Reconsideration Order
. In particular, the FCC clearly
made distinctions between "retention" versus "winback," by allowing the carrier
to only use CPNI to attempt to regain the business of a customer who has switched
to, and who is receiving service from another carrier. The commission includes
these requirements in its revisions to §26.122(c)(3) in order to be consistent
with the FCC's comments on this issue.
Specific comments to rule language
Section 26.122(c)(2) pertaining to customer premises
equipment (CPE) and information services.
SWBT suggested that subsection (c)(2) include information on the "total
service relationship" that the FCC discussed in its
Reconsideration Order
. Specifically, SWBT claims that adding the premises
upon which the "total service relationship" exists will correct the current
Texas rule's inconsistency with the FCC's rules. Those provisions that SWBT
cited from the
Reconsideration Order
and suggested
for inclusion are that (1) the relationship is defined by what the customers
reasonably understand their telecommunications service to include; (2) the
customer does not expect or desire their carrier to maintain internal divisions
among the different components of their service, particularly where such CPNI
use could improve the carrier's provision of the customer's existing service;
and (3) the customers expect that CPNI generated from their entire service
will be used by their carrier to market improved service within the parameters
of the customer-carrier relationship.
The commission disagrees with SWBT's suggested changes to this subsection
and finds that no inconsistency exists with FCC rules with respect to the
proposed language under subsection (c)(2).
Section 26.122(c)(4) relating to customer's right
to restrict CPNI.
Verizon argued that the customer's right to restrict CPNI, as proposed
under subsection (c)(4) appears to allow customers the ability to prohibit
the use of CPNI in instances where the use of CPNI is expressly permitted
by the FTA (
e.g.
, using CPNI to market "related"
services). Verizon asserted that this paragraph is inconsistent with the FTA
and should be deleted.
The commission has reviewed the discussion of this subsection in the previous
preamble to this rule, and reaffirms its' position that FTA §222(c)(1)(A)
does not deny customers the ability to restrict the use of their own CPNI
for services to which they currently subscribe, but rather it serves as a
restriction of the telecommunications utility's use, disclosure, or provision
of access to CPNI. With respect to Verizon's concerns, the commission does
not find an inconsistency with the FCC's rules. Consistency does not require
strict adherence to the FCC's language.
Section 26.122(d) relating to customer approval
for use of CPNI.
The commission addresses this subsection in its discussion under preamble
question number two above.
Section 26.122(e) sets forth the requirements
for obtaining customer approval.
Verizon stated that in the
Clarification Order
, the FCC held that pending the completion of its rulemaking on its
CPNI rules, carriers are permitted to obtain consent using either an "opt-in"
or "opt-out" mechanism. Verizon argued that if the commission's current rule
embodies an "opt-in" approach, it must be amended to include an "opt-out"
option to be consistent with the FTA, the FCC's rules, and the
U.S. West
decision.
The commission finds this subsection allows telecommunications carriers
the flexibility of providing customers with either an "opt-in" or "opt-out"
approval process, and disagrees with Verizon's assertion that this subsection
is inconsistent with the FTA, the FCC's rules, and the
U.S. West
decision.
Section 26.122(f)(1) relating to specific notification
requirements.
The proposed language in this subsection sets forth the requirement that
if written notification is provided, "the notice must be legible and be placed
in an area so as to be readily apparent to a customer." The OAG recommends
replacing the word "legible" with the words "clear and conspicuous" since
this term has a long-standing meaning in the law of consumer disclosure and
advertising.
The commission is not persuaded that such a replacement is necessary. The
FCC's rule, 47 C.F.R. §64.2007(f)(2)(v), uses the term "legible" to describe
the requirements for written notification. Furthermore, §26.122(f)(3)
establishes a procedure for staff review of the notification prior to distribution.
Section 26.122(f)(2)(D) relating to other notification
requirements.
Sprint suggested removing the implied reference to both time and space.
Sprint argues that 47 C.F.R. §64.2007(f)(3) merely requires that the
approval must be "proximate to" the notification. Consequently, Sprint contends
the requirement that the "solicitation for approval must be proximate in time
to the notification of a customer's CPNI rights, and if written, placed in
the same envelope" are terms not used in the federal rule and should be removed
for consistency.
The commission is not persuaded that this provision is inconsistent with
the FCC's rule. The requirement that the solicitation for approval be proximate
in time to customer notification merely insures the customer is able to make
an informed decision. Further, the requirement that any approval mechanism
be placed in the notification envelope merely insures the solicitation is
proximate to the notification.
Section 26.122(f)(3) relating to staff review
of customer notification.
Sprint claimed that the requirement for the commission to review notification
language prior to it being sent to the customer is not in the federal rules
and that a less time consuming process would be preferred. Sprint suggested
that the rule could prescribe notification language and address "violations"
/ "problems" if and when they occur.
In its reply comments, WorldCom agreed with Sprint's position on §26.122(f)(3)
that the federal rules do not require approval of CPNI language by either
the FCC or state commissions and concurs that the commission should consider
a less time consuming process. WorldCom suggested that the commission require
that CTU's submit their proposed notice to the commission, and in turn, the
commission would have to complete its review of the notice within 30 calendar
days. The notice would be deemed approved unless the commission notified the
CTU of deficiencies before the expiration of the 30 day period.
The commission is not persuaded by WorldCom and Sprint's arguments. WorldCom's
proposal would allow the commission to have 30 calendar days to review the
notification. The current requirement set forth in §26.122(f)(3) requires
review of the notification by staff within ten days, and is therefore not
overly burdensome. Furthermore, this provision gives effect to the provisions
of PURA §62.023(b)(1), which require each telecommunications utility
to annually notify, by means approved by the commission, each subscriber of
their right to reject the carrier's use of the subscriber's CPNI.
Section 26.122(g) relating to safeguards.
This subsection requires that a carrier implement a number of safeguard
provisions for the use of customer-specific CPNI "prior to solicitation of
a customer's approval." Sprint suggested removing the "prior" requirement
in the proposed rules to be consistent with the federal rules.
The commission finds that the proposed language for this subsection does
not contradict the FCC's intent in 47 C.F.R. §64.2009(a), which requires
the implementation of a system to determine the status of a customer's CPNI
approval prior to use of CPNI.
Section 26.122(g)(1) relating to safeguard provisions
for the use of customer-specific CPNI.
WorldCom suggested that the proposed changes to this subsection be clarified
by eliminating the phrase, "In implementing this system, CTU's may consider
their unique size, capitol resources, culture, and technological capabilities."
WorldCom argues that such language may be construed by the commission to require
that larger companies have more burdensome obligations than other carriers
to track and access CPNI, and therefore, the commission should adopt language
that is consistent with the FCC's rule, 47 C.F.R. §64.2009.
The commission agrees with WorldCom's suggestion to delete the phrase,
"In implementing this system, CTU's may consider their unique size, capitol
resources, culture, and technological capabilities."
The OAG suggested amending subsection (g)(1) to include an additional requirement
that the CPNI approval status be accessible to the customer on a reasonable
basis, asserting that a customer who has forgotten or lost records should
not have to wait days or weeks to determine their approval status.
WorldCom argued in its reply comments that the change suggested by the
OAG is unreasonable, asserting that the OAG's proposal is not a federal requirement
and implies costly system changes for the CTU. WorldCom urged the commission
to reject the OAG's proposal. Verizon argued that the OAG has misinterpreted
the purpose of this subsection. Verizon asserted that the intent is to ensure
that carriers are able to track customers' CPNI approvals so that the carriers'
marketing and sales personnel can ascertain the CPNI status of a customer
before initiating marketing efforts.
The commission agrees with Verizon's comments that the purpose of this
subsection is to provide carriers with information that indicates the status
of CPNI approvals prior to initiation of marketing activities. The commission
disagrees with the OAG's request to add a requirement that the CPNI approval
status be accessible to the customer on a reasonable basis. As discussed earlier,
rules regarding CPNI serve to restrict the CTU's use, disclosure, or provision
of access to CPNI.
Section 26.122(k) relating to the effective date
of subsections (g)(1) and (g)(3).
The commission finds that this subsection of the rule, relating to the
effective date of safeguard measures carriers must implement prior to use
of CPNI, is no longer necessary. The original intent of this provision was
to allow carriers an extension of time to implement software flags and electronic
audit mechanisms, in light of the FCC's order released on September 24, 1998
in CC Docket No. 96-115 granting the extension. Since that time, the FCC amended
this provision in its'
Clarification Order
and those changes are reflected in this amended rule. Accordingly, the commission
finds that deletion of this subsection, although not suggested in the proposed
rule, is aligned with the FCC's rules and does not have an effect on the interpretation
or requirements of this rule.
All comments, including any not specifically referenced herein, were fully
considered by the commission. In adopting this section, the commission makes
other minor modifications for the purpose of clarifying its intent.
This amendment is adopted under the Public Utility Regulatory
Act, Texas Utilities Code Annotated §14.002 (Vernon 1998 and Supplement
2002) (PURA) which provides the commission with the authority to make and
enforce rules reasonably required in the exercise of its powers and jurisdiction;
specifically, PURA §62.022 which sets out requirements relating to a
telecommunications utility's use of specific CPNI; and §62.023 which
requires the commission to adopt rules consistent with FCC rules relating
to specific CPNI.
Cross Reference to Statutes: Public Utility Regulatory Act §§14.002,
62.022, and 62.023.
§26.122.Customer Proprietary Network Information (CPNI).
(a)
Application. This section applies to all certificated telecommunications
utilities (CTUs) as defined in §26.5 of this title (relating to Definitions).
(b)
Purpose. The purpose of this section is to delineate the
circumstances in which CTUs are required to gain approval of the customer
prior to using, disclosing, or permitting access to customer-specific customer
proprietary network information (CPNI), and to set forth the requisites for
obtaining customer notification and approval. This section is intended to
be consistent with the federal Telecommunications Act of 1996 §222 in
balancing competitive and consumer privacy interests with respect to customer-specific
CPNI.
(c)
Customer approval not required. A CTU may use, disclose,
or permit access to customer- specific CPNI, without customer approval, as
described in this subsection.
(1)
Generally. Any CTU may use, disclose, or permit access
to customer-specific CPNI for the purpose of providing or marketing service
offerings, or alternate versions of existing service, which may include additional
or related offerings, within the category of service (
i.e.
, local, interexchange) already subscribed to by the customer from
the same utility, without customer approval. Any CTU may use, disclose, or
permit access to customer-specific CPNI for the purpose of providing optional
extended area calling plans that a CTU may offer pursuant to §26.217
of this title (relating to Administration of Extended Area Service (EAS)
Requests and §26.219 of this title (relating to Administration of Expanded
Local Calling Service Requests), or pursuant to a final order of the commission
in a proceeding pursuant to the Public Utility Regulatory Act §§53.101
- 53.113, 53.151, 53.152, 53.201, 53.202, 53.251, 53.252, 53.301, and 53.303
- 53.307.
(2)
Customer premises equipment (CPE) and information services.
A CTU may use, disclose, or permit access to customer-specific CPNI derived
from its provision of local exchange service or interexchange service to their
customers to separately market CPE and information services, including call
answering, voice mail or messaging, voice storage and retrieval services,
fax storage and retrieval services, and protocol conversions.
(3)
Winback. A CTU may use CPNI to regain the business of customers
who have switched to and are receiving service from another provider. The
CTU may only use the former customer's CPNI to engage in "winback" marketing
campaigns to regain that customer's service within the same category of service
from which the CPNI was obtained. Section 222 of the FTA does not allow carriers
to use CPNI to retain soon-to-be former customers where the carrier gained
notice of a customer's imminent cancellation of service through the provision
of carrier-to- carrier service.
(4)
Affiliates. If an affiliate telecommunications utility
provides different categories of service, and a customer subscribes to more
than one category of service offered by the CTU and/or its affiliate, the
CTU is permitted to share customer-specific CPNI only to those affiliated
entities that provide a service offering to the customer. If a customer does
not subscribe to service from an affiliate the CTU is not permitted to share
customer-specific CPNI with its affiliated entities, absent customer approval.
(5)
Customer's right to restrict CPNI. Even though customer
approval is not required for situations set forth in paragraphs (1) - (4)
of this subsection, a customer may notify the CTU that such customer restricts
the use of, disclosure of, and access to that customer's specific CPNI for
use in the situations described in paragraphs (1) - (4) of this subsection.
(6)
Exceptions. Nothing in this section prohibits a CTU from
using, disclosing, or permitting access to customer-specific CPNI obtained
from its customers, either directly or indirectly:
(A)
to provide inside wiring installation, maintenance, or
repair services;
(B)
to initiate, render, bill for, or collect for customer-authorized
telecommunications services;
(C)
to protect the rights or property of the utility, or to
protect users of those services and other carriers from fraudulent, abusive,
or unlawful use of, or subscription to, such services;
(D)
to market services other than those to which a customer
already subscribes, or alternate versions of existing service, which may include
additional or related offerings, if such customer contacts the CTU to inquire
about such services offered by the CTU; or
(E)
to conduct research on the health effects of commercial
mobile radio services (CMRS).
(d)
Customer approval required.
(1)
Except as described in subsection (c) of this section,
a CTU may not use, disclose, or permit access to customer-specific CPNI, without
customer approval, for the following:
(A)
to market to a customer service offerings that are within
a category of service to which the customer does not already subscribe from
that CTU, unless the CTU has customer approval to do so;
(B)
to provide Internet access; or
(C)
to identify or track customers who call competing service
providers.
(2)
Notwithstanding the requirements of subsection (c)(1) of
this section, when a customer purchases CPE or information services from a
CTU that are bundled with a telecommunications service, the CTU subsequently
may use any customer information independently derived from the CTU's prior
sale of CPE to the customer or the customer's subscription to a particular
information service offered by the CTU in its marketing of new CPE or a similar
information service that is bundled with a telecommunications service.
(e)
Obtaining customer approval. A CTU that is required by
this section to obtain customer approval to use, disclose, or permit access
to customer-specific CPNI to market a customer service to which the customer
does not already subscribe from that CTU must do so in compliance with the
following requirements of this subsection. Customer approval remains in effect
until the customer revokes or limits such approval. Approval obtained before
the effective date of this section, if obtained in compliance with Federal
Communications Commission (FCC) rules in existence at the time of the approval,
shall be valid until the customer revokes or limits such approval.
(1)
A CTU may obtain approval through written, oral, or electronic
methods;
(2)
A CTU relying on oral approval must bear the burden of
demonstrating that such approval has been given in compliance with this section;
(3)
A CTU must maintain records of notification and approval,
whether oral, written, or electronic, for at least one year.
(f)
Notification. Prior to any solicitation for customer approval,
a CTU must provide a one-time notification, through oral or written methods,
to the customer of the customer's right to restrict use of, disclosure of,
and access to that customer's CPNI.
(1)
Specific notification requirements. Customer notification,
through either oral or written methods, must provide sufficient information
to enable the customer to make an informed decision as to whether to permit
a CTU to use, disclose, or permit access to the customer's CPNI. The notification
must be comprehensible and not be misleading. If written notification is provided,
the notice must be legible and be placed in an area so as to be readily apparent
to a customer. In carrying out this provision, the notification must:
(A)
specify the types of information that constitute CPNI,
describe the purposes for which CPNI will be used, and inform the customer
of the right to disapprove those uses, and deny or withdraw access to CPNI
at any time;
(B)
state that the customer has a right, and the carrier a
duty, under federal law, to protect the confidentiality of CPNI; and
(C)
advise the customer of the precise steps necessary for
granting or denying access to CPNI, and clearly state that a denial of approval
will not affect the provision of any services to which the customer subscribes.
(2)
Other notification requirements. A CTU shall adhere to
the following notification specifications:
(A)
If any notification is translated into another language,
then all portions of the notification must be translated into that language.
(B)
A utility may state in the notification that the customer's
approval to use customer-specific CPNI may enhance the CTU's ability to offer
products and services tailored to the customer's needs.
(C)
A CTU may not include in the notification any statement
attempting to encourage a customer to freeze third party access to customer-specific
CPNI.
(D)
A CTU's solicitation for approval must be proximate in
time to the notification of a customer's CPNI rights, and if written, placed
in the same envelope in which notification is mailed.
(3)
Staff review of the notification. The notification shall
be reviewed by the commission's staff before it is distributed. The staff
shall notify the CTU within ten days of submission whether the proposed notification
may be distributed or must be modified and distributed, and, if so, specifically
describe any modifications that staff requires.
(g)
Safeguards. Prior to solicitation of a customer's approval,
a CTU must establish the following with respect to safeguard provisions for
the use of customer-specific CPNI:
(1)
CTUs must implement a system by which the status of a customer's
CPNI approval can be clearly established prior to use of the CPNI.
(2)
CTUs must train their personnel as to when they are and
are not authorized to use CPNI, and carriers must have an express disciplinary
process in place to reprimand personnel who violate CPNI requirements and
procedures, as outlined in this section.
(3)
CTUs must maintain a record, electronically or in some
other manner, of their sales and marketing campaigns that use CPNI. The record
must include a description of each campaign, the specific CPNI that was used
in the campaign, the date and purpose of the campaign, and what products or
services were offered as part of the campaign. The CTUs must retain the record
for a minimum of one year.
(4)
CTUs must establish a supervisory review process regarding
telecommunications utility compliance with the provisions of the subsection
for outbound marketing situations and maintain records of CTU compliance for
a minimum period of one year. Specifically, sales personnel must obtain supervisory
approval of any proposed outbound marketing request.
(5)
A CTU must have an officer, as an agent of the CTU, sign
a compliance certificate on an annual basis stating that the agent has personal
knowledge that the operating procedure established by the carrier is in compliance
with the commission's CPNI rules. A statement explaining how the CTU is in
compliance with the provisions in this subsection must accompany the certificate.
(h)
Aggregate CPNI. If a CTU compiles and uses aggregate CPNI
for marketing purposes or provides aggregate CPNI to any business associated
with the CTU for marketing purposes, it must also provide aggregate CPNI to
any third party upon request, except when a local exchange company uses aggregate
information only to tailor its service offering to better suit the needs of
its existing customers. A CTU must offer to provide aggregate CPNI under the
same terms and conditions and at the same price as it is made available to
all businesses affiliated with the CTU and to utility personnel marketing
supplemental services, provided that the third party must specify the type
and scope of the aggregate CPNI requested. A CTU must, upon request, provide
such aggregate CPNI to a third party under any other alternative terms, conditions,
or prices that are just and reasonable under the circumstances and that are
not unreasonably preferential, prejudicial or discriminatory.
(i)
Subscriber list information. A CTU that provides telephone
exchange service shall provide subscriber list information gathered in its
capacity as a provider of such service on a timely and unbundled basis, under
nondiscriminatory and reasonable rates, terms, and conditions, to any person
upon request, to the extent that such person uses the subscriber list information
solely for publishing directories in any format.
(j)
Definition. The term "subscriber list information," when
used in subsection (i) of this section, means any information:
(1)
identifying the listed names of subscribers of a CTU and
such subscribers' telephone numbers, addresses, or primary advertising classifications
(as such classifications are assigned at the time of the establishment of
such service), or any combination of such listed names, numbers, addresses,
or classifications; and
(2)
that the CTU or an affiliate has published, caused to be
published, or accepted for publication in any directory format.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed with the Office of
the Secretary of State on February 6, 2002.
TRD-200200799
Rhonda Dempsey
Rules Coordinator
Public Utility Commission of Texas
Effective date: February 26, 2002
Proposal publication date: October 26, 2001
For further information, please call: (512) 936-7308