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Rule

Forbearance From Applying Provisions of TOCSIA to CMRS Carriers

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Information about this document as published in the Federal Register.

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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.

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FOR FURTHER INFORMATION CONTACT:

Wilbert E. Nixon, Jr., Policy and Rules Branch, Commercial Wireless Division, Wireless Telecommunications Bureau, at (202) 418-7240.

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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 Start Printed Page 53893must 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 Start Printed Page 53894adversely 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 Start Printed Page 53895should 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.

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Federal Communications Commission.

Marlene H. Dortch,

Secretary.

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[FR Doc. 03-23198 Filed 9-12-03; 8:45 am]

BILLING CODE 6712-01-P