01-4213. Provision of Directory Listing Information Under the Telecommunications Act of 1934

AGENCY:

Federal Communications Commission.

ACTION:

Final rule.

SUMMARY:

This document adopts some of the tentative conclusions contained in the Subscriber List Information/Directory Assistance Order and Notice of Proposed Rulemaking (SLI/DA Order and Notice). Specifically, the Federal Communications Commission (Commission) concludes that competing directory assistance (DA) providers that offer call completion services provide telephone exchange or telephone toll service and thus are entitled to nondiscriminatory access to all local exchange carrier (LEC) directory assistance, including access to LEC local directory-assistance databases compiled by LECs. In this First Report and Order, the Commission also resolves issues relating to directory publishing, specifically, the Commission concludes that the language concerning directory publishing “in any format” encompasses telephone directories on the Internet.

DATES:

Effective February 21, 2001.

FOR FURTHER INFORMATION CONTACT:

Gregory Cooke, 202/418-2351, Fax [phone], TTY 202/418-0484, [e-mail], Network Services Division, Common Carrier Bureau, or Pam Slipakoff, 202/418-7705, Fax [phone], TTY 202/418-0484, [e-mail], Network Services Division, Common Carrier Bureau.

SUPPLEMENTARY INFORMATION:

This is a summary of the Commission's First Report and Order, CC Docket No. 99-273, FCC 01-27 (First Report and Order), adopted January 19, 2001 and released January 23, 2001. The full text of the First Report and Order is available for inspection and copying during the weekday hours of 9 a.m. to 4:30 p.m. in the FCC Reference Center, Room CY-A257, 445 12th Street, SW, Washington, DC 20554, or copies may be purchased from the Commission's copy contractor, International Transcription Services, Inc., 445 12th Street, SW, Suite CY-B400, Washington, DC 20554, phone [phone].

Synopsis of the First Report and Order in CC Docket No. 99-273

1. In September 1999, the Commission released SLI/DA Order and Notice, CC Docket Nos. 96-115, 96-98, 99-273, Third Report and Order, Second Order on Reconsideration, and Notice of Proposed Rulemaking, 14 FCC Rcd 15550 (1999), 64 FR 51910 (September 9, 1999) in which the Commission tentatively concluded that the presence of competing directory assistance providers benefits competition and that such providers are unable fully to compete without nondiscriminatory access to the incumbent LECs' directory assistance databases. This First Report and Order adopts some of the tentative conclusions contained in the SLI/DA Order and Notice.

2. Specifically, in the First Report and Order, the Commission concludes that under section 251(b)(3) of the Communications Act of 1934, as amended by the Telecommunications Act of 1996 (the Act), competing DA providers that provide offer call completion services for local or toll calls provide telephone exchange or telephone toll service, respectively, as defined within the Act, and thus are entitled to nondiscriminatory access to all directory assistance, including access to local directory-assistance databases compiled by LECs. In this First Report and Order the Commission also stated that the competitive provision of directory assistance is a necessary element of competitive local telecommunications market, and that Congress recognized it as such in section 251 of the Act. To the extent that such DA providers qualify under section 251(b)(3) of the Act, the Commission finds that LEC failure to provide such action not only violates section 251(b)(3), but may also violate section 201(b).

3. In the First Report and Order, the Commission also explains that, where a DA provider completes the call and charges the customer, this service comes within the meaning of telephone exchange service and telephone toll services as defined in sections 3(47) and 3(48) of the Act, respectively. DA providers that qualify for nondiscriminatory access under section 251(b)(3) of the Act also are subject to obligations such as contributing for universal service, Telecommunications Relay Service, paying appropriate assessments for Local Number Portability administration, and North American Numbering Plan Administration.

4. In addition, the Commission concludes that when a competing local exchange carrier (CLEC) or an interexchange carrier (IXC), having entered an interconnection agreement with the relevant LEC, designates a DA provider to act as their agent, that competing DA provider is entitled to nondiscriminatory access to the providing LECs' local DA database. The Commission declines to adopt rules permitting the LEC to restrict the use of subscriber information to the specific carrier-principal for which the purchase was made. Furthermore, the Commission declines to limit the manner in which DA providers use the information beyond the limitation announced in the Local Competition Second Report and Order.

5. In the SLI/DA Order and Notice the Commission sought comment on whether DA providers falling outside of 251(b)(3) would nevertheless qualify for protection under sections 201(b) and 202(a). The Commission does not address these issues in the First Report and Order, but may address them in a separate proceeding.

6. The Commission also concludes that LECs are not required to grant competing DA providers nondiscriminatory access to non-local directory assistance databases that the LECs acquire form third parties because LECs do not exercise bottleneck control over such databases. However, to the extent that a carrier provides access to national DA information to any other DA provider, including another LEC, it must make that same information available to competing DA providers under nondiscriminatory rates, terms, and conditions as required by this First Report and Order.

7. In addition, section 251(b)(3) of the Act and the Commission's rules prohibit LECs from charging discriminatory rates for access to DA databases to competing DA providers that fall within the protection of that section. Thus, LECs must offer access to their DA database at rates that do not discriminate among the entities to which they provide access. Further, failure to provide directory assistance at nondiscriminatory and reasonable rates to DA providers within the protection of section 251(b)(3) may also constitute an unjust charge under section 201(b). The Commission notes that for its requirement that LECs charge nondiscriminatory rates for DA to have any effect, competing DA providers must have access to the pertinent terms, conditions, and pricing data. Thus, in order to make this nondiscrimination requirement meaningful, the Commission would expect carriers to comply with section 252 and make rates, terms, and conditions data available to requesting parties in a timely manner. The Commission also declines to adopt, for DA purposes, the rate methodology for subscriber list information under section 222(e) of the Act. It concludes that, because of the statutory differences between directory assistance and directory publishing, the Commission can not at this time justify setting a rate that would apply to both access to directory assistance databases and directory publishing. The Commission's decision not to impose a specific pricing structure on directory assistance notwithstanding our jurisdiction over DA does not preclude a state commission from doing so. In such cases, the Commission would adopt the state rate as its own, subject to the Title II requirements of reasonableness and nondiscrimination as set forth in this order. Parties that wished to challenge such rates on the basis of non-compliance with Title II could do so before the Commission in an enforcement proceeding.

8. The First Report and Order also resolves other issues relating to directory publishing. Specifically, the Commission concludes that the language concerning directory publishing “in any format” in section 222(e) of the Act applies to entities that seek subscriber list information to publish telephone directories on the Internet. In addition, because an Internet directory is published when Internet users are able to access it, a directory publisher that requests subscriber list information for purposes of placing it on the Internet is seeking that information “for the purpose of publishing a directory” within the meaning of section 222(e). The Commission finds that extending the guarantees of section 222(e) to publishers of telephone directories on the Internet will further enhance competition in the market for directory publishing. In addition, the Commission believes that specific LEC-mandated use restrictions are not necessary to ensure that the interests of LECs are protected. Thus, the Commission concludes that publishers of telephone directories on the Internet should be permitted to use the data for the purpose for which it was purchased and should not be restricted in the manner in which they display or allow customers to access the data.

9. Finally, the Commission finds that the oral provisioning of directory assistance does not constitute “publication” for the purposes of section 222(e), and thus conclude that directory assistance should not be regulated under that section. The Commission also concludes that the statutory differences between directory assistance and directory publishing should continue to be observed. In the future, if directory assistance and directory publishing evolve to resemble one another more closely, the Commission may revisit this issue.

Final Regulatory Flexibility Analysis

10. As required by the Regulatory Flexibility Act (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the Notice of Proposed Rule Making (Notice) in this docket, CC Docket No. 99-273. The Commission sought written public comment on the proposals in the Notice, including comment on the IRFA. No comments on the IRFA were received. This present Final Regulatory Flexibility Certification (Final Certification) conforms to the RFA.

11. The RFA requires an analysis of any notice-and-comment type rule making if the rule will result in a “significant economic impact” on “a substantial number of small entities.” There are four categories of entities that might be affected by the requirements contained in this First Report and Order. None of these categories reaches the threshold of a significant economic impact on a substantial number of small entities. First, the requirements adopted herein are expected to have a significant positive economic impact on a substantial number of small competitive directory assistance providers and small directory publishers. Although, the requirements included in this First Report and Order do not directly affect these entities, the requirements, once in place, should ensure the ability of these entities to provide services on a competitively neutral basis. Second, the Commission expects these requirements to have a positive economic impact on some CLECs. Many CLECs, both small and large, rely upon small competitive directory assistance providers to outsource their directory assistance services; the requirements contained herein should result in more competition in the directory assistance arena and therefore a savings to these CLECs. Third, these requirements may have an adverse economic impact on incumbent LECs that are Bell Operating Companies (BOCs). Each BOC is a large, national company, affiliated with a Regional Holding Company (RHC). All BOCs and their RHCs have more than 1,500 employees, placing these entities above the small business size standard established by the Small Business Administration. Therefore, although the effect of these requirements may result in a “significant economic impact” to a BOC it will not result in a “significant economic impact” to a small entity. Fourth, the Commission anticipates that any cost incurred as a result of the requirement that small incumbent LECs electronically transfer their directory assistance data will be nominal and will not result in a “significant economic impact” on these small entities. The Commission therefore certifies, pursuant to the RFA, that the requirements adopted in the present First Report and Order will not have a significant economic impact on a substantial number of small entities.

Report to Congress

12. The Commission will send a copy of this First Report and Order, including a copy of this Final Certification, in a report to Congress pursuant to the Small Business Regulatory Enforcement Fairness Act of 1996. In addition, the First Report and Order and this Final Certification will be sent to the Chief Counsel for Advocacy of the Small Business Administration, and will be published in the Federal Register.

Ordering Clauses

13. Pursuant to Sections 1, 3, 4, 201, 222, 251 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 153, 154, 201, 222, and 251, the First Report and Order is hereby Adopted, and the requirements contained herein will become effective February 21, 2001.

14. The Commission's Consumer Information Bureau, Reference Information Center, Shall send a copy of this First Report and Order, including the Final Regulatory Flexibility Certification, to the Chief Counsel for Advocacy of Small Business Administration.

15. The Final Regulatory Flexibility Certification for this First Report and Order, pursuant to the Regulatory Flexibility Act, 5 U.S.C. 604, is contained herein.

Federal Communions Commission.

Magalie Roman Salas,

Secretary.