**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | CC Docket No. 94-129         |
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| Implementation of the Subscriber | ) |                              |
| Carrier                          | * |                              |
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| Selection Changes Provisions of  |   |                              |
| the                              | * |                              |
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| Telecommunications Act of 1996   | ) |                              |
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| Qwest Corporation, All West      | * |                              |
| Communications, Inc., All West   |   |                              |
| World Connect, Carbon/Emery      | * |                              |
| Telcom, Inc., Central Telcom     | * |                              |
| Services, Central Utah           | ) |                              |
| Telephone, Inc., Emery Telcom,   | * |                              |
| Hanksville Telcom, Inc., Manti   | * |                              |
| Long Distance, Manti Telephone   |   |                              |
| Company, Skyline Telecom, UBET   | * |                              |
| Telecom, Inc., and Uintah Basin  | * |                              |
| Long Distance                    | ) |                              |
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| Joint Petition for Waiver        | * |                              |
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ORDER

**Adopted: December 21, 2000 Released: December 22, 2000**

By the Chief, Accounting Policy Division, Common Carrier Bureau:

**I. INTRODUCTION AND BACKGROUND**

1.  In its *Carrier Change Orders*,[^1] the Commission adopted rules
    applicable to carriers changing a consumer\'s preferred carrier.
    [^2] In this Order, we grant Qwest Corporation (Qwest) and All West
    Communications, Inc., All West World Connect, Carbon/Emery Telcom,
    Inc., Central Telcom Services, Central Utah Telephone, Inc., Emery
    Telcom, Hanksville Telcom, Inc., Manti Long Distance, Manti
    Telephone Company, Skyline Telecom, UBET Telecom, Inc., and Uintah
    Basin Long Distance (Acquiring Companies) a limited waiver of the
    authorization and verification requirements of the Commission\'s
    rules and *Carrier Change Orders*.[^3] We grant this limited waiver
    to the extent necessary to enable the Acquiring Companies to become
    the preferred carriers of certain consumers currently presubscribed
    to Qwest in twelve Utah exchanges, without first obtaining the
    consumers' authorization and verification.

2.  Section 258 of the Communications Act of 1934, as amended by the
    Telecommunications Act of 1996, makes it unlawful for any
    telecommunications carrier to \"submit or execute a change in a
    subscriber\'s selection of a provider of telephone exchange service
    or telephone toll service except in accordance with such procedures
    as the Commission shall prescribe.\"[^4] The goal of section 258 is
    to eliminate the practice of \"slamming,\" the unauthorized change
    of a subscriber\'s preferred carrier. Pursuant to section 258,
    carriers are absolutely barred from changing a customer\'s preferred
    local or long distance carrier without first complying with the
    Commission\'s verification procedures.[^5] In the *Section 258
    Order*, the Commission revised its procedures to ensure that
    carriers obtain the requisite authority prior to changing a
    customer\'s preferred carrier. The Commission requires that carriers
    follow one of the Commission\'s prescribed verification procedures
    before submitting carrier changes on behalf of consumers.[^6]

3.  Qwest and the Acquiring Carriers seek a waiver of our verification
    rules to allow the Acquiring Carriers to be designated the preferred
    local carriers for certain customers of Qwest without first
    obtaining each customer's authorization and verification. Because we
    conclude that, under the circumstances presented, it is in the
    public interest to do so, we grant Qwest and the Acquiring Carriers
    a waiver, subject to the conditions represented in their filings.

**II. DISCUSSION**

4.  Generally, the Commission's rules may be waived for good cause
    shown.[^7] As noted by the Court of Appeals for the D.C. Circuit,
    however, agency rules are presumed valid.[^8] The Commission may
    exercise its discretion to waive a rule where the particular facts
    make strict compliance inconsistent with the public interest.[^9] In
    addition, the Commission may take into account considerations of
    hardship, equity, or more effective implementation of overall policy
    on an individual basis.[^10] 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.[^11]

5.  We find that Qwest and the Acquiring Carriers have demonstrated that
    good cause exists to justify a limited waiver of the Commission's
    authorization and verification requirements to the extent necessary
    to enable the Acquiring Carriers to transfer to their own customer
    bases the affected Qwest customers. In the Waiver Petition, Qwest
    and the Acquiring Carriers state that Qwest seeks to delete twelve
    exchanges containing approximately 35,600 access lines from its Utah
    study area and transfer those lines to the twelve Acquiring
    Carriers, one exchange per carrier. The Acquiring Carriers will
    acquire substantially all of Qwest's assets used to provide local
    telecommunications services to those lines, including the affected
    customer base, and will provide local services on a presubscription
    basis to Qwest's former customers.[^12] Qwest and the Acquiring
    Carriers further note that some of the Qwest customers may have to
    change long distance carriers (intrastate or interstate) if they
    currently use a carrier not present on the Acquiring Carriers'
    switches. An Acquiring Carrier representative will contact those
    customers to coordinate a carrier change at no charge.[^13]

6.  We conclude that special circumstances exist to justify a waiver.
    Without this waiver, some former Qwest customers might temporarily
    lose their presubscribed local service when Qwest ceases to provide
    such service in the affected exchanges. We conclude that a waiver of
    the Commission's carrier change rules and orders is necessary to
    provide a seamless transition with no disruption of local service to
    the transferred customers.

7.  We find that Qwest and the Acquiring Carriers have demonstrated that
    a limited waiver of the authorization and verification rules is in
    the public interest because it will prevent consumers from
    temporarily losing local service, and because Qwest and the
    Acquiring Carriers have agreed to notify the affected customers as
    described below. Qwest and the Acquiring Carriers state that a
    two-step process to notify the affected customers of the transaction
    has already begun, with Qwest sending notification letters pursuant
    to its application requesting authority under section 214(a) of the
    Communications Act of 1934, 47 U.S.C. § 214(a), and section 63.71 of
    the Commission's rules, 47 C.F.R. § 63.71, to discontinue operations
    in the affected Utah exchanges.[^14] These initial notification
    letters informed the affected customers that, after the transfer of
    service from Qwest to the Acquiring Carriers, they would receive the
    same local telephone service with no changes, that they would be
    free to select new local basic or local long distance service
    providers, and that they would be able to contact Qwest free of
    charge with any questions regarding the transfer.[^15]

8.  According to Qwest and the Acquiring Carriers, once the proposed
    sale has been consummated, the Acquiring Carriers will send these
    customers a "welcome letter" notifying them of that event and
    assuring them that no charges or rate increases for local service
    will be imposed as a result of the transaction. The welcome letters
    will also state that the Acquiring Companies will pay any charges
    associated with a single carrier change made by the customer during
    a period of two billing cycles after the welcome letter.[^16] In the
    welcome letters, the Acquiring Carriers will advise the affected
    customers that the transfer of their local service may require them
    to change their intra-state and/or interstate long distance carrier
    if those carriers are not present on an Acquiring Carrier's switch.
    In the letter, the Acquiring Carriers will also promise that one of
    their representatives will call each customer in that situation to
    coordinate a switch to another long distance carrier at no
    charge.[^17] In addition, the welcome letter will provide customers
    with a toll-free number to call with any questions they may have
    about the transition.[^18] We conclude that these conditions will
    adequately protect the rights of Qwest's transferred customers.[^19]

9.  For the foregoing reasons, we grant Qwest and the Acquiring Carriers
    a waiver of the authorization and verification requirements of our
    rules for the limited purposes described above. The grant of this
    waiver is conditioned upon Qwest's and the Acquiring Carriers'
    provision of customer notification, as described above and further
    detailed in the Waiver Petition and Supplement.

    **III. ORDERING CLAUSES**

10. 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 0.91, 0.291,
    and 1.3 of the Commission\'s rules, 47 C.F.R. §§ 0.91,0.291, 1.3,
    the joint waiver request filed by Qwest Corporation and All West
    Communications, Inc., All West World Connect, Carbon/Emery Telcom,
    Inc., Central Telcom Services, Central Utah Telephone, Inc., Emery
    Telcom, Hanksville Telcom, Inc., Manti Long Distance, Manti
    Telephone Company, Skyline Telecom, UBET Telecom, Inc., and Uintah
    Basin Long Distance on November 9, 2000, and supplemented on
    December 21, 2000, IS GRANTED to the extent indicated herein.

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

    FEDERAL COMMUNICATIONS COMMISSION

    Katherine L. Schroder

Chief, Accounting Policy Division

Common Carrier Bureau

[^1]: *Implementation of the Subscriber Carrier Selection Changes
    Provisions of the Telecommunications Act of 1996 and Policies and
    Rules Concerning Unauthorized Changes of Consumers\' Long Distance
    Carriers*, CC Docket No. 94-129, Further Notice of Proposed Rule
    Making and Memorandum Opinion and Order on Reconsideration, 12 FCC
    Rcd 10674 (1997), 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 World Com v. FCC,* No. 99-1125 (D.C. Cir. June 27,
    2000); Third Report and Order and Second Order on Reconsideration,
    15 FCC Rcd 15966 (2000); *reconsideration pending*; *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)
    (*PIC Change Recon. Order*); Investigation of Access and Divestiture
    Related Tariffs, CC Docket No. 83-1145, Phase I, 101 F.C.C.2d 911
    (*Allocation Order*), 101 F.C.C.2d 935 *(Waiver Order*),
    *reconsideration* *denied*, 102 F.C.C.2d 503 (1985)
    (*Reconsideration Order*) (the *Reconsideration Order* denied
    reconsideration of both the *Allocation Order* and the *Waiver
    Order*). We refer to these orders collectively as the *Carrier
    Change Orders*.

[^2]: 47 C.F.R. §§ 64.1100 - 64.1190.

[^3]: On November 9, 2000, Qwest and the Acquiring Companies filed a
    Joint Petition for Waiver of the Commission's carrier change rules
    relating to the transfer from Qwest to the Acquiring Companies of
    the local subscriber base for 12 exchanges in Utah, totaling
    approximately 35,600 access lines (Waiver Petition). On December 21,
    2000, Qwest supplemented the Waiver Petition (Supplement) with a
    draft copy of the post-transfer customer "welcome letter" that will
    be used by the Acquiring Carriers.

[^4]: 47 U.S.C. § 258.

[^5]: The Commission\'s rules and orders clearly contemplate that a
    switchless reseller may be a customer\'s preferred carrier.
    Therefore, changes to a customer\'s preferred carrier that do not
    involve a change in the customer\'s underlying facilities-based
    carrier are nonetheless subject to the Commission\'s authorization
    and verification rules. *See Section 258 Order*, 14 FCC Rcd at
    1593,1594, paras. 145-146; *WATS International Corp. v. Group Long
    Distance (USA), Inc.*, 12 FCC Rcd 1743, 1752 (1997) (*citing* *PIC
    Change Recon. Order*, 8 FCC Rcd at 3218).

[^6]: Pursuant to these procedures, a carrier must: (1) obtain the
    subscriber\'s written authorization; (2) obtain confirmation from
    the subscriber via a toll-free number provided exclusively for the
    purpose of confirming orders electronically; or (3) utilize an
    independent third party to verify the subscriber\'s order. *See* 47
    C.F.R. § 64.1150.

[^7]: 47 C.F.R. § 1.3.

[^8]: *WAIT Radio v. FCC*, 418 F.2d 1153, 1157 (D.C. Cir. 1969), *cert.
    denied*, 409 U.S. 1027 (1972).

[^9]: *Northeast Cellular Telephone Co. v. FCC*, 897 F.2d 1164, 1166
    (D.C. Cir. 1990).

[^10]: *WAIT Radio*, 418 F.2d at 1157.

[^11]: *WAIT Radio*, 418 F.2d at 1159; *Northeast Cellular*, 897 F.2d at
    1166.

[^12]: Waiver Petition at 1-3.

[^13]: Waiver Petition at 4.

[^14]: *See* Waiver Petition at 5-6; Waiver Petition, Attachment B.

[^15]: *See* Waiver Petition, Attachment B.

[^16]: *Se**e*** Waiver Petition at 3-4; Supplement.

[^17]: *See id.*

[^18]: *See id*.

[^19]: In addition, we note that the Acquiring Carriers' welcome letters
    state that the Acquiring Carriers will be responsible for all
    service issues. *See* Waiver Petition at 4; Supplement.