Discussion

As an initial issue, we consider whether the Petition for Modification should be simply dismissed on the grounds that it is procedurally defective. Petitioner concedes that the Petition was filed after the one-year deadline prescribed under Rule 47(d), but he argues that extenuating circumstances justify the Commission's consideration of the Petition on its merits. Petitioner has not been a participant in Commission proceedings previously. He states that reliance on media sources for information led to his initial belief that nothing could be done to stop the pending 619 area code split. It was only after the educational efforts of the Utility Consumers' Action Network and the Commission's own San Diego Outreach Office that the Petitioner became aware of the legal process for seeking reconsideration or modification of a Commission decision.

Moreover, although he did not meet the formal filing deadline, Petitioner did informally communicate his concerns over the 619 area code split in a series of e-mail messages sent to Commission staff members on June 6, 1999, exactly one year after the issuance date of D.98-06-018.

Although Petitioner failed to satisfy the one-year filing requirement, we are still inclined to consider the substance of the Petition for Modification on its merits. In view of Petitioner's lack of familiarity with the Commission's procedural rules and given the strong public interest in the issues raised by the Petition, extra latitude is in order. We conclude that, notwithstanding the procedural defects in the filing, substantive consideration of the issues raised in the Petition for Modification is warranted.

The Petition raises two separate questions: (1) whether it is feasible or desirable to suspend the implementation of the previously approved 619 NPA three-way geographic split for consideration of an alternative remedy, and (2) if so, whether a seven-digit overlay should be implemented as the appropriate alternative remedy. Since the adopted 619 NPA three-way geographic split called for implementation of two new area codes in different phases, we shall address the Petitioner's proposal with respect to each of the two phases of implementation.

We acknowledge the concerns raised by the Petitioner regarding the disruptions and adverse impacts of splitting the 619 NPA, as approved in D.98-06-018. We conclude, however, that a suspension of the currently adopted schedule for at least the first phase of the three-way split relief plan for the 619 NPA is not an appropriate alternative course of action.

Although the Petitioner seeks to draw analogies to our decision suspending the 310/424 NPA overlay, the circumstances that led us to suspend implementation of the 310/424 NPA overlay are different from the circumstances here. First, the 310/424 NPA suspension was undertaken prior to the date that the new 424 area code began to be assigned to customers. In this case, the new 858 NPA code has already begun to be assigned to customers, and mandatory dialing of the new area code was due to begin in early December. The suspension of the 310/424 NPA overlay did not require any action on the part of customers since no customers had yet begun to use the new area code. By contrast, the new 858 area code was opened for permissive dialing on July 12, 1999. Mandatory dialing began in early December 1999. At this late date in the implementation process, most affected customers in the 858 NPA have likely already undergone the time and expense to incorporate use of the new 858 area code.

In comments to the draft decision, Kuczewski claims this problem is easily overcome by simply allowing customers to retain both their 619 and 858 area codes, reinstituting the permissive dialing period indefinitely. We find Kuczewski's suggested solution to be unrealistic. Aside from the additional time for switch conversions and customer confusion that would be entailed in reverting from mandatory back to permissive dialing, there are simply insufficient number resources to continue a permissive dialing period. As of September 1, 1999, only 58 NXX codes remained for assignment in the 619 NPA. At the rate of 11 codes per month being assigned through the lottery, the 619 NPA would have completely exhausted within six months absent the final implementation of the 619/858 NPA geographic split.

To provide sufficient numbers during an extended permissive dialing period, Kuczewski suggests that numbers could be assigned within the 619 NPA by drawing from several surrounding area codes (i.e., 760, 858, 442, 935), apparently as multiple simultaneous "overlays." Beyond the generic problems with instituting a single overlay, Kuczewski's proposal would compound these problems by extending the overlay to include up to five simultaneous area codes. Kuczewski's proposed solution ignores the potential for customer confusion, chaos, and disruption from having to figure out which of five different area codes may apply within a single geographic area. Kuczewski ignores the time that would be required to provide affected customers in those affected NPAs the opportunity to provide input on his new "multiple NPA overlay" relief plan, and to notify and educate customers in the event such a plan was actually adopted. For all of these reasons, the reinstitution of permissive dialing of the 858 area code is not a realistic option at this point.

Since the three-way geographic split of the 619 NPA was to be implemented in two phases, the beginning of permissive dialing of the second new area code is not scheduled to begin until June 6, 2000. Although the consequences of a suspension in the implementation schedule for the second new area code is not as severe as those for the already existing 858 area code that took effect last summer, we still do not believe that a seven-digit overlay is the proper solution.

The Petitioner argues that his proposal for an overlay is superior because it would not require 11-digit dialing, as was the case in the 310/424 NPA overlay.

Kuczewski further claims that there is sufficient time to implement a seven-digit overlay before code exhaustion would occur. Kuczewski argues that numbers in the overlay NPA could be given out immediately without waiting for the end of mandatory dialing, and that no "permissive" or "practice" dialing period would be needed. Kuczewski claims that the seven-digit overlay could be implemented without affecting a single customer.

We disagree. Even though existing telephone numbers would retain the 619 area code, customers would still be affected by the overlay. Kuczewski fails to address the potential adverse affect on all customers as result of disrupting the long-held practice of identifying geographic regions by a single area code, even assuming away the mandatory 1+10-digit dialing requirement. Customers would have to deal with the loss of this long-held practice, suddenly being subjected to one or more area codes within a single geographic region. A transitional dialing period accompanied by a public education plan would still be needed to prepare the public for the changes brought about by an overlay.

Even assuming the Petitioner's proposal for an overlay to preserve seven-digit dialing was legally sustainable, the remaining infirmities of an overlay would still exist. Customers would still have to deal with the confusion of potentially dialing a different area code merely to call a next-door neighbor, or being assigned different area codes within the same residence or business where multiple numbers were used.

Customers could no longer be certain as to the correct area code for a number within the overlay region simply by reference to the geographic location of the called party's number. Moreover, Kuczewski's proposal would permit seven-digit dialing only where both the calling and called party had the same area code. Yet, the likelihood that a neighboring number will share the same area code will diminish over time. Even though most holders of 619 NPA numbers may initially only need to dial seven digits for most numbers, new numbers assigned to the underpopulated 858 NPA will proliferate over time, while relatively few new numbers will be available in the 619 NPA which is already heavily populated. Thus, the likelihood will progressively increase of a 619 NPA customer having to dial the 858 area code to reach a neighboring number as time passes. If a next-door neighbor had been assigned the overlay area code, then 10-digit dialing would still be required for a 619 NPA customer to call that neighbor. Under Kuczewski's proposal, customers could be uncertain as to whether a number called within their own neighborhood requires seven or ten digits, depending on whether the area code is 619 or 858. This uncertainty would grow over time as more numbers were assigned with the new area code. By contrast, Commission's adopted geographic split provides customers with the predictability of uniform seven-digit dialing for all calls within the prescribed geographic boundaries of the 619 NPA.

Additional time for a public education plan would still be needed to acclimate the public to the overlay dialing process whereby the area code is no longer identified with a unique geographic area. Even if the seven-digit dialing feature were to be implemented as proposed, this advantage would mean little to those customers forced to take a number in the overlay NPA. Such customers would still need to dial 11 digits for the vast majority of their calls since the 858 NPA would be underpopulated, and calls to the 619 NPA would still require dialing 11 digits. The institution of a seven-digit overlay for the 619 NPA would also isolate it from all other NPAs in the state, and force 619 NPA customers into an anomalistic dialing pattern that is not used anywhere else in the state. Implementing such a new relief plan would take additional time, also delaying carriers' access to numbering resources and their ability to provide competitive telephone service within the 619 NPA. Moreover, newer competitors that could only obtain numbers in the new NPA could be placed at a competitive disadvantage by being unable to offer numbers for new lines in the more desirable 619 NPA.

In comments on the Draft Decision, Kuczewski argues that any competitive advantage that incumbent carriers may have with a seven-digit dialing overlay is only a short-term problem that will be resolved when local number portability (LNP) can be fully implemented. On this basis, Kuczewski claims that such a short-term problem should not be a constraint on approving a seven-digit overlay. LNP is already deployed in the 100 largest Metropolitan Statistical Areas (MSAs) nationally. In any event, the availability of LNP, of itself, does not fully address the problem of anticompetitive dialing disparities. LNP only allows customers to retain their previously existing numbers when switching carriers. The ability to port existing numbers, however, does not address the needs of new customers to the 619 NPA or existing customers seeking additional lines with a 619 area code. Such customers would likely have to take new numbers from the new area code. Thus, the availability of LNP will not solve the anticompetitive dialing disparity problem in the case of customers seeking new numbers in the 619 NPA. In recognition of this concern, the Federal Communications Commission (FCC) has recently determined that the availability of LNP does not ameliorate the anticompetitive dialing disparity between the old and new area code sufficiently to justify the elimination of mandatory 1+10-digit dialing as explained below.

Assuming all of the problems with the proposed seven-digit overlay plan could somehow be addressed, the fact remains that Commission policies as well as federal rules prohibit the implementation of an overlay without mandatory 1+10-digit dialing. It would be necessary for this Commission to amend its own prior decisions and then to seek a waiver from the FCC of this requirement. The FCC would then have to grant the waiver before such a proposal could be implemented. It is certain when or if such a waiver by the FCC might be granted.

In comments to the Draft Decision, Kuczewski argues that until we formally request a waiver of the mandatory 1+10-digit dialing requirement from the FCC and receive a denial, it is premature for the Commission to eliminate the seven-digit overlay proposal as a potential solution. Yet, the FCC has already issued an order (FCC 99-243) dated October 21, 1999, in which this identical issue was raised by several parties' petitions representing various telecommunications carriers and the Pennsylvania Commission. The Pennsylvania Commission explicitly requested that the FCC "make an exception to the mandatory 10-digit dialing requirement when long term number portability becomes available."¹ Yet, the petitions were ultimately denied by the FCC. The FCC concluded that the anticompetitive problems with a seven-digit overlay were unacceptable, and reaffirmed that overlay plans must include 10-digit dialing for all local calls between and within the area codes in the area served by an overlay. The FCC order contained an exhaustive discussion of the various arguments presented in favor of this proposal, yet rejected them. In view of the recent FCC order, we find no basis to conclude that the FCC would reach a different conclusion in response to the same arguments if petitioned by this Commission. Thus, it would be unreasonable to institute an overlay based on the speculation that FCC rules requiring mandatory 1+10-digit dialing for overlays might be reversed anytime soon, thus permitting a "seven-digit" overlay to be implemented.

For these reasons, we conclude that a seven-digit overlay plan as an alternative to either of the two splits planned for the 619 NPA is not practical or appropriate in this instance.

Our denial of the Petition is in no way inconsistent with our suspension of the 310/424 NPA overlay. In the case of the 310/424 NPA relief plan suspension, we were relieving customers of the disruptions and confusion which an overlay was expected to cause. In this case, we are being asked to impose an overlay on customers where one was not previously contemplated. We decline to impose such a burden on 619 NPA customers.

We do believe, however, that the prospect of more efficient number utilization methods, potentially including the process of number pooling for deferring the need for the second new area code scheduled in the 619 NPA, is an idea that at least warrants further consideration. Whatever resources would be required to attempt to implement a seven-digit overlay in the 619 NPA could be put to more productive use through the further study of the prospects for more efficient utilization of existing numbering resources in the 619 NPA. We have previously discussed the benefits of number pooling in D.99-09-067 and D.99-10-022. We incorporate that discussion here by reference. It may be possible to realize similar efficiencies in the use of numbering resources in the case of the 619 NPA. We shall therefore direct that steps be undertaken to study the feasibility of potentially avoiding or deferring the implementation of the second new area code for the 619 NPA. We shall address the details for adopting such a plan in a subsequent order. We direct the assigned Administrative Law Judge (ALJ) to promptly issue a ruling taking comments on this issue.