[Federal Register Volume 70, Number 100 (Wednesday, May 25, 2005)]
[Rules and Regulations]
[Pages 29979-29983]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-10119]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 64

[CC Docket No. 98-170 and CG Docket No. 04-208; FCC 05-55]


Truth-in-Billing and Billing Format; National Association of 
State Utility Consumer Advocates' Petition for Declaratory Ruling 
Regarding Truth-in-Billing

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document, the Commission concludes that Commercial 
Mobile Radio Service (CMRS) carriers should no longer be exempt from 
the Commission's rule requiring that billing descriptions be brief, 
clear, non-misleading and in plain language. In addition, the 
Commission puts CMRS carriers on notice that it intends to review 
complaints regarding unclear or misleading billing descriptions, and

[[Page 29980]]

may take enforcement action under this rule, as appropriate, based on 
such complaints or other evidence of non-compliance.

DATES: Effective August 23, 2005 except Sec.  64.2400 (b) which 
contains information collection requirements that have not been 
approved by the Office of Management and Budget (OMB). Written comments 
by the public on the modified information collections are due June 24, 
2005. The Commission will publish a document in the Federal Register 
announcing the effective date for that rule.

FOR FURTHER INFORMATION CONTACT: Michael Jacobs, Consumer & 
Governmental Affairs Bureau at (202) 418-2512 (voice), or e-mail 
[email protected]. For additional information concerning the PRA 
information collection requirements contained in this document, contact 
Leslie Smith at (202) 418-0217, or via the Internet at 
[email protected].

SUPPLEMENTARY INFORMATION: On June 25, 1999, the Commission included in 
its Further Notice of Proposed Rulemaking, Truth-in-Billing and Billing 
Format, published at 64 FR 34499, June 25, 1999, the 60 day Federal 
Register PRA notice that sought comment on whether the remaining truth-
in-billing rules that the Commission adopted in the wireline context 
should apply to CMRS carriers, in order to protect consumers. On March 
18, 2005, the Commission released a Second Report and Order, and 
Declaratory Ruling (Second Report and Order), Truth-in-Billing and 
Billing Format; National Association of State Utility Consumer 
Advocates' Petition for Declaratory Ruling Regarding Truth-in-Billing, 
in which the Commission determined that CMRS carriers should no longer 
be exempt from 47 CFR 64.2401(b), which requires that billing 
descriptions be brief, clear, non-misleading and in plain language. To 
the extent that any CMRS carrier is not currently in compliance with 
this requirement, certain modifications to the carrier's billing 
practice may be required. This Second Report and Order contains 
modified information collection requirements subject to the PRA of 
1995, Public Law 104-13. These will be submitted to the Office of 
Management and Budget (OMB) for review under Sec.  3507(d) of the PRA. 
OMB, the general public, and other Federal agencies are invited to 
comment on the new information collection requirement contained in this 
proceeding. This Second Report and Order addresses issues arising from 
Truth-in-Billing and Billing Format, First Report and Order and Further 
Notice of Proposed Rulemaking, CC Docket No. 98-170 and CG Docket No. 
04-208, FCC 99-72; published at 64 FR 34488 and 64 FR 34499, June 25, 
1999. Copies of this document and any subsequently filed documents in 
this matter will be available for public inspection and copying during 
regular business hours at the FCC Reference Information Center, Portals 
II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. The 
complete text of this decision may be purchased from the Commission's 
duplicating contractor, Best Copy and Printing, Inc. (BCPI), Portals 
II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554. Customers 
may contact BCPI, Inc. at their Web site: www.bcpiweb.com or call 1-
800-378-3160. To request materials in accessible formats for people 
with disabilities (Braille, large print, electronic files, audio 
format), send an e-mail to [email protected] or call the Consumer & 
Governmental Affairs Bureau at (202) 418-0530 (voice) or (202) 418-0432 
(TTY). This Second Report and Order can also be downloaded in Word and 
Portable Document Format (PDF) at: http://www.fcc.gov/cgb/pol.

Paperwork Reduction Act of 1995 Analysis

    This Second Report and Order contains modified information 
collection requirements. The Commission, as part of its continuing 
effort to reduce paperwork burdens, invites the general public to 
comment on the information collection requirements contained in the 
Second Report and Order as required by the Paperwork Reduction Act 
(PRA) of 1995, Public Law 104-13. Public and agency comments are due 
June 24, 2005. In addition, the Commission notes that pursuant to the 
Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 
U.S.C. 3506(c)(4), we previously sought specific comment on how the 
Commission might ``further reduce the information collection burden for 
small business concerns with fewer than 25 employees.'' In the present 
document, we have assessed the effects of adopting these rules, and 
find that there may be an administrative burden on businesses with 
fewer than 25 employees. However, to the extent that many businesses 
with fewer than 25 employees also are consumers of wireless 
telecommunications services, we believe they also will benefit from 
applying these requirements to wireless carriers in that they too will 
receive the information they need to understand their bills and to make 
informed decisions in a competitive marketplace. In addition, the 
Commission notes that pursuant to the Regulatory Flexibility Act of 
1980, as amended, and the Paperwork Reduction Act of 1995, Public Law 
104-13, the Commission previously sought specific comment on how 
applying these requirements to CMRS carriers may have an impact on 
information collection requirements applicable to small businesses. 
Indeed, the Commission received comment on its previous Regulatory 
Flexibility Analysis in this docket, and found that the Commission 
appropriately considered and balanced the concerns of carriers that 
detailed rules may increase costs against the Commission's goals of 
protecting consumers from fraud. Finally, many CMRS carriers have 
indicated in this proceeding that they already comply with the new 
requirements, and the principles underlying these requirements always 
have applied to these carriers. Therefore, the Commission believes that 
the burden on CMRS carriers, including those with fewer than 25 
employees, in complying with these requirements will be negligible.

Synopsis

    In this Second Report and Order, the Commission addresses a 
Petition for Declaratory Ruling filed by the National Association of 
State Utility Consumer Advocates (NASUCA) seeking to prohibit 
telecommunications carriers from imposing any separate line item or 
surcharge on a customer's bill that is not mandated or authorized by 
federal, state or local law. In light of the significant consumer 
concerns with the billing practices of wireless and other interstate 
providers raised in this proceeding and outstanding issues from the 
1999 Truth-in-Billing Order and Further Notice, published at 64 FR 
34488 and 64 FR 34499, June 25, 1999, the Commission also takes this 
opportunity to reiterate certain aspects of its existing rules and 
policies affecting billing for telecommunications services. 
Specifically, the Commission: (1) Removes the existing exemption for 
CMRS carriers from 47 CFR 64.2401(b)--requiring that billing 
descriptions be brief, clear, non-misleading and in plain language; (2) 
reiterates that non-misleading line items are permissible under the 
Commission's rules; (3) reiterates that it is misleading to represent 
discretionary line item charges in any manner that suggests such line 
items are taxes or charges required by the government; (4) clarifies 
that the burden rests upon the carrier to demonstrate that any line 
item that purports to recover a specific governmental or regulatory 
program fee

[[Page 29981]]

conforms to the amount authorized by the government to be collected; 
and (5) clarifies that state regulations requiring or prohibiting the 
use of line items for CMRS constitute rate regulation and are preempted 
under section 332(c)(3)(A) of the Communications Act of 1934 (``the 
Act'').

Supplemental Final Regulatory Flexibility Certification (FRFA)

    As required by the Regulatory Flexibility Act of 1980, as amended 
(RFA), (see 5 U.S.C. 603. The RFA, see 5 U.S.C. 601-612, has been 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996, Public Law 104-121, Title II, 110 Statute 857 (1996)) an Initial 
Regulatory Flexibility Analysis (IRFA) was incorporated in the Further 
Notice of Proposed Rulemaking released by the Federal Communications 
Commission (Commission) on May 11, 1999. (See Truth-in-Billing and 
Billing Format, CC Docket No. 98-170, First Report and Order and 
Further Notice of Proposed Rulemaking, 14 FCC Rcd at 7550-52 at 
paragraphs 105-111). The Commission sought written public comments on 
the proposals contained in the FNPRM, including comments on the IRFA. 
Comments filed in this proceeding specifically identified as comments 
addressing the IRFA and comments that address the impact of the 
proposed rules and policies on small entities are discussed below. The 
1999 Truth-in-Billing Order and Further Notice included a Final 
Regulatory Flexibility Analysis (FRFA) that conformed to the RFA. (See 
Truth-in-Billing Order, 14 FCC Rcd at 7537-7550, paragraphs 72-103). 
This present supplemental FRFA addresses only the modification to Sec.  
64.2400(b) of the Commission's rules adopted in this Second Report and 
Order, and conforms to the RFA. (See 5 U.S.C. 604. The requirements of 
the RFA do not extend to the issues set forth in the Declaratory 
Ruling. Thus, the Commission does not address those issues herein).

Need for, and Objectives of, the Order

    In a 1999 Further Notice of Proposed Rulemaking, the Commission 
sought comment on whether the truth-in-billing rules adopted in the 
wireline context should apply to CMRS carriers in order to protect 
consumers. (See Truth-in-Billing Order, 14 FCC Rcd at 7535-36, 
paragraphs 68-70). In the 1999 Truth-in-Billing Order, the Commission 
concluded that the broad principles adopted to promote truth-in-billing 
should apply to all telecommunications carriers, both wireline and 
wireless. (See Truth-in-Billing Order, 14 FCC Rcd at 7501, paragraph 13 
(``[l]ike wireline carriers, wireless carriers also should be fair, 
clear, and truthful in their billing practices.''). The Commission 
noted that these principles represent fundamental statements of fair 
and reasonable practices. In the wireline context, the Commission 
incorporated these principles and guidelines into rules for enforcement 
purposes ``after considering an extensive record of both the nature and 
volume of customer complaints, as well as substantial information about 
wireline billing practices.'' (See Truth-in-Billing Order, 14 FCC Rcd 
at 7501, paragraph 15).
    In the wireless context, however, the Commission found that the 
record at that time did not reflect the same high volume of customer 
complaints nor did the record indicate that CMRS billing practices 
failed to provide consumers with the clear and non-misleading 
information they need to make informed choices. (See Truth-in-Billing 
Order, 14 FCC Rcd at 7502, paragraph 16. The Commission also noted that 
notwithstanding the decision not to apply these guidelines to CMRS 
providers, that such providers remain subject to the reasonableness and 
nondiscrimination requirements of sections 201 and 202 of the Act, 
``and our decision here in no way diminishes such obligations as they 
may relate to billing practices of CMRS carriers.'' See Truth-in-
Billing Order, 14 FCC Rcd at 7502, paragraph 19). The Commission 
therefore exempted CMRS carriers from the truth-in-billing rule that 
requires charges contained on telephone bills to be accompanied by a 
brief, clear, non-misleading, plain language description of the service 
or services rendered. (See 47 CFR 64.2400(b), 64.2401(b)). We believe 
that making the requirements of 47 CFR 64.2401(b) mandatory for CMRS 
will help to ensure that wireless consumers receive the information 
that they require to make informed decisions in a competitive 
marketplace.

Summary of Significant Issues Raised by Public Comments in Response to 
the IRFA

    The Office of Advocacy filed comments specifically addressing the 
proposed rules and policies presented in the 1999 Truth-in Billing 
Order FRFA and IRFA. (See, e.g. Office of Advocacy, U.S. Small Business 
Administration 1999 Reply Comments). In general, the Office of Advocacy 
argued that the Commission's FRFA and IRFA were flawed due to 
vagueness. As the Commission has previously stated, however, the 
Commission believes the Truth-in-Billing Order and regulatory 
flexibility analysis contained therein appropriately balanced the 
concerns of carriers that detailed rules may increase costs against the 
Commission's goal of protecting consumers from fraud. (See Truth-in-
Billing Order on Reconsideration, 15 FCC Rcd at 6031, paragraph 20). 
Moreover, the Commission notes that the scope of this Second Report and 
Order is significantly more limited than the 1999 Truth-in-Billing 
Order and the issues that the Office of Advocacy addressed in its 
comments. The majority of commenters addressing the limited issue 
presented in the Second Report and Order, representing primarily CMRS 
providers, responded that the lack of billing complaints against 
wireless providers along with the competitive nature of the wireless 
industry should indicate that it is not necessary to apply these rules 
to CMRS. (See, e.g., Bell Atlantic Mobile 1999 Comments at 3; CTIA 1999 
Comments at 5; PCIA 1999 Comments 4-5). Several state commissions, 
consumer organizations, and individual commenters, however, argued that 
many consumers were confused by their telephone bills including charges 
included on their CMRS bills.

Description and Estimate of the Number of Small Entities to Which the 
Rules Will Apply

    The RFA directs agencies to provide a description of, and where 
feasible, an estimate of the number of, small entities that may be 
affected by the rules adopted herein. (See 5 U.S.C. 604(a)(3)). The RFA 
generally defines the term ``small entity'' as having the same meaning 
as the terms ``small business,'' ``small organization,'' and ``small 
governmental jurisdiction.'' (See 5 U.S.C. 601(6)). In addition, the 
term ``small business'' has the same meaning as the term ``small 
business concern'' under the Small Business Act. (See 5 U.S.C. 601(3) 
(incorporating by reference the definition of ``small-business 
concern'' in the Small Business Act, 15 U.S.C. 632). Pursuant to 5 
U.S.C. 601(3), the statutory definition of a small business applies 
``unless an agency, after consultation with the Office of Advocacy of 
the Small Business Administration and after opportunity for public 
comments, establishes one or more definitions of such term which are 
appropriate to the activities of the agency and publishes such 
definition(s) in the Federal Register.''). Under the Small Business 
Act, a ``small business concern'' is one that: (1) Is independently 
owned and operated; (2) is not dominant in its field of operation; and 
(3) satisfies any additional criteria established by the

[[Page 29982]]

Small Business Administration (SBA). (See 15 U.S.C. 632).
    Wireless Service Providers. The SBA has developed a small business 
size standard for wireless firms within the two broad economic census 
categories of ``Paging'' (see 13 CFR 121.201, NAICS code 517211) and 
``Cellular and Other Wireless Telecommunications.'' (See 13 CFR 
121.201, NAICS code 517212). Under both SBA categories, a wireless 
business is small if it has 1,500 or fewer employees. For the census 
category of Paging, Census Bureau data for 1997 show that there were 
1,320 firms in this category, total, that operated for the entire year. 
(See U.S. Census Bureau, 1997 Economic Census, Subject Series: 
``Information,'' Table 5, Employment Size of Firms Subject to Federal 
Income Tax: 1997, NAICS code 513321 (issued October 2000). Of this 
total, 1,303 firms had employment of 999 or fewer employees, and an 
additional 17 firms had employment of 1,000 employees or more. (See 
U.S. Census Bureau, 1997 Economic Census, Subject Series: 
``Information,'' Table 5, Employment Size of Firms Subject to Federal 
Income Tax: 1997, NAICS code 513321 (issued October 2000). The census 
data do not provide a more precise estimate of the number of firms that 
have employment of 1,500 or fewer employees; the largest category 
provided is ``Firms with 1000 employees or more.''). Thus, under this 
category and associated small business size standard, the great 
majority of firms can be considered small. For the census category 
Cellular and Other Wireless Telecommunications, Census Bureau data for 
1997 show that there were 977 firms in this category, total, that 
operated for the entire year. (See U.S. Census Bureau, 1997 Economic 
Census, Subject Series: ``Information,'' Table 5, Employment Size of 
Firms Subject to Federal Income Tax: 1997, NAICS code 513322 (issued 
October 2000). Of this total, 965 firms had employment of 999 or fewer 
employees, and an additional 12 firms had employment of 1,000 employees 
or more. (See U.S. Census Bureau, 1997 Economic Census, Subject Series: 
``Information,'' Table 5, Employment Size of Firms Subject to Federal 
Income Tax: 1997, NAICS code 513322 (issued October 2000). The census 
data do not provide a more precise estimate of the number of firms that 
have employment of 1,500 or fewer employees; the largest category 
provided is ``Firms with 1000 employees or more.''). Thus, under this 
second category and size standard, the great majority of firms can, 
again, be considered small.

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements for Small Entities

    In this present document, the Commission concludes that CMRS 
carriers should no longer be exempt from 47 CFR 64.2401(b)--requiring 
that billing descriptions be brief, clear, non-misleading and in plain 
language. To the extent that any CMRS carrier is not currently in 
compliance with this requirement, certain modifications to the 
carriers' billing practices would be required. Such modifications would 
include reviewing existing bills and making changes as necessary to 
ensure that any billing descriptions are clear, non-misleading, and in 
plain language as required by Sec.  64.2401(b) of the Commission's 
rules.

Steps Taken To Minimize the Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered

    The RFA requires an agency to describe any significant alternatives 
that it has considered in reaching its proposed approach, which may 
include the following four alternatives (among others): (1) The 
establishment of differing compliance or reporting requirements or 
timetables that take into account the resources available to small 
entities; (2) the clarification, consolidation, or simplification of 
compliance or reporting requirements under the rule for small entities; 
(3) the use of performance, rather than design standards; and (4) an 
exemption from coverage of the rule, or any part thereof, for small 
entities.
    The Commission has considered several alternatives to its decision 
to remove the exemption for CMRS carriers from 47 CFR 64.2400(b), 
including the retaining of that exemption or forbearing from that 
requirement under section 10 of the Act. Section 64.2401(b) requires 
that billing descriptions be brief, clear, non-misleading and in plain 
language. Although the Commission decided in 1999 to exempt CMRS 
carriers from the requirements of Sec.  64.2401(b), the Commission 
nevertheless stated that the underlying principle (i.e. bills must be 
clear and non-misleading) should apply to wireless carriers and sought 
further comment on whether such requirement should be made mandatory to 
CMRS in the future. In addition, the Commission concluded that sections 
201(b) and 202 of the Act would continue to apply to wireless billing 
practices.
    The record in this proceeding, including comments of several states 
and individual consumers and the Commission's own complaint data, leads 
the Commission to conclude that many wireless consumers are confused by 
the billing practices of their CMRS provider. As a result, the 
Commission has decided to require CMRS providers to comply with the 
Commission's requirement that billing practices be clear, brief, and 
non-misleading. Many CMRS providers have indicated in this proceeding 
that they already comply with this requirement. As noted above, the 
identical underlying truth-in-billing principle and sections 201 and 
202 of the Act have always applied to CMRS providers. Thus, the 
Commission believes that the burden on CMRS carriers in complying with 
this requirement will be negligible.

Report to Congress

    The Commission will send a copy of the Second Report and Order, 
including this Final Regulatory Flexibility Analysis (FRFA), in a 
report to be sent to Congress pursuant to the Congressional Review Act. 
In addition, the Commission will send a copy of the Second Report and 
Order, including this FRFA, to the Chief Counsel for Advocacy of the 
SBA. A copy of the Second Report and Order and FRFA (or summaries 
thereof) will also be published in the Federal Register.

Ordering Clauses

    Pursuant to the authority contained in sections 1-4, 201, 202, 206-
208, 258, 303(r), and 332 of the Communications Act of 1934, as 
amended; 47 U.S.C. 151-154, 201, 202, 206-208, 258, 303(r), and 332; 
section 601(c) of the Telecommunications Act of 1996; and Sec. Sec.  
1.421, 64.2400 and 64.2401 of the Commission's Rules, 47 CFR 1.421, 
64.2400, and 64.2401, the second report and order, declaratory ruling 
are adopted, and Part 64 of the Commission's rules, 47 CFR 64.2400, is 
amended.
    The rules and requirements contained in this Second Report and 
Order shall become effective within 90 days of their publication in the 
Federal Register.
    The Petition for Declaratory Ruling filed by the National 
Association of State Utility Consumer Advocates on March 30, 2004, is 
denied to the extent provided herein.
    The Commission's Consumer & Governmental Affairs Bureau, Reference 
Information Center, shall send a copy of the Second Report and Order 
and Declaratory Ruling, including the Final Regulatory Flexibility 
Analysis, to the Chief Counsel for Advocacy of the Small Business 
Administration.

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List of Subjects in 47 CFR Part 64

    Telecommunications, Communications common carriers, Reporting and 
recordkeeping requirements.

Federal Communications Commission

Marlene H. Dortch,
Secretary.

Rule Change

0
For the reasons discussed in the preamble, the Federal Communications 
Commission amends 47 CFR Part 64 as follows:

PART 64--MISCELLANEOUS RULES RELATING TO COMMON CARRIERS

0
1. The authority citation continues to read as follows:

    Authority: 47 U.S.C. 154, 254(k); secs. 403(b)(2)(B), (c), 
Public Law 104-104, 110 Stat. 56. Interpret or apply 47 U.S.C. 201, 
218, 225, 226, 228, and 254(k) unless otherwise noted.

0
2. Section 64.2400 is amended by revising paragraph (b) to read as 
follows:


Sec.  64.2400  Purpose and scope.

* * * * *
    (b) These rules shall apply to all telecommunications common 
carriers, except that Sec.  64.2401(a)(2) and 64.2401(c) shall not 
apply to providers of Commercial Mobile Radio Service as defined in 
Sec.  20.9 of this chapter, or to other providers of mobile service as 
defined in Sec.  20.7 of this chapter, unless the Commission determines 
otherwise in a further rulemaking.
* * * * *
[FR Doc. 05-10119 Filed 5-24-05; 8:45 am]
BILLING CODE 6712-01-U