FCC 94-59 Federal Communications Commission Record 9 FCC Red No. 8 Before the Federal Communications Commission Washington, D.C. 20554 CC Docket No. 91-281 In the Matter of Rules and Policies Regarding Calling Number Identification Service - Caller ID 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. 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 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 I. INTRODUCTION. 1. On October 23, 1991, the Commission issued a Notice of Proposed Rulemaking in this docket. 1 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 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.3 The NPRM sought comment on carriers' progress in deploying inter state caller ID service, and the technical and public policy implications of dual federal and state regulatory policies.4 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 inter state 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 num ber (CPN)5 based services, including interstate caller ID, must be preempted. We amend Part 64 of the rules to require that common carriers using Common Channel 1 Rules and Policies Regarding Calling Number Identification Service, (NPRM), CC Docket No. 91-281, 6 FCC Red 6752 (1991). See Appendix B for a list of commenters and corresponding abbreviations used in this order. 3 Caller ID identifies the calling party's telephone number to the called party. As an intrastate service, caller ID allows sub scribers, when they receive local telephone calls, to have the local exchange carrier transmit to them the telephone number of the station originating the call. Called parties must subscribe to caller ID from the local telephone company and purchase or lease number identification devices, which are classified as cus tomer premises equipment (CPE). Technology now being de ployed end-to-end interconnected Signalling System 7 (SS7) networks can support an interstate caller ID service. This proceeding addresses issues in anticipation of interstate caller ID and other calling party number based services becoming avail able. 4 NPRM at para. 1. 5 The calling party number is the subscriber line number or the directory number contained in the calling party number parameter of the call set-up message associated with an inter state call using SS7. The calling party number parameter in cludes an associated privacy indicator. 1764 9 FCC Red No. 8 Federal Communications Commission Record FCC 94-59 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 re quire that terminating carriers providing calling party based services, including caller ID, honor the privacy in dicator. We find that the costs of interstate transmission of CPN are de minimis, and that the CPN should be transmit ted among carriers without additional charge. We also re quire that carriers participating in the offering of any service that delivers CPN on interstate calls inform tele phone subscribers that the subscriber's number may be revealed to called parties and describe what steps subscrib ers 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 con sent. Finally, we note that additional comments are sought through a separate public notice in the Computer HI Re mand Proceeding on whether residential and small busi ness customers' privacy concerns warrant revision of the Commission's rules governing reuse and sale of customer proprietary network information (CPNI). 7 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 intra- state subscribers and augment the available choices of exist ing 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.8 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 ser vice, business fraud reduction, call routing, emergency dis patch, health care services, telephone banking, home shopping, dealer locator, and selective call message for warding. McCaw states that caller information will signifi cantly improve cellular and other service offerings because cellular subscribers pay for incoming calls. Moreover, McCaw notes that ubiquitous caller ID will facilitate cel lular enhancements including conventional caller ID, more responsive customer service, new cellular CPE voice syn thesizers, and service for roaming subscribers. SNET states that its studies show that caller ID aids persons with hear ing impairments in answering calls; law enforcement in determining crank, threatening, false alarm calls and emer gency 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. Con sumer 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 num ber 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 pri vacy, such as Call Trace, are limited in scope and do not permit either the public or service providers to take advan tage 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 in stantaneous. Service providers who respond to telephone orders, such as stock brokers or parts and equipment deal ers, 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 cen ters 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. 6 Automatic Number Identification (ANI) based services were developed in the pre-SS7 (multifrequency) signalling environ ment as the billing telephone number of the calling party, and are transmitted primarily on toll/access calls on the trunk side connection of the LEG switch. The service is used by LECs and IXCs to identify telephone numbers for billing purposes, but has been made available to customers who subscribe to 800 and 900 services. Delivery of ANI to a subscriber requires a dedicated line between the IXC and the business subscriber and is trans mitted directly to that subscriber, bypassing the terminating LEC. See NPRM at para. 5. Because it transmits essential billing information and predates SS7 technology. ANI is not blockable in the same way as the calling party number in an SS7 net work. In an SS7 environment, ANI may be delivered via a charge number parameter, which does not contain a privacy indicator as does a calling party number parameter. 7 See Computer HI Remand Proceedings: Bell Operating Com pany Safeguards and Tier 1 Local Exchange Company Safe guards, 6 FCC Red 7571, 7605-14 (1991) (enhanced services CPNI rules). 8 Id. at para. 8. 1765 FCC 94-59 Federal Communications Commission Record 9 FCC Red No. 8 8. Many of these potential services would permit transac tions to occur more efficiently. In an economy that aver ages 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 tech nological innovation and new applications that will foster economic efficiency and provide new employment, manu facturing and investment opportunities. 9. None of these services and benefits are possible, how ever, 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 ser vice needs and by having transactions completed more quickly and more accurately. As workers and entrepre neurs, they benefit by having new employment opportu nities. Businesses benefit because they can complete transactions more quickly, which can lower incremental costs of transactions, potentially leading to savings for con sumers. 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 pro viders will create incentives for carriers who do not have SS7 networks to install them. This will enhance the na tion'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 technol ogy 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 Commis sion sought detailed comments on carriers' progress toward establishing joint offerings of CPN-based services, and any impediments that have been identified.9 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 particu lar, varying state regulatory responses to privacy issues appear to be impeding the development of interstate ser vices. 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 bene ficial. In addition to providing additional choices for con sumers, such services offer significant efficiency dividends for all users of interstate telephone services. These effi ciency gains promise to lower incremental costs of inter state 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 require ments 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 in troduction 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 LEG 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. 10 13. AT&T states that requiring IXCs to transmit interstate CPN to LECs is unnecessary because the competitive mar ket already gives IXCs incentive to offer innovative inter state 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 invest ments in SS7 technology. Allnet argues that the require ment 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 in terstate 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 terminat ing LEC because it states the LEG 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 as sert that an IXC's offering of the calling party number 9 NPRM at para. 11. 10 Id. at para. 12. 1766 9 FCC Red No. 8 Federal Communications Commission Record FCC 94-59 should be available through all means of interconnection to end users, including LECs, alternative local service pro viders, or the IXC itself. 15. Nynex proposes that mandatory delivery of the call ing 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 car riers 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 originat ing carrier to the terminating carrier. In our 800 number portability proceeding, major LECs filed access tariffs pro viding for 800 number portability using SS7 technology. 12 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 fol low 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. Simi larly, the subsequent BellCore guidelines for SS7 intercon nection with a BOC include CPN as an optional parameter. 13 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 call ing party number parameter and its associated privacy indicator to connecting carriers on an interstate call. 14 Fur ther, we amend the rules to prohibit common carriers from modifying or overriding the privacy indicator on an interstate call. We emphasize that carriers are 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 wher ever 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 Num ber. 18. Most IXC commenters contend that, if required to transmit the calling party number, IXCs should be com pensated 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 ser vices 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 ar gues 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 ser vice 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 fea tures 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 param eter 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 rev enues 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 charg ing either the originating or terminating LEC for transport. Centel asserts that revenue sharing issues should be re solved 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 al locating 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. 11 See discussion of ANI in Section F, infra. 12 Provision of Access for 800 Service, 4 FCC Red 2824 (198Q), modified, 6 FCC Red 5421 (1991). 13 Common Channel Signalling (CCS) Network Interface Specification, Bellcore, TR-TSV-000905 (Issue 1, August 1989). See Appendix C. 1767 FCC 94-59 Federal Communications Commission Record 9 FCC Red No. 8 23. We find that the unimpeded flow of the calling party number throughout the network ensures the greatest diver sity 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 in cremental costs and create new employment, investment and other opportunities, they benefit a wide range of con sumers and producers. As noted above, industry standards already include calling party number as an optional param eter 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 con clude from the record before us that the costs of transmit ting 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 bene fits of caller ID and should not undermine the value of the service overall. 15 Most commenters agree that societal ex pectations of privacy require that interstate caller ID in clude some type of privacy protection mechanism. 25. Constitutional Issues. AT&T contends that the provision of interstate caller ID by private telephone com panies 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. 16 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 con stitutionally protected when a legitimate expectation exists that the information will remain confidential. 17 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. 18 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 Su preme Court held that there is no privacy right under the Fourth Amendment protecting telephone numbers from disclosure because the application of the Fourth Amend ment depends on whether first, the person invoking protec tion 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 Amend ment 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 Com monwealth 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.' 11 The constitutional privacy right asserted in Barosch 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 Penn- 15 NPRM at paras. 14-15. 16 GTE cites Dial Information Services Corp. of New York v. Thornburgh, 938 F.2d 1535 (2d Cir. 1991), (DISC), and Informa tion Providers' Coalition v. FCC, 928 F.2d 866 (9th Cir. 1991), (Information Providers). 17 Georgia CUC also cites Mangels v. Pena, 789 F.2d 836, 839 (10th Cir. 1986), (Mangels). 18 California PUC cites Pacific Gas and Electric Co. v. Pub. Util. Comm'n of California, 475 U.S. 1, 10-11 (1986) for the proposition that an individual's First Amendment right not to speak may not be vitiated as a condition for his/her use of the telephone network. 19 Barasch v. Pennsylvania Public Utility Commission , 576 A.2d 79 (Pa. Cmwlth. May 30, 1990), aff'd sub nom, Barasch v. Bell Telephone Co. of Pennsylvania, 605 A.2d 1198 (Pa., March 18, 1992) (Barasch). 1768 9 FCC Red No. 8 Federal Communications Commission Record FCC 94-59 sylvania held that caller ID violates the "trap and trace" provisions of the state wiretap law and did not address the constitutional privacy issue.20 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 com panies 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.21 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. 22 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 fed eral 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 inexpen sive 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 an swered, or while the call is in progress. SWB recognizes the need to protect the confidentiality of non-published num bers, undercover police officers, domestic violence shelters, and the integrity of hotlines. Massachusetts contends that the effective functioning of law enforcement in Massachu setts would be compromised if caller ID were offered with out a privacy protection mechanism. GTE, however, asserts that tariff language requires that the caller identify himself to the called party.23 Nynex contends that caller ID re dresses 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 con cerns 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 pro poses 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. HA 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 reduc tion 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 re sounded 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 ex tensive 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 mecha nism. 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. 20 In December of 1993, Title 66 of the Pennsylvania Consoli dated Statutes was amended to declare that caller ID is a lawful service if it permits a caller to withhold display of the caller's telephone number and other identifying information from the called party on both a per-call and per-line basis. See 66 PA. CONS. STAT. §2906 (1993). 21 Mangels, Griswold, and Whalen are inapposite. As the Court said in Mangels, "[tjhe legitimacy of any individual's expectation [of privacy] depends, at least in part, upon the intimate or otherwise personal nature of the material...." Mangels at 839. As the Court held in Smith, telephone numbers do not rise to a level of personal or intimate information. 22 The California PUC's reliance on Pacific Gas. v. California to link caller ID services with a constitutionally protected right not to speak is misplaced. In Pacific Gas v. California the Court considered whether the California PUC could require a pri vately owned telephone utility to include in its billing envelopes speech of a third party with which the utility disagrees. The Court held that the California PUC's order impermissibly re stricted billing envelope access to only views with which the telephone utility disagreed. In no instance did the Court recon sider its prior holding in Smith that there is no constitutionally recognized expectation of privacy that attaches to phone num bers. 23 GTE cites, inter alia, GTOC Tariff FCC No. 2 Section 2.3.1; AT&T Tariff F.C.C. No. 1, Section 2.4. l.C. 1769 FCC 94-59 Federal Communications Commission Record 9 FCC Red No. 8 35. Private Networks, Emergency Services, and Law En forcement. AT&T proposes that there should be no blocking mechanisms prescribed for private or virtual pri vate 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 jeop ardize 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 require ments adopted herein to address the privacy concerns with in 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 expecta tions 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.24 However, as indicated by USCG and Pacific Bell, blocking mechanisms may jeopardize emergency ser vices which rely on caller ID and thus pose a serious threat to public health and safety.25 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 inter state public network includes a privacy protection option. E. Privacy Protection Mechanisms, Further Notice of Pro posed 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 cus tomers 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 require ment that interstate caller ID incorporate a per call blocking option.26 The record demonstrates ample support for the adoption of an automatic per call blocking require ment 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 tele phone 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 imple mented on an interstate basis. The two entities that could determine eligibility for privacy protection under this pro posal 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 or ganizations have needs? How would these individuals be identified? How would determinations be kept current? What appeal rights would be available? These social ques tions are generally not the type of issues resolved by car riers. 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 pri vacy 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. Con sumer 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 24 See, e.g., Nynex at 14, n.18. 25 See Appendix C, § 64.1602(d). 26 NPRM at para. 20. 1770 9 FCC Red No. 8 Federal Communications Commission Record FCC 94-59 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 margin ally 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 ser vices 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 enforce ment 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 per sonnel, 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 useful ness of caller ID to emergency services. In contrast, Mis souri 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 un blocking does not cure the ill effects of per line blocking. Moreover, in an emergency, a caller is not likely to re member 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 ser vices, 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 con trolled, 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 con nect 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.27 We also note that live operator assisted blocking was not envisioned as part of the technology of caller ID during the SS7 stan dards 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 sustain ing 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 num ber should be blocked. The majority of commenters sup porting 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 Commis sion 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 pro poses that the Commission take into account that con sumer 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 con cerns 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 identifica tion 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 sim plicity 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 27 See Bell Canada - Introduction of Call Management Service, Telecom Decision CRTC 90-10 (May 9, 1990). The Canadian Radio-television and Telecommunications Commission now re quires free automatic per call blocking; Bell Canada has dis continued free operator assisted per call blocking. See Call Management Service - Blocking of Calling Number Identification, Decision CRTC 92-7 (May 4, 1992). 1771 FCC 94-59 Federal Communications Commission Record 9 FCC Red No. 8 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 dial ing *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 fed eral 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 par ties 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 through out the telephone network, except in those individual cir cumstances 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.28 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 con templates 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 addi tional 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 termi nating 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 de livery of calling party name via an optional parameter that is separate from the calling party number parameter.29 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 auto matically 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 de liver ANI to 800 and 900 service subscribers via a dedi cated 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.30 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 tele phone 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 28 The policy underlying Part 68 registration of customer premises equipment is that consumers should be able to attach to the telephone network devices they find to be privately beneficial that are not publicly detrimental, in other words, that do not cause harm to the network. 29 State public utility commissions in Texas and Minnesota have approved calling party name and number delivery services. See National Association of Regulatory Utilities Commissioners Bulletin, May 24, 1993 and July 26, 1W3. 30 Id. at para. 29 and n.49. 1772 9 FCC Red No. 8 Federal Communications Commission Record FCC 94-59 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 iden tify many beneficial uses of ANI transmission.31 Ad Hoc Users adds that these significant benefits are unfairly char acterized by NYS Law as a "plague of unsolicited market ing 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 can not 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 mi grate 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 Ac tion, Michigan PSC, and others suggest that if the Commis sion 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 modi fying 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. There fore, 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.32 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 benefi cial applications. While we are concerned that callers' rea sonable 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 sub scribers will receive in any event on their telephone com pany 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.33 However, where the called party pays for the interstate call (e.g., 800 and 900 service subscribers), the situation is somewhat analogous to a col lect 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 con sent has generated much of the opposition to the availabil ity 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 cus tomer 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.34 58. Concerns also have been expressed regarding the use of ANI by 800 and 900-type service subscribers for solicita tion. 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 31 Ad Hoc Users states that such applications include giving immediate medical assistance data to technicians who have been called by patients with pacemakers, use of ANI by investment firms as a check against fraud, use of ANI to process orders for pay-per-view cable television, routing of callers to specialized agents or announcements, business to business automated order ing and ANI-based employee dispatching. ARINC states that many airlines use ANI via their 800 service reservations net works to provide better service to regular customers, to verify telephone billings, to route calls among reservation centers, to detect fraud and to identify threatening calls. Citicorp notes that ANI can be used for customized customer services, telephone banking and home shopping, saving unnecessary holding time. retrieval of a customer's prior transactions, service representa tive calling back when a customer is cut off, and triggering letters to poll customers to determine deficiencies of service. 32 E.g., Baer, Colorado DVC, Consumer Action, Michigan PSC. 33 In an SS7 environment, if the calling party number and the charge number of a telephone subscriber are identical, the CPN and its associated privacy indicator may be used for billing purposes. See Nynex at 5, n.3. 34 See Appendix C, Section 64.1602. See also 47 C.F.R. Section 64.1504(c) (prohibits use of 800 service to provide information services unless the calling party has a "presubscription or com parable arrangement" with the information provider). 1773 FCC 94-59 Federal Communications Commission Record 9 FCC Red No. 8 customer that are directly related to products or services previously provided by the ANI services subscriber to that customer.35 ANI services subscribers may also wish to com pile ANI information in an aggregate form, either to im prove 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 call ers how to implement any caller privacy mechanisms.37 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 in troduction 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 ac companied by consumer education regarding the availabil ity 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 tele phone numbers may be transmitted to a called party.39 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 mecha nism. 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 ser vices 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 respon sibilities of various carriers.40 We are particularly interested in specific joint industry education proposals (see com ments of HA, supra, para. 54). H. CPNI and Subscriber Privacy. 61. Privacy issues are also raised by telephone com panies' use of customer proprietary network information, or CPNI.41 The Commission's current CPNI rules govern the BOCs' use of CPNI in marketing enhanced services and CPE.42 The CPNI rules are designed to balance consid erations of customer privacy, efficiency, and competitive equity. In recent months, however, the communications industry has witnessed large local exchange carriers' plan ning and entering into alliances, acquisitions, and mergers with non-telephone company partners.43 In this changing environment, access to CPNI among affiliated companies may heighten concerns. Thus, we will seek further com ment from the public on whether the existing CPNI safe guards will adequately meet customers' reasonable privacy expectations in the future. The CPNI rules are currently under reconsideration in the Computer III Remand Pro ceeding, and the privacy concerns related to CPNI are more appropriately addressed in that proceeding. There fore, 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 Wire tap Act (Wiretap Act), 18 U.S.C. §§ 3121-3127 or the Electronic Communications Privacy Act (ECPA), 18 U.S.C. § 25II.44 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 35 The Commission's rules implementing the Telephone Con sumer Protection Act of 1991 (TCPA) prohibit calls by a tele phone solicitor to residential telephone subscribers who have asked that they receive no solicitation calls from that person or entity. We emphasize that these rules apply where the tele phone numbers of residential subscribers are obtained via caller ID, ANI or charge number services. See Section 64.1200 of the Commission's rules. 36 See Section 64.1602, Appendix C.L 37 NPRM at para. 23.38 Id. 39 See Section 64.1603, Appendix C. 40 Pacific Bell has expressed concern in ex parte comments to Commission staff that subscriber education requirements im posed by the state of California as a condition to the introduc tion of intrastate calling party number based services, like caller ID, are so burdensome to preclude, as an economic matter, offering of caller ID services in California. The record in this proceeding is not sufficient to resolve this issue. Carriers may present issues of state regulation of interstate service to the Commission for consideration under the standards set forth in Louisiana Public Service Comm'n v. FCC, 476 U.S. 355 (1986). See also para. 70, infra. 41 CPNI encompasses any information about customers' net work services and their use of those services that a telephone company possesses by virtue of its provision of network services. See Filing and Review of Open Network Architecture Plans, 4 FCC Red 1, 215 (1988). 42 See Computer III Remand Proceedings: Bell Operating Com pany Safeguards and Tier 1 Local Exchange Company Safe guards, 6 FCC Red 7571, 7605-14 (1991) (enhanced services CPNI rules); Furnishing of Customer Premises Equipment by the Bell Operating Telephone Companies and the Independent Telephone Companies, 2 FCC Red 143, 152-153 (1987) (CPE CPNI rules). These rules do not apply to independent LECs. 43 See, e.g., BellSouth's agreement in principle to acquire an interest in Prime Management Co.: US West's $2.5 billion in vestment in Time Warner Entertainment Co.; and NYNEX's agreement to invest $1.2 billion in Viacom. 44 NPRM at paras. 24-26. 1774 9 FCC Red No. 8 Federal Communications Commission Record FCC 94-59 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 surrepti tious 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 conclu sions 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.45 In analyzing whether interstate and intrastate models may co exist 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 individ ually in order to determine whether preemption is neces sary.46 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 por tions and state regulation frustrates a valid federal policy. 65. Some commenters, including Ameritech, Sprint, Bell Atlantic, and BellSouth, contend that the terminating car rier 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, con cur 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 envi ronment. State commenters, including Indiana Utility Counsel, Illinois CC, and Missouri PSC, contend that pre emption 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 pre empting 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 con tend that federal and state rules can coexist. 66. Many commenters, including AT&T and Pacific, con tend 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 pro poses that the Commission, if it allows interstate caller ID, should not preempt more restrictive state privacy protec tions 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 mak ing 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 mecha nism by which this may be done on interstate calls. Car riers 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 un reasonably 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.47 Accordingly, we preempt state regulation of 45 NPRM at para. 34. 46 Id. at para. 30. 47 See City of New York v. FCC, 486 U.S. 57 (1984); Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691 (1984). We conclude that the fact that the federal wiretap statutes do not, as a matter of federal criminal law policy, preempt states from adopting great er privacy protection measures, see United States v. Capra, 501 F.2d 267, 276 (2d Cir. 1974), cert, denied, 402 U.S. 990 (1975); S. Rep. No. 1097, 90th Cong., 2d Sess. 93 (1968), does not affect our authority to preempt as a matter of federal communications policy. 1775 FCC 94-59 Federal Communications Commission Record 9 FCC Red No. 8 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 inter state calls different from the one adopted in this proceed ing, or prohibit the offering of interstate caller ID services. Thus, states may not prohibit carriers from offering inter state 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 inter state 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 im portant federal objectives, and with the Commission's ex clusive jurisdiction over interstate communications.48 70. To the extent that inconsistent regulations cannot be accommodated simultaneously for interstate and intrastate caller ID services, some further preemption of state regula tions may become necessary.49 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 prac tical 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 when ever possible. State policies, however, must not frustrate the paramount federal interest in a cohesive interstate com munications 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 fed eral 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 subscrib ing 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 hon ored 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 addi tional charge. We require that carriers participating in the offering of any service that delivers CPN on interstate calls must inform telephone subscribers regarding the availabil ity 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 num bers by subscribers to automatic number identification (ANI) or charge number services. We note that additional comments are sought in the Computer III Remand Proceed ing 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 fa cilitate implementation of new and beneficial interstate services. IV. PROCEDURAL MATTERS 73. Ex Pane Rules - Non-Restricted Proceeding. The Fur ther Notice of Proposed Rulemaking is a nonrestricted notice and comment rulemaking proceeding. Ex Pane pre sentations are permitted, except during the Sunshine Agen da 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 iden tified a number of potential uses for interstate calling party number based services, including caller ID, and have in dicated that it also will improve certain existing commu nication 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 inter est and should be available to interstate subscribers nation wide 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. 48 We note that the Department of Justice memorandum, which also addresses preemption issues, is consistent with our analysis of preemption. See Appendix D at 9-13. 49 See generally, Louisiana Public Service Comm'n v. FCC; NARUC v. FCC, 880 F.2d 422 (D.C. Cir. 1989). See also para. 60. n. 38, supra. 1776 9 FCC Red No. 8 Federal Communications Commission Record FCC 94-59 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 pri vacy. 75. Initial Regulatory Flexibility Act Analysis on the Fur ther 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, inter ested 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 busi ness hours in the FCC Reference Center, Room 239, Fed eral Communications Commission, 1919 M Street, N.W., Washington, DC. Copies of comments and reply comments are available through the Commission's duplicating con tractor: 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 author ity 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 in dicated 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 Regis ter which shall include a statement describing how mem bers 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, con tact Suzanne Hutchings, Common Carrier Bureau, Domes tic 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 par ty 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 Re quirements This Further Notice seeks comment on whether more specific subscriber education requirements should be im posed on those offering calling party number based ser vices, 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 En tities 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 alter natives minimizing the impact on small entities consistent with the stated objectives. 1777 FCC 94-59 Federal Communications Commission Record 9 FCC Red No. 8 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 (Califor nia 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 (Con necticut) 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 (In diana 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 (Mas sachusetts) 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 Commis sioners (NARUC)* National Association of State Utility Consumer Ad vocates (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 (Pennsylva nia 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 Commis sion (Washington UTC) Yellow Pages Publishers Association (YPPA) 1778 9 FCC Red No. 8 Federal Communications Commission Record FCC 94-59 Numerous letters from individuals were also re ceived. 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 sees. 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 by adding subpart P to read as follows: Subpart P - Calling Party Telephone Number. Privacy. § 64.1600 Definitions § 64.1601 Delivery Requirements, and Privacy Restric tions § 64.1602 Restrictions on use and sale of telephone sub scriber information provided pursuant to automatic number identification or charge number services. § 64.1603 Customer notification. § 64.1604 Effective date. 3. Subpart P of Part 64 is added to read as follows: § 64.1600 Definitions. (a) Aggregate Information. The term 'aggregate in formation' means collective data that relate to a group or category of services or customers, from which individual customer identities or characteris tics have been removed. (b) ANI. The term 'ANI' (automatic number iden tification) refers to the delivery of the calling party's billing number by a local exchange carrier to any interconnecting carrier for billing or routing pur poses, 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 asso ciated with an interstate call on a Signalling System 7 network. (d) Charge Number. The term "charge number" re fers to the delivery of the calling party's billing num ber 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 re fers to information, contained in the calling party number parameter of the call set-up message asso ciated 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 Sys tem 7 and offering or subscribing to any service based on Signalling System 7 functionality are re quired to transmit the calling party number asso ciated with an interstate call to interconnecting carriers. (b) Privacy. Originating carriers using Signalling Sys tem 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 ser vice 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 num ber 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 con necting 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 con nection with calls within the same limited system, including (but not limited to) a Centrex, virtual pri vate 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 tele phone line; or (iii) provided in connection with le gally authorized call tracing or trapping procedures specifically requested by a law enforcement agency. § 64.1602 Restrictions on use and sale of telephone sub scriber information provided pursuant to automatic number identification or charge number services. (a) Any common carrier providing Automatic Num ber Identification or charge number services on inter state calls to any person shall provide such services under a contract or tariff containing telephone sub scriber 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 1779 FCC 94-59 Federal Communications Commission Record 9 FCC Red NO. 8 telephone subscriber's call or transaction, or for ser vices directly related to the originating telephone sub scriber'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 subscrib er 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 informa tion derived from the automatic number identifica tion or charge number service for any purpose other than (i) performing the services or transactions that are the subject of the originating telephone subscrib er'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 num ber identification or charge number services are pro vided from using (1) the telephone number and billing information provided pursuant to such ser vice, and (2) any information derived from the auto matic 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 sub scribers of the restrictions on the reuse or sale of sub scriber information. § 64.1604 Effective Date The provisions of Sections 64.1601 through 64.1603 shall be effective as of April 12, 1995. 1780 9 FCC Red NO. 8 Federal Communications Commission Record_________FCC 94-59 SEPARATE STATEMENT OF COMMISSIONER ANDREW C. BARRETT RE: Rules and Polices Regarding Calling Number Identification Service - Caller ID (CC Docket No. 91-281) In tnis Report and Order, the Commission finds that a federal model for interstate delivery of a calling party number(CPN) is in the public interest, that calling party privacy must be protected, and that certain state regulation of interstate caller ID must be preempted. Accordingly, the Commission amends its rules to require that: (1) common carriers using Signalling System 7 (SS7) and subscribing to or offering any service based on SS7 functionality must transmit the CPN and its associated privacy indicator on an interstate call to connecting carriers; (2) carriers offering CPN delivery services provide, at no charge to the caller, and automatic per-call blocking mechanism, *67, for interstate callers; (3) terminating carriers providing CPN delivery services, including caller ID, must honor the *67 privacy indicator; and (4) carriers participating in services that deliver CPN on interstate calls must inform telephone subscribers that the CPN may be revealed to called parties and educate customers about how to obtain privacy. The Commission also adopts rules to address privacy concerns raised by the reuse or sale of information generated by automatic number identification (ANI), and seeks additional comment on whether the privacy concerns by residential and small business customers warrant revising the Commission's rules governing the reuse and sale of customer proprietary network information (CPNI). Finally, the Commission adopts a Further Notice of Proposed Rulemaking to solicit comment on (1) whether the Commission should prescribe more precise educational requirements, and (2) whether and how the policies adopted on caller ID should be extended to other identification services, such as caller party name or CPNI. I support this action because I believe that it balances the primary public policy considerations in this proceeding regarding how to facilitate the interstate transmission of CPN through services including caller ID while offering individuals an opportunity to protect their privacy. I write separately on this issue to underscore that the Commission must monitor the extent that the implementation of these rules effectively mitigates the confusion created by the varying state practices regarding the transmission of CPN and associated blocking procedures for intrastate calls. Admittedly, me Commission's actions will not explicitly preempt states on intrastate practices, but I am concerned that the combination of the federal policy for interstate calls and various intrastate practices may require some education for consumers. Accordingly, I believe that the Further Notice is an appropriate step toward prescribing more precise educational requirements, if necessary. 1781 FCC 94-59 Federal Communications Commission Record 9 FCC Red NO. 8 I also am interested in how states will resolve situations where: (1) states currently lack privacy capability, and will have to provide some equipment; and (2) states currently use per-line blocking for intrastate calls and will have to accommodate *67 blocking capability. I believe that the federal policy adopted today by the Commission is a minimally intrusive measure given the variety of state practices, and may manage the level of confusion for consumers most effectively compared to alternative approaches. Nonetheless, I will be interested in reviewing the practical effect of these rules. 1782