[Federal Register Volume 63, Number 79 (Friday, April 24, 1998)]
[Proposed Rules]
[Pages 20364-20367]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-10741]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 22 and 64
[CC Docket No. 96-115, FCC 98-27]
Telecommunications Carriers' Use of Customer Proprietary Network
Information and Other Customer Information
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: The Commission is issuing this Notice of Proposed Rulemaking
(NPRM) seeking comment on three issues involving carrier duties and
obligations relating to the use of Customer Proprietary Network
Information (CPNI) and other customer information established under
sections 222(a) and (b) of the Telecommunications Act of 1996. We are
doing this based on various responses from parties in the proceeding.
DATES: Comments are due on or before March 30, 1998 and Reply Comments
are due on or before April 14, 1998.1 Written comments by
the public on the proposed information collections are due March 30,
1998. Written comments must be submitted by the Office of Management
and Budget (OMB) on the proposed information collections on or before
July 6, 1998.
\1\ Editorial Note: This document was received at the Office of
the Federal Register on April 17, 1998.
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ADDRESSES: Comments and reply comments should be sent to Office of the
Secretary, Federal Communications Commission, 1919 M Street, N.W., Room
222, Washington, D.C. 20554, with a copy to Janice Myles of the Common
Carrier Bureau, 1919 M Street, N.W., Room 544, Washington, D.C. 20554.
Parties should also file one copy of any documents filed in this docket
with the Commission's copy contractor, International Transcription
Services, Inc., 1231 20th St., N.W., Washington, D.C. 20036. In
addition to filing comments with the Secretary, a copy of any comments
on the information collections contained herein should be submitted to
Judy Boley, Federal Communications Commission, Room 234, 1919 M Street,
N.W., Washington, D.C. 20554, or via the Internet to jboley@fcc.gov,
and to Timothy Fain, OMB Desk Officer, 10236 NEOB, 725--17th Street,
N.W., Washington, D.C. 20503 or via the Internet to fain__t@al.eop.gov.
FOR FURTHER INFORMATION CONTACT: Lisa Choi, Attorney, Common Carrier
Bureau, Policy and Program Planning Division, (202) 418-1580. For
additional information concerning the information collections contained
in this NPRM contact Judy Boley at (202) 418-0214, or via the Internet
at jboley@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's
Further Notice of Proposed Rulemaking (FNPRM) adopted February 19, 1998
and released February 26, 1998 (FCC 98-27). This FNPRM contains
proposed information collections subject to the Paperwork Reduction Act
of 1995 (PRA). It has been submitted to the OMB for review under the
PRA. The OMB, the general public, and other Federal agencies are
invited to comment on the proposed information collections contained in
this proceeding. The full text of this Further Notice of Proposed
Rulemaking is available for inspection and copying during normal
business hours in the FCC Reference Center, 1919 M St., N.W., Room 239,
Washington, D.C. The complete text also may be obtained through the
World Wide Web, at http://www.fcc.gov/Bureaus/Common Carrier/Orders/
fcc9827.wp, or may be purchased from the Commission's copy contractor,
International Transcription Service, Inc., (202) 857-3800, 1231 20th
St., N.W., Washington, D.C. 20036.
Paperwork Reduction Act
This NPRM contains a proposed information collection. The
Commission, as part of its continuing effort to reduce paperwork
burdens, invites the general public and the Office of Management and
Budget (OMB) to comment on the information collections contained in
this NPRM, as required by the Paperwork Reduction Act of 1995, Pub. L.
104-13. Public and agency comments are due at the same time as other
comments on this NPRM; OMB notification of action is due 70 days from
date of publication of this NPRM in the Federal Register. Comments
should address: (a) whether the proposed collection of information is
necessary for the proper performance of the functions of the
Commission, including whether the information shall have practical
utility; (b) the accuracy of the Commission's burden estimates; (c)
ways to enhance the quality, utility, and clarity of the information
collected; and (d) ways to minimize the burden of the collection of
information on the respondents, including the use of automated
collection techniques or other forms of information technology.
OMB Approval Number: 3060-0715.
Title: Implementation of the Telecommunications Act of 1996:
Telecommunications Carriers' Use of
[[Page 20365]]
Customer Proprietary Network Information and Other Customer
Information.
Form No.: N/A.
Type of Review: Proposed Collections.
Respondents: Businesses or other for profit.
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Number of Total annual
Title responses Estimated time per response burden (hours)
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Proposed Foreign Storage of CPNI....... 10 78.5 hours.......................... 785
Proposed Foreign Maintenance of CPNI of 4,832 30 minutes.......................... 2,416
all U.S.-Based Customers' Records.
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Synopsis of Further Notice of Proposed Rulemaking
I. Further Notice of Proposed Rulemaking
1. Implementation of sections 222(a) and (b). The Commission in the
Notice of Proposed Rulemaking (NPRM) focused on issues relating to the
implementation of sections 222(c)-(f). Based on various responses from
parties, we now seek further comment on three general issues that
principally involve carrier duties and obligations established under
sections 222(a) and (b) of the Act. Specifically, section 222(a)
requires telecommunications carriers ``to protect the confidentiality
of proprietary information of, and relating to, other telecommunication
carriers, equipment manufacturers, and customers, including
telecommunication carriers reselling telecommunications services
provided by a telecommunications carrier.'' Section 222(b) provides
that ``a telecommunications carrier that receives or obtains
proprietary information from another carrier for purposes of providing
any telecommunications service shall use such information only for such
purpose, and shall not use such information for its own marketing
efforts.''
A. Customer Right to Restrict Carrier Use of CPNI for Marketing
Purposes
2. Section 222(c)(1) prohibits carriers from using, disclosing, or
permitting access to CPNI without customer approval for purposes other
than those expressly provided in sections 222(c)(1) (A) and (B), and
those in connection with the exceptions established in sections
222(d)(1)-(3). Section 222, however, is silent on whether a customer
has the right to restrict a telecommunications carrier from using,
disclosing, or permitting access to CPNI within the circumstances
defined by subsections 222(c)(1) (A) and (B). While the Notice referred
to customers' ``rights to restrict access to their CPNI,'' it did so in
the context of when carriers must seek approval for CPNI use for
purposes outside the scope of the exceptions in sections 222(c)(1)(A)
and (B).
3. One view is that customers should be able to restrict carrier
use of CPNI for all marketing purposes, even within the customer's
total service offering. This position may be supported by the privacy
protection in section 222(a), which imposes on every telecommunications
carrier ``a duty to protect the confidentiality of proprietary
information of, and relating to * * * customers * * *,'' as well as by
the principle of customer control implicitly embodied in section
222(c). In addition, interpreting section 222 to permit customers to
restrict all marketing use of CPNI could be viewed as furthering the
privacy-competition balance struck in section 222, insofar as such a
right would allow customers to prevent carrier marketing practices that
they found objectionable as their service relationship with the carrier
grew. Under this view, the only limitations on the customer's right to
restrict uses of CPNI within sections 222(c)(1)(A) and (B) arguably
would be those ``required by law'' in accordance with section
222(c)(1), as well as those set forth in section 222(d). We seek
comment on this issue of whether customers have a right to restrict all
marketing uses of CPNI. Parties supporting a particular interpretation
should state the statutory as well as policy basis for their conclusion
and should demonstrate why other conclusions are not justified.
B. Protections for Carrier Information and Enforcement Mechanisms
4. We seek comment on what, if any, safeguards are needed to
protect the confidentiality of carrier information, including that of
resellers and information service providers, that are in addition to
those adopted in this accompanying order. We note that Congress
expressly protected carrier information in section 222(a), as well as
in the specific limitations on the use of that information in section
222(b). We believe that Congress' goals of promoting competition and
preserving customer privacy will be furthered by protecting the
competitively-sensitive information of other carriers, including
resellers and information service providers, from network providers
that gain access to such information through their provision of
wholesale services. Therefore, we seek comment on what, if any,
additional regulations or safeguards are necessary to further this
goal. These safeguards, for example, may include personnel and
mechanical access restrictions. Parties identifying specific safeguards
should comment explicitly on the costs and benefits of imposing such
regulation.
5. We also seek comment on what, if any, further enforcement
mechanisms we should adopt to ensure carrier compliance with our rules,
or that may be necessary to encourage appropriate carrier discharge of
their duty under section 222(a) to protect the confidentiality of
customer information. We note, for example, that the Commission in
other proceedings has sought to compensate carriers who have become
victims of anticompetitive behavior, as well as to streamline and
update the formal complaint process in order to promote the policies of
the 1996 Act. Parties identifying specific enforcement mechanisms
should comment explicitly on the costs and benefits of imposing such
regulation.
C. Foreign Storage of, and Access to, Domestic CPNI
6. The Federal Bureau of Investigation (FBI) asks the Commission to
regulate the foreign storage of, and foreign-based access to, CPNI of
U.S. customers who subscribe to domestic telecommunications services
(domestic CPNI). The FBI contends that vital law enforcement, public
safety, national security, business, and personal privacy reasons
justify a prohibition under section 222 on carriers storing domestic
CPNI in foreign countries, for any purpose, including billing and
collection. The FBI further maintains that permitting direct foreign
access or foreign-storage of CPNI would seriously undermine important
U.S. governmental, business, and privacy-based protections afforded to
CPNI under other international and bilateral treaties. According to the
FBI, the Commission has the authority to prohibit such foreign storage
or access based upon our jurisdiction conferred in section 222. We seek
comment on the FBI's proposal. In particular, we seek
[[Page 20366]]
comment on whether the duty in section 222(a) upon all
telecommunications carriers to protect the confidentiality of
customers' CPNI, or any other provision, permits and/or requires us to
prohibit the foreign storage or access to domestic CPNI.
7. As an exception to this administrative prohibition, the FBI
suggests that foreign storage or access to domestic CPNI may be
permitted upon informed written customer approval. When a U.S. domestic
customer consents to having his or her CPNI stored or accessed from a
foreign country, the FBI further proposes, however, that we require
carriers to keep a copy of that customer's CPNI record within the U.S.
for public safety, law enforcement, and national security reasons, so
that such information is available promptly to law enforcement. We seek
comment on whether requiring written customer consent to store or
access CPNI from a foreign country and maintaining duplicate CPNI
records in the U.S are necessary to protect customer confidentiality
under section 222(a) or any other provision.
8. Finally, the FBI also requests that we require carriers to
maintain copies of the CPNI of all U.S.-based customers, regardless of
whether they are U.S. domestic customers, because of the need for
prompt, secure, and confidential law enforcement, public safety, or
national security access to such information, pursuant to lawful
authority. The FBI cites the need of such information for
investigations and as trial evidence. We seek comment on this proposal.
II. Procedural Issues
B. Further Notice of Proposed Rulemaking
1. Ex Parte Presentations
9. This matter shall be treated as a ``permit-but-disclose''
proceeding in accordance with the Commission's ex parte rules. 47 CFR
1.1200 et seq. Persons making oral ex parte presentations are reminded
that memoranda summarizing the presentations must contain summaries of
the substance of the presentations and not merely a listing of the
subjects discussed. More than a one or two sentence description of the
views and arguments presented is generally required. See 47 CFR
1.1206(b)(2), as revised. Other rules pertaining to oral and written
presentations are set forth in section 1.1206(b) as well.
2. Initial Paperwork Reduction Act Analysis
10. This Further Notice contains a proposed information collection.
As part of its continuing effort to reduce paperwork burdens, we invite
the general public and the Office of Management and Budget (OMB) to
take this opportunity to comment on the information collections
contained in this Further Notice, as required by the Paperwork
Reduction Act of 1995, Pub. L. 104-13. Public and agency comments are
due at the same time as other comments on this Further Notice; OMB
comments are due July 6, 1998. Comments should address: (a) whether the
proposed collection of information is necessary for the proper
performance of the functions of the Commission, including whether the
information shall have practical utility; (b) the accuracy of the
Commission's burden estimates; (c) ways to enhance the quality,
utility, and clarity of the information collected; and (d) ways to
minimize the burden of the collection of information on the
respondents, including the use of automated collection techniques or
other forms of information technology.
3. Initial Regulatory Flexibility Act Analysis
11. As required by the Regulatory Flexibility Act (RFA), as
amended, the Commission has prepared this present Initial Regulatory
Flexibility Analysis (IRFA) of the expected significant economic impact
on small entities by the policies and rules proposed in this Further
Notice of Proposed Rulemaking (Further Notice). Written public comments
are requested on this IRFA. Comments must be identified as responses to
the IRFA and must be filed by the deadlines for comments on the Further
Notice. The Commission will send a copy of the Further Notice,
including this IRFA, to the Chief Counsel for Advocacy of the Small
Business Administration. See 5 U.S.C. 603(a). In addition, the Further
Notice and IRFA (or summaries thereof) will be published in the Federal
Register. See id.
a. Need for, and Objectives of, the Proposed Rules
12. The Commission is issuing the Further Notice to seek comment on
whether customers may restrict a carrier's use of CPNI for all
marketing purposes, even within sections 222(c)(1)(A) and (B). The
Commission also seeks comment on what, if any, additional further
safeguards may be needed to protect the confidentiality of carrier
information, including that of resellers and information service
providers, and on what further enforcement mechanisms, if any, should
be adopted to ensure carrier compliance with the rules adopted pursuant
to the Second Report and Order. The Commission seeks comment on whether
the duty in section 222(a) upon all telecommunications carriers to
protect the confidentiality of customers' CPNI, or any other provision,
permits or requires the Commission to prohibit the foreign storage of,
or access to domestic CPNI, as requested by the FBI based on their
national security concerns.
b. Legal Basis
13. The Further Notice is adopted pursuant to sections 1, 4(i),
222, and 303(r) of the Communications Act of 1934, as amended, 47
U.S.C. 151, 154(i), 222, and 303(r).
c. Description and Estimate of the Number of Small Entities to Which
the Proposed Rules Will Apply
14. Consistent with our conclusions in the present Second Report
and Order, our rules apply to all telecommunications carriers;
therefore, any new rules or changes in our rules adopted as a result of
the Further Notice might impact small entities, as described in the
Final Regulatory Flexibility Analysis supra. For a list of the small
entities to which the proposed rules would apply, see the Second Report
and Order Final Regulatory Flexibility Analysis supra Part X.A.1.c
(Description and Estimate of the Number of Small Entities to Which the
Proposed Rules will Apply). We hereby incorporate that description and
estimate into this IRFA. These entities include telephone companies,
wireline carriers and service providers, local exchange carriers,
interexchange carriers, competitive access providers, operator service
providers, pay telephone operators, wireless carriers, cellular service
carriers, mobile service carriers, broadband PCS licensees, narrowband
PCS licensees, SMR licensees, and resellers. We discussed supra the
number of small businesses falling within both of the SIC categories,
and attempted to refine further those estimates to correspond with the
categories of telephone companies that are commonly used under our
rules.
d. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements
15. Because we have not made any tentative conclusions or suggested
proposed rules, we are unable at this time to describe any projected
reporting, recordkeeping, or other compliance requirements. We have
discussed generally in the Further Notice, supra Part IX, however, the
possibility that such proposals, if adopted, might entail additional
obligations for carriers.
[[Page 20367]]
e. Steps Taken To Minimize Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
16. As noted supra, we seek comment on whether customers may
restrict a carrier's use of CPNI for all marketing purpose, and on
what, if any, additional safeguards may be needed to protect the
confidentiality of carrier information, as well as what further
enforcement mechanisms, if any, should be adopted to ensure carrier
compliance with our rules. In addition, we seek comment on whether the
duty in section 222(a) upon all telecommunications carriers to protect
the confidentiality of customers' CPNI, or any other provision, permits
or requires the Commission to prohibit the foreign storage of, or
access to domestic CPNI. Consistent with our rules in the Second Report
and Order, our intent is to further the statutory principle that
customers must have the opportunity to protect the information they
view as sensitive and personal from use and disclosure by carriers.
Because we have not proposed any rules, at this juncture, we are unable
to forecast the economic impact on small entities.
f. Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rules
17. None.
4. Comment Filing Procedures
18. Pursuant to applicable procedures set forth in sections 1.415
and 1.419 of the Commission's rules, interested parties may file
comments on or before March 30, 1998, and reply comments on or before
April 14, 1998. To file formally in this proceeding, you must file an
original and six copies of all comments, reply comments, and supporting
comments. If you want each Commissioner to receive a personal copy of
your comments, you must file an original and eleven copies. Comments
and reply comments should be sent to Office of the Secretary, Federal
Communications Commission, 1919 M Street, N.W., Room 222, Washington,
D.C. 20554, with a copy to Janice Myles of the Common Carrier Bureau,
1919 M Street, N.W., Room 544, Washington, D.C. 20554. Parties should
also file one copy of any documents filed in this docket with the
Commission's copy contractor, International Transcription Services,
Inc., 1231 20th Street, N.W., Washington, D.C. 20036. Comments and
reply comments will be available for public inspection during regular
business hours in the FCC Reference Center, 1919 M Street, N.W., Room
239, Washington, D.C. 20554.
19. Comments and reply comments must include a short and concise
summary of the substantive arguments raised in the pleading. Comments
and reply comments must also comply with section 1.49 and all other
applicable sections of the Commission's Rules. We also direct all
interested parties to include the name of the filing party and the date
of the filing on each page of their comments and reply comments. All
parties are encouraged to utilize a table of contents, regardless of
the length of their submission.
20. Parties are also asked to submit comments and reply comments on
diskette. Such diskette submissions would be in addition to and not a
substitute for the formal filing requirements. Parties submitting
diskettes should submit them to Janice Myles of the Common Carrier
Bureau, 1919 M Street, N.W., Room 544, Washington, D.C. 20554. Such a
submission should be on a 3.5-inch diskette formatted in an IBM
compatible form using MS DOS 5.0 and WordPerfect 5.1 software. The
diskette should be submitted in ``read only'' mode. The diskette should
be clearly labeled with the party's name, proceeding, type of pleading
(comment or reply comments) and date of submission. The diskette should
be accompanied by a cover letter.
21. You may also file informal comments or an exact copy of your
formal comments electronically via the Internet at http://
dettifoss.fcc.gov:8080/cgi-bin/ws.exe/beta/ecfs/upload.hts>. For
information on filing comments via the Internet, please see
ecfs@fcc.gov>. Only one copy of electronically-filed comments must be
submitted. You must put the docket number of this proceeding in the
body of the text if you are filing by Internet. You must note whether
an electronic submission is an exact copy of formal comments on the
subject line. You also must include your full name and Postal Service
mailing address in your submission.
III. Ordering Clauses
22. Accordingly, It is ordered that pursuant to sections 1, 4(i),
222 and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C.
151, 154(i), 222 and 303(r), a Further Notice of Proposed Rulemaking is
hereby Adopted.
23. It is further ordered that the Commission's Office of Public
Affairs, Reference Operations Division, shall send a copy of this
Further Notice of Proposed Rulemaking, including the associated Initial
Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of
the Small Business Administration, in accordance with paragraph 605(b)
of the Regulatory Flexibility Act, 5 U.S.C. Section 601 et seq. (1981).
List of Subjects
47 CFR Part 22
Communications common carriers, Reporting and recordkeeping
requirements.
47 CFR Part 64
Communications common carriers, Reporting and recordkeeping
requirements, Telephone.
Federal Communications Commission.
Magalie Roman Salas,
Secretary.
[FR Doc. 98-10741 Filed 4-23-98; 8:45 am]
BILLING CODE 6712-01-P
