WSR 13-09-051

PERMANENT RULES

UTILITIES AND TRANSPORTATION

COMMISSION

[ Docket UT-120451, General Order R-570 -- Filed April 16, 2013, 8:08 a.m. , effective May 17, 2013 ]

In the matter of amending and adopting WAC 480-150-251 relating to directory service.

1 STATUTORY OR OTHER AUTHORITY: The Washington utilities and transportation commission (commission) takes this action under Notice No. WSR 13-06-026, filed with the code reviser on February 27, 2013. The commission has authority to take this action pursuant to RCW 80.01.040 and 80.04.160.

2 STATEMENT OF COMPLIANCE: This proceeding complies with the Administrative Procedure Act (chapter 34.05 RCW), the State Register Act (chapter 34.08 RCW), the State Environmental Policy Act of 1971 (chapter 43.21C RCW), and the Regulatory Fairness Act (chapter 19.85 RCW).

3 DATE OF ADOPTION: The commission adopts this rule on the date this order is entered.

4 CONCISE STATEMENT OF PURPOSE AND EFFECT OF THE RULE: RCW 34.05.325(6) requires the commission to prepare and publish a concise explanatory statement about an adopted rule. The statement must identify the commission's reasons for adopting the rule, describe the differences between the version of the proposed rules published in the register and the rules adopted (other than editing changes), summarize the comments received regarding the proposed rule changes, and state the commission's responses to the comments reflecting the commission's consideration of them.

5 The commission amends WAC 480-120-251 to require only that local exchange carriers make basic directory listings available to their local exchange customers by providing those customers with access to electronic listings and making printed directories available to customers who request them. If a carrier chooses to distribute printed directors to all customers, the carrier may not distribute a directory to customers who request not to receive them. There are no differences between the text of the proposed rule as published in the register at WSR 13-06-026 and the text of the rule adopted. The commission designates the discussion in this order, including appendices, as its concise explanatory statement.

6 REFERENCE TO AFFECTED RULES: This order amends WAC 480-120-251 Directory service.

7 PREPROPOSAL STATEMENT OF INQUIRY AND ACTIONS THEREUNDER: The commission filed a preproposal statement of inquiry (CR-101) on April 18, 2012, at WSR 12-09-084. The statement advised interested persons that the commission was considering entering a rule making to modify or eliminate the requirement that local exchange companies provide each customer a cop of a telephone director for the customer's exchange area, as described in WAC 480-120-251. The commission also informed persons of this inquiry by providing notice of the subject and the CR-101 to everyone on the commission's lists of persons requesting such information pursuant to RCW 34.05.320(3) and by sending notice to all registered telecommunications companies, the commission's list of telecommunications attorneys, and the list for all persons interested in rule-making dockets. The commission posted the relevant rule-making information on its internet web site at http://www.utc.wa.gov/120451. Pursuant to the notice, the commission received written comments.

8 NOTICE OF PROPOSED RULE MAKING: The commission filed a notice of proposed rule making (CR-102) on July 18, 2012, at WSR 12-15-070. The commission scheduled this matter for oral comment and adoption under Notice No. WSR 12-15-070 at 9:30 a.m., Wednesday, September 12, 2012, in the Commission's Hearing Room, Second Floor, Richard Hemstad Building, 1300 South Evergreen Park Drive S.W., Olympia, WA. The notice provided interested persons the opportunity to submit written comments to the commission.

9 CONTINUED NOTICE OF PROPOSED RULE MAKING: The commission filed a continuance of the CR-102 on August 24, 2012, at WSR 12-18-018. The commission rescheduled this matter for oral comment and adoption under Notice No. WSR 12-18-018 at 9:30 a.m., Thursday, October 18, 2012, in the Commission's Hearing Room, Second Floor, Richard Hemstad Building, 1300 South Evergreen Park Drive S.W., Olympia, WA. The notice provided interested persons the opportunity to submit written comments to the commission. The comments that the commission received raised issues that merited further discussion before it considered adopting revisions to the existing rule.

10 WORKSHOP: On October 12, 2012, the commission issued a notice to all interested persons in this rule making converting the previously scheduled adoption hearing of October 18, 2012, to a stakeholder workshop. The workshop was held on October 18, 2012, in the Commission's Hearing Room, Second Floor, Richard Hemstad Building, 1300 South Evergreen Park Drive S.W., Olympia, WA. Participants in the workshop included Dex One Corporation; the City of Seattle Public Utilities (City of Seattle); the Washington Independent Telephone Association (WITA); Toledo Telephone; Frontier Communications Northwest Inc. (Frontier); CenturyTel; the public counsel section of the Washington state attorney general's office (public counsel); and the Broadband Communications Association.

11 NOTICE OF SUPPLEMENTAL PROPOSED RULE MAKING: The commission filed a supplemental CR-102 notice to WSR 12-18-018 on December 18, 2012, at WSR 13-01-068. The commission scheduled this matter for oral comment and adoption under Notice No. WSR 13-01-068 at 1:30 p.m., Thursday, February 14, 2013, in the Commission's Hearing Room, Second Floor, Richard Hemstad Building, 1300 South Evergreen Park Drive S.W., Olympia, WA. The notice provided interested persons the opportunity to submit written comments to the commission.

12 WRITTEN COMMENTS: The commission received written comments from Dex One Corporation, CenturyLink, Frontier, WITA, Public Counsel, City of Seattle, Sightline Institute, and Jeannette Henderson. Summaries of all written comments and commission responses are contained in Appendix A, shown below, and made part of, this order.

13 RULE-MAKING HEARING: The commission considered the proposed rule for adoption at a rule-making hearing on February 14, 2013, before Chairman Jeffrey D. Goltz and Commissioner Philip B. Jones. The commission heard oral comments from Lisa Anderl, representing CenturyLink, Carl Gipson, representing Frontier, Dick Lilly, representing the City of Seattle, Brooks Harlow, representing Dex One, and Lisa Gafken, representing public counsel, all of whom reiterated their prior written comments.

14 NOTICE OF SECOND SUPPLEMENTAL PROPOSED RULE MAKING: The commission filed a supplemental CR-102 notice to WSR 13-01-068 on February 27, 2013, at WSR 13-06-026. The commission scheduled this matter for oral comment and adoption under Notice No. WSR 13-06-026 at 1:30 p.m., Thursday, April 11, 2013, in the Commission's Hearing Room, Second Floor, Richard Hemstad Building, 1300 South Evergreen Park Drive S.W., Olympia, WA. The notice provided interested persons the opportunity to submit written comments to the commission.

15 WRITTEN COMMENTS: The commission received written comments from Dex One Corporation, CenturyLink, Frontier, WITA, Public Counsel, City of Seattle, and Jeannette Henderson. Summaries of all written comments and commission responses are contained in Appendix A, shown below, and made part of, this order.

16 RULE-MAKING HEARING: The commission considered the proposed rule for adoption at a rule-making hearing on April 11, 2013, before Chairman David W. Danner, and Commissioner Jeffrey D. Goltz. The commission heard oral comments from Richard Finnigan, representing WITA, Brooks Harlow, representing Dex One, Dick Lilly, representing the City of Seattle, and Lisa Anderl, representing CenturyLink, all of whom reiterated their prior written comments.

17 SUGGESTIONS FOR CHANGE THAT ARE ACCEPTED OR REJECTED: Written and oral comments suggested changes to the proposed rule. Several commenters expressed concern that the rule as drafted could be interpreted to require a local exchange carrier (LEC) to make directory listings available for other companies' customers located within the same local calling area, potentially preventing the LEC from complying with the rule if those other companies refuse to share their listing information. The language and intent of the rule do not support such an interpretation. The rule requires only that an LEC make accessible to its customers the directory listings of the LEC's customers. An LEC's inclusion in its directory of listings for other carriers' customers is a matter of separate legal obligations or agreement between carriers.1


1 Incumbent local exchange carriers, for example, have obligations under interconnection agreements with competing local exchange carriers to include the competitor's customer's listings in the incumbent's directory.

18 The commission also notes that the rule does not prohibit LECs from widely distributing printed directories except to those customers who request not to receive them, despite concerns with the environmental impact of such distribution. The commission shares these concerns. Subsection (3) of the rule, however, represents an acknowledgment of the First Amendment rights of LECs to engage in commercial speech2, balanced against the rights of their customers not to receive such speech, and reflects the commission's expectation that LECs likely will not incur the costs to distribute printed directories to all of their customers without a legal obligation to do so. The commission nevertheless may revisit this issue if LECs continue to broadly distribute printed directories or if the commission receives complaints from consumers concerning receipt of unwanted directories.


2 See Dex Media West, Inc. v. City of Seattle, 696 F.3d 952 (9th Cir., 2012).


19 The remainder of the suggested changes and the commission's reason for accepting or rejecting the suggested changes are included in the staff response column to the comment matrix included in Appendix A.

20 COMMISSION ACTION: After considering all of the information regarding this proposal, the commission finds and concludes that it should amend and adopt the rule as proposed in the CR-102 at WSR 13-06-026.

21 STATEMENT OF ACTION; STATEMENT OF EFFECTIVE DATE: After reviewing the entire record, the commission determines that WAC 480-120-251 should be amended to read as set forth in Appendix B, as a rule of the Washington utilities and transportation commission, to take effect pursuant to RCW 34.05.380(2) on the thirty-first day after filing with the code reviser.

APPENDIX A

Docket UT-120451

Comment Summary Matrix


February 14, 2013



General Comments
Commenter Comment Staff Position
Jeanette Henderson Proposed rule would be improved if the printed directory option in subsection (2)(b) were opt-in rather than opt-out.


"Otherwise, the proposed rule is an excellent improvement over the existing rule."

Staff believes the revised rule as currently drafted strikes the appropriate balance between company, customer, and environmental concerns and does not recommend accepting this change.
Sightline Institute Represented by Eric de Place In subsection (2), the word "free" should be added, to read, :... free access to directory listings..."


Believes the printed directory option in subsection (2)(b) should be opt-in rather than opt-out.

See first staff position statement above. In addition, inclusion of "free" is unnecessary because the rule already states that access to directory listings is included with local exchange service.
Seattle Public Utilities Represented by Timothy Croll "We urge the Commission to enact the rule amendment as written." Staff agrees.
Frontier Communications Represented by Carl Gipson Existing rule should be eliminated. As an option to eliminating the existing rule, an opt-in rule should be implemented.


"Frontier is largely supportive of the proposed rule..."

See first staff position statement above.
Public Counsel Represented by Lisa Gafken Pleased that the language in subsection (4), related to updating directories no less frequently than every fifteen months, is being retained.


Believes the rule should require saturation distribution of "Blue Pages."

See first and second staff position statements above. In addition, whether to include information in addition to listings in directories should be a decision for the LEC to make.
Believes the rule should state that directories must be provided free of charge.
Believes the consumer rights and responsibilities guide, required in subsection (6) of the existing rule, should continue to be required in the new rule.
WITA Represented by Betty S. Buckley "WITA supports the proposed revisions contained in the Notice and the Supplemental CR-102." Staff agrees.
Century Link Represented by Lisa Anderl Believes the language in subsection (2), which reads:


"An LEC must ensure that each of its basic local exchange service customers has access to directory listings for the customer's local calling area through at least one of the following means:" Should be modified as follows:

Staff does not believe that the language CenturyLink proposes is substantively different than the language in the latest proposed revised rule but would not object to making the suggested change.
"A LEC shall determine how each of its basic local exchange service customers will receive access to directory listings for the customer's local calling area using at least one of the following means:"
Dex One Represented by Brooks Harlow Believes the mandatory opt-out provision is "inconsistent with the First Amendment," however supports the rule as proposed in the supplemental CR-102. Staff disagrees with Dex One's constitutional analysis but otherwise agrees.

Second Supplemental CR-102 Comment Matrix

April 11, 2013



Commenter Comment Staff Position
Jeanette L. Henderson Proposed rule would be improved by removing subsection (3). Staff believes the revised rule as currently drafted strikes the appropriate balance between company, customer, and environmental concerns and does not recommend accepting this change.
Seattle Public Utilities Represented by Timothy Croll Supports the most recent draft, particularly subsection (2)(a), the opt-in provision.
Century Link Represented by Lisa Anderl The current draft does not allow for the protection of nonpublished customers' information because personal and proprietary information is available to those who use the Dex online web site.


An opt-in approach would result in customers not getting notice that they would not receive a printed phone book.

LECs have the same ability to protect customer privacy under the proposed rule that they have under the existing rule.


The proposed rule does not require an LEC not to publish a printed directory and thus the LEC would be able to provide what it believes is an appropriate phase-out period and notice if the LEC chooses not to publish a printed directory for all of its customers. Similarly, an LEC will not be out of compliance with the rule if it continues to publish a printed directory that combines white and yellow pages.

An opt-in approach should apply only to residential white pages, not business listing in the white pages, so that the company, or Dex, would not be out of compliance if it were to deliver combined white and yellow page business listings.


An opt-in approach should be phased in, with a notice about how a customer can continue to receive directories.

Subsection (2) should be modified so that an LEC is obligated to provide access to listings only for its own customers and customers of carriers who provide their listings at no charge.
Public Counsel Represented by Lisa A. Gafken No further comments.
WITA Represented by Betty S. Buckley WITA (cont'd) Language in subsection (2) implies that an LEC must be responsible for making "all" directory listings in the local calling area available, rather than just the listings of the LEC's own customers.


There are potential problems in providing electronic listings of other LECs, related to licensing agreements, that could make some listings unavailable or burdensome to obtain.

See first staff position statement above.


CTL, WITA, and Frontier contend that the rule creates an obligation to provide access to directory listings of other LECs' customers. The description of "directory listings" in subsection (1), however, makes clear that an LEC's directory listings include only the LECs' customers, although ILECs remain subject to the obligation to include competitors' listings in their directories under federal law and interconnection agreements. "Exchange area" has no meaning for customers, and customers should have access to the listings within their local calling area.

Does not understand how listings will be handled on situations where an ILEC also conducts CLEC activities in the local calling area.


Recommends subsection (2) be rewritten as follows:

(2) A local exchange company must allow access by the local exchange customers it serves to the publicly available listings for the local exchange company's exchange area by publishing those publicly available listings electronically via a document, database, or link on the local exchange company's web site. A local exchange company is not required to distribute a printed directory.
Dex One Represented by Brooks Harlow Supports the rule as drafted and urges prompt approval.
Frontier Communications Represented by Carl Gipson Recommends eliminating the rule altogether, or as an alternative, an opt-in rule.


To eliminate the problem of an LEC being required to provide information that is unavailable, Frontier recommends the following language amendment:


(2) An LEC must ensure that its basic local exchange service customers have access to directory listings for the of its customers' local calling area by making those listings available electronically via a document, data base, or link on the LEC's web site. The LEC also must distribute or arrange to distribute printed directory listings to all of the LEC's customers who request a printed directory. An LEC is not otherwise required to distribute a printed directory.

See staff position statements above.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 1, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 1, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.

ORDER


22 THE COMMISSION ORDERS:

23 The commission amends WAC 480-120-251 to read as set forth in Appendix B, as a rule of the Washington utilities and transportation commission, to take effect on the thirty-first day after the date of filing with the code reviser pursuant to RCW 34.05.380(2).

24 This order and the rule set out below, after being recorded in the register of the Washington utilities and transportation commission, shall be forwarded to the code reviser for filing pursuant to chapters 80.01 and 34.05 RCW and 1-21 WAC.

DATED at Olympia, Washington, April 16, 2013.

Washington Utilities and Transportation Commission

David W. Danner, Chairman

Philip B. Jones, Commissioner

Jeffrey D. Goltz, Commissioner

APPENDIX B

OTS-4885.5


AMENDATORY SECTION(Amending Docket No. UT-990146, General Order No. R-507, filed 12/12/02, effective 7/1/03)

WAC 480-120-251   Directory ((service)) listings.   (((1) A local exchange company (LEC) must ensure that a telephone directory is regularly published for each local exchange it serves, listing the name, address (unless omission is requested), and primary telephone number for each customer who can be called in that local exchange and for whom subscriber list information has been provided.

(2) Any residential customer may request from the LEC a dual-name primary directory listing that contains, in addition to the customer's surname, the customer's given name or initials (or combination thereof) and either one other person with the same surname who resides at the same address or a second name, other than surname, by which the customer is also known, including the married name of a person whose spouse is deceased.

(3) A LEC must provide each customer a copy of the directory for the customer's local exchange area. If the directory provided for in subsection (1) of this section does not include the published listing of all exchanges within the customer's local calling area, the LEC must, upon request, provide at no charge a copy of the directory or directories that contain the published listing for the entire local calling area.

(4) Telephone directories published at the direction of a LEC must be revised at least once every fifteen months, except when it is known that impending service changes require rescheduling of directory revision dates. To keep directories correct and up to date, companies may revise the directories more often than specified.

(5) Each LEC that publishes a directory, or contracts for the publication of a directory, must print an informational listing (LEC name and telephone number) when one is requested by any other LEC providing service in the area covered by the directory. The LEC to whom the request is made may impose reasonable requirements on the timing and format of informational listings, provided that these requirements do not discriminate between LECs.

(6) Telephone directories published at the direction of the LEC must include a consumer information guide that details the rights and responsibilities of its customer. The guide must describe the:

(a) Process for establishing credit and determining the need and amount for deposits;

(b) Procedure by which a bill becomes delinquent;

(c) Steps that must be taken by the company to disconnect service;

(d) Washington telephone assistance program (WTAP);

(e) Federal enhanced tribal lifeline program, if applicable; and

(f) Right of the customer to pursue any dispute with the company, including the appropriate procedures within the company and then to the commission by informal or formal complaint.)) (1) Basic local exchange service includes access to directory listings comprised of the name, address, and primary telephone number for each customer that the local exchange company (LEC) serves in a local calling area unless the customer requests to exclude some or all of this information from the LEC's directory listings.

(2) A LEC must ensure that its basic local exchange service customers have access to directory listings for the customers' local calling area by making those listings available electronically via a document, data base, or link on the LEC's web site. The LEC also must distribute or arrange to distribute printed directory listings to all of the LEC's customers who request a printed directory. A LEC is not otherwise required to distribute a printed directory.

(3) If the LEC distributes or arranges for a third-party to distribute printed directory listings to the LEC's customers who have not requested a printed directory, the LEC must not distribute or arrange to distribute printed directory listings to any customer who requests not to receive a printed directory.

(4) A LEC must establish or arrange for reasonable means for its customers to request to exclude some or all of their information from the LEC's directory listings and to request to receive, or not to receive, a printed directory.

(5) The directory listings must be updated no less frequently than every fifteen months.

[Statutory Authority: RCW 80.01.040 and 80.04.106. 03-01-065 (Docket No. UT-990146, General Order No. R-507), 480-120-251, filed 12/12/02, effective 7/1/03.]