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Before the
               Federal Communications Commission
                     Washington, D.C. 20554



In the Matter of

Implementation of the Subscriber Carrier
Selection Changes Provisions of the
Telecommunications Act of 1996

First Communications, LLC
Petition for Waiver
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CC Docket No. 94-129






                             ORDER

   Adopted: November 3, 2000            Released:  November 6, 2000

By the Associate Chief, Accounting Policy Division, Common Carrier Bureau:

                I.  INTRODUCTION AND BACKGROUND
1.     In its Carrier Change Orders, the Commission adopted rules applicable to carriers
changing a consumer's preferred carrier.   In this Order, we grant First Communications, LLC
(First Communications), a limited waiver of the authorization and verification requirements of
the Commission's rules and Carrier Change Orders.  We grant this limited waiver to the extent
necessary to enable First Communications to become the preferred carrier of certain consumers
currently presubscribed to ITS, without first obtaining the consumers' authorization and
verification.
2.     Section 258 of the Communications Act of 1934, as amended by the
Telecommunications Act of 1996, makes it unlawful for any telecommunications carrier to
"submit or execute a change in a subscriber's selection of a provider of telephone exchange
service or telephone toll service except in accordance with such procedures as the Commission
shall prescribe."  The goal of section 258 is to eliminate the practice of "slamming," the
unauthorized change of a subscriber's preferred carrier.  Pursuant to section 258, carriers are
absolutely barred from changing a customer's preferred local or long distance carrier without first
complying with the Commission's verification procedures.  In the Section 258 Order, the
Commission revised its procedures to ensure that carriers obtain the requisite authority prior to
changing a customer's preferred carrier.  The Commission requires that carriers follow one of the
Commission's prescribed verification procedures before submitting carrier changes on behalf of
consumers. 
3.     First Communications seeks a waiver of our verification rules to allow First
Communications to be designated the preferred long distance carrier for customers of ITS
without first obtaining each customer's authorization and verification.  Because we conclude
that, under the circumstances presented, it is in the public interest to grant the waiver, we grant
First Communications a waiver, subject to the conditions represented in its filings.
                        II.  DISCUSSION
4.     Generally, the Commission's rules may be waived for good cause shown.  As noted
by the Court of Appeals for the D.C. Circuit, however, agency rules are presumed valid.  The
Commission may exercise its discretion to waive a rule where the particular facts make strict
compliance inconsistent with the public interest.  In addition, the Commission may take into
account considerations of hardship, equity, or more effective implementation of overall policy on
an individual basis.  Waiver of the Commission's rules is therefore appropriate only if special
circumstances warrant a deviation from the general rule, and such a deviation will serve the
public interest. 
5.     We find that First Communications has demonstrated that good cause exists to justify
a limited waiver of the Commission's authorization and verification requirements to the extent
necessary to enable First Communications to transfer to its own customer base the affected ITS
customers.  ITS is a switchless reseller providing interexchange services to business and
residential customers.  First Communications currently operates as the underlying carrier for
ITS's interexchange services.  In its Waiver Petition, First Communications states that, in May
1999, it entered into an asset purchase agreement with ITS whereby First Communications
acquired certain assets of ITS, including ITS's customer base.  Pursuant to this agreement, for a
transition period of thirteen months, ITS continued to perform billing and customer care
functions, and ITS customers continued to be subject to the same rates, terms, and conditions that
had been in effect prior to the agreement.  According to First Communications, ITS continues
to provide long distance service to the affected customers.  First Communications asserts that it
needs to move those ITS customers to its own billing platform as soon as possible, due to a
variety of limitations in the ITS system that have negatively affected those customers and have
resulted in lost revenues.
6.     We conclude that special circumstances exist to justify a waiver.  Without this waiver,
the service of some former ITS customers might temporarily be interrupted when ITS ceases
providing presubscribed service to customers who fail to respond in a timely fashion to requests
for preferred carrier change authorization; those customers might also pay potentially higher
casual calling rates after the discontinuance of presubscribed service.  We conclude that a waiver
of the Commission's carrier change rules and orders is necessary to provide a seamless transition
with no disruption of service to the transferred customers.
7.     We find that First Communications has demonstrated that a limited waiver of the
authorization and verification rules is in the public interest because it will prevent consumers
from temporarily losing service or paying significantly higher rates, and because First
Communications has agreed to notify the affected customers as described below.  First
Communications states that it will undertake a two-step process to notify the affected customers
of the transfer.  In a first letter, First Communications will inform customers of the proposed
transfer and assure them that no charges or rate increases will be imposed as a result of the
transfer.   First Communications states that it will also advise the affected customers that they
can choose a different preferred carrier, should they desire to do so.  In addition, customers will
be given a toll-free number to call with any questions they may have about the transition. 
According to First Communications, once the proposed transfer has been consummated, it will
notify these customers of that event and reiterate the foregoing information, assurances, and
advice.  First Communications has agreed that, if the Commission waives its rules to permit
First Communications to provide service to ITS's former customers, First Communications will
work with the complainants and the Commission to investigate and resolve complaints regarding
services provided by ITS.  We conclude that these conditions will adequately protect the rights
of the transferred customers of ITS.
8.     For the foregoing reasons, we grant First Communications a waiver of the
authorization and verification requirements of our rules for the limited purposes described above.
The grant of this waiver is conditioned upon First Communications' provision of customer
notification and handling of complaints, as described above and further detailed in the Waiver
Petition and Supplements.
                     III.  ORDERING CLAUSES

9.     Accordingly, pursuant to authority contained in Sections 1, 4, and 258 of the
Communications Act of 1934, as amended, 47 U.S.C.  151, 154, 258, and the authority
delegated under sections 0.91, 0.291, and 1.3 of the Commission's rules, 47 C.F.R.  0.91, 
0.291, 1.3, the waiver request filed by First Communications, LLC, on September 28, 2000, and
supplemented on October 26, 2000, and November 3, 2000, IS GRANTED to the extent
indicated herein. 
10.    IT IS FURTHER ORDERED that this Order is effective upon release. 
                              FEDERAL COMMUNICATIONS COMMISSION


                              K. Michele Walters
                              Associate Chief, 
                              Accounting Policy Division,
                              Common Carrier Bureau