Before the
Federal Communications Commission
Washington, D.C.

CC Docket No. 95-155

In the matter of:

Toll Free Service Access Codes

NOTICE OF PROPOSED RULEMAKING

Adopted: October 4, 1995 Released: October 5, 1995
Comment Date: November 1, 1995
Reply Date: November 15, 1995

By the Commission:

I. INTRODUCTION 1 

II. BACKGROUND  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

III. PETITION FOR IMMEDIATE RULEMAKING  . . . . . . . . . . . . . . . . . .  11

IV. DISCUSSION 12 
      A. Efficient Use of Toll Free Numbers . . . . . . . . . . . . . . . .  12
  1. The Communications Act . . . . . . . . . . . . . . . . . . . . . . . .  12
  2. Proposals  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  13
   a.Making Toll Free Numbers Available to 
    Subscribers Who Need and Want Them  . . . . . . . . . . . . . . . . . .  13
   b. Escrow Requirement  . . . . . . . . . . . . . . . . . . . . . . . . .  14
   c. Lag Time  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  17
   d. Personal Identification Numbers . . . . . . . . . . . . . . . . . . .  20
 B. Mechanics of Opening New Toll Free Codes  . . . . . . . . . . . . . . .  22
  1. Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  22
  2. Reservation of New Toll Free Codes . . . . . . . . . . . . . . . . . .  23
  3. Phased Introduction of New Toll Free 
   Service Access Codes . . . . . . . . . . . . . . . . . . . . . . . . . .  24
  4. Implementation Plan for Next Toll Free Code
   Beyond . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 888  26
   a. Background  . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  26
   b. Proposals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  27
  5. Tracking Toll Free Number Usage  31 
 C. Warehousing of Toll Free Numbers  . . . . . . . . . . . . . . . . . . .  32
  1. Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  32
  2. Proposals  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  33
 D. Vanity Numbers  . . . . . . . . . . . . . . . . . . . . . . . . . . . .  35
  1. Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  35
  2. Scope of Vanity Numbers 40      3. Proposals . . . . . . . . . . . . .  41
   a. Right of First Refusal  . . . . . . . . . . . . . . . . . . . . . . .  41
   b. Assignment Based on Industrial
    Classification 44      c. Miscellaneous Proposals . . . . . . . . . . .  46
  4. High Volume Numbers  . . . . . . . . . . . . . . . . . . . . . . . . .  47
 E. Toll Free Directory Assistance  . . . . . . . . . . . . . . . . . . . .  48
 F. Administration of the Service Management System . . . . . . . . . . . .  49
 G. Public Awareness and Industry Participation   . . . . . . . . . . . . .  50
 H. Circuit Breaker Model . . . . . . . . . . . . . . . . . . . . . . . . .  51
  1. Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  51
  2. Proposals  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  52
 I. Tariffs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  56

V. PAPERWORK REDUCTION ACT  . . . . . . . . . . . . . . . . . . . . . . . .  57

VI. CONCLUSION  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  58

VII. PROCEDURAL MATTERS . . . . . . . . . . . . . . . . . . . . . . . . . .  59

VIII. ORDERING CLAUSES  . . . . . . . . . . . . . . . . . . . . . . . . . .  62

2. To develop a record and implement sound policy in this area, this Notice of Proposed Rulemaking ("NPRM") seeks comment on proposals to: (1) promote the efficient use of toll free numbers; (2) foster the fair and equitable reservation and distribution of toll free numbers; (3) smooth the transition period preceding introduction of a new toll free code; (4) guard against warehousing of toll free numbers; and (5) determine how toll free vanity numbers(n4) should be treated.

4. In 1986, the Commission initiated a proceeding to address how 800 service should be handled in a competitive environment ("800 Proceeding").(n7) The conclusions reached in that proceeding shaped the 800 service market that exists today and the technology used to route 800 telephone traffic. At that time, the Regional Bell Operating Companies ("RBOCs") had begun to develop a database plan for 800 access. The Commission concluded that competition in 800 service would serve the public interest and that the implementation of the RBOC database plan would foster the development of such competition.(n8) Unlike the "NXX system" that had been implemented by the local exchange carriers ("LECs") following the divestiture of AT&T, the database system permitted toll free subscribers to change service providers without having to change their toll free numbers, making toll free numbers portable.(n9) We also concluded that AT&T should continue to offer 800 Directory Assistance using the number "1-800-555-1212" under tariff, but invited other parties to enter the market if they wished to do so.(n10)

5. The database plan proposed by the RBOCs(n11) necessitated certain modifications to the LEC networks. The Commission required the RBOCs and GTE to meet minimum database access time standards in order to avoid unreasonably long call set-up times.(n12) The LECs met these requirements by utilizing common channel signaling system 7 ("SS7") networks.(n13) The new architecture required not only that LECs have SS7 technology, but also a new administrative database system known as the Service Management System ("SMS"). The SMS is a computer system that provides a user friendly environment for RespOrgs to enter the data about 800 numbers within their control. The SMS then loads this informationinto regional LEC databases referred to as service control points ("SCPs"). The entire system is referred to as the SMS/800 database.(n14)

6. The Commission has concluded that SMS/800 access is a Title II service that must be offered pursuant to tariff.(n15) SMS/800 is administered by Database Services Management, Inc. ("DSMI"), a subsidiary of Bellcore, which, in turn, is wholly owned by the seven RBOCs. DSMI subcontracts management of the Number Administration and Service Center ("NASC"), which provides user support for the database, to Lockheed IMS. Database hardware is provided under contract by Southwestern Bell.

7. To obtain a toll free number, a subscriber must choose an entity responsible for managing that subscriber's SMS/800 record and coordinating with the service providers that will provide the subscriber's toll free service. The entity managing the subscriber records is known as a Responsible Organization ("RespOrg"), and only this RespOrg may access and modify that subscriber's record in the SMS/800 database. There are currently approximately 138 RespOrgs. Any entity that meets certain eligibility criteria may serve as a RespOrg.(n16) RespOrgs' actions and responsibilities are governed by industry guidelines.(n17) Under those guidelines, RespOrgs may reserve at any one time a limited quantity of toll free numbers.(n18) They also must return toll free numbers to the spare pool when customers disconnect or cancel their service and must serve as troubleshooters for their toll free customers.(n19)

8. The 800 service access code offered subscribers approximately 8 million toll free numbers.(n20) As of June 13, 1995, there were approximately 600,000 800 numbers remaining in the common 800 database assignment pool. This figure represents what remained unreserved or unassigned in the database following a week in which 113,000 numbers were assigned,(n21) and reflected a tripling of the weekly draw from the database projected by the industry less than one year earlier. If consumption had continued at this pace, the 800 database would have been depleted of unassigned numbers in July 1995.

9. Earlier in 1995, the industry selected the interchangeable NPA ("INPA")(n22) 888as the first relief toll free code,(n23) but initially estimated that modification in the local exchange networks to enable use and portability of 888 toll free dialing numbers would not be completed until April 1, 1996. The industry estimated that the IXCs' networks, on the other hand, would be able to support the new code as early as mid-December for some IXCs and January 1996 for others. The LECs, unable to advance the April 1996 deployment date, feared that the April date lay far beyond the date on which it appeared that there would be no 800 numbers left unassigned in the database. Thus, it appeared that without a modification of the number assignment process, there would likely have been a period of several months in which customers would have been unable to obtain new toll free numbers from their chosen 800 Service Provider. As a result, the industry approached the Common Carrier Bureau ("the Bureau") for assistance.(n24) In response, the Bureau developed a plan to address: (1) the conservation of remaining 800 numbers; (2) the advancement of the April 1996 implementation date for the relief 888 toll free code(n25); and (3) the reclamation of unused toll free numbers.(n26) As part of this effort, the Bureau imposed a number of temporary emergency measures. First, the Bureau determined that effective June 12, 1995, new or pending RespOrg applications would be suspended for a period of six months.(n27) Second, the Bureau limited the quantity of 800 numbers that could be assigned in any given week to 28,000, or approximately the weekly usage rate that the industry originally projected and used in planning the transition period for 888 deployment. Each RespOrg was allocated an amount based on a formula relating to its historic role in the deployment of 800 numbers.(n28) Third, theBureau concluded that the aging process(n29) and the amount of time a number could be held in reserve status(n30) should be shortened. In addition, to hasten 888 implementation, the Bureau has continued to conduct biweekly industry meetings to address the deployment of the software and hardware upgrades needed to support portable 888 toll free numbers. The purpose of these meetings is to provide an open forum in which the industry and the generalpublic can share information regarding the implementation of the new toll free code. The first meeting was held on June 15, 1995; biweekly meetings are scheduled to be held until the 888 code is introduced.

10. We have decided to initiate this rulemaking because of industry requests to smooth the transition to an expanded set of toll free service access codes, starting with 888 and eventually deploying 877, 866, and so forth. The Commission has historically left most 800 numbering issues to the industry for resolution. We intend to continue this general policy, but in situations such as this, the Commission is obligated to become involved. Numbers are limited in quantity and are part of a highly competitive environment. We find this rulemaking is also needed to continue and to ensure the promotion of efficient, fair, and orderly allocation, and use of, these limited numbering resources. We realize that the industry cannot be expected to solve, on its own, issues relating to limited resources essential to all telecommunications service competitors, and we seek to provide a framework for resolution of these issues in the future. Our goal is to avoid in the future the situation we faced prior to the agency's intervention in the 800/888 transition: the imminent total depletion, or exhaust, of toll free numbers before the industry could make a new toll free code available to subscribers.

12. Section One of the Communications Act of 1934 requires the Commission "to make available, so far as possible, to all the people of the United States a rapid, efficient, Nation-wide, and world-wide wire and radio communication service."(n34) In addition, Title II of the Act confers upon the Commission responsibility for regulating the activities of those entities engaged in the provision of common carrier services. We find that these statutory mandates compel the Commission to promote the efficient use of existing toll free numbers and to ensure that new toll free numbers are assigned and used in an efficient, fair, and orderly manner. With respect to new toll free numbers, our goal in initiating this rulemaking proceeding is to assure their efficient use and to avoid the unanticipated rapid depletion experienced with 800 numbers.

2. Proposals

a. Making Toll Free Numbers Available to Subscribers Who Need and
Want Them

13. We seek comment on proposals that would advance the efficient use of toll free numbers to ensure that they are available for subscribers who need and want them. We are concerned by reports that some subscribers are having toll free numbers assigned to them without even requesting them and using them little, if at all.(n35) We seek comment on whether such distribution serves the public interest. Specifically, we seek comment on whether we should require that a RespOrg or 800 Service Provider have an affirmative request from a subscriber before assigning a toll free number to such a subscriber. We request comment on a further proposal that, for auditing purposes, records of such affirmative requests be retained by the RespOrg or 800 Service Provider for two years. In addition, we ask parties to address the Commission's legal authority to enforce such requirements and the relative advantages and disadvantages of imposing these requirements through carrier tariffs or Commission rules. We tentatively conclude that proposals like these serve the public interest in the fair and equitable distribution of scarce numbering resources.

b. Escrow Requirement

14. At the present time, a RespOrg must pay a monthly charge of 70 cents for each toll free number drawn from the SMS/800 database.(n36) Similarly, a subscriber pays a service charge to the 800 Service Provider for each toll free number assigned to that subscriber. Given these various charges, one would expect that market forces would dictate an efficient allocation of numbers, but that may not necessarily be the case. In an effort to encourage a more efficient use of toll free numbers, we seek comment on the feasibility of requiring a one time deposit into an escrow account for each toll free number held in reserved status. This amount could be in addition to the monthly charge RespOrgs and subscribers now pay. The deposit could be paid by RespOrgs, 800 Service Providers, third party agents who obtain toll free numbers for distribution, and/or toll free service subscribers. A deposit requirement could influence RespOrgs, 800 Service Providers, and third party agents to reserve only those toll free numbers for which they have customers, discourage parties from warehousing numbers for possible future use, and encourage toll free service subscribers to reserve only those numbers they actually need. Warehousing numbers, or cornering the market, is undesirable even when numbers are portable because having numbers when no one else does gives the holder an unfair competitive advantage. We seek comment on the advantages and disadvantages of requiring either some or all of these entities to pay a deposit into the escrow account. We also seek comment on whether a RespOrg, an 800 Service Provider, or a third party agent should be allowed to pass along the escrow charge to the 800 service subscriber. Further, we seek comment on how such an escrow account should work, how such a fund would be managed, and by whom such a fund would be managed. Commenters should address the requirement's impact on competition, particularly the effect upon smaller RespOrgs just entering the toll free business.

15. In addition, we ask parties to comment on the appropriate dollar amount that should be deposited in the escrow account for each number and on whether a reduced amount should be deposited if 800 Service Providers use PIN technology.(n37) A lower deposit amount may provide carriers more incentive to use PIN technology. Another alternative would require only the RespOrg, and not the 800 subscriber, to pay a deposit for toll free numbers. We seek comment on whether an escrow requirement should be dependent on a particular threshold (e.g., only after the RespOrg had reserved 1% of all toll free numbers would it be required to deposit money into the escrow account). We also seek comment on an appropriate reservation threshold and on when the deposit should be returned (e.g., when the number is disconnected or the entity that pays the escrow deposit has generated a certain amount of traffic).

16. We propose that any deposit made by a RespOrg or 800 subscriber found to be warehousing(n38) or hoarding(n39) any toll free number would be forfeited. The deposit could also be forfeited if it was determined that a number was obtained simply to sell or broker to another entity. Numbers are a public resource,(n40) and there are rules against selling or bartering numbers by individuals.(n41) We seek comment on these proposals and on what actions the Commission can take to discourage RespOrgs or 800 subscribers from warehousing or hoarding toll free numbers and what remedy would be appropriate for such violations. c. Lag Time

17. Under the present industry guidelines, toll free numbers are categorized according to status and may remain in different statuses for varying periods of time. There are nine categories in which a toll free number can be placed:

"working" - a number that has been loaded into the SCPs and is being utilized to complete 800 service calls.(n42)

"assigned" - a number that has specific subscriber routing information entered by the RespOrg in SMS/800 and is pending activation in the SCPs. An 800 number may remain in this status until changed to "working" or for a maximum of 12 months, whichever occurs first.(n43)

"reserved" - a number that has been reserved by a RespOrg for a subscriber. An 800 number may be held in this status for up to 60 days.(n44)

"spare" - a number that is available for assignment by a RespOrg.(n45)

"disconnect" - a number for which 800 service has been disconnected and an exchange intercept recording is being provided to inform callers of that status. After a designated interval, the 800 number status will change to spare.(n46)

"transitional" - a number that has been disconnected for less than six months but no exchange intercept recording is being provided. At the end of six months, the 800 number status is systematically changed to spare.(n47)

"suspend" - a number that has been temporarily disconnected and is scheduled to be reactivated. An 800 number may remain in this status until changed to working or for a maximum of 12 months, whichever occurs first.(n48)

"unavailable" - a number that is not available for assignment due to an unusual condition. Requests to make a specific 800 number unavailable must be submitted in writing to the NASC with the appropriate documentation of the reason for the request.(n49)

"NXX not open" - an 800 number that is in an NXX code which is not open or available for general ten digit number assignment.(n50)

18. Concerns related to the lag time between any given status and "working" status are twofold. The first concern relates to the amount of time between withdrawal from the SMS database and conversion to working status. Typically, a subscriber will call an IXC to obtain a toll free number, and that IXC will act as the subscriber's RespOrg. The RespOrg reserves a toll free number for the subscriber by accessing the SMS/800 database, and thenumber is assigned only after specific customer routing information is entered in the SMS database. Following activation in the SCPs, the number is converted to working status and is available to complete toll free calls. While it is reasonable to expect some delay between the reservation of a number and its being put into use, we believe that the guidelines permit more time for that process than is sound. Under the present system, numbers are tied up even though they are not being used and, therefore, are not available for distribution to customers who may want and need them for immediate use. This practice contributes to an inefficient use of this valuable numbering resource. Therefore, we seek comment on two proposals designed to reduce the interval between reservation and conversion to working status. We believe that these proposals balance the need to provide a reasonable interval between reservation and working status with the need to efficiently and promptly allocate toll free numbers. First, commenters are asked to address a proposal to reduce the amount of time a toll free number can remain in reserved status from 60 days to 45 or 30 days. Second, we seek comment on a proposal to reduce the amount of time a toll free number can be assigned, but not working, from 12 months to 4 months.

19. The second concern related to lag time involves the "aging" process for toll free numbers, which is defined as the period of time between disconnection or cancellation of a toll free number and the point at which that toll free number may be reassigned to another subscriber.(n51) A certain amount of lag time is necessary to prevent excessive misdialing, unreasonable expense to the new toll free subscriber, and confusion for the toll free caller. We believe, however, that the guidelines allow a longer aging process than is necessary or reasonable, resulting in an inefficient allocation of toll free numbers. If the length of the aging process is reduced, toll free numbers not currently in use will be returned to the spare pool more quickly, becoming available for reassignment to new subscribers requiring working numbers. We seek comment on the advantages and disadvantages associated with two proposals to reduce the amount of time toll free numbers can remain in a status other than working. We believe that these proposals will better balance the needs of toll free subscribers and callers with the need to recycle toll free numbers expediently and enhance efficient allocation of this valuable resource. First, commenters should address a proposal to reduce the six month aging period from disconnect to spare status to four months.(n52) Second, commenters are asked to address a proposal to reduce the amount of time toll free numbers can be suspended but not reactivated, from 12 months to 4 months. Finally, commenters are asked to address other ways to improve any lag time that may currently exist as a result of the present industry guidelines.

d. Personal Identification Numbers

20. We also ask parties to comment on the possible use of a personal identification number ("PIN") in conjunction with the use of some toll free numbers. Under this proposal, multiple customers could use a single toll free number. Based on discussions with the industry, we understand that, in connection with their personal 800 service, MCI and SkyPage are currently using PIN technology, while AT&T asserts that it will have the technology available on a nationwide basis for use with its True Ties offering in September 1995. A customer would be assigned a toll free number and a PIN of one, two, or multiple digits. The number of digits in the PIN would determine the number of subscribers that could be assigned to a single toll free number. PINs with more digits result in a greater number of permutations, which in turn results in a greater number of subscribers able to be assigned to a single toll free number. For example, with a four digit PIN, as many as 10,000 subscribers could use the same toll free number. To access such a toll free number, the subscriber would have to enter both the telephone number and the PIN.

21. We are aware of concerns that PIN technology does not permit portability in the same manner as toll free numbers without PINs and may be incompatible with some toll free services, thus disrupting the business plans of some companies. We are also aware that a PIN plan raises competitive concerns because companies requiring their customers to dial ten digits plus a PIN to reach their customers may be at a competitive disadvantage compared to companies requiring their callers to dial only ten digits.(n53) We do not wish to cause such disruption or create a competitive imbalance in the 800 market by imposing a PIN "requirement;" therefore, we seek comment on the feasibility of plans to facilitate, encourage, or reward the use of a PIN system for at least some services, such as personal toll free service or paging service, that may make less intensive, or low use of the toll free numbers assigned to the service providers. A PIN plan for such toll free numbers would permit more intensive use of those toll free numbers. In this regard, commenters are asked to address a workable definition of low use. Our goal is to create a responsible plan for the allocation of toll free numbers and to encourage the use of PINs in connection with at least some services using toll free numbers where business plan disruption would not occur.

B. Mechanics of Opening New Toll Free Codes

1. Background

22. In planning for the deployment of new toll free codes, our goal is to avoid rapid, unanticipated depletion of these scarce numbering resources. Given the heightened interest in and demand for toll free numbers, it is particularly important to have policies and procedures designed to prevent a reoccurrence of such a threat in place well in advance of thedeployment of new toll free codes.

2. Reservation of New Toll Free Codes

23. As the industry prepares to expand the number of codes used for toll free dialing, our goal is to make this process smooth, orderly, and fair to all participants. To that end, we seek comment regarding the current toll free reservation and assignment process, under which toll free numbers are reserved on a first come, first served basis.(n54) Under existing Industry Guidelines, each RespOrg may reserve up to 1,000 numbers, or 15% of its total quantity of working toll free numbers, whichever is greater, at any given time.(n55) For example, a RespOrg with 100,000 working toll free numbers could reserve 15,000 additional numbers from the SMS database, while a RespOrg with 500,000 working toll free numbers could reserve up to 75,000 additional numbers. A specific toll free number may be reserved for a maximum of 60 days on behalf of a RespOrg's customer before being converted to working status.(n56) Large RespOrgs with multiple terminals are able to reserve mass quantities of toll free numbers in rapid order.(n57) Conversely, the system may place smaller, less technologically sophisticated RespOrgs at a competitive disadvantage, since they do not have the capacity to reserve numbers in rapid order. The advantage enjoyed by the larger RespOrgs lies particularly in their ability to obtain strategic toll free numbers (i.e., vanity numbers).(n58) In light of our goal to make allocation of toll free numbers a fair and equitable process and in light of the anticipated exhaust of 800 numbers, we seek comment on whether these reservation guidelines should be codified and/or amended. For example, if a certain number was requested by more than one party, should we require that the parties participate in some form of dispute resolution? In the event that dispute resolution failed, should thenumber be assigned based on a lottery? Commenters are asked to address this proposal, as well as whether if we codified the current guidelines and applied them to the new toll free codes, this would permit depletion of toll free numbers to occur in an unreasonable way. We also ask parties to comment on whether we should have different reservation procedures for certain codes that are in high demand (e.g., "8XX-555"). Such codes may be highly valuable to businesses, and the distribution of such numbers must be fair and equitable.

3. Phased Introduction of New Toll Free
Service Access Codes

24. We seek comment on whether, to prevent the immediate depletion of new toll free numbers and the overload of the SMS system, new toll free service access codes, once operational, should be gradually activated. We ask parties to comment on what measure, if any, we should adopt to effectuate a gradual implementation of the new toll free code. For example, should we limit the quantity of numbers that can be drawn from the database in a given time period? We are especially concerned about the initial quantity of 888 numbers that will be taken from the spare pool once the current conservation plan is lifted. We seek comment on the advantages and disadvantages of such a plan, how it should be implemented, and what role the Commission should play, if any.
25. We understand that there is a maximum number of transactions that the data links between the SMS and the SCP can accommodate in one day.(n59) We are concerned that, because of the current capacity of these links, initially there will be a tremendous volume of activity over these data links when the new toll free code becomes available. Particularly in light of conservation measures involving 800 numbers that have been in place in recent months, we expect that there will be high demand for 888 numbers on the first day the new code is available. Such high volume activity may affect the overall performance of the SMS system and its ability to accurately and efficiently send messages to the SCPs, thereby impacting both new toll free service and existing 800 service. We seek comment on whether we should require expansion of the data links to accommodate the new volume of traffic, or whether this increased volume is only temporary. We also seek comment on the method that should be adopted to ensure that there is no degradation in the performance of the SMS when there is a high volume of activity on the data links. Specifically, we propose allowing numbers to be reserved 45 days in advance of the general availability of the next toll free code, but not allowing those reservations to change to working status until the availability date or beyond. We also propose limiting the quantity of numbers that can change from reserved to assigned to working status in one day. We believe these proposals will help toprevent overload of the data links between the SMS and the SCPs and will preserve the integrity of both new and existing toll free service. We seek comment on these proposals.

4. Implementation Plan for Next Toll Free Code Beyond 888

a. Background

26. In an effort to prevent a situation similar to the one faced today whereby most 800 numbers will be assigned before a new code can be opened, we propose that the planning for the introduction of new toll free codes start well in advance of the projected total consumption of the previous toll free code. In this context, planning refers to all the steps necessary to prepare the public switched telephone network ("PSTN") for the general availability of the new toll free code. The industry already has well-established methods of network planning in use for other aspects of its business such as sales projections and trend analysis. It is not uncommon for a carrier to have three and five year plans that address such issues as customer growth, network topology, traffic planning, network architecture, and exhaust of area codes.(n60) The proposals we identify below would be an extension of the carriers' current planning procedures.

b. Proposals

27. We believe that the industry must improve its ability to identify when depletion of one code is sufficiently near to require deployment of the next toll free code. In that regard, we propose that the Commission identify a trigger that would alert the industry that the current toll free code is sufficiently near completion to require that the next toll free code be prepared for deployment. One approach could be to commence planning for the next toll free code as soon as the previous toll free code is introduced. Under a second approach, the triggering event might be when unassigned numbers in the 888 database decline to a specified percentage of the total numbers in the 888 database. For example, if we choose 50% as the implementation trigger, then once 50% of the toll free numbers are in use, leaving 50% unassigned, deployment of the next toll free code would begin. Other triggers also might be appropriate. Commenters are asked to address when is the optimal time to commence implementation of the next toll free code and to identify the entity that should oversee this implementation. Potential candidates for overseeing implementation include, among others, the Commission, the newly created North American Numbering Council ("NANC"), an industry group, a Federal-State Joint Board, or a Joint Conference.

28. We believe that the industry also must improve the transition process associated with introducing a new toll free code. We tentatively conclude that it is feasible, desirable, and in the public interest to plan with more foresight and on shorter notice, for theintroduction of future toll free codes. Specifically, we seek comment on whether it would be reasonable to mandate implementation of a new toll free code on six months' notice. We propose that this six month period commence when a certain occurrence, as discussed above, triggers the decision to open the new toll free code. In the 888 implementation meetings, the SMS/800 and SCP(n61) vendors, as well as the various switch vendors, stated that their products will support 888 as well as the remaining toll free codes. We can identify no technical reason for delaying new toll free code introduction. We believe that a six month period would provide adequate time to deploy any hardware or conduct any testing needed before a new code can support live traffic. Parties are asked to comment on any technical limitations to opening a new toll free code within six months of the triggering event.

29. Related to the implementation of new area codes are the technological upgrades that must occur before new codes can be used. We tentatively conclude that all network switches in the United States should have, at a minimum, the software needed to support all toll free codes reserved by the industry in January 1995 installed by February 1997. This includes switches both with SSPs and without SSPs.(n62) Since the major switch vendors have already committed to developing the software and, in many cases, have already developed the software necessary to support all of the reserved toll free codes, we do not anticipate any technical obstacles to this proposal. We believe that having the software available in all switches will greatly reduce implementation schedules needed for additional toll free codes. When the next toll free code is needed, only hardware upgrades and testing will be necessary before the new code is available for general use. We seek comment on this tentative conclusion and on whether the February 1997 deadline is reasonable.

30. We do not consider the situation we face in 888 implementation, where some of the LECs are routing calls using the new 888 code through a tandem and calls using the 800 code through an end office, a viable solution for future toll free codes. We believe that routing the calls using new codes through a tandem rather than an end office is both inefficient and unnecessarily costly to the interconnecting carriers that have circuits carrying all their 800 calls from LEC end offices. We also believe that allowing different routing schemes would undermine the goal of treating all toll free codes the same. If the goal to install the software to support all toll free codes in all toll free switches is met, we see no reason to allow the routing of new codes to be done any differently than the routing ofprevious codes. We expect, for example, that 800 calls as well as 888 and subsequent toll free code calls, will be routed by the LEC offering originating access for an 800 call over the same trunk groups connected to their interconnecting carriers.(n63) We tentatively conclude that each toll free code should meet the call set-up time requirements established in the 800 Database proceeding.(n64) We seek comment on this proposal.

5. Tracking Toll Free Number Usage

31. To promote the efficient development of the toll free market and the efficient use of toll free numbers, we tentatively conclude that more comprehensive information on the toll free market and on number usage should be publicly available. In general, the availability of additional information reduces uncertainty, facilitates planning, and helps companies minimize costs in a competitive economy. In addition, better information about toll free number utilization would permit more effective analysis of anticipated exhaust.(n65) We propose that the administrator of the SMS/800 database, currently DSMI, be required to submit periodic reports to the Commission on toll free number utilization, and we seek comment on the nature and the frequency of these reports. We tentatively conclude that the reports should include information of the following type for each toll free service access code: (1) the quantity of numbers that are in spare status and available for use; (2) the quantity of numbers that are in working status and are in use; (3) monthly usage, or the quantity of numbers assigned to working status each month; and (4) estimated time remaining before that code is exhausted, along with the method used to calculate the estimated time remaining. The report should also set forth the quantity of numbers assigned to the various categories as set forth inthe industry guidelines.(n66) We note that the total quantity of toll free numbers assigned monthly from the spare pool of numbers is available monthly and is published semi-annually.(n67) Even with this report, the method described above to project 800 exhaust may not be sufficient. We also seek comment on whether additional information on the toll free market should be reported to the Commission and made publicly available. Such information might include, for example, information on usage by type of toll free number assignment, such as business, personal, or access. Accordingly, we propose to direct the Chief of the Common Carrier Bureau to establish the reporting requirements necessary to make available timely information on the use of toll free numbers.

C. Warehousing of Toll Free Numbers

1. Background

32. RespOrgs are currently limited in the quantity of toll free numbers they may reserve at any one time by voluntary, good faith compliance with industry guidelines.(n68) Prior to the introduction of our conservation measures, the rapid depletion of 800 numbers had prompted growing concern that, despite industry guidelines, 800 numbers were being warehoused(n69) rather than immediately assigned. We tentatively conclude that warehousing of toll free numbers by communications service providers subject to Title II of the Communications Act is an unreasonable practice, and, thus, inconsistent with the public interest. We seek comment on this tentative conclusion and ways to eliminate warehousing, as suggested below.

2. Proposals

33. In response to the rapid depletion and imminent exhaust of 800 numbers, theCommission initially reduced the percentage of toll free numbers a RespOrg could reserve from 15% of its working numbers to 3%.(n70) The Bureau eliminated the 3% limit, however, because the weekly take rate would never rise above 28,000 toll free 800 numbers per week.(n71) We seek comment on whether once the Commission is no longer limiting the total quantity of toll free numbers that may be drawn from the database, we should impose a permanent cap on reserved numbers of 3% or some other number less than 15%, in an effort to prevent a large pool of toll free numbers from remaining in reserve status (i.e., being warehoused). We also seek comment on what remedy the Commission would have against a RespOrg found to be warehousing toll free numbers. Commenters should be specific as to the nature of any recourse and the means by which such recourse would be enforced. Moreover, we request comment on what, if any, penalty should be imposed if a customer is found to be hoarding(n72) toll free numbers. We tentatively conclude that the Commission has the authority to penalize RespOrgs for violating any warehousing controls the Commission may adopt, and that an appropriate fine may be imposed(n73) and even de-certification of the entity as a RespOrg may be necessary. We seek comment on this tentative conclusion and on whether other remedies may be appropriate.

34. To understand why 800 numbers have been consumed so much more quickly than the industry had initially anticipated, the Bureau has been investigating who was taking these numbers and for what uses. As a result of the Bureau's investigation, we find that toll free subscribers include business subscribers, residential or personal subscribers, and access subscribers, a term we use to describe those using voice mail and paging services. In a further effort to prevent warehousing of toll free numbers, we propose requiring RespOrgs to certify to the accuracy of certain subscriber information. We tentatively conclude that all RespOrgs should certify to the Commission that: (1) there is an identified subscriber who has agreed to be billed for service associated with each toll free number requested from the database; and (2) there is an identified, billed subscriber before switching a number from reserved or assigned to working status. There are allegedly instances in which subscribers may claim working status when, in fact, the toll free number is not actually working. Theproposed certification would be required under penalty of false statement(n74) and would require that an officer of the company provide name, address, telephone, and facsimile numbers. To the extent that a subscriber is itself subject to regulation under Title II, we propose that it would also be required to meet the same certification requirements. We seek comment on this certification proposal and on whether certification should be required on a monthly, quarterly, or yearly basis. We ask parties to address the extent to which the information requested is proprietary.

D. Vanity Numbers

1. Background

35. A vanity number is a telephone number for which the letters associated with the number's digits on a telephone handset spell a name or word of value to the number holder. Examples of such vanity numbers include "1-800-THE-CARD" and "1-800-FLOWERS." For purposes of this NPRM, vanity numbers also include any numbers in which the holders have a particular interest, be it economic, commercial, or otherwise. For example, certain manufacturers dedicate toll free numbers for emergency recall situations or consumer inquiries. As new toll free codes become available, a question arises as to whether the current holder of an 800 vanity number should have a right of first refusal or other priority on the equivalent number drawn from a new toll free code. Companies may have a financial interest in being able to reserve these equivalent vanity numbers because of their high visibility, consumer recognition, and the confusion that may ensue, for example, if one subscriber uses the toll free number "1-800-THE-CARD" and a competitor uses the toll free number "1-888-THE-CARD." Some 800 number holders may have invested substantial resources in advertising the number and establishing a reputation for it.(n75) At this time, we have no way ofknowing how many 800 number holders would want corresponding 888 numbers. Our efforts to encourage the industry to provide such information have not yielded any response. In the end, we must balance goodwill and the holder's interest in a vanity 800 number against the need to manage a limited resource.

36. The Commission has characterized telephone numbers as a public resource that is not the property of the carriers.(n76) The Commission has further stated that carriers "do not `own' codes or numbers, but rather administer their distribution for the efficient operation of the public switched telephone network."(n77) With respect to our jurisdiction over numbering issues, we have recently stated that we may assert jurisdiction over all numbering issues that are interstate in nature or if the facts of a particular situation render it "not possible to separate the interstate and intrastate components of the asserted regulation."(n78)

37. Bellcore, the current administrator of the North American Numbering Plan ("NANP"), assigns numbers in accordance with principles and guidelines established through industry consensus procedures. Like the Commission, Bellcore has characterized numbers as a public resource for use by individuals or entities, specifically denying that administrative assignment of a number implies ownership by either the assignor or assignee.(n79) The most recent version of the industry assignment guidelines for 800 numbers(n80) and the existing assignment guidelines for 555 NXX codes(n81) present a similar view.

38. From the consumers' perspective, vanity numbers are portable numbers in which businesses have invested substantial resources. Certain subscribers may even think of toll free numbers as their property. Telecommunications tariffs and rules on file with state public service commissions, however, routinely recite that subscribers do not own their telephone numbers.(n82) While certain carriers have drafted tariffs purporting to grant to those carriers exclusive property interests in particular blocks of telephone numbers,(n83) no court has yet ruled on the legality of such tariff provisions.

39. Courts that have ruled on the intellectual property nature of a telephone number have held that a term spelled out by a vanity number may be protected as a trademark orservice mark, provided that it meets the statutory requirements for trademark protection.(n84) We note, however, that these holdings have been limited to the question of whether the mnemonic term, rather than the underlying number, is entitled to trademark or service mark protection.(n85) This fact supports the view that an ownership interest in the term associated with a vanity number does not imply the existence of any ownership interest in the underlying number.

2. Scope of Vanity Numbers

40. In order to design a fair and reasonable allocation methodology for numbers drawn from new toll free code databases, we must ascertain the potential number of equivalent vanity numbers that might be reserved for 888 and subsequent toll free codes. We ask parties to identify the total number of existing vanity numbers or a method for ascertaining how many numbers are or should be regarded as vanity numbers. This information could help us to assess fully the viability of recognizing a right of first refusal, as discussed below, for equivalent 888 and subsequent code vanity numbers and the impact such a right of first refusal will have upon competition. For example, if only a small percentage of 800 numbers are vanity numbers, we must assess whether establishing a rule regarding a right of first refusal would serve the public interest. Conversely, if the percentage of 800 vanity numbers is large, we must also assess whether the benefits of establishing such a rule outweigh the costs it would impose, the most obvious of which is the rapid immediate consumption of numbers from new codes with little assurance that these numbers will be intensively used. In the event that we deny a right of first refusal, we also seek comment on whether federal trademark law alone will sufficiently protect the current holders of 800 vanity numbers against new code assignments that may produce the same vanity acronym.

3. Proposals

a. Right of First Refusal

41. A right of first refusal would permit the holder of that right to have a superior right vis-a-vis all other interested parties to receive the equivalent 888 number. We therefore seek comment, first, on whether the current holders of 800 numbers should be permitted to exercise such a right of first refusal. Second, if a right of first refusal is allowed, we seek comment on whether subscribers should be permitted to exercise this right free of charge or should be required to pay for the right of first refusal through, for example, a one-time feeassessed on the subscriber or through a competitive bidding process. Third, if subscribers are required to pay for a right of first refusal, we seek comment on what entity should receive the money and whether it should be earmarked for particular uses, e.g., administration of the DSMI database or otherwise for the operation of the North American Numbering Plan. We also seek comment on the Commission's statutory authority for promulgating such measures.

42. We note that we have received numerous letters from current holders of 800 numbers regarding the right of first refusal.(n86) These letters indicate two primary areas of concern: the need to block other entities' claims to the equivalent 888 number so as to prevent the possibility of fraud or customer confusion, and the affirmative desire to acquire the equivalent 888 numbers to perpetuate consumer association of the business with those numbers. It should be noted that if a significant fraction of 800 number holders wanted the 888 analogue, there would be an array of numbers immediately reserved, bringing the new code that much closer to exhaust. The problem would then roll from 888 to 877, and so forth. We seek comment, therefore, on the effect of any such right of first refusal on our goal that toll free numbers be used in a fair, efficient, and orderly manner. Finally, we seek comment on the application of a right of first refusal to subsequent new toll free codes (e.g., 877, 866, and so on).

43. Moreover, a decision to grant a right of first refusal on equivalent toll free numbers may also have international effects. We recognize that different countries may ascribe different proprietary rights to telephone numbers. As a result, we seek comment on the impact of allowing such a right of first refusal upon members of the NANP. We also ask parties to address whether a right of first refusal is consistent with international intellectual property laws or any other related international issue. Comment is specifically requested on issues relating to "free phone" initiatives or any other numbering initiatives of the International Telecommunications Union ("ITU"). We intend to continue to coordinate with other countries to ensure that toll free numbers are used in an efficient manner.

b. Assignment Based on Industrial Classification

44. To address the question of fraud, we seek comment on an alternative to a right of first refusal that would bar any competitor of the current holder of an 800 number from obtaining the equivalent 888 number, as well as the equivalent number in any subsequent toll free code. Under this approach, a numerical code could be assigned to each service and industry in the economy. The current holder of an 800 number with commercial concerns related to assignment of the equivalent 888 number could report its code to its 800 Service Provider, which in turn would be required to report the code to DSMI. DSMI would then enter the codes in the SMS database. A subscriber seeking to obtain an 888 number would also report its code to its RespOrg. The RespOrg would report the subscriber's code to DSMI when attempting to reserve the 888 number from the SMS database. DSMI would thenquery the database to determine the code associated with the current holder of the equivalent 800 number. If the 888 applicant and the current holder of the equivalent 800 number shared the same code and were, therefore, competitors, the 888 applicant would not be permitted to obtain the equivalent 888 number. Under this alternative, the current holder of an 800 number would similarly be barred from obtaining the equivalent number in any new toll free code. The reporting requirement would apply to all toll free service subscribers in all toll free codes. That is, when a new subscriber in the 888 code reported its code, no entity with the same code could obtain the equivalent toll free number in the 877 code or any subsequent toll free code.

45. Standard industrial classification ("SIC") codes(n87) could be used to categorize services and industries.(n88) We believe that this proposal would serve the dual purposes of:
1) allaying the fears of current 800 number subscribers that a competing business would obtain the equivalent number in a new toll free code; and 2) promoting the efficient allocation of the toll free number resource. We seek comment on the feasibility of this approach, as well as its advantages and disadvantages. We ask commenters to address the reporting requirement and whether it would impose an undue burden on subscribers, RespOrgs, 800 Service Providers, and/or DSMI. We also seek comment on the specificity required in SIC codes. For example, it may be that a two-digit code does not provide enough specificity, while a four-digit code provides more specificity than is necessary.(n89) Finally, we seek comment on how best to accommodate conglomerates that may fit within multiple classifications and whether such a proposal would delay the introduction of new toll free codes because of technical changes that would have to be made to the SMS database.

c. Miscellaneous Proposals

46. Further, we seek comment on a number of additional alternatives to permitting the right of first refusal on equivalent toll free vanity numbers. First, we could require the administrator to release those 888 numbers identified as equivalent toll free vanity numbers at the end of the toll free assignment pool. For example, "1-888-THE-CARD" would not be assigned until a substantial percentage of the 888 pool was depleted. Second, we couldrequire carriers to provide a transitional gateway intercept during the change to a new toll free code. That is, when a consumer called either "1-800-THE-CARD" or "1-888-THE-CARD," he would first reach an intercept message that would help him clarify which entity he wanted to reach before the call was completed. Third, we may wish to require a partitioning of toll free service, leaving business entities and the majority of vanity number holders to use the 800 code and assigning a specific toll free code to subscribers for personal and pager use. Of course, such partitioning must be consistent with the Communications Act and may not be unreasonably discriminatory toward any particular class of carrier.(n90) We seek comment on the advantages and disadvantages, as well as the feasibility, of each of these options.

4.High Volume Numbers

47. Many toll free numbers receive a high volume of calls each day. For example, a telemarketing firm may receive through one 800 number all of its calls, which may amount to thousands of calls per day. A toll free subscriber with a 7-digit number in one toll free code that corresponds to a high volume 7-digit number in another toll free code might receive a large quantity of misdialed numbers. The chance of a substantial number of misdialed calls, particularly soon after the introduction of the new toll free code, appears to be great. This situation could harm both parties involved. One subscriber will be inconvenienced by receiving unwanted calls for which it will have to pay or, at minimum, work with its 800 service provider to identify and receive a delayed credit. The holder of the number the caller was actually trying to reach may lose business. We seek comment on whether there should be some protection for the new toll free subscriber who obtains a number that translates to a high volume number in another code. We also seek advice on how such a number might be identified in the SMS database.

E. Toll Free Directory Assistance

48. 800 Directory Assistance ("DA") is currently a monopoly service provided by AT&T.(n91) We tentatively conclude that 800 DA and 888 DA, and eventually DA for subsequent toll free codes, should be combined into interchangeable toll free DA service and should be open to competition. By combining 800 DA and 888 DA, callers will be able todial either "1-800-555-1212" or "1-888-555-1212" and access DA for all toll free numbers. Customers would find this system easy to use because it would be accessible and not confusing. We seek comment on this proposal and on the economic reasonableness and technical feasibility of combining the provision of DA. Commenters are also asked to address a proposal to not assign "888-555-1212," which would constitute the 888 DA number, until toll free DA issues have been resolved.

F. Administration of the Service Management System

49. DSMI is currently the primary administrator of the toll free data base, SMS/800. In response to industry concerns, Bellcore established DSMI for the purpose of administering the SMS/800, and subcontracted functions requiring access to proprietary customer information to a neutral third party, Lockheed IMS. Bellcore also recently completed a procurement process for the SMS/800 hardware vendor. The Bureau concluded that it was unnecessary for the Commission to intervene because steps had been taken to ensure neutrality of the procurement process.(n92) In addition, the RBOCs have announced plans to sell Bellcore, which is the parent company of DSMI. We seek comment on whether DSMI should continue to administer the toll free databases or whether another entity, such as the North American Numbering Plan Administrator or another neutral party should administer the toll free databases. Further, we ask parties to comment on whether the administrative database functions currently performed by DSMI and Lockheed(n93) should be performed by independent third parties not affiliated with Bellcore, the RBOCs, or current owners of the regional databases.(n94)

G. Public Awareness and Industry Participation

50. Both the Commission and the telecommunications industry have undertaken educational initiatives regarding the implementation of toll free 888 in an effort to assure that the public is fully informed about the introduction of new toll free dialing codes. On June 15, 1995, the Bureau initiated a series of biweekly industry meetings that will be held until toll free 888 has been deployed and is portable. The first meeting revealed that industry has undertaken several public relations initiatives, including hiring public relations firms to conduct multimedia campaigns, issuing monthly advisories to sales staff, conducting press interviews, and issuing press releases. We seek comment on whether additional efforts to improve public awareness should be undertaken. Commenters are asked to address who should conduct such public awareness efforts, who should pay for them, and what form such efforts should take.

H. Circuit Breaker Model

1. Background

51. In addition to the various proposals described above, there may be other methods by which the Commission can effectively oversee the allocation of toll free numbers. Circuit breakers, for example, describe predetermined, cross market trading halts in the computer program trading of securities. They are designed to restrict program trading in volatile markets by restricting access to computerized trading systems(n95) and by allowing the markets to cool off by suspending trading for short periods of time. It may be possible to adopt circuit breaker rules to control consumption of toll free numbers.

2. Proposals

52. Following the accelerated consumption of 800 numbers and the need for the Commission to impose emergency conservation measures, we tentatively conclude that a circuit breaker rule for toll free numbers would serve the public interest. We do not believe, however, that the exact model used in today's stock and future exchanges will be directly applicable to the toll free number assignment process. Our intent is to adopt a model that affects the toll free assignment rate as the circuit breaker rules affect the securities market (i.e., regulating consumption).

53. One proposed model would be executed once it is announced that the exhaust date for the current toll free code is near. The exhaust date would be established based on the rate at which toll free numbers are reserved per week and would serve as the trigger to start planning implementation for the next code. The availability date for the next toll free code (e.g., the date on which the code is available for toll free subscriber traffic) should be at least four months before the established exhaust, or trigger date. When the trigger date is reached, a weekly consumption rate equal to the weekly average quantity of numbers obtained for theprevious twelve months would be established for each RespOrg. This rate would be each RespOrg's circuit breaker threshold and would not change during the planning period. If the RespOrg exceeded the circuit breaker threshold, it would be limited to one-half its weekly average consumption rate until one month after the new code is activated.

54. We propose that there be a certification process for each RespOrg to ensure that its equipment can support a circuit breaker model such as the one discussed above. Further, we expect the SMS database to enforce any circuit breaker models adopted. We seek comment on this proposed circuit breaker model. We also seek comment on the costs associated with development and support of this circuit breaker model by both the RespOrgs and the SMS administrator. 55. A second proposal would have a circuit breaker rule apply to the day-to-day operation of the SMS/800 database. The rule would apply to individual RespOrgs and would be based on the monthly rate of toll free number consumption. Each RespOrg's rate of consumption would be computed by averaging the five days with its highest rate of consumption during the previous month. If the RespOrg removed three times that rate in a single day, the circuit breaker rule would take effect. For example, assume that the past month had 20 working days, and that RespOrg A took 100 numbers each day for ten days, 200 numbers for two days, and 50 numbers for eight days. The five days with the highest consumption would be the two days on which RespOrg A took 200 numbers and three of the days on which RespOrg A took 100 numbers. The average rate of consumption for those five days would be 140 numbers. So, if RespOrg A took more than three times that average rate of consumption in a single day, or 420 numbers, RespOrg A would only be permitted to take 140 numbers per day for a period of one or two weeks. We believe that such a circuit breaker rule would have many benefits, including: (1) promoting efficient use of toll free numbers; (2) preventing warehousing; and (3) preventing RespOrgs with high speed modems from reserving large blocks of toll free numbers in rapid sequence. We seek comment on this proposal. We also seek additional proposals for circuit breaker models, as well as modifications to the proposals presented here. We believe that circuit breaker rules provide a long range, proactive approach to the problem of rapid depletion of toll free numbers. We ask, however, that commenters address whether other conservation proposals contained in this Notice of Proposed Rulemaking, such as the proposals that would reduce the amount of time a number is held in a status other than working,(n96) render circuit breaker rules unnecessary.

I. Tariffs

56. So that 888 service can be offered as quickly as possible, we take this opportunity to seek comment on the tariffing aspect of deploying a new code. We anticipate that the majority of tariffing issues will arise with regard to modifications to the LECs' 800database access tariffs.(n97) Specifically, we tentatively conclude that 888 service and subsequent toll free codes should be treated like existing 800 services. That is, we believe that 800 and 888 will be used interchangeably as toll free codes and thus are functionally the same. As a result, we think that the existing Part 69 provisions(n98) for 800 service would also cover 888 service and, we tentatively conclude, the LECs would not need to obtain a waiver of Part 69. We also seek comment on whether it is reasonable for the LECs to charge interim rates or make other provisions to deal with transition issues during the conversion to toll free operation of 888 service.(n99) We believe that the costs of providing 888 toll free service should be treated in accordance with the procedures we established for 800 service(n100) and that the LECs should file their tariff revisions on not less than 45 days' notice.

59. This is a non-restricted notice and comment rulemaking proceeding. Ex parte presentations are permitted, except during the Sunshine Agenda period, provided they are disclosed as provided in the Commission's Rules. See generally 47 C.F.R. Sections 1.1202, 1.1203, and 1.1206(a).

B. Initial Regulatory Flexibility Analysis

60. As required by Section 603 of the Regulatory Flexibility Act, the Commission has prepared an Initial Regulatory Flexibility Analysis ("IRFA") of the expected impact on small entities of the proposals suggested in this document. The IRFA is set forth in Appendix A. Written public comments are requested in the IRFA. These comments must be filed in accordance with the same filing procedures as other comments in this proceeding, but they also must have a separate and distinct heading designating them as responses to the Initial Regulatory Flexibility Analysis. The Secretary shall send a copy of the Notice of Proposed Rulemaking, including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration in accordance with paragraph 603(a) of the Regulatory Flexibility Act. Pub. L. No. 96-354, 94 Stat. 1164, 5 U.S.C. Section 601 et seq (1981).

C. Notice and Comment Provisions

61. Pursuant to applicable procedures set forth in Sections 1.415 and 1.419 of the Commission's Rules, 47 C.F.R. Sections 1.415 and 1.419, interested parties may filecomments on or before November 1, 1995, and reply comments are due on or before November 15, 1995. To file formally in this proceeding, you must file an original and four copies of all comments, reply comments, and supporting comments. If you want each Commissioner to receive a personal copy of your comments, you must file an original plus nine copies. You should send comments and reply comments to the Office of the Secretary, Federal Communications Commission, Washington, D.C. 20554. Comments and reply comments will be available for public inspection during regular business hours in the FCC Reference Center (Room 239) of the Federal Communications Commission, 1919 M Street, N.W., Washington, D.C. 20554.

62. IT IS FURTHER ORDERED that the PETITION FOR IMMEDIATE RULEMAKING filed by Tansin A. Darcos and Company is hereby GRANTED IN PART and DENIED IN PART.

Objectives: The objective of this proposal is to assure that, in the future, toll free numbers are allocated on a fair, equitable, and orderly basis. The proposal also seeks to assure that the transition period during which the numbers within one toll free code are approaching full consumption, and another code is introduced, is smooth and without disruption to existing customers or interruption in the availability of toll free numbers for new customers.

Legal Basis: The proposed action is authorized under Sections 1, 201-205, and 218 of the Communications Act of 1934, as amended, 47 U.S.C. Sections 151, 154, 201-205,and 218.

Reporting, Record Keeping and Other Compliance Requirements: The proposed rules may require Responsible Organizations ("RespOrgs") and 800 Service Providers to have a written request from a toll free subscriber before assigning a toll free number and may be required to retain such records for two years. The administrator of the SMS/800 database, currently Database Services Management, Inc. ("DSMI") will be required to submit periodic reports to the Commission on toll free number utilization. RespOrgs will be required to certify, under penalty of false statement, the accuracy of certain customer information.

Federal Rules Which Overlap, Duplicate, or Conflict with These Rules: None.

Description, Potential Impact and Number of Small Entities Involved: The proposals set forth in this Notice may have a significant economic impact on a substantial number of small entities. Toll free numbers are essential to many businesses both in terms of marketing and advertising products. Toll free numbers may also have an intrinsic value to many businesses.

Any Significant Alternatives Minimizing the Impact on Small Entities, Consistent with Stated Objectives: None.

I.  INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II.  BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
III. PETITION FOR IMMEDIATE RULEMAKING. . . . . . . . . . . . . . . . . . .  11
IV.  DISCUSSION
   A. Efficient Use of Toll Free Numbers
      1. The Communications Act . . . . . . . . . . . . . . . . . . . . . .  12
      2. Proposals
         a. Making Toll Free Numbers Available to Subscribers
           Who Need and
         b. Escrow Requirement. . . . . . . . . . . . . . . . . . . . . . .  14
         d. Personal Identification Numbers . . . . . . . . . . . . . . . .  20
   B. Mechanics of Opening New Toll Free Codes
      1. Background . . . . . . . . . . . . . . . . . . . . . . . . . . . .  22
      2. Reservation of New Toll Free Codes . . . . . . . . . . . . . . . .  23
      3. Phased Introduction of New Toll Free 
      4. Implementation Plan for Next Toll Free Code Beyond
        888
         a. Background. . . . . . . . . . . . . . . . . . . . . . . . . . .  26
         b. Proposals . . . . . . . . . . . . . . . . . . . . . . . . . . .  27
      5. Tracking Toll Free Number Usage. . . . . . . . . . . . . . . . . .  31
   C. Warehousing of Toll Free Numbers
      1. Background . . . . . . . . . . . . . . . . . . . . . . . . . . . .  32
      2. Proposals. . . . . . . . . . . . . . . . . . . . . . . . . . . . .  33
   D. Vanity Numbers
      1. Background . . . . . . . . . . . . . . . . . . . . . . . . . . . .  35
      2. Scope of Vanity Numbers. . . . . . . . . . . . . . . . . . . . . .  40
      3. Proposals
         a. Right of First Refusal. . . . . . . . . . . . . . . . . . . . .  41
         b. Assignment Based on Industrial Classification . . . . . . . . .  44
      1) allaying the fears of current 800 number subscribers
        that a competing business would obtain the equivalent
        number in a new toll free code; and 2) promoting
        the efficient allocation of the toll free number
        resource.  We seek comment on the feasibility of
        this approach, as well as its advantages and disadvantages.
         We ask commenters to address the reporting requirement
        and whether it would impose an undue burden on
        subscribers, RespOrgs, 800 Service Providers, and/or
        DSMI.  We also seek comment on the specificity
        required in SIC codes.  For example, it may be
        that a two-digit code does not provide enough specificity,
        while a four-digit code provides more specificity
        than is necessary.   Finally, we seek comment on
        how best to accommodate conglomerates that may
        fit within multiple classifications and whether
        such a proposal would delay the introduction of
        new toll free codes because of technical changes
        that would have to be made to the SMS database.
         c. Miscellaneous Proposals . . . . . . . . . . . . . . . . . . . .  46
      4.High Volume Numbers . . . . . . . . . . . . . . . . . . . . . . . .  47
   E. Toll Free Directory Assistance. . . . . . . . . . . . . . . . . . . .  48
   F. Administration of the Service Management System . . . . . . . . . . .  49
   G. Public Awareness and Industry Participation . . . . . . . . . . . . .  50
   H. Circuit Breaker Model
      1. Background . . . . . . . . . . . . . . . . . . . . . . . . . . . .  51
      2. Proposals. . . . . . . . . . . . . . . . . . . . . . . . . . . . .  52
I. Tariffs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  56
V.  PAPERWORK REDUCTION ACT . . . . . . . . . . . . . . . . . . . . . . . .  57
VI.  CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  58
VII.  PROCEDURAL MATTERS
   A. Ex Parte. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  59
   B. Initial Regulatory Flexibility Analysis . . . . . . . . . . . . . . .  60
   C. Notice and Comment Provisions . . . . . . . . . . . . . . . . . . . .  61
VII.  ORDERING CLAUSES. . . . . . . . . . . . . . . . . . . . . . . . . . .  62
APPENDIX A

Footnote 1 The 800 service access code may also be referred to as a Numbering Plan Area ("NPA").

Footnote 2 Toll free service has proven successful to businesses, particularly in the areas of customer service and telemarketing, because it provides potential customers and other persons with a free and convenient means of contacting those businesses. Personal toll free numbers are also becoming an increasingly popular means of communication. For example, parents can give their toll free number to a child away at college, enabling that child to call home free of charge at any time.

Footnote 3 For a definition of the "reserved" status of a toll free number, see infra paragraph 17.

Footnote 4 For a discussion of vanity numbers, see infra Section IV.D.

Footnote 5 A toll free number such as 800-NXX-XXXX consists of three parts: (1) a three digit numbering plan area ("NPA") or area code ("800"); (2) a three digit central office code ("NXX"); and (3) a four digit line number ("XXXX"). See Proposed 708 Relief Plan and 630 Numbering Plan Area Code by Ameritech-Illinois, 10 FCC Rcd 4596 (1995) ("Ameritech Order").

Footnote 6 Toll free service is known internationally as "free phone," while domestically the service became known as INWATS or 800 Service.

Footnote 7 See Provision of Access for 800 Service, Notice of Proposed Rulemaking, 102 FCC 2d 1387 (1986); Provision of Access for 800 Service, 4 FCC Rcd 2824, 2825 (1989) ("800 Order"), recon., 6 FCC Rcd 5421 (1991) ("800 Reconsideration Order"), further recon., 8 FCC Rcd 1038 (1993).

Footnote 8 Prior to the implementation of the database plan, carriers routed 800 traffic using the "NXX system." This system assigned specific blocks of 10,000 numbers to a particular interexchange carrier ("IXC") whether the carrier had plans to use all 10,000 numbers or not. Calls were routed to IXCs by the local exchange networks based on the NXX code in the dialed 800 number. Because NXX codes were assigned to particular IXCs, 800 subscribers could not change carriers without changing their 800 number. The Commission found this system to serve as a barrier to effective competition in the 800 service market. See Competition in the Interstate Interexchange Marketplace, Report and Order, 6 FCC Rcd 5880, 5904 (1991) (refusing to grant AT&T streamlined regulation of its 800 services because of the absence of 800 number portability); Competition in the Interstate Interexchange Marketplace, Second Report and Order, 8 FCC Rcd 3668, 3669 (1993) (finding that once the 800 database had been implemented, AT&T's 800 services were subject to substantial competition).

Footnote 9 "Portability" in this context refers to the ability of customers to retain the same number when changing their toll free service carrier. See 800 Order, 4 FCC Rcd at 2825.

Footnote 10 Id.

Footnote 11 The database architecture in the RBOC's plan was similar to the architecture used by AT&T before divestiture. This plan greatly improved how 800 numbers were administered when compared to the NXX system. First, an external database reduced the amount of switches in the network needed to store the routing information for each 800 number. Second, since switches no longer needed to be updated each time a new 800 number was introduced and because the information was contained in a single database, the time needed to introduce a new number was shortened. Third, the centralized database allowed for customized services for each 800 number subscriber, such as time of day routing. Time of day routing allows a subscriber with a nationwide customer service number, for example, to have its calls routed to an east coast location for certain hours of the day and to a west coast location for other hours. Finally, the centralized database provided for the most efficient use of the toll free number resource by leaving toll free numbers that were unassigned to 800 subscribers available to other new customers.

Footnote 12 See 800 Reconsideration Order, 6 FCC Rcd 5421 (1991). The Commission modified its original Order to permit each LEC to withdraw NXX access in favor of mandatory database access, provided that, by March 1993, no more than 3% of each LEC's 800 traffic experienced a database access time of greater than 5 seconds. The Commission also required each LEC offering mandatory database access, by March 1995, to meet the following requirements: (a) none of its database 800 traffic could experience an access time of greater than five seconds; and (b) the mean access time for all its 800 database traffic must be 2.5 seconds or less.

Footnote 13 SS7 is a protocol for an out-of-band common channel signaling network that overlays the public switched telephone network ("PSTN"). Out-of-band signaling allows carriers to use their networks more efficiently and enhances flexibility in call handling and processing because signaling information is transmitted on circuits separate from the circuits used to connect calling and called parties. See In the Matter of Rules and Policies Regarding Calling Number Identification Service -- Caller ID, FCC 95-187 (adopted May 4, 1995). SS7 uses signaling transfer points ("STPs"), which are high-capacity data switches that act as traffic coordinators, to route messages containing information about a particular call between network switches with switch signaling points ("SSPs") and service control points ("SCPs"), which are the regional databases. For an 800 database query, SSPs originate the messages, and STPs route queries to the SCPs. SCPs then send a response via the STP back to the SSP, where the information is used to process the telephone call.

Footnote 14 There are ten regional 800 SCP databases in the United States independently owned by Ameritech, Bell Atlantic, BellSouth, GTE, NYNEX, Pacific Telesis, SBC Communications, Southern New England Telephone Company ("SNET"), Sprint (Local), and US West. Canada is a member of the North American Numbering Plan, and its carriers also offer 800 portability to their customers and operate their own database. The Caribbean administrations of Anguilla, Antigua and Barbuda, Commonwealth of the Bahamas, Barbados, Bermuda, British Virgin Islands, Cayman Islands, Dominican Republic, Grenada, Jamaica, Montserrat, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Trinidad and Tobago, Turks and Caicos, Puerto Rico, and the U.S. Virgin Islands do not currently have portable 800 numbers, instead continuing to support the NXX system.

Footnote 15 See Provision of Access for 800 Service, 8 FCC Rcd 1423 (1993). See also Bell Operating Companies' Tariff for the Service Management System, Tariff F.C.C. No. 1; 800 Data Base Access Tariffs, Order, 8 FCC Rcd 3242 (1993) ("Suspension Order"); 800 Data Base Access Tariffs and the 800 Service Management System Tariff, Order Designating Issues for Investigation, 8 FCC Rcd 5132 (1993) ("Designation Order"); Order, 9 FCC Rcd 715 (1994) ("800 Cost Disclosure Order").

Footnote 16 For example, a RespOrg can be an IXC, a LEC, a wireless carrier, or a large organization like Westinghouse. A RespOrg may, but does not necessarily have to, act as an 800 Service Provider, which is a telecommunications company that offers 800 service. Typically, a subscriber will contact its IXC to obtain a toll free number. That IXC will generally act as the subscriber's RespOrg, as well as its 800 Service Provider, and will reserve a toll free number by accessing the SMS database. Once the RespOrg enters specific subscriber routing information in the SMS database, the number is assigned to the subscriber. When the routing information has been loaded into the SCPs, the number is working and can be utilized to complete toll free calls.

Footnote 17 Industry Guidelines for 800 Number Administration, §1 (June 8, 1995) ("Industry Guidelines").

Footnote 18 Id. at §2.2.5.

Footnote 19 A RespOrg is responsible for accepting, referring, coordinating, and/or resolving all trouble reports related to an 800 service for which it is identified as the RespOrg in the SMS/800 database. Such troubleshooting responsibilities include providing around the clock contact numbers for receiving subscriber trouble reports and advising its subscriber and the affected 800 Service Provider of the status of service during resolution of an 800 problem. Id. at §1.3.

Footnote 20 Prior to 1986, AT&T was the only IXC capable of completing 800 calls. In May 1993, when 800 number portability was first offered, there were approximately three million 800 numbers assigned to various IXCs, with most of these numbers being assigned to AT&T. By July 1, 1995, over seven million 800 numbers were assigned.

Footnote 21 Letter from Kathleen M.H. Wallman, Chief of the Common Carrier Division, FCC to Michael Wade, President, Database Service Management, Inc., dated June 13, 1995 ("Wallman Letter of June 13, 1995"). For a definition of the "assigned" status of a toll free number, see infra para. 17.

Footnote 22 Traditionally, NPAs had either a "0" or a "1" as the middle digit. In January 1995, the industry introduced interchangeable NPAs ("INPAs") because there were no more available NPA codes of the 0/1 format. The introduction of INPAs permits the use of the digits two to nine in the middle position of the NPA, resulting in area codes such as 234.

Footnote 23 The industry adopted the assignment of 888 as the first relief toll free code and the reservation of 877, 866, 855, 844, 833, and 822 as the subsequent toll free relief codes at the Industry Numbering Committee ("INC") meeting in February 1995. See Industry Numbering Committee Issue Identification Form, dated March 3, 1995.

Footnote 24 See Letter from Donald F. Evans, Vice President of Federal Regulatory Affairs, MCI to Kathleen M.H. Wallman, Chief of the Common Carrier Bureau, FCC, dated May 26, 1995; Letter from Marie T. Breslin, Director of FCC Relations, Bell Atlantic to Kathleen M.H. Wallman, Chief of the Common Carrier Bureau, FCC, dated June 5, 1995; Options from 800 National Product Team, dated June 6, 1995.

Footnote 25 The 888 deployment date has been advanced to March 1, 1996, and the Bureau continues in its efforts to advance that date even further.

Footnote 26 See Letter from Kathleen M.H. Wallman, Chief of the Common Carrier Bureau, FCC to Michael Wade, President, Database Service Management, Inc., dated June 9, 1995 ("Wallman Letter of June 9, 1995"); Wallman Letter of June 13, 1995.

Footnote 27 Wallman Letter of June 9, 1995.

Footnote 28 There have been three different allocation plans in effect since conservation measures were imposed on June 14, 1995. Each new plan has responded to more detailed market share analysis as well as input from the industry and interested parties. The firstconservation plan, which was effective June 14, 1995, allotted every RespOrg 200 numbers a week. See Wallman Letter of June 13, 1995. The Bureau refined this scheme to permit customers to continue to seek 800 numbers from the carriers to which they would ordinarily have turned for such services. Under the second conservation plan, which was effective June 22, 1995, each RespOrg received a minimum of 25 numbers per week. Since there are 138 RespOrgs, 3,450 numbers were taken from the weekly allocation of 28,000 numbers to meet this allotment, leaving 24,550 to be assigned as follows: each RespOrg received a share of the remaining 24,550 numbers that equaled the product of 24,550 and the percentage of all 800 numbers in working, assigned, and reserved status on August 1, 1994, held by that RespOrg on August 1, 1994. See Letter from Kathleen M.H. Wallman, Chief of the Common Carrier Bureau, FCC to Michael Wade, President, Database Service Management, Inc., dated June 21, 1995 ("Wallman Letter of June 21, 1995"). The Bureau also imposed reporting requirements upon the RespOrgs to permit the Bureau to audit compliance with the allocation plan. Id. Under the third, and current, conservation plan, weekly allocation of 800 numbers is based on both a RespOrg's market share and the change in its working numbers. See Letter from Kathleen M.H. Wallman, Chief of the Common Carrier Bureau, FCC to Michael Wade, President, Database Service Management, Inc., dated August 17, 1995 ("Wallman Letter of August 17, 1995). The Bureau believes that this approach is more rational and more sensitive to competitive trends because the current approach considers not only the market share of each RespOrg at a specific point in time, but also the growth that RespOrg experienced in 1994. The current allocation plan took effect on August 21, 1995. Id. For a definition of "working," "assigned," and "reserved" status, see infra para. 17.

Footnote 29 The aging process is defined as the period of time between disconnection or cancellation of a toll free number and the point at which that toll free number may be reassigned to another customer. Industry guidelines set the aging process at six months, with a provision that the period may be reduced to four months once the toll free resource is 95% exhausted. See Industry Guidelines at §2.2.6. Effective June 14, 1995, conservation measures imposed by the Bureau reduced the aging process to four months. See Wallman Letter of June 13, 1995.

Footnote 30 Reserve status is achieved at the point in time at which a toll free number has been held by a RespOrg for its customer. Under industry guidelines, a toll free number may be held in this status for up to 60 days. See Industry Guidelines at §2.4.3. Effective June 21, 1995, conservation measures imposed by the Bureau reduced the length of time a RespOrg can hold a number in reserve to 45 days. See Wallman Letter of June 21, 1995. This 45 day limit represents an increase from the initial 15 day limit placed upon toll free numbers being held in reserve status. See Wallman Letter of June 13, 1995.

Footnote 31 See In the Matter of NPA 800 and NPA 888, Petition for Immediate Rulemaking, filed July 13, 1995.

Footnote 32 Id.

Footnote 33 Id. at 3, 4.

Footnote 34 47 U.S.C. §151.

Footnote 35 For example, under one interexchange carrier's calling plan offering, each customer is automatically assigned an 800 number and a four digit PIN. There exists the distinct possibility that such numbers may be rarely, if ever, used by subscribers. At the same time, those numbers are removed from the SMS/800 database and are unavailable for subscribers that may actually need the numbers and would put them to productive use.

Footnote 36 A RespOrg initially pays the 70 cent "customer record administration" fee when it reserves a toll free number from the SMS database and continues to pay that fee when the number is in "assigned," "working," or "disconnect" status. See Bell Operating Companies' Tariff for the Service Management System, Tariff F.C.C. No. 1, § 4.2(C). It is only when the number is returned to the spare pool or ported to another RespOrg that the original RespOrg ceases paying the administration fee. See supra para. 17 for a definition of "assigned," "working," and "disconnect" status.

Footnote 37 PIN technology refers to the use of a personal identification number ("PIN") in conjunction with a toll free number. See infra Section IV.A.2.d. for a further discussion of PIN technology.

Footnote 38 See infra note 69 for a definition of warehousing.

Footnote 39 See infra note 72 for a definition of hoarding.

Footnote 40 See In the Matter of Administration of the North American Numbering Plan, Report and Order, CC Docket No. 92-237, FCC 95-283 (adopted July 13, 1995) ("NANP Order").

Footnote 41 See Industry Guidelines at §2.2.1.
800 Numbers are not to be treated as commodities which can
be bought or sold, and no individual or entity is granted a
proprietary interest in any 800 number assigned. Resp Orgs
and 800 Service Providers are prohibited from selling, bartering,
or releasing for a fee (or other consideration) any 800 Number.

Reserving, Assigning, or activating (Working) 800 Numbers
by Resp Orgs, 800 Service providers, or Customers for the
primary purpose of selling, brokering, bartering, or releasing
for a fee (or other consideration) that 800 Number is prohibited.

Footnote 42 Id. at § 2.4.5.

Footnote 43 Id. at §2.4.4.

Footnote 44 Id. at §2.4.3.

Footnote 45 Id. at §2.4.2.

Footnote 46 Id. at §2.4.6.

Footnote 47 Id. at §2.4.7.

Footnote 48 Id. at §2.4.8.

Footnote 49 Id. at §2.4.9.

Footnote 50 Id. at §2.4.1.

Footnote 51 Id. at §2.2.6.

Footnote 52 Industry guidelines state that the minimum aging period may be reduced to four months once the toll free resource is 95% exhausted. Id. at §2.2.6. Conservation measures recently imposed by the Commission on 800 numbers similarly reduced the aging period to four months. See Wallman Letter of June 13, 1995.

Footnote 53 See Personal Communications Industry Association's Proposed Approach for the Toll-Free Resource (July 19, 1995).

Footnote 54 See Industry Guidelines at §2.3.1 ("[s]pecific 800 Number requests are honored based upon availability, on a first-come, first-served basis, at the time the reservation request is initiated by a Resp Org into SMS/800").

Footnote 55 Id. at §2.2.5.

Footnote 56 Id. at §2.3.2. For a discussion of a Commission proposal to reduce that 60 day reservation period, see supra Section IV.A.2.c.

Footnote 57 Currently, six RespOrgs reserve toll free numbers using mechanized generic interface ("MGI"), which provides a direct interface between those RespOrgs' computer operations systems and the SMS/800 database. MGI permits those six RespOrgs to perform number administration and record administration functions and allows for processing of large volumes of action very quickly. In November 1994, Southern New England Telephone Company filed a petition in which it was argued that the current reservation system is skewed in favor of larger RespOrgs with more advanced technology. A Report and Order will soon be issued in that proceeding.

Footnote 58 For a discussion of vanity numbers, see infra Section IV.D.

Footnote 59 When a toll free number is changed to working status, the SMS will send a data message containing routing information to all SCPs. It is only after this process is completed that the SCP has the information necessary to make the toll free number active. Similar data messages are sent from the SMS to the SCPs over the same data links when there is a change, for example, in Service Provider or vertical service.

Footnote 60 Exhaust of area codes occurs when no spare numbers remain in the SMS/800 database for assignment to the general public.

Footnote 61 See supra note 13 for a discussion of SCPs.

Footnote 62 Switches with SSPs ("switch signaling points") have SS7 capability and will query the database for toll free number information. Switches without SSPs must be able to route the new toll free code to an SSP. Those non-SSP switches must be able to distinguish a toll free number from a POTS ("plain old telephone system") number so that: (1) the toll free number is routed to the SSP switch that will perform the database query; and (2) the proper billing record is generated and the called party, rather than the calling party, will be charged for the toll free call. See supra note 13 for a further discussion of SS7 and SSPs.

Footnote 63 LECs and their interconnecting carriers will link their networks at either a LEC access tandem or a LEC end office. The choice of network topology, i.e., whether to use access tandems or end offices, is generally one made by the interconnecting parties based on distance between the two carriers and the amount of traffic expected to flow between them. For example, AT&T may decide to interconnect at an end office in downtown Chicago because of high traffic volume, but may decide to connect to an access tandem in a smaller, less populated area where the volume of traffic is lower. Interconnecting carriers may be IXCs, competitive access providers ("CAPs"), wireless carriers, or other independent LECs.

Footnote 64 See 800 Reconsideration Order, 6 FCC Rcd 5421. In that Order, the Commission stated that, by March 1, 1995, no 800 traffic for the RBOCs or GTE could experience an access time of greater than five seconds, and the mean access time for all 800 traffic carried by these carriers had to be 2.5 seconds or less.

Footnote 65 Under current industry guidelines, resource exhaust is defined as "an emergency/ situation where the industry has agreed to invoke conservation measures to delay exhaustion of the toll fee [sic] number resource." See Industry Guidelines at page iv. The conservation mode is invoked by industry when relief will not be available at the projected time of 90% fill rate of the current toll free code. Id.

Footnote 66 See supra paragraph 17 for an explanation of the categories contained in §2.4 of the Industry Guidelines.

Footnote 67 The information is available in the public reference room maintained by the Industry Analysis Division ("IAD") and is published in Trends in Telephone Service, an IAD publication that tracks the usage of toll free numbers on a semiannual basis.

Footnote 68 See Industry Guidelines at §2.2.5 ("[a]t any given time, each Resp Org entity can have up to 1000 numbers reserved or 15% of its total quantity of working 800 [s]ervice numbers, whichever is greater").

Footnote 69 The term warehousing is used to describe a RespOrg obtaining toll free numbers from the database without having an actual subscriber for whom those numbers are being reserved. Warehousing results in the RespOrg's acquiring and holding scarce toll free numbers beyond the RespOrg's immediate needs and prevents the distribution of those numbers to RespOrgs that have actual subscribers needing working toll free numbers.

Footnote 70 See Wallman Letter of June 13, 1995.

Footnote 71 See Letter from Kathleen M.H. Wallman, Chief of the Common Carrier Bureau, FCC to Michael Wade, President, Database Service Management, Inc., dated June 26, 1995 ("Wallman Letter of June 26, 1995").

Footnote 72 Hoarding occurs when a toll free subscriber acquires more numbers from a RespOrg than it intends to immediately use. This practice protects the subscriber in the event of a toll free number shortage, but it results in toll free numbers remaining inactive and unavailable for subscribers in need of working numbers. We note that the Commission has received a number of complaints about hoarding of 800 numbers. See Options from 800 National Product Team, dated June 6, 1995.

Footnote 73 See, e.g., 47 U.S.C. §§502 and 503; 47 C.F.R. §1.80.

Footnote 74 Persons making false statements can be punished by fine or imprisonment under the Communications Act. See, e.g., 47 U.S.C. §220(e). Title 18 also provides penalties for false statement. See 18 U.S.C. §1001.

Footnote 75 See, e.g., Letter from J. C. Reed, Government Employees Insurance Company to Reed Hundt, Chairman of the FCC, dated June 5, 1995; Letter from Christopher G. McCann, 1-800-FLOWERS to Reed Hundt, Chairman of the FCC, dated July 11, 1995; Letter from John C. Hartman, 800-Discount Club, Inc. to Kathleen M.H. Wallman, Chief of the Common Carrier Bureau, FCC, dated July 24, 1995; Letter from Arley M. Clark, Bass Pro Shops to Reed Hundt, Chairman of the FCC, dated July 25, 1995; Letter from Robert Jenny, Warner-Lambert Company to Reed Hundt, Chairman of the FCC, dated July 25, 1995; Letter from Brooke R. Weisleder, Weisleder Tele-Communications, Inc. to Reed Hundt, Chairman of the FCC, dated July 26, 1996; Letter from Eddie Aldredge, Selectel to Reed Hundt, Chairman of the FCC, dated July 26, 1995; Letter from William A. Elmer, HTH Inc. to Reed Hundt, Chairman of the FCC, dated July 26, 1995; Letter from Linda Thompson Orfanos, Kemper National Insurance Companies to Reed Hundt, Chairman of the FCC, dated July 27, 1995;Letter from Jane A. Murphy, Philbrick's Sports Super Store to Kathleen M.H. Wallman, Chief of the Common Carrier Bureau, FCC, dated July 28, 1995; Letter from Mark J. McSweeney, New England Serum Company to Reed Hundt, Chairman of the FCC, dated July 28, 1995; Letter from Charles P. Cannata, The Money Store to Reed Hundt, Chairman of the FCC, dated July 28, 1995; Letter from Kerry P. Lauricella, Repairs, Inc. to Reed Hundt, Chairman of the FCC, dated July 31, 1995; Letter from William M. Bullard, Peachtree Fabrics, Inc. to Reed Hundt, Chairman of the FCC, dated August 2, 1995; Letter from Jeffrey A. Diskin, Hilton Hotels Corporation to Reed Hundt, Chairman of the FCC, dated August 3, 1995; Letter from Robert E. Dirks, Hilton Hotels Corporation to Reed Hundt, Chairman of the FCC, dated August 3, 1995; Letter from John C. DuBose, Barnett Bank to Reed Hundt, Chairman of the FCC, dated August 3, 1995; Letter from Eugene D. Gauthreaux, Terminix to Reed Hundt, Chairman of the FCC, dated August 4, 1995; Letter from John L. Brinker, Hilton Hotels Corporation to Reed Hundt, Chairman of the FCC, dated August 7, 1995; Letter from Christine Brosnahan, Hyatt Hotels & Resorts to Reed Hundt, Chairman of the FCC, dated August 7, 1995; Letter from Jeffery Martin, American Magnetic Media Inc. to Reed Hundt, Chairman of the FCC, dated August 7, 1995; Letter from Sam L. Perry, Hilton Reservations Worldwide to Reed Hundt, Chairman of the FCC, dated August 7, 1995; Letter from Ronald D. Ryan, Ryan International Airlines to Reed Hundt, Chairman of the FCC, dated August 8, 1995; Letter from Larry E. Tramel, Brinks Home Security to Reed Hundt, Chairman of the FCC, dated August 8, 1995; Letter from Julie Stewart, Rosenbluth International to Reed Hundt, Chairman of the FCC, dated August 9, 1995; Letter from Bob Heise, Norwest Technical Services to Reed Hundt, Chairman of the FCC, dated August 10, 1995; Letter from Vincent P. Keenan, Jr., USA Loan, Inc. to Reed Hundt, Chairman of the FCC, dated August 10, 1995.

Footnote 76 NANP Order, CC Docket No. 92-237, FCC 95-283 (adopted July 13, 1995).

Footnote 77 The Need to Promote Competition and Efficient Use of Spectrum for Radio Common Carrier Services, Memorandum Opinion and Order, 59 Rad. Reg. (P&F) 1275, 1284 (1986).

Footnote 78 Ameritech Order, 10 FCC Rcd 4596.

Footnote 79 See Personal Communications Services N00 NXX Code Assignment Guidelines,
para. 2.10 (April 7, 1995 Revision) ("PCS N00 NXX code(s) are a public resource and administrative assignment of the codes does not imply ownership of the resource by the entity performing the administrative function, nor does it imply ownership by the entity to which it is assigned").

Footnote 80 See supra note 41 for language from the Industry Guidelines prohibiting the buying, selling, brokering, bartering, or releasing for a fee of 800 numbers,

Footnote 81 See 555 NXX Assignment Guidelines, para. 2.9 (April 7, 1995 Revision).
Administrative assignment of the 555 numbers by an entity does not imply ownership of the resource by the entity performing the administrative function, nor does it imply ownership by the entity to which it is assigned. The assignee has the right to use an assigned number in accordance with these guidelines.

Footnote 82 See Burris v. South Central Bell Telephone Company, 540 F. Supp. 905, 907
(S.D. Miss. 1982) ("[t]he subscriber has no property right to the telephone number or any other call number desig