[Federal Register: February 21, 2008 (Volume 73, Number 35)]
[Rules and Regulations]
[Page 9463-9481]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21fe08-18]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 52
[WC Docket No. 04-36, CC Docket Nos. 95-116, 99-200; FCC 07-188]
IP-Enabled Services, Telephone Number Portability, Numbering
Resource Optimization
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: The Commission adopted rules extending local number
portability obligations and numbering administration support
obligations to interconnected VoIP services and responded to the
District of Columbia Circuit Court of Appeals stay of the Commission's
Intermodal Number Portability Order.
DATES: Effective March 24, 2008.
ADDRESSES: Federal Communications Commission, 445 12th Street, SW.,
Washington, DC 20554.
FOR FURTHER INFORMATION CONTACT: Melissa Kirkel, Wireline Competition
Bureau, (202) 418-1580.
SUPPLEMENTARY INFORMATION: In this Order, the Commission undertakes
several steps to help ensure that consumers and competition benefit
from local number portability (LNP) as intended by the Communications
Act of 1934, as amended (the Act) and Commission precedent. First, the
Commission extends LNP obligations and numbering administration support
obligations to encompass interconnected VoIP services. Second, the
Commission issues a Final Regulatory Flexibility Analysis (FRFA) in
response to the D.C. Circuit's stay of the Commission's Intermodal
Number Portability Order. The Commission finds that wireline carriers
qualifying as small entities under the Regulatory Flexibility Act (RFA)
should be required to port to wireless carriers where the requesting
wireless carrier's ``coverage area'' overlaps the geographic location
in which the customer's wireline number is provisioned, provided that
the porting-in carrier maintains the number's original rate center
designation following the port.
The Commission will send a copy of this Report and Order and Order
on Remand in a report to be sent to Congress and the Government
Accountability Office pursuant to the Congressional Review Act, see 5
U.S.C. 801(a)(1)(A).
[[Page 9464]]
Final Paperwork Reduction Act of 1995 Analysis
This document does not contain new or modified information
collection(s) subject to the Paperwork Reduction Act of 1995 (PRA),
Public Law 104-13. In addition, therefore, it does not contain any new
or modified ``information collection burden for small business concerns
with fewer than 25 employees,'' pursuant to the Small Business
Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C.
3506(c)(4).
Synopsis of Report and Order
1. On March 10, 2004, the Commission initiated a proceeding to
examine issues relating to Internet Protocol (IP)-enabled services--
services and applications making use of IP, including, but not limited
to, VoIP services. In the IP-Enabled Services Notice (69 FR 16193, Mar.
29, 2004), the Commission sought comment on, among other things,
whether to extend the obligation to provide LNP to any class of IP-
enabled service provider. The Commission also sought comment on whether
the Commission should take any action to facilitate the growth of IP-
enabled services, while at the same time maximizing the use and life of
the North American Numbering Plan (NANP) numbering resources.
2. The Commission finds that the customers of interconnected VoIP
services should receive the benefits of LNP. Such action is
fundamentally important for the protection of consumers and is
consistent with the authority granted to the Commission under section
251(e) and sections 1 and 2 of the Act. Moreover, as described below,
by requiring interconnected VoIP providers and their numbering partners
to ensure that users of interconnected VoIP services have the ability
to port their telephone numbers when changing service providers to or
from an interconnected VoIP provider, the Commission benefits not only
customers but the interconnected VoIP providers themselves. (By
``numbering partner,'' the Commission means the carrier from which an
interconnected VoIP provider obtains numbering resources.)
Specifically, the ability of end users to retain their NANP telephone
numbers when changing service providers gives customers flexibility in
the quality, price, and variety of services they can choose to
purchase. Allowing customers to respond to price and service changes
without changing their telephone numbers will enhance competition, a
fundamental goal of section 251 of the Act, while helping to fulfill
the Act's goal of facilitating ``a rapid, efficient, Nation-wide, and
world-wide wire and radio communication service.'' Additionally, the
Commisison extends to interconnected VoIP providers the obligation to
contribute to shared numbering administration costs. The Commission
believes that the steps the Commission takes today to ensure regulatory
parity among providers of similar services will minimize marketplace
distortions arising from regulatory advantage.
A. Scope
3. Consistent with the Commission's previous decisions in the IP-
Enabled Services proceeding, the Commission limits its decision to
interconnected VoIP providers, in part because, unlike certain other
IP-enabled services, the Commission continues to believe that
interconnected VoIP service ``is increasingly used to replace analog
voice service,'' including, in some cases, local exchange service.
Indeed, as interconnected VoIP service improves and proliferates,
consumers' expectations for these services trend toward their
expectations for other telephone services. Thus, consumers reasonably
expect interconnected VoIP services to include regulatory protections
such as emergency 911 service and LNP.
4. These characteristics of interconnected VoIP service support a
finding that it is appropriate to extend LNP obligations to include
such services, in light of the statute and Commission precedent.
Congress expressly directed the Commission to prescribe requirements
that all local exchange carriers (LECs) must meet to satisfy their
statutory LNP obligations. In doing so, the Commission has required
service providers that have not been found to be LECs but that are
expected to compete against LECs to comply with the LNP obligations set
forth in section 251(b)(2). In extending LNP rules to such providers,
the Commission concluded, among other things, that imposing such
obligations would ``promote competition between providers of local
telephone services and thereby promote competition between providers of
interstate access services.'' Specifically, the Commission found that
the availability of LNP would ``eliminat[e] one major disincentive to
switch carriers,'' and thus would facilitate ``the successful entrance
of new service providers'' covered by the LNP rules. Indeed, the
Commission determined that LNP not only would facilitate competition
between such new service providers and wireline telecommunications
carriers, but also would facilitate competition among the new service
providers themselves. The Commission anticipated that the enhanced
competition resulting from LNP would ``stimulate the development of new
services and technologies, and create incentives for carriers to lower
prices and costs.'' The Commission further concluded that
implementation of long-term LNP by these providers would help ensure
``efficient use and uniform administration'' of numbering resources.
For these same policy reasons, the Commission extends the LNP
obligations to interconnected VoIP providers.
5. To effectuate this policy, the Commission must address both the
obligations of interconnected VoIP providers as well as the obligations
of telecommunications carriers that serve interconnected VoIP providers
as their numbering partners. Thus, the Commission takes this
opportunity to reaffirm that only carriers, absent a Commission waiver,
may access numbering resources directly from the North American
Numbering Plan Administrator (NANPA) or the Pooling Administrator (PA).
Section 52.15(g)(2) of the Commission's rules limits access to the NANP
numbering resources to those applicants that are: (1) ``authorized to
provide service in the area for which the numbering resources are being
requested''; and (2) ``[are] or will be capable of providing service
within sixty (60) days of the numbering resources activation date.'' It
is well established that the Commission's rules allow only carriers
direct access to NANP numbering resources to ensure that the numbers
are used efficiently and to avoid number exhaust. Thus, many
interconnected VoIP providers may not obtain numbering resources
directly from the NANPA because they will not have obtained a license
or a certificate of public convenience and necessity from the relevant
states. Interconnected VoIP providers that have not obtained a license
or certificate of public convenience and necessity from the relevant
states or otherwise are not eligible to receive numbers directly from
the administrators may make numbers available to their customers
through commercial arrangements with carriers (i.e., numbering
partners). The Commission emphasizes that ensuring compliance with the
Commission's numbering rules, including LNP requirements, in such cases
remains the responsibility of the carrier that obtains the numbering
resource from the numbering administrator as well as the responsibility
of the interconnected VoIP provider. Additionally, with this
[[Page 9465]]
Order, the Commission clarifies that LECs and CMRS providers have an
obligation to port numbers to interconnected VoIP providers and their
numbering partners subject to a valid port request.
B. Authority
6. In this Order, the Commission concludes that the Commission has
ample authority to extend LNP obligations and numbering administration
support obligations to interconnected VoIP providers. Specifically, the
Commission concludes that it has authority to extend LNP obligations
and numbering administration support obligations to interconnected VoIP
providers and their numbering partners under the Commission's plenary
numbering authority pursuant to section 251(e) of the Act. The
Commission further finds authority in section 251(b)(2) of the Act for
the obligations it extends to numbering partners that serve
interconnected VoIP providers. Separately, the Commission analyzes the
extension of the Commission's rules to interconnected VoIP providers
under the Commission's Title I ancillary jurisdiction.
7. Plenary Numbering Authority. Consistent with Commission
precedent, the Commission finds that the plenary numbering authority
that Congress granted this Commission under section 251(e)(1) provides
ample authority to extend the LNP requirements set out in this Order to
interconnected VoIP providers and their numbering partners.
Specifically, in section 251(e)(1) of the Act, Congress expressly
assigned to the Commission exclusive jurisdiction over that portion of
the NANP that pertains to the United States. The Commission retained
its ``authority to set policy with respect to all facets of numbering
administration in the United States.'' To the extent that an
interconnected VoIP provider provides services that offer its customers
NANP telephone numbers, both the interconnected VoIP provider and the
telecommunications carrier that secures the numbering resource from the
numbering administrator subject themselves to the Commission's plenary
authority under section 251(e)(1) with respect to those numbers.
8. Section 251(b)(2) Authority over Telecommunications Carriers.
The Commission finds that section 251(b)(2) provides an additional
source of authority to impose LNP obligations on the LEC numbering
partners of interconnected VoIP providers. Section 251(b)(2) states
that all LECs have a ``duty to provide, to the extent technically
feasible, number portability in accordance with the requirements
prescribed by the Commission.'' The Commission has long held that it
has ``authority to require that number portability be implemented `to
the extent technically feasible' and that the Commission's authority
under section 251(b)(2) encompasses all forms of number portability.''
The Commission's application of this authority is informed by the Act's
focus on protecting consumers through number portability. Section 3 of
the Act defines ``number portability'' as ``the ability of users of
telecommunications services to retain, at the same location, existing
telecommunications numbers without impairment of quality, reliability,
or convenience when switching from one telecommunications carrier to
another.'' (emphasis added) In this Order, the Commission prescribes
requirements that expand number portability to include ports to and
from interconnected VoIP providers, and therefore find that section
251(b)(2) grants the Commission authority to impose obligations on the
interconnected VoIP providers' LEC numbering partners to effectuate
those requirements. By holding the LEC numbering partner responsible
for ensuring a porting request is honored to the extent technically
feasible, the Commission thus abides by this statutory mandate. The
Commission interprets section 251(b)(2) to include a number porting
obligation even when the switching of ``carriers'' occurs at the
wholesale rather than retail level. Given Congress's imposition of the
number portability obligations on all such carriers and the broad terms
of the obligation itself, the Commission believes that its
interpretation is a reasonable interpretation of the statute. To find
otherwise would permit carriers to avoid numbering obligations simply
by creating an interconnected VoIP provider affiliate and assigning the
number to such affiliate. Further, to ensure that consumers retain this
benefit as technology evolves, the Commission continues to believe that
Congress's intent is that number portability be a ``dynamic concept''
that accommodates such changes. The Commission previously has found
that it has the authority to alter the scope of porting obligations due
to technological changes in how numbers are ported. Similarly, the Act
provides ample authority for the logical extension of porting
obligations due to technological changes in how telephone service is
provided to end-user customers. The Commission exercises its authority
under the Act to ensure that consumers' interests in their existing
telephone numbers are adequately protected whether the customer is
using a telephone number obtained from a LEC directly or indirectly via
an interconnected VoIP provider. In either case, the LEC or LEC
numbering partner must comply with the Commission's LNP rules.
9. Ancillary Jurisdiction over Interconnected VoIP Services. The
Commission further concludes that the Commission has a separate
additional source of authority under Title I of the Act to impose LNP
obligations and numbering administration support obligations on
interconnected VoIP providers. Ancillary jurisdiction may be employed,
in the Commission's discretion, when Title I of the Act gives the
Commission subject matter jurisdiction over the service to be regulated
and the assertion of jurisdiction is ``reasonably ancillary to the
effective performance of [its] various responsibilities.'' Both
predicates for ancillary jurisdiction are satisfied here.
10. First, as the Commission concluded in previous orders,
interconnected VoIP services fall within the subject matter
jurisdiction granted to the Commission in the Act. Section 1 of the
Act, moreover, charges the Commission with responsibility for making
available ``a rapid, efficient, Nation-wide, and world-wide wire and
radio communication service.'' Thus, section 1, in conjunction with
section 251, creates a significant federal interest in the efficient
use of numbering resources. Second, the Commission finds that requiring
interconnected VoIP providers to comply with LNP rules and cost
recovery mechanisms is reasonably ancillary to the effective
performance of the Commission's fundamental responsibilities. As noted
above, section 251(b)(2) of the Act requires LECs to provide number
portability in accordance with the requirements prescribed by the
Commission to the extent technically feasible. Further, section
251(e)(2) requires all carriers to bear the costs of numbering
administration and number portability on a competitively neutral basis
as defined by the Commission, and thereby seeks to prevent those costs
from undermining competition. The Commission has interpreted section
251(e)(2) broadly to extend to all carriers that utilize NANP telephone
numbers and benefit from number portability. In addition, as discussed
above, section 1 of the Act charges the Commission with responsibility
for making available ``a rapid, efficient, Nation-wide, and world-wide
wire and radio communication service.'' Because
[[Page 9466]]
interconnected VoIP service operates through the use of NANP telephone
numbers and benefits from NANP administration and because this service
is ``increasingly used to replace analog voice service''--a trend that
the Commission expects to continue--it is important that the Commission
take steps to ensure that interconnected VoIP service use of NANP
numbers does not disrupt national policies adopted pursuant to section
251. As the Commission previously has stated, the Commission
``believe[s] it is important that [the Commission] adopt uniform
national rules regarding number portability implementation and
deployment to ensure efficient and consistent use of number portability
methods and numbering resources on a nationwide basis. Implementation
of number portability, and its effect on numbering resources, will have
an impact on interstate, as well as local, telecommunications
services.'' Additionally, the Commission has found that those providers
that benefit from number resources should also bear the costs.
11. Extending LNP obligations to interconnected VoIP providers is
``reasonably ancillary'' to the performance of the Commission's
obligations under section 251 and section 1 of the Act. If the
Commission failed to do so, American consumers might not benefit from
new technologies because they would be unable to transfer their NANP
telephone numbers between service providers and thus would be less
likely to want to use a new provider. As a result, the purposes and
effectiveness of section 251, as well as section 1, would be greatly
undermined. The ability of end users to retain their NANP telephone
numbers when changing service providers gives customers flexibility in
the quality, price, and variety of services they can choose to
purchase. Allowing customers to respond to price and service changes
without changing their telephone numbers will enhance competition, a
fundamental goal of section 251 of the Act, while helping to fulfill
the Act's goal of facilitating ``a rapid, efficient, Nation-wide, and
world-wide wire and radio communication service.''
12. Further, if the Commission failed to exercise its ancillary
jurisdiction, interconnected VoIP providers would sustain a competitive
advantage against telecommunications carriers through the use and
porting of NANP telephone numbers without bearing their share of the
costs of LNP and NANP administration, thus defeating the critical
requirement under section 251(e) that carriers bear such costs on a
competitively neutral basis. Additionally, the Commission extends the
LNP obligations to interconnected VoIP providers because doing so will
have a positive impact on the efficient use of the Commission's limited
numbering resources. The Commission avoids number waste by preventing
an interconnected VoIP provider from porting-in a number from a carrier
(often through its numbering partner) and then later refusing to port-
out at the customer's request by arguing that no such porting
obligation exists. Failure to extend LNP obligations to interconnected
VoIP providers and their numbering partners would thwart the effective
and efficient administration of the Commission's numbering
administration responsibilities under section 251 of the Act.
Therefore, extending the LNP and numbering administration support
obligations to interconnected VoIP providers is ``reasonably ancillary
to the effective performance of the Commission's * * *
responsibilities'' under sections 251 and 1 of the Act and ``will
`further the achievement of long-established regulatory goals'' ' to
make available an efficient and competitive communication service.
13. The Commission believes that the language in section 251(e)(2),
which phrases the obligation to contribute to the costs of numbering
administration as applicable to ``all telecommunications carriers,''
reflects Congress's intent to ensure that no telecommunications
carriers were omitted from the contribution obligation, and does not
preclude the Commission from exercising its ancillary authority to
require other providers of comparable services to make such
contributions. Thus, the language does not circumscribe the class of
carriers that may be required to support numbering administration. The
legislative history of the Telecommunications Act of 1996 (1996 Act)
supports this view and indicates that Congress desired that such costs
be borne by ``all providers.'' Because interconnected VoIP services are
increasingly being used as a substitute for traditional telephone
service, the Commission finds that its exercise of ancillary authority
to require contributions from interconnected VoIP providers is
consistent with this statutory language and Congressional intent. The
statutory construction maxim of expressio unius est exclusio alterius--
the mention of one thing implies the exclusion of another--does not
require a different result. This maxim is non-binding and ``is often
misused.'' ``The maxim's force in particular situations depends
entirely on context, whether or not the draftsmen's mention of one
thing, like a grant of authority, does really necessarily, or at least
reasonably, imply the preclusion of alternatives.'' Here, the
Commission believes that the relevant language in section 251(e)(2) was
designed to ensure that no telecommunications carriers were omitted
from the contribution obligation, and not to preclude the Commission
from exercising its ancillary authority to require others to make such
contributions. Absent any affirmative evidence that Congress intended
to limit the Commission's judicially recognized ancillary jurisdiction
in this area, the Commission finds that the expressio unius maxim ``is
simply too thin a reed to support the conclusion that Congress has
clearly resolved [the] issue.''
14. The Commission also notes that its actions here are consistent
with other provisions of the Act. For example, the Commission is guided
by section 706 of the 1996 Act, which, among other things, directs the
Commission to encourage the deployment of advanced telecommunications
capability to all Americans by using measures that ``promote
competition in the local telecommunications market.'' The extension of
the LNP obligations to interconnected VoIP providers may spur consumer
demand for their service, in turn driving demand for broadband
connections, and consequently encouraging more broadband investment and
deployment consistent with the goals of section 706.
C. Local Number Portability Obligations
15. As the Commission discusses in detail above, imposing LNP and
numbering administration support requirements on interconnected VoIP
providers and their numbering partners is consistent with both the
language of the Act and the Commission's policies implementing the LNP
obligations. To ensure that consumers enjoy the full benefits of LNP
and to maintain competitively neutral funding of numbering
administration, the Commission imposes specific requirements to
effectuate this policy.
16. Porting Obligations of an Interconnected VoIP Provider and its
Numbering Partner. As discussed above, section 3 of the Act defines
local ``number portability'' as ``the ability of users of
telecommunications services to retain, at the same location, existing
telecommunications numbers without impairment of quality, reliability,
or convenience when switching from one
[[Page 9467]]
telecommunications carrier to another.'' The Commission finds that the
``user'' in this context is the end-user customer that subscribes to
the interconnected VoIP service and not the interconnected VoIP
provider. To find otherwise would contravene the LNP goals of
``allowing customers to respond to price and service changes without
changing their telephone numbers.'' Thus, it is the end-user customer
that retains the right to port-in the number to an interconnected VoIP
service or to port-out the number from an interconnected VoIP service.
17. As discussed above, both an interconnected VoIP provider and
its numbering partner must facilitate a customer's porting request to
or from an interconnected VoIP provider. By ``facilitate,'' the
Commission means that the interconnected VoIP provider has an
affirmative legal obligation to take all steps necessary to initiate or
allow a port-in or port-out itself or through its numbering partner on
behalf of the interconnected VoIP customer (i.e., the ``user''),
subject to a valid port request, without unreasonable delay or
unreasonable procedures that have the effect of delaying or denying
porting of the number. The Commission recognizes that when an
interconnected VoIP provider obtains NANP telephone numbers and LNP
capability through a numbering partner, the interconnected VoIP
provider does not itself execute the port of the number from a
technical perspective. In such situations, the interconnected VoIP
provider must take any steps necessary to facilitate its numbering
partner's technical execution of the port.
18. The Commission also finds that interconnected VoIP providers
and their numbering partners may not enter into agreements that would
prohibit or unreasonably delay an interconnected VoIP service end user
from porting between interconnected VoIP providers, or to or from a
wireline carrier or a covered CMRS provider. Because LNP promotes
competition and consumer choice, the Commission finds that any
agreement by interconnected VoIP providers or their numbering partners
that prohibits or unreasonably delays porting could undermine the
benefits of LNP to consumers. Additionally, because the Commission
determines that the carrier that obtains the number from the NANPA is
also responsible for ensuring compliance with these obligations, such
porting-related restrictions would contravene that carrier's section
251(b)(2) obligation. To the extent that carriers with direct access to
numbers do not have an LNP obligation, that exemption from LNP only
extends to the exempt service and not to that carrier's activities as a
numbering partner for an interconnected VoIP provider. If an
interconnected VoIP provider or its numbering partner attempts to
thwart an end user's valid porting request, that provider or carrier
will be subject to Commission enforcement action for a violation of the
Act and the Commission's LNP rules. Further, no interconnected VoIP
provider may contract with its customer to prevent or hinder the rights
of that customer to port its number because doing so would violate the
LNP obligations placed on interconnected VoIP providers in this Order.
To the extent that interconnected VoIP providers have existing
contractual provisions that have the effect of unreasonably delaying or
denying porting, such provisions do not supersede or otherwise affect
the porting obligations established in this Order.
19. Scope of Porting Obligations. The Commission's porting
obligations vary depending on whether a service is provided by a
wireline carrier or a covered CMRS provider. As described above,
interconnected VoIP providers generally obtain NANP telephone numbers
through commercial arrangements with one or more traditional
telecommunications carriers. As a result, the porting obligations to or
from an interconnected VoIP service stem from the status of the
interconnected VoIP provider's numbering partner and the status of the
provider to or from which the NANP telephone number is ported. For
example, subject to a valid port request on behalf of the user, an
interconnected VoIP provider that partners with a wireline carrier for
numbering resources must, in conjunction with its numbering partner,
port-out a NANP telephone number to: (1) A wireless carrier whose
coverage area overlaps with the geographic location of the porting-out
numbering partner's rate center; (2) a wireline carrier with facilities
or numbering resources in the same rate center; or (3) another
interconnected VoIP provider whose numbering partner meets the
requirements of (1) or (2). Similarly, subject to a valid port request
on behalf of the user, an interconnected VoIP provider that partners
with a covered CMRS provider for numbering resources must, in
conjunction with its numbering partner, port-out a NANP telephone
number to: (1) Another wireless carrier; (2) a wireline carrier within
the telephone number's originating rate center; or (3) another
interconnected VoIP provider whose numbering partner meets the
requirements of (1) or (2).
20. The Commission notes that because interconnected VoIP providers
offer telephone numbers not necessarily based on the geographic
location of their customers--many times at their customers' requests--
there may be limits to number porting between providers. The Act only
provides for service provider portability and does not address service
or location portability. See First Number Portability Order, 11 FCC Rcd
at 8447, para. 181. Thus, for example, if an interconnected VoIP
service customer selects a number outside his current rate center, or
if the interconnected VoIP service customer selects a number within his
geographic rate center and moves out of that rate center, and then
requests porting to a wireline carrier in his new rate center, the
customer would not be able to port the number. See 47 CFR 52.26(a). The
Commission expects interconnected VoIP providers to fully inform their
customers about these limitations, particularly limitations that result
from the portable nature of, and use of non-geographic numbers by,
certain interconnected VoIP services.
21. The Commission also clarifies that carriers have an obligation
under the Commission's rules to port-out NANP telephone numbers, upon
valid request, for a user that is porting that number for use with an
interconnected VoIP service. For example, subject to a valid port
request on behalf of the user, a wireline carrier must port-out a NANP
telephone number to: (1) An interconnected VoIP provider that partners
with a wireless carrier for numbering resources, where the partnering
wireless carrier's coverage area overlaps with the geographic location
of the porting-out wireline carrier's rate center; or (2) an
interconnected VoIP provider that partners with a wireline carrier for
numbering resources, where the partnering wireline carrier has
facilities or numbering resources in the same rate center as the
porting-out wireline carrier. Similarly, subject to a valid port
request on behalf of the user, a wireless carrier must port-out a NANP
telephone number to: (1) An interconnected VoIP provider that partners
with a wireless carrier; or (2) an interconnected VoIP provider that
partners with a wireline carrier for numbering resources, where the
partnering wireline carrier is within the number's originating rate
center. The Commission clarifies that carriers must port-out NANP
telephone numbers upon valid requests from an interconnected VoIP
provider (or from its associated numbering partner). To
[[Page 9468]]
the extent that an interconnected VoIP provider is certificated or
licensed as a carrier, then the Title II LNP obligations to port-in or
port-out to the carrier are already determined by existing law. See,
e.g., 47 CFR 52.26(a).
22. The Commission declines to adopt new porting intervals that
apply specifically to ports between interconnected VoIP providers and
other providers through a numbering partner. The intervals that would
be applicable to ports between the numbering partner and the other
provider, if the port were not related to an interconnected VoIP
service, will apply to the port of the NANP telephone number between
the numbering partner and the other provider (or the other provider's
numbering partner) when the end user with porting rights is a customer
of the interconnected VoIP provider.
23. The Commission takes seriously its responsibilities to
safeguard the Commission's scarce numbering resources and to implement
LNP obligations for the benefit of consumers. Consumers, carriers, or
interconnected VoIP providers may file complaints with the Commission
if they experience unreasonable delay or denial of number porting to or
from an interconnected VoIP provider in violation of the Commission's
LNP rules. The Commission will not hesitate to enforce its LNP rules to
ensure that consumers are free to choose among service providers,
subject to its LNP rules, without fear of losing their telephone
numbers.
24. Allocation of LNP Costs. Section 251(e)(2) provides that
``[t]he cost of establishing telecommunications numbering
administration arrangements and number portability shall be borne by
all telecommunications carriers on a competitively neutral basis as
determined by the Commission.'' Because interconnected VoIP providers
benefit from LNP, the Commission finds that they should contribute to
meet the shared LNP costs. Further, similar to the Commission's finding
in its Cost Recovery Reconsideration Order, the Commission also
believes that interconnected VoIP providers may find it costly and
administratively burdensome to develop region-specific attribution
systems for all of their end-user services, and thus the Commission
allows these providers to use a proxy based on the percentage of
subscribers a provider serves in a particular region for reaching an
estimate for allocating their end-user revenues to the appropriate
regional LNPA. Providers that submit an attestation certifying that
they are unable to divide their traffic and resulting end-user revenue
among the seven LNPA regions precisely will be allowed to divide their
end-user revenue among these regions based on the percentage of
subscribers served in each region. Providers may use their billing
databases to identify subscriber location.
D. Numbering Administration Cost Requirements
25. Although interconnected VoIP providers do not have any specific
numbering administration requirements (e.g., pooling requirements),
they do require the use of NANP numbering resources to provide an
interconnected VoIP service, and thereby benefit from and impose costs
related to numbering administration. Thus, the Commission requires
interconnected VoIP providers to contribute to meet the shared
numbering administration costs on a competitively neutral basis.
E. Implementation
26. The LNP obligations adopted in this Order for interconnected
VoIP providers and their numbering partners become effective 30 days
after Federal Register publication. The reporting requirements for
determining interconnected VoIP providers' contribution to the shared
costs of numbering administration and LNP require interconnected VoIP
providers to file an annual FCC Form 499-A. To ensure that
interconnected VoIP providers' contributions for numbering
administration and LNP are allocated properly, interconnected VoIP
providers should include in their annual FCC Form 499-A filing
historical revenue information for the relevant year, including all
information necessary to allocate revenues across the seven LNPA
regions (e.g., January 2007 through December 2007 revenue information
for the April 2008 filing). The Commission will revise FCC Form 499-A
at a later date, consistent with the rules and policies outlined in
this Order. Interconnected VoIP providers, however, should familiarize
themselves with the FCC Form 499-A and the accompanying instructions in
preparation for this filing. Based on these filings, the appropriate
administrators will calculate the funding base and individual
contributions for each support mechanism, and provide an invoice to
each interconnected VoIP provider for its contribution to the shared
costs of the respective support mechanism. The Commission finds that
USAC should be prepared to collect this information with the next
annual filing, and that the LNPA and the NANP billing and collection
agent should be prepared to include interconnected VoIP provider
revenues in their calculations for the 2008 funding year based on the
next annual FCC Form 499-A filings.
Synopsis of Order on Remand
27. In its 2003 Intermodal Number Portability Order (68 FR 68831,
Dec. 10, 2003), the Commission clarified that porting from a wireline
carrier to a wireless carrier is required where the requesting wireless
carrier's coverage area overlaps the geographic location in which the
wireline number is provisioned, provided that the porting-in carrier
maintains the number's original rate center designation following the
port. On March 11, 2005, the United States Court of Appeals for the
District of Columbia Circuit remanded the Intermodal Number Portability
Order to the Commission. The court determined that the Intermodal
Number Portability Order resulted in a legislative rule, and that the
Commission had failed to prepare a FRFA regarding the impact of that
rule on small entities, as required by the RFA. The court accordingly
directed the Commission to prepare the required FRFA, and stayed future
enforcement of the Intermodal Number Portability Order ``as applied to
carriers that qualify as small entities under the RFA'' until the
agency prepared and published that analysis. On April 22, 2005, the
Commission issued a Public Notice seeking comment on an IRFA of the
Intermodal Number Portability Order (70 FR 41655, July 20, 2005).
28. In accordance with the requirements of the RFA, the Commission
has considered the potential economic impact of the intermodal porting
rules on small entities and concludes that wireline carriers qualifying
as small entities under the RFA will be required to provide wireline-
to-wireless intermodal porting where the requesting wireless carrier's
``coverage area'' overlaps the geographic location in which the
customer's wireline number is provisioned, provided that the porting-in
carrier maintains the number's original rate center designation
following the port. The Commission has prepared a FRFA as directed by
the court, which is the second of two FRFAs set forth below.
Final Regulatory Flexibility Analysis, WC Docket No. 04-36
(Interconnected VoIP Services)
1. As required by the Regulatory Flexibility Act of 1980, as
amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was
incorporated in the
[[Page 9469]]
IP-Enabled Services Notice in WC Docket No. 04-36 (69 FR 16193, Mar.
29, 2004). The Commission sought written public comment on the
proposals in the notice, including comment on the IRFA. The Commission
received comments specifically directed toward the IRFA from three
commenters in WC Docket No. 04-36. These comments are discussed below.
This Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.
A. Need for, and Objectives of, the Rules
2. This Report and Order extends LNP obligations to interconnected
voice over Internet Protocol (VoIP) providers to ensure that customers
of such VoIP providers may port their North American Numbering Plan
(NANP) telephone numbers when changing providers. Consumers will now be
able to take advantage of new telephone services without losing their
telephone numbers, which should in turn facilitate greater competition
among telephony providers by allowing customers to respond to price and
service changes. Additionally, this Report and Order extends to
interconnected VoIP providers the obligation to contribute to shared
numbering administration and number portability costs. The Commission
believes these steps it takes to ensure regulatory parity among
providers of similar services will minimize marketplace distortions
arising from regulatory advantage.
B. Summary of Significant Issues Raised by Public Comments in Response
to the IRFA
3. In this section, the Commission responds to comments filed in
response to the IRFA. To the extent the Commission received comments
raising general small business concerns during this proceeding, those
comments are discussed throughout the Report and Order.
4. The Small Business Administration (SBA) comments that the
Commission's Notice does not contain concrete proposals and is more
akin to an advance notice of proposed rulemaking or a notice of
inquiry. The Commission disagrees with the SBA and Menard that the
Commission should postpone acting in this proceeding--thereby
postponing extending the application of the LNP and numbering
administration support obligations to interconnected VoIP services--and
instead should reevaluate the economic impact and the compliance
burdens on small entities and issue a further notice of proposed
rulemaking in conjunction with a supplemental IRFA identifying and
analyzing the economic impacts on small entities and less burdensome
alternatives. The Commission believes these additional steps suggested
by SBA and Menard are unnecessary because small entities already have
received sufficient notice of the issues addressed in today's Report
and Order, and because the Commission has considered the economic
impact on small entities and what ways are feasible to minimize the
burdens imposed on those entities, and, to the extent feasible, has
implemented those less burdensome alternatives. The IP-Enabled Services
Notice specifically sought comment on whether numbering obligations are
appropriate in the context of IP-enabled services and whether action
relating to numbering resources is desirable to facilitate the growth
of IP-enabled services, while at the same time continuing to maximize
the use and life of numbering resources in the North American Numbering
Plan. The Commission published a summary of that notice in the Federal
Register. See Regulatory Requirements for IP-Enabled Services, WC
Docket No. 04-36, Notice of Proposed Rulemaking, 69 FR 16193 (Mar. 29,
2004). The Commission notes that a number of small entities submitted
comments in this proceeding.
C. Description and Estimate of the Number of Small Entities to Which
Rules Will Apply
5. The RFA directs agencies to provide a description of and, where
feasible, an estimate of the number of small entities that may be
affected by the rules adopted herein. The RFA generally defines the
term ``small entity'' as having the same meaning as the terms ``small
business,'' ``small organization,'' and ``small governmental
jurisdiction.'' In addition, the term ``small business'' has the same
meaning as the term ``small business concern'' under the Small Business
Act. A small business concern is one which: (1) Is independently owned
and operated; (2) is not dominant in its field of operation; and (3)
satisfies any additional criteria established by the SBA.
6. Small Businesses. Nationwide, there are a total of approximately
22.4 million small businesses according to SBA data.
7. Small Organizations. Nationwide, there are approximately 1.6
million small organizations.
8. Small Governmental Jurisdictions. The term ``small governmental
jurisdiction'' is defined generally as ``governments of cities, towns,
townships, villages, school districts, or special districts, with a
population of less than fifty thousand.'' Census Bureau data for 2002
indicate that there were 87,525 local governmental jurisdictions in the
United States. The Commission estimates that, of this total, 84,377
entities were ``small governmental jurisdictions.'' Thus, the
Commission estimates that most governmental jurisdictions are small.
1. Telecommunications Service Entities
a. Wireline Carriers and Service Providers
9. The Commission has included small incumbent local exchange
carriers (LECs) in this present RFA analysis. As noted above, a ``small
business'' under the RFA is one that, inter alia, meets the pertinent
small business size standard (e.g., a telephone communications business
having 1,500 or fewer employees) and ``is not dominant in its field of
operation.'' The SBA's Office of Advocacy contends that, for RFA
purposes, small incumbent LECs are not dominant in their field of
operation because any such dominance is not ``national'' in scope. The
Commission has therefore included small incumbent LECs in this RFA
analysis, although the Commission emphasizes that this RFA action has
no effect on Commission analyses and determinations in other, non-RFA
contexts.
10. Incumbent LECs. Neither the Commission nor the SBA has
developed a small business size standard specifically for incumbent
LECs. The appropriate size standard under SBA rules is for the category
Wired Telecommunications Carriers. Under that size standard, such a
business is small if it has 1,500 or fewer employees. According to
Commission data, 1,303 carriers have reported that they are engaged in
the provision of incumbent local exchange services. Of these 1,303
carriers, an estimated 1,020 have 1,500 or fewer employees and 283 have
more than 1,500 employees. Consequently, the Commission estimates that
most providers of incumbent local exchange service are small businesses
that may be affected by the Commission's action.
11. Competitive LECs, Competitive Access Providers (CAPs),
``Shared-Tenant Service Providers,'' and ``Other Local Service
Providers.'' Neither the Commission nor the SBA has developed a small
business size standard specifically for these service providers. The
appropriate size standard under SBA rules is for the category Wired
Telecommunications Carriers. Under that size standard, such a business
is small if it has 1,500 or fewer employees. According to Commission
data, 859 carriers have reported that they are engaged in the provision
of either competitive access provider services or
[[Page 9470]]
competitive LEC services. Of these 859 carriers, an estimated 741 have
1,500 or fewer employees and 118 have more than 1,500 employees. In
addition, 16 carriers have reported that they are ``Shared-Tenant
Service Providers,'' and all 16 are estimated to have 1,500 or fewer
employees. In addition, 44 carriers have reported that they are ``Other
Local Service Providers.'' Of the 44, an estimated 43 have 1,500 or
fewer employees and one has more than 1,500 employees. Consequently,
the Commission estimates that most providers of competitive local
exchange service, competitive access providers, ``Shared-Tenant Service
Providers,'' and ``Other Local Service Providers'' are small entities.
12. Local Resellers. The SBA has developed a small business size
standard for the category of Telecommunications Resellers. Under that
size standard, such a business is small if it has 1,500 or fewer
employees. According to Commission data, 184 carriers have reported
that they are engaged in the provision of local resale services. Of
these, an estimated 181 have 1,500 or fewer employees and three have
more than 1,500 employees. Consequently, the Commission estimates that
the majority of local resellers are small entities that may be affected
by the Commission's action.
13. Toll Resellers. The SBA has developed a small business size
standard for the category of Telecommunications Resellers. Under that
size standard, such a business is small if it has 1,500 or fewer
employees. According to Commission data, 881 carriers have reported
that they are engaged in the provision of toll resale services. Of
these, an estimated 853 have 1,500 or fewer employees and 28 have more
than 1,500 employees. Consequently, the Commission estimates that the
majority of toll resellers are small entities that may be affected by
the Commission's action.
14. Payphone Service Providers (PSPs). Neither the Commission nor
the SBA has developed a small business size standard specifically for
payphone services providers. The appropriate size standard under SBA
rules is for the category Wired Telecommunications Carriers. Under that
size standard, such a business is small if it has 1,500 or fewer
employees. According to Commission data, 657 carriers have reported
that they are engaged in the provision of payphone services. Of these,
an estimated 653 have 1,500 or fewer employees and four have more than
1,500 employees. Consequently, the Commission estimates that the
majority of payphone service providers are small entities that may be
affected by the Commission's action.
15. Interexchange Carriers (IXCs). Neither the Commission nor the
SBA has developed a small business size standard specifically for
providers of interexchange services. The appropriate size standard
under SBA rules is for the category Wired Telecommunications Carriers.
Under that size standard, such a business is small if it has 1,500 or
fewer employees. According to Commission data, 330 carriers have
reported that they are engaged in the provision of interexchange
service. Of these, an estimated 309 have 1,500 or fewer employees and
21 have more than 1,500 employees. Consequently, the Commission
estimates that the majority of IXCs are small entities that may be
affected by the Commission's action.
16. Operator Service Providers (OSPs). Neither the Commission nor
the SBA has developed a small business size standard specifically for
operator service providers. The appropriate size standard under SBA
rules is for the category Wired Telecommunications Carriers. Under that
size standard, such a business is small if it has 1,500 or fewer
employees. According to Commission data, 23 carriers have reported that
they are engaged in the provision of operator services. Of these, an
estimated 22 have 1,500 or fewer employees and one has more than 1,500
employees. Consequently, the Commission estimates that the majority of
OSPs are small entities that may be affected by the Commission's
action.
17. Prepaid Calling Card Providers. Neither the Commission nor the
SBA has developed a small business size standard specifically for
prepaid calling card providers. The appropriate size standard under SBA
rules is for the category Telecommunications Resellers. Under that size
standard, such a business is small if it has 1,500 or fewer employees.
According to Commission data, 104 carriers have reported that they are
engaged in the provision of prepaid calling cards. Of these, 102 are
estimated to have 1,500 or fewer employees and two have more than 1,500
employees. Consequently, the Commission estimates that all or the
majority of prepaid calling card providers are small entities that may
be affected by the Commission's action.
18. 800 and 800-Like Service Subscribers. These toll-free services
fall within the broad economic census category of Telecommunications
Resellers. This category ``comprises establishments engaged in
purchasing access and network capacity from owners and operators of
telecommunications networks and reselling wired and wireless
telecommunications services (except satellite) to businesses and
households. Establishments in this industry resell telecommunications;
they do not operate transmission facilities and infrastructure.'' The
SBA has developed a small business size standard for this category,
which is: all such firms having 1,500 or fewer employees. Census Bureau
data for 2002 show that there were 1,646 firms in this category that
operated for the entire year. Of this total, 1,642 firms had employment
of 999 or fewer employees, and four firms had employment of 1,000
employees or more. Thus, the majority of these firms can be considered
small. Additionally, it may be helpful to know the total numbers of
telephone numbers assigned in these services. Commission data show
that, as of June 2006, the total number of 800 numbers assigned was
7,647,941, the total number of 888 numbers assigned was 5,318,667, the
total number of 877 numbers assigned was 4,431,162, and the total
number of 866 numbers assigned was 6,008,976.
b. International Service Providers
19. The Commission has not developed a small business size standard
specifically for providers of international service. The appropriate
size standards under SBA rules are for the two broad census categories
of ``Satellite Telecommunications'' and ``Other Telecommunications.''
Under both categories, such a business is small if it has $13.5 million
or less in average annual receipts.
20. The first category of Satellite Telecommunications ``comprises
establishments primarily engaged in providing point-to-point
telecommunications services to other establishments in the
telecommunications and broadcasting industries by forwarding and
receiving communications signals via a system of satellites or
reselling satellite telecommunications.'' For this category, Census
Bureau data for 2002 show that there were a total of 371 firms that
operated for the entire year. Of this total, 307 firms had annual
receipts of under $10 million, and 26 firms had receipts of $10 million
to $24,999,999. Consequently, the Commission estimates that the
majority of Satellite Telecommunications firms are small entities that
might be affected by the Commission's action.
21. The second category of Other Telecommunications ``comprises
establishments primarily engaged in (1) providing specialized
telecommunications applications, such as satellite tracking,
communications
[[Page 9471]]
telemetry, and radar station operations; or (2) providing satellite
terminal stations and associated facilities operationally connected
with one or more terrestrial communications systems and capable of
transmitting telecommunications to or receiving telecommunications from
satellite systems.'' For this category, Census Bureau data for 2002
show that there were a total of 332 firms that operated for the entire
year. Of this total, 259 firms had annual receipts of under $10 million
and 15 firms had annual receipts of $10 million to $24,999,999.
Consequently, the Commission estimates that the majority of Other
Telecommunications firms are small entities that might be affected by
the Commission's action.
c. Wireless Telecommunications Service Providers
22. Below, for those services subject to auctions, the Commission
notes that, as a general matter, the number of winning bidders that
qualify as small businesses at the close of an auction does not
necessarily represent the number of small businesses currently in
service. Also, the Commission does not generally track subsequent
business size unless, in the context of assignments or transfers,
unjust enrichment issues are implicated.
23. Wireless Service Providers. The SBA has developed a small
business size standard for wireless firms within the two broad economic
census categories of ``Paging'' and ``Cellular and Other Wireless
Telecommunications.'' Under both SBA categories, a wireless business is
small if it has 1,500 or fewer employees. For the census category of
Paging, Census Bureau data for 2002 show that there were 807 firms in
this category that operated for the entire year. Of this total, 804
firms had employment of 999 or fewer employees, and three firms had
employment of 1,000 employees or more. Thus, under this category and
associated small business size standard, the majority of firms can be
considered small. For the census category of Cellular and Other
Wireless Telecommunications, Census Bureau data for 2002 show that
there were 1,397 firms in this category that operated for the entire
year. Of this total, 1,378 firms had employment of 999 or fewer
employees, and 19 firms had employment of 1,000 employees or more.
Thus, under this second category and size standard, the majority of
firms can, again, be considered small.
24. Cellular Licensees. The SBA has developed a small business size
standard for wireless firms within the broad economic census category
``Cellular and Other Wireless Telecommunications.'' Under this SBA
category, a wireless business is small if it has 1,500 or fewer
employees. For the census category of Cellular and Other Wireless
Telecommunications, Census Bureau data for 2002 show that there were
1,397 firms in this category that operated for the entire year. Of this
total, 1,378 firms had employment of 999 or fewer employees, and 19
firms had employment of 1,000 employees or more. Thus, under this
category and size standard, the majority of firms can be considered
small. Also, according to Commission data, 437 carriers reported that
they were engaged in the provision of cellular service, Personal
Communications Service (PCS), or Specialized Mobile Radio (SMR)
Telephony services, which are placed together in the data. The
Commission has estimated that 260 of these are small under the SBA
small business size standard.
25. Paging. The SBA has developed a small business size standard
for the broad economic census category of ``Paging.'' Under this
category, the SBA deems a wireless business to be small if it has 1,500
or fewer employees. Census Bureau data for 2002 show that there were
807 firms in this category that operated for the entire year. Of this
total, 804 firms had employment of 999 or fewer employees, and three
firms had employment of 1,000 employees or more. In addition, according
to Commission data, 365 carriers have reported that they are engaged in
the provision of ``Paging and Messaging Service.'' Of this total, the
Commission estimates that 360 have 1,500 or fewer employees, and five
have more than 1,500 employees. Thus, in this category the majority of
firms can be considered small.
26. The Commission also notes that, in the Paging Second Report and
Order (62 FR 11616, Mar. 12, 1997), the Commission adopted a size
standard for ``small businesses'' for purposes of determining their
eligibility for special provisions such as bidding credits and
installment payments. In this context, a small business is an entity
that, together with its affiliates and controlling principals, has
average gross revenues not exceeding $15 million for the preceding
three years. The SBA has approved this definition. An auction of
Metropolitan Economic Area (MEA) licenses commenced on February 24,
2000, and closed on March 2, 2000. Of the 2,499 licenses auctioned, 985
were sold. Fifty-seven companies claiming small business status won 440
licenses. An auction of MEA and Economic Area (EA) licenses commenced
on October 30, 2001, and closed on December 5, 2001. Of the 15,514
licenses auctioned, 5,323 were sold. One hundred thirty-two companies
claiming small business status purchased 3,724 licenses. A third
auction, consisting of 8,874 licenses in each of 175 EAs and 1,328
licenses in all but three of the 51 MEAs commenced on May 13, 2003, and
closed on May 28, 2003. Seventy-seven bidders claiming small or very
small business status won 2,093 licenses. The Commission also notes
that, currently, there are approximately 74,000 Common Carrier Paging
licenses.
27. Wireless Communications Services. This service can be used for
fixed, mobile, radiolocation, and digital audio broadcasting satellite
uses. The Commission established small business size standards for the
wireless communications services (WCS) auction. A ``small business'' is
an entity with average gross revenues of $40 million or less for each
of the three preceding years, and a ``very small business'' is an
entity with average gross revenues of $15 million or less for each of
the three preceding years. The SBA has approved these small business
size standards. The Commission auctioned geographic area licenses in
the WCS service. In the auction, there were seven winning bidders that
qualified as ``very small business'' entities, and one that qualified
as a ``small business'' entity.
28. Wireless Telephony. Wireless telephony includes cellular,
personal communications services (PCS), and specialized mobile radio
(SMR) telephony carriers. As noted earlier, the SBA has developed a
small business size standard for ``Cellular and Other Wireless
Telecommunications'' services. Under that SBA small business size
standard, a business is small if it has 1,500 or fewer employees.
According to Commission data, 432 carriers reported that they were
engaged in the provision of wireless telephony. The Commission has
estimated that 221 of these are small under the SBA small business size
standard.
29. Broadband Personal Communications Service. The broadband
Personal Communications Service (PCS) spectrum is divided into six
frequency blocks designated A through F, and the Commission has held
auctions for each block. The Commission defined ``small entity'' for
Blocks C and F as an entity that has average gross revenues of $40
million or less in the three previous calendar years. For Block F, an
additional classification for ``very small business'' was added and is
defined as an entity that, together with its affiliates, has average
gross revenues of not more than
[[Page 9472]]
$15 million for the preceding three calendar years. These standards
defining ``small entity'' in the context of broadband PCS auctions have
been approved by the SBA. No small businesses, within the SBA-approved
small business size standards bid successfully for licenses in Blocks A
and B. There were 90 winning bidders that qualified as small entities
in the Block C auctions. A total of 93 small and very small business
bidders won approximately 40 percent of the 1,479 licenses for Blocks
D, E, and F. On March 23, 1999, the Commission re-auctioned 347 C, D,
E, and F Block licenses. There were 48 small business winning bidders.
On January 26, 2001, the Commission completed the auction of 422 C and
F Broadband PCS licenses in Auction No. 35. Of the 35 winning bidders
in this auction, 29 qualified as ``small'' or ``very small''
businesses. Subsequent events, concerning Auction 35, including
judicial and agency determinations, resulted in a total of 163 C and F
Block licenses being available for grant.
30. Narrowband Personal Communications Services. The Commission
held an auction for Narrowband PCS licenses that commenced on July 25,
1994, and closed on July 29, 1994. A second auction commenced on
October 26, 1994 and closed on November 8, 1994. For purposes of the
first two Narrowband PCS auctions, ``small businesses'' were entities
with average gross revenues for the prior three calendar years of $40
million or less. Through these auctions, the Commission awarded a total
of 41 licenses, 11 of which were obtained by four small businesses. To
ensure meaningful participation by small business entities in future
auctions, the Commission adopted a two-tiered small business size
standard in the Narrowband PCS Second Report and Order (65 FR 35875,
Jun. 6, 2000). A ``small business'' is an entity that, together with
affiliates and controlling interests, has average gross revenues for
the three preceding years of not more than $40 million. A ``very small
business'' is an entity that, together with affiliates and controlling
interests, has average gross revenues for the three preceding years of
not more than $15 million. The SBA has approved these small business
size standards. A third auction commenced on October 3, 2001 and closed
on October 16, 2001. Here, five bidders won 317 (Metropolitan Trading
Areas and nationwide) licenses. Three of these claimed status as a
small or very small entity and won 311 licenses.
31. 220 MHz Radio Service--Phase I Licensees. The 220 MHz service
has both Phase I and Phase II licenses. Phase I licensing was conducted
by lotteries in 1992 and 1993. There are approximately 1,515 such non-
nationwide licensees and four nationwide licensees currently authorized
to operate in the 220 MHz band. The Commission has not developed a
small business size standard for small entities specifically applicable
to such incumbent 220 MHz Phase I licensees. To estimate the number of
such licensees that are small businesses, the Commission applies the
small business size standard under the SBA rules applicable to
``Cellular and Other Wireless Telecommunications'' companies. This
category provides that a small business is a wireless company employing
no more than 1,500 persons. For the census category Cellular and Other
Wireless Telecommunications, Census Bureau data for 1997 show that
there were 977 firms in this category, total, that operated for the
entire year. Of this total, 965 firms had employment of 999 or fewer
employees, and an additional 12 firms had employment of 1,000 employees
or more. Thus, under this second category and size standard, the
majority of firms can, again, be considered small. Assuming this
general ratio continues in the context of Phase I 220 MHz licensees,
the Commission estimates that nearly all such licensees are small
businesses under the SBA's small business size standard. In addition,
limited preliminary census data for 2002 indicate that the total number
of cellular and other wireless telecommunications carriers increased
approximately 321 percent from 1997 to 2002.
32. 220 MHz Radio Service--Phase II Licensees. The 220 MHz service
has both Phase I and Phase II licenses. The Phase II 220 MHz service is
a new service and is subject to spectrum auctions. In the 220 MHz Third
Report and Order (62 FR 16004, Apr. 3, 1997), the Commission adopted a
small business size standard for ``small'' and ``very small''
businesses for purposes of determining their eligibility for special
provisions such as bidding credits and installment payments. This small
business size standard indicates that a ``small business'' is an entity
that, together with its affiliates and controlling principals, has
average gross revenues not exceeding $15 million for the preceding
three years. A ``very small business'' is an entity that, together with
its affiliates and controlling principals, has average gross revenues
that do not exceed $3 million for the preceding three years. The SBA
has approved these small business size standards. Auctions of Phase II
licenses commenced on September 15, 1998, and closed on October 22,
1998. In the first auction, 908 licenses were auctioned in three
different-sized geographic areas: three nationwide licenses, 30
Regional Economic Area Group (EAG) Licenses, and 875 Economic Area (EA)
Licenses. Of the 908 licenses auctioned, 693 were sold. Thirty-nine
small businesses won licenses in the first 220 MHz auction. The second
auction included 225 licenses: 216 EA licenses and 9 EAG licenses.
Fourteen companies claiming small business status won 158 licenses.
33. 800 MHz and 900 MHz Specialized Mobile Radio Licenses. The
Commission awards ``small entity'' and ``very small entity'' bidding
credits in auctions for Specialized Mobile Radio (SMR) geographic area
licenses in the 800 MHz and 900 MHz bands to firms that had revenues of
no more than $15 million in each of the three previous calendar years,
or that had revenues of no more than $3 million in each of the previous
calendar years, respectively. These bidding credits apply to SMR
providers in the 800 MHz and 900 MHz bands that either hold geographic
area licenses or have obtained extended implementation authorizations.
The Commission does not know how many firms provide 800 MHz or 900 MHz
geographic area SMR service pursuant to extended implementation
authorizations, nor how many of these providers have annual revenues of
no more than $15 million. One firm has over $15 million in revenues.
The Commission assumes, for purposes here, that all of the remaining
existing extended implementation authorizations are held by small
entities, as that term is defined by the SBA. The Commission has held
auctions for geographic area licenses in the 800 MHz and 900 MHz SMR
bands. There were 60 winning bidders that qualified as small or very
small entities in the 900 MHz SMR auctions. Of the 1,020 licenses won
in the 900 MHz auction, bidders qualifying as small or very small
entities won 263 licenses. In the 800 MHz auction, 38 of the 524
licenses won were won by small and very small entities.
34. 700 MHz Guard Band Licensees. In the 700 MHz Guard Band Order,
the Commission adopted a small business size standard for ``small
businesses'' and ``very small businesses'' for purposes of determining
their eligibility for special provisions such as bidding credits and
installment payments. A ``small business'' as an entity that, together
with its affiliates and controlling
[[Page 9473]]
principals, has average gross revenues not exceeding $15 million for
the preceding three years. Additionally, a ``very small business'' is
an entity that, together with its affiliates and controlling
principals, has average gross revenues that are not more than $3
million for the preceding three years. An auction of 52 Major Economic
Area (MEA) licenses commenced on September 6, 2000, and closed on
September 21, 2000. Of the 104 licenses auctioned, 96 licenses were
sold to nine bidders. Five of these bidders were small businesses that
won a total of 26 licenses. A second auction of 700 MHz Guard Band
licenses commenced on February 13, 2001 and closed on February 21,
2001. All eight of the licenses auctioned were sold to three bidders.
One of these bidders was a small business that won a total of two
licenses.
35. Rural Radiotelephone Service. The Commission has not adopted a
size standard for small businesses specific to the Rural Radiotelephone
Service. A significant subset of the Rural Radiotelephone Service is
the Basic Exchange Telephone Radio System (BETRS). The Commission uses
the SBA's small business size standard applicable to ``Cellular and
Other Wireless Telecommunications,'' i.e., an entity employing no more
than 1,500 persons. There are approximately 1,000 licensees in the
Rural Radiotelephone Service, and the Commission estimates that there
are 1,000 or fewer small entity licensees in the Rural Radiotelephone
Service that may be affected by the rules and policies adopted herein.
36. Air-Ground Radiotelephone Service. The Commission has not
adopted a small business size standard specific to the Air-Ground
Radiotelephone Service. The Commission will use SBA's small business
size standard applicable to ``Cellular and Other Wireless
Telecommunications,'' i.e., an entity employing no more than 1,500
persons. There are approximately 100 licensees in the Air-Ground
Radiotelephone Service, and the Commission estimates that almost all of
them qualify as small under the SBA small business size standard.
37. Aviation and Marine Radio Services. Small businesses in the
aviation and marine radio services use a very high frequency (VHF)
marine or aircraft radio and, as appropriate, an emergency position-
indicating radio beacon (and/or radar) or an emergency locator
transmitter. The Commission has not developed a small business size
standard specifically applicable to these small businesses. For
purposes of this analysis, the Commission uses the SBA small business
size standard for the category ``Cellular and Other
Telecommunications,'' which is 1,500 or fewer employees. Most
applicants for recreational licenses are individuals. Approximately
581,000 ship station licensees and 131,000 aircraft station licensees
operate domestically and are not subject to the radio carriage
requirements of any statute or treaty. For purposes of the Commission's
evaluations in this analysis, the Commission estimates that there are
up to approximately 712,000 licensees that are small businesses (or
individuals) under the SBA standard. In addition, between December 3,
1998 and December 14, 1998, the Commission held an auction of 42 VHF
Public Coast licenses in the 157.1875-157.4500 MHz (ship transmit) and
161.775-162.0125 MHz (coast transmit) bands. For purposes of the
auction, the Commission defined a ``small'' business as an entity that,
together with controlling interests and affiliates, had average gross
revenues for the preceding three years not to exceed $15 million
dollars. In addition, a ``very small'' business is one that, together
with controlling interests and affiliates, had average gross revenues
for the preceding three years not to exceed $3 million dollars. There
are approximately 10,672 licensees in the Marine Coast Service, and the
Commission estimates that almost all of them qualify as ``small''
businesses under the above special small business size standards.
38. Offshore Radiotelephone Service. This service operates on
several UHF television broadcast channels that are not used for
television broadcasting in the coastal areas of states bordering the
Gulf of Mexico. There are presently approximately 55 licensees in this
service. The Commission is unable to estimate at this time the number
of licensees that would qualify as small under the SBA's small business
size standard for ``Cellular and Other Wireless Telecommunications''
services. Under that SBA small business size standard, a business is
small if it has 1,500 or fewer employees.
39. 39 GHz Service. The Commission created a special small business
size standard for 39 GHz licenses--an entity that has average gross
revenues of $40 million or less in the three previous calendar years.
An additional size standard for ``very small business'' is: an entity
that, together with affiliates, has average gross revenues of not more
than $15 million for the preceding three calendar years. The SBA has
approved these small business size standards. The auction of the 2,173
39 GHz licenses began on April 12, 2000 and closed on May 8, 2000. The
18 bidders who claimed small business status won 849 licenses.
Consequently, the Commission estimates that 18 or fewer 39 GHz
licensees are small entities that may be affected by the rules and
polices adopted herein.
40. Wireless Cable Systems. Wireless cable systems use 2 GHz band
frequencies of the Broadband Radio Service (``BRS''), formerly
Multipoint Distribution Service (``MDS''), and the Educational
Broadband Service (``EBS''), formerly Instructional Television Fixed
Service (``ITFS''), to transmit video programming and provide broadband
services to residential subscribers. These services were originally
designed for the delivery of multichannel video programming, similar to
that of traditional cable systems, but over the past several years
licensees have focused their operations instead on providing two-way
high-speed Internet access services. The Commission estimates that the
number of wireless cable subscribers is approximately 100,000, as of
March 2005. Local Multipoint Distribution Service (``LMDS'') is a fixed
broadband point-to-multipoint microwave service that provides for two-
way video telecommunications. As described below, the SBA small
business size standard for the broad census category of Cable and Other
Program Distribution, which consists of such entities generating $13.5
million or less in annual receipts, appears applicable to MDS, ITFS and
LMDS. Other standards also apply, as described.
41. The Commission has defined small MDS (now BRS) and LMDS
entities in the context of Commission license auctions. In the 1996 MDS
auction, the Commission defined a small business as an entity that had
annual average gross revenues of less than $40 million in the previous
three calendar years. This definition of a small entity in the context
of MDS auctions has been approved by the SBA. In the MDS auction, 67
bidders won 493 licenses. Of the 67 auction winners, 61 claimed status
as a small business. At this time, the Commission estimates that of the
61 small business MDS auction winners, 48 remain small business
licensees. In addition to the 48 small businesses that hold BTA
authorizations, there are approximately 392 incumbent MDS licensees
that have gross revenues that are not more than $40 million and are
thus considered small entities. MDS licensees and wireless cable
operators that did not receive their licenses as a result of the MDS
auction fall under the SBA small
[[Page 9474]]
business size standard for Cable and Other Program Distribution.
Information available to the Commission indicates that there are
approximately 850 of these licensees and operators that do not generate
revenue in excess of $13.5 million annually. Therefore, the Commission
estimates that there are approximately 850 small entity MDS (or BRS)
providers, as defined by the SBA and the Commission's auction rules.
42. Educational institutions are included in this analysis as small
entities; however, the Commission has not created a specific small
business size standard for ITFS (now EBS). The Commission estimates
that there are currently 2,032 ITFS (or EBS) licensees, and all but 100
of the licenses are held by educational institutions. Thus, the
Commission estimates that at least 1,932 ITFS licensees are small
entities.
43. In the 1998 and 1999 LMDS auctions, the Commission defined a
small business as an entity that has annual average gross revenues of
less than $40 million in the previous three calendar years. Moreover,
the Commission added an additional classification for a ``very small
business,'' which was defined as an entity that had annual average
gross revenues of less than $15 million in the previous three calendar
years. These definitions of ``small business'' and ``very small
business'' in the context of the LMDS auctions have been approved by
the SBA. In the first LMDS auction, 104 bidders won 864 licenses. Of
the 104 auction winners, 93 claimed status as small or very small
businesses. In the LMDS re-auction, 40 bidders won 161 licenses. Based
on this information, the Commission believes that the number of small
LMDS licenses will include the 93 winning bidders in the first auction
and the 40 winning bidders in the re-auction, for a total of 133 small
entity LMDS providers as defined by the SBA and the Commission's
auction rules.
44. Local Multipoint Distribution Service. Local Multipoint
Distribution Service (LMDS) is a fixed broadband point-to-multipoint
microwave service that provides for two-way video telecommunications.
The auction of the 1,030 LMDS licenses began on February 18, 1998 and
closed on March 25, 1998. The Commission established a small business
size standard for LMDS licensees as an entity that has average gross
revenues of less than $40 million in the three previous calendar years.
An additional small business size standard for ``very small business''
was added as an entity that, together with its affiliates, has average
gross revenues of not more than $15 million for the preceding three
calendar years. The SBA has approved these small business size
standards in the context of LMDS auctions. There were 93 winning
bidders that qualified as small entities in the LMDS auctions. A total
of 93 small and very small business bidders won approximately 277 A
Block licenses and 387 B Block licenses. On March 27, 1999, the
Commission re-auctioned 161 licenses; there were 40 winning bidders.
Based on this information, the Commission concludes that the number of
small LMDS licenses consists of the 93 winning bidders in the first
auction and the 40 winning bidders in the re-auction, for a total of
133 small entity LMDS providers.
45. 218-219 MHz Service. The first auction of 218-219 MHz spectrum
resulted in 170 entities winning licenses for 594 Metropolitan
Statistical Area (MSA) licenses. Of the 594 licenses, 557 were won by
entities qualifying as a small business. For that auction, the small
business size standard was an entity that, together with its
affiliates, has no more than a $6 million net worth and, after federal
income taxes (excluding any carry over losses), has no more than $2
million in annual profits each year for the previous two years. In the
218-219 MHz Report and Order and Memorandum Opinion and Order (64 FR
59656, Nov. 3, 2999), the Commission established a small business size
standard for a ``small business'' as an entity that, together with its
affiliates and persons or entities that hold interests in such an
entity and their affiliates, has average annual gross revenues not to
exceed $15 million for the preceding three years. A ``very small
business'' is defined as an entity that, together with its affiliates
and persons or entities that hold interests in such an entity and its
affiliates, has average annual gross revenues not to exceed $3 million
for the preceding three years. The Commission cannot estimate, however,
the number of licenses that will be won by entities qualifying as small
or very small businesses under the Commission's rules in future
auctions of 218-219 MHz spectrum.
46. 24 GHz--Incumbent Licensees. This analysis may affect incumbent
licensees who were relocated to the 24 GHz band from the 18 GHz band
and applicants who wish to provide services in the 24 GHz band. The
applicable SBA small business size standard is that of ``Cellular and
Other Wireless Telecommunications'' companies. This category provides
that such a company is small if it employs no more than 1,500 persons.
According to Census Bureau data for 1997, there were 977 firms in this
category, total, that operated for the entire year. Of this total, 965
firms had employment of 999 or fewer employees, and an additional 12
firms had employment of 1,000 employees or more. Thus, under this size
standard, the great majority of firms can be considered small. These
broader census data notwithstanding, the Commission believes that there
are only two licensees in the 24 GHz band that were relocated from the
18 GHz band, Teligent and TRW, Inc. It is the Commission's
understanding that Teligent and its related companies have less than
1,500 employees, though this may change in the future. TRW is not a
small entity. Thus, only one incumbent licensee in the 24 GHz band is a
small business entity.
47. 24 GHz--Future Licensees. With respect to new applicants in the
24 GHz band, the small business size standard for ``small business'' is
an entity that, together with controlling interests and affiliates, has
average annual gross revenues for the three preceding years not in
excess of $15 million. ``Very small business'' in the 24 GHz band is an
entity that, together with controlling interests and affiliates, has
average gross revenues not exceeding $3 million for the preceding three
years. The SBA has approved these small business size standards. These
size standards will apply to the future auction, if held.
2. Cable and OVS Operators
48. Cable Television Distribution Services. Since 2007, these
services have been defined within the broad economic census category of
Wired Telecommunications Carriers; that category is defined as follows:
``This industry comprises establishments primarily engaged in operating
and/or providing access to transmission facilities and infrastructure
that they own and/or lease for the transmission of voice, data, text,
sound, and video using wired telecommunications networks. Transmission
facilities may be based on a single technology or a combination of
technologies.'' The SBA has developed a small business size standard
for this category, which is: all such firms having 1,500 or fewer
employees. To gauge small business prevalence for these cable services
the Commission must, however, use current census data that are based on
the previous category of Cable and Other Program Distribution and its
associated size standard; that size standard was: All such firms having
$13.5 million or less in annual receipts. According to Census Bureau
data for 2002, there were a total of 1,191 firms in this previous
category that operated for the entire year. Of this total, 1,087 firms
had annual receipts of under $10 million, and 43 firms had receipts of
[[Page 9475]]
$10 million or more but less than $25 million. Thus, the majority of
these firms can be considered small.
49. Cable Companies and Systems. The Commission has also developed
its own small business size standards, for the purpose of cable rate
regulation. Under the Commission's rules, a ``small cable company'' is
one serving 400,000 or fewer subscribers, nationwide. Industry data
indicate that, of 1,076 cable operators nationwide, all but eleven are
small under this size standard. In addition, under the Commission's
rules, a ``small system'' is a cable system serving 15,000 or fewer
subscribers. Industry data indicate that, of 7,208 systems nationwide,
6,139 systems have under 10,000 subscribers, and an additional 379
systems have 10,000-19,999 subscribers. Thus, under this second size
standard, most cable systems are small.
50. Cable System Operators. The Communications Act of 1934, as
amended, also contains a size standard for small cable system
operators, which is ``a cable operator that, directly or through an
affiliate, serves in the aggregate fewer than 1 percent of all
subscribers in the United States and is not affiliated with any entity
or entities whose gross annual revenues in the aggregate exceed
$250,000,000.'' The Commission has determined that an operator serving
fewer than 677,000 subscribers shall be deemed a small operator, if its
annual revenues, when combined with the total annual revenues of all
its affiliates, do not exceed $250 million in the aggregate. Industry
data indicate that, of 1,076 cable operators nationwide, all but ten
are small under this size standard. The Commission notes that the
Commission neither requests nor collects information on whether cable
system operators are affiliated with entities whose gross annual
revenues exceed $250 million, and therefore the Commission is unable to
estimate more accurately the number of cable system operators that
would qualify as small under this size standard.
51. Open Video Systems (OVS). In 1996, Congress established the
open video system (OVS) framework, one of four statutorily recognized
options for the provision of video programming services by local
exchange carriers (LECs). The OVS framework provides opportunities for
the distribution of video programming other than through cable systems.
Because OVS operators provide subscription services, OVS falls within
the SBA small business size standard of Cable and Other Program
Distribution Services, which consists of such entities having $13.5
million or less in annual receipts. The Commission has certified 25 OVS
operators, with some now providing service. Broadband service providers
(BSPs) are currently the only significant holders of OVS certifications
or local OVS franchises. As of June, 2005, BSPs served approximately
1.4 million subscribers, representing 1.5 percent of all MVPD
households. Affiliates of Residential Communications Network, Inc.
(RCN), which serves about 371,000 subscribers as of June, 2005, is
currently the largest BSP and 14th largest MVPD. RCN received approval
to operate OVS systems in New York City, Boston, Washington, DC and
other areas. The Commission does not have financial information
regarding the entities authorized to provide OVS, some of which may not
yet be operational. The Commission thus believes that at least some of
the OVS operators may qualify as small entities.
3. Internet Service Providers
52. Internet Service Providers. The SBA has developed a small
business size standard for Internet Service Providers (ISPs). ISPs
``provide clients access to the Internet and generally provide related
services such as web hosting, web page designing, and hardware or
software consulting related to Internet connectivity.'' Under the SBA
size standard, such a business is small if it has average annual
receipts of $23 million or less. According to Census Bureau data for
2002, there were 2,529 firms in this category that operated for the
entire year. Of these, 2,437 firms had annual receipts of under $10
million, and an additional 47 firms had receipts of between $10 million
and $24, 999,999. Consequently, the Commission estimates that the
majority of these firms are small entities that may be affected by the
Commission's action.
4. Other Internet-Related Entities
53. Web Search Portals. The Commission's action pertains to VoIP
services, which could be provided by entities that provide other
services such as email, online gaming, web browsing, video
conferencing, instant messaging, and other, similar IP-enabled
services. The Commission has not adopted a size standard for entities
that create or provide these types of services or applications.
However, the Census Bureau has identified firms that ``operate web
sites that use a search engine to generate and maintain extensive
databases of Internet addresses and content in an easily searchable
format. Web search portals often provide additional Internet services,
such as e-mail, connections to other web sites, auctions, news, and
other limited content, and serve as a home base for Internet users.''
The SBA has developed a small business size standard for this category;
that size standard is $6.5 million or less in average annual receipts.
According to Census Bureau data for 2002, there were 342 firms in this
category that operated for the entire year. Of these, 303 had annual
receipts of under $5 million, and an additional 15 firms had receipts
of between $5 million and $9,999,999. Consequently, the Commission
estimates that the majority of these firms are small entities that may
be affected by the Commission's action.
54. Data Processing, Hosting, and Related Services. Entities in
this category ``primarily * * * provid[e] infrastructure for hosting or
data processing services.'' The SBA has developed a small business size
standard for this category; that size standard is $23 million or less
in average annual receipts. According to Census Bureau data for 2002,
there were 6,877 firms in this category that operated for the entire
year. Of these, 6,418 had annual receipts of under $10 million, and an
additional 251 firms had receipts of between $10 million and
$24,999,999. Consequently, the Commission estimates that the majority
of these firms are small entities that may be affected by the
Commission's action.
55. All Other Information Services. ``This industry comprises
establishments primarily engaged in providing other information
services (except new syndicates and libraries and archives).'' The
Commission's action pertains to VoIP services, which could be provided
by entities that provide other services such as email, online gaming,
web browsing, video conferencing, instant messaging, and other, similar
IP-enabled services. The SBA has developed a small business size
standard for this category; that size standard is $6.5 million or less
in average annual receipts. According to Census Bureau data for 2002,
there were 155 firms in this category that operated for the entire
year. Of these, 138 had annual receipts of under $5 million, and an
additional four firms had receipts of between $5 million and
$9,999,999. Consequently, the Commission estimates that the majority of
these firms are small entities that may be affected by the Commission's
action.
56. Internet Publishing and Broadcasting. ``This industry comprises
establishments engaged in publishing and/or broadcasting content on the
Internet exclusively. These establishments do not provide traditional
(non-Internet) versions of the
[[Page 9476]]
content that they publish or broadcast.'' The SBA has developed a small
business size standard for this census category; that size standard is
500 or fewer employees. According to Census Bureau data for 2002, there
were 1,362 firms in this category that operated for the entire year. Of
these, 1,351 had employment of 499 or fewer employees, and six firms
had employment of between 500 and 999. Consequently, the Commission
estimates that the majority of these firms small entities that may be
affected by the Commission's action.
57. Software Publishers. These companies may design, develop or
publish software and may provide other support services to software
purchasers, such as providing documentation or assisting in
installation. The companies may also design software to meet the needs
of specific users. The SBA has developed a small business size standard
of $23 million or less in average annual receipts for all of the
following pertinent categories: Software Publishers, Custom Computer
Programming Services, and Other Computer Related Services. For Software
Publishers, Census Bureau data for 2002 indicate that there were 6,155
firms in the category that operated for the entire year. Of these,
7,633 had annual receipts of under $10 million, and an additional 403
firms had receipts of between $10 million and $24, 999,999. For
providers of Custom Computer Programming Services, the Census Bureau
data indicate that there were 32,269 firms that operated for the entire
year. Of these, 31,416 had annual receipts of under $10 million, and an
additional 565 firms had receipts of between $10 million and
$24,999,999. For providers of Other Computer Related Services, the
Census Bureau data indicate that there were 6,357 firms that operated
for the entire year. Of these, 6,187 had annual receipts of under $10
million, and an additional 101 firms had receipts of between $10
million and $24,999,999. Consequently, the Commission estimates that
the majority of the firms in each of these three categories are small
entities that may be affected by the Commission's action.
5. Equipment Manufacturers
58. SBA small business size standards are given in terms of
``firms.'' Census Bureau data concerning computer manufacturers, on the
other hand, are given in terms of ``establishments.'' The Commission
notes that the number of ``establishments'' is a less helpful indicator
of small business prevalence in this context than would be the number
of ``firms'' or ``companies,'' because the latter take into account the
concept of common ownership or control. Any single physical location
for an entity is an establishment, even though that location may be
owned by a different establishment. Thus, the census numbers provided
below may reflect inflated numbers of businesses in the given category,
including the numbers of small businesses.
59. Electronic Computer Manufacturing. This category ``comprises
establishments primarily engaged in manufacturing and/or assembling
electronic computers, such as mainframes, personal computers,
workstations, laptops, and computer servers.'' The SBA has developed a
small business size standard for this category of manufacturing; that
size standard is 1,000 or fewer employees. According to Census Bureau
data, there were 485 establishments in this category that operated with
payroll during 2002. Of these, 476 had employment of under 1,000, and
an additional four establishments had employment of 1,000 to 2,499.
Consequently, the Commission estimates that the majority of these
establishments are small entities.
60. Computer Storage Device Manufacturing. These establishments
manufacture ``computer storage devices that allow the storage and
retrieval of data from a phase change, magnetic, optical, or magnetic/
optical media.'' The SBA has developed a small business size standard
for this category of manufacturing; that size standard is 1,000 or
fewer employees. According to Census Bureau data, there were 170
establishments in this category that operated with payroll during 2002.
Of these, 164 had employment of under 500, and five establishments had
employment of 500 to 999. Consequently, the Commission estimates that
the majority of these establishments are small entities
61. Computer Terminal Manufacturing. ``Computer terminals are
input/output devices that connect with a central computer for
processing.'' The SBA has developed a small business size standard for
this category of manufacturing; that size standard is 1,000 or fewer
employees. According to Census Bureau data, there were 71
establishments in this category that operated with payroll during 2002,
and all of the establishments had employment of under 1,000.
Consequently, the Commission estimates that all of these establishments
are small entities.
62. Other Computer Peripheral Equipment Manufacturing. Examples of
peripheral equipment in this category include keyboards, mouse devices,
monitors, and scanners. The SBA has developed a small business size
standard for this category of manufacturing; that size standard is
1,000 or fewer employees. According to Census Bureau data, there were
860 establishments in this category that operated with payroll during
2002. Of these, 851 had employment of under 1,000, and an additional
five establishments had employment of 1,000 to 2,499. Consequently, the
Commission estimates that the majority of these establishments are
small entities.
63. Audio and Video Equipment Manufacturing. These establishments
manufacture ``electronic audio and video equipment for home
entertainment, motor vehicle, public address and musical instrument
amplifications.'' The SBA has developed a small business size standard
for this category of manufacturing; that size standard is 750 or fewer
employees. According to Census Bureau data, there were 571
establishments in this category that operated with payroll during 2002.
Of these, 560 had employment of under 500, and ten establishments had
employment of 500 to 999. Consequently, the Commission estimates that
the majority of these establishments are small entities.
64. Electron Tube Manufacturing. These establishments are
``primarily engaged in manufacturing electron tubes and parts (except
glass blanks).'' The SBA has developed a small business size standard
for this category of manufacturing; that size standard is 750 or fewer
employees. According to Census Bureau data, there were 102
establishments in this category that operated with payroll during 2002.
Of these, 97 had employment of under 500, and one establishment had
employment of 500 to 999. Consequently, the Commission estimates that
the majority of these establishments are small entities.
65. Bare Printed Circuit Board Manufacturing. These establishments
are ``primarily engaged in manufacturing bare (i.e., rigid or flexible)
printed circuit boards without mounted electronic components.'' The SBA
has developed a small business size standard for this category of
manufacturing; that size standard is 500 or fewer employees. According
to Census Bureau data, there were 936 establishments in this category
that operated with payroll during 2002. Of these, 922 had employment of
under 500, and 12 establishments had employment of 500 to 999.
[[Page 9477]]
Consequently, the Commission estimates that the majority of these
establishments are small entities.
66. Semiconductor and Related Device Manufacturing. Examples of
manufactured devices in this category include ``integrated circuits,
memory chips, microprocessors, diodes, transistors, solar cells and
other optoelectronic devices.'' The SBA has developed a small business
size standard for this category of manufacturing; that size standard is
500 or fewer employees. According to Census Bureau data, there were
1,032 establishments in this category that operated with payroll during
2002. Of these, 950 had employment of under 500, and 42 establishments
had employment of 500 to 999. Consequently, the Commission estimates
that the majority of these establishments are small entities.
67. Electronic Capacitor Manufacturing. These establishments
manufacture ``electronic fixed and variable capacitors and
condensers.'' The SBA has developed a small business size standard for
this category of manufacturing; that size standard is 500 or fewer
employees. According to Census Bureau data, there were 104
establishments in this category that operated with payroll during 2002.
Of these, 101 had employment of under 500, and two establishments had
employment of 500 to 999. Consequently, the Commission estimates that
the majority of these establishments are small entities.
68. Electronic Resistor Manufacturing. These establishments
manufacture ``electronic resistors, such as fixed and variable
resistors, resistor networks, thermistors, and varistors.'' The SBA has
developed a small business size standard for this category of
manufacturing; that size standard is 500 or fewer employees. According
to Census Bureau data, there were 79 establishments in this category
that operated with payroll during 2002. All of these establishments had
employment of under 500. Consequently, the Commission estimates that
all of these establishments are small entities.
69. Electronic Coil, Transformer, and Other Inductor Manufacturing.
These establishments manufacture ``electronic inductors, such as coils
and transformers.'' The SBA has developed a small business size
standard for this category of manufacturing; that size standard is 500
or fewer employees. According to Census Bureau data, there were 365
establishments in this category that operated with payroll during 2002.
All of these establishments had employment of under 500. Consequently,
the Commission estimates that all of these establishments are small
entities.
70. Electronic Connector Manufacturing. These establishments
manufacture ``electronic connectors, such as coaxial, cylindrical, rack
and panel, pin and sleeve, printed circuit and fiber optic.'' The SBA
has developed a small business size standard for this category of
manufacturing; that size standard is 500 or fewer employees. According
to Census Bureau data, there were 321 establishments in this category
that operated with payroll during 2002. Of these, 315 had employment of
under 500, and three establishments had employment of 500 to 999.
Consequently, the Commission estimates that the majority of these
establishments are small entities.
71. Printed Circuit Assembly (Electronic Assembly) Manufacturing.
These are establishments ``primarily engaged in loading components onto
printed circuit boards or who manufacture and ship loaded printed
circuit boards.'' The SBA has developed a small business size standard
for this category of manufacturing; that size standard is 500 or fewer
employees. According to Census Bureau data, there were 868
establishments in this category that operated with payroll during 2002.
Of these, 839 had employment of under 500, and 18 establishments had
employment of 500 to 999. Consequently, the Commission estimates that
the majority of these establishments are small entities.
72. Other Electronic Component Manufacturing. The SBA has developed
a small business size standard for this category of manufacturing; that
size standard is 500 or fewer employees. According to Census Bureau
data, there were 1,627 establishments in this category that operated
with payroll during 2002. Of these, 1,616 had employment of under 500,
and eight establishments had employment of 500 to 999. Consequently,
the Commission estimates that the majority of these establishments are
small entities.
73. Fiber Optic Cable Manufacturing. These establishments
manufacture ``insulated fiber-optic cable from purchased fiber-optic
strand.'' The SBA has developed a small business size standard for this
category of manufacturing; that size standard is 1,000 or fewer
employees. According to Census Bureau data, there were 96
establishments in this category that operated with payroll during 2002.
Of these, 95 had employment of under 1,000, and one establishment had
employment of 1,000 to 2,499. Consequently, the Commission estimates
that the majority or all of these establishments are small entities.
74. Other Communication and Energy Wire Manufacturing. These
establishments manufacture ``insulated wire and cable of nonferrous
metals from purchased wire.'' The SBA has developed a small business
size standard for this category of manufacturing; that size standard is
1,000 or fewer employees. According to Census Bureau data, there were
356 establishments in this category that operated with payroll during
2002. Of these, 353 had employment of under 1,000, and three
establishments had employment of 1,000 to 2,499. Consequently, the
Commission estimates that the majority or all of these establishments
are small entities.
D. Description of Projected Reporting, Recordkeeping and Other
Compliance Requirements
75. In this Report and Order, the Commission is requiring
telecommunications carriers and providers of interconnected VoIP
service to collect certain information and take other actions to comply
with LNP and other numbering administration obligations. Specifically,
the Commission is requiring both traditional telecommunications
carriers as well as interconnected VoIP providers and their numbering
partners to facilitate a customer's porting request to or from an
interconnected VoIP provider. This means, for example, that
interconnected VoIP providers have an affirmative legal obligation to
take all steps necessary to initiate or allow a port-in or port-out
itself or through its numbering partner on behalf of the interconnected
VoIP customer, subject to a valid port request, without unreasonable
delay or unreasonable procedures that have the effect of delaying or
denying porting of the number. The Commission also prohibits
interconnected VoIP providers and their numbering partners from
entering into agreements that would prohibit or unreasonably delay an
interconnected VoIP service end user from porting between
interconnected VoIP providers, or to or from a wireline carrier or a
covered CMRS provider. Further, the Commission expects interconnected
VoIP providers to fully inform their customers about limitations on
porting between providers, particularly limitations that result from
the portable nature of, and use of non-geographic numbers by, certain
interconnected VoIP services.
[[Page 9478]]
76. The Commission is also requiring interconnected VoIP providers
to contribute to meet shared numbering administration and LNP costs.
The reporting requirements for determining interconnected VoIP
providers' contribution to the shared cost of numbering administration
and LNP require interconnected VoIP providers to file an annual FCC
Form 499-A. The Commission requires interconnected VoIP providers to
include in their annual FCC Form 499-A filing historical revenue
information for the relevant year, including all information necessary
to allocate revenues across the seven LNPA regions. To alleviate the
burdens of attributing costs among the seven LNPA regions, the
Commission allows these providers to use a proxy based on the
percentage of subscribers a provider serves in a particular region for
reaching an estimate for allocating their end-user revenues to the
appropriate regional LNPA.
E. Steps Taken to Minimize Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
77. The RFA requires an agency to describe any significant
alternatives that it has considered in reaching its proposed approach,
which may include (among others) the following four alternatives: (1)
The establishment of differing compliance or reporting requirements or
timetables that take into account the resources available to small
entities; (2) the clarification, consolidation, or simplification of
compliance or reporting requirements under the rule for small entities;
(3) the use of performance, rather than design, standards; and (4) an
exemption from coverage of the rule, or any part thereof, for small
entities.
78. The IP-Enabled Services Notice sought comment on whether
numbering obligations should be extended to IP-enabled services, and
invited comment on the effect various proposals would have on small
entities, as well as the effect alternative rules would have on these
entities. However, the Commission must assess the interests of small
businesses in light of the overriding public interest in ensuring that
all consumers benefit from local number portability. In the Report and
Order, the Commission found that allowing customers of interconnected
VoIP services to receive the benefits of LNP is fundamentally important
for the protection of consumers and benefits not only customers, but
the interconnected VoIP providers themselves. Specifically, the
Commission found that the ability of end users to retain their NANP
telephone numbers when changing service providers gives customers
flexibility in the quality, price, and variety of services they can
choose to purchase. Allowing customers to respond to price and service
changes without changing their telephone numbers will enhance
competition, a fundamental goal of section 251 of the Act. In addition,
the Commission found that failure to extend LNP obligations to
interconnected VoIP providers and their numbering partners would thwart
the effective and efficient administration of the Commission's number
administration responsibilities under section 251 of the Act.
79. The Commission concluded that because interconnected VoIP
providers, including small businesses, benefit from LNP, all
interconnected VoIP providers, including small businesses, should
contribute to meet shared LNP costs. However, to alleviate costs
involved in the attribution systems for all of their end-user services,
when filing FCC Form 499-A, the Commission allowed interconnected VoIP
providers, including small businesses, to use a proxy based on the
percentage of subscribers a provider serves in a particular region for
allocating their end-user revenues to the appropriate regional LNPA.
80. Report to Congress: The Commission will send a copy of the
Order, including this FRFA, in a report to be sent to Congress and the
Government Accountability Office pursuant to the Congressional Review
Act. A copy of the Order and FRFA (or summaries thereof) will also be
published in the Federal Register.
Final Regulatory Flexibility Analysis, CC Docket No. 95-116 (Intermodal
Local Number Portability)
1. As required by the Regulatory Flexibility Act, as amended (RFA),
an Initial Regulatory Flexibility Analysis (IRFA) was published for the
Intermodal Number Portability Order (70 FR 41655, July 20, 2005). The
Commission sought written public comment on the IRFA. The Commission
received comments specifically directed toward the IRFA, which are
discussed below. This Final Regulatory Flexibility Analysis (FRFA)
conforms to the RFA.
A. Need for, and Objectives of, the Rules
2. Section 251(b) of the Communications Act requires local exchange
carriers to provide number portability, to the extent technically
feasible, in accordance with the requirements prescribed by the
Commission. In the Intermodal Number Portability Order (68 FR 68831,
Dec. 10, 2003), the Commission found that porting from a wireline
carrier to a wireless carrier is required where the requesting wireless
carrier's coverage area overlaps the geographic location in which the
customer's wireline number is provisioned, provided that the porting-in
carrier maintains the number's original rate center designation
following the port. The United States Court of Appeals for the District
of Columbia remanded the Intermodal Number Portability Order to the
Commission to prepare the required FRFA on the impact of the order on
carriers that qualify as small entities under the RFA. After
considering information received from commenters in response to the
IRFA, the Commission concludes that wireline carriers qualifying as
small entities under the RFA will be required to provide wireline-to-
wireless intermodal porting where the requesting wireless carrier's
coverage area overlaps the geographic location in which the customer's
wireline number is provisioned, provided that the porting-in carrier
maintains the number's original rate center designation following the
port.
B. Summary of Significant Issues Raised by Public Comments in Response
to the IRFA
3. In this section, the Commission responds to comments filed in
response to the IRFA. To the extent the Commission received comments
raising general small business concerns during this proceeding, those
comments are discussed throughout the Intermodal Number Portability
Order.
4. As an initial matter, the Commission rejects arguments that
carriers that qualify as ``small entities'' should not have to comply
with the intermodal porting requirements until the Commission addresses
issues pertaining to rating and routing that are pending in the
intercarrier compensation proceeding. The issues that have been raised
in this proceeding with respect to transporting calls to ported numbers
are also before the Commission in the context of all numbers (without
distinguishing between ported or non-ported numbers) in the
intercarrier compensation proceeding. Further, as the Commission found
in the Intermodal Number Portability Order, the issue of transport
costs associated with calls to ported numbers is outside the scope of
this proceeding and not relevant to the application of the LNP
obligations under the Act.
5. The Commission also rejects recommendations that the Commission
[[Page 9479]]
create a partial or blanket exemption for small carriers from the
wireline-to-wireless intermodal porting requirements based on the high
costs of implementation. The Commission finds that small carriers have
not demonstrated such significant costs associated with implementation
of LNP to warrant an exemption. Several small carriers claim that they
may face a variety of costs associated with wireline-to-wireless
intermodal porting, which would be excessive in light of their small
customer bases. However, other commenters point out that the cost
information these carriers present shows a large range of cost
estimates, and in fact, even when the estimates are taken at face
value, they indicate that the cost of wireline-to-wireless intermodal
LNP does not impose a significant economic burden on small entities. In
addition, the Commission is not persuaded based on this record that the
costs of implementing LNP are as large as the commenters suggest, given
the scant support they provide for their estimates and their failure to
demonstrate that all the estimated costs are of the sort that the
Commission would allow to be attributed to the LNP end-user charge. For
example, some commenters cite their estimated costs associated with
transporting calls to ported numbers. However, as discussed above, the
Commission previously declined to consider these as LNP-related costs,
rather than costs of interconnection more generally, and the commenters
here do not demonstrate that the Commission should reverse that
conclusion.
6. Further, in response to small carrier concerns about LNP
implementation costs, the Commission notes that wireline carriers
generally only are required to provide LNP upon receipt of a specific
request for the provision of LNP by another carrier. Thus, many of the
small carriers may not be required to implement LNP immediately because
there is no request to do so. Indeed, as the Commission found in the
First Number Portability Order on Reconsideration (62 FR 18280, Apr.
15, 1997), these rights effectively constitute steps that minimize the
economic impact of LNP on small entities. Further, carriers have the
ability to petition the Commission for a waiver of their obligation to
port numbers to wireless carriers if they can provide substantial,
credible evidence that there are special circumstances that warrant a
departure from existing rules. In addition, under section 251(f)(2), a
LEC with fewer than two percent of the nation's subscriber lines
installed in the aggregate nationwide may petition the appropriate
state commission for suspension or modification of the requirements of
section 251(b). The Commission finds these existing safeguards further
address commenters' concerns regarding the costs on small entities to
implement LNP.
C. Description and Estimate of the Number of Small Entities to Which
the Rules Will Apply
7. The RFA directs agencies to provide a description of and, where
feasible, an estimate of the number of small entities that may be
affected by the rules adopted. The RFA generally defines the term
``small entity'' as having the same meaning as the terms ``small
business,'' ``small organization,'' and ``small governmental
jurisdiction.'' In addition, the term ``small business'' has the same
meaning as the term ``small business concern'' under section 3 of the
Small Business Act. Under the Small Business Act, a ``small business
concern'' is one that: (1) Is independently owned and operated; (2) is
not dominant in its field of operation; and (3) satisfies any
additional criteria established by the Small Business Administration
(SBA).
8. Wired Telecommunications Carriers. The SBA has developed a small
business size standard for wireline firms within the broad economic
census category, ``Wired Telecommunications Carriers.'' Under this
category, the SBA deems a wireline business to be small if it has 1,500
or fewer employees. Census Bureau data for 2002 show that there were
2,432 firms in this category that operated for the entire year. Of this
total, 2,395 firms had employment of 999 or fewer employees, and 37
firms had employment of 1,000 employees or more. Thus, under this
category and associated small business size standard, the majority of
firms can be considered small.
9. Incumbent Local Exchange Carriers. The Commission has included
small incumbent local exchange carriers (LECs) in this RFA analysis.
Neither the Commission nor the SBA has developed a small business size
standard specifically for incumbent local exchange services. The
appropriate size standard under SBA rules is for the category of Wired
Telecommunications Carriers. As noted above, a ``small business'' under
the RFA is one that, inter alia, meets the pertinent small business
size standard (e.g., a telephone communications business having 1,500
or fewer employees), and ``is not dominant in its field of operation.''
The SBA's Office of Advocacy contends that, for RFA purposes, small
incumbent LECs are not dominant in their field of operation because any
such dominance is not ``national'' in scope. The Commission has
therefore included small incumbent LECs in this RFA analysis, although
the Commission emphasizes that this RFA action has no effect on the
Commission's analyses and determinations in other, non-RFA contexts.
According to Commission data, 1,307 carriers have reported that they
are engaged in the provision of incumbent local exchange services. Of
these 1,307 carriers, an estimated 1,019 have 1,500 or fewer employees
and 288 have more than 1,500 employees. Consequently, the Commission
estimates that most providers of incumbent local exchange service are
small entities.
10. Competitive Local Exchange Carriers, Competitive Access
Providers (CAPs), ``Shared-Tenant Service Providers,'' and ``Other
Local Service Providers.'' Neither the Commission nor the SBA has
developed a small business size standard specifically for these service
providers. The appropriate size standard under SBA rules is for the
category Wired Telecommunications Carriers. Under that size standard,
such a business is small if it has 1,500 or fewer employees. According
to Commission data, 859 carriers have reported that they are engaged in
the provision of either competitive access provider services or
competitive LEC services. Of these 859 carriers, an estimated 741 have
1,500 or fewer employees and 118 have more than 1,500 employees. In
addition, 16 carriers have reported that they are ``Shared-Tenant
Service Providers,'' and all 16 are estimated to have 1,500 or fewer
employees. In addition, 44 carriers have reported that they are ``Other
Local Service Providers.'' Of the 44, an estimated 43 have 1,500 or
fewer employees and one has more than 1,500 employees. Consequently,
the Commission estimates that most providers of competitive local
exchange service, competitive access providers, ``Shared-Tenant Service
Providers,'' and ``Other Local Service Providers'' are small entities.
D. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements for Small Entities
11. There are no significant reporting, recordkeeping or other
compliance requirements imposed on small entities by the Intermodal
Number Portability Order.
[[Page 9480]]
E. Steps Taken to Minimize Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
12. The RFA requires an agency to describe any significant
alternatives that it has considered in reaching its approach, which may
include the following four alternatives (among others): (1) The
establishment of differing compliance or reporting requirements or
timetables that take into account the resources available to small
entities; (2) the clarification, consolidation, or simplification of
compliance or reporting requirements under the rule for small entities;
(3) the use of performance, rather than design, standards; and (4) an
exemption from coverage of the rule, or any part thereof, for small
entities.
13. The Commission invited comment on the intermodal porting rules
with respect to their application to small entities in light of the RFA
requirements. In accordance with the requirements of the RFA, the
Commission has considered the potential economic impact of the
intermodal porting rules on small entities and conclude that wireline
carriers qualifying as small entities under the RFA will be required to
provide wireline-to-wireless intermodal porting where the requesting
wireless carrier's coverage area overlaps the geographic location in
which the customer's wireline number is provisioned, provided that the
porting-in carrier maintains the number's original rate center
designation following the port. The Commission finds that this approach
best balances the impact of the costs that may be associated with the
wireline-to-wireless intermodal porting rules for small carriers and
the public interest benefits of those requirements.
14. Specifically, in the Intermodal Number Portability Order, the
Commission considered limiting the scope of intermodal porting based on
the small carrier concern that requiring porting to a wireless carrier
that does not have a physical point of interconnection or numbering
resources in the rate center associated with the ported number would
give wireless carriers an unfair competitive advantage. The Commission
found, however, that these considerations did not justify denying
wireline consumers the benefit of being able to port their numbers to
wireless carriers. In addition, the order noted that each type of
service offers its own advantages and disadvantage and that consumers
would consider these attributes in determining whether or not to port
their numbers. The order also considered the concern expressed by small
carriers that requiring porting beyond wireline rate center boundaries
would lead to increased transport costs. The Commission concluded that
such concerns were outside the scope of the number portability
proceeding and noted that the rating and routing issues raised by the
rural wireline carriers were also implicated in the context of non-
ported numbers and were before the Commission in other proceedings.
15. Further, if there is a particular case where a carrier faces
extraordinary costs, other regulatory avenues for relief are available.
Specifically, a carrier may petition the Commission for additional time
or waiver of the intermodal porting requirements if it can provide
substantial, credible evidence that there are special circumstances
that warrant departure from existing rules. In addition, under section
251(f)(2), a LEC with fewer than two percent of the nation's subscriber
lines installed in the aggregate nationwide may petition the
appropriate state commission for suspension or modification of the
requirements of section 251(b). Although some commenters have
complained about the time and expense associated with the section
251(f)(2) mechanism, several others have indicated that the 251(f)(2)
mechanism has been an effective method of addressing the potential
burdens on small carriers. Further, in response to small carriers'
concerns about LNP implementation costs, the Commission notes that
wireline carriers generally only are required to provide LNP upon
receipt of a specific request for the provision of LNP by another
carrier. Thus, many of the small carriers may not be required to
implement LNP immediately because there is no request to do so. Indeed,
as the Commission found in the First Number Portability Order on
Reconsideration, these rights effectively constitute steps that
minimize the economic impact of LNP on small entities. The Commission
finds these existing safeguards further address commenters' concerns
regarding the costs on small entities to implement LNP.
16. While the Commission recognizes that wireline carriers will
still incur implementation and recurrent costs, the Commission
concludes that the benefits to the public of requiring wireline-to-
wireless intermodal LNP outweigh the economic burden imposed on these
carriers. Creating a partial or blanket exemption from the wireline-to-
wireless intermodal porting requirements for small entities would harm
consumers in small and rural areas across the country by preventing
them from being able to port on a permanent basis. It might also
discourage further growth of competition between wireless and wireline
carriers in smaller markets across the country. The Commission
continues to believe that the intermodal LNP requirements are important
for promoting competition between the wireless and wireline industries
and generating innovative service offerings and lower prices for
consumers. Wireless number porting activity since the advent of porting
has been significant and evidence shows that the implementation of LNP
has, in fact, yielded important benefits for consumers, such as
improved customer retention efforts by carriers. By reinstating,
immediately, the wireline-to-wireless intermodal porting requirement,
this approach ensures that more consumers in small and rural
communities will be able to port and experience the competitive
benefits of LNP.
F. Report to Congress
17. The Commission will send a copy of this FRFA in a report to be
sent to Congress and the Government Accountability Office pursuant to
the Congressional Review Act. A copy of the FRFA (or a summary thereof)
will also be published in the Federal Register.
Final Paperwork Reduction Act of 1995 Analysis
This document does not contain new or modified information
collection(s) subject to the Paperwork Reduction Act of 1995 (PRA),
Public Law 104-13. In addition, therefore, it does not contain any new
or modified ``information collection burden for small business concerns
with fewer than 25 employees,'' pursuant to the Small Business
Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C.
3506(c)(4).
Congressional Review Act
The Commission will send a copy of this Report and Order on Remand
in a report to be sent to Congress and the Government Accountability
Office pursuant to the Congressional Review Act, see 5 U.S.C.
801(a)(1)(A).
Ordering Clauses
29. Accordingly, it is ordered that pursuant to sections 1, 4(i),
4(j), 251, and 303(r) of the Communications Act of 1934, as amended, 47
U.S.C. 151, 154(i)-(j), 251, 303(r), the Report and Order in WC Docket
No. 04-36 and CC Docket Nos. 95-116 and 99-200 is adopted, and that
Part 52 of the
[[Page 9481]]
Commission's Rules, 47 CFR parts 52, is amended as set forth in
Appendix B. The Report and Order shall become effective 30 days after
publication in the Federal Register.
30. It is further ordered that pursuant to section 1, 4(i), 4(j),
251, and 303(r) of the Communications Act of 1934, as amended, 47
U.S.C. 151, 154(i)-(j), 251, 303(r), the Order on Remand in CC Docket
No. 95-116 is adopted. The Order on Remand shall become effective 30
days after publication in the Federal Register.
31. It is further ordered that the Commission's Consumer and
Governmental Affairs Bureau, Reference Information Center, shall send a
copy of this Report and Order, Declaratory Ruling, Order on Remand, and
Notice of Proposed Rulemaking, including the two Final Regulatory
Flexibility Analyses and the Initial Regulatory Flexibility Analysis,
to the Chief Counsel for Advocacy of the Small Business Administration.
List of Subjects in 47 CFR Part 52
Communications common carriers, telecommunications, telephone.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
Final Rules
For the reasons discussed in the preamble, the Federal
Communications Commission amends Part 52 of Title 47 of the Code of
Federal Regulations as follows:
PART 52--NUMBERING
0
1. The authority citation for part 52 is revised to read as follows:
Authority: Secs. 1, 2, 4, 5, 48 Stat. 1066, as amended; 47
U.S.C. 151, 152, 154 and 155 unless otherwise noted. Interpret or
apply secs. 3, 4, 201-05, 207-09, 218, 225-27, 251-52, 271 and 332,
48 Stat. 1070, as amended, 1077; 47 U.S.C. 153, 154, 201-05, 207-09,
218, 225-27, 251-52, 271 and 332 unless otherwise noted.
0
2. Section 52.12(a)(1)(i) introductory text is revised to read as
follows:
Sec. 52.12 North American Numbering Plan Administrator and B&C Agent.
* * * * *
(a)(1) * * *
(i) The NANPA and B&C Agent may not be an affiliate of any
telecommunications service provider(s) as defined in the
Telecommunications Act of 1996, or an affiliate of any interconnected
VoIP provider as that term is defined in Sec. 52.21(h). ``Affiliate''
is a person who controls, is controlled by, or is under the direct or
indirect common control with another person. A person shall be deemed
to control another if such person possesses, directly or indirectly--
* * * * *
0
3. Section 52.16 is amended by adding paragraph (g) to read as follows:
Sec. 52.16 Billing and Collection Agent.
* * * * *
(g) For the purposes of this rule, the term ``carrier(s)'' shall
include interconnected VoIP providers as that term is defined in Sec.
52.21(h).
0
4. Section 52.17 is amended by adding paragraph (c) to read as follows:
Sec. 52.17 Costs of number administration.
* * * * *
(c) For the purposes of this section, the term ``telecommunications
carrier'' or ``carrier'' shall include interconnected VoIP providers as
that term is defined in Sec. 52.21(h).
0
5. Section 52.21 is amended by redesignating paragraphs (h) through (r)
as paragraphs (i) through (s), and by adding new paragraph (h) to read
as follows:
Sec. 52.21 Definitions.
* * * * *
(h) The term ``interconnected VoIP provider'' is an entity that
provides interconnected VoIP service as that term is defined in 47 CFR
9.3.
* * * * *
0
6. Section 52.23 is amended by adding paragraph (h) to read as follows:
Sec. 52.23 Deployment of long-term database methods for number
portability by LECs.
* * * * *
(h)(1) Porting from a wireline carrier to a wireless carrier is
required where the requesting wireless carrier's ``coverage area,'' as
defined in paragraph (h)(2) of this section, overlaps the geographic
location in which the customer's wireline number is provisioned,
provided that the porting-in carrier maintains the number's original
rate center designation following the port.
(2) The wireless ``coverage area'' is defined as the area in which
wireless service can be received from the wireless carrier.
0
7. Section 52.32 is amended by adding paragraph (e) to read as follows:
Sec. 52.32 Allocation of the shared costs of long-term number
portability.
* * * * *
(e) For the purposes of this section, the term ``telecommunications
carrier'' shall include interconnected VoIP providers as that term is
defined in Sec. 52.21(h); and ``telecommunications service'' shall
include ``interconnected VoIP service'' as that term is defined in 47
CFR 9.3.
0
8. Section 52.33(b) is revised to read as follows:
Sec. 52.33 Recovery of carrier-specific costs directly related to
providing long-term number portability.
* * * * *
(b) All interconnected VoIP providers and telecommunications
carriers other than incumbent local exchange carriers may recover their
number portability costs in any manner consistent with applicable state
and federal laws and regulations.
0
9. Section 52.34 is added to read as follows:
Sec. 52.34 Obligations regarding local number porting to and from
interconnected VoIP providers.
(a) An interconnected VoIP provider must facilitate an end-user
customer's valid number portability request, as it is defined in this
subpart, either to or from a telecommunications carrier or another
interconnected VoIP provider. ``Facilitate'' is defined as the
interconnected VoIP providers' affirmative legal obligation to take all
steps necessary to initiate or allow a port-in or port-out itself or
through the telecommunications carriers, if any, that it relies on to
obtain numbering resources, subject to a valid port request, without
unreasonable delay or unreasonable procedures that have the effect of
delaying or denying porting of the NANP-based telephone number.
(b) An interconnected VoIP provider may not enter into any
agreement that would prohibit an end-user customer from porting between
interconnected VoIP providers, or to or from a telecommunications
carrier.
[FR Doc. E8-3130 Filed 2-20-08; 8:45 am]
BILLING CODE 6712-01-P