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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Federal Communications Commission DA 98-565 Before the Federal Communications Commission Washington, D.C. 20554 In the Matters of ) ) US West, Inc. ) NSD File No. L-98-43 Petition for Reconsideration or Waiver ) ) and ) ) BellSouth Corporation ) NSD File No. L-98-34 Motion for Stay ) ) of Blocking and Unblocking ) Requirements for Transmission of Calling ) Party Number (CPN) from Party Lines ) MEMORANDUM OPINION and ORDER Adopted: March 24, 1998 Released: March 24, 1998 By the Chief, Network Services Division: I. INTRODUCTION 1. This Memorandum Opinion and Order addresses a Petition for Reconsideration or Waiver ("Petition for Reconsideration") filed by US WEST, Inc. (US West), two comments in support of the petition filed by the Bell Atlantic telephone companies (Bell Atlantic) and BellSouth Corporation (BellSouth), and a Motion for Stay filed by BellSouth. The Petition for Reconsideration seeks reconsideration of the Commission's caller ID blocking and unblocking rules that require that dialing *67 and *82 operate to block and unblock, respectively, transmission of calling party number (CPN) on a per-call basis from customers with party line service. Alternatively, the Petition for Reconsideration seeks a waiver of those rules with respect to party line customers connected to the public switched telephone network (PSTN) via Nortel DMS-100 switches. The Motion for Stay seeks a stay of the Commission's caller ID blocking and unblocking requirements for all party lines until the Commission addresses the Petition for Reconsideration. 2. For the reasons stated herein, we grant the alternative remedy requested in US West's petition and waive the specific blocking code requirements for blocking and unblocking CPN passage from party lines served by Nortel DMS-100 switches, so long as dialing *67 acts to "toggle" CPN transmission, as explained further in this Order. This grant of waiver applies only to party lines served by Nortel DMS-100 switches for as long as party line service remains available in the carriers' territories. For the reasons stated herein, we also deny BellSouth's Motion for Stay. 3. We further require that carriers with party line customers who have selected per- line blocking and are served by DMS-100 switches provide notice to these customers that *82 will not function to unblock a blocked party line, but rather that *67 will "toggle" the line. The notice should also state that by using *67, the caller may unwittingly unblock the blocking mechanism (i.e., if the party line has per-line blocking engaged), and that if the caller is concerned about privacy, he or she should find out if per-line blocking has been activated on the particular phone. 4. This waiver applies only to those parties who have petitioned or filed comments with the Commission in this matter: US West, Bell Atlantic, and BellSouth. II. BACKGROUND 5. The Commission's caller ID rules took effect, with limited exceptions, on December 1, 1995. Those rules require carriers using Signaling System 7 (SS7) and appropriate software to transmit the calling party number (CPN) to interconnecting carriers on interstate calls. In addition to CPN transmission, the Commission developed rules to protect the privacy of the called and calling party. Section 64.1601(b) requires carriers to recognize *67 as a request for privacy. Dialing *67 before placing a call, referred to as per-call blocking, allows subscribers to block their numbers from transmission to the PSTN. In addition to *67, carriers also must recognize *82 as a request that CPN be transmitted, on a per-call basis, through an otherwise blocked line. Different blocking and unblocking codes were chosen to prevent callers using blocked lines from inadvertently releasing their CPN. 6. In the Second Report and Order, the Commission concluded that users of party lines have privacy interests that should be respected by federal policy. The Commission further reasoned that having one rule governing as many categories of subscriber loop as possible minimized customer confusion. Thus, carriers were required to provide party line customers with the same blocking and unblocking mechanisms as were made available to non-party line customers under the general rule. 7. In the Third Report and Order, responding to petitions for reconsideration filed by BellSouth and GTE with regard to party lines, the Commission stated unequivocally that it would not modify its rules simply because carriers may have to complete switch upgrades to offer blocking and unblocking on party lines. The BellSouth petition sought a reconsideration of the rule that party line customers be able to block and unblock CPN passage. According to BellSouth, implementation of the rule would require upgrading every 5ESS switch that served party line customers. US West supported BellSouth's petition, noting that it would have to invest $4.2 million to prepare its 5ESS switches to provide blocking and unblocking on party lines. GTE's petition sought clarification of whether blocking and unblocking features would have to be made available on party lines that served four parties. 8. The Commission rejected these petitions, finding that, in response to BellSouth's argument that party line service was being phased out and that party lines users had lower expectations of privacy than others, it had already considered, and rejected, those arguments in the Second Report and Order. In rejecting GTE's petition with regard to four-party lines, the Commission found no supporting evidence from the record that four-party lines should be treated any differently than two-party lines. III. THE PETITIONS 9. US West requests reconsideration of the Commission's caller ID blocking and unblocking rules with respect to all party lines because of the present inability of Nortel DMS-100 switches to allow *67 to act solely as a per-call blocking function from party lines and the inability to recognize *82 as a customer's request that calling party number (CPN) be passed on a per- call basis on a blocked party line. Rather, on party lines served by these switches, *67 acts to "toggle" CPN passage. That is, if the line is unblocked, *67 will function normally and block CPN passage from the succeeding phone call, but if the line is blocked, *67 will act to unblock the succeeding phone call. 10. In the alternative, US West requests that the Commission waive its rules prohibiting that *67 act as a "toggle" code for blocking transmission of the originating caller's CPN when that caller is connected to the PSTN via a party line served by a Nortel DMS-100. Bell Atlantic notes that its party line customers served by DMS-100 switches have been using *67 as a toggle for years, and have grown accustomed to this arrangement. 11. According to US West, Nortel has advised that it has no intention of developing *82 unblocking functionality absent a demonstration of significant purchaser demand. Nortel states that it does not expect to recover the significant cost involved in developing software to eliminate *67 "toggle" and add *82 functionality on party lines because the number of party lines in use diminishes annually. 12. US West argues that the required upgrade for party lines is "significantly different from . . . other upgrades." According to US West, the differences are twofold: (1) the population of party line customers is exceedingly small and dwindling; and (2) the development costs associated with implementing the required functionality are quite high. 13. Related to US West's Petition for Reconsideration, BellSouth filed a Motion for Stay requesting that, pending a decision on the merits of the Petition for Reconsideration, the Commission stay the effective date of the caller ID blocking and unblocking requirements as they apply to all party line customers, not just those served by Nortel DMS-100 switches. BellSouth states that there is precedent for granting a stay, and that it may be driven to undertake a costly solution if the Commission denies the Petition for Reconsideration. IV. DISCUSSION 14. The parties have provided information regarding how many party line customers remain, and that each is taking steps to eliminate party line service entirely. US West states that "party lines represent an increasingly less number of lines provided by local exchange carriers," and that only 2,500 customers subscribe to the service in its territory. It also noted that of the 14 states served by US West, two have no party line customers, and eight have only grandfathered party line customers (i.e., party line service is not available to new customers). In the remaining four states, in addition to grandfathered party line customers, the only new customers eligible for party line service are those located in areas with insufficient facilities or equipment to provide one-party service. In such states, once facilities are available for one-party service, those customers must upgrade to one-party service. US West estimated a cost of $10 million to implement *67/*82 functionality for its 2,500 party line customers who are served by 153 DMS-100 switches. 15. BellSouth notes that in its nine-state territory, five states no longer have any party line customers, a sixth has very recently approved a tariff which would eliminate party line service before March 25, 1998, in a seventh state (in which only 120 customers receive party line service from 3 DMS-100s) an effective tariff calls for the elimination of party line service by December 31, 1998, and in an eighth state, only grandfathered party lines (1,200 of which are served by 41 DMS-100s) remain. In only one state in BellSouth's territory, Georgia, is party line service not currently grandfathered or non-existent. Under an existing rate regulation plan, BellSouth may not withdraw party line service until after August 2000. There are 1,521 party line customers served by 83 DMS-100s in Georgia. 16. According to Bell Atlantic, it would cost an estimated $33 million to obtain the feature for its 240 DMS-100 switches that serve 11,000 party line customers. Of those customers, only an estimated 1,000 have selected per line blocking, bringing the cost of developing *82 as a per-call unblocking code to approximately $33,000 per line-blocked customer. 17. In an ex parte, Nortel confirmed that adding the requisite blocking and unblocking codes for DMS-100 switches serving party lines would require development of new software. According to Nortel, the costs of developing this software on a per-switch basis is significant, especially given that only a fraction of the DMS-100 switches currently in use require the additional feature. 18. Although the Commission primarily discharges its duties by promulgating rules of general application that establish the public interest for a broad range of situations, rulemaking does not relieve it from its obligation of seeking out the public interest in particular, individual cases. Pursuant to section 1.3 of the Commission's rules, the Commission may waive any provision of its rules, in whole or in part, if good cause is shown. Applicants seeking a waiver of a rule must plead with particularity the facts and circumstances that warrant such action. When an allegation is stated with clarity and accompanied by supporting data, the Commission will give such an application for waiver a "hard look." 19. Granting a waiver of the general rule governing which codes must act to block and unblock transmission of CPN from party line customers connected to the PSTN via Nortel DMS- 100 switches serves the public interest. As stated above, the parties have plead the facts and circumstances that warrant the waiver: specifically, that the cost of implementing the requirement is very high in relation to the number of people affected by the required upgrade in service, and that a grant of the waiver still retains the ability of the affected customers to achieve privacy with respect to caller ID, albeit it in a modified manner. The public interest is served by granting this waiver, in that these significant upgrade costs will not be passed on to other consumers in the form of higher rates for phone service. 20. Through US West's original petition and the supporting comments and ex partes, the parties have provided convincing information that requiring implementation of *82 to unblock blocked party lines on a per-call basis and eliminating the functioning of *67 as a blocking "toggle" on party lines served by DMS-100 switches by March 25, 1998, would not be in the public interest. 21. While using *67 as a toggle is far from an ideal solution to guarantee people's privacy, the waiver is for a limited time and affects only a small amount of customers, who, according to one commenter, are accustomed to this manner of line blocking and unblocking. These factors weigh significantly in the Bureau's decision. The Bureau finds that a limited waiver, applicable only to party line customers served by DMS-100 switches for so long as party line service remains available, serves the public interest. 22. While the Commission grants a waiver of the specific code requirements for blocking/unblocking transmission of CPN on certain party lines, it is nonetheless concerned that users of the affected party lines receive some type of notice that their privacy may not be protected by dialing *67 (i.e., in the case where the line is blocked, and the user does not realize that it is so). The Commission has recognized that privacy as well as physical safety interests require protection through the use of CPN blocking. 23. In light of the possibility for confusion that this waiver could create, the Bureau requires that US West, Bell Atlantic, and BellSouth provide notice to affected customers that *67 and *82 function somewhat differently from the affected phone than they do normally. The notice should include, at a minimum, a warning that if a particular party line phone has per line blocking, that a caller may unwittingly unblock a call by using *67, and that if privacy is a concern, the caller should find out if per line blocking has been activated. The notice should also state that *82 will not function to unblock a call. The precise form of this notice is left to the carriers in keeping with the Commission's previous notice requirements in the caller ID proceeding. 24. The parties anticipate that eventually party line service will be phased out completely from the parties' territories. Very few states allow new subscriptions to party line service. Most party lines that remain tend to be grandfathered. This waiver applies to party line customers served by Nortel DMS-100 switches until such time as party line service is phased out from the carriers' territories. 25. BellSouth's Motion for Stay asserts that it will have to incur costly switch upgrades to comply with our rules to accommodate per-call blocking and unblocking of CPN passage from all party lines. BellSouth raised this same argument in support of its petition for reconsideration of blocking and unblocking rules for party lines which the Commission denied in the Third Report and Order. 26. Section 1.429(k) of the Commission's rules provides that it may stay the effective date of an order pending reconsideration by the Commission upon a showing of "good cause." The Commission evaluates whether good cause exists to grant a stay under the standard set forth in Virginia Petroleum Jobbers Association v. Federal Power Commission as explained in Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc. Under the Holiday Tours standard, the petitioner must demonstrate (1) that it is likely to prevail on the merits; (2) that it will suffer irreparable harm if a stay is not granted; (3) that other interested parties will not be harmed if the stay is granted; and (4) that the public interest favors grant of the stay. BellSouth has not attempted to demonstrate any of the Holiday Tours factors. Rather, it relies solely on economic harm as justifying a grant of a stay. That BellSouth may have to expend money to upgrade non-Nortel DMS-100 switches consistent with the mandate of the Third Report and Order does not justify granting a stay. Given that telecommunications carriers have had notice since March 25, 1997, that blocking and unblocking requirements would have to be implemented for party lines within one year, carriers have had ample time to budget for an expenditure of money to avoid any purported "economic harm" caused by compliance with the Commission's rules. Therefore, because BellSouth has not met the standard of Holiday Tours, we deny its Motion for Stay. V. ORDERING CLAUSES 27. Accordingly, IT IS ORDERED, pursuant to Section 1.3 of the Commission's rules, 47 C.F.R.  1.3, and the authority delegated in Sections 0.91 and 0.291 of the Commission's rules, 47 C.F.R.  0.91 and 0.291, that US West's petition for waiver of the Commission's blocking code requirements for party lines served by Nortel DMS-100 switches as specified by Section 64.1601(b) of the Commission's rules, 47 C.F.R. 64.1601(b), IS GRANTED to the extent described by this Order. 28. IT IS FURTHER ORDERED that parties acting pursuant to this Order provide notice to customers affected thereby that *67 may act to unblock a blocked line and that *82 will not function. 29. IT IS FURTHER ORDERED, pursuant to Section 1.3 of the Commission's rules, 47 C.F.R.  1.3, and the authority delegated in Sections 0.91 and 0.291 of the Commission's rules, 47 C.F.R.  0.91 and 0.291, that BellSouth's motion for stay IS DENIED in all respects. 30. IT IS FURTHER ORDERED that this Order is effective upon adoption. FEDERAL COMMUNICATIONS COMMISSION Geraldine A. Matise Chief, Network Services Division, Common Carrier Bureau