*Pages 1--7 from Microsoft Word - 38299* Federal Communications Commission DA 04- 1312 Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of Telephone Number Portability Petition of The North- Eastern Pennsylvania Telephone Company for Temporary Waiver of its Porting Obligations ) ) ) ) ) ) ) ) ) CC Docket No. 95- 116 ORDER Adopted: May 12, 2004 Released: May 13, 2004 By the Deputy Chief, Wireline Competition Bureau: I. INTRODUCTION 1. In this Order, we deny the petition filed by The North- Eastern Pennsylvania Telephone Company (NEP) seeking an extension of the May 24, 2004 deadline for implementing local number portability (LNP or porting). 1 We find that NEP has not demonstrated that special circumstances warrant a waiver or that such an extension is in the public interest. We will not, however, enforce NEP’s LNP obligations until sixty days after the release of this Order to provide NEP with an opportunity to make arrangements to come into compliance with its LNP obligations. II. BACKGROUND 2. Local Number Portability. Section 251( b) of the Communications Act of 1934, as amended, (Act) 2 mandates local exchange carriers (LECs) to provide LNP in accordance with the requirements outlined by the Commission. 3 The Commission, in the Number Portability First Report and Order, established the parameters for LNP and required commercial mobile radio service (CMRS or wireless) 1 See Petition of The North- Eastern Pennsylvania Telephone Company Petition for Waiver of Section 52.23( b) of the Commission’s Rules, filed March 23, 2004 (NEP Petition). The NEP petition was placed on public notice on March 26, 2004. See Wireline Competition Bureau Seeks Comment on the Petition of The North- Eastern Pennsylvania Telephone Company for Temporary Waiver of the Commission’s Number Portability Requirements, Public Notice, CC Docket No. 95- 116, DA 04- 798 (rel. March 26, 2004). Comments were filed by Cellular Telecommunications & Internet Association (CTIA), Dobson Communications Corporation (Dobson), Nextel Communications, Inc. (Nextel) and Verizon Wireless (Verizon), and reply comments were filed by National Telecommunications Cooperative Association (NTCA), NEP, and T- Mobile USA, Inc. (T- Mobile). 2 47 U. S. C. §§ 151- 174. 3 47 U. S. C. §251( b). 1 Federal Communications Commission DA 04- 1312 2 providers to become LNP- capable pursuant to sections 1, 2, 4( i), and 332 of the Act. 4 In doing so, the Commission concluded that the public interest is served by making LNP available across different technologies and thereby promoting competition between CMRS service providers and wireline carriers. 5 Initially, CMRS providers were required to become LNP- capable by June 30, 1999. 6 The Commission subsequently extended this deadline, and required CMRS carriers operating in the top 100 Metropolitan Statistical Areas (MSAs) to provide number portability upon request by another carrier by November 24, 2003. 7 CMRS carriers operating outside the top 100 MSAs must become LNP- capable within six months of a request or by May 24, 2003, whichever is later. 8 On November 10, 2003, the Commission concluded that, as of November 24, 2003, LECs must port numbers to wireless carriers where the requesting wireless carrier’s “coverage area” overlaps the geographic location of the rate center in which the customer’s wireline number is provisioned, provided that the porting- in carrier maintains the number’s original rate center designation following the port. 9 The Commission, however, granted wireline carriers operating in areas outside of the 100 largest MSAs, in certain circumstances, a waiver until May 24, 2004 of the requirement to port numbers to wireless carriers. 10 The Commission later granted certain LECs with fewer than two percent of the nation’s subscriber lines in the aggregate nationwide (Two Percent Carriers) that operate in the top 100 MSAs a limited waiver of the wireline- to- wireless porting requirement. 11 3. NEP’s Request for Waiver. NEP is a rural incumbent LEC providing service in Northeast Pennsylvania. 12 NEP represents that it decided, in 2001, to upgrade its switch network and sought 4 Telephone Number Portability, First Report and Order and Further Notice of Proposed Rulemaking, 11 FCC Rcd 8352, 8431- 42 (1996) (Number Portability First Report and Order). 5 See id. at 8432, ¶ 153. 6 Id. at 8440, ¶ 166. 7 See Verizon Wireless Petition for Partial Forbearance from the Commercial Mobile Radio Services Number Portability Obligation and Telephone Number Portability, Memorandum Opinion and Order, 17 FCC Rcd 14972 (2002) (Verizon Wireless LNP Forbearance Order); Cellular Telecommunications & Internet Association v. FCC, No. 02- 1264 (D. C. Cir. June 6, 2003) (Dismissing in part and denying in part CTIA’s appeal of the Commission’s decision in the Verizon Wireless LNP Forbearance Order). CMRS carriers were required to be LNP- capable by November 24, 2003 if requests from other carriers were received by February 24, 2003. Verizon Wireless LNP Forbearance Order, 17 FCC Rcd at 14985- 86. The Verizon Wireless LNP Forbearance Order also lays out the history of the CMRS carriers’ LNP deadline extensions. See also, Western Wireless Limited, Conditional Petition for Waiver of Local Number Portability and Thousands- Block Number Pooling Obligations, CC Docket Nos. 95- 116 and 99- 200, Order, 18 FCC Rcd 24692 (Wireline Comp. Bur. 2003) (Western Wireless Order). 8 Verizon Wireless LNP Forbearance Order, 17 FCC Rcd at 14986. 9 See Telephone Number Portability, CTIA Petitions for Declaratory Ruling on Wireline- Wireless Porting Issues, CC Docket No. 95- 116, Memorandum Opinion and Order and Further Notice of Proposed Rulemaking, 18 FCC Rcd 23697, 23706- 07 (2003) (Intermodal LNP Order). 10 Id. 11 Telephone Number Portability, Order, 19 FCC Rcd 875 (2004). 12 NEP’s existing switch network consists of eight exchanges. These exchanges include the Union Dale, Harford, New Milford, Jackson, Thompson, Pleasant Mount, Clifford, and Forest City exchanges. See NEP Petition at 2, 5. 2 Federal Communications Commission DA 04- 1312 3 informal quotes from various switch equipment manufacturers at that time. 13 NEP subsequently concluded that it would be more efficient and economical to replace its existing switches with software based switch (“ soft switch”) technology. 14 Accordingly, in March 2003, NEP sought formal quotes and proposals from several switch manufacturers for soft switches. 15 In September 2003, NEP contracted with Taqua, Inc. (Taqua) to purchase eight soft switches to be installed on a phased- in basis, beginning on May 1, 2004 and ending on December 31, 2005. 16 However, according to NEP, certain service feature implementation issues need to be resolved before the first switch can be put into service. 17 NEP requests a waiver to provide additional time to accommodate the deployment schedule for its eight exchanges and to resolve the implementation issues. 18 4. NEP contends good cause exists for granting an extension of the May 24, 2004 porting implementation deadline. 19 Specifically, NEP maintains that it has been planning and implementing network upgrades since 2001 to address expected network capability requirements. 20 NEP argues that it did not anticipate that intermodal porting 21 would be an “imminent requirement” until the Commission’s Intermodal LNP Order released in November 2003. 22 Upon release of the order, NEP contends that it immediately reviewed its number portability plans with Taqua. 23 NEP maintains that, while working with Taqua to resolve certain service feature issues, it became apparent to NEP that it will be unable to meet the May 24, 2004 implementation deadline for all of its switches. 24 Further, NEP states that it will provide the Commission with quarterly progress reports and updates to the deployment schedule, including solutions that will allow NEP to advance its deployment schedule and number portability. 25 13 Id. at 2. 14 Id. 15 Id. at 3. 16 Id. at 3, 5. 17 Id. at 3. 18 See id. at 5. NEP’s projected switch in- service date for its eight exchanges is as follows: (1) Union Dale - May 1, 2004; Harford - June 30, 2004; New Milford - September 30, 2004; Jackson - December 31, 2004; Thompson - March 31, 2005; Pleasant Mount - June 30, 2005; Clifford - September 30, 2005; and Forest City - December 31, 2005. Id. NEP notes, however, that this deployment schedule is dependent on Taqua’s resolution of service feature problems and the successful deployment of LNP. Id. 19 Id. at 1; NEP Reply Comments at 1- 2. 20 NEP Petition at 2- 3. 21 Intermodal porting is porting between wireline and wireless service providers. 22 Id. at 4. 23 Id. 24 Id. at 5. 25 Id. at 6. 3 Federal Communications Commission DA 04- 1312 4 5. CTIA, Dobson, Nextel, Verizon, and T- Mobile oppose granting NEP’s waiver. 26 They argue that NEP has not demonstrated through substantial, credible evidence that special circumstances justify a waiver of the Commission’s LNP rules. 27 They also contend that the public interest would not be served if such waiver is granted. 28 Specifically, they argue that grant of NEP’s waiver would undermine the Commission’s goal of promoting competition and cause customer confusion. 29 6. One commenter, NTCA, supports NEP’s petition. 30 NTCA maintains that, because NEP is moving toward full compliance with its LNP obligations, the Commission should provide NEP with a temporary waiver. 31 NTCA contends that large carriers, such as Nextel and Verizon, fail to take into account the financial, technical, and staffing realities of small LECs. 32 According to NTCA, it would have been financially irresponsible for NEP to upgrade its equipment prior to having a firm obligation to do so. 33 7. Waiver Standard. The Commission’s rules may be waived when good cause is demonstrated. 34 The Commission may exercise its discretion to waive a rule where the particular facts make strict compliance inconsistent with the public interest. 35 In doing so, the Commission may take into account considerations of hardship, equity, or more effective implementation of overall policy on an individual basis. 36 Commission rules are presumed valid, however, and an applicant for waiver bears a heavy burden. 37 Waiver of the Commission’s rules is therefore appropriate only if special circumstances warrant a deviation from the general rule, and such a deviation will serve the public interest. 38 26 See CTIA Comments at 1- 2; Dobson Comments at 1- 2; Nextel Comments at 1- 3; Verizon Comments at 1- 3; T-Mobile Reply Comments at 1- 2. 27 See CTIA Comments at 2- 3; Dobson Comments at 3- 8; Nextel Comments at 3- 6; Verizon Comments at 3- 4; T-Mobile Reply Comments at 2- 4. 28 See CTIA Comments at 3; Dobson Comments at 8; Nextel Comments at 7- 8; Verizon Comments at 5- 7; T-Mobile Comments at 4- 5. 29 Id. 30 See NTCA Reply Comments. 31 See id. at 1. 32 Id. at 3. 33 Id. at 2- 3. 34 47 C. F. R. § 1.3; see also WAIT Radio v. FCC, 418 F. 2d 1153, 1159 (D. C. Cir. 1969), cert. denied, 409 U. S. 1027 (1972) (WAIT Radio). 35 Northeast Cellular Telephone Co. v. FCC, 897 F. 2d 1164, 1166 (Northeast Cellular). 36 WAIT Radio, 418 F. 2d at 1159; Northeast Cellular, 897 F. 2d at 1166. 37 WAIT Radio, 418 F. 2d at 1157. 38 Id. at 1159. 4 Federal Communications Commission DA 04- 1312 5 8. In seeking an extension of the LNP deployment deadline, a carrier must provide substantial, credible evidence to support its contention that it is unable to comply with the deployment schedule. 39 A request for an extension of a deadline must be filed with the Commission at least sixty days in advance of the deadline. 40 III. DISCUSSION 9. We find that NEP has not demonstrated good cause to justify waiving the May 24, 2004 porting deadline. In particular, we agree with those commenters who argue that NEP has not shown through substantial, credible evidence that special circumstances warrant an extension of the porting deadline until December 31, 2005 and that postponing porting as requested will serve the public interest. 41 We decline, however, to enforce NEP’s LNP obligations for sixty days following the release of this Order. 10. Special Circumstances. We are not persuaded by NEP’s claims that special circumstances exist warranting a waiver of the May 24, 2004 porting deadline in order to accommodate NEP’s switch delivery and deployment schedule, and provide additional time to resolve any service feature issues. We find that NEP has not presented “extraordinary circumstances beyond its control in order to obtain an extension of time.” 42 Rather, NEP consciously made a business decision to upgrade its switches on a certain schedule. 43 NEP has not shown that challenges it may face are different from those faced by similarly situated carriers who are able to comply. 44 Generalized references to limited resources and implementation problems do not constitute substantial, credible evidence justifying an exemption from the porting requirements. NEP has known since 1996 that it would need to support LNP within six months of a request from a competing carrier. 45 Although wireless LNP was delayed, all carriers have been on notice since July 2002 that wireless and intermodal LNP would become available beginning in November 2003. 46 Thus, NEP has had sufficient time to follow through with these mandates and prepare for LNP. 47 39 47 C. F. R. § 52.23( e); see also 47 C. F. R. § 52.31( d). 40 Id. 41 See CTIA Comments at 2- 3; Dobson Comments at 3- 8; Nextel Comments at 3- 6; Verizon Comments at 3- 4; T-Mobile Reply Comments at 2- 4. 42 Number Portability First Report and Order, 11 FCC Rcd at 8397, ¶ 85. 43 See supra ¶ 3. 44 See Western Wireless Order, 18 FCC Rcd at 24696, ¶ 10 (in denying a waiver request to extend the thousands-block number pooling and LNP deadlines, the Bureau found that “Western ha[ d] not demonstrated that it will sustain costs that are different from, or burdensome than, the costs of similarly situated Tier II wireless carriers”). 45 See Number Portability First Report and Order, 11 FCC Rcd 8352; Telephone Number Portability, First Memorandum Opinion and Order on Reconsideration, 12 FCC Rcd 7236, 7273- 75, ¶¶ 60- 66 (1997) (Number Portability Reconsideration Order). 46 See Verizon Wireless LNP Forbearance Order, 17 FCC Rcd 14972. 47 See Western Wireless Order, 18 FCC Rcd at 24697- 98, ¶ 13. (continued….) 5 Federal Communications Commission DA 04- 1312 6 11. Public Interest. We also conclude that an extension of the porting deadline until December 31, 2005 would not serve the public interest because it would unduly delay the benefits of number portability to the public and could cause customer confusion. Portability has promoted, and will continue to promote, competition, especially in underserved areas, by allowing consumers to move to carriers that better serve consumers’ needs without having to make the difficult choice to give up their numbers. 48 Thus, we find that the public interest would be served by implementing porting as soon as possible. 12. Furthermore, NEP should have considered the porting requirements, set out by the Commission long ago, when it contracted with vendors to install necessary upgrades. Accordingly, we conclude that granting NEP’s request to extend the porting deadline would be inconsistent with the Commission’s policy to promote competition, consumer choice, and efficient number use. We therefore deny NEP’s request for a waiver of the May 24, 2004 porting implementation deadline. 13. Although we are not persuaded that a waiver of the porting requirements until December 31, 2005 is justified, we decline to enforce NEP’s LNP obligations for sixty days following the release of this Order. 49 We find that some limited time to allow NEP to make the necessary preparations to implement LNP is reasonable to ensure compliance with our rules. 50 Non- enforcement for sixty days will also help to avoid any network disruptions, maximize trouble- free operation of LNP, and ensure that customers’ requests for services will not be delayed due to carriers’ difficulty in obtaining numbering resources. 51 (Continued from previous page) 48 Verizon Wireless LNP Forbearance Order, 17 FCC Rcd at 14984, ¶ 28. 49 See Western Wireless Order, 18 FCC Rcd 24692 (in denying Western’s petition for waiver to extend the thousands- block number pooling (pooling) and LNP deadlines, the Bureau found that a sixty- day non- enforcement period would provide Western the time needed to properly implement and commence LNP and pooling). 50 Id. at 24698, ¶ 16. 51 Id. 6 Federal Communications Commission DA 04- 1312 7 IV. ORDERING CLAUSE 14. Accordingly, IT IS ORDERED that, pursuant to authority contained in sections 1, 4( i), 251, and 332 of the Communications Act of 1934, as amended, 47 U. S. C. §§ 151, 154( i), 251, 332, and the authority delegated under sections 0.91, 0.291, 1.3, 52.9( b), and 52.23( e) of the Commission’s rules, 47 C. F. R. §§ 0.91, 0.291, 1.3, 52.9( b), 52.23( e), the petition filed by The North- Eastern Pennsylvania Telephone Company is DENIED to the extent described herein. FEDERAL COMMUNICATIONS COMMISSION Carol E. Mattey Deputy Chief, Wireline Competition Bureau 7