MCCAIN, POWELL CAST DOUBT ON SUCCESS OF LNP CHALLENGES

Meanwhile, Qwest said Wed. it wouldn’t challenge the FCC’s wireline-to-wireless LNP rules, Senior Vp-Public Policy Steve Davis said, “even though we still strongly believe it’s a disservice to customers who deserve the right to take their telephone number to any service provider they choose.” He said Qwest backed wireless-to-wireless LNP rules and “we also will be prepared to begin porting wireline-to-wireless numbers, to the extent there is any customer demand.” He said the company would “immediately begin investigating” ways to allow customers to port a wireless number to a Qwest landline phone.

McCain described prospects as dim for an 11th hour legislative push to delay the Mon. deadline for wireless LNP in the top 100 markets, but acknowledged that “anything can happen” in the waning hours of a session. At a Hill briefing with Sen. Schumer (D-N.Y.) and Powell, McCain acknowledged rumors of efforts for a possible delay had been “swirling” in the last few months. “It appears that such attempts have been unsuccessful,” he said, “but we will continue to keep a watch as this session comes to a close.”

“The FCC is no stranger to having those who fear competition challenge rules,” Powell told reporters: “I can’t even imagine a legal claim that one way or another we wouldn’t be able to overcome -- either the Commission in court or with the assistance of our colleagues on the Hill… I am disappointed if anybody pursues that course. I think that’s a course that’s perhaps good for their shareholders but bad for their customers.” On the USTA-CenturyTel petition for a stay on the wireline-to-wireless LNP rules, Powell noted the Commission had just decided on those requirements. “It would have to be a pretty compelling case for the Commission to reconsider any aspects of it,” he said. While Powell said he couldn’t speak for the other 4 members of the Commission, he said he expected it would take up the petition quickly to eliminate uncertainty in the face of the Nov. 24 deadline.

At the briefing, Schumer lauded Powell’s efforts to “stand up” to pressure to delay the deadline. He also warned that cellphone companies were making last-ditch efforts to lock customers into long-term contracts before the new rules took effect. “It may seem like good new cellphone offers are raining down on you today, but when the cellphone companies face real competition next month, it’s going to be like Niagara Falls,” he said.

The USTA-CenturyTel petition said customers could transfer wireline numbers to wireless carriers under the rules, but LECs wouldn’t be able to compete the other way for customers now served by wireless carriers. “Real competition is a 2-way street,” USTA Pres. Walter McCormick said: “This is government-managed competition at its worst.” USTA said the rules, adopted this month, put the FCC in the role of a “traffic cop” by directing consumers away from wireline companies and toward mobile operators, meaning LECs couldn’t compete on an equal footing.

The FCC’s Nov. 10 wireline-to-wireless LNP order directed wireline carriers to port numbers to wireless carriers whose coverage area overlapped the rate center in which the wireline number was assigned as long as the mobile carrier kept the original rate center designation. The Commission said wireless carriers didn’t have to negotiate interconnection agreements with LECs, a condition sought by some wireline companies. The FCC limited the porting of wireless to wireline numbers to within a rate center until certain questions were answered in a further notice.

The petition for a stay said the FCC order was “procedurally improper and substantively inequitable.” It said that in 1997, the Commission had asked the N. American Numbering Council (NANC) to resolve intermodal portability issues, but it didn’t do so, instead seeking more guidance from the FCC. “Instead of providing that guidance, and without issuing a notice of proposed rulemaking to alert the industry that the process the Commission had established would be abandoned, the Commission simply adopted a new rule,” the petition said. The rule is a break from past FCC policy because it requires number portability even when the subscriber’s location changes, USTA and CenturyTel said.

The petition stressed the competitive disadvantage the FCC had placed on wireline carriers: “It permits wireless carriers to port the numbers of, and thereby compete for, wireline customers, even if the wireless carriers have neither number resources nor a point of interconnection within the rate center to which the numbers are assigned. At the same time, it prevents wireline carriers from competing for the wireless carriers’ customers in those same circumstances.” The petition said the FCC hadn’t follow the strictures of the Administrative Procedure Act because it hadn’t adopted a notice of proposed rulemaking before voting for the new rules.

Meanwhile, the Direct Mktg. Assn. (DMA) this week asked the FCC to rule that autodialer calls that terminated at a wireless number as a result of a consumer’s having switched a landline number to a mobile service shouldn’t be covered under current proscriptions for autodialer calls from telemarketers. The Telephone Consumer Protection Act (TCPA) generally bars the use of an autodialer to place phone solicitation calls to a wireless number. But the DMA said that issue wasn’t fully addressed in the Commission’s recent wireline-to-wireless LNP order. DMA said that instead, the FCC said there were different solutions that would allow telemarketers to identify wireless numbers that had been ported from a landline phone.

DMA said it had been unable to gain access to data from NeuStar that would allow telemarketers to determine that a wireline number had been ported to a wireless service to enable suppression of calls to such numbers. DMA said NeuStar was the only centralized source of such data and “without this information, it will be impossible for telemarketers to timely and reliably identify and suppress calls to wireless numbers ported from wireline number service.” While DMA said its list of wireless numbers for which autodialing must be suppressed remained active, that didn’t address the issue of intermodal porting. “The FCC noted in its report and order that ’telemarketing to wireless phones is not a significant problem,'” DMA said: “This is a serious concern for DMA and its members as millions of wireline customers are expected to port to wireless.” DMA said it was asking that the FCC declare that violations of the TCPA “that will undoubtedly occur” as a result of intermodal porting would not be “actionable” until further notice.

FCC officials have said that generally wireless subscribers who port their numbers are protected in 2 ways from telemarketing calls: (1) If a wireline number is listed on the do-not-call list, that number remains on the list when it ports to a wireless plan. (Wireless subscribers also can have their mobile numbers placed on the do-not-call list, regardless of whether they port). (2) The TCPA bars telemarketers from using autodialers to call wireless phones, the theory being that wireless subscribers must pay for incoming calls themselves. Asked about the DMA letter, an FCC official said: “This is something we will probably look at trying to resolve so consumers don’t get unwanted telemarketing calls on their phones.”

OPASTCO and NTCA wrote to Capitol Hill Wed. urging “immediate action” to postpone all aspects of the wireline- to-wireless LNP order as it applied to rural ILECs. “Indeed, in the past few weeks the FCC has adopted 2 far-reaching orders to ‘provide guidance’ on the subject of porting telephone numbers to wireless carriers,” said OPASTCO Pres. John Rose and NTCA Pres. John Brunner. “Unfortunately, the orders are largely devoid of any real direction and in reality amount to yet another in a long series of mandates with adverse consumer implications the Commission has grown fond of imposing on the ILEC industry.” OPASTCO and NTCA said the order fell short of providing relief for small rural ILECs by giving a temporary exemption from full compliance until May 24 if their study area fell outside the top 100 U.S. markets. That means that a significant number of rural ILECs still would be covered because their study areas were within those top markets, the groups said. “The Commission’s rules force rural ILECs to port to wireless carriers, even though subscribers of the wireless carriers will be unable to port their numbers to ILECs.”

CTIA said that if the USTA stay request were granted, “millions of Americans” would lose the ability to switch their landline or wireless numbers to a new mobile operator. “In order to serve consumers well, the FCC has made clear that both modes of number portability must happen at the same time -- among wireless carriers and from wireline to wireless,” CTIA Pres. Steve Largent said. “The landline companies waited until the eleventh hour to file a petition, and changing the rules now would cause widespread confusion.”

NARUC Pres. Stan Wise stressed the importance of making the rollout of LNP as smooth as possible: “As with most technical issues, the logistics of a smooth rollout are squarely in the hands of industry. It is not like they haven’t had adequate notice. They've been aware of the impending regulatory requirement to roll out LNP for about 6 years.”

At the Hill briefing, Consumers Union Pres. James Guest said the Nov. 24 deadline for LNP “marks a critical consumer victory for cellphone customers who should now expect more for less.” He warned that anyone immediately switching carriers or cutting the cord on their wireline service should expect “that their switch may take a little longer as the industry copes with the volume of customers trying to move carriers.”