[Federal Register Volume 61, Number 145 (Friday, July 26, 1996)]
[Proposed Rules]
[Pages 39107-39110]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19137]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 64
[CC Docket No. 93-22; CC Docket No. 96-146; FCC 96-289]
Interstate Information Services
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: The Commission adopted this Notice of Proposed Rule Making to
address possible evasions of new statutory requirements that impose
more stringent restrictions on the use of toll-free numbers to charge
callers for information services and repeal the exemption to pay-per-
call status accorded to any service provided pursuant to tariff. This
action was taken to amend the Commission's rules to ensure that these
requirements governing interstate pay-per-call and other information
services contained in the Telecommunications Act of 1996 are fully
realized.
DATES: Comments must be submitted on or before August 26, 1996. Reply
comments must be submitted on or before September 16, 1996. Written
comments by the public on the proposed and/or modified information
collections are due August 26, 1996. Written comments must be submitted
by the Office of Management and Budget (OMB) on the proposed and/or
modified information collections on or before September 24, 1996.
ADDRESSES: Federal Communications Commission, 1919 M Street N.W.,
Washington, D.C. 20554. In addition to filing comments with the
Secretary, a copy of any comments on the information collections
contained herein should be submitted to Dorothy Conway, Federal
Communications Commission, Room 234, 1919 M Street, N.W., Washington,
D.C. 20554, or via the Internet to dconway@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: Mary Romano, Enforcement Division,
Common Carrier Bureau, (202) 418-0960. For additional information
concerning the information collections contained in this NPRM contact
Dorothy Conway at (202) 418-0217, or via the Internet at
dconway@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's
Notice of Proposed Rule Making (NPRM) in CC Docket No. 96-146 [FCC 96-
289], adopted June 28, 1996 and released July 11, 1996. The full text
of the NPRM is available for inspection and copying during normal
business hours in the FCC Reference Center, Room 239, 1919 M Street,
N.W., Washington, D.C. The full text of this NPRM may also be purchased
from the Commission's duplicating contractor, International
Transcription Services, 2100 M Street, N.W., Suite 140, Washington,
D.C. 20037, (202) 857-3800. For a document relating to this NPRM, see
final rules involving interstate information services published
elsewhere in this issue.
Paperwork Reduction Act
This NPRM contains either a proposed or modified 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, Public Law 104-13. Public and agency comments are due on or
before August 26, 1996. OMB comments are due September 24, 1996.
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.
Title: Disclosure Requirements for Information Services Provided
Under a Presubscription or Comparable Arrangement.
Type of Review: New collection.
Respondents: Information providers offering services under a
presubscription or comparable arrangement.
Number of Respondents: 1,000.
Estimated Time per Response: 5.
Total Annual Burden: 5,000.
Estimated costs per respondent: $0.00.
Needs and Uses: This disclosure requirement will ensure that
consumers are fully informed about an information service before
entering into an agreement to purchase the service on a subscription
basis.
Summary of Notice of Proposed Rule Making
1. On June 28, 1996, the Commission adopted a Notice of Proposed
Rule Making (NPRM) in CC Docket No. 96-146 (released July 11, 1996; FCC
96-289) proposing changes to Part 64 of the Commission's rules which
govern the provision of interstate pay-per-call and information
services. In a companion Order, the Commission amended these rules to
conform with amendments to Section 228 of the Communications Act of
1934, as amended, (Communications Act), 47 USC Sec. 228, that were
enacted by the Telecommunications Act of 1996,
[[Page 39108]]
Public Law 104-104, (1996 Act). The NPRM proposes limited additional
rule changes intended to prevent evasion of the new statutory
requirements.
2. Through amendments to Section 228 of the Communications Act, the
1996 Act addresses abusive practices that have threatened public
confidence in toll-free numbers and left telephone subscribers
vulnerable to unexpected charges for calls to information services,
subject to disconnection of local and long-distance telephone service
for failure to pay such charges, and unable to block access to unwanted
services. In apparent efforts to avoid consumer safeguards applicable
to pay-per-call (or 900 number) services, information providers (IPs)
have offered their programs through collect calls, purported
presubscription arrangements, and tariffed-service systems that have
been available on 500, 700, 800, international and domestic POTS
(``plain old telephone service'') numbers. IPs evidently move their
services from one arrangement and dialing sequence to another in
response to new protective regulations, rulings, or enforcement
actions, sometimes with the apparent encouragement of common carriers
who pay commissions to IPs in exchange for the increased traffic
generated by information-service calls.
3. The provisions of Section 228 of the Communications Act attest
to Congress' determination that consumers should be: (1) Provided basic
information regarding the price and other material terms and conditions
applicable to interstate information services before agreeing to
purchase them; (2) able to block access to unwanted services; and (3)
protected from disconnection of basic communications services for
failure to pay information-services charges. 47 USC Sec. 228(c) (4),
(5). The revisions to Section 228 enacted by the 1996 Act are intended
to ensure that consumers are not deprived of these protections by
information services available through toll-free dialing sequences or
tariffed-service systems.
4. The Commission determined that in analyzing the effect of the
new statutory requirements, it must look not only to the practices that
are now prohibited but also to the likely responses of IPs and common
carriers who might seek to evade the statute. The Commission stated
that its consideration of possible evasions has been influenced by
awareness of past evasions that have resulted in widespread deception
and abuse. The Commission concluded that it should act now to
discourage future abuse. Accordingly, as set forth in the proposed
rules and explained below the Commission proposed certain very limited
modifications to Sections 64.1501(b), 64.1504, and 64.1510 of the
rules, which contain the presubscription definition, toll-free number
limitations, and billing requirements. We also seek comment on whether
additional regulations are necessary to protect consumers from certain
practices by common carriers involved in transmitting interstate
information services that could be interpreted as not being just and
reasonable under Section 201(b) of the Act.
I. Proposed Rule Changes
A. ``Definitions--Presubscription or Comparable Arrangement''--47 CFR
Sec. 64.1501(b)
5. While the 1996 Act requires written subscription to information
services available through toll-free numbers, written agreements are
not explicitly required for information services that might be offered
through other telephone numbers. Although virtually all complaints
involving purportedly presubscribed information services have involved
programs available through 800 numbers, the Commission expressed
concern that, without a uniform requirement for written
presubscription, the same ``instant presubscription'' abuses
experienced by 800-number callers when oral presubscription was
permissible might emerge on other dialing sequences. Accordingly, the
Commission proposed to revise the presubscription definition to include
a requirement that all presubscription arrangements (not just those
involving toll-free service) be executed in writing or, alternatively,
through payment by direct remittance, prepaid account, or debit,
credit, charge or calling card regardless of the telephone number used
to access the relevant information service. The Commission also
proposed to require explicitly that presubscription agreements must be
executed by a legally competent adult. In addition, to prevent
deceptive use of presubscription agreements tied to contests or other
promotions, the Commission proposed that the presubscription document
be separate or easily severable from any promotions or inducements. The
Commission asked commenters to consider whether safeguards should be
required to ensure that electronically transmitted presubscription
agreements are valid commercial instruments and that electronic
execution does not encourage the abuses that arose from oral execution
of presubscription contracts.
6. The Commission also proposed to add to the presubscription
definition a requirement that a consumer must use a pre-existing
credit, charge, or calling cards to obtain information services and
that an actual card must have been delivered to the party to be billed
prior to assessment of any charges. Additionally, such cards could not
operate to assess charges through automatic number identification
(ANI). The Commission stated that these proposals are intended to
prevent use of ``instant'' credit, charge, or calling cards that might
be issued by an IP during the course of a call to an information
service without confirming that the caller is, in fact, the party to be
billed.
B. ``Restrictions on the Use of Toll-Free Numbers''--47 CFR
Sec. 64.1504
7. The limitations on the use of toll-free numbers to provide
information services contained in Section 228(c)(7) of the
Communications Act are framed to apply to ``the calling party.'' Thus,
the statute explicitly protects callers to toll-free numbers from six
prohibited transactions, including connection to a pay-per-call service
and assessment of information-service charges absent a written
agreement or payment by prepaid account, debit, credit, charge, or
calling card. The Commission proposed to modify Section 64.1504 of the
rules to ensure that subscribers whose telephone lines may be used to
place calls to toll-free numbers likewise are not assessed charges for
calls to information services provided by means specifically described
in the statutory prohibitions. Thus, the Commission proposed to amend
Section 64.1504 (c), (d), and (e) to state explicitly that the
protections afforded to ``the calling party'' also apply to ``the
subscriber to the originating line.''
8. The Commission urged parties to comment on the potential
effectiveness of these provisions in combating deception and fraud that
have been associated with 800 number information services and invited
comment as to whether any other actions might be warranted to forestall
future abuse involving toll-free numbers. The Commission asked parties
to address its tentative conclusion that a carrier's billing of calls
dialed to an 800 or other toll-free number on the basis of ANI is a
violation of Section 228(c)(7)(A) of the Communications Act unless the
call involves use of telecommunications devices for the deaf. Usually,
calls to carriers' toll-free-access numbers are delivered only if a
calling card is used or the call is collect. The Commission tentatively
concluded that with the exception of calls using
[[Page 39109]]
telecommunications devices for the deaf, reliance on ANI to bill any
type of call to a toll-free number--even a carrier's toll-free-access
code--does not appear to satisfy a common carrier's statutory
obligation to provide communications service in a just and reasonable
manner under Section 201(b) of the Communications Act. The Commission
sought comment on that tentative conclusion and encouraged parties to
address whether it is appropriate to revisit issues involving use of
ANI to bill callers to toll-free numbers now, and, if so, what would be
the most effective regulatory response.
C. ``Billing and Collection of Pay-Per-Call and Similar Service
Charges''--47 CFR Sec. 64.1510
9. The Commission proposed one minor modification to Section
64.1510(c) to implement the 1996 Act's billing requirements virtually
verbatim. The Commission proposed to add language to state explicitly
that charges for presubscribed information services accessed through a
toll-free number must be displayed separately from those for local and
long-distance telephone service. The Commission asked for comment on
the costs to carriers for separate billing. In addition, the Commission
requested commenters' views as to whether current or predicted
conditions warrant adoption of a rule covering carrier billing of
presubscribed information services that are not available through toll-
free numbers.
D. Redefinition of Pay-Per-Call to Remove the Tariffed Services
Exemption
10. The Commission noted that in repealing the tariffed services
exemption to pay-per-call status, Congress specifically sought to end
service arrangements in which telephone subscribers are charged high
prices for transmission of calls to ostensibly free information
services. The Commission expressed concern, however, that some entities
may seek to continue these arrangements despite Congress' clear
intention that they be ended. Under Section 228(i)(1) of the
Communications Act, imposition of a per-call or per-time-interval
charge in excess of the charge assessed for transmitting a call is a
requirement for pay-per-call status. Carriers who have invoked the
tariffed services exemption in an effort to shelter arrangements
whereby information services are provided at tariffed rates might
likewise still claim that their services do not meet the criteria for
pay-per-call status because callers purportedly are not charged for
conveyance of information but only for transmission of calls. While
recognizing that there may be some truly free information services that
callers might wish to access through a toll call, the Commission
concluded that it must take steps to ensure that the protective
purposes underlying Congress' decision to remove the tariffed services
exemption are fully realized.
11. The Commission tentatively concluded that when a common carrier
charges a telephone subscriber for a call to an interstate information
service, any form of remuneration from that carrier to an entity
providing or advertising the service, or any reciprocal arrangement
between such entities, constitutes per se evidence that the charge
levied actually exceeds the charge for transmission. Accordingly,
interstate services provided through such arrangements would fit within
the pay-per-call definition and, thus, be required to be offered
exclusively through 900 numbers. The Commission invited comment on this
tentative conclusion and, also, as to whether, in any event, such
conduct by a common carrier is just and reasonable.
II. Procedural Issues
A. Ex Parte Presentations
12. This is a non-restricted notice-and-comment rulemaking
proceeding. Ex parte presentations are permitted, except during the
Sunshine Agenda period, provided that they are disclosed as provided in
the Commission's rules. See generally 47 CFR Secs. 1.1202, 1.1203,
1.1206.
B. Initial Regulatory Flexibility Analysis
13. Pursuant to the Regulatory Flexibility Act of 1980, 5 USC 601,
the Commission concluded that the proposals contained in the NPRM may
have some impact on small entities due to the proposed requirement that
all presubscription agreements to obtain interstate information
services be executed in writing. Public comment is requested on the
initial regulatory flexibility analysis set forth fully in the NPRM.
These comments must be filed in accordance with the same filing
deadlines set for comments on the other issues in this NPRM but they
must have a separate and distinct heading designating them as responses
to the Regulatory Flexibility Analysis.
C. Comment Filing Procedures
14. Pursuant to applicable procedures set forth in Sections 1.415
and 1.419 of the Commission's rules, 47 CFR Secs. 1.415, 1.419,
interested parties may file comments on or before August 26, 1996 and
reply comments on or before September 16,1996. To file formally in this
proceeding, participants must file an original and four copies of all
comments, reply comments, and supporting comments. If participants wish
each Commissioner to have a personal copy of their comments, an
original plus nine copies must be filed. Comments and reply comments
should be sent to the Office of the Secretary, Federal Communications
Commission, Washington, D.C. 20554. Comments and reply comments will be
available for public inspection during regular business hours in the
FCC Reference Center (Room 239) of the Federal Communications
Commission, 1919 M Street, N.W., Washington, D.C. 20554.
15. Parties are asked to submit comments and reply comments on
diskette. Such diskette submission are in addition to the formal filing
requirements addressed above. Parties submitting diskettes should
submit them to Mary Romano of the Common Carrier Bureau, 2025 M Street,
N.W., Room 6120, Washington, D.C. 20554. Such submissions 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 labelled 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.
Ordering Clauses
16. It is ordered, pursuant to Sections 1, 4(i), 4(j), and 228 of
the Communications Act, 47 USC Secs. 152, 154(i), 154(j), and 228, that
a Notice of Proposed Rule Making is hereby adopted, proposing amendment
of 47 CFR Part 64 as set forth below.
17. It is further ordered that CC Docket No. 93-22 is hereby
terminated.
18. It is further ordered that the Secretary shall send a copy of
this Notice of Proposed Rule Making including the initial regulatory
flexibility analysis to the Chief Counsel for Advocacy of the Small
Business Administration, in accordance with Section 603(a) of the
Regulatory Flexibility Act.
List of Subjects in 47 CFR Part 64
Communications common carriers, Computer technology, Federal
Communications Commission, Telephone.
[[Page 39110]]
Federal Communications Commission.
William F. Caton,
Acting Secretary.
Rule Changes
Part 64 of Title 47 of the Code of Federal Regulations is proposed
to be amended as follows:
1. The authority citation for Part 64 continues to read as follows:
Authority: Sec. 4, 48 Stat. 1066, as amended; 47 USC 154, unless
otherwise noted. Interpret or apply secs. 201, 218, 226, 228, 48
Stat 1070, as amended, 1077; 47 USC 201, 218, 226, 228 unless
otherwise noted.
2. Section 64.1501(b) is revised to read as follows:
Sec. 64.1501 Definitions.
* * * * *
(b) Presubscription or comparable arrangement means an agreement to
purchase information services evidenced by:
(1) A written contractual agreement (including one transmitted
through electronic medium) between an information services provider and
a legally competent individual that is executed for the sole purpose of
arranging purchase of information services and is separate or easily
severable from any promotions or inducements, and in which:
(i) The service provider clearly and conspicuously discloses to the
consumer all material terms and conditions associated with the use of
the service, including the service provider's name and address, a
business telephone number which the consumer may use to obtain
additional information or to register a complaint, and the rates for
the service;
(ii) The service provider agrees to notify the consumer at least
one billing cycle in advance of any future rate changes;
(iii) The consumer agrees to use the service on the terms and
conditions disclosed by the service provider; and
(iv) The service provider requires the use of an identification
number or other means to prevent unauthorized access to the service by
nonsubscribers; or
(2) Disclosure of a pre-existing credit, prepaid account, debit,
charge, or calling card number, along with authorization to bill that
number: Provided, that an actual credit, charge, or calling card:
(i) Has, upon request or application, been delivered to the party
to be billed prior to assessment of charges; and
(ii) Does not operate to assess charges through automatic number
identification;
(3) Provided, that a presubscription arrangement to obtain
information services provided by means of a toll-free number shall
conform to the requirements of Sec. 64.1504(c).
3. Section 64.1504 is amended by revising introductory text of
paragraph (c) and paragraphs (d) and (e) to read as follows:
Sec. 64.1504 Restrictions on the use of toll-free numbers.
* * * * *
(c) The calling party or subscriber to the originating line being
charged for information conveyed during the call unless:
* * * * *
(d) The calling party or subscriber to the originating line being
called back collect for the provision of audio or data information
services, simultaneous voice conversation services, or products; and
(e) The calling party or subscriber to the originating line being
assessed by virtue of the caller being asked to connect or otherwise
transfer to a pay-per-call or other information service, a charge for
the call.
* * * * *
4. Section 64.1510 is amended by revising paragraph (c)(2) to read
as follows:
Sec. 64.1510 Billing and collection of pay-per-call and similar
service charges.
* * * * *
(c) * * *
(2) Clearly list the 800 or other toll-free number dialed in a
location separate from local and long distance telephone charges.
[FR Doc. 96-19137 Filed 7-25-96; 8:45 am]
BILLING CODE 6712-01-P
