[Federal Register Volume 70, Number 138 (Wednesday, July 20, 2005)]
[Proposed Rules]
[Pages 41655-41658]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-14179]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 52
[CC Docket No. 95-116; FCC 05-87]
Telephone Number Portability
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: This document seeks comment on an Initial Regulatory
Flexibility Analysis (IRFA) of the Intermodal Order concerning
wireline-to-wireless number portability. The Federal Communications
Commission will use the specific IRFA comments it receives in preparing
a Final Regulatory Flexibility Analysis in connection with the
Intermodal Order and in determining whether to modify the intermodal
porting rules with respect to their application to small entities in
light of the requirements of the Regulatory Flexibility Act (RFA).
DATES: Comments are due on or before August 19, 2005, and reply
comments are due on or before September 6, 2005.
[[Page 41656]]
ADDRESSES: You may submit comments, identified by CC Docket No. 95-116,
by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Agency Web Site: http://www.fcc.gov. Follow the
instructions for submitting comments on the http://www.fcc.gov/cgb/ecfs/.
E-mail: [email protected].
Mail: All filings must be addressed to the Commission's
Secretary, Office of the Secretary, Federal Communications Commission.
U.S. Postal Service first-class, Express, and Priority
mail should be addressed to 445 12th Street, SW., Washington DC 20554.
The Commission's contractor will receive hand-delivered or
messenger-delivered paper filings for the Commission's Secretary at 236
Massachusetts Avenue, NE., Suite 110, Washington, DC 20002.
Commercial overnight mail (other than U.S. Postal Service
Express Mail and Priority Mail) must be sent to 9300 East Hampton
Drive, Capitol Heights, MD 20743.
Instructions: All submissions received must include the agency name
and docket number for this proceeding. All comments received will be
posted without change to http://www.fcc.gov/cgb/ecfs/, including any
personal information provided. For detailed instructions on submitting
comments and additional information on the rulemaking process, see the
SUPPLEMENTARY INFORMATION section of this document.
Docket: For access to the docket to read background documents or
comments received, go to http://www.fcc.gov/cgb/ecfs/.
FOR FURTHER INFORMATION CONTACT: Jennifer Salhus, Attorney Advisor,
Spectrum and Competition Policy Division, Wireless Telecommunications
Bureau, at (202) 418-1310 (voice) or (202) 418-1169 (TTY) or Pam
Slipakoff, Attorney Advisor, Telecommunications Access Policy Division,
Wireline Competition Bureau at (202) 418-7705 (voice) or (202) 418-0484
(TTY).
SUPPLEMENTARY INFORMATION: This is a summary of the Federal
Communications Commission Public Notice released April 22, 2005, FCC
05-87. The full text of the Public Notice and its appendices is
available for inspection and copying during normal business hours in
the FCC Reference Center, Room CY-A257, 445 12th St., SW., Washington
DC 20554. The complete text may also be purchased from the Commission's
duplicating contractor, Qualex International, Portals II, 445 12th St.,
SW., Room CY-B402, Washington DC, telephone (202) 863-2893, facsimile
(202) 863-2898, or via e-mail [email protected]. Additionally, the
complete item is available on the Federal Communications Commission's
Web site at http://www.fcc.gov/wtb.
Synopsis of the Public Notice
On March 11, 2005, the United States Court of Appeals for the
District of Columbia Circuit remanded to the Federal Communications
Commission the Intermodal Order, concerning porting between wireline
and wireless carriers. See United States Telecom Ass'n v. FCC, 400 F.3d
29 (D.C. Cir. 2005). The Court determined that the Federal
Communications Commission had failed to prepare a Final Regulatory
Flexibility Analysis regarding the impact of the Intermodal Order on
small entities, as defined by the RFA, which the Court found to have
been required by the RFA, 5 U.S.C. 604. The Court accordingly directed
the Federal Communications Commission to prepare the required Final
Regulatory Flexibility Analysis, and stayed future enforcement of the
Intermodal Order ``only as applied to carriers that qualify as small
entities under the RFA'' until the agency prepares and publishes that
analysis. 400 F.3d at 43.
In the Public Notice, to prepare to comply with the Court's
direction, the Federal Communications Commission seeks comment on an
Initial Regulatory Flexibility Analysis of the Intermodal Order. The
Commission will use the specific IRFA comments it receives in preparing
a Final Regulatory Flexibility Analysis in connection with the
Intermodal Order and in determining whether to modify the intermodal
porting rules with respect to their application to small entities in
light of the requirements of the RFA. The Federal Communications
Commission also expects to publish a document amending 47 CFR Part 52
at a later date, pursuant to the Intermodal Order, which the court held
effectively amended the Federal Communications Commission's previous
legislative rule.
This is a ``permit but disclose'' proceeding pursuant to Sec.
1.1206 of the Commission's rules. Ex parte presentations that are made
with respect to the issues involved in the IRFA will be allowed but
must be disclosed in accordance with the requirements of Sec.
1.1206(b) of the Commission's rules.
Pursuant to Sec. Sec. 1.415 and 1.419 of the Commission's rules,
47 CFR 1.415, 1.419, interested parties may file comments and reply
comments on or before the dates indicated. Comments may be filed using:
(1) The Commission's Electronic Comment Filing System (ECFS), (2) the
Federal Government's eRulemaking Portal, or (3) by filing paper copies.
See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR
24121 (1998).
Electronic Filers: Comments may be filed electronically
using the Internet by accessing the ECFS: http://www.fcc.gov/cgb/ecfs/
or the Federal eRulemaking Portal: http://www.regulations.gov. Filers
should follow the instructions provided on the website for submitting
comments.
For ECFS filers, if multiple docket or rulemaking numbers
appear in the caption of this proceeding, filers must transmit one
electronic copy of the comments for each docket or rulemaking number
referenced in the caption. In completing the transmittal screen, filers
should include their full name, U.S. Postal Service mailing address,
and the applicable docket or rulemaking number. Parties may also submit
an electronic comment by Internet e-mail. To get filing instructions,
filers should send an e-mail to [email protected], and include the following
words in the body of the message, ``get form.'' A sample form and
directions will be sent in response.
Paper Filers: Parties who choose to file by paper must
file an original and four copies of each filing. If more than one
docket or rulemaking number appears in the caption of this proceeding,
filers must submit two additional copies for each additional docket or
rulemaking number.
Filings can be sent by hand or messenger delivery, by commercial
overnight courier, or by first-class or overnight U.S. Postal Service
mail (although we continue to experience delays in receiving U.S.
Postal Service mail). All filings must be addressed to the Commission's
Secretary, Office of the Secretary, Federal Communications Commission.
The Commission's contractor will receive hand-delivered or
messenger-delivered paper filings for the Commission's Secretary at 236
Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing
hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be
held together with rubber bands or fasteners. Any envelopes must be
disposed of before entering the building.
Commercial overnight mail (other than U.S. Postal Service
Express Mail and Priority Mail) must be sent to 9300 East Hampton
Drive, Capitol Heights, MD 20743.
U.S. Postal Service first-class, Express, and Priority
mail should be
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addressed to 445 12th Street, SW., Washington DC 20554.
People with Disabilities: Contact the FCC to request materials in
accessible formats (braille, large print, electronic files, audio
format, etc.) by e-mail at [email protected] or call the Consumer &
Governmental Affairs Bureau at 202-418-0531 (voice), 202-418-7365
(TTY).
Initial Regulatory Flexibility Analysis
As required by the Regulatory Flexibility Act, as amended, 5 U.S.C.
603, the Federal Communications Commission has prepared this Initial
Regulatory Flexibility Analysis of the possible significant economic
impact on a substantial number of small entities of the rules and
policies described in the Intermodal Order concerning wireline-to-
wireless number portability. 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 indicated on the Public
Notice. This is a summary of the full text of the IRFA. The full text
of the IRFA may be found at Appendix A of the full text of the Public
Notice. The Commission will send a copy of the IRFA to the Chief
Counsel for Advocacy of the Small Business Administration. See 5 U.S.C.
603(a). In addition, this will be published in the Federal Register.
A. Need for, and Objectives of, the Rules
1. The Intermodal Order involved rules and policies aimed at
ensuring wide availability of number portability for consumers across
the country. By making it easier for greater numbers of consumers to
switch freely among carriers, the Intermodal Order was intended to
promote competition and encourage carriers to provide new services and
lower prices for consumers. To obtain these objectives, the order
required porting to any wireless carrier whose ``coverage area''
overlaps the geographic location of the original rate center associated
with the number to be ported, provided that the porting-in carrier
maintains the number's original rate center designation following the
port. The order defined wireless ``coverage area'' as the area in which
wireless service can be received from the wireless carrier.
B. Legal Basis for Rules
2. The Intermodal Order was authorized under Sec. 52.23 of the
Federal Communications Commission's rules, 47 CFR 52.23, and in
Sections 1, 3, 4(i), 201, 202, 251 of the Communications Act of 1934,
as amended, 47 U.S.C. 151, 153, 154(i), 201, 202, and 251.
C. Description and Estimate of the Number of Small Entities To Which
the Rules Would Apply
3. 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. 603(b)(3). 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
Section 3 of the Small Business Act. 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 Small Business
Administration (SBA).
4. In this section, we describe and estimate the number of small
entities that may be affected by our action. The most reliable source
of information regarding the total numbers of certain common carriers
and related providers nationwide appears to be the data that the
Federal Communications Commission publishes in its Trends in Telephone
Service report. In addition, the SBA has developed size standards for
small businesses within the commercial census category of Wired
Telecommunications Carriers. Under this category, a business is small
if it has 1,500 or fewer employees. Below, we discuss the total
estimated numbers of small businesses that might be affected by our
actions.
5. Wired Telecommunications Carriers. The SBA has developed a small
business size standard for Wired Telecommunications Carriers, which
consists of all such companies having 1,500 or fewer employees.
According to Census Bureau data for 1997, there were 2,225 firms in
this category, total, that operated for the entire year. Of this total,
2,201 firms had employment of 999 or fewer employees, and an additional
24 firms had employment of 1,000 employees or more. Thus, under this
size standard, the majority of firms can be considered small. In
addition, limited preliminary census data for 2002 indicate that the
total number of wired communications carriers increased approximately
34 percent from 1997 to 2002.
6. Incumbent Local Exchange Carriers. We have included small
incumbent local exchange carriers (LECs) in this 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.'' 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 analysis, although we emphasize that this RFA action has no
effect on the Commission's analyses and determinations in other, non-
RFA contexts.
7. Neither the Commission nor the SBA has developed a small
business size standard specifically for incumbent local exchange
services. The appropriate size standard under SBA rules is for the
category Wired Telecommunications Carriers. Under that size standard,
such a business is small if it has 1,500 or fewer employees. According
to Commission data, 1,310 carriers have reported that they are engaged
in the provision of incumbent local exchange services. Of these 1,310
carriers, an estimated 1,025 have 1,500 or fewer employees and 285 have
more than 1,500 employees. Consequently, the Commission estimates that
most providers of incumbent local exchange service are small entities.
8. Competitive Local Exchange Carriers, Competitive Access
Providers (CAPs), ``Shared-Tenant Service Providers,'' and ``Other
Local Service Providers.'' Neither the Commission nor the SBA has
developed a small business size standard specifically for these service
providers. The appropriate size standard under SBA rules is for the
category Wired Telecommunications Carriers. Under that size standard,
such a business is small if it has 1,500 or fewer employees. According
to Commission data, 563 carriers have reported that they are engaged in
the provision of either competitive access provider services or
competitive LEC services. Of these 563 carriers, an estimated 472 have
1,500 or fewer employees and 91 have more than 1,500 employees. In
addition, 14 carriers have reported that they are ``Shared-Tenant
Service Providers,'' and all 14 are estimated to have 1,500 or fewer
employees. In addition, 37 carriers have reported that they are ``Other
Local Service Providers.'' Of the 37, an estimated 36 have 1,500 or
fewer employees and one has more than 1,500 employees. Consequently,
the Commission estimates that most providers of competitive local
exchange service, competitive access providers, ``Shared-Tenant Service
Providers,'' and
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``Other Local Service Providers'' are small entities.
D. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements for Small Entities
9. Requiring porting beyond wireline rate center boundaries could
impose compliance burdens on small entities. First, by making porting
more widely available, the requirement may increase the amount of
telephone numbers that small carriers may be required to port. To
handle this increased porting volume, small carriers may need to add
personnel, update porting procedures, or upgrade software. In addition
to the compliance burdens associated with increased porting volume,
porting beyond wireline rate center boundaries may cause small or rural
carriers to incur transport costs associated with delivering calls to
ported numbers served by distant switches. We seek comment on the costs
associated with these potential compliance burdens.
10. In addition to the impacts associated with transporting calls
to ported numbers, by making it easier for more consumers to port, the
requirements may cause small or rural carriers to lose customers. Small
carriers have expressed concern that permitting porting beyond wireline
rate center boundaries would give large wireless carriers an unfair
competitive advantage over smaller LECs by making it easier for more
consumers to port numbers to larger nationwide carriers.
E. Steps Taken To Minimize Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
11. 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.
12. The Federal Communications Commission has previously addressed
concerns raised by small and rural carriers when considering intermodal
portability issues. Specifically, the Intermodal Order considered
limiting the scope of intermodal porting based on the small carrier
concern that requiring porting to a wireless carrier that does not have
a physical point of interconnection or numbering resources in the rate
center associated with the ported number would give wireless carriers
an unfair competitive advantage. The order found however, that these
considerations did not justify denying wireline consumers the benefit
of being able to port their numbers to wireless carriers. In addition,
the order noted that each type of service offers its own advantages and
disadvantage and that consumers would consider these attributes in
determining whether or not to port their numbers. The Intermodal Order
also considered the concern expressed by small carriers that requiring
porting beyond wireline rate center boundaries would lead to increased
transport costs. The order concluded that such concerns were outside
the scope of the number portability proceeding and noted that the
rating and routing issues raised by the rural wireline carriers were
also implicated in the context of non-ported numbers and were before
the Federal Communications Commission in other proceedings.
13. The order also, for wireline carriers operating in areas
outside of the 100 largest MSAs, waived, until May 24, 2004, the
requirement that these carriers port numbers to wireless carriers that
do not have a point of interconnection or numbering resources in the
rate center where the customer's wireline number is provisioned. The
order noted that the transition period would help ensure a smooth
transition for carriers operating outside of the 100 largest MSAs and
provide them with sufficient time to make necessary modifications to
their systems. The order also noted that carriers could file petitions
for waiver of their obligation to port numbers to wireless carriers, if
they could provide substantial, credible evidence that there are
special circumstances that warrant departure from existing rules.
14. In addition to the steps taken by the Federal Communications
Commission, pursuant to section 251(f)(2) of the Communications Act of
1934, as amended, carriers with fewer than two percent of the nation's
subscriber lines in the aggregate nationwide may petition state
commissions to suspend or modify the LNP requirements. Under the terms
of section 251(f)(2), the state commission shall grant such petition to
the extent that, and for such duration as, the state commission
determines that such suspension or modification: (A) Is necessary to
avoid a significant adverse economic impact on end users, to avoid
imposing an unduly economically burdensome requirement, or to avoid
imposing a technically infeasible requirement; and (B) is consistent
with the public interest, convenience, and necessity. Numerous
petitions have been filed with state commissions since the Intermodal
Order's release and in many of these cases, states have granted
temporary or permanent relief from LNP requirements to small carriers.
We seek comment on the effectiveness of this mechanism for addressing
any potential burdens on small carriers.
F. Overlapping, Duplicating, or Conflicting Federal Rules
14. None.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 05-14179 Filed 7-19-05; 8:45 am]
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