Before the FEDERAL COMMUNICATIONS COMMISSION DA 96-295 Washington, D.C. 20554 In the Matter of ) ) Part 68 Waiver Request of ) Practical Telephony Corporation ) ORDER Adopted: March 5, 1996 Released: March 5, 1996 By the Chief, Network Services Division, Common Carrier Bureau: I. INTRODUCTION 1. On October 2, 1995, Practical Telephony Corporation (PTC), an equipment manufacturer, requested a waiver of Section 68.312(k) of the Commission's rules to offer a device that detects the presence of a stutter dial tone. A stutter dial tone is a series of short separate tones produced by the telephone company's central switching office that alerts a voice mail subscriber that he or she has voice mail. PTC's device, which would be connected to the public switched network at the subscriber's premises, automatically detects the presence of stutter dial tone and causes a light to blink to alert the subscriber visually of the waiting voice mail message. Two comments and three reply comments were filed in response to PTC's waiver request. In this Order, we grant PTC's request, subject to the conditions set forth in the Bureau's Alameda Order. II. BACKGROUND AND PETITION 2. On September 28, 1995, the Commission's Common Carrier Bureau released an order granting eight parties a waiver of Section 68.312(k) of the Commission's rules to offer a device that detects the presence of a stutter dial tone. The waivers were granted subject to eight conditions. In the Alameda Order, the Common Carrier Bureau invited other parties able to meet these conditions to file petitions for waiver of Section 68.312(k) for their stutter dial tone detection devices. Two parties have filed petitions for reconsideration of the Bureau's decision. On February 6, 1996, the Network Services Division granted waivers to four additional parties, subject to the eight conditions set forth in the Alameda Order and subject to the Commission's decision addressing petitions for reconsideration of the Alameda Order. 3. In its petition for waiver, PTC states that its Message Alert 100 and 110 and Message Alert 300 and 310 use the stutter dial tone detection technology developed by Alameda Engineering Incorporated (Alameda) and for which Alameda was granted a waiver. PTC indicates, however, that for business reasons it would like a waiver in PTC's name. After PTC's Waiver Request was placed on public notice, PTC filed a waiver request for Caller-ID products that incorporate stutter dial tone detection technology subject to the same conditions and limitations enumerated in the Alameda Order. PTC's Caller-ID Waiver Request has not been placed on public notice. PTC asserts in its two waiver requests that its devices conform to the conditions enumerated in the Alameda Order. We will consider both of PTC's waiver requests in this Order because the stutter dial tone detection technology at issue in PTC's Caller-ID waiver request is identical to that at issue in its original waiver request. III. POSITIONS OF THE PARTIES 4. SWBT opposes PTC's waiver request. In its Comments, SWBT argues that each party requesting a waiver of Section 68.312(k) of the Commission's Rules for a stutter dial tone detection device should be required, before the Bureau grants such a request, to submit its device to an impartial testing agency for certification that the device conforms to the conditions enumerated in the Bureau's Alameda Order. SWBT acknowledges that it makes the same argument in its petition for reconsideration of the Alameda Order. In reply, PTC contends that because SWBT made the same arguments in response to Alameda's waiver request, and because PTC's waiver request is identical to Alameda's and subject to the conditions enumerated in the Alameda Order, SWBT's contentions have already been considered and addressed by the Bureau in the Alameda Order. PTC further argues that the Bureau already requires certification that stutter dial tone detection devices comply with the waiver conditions before they are registered pursuant to Part 68 of the Commission's Rules, and that requiring another certification prior to being granted a waiver would be redundant. PTC maintains that if SWBT wishes to question the competence of the organizations authorized by the Commission to certify Part 68 compliance, SWBT should do so "using the proper procedures." 5. VoiceWaves opposes PTC's waiver request on three grounds. First, VoiceWaves alleges that PTC has been marketing its stutter dial tone detection devices as being already approved by the Commission before receiving the required waiver. VoiceWaves refers to language in PTC's data sheet, attached to PTC's waiver request, that reads "Agency Approvals . . . FCC Part 68" and "MessageAlert 100 works with any telephone company or PBX voice mail service which provides stutter dial tone signaling (emphasis added)." VoiceWaves maintains that before considering PTC's waiver request, the Commission should investigate whether PTC marketed its unregistered stutter dial tone device as FCC-approved under Part 68 and that absent clear and convincing proof from PTC that it did not do so, the Bureau should deny the waiver request. Second, VoiceWaves argues that PTC's data sheet does not describe a device that would comply with the condition imposed in the Alameda Order prohibiting devices from performing periodic checks because the data sheet claims the device would allow a user to "never" have to pick up the telephone handset to check for messages. According to VoiceWaves, if the device may not make periodic checks for stutter dial tone, it is mathematically impossible to never have to check for messages and still be assured that the message light is always accurate. Finally, VoiceWaves contends that PTC fails to meet its burden for a waiver because its waiver request contains no description or representation that its devices are compliant with the Alameda Order. 6. In its Reply to VoiceWaves, PTC asserts that the data sheet VoiceWaves cites as evidence of PTC's misrepresentative marketing practices was written prior to release of the Alameda Order, was out of date and no longer accurate, and was in any event "under controlled and limited distribution to knowledgeable parties with appropriate disclaimers." PTC further maintains that it communicated at all times to its potential customers that Commission approval for its stutter dial tone detection devices was pending the outcome of Alameda's waiver request, that all prospective PTC customers were "aware of the issue of stutter detection devices," and that it has never sold or taken orders for a stutter detection device regardless of the implication of the data sheet. PTC concludes that VoiceWaves' objections relate only to PTC's preliminary data sheet and not to any relevant issues regarding PTC's waiver request, and that VoiceWaves' arguments are "really a smokescreen for competitive desires on VoiceWaves part to delay PTC's waiver grant." In its Response to PTC's Reply, VoiceWaves submits two affidavits that it argues directly refute PTC's representations that all of PTC's customers were told or were already aware that the Commission had not yet approved stutter dial tone detection devices for connection to the public switched network. IV. DISCUSSION 7. Pursuant to Section 1.3 of the Commission's Rules, the Commission may waive any provision of its rules, in whole or in part if good cause for a waiver is shown. An applicant for waiver must demonstrate that special circumstances warrant a deviation from the general rule and how such deviation will serve the public interest. We believe that PTC has met this burden. 8. In the Alameda Order, the Common Carrier Bureau invited other parties able to meet the conditions enumerated there to file petitions for waiver of Section 68.312(k) for their stutter dial tone detection devices. Since the Alameda Order was released, a number of parties have requested and been granted similar waivers. Each party requesting a waiver certified in its petition that it would conform to the eight conditions enumerated in the Alameda Order. The devices of each of these parties were similar to the devices manufactured by the parties granted a waiver in the Alameda Order, as are the devices for which PTC seeks a waiver. As we stated in the Alameda Order, the introduction of innovative customer premises equipment that increases choice for consumers and improves the value to the customer of a particular service is in the public interest. PTC's devices using stutter dial tone detection conform to the conditions enumerated in that order and will therefore pose no harm to the network. We conclude that PTC has shown good cause that allowing registration for its stutter dial tone detection device would be in the public interest. 9. We decline VoiceWaves' suggestion that the Bureau should conduct an investigation into PTC's marketing practices prior to considering the merits of PTC's waiver request. The Commission's rules do not address the marketing practices of customer premises equipment (CPE) manufacturers. Rather, Part 68 of the Commission's Rules regulates the connection of CPE to the public switched telephone network and requires that CPE be registered with the Commission before it can be connected to the network. VoiceWaves has failed to state which Commission rule was violated or how that alleged violation relates to our concern regarding which devices may be safely attached to, and used in conjunction with, the public switched network. While we limit our focus in this order to the technical merits of the waiver request before us, we do not condone inaccurate affirmations in marketing material regarding Commission approval of CPE. Consequently, we encourage parties to exercise caution in their marketing efforts prior to receiving approval from the Commission to attach their device to the public switched telephone network. 10. VoiceWaves also argues that PTC requests waiver for a device that, if designed according to PTC's data sheet, would not comply with the condition imposed in the Alameda Order that the device may not make periodic checks. While the assertion in PTC's data sheet that a user will "never" have to pick up the telephone handset to check for messages may be inaccurate, PTC's waiver request clearly states that its devices conform to all eight conditions enumerated in the Alameda Order. VoiceWaves' objection is based solely on PTC's representations in its marketing material. Our concern is that PTC requests a waiver for a device that does not actually perform periodic checking. PTC has indicated that its stutter dial tone detection devices do not and VoiceWaves offers no other evidence to refute PTC's assertion in its waiver request. VoiceWaves also contends that PTC fails to meet its burden for a waiver because its waiver request contains no description or representation that its devices are compliant with the Alameda Order. PTC's waiver request on its face states that its stutter dial tone detection devices use the same technology as Alameda and conform to the required conditions. This representation is sufficient for the Bureau to determine whether the waiver request should be granted. PTC will be obligated to show that its devices in fact meet the Alameda Order conditions when it submits its detailed registration application to the Commission. 11. We disagree with SWBT that PTC's waiver request should be denied because PTC has not submitted its device to an impartial testing agency for certification that the device conforms to the conditions enumerated in the Alameda Order. SWBT's argument is identical to that raised in its petition for reconsideration of the Alameda Order and it will be addressed in that proceeding. Nevertheless, while we grant PTC's waiver request, we subject the authorization to any changes required by the Commission's decision on reconsideration. If PTC fails to comply with the Commission's reconsideration order it may have its stutter dial tone registration revoked. 12. We also note that on December 13, 1995, prior to securing a waiver, PTC obtained approval for registration of its Message Alert models using stutter dial tone technology. Accordingly, we grant PTC's waiver request nunc pro tunc. V. CONCLUSION 13. For the reasons set forth above, we grant PTC's requests for waiver of Section 68.312(k) of the Commission's rules to permit connection to the public switched network of its Message Alert and Caller-ID devices using stutter dial tone detection. PTC's waiver requests are granted subject to the conditions enumerated in the Alameda Order and subject to the Commission's decision on reconsideration of that order. We also conclude that PTC's waiver for its Message Alert models using stutter dial tone detection technology is made retroactive to the date PTC obtained registration for these models. VI. ORDERING CLAUSES 14. Accordingly, pursuant to authority delegated in Section 0.91, 47 C.F.R.  0.91, and Section 0.291 of the Commission's Rules, 47 C.F.R.  0.291, and pursuant to Section 1.3 of the Commission's Rules, 47 C.F.R.  1.3, IT IS HEREBY ORDERED that the request for waiver of Section 68.312(k) of the Commission's Rules, 47 C.F.R.  68.312(k), by Practical Telephony Corporation for its Message Alert stutter dial tone detection devices IS GRANTED to the extent discussed herein. 15. IT IS FURTHER ORDERED that, pursuant to authority delegated in Section 0.91, 47 C.F.R.  0.91, and Section 0.291 of the Commission's Rules, 47 C.F.R.  0.291, and pursuant to Section 1.3 of the Commission's Rules, 47 C.F.R.  1.3, the request for waiver of Section 68.312(k) of the Commission's Rules, 47 C.F.R.  68.312(k), by Practical Telephony Corporation for its Caller-ID products incorporating stutter dial tone detection IS GRANTED to the extent discussed herein. 16. IT IS FURTHER ORDERED that the petitions for waiver ARE GRANTED SUBJECT TO THE FOLLOWING CONDITIONS: The stutter dial tone detection device (1) performs no periodic testing for stutter dial tone; (2) makes an off-hook stutter dial tone check no more than once after a subscriber completes a call, and completes the check no earlier than 4 seconds and no later than 30 seconds after the subscriber hangs-up; (3) makes an off-hook stutter dial tone check after an unanswered call no more than once and does so within 4 minutes after the call; (4) performs no off-hook stutter dial tone checks after an unanswered incoming call if the visual message indicator is already lit; (5) takes the line off- hook for no more than 2.1 seconds per stutter dial tone check; (6) synchronizes off-hook checks when multiple stutter dial tone detection and visual signalling devices are attached to the same line so that only one check is made per calling event for a single line; (7) does not block dial tone to a subscriber attempting to initiate a call as an off-hook stutter dial tone detection check is occurring; and, (8) does not use more than 8 micro-amps of direct current (DC) from subscriber line loop, except that the device may draw loop DC sufficient to make authorized off-hook checks. 17. IT IS FURTHER ORDERED that the petitions for waiver are granted subject to the Commission's decision on reconsideration of the Alameda Order, 10 FCC Rcd 12135 (1995). 18. IT IS FURTHER ORDERED that the waiver for PTC's Message Alert models is granted nunc pro tunc, so that its effective date is December 13, 1995. 19. IT IS FURTHER ORDERED that VoiceWaves' Request for Leave to File a Response to Practical Telephony Corporation's Reply Comments is hereby accepted. FEDERAL COMMUNICATIONS COMMISSION Geraldine A. Matise Chief, Network Services Division Common Carrier Bureau