SEPARATE STATEMENT OF COMMISSIONER KATHLEEN Q. ABERNATHY

Re:  Implementation of the Telecommunications Act of 1996; Telecommunications 
Carriers' Use of Customer Proprietary Network Information and Other Customer 
Information; Implementation of the Non-Accounting Safeguards of Sections 271 
and 272 of the Communications Act of 1934, as Amended, CC Docket Nos. 96-
115 and 96-149 (adopted July 16, 2002).

The Report and Order we adopt today appropriately balances the critical 
governmental interest in protecting consumers' privacy with carriers' First Amendment 
right to communicate with their customers.  Recognizing that customers' privacy interests 
are strongest and carriers' First Amendment interests are weakest where the disclosure of 
CPNI to third parties is at stake, the Report and Order imposes a stringent "opt in" 
approval mechanism for such disclosures.  In contrast, because intracompany disclosures 
of CPNI generally are consistent with consumers' expectations of privacy and implicate 
much stronger First Amendment interests, the Report and Order adopts an "opt out" 
approval mechanism for intracompany information sharing.  I am pleased that this 
bifurcated approach both respects legitimate privacy interests and heeds the concerns 
expressed by the 10th Circuit Court of Appeals in vacating the Commission's previous 
approval requirements.
At times in the past, the Commission has responded to court remands by making 
only cosmetic changes to items, proceeding as if the court decision were an 
inconvenience to be overcome through creative lawyering.  Such an approach not only 
fails to respect the authority of reviewing courts, but also engenders tremendous 
regulatory uncertainty.  When decisions on remand fail to take seriously a court's 
instructions, they are often remanded yet again, throwing the industry and consumers into 
regulatory chaos.  We have already had a long period of uncertainty regarding CPNI 
approval requirements in the wake of the court remand; we certainly do not need another.  
Thus, while some may have preferred to reinstate an opt-in requirement for all uses of 
CPNI, I do not believe that such a decision could withstand scrutiny under the standard 
espoused by the 10th Circuit; as the item explains, an opt-in requirement for 
intracompany disclosures of information would be more restrictive than necessary to 
protect consumers' expectations of privacy.  Because an opt-in requirement for such 
disclosures almost certainly would subject the Commission to a further court remand ? 
and thus would subject consumers to additional uncertainty and diminished protection as 
we would once again be left without rules in place ? today's decision is the only 
responsible and consumer-friendly course available to us.



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