[Federal Register Volume 61, Number 145 (Friday, July 26, 1996)] [Rules and Regulations] [Pages 39084-39088] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 96-19138] ======================================================================= ----------------------------------------------------------------------- FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 64 [CC Docket No. 93-22; CC Docket No. 96-146; FCC 96-289] Interstate Pay-Per-Call and Other Information Services AGENCY: Federal Communications Commission. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: The Commission adopted this Order to amend its rules governing the provision of interstate pay-per-call and other information services to conform with the requirements of Section 701 of the Telecommunications Act of 1996 which amended Section 228 of the Communications Act of 1934, as amended. The rules adopted in the Order incorporate the amendments to Section 228 virtually verbatim and are intended to protect consumers from abuses involving use of toll-free numbers and tariffed service systems to levy charges for interstate information services. EFFECTIVE DATE: December 23, 1996. FOR FURTHER INFORMATION CONTACT: Mary Romano, Enforcement Division, Common Carrier Bureau, (202) 418-0960. SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's Order in CC Docket Nos. 93-22 and 96-146 [FCC 96-289], adopted June 28, 1996 and released July 11, 1996. The full text of the Order 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 Order 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 [[Page 39085]] relating to this Order, see a proposed rule involving interstate information services published elsewhere in this issue. Paperwork Reduction Public reporting burden for collections of information is estimated as follows: ------------------------------------------------------------------------ Est. avg. Sections hours Annual per burden response ------------------------------------------------------------------------ Section 64.1504..................................... 3750 10,500 Section 64.1510..................................... 1350 540,000 ------------------------------------------------------------------------ Total Annual Burden: 550,500. Frequency of Response: On Occasion. These estimates include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collections of information. Send comments regarding these burden estimates or any other aspects of the collections of information, including suggestions for reducing the burden, to the Federal Communications Commission, Records Management Branch, Room 234, Paperwork Reduction Project, Washington, D.C. 20554 and to the Office of Management and Budget, Paperwork Reduction Project, Washington, D.C. 20503. Summary of Order: 1. On June 28, 1996, the Commission adopted an Order in CC Docket No. 93-22 and 96-146 (released July 11, 1996; FCC 96-289) that amends Part 64 of the Commission's rules to conform with the Telecommunications Act of 1996, Public Law 104-104, (1996 Act). Among other things, the 1996 Act amended Section 228 of the Communications Act of 1934, as amended, (Communications Act), 47 USC Sec. 228, to enact new restrictions on the manner in which toll-free numbers may be used to provide information services and to repeal of the statutory exemption to pay-per-call status accorded to any tariffed service under the Telephone Disclosure and Dispute Resolution Act of 1992, Public Law 102-556 (TDDRA). As set forth in the final rules and explained below, the Commission amended its pay-per-call regulations to comply with the statutory mandate that our rules reflect the new requirements of Section 228 of the Communications Act. I. Requirements of Amended Section 228 A. ``Billing for 800 Calls''--47 USC Sec. 228(c)(7) 2. The TDDRA placed limits on charging callers who place calls to toll-free numbers to reach information services. The 1996 Act amends Section 228(c) of the Communications Act to expand those restrictions. The 1996 Act adds a new prohibition on ``the calling party being assessed, by virtue of being asked to connect or otherwise transfer to a pay-per-call service, a charge for the call [to an 800 or any other toll-free number].'' 47 USC Sec. 228(c)(7)(E). The Commission added to its rules Section 64.1504(e) to codify, verbatim, this statutory provision. 3. The 1996 Act also modifies Section 228(c)(7)(C) to prohibit charging callers for calls to toll-free numbers for conveyance of information unless ``the calling party has a written agreement, including an agreement transmitted through an electronic medium,'' or ``the calling party is charged for the information * * * by means of a credit, prepaid, debit, charge, or calling card.'' 47 USC Secs. 228(c)(7)(C)(i)-(ii), (c)(9). These requirements and the Commission's new implementing regulations are explained below. 1. ``Subscription Agreements for Billing for Information Provided Via Toll-Free Calls''--47 USC Sec. 228(c)(8) 4. ``In General''--47 USC Sec. 228(c)(8)(A). The 1996 Act enumerates specific requirements that must be followed when information services are charged to callers to an 800 or other toll-free number pursuant to a written presubscription agreement. As provided in 47 USC Sec. 228(c)(8)(A)(i)-(vi), the agreement must include: (i) the rate at which charges are assessed for the information; (ii) the information provider's name; (iii) the information provider's business address; (iv) the information provider's regular business telephone number; (v) the information provider's agreement to notify the subscriber at least one billing cycle in advance of all future changes in the rates charged for the information; and (vi) the subscriber's choice of payment method, which may be by direct remit, debit, prepaid account, phone bill, or credit or calling card. The Commission added to its rules Sections 64.1504(c)(1)(i)-(vi) to codify, verbatim, these statutory requirements governing presubscription agreements to obtain information services available through a toll-free number. 5. ``Billing Arrangements''--47 U.S.C. 228(c)(8)(B). The 1996 Act prescribes new requirements for common carriers who bill telephone subscribers for information services that are available through a toll- free number and provided pursuant to a written presubscription agreement. Section 228(c)(8)(B)(i) provides that If a subscriber elects * * to pay by means of a phone bill, * * * the [written presubscription] agreement shall clearly explain that the subscriber will be assessed for calls made to the information service from the subscriber's phone line. Further, under Section 228(c)(8)(B) (ii)-(iii), any telephone bill containing such charges must display the toll-free number that was dialed to access the information service and contain a prominent disclaimer stating that local and long distance telephone service may not be disconnected for failure to pay disputed information-service charges. The Commission added to its rules Secs. 64.1504(c)(vi) and 64.1510(c) and amended Sec. 64.1510(b) to codify, virtually verbatim, these statutory requirements governing billing of presubscribed information services through a telephone bill. 6. ``Use of PINs to Prevent Unauthorized Access''--47 U.S.C. 228(c)(8)(C). The 1996 Act provides that a presubscription agreement to obtain information services through a toll-free number must include ``a unique personal identification number or other subscriber-specific identifier,'' a requirement that ``a subscriber use this number or identifier to obtain access to the information provided,'' ``instructions on its use,'' and assurance ``that services accessed by use of the subscriber's personal identification number or subscriber- specific identifier'' will be billed in the manner specified by the subscriber (e.g., ``direct remit, debit, prepaid account, phone bill, or credit or calling card''). 47 U.S.C. 228(c)(8)(C), (c)(8)(A)(vi). The Commission added to its rules Sec. 64.1504(c)(vii) to codify, virtually verbatim, these statutory requirements governing PINs. 7. ``Exceptions''--47 U.S.C. 228(c)(8)(D). The 1996 Act establishes exceptions to the requirement for written presubscription ``for calls utilizing telecommunications devices for the deaf, for directory services provided by a common carrier or its affiliate or by a local exchange carrier or its affiliate, or for any purchase of goods or of services that are not information services.'' 47 U.S.C. 228(c)(8)(D). The [[Page 39086]] Commission added to its rules Sec. 64.1504(f)(1) to codify, verbatim, these statutory exceptions to the requirement that presubscription be executed in writing for information services available through a toll- free number. 8. ``Termination of Service''--47 U.S.C. 228(c)(8)(E). The 1996 Act directs common carriers to investigate promptly complaints that a presubscribed information service accessed through an 800 or other toll-free number has not been provided in accordance with the statutory requirements. Carriers also explicitly are accorded authority to terminate service to an IP who fails to provide evidence of a written presubscription agreement for disputed charges. The Commission added to its rules Sec. 64.1503(b) to codify, virtually verbatim, statutory provisions involving common carriers' investigations of complaints and termination of service. 9. ``Treatment of Remedies''--47 U.S.C. 228(c)(8)(F). Section 228(c)(8)(F) provides that the remedies specified in Section 228(c) ``are in addition to any other remedies that are available under [the Commission's forfeiture authority in] Title V of [the Communications] Act. This provision simply specifies that both the Commission's Title V statutory penal provisions and the remedies contained in Section 228(c), (e.g., termination of service to an information provider) may be invoked against parties who violate Commission rules or orders concerning interstate information services. The Commission determined that the provision is effectively implemented by the statute alone and need not be added to our pay-per-call regulations, which govern the conduct of common carriers who transmit or bill and collect for pay- per-call or other information services. 2. ``Charges by Credit, Prepaid, Debit, Charge, or Calling Card in Absence of Agreement''--47 U.S.C. 228(c)(9) 10. The 1996 Act establishes payment by prepaid account, debit, credit, charge, or calling card as alternatives to written presubscription for information services charged to callers to 800 or other toll-free numbers provided that all such calls begin with an introductory disclosure message that-- (A) clearly states that there is a charge for the call; (B) clearly states the service's total cost per minute and any other fees for the service or for any service to which the caller may be transferred; (C) explains that the charge must be billed on either a credit, prepaid, debit, charge, or calling card; (D) asks the caller for the card number; clearly states that charges for the call begin at the end of the introductory message; and (E) clearly states that the caller can hang up at or before the end of the introductory message without incurring any charge whatsoever. 47 U.S.C. 228(c)(9) (A)-(F). The Commission added to its rules Sec. 64.1504(c)(2) to codify, verbatim, these statutory provisions governing use of a prepaid account, debit, credit, charge, or calling card to pay for information services that are accessed through an 800 or other toll-free number. 11. ``Bypass of Introductory Disclosure Message''--47 U.S.C. 228(c)(10). Under the 1996 Act, IPs may install a bypass mechanism so that repeat callers to an information service accessed through an 800 or other toll free number can ``avoid listening to the introductory message, provided that the information providers shall disable such a bypass mechanism after the institution of any price increase and for a period of time determined to be sufficient by the Federal Trade Commission to give callers adequate and sufficient notice of a price increase.'' The Commission added to its rules Sec. 64.1504(f)(2) to codify, verbatim, these statutory provisions governing mechanisms that permit repeat callers to bypass the introductory message required for all information services that are accessed through an 800 or other toll-free number and that bill through a prepaid account, debit, credit, charge, or calling card rather than by means of a presubscription agreement. B. Definitions 1. Pay-Per-Call Services--47 U.S.C. Sec. 228(i) 12. The 1996 Act redefines the term ``pay-per-call services'' by eliminating the exemption accorded to any service provided pursuant to tariff under the TDDRA. The Commission amended Section 64.1501(a) of its rules to remove the tariffed services exception. 2. Calling Card--47 U.S.C. Sec. 228(c)(11) 13. After recognizing payment by ``calling card'' as an acceptable means of obtaining information services available through a toll-free number, the 1996 Act defines a calling card as ``an identifying number or code unique to the individual, that is issued to the individual by a common carrier and enables the individual to be charged by means of a phone bill for charges incurred independent of where the call originates.'' The Commission added to its rules Section 64.1501(c) to codify, verbatim, the statutory definition of ``calling card.'' 3. Presubscription or Comparable Arrangement--47 CFR Sec. 1501(b). 14. Neither the TDDRA nor the 1996 Act defines the term ``presubscription or comparable arrangement,'' which Section 228(i)(2) establishes as an exemption to pay-per-call status. In implementing the TDDRA, however, the Commission and the FTC adopted identical definitions intended to guard against uncontrolled access to information services and to ensure that consumers receive information necessary to make informed choices about whether to subscribe to such services. The 1996 Act does not directly mandate modification of the presubscription definition contained in Section 64.1501(b) of our rules. The Commission determined, however, that certain aspects of the definition are inconsistent with statutory requirements governing presubscription to information services available through 800 or other toll-free numbers. Therefore, the Commission added to its rules Section 64.1501(b)(6) to specify that presubscription arrangements to obtain information services provided by means of an 800 or other toll-free number must conform to the requirements of Section 64.1504(c). This amendment incorporates into the Commission's general presubscription definition statutory requirements that govern 800-number presubscription. II. Procedural Issues A. Administrative Procedure Act Requirements 15. Because the rule changes set forth in Appendix A and adopted herein simply conform the Commission's rules to the statute, the Commission found for good cause that compliance with the notice and comment provisions of the Administrative Procedure Act is unnecessary. See 5 U.S.C. Sec. 553(b)(B). Moreover, to the extent that the provisions of the 1996 Act mirror proposals set forth in the Commission's Further Notice of Proposed Rule Making, Policies and Rules Implementing the Telephone Disclosure and Dispute Resolution Act, CC Docket No. 93-22, 59 FR 46806 (September 12, 1994), notice and comment requirements have been satisfied. Ordering Clauses 16. Accordingly, it is ordered, pursuant to Sections 1, 4(i), 4(j), and 228 of the Communications Act, 47 U.S.C. Secs. 152, 154(i), 154(j), and 228, that 47 CFR Part 64 IS AMENDED as set forth below, effective December 23, 1996. 17. It Is further ordered that CC Docket No. 93-22 is hereby terminated. [[Page 39087]] List of Subjects in 47 CFR Part 64 Communications common carriers, Computer technology, Federal Communications Commission, Telephone. Federal Communications Commission. William F. Caton, Acting Secretary. Rules Changes Part 64 of Title 47 of the Code of Federal Regulations is amended as follows: PART 64--MISCELLANEOUS RULES RELATING TO COMMON CARRIERS 1. The authority citation for Part 64 continues to read as follows: Authority: Sec. 4, 48 Stat. 1066, as amended; 47 U.S.C. 154, unless otherwise noted. Interpret or apply secs. 201, 218, 226, 228, 48 Stat 1070, as amended, 1077; 47 U.S.C. 201, 218, 226, 228 unless otherwise noted. 2. The heading of Subpart O of Part 64 is revised to read as follows: Subpart O--Interstate Pay-Per-Call and Other Information Services 3. Section 64.1501 is revised to read as follows: Sec. 64.1501 Definitions. For purposes of this subpart, the following definitions shall apply: (a) Pay-per-call service means any service: (1) In which any person provides or purports to provide: (i) Audio information or audio entertainment produced or packaged by such person; (ii) Access to simultaneous voice conversation services; or (iii) Any service, including the provision of a product, the charges for which are assessed on the basis of the completion of the call; (2) For which the caller pays a per-call or per-time-interval charge that is greater than, or in addition to, the charge for transmission of the call; and (3) Which is accessed through use of a 900 number; (4) Provided, however, such term does not include directory services provided by a common carrier or its affiliate or by a local exchange carrier or its affiliate, or any service for which users are assessed charges only after entering into a presubscription or comparable arrangement with the provider of such service. (b) Presubscription or comparable arrangement means a contractual agreement in which: (1) 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; (2) The service provider agrees to notify the consumer of any future rate changes; (3) The consumer agrees to use the service on the terms and conditions disclosed by the service provider; and (4) The service provider requires the use of an identification number or other means to prevent unauthorized access to the service by nonsubscribers; (5) Provided, however, that disclosure of a credit, prepaid account, debit, charge, or calling card number, along with authorization to bill that number, made during the course of a call to an information service shall constitute a presubscription or comparable arrangement if an introductory message containing the information specified in Sec. 64.1504(c)(2) is provided prior to, and independent of, assessment of any charges. No other action taken by a consumer during the course of a call to an information service, for which charges are assessed, can create a presubscription or comparable arrangement. (6) 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). (c) Calling card means an identifying number or code unique to the individual, that is issued to the individual by a common carrier and enables the individual to be charged by means of a phone bill for charges incurred independent of where the call originates. 4. Section 64.1503 is revised to read as follows: Sec. 64.1503 Termination of pay-per-call and other information programs. (a) Any common carrier assigning a telephone number to a provider of interstate pay-per-call service shall specify by contract or tariff that pay-per-call programs not in compliance with Sec. 64.1502 shall be terminated following written notice to the information provider. The information provider shall be afforded a period of no less than seven and no more than 14 days during which a program may be brought into compliance. Programs not in compliance at the expiration of such period shall be terminated immediately. (b) Any common carrier providing transmission or billing and collection services to a provider of interstate information service through any 800 telephone number, or other telephone number advertised or widely understood to be toll-free, shall promptly investigate any complaint that such service is not provided in accordance with Sec. 64.1504 or Sec. 64.1510(c), and, if the carrier reasonably determines that the complaint is valid, may terminate the provision of service to an information provider unless the provider supplies evidence of a written agreement that meets the requirements of this Sec. 64.1504(c)(1). 5. Section 64.1504 is revised to read as follows: Sec. 64.1504 Restrictions on the use of toll-free numbers. A common carrier shall prohibit by tariff or contract the use of any 800 telephone number, or other telephone number advertised or widely understood to be toll-free, in a manner that would result in: (a) The calling party or the subscriber to the originating line being assessed, by virtue of completing the call, a charge for a call; (b) The calling party being connected to a pay-per-call service; (c) The calling party being charged for information conveyed during the call unless: (1) The calling party has a written agreement (including an agreement transmitted through electronic medium) that specifies the material terms and conditions under which the information is offered and includes: (i) The rate at which charges are assessed for the information; (ii) The information provider's name; (iii) The information provider's business address; (iv) The information provider's regular business telephone number; (v) The information provider's agreement to notify the subscriber at least one billing cycle in advance of all future changes in the rates charged for the information; (vi) The subscriber's choice of payment method, which may be by direct remit, debit, prepaid account, phone bill, or credit or calling card and, if a subscriber elects to pay by means of phone bill, a clear explanation that the subscriber will be assessed for calls made to the information service from the subscriber's phone line; (vii) A unique personal identification number or other subscriber- specific identifier that must be used to obtain access to the information service and instructions on its use, and, in addition, assures that any charges for services [[Page 39088]] accessed by use of the subscriber's personal identification number or subscriber-specific identifier be assessed to subscriber's source of payment elected pursuant to paragraph (c)(1)(vi) of this section; or (2) The calling party is charged for the information by means of a credit, prepaid, debit, charge, or calling card and the information service provider includes in response to each call an introductory message that: (i) Clearly states that there is a charge for the call; (ii) Clearly states the service's total cost per minute and any other fees for the service or for any service to which the caller may be transferred; (iii) Explains that the charges must be billed on either a credit, prepaid, debit, charge, or calling card; (iv) Asks the caller for the card number; (v) Clearly states that charges for the call begin at the end of the introductory message; and (vi) Clearly states that the caller can hang at or before the end of the introductory message without incurring any charge whatsoever. (d) The calling party being called back collect for the provision of audio or data information services, simultaneous voice conversation services, or products; and (e) The calling party being assessed by virtue of the caller being asked to connect or otherwise transfer to a pay-per-call service, a charge for the call. (f) Provided, however, that: (1) Notwithstanding paragraph (c)(1) of this section, a written agreement that meets the requirements of that paragraph is not required for: (i) Calls utilizing telecommunications devices for the deaf; (ii) Directory services provided by a common carrier or its affiliate or by a local exchange carrier or its affiliate; or (iii) Any purchase of goods or of services that are not information services. (2) The requirements of paragraph (c)(2) of this section shall not apply to calls from repeat callers using a bypass mechanism to avoid listening to the introductory message: Provided, That information providers shall disable such a bypass mechanism after the institution of any price increase for a period of time determined to be sufficient by the Federal Trade Commission to give callers adequate and sufficient notice of a price increase. 6. In Section 64.1510, paragraph (b) is revised and new paragraph (c) is added to read as follows: Sec. 64.1510 Billing and collection of pay-per-call and similar service charges. * * * * * (b) Any common carrier offering billing and collection services to an entity providing interstate information services on a collect basis shall, to the extent possible, display the billing information in the manner described in paragraphs (a)(2)(i), (A), (B), (D) and (a)(2)(ii) of this section. (c) If a subscriber elects, pursuant to Sec. 64.1504(c)(1)(vi), to pay by means of a phone bill for any information service provided by through any 800 telephone number, or other telephone number advertised or widely understood to be toll-free, the phone bill shall: (1) Include, in prominent type, the following disclaimer: ``Common carriers may not disconnect local or long distance telephone service for failure to pay disputed charges for information services;'' and (2) Clearly list the 800 or other toll-free number dialed. [FR Doc. 96-19138 Filed 7-25-96; 8:45 am] BILLING CODE 6712-01-P