20534 Federal Register / Vol. 63, No. 80 / Monday, April 27, 1998 /Rules and Regulations

levels of government. Therefore, in

accordance with Executive Order 12612,

it is determined that this rule does not

have sufficient federalism implications

to warrant the preparation of a

Federalism Assessment.

This rule is not a major rule as

defined by section 804 of the Small

Business Regulatory Enforcement Act of

1996. This rule will not result in an

annual effect on the economy of $100

million or more; a major increase in

costs or prices; or significant adverse

effects on competition, employment,

investment, productivity, innovation, or

on the ability of United States-based

companies to compete with foreignbased companies in domestic and

export markets.

List of Subjects in 28 CFR Part 0

Authority delegations (Government

agencies), Government employees,

Organization and functions

(Government agencies), Prisoners,

Whistleblowing.

For the reasons stated in the

preamble, Title 28, Part 0, Subpart K of

the Code of Federal Regulations is

amended as follows:

PART 0—[AMENDED]

1. The authority citation for Part 0

continues to read as follows:

Authority: 5 U.S.C. 301; 28 U.S.C. 509,

510, 515–519.

2. Section 0.64–2 is amended as

follows:

a. The phrase ‘‘Public Law 95–44’’ is

removed and the phrase ‘‘Public Law

95–144’’ is inserted in its place;

b. The final sentence is revised to read

as follows:

§ 0.64–2 Delegation respecting transfer of

offenders to or from foreign countries.

* * * The Assistant Attorney General

in charge of the Criminal Division is

authorized to redelegate this authority

to his Deputy Assistant Attorneys

General, the Director of the Office of

Enforcement Operations, and the Senior

Associate Director and Associate

Directors of the Office of Enforcement

Operations.

Dated: April 15, 1998.

Janet Reno,

Attorney General.

[FR Doc. 98–10832 Filed 4–24–98; 8:45 am]

BILLING CODE 4410–01–M

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 69

[CC Docket 96–128; DA 98–481]

Implementation of the Pay Telephone

Reclassification and Compensation

Provisions of the Telecommunications

Act of 1996

AGENCY: Federal Communications

Commission.

ACTION: Final rule; clarification and

waivers.

SUMMARY: The Common Carrier Bureau

adopted a Memorandum Opinion and

Order, which clarifies the requirements

for the provision of payphone-specific

coding digits by local exchange carriers

(LECs) and payphone service providers

(PSPs) to interexchange carriers (IXCs).

The order also clarifies that automatic

number identification indicators (‘‘ANI

ii’’) and flexible automatic numbering

identification (‘‘FLEX ANI’’), are the

methods to provide payphone-specific

coding digits that comply with the

requirements of the Payphone Orders. In

addition, the order clarifies the tariff

requirements that LECs must file

pursuant to the Payphone Orders. The

order also grants a waiver of part 69 of

the Commission’s rules so that LECs can

establish rate elements to recover the

costs of implementing FLEX ANI to

provide payphone-specific coding digits

for per-call compensation. Additionally,

this order provides limited waivers to

LECs, PSPs, and IXCs, when

appropriate, to facilitate the

implementation of per call

compensation.

DATES: Effective March 9, 1998.

FOR FURTHER INFORMATION CONTACT: Rose

Crellin, Formal Complaints and

Information Branch, Enforcement

Division, Common Carrier Bureau (202)

418–0960.

SUPPLEMENTARY INFORMATION: This is a

summary of the Bureau’s Memorandum

Opinion and Order in CC Docket No.

96–128 [DA 98–481], adopted on March

9, 1998, and released on March 9, 1998.

The full text of the Memorandum

Opinion and Order (‘‘Order’’) is

available for inspection and copying

during normal business hours in the

FCC Reference Center, Room 239, 1919

M Street, N.W., Washington, D.C. The

complete text of this decision also may

be purchased from the Commission’s

duplicating contractor, International

Transcription Services, 1231 20th

Street, N.W., Washington, D.C. 20036.

Paperwork Reduction Act

The Federal Communications

Commission has received Office of

Management and Budget (OMB)

approval for the following public

information collections contained in the

Order pursuant to the Paperwork

Reduction Act of 1995, Public Law 104–

13. An agency may not conduct or

sponsor and a person is not required to

respond to a collection of information

unless it displays a currently valid

control number.

OMB Control Number: 3060–0823.

Expiration Date: 09/30/98.

Title: Pay Telephone Reclassification

Memorandum Opinion and Order, CC

Docket No. 96–128.

Form No.: N/A.

Respondents: Business or other forprofit entities.

Information collection requirement

No. of respondents

(approximately)

Est. time per

response

(hours)

Total annual

burden

a. LEC Tariff To Provide FLEX ANI to IXCs ................................................................................ 400 35 14,000

b. LEC Tariff To Recover Costs ................................................................................................... 400 35 14,000

c. LECS Must Provide IXCs on Payphones that Provide Payphone specific Coding Digits ...... 400 24 9,600

d. LECs must Provide IXCs and PSPs Information on where FLEX ANI is Available Now and

When it is to be Scheduled in the Future ................................................................................ 400 16 6,400

e. Waiver; LECs to Provide Cost Analysis Upon Request .......................................................... 20 35 700

Total Annual Burden: 44,700 Hours.

Estimated Annual Reporting and

Recordkeeping cost Burden: $0.

Needs and Uses: In the MO&O, the

Bureau clarifies and provides waivers of

requirements established in the

Payphone Orders for the provision of

payphone-specific coding digits by LECs

and PSPs, to IXCs, beginning October 7,

1997. The information disclosure rules

and policies governing the payphone

industry to implement Section 276 of

the Act will ensure the payment per-call
Federal Register / Vol. 63, No. 80 / Monday, April 27, 1998 /Rules and Regulations 20535

1 Implementation of the Pay Telephone

Reclassification and Compensation Provisions of

the Telecommunications Act of 1996, CC Docket

No. 96–128, Report and Order, 61 FR 52307 (Oct.

7, 1996), 11 FCC Rcd 20,541 (1996) (‘‘Report and

Order’’); Order on Reconsideration, 61 FR 65341

(Dec. 12, 1996), 11 FCC Rcd 21,233 (1996) (‘‘Order

on Reconsideration’’) (together the ‘‘Payphone

Orders’’). The Payphone Orders were affirmed in

part and vacated in part. See Illinois Public

Telecomm. Ass’n v. FCC, 117 F.3d 555 (D.C. Cir.

1997) (‘‘Illinois Public Telecomm.’’). See also

Second Report and Order, 62 FR 58659 (Oct. 30,

1997), CC Docket No. 96–128, FCC 97–371 (rel. Oct.

9, 1997) (‘‘Second Report and Order’’), pets. for

recon. pending, review pending, MCI Telecomm.

Corp. v. FCC, D.C. Circuit No. 97–1675 (filed Nov.

7, 1997); Sprint Corp. v. FCC, D.C. Circuit No. 97–

1685 (filed Nov. 13, 1997); Personal

Communications Industry Association v. FCC, D.C.

Circuit No. 97–1709 (filed Dec. 1, 1997); Illinois

Public Telecommunications Association v. FCC,

D.C. Circuit No. 97–1713 (filed Dec. 3, 1997). In the

Payphone Orders, the Commission adopted new

rules and policies governing the payphone industry

to implement Section 276 of the Communications

Act of 1934, as amended, (‘‘the Act’’).

2Payphone-specific coding digits provide a

method for LECs to transmit, with the automatic

number identification (ANI), information (coding

number or digits) identifying a call as having been

placed specifically from a payphone. See Order on

Reconsideration, 61 FR 65341 (Dec. 12, 1996), 11

FCC Rcd at 21,265–66, para. 64.

3For purposes of paying compensation for

compensable calls and other associated obligations,

such as tracking calls, we note that the term ‘‘IXC’’

includes a LEC when it provides interstate,

intraLATA toll service. See Report and Order, 61 FR

52307 (Oct. 7, 1996), 11 FCC Rcd at 20,584, para.

83 n.293.

4FLEX ANI permits the association of additional

digits with specific calling party classes of service

(e.g. coin phone, hotel/motel, and prison service).

FLEX ANI information digits provide information

along with the calling party’s directory number,

which is useful for billing and paying

compensation. FLEX ANI coding digits are

transmitted as part of the ANI signaling sequence

and are used by the receiving switch to identify the

type of originating line or the type of call being

made. ‘‘Open Network Architecture User’s Guide,’’

June 1996 at 92.

5 ANI ii as currently deployed by the LECs does

not provide all the payphone-specific coding digits

necessary to identify payphones for payphone

compensation. Pursuant to the waivers provided in

the Bureau Waiver Order and this order, ANI ii can

be used to provide the ‘‘27’’ payphone-specific

coding digit until either additional ANI ii codes are

hardcoded or FLEX ANI is implemented in a

switch. Based on the record before us regarding the

additional costs and time it would require to

hardcode additional ANI ii digits to provide all of

the payphone-specific coding digits necessary for

per-call compensation, we clarify in this order that

the transmission of payphone-specific coding digits

by LECs through FLEX ANI is required unless a LEC

hardcodes into all of its switches all the payphonespecific coding digits discussed herein as necessary

for identifying payphones calls for per-call

compensation. Accordingly, we do not require the

hardcoding of these additional ANI ii digits by

LECs, although this is an approach that might be

used by some LECs, in lieu of FLEX ANI, to

transmit payphone-specific coding digits to satisfy

their transmission obligations under the Payphone

Orders. See Order paras. 23–25. Where a LEC

chooses to employ hardcoding to provide

payphone-specific coding digits and to recover the

incremental costs from PSPs, as provided in this

order, we assume that LEC would file an

appropriate tariff as provided in other parts of this

order.

compensation by implementing a

method for LECs to provide information

to IXCs to identify calls, for each and

every call made from a payphone. The

Bureau has reviewed several methods of

identifying payphone calls and has

determined that among them, FLEX ANI

is the most flexible and has the added

capability of providing a number of

additional coding digits, in real-time,

that can uniquely identify a call as

coming from a payphone. Obligation to

respond: Required. Public reporting

burden for the collections of

information is as noted above. Send

comments regarding the burden

estimate or any other aspect of the

collections of information, including

suggestions for reducing the burden to

Performance Evaluation and Records

Management, Washington, D.C. 20554.

Summary of Memorandum Opinion

and Order

1. In the order, the Bureau clarifies

and waives certain requirements

established in the Payphone Orders 1

regarding payphone-specific coding

digits 2 to facilitate the transition for

local exchange carriers (‘‘LECs’’),

payphone service providers (‘‘PSPs’’)

and interexchange carriers (‘‘IXCs’’) 3 to

provide and receive payphone-specific

coding digits to identify calls from

payphones to pay payphone

compensation for subscriber 800 and

access code calls. In doing so, the

Bureau concludes that the waivers

granted therein to ensure the orderly

transition for the requirements

established in the Payphone Orders to

implement Section 276 of the

Communications Act of 1934, as

amended by the Telecommunications

Act of 1996 (‘‘1996 Act’’), are in the

public interest. The Bureau finds that

the waivers granted therein reflect the

transitional ‘‘default per-call rate’’

period established by the Commission

in the Payphone Orders and extended in

the Second Report and Order. In the

Order, the Bureau notes that almost

80% of payphones are expected to

provide payphone-specific coding digits

by March 9, 1998, and the number of

payphone digits for which payphonespecific coding digits are available will

continue to increase over the next few

months as technical problems are

overcome by LECs.

2. In the Order, the Bureau clarifies

requirements established in the

Payphone Orders for the provision of

payphone-specific coding digits by LECs

and PSPs, to IXCs beginning October 7,

1997. Specifically, the Order explains

that automatic number information

indicators (‘‘ANI ii’’) and flexible

automatic numbering identification

(‘‘FLEX ANI’’) 4 are the methods that

LECs can use to provide payphonespecific coding digits that comply with

the requirements of the Payphone

Orders. 5 The Order concludes that all

LECs must implement FLEX ANI to

comply with the requirements of the

Payphone Orders subject to the limited

waivers granted in the Order. (i) In

concluding that hardcoding ANI ii

payphone-specific coding digits and

FLEX ANI, not line information

database (LIDB), are the only

approaches that comply with the

requirements of the Payphone Orders

for the provision of payphone-specific

coding digits, the Bureau, in the Order,

rejects the claim that LIDB also

complies with those requirements

because the implementation of FLEX

ANI is too costly for LECs. In the Order,

the Bureau explains that the

mechanisms established by the

Commission in the Payphone Orders

and the Second Report and Order, as

well as the waivers granted therein

respond to those concerns.

3. The Order also clarifies the

requirement to transmit payphonespecific coding digits applies only to

payphone service provided by LECs to

dumb, smart, and inmate payphones. It

does not apply to any other LEC

provided service such as business lines,

PBX, or Centrex lines to which a

payphone may be connected.

4. In the Bureau Waiver Order, the

Bureau stated that payphones appearing

on the LEC-provided lists of payphones

(LEC ANI lists) will be eligible for percall compensation even if they do not

transmit payphone-specific coding

digits. Although payphones on the LEC

ANI lists are eligible for per-call

compensation during the waiver period

of the Bureau Waiver Order, and this

Order, to ensure an orderly transition to

the provision of FLEX ANI for all

payphones on LEC payphone service

lines, not just any LEC service line, PSP

payphones must be on LEC payphones

lines within 30 days of the release of

this order to continue to be eligible for

per-call compensation, even if the PSP

payphones are on the LEC ANI lists.

5. In response to the concerns raised

by LECs, PSPs, and IXCs, the Order

further clarifies the tariffing

requirements for the provision of

payphone-specific coding digits

established in the Payphone Orders. The

Order on Reconsideration required that

LECs ‘‘must make available to PSPs, on

a tariffed basis, such coding digits as
20536 Federal Register / Vol. 63, No. 80 / Monday, April 27, 1998 /Rules and Regulations

12The Bureau Waiver Order extended that period

for LECs that were unable to provide coding digits

until March 9, 1998. 62 FR 58659 (October 30,

1997), 12 FCC Rcd at 16,387, para. 1.

13 Implementation of the Pay Telephone

Reclassification and Compensation Provisions of

the Telecommunications Act of 1996, 62 FR 60034

(November 6, 1997), CC Docket No. 96–128, Order,

12 FCC Rcd 16,387 (Common Carrier Bureau 1997)

(Bureau Waiver Order).

part of the ANI for each payphone.’’ 12

In the Second Report and Order, the

Commission included the estimated cost

of providing coding digits in the per-call

default compensation rate to be paid by

IXCs to PSPs for subscriber 800 and

access code calls. To comply with the

requirements of the Payphone Orders,

LECs must provide FLEX ANI to IXCs

through their interstate tariffs, so that

IXCs can identify which calls come from

payphones. The LEC Coalition, Bell

South, and Bell Atlantic have proposed

that LECs modify their interstate access

tariffs to provide that IXCs may request

FLEX ANI without charge if it is for the

purpose of complying with the per-call

compensation requirements of the

Payphone Orders. The LEC Coalition

also proposes that LECs recover the

costs of providing FLEX ANI to IXCs for

payphone compensation from PSPs

through a new federal rate element to be

applied to all payphone lines on a

nondiscriminatory basis. That proposed

rate is to be charged monthly on a perline basis until the costs for

implementation of FLEX ANI for

payphone compensation are recovered.

The Order concludes that this approach

is consistent with the tariff requirements

of the Payphone Orders.

6. PSPs will pay the costs incurred by

LECs to implement FLEX ANI for

payphone compensation through the

rate applied to all payphones by the

LECs. LECs must provide FLEX ANI to

IXCs and the IXCs are charged for this

service through the per-call payphone

compensation rate which IXCs pay to

PSPs. Thus, IXCs will not be charged

directly for this service by the LECs.

LEC FLEX ANI tariff revisions to

provide FLEX ANI to IXCs must be filed

no later than March 31, 1998, with a

scheduled effective date of April 15,

1998, if a LEC is able to provide FLEX

ANI to 25% or more of the smart

payphones in its service area.

Thereafter, within the waiver period

granted in this order, a LEC must file its

FLEX ANI tariff to provide FLEX ANI to

IXCs no later than when it is able to

provide FLEX ANI to 25% or more of

the smart payphones in its service area.

After filing the FLEX ANI tariff, LECs

will continue to make FLEX ANI

available as each end office becomes

FLEX ANI capable.

7. Beginning March 27, 1998, until a

LEC has implemented FLEX ANI for all

payphones it serves, it must provide

monthly to IXCs and PSPs, upon

request, information on: (1) End offices

where FLEX ANI is available; and (2)

proposed dates for the availability of

FLEX ANI by end office for all areas

where it is not yet available. Beginning

March 27, 1998, all LECs must provide

on a monthly basis to IXCs, upon

request: (1) The number of smart and

the number of dumb payphones that are

owned by the LEC PSP and independent

PSPs in the LEC service area; and (2) the

ANI for smart payphones and the ANI

for dumb payphones owned by the LEC

and independent PSPs that are

providing payphone-specific coding

digits and those that are not providing

payphone specific coding digits in the

LEC service area. Because many LECs

have reported technical problems in

transmitting payphone-specific coding

digits even when FLEX ANI is available

for a payphone, we require that in these

two reports required herein, that LECs

indicate which end offices and

payphone ANI’s are ‘‘coding-digitcapable.’’ A payphone is ‘‘coding-digitcapable’’ when it is able to transmit

payphone-specific coding digits that are

capable of reaching an IXC point of

presence (POP) for subscriber 800 and

access code calls from payphones using

10XXX and 101XXXX. LECs may

provide these reports earlier and LECs

do not have to provide this information

to an IXC that indicates that it does not

require this information to pay per-call

compensation.

8. The Bureau required in the Bureau

Waiver Order, and the Order requires

therein, that LECs and PSPs must

transmit payphone-specific coding

digits as soon as they are technically

capable, and no later than the waivers

they have been granted. The Order

notes, however, that IXCs must request,

test, and coordinate with LECs to obtain

this service under carrier to carrier

procedures to ensure that there are no

problems in providing and receiving the

FLEX ANI digits for a particular IXC or

LEC. The Bureau notes, however, that

LECs will reduce the burden on IXCs of

requesting FLEX ANI by simplifying the

service request process. While PSPs are

obligated, pursuant to the Payphone

Orders, to compensate LECs for coding

of the PSPs payphone lines for the

transmission from the PSPs payphones

of payphone-specific coding digits

through LEC tariffed payphone services,

PSPs are not required to request the LEC

payphone-specific coding digits

transmission service to IXCs.

9. LEC tariffs to recover the costs of

implementing FLEX ANI from PSPs

must be filed no later than 30 days after

full implementation of FLEX ANI. The

costs of implementing FLEX ANI can

include, for example, generic upgrades

excluding the costs of other software

features, loading the software, paying a

fee for usage of the software,

translations and conditioning the trunks

for each end office. These costs will be

distributed over a reasonable period and

be paid by all PSPs. Under § 69.4(g) of

the Commission’s Rules, 47 CFR 69.4(g),

a LEC subject to price cap regulation

may establish a switched access rate

element for a new interstate service

upon approval of a petition

demonstrating that establishment of the

new rate element would be in the public

interest. Because Part 69 authorizes only

a limited number of rate elements, a

non-price cap LEC must still obtain a

waiver of that Part to establish any rate

element for a new interstate service. The

Order grants a blanket waiver of Part

69.4(b) and (c) of the Commission’s

rules to enable those LECs to establish

an appropriate new rate element in their

interstate tariffs that reflects the

incremental costs directly attributable to

the implementation of FLEX ANI to

transmit payphone-specific coding

digits for the purposes of payphone

compensation as described elsewhere in

the Order and to file the necessary

revisions to their interstate tariffs.

Second, the Order grants to those price

cap LECs that must secure it, blanket

permission under Part 69.4(g) of the

Commission’s rules to establish a new

rate element in their interstate tariffs

that reflects those same incremental

costs and to file the necessary revisions

to their tariffs.

10. The Bureau also affirms its grant

in the Bureau Waiver Order,13 on its

own motion, of a limited waiver of five

months, until March 9, 1998, to those

LECs and PSPs who assert that they

cannot provide payphone-specific

coding digits as required by the

Payphone Orders.

11. The Bureau also grants in part the

requests of USTA, TDS, and the LEC

Coalition. USTA requested that LECs

with digital, equal-access switches be

given an additional nine months to

provide the technology required to

supply and accommodate the coding

digits; that LECs with non-equal-access

switches be exempt from providing

payphone identification information

until their switches are replaced or

upgraded for equal-access; and that

LECs be permitted to use whatever

technology they select for digital, equalaccess switches to provide information

that will permit IXCs to track payphone

calls in order to compensate PSPs. The
Federal Register / Vol. 63, No. 80 / Monday, April 27, 1998 /Rules and Regulations 20537

14 In making this evaluation, LECs should not

include costs for switch replacements. Below, we

grant a waiver for non-equal access switches until

they are upgraded to equal access or replaced. If a

switch is replaced, however, the costs incurred in

implementing FLEX ANI can be included. This

limited waiver for small and midsize LECs that are

not able to recover their costs of implementing

FLEX ANI over up to a 10 year period is not

available to price cap, CLASS A, and Tier 1 LECs.

In 1996, the Class A LECs included all price cap

LECs. .

15 In the Second Report and Order the

Commission concluded that the average per line

cost was 7 cents per call times an average of 542

calls resulting in an average per line rate of $38.90.

Id. at para. 102. We conclude that up to a ten year

recovery period to implement FLEX ANI would not

be unreasonable for this limited waiver for small

and midsize LECs to recover their costs.

16This waiver for non-equal access switches also

covers switches that employ Bell I signaling. Bell

I signaling must be used with non-equal access

switches and uses a single information digit to

identify classes of service. This type of signaling is

not compatible with ANI ii coding digits.

LEC Coalition requested that the

Commission waive the October 7, 1997

deadline, stating that LECs would be

unable to supply forty percent of

payphone lines with the requisite

coding digits by that date. The LEC

Coalition requests a waiver of the

payphone-specific coding digit

requirements until the Commission

clarifies the coding digit requirement.

The LEC Coalition states that

implementation of FLEX ANI requires

loading of the software in switches that

do not have it, provisioning,

translations, and trunk conditioning.

The LEC Coalition also indicates that

LECs must test FLEX ANI with IXCs that

wish to receive it and ensure proper

functioning so that calls are not

dropped. TDS, an owner of local

exchange carriers, petitioned the

Commission to extend the deadline for

payphone-specific coding digits from

October 7, 1997, until July 1, 1998 and

to use LIDB. TDS states that it needs

additional time to arrange agreements

with database suppliers, and to

complete transmission tests to IXCs

selected by its subsidiaries.

12. All of the BOCs have indicated

problems in implementing FLEX ANI,

because of problems, for example, with

software upgrades, certain switch types,

and network configurations that

required heavy vendor software

development and network

reconfiguration, and therefore, argue

that they need additional time to

implement FLEX ANI. The Order

concludes that the LEC Coalition has

shown that limited waivers are justified

to allow for additional time to

implement FLEX ANI. In the Order, the

Bureau grants Bell Atlantic, SBC,

Ameritech, and BellSouth no more than

a 90 day waiver to resolve technical and

other implementation problems with

specific switch types and some call

types. In addition, the Order grants US

West a waiver to provide payphonespecific coding digits until June 30,

1998, to be able to provide FLEX ANI

for 90 percent of the smart payphones

in its service area and until December

31, 1998, to complete FLEX ANI

implementation. With regard to all other

LECs that may require additional time to

implement FLEX ANI, including GTE

and SNET, the Order grants each LEC a

waiver until no later than September 30,

1998, to be able to provide FLEX ANI

for 75 percent of the smart payphones

in its service area and until December

31, 1998, to complete FLEX ANI

implementation to be able to provide

payphone-specific coding digits, subject

to any additional waivers for which they

may qualify as discussed in the Order.

Those LECs and PSPs that are able to

transmit the required coding digits by

March 9, 1998, remain obligated to do

so. Similarly, all LECs and PSPs are

obligated to transmit the required

coding digits as soon as they are

technically capable, but in any event no

later than the end of the waiver period

for which they are eligible pursuant to

this order.

13. The Order requires that LECs that

have been granted a waiver for

additional time beyond March 9, 1998,

to implement FLEX ANI, must

implement FLEX ANI first in locations

where there are larger numbers of

payphones owned by independent PSPs

for which payphone-specific coding

digits are not available.

14. The Order grants small and

midsize LECs an extension to

implement FLEX ANI until September

30, 1998, to be able to provide

payphone-specific coding digits through

FLEX ANI to 75 percent of the smart

payphones in its service area and until

no later than December 31, 1998, to

complete FLEX ANI implementation.

The Order grants a limited waiver to

midsize and small LECs where a LEC is

unable to recover its costs, through a

monthly charge for no longer than a 10

year period, from all payphones in its

serving area.14 This waiver is

specifically granted for small and

midsize LECs for which the cost of

implementing FLEX ANI would be

unreasonably burdensome, despite

provisions in the Order for cost

recovery. The LEC is required to use the

analysis set forth in the Order to

determine whether it qualifies for the

waiver. The LEC must perform the

analysis on an annual basis. The LEC

may assume that the payphone rate

element established to recover the cost

over a period not greater than 10 years

would not be greater than 20% of the

national average payphone line cost of

$38.90,15 or $7.78 per line per month.

LECs must make this evaluation and

qualify for this waiver individually and

not as part of a holding company. LECs

must make this evaluation within 30

days of the release of this order, and

notify IXCs, upon request, that they will

not be implementing FLEX ANI

pursuant to this waiver. The Order

required that a LEC delaying the

implementation of FLEX ANI pursuant

to this waiver provision, must be

prepared to submit its analysis of cost

recovery for implementing FLEX ANI, if

the Bureau requests the analysis. The

Bureau may at such time determine

whether there continues to be a

justification to grant a waiver to that

LEC because it is unable to recover its

cost of implementing FLEX ANI.

15. The Order grants LECs a waiver of

the payphone-specific coding digit

requirement through FLEX ANI for nonequal access switches until such

switches are either upgraded to equal

access or replaced.16 In the Order, the

Bureau concludes that USTA has shown

special circumstances with regard to

non-equal access switches and switches

with Bell I signalling, because LECs are

not able to implement FLEX ANI in

those switches at reasonable costs. The

Bureau concludes that it would not be

in the public interest to require the

replacement of these switches with the

expenditure of substantial investment

solely for the provision of payphonespecific coding digits. When LECs

replace or upgrade these switches,

however, the Order requires that FLEX

ANI be implemented within 60 days

unless they qualify for another waiver

discussed herein. LECs with non-equal

access switches must provide

information as required above regarding

payphones in their service areas.

16. In the Order, the bureau denies

TDS’s request that it be allowed to

implement LIDB to comply with the

payphone-specific coding digits

requirement. TDS is eligible, however,

for one or more of the waivers described

above.

17. Some LECs indicate that it would

be costly to implement FLEX ANI now

for switches that they plan to replace in

the near future. The Order concludes

that it is not cost effective to require

LECs to implement FLEX ANI in

switches that are going to be replaced

before October 6, 1999, the end of the

default compensation period.

Accordingly, the Order grants LECs that

plan to replace switches before October

6, 1999, a waiver until that date to
20538 Federal Register / Vol. 63, No. 80 / Monday, April 27, 1998 /Rules and Regulations

provide FLEX ANI through those

switches.

18. SBC, BellSouth, Ameritech, SNET,

and Bell Atlantic have requested

additional time to implement FLEX ANI

to resolve specific problems with certain

switches and call types, and request

waivers because there are technical

limitations in passing FLEX ANI

payphone-specific coding digits on

certain types of calls and switches, and

the modifications cannot be completed

by March 9, 1998.

19. The Order grants BOCs 90 days to

resolve technical problems in

implementing FLEX ANI. BOCs must

provide payphone-specific coding digits

earlier than the end of the waiver period

for each technical problem, if these

problems are resolved earlier than the

end of the waiver period granted. BOCs

must notify IXCs regarding the call and

switch problems the BOCs are having on

a monthly basis. With regard to these

technical problems, BOCs and other

LECs must notify IXCs regarding these

problems in implementing FLEX ANI.

With regard to problem (2), cited by

SBC, FGB service, the Order notes that

there is currently no standard to provide

payphone-specific coding digits and

carriers wishing to receive FLEX ANI

must take FGD service. Thus, pending

the development of standards, the Order

grants all LECs a waiver and require that

carriers taking FGB service pay PSPs

per-call compensation using ANI lists or

other means they may identify.

20. All LECs and PSPs are obligated

to transmit the required coding digits as

soon as they are technically capable, but

in any event, no later than the end of the

waiver period for which they are

eligible, pursuant to the Order. During

the period of the Bureau Waiver Order

and the waivers granted in the Orders,

the IXC obligation to pay per-call

compensation established in the

Payphone Orders remains in effect.

Neither the Bureau Waiver Order, nor

the Order, waives the per-call

compensation requirements of the

Payphone Orders and the Second Report

and Order. As required in the Bureau

Waiver Order, payphones appearing on

the LEC-provided lists of payphones are

eligible for per-call compensation even

if they do not transmit payphonespecific coding digits. As required in the

Payphone Orders and the Second Report

and Order, absent a negotiated

agreement, IXCs must pay per-call

compensation of $0.284, for all calls

they receive from payphones not

otherwise compensated. Payments must

be remitted at least on a quarterly basis.

The payment for the October 1997

through December 31, 1997 period must

be paid no later than April 1, 1998.

LECs that have certified to the IXC that

they comply with the requirements of

the Payphone Orders must receive percall compensation. The Order further

states that there likely will be some

disputes between IXCs and PSPs about

the true number of compensable calls,

but that these disputes should not be a

basis for delay of payphone

compensation payments. The Order

states that whether a retroactive

adjustment (true-up) of payphone

compensation may be necessary for the

waiver periods granted in the Bureau

Waiver Order and this order will be

addressed in a subsequent order in this

proceeding if necessary. The Order also

does not address AT&T’s request, in

response to the Bureau Waiver Order,

that it and similarly situated IXCs

receive a waiver to pay per-phone rather

than per-call compensation for

payphones that do not provide

payphone-specific coding digits.

Nonetheless, IXCs must still pay

compensation on April 1, 1998.

21. The waivers granted in the Order

are effective immediately in order to

ensure that all PSPs continue to receive

per-call compensation, as required by

the Payphone Orders. Without these

waivers, many PSPs would not receive

per-call compensation, because the

LECs servicing them are not yet able to

provide the required payphone-specific

coding digits.

22. In the Order, the Bureau rejects

the argument that IXCs should not be

required to compensate PSPs for the

costs they incur in paying LECs to

implement FLEX ANI for payphone

compensation. The Commission

concluded in the Payphone Orders that

IXCs are the primary beneficiaries of

dial-around calls and they should

perform per-call tracking and pay percall compensation. In addition, the

Commission concluded in the Second

Report and Order that the costs of

providing coding digits to IXCs is a cost

of doing business of PSPs for which

IXCs must provide compensation as part

of the per-call rate. In the Order, the

Bureau also denies USTA’s request that

the Commission must authorize full cost

recovery and additional time for LECs

that implemented LIDB for CC Docket

No. 91–35 stating that it is unclear what

additional costs would have been

incurred to implement LIDB to comply

with the payphone-specific coding digit

requirement of the Payphone Orders,

separate from those incurred for CC

Docket No. 91–35 and that there is

insufficient information on the record to

grant the request.

23. The Order concludes as did the

Bureau Waiver Order, that it is in the

public interest for IXCs to pay payphone

compensation beginning October 7,

1997, despite the limited waivers of the

requirement to provide payphonespecific coding digits provided in the

Bureau Waiver Order and this order,

because of the clear mandate of Section

276 that PSPs be paid compensation for

each and every call. The Second Report

and Order established a default per-call

compensation rate and extended the

period of its applicability to address the

problem presented by the LECs, IXCs,

and PSPs in these waiver requests.

Pursuant to the waivers granted in the

Order, if a payphone does not provide

payphone-specific coding digits, the

default per-call rate established in the

Second Report and Order for the first

two years of per-call compensation,

$0.284 per-call, will continue to be the

per-call default rate for that payphone

until that payphone provides payphonespecific coding digits.

24. The Order also concludes that a

continuing waiver of the rule requiring

the provision of payphone-specific

digits as a prerequisite to payphone

compensation in the circumstances

identified in the payphone proceeding

will serve the public interest, because it

will allow us to move forward in

implementing the statutory requirement

that PSPs receive fair compensation for

calls placed from their phones while

continuing to progress to a market-based

structure for payphone compensation.

The Bureau stated in the Bureau Waiver

Order that the unavailability of the

payphone-specific coding digits will not

preclude IXCs from identifying

payphone calls for the purpose of

determining the number of calls for

which compensation is owed. Nor will

the waiver interfere with the payphones

that currently are able to transmit

payphone-specific coding digits.

25. The waivers the Bureau grants in

the Order to LECs and PSPs are effective

March 9, 1998, to ensure that all PSPs

continue to receive per-call

compensation after the expiration of the

waiver granted in the Bureau Waiver

Order. The immediate implementation

of these waivers is crucial to the

Commission’s efforts to ensure fair

compensation for all PSPs, encourage

the deployment of payphones, and

enhance competition among PSPs, as

mandated by Section 276 of the Act. In

the Order the Bureau grants these

waivers to all similarly situated LECs

and PSPs to avoid a significant

administrative impact and further delay

of the payment of payphone

compensation as required by Section

276.

26. In the Order, the Bureau declines

to waive the obligation of IXCs to pay

per-call compensation during the waiver
Federal Register / Vol. 63, No. 80 / Monday, April 27, 1998 /Rules and Regulations 20539

period of the Bureau Waiver Order and

the additional waivers granted within

the Order. The Payphone Orders

concluded that the primary economic

beneficiaries of a subscriber 800 and

access code call are the carriers that

carry the call. The Bureau Waiver Order

required that IXCs pay per-call

compensation during the coding digit

waiver period as required by the

Payphone Orders. During that period,

IXCs and their customers continued to

use payphones to make calls that must

be compensated pursuant to the

Payphone Orders and the Second Report

and Order. Moreover, IXCs already have

implemented surcharges for per-call

compensation and they would be

benefiting unreasonably if the Bureau

were to grant them a waiver of the

payphone compensation obligations so

that they do not have to pay per-call

compensation when payphone-specific

coding digits are not available.

27. In the Order, the Bureau denies

ITA’s petition for reconsideration of the

obligation to pay compensation during

the waiver period, and AirTouch’s

petition for waiver seeking similar

relief, both of which were filed in

response to the Bureau Waiver Order.

The Bureau also denies the requests of

ITA and AirTouch that they be granted

relief from the payment obligations of

the Payphone Order and the Second

Report and Order until they can block

calls. In denying AirTouch’s petition,

the Bureau notes that AirTouch has not

shown special circumstances or that a

waiver is in the public interest. The

Bureau also declined to reconsider, in

response to ITA’s Petition, its decision

in the Bureau Waiver Order to waive

payphone-specific coding digit

requirements while maintaining, and

not waiving, the per-call compensation

requirements during the waiver period.

28. Accordingly, pursuant to authority

contained in Sections 1, 4, 201–205,

218, 226, and 276 of the

Communications Act of 1934, as

amended, 47 U.S.C. 151, 154, 201–205,

218, 226, and 276, that the policies and

requirements set forth herein are

adopted.

29. It is further ordered that this Order

is effective immediately upon release

thereof, and that the waivers included

in this order are effective March 9, 1998.

30. It is further ordered that pursuant

to Section 203 of the Communications

Act, 47 U.S.C. 203, each of the LECs,

absent a waiver, shall FILE tariff

revisions to their interstate access tariffs

to reflect the availability of FLEX ANI

for IXCs for the purpose of payphone

compensation no later than March 31,

1998, with a scheduled effective date of

April 15, 1998, if FLEX ANI is available

for 25% or more of the smart payphones

in its service area. Thereafter, within the

waiver period it is granted in this order,

a LEC must file its tariff revision to

provide FLEX ANI to IXCs no later than

when it provides FLEX ANI to 25% or

more of the smart payphones in its

service area.

31. It is further ordered that pursuant

to Section 203 of the Communications

Act, 47 U.S.C. 203, each of the LECs

providing FLEX ANI shall FILE tariffs to

recover the cost of implementing FLEX

ANI as required herein no later than 30

days after full implementation of FLEX

ANI.

32. It is further ordered that LECs are

granted a waiver of Part 69 of the

Commission’s rules to develop a rate

element for recovery of costs incurred to

implement FLEX ANI from PSPs for the

requirements of this order to provide

FLEX ANI to IXCs.

33. It is further ordered that the ITA

Petition for Reconsideration and the

AirTouch Petition for Waiver of the

Bureau Waiver Order are denied.

34. It is further ordered that the

waiver requests of USTA, the LEC

Coalition, and TDS are granted to the

extent described herein, and otherwise

are denied.

Federal Communications Commission.

A. Richard Metzger, Jr.,

Chief, Common Carrier Bureau.

[FR Doc. 98–11163 Filed 4–24–98; 8:45 am]

BILLING CODE 6712–01–U

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 660

[Docket No. 980415098–8098–01;

I.D.031998A]

RIN 0648–AK22

Fisheries Off West Coast States and in

the Western Pacific; Western Pacific

Crustacean Fisheries; Vessel

Monitoring System; Harvest Guideline;

Closed Season

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Final rule.

SUMMARY: NMFS issues this final rule to

implement three management measures

governing the crustacean fisheries in the

Exclusive Economic Zone around

Hawaii. The first measure allows fishing

vessels in the Northwestern Hawaiian

Islands (NWHI) lobster fishery with

vessel monitoring system (VMS) units to

transit the prohibited Crustaceans

Permit Area 1 VMS Subarea while

returning to port following closure of

the fishery. Because these vessels are

under surveillance by NMFS, they are

allowed to traverse the permit subarea.

Lobster vessels without VMS units must

be outside the permit area when the

closure takes effect and be back in port

as specified by the Administrator,

Southwest Region, NMFS. The second

measure changes the deadline by which

NMFS must announce the NWHI lobster

harvest guideline for the following

fishing season from March 31 to

February 28. This action gives

fishermen additional lead time to

prepare their vessels for the lobster

season which opens on July 1. The third

measure, which pertains to the main

Hawaiian Islands crustacean fishery,

adds another month (May) to the

existing closed lobster season (June

through August), which makes Federal

regulations for the lobster closed season

consistent with the State of Hawaii’s

closed season for State waters. This rule

also contains a nonsubstantive

clarification of the definition of

Crustaceans Permit Area 1 VMS

Subarea.

DATES: Effective May 27, 1998.

ADDRESSES: Copies of background

material pertaining to this action may be

obtained from Kitty Simonds, Executive

Director, Western Pacific Fishery

Management Council (Council), 1164

Bishop St., Suite 1400, Honolulu, HI

96813, or Alvin Katekaru, Resource

Management Specialist, Pacific Islands

Area Office, Southwest Region, NMFS,

2570 Dole Street, Honolulu, HI 96822,

FOR FURTHER INFORMATION CONTACT:

Alvin Katekaru at (808) 973–2985 or

Kitty Simonds at (808) 522–8220.

SUPPLEMENTARY INFORMATION: Following

the 1997 NWHI lobster season, lobster

fishermen reviewed the program and

identified two issues that needed to be

addressed. First, the requirement that

VMS-carrying lobster vessels be outside

the Crustaceans Permit Area 1 VMS

Subarea when the fishery is closed (50

CFR 660.48), causes these vessels to take

an indirect route back to port adding

approximately 50 nautical miles to their

return trip. Second, fishermen also

requested more lead time to prepare (i.e,

purchase and outfit lobster traps) for the

lobster season and recommended that

NMFS announce the next season’s

harvest guideline no later than 90 days

following closure of the previous

season.

These issues were initially discussed

at the 92nd Council meeting held in

April 1997. In August 1997, at its 93rd