II. Background

In D.97-12-042, the Commission ordered the ILECs to furnish independent third-party DA providers, such as Metro One and InfoNXX,¹ with nondiscrimatory access to DA listings. The Commission stated that "access to database listings for DA purposes should be the same for and between all competing providers, including third-party databases vendors." Just prior to the issuance of D.97-01-042, the Commission determined in arbitration proceedings under § 252 of the 1996 Act that Pacific and Verizon should provide DA listings to CLCs "at the cost of the transfer media (electronic tape) plus reasonable costs for preparation and shipping of the media."² The Commission ordered that "the determination of appropriate cost recovery for the preparation and delivery of the information . . . be addressed in the [Open Access Network Architecture and Development] OANAD proceeding.³

Following the issuance of D.97-01-042, both InfoNXX and Metro One sought to negotiate interim rates for access for Pacific and Verizon's DA databases. Pacific initially indicated that the rate would be $0.0059 per listing, which InfoNXX and Metro One indicated was acceptable.⁴ However, before formal agreements could be established, the Commission allowed Pacific's Directory Assistance Listing Information Service (DALIS) tariff to go into effect, and Pacific thereafter insisted that it would furnish InfoNXX and Metro One with access to DA listings only in accordance that tariff. The DALIS tariff had been proposed in an advice letter filed before D.97-01-042 was issued and established pricing in excess of the rate that Pacific had promised to InfoNXX and Metro One.

By D.98-01-022, the Commission determined that Pacific's tariff rates should be used on an interim basis, however, subject to true-up, notwithstanding the tariff's differences from the rates that Pacific was charging CLCs for access to the same data. The Commission concluded that this interim arrangement would not constitute undue discrimination because rates included in the interconnection agreements between Pacific, on the one hand, and MCI WorldCom Network Services, Inc. and AT&T Communications of California, Inc., on the other, were "part of an integral package of terms and conditions specifically negotiated by the parties," and [i]t would not be appropriate to arbitrarily single out one term of such interconnection agreements and apply that term to other competitors that were not bound by the comprehensive terms of any one interconnection contract."⁵ Moreover, the Commission concluded that while "the parties have raised valid questions over the reasonableness of the ILEC's directory-access rate," third-party DA service providers would not be harmed because amounts collected from them would be recorded in a memorandum account and then subject to a true-up, with any excess refunded with interest at the three-month commercial paper rate, once permanent rates were established.⁶

Petitioners now seek a modification of D.98-01-022 to require that within 30 days after the effective date of the order for modification, Pacific and Verizon be required to re-compute charges for DA data previously furnished to third-party DA service providers based on the lowest rate, in effect at the time such data was provided, that they charged any other provider, including without limitation, the ILEC itself, its affiliates, and CLCs, and to refund to third-party DA providers the difference between the re-computed charges and the amounts actually paid by them

The Petitioners claim that the requested modification of D.98-01-022 is warranted because it has now been three years since D.98-01-022 was issued and four years since D.97-01-042 was issued while no resolution of the DA database pricing issue appears on the horizon. In the meantime, Pacific has had full use of the funds paid by Metro One, InfoNXX, and other independent third-party DA service providers pursuant to D.98-01-022 and continues to charge such providers the same tariff rates for DA data. Unless D.98-01-022 is modified, petitioners claim third-party DA service providers will continue to suffer undue economic hardship and be unfairly disadvantaged in the marketplace until such time if ever, that final costs and prices for DA database access are approved.

Petitioners also point to the Directory Listing Order issued by the Federal Communications Commission (FCC) on January 23, 2001⁷ in support of their Petition. In the Directory Listing Order, the FCC held that third-party DA service providers who are acting as agents or independent contractors for CLCs, or who provide call completion services, are entitled to receive access to DA database listings under the same rates, terms, and conditions that apply to CLCs. ILECs are also required to file agreements establishing rates, terms, and conditions for DA data basis access pursuant to Section 252 of the 1996 Act and third-party DA service providers meeting the FCC's criteria are entitled to opt into such rates, terms, and conditions.⁸ The FCC has not yet determined whether these same rules must be extended to include DA database access afforded to third-party DA service providers who are neither carriers nor acting on behalf of carriers. Nonetheless, Petitioners argue that it is discriminatory not to require that the same rates, terms, and conditions be extended to all DA service providers.

Comments in opposition to the petition for modification were filed by Pacific and Verizon.

Pacific claims that the modifications Petitioners have requested are contrary to law. Pacific argues that the FCC did not hold that ILECs must give a DA provider acting as an agent for a CLEC access to DA listing information at the lowest price charged to any other CLC. Instead, the FCC held that the DA provider-agent is entitled to access only at the price contained in its carrier-principal's interconnection. Pacific claims that Petitioner's requested modification to D.98-01-022 is, therefore, contrary to the FCC's January 23 Order, and should be denied. Moreover, Pacific argues that since petitioners are not entitled to the lowest rate charged any other CLC, their request for a refund using such a number as a benchmark is improper, and should be rejected as well.

Pacific also claims it is impossible for the Commission to determine whether Petitioners even fall within the scope of the FCC's January 23 Directory Listing Order because Petitioners have failed to present any evidence that they are in fact DA provider-agents, that their carrier principals have authorized them to obtain DA listing information on their behalf, or that Petitioners have paid different rate than their carrier-principals.

Both Pacific and Verizon also claim that Petitioners here have failed to comply with Rule 47(b) requiring factual allegations to be supported with citations to the record. For example, Petitioners allege that at some point Pacific "indicated that the rate [for DA access] would be $0.0059 per listing."⁹ Later, Petitioners allege that they are "third-party DA service providers who are acting as agents or independent contractors for CLCs."¹⁰ Pacific claims that bare allegations such as these are insufficient to support a petition for modification.

Verizon argues that Petitioners have failed to explain why they waited until over three years after the issuance of D.98-01-022 to file the petition. Rule 47(d) requires that if more than a year has elapsed since the effective date of the decision to be modified, the Petitioner must explain why the petition could not have been brought within one year of the effective date. Ordinarily, petitions allege factual or legal circumstances which have changed since the issuance of the decision and which support the requested modification. Verizon claims, however, that other than the passage of time, Petitioners here allege no such circumstances. Not only have Petitioners waited over three years from the issuance of the decision they seek to modify, but they have waited well over a year after submission of cost studies and commentary in the process intended to set permanent rates to replace the interim rates they now find objectionable.

Verizon also opposes the Petition, arguing that it ignores subsequent events and rulings which have taken place and misapplies existing decisions. Verizon believes D.98-01-022 already provides substantially the same lawful relief that Petitioners seek (i.e., a true up of interim rates). Verizon claims the true up mechanism already provides adequate protection to DA providers and that mere delay does not justify making the changes the Petitioners seek.