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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

Choice One Communications of New York
Inc.

Emergency Petition for Expedited Waiver
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CC Docket No. 94-129






                             ORDER

   Adopted:  May 3, 2001                Released:  May 4, 2001

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 Choice One Communications
of New York, Inc. (Choice One) 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 Choice One to become the preferred carrier of certain
consumers currently presubscribed to CTSI, Inc. (CTSI), 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.     Choice One seeks a waiver of our verification rules to allow Choice One to be
designated the preferred local and long distance carrier for certain customers of CTSI without
first obtaining each customer's authorization and verification.  Because we conclude that, under
the circumstances presented, it is in the public interest to do so, we grant Choice One 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 Choice One 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 Choice One to transfer to its own customer base the affected CTSI customers. 
According to the Waiver Petition, Choice One and CTSI have entered into an agreement whereby
Choice One has agreed to provide local and long distance telephone services to the New York
and Ohio business customers of CTSI.  Choice One requests expedited treatment of its Waiver
Petition so that Choice One may close its transactions with CTSI by May 14, 2001.  In support of
its request, Choice One states that it intends to offer the affected CTSI customers the same
services, at the same or comparable rates. Choice One explains that, because CTSI offers a flat
rate service, and Choice One offers a per minute service, CTSI customers that have higher-than-
anticipated usage patterns, or certain services (i.e., vertical features) not technically permissible
under Choice One's offerings, may experience rate fluctuations.  According to the Waiver
Petition, Choice One and CTSI will offer these customers financial credits and will provide
them with the same contract terms for up to 90 days.  Choice One asserts that these measures will
ensure that Choice One's rates are initially less than or equal to CTSI's current rates.  
6.     We conclude that special circumstances exist to justify a waiver.  Without this waiver,
the service of some former CTSI customers might temporarily be interrupted when CTSI ceases
providing presubscribed service to customers who fail to respond in a timely fashion to requests
for preferred carrier change authorizations; some of 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 Choice One 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, and because Choice One has agreed to notify the affected customers as described
below.  According to the Waiver Petition, Choice One will undertake a two-step process to notify
the affected customers of the transfer.  To maximize administrative efficiencies and eliminate
customer confusion, Choice One and CTSI have already sent a letter informing CTSI customers
of the proposed transfer and assuring them that no charges or rate increases will be imposed as a
result of the transfer.  This notification letter also advised the affected customers that they may
select a different preferred carrier, should they desire to do so.  In addition, the affected
customers were given a toll-free number to call with any questions they may have about the
transfer. 
8.     According to Choice One, once the proposed transfer has been completed, Choice
One will notify these customers of that event and reiterate the foregoing information, assurances,
and advice.  In addition, Choice One asserts that it will investigate and resolve any outstanding
customer complaints regarding services provided by CTSI.  We conclude that these conditions
will adequately protect the rights of the CTSI customers.
9.     For the foregoing reasons, we grant Choice One 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 the provision of customer notification and the handling of
complaints, as described above and further detailed in the Waiver Petition.  
                     III.  ORDERING CLAUSES
10.    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 Choice One Communications of New York, Inc. on April
26, 2001, and supplemented on April 27, 2001 and May 3, 2001, IS GRANTED to the extent
indicated herein. 
11.    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