[Federal Register Volume 70, Number 158 (Wednesday, August 17, 2005)]
[Rules and Regulations]
[Pages 48290-48291]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-16334]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 51

[CC Docket Nos. 96-98, 96-115, 99-273; FCC 05-93]


Requirements for Nondiscriminatory Access to Directory Assistance

AGENCY: Federal Communications Commission.

ACTION: Clarification.

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SUMMARY: This document denies BellSouth Corporation (BellSouth) and SBC 
Communications Inc.'s (SBC) joint request that the Federal 
Communications Commission (Commission) reconsider the Commission's 
conclusion that local exchange carriers (LECs) may not impose specific 
contractual restrictions on competing directory assistance (DA) 
providers' use of DA data obtained pursuant to section 251(b)(3) of the 
Communications Act of 1934, as amended. The Order on Reconsideration 
(Order) clarifies that competing DA providers may not, however, use 
data obtained pursuant to this section for purposes not permitted by 
the Act, the Commission's rules, or state regulations. The Order also 
denies petitioners' joint request that the Commission reconsider its 
conclusion that LECs are required to provide nondiscriminatory access 
to local DA data acquired from third parties. Finally, the Order denies 
SBC's petition for reconsideration of the Commission's determination 
that competing providers are entitled to nondiscriminatory access to 
operator services (OS), DA and features adjunct to these services.

DATES: Effective September 16, 2005.

FOR FURTHER INFORMATION CONTACT: Rodney McDonald, Attorney, Competition 
Policy Division, Wireline Competition Bureau, (202) 418-7513, or 
William Dever, Deputy Chief, Competition Policy Division, Wireline 
Competition Bureau, (202) 418-1578.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order 
on Reconsideration (Order) in CC Docket Nos. 96-98, 96-115, 99-273, FCC 
05-93, adopted April 29, 2005, and released May 3, 2005. The complete 
text of this document is available for inspection and copying during 
normal business hours in the FCC Reference Information Center, Portals 
II, 445 12th Street, SW., Room CY-A257, Washington, DC, 20554. This 
document may also be purchased from the Commission's duplicating 
contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room 
CY-B402, Washington, DC 20554, telephone (202) 488-5300, facsimile 
(202) 488-5563, or via e-mail at [email protected]. It is also available 
on the Commission's Web site at http://www.fcc.gov.

Synopsis of the Order on Reconsideration (Order)

Background

    1. Section 251(b)(3) of the Act imposes on LECs the ``duty to 
permit all [competing] providers [of telephone exchange service and 
telephone toll service] to have nondiscriminatory access to * * * 
directory assistance.'' In the Local Competition Second Report and 
Order (61 FR 47284-01, September 6, 1996), the Commission concluded 
that section 251(b)(3) requires LECs to provide such competing 
providers with access to DA equal to that which the LECs provide to 
themselves, and that LECs treat all such competitors equally.
    2. The Commission affirmed this conclusion in the subsequent SLI/DA 
Order on Reconsideration and Notice (64 FR 51910-01, September 27, 
1999) and determined that nondiscriminatory access under section 
251(b)(3) of the Act requires that all LECs provide competing providers 
of telephone exchange service and toll service with nondiscriminatory 
access to the LECs' directory assistance databases. The Commission 
further acknowledged that ``requesting carriers would not have 
nondiscriminatory access to operator services and directory assistance 
under section 251(b)(3) unless those carriers have access to adjunct 
features such as rating tables and customer information databases.'' 
SBC filed a petition for clarification or reconsideration of some of 
the Commission's conclusions in the SLI/DA Order on Reconsideration and 
Notice (64 FR 51910-01, September 27, 1999).
    3. In the SLI/DA First Report and Order (66 FR 10965-02, February 
21, 2001), the Commission explained that section 251(b)(3) provides 
competing DA providers with the same rights and obligations regarding 
DA data as it does to the providing LECs and concluded that ``section 
251(b)(3)'s requirement of nondiscriminatory access to a LEC's DA 
database thus does not contemplate continuing veto power by the 
providing LEC over the uses to which DA information is put.'' SBC and 
BellSouth filed a joint petition for reconsideration and/or 
clarification of certain conclusions made by the Commission in the SLI/
DA First Report and Order (66 FR 10965-02, February 21, 2001).

Discussion

    4. In this Order, we address a joint petition for reconsideration 
filed by SBC and BellSouth, and a separate petition for reconsideration 
filed by SBC. We further clarify conclusions made in the SLI/DA First 
Report and Order (66 FR 10965-02, February 21, 2001) and SLI/DA Order 
on Reconsideration and Notice (64 FR 51910-01, September 27, 1999). 
SBC/BellSouth request that the Commission reconsider its decision and 
restrict the purposes for which competing DA providers may use DA 
information, or alternatively establish that LECs may contractually 
impose their own restrictions. In particular, SBC/BellSouth argue that 
restrictions should include limits on resale and a prohibition on use 
for purposes other than DA and DA-like services, such as sales 
solicitation and telemarketing.
    5. Contractual Restrictions on the Use of DA Information. We deny 
SBC/BellSouth's petition for reconsideration of our determination 
regarding the scope of competing DA providers' access to DA databases. 
As we have previously noted, ``[s]ection 251(b)(3) does not, by its 
terms, limit the use of directory assistance data solely to the 
provision of directory assistance.'' As we have previously concluded, 
``nondiscriminatory access'' under section 251(b)(3) means that 
providing LECs must offer access equal to that which they provide 
themselves. We recognize that further restrictions on resale and other 
such use also might substantially increase the costs of providing 
competitive DA services, thereby reducing the benefits to consumers of 
competitive DA providers in the market.
    6. We also agree with commenters that argue that the Commission 
should not provide LECs with the authority to impose their own 
restrictions on the purposes for which competing DA providers may use 
DA information. We find that the imposition of such contractual 
restrictions by the providing LEC is inconsistent with the 
nondiscriminatory access requirements of section 251(b)(3).
    7. We clarify, however, that no language in the SLI/DA First Report 
and Order (66 FR 10965-02, February 21, 2001) was ever intended to 
grant competing DA providers greater latitude in their use of DA data 
than that permitted to providing LECs, or to permit competing DA 
providers to use that data in a manner inconsistent with Federal or 
state law or regulation. We again note that all qualified DA

[[Page 48291]]

providers, both providing LECs and competing DA providers, are subject 
to state limitations regarding use of accessed directory information 
(e.g., by prohibiting the sale of customer information to 
telemarketers), as long as those state regulations are consistent with 
the nondiscrimination requirements of section 251(b)(3) of the Act.
    8. We also note that section 51.217(c)(3) of the Commission's rules 
already balances the Commission's interests in ensuring 
nondiscriminatory access to DA, and in protecting customer privacy. The 
section indicates that even though a LEC shall not provide access to 
the unlisted number of its customers, it must ``ensure that access is 
permitted to the same directory information, including customer name 
and address, that is available to its own directory assistance 
customers.'' We clarify, however, that although competing DA providers 
may be entitled to nondiscriminatory access to DA information, all 
competing DA providers must adhere to the disclosed privacy requests of 
LEC customers for all DA information obtained pursuant to section 
251(b)(3). This means that, to the extent competing DA providers have 
received notice of a LEC customer's privacy requests, they must comply 
with such requests, and may not use or disclose any DA information that 
a LEC's customer has requested that the LEC not use or make available.
    9. We grant SBC/BellSouth's request insofar as they ask the 
Commission to agree that there is no statutory basis for allowing DA 
providers to use DA listings obtained pursuant to section 251(b)(3) of 
the Act for directory publishing. SBC/BellSouth submit that permitting 
such use would allow competing DA providers to avoid the statutory 
distinctions between directory assistance and directory publishing 
indicated by the separate treatment of these services under section 
251(b)(3) and section 222(e) of the Act. We agree, and note that in the 
SLI/DA First Report and Order (66 FR 10965-02, February 21, 2001), the 
Commission found that although the underlying databases for the two 
services are similar, they are not identical, and any seeming 
convergence between DA and directory publishing is not strong enough at 
this time to obviate the distinctions drawn by Congress in the Act.
    10. Nondiscriminatory Access to Local DA Listings Acquired from 
Third Parties. We are not persuaded by SBC/BellSouth's assertion that 
in instances where more than one facilities-based LEC serves a local 
area, LECs should not be required to provide nondiscriminatory access 
to local DA listings purchased from third parties. Rather, we agree 
that competitive DA providers are entitled to receive nondiscriminatory 
access to a LEC's entire local DA database pursuant to section 
251(b)(3) of the Act. We reaffirm that even though the Commission has 
declined to require LECs to provide nondiscriminatory access to 
nonlocal DA data, it has consistently required that LECs provide 
nondiscriminatory access to all of their local DA database listings.
    11. Nondiscriminatory Access to Operator Services, Directory 
Assistance and Features Adjunct to These Services. Finally, we deny 
SBC's separate petition for reconsideration of the Commission's 
determination regarding the scope of competing DA providers' access to 
operator services (OS), DA and the features adjunct to these services. 
SBC specifically requests that the Commission find that section 
251(b)(3) does not require that LECs provide ``unbundled'' access to 
all of the facilities used to provide OS/DA services, including adjunct 
features and software.
    12. We acknowledge that carriers are no longer required to provide 
OS/DA services as unbundled network elements (UNEs) under section 
251(c)(3). We note, however, that in coming to the conclusion that UNE 
access would no longer be necessary under that section, the Commission 
specifically recognized the continued obligation to provide 
nondiscriminatory access to OS/DA under section 251(b)(3). We reaffirm 
the Commission's determination that requesting carriers would not have 
nondiscriminatory access to operator services and directory assistance 
under section 251(b)(3) unless those carriers have access to these 
services in their entirety, including access to any adjunct features 
such as rating tables and customer information databases necessary to 
allow competing providers full use of these services.

Ordering Clauses

    13. Accordingly, it is ordered that, pursuant to the authority 
contained in sections 1, 4, 201, 222, and 251 of the Communications Act 
of 1934, as amended, 47 U.S.C. 151, 154, 201, 222, and 251, this Order 
on Reconsideration is adopted.
    14. It is further ordered that Qwest Corporation's Request to 
Withdraw its Pending Petition for Reconsideration is granted.
    15. It is further ordered that the above mentioned Petition for 
Clarification or, in the Alternative, Reconsideration filed by SBC/
BellSouth is granted in part and denied in part, to the extent 
discussed herein.
    16. It is further ordered that SBC Communications Inc.''s Request 
to Withdraw Issue in Its Pending Petition for Reconsideration is 
granted.
    17. It is further ordered that the Petition for Clarification or, 
in the Alternative, Reconsideration filed by SBC is denied, to the 
extent discussed herein.

    Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 05-16334 Filed 8-16-05; 8:45 am]
BILLING CODE 6712-01-P