PERMANENT RULES
COMMISSION
STATUTORY OR OTHER AUTHORITY: The Washington Utilities and Transportation Commission takes this action under Notice No. WSR 98-18-107, filed with the code reviser on September 2, 1998. The commission brings this proceeding pursuant to RCW 80.01.040.
STATEMENT OF COMPLIANCE: This proceeding complies with the Open Public Meetings Act (chapter 42.30 RCW), the Administrative Procedure Act (chapter 34.05 RCW), the State Register Act (chapter 34.08 RCW), the State Environmental Policy Act of 1971 (chapter 34.21C RCW), and the Regulatory Fairness Act (chapter 19.85 RCW).
DATE OF ADOPTION: The commission adopted this rule on October 28, 1998.
CONCISE STATEMENT OF PURPOSE AND EFFECT OF THE RULE: The proposal would make Washington state rules consistent with federal rules, as adopted by the FCC on February 19, 1998. These rules maintain the ability of telecommunications customers to protect the privacy of their personal information in an increasingly competitive telecommunications market. The rules place limits on company use of CPNI, and on the sharing of it with affiliates. The rules establish, under certain detailed conditions, the need for companies to obtain customer approval for use of the customer's CPNI, how such approval may be obtained, and what is required in company notices used to obtain customer approval.
WAC 480-120-144 protects the privacy of customers who subscribe to unlisted or nonpublished telephone numbers. It prohibits telephone companies from using their list of customers with unlisted numbers for telemarketing, unless the company has notified the customers at least annually of their right to be removed from such a solicitation list.
New section WAC 480-120-151 defines the conditions under which a telecommunications carrier may use a customer's proprietary network information without explicit approval, and when approval must be obtained prior to use.
New section WAC 480-120-152 defines the customer notification requirements a telecommunications carrier must meet when notifying customers of their rights regarding control of the use of CPNI, and defines acceptable practices for obtaining customer approval.
New section WAC 480-120-153 defines requirements for personnel training, a supervisory review process, and delegation of responsibility to a corporate officer to assure safeguards on the use of customer proprietary network information.
New section WAC 480-120-154 contains definitions relating to CPNI.
REFERENCE TO AFFECTED RULES: This rule making amends the following section of the Washington Administrative Code: None.
PREPROPOSAL STATEMENT OF INQUIRY AND ACTIONS THEREUNDER: The commission filed a Preproposal Statement of Inquiry (CR-101) on November 21, 1997, at WSR 97-23-087.
ADDITIONAL NOTICE AND ACTIVITY PURSUANT TO PREPROPOSAL STATEMENT: The preproposal statement advised interested persons that the commission was considering entering a rule making on customer proprietary network information (CPNI) in commercial telecommunications, to consider possible amendment of commission rule on the topics of privacy protections and implementation of restrictions on the use of CPNI. The commission also informed persons of the inquiry into this matter by providing notice of the subject and the CR-101 to all persons on the commission's list of persons requesting such information pursuant to RCW 34.05.320(3).
On January 21, 1998, the commission staff, Public Counsel and representatives of TRACER, WITA, GTE, AT&T, MCI, and US WEST met in a workshop to address the potential rule making, comments that some of the participants had filed, and activities at the federal level related to CPNI and privacy. At that time, the Federal Communications Commission (FCC) was expected to serve an order clarifying Section 222 of the Telecommunications Act of 1996, concerning privacy issues and the use of CPN, by the end of the first quarter of 1998.
By consensus, the parties agreed to set aside the rule process until federal standards were ordered. The FCC served this order on February 26, 1998, (FCC Second Report and Order CC No. 96-115). On April 13, 1998, the commission gave interested persons notice of an opportunity to file comments on a staff recommendation to accept for state adoption the FCC language as ordered in the federal rule. Interested persons, including the American Civil Liberties Union, filed comments on May 20, 1998.
NOTICE OF PROPOSED RULE MAKING: The commission filed a notice of Proposed Rule Making (CR-102) on September 2, 1998, at WSR 98-18-107. The commission scheduled this matter for oral comment and adoption under Notice No. WSR 98-18-107 at 9:00 a.m., Wednesday, October 28, 1998, in the Commission's Hearing Room, Second Floor, Chandler Plaza Building, 1300 South Evergreen Park Drive S.W., Olympia, WA. The notice provided interested persons the opportunity to submit written comments to the commission.
COMMENTERS (WRITTEN COMMENTS): The commission received written comments from US WEST, GTE, SPRINT, Public Counsel, GST TELECOM, Washington Independent Telephone Association (WITA), AT&T, and CENTURY TELEPHONE ENTERPRISES.
RULE-MAKING HEARING: The proposal was considered for adoption, pursuant to the notice, in a rule-making hearing scheduled during the commission's regularly scheduled open public meeting on October 28, 1998, before Commission Chair Anne Levinson, Commissioner Richard Hemstad, and Commissioner William R. Gillis. The commission heard oral comments from Vincent Pollina, representing commission staff, Teresa Jensen, representing US WEST, Terry Vann, representing WITA, and Matt Steurwalt, representing Public Counsel.
COMMISSION ACTION: After considering all of the information regarding this proposal, the commission adopted the proposed rules, with the changes described below.
CHANGES FROM PROPOSAL: The commission adopted the proposal with the following changes from the text noticed at WSR 98-18-107.
Consistent with recommendations from US WEST, GTE, Century, GST, and AT&T, the commission deleted proposed subsections (1) and (3) from WAC 480-120-153. The FCC has suspended enforcement of the corresponding federal requirements for software flagging and electronic monitoring, and the commission believes that it is inappropriate to adopt the provisions for state action until they are effective at the federal level.
Consistent with recommendations of AT&T, the commission added a provision in WAC 480-120-152 (6)(b)(vi) to require full translations of notice content if any portion is translated into a foreign language. This provision had been omitted in error from the proposed rule, was added to conform to the federal rule, and is within the scope of the rule-making proceeding as noticed.
Consistent with the recommendation of Public Counsel, the commission added a provision in WAC 480-120-152 (6)(b)(i) noting that customer information is protected by state law as well as federal law. This provision is consistent with the fact that the state is, by this rule making, adopting privacy rules and is within the scope of the rule-making proceeding as noticed.
Consistent with the recommendation of GTE, the commission modified the definition of CPNI in WAC 480-120-154(4) to conform to the definition in federal rules. This change corrected a typographical error in the proposed rule.
The commission also adopted changes of a typographical nature, including correction of subsection numbering in WAC 480-120-152(6), correction of a reference in WAC 480-120-151(2) from "(c)" to "(3).", correction of a typographical error in WAC 480-120-151 (2)(a), and correction of a reference in WAC 480-120-154 (stating the sections to which the definitions in WAC 480-120-154 apply).
REASONS FOR REJECTING RECOMMENDATIONS: With the exception of Public Counsel, the commenters generally recommended that the commission not adopt rules on CPNI and instead leave this issue to federal regulators. The commission rejected this recommendation, because it would not have provided consumers with adequate protection in the face of increasing competition.
Public Counsel recommended that the commission apply the notice requirement of WAC 480-120-144 to all customers, rather than just to customers who have subscribed to a privacy service. The commission rejected this recommendation, because it would create a conflict with the more general rules. Customers who do not pay for a private number can reasonably expect to receive telemarketing calls, and existing law already allows them to tell the telemarketer (including their own phone company) not to call them.
US WEST recommended that the notice requirement codified in WAC 480-120-144 be repealed, because it is an unconstitutional taking of the property of the telephone companies. The commission rejected this recommendation, because it would eliminate an existing protection to the privacy of consumers. The commission is not persuaded that this provision, which merely requires notice to customers of their legal rights, is illegal or unconstitutional.
GTE recommended that the commission delete wireless carriers from the definition of "telecommunications carrier" in WAC 480-120-154(9), because the commission lacks authority to regulate wireless carriers. While it is correct that, with some exceptions, the commission does not have authority to regulate the provision of wireless service, wireless carriers are nonetheless telecommunications carriers and should be included in the definition. Doing so does not make them subject to regulation by the commission.
PARTIAL ADOPTION; REFILING: In reviewing the materials in this file for filing adopted rules with the code reviser, the commission discovered an administrative oversight. The revision to WAC 480-120-139, deleting subsection (5), was described in the CR-102 and was discussed as a central element of the proceeding, but through inadvertence was not filed with the code reviser. Consequently, it cannot be formally adopted with the filing of this order. The commission will take the following steps to correct this oversight.
First, the commission will proceed with the adoption of the other WAC sections as specified in this order. Second, the commission will immediately file a revised CR-102 to start the process of adopting the amendment to that section. Third, in the interim period, the newly adopted rules will be considered as clarifying, expanding upon, and as necessary superseding the text to be deleted, pursuant to usual rules of statutory construction.
STATEMENT OF ACTION; STATEMENT OF EFFECTIVE DATE: In reviewing the entire record, the commission determines that WAC 480-120-144, 480-120-151, 480-120-152, and 480-120-153 should be adopted to read as set forth in Appendix A, as rules of the Washington Utilities and Transportation Commission, to take effect pursuant to RCW 34.05.380(2) on the thirty-first day after filing with the code reviser.
Number of Sections Adopted in Order to Comply with Federal Statute: New 5, amended 0, repealed 0; Federal Rules or Standards: New 0, amended 0, repealed 0; or Recently Enacted State Statutes: New 0, amended 0, repealed 0.
Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, amended 0, repealed 0.
Number of Sections Adopted on the Agency's own Initiative: New 0, amended 0, repealed 0.
Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, amended 0, repealed 0.
Number of Sections Adopted using Negotiated Rule Making: New 0, amended 0,
repealed 0; Pilot Rule Making: New 0, amended 0, repealed 0; or Other Alternative Rule
Making: New 0, amended 0, repealed 0.
1. WAC 480-120-144, 480-120-151, 480-120-152, 480-120-153, and 480-120-154 are adopted to read as set forth in Appendix A, as rules of the Washington Utilities and Transportation Commission, to take effect on the thirty-first day after the date of filing with the code reviser pursuant to RCW 34.05.380(2).
2. This order and the rule set out below, after being recorded in the register of the Washington Utilities and Transportation Commission, shall be forwarded to the code reviser for filing pursuant to chapters 80.01 and 34.05 RCW and chapter 1-21 WAC.
DATED at Olympia, Washington, this 2nd day of February, 1999.
Washington Utilities and Transportation Commission
Anne Levinson, Chair
Richard Hemstad, Commissioner
William R. Gillis, Commissioner
OTS-2411.2
NEW SECTION
WAC 480-120-144
Use of privacy listings for telephone solicitation.
A telecommunications company may not make telephone solicitation or telemarketing calls using its list of customers with nonpublished or unlisted numbers unless it has notified each such customer at least once in the past year that the company makes such calls to its customers with nonpublished or unlisted numbers and that the customer has a right to request that the company make no such calls.
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(1) Any telecommunications carrier may use, disclose, or permit access to CPNI for the purpose of providing or marketing service offerings among the categories of service (i.e., local, interexchange, and CMRS) already subscribed to by the customer from the same carrier, without customer approval.
(a) If a telecommunications carrier provides different categories of service, and a customer subscribes to more than one category of service offered by the carrier, the carrier is permitted to share CPNI among the carrier's affiliated entities that provide a service offering to the customer.
(b) If a telecommunications carrier provides different categories of service, but a customer does not subscribe to more than one offering by the carrier, the carrier is not permitted to share CPNI among the carrier's affiliated entities.
(2) A telecommunications carrier may not use, disclose or permit access to CPNI to market to a customer service offerings that are within a category of service to which the customer does not already subscribe to from that carrier, unless the carrier has customer approval to do so, except as described in subsection (3) of this section.
(a) A telecommunications carrier may not use, disclose, or permit access to CPNI derived from its provision of local service, interexchange service, or CMRS, without customer approval, for the provision of customer premises equipment and information services, including call answering, voice mail or messaging, voice storage and retrieval services, fax store and forward, and Internet access services. For example, a carrier may not use its local exchange service CPNI to identify customers for the purpose of marketing to those customers related CPE or voice mail service.
(b) A telecommunications carrier may not use, disclose, or permit access to CPNI to identify or track customers who call competing service providers. For example, a local exchange carrier may not use local service CPNI to track all customers who call local service competitors.
(c) A telecommunications carrier may not use, disclose, or permit access to a former customer's CPNI to regain the business of the customer who has switched to another service provider.
(3) A telecommunications carrier may use, disclose, or permit access to CPNI, without customer approval, as described in this subsection.
(a) A telecommunications carrier may use, disclose, or permit access to CPNI, without customer approval, in its provision of inside wiring installation, maintenance, and repair services.
(b) CMRS (wireless telecommunications service) providers may use, disclose, or permit access to CPNI for the purpose of conducting research on the health effects of CMRS.
(c) Local exchange companies and CMRS providers may use CPNI, without customer approval, to market services formerly known as adjunct-to-basic services, such as, but not limited to, speed dialing, computer-provided directory assistance, call monitoring, call tracing, call blocking, call return, repeat dialing, call tracking, call waiting, caller I.D., call forwarding, and certain centrex features.
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(1) A telecommunications carrier must obtain customer approval to use, disclose, or permit access to CPNI to market a customer service to which the customer does not already subscribe from that carrier.
(2) A telecommunications carrier may obtain approval through written, oral or electronic methods.
(3) A telecommunications carrier relying on oral approval must bear the burden of demonstrating that such approval has been given in compliance with the commission's rules.
(4) Approval obtained by a telecommunications carrier for the use of CPNI outside of the customer's total service relationship with the carrier must remain in effect until the customer revokes or limits such approval, so long as the carrier maintains the records of customer notification and approval required in this rule.
(5) A telecommunications carrier must maintain records of notification and approval, whether oral, written or electronic, for at least one year.
(6) Prior to any solicitation for customer approval, a telecommunications carrier must provide a one-time notification to the customer of the customer's right to restrict use of, disclosure of, and access to that customer's CPNI.
(a) A telecommunications carrier may provide notification through oral or written methods.
(b) Customer notification must provide sufficient information to enable the customer to make an informed decision as to whether to permit a carrier to use, disclose, or permit access to, the customer's CPNI.
(i) The notification must state that the customer has a right, and the carrier a duty, under federal and state law, to protect the confidentiality of CPNI.
(ii) The notification must specify the types of information that constitute CPNI and the specific entities that will receive CPNI, describe the purposes for which CPNI will be used, and inform the customer of his or her right to disapprove those uses, and deny or withdraw access to CPNI at any time.
(iii) The notification must advise the customer of the precise steps the customer must take in order to grant or deny access to CPNI, and must clearly state that a denial of approval will not affect the provision of any services to which the customer subscribes.
(iv) The notification must be comprehensible and must not be misleading.
(v) If written notification is provided, the notice must be clearly legible, use sufficiently large type, and be placed so as to be readily apparent to a customer.
(vi) If any portion of a notification is translated into another language, then all portions of the notification must be translated into that language.
(vii) A carrier may state in the notification that the customer's approval to use CPNI may enhance the carrier's ability to offer products and services tailored to the customer's needs. A carrier also may state in the notification that the customer upon affirmative written request may compel the carrier to disclose CPNI to any person.
(viii) A carrier may not include in the notification any statement attempting to encourage a customer to freeze third party access to CPNI.
(ix) The notification must state that any approval, or denial of approval for the use of CPNI outside of the service to which the customer already subscribes to from that carrier is valid until the customer affirmatively revokes or limits the approval or denial.
(7) A telecommunications carrier's solicitation for approval must be proximate to the notification of a customer's CPNI rights.
(8) A telecommunications carrier's solicitation for approval, if written, must not be a document separate from the notification, even if both documents are included within the same envelope or package.
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(1) Telecommunications carriers must train all personnel who have access to CPNI as to when they are and are not authorized to use CPNI, and carriers must implement an express disciplinary process to deal with violations of the requirement.
(2) Telecommunications carriers must establish a supervisory review process regarding carrier compliance with rules governing outbound marketing situations and must maintain records of carrier compliance for at least one year. Specifically, sales personnel must obtain supervisory approval of any proposed outbound marketing request.
(3) A telecommunications carrier must have a corporate officer, as an agent of the carrier, sign a compliance certificate on an annual basis that the officer has personal knowledge that the carrier is in compliance with the rules of this subpart. A statement explaining how the carrier is in compliance with the rules in this subpart must accompany the certificate.
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For purposes of WAC 480-120-151 through 480-120-154, terms have the following meaning:
(1) Affiliate. An affiliate is an entity that directly or indirectly owns or controls, is owned or controlled by, or is under common ownership or control with, another entity.
(2) Customer. A customer of a telecommunications carrier is a person or entity to which the telecommunications carrier is currently providing service.
(3) Commercial mobile radio service (CMRS). Commercial mobile radio service means any mobile (wireless) telecommunications service that is provided for profit that makes interconnected service available to the public or to such classes of eligible users as to be effectively available to a substantial portion of the public.
(4) Customer proprietary network information (CPNI). Customer proprietary network information (CPNI) is:
(a) Information that relates to the quantity, technical configuration, type, destination, and amount of use of a telecommunications service subscribed to by a customer of a telecommunications carrier, and that is made available to the carrier by the customer solely by virtue of the customer-carrier relationship; and
(b) Information contained in a customer’s bill pertaining to telephone exchange service or telephone toll service received by a customer of a carrier. Customer proprietary network information does not include subscriber list information.
(5) Customer premises equipment (CPE). Customer premises equipment (CPE) is equipment employed on the premises of a person (other than a carrier) to originate, route, or terminate telecommunications.
(6) Information service. Information service is the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications, and includes electronic publishing, but does not include any use of any such capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service.
(7) Local exchange carrier (LEC). A local exchange carrier (LEC) is any person that is engaged in the provision of telephone exchange service or exchange access. For purposes of these rules, the term does not include a person insofar as such person is engaged in the provision of commercial mobile service under 47 U.S.C. 332(c).
(8) Subscriber list information (SLI). Subscriber list information (SLI) is any information:
(a) Identifying the listed names of subscribers of a carrier and those subscribers’ telephone numbers, addresses, or primary advertising classifications (as such classifications are assigned when service is established), or any combination of listed names, numbers, addresses, or classifications; and
(b) That the carrier or an affiliate has published, caused to be published, or accepted for publication in any directory format.
(9) Telecommunications carrier. A telecommunications carrier is any provider of telecommunications services, except that such term does not include aggregators of telecommunications services (as defined in 47 U.S.C. 226 (a)(2)). The definition of telecommunications carrier for purposes of these rules does not include CMRS providers, except as a substitute for wire line telecommunications in locations where wire line services are not available.
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