carrier for all commissions may impose more presubscription software is installed at intraLATA toll calls. The full 2-PIC stringent presubscription requirements, each end office switch within the LEC’s method generally allows customers to such as multi-PIC or smart-PIC. service areas. Toll calls are then directly 50. We adopt the full 2–PIC method presubscribe to a telecommunications routed at each end office switch to the as the minimum presubscription carrier for all interLATA toll calls and presubscribed provider of telephone toll standard at this time for several reasons. service. With centralized equal access, We conclude that, as compared with the 92 Bell Atlantic reply at 3; CBT comments at 4– presubscription software is installed at modified 2–PIC method, the full 2–PIC 6; SBC comments at 5; U S WEST comments at 6; a central tandem switch location. With Sprint comments at 4–6; USTA reply at 2. method will maximize choice for 93 Sprint comments at 6 (noting development of the latter, toll calls are routed from an consumers and open the long-distance end office to a tandem switch for multi-PIC system by GTE-Hawaiian Telephone that telecommunications markets to a greater offers customers a separate international presubscription information.104 presubscription option). It is our understanding that number of competitive services Providers of telephone toll service may GTE Hawaiian Telephone Company has multi- providers, including smaller providers, primary interexchange carrier capability that connect at the tandem to receive this enables customers in Hawaii to select three long- traffic rather than at each individual end 97 See, e.g., Michigan Commission Staff comments distance carriers, i.e., an intrastate, interstate, and at 4; MCI comments at 5–6, Pennsylvania office that is associated with the international carrier. See ex parte letter from Commission comments at 2; SBC reply at 2; PacTel tandem. Clarence Clay M. Nagao, Chief Counsel, State of reply at 10–11. Hawaii Public Utilities Commission, Department of 98 b. Comments Budget and Finance, to Mr. William F. Caton, See, e.g., Sprint comments at 5; USTA Acting Secretary, Federal Communications comments at 3. 52. MCI raises the issue of whether Commission, filed in CC Docket No. 96–98, July 2, 99 GSA/DOD reply at 4 (In initial comments, presubscription software should be 1996. We note that the arrangement by which GTE ‘‘GSA favored a ’multi-PIC’ arrangement. * ** deployed in each end office or at a Hawaiian Telephone Company provides a third Although there was conceptual support for eventual carrier choice for international calling is a unique, implementation of the ’multi-PIC’ methodology, it single tandem location and proposes interim solution that uses a combination of carrier is clear that the technical and economic feasibility that the Commission require end office identification codes and switch routing databases. of this approach has not yet been demonstrated.’’); equal access rather than centralized This solution is not suitable for nationwide GVNW comments at 6 (‘‘[T]he FCC should not equal access.105 Specifically, MCI argues deployment because the switch database is too require [the smart-PIC method] on a nationwide limited in size and the supply of CICs too small to basis or schedule, as this will result in uneconomic that end office equal access represents a support an adequate number of interLATA/ network upgrades, added costs for the incumbent superior form of access to the extent that international carrier combinations in many areas of LECs, and higher prices to customers and the country. Ex parte letter from F.G. Maxson, GTE competitors’’). 103 See, e.g., Pennsylvania Commission comments Service Corporation, to William F. Caton, Acting 100 See, e.g., Ameritech comments at 18–19; AT&T at 2; SBC reply at 2; PacTel reply at 10–11. Secretary, Federal Communications Commission, comments at 5 n.6; CBT comments at 4; GVNW 104 In this context, presubscription information filed in CC Docket No. 96–98, August 6, 1996. comments at 3; Indiana Commission Staff refers to the information that is used by the switch 94 NPRM at para. 210. comments at 9; Sprint comments at 5. to determine which interconnecting carrier carries 95 Id. 101 SBC reply at 3; GTE reply at 12–13. and bills for the call. 96 Id. 102 47 U.S.C. 251(d)(3). 105 MCI comments at 5. Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations 47295 it enhances redundancy and reduces access in rural areas where it otherwise requirements on a BOC before the post dial delays.106 Centralized equal would not be technically or earlier of the date on which a BOC is access should not be permitted, MCI economically feasible.116 authorized to provide in-region, maintains, insofar as that approach interLATA services in a state or three c. Discussion requires that all end offices receive the years from the date of enactment of the equal access features from the tandem 54. The issue of presubscription 1996 Act.119 The NPRM sought and any interruption in service from the software deployment was not raised in comment on what implementation tandem can affect a larger number of the NPRM and, as a result, few schedule should be adopted for all subscribers on the system.107 In commenters address it. We conclude LECs.120 addition, because calls are routed from that the record is not sufficient for us to 56. The BOCs generally argue that the end office to the tandem and back, require LECs, pursuant to section section 271(e)(2) establishes the relevant MCI contends that centralized equal 251(b)(3), to provide end office equal implementation schedule for all BOCs access would result in significant post- access rather than centralized equal and, thereby, obviates the need for a dial delay.108 MCI does suggest, access to competing providers of nationwide implementation schedule however, that in areas that ‘‘would not telephone toll service. No specific for BOCs.121 For example, Ameritech otherwise convert to interLATA or information is provided, let alone argues that, except in single-LATA intraLATA equal access, centralized consensus reached in this record, on states and where a state has previously equal access provides consumers at least such threshold issues as the technical ordered intraLATA presubscription, a limited form of carrier choice.’’ 109 and economic feasibility of placing the section 271(e)(2) requires a BOC to 53. Two commenters who are software in one location over another. implement intraLATA toll dialing parity centralized equal access providers We note that while MCI and Iowa ‘‘coincident with its exercise of in- oppose MCI’s position.110 Specifically, Network Services disagree generally on region, interLATA authority’’ or three Iowa Network Services and MIEAC the benefits of deployment locations, years after enactment of the 1996 Act.122 counter that centralized equal access is neither addresses such important Other parties urge the Commission to not inferior to end office equal access implementation issues as whether require BOCs to implement toll dialing and repeatedly has been found to serve different switching equipment owned parity in advance of these dates on the the public interest by the Commission by various companies might provide theory that only the states, and not the and numerous state regulatory obstacles to deployment, or the relevant Commission, are constrained by the commissions.111 MIEAC takes issue with costs associated with one deployment limitations in section 271(e)(2)(B).123 MCI’s argument that centralized equal scheme over another. Iowa Network Frontier suggests that the Commission access is inferior to end office equal Services, we further note, does not mandate that dialing parity be made access, noting that recent technological address how its proposal would available immediately for interstate, advances, and the use of SS7 trunk comport with the Commission’s intraLATA toll calls.124 AT&T asserts signaling, in particular, have improved generally prescribed requirement under that ‘‘except as provided in section which most LECs are required to call set up times and reduced post dial 271(e)(2)(B), the Commission should 112 implement equal access at end delay. Iowa Network Services calls require all Tier 1 LECs to implement offices.117 Based on the reasons stated the argument that centralized equal dialing parity, utilizing the Full 2–PIC above, and based on our concern access provides less network method, by January 1, 1997.’’ 125 NYNEX regarding the harm that could come to redundancy a ‘‘red herring’’ and notes maintains that the Commission should small telecommunications services its recent installation of a redundant recognize and give effect to state orders providers if we adopt MCI’s proposal, fiber ring facility to connect its granting deferrals or waivers of the toll we decline to adopt at this time a participating exchanges, which will dialing parity requirements.126 allow instant rerouting of traffic in the requirement prescribing the location for case of a facilities equipment failure.113 deployment of presubscription software ii. Timetable for All Other LECs Iowa Network Services also operates a under section 251(b)(3). 57. For all other LECs, other than ‘‘diversity access tandem’’ that provides C. Implementation Schedule for Toll BOCs, the 1996 Act provides no switch redundancy should its primary Dialing Parity timetable for implementing toll dialing tandem fail.114 MIEAC argues that parity. The NPRM sought comment on 1. Background and Comments centralized equal access networks fully what implementation schedule should comply with the toll dialing parity i. Timetable for BOCs be adopted for all LECs.127 requirement of section 251(b)(3) insofar 55. Section 271(e)(2)(A) requires a 58. USTA argues that there is no need as these networks support 2–PIC BOC to provide intraLATA toll dialing for a uniform implementation schedule 115 presubscription. Finally, MIEAC and parity throughout a state ‘‘coincident and suggests that the Commission Iowa Network Services contend that with’’ its exercise of authority to permit states to adopt their own 128 centralized equal access represents an provide in-region, interLATA services timetables. PacTel similarly opposes appropriate method of providing equal in that state.118 Section 271(e)(2)(B) our adoption of an implementation precludes most states from imposing 106 Id. intraLATA toll dialing parity 119 47 U.S.C. 271(e)(2)(B). Exceptions from this 107 Id. requirement are made for single-LATA states and 108 Id. MCI does not attempt to define or quantify states that issued an order by December 19, 1995, 116 the term ‘‘significant.’’ Id. at 5–7; Iowa Network Services joint reply requiring intraLATA toll dialing parity. Id. at 2 (noting that centralized equal access fosters 120 109 Id. at 5 n.7. NPRM at para. 212. intraLATA and interLATA competition by making 110 121 See, e.g., Ameritech comments at 19. See generally Iowa Network Services joint equal access technology available in exchanges 122 Id. reply; MIEAC reply. where installation of end office equal access is 123 111 Iowa Network Services joint reply at 4–7; economically or technically infeasible). See, e.g., Sprint comments at 6 n.3. 124 MIEAC reply at 2–4. 117 See generally MTS and WATS Market Frontier comments at 2. 112 MIEAC reply at 3. Structure, CC Docket No. 78–72, Phase III, 100 125 AT&T comments at 5. 113 Iowa Network Services joint reply at 5. F.C.C. 2d 860 (1985) 50 FR 52964 (December 27, 126 NYNEX comments at 3 n.7. 114 Id. 1985). 127 NPRM at para. 212. 115 MIEAC reply at 3–4. 118 47 U.S.C. 271(e)(2)(A). 128 USTA reply at 3–4. 47296 Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations schedule and advocates that all LECs be most appropriate to define the area with’’ their provision of in-region, permitted to design their own schedules within which they will offer intraLATA interLATA or in-region, interstate toll based on ‘‘local conditions and state toll dialing parity. State commissions in services because it would place certain requirements.’’ 129 In contrast, MCI urges ruling upon such a choice of LATA carriers in violation of this order upon the Commission to adopt an association shall determine whether the its release and would impose an implementation schedule based on the proposed LATA association is pro- unreasonably short timetable on others. concern that incumbent LECs, if competitive and otherwise in the public To the extent that a LEC is unable to permitted to design their own interest. We note, however, as discussed comply with the August 8, 1997 timetables, would delay implementation above, that states may redefine the toll deadline, that LEC is required to notify because they lack incentive to dialing parity requirement based on the Commission’s Common Carrier implement dialing parity quickly. TCC state, rather than LATA, boundaries Bureau by May 8, 1997. The notification proposes that non-BOC incumbent LECs where a state deems such a requirement must state, in detail, the justification for should be required to provide toll to be pro-competitive and otherwise in the LEC’s inability to comply by August dialing parity by no later than January the public interest. 8, 1997 and set forth the date by which 1, 1997.130 NECA argues that a LEC’s 60. We decline to adopt the it will be able to implement toll dialing obligation to provide dialing parity recommendations of parties that urge us parity.136 Finally, we have considered should be triggered only upon the to require BOCs to provide toll dialing the arguments of LECs that seek to make receipt of a bona fide request from a parity in a state before the earlier of the their toll dialing parity obligation competitive toll provider.131 Finally, date on which those BOCs receive contingent upon the receipt of a bona MFS suggests that incumbent LECs be authority to provide in-region, fide request and conclude that special required to implement intraLATA toll interLATA services in that state or implementation schedules for smaller dialing parity within a year of the February 8, 1999. Subject to the LECs are unnecessary because these effective date of the rules, or by the date requirements of the 1996 Act, we do, LECs may petition their state previously ordered by a state however, authorize states to determine commission, pursuant to section commission.132 MFS also asks the whether a more accelerated 251(f)(2), for a suspension or Commission to adopt rules specifying implementation schedule should be modification of the application of the that in any geographic area where a BOC utilized for LECs operating within their dialing parity requirements.137 is not required to provide intraLATA jurisdictions.134 Where a state issued an 62. In summary, we establish the presubscription pursuant to section order by December 19, 1995 requiring a following toll dialing parity 271(e)(2)(A), no other LEC in that BOC to implement toll dialing parity in implementation schedule and filing geographic area will be required to advance of the implementation deadlines for all LECs: (a) Each LEC, including a BOC, must provide toll dialing parity until the BOC deadlines we establish, we do not implement intraLATA and interLATA is required to provide it.133 intend to extend the toll dialing parity toll dialing parity based on LATA implementation deadline for the BOC 2. Discussion boundaries no later than February 8, beyond the implementation deadline 1999. If the state commission elects not 59. As discussed above, we require all established by that state. In addition, to evaluate a LEC’s toll dialing parity LECs to provide intraLATA and where a state issued an order prior to implementation plan,138 the LEC must interLATA toll dialing parity no later the release of this Order requiring a file that plan with the Commission not than February 8, 1999. In addition, we LEC, other than a BOC, to implement later than 180 days before February 8, require a LEC, including a BOC, to toll dialing parity in advance of the provide toll dialing parity throughout a 1999. implementation deadlines we establish, (b) Except as provided in state based on LATA boundaries we do not intend to extend the toll subparagraph (c) below, a LEC, coincident with its provision of in- dialing parity implementation deadline including a BOC, that begins to provide region, interLATA or in-region, for the LEC beyond the implementation in-region, interLATA toll services or in- interstate toll services in that state. As deadline established by that state. region, interstate toll services in a state discussed below, for non-BOC LECs that 61. We further conclude that LECs, before February 8, 1999, must currently are providing, or within a year other than BOCs, that begin providing implement intraLATA and interLATA of release of this Order begin to provide, in-region, interLATA or in-region, toll dialing parity based on LATA in-region, interLATA or in-region, interstate toll services before August 8, boundaries coincident with its interstate toll service, we provide a 1997, including LECs that currently provision of in-region, interLATA or in- grace period during which those LECs offer such services, are not required to region, interstate toll services. If the will be able to provide such toll service implement toll dialing parity until state commission elects not to evaluate before having to provide toll dialing August 8, 1997.135 We do not mandate its toll dialing parity implementation parity to their customers. Moreover, compliance with the toll dialing parity non-BOC LECs that implement requirement by these LECs ‘‘coincident 136 As recently noted in the context of waiver intraLATA and interLATA toll dialing petitions for certain caller identification rules, the parity may choose whichever LATA 134 See 47 U.S.C. 271(e)(2)(b). Commission will not hesitate to take enforcement within their state that they deem to be 135 We note that the 1996 Act distinguishes action, including monetary fines and other remedial between in-region services, for which BOCs must measures against carriers that are unable to provide receive Commission authority to provide under a compelling justification for failing to comply with 129 PacTel reply at 12. section 271(d)(1), 47 U.S.C. 271(d)(1), and out-of- Commission rules, particularly when they have 130 TCC comments at 4. region services, which BOCs are currently been given a reasonable period within which to 131 NECA reply at 3–4; see also Rural Tel. authorized to provide. See 47 U.S.C. 271(b)(1), comply. See Rules and Policies Regarding Calling Coalition comments at 6–7; GVNW comments at 5. (b)(2). We note that for non-BOC LECs, it is the Number Identification Service—Caller ID, CC 132 MFS comments at 6. provision of toll services outside of the LEC’s study Docket No. 91–281, Memorandum Opinion and 133 Id.; cf. Ohio Commission comments at 9 (new area or the provision of interstate toll services that Order, DA 96–875 (1996) 61 FR 20746 (May 8, entrant LECs should be required to implement triggers the duty to provide toll dialing parity. We 1996). intraLATA toll dialing parity coincident with their use the term in-region, interLATA or in-region 137 47 U.S.C. 251(f)(2). offering of local telephone service since new interstate toll services to include those toll services, 138 For a discussion of the content of and entrants can equip their network switches to the provision of which by a LEC triggers the LEC’s procedures relating to the toll dialing parity provide dialing parity before installation). duty to provide toll dialing parity. implementation plans, see section II.B(2) supra. Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations 47297 plan, the LEC must file such plan with b. Comments concern that customers may receive the Commission not later than 180 days 65. Nearly all parties concur with the bills for calling CMRS customers before the date on which it begins to Commission’s proposed interpretation without advance notice that they are 149 provide in-region, interLATA toll of the local dialing parity requirements going to be billed for such calls. services. of section 251(b)(3).142 Ameritech c. Discussion (c) A LEC, other than a BOC, that contends, however, that the 1996 Act begins to provide in-region, interLATA requires only that local calls between 67. We adopt our tentative conclusion or in-region, interstate toll services in a competing LECs be dialed without the that, pursuant to section 251(b)(3), a state before August 8, 1997, must use of an access code.143 Ameritech LEC is required to permit telephone implement intraLATA and interLATA states that, while the Senate version of exchange service customers within a toll dialing parity based on LATA the dialing parity provision would have defined local calling area to dial the boundaries by August 8, 1997. If the required LECs to provide customers same number of digits to make a local LEC is unable to comply with this with the ability ‘‘to dial the same telephone call, notwithstanding the August 8, 1997, implementation number of digits’’ when using any identity of a customer’s or the called deadline, the LEC must notify the carrier providing telephone exchange party’s local telephone service provider. Commission’s Common Carrier Bureau and exchange access service in the same As we stated in the NPRM, we believe by May 8, 1997. At that time it must area, Congress narrowed the dialing that this interpretation of the dialing state its justification for noncompliance parity obligation in the final legislation parity requirement as applied to the by August 8, 1997, and set forth the date to require only that calls between provision of telephone exchange service by which it will be able to implement competing LECs be dialed without the would best facilitate the introduction of toll dialing parity. If the state use of an access code.144 In response to competition in local markets by commission elects not to evaluate the Ameritech’s proposed interpretation of ensuring that customers of competitive LEC’s toll dialing parity implementation the local dialing parity requirements, service providers are not required to plan, the LEC must file such plan with the Ohio Consumers’ Counsel asserts dial additional access codes or personal the Commission not later than 90 days that it does ‘‘not believe that consumers identification numbers in order to make after publication of this Order in the would see any real functional difference local telephone calls. We disagree with Federal Register. between having to dial extra digits and Ameritech’s view that Congress 63. We further conclude that the 1996 having to dial an access code’’ and, intended only to preclude the use of Act does not authorize the Commission thus, urges that customers not be access codes and did not intend to to give effect to a state order that required to dial access codes or extra preclude the dialing of extra digits. The purports to grant a BOC a deferral, digits when using a competing fact that Congress ultimately adopted a waiver or suspension of the BOC’s provider’s services.145 dialing parity definition that precludes obligation to implement dialing parity. 66. Ameritech also asks the ‘‘the use of any access code’’ 150 does not We note that section 251(f)(2) provides Commission to clarify that ‘‘the dialing constrain the Commission from procedures for suspending or modifying parity obligation applies only to precluding the dialing of extra digits, application of the dialing parity competing carriers that provide both including access codes. Given that the requirements only for certain LECs, i.e., telephone exchange service and statute does not define the term ‘‘access those ‘‘with fewer than 2 percent of the telephone toll service (i.e., competing code,’’ we conclude that our Nation’s subscriber lines installed in the LECs).’’ 146 Finally, USTA urges the interpretation of the local dialing parity 139 aggregate nationwide.’’ Given that Commission to clarify that section requirement will avoid potential section 251 contains no comparable 251(b)(3) does not include an obligation disputes concerning what is and what is procedures for larger LECs, we are to provide dialing parity to CMRS not an ‘‘access code.’’ We are also persuaded that Congress intended the providers.147 USTA contends that the persuaded by the argument advanced by dialing parity requirements that we provision of dialing parity to CMRS the Ohio Consumers’ Counsel that adopt pursuant to section 251(b)(3) to providers by LECs would complicate consumers would not perceive a apply, without exception, to all LECs implementation of ‘‘sender pays’’ functional difference between having to with 2 percent or more of the Nation’s arrangements that have been adopted in dial extra digits and having to dial an subscriber lines. certain states if dialing parity were access code when using a competing D. Implementation of the Local Dialing interpreted to preclude the use of extra provider’s services. Parity Requirements digits and/or recorded announcements 68. We conclude that Ameritech’s associated with a ‘‘sender pays’’ additional argument that the dialing 1. In General arrangement.148 USTA expresses parity obligation applies only to a. Background competing carriers that provide both 142 telephone exchange service and 64. The NPRM tentatively concluded See, e.g., ALTS comments at 4; GTE comments at 8; Ohio Commission comments at 8. telephone toll service, represents an that, pursuant to section 251(b)(3), a 143 Ameritech comments at 3–4. Notwithstanding impermissibly narrow reading of the LEC is required to permit telephone its interpretation of the local dialing parity requirements, Ameritech notes that it has exceeded statute. We find that the phrase exchange service customers within a ‘‘providers of telephone exchange defined local calling area to dial the these requirements by establishing interconnection arrangements that allow customers of competing service and telephone toll service’’ same number of digits to make a local LECs to complete calls by dialing the same number telephone call, notwithstanding the of digits. Id. at 4. sender pays arrangement, the customer typically identity of a customer’s or the called 144 Id. receives information regarding the price of the call party’s local telephone service 145 Ohio Consumers’ Counsel reply at 2. before the call is placed. Once the customer provider.140 The NPRM sought comment 146 Ameritech comments at 3 n.6 (emphasis in receives this information, the customer then may on this tentative conclusion.141 original). decide whether or not to complete the call. Sender 147 USTA comments at 5. pays arrangements are atypical insofar as it is the 148 Id. In this context, the term ‘‘sender pays’’ CMRS customer who generally pays the cost of 139 47 U.S.C. 251(f)(2). refers to an arrangement under which a customer airtime for terminating calls. 140 NPRM at para. 211. who originates a call to a CMRS customer pays the 149 Id. 141 Id. cost of airtime for terminating the call. Under a 150 47 U.S.C. 153(15). 47298 Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations imposes an obligation on LECs to provider and make local telephone calls fulfill the local dialing parity mandate provide dialing parity to providers of without dialing extra digits will be of section 251(b)(3). Given that solely telephone exchange service, to accomplished through the unbundling, acquisition of a central office code by a providers of solely telephone toll number portability and interconnection LEC would not necessarily ensure that service, or to providers of both requirements of section 251.154 The the LEC’s customers would be relieved telephone toll and exchange service. We NPRM sought information and comment of an obligation to dial extra digits, believe that this interpretation is as to how the local dialing parity access codes or some other special consistent with both the language of the requirement should be implemented.155 dialing protocol, the provision of statute and Congress’ intent to 70. The parties generally agree that nondiscriminatory access to telephone encourage the entry of new competitors local dialing parity will be numbers does not by itself ensure local in both the local and toll markets.151 We accomplished through implementation dialing parity. Rather, we find that reject USTA’s argument that the section of the unbundling, number portability under section 251(b)(3) each LEC must 251(b)(3) dialing parity requirements do and interconnection requirements of ensure that its customers within a not include an obligation to provide section 251.156 Parties add to this list the defined local calling area be able to dial dialing parity to CMRS providers.152 To 1996 Act’s equal access requirements.157 the same number of digits to make a the extent that a CMRS provider offers A few parties contend that local dialing local telephone call notwithstanding the telephone exchange service, such a parity is assured once competing identity of the calling party’s or called provider is entitled to receive the providers of telephone exchange service party’s local telephone service provider. benefits of local dialing parity. are permitted nondiscriminatory access 3. Non-Uniform Local Calling Areas Regarding USTA’s argument that to telephone numbers.158 applying section 251(b)(3) in a way that a. Background b. Discussion benefits CMRS providers could 72. The NPRM tentatively concluded complicate implementation of sender 71. We anticipate that local dialing that, pursuant to section 251(b)(3), a pays arrangements in some states, we parity will be achieved upon LEC is required to permit telephone conclude that the record before us is implementation of the number exchange service customers within a insufficient to determine whether, or portability and interconnection defined local calling area to dial the under what circumstances, sender pays requirements of section 251. We also same number of digits to make a local arrangements, including those requiring concur with the view that the ability of telephone call, notwithstanding the the dialing of extra digits or recorded competing local exchange service identity of a customer’s or the called announcements, are consistent with the providers to receive telephone numbers party’s local telephone service 1996 Act. Although we do not intend to on a nondiscriminatory basis is critical provider.159 The NPRM did not address preclude the states from lawfully to the achievement of local dialing the potential dialing parity implications enforcing legitimate consumer parity. We believe that the of non-uniform local calling areas 160 nor protection policies that do not have an interconnection requirements that did it address the potential impact of anticompetitive impact, we cannot section 251(c)(2) imposes on incumbent our proposed interpretation of the local conclude on this record that the local exchange carriers will reduce the dialing parity obligation on local calling arrangements USTA describes would be likelihood that customers of a area boundaries.161 permissible. Finally, given our competing LEC will have to dial an expectation that local dialing parity will access code to reach a customer of the b. Comments be achieved through LECs’ compliance incumbent LEC insofar as the two 73. A number of parties express with other section 251 requirements, we networks are connected. Number concern about the potential do not adopt a timetable for portability will ensure that customers interrelationship between our proposed implementing the local dialing parity switching local service providers will interpretation of the local dialing parity requirements. not need to dial additional digits to requirements and local calling area make local telephone calls. Likewise, 162 2. Local Dialing Parity Methodologies boundaries. For example, WinStar allowing every telecommunications cautions the Commission that by a. Background and Comments carrier authorized to provide local requiring that customers ‘‘within a 69. In the NPRM, we stated our telephone service, exchange access, or defined local calling area’’ be able to expectation that the local dialing parity paging service in an area code to have dial the same number of digits to make obligations would not be achieved at least one NXX in an existing area a local telephone call, certain parties through presubscription.153 Rather, we code also reduces the potential local may interpret this to require that a anticipated that a customer’s ability to dialing disparity that may result if competing provider of local exchange select a telephone exchange service competing LECs can only give service must define its local calling area customers numbers from a new area 151 As the U.S. Court of Appeals for the Fifth code. We therefore decline to prescribe 159 NPRM at para. 211. Circuit stated in Peacock v. Lubbock Compress now any additional guidelines 160 We use the term ‘‘non-uniform local calling Company, ‘‘the word ‘and’ is not a word with a addressing the methods that LECs may area’’ to refer to a situation in which a telephone single meaning, for chameleonlike, it takes its color use to accomplish local dialing parity. exchange service provider’s local calling area is from its surroundings.’’ The court held that ‘‘[i]n either larger or smaller than that of another the construction of statutes, it is the duty of the We also conclude that, contrary to the telephone exchange service provider that is Court to ascertain the clear intention of the views expressed by some parties, the providing telephone exchange service in the same legislature. In order to do this, Courts are often provision of nondiscriminatory access geographic area. compelled to construe ‘or’ as meaning ‘and,’ and to telephone numbers, by itself, does not 161 Insofar as parties contend that the section again ‘and’ as meaning ‘or’.’’ Peacock v. Lubbock 251(b)(3) dialing parity requirements compel the Compress Company, 252 F.2d 892, 893 (5th Cir. use of a ten-digit dialing plan for local calls within 154 1958) (citing United States v. Fisk, 70 U.S. 445, 448 Id. an area code overlay (see, e.g., MFS comments at (1865). 155 NPRM at paras. 209, 211. 3–5), we note that these concerns are addressed 152 See section X of the First Report and Order for 156 See, e.g., SBC comments at 3 n.4; NEXTLINK more fully below in paragraphs 286 through 287. a discussion of the applicability of section 251 to comments at 8. 162 See, e.g., WinStar comments at 10–11; GSA/ CMRS providers. 157 See, e.g., BellSouth comments at 9. DOD comments at 4–5; Florida Commission 153 NPRM at para. 207 n.284. 158 See, e.g., U S WEST comments at 6. comments at 3. Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations 47299 to match the local calling area of the by itself, does not contravene our to assist in this function.176 Conversely, incumbent LEC.163 GSA/DOD maintains interpretation of the local dialing parity others maintain that responsibility for that dialing is not truly at parity if requirements unless such plans are anti- the notification and education of different carriers have different competitive in effect.171 By requiring consumers should be imposed on the definitions of the geographic areas in that all customers ‘‘within a defined carriers seeking those customers’ which calls can be made with seven- local calling area’’ be able to dial the business, as part of those carriers’ digit dialing.164 To address the potential same number of digits to make a local marketing efforts.177 GSA/DOD favors dialing parity issue that may arise when telephone call, we do not intend to letting carriers ‘‘fight it out among a new entrant’s ‘‘network coverage’’ is require a competing provider of local themselves,’’ noting that carriers more limited than the incumbent LEC’s, exchange service to define its local themselves will have every incentive to GSA/DOD recommends that the calling area to match the local calling make sure that prospective customers Commission adopt rules that ensure that area of an incumbent LEC. We further are aware of their choices.178 PacTel local calling areas are consistently do not intend to require a competing suggests that states are in the best defined for LEC wholesale and retail provider of telephone exchange service position to assess the informational services.165 that voluntarily chooses to provide ten- needs of their citizens.179 Several 74. GTE contends that ‘‘[s]o long as digit as opposed to seven-digit dialing commenters express concern that any new entrants have the technical ability in a local calling area to modify its customer notification requirement must to deploy equipment necessary to offer dialing plan in this instance in order to recognize that the details of any such the same seven-digit dialing as the conform to the dialing plan of another notification plan should reflect local incumbent LEC, dialing parity should be LEC. No other commenter addressed circumstances, including local carrier deemed to exist even if one or more of GSA’s proposal that the Commission selection options, rates and dialing the new entrants ultimately chooses to adopt rules that ensure that local calling plans.180 Ameritech maintains that a provide ten-digit dialing.’’ 166 To areas are consistently defined for LEC ‘‘carrier-neutral customer notification of illustrate its point that all local calls wholesale and retail services. Therefore, the toll dialing parity selection cannot be dialed using the same number we conclude that the record is processes is in the public interest and of digits, NYNEX notes that in the New insufficient to permit us to take such should be a part of the implementation York City Metro LATA local calls span action at this time. of any toll dialing parity plan.’’ 181 three different area codes, with seven- E. Consumer Notification and Carrier digit dialing within an area code and 78. While several commenters urge Selection Procedures the Commission to adopt rules for ten-digit dialing between area codes.167 balloting,182 the majority of parties urge Finally, the Florida Commission a. Background us to reject this option.183 expresses concern regarding the Parties that 76. Section 251(b)(3) does not oppose balloting argue that such potential customer confusion that may specifically require that procedures be result if customers in local calling areas decisions should be left to the established to permit consumers to 184 are required to dial ten rather than the individual states and claim that choose among competitive 185 currently dialed seven digits to make balloting is confusing to customers, telecommunications providers (e.g., 186 local ‘‘Extended Calling Service’’ costly, and forces consumers to make through balloting).172 The NPRM sought selections before they might otherwise calls.168 comment as to whether the Commission choose to do so.187 Commenters also c. Discussion should require LECs to notify argue that competition for customers consumers about carrier selection 75. A telephone call requiring seven- will ensure that carriers notify procedures or impose any additional digit dialing is not necessarily a local customers as to how their services can consumer education requirements.173 188 call 169 and a telephone call requiring be obtained. In stating its opposition We also sought comment on an ten-digit dialing is not necessarily a toll to a balloting requirement, MFS alternative proposal that would make call.170 Disparity in local dialing plans, observes that: competitive telecommunications 163 WinStar comments at 10–11 (‘‘The providers responsible for notifying 176 See, e.g., Illinois Commission comments at 67; Commission should proceed carefully to ensure that customers about carrier choices and ACSI comments at 10 (incumbent LECs should be it does not inadvertently limit carriers from selection procedures through their own required to provide bill inserts to customers alerting experimenting with local calling areas.’’); see also, marketing efforts.174 them to opportunity to select alternative service U S WEST comments at 6 (where dialing parity provider). disputes arise over fact that local calling areas of b. Comments 177 See, e.g., CBT comments at 5; Bell Atlantic two competing LECs do not match, states should comments at 5; Frontier comments at 4; BellSouth resolve such disputes since they are familiar with 77. Several parties contend that the reply at 4; GTE reply at 15. local calling areas and calling patterns in that state). responsibility for consumer education 178 GSA/DOD comments at 6. 164 GSA/DOD comments at 4. should be borne, at least in part, by the 179 PacTel comments at 13. 165 Id. at 5. incumbent LECs 175 and claim that 180 See, e.g., Ameritech comments at 21; GTE 166 GTE comments at 8 n.10. incumbent LECs are uniquely situated comments at 12; PacTel reply at 13. 167 NYNEX comments at 3 n.6. 181 Ameritech comments at 20. 168 Florida Commission comments at 3. generally are not assessed on a per call basis. Thus, 182 See, e.g., NEXTLINK comments at 9; Excel 169 We note that several states permit seven-digit the construct of local calling areas serves as the comments at 7. dialing for toll calls. North American Numbering basis by which carriers price their services. 183 See, e.g., Ohio Consumers’ Counsel comments Plan, Area Codes 1996 Update, Bellcore (January 171 at 3; SBC reply at 1; MFS reply at 12; CBT reply 1996) at 14. For example, within the 518 area code See, e.g., the discussion at paras. 281–291 at 3–4. a call from Clifton Park, New York to Hague, New regarding the discriminatory and anticompetitive 184 York is a toll call that can be dialed with seven nature of a service-specific or technology-specific See, e.g., Florida Commission comments at 2; digits. overlay in connection with area code relief plans. PacTel reply at 13. 172 185 170 Section 3(48) defines ‘‘telephone toll service’’ 47 U.S.C. 251(b)(3). See, e.g., Ohio Commission comments at 7. as ‘‘telephone service between stations in different 173 NPRM at para. 213. 186 See, e.g., GTE comments at 13; Sprint exchange areas for which there is made a separate 174 Id. comments at 4. charge not included in contracts with subscribers 175 See, e.g., ACSI comments at 10; Ameritech 187 Ameritech comments at 20. for exchange service.’’ 47 U.S.C. 153(48). By comments at 20; California Commission comments 188 See, e.g., GTE comments at 13; U S WEST contrast, charges for calls within a local calling area at 4. comments at 8. 47300 Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations

The long-distance market today differs available, and we perceive no need to interLATA toll market, such markedly from the situation in the mid- prescribe detailed consumer notification nonselecting customers should dial a 1980’s, when non-dominant carriers were or carrier selection procedures at this carrier access code to route their virtually unknown to most consumers and balloting was mandated as a way of time. We do believe, however, that intraLATA toll or intrastate toll calls to educating consumers to their ability to states may adopt such procedures. The the carrier of their choice until they choose a carrier. No such education is states are best positioned to determine make a permanent, affirmative selection. needed today, because most consumers are the consumer education and carrier This action eliminates the possibility well aware of their long-distance choices, selection procedures that best meet the that a LEC could designate itself and the carriers have readily available means needs of consumers and automatically as a new customer’s of contacting those who are not.189 telecommunications services providers intraLATA or intrastate toll carrier 79. Commenters also raised a number in their states. Thus, states may adopt without notifying the customer of the of issues related to consumer consumer education and carrier existence of alternative carrier choices. notification and carrier selection selection procedures that will enable Finally, notwithstanding our decision to methods. For example, PacTel asserts consumers to select alternative carriers entrust the issues of consumer that ‘‘the default carrier for both existing for their local and toll services. We notification and carrier selection to the and new customers who do not actively further agree that a customer states, we emphasize that all choose an intraLATA toll provider 190 notification requirement should take telecommunications carriers remain should be the dial-tone provider.’’ into consideration local circumstances. subject to the requirements of section Sprint agrees that ‘‘existing customers The states may adopt balloting, 258 as well as any verification or ‘‘anti- who are currently obtaining intraLATA consumer education and notification slamming’’ 197 procedures that the toll service from the dial tone provider, requirements for services originating Commission may adopt to prevent and do not indicate a desire to change within their states, that are not anti- unauthorized changes in a customer’s carriers, should remain with that competitive in effect. States also may selection of a provider of telephone intraLATA toll provider.’’ 191 Sprint adopt measures to prevent abuse of the exchange or telephone toll service.198 rejects PacTel’s proposal, however, ‘‘to customer notification and carrier default new customers who do not F. Cost Recovery selection processes. All such choose an intraLATA toll provider to procedures, however, must be a. Background the dial tone provider.’’ 192 Concerning whether customers should be assessed a consistent with the guidelines set forth 82. In the NPRM, the Commission ‘‘PIC change charge’’ when they select above with respect to the requisite noted that the 1996 Act does not specify an alternative provider of telephone toll categories of toll traffic for which how LECs will recover the costs or telephone exchange service, parties consumers must be entitled to associated with providing dialing parity propose allowing customers a ‘‘grace presubscribe and the toll to competing providers.199 The period’’ during which they could switch presubscription method that we require Commission therefore sought comment carriers without charge.193 The Ohio carriers to implement. We note that the on: (1) What, if any, standard should be Consumers’ Counsel supports a cap on consumer notification requirements used for arbitration to determine the the cost of initiating both local and toll already imposed by states’ intrastate, dialing parity implementation costs that service with a new carrier, noting that intraLATA toll dialing parity orders LECs should be permitted to recover; a ‘‘customer’s old carrier should not be have required LECs to inform customers and (2) how those costs should be able to impose an ‘exit fee’ upon the either once or twice of their opportunity recovered.200 196 customer who switches.’’ 194 Finally, to choose an alternative carrier. We b. Comments GVNW urges that the Commission’s anticipate that any subsequently rules, complaint procedures and imposed consumer notification 83. At the outset, we note that there penalties for ‘‘slamming’’ be applied to requirements would be no more be does not appear to be a consensus any carrier selection procedures that the burdensome, and, in particular, would among commenters as to either of the Commission adopts with respect to local not require more than two notifications exchange service providers.195 to consumers of their opportunity to 197 The Commission has defined slamming as the choose alternative carriers to transport unauthorized conversion of a customer’s c. Discussion their intraLATA toll calls. interexchange carrier by another interexchange carrier, an interexchange resale carrier, or a 80. We agree with those commenters 81. We conclude that ‘‘dial-tone subcontractor telemarketer. Cherry who observe that competitive providers providers’’ should not be permitted Communications, Inc. Consent Decree, 9 FCC Rcd of telephone exchange and telephone automatically to assign to themselves 2986, 2987 (1994). toll service have an incentive to make new customers who do not affirmatively 198 Section 258 makes it unlawful for any telecommunications carrier to ‘‘submit or execute a consumers aware of the choices choose a toll provider. New customers change in a subscriber’s selection of a provider of of a telephone exchange service telephone exchange service or telephone toll service 189 MFS comments at 6. provider who fail affirmatively to select except in accordance with such verification 190 PacTel comments at 11. a provider of telephone toll service, after procedures as the Commission shall prescribe.’’ 47 191 Sprint reply at 5–6 n.8. being given a reasonable opportunity to U.S.C. 258(a). The section further provides that: 192 [a]ny telecommunications carrier that violates the Id. On a related issue, AT&T urges the do so, should not be assigned Commission to intercede where abuse of the verification procedures described in subsection (a) customer notification process occurs, such as when automatically to the customer’s dial- and that collects charges for telephone exchange a LEC uses its ‘‘provision of exchange service to tone provider or the customer’s service or telephone toll service from a subscriber influence toll PIC choices.’’ AT&T comments at 6 preselected interLATA toll or interstate shall be liable to the carrier previously selected by n.9. AT&T adds that the Commission should the subscriber in an amount equal to all charges prohibit LECs from extending interLATA PIC toll carrier. Rather, we find that paid by such subscriber after such violation. ‘‘freezes’’ to intraLATA traffic. Id. consistent with current practices in the 47 U.S.C. 258(b). Section 258 extends the 193 Ohio Commission comments at 7 (proposing slamming prohibition to all telecommunications 90 day grace period with a charge for subsequent 196 See, e.g., Adoption of rules relating to intra- carriers, not just interexchange carriers, as is the changes); Citizens Utilities comments at 6–7 Market Service Area presubscription and changes case under the Commission’s current Part 64 rules. (proposing 6 month grace period). in dialing arrangements related to the See 47 CFR § 64.1100. 194 Ohio Consumers’ Counsel reply at 2. implementation of such presubscription, Interim 199 NPRM at para. 219. 195 GVNW comments at 7. Order (Ill. Comm. Comm’n. Apr. 7, 1995). 200 Id. Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations 47301 two cost recovery issues raised in the could include, for example, hardware from the two opposing positions. NPRM. The parties are generally divided costs, software costs, and consumer Interexchange carriers and competitive into two positions: (1) Interexchange education costs.206 GSA/DOD asks the carriers reject the suggestion that they carriers and competitive carriers prefer Commission to ‘‘view LEC claims for shoulder the full cost burden for a Commission standard under which large cost compensation with intraLATA dialing parity, and urge that, carriers could recover from competing considerable skepticism,’’ and suggests at a minimum, costs be spread among providers only the specific incremental that the Commission ‘‘distribute any all service providers that enjoy dialing costs of providing intraLATA toll verifiable incremental costs associated parity.213 AT&T states that ‘‘the proposal dialing parity; and (2) incumbent LECs with achieving dialing parity as a by Ameritech and Bell Atlantic to and several states prefer that no national percentage surcharge on the bills of all recover implementation costs standards be developed, and that cost carriers, including the incumbent exclusively from their competitors recovery issues be left either to the LECs.’’ 207 underscores the need for explicit states or to intercarrier negotiations. 87. Taking the opposite view, BOC national rules * * * [n]othing could be 84. AT&T suggests that carriers only commenters, together with GTE and more * * * harmful to competition, be entitled to recover incremental costs USTA, argue that there is essentially no than allowing incumbent LECs to charge directly associated with the need for the Commission to adopt cost a fee for new entrants for the ‘‘privilege’’ implementation of dialing parity, and recovery measures for dialing parity, of competing with them.’’ 214 GSA/DOD states that the Commission should and that cost recovery issues are best also urges the Commission to ‘‘reject’’ 208 ‘‘explicitly exclude (a) recovery of costs left for the states to address. Several the proposals of Bell Atlantic and intended to reimburse an incumbent state public utility commissions also SBC.215 MFS correctly notes that there carrier for revenues it expects to lose as argue that, given the state-specific was ‘‘little consensus’’ on this issue, and a result of implementing dialing parity nature of intraLATA cost recovery states ‘‘it is entirely inappropriate in a ** * as well as (b) costs associated issues, and the omission of a specific competitive environment that an with network upgrades that are not cost-recovery standard from Congress in individual carrier’s costs be recovered necessary to implement dialing section 251(b)(3), the individual states from its competitors.’’ 216 The Ohio parity.’’ 201 AT&T further suggests that are in the best position to address these Consumer’s Counsel states that 209 the Commission mandate an ‘‘Equal issues. In support of these arguments, Ameritech’s ‘‘cost-causer’’ proposal Access Recovery Charge’’ on all some state commenters have provided ‘‘ignores the fact that the benefits of providers of toll service based on the Commission with detailed dialing parity are network-wide.’’ 217 descriptions of their current minutes of use subject to dialing parity, 90. Incumbent LECs maintain that the and that this charge be tariffed mechanisms for recovering intraLATA 210 Commission should not set national cost separately from any access charges, presubscription costs. 88. Ameritech argues that dialing recovery standards, and that this matter approved by the state commission, and remains the prerogative of the states.218 amortized over a period not to exceed parity costs ‘‘should be recovered under 202 normal regulatory principles from the GTE ‘‘strongly opposes’’ AT&T’s eight years. suggestions, and PacTel states that 85. MCI appears to agree with AT&T’s cost-causer,’’ and Bell Atlantic argues ‘‘LECs cost recovery should not be proposal, stating that ‘‘incremental costs that ‘‘only carriers who will benefit from limited by noncompensatory incurred to implement dialing parity intraLATA presubscription should pay incremental methodologies or should be recovered from all carriers the costs. Unless interexchange carriers unreasonably long amortization that carry intraLATA toll on a bear the full costs of implementing requirements.’’ 219 SBC asserts that the presubscribed basis in accordance with intraLATA presubscription, exchange carrier customers who do not switch proposals of MCI and AT&T are cost causative principles.’’ 203 MCI also intraLATA toll carriers and do not ‘‘examples of regulatory micro- suggests that dialing parity costs be benefit from presubscription would management, are inconsistent with recovered on a minutes-of-use basis, as ultimately be required to pay for it.’’ 211 Congressional intent, and would also an addition to the local switching rate On the other extreme, the ** * place the major burden of dialing element, which would be separately Telecommunications Resellers parity cost recovery squarely on the identified in a tariff, and that Association states that incumbent LECs backs of incumbent LECs.’’ 220 Commission rules for cost recovery be should ‘‘shoulder the full financial ‘‘presumptively correct’’ (i.e., states can 91. GCI states that ‘‘costs should be burden of remedying this competitive depart from such rules if they can show recovered in a competitively neutral imbalance [in the intraLATA toll their mechanism is more effective).204 manner because all LECs, not just market].’’ 212 Several parties urge the Commission to incumbent LECs, must meet this 89. The reply comments reveal obligation.’’ 221 Western Alliance draw upon its cost recovery paradigms substantial disagreement among carriers for interLATA equal access, and apply contends that ‘‘costs incurred to achieve dialing parity should be included in the the same basic principles to the 206 See, e.g., Citizens Utilities comments at 6; intraLATA toll market.205 GSA/DOD comments at 6–8. investment recoverable through explicit 86. Many other competitive providers 207 GSA/DOD comments at 6–7, 8. also advocate various forms of 208 See Bell Atlantic comments at 5; GTE 213 See, e.g., Sprint reply at 12; comments at 20–21; NYNEX comments at 10–11; Telecommunications Resellers Association reply at incremental cost recovery, on a per- PacTel comments at 17; SBC comments at 9; USTA minutes of use basis, to be assessed 7; WinStar reply at 12. comments at 4. 214 AT&T reply at iii. 209 against all providers of presubscribed See Illinois Commission comments at 72; 215 GSA/DOD reply at 8. intraLATA toll services; such costs Indiana Commission comments at 9; Ohio 216 Consumers’ Counsel comments at 4; and Ohio MFS reply at 14. Commission comments at 11. 217 Ohio Consumers’ Counsel reply at 4. 201 AT&T comments at 7. 210 Id.; see also Louisiana Commission comments 218 See Bell South reply at 4; Bell Atlantic reply 202 Id. at 7. at 5; NYNEX reply at 4; PacTel reply at 18; and 203 MCI comments at 3. 211 Ameritech comments at 10; Bell Atlantic USTA reply at 5. 204 Id. at 7–8. comments at 5. 219 PacTel reply at iii. 205 See, e.g., GVNW comments at 8; MCI 212 Telecommunications Resellers Association 220 SBC reply at 8. comments at 7. comments at 8. 221 GCI reply at 2. 47302 Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations universal (service) supports.’’ 222 number portability will involve a number portability databases.227 We Finally, NECA argues that there is no different kind of system than currently determined that states could use several need for the Commission to prescribe available solutions. We tentatively allocators, including gross specific cost recovery mechanisms.223 concluded that under section 251(e)(2), telecommunications revenues, number the same cost recovery principles of lines, and number of active telephone c. Discussion should apply to long-term number numbers, to spread number portability 92. We conclude that, in order to portability. In the case of dialing parity, costs across all telecommunications ensure that dialing parity is there is a similar distinction between carriers.228 Applying the same cost implemented in a pro-competitive currently-available solutions (i.e., full 2- recovery principles to dialing parity, we manner, national rules are needed for PIC presubscription), and long-term conclude that LECs may recover the the recovery of dialing parity costs. We solutions (i.e., multi-PIC or smart-PIC incremental costs of dialing parity- further conclude that these costs should methodologies). Like number specific switch software, any necessary be recovered in the same manner as the portability, we may need to revisit the hardware and signalling system costs of interim number portability, as issue of an appropriate cost recovery upgrades, and consumer education costs mandated in our recent Number standard once other presubscription that are strictly necessary to implement Portability Order.224 Our authority to technologies become available on a dialing parity. These costs must be promulgate national cost recovery rules nationwide basis. recovered from all providers of derives from section 251(d) of the 1996 94. In the Number Portability Order, telephone exchange service and Act and section 4(i) of the 1934 Act. In we concluded that costs for number telephone toll service in the area served section 251(d), Congress directed the portability should be recovered on a by a LEC, including that LEC, using a Commission to take the necessary steps competitively-neutral basis.225 We also competitively-neutral allocator 229 to implement section 251. Section 4(i) of concluded that any recovery mechanism established by the state. Although, the 1934 Act authorizes us to take any should: (1) Not give one service under section 251(e)(2), number action we consider ‘‘necessary and provider an appreciable, incremental portability costs must be recovered from proper’’ to further the public interest in cost advantage over another service all telecommunications carriers, section the regulation of telecommunications. provider, when competing for a specific 251(b)(3) only requires that dialing Because we determine that dialing subscriber; and (2) not have a disparate parity be provided to providers of parity is crucial to the development of effect on the ability of competing service telephone exchange service and local exchange competition, we providers to earn a normal return.226 We telephone toll service. Therefore, we conclude that we should establish therefore reject the arguments of those conclude that a competitively-neutral pricing principles for the recovery of commenters that assert that only new recovery mechanism for dialing parity dialing parity costs. Accordingly, we entrants should bear the costs of should only allocate costs to this more reject the arguments of incumbent LECs implementing dialing parity, because limited class. States may use any of the and others who oppose national such an approach would not be allocators described in the Number standards for cost recovery of the competitively neutral. We also Portability Order, or any other allocator network upgrades required to achieve concluded in the Number Portability that meets the criteria we have established. States should apply the dialing parity. Order that LECs could only recover the principles we adopt today, and the other 93. Many of the network upgrades incremental costs of implementing guidelines for recovering costs of necessary to achieve dialing parity, such number portability. Because we currently available number portability as switch software upgrades, are similar determine that number portability and measures, in establishing more specific to those required for number portability. dialing parity share significant technical cost recovery requirements for dialing Moreover, with both dialing parity and similarities and overcome similar parity. number portability, customer barriers to competition, we conclude inconvenience represents the barrier to that we should impose the same cost G. Unreasonable Dialing Delays effective competition Congress intends standard for dialing parity costs that we 96. For a discussion of the section to eliminate, whether that have adopted for number portability 251(b)(3) prohibition on unreasonable inconvenience results from the dialing costs. We therefore agree with AT&T dialing delays, as that section applies to of extra digits in the case of dialing that LECs may not recover from other the provision of local and toll dialing parity, or notification of family, friends carriers under a dialing parity cost parity, see section III(E) below. and business contacts when a customer recovery mechanism any network is forced to change his or her number. upgrade costs not related to the III. Nondiscriminatory Access For these reasons, we determine that our provision of dialing parity. Provisions recent Number Portability Order 95. In our Number Portability Order, A. Definition of the Term provides guidance regarding which we concluded that the costs of long-term ‘‘Nondiscriminatory Access’’ costs incumbent LECs should be able to number portability that could be recover in implementing dialing parity, recovered through a competitively- 1. Background as well as how such costs should be neutral mechanism included 97. Section 251(b)(3) requires all LECs recovered. The rules adopted in the installation of number portability- to permit ‘‘nondiscriminatory access’’ to Number Portability Order apply only to specific switch software, currently-available number portability implementation of SS7 and IN or AIN 227 Id. at para. 122. mechanisms. We sought further capability, and the construction of 228 Id. at paras. 134–36. comment on cost recovery for long-term 229 We recognize that, unlike the case for number number portability, because long-term portability costs, states would not be able to 225 Section 251(e)(2) of the 1996 Act states that establish a cost allocator based on numbers of lines ‘‘the cost of establishing * * * number portability because such an allocator could not apportion costs 222 Western Alliance reply at 2 n.6. shall be born by all telecommunications carriers on on a competitively neutral basis where dialing 223 NECA reply at 2. a competitively neutral basis, as determined by the parity is provided to a CMRS provider. We expect 224 Telephone Number Portability, CC Docket No. Commission.’’ This statutory provision does not that states will establish a competitively neutral 95–116, FCC 96–286 (July 2, 1996) (Number apply to the dialing parity requirement. allocator that can be used to apportion costs among Portability Order) 61 FR 38605 (July 25, 1996). 226 Number Portability Order at paras. 121–140. all providers. Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations 47303 telephone numbers, operator services, 251(c)(2)(C) for incumbent LECs, ‘‘the providers to have access to those directory assistance, and directory only logical interpretation is that LECs services that is at least equal in quality listings to competing providers of are required to provide access * ** to the access that the LEC provides to telephone exchange service, and to that is nondiscriminatory among itself. We conclude that competing providers of telephone toll carriers.’’ 238 The Ohio Consumer’s ‘‘nondiscriminatory access,’’ as used in service.230 In the NPRM, we tentatively Counsel responds that ‘‘Ameritech is section 251(b)(3), encompasses both: (1) concluded that ‘‘nondiscriminatory claiming that giving all other carriers an Nondiscrimination between and among access’’ requires each LEC to permit the equal level of degraded access, i.e., carriers in rates, terms and conditions of same degree of access that the LEC itself inferior to that provided to itself, is access; and (2) the ability of competing receives for the services specified in ’non-discriminatory.’ Surely Congress providers to obtain access that is at least section 251(b)(3).231 The Commission contemplated nothing of the sort, as is equal in quality to that of the providing also asked for specific comment on recognized even by other incumbent LEC.245 LECs owe the duty to permit whether the nondiscriminatory access LECs.’’ 239 nondiscriminatory access to competing provisions of section 251(b)(3) also 100. As for resale, a number of providers of telephone exchange service impose a duty on LECs to resell operator commenters agree that LECs should and to providers of telephone toll and directory assistance services to make operator and directory assistance service, as the plain language of the competing providers.232 services available for resale to statute requires. Such competing competing providers under section providers may include, for example, 2. Comments 251(b)(3), in order to further other LECs, small business entities 98. A number of commenters concur nondiscriminatory access to such entering the market as resellers, or that, as proposed in the NPRM, services.240 On the other hand, several CMRS providers. ‘‘nondiscriminatory access’’ should commenters contend that this provision 102. Section 251(b)(3) requires that require each LEC to permit the same does not imply any resale each LEC, to the extent that it provides access to these services that the LEC requirements.241 AT&T argues that telephone numbers, operator services, itself receives.233 Bell Atlantic argues, resale is not required under section directory assistance, and/or directory however, that access need not be strictly 251(b)(3), because ‘‘to the extent that a listings for its customers, must permit equal, but must ‘‘simply be of a type local exchange carrier provides competing providers nondiscriminatory that will permit the other carrier to transmission with, or as part of, its access to these services.246 Any standard provide comparable services with no operator services, the service must be that would allow a LEC to permit access difference in quality perceptible to made available for resale under sections that is inferior to the quality of access callers.’’ 234 Bell Atlantic cites the 251(b)(1) and 251(c)(4) of the Act.’’ 242 enjoyed by that LEC itself is not Modification of Final Judgment (MFJ) Bell Atlantic takes a similar approach, consistent with Congress’ goal to for the proposition that ‘‘equal access’’ arguing that, to the extent that a LEC establish a pro-competitive policy does not require ‘‘strict technical provides operator and directory framework. equality of services and facilities,’’ but assistance services that are 103. We are not persuaded by Bell rather it requires that consumers should ‘‘telecommunication services,’’ the Atlantic’s statement that the standard perceive no qualitative differences.235 service must be made available for for nondiscriminatory access should Sprint objects to Bell Atlantic’s use of resale by LECs under section 251(b)(1), focus only upon ‘‘customer perceptions’’ ‘‘customer perception’’ as the and, if the services are of service quality. Such a standard nondiscriminatory access standard, telecommunication services offered to overlooks the potential for a providing arguing that this standard would allow retail customers, incumbent LECs must LEC to subject its competitors to the incumbent LEC to ‘‘discriminate offer them for resale at wholesale prices discriminatory treatment in ways that against its competitors in ways not under section 251(c)(4).243 are not visible to the customer, such as visible to the end user.’’ 236 the imposition of disparate conditions 99. Ameritech requests a clarification 3. Discussion between similarly-situated carriers on that a LEC’s duty under section 101. We conclude that the term the pricing and ordering of services 251(b)(3) is owed only to ‘‘providers of ‘‘nondiscriminatory access’’ means that covered by section 251(b)(3). While telephone exchange and telephone toll a LEC that provides telephone numbers, invisible to the customer, such service.’’ 237 Ameritech also argues that operator services, directory assistance, conditions can severely diminish a because Congress did not expressly and/or directory listings (‘‘providing competitor’s ability to provide exchange impose a strict equality standard in LEC’’) 244 must permit competing and/or toll service on the same terms as section 251(b)(3), as it did in section the LEC permitting the access. 238 Id. at 12–13. Section 251(c)(2)(C) imposes a 104. The MTS and WATS Order (III) 230 47 U.S.C. 251(b)(3). duty on incumbent LECs to provide interconnection does not preclude us from requiring 231 See NPRM at para. 214. that is ‘‘at least equal in quality to that provided by LECs to permit access that is at least 232 See NPRM at paras. 216, 217. the local exchange carrier to itself or to any 233 subsidiary, affiliate, or any other party to which the equal in quality to the access the LEC See, e.g., AT&T reply at iii–iv; ACSI comments 247 at 9; California Commission comments at 5; Excel carrier provides interconnection.’’ 47 U.S.C. itself receives. In the MTS and WATS comments at 8; Florida Commission comments at 5; 251(c)(2)(C). Order (III), the Commission simply held MCI comments at 2; and Telecommunications 239 Ohio Consumers’ Counsel reply at 3. that neither ‘‘absolute technical Resellers Association comments at 5. 240 See, e.g., ALTS comments at n.4; MCI reply at equality’’ nor an ‘‘overly quantitative 234 3; MFS reply at 10; and Telecommunications See Bell Atlantic comments at n.11. and microscopic’’ definition of equal 235 Id. at 6, citing United States v. Western Electric Resellers Association comments at ii. Co., 569 F. Supp. 1057, 1063 (D.D.C. 1983). Bell 241 See, e.g., GTE comments at 16; Ameritech Atlantic also states that the Commission followed comments at n.16; NYNEX comments at 6–7. or a provider of telephone toll service that seeks this approach in a 1985 ‘‘equal access’’ order. Id. 242 AT&T comments at n.13. nondiscriminatory access from a providing LEC. at 11, citing In the Matter of MTS and WATS Market 243 Bell Atlantic comments at 8. 245 See also corresponding definition of Structure (Phase III), Report and Order, CC Docket 244 We use the term ‘‘providing LEC’’ throughout ‘‘nondiscriminatory’’ in the First Report and Order No. 78–72, 100 F.C.C. 2d. 860, 877 (1985) (MTS and this section to refer to the LEC that is permitting at section V for the purposes of section 251(c)(2). WATS Order (III)). nondiscriminatory access to its services pursuant to 246 See also First Report and Order at section V. 236 Sprint reply at 9–10. section 251(b)(3). The term ‘‘competing provider’’ 247 MTS and WATS Order (III), 100 F.C.C. 2d at 237 Ameritech comments at 11. refers to a provider of telephone exchange service 860. See also supra n. 234. 47304 Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations access was desirable.248 We find that the information databases.252 We recognize numbers.256 Many commenters state that nondiscrimination standard established that without access to such information no additional Commission actions, in this Order is consistent with those features, competing providers cannot beyond those already required by previous decisions. We do not set forth make full use of such services. Thus, to section 251(e), are necessary.257 We in this Order an overly technical ensure that competing providers can conclude that issues regarding access to definition of nondiscriminatory access. obtain nondiscriminatory access to telephone numbers will be addressed by 105. We conclude that, to the extent operator services and directory our implementation of section 251(e) all or part of any operator or directory assistance, we require LECs to make herein.258 such services available to competing assistance services, and features that are C. Nondiscriminatory Access to providers in their entirety.253 adjunct to such services, are not Operator Services ‘‘telecommunications services’’ within B. Nondiscriminatory Access to 249 1. Definition of ‘‘Operator Services’’ the meaning of section 3(44) of the Telephone Numbers Communications Act of 1934, LECs that a. Background and Comments provide such services must nonetheless 1. Definition 108. The 1996 Act does not define the make the services and features available 106. Currently, the largest LEC in each under section 251(b)(3). We recognize term ‘‘operator services.’’ In the NPRM, area code serves as the Central Office the Commission proposed to use the that resale of operator services and (CO) code administrator for that area. In directory assistance is a primary vehicle definition of ‘‘operator services’’ in the the NPRM, this Commission proposed Telephone Operator Consumer Services through which competing providers, that the term ‘‘nondiscriminatory access Improvement Act (TOCSIA) of 1990.259 especially new entrants and small to telephone numbers’’ means that all Section 226(a)(7), which was added to business entities, can make operator LECs providing telephone numbers the 1934 Act by TOCSIA, defines services or directory assistance available must permit access to telephone operator services as: ‘‘any automatic or to their customers and that providing numbers to competing providers in the live assistance to a consumer to arrange LECs are a primary source from which same manner that the LECs themselves for billing or completion, or both, of a competing providers can obtain these 254 receive such access. The few telephone call through a method other services.250 Operator and directory commenters who addressed this issue than: (1) Automatic completion with assistance services, or the portions of support the extension of our general billing to the telephone from which the such services, that are definition of nondiscriminatory access call originated; or (2) completion ‘‘telecommunications services’’ are to cover access to telephone numbers.255 through an access code by the already subject to resale requirements We conclude, consistent with the consumer, with billing of an account under: (1) Section 251(c)(4)(A), which general definition of nondiscriminatory previously established with the requires incumbent LECs ‘‘to offer for access in para. 101, supra, that the term telecommunications service provider by resale at wholesale rates any ‘‘nondiscriminatory access to telephone the consumer.’’ 260 telecommunications service that the numbers’’ requires a LEC providing 109. Bell Atlantic, BellSouth and MCI carrier provides at retail to subscribers telephone numbers to permit competing agree with the proposed definition of who are not telecommunications providers access to these numbers that ‘‘operator services.’’ 261 AT&T, however, carriers’’; and (2) section 251(b)(1), is identical to the access that the LEC expresses concern that this definition which imposes a duty on all LECs not provides to itself. In addition, as should not be used by incumbent LECs to prohibit the resale of their discussed in paras. 261–345, infra, the to claim that they are then not obligated telecommunications services, nor to delegation of the administration of to make operator services, including impose unreasonable or discriminatory numbering resources to a neutral transmission of information, available conditions on the resale of such administrator will further the statutory for resale at wholesale rates, pursuant to services.251 Operator and directory objective that all competing providers section 251(c)(4).262 AT&T thus suggests assistance services, however, generally receive nondiscriminatory access to that the Commission adopt the use various adjunct information telephone numbers. definition as proposed in the NPRM, but features, e.g., rating tables or customer 2. Commission Action To Enforce explicitly state that the definition is applicable only in the context of section 248 Access to Telephone Numbers MTS and WATS Order (III), 100 F.C.C. 2d at 251(b)(3).263 AT&T asserts that the 877. 107. In the NPRM, we sought traditional functions of ‘‘emergency 249 47 U.S.C. 153(44). comment on what, if any, Commission 250 See also infra para. 118, for discussion of the interrupt,’’ ‘‘busy line verification,’’ and unbundling of operator services and directory action is necessary or desirable to ‘‘operator-assisted directory assistance’’ assistance under section 251(c)(3). implement the requirement under 251 47 U.S.C. 251(b)(1), (c)(4)(A). Operator services section 251(b)(3) that LECs permit 256 NPRM at para. 215. and directory assistance are also unbundled nondiscriminatory access to telephone 257 See, e.g., Bell Atlantic comments at 6; CBT network elements subject to section 251(c)(3). See comments at 6; and U S WEST comments at 8. See First Report and Order at section V. The 1934 Act, 252 ‘‘Rating tables’’ are databases that cross- generally infra paras. 261–308, for a discussion of as amended, defines ‘‘telecommunications service’’ previous Commission actions in the area of number as ‘‘the offering of telecommunications for a fee reference area codes, numbers called, and time of day to determine the price to be charged for administration. directly to the public, or to such classes of users as 258 See generally infra paras. 261–345. to be effectively available directly to the public, telephone calls. Directory assistance may use 259 47 U.S.C. 226(a)(7); see NPRM at para. 294. regardless of the facilities used.’’ 47 U.S.C. 153(46). databases that contain customer names, numbers 260 ‘‘Telecommunications’’ is defined as ‘‘the and addresses, and operator services may use NPRM at para. 216. transmission, between or among points specified by databases that contain customer billing information 261 See, e.g., Bell Atlantic comments at 8; the user, of information of the user’s choosing, (e.g., whether a customer will accept collect calls BellSouth comments at n.24; and MCI comments at without change in the form or content of the or third party billing). 8. information as sent and received.’’ 47 U.S.C. 253 See infra paras. 108–151, for further 262 See AT&T comments at 8. 47 U.S.C. 251(c)(4), 153(43). ‘‘Information service’’ is defined as ‘‘the discussion of operator services and directory inter alia, requires incumbent LECs to offer for offering of a capability for generating, acquiring, assistance. resale, at wholesale rates, any telecommunications storing, transforming, processing, retrieving, 254 See NPRM at para. 215. service that the carrier provides at retail to utilizing, or making available information, via 255 See, e.g., Telecommunications Resellers subscribers who are not telecommunications telecommunications * * *.’’ 47 U.S.C. 153(20). See Association reply at 5. See supra para. 101, for the carriers. also First Report and Order at section V. general definition of ‘‘nondiscriminatory access.’’ 263 Id. Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations 47305 are within the meaning of ‘‘operator access.266 We further conclude that we unbundled switch ports.272 GCI states services’’ in this context.264 should state explicitly that busy line that, in Alaska, LECs currently do not verification, emergency interrupt, and provide ‘‘0’’ or ‘‘0 plus’’ the telephone b. Discussion operator-assisted directory assistance number; rather, interexchange carriers 110. TOCSIA defines operator are forms of ‘‘operator services,’’ provide these services. GCI requests that services to be ‘‘any automatic or live because they assist customers in arrangements such as those in Alaska assistance to a consumer to arrange for arranging for the billing or completion not be precluded.273 Bell Atlantic, billing or completion, or both, of a (or both) of a telephone call. Thus, if a USTA, and PacTel request that we state telephone call through a method other LEC provides these functions, the LEC that, while LECs must offer their than: (1) Automatic completion with must offer them on a nondiscriminatory operator services to their competitors, billing to the telephone from which the basis to all providers of telephone there is no duty for a LEC to ensure that call originated; or (2) completion exchange and/or toll service. To avoid the competitors’ customers have access through an access code by the confusion with the TOCSIA definition to these services.274 Finally, U S WEST consumer, with billing of an account at section 226, we state here that this states that ‘‘regulatory agencies should previously established with the definition only applies for purposes of not mandate all carriers provide certain telecommunications service provider by section 251. Finally, unlike the adjunct non-essential services, the consumer.’’ 265 Based on support in definition of operator services in including ‘‘0’’ and ‘‘0+’’ services. Nor the record and the desirability of having TOCSIA, we point out that our should regulatory agencies dictate the a definition consistent with that in the definition of ‘‘operator services’’ under manner in which adjunct, non-essential preexisting statute, we conclude that we section 251(b)(3) is applicable to both services are accessed.’’ 275 should adopt the definition of operator interstate and intrastate operator c. Discussion services as used in TOCSIA for purposes services.267 of section 251(b)(3), with modifications. 114. We adopt the interpretation of For purposes of section 251(b)(3), we do 2. Definition of ‘‘Nondiscriminatory ‘‘nondiscriminatory access to operator not exempt (1) and (2), above, from the Access to Operator Services’’ services’’ that we proposed in the definition of operator services. a. Background NPRM, with the following clarifications. Accordingly, the term operator services, 112. In the NPRM, we proposed that First, LECs are required to permit for purposes of section 251(b)(3), means the phrase ‘‘nondiscriminatory access to nondiscriminatory access to operator ‘‘any automatic or live assistance to a operator services’’ should be interpreted services by competing providers, and consumer to arrange for billing or to mean that a telephone service have no duty, apart from factors within completion, or both, of a telephone customer, regardless of the identity of their own control, to ensure that a call.’’ Although commenters did not his or her local telephone service competing provider’s customers can in focus on this issue, nor suggest that the provider, must be able to connect to a fact access the services. We make this exemptions be deleted from the TOCSIA local operator by dialing ‘‘0,’’ or ‘‘0 clarification because the statute does not definition of ‘‘operator services,’’ we plus’’ the desired telephone number.268 refer to the customers of competing conclude that we should adopt a providers, and the record does not modified definition of operator services b. Comments support such an interpretation of the for the purpose of implementing section 113. Several commenters agree with statutory language. Second, there is no 251(b)(3). When enacted, the TOCSIA the Commission’s interpretation of this requirement that a LEC must provide definition was intended to address phrase as proposed in the NPRM.269 call handling methods or different credit services from an aggregator location, PacTel, however, requests that we card or other alternate billing rather than addressing the types of clarify that the ‘‘0’’ or ‘‘0 plus’’ arrangements different from those it operator services in general that would requirement does not mean ‘‘that a provides to itself or its affiliates. And be essential to competition in customer must be able to access every finally, we find that the duty to permit telecommunications markets. Operator LEC’s operator services or directory nondiscriminatory access to operator services are becoming increasingly assistance using the same dialing services applies only to LECs that automated, and thus excluding access to scheme, but rather only the services of provide operator services to their own automatic call completion from the the carrier selected to provide local customers. obligations imposed by section 251(b)(3) service.’’ 270 AT&T requests that operator 115. Once a LEC permits a competing could deny competitors access to a service connection methods continue to provider to have access to operator service that is essential to competition include dialing ‘‘00’’ in order to access services, this access may become in the local exchange market. We the pre-selected long distance carrier degraded in the competing provider’s conclude that, for the same reason, operator.271 CBT asks that we find that network by factors outside the control of 276 ‘‘completion by an access code by the the nondiscriminatory access the providing LEC. On the other consumer,’’ a common means of requirements only apply when a hand, when a LEC unbundles network completing calls made from payphones, competing local service provider is loop elements, the providing LEC may should also be included in the using either a LEC’s local exchange also retain maintenance and control 277 definition of operator services for services on a resale basis or when the responsibilities over such elements. section 251(b)(3). competing provider is using a LEC’s 111. Adopting a national definition of 272 See CBT comments at 6, 7. 273 See GCI reply at 3 n.4. ‘‘operator services’’ based on the 266 See also infra para. 146. 274 See Bell Atlantic comments at 7; USTA 267 TOCSIA definition, as modified above, See First Report and Order at section V for comments at ii; PacTel comments at 15. will allow for consistency and ease of discussion of application of section 251 to interstate 275 U S WEST comments at 8–9. and intrastate matters. compliance with the statute, specifically 276 For example, the customers of a competing 268 with respect to services to which all See NPRM at para. 216. provider may experience dialing delays or call 269 See, e.g., AT&T comments at 9; MCI comments blockage due to inadequate facilities or poor call LECs must permit nondiscriminatory at 8; and Telecommunications Resellers Association management in the competing provider’s network. comments at 6. 277 We note that incumbent LECs have an 264 Id. at n. 11. 270 See PacTel comments at 16. obligation to offer operator services and directory 265 47 U.S.C. 226(a)(7). 271 See AT&T comments at 9. Continued 47306 Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations

We require that, if a dispute arises limit a LEC’s operator services obligated to offer such offering for between a LEC providing access to obligations to only those competitors resale, some assert that they are operator services and a competing reselling a LEC’s services, or using a included in various unbundled provider regarding the delivery of such LEC’s unbundled switch ports, is elements or that they should not be access, the initial burden is upon the inconsistent with the statute. The unbundled * * * incumbent LECs providing LEC to demonstrate with nondiscriminatory access provisions of should not be allowed to unilaterally specificity: (1) That it has provided section 251(b)(3) are not confined to decide whether, or to what extent to nondiscriminatory access, and (2) that situations in which a competing offer access to operator services, the degradation of access is not caused provider resells a LEC’s services, or uses directory assistance and directory by factors within the control of the unbundled network elements of a LEC. listings.’’ 285 providing LEC. Our use of the term We do not agree with U S WEST’s 120. The Telecommunications ‘‘factors’’ is not limited to network statement that it would be inappropriate Resellers Association states that facilities, but also includes human and to mandate that all LECs who offer ‘‘[p]rompt and strong Commission non-facilities elements used in the operator services must accommodate response to complaints alleging failures provision of operator services. A ‘‘0’’ and ‘‘0 plus’’ dialing. This service by LECs to provide nondiscriminatory providing LEC must also demonstrate is not, as U S WEST states, an ‘‘adjunct, access to operator services is required to with specificity that any degradation in non-essential’’ service. ensure compliance with this access by competing providers is not 118. Finally, we note that in the First requirement.’’ 286 Finally, the Florida caused by, inter alia, the providing Report and Order we found that Commission asserts that ‘‘[s]tates should LEC’s inadequate staffing, poor operator services as well as directory be allowed to ensure compliance with maintenance or cumbersome ordering assistance are network elements that an the Act as it relates to these services as procedures. incumbent LEC must make available to defined in the NPRM.’’ 287 116. We take into account PacTel’s requesting telecommunications carriers. comments in concluding that the In the absence of an agreement between b. Discussion nondiscriminatory access requirement the parties, unbundled element rates for 121. We conclude that detailed of section 251(b)(3) does not require that operator services and directory Commission rules are not required to a customer be able to access every LEC’s assistance are governed by section implement the requirement under operator services, but only the operator 252(d)(1) and our rules thereunder.279 section 251(b)(3) that LECs must permit services offered by that customer’s The obligation of incumbent LECs to competing providers nondiscriminatory chosen local service provider.278 provide operator services and directory access to operator services. We Furthermore, section 251(b)(3) neither assistance as unbundled elements is in recognize the need for flexibility in specifically addresses nor precludes addition to the duties of all LECs order for maximum access to operator arrangements wherein operator services (including incumbent LECs) under services when networks interconnect, as are provided by interexchange carriers, section 251(b)(3) and the rules we adopt there may be a variety of technical as described by GCI. Section 251(b)(3) herein.280 interconnection methods through which such nondiscriminatory access to requires all LECs, but not interexchange 3. Commission Action To Ensure operator services can be achieved. We carriers or other service providers, to Nondiscriminatory Access to Operator view the definition of permit nondiscriminatory access to Services operator services. Thus, to the extent ‘‘nondiscriminatory access to operator that an OSP is not within the statutory a. Background and Comments services’’ set forth in paras. 114–118, definition of ‘‘local exchange carrier,’’ it In the NPRM, the Commission sought supra, as the overarching standard to is not required by section 251(b)(3) to comment on what, if any, Commission which LECs must adhere under section permit nondiscriminatory access to its action is necessary or desirable to 251(b)(3). As noted, in part III (C)(2), operator services. ensure nondiscriminatory access to once a LEC permits nondiscriminatory 117. The ‘‘00’’ access method operator services under section access to operator services to its currently allows an end user to connect 251(b)(3).281 Bell Atlantic, GTE and competitors, that LEC has no further to the operator services of his or her PacTel assert that there is no need for duty to ensure that the competitor’s presubscribed long distance carrier. the Commission to adopt detailed rules customers can access those services. To Consistent with our definition of in this area.282 On the other hand, Sprint the extent that a dispute arises regarding nondiscriminatory access, we require is ‘‘concerned that leaving access to a competing provider’s access to that, if a LEC allows its customers these services to carrier negotiations operator services, however, the burden access to operator services of their will result in unreasonable delays and is on the LEC permitting the access to presubscribed long distance carriers by discriminatory terms and conditions as demonstrate with specificity that it has dialing ‘‘00,’’ it must permit competing between the incumbent LEC and provided nondiscriminatory access, and providers to have access to any features CLEC.’’ 283 MFS and WinStar support an that any disparity is not caused by and functions that are necessary to ‘‘unambiguous national policy’’ of factors within its control. enable the competing provider to allow requiring incumbent LECs to make 122. Beyond placing the initial its customers likewise to obtain access services available to new entrants.284 burden of proof on the providing LEC, to such operator services by dialing MFS justifies this position by noting we find that specific enforcement ‘‘00.’’ We find that CBT’s proposal to ‘‘some incumbent LECs say they already standards for nondiscriminatory access provide access, some say they are not to operator services are not required at assistance on an unbundled basis under section this time. Rather, disputes concerning 251(c)(3). 47 U.S.C. 251(c)(3). See First Report and 279 See First Report and Order at section V. nondiscriminatory access can be Order section V. 280 See First Report and Order at section V. addressed under our general 278 The operator services provided by a customer’s 281 local service provider, for example, could be that See NPRM at para. 216. provider’s own operator services, resold operator 282 See Bell Atlantic comments at 6; GTE reply at 285 MFS reply at 10. services of a LEC providing nondiscriminatory 18; and PacTel comments at 14. 286 Telecommunications Resellers Association access, or operator services provided by an 283 Sprint reply at 8. comments at 7. independent OSP. 284 MFS reply at 10, WinStar reply at 13. 287 See Florida Commission comments at 5. Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations 47307 enforcement authority pursuant to Titles services as those of the reseller,’’ and the providing LEC is unlawfully II and V of the Act.288 The 1996 Act also that the ‘‘continued use of the restricting access to these services by directs the Commission to establish incumbent LEC’s own brand with competing providers.298 This such procedures as are necessary for the services that are resold to CLEC presumption can be rebutted by the review and resolution of complaints customers would stifle competition and providing LEC if it demonstrates that it against the BOCs within the statutory confuse customers.’’ 292 AT&T further lacks the capability to comply with the deadlines.289 This requirement will be recommends that ‘‘equal opportunities competing provider’s request. We note addressed in a separate proceeding. for branding’’ be made available, also that the Illinois Commission asserting that if a LEC brands its own recently ordered rebranding of operator 4. ‘‘Branding’’ Requirements for operator services, it should ensure that services as those of the reseller ‘‘[t]o the Operator Services other OSPs have the capability to do the extent that it is technically feasible,’’ a. Background same; and if branding is infeasible for and we do not preempt its intrastate 123. Section 226(b)(1)(A) of the Act the OSP, the LEC should not brand its branding requirements, nor any similar service at all.293 Bell Atlantic and SBC requirements that other states may have and Part 64 of the Commission’s rules 299 require an operator services provider object to AT&T’s proposal, because one enacted. possible outcome would be that 129. Any inter-carrier branding (OSP) to identify itself audibly and branding would not be performed on arrangements under which an interstate distinctly to the consumer at the interstate calls, which would violate operator services call made from an beginning of each interstate telephone current Federal and state statutes and aggregator location would not be call, before the consumer incurs any regulations.294 branded would violate section 226 of charge for that call.290 This procedure is 127. USTA states that when there are the Act and part 64 of our rules. We commonly referred to as ‘‘call no technical limitations to branding, therefore caution interconnecting branding.’’ In a recent Report and Order, each LEC should be responsible for carriers that, in negotiating branding the Commission amended its rules to branding its own services, and where arrangements for operator services, they require ‘‘branding’’ to the parties on multiple brands are infeasible, the must insure that such arrangements are both ends of a collect call.291 branding announcement of the facilities- consistent with Federal laws and 124. In using the term ‘‘branding based carrier should be used by regulations requiring interstate OSPs to requirements’’ in this context, we do not ‘‘default.’’ 295 Bell Atlantic and CBT identify themselves. refer to the section 226 requirements contend that the issue of branding obligating OSPs to identify themselves operator services is best left to inter- D. Nondiscriminatory Access to to consumers; rather, we refer to the carrier negotiations, where technical Directory Assistance and Directory obligations beyond section 226, if any, and cost issues can be resolved between Listings of a LEC to a competing provider that the parties.296 PacTel notes that ‘‘in a 1. Definition of ‘‘Nondiscriminatory is using the LEC’s facilities to provide resale environment, we accommodate Access to Directory Assistance and its own operator services, or is reselling the CLEC by not branding our service at Directory Listings’’ the operator services of the LEC. In all. If a CLEC wants to brand its own these situations, the issue is whose operator services, it can establish a a. Background brand should be used. facilities-based arrangement and set up 130. In the NPRM, the Commission 125. The NPRM did not ask whether its own operator services.’’ 297 interpreted the phrase branding of operator services should be ‘‘nondiscriminatory access to directory required under section 251(b)(3). This c. Discussion assistance and directory listings’’ to issue was raised by several parties, 128. Since these comments are a mean that the customers of all however, in the context of logical outgrowth of the language in our telecommunications service providers nondiscriminatory access to such NPRM, we address them herein. We should be able to access each LEC’s services. Specifically, parties raised the recognize that branding plays a directory assistance service and obtain a question of whether competing significant role in markets where directory listing on a nondiscriminatory providers have the right to have resold competing providers are reselling the basis, notwithstanding: (1) The identity operator services of a LEC ‘‘branded’’ in operator services of the providing LEC. of a requesting customer’s local the competing provider’s name, in order Continued use of the providing LEC’s telephone service provider; or (2) the to ensure nondiscriminatory access and brand with a competing provider’s identity of the telephone service consumer perceptions of seamless customers clearly advantages the provider for a customer whose directory service. providing LEC. Consistent with the listing is requested.300 requirements that we imposed on b. Comments incumbent LECs in the First Report and b. Comments 126. AT&T states that the Commission Order, we conclude that a providing 131. A number of commenters agree should reject claims that LECs may LEC’s failure to comply with the with our definition of refuse to comply with ‘‘reasonable reasonable, technically feasible request ‘‘nondiscriminatory access to directory requests to brand resold operator of a competing provider for the assistance and directory listings’’ as providing LEC to rebrand operator 288 See, e.g., 47 U.S.C. 208 (common carrier services in the competing provider’s 298 See First Report and Order at section VIII . complaint authority); see generally 47 U.S.C. 501– name, or to remove the providing LEC’s 299 See AT&T Communications of Illinois, and 510. See also, First Report and Order at section II brand name, creates a presumption that LDDS Communications, Inc. d/b/a LDDS (authority to take enforcement action). Metromedia Communications, Petition for a Total 289 See 47 U.S.C. 271(d)(6)(B). Local Exchange Wholesale Service Tariff from 292 290 See 47 U.S.C. 226(b)(1)(A); see also 47 CFR AT&T reply at n.20. Illinois Bell Telephone Company d/b/a Ameritech 64.703(a)(1). 293 See AT&T comments at n.12. Illinois and Central Telephone Company Pursuant 291 Amendment of Policies and Rules Concerning 294 See Bell Atlantic reply at 5–6; SBC reply at 7. to Section 13.505.5 of the Illinois Public Utilities Operator Service Providers and Call Aggregators, 295 See USTA reply at 6. Act, Illinois Commission, Dockets 95–0458 and 95– CC Docket No. 94–158, Report and Order and 296 See Bell Atlantic reply at 5; CBT reply at 4– 0531 (consol.), Hearing Examiner’s Proposed Order, Further Notice of Proposed Rulemaking, FCC 96–75 5. May 16, 1996, pp. 52–54. (1996) (OSP Order) 61 FR 15020 (April 4, 1996). 297 PacTel reply at 15. 300 See NPRM at para. 217. 47308 Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations proposed in the NPRM.301 Many ‘‘all telecommunications carriers.’’ 309 Order, we require that in permitting commenters combine their discussions This duty does not apply if a LEC access to directory assistance, LECs bear of what constitutes nondiscriminatory chooses not to offer directory assistance the burden of ensuring that access is access for both operator services and to its own customers.310 permitted only to the same information directory assistance.302 As with operator 134. We agree that once a LEC permits that is available to their own directory services, some commenters assert that a a competitor nondiscriminatory access assistance customers, and that the LEC is not obligated to ensure that a to directory assistance and directory inadvertent release of unlisted names or competing provider’s customers have listings, the LEC permitting the access is numbers does not occur.314 not responsible for ensuring that the access to directory assistance and 136. We find, as we did in paragraph 303 competitor’s customers are able to directory listings. Bell Atlantic, for 117, supra, that CBT’s proposal to limit access these services. As with operator example, argues that ‘‘[t]he exchange the application of section 251(b)(3) to services, when a dispute arises as to the carrier, naturally, can control only its competing providers of exchange and/or adequacy of the access received by the part of the service, not what the other toll service who are providing services 304 competitor’s customers, the burden is carrier provides.’’ CBT asks that we on a resale basis, or using an incumbent find that the nondiscriminatory access on the LEC permitting access to the LEC’s unbundled switch ports is requirements only apply when a service to demonstrate with specificity: unacceptable. We also take into account competing local service provider is (1) That it is permitting PacTel’s comments in concluding that using a LEC’s local exchange services on nondiscriminatory access to directory section 251(b)(3) does not require that a a resale basis or when the competing assistance and directory listings; and (2) customer be able to access any LEC’s provider is using a LEC’s unbundled that the disparity in access is not caused directory assistance services, but only switch ports.305 by factors within its control. As in those services provided through its 132. Finally, certain interexchange paragraph 114, supra, we conclude that chosen service provider. When a carriers ask that we require that the term ‘‘factors’’ is not confined to customer contacts his or her provider’s competing providers have access to the physical facilities, but also includes directory assistance services, the White Pages, Yellow Pages, and human and non-facilities elements such ‘‘customer guide’’ sections of as staffing, maintenance and ordering. customer’s provider can obtain access to directories, in order to satisfy the 135. The requirements for the directory listings of other carriers; requirement of nondiscriminatory nondiscriminatory access to directory thus, the customer should be able to access to directory assistance and assistance and directory listings are obtain any directory listing (other than directory listings.306 Sprint contends intertwined. Requiring listings that are protected or not that ‘‘CLECs should be allowed to insert ‘‘nondiscriminatory access to directory available, such as unlisted numbers). informational pages containing their listings’’ means that, if a competing We conclude, however, that a LEC that business and repair numbers in the provider offers directory assistance, any does not provide directory assistance to incumbent LEC’s white and yellow customer of that competing provider its own customers does not have to pages directories at cost.’’ 307 SBC should be able to access any listed provide nondiscriminatory access to strongly disagrees that section 251(b)(3) number on a nondiscriminatory basis, directory assistance to competing requires access to Yellow Pages, notwithstanding the identity of the providers. ‘‘customer guides,’’ and informational customer’s local service provider, or the 137. On the basis of the record before pages, pointing out that the identity of the telephone service us, we conclude that there is no need for ‘‘competitive checklist’’ (section 271) provider for the customer whose this Commission to state that the term provisions only require incumbent LECs directory listing is requested.311 We ‘‘directory assistance and directory to provide access to White Pages conclude that the obligation to permit listings’’ includes the White Pages, listings.308 access to directory assistance and Yellow Pages, ‘‘customer guides,’’ and directory listings does not require LECs informational pages. As a minimum c. Discussion to permit access to unlisted telephone standard, we find that the term 133. We conclude that we should numbers, or other information that a ‘‘directory listing’’ as used in section adopt the definition of LEC’s customer has specifically asked 251(b)(3) is synonymous with the nondiscriminatory access to directory the LEC not to make available.312 In definition of ‘‘subscriber list assistance services proposed in the previous orders, such as those information’’ in section 222(f)(3).315 NPRM, with the following addressing nondiscriminatory access by modifications. Consistent with our interexchange carriers to Billing Name Exchange Carrier Validation and Billing conclusion in para. 101, supra, we have and Address (BNA) information, we Information for Joint Use Calling Cards, CC Docket modified this definition to reflect that have taken action to ensure that No. 91–115, Second Report and Order, 8 FCC Rcd this duty is owed to competing customer privacy is protected.313 In this 4478 (1993) 58 FR 36143 (July 6, 1993). 314 See also Implementation of the providers of telephone exchange service Telecommunications Act of 1996: 309 and/or telephone toll service, and not to See supra para. 101. Telecommunications Carriers’ Use of Customer 310 But see infra paras. 141–145, wherein we Proprietary Network Information and Other require all LECs, regardless of whether or not they 301 See, e.g., AT&T comments at 9–10; SBC reply Customer Information, CC Docket No. 96–115, FCC provide directory assistance to their customers, to at 4; and Telecommunications Resellers Association 96–221 (1996) 61 FR 26483 (May 28, 1996). share subscriber listings, in readily accessible comments at 7. 315 The term ‘‘subscriber list information’’ at formats, as an element of nondiscriminatory access. 302 See, e.g., CBT comments at 6. See, e.g., para. section 222(f)(3) means any information: (A) 311 See infra para. 141. 113, supra. Identifying the listed names of subscribers of a 312 Cf. 47 U.S.C. 222(f)(3) (definition of 303 See Ameritech comments at 10, USTA carrier and such subscribers’ telephone numbers, ‘‘subscriber list information’’), which is limited to comments at 6–7. See also supra para. 113. addresses, or primary advertising classifications (as the listed names of subscribers of a carrier. such classifications are assigned at the time of the 304 Bell Atlantic comments at 7. 313 See, e.g., Policies and Rules Concerning Local establishment of such service), or any combination 305 See CBT comments at 6, 7. Exchange Carrier Validation and Billing of such listed names, numbers, addresses or 306 See, e.g., AT&T comments at n.14. Information for Joint Use Calling Cards, CC Docket classifications; and (B) that the carrier or an affiliate 307 Sprint comments at 9–10. No. 91–115, Third Order on Reconsideration, 11 has published, caused to be published, or accepted 308 See SBC reply at 6–7 (citing 47 U.S.C. FCC Rcd 6835 (1996) 61 FR 08879 (March 6, 1996); for publication in any directory format. 47 U.S.C. § 271(c)(2)(B)(vii)). see also Policies and Rules Concerning Local 222(f)(3) (A), (B). Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations 47309

2. Commission Action To Implement listings.324 The Florida Commission in a competitive local exchange market. Nondiscriminatory Access to Directory asserts that ‘‘[s]tates should be allowed We note also that incumbent LECs must Assistance and Directory Listings to ensure compliance with the Act as it provide more robust access to databases relates to these services as defined in a. Background and Comments as unbundled network elements under the NPRM.’’ 325 section 251(c)(3).329 138. In the NPRM, the Commission b. Discussion 144. We do not agree with PacTel’s sought comment on what action, if any, 141. We conclude that section contention that certain state laws is necessary or desirable to implement 251(b)(3) requires LECs to share restricting the types of information that the nondiscriminatory access to subscriber listing information with their LECs can disseminate preclude us from directory assistance and directory competitors, in ‘‘readily accessible’’ tape requiring access to directory assistance listings requirements of section databases. It is not possible to achieve 316 or electronic formats, and that such data 251(b)(3). Several parties assert that be provided in a timely fashion upon seamless and nondiscriminatory access there is no need for the Commission to request. The purpose of requiring to directory assistance without requiring adopt detailed rules addressing this ‘‘readily accessible’’ formats is to ensure access to the underlying databases. 317 issue. In its comments, NYNEX that no LEC, either inadvertently or Consistent with our definition of described its current arrangements for intentionally, provides subscriber nondiscriminatory access, the providing making its directory assistance and listings in formats that would require LEC must offer its competitors access of directory listing services available to the receiving carrier to expend at least equal quality to that it receives facilities-based and non-facilities-based significant resources to enter the itself. Competitors who access such LEC carriers.318 information into its systems. We agree databases will be held to the same 139.Sprint and MFS urge the with MCI that ‘‘by requiring the standards as the database owner, in Commission to establish national rules exchange of directory listings, the terms of the types of information that requiring nondiscriminatory access to Commission will foster competition in they can legally release to directory directory assistance and directory the directory services market and foster assistance callers. The LEC that owns listings for all local service providers.319 new and enhanced services in the voice the database can take the necessary Furthermore, MCI recommends that the and electronic directory services 326 safeguards to protect the integrity of its Commission establish requirements that market.’’ Consistent with the database and any proprietary ensure that ‘‘each provider of local definition of ‘‘subscriber list information, or carriers can agree that information’’ in section 222(f)(3), we do service has access to directory listings of such databases will be administered by not require access to unlisted names or other providers, and that these directory a third party. We note also that our numbers.327 Rather, we require the LEC listings are made available in readily holding does not preclude states from usable format,’’ and that these listings providing the listing to share listings in a format that is consistent with what continuing to limit how LECs can use be provided ‘‘via tape or other electronic accessed directory information, e.g., means, as is frequently the practice that LEC provides in its own directory. 142. We conclude that the fact that prohibiting the sale of customer today between incumbent LECs whose information to telemarketers.330 Rather, service areas join.’’ 320 PacTel and GTE many LECs offer directory assistance and listings for purchase or resale to we conclude only that section 251(b)(3) urge the Commission to refrain from competitors, as NYNEX describes, does precludes states from discriminating mandating access to underlying not obviate the need for any among LECs by imposing different directory assistance databases.321 GTE requirements in this area. Under the access restrictions on competing cites ‘‘serious technical and security general definition of providers, thereby allowing certain concerns,’’ while PacTel argues that (1) ‘‘nondiscriminatory access,’’ competing LECs to enjoy greater access to the plain language of section 251(b)(3) providers must be able to obtain at least information than others.331 Accordingly, does not require access to the the same quality of access to these states may not impose rules that would underlying databases, and (2) LECs are services that a LEC itself enjoys. Merely prohibited from disseminating certain offering directory assistance and 329 See supra para. 118, for a discussion of the directory listing information without directory listing services for resale or relationship between section 251(b)(3) and the customers’ permission in California and requirements adopted in the First Report and Order 322 purchase would not, in and of itself, Nevada. PacTel maintains that the satisfy this requirement, if the LEC, for mandating unbundled access to operator and intent of section 251(b)(3) is not to directory assistance services. example, only permits a ‘‘degraded’’ 330 permit ‘‘unfettered access to all But see section 222(d)(3), which permits level of access to directory assistance customer information to be used for telemarketing 323 information on record.’’ and directory listings.328 to the customer ‘‘ * * * for the duration of the call, 140. The Telecommunications 143. We further find that a highly if such call was initiated by the customer and the customer approves of the use of such information Resellers Association states that effective way to accomplish to provide such service.’’ 47 U.S.C. 222(d)(3). See ‘‘prompt and strong’’ Commission nondiscriminatory access to directory also our proceeding to clarify the obligations of action is required to ensure compliance assistance, apart from resale, is to allow carriers with regard to section 222(c) and 222(d). with nondiscriminatory access to competing providers to obtain read-only Implementation of the Telecommunications Act of 1996: Telecommunications Carriers’ Use of directory assistance and directory access to the directory assistance Customer Proprietary Network Information and databases of the LEC providing access. other Customer Information, CC Docket, No. 96– 316 See NPRM at para. 217. Access to such databases will promote 115, FCC 96–221 (May 17, 1996) 61 FR 26483 (May 317 See, e.g., Bell Atlantic comments at 6; GTE seamless access to directory assistance 28, 1996). reply at 18; PacTel comments at 16. 331 Cf. 47 U.S.C. 222(e), which requires telephone exchange service providers to ‘‘provide subscriber 318 See NYNEX comments at 7–8. 324 See Telecommunications Resellers Association list information gathered in its capacity as a 319 See, e.g., MFS reply at 10; Sprint reply at 8. comments at 7. provider of such service on a timely and unbundled 320 325 See MCI comments at 3, 9; see also MCI reply See Florida Commission comments at 5. basis, under nondiscriminatory and reasonable at 3. 326 MCI comments at 9. rates, terms, and conditions, to any person upon 321 See GTE reply at 19; PacTel reply at 15. 327 See 47 U.S.C. 222(f)(3) for the definition of request for the purpose of publishing directories in 322 See GTE reply at 19; PacTel reply at 15. ‘‘subscriber list information.’’ any format.’’ See 47 U.S.C. 222(f)(3) for the 323 PacTel reply at 15. 328 See supra paras. 101–105. definition of ‘‘subscriber list information.’’ 47310 Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations allow a LEC to discriminate against b. Discussion carrier or to that or any other provider). competing providers.332 148. The record shows that this issue When a non-facilities-based provider 145. We are not adopting specific is a logical outgrowth of the issues buys exchange service from the enforcement standards at this time. related to nondiscriminatory access to incumbent under section 251(c)(4), its Disputes regarding nondiscriminatory directory assistance raised in the NPRM customers get exactly what the access will be addressed under our Title and thus should be addressed in this incumbent’s receive, 411 and 555–1212 access to directory assistance.’’ 342 II and Title V enforcement authority.333 Order. As with operator services, we recognize the major role that branding b. Discussion 3. Branding of Directory Assistance can play in an environment where 151. With respect to the ability of a. Background and Comments competing providers are reselling the directory assistance services of the customers to reach directory assistance 146. To the extent that interstate providing LEC. Consistent with the services through 411 or 555–1212 directory assistance services are within requirements that we imposed on arrangements, we conclude that no the definition of ‘‘operator services’’ in incumbent LECs in the First Report and Commission action is required now. No section 226(a)(7) of the Act,334 the Order, therefore, we conclude that a commenter has proposed that we service provider is required to identify providing LEC’s failure to comply with require an alternative dialing itself to consumers at the beginning of the reasonable, technically feasible arrangement. The record before us indicates that permitting a call.335 Parties raised the issue of request of a competing provider for the nondiscriminatory access to 411 and whether the competing provider has the providing LEC to rebrand directory 555–1212 dialing arrangements is right to have resold directory assistance assistance services in the competing technically feasible, and there is no services of the LEC ‘‘branded’’ in its provider’s name, or to remove the providing LEC’s brand name, creates a evidence in the record that these dialing name, as an element of arrangements will cease. nondiscriminatory access under section presumption that the providing LEC is unlawfully restricting access to these 251(b)(3). Thus this issue is similar to E. Unreasonable Dialing Delay services by competing providers.339 This that of branding of operator services in presumption can be rebutted by the 1. Definition and Appropriate paras. 123–129, supra. The NPRM did providing LEC demonstrating that it Measurement Methods not ask whether the branding of lacks the capability to comply with the a. Background and Comments directory assistance should be required request of the competing provider.340 under 251(b)(3) but commenters raised Finally, as with operator services, we do 152. Section 251(b)(3) prohibits 343 this issue. not preempt any branding requirements unreasonable dialing delays. The 147. AT&T suggests adding a that state commissions may have NPRM sought comment on what requirement that if an incumbent LEC enacted for directory assistance services. constitutes an unreasonable dialing brands its own directory services, the delay for purposes of section 251(b)(3) 4. Alternative Dialing Arrangements for incumbent should ensure that other and on appropriate methods for Directory Assistance 344 directory assistance service providers measuring and recording such delay. can also brand their services.336 CBT a. Background and Comments 153. U S WEST contends that the phrase ‘‘unreasonable dialing delay,’’ as argues that branding is impractical and 149. In the NPRM, the Commission it appears in section 251(b)(3), applies should be left to intercarrier sought comment on whether the only to the provision of negotiations, stating that ‘‘call branding customers of competing providers of nondiscriminatory access to operator can be provided, though not without exchange and/or toll service would be and directory assistance services.345 able to access directory assistance by considerable added effort and expense, GCI, on the other hand, asserts that the dialing ‘411’ or ‘555–1212,’ which are to facilities-based providers who route unreasonable dialing delay provision nationally-recognized numbers for traffic from their networks to the applies to both the dialing parity and directory assistance, or whether incumbent LEC’s network by trunk nondiscriminatory access provisions of alternative dialing arrangements would group. Providing branding for resold section 251(b)(3).346 MFS, NYNEX and services at the line number level is be necessary. 150. No commenters recommended Sprint recommend that we define extremely difficult within the limits of ‘‘dialing delay’’ to cover the period from the public switched network. When that we require different arrangements for dialing directory assistance. AT&T when a user completes dialing to when dealing with multiple resellers, there is the call is ‘‘handed off’’ to a connecting no simple method for the incumbent states that while alternative protocols may be permitted, no carrier should be LEC, whenever multiple LECs are LEC to determine by individual line 347 341 involved in call completion. ALTS, number which brand should be required to use them. Bell Atlantic states that ‘‘[n]o dialing arrangements however, suggests that we define applied.’’ 337 Bell Atlantic also suggests ‘‘dialing delay’’ to cover the period from that this issue be left to carrier for directory assistance other than 411 and 555–1212 are necessary. A when the end user completes dialing to negotiations.338 the point where a network response is facilities-based provider will be able to 348 use these numbers and route its first received. 332 See First Report and Order at section II for a customers’ calls in whatever way it 154. Several parties contend, discussion of the applicability of our section 251 however, that we should not adopt a rules to intrastate and interstate services. chooses (to its own directory assistance, 333 See supra para. 122. See also 47 U.S.C. 208 to that of the incumbent exchange (common carrier complaint authority) and 47 U.S.C. 342 Bell Atlantic comments at 8–9. 343 501–510. 339 As with operator services, supra, we note that 47 U.S.C. § 251(b)(3). 334 47 U.S.C. 226(a)(7). carriers must comply with the branding 344 See NPRM at para. 218. 335 See 47 U.S.C. 226(a)(7), (b)(1). See generally requirements of section 226, to the extent that their 345 U S WEST comments at 11. supra paras. 123–129. services are within the section 226 definitions. See 346 GCI reply at 2. 336 See AT&T comments at n.12. 47 U.S.C. 226. 347 See Sprint comments at 10; MFS reply at 8; 337 CBT reply at 5. 340 See First Report and Order at section VIII. NYNEX comments at 9. 338 See Bell Atlantic reply at 5. 341 See AT&T comments at 10. 348 ALTS comments at 6. Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations 47311 definition of ‘‘dialing delay.’’ 349 Bell 157. We conclude that a 160. For operator services and Atlantic states that there is ‘‘no need to ‘‘comparative’’ standard for identifying directory assistance calls, such dialing try to develop a definition of what ‘‘unreasonable dialing delay’’ is delay can be measured by identifying constitutes ‘unreasonable dialing necessary in order to ensure that, when the time a call spends in queue until the delays.’ To the extent that this ever competing providers obtain dialing providing LEC processes the call. We becomes an issue, it is best handled parity and nondiscriminatory access to recognize that the time of arrival of a with a specific factual record.’’ 350 operator services and directory telephone call can be recorded (1) at the 155. Several parties recommend assistance, such access does not come originating LEC’s switch; (2) upon defining ‘‘unreasonable’’ as any delay with unreasonable dialing delays. We entering the operator services or that exceeds that of the providing conclude, therefore, that the dialing directory assistance queue; and (3) at LEC.351 ACSI suggests that the delay experienced by the customers of the time of answering by the providing Commission ‘‘declare a delay a competing provider should not be LEC’s operators for such services. We ‘unreasonable’ if the average access time greater than that experienced by believe that it is possible to compare the for competing providers exceeds the customers of the LEC providing dialing treatment of calls placed by customers average access time for the LEC itself,’’ parity, or nondiscriminatory access, for of the competing provider with those of and that ‘‘* * * the LEC and competing identical calls or call types. For the calls originating from the providing providers should get equal priority in reasons stated below, we conclude that LEC’s customers, and thus determine if LEC call processing systems, which this ‘‘comparative standard’’ is more unreasonable dialing delays are would result in identical dialing delays, appropriate in this context than a occurring. Such a comparison would on average, for LECs and competing specific technical standard.355 hold all LECs responsible only for providers.’’ 352 Other parties argue that 158. In our Number Portability delays within their control. LECs should not be held responsible for Order,356 we indicated that ‘‘at a 161. In the event that a dispute arises unreasonable dialing delays that are not minimum, when a customer switches between a competing provider and a caused by their networks or are not carriers, that customer must not providing LEC as to dialing delay, we within their control.353 experience a greater dialing delay or call conclude that the burden is on the set up time * * * due to number providing LEC to demonstrate with b. Discussion portability, compared to when the specificity that it has processed the call 156. We conclude that section customer was with the original on terms equal to that of similar calls 251(b)(3) prohibits ‘‘unreasonable carrier.’’ 357 The standard that we are originating from its own customers. dialing delays’’ for local and toll dialing adopting for ‘‘unreasonable dialing Such ‘‘terms’’ include the amount of parity, and for nondiscriminatory access delay’’ under section 251(b)(3) is time a providing LEC takes to process to operator services and directory consistent with the standard we adopted incoming calls, the priority a LEC assistance. The reference to in the Number Portability Order. assigns to calls, and might also take into ‘‘unreasonable dialing delay’’ is 159. We conclude that the statutory account the number of calls abandoned ambiguous because it is in a language on unreasonable dialing delays by the caller of the competing provider. prepositional phrase at the end of places a duty upon LECs providing Furthermore, to the extent that states section 251(b)(3), following references dialing parity or nondiscriminatory have adopted specific performance both to the duty to provide dialing access to operator services and directory standards for dialing delay between parity and the duty to permit assistance to process all calls from competing providers, we do not nondiscriminatory access to telephone competing providers, including calls to preempt such standards, and states may numbers, operator services, directory the LEC’s operator services and enact more detailed standards. assistance, and directory listings. In directory assistance, on an equal basis 162. We do not believe that measuring light of this ambiguity, and the absence as calls originating from customers of ‘‘unreasonable dialing delay’’ from the of legislative history, we look to the the providing LEC. In other words, calls period beginning when a caller purpose of section 251 and to the record from a competing provider must receive completes dialing a call and ending to interpret the ‘‘unreasonable dialing treatment in the providing LEC’s when the call is delivered (or ‘‘handed delay’’ provision. Examining the network that is equal in quality to the off’’) by the LEC to another service statutory language in light of the plainly treatment the LEC provides to calls from provider is practical with respect to pro-competitive thrust of these section its own customers. We recognize that dialing parity or nondiscriminatory 251 requirements, we conclude that LECs may have the technical ability to access. While we understand that such Congress intended the dialing delay identify whether a call is originating a measurement can be made, and is prohibition to apply to both the from a competing provider (e.g., by fully within the control of one LEC, obligation to provide dialing parity and cross-referencing the Automatic Number prohibiting a providing LEC from the obligation to permit Identification (ANI), or by identifying introducing dialing delay in the nondiscriminatory access to operator the connecting trunk group). Thus there originating segment of calls under its services and directory assistance.354 may exist on the part of the providing control benefits only the customers of Further, commenters did not distinguish LEC the ability to discriminate and to the providing LEC. The providing LEC between dialing delay in dialing parity degrade service quality for a competing already has sufficient motivation to and nondiscriminatory access contexts. provider’s customers by introducing provide efficient service to its own unreasonable dialing delays. customers. Finally, we conclude that the 349 See, e.g., Bell Atlantic comments at 9, U S proposal to measure dialing delay from WEST comments at 11. 355 See infra paras. 163–164, for a discussion of the completion of dialing to a network 350 Bell Atlantic comments at 9. specific technical standards for dialing delay. response (e.g., when a caller receives 351 See, e.g., Excel comments at 8; Sprint 356 In the Matter of Telephone Number Portability, busy-tone signalling information from comments at 11. CC Docket No. 95–116, First Report and Order and the called line) is unsatisfactory, 352 ACSI comments at 10. Further Notice of Proposed Rulemaking, FCC 96– 353 See, e.g., GTE comments at 19; USTA reply at 286 (July 2, 1996) (Number Portability Order) 61 FR because it fails to isolate the segments 6–7. 38605 (July 25, 1996). of a call within an individual LEC’s 354 47 U.S.C. 251(b)(3). 357 Id. at para. 56. control. 47312 Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations

2. Specific Technical Standard for IV. Network Disclosure fall within the ambit of the disclosure 370 Dialing Delay 165. Section 251(c)(5) of the 1996 Act requirement. Some incumbent LECs also express the fear that a broad a. Background and Comments requires incumbent LECs to ‘‘provide reasonable public notice of changes in interpretation of the statute ‘‘might 163. In the NPRM, the Commission the information necessary for the expose (them) to unintended liability for asked commenters to identify a specific transmission and routing of services giving information that the local period of time that would constitute an using that local exchange carrier’s exchange carrier is not qualified to ‘‘unreasonable dialing delay.’’ NYNEX facilities or networks, as well as of any provide’’ or that the (local exchange was the sole commenter proposing a other changes that would affect the carrier) might be held liable for results quantitative measurement. In this interoperability of those facilities or of decisions that the interconnector 371 regard, however, NYNEX recommends networks.’’ made based upon this information.’’ These incumbent LECs claim that that the Commission should issue a A. Scope of Public Notice recommended maximum period of competing providers’ informational delay rather than a mandatory 1. Definition of ‘‘Information Necessary needs would be fulfilled even if public disclosure were limited to ‘‘relevant standard.358 NYNEX states that ‘‘an for Transmission and Routing’’ interfaces or protocols.’’ 372 USTA appropriate recommendation for this a. Background and Comments suggests an alternate definition: ‘‘all time period is that it should not exceed 166. In our NPRM, we tentatively changes in information necessary for the 5 seconds.’’ 359 The majority of concluded that ‘‘information necessary transmission and routing of services commenters urge the Commission not to for transmission and routing’’ should be using the local exchange carrier’s impose a specific technical dialing defined ‘‘as any information in the facilities, or that affects delay standard at this time.360 For incumbent LEC’s possession that affects interoperability.’’ example, GTE states that ‘‘[n]umber interconnectors’ performance or ability 169. According to some competing portability, dialing parity and other to provide services.’’ 363 providers, narrowing the scope of newly required actions will 167. Most commenters support the information that must be publicly undoubtedly affect network tentative conclusion in the NPRM.364 disclosed would preserve the performance, including dialing delay, at For example, MFS asserts that our information advantage that incumbent least during a transition period. Any definition would ‘‘minimize the risk LECs possessed before the passage of the current determination of an that an incumbent LEC could take 1996 Act.373 Also, AT&T notes that a unreasonable delay will be based on actions inconsistent with narrowly constructed disclosure network designs that will bear little (interconnection and interoperability)’’ requirement would contradict the resemblance to the network structures of and that the term ‘‘should be applied as language of the statute that specifically tomorrow.’’ 361 Finally, the Illinois broadly as possible.’’ 365 MCI states that identifies ‘‘changes that would affect the Commission states that it is currently a broad definition is ‘‘necessary for new interoperability of those facilities or studying the same issue for number entrants to receive notice of technical networks.’’ 374 AT&T states that some portability in Chicago, and suggests that changes.’’ 366 Time Warner also asserts information ‘‘is both necessary for the Commission may wish to adopt the that ‘‘this broad-based definition * ** proper transmission and routing and Illinois Commission’s standard upon is critical to ensuring that (incumbent can affect the network’s completion of its study.362 local exchange carriers) fulfill all of the interoperability’’ although it is not b. Discussion obligations imposed upon them by directly relevant to the interconnection Section 251(c).’’ 367 point.375 AT&T presents five examples 164. We conclude that the record does 168. Some, mostly smaller, incumbent of technical changes that do not directly not provide an adequate basis for LECs disagree with our proposed relate to the interconnection point but determining a specific technical standard, stating that it is ‘‘too broad,’’ that nevertheless could have standard for measuring unreasonable ‘‘an onerous burden,’’ ‘‘not necessary,’’ ‘‘profound’’ implications for competing dialing delays. Commenters do not and ‘‘may not be possible.’’ 368 Other service providers. These changes address separately the dialing delay incumbent LECs claim that network include those that (1) alter the timing of prohibition as it applies to each of the disclosure requirements should be call processing; (2) require competing services covered by section 251(b)(3): limited to ‘‘changes that affect the service providers to install new local and toll dialing parity, and interconnection or interoperability of equipment, such as echo cancelers; (3) nondiscriminatory access to operator the network.’’ 369 Their overarching affect recognition of messages from services and directory assistance. We concern is that the proposed definition’s translation nodes; (4) alter loop thus conclude that, until dialing delay reference to ‘‘any information’’ would impedance levels, which could cause can be reliably measured after dialing be interpreted so broadly that virtually service disruptions; and (5) could parity is a reality, the ‘‘comparative’’ any network-related information would disable a competing service provider’s 376 standard adopted in paragraph 157, loop testing facilities. supra, will provide a workable national 363 NPRM at para. 189. 364 rule for the industry. We intend to See, e.g., ACSI comments at 11; ALTS 370 GVNW comments at 1; Ameritech comments at comments at 2; AT&T comments at 23; Bell Atlantic 26. revisit the issue at a future date if we comments at 10; GCI comments at 4; Illinois 371 GVNW comments at 1–2. should find that our ‘‘comparative’’ Commission comments at 59; MCI comments at 15; 372 Nortel states that the incumbent local standard is inadequate to ensure fair MFS comments at 12–13; Ohio Commission exchange carrier should only ‘‘provide the interface competition. comments at 4; Telecommunications Resellers information,’’ and the competing service provider Association comments at 11; Time Warner should then ‘‘perform its own ‘reverse engineering’ comments at 3; U S WEST comments at 12. in developing its own products so as to be 358 See NYNEX comments at 9–10. 365 MFS comments at 12–13. compatible with the interface.’’ Nortel comments at 359 Id. 366 MCI comments at 15. 5. 360 See, e.g., Bell Atlantic comments at 9; MFS 367 Time Warner comments at 3. 373 See, e.g., Time Warner comments at 3–4. reply at 8. 368 GVNW comments at 1; Ameritech comments at 374 AT&T reply at 25–26. 361 GTE comments at 19. 26; Rural Tel. Coalition comments at 2. 375 Id. 362 See Illinois Commission comments at 70. 369 Bell Atlantic reply at 9. 376 AT&T reply at n.56. Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations 47313

170. Some incumbent LECs suggest enhance competition or network disclosure requirement, both of which that network disclosure requirements reliability. While competing service have been applied to incumbent LEC should also apply to competing service providers must respond to incumbent activities for some time. In light of these providers.377 MCI and MFS contend, LEC network changes, competing preexisting requirements, we find that however, that the plain language of the service providers, in general, are not in the standard we proposed in the NPRM statute requires imposition of public a position to make unilateral changes to is not burdensome but reasonable, disclosure requirements only upon their networks because they must rely providing sufficient disclosure to insure incumbent LECs. MFS states that the so heavily on their connection to the against anti-competitive acts as well as duty to disclose change information was incumbent LEC’s network in order to to ensure certain and consistent imposed upon incumbent local provide ubiquitous service. disclosure requirements. exchange carriers because they have Accordingly, competing service 174. We have considered the impact sufficient ‘‘control over network providers already face sufficient of our rules in this section on small standards to harm competition’’ and the incentives to ensure compatibility of incumbent LECs, including Rural Tel. ‘‘requisite size and market power to their planned changes with the Coalition’s and GVNW’s requests for a change their networks in a manner that incumbent LEC’s network. In addition, less inclusive definition of ‘‘information stymies competition.’’ 378 MFS argues if an incumbent LEC were permitted to necessary for transmission and that imposing notification requirements obtain such information from a routing.’’ 385 We do not adopt these on competing service providers would competing service provider, the proposals because we are unable to be an ‘‘empty exercise’’ because ‘‘new incumbent LEC might be able to obtain grant such leniency to small businesses entrants * * * can do little, if anything, the competing service provider’s and simultaneously ensure adequate to change their networks in a manner business plans and thereby stifle information disclosure to facilitate the that adversely impacts the (incumbent competition.382 development of a pro-competitive LECs).’’ 379 MFS also argues that 173. We conclude that our disclosure environment for every market competing service providers have standard is consistent not only with participant, including other small ‘‘powerful economic incentives’’ for section 251(c)(5), but also with the businesses. We note, however, that 383 maintaining compatibility with requirements of the ‘‘all carrier rule’’ under section 251(f)(1) certain small 384 incumbent local exchange networks.380 and the scope of the Computer III incumbent LECs are exempt from our rules until (1) they receive a bona fide b. Discussion 382 NCTA asserts that incumbent LECs are request for interconnection, services, or 171. Section 251(c)(5) requires that ‘‘entirely capable of providing adequate notice of network elements; and (2) their state information about network changes their network changes without ‘full disclosure of competing service provider’s operations and future commission determines that the request must be disclosed if it affects competing plans.’’’ NCTA reply at 12. is not unduly economically service providers’ performance or ability 383 Unless clearly specified otherwise, in this burdensome, is technically feasible, and to provide service. Requiring disclosure Order, we use the term ‘‘all carrier rule’’ to refer to is consistent with the relevant portions about network changes promotes open the Commission’s network disclosure rule contained in 47 CFR 64.702, as interpreted in the of section 254. In addition, certain small and vigorous competition contemplated Second Computer Inquiry. The all carrier rule incumbent LECs may seek relief from by the 1996 Act. We find that additional obligates ‘‘all carriers owning basic transmission our rules under section 251(f)(2).386 qualifiers that restrict the types of facilities (to release) all information relating to information that must be disclosed, network design * * * to all interested parties on the same terms and conditions, insofar as such 2. Definition of ‘‘Services’’ such as ‘‘relevant information or information affects either intercarrier a. Background and Comments protocols,’’ would create uncertainty in interconnection or the manner in which application and appear inconsistent interconnected (customer-premises equipment) 175. Commenters, including operates.’’ Amendment of Section 64.702 of the incumbent LECs, interexchange carriers, with the statutory language. Timely Commission’s Rules and Regulations (Second disclosure of changes reduces the Computer Inquiry), Memorandum Opinion and and industry organizations, possibility that incumbent LECs could Order on Reconsideration, 84 F.C.C.2d 50, 82–83 unanimously support our tentative make network changes in a manner that (1980) 46 FR 19852 (April 1, 1981), further recon., conclusion that the term ‘‘services,’’ as 88 FCC 2d 512 (1981), aff’d sub nom. Computer and inhibits competition. In addition, notice Communications Indus. Ass’n v. FCC, 693 F.2d 198 used in section 251(c)(5), includes both of changes to ordering, billing and other (D.C. Cir. 1982), cert. denied, 461 U.S. 938 (1983). telecommunications services and secondary systems is required if such The all carrier rule also requires that ‘‘[w]hen such information services, as defined in changes will have an effect on the information is disclosed to the separate corporation sections 3(46) and 3(20), respectively.387 it shall be disclosed and be available to any member operations of competing service of the public on the same terms and conditions.’’ Parties agree that it is reasonable to providers, because the proper operation See 47 CFR 64.702; Application of The Southern require that providers of both of such systems is essential to the New England Tel. Co., 10 FCC Rcd 4558, 4559 n.23 telecommunications and information provision of telecommunications (1995); Competition in the Interstate Interexchange services receive this information. ALTS Marketplace, Report and Order, 6 FCC Rcd 5880, services. 5911 n.270 (1991) (The all carrier rule obligates ‘‘all points out that exclusion of information 172. We agree with MCI and MFS that carriers to disclose, reasonably in advance of services or telecommunications services the plain language of the statute requires implementation, information regarding any new from our definition would be imposition of public disclosure service or change in the network.’’); Competition in the Interstate Interexchange Marketplace, Report requirements only upon incumbent and Order, 6 FCC Rcd. 5880, 5911 n.270. (1991) 56 385 Rural Tel. Coalition comments at 2; GVNW LECs.381 In addition, we conclude that FR 55235 (October 25, 1991). comments at 1. imposing this requirement upon Another of the Commission’s rules, 47 CFR 386 For a discussion of the implications and competing service providers would not 68.110(b), requires similar disclosure to customers operation of section 251(f), see First Report and of network changes ‘‘if such changes can be Order at section XII. reasonably expected to render any customer’s 387 47 U.S.C. § 153(20), (46). See NPRM at para. 377 Ameritech comments at 29; BellSouth terminal equipment incompatible with telephone 189; ALTS comments at 2; Ameritech comments at comments at 2; NYNEX comments at 15–16; Rural company communications facilities, or require 25; BellSouth comments at 3; District of Columbia Tel. Coalition comments at n.4. modification or alteration of such terminal Commission comments at 6–7; GCI comments at 4; 378 MFS reply at 26. equipment, or otherwise materially affect its use or Illinois Commission comments at 59; MCI 379 MFS reply at 26–27. performance.’’ We will refer to this rule specifically comments at 15; MFS comments at 12; 380 Id. by number where necessary. Telecommunications Resellers Association 381 MCI reply at 7; MFS reply at 25, 26. 384 See infra para. 204 and n.449. comments at 11; U S WEST comments at 12. 47314 Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations

‘‘needlessly restrictive.’’ 388 BellSouth transparent to both parties’ end been clearly identified.398 ALTS also also notes that the inclusion of users.’’ 393 No alternative definitions for supports a broadly defined class of information services for public notice the term ‘‘interoperability’’ were changes that trigger network disclosure purposes should not vest information proposed by commenting parties. requirements, asserting that some service providers with substantive rights b. Discussion changes, such as those affecting under Section 251, except where they provisioning and billing for a carrier’s are also operating as a 178. We define the term service, might not otherwise be reported telecommunications carrier under the ‘‘interoperability’’ as ‘‘the ability of two adequately, resulting in service 1996 Act.389 or more facilities, or networks, to be disruptions.399 connected, to exchange information, b. Discussion and to use the information that has been 181. Ameritech claims that disclosure 176. We conclude that the term exchanged.’’ As this definition of obligations should only be triggered by ‘‘services’’ includes both ‘‘interoperability’’ was taken from the a new or ‘‘substantially changed’’ telecommunications services and IEEE Standard Dictionary of Electrical network interface, or a change that information services, as defined in and Electronics Terms, we believe that ‘‘otherwise affects the routing or sections 3(46) and 3(20) of the Act, this well established and widely termination of traffic delivered to or respectively. Providers of both accepted industry standard can be from the incumbent LEC’s network.’’ 400 telecommunications services and applied easily and consistently. We find Ameritech also claims that changes information services may make that the concepts of seamlessness and ‘‘that do not impact interconnection and significant use of the incumbent LEC’s transparency are already adequately interoperability * * * do not need to be network in making these offerings. incorporated into this definition’s disclosed at all.’’ 401 AT&T observes, Accordingly, exclusion of either specific interoperability criteria, and however, that public notice information services providers or that further exposition of these concepts requirements should also apply to some telecommunications services providers is not necessary. changes that do not directly relate to the would be needlessly restrictive. We also 402 4. Changes That Trigger the Public interconnect point. affirm that the inclusion of information Notice Requirement services for public notice purposes does b. Discussion not vest information service providers a. Background and Comments 182. We conclude that an incumbent with substantive rights under other 179. In the NPRM, we noted that LEC must provide public notice in provisions within section 251, except to ‘‘public notice is critical to the uniform accordance with the rules and schedules the extent that they are also operating as implementation of network disclosure, telecommunications carriers. we adopt in this proceeding, once the particularly for entities operating incumbent LEC makes a decision to 3. Definition of ‘‘Interoperability’’ networks in numerous locations across implement a change that either (1) a variety of states.’’ 394 We requested affects competing service providers’ a. Background and Comments comment as to what changes should performance or ability to provide 177. The Commission tentatively trigger the notice requirement. service; or (2) otherwise affects the concluded that the term 180. Several commenters suggest that ‘‘interoperability,’’ as used in section timely notice should be provided ability of the incumbent LEC’s and a 251(c)(5), should be defined as ‘‘the whenever an upcoming change in the competing service provider’s facilities ability of two or more facilities, or incumbent LEC’s network may affect the or network to connect, to exchange networks, to be connected, to exchange way in which a competing provider information, or to use the information information, and to use the information offers its service.395 Examples of such exchanged. We believe that a broad that has been exchanged.’’ 390 This changes include, but are not limited to, standard is appropriate, to reduce the definition of ‘‘interoperability’’ was changes in transmission, signalling possibility that incumbent LECs may taken from the IEEE Standard standards, call routing, network fail to disclose information a competing Dictionary of Electrical and Electronics configuration and logical elements.396 service provider may need in order to Terms.391 Commenters, including Also, commenters assert that public maintain adequate interconnectivity and incumbent LECs, interexchange carriers, notice should be required when a interoperability in response to state commissions, and industry change will affect the electronic incumbent LEC network changes. associations, are unanimous in their interfaces, data elements, or transactions Examples of network changes that support for our tentative conclusion.392 that support ordering, provisioning, would trigger public disclosure The Ohio Commission also suggests that maintenance and billing of the network obligations include, but are not limited we expand our definition of facilities.397 The Illinois Commission to, changes that affect: Transmission; ‘‘interoperability’’ to ‘‘recognize that the notes, however, that the types of signalling standards; call routing; exchange of traffic between an changes that trigger public notice network configuration; logical elements; (incumbent local exchange carrier) and should not be ‘‘micro-defined’’ because electronic interfaces; data elements; and an interconnector must be seamless and overly specific trigger requirements transactions that support ordering, could create situations in which carriers provisioning, maintenance and billing. 388 ALTS comments at 2. would not be required to provide public This list is not exclusive but exemplary; 389 BellSouth comments at 3. notice if a particular change has not incumbent LECs are not exempted from 390 NPRM at para. 189. public notice requirements for a 391 See IEEE Standard Dictionary of Electrical and 393 Ohio Commission comments at 4. Electronics Terms 461 (J. Frank ed. 1984). particular change that is not included 394 NPRM at para. 190. 392 among these examples. ALTS comments at 2; Ameritech comments at 395 25; AT&T comments at 23; District of Columbia ACSI comments at 11; ALTS comments at 2– 3; AT&T comments at 23; Cox comments at 9–10; Commission comments at 6–7; GCI comments at 4; 398 Illinois Commission comments at 59. Illinois Commission comments at 4; MCI comments GCI comments at 5; Ohio Commission comments at 399 ALTS comments at 2, 3. at 15; MFS comments at 12–13; Ohio Commission 4; and Time Warner comments at 4. 400 comments at 4; Telecommunications Resellers 396 ACSI comments at 11. Ameritech comments at 26, 27. Association comments at 12; U S WEST comments 397 See, e.g., AT&T comments at 24; Time Warner 401 Id. at 12. comments at 4. 402 AT&T reply at 26 n.56. Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations 47315

5. Types of Information To Be Disclosed changes.408 For example, Cox notes that to maintain its own network and a. Background disclosure should, at a minimum, respond to technological and market enable a competing service provider to changes.’’ 417 NYNEX also claims that 183. In the NPRM, we tentatively understand: ‘‘(1) How its existing while it has the ability to ‘‘make an concluded that incumbent LECs should technical interconnection arrangements assessment of the likely impact of a be required to ‘‘disclose all information will be affected; and (2) how the form technical change at the interface with a relating to network design and technical and content of the information passed competitor’s network,’’ it would require standards, and information concerning between the interconnected networks ‘‘detailed knowledge of a competitor’s changes to the network that affect will change.’’ 409 ACSI clearly states that network architecture’’ in order to interconnection.’’ 403 We also tentatively ‘‘the content of the notice should calculate the impact a change may have concluded that incumbent LECs specifically identify * * * the impact of on a competing service provider’s specifically must provide: (1) The date the change on current interconnection performance.418 changes are to occur; (2) where changes or access arrangements.’’ 410 187. MCI and TCC suggest that an are to be made or to occur; (3) the type 186. Some incumbent LECs, however, incumbent LEC should also be required of changes; and (4) the potential impact take exception to our tentative to designate a contact for additional of changes; and that these four conclusion to impose on them an information in its public notice. PacTel categories represented the ‘‘minimum obligation to make public disclosure of argues, in response, that such a information that a potential competitor the potential impact of network requirement would be ‘‘impossible to would need in order to achieve and changes.411 They argue that this fulfill’’ because it would require an maintain efficient interconnection.’’ 404 obligation would require incumbent incumbent LEC to designate a ‘‘single b. Comments LECs to become ‘‘experts on the omniscient individual.’’ 419 MFS states operations of other carriers,’’ or impose that the public notice should also 184. A number of commenters agree a ‘‘duty to know what (an) include: ‘‘(a) The charges that the with our tentative conclusions regarding interconnector’s service performance incumbent LEC anticipates will apply to the breadth of information that must be abilities are.’’ 412 Specifically, USTA the carrier for the change; (b) the reported, as well as our minimum expresses concern that this requirement specific number of circuits affected if 405 reporting requirements. Ameritech, ‘‘could be misconstrued as a duty to the change occurs at the time of the however, claims that our requirement is predict what the precise impact might notification; (c) the projected minimum, ‘‘too broad’’ and would ‘‘impose an be, or to educate a competitor on how maximum, and average down times per onerous burden’’ on incumbent LECs, to re-engineer their network.’’ 413 affected circuit; (d) alternatives exceeding the statutory requirements of Ameritech claims that this requirement available to the interconnector; 420 and 406 section 251(c)(5). Ameritech asserts is ‘‘unfair,’’ and ‘‘of little or no value,’’ (e) any other information necessary to that ‘‘excessive exchange of information and implies that this requirement evaluate alternatives and effectuate between competitors is inconsistent creates a ‘‘general duty for (incumbent necessary changes or challenges.’’ 421 with * * * a competitive marketplace’’ LECs) to operate their competitor’s The Ohio Commission, in contrast, and could spur ‘‘allegations of collusion businesses or help them market their claims that information relating to 407 and concerted action.’’ Cox and Time services.’’ 414 BellSouth asserts that ‘‘the network design should be excepted from Warner, however, state that uniform better approach would be to (disclose) public disclosure, and that incumbent public notice of sufficient information information from which an LECs should only be obliged to disclose can attenuate anticompetitive behavior. interconnecting carrier would be able to information regarding changes to ALTS, AT&T and MCI suggest that the determine for itself whether its service existing interconnection information that must be disclosed performance or abilities might be arrangements.422 should include, but should not be affected.’’ 415 NYNEX alleges that c. Discussion limited to, technical specifications and ‘‘(s)uch proposals are over-broad and references to standards regarding unnecessary to ensure * * * network 188. We conclude that we should transmission, signaling, routing and interconnection/interoperability.’’ 416 adopt a requirement of uniform public facility assignment as well as references NYNEX rejects responsibility for notice of sufficient information to deter to technical standards that are evaluating the effect that changes it anticompetitive behavior and that, at a applicable to any new technologies or would make might have upon minimum, incumbent LECs should give equipment, or which may otherwise competing service providers and asserts competing service providers complete affect interconnection. that ‘‘there is no basis for changing the information about network design, 185. A significant cross-section of traditional responsibility of each carrier technical standards and planned commenters specifically advocates changes to the network. Specifically, disclosure of the potential impact of 408 ACSI comments at 11; ALTS comments at 3; public notice of changes shall consist of: District of Columbia Commission comments at 7; (1) The date changes are to occur; (2) the 403 NPRM at para. 190. We referred, as an Excel comments at 10; GCI comments at 5; MCI location at which changes are to occur; example, to the ‘‘All Carrier Rule,’’ which requires comments at 15; MFS comments at 12–13; Ohio public disclosure of ‘‘all information relating to Commission comments at 5; TCC reply at 23; (3) types of changes; (4) the reasonably network design and technical standards * ** Telecommunications Resellers Association foreseeable impact of changes to be [affecting] interconnection * * * prior to comments at 12; Time Warner comments at 8. implementation and with reasonable advance 409 Cox reply at 13. 417 Id. notification.’’ See note 383, supra. 410 ACSI comments at 11. 418 NYNEX reply at 9 n.24. 404 NPRM at para. 190. 411 Ameritech comments at 28; BellSouth 419 PacTel reply at 6–7. 405 Illinois Commission comments at 60; ALTS comments at 3; GVNW comments at 3; NYNEX 420 Although MFS does not elaborate on this comments at 3; AT&T comments at 23–24; District reply at 9; USTA reply at 11. requirement, we interpret this suggestion as a of Columbia Commission comments at 7; Excel 412 BellSouth comments at 3. See, e.g., Ameritech request that an incumbent LEC identify in its public comments at 10; GCI comments at 4–5; MCI comments at 28; GVNW Comments at 3; NYNEX notice a range of proposed competing service comments at 15; MFS comments at 12–13; NCTA reply at 9. provider responses to the planned change that will comments at 12; Telecommunications Resellers 413 USTA reply at 11. maintain interconnectivity and interoperability of Association comments at 12. 414 Ameritech comments at 28. the carriers’ networks. 406 Ameritech comments at 26. 415 BellSouth comments at 3. 421 MFS comments at 14. 407 Id. 416 NYNEX reply at 9. 422 Ohio Commission comments at 5. 47316 Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations implemented, and (5) a contact person just those changes that actually affect can serve as a platform from which to who may supply additional information existing interconnection arrangements. implement this act.’’ 428 regarding the changes. Information 194. Several commenters, however, B. How Public Notice Should Be provided in these categories must caution that industry fora and Provided include, as applicable, but should not be publications should not be the only limited to, references to technical 1. Dissemination of Public Notice vehicles used for the public specifications, protocols, and standards Through Industry Fora and Publications dissemination of network change 429 regarding transmission, signaling, a. Background information and request flexible routing and facility assignment as well disclosure methods.430 Although MCI as references to technical standards that 192. Section 251(c)(5) requires does not object to utilizing industry fora would be applicable to any new incumbent LECs to provide ‘‘reasonable and publications, MCI cautions against technologies or equipment, or that may public notice’’ of relevant network over reliance on these vehicles because otherwise affect interconnection. changes. In the NPRM, the Commission it ‘‘do[es] not believe that * * * parties 189. We find that making available a requested comment on how this notice affected by technical changes [will] contact person will simplify the public should be provided. The Commission receive information in sufficient detail, notification process and reduce the risk tentatively concluded that ‘‘full objectivity, and timeliness.’’ 431 Many that the notifications will be disclosure of the required technical commenters indicate that additional misunderstood or misconstrued. information should be provided through disclosure vehicles are required because Commenters have requested that public industry fora or in industry not all carriers participate in these fora notices include a variety of specific publications.’’ 423 The Commission on a regular basis (partly as a result of information categories, some of which stated that ‘‘this approach would build limited resources) 432 or because the may not be covered by the specific on a voluntary practice that now exists BOCs, in the past, have used industry categories identified in the NPRM. Such in the industry and would result in fora to limit competitors’ access to full specific information, however, may be broad availability of the and timely information in order to put inapplicable, unnecessary or proprietary information.’’ 424 The Commission them at a competitive disadvantage.433 in some circumstances and inadequate sought comment on this tentative Several commenters have noted the or confusing in others. Accordingly, we conclusion. The Commission also potential of the Internet as a vehicle for require instead that incumbent LECs requested comment on whether a providing public notice of network identify a contact person. Such a contact reference to information on network changes.434 Others specifically suggest need not be ‘‘omniscient,’’ but rather changes should be filed with the that incumbent LECs should be required should be able to serve as an initial Commission and, if so, where that to file technical change information contact point for the sharing of information should be located. with the Commission ‘‘in order to information regarding the planned b. Comments ensure a complete, reliable, and network changes. consistent body of information that all 190. Providing notice of the 193. Most commenters agree with our parties may utilize.’’ 435 Some reasonably foreseeable potential impact tentative conclusion in the NPRM that incumbent LECs, however, disagree, of changes does not require incumbent existing industry fora and publications arguing that the Commission need not LECs to educate a competitor on how to are appropriate vehicles for public become a repository of disclosure 425 re-engineer its network, or to be experts notice of network changes. Bell notices because such Commission on the operations of other carriers, or Atlantic notes that ‘‘industry filings would be ‘‘redundant with impose a duty to know the competing participants with an interest in new existing industry functions and contrary service provider’s service performance interfaces routinely monitor to the Commission’s current initiative to or abilities. Rather, we intend that publications and announcements for eliminate unnecessary filings.’’ 436 426 incumbent LECs perform at least disclosures.’’ Some incumbent LECs 195. Bell Atlantic suggests that ‘‘direct rudimentary analysis of the network support the use of industry fora and disclosure to a mailing list of changes sufficient to include in its publications because they are well interconnectors should also be notice (where appropriate) language established, already in place, reach the allowed.’’ 437 MFS proposes extending reasonably intended to alert those likely targeted audience, have worked direct mail notification to ‘‘any other to be affected by a change of anticipated effectively for a number of years, or 427 effects. We find that such cautionary allow for widespread dissemination. 428 USTA comments at 11–12. language will be a valuable, but not USTA states that ‘‘voluntary practices 429 E.g., Cox reply at 12; MCI comments at 17; burdensome, element of reasonable GVNW comments at 4; Rural Tel. Coalition 423 comments at 3. public notice. The Commission gave as examples the Network Operations Forum (NOF) and the 430 E.g., Rural Tel. Coalition comments at 3,5. 191. We do not limit network Interconnection Carrier Compatibility Forum 431 MCI comments at 17–18. disclosure to information pertinent to (ICCF). NPRM at para. 191. 432 See, e.g., Cox comments at 11, reply at 13; MCI those changes in incumbent LEC 424 NPRM at para. 191. comments at 17; GVNW comments at 4; Rural Tel. network design or technical standards 425 ALTS comments at 3–4; Ameritech comments Coalition comments at 3. that will affect existing interconnection at 28–29, reply at 17–18; AT&T comments at 24; 433 MCI comments at 17–18, reply at 7. Bell Bell Atlantic comments at 10; Cox reply at 13; GCI Atlantic refutes this allegation. Bell Atlantic reply arrangements, as requested by the Ohio comments at 5; Illinois Commission comments at at 10. Commission. Such a limitation is 62; MCI comments at 15; MFS reply at 25; NCTA 434 See, e.g., ALTS comments at 3–4; U S WEST neither consistent with the obligations reply at 11; NYNEX comments at 15, reply at 10; comments at 14; MCI comments at 17; Time Warner imposed by section 251(c)(5) nor PacTel comments at 7, reply at 6; Teleport comments at 10 n.12; MFS reply at 25; TCC reply comments at 11; Telecommunications Resellers at 24. consistent with the development of Association at 12. See also NPRM at para. 191. 435 MCI comments at 19; MFS comments at 13. competition. In formulating 426 Bell Atlantic also states that exchange carriers See also Time Warner comments at 10 (establishing interconnection and service plans, both should be able to satisfy their disclosure obligation the Commission as a ‘‘central point of reference’’ actual and potential competing service by indicating their intention to deploy could be less burdensome on incumbent LECs than specifications at the time that they are published by other means of providing public notice). providers need information concerning a standards organization. Bell Atlantic comments at 436 BellSouth comments at 4 n.11. See also network changes that potentially could 10–11. NYNEX reply at 10; PacTel reply at 6. affect anticipated interconnection, not 427 Ameritech reply at 17–18; GTE comments at 7. 437 Bell Atlantic comments at 10. Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations 47317 carrier * * * who specifically requests notice methods other than Commission implemented. As discussed in such notice.’’ 438 PacTel, however, filings must file a certification with the paragraph 235, infra, once a change is claims that imposing these sorts of Common Carrier Bureau, Network implemented in the incumbent LEC’s requirements would ‘‘impose excessive Services Division, identifying the network, information on the change and unnecessary costs on (incumbent) proposed change(s), stating that public must be disclosed under the general LECs.’’ 439 notice has been given in compliance interconnection obligations imposed by 196. BellSouth argues that no with this Order, identifying the location section 251(c)(2). Commission rule is necessary because of the information describing the change 201. We find that information filed current voluntary practices are and stating how the information can be with the Commission under section ‘‘sufficient to ensure that this obtained by interested parties. This information is broadly available.’’ 440 certification must also comply with the 251(c)(5) should eventually be made Similarly, GVNW suggests that rules we adopt in this proceeding. available on the FCC Home Page or information should only be passed to 199. As discussed above, we conclude through other online access vehicles, competing service providers ‘‘case by that industry fora, industry such as ‘‘LISTSERV’’ subscription case * * * as required.’’ 441 Several publications, and the Internet may be mailings or others, and we intend to commenters, however, disagree. Time used to make public disclosure of explore this option fully for the future. Warner, for example, contends that ‘‘the network changes and required technical In addition, we will explore vigorously Commission must adopt a uniform information. We affirm our belief that the possibility that hypertext links from ** * rule which prescribes a specific ‘‘this approach would build on a the Commission Home Page to method by which notification and voluntary practice that now exists in the incumbent LEC Internet sites could both disclosure must be provided’’ and that industry and would result in broad facilitate public notice and centralize will allow interested parties to gain availability of the information.’’ 444 access to change information. We find ready access to the information they Reliance solely on voluntary that direct mail notification alone does require.442 participation in industry fora and not comport with our interpretation of 197. The District of Columbia publications, however, may inhibit the ‘‘public notice’’ as used in this Commission asserts that state ability of some small carriers to proceeding, because such direct commissions may also require disseminate or receive this information. mailings do not provide notice to the information to be filed at the state level, Because of their more limited resources, ‘‘public,’’ but rather provide individual and may need the same information in some smaller incumbent LECs and notice to a selected group of recipients. order to comply with section 252. As competing service providers do not Such mailings could, however, such, state commissions could also be participate in these fora on a regular supplement other methods of used to make information available to basis; nevertheless, all carriers, notification. small competing service providers. competing service providers, and 202. We also address the impact on AT&T, however, argues that there are no potential competitors must have equal small incumbent LECs. We agree with specific differences among the various opportunities to provide and to receive GVNW 445 and Rural Tel. Coalition 446 states that are ‘‘material’’ to our network change information on a national scale. that we can mitigate the impact of our disclosure requirements.443 We believe that wide availability of pertinent network change information rules on small incumbent LECs by c. Discussion effectively removes potential barriers to allowing public notice to be given at 198. We conclude that incumbent entry, which could otherwise frustrate several alternative locations. Because LECs may fulfill their network the efforts of new competitors. As a many of these carriers lack the resources disclosure obligations either (1) by consequence, we conclude that the to participate in industry fora, we have providing public notice through Commission should function as a also provided low cost alternatives, industry fora, industry publications, or ‘‘backstop’’ source of information for including Internet postings or on their own publicly accessible other interested parties. Accordingly, in Commission filings. We expect that our Internet sites; or (2) by filing public lieu of disclosure in industry fora, requirement that either public notice or notice with the Commission’s Common publications, or the Internet, an certification be filed with the Carrier Bureau, Network Services incumbent LEC may file network change Commission will allow small entities, Division, in accordance with the format information directly with the both incumbent LECs and new entrants, and method requirements of the rules Commission. In the alternative, if an to locate network change information we are adopting in this proceeding. In incumbent LEC chooses to provide quickly and inexpensively. In any event, either case, the public notice must public notice through one or more under section 251(f)(1), certain small contain the minimum information industry fora or publications, or the incumbent LECs are exempt from our categories identified in paragraph 188, Internet, we require that it also file a rules until (1) they receive a bona fide above. Incumbent LECs using public certification with the Commission request for interconnection, services, or containing the information outlined network elements; and (2) their state 438 MFS comments at 14, reply at 25. above. We are confident that even small commission determines that the request 439 PacTel reply at 6. incumbent LECs with limited resources is not unduly economically 440 BellSouth comments at 4. will be able to use one of these burdensome, is technically feasible, and 441 GVNW comments at 4. alternatives to give public notice of is consistent with the relevant portions 442 Time Warner comments at 9. See also AT&T network changes. of section 254. In addition, certain small reply at 27 n.58. (arguing that the very existence of 200. An incumbent LEC must such broad disagreement on this issue itself incumbent LECs may seek relief from maintain both the information disclosed bespeaks the need for a uniform national rule and our rules under section 251(f)(2).447 that the absence of a uniform public disclosure in its public notice and any requirement would lead to ‘‘disparate application of nondisclosed supporting information 445 a uniform federal statutory duty, unduly narrow that is nevertheless relevant to the GVNW comments at 4. interpretations of that duty by [independent local 446 Rural Tel. Coalition comments at 3,5. exchange carriers] * * * and competitive harm to planned change, until the change is 447 For a discussion of the implications and new entrants’’). operation of section 251(f), see First Report and 443 AT&T reply at n.59. 444 NPRM at para. 191. Order, section XII. 47318 Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations

2. When Should Public Notice of Second, carriers were required to release individual request.457 Time Warner Changes be Provided? publicly all technical information at requests a concrete standard in this area a. Background least twelve months prior to the and suggests that the Commission introduction of a new service or should indicate that, once an incumbent 203. Section 251(c)(5) requires an network change that would affect LEC has released a public notice of incumbent LEC to provide ‘‘reasonable enhanced service interconnection with change under section 251(c)(5), it must public notice’’ of certain changes to its the network.452 If a carrier could respond to individual requests for network. In the NPRM, we tentatively introduce a new service between six and detailed, technical information concluded that this statutory language twelve months of the make/buy point, concerning network changes under requires incumbent LECs: (1) To provide public disclosure was permitted at the section 251(c)(5) within ten business notice of these changes within a make/buy point, but in no event could days of receiving the request.458 ‘‘reasonable’’ time in advance of the carrier introduce the service earlier 207. Commenters were split on implementation; and (2) to make the than six months after the public whether we should adopt a specific information available within a disclosure.453 disclosure timetable for section ‘‘reasonable’’ time if responding to an 205. The disclosure obligations 251(c)(5) purposes. Several individual request.448 We sought 459 imposed by section 251(c)(5) are broader commenters oppose the adoption of a comment on what constitutes a than those adopted in the Computer III specific timetable, primarily arguing reasonable time in each of these proceeding. While Computer III applies that: (1) Any regulations adopted under situations, and on whether the only to the BOCs and to AT&T, section section 251(c)(5) should define only Commission should adopt a specific minimum guidelines, allowing the timetable for disclosure of technical 251(c)(5) imposes disclosure requirements on all incumbent LECs. states flexibility under section 251(d)(3) information. to adopt more stringent disclosure 204. In the NPRM, we specifically Furthermore, while the Computer III disclosure requirements apply only to requirements dictated by local sought comment on whether we should conditions; (2) a fixed disclosure adopt a disclosure timetable similar to technical information related to new or modified network services affecting the timetable will needlessly or arbitrarily that adopted by the Commission in the delay the introduction of new services 449 interconnection of enhanced services to Computer III proceeding. In Phase II or technical advances; (3) overly long of that proceeding, the Commission the BOC networks, section 251(c)(5) mandates disclosure of a much broader advance disclosure periods will put the required AT&T and the BOCs to disclose incumbent LECs at a competitive spectrum of information.454 information about network changes or disadvantage because competitors will Accordingly, we sought comment in the new network services that affect the be able to bring planned services to NPRM on whether the Commission interconnection of enhanced services market more quickly; (4) the industry should adopt a timetable comparable to with the network at two points in already has in place detailed disclosure 450 that imposed in Computer III for section time. First, these carriers were guidelines that are widely followed on 251(c)(5) network disclosure purposes required to disclose such information at a voluntary basis and that obviate the and, if so, how such a timetable should the ‘‘make/buy’’ point—that is, when need for independent Commission be implemented. the carrier decides to make itself, or to examination of this issue; and (5) the procure from an unaffiliated entity, any b. Comments Commission’s existing ‘‘all carrier’’ rule, product the design of which affects or which contains a flexible standard, 451 206. Most commenters express relies on the network interface. adequately addresses the obligations support for our tentative conclusion that imposed by section 251(c)(5).460 GVNW 448 section 251(c)(5) requires incumbent NPRM at para. 192. warns that the interval from the make/ 449 Amendment of Section 64.702 of the LECs to disclose publicly information buy decision to in-service for small Commission’s Rules and Regulations (Computer III), on network changes within a reasonable Phase I, 104 F.C.C.2d 958 (1986) (Phase I Order), LECs is often less than twelve months time in advance of implementation.455 recon., 2 FCC Rcd 3035 (1987) (Phase I Recon. and states that the Commission should No commenters suggest that the timing Order), further recon., 3 FCC Rcd 1135 (1988) not require technology to be (Phase I Further Recon. Order), second further of disclosure is not governed by section implemented at a slower pace than is recon., 4 FCC Rcd 5927 (1989) (Phase I Second 251(c)(5)’s ‘‘reasonableness’’ standard, Further Recon.), Phase I Order and Phase I Recon. technically feasible merely to satisfy a although at least two commenters Order vacated, California v. FCC, 905 F.2d 1217 notice requirement.461 Commenters also (9th Cir. 1990) (California I); Phase II, 2 FCC Rcd appear to indicate that it would be argue that carriers already face powerful 3072 (1987) (Phase II Order) 52 FR 20714 (1987), reasonable to implement network recon., 3 FCC Rcd 1150 (1988) (Phase II Recon. incentives to ensure that their networks changes immediately upon Order), further recon., 4 FCC Rcd 5927 (1989) interconnect properly because the disclosure.456 Commenters also support (Phase II Further Recon. Order), Phase II Order, reputation of both the incumbent LEC vacated, California I, 905 F.2d 1217 (9th Cir. 1990); our tentative conclusion that an and the interconnecting LEC are at stake Computer III Remand Proceedings, 5 FCC Rcd 7719 incumbent LEC must make this (1990) 56 FR 00965 (December 17, 1990) (ONA if service fails.462 In addition, BellSouth information available within a Remand Order), recon., 7 FCC Rcd 909 (1992), 57 claims that section 251(c)(5) is ‘‘self- FR 05391 (January 24, 1992), pets. for review denied ‘‘reasonable’’ time if responding to an California v. FCC, 4 F.3d 1505 (9th Cir. 1993) effectuating and needs no interpretive (California II); Computer III Remand Proceedings: regulations.’’ 463 452 Bell Operating Company Safeguards and Tier 1 Id. at 1164–65. 453 Id. at 1165. Local Exchange Company Safeguards, 6 FCC Rcd 457 See, e.g., MCI comments at 15. 7571 (1991) (BOC Safeguards Order), 57 FR 4373 454 See discussion of the definitions of 458 Time Warner comments at 11. (February 5, 1992); BOC Safeguards Order, vacated ‘‘information necessary for the transmission and 459 in part and remanded, California v. FCC, 39 F.3d routing of services’’ and ‘‘interoperability,’’ supra. See, e.g., Ameritech comments at 29; 919 (9th Cir. 1994) (California III), cert. denied, 115 455 See, e.g., Ameritech comments at 29; GCI BellSouth comments at 2, 5; District of Columbia S.Ct. 1427 (1995). comments at 5; MCI comments at 15; Time Warner Commission comments at 6, 7–8; GVNW comments at 5; Bell Atlantic reply at 8–9. 450 Phase II Recon. Order, 3 FCC Rcd at 1164. comments at 6; U S WEST reply at 1. 460 Although the Ninth Circuit vacated the Phase II 456 BellSouth argues that ‘‘the Commission should The requirements of the all carrier rule are Recon. Order, the Commission reimposed the permit the offering of the new interface discussed in note 383 supra. network disclosure requirements on remand. See immediately upon the disclosure of the requisite 461 GVNW comments at 4. BOC Safeguards Order, 6 FCC Rcd at 7602–7604. information.’’ BellSouth comments at 5; see also 462 See, e.g., Ameritech comments at 30. 451 Phase II Recon. Order, 3 FCC Rcd at 1164. Nortel comments at 4. 463 BellSouth comments at 1. Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations 47319

208. Several other commenters argue interconnection, with an additional 6 251(c)(5). AT&T notes that the record that, while a disclosure timetable may month period in which use of the does not reflect any material conditions be necessary, the Computer III changes by a competing service provider that vary among states or justify requirements are too rigid. The District is permissive only.472 differing rules. In addition, AT&T of Columbia Commission notes that any 209. Cox argues that disclosure disputes the applicability of the ICCF eventual disclosure timetable must should be made at the ‘‘earliest possible timetable, since that document sets forth balance ‘‘the need to ensure the earliest time’’ and, in particular, at the time the only guidelines to be used by the possible disclosure of information decision is made internally to independent LECs in notifying the BOCs needed by competitors (against) the implement a change, with the ‘‘make/ of network changes.478 need to impose the least administrative buy’’ point being considered the 212. Of the commenters supporting burden on’’ incumbent LECs.464 ‘‘absolute latest date’’ on which concrete federal standards, most support Accordingly, the District of Columbia disclosure is permitted.473 In addition, the adoption of the Computer III Commission maintains that state Cox requests that we obligate incumbent disclosure timetable.479 PacTel notes commissions should be afforded LECs to disclose any unimplemented that existing Commission disclosure flexibility to set timetables that are network changes that are subject to the requirements are familiar to the industry appropriate in light of local section 251(c)(5) notice requirement at and adequate to meet the requirements conditions.465 Several commenters note the outset of interconnection of section 251(c)(5); accordingly it existing industry notification timing negotiations.474 supports the establishment of ‘‘safe standards adopted and issued by the 210. MFS proposes a tripartite harbor’’ rules based on Computer III and Industry Carriers Compatibility Forum scheme, loosely based on the Computer the disclosure requirements contained (‘‘ICCF’’) 466 and argue that widespread III timetable, that classifies certain in our existing rules.480 As discussed industry use of these standards has changes as ‘‘major,’’ ‘‘location,’’ or above, although it advocates certain 475 obviated the need for an additional ‘‘minor.’’ ‘‘Major’’ changes, would be revisions, U S WEST agrees that Commission-imposed timetable.467 MCI, defined as those ‘‘introducing any ‘‘disclosure pursuant to the Computer however, cautions that these existing change in network equipment, facilities, [III] Rules would seem to satisfy the industry guidelines are inadequate specifications, protocols, or interfaces requirements of the (1996) Act.’’ 481 GTE because industry fora, in general, have that will require other parties to make notes that the ‘‘make/buy’’ point is an historically been controlled by the any modification to hardware or appropriate disclosure trigger because it RBOCs.468 U S WEST supports software in order to maintain ensures both the delivery of timely disclosure at the ‘‘make/buy’’ point, but interoperability.’’ Major changes would information to parties that use the argues that additional notice should not be subject to 18 months advance notice. networks and the promotion of carriers’ ‘‘Location’’ changes would be defined as be required for deployment of standard development efforts to support network those ‘‘that require changes in the interfaces and services.469 While MCI innovation.482 geographic location to which traffic is supports adoption of the Computer III 213. Several commenters urge us to routed, or at which unbundled network timetable in this proceeding, it requests adopt rules prohibiting an incumbent elements can be obtained, but (that) do that, in addition: (1) We impose a LEC from disclosing network changes to not otherwise change the manner of mandatory 6-month disclosure period certain preferred entities, including long interconnection or of access’’; such for network changes that can be distance or equipment manufacturing changes could be implemented on 12 implemented within 6 months of the affiliates, prior to public disclosure.483 months notice. ‘‘Minor’’ changes, ‘‘make/buy’’ point; and (2) we clarify including those in ‘‘numbering, routing c. Discussion that incumbent LECs must disclose instructions, signalling codes, or other 214. We find that it would be relevant information they discover after information necessary for the exchange services have been introduced, if such unreasonable to expect other of traffic that do not require telecommunications carriers or information would have been subject to construction of new facilities or changes 470 information services providers to be prior disclosure. AT&T also supports in hardware or software’’ could be made the general parameters of the Computer able to react immediately to network upon notice in accord with the time changes that the incumbent LEC may III timetable, but requests that we intervals prescribed by the ICCF.476 specifically impose a one year minimum have spent months or more planning 211. Many commenters recognize the and implementing; accordingly we advance disclosure obligation on need for a concrete disclosure timetable. reject requests to permit incumbent changes to network elements or AT&T argues that the broad LECs to implement changes operations support system disagreement among commenters itself 471 immediately on disclosure. In order to technology. Similarly, while ACSI is evidence that section 251(c)(5) is not clarify incumbent LECs’ obligations to notes that the Computer III timetable is self-effectuating.477 AT&T opposes the disclose these changes a ‘‘reasonable a ‘‘useful starting place,’’ it argues for a state-by-state approach advocated by the time in advance of implementation,’’ we minimum one-year notice period for District of Columbia Commission, as adopt a disclosure timetable based on modification of the physical form of well as the case-by-case approach that developed in the Computer III advocated by Rural Tel. Coalition, 464 proceeding. Under this timetable, District of Columbia Commission comments at because these approaches could lead to 8. the disparate application of the uniform 465 Id. 478 statutory duty imposed by section Id. 466 Industry Carriers Compatibility Forum, 479 See, e.g., Teleport comments at 11; GCI Recommended Notification Procedures to Industry comments at 5; AT&T reply at 27. for Changes in Access Network Architecture, ICCF 472 ACSI comments at 12. 480 PacTel comments at 5. See 47 CFR 92–0726–004, Rev. 2 (January 5, 1996). 473 Cox comments at 10–11. 64.702(d)(2), 68.110(b). 467 USTA comments at 13; NYNEX comments at 474 Id. at 11. 481 U S WEST comments at 12–13. 16–17; SBC comments at 14. 475 MFS comments at 15–16. 482 GTE reply at 7–8 and comments cited at 7 468 MCI reply at 7. 476 These intervals are prescribed in the ICCF n.15. 469 U S WEST comments at 13. Recommended Notification Procedures. See note 483 See, e.g., Time Warner comments at 8; NCTA 470 MCI comments at 20–21. 466 supra. reply at 12; Ohio Consumer’s Council reply 471 AT&T comments at 25. 477 AT&T reply at 27. at 5–6. 47320 Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations incumbent LECs will be required to the two service providers.485 Under the a change or the feasibility of a change. disclose planned changes, subject to the rules we adopt today, incumbent LECs Instead, a ‘‘definite decision’’ is reached section 251(c)(5) disclosure must disclose changes subject to section when the incumbent LEC determines requirements, at the ‘‘make/buy’’ 251(c)(5) at the ‘‘make/buy’’ point, i.e., that the change is warranted, establishes point,484 but a minimum of twelve the time at which the incumbent LEC a timetable for anticipated months before implementation. If the decides to make for itself, or procure implementation, and takes the first step planned changes can be implemented from another entity, any product the toward implementation of the change within twelve months of the make/buy design of which affects or relies on a within its network.488 point, then public notice must be given new or changed network interface,486 218. We recognize that many changes at the make/buy point, but at least six but at least twelve months in advance of to an incumbent LEC’s network that are months before implementation. implementation of a network change. In subject to disclosure under section 251(c)(5) can be fully implemented less 215. With respect to changes that can Computer III, the Commission defined than twelve months after the make/buy be implemented within six months of ‘‘product’’ in the enhanced services point. Accordingly, if the service using the make/buy point, incumbent LECs context to be ‘‘any hardware or software the network changes can be initiated may wish to provide less than six for use in the network that might affect within twelve months after the make/ months notice. In such a case, the the compatibility of enhanced services with the existing telephone network, or buy date, public notice must be given on incumbent LEC’s certification or public with any new basic services or the make/buy date, but at least six notice filed with the Commission, as capabilities.’’ 487 We believe that this months before implementation of the applicable, must also include a definition can be used to craft a planned changes. certificate of service: (1) Certifying that definition of ‘‘product’’ for purposes of 219. We agree with several a copy of the incumbent LEC’s public section 251(c)(5). Accordingly, for commenters that competing service notice was served on each provider of purposes of network disclosure under providers should not require a full six telephone exchange service that section 251(c)(5), we define ‘‘product’’ months to respond to some categories of interconnects directly with the to be ‘‘any hardware or software for use relatively minor network changes and incumbent LEC’s network a minimum of in an incumbent LEC’s network or in that we would needlessly slow the pace five business days in advance of the conjunction with an incumbent LEC’s of technical advance were we to require filing; and (2) providing the name and facilities that, when installed, could a full six months notice in such a case. address of all such providers of local affect the compatibility of the network, As evidence of this fact, several exchange service upon which the notice facilities or services of an commenters have submitted or referred was served. The Commission will issue interconnected provider of us to industry guidelines developed by public notice of such short-term filings. telecommunications or information ICCF, which detail recommended notice Such short term notices will be deemed services with the incumbent LEC’s periods of 45 days to six months for final on the tenth business day after the network, facilities or services.’’ certain network changes.489 Based on release of the Commission’s public 217. We recognize that some network the record before us, we agree that six notice unless a provider of information changes that affect interconnection, e.g., months may be too long a minimum in services or telecommunications services some location changes, may not require some circumstances. We conclude, that directly interconnects with the an incumbent LEC to make or buy any however, that neither the ICCF incumbent LEC’s network files an products. Disclosure of such changes, guidelines nor any other categorization objection to the change with the however, may be required under section scheme adequately encompasses every Commission and serves it on the 251(c)(5). For purposes of section potential change affecting incumbent LEC no later than the ninth 251(c)(5), therefore, we clarify that the interconnection that an incumbent LEC business day following the release of the ‘‘make/buy’’ point includes the point at may wish to make to its network. In Commission’s public notice. If such an which the incumbent LEC makes a addition, for changes that can be objection is filed, the incumbent LEC definite decision to implement a implemented in less than six months, will have the opportunity to respond network change in order to begin the length of time required for notice to within an additional five business days offering a new service or change the way be considered ‘‘reasonable’’ may vary and the Common Carrier Bureau, in which it provides an existing service. considerably based on advances in Network Services Division, will issue, if Such a ‘‘definite decision’’ requires the technology, the specific implementation necessary, an order determining the incumbent LEC to move beyond plan developed by an incumbent LEC, reasonable public notice period. exploration of the costs and benefits of the particular capabilities of i. The Section 251(c)(5) Timetable interconnecting carriers to adapt, and 485 Because the incumbent LECs control the vast the willingness of the incumbent LEC to 216. Without adequate notice of majority of both facilities and customers in most markets, the impact of such difficulties, at least at be forthcoming with information. Based changes to an incumbent LEC’s network present, would be felt most acutely by a competing on these considerations, we find that a that affect the ‘‘information necessary service provider. fixed timetable for such short-term for the transmission and routing’’ of 486 BOC Safeguards Order, 6 FCC Rcd at 7603. notices would not be appropriate. traffic, a competing service provider The Commission has stated that, ‘‘make/buy applies not only to a carrier’s decision to make or buy 220. Accordingly, with respect to may be unable to maintain an products to implement a change in the network, but changes subject to section 251(c)(5) adequately high level of interoperability also to any decision to make or buy products that disclosure that the incumbent LEC between its network and that of the would rely on such changes.’’ Phase II Order, 2 FCC wishes to implement on less than six Rcd at 3087. The precise definition of the ‘‘make/ incumbent LEC. This inability could buy’’ point has been clarified in some detail. See, months’ notice, we require that the degrade the quality of transmission e.g., id.; Phase I Order, 104 F.C.C.2d at 1080–86; incumbent LEC’s Commission filing, between the two networks or, in a worse Computer and Business Equip. Mfrs. Assoc. Petition whether certification or public notice, case, could interrupt service between for Declaratory Ruling Regarding Section also include a certificate of service: (1) 64.702(d)(2) of the Commission’s Rules and the Policies of the Second Computer Inquiry, Report 484 The definition of the ‘‘make/buy’’ point for and Order (‘‘CBEMA Order’’), 93 F.C.C.2d 1226, 488 Cf. Phase II Order, 2 FCC Rcd at 3087. section 251(c)(5) purposes is discussed infra at 1243–44 (1983). 489 ICCF Recommended Notification Procedures. paras. 216–217. 487 Phase I Order, 104 F.C.C.2d at 1084. See supra note 466. Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations 47321

Certifying that a copy of the incumbent implementation of changes, we caution 224. We agree with several LEC’s public notice was served on each competing service providers that we commenters that incumbent LECs provider of telephone exchange service will not hesitate to intervene where should not make preferential disclosure that interconnects directly with the necessary to ensure that objections are to selected entities prior to disclosure at incumbent LEC’s network a minimum of not posed merely to delay the make/buy point. Accordingly, we five business days in advance of the implementation of incumbent LEC prohibit disclosure to separate affiliates, filing; and (2) providing the name and network changes and that abuse of the separated affiliates,491 or unaffiliated address of all such providers of local Commission’s processes for such a entities (including actual or potential exchange service upon which the notice purpose would expose a competing competing service providers), until the was served. Such filings must be clearly service provider to sanctions.490 time of public notice. titled ‘‘Short Term Public Notice (or 222. If one or more objections are ii. Other Disclosure Proposals Certification of Short-Term Public filed, the incumbent LEC will have five Notice) Pursuant to Rule 51.333(a).’’ additional business days (i.e., until no 225. We find that section 251(d)(3) 221. The Commission will issue a later than the fourteenth business day does not require the Commission to public notice of such short-term filings following the release of the preserve state authority over the timing separate from its public notice of other Commission’s public notice) within of public notice of changes to the section 251(c)(5) filings. Unlike six- which to file a response to the ‘‘information necessary for the month or twelve-month notices, certain objection(s) and serve it on all objectors. transmission and routing’’ of traffic. interested parties will have an Such a response shall: (1) Include Section 251(d)(3) prevents the opportunity to file objections to such information responsive to the Commission from ‘‘preclud[ing] the short-term public notices. Specifically, allegations and concerns identified by enforcement of any (state commission) short term notices will be deemed final objectors; (2) state whether the regulation, order or policy,’’ to the on the tenth business day after the implementation date(s) proposed by the extent that such regulation, order or release of the Commission’s public objector(s) would be acceptable; (3) policy ‘‘establishes (LEC) access and notice unless a provider of information indicate any specific technical interconnection obligations,’’ 492 is services or telecommunications services assistance that the incumbent LEC is ‘‘consistent with the requirements of that directly interconnects with the willing to give to the objector(s); and (4) (section 251)’’ 493 and does not incumbent LEC’s network files an state any other information relevant to ‘‘substantially prevent implementation objection to the change with the the incumbent LEC’s response. In the of this section and the purposes of this Commission and serves it on the case of such contested short-term public part.’’ 494 notices, the Common Carrier Bureau incumbent LEC no later than the ninth 226. Public notice requirements that will issue an Order fixing a reasonable business day following the release of the varied widely from state to state could public notice period. In the alternative, Commission’s public notice. Such an subject both incumbent LECs and if the incumbent LEC does not file a objection must state: (1) Specific reasons potential competing service providers to response within the five-day time why the objector is unable to implement burdensome, duplicative, and period allotted, or if the response adjustments to accommodate the potentially inconsistent obligations that accepts the latest date stated by an incumbent LEC’s changes by the date would impermissibly hamper the objector in response to item (3) of its the incumbent LEC has specified, achievement of the goals of section 251. objection, then the incumbent LEC’s including specific technical Such varied filings requirements would public notice shall be deemed amended information, questions, or other obligate incumbent LECs to file in, and to specify implementation on the latest assistance required that would allow the potential interconnecting carriers to date stated by an objector in item (3) of objector to accommodate those changes; canvass, a multitude of state-level fora its objection without further (2) specific steps the objector is taking in order to glean information concerning Commission action. to implement changes to accommodate network changes. Incumbent LECs that the incumbent LEC’s changes on an 223. At the make/buy point, operate in multiple states could be expedited basis; (3) the earliest possible incumbent LEC plans should be required to disclose a single network- date by which the objector anticipates sufficiently developed that the wide change piecemeal in a variety of that it can accommodate the incumbent incumbent LEC could provide adequate state filings; interconnecting carriers LEC’s changes, assuming it receives the and useful information to competing would then need to retrieve the assistance requested in item (1) (not to service providers. At earlier stages of the information, also piecemeal, from many exceed six months from the date the planning process, options are still being different locations. Neither section incumbent LEC gave its original public explored and alternatives weighed. 251(c)(5) nor a fixed disclosure notice); (4) the affidavit of the objector’s Disclosure at such an early stage could timetable limits the range of network president, chief executive officer, or cause interconnecting carriers to waste changes an incumbent LEC might make; other corporate officer or official with resources in an effort to respond to rather incumbent LECs remain free to suitable authority to bind the network changes that may not occur or make any otherwise permissible change corporation and knowledge of details of that occur ultimately in a significantly upon appropriate notice. Accordingly, the objector’s inability to adjust its different way. As the process of particularly with respect to entities network on a timely basis that he or she implementing the planned changes into whose operations span several states, has read the objection, that the the network goes forward, specific clear, national rules are essential to the statements contained in it are true, that information may also require revision. uniform implementation of network there is good ground to support the Accordingly, we require an incumbent disclosure.495 objection, and that it is not interposed LEC to keep its public notice information complete, accurate, and up- for purposes of delay; and (5) any other 491 47 U.S.C. 274. information relevant to the objection. to-date in whatever forum it has chosen 492 47 U.S.C. 251(d)(3)(A). Because the power to interpose such for disclosure. 493 47 U.S.C. 251(d)(3)(B). objections could vest competing service 494 47 U.S.C. 251(d)(3)(C). providers with extensive power to delay 490 See 47 CFR 1.17, 1.52. 495 See NCTA comments at 12. 47322 Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations

227. Several commenters argue that a agreements, we are unable to rely on lengthy, fact-specific enforcement fixed disclosure timetable will such private notice to satisfy section proceedings. A fixed timetable will needlessly or arbitrarily delay the 251(c)(5)’s duty to provide reasonable create a clear, specific standard that will introduction of technical advances or public notice. be more easily and quickly enforceable new services. It is our intention in this 229. Although advance disclosure and that will better facilitate the proceeding, however, to develop periods will place competing service development of competition and serve disclosure rules that minimize providers on notice of certain products the public interest. unnecessary delay by providing and services the incumbent LECs intend 232. At least one commenter urges us competing service providers with to bring to market, we do not believe to adopt the Computer III timetable that this information will automatically adequate, but not excessive, time to merely as a ‘‘safe harbor’’ provision.501 translate into a competitive advantage respond to changes to an incumbent If we were to do so, however, we would for the competing service providers. The LEC’s network that affect open the notice process to many of the incumbent LEC’s network disclosure interconnection. The primary concern same risks that lead us to reject the all obligations are intended to allow reflected in section 251(c)(5) is carrier rule. Under ‘‘safe harbor’’ rules, competing service providers to make continued interconnection and competing service providers’ notice required changes to their own networks interoperability. If proper planning complaints could become bifurcated occurs, however, the delay associated in order to maintain interoperability and into an initial inquiry as to whether an with this goal should be minimal. uninterrupted, high quality service to incumbent LEC met the safe harbor 228. At least one commenter argues the public. These obligations are provisions of the timetable. If the that, because incumbent LECs and designed to prevent incumbent LECs answer were in the negative, a second, competing service providers have a from using their currently substantial fact-specific inquiry as to whether common interest in ensuring that their percentages of subscribers and highly notice was nevertheless reasonable, networks function together properly— developed networks anticompetitively would then follow. The delay in an interest that removes incentives to to prevent the entry of potential resolving such disputes would not serve withhold vital interconnection competitors. information and obviates the need for 230. Several commenters have argued the public interest. We believe the better fixed, enforceable advance disclosure that existing practices under industry course is to adopt a binding, fixed obligations 496—any fixed timetables for issued, ICCF guidelines 498 or the standard applicable to notice by all disclosure should be negotiated between Commission’s ‘‘all carrier’’ rule,499 incumbent LECs. carriers as part of individual satisfy the requirements of section 233. MFS’s proposed regulatory interconnection agreements. We 251(c)(5) and that no further structure based on a tripartite scheme, disagree. The mere fact that Commission action is necessary. We classifying changes as ‘‘major,’’ interconnection failures can adversely disagree. The guidelines that ‘‘location,’’ or ‘‘minor,’’ subject to affect both an incumbent LEC and a commenters bring to our attention are advance disclosure of 18 months, 12 competing service provider does not neither compulsory nor enforceable at months, and according to industry remove the incumbent LEC’s incentives the Commission. We cannot rely on standards, respectively, is flawed in to delay release of information continued goodwill among carriers that several respects. Initially, section concerning network changes solely in soon may be locked in competition to 251(c)(5) disclosure applies to a broad order to inconvenience its competitors. assure timely disclosure of network spectrum of potential network changes The impact of such failures would fall changes. Similarly, we cannot trust in and we are not confident that MFS’s disproportionately on the competing the ‘‘mutually satisfactory arrangements definitions, or any similar definitions, service provider because, at least in the for timely information exchange’’ that could adequately capture and clarify near term, the incumbent LEC’s network GVNW alleges IXCs and small LECs every potential alteration affecting will connect most of the customers in its reached to ease the conversion to equal interconnection that an incumbent LEC service area directly, without using any access.500 Our new rules, and the new could make to its network. facilities of a competing service market dynamics, may not produce such Categorization debates would inevitably provider. Indeed, we believe that this is agreements. arise among carriers concerning the the reason that Congress chose to place 231. While we are aware of no status of specific, planned changes. this obligation on incumbent LECs only specific complaints concerning the Reasonable public notice is a function of and not on all LECs. In addition, notice functioning of the ‘‘all carrier rule,’’ the the length of time an incumbent LEC of network changes provided to an advent of competition for basic will take to implement a change and the interconnecting carrier, pursuant to a telephone service in the local market length of time an interconnecting carrier privately negotiated agreement, will not will require rules that are specific, will need to respond. Fixed 18-month necessarily be provided to members of easily enforced and very clear. In this and 12-month disclosure periods will the public who are not parties to the respect, we believe that the all carrier not be flexible enough to take advantage specific agreement.497 Accordingly, rule standard lacks adequate specificity of advances in technology that may while carriers may negotiate individual to function efficiently in the section 251 permit increasingly rapid notice arrangements (consistent with the context. Requiring carriers to litigate the implementation of and reaction to preferential disclosure prohibitions meaning of ‘‘reasonable’’ notice through network changes. Also, we find that the discussed in paragraph 224, above) as our complaint process on a case-by-case extended notice periods MFS proposes part of private interconnection basis might slow the introduction and are too long. MFS provides no evidence implementation of new technology and or explanation to support its assertion 496 Ameritech comments at 30, reply at 17. services, and burden both carriers and that competing service providers will 497 Although the contents of privately negotiated the Commission with potentially need a minimum of 18 months notice of interconnection agreements themselves must be 502 disclosed to the public through state level filings, major changes, and the record see 47 U.S.C. 252(h), information exchanged 498 ICCF Recommended Notification Procedures. pursuant to the terms of such an interconnection See supra note 466. 501 PacTel comments at 6. agreement might not be provided at all to this 499 See supra n.383. 502 Cf. NYNEX reply at 10–11 (Such a long notice Commission, state commissions or the public. 500 GVNW comments at 5. period would ‘‘hamstring technological progress Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations 47323 contains broad support for the 12 month requesting carriers information b. Comments 503 notice period from Computer III. indicating the location and technical 238. Ameritech states that the While we intend that competing service characteristics of incumbent LEC requirements of section 251(c)(5) providers have adequate notice of network facilities. Accordingly, actual ‘‘should be reconciled with [the] related planned network changes, we or potential competing service providers obligations’’ set forth in section acknowledge the valid concerns of some needing this type of baseline 273(c)(1) and 273(c)(4).’’ 510 Bell Atlantic commenters that overextended advance information may request it from the suggests that sections 251(c)(5) and notification intervals could needlessly incumbent LEC under section 251(c)(2); 273(c)(1) cover the same type of delay the introduction of new services, subsequent changes to this information technical information.511 Bell Atlantic provide the interconnecting carrier with will be addressed by the section further recommends that we find that an unfair competitive advantage, or 251(c)(5) rules we adopt today. ‘‘timely’’ release of the information slow the pace of technical innovation.504 iv. Small Business Considerations covered by section 273(c)(4) means that iii. Application to Network Changes in the information should be made Progress 236. We have considered the impact available ‘‘a sufficient time in advance On the effective date of the rules of our rules on small incumbent LECs. that the competing service providers implementing incumbent LECs’ network We agree with GVNW that many may make any necessary changes to disclosure obligations under section network changes may not require twelve their networks.’’ 512 SBC comments that 251(c)(5), some incumbent LECs may be months advance disclosure. the disclosure obligations imposed by implementing network changes that the Accordingly, we have provided for six sections 251(c)(5), 273(c)(1), and new rules otherwise would have month, or shorter, notice periods, when 273(c)(4) are ‘‘substantially similar.’’ 513 required them to disclose. With respect such changes can be accomplished MCI argues that section 273(c)(1) to these changes, we do not perceive a quickly. In addition, we note that, under imposes on the RBOCs substantially the need to delay implementation, and no section 251(f)(1), certain small same information disclosure obligations commenter has requested that we do so. incumbent LECs are exempt from our that 251(c)(5) imposes on the incumbent We do require, however, that incumbent rules until (1) they receive a bona fide LECs in general, with the exception that LECs give public notice of such changes request for interconnection, services, or 273(c)(1) explicitly obligates the RBOCs as soon as it is practical, and that notice network elements; and (2) their state to file the information with the in accordance with the section 251(c)(5) commission determines that the request Commission.514 MCI further argues that network disclosure rules be given: (1) is not unduly economically section 273(c)(4)’s ‘‘timely’’ disclosure before the incumbent LEC begins burdensome, is technically feasible, and requirement goes beyond that contained offering service using the changes to its is consistent with the relevant portions in section 251(c)(5).515 network; and (2) no later than 30 days of section 254. In addition, certain small 239. USTA suggests that ‘‘there is no after the effective date of the rules incumbent LECs may seek relief from basis to impose different requirements adopted in this Order. our rules under section 251(f)(2).506 on the BOCs for purposes of compliance 235. We similarly find no need to with section 273(c)(1) than those they adopt rules obligating incumbent LECs C. Relationship With Other Public are required to follow for section to make any formal, initial public Notice Requirements and Practices. 251(c)(5). This is in fact one area in disclosure of comprehensive 1. Relationship of Sections 273(c)(1) and which uniformity would provide a information concerning their networks 273(c)(4) With Section 251(c)(5). benefit to the industry and would be to provide background information administratively simple.’’ 516 In contrast, against which connecting carriers could a. Background the Rural Tel. Coalition argues that the then evaluate changes. In the First requirements of section 273 apply only 237. Section 273(c)(1) requires each Report and Order, we have concluded to the BOCs and ‘‘are not expected to BOC to maintain and file with the that, under section 251(c)(2), incumbent correlate with the requirements of Commission ‘‘full and complete LECs are under an obligation to provide, 251(c)(5) that apply to all incumbent information with respect to the interconnection for purposes of LECs.’’ 517 The Rural Tel. Coalition protocols and technical requirements for transmitting and routing telephone states that the Commission should connection with and use of its exchange traffic alone, exchange access fashion flexible notice requirements telephone exchange facilities,’’ in traffic alone, or both.505 Implicit in this under these sections, recognizing accordance with Commission rules.507 obligation under section 251(c)(2) is the differences in size, market power, and obligation to make available to Section 273(c)(4) obligates the BOCs to ability to impact competing service provide timely information on the providers’ operations that exist among and deny customer benefits’’); U S WEST reply at planned deployment of the BOCs and independent LECs, and 2–3. telecommunications equipment to competing service providers.518 AT&T 503 See, e.g., AT&T comments at 24–25 (Noting interconnecting carriers providing also disagrees with USTA, arguing that that the time periods from Computer III are familiar telephone exchange service.508 We the Commission filing contemplated by to incumbent LECs and a one-year minimum for sought comment in the NPRM on the certain changes would be sufficient advance notice section 273(c)(1) is more detailed than to alternative LECs); MCI comments at 16 (agreeing relationship between these sections and 12 months advance notice is sufficient); Cox the network disclosure obligations 510 Ameritech comments at 31. comments at 11 (‘‘The proposal in the [NPRM] contained in section 251(c)(5).509 511 Bell Atlantic comments at 12. represents the minimum possible standard for 512 Id. Bell Atlantic advocates the same disclosure’’). ‘‘reasonable advance notice’’ standard for use in 504 506 For a discussion of the implications and Cf. Phase II Order, 2 FCC Rcd at 3087 connection with section 251(c)(5). (‘‘[W]hile we believe enhanced service providers operation of section 251(f), see First Report and 513 SBC comments at 13–14. are entitled to receive network information on a Order, section XII. 514 timely basis, we are also concerned that premature 507 47 U.S.C. 273(c)(1). The Commission will MCI comments at 19. disclosure of this information could impair carriers’ address section 273 in a separate rulemaking 515 Id. development efforts and inhibit network proceeding. 516 USTA comments at 13. innovation’’). 508 47 U.S.C. 273(c)(4). 517 Rural Tel. Coalition comments at 4. 505 First Report and Order at section IV. 509 NPRM at para. 193. 518 Id. at 4–5. 47324 Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations the disclosure mandated in section individual carriers.’’ 526 In addition, mechanism, if any, we should use to 251(c)(5).519 USTA notes that all telecommunications ensure compliance with the section carriers are obligated by section 251(c)(5) public notice requirement.532 c. Discussion 251(a)(2) to comply with standards Bell Atlantic, in conjunction with its 240. Because the BOCs clearly meet prescribed under sections 255 and 256 advocacy of a flexible disclosure the 1996 Act’s definition of an and, accordingly, cautions that the standard based on ‘‘reasonableness,’’ ‘‘incumbent LEC,’’ 520 the minimum section 256 process should be suggests that the Commission review disclosure requirements of section conducted with carriers’ section complaints of premature 251(c)(5) apply to the BOCs. We will 251(a)(2) obligations in mind.527 USTA implementation on a case-by-case basis address the specific implications of therefore suggests the possibility that an and, where necessary, issue cease-and- section 273, including the question industry group could develop a set of desist orders.533 Ameritech and GTE whether section 273 imposes additional uniform guidelines for use by all argue that no specific, additional disclosure requirements on the BOCs, in carriers in providing notice of changes enforcement mechanisms are necessary, a separate rulemaking proceeding. that could affect interconnection or because there is no evidence that interoperability.528 existing industry practices are 2. Relationship of Sections 251(a) and 243. Ameritech comments that section 251(c)(5) With Section 256 producing network conflicts or 251(c)(5) is only one part of the overall hardships, or are otherwise not a. Background regulatory structure for coordinating working.534 U S WEST suggests that, if network planning by the industry and 241. Section 251(a) sets forth general carriers fail to make timely disclosure, facilitating interconnection and duties of telecommunications carriers, additional enforcement options can be interoperability.529 Based on this 535 including the duty to interconnect considered in the future. In contrast, analysis, Ameritech argues that the directly or indirectly with the facilities NCTA states that we must adopt notification obligations section 251(c)(5) and equipment of other meaningful sanctions to enforce our imposes should be extended to all LECs telecommunications carriers, and the new network disclosure rules, including under section 256.530 duty not to install network features, significant monetary sanctions functions or capabilities that do not c. Discussion whenever a competitor’s service is disrupted because of an incumbent comply with the guidelines and 244. Section 251(a)(2) imposes a duty LEC’s failure to comply with the notice standards established pursuant to on all telecommunications carriers to 521 522 requirements.536 Cox argues that any section 255 and 256. Section act in ways that are not inconsistent incumbent LEC found to violate section 251(c)(5) sets forth the duty of all with any guidelines and standards 251(c)(5)’s disclosure requirements incumbent LECs to provide reasonable established under section 256. Section public notice of changes in the 251(c)(5) imposes network disclosure should be required to inform all affected information necessary for the obligations on incumbent LECs that are customers of interconnecting carriers transmission and routing of services related to the goals of section 256, that the incumbent LEC’s actions caused using the incumbent LEC’s network.523 inasmuch as section 251(c)(5) sets forth any adverse effects attributable to the The goal of section 256, entitled improperly disclosed network one specific procedure to promote 537 ‘‘Coordination for Interconnectivity,’’ is interconnectivity. We do not decide changes. ‘‘to promote nondiscriminatory here whether compliance with section 246. MFS states that the Commission accessibility by the broadest number of 251(c)(5) is sufficient to satisfy section should adopt rules that would: (1) users and vendors of communications 256, however. The Network Reliability Require each incumbent LEC to respond products and services to public and Interoperability Council will to Commission questions regarding the telecommunications networks used to develop recommendations to the information previously made available provide telecommunications service’’ Commission on the implementation of regarding any network changes within and defines the Commission’s role in section 256.531 We intend to address the scope of section 251(c)(5), and to achieving this goal.524 In the NPRM, we carrier and Commission obligations supplement the information if requested sought comment on the relationship of under section 256 in a future by the Commission; (2) establish a sections 251(a) and 251(c)(5) with rulemaking proceeding. procedure for temporarily blocking any section 256.525 proposed network change until the D. Enforcement and Safeguards b. Comments Commission has time to investigate any 1. Enforcement Mechanisms alleged violations, with respect to either 242. We received few comments on a. Background and Comments provision of notice, or the nature of the this issue. USTA states that, ‘‘in network change; and (3) allow the developing oversight procedures for 245. In the NPRM, we sought Commission, for good cause, to issue an public telecommunications network comment on what enforcement order, without prior notice or hearing, interconnectivity standards under requiring an incumbent LEC to cease 526 Section 256, the Commission can assist USTA comments at 13. and desist from making any specified in alerting the industry to general types 527 Id. at 13–14. 528 changes for a period of up to 60 days to of technology changes which may lead Id. at 14. 529 Ameritech comments at 31. permit Commission investigation of to specific upgrades or modifications by 530 Id. alleged violations.538 Time Warner 531 At its meeting on July 15, 1996, the Network 519 AT&T comments at 24, reply at 28. Reliability and Interoperability Council discussed 532 NPRM at para. 193. 520 47 U.S.C. 251(h). (1) barriers to interconnectivity; (2) how the FCC 533 Bell Atlantic comments at 12. 521 Section 255, ‘‘Access by Persons with most efficiently can oversee network planning to 534 Ameritech comments at 29; GTE reply at 10. assure interoperability; (3) need for standards- Disabilities,’’ will be addressed in a separate 535 U S WEST reply at 3. setting; and (4) the overall reliability of networks. rulemaking proceeding. 536 NCTA comments at 12. 522 See Communications Daily, June 11, 1996 47 U.S.C. 251(a). (announcing July 15 meeting); Public Notice, 537 Cox comments at 12. 523 47 U.S.C. 251(c)(5). NYNEX CEO Seidenberg to Head New Network 538 MFS comments at 16. MFS does not explain 524 47 U.S.C. 256. Reliability and Interoperability Council, 1996 WL what type of network change might require 525 NPRM at para. 193. 185795 (F.C.C. April 18, 1996). Commission investigation or what type or level of Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations 47325 suggests that any failure to comply with section 251(c)(5) network disclosure technical information at ‘‘testing’’ or the rules we establish should be process.541 ‘‘trial’’ stages,550 where typically a addressed through our existing section 250. BellSouth states that, to address carrier is evaluating new technology in 208 complaint process.539 these concerns, the Commission should the field.551 permit disclosing incumbent LECs to 253. Sprint, in ex parte comments, b. Discussion require the recipient of such states that nondisclosure agreements 247. It is essential to the development information to execute a confidentiality related to the marketing of new services of local competition that incumbent agreement, which could be drafted to that will be available from both carriers LECs comply with the network include liquidated damages, may be appropriate.552 Sprint also notes, disclosure obligations of section indemnification, or other appropriate however, that many routine network 251(c)(5). Even if a competing provider remedial provisions.542 In addition, upgrades, such as establishment of new of local exchange service had made BellSouth requests that the Commission central offices, remote offices, or significant inroads into the incumbent confirm that incumbent LECs are not tandems, elimination of tandem LEC’s customer base, it would have to obligated to disclose proprietary locations, changes in the incumbent transmit a substantial number of its information of third parties, but may LEC’s SS 7 network, and basic software customers’ calls to the incumbent LEC’s instead require competing service upgrades, may not require the use of network for termination. If these calls providers to negotiate directly with the nondisclosure agreements.553 While cannot be terminated reliably, third party for access.543 agreeing that network and national customers will be more reluctant to use 251. GVNW suggests that we limit security issues deserve the highest the competing provider’s services. incumbent LEC disclosure only to attention, Teleport expresses concern 248. We recognize the importance of references to industry and that proprietary interest claims could be compliance with our network disclosure manufacturers’ specifications that are used to keep essential network rules, and note that many of the specific widely available, and to other interconnection information from enforcement sanctions offered by information required to interconnect at potential competitors.554 commenters may have merit. The the interface, which would reduce the commenters’ suggestions indicate a amount of proprietary or sensitive b. Discussion belief that the Commission should delay information that would be subject to 254. Having reviewed the record, we or prohibit the implementation of disclosure.544 In addition, GVNW and conclude that the judicious use of changes if we receive sufficiently the Rural Tel. Coalition state that an nondisclosure agreements will help credible allegations of notice violations. incumbent LEC should not be obligated protect incentives to develop innovative Our existing enforcement authority to disclose the specific location of network improvements, and will also would permit us to impose such a physical plant facilities except under protect against potential threats to both sanction and we will not hesitate to do strict nondisclosure agreements, in national and network security by so in appropriate circumstances. The order to preserve the LEC’s competitive limiting the flow of detailed information Commission, however, also has a range position and protect against potential concerning the operation of the national of other penalties it could impose to terrorist disruptions.545 telecommunications network.555 ensure incumbent LEC compliance with 252. Noting that the Accordingly, we will permit the use of the network disclosure rules. The record telecommunications equipment market nondisclosure agreements, subject to currently before us does not reveal a is competitive, Nortel states that a certain restrictions. need for us to mandate specific manufacturer would be seriously 255. Incumbent LECs have a statutory enforcement procedures in the section disadvantaged if its proprietary obligation to provide ‘‘reasonable public 251(c)(5) context. Rather, we will information were disclosed to notice of changes in the information 546 intervene in appropriate ways if competitors. In addition, Nortel necessary for the transmission and necessary to ensure adequate disclosure argues that, in such a case, routing of services using that of public notice information, should manufacturers would face substantially (incumbent LEC’s) facilities or network, sanctions become necessary to reduced incentives to develop advanced as well as of any other changes that 547 encourage full compliance with our products. Motorola, Inc., expresses its would affect the interoperability of network disclosure rules.540 In addition, agreement with both BellSouth and those facilities and networks,’’ 556 as 548 we intend to explore how we can Nortel and comments that disclosure defined in this proceeding. Under increase the efficiency of the current of proprietary information may another provision of the 1996 Act, section 208 formal complaint process in undermine the competitive position of however, the BOCs and any entities that a separate rulemaking proceeding. U.S. manufacturers in the global they own or otherwise control must 549 market. Motorola, Inc., also asks us to protect ‘‘the proprietary information 2. Protection of Proprietary Information, clarify that no disclosure is required of Network and National Security submitted for procurement decisions from release not specifically authorized a. Background and Comments 541 NPRM at para. 194. by the owner of such information.’’ 557 542 BellSouth comments at 5. See Illinois 249. In the NPRM, we sought Commission comments at 63. Thus a rule requiring a BOC to provide comment on the extent to which 543 Id. at 6. safeguards may be necessary to ensure 544 GVNW comments at 5. Ameritech advocates a 550 Id. at 6. that information regarding network similar narrowing of the disclosure obligation. 551 Id. security, national security and the Ameritech comments at 26 n.52. 552 Ex parte letter from Jay C. Keithley, Sprint, to 545 Mr. William F. Caton, Acting Secretary, Federal proprietary interests of manufacturers Id.; Rural Tel. Coalition comments at 4. 546 Nortel comments at 3; Motorola, Inc. reply at Communications Commission, filed in CC Docket and others is not compromised by the 5. Citing similar concerns, GTE urges us to strike No. 96–98, June 26, 1996, at 2. a balance between the information necessary to 553 Id. allegations we should considered sufficient in ensure seamless interconnection and the protection 554 Teleport comments at 12. issuing cease and desist orders. of proprietary information. GTE comments at 6. 555 Should these agreements prove inadequate for 539 Time Warner comments at 11. 547 Id. this purpose, we would revisit this issue. 540 See, e.g., 47 U.S.C. 154(i), 154(j), 206–209, 218; 548 Motorola, Inc. comments at n.4. 556 47 U.S.C. 251(c)(5). 47 CFR 0.91, 0.291. 549 Motorola, Inc. reply at n.5. 557 47 U.S.C. 273(e)(5). 47326 Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations change information publicly, without incumbent LEC on a timely basis. If an by the incumbent LEC. In accordance any provision for the use of a interconnecting carrier or information with its obligation to keep the public nondisclosure agreement, could place a service provider requires genuinely notice information complete, accurate, BOC in the position of having to choose proprietary information belonging to a and up-to-date, the incumbent LEC between compliance with the third party in order to maintain must, if necessary, amend its public Commission’s rule and compliance with interconnection and interoperation with notice: (1) On the date it receives a section 273(e)(5). We also find that the incumbent LEC’s network, the request from a competing service requiring disclosure to the public of incumbent LEC is permitted to refer the provider for disclosure of confidential competitively sensitive, proprietary, or competing service provider to the owner or proprietary information, to state that trade secret information without of the information to negotiate directly the notice period is tolled; and (2) on allowing for the possible use of for its release. While the incumbent LEC the date the nondisclosure agreement is nondisclosure agreements would be might represent the most expedient finalized, to specify a new inconsistent with section 251(c)(5)’s source of the required information, third implementation date. requirement that incumbent LECs parties would be less able to protect 259. Given these incentives, we provide ‘‘reasonable public notice’’ themselves from misuse of their conclude that it is unnecessary either to (emphasis added). It would not be proprietary information and preserve adopt a precise definition of ‘‘reasonable’’ to require such disclosures potential remedies if the incumbent LEC ‘‘competitively sensitive’’ or because they have significant were to disclose directly a third party’s ‘‘proprietary’’ information, or to implications with respect to network proprietary information directly in mandate the terms of nondisclosure and national security, as well as the response to a request. agreements. The Computer III rules, upon which we have modeled the development of competition and 258. We are concerned that protracted disclosure timetable for use in the innovative network improvements. negotiation periods over the terms of a section 251(c)(5) context, explicitly Accordingly, we find that section suitable nondisclosure agreement, or the permit the use of nondisclosure 251(c)(5) requires incumbent LECs to payment of fees or royalties, could agreements in connection with carrier provide notice of planned changes to consume a significant portion of a disclosure of planned changes to the the public sufficient to allow an competing service provider’s notice interested party to assess the possible enhanced services industry at the period. The rules we adopt today ramifications of the change and evaluate ‘‘make/buy’’ point.558 In that proceeding require that, except under short-term whether it needs to seek disclosure of also, the Commission explicitly rejected public notice procedures, an incumbent additional information. The five requests to prescribe a specific type of LEC must give public notice of network categories of information disclosure we agreement, instead holding that: changes a minimum of either six mandate here will meet this standard. we do not think it necessary or helpful for 256. We do not anticipate that the months or twelve months in advance of us to dictate the terms of these private minimum public notice requirements implementation. We find that these agreements. Nondisclosure agreements are we are adopting will obligate carriers to periods will provide adequate notice to widely used in telecommunications, as well interconnecting carriers and information as in other fields. We believe it better to leave disclose competitively sensitive, the exact specifications of the terms of such proprietary, or trade secret information service providers, to ensure that a high level of interconnectivity and agreement to the parties. We would of course in the public arena. In addition, despite be prepared to intervene should parties bring the concerns of Motorola, Inc., Nortel, interoperability can be maintained to our attention evidence of noncompliance and others, we do not anticipate that the between networks. These periods, with the requirements established in this level of information required by a however, are not excessive and will not proceeding.559 competing service provider either to allow excessive time for the negotiation Although we recognize that legitimate transmit and to route services, or to of the terms of nondisclosure concerns exist regarding the security of maintain interoperability will, in the agreements. Because section 251(c)(5) proprietary information, the potential ordinary case, include proprietary places an affirmative obligation on the exists for some incumbent LECs to use information. In the event that such incumbent LEC to ensure reasonable such concerns as either a shield against information is required, however, an public notice of changes to its network, the entry of competitors into their incumbent LEC’s public notice must we require that disclosure of markets, or a sword to hamper the nevertheless identify the type of change information designated by the competitor’s business operations. We planned in sufficient detail to place incumbent LEC as proprietary, whether emphasize that incumbent LECs are interested persons on notice that they owned by the incumbent LEC or a third required to provide adequate access to may potentially be affected, and must party, be accomplished on appropriate even proprietary information if a state that the incumbent LEC will make terms as soon as possible after an actual competing service provider needs that further information available to persons or potential competing service provider information to make adjustments to its signing a nondisclosure agreement. We makes a request to the information network to maintain interconnection believe that suitably fashioned owner for disclosure. Specifically, upon and interoperation. nondisclosure agreements can receipt by the incumbent LEC of a 260. We agree with Motorola, Inc., appropriately balance the competing competing service provider’s request for that market and technical trials are not service provider’s need for knowledge of disclosure of confidential or proprietary subject to disclosure under section network changes with the interests of information, the applicable public 251(c)(5). Trials are not considered the incumbent LEC and equipment notice period will be tolled to allow the regular service and, because the validity manufacturers in retaining control of interested parties to agree on suitable of the incumbent LEC’s trial results proprietary information. terms for a nondisclosure agreement. rests, in part, on successful 257. Accordingly, to the extent that This tolling is consistent with the interconnection, the incumbent LEC has otherwise proprietary or confidential incumbent LEC’s public notice sufficient incentives ensure that information of an incumbent LEC falls obligations and will preserve the competing service providers receive within the scope of the network competing service provider’s ability to disclosure obligation of section implement required changes in its own 558 Phase II Order, 2 FCC Rcd at 3092. 251(c)(5), it must be provided by that network to accommodate those planned 559 Id. at 3092–93. Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations 47327 adequate information. Notice of trials 2. Comments particular industry segment.571 These may be given, as needed, on a private, actions satisfy section 251(e)(1). contractual basis. 263. There is nearly unanimous 265. Commenters’ arguments that we agreement that action taken by the have not fulfilled our duty pursuant to V. Numbering Administration Commission in the NANP Order section 251(e)(1) because the NANC has satisfies the requirement of Section not been convened and has not selected 261. The Commission has repeatedly 251(e)(1).564 GTE states that the NANP a new NANP administrator are not recognized that access to telephone Order ‘‘will ensure that numbering persuasive. In the NANP Order, we numbering resources is crucial for mechanisms are applied in a carrier- required that there be a new, impartial entities wanting to provide neutral fashion, consistent with the number administrator and established telecommunications services because objectives of the 1996 Act.’’ 565 Parties, the model for how that administrator telephone numbers are the means by contending that number administration will be chosen. We thus have taken which telecommunications users gain now performed by Bellcore potentially ‘‘action necessary to establish access to and benefit from the public disadvantages non-BOC providers of regulations’’ leading to the designation switched telephone network.560 In telecommunications services by delay or of an impartial number administrator as enacting the 1996 Act, Congress also denial of numbering resources to them, required by section 251(e)(1). recognized that ensuring fair and nevertheless urge the Commission to 266. We disagree with Beehive’s impartial access to numbering resources move quickly to implement the NANP contention that the NANP Order does is a critical component of encouraging a Order fully.566 Moreover, some argue not meet the requirements of section robustly competitive that to give the NANP Order full effect, 251(e)(1) because it does not address toll telecommunications market in the the North American Numbering Council free number administration. In the United States. Congress has required the (NANC) must be convened promptly.567 NANP Order, we directed the NANC to Commission to designate an impartial CTIA states that until that time, provide recommendations on the administrator of telecommunications ‘‘contentious numbering issues will following question: ‘‘What number numbering and has conferred upon the either go unresolved, leading to resources, beyond those currently Commission exclusive jurisdiction over additional pressure on already burdened administered by the NANP Administrator should the NANP those portions of the North American numbering resources, or these issues Administrator administer?’’ 572 Our Numbering Plan (NANP) that pertain to will be resolved by the remnant of a 568 purpose in directing NANC to address the United States.561 monopoly era system.’’ One commenter, Beehive, argues that the this question was to develop a record A. Designation of an Impartial Number NANP Order does not meet the with respect to commenters’ suggestions Administrator requirements of section 251(e)(1) that the new administrator assume because it does not address toll free additional responsibilities beyond those 1. Background number administration.569 of the current NANP administrator, if necessary, to facilitate competition in 262. Section 251(e)(1) requires the 3. Discussion telecommunications services. By asking Commission to ‘‘create or designate one this question and seeking or more impartial entities to administer 264. We conclude that the action recommendations from the NANC, we telecommunications numbering and to taken in the NANP Order satisfies the section 251(e)(1) requirement that the set into motion a process designed to make such numbers available on an foster competition in all 562 Commission create or designate an equitable basis.’’ In the NPRM, we telecommunications services, including tentatively concluded that action taken impartial numbering administrator. The NANP Order requires that functions toll free, through neutral numbering by the Commission in its July 1995 administration. While the NANP Order NANP Order satisfied this associated with NANP administration be transferred to a new NANP outlines broad objectives for number requirement.563 In that Order, the administration for all Commission directed that functions administrator. In the NANP Order, the Commission articulated its intention to telecommunications services, the associated with NANP administration undertake the necessary procedural specific details of implementation for be transferred to a new administrator of steps to create the NANC.570 toll free services are addressed in the the NANP, unaligned with any Additionally, it directed the NANC to ongoing toll free proceeding, CC Docket particular segment of the select as NANP administrator an No. 95–155. telecommunications industry. In the independent, nongovernment entity that B. Delegation of Numbering NPRM, we sought comment on whether is not closely associated with any Administration Functions this action satisfied the section 251(e)(1) requirement that we designate an 267. In this section, we address the 564 See, e.g., Ameritech comments at 22; District role of state public utility commissions impartial administrator. of Columbia Commission comments at 1; GCI comments at 5; NYNEX comments at 18; AT&T in numbering administration. We 560 See Administration of the North American reply at 2–3. authorize states to perform the task of Numbering Plan, CC Docket No. 92–237, Report and 565 See, e.g., GTE reply at 34. implementing new area codes subject to Order, 11 FCC Rcd 2588, 2591 (1995) (NANP Order) 566 See, e.g., CTIA comments at 4; MCI comments our numbering administration 60 FR 38737 (July 28, 1995). at 10. guidelines contained in the Ameritech 567 561 47 U.S.C. 251(e)(1). See, e.g., AT&T comments at 11. The North Order and further clarified in this Order. 562 American Numbering Council (NANC) is a Federal Id. We also incorporate the petition for 563 See NANP Order. The NANP Order was Advisory Committee created for the purpose of initiated in response to Bellcore’s stated desire to addressing and advising the Commission on policy declaratory ruling, the application for relinquish its role as NANP administrator. See matters relating to administration of the NANP. review, and the record in that Letter from G. Heilmeier, President and CEO, NANC will provide the Commission advice reached through consensus to foster efficient and impartial proceeding and address the Texas Bellcore to the Commission (August 19, 1993). Commission’s pleadings regarding its Bellcore, however, will continue performing its number administration. NANP Administration functions until those 568 See, e.g., CTIA comments at 4. functions are transferred to a new NANP 569 Beehive comments at 2–4. 571 Id. at 2610, 2614, 2617. administrator pursuant to the NANP Order. 570 NANP Order, 11 FCC Rcd at 2608. 572 Id. at 2610. 47328 Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations plan for area code relief in Dallas and policies prohibiting discrimination 2. Area Code Implementation Houston which includes wireless against any type of carrier.’’ 579 Guidelines overlays. We view prompt examination 270. While some commenters argue a. Background of the Texas Commission’s plan as that the Ameritech Order strikes a necessary because the area codes ‘‘proper jurisdictional balance,’’ 273. When almost all of the central currently assigned to these cities have permitting state commissions to make office (CO) codes in an area code are already reached exhaust.573 initial determinations regarding area consumed, a new area code must be 1. Delegation of Matters Related to code administration, subject to assigned to relieve the unmet demand Implementation of New Area Codes Commission review,’’ others request for telephone numbers. Prior to the a. Background further clarification of the federal and enactment of the 1996 Act, state state role in numbering.580 The Texas commissions approved plans developed 268. Section 251(e)(1) confers upon Commission specifically requests that and proposed by the LECs, as CO code the Commission ‘‘exclusive jurisdiction administrators, for implementing new over those portions of the North the ‘‘FCC clarify the states’ roles in number administration by expanding on area codes. New area codes can be American Numbering Plan that pertain implemented in three ways. to the United States,’’ but states that statements in the Ameritech Order and elsewhere regarding the balance of Traditionally, states have preferred to ‘‘(n)othing in this paragraph shall implement new area codes through a preclude the Commission from authority between the FCC and the geographic split, in which the delegating to state commissions or other states.’’ 581 geographic area using an existing area entities all or any portion of such c. Discussion code is split into two parts, and roughly jurisdiction.’’ 574 In response to this half of the telephone customers provision, the Commission tentatively 271. We retain our authority to set continue to be served through the concluded in the NPRM that it should policy with respect to all facets of existing area code and half must change authorize state commissions to address numbering administration in the United to a new area code. States can, however, matters involving the implementation of States. By retaining authority to set new area codes so long as they act simply require a rearrangement of broad policy on numbering existing area code boundaries to consistently with the Commission’s administration matters, we preserve our numbering administration guidelines.575 accommodate local needs. The third ability to act flexibly and expeditiously method available to them is called an b. Comments on broad policy issues and to resolve area code overlay, in which the new 269. Most parties contend that the any dispute related to numbering area code covers the same geographic Commission should ‘‘retain (its) plenary administration pursuant to the 1996 area as an existing area code; customers authority over all facets of (numbering) Act. While we retain this authority, we in that area may thus be served through administration with delegation to states note that the numbering administration either code. 576 model established in the NANP Order of only certain limited functions.’’ 274. In the Ameritech Order, the PageNet urges that any delegation will allow interested parties to Commission recognized the states’ role ‘‘should be clearly defined as to scope, contribute to important policy in area code relief, attempted to clarify review standards, and decision time recommendations. the balance of jurisdiction over limits.’’ 577 Similarly, Time Warner 272. We authorize the states to resolve recommends that any such delegation numbering administration between the matters involving the implementation of Commission and the states, and be accomplished in conformity with the new area codes. State commissions are 578 enumerated guidelines governing Commission’s guidelines. Bell uniquely positioned to understand local Atlantic/NYNEX Mobile, while stating number administration. Additionally, conditions and what effect new area the Ameritech Order declared that that states may be in the best position codes will have on those conditions. to implement area code relief tailored to Ameritech’s proposed wireless-only Each state’s implementation method is, the particular needs of their residents, area code overlay would be of course, subject to our guidelines for warns that the Commission must unreasonably discriminatory and anti- numbering administration, including intervene promptly when any state competitive in violation of the ‘‘departs from federal numbering the guidelines enumerated in the Commission’s guidelines and the Ameritech Order and in this Order as Communications Act of 1934. The 573 Area code exhaust occurs when nearly all of detailed below. We note that this NPRM sought comment on whether the the NXXs in a given numbering plan area (NPA) authorization for states to resolve Commission should reassess the have been consumed. Area code exhaust is a subset matters involving implementation of jurisdictional balance between the of number exhaust, which describes the situation in new area codes is effective immediately. which numbers used for any purpose to support Commission and the states that was telecommunications services are consumed. NPAs Because of the need to avoid disruption crafted in the Ameritech Order in light are known commonly as area codes. The second in numbering administration, there is of Congress’ grant to the Commission of three digits of a telephone number are known as the good cause for this action pursuant to 5 NXX code or Central Office code (CO code) . exclusive jurisdiction over numbering Typically there are 792 NXX codes available for U.S.C.553(d)(3). Some states have administration, with permission to assignment in an area code (every possible implemented new area codes prior to assign to the states any portion of that combination of three digits excluding numbers our release of this order. We ratify their authority.582 The NPRM also sought beginning with a 0 or 1 and numbers ending with actions insofar as they are consistent 11). comment on what action the 574 47 U.S.C. 251(e)(1). with these guidelines. Commission should take when a state 575 NPRM at para. 256. appears to be acting inconsistently with 576 ALTS comments at 8; See also Frontier 579 Bell Atlantic/NYNEX Mobile reply at 2. the Commission’s numbering comments at 5; GCI comments at 5; Indiana 580 See Ameritech Order, 10 FCC Rcd 4596. 60 FR administration guidelines.583 Commission Staff comments at 3; NYNEX 19255 (January 23, 1995). See, e.g., AT&T reply at comments at 18. 7; Bell Atlantic comments at 9; Pennsylvania 577 PageNet comments at 6. Commission comments at 5; ACSI comments at 12. 582 See 47 U.S.C. 251(e)(1). 578 Time Warner comments at 18. 581 Texas Commission comments at 6. 583 NPRM at para. 257. Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations 47329 b. Comments reservation for each competing LEC interpreted to allow for ‘‘innovative’’ 275. Several commenters request that authorized to operate within a means of area code relief crafted to we clarify the Ameritech Order to numbering plan area (NPA) of at least balance the interests, benefits, and prohibit service-specific overlays.584 one NXX code from the original area burdens for all interested parties. 593 Others request clarification about all code. Should the Commission determine that area code overlays, not just service- 277. Cox asserts that area code the Ameritech Order does not permit specific overlays. NCTA, for example, overlays should be prohibited until the such an interpretation, the Texas argues that all overlays deter the competitive concerns they raise are Commission requests that the Ameritech addressed by the implementation of Order be overruled.602 By contrast, development of local competition. If 594 competitors are relegated to new area number portability. Similarly, Vanguard warns against allowing states codes, it says, potential customers will PageNet asserts that number portability too much latitude in interpreting the be forced to change their telephone may render the concept of an area code Ameritech Order. It argues that, if the numbers to obtain service from meaningless; once location portability is Commission does not set boundaries for 585 feasible, numbers will be ported from state action, the Commission’s competitors. NCTA adds that a 595 customer is unlikely to trade a familiar one area code to another. When this procompetitive objectives will remain code for a number that may appear to happens, it says, public preference for a unrealized as state regulators deprive 596 603 involve a toll charge, or to purchase particular area code will disappear. Commission initiatives of their effect. 278. In the view of some, the additional lines from a competitor if 280. Bell Atlantic/NYNEX Mobile Ameritech Order does not prohibit all those lines receive a different area code states that, if states act inconsistently area code overlays and they request than other lines in their home or with Commission guidance on clarification that overlays are an numbering policies, the Commission business.586 Customers who do change appropriate response to area code should intervene promptly.604 The to competing LECs, it claims, will have exhaust.597 In Bell Atlantic/NYNEX District of Columbia Commission urges to dial ten or eleven digits to place local Mobile’s view, for example, the that ‘‘on a showing that a particular calls to incumbent LEC customers in the Commission should not prohibit state is acting in violation of FCC same local calling area. By contrast, overlays when they may be the best guidelines, the FCC may revoke its NCTA maintains that incumbent LEC solution to area code exhaust.598 PacTel delegation of jurisdiction to that customers will be able to reach most agrees that overlays are valuable and, in state.’’ 605 PageNet says the Commission other local customers through some metropolitan areas, are preferable should impose a strict time limit on traditional seven-digit dialing.587 Sprint to geographic splits because: (1) state commission review of relief agrees that all overlays are anti- Overlays do not require existing plans.606 Sprint advises that any party competitive and argues that the industry customers to change their numbers; (2) ‘‘retains the right to appeal any should adopt a geographic split overlays maintain existing communities detrimental state commission mandate approach.588 of interest in their existing geographical to the FCC, and * * * the FCC will act 276. MCI urges the Commission to area code boundaries; (3) overlays do promptly on such appeals.’’ 607 allow an overlay only when it is the not change the boundaries of existing only practical alternative, and suggests c. Discussion area codes; and (4) overlays take less that such circumstances might include: time to implement than a split.599 These 281. In this Order, we are authorizing (a) Exhaust in a small metropolitan area; are significant considerations for states the states to continue the task of (b) multiple nearly-simultaneous area facing number exhaust at an accelerated overseeing the introduction of new area code exhausts; or (c) when exhaust is so pace, it says.600 codes subject to the Commission’s imminent that a split cannot be 279. According to some commenters, numbering administration guidelines.608 implemented quickly enough.589 issues pertaining to area code relief We are reiterating the guidelines Numerous commenters suggest that the plans should be addressed in the first enumerated in the Ameritech Order and Commission should clarify the instance by state commissions, with the clarifying the Ameritech Order to Ameritech Order by imposing understanding that the Commission can prohibit all service-specific or conditions on the adoption of area code intervene if necessary.601 Similarly, the technology-specific overlays, and to overlays.590 Suggested conditions Texas Commission argues that the impose conditions on the adoption of an include: (a) Mandatory ten-digit dialing all-services overlay. Existing 591 Ameritech Order can and should be for all calls within the overlay area; Commission guidelines, which were (b) permanent service provider local conditioned upon the substantial mitigation of the originally enumerated in the Ameritech 592 number portability; and (c) the cost of interim local number portability to Order, state that numbering competing LECs pending the implementation of administration should: (1) Seek to 584 See, e.g., Cox comments at 6 n.11; PageNet permanent local number portability); NCTA comments at 23; SBC comments at 11; WinStar comments at 10; WinStar reply at 17. facilitate entry into the communications reply at 16; Vanguard reply at 5. 593 See, e.g., MFS comments at 8–9; MCI marketplace by making numbering 585 NCTA comments at 9. comments at 12–13 (all remaining NXXs in the old resources available on an efficient and 586 Id. NPA should be assigned to competitors). timely basis; (2) not unduly favor or 587 Id. See also MFS comments at 8–9. 594 Cox comments at 3–4. disadvantage any particular industry 595 588 Sprint reply at 13. See also Cox reply at 3–5; The term ‘‘port’’ means the transfer of a segment or group of consumers; and (3) MCI comments at 11; WinStar reply at 17. telephone number from one carrier’s switch to 589 MCI comments at 12. another carrier’s switch, which enables a customer to retain his or her number when transferring from 602 Texas Commission comments at 5. See our 590 See, e.g., Cox comments at 5, 6 n.12; MFS one carrier to another. See Number Portability discussion below at paras. 294–295 for the Texas comments at 8–9; California Commission comments Order at n.32. Commission’s proposed means of area code relief. at 8; MCI comments at 12–14; NCTA comments at 596 603 10; WinStar reply at 17. PageNet reply at 4. Vanguard comments at 3–4. 597 604 591 See, e.g., MFS comments at 8–9; California See, e.g., Bell Atlantic/NYNEX Mobile reply at Bell Atlantic/NYNEX Mobile reply at 2. Commission comments at 8; MCI comments at 12– 4–6; BellSouth comments at 20. 605 District of Columbia Commission comments at 13; WinStar reply at 17; PageNet comments at 8. 598 Bell Atlantic/NYNEX Mobile reply at 4–6. 2. 592 See, e.g., MFS comments at 8–9; Cox 599 PacTel reply at 31–32. 606 PageNet comments at 7–8. comments at 5; California Commission comments at 600 Id. 607 Sprint comments at 15. 8; MCI comments at 12–14 (overlays should be 601 See, e.g., NYNEX reply at 12; GTE reply at 34. 608 See para. 272, supra. 47330 Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations not unduly favor one technology over burdens created by area code overlays between and within area codes in the another.609 The Commission’s will be greatest during the transition to area covered by the new code; and (2) conclusion in the Ameritech Order that a competitive marketplace. As availability to every existing Ameritech’s proposed wireless-only competition in telecommunications telecommunications carrier, including overlay plan would be unreasonably services takes root, consumers will CMRS providers, authorized to provide discriminatory and anticompetitive in become more accustomed to ten-digit telephone exchange service, exchange violation of sections 201(b) and 202(a) dialing and to area code overlays and access, or paging service in the affected of the Communications Act of 1934 has the states will face less resistance in area code 90 days before the also provided guidance to local central their efforts to implement new area introduction of a new overlay area code, office code administrators and state codes than they will in the near term. of at least one NXX in the existing area commissions implementing area code 284. Nevertheless, we find that it is code, to be assigned during the 90-day relief.610 We find that the guidelines and necessary to clarify the Commission’s period preceding the introduction of the the reasoning enumerated in that numbering administration guidelines as overlay.613 Clarifying the conditions that decision should continue to guide the they apply to area code relief. Recent must exist in order to implement an area states and other entities participating in action taken by the Texas Commission code overlay will reduce the likelihood the administration of numbers because has demonstrated that state that states will act inconsistently with these guidelines are consistent with commissions might interpret our the Commission’s guidelines and the Congress’ intent to encourage vigorous existing guidelines in a manner that is consequent need for the Commission to competition in the telecommunications inconsistent with those guidelines.612 review area code relief plans. marketplace. In addition, we codify in Thus, while we conclude that 287. We are requiring mandatory 10- this Order the directives of the NANP geographic area code splits and digit dialing for all local calls in areas Order that ensure fair and impartial boundary realignments are served by overlays to ensure that numbering administration.611 presumptively consistent with the competition will not be deterred in 282. We disagree with the suggestion Commission’s numbering overlay area codes as a result of dialing of some parties that we prohibit or administration guidelines, we clarify disparity. Local dialing disparity would severely restrict the states’ right to our guidelines with respect to how area occur absent mandatory 10-digit dialing, choose overlay plans. For example, code overlays can be lawfully because all existing telephone users PageNet urges the Commission to implemented. would remain in the old area code and impose specific time constraints on 285. First, we conclude that any dial 7 digits to call others with numbers states and to require default area code overlay that would segregate only in that area code, while new users with plans if states do not take action within particular types of telecommunications the overlay code would have to dial 10 those time constraints. Such restrictions services or particular types of digits to reach any customers in the old would not be consistent with our dual telecommunications technologies in code. When a new overlay code is first objectives of encouraging competition discrete area codes would be assigned, there could be nearly 8 through fair numbering administration unreasonably discriminatory and would million numbers assigned in the old while at the same time delegating to the unduly inhibit competition. We code, with just a few thousand states the right to implement area codes. therefore clarify the Ameritech Order by customers using the new overlay code. 283. As we note above, states are explicitly prohibiting all service-specific If most telephone calls would be to uniquely situated to determine what or technology-specific area code customers in the original area code, but type of area code relief is best suited to overlays because every service-specific only those in the new code must dial local circumstances. Certain localities or technology-specific overlay plan ten-digits, there would exist a dialing may have circumstances that would would exclude certain carriers or disparity, which would increase support the use of area code overlays. services from the existing area code and customer confusion. Customers would Most significantly, area code overlays segregate them in a new area code. find it less attractive to switch carriers do not require any existing customers to Among other things, the because competing exchange service change their telephone number, in implementation of a service or providers, most of which will be new contrast to geographic splits. technology-specific overlay requires that entrants to the market, would have to Additionally, in some metropolitan only existing customers of, or customers assign their customers numbers in the areas continuously splitting area codes changing to, that service or technology new overlay area code, which would will result in area codes not covering change their numbers. Exclusion and require those customers to dial 10 digits even single neighborhoods, a situation segregation were specific elements of much more often than the incumbent’s that can only be avoided by customers, and would require people implementing overlays. Finally, area Ameritech’s proposed plan, each of which the Commission held violated the calling the competing exchange service code overlays can be implemented provider’s customer to dial 10 digits quickly. States may make decisions Communications Act of 1934. 286. To ensure that competitors, when they would only have to dial 7 regarding the relative merits of area including small entities, do not suffer digits for most of their other calls. code splits and overlays so long as they competitive disadvantages, we also Requiring 10 digit dialing for all local act consistently with the Commission’s calls avoids the potentially anti- guidelines. We emphasize that the conclude that, if a state commission chooses to implement an all-services competitive effect of all-services area area code overlay, it may do so subject code overlays. 609 Ameritech Order, 10 FCC Rcd at 4604. 288. Allowing every 610 to two conditions. Specifically, we will Id. at 4608, 4610–12. telecommunications carrier authorized 611 See generally NANP Order. Although we permit all-services overlay plans only resolve specific issues relating to area code when they include: (1) Mandatory 10- 613 implementation in this Order, many other digit local dialing by all customers One NXX will give each carrier the ability to important numbering administration issues will be give at least some of its customers numbers in a addressed in other proceedings. For example, the familiar area code. Guaranteeing more than one use of N11 codes, (e.g., 211, 311, 411, 511, 611, 711, 612 As discussed at paras. 304–308 infra, we find NXX in this situation is difficult because by the 811, 911) will be addressed in The Use of N11 that the Texas Commission’s Order addressing area time the need for the overlay becomes imminent, Codes and Other Abbreviated Dialing code relief in Dallas and Houston is inconsistent few NXX codes remain unassigned in the familiar Arrangements, CC Docket No. 92–105. with the Ameritech Order. area code. Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations 47331 to provide telephone exchange service, their telephone numbers when they Commission’s authority is limited by or exchange access, or paging service in an change carriers. Requiring the existence subordinate to state interests.620 Because area code to have at least one NXX in of permanent service provider number section 251(e)(1) gives the Commission the existing NPA will also reduce the portability in an area before an overlay exclusive jurisdiction over numbering potential anti-competitive effect of an area code may be implemented, matters in the United States, any area code overlay. This requirement however, would effectively deny state uncertainty about the Commission’s and would reduce the problems competitors commissions the option of the states’ jurisdiction over numbering face in giving their customers numbers implementing any all-services overlays administration that may have existed drawn from only the new ‘‘undesirable’’ while many area codes are facing prior to the 1996 Act has now been area codes while the incumbent carriers exhaust. While permanent number eliminated. In light of the enactment of continue to assign numbers in the portability is being implemented, end section 251(e)(1), Comcast’s request that ‘‘desirable’’ old area code to their own users will be allowed to keep their the Commission reconsider its customers.614 telephone numbers when they change conclusion in the Ameritech Order that 289. Incumbent LECs have an carriers, under the Commission’s the Commission does not retain plenary advantage over new entrants when a mandate of interim number 617 jurisdiction over numbering issues in new code is about to be introduced, portability. the United States is moot. Accordingly, 291. If a state acts inconsistently with because they can warehouse NXXs in we dismiss Comcast’s petition. the old NPA.615 Incumbents also have federal numbering guidelines designed an advantage when telephone numbers to ensure the fair and timely availability 293. In the NANP Order the within NXXs in the existing area code of numbering resources to all Commission discussed the states’ are returned to them as their customers telecommunications carriers, parties authority over area code changes and move or change carriers. Thus, to wishing to dispute a proposed area code central office code administration. In advance competition, we require that, plan may file a petition for declaratory response the National Association of when an area code overlay is ruling, rulemaking, or other appropriate Regulatory Utility Commissioners filed implemented, each provider of action with the Commission. Pursuant a Request for Clarification and the telephone exchange service, exchange to section 5(c)(1) of the Communications Pennsylvania Public Utility Commission 618 access, and paging service must be Act of 1934, as amended, authority is filed a Petition for Limited Clarification assigned at least one NXX in the old delegated to the Common Carrier and/or Reconsideration.621 NARUC and NPA. Bureau to act on such petitions. We the Pennsylvania Commission have 290. A number of commenters expect that with the clarifications we asked the Commission to clarify that, suggested that the Commission permit provide in this Order, there will be a while the Commission intended in the area code overlays only if permanent reduced need for such petitions. Unless NANP Order to transfer the incumbent number portability has been it becomes necessary to do so, we LEC functions associated with CO code implemented in the applicable NPA.616 decline to follow the recommendations assignment and area code exhaust to the We decline to do so. We recognize that of parties urging that we enumerate new NANP Administrator, the the implementation of permanent more specific procedures to be invoked Commission did not intend to alter the service provider number portability will if states fail to follow our numbering role of the States in overseeing those reduce the anticompetitive impact of guidelines. We expect that the need for functions.622 Because section 251(e)(1) our review of any state commissions’ overlays by allowing end users to keep gives the Commission exclusive actions with respect to area code relief jurisdiction over numbering matters in should diminish as states gain more 614 The new overlay area code may be considered the United States, and because we less desirable by customers during the beginning of experience with the area code relief clarify the role of the states in its life because it is less recognizable. For example, process generally and with area code numbering administration in this business users that have a telephone number in the overlays in particular, particularly as Order,623 we dismiss the petitions of overlay area code because they have switched states become more familiar with the carriers or obtained new telephone lines might be NARUC and the Pennsylvania Commission’s guidelines in this area. thought to be in a distant location due to the Commission as moot. ‘‘unrecognized’’ area code. Thus, incumbent 292. Finally, we address petitions for carriers would have a competitive advantage clarification or reconsideration that 620 because most of their customers would remain in were filed in the Ameritech and NANP Comcast Petition at 1. According to Comcast, the old, more recognizable code. This effect would footnote 18 of the Ameritech Order explicitly persist until customers become accustomed to the proceedings. On February 22, 1995, overruled dicta in a prior Commission decision that new overlay code. Comcast Corporation filed a Petition for stated that the Commission had plenary jurisdiction 615 See supra n.573. Clarification or Reconsideration of the over CO code allocation. Id. at 3. 616 Teleport Communications Group, Inc. (TCG) Ameritech Order regarding the 621 See Request for Clarification, filed by the has raised this issue in a petition for declaratory Commission’s jurisdiction over National Association of Regulatory Utility ruling filed with the Commission on July 12, 1996. numbering administration.619 In its Commissioners (NARUC Petition) (August 28,1995); TCG’s petition for declaratory ruling asks the Petition for Limited Clarification and/or Commission to: (1) Require that overlay area code petition, Comcast seeks clarification of Reconsideration, filed by the Pennsylvania plans may not be implemented unless permanent the Ameritech Order to the extent that number portability and mandatory 10-digit dialing Commission (Pennsylvania Commission Petition) it implies the Commission does not (August 28, 1995). Nextel filed Comments in exist, and that geographic area code splits must be have broad statutory authority over the used absent these conditions; (2) require the response to the petitions. implementation of TCG’s ‘‘Number Crunch’’ assignment of numbering resources, and 622 See NARUC Petition at 5; Pennsylvania proposal, which would permit NXX assignments seeks reconsideration of any implication Commission Petition at 3. The Pennsylvania across multiple rate centers in blocks of one in the Ameritech Order that the Commission also seeks clarification or thousand numbers; and (3) require as part of a reconsideration of the Commission’s NANP Order BOC’s application to provide in-region interLATA 617 to the extent that it suggests the Commission would services pursuant to section 271 of the 1996 Act a See Number Portability Order. 618 interfere with or preempt a state’s ability to address demonstration that numbering resources are 47 U.S.C. 155(c)(1). available to competing local carriers. We will 619 See Petition for Clarification or local number portability. Id. at 3–4. We do not address TCG’s petition in a separate proceeding. Reconsideration, filed by Comcast Corporation address the states’ role with respect to number See Petition for Declaratory Ruling to Impose (February 22, 1995). PageNet and Nextel portability here because this issue has already been Competitively Neutral Guidelines for Numbering Communications, Inc. (‘‘Nextel’’) filed Comments in addressed by the Commission. See Number support of Comcast’s petition. Portability Order at para. 5. 623 See supra paras. 281–291, and infra paras. 309–322. 47332 Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations

3. Texas Public Utility Commission’s b. Petition and Comments Bellcore’s decision, as acting NANP Area Code Relief Order for Dallas and 295. The Texas Commission ordered a Administrator, not to make the Houston plan that combines an immediate requested NPA assignments for use in a. Background landline geographic split with a Dallas and Houston as a wireless- prospective wireless overlay in the specific overlay.637 294. On May 9, 1996, the Texas 297. The Texas Commission Commission filed two substantively Dallas and Houston metropolitan 631 acknowledges that the FCC has identical pleadings: (1) a petition for areas. In its pleadings to the FCC, the Texas Commission alleges that it exclusive jurisdiction over numbering expedited declaratory ruling pursuant to pursuant to section 251(e)(1) of the 1996 47 CFR 1.2; and (2) an application for specifically considered the Ameritech 632 Act.638 The Texas Commission states expedited review pursuant to 47 CFR Order in crafting its plan. The Texas that the NPRM might provide additional 1.115.624 The Texas Commission states Commission’s Order required SWB to clarification on these issues, but that, that in July 1995, MCI petitioned it for request new area codes from the NANP currently, it is uncertain whether the an investigation into numbering administrator (Bellcore) for the FCC intended to preempt the Texas practices of Southwestern Bell prospective wireless overlays. Bellcore Order, and asks that the Commission Telephone Company (SWB) 625 related refused to supply the new area codes 633 consider the specific facts of this to exhaustion of telephone numbers in unless ordered to do so by the FCC. matter.639 It contends that it carefully the 214 area code serving the Dallas According to the Texas Commission, deliberated the issues and made a metropolitan area.626 SWB proposed to Bellcore incorrectly relied on the relieve numbering exhaustion by Ameritech Order to support a position balanced and equitable decision that is that wireless overlays are, per se, consistent with the Ameritech Order. implementing all-services overlays, 634 which would require ten-digit local invalid and wasteful. Therefore, it insists, any preemption is 296. On March 21, 1996, Bellcore sent 640 dialing within Houston and Dallas unwarranted. a letter to the Network Services Division metropolitan areas.627 In October 1995, 298. According to the Texas of the Common Carrier Bureau, FCC, an administrative law judge heard Commission, the Ameritech Order does explaining its view that the Texas evidence regarding numbering relief not, on its face, prohibit all service- Commission plan violated the 641 plans and issued a written proposal for specific overlays. Instead, it says, the Ameritech Order.635 In that letter, decision in November 1995. In Ameritech Order requires a fact-specific Bellcore asserts that the Ameritech December 1995, the Texas Commission examination of each situation to Order is controlling precedent because determined that public comment on the determine whether the proposed section 251(e)(1) confers exclusive matter was necessary; in January 1996 it numbering plan violates the statutory jurisdiction over numbering conducted public forums in both Dallas prohibition of unreasonable and unjust administration on the Commission. 642 and Houston.628 In March 1996, the discrimination. Further, in the Texas Bellcore further opposes use of NPAs for Commission’s view, its Order ‘‘strikes Texas Commission issued an Order service-specific overlays, because such setting out an area code relief plan.629 the optimal balance’’ and is assignments, it says, are inefficient, ‘‘evenhanded’’ in its effect on carriers On May 17, 1996, we released a public wasteful, and potentially notice establishing a pleading cycle for 636 discriminatory. The Network Services 637 PUCT petition at 3–4. comments on the Texas Commission’s Division responded to the letter on pleadings.630 638 Id. at 5. April 11, 1996, agreeing that the 639 The Texas Commission argues that the April Ameritech Order forbids service-specific 11, 1996, letter did not rule directly on the validity 624 The Texas Commission explains that it is filing of its Order. Moreover, noting that, in the NPRM, both pleadings simultaneously, hoping that the overlays such as those ordered by the Texas Commission and supporting the Commission references the April 11 Common Commission will find one or the other an Carrier Bureau letter, Texas says that the NPRM appropriate vehicle by which to determine states that the Commission (rather than the Network expeditiously whether a Texas Commission order 17, 1996). Comments were due June 6, 1996, and Services Division) agreed with Bellcore’s decision (PUCT Order) pertaining to a proposed area code reply comments were due June 21, 1996. Nineteen not to make the area code assignments requested by relief plan is acceptable. For ease of reference, all parties filed comments, and twelve parties filed SWB. NPRM at para. 257, n.358. Therefore, in citations will be to the Texas Commission petition replies, in response to the Texas Commission’s Texas’ view, the Common Carrier Bureau letter is (PUCT petition) unless citations to both pleadings petitions. an action taken pursuant to delegated authority that are needed for clarification. In this order, we are 631 PUCT petition at 2–3. affirmatively adopts Bellcore’s decision and ruling on the PUCT petition. Therefore, action on 632 Id. at 3. In the Ameritech Order, the preempts its order. The Texas Commission argues the Texas Commission’s application, a procedurally Commission held that three elements of a proposed that this action should be reviewed by the distinct but substantively identical pleading, is wireless-only overlay each violated the prohibition Commission. PUCT petition at 4. unnecessary. in section 202(a) of the Communications Act of 640 PUCT petition at 5. In its petition for 625 We note that, although SWB was the LEC 1934 against unjust or unreasonable discrimination, declaratory ruling, the Texas Commission requests proposing the originally disputed area code relief and also represented unjust and unreasonable that we declare: (1) That the refusal of the Chief, plan, SBC filed comments on the Texas practices under section 201(b). Those objectionable Network Services Division, Common Carrier Commission’s proposed plan. SWB is a subsidiary elements were: (1) Ameritech’s proposal to continue Bureau, to direct the NANP administrator to assign of SBC. assigning NPA 708 codes (the old codes) to wireline area codes to SWB for use as wireless overlays in 626 PUCT petition at 2. The Texas Office of Public carriers, while excluding paging and cellular Dallas and Houston was erroneous; (2) that the Utility Council filed a similar petition in August carriers from such assignments (the ‘‘exclusion’’ NANP administrator is directed to assign such 1995 regarding SWB’s numbering practices related proposal); (2) Ameritech’s proposal to require only codes to SWB; and (3) that the Texas Commission’s to the exhaustion of telephone numbers in the 713 paging and cellular carriers to take back from their March 13, 1996 Order directing a combination area code in Houston. The Texas Commission subscribers and return to Ameritech all 708 wireline area code split and wireless overlay in consolidated the petitions into Texas Public telephone numbers previously assigned to them, Dallas and Houston is lawful. Id. at 10. In its Utilities Commission Docket No. 14447 because while wireline carriers would not be required to do application for expedited review, it requests that similar issues were presented. so (the ‘‘take back’’ proposal); and (3) Ameritech’s we: (1) Review and reverse the Network Services 627 Id. proposal to assign all numbers from the new NPA Division’s action in its letter to the NANP 628 Id. (630) to paging and cellular carriers exclusively (the administrator; (2) order the NANP administrator to 629 Id. ‘‘segregation’’ proposal). See Ameritech Order, 10 assign the requested area codes for use as wireless FCC Rcd at 4608, 4611. 630 See Pleading Cycle Established for Comments overlays in Dallas and Houston; and (3) uphold the 633 on Public Utility Commission of Texas’ Petition for PUCT petition at 3. Texas Commission’s Order pursuant to analysis of Expedited Declaratory Ruling and Application for 634 Id. Commission precedent. PUCT application at 10. Expedited Review of Area Code Plan for Dallas and 635 PUCT petition, Attachment B. 641 PUCT petition at 5–6. Houston, Public Notice, DA 96–794 (released May 636 Id. 642 Id. at 6. Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations 47333 and customers.643 The Texas service because they allow existing Order is unreasonably strict and would Commission alleges that it weighed customers of wireless incumbents to preclude all forms of area code relief.659 different proposals offered by several retain 7-digit dialing for most calls if 303. In reply, several parties continue parties, and that, although a geographic they do not switch to a new entrant. to maintain that the Texas split was found superior to an all- Similarly, it says, current customers of Commission’s proposed prospective services overlay, neither plan alone was wireline incumbents will retain 7-digit wireless-only overlay is unlawful.660 found to be the best solution.644 For this dialing to businesses and residences in Most of these commenters contend that reason, it chose a two-step, integrated either the suburban or metropolitan an all-services overlay can be an relief plan involving a landline area, unless they switch to a new appropriate method of area code geographic split and a prospective wireless provider.651 Sprint Spectrum relief.661 wireless overlay.645 The Texas maintains that, by creating a distinction c. Discussion Commission argues that its plan permits between services offered by incumbent intra-NPA seven-digit dialing, unlike an providers and those seeking entry into 304. We conclude that the Texas all-services overlay, which would have the market using wireless technology, Commission’s wireless-only overlay required ten-digit intra-NPA dialing. the Texas Commission has created a violates our Ameritech Order on its face. Also, it says that its plan will reduce disincentive for new wireless providers It is also inconsistent with our customer confusion and provide greater to seek entry into these clarification of the Ameritech Order competitive fairness to service telecommunications markets.652 contained in this Order, wherein we providers.646 Similarly, PageNet argues that this specifically prohibit wireless-only 299. Many parties contend that the interference with customer choice, and overlays. Texas Commission’s plan violates the inhibition of wireline/wireless 305. The Texas Commission itself Commission policy as outlined in the competition, are contrary to the admits to the presence of exclusion and Ameritech Order and request its objectives stated in the Ameritech segregation in its plan.662 In the clarification.647 Still others argue that Order, and urges the Commission to Ameritech Order, we clearly indicated the plan violates section 201(b) or expressly declare the Texas that the presence of any one of the section 202(a),648 as well as section Commission’s plan prohibited.653 following elements including: (1) 251(e)(1), which confers exclusive 301. Twelve reply comments were Exclusion; (2) segregation; or (3) take- jurisdiction over numbering received. The Texas Commission back, renders a service-specific overlay administration on the Commission that contends that it had jurisdiction to issue plan unacceptable and violative of the we have not assigned to any other its order containing its proposed area Communications Act.663 Texas’ plan entity.649 Still others argue that the plan code relief plan, and the 1996 Act does features all these elements. Like the violates section 253, which provides not deprive the Texas Commission of plan proposed in the Ameritech Order, that no state requirement may prohibit that jurisdiction.654 The Texas the Texas Commission’s plan would or have the effect of prohibiting the Commission argues that the exclusion, unreasonably discriminate against ability of any entity to provide any segregation, and take-back facets of the wireless carriers. It is thus unreasonably telecommunications service.650 wireless-only overlay proposal should 300. In Sprint Spectrum’s view, for not be considered separate and 659 Id. at 12–15. example, the proposed wireless overlays independent grounds for finding an 660 See, e.g., CTIA reply at 2–3; Vanguard reply at will undermine the ability of NPA relief plan unlawful.655 The Texas 1–4; MCI reply at 3–5; ProNet reply at 1; Sprint telecommunications carriers to provide reply at 1–2. SBC states that the Texas Commission Commission maintains that we should overlays are unlawful, and argues that we should not order an alternative form of relief expressly state that service-specific overlays are per 643 Id. at 6–9. In the Ameritech Order, we stated such as an all-services overlay,656 and se unlawful. SBC reply at 1. that any area code relief plan that becomes effective that we should not find unlawful the 661 ProNet reply at 2–4; BellSouth reply at 2–6; US should strike an optimal balance among three Texas Commission’s proposed WEST reply at 1–6; SBC reply at 2–4. objectives Ameritech had identified: (1) An optimal 662 consideration of take-back of wireless The record also indicates that the plan also dialing plan for customers; (2) as minimal a burden calls for some take-back of existing wireless as feasible; and (3) an uninterrupted supply of numbers during the geographic split if numbers. The Texas Commission states that two codes and numbers. We further found that the the wireless overlays are deemed groups of wireless customers will experience take- optimal balance must assure that any burden 657 back due to the geographic split. Those with Type associated with the introduction of the new unlawful. 1 cellular and Type 1-like paging connections will numbering code falls in as evenhanded a way as 302. The Texas Public Utility Counsel experience take-back for ‘‘technical and practical possible upon all carriers and customers affected by filed reply comments in support of the implementation-related reasons. PUCT Order at 12 its introduction. Ameritech Order, 10 FCC Rcd at Texas Commission’s proposed area code n.9. In addition, the Texas Commission envisions 4611. relief plan. The Texas Public Utility that after the date on which NXX codes are 644 PUCT petition at 7. Counsel maintains that the proposed activated for the prospective wireless overlay, 645 Id. wireless carriers holding NXX codes from the prior 646 Id. wireless-only overlay is neither area codes will not be allowed to assign any 647 See, e.g., AT&T comments at 5; Century discriminatory nor unreasonable under additional numbers from those prior area codes, Cellunet comments at 3–4; Cox comments at 3–4; sections 202(a) and 201(b) of the regardless of the fill factor of the NXX codes. GTE comments at 8–14; HCTC comments at 3–10; Communications Act of 1934.658 Remaining unused numbers in those NXX codes MCI comments at 3–4; Nextel comments at 3–6; Further, the Texas Public Utility will be returned to the NPA administrator. PUCT PageNet comments at 6–10; PCIA comments at 4– Order at 6. 6; ProNet comments at 7–14; Sprint comments at 4– Counsel claims that the wireless 663 See Ameritech Order, 10 FCC Rcd at 4608. 5; Sprint Spectrum comments at 5–11; Teleport carriers’ interpretation of the Ameritech ‘‘[W]e find as a matter of law that each of these comments at 4–12; US West comments at 9–10; three Ameritech proposals violates the prohibition Vanguard comments at 2–3; SBC comments at 5– 651 Sprint Spectrum comments at 4–5 and 11–12. in the Act against unjust or unreasonable 12. 652 Id. at 12. discrimination.’’ (Emphasis added). See also id. at 648 See, e.g., AT&T comments at 5; HCTC 4611. In discussing whether Ameritech’s plan 653 PageNet comments at 6–10. See also SBC comments at 3–10; PageNet comments at 9; ProNet constituted an unjust or unreasonable practice and comments at 12–16. comments at 1; Sprint comments at 4–5; Sprint therefore violated section 201(b) of the Act, we 654 Texas Commission reply at 2–7. Spectrum comments at 6–11. stated that three facets of Ameritech’s plan—its 655 649 See, e.g., Century Cellunet comments at 4; GTE Id. at 7–8. exclusion, segregation, and take-back proposals— comments at 7; PCIA comments at 6–7; U S WEST 656 Id. at 9–10. would each impose significant competitive comments at 4–5. See also Teleport comments at 13. 657 Id. at 10–11. disadvantages on the wireless carriers, while giving 650 Sprint Spectrum comments at 4. 658 Texas Public Utility Counsel reply at 9–11. certain advantages to wireline carriers. 47334 Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations discriminatory under section 202(a) and 308. Some parties also advance b. Comments would constitute an unreasonable concerns about the Texas Commission’s 311. Some commenters raise issues practice in violation of section 201(b) of statements that, if the proposed about the proper role of the states in the Communications Act of 1934. wireless-only overlay were found to be number administration both before and Moreover, in this Order, we have unlawful, it would consider a after transfer of number administration clarified the Ameritech Order by mandatory pro-rata take-back of wireless functions to the NANP. BellSouth, for prohibiting all service-specific and numbers under the geographic split plan example, argues that we should technology-specific area code overlays. in order to balance the remaining authorize states to address additional Service-specific and technology-specific burdens of inconvenience and number administration functions until overlays do not further the federal confusion caused by the number their transfer to the NANP. Specifically, policy objectives of the NANP. They changes necessitated by a split. We do BellSouth recommends that states hinder entry into the not take action here to prevent the Texas should take active oversight in CO code telecommunications marketplace by Commission from taking back some implementation activities, including the failing to make numbering resources wireless numbers in the course of power to allow for cost recovery.665 available on an efficient, timely basis to introducing a geographic split plan. In 312. SBC expresses concern regarding telecommunications services providers. a geographic split, roughly half of the the expeditious transfer and As we describe in detail above, service- customers in the existing NPA, centralization of CO code specific overlays would provide including wireless customers, will have administration into the new NANP. In particular industry segments and groups to change their telephone numbers. We SBC’s view, such transfer is appropriate, of consumers an unfair advantage. We recognize that wireless customers may but before it can take place, all relevant have also stated that administration of need to have their equipment issues must first be fully addressed and the NANP should be technology neutral; reprogrammed to change their telephone resolved. SBC states that code service-specific overlays that deny number, and that this will administrators need local knowledge of particular carriers access to numbering inconvenience wireless customers to authorized carriers, service areas, and resources because of the technology some extent. This illustrates the fact that toll and local calling areas for the they use to provide their services are not geographic splits also have burdensome transfer to be effective. SBC asserts that, technology neutral. aspects. Our goal is to have technology- because CO code administration has 306. We find the Texas Commission’s blind area code relief that does not significant impacts on local areas in arguments in support of its proposed burden or favor a particular technology. terms of relief plans and dialing plans, wireless-only overlay unpersuasive. It Requiring approximately half of the state regulatory commissions should be argues, for example, that the wireless wireless customers and wireline included in any decision.666 In reply, overlay will extend the life span for the customers to change telephone numbers MFS, stating that the Commission area code relief plan. What extends the in a geographic split is an equitable should not ‘‘be swayed’’ by SBC’s life span of a relief plan, however, is not distribution of burdens. This is the kind singular concerns about the complexity so much the wireless overlay as the of implementation detail that is best left of CO code assignments and the need introduction of a new NPA with its 792 to the states. for state involvement, argues against any additional NXXs. This being the case, potential delay in the transfer of the Texas Commission provides no 4. Delegation of Additional Numbering numbering responsibilities.667 compelling reason for isolating a Administration Functions Similarly, WinStar, stating that such particular technology in the new NPA. a. Background delay would be contrary to the letter The Texas Commission also states that and spirit of the 1996 Act, argues there will be less confusion regarding 309. In the NANP Order, we against any delay in transferring NPA assignments, but a plan calling for transferred CO code administration to numbering administration from the overlay for one service and a split for the new NANP administrator. We stated LECs to the NANP administrator.668 another is likely to lead to increased that a ‘‘requirement that CO code 313. Some parties argue that, when customer confusion regarding NPA administration be centralized in the the new NANP administrator is assignments, because parties making NANP administrator simply transfers established, the Commission should calls would have to be aware of what the functions of developing and allow state commissions to handle the type of service the party being called proposing NPA relief plans from the current functions of the LEC, including has in order to know whether to dial the various LEC administrators to the new development of area code relief plans ten-digit number or just the last seven NANP Administrator’’ and that ‘‘[s]tate and assignment of CO codes.669 digits. The Texas Commission also regulators will continue to hold According to the Florida Commission, if argues that its plan allows for continued hearings and adopt the final NPA relief the state commissions do not decide to seven-digit dialing for intra-NPA calls, plans as they see fit.’’ 664 but we note that the same would be true handle these functions, the NANP 310. In the NPRM, we tentatively administrator should be responsible for if a geographic split for all services and 670 technologies was imposed. Although an concluded that, pursuant to section these processes. Cox, however, does all-services overlay would have required 251(e)(1), the Commission should not support delegation of CO code ten-digit intra-NPA dialing, there would authorize states to address matters assignment responsibility to the states not be discrimination based on related to implementation of new area and contends that if the Commission technology. codes, and we are doing so in this does authorize the states to perform this 307. Several parties raise concerns Order. In the NPRM, we also sought function, it should adopt specific about dialing disparity resulting from comment on whether the Commission the implementation of the Texas should authorize states or other entities 665 BellSouth comments at 20. to address any additional number 666 SBC comments at 11–13. Commission’s plan. It is these concerns 667 administration functions. We address MFS reply at 4. about dialing disparity in the context of 668 WinStar reply at 15–16. an overlay that have led us to require this issue here. 669 See, e.g., Florida Commission comments at 6– mandatory ten-digit dialing as part of 7; Indiana Commission Staff comments at 6. any all services overlay plan. 664 NANP Order, 11 FCC Rcd at 2622. 670 Florida Commission comments at 6–7. Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations 47335 policies for CO code assignment jurisdiction over numbering. We further area code relief, as distinct from requiring that such assignments be conclude that states that wish to be adopting final area code relief plans.677 made on a non-discriminatory basis.167 responsible for initiating area code relief We agree that states should be The Pennsylvania Commission states planning, a function currently authorized to initiate and plan area code that, after the new NANP administrator performed by the LECs as CO code relief. Currently, when an incumbent assumes LEC administrative administrators, may do so now and after LEC in its role as CO code administrator responsibilities, the Commission should transfer of CO code administration from predicts that NPA exhaust is imminent, allow states to continue their regulatory the LECs to the new NANP it initiates the NPA relief planning oversight role. Specifically, the administrator. Again, because of the process by holding industry meetings, Pennsylvania Commission asserts that need to avoid disruption in numbering developing an appropriate area code the Commission should delegate to state administration, we find good cause to relief plan or plans, and proposing that commissions regulatory oversight of CO make this authorization effective plan or several alternative plans for the code assignment, including local immediately pursuant to 5 U.S.C. state commission’s consideration and number portability and local dialing 553(d)(3). We decline, however, to adoption.678 Thus, state commissions do parity measures.672 delegate to the states on a permanent not initiate and develop area code relief 314. In the Indiana Commission basis oversight of CO code plans,679 but states adopt, codify or Staff’s view, we should authorize state administration. Finally, we decline to reject the final plan.680 commissions to make decisions authorize states to handle CO code 319. We conclude that states wishing regarding the implementation or assignment functions. to become responsible for initiating area changing of dialing patterns consistent 316. Currently, state commissions are code relief planning, a function with non-discriminatory and responsible for determining the number currently performed by the LECs as CO competitive guidelines, and changes in of digits that must be dialed for intra- code administrators, may do so, even dialing patterns should be incorporated NPA toll calls and inter-NPA local after transfer of CO code administration into the area code relief planning calls.676 For example, while most states from the LECs to the new NANP process. The Indiana Commission Staff require 1 plus 10-digit dialing for all administrator. We find that enabling asserts that states are in a better position intra-NPA toll calls, California and New states to initiate and develop area code to determine what impact changes in Jersey permit such toll calls to be relief plans is generally consistent with dialing will have on the local area.673 completed with 7-digit dialing. Illinois our previous delegation of new area Conversely, Vanguard argues the requires 7-digit dialing for all intra-NPA code implementation matters to the Commission should satisfy its calls, whether local or toll. Similarly, a state commissions based on their unique Congressional mandate by establishing number of states, including the District familiarity with local circumstances. We national numbering and dialing parity of Columbia, Maryland, and parts of guidelines.674 Virginia require 10-digit dialing for all 677 Indiana Commission Staff comments at 6–7; inter-NPA local calls and permit 10- Florida Commission comments at 5. c. Discussion digit or 1 plus 10-digit dialing for all 678 See, e.g., Illinois Bell Telephone Company 315. We conclude that the states may Petition for Approval of NPA Relief Plan for 708 intra-NPA local calls. Area Code by Establishing a 630 Area Code, Order, continue to implement or change local 317. States are in the best position at No. 94–0315 (Ill. Comm. Comm’n March 20, 1995). dialing patterns subject to any future this time to determine dialing patterns 679 The process of area code relief initiation and decision by the Commission regarding because of their familiarity with local development varies by state. In most cases the whether to require uniform nationwide circumstances and customs regarding incumbent LEC (as CO code administrator) declares dialing patterns.675 The Commission that the supply of CO codes in a particular area telephone usage. For example, one state code is about to exhaust, and invites all will retain broad policy-making commission might want to allow its telecommunications entities with interests in the residents to dial 7-digits for all intra- area code at issue to meet and attempt to reach 671 Cox states that the policies should state that NPA calls, whether toll or local, consensus on a plan for area code relief. Issues carriers and states currently administering CO before the industry include whether to propose an codes are not permitted to deny codes to new whereas another state commission area code overlay or a geographic split. If the entrants, and are not permitted to levy ‘‘code might wish to require 10-digit dialing industry can agree on the proposal, it is submitted opening’’ charges to avoid imposing barriers on the for intra-NPA calls to ensure that its to the state commission for adoption. If the industry entry and expansion of new competitors. Cox residents recognize that they are making cannot agree, the incumbent LEC may submit a comments 8–9. In its reply, Cox notes that number of alternatives to the state commission from incumbent LECs have argued that there is no need a toll call rather than a local call. which to choose. for Commission intervention in the assignment of Therefore, states may continue to 680 State commissions have, however, recently CO codes. Cox argues that, in practice, despite the implement appropriate local dialing begun to reject or significantly alter LEC proposals existence of ‘‘neutral’’ CO code assignment patterns, subject to the Commission’s as area code relief has become more controversial. guidelines, significant potential for discriminating numbering administration guidelines, See, e.g., Illinois Bell Telephone Company Petition against new entrants remains. Until an impartial for Approval of NPA Relief Plan for 708 Area Code entity is responsible for assigning CO codes, Cox including the Commission’s by Establishing a 630 Area Code, Order, No. 94– contends, there is a need for specific Commission requirement in this Order of 10-digit 0315 (Ill. Comm. Comm’n March 20, 1995); rules preventing discrimination. Cox would prefer dialing for all calls within and between AirTouch V. Pacific Bell, Case 94–09–058, MCI V. that CO codes be administered by a neutral NPAs in any area where an area code Pacific Bell, Case 95–01–001, Decision No. 95–08– administrator, and believes that the possibility that 052 (Cal. Pub. Util. Comm’n August 11, 1995); a neutral administrator will lack some local overlay has been implemented. Petition of MCI Telecommunications Corp. for an knowledge does not form an insurmountable barrier 318. Two state commissions Investigation of the Practices of Southwestern Bell to a swift transition from the current regime. Cox specifically ask the Commission to Telephone Co. Regarding the Exhaustion of reply at 10–11. authorize states to perform functions Telephone Numbers in the 214 Numbering Plan 672 Pennsylvania Commission comments at 7. Area and Request for a Cease and Desist Order 673 Indiana Commission Staff comments at 7. associated with initiating and planning Against Southwestern Bell Telephone Co., Petition 674 Vanguard reply at 2–3. of the Office of the Public Utility Counsel for an 675 Uniform nationwide dialing, which would 676 In every state, intra-NPA local calls can be Investigation of the Practices of Southwestern Bell require uniform dialing patterns throughout the dialed using 7-digits, while all inter-NPA calls Telephone Co. Regarding the Exhaustion of United States, was raised in the NANP NPRM, require 1 plus 10-digit dialing. For a list of standard Telephone Numbers in the 713 Numbering Plan Docket No. 92–237, 9 FCC Rcd 2068, 2075 (1994), and permissible dialing patterns in each state, see Area and Request for a Cease and Desist Order 59 FR 24103 (April 4, 1994), but was not addressed North American Numbering Plan, Numbering Plan Against Southwestern Bell Telephone Co., Order on in the NANP Order and remains unaddressed by the Area Codes 1996 Update, Bellcore (January 1996) at Rehearing, Docket No. 14447 (Tex. Pub. Util. Commission. 11–16. Comm’n. April 29, 1996). 47336 Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations make this delegation, however, only to administration the NANC will have continue performing the numbering those states wishing to perform area initial oversight and dispute resolution administration functions they currently code relief initiation and development. duties, with the Commission as the final perform until such functions are We recognize that many state arbiter, provides an adequate process for transferred to the new NANP commissions may not wish to perform overseeing CO code administration.682 administrator.686 Generally, these these functions because, inter alia, the This process also guarantees state commenters contend that this is the initiation and development of area code participation in the oversight process most efficient and least disruptive relief can require specialized expertise through their representation on the solution, and that it should be and staff resources that some state NANC. implemented in the interest of commissions may not have. Those states 322. Finally, we decline to authorize numbering administration continuity. that seek to perform any or all of these states to perform CO code assignment Using this approach, NYNEX says, the functions must notify the new NANP functions as suggested by the Florida Commission can intervene and exercise administrator within 120 days of the Commission for two reasons set forth in its authority as specific future matters selection of the NANP administrator. the NANP Order.683 First, centralizing may warrant.687 AT&T states that Those states wishing to perform CO code assignment in one neutral current functions should continue until functions relating to initiation and entity will increase the efficiency of CO transferred, provided that those development of area code relief prior to code assignment because it will functions are not expanded and that the the transfer of such functions to the new preclude varying interpretations of CO Commission ensures prompt NANP administrator must notify code assignment guidelines. Consistent compliance with the NANP Order.688 promptly the entity currently application of assignment guidelines MFS supports interim delegation of performing CO code administration. will also diminish the administrative current functions, but asserts that states States should inform the entities of the burden, which can be a potential barrier should have the authority to implement specific functions upon which the state to entry, facing those carriers seeking interim changes in number wishes to take action. Area code relief codes in various states that would administration as long as their actions initiation and development functions otherwise have to associate with a are consistent with our numbering will be transferred to and performed by number of separate code assignment policy objectives.689 the new NANP administrator for those bodies rather than one. Second, a 325. The California Commission states states that do not seek to perform such centralized CO code administration that it is considering serving as CO code functions. We emphasize that, pursuant mechanism would allow the administrator until the NANC has to our decision to authorize the states to Commission and regulators from other developed its policy on numbering address matters related to the NANP member countries to keep abreast administration. It urges the Commission implementation of area code relief, all of CO code assignments and predict to allow states with unique number state commissions will continue to be potential problem areas, such as administration problems to resolve responsible for making the final exhaust, sooner than is possible under these issues in the interim.690 PacTel decision on how new area codes will be the current system. states that it has proposed a partial implemented, subject to this transfer of CO code administration to Commission’s guidelines. 5. Delegation of Existing Numbering the California Commission or a third 320. While we authorize states to Administration Functions Prior to party. In the alternative, it says, the resolve specific matters related to Transfer California Commission could serve as initiation and development of area code a. Background an interim CO code administrator until relief plans, we do not delegate the task 323. Prior to the enactment of the the NANC completes its work, or until of overall number allocation, whether 1996 Act, Bellcore, as the NANP the California Commission selects a for NPA codes or CO codes. To do so Administrator, the incumbent LECs, as permanent administrator. In PacTel’s would vest in fifty-one separate central office code administrators, and view, these options are consistent with commissions oversight of functions that the states performed the majority of our proposal to permit the LECs, we have already decided to centralize in functions related to the administration Bellcore, and the states to continue the new NANPA. A nationwide, of numbers.684 In the NPRM, the performing each of their respective uniform system of numbering, Commission tentatively concluded that necessarily including allocation of NPA 686 it should authorize Bellcore, the See, e.g., MFS comments at 9; ACSI comments and CO code resources, is essential to at 13; Ameritech comments at 24; AT&T comments incumbent LECs and the states to efficient delivery of telecommunications at 12; Bell Atlantic comments at 9; BellSouth 681 continue performing each of their comments at 20; District of Columbia Commission services in the United States. comments at 3; Florida Commission comments at 6; 321. With specific regard to CO code functions related to the administration of numbers as they existed prior to GTE comments at 30; NYNEX comments at 18–19; allocation, two BOCs and one state Pennsylvania Commission comments 6–7; PacTel commission have asked us to delegate enactment of the 1996 Act until such comments at 25; Texas Commission comments at 6; oversight of this function to the states functions are transferred to the new SBC comments at 9. 687 on a permanent basis. We decline. In NANP administrator pursuant to the NYNEX comments at 18–19. NYNEX asserts NANP Order.685 We address this issue that we should reject arguments in favor of addition to the problems noted in the implementation of an interim arrangement so that preceding paragraph, we are concerned here. incumbent LECs no longer have responsibility for that such an arrangement could b. Comments NXX code administration. Incumbent LECs complicate and increase the NANP currently assign the NXXs according to industry 324. Several commenters agree with standards, and under Commission oversight, administrator’s workload, and could our tentative conclusion to authorize NYNEX notes. Therefore, there is no need for a also lead to inconsistent application of short-lived transfer of the responsibilities to another Bellcore, the LECs, and states to CO code assignment guidelines. The party. oversight and dispute resolution process 688 AT&T comments at 12. 682 See NANP Order, 11 FCC Rcd at 2605–2610. 689 established in the NANP Order, By way of example, MFS notes that California 683 Id. at 2620–2623. is considering sharing CO code assignment with whereby for the U.S. portions of NANP 684 For a discussion of NANP administration LECs until that function is transferred to the NANP functions, see NANP Order, 11 FCC Rcd at 2595. administrator. MFS comments at 9. 681 Ameritech Order, 10 FCC Rcd at 4602. 685 NPRM at para. 258. 690 California Commission comments at 7–8. Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations 47337 functions related to number assignments have not been transferred transferred to the new NANP administration until those functions are to a neutral party.696 Similarly, several administrator. transferred to the new entity.691 PacTel commenters argue in CC Docket No. 95– 330. Some commenters argue that we asserts that California’s plan to share 185 that many incumbent LECs are should not authorize Bellcore and the code assignment functions between charging paging carriers and other incumbent LECs to perform numbering PacTel and the California Commission CMRS providers discriminatory fees for administration functions on a until the transfer to the new NANP activating CO codes, as well as transitional basis because continued administrator should be identified as a unreasonable and discriminatory administration of numbers by these ‘‘safe harbor’’ under the Act.692 recurring monthly charges for blocks of entities, which are not neutral 326. Other commenters oppose the numbers.697 administrators, will permit Commission’s proposal to authorize discriminatory treatment of the Bellcore, the incumbent LECs, and the c. Discussion incumbents’ competitors with respect to states to continue performing those 328. Until such functions are access to number resources. While we numbering administration functions transferred to the new NANP recognize these concerns, we see no they performed prior to enactment of administrator, we authorize Bellcore alternative to the action we take here. section 251(e)(1) on an interim basis and the incumbent LECs to continue Transfer of numbering administration until such functions are transferred to performing the number administration functions will be a complex task, one the new NANP administrator.693 They functions they performed prior to the that cannot be accomplished express concern about the appearance of enactment of the 1996 Act. Again, immediately even on transitional basis. incumbent LEC dominance and because of the need to avoid disruption The Commission, for example, does not discrimination in the assignment and in numbering administration, we find have the resources to administer administration of scarce numbering that there is good cause to make these numbers on a day-to-day basis. resources. The Indiana Commission authorizations effective immediately 331. In this regard, we note that a Staff recommends that area code pursuant to 5 U.S.C. 553(d)(3). We also proposal has been made to the planning and implementation be conclude that any incumbent LEC California Commission to transfer CO removed from the responsibility of the charging competing carriers fees for code administration to the California LECs in favor of state commissions. In assignment of CO codes may do so only Commission or a third party or, in the its view, delegating the planning and if it charges the same fee to all carriers, alternative, to have the California implementation process to state including itself and its affiliates. Commission serve as the interim CO commissions will foster a ‘‘more 329. Numbering administration is a code administrator until the NANC competitive spirit’’ among the industry. complex task that Bellcore, the completes its work or until the The Indiana Commission Staff envisions incumbent LECs, and, to some extent, California Commission selects a that state commissions could obtain the states have been performing for over permanent administrator.698 We periodic reports from the present a decade. It is crucial that efficient and conclude that the record does not incumbent LEC administrator as well as effective administration of numbers support allowing states to change the Bellcore on projected exhaust dates for continues as the local market opens to way CO code administration is area codes.694 Sprint states that, as long competition. This delegation is the most performed during the transition to the as Bellcore and the LECs serve as NANP practicable way that numbering new NANP administrator. Uniform CO and CO code administrators, they administration can continue without code administration is critical to should be required to apply identical disruption. During the transition period, efficient operation of the public standards and procedures for processing those parties with experience should switched network for proper delivery of all numbering requests, irrespective of continue to perform the administrative telecommunications services. The the identity of the party submitting the functions that they have become transfer of CO code administration to request.695 uniquely equipped to handle. Thus, we the states pending the transition to the 327. Cox recommends that, in the authorize Bellcore to continue to new NANP administrator would not event the Commission authorizes the perform its functions as the North foster that consistency because states state commissions to handle CO American Numbering Plan wishing to assume such responsibilities assignment, such assignment must be Administrator in the same manner it did would lack the necessary experience to made on a nondiscriminatory basis, and at the time of enactment of the 1996 Act. perform them with speed and accuracy. states or the carriers currently We also allow the incumbent LECs to The California Commission does not administering the CO codes should not continue to perform the CO code refute this persuasively. We therefore be permitted to deny codes to new administration functions that they urge parties wishing to alter the entrants or to levy ‘‘code opening’’ performed at the time of enactment of administration of certain numbers or to charges. In Cox’s view, the Commission the 1996 Act. Finally, we allow the change the assignment of should adopt specific CO code states, if they performed any number responsibilities for administering guidelines because: (a) There is administration functions prior to numbers pending transfer of these evidence of continued discrimination in enactment of the 1996 Act, to continue functions to the new NANP CO code assignment; and (b) without to do so until such functions are administrator to raise these issues with Commission guidance, states will the Commission on a case-by-case basis develop inconsistent regimes. Cox notes 696 Cox comments at 7–9. in separate proceedings. In their filings, that Commission action is especially 697 With regard to the specific issue of paging these parties should state who would important here because CO code carriers being charged recurring monthly fees for bear the cost of a temporary delegation blocks of numbers, it is necessary to incorporate the record from CC Docket No. 95–185, In the Matter and how such a delegation could be 691 PacTel comments at 25. of Interconnection Between Local Exchange Carriers implemented without confusion to 692 PacTel reply at 28. and Commercial Mobile Radio Service Providers. carriers and customers. 693 See, e.g., CTIA comments at 5; Indiana See, e.g., AirTouch Communications comments, CC 332. Some commenters have Commission Staff comments at 6; NCTA reply at 10; Docket No. 95–185, at 22 n.22; Arch Teleport comments at 4. Communications Group comments, CC Docket No. expressed concern that numbering 694 Indiana Commission Staff comments at 6. 95–185, at 7–8, 15, 23–24; PageNet comments, CC 695 Sprint comments at 14. Docket No. 95–185, at 22 and App. C. 698 California Commission comments at 7–8. 47338 Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations administration will be performed in a competitive disadvantage if they alone impartial numbering administrator be discriminatory and anticompetitive could be charged discriminatory code recovered through contributions by all manner as long as interested parties activation fees. For the reasons stated communications providers; (2) exercise these functions. For this reason, above, we explicitly forbid incumbent concluded that the gross revenues of some commenters urge the Commission LECs from assessing unjust, each communications provider will be to adopt guidelines for CO code discriminatory, or unreasonable charges used to compute each provider’s administration with which the for activating CO codes on any carrier or contribution to the new numbering incumbent LECs must comply prior to group of carriers. To the extent that administrator; and (3) concluded that transfer of CO code administration to a recurring per-number charges represent the NANC will address the details new NANP administrator. Specifically, charges for interconnection, they are concerning recovery of the NANP they ask the Commission to prohibit governed by the principles set out in the administration costs.703 In the NPRM, incumbent LECs from levying disparate First Report and Order in this we found that we did not need to take ‘‘code opening’’ fees on different proceeding. Moreover, the Commission further action because the Commission carriers. We conclude that charging has already stated that telephone had already determined that cost different ‘‘code opening’’ fees for companies may not impose recurring recovery for numbering administration different providers or categories of charges solely for the use of numbers.701 arrangements must be borne by all providers of telephone exchange service 334. We emphasize that incumbent telecommunications carriers on a constitutes discriminatory access to LEC attempts to delay or deny CO code competitively neutral basis.704 telephone numbers and therefore assignments for competing providers of 2. Comments violates section 251(b)(3)’s requirement telephone exchange service would of nondiscrimination. Charging different violate section 251(b)(3), where 337. Several parties believe that the ‘‘code opening’’ fees for different applicable, section 202(a), and the Commission should take further action providers or categories of providers of Commission’s numbering with regard to cost recovery for any telecommunications service (not administration guidelines found, inter numbering administration.705 BellSouth just telephone exchange service) also alia, in the Ameritech Order, the NANP states that, states should have the power violates section 202(a)’s prohibition of Order, and this Order. The Commission to authorize cost recovery in unreasonable discrimination and also expects the incumbent LECs to comply conjunction with oversight of central constitutes an ‘‘unjust practice’’ and strictly with those guidelines and act in office code implementation activities, ‘‘unjust charge’’ under section 201(b).699 an evenhanded manner as long as they until transfer of numbering Further, it is inconsistent with the retain their number administration administration to the NANP.706 principle stated in section 251(e)(1), functions. Specifically, incumbent LECs 338. Telecommunications Resellers which states that numbers are to be should apply identical standards and Association urges us to reconsider the available on an equitable basis. procedures for processing all numbering assessment that the costs associated Incumbent LECs have control over CO requests, regardless of the identity of the with the administration of codes, a crucial resource for any party making the request. telecommunications numbering should competitor attempting to enter the 335. Indeed, our delegation of matters be borne by telecommunications carriers telecommunications market; incumbent related to numbering administration on a competitively neutral basis. It LECs must therefore treat other carriers during the transition to a new NANP asserts that reliance upon gross as the incumbent LECs would treat administrator is generally governed by revenues would result in a double or themselves. To ensure that numbering the Commission’s existing objectives greater recovery from resale carriers and 707 administration does not become a and guidelines related to number their customers. barrier to competition in the administration as well as those 339. Similarly, NCTA urges us to telecommunications marketplace prior enumerated in this proceeding. We will require that companies providing to the transfer of NANP administration monitor closely the actions of Bellcore telecommunications services in addition functions to a neutral number and the LECs with respect to numbering to other services fund NANP administrator, we conclude that any administration to ensure that they administration based on a percentage of incumbent LEC charging competing perform their tasks impartially and their gross telecommunications carriers fees for assignment of CO codes expeditiously until such tasks are revenues, and not their revenues from may only do so if the incumbent LEC transferred. other services. Otherwise, NCTA argues, charges one uniform fee for all carriers, diversified companies that have including itself or its affiliates. C. Cost Recovery for Numbering relatively little need for NXXs but large 333. We are explicitly extending this Administration gross revenues from other sources may protection, pursuant to section 202, 1. Background have to fund a disproportionately large from discriminatory ‘‘code opening’’ share of NANP administration expenses. fees to telecommunications carriers, 336. In section 251(e)(2), Congress Also, NCTA notes that the 1996 Act such as paging carriers, that are not mandates that ‘‘[t]he cost of establishing requires ‘‘telecommunications carriers’’ providers of telephone exchange service telecommunications numbering to contribute to cost recovery for or telephone toll service, and therefore administration arrangements and number administration, but that the are not covered by Section 251(b)(3).700 number portability shall be borne by all NANP Order requires recovery from all Paging carriers are increasingly telecommunications carriers on a ‘‘communications providers.’’ NCTA competitively neutral basis as requests clarification that only competing with other CMRS providers, 702 and they would be at an unfair determined by the Commission.’’ In the NANP Order, the Commission: (1) 703 NANP Order, 11 FCC Rcd at 2627–2629. 699 47 U.S.C. 251(b)(3); 47 U.S.C. 202(a). Directed that the costs of the new 704 NPRM at para. 259. 700 Paging is not ‘‘telephone exchange service’’ 705 See, e.g., BellSouth comments 20; within the meaning of the Act because it is neither 701 See The Need to Promote Competition and Telecommunications Resellers Association ‘‘intercommunicating service of the character Efficient Use of Spectrum for Radio Common comments at 10; NCTA comments at 11. ordinarily furnished by a single exchange’’ nor Carrier Services, Memorandum Opinion and Order, 706 BellSouth comments at 20. ‘‘comparable’’ to such service. See 47 U.S.C. 59 R.R.2d 1275, 1284 (1986). 707 Telecommunications Resellers Association 153(47). 702 47 U.S.C. 251(e)(2). comments at 10. Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations 47339

‘‘telecommunications carriers’’ as considered the economic impact of our governing the access to functions, defined by the 1996 Act must contribute rules in this section on small incumbent facilities and services or interconnection to cost recovery for number LECs and other small entities. We that BOCs must provide or generally administration.708 conclude that by basing contributions offer to other competing 340. Other commenters do not believe only on each contributor’s gross telecommunications carriers if the BOC that it is necessary for the Commission revenues from its provision of wants authority to provide in-region to take additional action with regard to telecommunications services (instead of, interLATA service. Pursuant to the cost recovery for numbering for example, imposing a flat fee competitive checklist, BOCs desiring to administration.709 These parties contribution on all telecommunications provide in-region interLATA generally agree that the cost recovery carriers), we more equitably apportion telecommunications services must approach taken in the NANP Order the burden of cost recovery for afford, ‘‘(u)ntil the date by which satisfies the 1996 Act’s requirements numbering administration. telecommunications numbering with respect to ensuring 343. Section 251(e)(2) requires that administration guidelines, plans or rules nondiscriminatory access to telephone the costs of telecommunications are established, non-discriminatory numbers. Several reiterate that the costs numbering administration be borne by access to telephone numbers for of number administration must be borne all telecommunications carriers on a assignment to the other carrier’s by all carriers on a competitively neutral competitively neutral basis. telephone exchange service customers basis. GTE states that the NANP Order Contributions based on gross revenues ** * (and) (a)fter that date, (must) conclusions satisfy the cost recovery would not be competitively neutral for compl(y) with such guidelines, plan or requirement of the 1996 Act, if we those carriers that purchase rules.’’ 714 In the NPRM, we stated that ensure that those conclusions are telecommunications facilities and these measures foster competition by implemented in a manner that does not services from other telecommunications ensuring telecommunications unduly favor or disadvantage any carriers because the carriers from whom numbering resources are administered particular industry segment or they purchase services or facilities will in a fair, efficient, and orderly technology.710 have included in their gross revenues, manner.715 Ameritech asks us to clarify 341. In its reply comments, PacTel and thus in their contributions to that, by complying with the NANP rejects MCI’s suggestion that costs of number administration, those revenues Order, a BOC satisfies the competitive implementing number portability earned from services and facilities sold checklist requirement of should be reduced or eliminated. In to other carriers. Therefore, to avoid nondiscriminatory access to numbers.716 PacTel’s view, interim number such an outcome, we require all MCI argues that we must ensure that the portability is an essential element of telecommunications carriers to subtract BOCs comply with section 271(c)(2)(B) achieving equitable number from their gross telecommunications and assign NXX codes in a administration and all parties that services revenues expenditures for all competitively neutral manner.717 benefit from this process should telecommunications services and contribute to full cost recovery.711 facilities that have been paid to other 2. Discussion 713 345. We decline to address section 3. Discussion telecommunications carriers. It should be noted that this requirement is 271(c)(2)(B) issues in this Order. We 342. Because of ambiguity between solely for the purpose of determining a will consider each BOC’s application to the language of the 1996 Act and carrier’s contribution to numbering enter in-region interLATA services language in the NANP Order, we are administration costs and not for any pursuant to section 271(c)(2)(B) on a persuaded that further action is other purpose, interpretation, or case by case basis, and will look necessary to meet the 1996 Act’s meaning of any other Commission rule specifically at the circumstances and requirement that cost recovery for such as those contained in parts 32, 36, business practices governing CO code number administration be borne by all 51, 64, 65, or 69 of the Commission’s administration in each applicant’s state telecommunications carriers on a rules. to determine whether the BOC has competitively neutral basis, and to complied with section 271(c)(2)(B)(ix). conform the cost recovery requirements D. Section 271 Competitive Checklist specified in the NANP Order to the 1996 Requirement That the BOCs Provide VI. Final Regulatory Flexibility Act. First, we require that: (1) Only Non-Discriminatory Access to Numbers Analysis ‘‘telecommunications carriers,’’ as for Entry Into In-region InterLATA 346. As required by Section 603 of the defined in section 3(44), be ordered to Services Regulatory Flexibility Act (RFA), 5 contribute to the costs of establishing 1. Background and Comments U.S.C. 603, an Initial Regulatory numbering administration; and (2) such Flexibility Analysis (IRFA) was 344. Section 271(c)(2)(B) contains a incorporated in the Notice of Proposed contributions shall be based only on competitive checklist of requirements each contributor’s gross revenues from Rulemaking (NPRM) in this proceeding. The Commission sought written public its provision of telecommunications that cost recovery for number portability was services.712 We note that we have addressed in the Number Portability Order. comments on the proposals in the 713 See Assessment and Collection of Regulatory NPRM, including the IRFA. The 708 NCTA comments at 11. Fees for Fiscal Year 1995, Report and Order, 10 FCC 709 See, e.g., ACSI comments at 13; ALTS Rcd 13512, at 13558–59 (1995) (Regulatory Fees 714 47 U.S.C. 271(c)(2)(B)(ix). Order). 61 FR 40155 (August 1, 1996). In the comments at 8; CTIA comments at 8; Frontier 715 NPRM at para. 251. Regulatory Fees Order, we stated that, in order to comments at 5 n.14; GCI comments at 6; GTE 716 Ameritech comments at 23. See also NYNEX comments at 31; Ohio Consumers’ Council avoid imposing a double payment burden on resellers, we would permit interexchange carriers to comments at 18. comments at 5; PacTel comments at 26. 717 MCI comments at 10. We also note that in its 710 subtract from their reported gross interstate GTE comments at 31. See also PacTel revenues any payments made to underlying carriers petition for declaratory ruling filed July 12, 1996, comments at 26. for telecommunications facilities or services. Id. TCG has asked the Commission to require, as part 711 PacTel reply at 33. Our action here is consistent with that taken in the of a BOC’s application to provide in-region 712 47 U.S.C. 251(e)(2) also requires that the cost Regulatory Fees Order. We note that the gross interLATA services pursuant to section 271, a of establishing telecommunications number telecommunications services revenues referenced in demonstration that numbering resources are portability shall be borne by all telecommunications this discussion are not limited to gross interstate available to competing local carriers. See supra carriers on a competitively neutral basis. We note revenues. n.616. 47340 Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations

Commission’s Final Regulatory significant impact on a substantial 2. Other Issues Flexibility Analysis (FRFA) in this number of small businesses as defined 352. We have found incumbent LECs Order conforms to the RFA, as amended by section 601(3) of the RFA. The to be ‘‘dominant in their field of by the Contract With America Commission stated that its regulatory operations’’ since the early 1980’s and Advancement Act of 1996, (CWAAA), flexibility analysis was inapplicable to consequently have consistently since Public Law No. 104–121, 110 Stat. 847 incumbent LECs because such entities that time certified under the RFA 726 that 718 (1996). are dominant in their field of operation. incumbent LECs are not subject to A. Need for and Purpose of This Action The Commission noted, however, that it regulatory flexibility analyses because would take appropriate steps to ensure they are not small businesses.727 We 347. The Commission, in compliance that special circumstances of smaller have made similar determinations in with section 251(d)(1), promulgates the incumbent LECs are carefully other areas.728 We recognize the SBA’s rules in this Order to ensure the prompt considered in our rulemaking. Finally, special role and expertise with regard to implementation of section 251, which is the IRFA solicited comment on the RFA, and intend to continue to the local competition provision. alternatives to our proposed rules that consult with the SBA to ensure that the Congress sought to establish through the would minimize the impact on small Commission is fully implementing the 1996 Act ‘‘a pro-competitive, de- entities consistent with the objectives of RFA. Although we are not fully regulatory national policy framework’’ this proceeding. persuaded on the basis of this record for the United States that our prior practice has been telecommunications industry.719 Three 1. Treatment of Small LECs incorrect, in light of the special principal goals of the concerns raised by the SBA, the Rural telecommunications provisions of the 350. Comments. The Small Business Tel. Coalition, and CompTel in this 1996 Act are: (1) Opening the local Administration (SBA), Rural Tel. proceeding, we will, nevertheless, exchange and exchange access markets Coalition, and CompTel maintain that include small incumbent LECs in this to competition; (2) promoting increased the Commission violated the RFA when FRFA to remove any possible issue of competition in telecommunications it sought to exclude incumbent LECs RFA compliance. We, therefore, need markets that already are open to from regulatory flexibility consideration not address directly the Rural Tel. competition, including, particularly, the without first consulting the SBA to Coalition’s arguments that incumbent long distance services market; and (3) establish a definition of ‘‘small 729 business.’’ 722 Rural Tel. Coalition and LECs are not dominant. reforming our system of universal 353. Comments. Parties raised several CompTel also argue that the service so that universal service is other issues in response to the Commission failed to explain its preserved and advanced as the local Commission’s IRFA in the NPRM. The statement that ‘‘incumbent LECs are exchange and exchange access markets SBA and CompTel contend that dominant in their field’’ or how that move from monopoly to competition. commenters should not be required to 348. The rules adopted in this Order finding was reached.723 Rural Tel. separate their comments on the IRFA implement the first of these goals— Coalition states that the lack of such from their comments on the other issues opening the local exchange and analysis is inappropriate because raised in the NPRM.730 SBA maintains exchange access markets to competition incumbent LECs are now facing that separating RFA comments and by eliminating certain operational competition from a variety of sources, discussion from the rest of the barriers to competition. The objective of including wireline and wireless carriers. comments ‘‘isolates’’ the regulatory the rules adopted in this Order is to Rural Tel. Coalition recommends that flexibility analysis from the remainder implement as quickly and effectively as the Commission abandon its of the discussion, thereby handicapping possible the national determination that incumbent LECs are the Commission’s analysis of the impact telecommunications policies embodied dominant, and perform the regulatory of the proposed rules on small in the 1996 Act and to promote the pro- flexibility analysis for incumbent LECs businesses.731 The SBA further suggests competitive, deregulatory markets 724 having fewer than 1500 employees. that our IRFA failed to: (1) Give an envisioned by Congress.720 We are 351. Discussion. In essence, the SBA adequate description of the projected mindful of the balance that Congress and the Rural Tel. Coalition argue that reporting, recordkeeping, and other struck between this goal and its concern we exceeded our authority under the compliance requirements of the for the impact of the 1996 Act on small RFA by certifying all incumbent LECs as proposed rules, including an estimate of local exchange carriers, particularly dominant in their field of operations, the classes of small entities which will rural carriers. This balance is evidenced and therefore concluding on that basis be subject to the requirement and the in section 251(f). that they are not small businesses under professional skills necessary to prepare B. Summary of Issues Raised by Public the RFA. They contend that the such reports or records;732 and (2) Comments Made in Response to the authority to make a size determination describe significant alternatives that Initial Regulatory Flexibility Analysis rests solely with the SBA, and that by 726 349. Summary of Initial Regulatory excluding a group from the scope of See 5 U.S.C. 605(b). regulatory flexibility analysis the 727 See, e.g., Expanded Interconnection with Local Flexibility Analysis (IRFA). In the Telephone Company Facilities, 6 FCC Rcd 5809 NPRM, the Commission performed an Commission makes an unauthorized (1991); MTS and WATS Market Structure, 2 FCC 725 IRFA.721 In the IRFA, the Commission size determination. Neither the SBA Rcd 2953, 2959 (1987) (citing MTS and WATS found that the rules it proposed to adopt nor the Rural Tel. Coalition cite any Market Structure, 93 F.C.C.2d 241, 338–39 (1983)). specific authority for this latter 728 See, e.g., Implementation of Sections of the in this proceeding may have a Cable Television Consumer Protection Act of 1992: proposition. Rate Regulation, 10 FCC Rcd 7393, 7418 (1995). 60 718 Subtitle II of the CWAAA is ‘‘The Small FR 63492 (December 11, 1995). Business Regulatory Enforcement Fairness Act of 722 SBA RFA comments at 3–5; Rural Tel. 729 Rural Tel. Coalition reply at 39–40. 1996’’ (SBREFA), codified at 5 U.S.C. 601 et. seq. Coalition reply at 38–39; CompTel reply at 46. 730 SBA RFA comments at 2–3; CompTel reply at 719 S. Conf. Rep. No. 104–230, 104th Cong., 2d 723 Rural Tel. Coalition reply at 39. 46. Sess. 1 (1996). 724 Rural Tel. Coalition reply at 40. 731 Id. 720 Id. 725 SBA RFA comments at 4–5 (citing 15 U.S.C. 732 SBA RFA comments at 5–6, citing 5 U.S.C. 721 NPRM at paras. 274–287. 632(a)(2)); Rural Tel. Coalition reply at 38. 603(b)(4). Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations 47341 minimize the significant economic companies.738 The numerous general all information relating to network impact of the proposal on small entities, public comments concerning the impact design and technical standards and including exemption from coverage of of our proposal on small entities in information concerning changes to the the rule.733 SBA also asserts that none response to our notice, including network that affect interconnection of the alternatives in the NPRM are comments filed directly in response to facilities.744 This proposal allows a designed to minimize the impact of the the IRFA,739 have enabled us to prepare potential competitor, that may be a proposed rules on small businesses. this FRFA. Thus, we conclude that the small entity, to collect the information 354. The Idaho Public Utilities IRFA was sufficiently detailed to enable necessary to achieve and maintain Commission argues that the parties to comment meaningfully on the efficient interconnection. Thus, the Commission’s rules will be devised for proposed rules and, thus, for us to competitor can enter the market by large carriers and therefore will be ‘‘de prepare this FRFA. We have been relying, in part or entirely, on the facto’’ burdensome to Idaho’s working with, and will continue to work incumbent LEC’s facilities. Reduced incumbent LECs and probably to with the SBA, to ensure that both our operational entry barriers are designed potential new entrants, which may be IRFAs and FRFAs fully meet the to provide reasonable opportunities for small companies.734 Therefore, Idaho requirements of the RFA. new entrants, particularly small entities, requests that state commissions retain 357. The SBA also objects to the to enter the market by minimizing the flexibility to address the impact of our NPRM’s requirement that responses to initial investment needed to begin rules on smaller incumbent LECs. the IRFA be filed under a separate and providing service. 355. The Small Cable Business distinct heading, and proposes that we 359. In addition, we disagree with the Association (SCBA) contends that the integrate RFA comments into the body Idaho Public Utilities Commission’s Commission’s IRFA is inadequate of general comments on a rule.740 contention that the rules devised by the because it does not state that small cable Almost since the adoption of the RFA, Commission will be burdensome to the companies are among the small entities we have requested that IRFA comments majority of Idaho’s incumbent LECs. We affected by the proposed rules.735 In its be submitted under a separate and believe section 251(f) and the rules we 741 comments on the IRFA, SCBA refers to distinct heading. Neither the RFA nor have crafted provide states with its proposal that the Commission the SBA’s rules prescribe the manner in significant flexibility to ‘‘deal with the establish the following national which comments may be submitted in needs of individual companies in light 742 standards for small cable companies: (1) response to an IRFA and, in such of public interest concerns,’’ as The definition of ‘‘good faith’’ circumstances, it is well established that requested by the Idaho Commission. We negotiation; (2) the development of less an administrative agency can structure note that, pursuant to section 251(f), burdensome arbitration procedures for its proceedings in any manner that it smaller LECs may petition their state interconnection and resale; and (3) the concludes will enable it to fulfill its commissioners for suspension or 743 designation of a small company contact statutory duties. Based on our past modification of the implementation person at incumbent LECs and state practice, we find that separation of schedule for toll dialing parity commissions. The SCBA also asserts comments responsive to the IRFA established under section 251(b)(3). that the Commission must adopt facilitates our preparation of a Although we have required incumbent national standards to guide state compulsory summary of such comments LECs to continue performing their commissions in their implementation of and our responses to them, as required current functions related to the administration of numbers, this section 251(f),736 the rural telephone by the RFA. Comments on the impact of requirement will expire when company exemption. The First Report our proposed rules on small entities numbering administration is transferred and Order and its FRFA discusses have been integrated into our analysis to the new North American Number issues raised by the SCBA regarding its and consideration of the final rules. We Plan (NANP) Administrator, pursuant to proposal that the Commission establish therefore reject SBA’s argument that we Section 251(e). As incumbent LECs are national standards for certain provisions improperly required commenters to currently performing these functions of the rules that affect small cable include their comments on the IRFA in and we have received no comments companies. Accordingly, we do not a separate section. 358. We also reject SBA’s assertion from incumbent LECs objecting to this repeat those analyses in this FRFA. that none of the alternatives in the requirement, we do not consider it 356. Discussion. We disagree with the NPRM were designed to minimize the burdensome for them to continue to SBA’s assessment of our IRFA. impact of the proposed rules on small perform these tasks during the transition Although the IRFA referred only businesses and the Idaho Public period. generally to the reporting and Utilities Commission’s assertion that 360. In addition, we disagree with recordkeeping requirements imposed on our rules will be burdensome on new SCBA’s assertion that the IRFA was incumbent LECs, our Federal Register entrants. For example, we proposed that deficient because it did not identify notice set forth in detail the general incumbent LECs be required to disclose small cable operators as entities that reporting and recordkeeping would be affected by the proposed rules. requirements as part of our Paperwork 738 The IRFA in the NPRM states: ‘‘Insofar 737 47 U.S.C. 251(f). Reduction Act statement. The IRFA 739 See SBA RFA comments; Rural Tel. Coalition as the proposals in this Notice apply to also sought comments on the many reply at 38–41; Idaho Public Utilities Commission telecommunications carriers other than alternatives discussed in the body of the comments at 15; SCBA RFA comments; CompTel incumbent LECs (generally reply at 45–46. NPRM, including the statutory interexchange carriers and new LEC exemption for certain rural telephone 740 SBA RFA comments at 2. 741 See, e.g., Inquiry into the Development of entrants), they may have a significant Regulatory Policy in Regard to Direct Broadcast impact on a substantial number of small 733 SBA RFA comments at 7–8, citing 5 U.S.C. Satellites, 86 F.C.C.2d 719, 755 (1981). entities.’’ 745 The phrase ‘‘new LEC 603(c). 742 See 5 U.S.C. 603 (IRFA requirements). 734 entrants’’ clearly encompasses small Idaho Commission comments at 15. 743 See Vermont Yankee Nuclear Power Corp. v. 735 cable operators that become providers of SCBA RFA comments at 1. Natural Resources Defense Council, Inc., 435 U.S. 736 Id. at 1–2. 519, 524–25 (1978) (citing FCC v. Schreiber, 381 737 NPRM, summarized at 61 FR 18311, 18312 U.S. 279, 290 (1965) and FCC v. Pottsville 744 NPRM paras. 189–190. (April 25, 1996). Broadcasting Co., 309 U.S. 134, 138 (1940)). 745 NPRM para. 277. 47342 Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations local exchange service. The NPRM even real-time, two-way voice service that is appears to be the data that we collect identifies cable operators as potential interconnected with the public switched annually in connection with new entrants.746 Thus, the record shows network. Additional business entities Telecommunications Relay Service that we have identified small cable affected by this rulemaking include (TRS). According to our most recent operators as entities that would be providers of telephone toll service, data, 97 companies reported that they affected by the proposed rules. providers of telephone exchange were engaged in the provision of service, independent operator service interexchange services.755 Although it C. Description and Estimate of the Small providers, independent directory seems certain that some of these carriers Entities Subject to the Rules assistance providers, independent are not independently owned and 361. The RFA defines ‘‘small entity’’ directory listing providers, independent operated, or have more than 1,500 to include the definition of ‘‘small directory database managers, and employees, we are unable at this time to business concern’’ under the Small resellers of these services. These entities estimate with greater precision the Business Act, 15 U.S.C. 632.747 Under could be small business concerns. number of IXCs that would qualify as the Small Business Act, a ‘‘small 363. Consistent with our prior small business concerns under SBA’s business concern’’ is one that: (1) Is practice, we shall continue to exclude definition. Consequently, we estimate independently owned and operated; (2) small incumbent LECs from the that there are fewer than 97 small entity is not dominant in its field of operation; definition of a small entity for the IXCs that may be affected by the and (3) meets any additional criteria purpose of this FRFA. Nevertheless, as decisions and rules adopted in this established by the Small Business mentioned above, we include small Order. Administration.748 The SBA has defined incumbent LECs in our FRFA. 366. Cellular Service Providers. companies listed under Standard Accordingly, our use of the terms ‘‘small Neither the Commission nor SBA has Industrial Classification (SIC) categories entities’’ and ‘‘small businesses’’ does developed a definition of small entities 4812 (Radiotelephone not encompass ‘‘small incumbent specifically applicable to providers of Communications) 749 and 4813 LECs.’’ We use the term ‘‘small cellular services. The closest applicable (Telephone Communications, Except incumbent LECs’’ to refer to any definition under SBA rules is for Radiotelephone) to be small entities incumbent LECs that arguably might be telephone communications companies when they have fewer than 1,500 defined by SBA as ‘‘small business other than radiotelephone (wireless) employees.750 The SBA has defined concerns.’’ 753 companies. The most reliable source of companies listed under the SIC category 364. Local Exchange Carriers. Neither information regarding the number of 7379 (Business Services, not otherwise the Commission nor SBA has developed cellular service carriers nationwide of classified) to be small entities when a definition of small providers of local which we are aware appears to be the they have annual receipts of less than exchange services. The closest data that we collect annually in five million dollars.751 These standards applicable definition under SBA rules is connection with TRS. According to our also apply in determining whether an for telephone communications most recent data 789 companies entity is a small business for purposes companies other than radiotelephone reported that they were engaged in the 756 of the RFA. (wireless) companies, SIC category provision of cellular services. 362. The rules we adopt today 4813. For the purposes of revenue Although it seems certain that some of regarding dialing parity and reporting, 1,347 companies reported these carriers are not independently doing business as LECs at the end of owned and operated, or have more than nondiscriminatory access apply to all 754 LECs. The rules regarding public 1994. Although it seems certain that 1,500 employees, we are unable at this disclosure of changes to local networks some of these carriers are not time to estimate with greater precision apply to all incumbent LECs. Finally, independently owned and operated, or the number of cellular service carriers have more than 1,500 employees, we are the rules regarding numbering that would qualify as small business unable at this time to estimate with any administration impose financial concerns under SBA’s definition. more particularity the number of LECs obligations on all telecommunications Consequently, we estimate that there are that would qualify as small business carriers. These rules also affect IXCs, fewer than 789 small entity cellular concerns. Consequently, we estimate providers of cellular, broadband PCS, service carriers that may be affected by that there are fewer than 1,347 small and geographic area 800 MHz and 900 the decision and rules adopted in this incumbent LECs that may be affected by MHz specialized mobile radio services, Order. the decisions and rules adopted in this including licensees who have obtained 367. Broadband PCS Licensees. The Order. broadband PCS spectrum is divided into extended implementation 365. Interexchange Carriers. Neither authorizations in the 800 MHz or 900 six frequency blocks designated A the Commission nor SBA has developed through F. Pursuant to 47 CFR MHz SMR services, either by waiver or a definition of small entities that would under § 90.629 of the Commission’s 24.720(b), the Commission has defined apply specifically to providers of ‘‘small entity’’ in the auctions for Blocks rules,752 which may be small business interexchange services (IXCs). The C and F as a firm that had average gross concerns. However, these rules will closest applicable definition under SBA revenues of less than $40 million in the apply to SMR licensees only if they offer rules is for telephone communications three previous calendar years. This companies other than radiotelephone 746 regulation defining ‘‘small entity’’ in the NPRM para. 6. (wireless) companies, SIC category 747 See 5 U.S.C. 601(6) (incorporating by reference context of broadband PCS auctions has the definition of ‘‘small business concern’’ in 5 4813. The most reliable source of been approved by the SBA.757 The U.S.C. 632). information regarding the number of 748 See 15 U.S.C. 632(1)(a). IXCs nationwide of which we are aware 755 Id. 749 13 CFR 121.201, Standard Industrial 756 13 CFR 121.201, Standard Industrial Classification (SIC) Code 4812. 753 See 13 CFR § 121.210 (SIC 4813). Classification (SIC) Code 4812. 750 13 CFR 121.201, Standard Industrial 754 Federal Communications Commission, CCB, 757 See Implementation of Section 309(j) of the Classification (SIC) Code 4813. Industry Analysis Division, Telecommunications Communications Act—Competitive Bidding, PP 751 13 CFR 121.201, Standard Industrial Industry Revenue: TRS Fund Worksheet Data, Tbl. Docket No. 93–253, Fifth Report and Order, 9 FCC Classification (SIC) Code 7379. 21 (Average Total Telecommunications Revenue Rcd 5532, 5581–84 (1994) 59 FR 37566 (July 22, 752 47 CFR 90.629. Reported by Class of Carrier) (February 1996). 1994). Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations 47343

Commission has auctioned broadband 370. The rule adopted in this Order a definition of small entities applicable PCS licenses in Blocks A, B, and C. We applies to SMR providers in the 800 to providers of telephone toll service do not have sufficient data to determine MHz and 900 MHz bands that either and telephone exchange service. how many small businesses bid hold geographic area licenses or have According to the 1992 Census, there successfully for licenses in Blocks A obtained extended implementation were approximately 3,497 firms engaged and B. There were 90 winning bidders authorizations. We do not know how in providing telephone services, as that qualified as small entities in the many firms provide 800 MHz or 900 defined therein, for at least a year.760 Block C auction. Based on this MHz geographic area SMR service This number contains a variety of information, we conclude that the pursuant to extended implementation different categories of carriers, including number of broadband PCS licensees authorizations, nor how many of these local exchange carriers, interexchange affected by the decisions in this Order providers have annual revenues of less carriers, competitive access providers, includes, at a minimum, the 90 winning than $15 million. Since the RFA cellular carriers, mobile service carriers, bidders that qualified as small entities amendments were not in effect until the operator service providers, pay in the Block C broadband PCS auction. record in this proceeding was closed, telephone operators, PCS providers, 368. At present, no licenses have been the Commission was unable to request covered SMR providers, providers of awarded for Blocks D, E, and F of information regarding the number of telephone toll service, providers of broadband PCS spectrum. Therefore, small businesses in this category. We do telephone exchange service, and there are no small businesses currently know that one of these firms has over resellers. It seems certain that some of providing these services. A total of $15 million in revenues. We assume, for those 3,497 telephone service firms may 1,479 licenses will be awarded, purposes of our evaluations and not qualify as small businesses because however, in the D, E, and F Block conclusions in this FRFA, that all of the they are not ‘‘independently owned and broadband PCS auctions, which are remaining extended implementation operated.’’ 761 It seems reasonable to scheduled to begin on August 26, 1996. authorizations may be held by small conclude, therefore, that fewer than Eligibility for the 493 F Block licenses entities, which may be affected by the 3,497 telephone service firms are is limited to entrepreneurs with average decisions and rules adopted in this providers of telephone toll service or gross revenues of less than $125 million. Order. providers of telephone exchange service We cannot estimate the number of these 371. The Commission recently held and are small entities that may be licenses that will be won by small auctions for geographic area licenses in affected by this Order. entities, nor how many small entities the 900 MHz SMR band. There were 60 373. Independent Operator Service will win D or E Block licenses. Given winning bidders who qualified as small Providers, Independent Directory the facts that nearly all radiotelephone entities in the 900 MHz auction. Based Assistance Providers, Independent companies have fewer than 1,000 on this information, we conclude that Directory Listing Providers, and employees 758 and that no reliable the number of geographic area SMR Independent Directory Database estimate of the number of prospective D, licensees affected by the rule adopted in Managers. We were unable to obtain E, and F Block licensees can be made, this Order includes these 60 small reliable data regarding the number of we assume, for purposes of our entities. No auctions have been held for entities that provide these evaluations and conclusions in this 800 MHz geographic area SMR licenses. telecommunications services or how FRFA, that all of the licenses will be Therefore, no small entities currently many of these are small entities. The awarded to small entities, as that term hold these licenses. A total of 525 Commission has not developed a is defined by the SBA. Broadband PCS licenses will be awarded for the upper definition of small entities applicable to licensees are affected by the decisions 200 channels in the 800 MHz telecommunications service providers. and rules adopted in this Order to the geographic area SMR auction. The Therefore, the closest applicable extent that they provide telephone Commission, however, has not yet definition of a small entity providing exchange service. determined how many licenses will be telecommunications services is the 369. SMR Licensees. Pursuant to 47 awarded for the lower 230 channels in definition under SBA rules applicable to CFR 90.814(b)(1), the Commission has the 800 MHz geographic area SMR business services companies, SIC 7389, defined ‘‘small entity’’ in auctions for auction. There is no basis to estimate, which defines a small entity to be a geographic area 800 MHz and 900 MHz moreover, how many small entities business services company with annual SMR licenses as a firm that had average within the SBA definition will win receipts of less than five million dollars. gross revenues of less than $15 million these licenses. Because nearly all U.S. Census data provides that 46,289 in the three previous calendar years. radiotelephone companies have fewer firms providing business services had This definition of a ‘‘small entity’’ in the than 1,000 employees and no reliable annual receipts of 5 million dollars or 762 context of 800 MHz and 900 MHz SMR estimate of the number of prospective less. Because it seems unlikely that 759 has been approved by the SBA. 800 MHz licensees can be made, we all of the business services firms would assume, for purposes of our evaluations meet the other criteria, it seems 758 See United States Department of Commerce, and conclusions in this FRFA, that all reasonable to conclude that fewer than Bureau of the Census, Standard Industrial 46,289 firms may be small entities that Classification Manual (1992) (1992 Census) SIC of the licenses will be awarded to small Code 4812. entities, as defined by the SBA. Those might be affected by our Order. 374. Resellers. Neither the 759 See Amendment of Parts 2 and 90 of the SMR licensees that provide telephone Commission nor SBA has developed a Commission’s Rules to Provide for the Use of 200 exchange service will be affected by the Channels Outside the Designated Filing Areas in definition of small entities specifically decisions in this Order. the 896–901 MHz and the 935–940 MHz Bands applicable to resellers. The closest Allotted to the Specialized Mobile Radio Pool, PR 372. Providers of Telephone Toll Docket No. 89–583, Second Order on Service, Providers of Telephone 760 Reconsideration and Seventh Report and Order, 11 Exchange Service. Neither the See United States Department of Commerce, FCC Rcd 2639, 2693–702 (1995) 60 FR 48913 Bureau of the Census, 1992 Census of (September 21, 1995); Amendment of Part 90 of the Commission nor the SBA has developed Transportation, Communications, and Utilities; Commission’s Rules to Facilitate Future Establishment and Firm Size, at Firm Size 1–123 Development of SMR Systems in the 800 MHz Second Further Notice of Proposed Rulemaking, 11 (1995) (1992 Census). Frequency Band, PR Docket No. 93–144, First FCC Rcd 1463 (1995) 61 FR 6212 (February 16, 761 15 U.S.C. 632(a)(1). Report and Order, Eighth Report and Order, and 1996). 762 1992 Census, Table 2D, SIC Code 7389. 47344 Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations applicable SBA definition for a reseller systems, and subscription television projected reporting, recordkeeping, and is a telephone communications services. According to the Census other compliance requirements that may company, SIC category 4813. However, Bureau, there were 1,323 such cable and apply to small entities as a result of this the most reliable source of information other pay television services generating Order.770 As a part of this discussion, regarding the number of resellers less than $11 million in revenue that we mention some of the types of skills nationwide of which we are aware were in operation for at least one year that will be needed to meet the new appears to be the data that the at the end of 1992.766 The Commission requirements. We also describe the steps Commission collects annually in has developed its own definition of a taken to minimize the economic impact connection with TRS. For the purposes small cable system operator for the of our decisions on small entities, of revenue reporting, 206 companies purposes of rate regulation, which has including the significant alternatives reported doing business as resellers at been approved by SBA.767 Under the considered and rejected.771 Due to the the end of 1994.763 Although it seems Commission’s rules, a ‘‘small cable size of this Order, we set forth our certain that some of these companies are company is one serving fewer than analysis separately for individual not independently owned and operated, 400,000 subscribers nationwide.’’ Based sections of the Order, using the same or have more than 1,500 employees, we on our most recent information, we headings as were used above in the are unable at this time to estimate with estimate that there were 1,439 cable corresponding sections of the Order. greater precision the number of resellers operators that qualified as small cable 379. To the extent that any statement that would qualify as small entities or system operators at the end of 1995. contained in this FRFA is perceived as small incumbent LEC concerns under Since then, some of those companies creating ambiguity with respect to our SBA’s definition. Consequently, we may have grown to serve over 400,000 rules or statements made in preceding estimate that there are fewer than 206 subscribers, and others may have been sections of this Order, the rules and small entity resellers that may be involved in transactions that caused statements set forth in those preceding affected by the decisions and rules them to be combined with the other sections shall be controlling. adopted in this Order. cable operators. Consequently, we 380. Dialing Parity Requirements. The 375. Telephone Companies. U.S. estimate that there are fewer than 1,439 dialing parity provisions of section Census data provides that, at the end of small entity cable companies that may 251(b)(3) entitle customers to choose 1992, there were 3,497 firms engaged in be affected by the decisions and rules different carriers for their local providing telephone services, as defined adopted in this Order. exchange, intraLATA toll, and therein, for at least a year.764 This 377. The Communications Act of 1934 interLATA toll services without the number contains a variety of different also contains a definition of a small burden of dialing access codes. Each categories of carriers, including local cable system operator, which is ‘‘a cable LEC is required to provide dialing parity exchange carriers, interexchange operator that, directly or through an to providers of telephone exchange and carriers, competitive access providers, affiliate, serves in the aggregate fewer telephone toll service with respect to all cellular carriers, mobile service, than 1 percent of all subscribers in the telecommunications services that carriers, operator service providers, pay United States and is not affiliated with require dialing to route a call. This telephone operators, PCS providers, any entity or entities whose gross obligation encompasses international, covered SMR providers, providers of annual revenues in the aggregate exceed interstate, intrastate, local and toll telephone toll service, providers of $250,000,000.’’ 768 There were services. telephone exchange service, and 63,196,310 basic cable subscribers at the 381. Summary of Projected Reporting, resellers. It seems certain that some of end of 1995, and 1,450 cable system Recordkeeping and Other Compliance those 3,497 telephone service firms may operators serving fewer than 1 percent Requirements. In order to comply with not qualify as small businesses because (631,960) of subscribers.769 Although it the guidelines and minimum federal they are not ‘‘independently owned and seems certain that some of these cable standards established in this Order, operated.’’ 765 It seems reasonable to system operators are affiliated with each LEC must implement toll dialing conclude, therefore, that fewer than entities whose gross annual revenues parity utilizing the ‘‘full 2–PIC’’ 3,497 telephone service firms are exceed $250,000,000, we are unable at presubscription method and following telephone companies and small entities this time to estimate with greater the mandated timetable for that may be affected by this Order. precision the number of cable systems implementation of toll dialing parity. 376. Cable System Operators. SBA has operators that would qualify as small Although no timetable was adopted for developed a definition of small entities cable operators under the definition in implementing local dialing parity it is for cable and other pay television the Communications Act of 1934. expected that it will be achieved services, which includes all such through LECs’ compliance with other companies generating less than $11 D. Summary of Projected Reporting, section 251 requirements. LECs may million in revenues annually. This Recordkeeping and Other Compliance recover the incremental costs of definition includes cable systems Requirements and Their Effect on Small implementing local and toll dialing operators, closed circuit television Businesses and Steps Taken to parity such as the costs of dialing parity- services, direct broadcast satellite Minimize the Significant Economic specific switch software, hardware, services, multipoint distribution Impact on Small Entities and signalling system upgrades and systems, satellite master antenna Alternatives Considered necessary consumer education. These 378. Structure of the Analysis. In this costs will be recovered from all 763 Federal Communications Commission, CCB, section of the FRFA, we analyze the providers of telephone exchange service Industry Analysis Division, Telecommunications and telephone toll service in the area Industry Revenue: TRS Fund Worksheet Data, Tbl. 766 21 (Average Total Telecommunications Revenue 1992 Census, supra, at Firm Size 1–123. served by the LEC, including the LEC, Reported by Class of Carrier) (February 1996). 767 Small Bus. Admin., 13 CFR part 121—Small through the use of a competitively- 764 See United States Department of Commerce, Business Size Regulations, Proposed Rules, 60 FR neutral allocator established by each 57982, 57988 (November 24, 1995). Bureau of the Census, 1992 Census of state. Compliance with these Transportation, Communications, and Utilities; 768 47 U.S.C. § 543(m)(2). Establishment and Firm Size, at Firm Size 1–123 769 Paul Kagan Associates, Inc., Cable TV Investor, (1995) (1992 Census). Feb. 29, 1996 (based on figures for December 30, 770 See 5 U.S.C. 604(a)(4). 765 15 U.S.C. 632(a)(1). 1995). 771 See 5 U.S.C. 604(a)(5). Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations 47345 requirements may entail the use of Commission considers the use of the plan requiring an equal payment from engineering, technical, operational, and ‘‘multi-PIC’’ or ‘‘smart-PIC methods,’’ each entity. accounting skills. states may impose such additional 388. Nondiscriminatory Access 382. Steps Taken to Minimize the requirements only after evaluating the Provisions. Under section 251(b)(3), all Significant Economic Impact on Small technical feasibility and economic LECs are required to allow competing Entities and Small Incumbent LECs, and impact of those requirements on smaller providers of telephone exchange service Alternatives Considered. This Order LECs in their jurisdictions. and telephone toll service access to adopts broad guidelines and minimum 385. We instituted a federal toll telephone numbers, operator services, federal standards for toll dialing parity dialing parity implementation schedule directory assistance, and directory so that LECs and competing providers of rather than allowing states to implement listings that is at least equal in quality telephone toll service, many of whom their own schedules.774 This federally- to the access the LEC itself receives, will be small business entities, will not mandated plan will provide certainty without unreasonable dialing delays. be subject to an array of differing state for competitors, some of which may be LECs are required to make available to standards and timetables requiring them small business entities, seeking to competing providers operator services to research and tailor their operations to become telephone toll service providers. and directory assistance and all adjunct the unique requirements of each state. Both LECs and competing providers of features necessary for the use of these 383. First, we required all LECs to telephone toll service will be able to services. implement toll dialing parity based on 389. Summary of Projected Reporting, 772 develop business plans and advertising LATA boundaries. Non-BOC LECs, strategies based upon specific timelines. Recordkeeping, and Other Compliance including many smaller LECs, that This ability to plan ahead is cost- Requirements. In order to comply with implement intraLATA and interLATA efficient and levels the playing field for the nondiscriminatory access provisions all LECs must share subscriber listing toll dialing parity may choose all seeking to participate in the whichever LATA within their state that information with their competitors in marketplace. they deem to be most appropriate to ‘‘readily accessible’’ tape or electronic define the area within which they will 386. We also concluded that a LEC formats. This information must be offer intraLATA toll dialing parity. State may not accomplish toll dialing parity provided upon request and in a timely commissions, in ruling upon such a by automatically assigning toll manner.777 In addition, each LEC must choice of LATA association, shall customers to itself, to a customer’s process all calls from competing determine whether the proposed LATA currently presubscribed interLATA or providers, including calls to the LEC’s association is in the public interest. interstate toll carrier, or to any other operator services and directory Because many smaller LECs have not carrier except when, in a state that assistance, on an equal basis as calls been subject to LATA boundary already has implemented intrastate, originating from the providing LEC.778 distinctions, we also gave states the intraLATA toll dialing parity, the LECs that refuse to comply with flexibility to take such factors into subscriber has selected the same reasonable, technically feasible requests account and to require that toll dialing interLATA and intraLATA, or interstate from competing providers for 775 parity be based on state rather than and intrastate, presubscribed carrier. ‘‘rebranding’’ of resold operator services LATA boundaries in their jurisdictions. This requirement prevents a carrier from or directory assistance are presumed to Insofar as a state determines that automatically designating itself as a toll be unlawfully restricting access to these presubscription should occur along carrier without notifying the customer services.779 Compliance with these state, rather than LATA, boundaries, we of the opportunity to choose an requests may require the use of anticipate that such a determination alternative carrier, one or more of which engineering, computer, accounting, and will assist smaller LECs, in particular, may be a small business. legal skills. by permitting those LECs to define their 387. Lastly, we implemented national 390. Steps Taken to Minimize service markets based on a geographic rules for the recovery of dialing parity Significant Economic Impact on Small distinction that is familiar to consumers. costs.776 Although it was suggested that Entities and Small Incumbent LECs, and 384. In addition, we adopted the ‘‘full these costs be borne only by new Alternatives Considered. The 2–PIC’’ nationwide presubscription entrants, and not incumbent LECs, we entitlement to access, on a method for implementing the toll determined that the network upgrades nondiscriminatory basis, to telephone dialing parity requirements.773 In necessary to achieve dialing parity numbers, operator services, directory making this decision we considered a should be recovered on a competitively- assistance and directory listings will number of methodologies, including the neutral basis. A competitively neutral benefit providers competing with ‘‘modified 2–PIC,’’ ‘‘the multi-PIC’’ and cost recovery mechanism prevents incumbent LECs. Many of these the ‘‘smart-PIC’’ methods. We incumbent LECs from imposing competitors will be small business concluded that the ‘‘modified 2–PIC’’ excessive fees upon competing entrants, entities. The requirement that LECs would limit the number of competitive some of which may be small businesses. make their operator assistance and service providers that could participate The imposition of excessive fees could directory listing services available to in the market and that the ‘‘multi-PIC’’ constitute an impediment to entry into competitors may allow those method had not yet proven to be the intraLATA toll market by small competitors to save the time and money technically and economically feasible. entities that lack extensive financial it would take to build similar As the ‘‘full 2–PIC’’ method is widely resources and could reinforce the information resources. Additionally, available and well defined, we noted marketplace dominance of established these competing providers will benefit that LECs, many of which are small LECs. A competitively-neutral cost because they will be able to offer entities, would not be forced to recovery mechanism also benefits small consumers at least the same quality of purchase and maintain an expensive, LECs that might otherwise have been operator service and directory assistance untested, and new technology. The unduly burdened by a cost allocation that is provided by the established LEC. Order provides that, until the 774 See supra para. 62. 777 See supra para. 141. 772 See supra para. 37. 775 See supra para. 81. 778 See supra para. 159. 773 See supra paras. 49–50. 776 See supra para. 92. 779 See supra paras. 128, 148. 47346 Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations

Small entities will be able to compete small businesses, that lack the resources Commission has prohibited service- with established LECs more quickly and to participate in industry forums. We specific or technology specific area code with less initial investment. Their originally postulated that public notice overlays, because they would exclude services will have an opportunity to should be provided exclusively through certain services or carriers, that may be become equally valuable and equally industry fora or industry small business entities, from the marketable to consumers. We have publications.781 Upon further existing area code and would segregate declined to support alternatives that consideration, however, we broadened their operations in a new area code.784 would have allowed LECs to degrade or the means by which an incumbent LEC If states choose to implement all-service limit access to these services, because could satisfy our public notice overlays, the Commission has required such behavior would bar competitive requirement to include two alternative that there be 10-digit dialing for all local entry into the telecommunications low-cost mechanisms—use of the calls in areas served by such overlays to services market. Internet or filing with the ensure that competition will not be 391. Network Disclosure. Pursuant to Commission.782 These additional deterred as a result of dialing section 251(c)(5) incumbent LECs are options will be beneficial to small disparity.785 Without mandatory 10-digit required to provide ‘‘reasonable public incumbent LECs because they will allow dialing, customers might find it less notice’’ of changes in their network those small LECs to meet their network attractive to switch carriers because which would affect a competing service disclosure obligations without incurring competing LECs, many of which may be provider’s performance or ability to the costs associated with attending new entrants to the market and may provide service or otherwise affect industry conferences or publishing the include small businesses, would have to carriers’ interoperability. The types of information in an industry magazine or assign their customers numbers in the changes that incumbent LECs must journal. new overlay area code. This would disclose include, but are not limited to, 394. Numbering Administration. require those customers to dial 10 digits changes that affect transmission, Section 251(e) confers upon the much more often than the incumbents’ signalling standards, call routing, Commission exclusive authority over all customers. Requiring 10-digit dialing for network configuration, electronic matters relating to the administration of all local calls avoids the potentially interfaces or data elements. numbering resources that pertain to the anti-competitive effect of all-service area 392. Summary of Projected Reporting, United States. To implement section code overlays. In addition, to advance Recordkeeping, and Other Compliance 251(e)(1) the Commission plans to competition, the Commission has Requirements. To implement this designate a North American Numbering required that where an area code disclosure requirement, this Order Plan (NANP) Administrator that will overlay is implemented, every entity imposes a new filing requirement on administer telecommunications authorized to provide local exchange incumbent LECs that plan to make numbering in the United States service in the old area code, which may changes to their networks. An equitably and impartially. Pursuant to include small businesses, must be incumbent LEC has a choice of filing 251(e)(2) the cost of establishing and assigned at least one NXX in that area certain information with the maintaining the NANP Administrator code. Commission or of filing a short will be borne by all telecommunications 397. Under the 1996 Act each certification with the Commission that carriers on a competitively neutral basis. telecommunications carrier must the equivalent information has been 395. Summary of Projected Reporting, contribute to cover the cost of disclosed elsewhere. In either case, the Recordkeeping, and Other Compliance numbering administration. Many incumbent LEC is also responsible for Requirements. The Commission has alternatives for allocating these costs maintaining the accuracy of the authorized state public utility were considered to ensure that each information. Compliance with this commissions to perform the task of carrier would contribute to a fund to requirement may require the use of implementing new area codes subject to cover the cost of numbering engineering, technical, computer, and Commission guidelines. If a state administration on a competitively legal skills. commission chooses to initiate and plan neutral basis. The contributions will be 393. Steps Taken to Minimize area code relief, it must inform the based on the carrier’s gross revenues Significant Economic Impact on Small NANP Administrator of the functions from its provision of Entities and Small Incumbent LECs, and the commission will perform. All telecommunications services reduced by Alternatives Considered. This telecommunications carriers will be all payments for telecommunications recordkeeping submission requirement required to contribute to the costs of services or facilities that are paid to should, in fact, ease the burden on establishing numbering administration. other telecommunications carriers. Such smaller entities in their endeavor to Compliance with this requirement will a competitively neutral cost allocation remain abreast of changes to the require engineering, technical, plan benefits small incumbent LECs that incumbent LEC network with which operational, and accounting skills. might have been unduly burdened by a they interconnect. In our Order, we 396. Steps Taken to Minimize cost apportionment plan requiring an authorize the use of industry forums, Significant Economic Impact on Small equal payment from each entity.786 industry publications, and the Internet, Entities and Small Incumbent LECs, and to make public disclosure of network Alternatives Considered. Although the E. Report to Congress changes and required technical Commission has authorized states to 398. The Commission shall send a information by incumbent LECs. We implement new area codes, it has copy of this Final Regulatory Flexibility believe that ‘‘this approach would build stipulated that states may not Analysis, along with this Order, in a on a voluntary practice that now exists implement them in a manner that will report to Congress pursuant to the Small in the industry and would result in unduly favor or disadvantage any Business Regulatory Enforcement broad availability of the particular industry segment or group of Fairness Act of 1996, 5 U.S.C. information.’’ 780 By making information consumers.783 Accordingly, the 801(a)(1)(A). A copy of this FRFA will broadly available, we hope to facilitate the participation of entities, such as 781 See supra para. 192. 784 See supra para. 285. 782 See supra para. 198. 785 See supra para. 286. 780 NPRM at para. 191. 783 See supra para. 281. 786 See supra para. 343. Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations 47347 also be published in the Federal 404. It is further ordered that, 47 CFR Part 52 Register. pursuant to the authority contained in Area codes, Cost recovery, Database sections 4(i), 251(e)(1), and 405 of the VII. Ordering Clauses architecture and administration, Local Communications Act of 1934, as exchange carrier, Local number Pursuant to sections 1–4, 201–209, amended, 47 U.S.C. 154(i), 251(e)(1) and portability, Long-term database 214, 218, 224, 251, 252, 303(r) and 332 405, Comcast Corporation’s Petition for methods, Numbering, of the Communications Act of 1934, as Clarification or Reconsideration of In amended, and Section 601 of the Telecommunications, Transitional the Matter of Proposed 708 Relief Plan methods. Telecommunications Act of 1996, 47 and 630 Numbering Plan Area Code by U.S.C. 151–154, 201–209, 214, 218, 224, Ameritech—Illinois, IAD File no. 94– Federal Communications Commission. 251, 252, 303(r), and 332, parts 51 and 102, Declaratory Ruling and Order, 10 William F. Caton, 52 of the Commission’s rules, 47 CFR FCC Rcd. 4596 (1995), IS DISMISSED as Acting Secretary. parts 51, 52 are amended as set forth moot. Note: This attachment will not be below. published in the Code of Federal Regulations. 400. It is further ordered that the 405. It is further ordered that, policies, rules, and requirements set pursuant to the authority contained in Attachment—List of Parties forth herein are adopted as set forth sections 4(i), 251(e)(1), and 405 of the Comments: (Filed on or Before May 20, 1996) below. Communications Act, as amended, 47 American Communications Services, Inc. 401. It is further ordered, pursuant to U.S.C. 154(i), 251(e)(1), and 405, the (ACSI) sections 416(a) and 413 of the Petition for Limited Clarification and/or Ameritech Communications Act of 1934, as Reconsideration filed by the Association for Local Telecommunications amended, 47 U.S.C. 416(a) and 413, that Pennsylvania Public Utilities Services (ALTS) the Secretary shall serve this Second Commission and the Request for AT&T Corporation (AT&T) Report and Order and Memorandum Clarification filed by the National Beehive Telephone Company, Inc. (Beehive) Association of Regulatory Utility Bell Atlantic Telephone Companies (Bell Opinion and Order on all local Atlantic) exchange carriers, as defined in section Commissioners of In the Matter of BellSouth Corporation (BellSouth) 3(26) of the Communications Act of Administration of the North American Cellular Telecommunications Industry 1934, as amended, 47 U.S.C. 153(26), Numbering Plan, CC Docket No. 92–237, Association (CTIA) that have designated in writing an agent Report and Order, 11 FCC Rcd 2588 Cincinnati Bell Telephone Company (CBT) in the District of Columbia, upon whom (1995) are hereby dismissed. Citizens Utilities Company (Citizens Utilities) service of all notices and process and all 406. It is further ordered that the relief orders, decisions, and requirements of Cox Communications, Inc. (Cox) requested in the petition for declaratory District of Columbia Public Service the Commission may be made for and ruling filed by the Texas Public Utilities Commission (District of Columbia on behalf of the local exchange carrier, Commission is denied. Commission) as required by section 413 of the Excel Telecommunications (Excel) Communications Act of 1934, as 407. It is further ordered that, Florida Public Service Commission (Florida amended, 47 U.S.C. 413. pursuant to section 5(c)(1) of the Commission) 402. It is further ordered that, Communications Act of 1934, as Frontier Corporation (Frontier) pursuant to the authority contained in amended, 47 U.S.C. 155(c)(1), authority General Communication, Inc. (GCI) section 408 of the Communications Act, is delegated to the Chief, Common General Services Administration/Department of Defense (GSA/DOD) as amended, 47 U.S.C. 408, all Carrier Bureau, to act on petitions filed by parties wishing to dispute proposed GTE Service Corporation (GTE) authorizations for state commissions, GVNW Inc./Management (GVNW) Bellcore, and local administrators, area code plans, to act on toll dialing Illinois Commerce Commission (Illinois including LECs, to perform certain parity implementation plans filed by Commission) numbering administration functions, LECs seeking to implement toll dialing Indiana Utility Regulatory Commission consistent with the terms as defined in parity, and to issue orders fixing (Indiana Commission Staff) this Order, are effective August 8, 1996. reasonable public notice periods in the Lincoln Telephone and Telegraph Company Because of the need to avoid disruption case of contested short term disclosure (Lincoln Telephone) Louisiana Public Service Commission (LPSC) in numbering administration, we find by incumbent local exchange carriers of network changes under 251(c)(5). MCI Telecommunications Corporation (MCI) that there is good cause for this action MFS Communications Company, Inc. (MFS) pursuant to 5 U.S.C. 553(d)(3). All other 408. It is further ordered that, to the Michigan Public Service Commission policies, rules, and requirements set extent that issues from CC Docket No. (Michigan Commission Staff) forth herein are effective October 7, 95–185, In the Matter of Interconnection National Cable Television Association, Inc. 1996, except for collections of Between Local Exchange Carriers and (NCTA) information subject to approval by the Commercial Mobile Service Providers, New Jersey, Staff of Board of Public Utilities Office of Management and Budget (New Jersey Commission) are resolved here, we incorporate the NEXTLINK Communications, L.L.C. (‘‘OMB’’), which are effective November relevant portions of the record in that (NEXTLINK) 15, 1996. docket pertaining to paging carriers Northern Telecom inc. (Nortel) 403. It is further ordered that, being charged fees for the opening of NYNEX Telephone Companies (NYNEX) pursuant to sections 4, 5, and 405 of the central office codes and for blocks of Office of the Ohio Consumers’ Counsel (Ohio Communications Act of 1934, as numbers. Consumers’ Counsel) amended, 47 U.S.C. 154, 155, and 405, Omnipoint Communications, Inc. In the Matter of Proposed 708 Relief List of Subjects (Omnipoint) Pacific Telesis Group (PacTel) Plan and 630 Numbering Plan Area 47 CFR Part 51 Code by Ameritech—Illinois, IAD File Paging Network, Inc. (PageNet) Pennsylvania Public Utility Commission no. 94–102, Declaratory Ruling and Collocation, Interconnection, Network (Pennsylvania Commission) Order, 10 FCC Rcd. 4596 (1995) IS elements, Pricing standard, Proxies, People of the State of California and the CLARIFIED to the extent indicated Reciprocal compensation, Resale, Public Utility Commission of the State of herein at paragraph numbers 281–293. Transport and termination. California (California Commission) 47348 Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations

Public Utilities Commission of Ohio (Ohio Parties Filing Comments in the Texas PUC customers have the ability to route Commission) Matter automatically, without the use of any Rural Telephone Coalition (Rural Tel. Comments access code, their telecommunications Coalition) AT&T to the telecommunications service SBC Communications Inc. (SBC) provider of the customer’s designation Small Cable Business Association (SCBA) BellSouth Sprint Corporation (Sprint) Century Cellunet, Inc. (Century Cellunet) from among 2 or more Telecommunications Resellers Association Competitive Telecommunications telecommunications service providers Telecommunications Carriers for Association (CompTel) (including such local exchange carrier). Competition (TCC) Cox * * * * * Teleport Communications Group Inc. GTE Information services. The term Houston Cellular Telephone Company (Teleport) ‘‘information services’’ means the Texas Public Utilities Commission (Texas (HCTC) Intelcom Group (U.S.A.), Inc. (Intelcom) offering of a capability for generating, Commission) acquiring, storing, transforming, The Western Alliance (Western Alliance) MCI Time Warner Communications Holdings, Inc. MFS processing, retrieving, utilizing, or (Time Warner) Nextel Communications, Inc. (Nextel) making available information via U S WEST, Inc. (U S WEST) PageNet telecommunications, and includes United States Telephone Association (USTA) Personal Communications Industry electronic publishing, but does not Vanguard Cellular Systems, Inc. (Vanguard) Association (PCIA) include any use of any such capability WinStar Communications, Inc. (WinStar) ProNet, Inc. (ProNet) SBC for the management, control, or Replies: (Filed on or Before June 3, 1996) Sprint Spectrum operation of a telecommunications A-Plus Network, Inc. (A-Plus) Sprint system or the management of a ACSI Teleport telecommunications service. American Electric Power Service Corp. US West * * * * * Ameritech Vanguard Local Access and Transport Area AT&T Reply Comments (LATA). A ‘‘Local Access and Transport Bell Atlantic Area’’ is a contiguous geographic area— Bell Atlantic/NYNEX Mobile BellSouth CTIA (1) Established before February 8, BellSouth 1996 by a Bell operating company such California Commission MCI Carolina Power and Light Co. Omnipoint Communications, Inc. that no exchange area includes points CBT (Omnipoint) within more than 1 metropolitan Citizens Utilities ProNet statistical area, consolidated Consolidated Edison Company of New York SBC metropolitan statistical area, or State, (Con Ed) Sprint except as expressly permitted under the Cox Teleport Texas Commission AT&T Consent Decree; or Delmarva Power and Light (Delmarva) (2) Established or modified by a Bell District of Columbia Commission Texas Office of Public Utility Counsel (Texas Public Utility Counsel) operating company after February 8, General Communication, Inc. (GCI) 1996 and approved by the Commission. GSA/DOD U S WEST GTE Service Corporation (GTE) Vanguard * * * * * Iowa Network Services, Inc., SDN Inc., and Parties Filing Comments in CC Docket No. Service provider. A ‘‘service provider’’ KIN Network, Inc. (Iowa Network Services) 95–185 is a provider of telecommunications Joint Cable Companies Arch Communications Group, Inc. services or a provider of information Koch AirTouch Communications services. MCI PageNet * * * * * MFS State. The term ‘‘state’’ includes the Minnesota Independant Equal Access Rule Changes Corporation (MIEAC) District of Columbia and the Territories Parts 51 and 52 of Title 47 of the Code and possessions. Motorola, Inc. of Federal Regulations are amended as Municipal Utilities * * * * * follows: National Exchange Carriers Association Telecommunications service. The (NECA) PART 51ÐINTERCONNECTION term ‘‘telecommunications service’’ NCTA refers to the offering of New England Electric Companies 1. The authority citation for part 51 is telecommunications for a fee directly to New Mexico Public Service Corporation revised to read as follows: the public, or to such classes of users as NEXTLINK NYNEX Authority: Sections 1–5, 7, 201–05, 207– to be effectively available directly to the Ohio Consumers’ Counsel 09, 218, 225–27, 251–54, 271, 332, 48 Stat. public, regardless of the facilities used. Ohio Edison Company 1070, as amended, 1077; 47 U.S.C. §§ 151–55, Telephone exchange service. A PacTel 157, 201–05, 207–09, 218, 225–27, 251–54, ‘‘telephone exchange service’’ is: PageNet 271, 332, unless otherwise noted. (1) A service within a telephone Puerto Rico Telephone Company 2. Section 51.5 is amended by adding exchange, or within a connected system Rural Tel. Coalition the following definitions in alphabetical of telephone exchanges within the same SBC order to read as follows: exchange area operated to furnish to Sprint subscribers intercommunicating service TCC § 51.5 Terms and definitions. of the character ordinarily furnished by Telecommunications Resellers Association Teleport * * * * * a single exchange, and which is covered U S WEST Dialing Parity. The term ‘‘dialing by the exchange service charge, or USTA parity’’ means that a person that is not (2) A comparable service provided Vanguard an affiliate of a local exchange carrier is through a system of switches, Western Alliance able to provide telecommunications transmission equipment, or other WinStar services in such a manner that facilities (or combination thereof) by Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations 47349 which a subscriber can originate and (c) A LEC may not assign (e) Notwithstanding the requirements terminate a telecommunications service. automatically a customer’s intraLATA of paragraphs (a) through (d) of this Telephone toll service. The term toll traffic to itself, to its subsidiaries or section, a LEC shall implement toll ‘‘telephone toll service’’ refers to affiliates, to the customer’s dialing parity under a state order as telephone service between stations in presubscribed interLATA or interstate described below: different exchange areas for which there toll carrier, or to any other carrier, (1) If the state issued a dialing parity is made a separate charge not included except when, in a state that already has order by December 19, 1995 requiring a in contracts with subscribers for implemented intrastate, intraLATA toll BOC to implement toll dialing parity in exchange service. dialing parity, the subscriber has advance of the dates established by Unreasonable dialing delay. For the selected the same presubscribed carrier these rules, the BOC must implement same type of calls, dialing delay is for both intraLATA and interLATA toll toll dialing parity in accordance with ‘‘unreasonable’’ when the dialing delay calls. the implementation dates established by experienced by the customer of a (d) Notwithstanding the requirements the state order. competing provider is greater than that of paragraphs (a) and (b) of this section, (2) If the state issued a dialing parity experienced by a customer of the LEC states may require that toll dialing order by August 8, 1996 requiring a LEC providing dialing parity, or parity be based on state boundaries if it that is not a BOC to implement toll nondiscriminatory access to operator deems that the provision of intrastate dialing parity in advance of the dates services or directory assistance. and interstate toll dialing parity is established by these rules, the LEC must * * * * * procompetitive and otherwise in the implement toll dialing parity in 3. A new § 51.205 is added to subpart public interest. accordance with the implementation C to read as follows: 6. A new § 51.211 is added to subpart dates established by the state order. C to read as follows: (f) For LECs that are not Bell § 51.205 Dialing parity: general. Operating Companies, the term in- A local exchange carrier (LEC) shall § 51.211 Toll dialing parity implementation region, interLATA toll service, as used schedule. provide local and toll dialing parity to in this section and § 51.213, includes competing providers of telephone (a) A LEC that does not begin the provision of toll services outside of exchange service or telephone toll providing in-region, interLATA or in- the LEC’s study area. service, with no unreasonable dialing region, interstate toll services in a state 7. A new § 51.213 is added to subpart delays. Dialing parity shall be provided before February 8, 1999, must C to read as follows: for all originating telecommunications implement intraLATA and interLATA services that require dialing to route a toll dialing parity throughout that state § 51.213 Toll dialing parity implementation plans. call. on February 8, 1999 or an earlier date 4. A new § 51.207 is added to subpart as the state may determine, consistent (a) A LEC must file a plan for C to read as follows: with section 271(e)(2)(B) of the providing intraLATA toll dialing parity Communications Act of 1934, as throughout each state in which it offers § 51.207 Local dialing parity. amended, to be in the public interest. telephone exchange service. A LEC A LEC shall permit telephone (b) A Bell Operating Company (BOC) cannot offer intraLATA toll dialing exchange service customers within a that provides in-region, interLATA toll parity within a state until the local calling area to dial the same services in a state before February 8, implementation plan has been approved number of digits to make a local 1999 shall provide intraLATA toll by the appropriate state commission or telephone call notwithstanding the dialing parity throughout that state the Commission. identity of the customer’s or the called coincident with its provision of in- (b) A LEC’s implementation plan must party’s telecommunications service region, interLATA toll services. include: provider. (c) A LEC that is not a BOC that (1) A proposal that explains how the 5. A new § 51.209 is added to subpart begins providing in-region, interLATA LEC will offer intraLATA toll dialing C read as follows: or in-region, interstate toll services in a parity for each exchange that the LEC state before August 8, 1997, shall operates in the state, in accordance with § 51.209 Toll dialing parity. implement intraLATA and interLATA the provisions of this section, and a (a) A LEC shall implement throughout toll dialing parity throughout that state proposed time schedule for each state in which it offers telephone by August 8, 1997. If the LEC is unable implementation; and exchange service intraLATA and to comply with the August 8, 1997 (2) A proposal for timely notification interLATA toll dialing parity based on implementation deadline, the LEC must of its subscribers and the methods it LATA boundaries. When a single LATA notify the Commission’s Common proposes to use to enable subscribers to covers more than one state, the LEC Carrier Bureau by May 8, 1997. In the affirmatively select an intraLATA toll shall use the implementation notification, the LEC must state its service provider. procedures that each state has approved justification for noncompliance and (3) A LEC that is not a BOC also shall for the LEC within that state’s borders. must set forth the date by which it identify the LATA with which it will (b) A LEC shall implement toll dialing proposes to implement intraLATA and associate for the purposes of providing parity through a presubscription process interLATA toll dialing parity. intraLATA and interLATA toll dialing that permits a customer to select a (d) A LEC that is not a BOC that parity under this subpart. carrier to which all designated calls on begins providing in-region, interLATA (c) A LEC must file its a customer’s line will be routed or in-region, interstate toll services in a implementation plan with the state automatically. LECs shall allow a state on or after August 8, 1997, but commission for each state in which the customer to presubscribe, at a before February 8, 1999 shall implement LEC provides telephone exchange minimum, to one telecommunications intraLATA and interLATA toll dialing service, except that if a LEC determines carrier for all interLATA toll calls and parity throughout that state no later than that a state commission has elected not to presubscribe to the same or to another the date on which it begins providing to review the plan or will not complete telecommunications carrier for all in-region, interLATA or in-region, its review in sufficient time for the LEC intraLATA toll calls. interstate toll services. to meet the toll dialing parity 47350 Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations implementation deadlines in § 51.211, day after the date on which the (b) General rule. A local exchange the LEC must file its plan with the Commission released its public notice of carrier (LEC) that provides operator Commission: the plan’s filing. services, directory assistance services or (1) No later than 180 days before the 8. A new § 51.215 is added to subpart directory listings to its customers, or date on which the LEC will begin C to read as follows: provides telephone numbers, shall providing toll dialing parity in the state, permit competing providers of or no later than 180 days before § 51.215 Dialing parity: cost recovery. telephone exchange service or telephone February 8, 1999, whichever occurs (a) A LEC may recover the toll service to have nondiscriminatory first; or incremental costs necessary for the access to that service or feature, with no (2) For LECs that begin providing in- implementation of toll dialing parity. unreasonable dialing delays. region, interLATA or in-region, The LEC must recover such costs from (c) Specific requirements. A LEC interstate toll service (see § 51.211(f)) all providers of telephone exchange subject to paragraph (b) of this section before August 8, 1997, no later than service and telephone toll service in the must also comply with the following December 5, 1996. area served by the LEC, including that requirements: (d) The Commission will release a LEC. The LEC shall use a cost recovery (1) Telephone numbers. A LEC shall public notice of any LEC mechanism established by the state. permit competing providers to have implementation plan that is filed with (b) Any cost recovery mechanism for access to telephone numbers that is the Commission under paragraph (c) of the provision of toll dialing parity identical to the access that the LEC this section. pursuant to this section that a state provides to itself. (1) The LEC’s plan will be deemed adopts must not: (2) Operator services. A LEC must approved on the fifteenth day following (1) Give one service provider an permit telephone service customers to release of the Commission’s public appreciable cost advantage over another connect to the operator services offered notice unless, no later than the service provider, when competing for a by that customer’s chosen local service fourteenth day following the release of specific subscriber (i.e., the recovery provider by dialing ‘‘0,’’ or ‘‘0’’ plus the the Commission’s public notice; either mechanism may not have a disparate desired telephone number, regardless of (i) The Common Carrier Bureau effect on the incremental costs of the identity of the customer’s local notifies the LEC that its plan will not be competing service providers seeking to telephone service provider. deemed approved on the fifteenth day; serve the same customer); or (3) Directory assistance services and or (2) Have a disparate effect on the directory listings.—(i) Access to (ii) An opposition to the plan is filed ability of competing service providers to directory assistance. A LEC shall permit with the Commission and served on the earn a normal return on their competing providers to have access to LEC that filed the plan. Such an investment. its directory assistance services so that opposition must state specific reasons 9. A new § 51.217 is added to subpart any customer of a competing provider why the LEC’s plan does not serve the C to read as follows: can obtain directory listings, except as public interest. provided in paragraph (c)(3)(iii) of this (2) If one or more oppositions are § 51.217 Nondiscriminatory access: section, on a nondiscriminatory basis, filed, the LEC that filed the plan will Telephone numbers, operator services, notwithstanding the identity of the have seven additional days (i.e., until no directory assistance services, and directory customer’s local service provider, or the listings. later than the twenty-first day following identity of the provider for the customer the release of the Commission’s public (a) Definitions. As used in this whose listing is requested. notice) within which to file a reply to section, the following definitions apply: (ii) Access to directory listings. A LEC the opposition(s) and serve it on all (1) Competing provider. A ‘‘competing shall provide directory listings to parties that filed an opposition. The provider’’ is a provider of telephone competing providers in readily response shall: exchange or telephone toll services that accessible magnetic tape or electronic (i) Include information responsive to seeks nondiscriminatory access from a formats in a timely fashion upon the allegations and concerns identified local exchange carrier (LEC) in that request. A LEC also must permit by the opposing party; and LEC’s service area. competing providers to have access to (ii) Identify possible revisions to the (2) Nondiscriminatory access. and read the information in the LEC’s plan that will address the opposing ‘‘Nondiscriminatory access’’ refers to directory assistance databases. party’s concerns. access to telephone numbers, operator (iii) Unlisted numbers. A LEC shall (3) If a LEC’s plan is opposed under services, directory assistance and not provide access to unlisted telephone paragraph (d)(1)(ii) of this section, the directory listings that is at least equal to numbers, or other information that its Common Carrier Bureau will act on the the access that the providing local customer has asked the LEC not to make plan within ninety days of the date on exchange carrier (LEC) itself receives. available. The LEC shall ensure that which the Commission released its Nondiscriminatory access includes, but access is permitted only to the same public notice. In the event the Bureau is not limited to: directory information that is available to fails to act within ninety days, the plan (i) Nondiscrimination between and its own directory assistance customers. will not go into effect pending Bureau among carriers in the rates, terms, and (iv) Adjuncts to services. Operator action. If the plan is not opposed, but it conditions of the access provided; and services and directory assistance did not go into effect on the fifteenth (ii) The ability of the competing services must be made available to day following the release of the provider to obtain access that is at least competing providers in their entirety, Commission’s public notice (see equal in quality to that of the providing including access to any adjunct features paragraph (d)(1)(i) of this section), and LEC. (e.g., rating tables or customer the Common Carrier Bureau fails to act (3) Providing local exchange carrier information databases) necessary to on the plan within ninety days of the (LEC). A ‘‘providing local exchange allow competing providers full use of date on which the Commission released carrier’’ is a local exchange carrier (LEC) these services. its public notice, the plan will be that is required to permit (d) Branding of operator services and deemed approved without further nondiscriminatory access to a directory assistance services. The Commission action on the ninety-first competing provider. refusal of a providing local exchange Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations 47351 carrier (LEC) to comply with the 12. A new § 51.325 is added to 14. A new § 51.329 is added to reasonable request of a competing subpart D to read as follows: subpart D read as follows: provider that the providing LEC rebrand its operator services and directory § 51.325 Notice of network changes: § 51.329 Notice of network changes: Public notice requirement. Methods for providing notice. assistance, or remove its brand from such services, creates a presumption (a) An incumbent local exchange (a) In providing the required notice to that the providing LEC is unlawfully carrier (‘‘LEC’’) must provide public the public of network changes, an restricting access to its operator services notice regarding any network change incumbent LEC may use one of the and directory assistance. The providing that: following methods: LEC can rebut this presumption by (1) Will affect a competing service (1) Filing a public notice with the demonstrating that it lacks the provider’s performance or ability to Commission; or capability to comply with the competing provide service; or (2) Providing public notice through provider’s request. (2) Will affect the incumbent LEC’s industry fora, industry publications, or (e) Disputes.—(1) Disputes involving interoperability with other service the carrier’s publicly accessible Internet nondiscriminatory access. In disputes providers. site. If an incumbent LEC uses any of involving nondiscriminatory access to (b) For purposes of this section, the methods specified in paragraph operator services, directory assistance interoperability means the ability of two (a)(2) of this section, it also must file a services, or directory listings, a or more facilities, or networks, to be certification with the Commission that providing LEC shall bear the burden of connected, to exchange information, includes: (i) A statement that identifies the demonstrating with specificity: and to use the information that has been (i) That it is permitting exchanged. proposed changes; (ii) A statement that public notice has nondiscriminatory access, and (c) Until public notice has been given (ii) That any disparity in access is not in accordance with §§ 51.325 through been given in compliance with caused by factors within its control. 51.335, an incumbent LEC may not §§ 51.325 through 51.335; and (iii) A statement identifying the ‘‘Factors within its control’’ include, but disclose to separate affiliates, separated location of the change information and are not limited to, physical facilities, affiliates, or unaffiliated entities describing how this information can be staffing, the ordering of supplies or (including actual or potential competing obtained. equipment, and maintenance. service providers or competitors), (b) Until the planned change is (2) Disputes involving unreasonable information about planned network implemented, an incumbent LEC must dialing delay. In disputes between changes that are subject to this section. keep the notice available for public providing local exchange carriers (LECs) (d) For the purposes of §§ 51.325 inspection, and amend the notice to and competing providers involving through 51.335, the term services means keep the information complete, accurate unreasonable dialing delay in the telecommunications services or and up-to-date. provision of access to operator services information services. (c) Specific filing requirements. and directory assistance, the burden of 13. A new § 51.327 is added to Commission filings under this section proof is on the providing LEC to subpart D to read as follows: must be made as follows: demonstrate with specificity that it is § 51.327 Notice of network changes: (1) The public notice or certification processing the calls of the competing content of notice. must be labeled with one of the provider’s customers on terms equal to (a) Public notice of planned network following titles, as appropriate: ‘‘Public that of similar calls from the providing changes must, at a minimum, include: Notice of Network Change Under Rule LEC’s own customers. (1) The carrier’s name and address; 51.329(a),’’ ‘‘Certification of Public 10. Section 51.305 is amended by (2) The name and telephone number Notice of Network Change Under Rule adding a new paragraph (g) to read as of a contact person who can supply 51.329(a),’’ ‘‘Short Term Public Notice follows: additional information regarding the Under Rule 51.333(a),’’ or ‘‘Certification § 51.305 Interconnection. planned changes; of Short Term Public Notice Under Rule * * * * * (3) The implementation date of the 51.333(a).’’ (g) An incumbent LEC shall provide planned changes; (2) Two paper copies of the to a requesting telecommunications (4) The location(s) at which the incumbent LEC’s public notice or carrier technical information about the changes will occur; certification, required under paragraph incumbent LEC’s network facilities (5) A description of the type of (a) of this section, must be sent to sufficient to allow the requesting carrier changes planned (Information provided ‘‘Secretary, Federal Communications to achieve interconnection consistent to satisfy this requirement must include, Commission, Washington, DC 20554.’’ with the requirements of this section. as applicable, but is not limited to, The date on which this filing is received 11. Section 51.307 is amended by references to technical specifications, by the Secretary is considered the adding a new paragraph (e) to read as protocols, and standards regarding official filing date. follows: transmission, signaling, routing, and (3) In addition, one paper copy and facility assignment as well as references one diskette copy must be sent to the § 51.307 Duty to provide access on an to technical standards that would be ‘‘Chief, Network Services Division, unbundled basis to network elements. applicable to any new technologies or Common Carrier Bureau, Federal * * * * * equipment, or that may otherwise affect Communications Commission, (e) An incumbent LEC shall provide interconnection); and Washington, DC 20554.’’ The diskette to a requesting telecommunications (6) A description of the reasonably copy must be on a standard 31⁄2 inch carrier technical information about the foreseeable impact of the planned diskette, formatted in IBM-compatible incumbent LEC’s network facilities changes. format to be readable by high-density sufficient to allow the requesting carrier (b) The incumbent LEC also shall floppy drives operating under MS DOS to achieve access to unbundled network follow, as necessary, procedures relating 5.X or later compatible versions, and elements consistent with the to confidential or proprietary shall be in a word-processing format requirements of this section. information contained in § 51.335. designated, from time-to-time, in public 47352 Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations notices released by the Network Commission must include a certificate details of the objector’s inability to Services Division. The diskette must be of service in addition to the information adjust its network on a timely basis: submitted in ‘‘read only’’ mode, and required by § 51.327(a) or § 51.329(a)(2), ‘‘I, (name and title), under oath and subject must be clearly labeled with the as applicable. The certificate of service to penalty for perjury, certify that I have read carrier’s name, the filing date, and an shall include: this objection, that the statements contained identification of the diskette’s contents. (1) A statement that, at least five in it are true, that there is good ground to 15. A new § 51.331 is added to business days in advance of its filing support the objection, and that it is not subpart D read as follows: with the Commission, the incumbent interposed for purposes of delay. I have appropriate authority to make this LEC served a copy of its public notice § 51.331 Notice of network changes: certification on behalf of (objector) and I timing of notice. upon each telephone exchange service agree to provide any information the provider that directly interconnects (a) An incumbent LEC shall give Commission may request to allow the with the incumbent LEC’s network; and Commission to evaluate the truthfulness and public notice of planned changes at the (2) The name and address of each validity of the statements contained in this make/buy point, as defined in paragraph such telephone exchange service objection.’’ (b) of this section, but at least 12 months provider upon which the notice was (d) Response to objections. If an before implementation, except as served. objection is filed, an incumbent LEC provided below: (b) Implementation date. The shall have until no later than the (1) If the changes can be implemented Commission will release a public notice fourteenth business day following the within twelve months of the make/buy of such short term notice filings. Short release of the Commission’s public point, public notice must be given at the term notices shall be deemed final on notice to file with the Commission a make/buy point, but at least six months the tenth business day after the release response to the objection and to serve before implementation. of the Commission’s public notice, the response on all parties that filed (2) If the changes can be implemented unless an objection is filed, pursuant to objections. An incumbent LEC’s within six months of the make/buy paragraph (c) of this section. response must: point, public notice may be given (c) Objection procedures. An (1) Provide information responsive to pursuant to the short term notice objection to an incumbent LEC’s short the allegations and concerns identified procedures provided in § 51.333. term notice may be filed by an by the objectors; (b) For purposes of this section, the information service provider or (2) State whether the implementation make/buy point is the time at which an telecommunication service provider that date(s) proposed by the objector(s) are incumbent LEC decides to make for directly interconnects with the acceptable; itself, or to procure from another entity, incumbent LEC’s network. Such (3) Indicate any specific technical any product the design of which affects objections must be filed with the assistance that the incumbent LEC is or relies on a new or changed network Commission, and served on the willing to give to the objectors; and interface. If an incumbent LEC’s incumbent LEC, no later than the ninth (4) Provide any other relevant planned changes do not require it to business day following the release of the information. make or to procure a product, then the Commission’s public notice. All (e) Resolution. If an objection is filed make/buy point is the point at which objections to an incumbent LEC’s short pursuant to paragraph (c) of this section, the incumbent LEC makes a definite term notice must: then the Chief, Network Services decision to implement a network (1) State specific reasons why the Division, Common Carrier Bureau, will change. issue an order determining a reasonable (1) For purposes of this section, a objector cannot accommodate the incumbent LEC’s changes by the date public notice period, provided however, product is any hardware or software for that if an incumbent LEC does not file use in an incumbent LEC’s network or stated in the incumbent LEC’s public notice and must indicate any specific a response within the time period in conjunction with its facilities that, allotted, or if the incumbent LEC’s when installed, could affect the technical information or other assistance required that would enable response accepts the latest compatibility of an interconnected implementation date stated by an service provider’s network, facilities or the objector to accommodate those changes; objector, then the incumbent LEC’s services with an incumbent LEC’s public notice shall be deemed amended (2) List steps the objector is taking to existing telephone network, facilities or to specify the implementation date accommodate the incumbent LEC’s services, or with any of an incumbent requested by the objector, without changes on an expedited basis; carrier’s services or capabilities. further Commission action. An (3) State the earliest possible date (not (2) For purposes of this section a incumbent LEC must amend its public to exceed six months from the date the definite decision is reached when an notice to reflect any change in the incumbent LEC gave its original public incumbent LEC determines that the applicable implementation date notice under this section) by which the change is warranted, establishes a pursuant to § 51.329(b). timetable for anticipated objector anticipates that it can 17. A new § 51.335 is added to implementation, and takes any action accommodate the incumbent LEC’s subpart D to read as follows: toward implementation of the change changes, assuming it receives the within its network. technical information or other § 51.335 Notice of network changes: 16. A new § 51.333 is added to assistance requested under paragraph confidential or proprietary information. subpart D to read as follows: (c)(1) of this section; (a) If an incumbent LEC claims that (4) Provide any other information information otherwise required to be § 51.333 Notice of network changes: short relevant to the objection; and disclosed is confidential or proprietary, term notice. (5) Provide the following affidavit, the incumbent LEC’s public notice must (a) Certificate of service. If an executed by the objector’s president, include, in addition to the information incumbent LEC wishes to provide less chief executive officer, or other identified in § 51.327(a), a statement than six months notice of planned corporate officer or official, who has that the incumbent LEC will make network changes, the public notice or appropriate authority to bind the further information available to those certification that it files with the corporation, and knowledge of the signing a nondisclosure agreement. Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations 47353

(b) Tolling the public notice period. Subpart AÐScope and Authority (e) State commission. The term ‘‘state Upon receipt by an incumbent LEC of a commission’’ means the commission, competing service provider’s request for § 52.1 Basis and purpose. board, or official (by whatever name disclosure of confidential or proprietary (a) Basis. These rules are issued designated) which under the laws of any information, the applicable public pursuant to the Communications Act of state has regulatory jurisdiction with notice period will be tolled until the 1934, as amended, 47 U.S.C. 151 et. seq. respect to intrastate operations of (b) Purpose. The purpose of these parties agree on the terms of a carriers. rules is to establish, for the United nondisclosure agreement. An incumbent (f) Telecommunications. States, requirements and conditions for ‘‘Telecommunications’’ means the LEC receiving such a request must the administration and use of amend its public notice as follows: transmission, between or among points telecommunications numbers for specified by the user, of information of (1) On the date it receives a request provision of telecommunications the user’s choosing, without change in from a competing service provider for services. the form or content of the information disclosure of confidential or proprietary as sent and received. information, to state that the notice § 52.3 General. (g) Telecommunications carrier. A period is tolled; and The Commission shall have exclusive authority over those portions of the ‘‘telecommunications carrier’’ is any (2) On the date the nondisclosure North American Numbering Plan provider of telecommunications agreement is finalized, to specify a new (NANP) that pertain to the United services, except that such term does not implementation date. States. The Commission may delegate to include aggregators of the States or other entities any portion telecommunications services (as defined PART 52ÐNUMBERING of such jurisdiction. in 47 U.S.C. 226(a)(2)). (h) Telecommunications service. The 18. The authority citation for part 52 § 52.5 Definitions. term ‘‘telecommunications service’’ is revised to read as follows: As used in this part: refers to the offering of Authority: Sec. 1, 2, 4, 5, 48 Stat. 1066, as (a) Incumbent local exchange carrier. telecommunications for a fee directly to amended; 47 U.S.C. § 151, 152, 154, 155 With respect to an area, an ‘‘incumbent the public, or to such classes of users as unless otherwise noted. Interpret or apply local exchange carrier’’ is a local to be effectively available directly to the secs. 3, 4, 201–05, 207–09, 218, 225–7, 251– exchange carrier that: public, regardless of the facilities used. 2, 271 and 332, 48 Stat. 1070, as amended, (1) On February 8, 1996, provided 1077; 47 U.S.C. 153, 154, 201–05, 207–09, telephone exchange service in such Subpart BÐAdministration 218, 225–7, 251–2, 271 and 332 unless area; and § 52.7 Definitions. otherwise noted. (2) (i) On February 8, 1996, was deemed to be a member of the exchange As used in this subpart: 19. Subpart B of part 52 is carrier association pursuant to (a) Area code or numbering plan area redesignated as subpart C and amended § 69.601(b) of this chapter (47 CFR (NPA). The term ‘‘area code or by redesignating §§ 52.1 through 52.99 69.601(b)); or numbering plan area’’ refers to the first as §§ 52.21 through 52.99; and a new (ii) Is a person or entity that, on or three digits (NXX) of a ten-digit subpart A and subpart B are added to after February 8, 1996, became a telephone number in the form NXX– part 52 to read as follows: successor or assign of a member NXX–XXXX, where N represents any described in paragraph (a)(2)(i) of this Subpart AÐScope and Authority one of the numbers 2 through 9 and X section. represents any one of the numbers 0 (b) North American Numbering Sec. through 9. 52.1 Basis and purpose. Council (NANC). The ‘‘North American Numbering Council’’ is an advisory (b) Area code relief. The term ‘‘area 52.3 General. code relief’’ refers to the process by 52.5 Definitions. committee created under the Federal Advisory Committee Act, 5 U.S.C., App which central office codes are made Subpart BÐAdministration (1988), to advise the Commission and to available when there are few or no 52.7 Definitions. make recommendations, reached unassigned central office codes 52.9 General requirements. through consensus, that foster efficient remaining in an existing area code and 52.11 North American Numbering Council. and impartial number administration. a new area code is introduced. 52.13 North American Numbering Plan (c) North American Numbering Plan (c) Central office (CO) code. The term Administrator. (NANP). The ‘‘North American ‘‘central office code’’ refers to the 52.15 Central office code administration. Numbering Plan’’ is the basic second three digits (NXX) of a ten-digit 52.17 Costs of number administration. numbering scheme for the telephone number in the form NXX– 52.19 Area code relief. telecommunications networks located in NXX–XXXX, where N represents any one of the numbers 2 through 9 and X Subpart CÐNumber Portability Anguilla, Antigua, Bahamas, Barbados, Bermuda, British Virgin Islands, represents any one of the numbers 0 52.21 Definitions. Canada, Cayman Islands, Dominica, through 9. 52.23 Deployment of long-term database Dominican Republic, Grenada, Jamaica, (d) Central office (CO) code methods for number portability by LECs. Montserrat, St. Kitts & Nevis, St. Lucia, administrator. The term ‘‘central office 52.25 Database architecture and St. Vincent, Turks & Caicos Islands, code administrator’’ refers to the entity administration. or entities responsible for managing 52.27 Deployment of transitional measures Trinidad & Tobago, and the United for number portability. States (including Puerto Rico, the U.S. central office codes in each area code. 52.29 Cost recovery for transitional Virgin Islands, Guam and the (e) North American Numbering Plan measures for number portability. Commonwealth of the Northern Mariana Administrator (NANPA). The term 52.31 Deployment of long-term database Islands). ‘‘North American Numbering Plan methods for number portability by CMRS (d) State. The term ‘‘state’’ includes Administrator’’ refers to the entity or providers. the District of Columbia and the entities responsible for managing the 52.32–52.99 [Reserved] Territories and possessions. NANP. 47354 Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations

§ 52.9 General requirements. limited to: area codes, N11 codes, competitively neutral basis to meet the (a) To ensure that telecommunications carrier identification codes (CICs), costs of establishing numbering numbers are made available on an ‘‘500’’ central office codes, ‘‘900’’central administration. equitable basis, the administration of office codes, ‘‘456’’ central office codes, (a) For each telecommunications telecommunications numbers shall, in Signalling System 7 network codes, and carrier, such contributions shall be addition to the specific requirements set Automatic Number Identification based on the gross revenues from the forth in this subpart: Integration Integers (ANI II); provision of its telecommunications (1) Facilitate entry into the (3) Assigning the numbers and codes services. telecommunications marketplace by described in paragraph (b)(2) of this (b) The contributions in paragraph (a) making telecommunications numbering section; of this section shall be based on each resources available on an efficient, (4) Maintaining and monitoring contributor’s gross revenues from its timely basis to telecommunications administrative number databases; provision of telecommunications carriers; (5) Assuming additional services reduced by all payments for (2) Not unduly favor or disfavor any telecommunications number telecommunications services and particular telecommunications industry administration activities, as assigned; facilities that have been paid to other segment or group of and telecommunications carriers. telecommunications consumers; and (6) Ensuring that any action taken § 52.19 Area code relief. (3) Not unduly favor one with respect to number administration telecommunications technology over is consistent with this part. (a) State commissions may resolve another. matters involving the introduction of (b) If the Commission delegates any § 52.15 Central office code administration. new area codes within their states. Such telecommunications numbering (a) Central Office Code matters may include, but are not limited administration functions to any State or Administration shall be performed by to: Directing whether area code relief other entity pursuant to 47 U.S.C. the NANPA, or another entity or will take the form of a geographic split, 251(e)(1), such State or entity shall entities, as designated by the an overlay area code, or a boundary perform these functions in a manner Commission. realignment; establishing new area code consistent with this part. (b) Duties of the entity or entities boundaries; establishing necessary dates performing central office code for the implementation of area code § 52.11 North American Numbering administration may include, but are not relief plans; and directing public Council. limited to: education and notification efforts The duties of the North American (1) Processing central office code regarding area code changes. Numbering Council (NANC), may assignment applications and assigning (b) State commissions may perform include, but are not limited to: such codes in a manner that is any or all functions related to initiation (a) Advising the Commission on consistent with this part; and development of area code relief policy matters relating to the (2) Accessing and maintaining central plans, so long as they act consistently administration of the NANP in the office code assignment databases; with the guidelines enumerated in this United States; (3) Contributing to the CO Code Use part, and subject to paragraph (b)(2) of (b) Making recommendations, reached Survey (COCUS), an annual survey that this section. For the purposes of this through consensus, that foster efficient describes the present and projected use paragraph, initiation and development and impartial number administration; of CO codes for each NPA in the NANP; of area code relief planning (c) Initially resolving disputes, (4) Monitoring the use of central office encompasses all functions related to the through consensus, pertaining to codes within each area code and implementation of new area codes that number administration in the United forecasting the date by which all central were performed by central office code States; office codes within that area code will administrators prior to February 8, 1996. (d) Recommending to the Commission be assigned; and Such functions may include: declaring an appropriate entity to serve as the (5) Planning for and initiating area that the area code relief planning NANPA; process should begin; convening and (e) Recommending to the Commission code relief, consistent with § 52.19. (c) Any telecommunications carrier conducting meetings to which the an appropriate mechanism for performing central office code telecommunications industry and the recovering the costs of NANP administration: public are invited on area code relief for administration in the United States, (1) Shall not charge fees for the a particular area code; and developing consistent with § 52.17; the details of a proposed area code relief (f) Carrying out the duties described assignment or use of central office codes to other telecommunications carriers, plan or plans. in § 52.25; and (1) The entity or entities designated (g) Carrying out this part as directed including paging and CMRS providers, by the Commission to serve as central by the Commission. unless the telecommunications carrier assigning the central office code charges office code administrator(s) shall initiate § 52.13 North American Numbering Plan one uniform fee for all carriers, and develop area code relief plans for Administrator. including itself and its affiliates; and each area code in each state that has not (a) The North American Numbering (2) Shall, consistent with this subpart, notified such entity or entities, pursuant Plan Administrator (NANPA) shall be apply identical standards and to paragraph (b)(2) of this section, that an independent and impartial non- procedures for processing all central the state will handle such functions. government entity. office code assignment requests, and for (2) Pursuant to paragraph (b)(1) of this (b) The duties of the NANPA shall assigning such codes, regardless of the section, a state commission must notify include, but are not limited to: identity of the telecommunications the entity or entities designated by the (1) Ensuring that the interests of all carrier making the request. Commission to serve as central office NANP member countries are code administrator(s) for its state that considered; § 52.17 Costs of number administration. such state commission intends to (2) Processing number assignment All telecommunications carriers in perform matters related to initiation and applications associated with, but not the United States shall contribute on a development of area code relief Federal Register / Vol. 61, No. 174 / Friday, September 6, 1996 / Rules and Regulations 47355 planning efforts in its state. Notification (3) An area code overlay, which geographic area covered by the overlay shall be written and shall include a occurs when a new area code is area code; and description of the specific functions the introduced to serve the same geographic (iii) No area code overlay may be state commission intends to perform. area as an existing area code, subject to implemented unless every Where the NANP Administrator serves the following conditions: telecommunications carrier, including as the central office code administrator, (i) No area code overlay may be CMRS providers, authorized to provide such notification must be made within implemented unless all central office telephone exchange service, exchange 120 days of the selection of the NANP codes in the new overlay area code are access, or paging service in that NPA 90 Administrator. assigned to those entities requesting days before introduction of the new (c) New area codes may be introduced assignment on a first-come, first-serve overlay area code, is assigned during through the use of: basis, regardless of the identity of, that 90 day period at least one central (1) A geographic area code split, technology used by, or type of service office code in the existing area code. which occurs when the geographic area provided by that entity. No group of § 52.21 [Amended] served by an area code in which there telecommunications carriers shall be are few or no central office codes left for excluded from assignment of central 20. Newly redesignated section 52.21 assignment is split into two or more office codes in the existing area code, or is amended by removing paragraph (f) geographic parts; be assigned such codes only from the and redesignating paragraphs (g) through (k) as paragraphs (f) through (j); (2) An area code boundary overlay area code, based solely on that removing (l) and redesignating realignment, which occurs when the group’s provision of a specific type of paragraphs (m) through (r) as paragraphs boundary lines between two adjacent telecommunications service or use of a (k) through (p); and removing area codes are shifted to allow the particular technology; paragraphs (s), (t), and (u) and transfer of some central office codes (ii) No area code overlay may be redesignating paragraph (v) as paragraph from an area code for which central implemented unless there exists, at the (q). office codes remain unassigned to an time of implementation, mandatory ten- area code for which few or no central digit dialing for every telephone call [FR Doc. 96–22045 Filed 9–5–96; 8:45 am] office codes are left for assignment; or within and between all area codes in the BILLING CODE 6712±01±P