[Federal Register Volume 65, Number 23 (Thursday, February 3, 2000)]
[Rules and Regulations]
[Pages 5267-5268]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-2363]



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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Chapter 1

[CC Docket No. 96-152, FCC 99-332]


Telemessaging, Electronic Publishing, and Alarm Monitoring 
Services

AGENCY:  Federal Communications Commission.

ACTION:  Final rule; denial of petition or reconsideration.

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SUMMARY:  This document declines to reconsider the Commission's 
Telemessaging and Electronic Publishing Order, declines to adopt rule 
pursuant to the Further Notice, and clarifies several points concerning 
telemessaging and electronic publishing. The intended effect is to 
promote the pro-competitive and deregulatory objectives of the 
Telecommunications Act of 1996.

EFFECTIVE DATE:  March 6, 2000.

FOR FURTHER INFORMATION CONTACT:  William Kehoe, Attorney, Common 
Carrier Bureau, Policy and Program Planning Division, (202) 418-1580. 
Further information may also be obtained by calling the Common Carrier 
Bureau's TTY number: 202-418-0484.

SUPPLEMENTARY INFORMATION:  This is a summary of the Commission's Order 
On Reconsideration adopted November 3, 1999, and released November 9, 
1999. The full text of this Order is available for inspection and 
copying during normal business hours in the FCC Reference Center, 445 
12th Street, SW, Room CY-A257, Washington, DC. The complete text also 
may be obtained through the World Wide Web, at http://www.fcc.gov/Bureaus/CommonCarrier/Orders/fcc99-332.wp, or may be purchased from the 
Commission's copy contractor, International Transcription Services, 
Inc. (202) 857-3800, 1231 20th Street, NW, Washington, DC 20036.

Regulatory Flexibility Certification

    No comments were submitted in response to the Commission's request 
for comment on its certification. In this present Order on 
Reconsideration, the Commission promulgates no additional final rules, 
and our action does not affect the previous analysis.

Synopsis of Order on Reconsideration

    1. In this Order, we address a petition for reconsideration or 
clarification of the Alarm Monitoring Order, CC Docket No. 96-152, FCC 
99-241, 64 FR 52464 (09/29/99), filed by Southwestern Bell Telephone 
Company (SBC).
    2. As part of its determination regarding the scope of the term 
``alarm monitoring service,'' the Commission enunciated the test it 
would use in assessing whether a BOC was ``engaged in the provision 
of'' alarm monitoring service in violation of section 275(a), which 
states that ``No Bell Operating Company or affiliate thereof shall 
engage in the provision of alarm monitoring services before the date 
which is 5 years after the date of enactment of the Telecommunications 
Act of 1996.'' 47 U.S.C. 275(a). As an initial matter, the Commission 
determined that the prohibition on the provision of alarm monitoring 
services did not ``flatly prohibit BOCs from entering into arrangements 
to act as sales agents on behalf of alarm monitoring services 
providers.'' At the same time, however, the Commission recognized that 
there may be instances where a BOC is not directly providing alarm 
monitoring service, but the interests of the BOC and an alarm 
monitoring service provider are so intertwined that the BOC itself may 
be considered to be ``engag[ed] in the provision'' of alarm monitoring 
service. In making this assessment, the Commission concluded that it 
would ``examine sales agency and marketing arrangements between a BOC 
and an alarm monitoring company on a case-by-case basis to determine 
whether they constitute the `provision' of alarm monitoring service.'' 
In evaluating such arrangements, the Commission determined that it 
would take into account a variety of factors, including whether the 
terms and conditions of a sales agency or marketing arrangement are 
made available to other alarm monitoring companies on a 
nondiscriminatory basis and the manner in which the BOC is being 
compensated for its services.
    3. SBC filed a petition for reconsideration or clarification of the 
Commission's Alarm Monitoring Order. SBC states that the Alarm 
Monitoring Order did not articulate how a regulatory commitment to make 
a sales agency or marketing arrangement available on a 
nondiscriminatory basis ``was germane to the `provision' analysis.'' 
SBC contends that, in assessing whether a BOC is providing alarm 
monitoring services in violation of section 275(a), the Commission need 
not, and should not, consider whether the terms and conditions of a 
BOC's sales agency or other marketing arrangement with a particular 
alarm monitoring service provider are available to other alarm 
monitoring service providers on a nondiscriminatory basis. SBC asserts, 
however, that if the Commission continues to find a BOC's relationship 
with other alarm monitoring service providers pertinent in determining 
whether a BOC is ``engag[ed] in the provision'' of alarm monitoring 
services, it should only consider whether the arrangement with a 
particular provider is non-exclusive, not whether it is available on a 
nondiscriminatory basis. According to SBC, ``such non-exclusivity would 
ensure that both the BOC and the provider would remain free to do 
business with others,'' and thus ``not `intertwined' with one another * 
* *.''
    4. In the alternative, if the Commission retains nondiscrimination 
as a factor in its analysis, SBC argues that the Commission should 
clarify that nondiscrimination is not an absolute requirement for an 
acceptable sales agency relationship. Rather, says SBC, the Commission 
should expressly affirm that nondiscrimination is not an outcome-
determinative factor, but rather is only one of a multitude of factors 
that the Commission will consider in reviewing sales agency and other 
marketing arrangements. In SBC's view a BOC should be free to 
demonstrate that based on factors other than nondiscrimination ``it has 
a legitimate sales agency relationship with an alarm service provider 
without an undue `intertwining' of interests.''
    5. The Alarm Industry Communications Committee (AICC) filed an 
opposition to SBC's petition, arguing that the statute's outright ban 
on the BOC's provision of alarm monitoring services for a period of 
five years require, as both a statutory and policy matter, that any 
sales or other marketing arrangement be made available on a 
nondiscriminatory basis in order to restrain adequately the BOC's 
incentive and ability to enter into arrangements that constitute the 
provision of alarm monitoring services. As for SBC's alternative 
request, AICC argues that SBC should be told, ``clearly and simply,'' 
that it cannot discriminate among alarm monitoring providers in its 
provision of marketing or billing and collection services. AICC asserts 
that there are numerous legal and policy reasons to forbid 
discrimination and none in its favor.
    6. As the Commission stated in the Alarm Monitoring Order, we must 
assess on a case-by-case basis whether a BOC's interests are so 
intertwined with an alarm monitoring service provider that the BOC 
itself may be considered to be ``engag[ed] in the provision'' of alarm 
monitoring service in violation of section 275(a). In making such an 
assessment, the Commission will consider a variety of factors to inform

[[Page 5268]]

our ultimate determination as to whether a BOC's sales agency or other 
marketing arrangement causes its interests to be so intertwined with 
the interests of a particular alarm monitoring service provider that 
the BOC itself may be considered to be ``engag[ed] in the provision'' 
of alarm monitoring service.
    7. In this Order, we clarify our rationale for taking into account 
whether a BOC's sales agency or other marketing arrangement is 
available on a non-discriminatory basis in assessing whether the BOC is 
engaged in the ``provision'' or alarm monitoring service We strongly 
disagree with SBC that the availability of sales agency or other 
marketing arrangements on a nondiscriminatory basis has no relevance in 
determining whether a BOC is engaged in the provision of alarm 
monitoring services. While the Commission may consider a variety of 
other factors as well, the presence of sales agency or other marketing 
arrangements with multiple alarm monitoring service providers is an 
indication that the BOC's interests in such arrangements are limited 
only to the provision of the sales agency or marketing component of the 
service. Alternatively, to the extent that a BOC makes a sales agency 
or other marketing arrangement available to any alarm monitoring 
service provider on the same terms and conditions, such availability is 
evidence that the BOC's interests are independent of, and not 
intertwined with, a particular alarm monitoring service provider. 
Therefore, in the absence of actual sales agency or other marketing 
arrangements with multiple alarm monitoring service providers, a 
commitment to make such arrangements available on a nondiscriminatory 
basis would be evidence--to be considered along with other factors--
that a BOC's interests are independent of, and distinct from, any 
particular alarm monitoring service provider. Accordingly, we do not 
disturb our previous finding that the availability of sales agency or 
other marketing arrangements on a nondiscriminatory basis is relevant 
to whether a BOC is engaged in the provision of alarm monitoring 
services.

I. Ordering Clauses

    8. Pursuant to sections 1-4, 201-205, 214, 275, and 303(r) of the 
Communications Act of 1934, as amended, 47 U.S.C. 151-154, 201-205, 
214, 275, 303(r), this Order on Reconsideration in CC Docket No. 96-152 
is adopted.
    9. The petition for reconsideration filed by Southwestern Bell 
Telephone Company is denied in its entirety, as described herein.

Federal Communications Commission.
Magalie Roman Salas,
Secretary.
[FR Doc. 00-2363 Filed 2-2-00; 8:45 am]
BILLING CODE 6712-01-M