Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of                 | *  | CC Docket No. 96-98          |
|                                  | *) |                              |
| Illinois Citizens Utility Board  | ** |                              |
|                                  |    |                              |
| Motion for Stay of 47 CFR §      | *  |                              |
| 52.19(c)(3)(ii)                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
+----------------------------------+----+------------------------------+

**ORDER**

**Adopted: January 4, 2001 Released: January 4, 2002**

By the Senior Deputy Chief, Common Carrier Bureau:

# Introduction and Background

1.  This Order addresses the Illinois Citizen's Utility Board's (CUB)
    motion for stay of the Federal Communications Commission's (FCC or
    Commission) ten-digit dialing rule[^1] for the 847 and 224 area
    codes in suburban Chicago.[^2] Because we find that the CUB has
    failed to demonstrate that it will suffer irreparable harm if denied
    a stay, and because it is our judgement that granting a stay would
    jeopardize the public interest, we deny the CUB's request.

2.  On August 10, 1999, the Illinois Commerce Commission (Illinois
    Commission) petitioned the FCC for a temporary waiver of the
    mandatory ten-digit dialing rule in the Chicago metropolitan area
    until the last of four area code overlays was adopted in that
    area.[^3] On March 2, 2000, the FCC's Common Carrier Bureau (Bureau)
    granted the petition, allowing the Illinois Commission to delay
    implementing ten-digit dialing in all areas of metropolitan Chicago,
    until the last of four planned area code overlays was activated, but
    no later than April 1, 2001.[^4] The Bureau determined that the
    Illinois Commission needed time to conduct an efficient, one-time
    customer education campaign.[^5]

3.  On January 31, 2001 the Illinois Commission filed another petition
    requesting that the Bureau extend the expiration date of the
    previous waiver because the projected exhaust date for the 847 NPA
    had been extended into 2001.[^6] In the *Second Waiver Order*
    released April 6, 2001, the Bureau granted the Illinois Commission's
    request to extend the waiver for an additional nine months beginning
    April 6, 2001 and ending January 7, 2002.[^7] The Bureau did not
    find that carriers needed additional time to update their networks,
    but did conclude that customers still needed to be educated about
    dialing patterns.[^8]

4.  On October 4, 2001, the CUB filed a petition with the FCC requesting
    a permanent waiver of the ten-digit dialing rule in the geographic
    area covered by the 847 and 224 area codes.[^9] At the same time CUB
    filed its Petition for Stay.[^10] CUB requests that the Commission
    issue a stay of section 52.19(c)(3)(ii)[^11] of the Commission's
    rules with respect to the 847 and 224 Number Planning Areas (NPAs)
    until the Commission rules on CUB's Petition for Expedited Permanent
    Waiver of section 52.19(c)(3)ii) of the Commission's rules.[^12]

# Discussion

5.  In determining whether to stay the effectiveness of one of its
    orders, the Commission applies a four part test.[^13] Under this
    test, a stay is warranted if the moving party can demonstrate
    that (1) it is likely to prevail on the merits; (2) it will suffer
    irreparable harm absent a stay; (3) interested parties will not be
    harmed if the stay is granted; and (4) the public interest would
    favor a grant of the stay. Upon examination of the motion for stay,
    we find that the CUB fails to meet all four prongs of the test.

6.  The CUB believes that failure to grant the requested relief would
    severely prejudice the citizens of Illinois.[^14] The CUB states
    that telephone customers in the 847 and new 224 area codes will
    suffer a significant burden if forced to dial eleven digits for each
    call, both within and between area codes.[^15] The CUB also believes
    that granting the requested relief is in the public interest,
    explaining that the dialing of one-plus-ten-digits is confusing and
    burdensome, particularly for the elderly, the disabled and
    school-age children.[^16]

7.  The CUB also believes that the harm, if any, to carriers serving the
    847 and 224 NPA will be slight. Specifically, the CUB states that
    "dialing disparity" does not and will not exist any time soon in the
    847 and 224 area codes because, as a result of the successful
    implementation of number pooling and conservation measures in
    Illinois, all carriers will have equal and plentiful access to
    blocks of numbers in the 847 NPA. Therefore, the CUB believes that
    there will be no competitive harm if CUB's stay is granted. Finally,
    the CUB notes that it is also requesting an expedited permanent
    waiver of the ten-digit dialing requirement from the
    Commission.[^17]

8.  We find that the CUB has not demonstrated that a stay is warranted
    in this instance, and deny the motion accordingly. First, the CUB
    has not set forth new or novel arguments in support of its request
    for stay that are different from those already presented to,
    considered by, and rejected by the Commission.[^18] It has therefore
    failed to demonstrate a likelihood of success on the merits of its
    related waiver petition, given that it has not provided any
    explanation or justification as to why we should now reverse our
    earlier determinations.[^19] Second, the CUB has failed to show that
    consumers would suffer irreparable harm if the stay is not granted.
    In this respect, we note that the Illinois Commerce Commission has
    twice acted to extend the deadline for ten-digit dialing to protect
    the public interest by ensuring that the public received adequate
    notice and education. The Illinois Commerce Commission has not,
    however, filed for any additional extension. Third, we find that the
    CUB has not demonstrated that carriers with numbers from the 224
    overlay NPA would not be harmed if the stay is granted because,
    absent mandatory ten-digit dialing, their customers would be
    required to dial ten digits for most local calls (since most local
    numbers in use would be in the established underlying 847 NPA) while
    customers of carriers with numbers in the 847 NPA would place most
    local calls by dialing seven digits.[^20] Finally, the Commission
    has repeatedly stated that area code overlays without ten-digit
    dialing are anticompetitive because they create local dialing
    disparity,[^21] which we find to be against the public interest.
    Accordingly, the CUB has failed to meet the requirements for a grant
    of a stay.

# CONclusion and ordering clause

9.  We find that the Illinois Citizens Utility Board has not shown
    sufficient cause to justify a stay of the ten-digit dialing rule
    with respect to the 847 and 224 NPAs. The second request for waiver
    filed by the Illinois Commission will expire on January 7, 2002.
    Accordingly, ten-digit dialing must be implemented in these NPAs no
    later than January 8, 2002.

10. IT IS THEREFORE ORDERED, pursuant to sections 1.3, and 52.19 of the
    Commission's Rules, 47 C.F.R. §§ 1.3, 52.19, and the authority
    delegated in to sections 0.91 and 0.291, of the Commission's Rules,
    47 C.F.R. §§ 0.91, 0.291, IT IS ORDERED that the Illinois Citizens
    Utility Board Motion for Stay of 47 C.F.R. Section 52.19(c)(3)(ii)
    in the 847 and 224 NPAs is DENIED.

> FEDERAL COMMUNICATIONS COMMISSION
>
> Jeffrey J. Carlisle

Senior Deputy Chief,

Common Carrier Bureau

[^1]: *See* 47 C.F.R. § 52.19(c)(3)(ii).

[^2]: *See Illinois Citizens Utility Board Amended Motion for Stay of 47
    CFR § 52.19(c)(3)(ii)* (dated Oct. 1, 2001, filed Oct. 4, 2001) (CUB
    Motion for Stay).

[^3]: *See* *Petition of the Illinois Commerce Commission for Expedited
    Temporary Waiver of 47 CFR § 52.19(c)(3)(ii)* (filed Aug. 10, 1999).

[^4]: *Illinois Commerce Commission Petition for Expedited Temporary
    Waiver of 47 CFR §52.19(c)(3)(ii)*, Order, 15 FCC Rcd 4632, 4633
    (2000) (*First Waiver Order*).

[^5]: *Id.* at 4639-40.

[^6]: *Expedited Petition of the Illinois Commerce Commission To Reset
    The Mandatory Expiration Date of its Temporary Waiver of 47 C.F.R.
    Section 52.19(c)(3)(ii) to Reflect the Exhaust of the 847 NPA, the
    First of the Five Area Codes in the Chicago Metropolitan Area to
    Reach Exhaust* (filed Jan. 31, 2001).

[^7]: *Expedited Petition of the Illinois Commerce Commission to Reset
    the Mandatory Expiration Date of Its Temporary Waiver of 47 CFR
    Section 52.19(c)(3)(ii) to Reflect the Exhaust of the 847 NPA, the
    First of Five Area Codes in the Chicago Metropolitan Area to Reach
    Exhaust*, Order, 16 FCC Rcd 7511 (2001).

[^8]: *Id.* at 7512-13.

[^9]: *Amended Citizens Utility Board Petition for Expedited Permanent
    Waiver of 47 CFR § 52.19(c)(3)(ii)* (dated Oct. 1, 2001, filed Oct.
    4, 2001) (CUB Petition). The petition was placed on Public Notice on
    December 13, 2001, with comments due on December 28, 2001 and reply
    comments due on January 7, 2001. *See* *Common Carrier Bureau Seeks
    Comment on the Amended Citizens Utility Board Petition for Expedited
    Permanent Waiver of 47 C.F.R. § 52.19(c)(3)(ii),* CC Docket No.
    96-98, Public Notice (rel. Dec. 13, 2001). This petition will be
    addressed in a separate order.

[^10]: *See* CUB Motion for Stay. Both the CUB Petition and the CUB
    motion for stay were initially filed on September 27, 2001. On
    October 4, 2001, the CUB filed amended versions of both documents
    correcting several dates which were inadvertently mistyped.

[^11]: *See* 47 C.F.R. § 52.19(c)(3)(ii). The Commission's rules state
    that a new area code may be introduced through the use of an area
    code overlay, which occurs when a new area code is introduced to
    serve the same geographic area as an existing area code, and that no
    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 code.

[^12]: CUB Motion for Stay at 1.

[^13]: *See Loral Orion Services Inc.*, Order, 14 FCC Rcd 18,878, 18,879
    (1999), *citing* Virginia *Petroleum Jobbers Associations v. FPC*,
    259 F.2d 921, 935 (D.C. Cir. 1958); *Washington Metropolitan Area
    Transit Commission v. Holiday Tours, Inc.*, 559 F.2d 841, 843 (D.C.
    Cir 1977).

[^14]: *Id*. at 2.

[^15]: *Id*. The CUB also states that this burden is neither
    technologically required, nor is it required to prevent any
    anticompetitive impacts of the new area code.

[^16]: *Id*.

[^17]: *See* CUB Petition.

[^18]: For example, the Common Carrier Bureau has rejected arguments
    that an overlay implemented without ten-digit dialing would not
    impede competition. *See, e.g., New York Department of Public
    Service Petition for Expedited Waiver of 47 C.F.R. Section
    52.19(c)(3)(ii)*, Order*,* 13 FCC Rcd 13,491, 13,494-98 (1998); *see
    also First Waiver Order*, 15 FCC Rcd at 4636 (stating that the
    purpose of requiring ten-digit dialing with overlays is to ensure
    that competition is not deterred as a result of local dialing
    disparity).

[^19]: The Commission's ability to require ten-digit dialing with area
    code overlays was confirmed by a recent Circuit Court decision.
    *See* *People of the State of New York & Public Service Commission
    of the State of New York v. FCC*, 267 F.3d 91, 103-06, 109 (2nd Cir.
    2001).

[^20]: We note that, despite the CUB's contention that numbers in the
    847 NPA are plentiful, the North American Numbering Plan
    Administrator indicates that the first numbers in the 224 NPA were
    assigned on September 14, 2001 and were scheduled to be effective on
    December 13, 2001. CUB Motion for Stay at 2.

[^21]: In the *Local Competition Second Report and Order*, for example,
    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. *Local
    Competition Second Report and Order*, 11 FCC Rcd at 19518-19.