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File pnmc5021 (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ************************************************************************* DA 95-2141 Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 Southern New England Telephone Company ) Expedited Petition for Emergency Interim Relief,) Preliminary Injunction and Stay ) REPORT AND ORDER Adopted: October 6, 1995 Released: October 10, 1995 By the Chief, Common Carrier Bureau: I. INTRODUCTION 1. In this proceeding, we address a petition filed by Southern New England Telephone Company ("SNET") that asks the Commission to require the North American Numbering Plan Administrator ("NANPA") to honor SNET's request for assignment of certain "800-555" telephone numbers. SNET has also asked the Commission to investigate the reservation process for all toll free numbers. In this Report and Order, we grant SNET's request to the extent indicated herein. II. BACKGROUND 2. In 1990, various applicants inquired about obtaining 800-555 numbers to offer competitive Directory Assistance services. At that time, 800-555 numbers were dedicated exclusively to the provision of competitive Directory Assistance services and were unavailable for general assignment. The NANPA stated that, for technical reasons, 800-555 numbers could not be assigned until 800 number portability was implemented. In 1993, following the implementation of number portability, the NANPA continued to hold reservation of all 800- 555 numbers in abeyance until the industry agreed on specific guidelines to govern their assignment. The NANPA advised parties requesting 800-555 numbers to participate in meetings organized by the Industry Numbering Committee ("INC"). 3. In June and September 1993, SNET submitted applications to the NANPA for certain 800-555 numbers in an attempt to enter the national 800 Directory Assistance market. In November 1993, NANPA denied SNET's request and permitted the industry additional time to establish 800-555 guidelines. The NANPA stated that it would be inappropriate to assign the numbers prior to industry approval of 800-555 assignment guidelines. At an industry meeting to determine such guidelines in March 1994, the INC reached consensus that 800-555 numbers would be returned to the SMS/800 database for general availability and would not be reserved for Directory Assistance. The INC forwarded its recommendation to the Carrier Liaison Committee's Ad Hoc Database Committee ("Ad Hoc Committee"), which concurred with INC's decision in May 1994. Regarding previous requests for 800-555 numbers, the Ad Hoc Committee stated that "[o]utstanding requests for number assignments within the 800- 555 NXX should be honored by the NANPA based on the date received." Prior to submission to the INC in June 1994, however, the Ad Hoc Committee tempered its language to a "recommendation" to honor prior requests. At the August 1994 INC meeting, however, industry consensus was reached to assign 800-555 numbers, without condition, beginning December 15, 1994 and not to honor any prior requests. Nonetheless, for reasons unclear from the record in this proceeding, nine 800-555 numbers were assigned prior to December 15, 1994, and thus apparently were not governed by the industry consensus. The 800-555 assignment issue reached final closure at the September 1994 INC meeting, and the industry was officially notified that the INC had reached a consensus resolution that 800-555 would be released for general availability and prior requests would not be honored. 4. On November 23, 1994, SNET filed a petition with the Commission addressing three areas of concern. First, SNET sought a preliminary injunction to prevent DSMI from returning the previously requested 800-555 numbers to the database for general availability until the Commission had investigated and approved the procedures used to issue the numbers. Second, SNET asked the Commission to direct NANPA to assign previously requested 800-555 numbers in the order in which they were requested. Third, SNET asserted that the SMS/800 reservation process is inherently skewed in favor of large Responsible Organizations ("RespOrgs"), denying smaller RespOrgs an opportunity to obtain numbers and increase competition in the toll free market. 5. In response to SNET's first request that a preliminary injunction be issued to prevent previously requested 800-555 numbers from being returned to the database, the Common Carrier Bureau's Industry Analysis Division ("IAD") sent a letter to DSMI on December 8, 1994, requesting that DSMI refrain from issuing 17 800-555 numbers that had been requested by parties up to the time SNET's Petition was filed, including the five numbers requested by SNET. Upon being informed that the 17 numbers in question did not constitute all of the previously requested 800-555 numbers, the Chief of the IAD requested in a subsequent letter that DSMI "refrain from issuing any previously requested numbers." This request resulted in the withholding of 13 additional 800-555 numbers which had been previously requested. Therefore, a total of 30 800-555 numbers was withheld as a result of IAD's subsequent letter. Accordingly, 800-555 numbers, with the exception of those withheld at Commission request, became available for general assignment on December 15, 1994. Of the 800-555 numbers available, approximately 90% were assigned to a single RespOrg within the first ten minutes of database availability through its use of mechanized generic interface. III. COMMENTS 6. In comments supporting the petition, TeleCenter asks the Commission to exercise plenary jurisdiction and grant SNET's petition. TeleCenter asserts that the INC, at its August 1994 meeting, arrived at its decision to assign 800-555 numbers, without condition, from the 800 database and not to honor any prior requests after polling attendees that were almost exclusively Local Exchange Carriers ("LECs") and Interexchange Carriers ("IXCs"). TeleCenter notes that this decision was inconsistent with an Ad Hoc Committee decision in May 1994 to honor previous requests for 800-555 numbers. TeleCenter argues, therefore, that there was no industry consensus because the two industry groups reached directly opposite conclusions regarding the honoring of prior requests. Further, TeleCenter asserts that in all other cases, the NANPA has "grandfathered" prior assignment requests when a new numbering resource was opened for general availability. 7. Bellcore states that TeleCenter neglected to include information from the June 16, 1994 INC meeting, at which the language of the May proposal to honor prior requests was changed such that the requests would be "considered," rather than necessarily granted. Bellcore also responds that all attendees at the August 1994 INC meeting, including SNET, were polled regarding the decision not to honor prior requests. With regard to "grandfathered" numbers, Bellcore states that NANPA has previously grandfathered numbers already in use but has not grandfathered numbers not yet in use. 8. In their comments, ATIS and Bellcore detail the industry consensus process and its application to 800-555 numbers, noting that participants were afforded the opportunity to raise objections and concerns. ATIS argues that, under the INC procedures, silence on the part of a participant at the time of issue resolution is considered agreement with the proposed resolution. ATIS states that, at the September 1994 INC meeting, the 800-555 issue and the issue of treatment of prior requests reached final closure. Despite SNET's attendance and opposition at this and previous meetings, Bellcore stated that SNET failed to follow INC procedures properly by recording with the INC secretary its objection to the group's decision that prior requests not be honored. US West similarly notes that SNET's attendance and failure to object formally effectively joined SNET in the industry consensus. ATIS asserts that five months passed from the time the issue was submitted until closure, during which time all parties were afforded an opportunity to voice their concerns. Bellcore argues that, since SNET failed to formally object at the time consensus was reached and also failed to object in the ensuing months, SNET has failed to establish irreparable harm. 9. US West argues that if the Commission overturns industry consensus, it would set a dangerous precedent. Parties would have little incentive to participate in the industry process if a single member could bypass the process by directly petitioning the Commission for relief. The Commission could potentially be overwhelmed with such appeals of industry consensus decisions. US West further states that the Commission has previously declared that it will not assume the role of an appellate body in such matters. As a policy matter, Bellcore asserts that granting SNET's petition would nullify the industry consensus process that the Commission has endorsed. Further, permitting reservation of numbering resources far in advance of their general availability would set a dangerous precedent. While supporting SNET's right to petition the Commission directly over a grievance, MCI supports deferring to industry consensus and releasing the withheld 800-555 numbers to the SMS/800 database for general availability. 10. TeleCenter, EMI, and Cleartel agree with SNET's contention that the process by which toll free numbers are released favors large RespOrgs. TeleCenter, pointing to the fact that a single large RespOrg reserved the vast majority of 800-555 numbers, claims that the "dial-in" assignment procedure is unfair. TeleCenter argues that the decision to return the 800-555 numbers to the SMS/800 database, with the exception of those withheld at the request of the Commission, created a "land rush" whereby RespOrgs with better technology and more terminals were able to monopolize the number assignment process. TeleCenter, EMI, and Cleartel contend that this method of distribution is discriminatory, contrary to Commission policy, and an impediment to competition. The parties seek Commission intervention to protect the smaller, less technologically-advanced RespOrgs. EMI suggests a three step process to remedy the 800-555 release and to prevent future stockpiling of numbers. First, EMI suggests that the Commission require that only one percent of the numbers within a new toll free code can be reserved by a single RespOrg for the first 180 days from the date that numbers are first made available. Second, EMI proposes that during the first 60 days after reservation, any RespOrg holding a toll free number that is not assigned to a customer must return the number to the database if another RespOrg has a customer seeking that number. Third, EMI recommends that any RespOrg reserving more than one percent of the recently released 800-555 numbers should be required to return those numbers unless they have been assigned to customers. 11. Sprint suggests another remedy, whereby SNET would be assigned one of the five 800-555 numbers that it requested. In addition, Sprint seeks greater Commission oversight in the assignment of toll free numbers. Given the extremely high demand for 800- 555 numbers, Sprint believes that its solution reasonably balances the needs of all parties involved. 12. Responding to claims of discrimination, US West points out that the number reservation system can be accessed by any personal computer with a valid security code. US West argues that, while larger RespOrgs may have more personal computers than smaller RespOrgs, even a "small" RespOrg like SNET owns hundreds, perhaps thousands, of personal computers. US West states that it cannot be said that smaller RespOrgs have no reasonable opportunity to secure toll free numbers of their choice. Sprint contends that, as a matter of economics, a larger RespOrg will have a greater number of requests for toll free numbers and will need greater access to the database, for which it pays substantial recurring monthly charges. Sprint argues that when attempting to access the SMS/800 database, RespOrgs are not given preferential treatment based upon their identity, and the mere fact that large RespOrgs have purchased more access facilities does not render the system discriminatory. IV. DISCUSSION 13. Based on our review of the record, we conclude that SNET's Petition should be granted for several reasons. First, there remains a question as to whether industry consensus was reached regarding the honoring of prior requests for 800-555 numbers. While industry representatives state that consensus was reached not to honor prior requests at the August 1994 INC meeting, some parties have disputed that view based on the May 1994 meeting at which the Ad Hoc Committee stated that outstanding requests for 800-555 numbers should be honored. It is not our intention to disturb the industry consensus process, but based on the record, we cannot conclude that there was consensus in this instance. The fact remains that some numbers were assigned during the period in which the requesting parties were advised that 800-555 numbers were not available for assignment. We expect that numbers will be assigned on a non-discriminatory basis, and the grandfathering of some requests and not others undermines that expectation. 14. Second, regardless of whether there was industry consensus, the fact that some numbers were assigned after parties were told that no 800-555 numbers would be available for assignment, raises questions of fairness. We agree with Bellcore that numbers cannot be reserved before they are generally available for assignment. Allowing the grandfathering of such requests could set a dangerous precedent and potentially could wreak havoc on the number reservation process. In this instance, however, numbers were assigned despite the lack of general availability, and thus fairness dictates that the other prior requests be honored. 15. Finally, we believe that a compelling reason to make the requested numbers available involves the promotion of competition in the market for Directory Assistance. We have previously encouraged competitors to enter the toll free Directory Assistance market, and the parties requesting the disputed 800-555 numbers have indicated they will use the numbers for that purpose. To hold the numbers in abeyance any longer will delay the development of a competitive Directory Assistance market. 16. We also agree with SNET that the procedures in place for the reservation of toll free numbers deserve a thorough investigation. SNET and a number of the commenting parties have raised valid concerns about the fairness of the number assignment process and access to the SMS/800 database. Such concerns are being addressed in the Toll Free NPRM. 17. Accordingly, we order DSMI, with support from NANPA as necessary, to assign the 30 numbers held in suspension since December 1994, to the first party to have requested each. We direct DSMI to honor SNET's second letter, dated September 28, 1993, since that is the only request cited in the SNET Petition. DSMI should assign SNET only the primary number listed in the September 28th letter because SNET wanted only one 800-555 number to provide competitive Directory Assistance services. SNET is, therefore, ineligible to receive any of its alternate choices. 18. Of the remaining 29 numbers, 26 were requested by only one party, while the remaining three numbers were requested by multiple parties. Included in the 26 numbers requested by only one party are three of SNET's four alternate choices. Since these three numbers were not requested by any other party and because SNET will receive its first choice number, these numbers should be returned to the SMS/800 database for general assignment according to industry guidelines. Each of the remaining 23 numbers requested by only one party should be assigned to the requesting party. 19. Of the three numbers requested by multiple parties, SNET's fourth alternate choice was also requested by another party; that other requesting party should be assigned the number. The remaining two numbers for which multiple parties submitted requests should be assigned on the basis of first in time. V. ORDERING CLAUSES 20. Accordingly, IT IS ORDERED that, pursuant to authority contained in Sections 1, 4(i), 4(j), 201-205 of the Communications Act of 1934, as amended, 47 U.S.C.  151, 154(i), 154(j), 201-205, and 47 C.F.R.  0.291 and 0.91, SNET's Petition is hereby GRANTED to the extent indicated herein. 21. IT IS FURTHER ORDERED that DSMI must assign the 30 numbers held in suspension since December 1994 according to the instructions set forth in paragraphs 17 through 19. Federal Communications Commission ______________________________ Kathleen M.H. Wallman Chief Common Carrier Bureau APPENDIX A 800-555 NUMBERS WITHHELD DECEMBER 8, 1994 800-555 Number Number of Entities Requesting 1. 800-555-1111 1 2. 800-555-1234 1 3. 800-555-1313 1 4. 800-555-1411 2 5. 800-555-1800 2 6. 800-555-2222 1 7. 800-555-3291 1 8. 800-555-3366 1 9. 800-555-3697 1 10. 800-555-4329 1 11. 800-555-4411 1 12. 800-555-4630 1 13. 800-555-4636 3 14. 800-555-4674 1 15. 800-555-5478 1 16. 800-555-5555 3 17. 800-555-7638 1 APPENDIX B 800-555 NUMBERS WITHHELD DECEMBER 14, 1994 800-555 Number Number of Entities Requesting 1. 800-555-2255 1 2. 800-555-2273 1 3. 800-555-3278 1 4. 800-555-3282 1 5. 800-555-3355 1 6. 800-555-4357 1 7. 800-555-6398 1 8. 800-555-6453 1 9. 800-555-7363 1 10. 800-555-7378 1 11. 800-555-7874 1 12. 800-555-8324 1 13. 800-555-8737 1 APPENDIX C LIST OF COMMENTERS 1. Alliance for Telecommunications Industry Solutions, Inc. ("ATIS") 2. Bell Communications Research, Inc. ("Bellcore") 3. BellSouth Telecommunications, Inc. ("BellSouth") 4. Cleartel Communications, Inc. ("Cleartel") 5. Database Service Management, Inc. ("DSMI") 6. EMI Communications Corporation ("EMI") 7. Frontier Communications International, Inc. ("Frontier") 8. MCI Telecommunications Corporation ("MCI") 9. Pacific Bell 10. Reed Sendecke, Inc. 11. Southern New England Telephone Company ("SNET") 12. Sprint Communications Company, L.P. ("Sprint") 13. TELCO Planning, Inc. 14. U S West Communications ("U S West")