Before the

Federal Communications Commission

Washington, D.C. 20554

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| In the Matter of                 | * | CC Docket No. 00-257         |
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| 2000 Biennial Review-Review of   | ) | CC Docket No. 94-129         |
| Policies and Rules Concerning    | * |                              |
| Unauthorized Changes of          | * |                              |
| Consumers' Long Distance         |   |                              |
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| Implementation of the Subscriber | ) |                              |
| Carrier Selection Changes        | * |                              |
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| Telecommunications Act of 1996   |   |                              |
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| Verizon California, Inc.         | * |                              |
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ORDER

**Adopted: June 22, 2007 Released: June 22, 2007**

By the Chief, Consumer Policy Division, Consumer & Governmental Affairs
Bureau:

# introduction

1.  In this Order, we grant Verizon California, Inc. (Verizon) a limited
    waiver of the 30-day advance notification requirements contained in
    47 C.F.R. § 64.1120(e). In 2001, the Commission instituted
    streamlined procedures for compliance with the authorization and
    verification requirements of our rules and of section 258 of the
    Communications Act of 1934, as amended by the Telecommunications Act
    of 1996, in situations involving the carrier-to-carrier sale or
    transfer of subscriber bases.[^1] We find that it is in the public
    interest to grant Verizon a limited waiver of these rules, to the
    extent necessary to enable Verizon to become the presubscribed
    provider of local service to customers of a competitive local
    exchange carrier that is ceasing to provide service.

    **II. BACKGROUND**

2.  In 1998, the Commission adopted rules to implement section 258 of
    the 1996 Act, which expanded the Commission's existing authority to
    deter and punish "slamming," the submission or execution of an
    unauthorized change in a subscriber\'s selection of a provider of
    telecommunications service.[^2] Pursuant to section 258 and the
    Commission's rules, carriers are barred from changing a customer\'s
    preferred carrier without first complying with the Commission\'s
    procedures.[^3]

3.  According to the streamlined procedures adopted by the Commission,
    carriers need not obtain individual subscriber authorization and
    verification for carrier changes associated with the
    carrier-to-carrier sale or transfer of a subscriber base, provided
    that, not later than 30 days before the planned carrier change, the
    acquiring carrier notifies the Commission, in writing, of its
    intention to acquire the subscriber base and certifies that it will
    comply with the procedures set forth in section 64.1120(e) of the
    Commission's rules, including providing 30-day advance written
    notice to all affected subscribers.[^4] These rules are designed to
    ensure that affected subscribers have adequate information about the
    carrier change in advance, that they are not financially harmed by
    the change, and that they will experience a seamless transition of
    service from their original carrier to the acquiring carrier.[^5]
    This self-certification process also provides the Commission with
    information it needs to fulfill its consumer protection
    obligations.[^6]

4.  On June 5, 2007, Verizon filed with the Commission a Petition for
    Waiver asking the Commission to waive the 30-day advance notice
    requirements of sections 64.1120(e)(1) and (e)(3) of the rules to
    permit Verizon to give notice to certain Vycera Communications, Inc.
    (Vycera) customers and to the Commission less than 30 days prior to
    the transfer of the customers from Vycera to Verizon.[^7]

# discussion

5.  Generally the Commission\'s rules may be waived for good cause
    shown.[^8] As noted by the Court of Appeals for the D.C. Circuit,
    however, agency rules are presumed valid.[^9] Waiver of the
    Commission\'s rules is therefore appropriate only if special
    circumstances warrant a deviation from the general rule, and such a
    deviation will serve the public interest.[^10] The Commission may
    exercise its discretion to waive a rule where the particular facts
    make strict compliance inconsistent with the public interest.[^11]
    In addition, the Commission may take into account considerations of
    hardship, equity, or more effective implementation of overall policy
    on an individual basis.[^12] The Commission specified in the
    *Streamlining Order* that instances in which it is impossible to
    comply precisely with the streamlined procedures will be resolved on
    a case-by-case basis.[^13]

6.  We find that Verizon has demonstrated that good cause exists to
    justify a limited waiver of the Commission\'s requirements to the
    extent necessary to enable Verizon to provide notice to the
    Commission and the affected Vycera customers less than 30 days prior
    to the transfer of the customers to Verizon. According to Verizon,
    Vycera indicated that it is exiting the market and intends to file
    for bankruptcy protection, potentially leaving Vycera's customers
    without service.[^14] The Commission subsequently learned that, in
    fact, Vycera filed for Chapter 7 Bankruptcy protection.[^15] Verizon
    also states that the California Public Utilities Commission (CaPUC)
    staff has asked Verizon to become the carrier for approximately 2500
    of Vycera's customers in California,[^16] and that nearly all of the
    affected customers are Lifeline customers.[^17] Verizon states that
    it has not yet sent advance notice to the affected customers as
    required by section 64.1120(e)(3) of our rules, but that it will
    contact the affected customers as soon as possible.[^18]

7.  Under the Commission's rules, no later than 30 days prior to the
    transfer, an acquiring carrier must self-certify its compliance with
    the required procedures to the Commission [and]{.underline} must
    give the affected subscribers notice of, and certain information
    about, the transfer.[^19] Given the special circumstances Verizon
    has described, however, compliance with the 30-day advance notice
    requirement could potentially result in the loss of local service
    for Vycera customers during the 30-day period. Moreover, Verizon
    states that CaPUC staff has asked Verizon to begin transferring
    Vycera's customers to Verizon as soon as possible.[^20] As noted
    above, the streamlined procedures were designed to permit affected
    subscribers to experience a "seamless transition of service from the
    original carrier to the acquiring carrier."[^21] We find that, in
    the special circumstances described by Verizon, waiver of the 30-day
    advance notice requirement would more effectively achieve this goal
    and would therefore serve the public interest. We find that the
    affected subscribers are unlikely to suffer harm from receiving less
    than 30 days' notice of the transfer, and that any such harms would
    be outweighed by the benefits of a seamless transfer of service and
    the benefits to Lifeline customers who otherwise might be without
    vital communications services, including emergency 911 services.

8.  For the foregoing reasons, we grant Verizon a waiver of the 30-day
    advance notification requirements of 47 C.F.R. §§ 64.1120(e)(1) and
    (e)(3) for the limited purposes described above. The grant of this
    waiver is conditioned upon Verizon providing customer notification
    and certification to the Commission that complies with all
    requirements of section 64.1120(e), except that the 30-day
    timeframes for doing so are waived herein.

# Ordering Clauses

9.  Accordingly, pursuant to authority contained in Sections 1, 4, and
    258 of the Communications Act of 1934, as amended, 47 U.S.C. §§ 151,
    154, 258, and the authority delegated under sections 0.141, 0.361,
    and 1.3 of the Commission\'s rules, 47 C.F.R. §§ 0.141, 0.361, 1.3,
    the waiver request filed by Verizon California, Inc., on June 5,
    2007, IS GRANTED to the extent indicated herein.

10. IT IS FURTHER ORDERED that this Order is effective upon release.

    FEDERAL COMMUNICATIONS COMMISSION

Erica H. McMahon, Chief

Consumer Policy Division

Consumer & Governmental Affairs Bureau

[^1]: *See 2000 Biennial Review-Review of Policies and Rules Concerning
    Unauthorized Changes of Consumers' Long Distance Carriers;
    Implementation of the Subscriber Carrier Selection Changes
    Provisions of the Telecommunications Act of 1996*, First Report and
    Order in CC Docket No. 00-257 and Fourth Report and Order in CC
    Docket No. 94-129 (*Streamlining Order*), 16 FCC Rcd 11218 (2001),
    adopting 47 C.F.R. § 64.1120(e). *See also* 47 U.S.C. § 258(a);
    Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56
    (1996).

[^2]: 47 U.S.C. § 258(a); Telecommunications Act of 1996, Pub. L. No.
    104-104, 110 Stat. 56 (1996); *Implementation of the Subscriber
    Carrier Selection Changes Provisions of the Telecommunications Act
    of 1996; Policies and Rules Concerning Unauthorized Changes of
    Consumers' Long Distance Carriers*, CC Docket No. 94-129, Second
    Report and Order and Further Notice of Proposed Rule Making, 14 FCC
    Rcd 1508 (1998) (*Section 258 Order), stayed in part, MCI WorldCom
    v. FCC*, No. 99-1125 (D.C. Cir. May 18, 1999); First Order on
    Reconsideration, 15 FCC Rcd 8158 (2000); *stay lifted, MCI WorldCom
    v. FCC*, No. 99-1125 (D.C. Cir. June 27, 2000); Third Report and
    Order and Second Order on Reconsideration, 15 FCC Rcd 15996 (2000),
    Errata, DA No. 00-2163 (rel. Sept. 25, 2000), Erratum, DA No.
    00-2192 (rel. Oct. 4, 2000), Order, FCC 01-67 (rel. Feb. 22, 2001);
    Third Order on Reconsideration and Second Further Notice of Proposed
    Rule Making, 18 FCC Rcd 5099 (2003); Order, FCC 03-116, (rel. May
    23, 2003). Prior to the adoption of Section 258, the Commission had
    taken various steps to address the slamming problem. *See*, *e.g.*,
    *Policies and Rules Concerning Unauthorized Changes of Consumers\'
    Long Distance Carriers*, CC Docket No. 94-129, Report and Order, 10
    FCC Rcd 9560 (1995), *stayed in part*, 11 FCC Rcd 856 (1995);
    *Policies and Rules Concerning Changing Long Distance Carrier*s, CC
    Docket No. 91-64, 7 FCC Rcd 1038 (1992), *reconsideration denied*, 8
    FCC Rcd 3215 (1993); Investigation of Access and Divestiture Related
    Tariffs, CC Docket No. 83-1145, Phase I, 101 F.C.C.2d 911, 101
    F.C.C.2d 935, *reconsideration* *denied*, 102 F.C.C.2d 503 (1985).

[^3]: *Id*.

[^4]: 47 C.F.R. § 64.1120(e).

[^5]: *See Streamlining Order* at para. 10, 16 FCC Rcd at 11222.

[^6]: *Id*.

[^7]: Petition for Waiver filed with the Commission by Verizon in CC
    Docket Nos. 94-129 and 00-257 on June 5, 2007 (*Petition*).

[^8]: 47 C.F.R. § 1.3.

[^9]: *WAIT Radio v. FCC*, 418 F.2d 1153, 1157 (D.C. Cir. 1969), *cert.
    denied*, 409 U.S. 1027 (1972).

[^10]: *WAIT Radio*, 418 F.2d at 1159; *Northeast Cellular*, 897 F.2d at
    1166.

[^11]: *Northeast Cellular Telephone Co. v. FCC*, 897 F.2d 1164, 1166
    (D.C. Cir. 1990).

[^12]: *WAIT Radio*, 418 F.2d at 1157.

[^13]: *Streamlining Order* at para. 20, 16 FCC Rcd at 11226.

[^14]: *See* *Petition* at 2.

[^15]: *See* Voluntary Petition for Relief, Case Number: 07-03121-LA7,
    Bankr. S.D. Cal., filed June 15, 2007.

[^16]: *See* *Petition* at 2. *See also* e-mail from Richard T. Ellis,
    Director - Federal Regulatory Advocacy, Verizon, to David Marks,
    Attorney Advisor, Consumer & Governmental Affairs Bureau, dated June
    6, 2007.

[^17]: *See id* at 1. Lifeline service is a retail local service
    offering that is available only to qualifying low-income consumers;
    these consumers pay reduced charges as a result of application of
    the Lifeline support amount described in 47 C.F.R. § 54.403.
    Lifeline services and functionalities are enumerated in § 54.101
    (a)(1) through (a)(9). *See* 47 C.F.R. § 54.401.

[^18]: *See id*.

[^19]: 47 C.F.R. §§ 64.1120(e)(1) &(e)(3).

[^20]: *See* *Petition* at 2.

[^21]: *Streamlining Order* at para. 10, 16 FCC Rcd at 11222.