**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matters of                | *  | EB-00-TC-F-003               |
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| Curt Himmelman,                  | ** | EB-00-TC-F-004               |
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| Petitioner,                      | *  |                              |
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| MCI Communications Corporation,  | *  |                              |
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| Respondent.                      | ** |                              |
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| Young Soon Oh and Bernice        | *  |                              |
| Schatz,                          | *) |                              |
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| Petitioners,                     |    |                              |
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| AT&T Corporation,                |    |                              |
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**declaratory order**

**Adopted: March 12, 2002 Released: March 19, 2002**

By the Commission:

# iNTRODUCTION

1.  In this Declaratory Order, we grant Requests for Declaratory Ruling
    ("Petitions") filed by Curt Himmelman, and Young Soon Oh and Bernice
    Schatz (collectively "Petitioners'). [^1] The Petitions arose out of
    class action lawsuits filed in federal district courts against MCI
    Communications Corporation (MCI) and AT&T Corporation (AT&T)
    (collectively "Respondents") alleging that the Respondents fail to
    provide consumers with a second listing during Area Code Directory
    Assistance ("directory assistance") calls in accordance with their
    tariffs.[^2] Pursuant to the doctrine of primary jurisdiction, the
    district courts asked the Commission to determine whether the
    practices described by the Petitioners in their Petitions are unjust
    and unreasonable within the meaning of section 201(b) of the
    Communications Act. [^3] As described below, we find that the MCI
    and AT&T practices are unjust and unreasonable under section
    201(b).[^4]

# BACKGROUND

2.  As class representatives, the Petitioners filed lawsuits in the U.S.
    District Court for the District of Columbia and the U.S. District
    Court for the District of New Jersey. [^5] In each of these actions,
    the court found that the central claims were within the primary
    jurisdiction of this Commission. The U.S. District Court for the
    District of Columbia dismissed the case without prejudice.[^6] The
    U.S. District Court for the District of New Jersey stayed the action
    pending a ruling by the Commission.[^7]

3.  On June 12, 2000, the Petitioners concurrently filed Requests for
    Declaratory Ruling with the Commission.[^8] The Petitioners asked
    the Commission to issue a declaratory ruling that the manner in
    which MCI and AT&T provided directory assistance service violated
    their tariffs and constituted unjust and unreasonable practices
    under section 201(b).[^9] The filed tariffs of MCI and AT&T, in
    effect during the period covered by the Petitions,[^10] stated that
    up to two listings would be provided per call.[^11] The Petitioners
    allege, however, that consumers are not given a reasonable
    opportunity to make two requests. Specifically, the Petitioners
    contend that because the Respondents use the singular-form prompts,
    "What city, please? and "What listing, please?", the Respondents'
    customers wanting to get two listings at once pursuant to the tariff
    expect another opportunity to request a second listing, but are not
    given such an opportunity.[^12] As a result, the Respondents'
    customers are required to make a subsequent directory assistance
    call to get a second listing, and the Petitioners assert that the
    Respondents refuse to provide a credit for the service fee charged
    for that second call.[^13]

# discussion

## Statute of Limitations

4.  The Respondents contend that under section 415(b) of the Act, the
    Petitioners are barred from seeking relief for any portion of the
    claim that occurred before June 12, 1998.[^14] Section 415(b)
    provides, in pertinent part, that "\[a\]ll complaints against
    carriers for the recovery of damages not based on overcharges shall
    be filed with the Commission within two years from the time the
    cause of action accrues, and not after . . ."[^15] The matter
    referred to us by the district courts involves whether the
    Respondents have engaged in unjust and unreasonable practices in
    providing listings during a directory assistance call. The Petition
    did not include any claims related to damages, nor did it challenge
    whether the crediting practices represented unjust and unreasonable
    practices. Hence, section 415(b) is not applicable to the issues
    raised herein.

## Alleged Section 201(b) Violations

5.  The Petitioners contend that the procedures chosen by the
    Respondents are unjust and unreasonable practices in violation of
    section 201(b) of the Act[^16] because they are designed to mislead
    customers and prevent them from requesting and obtaining a second
    listing as provided for in the Respondents' tariffs.[^17] In
    response, MCI and AT&T contend that the Petitioners have failed to
    demonstrate that the carriers are violating section 201(b) because
    their procedures do allow customers to request and obtain a second
    listing.[^18] As discussed below, we find that the practices of MCI
    and AT&T violate section 201(b).

### The Parties' Contentions

6.  The Petitioners argue that the Respondents' use of singular-form
    prompts during directory assistance calls misleads customers into
    believing that they will be provided another opportunity later in
    the call to request a second listing.[^19] When no such opportunity
    is provided, customers have to make a subsequent call and incur an
    additional charge to obtain a second listing.[^20] The Petitioners
    allege that in past years, customers were allowed to make additional
    requests and specifically told to stay on the line to receive
    further assistance.[^21] The Petitioners maintain that the
    Respondents' practice of using the singular-form prompts manipulates
    customers based on their expectations and past experiences.
    Therefore, they argue, the practices are unjust and unreasonable
    within the meaning of section 201(b).[^22]

7.  The Petitioners suggest that it would be simple for the Respondents
    to modify their procedures so that customers are readily provided
    the means for requesting up to two listings per call. The
    Petitioners maintain that the Respondents could modify the initial
    prompts to the plural forms, "What cities, please?" and "What
    listings, please?", thus indicating that customers should request
    both listings up front in the call.[^23] The Petitioners also
    contend that the Respondents could provide an opportunity after the
    first request for customers to make a second request.[^24]

8.  The Respondents deny the Petitioners' allegations that the
    singular-form prompts mislead customers and prevent them from
    requesting a second listing.[^25] MCI maintains that contrary to the
    Petitioners' claims, its customers are provided several
    opportunities to request two listings during a directory assistance
    call.[^26] AT&T asserts that if a caller makes a second request at
    the outset of the call, its operator will respond to the
    request.[^27]

9.  The Respondents also argue that the singular-form prompts are
    consistent with those used throughout the industry.[^28] As a
    result, they maintain that customers are very familiar with their
    use,[^29] know that the singular form includes the plural,[^30] and
    know how to make a request for a second listing.[^31] Even so, they
    reason, customers are presumed to know the provisions of the
    relevant tariffs.[^32]

10. The Respondents also contend that the Petitioners have no basis for
    arguing that it would be a simple matter to change how requests for
    second listings are elicited from customers. They assert that it
    would be expensive to modify the manner in which customers request a
    second listing.[^33] They also argue that the technological means do
    not exist to have quality loopback functionality, thus allowing
    customers to request the second listing at the back end of the
    call.[^34] There simply is no basis, they maintain, for requiring a
    change in the manner listings are offered when neither the tariff
    nor the Act requires the service to be provided in a specific
    manner.[^35]

11. The Petitioners reply that the Respondents cannot simply claim that
    because their practices conform to a standard industry practice, the
    practices are therefore just and reasonable.[^36] They maintain that
    whether practices are just and reasonable must be assessed on a
    case-by-case basis.[^37] In the case of the Respondents, because
    their practices mislead customers and prevent them from requesting a
    second listing during a call as described in the tariffs, their
    practices must be found to violate section 201(b).[^38]

### Decision 

12. In this declaratory ruling, we are responding to the courts'
    requests that the Commission address whether AT&T and MCI violated
    section 201(b) of the Act in the way they provided directory
    assistance listings. Although the Act did not require AT&T and MCI
    to offer two listings per call, they chose to do so through their
    tariffs. Once these offers were made, they were obligated to provide
    the listings in a just and reasonable manner.[^39] In assessing
    whether there has been a violation of section 201(b), we look at the
    record to determine whether a reasonable customer would understand
    how to request up to two listings given the Respondents'
    practices.[^40] Here, the Respondents' use of singular-form prompts
    combined with their failure to disclose the procedures for customers
    to request and obtain up to two listings per call served to hide the
    availability of the offering. Therefore, we find that the
    Respondents have violated section 201(b) of the Act.

13. Under section 201(b) of the Act, carriers' practices in providing
    service must be "just and reasonable." In its tariff, MCI stated,
    "The Directory Assistance operator will search for up to two numbers
    per call for a charge of \$1.40 per call."[^41] Similarly, AT&T's
    tariff stated, "Up to two requests for listings within the area code
    dialed may be made on each call to Directory Assistance for a charge
    of \$1.40."[^42] Here, we must decide whether the singular-form
    prompts are just and reasonable when viewed in light of the services
    offered by the tariffs, and we conclude that they are not. The
    audible prompts used by the Respondents explicitly stated, "What
    city, please?" and "What listing, please?" The singular form of
    these audible prompts is inconsistent with the language contained in
    the Respondents' tariffs. We believe that it is reasonable for
    customers hearing a singular-form prompt to infer that they are
    being limited to requesting a single listing. Without being provided
    specific information on how to get a second listing, it is
    unreasonable to believe that customers would "naturally" know how
    and when to make the request for a second listing. The presumed
    general familiarity with the singular-form prompts does not mean
    customers are familiar with the individual procedures established by
    the carriers to actually request a second listing. It is simply
    misleading for a carrier to use a singular-form prompt when it is
    offering consumers an opportunity to request multiple listings.

14. The misleading nature of the singular-form prompts is not remedied
    by the fact that the prompts may conform to standard industry
    practice. Conformance with an industry practice does not
    automatically make a practice just and reasonable within the meaning
    of section 201(b) of the Act, because violations of section 201(b)
    are determined based on the specific circumstances of a case.[^43]
    AT&T cites *Erdman Technologies Corporation v. US Sprint
    Communications Company*, for the proposition that industry
    guidelines may be relevant in determining whether practices comply
    with section 201(b).[^44] In *Erdman*, an industry group had
    established specific guidelines.[^45] In the present case, however,
    there are no established industry guidelines or standards. It is not
    even clear from the record that there is a standard industry
    practice beyond the use of the singular-form prompts. For example,
    MCI asserts that customers have three options, available at
    different points during the call, to request a second listing.[^46]
    AT&T, however, insists that customers must make their request for
    two listings to the live operator at the outset of a call.[^47]
    Thus, rather than eliciting the requests for two listings based on a
    standard industry practice, it appears that the Respondents have
    individually tailored their directory assistance service offerings.
    In a competitive marketplace such as this one, service providers
    freely determine the terms of their service offerings.[^48]

15. While the Respondents have great latitude in the manner in which
    they choose to offer a service, the Commission has consistently
    encouraged service providers to furnish customers with information
    that enhances their ability to understand and utilize a
    service.[^49] Without such information, customers will be unable to
    make informed choices and benefit from the competitive
    marketplace.[^50] The record supports the Petitioners' claim that
    they were not fairly on notice of the procedures required to get
    additional listings. In this case, notice cannot be deemed to have
    been provided based on a standard industry practice. Nor is notice
    provided by the Respondents' tariffs, because they do not provide
    customers with any specifics concerning the method or timing of
    making additional requests.[^51]

16. Neither MCI nor AT&T provided any evidence indicating that the
    procedures required to obtain the second listing are proactively
    communicated to a customer either during the call or through some
    other means. In fact, the record indicates that customers are only
    provided this information if they ask or seek credit for a second
    directory assistance call made specifically to get an additional
    listing that they were unable to request in a prior call.[^52] AT&T
    insists that if customers did not understand how to make the request
    for two listings from the live operator the first time they heard
    the prompts, they would certainly realize what was needed to get the
    second listing the next time a call was made.[^53] We find this
    argument unpersuasive. It is unreasonable to expect consumers to
    determine a workable procedure wholly through trial and error. For
    the reasons discussed above, we grant the Petitioners requests' and
    find that the carriers' failure to disclose the procedures required
    to request up to two listings during a directory assistance call is
    an unjust or unreasonable practice within the meaning of section
    201(b), and otherwise deny the Petition. [^54]

## Other Matters

17. We reject the respondents' suggestions that the issue referred by
    the courts as to the lawfulness of their practices can only be
    decided in a formal complaint (AT&T) or rulemaking (MCI) proceeding.
    Deciding the issue in the context of a declaratory ruling proceeding
    is well within the Commission's broad discretion.[^55]

# ordering clause

18. Accordingly, pursuant to sections 4(i), 4(j), and 201(b) of the
    Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 154(j),
    201(b), and section 1.2 of the Commission's Rules, 47 C.F.R. §1.2,
    IT IS ORDERED, that the Requests for Declaratory Ruling filed by
    Curt Himmelman, Young Soon Oh, and Bernice Schatz are GRANTED to the
    extent described herein.

19. IT IS FURTHER ORDERED that the Petitioner's Motion to Strike New
    Assertion by MCI or, in the Alternative, to Supplement Record, filed
    by Petitioner Himmelman on May 25, 2001, IS GRANTED.[^56]

20. IT IS FURTHER ORDERED that the Petitioner's Motion to Supplement
    Record, filed by Petitioners Oh and Schatz on October 19, 2001, IS
    DENIED.[^57]

21. IT IS FURTHER ORDERED that the Chief of the Telecommunications
    Consumers Division of the Enforcement Bureau shall forward a copy of
    this Memorandum Opinion and Order to the Clerk, U.S. District Court
    for the District of Columbia and to the Clerk, U.S. District Court
    for the District of New Jersey.

    FEDERAL COMMUNICATIONS COMMISSION

    William F. Caton

    Acting Secretary

[^1]: *Curt Himmelman v. MCI Communications Corporation*, File No.
    EB-00-TC-F-003 (filed June 12, 2000) (Himmelman Petition); *Young
    Soon Oh and Bernice Schatz,* File No. EB-00-TC-F-004 (filed June 12,
    2000) (Oh Petition).

[^2]: Himmelman Petition at Ex. 1, *Curt Himmelman, on behalf of himself
    and all others similarly situated, v. MCI Communications
    Corporation,* Case No. 1:99CV01705 (D.D.C. 1999); Oh Petition at Ex.
    1, *Young Soon Oh and Bernice Schatz on behalf of themselves and all
    similarly situated, v. AT&T Corp.,* Civil Action No. 99-2161 (D.N.J.
    1999).

[^3]: Himmelman Petition at Exhibit 1; Oh Petition at Exhibit 2.

[^4]: Although the Petitions include a claim that the Respondents'
    practices violate their tariffs, because we find that the carriers'
    practice is unjust and unreasonable in violation of section 201(b)
    of the Act, we need not reach the question of whether they violated
    their tariffs.

[^5]: Himmelman Petition at Exhibit 1; Oh Petition at Exhibit 1.

[^6]: Himmelman Petition at Exhibit 2.

[^7]: Oh Petition at Exhibit 2.

[^8]: *See* Himmelman and Oh Petitions.

[^9]: Himmelman Petition at 2; Oh Petition at 2.

[^10]: On July 31, 2001, the Commission's detariffing order became
    effective. The order provided that carriers are no longer permitted
    to file tariffs related to consumer domestic long distance services.

[^11]: MCI FCC Tariff No. 1, 18.12 at Section 3 stated, "The Directory
    Assistance operator will search for up to two numbers per call."
    Similarly, AT&T F.C.C. Tariff No. 1, §6.20.2.A stated, "Up to two
    requests for listings within the area code dialed may be made on
    each call to Directory Assistance."

[^12]: Himmelman Petition at 2-3; Oh Petition at 2-3.

[^13]: Himmelman Petition at 3-4; Oh Petition at 4.

[^14]: MCI Answer at 3; AT&T Opposition at 10.

[^15]: 47 U.S.C. § 415(b).

[^16]: Section 201(b) of the Act states, in pertinent part, that
    "\[a\]ll charges, practices, classifications, and regulations for
    and in connection with such communication service, shall be just and
    reasonable, and any such charge, practice, classification, or
    regulation that is unjust or unreasonable is hereby declared to be
    unlawful . . . . " *Id.* § 201(b).

[^17]: Himmelman Petition at 2; Oh Petition at 2.

[^18]: MCI Answer at 2; AT&T Opposition at 3.

[^19]: Himmelman Petition at 2-3; Oh Petition at 3.

[^20]: Himmelman Petition at 3; Oh Petition at 3.

[^21]: Himmelman Petition at 3; Oh Petition at 3.

[^22]: Himmelman Petition at 2; Oh Petition at 2.

[^23]: Himmelman Petition at 4; Oh Petition at 4.

[^24]: Himmelman Petition at 4; Oh Petition at 4.

[^25]: MCI Answer at 2; AT&T Opposition at 3.

[^26]: MCI Answer at 2. They contend that their service allows customers
    to: 1) request two listings during the initial prompts; 2) remain
    silent at the initial prompts; or 3) press "0" at any time during
    the automated recording. MCI asserts that each option will lead to a
    live operator joining the call, because its operators are always
    present during a directory assistance query.

[^27]: AT&T Opposition at 3. The front-end of AT&T's directory
    assistance calls are handled by live operators. The remainder of the
    call is automated. Because the front-end is handled by a live
    operator, they contend that consumers can readily seek additional
    assistance if two listings are sought.

[^28]: MCI Answer at 3; AT&T Opposition at 10.

[^29]: AT&T Opposition at ii.

[^30]: AT&T Brief at 7-8.

[^31]: MCI Answer 3-4; AT&T Opposition at ii.

[^32]: MCI Reply Brief at 6; AT&T Brief at 7.

[^33]: AT&T Opposition at 5, 7.

[^34]: AT&T Opposition at 7.

[^35]: AT&T Brief at 16.

[^36]: Himmelman Brief at 3; Oh Brief at 4.

[^37]: Himmelman Brief at 3; Oh Brief at 4.

[^38]: *See generally* Himmelman and Oh Briefs.

[^39]: *See Telecommunications Research and Action Center and Consumer
    Action v. Central Corp. et al.,* 4 FCC Rcd. 2,157, 2,159 (Com. Car.
    Bur. 1989) (finding that the carriers' practice of call blocking,
    coupled with the failure to provide adequate consumer information,
    is unjust and unreasonable in violation of section 201(b)).

[^40]: *See* *e.g*., *Business Discount Plan, Inc.,* Notice of Apparent
    Liability for Forfeiture, 14 FCC Rcd. 340, 356 (1998).

[^41]: Himmelman Petition at 3 (stating that the current charge per call
    is \$1.40, while in prior periods the charge was \$1.10 or \$0.95
    per call); *see also* Himmelman Brief at Exhibit A (citing MCI FCC
    Tariff No. 1, 18.12 at Section 3).

[^42]: Oh Petition at 2 (stating that the current charge per call is
    \$1.40, while in prior periods the charge was \$1.10 or \$0.95 per
    call); *see also* Oh Reply Brief at Exhibit B (citing AT&T F.C.C.
    Tariff No. 1, §6.20.2.A).

[^43]: *Southwestern Bell Mobile Systems, Inc., Petition for Declaratory
    Ruling Regarding the Just and Reasonable Nature of, and State
    Challenges to, Rates Charged by CMRS Providers when Charging for
    Incoming Calls and Charging for Calls in Whole-Minute Increments*,
    14 FCC Rcd. 19,898, 19,905 (1999).

[^44]: AT&T Reply Brief at 6.

[^45]: 15 FCC Rcd 7232, 7244-46, ¶¶22-24 (1999).

[^46]: MCI Answer at 2.

[^47]: AT&T Opposition at 7-8.

[^48]: *Southwestern Bell Mobile Systems, Inc**.***, 14 FCC Rcd. at
    19,905.

[^49]: *See, e.g.,* *Billed Party Preference for InterLATA 0+ Calls*,
    Second Report and Order and Order on Reconsideration, 13 FCC Rcd
    6122, 6124 (1998) (asserting that disclosure rules for Operator
    Service Providers are pro-consumer and pro-competitive); *see also
    Truth-In-Billing and Billing Format*, 14 FCC Rcd 7492, 7497-7499
    (1999) (ensuring that consumers are provided with the basic
    information they need to make informed choices in a competitive
    telecommunications marketplace).

[^50]: *See supra* note 48.

[^51]: The filed tariff doctrine provides that customers are presumed to
    have knowledge of the tariffs. *See Marcus v. AT&T*, 138 F.3d 46, 56
    (2d Cir. 1998). In the context of this proceeding, this doctrine
    does not help the Respondents. The Petitioners have established that
    they knew the terms and conditions contained in the tariffs, i.e.,
    that they were legally entitled to request up to two listings per
    directory assistance call. Because the tariffs did not disclose the
    procedures or requirements for requesting a second listing, however,
    knowledge of the filed tariff did not provide the Petitioners with
    the means for obtaining the described service.

[^52]: MCI Brief at 4.

[^53]: AT&T Opposition at 7-8.

[^54]: We do not set out to prescribe a specific method of disclosure to
    the Respondents. AT&T has pointed to the fact that adding loopback
    functionality would result in significant costs, although they
    provided no information on what the costs would be for implementing
    loopback functionality on the wireline network. Absent compelling
    circumstances, we allow carriers flexibility in determining how they
    will provide customers with the information required to utilize the
    service offered.

[^55]: *See* 47 U.S.C. §154(i), (j); 5 U.S.C. § 554(e), 47 C.F.R. §1.2.

[^56]: MCI introduced a claim in its Reply Brief that had not been
    introduced in previous filings. The information at the heart of the
    new claim should have been accessible to MCI based on its records.
    As a result, this claim should have been raised in earlier filings.
    Therefore, we grant the Petitioner's Motion to Strike New
    Assertions.

[^57]: The Petitioners sought to supplement the record to refute AT&T's
    claim on the feasibility of adding loopback functionality. Because
    we make no decision here on whether the Respondents must implement
    such a functionality, there is no need to supplement the record on
    this point. Therefore, we deny the Petitioners' Motion to Supplement
    the Record.