DA 02-2199

Eric James Glazier

Cellular Directory Information, Inc.

203 N. 34th Street, Suite 517

Philadelphia, PA 19104

Dear Mr. Glazier:

This letter responds to your filing of February 20, 2002, \"Request for
Clarification & Rulemaking\" (CDI Petition).[^1] You request, on behalf
of Cellular Directory Information, Inc. (CDI), that the Commission: (1)
clarify that wireless carriers are classified as local exchange carriers
(LECs) or initiate a rulemaking to include wireless carriers as LECs for
the purpose of 47 C.F.R. § 51.217 obligations; and (2) enter a ruling
directing wireless telephone companies to provide their subscriber
records for use in a wireless directory service.[^2] We find that
Commission precedent is clear that commercial mobile radio services
(CMRS) provided by wireless carriers are not LEC offerings subject to
section 51.217 under the existing rules, and we therefore deny the CDI
Petition in part. We dismiss the CDI Petition without prejudice to the
extent it seeks a rulemaking because on the facts presented, CDI does
not appear to be eligible under 47 C.F.R. § 51.217 to request the
subscriber records that it seeks.

To the extent you seek a clarification that CMRS providers are
considered LECs for purposes of section 51.217 under the current rules,
we deny your petition. You request that the Commission clarify "whether
or not the Commission so determines that the definition of a LEC should
include a wireless provider in the context of 47 C.F.R. § 51.217,
'directory listings.'"[^3] Section 3(26) of the Communications Act of
1934 (the Act)[^4] defines a LEC as \"any person that is engaged in the
provision of telephone exchange service or exchange access. Such term
does not include a person insofar as such person is engaged in the
provision of CMRS under section 332(c), except to the extent that the
Commission finds

that such service should be included in the definition of such
term.\"[^5] The Commission has not concluded that CMRS providers or any
class of CMRS providers are LECs.[^6] Section 51.217 on its face imposes
obligations only on LECs, and does not define that term any differently
from the Act.[^7] Therefore, CMRS providers are not required to provide
nondiscriminatory access under section 51.217. We note, however, that
wireless providers of local exchange service that are not CMRS (*i.e*.,
fixed wireless) are generally subject to section 51.217(c)(3) to the
extent they have directory assistance databases or directory
listings.[^8]

In the alternative, you request that the Commission initiate a
rulemaking proceeding to bring CMRS providers under the requirements of
section 51.217. You state that CDI is "actively engaged in assembling a
wireless directory," and that "\[i\]t is imperative" that this directory
"contains the listings of all major carriers."[^9] You further state
that it would be in the public interest to have a directory of wireless
telephone numbers because current directories only list landline numbers
and because of the growth of wireless telephone numbers.[^10] However,
section 251(b)(3) of the Act, and section 51.217, which implements
section 251(b)(3), require that LECs provide nondiscriminatory access to
their directory listings and directory assistance services only to
competing providers.[^11] The term "competing providers" is defined in
section 51.217(a)(1) as providers of telephone exchange service and
telephone toll service.[^12] Moreover, requesting providers may not
publish telephone directories of listing information obtained pursuant
to section 51.217.[^13] Based on the facts before us, it does not appear
that CDI is a competing provider within the meaning of section 51.217 or
that it seeks information for a purpose permitted under section 51.217.
Therefore, we dismiss your petition for rulemaking, without prejudice to
refiling upon a showing that CDI would benefit from the relief it seeks.

In addition, only LECs that provide directory assistance service and
compile directory listings must provide access to such services and
information under section 51.217(c)(3).[^14] Indeed, based on your
statement that current directories only list landline numbers,[^15] it
appears likely that many, if not all, CMRS providers do not compile
directory listings as defined in the Commission's rules. [^16] Also, it
is not clear that the "subscriber records" CDI seeks fall within the
information included in the directory assistance and directory listings
requirements of section 51.217(c)(3). For these reasons as well, it does
not appear that CDI would benefit from the relief you request.

Accordingly, as described above, we deny the CDI Petition to the extent
it seeks a clarification of existing rules, and dismiss it without
prejudice to the extent it requests a rulemaking. We take this action
pursuant to section 4(i) of the Act and sections 0.331, 1.2, and
1.401(e) of the Commission's rules.[^17]

Sincerely,

Jeffrey S. Steinberg

Deputy Chief,

Commercial Wireless Division

Wireless Telecommunications Bureau

[^1]: Request for Clarification and Rulemaking, Cellular Directory
    Information, Inc., February 20, 2002. The CDI Petition is not
    verified as required in section 1.52 of the Commission's rules. We
    remind you that the Commission's rules require a party not
    represented by an attorney to verify pleadings. We find that waiver
    of the verification requirement of Section 1.52 is warranted in this
    case to permit consideration of the issues raised in the CDI
    Petition. 47 C.F.R. § 1.52.

[^2]: *Id*. at 1-2. *See also* Letter from Eric J. Glazier, CDI, to
    Magalie Roman Salas, Secretary, FCC, dated February 20, 2002.

[^3]: CDI Petition at 1.

[^4]: 47 U.S.C. §§ 151 *et seq.*

[^5]: ^?^ 47 U.S.C. § 153(26).

[^6]: *See* Implementation of the Local Competition Provisions in the
    Telecommunications Act of 1996, Interconnection Between Local
    Exchange Carriers and Commercial Mobile Radio Service Providers, CC
    Docket No. 95-185, First Report and Order, 11 FCC Rcd 15499,
    15995-96, ¶ 1004 (1996) (declining to classify CMRS providers as
    LECs)*.*

[^7]: *See* 47 C.F.R. § 51.217(a)(3) (definition of "providing local
    exchange carrier").

[^8]: A "commercial mobile service" is "any mobile service (as defined
    in section 3) that is provided for profit and makes interconnected
    service available (A) to the public or (B) to such classes of
    eligible users as to be effectively available to a substantial
    portion of the public." 47 U.S.C § 332(d)(1); *see also* 47 C.F.R. §
    20.3 (defining CMRS).

[^9]: CDI Petition at 1.

[^10]: *Id*. at 1-2.

[^11]: 47 C.F.R. § 51.217(c)(3); *see also* 47 U.S.C. § 251(b)(3).

[^12]: 47 C.F.R. § 51.217(a)(1). The Commission has clarified that this
    definition includes certified competitive LECs and providers of call
    completion service, and that agents of competing providers may also
    obtain access pursuant to section 251(b)(3). *See* Provision of
    Directory Listing Information under the Telecommunications Act of
    1934, as Amended, First Report and Order, CC Docket. 99-273, 16 FCC
    Rcd 2736, 2743-2750, ¶¶ 13-29 (2001) (*SLI/DA First Report and
    Order)*.

[^13]: Implementation of the Telecommunications Act of 1996:
    Telecommunications Carriers\' Use of Customer Proprietary Network
    Information and Other Customer Information, Implementation of the
    Local Competition Provisions of the Telecommunications Act of 1996,
    Provision of Directory Listing Information under the
    Telecommunications Act of 1934, As Amended, CC Docket Nos. 96-115,
    96-98, 99-273, Third Report and Order, Second Order on
    Reconsideration, and Notice of Proposed Rulemaking, 14 FCC Rcd
    15550, 15615, ¶ 124 (1999) (*SLI/DA Order and Notice*).

[^14]: ^?^ 47 C.F.R. § 51.217(c)(3)(i),(ii).

[^15]: CDI Petition at 2.

[^16]: ^?^ Section 51.5 defines directory listings as any information:
    (1) identifying the listed names of subscribers of a
    telecommunications carrier and such subscriber's telephone numbers,
    addresses, or primary advertising classifications (as such
    classifications are assigned at the time of the establishment of
    such service), or any combination of such listed names, numbers,
    addresses or classifications; and (2) that the telecommunications
    carrier or an affiliate has published, caused to be published, or
    accepted for publication in any directory format. 47 C.F.R. § 51.5.

[^17]: ^?^ 47 U.S.C. § 4(i); 47 C.F.R. §§ 0.331, 1.2, 1.401(e).