[Federal Register Volume 66, Number 205 (Tuesday, October 23, 2001)]
[Rules and Regulations]
[Page 53545]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-26579]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 64

[CC Docket No. 96-115; CC Docket No. 96-149; FCC 01-247]


Telecommunications Carriers' Use of Customer Proprietary Network 
Information and Other Customer Information; Implementation of the Non-
Accounting Safeguards

AGENCY: Federal Communications Commission.

ACTION: Clarification.

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SUMMARY: This document is intended to clarify the status of the 
Commission's CPNI rules after the Tenth Circuit's opinion and explains 
how parties may obtain customer consent for use of their CPNI.

FOR FURTHER INFORMATION CONTACT: Marcy Greene, Attorney Advisor, Policy 
and Program Planning Division, Common Carrier Bureau, (202) 418-2410.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's 
Clarification Order in CC Docket Nos. 96-115 and 96-149, FCC 01-247, 
adopted August 28, 2001, and released September 7, 2001. The complete 
text of this Clarification Order is available for inspection and 
copying during normal business hours in the FCC Reference Information 
Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 
20554. This document may also be purchased from the Commission's 
duplicating contractor, Qualex International, Portals II, 445 12th 
Street, SW., Room CY-B402, Washington, DC 20554, telephone 202-863-
2893, facsimile 202-863-2898, or via e-mail [email protected]. It is 
also available on the Commission's website at http://www.fcc.gov.

Synopsis of the Clarification Order

    1. In the Customer Proprietary Network Information (CPNI) Order (63 
FR 20364, April 24, 1998), the Commission stated that section 222(c)(1) 
of the Act allows a carrier to use, without the customer's prior 
approval, the customer's CPNI derived from the complete service that 
the customer subscribes to from that carrier and its affiliates, for 
marketing purposes within the existing service relationship. This is 
known as the ``total service approach.'' The Commission also concluded 
that carriers must notify the customer of the customer's rights under 
section 222 and then obtain express written, oral or electronic 
customer approval--a ``notice and opt-in'' approach--before a carrier 
may use CPNI to market services outside the customer's existing service 
relationship with that carrier. US West appealed this order to the 
Tenth Circuit. On August 16, 1999, the Commission adopted the CPNI 
Reconsideration Order (64 FR 53242, October 1, 1999) in response to a 
number of petitions for reconsideration, forbearance, and clarification 
of the CPNI Order. The CPNI Reconsideration Order, among other things, 
further clarified the total service approach. It also retained the opt-
in approach.
    2. After the Commission adopted the CPNI Reconsideration Order, the 
Tenth Circuit issued its decision in US WEST v. FCC, vacating a portion 
of the CPNI Order ``and the regulations adopted therein.'' In US WEST 
v. FCC, US WEST contended that the opt-in approach for customer 
approval in the CPNI Order violated the First and Fifth Amendments of 
the Constitution. The Tenth Circuit first questioned whether the 
government had demonstrated that the interests it put forward in 
regulating CPNI--protecting customer privacy and fostering 
competition--are substantial. The court agreed that the government had 
asserted a substantial interest in protecting customers' privacy, but 
declined to find that promoting competition was a significant 
consideration in Congress' enactment of section 222. The court 
nonetheless concluded that the government did not demonstrate that the 
CPNI regulations requiring opt-in customer approval ``directly and 
materially advanc[ed] its interests in protecting privacy and promoting 
competition.'' The court concluded that the Commission's determination 
that an opt-in requirement would best protect a consumer's privacy 
interests was not narrowly tailored as required by the First Amendment 
because the Commission had failed to adequately consider an opt-out 
option.

Effect of the US WEST Decision on the CPNI Rules

    3. The court's opinion in US WEST v. FCC analyzed only the 
constitutionality of the Commission's interpretation of the customer 
approval requirement of section 222(c)(1) of the Act by enacting the 
opt-in regime discussed above. As the Commission has found previously, 
the court's vacatur order related only to the discrete portions of the 
CPNI Order and rules requiring opt-in customer approval. Had the court 
intended to take the unusual step of vacating portions of the order and 
rules not before it, the Commission believes it would have said so 
explicitly. Accordingly, we conclude that the court sought to eliminate 
only the specific section of our rules that was before it, and that its 
vacatur order applied only to Sec. 64.2007(c), the only provision 
inextricably tied to the opt-in mechanism. The remainder of the 
Commission's CPNI rules remain in effect.

    Federal Communications Commission.
Magalie Roman Salas,
Secretary.
[FR Doc. 01-26579 Filed 10-22-01; 8:45 am]
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