[Federal Register Volume 68, Number 178 (Monday, September 15, 2003)]
[Rules and Regulations]
[Pages 53891-53895]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-23198]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 64

[WT Docket No. 98-100; FCC 03-203]


Forbearance From Applying Provisions of TOCSIA to CMRS Carriers

AGENCY: Federal Communications Commission.

ACTION: Final rule; clarification.

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SUMMARY: In this document we decline, with two limited exceptions, to 
forbear any further from applying provisions of the Telephone Operator 
Consumer Services Improvement Act (TOCSIA) to commercial mobile radio 
services (CMRS) aggregators and operator service providers (OSPs). In 
this Second Report and Order, we decide to forbear from applying two 
additional TOCSIA provisions: the requirement that CMRS OSPs regularly 
publish changes in their operator services, and the requirement that 
CMRS OSPs and aggregators route emergency calls. We conclude, based on 
the record in this proceeding, that the remaining TOCSIA provisions and 
its implementing regulations that apply to CMRS carriers continue to be 
in the public interest.

DATES: Effective November 14, 2003.

[[Page 53892]]


FOR FURTHER INFORMATION CONTACT: Wilbert E. Nixon, Jr., Policy and 
Rules Branch, Commercial Wireless Division, Wireless Telecommunications 
Bureau, at (202) 418-7240.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Second 
Report and Order, in WT Docket No. 98-100, FCC 03-203, adopted August 
7, 2003, and released August 20, 2003. The full text of the Second 
Report and Order is available for public inspection and copying during 
regular business hours at the FCC Reference Information Center, 445 
12th St., SW., Room CY-A257, Washington, DC 20554. The complete text 
may be purchased from the Commission's duplicating contractor: Qualex 
International, 445 12th Street, SW., Room CY-B402, Washington, DC 
20554, telephone (202) 863-2893, facsimile (202) 863-2898, or via e-
mail at [email protected].

Summary of Second Report and Order

I. Background.

A. PCIA Forbearance Order and Notice
    1. In the PCIA Forbearance Order and Notice, 13 FCC Rcd 16857 
(1998), recon. denied, 64 FR 61022 (Nov. 9, 1999), the Commission 
addressed a forbearance request by the Broadband Personal 
Communications Services Alliance of the Personal Communications 
Industry Association (PCIA) and decided, inter alia, to forbear from 
two provisions of TOCSIA for all CMRS OSPs. One of the TOCSIA-related 
provisions from which the Commission decided to forbear was the 
``unblocked access'' provision, which allows consumers access to the 
OSP of their choice. The Commission also forbore from requiring CMRS 
OSPs to file informational tariffs. However, the Commission concluded 
that the record was insufficient to support forbearance from the other 
requirements of TOCSIA. Moreover, with respect to TOCSIA's disclosure 
requirements, the Commission declined to forbear because of the ``vital 
information that disclosure provides to consumers'' and ``because there 
is no record evidence that these requirements impose an undue burden * 
* *'' Also in the PCIA Forbearance Order and Notice, the Commission 
affirmed on reconsideration the GTE Declaratory Ruling. Concurrently 
with the release of the PCIA Forbearance Order, the Commission issued 
the Notice, in which the Commission, inter alia, sought specific 
information relevant to determining whether, and in what respects, the 
Commission should forbear from applying or modifying additional TOCSIA 
requirements in the CMRS context. Although the PCIA Forbearance Order 
and the Notice are in the same document, we may refer to the PCIA 
Forbearance Order and the Notice as if they were separate documents.

II. Discussion

    2. The Commission declines, with two limited exceptions, to forbear 
from applying TOCSIA provisions to CMRS aggregators and OSPs. The 
Commission generally concludes that TOCSIA and its implementing 
regulations continue to be in the public interest in that its 
provisions ensure that transient users of mobile telephones designed 
for public use enjoy the same benefits they would have if they were 
using their own private mobile telephones.
    3. The Commission forbears, however, from applying two TOCSIA 
provisions to CMRS aggregators and OSPs where the risks of conflicting 
mandates compels forbearance and to ensure clarity for public safety. 
Specifically, the Commission forbears from requiring CMRS OSPs to 
regularly publish and make available at no cost to inquiring consumers 
written materials that describe any recent changes in the operator's 
services and in the choices available to consumers. Also, the 
Commission forbears from applying emergency call routing provisions of 
TOCSIA to CMRS aggregators and OSPs.
A. Aggregator Disclosure
    4. Background. Under Commission rules, CMRS aggregators are 
required to post the following information on or near the telephone 
instrument, in plain view of consumers: (a) The name, address, and 
toll-free telephone number of the OSP presubscribed to the telephone; 
(b) in the case of a pay telephone, the local coin rate for the pay 
telephone location; and (c) the name and address of the Commission.
    5. Discussion. The Commission declines to adopt its tentative 
conclusion to forbear from requiring aggregators to ``post'' disclosure 
information ``on or near the telephone instrument,'' in the CMRS 
context. The Commission recognizes that, due to the diminutive size of 
many mobile phones today, the requisite legible disclosure language may 
not practically fit ``on'' the mobile phone. The Commission finds that 
forbearance in this case is unnecessary, however, because it is 
entirely practicable to post disclosure information ``near'' the mobile 
phone. In the mobile phone context, aggregators will be in compliance 
with TOCSIA if they post the necessary information ``near'' the mobile 
phone so that it is received by and can be kept by end-user customers.
B. OSP Oversight of Aggregators
    6. Background. Responsibility for enforcement of the aggregator 
disclosure requirements is, in addition to being placed on the 
aggregator as described above, placed upon the OSP used by the 
aggregator. Under TOCSIA and our implementing regulations, an OSP is 
obligated to ensure, by contract or tariff, that each aggregator for 
which such provider is the presubscribed provider of operator services 
is in compliance with the aggregator disclosure requirements.
    7. Discussion. Consistent with its tentative conclusion, the 
Commission finds that the OSP oversight requirement is a necessary 
business tool to ensure that aggregators comply with their TOCSIA 
obligations. In situations where, for example, the CMRS carrier agrees 
to a contractual arrangement with an aggregator whereby it directly 
imposes charges upon members of the public, the Commission finds no 
basis for justifying forbearance from TOCSIA. Although the potential 
for abuse has been claimed to come from the aggregator because it is 
the aggregator that may most effectively take advantage of the 
consumer, in this particular context involving the existence of a 
contractual arrangement, the CMRS OSP may wield an important business 
influence over the aggregator. Similar to the wireline context, the 
Commission cannot forbear under the first prong of section 10 of the 
Communications Act of 1934 when this rule requiring such a business 
influence may serve to prevent potential abuses before they occur. In 
addition, the Commission does not believe this business function to be 
insignificant to protecting the consumer under the second prong of the 
section 10 forbearance standard.
    8. In the absence of a contract or tariff with an aggregator to 
provide OSP services or knowledge of the aggregator's activities, the 
OSP is not responsible for ensuring aggregator compliance. Section 
226(b)(1)(D) of the Communications Act of 1934 requires that each 
provider of operator services shall ``ensure, by contract or tariff, 
that each aggregator for which such provider is a presubscribed 
provider of operator services is in compliance'' with the aggregator 
service provisions of TOCSIA. This provision presupposes the existence 
of a sufficient nexus between aggregator and OSP such that a contract 
or tariff would be the appropriate mechanism on which to base the 
oversight requirement. To the extent that a CMRS OSP has a contractual 
relationship with an aggregator of its service, the CMRS OSP

[[Page 53893]]

must have a provision in the relevant contract requiring aggregator 
compliance with TOCSIA and the Commission's related rules. If a CMRS 
OSP lacks a contractual relationship with an aggregator or has no 
knowledge of the aggregator, the statutory text does not require such 
oversight by the CMRS OSP. Accordingly, PCIA's and AT&T Wireless' 
concerns that it would be impossible for a CMRS provider serving a 
mobile public phone roamer to enforce compliance by the owner 
aggregator of the mobile public phone because the CMRS provider will 
have no contractual or tariff relationship with the aggregator, are 
moot.
C. OSP Identification and Rate Disclosure
    9. Background. TOCSIA and Commission regulations also impose a 
number of requirements upon CMRS OSPs. OSPs must identify themselves, 
audibly and distinctly, to the consumer at the beginning of each 
telephone call and before the consumer incurs any charge for the call, 
a practice referred to as ``call branding.'' OSPs must also permit the 
consumer to terminate a telephone call at no charge before the call is 
connected. They must also disclose immediately to the consumer, upon 
request and at no charge to the consumer, a quotation of their rates or 
charges for the call, the methods by which such rates or charges will 
be collected, and the method by which complaints concerning such rates, 
charges, or collection practices will be resolved. Finally, the 
Commission recently added a requirement that OSPs must audibly disclose 
to consumers how to obtain the price of a call before it is connected.
    10. Discussion. The Commission declines to forbear from applying 
these TOCSIA provisions against CMRS aggregators and OSPs. In the 
Notice, the Commission asked questions designed to elicit specific 
information relevant to determining whether and in what respects the 
Commission could forbear from applying these provisions to CMRS 
providers. The Commission finds that the record does not justify 
deviating from the Commission's ruling in the PCIA Forbearance Order 
that these TOCSIA provisions should apply to the actions of CMRS 
providers.
    11. The Commission also finds that the record does not support the 
contention that requiring CMRS carriers to brand calls would cause 
customer confusion or impose unacceptably high costs on carriers. PCIA 
contends that branding can cause customer confusion because CMRS 
providers cannot always distinguish between calls from mobile phones 
designed for public use and other calls. GTE similarly contends that, 
absent an ability to identify a call as originating from an aggregator, 
CMRS carriers would have to brand every wireless call in order to 
comply with TOCSIA requirements. The Commission is not persuaded by 
these arguments. First, while the OSP branding requirement of TOCSIA 
applies to calls initiated from aggregator locations that involve 
automatic or live assistance to the consumer to arrange for billing or 
call completion, it does not apply to calls that are automatically 
completed with billing to the telephone from which the call originated, 
or to calls that are completed through an access code used by the 
consumer, with billing to an account previously established with the 
carrier by the consumer. Accordingly, TOCSIA's branding requirement 
does not apply to the vast majority of wireless calls that consumers 
make within their home calling areas, which are typically automatically 
completed and billed to the caller's telephone.
    12. Second, the Commission is not persuaded by PCIA's argument that 
the branding requirement will cause confusion or be unduly burdensome 
in the roaming context. In most cases, roaming is accomplished through 
automatic roaming arrangements that provide for automated completion 
and direct billing of calls. Thus, as in the case of automatically 
placed and billed calls within the caller's home area, automatic 
roaming calls are not subject to TOCSIA. On the other hand, the 
branding requirement does potentially apply to manual roaming calls 
made from aggregator phones, because such calls are not automatically 
billed to the originating number but are typically paid for by credit 
card. PCIA asserts that, in order to comply with this requirement, CMRS 
OSPs would have to brand all roaming calls that are not billed to the 
originating number, without knowing whether the caller is using an 
aggregator phone. The Commission does not believe this to be a 
significant burden for several reasons. First, because manual roaming 
calls make up a small percentage of all wireless calls, the number of 
calls that will actually require branding is quite small. Further, the 
commenters fail to explain how branding all manual roaming calls would 
result in significant costs to carriers or customer confusion. Because 
manual roaming calls require preliminary communication between the OSP 
and the caller to arrange for credit card billing, CMRS OSPs are likely 
to identify themselves and explain their billing requirements to end-
user customers in any event, and the Commission believes that such 
identifications and disclosures can, with minimal modifications, be 
made to comply with TOCSIA. In any case, the Commission believes that 
the benefits associated with requiring compliance with TOCSIA when 
manual roaming calls are made from aggregator phones outweigh the 
potential costs that commenters have suggested would be associated with 
ensuring such compliance. Moreover, if carriers seek to avoid 
unnecessary branding of manual roaming calls from non-aggregator 
phones, they are free to devise and implement methods to distinguish 
aggregator from non-aggregator calls.
    13. Finally, GTE argues that the rate disclosure requirement is of 
little use because the rates charged for wireless public phones are 
typically set by aggregators and that the OSP rates disclosed by the 
OSP would be only a portion of the overall rate for the call. GTE is 
mistaken about the rate disclosure requirement. The OSP's obligation is 
merely to inform the consumer of the rates it bills for and how to 
obtain the total cost of the call, including any aggregator surcharge. 
The OSP is not obliged to guess the aggregator's rate if not billed for 
by the OSP. With this important rate information from the aggregator 
and the OSP, the consumer can make an informed decision as to whether 
to place the call.
D. Call Splashing
    14. Background. TOCSIA and the implementing regulations prohibit 
OSPs from engaging in ``call splashing'' or billing for a call that 
does not reflect the originating location of the call without the 
consumer's informed consent. In the Notice, the Commission sought 
detailed information on the costs to CMRS OSPs of complying with the 
call splashing prohibition for calls made through aggregators and, to 
the extent that CMRS providers cannot distinguish between customers of 
aggregators and other users, the costs of complying with this 
prohibition on other calls as well.
    15. Discussion. The Commission declines to forbear from applying 
the call splashing provisions of TOCSIA against OSPs. The Commission 
finds that the record does not justify deviating from the Commission's 
ruling in the PCIA Forbearance Order that these TOCSIA provisions apply 
to the actions of CMRS providers. In response to the Commission's 
request for comment, PCIA and AT&T Wireless submitted no cost 
estimates, and simply argued that because of flat toll pricing, call 
splashing, even if it occurred, would not

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adversely affect charges to consumers and that there is no evidence of 
complaints that such a practice has been a problem in the CMRS context. 
The Commission rejects PCIA's and AT&T's contention that flat toll 
pricing has eliminated all possible adverse effects of call splashing. 
Even today, there are many wireless calling plans that do not include 
free long distance service and therefore providers will charge distance 
sensitive rates in some instances. Moreover, the Commission believes 
that any costs of CMRS OSPs meeting these requirements are minimal.
E. OSP Publication of Changes in Services
    16. Background. Pursuant to the relevant provision of TOCSIA, the 
Commission has required OSPs to regularly publish and make available at 
no cost to inquiring consumers written materials that describe any 
recent changes in operator services and in the choices available to 
consumers in that market.
    17. Discussion. The Commission forbears from applying the OSP 
publication provision of TOCSIA against CMRS OSPs. In this instance, 
the Commission finds that enforcement of these TOCSIA requirements is 
not necessary to ensure that charges and practices are just and 
reasonable or to protect consumers. The Commission also finds that 
forbearance from applying these requirements is in the public interest.
    18. As service providers not bound by rate regulation or 
publication requirements, CMRS carriers are generally not required to 
publish their rates and contract terms even though many of them do in 
order to remain competitive. Singling out particular CMRS services--
such as CMRS OSPs--for disparate treatment does not serve the public 
interest. Fluid and rapid price competition has long typified wireless 
services. This is especially true when the call branding and rate 
disclosure requirements of TOCSIA ensure that consumers of CMRS OSP 
services are given the CMRS OSP identification, terms and rate 
information they need to make an informed decision on whether to place 
a call on a CMRS aggregator phone. The Commission concludes that these 
call branding and rate disclosure requirements, which require CMRS OSPs 
to provide their identity, and rate or charge information, is 
sufficient to ensure just and reasonable charges and practices from 
CMRS OSPs. In that regard, the Commission also finds that enforcement 
of the OSP publication provision is not necessary for the protection of 
consumers precisely because of the unique incentives CMRS OSPs have to 
advertise their services and make information important to consumers 
available as a matter of sound business practice. In addition, the 
Commission finds that there are important public interest benefits 
associated with reducing regulatory compliance costs (i.e., those costs 
associated with the creation of the required reports, databases, 
personnel training, mailing, etc.), in light of the fact that those 
cost reductions can be translated into lower prices to consumers. 
Finally, however, the Commission encourages CMRS OSPs to provide 
voluntarily to inquiring consumers information that describes recent 
changes in operator services and in the choices available to consumers 
in the CMRS OSP market. The Commission notes that CMRS OSPs may make 
this information available to consumers by, for example, updating 
information on their websites.
F. Routing of Emergency Calls
    19. Background. TOCSIA requires that the Commission ``establish 
minimum standards for providers of operator services and aggregators to 
use in the routing and handling of emergency telephone calls.'' Under 
our rules implementing this provision, OSPs and aggregators are 
required to ensure immediate connection of emergency telephone calls to 
the appropriate emergency service of the reported location of the 
emergency, if known, and if not known, of the originating location of 
the call.
    20. Under the Commission's rules, certain mobile wireless licensees 
are required to implement basic 911 and enhanced 911 (E911) services. 
Cellular licensees, broadband Personal Communications Service (PCS) 
licensees, and certain Specialized Mobile Radio (SMR) licensees, 
collectively ``covered carriers,'' are required to meet basic and 
enhanced 911 service requirements for completing emergency calls, 
including forwarding all 911 calls without delay and relaying a 
caller's Automatic Number Identification (ANI) and Automatic Location 
Information (ALI) to the appropriate Public Safety Answering Point 
(PSAP).
    21. Discussion. The Commission forbears from applying the emergency 
call routing provision of TOCSIA to CMRS aggregators and OSPs because 
the current E911 regulatory regime, which applies to the vast majority 
of CMRS OSPs, is clearer and more comprehensive than the TOCSIA 
requirements to protect consumers. The E911 rules make more 
comprehensive emergency service requirements applicable to ``covered 
CMRS'' carriers and the Commission sees no reason to also apply the 
duplicative and potentially confusing and conflicting emergency call 
routing requirements that are a part of TOCSIA. In applying the 
forbearance standard, the Commission first finds that enforcement of 
the emergency call routing provision is not necessary to ensure just 
and reasonable charges and practices. Due to the potential for 
conflicting requirements and confusion, the Commission believes its 
current E911 rules better define a standard for reasonable practices as 
they relate to call routing. Second, the Commission finds that 
enforcement of the TOCSIA emergency call routing provision is not 
necessary for the protection of consumers, because the more stringent 
E911 requirements will continue to be applicable to ``covered CMRS'' 
carriers. Finally, the Commission finds that forbearance from applying 
TOCSIA's emergency call routing provision is consistent with the public 
interest because the Commission is eliminating redundant obligations.
G. Other Issues
    22. Finally, in the Notice, the Commission sought comment on 
TOCSIA's provision prohibiting OSPs from billing for unanswered 
telephone calls. See PCIA Forbearance Order and Notice, 13 FCC Rcd at 
16907-8, ] 105. The Commission finds, pursuant to 47 U.S.C. 
226(b)(1)(F-G) and 47 U.S.C. 332(c)(8), that the billing for unanswered 
calls provision of TOCSIA does not apply to CMRS carriers, and this 
issue is, therefore, moot in the CMRS context.
    23. Also, the Commission notes that GTE has requested, as in 
earlier proceedings, that its Airfone and Railfone services be treated 
differently than other CMRS providers and that the Commission take 
action that reflects ``the unique character'' of its services. The 
Commission finds no compelling reason to reverse its decision in PCIA 
Forbearance Order where it affirmed the decisions in the GTE 
Declaratory Ruling, 8 FCCR 6171 (Comm. Carr. Bur. 1993) (GTE 
Declaratory Ruling), in which TOCSIA applies to the actions of certain 
GTE affiliates. Consequently, the Commission concludes that GTE's 
Airfone and Railfone services must comply with TOCSIA provisions fully.
    24. Omnipoint argues that TOCSIA should not apply to customer 
notification processes associated with a CMRS calling party pays (CPP) 
service or, in the alternative, the Commission

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should forbear from such regulation of CPP. There is no indication in 
this record or in the Commission's experience that CPP services are 
being provided by any CMRS carriers. Further, on April 9, 2001, the 
Commission terminated the calling party pays proceeding. In its 
Termination Order, 66 FR 22445 (May 4, 2001), the Commission stated 
that regulations were not necessary to govern calling party pays 
services and that lower prices and new pricing plans offered many of 
the same benefits that calling party pays services would. In light of 
this, the Commission finds no reason to resolve Omnipoint's arguments 
in this proceeding.

III. Ordering Clause

    25. Accordingly, pursuant to sections 4(i), 4(j), 10 and 11 of the 
Communications Act of 1934, as amended, 47 U.S.C. sections 154(i), 
154(j), 160 and 161, this Second Report and Order is adopted.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 03-23198 Filed 9-12-03; 8:45 am]
BILLING CODE 6712-01-P