Comments of Public Counsel Washington Attorney General October 2, 1998 Washington Utilities and Transportation Commission Notice of Proposed Rulemaking (CR 102) Customer Proprietary Network Information (CPNI) UT-971514 Introduction Public Counsel files these comments pursuant to the Commission=s Notice of Proposed Rulemaking of September 22, 1998. Public Counsel filed comments and proposed rule language on January 8, 1998, took part in the workshop on January 21, filed further comments on May 20, and participated in the Commission=s prior rulemaking which addressed customer information privacy issues, UT 960942. While Public Counsel has consistently argued in these proceedings for a broader approach to privacy protection than contained in the proposed rules, Public Counsel understands that the Commission is inclined to adopt an approach that tracks the federal rules and initiate a separate proceeding to look at broader privacy issues. These comments, therefore, are directed only to the rules proposed in the CR 102 and generally do not address other issues raised in previous comments. Comments FCC Rules Status The FCC rules contained at Appendix B of the FCC CPNI Rules Order In the Matter of the 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 No. 96-115, CC Docket 96-149, Second Report and Order and Further Notice of Proposed Rulemaking, February 26, 1998 (FCC CPNI Rules Order). are now final. A significant number of petitions for reconsideration are pending on a variety of issues. There is no indication of when the FCC will rule on the reconsideration requests. The FCC CPNI Rules Order also contained a Further Notice of Proposed Rulemaking on three issues: C. whether a customer may restrict carrier use of CPNI for all marketing purposes C. the appropriate protections for carrier information and additional enforcement mechanisms C. foreign storage of, and access to, domestic CPNI Comment deadlines in the Further NPRM were March 30 and April 14, 1998. No order has been issued under the Further NPRM. On September 24, 1998, the FCC released an order in its CPNI proceeding extending the deadline for carriers to comply with the electronic safeguards provisions of the federal rules.In the Matter of the Implementation of the Telecommunications Act of 1996: Telecommunications Carriers= Use of Customer Proprietary Network Information and Other Customer Information, CC Docket 96-115, Order, September 24, 1998. WAC 480-120-144 --- Use of Privacy Listings for Telephone Solicitation Public Counsel supports the continued inclusion of this provision from the previous version of the rule. As we have argued before, however, this provision should be amended to allow any customer, not just those with unlisted or non-published numbers, to ask the serving telecommunications company to refrain from solicitation or telemarketing calls. This could be accomplished by amending the proposed rule to read as follows: A telecommunications company may not make telephone solicitation or telemarketing calls using its list of customers or CPNI [with nonpublished or unlisted numbers] unless it has notified each [such] customer within at least once in the past year that the company makes such calls to its customers [with nonpublished or unlisted numbers] and that the customer has a right to request that the company make no such calls. WAC 480-120-151 --- Telecommunications Carriers= Use of Customer Proprietary Network Information (CPNI) Paragraph (2) of this rule contains a reference that differs from the version of the rule attached to the Staff open meeting memorandum of July 22. Specifically, the final clause reads: AYexcept as described in (c) of this subsection.@ While this tracks the lettering used in the FCC rules, the Commission=s proposed rule uses different lettering and numbering. It appears that the reference should read AYexcept as described in paragraph (3) of this section@ if the intent is to mirror the meaning of the federal rule. WAC 480-120-152 --- Notice And Approval Required For Use Of Customer Proprietary Network Information (CPNI). Public Counsel recommends that the notification of customer rights and carrier duties be amended to note the applicability of state as well as federal law. WAC 480-120-152(6)(b)(i) should be revised to read: The notification must state that the customer has a right, and the carrier a duty, under federal and state law to protect the confidentiality of CPNI. The notification provisions of the rule are extremely important. Approval by a customer for use of CPNI amounts to a waiver of the customer=s right to privacy for that information. For such a waiver to be effective it must be knowing and voluntary. If complied with, the notification provisions of the rule should provide the customer with the information necessary to make an informed decision. Public Counsel, however, supports a requirement of written notice, unlike the federal rule and the proposed state rule, which allow the notice to be either oral or written. Attached to these comments as Appendix A is a copy of a notice which it appears USWC is currently giving (or has recently given) to customers regarding Acustomer privacy.@ This notice does not comply with the existing federal rule or the proposed state rule, inter alia, because it does not state clearly that the customer has a right and the carrier a duty to protect CPNI. Significantly, the notice appears A slanted@ towards obtaining approval, concluding with the statement A[i]f you haven=t given your approval, please call us at 1-800-CALLUSW[.]@ The Commission will need to work with carriers to ensure that the privacy notice language is complete and not misleading. Public Counsel recommends that the adopting order address the good faith implementation of the notification requirement and other procedures, and require Staff review of notice language. Conclusion Public Counsel supports the adoption of these privacy protections for customers. We recommend broadening the Ano-solicitation@ rule to give the same rights to all customers. We urge the Commission to give direction to companies and the Staff regarding implementation of the notification requirements. Public Counsel supports the Commission=s announced intent to continue examination of privacy issues in a separate docket and looks forward to participating in that process.