****************** ************************ ************** NOTICE ****************** ************************ ************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ****************** ************************ *********************** 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. 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. 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." 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." 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." 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. 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. 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.'" Basic principles of statutory construction require that effect be given to every word of the statute, so that no word will be rendered meaningless. 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." 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." 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. 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" to mean "provisioned by the carrier with the underlying telecommunications service." 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. 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." 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. 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. Ultimately, regardless of what customers expect, the language of the provision itself governs. Similarly, the "principle of customer convenience" 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). 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," 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.