[Federal Register Volume 63, Number 220 (Monday, November 16, 1998)]
[Rules and Regulations]
[Pages 63613-63617]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-30495]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 52

[CC Docket No. 96-98; FCC 98-224]


Petition for Declaratory Ruling and Request for Expedited Action 
on the July 15, 1997 Order of the Pennsylvania Public Utility 
Commission Regarding Area Codes 412, 610, 215, and 717; Implementation 
of the Local Competition Provisions of the Telecommunications Act

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: On September 28, 1998, the Commission released a Memorandum 
Opinion and Order and Order on Reconsideration in CC Docket 96-98, 
declaring that an Order issued by the Pennsylvania Commission on July 
15, 1997, unlawfully exceeded state jurisdiction over 
telecommunications numbering administration, unlawfully discriminated 
against Petitioners, and constituted an unlawful barrier to entry. It 
also required the Pennsylvania Commission to provide area code relief 
in the 215, 610, and 717 area codes. The Commission also reconsidered a 
portion of Implementation of the Local Competition Provisions of the 
Telecommunications Act of 1996, where authority was delegated to state 
commissions to implement area code relief. The Commission delegated 
additional authority to state commissions to order NXX code rationing, 
under certain conditions, so that state commissions may have more 
flexibility to assure that the area codes they have will last until 
implementation of relief.

EFFECTIVE DATE: December 16, 1998.

FOR FURTHER INFORMATION CONTACT: Gregory Cooke or Jared Carlson, 
Network Services Division, Common Carrier Bureau, (202) 418-2320.


[[Page 63614]]


SUPPLEMENTARY INFORMATION: This summarizes the Commission's Memorandum 
Opinion and Order and Order on Reconsideration in CC Docket 96-98, 
Implementation of the Local Competition Provisions of the 
Telecommunications Act of 1996.

Paperwork Reduction Act

    No impact.

Analysis of Proceeding

Background

    1. Overview. Numbering Plan Areas (NPAs) are known commonly as area 
codes, and are the first three digits of a ten-digit telephone number. 
The second three digits of a telephone number are known as the NXX code 
or central office code (CO code). The NXX code is used by some 
carriers, particularly wireline carriers, for billing purposes. NXX 
codes are assigned to particular switches or rate centers in an area 
code and carriers base charges for telephone calls, in part, on the 
distance between the rate center from which a call originates and the 
rate center at which the call terminates. NXX codes are an integral 
part of addressing calls and routing them throughout the telephone 
network, and are normally associated with a specific geographic 
location within the area code from which they are assigned. Usually, a 
whole NXX code that includes 10,000 line numbers is assigned to an 
entity for use at a switch or point of interconnection that the entity 
owns or controls, and the entity assigns the line numbers to its 
individual customers.
    2. According to industry guidelines that govern the NXX code 
administrators, applicants must certify a need for North American 
Numbering Plan (NANP) numbers and must be licensed or certified to 
operate in the area. These codes are assigned on a first-come, first-
served basis, unless a jeopardy condition exists. The guidelines 
further provide that, once an area code is in jeopardy, the code 
administrator will notify the appropriate regulatory authorities, the 
NANP Administrator (NANPA), and affected parties that the area code is 
in jeopardy and will invoke special conservation procedures.
    3. Jurisdiction. The Communications Act of 1934, as amended by the 
Telecommunications Act of 1996 (the Act), gives the Commission plenary 
jurisdiction over numbering issues that pertain to the United States. 
In the Local Competition Second Report and Order, the Commission 
delegated the authority to implement new area codes to the state 
commissions, but retained broad authority over numbering. Under the 
Commission rules, states can introduce new area codes through the use 
of: (1) A geographic split, which occurs when the geographic area 
served by an area code is split into two or more geographic parts and 
one part maintains the old area code and one (or more) receive a new 
area code; (2) an area code boundary realignment, which occurs when the 
boundary lines between two adjacent area codes are shifted to allow the 
transfer of some NXX codes from an area code for which NXX codes remain 
unassigned to an area code for which few or no NXX codes are left for 
assignment; or (3) an area code overlay, which occurs when a new area 
code is introduced to serve the same geographic area as an existing 
area code.
    4. The Commission stated that the delegation of functions 
associated with initiation and planning of area code relief was made 
only to those states wishing to perform those functions, and that those 
functions would be performed by the new NANPA for those states that did 
not wish to perform such functions. The Commission specifically 
declined to delegate to states the task of NXX code allocation or 
assignment, stating that to do so would vest in fifty-one separate 
commissions oversight of functions that the Commission centralized to 
the new NANPA. The Commission noted that a uniform, nationwide system 
of numbering, including allocation of NXX codes, is essential to the 
efficient delivery of telecommunications services in the United States.
    5. Pennsylvania Commission Orders. In 1996, the NXX code 
administrator for Pennsylvania filed petitions with the Pennsylvania 
Commission requesting that the Pennsylvania Commission address the 
depletion of NXX codes in area codes 412, 215, 610, and 717. On July 
15, 1997, the Pennsylvania Commission entered an order addressing NXX 
code depletion in the four Pennsylvania area codes 412, 215, 610, and 
717 (Pennsylvania Commission Order). On July 28, 1997, the Pennsylvania 
Commission issued a letter to the NXX code administrator requiring the 
rationing of NXX codes in those four area codes at the rate of three 
per month.
    6. The Pennsylvania Commission Order required a geographic split 
for area code 412 but did not order traditional area code relief to the 
610, 215, and 717 area codes. Instead the order required implementation 
of transparent area code overlays and, eventually, number pooling, to 
relieve the need for additional NXX codes in area codes 215, 610, and 
717. The Pennsylvania Commission described the use of the transparent 
area codes as an interim measure to help relieve the need for 
additional NXX codes, and stated that this relief was optional for 
competitive local exchange carriers and for wireless carriers, who 
could choose to participate or wait for assignment of NXX codes in the 
old area code under the lottery procedures.
    7. On December 18, 1997 and February 5, 1998, the Pennsylvania 
Commission adopted orders that clarified and implemented the July 15, 
1997 Order (Pennsylvania Commission Orders II and III).
    8. Between July 18 and July 30, 1997, several parties filed motions 
for reconsideration of the Pennsylvania Commission Order with the 
Pennsylvania Commission. On August 14 and 15, 1997, several parties 
also appealed the Pennsylvania Commission Order to the Commonwealth 
Court of Pennsylvania. On February 26, 1998, the Commonwealth Court of 
Pennsylvania granted the Pennsylvania Commission's request to remand 
the case, requiring that the Pennsylvania Commission enter a subsequent 
Order on or before May 29, 1998, addressing all issues necessary for 
implementation of conventional area code relief in area codes 215, 610, 
and 717.
    9. On February 26, 1998, the Pennsylvania Commission adopted two 
Orders that tentatively approved a geographic split of the 717 area 
code (Pennsylvania Commission Order IV) and the creation of a new area 
code that would overlay the 215 and 610 area codes (Pennsylvania 
Commission Order V). Both orders expressly stated that the provisions 
of the Pennsylvania Commission's first three Orders shall remain in 
force and effect, to the extent not rescinded or modified in the 
Orders. On May 21, 1998, the Pennsylvania Commission adopted two 
additional Orders approving area code relief plans for area codes 717 
(Pennsylvania Commission Order VI), and area codes 215 and 610 
(Pennsylvania Commission Order VII). The orders stated that while the 
lack of any available NXXs mandated immediate conventional area code 
relief, the Pennsylvania Commission anticipated that number pooling 
will be implemented in the foreseeable future and that could delay 
further need for disruptive area code relief. The Pennsylvania 
Commission directed the NXX code administrator to reserve 15 NXX codes 
in the 717 NPA and 15 NXXs in the new area code created by the 717 
split to be available for pooling or porting, either on a long-term or 
trial basis. Similarly, it directed the same in area codes 215 and 610.

[[Page 63615]]

Discussion

    10. The actions taken by the Pennsylvania Commission in its two 
most recent orders resolve certain issues raised by the petitioners. 
State commissions need additional guidance and clarification, however, 
as to the limits of their authority over area code relief and number 
conservation as they address decisions in this area. Although we wish 
to support state commissions' efforts to develop innovative ways to 
address the problem of NXX code depletion, we are also mindful that the 
1996 Act assigned to the Commission the responsibility for implementing 
a national numbering policy.
    11. The Commission, the state commissions, and the industry are 
working together to develop methods to conserve and promote efficient 
use of numbers that do not undermine the uniform scheme of numbering. 
The North American Numbering Council (NANC) will make recommendations 
to the Commission on number pooling, and other number conservation 
measures, and those recommendations will have the benefit of industry 
expertise and will be in large part the product of industry consensus. 
The Commission anticipates using the NANC recommendations to conduct a 
rulemaking to establish national standards and regulations for number 
pooling architecture, administration, and implementation, and possibly 
other number conservation methods.
    12. Delegation of Additional Authority to States. In the Local 
Competition Second Report and Order, the Commission did not delegate 
any authority to state commissions in the area of NXX code allocation 
or administration. Therefore, a state commission ordering NXX code 
rationing, or any other NXX code conservation measure, is, under the 
current regulatory structure, acting outside the scope of its delegated 
authority. The Commission understands the exigencies of NXX code 
rationing in the Pennsylvania situation and other states. We believe 
that state commissions may need flexibility to become involved in 
attempts to conserve NXX codes in order to extend the lives of area 
codes within their borders. Therefore, the Commission is reconsidering 
on its own motion the portion of the Local Competition Second Report 
and Order where the authority was delegated to state commissions to 
implement new area codes. We specifically delegate a limited amount of 
additional authority to state commissions that will allow them to order 
NXX code rationing in certain situations. This authorization is 
effective immediately upon publication in the Federal Register.
    13. The Commission agrees with commenters asserting that the 
rationing of NXX codes should only occur when it is clear that an NPA 
will run out of NXX codes before implementation of a relief plan. The 
Commission therefore delegates authority to state commissions to order 
NXX code rationing, only in conjunction with area code relief 
decisions, if the industry has been unable to reach consensus on a 
rationing plan to extend the life of an area code until implementation 
of relief. A state commission, therefore, may only impose an NXX 
rationing plan if the state commission has decided on a specific form 
of area code relief (i.e., a split, overlay, or boundary realignment) 
and has established an implementation date. At that point, a state 
commission may work with the NXX code administrator to devise an NXX 
code rationing plan based on whatever mechanisms the state commission 
and the NXX code administrator deem most appropriate, including a 
lottery. State commissions and NXX code administrators also may 
consider imposing a usage threshold that a carrier must meet in its 
NXXs before obtaining another NXX in the same rate center.
    14. The Commission clarifies that state commissions do not have 
authority to order return of NXX codes or 1,000 number blocks to the 
code administrator, either pursuant to a pooling trial or pursuant to a 
number rationing scheme implemented as part of a state-ordered area 
code relief plan. Such actions fall outside of the authority granted 
the states to initiate traditional area code relief, and would 
interfere with the code administrator's functioning pursuant to rules 
delegating to the code administrator the authority to manage the United 
States CO code number resource.
    15. The Commission is aware that some states are conducting number 
pooling trials and encourages those efforts. At this time, however, the 
Commission declines to delegate to state commissions the authority to 
order number pooling, in view of the activity occurring at the federal 
level to develop such national standards. Until the Commission conducts 
a rulemaking to develop regulations on number pooling we encourage 
number pooling experiments in the states, provided that such 
experiments do not violate previous Commission decisions regarding 
numbering administration and area code relief, and provided that 
carrier participation is voluntary. State commissions may order that a 
certain number of NXX codes in a new area code be withheld from 
assignment and saved for number pooling. No carrier, however, may be 
denied a NXX code so that it can be saved for pooling purposes. 
Further, state commissions should proceed with the understanding that 
they ultimately may have to change their number pooling methods to 
conform to national standards.
    16. The Commission encourages state commissions conducting pooling 
trials to work cooperatively with the NXX code administrator, and to 
conduct these trials in a manner consistent with industry guidelines. 
Further, states conducting pooling trials must ensure that numbering 
resources are available for carriers that do not have the LNP 
technology to participate in number pooling.
    17. In addition, the Commission grants to Illinois limited 
authority to continue its pooling initiative despite the trial's 
mandatory nature. To prevent multiple, inconsistent mandatory pooling 
trials throughout the country, we limit this grant of authority to 
Illinois. Other states that are considering innovative number 
conservation methods that the Commission has not addressed, or number 
pooling trials that fall outside the guidelines adopted in this Order, 
should request from the Commission an additional, limited delegation of 
authority to implement these methods.
    18. State Commission Authority. The Commission clarifies that the 
actions mandated by the Pennsylvania Commission in its July 1997 Order 
exceeded the scope of the authority the Commission has delegated to the 
state commissions. The Commission has not delegated jurisdiction over 
numbering issues to the states. The text of the Local Competition 
Second Report and Order is clear that the Commission delegated to state 
commissions the authority to implement new area codes; however, the 
Commission specifically declined to delegate to state commissions the 
authority to administer or allocate NXX codes.
    19. While the Pennsylvania Commission itself was not actually 
assigning the NXX codes, it ordered carriers and the NXX code 
administrator to implement several measures, including 1,000 block 
pooling, 1,000 block reclamation, the return of NXX codes, and NXX code 
rationing, that are part of NXX code administration.
    20. Compliance With Numbering Administration Regulations. The 
Pennsylvania Commission's original plan violated the Commission's 
regulations, which were promulgated to ensure that telecommunications

[[Page 63616]]

numbers are made available on an equitable basis.
    21. Availability of Numbering Resources. The original Pennsylvania 
plan did not facilitate entry into the telecommunications marketplace 
by making numbering resources available on an efficient and timely 
basis to carriers. The measures contained in the plan were unproven and 
could have deprived carriers of the numbers they needed to provide 
their services. Such measures are not a substitute for area code relief 
after jeopardy has been declared.
    22. Further, measures such as those ordered by the Pennsylvania 
Commission could affect negatively the routing of calls in the United 
States. For example, although the Pennsylvania Commission and the PaOCA 
asserted that the ``transparent overlays'' did not conflict with the 
requirements for 911 or E911 service, and that no solution in the 
Pennsylvania Commission Order adversely affected roaming, the record 
supports a finding that there is at least a potential for disruption in 
911 service if wireless carriers must participate in the ``transparent 
overlays'' in order to obtain numbers. The record also indicates a 
potential for service disruption if Pennsylvania wireless customers who 
have numbers assigned from the ``transparent overlays'' or whose 
carriers are attempting to participate in 1,000 block number pooling 
roam outside of Pennsylvania.
    23. Discrimination Against an Industry Segment. The Commission 
agrees with Petitioners that the Pennsylvania Commission's original 
reliance on the use of number pooling and transparent overlays unduly 
disfavored wireless and non-LRN capable carriers because it did not 
provide adequate assurance that those carriers would have access to 
numbering resources. Therefore, the measures mandated in the July 15, 
1997 Order violated the Commission's rule requiring that numbering 
administration not unduly favor or disfavor any particular 
telecommunications industry segment. The original plan also unduly 
disfavored wireless carriers because its implementation would have 
caused service problems for wireless carriers and their customers, but 
similar burdens would not have been placed on other types of carriers. 
Additionally, because of the NXX code rationing plan that the 
Pennsylvania Commission ordered, the original plan also would have 
unduly disfavored carriers that could not participate in the 
transparent overlays and number pooling.
    24. Technological Neutrality. The Commission does not determine 
whether Pennsylvania's original proposed methods would have been 
``technology-neutral,'' and therefore inconsistent with the 
Commission's rule requiring that numbering administration not unduly 
favor or disfavor any telecommunication technology, if carriers that 
could not have participated in the transparent overlays and number 
pooling had other access to numbering resources. It is not necessary to 
resolve that question in this order.
    25. Section 253. The Commission will not address arguments raised 
under section 253 of the Communications Act in this Order.
    26. Area Code Relief in Pennsylvania. We are not ordering area code 
relief for area codes 215, 610, and 717, as requested by Petitioners, 
because the Pennsylvania Commission has acted to provide for such 
relief. Because wireline carriers have implemented LNP or will be 
implementing LNP soon in the area codes at issue, it does not appear 
that the Pennsylvania Commission still intends to implement transparent 
overlays, but the Pennsylvania Commission Orders VI and VII did not 
specifically rescind the earlier Orders' provisions regarding 
transparent overlays. Implementation of transparent overlays is beyond 
the state commissions' jurisdiction, and, as discussed above the 
Commission has misgivings about the use of transparent overlays as an 
effective method of area code relief because of their impacts on some 
carriers.
    27. The Pennsylvania Commission's original imposition of NXX 
rationing measures was inconsistent with this Order's delegation of 
authority to state commission, because the state commission imposed the 
rationing plan when the area codes were in jeopardy, without having 
chose an area code relief method and established a relief date. Because 
the Pennsylvania Commission has ordered area code relief and because 
the NXX code situation in Pennsylvania is exigent, however, the current 
NXX code rationing plan may continue.
    28. Until area code relief is implemented in the 215, 610, and 717 
area codes in Pennsylvania, we grant additional authority to the 
Pennsylvania Commission, if requested, to hear and address claims of 
carriers claiming that they do not, or in the near future will not, 
have any line numbers remaining in their NXX codes, and will be unable 
to serve customers if they cannot obtain an NXX, or that they are using 
or will have to use extraordinary and unreasonably costly measures to 
provide service. The Pennsylvania Commission should work with the code 
administrator to ensure that those carriers have access to NXXs outside 
of the parameters of the rationing plan.
    29. Referral to the NANC. The Commission asks the NANC for a 
recommendation as to whether, in the future, the state commissions or 
the NANPA, Lockheed Martin IMS, should perform the function of 
evaluating whether a carrier that is subject to an NXX code rationing 
plan should receive and NXX or multiple NXXs outside of the parameters 
of the ration plan if it demonstrates that it has no numbers and cannot 
provide service to customers or is having to rely on extraordinary and 
costly measures in order to provide service. Recommendation from NANC 
is requested within 60 days of the effective date of the order.

Final Regulatory Flexibility Certification

    30. As permitted by section 605(b) of the Regulatory Flexibility 
Act (RFA), the Commission certifies that a regulatory flexibility 
analysis is not necessary because the amendments to the rules adopted 
in this Order will not impose a significant economic impact on a 
substantial number of small entities as defined by statute, or by the 
Small Business Administration (SBA). The RFA generally defines the term 
``small entity'' as having the same meaning as the terms ``small 
business,'' ``small organization,'' and ``small governmental 
jurisdiction.'' In addition, the term ``small business'' has the same 
meaning as the term ``small business concern'' under the Small Business 
Act. A small business concern is one that (1) is independently owned 
and operated; (2) is not dominant in its field of operation; and (3) 
satisfies any additional criteria established by the SBA. The rule 
expands state commissions' authority to implement area code relief by 
granting additional authority to the state commissions to, under 
certain conditions, ration NXX codes in conjunction with area code 
relief decisions. Because state commissions will be the entities 
complying with the rules, and because the expansion of the rule simply 
supplements authority that the state commissions already have, we can 
certify that a regulatory flexibility analysis is unnecessary. This 
certification conforms to the RFA, as amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996 (SBREFA).
    31. The Commission's Office of Public Affairs, Public Reference 
Branch, will send a copy of the certification, along with the Order, in 
a report to Congress pursuant to the Small Business Regulatory 
Enforcement Fairness Act of 1996, 5 U.S.C. section 801(a)(1)(A), and

[[Page 63617]]

to the Chief Counsel for Advocacy of the Small Business Associations, 5 
U.S.C. section 605(b).

Ordering Clauses

    32. Accordingly, pursuant to section 1, 4(i), 201-205, 251, 253, 
and 403 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 
154(i), 201-205, 251, 253, and 403, and pursuant to section 1.2 of the 
Commission's Rules, 47 C.F.R. 1.2, It is ordered that the Petition for 
Declaratory Ruling filed by Nextel Communications, Inc., Sprint PCS, 
Vanguard Cellular Systems, Inc., 360 Communications Company, and Bell 
Atlantic Mobile, Inc. is Granted to the extent described herein.
    33. It is further ordered, that, pursuant to section 1, 4(i), 201-
205, 251, 253, and 403 of the Communications Act of 1934, as amended, 
47 U.S.C. 151, 154(i), 201-205, 251, 253, and 403, and pursuant to 
section 1.2 of the Commission's Rules, 47 C.F.R. 1.2, we reconsider on 
our own motion a portion of Implementation of the Local Competition 
Provisions of the Telecommunications Act of 1996, Second Report and 
Order and Memorandum Opinion and Order, CC Docket No. 96-98, 11 FCC Rcd 
19392 (1996) (Local Competition Second Report and Order), and authorize 
state commissions to order NXX code rationing in conjunction with area 
code relief decisions, consistent with the terms as defined in this 
Order. Pursuant to the authority contained in section 408 of the 
Communications Act, as amended, 47 U.S.C. 408, this authorization is 
effective immediately upon publication in the Federal Register. The 
remaining policies and requirements set forth herein are effective upon 
release of this Order.
    34. It is further ordered, that the Chief, Common Carrier Bureau, 
is directed to determine whether state commissions should be delegated 
additional authority to implement innovative or experimental number 
conservation efforts.
    35. It is further ordered, that the NANC, within 60 days of the 
effective date of this Order, provide a recommendation as to whether, 
in the future, the state commissions or the NANPA should perform the 
function of evaluating whether a carrier that is subject to an NXX code 
rationing plan if it demonstrates that it has no number and cannot 
provide service to customers or is having to rely on extraordinary and 
costly measures in order to provide service.
    36. It is further ordered, that the Commission's Office of Public 
Affairs, Public Reference Branch, will send a copy of this 
certification, along with this Order, in a report to Congress pursuant 
to the Small Business Regulatory Enforcement Fairness Act of 1996, 5 
U.S.C. 801(a)(1)(A), and to the Chief Counsel for Advocacy of the Small 
Business Association, 5 U.S.C. 605(b). A copy of this certification 
will also be published in the Federal Register.
    37. It is further ordered, that PageNet's Motion to accept late-
filed reply comments is hereby accepted.

List of Subjects in 47 CFR Part 52

    Communications common carriers, Telecommunications, Telephone.

Federal Communications Commission.
Magalie Roman Salas,
Secretary.

Rule Changes

    Part 52 of Title 47 of the Code of Federal Regulations is amended 
as follows.

PART 52--NUMBERING

    1. The authority citation for Part 52 continues to read as follows:

    Authority: Sec. 1,2,4,5, 48 Stat. 1066, as amended; 47 U.S.C. 
151, 152, 154, 155 unless otherwise noted. Interpret or apply secs. 
3,4, 201-05, 218, 225-7, 251-2, 271 and 332, 48 Stat. 1070, as 
amended, 1077; 47 U.S.C. 153, 154, 201-205, 207-09, 218, 225-7, 251-
2, 271 and 332 unless otherwise noted.

    2. Revise paragraph (a) of section 52.19 to read as follows:


Sec. 52.19  Area code relief.

    (a) State commissions may resolve matters involving the 
introduction of new area codes within their states. Such matters may 
include, but are not limited to: Directing whether area code relief 
will take the form of a geographic split, an overlay area code, or a 
boundary realignment; establishing new area code boundaries; 
establishing necessary dates for the implementation of area code relief 
plans; and directing public education efforts regarding area code 
changes.
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[FR Doc. 98-30495 Filed 11-13-98; 8:45 am]
BILLING CODE 6712-01-P