[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] ----------------------------------------------------------------------- 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. ----------------------------------------------------------------------- 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. * * * * * [FR Doc. 98-30495 Filed 11-13-98; 8:45 am] BILLING CODE 6712-01-P