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Federal Communications Commission
Washington, D.C. 20554
In the Matters of )
CURT HIMMELMAN, )
MCI COMMUNICATIONS CORPORATION, )
YOUNG SOON OH and BERNICE )
SCHATZ, ) EB-00-TC-F-004
Adopted: March 12, 2002 Released: March 19, 2002
By the Commission:
1. In this Declaratory Order, we grant Requests for
Declaratory Ruling (``Petitions'') filed by Curt Himmelman, and
Young Soon Oh and Bernice Schatz (collectively ``Petitioners'). 1
The Petitions arose out of class action lawsuits filed in federal
district courts against MCI Communications Corporation (MCI) and
AT&T Corporation (AT&T) (collectively ``Respondents'') alleging
that the Respondents fail to provide consumers with a second
listing during Area Code Directory Assistance (``directory
assistance'') calls in accordance with their tariffs.2 Pursuant
to the doctrine of primary jurisdiction, the district courts
asked the Commission to determine whether the practices described
by the Petitioners in their Petitions are unjust and unreasonable
within the meaning of section 201(b) of the Communications Act. 3
As described below, we find that the MCI and AT&T practices are
unjust and unreasonable under section 201(b).4
2. As class representatives, the Petitioners filed
lawsuits in the U.S. District Court for the District of Columbia
and the U.S. District Court for the District of New Jersey. 5 In
each of these actions, the court found that the central claims
were within the primary jurisdiction of this Commission. The U.S.
District Court for the District of Columbia dismissed the case
without prejudice.6 The U.S. District Court for the District of
New Jersey stayed the action pending a ruling by the Commission.7
3. On June 12, 2000, the Petitioners concurrently filed
Requests for Declaratory Ruling with the Commission.8 The
Petitioners asked the Commission to issue a declaratory ruling
that the manner in which MCI and AT&T provided directory
assistance service violated their tariffs and constituted unjust
and unreasonable practices under section 201(b).9 The filed
tariffs of MCI and AT&T, in effect during the period covered by
the Petitions,10 stated that up to two listings would be provided
per call.11 The Petitioners allege, however, that consumers are
not given a reasonable opportunity to make two requests.
Specifically, the Petitioners contend that because the
Respondents use the singular-form prompts, ``What city, please?
and ``What listing, please?'', the Respondents' customers wanting
to get two listings at once pursuant to the tariff expect another
opportunity to request a second listing, but are not given such
an opportunity.12 As a result, the Respondents' customers are
required to make a subsequent directory assistance call to get a
second listing, and the Petitioners assert that the Respondents
refuse to provide a credit for the service fee charged for that
III.A. Statute of Limitations
4. The Respondents contend that under section 415(b) of
the Act, the Petitioners are barred from seeking relief for any
portion of the claim that occurred before June 12, 1998.14
Section 415(b) provides, in pertinent part, that ``[a]ll
complaints against carriers for the recovery of damages not based
on overcharges shall be filed with the Commission within two
years from the time the cause of action accrues, and not after .
. .''15 The matter referred to us by the district courts
involves whether the Respondents have engaged in unjust and
unreasonable practices in providing listings during a directory
assistance call. The Petition did not include any claims related
to damages, nor did it challenge whether the crediting practices
represented unjust and unreasonable practices. Hence, section
415(b) is not applicable to the issues raised herein.
III.B. Alleged Section 201(b) Violations
5. The Petitioners contend that the procedures chosen by
the Respondents are unjust and unreasonable practices in
violation of section 201(b) of the Act16 because they are
designed to mislead customers and prevent them from requesting
and obtaining a second listing as provided for in the
Respondents' tariffs.17 In response, MCI and AT&T contend that
the Petitioners have failed to demonstrate that the carriers are
violating section 201(b) because their procedures do allow
customers to request and obtain a second listing.18 As discussed
below, we find that the practices of MCI and AT&T violate section
III.B.1. The Parties' Contentions
6. The Petitioners argue that the Respondents' use of
singular-form prompts during directory assistance calls misleads
customers into believing that they will be provided another
opportunity later in the call to request a second listing.19 When
no such opportunity is provided, customers have to make a
subsequent call and incur an additional charge to obtain a second
listing.20 The Petitioners allege that in past years, customers
were allowed to make additional requests and specifically told to
stay on the line to receive further assistance.21 The
Petitioners maintain that the Respondents' practice of using the
singular-form prompts manipulates customers based on their
expectations and past experiences. Therefore, they argue, the
practices are unjust and unreasonable within the meaning of
7. The Petitioners suggest that it would be simple for the
Respondents to modify their procedures so that customers are
readily provided the means for requesting up to two listings per
call. The Petitioners maintain that the Respondents could modify
the initial prompts to the plural forms, ``What cities, please?''
and ``What listings, please?'', thus indicating that customers
should request both listings up front in the call.23 The
Petitioners also contend that the Respondents could provide an
opportunity after the first request for customers to make a
8. The Respondents deny the Petitioners' allegations that
the singular-form prompts mislead customers and prevent them from
requesting a second listing.25 MCI maintains that contrary to the
Petitioners' claims, its customers are provided several
opportunities to request two listings during a directory
assistance call.26 AT&T asserts that if a caller makes a second
request at the outset of the call, its operator will respond to
9. The Respondents also argue that the singular-form
prompts are consistent with those used throughout the industry.28
As a result, they maintain that customers are very familiar with
their use,29 know that the singular form includes the plural,30
and know how to make a request for a second listing.31 Even so,
they reason, customers are presumed to know the provisions of the
10. The Respondents also contend that the Petitioners have
no basis for arguing that it would be a simple matter to change
how requests for second listings are elicited from customers.
They assert that it would be expensive to modify the manner in
which customers request a second listing.33 They also argue that
the technological means do not exist to have quality loopback
functionality, thus allowing customers to request the second
listing at the back end of the call.34 There simply is no basis,
they maintain, for requiring a change in the manner listings are
offered when neither the tariff nor the Act requires the service
to be provided in a specific manner.35
11. The Petitioners reply that the Respondents cannot
simply claim that because their practices conform to a standard
industry practice, the practices are therefore just and
reasonable.36 They maintain that whether practices are just and
reasonable must be assessed on a case-by-case basis.37 In the
case of the Respondents, because their practices mislead
customers and prevent them from requesting a second listing
during a call as described in the tariffs, their practices must
be found to violate section 201(b).38
12. In this declaratory ruling, we are responding to the
courts' requests that the Commission address whether AT&T and MCI
violated section 201(b) of the Act in the way they provided
directory assistance listings. Although the Act did not require
AT&T and MCI to offer two listings per call, they chose to do so
through their tariffs. Once these offers were made, they were
obligated to provide the listings in a just and reasonable
manner.39 In assessing whether there has been a violation of
section 201(b), we look at the record to determine whether a
reasonable customer would understand how to request up to two
listings given the Respondents' practices.40 Here, the
Respondents' use of singular-form prompts combined with their
failure to disclose the procedures for customers to request and
obtain up to two listings per call served to hide the
availability of the offering. Therefore, we find that the
Respondents have violated section 201(b) of the Act.
13. Under section 201(b) of the Act, carriers' practices in
providing service must be ``just and reasonable.'' In its tariff,
MCI stated, ``The Directory Assistance operator will search for
up to two numbers per call for a charge of $1.40 per call.''41
Similarly, AT&T's tariff stated, ``Up to two requests for
listings within the area code dialed may be made on each call to
Directory Assistance for a charge of $1.40.''42 Here, we must
decide whether the singular-form prompts are just and reasonable
when viewed in light of the services offered by the tariffs, and
we conclude that they are not. The audible prompts used by the
Respondents explicitly stated, ``What city, please?'' and ``What
listing, please?'' The singular form of these audible prompts is
inconsistent with the language contained in the Respondents'
tariffs. We believe that it is reasonable for customers hearing
a singular-form prompt to infer that they are being limited to
requesting a single listing. Without being provided specific
information on how to get a second listing, it is unreasonable to
believe that customers would ``naturally'' know how and when to
make the request for a second listing. The presumed general
familiarity with the singular-form prompts does not mean
customers are familiar with the individual procedures established
by the carriers to actually request a second listing. It is
simply misleading for a carrier to use a singular-form prompt
when it is offering consumers an opportunity to request multiple
14. The misleading nature of the singular-form prompts is
not remedied by the fact that the prompts may conform to standard
industry practice. Conformance with an industry practice does not
automatically make a practice just and reasonable within the
meaning of section 201(b) of the Act, because violations of
section 201(b) are determined based on the specific circumstances
of a case.43 AT&T cites Erdman Technologies Corporation v. US
Sprint Communications Company, for the proposition that industry
guidelines may be relevant in determining whether practices
comply with section 201(b).44 In Erdman, an industry group had
established specific guidelines.45 In the present case, however,
there are no established industry guidelines or standards. It is
not even clear from the record that there is a standard industry
practice beyond the use of the singular-form prompts. For
example, MCI asserts that customers have three options, available
at different points during the call, to request a second
listing.46 AT&T, however, insists that customers must make their
request for two listings to the live operator at the outset of a
call.47 Thus, rather than eliciting the requests for two
listings based on a standard industry practice, it appears that
the Respondents have individually tailored their directory
assistance service offerings. In a competitive marketplace such
as this one, service providers freely determine the terms of
their service offerings.48
15. While the Respondents have great latitude in the manner
in which they choose to offer a service, the Commission has
consistently encouraged service providers to furnish customers
with information that enhances their ability to understand and
utilize a service.49 Without such information, customers will be
unable to make informed choices and benefit from the competitive
marketplace.50 The record supports the Petitioners' claim that
they were not fairly on notice of the procedures required to get
additional listings. In this case, notice cannot be deemed to
have been provided based on a standard industry practice. Nor is
notice provided by the Respondents' tariffs, because they do not
provide customers with any specifics concerning the method or
timing of making additional requests.51
16. Neither MCI nor AT&T provided any evidence indicating
that the procedures required to obtain the second listing are
proactively communicated to a customer either during the call or
through some other means. In fact, the record indicates that
customers are only provided this information if they ask or seek
credit for a second directory assistance call made specifically
to get an additional listing that they were unable to request in
a prior call.52 AT&T insists that if customers did not
understand how to make the request for two listings from the live
operator the first time they heard the prompts, they would
certainly realize what was needed to get the second listing the
next time a call was made.53 We find this argument
unpersuasive. It is unreasonable to expect consumers to
determine a workable procedure wholly through trial and error.
For the reasons discussed above, we grant the Petitioners
requests' and find that the carriers' failure to disclose the
procedures required to request up to two listings during a
directory assistance call is an unjust or unreasonable practice
within the meaning of section 201(b), and otherwise deny the
III.C. Other Matters
17. We reject the respondents' suggestions that the issue
referred by the courts as to the lawfulness of their practices
can only be decided in a formal complaint (AT&T) or rulemaking
(MCI) proceeding. Deciding the issue in the context of a
declaratory ruling proceeding is well within the Commission's
IV. ORDERING CLAUSE
18. Accordingly, pursuant to sections 4(i), 4(j), and
201(b) of the Communications Act of 1934, as amended, 47 U.S.C.
§§ 154(i), 154(j), 201(b), and section 1.2 of the Commission's
Rules, 47 C.F.R. §1.2, IT IS ORDERED, that the Requests for
Declaratory Ruling filed by Curt Himmelman, Young Soon Oh, and
Bernice Schatz are GRANTED to the extent described herein.
19. IT IS FURTHER ORDERED that the Petitioner's Motion to
Strike New Assertion by MCI or, in the Alternative, to Supplement
Record, filed by Petitioner Himmelman on May 25, 2001, IS
20. IT IS FURTHER ORDERED that the Petitioner's Motion to
Supplement Record, filed by Petitioners Oh and Schatz on October
19, 2001, IS DENIED.57
21. IT IS FURTHER ORDERED that the Chief of the
Telecommunications Consumers Division of the Enforcement Bureau
shall forward a copy of this Memorandum Opinion and Order to the
Clerk, U.S. District Court for the District of Columbia and to
the Clerk, U.S. District Court for the District of New Jersey.
FEDERAL COMMUNICATIONS COMMISSION
William F. Caton
1 Curt Himmelman v. MCI Communications Corporation, File
No. EB-00-TC-F-003 (filed June 12, 2000) (Himmelman Petition);
Young Soon Oh and Bernice Schatz, File No. EB-00-TC-F-004 (filed
June 12, 2000) (Oh Petition).
2 Himmelman Petition at Ex. 1, Curt Himmelman, on behalf
of himself and all others similarly situated, v. MCI
Communications Corporation, Case No. 1:99CV01705 (D.D.C. 1999);
Oh Petition at Ex. 1, Young Soon Oh and Bernice Schatz on behalf
of themselves and all similarly situated, v. AT&T Corp., Civil
Action No. 99-2161 (D.N.J. 1999).
3 Himmelman Petition at Exhibit 1; Oh Petition at Exhibit
4 Although the Petitions include a claim that the
Respondents' practices violate their tariffs, because we find
that the carriers' practice is unjust and unreasonable in
violation of section 201(b) of the Act, we need not reach the
question of whether they violated their tariffs.
5 Himmelman Petition at Exhibit 1; Oh Petition at Exhibit
6 Himmelman Petition at Exhibit 2.
7 Oh Petition at Exhibit 2.
8 See Himmelman and Oh Petitions.
9 Himmelman Petition at 2; Oh Petition at 2.
10 On July 31, 2001, the Commission's detariffing order became
effective. The order provided that carriers are no longer
permitted to file tariffs related to consumer domestic long
11 MCI FCC Tariff No. 1, 18.12 at Section 3 stated, ``The
Directory Assistance operator will search for up to two numbers
per call.'' Similarly, AT&T F.C.C. Tariff No. 1, §6.20.2.A
stated, ``Up to two requests for listings within the area code
dialed may be made on each call to Directory Assistance.''
12 Himmelman Petition at 2-3; Oh Petition at 2-3.
13 Himmelman Petition at 3-4; Oh Petition at 4.
14 MCI Answer at 3; AT&T Opposition at 10.
15 47 U.S.C. § 415(b).
16 Section 201(b) of the Act states, in pertinent part, that
``[a]ll charges, practices, classifications, and regulations for
and in connection with such communication service, shall be just
and reasonable, and any such charge, practice, classification, or
regulation that is unjust or unreasonable is hereby declared to
be unlawful . . . . '' Id. § 201(b).
17 Himmelman Petition at 2; Oh Petition at 2.
18 MCI Answer at 2; AT&T Opposition at 3.
19 Himmelman Petition at 2-3; Oh Petition at 3.
20 Himmelman Petition at 3; Oh Petition at 3.
21 Himmelman Petition at 3; Oh Petition at 3.
22 Himmelman Petition at 2; Oh Petition at 2.
23 Himmelman Petition at 4; Oh Petition at 4.
24 Himmelman Petition at 4; Oh Petition at 4.
25 MCI Answer at 2; AT&T Opposition at 3.
26 MCI Answer at 2. They contend that their service allows
customers to: 1) request two listings during the initial prompts;
2) remain silent at the initial prompts; or 3) press ``0'' at any
time during the automated recording. MCI asserts that each option
will lead to a live operator joining the call, because its
operators are always present during a directory assistance query.
27 AT&T Opposition at 3. The front-end of AT&T's directory
assistance calls are handled by live operators. The remainder of
the call is automated. Because the front-end is handled by a
live operator, they contend that consumers can readily seek
additional assistance if two listings are sought.
28 MCI Answer at 3; AT&T Opposition at 10.
29 AT&T Opposition at ii.
30 AT&T Brief at 7-8.
31 MCI Answer 3-4; AT&T Opposition at ii.
32 MCI Reply Brief at 6; AT&T Brief at 7.
33 AT&T Opposition at 5, 7.
34 AT&T Opposition at 7.
35 AT&T Brief at 16.
36 Himmelman Brief at 3; Oh Brief at 4.
37 Himmelman Brief at 3; Oh Brief at 4.
38 See generally Himmelman and Oh Briefs.
39 See Telecommunications Research and Action Center and
Consumer Action v. Central Corp. et al., 4 FCC Rcd. 2,157, 2,159
(Com. Car. Bur. 1989) (finding that the carriers' practice of
call blocking, coupled with the failure to provide adequate
consumer information, is unjust and unreasonable in violation of
40 See e.g., Business Discount Plan, Inc., Notice of Apparent
Liability for Forfeiture, 14 FCC Rcd. 340, 356 (1998).
41 Himmelman Petition at 3 (stating that the current charge per
call is $1.40, while in prior periods the charge was $1.10 or
$0.95 per call); see also Himmelman Brief at Exhibit A (citing
MCI FCC Tariff No. 1, 18.12 at Section 3).
42 Oh Petition at 2 (stating that the current charge per call
is $1.40, while in prior periods the charge was $1.10 or $0.95
per call); see also Oh Reply Brief at Exhibit B (citing AT&T
F.C.C. Tariff No. 1, §6.20.2.A).
43 Southwestern Bell Mobile Systems, Inc., Petition for
Declaratory Ruling Regarding the Just and Reasonable Nature of,
and State Challenges to, Rates Charged by CMRS Providers when
Charging for Incoming Calls and Charging for Calls in Whole-
Minute Increments, 14 FCC Rcd. 19,898, 19,905 (1999).
44 AT&T Reply Brief at 6.
45 15 FCC Rcd 7232, 7244-46, ¶¶22-24 (1999).
46 MCI Answer at 2.
47 AT&T Opposition at 7-8.
48 Southwestern Bell Mobile Systems, Inc., 14 FCC Rcd. at
49 See, e.g., Billed Party Preference for InterLATA 0+ Calls,
Second Report and Order and Order on Reconsideration, 13 FCC Rcd
6122, 6124 (1998) (asserting that disclosure rules for Operator
Service Providers are pro-consumer and pro-competitive); see also
Truth-In-Billing and Billing Format, 14 FCC Rcd 7492, 7497-7499
(1999) (ensuring that consumers are provided with the basic
information they need to make informed choices in a competitive
50 See supra note 48.
51 The filed tariff doctrine provides that customers are
presumed to have knowledge of the tariffs. See Marcus v. AT&T,
138 F.3d 46, 56 (2d Cir. 1998). In the context of this
proceeding, this doctrine does not help the Respondents. The
Petitioners have established that they knew the terms and
conditions contained in the tariffs, i.e., that they were legally
entitled to request up to two listings per directory assistance
call. Because the tariffs did not disclose the procedures or
requirements for requesting a second listing, however, knowledge
of the filed tariff did not provide the Petitioners with the
means for obtaining the described service.
52 MCI Brief at 4.
53 AT&T Opposition at 7-8.
54 We do not set out to prescribe a specific method of
disclosure to the Respondents. AT&T has pointed to the fact that
adding loopback functionality would result in significant costs,
although they provided no information on what the costs would be
for implementing loopback functionality on the wireline network.
Absent compelling circumstances, we allow carriers flexibility in
determining how they will provide customers with the information
required to utilize the service offered.
55 See 47 U.S.C. §154(i), (j); 5 U.S.C. § 554(e), 47 C.F.R.
56 MCI introduced a claim in its Reply Brief that had not been
introduced in previous filings. The information at the heart of
the new claim should have been accessible to MCI based on its
records. As a result, this claim should have been raised in
earlier filings. Therefore, we grant the Petitioner's Motion to
Strike New Assertions.
57 The Petitioners sought to supplement the record to refute
AT&T's claim on the feasibility of adding loopback functionality.
Because we make no decision here on whether the Respondents must
implement such a functionality, there is no need to supplement
the record on this point. Therefore, we deny the Petitioners'
Motion to Supplement the Record.