II. Competitors' Access to Pacific's Listing Data Obtained Through a National Vendor

A. Background

In this decision, we also resolve issues involving competitors' access to Pacific's DA database as identified in D.99-08-028. In that decision, we ordered modifications and denied rehearing of Resolution T-16288 in which the Commission approved an Advice Letter filing by Pacific for authority to provide a nationwide DA service. Pacific sought to establish the nationwide listing service via the 411 dialing code, the same code used for local DA. MCI had protested the Advice Letter on various grounds, including the claim that Pacific was not providing competitors access to its entire database of California DA listings. In Resolution T-16288, the Commission concluded that the Advice Letter met the requirements set forth in Commission orders and General Order 96-A. The Commission declined to address the issue of competitors' access to Pacific DA database in Resolution T-16288.

An Application for Rehearing of Resolution T-16288 was then filed by MCI, alleging that the Commission erred by failing to condition the Advice Letter approval on Pacific providing its competitors with full access to its DA database in violation of Section 251(b)(3) of the 1996 Telecommunications Act.⁴ Pacific responded that it complies with both Section 251(b)(3) and 251(c)(3),⁵ and that access is provided to 100% of its own database and to listing information authorized to be disclosed by competing local exchange carriers (CLCs). Pacific cited D.97-01-042 prohibiting disclosure of listing information from CLCs absent their authorization.

The Commission issued D.99-08-028 on August 5, 1999, denying rehearing, but modifying the Resolution to clarify the manner in which the listings access would be resolved in the Local Competition docket (R.95-04-043; I.95-04-044.). In particular, the Commission solicited comments on various questions relating to competitors' access to national database listings provided through the national database vendor used by Pacific, and the manner in which Pacific provides access to its directory database among competing entities. Opening comments in response to those questions were filed on September 9, 1999 and reply comments were filed on September 24, 1999. Comments were filed by Pacific, MCI, Roseville, and ORA.

B. Parties' Positions

MCI argues that ILECs, including Pacific, are required to provide CLECs the same access to directory listing equivalent to that which the ILEC provides to itself. To the extent this "equivalency" is not provided, CLECs such as MCI are disadvantaged. In the instance of the provisioning of nationwide DA service, MCI claims it is disadvantaged in relation to Pacific because MCI must take extraordinary efforts to gain access to complete DA listings while Pacific is afforded this information as a result of its position as the ILEC. MCI argues that this is exactly the competitive disadvantage the Act prohibits.

The existence of alternative sources of listings data is irrelevant to the ILECs obligation under the Act. On this basis, MCI argues that the Commission must order Pacific to provide its competitors with equal access to its directory listing. This is particularly important due to Pacific's introduction of its own nationwide directory listing service. MCI claims that Pacific continues to enjoy a competitive advantage in the access to directory listings in direct conflict with this Commission's procompetitive goals encouraging the development of local competition in California.

Pacific disputes that competitors are being denied access to its database. Pacific provides competitors access to 100% of its own database and to listing information authorized to be disclosed by CLECs. Pacific's DA listings are available from its DALIS tariff, and is available to CLECs through interconnection agreements. Both federal regulation and California statute prohibit the release of nonpublished DA listings. D.97-01-042 prohibits the release of CLEC directory-listing information to third party publishers or DA providers absent the express consent of the CLEC and mutually agreeable compensation to the CLEC. Pacific cites 47 CFR 51.217 and Pub. Util. Code § 2891.1(a) which prohibit the release of nonpublished listings to third parties. Pacific claims that nothing prohibits competitors from requesting DA listings from any LEC or CLEC. A number of companies sell DA listings. Pacific denies that it is swapping directory assistance listings with GTEC. Pacific states that GTEC is purchasing and exchanging DA listings with Pacific pursuant to an agreement which prohibits the release of the information. Pacific adds that Southwestern Bell Telephone Company obtains its directory assistance listings from Nortel, not Pacific. Pacific has a contract with Nortel to obtain DA listings.

C. Discussion

We find no basis to require Pacific to make available to third parties directory listings data that is queried from a national directory listing service. MCI, in this proceeding, is only asking for a complete database listing for California consumers. MCI presumably seeks the California portion of the Nortel nationwide database. Yet, the Nortel national listings, including the portion covering California, do not reside in Pacific's database. They are available to Pacific only on a query-by-query basis. Thus, Pacific cannot reasonably be ordered to release listing data of a nationwide vendor to third parties which is not contained in Pacific's own database, and over which it has no independent proprietary rights.

In any event, the directory listing database provided by Pacific to other carriers should already be complete, presuming it includes the same listing information provided by CLECs and Independent Telephone companies (ITCs) that Pacific includes in its own database from which it provides DA service. Any additional or updated information that Pacific may obtain from Nortel or any other nationwide directory service on a query basis doesn't provide any competitive advantage to Pacific compared with any other carrier that purchases the same or comparable query service.

MCI claims that Pacific somehow has greater access to the provisioning of nationwide DA service because of its status as an ILEC. MCI, however, fails to show that it is competitively disadvantaged in any way merely because Pacific is not required to make available to MCI the listings information obtained from Nortel on query-by-query basis. We find no evidence that Pacific's status as an ILEC somehow gives it an advantage in its ability to purchase nationwide directory service from Nortel. MCI does not deny that it has the potential to obtain listings data from Nortel independently from Pacific. In fact, Nortel has previously approached MCI concerning the provisioning of directory listings, but MCI made the decision not to use Nortel's service, claiming it did not meet MCI's standards. Therefore, since MCI has already rejected the opportunity to obtain service from Nortel, we find no basis to conclude that MCI is unfairly disadvantaged by not being able to indirectly obtain Nortel data through Pacific.

MCI argues that Pacific is required to provide other carriers with the directory listing information queried from Nortel on the basis of FCC requirements to provide directory listings to competitors that is equal in quality to the access that the ILEC provides to itself. Yet, nothing in the FCC rules require this Commission to order Pacific to provide nonlocal directory data. The FCC has merely solicited comments on this issue in its Notice of Proposed Rulemaking, questioning whether nonlocal data obtained on a query basis by an ILEC from third parties can likewise be obtained by competitors on similar terms. Although parties were permitted to address this issue within the comments in this proceeding, no party provided evidence that competitors are precluded from obtaining such data independently of the ILEC. By contrast, Pacific provided information concerning a number of competitive database vendors from whom competitors can purchase query service in a similar fashion to that which Pacific uses.

Pacific's complete database is provided by requiring it to release the listings data of other CLECs and ITCs that are included in its own database pursuant to obtaining appropriate consent from such carriers as discussed above. Our disposition of this issue is consistent with the manner in which the FCC resolved access to directory listings by directory publishers as mandated by 47 USC § 222(e). The FCC Order states: "...a carrier need not provide subscriber list information to requesting directory publishers pursuant to that section unless the carrier `gathered' that information `in its capacity as a provider of [telephone exchange] service." Similarly in this situation, the queries made by Pacific of the nationwide directory service were not "gathered" in connection with its provision of telephone service as an ILEC. Thus, we find no compelling reason to require Pacific to provide such information to competitors where there is no evidence that Pacific's incumbent status gives it any superior access to such information.