*Pages 1--8 from  Microsoft Word - 15847*
 Federal  Communications  Commission  FCC  02-  71 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 


 In  the  Matters  of 
 CURT  HIMMELMAN,  Petitioner, 


 v. 
 MCI  COMMUNICATIONS  CORPORATION,  Respondent. 


 YOUNG  SOON  OH  and  BERNICE  SCHATZ,  Petitioners, 
 v. 
 AT&  T  CORPORATION,  Respondent. 


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 EB-  00-  TC-  F-  003 
 EB-  00-  TC-  F-  004 
 DECLARATORY  ORDER 
 Adopted:  March  12,  2002  Released:  March  19,  2002 
 By  the  Commission: 
 I.  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 
 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). 
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 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 
 II.  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 


 III.  DISCUSSION 
 A.  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) 


 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  Commissions  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. 
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 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. 
 B.  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). 
 1.  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 


 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. 
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 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 


 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&  Ts  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. 
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 201(  b).  38 
 2.  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&  Ts  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 
 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). 
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 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 
 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. 
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 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 
 C.  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  Commissions  broad  discretion.  55 


 IV.  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  Commissions  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  Petitioners  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  Petitioners  Motion  to  Supplement  Record,  filed  by  Petitioners  Oh  and  Schatz  on  October  19,  2001,  IS  DENIED.  57 


 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  Petitioners  Motion  to  Strike  New  Assertions. 


 57  The  Petitioners  sought  to  supplement  the  record  to  refute  AT&  Ts  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. 
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 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 
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