[Federal Register Volume 67, Number 31 (Thursday, February 14, 2002)]
[Proposed Rules]
[Pages 6902-6905]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-3623]



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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 51

[CC Docket Nos. 99-272, 92-105, 92-237; FCC 01-384]


The Use of N11 Codes and Other Abbreviated Dialing Arrangements; 
Administration of the North American Numbering Plan

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this Notice of Proposed Rulemaking (NPRM) the Federal 
Communications Commission (FCC or Commission) seeks comment on proposed 
methods to promote further competition and choice in the retail 
directory assistance (DA) market, in accordance with the pro-
competitive, de-regulatory national policy framework set forth in the 
Telecommunications Act of 1996 (The Act), and consistent with the 
Commission's statements in the Local Competition Second Report and 
Order. This NPRM seeks comment on the directory assistance 
presubscription issue, as raised in a proposal filed by Telegate, Inc. 
(Telegate), a competing DA provider. This NPRM also seeks comment on 
other proposals to promote competition in the retail DA market.

DATES: Comments are due on or before April 1, 2002. Reply comments are 
due on or before April 30, 2002.

ADDRESSES: Federal Communications Commission, 445 12th Street, SW., 
Room TW-B204F, Washington, DC, 20554.

FOR FURTHER INFORMATION CONTACT: Rodney McDonald, 202/418-77513, Fax 
202/418-2345, TTY 202/418-0484, [email protected], Network Services 
Division, Common Carrier Bureau.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice 
of Proposed Rulemaking, CC Docket Nos. 99-273, 92-105, 92-237, FCC 01-
384 (NPRM), adopted December 21, 2001 and released January 9, 2002. The 
full text of the NPRM is available for inspection and copying during 
the weekday hours of 9 a.m. to 4:30 p.m. in the FCC Reference Center, 
Room CY-A257, 445 12th Street, SW., Washington, DC 20554, or copies may 
be purchased from the Commission's copy contractor, Qualex 
International, 445 12th Street, SW., Suite CY-B402, Washington, DC 
20554, phone (202) 863-2893.

Synopsis of the Further Notice of Proposed Rulemaking CC Docket 
Nos. 99-273, 92-105, 92-237

    1. On September 9, 1999, the Commission released the SLI/DA Order 
and Notice of Proposed Rulemaking (SLI/DA Order and NPRM), 64 FR 51910 
(September 27, 1999). In the SLI/DA Order and NPRM, the Commission 
tentatively concluded that competition in the directory assistance 
market is in the public interest. The Commission also tentatively 
concluded that competitive directory assistance providers are unable 
fully to compete without equal access to the local exchange carriers' 
(LECs) local directory assistance databases. The Commission invited 
comment on whether certain competitive directory assistance providers 
are providers of telephone exchange service or telephone toll service 
and thus entitled to nondiscriminatory access to those databases 
pursuant to section 251(b)(3) of the Act. The Commission also sought 
comment on whether competitive directory assistance providers that are 
not providers of telephone exchange service or telephone toll service 
also are entitled to nondiscriminatory access to directory assistance, 
including access to directory assistance databases.
    2. On October 13, 1999, Telegate filed comments in response to the 
SLI/DA Order and NPRM. In its comments, Telegate argued that full 
competition in the DA market could not exist until LECs no longer have 
exclusive possession of the 411 code. Telegate proposed opening up 411 
to competition by allowing customers to choose by presubscription their 
provider of directory assistance service, just as they can presubscribe 
to their primary interexchange carrier (IXC) for long distance 
services. None of the reply comments substantively addressed this 
portion of Telegate's comments.
    3. On February 9, 2000, Telegate met with Common Carrier Bureau 
(Bureau) staff members to discuss further the 411 presubscription 
proposal. On March 10, 2000, at the Bureau's request, Telegate filed an 
ex parte memorandum illustrating Telegate's 411 presubscription 
proposal in further detail. On April 27, 2000, the Bureau issued a 
public notice seeking comment on Telegate's proposal. In the Telegate 
Public Notice, the Bureau solicited comments on Telegate's proposal to 
enhance competition in the directory assistance market by requiring 
LECs to implement presubscription for the 411 abbreviated dialing code, 
specifically soliciting comments on the technical feasibility and 
economic viability of requiring LECs to implement presubscription to 
N11 abbreviated dialing codes in general. This included presubscription 
to 411 in the directory assistance proceeding, as well as 
presubscription to other N11 codes, particularly to 711 for access to 
Telecommunications Relay Service (TRS).
    4. On January 23, 2001, the Commission released the SLI/DA First 
Report and Order, 66 FR 10965 (February 21, 2001) and concluded that 
LECs must provide competing DA providers that qualify under section 
251(b)(3) of the Act with nondiscriminatory access to the LECs' local 
directory assistance databases, and must do so at nondiscriminatory and 
reasonable rates. To the extent that such DA providers qualify under 
section 251(b)(3), the Commission found that a LEC's failure to provide 
such access might also violate section 201(b). In the SLI/DA First 
Report and Order, the Commission also explained that the competitive 
provision of directory assistance is a necessary element of a 
competitive local telecommunications market, and noted that Congress 
recognized it as such in section 251. The Commission also concluded 
that LECs are not required to grant competing directory assistance 
providers nondiscriminatory access to non-local directory assistance 
databases. Finally, in the SLI/DA First Report and Order, the 
Commission concluded that the language in section 222(e) concerning 
directory publishing ``in any format'' applies to telephone directories 
on the Internet, but that section 222(e) does not apply to orally 
provided directory listing information. Telegate's proposal was not 
addressed in that order.
    5. In this NPRM, the Commission solicits comment on Telegate's 
proposal. Specifically, we seek comment Telegate's proposal to enhance 
competition in the DA market by requiring LECs to implement 
presubscription to 411. Central to Telegate's proposal is the argument 
that presubscription to the 411 code for access to DA services is 
necessary to ensure that full competition will develop in the retail DA 
market. We also seek comment on whether alternative dialing methods of 
providing access to DA services would provide a more level playing 
field for all DA providers to enter the retail DA market, and whether 
the elimination of the 411 dialing code is a necessary prerequisite for 
the success of such alternative dialing methods. On February 5, 2002, 
the Common Carrier Bureau released an Order extending the comment cycle 
for this proceeding. Comments are due on

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or before April 1, 2002. Reply are comments due on or before April 30, 
2002.

Initial Regulatory Flexibility Analysis

    6. As required by the Regulatory Flexibility Act (RFA), the 
Commission has prepared this present Initial Regulatory Flexibility 
Analysis (IRFA) of the possible significant economic impact on small 
entities by the policies and rules proposed in this NRPM. 5 U.S.C. 603. 
Written public comments are requested on this IRFA. Comments must be 
identified as responses to the IRFA and must be filed by the deadlines 
for comments on the NRPM. The Commission will send a copy of the NRPM, 
including this IRFA, to the Chief Counsel for Advocacy of the Small 
Business Administration (SBA). 5 U.S.C. 603(a).
Need for, and Objectives of, the Proposed Rules
    7. The Commission is issuing this NRPM to seek comment on whether 
to modify the Commission's rules to permit presubscription to directory 
assistance services in order to promote competition and choice in the 
retail DA market. Additionally, the Commission seeks input concerning 
other methods of providing DA and their impact on consumers and 
providers. In the Local Competition Second Report and Order, 61 FR 
47284 (September 6, 1996), the Commission anticipated that 
presubscription for particular services ultimately would be defined by 
technological, economic and marketing considerations, and noted its 
intent to monitor developments in this area and issue a Further Notice 
of Proposed Rulemaking to address these long range considerations so 
that end users would be able to preselect alternative providers for a 
multitude of services, including directory assistance. In the five 
years since the release of the Local Competition Second Report and 
Order, DA has grown from a simple method of obtaining a telephone 
number to a sophisticated voice-based portal that potentially can offer 
the consumer a wide spectrum of high quality services at competitive 
prices. We solicit comments as to whether the market for the 
competitive provision of directory assistance has developed to the 
point that additional steps must now be taken to ensure that all 
competitors have the same opportunity for access to customers and 
whether the directory assistance market is sufficiently open to 
competition that further regulatory action is unnecessary.
Legal Basis
    8. The proposed action is authorized under sections 1, 2, 3, 4, 
201, 202, 222, and 251 of the Communications Act of 1934, as amended, 
47 U.S.C. 151, 152, 153, 154, 201, 202, 222, and 251.
Description and Estimate of the Number of Small Entities to Which the 
Proposed Rules Will Apply
    9. The RFA directs agencies to provide a description of and, where 
feasible, an estimate of the number of small entities that may be 
affected by the proposed rules, if adopted. 5 U.S.C. 604(a)(3). The RFA 
defines the term ``small entity'' as having the same meaning as the 
terms ``small business,'' ``small organization,'' and ``small 
governmental jurisdiction.'' 5 U.S.C. 604(a)(3). In addition, the term 
``small business'' has the same meaning as the term ``small business 
concern'' under the Small Business Act. 5. U.S.C. 601(3). A small 
business concern is one which: (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. 15 U.S.C. 632. A small 
organization is generally ``any not-for-profit enterprise which is 
independently owned and operated and is not dominant in its field.'' 5 
U.S.C. 601(4). Nationwide, as of 1992, there were approximately 275,801 
small organizations. ``Small governmental jurisdiction'' generally 
means ``governments of cities, counties, towns, townships, villages, 
school districts, or special districts, with a population of less than 
50,000.'' 5 U.S.C. 601(5). As of 1992, there were approximately 85,006 
such governmental entities in the United States. This number includes 
38,978 counties, cities, and towns; of these, 37,566, or 96%, have 
populations of fewer than 50,000. The Census Bureau estimates that this 
ratio is approximately accurate for all governmental entities. Thus, of 
the 85,006 governmental entities, we estimate that 81,600 (96%) are 
small entities.
    10. Below, we further describe and estimate the number of small 
entity licensees and regulatees that may be affected by these rules. 
The most reliable source of information regarding the total numbers of 
certain common carrier and related providers nationwide, as well as the 
numbers of commercial wireless entities, appears to be data the 
Commission publishes annually in its Telecommunications Provider 
Locator report, regarding FCC Form 499-A.
    11. Total Number of Telephone Companies Affected. The decisions and 
rules adopted herein may have a significant effect on a substantial 
number of the small telephone companies identified by SBA. The Census 
Bureau reports that, at the end of 1992, there were 3,497 firms engaged 
in providing telephone services, as defined therein, for at least one 
year. These firms include a variety of different categories of 
carriers, including LECs, interexchange carriers, competitive access 
providers, cellular carriers, mobile service carriers, operator 
services providers, pay telephone operators, personal communications 
service (PCS) providers, covered specialized mobile radio providers, 
and resellers. It seems certain that some of those 3,497 telephone 
service firms may not qualify as small entities because they are not 
``independently owned and operated.'' For example, a PCS provider that 
is affiliated with an interexchange carrier having more than 1,500 
employees would not meet the definition of a small business. It seems 
reasonable to conclude, therefore, that fewer than 3,497 telephone 
service firms are small entity telephone service firms that may be 
affected by this NRPM. Since 1992, however, many new carriers have 
entered the telephone services marketplace. At least some of these new 
entrants may be small entities that are affected by this NRPM.
    12. Wireline Carriers and Service Providers. The SBA has developed 
a definition of small entities for telephone communications companies 
except radiotelephone (wireless) companies. The Census Bureau reports 
that there were 2,321 such telephone companies in operation for at 
least one year at the end of 1992. According to the SBA's definition, a 
small business telephone company other than a radiotelephone company is 
one employing no more than 1,500 persons. All but 26 of the 2,321 non-
radiotelephone companies listed by the Census Bureau were reported to 
have fewer than 1,000 employees. Thus, even if all 26 of those 
companies had more than 1,500 employees, there would still be 2,295 
non-radiotelephone companies that might qualify as small entities or 
small ILECs. We do not have data specifying the number of these 
carriers that are not independently owned and operated, and thus are 
unable at this time to estimate with greater precision the number of 
wireline carriers and service providers that would qualify as small 
business concerns under the SBA's definition. Consequently, we estimate 
that fewer

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than 2,295 small telephone communications companies other than 
radiotelephone companies are small entities or small incumbent LECs.
    13. We have included small incumbent LECs in this present RFA 
analysis. As noted above, a ``small business'' under the RFA is one 
that, inter alia, meets the pertinent small business size standard 
(e.g., a telephone communications business having 1,500 or fewer 
employees), and is not dominant in its field of operation. 15 U.S.C. 
632. The SBA's Office of Advocacy contends that, for RFA purposes, 
small incumbent LECs are not dominant in their field of operation 
because any such dominance is not ``national'' in scope. We have 
therefore included small incumbent LECs in this RFA analyses, although 
we emphasize that this RFA action has no effect on FCC analyses and 
determination in other, non-RFA contexts.
    14. Interexchange Carriers (IXCs). Neither the Commission nor SBA 
has developed a definition of small entities specifically applicable to 
providers of interexchange services. The closest applicable definition 
under SBA rules is for telephone communications companies other than 
radiotelephone (wireless) companies. The most reliable source of 
information regarding the number of IXCs nationwide of which we are 
aware appears to be the data that we collect annually in connection 
with the Telecommunications Reporting Worksheet, FCC Form 499-A. 
According to our most recent data, 229 companies reported that they 
were engaged in the provision of interexchange services. Although it 
seems certain that some of these carriers are not independently owned 
and operated, or have more than 1,500 employees, we are unable at this 
time to estimate with greater precision the number of IXCs that would 
qualify as small business concerns under SBA's definition. 
Consequently, we estimate that there are fewer than 229 small entity 
IXCs that may be affected by the decisions and rules adopted in this 
NRPM.
    15. Competitive Access Providers. Neither the Commission nor SBA 
has developed a definition of small entities specifically applicable to 
providers of competitive access services (CAPs). The closest applicable 
definition under SBA rules is for telephone communications companies 
other than radiotelephone (wireless) companies. The most reliable 
source of information regarding the number of CAPs nationwide of which 
we are aware appears to be the data that we collect annually in 
connection with the Telecommunications Reporting Worksheet, FCC Form 
499-A. According to our most recent data, 532 companies reported that 
they were engaged in the provision of competitive access services. 
Although it seems certain that some of these carriers are not 
independently owned and operated, or have more than 1,500 employees, we 
are unable at this time to estimate with greater precision the number 
of CAPs that would qualify as small business concerns under SBA's 
definition. Consequently, we estimate that there are fewer than 532 
small entity CAPs that may be affected by the decisions and rules 
adopted in this NRPM.
    16. Operator Service Providers. Neither the Commission nor SBA has 
developed a definition of small entities specifically applicable to 
providers of operator services. The closest applicable definition under 
SBA rules is for telephone communications companies other than 
radiotelephone (wireless) companies. The most reliable source of 
information regarding the number of operator services providers 
nationwide of which we are aware appears to be the data that we collect 
annually in connection with the Telecommunications Reporting Worksheet, 
FCC Form 499-A. According to our most recent data, 22 companies 
reported that they were engaged in the provision of operator services. 
Although it seems certain that some of these companies are not 
independently owned and operated, or have more than 1,500 employees, we 
are unable at this time to estimate with greater precision the number 
of operator services providers that would qualify as small business 
concerns under SBA's definition. Consequently, we estimate that there 
are fewer than 22 small entity operator services providers that may be 
affected by the decisions and rules adopted in this NRPM.
    17. Payphone Providers. Neither the Commission nor SBA has 
developed a definition of small entities specifically applicable to 
payphone providers. The closest applicable definition under SBA rules 
is for telephone communications companies other than radiotelephone 
(wireless) companies. The most reliable source of information regarding 
the number of payphone providers nationwide of which we are aware 
appears to be the data that we collect annually in connection with the 
Telecommunications Reporting Worksheet, FCC Form 499-A. According to 
our most recent data, 936 companies reported that they were engaged in 
the provision of pay telephone services. Although it seems certain that 
some of these carriers are not independently owned and operated, or 
have more than 1,500 employees, we are unable at this time to estimate 
with greater precision the number of payphone providers that would 
qualify as small business concerns under SBA's definition. 
Consequently, we estimate that there are fewer than 936 small entity 
payphone providers that may be affected by this NRPM.
Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements
    18. Future rules may require carriers to submit status reports 
concerning the technologies they will use to provide DA services. Any 
costs incurred in generating such reports should be nominal for all 
carriers, including small entities. Costs incurred as a result of this 
proceeding on the entities affected, including any small businesses, 
will vary depending on the method of DA provision utilized and its 
underlying implementation costs. This proceeding may allow some small 
businesses to participate in the DA market for the first time, which 
would involve initial start-up costs. These costs, however, could be 
offset by future profits upon entering the market.
Steps Taken To Minimize Significant Impact on Small Entities, and 
Significant Alternatives Considered
    19. The RFA requires an agency to describe any significant 
alternatives that it has considered in reaching its proposed approach, 
which may include the following four alternatives (among others): (1) 
the establishment of differing compliance or reporting requirements or 
timetables that take into account the resources available to small 
entities; (2) the clarification, consolidation, or simplification of 
compliance or reporting requirements under the rule for small entities; 
(3) the use of performance, rather than design, standards; and (4) an 
exemption from coverage of the rule, or any part thereof, for small 
entities. 6 U.S.C. 603(c).
    20. This NRPM offers several possible methods of opening the local 
DA market up to competition. Each of these methods will have a 
different impact on small businesses. One alternative involves 
eliminating the 411 code for DA services. This alternative would 
provide expanded opportunities for small businesses to enter the 
market; however, the cost of market entry appears significant. This 
alternative is discussed in paragraph 45 of the NRPM. While this 
alternative provides a level playing field for all entities, it could 
also be the most technologically advanced requirement and the 
alternative with the greatest cost. A

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second alternative considered herein explores the possibility of using 
alternative dialing schemes (such as 555 numbers and abbreviated 411XX 
dialing codes). National 555 numbers were created to provide a variety 
of information and telecommunications services. In addition, 555 
numbers and 411XX codes could be used instead of the alternative of 411 
presubscription. Further comment on these thoughts is included in 
paragraphs 47 through 52 of the NRPM. These alternatives could be 
easier to implement and less costly for small businesses to enter the 
market. Both of these alternatives are designed to open the local DA 
market to competition. Our belief is that by enhancing competition, we 
have created a space for small businesses to enter the market.
Federal Rules That May Duplicate, or Conflict With the Proposed Rules
    20. None.
Report to Congress
    21. The Commission will send a copy of this NRPM, including a copy 
of this IRFA, in a report to Congress pursuant to the Small Business 
Regulatory Enforcement Fairness Act of 1996. In addition, the NRPM and 
this IRFA will be sent to the Chief Counsel for Advocacy of the Small 
Business Administration, and will be published in the Federal Register.
Ordering Clauses
    22. Pursuant to the authority contained in sections 1, 2, 3, 4, 
201, 202, 222, and 251 of the Communications Act of 1934, as amended, 
47 U.S.C. 151, 152, 153, 154, 201,202, 222, and 251 the NRPM is hereby 
adopted.
    23. The Commission's Consumer Information Bureau, Reference 
Information Center, shall send a copy of this NRPM, including the 
Initial Regulatory Flexibility Analysis, to the Chief Counsel for 
Advocacy of Small Business Administration.

Federal Communications Commission.
William F. Caton,
Acting Secretary.
[FR Doc. 02-3623 Filed 2-13-02; 8:45 am]
BILLING CODE 6712-01-P