[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
