Federal Communications Commission

Washington, D.C. 20554

Released: September 17, 2001

NSD File No. L-01-141

NSD File No. L-01-146

CC Docket No. 99-200

September 14, 2001

William S. Carnell

Latham & Watkins

555 11^th^ Street NW

Washington, DC 20004-1304

> Re: Leap Wireless International, Inc. Request for Waiver of Numbering
> Resource Utilization Threshold Requirement of Commission Rule
> 52.12(h); Leap Wireless International, Inc. Request for Emergency
> Assignment of Three NXX Codes in the 412 NPA and Request for
> Confidentiality

Dear Mr. Carnell:

This letter addresses the petitions[^1] filed by Leap Wireless
International, Inc. (Leap) seeking waiver of section 52.15(h) of the
Federal Communications Commission's (Commission's) rules, which requires
carriers to meet a 60% utilization threshold before obtaining additional
numbering resources in a given rate center.[^2] Specifically, Leap
requests three growth central office (CO) codes in each of the 602 and
480 area codes in Phoenix, Arizona, and three growth CO codes in the 412
area code in Pittsburgh, Pennsylvania. As discussed below, we grant, in
part, Leap's request for the Phoenix area. We, however, decline to grant
Leap's request for the Pittsburgh area.

According to Leap, its Cricket "Comfortable Wireless" service offers
consumers flat-rate fixed wireless service.[^3] Leap asserts that the
high demand for this service allows it to reach the 60% utilization
threshold very soon after the service is launched but not in sufficient
time to apply for and activate additional numbering resources.[^4] Leap
therefore requests a waiver of the utilization threshold requirement to
prevent an interruption of service in the Phoenix and Pittsburgh areas.

[Phoenix.]{.underline} Leap reports that it launched service in the
Phoenix market on August 9, 2001.[^5] Based on its past market
penetration levels, it expects to reach 60% utilization in Phoenix
within seven weeks of launch and expects to exhaust its initial CO codes
within ten weeks of launch.[^6] As a result, Leap expects to have
exhausted its numbering resources, and therefore become unable to
activate new customers, for approximately three weeks before additional
numbering resources can be activated.[^7]

The Commission has plenary jurisdiction over those portions of the North
American Numbering Plan that pertain to the United States.[^8] Section
1.3 of the Commission's rules authorizes the Commission to suspend,
revoke, amend, or waive its rules for good cause shown.[^9] In
demonstrating good cause, an applicant for a waiver "faces a high hurdle
even at the starting gate."[^10] Moreover, the Commission must in its
decision "explain why deviation \[from its rules\] better serves the
public interest."[^11]

We have reviewed Leap's petition and find that, based on its successful
launch of Cricket service in similar markets, Leap has adequately
demonstrated that it will likely run out of numbering resources before
it can secure additional numbering resources in the absence of a waiver
of our rules. We thus find that Leap has shown good cause for a waiver
of the requirement to meet the 60% utilization threshold prior to
receiving additional numbering resources in its Phoenix market. We
further find that it is in the public interest to grant the requested
waiver in the Phoenix market, where there is no apparent shortage of
numbering resources, because of the demonstrated consumer demand for
Leap's Cricket service. Therefore, by copy of this letter, we direct the
North American Numbering Plan Administrator to assign and release to
Leap two CO codes in each of the 602 and 480 area codes.

This limited waiver of the utilization threshold is for the sole purpose
of allowing Leap to continue to provide service in the 602 and 480 area
codes. Leap will be required to meet the utilization threshold before
receiving additional numbering resources in the Phoenix market. We
decline to grant Leap three CO codes in each of the 602 and 480 area
codes as requested because we believe that with a total inventory of
130,000 numbers in the Phoenix market,[^12] Leap should be able to meet
the 60% utilization threshold prior to needing additional numbering
resources to serve its customers (at which time it may seek additional
numbering resources through the normal CO code application process). If
Leap should find that it needs additional numbering resources prior to
satisfying the 60% utilization threshold and can demonstrate that it
will run out of numbering resources before a growth CO code can be
activated, it should so advise the Common Carrier Bureau in writing. We
will at that time consider whether Leap is likely to meet its expected
demand such that a waiver for a third growth CO code in each of the 602
and 480 area codes is warranted.

[Pittsburgh.]{.underline} Leap requests assignment of three CO codes to
meet anticipated consumer demand in its Pittsburgh market. Leap was
assigned growth CO codes in the 412 area code in April, May, and July,
2001.[^13] According to Leap, however, it will not have enough numbering
resources to meet expected demand before all of the recently assigned CO
codes become effective.[^14]

We decline to grant the relief requested by Leap for the Pittsburgh area
at this time. The 412 area code is in jeopardy and subject to a number
conservation plan developed by the industry and adopted by the
Pennsylvania Public Utility Commission (PAPUC). As of August 31,
approximately 90 CO codes remain in the 412 area code, and are being
assigned through a lottery at the rate of six growth CO codes per
month.[^15] The Commission has delegated authority to state commissions
to determine the appropriate conservation plan for area codes that are
in jeopardy. We are therefore reluctant to alter the PAPUC's
conservation plan currently in place. We also believe that to assign
Leap additional resources ahead of other carriers that may be faced with
the same inability to serve consumers without additional numbering
resources would not be in the public interest because such relief would
be inconsistent with our goal of ensuring competitively neutral access
to numbering resources[^16] and would undermine the conservation plan
that has been established for the 412 area code. Finally, without regard
to whether Leap currently meets the 60% utilization threshold, an
assignment of additional CO codes would not afford Leap the relief it
seeks because of the approximate 66-day activation period required for
new CO codes. In fact, Leap was awarded in a recent lottery an
additional CO code that is scheduled to be assigned in September or
October 2001, and is expected to become effective approximately 50 days
after the date of assignment. Any additional assignment that we
authorize would not likely take effect sooner.

We therefore decline to disturb the PAPUC's conservation plan by
directing that Leap be assigned additional numbering resources outside
the rationing plan. We believe that Leap, with its recently assigned and
pending assignment of numbering resources in its Pittsburgh market,
should be able to meet not only customer demand but also the 60%
utilization threshold in its Pittsburgh market once the numbering
resources it has been assigned are activated.

Sincerely,

Jeffrey J. Carlisle

Senior Deputy Chief, Common Carrier Bureau

cc: Ron Conners, Director, North American Numbering Plan Administrator

[^1]: Leap Wireless International, Inc. Request for Waiver of Numbering
    Resource Utilization Threshold Requirement of Commission Rule
    52.15(h), filed July 17, 2001 (July 17 Petition); Leap Wireless
    International, Inc. Request for Emergency Assignment of Three NXX
    Codes in the 412 NPA and Request for Confidentiality, filed July 27,
    2001 (July 27 Petition).

[^2]: 47 U.S.C. § 52.15(h). The Commission established the utilization
    threshold as a mechanism to verify carriers' actual need for
    additional numbering resources.

[^3]: July 17 Petition at 3.

[^4]: *Id*. at 3-5. Since the effective date for CO code activation in
    most instances is at least 66 days after the CO code application is
    filed, carriers normally must maintain a minimum 66 day inventory;
    Leap claims it is unable to maintain the requisite inventory due to
    customer demand.

[^5]: Declaration of Matthew P. Stoiber, dated July 12, 2001, para. 2.

[^6]: July 17 Petition at 4-5.

[^7]: *Id*. at 5.

[^8]: 47 U.S.C. § 251(e).

[^9]: 47 C.F.R. § 1.3.

[^10]: *See* WAIT Radio v. FCC, 418 F.2d 1153, 1157 (D.C. Cir. 1969).

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

[^12]: Leap currently has 9 CO codes in the Phoenix market, or a total
    of 90,000 numbers. The additional 4 CO codes (40,000 numbers) will
    bring Leap's inventory to 130,000 numbers.

[^13]: July 27 Petition at 2.

[^14]: *Id*.

[^15]: We also note that the PUPUC has recently established a new
    overlay area code in the Pittsburgh area, the 878 NPA, which will
    increase the available numbering resources in the area.

[^16]: Numbering Resource Optimization*,* *Report and Order and Further
    Notice of Proposed Rulemaking*, 15 FCC Rcd 7574, 7578, para. 3
    (2000).