[Federal Register Volume 62, Number 37 (Tuesday, February 25, 1997)]
[Proposed Rules]
[Pages 8414-8417]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-4760]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Chapter I

[CC Docket No. 96-115, DA 97-385]


Implementation of the Telecommunications Act of 1996: 
Telecommunications Carriers' Use of Customer Proprietary Network 
Information and Other Customer Information; Request for Further Comment 
on Specific Questions in CPNI Rulemaking

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: The Commission's Common Carrier Bureau is issuing this Public 
Notice seeking further comment to supplement the record in the 
rulemaking proceeding that the Commission initiated on May 17, 1996 to 
implement the customer proprietary network information (``CPNI'') 
requirements of section 222 of the Telecommunications Act of 1996 
(``1996 Act''). The objective of the Public Notice is to provide an 
additional opportunity for public comment on specific issues in that 
rulemaking and to provide a record for a Commission decision on those 
issues.

DATES: Comments are due on or before March 17, 1997, and reply comments 
are due on or before March 27, 1997.

ADDRESSES: Comments and reply comments should be sent to the Office of 
the Secretary, Federal Communications Commission, Room 222, 1919 M 
Street, N.W. Washington, D.C. Comments and reply comments should 
reference CC Docket No. 96-115. Parties should also send two copies of 
their comments and reply comments to Janice M. Myles of the Common 
Carrier Bureau, Room 544, 1919 M Street, N.W., Washington, D.C. 20554, 
(202)418-1577, as well as one copy to the Commission's copy contractor, 
International Transcription Service, Room 140, 2100 M Street, N.W., 
Washington, D.C. 20037, at (202)857-3800. Comments and reply comments 
will be available for public inspection during regular business hours 
in the FCC Reference Center, Room 239, 1919 M Street, N.W., Washington, 
D.C. 20554. Parties are also asked to submit comments and reply 
comments on diskette. Such diskette submissions would be in addition to 
and not a substitute for the formal filing requirements addressed 
above. Parties submitting diskettes should submit them to Janice M. 
Myles of the Common Carrier Bureau and to International Transcription 
Service at the above addresses. Each such submission should be on a 3.5 
inch diskette in an IBM compatible format using WordPerfect 5.1 for 
Windows software in a ``read only'' mode. The diskette should be 
clearly labelled with the party's name, proceeding, and date of 
submission. The diskette should be accompanied by a cover letter.

FOR FURTHER INFORMATION CONTACT: Dorothy Tyyne Attwood, Attorney, 
Common Carrier Bureau, Policy and Program Planning Division, (202) 418-
1580.

SUPPLEMENTARY INFORMATION: This is text of the Commission's Common 
Carrier Bureau's Public Notice adopted and released February 20, 1997 
(DA 97-385).

Text of Public Notice

Common Carrier Bureau Seeks Further Comment on Specific Questions in 
CPNI Rulemaking

CC DOCKET No. 96-115

    Comment Date: March 17, 1997.
    Reply Comment Date: March 27, 1997.

[[Page 8415]]

    1. On May 17, 1996, the Commission released Implementation of 
the Telecommunications Act of 1996: Telecommunications Carriers' Use 
of Customer Proprietary Network Information and Other Customer 
Information, Notice of Proposed Rulemaking, 61 FR 43031, August 20, 
1996 (NPRM), initiating a proceeding to implement the customer 
proprietary network information (CPNI) requirements of section 222 
of the Telecommunications Act of 1996 (1996 Act). The CPNI NPRM 
sought comment on, among other things: (1) the scope of the phrase 
``telecommunications service,'' as it is used in section 222; (2) 
when telecommunications carriers may use, disclose, or permit access 
to individually identifiable CPNI absent customer approval; and (3) 
the requirements for customer approval.
    2. On December 24, 1996, the Commission released Implementation 
of the Non-Accounting Safeguards of Sections 271 and 272 of the 
Communications Act of 1934, as amended, First Report and Order and 
Further Notice of Proposed Rulemaking, 62 FR 2991, January 21, 1997 
(Non-Accounting Safeguards Order), which adopted rules and policies 
governing the Bell Operating Companies' (BOCs') provision of certain 
services through section 272 affiliates. In paragraph 222 of that 
Order, the Commission concluded that the nondiscrimination 
provisions of section 272(c)(1) govern the BOCs' use of CPNI and 
that BOCs must comply with the requirements of both section 222 and 
section 272(c)(1). Section 272(c)(1) requires that a BOC not 
discriminate between its section 272 affiliate and other entities 
in, among other things, the provision of services and information. 
In paragraph 222 of the Non-Accounting Safeguards Order, however, 
the Commission deferred to the CPNI rulemaking proceeding issues 
concerning the interplay between section 222 and section 272(c)(1). 
In paragraph 300 of that Order, the Commission deferred to the CPNI 
proceeding issues that concern the interplay between the joint 
marketing restrictions of section 272(g) and section 222. The 
Commission emphasized, however, that if a BOC markets or sells the 
services of its section 272 affiliate pursuant to section 272(g), it 
must comply with the statutory requirements of section 222 and any 
rules promulgated thereunder.
    3. On February 7, 1997, the Commission released Implementation 
of the Telecommunications Act of 1996: Telemessaging, Electronic 
Publishing, and Alarm Monitoring Services, First Report and Order 
and Further Notice of Proposed Rulemaking, 62 FR 7690, February 20, 
1997 (Electronic Publishing Order), which adopted policies and rules 
governing, among other things, BOC provision of electronic 
publishing under section 274. Section 274 permits BOCs to provide 
electronic publishing services only through a ``separated 
affiliate'' or ``electronic publishing joint venture'' that meets 
certain separation, nondiscrimination, and joint marketing 
requirements. In paragraph 142 of that Order, the Commission 
deferred to the CPNI proceeding any decision on the extent, if any, 
that section 222 affects implementation of the joint marketing 
provisions of section 274. In paragraph 169 of that Order, the 
Commission also deferred to this proceeding the following issues: 
(1) Whether the term ``basic telephone service information,'' as 
defined in section 274(i)(3), includes CPNI; (2) whether section 222 
requires a BOC engaged in permissible marketing activities under 
section 274(c)(2) to obtain customer approval before using, 
disclosing, or permitting access to CPNI; and (3) whether or to what 
extent section 274(c)(2)(B) imposes any obligations on BOCs that 
use, disclose, or permit access to CPNI pursuant to a ``teaming'' or 
``business arrangement'' under that section.
    4. Comments and reply comments in the CPNI proceeding were 
received on June 11, 1996 and June 26, 1996, respectively. In view 
of the Commission's determinations in the Non-Accounting Safeguards 
and Electronic Publishing Orders, the Common Carrier Bureau (Bureau) 
seeks further comment to supplement the record in the CPNI 
proceeding on specific issues relating to the subjects previously 
noticed in this proceeding and their interplay with sections 272 and 
274. Specifically, interested parties are invited to file comments 
and reply comments on the attached list of questions. Commenters 
should address these questions in the order in which they are 
presented and should restate and highlight each question above their 
responses. Commenters should identify specific statutory language or 
legislative history that supports their arguments and address the 
impact of their positions on customer privacy and competition. The 
comments should not exceed 40 pages; reply comments should not 
exceed 25 pages. Comments should be filed on or before March 17, 
1997. Any reply comments should be filed on or before March 27, 
1997.
    5. Neither this public notice nor the attached questions resolve 
any of the issues in the CPNI rulemaking. To help focus the parties' 
responses, however, certain individual questions include assumptions 
as to how the Commission might resolve specific issues in the 
rulemaking. Commenters should not construe these assumptions or any 
other aspect of the questions as indicating how the Bureau might 
advise the Commission with regard to those issues or how the 
Commission might resolve them.
    6. Interested parties must file an original and four copies of 
their comments and reply comments with the Office of the Secretary, 
Federal Communications Commission, Room 222, 1919 M Street, N.W., 
Washington, D.C. 20554. Comments and reply comments should reference 
CC Docket No. 96-115. Parties should also send two copies of their 
comments and reply comments to Janice M. Myles of the Common Carrier 
Bureau, Room 544, 1919 M Street, N.W., Washington, D.C. 20554, (202) 
418-1577, as well as one copy to the Commission's copy contractor, 
International Transcription Service, Room 140, 2100 M Street, N.W., 
Washington, D.C. 20037, at (202) 857-3800. Comments and reply 
comments will be available for public inspection during regular 
business hours in the FCC Reference Center, Room 239, 1919 M Street, 
N.W., Washington, D.C. 20554.
    7. Parties are also asked to submit comments and reply comments 
on diskette. Such diskette submissions would be in addition to and 
not a substitute for the formal filing requirements addressed above. 
Parties submitting diskettes should submit them to Janice M. Myles 
of the Common Carrier Bureau and to International Transcription 
Service at the above addresses. Each such submission should be on a 
3.5 inch diskette in an IBM compatible format using WordPerfect 5.1 
for Windows software in a ``read only'' mode. The diskette should be 
clearly labelled with the party's name, proceeding, and date of 
submission. The diskette should be accompanied by a cover letter.
    8. For further information contact: Dorothy Tyyne Attwood, (202) 
418-1580.

Federal Communications Commission.
A. Richard Metzger, Jr.,
Deputy Chief, Common Carrier Bureau.

    * Note: This attachment will not be published in the Code of 
Federal Regulations.

Attachment

Questions

I. Interplay Between Section 222 and Section 272

A. Using, Disclosing, and Permitting Access to CPNI

    1. Does the requirement in section 272(c)(1) that a BOC may not 
discriminate between its section 272 ``affiliate and any other 
entity in the provision or procurement of * * * services * * * and 
information * * *'' mean that a BOC may use, disclose, or permit 
access to CPNI for or on behalf of that affiliate only if the CPNI 
is made available to all other entities? If not, what obligation 
does the nondiscrimination requirement of section 272(c)(1) impose 
on a BOC with respect to the use, disclosure, or permission of 
access to CPNI?
    2. If a telecommunications carrier may disclose a customer's 
CPNI to a third party only pursuant to the customer's ``affirmative 
written request'' under section 222(c)(2), does the 
nondiscrimination requirement of section 272(c)(1) mandate that a 
BOC's section 272 affiliate be treated as a third party for which 
the BOC must have a customer's affirmative written request before 
disclosing CPNI to that affiliate?
    3. If a telecommunications carrier may disclose a customer's 
CPNI to a third party only pursuant to the customer's ``affirmative 
written request'' under section 222(c)(2), must carriers, including 
interexchange carriers and independent local exchange carriers 
(LECs), treat their affiliates and other intra-company operating 
units (such as those that originate interexchange telecommunications 
services in areas where the carriers provide telephone exchange 
service and exchange access) as third parties for which customers' 
affirmative written requests must be secured before CPNI can be 
disclosed? Must the answer to this question be the same as the 
answer to question 2?

B. Customer Approval

    4. If sections 222(c)(1) and 222(c)(2) require customer 
approval, but not an affirmative

[[Page 8416]]

written request, before a carrier may use, disclose, or permit 
access to CPNI, must a BOC disclose CPNI to unaffiliated entities 
under the same standard for customer approval as is permitted in 
connection with its section 272 affiliate? If, for example, a BOC 
may disclose CPNI to its section 272 affiliate pursuant to a 
customer's oral approval or a customer's failure to request non-
disclosure after receiving notice of an intent to disclose (i.e., 
opt-out approval), is the BOC required to disclose CPNI to 
unaffiliated entities upon the customer's approval pursuant to the 
same method?
    5. If sections 222(c)(1) and 222(c)(2) require customer 
approval, but not an affirmative written request, before a carrier 
may use, disclose, or permit access to CPNI, must each carrier, 
including interexchange carriers and independent LECs, disclose CPNI 
to unaffiliated entities under the same standard for customer 
approval as is permitted in connection with their affiliates and 
other intra-company operating units?
    6. Must a BOC that solicits customer approval, whether oral, 
written, or opt-out, on behalf of its section 272 affiliate also 
offer to solicit that approval on behalf of unaffiliated entities? 
That is, must the BOC offer an ``approval solicitation service'' to 
unaffiliated entities, when it provides such a service for its 
section 272 affiliate? If so, what specific steps, if any, must a 
BOC take to ensure that any solicitation it makes to obtain customer 
approval does not favor its section 272 affiliate over unaffiliated 
entities? If the customer approves disclosure to both the BOC's 
section 272 affiliate and unaffiliated entities, must a BOC provide 
the customer's CPNI to the unaffiliated entities on the same rates, 
terms, and conditions (including service intervals) as it provides 
the CPNI to its section 272 affiliate?

C. Other Issues

    7. If, under sections 222(c)(1), 222(c)(2), and 272(c)(1), a BOC 
must not discriminate between its section 272 affiliate and non-
affiliates with regard to the use, disclosure, or the permission of 
access to CPNI, what is the meaning of section 272(g)(3), which 
exempts the activities described in sections 272(g)(1) and 272(g)(2) 
from the nondiscrimination obligations of section 272(c)(1)? What 
specific obligations with respect to the use, disclosure, and 
permission of access to CPNI do sections 222(c)(1) and 222(c)(2) 
impose on a BOC that is engaged in the activities described in 
sections 272(g)(1) and 272(g)(2)?
    8. To what extent is soliciting customer approval to use, 
disclose, or permit access to CPNI an activity described in section 
272(g)? To the extent that a party claims that CPNI is essential for 
a BOC or section 272 affiliate to engage in any of the activities 
described in section 272(g), please describe in detail the basis for 
that position. To the extent that a party claims that CPNI is not 
essential for a BOC or section 272 affiliate to engage in those 
activities, please describe in detail the basis for that position.
    9. Does the phrase ``information concerning [a BOC's] provision 
of exchange access'' in section 272(e)(2) include CPNI as defined in 
section 222(f)(1)? Does the phrase ``services * * * concerning [a 
BOC's] provision of exchange access'' in section 272(e)(2) include 
CPNI-related approval solicitation services? If such information or 
services are included, what must a BOC do to comply with the 
requirement in section 272(e)(2) that a BOC ``shall not provide any 
* * * services * * * or information concerning its provision of 
exchange access to [its affiliate] unless such * * * services * * * 
or information are made available to other providers of interLATA 
services in that market on the same terms and conditions''?
    10. Does a BOC's seeking of customer approval to use, disclose, 
or permit access to CPNI for or on behalf of its section 272 
affiliate constitute a ``transaction'' under section 272(b)(5)? If 
so, what steps, if any, must a BOC and its section 272 affiliate 
take to comply with the requirements of section 272(b)(5) for 
purposes of CPNI?
    11. Please comment on any other issues relating to the interplay 
between sections 222 and 272.
    12. Please propose any specific rules that the Commission should 
adopt to implement section 222 consistent with the provisions of 
section 272.

II. Interplay Between Section 222 and Section 274

A. Threshold Issues

    13. To what extent, if any, does the term ``basic telephone 
service information,'' as used in section 274(c)(2)(B) and defined 
in section 274(i)(3), include information that is classified as CPNI 
under section 222(f)(1)?

B. Using, Disclosing, and Permitting Access to CPNI

(i). Section 274(c)(2)(A)--Inbound Telemarketing or Referral Services

    14. Does section 274(c)(2)(A) mean that a BOC that is providing 
``inbound telemarketing or referral services related to the 
provision of electronic publishing'' to a separated affiliate, 
electronic publishing joint venture, or affiliate may use, disclose, 
or permit access to CPNI in connection with those services only if 
the CPNI is made available, on nondiscriminatory terms, to all 
unaffiliated electronic publishers who have requested such services? 
If not, what obligation does the nondiscrimination requirement of 
section 274(c)(2)(A) impose on a BOC with respect to the use, 
disclosure, or permission of access to CPNI?

(ii). Section 274(c)(2)(B)--Teaming or Business Arrangements

    15. To the extent that basic telephone service information is 
also CPNI, should section 274(c)(2)(B) be construed to mean that a 
BOC, engaged in an electronic publishing ``teaming'' or ``business 
arrangement'' with ``any separated affiliate or any other electronic 
publisher,'' may use, disclose, or permit access to basic telephone 
service information that is CPNI in connection with that teaming or 
business arrangement only if such CPNI is also made available on a 
nondiscriminatory basis to other teaming or business arrangements 
and unaffiliated electronic publishers? If not, what obligation does 
the nondiscrimination requirement of section 274(c)(2)(B) impose on 
a BOC with respect to the use, disclosure, or permission of access 
to CPNI?
    16. If section 222(c)(2) permits a BOC to disclose a customer's 
CPNI to a third party only pursuant to the customer's ``affirmative 
written request,'' does section 274(c)(2)(B) require that the 
entities, both affiliated and non-affiliated, engaged in section 274 
teaming or business arrangements with the BOC be treated as third 
parties for which the BOC must have a customer's affirmative written 
request before disclosing CPNI to such entities?

(iii). Section 274(c)(2)(C)--Electronic Publishing Joint Ventures

    17. Should section 274(c)(2)(C) be construed to mean that an 
electronic publishing joint venture be treated as a third party for 
which the BOC must have a customer's approval, whether oral, 
written, or opt-out, before disclosing CPNI to that joint venture or 
to joint venture partners?

C. Customer Approval

(i). Section 274(c)(2)(A)--Inbound Telemarketing or Referral Services

    18. Must a BOC that is providing inbound telemarketing or 
referral services to a ``separated affiliate, electronic publishing 
joint venture, affiliate, or unaffiliated electronic publisher'' 
under section 274(c)(2)(A) obtain customer approval pursuant to 
section 222(c) before using, disclosing, or permitting access to 
CPNI on behalf of such entities? If so, what forms of customer 
approval (oral, written, or opt-out) would be necessary to permit a 
BOC to use a customer's CPNI on behalf of each of these entities in 
this situation? What impact, if any, does section 222(d)(3) have on 
the forms of customer approval in connection with section 
274(c)(2)(A) activities?
    19. Must a BOC that solicits customer approval, whether oral, 
written, or opt-out, on behalf of its separated affiliate or 
electronic publishing joint venture also offer to solicit that 
approval on behalf of unaffiliated entities? That is, must the BOC 
offer an ``approval solicitation service'' to unaffiliated 
electronic publishers when it provides such a service for its 
section 274 separated affiliates, electronic publishing joint 
ventures, or affiliates under section 274(c)(2)(A)? What impact, if 
any, does section 222(d)(3) have on the BOC's obligations under 
section 274(c)(2)(A) with regard to the solicitation of a customer's 
approval during a customer-initiated call? What specific steps, if 
any, must a BOC take to ensure that any solicitation it makes to 
obtain customer approval does not favor its section 274 separated 
affiliates or electronic publishing joint ventures or affiliates 
over unaffiliated entities? If the customer approves disclosure to 
both the BOC's section 274 separated affiliates or electronic 
publishing joint ventures or affiliates and unaffiliated entities, 
must a BOC provide the customer's CPNI to the unaffiliated entities 
on the same rates, terms, and conditions (including service 
intervals) as it provides the CPNI to its section 274 separated 
affiliates or electronic publishing joint ventures or affiliates?
    20. To the extent that sections 222(c)(1) and 222(d)(3) require 
customer approval, but

[[Page 8417]]

not an affirmative written request, before a carrier may use, 
disclose, or permit access to CPNI, must a BOC disclose CPNI to 
unaffiliated electronic publishers under the same standard for 
customer approval as is permitted in connection with its section 274 
separated affiliate, electronic publishing joint venture, or 
affiliate under section 274(c)(2)(A)? If, for example, a BOC may 
disclose CPNI to its section 274 separated affiliate pursuant to the 
customer's oral or opt-out approval, is the BOC required to disclose 
CPNI to unaffiliated entities upon the customer's approval pursuant 
to the same method?

(ii). Section 274(c)(2)(B)--Teaming or Business Arrangements

    21. Must a BOC, that is engaged in a teaming or business 
arrangement under section 274(c)(2)(B) with ``any separated 
affiliate or with any other electronic publisher,'' obtain customer 
approval before using, disclosing, or permitting access to CPNI for 
such entities? What forms of customer approval (oral, written, or 
opt-out) would be necessary to permit a BOC to use a customer's CPNI 
on behalf of each of these entities in this situation?
    22. Must a BOC that solicits customer approval, whether oral, 
written, or opt-out, on behalf of any of its teaming or business 
arrangements under section 274(c)(2)(B) also offer to solicit that 
approval on behalf of other teaming arrangements and unaffiliated 
electronic publishers? That is, must the BOC offer an ``approval 
solicitation service'' to unaffiliated electronic publishers and 
teaming arrangements when it provides such a service for any of its 
teaming or business arrangements under section 274(c)(2)(B)? If so, 
what specific steps, if any, must a BOC take to ensure that any 
solicitation it makes to obtain customer approval does not favor its 
electronic publishing teaming or business arrangements over 
unaffiliated entities? If the customer approves disclosure to both 
the BOC's electronic publishing teaming or business arrangements and 
unaffiliated entities, must a BOC provide the customer's CPNI to the 
unaffiliated entities on the same rates, terms, and conditions 
(including service intervals) as it provides the CPNI to its 
electronic publishing teaming or business arrangements?
    23. To the extent that sections 222(c)(1) and 222(c)(2) require 
customer approval, but not an affirmative written request, before a 
carrier may use, disclose, or permit access to CPNI, must a BOC 
disclose CPNI to unaffiliated electronic publishers under the same 
standard for customer approval as is permitted in connection with 
its teaming or business arrangements under section 274(c)(2)(B)? If, 
for example, a BOC may disclose CPNI to a section 274 separated 
affiliate with which the BOC has a teaming arrangement pursuant the 
customer's oral or opt-out approval, is the BOC likewise required to 
disclose CPNI to unaffiliated electronic publishers or teaming 
arrangements upon obtaining approval from the customer pursuant to 
the same method?

D. Other Issues

    24. Does the seeking of customer approval to use, disclose, or 
permit access to CPNI for or on behalf of its section 274 separated 
affiliate or electronic publishing joint venture constitute a 
``transaction'' under section 274(b)(3)? If so, what steps, if any, 
must the BOC and its section 274 separated affiliate or electronic 
publishing joint venture take to comply with the requirements of 
section 274(b)(3) for purposes of CPNI?
    25. Please comment on any other issues relating to the interplay 
between sections 222 and 274.
    26. Please propose any specific rules that the Commission should 
adopt to implement section 222 consistent with the provisions of 
section 274?

[FR Doc. 97-4760 Filed 2-24-97; 8:45 am]
BILLING CODE 6712-01-P