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                           Before the
                Federal Communications Commission
                     Washington, D.C. 20554


In the Matters of                )
                                )
CURT HIMMELMAN,                  )
                                      )
Petitioner,                      )
                                )    EB-00-TC-F-003
v.                               )
                                )
MCI COMMUNICATIONS CORPORATION,  )
                                      )
Respondent.                      )
                                )
                                )
                                )
YOUNG SOON OH and BERNICE        )
SCHATZ,                          )    EB-00-TC-F-004
                                      )
Petitioners,                     )
                                )
v.

AT&T CORPORATION, 
                                      
Respondent.



                        DECLARATORY ORDER
                                 
   Adopted:  March 12, 2002             Released:  March 19, 2002

By the Commission:

                        I.   INTRODUCTION

     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

                         II.  BACKGROUND

     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 
second call.13

                      III.      DISCUSSION

     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 
201(b).

          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 
section 201(b).22  

     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 
second request.24

     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 
the request.27 

     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 
relevant tariffs.32 

     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

          III.B.2.  Decision 

     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 
listings. 

     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 
Petition. 54

     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 
broad discretion.55

                      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 
GRANTED.56

     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
                    Acting Secretary
_________________________

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 
2.
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 
1.
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 
distance services.
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 
section 201(b)).
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 
19,905.
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 
telecommunications marketplace).
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. 
1.2.
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.