[ Text | WordPerfect ]

Separate Statement of Commissioner Gloria Tristani
Dissenting in Part

Re: Telecommunications Carriers' Use of Customer Proprietary Network Information and Other Information; Implementation of the Non-Accounting Safeguards of Sections 271 and 272 of the Communications Act of 1934, As Amended. CC Docket Nos. 96-45 and 96-149.

I am forced to write separately, because I disagree with the majority in one major respect. I believe that the majority's reading of section 222(c)(1)(B) of the Act is contrary to the plain language of what the Commission previously found to be a "clear and unambiguous" provision.(1) Accordingly, I believe that the Commission should have denied the petitions for reconsideration of our conclusion that carriers may not use customer proprietary network information (CPNI) to market customer premises equipment (CPE) and most information services without first obtaining customer approval.(2)

Section 222(c)(1)(B) sets forth an exception to the general prohibition against the use of CPNI without customer approval for information related to "services necessary to, or used in, the provision of . . . telecommunications service, including the publishing of directories."(3) In the CPNI Order, the Commission concluded that CPE and most information services do not fall under section 222(c)(1)(B), because they are not "services necessary to, or used in, the provision of . . . telecommunications service."(4) I believe that this reading is compelled by the terms of the statute. Therefore, I must dissent from the majority's reading of section 222(c)(1)(B) to now include "products and services provisioned by the carrier with the underlying telecommunications service."(5) The majority rests its interpretation on the grounds that such products and services are "related" to and "facilitate" the provision of an underlying telecommunications service and customers "expect" them to be jointly provisioned, a basis divorced from the language of section 222(c)(1)(B) itself.(6)

By reading the term "services" to include both products and services, the majority impermissibly expands the scope of the section 222(c)(1)(B) exception. I believe that had Congress intended the section 222(c)(1)(B) exception to extend to equipment, it would have said so explicitly, creating an exception for both services and equipment necessary to, or used in, the provision of telecommunications services. Instead, as the Commission held in the CPNI Order, the exception set forth in section 222(c)(1)(B), by its terms, is limited to "services." CPE is by definition equipment, not a service.(7) I am puzzled by the majority's assertion that "its previous interpretation construed the term 'services' in isolation from the phrase 'necessary to, or used in.'"(8) Basic principles of statutory construction require that effect be given to every word of the statute, so that no word will be rendered meaningless.(9) Because petitioners have not presented any new arguments, facts, or evidence that persuades me that we incorrectly interpreted the text of this section, I continue to believe that the statutory language precludes the inclusion of equipment within section 222(c)(1)(B), even if the equipment is "necessary to, or used in, the provision of . . . telecommunications service."(10)

I am not persuaded by the majority's reliance on the only example that Congress included in section 222(c)(1)(B), "the publishing of directories," as justification for its reading of "services" to include "products and services."(11) The Commission previously expressly rejected the argument on which it now relies -- that the directory publishing example justifies a broader reading of section 222(c)(1)(B) -- in the CPNI Order. In that order, we stated that the publishing of directories is appropriately viewed as necessary to and used in the provision of complete and adequate telecommunications service.(12) I am baffled by the majority's new reading of the directory publishing example to sweep products, and equipment in particular, into the language of section 222(c)(1)(B).

In adopting the argument of several petitioners that information services are "services necessary to, or used in, the provision of . . . telecommunications service" for purposes section 222(c)(1)(B), the majority has read "necessary to, or used in, the provision of . . . telecommunications services"(13) to mean "provisioned by the carrier with the underlying telecommunications service."(14) We concluded in the CPNI Order that while information services, such as fax store and forward and Internet access services, constitute non-telecommunications "services," most such services are not "necessary to, or used in" the carrier's provision of telecommunications service. Rather, we reasoned that although telecommunications service is "necessary to, or used in, the provision of" any information services, information services generally are not "necessary to, or used in, the provision of" any telecommunications service.(15) While I acknowledge that information services can be an important component of the services that a customer receives from a telecommunications carrier, this fact alone does not change the conclusion that is compelled by the terms of the statute.

As the Commission has concluded previously, "the meaning of the term 'necessary' depends on the purposes of the statutory provision in which it is found."(16) The focus and placement of section 222 within the Act indicate Congress's intent that the Commission augment consumer privacy protections. Section 222 reflects Congress's view that with increased competition comes a risk that consumer privacy interests will not be protected by the marketplace. As a result, I continue to believe that control over the use of CPNI properly belongs in the hands of the customer. A narrow construction of the phrase "necessary to, or used in" best accomplishes the goals of the statute.(17)

In today's decision, the majority also relies on what it concludes are customer expectations regarding how services will be provisioned as the touchstone of whether an offering falls within the section 222(c)(1)(B) exception, an approach that I believe cannot be squared with the language of that provision. For example, the majority's reliance on the lack of record evidence showing that allowing wireline carriers to market CPE to their customers violates customer expectations is misplaced.(18) Ultimately, regardless of what customers expect, the language of the provision itself governs. Similarly, the "principle of customer convenience"(19) cannot be exalted above congressional intent in enacting the provision.

Accordingly, unlike the majority, I would decline to grant petitioners' requests that, because of the integrated nature of certain information services with telecommunications service, we should distinguish among information services for purposes of section 222(c)(1)(B).(20) In my view, none of the parties has presented a statutory basis for treating messaging services differently from other information services under section 222. As I note above, information services may well constitute an important component of the services a telecommunications carrier offers its customers. Nevertheless, these information services are not necessary to, or used in, the provision of the underlying telecommunications service.

In construing the phrase "services necessary to, or used in,"(21) the Commission must be guided by the statute's focus on the protection of customer privacy and hence narrowly construe the statute in order to optimize consumer protections. A carrier need only obtain permission to use CPNI in order to market CPE or information services to its customers, a minimal burden when weighed against the purposes of section 222. I believe this approach best effectuates Congress's intent by balancing competitive interests with the consumers' interests in privacy and control over CPNI.


1. 47 U.S.C. 222(c)(1)(B). Implementation of the Telecommunications Act of 1996: Telecommunications Carriers' Use of Customer Proprietary Network Information and Other Customer Information and 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, Second Report and Order and Further Notice of Proposed Rulemaking, 13 FCC Rcd 8061, 8120, 75 (1998) (CPNI Order).

2. I do not dissent from the majority's clarification that, like the provision of installation, repair, and maintenance of inside wiring in the wireline context, the tuning and retuning of CMRS units and repair and maintenance of such units is a service necessary to or used in the provision of CMRS service under section 222(c)(1)(B).

3. 47 U.S.C. 222(c)(1)(B).

4. CPNI Order, 13 FCC Rcd at 8116, 71.

5. Implementation of the Telecommunications Act of 1996: Telecommunications Carriers' Use of Customer Proprietary Network Information and Other Customer Information and 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, Order on Reconsideration and Petitions for Forbearance, __ FCC Rcd __, __, 40 (1999) (CPNI Recon) (emphasis added).

6. Id. at __, 41. An administrative agency may deviate from the text of a statute in very limited circumstances, such as to harmonize conflicts between statutes. See, e.g., Citizens to Save Spencer County et al. v. E.P.A., 600 F.2d 844 (D.C. Cir. 1979). Here, the majority seeks to extend the permissible use of CPNI beyond the plain meaning of section 222, yet does not demonstrate statutory conflict, evidence of congressional intent contrary to the conclusion we reached in the CPNI Order, or other extraordinary circumstances that would provide legitimate grounds on which to reconsider the Commission's previous action.

7. CPNI Order, 13 FCC Rcd at 8116, 71 (stating that "CPE is by definition customer premises equipment, and as such historically has been categorized and referred to as equipment").

8. CPNI Recon, __ FCC Rcd at __, 41.

9. See, e.g., Carcamo-Flores v. INS, 805 F.2d 60, 66 (2d Cir. 1986) (stating that "[t]here is a presumption against construing a statute as containing superfluous or meaningless words") (quoting United States v. Blasius, 397 F.2d 203, 207 n. 9 (2d Cir. 1968)).

10. See 47 U.S.C. 222(c)(1)(B). Nor do I find merit in petitioners' argument that inside wiring installation, maintenance, and repair services are tantamount to CPE under section 222(c)(1)(B). Comcast Petition at 13-14; CommNet Cellular Petition at 2-3; CTIA Petition at 25-29; Omnipoint Petition at 6-7; USTA Petition at 2-6; AT&T Comments at 9. While inside wiring is no more a service than CPE, it is not the inside wiring equipment itself that constitutes a service under section 222(c)(1)(B), but rather the installation, maintenance, and repair of the inside wire. CPNI Order, 13 FCC Rcd at 8124, 80.

11. 47 U.S.C. 222(c)(1)(B). CPNI Recon, __ FCC Rcd at __, 41. See also Comcast Petition at 13-14; Omnipoint Petition at 5 (arguing that the inclusion in the statute of this example requires a broader reading than the Commission adopted in the CPNI Order); PrimeCo Petition at 6-7 (asserting that for many CMRS customers voicemail is a more useful and more important feature than the availability of published directories).

12. I am not persuaded by SBC's argument that the Commission failed to articulate a reasoned basis for its conclusion that services formerly characterized as "adjunct-to-basic," in contrast to information services, are covered under section 222(c)(1)(B). See CPNI Order, 13 FCC Rcd at 8118, 73 (stating that "[e]xamples of adjunct-to-basic services include speed dialing, call forwarding, computer-provided directory assistance, call monitoring, caller ID, call tracing, call blocking, call return, repeat dialing, call tracking, and certain centrex features") (citation omitted); SBC Petition at 7. See also NTCA Petition at 6-7. In drawing this distinction, the CPNI Order relied in part on Commission precedent. The Commission noted that it previously determined that the computer processing functions of adjunct-to-basic services are "used in conjunction with 'voice' service" and "help telephone companies provide or manage basic telephone services," as opposed to the information conveyed through enhanced services. CPNI Order, 13 FCC Rcd at 8118, 73 (emphasis in original) (citing North American Telecommunications Association Petition for Declaratory Ruling under Section 64.702 of the Commission's Rules Regarding the Integration of Centrex, Enhanced Services, and Customer Premises Equipment, ENF No. 84-2, Memorandum Opinion and Order, 101 FCC 2d 349, 358, 23-24 (1985), recon., 3 FCC Rcd 4385 (1988)). Thus, the Commission interpreted the language of section 222(c)(1)(B) to reach these adjunct-to-basic services, which are "used in" the carrier's provision of its telecommunications service, to the exclusion of information services. I note that the Commission recently recognized adjunct-to-basic services as being telecommunications services, and our treatment of these services in the CPNI Order is consistent with that determination. Implementation of the Non-Accounting Safeguards of Sections 271 and 272 of the Communications Act, as amended, First Report and Order and Further Notice of Proposed Rulemaking, 11 FCC Rcd 21905, 21958, 107 (1996).

13. 47 U.S.C. 222(c)(1)(B).

14. CPNI Recon, __ FCC Rcd at __, 40 (emphasis added).

15. 47 U.S.C. 222(c)(1)(B); CPNI Order, 13 FCC Rcd at 8116, 72.

16. See, e.g., In the Matter of Federal-State Joint Board on Universal Service, CC Docket No. 96-45, Report and Order, 12 FCC Rcd 8776, 9100, 618 (1997) (finding that the phrase "necessary for the provision of health care services . . . including instruction relating to such services" of section 254(h) means reasonably related to the provision of health care services, because a broad reading of the phrase is consistent with the purpose of that section). See also Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 608 (1979) (stating that a statute should be interpreted in light of the purposes that Congress sought to serve by its enactment).

17. For similar reasons, I do not agree with SBC and GTE that the term "necessary to" in section 222(c)(1)(B) should not be interpreted restrictively because in other proceedings the Commission has used the term "necessary" not to mean "indispensable" but rather "used" or "useful." See GTE Petition at 8; SBC Petition at 7.

18. CPNI Recon, __ FCC Rcd at __, 44.

19. Id. at __, 42.

20. See Bell Atlantic Petition at 7-9; GTE Petition at 21-26; NTCA Petition at 6-7; SBC Petition at 7; TDS Petition at 6. See also PrimeCo Petition at 6-7 (asserting that voice mail enables CMRS customers to receive communications when the handset is temporarily out of service); Cable & Wireless Comments at 10 (urging the Commission to allow use of CPNI only when the information service is an integral part of or otherwise related to the underlying telecommunications service).

21. 47 U.S.C. 222(c)(1)(B).