ORIGINAL
BEFORE THE
FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554
In the Matter of
Toll Free Service Access Codes
TO: The Chief,
Common Carrier Bureau
Federal Communications Commission
CC Docket No. 95-155
DOCKET FILE COpy ORIGINAL
RECEI\lED
FEB 29 1996
FEDEFVU. COMMUNICATIONS CUMMISS:OM
OfFICE OF SECRETARY
EMERGENCY PETITION FOR SPECIAL RELIEF
Ann C. Farhat, Esquire
Bechtel & Cole, Chartered
1901 L Street, N.W.
Suite 250
Washington, D.C. 20036
202/833-4190
Counsel for Vanity
International and
Genesis Two, Inc.
February 29, 1996
No. 01 Copies "",'d(}J (\
List ABCDE
Summary ..
Background
Standing
Argument
Relief Requested
Conclusion . . .
TABLE OF CONTENTS
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SUMMARY
The Petitioners seek an order directing Data Services
Management, Inc. to modify the appropriate relication database to
render "unavailable" the toll free number 888-256-7766 and
certain other limited subscriber numbers.
Prior to the adoption, by the Chief, Common Carrier Bureau,
of the Report and Order, Mimeo No. DA 96-69, released January 25,
1996, the Petitioners made good faith efforts, consistent with
the Commission's general directives, to assure that their
previously-assigned 800 numbers would be included in the 888
replication database and would, as a result, be unavailable at
least until the Commission could resolve various issues
surrounding reservation of 888 numbers for "vanity" purposes.
However, the Petitioners' efforts were thwarted, through no fault
of their own, by the private organizations which, under the
system endorsed by the Commission, was established for assuring
such temporary unavailability of certain 888 numbers, including
those held by parties in the Joint Petitioners' position.
If the requested relief is not granted, the Petitioners risk
losing their ability to utilize the 888 numbers, since, absent
the requested relief, the numbers may be placed in service by
third parties. Such third parties may then proceed to trade upon
the goodwill and business reputation created by the Petitioners
in their 800 numbers, thus irreparably harming the Petitioners.
(i)
BEFORE THE
FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554
In the Matter of
Toll Free Service Access Codes
TO: The Chief,
Common Carrier Bureau
Federal Communications Commission
CC Docket No. 95-155
EMERGENCY PETITION FOR SPECIAL RELIEF
Pursuant to §§ 1.103, 1.45, 1.4(b), and 1.48 of the
Commission's Rules, 47 C.F.R. §§ 1.103, 1.45, 1.4(b) and 1.48,
Vanity International ("Vanity International
r
,) and Genesis Two, Inc.
("Genesis") (collectively Joint Petitioners"), by their attorneys,
petition, on an emergency basis, the Chief, Common Carrier Bureau
("Bureau"), of the Federal Communications Commission ("FCC" or
"Commission") for special relief arising from the Report and Order,
("R&O") , Mimeo No. DA 96-69, adopted and released in the above-
referenced docketed proceeding on January 25, 1996, FCC Rcd.
(1996) .1 As will be demonstrated, absent immediate Bureau ex
parte action and issuance of an Order by no later than 12:01 a.m.
1 Due to the rapidly approaching March 1, 1996 implementation
deadline established by the Bureau for the deployment of 888 toll
free access service, joint petitioners have no choice but to file
their petition prior to the March 1st date. The joint petitioners
note, however, that public notice of the release of the Bureau's
R&D in this proceeding has not as yet commenced, since pursuant to
the undersigned's knowledge (based upon review of Federal Registers
published since January 25, 1996 and a call placed to the FCC's
Clerk, Publications Office), there has been no publication of the
R&D in the Federal Register and such publication is not expected
for several days, well after the March 1, 1996 deadline. See 47
C.F.R. § 1.4(b) (1) (public notice of an order following notice and
rulemaking commences with publication in the Federal Register).
See also 47 C.F.R. § 103 (a) (referenced by the Bureau in an
ordering clause at~60 of its R&D as support for the effective
date being established upon adoption of the R&D) which also
provides that the aesignation of an earlier or later effective date
shall have no effect on any pleading periods.
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on March 1, 1996, directing Data Services Management, Inc. to mark
on the appropriate replication database, thereby rendering
"unavailable," toll free number 888-256-7766 and the limited
subscriber numbers (less than 100) set forth at Attachment B1 and
B2 of Exhibit 1 to this petition, deployment of the new 888 toll
free access service authorized by the R&O will result in serious
harm to joint petitioners, in direct violation of joint
petitioners' procedural and substantive rights afforded them by the
underlying policies of the Commission acting pursuant to delegated
authority in the adoption and implementation of the 888 toll free
service.
2
BACKGROUND
In an apparent response to concerns that the availability of
the numbers in the existing 800 toll free access service were
rapidly being depleted, the Commission adopted a Notice of Proposed
Rulemaking ("NPRM") on October 4, 1995 in In The Matter of Toll
Free Service Access Codes, FCC No. 95-419, released October 5,
1995, FCC Red. (1995). The Commission stated that in light
of this apparent situation, it believed it was necessary to
"initiate a rulemaking proceeding through which we seek to assure
that in the future, toll free numbers are allocated on a fair,
equitable and orderly basis" (further emphasis added). Id, slip
op. at~I, p. 3. As pertinent here, in general, the Commission
sought comment on proposals to: (1) promote the efficient use of
2 Contemporaneously with the filing of this petition, joint
petitioners will be filing a Emergency Motion for Stay, pursuant to
§ 1.43 of the Commission's Rules, 47 C.F.R. § 1.43.
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toll free numbers; (2) foster the fair and equitable reservation
and distribution of toll free numbers; (3) smooth the transition
period preceding introduction of a new toll free code; (4) guard
against warehousing of toll free numbers; and (5) determine how
toll free vanity numbers should be treated. R&O, slip op. at 3 (1
4). Interested parties were directed to file Comments with the FCC
on or before November 1, 1995 and Reply Comments on or before
November 15, 1995. NPRM, slip op. at 35-36 (1 61). Because of the
Commission's apparent desire to satisfy industry demand for the
deploYment of 888 service by March 1, 1996, the Commission,
pursuant to delegated authority, adopted and released an Order,
Mimeo No. DA 95-2337, on November 13, 1995, declining to extend the
date of the condensed comment periods established by it so as not
to "jeopardize the Commission's ability to establish rules for the
national implementation of 888 as the next toll free service access
code. ,,3
As pertinent to the primary concerns of the joint petitioners,
the Commission, inter alia, requested comments on several proposals
(e.g., a right of first refusal, industry classification, etc.)
which should be adopted in affording existing commercial 800
subscribers the right to protect their corresponding numbers in the
proposed 888 toll free service. NPRM, slip op. at pp. 24-29. The
3 As it turns out, in light of a conservation plan adopted by
the Bureau and implemented by the industry, 800 toll free numbers
are available through June 1996, four months after the industry
motivated request for deploYment of 888 toll free access code
service on March 1} 1996 is scheduled to commence. See R&O, slip
op. at 21 (, 35).
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Commission recognized the interests of BOO subscribers in "having
invested substantial resources in advertising the number and in
establishing the reputation for it." NPRM, slip op. at pp. 24-25
(~35)(wherein the Commission included examples of such vanity
numbers as 1-800-THE-CARD and I-Baa-FLOWERS). Various parties
submitted comments, including petitioner Vanity International, who
supported the replication of vanity numbers in the 88B toll free
service. Comments of Vanity International filed on November I,
1995.
An industry-based committee, SMS/BOO Number Administration
Committee, known as "SNAC," submitted a proposal to the Commission,
to address the issue of replication. In its replication plan it
informed the Commission that it had directed Responsible
Organizations ("RespOrgs") to poll their respective 800 subscribers
to determine which 800 subscribers wish to replicate in the 888
service. Once the vanity numbers were identified, SNAC directed
that DSMI, the database manager for the current 800 toll free
service, mark such numbers unavailable. Once the numbers were
designated unavailable, the numbers would not be released for
reservation at the time the rest of the 88B code is available for
reservation. R&D, slip op. at pp. 15-16(~~25-28). Based on
SNAC's ex parte submission on January 18, 1996, the Commission
estimated over 310,000 subscribers would be interested in
replication of their numbers in the 800 service. R&D, slip op. at
pp. 7 - 8 (13) .
On January 25; 1996, a R&D in this proceeding was adopted and
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released by the Commission's Common Carrier Bureau. Resolution of
the instant proceeding had been delegated to the Bureau by the full
Commission by Order, Mimeo No. FCC 96-18, adopted on January 24,
1996 and released January 25, 1996. Once again, in light of the
Commission's belief that 800 service access codes may be depleted
in the near future and the industry's previously anticipated
deploYment date of March 1, 1996, and in further consideration of
the delay caused by the Commission furlough and snow emergency
days, the Commission delegated the implementation of the 888
service to the Common Carrier Bureau, concluding that such
delegation was the most efficient way to ensure that regulatory
decisions necessary for the March 1, 1996 deploYment would be made.
As pertinent herein, the Bureau's R&O adopted the SNAC Plan,
modifying it to permit additional polling by the RespOrgs, while
retaining the March 1, 1996 deploYment date of 888 toll free access
service. R&O, slip op. at pp. 2-3(~2) and pp. 33-34(~58). The
Bureau further directed that I1D8MI set aside those 888 numbers
identified by the RespOrgs as a result of this polling process by
placing these 'vanity numbers' in 11 unavailable 11 status until the
Commission resolves whether these numbers ultimately should be
afforded any permanent special rights or protection. 11 R&O, slip
op. at pp. 2-3(~2). Vanity numbers were defined by the R&O I1to
describe a number that a subscriber requests be made unavailable
during the initial 888 reservation period. 11 I1A number designated
l1unavailable 11 in the 8M8 database is not avavailable for assignment
to any toll free s'ubscriber. 11 Id, fns. 4, 5.
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In direct response to petitioner Vanity International's
express concerns that service providers/RespOrgs were not
adequately polling smaller commercial subscribers like it, the
Bureau modified the SNAC Plan, directing RespOrgs to continue the
polling process, for a period of one week (January 26, 1996 until
11:59 p.m. on February 9, 1996), contacting commercial subscribers
not previously polled. R&D, slip op. at p. 2 (, 2); p. 23 (, 38) .
The polling window, which occurred after the release of the
Bureau's R&D, was the only polling period specifically directed by
the Bureau in this proceeding. Once the window period closed on
February 1, 1996 at 11: 59 p. m., from February 2, 1996 until
February 9, 1996, DSMI was given time to process all replication
requests in the database. On February la, 1996, at 12:01 a.m., an
early reservation process went into effect, permitting RespOrgs to
reserve available 888 numbers listed in the DSMI database. The
early reservation process was established so that DSMI could phase
in requests for new 888 service prior to the commencement of such
service on March 1, 1996, without being overloaded.
Prior to Vanity International's ex parte comments on January
19, 1996, filed with the Commission the week before the Bureau's
adoption of the R&D on the 25th of January, the Bureau was under
the apparent assumption that all RespOrgs, as directed by SNAC,
were actively engaged in polling their 800 subscribers. See e.g.,
Comments of the Service Management System/800 Number Administration
Committee of the Order and Billing Forum filed with the FCC on
November 1,1995 '(pp. 13-14) and the SNAC 888 Replication Plan
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filed with the FCC on December 13, 1995, p. 1. Petitioner Vanity
International, however, put the Commission directly on notice, that
notwithstanding representations made to the Commission by SNAC and
other commenters (see, e.g., LDDS' comments discussed at fn. 9
infra), that the RespOrgs were polling their commercial subscribers
as directed by SNAC, to permit SNAC to process the information and
inform the Commission of its results, many RespOrgs were not, in
fact, contacting or polling their commercial 800 subscribers,
especially smaller commercial subscribers. In direct response to
Petitioner Vanity International's concerns, the Bureau directed
that the polling process by RespOrgs of their previously unpolled
commercial 800 subscribers continue for another week.
STANDING
Petitioner Vanity International is a vanity design and
consulting firm, owned by Loren Stocker. See Declaration of Loren
Stocker of Vanity International, Exhibit 1 attached hereto. Vanity
International timely submitted Comments in response to the NPRM, in
addition to the submission, on January 19, 1996, of a permissible
ex parte filing. Since the adoption of the R&O on January 25,
1996, events have occurred which require petitioner to seek special
relief from the Bureau before the scheduled commencement of the 888
access code on March I, 1996 as directed by the R&O. As will be
demonstrated, despite Vanity International being aware of the
Commission's rulemaking proceeding and the R&O adopted and released
by the Bureau on January 25, 1996, the R&O's effective date, Mr.
Stocker, acting 'on behalf of Vanity International and its
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affiliated companies, was nonetheless frustrated in its efforts,
following the release of the R&D, to seek replication of all
commercial 800 numbers of Vanity International's affiliated
companies. Mr. Stocker timely submitted replication requests to
various RespOrgs within the brief one-week reservation deadline of
January 26, 1996 through February I, 1996, first announced by the
Bureau in its R&D released on January 25th. The most notable
roadblock faced by Vanity International in seeking replication
protection consisted of arbitrary internal deadlines apparently
adopted by certain RespOrgs (in Vanity International's case, AT&T),
which unilaterally, and without prior notice to Vanity
International, shortened the polling period that was established by
the R&O. In adhering to its internal deadline rather than the
Bureau's, RespOrg AT&T refused to accept Vanity International's
requests for replication and refused to provide those requests to
DSMI. See Exhibit 1 (declaration of Loren Stocker of Vanity
International). These events arose after the Bureau's immediate
adoption of the R&O and are being presented to the Bureau for
immediate rectification.
Petitioner Genesis is a an Oregon corporation which owns and
operates a cut flowers and gift delivery business under the name of
800-BLOSSOM. As indicated in the declaration of its President,
Robert H. Tate (Exhibit 2 herein), Genesis first learned of the
potential for an 888 service well after the deadline for the
submission of Comments and Reply Comments in the NPRM. Genesis,
which provides its'cut flowers and gift business to customers on a
~--"'_.
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nationwide and international basis (and was not familiar with
telecommunications issues heretofore) t lacked actual knowledge
relative to the Commissionts NPRM and comment periods. Moreover,
Genesis was never polled by its service provider and RespOrg, LDDS,
as to whether Genesis desired to protect its 800-BLOSSOM number in
the corresponding proposed 888 service, including during the
subsequent window period established by the Commission in the R&O
upon its adoption. See Declaration of Robert H. Tate, Exhibit 2
hereto
t
pp. 6-7 (at 1 10). Upon learning of the proposed 888
service in early December 1995, from a competitor to Genesis'
service provider for 800-BLOSSOM, Mr. Tate made several calls over
the period of early December 1995 through January of 1996, to
various service providers, including LDDS t to ensure that its
interest in protecting its corresponding 888 number be placed on
the appropriate list or lists which he had become aware were being
compiled by the service providers, including LDDS. Tate
Declaration, Exhibit 2, pp. 1-5.
Notwithstanding Genesis t extensive efforts, the specific facts
of which are set forth at Exhibit 2 herein, Genesis was also
unfairly precluded from obtaining replication protection as
provided in the Bureau's R&O. Consequently, joint petitioners,
whose economic interests in protecting against assignment to other
subscribers of any commercial 800 toll free number joint
petitioners were entitled and timely sought to have replicated
t
are
adversely affected by the Bureau's R&O, and entitled to seek
special relief therein before the deployment of the new 888 toll
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free service on March 1, 1996. See FCC v. Sanders Brothers Radio
Station, 309 U.S. 470 (1940).
The Bureau must act on this emergency request before 12:01 a.m. on
March 1, 1996 in light of the serious public interest questions
which arise as a result of joint petitioners protection rights
afforded under the R&O being ignored or dishonored by certain
RespOrgs identified herein and joint petitioners having no choice
but to seek replication protection through their respective
RespOrgs rather than providing the necessary information directly
to DSMI. See, e.g. R&O, slip op. at p. 2, fn. 3.
ARGUMENT
Absent immediate ex parte action by the Bureau as requested
herein, the implementation of the R&O and 888 toll free service
commencing March 1, 1996 will impermissibly deny joint petitioners'
procedural and substantive rights in having "protected" various
commercial toll free numbers I which the FCC has specifically
determined are subject to being protected pending further decision
by it within the year. R&O, slip op. at pp. 2-3,(~2).
In what can only be described as an adult version of the game
IIkeep away, II certain participants in the 800 service provider
industry, including certain RespOrgs, have impermissibly engaged in
conduct resulting in current 800 commercial vanity number
subscribers, like joint petitioners,4 from being afforded
4 According to the NPRM, "ea] vanity number is a telephone
number for which the letters associated with the number's digits on
a telephone handset spell a name or word of value to the number
holder. Examples of such vanity numbers include nl-800-THE-CARDn
and "1-800-FLOWERS." NPRM, slip op. at 24(~35). The NPRM also
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"protection
ll
in the form of replication of their respective 800
commercial toll free numbers in the proposed 888 toll free access
code, pending further Commission action, as provided in the
Bureau's R&O.
In adopting its R&O, the Bureau adopted the SNAC Plan as
modified (e.g., to permit additional polling) for the deployment of
new 888 toll free access service based on representations made in
that Plan, which included that RespOrgs were directed by SNAC to
poll their subscribers, report the information to SNAC, who in turn
would inform the Commission as to the level of interest by current
commercial subscribers to replicate their 800 numbers in the
proposed 888 service. See, e.g., R&O, slip op. at pp. 2-3 (" 2),
pp. 22 - 23 ( , , 3 7 - 3 8) . It further adopted and seeks to implement
the R&O in a manner it believes will satisfy the demand of the
industry, which has consistently requested a March I, 1996
deployment deadline, notwithstanding the significant lessening of
need to meet the March I, 1996 deadline in light of the
Commission's conservation plan providing for the availability of
800 service numbers to the public through June 1996.
Prior to the adoption of the R&O, the Bureau was informed by
petitioner Vanity International that RespOrgs were not polling
their commercial 800 subscribers to determine the interest by those
determined that for purposes of the NPRM, lIvariity numbers may also
include any numbers in which the holders have a particular
interest, be it economic, commercial or otherwise. II Id. For
purposes of the R&O, the term IIvanity number
ll
describes a number
that a subscriber requests be made unavailable during the initial
888 reservation period. R&O, slip op. at p. 2, fn. 4.
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customers in having such subscribers' numbers replicated. See Ex
Parte Comments of Vanity International filed on January 19, 1996
and referenced at " 33 and 37 of the R&O. In response, the Bureau
directed the RespOrgs to continue polling, recognizing that the
RespOrg was in the best position to make such inquiry. Id, at (,
37). Unfortunately, as experienced by joint petitioners, certain
RespOrgs, even after being informed that the R&O specified further
polling of those commercial 800 subscribers not previously polled,
failed to poll or notify their commercial 800 subscribers. See
Exhibits 1 and 2 herein.
The impermissible action by certain RespOrgs, if not corrected
by the Bureau before the March 1, 1996 deployment date, will result
in substantial harm to joint petitioners. The commercial 800
numbers which joint petitioners timely requested be replicated,
have already been reserved by other RespOrgs on behalf of other
subscribers (e.g., Genesis' replication number 256-7766) and/or
will be available to be placed in service on March 1, 1996. Joint
Petitioners have been treated like "bouncing balls". First, they
were not polled and informed by their RespOrgs of the proposed
replication plan, matters essential to joint petitioners' business
operations. Secondly, joint petitioners were excluded from
placement on lists compiled by RespOrgs during internal compilation
periods as well as during the Bureau established polling period,
though requests were timely made by joint petitioners for such
inclusion. Moreover, Genesis' requests to its assigned RespOrg
LDDS and other RespOrgs for replication during the period of early
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December 1995 through January 1996 were repeatedly denied, and each
denial was followed with misleading information from the RespOrgs
that the lists being compiled were for FCC informational purposes
only and had no legal significance. When the Bureau's one week
polling period was established in January, 1996, once again joint
petitioners were not polled despite Bureau directive to continue
polling commercial subscribers not previously polled (i.e.,
Genesis, Vanity International and no doubt others) .
The "bouncing" continued when Vanity International timely
sought replication during the Bureau's polling period, only to be
cut-off by a RespOrg artificially imposing a deadline shorter than
the Commission's permissible polling replication window, who then
refused to seek replication with DSMI on behalf of petitioner
Vanity International. In certain instances, Vanity International's
timely requests were also not protected by other RespOrgs but for
which Vanity International has no independent knowledge as to the
reasons for such failures. Ultimately, all such activities
impermissibly engaged in by certain RespOrgs resulted in joint
petitioners being denied basic procedural and substantive rights
under the R&O. Inaction by the Bureau to immediately investigate
and correct the adverse consequences which continue to befall joint
petitioners as a result of the unlawful activities of certain
RespOrgs in connection with the implementation of the R&O, can only
be viewed as tacit approval of the activities of certain RespOrgs
by the Bureau, and such tacit approval is otherwise contrary to
law. See Administrative Procedure Act, 5 U.S.C. § 706(1) (B).
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In adopting the NPRM, statutory authority for the Commission
to promulgate the proposed 888 access rules was set forth at , 12.
Section One of the Communications Act (the "Act") expressly
requires the Commission "to make available, so far as possible, to
all the people of the United States a rapid, efficient, Nation-
wide, and world-wide wire and radio communication service." As the
NPRM further noted, "Title II of the Act confers upon the
Commission responsibility for regulating the activities engaged in
the provision of common carrier services." Id.
S
Given this
statutory mandate, the Bureau must provide the relief joint
petitioners seek prior to the March 1, 1996 deployment date based
on the facts presented herein. The statutory mandate to the
Commission clearly provides the Commission with authority to
prevent any person including Mr. Tate and Mr. Stocker, from being
forced to engage in what can only be described as "herculean"
efforts to protect their interests afforded to them by the R&O but
denied them by the unlawful activities of certain RespOrgs, whose
activities the Commission exercises regulatory authority. See
CompTel Order, supra, 8 FCC Red. at 1428.
The R&O afforded considerable deference to the SNAC Plan and
the underlying assumptions that formed the basis of the Plan in its
adoption of that Plan, as modified. However, the Bureau's R&O
5 Moreover, the Commission has regulatory authority with
respect to access to the Service Management System (SMS) database
by RespOrgs under Title II of the Act. See In the Matter of
Provision of Access for 800 Service, 8 FCC Red. 1423, 1428 (, 28)
(1993) ("CompTel Order") (wherein the Commission determined that
such access by Re'spOrgs constitute provision of common carrier
services) .
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provides no mechanism in which to resolve the dilemma impermissibly
imposed on joint petitioners by the R&O. As Mr. Tate attests, the
comments of the Commission's staff directed petitioner Genesis to
contact DSMI for information concerning his dilemma.
6
In seeking
immediate resolution of the harm caused to Genesis, Mr. Tate
contacted DSMI where he was told by DSMI, that absent Commission
intervention directing DSMI to do so, DSMI would not alter the
replication table. Genesis did seek Commission intervention (fn.
6 supra), but was informed by a staffperson that there was nothing
the Commission could do! Mr. Tate was consistently told by the
RespOrgs that they were only keeping FCC informational lists with
no legal significance. When the RespOrgs were directed by the R&O
to continue polling, joint petitioners were never contacted. See
Exhibits 1 and 2 attached. And even where petitioner Vanity
International attempted to be placed on the replication table
during the Bureau established polling window, it was impermissibly
cut-off by its RespOrg due to an internal imposed deadline shorter
than the Bureau's window.
While the Commission may carefully consider comments by
members of an industry intricately familiar with challenges being
presented in establishing rules affecting the industry, and may
6 Relief from the intolerable situation Genesis found itself
in was previously sought from Ms. Irene Flannery of the Common
Carrier Bureau in the form of a letter from Genesis' Portland,
Oregon attorneys on February 8, 1996 (a copy of the letter is
attached as Appendix B to Mr. Tate's declaration (Exhibit 2). In
a follow-up call to the Commission on February 9, 1996, Genesis'
Oregon counsel was informed by Bradley Wimmer of the Common Carrier
Bureau, that there was nothing the Commission could do. Tate
Declaration, Exhibit 2, p. 14(~27) .
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rely on the members of the industry to act responsibly in carrying
out their duties to the public as mandated by the Commission and
the Act, only the agency is afforded the authority to promulgate
rules, and it must do so by reasoned decision-making. Motor
Vehicle Manufacturer's Association v. State Farm Mutual Auto Ins.
Co., 463 u.s. 29 (1983). The Bureau, pursuant to delegated
authority, adopted the R&D, affording replication protection to
joint petitioners, while relying on RespOrgs, entities over whom
the Commission has regulatory authority, to act responsibly in
carrying out its duties as RespOrgs and common carriers. The
actions of certain RespOrgs as described by joint petitioners
herein were not remotely responsible. The deploYment of the new
888 toll free access service under the R&D without implementing the
relief requested by joint petitioners herein renders the decision
of the Bureau beyond the bounds of reasoned-decisionmaking.
The Catch-22 situation which joint petitioners find themselves
in despite affirmative efforts to avail themselves of the
protection afforded in the R&D, is not only intolerable, it is
contrary to the Commission's mandate in seeking to provide
communications service to lIall of the people of the United States
ll
in an efficient, fair and orderly manner. The experiences of
Vanity International and Genesis outlined in Exhibits 1 and 2
attached hereto, respectively, clearly belie the fulfillment of
such mandate by the Commission. The Bureau must step in and
protect joint petitioners where the RespOrgs have impermissibly
failed to do so.
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The Commission's recognition of potential civil liability of
those RespOrgs who have not acted responsibly does not solve the
dilemma faced by Vanity International and Genesis. R&D slip op. at
p. 22(~37). The scheduled deployment date of the new 888 access
code is March 1st. Joint petitioners have done everything humanly
possible and then some to resolve their unjustifiable predicament,
including speaking to the FCC, the RespOrgs involved and DSMI.
They have suffered enough and should not be required to suffer the
irreparable harm which will result upon the Commission's proposed
deployment of the 888 service without ensuring that the numbers
which the joint petitioners sought to have replicated consistent
with the R&D are placed on the DSMI database as "unavailable" and
therefore "protected. "7
7 Protection to commercial subscribers with vanity numbers
like Genesis' 800-BLOSSOM even on an interim basis is a significant
right, and the Bureau recognized this by its deferral of a final
ruling on the subject pending further consideration. In affording
the interim protection the Bureau intended to balance the interests
of commercial subscribers like Genesis and Vanity International who
have invested significant resources in their respective vanity
numbers with the need to provide toll free service to the public.
R&D, slip op. at(~14).While joint petitioners believe that
such protection should be afforded on a permanent basis, they will
await further action by the Commission or its staff pursuant to
delegated authority to provide further information in support of a
final rule. The Bureau's R&D should not, however, have the clear,
unintended effect of stripping Genesis and Vanity International
from the protection they were required to be afforded by the R&D.
This is especially so where the improper actions of Genesis'
RespOrg in failing to replicate Genesis' 800 -BLOSSOM number, a
matter which could easily have been done, will result, absent
immediate Bureau intervention, in the assignment of the
corresponding 888 number to an entity whose agents have expressly
represented intends to compete in the flower business, in order to
take advantage of Genesis' 800-BLOSSOM business, damaging the
commercial interests of Genesis and leading to confusion of the
public. See fn. 8 infra.
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Secondly, joint petitioners, already forced to incur significant
time and expenses in numerous unsuccessful efforts at replication,
see generally Exhibits 1 and 2 herein, have been forced to expend
additional resources before the FCC with the filing of the instant
emergency petition. Further resources may also have to be expended
by joint petitioners if required to seek relief from the United
States Court of Appeals should the Bureau decline or refuse joint
petitioners the relief requested herein. Wi th the impending
deploYment of the 888 toll free service on March 1st, the ability
of joint petitioners in seeking monetary damages and/or injunctive
relief from the unlawful actions of one or more RespOrgs in a court
of competent jurisdiction is difficult if not impossible and will
also unduly require further significant expenditures of time and
money.
The reality is the Commission and its delegated authority have
the regulatory power to rectify the intolerable situation joint
petitioners find themselves in, which situation was caused by
certain RespOrgs failing to protect the interests of subscribers
like Genesis and Vanity International, by failing to poll and
inform them of the new 888 toll free service in order to determine
interest in replication and by excluding and refusing to honor
timely requests by joint petitioners to be placed on replication
lists. These failures have impermissibly resulted in the
corresponding 888 numbers to be made available on a first-come,
first serve basis for reservation and assignment by outside
parties.
8
- 19 -
The Commission can and must exercise its regulatory
authority over those RespOrgs, like LDDS, who have acted improperly
and unlawfully in failing to perform their responsibilities as
RespOrgs, including providing the Bureau with the mistaken
impression that
responsibilities.
9
such RespOrgs adequately performed their
8 With respect to the number 888-256-7766, the 888 number
Genesis sought to replicate, the number has been secured by a
RespOrg, whose anonYmous client apparently intends to engage in a
competing flower business, by taking advantage of customer
confusion and misdials (See Tate Declaration, Exhibit 2 herein, pp.
17-18, 1 33), and the built-up goodwill of Genesis with respect to
its corresponding 800-256-7766 (800-BLOSSOM) number utilized in its
flower and gift business. This is precisely the conduct which the
FCC sought to avoid in providing interim protection to a qualified
subscriber like Genesis seeking replication. R&O, slip op. at 7 (1
12) and 33 (1 58) (recognition of commercial interest in 800
numbers which competitors may seek to underminei interim protection
provided for all equivalent 888 numbers currently designated by
current commercial 800 subscribers by setting those numbers aside
during the initial 888 reservation period). It is unclear at this
time whether the unknown subscriber has sought assignment of the
888-256-7766 from reserve status.
9 Incredibly, LDDS has been intimately involved in the
adoption and implementation of the Bureau's R&O, having submitted
Comments and Reply Comments in response to the NPRM. Despite its
involvement in the 888 toll free service rulemaking, including its
support for the one-time replication of all 800 numbers provided
such replication was fee-based (See Reply Comments of WorldCom,
Inc. d/b/a LDDS WorldCom filed November 20, 1995 at p. 8), LDDS
nonetheless failed to act as a responsible RespOrg. As indicated,
Genesis was never polled by LDDS, its service provider and RespOrg,
and despite repeated requests by Genesis to be added to a
replication list compiled by LDDS, Genesis was consistently
refused. See Tate Declaration, Exhibit 2, pp. 1-5).
LDDS' irresponsibility is not only evidenced by the
deficiencies described herein, but is exacerbated by LDDS' course
of conduct in misleading Genesis which made its replication
requests known to LDDS, its service provider/RespOrg, on several
occasions in December 1995 and January 1996. In each instance LDDS
represented that the lists previously compiled by it were for FCC
informational purposes only and had no force and effect as the FCC
had not yet ruled. -See Tate Declaration, Exhibit 2 herein, p. 4 (1
6) ) . Just prior to this time period, in November, 1995, LDDS
- 20 -
Absent the immediate issuance by the Bureau of an ex parte
Order, issued prior to 12:01 a.m. on March 1, 1996, directing,
inter alia, DSMI to mark as "unavailable" on the 888 toll free
database, toll free number 888-256-7766, and all the commercial
subscriber numbers requested by Vanity International and its
affiliated companies at Attachment B1 and B2 to Exhibit 1 herein,
until the Commission further addresses and issues its final rule
concerning the protection to be afforded 800 vanity users with
respect to 888 replication, these numbers will be subject to
reservation and ultimate assignment to potential subscribers who
have or will in the future, obtain use of these numbers, to the
immediate detriment of Genesis and Vanity International, whose very
protection rights the Bureau sought to respect in the adoption of
the R&D. This result is contrary to the letter and spirit of the
Bureau's R&D and must be rectified by the Bureau under the facts
affirmatively represented to the Commission in its Comments that it
was aware of SNAC's study in attempting to develop "pertinent data"
and that LDDS was "surveying its own 800 customers and [would]
report back to the FCC via the ex parte process should [LDDS]
garner an accurate reading of [LDDS'] subscribers' desires.
Comments of WorldCom, Inc. d/b/a LDDS WorldCom filed with the FCC
on November 1, 1995. As previously noted, Genesis was never polled
by LDDS, even after the R&D adopted a further polling window, and
Genesis was consistently refused placement on lists previously
compiled by LDDS and other RespOrgs which lists were purportedly
limited to FCC informational purposes. In checking the FCC's
database in this proceeding, there is no record of LDDS submitting
any further comments via the ex parte process and Genesis seriously
doubts that such polling efforts were made based on its experiences
with LDDS. This is so notwithstanding Genesis being informed for
the first time on February 5, 1996 by an individual associated with
LDDS that LDDS did have a replication schedule in place at time
periods Genesis sought replication with LDDS (Tate Declaration,
Exhibit 2, pp. 8-9. (, 14)), from which Genesis was impermissibly
excluded.
- 21 -
presented herein.
RELIEF REQUESTED
The FCC is clearly authorized and must take immediate ex parte 10
action, prior to the March 1, 1996 deployment date of 888 toll free
service, directing DSMI to immediately mark as "unavailable" on the
888 toll free database, all joint petitioners' commercial 800 toll
free numbers for which replication was not previously afforded
joint petitioners despite timely requests made to the affected
RespOrgs. To the extent required, the Bureau shall further direct
all appropriate RespOrgs, including but not limited to, LDDS
(Genesis' RespOrg), AT&T, Sprint and Allnet/Frontier (Vanity
International affiliated companies' RespOrgs) , and TWC
Communications (the RespOrg who holds a reservation for an
anonymous client who requested the 888 version of Genesis' 800-256-
7766 number), who have reserved and/or assigned to a RespOrg or any
third party, any of the affected 800 commercial toll free numbers
for which joint petitioners attempted to seek replication and were
denied, to unreserve and/or re-assign, all commercial 800 toll free
subscriber numbers which have not been previously replicated or
otherwise reserved by joint petitioners, for placement on the DSMI
10 Ex parte action by the Bureau pursuant to 47 C. F. R. §
1.45(e) is appropriate since replication protection currently
afforded 800 commercial subscribers like joint petitioners is
suject to the Bureau or the Commission's issuance of a final ruling
within the year. Joint petitioners are seeking only that to which
they are entitled,under the Bureau's R&O and accordingly the Bureau
has the discretion to take action ex parte in granting the relief
requested by joint petitioners.'
- 22 -
replication list as "unavailable."ll
This action should also be taken immediately so that DSMI can
inform appropriate RespOrgs that any subscriber who sought early
reservation under the R&O's early reservation plan of the 888
numbers which petitioners previously requested be replicated prior
to the early reservation period which commenced on February la,
1996, can be provided with other numbers for immediate reservation
or use. Since the early reservation plan was designed to avoid a
last minute "gold rush" on the DSMI database on the scheduled
deployment date of March 1st, the assignment of other available
numbers in either 800 or the new 888 toll free service will not
significantly harm the public or any other interested party.
Moreover, the R&O continues to be subject to the timely filing of
reconsideration or appeal, which time periods have not expired (see
47 C.F.R. §§ 1.103 and 1.4(b)). Accordingly, any party that has
expended any resources, nominal or otherwise, in connection with
the promotion of the new 888 toll free access numbers reserved or
assigned during the early reservation period has taken such action
at its own risk. See Teleprompter Corp., 50 Rad. Reg. 2d (P&F)
125, 127 (CATV Bur. 1981); Improvement Leasing Co., 73 F.C.C.2d
11 The joint petitioners are seeking immediate relief as
requested herein. As a separate matter down the line, the Bureau
may also consider what action if any it should take in penalizing
RespOrgs who have acted improperly, for example, by their failure
to adequately poll all of their existing commercial subscribers,
and their failure to honor timely requests made directly to the
RespOrg by the subscriber for replication, including consideration
of the imposition of an appropriate fine or monetary forfeiture, or
more serious action such as decertification of an entity as a
RespOrg. See, e.g., NPRM, slip op. at 23 (, 33).
- 23 -
676, 684 (1979), aff'd, Washington Ass'n for Television and
Children v. FCC, 665 F.2d 1264 (D.C. Cir. 1981).
CONCLUSION
For the foregoing reasons, joint petitioners Vanity
International and Genesis Two, Inc. request the Common Carrier
Bureau of the Federal Communications Commission, pursuant to
delegated authority, to take immediate action no later than 12:01
a.m. on March 1, 1996 and issue an ex parte Order, directing Data
Services Management, Inc. to place on the appropriate replication
table, thereby rendering nunavailable," the toll free number 888-
256-7766 and all subscriber numbers listed at Attachment Bl and B2
to Exhibit 1 hereto, which joint petitioners were entitled to
replicate but were wrongfully denied such protection, and to take
any other ex parte action consistent with joint petitioners
requests herein, and consistent with the policies and rules of the
Bureau in adopting, establishing and implementing the 888 toll free
service.
Respectfully submitted,
Ann C. Farhat
Bechtel & Cole Chartered
1901 L Street, N.W.
Suite 250
Washington, D.C. 20036
202/833-4190
Counsel for Vanity International
and Genesis Two, Inc.
February 29, 1996
Exhibit 1
· 'i
DECLARATION OF LOREN STOCKER
for VANITY INTERNATIONAL
and Arnliated Companies
Loren C. Stocker, Managing Partner ofVanity International, hereby submits declaration
under penalty ofpeIjury as follows.
Vanitr International is the world's premier vanity design and consulting finn. We
specialize in strategic marketing through the creation, acquisition, and application of
vanity numbers, typically vanity 800 numbers. I am the founder ofVanity International and
sole owner ofthree affiliated companies that use 800 vanity numbers.
I've made extraordinary, personal effort to enter replication requests for the 888 versions
ofour affiliated company's 800 numbers but now have dozens ofnumbers that were
mishandled either by the our RespOrgs or DSMI. Apparently, communication between the
RespOrgs and DSMI broke down and these numbers failed to be marked as "unavailable,"
as requested. A Summary ofEvents is listed below with details following:
SUMMARY OF EVENTS
Note: Alldatesfollowingare between November 1995 andFebroary 1996.
Nov 1-15
Dec 29
Jan 5
Jan 11
Jan 12
Jan 12
Jan 12
Jan 12
Jan 12
Jan 12- 18
Jan 18
Jan 25
Jan 26
Jan 29
Jan 31
Jan 31
Submitted Comments and Reply Comments on Docket 95-155.
AT&T-- Initial Submission
CWC-- Initial Submission
First suspected that the Jan 12th "second pass" deadline may be the
final deadline.
Learned that even the authors ofrecent articles on 888 numbers were
unaware ofthe SNAC proposed Jan 12th replication deadline.
Allnet/Frontier-- Initial Requests.
AT&T-- Additional Requests.
U.S. Sprint Submission
MCI-- Initial Submission.
Researched situation and confinned that the January 12, 1996 was a SNAC
proposed deadline, still pending FCC approval.
Sent Exparte Comments to FCC via Fed-X
Got word on the extension of888 replication requests through Feb 1.
Faxed announcement ofFebruary 1, 1996 replication deadline and
February 10, 1996 888 pre-reservations date to all existing clients.
AT&T calls about pre-reservations launch, Feb 10.
Submitted final requests to Allnet at 7: 19 am
Submitted final requests to MCI at 10: 15 am
Cont...
Jan 31
Jan 31
Jan 31
Jan 31
Jan 31
Jan 31
Feb 1
Feb 1
Feb 1
Feb 1
Feb 1
Feb 9
Feb 10
Feb 12
Feb 12
Feb 12
Feb 12
Feb 12- 19
Feb 19
Feb 21
Feb 21
Feb 23
Feb 26
Submitted final requests to CWC at 11 :02 am
Submitted final requests to AT&T at 3:02 p.m.
Allnet reportedly enters requests but would only confirm verbally
Learned ofintemal AT&T deadline ofJan 30
Learned ofinternal CWC deadline ofJan 30
Called the FCC regarding the February 1, 1996 deadline and was told that
they were leaving this interpretation to DSMI.
Called DSMI and confirmed that they would accept submission .Knt Feb 1.
Conference call with AT&T communicated DSMI's position on the
February 1, 1996 deadline.
CWC successfully entered requests and confirmed verbally
MCI successfully entered requests and confirmed verbally
AT&T refused to enter requests but does not advise me ofthis until late
the next day. They suggested that they would help get them back for me.
Called Mr. Brad BeaJ ofAT&T to discuss launch situation.
12 midnight, I call AT&T, explain the situation, and ask that some ofmy
most vital numbers be secured immediately.
We discover AT&T failed to take any action
I discover that key numbers are on reserve by others
I realized that Sprint/DSMI failed to execute our January 12, 1996 request,
despite the fact that the deadline was extended until February 1, 1996.
I discuss with Bard Beal ofAT&T and he reports that his efforts were
overruled and my requests for 888 numbers will go in-line with everyone
else. To this date, I know ofno effort made by AT&T to help.
I asked Allnet, Ameritech and CWC to help recover some ofthe numbers
AT&T failed to protect.
I discover that Allnet failed to protect one specific number
I further discovered that Allnet and DSMI failed to protect all ofthe
numbers on one specific account.
I advised Allnet ofthe seriousness ofthis matter.
I confirmed that no mechanism exists to correct carrier screw-ups.
Our 888 number unprotected by Sprint now shows "working" status, but
Allnet may have unilaterally activated.
Nov 1-15-- Submitted Comments and Reply Comments on Docket 95-155. By this
time I was aware that the FCC was soliciting input from the RespOrgs on vanity numbers,
but understood this to be primarily market research to access the "Scope ofVanity
Numbers," from my reading ofDocket 95-155 (IV, D-2, Paragraph No. 40). I offered an
estimate that working vanity numbers represented approximately 17.5% ofall 800
numbers, or about 1.3 million in my reply comments (see Comments ofVanity
International and Reply Comments ofVanity International).
Concurrently, I knew first hand that only our large clients were being contacted by their
RespOrgs and asked to submit requests for 888 replications, as well as new 888 numbers.
At the time, I assumed that smaller users would be polled in due course, or put on notice
that they had some period oftime to contact their RespOrg to enter requests for vanity
replication. I understood it to make no difference whether a request was the first or last to
be collected; replication means priority over any and all reservations. So, I had no cause
for concern and no knowledge ofany deadlines.
Dec 29- AT&T- Initial Submission. By late December my AT&T account
representative, Sharon Renfro, had heard about 888 requests and mentioned it during one
ofour conversations. Sharon was unaware ofany firm deadline but said to me, "You'd
better get this in right away." She faxed me copies ofthe form entitled, "Request to
AT&T for 888 Number Reservations(s)" on December 29, 1995. Despite the fact that the
AT&T form stated nothing explicit about "replication," it was the same form used
successfully to enter replication requests for our large AT&T clients. We accepted its
validity.
We entered replication requests for several ofour affiliated company's most vital 800
numbers within the next few days. Still, we trusted that we had time to review our
accounts and enter additional requests between now and the planned activation date. We
had heard ofno final deadline and the activation date was still tentative.
It is essential to point out that Sharon's comments were completely self-motivated and
much appreciated, but off-hand; I had called her on another matter. No one at AT&T
communicated any information whatsoever about the opportunity and ensuing deadlines to
replicate 888 versions of800 numbers.
Ja??ary 5- CWC- Initial Submission. Doug Vlasak, our account rep from Cable &
Wrreless (CWC), was the only RespOrg agent to approach us. We submitted a form pre
dated December 15, although I received it and filled it out in early January. As ofthis date,
we had read the December 15, 1995 letter from Michael Wade (DSMI) to Kathy Levitz
(FCC) and understood this to be the "next round" or "second pass." I trusted that ifand
when a final deadline was scheduled, it would be well publicized. Further, with this one
exception, our carriers had yet to serve us notice ofthis opportunity.
Jan 11- Fint suspected that the Jan 12th "second pass" deadline may be the final
deadline. We first got word ofthe January 24th launch date at 5:20 p.m., January 11,
1996 from industry consultant Judith Oppenheimer (Attachment AI). Concurrently, the
CrowleslSIMBA News Wire article by Lynn Jones was the first public announcement of
the January 24, 1996 launch to my knowledge (Attachment A2). Putting two and two
together, I at once suspected that this "second pass" must, in fact, be the only pass left.
Suddenly, the "second pass deadline" took on new meaning! I later learned that an
industry meeting had been scheduled for the day before, January 10, 1996.
Jan 12 - Learned that even the authon of recent articles on 888 numben were
unaware ofthe SNAC proposed Jan 12th replication deadline. This included Lynn
Jones ofCrowles Direct News Wire, who wrote the Jan 12, 1996 News Wire, and Ken
Libeskind ofthe DMNews who authored several articles on 888 numbers. Lynn Jones'
news wire mentioned only the January 24, 1996 pre-reservations and not the January 12,
1996 deadline. When I spoke with her this day, she was unaware ofthe replication request
deadline.
Ken Libeskind was unaware ofeither deadline and had just published an article January 8,
1996 which included a statement from Karen Way, an AT&T spokeswoman. She stated
that, "The industry wants a 45-day per-reservation period before the new code starts to
reserve 888 numbers and handle competing requests for the same numbers. That period
must begin in mid-January to permit the March 1 introductions." Clearly, this pre
reservation launch schedule was tentative at the time ofthe article. Replication deadlines
had never been mentioned in this or any other article I am aware of
Further, I contacted all ofour carriers and discovered that some were not even taking
requests and most were dispelling misleading and inaccurate information (see Exparte
Comments ofVanity International under, "Personal Effort") We simply did not have time
with such short notice to organize our final submissions and force the issue with those
carriers who had no mechanism in place to accept our requests.
Jan 12 - AllnetIFrontier-- Initial Requests. We attempted to submit replication
requests, but were told "the FCC hadn't ruled yet" and that no mechanism was in place to
take requests. No one at Allnet/Frontier ever polled us for our protection requests or
communicated any specific deadlines regarding the replication of800 numbers.
Jan 11-AT&T- Additional Requests. We attempted to submit additional 800
numbers for replication. We were told that AT&T was "filing in order ofreceipt," but
understood that they were not entering the data into the SMS database. This was
confirmed in writing the following Monday, at my request (Attachment A3). In terms of
replication, I believed a manual filing to be pointless. No one at AT&T communicated any
specific deadlines regarding the replications of800 numbers, although we had submitted
some ofour 800 numbers for 888 replication around December 29, 1996. We simply did
not have time on such short notice to organize our final submissions and force the issue.
This parallels the experience ofMr. Richard Zorn of800-Tickets. His AT&T rep, Dan
Knox, said that the forms were being "filed internally" and that they were "waiting for
further instructions from H.Q.," meaning AT&T head quarters (see both AttachmentA4
and Exparte Comments ofVanity International under, "Case of 1-800-Tickets").
Jan 12 - U.S. Sprint Submission. Explicit, verbal request for 888 replication ofone of
my 800 fax lines was given to Jeanne Baker in customer service on January 12, 1996
around mid day. She was not immediately clear on what I was asking for and I stated,
"This is not a request for a new number. I'm asking you to protect the 888 version ofthe
800 number I have with you (i.e., Sprint). Do you understand?" Jeanne indicated that she
then understood what I was asking. I went on to say that, "Time is ofthe essence and
today (January 12, 1996) is the deadline. We must get this in today." She hadn't heard of
any deadline, but agreed that she would attend to this at once.
Jeanne returned a written confirmation dated January 12, 1996, at my request, on
Monday, January 15, 1996 in the form of"Request for Toll·Free Number" (Attachment
AS andA6). This Sprint form had no mention of"replication," but neither did the AT&T
form which I knew to be valid. No one at Sprint ever polled us for our protection
requests or communicated any specific deadlines regarding the replications of800
numbers.
Jan 12 - MCI-- Initial Submission. We verbally submitted several prime 800 numbers
for replication, but had no idea ifthey, in fact, would be transmitted to DSMI. No one at
Mel ever polled us for our protection requests or communicated any specific deadlines
regarding the replication of800 numbers.
Jan 12- 18- Researched situation and confirmed that the January 12, 1996 was a
SNAC proposed deadline, still pending FCC approval. I learned that 800 assignment
levels had held around the 90% level and that we would "not run out until June," during a
phone conversation with Michael Wade, president ofDSMI. He had communicated this
fact to the FCC within the last few days. Mr. Wade also explained that the FCC had yet to
grant final approval on the January 24, 1996 launch plan, but that his staffwas ready to
go. I gathered that "the industry" had taken unilateral action to cut offreplication requests
and that the entire SNAC proposal was pending approval.
Jan 18- Sent Exparte Comments to FCC via Fed-X. I asked that the FCC require "the
industry" to abandon the January 24, 1996 launch plan and reopen replication requests to
the unsuspecting, uninformed public. I asked that the RespOrgs be required to advise all
subscribers oftheir opportunity to replicate _. not just their biggest customers -. and
recommended that the new deadlines allow ample time for users to (a) be put on notice,
(b) submit their requests, (c) change to carriers, ifnecessary to protect their interests, and
(d) confirm accuracy ofsubmission (See Exparte Comments ofVanity International for
further details).
Jan 25- Got word on the extension of888 replication requests through Feb 1, 1996.
Once we learned that the FCC had reopened replication, we took urgent action as we, and
others, were only afforded a brief 5 day window to enter requests. Clearly there was no
time to switch carriers ifour present carriers were uncooperative, or confirm the accuracy
ofour submissions. I was astonished that the FCC allowed "the industry" to push this
timetable forward in view ofMr. Wade's findings. However, we were pleased to have even
this briefopportunity to protect the vital interests ofour clients and affiliated companies.
Despite the reopening ofthe SMS database for replication requests, not one ofour
existing carriers advised us ofthis new deadline and only AT&T advised us ofthe
February 10 launch date. We spent several days organizing our submissions and advising
our existing clients ofthis ·'last chance" opportunity. All ofour RespOrg contacts were
unilateral, as we were "polled" by no one.
Jan 26- Faxed announcement orFebruary 1, 1996 replication deadline and
February 10, 1996 881 pre-reservations date to all existing clients. Further, I faxed a
press release to several major publications in hopes that they might provide some publicity
and alert unsuspecting 800 users across America. Press releases went to Business Week,
Crain's Chicago Business, The New York Times, The Chicago Tribune, The Chicago Sun
Times, The Wall Street Journal, The Washington Post, The USA Today and others. To
my knowledge, none ofthese publications covered this urgent matter. Clearly, this
information would have been more warmly received had a press release come from
AT&T, MCI, or Sprint.
Jan 29- AT&T calls about pre-reservations launch, Feb 10. Sharon Renfro, my
AT&T account rep, took it upon herselfto leave me a voice message regarding 888
reservations beginning February 10. There was no mention ofthe new 888 replication
request deadline and, as I later discovered, Sharon had no knowledge ofthe new FCC
deadline or even that AT&T was again taking replication requests. Apparently, AT&T
management chose to disseminate only some ofthe information contained in the January
25, 1996 Common Carrier Bureau memo that reopened replication.
We were neither notified by AT&T ofour right to enter requests nor ofany FCC or
internal AT&T deadlines. We relied entirely on the January 25, 1996 Common Carrier
Bureau memo (Report No. DC 96-3), ofwhich we obtained a copy.
Jan 31- Submitted final requests to Allnet at 7:19 am, MCI at 10:15 am,
ewc at 11:02 am, and AT&T at 3:02 pm. All were initiated by a faxed written
directives (see Attachment A7 for fax log) and followed up by phone calls to confirm
receipt. Each request referenced the relevant section ofthe Common Carrier Bureau
memo stating the February 1, 1996 deadline. All were received by someone within each
organization who took the initiative to foHow-up on my request.
Each directive included a request for written confirmation of(1) "Receipt ofthis request
and, once entered," (2) "Confirmation that each and every number was correctly keyed
into the database, accepted by DSMI, and afforded protection." We further stated that
"accuracy is ofthe essence" and that we must rely on the carrier as we would not be able
to confirm accuracy prior to the FCC deadline ofFebruary 1, 1996 (see Attachment A8 for
a sample directive).
Jan 31- AlinetIFrontier reportedly enten requests but would only confirm verbally.
My conversation was with Carrigan Gatewood, 800 Product Manager, who called early
in the day to confirm receipt ofour faxed directives. She questioned why I was requesting
replications, but agreed to submit my requests. When asked for confirmation in writing she
stated, "If! confirmed everything in writing I wouldn't get anything done around here. If I
trusted that our Allnet requests were in capable hands and went on to other urgent
matters.
Jan 31- Learned ofintemal AT&T deadline ofJan 30. Sharon Renfro ofAT&T
received our directive on January 31,1996. She called back to saythafshe had looked
into this and that AT&T's internal deadline had passed the day earlier, Jan 30, 1996. I told
Sharon I had "no idea ofany other deadline," and needed to check into this.
Jan 31- Learned ofinternal ewc deadline ofJan 30. Ms. Melissa Strickland, 800
specialist, received our directive and advised me that the Cable & Wireless' internal
deadline was Jan 30, 1996 and that she had already submitted their requests. No longer
surprised, I accessed that the problem was that the replication requests were submitted via
diskette and shipped overnight. The RespOrgs had assumed that DSMI was to have
requests in-hand by February 1, 1996, so they backed out 2 days for the typing and
shipping. The 5 day window had now become 3!
Jan 31- Called the FCC regarding the February 1, 1996 deadline and was told that
tbey were leaving this interpretation to DSMI. I spoke with Irene Flannery ofthe FCC
and explained the situation, specifically that we submitted our requests January 31, 1996
but that some RespOrgs were not accepting them due to their interpretation ofthe
deadline. She checked into this and advised me that the FCC would defer this matter over
to DSMI.
Feb 1-CaUed DSMI and confirmed they would accept submission sent Feb 1. Mr.
Anil Petel spoke for DSMI and allowed me to refer his name to the RespOrgs for
confirmation. I believe he, too, spoke with the FCC to confirm that DSMI had authority to
decide this matter. The language read, "pass these requests onto DSMI no later than
11:59pm., eastern standard time, February 1, 1996." Mr. Petel's interpreted this to mean
that the RespOrgs needed only to Fed-x or postmark their requests by the deadline, not
have them in handby then. In my conversations with Mr. Petel I also confirmed that
DSMI had no authority to accept my requests directly. I, therefore, had no other option
but to rely on my current RespOrgs for the submission. Further, the submittals had to be in
an industry defined format for which I had no model.
Feb 1-Conference call with AT&T communicated DSMl's position on the deadline,
as relayed by Mr. Anil Petal. AT&T still had time, at this point in the day, to prepare our
submission. Mr. Beal confirmed the FCC deadline directly with Mr. Anil Patel, but
advised me that only Jonnie Bond oftheir Cleveland office could put the submittal in the
required format. They were waiting for her to call. Having no word by 5:03 p.m. eastern, I
faxed a note to Ms. Jonnie Bond c/o Sharon Renfro stated that we have two choices, (1)
confirm the submission or (2) write a letter acknowledging my request, stating the reasons
AT&T is unable to comply, and state AT&T's willingness to submit after the deadline if
allowed by DSMI (see Attachment A9).
Feb 1-ewc successfully entered requests and confirmed verbally. This was a
supplemental submission, as they had already send a diskette Jan 31, 1996. Subsequently,
I've checked several ofthe numbers and, thus far, have found no inaccuracies.
Feb 1- MCI succasfully entered requests and confirmed verbally. This was done via
an electronic submission planned for late evening February 1, 1996. I was, however,
astonished to learn that no one in their 800 customer service group, including Nancy Lingl
and Jodie Bequette, seemed to know nothing about this process. It took a series ofphone
calls to explain my needs until, finally, I had an after-hours voice message that my numbers
were being included that night's transmission to DSMI. Subsequently, I've checked several
ofthe numbers and, thus far, have found no inaccuracies.
Feb 1- AT&T refused to enter requests. Despite the personal efforts ofMs. Sharon
Renfro and Mr. Brad Beal, AT&T 800 specialist Ms. Jonnie Bond refused to
communicate our January 31, 1996 requests to DSMI claiming that we entered our
request after their internal deadline, January 30, 1996, ofwhich I was never advised. I
was unaware ofthe outcome until late the next day, February 2, 1996. At that point, Mr.
Beal suggested that he could only help me get the numbers back on February 10, 1996. I
asked Mr. Beal to write a letter summarizing the events that transpired (Attachment A10),
as I had not had so much as a message from Ms. Jonnie Bond.
Feb 9- Caned Mr. Brad Beal to discuss launch situation. Mr. Beal knew ofno
recourse other than attempt to secure the numbers at the launch. Mr. Beal wrote a note to
AT&T's 800 reservations group asking that our 888 requests be placed at the front ofthe
list. He left early, however, and I was unable to reach him to discuss details, despite
repeated calls to his direct line.
Feb 10--12 midnigbt, I call AT&T, explain the situation, and ask that some o(my
Dlost vital numben be secured immediately. The customer service representative said
she could only pass my requests along.
Feb 12- We discover AT&T failed to take any action. Having checked several ofour
numbers, we noted that those requested were still not reserved and other numbers were
on-reserve by various carriers.
Feb 12 - I discover that key numbers are on reserve by othen. This included one of
the AT&T numbers I specifically requested Saturday night and the Sprint number that, up
until now, I had assumed was protected. Our unprotected Sprint number was on-reserve
by Allnet.
Feb 12- I realized tbat Sprint/DSMI failed to execute our January 12, 1996 request,
despite tbe ract that the deadline was extended until February I, 1996. Since the
number was on reserve by others, I didn't call Sprint; it was already out oftheir control.
Feb 12- I discuss with Bard Beal ofAT&T and he reports that his efforts were
overruled and my requests for 888 numben must go to the end ofthe line like
everyone else. I was afforded no priority despite the sequence ofevents that led to our
AT&T numbers being unprotected.
Feb 12- 19- I a.ked Allnet, Ameritech and ewc help recover some ofthe numbers
ATAT failed to protect. To this date, I know ofno effort made by AT&T to help.
Feb 19- I discovered that Allnet and DSMI failed to protect one ofour numbers
Feb 21- I further discovered that Allnet and DSMI failed to protect all ofthe
numbers on one specific account. Dozens ofnumbers were left unprotected by this
error.
Feb 21- I advised ABnet ofthe seriousness ofthis matter. In my discussions with
Elaine Wright on another matter, I advised her that none ofthe numbers on our one
account were protected. I told her this was a serious matter and asked her to pass this on
to Carrigan Gatewood, the 800 specialist who processed our requests. No one called me
back and I was unable to call them during the next two days.
Feb 23- Confirmed that no mechanism exists to correct carrier screw-ups. Mr. Anil
Petel explained that DSMI would do anything they are asked to do, but there is currently
no way to correct RespOrg or DSMI mistakes.
Feb 26- Our 888 number unprotected by Sprint now shows "working" status, but
Alnet may have unilaterally activated. We donlt know what Allnet communicated to
the customer who, presumably, reserved our number-- the number that Sprint failed to
protect. We do know for a fact that Allnet took unilateral action to activate several new,
unrelated 888 numbers we had them reserve for us, and probably did the same with others.
We found this odd, although we have no objection to our new 888 numbers working next
week. However, ifour unprotected number can not be reclaimed because it is now in
"working" status, Allnet should first be suspected oftaking unilateral action without
customer directives. They certainly did so here.
Based on the forgoing declaration I request that the FCC direct DSMI to reclaim the
attached list (Attachment Bl and B2) of888 numbers and mark them as "unavailable," as
requested. These should have been just as "unavailable" on February 10, 1996 as, say,
888-356-9377, 888-265-5328, and 888-225-5288 (i.e., 888-Flowers, 888-Collect, and
888-Call-ATT), pending FCC ruling.
Vallity International
2020 Lincoln Park West
Suite 161
Chicago, IL 60614
(312) 871-6565 Voice
(312) 871-3291 Fax Loren C. Stocker
Interactive C8'IIBrandf'M)
8rIdfJing the~.......lIlriflllng £ T8lecom
160 East 26th Street. PH6E
New York. NY 10010
(phone) 212814-7210
(fax) 212 184-2714
(emaH) Producer.pipeline.com
January 11. 1186
FLASH MEMO
I 8pOIca with ...Wade from OSMI today.
"...tOO riiplk:Miana requeet1J ttl. tl'MJ Re8p Orge 8ubmitted 8S Y factor fil88
aNI the~...onff numbers for wI\icI\ tomorrow is the deadline· are to be
crad.d _ Rot available- for the general 888 relefJ5e. and early reservation
Pf'DCIt" - which st.arts January 24.
Rap Orgs were notified by written report on January 5 of which of their
eubml.,i0n8 were accepted - and which were not. Could have been rejected for
coding error, whatever.
lbere Is otMouIIy plenty 01 room for Resp Orgs wdisa'eUon". and for those
..........bIni,.ions that cldn't get in on..fnt pan to fall thru the crBCks.
There is no reporting processing between OSUI and users - only OSMI and
,,"p Orgs.
I.Mae that you cal )lOU'" Res.p Orgs tomorrow and request a written copy of
ntpOI1a pertaining to your numbers.
IC8ep in mind. th_ num........ coded for ut-aide, but not for _eignment to
you - not unit mandated by the FCC rUlemaking. Mike spoke with Mary
DltLuClllF'CC )'......,. She said she knoMs ..rulemaking is 8 top priority.
M*nawI8dged that its front burner~she's "working on it." Gave no indication
of when the rutem_ing is to be released.
Attachment At
IOO-NUMBER REPLICATION DEADLINE NEARS
By Lynn Jones
TIme is running out for direct marketers to reserve the 888 equivalent oftheir toll-free 800-
number.
On Jan. 24, Database Service Manalement Inc.? the Piscataway. NJ-based company designated by
the Federal Communications Commission to manage the country's 800-number database, will
begin filling requests for new 888 numbers.
At the same time, the Federal Communications Commission wu reported to be preparinl a
~on the entire IOO-number replication issue ? but those reports could not be confirmed
? cte.d&ne,. Meanwhile companies have apparently started the 800-number replication process in
the absence ofany clear regulations.
The new 888 toll·free number was aMounced late last year when industry officials detennined that
available 8oo-numbers would be depleted by early 1996. The introduction of888 adds more than 7
million toll-free numbers to the till.
But the new three-<tisit code does not come problem-free. "Businesses who have not been advised
about and guided through the replication process by their carrier are losing out on an
Ullpl'eCedeated opportunity to protect their interest," said Judith Oppenheimer, president of
telemarketing consultancy Interactive Ca1tBrand, New York.
Companies that do not replicate, Oppenheimer noted, run the risk ofhaving to pay for misdials
from people who intended to dial an 888 number but dialed an 800 number by mistake. Also. a
company's reputation is at risk ifconsumers mistake a number to be that ofa more well-known
company.
To date, lonl distanee carriers and other companies that reserve phone numbers known as
I.apOrp (Responsible Organizations) have asked DSMI to replicate or set aside roughly 219.000
I88-IaJmber equivalents. r1J :/'-I?tf<,.
9~9(t
rl,~<]0,.)
:$~fAfJt I.. t)fl
Jd
~I A rfc
a
pr"Q'
Attachment A2
JA't 1S'961e~28AI'l An WJRTH OHIO
F .1
4J
/-/~-16
fAX5
1
HEET
FROM: 0~
AT&T
C,::>aaercial Kark.eta
..
'M?.:.a4d:~i7/3;k'l1 .
?MOII-l-.
~
__ftc+T,,:~s1
Attachment A3
~""'-,.
"tl/lS/l'" 11:59 2014891&&1
'" ??__.,_._~_,..-_---ZORN....-:.-;.CCJM.tlICATI~
pta 01
8
00
-.s;r~-79
0
7 - Cc..)l{'1)~O
~~~r.(
/?"/LI/Alfa7R1i'~I-I.~·,;'
121l/l/~_2?~It'__
....
$A.c.IMJSi!h/~t....Df.~l,.J~A?to----:::-...:.-....-.,.:.~-:.:-;
PtJOF/~'f4)IAJ1't«AJ~lOwf/ 1171- (=61( Fi);CrHtVlI~r..t-~
MtO".,.-.....~Q ·
AvQ-~~77C.,JS
fA~tC;rl.t.-.
DIll;
.-.2-1....IS~~t_ 3'1J.. -.s38 7 R...,-
ue
s-1''''-' -"I'
f.:t_C~J<JdJ~'&-l)q.,.J~()~;47=>'- 1- J).--; .
~lluJf4)«)~8'¢o ? _ -.c.
. -~-:
~
'fOr&.... 'IJJdL.
.....~,,~t:M;.tdQ__
44ft?~~~z;,~dr.' ..-
-= : . : =-Ql~Z~:i;rt'~_~.
._-----
------_..---_._-_.._ ..._" .....
---_.-----:-----_.--_ ,....?
_____..J.~"....J.~~~
:::-~:~::--=~~
... ..
-_.._-_.
------_._--_..- .
Attl(!hment A4
.--~.......~...~...,~littUflClt t":'.~;
.1/1~10131 SPRINT BSG GOLD~312-871-3291
FAX COYEft LETTER
NO.39? P901/002
MOfII:
.. s:iJme.+~~
~,MIl[
CONTAQTt:'--- _
.:
OR 214-801-1078
0GI1fEft't:....~__
Attachment AS
01/15/96 10:32 SPRINT SSG 00...0 -+ 312-871-3291
? Sprint.
Business
REQUEST FOR
TOlL FREE NUMBER
I~and..,.....1bI".....n~s)JeSeMldfOrnteltl.....my~lindIortWfCOl~n"*
.....""8pMI~..0Dmpuy LP??? OellMllr.~edPartNnh(p (Sprinij, will tl'deIWW kI pnMde "'1$AIle
..........,.1)to..... It.s....guaranIeed" *l*SfiCrunbefts)~.nor.~lime U wfIich""'U
......,..wi! be instDlIed a1wJIot opeabIe.
I.....~and 1IlP'IIIlI'"~uNof tNsM.-fU'IIbeI{I)IMIcn my""-ls~~~MIl balcnfNJ
.....~Is~18dIe II rrrt OMI riak IWId Ihtrtby hold SPIin' hInnIeIa trom~and III IIbIIIty ........." tram my
............or aIw UH of~numt.{?? priorIe IUClh ftlIaI&aIiOn. opnbilt)'. and end~.
MDnta-r. I undint8nd Md...'*N bar*. ,...n or he» of an loll Ftee number nHNed for or aaigned \0 Me is
unUhc*ad and...flat 10 bQI'Ier. reset DI trade my ltX1 Free numtM.
"
._--'..~--'------
._--"-~--"'-----
---"----'------
~._~---~~._-_.,-----
---"----,_.__.._---
--_.----'~--,--
--_._--_._---'------
ADDRE882:01\;""--~~-~-_
Cl1'Y: Cb"¥~---ST:.I1- ZIP: foorc 11:...__
PAlMAAYCON'TACT: PHONE: (__~)__ ,__" _
=:.::.us~_~E,(__->._~__ - i
IAlES AEP:~_.SSN; "_~._
SAlES REP PHONt!: <__-J " _
CADER OONTACT: or-M'""- PHONE: <-- _ --....) 4 _
ORua. ADlMLlltSlAAllON~:
!N1l:AEtJ8V:_~__~~__~-_
.L..__-~_=_=_==OA:=J'E~;- Attachment A6
.AiJV·-'
Jan 30, 1996
11:41pm Z'
Fine 2 Complete Ameritech Wisconsin
Jan 31, 1996
12:~,end
Fine 1 Complete Harry Olsen
Jan 31, 1996 :19 Send Fine 5 Complete Allnet/Frontier Marketi
Jan 31, 1996send~Fine5 Complete Allnet/Frontier Marketi
Jan 31, 1996 0:15a end Fine 5 Complete MCI-- customer Relation
Jan 31, 1996 10:,4_~sendC~~ne1 Complete Mark D. Olson
Jan 31,
1996~F1ne
6 Complete CWC-- Customer Service
Jan 31, 1996 : pm Recv Std 1 Complete
818 331 1111
Jan 31, 1996 1:13pm Recv Std 3 Complete 614
766 7830
Jan 31, 1996 1:17pm Send Fine 2 Complete AT&T-- Wisconsin
Jan 31, 1996
1:20pm SendF~~
2 Complete WEPCO
Jan 31, 1996 1.~Fr.. 3 Complete Allnet-- Select Service
Jan 31, 1996 3:02pm nd I Fine 5 Complete AT&T Sales
Jan 31, 1996 ·22 - Send :tt.s Fine 4 Complete AT&T Sales
Jan 31, 1996 : 07
1/Fine
1 Complete ATT-- Customer Assistan
Jan 31, 1996 :44pm
sen~Fine
2 Complete Zorn Communications
Jan 31, 1996 8:44pm
Recv~'Std
1 Complete VIA FAX
Jan 31, 1996 9:27pm Send Std 2 Complete Mark D. Olson
Jan 31,
1996 11:~4p'mSendS~d,2 Complete Mark D. Olson
Feb 1, 1996Cn:01~selrct·j:;~F1n#<;72 Complete AT&T Sales
Feb 1, 1996 8155am Send Fine 3 Complete
Gottlieb & Associates
Feb 1, 1996 12:49pm Send Fine 6 Complete
CWC-- Customer Service
Feb 1, 1996 1: 47pm Send Fine 6
Complete CWC-- Customer Service
Feb 1, 1996 1:52pm Send Fine
5 Complete MCI-- JODIE BEQUETTE
Feb 1, 1996 2:24pm Send
Fine 4 Complete MCI-- JODIE BEQUETTE
Feb 1, 1996 2:29pm Send
Fine 4 Complete MCI-- Customer Relation
Feb 1, 1996 2:36pm Send
Fine 2 Complete Zorn Communications
Feb 1, 1996 4:01pm Send
Std 1 Complete CWC-- Customer Service
Feb 1, 1996 4:02pm
Send Std 1 Complete
MCI-- Customer Relation
Feb 1, 1996 4:03pm Send
Std 1 Complete
MCI-- JODIE BEQUETTE
Feb 1, 1996 4:06pm
Send Std 1 Complete
AT&T Sales
Feb 1, 1996 8:57pm
Send Std 2
Complet.e Interactive CallBrand
Attachment A7
Attn: Ms. Jonnie Bond
c/o Sharon Renfro
Re: Replication request
-I /
~~'!£,
Thank you all again for all your efforts. At this point, we have two choice:
* If you're able to sUbmit, please confirm that you've done so.
* If not, please write a letter stating the following:
Recipt of my request yesterday
Reason you are unable to comply
Willingness to submit early next week, if granted
permission to do by DSMI; and that you have no objection to
us doing on our own by seperate submission (I realize that
is against the "rules").
The key here is that WE made the deadline, but logistic got in the way.
Perhaps, DSMI will add our requests given the circumstances.
I now have to leave the office. Please fax reply to 312-871-3291.
Best Regards,
Loren
Attachment A9
January 30, 1996
To: MCI Customer Relations
Re: Replication Request
Corporate ID #
Following is a list of800 numbers we would like you to protect. I apologize that this is in
your hands with less than 2 business days to go until the FCC deadline, but as you may realize
no one at MCI had ever informed us ofthis process.
As our agent and RespOrg for the attached list of800 numbers, we hereby request that you
enter "protection requests" for the 888 version ofeach ofthese 800 numbers into the
national SMS/800 database. This action will mark the 888 version ofthese numbers as
"unavailable," pending the FCC decision on replication. Given that the deadline for such
action is Thursday. February L 1996 per REPORT NO. DC 96-3 (applicable section follows),
we request that you enter these at once.
This request for protection is a matter ofvital interest to our firm and we require that you
send full, written confirmation of:
(1) Receipt of this request and, once entered,
(2) Confirmation that each and every numbers was correctly keyed into
the database, accepted by DSMI, and afforded protection.
We understand, ofcourse, that the FCC has yet to rule on whether we will be afforded right
offirst refusal and, ifso, whether there will be a cost Further, we understand that Mel can
not guarantee that the outcome ofsaid ruling will be in favor or replication. We only ask that
you protect our interests pending this decision.
We plan to doubled check the status ofthese 888 numbers by independent means, but will not
be able to do this prior to the FCC deadline ofFebruary 1, 1996. Accuracy is of the essence.
Please ensure that these requests are entered correctly and that any mistakes are uncovered
and corrected at once.
Please fax confirmations to our office at 312-871-3291 as soon as they are available.
Attachment A8
fEB 19'96 132: 39PM ATT~THOHIO
OATs.T
Fib DU9S
P.l
1.GnII Stoeka'
IDEDdS,.-.
2000 H.1t.8dI1I
CbkaplL60614
Dar Mr. StoebI':
TID It'tter" to darIft tI.dIalaot~recardIDI yow100 D1UDben tIM r"reSoD
or..888 ftIlity uumben. OD MODday JUl19t1ll996 Shatoll RtId'ro ATilT~mer
terYb nV' left.voke 1lU1II .......for Lol'ell Sloc:br stat1ac that tile most nceut
lDftmDadoD recard1D1888 Ilcambtts Js that the rela"Yadou ,..ould begIa InF~bUt
woald DOt be limed to eust.)mtrt till March 1.
Mr. Stocker faDd....CO"..IDI!IDO mel .l1st or 888 rtqutD 0111-31·96 aIoq wtth ?
cl1pp1q satlDe tile FCC '"acl1iDe for 888 requests wAS to be 02-1-96 at 11:59 p..-. Sbaroll
thea. delivered the 1bt to Jolm Formal who is our 800 spfdallst. Jolm It8ted that tIla AT&T
deN'JCnt for npnaiollreqatstl was 1-30-96-
SharoIl:R.eD1ro theDtaJIl~Mr. Stockel' to aplaln the sltuatlou with her rapenllorBrad
Beal OD theIlIlt with bet. Mr. Stocker providtd US with the aa.m.e ofMr. PatEl at DSMI to
CDIltac:t ID an etrort to rlllene the nmnbers after the AT&T deadllntbut 'beIon the F.C.C
dadHnL
Upon aJ1IDI Mr. Pliteille erpIaIned that be wuld not procfAI tb8 numbers UJIIesI they
"ft'elormatted OIla.JI*Wsprad sbecL Mr.Pate1 abo explaJDN to Mr. StocUrud Mr.
Beal tIWD6MI wouIcl accept the replicadoD nquestilO 10Dl at they wen: aeua by die
deadUDe 0102-01-96. Tbk IPft&CJsbltt coald bt produced byJ~In our QeveUd
otJb. Mr. Beal eaDecllollr_ and left bar ? voice man DIfSSI&I aplafDlag our sltuadoIL
JobImie eaIIetl budat1IpIIt.x:lmlRIy '-:00 p.m. to upIaiD that AT&:T could DDt IIIId out the
__fw the 888 Dum...beeaUR ofthe kplsdpDlat10dS whJch we may Incur from
~the nq1lllltlafter our cJeeefllne.
At thls point In timeAT~kThM made all effort to relIlr'Ve the lost 888 Dumbers for Mr.
$todm-however this adIoli will MI~teethaitb~Dmnbers wiD be raerved for hfs
"Mia...
Attachment AIO
ALLNET/FRONTIER
233 -6463
233 -8783
353 -5835
353 -9772
385 -5266
385 -5538
426 -8725
434 -8626
463 -6869
463 -9426
465 -8967
536 -6927
568 -3233
583 -8426
642 -7683
646 -4353
664 -6785
667 -9343
732 -8774
735 -3774
787 -3725
794 -7724
843 -3655
868 -2634
878 -3233
924 -8673
924 -8673
932 -7328
933 -6312
SPRINT
624 -6286
ATTACHMENT BI
AT&T
286 -7688
368 -6973
438-7378
552 -6222
632 -7639
646 -4636
774 -2353
932 -4626
947 -2667
245 -5262
247 -7245
365 -8624
367 -4467
466 -2297
494 -4832
826 -4895
843 -4622
233 -7296
241 -7499
243 -7328
243 -7742
273 -9296
334 -4443
367 -6394
732 -5767
732 -5768
244 -3732
438 -4825
463 -9426
586 -4532
438 -7446
726 -8274
772 -2336
826 -4893
223 6463
742 -8363
746 -6346
872 -4792
928 -3786
AITACHl\fENT B2
Exhibit 2
DECLARATION
Robert H. Tate, declares under penalty of perjury as follows:
1. I am President and the owner of Genesis Two, Inc.
("Genesis"), an Oregon corporation, with offices located at 1089
Medford Center, Suite 247, Medford, Oregon 97504.
2. Genesis owns and operates a cut flowers and gift delivery
business under the name of 1-800-BLOSSOM, serving customers on a
nationwide (all 50 states and the District of Columbia) and
international basis. In contemplation of commencing its flower
delivery business, Genesis purchased the number 800-256-7766 (800
BLOSSOM) from a Louisiana tire company, paying several thousand
dollars for the number to be assigned to Genesis, in addition to
other start-up costs for the business. Genesis commenced its 800
BLOSSOM flower business on September 1, 1995. Genesis has filed
with the United States Patent and Trademark Office, an application
for registration of the mark 800-BLOSSOM and an intent-to-use
application for registration of the mark 888-BLOSSOM. Both
applications are pending.
3. In early December 1995, I contacted Sprint with the
intention of transferring the 800-BLOSSOM account to them and to
obtain an additional 800 number. The 800-BLOSSOM account carrier
was LDDS, the carrier originally selected by the tire company.
Unhappy with LDDS' inattentiveness to my prior calls inquiring
about pricing for dedicated service and caller ID services for 800
numbers, I contacted Sprint. In requesting a new 800 number, I was
informed by the Sprint representative that there was a moratorium
on the issuance of new 800 numbers but that in 1996 Sprint would be
- 2 -
offering a toll free 888 code to augment the diminishing available
800 numbers. I inquired of the Sprint representative as to whether
Genesis could reserve the number 888-256-7766 (888-BLOSSOM). I was
informed by the Sprint representative that Sprint had previously
collected a list of customers that were interested in reserving 888
toll free numbers which corresponded with their respective 800 toll
free numbers but that the list was being compiled for the purpose
of informing the Federal Communications Commission (I1FCCI1 or
I1Commission
l1
) as to the number of 800 customers interested in
reserving their corresponding 888 number. I requested that Genesis
be added to the list. The representative indicated that the list
had already been submitted to the FCC and that Sprint was no longer
adding names to the list. Prior to my conversation with the Sprint
representative, I was not aware that the FCC had initiated a
proceeding concerning the creation of an 888 toll-free service.
4. On the same day that I spoke with the Sprint
representative, I contacted the FCC and spoke at length with Brad
Wimmer, an FCC attorney. The telephone call lasted approximately
30 to 40 minutes. I relayed to Mr. Wimmer my conversation earlier
in the day with the Sprint representative and my concerns of being
potentially excluded from the 888 reservation list. Mr. Wimmer
explained to me that the FCC had not reached any decision in the
888 matter nor instituted an order with respect to the
implementation of the service. Mr. Wimmer further indicated that
if the carriers were compiling a list of customers interested in
reserving numbers in the prospective 888 service he was not aware
- 4 -
6. Following up on Mr. Wimmer's suggestion, every week or two
weeks during the period of early December 1995 and through January
26, 1996 I contacted several carriers including my own carrier,
LDDS (who I contacted on approximately six occasions), to inquire
about the status of reserving an 888 number.. I was informed each
time that I called, that 888 numbers could not be reserved as yet,
as the FCC had not yet issued its decision. In each of the calls,
including my calls to LDDS, I also inquired about reserving the
corresponding 888 number to 800-BLOSSOM and I was routinely
informed that lists were previously compiled and that Genesis'
request to reserve 888-256-7766 could not be added to the lists
since the lists were cutoff and only compiled to inform the FCC as
to the interest in the reservation of an existing 800 customer of
a corresponding 888 number. The carriers also informed me that the
FCC had not reached a decision relative to the 888 service but that
a decision was expected in March, 1996. At no time was it
portrayed to me by any of the carriers I contacted, including
Genesis' carrier, LDDS, that the previously compiled lists would be
used or utilized as the list for the inclusion of numbers to be
protected once the Commission issued its decision.
7. Based on my conversation with Mr. Wimmer I expected that
the FCC, which had not yet issued a decision in the 888 service,
would not utilize the reservation lists of vanity 800 subscribers
seeking to replicate their number in the 888 service previously
compiled by the carriers. As previously stated, such lists I had
been told by the carriers were already cutoff by the carriers (and
- 5 -
not by any FCC imposed deadline) and were purportedly compiled by
such carriers for the express purpose of informing the FCC of the
interest of existing 800 subscribers in the proposed 888 service.
8. On January 26, 1996, unaware of the Commission's release
on January 25, 1996 of its Report and Order in the 888 toll free
service matter, I continued checking with carriers as suggested by
Mr. Wimmer earlier. From my horne I contacted AT&T to inquire if I
could reserve an 888 number and was informed that I could not. I
also inquired if my 800-BLOSSOM number could be protected from
someone else reserving the number with an 888 access code. The
representative's response was that no decision had been reached by
the FCC with respect to 888 service and that since the FCC had been
on a lengthy furlough, it was backlogged. According to the
representative, AT&T had been informed by the FCC that it would
delay its decision regarding the 888 service until April. The AT&T
representative appeared intelligent and well informed with respect
to the 888 service and consequently, I did not immediately double
check this information with any other carrier or the FCC.
9. In early February I was scheduled to leave the country
on a two-week trip with my family and in anticipation of this trip,
on February 5, 1996, I contacted AT&T again and spoke with a
representative named Scott. I again inquired about the ability to
reserve an 888 number and was informed that I would not be able to
reserve an 888 number until February la, 1996. I also inquired
about replicating Genesis' existing 800-BLOSSOM in the 888 service
and was informed for the first time that the period for reservation
- 6 -
had passed, that February 1, 1996 was the deadline to request
protection of an 800 number. Needless to say, I was taken aback by
this information and cancelled my travel plans. My family has
since returned from the trip I was to take with them.
10. After my conversation with AT&T, I immediately contacted
the FCC and spoke with Ms. Irene Flannery (212/418-2373). I
explained to Ms. Flannery that in my prior call to AT&T, I was
informed for the first time that the period for seeking to reserve
my existing 800-BLOSSOM number on a replication list in the
proposed 888 service had passed without my company or me being
notified or contacted by Genesis' carrier or its "RespOrg" (a term
I was not aware of previously). Ms. Flannery stated to me that the
FCC's order speaks for itself and that she would not advise Data
Management Services, Inc. ("DSMI") or a Responsible Organization
("RespOrg") one way or another on adding my request to the
replication table. Ms. Flannery further stated that the FCC made
its decision to extend the polling of customers to be added to the
replication list for one week since the SMS/800 Number
Administration Committee ("SNAC") had assured the FCC that the
carriers had adequately polled all their customers over the
previous three to four months. I informed Ms. Flannery that based
on my experience of having never been notified or polled by
Genesis' carrier and despite repeated efforts on my part to be
added to a list which I was consistently informed was not an FCC
authorized replication list and was being compiled only for FCC
informational purposes only, the SNAC assurance was false and that
- 7 -
a lot of people will be upset. I asked Ms. Flannery if there was
any way for the FCC to authorize an addition to the list. Ms.
Flannery reiterated that the order speaks for itself and that the
only reason the FCC established the February 1, 1996 deadline for
replication set asides was to permit the inauguration of the 888
service on March 1, 1996, the date demanded by the carriers. She
also indicated that DSMl would need the period of February 1st to
February 8th to complete the replication list in order to remove
the numbers which will be "unavailable" from all other numbers
which would be available for early reservation scheduled to
commence on February 10th. Ms. Flannery indicated that I should
contact DSMI for further information.
11. After my conversation with Ms. Flannery, I immediately
contacted DSMl and spoke to Michele Wade. Ms. Wade gave me the
primary contact names of major RespOrgs. She also informed me that
DSMI could not accept any other requests for being included on the
888 replication list. I informed Ms. Wade that it was critical for
Genesis to have its 800 number included on the replication list.
Ms. Wade apologized but stated that unless the FCC directed DSMl to
include Genesis 800 number on the list, DSMl could not add anyone
to the list.
12. Following my conversation with Ms. Wade I contacted MCl,
a RespOrg, and spoke with Ms. Linda Opacic. I had been informed by
Ms. Wade that Ms. Opacic was the head of SNAC. Ms. Opacic
conferenced Ms. Flannery from the FCC. Both Ms. Opacic and Ms.
Flannery took the position that the FCC's Order does not allow a
- 8 -
RespOrg to submit a request for replication beyond the February 1,
1996 deadline. Ms. Flannery further stated that the FCC would rule
on a request from Genesis to be added to the list but that she
doubted if a RespOrg submitted a request to DSMI, DSMI would accept
a request to add a number to the replication list. Ms. Flannery
reiterated that the FCC Order speaks for itself and that the FCC
would probably not alter its decision. I then requested Ms. Opacic
to prioritize my request for 888-256-7766 so that when the early
reservation period opened on February 10, 1996 at 12:01 EST, it
would one of the first requests made. Ms. Opacic informed me that
I would need to speak to Larry Lee at MCI. I placed a call to
Larry Lee and left a message for him to call me.
13. At the end of my conversation with Ms. Opacic and Ms.
Flannery, I contacted Sprint and spoke with Ms. Susie Cotter. I
requested that Sprint prioritize my reservation request for 800
256-7766 and she informed me that Sprint would and that Sprint
would contact the company that had the reservation request for the
number to notify them that Sprint was nullifying the request in
favor of Genesis' request. Ms. Cotter indicated that Sprint was
sympathetic to customers like Genesis that had not been notified of
the FCC's "hasty" decision. Ms. Cotter requested proof that 800
256-7766 belonged to Genesis and I provided it.
14. Immediately following my call to Sprint, I called Sonja
Coburn with LDDS, Genesis' carrier for its SOO-BLOSSOM number, and
spoke with Ms. Coburn's assistant Laurie Whitten. Ms. Whitten
informed me that LDDS initial replication schedule was as follows:
- 9 -
First Cutoff: November 30, 1995
Second Cutoff: January 5-12, 1996
Third Cutoff: January 25-February 1, 1996.
Ms. Whitten stated that LDDS had approximately 10 to 15 customers,
who were not notified by LDDS and had become aware of the February
1, 1996 replication deadline. I informed Ms. Whitten that LDDS
needed to place Genesis on the replication list. Ms. Whitten
indicated that LDDS was working on submitting requests to DSMI that
LDDS received prior to the February I, 1996 deadline but which LDDS
did not timely submit to DSMI, however, I would have to speak to
Sonja Coburn concerning this matter. I requested Ms. Whitten to
prioritize my request for 888-256-7766 and place my request to the
front of LDDS' requests for submission on February 10, 1996.
15. At approximately 5:45 p.m. P.S.T. on February 5, 1996,
Ms. Opacic from MCl left a message for me that MCl already had a
reservation request for 888-256-7766.
16. On the morning of February 6, 1996, I called Michele Wade
at DSMl. I requested to be provided with a complete listing of all
RespOrgs so that I could notify them to reserve 888-256-7766. I
also requested the necessary information to permit Genesis to
become a RespOrg by Friday, February 9, 1996. At this point, I
felt that becoming a RespOrg myself may be the only way I would
have to successfully access the number, notwithstanding my
understanding that the biggest RespOrgs utilized sophisticated
equipment which gives them an advantage over the smaller RespOrgs
in securing reservations. Ms. Wade indicated that it was possible
- 10 -
to become a RespOrg by Friday, indicating that I needed to complete
an application and that I should contact Number Administration
Service Center ("NASC") immediately to set up access so no problems
would arise once the application to access the system was approved.
Ms. Wade indicated that the most difficult part of the process was
getting on line once the application is approved. Ms. Wade
provided me with NASC's number.
17. [As part of the application process to become a RespOrg,
Genesis was required to secure an insurance binder. I was in
Portland, Oregon when I became aware of this process, ready to
embark on my scheduled trip, and from Portland I contacted two
insurance agents to work on putting together a $2 million dollar
binder. The binder was air-expressed from an agent in Medford, I
picked it up at the airport counter of Horizon Airlines and went
from there to catch a red-eye flight that left Portland at
approximately 11:35 PST time so that I could arrive in New Jersey
on the morning of February 9th at the offices of DSMl.]
18. Before I contacted NASC following my call with Ms. Wade,
I made a call to MCl and spoke with Ms. Opacic who indicated to me
that if I was successful in having MCl' s Larry Lee prioritize
Genesis' reservation request and honor it over the request Mcr
previously received, she would not override his decision.
19. After my call with Ms. Opacic, I contacted NASC and spoke
with Keith Meyer. Mr. Meyer explained the proposed reservation
process, including how the prefixes would be released during the
10-to-15 minute period after 12:01 a.m. on February 10, 1996. Mr.
- 11 -
Meyer indicated that I could call him in order to determine at what
precise time the 256 prefix would be released. He further
indicated to me that he, along with three to four other operators
would be typing in the prefixes by ranges, releasing them over the
10-to-15 minute period. In order for him to assist me, Mr. Meyer
informed me that I needed to complete the RespOrg application
process so that I would be provided with a logon code. He also
informed me to speak with Bernadette, in order to get a tutorial
code to test the system and to familiarize myself with it since new
users have a more difficult time accessing the system. According
to Keith Meyer, Bernadette handles Keith's requests to submit
requests for logon codes to Tommy Owens of the NASC.
20. I immediately spoke to Bernadette at NASC following my
discussion with Keith Meyer. I requested her to submit my request
for a tutorial logon and smart card logon in anticipation of
approval of Genesis' RespOrg application. I informed her that I
did not intend to access the live database system until Genesis'
application was approved and that I would return the tutorial in
the event Genesis' application was not approved. I explained that
it was critical that I be able to access the database after
midnight on Friday without any problems and that I was not asking
anyone to "break any rules" since I was only asking to access the
tutorial database so I could familiarize myself with the system.
Bernadette informed me that the NASC would not permit me to access
the tutorial database or any other database until Genesis'
application was approved.
- 12 -
21. On the afternoon of February 6, 1996, I contacted Johnni
Bond of AT&T requesting that AT&T preempt any prior requests for
888-256-7766. Ms. Bond indicated that my request would be nearly
impossible. It would require contacting all AT&T sales
representatives as AT&T was not maintaining a centralized database
for 888 reservation requests.
22. Following up on my conversation with Laura Whitten of
LDDS on February 5, 1996, I contacted Sonja Coburn of LDDS on
February 6, 1996 to request that LDDS request DSMI to place
Genesis' 800-256-7766 number on the replication list. Ms. Coburn
stated that the replication request deadline had passed. I
inquired about the status of the customers who had timely submitted
requests to LDDS which were not timely submitted by LDDS to DSMI.
Ms. Coburn said Genesis did not qualify for that submission list.
She indicated that she would speak to LDDS legal counsel concerning
my request to have a priority reservation for 888-256-7766 upon the
commencement of the February 10, 1996 reservation period. I was
never informed whether Ms. Coburn and LDDS were successful in
getting customer requests on the DSMI replication list after the
deadline of customer requests which had been timely submitted to
LDDS but were not timely submitted to DSMI by LDDS.
23. On the morning of February 7, 1996, I contacted Lynn
Sawicki of MCI, the person Larry Lee of Mcr had passed Genesis'
priority request on, to request that MCI prioritize Genesis'
request for 888-256-7766 (notwithstanding the fact that Mel had
already received a reservation for the number). Mr. Sawicki
- 13 -
indicated that he would speak with Mel's attorneys and get back to
me. Later in the morning I received a message from Johnni Bond of
AT&T indicating that AT&T would not preempt any reservation
requests that it received.
24. On February 7
1
1996 and February 8, 1996 I left messages
for Sonja Coburn to return my earlier call concerning my request to
LDDS to prioritize the reservation for 888-256-7766 on Genesis'
behalf. On February 7, 1996, I received a message from Larry Lee
of MCl indicating that MCl could not help in prioritizing Genesis'
request nor would MCl nullify the request for the number which MCl
previously received.
25. On February 7, 1996 I contacted a smaller RespOrg, ATL
Communications, and spoke with Aelea (sp?) Christofferson. I
requested that ATL Communications attempt to reserve 888-256-7766
for Genesis. Ms. Christofferson indicated that she would have all
of ATL's operators attempt to do so.
26. Frustrated by my unsuccessful attempts to be provided
with any assurances from the biggest RespOrgs (e.g, AT&T, LDDS) to
prioritize Genesis' request for reservation of 888-256-7766, or
that they would override any prior requests for the number in favor
of Genesis (e.g. AT&T, MCl), and as a result of LDDS' failure in
notifying me of the 888 service and replication list and its
apparent refusal to submit my request for replication along with
timely filed requests it received but which LDDS failed to submit
to DSMl by February 1, 1996, I contacted William Noonan, MD,
Esquire, of an intellectual property lawfirm in Portland, Oregon
- 14 -
whose services Genesis utilized in the past. I requested that Dr.
Noonan send a letter on Genesis' behalf to all 156 RespOrgs on the
list I had received from Michele Wade of DSMI, demanding that each
RespOrg nullify any request for reservation of 888-256-7766. The
letter was drafted and urgently faxxed out on February 8, 1996 from
Dr. Noonants law office, during a time period when the river which
runs through Portland was rising at a dangerous rate and Dr.
Noonan's office building was being evacuated. Upon information and
belief, not all fax transmissions were completed (e.g., some wrong
numbers), however, all confirmation copies were sent out on
February 9, 1996 and none were returned. A sample copy of Dr.
Noonan's letter is attached hereto as Appendix A. Upon information
and belief
t
Dr. Noonan received a variety of messages from some of
the RespOrgs contacted. Some were apparently upset about being
contacted and others called merely to indicate that they had not
received any reservation for the 888-256-7766 number.
27. On February 8, 1996, Dr. Noonan sent a letter on Genesis'
behalf to the attention of Irene Flannery at the FCC, requesting
that the 800-BLOSSOM number be replicated (copy attached hereto as
Appendix B). Upon further information and belief, Dr. Noonan
called the FCC on February 9th to follow up and was informed that
Ms. Flannery was not available to speak to him. Upon further
information and belief, Dr. Noonan instead spoke with Brad Wimmer
of the FCC who informed Dr. Noonan that it was too late to reserve
the replication.
28. On February 9, 1996, I provided Michael Wade of DSMI with
- 15 -
the originals of Genesis' RespOrg application, the original
Insurance Binder and a check in the amount of $1300 at DSMI' s
offices at Bellcore in Piscataway, NJ. About an hour and 45
minutes later, Michele Wade of DSMI provided me with a RespOrg
Smart Card to access the NASC database but she informed me that I
would not be permitted to access it from DSMI's office nor could
anyone at DSMI instruct me on how to reserve a number.
29. I also asked Ms. Wade that since Genesis was now a
RespOrg, would she reserve 888-256-7766 for Genesis since it was my
understanding that as a RespOrg, RespOrg's would be able to have
their own numbers reserved first, without being subject to others
accessing the number. I was informed of this by Judith
Oppenheimer, an industry consultant, who indicated that RespOrg's
like AT&T could have numbers they use (e.g., 1-800-COLLECT)
reserved automatically in light of their status as RespOrgs. Ms.
Wade responded "no." Ms. Wade also refused to provide me with a
copy of the replication list even though I was standing in front of
her. She indicated that the list was being FedExxed to my business
address in Medford, Oregon. I informed Ms. Wade that since NASC
had refused to permit me to familiarize myself with the database by
virtue of a tutorial until such time as Genesis' application was
approved, I was now unable to establish communications access with
the database, which could have been avoided if NASC was
cooperative. Ms. Wade said "too bad," "good luck" and she left the
room. It took one business day to correct the communications
access problem.
- 16 -
30. About two and half hours later I arrived at the
headquarters of NASC in Tarrytown, New York. I met with Ms. Janice
Jones of NASC who informed me that she could not assist me in any
way, including showing me how to reserve a number or to provide me
access to a terminal. I requested use of a NASC terminal to access
the system since I was previously denied assistance earlier in the
week pending approval of Genesis' RespOrg application. I informed
Ms. Jones that this was precisely the situation I intended to avoid
and Ms. Jones also told me "too bad," that no one could help me now
and she requested that I leave, which I did. At about 7:00 that
evening I contacted Keith Meyer of NASC. I informed Keith, who had
been friendly in my initial contact with him, that I was
experiencing difficulty with my computer and requested that I had
no way of accessing the database. Mr. Meyer refused to assist me
in accessing the database and in permitting me to come to NASC's
offices to access the database from one of its terminals. Mr.
Meyer's only suggestion was that I get another computer from some
other source.
31. From February 9, 1996 at about 5:30 p.m. until
approximately 10:30 a.m. on February 12, 1996 I repeatedly tried to
access the database but could not properly interface with the
software and the communications system. I tried to reach NASC
several times during this period, but no one from NASC returned my
call until 10: 00 a. m. on February 12th. In that call, NASC
provided me with the proper computer settings which then permitted
me to access the database. At about 10:30 a.m. on the 12th, after
- 17 -
being finally able to access the system, I learned that TWC
Communications (I1TWCI1) had reserved the number 888-256-7766. I
also confirmed that LDDS, Genesis' carrier, was listed in the
database as Genesis' designated RespOrg.
32. After I discovered TWC had reserved the number I called
Aelea Christofferson of ATL Communications to discuss what I had
found out. Ms. Christofferson indicated that one of her operators
had noticed that when she was attempting to secure the 888-256-7766
number for Genesis on February 10t.h, the number was reserved by
LDDS which she thought was good since she knew LDDS was Genesis'
carrier. Seconds later she accessed the database again and it
reflected that TWC had secured reservation of 888-256-7766, rather
than LDDS. Ms. Christofferson indicated that the operator thought
this was very strange.
33. About a half an hour later, I contacted TWC of Edison,
New Jersey and spoke to Joe Weiss about the reservation of 888-256
7766 by TWC. Mr. Weiss' response was 110h, the BLOSSOM number. 11 He
indicated that TWC had just become a RespOrg. I inquired as to
whether his customer would be interested in selling the reservation
as I had made every attempt to reserve the number. Mr. Weiss
indicated that he doubted it since his customer had already
prepared a business plan to use the number. I asked him if he had
seen his customer's business plan and if his customer intended to
engage in the flower business. He responded that I1they do intend
to compete in the flower business 11 and that if I prevent the
customer from using 888-BLOSSOM, his customer would still use the
- 18 -
number as "they intended to take the misdials of customers trying
to reach [Genesis' 800-BLOSSOM number]. He further stated that
"that could be very profitable without having to advertise." I
further asked Mr. Weiss why would his customer prepare a business
plan when they had no assurance of getting the number until
February 10, 1996. Mr. Weiss responded that they were sure they
would get the number. I asked him how he could be so sure of
getting the number and he responded "they had their ways. II I asked
him to be more specific and he became evasive. Mr. Weiss indicated
that he would speak to his customer and suggested that the
attorneys speak. I said that would be acceptable.
34. Later on the 12th I received a call from Sonja Coburn of
LDDS who stated that LDDS did all that it could do. She was
evasive and would not tell me exactly what LDDS did to try to
reserve the number 888-256-7766.
35. On February 14, 1996, a letter was drafted and faxxed
from Genesis' legal counsel in Portland, Oregon to TWC requesting
a settlement of the matter. Another letter was sent on February
16, 1996 to the attorney for TWC' anonymous client also requesting
a settlement of the matter. Telephone conversations ensued from
these contacts, however, to date, TWC's anonymous client refuses
to settle the matter.
36. On February IS, 1996 Susie Cotter of Sprint left a
message for me indicating that Sprint had made a "valiant" effort
to reserve 888-256-7766 for Genesis but that somehow TWC had the
number reserved first.
02/26/96 20:53 '6'202'l:l.1 :\084
- J 9
The foregoing statements are true and correct to the best of
my knowledge, information and belief.
Robert H. Tate
February~,1996
Appendix A
.?
, ..
KLARQUISr PA!ENT+
p.4J003/00~
ip
MltL.Wtr
J-c:..,wJ
wva. Y. ClIlIftIl
Puri:kw. Hapey
x-dl5.IIw1*
....ADala:n
J-t!ir".;~
D..jJ P. 'UCI$Cf.
~J.Ncy
D-wL.s.,hw,]r.
]GhAW.SNatr
JcIIlID.V~
AIda,,, L Wlli_
Wv'IlI It. W'III\
Utw\'~ll.
WiUi2lll V. NOOllJIl, M.U.
KuiQUIST SPAIIMAN
c.wmu LIIGB &WmNgfON
II."ilrtrrdL;a,4LWIJI')~
P'Qbruary~.1~~6
~COO:$l,"T,q,-n
~dJ.bp, 'h.l\
S~Lct1oich, P«.D.
YIi [AX (2141 69Q-5925
CQJ!l%J!HATION 11 HAIL
Mr. Steve~ann.r
r.ong Distance Network
1600 fLvwenade Center Suite~S~O
R1~hard.onrTX 75080
1\e: Service Mark for SOO-BLOSSOM and Me-PoT.OSSOM
o~~R~f.No.SO~'-434)2/WDN
~.arMr. Steve Tanner;
Thi $': Iet:ter is be1nq w.t:iccen on Qahalf of Genesis Two,
Inc., theown~L.of theservic~marK 8o0-5LOSSOM , to notify you
that our client's rights inth~t~~kwill bevlgorou~li
enforced. If yt"mr company assigns 01' attempts to recerve the
number888-~LOSSOMoraae-2SG-71~6for yourQelfO~~nyother
~~Ltybesides Cenesis Two, our~lientplans totak~allnece3~ary
and appropriatel~galaction. Such action may include seeking
d~magesandlnjuIl~Liverelief~gai~styour company and thepar~y
to whom that telephone numb@rm~ybe ass1gned.
Genesi~Two h&5 used thet~l.phonenUmbereOO-BLO~50M
throughout the united. St.tes and in other CouI.l.tries rand h.:1e
invested heavily in advertlsing and other promotional :;lc-t".ivity
related to the use of thi8 number in&ssoci~~ionwithth~sale
and dellv'cry of£lo~ersand many other gHt lLems. Gcnecis Two
ha, de·..eloped goodWill in this mark by virtue of th?S8
sub~tanti;:llinvestment.:;> I and also ha.s fil':'r1 service mo.I..k.
.<lpplicat,1on:::> with the U. S. Pat':'nt. and Tradellla;k Offic::e on thQ
marks eOOBLOSSOM ann 8S8-BLOSSOM. Damagcc from an infringing
U~~of these marks aLI:: expected to be slIhstant.ial.
rt h:u ecme to our attention chat a t.hird. parLy il5
at,t.empt.ing LO Le:serve the mark BS8-BLOS:iUl"I or Se6-;Z;JG 77b6 for
use in an infringingm~nner.Us~of the mark SSS-BLOSSOM in
..
(
KLARQUIST PATENT+
:,'
.~004/004
connection with confusingly similar services will be an
infringement of OUL- client's service mark rights. Assignment of
the telephone number 888-7766 will also create contus1on in the
marketplace beoause ot the sUbstantial advertising by Genesis Two
in~unne~~ionwith Lhe 800-256-7766 t.lephone nUmber. Courts
have vigorously protected service mark rights in toll-free
numbers because of the pUblicconfuei~neaus~dby similar
alphanumeric telephone number combinations. Dial.-A-Mattress
Franchiae Corp. v. Page, 860 F.2d 675 (2d C1r. lj89}i Express
Mortgage Brokers, Inc. v. Simpson Mortgag., Inc.,3~U$PQ2d~37l
(S.D. Mich.1~~4).Telephone companies have been requirea to
take affirmative steps to avoid confus1on by telephone customers
in such cases. vocational PeI-sonnelService~,Inc. v.
Statistical Tabulating corp., 305 F. supp. 701 (D.C. Minn. 1969).
To avoid these legal consequences, we ask that your
company nullify all requests you may have received for the number
eSS-BLOSSOM or 888-256-7766, othe£ than~equests!rom Genesis
Two. If you have not or do not receive any such :r.-equeat :f:rom
another party, you may disregard this not±ce.
very eruly yours J
KL~QUISTsPARXMAN CAMPBELL
LEIGH & WHINSTON, LLP
(p [LL. 4Nvl-'"P-JJIH'~
William D. Noonan, M.D.
WDN;en:db
cc: Robert Tate
KLARQUISTPKrEfc~
v
CONFIRMATION COpy
P.6
1A1
~002/004
The anclosed letter w??f~.~on 'February 9, 1996 to
companies who may have been Qont&Qted by someone, other than
Cenesis Two. who wa. altempting to reserve the telephone number
888-2S6-7766.Plea~edisregard this confirmation copy if you
hava notb~~ncontacted by that party.
Thank you
Appendix B
...---','~_.
02126/96 09:06
1:503 228 9446
KLARQUIST PATENT
~OOl/002
lUthleen]. Bucl:ky
Lisa M. Cald",eU
TlDIOthy M. Carlson
Al:IJI E. 00111, Ph.D.
Scott D. £:ads
James E. Gtrinpr
Dollglas D. H:IIlcock
Joseph T.Jalcube~
Mark M. Meininger
Joel R. Meyer
Mark.4..PQrtl!r
Raben F. Scoai
Stacey C. Sbtl!l'
Stl:phcn A. Wi,ht
TlOIl-'lCIL CO'\:5\....1"'''Tl
David J. Earp. Ph.D.
Stephel\Lcs~vich.Ph.D.
A Rtgintrtd Lim;trd Liability Parmmbip
PIll",t. T,,_,rw Il7IJ Copyrigbt l.6w
Liti,.tioll ,na Liwlting
One World Trade Unter
121 S.W. Salmon Street, 16th Floor
Portland, Oregon 91204-2988 U.S.A.
FAX: 503·228-9446
Telephone: 503-226-7391
February 8, 1996
BY FACSIMILE: 202-418-2345
KLARQUIST SPARKMAN
CAMPBELL LEIGH &WmNSTON
Irene Flannery, Esq.
Federal Communications commission
1919 M street, N.W.
Washington, D.C. 20554
Dear Ms. Flannery:
This letter is beinq sent to you on behalf of Genesis
Two, Inc., the owner of the servica mark SOO-BLOSSOM. The
carrier responsible tor the SOO-BLOSSOM telephone number did not
poll Gene.is TWo as recommended in your Report DC 96-3 issued
January 25, 1996. The February 1, 1996 deadline for submitting
reque.ts tor eorrespondinq 888 numbers therefore passed before
Genesis Two bacame aware of the February 1 deadline. It has now
come to our attention that a third party is attemptinq to reserve
the telephone number 8B8-BLOSSOM (888-256-7766) for use in a
manner that will infringe the Genesis Two service mark. We
therefore request that the FCC identify 888-256-1166 as a number
that should be reserved tor Genesis TWo.
OfcOl,.-,n
Wil/hm D. Noonan, M.D.
Mm: L. Bec:Iarr
J--Call1pbell
W....Y. Conwell
P,atdcW.HlJIhty
ICcsu!cfh S. lIarquilt
Rulon A. K1ialct II
JamaS.Leip
DM:I P. Petcntn
lidatrdj. Polley
Dontld L. Stephens. Jr.
}olin W. SNII1
}oJIn D. Vaadalberg
Atthur L. WlUIIIEClII
Garth A. WIM
Genesis Two has used the telephone number 800-BLOSSOM
(800-256-7166) throughout the United States and in other
countries, and has invested heavily in advertising and other
promotional activity related to use of this number. Genesis Two
has developed goodwill in this mark by virtue of these
substantial investments, and also has filed service mark
applications with the U.s. Patent and Trademark Office on the
marks aOO-BLOSSOM and 8SS-BLOSSOM. Damaqe. trom an infringing
use of these marks are expected to be SUbstantial.
Hr. Robert Tate, president of Genesis Two, made
numerous attempts to re??rve the number 888-256-7766. He was
given misleading or incomplete information by carriers about
proceduras for reserving tha 888 number. Given these
circumstances, the significant legal damages that will be caused
by misappropriation of the mark, and the straiqhtforward manner
in Which legal consequence. can be avoided at this time, we ask
that you designate 88S-256-7766 as "unavailable" at the time
reservation of 888 numbers beqins on February 10.
"---'""
Irene Flannery
February 8, 1996 - Page 2
Our Ref. 43232/WDN
"'_00'
We also ask that the FCC reconsider the process by
which 888 telephone numbers were r.s.rved. There is an inherent
conflict of inter.st in asking carriers to poll their customers
to identify subscribers Who want to obtain their corresponding
numbers with the 888 prefix. Responsible organizations want to
have the greatestva~i.tyof 888 numbers available tor new
customers, which may have contributed to the inadequate or even
misleading nature of the information given to some customers,
SUch as Genesis Two. This process will ineVitably lead to an
extraordinary amount of litigation if 800 SUbscribers find their
t valuable service marks diluted or infringed by 888 imitators who
, are attempting to take advantage of the goodwill already created
in the numbers by others.
Please set aside the number 888-256-7766 on behalf of
Genesis Two. This simple step taken at this time could avoid
expensive and prOlonged legal action (inclUding requests for
damages and injunctive relief) that will become necessary if a
third party misappropriates the 888-256-7766 telephone number.
Please call me to confirm receipt of this request, and notify us
of the action the FCC intends to take.
We are presently experiencing flood conditions in
Portland, which are threatening to inundate our office building
adjacent the Willamette River. I will attempt to call you on
February 9 from another location if telephone service to this
office is interrupted, because this matter is of the utmost
urgency.
sincerely,
KLARQUIST SPARlOIAN CAMPBELL
LEIGH & WHINSTON, LLP
WdL'~])-AJ~
William D. Noonan
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cc: Robert Tate
,
CERTIFICATE OF SERVICE
I, Kathryn M. Damm, a legal and administrative assistant in
the law firm of Bechtel & Cole, Chartered, certify that a copy of
the foregoing EMERGENCY PETITION FOR SPECIAL RELIEF has been hand
delivered or sent by Federal Express (*) this twenty-ninth day of
February 1996 to the following:
Regina Keeney, Esq.
Chief, Common Carrier Bureau
Federal Communications Commission
1919 M Street, N.W., Room 500
Washington, D.C. 20554
John Morabito, Esq.
Common Carrier Bureau
Federal Communications Commission
1919 M Street N.W., Room 544
Washington, D.C. 20554
Kathleen Levitz, Esq.
Common Carrier Bureau
Federal Communications Commission
1919 M Street, N.W., Room 500
Washington, D.C. 20554
Irene Flannery, Esq.
Common Carrier Bureau
Federal Communications Commission
1919 M Street, N.W., Room 544
Washington, D.C. 20554
Melissa Newman, Esq.
Common Carrier Bureau
Federal Communications Commission
1919 M Street, N.W., Room 500
Washington, D.C. 20554
William E. Kennard, Esq.
Office of the General Counsel
Federal Communications Commission
1919 M Street, N.W., Suite 614
Washington, D.C. 20554
- 2 -
Richard A. Metzger, Esq.
Common Carrier Bureau
Federal Communications Commission
1919 M Street, N.W., Room 500
Washington, D.C. 20554
Geraldine Matise, Esq.
Common Carrier Bureau
Federal Communications Commission
1919 M Street, N.W., Room 518
Washington, D.C. 20554
Norina T. Moy, Esq.
Leon M. Kestenbaum, Esq.
Jay C. Keithley, Esq.
SPRINT CORPORATION
1850 M Street, N.W., Suite 1100
Washington, D.C. 20036
*Mark C. Rosenblum
Peter H. Jacoby
Judy Sello
AT&T
Room 3244JI
295 No. Maple Avenue
Basking Ridge, NJ 07920
Roy L. Morris
Director
ALLNET Communications
1990 M Street, N.W., Ste 500
Washington, D.C. 20036
Richard S. Whitt
Director, Federal Regulatory
Affairs
WorldCom, Inc.
1120 Connecticut Avenue, N.W.
Suite 400
Washington, D.C. 20036
*Joe and Sharon Weiss
TWC Communications
38 Carriage Place
Edison, NJ 08820
- 3 -
*Michael Wade
President
Database Service Management, Inc.
6 Corporate Place
Room PA-IF286
Piscataway, NJ 08854-4157