Before the

Federal Communications Commission

Washington, D.C. 20554

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| In the Matter of                 | * | CC Docket No. 95-155         |
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| Toll Free Service Access Codes   | ) | NSD File No. L-99-87         |
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| Database Services Management,    | * | NSD File No. L-99-88         |
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| Beehive Telephone Company        | * |                              |
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**FIFTH REPORT AND ORDER in CC Docket No. 95-155**

**ORDER in NSD File No. L-99-87**

**ORDER in NSD File No. L-99-88**

**Adopted:** June 28, 2000 **Released:** July 5, 2000

By the Commission:

I. INTRODUCTION [2](#introduction)

II\. BACKGROUND [2](#background)

A. Overview - The Toll Free Service System
[2](#overview---the-toll-free-service-system)

B. History of Toll Free Service and Section 251 Requirements
[4](#history-of-toll-free-service-and-section-251-requirements)

C. History of the Beehive-DSMI Dispute
[6](#history-of-the-beehive-dsmi-dispute)

III\. DISCUSSION [7](#discussion)

A. Toll Free Number Access Codes Proceeding
[8](#toll-free-number-access-codes-proceeding)

1\. Evaluation of DSMI's Impartiality
[8](#evaluation-of-dsmis-impartiality)

2\. Toll Free Administrative System Structure
[11](#toll-free-administrative-system-structure)

B. Petitions for Declaratory Ruling
[13](#petitions-for-declaratory-ruling)

IV\. ORDERING CLAUSES [17](#ordering-clauses)

# INTRODUCTION

1.  In this Order, we resolve outstanding issues raised in our toll free
    number rulemaking proceeding[^1] related to the propriety of
    Database Service Management Inc. (DSMI) serving as an administrator
    of the toll free number database system as well as related issues
    referred to the Commission from the United States District Court for
    the District of Utah.[^2] We approve the recommendation of the North
    American Numbering Council (NANC) that DSMI continue to serve as the
    administrator of the toll free number database system, referred to
    as the SMS/800 system, at this time. We find that DSMI is an
    impartial administrator under section 251(e)(1) of the
    Communications Act.[^3] We also resolve seven specific issues
    presented in petitions for declaratory ruling filed by Beehive
    Telephone Company (Beehive) and DSMI, following court referral,
    relating to the propriety of DSMI's administration of the SMS/800
    system, and the revocation of toll free numbers assigned to Beehive.
    In doing so, we conclude that access to the SMS/800 database is
    properly tariffed and administered as a common carrier service. We
    further conclude that the Commission's determination that access to
    call-related databases and service management systems are unbundled
    network elements under section 251(c)(3)[^4] does not invalidate the
    existing interstate tariff under which toll free service providers
    purchase access to the centralized SMS/800 database offered
    collectively by the Bell Operating Companies (BOCs). Finally, we
    direct the North American Numbering Council (NANC) to provide
    recommendations on restructuring the ownership and operation of the
    current system of toll free number administration.

# BACKGROUND

## Overview - The Toll Free Service System

2.  Toll free service is an interexchange service in which subscribers
    agree in advance to pay for all calls made to them using a
    predesignated toll free telephone number. Toll free numbers are
    contained in a centralized database, the Service Management
    System/800 (SMS/800) database, and use of the database is offered
    jointly by the BOCs through a tariff.[^5] This centralized toll free
    number administration system has the following components:

    [SMS/800 Database]{.underline}. The SMS/800 database contains all
    toll free numbers in the North American Numbering Plan, along with
    electronic records for those numbers. The records include
    information such as the identity of the subscribers' telephone
    numbers to which toll free calls will be routed (area code +
    NXX-XXXX), the identity of the interexchange carriers (IXCs) that
    will transport the calls, and billing information. The database is
    updated when toll free numbers are assigned or disconnected and
    reassigned.

> [Service Control Points (SCPs)]{.underline}. Service control points
> (SCPs) are regional databases that contain routing instructions for
> the toll free numbers located in their particular geographic regions.
> They are owned and operated, usually by LECs, independently of the
> centralized SMS/800 database. Information from the centralized SMS/800
> database is periodically downloaded to the SCPs. When a toll free
> number is dialed by a caller, the call is momentarily suspended while
> the LEC on whose network the call originates interacts with a regional
> SCP to obtain the necessary information to route the call, via the
> designated interexchange carrier, to its destination. Thus, unlike the
> centralized SMS/800 database, the SCPs primarily facilitate the
> routing of toll free calls.

3.  The following entities play a role in toll free number
    administration:

> [The Bell Operating Companies (BOCs)]{.underline}. The BOCs, which
> collectively created and own the SMS/800 database, provide for access
> to the SMS/800 database through a tariff.[^6] The BOCs contract with
> the SCP owner-operators to provide periodic updates and downloads of
> toll free number routing information stored in the SMS/800 centralized
> database.[^7] They also subcontract with several other entities to
> provide hardware, software, and maintenance services: the SMS/800 Data
> Center is operated by SBC Corporation, which provides hardware
> operation, performance monitoring, and SCP operator support; Telcordia
> (formerly Bellcore and also formerly owned by the BOCs) is the
> subcontractor that provides SMS/800 Software Support; and Sykes
> Enterprises is the subcontractor that operates the SMS/800 Help Desk.
> Representatives of the BOCs also comprise the SMS Management Team
> (SMT), which is responsible for coordination of SMS/800 services.
>
> [Database Services Management, Inc. (DSMI)]{.underline}. DSMI, a
> subsidiary of Telcordia, is under contract with the BOCs' SMT, and
> serves as their Business Representative. In this capacity, DSMI
> maintains financial records and general oversight of the SMS/800
> database, collects charges from users of the SMS/800 Tariff, and
> certifies potential users as RespOrgs to gain access to the SMS/800
> database.[^8]
>
> [Responsible Organizations (RespOrgs)]{.underline}. RespOrgs are
> carrier and non-common carrier entities that are certified by DSMI to
> access and use information in the centralized SMS/800 database.
> RespOrgs search for and reserve toll free numbers for their customers,
> and create and maintain the associated call processing records that
> are stored in the centralized SMS/800 database. Under the terms of the
> SMS/800 Tariff, RespOrgs pay monthly charges for each number they
> reserve or manage. Currently there are approximately 200 RespOrgs.
>
> [Subscribers]{.underline}. Subscribers obtain their toll free numbers
> from RespOrgs, under individual customer agreements. Subscribers
> include both companies and individual consumers who use their toll
> free numbers for personal and business purposes, and for access to
> such services as voice mail and paging devices.

## History of Toll Free Service and Section 251 Requirements

4.  In 1967, AT&T began providing toll free service. Following AT&T's
    1984 breakup,[^9] the BOCs succeeded AT&T in providing toll free
    number "area-of-service routing," which is the routing of calls by
    local exchange carriers to the appropriate IXCs, depending upon the
    local access and transport area (LATA) in which the calls
    originated.[^10] Initially, the BOCs accomplished this by
    associating a particular NXX[^11] with a particular carrier. That
    system, however, precluded "portability," which is the ability of
    subscribers to change IXCs while retaining the same toll free
    number. Thus, subscribers wishing to change their IXCs had to change
    their toll free numbers in order to do so.

5.  In 1993, the Commission mandated that the BOCs develop a centralized
    database system to facilitate toll free number portability. Under
    this system, all toll free numbers are contained in a centralized
    database, and the LEC originating a call reads the entire number,
    interacts with the SCP to determine the IXC designated to carry the
    call, and transmits the call accordingly. Subscribers can thus
    change RespOrgs or IXCs without changing their toll free telephone
    numbers.[^12] At the same time, the Commission also required that
    the service be offered as a common carrier service under tariff, to
    ensure that the service would be offered on a non-discriminatory
    basis and at reasonable rates.[^13]

6.  In 1995, the industry informed the Commission that available 800
    toll free numbers were being depleted at an accelerated pace and
    were likely to run out before the scheduled roll-out of the first
    new toll free access code, 888, on March 1, 1996. The Commission
    therefore instituted the Toll Free Access Codes proceeding and
    proposed rules to ensure that toll free numbers would be allocated
    on a fair, equitable, and orderly basis.[^14] The Commission also
    took steps to conserve the use of toll free numbers to preclude a
    temporary shutdown of the toll free database system that might have
    resulted from an overload in the reservation process for the new 888
    numbers.[^15]

7.  In 1996, section 251 was added to the Communications Act as part of
    the Congressional effort to open local markets to competition.[^16]
    Section 251(c) specifically imposes certain additional obligations
    upon incumbent local exchange carriers (ILECs). Among other things,
    it requires ILECs to allow potential competitors to interconnect
    with their networks[^17] and to give them access to unbundled
    network elements (UNEs) so that the competitors can provide the same
    services to end-users that the ILECs provide.[^18] Only UNEs that
    are designated by the Commission are subject to those
    requirements.[^19] Section 251(e) requires the Commission to
    \"create or designate one or more impartial entities to administer
    telecommunications numbering and to make such numbers available on
    an equitable basis."[^20] It also requires that \"\[t\]he cost of
    establishing telecommunications numbering administration
    arrangements and number portability shall be borne by all
    telecommunications carriers on a competitively neutral basis as
    determined by the Commission.\"[^21]

8.  In 1997, in connection with the *Toll Free Access Codes Second
    Report and Order*, the Commission sought comment on who should
    administer the SMS/800 database system in light of the requirements
    of section 251.[^22] Following receipt of comments, the Commission
    in the *Third Report and Order* concluded that, as then structured,
    the administration of the toll free number database by DSMI (then a
    subsidiary of the BOC-owned Bellcore) was inconsistent with the
    requirement in section 251(e) that the numbering administrator be
    impartial.[^23] The Commission stated, however, that the record was
    not adequate to determine who should administer the toll free number
    database. Accordingly, in the *Third Report and Order* the
    Commission directed the North American Numbering Council (NANC) to
    examine the issue of toll free number administration and recommend
    an entity to assume the duties of toll free number
    administration.[^24]

9.  In 1998, in response to the Commission's directive, the NANC
    submitted a letter recommending that DSMI remain the toll free
    number database administrator. [^25] The NANC stated in its letter
    that Bellcore had recently been sold to Science Applications
    International Corporation (SAIC), which is not identified with any
    particular segment of the telecommunications industry, and
    determined that its subsidiary DSMI was therefore an impartial and
    neutral administrator.[^26] In a public notice, the Commission
    requested comments on the NANC's recommendation.[^27] In their
    comments, Telcordia, Ameritech, Bell Atlantic, BellSouth, SBC and US
    West generally supported the NANC's recommendation, whereas Beehive,
    AT&T, MCI WorldCom, and Sprint (non-BOC RespOrgs) strongly opposed
    it.[^28] We address the NANC's recommendation below.[^29]

## History of the Beehive-DSMI Dispute 

10. The petitions for declaratory ruling that we resolve in this Order
    arise from a dispute originating in 1989, at which time Beehive
    Telephone Company, Inc. (Beehive), an incumbent local exchange
    carrier, received from Bellcore 10,000 toll free numbers in the
    "800" numbering plan area with the NXX prefix 629. In 1993, when the
    centralized database system was created, Beehive was authorized to
    act as a RespOrg. In 1994, after Beehive failed to pay service and
    late payment charges in accordance with the terms of the SMS/800
    Tariff, DSMI revoked Beehive's RespOrg status and suspended services
    to Beehive. DSMI then requested that Beehive direct its customers to
    select a new RespOrg. After Beehive failed to do so, DSMI began
    disconnecting the numbers.

11. In 1996, DSMI filed a suit in federal district court to collect
    Beehive's unpaid charges.[^30] Beehive then tendered payment to
    DSMI, but also filed an answer and a five-count counterclaim. In
    1997, Beehive re-qualified as a RespOrg, and amended its
    counterclaim by adding two more counts. In late 1998, the United
    States Court of Appeals for the Tenth Circuit remanded the case to
    the district court with directions to refer all seven counts of
    Beehive's amended counterclaim to this Commission under the doctrine
    of primary jurisdiction.[^31]

12. In January and February 1999, following referral, Beehive and DSMI
    filed separate petitions for declaratory ruling with the Commission,
    both presenting the same seven issues that Beehive raised in its
    counterclaims. Beehive ultimately seeks an order that would require
    DSMI to pay it damages and to restore the 10,000 numbers in question
    to Beehive's control.[^32] The seven issues include whether DSMI is
    impartial under section 251(e)(1), a matter that was raised in the
    Toll Free Access Codes proceeding. The remaining issues are: (1)
    whether access to the SMS/800 database system is legally tariffed as
    a common carrier service or whether it must be provided exclusively
    as a UNE under section 251(c); (2) whether the costs of the SMS/800
    system are borne by all carriers on a competitively neutral basis,
    as required by section 251(e)(2);[^33] (3) whether DSMI may legally
    discontinue providing SMS/800 service; (4) whether DSMI may
    administer the SMS/800 system under tariff even though DSMI is not a
    common carrier; (5) whether DSMI gave proper notice before
    discontinuing service to Beehive; and (6) whether Beehive held a
    constitutionally protected property interest in toll free numbers
    that DSMI violated by discontinuing service to Beehive.[^34]

13. In November 1999, the Commission requested comments on the issues
    raised in the petitions for declaratory ruling.[^35] In the comments
    filed, discussed below, MCI WorldCom supports Beehive on all issues,
    the BOCs support DSMI on all issues; and Sprint supports Beehive on
    some issues and DSMI on others.[^36]

# DISCUSSION

14. We first address the outstanding issues in the *Toll Free Access
    Codes* proceeding regarding whether DSMI is an impartial toll free
    number administrator. We then address the seven issues raised in
    Beehive's and DSMI's petitions for declaratory ruling.

## Toll Free Number Access Codes Proceeding

15. In the *Third Report and Order,* the Commission concluded that, as
    then structured, DSMI's administration of the toll free number
    database was inconsistent with section 251(e)(l)*.* In this section,
    we address whether DSMI currently is impartial within the meaning of
    section 251(e)(l). We find below that DSMI meets the impartiality
    requirements in section 251(e)(1) of the Act, and thus may continue
    to serve as the toll free number database administrator. We also
    seek recommendations from the NANC on restructuring the ownership
    and operation of the current system of toll free number
    administration, and on the technical requirements for selecting a
    toll free number administrator through a competitive bidding
    process.

### Evaluation of DSMI's Impartiality 

16. Section 251(e) requires the Commission to create or designate one or
    more impartial entities to administer telecommunications numbering
    and ensure that such numbers are made available on an equitable
    basis, and requires the costs of number administration to be borne
    by all telecommunications carriers on a competitively neutral
    basis.[^37] The Commission set forth criteria for determining
    whether an entity meets these neutrality requirements in section
    52.12 of its regulations in the *Number Administration Third Report
    and Order*.[^38] Recently, the Commission applied these requirements
    to determine the neutrality of an entity seeking to replace Lockheed
    Martin IMS Corporation as the North American Numbering Plan
    Administrator, which administers standard geographic telephone
    numbers.[^39] Although the toll free number administration system
    differs from the method used to administer the North American
    Numbering Plan, both are "telecommunications numbering"
    administrative systems, and thus are governed by section 251(e) and
    the Commission's neutrality regulations implementing this provision.

17. Because DSMI is the entity that administers the toll free numbering
    system pursuant to the SMS Tariff,[^40] we apply the same neutrality
    criteria to DSMI that we applied in evaluating the neutrality of the
    NANP administrator.[^41] The neutrality criteria serve three
    purposes.[^42] First, they ensure that entities seeking to
    participate in the telecommunications marketplace obtain timely and
    efficient access to numbering resources, and that no particular
    industry segment is favored or disadvantaged. The criteria also
    ensure that the administrator remains neutral in order to maintain
    the trust and confidence of the entities that must submit sensitive
    information to the administrator in its numbering administration
    activities. Finally, the criteria ensure that the administrator is
    able to comply with its obligations without excessive Commission
    oversight. The first two criteria are objective, quantifiable
    measures intended to prevent the administrator from maintaining
    financial relationships with telecommunications service providers
    that could exert control over the decisions and activities of the
    administrator or otherwise compromise its impartiality. The third
    criterion affords the Commission broad discretion to determine
    whether the entity is subject to undue influence by parties with a
    vested interest in the outcome of numbering administration
    activities.[^43]

18. The Commission's previous determination that the administration of
    the toll free number database by DSMI was inconsistent with the
    impartiality requirement in section 251(e) was based on the
    relationship between the BOC-owned Bellcore (parent) and DSMI
    (subsidiary). The Commission did not, at that time, determine
    whether DSMI would be subject to undue influence under the third
    criterion of the neutrality test. Rather than disqualify DSMI simply
    because of its relationship with the BOCs, however, we think the
    better approach is to evaluate DSMI's neutrality under all three
    neutrality criteria.

19. *Criterion One: Affiliate Relationship with Telecommunications
    Providers*. Section 52.12(a)(1)(I) of our regulations provides that
    the administrator may not be an affiliate of any telecommunications
    service provider(s) as defined in the Telecommunications Act of
    1996.[^44] An "affiliate" is a person who controls, is controlled
    by, or is under the direct or indirect common control of another
    person. "A person shall be deemed to control another if such person
    possesses, directly or indirectly . . . (i ) an equity interest of
    at least ten percent in the other person; (ii) the power to vote at
    least ten percent of the equity interest in the other person;
    or (iii) the power to direct or cause the direction of the
    management and policies of such other person . . . ." [^45]

20. DSMI is a subsidiary of Telcordia, the successor to Bellcore, which
    in turn is a wholly owned subsidiary of Science Applications
    International Corporation (SAIC).[^46] SAIC is an employee-owned
    company with no financial affiliations with any telecommunications
    service provider, and neither Telcordia nor SAIC is itself a
    telecommunications provider.[^47] Following the sale of Bellcore to
    SAIC, the NANC opined that DSMI, because it is no longer a
    subsidiary of an entity owned by the BOCs, is an impartial and
    neutral administrator.[^48]

21. DSMI has an affiliate relationship with both Telcordia and SAIC,
    neither of which is a telecommunications service provider. Nothing
    in the record indicates that DSMI is an affiliate, as defined in our
    rules, of any other telecommunications service provider. We
    therefore conclude that the requirements of Criterion One are
    satisfied.

22. *Criterion Two: Debt or Revenues from a Telecommunications
    Provider.* Section 52.12(a)(1)(ii) of our regulations provides that
    neither the administrator nor any of its affiliates may issue a
    majority of its debt to, nor derive a majority of its revenues from,
    any telecommunications provider.[^49] According to Telcordia, DSMI
    does not carry debt "as a separate entity,"[^50] and adds that its
    own debt is not derived from any telecommunications service
    provider, but rather, from public financial institutions.[^51]
    Telcordia also claims that neither it nor SAIC derives a majority of
    its revenues from any one telecommunications service provider.[^52]
    Nevertheless, we find that DSMI's income is primarily received from
    its relationship with the SMT, which is comprised entirely of BOCs.
    Although the BOCs are separate entities, we find that their
    interests are sufficiently aligned that they may be deemed
    collectively to be a telecommunications provider. Thus, the
    requirements of Criterion Two are not satisfied.

23. *Criterion Three: Undue Influence.* We now consider section
    52.12(a)(1)(iii) of our rules, which provides that, nothwithstanding
    the first two neutrality criteria, we may exercise our discretion to
    determine whether the administrator will be subject to undue
    influence by parties with a vested interest in the outcome of
    numbering administration and activities. We must determine,
    therefore, whether we believe DSMI will be subject to undue
    influence by any party with an interest in the outcome of numbering
    administration and activities.

24. DSMI is under contract to perform certain administrative duties
    relating to toll free number administration, including day-to-day
    management and oversight of SMS/800 services.[^53] As discussed
    below, the terms of the SMS/800 Tariff are uniquely structured to
    ensure that the administration of toll free numbers is competitively
    neutral. Because DSMI may not exercise its discretion to administer
    toll free number services in a manner inconsistent with the tariff,
    we find that, under these specific circumstances, DSMI is not
    subject to undue influence by the BOCs or by any other entity with
    an interest in the administration of toll free numbers.

25. We are persuaded that DSMI acts as an impartial administrator
    because we agree with DSMI's assessment that the unique arrangement
    established in the SMS/800 Tariff and the Commission's rules ensure
    that it performs its activities as overseer of the day-to-day
    management of the SMS/800 system without discrimination. Under the
    tariff, the administration of toll free numbers is impartial because
    DSMI does not determine which RespOrgs may access or manage which
    toll free numbers. Rather, RespOrgs retrieve toll free numbers
    themselves, via computer interface.[^54] As DSMI observes, RespOrgs
    have direct electronic access to the SMS/800 database, and thus can
    assign to their customers any available toll-free numbers. [^55]
    Under the tariff, DSMI exercises no discretion or judgment in
    permitting or prohibiting particular RespOrgs from obtaining
    numbers.[^56] Nor do the BOCs direct the roll-out of new toll free
    access codes. The industry as a whole, through the Alliance for
    Telecommunications Industry Solutions (ATIS), determines the
    implementation of new toll free codes.[^57] Because of this
    particular structure, DSMI is insulated from undue influence by the
    BOCs or any other entity with an interest in the outcome of
    numbering administration and activities. We find, rather, that the
    terms in the SMS/800 Tariff require the impartial administration of
    toll free numbers. Thus, the terms of the SMS/800 tariff also
    preclude the BOCs from exercising undue influence over DSMI which,
    in any event, exercises no discretion in the administration of toll
    free numbers.[^58] Consequently, we disagree with Beehive's argument
    that DSMI cannot be deemed impartial when it acts as the agent of
    the BOCs under the SMS/800 Tariff.[^59] We therefore conclude that,
    notwithstanding DSMI's failure to meet the requirements of Criterion
    Two, because it receives a majority of its revenues from the BOCs,
    DSMI is an impartial administrator under section 251(e) of the Act
    and consequently may continue to serve as the SMS/800 system
    administrator.

### Toll Free Administrative System Structure

26. Although we have concluded that DSMI is impartial under section
    251(e) and thus qualified to continue to serve as the SMS/800 system
    administrator, we question whether the current SMS/800 system is the
    best available means of administering toll free numbers. The SMS/800
    system was tariffed by the BOCs at the Commission's direction
    in 1993. At that time, the Commission determined that the BOCs'
    provision of the service on a tariffed basis was preferable to the
    BOCs' request to offer access to the centralized database through
    private agreements. The Commission believed that the tariff would
    contain more enforceable safeguards and be subject to more stringent
    Commission oversight, thus reducing the likelihood of undue
    influence by the BOCs. We observe, however, that much has changed
    since then. The door to competition in the local exchange
    marketplace has been opened by the Telecommunications Act of 1996.
    This has fundamentally altered the structure of the local
    telecommunications market; for example, the BOCs now represent a
    segment of the telecommunications industry in which at least some
    competition exists, unlike seven years ago when the tariffed system
    was established. The significant growth in competition has also
    brought about a marked increase in the demand for more toll free and
    other numbers, as new competitors seek to serve their customers and
    new services are offered. Thus, continued ownership and control by
    the BOCs over the toll free number administration system may no
    longer be warranted for competitive reasons.

27. We are also concerned about whether, from a practical standpoint,
    ownership and control of the centralized database by any
    telecommunications service provider is an appropriate structure for
    toll free numbering administration because of service quality issues
    that have arisen and apparently remain unresolved. In a recent
    letter to the Commission, ATIS observed that RespOrgs have
    experienced increasing difficulties with the SMS/800 system since
    1997, noting that system congestion has increased as Numbering Plan
    Area splits have increased.[^60] Additionally, some commenters in
    this proceeding claim to have experienced poor service under the
    SMS/800 Tariff.[^61] These commenters, however, do not attribute the
    service quality problems to DSMI, but to the BOCs, who own the
    database and offer the service through the SMS/800 Tariff.[^62] We
    decline to address these specific allegations in the context of this
    proceeding; such alleged instances of non-compliance with the terms
    of the SMS Tariff are best addressed through the complaint
    process.[^63] Nevertheless, we recognize, generally, the need to
    consider whether these and other issues can be addressed and
    resolved through restructuring of the current administration system.

28. We look to our Federal Advisory Committee on numbering issues, the
    NANC, for a recommendation on how best to administer toll free
    numbers. We ask the NANC to address whether a system of
    administration similar to that used to administer the NANP or a
    different system should be established. Among the alternatives NANC
    should consider is whether the ownership and operation of the
    centralized toll free database system should be transferred to a
    non-government and/or non-carrier entity, and whether SMS/800
    service should continue to be provided under tariff. Additionally,
    we seek recommendations from the NANC to facilitate the selection of
    the administrator through a competitive bidding process similar to
    the process used to select the North American Numbering Plan
    Administrator.[^64] Specifically, we ask the NANC to develop the
    necessary technical requirements for toll free number
    administration. We direct the NANC to submit its recommendations to
    the Commission within 180 days of the effective date of this Order.
    Upon receipt of the NANC's recommendations and public comment, we
    will move expeditiously to determine whether it is in the public
    interest to restructure the ownership and operation of the current
    system of toll free number administration, and, if so, whether a new
    toll free number administrator should be selected.[^65]

## Petitions for Declaratory Ruling

29. We now address the seven issues referred to us and presented by
    Beehive and DSMI in their petitions for declaratory ruling, many of
    which are resolved by our conclusions above.

30. [Issue 1: Whether the SMS/800 system may be provided under tariff,
    as it is currently, or whether it must be provided exclusively under
    intercarrier agreements pursuant to sections 251 and
    252.]{.underline} The Commission previously determined that access
    to the SMS/800 database is a common carrier service that must be
    offered under tariff.[^66] The Commission affirmed this finding and
    has upheld the validity of the SMS/800 Tariff in subsequent
    orders.[^67]

31. The Commission has also determined that access to the SMS/800
    database and the SMS/800 system must be unbundled.[^68] In the
    *Local Competition First Report and Order*, the Commission stated
    that Call-Related Databases must be unbundled. The Commission
    specifically identified access to the SMS/800 database as a
    UNE.[^69] In the *Local Competition Third Report and Order*, in
    which we re-evaluated which network elements must be unbundled in
    accordance with the remand from the U.S. Supreme Court, we again
    required that incumbent LECs unbundle access to the centralized
    SMS/800 database.[^70]

32. Section 251(c)(3) requires ILECs to "provide, to any requesting
    telecommunications carrier for the provision of a telecommunications
    service, nondiscriminatory access to network elements on an
    unbundled basis. . . ."[^71] Beehive contends that under section 251
    (c)(3), common carriers such as Beehive, Sprint, and MCI have the
    right to purchase access to the SMS/800 database as a UNE. DSMI and
    the BOCs argue that section 251(c)(3) applies only to the BOCs'
    separately owned networks and, because the BOCs jointly own the
    SMS/800 database, it is not a UNE.[^72] Beehive also contends that
    the 1996 Act precludes the Commission from continuing to require
    that access to the SMS/800 database be tariffed under section 203 of
    the Act because we determined that the SMS/800 database system is
    also accessible as a UNE under section 251(c).[^73]

33. Although we have found that access to the SMS/800 database and the
    SMS/800 system are available as UNEs pursuant to section 251(c)(3)
    of the Act, we expressly reject Beehive's argument that this
    invalidates the existing interstate tariff. The Commission
    recognized in the *Local Competition Third Report and Order* that
    ILECs may offer a tariffed retail service that is functionally
    equivalent to a specific UNE. The Commission found that, in
    determining whether or not an ILEC should provide access to a UNE,
    it would assign little weight to the availability of the tariff as
    an alternative because Congress gave competitive LECs a distinct
    opportunity, through section 251(c)(3), to use UNEs regardless of
    the availability of tariffed retail or resold services.[^74]

34. The findings in the *Local Competition Third Report and Order* can
    in no way be read to invalidate a tariffed offering simply because
    that offering could be equivalent to a specific UNE. An ILEC has a
    duty under section 251(c)(3) to provide access to UNEs to a
    requesting telecommunications carrier for the provision of a
    telecommunications service while a tariffed offering available under
    section 203(c) of the Act is available to any person.[^75] Beehive's
    request to invalidate a tariffed offering simply because it is
    available as a UNE ignores a fundamental difference between sections
    251(c)(3) and 203(c) of the Act, and would effectively deny access
    to the offering to entities that are not eligible to obtain UNEs
    under section 251(c)(3).

35. [Issue 2: Whether DSMI is an impartial administrator of the SMS
    system, under section 251(e).]{.underline} We have concluded in this
    Order that DSMI is impartial and may continue to serve as a toll
    free administrator.[^76]

36. [Issue 3: Whether the SMS/800 system complies with section
    251(e)(2), which requires the costs of number administration
    arrangements and number portability to be borne by all carriers on a
    competitively neutral basis.]{.underline} RespOrgs, the users of the
    SMS/800 system, bear the costs associated with SMS/800 system
    administration in proportion to the quantity of toll free numbers
    they reserve or manage. Because the same rates are assessed against
    all RespOrgs under the SMS/800 Tariff, we find that the costs of
    toll free number administration are borne on a competitively neutral
    basis in accordance with the requirements of section 251(e)(2).[^77]

37. Beehive contends that the costs of administering toll free numbers
    cannot be recovered through SMS Tariff charges because the RespOrgs
    bearing the costs are "far from being all the telecommunications
    carriers."[^78] We disagree. The SMS Tariff charges relate only to
    the direct administrative costs of operating the SMS/800 database
    system. Other aspects of toll free numbering administration, which
    include assignment and activation of toll free area codes (*i.e.*,
    800, 888, 877), are performed by the NANPA,[^79] and the costs for
    these functions are borne by all carriers under the number
    administration cost recovery mechanism.[^80] Further, we believe
    that SMS/800 system administration costs are borne in a
    competitively neutral manner because, under the tariff, costs are
    borne only by the parties causing the costs. To require all
    carriers, even those that do not use the SMS/800 system, to bear
    these administrative costs, some of which can be attributed to
    RespOrgs that are not common carriers, contravenes the long-standing
    principle that costs should be borne by the cost-causer.[^81] As
    DSMI observes, recovering costs directly from all carriers,
    including those that do not use the SMS/800 system, would give
    carriers that are RespOrgs a competitive advantage over other
    carriers.[^82] We do not believe that Congress, in enacting section
    251(e)(2), intended to require carriers that do not use the SMS/800
    system to bear the costs of administering the system. Thus, we find
    that recovering the administrative costs of operating the SMS/800
    system only from RespOrgs in proportion to the toll free numbering
    resources reserved and managed by them is competitively neutral and
    appropriate.

38. [Issue 4: Whether DSMI may legally discontinue providing SMS/800
    service.]{.underline} We find that DSMI, as the administrator of the
    SMS/800 database, may discontinue providing SMS/800 service in
    accordance with the terms of the SMS/800 Tariff if the RespOrg is
    not in compliance with the requirements in the tariff. Moreover, we
    find that DSMI's discontinuance of service to Beehive was warranted;
    despite ample warning several months prior to termination, Beehive
    did not pay for the services it received under the tariff.

39. [Issue 5: Whether DSMI may administer the SMS/800 system under
    tariff even though it is not a common carrier.]{.underline} Although
    it is not a common carrier, DSMI may administer the SMS/800 system
    under the tariff pursuant to its contract with the BOCs. Common
    carriers are required to file tariffs under the Communications
    Act;[^83] nevertheless, they may also act through other entities in
    providing services under the Act.[^84] As we have stated before,
    "there is nothing in section 203 which colorably suggests that
    Congress intended to prohibit carriers from using agents to enforce
    provisions of their tariffs."[^85] It is not unusual for a common
    carrier that files a tariff to select an agent to perform certain
    functions associated with provision of a tariffed service. The
    National Exchange Carrier Association (NECA), for example, is not a
    common carrier, but it files, bills, and collects charges contained
    in interstate access tariffs on behalf of the issuing common
    carriers.[^86] Similarly, DSMI, although it is not a common carrier,
    acts as the business representative of the SMT, which is comprised
    of the BOCs, and provides day-to-day management and oversight of the
    tariffed services. We find nothing inappropriate about the BOCs'
    selection of an entity that is not a common carrier to perform
    certain tariff-related functions on their behalf.

40. [Issue 6: Whether DSMI gave proper notice before discontinuing
    service to Beehive.]{.underline} Beehive alleges that DSMI violated
    the tariff because DSMI terminated Beehive's service without
    notice.[^87] Section 2.1.8(A) of the tariff requires 30 days'
    written notice prior to terminating a Resp Org's access to the
    SMS/800 database system. DSMI states that it provided written notice
    on three separate occasions, with its last letter dated March 22,
    1994, and Beehive doesn't dispute receipt of these letters.[^88]
    More than 30 days later, on April 26, 1994, Beehive's service was
    suspended.[^89] We therefore find that DSMI's notice to Beehive was
    proper.

41. [Issue 7: Whether Beehive held a constitutionally protected property
    interest in toll free numbers that DSMI violated by discontinuing
    service to Beehive.]{.underline} It is well-established that no
    entity has a proprietary or ownership interest in any numbers,
    including toll free numbers.[^90] Beehive maintains that it was
    deprived of a constitutionally protected property or ownership
    interest when DSMI disconnected its 800-629-XXXX numbers, reasoning
    that the opportunity to make use of numbers has marketing value that
    may not simply be taken away. On the other hand, DSMI contends that
    numbers are a public resource, not owned by individuals.[^91] We
    find that Beehive has no property or ownership interest, nor does
    any RespOrg or subscriber have an ownership interest in a particular
    number. Thus, DSMI violated no constitutionally protected property
    interest by discontinuing service.[^92]

42. Moreover, Beehive is not entitled to return of the specific toll
    free numbers in the 629 prefix that DSMI disconnected. As DSMI and
    its supporters assert, the Commission's rules governing RespOrg
    retrieval of numbers from the SMS/800 database require disconnected
    numbers to be put into the spare pool of numbers, to be available to
    others on a first-come, first-served basis.[^93]

# ORDERING CLAUSES

43. IT IS ORDERED, pursuant to sections 1, 4(i), and 251 of the
    Communications Act of 1934, as amended, 47 U.S.C. §§ 151, 154(i),
    and 251, that this FIFTH REPORT AND ORDER in CC Docket No. 95-155,
    and these ORDERS in NSD File Nos. L-99-87 and L-99-88 are hereby
    ADOPTED.

44. IT IS FURTHER ORDERED that the Motion to Strike and Response to
    Request for Expedited Action filed by Beehive Telephone Company,
    Inc. on March 1, 1999 IS DENIED.

45. IT IS FURTHER ORDERED that the Secretary SHALL SEND a copy of this
    Order to the United States District Court for the District of Utah,
    Central Division.

FEDERAL COMMUNICATIONS COMMISSION

Magalie Roman Salas

Secretary

[^1]: In the Matter of Toll Free Access Codes, CC Docket No. 95-155.

[^2]: *Database Service Management, Inc. v. Beehive Telephone Company,
    Inc.*, Civ. No. 2:96-CV-188J (C.D. Utah Jan. 20, 1999). Following
    referral, the parties before the court presented the issues to this
    Commission in petitions for declaratory ruling filed by Beehive
    Telephone Company Inc. (Beehive) on January 29, 1999, and by
    Database Service Management, Inc. (DSMI) on February 17, 1999.

[^3]: 47 U.S.C. § 251(e)(1).

[^4]: 47 U.S.C. § 251(c)(3).

[^5]: The tariffed service is described as "a national system which is
    used to update locally deployed databases," and is the focal point
    for initial service provisioning and all subsequent changes to the
    toll free subscriber's service. It supports number administration,
    creation and modification of customer records. *See* SMS/800
    Functions Tariff F.C.C. No. 1 at 47.

[^6]: SMS/800 Functions Tariff F.C.C. No. 1.

[^7]: 800 Data Base Access Tariffs and the 800 Service Management System
    Tariff and Provision of 800 Services, *Report and Order*, CC Docket
    Nos. 93-129 and 86-10, 11 FCC Rcd at 15227, 15324 (*SMS Tariff
    Order*).

[^8]: Letter from from Celia Nogales, Ameritech Director - Federal
    Relations to Magalie Roman Salas, Secretary, Federal Communications
    Commission, CC Docket 95-155 (filed August 31, 1999); BOC Comments
    at 1-2, in NSD File Nos. L-99-87 and L-99-88.

[^9]: *See United States v. AT&T*, 552 F. Supp. 131 (D.D.C. 1982),
    *aff'd, Maryland v. United States*, 460 U.S. 1001 (1983). The Court
    ordered AT&T to divest its interest in the Bell Operating Companies
    (BOCs), which provided local exchange service.

[^10]: Provision of Access for 800 Service*, Order,* CC Docket No.
    86-10, 8 FCC Rcd 1423 (1993) (*CompTel Declaratory Ruling*).

[^11]: Telephone numbers are typically designated NPA-NXX-XXXX. The NXX,
    or the "central office code," is the series of three digits
    following the area code. The NXX is also referred to as the
    "exchange."

[^12]: *Id*.

[^13]: *CompTel Declaratory Ruling,* 8 FCC Rcd at 1426-27.

[^14]: Toll Free Access Codes*, Notice of Proposed Rulemaking,* CC
    Docket No. 95-155, 10 FCC Rcd 13692 (1995) (*NPRM*).

[^15]: The Commission delegated to the Common Carrier Bureau authority
    to handle the issues essential to the March 1, 1996 opening of the
    888 code. Toll Free Access Codes, *Order*, CC Docket No. 95-155, 11
    FCC Rcd 3045 (1996). The Bureau then established an interim number
    conservation plan for 800 and 888 numbers, to protect the toll free
    database system from possible overload and shutdown during the
    number reservation process. Toll Free Access Codes, *Report and
    Order*, CC Docket No. 95-155, 11 FCC Rcd 2496 (1996).

[^16]: The Telecommunications Act of 1996 (1996 Act) amended the
    Communications Act of 1934. Pub. L. No. 104-104, 110 Stat. 56
    (1996). The 1996 Act added section 251, 47 U.S.C. § 251.

[^17]: 47 U.S.C. § 251(c)(2).

[^18]: 47 U.S.C. § 251(e), 251(c)(3).

[^19]: *AT&T Corp., et. al. v. Iowa Utilities Board et. al.*, 119 S. Ct.
    721, 734-36 (1999).

[^20]: 47 U.S.C. § 251(e)(1).

[^21]: 47 U.S.C. § 251(e)(2). Section 251(d)(1) directs the Commission
    to take all actions necessary to establish regulations implementing
    section 251 within six months of passage or the 1996 Act, which was
    August 8, 1996. 47 U.S.C. § 251(d). The Commission in the *Second
    Report and Order* determined that the 1996 Act required it to
    commence rather than complete the rulemaking process with respect to
    toll-free numbering before August 8, 1996 and therefore concluded
    that it had complied with this statutory deadline*. Implementation
    of the Local Competition Provisions of the Telecommunications Act of
    1996*, 11 FCC Rcd 19392 (1996)(*Second Report and Order*), *recon.
    denied*, 14 FCC Rcd 16559 (1999), *aff'd*, *Beehive Telephone Co. v.
    FCC* No. 99-1328 (D.C.Cir., decided May 18, 2000) (*Beehive v.
    FCC*). On review, the Court of Appeals found the Commission's
    determination to be reasonable. *Beehive v. FCC*, No. 99-1328.

[^22]: Toll Free Access Codes, *Second Report and Order and Further
    Notice of Proposed Rulemaking*, CC Docket No. 95-155, 12 FCC Rcd
    11162 (1997). The Commission there also adopted rules governing
    RespOrgs' retrieval of toll free numbers from the SMS/800 database,
    such as reservation, activation, and disconnection, and warehousing
    and hoarding of numbers, pursuant to its 1995 proposals in the
    *NPRM*, to ensure fair, equitable, and orderly allocation of toll
    free numbers. (*Second Report and Order*).

[^23]: Toll Free Access Codes, *Third Report and Order*, CC Docket No,
    95-155, 12 FCC Rcd 23040 (1997) (*Third Report and Order*) (which
    was combined with Administration of the North American Numbering
    Plan, *Third Report and Order*, CC Docket No. 92-237, 12 FCC Rcd
    23040 (1997) (*Number Administration Third Report and Order*).

[^24]: The NANC is a federal advisory committee created to advise the
    Commission on numbering administration issues.

[^25]: Also in 1998, the Commission ruled on the roll-out of the 888,
    877, and subsequent codes, in Toll Free Access Codes, *Fourth Report
    and Order and Order and Memorandum Opinion and Order*, CC Docket No.
    95-155, 13 FCC Rcd 9058 (1998).

[^26]: Letter from Alan C. Hasselwander, Chairman, North American
    Numbering Council, to A. Richard Metzger, Jr., Chief, Common Carrier
    Bureau, CC Docket No. 95-155 (filed March 25, 1998) (*NANC Letter*).

[^27]: Common Carrier Bureau Seeks Comment on North American Numbering
    Council Recommendation that Database Services Management, Inc.
    Remain the Toll Free Database Administrator, *Public Notice*, CC
    Docket No. 95-155, NSD File No. L-98-85, DA-98-1112 (rel. June 11,
    1998).

[^28]: Comments were filed July 1, 1998, by Bellcore, MCI
    Telecommunications Corporation, and Sprint Communications Company.
    Replies were filed July 13, 1998, by Bellcore, BellSouth, Beehive,
    MCI, and (jointly) Ameritech, Bell Atlantic, SBC, and US West. An ex
    parte statement dated August 31, 1998, was filed by Ameritech on
    behalf of the BOCs.

[^29]: *See* paras. 15--25.

[^30]: *DSMI v. Beehive*, No. Civ. No. 2:96-CV-188J (C.D. Utah filed
    Mar. 1, 1996).

[^31]: *DSMI v. Beehive*, No. 98-4117 (10th Cir. Nov. 24, 1998).

[^32]: Beehive Petition for Declaratory Ruling, Attachment 2 at 24 --
    25.

[^33]: Section 251(e)(2) requires the costs of number administration
    arrangements and number portability to be borne by all carriers on a
    competitively neutral basis. 47 U.S.C. § 251(e)(2).

[^34]: Beehive Petition for Declaratory Ruling, Attachment 2 at 22. The
    numbers in the "629" prefix correspond to "MAX" or "MAY" on the
    telephone keypad.

[^35]: Petitions For Declaratory Ruling Filed By Beehive Telephone
    Company and Database Services Management, Inc., *Public Notice*, CC
    Docket No. 95-155, NSD File Nos. L-99-87 and L-99-88, DA 99-2400
    (rel. Nov. 2, 1999).

[^36]: Comments were filed on December 6, 1999, by the BOCs jointly
    (Bell Atlantic, BellSouth, SBC, and US West), MCI WorldCom, and
    Sprint. Replies were filed on December 16, 1999, by Beehive DSMI,
    and MCI WorldCom. Also, on March 1, 1999, Beehive filed a motion to
    strike DSMI's petition for declaratory ruling, arguing that DSMI's
    petition constituted a late-filed reply to Beehive's petition. We
    deny the motion, having sought and received comments on both
    petitions in the interests of developing a complete record.

[^37]: 47 U.S.C. §§ 251(e)(1), (2).

[^38]: 47 C.F.R. § 52.12.

[^39]: Request of Lockheed Martin Corporation and Warburg, Pincus & Co.
    for Review of the Transfer of the Lockheed Martin Communications
    Industry Services Business, *Order*, CC Docket No. 92-237, NSD File
    No. 98-151, FCC 99-346 (rel. Nov. 17, 1999) (*Lockheed Order*).

[^40]: *See Third Report and Order*, 12 FCC Rcd at 23089.

[^41]: *See Third Report and Order* and *Lockheed Order*. In both these
    Orders, we applied the criteria set forth in the Commission's
    regulations. *See* 47 C.F.R. § 52.12(a)(l).

[^42]: *Lockheed Order* at para. 24.

[^43]: *Id.*

[^44]: 47 C.F.R. § 52.12(a)(l).

[^45]: *Id.*

[^46]: The sale of Bellcore to SAIC was completed on November 14, 1997.
    Letter from Louise L. M. Tucker, Senior Counsel -- Washington
    (Bellcore) to the Commission (dated November 17, 1997).

[^47]: Bellcore Reply at 4.

[^48]: *NANC Letter* ("Based on \[the sale of Bellcore to SAIC\], it is
    the opinion of the NANC that the DSMI is an impartial and neutral
    administrator.").

[^49]: 47 C.F.R. § 52.12(a)(1)(ii).

[^50]: Bellcore Reply at 5.

[^51]: *Id.*

[^52]: *Id.*

[^53]: *See* para. 3, *supra.*

[^54]: Although AT&T, MCI, and Sprint object that the BOCs have
    implemented an expensive computerized method enabling smaller
    ("dial-up") RespOrgs to retrieve numbers from the SMS/800 database,
    even though those RespOrgs account for less than 10% of toll free
    numbers, that enhancement appears to be pro-competitive and does not
    suggest lack of impartiality. Ex Parte Presentation letter from
    James Spurlock, AT&T, Henry G. Hultquist and Mary DeLuca, MCI
    WorldCom, and Michael B. Fingerhut and Norina T. Moy, Sprint, to
    Magalie Salas, Secretary, Federal Communications Commission, dated
    January 7, 2000, at 11 (AT&T, MCI WorldCom, Sprint January 7, 2000,
    Ex Parte Letter).

[^55]: DSMI Reply Comments at 5-6; BOC Comments at 3-4. The regulations
    at 47 C.F.R. §§ 52.107 provide that available toll free numbers in
    the SMS/800 database are maintained in "spare status" and that a
    RespOrg may retrieve a number first come, first served, by placing
    the number in "reserved status," as long as the RespOrg has an
    identified customer for that number. Numbers in "reserved status"
    must be returned to "spare status" if they are not actually assigned
    to the subscriber within 45 days ("assigned status"). Activated
    numbers ("working status") must be returned to "spare status" after
    they are disconnected ("disconnect status"). Several additional
    procedures govern other situations, such as "unavailable status" for
    numbers in special circumstances and "suspend status" for numbers in
    billing disputes between the RespOrg and customer.

[^56]: *See* 47 C.F.R. section 52.13. By contrast, the administration of
    non-toll free numbers is very different from the administration of
    toll free numbers. Under the Commission's rules, the North American
    Numbering Plan Administrator (NANPA) exercises discretion in
    deciding which carriers are assigned which numbers, area codes, and
    special access codes (such as 500 or 900). The NANPA processes
    individual applications from carriers that request numbers, and it
    decides, subject to constraints set by the Commission, whether to
    grant or deny the applications.

[^57]: *See, e.g.,* letter from Ron Havens, OBF Moderator, ATIS, to L.
    Charles Keller, Chief, Network Services Division, CC Docket No.
    95-155 (filed February 4, 2000)(addressing 866 and 855 codes).

[^58]: For DSMI to do otherwise would be a violation of the tariff.

[^59]: Beehive Reply Comments at 2.

[^60]: Letter from Ronald D. Havens, OBF Moderator, to L. Charles
    Keller, Chief, Network Services Division, Common Carrier Bureau, CC
    Docket No. 95-155 (filed Feb. 15, 2000).

[^61]: *See* *January 7, 2000, Ex Parte Letter* (also complaining about
    high tariff rates). *See also* MCI Comments at 3 - 4 and Sprint
    Comments at 2 - 3, both filed July 1, 1998, and WorldCom Reply at
    3 - 4, filed July 13, 1999.

[^62]: *Id.*

[^63]: To the extent that parties can demonstrate that the BOCs or their
    designees are not administering toll free numbers pursuant to the
    terms of their own tariff, they may pursue an enforcement action to
    ensure that the terms of the tariff are met. See sections 1.701 --
    1.736 of the Commission's rules, 47 C.F.R. §§ 1.701 -- 1.736.

[^64]: *See Third Report and Order.*

[^65]: In the *Second Report and Order*, the Commission sought comment
    on whether access to the database should still be provided pursuant
    to tariff if there is ultimately a new administrator of the database
    and if so, what party or entity should file the tariff. *Second
    Report and Order*, 12 FCC Rcd at 11225. Public comment on the NANC's
    recommendations will also serve to refresh the record on this
    related matter.

[^66]: In the *CompTel Declaratory Ruling*, the Commission emphasized
    that offering the SMS/800 system under tariff was essential in order
    to have a fairly administered centralized database. 8 FCC Rcd at
    1426. The Commission later reaffirmed its ruling that providing
    access to the SMS/800 database is a common carriage service. Beehive
    Telephone, Inc. and Beehive Telephone Nevada, Inc., Complainants v.
    The Bell Operating Companies, *Memorandum Opinion and Order*, File
    No. E-94-57, 12 FCC Rcd 17930 (1997)(*1997 Beehive Complaint
    Order*).

[^67]: Beehive Telephone, Inc. and Beehive Telephone Nevada, Inc.,
    Complainants v. The Bell Operating Companies, *Memorandum Opinion
    and Order*, File No. E-94-57, 10 FCC Rcd 17930 (1997)(*1997 Beehive
    Complaint Order*); 800 Data Base Access Tariffs and the 800 Service
    Management System Tariff, CC Docket No. 93-129 and Provision of 800
    Services, CC Docket 86-10, *Report and Order*, 11 FCC Rcd 15227,
    15323 -- 15350 (1996).

[^68]: *Local Competition First Report and Order,* 11 FCC Rcd at 15741;
    *Third Report and Order,* 12 FCC Rcd at para. 403.

[^69]: *Local Competition First Report and Order,* 11 FCC Rcd at 15741
    ("Thus, for example, we find that it is technically feasible for
    incumbent LECs to provide access to the . . . Toll Free Calling
    Database . . . ). The Commission also found that service management
    systems must be unbundled. *Id*. at 15746-50.

[^70]: *Third Report and Order,* 12 FCC Rcd at paras. 402-03.

[^71]: 47 U.S.C. § 251(c).

[^72]: BOC Comments at 5, DSMI Reply at 4.

[^73]: Beehive Reply at 6.

[^74]: *See Local Competition Third Report and Order, 15 FCC Rcd at
    3732.*

[^75]: 47 U.S.C. §§ 251(c)(3), 203(c).

[^76]: *See* paras. 16 -- 25, *supra*.

[^77]: 47 U.S.C. § 251(e)(2) (providing that numbering costs "shall be
    borne by all telecommunications carriers on a competitively neutral
    basis as determined by the Commission").

[^78]: Beehive Reply at 2 -- 3.

[^79]: *See, e.g.*, INC Guidelines for NPA Allocation Plan and
    Assignment, INC 96-0308-011 (Reissued Feb. 28, 2000) (stating that
    the NANPA, as the NPA Code Administrator, receives requests for and
    assigns all NPAs, including Easily Recognizable Codes (ERCs) such as
    those reserved for toll free service).

[^80]: *See* 47 C.F.R. § 52.17. Under this mechanism, all
    telecommunications carriers contribute to the costs of numbering
    administration based on their gross revenues from the provision of
    telecommunications service.

[^81]: *See, e.g.,* Investigation of Interstate Access Tariff
    Non-Recurring Charges, Phase I, Part 3, *Memorandum Opinion and
    Order*, CC Docket No. 85-166, 2 FCC Rcd 3498, 3501 - 02 (1987).

[^82]: DSMI Reply at 8. As users of the system, carriers that are
    RespOrgs would receive a service in exchange for their contribution,
    whereas carriers that are non-users would receive nothing.

[^83]: 47 U.S.C. §§ 203("Schedule of Charges").

[^84]: 47 U.S.C. § 217 ("Liability of Carrier for Acts and Omissions of
    Agents"). Section 217 states that, in construing and enforcing the
    provisions of the Act, " . . . the act, omission, or failure of any
    office, agent or other person . . . shall be deemed to be the act,
    omission or failure of such carrier or user as well as that of the
    person." It does not require that the agent be a common carrier.

[^85]: In the Matter of Communique Telecommunications, Inc. d/b/a/
    Logicall Application for Review of the Declaratory Ruling and Order
    Issued by the Common Carrier Bureau, *Memorandum Opinion and Order*,
    FCC 99-80, rel. Aug. 9, 1999 at paras. 19 and 24.

[^86]: NECA Tariff No. 4.

[^87]: Beehive Reply at 16.

[^88]: DSMI Reply at 11 (referring to letters dated November 29, 1993,
    February 14, 1994, and March 22, 1994).

[^89]: DSMI Addendum to Petition of Database Service Management, Inc.
    for Expedited Declaratory Ruling at 2.

[^90]: The Commission stated in the *Second Report and Order* that
    "telephone companies do not 'own' codes or numbers, but rather
    administer their distribution for the efficient operation of the
    public switched telephone network" 12 FCC Rcd at 11185-86 (citing
    Need to Promote Competition and Efficient Use of Spectrum for Radio
    Common Carrier Services, *Declaratory Ruling*, 2 FCC Rcd 2910, 2912
    (1987)). The SMS/800 Tariff comports with this policy, providing,
    "No individual or entity (*e.g.,* subscriber/assignee, service
    provider, etc.) shall acquire any interest in, or proprietary right
    to, any 800 telephone number assigned to the 800 subscriber."
    Section 2.1.7, Provision and Ownership of 800 Telephone Numbers.

[^91]: Beehive Reply at 16-17.

[^92]: We agree with DSMI, the BOCs, and Sprint that DSMI did not engage
    in "state action" that could be deemed unconstitutional, because
    Beehive does not have a property interest in the disconnected
    numbers and DSMI is a private corporation. DSMI Reply at 12-13;
    Sprint Comments at 3; BOC Comments at 6.

[^93]: Commission rules governing retrieval of toll free numbers are
    found at 47 C.F.R. §§ 52.101-52.109. These rules, *inter alia*,
    prohibit RespOrgs from warehousing toll free numbers. *See* 47
    C.F.R. §§ 52.105, 52.109. Although Beehive seeks the return of the
    particular numbers it was previously assigned, the rules governing
    toll free number administration require that unused numbers go into
    a common pool for reservation by any RespOrg on a first-come,
    first-served basis. *See* 47 C.F.R. §§ 52.101 *et seq.*