1 Attachment #2 October 28, 2009 Via e-mail (BAKane@psc.gov) The Honorable Betty Anne Kane Chair, North American Numbering Council Public Service Commission of the District of Columbia 1333 H Street, N.W., West Tower 7th Floor Washington, DC 20005 RE: Joint Minority Report by COMPTEL and XO Communications Dear Chairperson Kane, COMPTEL and XO Communications (“XO”) commend the North American Numbering Council (“NANC”) as a whole and especially the participating members of the NANC’s LNPA Working Group (“LNPA WG”) for the time and effort contributed to discussing and drafting the LNPA WG Recommended Plan for Implementation of FCC Order 09-41(“LNPA WG Plan”). However, COMPTEL and XO jointly submit this Minority Report opposing one of the recommendations included in the LNPA WG Plan. Specifically, COMPTEL and XO object to the recommendation that would require an Old Service Provider (SP) to process a response to a Local Service Request (“LSR” or “port request”) for certain Non-Simple ports within 4 hours rather than the current rules which permit a 24-hour response time for Non-Simple port requests:1 In instances where the LSR indicates the port request is Non-Simple based on the current FCC definition and rule for a Simple Port, the Old SP must return an FOC or appropriate response within 24 clock hours. However, if there is no obvious indication that the port request is Non-Simple and was requested as a Simple Port with a requested 1-2 Business Day due date, but the Old SP determined that it is a Non-Simple Port, a response is due back to the New SP in four (4) hours (either an FOC with an extended due date or a Reject (whichever is applicable) in accordance with the [SIMPLE PORT - LSR TO FOC INTERVAL CHART].2 1 See Report of NANC’s Local Number Portability Administration Selection Working Group, dated April 25, 1997 (Working Group Report, Appendix B, Figure 1, Step 7 (“Old Service Provider provides Firm Order Confirmation (FOC) to New Service Provider within 24 hours.”). 2 LNPA WG Recommended Plan for Implementation of FCC Order 09-41, § 3.1. 2 XO actively participated during LNPA WG discussions of this issue and previously raised its objections during those discussions and the voting process. Along with 13 other CLECs, XO filed a Position Paper3 with the LNPA WG and with the NANC in addition to raising its objections during the NANC meeting on October 15. COMPTEL, the leading industry association of wireline CLECs, also filed a written Objection To Certain Aspects Of The LNPA- WG Implementation Plan 4 with the NANC and also raised such objections during the NANC meeting. In its Porting Interval Order, the Federal Communications Commission (“FCC” or “Commission”) “…reduce[d] the porting interval for simple wireline and simple intermodal port requests,” compeling “all telecommunications carriers required by the Commission to port telephone numbers [to] complete a simple wireline-to-wireline or simple intermodal port request within one business day unless a longer period is requested by the new provider or by the customer.”5 The Commission directed “the NANC to develop new LNP provisioning process flows that take into account this shortened porting interval.”6 But the Commission did not reduce the porting intervals for Non-Simple ports or authorize the NANC to unnecessarily reduce carrier-to-carrier communication time-frames in the provisioning process flows for Non- Simple ports. According to the LNPA WG Plan, a New SP (or gaining carrier) may request a due date of 1-2 Business Days on the LSR in order to label the port as a Simple Port. When the Old SP receives the LSR and determines that it is actually a Non-Simple port (i.e., the New SP incorrectly labeled it as a Simple Port), the recommendation requires the Old SP to respond to the New SP within 4 hours with either a Firm Order Commitment (“FOC”) or a Reject notification. Under the current OBF process and guidelines, it is not feasible for an Old SP to send an alternative notification indicating its substantive response (the FOC or Reject) will be delayed because the port is Non-Simple. However, providing either of the required substantive responses within 4 hours may be burdensome to an Old SP, due to the time involved in processing a particular Non-Simple Port LSR or to the overall volume of LSRs that the Old SP processes. Many wireline CLECs process very few Simple ports, due to their business plans for serving primarily business (multi-line) and/or carrier (reseller) customers. However, the recommendation could require these carriers to internally process many Non-Simple LSRs within the shortened interval merely because the New SP mistakenly believed the LSR involved a Simple port. 3 Attached hereto as Attachment 1. 4 Attached hereto as Attachment 2. 5 In the Matter of Local Number Portability Porting Interval and Validation Requirements and Telephone Number Portability, Report and Order and Further Notice of Proposed Rulemaking, WC Docket No. 07-244 and CC Docket No. 95-116, ¶ 1 (2009) (“Porting Interval Order” or “2009 Porting NPRM”) (emphasis added). See 47 C.F.R. 52.35. 6 Porting Interval Order ¶ 10 (emphasis added). 3 Not only is the LNPA WG proposal outside the scope of the FCC’s Porting Interval Order, it does not shorten and may even increase the porting interval of these Non-Simple ports. According to the LNPA WG Plan, if the request is a Non-Simple port but was submitted with a Due Date of 1-2 business days, the Old SP must respond within 4 hours and may choose to send a Reject notification for an invalid Due Date or a FOC that includes a modified Due Date. However, this expedited response to the New SP will not expedite the port itself. Even if the Old SP sends a FOC with a modified Due Date within 4 hours, the port will not be completed within one business day since it is a Non-Simple port. If the Old SP is required to respond within 4 hours, the port will likely be delayed further, often by an additional day. This is because with the expedited response deadline, the Old SP is more likely to Reject the port because of its invalid Due Date (due to the increased time it takes to accurately prepare a FOC with a modified Due Date). The New SP then will be required to resubmit a new LSR for the same port, but with a corrected Due Date appropriate for a Non- Simple port. Furthermore, the New SP must wait another 24 hours before it may expect to receive a FOC for the new LSR, and the port will be completed within the standard Non-Simple port interval measured from the time this second LSR was submitted. Alternatively, if the Old SP was permitted to return a FOC on the original LSR within 24 hours, giving the carrier appropriate time to accurately process the more complex LSR, neither carrier would need to resubmit or re-process a new LSR and the port would be completed within the standard interval for Non-Simple ports measured from the time the initial LSR was submitted. The recommendation in the LNPA WG is not an optimal solution from the customer’s perspective because the port is further delayed, nor is it preferable for a carrier that must re-process a second LSR for the same port. Thus, while this recommendation has been characterized by its proponents as a customer- friendly option, in actuality, it merely benefits the New SP after it submits a Simple port LSR in error. While the receipt of a response within 4 hours may facilitate the New SP’s communication with its customer, such a response is not critical for the New SP to initiate contact with the customer to reschedule the port. The New SP cannot be assured under any circumstances that it will be able to complete the port within one business day unless it receives a FOC from the Old SP confirming the requested Due Date. Importantly, the New SP does not need an affirmative response from the Old SP in order to initiate this rescheduling process. If the New SP does not receive a confirming FOC within 4 hours, it can decide whether to notify the Old SP and/or to begin the process of rescheduling the port with the customer. In other words, COMPTEL and XO submit that the responsibility should remain with the New SP to track and manage its own port requests and address the fall-out from any mistakenly labeled Simple ports, rather than imposing increased costs on the Old SP to expedite its processing for the more complex Non-Simple ports. Moreover, considering the FCC’s general goal of increasing the efficiency of the porting process and decreasing porting intervals, the NANC should not adopt a recommendation that could lead to unnecessarily delaying a customer’s port. According to Chapter I5 of the NANC Operating Manual, “the Council will assure … that NANP and LNP administration does not unduly favor or disfavor any particular industry segment or group of consumers.”7 This proposed recommendation disfavors wireline CLECs 7 NANC Operating Manual, Version 2 (Modified September 9, 2006), Chapter I5. 4 that serve mainly business customers and process primarily Non-Simple Ports, by requiring them to respond to certain Non-Simple port requests within 4 hours despite the FCC rules allowing a 24-hour response time for these ports. This increases an Old SP’s costs and opportunities for error during expedited validation and processing for those Non-Simple ports that are inherently more complex and time-consuming. Furthermore, it may jeopardize the Old SP’s processing of certain Simple ports while the carrier’s resources are diverted to handling FOCs for Non-Simple ports. Furthermore, COMPTEL and XO also have strong concerns about the manner in which “consensus” has been determined. Although most of the participating wireline CLECs objected to the proposed recommendation, the votes of certain carriers were given minimal consideration because they were considered “lightweight” votes rather than “heavyweight” ones. The language in Chapter I2 of the NANC Operating Manual describing how “consensus” is formed strongly favors larger carriers by allowing one carrier’s vote to have more weight than another carrier based on each carrier’s length of participation within the LNPA WG: Fundamentally, determining when consensus is reached is a judgment call to be made by the Chair. Included in the Chair’s judgment are not just the numbers of Members “for” or “against” but, more importantly, the “weight” (i.e., the experience, reputation and knowledge) of each Member who is “for” or “against.” Another judgment factor to be considered by the Chair is the intensity with which each Member’s views are held. Each NANC Member earns his or her consensus “weight” through regular participation, expertise, collegiality and other factors valued by the Chair. Thus, if only one “heavyweight” – a very experienced, knowledgeable and fair person – was strongly against a decision, that might be enough to defeat consensus. Similarly, if a large number of “lightweights” (i.e., those who have earned little respect, rarely attend meetings or participate in them) attend a meeting and take one side of an issue and a similar number of “heavyweights” are on the other side, it would be reasonable for the Chair to find that the heavyweights’ view constitute the consensus. Similarly, a smaller number of heavyweight Members with intensely held views could constitute the consensus against weakly held views of lighter weight Members.8 For smaller carriers that do not have resources to devote to ongoing active participation in the LNPA WG, this language essentially voids their effective participation in the process. There is no valid rationale for discounting certain carrier’s votes in this manner since the carrier’s objections are no less valid just because it did not actively participate throughout the process. Moreover, many wireline CLECs that process primarily Non-Simple ports had no notice that such dramatic changes would be made to process flows for Non-Simple ports because that was not included within the scope of the FCC’s Porting Interval Order. So, while the LNPA WG process is open to any carrier, these CLECs would have had little reason to devote significant resources to active participation in the process until they became aware of this proposed 8 NANC Operating Manual, Version 2 (Modified September 9, 2006), Chapter I2. 5 recommendation. But apparently according to the NANC guidelines and how they were applied in this case, this is too late for that carrier to voice its concerns and receive equal consideration. For the foregoing reasons, COMPTEL, the leading industry association of wireline CLECs, and XO, along with the 13 CLECs included on the Position Paper, object to the recommendation in the LNPA WG Plan that would require Old SP’s to respond to certain port requests within 4 hours when the Old SP determines that such request is actually Non-Simple. Such a recommendation is outside the scope of the FCC rules and direction in its Porting Interval Order, and COMPTEL and XO submit that a better solution would be for the Old SP to respond within 24 hours, as is permitted under FCC rules, in order to alleviate the risk of further delaying these customer ports. Sincerely, ______/s/ __ Karen Reidy____________ Karen Reidy Vice President, Regulatory Affairs COMPTEL _____/s/ Tiki Gaugler__________________ Tiki Gaugler Senior Manager & Counsel, Regulatory XO Communications cc: Ms. Marilyn Jones, DFO Ms. Deborah Blue Attachment 2 2 Attachment 1 1 POSITION PAPER Birch Communications, Broadview, Cavalier, Cbeyond, DeltaCom, First Communications, Integra Communications, NuVox, PAETEC, RNK Communications, TDS Metrocom, TelePacific Communications, tw telecom, and XO Communications (collectively, “We” or the “CLECs”) are providing this position paper to facilitate a thoughtful and comprehensive discussion about the issues on the agenda for the LNPA-WG conference call scheduled for Tuesday, August 11, 2009, as well as to respectfully request the LNPA-WG to reconsider its conclusion that a consensus was reached during the meeting on July 27-28, 2009 regarding FOC response times. We believe that it is inappropriate for the LNPA-WG to recommend the Revised Option 2a9 regarding FOC response times to Non-Simple Ports because the Commission’s recent Porting Interval Order10 applies only to Simple Ports and does not require or direct the NANC to develop any process flows that would unnecessarily change the processing for Non-Simple Ports. The Federal Communications Commission’s rule states: “all telecommunications carriers required by the Commission to port telephone numbers must complete a simple wireline-to-wireline or simple intermodal port request within one business day unless a longer period is requested by the new provider or by the customer.”11 There is no mention of changing the porting interval or carrier-to-carrier communications for Non-Simple Ports. This is particularly important since all of the goals for improving the porting process for Simple Ports can be accomplished without unnecessarily imposing significant costs and burdens for the Non-Simple Porting Process that are associated with Revised Option 2a. FOC Response Times We understand there may be investigation and further discussion into the feasibility of developing a new response (other than a FOC or Reject) to an LSR requesting a Simple Port when the Old SP determines that it is actually a Non-Simple LSR in order to alert the New SP that the FOC will be sent within 24 hours rather than 4 hours. However, we believe that the Old SP should be subject to the following requirements: 9 Revised Option 2a: If the New SP-requested due date is 1-2 Business Days after LSR receipt, the Firm Order Confirmation (FOC) or Reject (whichever is applicable) is due within 4 hours, provided the LSR is received by the Old SP by the 1pm Business Day cutoff time (local time in the predominant time zone of the NPAC Region where the number is being ported). If the New SP-requested due date is 3 or more business days after LSR receipt, the Firm Order Confirmation (FOC) or Reject (whichever is applicable) is due within 24 clock hours. In instances where the LSR indicates the port request is Non-Simple based on the current FCC definition and rule for a Simple Port, the Old SP must return a FOC or appropriate response within 24 clock hours. 10 In the Matter of Local Number Portability Porting Interval and Validation Requirements and Telephone Number Portability, Report and Order and Further Notice of Proposed Rulemaking, WC Docket No. 07-244 and CC Docket No. 95-116, ¶ 19 (2009) (“Porting Interval Order” or “2009 Porting NPRM”). 11 47 C.F.R. 52.35. Attachment 1 2 · If the New SP-requested due date is 1-2 Business Days after LSR receipt, for LSRs involving Simple Ports, as determined by the Old SP, the Old SP must return a FOC or Reject (whichever is appropriate) within 4 hours of receiving the LSR. · If the New SP-requested due date is 1-2 Business Days after LSR receipt, for LSRs involving Non- Simple Ports, as determined by the Old SP, the Old SP must return a FOC or Reject (whichever is appropriate) within 24 hours of receiving the LSR. · If the New SP-requested due date is 3 or more Business Days after LSR receipt, for LSRs involving Simple or Non-Simple Ports, the Old SP must return a FOC or Reject (whichever is appropriate) within 24 hours of receiving the LSR. These requirements would provide the New SP with all of the information it needs without imposing unnecessary costs upon the Old SP. Specifically, · The New SP will receive a FOC or a Reject within 4 hours for all Simple Port Requests that request processing within the one-business-day interval. · The New SP will receive a FOC or a Reject within 24 hours for all Non-Simple Port Requests and for Simple Port Requests that request a later due date. · Within 4 hours, the New SP will know that an LSR it erroneously identified as involving a Simple Port actually involves a Non-Simple Port: The lack of response within 4 hours is the equivalent of a notification that the LSR involves a Non-Simple Port and that the FOC or Reject will be sent within 24 hours. The focus and intent of the Commission’s Porting Interval Order is to increase the efficiency and speed of Simple Ports. Requiring the Old SP to act on an LSR involving a Non-Simple Port within 4 hours merely because the New SP mistakenly believed it involved a Simple Port is unreasonable because it would impose significant costs and burdens on Old SPs that are not required by the Commission’s rules and not necessary to improve the experience for the New SP’s customers as the port itself would not be expedited. On the contrary, it introduces greater opportunities for errors during such expedited validation and processing for Non-Simple Ports that are inherently more complex and time-consuming to process and could jeopardize the Old SP’s processing of other Simple Ports as the carrier is diverted to also handle responses to Non-Simple Ports during that 4-hour timeframe. To the extent that default notification to the New SP that it erroneously identified a Non-Simple Port Request as a Simple Port request is insufficient from the New SP’s perspective, the New SP could verify the nature of the port request by requesting the CSR before submitting the LSR. To the extent the preliminary conclusion that consensus was reached during the July 27-28 meeting is inconsistent with this approach of providing the New SP with all of the information it needs without unnecessarily imposing costs and burdens on the Old SP, we strongly object. In addition to our objections that Options 2a and 3a (even with the additive language) are substantively flawed since they impose tremendous costs and burdens with no benefit to the customer whatsoever, we do not believe that a consensus finding accurately reflects the depth and breadth of the objections to those options, particularly since the objections are based upon well-founded concerns and thoughtful analysis. Attachment 1 3 For these reasons, we respectfully request the LNPA-WG reconsider the option we have set forth here and its preliminary conclusion that consensus was reached in support of Revised Option 2a. Although we understand consensus is not to be determined by a mechanical objective process, we believe there was considerable intense objection from both the ILEC and CLEC industry segments against the proposed options that required an Old SP to respond within 4 hours to all port requests submitted with a 1-2 or 1-3 business day due date (original Options 2a12 and 3a,13 respectively), regardless of whether those requests were actually Simple or Non-Simple. In fact, there was unanimous objection by the CLECs (constituting a consensus block) as well as objection by a considerable number of both large and small ILEC representatives to the original Option 3a. Additionally, there was almost unanimous objection by both the CLEC industry segment and large ILEC segment (as well as other small ILECs) to the original Option 2a. We believe that taking all these votes into consideration should have constituted a block of both Options 2a and 3a, rather than applying the mechanical process of pronouncing a consensus block only when a unanimous vote of one industry segment exists. Thus, even though neither the large ILECs nor the CLECs may have formed an outright unanimous block of Option 2a as individual industry segments, we believe that the fact that there was almost unanimous objection for it by essential segments of the wireline industry should have formed a consensus block for that option. Additionally, if the LNPA-WG moves forward to vote on the proposed revision to the flows, we object to eliminating the Old SP’s ability to respond with a Reject for invalid due date if the port request is actually one for a Non-Simple Port, as determined by the Old SP.14 In any event, we strongly believe the proposal described here would accomplish the goals of all industry segments without imposing the costs and burdens that have generated so much opposition. 12 Original Option 2a: If the New SP-requested due date is 1-2 business days after LSR receipt, the Firm Order Confirmation (FOC) or Reject (whichever is applicable) is due within in 4 hours. If the New SP-requested due date is 3 or more business days after LSR receipt, the Firm Order Confirmation (FOC) or Reject (whichever is applicable) is due within 24 clock hours. 13 Original Option 3a: If the New SP-requested due date is 1-3 business days after LSR receipt, the Firm Order Confirmation (FOC) or Reject (whichever is applicable) is due within 4 hours. If the New SP-requested due date is 4 or more business days after LSR receipt, the Firm Order Confirmation (FOC) or Reject (whichever is applicable) is due within 24 clock hours. 14 “NOTE: The current draft revision to the flows accommodates an option for the Old SP, after determining that a Simple Port request is really Non-Simple, to FOC the order within 4 hours with a different due date appropriate for a Non-Simple Port if the LSR contains sufficient data for a Non-Simple Port. If the LSR contains insufficient data, it can be rejected back to the New SP” (Excerpt from August 4, 2009 e-mail from co-chair Gary Sacra to the LNPA- WG). Attachment 2 October 9, 2009 Honorable Betty Ann Kane Chairman North American Numbering Council District of Columbia Public Service Commission 1333 H Street, N.W., West Tower 7th Floor Washington, DC 20005 RE: Comments of COMPTEL on LNPA WG Recommended Implementation Plan of FCC 09-41 Dear Chairman Kane: COMPTEL submits the attached comments opposing one aspect of the LNPA WG Recommended Implementation Plan of FCC-0941, for inclusion in the record of the NANC meeting scheduled for October 15, 2009. Thank you again for permitting us to provide a written submission. Respectfully Submitted, /s/ Karen Reidy COMPTEL NANC Representative cc: Ms. Marilyn Jones, DFO Ms. Deborah Blue Attachment 2 2 COMPTEL OBJECTION TO CERTAIN ASPECTS OF THE LNPA-WG IMPLEMENTATION PLAN COMPTEL hereby opposes the recommendation proposed by the Local Number Portability Administration Working Group (LNPA-WG) which, in certain instances, would require an Old Service Provider (SP) to process a response to an LSR for a Non-Simple Port within 4 hours. Specifically COMPTEL opposes the recommendations contained in section 3.1 DEFINITION OF A “BUSINESS DAY” and 3.2 RECOMMENDED REVISED NANC LNP PROVISIONING FLOWS that require an Old SP to respond to an LSR within 4 hours if the New SP requests a due date of 1-2 Business Days on the LSR, thereby labeling the port as a Simple Port. The language in those sections generally bases the Old SP’s required response time on what is labeled on the LSR in terms of Simple versus Non-Simple Ports, not on what the Old SP determines is actually the case. In addition, 3.1 DEFINITION OF A “BUSINESS DAY” also contains the following clarifying language, to which COMPTEL objects: “…[I]f there is no obvious indication that the port request is Non-Simple and was requested as a Simple Port with a requested 1-2 Business Day due date, but the Old SP determined that it is a Non-Simple Port, a response is due back to the New SP in four (4) hours…” I. LNPA-WG’s Recommendation Exceeds the Scope of the Task Assigned to the NANC The Council must consider the scope of the task that it was assigned by the Commission. Currently, as codified in Section 52.26(a) of the Commission’s Rules, 45 CFR 52.26(a), local number portability administration shall comply with the Report of NANC’s Local Number Portability Administration Selection Working Group, dated April 25, 1997 (Working Group Report) and its appendices, which are incorporated into the Commission’s rule. Step 7 of the Inter-Service Provider LNP Operations Flows – Provisioning - Figure 1 of Appendix B, states that the “Old Service Provider provides Firm Order Confirmation (FOC) to New Service Provider within 24 hours.” In the Commission’s Order, FCC Order 09-41, the Commission “…reduce[d] the porting interval for simple wireline and simple intermodal port requests,” requiring all entities subject to its LNP rules to complete such port requests within one business day.15 The Commission directed “the NANC to develop new LNP provisioning process flows that take into account this shortened porting interval.”16 The Commission did not reduce the porting intervals for Non- Simple ports, and the Order does not contain any language that authorizes the NANC to unnecessarily reduce inter-carrier communication timeframes in the provisioning process flows for Non-Simple ports. Additionally, since the LNPA-WG’s recommendation goes beyond that which was assigned to the NANC, affected carriers have not have been put on notice that the processes for Non- Simple ports would be altered. This calls into question the appropriateness of the consensus 15 FCC 09-41 at ¶ 1 (emphasis added). 16 Id at ¶ 10. Attachment 2 3 process administered by the LNPA-WG since carriers that process all or mostly Non-Simple ports may not have found it necessary to participate and weigh in on the discussions concerning process flows for Simple ports. II. The Impact of the Recommendation to the CLEC Community The LNPA-WG seeks to expand the scope of the Commission’s order and alter the Commission’s rules with regard to Non-Simple ports to the benefit of those providers that mislabel their port requests in the LSR. In carrying out its responsibilities, the role of the Council as a whole, and each individual NANC member is not only to adhere to the Commission’s mandates but to support certain policy objectives, including a policy “that NANP and LNP administration does not unduly favor or disfavor any particular industry segment…”17 A number of CLECs represented by COMPTEL, due to the nature of their businesses, process primarily Non- Simple ports because they mainly serve multi-line business customers and often rely on unbundled network elements. These carriers’ porting processes will already become more complex in order to comply with the Commission’s Order with regard to the Simple ports, due to the need to distinguish between Simple and Non-simple ports. This added burden, however, is likely to be significantly amplified by the increased number of port requests that would be generated solely as a result of the proposed rule. While at first blush it may seem that this burden would be lessened by the Old SP’s ability to respond with a Reject to a mislabeled Simple port request, in fact sending a Reject would actually increase the number of port requests the Old SP ultimately must handle. Every Reject will subsequently result in another port request, hopefully corrected with a proper due date, that must again be reviewed and processed by the Old SP. Whereas, if the Old SP was permitted to respond to the Non-Simple port request, whether or not it is labeled as such by the new SP, within the current 24-hour timeframe (as proposed in the CLEC Position Paper), the Old SP would be more apt to provide a FOC with a revised due date instead of a Reject, and the port request would not have to be resubmitted by the New SP and reprocessed by the Old SP, thereby eliminating the increase in the overall number of port requests. Also, to the extent the Old SP alternatively provides FOCs instead of Rejects to those New SPs who mislabel their Non-Simple LSRs, the rule as proposed by the LNPA WG would unjustly reward those New SPs who fail to make an effort to appropriately label their port requests over those who do make the effort. Such an outcome virtually eliminates any incentive for a New SP to conduct due diligence to determine if a port request is Simple or Non-Simple before submitting the LSR, placing all of the burden on the Old SP to make that determination and respond within 4 hours regardless. 17 NANC OPERATING MANUAL, version 2, Chapter I5 Members as Representative, p. 13, as modified Sept. 9, 2006.