Washington, DC US - Washington, DC January 6, 1998 (ICB TOLL FREE NEWS) In one of the most compelling petitions file to date, the Office of Advocacy of the U.S. Small Business Administration filed an Exparte Petition for Reconsideration of the Second Report and Order for Toll Free Service Access Codes, on December 12, 1997.
The Office of Advocacy was established by Congress in 1976 to represent the views and interests of small business with the federal government. Its statutory duties include reviewing federal government policies and regulations that affect small business, developing proposals for changes in federal agencies’ policies, and communicating those proposals to the agencies.
The Office also has a statutory duty to monitor and report on the FCC’s compliance with the Regulatory Flexibility Act of 1980, which factors substantially in this petition. The petition details “the tremendous economic impact on small businesses that this Second Report and Order will impose. Most importantly, these comments also detail the material flaws in the Second Report and Order’s Final Regulatory Flexibility Analysis.”
Among its admonishments, the SBA specifies that the FCC
1. failed to provide proper public notice of a proposed rule to small business in the Notice of Proposed Rulemaking (NPRM) and the initial Regulatory Flexibility Analysis;
2. finalized a rule that is not a logical outgrowth of the Notice of Proposed Rulemaking (NRPM);
3. failed to identify properly, describe and reasonably estimate the number of all small entities to which these rules will apply;
4. failed to detail all of the compliance requirements that small businesses subject to the rule must undertake;
5. and failed to analyze the impact of its rules on small business end users, and small business toll free providers, especially those engaged in the secondary market.
The petition goes on, “Toll free use also involves the provision of toll free service by entities that are not telecommunications companies... The variety of private entities that also provide access to a toll free number, (either by sale or lease) are loosely classified as the secondary market. The Commission has not explained in the substantive body of the Second Report and Order, nor the FRFA, how the ex post facto finding of illegality for the sale of a toll free number or the possession of multiple toll free numbers, including the provision of forfeitures and criminal sanctions for hoarding and brokering, serves to encourage rapid private sector deployment in all telecommunications markets as envisioned by Congress.
Neither has the Commission fully explained nor justified how the elimination of businesses engaged in the secondary market deplete an allegedly scarce resource and/or does not service the public interest.”
Asserting that the Second Report and Order is in direct contradiction to the congressional intent of the 1996 Act to foster competition in all telecommunications markets, the Advocacy Office characterizes the Second Report and Order as “failing to recognize marketplace realities” and “arbitrary,” and asks the Commission to grant the petitions for an emergency stay of the rule, rescind certain sections of it entirely, and revise other rules in accordance with a Further Notice of Proposed Rulemaking that includes a properly executed Initial Regulatory Flexibility Analysis.
In its reconsideration of the rule, the Advocacy Office recommends that the Commission eliminate the rebuttable presumption that the mere posession of multiple toll free numbers indicates illegal behavior; revise or reclarify its definition of hoarding and brokering to eliminate impermissible vagueness; explicitly exempt all entities that provide "collateral" services such as shared-use, telemarketing, advertising, and marketing consulting services; and adopt protective measures, pursuant to due process, that give the Commission sole enforcement authority of pronouncing illegal behavior and executing a termination policy.
Authurs of the petition are Jere W. Glover, Chief Counsel, and S. Jenell
Trigg, Assistant Chief Counsel for Telecommunications, Office of Advocacy, U.S.
Author/Correspondent's Profile: Judith Oppenheimer, Publisher, ICB Toll Free (800/888) News