[Federal Register Volume 63, Number 119 (Monday, June 22, 1998)]
[Proposed Rules]
[Pages 33890-33892]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-16511]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 22 and 64
[CC Docket No. 96-115; DA 98-971]
Telecommunications Carriers' Use of Customer Proprietary Network
Information and Other Customer Information
AGENCY: Federal Communications Commission.
ACTION: Clarification; proposed rule.
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SUMMARY: The Order released May 21, 1998 clarifies various issues
pertaining to the Second Report and Order and Further Notice of
Proposed Rulemaking released February 26, 1998.
FOR FURTHER INFORMATION CONTACT: Brent Olson, Attorney, Common Carrier
Bureau, Policy and Program Planning Division, (202) 418-1580.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order
adopted and released May 21, 1998. The full text of this Order is
available for inspection and copying during normal business hours in
the FCC Reference Center, 1919 M St., NW., Room 239, Washington, DC.
The complete text also may be obtained through the World Wide Web, at
http://www.fcc.gov/Bureaus/Common Carrier/Orders/da98971.wp, or may be
purchased from the Commission's copy contractor, International
Transcription Service, Inc., (202) 857-3800, 1231 20th St., NW.,
Washington, DC. 20036.
Synopsis of Order on Reconsideration
I. Introduction
1. On February 26, 1998, the Commission released a Second Report
and Order and Further Notice of Proposed Rulemaking, 63 FR 20326, April
24, 1998 (Second Report and Order), interpreting and implementing,
among other things, the portions of section 222 of the Communications
Act of 1934, as amended, that govern the use and disclosure of, and
access to, customer proprietary network information (CPNI) by
telecommunications carriers. Since the release of the Second Report and
Order, a number of parties have requested that the Commission clarify
various issues pertaining to that order. In response to these requests,
the Common Carrier Bureau issues this order clarifying the Second
Report and Order as follows:
(a) Independently-derived information regarding customer premises
equipment (CPE) and information services is not CPNI and may be used to
market CPE and information services to customers in conjunction with
bundled offerings.
(b) A customer's name, address, and telephone number are not CPNI.
(c) A carrier has met the requirements for notice and approval
under section 222 and the Commission's rules where it has both provided
annual notification to, and obtained prior written authorization from,
customers with more than 20 access lines in accordance with the
Commission's former CPNI rules.
(d) Although a carrier must ensure that its certification of
corporate compliance with the Commission's CPNI rules is made publicly
available, it is not required to file this certification with the
Commission.
II. Clarification of Marketing Uses of Customer Information Related
to CPE or Information Services
2. Section 222(c)(1) establishes the limited circumstances in which
carriers can use, disclose, or permit access to CPNI without first
obtaining customer approval. In interpreting section 222(c)(1) in the
Second Report and Order, the Commission adopted an approach that allows
carriers to use CPNI, without first obtaining customer approval, to
market improvements or enhancements to the package of
telecommunications services the carrier already provides to a
particular customer, which it referred to as the ``total service
approach.''
3. The Commission's discussion, however, did not specifically
address a carrier's ability to use CPNI when its customers obtain their
telecommunications service as part of a bundled package that includes
non-telecommunications service offerings, such as CPE or certain
information services.
4. We make clear that, when a customer purchases CPE or information
services from a carrier that are bundled with a telecommunications
service, the carrier subsequently may use any customer information
independently derived from the carrier's prior sale of CPE to the
customer or the customer's subscription to a particular information
service offered by the carrier in its
[[Page 33891]]
marketing of new CPE or a similar information service that is bundled
with a telecommunications service. Neither CPE nor information services
constitute ``telecommunications services'' as defined in the Act.
Therefore, any customer information derived from the carrier's sale of
CPE or from the customer's subscription to the carrier's information
service would not be ``CPNI'' because section 222(f) defines CPNI in
terms of information related to a ``telecommunications service.'' As a
result, in situations where the bundling of a telecommunications
service with CPE, information services, or other non-telecommunications
services is permissible, a carrier may use CPNI to target particular
customers in a manner consistent with the Second Report and Order, and
it also may use the customer information independently derived from the
prior sale of the CPE, the customer's subscription to a particular
information service, or the carrier's provision of other non-
telecommunications offerings to market its bundled offering.
5. In an effort to further explain a carrier's obligation in the
context of bundled offerings, we provide an example of how the
Commission's rules would apply in the CMRS context. A CMRS provider
could use CMRS-derived CPNI to target its high usage analog wireless
customers to offer them new digital wireless service plans. If such an
analog customer also had purchased previously a CMRS handset, or an
information service such as voice mail, as part of a bundled offering
from the carrier, the carrier also would have access to information
concerning the customer's purchase of the carrier's CPE and information
service that is independent from the CPNI derived from the provision of
the CMRS service. Consistent with the total service approach, the
carrier could use such customer information to market new digitally-
compatible CPE and new voice mail service in conjunction with the
offering of new digital wireless service in a single contact with the
customer, without first obtaining the customer's approval.
6. In contrast, where a particular customer has not purchased CPE
or information services from the carrier that is providing its
telecommunications services, the carrier would be subsequently
prohibited from using CPNI, without first obtaining customer approval,
to market a bundled offering of CPE or information services with
telecommunications services to such a customer. In this situation,
absent customer approval, the carrier would be using CPNI in violation
of section 222(c)(1) to market CPE or information services to a
customer with whom they had no existing relationship derived from the
carrier's sale of CPE or the customer's subscription to the carrier's
information service. Similarly, the general knowledge that all wireline
customers have a telephone would not permit carriers to use CPNI
derived from wireline service to select those individuals to whom to
market the carrier's CPE offerings.
7. We also clarify that, only where CPE or an information service
is part of a bundled offering, including a telecommunications service,
and the carrier is the existing CPE or information service provider,
could the carrier use CPNI to market a new bundled offering that
includes new CPE or similar information services. For example, carriers
cannot use CPNI to select certain high usage customers to whom they
also sold telephones, and then market only new CPE that is not part of
a new bundled plan. Section 222(c)(1)(A) permits the use of CPNI,
without first obtaining customer approval, only ``in the provision of
the telecommunications service from which such information is
derived.'' Therefore, when a carrier has identified a customer through
the use of CPNI, but is not offering a telecommunications service in
conjunction with its marketing of CPE or information services, that
carrier would be using CPNI outside the provision of the service from
which it is derived, in violation of section 222 and the Commission's
rules.
III. Customer's Name, Address, and Telephone Number
8. We clarify that a customer's name, address, and telephone number
do not fall within the definition of CPNI, set forth in section
222(f)(1).
9. We consider this information to be part of a carrier's business
record or customer list that identifies the customer and indicates how
that customer can be contacted by the carrier. Although such
information generally appears on a customer's billing statement, it
does not pertain to the ``telephone exchange service or toll service''
received by the customer, as specified by the statutory definition in
section 222(f)(1)(B). If the definition of CPNI included a customer's
name, address, and telephone number, a carrier would be prohibited from
using its business records to contact any of its customers to market
any new service that falls outside the scope of its existing service
relationship with those customers. In fact, under such an
interpretation, a carrier would not even be able to contact a single
customer in an effort to obtain permission to use their CPNI for
marketing purposes because the carrier's mere use of its customer list
to initiate contact with its customers would constitute a violation of
section 222. This anomalous result was clearly not intended by section
222. Therefore, we clarify that a carrier's use of its customers' name,
address, and telephone number for marketing purposes would not be
subject to the CPNI restrictions in section 222(c)(1) because such
information is not CPNI. Thus, under section 222 and the Commission's
rules, a carrier could contact all of its customers or all of its
former customers, for marketing purposes, by using a customer list that
contains each customer's name, address, and telephone number, so long
as it does not use CPNI to select a subset of customers from that list.
IV. Notice and Written Approval Under the Computer III CPNI
Framework
10. Prior to the adoption of the Telecommunications Act of 1996,
the framework established under the Commission's Computer III regime
governed the use of CPNI by the BOCs, AT&T, and GTE to market CPE and
enhanced services. Two important components of this Computer III
framework were: (1) a carrier's obligation to provide an annual
notification of CPNI rights to multi-line customers regarding enhanced
services, as well as a similar notification requirement regarding CPE
that applied only to the BOCs, and (2) a carrier's obligation to obtain
prior written authorization from business customers with more than 20
access lines to use CPNI to market enhanced services. We clarify that
in circumstances where a carrier has provided annual notification and
received prior written authorization from customers with more than
twenty access lines, the requirements for notice and approval under
section 222, and the associated Commission rules, are satisfied for
those customers.
11. We find that carriers that have complied with the Computer III
notification and prior written approval requirement in order to market
enhanced services to business customers with more than 20 access lines
are also in compliance with section 222 and the Commission's rules.
Such carriers may rely on their previous compliance with the Computer
III notification and approval requirements to market enhanced services
to business customers with more than 20 access lines without taking any
additional steps to notify such customers of their CPNI rights or to
obtain customer approval to use CPNI to market enhanced services to
such customers.
[[Page 33892]]
V. Safeguards
12. As one of several CPNI safeguards, the Commission required in
the Second Report and Order each carrier to certify that it is in
compliance with the Commission's CPNI rules. In describing a carrier's
duty, the Commission stated that each carrier must ``submit a
certification'' and that the certification ``must be made publicly
available.'' We clarify that the Commission's use of the word
``submit'' in the order was not intended to require carriers to file
such certifications with the Commission. Rather, the order directs
carriers to ensure only that these corporate certifications be made
publicly available.
VI. Ordering Clauses
13. 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), and authority delegated thereunder pursuant to
sections 0.91 and 0.291 of the Commission's rules, 47 CFR 0.91, 0.291,
this Order is hereby adopted.
Federal Communications Commission.
Richard K. Welch,
Acting Deputy Chief, Common Carrier Bureau.
[FR Doc. 98-16511 Filed 6-19-98; 8:45 am]
BILLING CODE 6712-01-P
