IV. Comments on Draft Decision
The draft decision of the Administrative Law Judge in this matter was mailed to the parties in accordance with Pub. Util. Code § 311(g)(1) and Rule 77.7 of the Rules of Practice and Procedure. Comments were filed on October 15, 2001. We have taken the comments into account, as appropriate, in finalizing this order.
1. In D.00-07-052, the Commission adopted various number conservation measures, including fill rates standards, in accordance with delegated authority from the FCC.
2. The FCC Second Report and Order on NRO, FCC Docket CC 99-200, released December 29, 2000, (NRO Order) required state commissions to conform state-mandated number pooling rules to the FCC's rules after a transition period.
3. By Ruling dated April 30, 2001, the Commission revised its rules to reflect FCC rules (1) requiring carriers to satisfy a six-months-(rather than three-months)
-to-exhaust criterion to obtain numbering resources, and (2) calculating the fill rate formula as prescribed by the FCC.
4. The FCC NRO Order permits state commissions to continue using previously existing fill rates up to 75% even though the federal targeted fill rate is 60%.
5. In its First Report and Order, the FCC established six reporting categories (i.e., administrative, aging, assigned available, intermediate, and reserved) for telephone numbers.
6. The FCC's methodology for measuring the fill rate, simply divides the quantity of assigned numbers by the sum of the numbers in five FCC categories (administrative, aging, assigned, available, and reserve, but excludes intermediate numbers from the equation).
7. Pacific erroneously claims that the FCC includes intermediate numbers in calculating the fill rate.
8. In its NRO Order, dated March 17, 2000 (§ 21), the FCC states that intermediate numbers should not be counted in the code or block holder's inventory because the code or block holder does not control the provision of these numbers to end users.
9. Pacific fails to provide any documentary evidence that carriers are in fact including intermediate numbers in their fill rate calculations that are actually reported to the NANPA and used to determine eligibility for numbering resources.
10. To the extent that Pacific presumes that intermediate numbers are included in the FCC formula, Pacific's claims about satisfying a 75% fill rate are overstated.
11. Pacific has not provided sufficient documentation to warrant a reduction in the 75% fill rate requirement to 60% in view of the potential adverse effects on number conservation.
12. The FCC NRO requires that state commissions conform to FCC rules regarding the application of sequential numbering requirements.
1. The Commission is required as a matter of law to conform its number conservation rules to those adopted by the FCC, except where the FCC has provided discretion for states to continue employing different standards, such as fill rate levels.
2. To the extent that the Commission has already revised its months-to-exhaust standards and fill rate utilization formula to conform to FCC rules pursuant to a ruling issued on April 30, 2001, Pacific's petition regarding those issues is moot.
3. Pacific's Petition for Modification should be denied to the extent it seeks to modify the Commission's adopted fill rate standard, given the Commission's discretion to continue using the 75% fill rate and absent an evidentiary showing to the contrary.
4. For purposes of measuring carrier's fill rate under the 75% criterion established by the Commission, there is no basis to presume that intermediate numbers are included in the denominator of the fill rate formula.
5. Pacific's Petition for Modification should be granted to the extent it seeks an order confirming Commission rules to FCC's sequential numbering rules, given the lack of discretion for the Commission to elect not to conform its rules in this area.
IT IS ORDERED that:
1. Pacific Bell (Pacific) Petition for Modification of Decision (D.) 00-07-052 is hereby granted, in part, as provided below. The following modifying language is adopted:
"Carriers must first assign all available telephone numbers within an opened thousands-block before opening another thousands-block, unless the available numbers in the opened thousands-block are not sufficient to meet a customer request. A carrier is not required to meet a strict utilization threshold prior to moving to a new thousand-block, if the carrier can demonstrate: (1) a genuine request from a customer detailing the specific need for telephone numbers; (2) the inability on the part of the carrier to meet the specific customer request for telephone numbers from the surplus of numbers within the carrier's currently activated thousand-block."
2. Pacific's Petition to Modify D.00-07-052 is denied to the extent it seeks to modify the existing 75% fill rate requirement.
3. The motion of Verizon Wireless for leave to file a late response to the Petition is granted.
This order is effective today.
Dated November 8, 2001, at San Francisco, California.
LORETTA M. LYNCH
President
RICHARD A. BILAS
CARL W. WOOD
GEOFFREY F. BROWN
Commissioners
Commissioner Henry M. Duque, being necessarily absent, did not participate.
