WPC 2?BJZECourier3|j #o\  PC XP#HP LaserJet 4M (PCL)HPLA4MPC.PRSx  @\PX@ X-#o\  PCXP#2,qKXCourierTimes New Roman"i~'^:DPddDDDdp4D48dddddddddd88pppX|pDL|pp||D8D\dDXdXdXDdd88d8ddddDL8ddddX`(`lD4l\DDD4DDDDDDDDd8XXXXXX|X|X|X|XD8D8D8D8ddddddddddXdbdddpdXXXXXlX~|X|X|X|XdddldldD8DdDDDdplld|8|P|D|D|8dvddddDDDpLpLpLpl|T|8|\ddddddl|X|X|Xd|DdpL|Dd~4ddC$CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxH\dDXddddd8@d<@d<DDXXdDDxddzHxxHvppDXd<"dxtldpxxd<?xxx,>fx6X@`7X@7jC:, Xj\  P6G;XPic*.*HAR1RXSECG TimesTimes New RomanTimes New Roman Bold!`M:\WINAPP   @4 WP_CHAR WP_DEADCHARWP_22^`n  Z3|j CourierTimes New RomanTimes New Roman BoldTimes New Roman ItalicTimes New Roman Bold ItalicHP LaserJet 4M (PCL)HPLA4MPC.PRSx  @\PX@2KdKt tn"i~'^:DPddDDDdp4D48dddddddddd88pppX|pDL|pp||D8D\dDXdXdXDdd88d8ddddDL8ddddX`(`lD4l\DDD4DDDDDDDDd8XXXXXX|X|X|X|XD8D8D8D8ddddddddddXdbdddpdXXXXXlX~|X|X|X|XdddldldD8DdDDDdplld|8|P|D|D|8dvddddDDDpLpLpLpl|T|8|\ddddddl|X|X|Xd|DdpL|Dd~4ddC$CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxH\dDXddddd8@d<@d<DDXXdDDxddzHxxHvppDXd<"dxtldpxxd"i~'^:DpddȨDDDdp4D48ddddddddddDDpppd|Ld|pȐD8DtdDdpXpXDdp8Dp8pdppXLDpdddXP,PhD4htDDD4DDDDDDdDp8dddddȐXXXXXJ8J8J8J8pddddppppddpddddzpdddXXhXXXXXdddhdptL8LpLDLpphhp8ZDP8pppddƐXXXpLpLpLphfDtppppppȐhXXXpDppLDd4ddC6CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxHjdDddddddfx6X@`7X@O7jC:, Xj\  P6G;XPPRdW, \  P6G;PQRdW,L4  pG;R7nC:,Xn4  pG;X\W!@(#,9h@\  P6G;hP\]5hC:,-Xh*f9 xr G;XX6jC:,DLXj9 xOG;X<R&HHH,D,H6X@`7h@         2 X-#o\  PC XP#$// NPRM Toll Free Service Access Codes, FCC 95419//$ RECORD ONLY  FN  ` `  hh,Vpp FN FCC No. 95419  Xv-` `  hh,Vpp#o\  PC XP##XP\  P6Q XP#  #o\  PC XP###\  PC P# #o\  PC XP#+J #XP\  P6Q XP#Before the [ FEDERAL COMMUNICATIONS COMMISSION  XH-Washington, D.C. 20554 #o\  PC XP# à  X - #XP\  P6Q XP#In the Matter of hh,V)  X -Toll Free Service Access Codeshh,V)CC Docket No. 95155  X -  NOTICE OF PROPOSED RULEMAKING ă  X-l à  Xy-  Xb-Adopted: October 4, 1995hh,VReleased: October 5, 1995  X-Comment Date: November 1, 1995  X-Reply Date:  November 15, 1995 By the Commission:  X-! TABLE OF CONTENTS ` `  hh,  X|- Paragraph No.  Xe-  XN-X` hp x (#%'0*,.8135@8:_ yD X-#o\  PC XP#э Switches with SSPs ("switch signaling points") have SS7 capability and will query the database for toll free number information. Switches without SSPs must be able to route the new toll free code to an SSP. Those nonSSP switches must be able to distinguish a toll free number from a POTS ("plain old telephone system") number so that: (1) the toll free number is routed to the SSP switch that will perform the database query; and (2) the proper billing record is generated and the called party, rather than the calling party, will be charged  XG-for the toll free call. See supra note 13 for a further discussion of SS7 and SSPs.  Since the major switch vendors have already committed to developing the software and, in many cases, have already developed the software necessary to support all of the reserved toll free codes, we do not anticipate any technical obstacles to this proposal. We believe that having the software available in all switches will greatly reduce implementation schedules needed for additional toll free codes. When the next toll free code is needed, only hardware upgrades and testing will be necessary before the new code is available for general use. We seek comment on this tentative conclusion and on whether the February 1997 deadline is reasonable.  X- 30.` ` We do not consider the situation we face in 888 implementation, where some of the LECs are routing calls using the new 888 code through a tandem and calls using the 800 code through an end office, a viable solution for future toll free codes. We believe that routing the calls using new codes through a tandem rather than an end office is both inefficient and unnecessarily costly to the interconnecting carriers that have circuits carrying all their 800 calls from LEC end offices. We also believe that allowing different routing schemes would undermine the goal of treating all toll free codes the same. If the goal to install the software to support all toll free codes in all toll free switches is met, we see no reason to allow the routing of new codes to be done any differently than the routing of"  >0*((\" previous codes. We expect, for example, that 800 calls as well as 888 and subsequent toll free code calls, will be routed by the LEC offering originating access for an 800 call over the  X-same trunk groups connected to their interconnecting carriers.]?HD XK-#o\  PC XP#э#XP\  P6Q XP# LECs and their interconnecting carriers will link their networks at either a LEC access  X4-tandem or a LEC end office. The choice of network topology, i.e., whether to use access tandems or end offices, is generally one made by the interconnecting parties based on distance between the two carriers and the amount of traffic expected to flow between them. For example, AT&T may decide to interconnect at an end office in downtown Chicago because of high traffic volume, but may decide to connect to an access tandem in a smaller, less populated area where the volume of traffic is lower. Interconnecting carriers may be IXCs, competitive access providers ("CAPs"), wireless carriers, or other independent LECs.] We tentatively conclude that each toll free code should meet the call setup time requirements established in the 800  X-Database proceeding.@D X--#XP\  P6Q XP#э See 800 Reconsideration Order, 6 FCC Rcd 5421. In that Order, the Commission stated that, by March 1, 1995, no 800 traffic for the RBOCs or GTE could experience an access time of greater than five seconds, and the mean access time for all 800 traffic carried by these carriers had to be 2.5 seconds or less.  We seek comment on this proposal.  Xv-` ` 5. Tracking Toll Free Number Usage   XH- 31.` ` To promote the efficient development of the toll free market and the efficient use of toll free numbers, we tentatively conclude that more comprehensive information on the toll free market and on number usage should be publicly available. In general, the availability of additional information reduces uncertainty, facilitates planning, and helps companies minimize costs in a competitive economy. In addition, better information about toll free  X -number utilization would permit more effective analysis of anticipated exhaust.&A D D X-#o\  PC XP#э Under current industry guidelines, resource exhaust is defined as "an emergency/ situation where the industry has agreed to invoke conservation measures to delay exhaustion  X-of the toll fee [sic] number resource." See Industry Guidelines at page iv. The conservation mode is invoked by industry when relief will not be available at the projected time of 90%  Xn-fill rate of the current toll free code. Id.& We propose that the administrator of the SMS/800 database, currently DSMI, be required to submit periodic reports to the Commission on toll free number utilization, and we seek comment on the nature and the frequency of these reports. We tentatively conclude that the reports should include information of the following type for each toll free service access code: (1) the quantity of numbers that are in spare status and available for use; (2) the quantity of numbers that are in working status and are in use; (3) monthly usage, or the quantity of numbers assigned to working status each month; and (4) estimated time remaining before that code is exhausted, along with the method used to calculate the estimated time remaining. The report should also set forth the quantity of numbers assigned to the various categories as set forth in"A0*(("  X-the industry guidelines.BD Xy-#XP\  P6Q XP#э See supra paragraph 17 for an explanation of the categories contained in 2.4 of the  Xb-Industry Guidelines. We note that the total quantity of toll free numbers assigned monthly from the spare pool of numbers is available monthly and is published semi X-annually.CbD X-#XP\  P6Q XP#э The information is available in the public reference room maintained by the Industry  X-Analysis Division ("IAD") and is published in #XP\  P6Q XP#Trends in Telephone Service, an IAD  X-publication that tracks the usage of toll free numbers on a semiannual basis. ĸ Even with this report, the method described above to project 800 exhaust may not be sufficient. We also seek comment on whether additional information on the toll free market should be reported to the Commission and made publicly available. Such information might include, for example, information on usage by type of toll free number assignment, such as business, personal, or access. Accordingly, we propose to direct the Chief of the Common Carrier Bureau to establish the reporting requirements necessary to make available timely information on the use of toll free numbers.  X - C.Warehousing of Toll Free Numbers  X -  X - 1.` ` Background  X -   X - 32.` ` RespOrgs are currently limited in the quantity of toll free numbers they may  X -reserve at any one time by voluntary, good faith compliance with industry guidelines.D D X=-#o\  PC XP#э #o\  PC XP##XP\  P6Q XP#See Industry Guidelines at 2.2.5 ("[a]t any given time, each Resp Org entity can have up to 1000 numbers reserved or 15% of its total quantity of working 800 [s]ervice numbers, whichever is greater").  Prior to the introduction of our conservation measures, the rapid depletion of 800 numbers had prompted growing concern that, despite industry guidelines, 800 numbers were being  Xb-warehoused!Ebh D X{-#o\  PC XP#э #XP\  P6Q XP#The term warehousing is used to describe a RespOrg obtaining toll free numbers from the database without having an actual subscriber for whom those numbers are being reserved. Warehousing results in the RespOrg's acquiring and holding scarce toll free numbers beyond the RespOrg's immediate needs and prevents the distribution of those numbers to RespOrgs that have actual subscribers needing working toll free numbers.! rather than immediately assigned. We tentatively conclude that warehousing of toll free numbers by communications service providers subject to Title II of the Communications Act is an unreasonable practice, and, thus, inconsistent with the public interest. We seek comment on this tentative conclusion and ways to eliminate warehousing, as suggested below.  X- 2.` ` Proposals  X-   X- 33.` `  In response to the rapid depletion and imminent exhaust of 800 numbers, the"E0*((R" Commission initially reduced the percentage of toll free numbers a RespOrg could reserve  X-from 15% of its working numbers to 3%.{FD Xb-#XP\  P6Q XP#э See Wallman Letter of June 13, 1995. { The Bureau eliminated the 3% limit, however,  X-because the weekly take rate would never rise above 28,000 toll free 800 numbers per week.CGyD X-#o\  PC XP#э #XP\  P6Q XP#See Letter from Kathleen M.H. Wallman, Chief of the Common Carrier Bureau, FCC to Michael Wade, President, Database Service Management, Inc., dated June 26, 1995 ("Wallman Letter of June 26, 1995").C We seek comment on whether once the Commission is no longer limiting the total quantity of toll free numbers that may be drawn from the database, we should impose a permanent cap on reserved numbers of 3% or some other number less than 15%, in an effort to prevent a large  Xv-pool of toll free numbers from remaining in reserve status (i.e., being warehoused). We also seek comment on what remedy the Commission would have against a RespOrg found to be warehousing toll free numbers. Commenters should be specific as to the nature of any recourse and the means by which such recourse would be enforced. Moreover, we request  X -comment on what, if any, penalty should be imposed if a customer is found to be hoardingHv D X-#o\  PC XP#э #XP\  P6Q XP#Hoarding occurs when a toll free subscriber acquires more numbers from a RespOrg than it intends to immediately use. This practice protects the subscriber in the event of a toll free number shortage, but it results in toll free numbers remaining inactive and unavailable for subscribers in need of working numbers. We note that the Commission has received a  Xk-number of complaints about hoarding of 800 numbers. See Options from 800 National  XT-Product Team, dated June 6, 1995.  toll free numbers. We tentatively conclude that the Commission has the authority to penalize RespOrgs for violating any warehousing controls the Commission may adopt, and that an  X -appropriate fine may be imposedI : D X-#XP\  P6Q XP#э See, e.g., 47 U.S.C. 502 and 503; 47 C.F.R. 1.80. and even decertification of the entity as a RespOrg may be necessary. We seek comment on this tentative conclusion and on whether other remedies may be appropriate.  Xy- 34.` ` To understand why 800 numbers have been consumed so much more quickly than the industry had initially anticipated, the Bureau has been investigating who was taking these numbers and for what uses. As a result of the Bureau's investigation, we find that toll free subscribers include business subscribers, residential or personal subscribers, and access subscribers, a term we use to describe those using voice mail and paging services. In a further effort to prevent warehousing of toll free numbers, we propose requiring RespOrgs to certify to the accuracy of certain subscriber information. We tentatively conclude that all RespOrgs should certify to the Commission that: (1) there is an identified subscriber who has agreed to be billed for service associated with each toll free number requested from the database; and (2) there is an identified, billed subscriber before switching a number from  X-reserved or assigned to working status. There are allegedly instances in which subscribers may claim working status when, in fact, the toll free number is not actually working. The"| I0*(("  X-proposed certification would be required under penalty of false statementhJD Xy-#XP\  P6Q XP#э Persons making false statements can be punished by fine or imprisonment under the  Xb-Communications Act. See, e.g., 47 U.S.C. 220(e). Title 18 also provides penalties for false  XK-statement. See 18 U.S.C. 1001. h and would require that an officer of the company provide name, address, telephone, and facsimile numbers. To the extent that a subscriber is itself subject to regulation under Title II, we propose that it would also be required to meet the same certification requirements. We seek comment on this certification proposal and on whether certification should be required on a monthly, quarterly, or yearly basis. We ask parties to address the extent to which the information requested is proprietary.  X_-  XH-D.Vanity Numbers  X1-  X - 1.` ` Background  X -  X - 35.` ` A vanity number is a telephone number for which the letters associated with the number's digits on a telephone handset spell a name or word of value to the number holder. Examples of such vanity numbers include "1800THECARD" and "1800 X -FLOWERS." For purposes of this NPRM, vanity numbers also include any numbers in which the holders have a particular interest, be it economic, commercial, or otherwise. For example, certain manufacturers dedicate toll free numbers for emergency recall situations or consumer inquiries. As new toll free codes become available, a question arises as to whether the current holder of an 800 vanity number should have a right of first refusal or other priority on the equivalent number drawn from a new toll free code. Companies may have a financial interest in being able to reserve these equivalent vanity numbers because of their high visibility, consumer recognition, and the confusion that may ensue, for example, if one subscriber uses the toll free number "1800THECARD" and a competitor uses the toll free number "1888THECARD." Some 800 number holders may have invested substantial resources in  X-advertising the number and establishing a reputation for it.l K KD X-#o\  PC XP#э See, e.g., Letter from J. C. Reed, Government Employees Insurance Company to Reed Hundt, Chairman of the FCC, dated June 5, 1995; Letter from Christopher G. McCann, 1800FLOWERS to Reed Hundt, Chairman of the FCC, dated July 11, 1995; Letter from John C. Hartman, 800Discount Club, Inc. to Kathleen M.H. Wallman, Chief of the Common Carrier Bureau, FCC, dated July 24, 1995; Letter from Arley M. Clark, Bass Pro Shops to Reed Hundt, Chairman of the FCC, dated July 25, 1995; Letter from Robert Jenny, WarnerLambert Company to Reed Hundt, Chairman of the FCC, dated July 25, 1995; Letter from Brooke R. Weisleder, Weisleder TeleCommunications, Inc. to Reed Hundt, Chairman of the FCC, dated July 26, 1996; Letter from Eddie Aldredge, Selectel to Reed Hundt, Chairman of the FCC, dated July 26, 1995; Letter from William A. Elmer, HTH Inc. to Reed Hundt, Chairman of the FCC, dated July 26, 1995; Letter from Linda Thompson Orfanos, Kemper National Insurance Companies to Reed Hundt, Chairman of the FCC, dated July 27, 1995;"&J0*((&" Letter from Jane A. Murphy, Philbrick's Sports Super Store to Kathleen M.H. Wallman, Chief of the Common Carrier Bureau, FCC, dated July 28, 1995; Letter from Mark J. McSweeney, New England Serum Company to Reed Hundt, Chairman of the FCC, dated July 28, 1995; Letter from Charles P. Cannata, The Money Store to Reed Hundt, Chairman of the FCC, dated July 28, 1995; Letter from Kerry P. Lauricella, Repairs, Inc. to Reed Hundt, Chairman of the FCC, dated July 31, 1995; Letter from William M. Bullard, Peachtree Fabrics, Inc. to Reed Hundt, Chairman of the FCC, dated August 2, 1995; Letter from Jeffrey A. Diskin, Hilton Hotels Corporation to Reed Hundt, Chairman of the FCC, dated August 3, 1995; Letter from Robert E. Dirks, Hilton Hotels Corporation to Reed Hundt, Chairman of the FCC, dated August 3, 1995; Letter from John C. DuBose, Barnett Bank to Reed Hundt, Chairman of the FCC, dated August 3, 1995; Letter from Eugene D. Gauthreaux, Terminix to Reed Hundt, Chairman of the FCC, dated August 4, 1995; Letter from John L. Brinker, Hilton Hotels Corporation to Reed Hundt, Chairman of the FCC, dated August 7, 1995; Letter from Christine Brosnahan, Hyatt Hotels & Resorts to Reed Hundt, Chairman of the FCC, dated August 7, 1995; Letter from Jeffery Martin, American Magnetic Media Inc. to Reed Hundt, Chairman of the FCC, dated August 7, 1995; Letter from Sam L. Perry, Hilton Reservations Worldwide to Reed Hundt, Chairman of the FCC, dated August 7, 1995; Letter from Ronald D. Ryan, Ryan International Airlines to Reed Hundt, Chairman of the FCC, dated August 8, 1995; Letter from Larry E. Tramel, Brinks Home Security to Reed Hundt, Chairman of the FCC, dated August 8, 1995; Letter from Julie Stewart, Rosenbluth International to Reed Hundt, Chairman of the FCC, dated August 9, 1995; Letter from Bob Heise, Norwest Technical Services to Reed Hundt, Chairman of the FCC, dated August 10, 1995; Letter from Vincent P. Keenan, Jr., USA Loan, Inc. to Reed Hundt, Chairman of the FCC, dated August 10, 1995.l At this time, we have no way of"hK0*((" knowing how many 800 number holders would want corresponding 888 numbers. Our efforts to encourage the industry to provide such information have not yielded any response. In the end, we must balance goodwill and the holder's interest in a vanity 800 number against the need to manage a limited resource.  X- 36. ` ` The Commission has characterized telephone numbers as a public resource that  Xv-is not the property of the carriers.LvhD X-#XP\  P6Q XP#э NANP Order, CC Docket No. 92237, FCC 95283 (adopted July 13, 1995). The Commission has further stated that carriers "do not `own' codes or numbers, but rather administer their distribution for the efficient operation of  XH-the public switched telephone network." MHD X"-#XP\  P6Q XP#э The Need to Promote Competition and Efficient Use of Spectrum for Radio Common  X"-Carrier Services, Memorandum Opinion and Order, 59 Rad. Reg. (P&F) 1275, 1284 (1986).  With respect to our jurisdiction over numbering issues, we have recently stated that we may assert jurisdiction over all numbering issues that are interstate in nature or if the facts of a particular situation render it "not possible to  X -separate the interstate and intrastate components of the asserted regulation."}N D Xi'-#o\  PC XP#э Ameritech Order, 10 FCC Rcd 4596.}" fN0*(( "Ԍ X-ԙ 37.` ` Bellcore, the current administrator of the North American Numbering Plan ("NANP"), assigns numbers in accordance with principles and guidelines established through industry consensus procedures. Like the Commission, Bellcore has characterized numbers as a public resource for use by individuals or entities, specifically denying that administrative  X-assignment of a number implies ownership by either the assignor or assignee.OD X-#o\  PC XP#э See Personal Communications Services N00 NXX Code Assignment Guidelines, para. 2.10 (April 7, 1995 Revision) ("PCS N00 NXX code(s) are a public resource and administrative assignment of the codes does not imply ownership of the resource by the entity performing the administrative function, nor does it imply ownership by the entity to which it is assigned"). The most  X-recent version of the industry assignment guidelines for 800 numbersPD X[ -#o\  PC XP#э See supra note 41 for language from the Industry Guidelines prohibiting the buying, selling, brokering, bartering, or releasing for a fee of 800 numbers, and the existing  Xv-assignment guidelines for 555 NXX codesQvD X-#o\  PC XP#э See 555 NXX Assignment Guidelines, para. 2.9 (April 7, 1995 Revision).   X-XAdministrative assignment of the 555 numbers by an entity does not imply ownership of the resource by the entity performing the administrative function, nor does it imply ownership by the entity to which it is assigned. The assignee has the right to use an assigned number in accordance with these guidelines. (# present a similar view.  XH- 38.` `  From the consumers' perspective, vanity numbers are portable numbers in which businesses have invested substantial resources. Certain subscribers may even think of toll free numbers as their property. Telecommunications tariffs and rules on file with state public service commissions, however, routinely recite that subscribers do not own their  X -telephone numbers._R D X-#o\  PC XP#э See Burris v. South Central Bell Telephone Company, 540 F. Supp. 905, 907 (S.D. Miss. 1982) ("[t]he subscriber has no property right to the telephone number or any other call number designation associated with services provided by the [telephone] company"). _ While certain carriers have drafted tariffs purporting to grant to those  X -carriers exclusive property interests in particular blocks of telephone numbers,S D X-#o\  PC XP#э Id. at 908 ("[t]elephone numbers are the property of the [telephone] company and are  X-assigned to the service furnished the subscriber"). no court has yet ruled on the legality of such tariff provisions.  X- 39.` ` Courts that have ruled on the intellectual property nature of a telephone number have held that a term spelled out by a vanity number may be protected as a trademark or"y)S0*(("  X-service mark, provided that it meets the statutory requirements for trademark protection.^TD Xy-#o\  PC XP#э See  American Airlines, Inc. v. 1800AMERICAN Corporation, 662 F. Supp. 673 (D. Ill. 1985) (granting American Airlines injunction against travel agency's marketing of the  XK-term "1800American").  ^ We note, however, that these holdings have been limited to the question of whether the mnemonic  X-term, rather than the underlying number, is entitled to trademark or service mark protection.UKD X-#o\  PC XP#э See, e.g., Murrin v. Midco Communications, Inc., 726 F. Supp. 1195, 1200 (D. Minn.  X-1989) ("[t]he parties dispute whether a telephone number itself is protectible as a trademark. For the purpose of this motion, it is not necessary to resolve that question of law").  This fact supports the view that an ownership interest in the term associated with a vanity number does not imply the existence of any ownership interest in the underlying number.  Xv- 2.` ` Scope of Vanity Numbers  X_-  XH- 40.` ` In order to design a fair and reasonable allocation methodology for numbers drawn from new toll free code databases, we must ascertain the potential number of equivalent vanity numbers that might be reserved for 888 and subsequent toll free codes. We ask parties to identify the total number of existing vanity numbers or a method for ascertaining how many numbers are or should be regarded as vanity numbers. This information could help us to assess fully the viability of recognizing a right of first refusal, as discussed below, for equivalent 888 and subsequent code vanity numbers and the impact such a right of first refusal will have upon competition. For example, if only a small percentage of 800 numbers are vanity numbers, we must assess whether establishing a rule regarding a right of first refusal would serve the public interest. Conversely, if the percentage of 800 vanity numbers is large, we must also assess whether the benefits of establishing such a rule outweigh the costs it would impose, the most obvious of which is the rapid immediate consumption of numbers from new codes with little assurance that these numbers will be intensively used. In the event that we deny a right of first refusal, we also seek comment on whether federal trademark law alone will sufficiently protect the current holders of 800 vanity numbers against new code assignments that may produce the same vanity acronym.  X- 3.` ` Proposals  X-` ` a. Right of First Refusal  X|-  Xe- 41.` ` A right of first refusal would permit the holder of that right to have a superior right visavis all other interested parties to receive the equivalent 888 number. We therefore seek comment, first, on whether the current holders of 800 numbers should be permitted to exercise such a right of first refusal. Second, if a right of first refusal is allowed, we seek comment on whether subscribers should be permitted to exercise this right free of charge or should be required to pay for the right of first refusal through, for example, a onetime fee"U0*((" assessed on the subscriber or through a competitive bidding process. Third, if subscribers are required to pay for a right of first refusal, we seek comment on what entity should receive the  X-money and whether it should be earmarked for particular uses, e.g., administration of the DSMI database or otherwise for the operation of the North American Numbering Plan. We also seek comment on the Commission's statutory authority for promulgating such measures.  Xv- 42.` ` We note that we have received numerous letters from current holders of 800  X_-numbers regarding the right of first refusal.nV_D X-#o\  PC XP#э See supra note 75.n These letters indicate two primary areas of concern: the need to block other entities' claims to the equivalent 888 number so as to prevent the possibility of fraud or customer confusion, and the affirmative desire to acquire the equivalent 888 numbers to perpetuate consumer association of the business with those numbers. It should be noted that if a significant fraction of 800 number holders wanted the 888 analogue, there would be an array of numbers immediately reserved, bringing the new code that much closer to exhaust. The problem would then roll from 888 to 877, and so forth. We seek comment, therefore, on the effect of any such right of first refusal on our goal that toll free numbers be used in a fair, efficient, and orderly manner. Finally, we seek  X-comment on the application of a right of first refusal to subsequent new toll free codes (e.g., 877, 866, and so on).  XK- 43.` ` Moreover, a decision to grant a right of first refusal on equivalent toll free numbers may also have international effects. We recognize that different countries may ascribe different proprietary rights to telephone numbers. As a result, we seek comment on the impact of allowing such a right of first refusal upon members of the NANP. We also ask parties to address whether a right of first refusal is consistent with international intellectual property laws or any other related international issue. Comment is specifically requested on issues relating to "free phone" initiatives or any other numbering initiatives of the International Telecommunications Union ("ITU"). We intend to continue to coordinate with other countries to ensure that toll free numbers are used in an efficient manner.  Xe-#o\  PC XP#` ` b. Assignment Based on Industrial Classification  XN-#o\  PC XP#  X7- 44.` ` To address the question of fraud, we seek comment on an alternative to a right of first refusal that would bar any competitor of the current holder of an 800 number from obtaining the equivalent 888 number, as well as the equivalent number in any subsequent toll free code. Under this approach, a numerical code could be assigned to each service and industry in the economy. The current holder of an 800 number with commercial concerns related to assignment of the equivalent 888 number could report its code to its 800 Service Provider, which in turn would be required to report the code to DSMI. DSMI would then enter the codes in the SMS database. A subscriber seeking to obtain an 888 number would also report its code to its RespOrg. The RespOrg would report the subscriber's code to DSMI when attempting to reserve the 888 number from the SMS database. DSMI would then"h$yV0*((F#" query the database to determine the code associated with the current holder of the equivalent 800 number. If the 888 applicant and the current holder of the equivalent 800 number shared the same code and were, therefore, competitors, the 888 applicant would not be permitted to obtain the equivalent 888 number. Under this alternative, the current holder of an 800 number would similarly be barred from obtaining the equivalent number in any new toll free code. The reporting requirement would apply to all toll free service subscribers in all toll free codes. That is, when a new subscriber in the 888 code reported its code, no entity with the same code could obtain the equivalent toll free number in the 877 code or any subsequent toll free code.  X - 45.` ` Standard industrial classification ("SIC") codessWv D X -#o\  PC XP#э See Executive Office of the President, Office of Management and Budget, Standard  X| -Industrial Classification Manual (1987). The United States Bureau of the Census classifies each service and industry in the economy with a two through sevendigit SIC code. Codes with a greater number of digits provide more detailed product classifications. For example, the SIC code "20" signifies "food and kindred products," while the SIC code "2095" signifies  X -"roasted coffee." Id. at 69, 82. s could be used to categorize  X -services and industries.=X D X-#o\  PC XP#э It should be noted that holders of personal toll free numbers would not be assigned an SIC code, nor would holders of toll free numbers for paging services. That is, there would be no restrictions on those equivalent toll free numbers.= We believe that this proposal would serve the dual purposes of: 1) allaying the fears of current 800 number subscribers that a competing business would obtain the equivalent number in a new toll free code; and 2) promoting the efficient allocation of the toll free number resource. We seek comment on the feasibility of this approach, as well as its advantages and disadvantages. We ask commenters to address the reporting requirement and whether it would impose an undue burden on subscribers, RespOrgs, 800 Service Providers, and/or DSMI. We also seek comment on the specificity required in SIC codes. For example, it may be that a twodigit code does not provide enough specificity,  XK-while a fourdigit code provides more specificity than is necessary.nYK D X-#o\  PC XP#э See supra note 87.n Finally, we seek comment on how best to accommodate conglomerates that may fit within multiple classifications and whether such a proposal would delay the introduction of new toll free codes because of technical changes that would have to be made to the SMS database.  X- ` ` c. Miscellaneous Proposals  X- 46.` `  Further, we seek comment on a number of additional alternatives to permitting the right of first refusal on equivalent toll free vanity numbers. First, we could require the administrator to release those 888 numbers identified as equivalent toll free vanity numbers at the end of the toll free assignment pool. For example, "1888THECARD" would not be assigned until a substantial percentage of the 888 pool was depleted. Second, we could"N: Y0*((" require carriers to provide a transitional gateway intercept during the change to a new toll free code. That is, when a consumer called either "1800THECARD" or "1888THECARD," he would first reach an intercept message that would help him clarify which entity he wanted to reach before the call was completed. Third, we may wish to require a partitioning of toll free service, leaving business entities and the majority of vanity number holders to use the 800 code and assigning a specific toll free code to subscribers for personal and pager use. Of course, such partitioning must be consistent with the Communications Act and may not be  X_-unreasonably discriminatory toward any particular class of carrier.$Z_D X-#Xj\  P6G; XP#э But see Ameritech Order, 10 FCC Rcd 4596 (Commission found unreasonable Ameritech's overlay plan to provide area code relief by restricting cellular and paging carriers to particular area code).$ We seek comment on the  XH-advantages and disadvantages, as well as the feasibility, of each of these options.  X  X -X 4.X` ` High Volume Numbers (#`  X - 47.` ` Many toll free numbers receive a high volume of calls each day. For example, a telemarketing firm may receive through one 800 number all of its calls, which may amount to thousands of calls per day. A toll free subscriber with a 7digit number in one toll free code that corresponds to a high volume 7digit number in another toll free code might receive a large quantity of misdialed numbers. The chance of a substantial number of misdialed calls, particularly soon after the introduction of the new toll free code, appears to be great. This situation could harm both parties involved. One subscriber will be inconvenienced by receiving unwanted calls for which it will have to pay or, at minimum, work with its 800 service provider to identify and receive a delayed credit. The holder of the number the caller was actually trying to reach may lose business. We seek comment on whether there should be some protection for the new toll free subscriber who obtains a number that translates to a high volume number in another code. We also seek advice on how such a number might be identified in the SMS database.  X-   E.Toll Free Directory Assistance  X-  X|- 48.` ` 800 Directory Assistance ("DA") is currently a monopoly service provided by  Xe-AT&T.c[veKD Xa -#o\  PC XP#э We have previously encouraged competitors to enter the toll free Directory Assistance  XJ!-market. See 800 Order, 4 FCC Rcd 2824, paras. 104106. On May 8, 1995, Southern New England Telephone Company ("SNET") filed a petition for a declaratory ruling asking the Commission to require AT&T to enter into reciprocal compensation arrangements with other carriers that wish to offer 800 Directory Assistance. While SNET's petition is related to this proceeding, we defer its consideration at this time. c#o\  PC XP# We tentatively conclude that 800 DA and 888 DA, and eventually DA for subsequent toll free codes, should be combined into interchangeable toll free DA service and should be open to competition. By combining 800 DA and 888 DA, callers will be able to"7 [0*(({" dial either "18005551212" or "18885551212" and access DA for all toll free numbers. Customers would find this system easy to use because it would be accessible and not confusing. We seek comment on this proposal and on the economic reasonableness and technical feasibility of combining the provision of DA. Commenters are also asked to address a proposal to not assign "8885551212," which would constitute the 888 DA number, until toll free DA issues have been resolved.  X_- F.Administration of the Service Management System  XH-  X1- 49.` ` DSMI is currently the primary administrator of the toll free data base, SMS/800. In response to industry concerns, Bellcore established DSMI for the purpose of administering the SMS/800, and subcontracted functions requiring access to proprietary customer information to a neutral third party, Lockheed IMS. Bellcore also recently completed a procurement process for the SMS/800 hardware vendor. The Bureau concluded that it was unnecessary for the Commission to intervene because steps had been taken to  X -ensure neutrality of the procurement process.\ D X -#o\  PC XP#э See  Letter from Kathleen M.H. Wallman, Chief of the Common Carrier Bureau, FCC  X -to various parties, dated June 21, 1995. In addition, the RBOCs have announced plans to sell Bellcore, which is the parent company of DSMI. We seek comment on whether DSMI should continue to administer the toll free databases or whether another entity, such as the North American Numbering Plan Administrator or another neutral party should administer the toll free databases. Further, we ask parties to comment on whether the administrative  X4-database functions currently performed by DSMI and Lockheed]4bD XG-#o\  PC XP#э See supra para. 6 for a description of the functions performed by DSMI and Lockheed. should be performed by independent third parties not affiliated with Bellcore, the RBOCs, or current owners of the  X-regional databases.n^D X-#o\  PC XP#э See supra note 14.n  X- G.Public Awareness and Industry Participation  X-  X- 50.` ` Both the Commission and the telecommunications industry have undertaken educational initiatives regarding the implementation of toll free 888 in an effort to assure that  X|-the public is fully informed about the introduction of new toll free dialing codes. On June 15, 1995, the Bureau initiated a series of biweekly industry meetings that will be held until toll free 888 has been deployed and is portable. The first meeting revealed that industry has undertaken several public relations initiatives, including hiring public relations firms to conduct multimedia campaigns, issuing monthly advisories to sales staff, conducting press interviews, and issuing press releases. We seek comment on whether additional efforts to improve public awareness should be undertaken. Commenters are asked to address who should conduct such public awareness efforts, who should pay for them, and what form such efforts should take." ^0*(("Ԍ X-ԙ H.Circuit Breaker Model  X-  X- 1.` ` Background  X-  X- 51.` ` In addition to the various proposals described above, there may be other methods by which the Commission can effectively oversee the allocation of toll free numbers. Circuit breakers, for example, describe predetermined, cross market trading halts in the computer program trading of securities. They are designed to restrict program trading in  XH-volatile markets by restricting access to computerized trading systems_ HD X -#o\  PC XP#э Circuit breakers were adopted by the stock and futures exchanges in the wake of the stock market crash of 1987 and, more specifically, in response to a report issued by a financial markets working group established by the President in March 1988 to examine the causes of the October 1987 crash. The stock and futures exchanges adopted exchange rules incorporating a trading halt of one hour if, within a single day, the Dow Jones Industrial Average ("the Dow") declines 250 points from its previous day's closing level, and a trading halt of two hours if the Dow declines an additional 150 points (or a total of 400 points below the previous day's closing level). These exchange rules were then approved by the Securities and Exchange Commission ("SEC") and the Commodities Futures Trading Commission  X-("CFTC"), respectively, in 1988. See Securities Exchange Act Release Nos. 26386 (Dec. 22,  X-1988), 53 Fed. Reg. 52904; and 26198 (Oct. 19, 1988), 53 Fed. Reg. 41637; see also SEC, CFTC Approve Coordinated Trading Halts in Volatile Markets, 20 Sec. Reg. & L. Rep. (BNA) No. 41, at 1580 (Oct. 21, 1988).  and by allowing the markets to cool off by suspending trading for short periods of time. It may be possible to adopt circuit breaker rules to control consumption of toll free numbers.  X - 2.` ` Proposals  X - 52.` ` Following the accelerated consumption of 800 numbers and the need for the Commission to impose emergency conservation measures, we tentatively conclude that a circuit breaker rule for toll free numbers would serve the public interest. We do not believe, however, that the exact model used in today's stock and future exchanges will be directly applicable to the toll free number assignment process. Our intent is to adopt a model that affects the toll free assignment rate as the circuit breaker rules affect the securities market  X4-(i.e., regulating consumption).  X- 53.` ` One proposed model would be executed once it is announced that the exhaust date for the current toll free code is near. The exhaust date would be established based on the rate at which toll free numbers are reserved per week and would serve as the trigger to start planning implementation for the next code. The availability date for the next toll free code  X-(e.g., the date on which the code is available for toll free subscriber traffic) should be at least four months before the established exhaust, or trigger date. When the trigger date is reached, a weekly consumption rate equal to the weekly average quantity of numbers obtained for the"| e _0*((" previous twelve months would be established for each RespOrg. This rate would be each RespOrg's circuit breaker threshold and would not change during the planning period. If the RespOrg exceeded the circuit breaker threshold, it would be limited to onehalf its weekly average consumption rate until one month after the new code is activated.  X- 54.` ` We propose that there be a certification process for each RespOrg to ensure that its equipment can support a circuit breaker model such as the one discussed above. Further, we expect the SMS database to enforce any circuit breaker models adopted. We seek comment on this proposed circuit breaker model. We also seek comment on the costs  X1-associated with development and support of this circuit breaker model by both the RespOrgs and the SMS administrator.  X - 55.` ` A second proposal would have a circuit breaker rule apply to the daytoday operation of the SMS/800 database. The rule would apply to individual RespOrgs and would be based on the monthly rate of toll free number consumption. Each RespOrg's rate of consumption would be computed by averaging the five days with its highest rate of consumption during the previous month. If the RespOrg removed three times that rate in a single day, the circuit breaker rule would take effect. For example, assume that the past month had 20 working days, and that RespOrg A took 100 numbers each day for ten days, 200 numbers for two days, and 50 numbers for eight days. The five days with the highest consumption would be the two days on which RespOrg A took 200 numbers and three of the days on which RespOrg A took 100 numbers. The average rate of consumption for those five days would be 140 numbers. So, if RespOrg A took more than three times that average rate of consumption in a single day, or 420 numbers, RespOrg A would only be permitted to take 140 numbers per day for a period of one or two weeks. We believe that such a circuit breaker rule would have many benefits, including: (1) promoting efficient use of toll free numbers; (2) preventing warehousing; and (3) preventing RespOrgs with high speed modems from reserving large blocks of toll free numbers in rapid sequence. We seek comment on this proposal. We also seek additional proposals for circuit breaker models, as well as modifications to the proposals presented here. We believe that circuit breaker rules provide a  XN-long range, proactive approach to the problem of rapid depletion of toll free numbers. We ask, however, that commenters address whether other conservation proposals contained in this  X -Notice of Proposed Rulemaking, such as the proposals that would reduce the amount of time  X -a number is held in a status other than working,` D X -#o\  PC XP#э See supra paras. 1719 for a discussion of proposals to reduce lag time. render circuit breaker rules unnecessary.  X-I.Tariffs  X!-56.` ` So that 888 service can be offered as quickly as possible, we take this opportunity to seek comment on the tariffing aspect of deploying a new code. We anticipate that the majority of tariffing issues will arise with regard to modifications to the LECs' 800"#!y`0*((e""  X-database access tariffs.UaD Xy-#o\  PC XP#э Although the IXC tariffs contain many references to 800 service, the IXCs are either nondominant carriers that file tariffs on one day's notice or, in the case of AT&T, offer 800 service as a streamlined service and file most tariff changes on 14 days' notice.U Specifically, we tentatively conclude that 888 service and subsequent toll free codes should be treated like existing 800 services. That is, we believe that 800 and 888 will be used interchangeably as toll free codes and thus are functionally the same. As a  X-result, we think that the existing Part 69 provisionsbKD X-#o\  PC XP#э Section 69.118 of the Commission's Rules, 47 C.F.R. 69.118, requires many LECs to establish an 800 database subelement. for 800 service would also cover 888 service and, we tentatively conclude, the LECs would not need to obtain a waiver of Part 69. We also seek comment on whether it is reasonable for the LECs to charge interim rates or make other provisions to deal with transition issues during the conversion to toll free  X_-operation of 888 service.Cc _D X-#Xj\  P6G; XP#э For example, Ameritech will not initially be able to deliver 888 traffic through end office switches. It will have to route all 888 traffic through access tandems for several months until 888 routing capability is installed in its end offices. Consequently, Ameritech proposes to modify its tariff to charge each IXC for 888 access on the same basis as it charges that IXC for 800 access. IXCs that generally purchase access service through the tandem will, under Ameritech's proposal, continue to pay the rates for that type of access. To the extent, however, that an IXC normally purchases access service through end offices, Ameritech would, in effect, charge it the rates for end office access. This may temporarily result in an IXC being charged end office access rates for 888 traffic that is actually routed through a tandem on a temporary basis. Ameritech stated that it would install end office routing capability in 80 percent of its end offices within seven months after 888 portability begins.C We believe that the costs of providing 888 toll free service should  XH-be treated in accordance with the procedures we established for 800 servicedHD X-#o\  PC XP#э See Provision of Access for 800 Service, Second Report and Order, 8 FCC Rcd 907, 911 (1993). The Commission allowed exogenous treatment for the incremental costs incurred specifically for the implementation of 800 database service but disallowed recovery of, among other things, core SS7 costs. and that the LECs should file their tariff revisions on not less than 45 days' notice.  X -<  V. PAPERWORK REDUCTION ACT ă  X - 57.` ` As required by the Paperwork Reduction Act of 1995,ze D X$-#Xj\  P6G; XP#э 44 U.S.C. 3501 et seq.z we seek comment to  X -evaluate whether the proposed collections of information sought within this NPRM are necessary for the proper performance of the functions of the Commission. We seek comment specifically on: (1) whether the information collected will have practical utility; (2) the""e0*((" accuracy of the Commission's estimate of the burden imposed by the proposed collections of information; (3) ways to enhance the quality, utility, and clarity of the information sought to be collected from the respondents; and (4) ways to minimize the burden on respondents, including the use of available automated collection techniques or other forms of information  X-technology.  Xv-}/ VI. CONCLUSION  X_-  XH- 58.` ` The challenges posed by the threat of unanticipated exhaust of 800 numbers before 888 numbers could be offered to the public have compelled the Commission to establish policies and procedures to smooth the transition preceding the introduction of the toll free 888 code. The purpose of this rulemaking proceeding is to identify the proper steps that should be taken to effectively manage toll free service numbers and to prevent a  X -reoccurrence of similar challenges. In this Notice of Proposed Rulemaking, we request comment on the questions and proposals set forth above and encourage participation by interested parties.  Xy-. VII. PROCEDURAL MATTERS  Xb-  XK-A.Ex Parte  X4-  X- 59.` ` This is a nonrestricted notice and comment rulemaking proceeding. Ex parte presentations are permitted, except during the Sunshine Agenda period, provided they are disclosed as provided in the Commission's Rules. See generally 47 C.F.R. Sections 1.1202, 1.1203, and 1.1206(a).  X- B.Initial Regulatory Flexibility Analysis  X-   X|- 60.` ` As required by Section 603 of the Regulatory Flexibility Act, the Commission has prepared an Initial Regulatory Flexibility Analysis ("IRFA") of the expected impact on small entities of the proposals suggested in this document. The IRFA is set forth in Appendix A. Written public comments are requested in the IRFA. These comments must be filed in accordance with the same filing procedures as other comments in this proceeding, but they also must have a separate and distinct heading designating them as responses to the  X-Initial Regulatory Flexibility Analysis. The Secretary shall send a copy of the Notice of  X-Proposed Rulemaking, including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration in accordance with paragraph 603(a) of the Regulatory Flexibility Act. Pub. L. No. 96354, 94 Stat. 1164, 5 U.S.C. Section  X"-601 et seq (1981).   Xh$- C.Notice and Comment Provisions  XQ%-  X:&- 61.` ` Pursuant to applicable procedures set forth in Sections 1.415 and 1.419 of the Commission's Rules, 47 C.F.R. Sections 1.415 and 1.419, interested parties may file"#'#e0*((%" comments on or before November 1, 1995, and reply comments are due on or before November 15, 1995. To file formally in this proceeding, you must file an original and four copies of all comments, reply comments, and supporting comments. If you want each Commissioner to receive a personal copy of your comments, you must file an original plus nine copies. You should send comments and reply comments to the Office of the Secretary, Federal Communications Commission, Washington, D.C. 20554. Comments and reply comments will be available for public inspection during regular business hours in the FCC Reference Center (Room 239) of the Federal Communications Commission, 1919 M Street, N.W., Washington, D.C. 20554.  X1- VII. ORDERING CLAUSES  X -  X - 62.` ` Accordingly, pursuant to Sections 1, 201205, 218 of the Communications Act of 1934, as amended, 47 U.S.C 151, 154, 201205, 218, IT IS ORDERED that this NOTICE OF PROPOSED RULEMAKING is hereby provided.  X- 62.` ` IT IS FURTHER ORDERED that the PETITION FOR IMMEDIATE RULEMAKING filed by Tansin A. Darcos and Company is hereby GRANTED IN PART and DENIED IN PART. "#'$e0*((%"Ԍ X-ԙA APPENDIX A INITIAL REGULATORY FLEXIBILITY ANALYSIS  X-Reason for Action:  This Notice of Proposed Rulemaking responds to the requests of industry to smooth the transition to an expanded set of toll free service access codes, starting with 888 and eventually deploying 877, 866, and so forth. In light of the rapid unanticipated depletion recently experienced with 800 numbers, the Commission is compelled to initiate this rulemaking proceeding.  X - Objectives:` ` The objective of this proposal is to assure that, in the future, toll free numbers are allocated on a fair, equitable, and orderly basis. The proposal also seeks to assure that the transition period during which the numbers within one toll free code are approaching full consumption, and another code is introduced, is smooth and without disruption to existing customers or interruption in the availability of toll free numbers for new customers.  X- Legal Basis:` ` The proposed action is authorized under Sections 1, 201205, and 218 of the Communications Act of 1934, as amended, 47 U.S.C. Sections 151, 154, 201205,and 218.  XK- Reporting, Record Keeping and Other Compliance Requirements: The proposed rules may require Responsible Organizations ("RespOrgs") and 800 Service Providers to have a written request from a toll free subscriber before assigning a toll free number and may be required to retain such records for two years. The administrator of the SMS/800 database, currently Database Services Management, Inc. ("DSMI") will be required to submit periodic reports to the Commission on toll free number utilization. RespOrgs will be required to certify, under penalty of false statement, the accuracy of certain customer information.  X- Federal Rules Which Overlap, Duplicate, or Conflict with These Rules: None.  Xe- Description, Potential Impact and Number of Small Entities Involved: The proposals set forth in this Notice may have a significant economic impact on a substantial number of small entities. Toll free numbers are essential to many businesses both in terms of marketing and advertising products. Toll free numbers may also have an intrinsic value to many businesses.  X- Any Significant Alternatives Minimizing the Impact on Small Entities, Consistent with  X -Stated Objectives:  None. "#'%e0*((%"Ԍ