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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 In the Matter of ) ) INFONXX, Inc., ) ) Complainant, ) v. ) File No. E-97-16 ) NYNEX,) ) Defendant. ) MEMORANDUM OPINI ON AND ORDER Adopted: May 26 , 1998; Released: May 27, 1998 By the Chief, Common Carrier Bureau: I. INTRODUCTION 1. In this Memorandum Opinion and Order, we consider allegations by INFONXX, Inc. (INFONXX) that NYNEX is unlawfully refusing to provide access to its directory assistance (DA) database, and to properly unbundle a network element, in violation of Sections 251 and 271 of the Communications Act of 1934, as amended by the Telecommunications Act of 1996 (Act). INFONXX seeks an order directing NYNEX to provide INFONXX with a complete copy of its DA database, updated nightly, at NYNEX's incremental cost. INFONXX also asks the Commission to direct NYNEX to immediately improve the quality of its Electronic White Page (EWP) service, which INFONXX currently uses to retrieve listings contained in NYNEX's white pages directory, pending the availability of a complete copy of the DA database. As described below, we deny INFONXX's formal complaint. II. BACKGROUND 2. INFONXX is a provider of voice directory assistance service in the 48 contiguous United States. NYNEX is an incumbent local exchange carrier (ILEC), as well as a Bell Operating Company (BOC), as defined by the Act. NYNEX provides DA service in the state of New York and the Northeastern United States, and INFONXX and NYNEX compete in the DA service market in the Northeastern United States. 3. NYNEX makes available access to its directory listings via three means: DA service, EWP service, and Direct Access to Directory Assistance (DADA) service. In providing its tariffed DA service, NYNEX employs listing data from its own DA database, which is updated daily, and includes information from its customer records. NYNEX's electronic EWP service provides on-line access to NYNEX's white pages telephone listings information without employing a live NYNEX DA operator. The EWP database is not identical to the database used by NYNEX to provide its DA service, but also is updated daily with approximately 60,000 changes. NYNEX's DADA service provides single query, read-only access to a copy of NYNEX's DA database. According to NYNEX, DADA service was designed to allow competitors to provide live operator directory assistance. DADA customers gain access to DADA service in the same manner that NYNEX's DA operators gain access to NYNEX's DA database. Both NYNEX's DA operators and DADA customers are limited to the listings database as it is formatted for DADA service, and neither can create customized databases or reformat the DADA database. Other NYNEX DA personnel who update the database can, however, create customized lists for use by NYNEX's DA operators in providing specialized directory assistance. 4. INFONXX provides its own directory assistance service in competition with NYNEX and other ILECs to its customers, which "include wholesale users such as alternative local exchange, long distance and cellular carriers, and retail users such as large brokerage houses." In providing its DA service, INFONXX maintains and updates daily a database compiled from several directory listing sources and supplemented by data it obtains from NYNEX through NYNEX's EWP service and its tariffed retail DA service. The directory listings information obtained from sources such as published white pages and similar commercial publications of business listings are out of date from the moment they are published due to the regular and continuous change in telephone service users. For example, missing and inaccurate data are encountered for about 20% of requests for business and government listings and about 50% of requests for residential listings, with inaccurate data representing 5-7% of the combined listings retrieved from vendor-supplied data. Although the vendor data compiled by INFONXX is updated monthly, there is no guarantee that the monthly updates are accurate or up-to-date. Moreover, the parties agree that it is not feasible for INFONXX to replicate NYNEX's DA database. 5. INFONXX uses NYNEX's EWP service to respond to approximately 20% of business and government listing requests and 50% of residential requests. INFONXX only uses EWP service when it has reason not to rely on the accuracy of its own data compiled from other sources; i.e., (1) to retrieve a requested listing when an operator is unable to locate the requested listing in INFONXX's own database because the listing was not supplied by its data vendor, (2) to verify that a requested listing does not exist when an operator is unable to locate the listing, or (3) when a caller states that an INFONXX DA operator gave him or her an incorrect number on a previous call. Since the fall of 1996, INFONXX has experienced periodic outages of NYNEX's EWP service. In the record, INFONXX documents 14 separate occasions on which service outages occurred, and NYNEX acknowledges eight additional outages not raised by INFONXX. NYNEX has also acknowledged that the cause of some, but not all, of the outages was problems with the equipment used to furnish EWP service. III. DISCUSSION 6. As a threshold matter, we address NYNEX's claim that we may not consider INFONXX's arguments in a Section 208 complaint because they "essentially advocate a rule change or new rule." We find this position to be unsupported. To the extent that INFONXX alleges violations of the Act, or of Commission rules or orders, the Commission has statutory authority to resolve such allegations in the context of a formal complaint proceeding. A. Section 251 claims 1. Contentions 7. According to INFONXX, the 1996 Act mandates that NYNEX make available to INFONXX a complete copy of its DA database. INFONXX first contends that the Commission has determined that "nondiscriminatory access to telephone numbers, operator services, directory assistance, and directory listing" under Section 251(b)(3) includes nondiscriminatory access to DA databases. INFONXX further contends that it fits within the Commission's definition of "service provider," and thus is entitled to nondiscriminatory access to NYNEX's directory listings as a "competing service provider" under Section 251(b)(3). INFONXX also avers that, pursuant to Section 251(c)(3), the Commission has determined that a DA database is a network element that must be unbundled for the benefit of telecommunications carriers. Despite an admission in its complaint that "it is not a 'telecommunications carrier' per se," INFONXX claims in its brief that it is a telecommunications carrier, and thus is entitled to nondiscriminatory access to NYNEX's DA database, because its DA service fits under the definition of telecommunications in the 1996 Act. 8. Finally, INFONXX argues that, "to fully implement the congressional goal of enhancing competition," the Commission should interpret the 1996 Act to require that all providers of a bona fide competitive DA service, such as INFONXX, are entitled to database access. INFONXX also cites to certain state public utilities commission decisions in support of its claim that all competitors, not just "telecommunications carriers," should be given nondiscriminatory access to ILECs' DA databases. 9. NYNEX responds that INFONXX is not entitled to a copy of its DA database under Section 251 for several reasons. First, while NYNEX acknowledges that Section 251(c)(3) of the Act requires ILECs to provide nondiscriminatory access to unbundled elements (which include databases), it contends that the Commission does not require ILECs to provide a copy of their DA databases. That is, NYNEX avers, this provision only requires that ILECs give competing carriers access to the database so that they can read the data in the database. Second, NYNEX maintains that INFONXX is not a "telecommunications carrier." Thus, claims NYNEX, "even if NYNEX had an obligation to provide a copy of its DA database to CLECs [it] certainly has no obligation to provide a copy to INFONXX since it is not a telecommunications carrier." Third, NYNEX maintains that the Commission's rule cited by INFONXX in its reply, that requires LECs to provide directory listings to competing carriers in readily accessible magnetic tape or electronic format upon request, applies only to listings data for printed directories, but not to DA databases. 10. NYNEX avers further that it does, in fact, provide access to its DA database as required under Section 251 and the Commission's rules through its DADA service, and has made this service available to INFONXX even though it has no statutory obligation to do so. NYNEX claims that its DADA service complies with the requirements of the Act and the Local Competition Order because it allows competing DA operators to query its DA database in the same manner that NYNEX's own DA operators query the DA database. 2. Decision 11. Section 251(b)(3) establishes a duty, inter alia, for local exchange carriers to permit all "competing providers of telephone exchange service and telephone toll service" to have nondiscriminatory access to directory assistance and directory listing. INFONXX, as a DA service provider, is neither a provider of telephone exchange service nor a provider of telephone toll service as defined by the Act. Contrary to its claim, INFONXX also does not fit the Commission's definition of a "competing provider," because it is not a provider of telephone exchange or telephone toll services. The Commission has previously stated that entities that are not providers of telephone exchange or toll service are not entitled to the protection available to competing providers under Section 251(b)(3). Therefore, in the context of a formal complaint proceeding, we may not extend the protection of Section 251(b)(3) to entities other than "competing providers of telephone exchange service and telephone toll service." The language in Section 251(b)(3) is unambiguous. In the absence of clear Congressional intent to the contrary, we must interpret the Act's provisions according to their plain meaning. 12. Section 251(c)(3) establishes a similar duty for ILECs to provide to "any requesting telecommunications carrier for the provision of a telecommunications service" nondiscriminatory access to network elements on an unbundled basis. A "telecommunications carrier" is any provider of telecommunications service, which is defined in relevant part as "the offering of telecommunications for a fee directly to the public." "Telecommunications" is further defined by the Act as "the transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received." INFONXX does not provide the transmission of information; it merely uses the transmission services of others to provide information to its customers. Thus, INFONXX's argument that it is a telecommunications carrier because its DA service is a telecommunications service is untenable. Because INFONXX is not a telecommunications carrier, it is not entitled to nondiscriminatory access to NYNEX's DA facilities under Section 251(c)(3). Moreover, because we find no Section 251 obligation for NYNEX to provide INFONXX with nondiscriminatory access to its DA database, we decline to address whether NYNEX's EWP service and its DADA service otherwise meet the requirements of Section 251. B. Section 271 claim 1. Contentions 13. INFONXX claims that Section 271 of the Act requires the Commission to verify NYNEX's compliance with the competitive checklist, which in turn requires, inter alia, that BOCs provide "nondiscriminatory access to directory assistance services to allow the other carrier's customers to obtain telephone numbers." NYNEX does not address INFONXX's Section 271 claim in its pleadings. 2. Decision 14. Section 271 of the Act governs BOC entry into interLATA services; specifically, Section 271(c) sets forth the requirements that BOCs must meet before providing certain in- region, interLATA services. Although some of the requirements in the competitive checklist under this section are parallel to the requirements in Section 251 of the Act, compliance with the competitive checklist is evaluated in the context of a BOC's application to the Commission to provide in-region, interLATA service. NYNEX's compliance with the requirements of the competitive checklist, therefore, is not appropriately at issue in this formal complaint proceeding. Accordingly, we deny INFONXX's Section 271 claim. C. Section 201(b) Claim 1. Contentions 15. INFONXX contends that antitrust law "mandates access by INFONXX to NYNEX's complete database." In its brief, but not in its complaint or reply, INFONXX also contends that Section 201(b) of the Act "compels NYNEX to provide service under terms that are just and reasonable," and that "NYNEX's provision of DA information to INFONXX is unjust and unreasonable under the antitrust laws." INFONXX further contends that the applicable antitrust principle is the "essential facility" or "bottleneck" element doctrine, under which a monopolist in control of an essential facility must provide its competitors with reasonable access to that facility. INFONXX insists that NYNEX's DA database is an essential facility because NYNEX has total control over the DA database and competitors are unable to duplicate the DA database, and that NYNEX has refused to give "adequate" access to the complete DA database. INFONXX also avers that denial of an essential facility can occur in the absence of an outright refusal to deal, if the terms of the offer to deal are unreasonable. Thus, asserts INFONXX, because NYNEX provides only "limited access" to its DA database via EWP, "it could not be said that NYNEX has given INFONXX meaningful access to the database necessary to compete as a DA provider." 16. NYNEX disagrees with INFONXX's claim that the antitrust laws require it to give a copy of its DA database to INFONXX. NYNEX also insists that its DA database is not an "essential facility," because access to it can be obtained through other means, i.e., its DADA service. 2. Decision 17. We find that INFONXX's claim is premature, and that it has not demonstrated a violation of the antitrust laws, nor by reference, an unjust or unreasonable practice in violation of Section 201(b). Even assuming, arguendo, that NYNEX's DA database is an essential facility as INFONXX claims, INFONXX fails to show that it has been denied reasonable access to the DA database. Of the three DA products offered by NYNEX -- DA service, EWP service, and DADA service -- NYNEX purports to offer "access" to its DA database only through its DADA service. However, INFONXX does not and never has subscribed to the DADA service; thus, its argument that NYNEX's DADA service does not provide reasonable access to its DA database is speculative, and unpersuasive. Accordingly, we deny INFONXX's claims that NYNEX's practices violate antitrust laws, and are unjust or unreasonable in violation of Section 201(b). D. Remaining claims 1. Contentions 18. In its brief, but not in its complaint or reply, INFONXX avers that the Commission should, pursuant to the nondiscrimination provisions in Section 202(a), "consider whether NYNEX is providing wholesale DA service to INFONXX that is comparable to what it provides to itself." Specifically, INFONXX states that "NYNEX is subjecting INFONXX to unreasonable prejudice and disadvantage in the competition for DA business" by forcing INFONXX to rely on an inferior alternative to the database -- EWP service -- thus enabling NYNEX "to exploit its monopoly control of its database to maintain its dominant market position in DA service." Moreover, INFONXX argues that even if information service providers like INFONXX do not fit squarely into the 1996 Act's definitions, the Commission has authority under Section 202 "to extend the protections and benefits of the 1996 Act to INFONXX in order to foster competition." 19. INFONXX further contends that the Act requires NYNEX to provide it with access to its DA database comparable to NYNEX's own access, and that "neither EWP nor DADA provides access adequate to satisfy [S]ections 201 and 202." INFONXX also claims that it has been harmed by NYNEX's allegedly "inferior" access because one of its largest customers notified INFONXX of its intent to terminate its contract with INFONXX. Moreover, claims INFONXX, NYNEX's DA database is essential to its provision of DA service, and, while it strives to minimize its reliance on NYNEX's DA database, its reliance "is unavoidable because alternative listing sources do not and cannot match the accuracy of [NYNEX's] database that is updated daily from local carrier customer lists." 20. Although NYNEX acknowledges that its EWP service has experienced some problems, NYNEX claims that INFONXX has "grossly exaggerated the extent of these problems and ignores the fact that some of the outages that it experienced were caused by failures in the networks of the carriers that it uses to access the EWP computers." According to NYNEX, between November 14, 1996 and June 6, 1997, EWP service was fully operational 99.63% of the time. Moreover, NYNEX avers that INFONXX's complaints about the slow response times are equally without merit, because NYNEX's records show that the average response time to EWP queries ranged between 2.0 and 3.45 seconds (with an average response time of 3.09 seconds) on the day that INFONXX filed its motion for interim relief. 2. Decision 21. We decline to address INFONXX's additional claims under Section 202(a) specifically, and the Act generally, regarding the quality of access to NYNEX's DA database via its EWP and DADA services. Because INFONXX did not specifically allege these violations in its complaint or its reply, they are not properly before us, except to the extent that the same arguments were raised in support of the claims discussed above. IV. CONCLUSION 22. We conclude that INFONXX has failed to show that NYNEX must provide to it a copy of its directory assistance database. INFONXX has the option of gaining access to NYNEX's directory listings by other means, and therefore is not, as a result of our findings in this decision, precluded from continuing to offer a competitive DA service in NYNEX's service region. For the reasons set forth in this Order, we deny INFONXX's formal complaint. V. ORDERING CLAUSES 23. Accordingly, IT IS ORDERED, pursuant to Sections 1, 4(i), 4(j), 201(b), 202(a), 208, 251, 271, and 272 of Act, as amended, 47 U.S.C.  151, 154(i), 154(j), 201(b), 202(a), 208, 251, 271, 272, and the authority delegated under Sections 0.91 and 0.291 of the Commission's rules, 47 C.F.R.  0.91, 0.291, that the Formal Complaint filed by INFONXX IS DENIED. FEDERAL COMMUNICATIONS COMMISSION A. Richard Metzger, Jr. Chief, Common Carrier Bureau