[Federal Register: October 23, 2001 (Volume 66, Number 205)]
[Rules and Regulations]
[Page 53545]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23oc01-17]
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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 qualexint@aol.com. 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]
BILLING CODE 6712-01-P