[Senate Report 108-423]
[From the U.S. Government Publishing Office]
108th Congress Report
SENATE
2d Session 108-423
_______________________________________________________________________
Calendar No. 810
WIRELESS 411 PRIVACY ACT
__________
R E P O R T
OF THE
COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
on
S. H.R. deg. 1963
together with
MINORITY VIEWS
DATE deg.December 7, 2004.--Ordered to be printed
SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
one hundred eighth congress
second session
JOHN McCAIN, Arizona, Chairman
TED STEVENS, Alaska ERNEST F. HOLLINGS, South Carolina
CONRAD BURNS, Montana DANIEL K. INOUYE, Hawaii
TRENT LOTT, Mississippi JOHN D. ROCKEFELLER IV, West
KAY BAILEY HUTCHISON, Texas Virginia
OLYMPIA J. SNOWE, Maine JOHN F. KERRY, Massachusetts
SAM BROWNBACK, Kansas JOHN B. BREAUX, Louisiana
GORDON SMITH, Oregon BYRON L. DORGAN, North Dakota
PETER G. FITZGERALD, Illinois RON WYDEN, Oregon
JOHN ENSIGN, Nevada BARBARA BOXER, California
GEORGE ALLEN, Virginia BILL NELSON, Florida
JOHN E. SUNUNU, New Hampshire MARIA CANTWELL, Washington
FRANK LAUTENBERG, New Jersey
Jeanne Bumpus, Staff Director and General Counsel
Rob Freeman, Deputy Staff Director
Samuel Whitehorn, Democratic Staff Director and Chief Counsel
Margaret Spring, Democratic Senior Counsel
Calendar No. 810
108th Congress Report
SENATE
2d Session 108-423
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WIRELESS 411 PRIVACY ACT
_______
December 7, 2004.--Ordered to be printed
_______
Mr. McCain, from the Committee on Commerce, Science, and
Transportation, submitted the following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany S. 1963]
The Committee on Commerce, Science, and Transportation, to
which was referred the bill joint resolution deg. (S.
H.R. deg. 1963) TITLE deg. to amend the
Communications Act of 1934 to protect the privacy rights of
subscribers to wireless communications services, having
considered the same, reports favorably thereon without
amendment deg. with amendments deg. with an amendment
(in the nature of a substitute) and recommends that the bill
joint resolution deg. (as amended) do pass.
Purpose of the Bill
The purpose of this legislation is to amend section 332(c) of
the Communications Act of 1934 (47 U.S.C. 332(c)) by adding a
new paragraph (9) to: (1) require providers of wireless
directory assistance services to obtain the express prior
authorization of a subscriber before listing his or her
wireless telephone number in a directory assistance database;
(2) require such providers to remove the wireless telephone
number of any subscriber from any directory assistance database
upon request and without any charge to the subscriber; (3)
require telecommunications carriers to avoid disclosing on
their customer bills any wireless telephone numbers of
consumers who have indicated such a preference to their
wireless carriers; (4) prohibit the publishing (in printed,
electronic, or other form), sale, or other dissemination of a
wireless telephone number without consent; and (5) prohibit
wireless directory assistance providers from charging consumers
for exercising any of their rights provided under this
legislation.
Background and Needs
Wireless service providers have developed plans to create a
nationwide directory of wireless telephone numbers for those
subscribers who wish to be reachable on their wireless phones
through directory assistance services, also known as ``411''
services. Some wireless subscribers, including consumers
without wireline phones, professionals working outside an
office environment, and small business owners providing
services away from a central location, are increasingly
requesting that service providers make their numbers more
widely available to the public. Industry efforts to create a
nationwide directory, however, have raised privacy concerns for
consumers who wish to keep their wireless phone numbers
private, and who are uncertain whether they will be provided
with a choice to do so under proposed directory services.
According to The Pierz Group, an independent research and
analysis group examining wireless directory services, an
estimated 4.8 million wireless subscribers (or approximately 3
percent of wireless subscribers nationwide) have listed their
phone numbers in a published directory--either in phone books
or in directories used for operator services. The Pierz Group
found that a majority of these listings are for subscribers,
such as contractors and other home service professionals, whose
businesses require them to travel within a particular
geographic region where their customers are located. \1\
Additionally, a survey released by The Pierz Group on August
30, 2004, found that 11 percent, or nearly 18 million wireless
subscribers, would list their numbers in public directories
without any privacy protections if those services were offered
by wireless carriers today. According to the report, this
represents a five-fold increase over the past year (from 2
percent to 11 percent) of wireless subscribers that would now
publicly list their wireless numbers without any privacy
protections. The Pierz Group believes a principal reason for
this result is increased consumer confidence in the enforcement
of telemarketing rules following the effective implementation
of the national Do-Not-Call registry in 2003. \2\
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\1\ Kathleen A. Pierz, Adding Mobile Numbers to the U.S. Directory
Assistance/Enquiry Database, p. 48 (June 30, 2004).
\2\ Kathleen A. Pierz, Consumers and the Mobile 411 Directory: A
National Consumer Research Study to Assess Consumer Attitudes toward
Adding Mobile Numbers to the Directory Assistance/Enquiry Database
(``Consumer Research Study''), p. 15 (August 30, 2004).
---------------------------------------------------------------------------
Despite the demand for listing by a small number of
subscribers even without privacy protections, participating
wireless carriers have pledged to address broader consumer
concerns about wireless number privacy by taking steps to
protect consumers' privacy preferences. Some consumer privacy
groups, however, continue to raise concerns over the risks of
creating a large, multi-carrier database of wireless numbers
and whether industry's proposals to include privacy protections
are sufficient.
Since wireless telephone service was first introduced,
wireless consumers have considered their numbers private and
assumed they retained ultimate control over who would have
access to their telephone numbers. In addition, because
wireless customers in the U.S. pay for all in- and out-bound
calls (unlike European markets where the calling party pays),
concerns still remain about consumers incurring unwanted
charges or exhausting allotted minutes of use by receiving
calls they do not want, even if they have large buckets of
minutes included in their service package and therefore charges
would likely be minimal. Given the industry's expressed pledge
to provide privacy protections sought by consumer and privacy
groups is whether privacy requirements and consumer protections
should be required by law, or whether market forces are
sufficient to protect consumers.
The primary concerns surrounding the wireless number
directory center over two issues: who would have access to
subscribers' numbers, and what hurdles (including additional
costs) face subscribers who decide to have their numbers
omitted from such a directory? Proponents of the wireless phone
directory assert that the vendor chosen to implement the
directory is currently working with carriers to ensure that the
database they put in place will be secure and responsive to
consumer concerns about preventing or limiting general
accessibility to their listed wireless number and related
subscriber information. In particular, participating carriers
have indicated that the wireless directory services they are
proposing would take some or all of the following measures to
protect consumer privacy:
provide robust notice and choice to their
subscribers regarding any proposed directory services,
ensuring that subscribers must first opt in before
their numbers are listed in any directory assistance
database;
enable subscribers to keep their numbers out
of a directory assistance database at no additional
charge;
prohibit sharing of subscriber numbers with
third parties, particularly telemarketers; and
prohibit the publishing in written,
electronic, or otherwise web-accessible form of any
subscriber numbers listed in a directory.
According to The Pierz Group's most recent survey, if these
protections were guaranteed, up to 52 percent of wireless
subscribers, or 84.2 million customers, would be willing to
list their wireless phone numbers in a directory assistance
service.
Although the participating national wireless carriers have
committed to voluntarily adopt the privacy and consumer
protections outlined above, consumer and privacy advocates
argue that these policies have yet to appear in many of the
contracts governing the terms of service between the wireless
carriers and their new or existing customers.
National wireless carriers who are participating in the
proposed multi-company directory and have agreed to these
standards believe that preemptive legislation mandating such
requirements is unnecessary in the competitive wireless
industry, and that it will restrict carriers from creating more
robust business-driven solutions to meet consumer demands as
they evolve. Consumer and privacy rights activists advocate the
same privacy measures being considered by the carriers, but
argue that Congress should establish legally binding baseline
requirements to ensure that wireless companies do not alter
their policies as their business models change.
Legislative History
On November 25, 2003, Senator Specter introduced S. 1963, the
``Wireless 411 Privacy Act''. The bill is currently cosponsored
by Senators Boxer, Dayton, Enzi, Kennedy, Lautenberg, Leahy,
Nelson, and Schumer. Identical legislation was also introduced
in the 108th Congress in the Senate by Senator DeWine (S. 1973)
and in the House of Representatives by Rep. Pitts (H.R. 3558).
Both Senate bills, S. 1963 and S. 1973, were referred to the
Committee on Commerce, Science, and Transportation.
On September 21, 2004, the Committee held a hearing on S.
1963. Witnesses at the hearing included Senator Specter as well
as a diverse group of representatives from several companies,
an industry association, a public interest group, and a private
party, all interested in the privacy regulation of wireless
directory assistance services.
On September 22, 2004, the Committee met in open executive
session to consider an amendment in the nature of a substitute
to S. 1963 offered by Senator Boxer that made several
substantive changes to the bill's provisions, as introduced.
The amendment was adopted by a roll call vote of 12-10 and the
bill was ordered to be reported, as amended.
Estimated Costs
In accordance with paragraph 11(a) of rule XXVI of the
Standing Rules of the Senate and section 403 of the
Congressional Budget Act of 1974, the Committee provides the
following cost estimate, prepared by the Congressional Budget
Office:
S. 1963--Wireless 411 Privacy Act
S. 1963 would prohibit wireless telephone providers from
listing subscribers' numbers in a directory unless the
subscribers have authorized such services. Wireless telephone
providers also would be required to remove a subscriber's
number from any wireless directory assistance database if
requested by a subscriber and without any charge to that
subscriber.
Enacting S. 1963 could affect direct spending and receipts
because providers who violate the provisions of the bill could
be subject to civil or criminal penalties. Based on information
from the Federal Communications Commission, CBO expects that
there would be few violations of the bill's provisions. Thus,
CBO estimates that any collections for civil or criminal
penalties would not be significant. In addition, because the
agency expects a relatively high degree of compliance with the
bill's provisions, CBO estimates that any costs associated with
the enforcing the bill's requirements, which would be subject
to the availability of appropriated funds, would not be
significant.
S. 1963 contains intergovernmental mandates as defined in
the Unfunded Mandates Reform Act (UMRA), but CBO estimates that
the resulting costs for state, local, and tribal governments
would be minimal and would not exceed the threshold established
in UMRA ($60 million in 2004, adjusted annually for inflation).
Section 3(F) would specifically preempt state and local laws
that require wireless telephone providers to publish
directories of the numbers they serve. CBO is not aware of any
such laws--based on conversations with state and local
officials--and states generally are moving toward the standard
that would be established in S. 1963. Therefore, CBO estimates
that any associated costs would be minimal.
CBO has not completed an analysis of the private-sector
mandates in the bill. That analysis will be provided later in a
separate report.
The CBO staff contacts for this estimate are Susanne S.
Mehlman (for federal costs), and Sarah Puro (for the state,
local, and tribal impact). This estimate was approved by Peter
H. Fontaine, Deputy Assistant Director for Budget Analysis.
Regulatory Impact Statement
In accordance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee provides the
following evaluation of the regulatory impact of the
legislation, as reported:
NUMBER OF PERSONS COVERED
S. 1963 would establish Federal requirements regarding the
use of consumers' wireless telephone numbers in directory
assistance databases provided by wireless service providers and
their affiliates or agents. In this respect, the bill would
cover any consumer or provider of a wireless telephone service
in the United States for which a telephone number is used.
Additionally, S. 1963 requires every telecommunications carrier
to not disclose in its billing information provided to
customers any wireless telephone number information of
subscribers who wish to keep that information private.
Therefore, the legislation would also cover every subscriber of
telecommunications services that receives billing information
about calls made to or from wireless telephone numbers, and any
carrier that provides such information to its subscribers.
ECONOMIC IMPACT
S. 1963 would require that wireless carriers providing
directory assistance services containing subscribers' telephone
numbers (1) comply with federally mandated notice, consent and
removal standards in order to provide the service, (2) refrain
from charging consumers for certain related services, including
any election to keep their numbers unlisted, (3) refrain from
publishing, in printed, electronic, or other form, or selling
or otherwise disseminating any contents of directory assistance
service databases, and (4) establish methods to relay
information about its subscribers' privacy preferences (with
respect to their wireless telephone numbers) to other
telecommunications carriers that may publish the full number in
a customer billing statement. Although one national wireless
carrier has indicated it will not provide such directory
assistance services and other national carriers have indicated
that they would provide these services only under substantially
similar restrictions, the legislation would nonetheless create
compliance costs on such providers, as well as all
telecommunications carriers whose customer bills may disclose
wireless telephone numbers, in the form of equipment upgrades
or personnel additions in order to meet the new Federal
requirements. Such expenditures may have an economic impact on
such businesses and the wireless industry in general, and the
costs may be passed on to consumers of wireless and other
telecommunications services. However, according to The Pierz
Group, the introduction of a wireless directory assistance
service is estimated to bring in nearly $2 billion in
incremental revenues for the industry by 2008, which would be
generated from additional calls to directory assistance
services as well as from additional minutes of use on the
network. These projected revenues may offset many of the
potential costs resulting from this legislation.
PRIVACY
S. 1963 would likely increase consumer privacy by restricting
the use and publication of wireless telephone numbers in
directory assistance databases absent strict requirements that
consumers are sufficiently informed and consent to such use or
publication. Such restrictions should result in a reduced
likelihood of wireless subscribers receiving unwanted telephone
calls. In this regard, the legislation is similar to the stated
privacy goals of existing telemarketing regulations, which
already ban autodialed telemarketing calls (including text
messages) to wireless telephones. Additionally, because the
legislation would prohibit wireless service providers from
charging a fee to keep consumers' numbers unlisted (a practice
permitted for wireline local exchange carriers), it is likely
that more consumers will choose to keep their wireless
telephone numbers private by not participating in the wireless
directory assistance service.
PAPERWORK
S. 1963 is expected to have minimal or no impact on current
paperwork levels.
Section-by-Section Analysis
Section 1. Short title
Section 1 would set forth the short title of the bill as the
``Wireless 411 Privacy Act.''
Section 2. Findings
Section 2 would set forth Congress's factual findings in
support of the legislation.
Section 3. Consumer control of wireless phone numbers
Section 3 would amend section 332(c) of the Communications
Act of 1934 (47 U.S.C. 332(c)) by adding a new paragraph 9 to
provide for wireless consumer privacy protection.
Subparagraph (A) of paragraph (9) would prohibit wireless
carriers (and their direct or indirect affiliates or agents)
from including wireless telephone information of any current
subscriber in any directory assistance database unless: (1) the
carrier first provides a separate, conspicuous notice to the
wireless subscriber of the right not to be listed, and (2) the
carrier obtains express prior authorization from the subscriber
to be included in the directory and such authorization has not
been subsequently withdrawn.
Subparagraph (B) of paragraph (9) would require wireless
carriers (and their direct or indirect affiliates or agents) to
remove the wireless telephone number of any subscriber from any
directory assistance database upon request and without any
charge to the subscriber.
Subparagraph (C) of paragraph (9) would prohibit
telecommunication carriers from disclosing in customer bills
any wireless telephone number that a wireless subscriber has
requested of its own wireless carrier to not disclose.
Subparagraph (C), however, would permit telecommunications
carriers to disclose a portion of such a wireless number so
long as the actual number could not be readily ascertained, a
practice sometimes referred to as ``masking'' (i.e., such a
wireless number may appear on a bill as ``202-228-XXXX'' or in
some similarly masked fashion).
Subparagraph (D) of paragraph (9) would prohibit wireless
carriers (and their direct or indirect affiliates or agents)
from publishing, in printed, electronic, or other form, or from
selling or otherwise disseminating, the contents of any
wireless directory assistance service database (or any portion
or segment of one) unless: (1) the carrier first provides a
separate, conspicuous notice to the wireless subscriber of the
right not to be listed, and (2) the carrier obtains express
prior authorization from the subscriber to be included in the
directory and such authorization has not been subsequently
withdrawn.
Subparagraph (E) of paragraph (9) would prohibit wireless
carriers from charging subscribers a fee for exercising any of
their rights provided under this section (i.e., choosing to not
participate in a wireless directory assistance database).
Subparagraph (F) of paragraph (9) would preempt State and
local government imposition of requirements on wireless
carriers (and their direct or indirect affiliates or agents)
that are inconsistent with the requirements of paragraph (9).
Subparagraph (G) of paragraph (9) would set forth certain
definitions for use in this section. In particular, ``wireless
directory assistance service'' means any service that connects
a calling party to a wireless subscriber when such calling
party does not already possess such subscriber's wireless
telephone number information. Additionally, ``wireless
telephone number information'' means the telephone number,
electronic address, and any other identifying information by
which a calling party may reach a wireless subscriber,
including such subscriber's name and address.
Rollcall Votes in Committee
In accordance with paragraph 7(c) of rule XXVI of the
Standing Rules of the Senate, the Committee provides the
following description of the record votes during its
consideration of S. 1963:
Senator Boxer offered an amendment in the nature of a
substitute. By a rollcall vote of 12 yeas and 10 nays as
follows, the amendment was adopted:
YEAS--12 NAYS--10
Mrs. Hutchison Mr. Stevens\1\
Ms. Snowe Mr. Burns
Mr. Hollings Mr. Lott
Mr. Inouye\1\ Mr. Brownback\1\
Mr. Rockefeller Mr. Smith
Mr. Breaux Mr. Fitzgerald\1\
Mr. Dorgan Mr. Ensign
Mr. Wyden Mr. Allen
Mrs. Boxer Mr. Sununu
Mr. Nelson Mr. McCain
Ms. Cantwell
Mr. Lautenberg
\1\By proxy
MINORITY VIEWS OF SENATOR ALLEN
S. 1963 is unnecessary and counterproductive for an industry
that has a proven track record of innovation, lower prices, and
protecting consumer privacy. The six largest wireless carriers,
representing more than three-quarters of all subscribers, \1\
have specifically committed to this Committee that they will
safeguard the privacy of wireless phone numbers, either by
creating a directory assistance database that includes only the
numbers of subscribers who affirmatively choose to be listed
through an opt-in method or by not participating in any
wireless directory assistance program. Those carriers who are
planning a database have further committed not to charge
subscribers who elect to keep their wireless numbers unlisted
or if they elect to remove their numbers from the database. In
testimony before the Committee, the wireless industry also
assured us that wireless numbers from the directory assistance
database will not be published in a directory and that the
aggregated database will not be sold to any third-party or be
available anywhere on the Internet. Finally, child privacy will
be protected because customers must be 18 years or older to
sign a contract and choose whether to be listed in the
database. In the face of these commitments, I see no need for
the bill.
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\1\ Implementation of Section 6002(b) of the Omnibus Budget
Reconciliation Act of 1993; Annual Report and Analysis of Competitive
Market Conditions With Respect to Commercial Mobile Service, Ninth
Report, FCC 04-216 para.20 & Table 4 (rel. Sept. 28, 2004).
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Legislating in advance of any evidence of a problem is not
only unnecessary in this case, it is also counterproductive.
The wireless industry has thrived in the deregulatory
environment established by Congress in 1993 and is now one of
the country's most competitive businesses. More than 90 percent
of Americans live in markets served by four or more wireless
operators, and a nearly ubiquitous 98 percent of Americans live
in a market served by three or more operators. Competition has
driven wireless carriers to offer better service at lower
prices. Carriers compete on the basis of service and feature
options and calling plans, including lower prices, free
voicemail, caller ID, and 3-way calling. Competitive forces in
the wireless industry will discipline market participants more
effectively than any regulator or regulation can.
Imposing government rules for a wireless service offering
would represent a marked and unjustified departure from the
successful bipartisan policy of deregulation. Faced with
unnecessary government regulation, carriers may decide not to
offer a directory assistance database at all, leaving small
businesses and others who rely substantially or even
exclusively on their wireless phones no other choice but to pay
to have their number listed in a landline directory--if they
have that option at all, which many do not. The bill may even
deter future innovations and industry initiatives for fear
government mandates will be added even before the first
customer signs up.
Representative of the problems with this bill is the
requirement that all telecommunications carriers, wireline as
well as wireless, ``mask'' wireless telephone number
information in the bills they send to their customers. While
seemingly innocuous, compliance with this mandate would be
costly and onerous. Carriers would essentially have to create a
separate database of customers who elected not to have their
number included in the directory assistance database, and every
wireline and wireless carrier would have to check bills against
that database to remove any numbers of customers who had not
opted into the directory. No carrier currently has the
technology to create the required database, query it, and
reflect the results on bills. Requiring the creation of a
separate database as a condition of providing directory
assistance creates a very real risk that the entire directory
assistance project will be deferred or even abandoned, to the
detriment of consumers who desire such a resource.
Let me be clear that consumer privacy must be effectively
protected, in the context of wireless services and otherwise.
If wireless carriers do not act in conformance with the
commitments they have made to us, I would not hesitate to
support remedial legislation. In this case, however, passing a
law when there no evidence of harm and every indication that
statutory intervention is unneeded not only puts the cart
before the horse, it will discourage the private sector from
even trying to develop non-regulatory solutions to such matters
as privacy protection. For these reasons, I oppose S. 1963.
George Allen.
Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, the Committee states that the
bill as reported would make no change to existing law. deg.
In compliance with paragraph 12 of rule XXVI of the Standing
Rules of the Senate, changes in existing law made by the bill,
as reported, are shown as follows (existing law proposed to be
omitted is enclosed in black brackets, new material is printed
in italic, existing law in which no change is proposed is shown
in roman):
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, the Committee states that, in its
opinion, it is necessary to dispense with the requirements of
that paragraph in order to expedite the business of the
Senate. deg.
COMMUNICATIONS ACT OF 1934
SEC. 332. MOBILE SERVICES.
[47 U.S.C. 332]
(a) Factors which Commission must consider.--In taking
actions to manage the spectrum to be made available for use by
the private mobile services, the Commission shall consider,
consistent with section 1 of this Act, whether such actions
will--
(1) promote the safety of life and property;
(2) improve the efficiency of spectrum use and reduce
the regulatory burden upon spectrum users, based upon
sound engineering principles, user operational
requirements, and market-place demands;
(3) encourage competition and provide services to the
largest feasible number of users; or
(4) increase interservice sharing opportunities
between private mobile services and other services.
(b)(1) The Commission, in coordinating the assignment of
frequencies to stations in the private mobile services and in
the fixed services (as defined by the Commission by rule),
shall have authority to utilize assistance furnished by
advisory coordinating committees consisting of individuals who
are not officers or employees of the Federal Government.
(2) The authority of the Commission established in this
subsection shall not be subject to or affected by the
provisions of part III of title 5, United States Code, or
section 3679(b) of the Revised Statutes (31 U.S.C. 665(b)).
(3) Any person who provides assistance to the Commission
under this subsection shall not be considered, by reason of
having provided such assistance, a Federal employee.
(4) Any advisory coordinating committee which furnishes
assistance to the Commission under this subsection shall not be
subject to the provisions of the Federal Advisory Committee
Act.
(c) Regulatory treatment of mobile services.--
(1) Common carrier treatment of commercial mobile
services.--(A) A person engaged in the provision of a
service that is a commercial mobile service shall,
insofar as such person is so engaged, be treated as a
common carrier for purposes of this Act, except for
such provisions of title II as the Commission may
specify by regulation as inapplicable to that service
or person. In prescribing or amending any such
regulation, the Commission may not specify any
provision of section 201, 202, or 208, and may specify
any other provision only if the Commission determines
that--
(i) enforcement of such provision is not
necessary in order to ensure that the charges,
practices, classifications, or regulations for
or in connection with that service are just and
reasonable and are not unjustly or unreasonably
discriminatory;
(ii) enforcement of such provision is not
necessary for the protection of consumers; and
(iii) specifying such provision is consistent
with the public interest.
(B) Upon reasonable request of any person providing
commercial mobile service, the Commission shall order a
common carrier to establish physical connections with
such service pursuant to the provisions of section 201
of this Act. Except to the extent that the Commission
is required to respond to such a request, this
subparagraph shall not be construed as a limitation or
expansion of the Commission's authority to order
interconnection pursuant to this Act.
(C) The Commission shall review competitive market
conditions with respect to commercial mobile services
and shall include in its annual report an analysis of
those conditions. Such analysis shall include an
identification of the number of competitors in various
commercial mobile services, an analysis of whether or
not there is effective competition, an analysis of
whether any of such competitors have a dominant share
of the market for such services, and a statement of
whether additional providers or classes of providers in
those services would be likely to enhance competition.
As a part of making a determination with respect to the
public interest under subparagraph (A)(iii), the
Commission shall consider whether the proposed
regulation (or amendment thereof) will promote
competitive market conditions, including the extent to
which such regulation (or amendment) will enhance
competition among providers of commercial mobile
services. If the Commission determines that such
regulation (or amendment) will promote competition
among providers of commercial mobile services, such
determination may be the basis for a Commission finding
that such regulation (or amendment) is in the public
interest.
(D) The Commission shall, not later than 180 days
after the date of enactment of this subparagraph,
complete a rulemaking required to implement this
paragraph with respect to the licensing of personal
communications services, including making any
determinations required by subparagraph (C).
(2) Non-common carrier treatment of private mobile
services.--A person engaged in the provision of a
service that is a private mobile service shall not,
insofar as such person is so engaged, be treated as a
common carrier for any purpose under this Act. A common
carrier (other than a person that was treated as a
provider of a private land mobile service prior to the
enactment of the Omnibus Budget Reconciliation Act of
1993) shall not provide any dispatch service on any
frequency allocated for common carrier service, except
to the extent such dispatch service is provided on
stations licensed in the domestic public land mobile
radio service before January 1, 1982. The Commission
may by regulation terminate, in whole or in part,
theprohibition contained in the preceding sentence if the Commission
determines that such termination will serve the public interest.
(3) State preemption.--(A) Notwithstanding sections
2(b) and 221(b), no State or local government shall
have any authority to regulate the entry of or the
rates charged by any commercial mobile service or any
private mobile service, except that this paragraph
shall not prohibit a State from regulating the other
terms and conditions of commercial mobile services.
Nothing in this subparagraph shall exempt providers of
commercial mobile services (where such services are a
substitute for land line telephone exchange service for
a substantial portion of the communications within such
State) from requirements imposed by a State commission
on all providers of telecommunications services
necessary to ensure the universal availability of
telecommunications service at affordable rates.
Notwithstanding the first sentence of this
subparagraph, a State may petition the Commission for
authority to regulate the rates for any commercial
mobile service and the Commission shall grant such
petition if such State demonstrates that--
(i) market conditions with respect to such
services fail to protect subscribers adequately
from unjust and unreasonable rates or rates
that are unjustly or unreasonably
discriminatory; or
(ii) such market conditions exist and such
service is a replacement for land line
telephone exchange service for a substantial
portion of the telephone land line exchange
service within such State.
The Commission shall provide reasonable opportunity for
public comment in response to such petition, and shall,
within 9 months after the date of its submission, grant
or deny such petition. If the Commission grants such
petition, the Commission shall authorize the State to
exercise under State law such authority over rates, for
such periods of time, as the Commission deems necessary
to ensure that such rates are just and reasonable and
not unjustly or unreasonably discriminatory.
(B) If a State has in effect on June 1, 1993, any
regulation concerning the rates for any commercial
mobile service offered in such State on such date, such
State may, no later than 1 year after the date of
enactment of the Omnibus Budget Reconciliation Act of
1993, petition the Commission requesting that the State
be authorized to continue exercising authority over
such rates. If a State files such a petition, the
State's existing regulation shall, notwithstanding
subparagraph (A), remain in effect until the Commission
completes all action (including any reconsideration) on
such petition. The Commission shall review such
petition in accordance with the procedures established
in such subparagraph, shall complete all action
(including any reconsideration) within 12 months after
such petition is filed, and shall grant such petition
if the State satisfies the showing required under
subparagraph (A)(i) or (A)(ii). If the Commission
grants such petition, the Commission shall authorize
the State to exercise under State law such authority
over rates, for such period of time, as the Commission
deems necessary to ensure that such rates are just and
reasonable and not unjustly or unreasonably
discriminatory. After a reasonable period of time, as
determined by the Commission, has elapsed from the
issuance of an order under subparagraph (A) or this
subparagraph, any interested party may petition the
Commission for an order that the exercise of authority
by a State pursuant to such subparagraph is no longer
necessary to ensure that the rates for commercial
mobile services are just and reasonable and not
unjustly or unreasonably discriminatory. The Commission
shall provide reasonable opportunity for public comment
in response to such petition, and shall, within 9
months after the date of its submission, grant or deny
such petition in whole or in part.
(4) Regulatory treatment of communications satellite
corporation.--Nothing in this subsection shall be
construed to alter or affect the regulatory treatment
required by title IV of the Communications Satellite
Act of 1962 of the corporation authorized by title III
of such Act.
(5) Space segment capacity.--Nothing in this section
shall prohibit the Commission from continuing to
determine whether the provision of space segment
capacity by satellite systems to providers of
commercial mobile services shall be treated as common
carriage.
(6) Foreign ownership.--The Commission, upon a
petition for waiver filed within 6 months after the
date of enactment of the Omnibus Budget Reconciliation
Act of 1993, may waive the application of section
310(b) to any foreign ownership that lawfully existed
before May 24, 1993, of any provider of a private land
mobile service that will be treated as a common carrier
as a result of the enactment of the Omnibus Budget
Reconciliation Act of 1993, but only upon the following
conditions:
(A) The extent of foreign ownership interest
shall not be increased above the extent which
existed on May 24, 1993.
(B) Such waiver shall not permit the
subsequent transfer of ownership to any other
person in violation of section 310(b).
(7) Preservation of local zoning authority.--
(A) General authority.--Except as provided in
this paragraph, nothing in this Act shall limit
or affect the authority of a State or local
government or instrumentality thereof over
decisions regarding the placement,
construction, and modification of personal
wireless service facilities.
(B) Limitations.--
(i) The regulation of the placement,
construction, and modification of
personal wireless service facilities by
any State or local government or
instrumentality thereof--
(I) shall not unreasonably
discriminate among providers of
functionally equivalent
services; and
(II) shall not prohibit or
have the effect of prohibiting
the provision of personal
wireless services.
(ii) A State or local government or
instrumentality thereof shall act on
any request for authorization to place,
construct, or modify personal wireless
service facilities within a reasonable
period of time after the request is
duly filed with such government or
instrumentality, taking into account
the nature and scope of such request.
(iii) Any decision by a State or
local government or instrumentality
thereof to deny a request to place,
construct, or modify personal wireless
service facilities shall be in writing
and supported by substantial evidence
contained in a written record.
(iv) No State or local government or
instrumentality thereof may regulate
the placement, construction, and
modification of personal wireless
service facilities on the basis of the
environmental effects of radio
frequency emissions to the extent that
such facilities comply with the
Commission's regulations concerning
such emissions.
(v) Any person adversely affected by
any final action or failure to act by a
State or local government or any
instrumentality thereof that is
inconsistent with this subparagraph
may, within 30 days after such action
or failure to act, commence an action
in any court of competent jurisdiction.
The court shall hear and decide such
action on an expedited basis. Any
person adversely affected by an act or
failure to act by a State or local
government or any instrumentality
thereof that is inconsistent with
clause (iv) may petition the Commission
for relief.
(C) Definitions.--For purposes of this
paragraph--
(i) the term ``personal wireless
services'' means commercial mobile
services, unlicensed wireless services,
and common carrier wireless exchange
access services;
(ii) the term ``personal wireless
service facilities'' means facilities
for the provision of personal wireless
services; and
(iii) the term ``unlicensed wireless
service'' means the offering of
telecommunications services using duly
authorized devices which do not require
individual licenses, but does not mean
the provision of direct-to-home
satellite services (as defined in
section 303(v)).
(8) Mobile services access.--A person engaged in the
provision of commercial mobile services, insofar as
such person is so engaged, shall not be required to
provide equal access to common carriers for the
provision of telephone toll services. If the Commission
determines that subscribers to such services are denied
access to the provider of telephone toll services of
the subscribers' choice, and that such denial is
contrary to the public interest, convenience, and
necessity, then the Commission shall prescribe
regulations to afford subscribers unblocked access to
the provider of telephone toll services of the
subscribers' choice through the use of a carrier
identification code assigned to such provider or other
mechanism. The requirements for unblocking shall not
apply to mobile satellite services unless the
Commission finds it to be in the public interest to
apply such requirements to such services.
(9) Wireless consumer privacy protection.--
(A) In general.--A provider of commercial
mobile services, or any direct or indirect
affiliate or agent of such a provider, may not
include the wireless telephone number
information of any subscriber in any wireless
directory assistance service database unless--
(i) the mobile service provider
provides a conspicuous, separate notice
to the subscriber informing the
subscriber of the right not to be
listed in any wireless directory
assistance service; and
(ii) the mobile service provider
obtains express prior authorization for
listing from such subscriber, separate
from any authorization obtained to
provide such subscriber with commercial
mobile service, or any calling plan or
service associated with such commercial
mobile service, and such authorization
has not been subsequently withdrawn.
(B) Cost-free de-listing.--A provider of
commercial mobile services, or any direct or
indirect affiliate or agent of such a provider,
shall remove the wireless telephone number
information of any subscriber from any wireless
directory assistance service database upon
request by that subscriber and without any cost
to the subscriber.
(C) Protection of wireless phone numbers.--A
telecommunications carrier shall not disclose
in its billing information provided to
customers wireless telephone number information
of subscribers who have indicated a preference
to their commercial mobile services provider
for not having their wireless telephone number
information disclosed. Notwithstanding the
preceding sentence, a telecommunications
carrier may disclose a portion of the wireless
telephone number in its billing information if
the actual number cannot be readily
ascertained.
(D) Publication of directories prohibited.--A
provider of commercial mobile services, or any
direct or indirect affiliate or agent of such a
provider, may not publish, in printed,
electronic, or other form, or sell or otherwise
disseminate, the contents of any wireless
directory assistance service database, or any
portion or segment thereof unless--
(i) the mobile service provider
provides a conspicuous, separate notice
to the subscriber informing the
subscriber of the right not to be
listed; and
(ii) the mobile service provider
obtains express prior authorization for
listing from such subscriber, separate
from any authorization obtained to
provide such subscriber with commercial
mobile service, or any calling plan or
service associated with such commercial
mobile service, and such authorization
has not been subsequently withdrawn.
(E) No consumer fee for retaining privacy.--A
provider of commercial mobile services may not
charge anysubscriber for exercising any of the
rights under this paragraph.
(F) State and local laws pre-empted.--To the
extent that any State or local government
imposes requirements on providers of commercial
mobile services, or any direct or indirect
affiliate or agent of such providers, that are
inconsistent with the requirements of this
paragraph, this paragraph preempts such State
or local requirements.
(G) Definitions.--In this paragraph:
(i) Calling party's identity.--The
term ``calling party's identity'' means
the telephone number of the calling
party or the name of subscriber to such
telephone, or an oral or text message
which provides sufficient information
to enable a commercial mobile services
subscriber to determine who is calling.
(ii) Unlisted commercial mobile
services subscriber.--The term
``unlisted commercial mobile services
subscriber'' means a subscriber to
commercial mobile services who has not
provided express prior consent to a
commercial mobile service provider to
be included in a wireless directory
assistance service database.
(iii) Wireless telephone number
information.--The term ``wireless
telephone number information'' means
the telephone number, electronic
address, and any other identifying
information by which a calling party
may reach a subscriber to commercial
mobile services, and which is assigned
by a commercial mobile service provider
to such subscriber, and includes such
subscriber's name and address.
(iv) Wireless directory assistance
service.--The term ``wireless directory
assistance service'' means any service
for connecting calling parties to a
subscriber of commercial mobile service
when such calling parties themselves do
not possess such subscriber's wireless
telephone number information.
(d) Definitions.--For purposes of this section--
(1) the term ``commercial mobile service'' means any
mobile service (as defined in section 3) that is
provided for profit and makes interconnected service
available (A) to the public or (B) to such classes of
eligible users as to be effectively available to a
substantial portion of the public, as specified by
regulation by the Commission;
(2) the term ``interconnected service'' means service
that is interconnected with the public switched network
(as such terms are defined by regulation by the
Commission) or service for which a request for
interconnection is pending pursuant to subsection
(c)(1)(B); and
(3) the term ``private mobile service'' means any
mobile service (as defined in section 3) that is not a
commercial mobile service or the functional equivalent
of a commercial mobile service, as specified by
regulation by the Commission.