FOR FCC RECORD ONLY
BEFORE THE
FEDERAL COMMUNICATIONS COMMISSION
FCC 94-59
WASHINGTON, D.C.
IN THE MATTER OF )
)
Rules and Policies Regarding ) CC Docket No. 91-281
Calling Number Identification )
Service - Caller ID )
Due to technical difficulties, footnotes, tables & charts may be
dropped from this document. Entire document is available in Word
Perfect also.
REPORT AND ORDER AND FURTHER NOTICE OF PROPOSED
RULEMAKING
Comments due: May 18, 1994
Replies due: June 21, 1994
Adopted: March 8, 1994 Released: March 29, 1994
By the Commission: Commissioner Barrett issuing a statement.
TABLE OF CONTENTS
Title Paragraph
I. INTRODUCTION 1
II. DISCUSSION
A. Calling Party Number Services Should be Available
to Interstate Subscribers Nationally
1. Risks and Benefits 4
2. Deployment by Carriers 10
B. Transmission of the Calling Party Number
throughout the Network 12
C. Costs of Interstate Transmission of Calling
Party Number 18
D. Privacy Issues 24
1. Constitutional Issues 25
2. Public Policy and Privacy Mechanisms 31
3. Private Networks, Emergency Services and
Law Enforcement 35
E. Privacy Protection Mechanisms, Further Notice of
Proposed Rulemaking 38
1. Per Line Blocking for Specific Groups 39
2. Per Line Blocking Available to All Subscribers 41
3. Operator Assisted Per Call Blocking 44
4. Automatic Per Call Blocking 45
5. Applicability to Additional Services 50
F. ANI and Caller Privacy 51
G. Subscriber Education, Further Notice of Proposed
Rulemaking 59
H. CPNI and Subscriber Privacy 61
I. Wiretap Statutes and Caller ID 62
J. Relationship between Interstate and Intrastate
Caller ID 64
III. CONCLUSION 71
IV. PROCEDURAL MATTERS 73
V. ORDERING CLAUSES 77
APPENDICES
I. INTRODUCTION.
1. On October 23, 1991, the Commission issued a Notice of
Proposed Rulemaking in this docket. More than 100 parties filed
comments, including local exchange carriers (LECs),
interexchange carriers (IXCs), state governments, public interest
organizations, trade associations, and private citizens.
2. In the NPRM, the Commission sought to develop the most
effective policies to govern interstate calling party number
based services such as caller ID. The NPRM sought comment on
carriers' progress in deploying interstate caller ID service, and
the technical and public policy implications of dual federal and
state regulatory policies. We tentatively concluded that a
federal model for the interstate delivery of the calling party's
number is in the public interest, and necessary for the
introduction of many valuable services, including interstate
caller ID.
3. In this Order, we find that a federal model for
interstate delivery of calling party number is in the public
interest, that calling party privacy must be protected, and that
certain state regulation of interstate calling party number
(CPN) based services, including interstate caller ID, must be
preempted. We amend Part 64 of the rules to require that common
carriers using Common Channel Signalling System 7 (SS7) and
subscribing to or offering any service based on SS7 functionality
must transmit the calling party number parameter and its
associated privacy indicator on an interstate call to connecting
carriers. We also require that carriers offering CPN delivery
services provide, at no charge to the caller, an automatic per
call blocking mechanism for interstate callers. The rules
require that terminating carriers providing calling party based
services, including caller ID, honor the privacy indicator. We
find that the costs of interstate transmission of CPN are de
minimis, and that the CPN should be transmitted among carriers
without additional charge. We also require that carriers
participating in the offering of any service that delivers CPN on
interstate calls inform telephone subscribers that the
subscriber's number may be revealed to called parties and
describe what steps subscribers can take to avoid revealing their
numbers. Further, we adopt rules to restrict the reuse or sale
of information generated by automatic number identification (ANI)
or charge number services, absent affirmative subscriber
consent. Finally, we note that additional comments are sought
through a separate public notice in the Computer III Remand
Proceeding on whether residential and small business customers'
privacy concerns warrant revision of the Commission's rules
governing reuse and sale of customer proprietary network
information (CPNI). In the Further Notice of Proposed
Rulemaking, we seek comment on whether more detailed customer
education rules should be adopted. We also seek comment on
extending the policies adopted herein to other services that
might identify the calling party.
II. DISCUSSION.
A. Calling Party Number Services Should be Available to
Interstate Subscribers Nationally.
4. Risks and Benefits. In the NPRM, the Commission stated
its tentative view that the availability of interstate caller ID
would enhance the value of the service to intrastate subscribers
and augment the available choices of existing interstate services
for all subscribers. The Commission noted that the ability to
choose caller ID and other services that rely on access to the
calling party's number should be available to interstate
subscribers nationally. The majority of commenters supported
this view and described in detail the potential benefits to the
public of services based on the calling party's number.
5. In its comments, AT&T identified potential uses of
interstate calling party number for such services as pay-per-view
television, order entry/verification, voice message storage,
secure computer access, customized customer service, business
fraud reduction, call routing, emergency dispatch, health care
services, telephone banking, home shopping, dealer locator, and
selective call message forwarding. McCaw states that caller
information will significantly improve cellular and other service
offerings because cellular subscribers pay for incoming calls.
Moreover, McCaw notes that ubiquitous caller ID will facilitate
cellular enhancements including conventional caller ID, more
responsive customer service, new cellular CPE voice synthesizers,
and service for roaming subscribers. SNET states that its
studies show that caller ID aids persons with hearing impairments
in answering calls; law enforcement in determining crank,
threatening, false alarm calls and emergency dispatches; and
hospital crisis centers in identifying and deterring nuisance
calls.
6. In contrast, Colorado DVC asserts that caller ID is not
in the public interest because of the threat it poses to the
privacy and safety interests of the calling party. Colorado
Consumer contends that call trace is the preferable service to
stop obscene and harassing calls. Bell Atlantic replies that
call trace will not work if another call is received before
tracing is attempted, and that customers who have used both
caller ID and call trace prefer the former. Consumer Action,
Washington UTC, and NYS Law agree with Colorado DVC that caller
ID has little merit and may threaten public health and safety as
well as jeopardize important privacy interests.
7. While we agree that passage of the calling party number
does create risks of lost privacy, we must weigh these risks
against the potential benefits brought by interstate services
that passage of the calling party's number makes possible. Other
services available to protect subscriber privacy, such as Call
Trace, are limited in scope and do not permit either the public
or service providers to take advantage of beneficial services.
The commenters briefly discuss some of these benefits. For
example, computer systems could limit remote access only to
previously approved calling numbers, with calling party number
based services like caller ID making verification for access
nearly instantaneous. Service providers who respond to telephone
orders, such as stock brokers or parts and equipment dealers,
could use the calling party's number to direct the call
immediately to the appropriate department for service. Banks
could program data sources to have customer profile information
available as a call is answered. With interstate delivery of
calling party number, calls to national service centers could be
routed automatically to local service centers closest to the
calling party. Consumers making orders could have their name,
address and billing information verified instantaneously.
Indeed, a significant number and kind of customized national
services can develop as a result of instant recognition of the
calling party.
8. Many of these potential services would permit
transactions to occur more efficiently. In an economy that
averages more than one billion interstate calling minutes a day,
even small efficiencies on individual calls could become
significant in the aggregate. Providing the public with rapid
and efficient interstate telecommunications services is at the
heart of our responsibilities, particularly if they can be
provided at very little additional cost. As illustrated above,
passage of the calling party number can promote technological
innovation and new applications that will foster economic
efficiency and provide new employment, manufacturing and
investment opportunities.
9. None of these services and benefits are possible,
however, unless the calling party number is passed freely among
carrier networks. It is significant that the categories of those
benefiting from these new opportunities are very broad. For
example, consumers and individuals benefit by having additional
options for meeting their customer service needs and by having
transactions completed more quickly and more accurately. As
workers and entrepreneurs, they benefit by having new employment
opportunities. Businesses benefit because they can complete
transactions more quickly, which can lower incremental costs of
transactions, potentially leading to savings for consumers.
Telephone companies benefit by revenues from new services, and by
greater use of their networks. Greater use of CPN based services
by consumers and service providers will create incentives for
carriers who do not have SS7 networks to install them. This will
enhance the nation's telecommunications infrastructure, to the
benefit of all who use it. Most of the comments directed against
our proposal in the NPRM are based on legitimate concerns that
individuals have access to a means of protecting their privacy
where doing so is important. We believe technology can address
these concerns regarding protections for individual privacy.
Accordingly, we find that the potential benefits of services
based on calling party number serve the public interest and
affirm the NPRM's tentative conclusion that CPN-based interstate
services such as caller ID should be available to interstate
subscribers nationwide.
10. Deployment by Carriers. In the NPRM, the Commission
sought detailed comments on carriers' progress toward
establishing joint offerings of CPN-based services, and any
impediments that have been identified. The record does not
reflect extensive response to that inquiry. It appears that
although the deployment of the necessary technology for
interstate calling party number based services is well underway,
other factors have impeded progress. In particular, varying
state regulatory responses to privacy issues appear to be
impeding the development of interstate services. Moreover,
commenters express concern that this lack of national uniformity
in regulating interstate SS7 calling party number based services
may eliminate a source of the revenues expected from such
services. In their comments, Rochester, Ameritech, BellSouth,
GTE, McCaw, and US West support a national policy for caller ID
because federal standards are essential to achieve the goals of
nationwide availability of calling party number based services.
McCaw states that it supports a federal policy for caller ID and
ANI that accommodates both state concerns and industry
diversification and experimentation. In contrast, Allnet
contends that there is no compelling federal interest to promote
nationwide availability of caller ID and that if there is a
demand for interstate caller ID, market forces will assure its
availability.
11. The record reflects that national policies on
interstate CPN-based services such as caller ID are needed to
reduce risks of stranded investment and to remove impediments to
development of services consumers are likely to find beneficial.
In addition to providing additional choices for consumers, such
services offer significant efficiency dividends for all users of
interstate telephone services. These efficiency gains promise to
lower incremental costs of interstate calling party number based
services, including caller ID, and increase national
productivity. Carriers may be wary to invest in technology or
delivery systems that may later become incompatible with the
varying state requirements or incapable of satisfying federal
policy. Resolution of privacy, blocking, and preemption issues
is necessary to enable the benefits of these services to occur.
By removing impediments created by administrative uncertainty, we
seek only to resolve those issues necessary for the efficient
introduction of the services. The effective date of the rules
adopted here will be April 12, 1995, which should allow
sufficient time for completion of any coordination or other
arrangements, discussed infra, necessary for full compliance with
the rules.
B. Transmission of the Calling Party Number throughout
the
Network.
12. In the NPRM, we tentatively concluded that the
transmission of the CPN by the LEC to the IXC is an essential
element of interstate CPN-based services such as caller ID. The
Commission proposed that LECs should be required to provide CPN
to IXCs as soon as technologically feasible and, similarly, that
IXCs should be required to transmit CPN to terminating LECs.
13. AT&T states that requiring IXCs to transmit interstate
CPN to LECs is unnecessary because the competitive market already
gives IXCs incentive to offer innovative interstate caller ID
services to end users. Moreover, AT&T contends that such a
requirement would deprive IXCs of the ability to earn revenues
from their substantial investments in SS7 technology. Allnet
argues that the requirement would compel all IXCs to participate
in SS7 interconnection, thus compromising network integrity.
14. Ameritech, Nynex, Pacific, Centel, and NTIA concur
that the Commission should facilitate the provision of interstate
caller ID by requiring passage of the calling party's number
between carrier networks without modification. MCI agrees that
the Commission should require LECs to provide the CPN to IXCs,
but it opposes any requirement that IXCs be required to transmit
the CPN to the terminating LEC because it states the LEC would
then be the lone provider of caller ID. In opposition, BellSouth
contends that the transmission of the CPN is essential, and as
part of SS7 does not require additional network processing by the
IXC nor impose significant cost. Further, BellSouth argues that
free delivery of the CPN to terminating LECs would not establish
LECs as monopoly providers; rather, IXCs could develop competing
CPN-based interstate services that bypass LECs as terminating
carriers. NTIA and USTA assert that an IXC's offering of the
calling party number should be available through all means of
interconnection to end users, including LECs, alternative local
service providers, or the IXC itself.
15. Nynex proposes that mandatory delivery of the calling
party number parameter among all networks is in the public
interest. Further, Nynex supports McCaw's proposal that
technical standards for transmission of caller ID and ANI between
cellular and landline carriers be developed. However, it notes
that cellular carriers do not receive ANI from Nynex because
transmission of ANI to cellular carriers is not technologically
feasible.
16. We affirm our tentative finding that interstate CPN-
based services such as caller ID will not be possible unless the
calling party number is transmitted from the originating carrier
to the terminating carrier. In our 800 number portability
proceeding, major LECs filed access tariffs providing for 800
number portability using SS7 technology. Many Bell Operating
Companies (BOCs) have filed access tariffs with CPN as a
nonchargeable option. Calling party number is an element of
access service in virtually all SS7 access tariffs filed at the
Commission and these tariffs follow industry standards for SS7
interconnection. The American National Standard for
Telecommunications - Signalling System Number 7 (SS7) -
Integrated Services Digital Network, ANSI T1.113, 1988, includes
calling party number as an optional parameter of an SS7 network.
Similarly, the subsequent BellCore guidelines for SS7
interconnection with a BOC include CPN as an optional
parameter.
17. We conclude that carriers should pass calling party
number information where capable of doing so. In view of the
foregoing, we amend Part 64 of the rules to require that not
later than April 12, 1995, common carriers using Signalling
System 7 and subscribing to or offering any service based on SS7
functionality must transmit the calling party number parameter
and its associated privacy indicator to connecting carriers on an
interstate call. Further, we amend the rules to prohibit
common carriers from modifying or overriding the privacy
indicator on an interstate call. We emphasize that carriers are
..........................................................................
Jonah Seiger, Project Coordinator <jseiger@eff.org
Electronic Frontier Foundation (202) 347-5400 (v)
1001 G St, NW Suite 950 East (202) 393-5509 (f)
Washington, DC 20001
not required to invest in SS7 technology in order to facilitate
delivery of the calling party number. Carriers are only required
to transmit the CPN and privacy indicator where technically
feasible. Because transmission of the calling party number
requires SS7 technology, technical feasibility exists wherever
SS7 technology is used. We now turn to the issue of the costs
associated with the transmission of the CPN.
C. Costs of Interstate Transmission of Calling Party
Number.
18. Most IXC commenters contend that, if required to
transmit the calling party number, IXCs should be compensated for
such transmission. AT&T avers that IXCs incur costs in acquiring
and delivering interstate CPN and that its decision to invest in
SS7 rested in part on the anticipation of revenue from new
services such as caller ID. MCI concurs with AT&T and further
contends that IXCs already pay for calling party numbers as part
of feature group D switched access and are developing services
which will provide the called party with the calling party's
telephone number. Allnet proposes that IXCs who do not
voluntarily engage in forwarding caller ID should not bear any of
the costs of deployment. Metromedia argues that carriers
terminating calls should be responsible for billing those called
parties subscribing to interstate caller ID where appropriate;
terminating carriers should compensate IXCs passing the
information.
19. Nynex believes that if the CPN is passed freely from
carrier to carrier, then each carrier may use it to provide
services to end users, consistent with cost-based rather than
market-based pricing for Open Network Architecture service
offerings. Bell Atlantic agrees that if IXCs are allowed to
charge for calling party number the cost to consumers will be
unnecessarily increased. United states that a single price
established in the local jurisdiction for all caller ID
regardless of jurisdiction is appropriate. United cites to the
precedent for local service pricing of custom calling features
like call forwarding of interstate toll calls.
20. SWB concurs with other commenters that CPN should be
passed from carrier to carrier at no charge because it is an
intrinsic part of SS7 call setup and no cost is
associated with filling the calling party number parameter in the
SS7 message. SWB disagrees with IXCs such as AT&T, MCI, and
Allnet which assert that charging for passage of the CPN would
permit them to share in revenues from the LEC's services that
depend on passage of the calling party number. In essence,
states SWB, the IXCs want to charge for the passage but receive
it free. SWB proposes that the Commission require passage at no
charge, thus eliminating extra charges which would be passed on
to consumers.
21. McCaw agrees with SWB that CPN should be passed free of
charge. McCaw asserts that to encourage maximum possible
participation of all carriers as co-equal carriers, the
Commission should prohibit compensation among carriers that pass
ANI or caller ID information because the costs of ANI and caller
ID are recovered in the overall SS7 costs. Centel argues that
IXCs should be prohibited from charging either the originating or
terminating LEC for transport. Centel asserts that revenue
sharing issues should be resolved between carriers, and notes
that it would cost IXCs more to remove the CPN from their systems
than to allow passage to terminating LECs.
22. CFA, Colorado DVC, Maryland PC, Michigan PSC and others
argue that costs associated with caller ID should be borne by
subscribers to the service. The Illinois CC notes that it has
ordered that the costs of providing per call blocking be borne by
those who subscribe to caller ID. IIA proposes that the per call
blocking costs should be imposed upon the calling party on the
theory that suppression of the calling number is a special
service the cost for which should be borne by the party who
chooses to invoke it. Consumer Action contends that LECs are
improperly allocating the costs of the SS7 switches and supports
this contention with data which it believes show that the body of
ratepayers is subsidizing SS7-based service, which only benefits
5-6% of telephone customers.
23. We find that the unimpeded flow of the calling party
number throughout the network ensures the greatest diversity of
offerings to subscribers and eliminates costs that can delay or
impede development of CPN based services. To the extent these
services improve productivity, lower incremental costs and create
new employment, investment and other opportunities, they benefit
a wide range of consumers and producers. As noted above,
industry standards already include calling party number as an
optional parameter of an SS7 network, and the calling party
number is an element of access service in virtually all SS7
access tariffs filed at the Commission. In most cases, SS7
signalling replaces older signalling methods used in an IXC
network and provides benefits to the carrier such as more
efficient call routing and reduced exposure to fraud. We thus
conclude from the record before us that the costs of transmitting
CPN are de minimis, and that accordingly, the calling party
number parameter and associated privacy indicator should be
transmitted among carriers at no additional charge.
D. Interstate Caller ID Privacy Issues.
24. In the NPRM, we balanced the privacy interest of the
called party against the privacy interest of the caller and
proposed that interstate caller ID should include some measures
to protect calling parties' privacy. We sought comment on
whether these privacy interests are matters of public policy or
are constitutional in nature. We noted that any regulatory
response to protect the privacy interest of the calling party
should take into account the public benefits of caller ID and
should not undermine the value of the service overall. Most
commenters agree that societal expectations of privacy require
that interstate caller ID include some type of privacy protection
mechanism.
25. Constitutional Issues. AT&T contends that the
provision of interstate caller ID by private telephone companies
does not implicate the U.S. Constitution, which, AT&T argues,
does not regulate private activity relevant to this proceeding.
GTE concurs with AT&T and adds that in recent cases the courts
found no state action was involved when a LEC refused to provide
communications service or billing and collection service to dial-
a-porn providers. Further, GTE argues that in Smith v.
Maryland, 442 U.S. 735 (1979), (Smith), the U. S. Supreme Court
held that there is no federal constitutional protection from
disclosure of digits dialed on the network.
26. In opposition, Georgia CUC cites to testimony before
the Georgia PUC that concludes that information is
constitutionally protected when a legitimate expectation exists
that the information will remain confidential. California PUC
contends that there exists a non-frivolous claim that the First
Amendment right to free speech includes a right of the calling
party not to be compelled to disclose his or her telephone
number. Ohio OCC concurs that there is an identifiable federal
constitutional privacy interest that includes telephone digits
and supports this argument citing Griswold v. Connecticut, 381
U.S. 479 (1965) (the right to make decisions about procreation)
(Griswold), and Whalen v. Roe, 429 U.S. 589 (1977) (individual
interest in avoiding disclosure of personal matters) (Whalen).
Pennsylvania PUC states that the Commonwealth Court of
Pennsylvania held that caller ID is per se unconstitutional under
the Pennsylvania state constitution because of the theoretical
risk that a caller wanting to remain anonymous would accidentally
forget to use the available blocking feature.
27. The record and case law demonstrate that there is no
federal constitutional bar to the offering by carriers of CPN-
based services such as caller ID. In Smith, the Supreme Court
held that there is no privacy right under the Fourth Amendment
protecting telephone numbers from disclosure because the
application of the Fourth Amendment depends on whether first, the
person invoking protection can claim that a "legitimate
expectation of privacy" has been invaded by the government. In
Smith, pen register records kept upon police request by a
telephone carrier on calls made by a robbery suspect became
evidence used to convict him on robbery charges. At issue was
whether seizure by police of the record of phone numbers that the
suspect called constituted a "search" for Fourth Amendment
purposes and thus required a warrant. The court's decision
rested upon analysis of whether the individual exhibits an
expectation that something will remain private, and second,
whether the individual's subjective expectation of privacy is one
which society is prepared to recognize as objectively reasonable.
Smith at 740. The court held that the expectation of privacy for
phone numbers is not one that society is prepared to recognize as
reasonable, because when one voluntarily exposes his phone number
to the telephone company's equipment, one assumes the risk that
the company may reveal the number to others. Id. at 743-45. The
Court also drew a distinction between the content of a phone
conversation and the number dialed and found that protecting the
content is more important than the number dialed because phone
numbers are not communication in and of themselves, but merely
establish that communication has been attempted. Id. at 741.
28. The Pennsylvania state court ruling cited by the
Pennsylvania PUC does not suggest otherwise. The Commonwealth
Court struck down Pennsylvania PUC's order which had approved
caller ID in part because the court found that, even with a
blocking mechanism, caller ID violates Pennsylvania
constitutional privacy rights. The constitutional privacy
right asserted in Barasch rests on the court's interpretation of
the Pennsylvania Constitution. Id. at 87, 89. However, the U.S.
Constitution is not cited in Barasch as imposing any privacy
right in a phone number; indeed, such an interpretation would be
inconsistent with Smith. Moreover, on appeal, the Supreme Court
of Pennsylvania held that caller ID violates the "trap and trace"
provisions of the state wiretap law and did not address the
constitutional privacy issue.
29. GTE cites two cases (supra, note 16) in support of the
principle that common carriers are private entities and thus no
state interference with individual privacy rights is involved.
DISC involves a challenge by dial-a-porn companies to the Helms
Amendment, 47 U.S.C. 223 (b) & (c), which allows phone
companies to require dial-a-porn services to notify them that
they will be providing indecent messages and/or to require dial-
a-porn services to utilize independent billing. The Court of
Appeals held that no prior restraint of free speech was created
by the statute because no governmental action was involved. The
statute merely permits phone companies to choose whether to
provide billing services to dial-a-porn companies. Similarly,
Information Providers involves a challenge to Section 223 of the
Communications Act of 1934, as amended, 47 C.F.R. 64.201
(1991). The court held that carriers are private companies, not
state actors, and are, therefore, not required to continue,
restrict, or terminate services of particular users and that a
carrier is free under the constitution to terminate service to
dial-a-porn operators altogether. These cases generally support
the proposition that when a carrier can choose whether to offer
certain services, no state action is involved.
30. On the basis of this body of law and the record, we
find that the offering of caller ID does not violate privacy
rights protected by the U.S. Constitution. Constitutional
protections of privacy relate to government action and no
government action is involved here. Moreover, we find that
federal courts have not, to date, recognized an individual
privacy right in telephone numbers.
31. Public Policy and Privacy Mechanisms. The majority of
commenters agree that the privacy interests associated with
caller ID are a matter of public policy or societal expectation.
California Consumer Affairs proposes that federal interstate
caller ID policies must recognize that the governmental interest
in protecting public health, safety and welfare dictates that
some blocking option be available. NY Law Project underscores
that with a relatively inexpensive personal computer and a CD ROM
reader, a business caller ID subscriber could access data bases
and display a data profile of a caller even before the telephone
is answered, or while the call is in progress. SWB recognizes
the need to protect the confidentiality of non-published numbers,
undercover police officers, domestic violence shelters, and the
integrity of hotlines. Massachusetts contends that the effective
functioning of law enforcement in Massachusetts would be
compromised if caller ID were offered without a privacy
protection mechanism. GTE, however, asserts that tariff language
requires that the caller identify himself to the called party.
Nynex contends that caller ID redresses a longstanding imbalance
which favored the calling party because the called party had no
information on which to decide whether or not to answer the
telephone.
32. BellSouth proposes that with all number delivery,
callers can protect their identity by calling from telephones not
recognizable by the called party. BellSouth states it has
developed specialized service offerings for the privacy concerns
of law enforcement and domestic violence shelters. Bell Atlantic
also advocates unrestricted delivery on the premise that per call
blocking is used infrequently and provides malicious callers the
opportunity to continue to make harassing calls. MCI states that
delivery of the calling party number should be unrestricted
because unlimited availability of customer initiated blocking
will undermine the service and diminish its value to the public.
However, MCI concurs with BellSouth that limited blocking should
be available to protect public safety groups. USCG proposes that
any blocking mechanisms not apply to calls made to United States
Coast Guard emergency telephone numbers. USTA is in favor of
unrestricted delivery of caller ID across all carrier networks,
whether interstate or intrastate. However, USTA proposes that
per call blocking for specific applications may be appropriate.
33. IIA argues that unrestricted delivery of caller ID
threatens a broader concept of information privacy -- a right of
the individual to control the dissemination of information about
one's self and one's activities. Kentucky states that Bell
Atlantic's claims of reduced harassing and obscene calls appear
to be more a function of changes in the handling and routing of
such calls than any real reduction on the actual placing of these
calls. Ohio OCC states that unrestricted delivery of caller ID
would undermine the ability of professionals who must work from
their residence, and that public hearing testimony in Ohio
resounded with consumer objections to disclosure of non-published
numbers.
34. Most commenters do not advocate completely unrestricted
delivery. Even those commenters that advocate unrestricted
delivery suggest a limitation on availability of the CPN under
specific circumstances. In light of the extensive record before
us, we conclude that a regulatory framework for interstate CPN-
based services such as caller ID should include some type of
privacy protection mechanism. We affirm our prior tentative
conclusion that the calling public has an interest in exercising
a measure of control over the dissemination of telephone numbers
that must be reflected in federal policies governing caller ID
service. We discuss specific privacy mechanisms in Section E
below.
35. Private Networks, Emergency Services, and Law
Enforcement. AT&T proposes that there should be no blocking
mechanisms prescribed for private or virtual private networks
because blocking on business services and on private networks
would intrude on the rights of private and virtual private
network owners to determine the amount of information delivered
on internal calls carried on their networks. AT&T and GTE concur
that business services do not commonly implicate personal safety
concerns and in a business context, identification is expected.
The NPRM sought comment on whether blocking mechanisms jeopardize
calling party identification by emergency services. USCG states
that blocking mechanisms should not apply to calls made to
emergency telephone numbers because they could degrade emergency
service operations. Pacific Bell notes that emergency services
could be affected where an individual calling line identification
display device is being used in place of the standard public
safety answering point console arrangement.
36. In the NPRM, we proposed that the privacy requirements
adopted herein to address the privacy concerns within the public
network should not apply to communications within private or
virtual private networks. We affirm that privacy expectations of
the calling party are different when they arise in the context of
internal calls within a single private network. Moreover,
commenters did not dispute that caller ID systems raise very
limited privacy expectations if used solely in connection with
legally authorized call tracing and trapping procedures
specifically requested by a law enforcement agency. We do not
apply the privacy requirements adopted in this order to these
narrow sets of circumstances.
37. The record indicates that blocking mechanisms do not
affect Enhanced 911 services, which currently locate the calling
party on emergency calls via ANI rather than SS7-based caller ID
services, which include blocking mechanisms. However, as
indicated by USCG and Pacific Bell, blocking mechanisms may
jeopardize emergency services which rely on caller ID and thus
pose a serious threat to public health and safety. To the
extent that CPN based services are used to deliver emergency
services, we find that privacy requirements for CPN based
services should not apply to delivery of the CPN to a public
agency's emergency line, a poison control line, or in conjunction
with 911 emergency services. We now turn to specific privacy
protection mechanisms for assuring that the interstate public
network includes a privacy protection option.
E. Privacy Protection Mechanisms, Further Notice of
Proposed
Rulemaking.
38. The three privacy protection mechanisms prevalent at
the state level are (1) per line blocking provided by the
telephone company for specific groups (2) per line blocking
provided by the telephone company for all customers except those
who want their telephone numbers to be delivered, and (3) per
call blocking on an automatic or operator assisted basis.
Additionally, these options can be offered in combination and
free to the user or on a fee basis. In the NPRM, we sought
comment on and analysis of the relative merits, technical
feasibility and foreseeable costs to carriers and customers of
establishing a requirement that interstate caller ID incorporate
a per call blocking option. The record demonstrates ample
support for the adoption of an automatic per call blocking
requirement on interstate caller ID offerings. We discuss each
alternative below and affirm the tentative conclusion reached in
the NPRM that carrier provided per line blocking mechanisms are
unduly burdensome. We affirm that automatic per call blocking is
the most responsive alternative to the needs of calling and
called parties for interstate calls. Finally, we request comment
on whether, and how, these policies should apply to other
services, such as delivery of the calling party name.
39. Per Line Blocking for Specific Groups. Pennsylvania
PUC states that per call blocking should be available to all
subscribers, but free per line blocking should be made available
to groups that demonstrate a higher privacy need than the
population at large. These groups include non-profit, tax-exempt
domestic violence agencies; home telephone numbers of staff
members of such agencies; federal, state and local law
enforcement; and individuals who have a need for blocking to
mitigate the risk of personal injury, as certified by a law
enforcement agency. MCI proposes a limited blocking option to
protect public safety groups. US West states that its experience
with free per line blocking for "special needs" subscribers
proved cumbersome and unfair because US West is uncomfortable
with determining what groups or individuals have special needs.
40. Commenters that advocate the availability of per line
blocking only for certain groups with heightened privacy needs do
not address how this mechanism would be implemented on an
interstate basis. The two entities that could determine
eligibility for privacy protection under this proposal would be
the carriers or the government. If the choice is left to the
carrier or carriers offering interstate caller ID, the carrier
must determine which individual subscribers are entitled to
privacy protection. Issues that arise in this determination
include: Do certain types of law enforcement personnel have
greater needs than others? Do domestic violence shelters have
greater needs than teenage runaway facilities? Do individuals
who work for these organizations have needs? How would these
individuals be identified? How would determinations be kept
current? What appeal rights would be available? These social
questions are generally not the type of issues resolved by
carriers. We conclude, on the basis of this record, that per
line blocking for a special needs category as a federal model is
not optimal. It would unnecessarily increase the role of the
federal government or carriers in making privacy choices for
subscribers. Other regulatory alternatives to address privacy
are available on a more equitable basis and do not unduly hamper
the viability of CPN based services.
41. Per Line Blocking Available to All Subscribers.
Consumer Action contends that the only way to ensure that all
residential customers do not involuntarily deliver their numbers
to caller ID equipment is to require availability of per line
blocking. Consumer Action supports its argument that per line
blocking would not undercut the usefulness of caller ID by citing
Centel's statement that, after 6 months of offering caller ID
with a per line blocking option, there was no substantial
decrease in individuals subscribing to caller ID. Missouri
Counsel states that the absence of free per line blocking
effectively eliminates the protection that unlisted numbers
provide.
42. DMA asserts that per line blocking would drive up the
cost of service and further, that if per line blocking becomes
widespread, direct marketers may be unable to use caller ID
service for a substantial segment of their customer base, and
smaller businesses may find the service unattractive. Rochester
notes that in a survey it conducted, 66% of respondents made 75%
of their calls to people who already knew their telephone number,
and 83% made at least 50% of their calls to people who knew their
number. Rochester concludes that per line blocking is only
marginally useful and substantially degrades the value of caller
ID by causing unnecessary blocked calls. USTA concurs that in
the vast majority of calls, identification of the calling number
is of little consequence to the calling party. AT&T points out
that per line blocking destroys the lifesaving potential of
caller ID for line blocked callers of emergency numbers such as
police stations because a caller in distress may forget how to
use the unblocking code.
43. In the NPRM, we tentatively concluded that per line
blocking unduly burdens calling party number based services
overall by failing to limit its applicability to those calls for
which privacy is of concern to the caller. The Commission noted
that even in the case of law enforcement personnel, there may be
a need to maintain calling number privacy on some calls, but that
the same number may be used to telephone other law enforcement
personnel, victims of crimes, cooperative witnesses, and family
or friends. The Commission asserted that in these types of
calls, calling number privacy is not needed and calling number
identification can actually be a valuable piece of information
for both the caller and called parties. The record reflects the
useful nature of CPN based services, and the comments of
Rochester illustrate that callers are likely to be interested in
blocking only a small percentage of their calls. The comments of
USCG illustrate the usefulness of caller ID to emergency
services. In contrast, Missouri Counsel's analogy to unlisted
numbers is inapposite because caller ID only permits parties
called by the calling party to capture the calling party number,
and then only if the calling party has not activated a per call
blocking mechanism. We find that the availability of per call
unblocking does not cure the ill effects of per line blocking.
Moreover, in an emergency, a caller is not likely to remember to
dial or even to know to dial an unblocking code. For the
foregoing reasons, we find that a federal per line blocking
requirement for interstate CPN based services, including caller
ID, is not the best policy choice of those available to recognize
the privacy interests of callers. Thus, carriers may not offer
per line blocking as a privacy protection mechanism on interstate
calls. We agree that certain uses of captured calling numbers
need to be controlled, and address that issue infra.
44. Operator Assisted Per Call Blocking. There is little
support in the record for operator assisted per call blocking.
Live operator assisted blocking may have a chilling effect on
callers who do not choose to disclose the calling number.
Dialing three additional digits to invoke privacy as is required
with automatic per call blocking is much less cumbersome to the
caller than having to connect to a live operator and explain that
the caller wishes to place an anonymous call. The practical
effect of a system of operator assisted blocking appears to be
that privacy is not invoked, based on the Canadian experience
wherein out of one million calls, only two were blocked. We
also note that live operator assisted blocking was not envisioned
as part of the technology of caller ID during the SS7 standards
setting process. The ANSI and Bellcore standards contemplate
automatic per call or per line blocking. If the advanced
technology of the network is capable of sustaining an automated
blocking function, it is not in the public interest to ignore the
technology and require less efficient, more cumbersome live
operator assistance.
45. Automatic Per Call Blocking. Under this approach, a
caller dials a three digit code, e.g. *67 (or 1167 for rotary or
pulse-dialing phones), to indicate that the calling number should
be blocked. The majority of commenters supporting a per call
blocking system advocate an automatic free per call method. For
example, the Ad Hoc Users and NTIA state that per call blocking
best balances the privacy interests of both the calling and the
called party. Although Bell Atlantic opposes blocking, it states
that if the Commission decides to require blocking, per call
rather than per line should be adopted. The IIA notes that
several states already require free per call blocking. Further,
IIA proposes that the Commission take into account that consumer
expectations have solidified on this issue.
46. We agree with the majority of commenters that
availability of automatic per call blocking best addresses the
privacy needs of both the calling and called parties. We note
that the majority of jurisdictions using this method on a local
basis are using *67 (or 1167 for rotary or pulse-dialing phones)
as the dialing digits and we adopt the same dialing method in our
interstate rules. As discussed in the NPRM, a regulatory
approach to privacy should not be so burdensome to the service
that it destroys its value and thus fails to take into account
the privacy needs of the called party. Per line blocking has
this effect. On the other hand, a blocking mechanism should not
be so difficult to invoke as to fail to recognize the legitimate
privacy concerns of some callers. Operator assisted blocking has
this effect. The best balance for the competing interests of the
calling and called parties is automatic per call blocking. The
option of dialing a few additional numbers to invoke privacy when
privacy is sought is a beneficial service that should be
available to consumers. Similarly, caller ID is beneficial to
the called party who should be able to receive the calling party
number in all instances where identification of the calling
number is of no consequence to the caller or where the caller may
desire identification.
47. The rules require per call blocking as the model for
privacy protection on interstate calls. As a matter of
simplicity and uniformity, per call blocking allows callers to
travel from phone to phone and make an informed privacy decision.
Per line blocking may create caller confusion when a caller
places a call from a phone over which the caller may be uncertain
whether it is equipped with per line blocking. It appears that
some carriers offering per call unblocking together with per line
blocking use the same *67 code both for unblocking presubscribed
privacy lines and for blocking lines that are not pre-blocked.
Thus, a caller may inadvertently disable privacy protection by
dialing *67 (or 1167 for rotary or pulse-dialing phones) to
invoke privacy from a phone that is already subscribed to per
line blocking. A per call blocking system avoids this unintended
result and allows callers to make decisions according to the
unique calling circumstances of each call. Automatic per call
blocking is easily used on a ubiquitous interstate basis, and
eliminates customer confusion.
48. Our objective in this proceeding is to establish
federal policies governing the passage by carriers of CPN on
interstate calls. We believe carriers should provide callers the
option of withholding their numbers from called parties on a per
call basis. It is important to note, however, that consumer
choice is not limited to the options provided by carriers.
Various companies have registered with the Commission, under
provisions of Part 68 of our rules, equipment that, for example,
automatically would insert a blocking prefix on each call going
out over a particular line. Such devices are available for as
little as $40.00 per unit. We believe general interstate passage
of CPN throughout the telephone network, except in those
individual circumstances where privacy is important to the
calling party, promises important efficiency and productivity
gains for our economy. However, individuals wishing to install
these devices and thereby screen all originating interstate calls
may elect to do so. Such a choice may create caller confusion
if others entitled to use the line are unaware of the purpose of
the device, or may place health and safety at risk if the device
conceals the calling party's location or identity from emergency
services, but these are not harms to the network. Requiring
callers seeking universal blocking to purchase such devices,
however, ensures this choice is not made lightly.
49. The majority of commenters supporting per call blocking
also propose that per call blocking be free to the calling party.
We note that this is in keeping with the blocking policies
adopted by the majority of states for intrastate calls. Per
call blocking capability is an inherent capability of SS7
technology. The design of caller ID contemplates the use of
software programs that permit either a customer to activate a
"block" on any particular call, or the central office to activate
a block on the line. In no circumstance is the information
actually "blocked" from the carrier; the terminating central
office will receive the calling number. In addition, on all
interstate calls handled by SS7, the call setup message contains
a calling party number parameter that includes a privacy
indicator. Under our rules, this "privacy flag" travels with the
call setup message through to the destination central office of
the terminating carrier. Thus, there are no significant
additional SS7 costs associated with per call blocking. Several
commenters note that there are costs associated with populating
the privacy flag at the originating end and reading it and
passing it on to the subscriber at the terminating end. Our
requirement that carriers transmit CPN includes the provision of
per call blocking capability at the originating end and of
facilities that read and honor the privacy indicator at
terminating end. Any blocking costs can be readily absorbed
because the calling party number and privacy flag are integral
elements of SS7. Moreover, we find that charging the caller for
per call blocking beyond the costs of deploying SS7 would disrupt
the balance that per call blocking establishes between the
privacy interests of the caller and called party. Charging for
per call blocking heightens the burden upon the caller to invoke
privacy and does not appear to be necessary for the overall
viability of the service.
50. Applicability to Additional Services. In addition to
calling party number delivery, SS7 technology permits delivery of
calling party name via an optional parameter that is separate
from the calling party number parameter. We tentatively
conclude that our policies for calling party number delivery
should apply equally to services delivering calling party name,
and we seek comment on this tentative conclusion. Commenters
should address any differences that may exist in the privacy
considerations that apply to calling party name delivery as
opposed to calling party number delivery. Commenters should also
address whether the policies for subscriber privacy should extend
to other services, such as services that permit subscribers to
automatically return calls or to selectively forward calls.
F. ANI and Caller Privacy.
51. In the NPRM the Commission noted that interstate ANI,
or its SS7 equivalent "charge number" parameter, already
identifies the billing number of a call to interstate subscribers
of ANI service, and is used by the LECs and IXCs for billing
purposes. IXCs, however, sometimes deliver ANI to 800 and 900
service subscribers via a dedicated line. The NPRM requested
comment on whether there are privacy interests associated with
the transmission of ANI to 800 and 900 service subscribers or
information service providers, and if so, what approaches should
be considered to address the issue. The Commission noted that
one possible approach would be to require businesses to obtain
the consent of the caller before revealing the caller's telephone
number to any third party. In this order we adopt such an
approach.
52. The majority of commenters conclude that it is not
technically feasible to block identification of ANI-based
interstate calling number in the same way as SS7-based calling
party number because it is the billing number that LECs must
provide to IXCs. Allnet proposes that LECs be required to
provide a privacy indicator with ANI. AT&T notes that ANI or the
SS7 equivalent "Charge Number" do not currently have a privacy
indicator that would signal the terminating carrier to block the
passing of the billing telephone number to the called party.
AT&T concludes that blocking requirements adopted by the
Commission should not extend to the delivery of ANI. Nynex notes
that under its SS7 interconnection tariff, in those cases where
the billing number and the CPN are the same, the calling party
number parameter will provide the billing number and the charge
number will not be sent. Nynex adds that, where there is a
difference between the billing number and the calling party
number, the charge number parameter will provide the billing
number.
53. Citicorp contends that proposals to limit the use of
ANI are contrary to the Communications Act's purpose of promoting
new telecommunications technologies. Illinois CC states that ANI
is needed to promote competition, and to restrict the use of ANI
in any way would undermine this policy goal. Ad Hoc Users,
ARINC, and Citicorp identify many beneficial uses of ANI
transmission. Ad Hoc Users adds that these significant
benefits are unfairly characterized by NYS Law as a "plague of
unsolicited marketing calls." It notes that prohibiting
transmission of ANI would shut down existing ANI applications and
would not allow new applications until SS7 interconnection of
LECs with IXCs is almost ubiquitous.
54. IIA states that because the transmission of ANI cannot
be blocked, the focus must shift from whether the called party
receives it to how the recipient uses the data. It states that
questions presented by use of ANI data are transitional and ANI
subscribers can be expected to migrate to SS7-based caller ID.
In the meantime, IIA proposes the Commission rely upon voluntary
and industry initiated efforts to explain to consumers how
information about them is gathered and used. NARUC argues that
denying commercial ANI purchasers the information ANI provides
will give carriers an incentive to expedite development of CPN
based services. Baer, Colorado DVC, Consumer Action, Michigan
PSC, and others suggest that if the Commission allows for either
per line or per call blocking, then it should also restrict the
availability of ANI exclusively to LECs and IXCs. NTIA
recommends that the Commission direct interested carriers and
manufacturers to report on the modifications needed to implement
caller blocking of ANI to the called party and formulate a plan
for so modifying existing ANI over a period of years. Sprint
concurs that ANI should be subject to privacy indicators, insofar
as technology permits.
55. Unlike the privacy indicator that can be placed on the
calling party number with respect to caller ID, the calling party
cannot place a privacy flag on ANI or its SS7-based equivalent,
the charge number parameter. Therefore, some parties suggest
that the availability of ANI be restricted exclusively to LECs
and IXCs, and should not be passed on to 800 and 900 service
subscribers for billing, routing, or other purposes. Other
commenters respond, however, that ANI is needed to sustain
beneficial services currently offered.
56. We conclude that the public interest would be served by
continuing to permit telephone companies to deliver ANI to 800,
900, and other business subscribers who pay for transmission of
the call. ANI has been available to these end users without a
privacy mechanism for several years and, as indicated above, has
spurred a multitude of beneficial applications. While we are
concerned that callers' reasonable expectation of privacy not be
violated, we do not believe that the public would be served by
terminating all access to ANI by subscribers to 800 and 900-type
services. Ad Hoc Users points out that ANI service permits the
receipt of calling numbers in real time but would not usually
provide information beyond that which such subscribers will
receive in any event on their telephone company bills because the
called party pays for the call. It states that such realtime
provision of ANI benefits calling parties by permitting a number
of substantial customer service enhancements.
57. In weighing these various public interest concerns, we
are aware that the continued deployment of SS7 throughout the
telephone networks makes available a blockable alternative to
ANI. However, where the called party pays for the interstate
call (e.g., 800 and 900 service subscribers), the situation is
somewhat analogous to a collect call regarding expectations of
confidentiality by the calling party. We believe the best
approach is to require education by the carriers (see Section G,
infra) and to restrict how 800 and 900-type service subscribers
may use ANI data. Resale of the ANI number to create marketing
lists or other information about callers without their consent
has generated much of the opposition to the availability of ANI.
Bills to restrict such practices have been introduced in Congress
and commenters in this proceeding have addressed the implications
of unrestricted availability of information about callers.
Colorado DVC, NTIA, and others urge the Commission to prohibit
the resale or use of ANI for uses other than call management,
billing, or customer services employed directly by the subscriber
to ANI end user services. To address these privacy concerns, we
prohibit the reuse or sale of ANI information by 800, 900, and
other service subscribers absent affirmative subscriber consent.
We permit the use of ANI for call management and routing
functions.
58. Concerns also have been expressed regarding the use of
ANI by 800 and 900-type service subscribers for solicitation.
For example, ANI can be used to place return calls to telephone
customers who previously have contacted an ANI 800 or 900-type
services subscriber. In this regard, Nynex proposes that use of
ANI be limited to performing and verifying transactions requested
by the caller. ARINC, on the other hand, argues that such a
restriction would diminish too severely the value of ANI for
businesses and customers. We conclude that an ANI services
subscriber may use ANI to offer products or services to an
established customer that are directly related to products or
services previously provided by the ANI services subscriber to
that customer. ANI services subscribers may also wish to
compile ANI information in an aggregate form, either to improve
operations or as a marketing tool. Our rules permit disclosure
of ANI information in aggregate form if it is compiled in a
manner which precludes identification of individual telephone
subscribers.
G. Subscriber Education, Further Notice of Proposed
Rulemaking.
59. In the NPRM, the Commission stated that carriers
offering calling party number, or facilitating transmission of
interstate caller ID, should be required to inform callers of the
availability of the service, including instructing callers how to
implement any caller privacy mechanisms. The Commission noted
that no segment of the calling public can adequately control
dissemination of the calling number under any regulatory
structure if they are unaware that their calling number is being
identified. The majority of commenters agreed that subscriber
education is in the public interest and should be implemented
with the introduction of interstate calling party number based
services, including caller ID. Commenters also expressed concern
over the education of callers whose numbers are identified via
ANI-based services.
60. We affirm our tentative conclusion that deployment of
interstate calling party number services should be accompanied by
consumer education regarding the availability of identification
services and how to invoke the privacy protection mechanism. The
record indicates that consumer information is essential to public
understanding of any privacy mechanisms associated with caller
identification services. Accordingly, we amend our rules to
require that carriers participating in the offering of services
that deliver calling party number, including ANI or charge
number, on interstate calls must notify their subscribers that
their telephone numbers may be transmitted to a called party.
In addition, such carriers must inform their subscribers of the
privacy mechanism available on interstate calls, and must explain
how subscribers can activate the privacy mechanism. Even though
the ability of the caller to activate a privacy flag is not yet
ubiquitous on calls to ANI or charge number services subscribers,
ANI or charge number services increasingly are offered through
SS7 networks, and an education effort will be most effective if
it anticipates the greater availability of a privacy flag. For
ANI or charge number services for which such privacy is not
provided, the notification must inform telephone customers of the
restrictions on the reuse or sale of subscriber information. We
specifically request further comment on whether we should
prescribe detailed instructions regarding what form education
should take or prescribe more precisely responsibilities of
various carriers. We are particularly interested in specific
joint industry education proposals (see comments of IIA, supra,
para. 54).
H. CPNI and Subscriber Privacy.
61. Privacy issues are also raised by telephone companies'
use of customer proprietary network information, or CPNI. The
Commission's current CPNI rules govern the BOCs' use of CPNI in
marketing enhanced services and CPE. The CPNI rules are
designed to balance considerations of customer privacy,
efficiency, and competitive equity. In recent months, however,
the communications industry has witnessed large local exchange
carriers' planning and entering into alliances, acquisitions, and
mergers with non-telephone company partners. In this changing
environment, access to CPNI among affiliated companies may
heighten concerns. Thus, we will seek further comment from the
public on whether the existing CPNI safeguards will adequately
meet customers' reasonable privacy expectations in the future.
The CPNI rules are currently under reconsideration in the
Computer III Remand Proceeding, and the privacy concerns related
to CPNI are more appropriately addressed in that proceeding.
Therefore, we are releasing a public notice in CC Docket No. 90-
623 seeking further comment, particularly on the issue of
residential and small business customers' CPNI-related privacy
concerns.
I. Wiretap Statutes and Caller ID.
62. In the NPRM, the Commission noted that some parties
suggest that caller ID may violate the Federal Wiretap Act
(Wiretap Act), 18 U.S.C. 3121-3127 or the Electronic
Communications Privacy Act (ECPA), 18 U.S.C. 2511. Colorado
DVC, DC OPC, NASUCA, and Ohio OCC reiterate this contention.
Other commenters such as Allnet, Bell Atlantic, Ameritech, and
AT&T argue that caller ID is permissible under ECPA or the
consent provisions of the Wiretap Act as "trap and trace"
devices. Pacific adds that caller ID is not the type of activity
that Congress intended to include in ECPA. Pacific points out
that trap and trace laws are designed to prevent surreptitious
wiretaps by the police and other parties and caller ID is not
such a wiretap because it is a tariffed service offered uniformly
and publicly to all customers.
63. In accordance with its statement in the NPRM that it
would solicit the views and analysis of the Department of
Justice, the Commission's General Counsel requested the
Department of Justice's opinion on the issue. In its reply
memorandum, the Department of Justice (DOJ) concludes that the
federal wiretap statutes embodied in the Federal Criminal Code do
not pose a barrier to interstate caller ID service. We adopt the
Department's analysis and conclusions on this issue, and are
incorporating the Department's memorandum into this Report and
Order. See Appendix D.
J. Relationship between Interstate and Intrastate Caller
ID.
64. In the NPRM, the Commission sought comment on whether
state policies concerning calling party number based services,
including caller ID, negate or hinder the development of
interstate caller ID, ANI, or both. In analyzing whether
interstate and intrastate models may coexist harmoniously both
legally and technologically, the Commission did not propose to
preempt any specific state regulation governing intrastate caller
ID. Rather, we found that it is necessary to review existing
state policies individually in order to determine whether
preemption is necessary. Many commenters, including AT&T, GTE,
and MCI, propose that the Commission use its authority to preempt
the states if state regulations impede interstate caller ID
offerings. Pacific concurs that the Commission may preempt state
regulation of caller ID because the service is not separable into
interstate and intrastate portions and state regulation
frustrates a valid federal policy.
65. Some commenters, including Ameritech, Sprint, Bell
Atlantic, and BellSouth, contend that the terminating carrier
should be required to honor any blocking indicators that are
present on interstate calls on a per call basis. BellSouth
proposes that the Commission should defer to each state's
determination of blocking options available for calls originating
in that state. Some commenters, including Colorado DVC,
Connecticut, and Consumer Action, concur that the Commission
should defer to state policies on blocking because state
regulators are more attuned to local factors including history,
culture, custom and legal environment. State commenters,
including Indiana Utility Counsel, Illinois CC, and Missouri PSC,
contend that preemption is unwarranted and untimely because
states should be able to develop standards that provide more, but
not less privacy protection to consumers. NARUC argues that
preempting state caller ID policies is inappropriate from both a
legal and policy perspective. NARUC proposes that the Commission
devise a plan that carries out federal objectives but can
substantially coexist with various state blocking plans. Some
commenters concur with NARUC and contend that federal and state
rules can coexist.
66. Many commenters, including AT&T and Pacific, contend
that existing technology renders it infeasible for carriers to
comply with one set of blocking requirements for intrastate and a
different set of standards for interstate caller ID. Allnet,
NTI, and Bell Atlantic contend that privacy standards should
apply to intrastate, interstate and international communications
and that different standards would require more complex
equipment. Specifically, Bell Atlantic asserts that substantial
development and expense over several years would be necessary to
accommodate differing interstate and intrastate standards.
67. Nynex, USTA, and SNET contend that different state and
federal policies on caller ID create caller confusion, and that a
uniform national policy for caller ID would minimize consumer
confusion. The California PUC proposes that the Commission, if
it allows interstate caller ID, should not preempt more
restrictive state privacy protections adopted for intrastate
caller ID, and instead should defer to the more restrictive
requirements in each of the states.
68. As is discussed in Section A, supra, interstate passage
of calling party number serves the public interest by making it
possible for telecommunications service providers to offer
beneficial new communications services that directly and
indirectly can increase the business sector's efficiency and
residential customers' access to information and other services.
In this proceeding we will require carriers having SS7 capability
to transmit CPN to interconnecting carriers. Recognizing that
there may be situations in which the calling party wishes to
preserve privacy, we establish *67 (and 1167 for rotary or pulse-
dialing phones) as the mechanism by which this may be done on
interstate calls. Carriers must honor a caller's choice to use
this blocking mechanism. These policies strike a reasonable
balance among significant competing interests, including
reasonable privacy expectations and economic growth. Our
approach ensures that the privacy rights of the caller are not
unreasonably infringed upon by the policies of the state where
the call terminates (in those states offering unlimited caller ID
a blocking request from another state might not otherwise be
honored) nor are the concerns of the called party unreasonably
infringed upon by the policies of the state where the call
originates (unqualified, free per line blocking likely would
significantly increase the number of blocked interstate calls).
69. We are sensitive to states' interests in protecting the
privacy of their residents, but note that limited preemption of
state regulations is necessary in some instances to ensure that
our goal of facilitating the development of interstate calling
party number based services is not frustrated by inconsistent
state law, and that state decisions with respect to caller ID or
other calling party number based services do not infringe upon
the privacy interests of parties in other states. Accordingly,
we preempt state regulation of caller ID or other calling party
number based services as follows: states may not prohibit
automatic per call blocking for interstate calls, require a
blocking alternative for interstate calls different from the one
adopted in this proceeding, or prohibit the offering of
interstate caller ID services. Thus, states may not prohibit
carriers from offering interstate services based on calling party
number, including caller ID service. States will not be able to
require the use of digits other than *67 (or 1167 for rotary or
pulse-dialing phones) for automatic per call blocking on
interstate calls, nor require carriers offering or participating
in the interstate transmission of calling party number to provide
blocking systems that interfere with the use of *67 (or 1167 for
rotary or pulse-dialing phones) to achieve blocking. Preemption
is necessary in these cases to ensure that state regulations do
not interfere with the achievement of important federal
objectives, and with the Commission's exclusive jurisdiction over
interstate communications.
70. To the extent that inconsistent regulations cannot be
accommodated simultaneously for interstate and intrastate caller
ID services, some further preemption of state regulations may
become necessary. We will examine the need for such additional
preemption on a case-by-case basis. For example, there may be
cases in which state caller ID requirements applicable to
intrastate calls would, as a practical matter, make it impossible
for carriers to implement per call blocking for interstate calls.
We are reluctant to preempt state authority over intrastate
communications, and will endeavor to accommodate state
regulations whenever possible. State policies, however, must not
frustrate the paramount federal interest in a cohesive interstate
communications policy, and must not be allowed to infringe
unreasonably upon the privacy interests of the citizens of other
states.
III. CONCLUSION
71. Our goal in this proceeding is to establish a federal
policy to govern the passage of calling party number among
carrier networks. In this order we find that a federal model for
interstate delivery of calling party number is in the public
interest, that the model must protect calling party privacy, and
that certain state regulations of interstate caller ID must be
preempted. Accordingly, we amend Part 64 of the rules to require
that common carriers using Common Channel Signalling System 7
(SS7) and subscribing to or offering any service based on SS7
functionality must transmit CPN and its associated privacy
indicator on interstate calls. We require that carriers offering
CPN based services provide automatic per call blocking at no
charge to interstate callers, and that the privacy indicator be
honored by terminating carriers. We find that the costs of
interstate transmission of CPN are de minimis, and that the CPN
should be transmitted among carriers without additional charge.
We require that carriers participating in the offering of any
service that delivers CPN on interstate calls must inform
telephone subscribers regarding the availability of
identification services and how to invoke the privacy protection
mechanism. We also seek comment on whether more specific
subscriber education requirements should be imposed. We restrict
the reuse or sale of telephone numbers by subscribers to
automatic number identification (ANI) or charge number services.
We note that additional comments are sought in the Computer III
Remand Proceeding on whether residential and small business
customers' privacy concerns warrant revision of the Commission's
rules governing reuse and sale of customer proprietary network
information (CPNI). Finally, we seek comment on extending the
policies adopted herein to other services that might identify the
calling party.
72. We expect the rules and policies adopted herein will
support the efforts of carriers, standards setting bodies,
states, CPE manufacturers, and others in providing CPN-dependent
services in an efficient manner. In this federal model, we
recognize the value and benefits to the public of interstate CPN
services, we promote the transmission of the calling party number
from the originating carrier to the terminating carrier, and we
balance the reasonable privacy expectations of both the calling
and the called party. The rules we adopt to govern services such
as interstate caller ID service remove obstacles to their
development posed by uncertainty and non-uniform state policies
and should facilitate implementation of new and beneficial
interstate services.
IV. PROCEDURAL MATTERS
73. Ex Parte Rules - Non-Restricted Proceeding. The
Further Notice of Proposed Rulemaking is a nonrestricted notice
and comment rulemaking proceeding. Ex Parte presentations are
permitted, except during the Sunshine Agenda period, provided
they are disclosed as provided in Commission rules. See
generally 47 C.F.R. Sections 1.1202, 1.1203 and 1.1206(a).
74. Final Regulatory Flexibility Analysis: Pursuant to the
Regulatory Flexibility Act of 1980, 5 U.S.C. 601 et seq., the
following final analysis has been prepared:
I. Need for and objective of the rules:
This Report and Order adopts policies governing the
transmission of the calling party number parameter and its
associated privacy indicator on interstate calls. Several
commenters to the NPRM in this proceeding have identified a
number of potential uses for interstate calling party number
based services, including caller ID, and have indicated that it
also will improve certain existing communication service
offerings. We find that the potential benefits of interstate
passage of calling party number far exceed any negative effects.
We thus adopt the conclusion reached in the NPRM that interstate
caller ID and other calling party number based services are in
the public interest and should be available to interstate
subscribers nationwide pursuant to the policies and rules set
forth in this order.
II. Summary of issues raised by the public comments in
response to the Initial Regulatory Flexibility Analysis:
No comments were submitted in direct response to the Initial
Regulatory Flexibility Analysis.
III. Significant alternatives considered:
The NPRM in this proceeding requested comments on several
proposals as well as the views of commenters on other
possibilities. The Commission has considered all comments and
has adopted regulations which require the passage of calling
party number where SS7 is deployed, facilitate interstate calling
party number based services, including caller ID, and implement
federal policy on privacy.
75. Initial Regulatory Flexibility Act Analysis on the
Further Notice of Proposed Rulemaking
An Initial Regulatory Flexibility Analysis is contained
Appendix A to this Report and Order and Further Notice of
Proposed Rulemaking.
76. Comment Dates
Pursuant to applicable procedures set forth in Sections
1.415 and 1.419 of the Commission's rules, 47 C.F.R. 1.415 and
1.419, interested parties may file comments on or before May 18,
1994 and reply comments on or before June 21, 1994. To file
formally in this proceeding, interested parties must file an
original and four copies of all comments, reply comments, and
supporting documents with the reference number "CC Docket 91-281"
on each document. If interested parties want each Commissioner
to receive a personal copy of comments, interested parties must
file an original plus nine copies. Interested parties should
send comments and reply comments to the Office of the Secretary,
Federal Communications Commission, Washington, DC 20554.
Comments and reply comments will be available for public
inspection during regular business hours in the FCC Reference
Center, Room 239, Federal Communications Commission, 1919 M
Street, N.W., Washington, DC. Copies of comments and reply
comments are available through the Commission's duplicating
contractor: International Transcription Service, Inc. (ITS,
Inc.), 2100 M Street, N.W., Suite 140, Washington, DC 20037,
(202) 857-3800.
V. ORDERING CLAUSES
77. Accordingly, It Is Ordered, that, pursuant to authority
contained in Sections 1, 4(i), 4(j), 201-205 and 218, of the
Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i),
154(j), 201-205, and 218, Part 64 of the Commission's Rules and
Regulations ARE AMENDED as set forth in Appendix C hereof,
effective April 12, 1995.
78. It Is Further Ordered, that, pursuant to authority
contained in Sections 1, 4(i), 4(j), 201-205 and 218, of the
Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i),
154(j), 201-205, and 218, Further NOTICE OF PROPOSED RULEMAKING
is hereby provided as indicated above.
79. It Is Further Ordered, that, the Secretary shall cause
a summary of this Report and Order and Further Notice of Proposed
Rulemaking to be published in the Federal Register which shall
include a statement describing how members of the public may
obtain the complete text of this Commission decision. The
Secretary shall also provide a copy of this Report and Order
Further Notice of Proposed Rulemaking to each state utility
commission.
80. For further information regarding this Report and Order
and Further Notice of Proposed Rulemaking, contact Suzanne
Hutchings, Common Carrier Bureau, Domestic Facilities Division,
(202) 634-1802.
FEDERAL COMMUNICATIONS COMMISSION
William F. Caton
Acting Secretary
APPENDIX A
INITIAL REGULATORY FLEXIBILITY ANALYSIS
Reason for Action
This rulemaking proceeding is initiated to obtain comment on
whether the Commission should adopt rules providing for
subscriber education on interstate calling party number delivery,
and for the application of federal rules and policies for
interstate calling party number delivery to interstate calling
party name delivery.
Objectives
The Commission seeks to establish an environment in which
interstate calling party number based services are made possible
and advantages of a uniform regulatory framework are realized.
Legal Basis
The proposed action is authorized under Sections 1,4, 201-205,
218 of the Communications Act of 1934, as amended, 47 U.S.C.
151, 154, 201-205, 218.
Reporting, Recordkeeping and Other Compliance Requirements
This Further Notice seeks comment on whether more specific
subscriber education requirements should be imposed on those
offering calling party number based services, and on whether and
how rules and policies on interstate delivery of calling party
number should apply to interstate calling party name delivery
services.
Federal Rules Which Overlap, Duplicate or Conflict With These
Rules
None.
Description, Potential Impact, and Number of Small Entities
Involved
Rule revisions in this proceeding could affect carrier's
offering of interstate calling party name and number based
services such as caller ID service. After evaluating the
comments and reply comments in this proceeding, the Commission
will examine further the impact of any rule changes on small
entities, and will set forth its findings in the Final Regulatory
Flexibility Analysis.
Any Significant Alternatives Minimizing the Impact on Small
Entities Consistent with the Stated Objectives
The FNPRM solicits comment on any significant alternatives
minimizing the impact on small entities consistent with the
stated objectives. APPENDIX B
Commenters
AD HOC Telecommunications Users Committee (Ad Hoc Users) *
Aeronautical Radio, Inc. (ARINC) **
Alaska - Alaska Public Utilities Commission (Alaska PUC)
ALLNET (Allnet)
American Osteopathic Association (AOA) **
American Telephone & Telegraph (AT&T) *
Ameritech Operating Companies (Ameritech) *
Arizona Corporation Commission (Arizona CC) *
Baer, Joseph (Baer)
Bell Atlantic Telephone Companies (Bell Atlantic) *
BellSouth Corporation (BellSouth) *
Bliley, Representative Thomas Jr. et al. (Committee on Energy and
Commerce)
California, Consumer Affairs of the State of (California Consumer
Affairs) *
California Public Utilities Commission (California PUC) *
Central Telephone Company (Centel) *
Citicorp (Citicorp) **
Colorado Domestic Violence Coalition (Colorado DVC)
Colorado Office of Consumer Counsel (Colorado Consumer) *
Connecticut, Attorney General for the State of (Connecticut)
Consumer Action (Consumer Action) *
Consumer Federation of America (CFA)
Computer Professionals for Social Responsibility (CPSR) *
Direct Marketing Association (DMA) *
District of Columbia, Office of the People's Counsel (DC OPC)
Georgia Consumer's Utility Counsel (Georgia CUC)
GTE Service Corp. (GTE) *
Illinois Commerce Commission (Illinois CC)
Indiana Office Of Utility Consumer Counselor (Indiana Utility
Counselor)
Indiana Utility Regulatory Commission (IURC)
Information Industry Association (IIA)
Iowa Office of Consumer Advocate (Iowa) *
Jackson, Ms. Patricia L. (Jackson)
Kentucky, Attorney General of the Commonwealth (Kentucky)
McCaw Cellular Communications (McCaw) *
Maryland People's Counsel (Maryland PC) *
Massachusetts, Office of the Attorney General (Massachusetts)
MCI Communications (MCI) *
Medical Society of New Jersey (MSNJ)
Metromedia (Metromedia)
Michigan Public Service Commission (Michigan PSC)
Missouri Office of the Public Counsel (Missouri Counsel)
Missouri Public Service Commission (Missouri PSC)
National Association of Regulatory Utility Commissioners (NARUC)*
National Association of State Utility Consumer Advocates
(NASUCA)*
National Telephone Cooperative Association (NTCA)
National Telecommunications and Information Administration
(NTIA)**
New York City, Department of Telecommunications & Energy (NYC
Telecom)
New York, Public Utility Law Project, Inc. (NY Law Project)
New York State Consumer Protector Board (NYS Consumer)
New York State Department of Law (NYS Law) *
New York State Department of Public Service (NYS PSC) *
North Carolina, Attorney General (North Carolina)
Northern Telecom Inc. (NTI) *
NYNEX Telephone Companies (Nynex) *
Ohio, Office of the Consumer's Counsel (Ohio OCC) *
Ohio State University (Ohio State University) **
Pacific Bell and Nevada Bell (Pacific) *
Pennsylvania Public Utility Commission (Pennsylvania PUC)
Pilgrim Telephone (Pilgrim)
Project Designed Systems (PDS) **
Rochester Telephone Corporation (Rochester)
Southern New England Telephone Company (SNET)
Southwestern Bell Telephone Company (SWB) *
Sprint Corporation (Sprint) **
Telocator (Telocator)
Texas Office of Public Utility Counsel(Texas PUC)
Texas, State of (Texas)
United States Coast Guard (USCG)
United States Telephone Association (USTA) **
United Telecommunications Inc. (United)
US West (US West) **
Virginia State Corporation Commission (Virginia CC)
Washington Utilities And Transportation Commission (Washington
UTC)
Yellow Pages Publishers Association (YPPA)
Numerous letters from individuals were also received. All
comments and letters were considered.
* also filed reply comments
** filed only reply comments
APPENDIX C
Part 64 of the Commission's Rules and Regulations (chapter 1 of
Title 47 of the Code of Federal Regulations, part 64) is
amended as follows:
1. The authority citation for Part 64 continues to read as
follows:
Authority: Section 4, 48 Stat. 1066, as amended; 47 U.S.C. 154,
unless otherwise noted. Interpret or apply secs. 201, 218, 225,
226, 227, 48 Stat. 1070, as amended, 1077; 47 U.S.C. 201-4, 218,
225, 226, 227 unless otherwise noted.
2. The table of contents for Part 64 is amended to read as
follows:
Subpart O - Calling Party Telephone Number. Privacy.
64.1600 Definitions
64.1601 Delivery Requirements, and Privacy Restrictions
64.1602 Restrictions on use and sale of telephone
subscriber information provided pursuant to
automatic number identification or charge number
services.
64.1603 Customer notification.
64.1604 Effective date.
3. Part 64 is amended to read as follows:
Subpart O - Calling Party Telephone Number. Privacy.
64.1600 Definitions.
(a) Aggregate Information. The term 'aggregate information'
means collective data that relate to a group or category of
services or customers, from which individual customer
identities or characteristics have been removed.
(b) ANI. The term 'ANI' (automatic number identification)
refers to the delivery of the calling party's billing number
by a local exchange carrier to any interconnecting carrier
for billing or routing purposes, and to the subsequent
delivery of such number to end users.
(c) Calling Party Number. The term Calling Party Number
refers to the subscriber line number or the directory number
contained in the calling party number parameter of the call
set-up message associated with an interstate call on a
Signalling System 7 network.
(d) Charge Number. The term "charge number" refers to the
delivery of the calling party's billing number in a
Signalling System 7 environment by a local exchange carrier
to any interconnecting carrier for billing or routing
purposes, and to the subsequent delivery of such number to
end users.
(e) Privacy Indicator. The term Privacy Indicator refers to
information, contained in the calling party number parameter
of the call set-up message associated with an interstate
call on an Signalling System 7 network, that indicates
whether the calling party authorizes presentation of the
calling party number to the called party.
(f) Signalling System 7. The term Signalling System 7 (SS7)
refers to a carrier to carrier out-of-band signalling
network used for call routing, billing and management.
64.1601 Delivery Requirements and Privacy Restrictions
(a) Delivery. Common carriers using Signalling System 7
and offering or subscribing to any service based on
Signalling System 7 functionality are required to transmit
the calling party number associated with an interstate call
to interconnecting carriers.
(b) Privacy. Originating carriers using Signalling System
7 and offering or subscribing to any service based on
Signalling System 7 functionality will only recognize *67
dialed as the first three digits of a call (or 1167 for
rotary or pulse-dialing phones) as a caller's request for
privacy on an interstate call. No common carrier
subscribing to or offering any service that delivers calling
party number may override the privacy indicator associated
with an interstate call. The terminating carrier must act
in accordance with the privacy indicator unless the call is
made to a called party that subscribes to an ANI or charge
number based service and the call is paid for by the called
party.
(c) Charges. No common carrier subscribing to or offering
any service that delivers calling party number may (i)
impose on the calling party charges associated with per call
blocking of the calling party's telephone number, or (ii)
impose charges upon connecting carriers for the delivery of
the calling party number parameter or its associated privacy
indicator.
(d) Exemptions. 64.1601 shall not apply to calling party
number delivery services (i) used solely in connection with
calls within the same limited system, including (but not
limited to) a Centrex, virtual private network, or private
branch exchange system; (ii) used on a public agency's
emergency telephone line or in conjunction with 911
emergency services, or on any entity's emergency assistance
poison control telephone line; or (iii) provided in
connection with legally authorized call tracing or trapping
procedures specifically requested by a law enforcement
agency.
64.1602 Restrictions on use and sale of telephone
subscriber information provided pursuant to
automatic number identification or charge number
services.
(a) Any common carrier providing Automatic Number
Identification or charge number services on interstate calls
to any person shall provide such services under a contract
or tariff containing telephone subscriber information
requirements that comply with this subpart. Such
requirements shall:
(1) permit such person to use the telephone number and
billing information for billing and collection,
routing, screening, and completion of the originating
telephone subscriber's call or transaction, or for
services directly related to the originating telephone
subscriber's call or transaction;
(2) prohibit such person from reusing or selling the
telephone number or billing information without first
(A) notifying the originating telephone subscriber and
(B) obtaining the affirmative consent of such
subscriber for such reuse or sale; and
(3) prohibit such person from disclosing, except as
permitted by subparagraphs (1) and (2), any information
derived from the automatic number identification or
charge number service for any purpose other than (i)
performing the services or transactions that are the
subject of the originating telephone subscriber's call,
(ii) ensuring network performance security, and the
effectiveness of call delivery, (iii) compiling, using,
and disclosing aggregate information, and (iv)
complying with applicable law or legal process.
(b) The requirements imposed under paragraph (a) shall not
prevent a person to whom automatic number identification or
charge number services are provided from using (1) the
telephone number and billing information provided pursuant
to such service, and (2) any information derived from the
automatic number identification or charge number service, or
from the analysis of the characteristics of a
telecommunications transmission, to offer a product or
service that is directly related to the products or services
previously acquired by that customer from such person. Use
of such information is subject to the requirements of 47
C.F.R. 64.1200 and 64.1504(c).
64.1603 Customer notification. Any common carrier
participating in the offering of services providing calling party
number, ANI, or charge number on interstate calls must notify its
subscribers, individually or in conjunction with other carriers,
that their telephone numbers may be identified to a called party.
Such notification must be made not later than April 12, 1995, and
at such times thereafter as to ensure notice to subscribers. The
notification shall inform subscribers how to maintain privacy by
dialing *67 (or 1167 for rotary or pulse-dialing phones) on
interstate calls. For ANI or charge number services for which
such privacy is not provided, the notification shall inform
subscribers of the restrictions on the reuse or sale of
subscriber information.
64.1604 Effective Date
The provisions of Sections 64.1601 through 64.1603 shall be
effective as of April 12, 1995.
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