III. Discussion

Parties raise two general objections to the proposal to extend number conservation measures adopted in the above-referenced decisions to apply statewide. First, they object on the grounds that the FCC's recent NRO rulemaking preempts state action in this area. Second, they argue that the conditions that led the Commission to adopt these measures for the 310 NPA do not apply in other NPAs within California, and that such measures would unduly constrain carriers' access to numbers.

We recognize that the rules adopted by the FCC in its NRO Order need to be taken into account in determining to what extent the number conservation measures adopted for the 310 NPA can or should be extended to apply to other NPAs within California. Nonetheless, we conclude that the NRO does not completely foreclose us from taking action, at least to the extent discussed below, to extend certain conservation measures beyond just the 310 NPA.

We shall first address the question of whether the provisions in D.99-11-027 requiring carriers to return unused codes are to be extended to apply statewide. We conclude that it is within the scope of the FCC's delegated grant of authority for this Commission to implement statewide orders requiring carriers to return unused codes, provided that we follow FCC-mandated criteria as prescribed in the NRO. As stated in Paragraph 237 of the NRO: "[A] state commission may request proof from all code holders that NXX codes have been activated and assignment of numbers commenced. We further direct the NANPA to abide by the state commission's determination to reclaim an NXX code if the state commission is satisfied that the code holder has not activated the code within the time specified by this Report and Order." The FCC also permits the state commission not to follow the reclamation procedures set forth in the Central Office Code Assignment Guidelines relating to referring the issue to the Industry Numbering Committee, as long as the code holder is given an opportunity to explain the circumstances causing the delay in activating NXX codes.

Accordingly, we shall direct carriers in every NPA on a statewide basis to return codes to the NANPA that have not been activated within the six-month time specified by the FCC. The criteria adopted for the 310 NPA in D.99-11-027 requiring return of codes within three months shall also be amended to provide for a six-month window before requiring the return of codes in order to conform with the FCC rules. The institution of this requirement on a statewide basis will guard against carriers hoarding numbers that are not currently needed, and will help to promote the efficient use of numbers on a statewide basis.

In D.99-11-027, we adopted "imminent exhaust criteria" that were separately applied to requests for growth codes and to initial codes in a rate center. Since the FCC NRO Order has adopted documentation requirements that carriers must meet to obtain an initial code in each rate center, our delegated authority to apply the imminent exhaust criteria in D.99-11-027 in the 310 NPA or on a statewide basis for obtaining initial codes is superseded. Therefore, we shall not adopt separate statewide criteria for carriers to obtain initial codes.

Specifically, the NRO Order requires carriers to provide, as part of their applications for initial numbering resources, evidence (e.g., state commission order or state certificate to operate as a carrier) demonstrating that they are licensed and/or certified to provide service in the area in which they seek numbering resource. Carriers requesting initial numbering resources must also provide the NANPA appropriate evidence (e.g., contracts for unbundled network elements, network information showing that equipment has been purchased and is operational or will be operational, business plans, or interconnection agreements) that its facilities are in place or will be in place to provide service within 60 days of the numbering resources activation date. The burden is on the carrier to demonstrate that it is both authorized and prepared to provide service before receiving initial numbering resources. These requirements apply equally to carriers requesting an initial NXX code and those requesting an initial thousands-block pursuant to number pooling.

The FCC states, however, that if a carrier's initial request seeks more than one code or thousand-block within a rate center, the additional codes or thousand-block will be treated as growth codes, subject to separate requirements. In the case of growth codes, the FCC did not implement immediately effective measures for carriers to qualify for codes or thousand number blocks. We conclude, therefore, that we still retain delegated authority to set criteria for obtaining growth codes until or unless the FCC implements rules for growth codes that are in conflict with state-mandated criteria.

We conclude, therefore, that we continue to retain the delegated authority to impose the "imminent exhaust criteria" adopted in D.99-11-027 as applied to requests for growth codes or thousand-blocks in the 310 NPA. Likewise, we conclude that we have the delegated authority to extend the applicability of the "imminent exhaust criteria" to cover all other NPAs within California. We conclude that the extension of the imminent exhaust criteria to all other NPAs within California is also in the public interest as a means of helping to ensure that numbering resources are used efficiently. By requiring carriers to meet these requirements before being eligible to obtain a growth code or thousand-block (in the case of number pooling), there will be greater assurance that numbering resources are allocated only when and where they will actually be used. Accordingly, we hereby extend the "imminent exhaust criteria" adopted in D.99-11-027 for the 310 NPA to apply also to all other NPAs in California. We shall make certain minor refinements, however, in the application of the criteria as previously adopted in D.99-11-027.

At the time that we adopted the "imminent exhaust criteria," we directed carriers to use the definitions of numbers in the assigned, reserved, administrative, aging and available categories as defined by the Industry Numbering Committee. Since the FCC has subsequently adopted revised definitions for numbers in these categories in its NRO Order, we shall direct carriers to incorporate the revised FCC definitions of number categories in complying with our adopted "imminent exhaust criteria."

For the category of "reserved" numbers, the FCC permitted carriers to include numbers that are held for a period of no more than 45 days. Any numbers held beyond the 45 days must categorized as "available." Since our previously adopted criteria in D.99-11-027 defined reserved numbers as those for which the carrier has a legally enforceable written agreement, we shall revise our "reserved number" definition to conform to that of the FCC. Likewise, we shall conform our requirements for the aging of numbers to conform to the NRO Order. Thus, the aging period as previously adopted in D.99-11-027 shall be revised for residential numbers from 60 to 90 days, and for business numbers from six months to 360 days, as prescribed by the NRO Order. We shall apply these revised number category definitions uniformly in applying our "imminent exhaust criteria" both to the 310 NPA as well as to all other NPAs within California.

In D.99-11-027, we also directed carriers to supply six months of historic and six months of forecasted utilization data to support exhaust projections. For purposes of expanding the rules to apply on a statewide basis, we shall require carriers to provide 12 months of historic and 12 months of forecasted utilization data for each NPA in which numbering resources are requested. We believe a 12-month time span will provide a more meaningful basis for evaluating carriers' exhaust projections. In setting this requirement, we do not intend to duplicate any reporting requirements that will subsequently be imposed by the NANPA pursuant to FCC rules. The NRO Order adopts utilization reporting requirements for all carriers, with the first report to be filed with the NANPA no later than August 1, 2000. Once such federal reporting requirements for utilization data are implemented, we shall simply require carriers to provide copies to the TD staff of the utilization reports prepared pursuant to those federal reporting requirements covering the requisite 12-month time span.

With respect to rules governing carriers' ability to obtain growth codes, the FCC deferred the adoption of specific qualifying utilization criteria until early in 2001. Thus, between now and the time that the FCC's rules are effective, we conclude that our delegated authority to extend our own fill rate criteria for carriers' obtaining growth codes for NPAs within California is not yet superseded. Accordingly, we have the authority to extend the currently adopted fill rate criteria for the 310 NPA to other NPAs until federally mandated fill rate rules obtaining growth codes take effect.

Various parties argue, however, that the Commission would be ill advised to adopt criteria that would have to be changed within just a few months when FCC rules take effect early in 2001. Parties further claim that even apart from FCC preemption, the 310 NPA number conservation criteria should not be extended to other NPAs because the circumstances surrounding the adoption of those criteria in the 310 NPA are unique and do not apply elsewhere.

While the circumstances in the 310 NPA may be more extreme than in most other NPAs, the general environment of claimed number shortages and inefficient number resource allocations are by no means unique to the 310 NPA. The strain being placed on numbering resources is pervasive in NPAs throughout the state, particularly in large metropolitan areas where local exchange competition is the strongest.

We conclude that it will promote more efficient utilization of numbering resources to apply the 75% fill rate criteria adopted in D.00-03-054 to other NPAs in California as well as for 310 NPA, even for the limited time remaining before FCC rules take effect. Every month that passes without stringent criteria in effect in other NPAs, the risk increases that NXX codes will be assigned to carriers that do not truly have a imminent need for such codes, thereby unnecessarily accelerating code exhaustion and depriving other carriers of codes that need them. The interim adoption of state-mandated fill rate criteria will help bridge the gap until federal criteria become effective.

We therefore shall extend the 75% fill rate criteria adopted for growth codes and the 310 NPA should be applied to all other NPAs within California.

We thus direct that the extension of the 75% fill rate criterion on a statewide basis be implemented immediately, even though it will be superseded by FCC rules in early 2001. The extension of our 75% utilization rate requirements beyond the 310 NPA will help to address the impending claims of code exhaustion in other NPAs, and will promote the goal of efficient number utilization during the interim period until FCC rules take effect.

The NRO Order determined, however, that minimum fill rate criteria should not be applied to carriers seeking number resources through thousand-block number pools. Accordingly, since the FCC has required that state pooling trials be conformed to federal rules by September 1, 2000, our state-mandated 75% fill rates cannot realistically be applied to thousand number blocks in those NPAs in which number pooling trials will be implemented within the next few months. Yet, only LNP-capable carriers can currently participate in number pooling trials. Thus, we shall not extend our adopted 75% fill rate criteria to apply to LNP-capable carriers' requests for number resources in the 415, 714, or 909 NPAs since pooling trials are scheduled to begin in each of these NPAs later this year. We shall, however, apply the fill rate criteria to non-LNP-capable carriers in those NPAs since they will not be participants in the pooling trials and will not be subject to the fill rate exemption.

In D.00-03-054, we also required that all carriers assign numbers in the 310 NPA in sequential thousand number blocks, moving to the next block only once a 75% fill rate has been attained in the prior block. Each pooling participant in the 310 NPA was required to show that it has achieved a minimum fill rate of 75% in each sequential thousand number block within the rate center or switch, as applicable, where it seeks to obtain additional number blocks. To qualify for obtaining an additional NXX code, the non-LNP-capable carrier in the 310 NPA was required to show that a minimum 75% fill rate has been applied sequentially in each of the thousand-blocks comprising its NXX codes in a given rate center where additional codes are requested.

In its NRO Order, the FCC adopted a rule requiring carriers seeking to utilize a previously opened thousand number block in its entirety before opening an uncontaminated block to provide supporting justification to the state commission. As justification for opening the uncontaminated block, the carrier would be required to show:

Since the NRO Order requires state commissions to conform their existing delegations of sequential numbering authority to the FCC's adopted provisions by January 1, 2001, we continue to have delegated authority to apply our own sequential numbering requirements on a statewide basis during the interim period. The FCC criteria differ somewhat from the criteria we adopted for sequential numbering in the 310 NPA, particularly with respect to our requirement to achieve a minimum 75% fill rate in the currently active block before opening an uncontaminated block next in sequence. In the interests of preserving the maximum number of uncontaminated thousand-blocks for subsequent number pooling, we conclude that it is appropriate to extend our sequential numbering rules for the 310 NPA to apply on a statewide basis, at least for numbering resources being sought outside of a number pool. In those instances, we shall require that all carriers assign numbers in sequential thousand number blocks, moving to the next block only once a minimum 75% fill rate has been attained in the prior block. The 75% requirement shall be applied in addition to the sequential numbering requirements imposed by the NRO Order.

Since FCC rules preclude the use of a specific minimum fill rate requirement for number resources sought through a number pool, we shall simply apply the FCC's adopted sequential numbering requirement articulated above as the criteria for carriers' requests for thousand-blocks in a number pool.

In D.99-11-027, we authorized the Director of Telecommunications Division, in consultation with the assigned Commissioner, to set aside codes to be disbursed outside of the lottery to carriers demonstrating extraordinary need in the 310 NPA. We also stated that the Director of Telecommunications Division in consultation with the assigned Commissioner, shall establish rules and guidelines determining standards for extraordinary need in the 310 NPA, and shall consider as criteria: (1) carriers' inability to avail themselves to the thousand-block pooling and (2) carriers having been forced to deny service to customers for lack of numbers. By today's order, we extend this directive to apply to all NPAs within California.

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