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[wg-b] 888 vs. 877 replication

FCC CC Docket No. 95-155 Toll Free Service Access Codes ) , FOURTH REPORT
Released: March 31, 1998

Para 7.: "Lastly, the Commission asked whether, in the event that we deny a
right of first refusal, trademark law provides sufficient protection to
current holders of 800 numbers."

Para 22.:  "Although we recognize commenters' concerns regarding trademark
infringement and unfair competition, we find that those issues properly
should be addressed by the courts under the trademark protection and unfair
competition laws, rather than by the Commission."
That said, 888 replication was never addressed by the industry as a
trademark issue, but rather a misdial issue.  Replication was granted to 800
users without regard to tm-status of the 800 number or its alpha vanity

Numbers that spelled something could be and were replicated.  Numbers that
spelled nothing, could be and were replicated.  Replication orders were
accepted only in numeric form, not alpha form.  The replication set-aside
database was maintain only in numeric form as well.

Of course, trademark interests spoke of it in terms of trademark protection,
and petitioned the FCC for replication in terms of trademark protection,
because that's their focus point and vernacular.

But the FCC has consistently taken the position that trademark issues should
be resolved by the courts.  (See above.)

FYI, 877 was not granted replication because the industry did not want a
repeat performance of the 888 replication debacle (outlined in part below),
so it simply told the FCC that consumers now know that 877 is toll free --
misdial problem solved, no replication needed. (See bottom of posting

Click your heals 3 times and say, "there's no place like home, there's no
place like home, there's no place like home..."


Judith Oppenheimer wrote:

> I've just joined - am publisher of ICB Toll Free News
> (http://icbtollfree.com) and pres of ICB Consultancy
> (http://800consulting.com).  Also moderator of  TOLLFREE-L
> (http://www.egroups.com/group/tollfree-l/info.html).
> I'd like to try answering some of your questions on toll free.  I've
> weeded through the archives, am addressing what seems relevant.
> At the time 888 was thought up at an Industry Number Committee (INC)
> meeting, 800 numbers were by no means exhausted. Rather, over one third
> of them were on pagers and other one-to-one PCS applications that needed
> only the utility of toll free, but not the brand of 800.
> The myth of "exhaust" was created by companies that did not want to wait
> for a non-branded toll free utility code to be provisioned, in part
> because the industry historically opposes applications-based codes
> (state PUCs are now looking to this issue because of local number
> exhaust), and also because waiting to roll out product, vapor or
> otherwise, means not necessarily meeting quarterly projections.   888
> was created of pure industry greed and steamroller management.
> Not coincidentally, at the same time they created the accompanying myth
> of the "broker" on whom to blame the "exhaust" at the FCC.
> (To this day this works very nicely with carrier and large companies'
> huge appetites for buying vanity numbers: gives them inordinate leverage
> at the bargaining table.  Reverse domain name hijacking is only
> 800-theft's teething baby sister.)
> Moving forward, 888 was to be introduced secretly and mostly
> after-the-fact (how many of you have been told by your carriers to line
> up for 866 and 855?), with the large carriers getting their replications
> first (800 COLLECT and Co. 'own' their vanities and need replication to
> 'protect their consumers from confusion.'  You, do not.)
> Customers got word of 888, and that their 800 brands would not be
> protected in 888, and the resulting ear-boxing of carrier national
> account reps, gave birth to 888 replication as a SNAC (SMS Number
> Administration Committee) contribution, written by a very astute
> gentleman named John Cushman at AT&T with whom it was my pleasure to
> associate.
> So replication become a *voluntary* industry process.  Very large
> customers were notified privately and given a fair length of time (at
> least three to four months) to place advance reservations to match their
> existing 800's in 888.  As word leaked out of this voluntary
> preferential system, angry 800 customers bombarded the FCC with
> complaints, and a formal requirement to enable 888 replication for all
> 800 customers was issued.  When *that* was only paid lip service to, the
> FCC gave 800 users unprecedented access to communicate directly with
> Database Services Management Inc. (DSMI), the SMS administrator and
> 800's version of Internic, in order to provision their replication
> requests.  If memory serves me correctly, 800 customers had a 15-day
> window to get this done.
> (EXPLANATION:  Unlike domain name user direct access to Internic and
> Whois, 800 customers are not allowed direct access to the 800 database
> and have no Whois equivalent.   Furthermore, the entities called
> "RespOrgs" who by tariff are mandated to function as agents for 800
> customers in the database, are usually also the carriers (AT&T, MCI,
> Sprint on down ...) who also compete with customers for the best
> numbers* for themselves and for their preferred customers.
> These same RespOrgs also make up SNAC and INC and other industry
> committees, and create behind closed doors, the products, standards and
> practices of toll free numbers and service, in the guise of industry
> engineering management.)
> I give you this background to illustrate that the FCC has not pro-acted
> on any logic or even casual consideration of customer needs or rights,
> but rather, only reacted at minimum levels to keep the peace.
> The 888 replication scenario was a joke that never reached most users -
> its only value, that of setting some minor precedent for
> rights in numbers, which the FCC keeps ignoring anyway ...
> In my opinion, anything that sets the stage for using the toll free
> model for domain names, is exceedingly dangerous (see EXPLANATION again
> a few paragraphs up ...)
> It is a vehemently anti-user system; it is dysfunctional and abusive to
> all end users:  small and large businesses, resellers, service bureaus,
> etc.
> The only entity granted 'control' status by law (Portability) over toll
> free numbers is the end user.  Toll Free Guidelines have consistently
> stated throughout six years and eleven issue modifications, "The Toll
> Free Service End-User Subscriber has the ultimate right to control its
> Toll Free Service, and its reserved, active, or assigned Toll Free
> Service numbers."
> This status is ignored at every turn, at every level of the industry.
> It keeps my consulting practice very busy.  This is not where I want
> domain names to go.
> In fact, there were plans to petition the FCC to overturn its draconian
> toll free rules and system, pointing out the efficacy of the open
> internet system:
> 1.  direct user access to Internic to acquire domain names, with no
> interfering/conflicting-interest 'RespOrg'
> 2.  direct user access to Whois, again with no
> interfering/conflicting-interest 'RespOrg'
> 3.  recognition of user interest in domain names
> 4.  unfettered freedom to buy and sell (generic, non-trademark
> infringing) domain names
> We were hoping to move 800 into the future ... instead it looks like the
> domain name system is moving into the dark ages ... sad ...
> All this said, you don't have to take my word for it.  ICB Toll Free
> News contains all the documentation - news stories, FCC Rulings,
> petitions (still awaiting consideration!), etc., on all of this.
> Registration is required but there is a 15 day free trial.  If anyone
> here is totally adverse to registering, email me
> (mailto:joppenheimer@icbtollfree.com) and I will get you a temporary
> user name and password to search the news stories and pick through our
> Regulatory Reading Room.
> Of course I'll be happy to continue this discussion on the list as well
> (assuming I've not already put you to sleep), and hope I make a useful
> contribution.
> Judith
> P.S.  Milt Mueller, I believe, wrote here, "There is no evidence that
> the absence of first refusal in the new space has
> caused any problems."
> This depends how you define a problem.  If your toll free number is used
> for Johnny to call home from college, no problem.  If the toll free
> number is what your business depends on for revenue - big problem.
> Toll free numbers are NOT created equally.  Like .com, 800 rules, and
> vanities rule above that.  The .com, the 800 and the vanity, are all,
> for practical purposes, currency.  The answer to why, is branding.
> Plain and simple.
> Two illustrations:  a recent study, Toll Free Numbers in Radio
> Advertising, found that the vanity 800 number out performed the numeric
> 800 number, by 14 times!  Fourteen times more people called the vanity,
> than the numeric.  Which do you want your business to use?
> Second illustration:  a recent ad agency mistake placed an advertiser's
> 877 vanity number in a radio spot instead of its 800 vanity (same
> vanity).  Both numbers ring into the advertiser's call center, so no big
> deal.  A percentage of misdials to the 800 was anticipated.
> However, more people called the 800 vanity number than called the 877
> vanity number, even though the commercial specifically said call toll
> free 877 etc.   Would you want to be the 877 number advertiser without
> the matching 800 number, who loses that much business to someone else
> (or the ether, for that matter)?
> This is one reason why one of the SBA's petitions to the FCC on
> replication as well as its Toll Free Ruling against buying and selling
> said, among other things, that it is discriminatory to new and small
> businesses for them to be forced to use 888's and 877's, with not even
> the option to try to buy the 800 ...

Judith Oppenheimer, 1 800 The Expert, 212 684-7210
Publisher of ICB Toll Free News: http://icbtollfree.com
Publisher of WhoSells800.com: http://whosells800.com
Moderator TOLLFREE-L: http://www.egroups.com/group/tollfree-l/info.html
President of ICB Consultancy: http://JudithOppenheimer.com