**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | CC Docket No. 99-200         |
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| Numbering Resource Optimization  | ) | CC Docket No. 96-98          |
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| Implementation of the Local      | * | NSD-L-01-160                 |
| Competition Provisions of the    |   |                              |
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| Act of 1996                      | ) |                              |
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| Florida Public Service           | * |                              |
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| Temporary Waiver of 47 C.F.R.    | ) |                              |
| Section 52.19(c)(3)(ii) in the   | * |                              |
| 954 NPA                          | * |                              |
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# OrDEr {#order .unnumbered}

**Adopted: December 21, 2001 Released: December 28, 2001**

By the Common Carrier Bureau:

# introduction and background

1.  This Order addresses the Florida Public Service Commission's
    (Florida Commission) petition requesting a declaratory ruling that
    its actions, as described below, are consistent with 47 C.F.R. §
    52.19(c)(3)(ii) or, alternatively, requesting a temporary waiver of
    section 52.19(c)(3)(ii), the ten-digit dialing rule.[^1] As
    discussed below, we find that the Florida Commission's actions are
    inconsistent with section 52.19(c)(3)(ii). Nevertheless, we grant a
    temporary waiver of the ten-digit dialing rule for the 954 numbering
    plan area (NPA) until April 1, 2002 and for the 954/754-561 extended
    area services (EAS) routes until September 1, 2002.

2.  *Background.* On August 8, 1996, the Federal Communications
    Commission (Commission) released the *Local Competition Second
    Report and Order*.[^2] In that Order, the Commission determined,
    among other things, that state commissions could continue to
    implement area code relief, in accordance with the Commission's
    numbering administration guidelines.[^3] In addition, the Commission
    adopted the ten-digit dialing rule for area code overlays in section
    52.19(c)(3)(ii), which requires state commissions to introduce
    ten-digit dialing in the underlying area code as well as the area
    code overlay upon implementation of the overlay.[^4] The Commission
    reasoned that mandatory ten-digit dialing would help to ensure that
    competitors did not suffer any competitive disadvantages as a result
    of a local dialing disparity.[^5] According to the Commission,
    absent mandatory ten-digit dialing, customers may choose the local
    incumbent carrier instead of a competing carrier because the
    incumbent is more likely to provide customers with numbers in the
    underlying area code, allowing customers to dial seven-digits within
    that area code.[^6] Customers of competing carriers, however, are
    more likely to receive numbers from the overlay and, therefore, be
    required to dial ten-digits for most local calls.[^7]

3.  The Common Carrier Bureau (Bureau) has considered several prior
    requests for waiver of the ten-digit dialing requirement.[^8] The
    Bureau granted temporary waivers in all instances, but denied the
    requests of the New York and Pennsylvania Commissions for permanent
    waivers.[^9] In reviewing the waiver requests, the Bureau considered
    three factors: (1) whether service providers had insufficient time
    to adjust telecommunications networks for the change to ten-digit
    dialing; (2) whether there was insufficient time to educate
    consumers about the change in dialing patterns; and (3) whether
    there were conditions relating to geographic uniformity in the areas
    affected that weighed in favor of a temporary delay.[^10]

# discussion

4.  In its petition filed June 29, 2001, the Florida Commission explains
    that, on October 20, 2000, it adopted an Order approving an area
    code overlay to relieve the 954 NPA and the 754 NPA was subsequently
    assigned by the North American Numbering Plan Administrator (NANPA)
    for that purpose. In that Order, the Florida Commission also
    postponed implementation of area code relief pending the outcome of
    various number conservation measures, including a thousands-block
    number pooling trial in the 954 NPA commencing January 22,
    2001.[^11] In addition, the Florida Commission directed carriers to
    file jointly a notice by October 1, 2001 recommending dates for
    permissive and mandatory ten-digit dialing periods.[^12] On March
    22, 2001, however, the NANPA informed the Florida Commission that
    due to code conflicts in certain EAS routes between the 954 NPA and
    the 561 NPA, the 954 NPA only had 14 NXX codes available for
    assignment out of 119 unassigned NXX codes and the 561 NPA only had
    6 NXX codes available out of 143 unassigned NXX codes.[^13]

5.  Affected service providers filed a petition with the Florida
    Commission on April 10, 2001, proposing two options for eliminating
    the code conflicts. Under Proposal One, EAS dialing would change
    from seven-digit to one-plus ten-digit dialing and then change back
    to seven-digit dialing after the 754 overlay was implemented.[^14]
    Under Proposal Two, the 754 overlay would be implemented immediately
    in two phases: in the first phase, once the 754 overlay was
    activated, ten-digit dialing would be mandatory in the 754 NPA and
    permissive in Broward County for the 954 NPA. In the second phase,
    consumers would be allowed to dial seven or ten-digits for the
    954/754-561 EAS routes between Broward and Palm Beach Counties until
    mandatory ten-digit dialing took effect.[^15] The Florida Commission
    adopted Proposal Two on June 12, 2001.[^16] Based on the *954
    Planning Letter*, the current implementation date for mandatory
    ten-digit dialing for the 954 NPA and for the 954/754-561 EAS routes
    would be April 1, 2002 and September 1, 2002, respectively.[^17]

6.  The Florida Commission argues that its actions are consistent with
    section 52.19(c)(3)(ii) of the Commission's rules because the intent
    of Proposal Two is not to hinder competition, which the ten-digit
    dialing rule is designed to prevent, but rather, to provide needed
    numbering resources.[^18] Alternatively, the Florida Commission
    requests the Commission to grant it a temporary waiver of the
    ten-digit dialing rule until the dates set forth above, arguing that
    additional time is needed for the alarm industry to adjust their
    networks, for consumers to become well-informed about the new
    dialing pattern, and for carriers to receive needed numbering
    resources.[^19] The Florida Commission concludes that unforeseeable
    special circumstances have occurred in the 954 NPA, requiring
    immediate action.[^20]

    **A. Request for Declaratory Ruling**

7.  Pursuant to section 1.2 of the Commission's Rules, the Commission
    may make a declaratory ruling that eliminates an uncertainty or
    resolves a controversy.[^21] The uncertainty here involves the
    Florida Commission's actions related to section 52.19(c)(3)(ii) of
    the Commission's rules, which provides that "\[n\]o area code
    overlay may be implemented unless there exists, at the time of
    implementation, mandatory ten-digit dialing for every telephone call
    within and between all area codes in the geographic area covered by
    the overlay area code."[^22] We find that the language of section
    52.19(c)(3)(ii) is unequivocal in stating that mandatory ten-digit
    dialing must take place in all area codes, including the underlying
    area code, once the overlay is activated. We also find that the
    Florida Commission's intent not to harm competition does not affect
    this determination. Further, regardless of intent, postponing
    ten-digit dialing creates potential harm to competition. Thus, we
    conclude that the Florida Commission's decision to postpone
    ten-digit dialing in the 954 NPA and related EAS routes until
    sometime after the activation of the overlay is not consistent with
    section 52.19(c)(3)(ii). Consequently, we proceed with our analysis
    of the Florida Commission's petition to temporarily waive the
    ten-digit dialing requirement.

    **B. Request for Temporary Waiver of the Ten-Digit Dialing
    Requirement**

8.  Pursuant to section 1.3 of the Commission's rules, the Commission
    may grant a waiver of its rules upon a showing of "good cause."[^23]
    As determined by the U.S. Court of Appeals for the District of
    Columbia, section 1.3 allows the Commission to grant a waiver if
    special circumstances warrant a departure from the general rule and
    that departure serves the public interest.[^24]

9.  The Bureau analyzes three factors when considering waiver requests
    of ten-digit dialing: (1) whether service providers had insufficient
    time to adjust telecommunications networks for the change to
    ten-digit dialing; (2) whether there was insufficient time to
    educate consumers about the change in dialing patterns; and (3)
    whether there were conditions relating to geographic uniformity in
    the areas affected that weighed in favor of a temporary delay.[^25]
    Regarding the first two factors, we find that the code conflicts
    resulting from the EAS routes significantly shortened the projected
    life span of the 954 NPA. In fact, prior to learning of this
    problem, the Florida Commission had anticipated extending the life
    of the 954 NPA through thousands-block number pooling, which
    commenced in January 2001. Thus, given the sudden shortened life
    span of the 954 NPA and the limited options available, the Florida
    Commission had little time to educate consumers about ten-digit
    dialing and allow affected service providers time to adjust their
    networks.[^26] Because the Florida Commission presented no arguments
    relating to geographic uniformity, we decline to address this
    factor.

10. We find that the Florida Commission has shown "good cause" for
    justifying a temporary waiver of the ten-digit dialing rule. We
    agree that a temporary waiver of the ten-digit dialing requirement
    would provide more time for service providers to adjust their
    networks and for consumers to be educated about the new dialing
    pattern. Accordingly, we grant the Florida Commission's request to
    delay the implementation of mandatory ten-digit dialing until April
    1, 2002 in the 954 NPA, and until September 1, 2002 in the
    954/754-561 EAS routes, in accordance with the *954 Planning
    Letter*.

    **IV. CONCLUSION AND ORDERING CLAUSE**

11. We find that the Florida Commission has shown sufficient cause to
    justify a grant of the temporary waiver of the ten-digit dialing
    rule. Thus, the Florida Commission may postpone mandatory ten-digit
    dialing in the 954 NPA until April 1, 2002, and until September 1,
    2002 in the 954/754-561 EAS routes, as outlined in the *954 Planning
    Letter*.

12. IT IS THEREFORE ORDERED, pursuant to sections 1.2, 1.3, and 52.19 of
    the Commission's Rules, 47 C.F.R. §§ 1.2, 1.3, and 52.19 and section
    251 of the Communications Act of 1934, as amended, 47 U.S.C. § 251,
    and pursuant to sections 0.91, 0.291, of the Commission's Rules, 47
    C.F.R. §§ 0.91, 0.291, IT IS ORDERED that the Florida Public Service
    Commission Petition for Expedited Declaratory Statement and/or
    Expedited Petition for Temporary Waiver of 47 C.F.R. Section
    52.19(c)(3)(ii) in the 954 NPA is DENIED in part and GRANTED in part
    to the extent described herein.

> FEDERAL COMMUNICATIONS COMMISSION
>
> Jeffrey J. Carlisle

Senior Deputy Bureau Chief,

Common Carrier Bureau

[^1]: *Florida Public Service Commission Petition for Expedited
    Declaratory Statement and/or Petition for Expedited Temporary Waiver
    of 47 C.F.R. § 52.19(c)(3)(ii) in the 954 NPA, CC Docket No. 96-98*,
    filed June 29, 2001 (Florida Commission Petition).

[^2]: *Implementation of the Local Competition Provision of the
    Telecommunications Act of 1996*, Second Report and Order and
    Memorandum Opinion and Order, 11 FCC Rcd 19392 (1996) (*Local
    Competition Second Report and Order*).

[^3]: *Id.* at 19518, para. 281. The allowable forms of area code relief
    include: (1) geographic split; (2) area code realignment; and (3)
    area code overlay. *See id.* at 19513, para. 273. In the *Third
    Report and Order*, the Commission also reversed the previous ban on
    service-specific and technology-specific overlays, which are now
    available as area code relief options on a case-by-case basis to
    states that petition for, and receive, Commission approval. *See
    Numbering Resource Optimization,* Third Report and Order and Second
    Order on Reconsideration in CC Docket No. 96-98 and CC Docket No.
    99-200, FCC 01-362, at paras. 67-94 (rel. Dec. 28, 2001) (*Third
    Report and Order*).

[^4]: 47 C.F.R. § 52.19(c)(3)(ii) (ten-digit dialing rule); *see also*
    *Local Competition Second Report and Order*, 11 FCC Rcd at 19518,
    paras. 286-87.

[^5]: *Id.*

[^6]: *See id.* at 19518-19, para. 287.

[^7]: *See id.*

[^8]: *See* Letter from Dorothy T. Attwood, FCC to Richard L. Mathias,
    Illinois Commerce Commission, dated April 6, 2001 (granting the
    Illinois Commerce Commission a temporary waiver of the ten-digit
    dialing rule for an additional nine months, until January 7, 2002)
    (*Second Illinois Waiver*); *Illinois Commerce Commission Petition
    for Expedited Temporary Waiver of 47 C.F.R. Section
    52.19(c)(3)(ii)*, Order, 15 FCC Rcd 4632 (rel. Mar. 2, 2000)
    (granting a temporary waiver of mandatory ten-digit dialing until
    the last of four planned overlays was implemented, but no later than
    April 1, 2001) (*Illinois Waiver*); *see also* *Pennsylvania Public
    Utility Commission Petition for Expedited Waiver of 47 C.F.R.
    Section 52.19 for Area Code 412 Relief*, Memorandum Opinion and
    Order, 12 FCC Rcd 3783 (CCB 1997) (granting approximately a
    seven-month delay of mandatory ten-digit dialing after the area code
    overlay had been implemented); *New York Department of Public
    Service Commission Petition for Expedited Waiver of 47 C.F.R.
    52.19(c)(3)(ii)*, Order, 13 FCC Rcd 13491 (CCB 1998) (granting
    approximately an eight-month delay of mandatory ten-digit dialing
    after the area code overlay had been implemented); *Public Utility
    Commission of Texas Petition for Expedited Waiver of 47 C.F.R.
    Section 52.19(c)(3)(ii) for Area Code Relief*, Memorandum Opinion
    and Order, 13 FCC Rcd 21798 (CCB 1998) (In granting a waiver, the
    Bureau reasoned that the Texas Commission did not finalize area code
    relief plans until shortly before exhaust, and consequently, only
    five months remained to prepare customers for the change in dialing
    patterns and to program alarm equipment).

[^9]: *See Local Competition Second Report and Order*, 11 FCC Rcd at
    19518-19, para. 287.

[^10]: *Illinois Waiver*, 15 FCC Rcd at 4634, para. 3.

[^11]: Florida Commission Petition at 2.

[^12]: *Id.* at 2-3.

[^13]: *Id*. at 4.

[^14]: *Id.*

[^15]: *See id.* at 4-5.

[^16]: *Id.* at 5.

[^17]: *See* NPA 754 to Overlay NPA 954 (Southeast Florida), PL-291
    (Aug. 4, 2001) (*954 Planning Letter*). This document is available
    at \<http://www.nanpa.com\>.

[^18]: *Id*.

[^19]: *See id*. at 6-7.

[^20]: *Id.* at 8.

[^21]: 47 C.F.R. § 1.2.

[^22]: 47 C.F.R. § 52.19(c)(3)(ii).

[^23]: 47 C.F.R. § 1.3.

[^24]: *See Northeast Cellular Telephone Co., L.P. v. FCC*, 897 F.2d
    1164, 1166 (D.C. Cir. 1990) (*citing WAIT Radio v. FCC*, 418 F.2d
    1153, 1159 (D.C. Cir. 1969), *cert. denied*, 409 U.S. 1027 (1972));
    *see also Industrial Broadcasting, Co. v. FCC*, 437 F.2d 680, 683
    (D.C. Cir. 1970).

[^25]: *Illinois Waiver*, 15 FCC Rcd at 4634, para. 3.

[^26]: We agree that the Florida Commission's predicament may be
    described as an unforeseeable special circumstance and we find that
    the Florida Commission's actions did not indicate an attempt on
    their part, to unduly delay ten-digit dialing. Based on its Order
    directing carriers to file by October 1, 2001, a joint
    recommendation for permissive and mandatory dialing dates, it seems
    that the Florida Commission had planned to implement ten-digit
    dialing some time in 2002.