[comp.dcom.telecom] FCC / AOS Regulations: Part 2 of 3 {{{ SPECIAL ISSUE }}}

blake@pro-party.cts.com (Blake Farenthold) (04/10/89)

{{{ This is the second of three special issues of the [TELECOM Digest]	}}}
{{{ which are being posted in their original digest format.	-chip	}}}

TELECOM Digest     Sun, 9 Apr 89 01:58:05 CDT    Special: FCC/AOS Regs - II

Today's Topics:                                  Moderator: Patrick Townson

    FCC / AOS Regulations: Part 2 of 3 (Blake Farenthold)
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Date:     Sun, 9 Apr 89 1:27:54 CDT
From:     Blake Farenthold <blake@pro-party.cts.com>
Subject:  FCC's AOS Order (Part 2 of 3)


                                 IV. DISCUSSION

	9.  As an initial matter, we note that the defendant companies are 
resellers as defined in _Competitive Carrier_ ^17 and as such, are classified 
as non-dominant carriers under our current regulatory scheme.  Our decision 
to classify resellers as non-dominant was based on our finding that given the 
low barrier of entry into the resale industry, resale carriers faced more 
actual and potential competition than any other part of the 
telecommunications industry. ^18  The policies adopted in _Competitive 
Carrier_ are intended to enable resellers and other non-dominant carriers to 
respond to the demands of a competitive marketplace without unnecessary 
regulatory constraints.  We deny the complaint to the extent that it requests 
that we depart from the conclusions and policies established in _Competitive 
Carrier_.  The instant complaint, insofar as it seeks the reclassification of 
certain types of resellers, is a request for modification of the Commission's 
rules as developed in the _Competitive Carrier Orders_.  We cannot, of 
course, modify our rules in the context of this complaint proceeding.  In any 
event, consistent with the policies set forth in Competitive Carrier, we are 
satisfied that our complaint process and the remedial actions set forth 
herein fully redress the complainants' grievances.

	10.  We turn next to the issue of alleged unjust and unreasonable 
rates.  The complainants have relied solely on the assertion that the 
defendants' rates are in excess of rates charged by AT&T, the assumed 
underlying carrier. ^19 Complainants have cited no Commission authority to 
support their implicit proposition that a carrier's rates can be found 
"unjust and unreasonable" solely on the basis that they exceed the rates of 
some other carrier.  The quantity and quality of services vary among carriers 
as do their underlying cost structures, all of which could support 
significant differences in rate levels.  Based on the record, we find no 
facts or arguments which would be legally sufficient to sustain a finding 
that the defendants' rates are unjust and unreasonable within the 
contemplation of Section 201 of the Act. ^20

	11.  Finally, we address the complainants' allegations of unjust and 
unreasonable practices on the part of the defendants in their provision of 
AOS services. Part of the rationale underlying the Commission's decision in 
_Competitive Carrier_ to relieve resellers and other non-dominant carriers 
from unnecessary and counterproductive regulatory constraints was the 
recognition that competitive forces in the marketplace would ensure 
compliance with the Communications Act. ^21  The Commission found that, in 
general, carriers with little or no market power were incapable of charging 
rates or engaging in practices which contravene the "just and reasonable" 
requirements of the Act. ^22  In relieving non-dominant carriers from tariff 
filing requirements, the Commission acknowledged that Title II of the Act 
serves as a primary means to ensure that consumers are provided access to 
necessary information and to ensure that the Act's objective of just and 
reasonable rates and practices were met. ^23  The Commission emphasized, 
however, that in the event marketplace forces prove to be inadequate, 
remedial actions as may be necessary to protect the public may be taken. ^24

	12.  Therefore, in addressing complainants' allegations regarding the 
defendants' practices, we place particular importance on those statements in 
the record which describe the nature and level of consumer information that 
the respective defendant companies have provided to their caller/customers.  
We are also aware of the volume of informal complaints the Bureau has 
received that confirm the existence of many of the problems that are at issue 
here. ^25 We are particularly concerned with the current practices of some of 
the defendant AOS companies regarding consumer disclosure, call blocking and 
call splashing.  These practices distort and impede the operation of a fully 
competitive operator services industry.  After consideration of the arguments 
and evidence advanced by the parties to this proceeding, we are persuaded 
that the practice of call blocking, coupled with a failure to provide 
adequate consumer information, is unjust and unreasonable in violation of 
Section 201(b) of the Act.  We recognize that some of the defendant AOS 
companies deny engaging in such practices ^26 and find the record unclear 
with respect to specific practices of each company.  Nevertheless, we will 
require that to the extent that the defendant AOS companies engage in the 
practices we find unreasonable herein, they must adopt certain revised 
procedures with respect to consumer notice and call blocking.  Moreover, 
compliance by any other operator service providers with the requirements set 
forth below will constitute an absolute defense to complaints based on the 
allegations addressed in this Order.

	13.  In order to carry out the policies of the Commission's 
_Competitive Carrier_ decisions and to eliminate the unreasonable practices 
identified above, we order three specific forms of relief.  First, the 
defendant AOS companies must provide consumer information to their customers 
in the form of tent cards, phone stickers, or some other form of printed 
documentation that can be placed on, or in close proximity to, all 
presubscribed phones.  These materials shall set forth the company's identity 
(name, address and a customer service number for receipt of further 
information) as well as information to the effect the company's rates will be 
quoted on customer request.  Contracts with call aggregators must contain 
provisions requiring aggregators to display these materials on, or in close 
proximity to, all presubscribed telephones.  In addition, the defendants must 
amend existing contracts with call aggregators to reflect this requirement.  
The defendants will bear primary responsibility for the implementation of the 
above-specified form of notice, and must make reasonable efforts to assure 
such implementation within sixty (60) days of the effective date of this 
Order.

	14.  Second, we note that at least one of the defendants did not 
specify the degree to which it engages in "call branding". ^27  We find, 
however, that even the best examples of call branding practiced by the 
defendants ^28 convey insufficient information as to the company's identity, 
rates, practices, and range of services.  This gap in consumer information 
thwarts effective consumer choice and creates the opportunity for any AOS 
company to charge excessive rates.  For this reason, we find it an unlawful 
practice for operator services providers not to identify the company before a 
call is connected, including a sufficient delay period to permit a caller to 
hang up and/or advise the operator to transfer the call to the customer's 
preferred carrier.  We order this procedure to be implemented by the 
defendants immediately with the effective date of this Order.

	15.  While the defendant companies, with one exception, ^29 deny that 
they block calls, it is clear from the information available to us that call 
blocking in fact occurs. ^30  Frequently, contracts between an AOS provider 
and its customer provide or permit call blocking by the customer.  We find 
that call blocking of telephones presubscribed to the defendant AOS providers 
or other carriers is an unlawful practice.  Accordingly, we order the 
defendants to discontinue this practice immediately.  The defendants must 
amend their contracts with call aggregators to prohibit call blocking by the 
call aggregator within thirty days of the effective date of this Order. ^31

	16.  Call splashing, the process of indirectly routing a call when a 
caller requests that the call be handled by a different carrier, often 
results in charges that are different than expected because the call has not 
been properly rated.  Since the transferred call is often billed from a point 
other than its originating location, the consumer will often receive a bill 
which appears to be incorrect, either as to the rate charged for the call, or 
the location called from, or both. ^32  While the actual levels of call 
splashing may vary among the five defendants, we are concerned that its 
effects be minimized.  One possible method of addressing this problem is 
identified by Payline in its answer to the complaint.  According to Payline, 
it attempts to absorb any charges itself which result from call splashing. 
^33  Even Payline admits, however, that it has not been able to successfully 
address this problem in many instances. ^34

	17.  The problem of call splashing reflects the technological 
characteristics of the network for which a solution can best be found through 
the cooperation of service providers including the Bell Operating Companies 
and AT&T on an industry-wide basis.  Because we are concerned that this 
practice may have an adverse economic impact on consumers, we are requiring 
the defendant AOS  companies to bring this matter before the Carrier Liaison 
Committee of the Exchange Carrier Standards Association.  We understand that 
both hardware and software problems may need to be addressed in any ultimate 
resolution of this matter and we require the defendants to provide a progress 
report within sixty days.  The defendants are required to eliminate 
immediately any call splashing that is within their technical capability to 
accomplish with their current networks. ^35  The Bureau's Enforcement 
Division will closely monitor progress towards a resolution of this 
networking problem. ^36

                                  V. CONCLUSION

	18.  In sum, we find in this order that the practices identified in 
the paragraphs above, namely, paragraphs 12, 13, 14 and 15 constitute 
unreasonable practices in violation of Section 201(b) of the Communications 
Act.  To remedy these problems, we identify two mechanisms which will assure 
that consumers are properly protected--the identification of the primary 
carrier and related information on or in the vicinity of the telephone and a 
specific identification of the company by the service provider on line prior 
to connecting a call.  Further, we order the defendants to give rate 
information on request to consumers and declare the call blocking practices 
identified in the complaint to be unlawful.  Finally, we have put a mechanism 
in place for dealing with the industry-wide technical problem of call 
splashing. Implementation of the remedies identified herein by any other 
carrier, including AT&T, constitute a defense against similar complaints.

	19. These remedies, taken collectively, should assure that sufficient
 information and options will be made available to consumers in order to 
facilitate informed decisionmaking.  The consumer should be the key 
determinant of which companies in the operator services industry thrive and 
which companies do not succeed.  If the consumer concludes that some or all 
of these companies provide services that they want, the industry will expand 
and be financially sound.  The steps taken in this Order will permit those 
consumer choices to be made soundly and rationally.

	20.  Accordingly, IT IS ORDERED, pursuant to the provisions of 
Sections 4(i), 4(j), 201(b), and 208 of the Communications Act, as amended, 
47 U.S.C. sections 154(i), 154(j), 201(b) and 208, and pursuant to authority 
delegated in Section 0.291 of the Commission Rules, 47 C.F.R. section 0.291, 
that the "Complaint and Petition to Revoke Authority to Operate," filed by 
Telecommunications Research and Action Center and Consumer Action on July 26, 
1988, IS GRANTED TO THE EXTENT INDICATED HEREIN AND DENIED IN ALL OTHER 
RESPECTS.

	21.  IT IS FURTHER ORDERED, that the "Petition to Intervene" filed on 
behalf of the State of Connecticut Office of Consumer Action IS GRANTED.

	22.  IT IS FURTHER ORDERED that the policies and procedures set forth 
and adopted herein shall become effective thirty (30) days from the release 
of this Order.


                                        FEDERAL COMMUNICATIONS COMMISSION

                                        /S/

                                        Gerald Brock
                                        Chief, Common Carrier Bureau

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End of TELECOM Digest Special: FCC/AOS Regs - II
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blake@pro-party.cts.com (Blake Farenthold) (04/10/89)

{{{ This is the last of three special issues of the [TELECOM Digest]	}}}
{{{ which are being posted in their original digest format.	-chip	}}}

TELECOM Digest     Sun, 9 Apr 89 02:12:49 CDT    Special: FCC/AOS Regs - III

Today's Topics:                                  Moderator: Patrick Townson

    FCC / AOS Regulations: Part 3 of 3 (Blake Farenthold)

[Moderator's Note: This concludes the special three part mailing. You should
have received two prior sections, each dated about 30 minutes apart from
me Sunday morning.  Now take the three parts in your editor; cut out this
additional header information, and paste the three parts together and save
them out for reference/reading at your leisure.  PT]
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Date:     Sun, 9 Apr 89 1:29:17 CDT
From:     Blake Farenthold <blake@pro-party.cts.com>
Subject:  FCC's AOS Order - Footnotes (Part 3 of 3)


Footnotes:

1. 	The defendants referred to herein are as follows:  Central Corporation 
	("Central"); International Telecharge, Inc. ("ITI"); National 
	Telephone Services, Inc. ("NTS"); Payline Systems, Inc. ("Payline"); 
	and Telesphere Network, Inc. ("Telesphere").  In addition to 
	defendants' answers, other pleadings filed in this matter include:  a 
	Motion to Respond in Consolidated Manner and Clarify Pleading 
	Schedule, a Motion to File Late Pleading Schedule, a Motion to File 
	Late Pleading, a Reply to Answers to Complaint and Petition to Revoke 
	Authority to Operate, a Motion to File Corrected Copy, and a Corrected 
	Copy of the Reply to Answers to Complaint and Petition to Revoke 
	Authority to Operate filed by TRAC/CA; an Opposition to TRAC/CA's 
	Motion to Reply in Consolidated Manner and Clarify Pleading Schedule, 
	and a Motion to Dismiss filed by Telesphere.  TRAC/CA's Motions were 
	granted on September 13, 1988. _Order_, DA 88-1432.  Finally, the 
	State of Connecticut Office of Consumer Counsel filed a Petition to 
	Intervene on August 31, 1988 for the purpose of monitoring the 
	proceeding.  We grant the motion.

2. 	As the AOS industry has grown, some participants have objected to the 
	term "alternative" since it implies, they argue, that their companies 
	are defined only in the context of being an alternative to AT&T.  In 
	response, they have urged the substitution of the acronym "OSP" (for 
	"operator service provider") for AOS.  While noting the concerns of 
	those members of the industry who prefer the term "OSP" industry, the 
	more prevalent AOS acronym will be used in this proceeding.

3. 	AOS providers may also provide operator services for other 
	interexchange carriers under contract.

4.	While the complaints only address "O+" calls, the issues and remedies 
	are equally applicable to "1+" calls, which include calls from coin 
	operated telephones which are paid in cash, so-called "sent paid" 
	telephone calls.

5. 	Call splashing occurs when a caller requests a transfer from an AOS 
	company operator to his preferred interexchange carrier.  Since the 
	call is handed off to the preferred carrier in the city where the AOS 
	company's operations center and switch are located, the point from 
	which the call will be billed will often be different from the 
	caller's originating location, and the call may be billed at a rate 
	different than the caller may have anticipated.

6. 	Call blocking refers to the process of screening the calls dialed from 
	the presubscribed telephone for certain predetermined numbers, and 
	preventing or "blocking" the completion of calls which would allow the 
	caller to reach a long distance telephone company different from the 
	AOS company.

7. 	_Policy and Rules Concerning Rates for Competitive Common Carrier 
	Services and Facilities Authorization_:  _Notice of Inquiry and P
	roposed Rulemaking_, 77 FCC2d 308 (1979) ("_Notice_"); _First Report 
	and Order_, 85 FCC2d 1 (1980) ("First Competitive Carrier Order"); 
	_Further Notice of Proposed Rulemaking_, 84 FCC2d 445 (1981) 
	("_Further Notice_"); _Second Report and Order_, 91 FCC2d 59 (1982) 
	("_Second Competitive Carrier Report_"), _recon. denied_, 93 FCC2d 59 
	(1983); _Fourth Report and Order_, 95 FCC2d 55 (1983) ("_Fourth 
	Competitive Carrier Order_"); _Fifth Report and Order, 98 FCC2d 119 
	(1984) ("_Fifth Competitive Carrier Order_"); _Sixth Report and 
	Order_, 99 FCC2d 1020 _vacated and remanded sub nom._, MCI v. FCC, 765 
	F.2d 1186 (D.C.Cir.1985).

8.	Section 214 provides in pertinent part:

		No carrier shall undertake the construction of a new line or of 
		an extension of any line, or shall acquire or operate any line, 
		or extension thereof, or shall engage in transmission over or 
		by means of such additional or extended line, unless and until 
		there shall first have been obtained from the Commission a 
		certificate that the present or future public convenience and 
		necessity require or will require the construction, or oper-
		ation, or construction and operation, of such additional or 
		extended line.

9.	_First Competitive Carrier Order_ at 21.

10.	Section 201(b) provides that:
	All charges, practices, classifications, and regulations for and in 
	connection with such communications service shall be just and 
	reasonable, and any such charge, practice, classification, or 
	regulation that is unjust or unreasonable is hereby declared to be 
	unlawful.

11.	_Complaint_ at para. 15.

12.	The Complainants maintain that any suggestion that the informed 
	consumer can find another telephone is not feasible.  The Complainants 
	state that it is virtually impossible for many consumers (hospitalized 
	patients, college students in a dorm where all telephones are 
	presubscribed to the AOS service, etc.) to gain access to a non-
	presubscribed telephone.  Complaint at para. 22.

13.	_See_, _e.g._, ITT Answer at 16-17, Appendix A at pp. 20-21; Payline 
	Answer at 13; Telesphere Answer at 14; NTS Answer at 16.

14.	_See_, _e.g._, Central Answer at 5; Telesphere Answer at 5-6; ITT 
	Answer at 7, 19; Payline Answer at 15.

15.	NTS Answer at 11-12; Payline Answer at 17-19; ITT Answer at 20-21; 
	Central Answer at 4-5.

16.	Central makes the additional claim that it is a carrier described in 
	Section 2(b)(2) of the Communications Act, 47 U.S.C. section 152(b), 
	and as such, is not subject to the Commission's Section 208 complaint 
	procedures.  No support is provided for their claim that they are a 
	2(b)(2) carrier and we find it to be without merit.

17.	The _Second Competitive Order_ defines resellers as those carriers 
	which do not own any transmission facilities but obtain basic 
	communications services from underlying carriers for resale purposes.  
	91 FCC2d at 70.

18. 	_First Competitive Carrier Order_ at 29.

19.	We note that complainants have not placed any specific information 
	into the record regarding the identification of underlying carriers, 
	but have assumed in most cases that it is AT&T.

20.	Contrary to complainants' contention, the Commission did not establish 
	a standard in the _Second Competitive Carrier Order_ which requires 
	that resellers price their services at a level no higher than the 
	underlying carrier's rates. Rather, the Commission noted that the 
	underlying carrier's rates, which are constrained by Sections 201-205 
	of the Act, would effectively discipline a reseller's rates because, 
	if "a reseller were to set its price above the rates of the underlying 
	carrier or competing carriers, its customers would be expected to 
	migrate to these other services."  _Second Competitive Carrier Order_ 
	at 69.  We find that the basis of the "AOS problem" is not their rates 
	per se, but the practices involving lack of notice and blocking that 
	restrict a customer's ability to "migrate to these other services [of 
	competing carriers]", as we contemplated in the Competitive Carrier 
	proceeding.  It is these restrictive practices that we proscribe in 
	this Order.

21.	_First Competitive Carrier Order_ at 20.

22.	_Id_.

23.	_Second Competitive Carrier Order_ at 70-71.  Section 203(a) of the 
	Act requires common carriers, with limited exceptions, "to file and 
	keep open for public inspection" schedules showing all charges for 
	interstate and foreign wire or radio communications.

24.	_Id_. at 70.

25.	The Bureau's Informal Complaints and Public Inquiries Branch has 
	received approximately two thousand complaints and inquiries regarding 
	AOS rates and practices since January 1988.

26.	_See_, _e.g._, Central Answer at 5; ITI Answer at 5.

27.	_See_ Central Answer at 5.  Branding is the process or procedure used 
by 	a carrier, in this case the AOS provider, to identify itself to every 
	person who uses its service.

28.	See _e.g._, Payline Answer at 22; Telesphere Answer at 18.

29.	_See_, NTS Answer at 20.

30.	_See_, _e.g._, Telesphere's Answer at 14, where Telesphere states that 
	Telesphere "does not control the handling of calls by call 
	aggregators" and NTS' Answer at 16, where NTS states that "it does not 
	block calls that reach its network" and that it "does not request or 
	require call aggregators that are its customers to block calls made to 
	other carriers and divert them to NTS."

31.	We note that some companies claim to use call blocking to prevent 
	fraudulent use of the network.  Companies who wish to argue that such 
	blocking should be permitted are free to seek a waiver of the "no 
	blocking" requirement accompanied by the requisite showing that such a 
	waiver is warranted.  Absent the grant of such a waiver, companies may 
	not engage in blocking.

32.	See, NTS Answer at 18.

33.	Payline Answer at 17-19.

34.	Payline Answer at 19.

35.	We note that NTS filed with the Commission a petition seeking a 
	Commission declaration that AT&T be required to establish through 
	rates for transferred calls and a division of charges as a solution to 
	call splashing.  _See_ "Petition for Order to Require AT&T to 
	Establish a Through Rate and Reasonable Division of Charges," File No. 
	ENF-89-02, filed November 15, 1988.  We are in no way prejudging our 
	review of the positions set forth in that proceeding.

36.	Many of the problems associated with call splashing may be eliminated 
	when call blocking ceases, since customers will be able to dial their 
	carrier of choice directly.
                      =================================

[Moderator's Note: All the thanks for this effort belong to Blake, who can
be contacted at the addresses below if you wish to drop a note of thanks
to his attention.  PT]

ty!blake
ARPA: crash!pnet01!pro-party!blake@nosc.mil
INET: blake@pro-party.cts.com

Blake Farenthold        | CIS: 70070,521        | Source: TCX023
P.O. Box 17442          | MCI: BFARENTHOLD      |  GEnie: BLAKE
San Antonio, TX 78217   | BBS: 512/829-1027     | Delphi: BLAKE

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End of TELECOM Digest Special: FCC/AOS Regs - III
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