[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.

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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]
BILLING CODE 6712-01-P