[Federal Register: September 15, 2003 (Volume 68, Number 178)]
[Rules and Regulations]
[Page 53891-53895]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15se03-10]
=======================================================================
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 64
[WT Docket No. 98-100; FCC 03-203]
Forbearance From Applying Provisions of TOCSIA to CMRS Carriers
AGENCY: Federal Communications Commission.
ACTION: Final rule; clarification.
-----------------------------------------------------------------------
SUMMARY: In this document we decline, with two limited exceptions, to
forbear any further from applying provisions of the Telephone Operator
Consumer Services Improvement Act (TOCSIA) to commercial mobile radio
services (CMRS) aggregators and operator service providers (OSPs). In
this Second Report and Order, we decide to forbear from applying two
additional TOCSIA provisions: the requirement that CMRS OSPs regularly
publish changes in their operator services, and the requirement that
CMRS OSPs and aggregators route emergency calls. We conclude, based on
the record in this proceeding, that the remaining TOCSIA provisions and
its implementing regulations that apply to CMRS carriers continue to be
in the public interest.
DATES: Effective November 14, 2003.
[[Page 53892]]
FOR FURTHER INFORMATION CONTACT: Wilbert E. Nixon, Jr., Policy and
Rules Branch, Commercial Wireless Division, Wireless Telecommunications
Bureau, at (202) 418-7240.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Second
Report and Order, in WT Docket No. 98-100, FCC 03-203, adopted August
7, 2003, and released August 20, 2003. The full text of the Second
Report and Order is available for public inspection and copying during
regular business hours at the FCC Reference Information Center, 445
12th St., SW., Room CY-A257, Washington, DC 20554. The complete text
may be purchased from the Commission's duplicating contractor: Qualex
International, 445 12th Street, SW., Room CY-B402, Washington, DC
20554, telephone (202) 863-2893, facsimile (202) 863-2898, or via e-
mail at qualexint@aol.com.
Summary of Second Report and Order
I. Background.
A. PCIA Forbearance Order and Notice
1. In the PCIA Forbearance Order and Notice, 13 FCC Rcd 16857
(1998), recon. denied, 64 FR 61022 (Nov. 9, 1999), the Commission
addressed a forbearance request by the Broadband Personal
Communications Services Alliance of the Personal Communications
Industry Association (PCIA) and decided, inter alia, to forbear from
two provisions of TOCSIA for all CMRS OSPs. One of the TOCSIA-related
provisions from which the Commission decided to forbear was the
``unblocked access'' provision, which allows consumers access to the
OSP of their choice. The Commission also forbore from requiring CMRS
OSPs to file informational tariffs. However, the Commission concluded
that the record was insufficient to support forbearance from the other
requirements of TOCSIA. Moreover, with respect to TOCSIA's disclosure
requirements, the Commission declined to forbear because of the ``vital
information that disclosure provides to consumers'' and ``because there
is no record evidence that these requirements impose an undue burden *
* *'' Also in the PCIA Forbearance Order and Notice, the Commission
affirmed on reconsideration the GTE Declaratory Ruling. Concurrently
with the release of the PCIA Forbearance Order, the Commission issued
the Notice, in which the Commission, inter alia, sought specific
information relevant to determining whether, and in what respects, the
Commission should forbear from applying or modifying additional TOCSIA
requirements in the CMRS context. Although the PCIA Forbearance Order
and the Notice are in the same document, we may refer to the PCIA
Forbearance Order and the Notice as if they were separate documents.
II. Discussion
2. The Commission declines, with two limited exceptions, to forbear
from applying TOCSIA provisions to CMRS aggregators and OSPs. The
Commission generally concludes that TOCSIA and its implementing
regulations continue to be in the public interest in that its
provisions ensure that transient users of mobile telephones designed
for public use enjoy the same benefits they would have if they were
using their own private mobile telephones.
3. The Commission forbears, however, from applying two TOCSIA
provisions to CMRS aggregators and OSPs where the risks of conflicting
mandates compels forbearance and to ensure clarity for public safety.
Specifically, the Commission forbears from requiring CMRS OSPs to
regularly publish and make available at no cost to inquiring consumers
written materials that describe any recent changes in the operator's
services and in the choices available to consumers. Also, the
Commission forbears from applying emergency call routing provisions of
TOCSIA to CMRS aggregators and OSPs.
A. Aggregator Disclosure
4. Background. Under Commission rules, CMRS aggregators are
required to post the following information on or near the telephone
instrument, in plain view of consumers: (a) The name, address, and
toll-free telephone number of the OSP presubscribed to the telephone;
(b) in the case of a pay telephone, the local coin rate for the pay
telephone location; and (c) the name and address of the Commission.
5. Discussion. The Commission declines to adopt its tentative
conclusion to forbear from requiring aggregators to ``post'' disclosure
information ``on or near the telephone instrument,'' in the CMRS
context. The Commission recognizes that, due to the diminutive size of
many mobile phones today, the requisite legible disclosure language may
not practically fit ``on'' the mobile phone. The Commission finds that
forbearance in this case is unnecessary, however, because it is
entirely practicable to post disclosure information ``near'' the mobile
phone. In the mobile phone context, aggregators will be in compliance
with TOCSIA if they post the necessary information ``near'' the mobile
phone so that it is received by and can be kept by end-user customers.
B. OSP Oversight of Aggregators
6. Background. Responsibility for enforcement of the aggregator
disclosure requirements is, in addition to being placed on the
aggregator as described above, placed upon the OSP used by the
aggregator. Under TOCSIA and our implementing regulations, an OSP is
obligated to ensure, by contract or tariff, that each aggregator for
which such provider is the presubscribed provider of operator services
is in compliance with the aggregator disclosure requirements.
7. Discussion. Consistent with its tentative conclusion, the
Commission finds that the OSP oversight requirement is a necessary
business tool to ensure that aggregators comply with their TOCSIA
obligations. In situations where, for example, the CMRS carrier agrees
to a contractual arrangement with an aggregator whereby it directly
imposes charges upon members of the public, the Commission finds no
basis for justifying forbearance from TOCSIA. Although the potential
for abuse has been claimed to come from the aggregator because it is
the aggregator that may most effectively take advantage of the
consumer, in this particular context involving the existence of a
contractual arrangement, the CMRS OSP may wield an important business
influence over the aggregator. Similar to the wireline context, the
Commission cannot forbear under the first prong of section 10 of the
Communications Act of 1934 when this rule requiring such a business
influence may serve to prevent potential abuses before they occur. In
addition, the Commission does not believe this business function to be
insignificant to protecting the consumer under the second prong of the
section 10 forbearance standard.
8. In the absence of a contract or tariff with an aggregator to
provide OSP services or knowledge of the aggregator's activities, the
OSP is not responsible for ensuring aggregator compliance. Section
226(b)(1)(D) of the Communications Act of 1934 requires that each
provider of operator services shall ``ensure, by contract or tariff,
that each aggregator for which such provider is a presubscribed
provider of operator services is in compliance'' with the aggregator
service provisions of TOCSIA. This provision presupposes the existence
of a sufficient nexus between aggregator and OSP such that a contract
or tariff would be the appropriate mechanism on which to base the
oversight requirement. To the extent that a CMRS OSP has a contractual
relationship with an aggregator of its service, the CMRS OSP
[[Page 53893]]
must have a provision in the relevant contract requiring aggregator
compliance with TOCSIA and the Commission's related rules. If a CMRS
OSP lacks a contractual relationship with an aggregator or has no
knowledge of the aggregator, the statutory text does not require such
oversight by the CMRS OSP. Accordingly, PCIA's and AT&T Wireless'
concerns that it would be impossible for a CMRS provider serving a
mobile public phone roamer to enforce compliance by the owner
aggregator of the mobile public phone because the CMRS provider will
have no contractual or tariff relationship with the aggregator, are
moot.
C. OSP Identification and Rate Disclosure
9. Background. TOCSIA and Commission regulations also impose a
number of requirements upon CMRS OSPs. OSPs must identify themselves,
audibly and distinctly, to the consumer at the beginning of each
telephone call and before the consumer incurs any charge for the call,
a practice referred to as ``call branding.'' OSPs must also permit the
consumer to terminate a telephone call at no charge before the call is
connected. They must also disclose immediately to the consumer, upon
request and at no charge to the consumer, a quotation of their rates or
charges for the call, the methods by which such rates or charges will
be collected, and the method by which complaints concerning such rates,
charges, or collection practices will be resolved. Finally, the
Commission recently added a requirement that OSPs must audibly disclose
to consumers how to obtain the price of a call before it is connected.
10. Discussion. The Commission declines to forbear from applying
these TOCSIA provisions against CMRS aggregators and OSPs. In the
Notice, the Commission asked questions designed to elicit specific
information relevant to determining whether and in what respects the
Commission could forbear from applying these provisions to CMRS
providers. The Commission finds that the record does not justify
deviating from the Commission's ruling in the PCIA Forbearance Order
that these TOCSIA provisions should apply to the actions of CMRS
providers.
11. The Commission also finds that the record does not support the
contention that requiring CMRS carriers to brand calls would cause
customer confusion or impose unacceptably high costs on carriers. PCIA
contends that branding can cause customer confusion because CMRS
providers cannot always distinguish between calls from mobile phones
designed for public use and other calls. GTE similarly contends that,
absent an ability to identify a call as originating from an aggregator,
CMRS carriers would have to brand every wireless call in order to
comply with TOCSIA requirements. The Commission is not persuaded by
these arguments. First, while the OSP branding requirement of TOCSIA
applies to calls initiated from aggregator locations that involve
automatic or live assistance to the consumer to arrange for billing or
call completion, it does not apply to calls that are automatically
completed with billing to the telephone from which the call originated,
or to calls that are completed through an access code used by the
consumer, with billing to an account previously established with the
carrier by the consumer. Accordingly, TOCSIA's branding requirement
does not apply to the vast majority of wireless calls that consumers
make within their home calling areas, which are typically automatically
completed and billed to the caller's telephone.
12. Second, the Commission is not persuaded by PCIA's argument that
the branding requirement will cause confusion or be unduly burdensome
in the roaming context. In most cases, roaming is accomplished through
automatic roaming arrangements that provide for automated completion
and direct billing of calls. Thus, as in the case of automatically
placed and billed calls within the caller's home area, automatic
roaming calls are not subject to TOCSIA. On the other hand, the
branding requirement does potentially apply to manual roaming calls
made from aggregator phones, because such calls are not automatically
billed to the originating number but are typically paid for by credit
card. PCIA asserts that, in order to comply with this requirement, CMRS
OSPs would have to brand all roaming calls that are not billed to the
originating number, without knowing whether the caller is using an
aggregator phone. The Commission does not believe this to be a
significant burden for several reasons. First, because manual roaming
calls make up a small percentage of all wireless calls, the number of
calls that will actually require branding is quite small. Further, the
commenters fail to explain how branding all manual roaming calls would
result in significant costs to carriers or customer confusion. Because
manual roaming calls require preliminary communication between the OSP
and the caller to arrange for credit card billing, CMRS OSPs are likely
to identify themselves and explain their billing requirements to end-
user customers in any event, and the Commission believes that such
identifications and disclosures can, with minimal modifications, be
made to comply with TOCSIA. In any case, the Commission believes that
the benefits associated with requiring compliance with TOCSIA when
manual roaming calls are made from aggregator phones outweigh the
potential costs that commenters have suggested would be associated with
ensuring such compliance. Moreover, if carriers seek to avoid
unnecessary branding of manual roaming calls from non-aggregator
phones, they are free to devise and implement methods to distinguish
aggregator from non-aggregator calls.
13. Finally, GTE argues that the rate disclosure requirement is of
little use because the rates charged for wireless public phones are
typically set by aggregators and that the OSP rates disclosed by the
OSP would be only a portion of the overall rate for the call. GTE is
mistaken about the rate disclosure requirement. The OSP's obligation is
merely to inform the consumer of the rates it bills for and how to
obtain the total cost of the call, including any aggregator surcharge.
The OSP is not obliged to guess the aggregator's rate if not billed for
by the OSP. With this important rate information from the aggregator
and the OSP, the consumer can make an informed decision as to whether
to place the call.
D. Call Splashing
14. Background. TOCSIA and the implementing regulations prohibit
OSPs from engaging in ``call splashing'' or billing for a call that
does not reflect the originating location of the call without the
consumer's informed consent. In the Notice, the Commission sought
detailed information on the costs to CMRS OSPs of complying with the
call splashing prohibition for calls made through aggregators and, to
the extent that CMRS providers cannot distinguish between customers of
aggregators and other users, the costs of complying with this
prohibition on other calls as well.
15. Discussion. The Commission declines to forbear from applying
the call splashing provisions of TOCSIA against OSPs. The Commission
finds that the record does not justify deviating from the Commission's
ruling in the PCIA Forbearance Order that these TOCSIA provisions apply
to the actions of CMRS providers. In response to the Commission's
request for comment, PCIA and AT&T Wireless submitted no cost
estimates, and simply argued that because of flat toll pricing, call
splashing, even if it occurred, would not
[[Page 53894]]
adversely affect charges to consumers and that there is no evidence of
complaints that such a practice has been a problem in the CMRS context.
The Commission rejects PCIA's and AT&T's contention that flat toll
pricing has eliminated all possible adverse effects of call splashing.
Even today, there are many wireless calling plans that do not include
free long distance service and therefore providers will charge distance
sensitive rates in some instances. Moreover, the Commission believes
that any costs of CMRS OSPs meeting these requirements are minimal.
E. OSP Publication of Changes in Services
16. Background. Pursuant to the relevant provision of TOCSIA, the
Commission has required OSPs to regularly publish and make available at
no cost to inquiring consumers written materials that describe any
recent changes in operator services and in the choices available to
consumers in that market.
17. Discussion. The Commission forbears from applying the OSP
publication provision of TOCSIA against CMRS OSPs. In this instance,
the Commission finds that enforcement of these TOCSIA requirements is
not necessary to ensure that charges and practices are just and
reasonable or to protect consumers. The Commission also finds that
forbearance from applying these requirements is in the public interest.
18. As service providers not bound by rate regulation or
publication requirements, CMRS carriers are generally not required to
publish their rates and contract terms even though many of them do in
order to remain competitive. Singling out particular CMRS services--
such as CMRS OSPs--for disparate treatment does not serve the public
interest. Fluid and rapid price competition has long typified wireless
services. This is especially true when the call branding and rate
disclosure requirements of TOCSIA ensure that consumers of CMRS OSP
services are given the CMRS OSP identification, terms and rate
information they need to make an informed decision on whether to place
a call on a CMRS aggregator phone. The Commission concludes that these
call branding and rate disclosure requirements, which require CMRS OSPs
to provide their identity, and rate or charge information, is
sufficient to ensure just and reasonable charges and practices from
CMRS OSPs. In that regard, the Commission also finds that enforcement
of the OSP publication provision is not necessary for the protection of
consumers precisely because of the unique incentives CMRS OSPs have to
advertise their services and make information important to consumers
available as a matter of sound business practice. In addition, the
Commission finds that there are important public interest benefits
associated with reducing regulatory compliance costs (i.e., those costs
associated with the creation of the required reports, databases,
personnel training, mailing, etc.), in light of the fact that those
cost reductions can be translated into lower prices to consumers.
Finally, however, the Commission encourages CMRS OSPs to provide
voluntarily to inquiring consumers information that describes recent
changes in operator services and in the choices available to consumers
in the CMRS OSP market. The Commission notes that CMRS OSPs may make
this information available to consumers by, for example, updating
information on their websites.
F. Routing of Emergency Calls
19. Background. TOCSIA requires that the Commission ``establish
minimum standards for providers of operator services and aggregators to
use in the routing and handling of emergency telephone calls.'' Under
our rules implementing this provision, OSPs and aggregators are
required to ensure immediate connection of emergency telephone calls to
the appropriate emergency service of the reported location of the
emergency, if known, and if not known, of the originating location of
the call.
20. Under the Commission's rules, certain mobile wireless licensees
are required to implement basic 911 and enhanced 911 (E911) services.
Cellular licensees, broadband Personal Communications Service (PCS)
licensees, and certain Specialized Mobile Radio (SMR) licensees,
collectively ``covered carriers,'' are required to meet basic and
enhanced 911 service requirements for completing emergency calls,
including forwarding all 911 calls without delay and relaying a
caller's Automatic Number Identification (ANI) and Automatic Location
Information (ALI) to the appropriate Public Safety Answering Point
(PSAP).
21. Discussion. The Commission forbears from applying the emergency
call routing provision of TOCSIA to CMRS aggregators and OSPs because
the current E911 regulatory regime, which applies to the vast majority
of CMRS OSPs, is clearer and more comprehensive than the TOCSIA
requirements to protect consumers. The E911 rules make more
comprehensive emergency service requirements applicable to ``covered
CMRS'' carriers and the Commission sees no reason to also apply the
duplicative and potentially confusing and conflicting emergency call
routing requirements that are a part of TOCSIA. In applying the
forbearance standard, the Commission first finds that enforcement of
the emergency call routing provision is not necessary to ensure just
and reasonable charges and practices. Due to the potential for
conflicting requirements and confusion, the Commission believes its
current E911 rules better define a standard for reasonable practices as
they relate to call routing. Second, the Commission finds that
enforcement of the TOCSIA emergency call routing provision is not
necessary for the protection of consumers, because the more stringent
E911 requirements will continue to be applicable to ``covered CMRS''
carriers. Finally, the Commission finds that forbearance from applying
TOCSIA's emergency call routing provision is consistent with the public
interest because the Commission is eliminating redundant obligations.
G. Other Issues
22. Finally, in the Notice, the Commission sought comment on
TOCSIA's provision prohibiting OSPs from billing for unanswered
telephone calls. See PCIA Forbearance Order and Notice, 13 FCC Rcd at
16907-8, ] 105. The Commission finds, pursuant to 47 U.S.C.
226(b)(1)(F-G) and 47 U.S.C. 332(c)(8), that the billing for unanswered
calls provision of TOCSIA does not apply to CMRS carriers, and this
issue is, therefore, moot in the CMRS context.
23. Also, the Commission notes that GTE has requested, as in
earlier proceedings, that its Airfone and Railfone services be treated
differently than other CMRS providers and that the Commission take
action that reflects ``the unique character'' of its services. The
Commission finds no compelling reason to reverse its decision in PCIA
Forbearance Order where it affirmed the decisions in the GTE
Declaratory Ruling, 8 FCCR 6171 (Comm. Carr. Bur. 1993) (GTE
Declaratory Ruling), in which TOCSIA applies to the actions of certain
GTE affiliates. Consequently, the Commission concludes that GTE's
Airfone and Railfone services must comply with TOCSIA provisions fully.
24. Omnipoint argues that TOCSIA should not apply to customer
notification processes associated with a CMRS calling party pays (CPP)
service or, in the alternative, the Commission
[[Page 53895]]
should forbear from such regulation of CPP. There is no indication in
this record or in the Commission's experience that CPP services are
being provided by any CMRS carriers. Further, on April 9, 2001, the
Commission terminated the calling party pays proceeding. In its
Termination Order, 66 FR 22445 (May 4, 2001), the Commission stated
that regulations were not necessary to govern calling party pays
services and that lower prices and new pricing plans offered many of
the same benefits that calling party pays services would. In light of
this, the Commission finds no reason to resolve Omnipoint's arguments
in this proceeding.
III. Ordering Clause
25. Accordingly, pursuant to sections 4(i), 4(j), 10 and 11 of the
Communications Act of 1934, as amended, 47 U.S.C. sections 154(i),
154(j), 160 and 161, this Second Report and Order is adopted.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 03-23198 Filed 9-12-03; 8:45 am]
BILLING CODE 6712-01-P