III. Discussion

A. Procedural Issues

Aside from the substantive merits of any issues raised by the City, we find that its Petition to Modify is procedurally defective in failing to comply with the requirements of Rule 47 which requires the petitioner to include specific wording to carry out all requested modifications to the decision. Also, allegations of new or changed facts must be supported by an appropriate declaration or affidavit. The City fails to comply with these procedural requirements. Moreover, although the City describes its pleading as a Petition to Modify D.00-01-023, the requested relief would in effect entail a modification of D.98-06-018, issued in June 1998, wherein the 619 NPA relief plan was adopted. In its justification for

the proposed modifications, the City focuses its arguments on alleged changed circumstances since the issuance of D.98-06-018. Yet, the City fails to explain why it could not file its Petition within one year of the issuance of D.98-06-018. Rule 47(d) states that a petition for modification must be filed within one year of the decision proposed to be modified, or else provide an explanation why it could not have been filed sooner.

Although these procedural deficiencies provide a basis for considering a summary dismissal of the Petition to Modify, we conclude that public policy considerations warrant our substantive consideration of the City's Petition and accompanying motion in view of the heightened concern over area code issues within the 619/858 NPAs.

Since the Petition seeks modifications affecting both the first and second phases of the 619 NPA relief plan, we shall address the merits of the Petition separately in terms of each relief phase separately. The Petition raises both the issue of whether each of the relief phases should be deferred and whether a seven-digit overlay is an appropriate interim solution to address the code exhaustion problem.

B. Proposed Deferral of Phase 1 (858 Area Code Implementation)

As a basis for its requested modification, the City claims that the Commission did not have adequate information about the level of customer dissatisfaction with the 858 split at the time of either D.98-06-018 or D.00-01-023. The City claims that additional information has come to light about the degree to which San Diego citizens are "outraged by the 858 split and support an overlay as an area code relief measure." As support for this claim, the City makes reference to public hearing convened by the Mayor and City Council on the planned 619/935 NPA split. The City claims a "significant number" of citizens

attended the public hearing and raised concerns about both the 858 and 935 NPA splits. The City also makes reference to its own "informal survey" where it claims individuals expressed "overwhelming" opposition to the 858 split.

In D.98-06-018, we acknowledged the fact that both splits and overlays have disruptive effects, and that any method of introducing a new area code will not be popular with customers who are subject to such disruptions. Nonetheless, we carefully weighed the offsetting impacts, including consideration of customer preferences, in concluding that a geographic split was preferable to an overlay for the 619 NPA at that point in time.

The fact that certain customers have expressed displeasure in recent public meetings and surveys with the 858 NPA split thus does not negate any of the findings of either D.98-06-018 or D.00-01-023. Rather, it merely confirms our previous findings regarding customers' general dislike of further proliferation of more new area codes. To the extent that the public input provided by the City has a message, we perceive that it is customers' dislike of splits, rather than pervasive public support for an overlay in the 619 NPA, either of the ten-digit or the seven-digit version.

In a series of decisions beginning particularly with D.99-09-067, wherein we suspended the 310 NPA overlay, we have been progressively taking positive steps to stem the proliferation of new area codes within California through the use of number pooling and other aggressive conservation measures. Yet, the decision as to whether, or to what extent, a particular area code relief plan is needed--or can be deferred--must be assessed based upon the unique situation facing each NPA. Although we have been delegated additional authority by the FCC to pursue various number conservation initiatives to maximize the lives of existing NPAs, we are still obligated to provide for timely area code relief when necessary to avoid code exhaustion. The FCC clearly stated that its delegated grants of authority "are not intended to allow the California Commission to engage in number conservation measures to the exclusion of, or as a substitute for, unavoidable and timely area code relief ... the California Commission continues to bear the obligation of implementing area code relief when necessary, and we expect the California Commission to fulfill this obligation in a timely manner." (FCC Order ¶ 9.)

With respect to Phase 1 of the 619 NPA relief plan, we conclude that it is simply too late to reinstate permissive dialing for the 858 NPA without causing code exhaustion. The premise underlying the City's proposed deferral of Phase 1 is that a code utilization study, number pooling, and related number conservation can be used to extend the life of the 619 NPA to the point that the 858 NPA implementation can be reversed. Yet, such conservation measures can only have an impact where at least some unassigned codes remain available which can be used more efficiently in order to extend the remaining life of the NPA. With the final implementation of the 858 NPA completed as of March 2000, there are no remaining unassigned NXX codes in the 619 NPA to replace numbers now designated for the 858 NPA. As a result of the Phase 1 split, approximately 276 NXX codes became available for assignment in the 619 NPA. Yet, these NXX codes can be assigned from the 619 NPA on a going forward basis only because they have been reclaimed by opening the 858 NPA. Likewise, the City's proposal to modify the lottery to ration only one code every other month would not provide for the reversal of Phase 1 implementation since no 619 NPA codes remain available for the lottery except through the creation of the 858 NPA split.

Likewise, the City's request for an "open season" allowing customers the option to switch back from the 858 to the 619 NPA is not feasible. The City's "open season" proposal presumes that individual customers, each assigned numbers within the same NXX prefix could choose either the 858 or the 619 as their area code. Yet, under the current programming for the geographic split, each NXX code is assigned to a single rate center, either in the 619 NPA or the 858 NPA. Individual NXX codes cannot be assigned to more than one rate center. Moreover, splitting a rate center between two different NPAs causes serious technical problems and is prohibited by industry planning guidelines. The City's proposal for an "open season" essentially would constitute a form of an overlay where two area codes are assigned within a single geographic area. Aside from all of the other objections to an overlay, either in seven-digit or ten-digit forms, as we discuss below, the open season would produce an inefficient use of scarce number resources by limiting the ability of carriers to assign the same seven-digit number in both NPAs.

The open season would also tend to generate public confusion by creating general uncertainty as to whether a caller's number is still in the 858 NPA or has been changed back to the 619 NPA. A caller would have no systematic way of predicting which of their neighbors had converted back to the 619 or had stayed in the 858 NPA. Moreover, the post-mandatory dialing period for the 858 split was scheduled to end on March 11, 2000. Thus, the 858 NPA conversion is already completed at this point, and beyond the point where it can realistically be reversed. With the end of the mandatory dialing period, customers in the 858 NPA may now be assigned seven-digit numbers also in use by customers in the 619 NPA. Thus, any customer that had been assigned such a number would be unable to change it to the 619 area code since the number would already be in use elsewhere.

C. Deferral of Phase 2 Relief (935 Area Code Implementation)

On the other hand, we conclude that some potential exists for the deferral of the second phase of the 619 NPA relief plan. In D.00-01-023, we directed the ALJ to solicit comments on the prospects for deferring the implementation of the Phase 2 relief plan. Comments were filed in response to the ruling of the ALJ. As a basis for this decision, we consider both the comments filed in response to the ALJ ruling pursuant to D.00-01-023, as well as responses to the City's Petition and Motion.

Parties express differing views concerning the feasibility of deferring Phase 2 implementation. Certain parties object to deferral of the Phase 2 NPA on the basis that there is not enough time to implement necessary conservation measures before codes will exhaust. In particular, parties argue that number pooling could not be implemented in the 619 NPA until sometime during the year 2001 at the earliest, given the requirement to stagger the implementation of number pooling and the already scheduled number pooling trials for the 310, 415, and 714 NPAs. These parties argue that it would be too late to provide meaningful deferral of code exhaustion if number pooling must wait one year or longer.

We are not persuaded that the scheduling constraints involving number pooling implementation are fatal blows to the prospects for deferring Phase 2 of the 619 NPA relief plan. Even assuming a number pooling trial could not begin in the 619 NPA until at least a year from now, preliminary preparations for eventual number pooling could begin immediately. For example, carriers can be ordered to begin preserving uncontaminated thousand-blocks in anticipation of subsequent donations for number pooling. By beginning advance planning now,

the potential number of thousand blocks that may be available for pooling can be maximized.

As a first step, we shall order herein that carriers serving rate centers in the 619 NPA shall within 30 days of this order identify all numbers that have not been used in blocks of 1,000 to the extent those number blocks are less than 10% subscribed. Carriers are directed not to further contaminate 1,000 number blocks by using any numbers in those blocks in cases where the carrier has the option to use other number blocks that are more than 10% subscribed. Carriers that fail to comply with this directive shall be subject to any penalties the Commission may impose.

Moreover, there are a number of other measures that can be implemented between now and the time number pooling could be initiated to promote more efficient utilization of number resources. In particular, the various conservation measures that we have adopted for the 310 NPA have the potential to likewise conserve numbers if applied to the 619 NPA. For example, carriers can be made subject to more stringent imminent exhaust and fill rate criteria as a basis to qualify for obtaining additional numbering resources. Carriers can also be required to return any NXX codes that are not going to be utilized within a prescribed timeframe.

As noted above, the Phase 1 split provided approximately 257 NXX codes for assignment within the 619 NPA. With continued rationing through the lottery, coupled with implementation of other feasible number conservation measures, we conclude that the potential exists to defer the currently projected code exhaustion date for Phase 2, at least on an interim basis. The Phase 2 area code has not yet entered into the permissive dialing period. On March 8, 2000, the Commission's Executive Director sent a letter to Pacific pursuant to Rule 48(b), granting a deferral of the deadline for mailing customer notices concerning the implementation of the Phase 2 split. The Executive Director applied the extension to all carriers in the 619 NPA to continue until further notice from the Commission concerning the status of deferral of the Phase 2 split plan. Thus, customers have not yet received the final notification to prepare for the introduction of permissive dialing for the Phase 2 relief plan.

In the interests of sparing the customers of the 619 NPA with yet another area code before it is really necessary, we conclude that an interim deferral of the Phase 2 area code is both feasible and desirable, and hereby order it. We hope to spare customers of the need to open the 935 code as long as possible through the use of effective number conservation measures. We agree with the City that a study of code utilization will provide a more informed basis upon which to evaluate the need for further NPA relief. We conclude that a more complete assessment of the longer-term prospects for deferring the Phase 2 relief plan can be made after receipt of the number utilization study for the 619 NPA, currently scheduled to be completed by June 1, 2000, in conjunction with consideration of other conservation measures.

The due date for the 619 NPA utilization study was established by the ALJ ruling of January 18, 2000, as part of the statewide schedule for the reporting of NPA number utilization studies pursuant to the statutory requirements of AB 406 (codified as § 7937(a) of the Public Utilities Code). Following our review of the 619 NPA utilization report and after making a further assessment of appropriate scheduling of number pooling in the 619 NPA and other conservation measures, we shall then make a further determination concerning the Phase 2 relief plan. To the extent that we decide to continue to defer the Phase 2 NPA implementation in order to pursue number pooling, we may treat Phase 2 as a backup plan, in accordance with the FCC delegation of authority in its September 15, 1999 Order. The FCC requires that the California Commission be prepared to implement a backup NPA relief plan prior to the exhaustion of numbering resources in the NPA at issue. (FCC Order § 15.) We remain mindful of this obligation.

Therefore, we hereby grant a temporary suspension of the Phase 2 implementation schedule for the 619 NPA pending our subsequent review of the filing of the code utilization study due on June 1, 2000. Carriers serving in the 619 NPA shall notify their customers within 60 days of this order that the implementation schedule for permissive and mandatory dialing of the 935 area code is suspended by the Commission until further notice.

After receipt and review of the June 1, 2000, utilization study and assessment of potential conservation measures that can be employed, we will make a further determination concerning the potential scheduling of number pooling in the 619 NPA and the prospects for continued deferral of the Phase 2 implementation schedule. We shall issue a subsequent decision or assigned commissioner's ruling providing further guidance to carriers and parties concerning our findings on number pooling, other conservation measures, and the disposition of the Phase 2 relief plan.

D. Proposed Seven-Digit Overlay

We reject the City's proposal, however, to use a seven-digit overlay as an interim solution in conjunction with the Phase 2 deferral. In our denial of each of the two petitions for modification filed by Kuczewski, we have already addressed the reasons why a seven-digit overlay is neither desirable nor feasible as a relief solution for the 619 NPA. In his second petition for modification of D.98-06-018, Kuczewski had argued that the existence of a seven-digit overlay in New York City (New York) calls into question the Commission premise that the FCC would not allow a seven-digit overlay.

While we recognize that a seven-digit overlay is presently in effect within New York, that fact does not change our previous conclusion in D.00-01-023 concerning the FCC prohibition against overlays absent mandatory 1+10-digit dialing for all calls. The existence of the seven-digit overlay in New York does not indicate that the FCC has reversed its policy prohibiting seven-digit overlays. The New York overlay continues due to a stay that is effective in the State of New York, not the State of California. The circumstances under which the stay was imposed evolved under conditions that are different from conditions in California. Specifically, the New York order implementing the overlay was issued prior to the passage of the Telecommunications Act of 1996 (Act) and the issuance of the FCC's rules implementing the Act. The passage of the Act gave the FCC plenary authority over numbering issues, including policies concerning the creation of new area codes. The New York overlay is currently the subject of an appeal before the US Court of Appeals for the Second Circuit (Court). The New York overlay has been allowed to continue only because the Court issued a stay of the FCC rules, effectively maintaining the status quo in New York while the Court considers the underlying merits of the request to waive the FCC's mandatory 10-digit dialing requirement.

Thus, the unique circumstances permitting the New York overlay to continue do not indicate that the FCC has changed its policy prohibition against seven-digit overlays. Likewise, since California did not have an overlay in effect prior to the passage of the Act, the circumstances that led to the stay of the FCC rules in the State of New York do not apply to California. In any event, nothing concerning the circumstances surrounding the seven-digit overlay in New York leads us to reach any different conclusion that we reached in D.00-01-023 concerning the FCC's mandatory 1+10-digit dialing requirement for overlays and its applicability to California.

Therefore, we deny the City's request for a seven-digit overlay, and instead, shall pursue number pooling and other conservation measures as the appropriate solution for minimizing adverse impacts of NPA relief plans on affected customers.