[Federal Register Volume 82, Number 230 (Friday, December 1, 2017)]
[Rules and Regulations]
[Pages 56909-56917]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-25917]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 64
[CC Docket No. 91-281; FCC 17-132]
Calling Number Identification Service--Caller ID
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: In this document, the Commission amends its Caller
Identification (Caller ID) privacy rules to allow law enforcement and
security personnel, as directed by law enforcement, to obtain quick
access to blocked Caller ID information needed to identify and thwart
threatening callers. The Commission exempts threatening calls from
blocked numbers from its caller privacy rules. Studies and reports show
a disturbing increase in threatening calls in recent years. Many
threatening calls come from blocked numbers. It directs carries that
upon report of such a threatening call by law enforcement on behalf of
the threatened party, the carrier will provide any CPN of the calling
party to law enforcement and, as directed by law enforcement, to
security personnel for the called party for the purpose of identifying
the party responsible for the threatening call. The Commission also
amends its rules to allow non-public emergency services to obtain
blocked Caller ID information associated with calls requesting
assistance.
DATES: Effective January 2, 2018, except for 47 CFR 64.1601(d)(4)(ii)
and (f), which contain new or modified information collection
requirements that require review by the Office of Management and Budget
(OMB) under the Paperwork Reduction Act (PRA), shall become effective
30 days after the Commission's publication of a document in the Federal
Register, which will announce approval by OMB under the PRA.
FOR FURTHER INFORMATION CONTACT: Nellie A. Foosaner, Consumer Policy
Division, Consumer and Governmental Affairs Bureau (CGB), at (202) 418-
2925, email: [email protected].
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report
and Order, FCC 17-132, CC Docket No. 91-281, adopted on October 24,
2017, and released on October 25, 2017. The full text of this document
will be available for public inspection and copying via ECFS, and
during regular business hours at the FCC Reference Information Center,
Portals II, 445 12th Street SW., Room CY-A257, Washington, DC 20554.
The full text of this document and any subsequently filed documents in
this matter may also be found by searching ECFS at: http://apps.fcc.gov/ecfs/ (insert CC Docket No. 91-281 into the Proceeding
block).
Congressional Review Act
The Commission sent a copy of this Report and Order to Congress and
the Government Accountability Office pursuant to the Congressional
Review Act, see 5 U.S.C. 801(a)(1)(A).
Final Paperwork Reduction Act of 1995 Analysis
This document contains modified information collection
requirements. The Commission, as part of its continuing effort to
reduce paperwork burdens, will invite the general public to comment on
the information collection requirements contained in Report and Order
as required by the Paperwork Reduction Act (PRA) of 1995, Public Law
104-13. In addition, the Commission notes that, pursuant to the Small
Business Paperwork Relief Act of 2002, Public Law 107-198, 44 U.S.C.
3506(c)(4), the Commission previously sought comment on how the
Commission might ``further reduce the information burden for small
business concerns with fewer than 25 employees.''
Synopsis
1. In Report and Order, the Commission helps security and law
enforcement personnel obtain quick access to blocked Caller ID
information needed to identify and thwart threatening callers. It also
amends its rules to allow non-public emergency services to obtain
blocked Caller ID information associated with calls requesting
assistance.
2. The number of threatening phone calls has increased dramatically
in recent years. These calls traumatize communities and result in
substantial disruption to schools, religious organizations, and other
entities. They also drain public resources by requiring the deployment
of police and bomb units. Schools and others receiving threats have
suggested that blocked Caller ID information hinders a rapid response.
The Commission's action moves away from case-by-case waivers to a
streamlined approach that will help protect the safety of threatened
parties in a timely way.
Caller ID Exemption for Threatening Calls
3. The Need for an Exemption. The Commission Modifies its Caller ID
rules
[[Page 56910]]
to exempt threatening calls from the Calling Party Number (CPN) privacy
rules so that security personnel and law enforcement have quick access
to information they need to aid their investigations. The Commission
agrees with the vast majority of commenters that the exemption promotes
public safety.
4. This new exemption is consistent with the Commission's prior
approach in this area. The Commission has previously concluded, for
example, that to the extent Caller ID services are used to deliver
emergency services, privacy requirements should not apply to delivery
of CPN to a public agency's emergency lines, a poison control line, or
in conjunction with 911 emergency services. In these instances, the
Commission concluded that Caller ID blocking mechanisms could
jeopardize emergency services and therefore pose a serious threat to
safety. The Commission believes that threatening calls present equally
compelling circumstances in which the need to ensure public safety, in
accordance with the Commission's fundamental statutory mission,
outweighs any CPN privacy interest of the threatening caller.
5. The Commission disagrees with the sole commenter who urges it to
not adopt an exemption but instead continue to issue case-by-case
waivers, albeit on a streamlined basis. The waiver process, even if
streamlined, would not provide equivalent benefits in combatting
threatening calls. Investigation of these cases can depend on immediate
action to stop a potentially catastrophic event. An exemption would
allow for virtually immediate access to blocked Caller ID information
upon proper request in threatening situations. The Commission thus
agrees with the commenters who point out that threatening calls should
be addressed immediately through an exemption in the Commission's rules
rather than a case-by-case waiver process.
6. The Commission also disagrees with commenters who urge that
carriers should have discretion to decline law enforcement requests to
get Caller ID information. CTIA--The Wireless Association claims that a
mandate is not necessary, noting both the industry's long and
successful track record of cooperation with law enforcement and that
the Electronic Communications Privacy Act (ECPA) utilizes a voluntary
disclosure provision. While the Commission believes that the industry's
record may indeed be laudatory, the Commission concludes that mandatory
disclosure is essential to its exemption. The Commission declines to
define a ``valid request'' from law enforcement, as suggested by
CenturyLink, because CTIA states carriers have an excellent track
record of complying with law enforcement requests under ECPA. The
Commission declines at this time to create a new law enforcement
request process because the record reveals no evidence that law
enforcement requests for this information have been ineffective or
unreliable in the past. The record reveals no scenarios where a request
for Caller ID by law enforcement, as the Commission describes below,
should give carriers reason to question the validity of the emergency.
Further, the imminent and grave nature of threatening calls, as defined
below, leave little time for the exercise of discretion in whether to
disclose information after law enforcement has become involved. As
discussed below, the Commission adopts the ECPA standard for disclosure
of information. The Commission does not find that standard to be
inconsistent with a mandatory disclosure requirement. Carriers that are
required to make disclosures in the very specific, narrowly defined
scenario covered by the Commission's new exemption will not violate the
more flexible ECPA standard by complying with the Commission's
requirement. Moreover, the Commission believes that a law enforcement
request based on the possibility of death or serious injury can satisfy
ECPA's ``good faith'' standard to justify a carrier's voluntary
disclosure of such information.
7. The Commission agrees with AT&T that carriers should not be
subject to liability for violation of its Caller ID privacy rules if
they disclose blocked Caller ID pursuant to the new exemption. As CTIA
notes, ``[l]aw enforcement has the experience and the thousands of
officers in communities throughout the country who are already
positioned to evaluate whether a threat is genuine.'' Law enforcement's
determination of a threatening call coupled with the mandatory nature
of the disclosure removes any justification for placing liability on
carriers who comply with a proper request for blocked Caller ID. CTIA
suggests that the Commission adopts a provision in its rule Sec.
64.1601(b)'s stating that prohibition on overriding a privacy indicator
does not apply when ``CPN delivery . . . (iv) Is provided in connection
with any lawful request by a law enforcement agency for assistance in
an emergency.'' Such a provision is unnecessary in light of the
Commission's existing rule, Sec. 64.1601(d)(4)(iii), exempting
``legally authorized call tracing or trapping procedures specifically
requested by a law enforcement agency.'' To the extent that AT&T and
NTCA--The Rural Broadband Association ask the Commission to somehow
exempt carriers from any other legal liability, the Commission declines
to do so. The Commission's concern is only with ensuring that its rules
do not interfere with the ability of carriers to respond to law
enforcement requests as allowed under law.
8. Definition of ``Threatening Call.'' The Commission defines the
term ``threatening call,'' which triggers the application of the new
exemption, as ``any call that conveys an emergency involving danger of
death or serious physical injury to any person requiring disclosure
without delay of information relating to the emergency.'' Typically, a
call from a person simply reporting a threat, where the facts of the
call indicate that the caller wishes to remain anonymous, would not be
subject to disclosure because disclosure would not be necessary to
prevent death or serious bodily injury. In the event disclosure is
necessary to prevent death or serious bodily injury, however, the rule
would allow disclosure only to law enforcement. The Commission thinks
this is appropriate and permitted by ECPA's emergency exception. The
Commission does not wish to deter anonymous tips made to law
enforcement. This definition ensures consistency with the emergency-
disclosure provision of ECPA, as urged by several commenters, and
because it satisfies the Commission's goal of targeting the most
threatening calls. NCTA states that the Commission ``should define a
threatening call under Sec. 64.1600 of its rules as `any call that
includes a threat involving danger of death or serious physical injury
to any person.' '' The Commission declines to use NCTA's definition
because referring to ``emergency'' rather than to ``threat''
encompasses more situations where immediate disclosure is necessary to
address an emergency. Additionally, its proposed definition is
consistent with ECPA. Finally, the Commission includes ``disclosure
without delay'' within the definition to further align its disclosure
requirement under circumstances where ECPA allows it.
9. Because carriers are already familiar with the ECPA standard and
ECPA covers the imminent nature of the dangers envisioned by the Caller
ID NPRM, published at 82 FR 33856, July 21, 2017, and commenters, the
Commission tailors its rule to align with the ECPA definition for
purposes of this new exemption. The Commission agrees
[[Page 56911]]
that it makes sense to align its definition of a threatening call with
existing federal law to ensure that carriers have consistent legal
standards to apply in situations where both the Commission's rules and
ECPA apply. The Commission also agrees with commenters that the ECPA
definition would sufficiently cover the types of calls it seeks to
exempt from the Caller ID blocking rule, without being either over- or
under-inclusive, or including terms that could be ambiguous.
10. Law Enforcement Involvement. The Commission finds that, to
ensure the exemption is not abused, a request for blocked Caller ID
information associated with a threatening call must be made by law
enforcement on behalf of the threatened party. The Commission believes
that this requirement will, among other things, ensure that such
requests concern a bona fide threatening call and will not be a pretext
for obtaining blocked Caller ID for other purposes. As CTIA commented,
such a requirement will ensure there is no ambiguity regarding the
necessary level of law enforcement involvement.
11. The Commission agrees with commenters that law enforcement
involvement at this stage of the process is essential to avoid having
carriers make a determination on what constitutes a threatening call.
AT&T avers that the involvement of law enforcement would help ensure
compliance with the ECPA disclosure requirements, and would help
prevent overbroad disclosures of blocked caller ID information that may
harm the privacy of non-threatening callers. According to AT&T, law
enforcement officials are ``indisputably better qualified to validate
the existence of emergency circumstances than carrier personnel,'' and
are likely more familiar with the facts giving rise to a requested
disclosure. CTIA adds that requiring law enforcement involvement when
restricted Caller ID information is requested would deter parties from
manipulating the unblocking process. The Commission agrees with
commenters that law enforcement personnel are in the best position to
determine the existence of a credible threat that necessitates
revealing CPN to investigate the threatening call.
12. Likewise, the Commission finds that only law enforcement
personnel and, as directed by law enforcement, others directly
responsible for the safety and security of the threatened party should
receive the otherwise protected Caller ID information in the case of
threatening calls. Security personnel may only receive the blocked
Caller ID information from the providers as directed by law enforcement
because law enforcement will generally be in a better position than
providers to determine who qualifies as security personnel. The
Commission limits the disclosure of the blocked Caller ID information
to prevent abuse, and to protect the privacy interests of parties who
may block their Caller ID for valid privacy interests, such as domestic
violence victims. By limiting the disclosure to law enforcement or, as
directed by law enforcement, to security personnel for purposes of
investigating a threat, the Commission seeks to prevent exploitations
of the amended rule, such as an abuser tracking down a victim. The
Commission defines security personnel as ``those individuals directly
responsible for maintaining safety of the threatened entity consistent
with the nature of the threat.'' For example, employees whose duties
include security at an institution would qualify as security personnel;
by contrast, an employee who merely answered the threatening phone or
an individual homeowner would not. Security personnel may include, but
are not limited to, corporate and government agency security personnel,
and school or university security staff acting within the scope of
their duties. In the case of an individual homeowner, law enforcement
can take reasonable action to protect the homeowner as it conducts its
investigation of a threatening call. The Commission allows disclosure
to security personnel as directed by law enforcement to encompass
situations where security personnel need access to the blocked Caller
ID information for investigative purposes, as in instances when a large
institution with its own security force, like a university or
government agency, receives a threat.
13. The Commission agrees with CTIA's recommendation that ``called
parties should not be the recipients of information,'' and the ``use of
disclosed CPN should be restricted--by rule--in a manner consistent
with prior waivers.'' In its reply comments, NTCA asserts that, in
times of exigency or in remote or insular areas, Caller ID information
should be available to volunteer rescuers and similar non-law
enforcement personnel with a safe harbor provision for carriers. The
rules the Commission adopts here make Caller ID information available
to ``security personnel,'' as directed by law enforcement, as well as
law enforcement, and the Commission's definition of ``security
personnel'' does not necessarily exclude the types of situations NTCA
describes. The determination NTCA urges would dependent on the facts of
a specific situation, and is, therefore, not appropriate for the
general exemption the Commission adopts here. Accordingly, the
Commission includes the following conditions in its rule for law
enforcement or, as directed by law enforcement, security personnel of
the called party investigating the threat: (1) The CPN on incoming
restricted calls may not be passed on to the line called; (2) any
system used to record CPN must be operated in a secure way, limiting
access to designated telecommunications and security personnel, as
directed by law enforcement; (3) telecommunications and security
personnel, as directed by law enforcement, may access restricted CPN
data only when investigating calls involving danger of death or serious
physical injury to any person requiring disclosure without delay of
information relating to the emergency, and shall document that access
as part of the investigative report; (4) carriers transmitting
restricted CPN information must take reasonable measures to ensure the
security of such communications; (5) CPN information must be destroyed
in a secure manner after a reasonable retention period; and, (6) any
violation of these conditions must be reported promptly to the
Commission. The Commission expects that these boundaries on how the
disclosed Caller ID information must be treated will advance public
safety efforts while protecting valid privacy interests. The Commission
has imposed these conditions on waivers both to ensure that the Caller
ID information in question is accessible only to persons with direct
involvement in investigating the threatening calls and to ensure that
the information is used only for that purpose. The Commission has no
indication that these conditions did not properly protect privacy
interests in the cases underlying the waivers, and the record does not
reveal any reason to doubt their efficacy more generally.
14. Carrier Obligations Under Section 222 of the Act. The
Commission finds that the disclosure required by the new exemption the
Commission adopts here is consistent with section 222 of the Act.
Section 222(a) of the Act states that ``[e]very telecommunications
carrier has a duty to protect the confidentiality of proprietary
information of, and relating to, other telecommunication carriers,
equipment manufacturers, and customers, including telecommunication
carriers reselling telecommunications services provided
[[Page 56912]]
by a telecommunications carrier.'' The Commission's amended rule
requiring carriers to disclose blocked Caller ID information when law
enforcement requests it to investigate threatening calls does not
contravene carriers' obligations under section 222 of the Act.
15. In addressing the threatening calls recently received by Jewish
Community Centers, the Bureau discussed section 222 of the Act in
connection with the statutory protection of customer proprietary
network information. The Commission agrees with the Bureau's view that
section 222(d) of the Act allows for carriers to disclose blocked
Caller ID in the case of unlawful activity because section 222(d) of
the Act states, ``[n]othing in this section prohibits a
telecommunications carrier from using, disclosing, or permitting access
to customer proprietary network information obtained from its
customers, either directly or indirectly through its agents . . . to
protect users of those services and other carriers from fraudulent,
abusive, or unlawful use of, or subscription to, such services.'' As
described above, the Commission defines a ``threatening call'' as ``any
call that conveys an emergency involving danger of death or serious
physical injury to any person requiring disclosure without delay of
information relating to the emergency.'' By limiting the disclosure of
blocked Caller ID to narrowly defined cases of threatening calls that
raise the ``danger of death or serious physical injury to any person,''
the Commission ensures that carriers are within their obligations under
section 222 of the Act.
The Jewish Community Centers' Temporary Waiver
16. On February 28, 2017, Senator Charles E. Schumer submitted a
letter to the Commission expressing concern regarding recent bomb
threats made via phone against various Jewish Community Centers (JCCs)
in New York and across the nation. Senator Schumer noted that the
Commission has played a valuable role in ensuring law enforcement and
others are not hindered in their access to the caller information of
threatening calls and suggested consideration of the grant of a waiver.
On March 3, 2017, CGB granted to JCCs, and any carriers that serve
JCCs, a temporary, emergency waiver of Sec. 64.1601(b) of the
Commission's rules. In so doing, CGB indicated that this temporary
waiver would remain in effect until the Commission determined whether
the waiver should be made permanent. In addition, CGB sought comment on
whether to make this waiver permanent. Comments filed in response
support the waiver and note the public interest in promoting efforts to
identify and thwart individuals making threatening calls to JCCs. No
commenter opposed the waiver.
17. In the Caller ID NPRM, the Commission confirmed that good cause
continued to exist to maintain the temporary waiver of Sec. 64.1601(b)
of the Commission's rules granted to JCCs and the carriers who serve
them for disclosure of CPN associated with threatening calls. The
Caller ID NPRM stated that in the event the Commission were to amend
its rules to recognize a more general exemption for threatening calls,
the JCC waiver would be encompassed within the protections afforded by
that exemption. In Report and Order, the Commission recognizes an
exemption for threatening calls thereby encompassing the JCC waiver.
Accordingly, the JCC waiver is no longer necessary, and is superseded
by document FCC 17-32 and terminated as of the effective date of the
rule changes adopted herein.
Exemption for Non-Public Entities Providing Emergency Services
18. The Commission also amends its rules to allow non-public
emergency services to receive the CPN of all incoming calls from
blocked numbers requesting assistance. The Commission believes amending
its rules to allow non-public emergency services access to blocked
Caller ID promotes the public interest by ensuring timely provision of
emergency services without undermining any countervailing privacy
interests.
19. The Commission previously concluded that ``[t]o the extent that
CPN-based services are used to deliver emergency services, the
Commission finds that privacy requirements for CPN-based services
should not apply to delivery of the CPN to a public agency's emergency
line, a poison control line, or in conjunction with 911 emergency
services'' and has noted that ``in an emergency, a caller is not likely
to remember to dial or even know to dial an unblocking code.'' Here the
Commission takes its previous conclusions a logical step further by
amending the rules to allow non-public emergency services to retrieve
from carriers the blocked Caller ID of callers seeking assistance. The
Commission believes these callers would want an emergency service,
whether a public agency or non-public entity, to be able to quickly and
easily contact or locate them using their phone number to provide
assistance.
20. The Bureau previously waived the Caller ID privacy rule for a
private ambulance service, Chevrah Hatzalah Volunteer Ambulance Corps
Inc. (Hatzalah). In granting the waiver, the Bureau noted that
Hatzalah's automatic dial retrieval system ``. . . is disrupted when
the incoming call comes from a caller who has requested that his/her
number not be revealed to the called party. In this circumstance,
Hatzalah states that the inability to automatically identify callers
creates several problems that can delay or even prevent the timely
provision of emergency care.'' In its petition, Hatzalah further argued
that allowing it to access blocked Caller ID information ``would not
frustrate [the] purpose [of the Commission's rule] because the
Commission has recognized that a caller's privacy interest should not
interfere with the delivery of emergency services.''
21. The Bureau found that the waiver served the public interest
``because Hatzalah will be better able to respond to emergency
situations by saving the crucial time taken when requesting phone
number and location information from the caller.'' The Bureau also
noted, ``. . . people seeking emergency services are often under great
stress when they call, which can lead to difficulty in accurately
communicating the vital telephone number and location information.''
Finally, the Bureau agreed with Hatzalah ``that a caller seeking
emergency services has an interest in the number becoming known to the
emergency provider to speed the provision of emergency services and,
therefore, any privacy concerns are minimized in this context.''
22. In the Caller ID NPRM, the Commission sought comment on whether
it should extend the proposed exemption to non-public entities that
provide emergency services such as private ambulance companies.
Hatzalah urges us to amend its rules for the same reasons the Bureau
granted it a waiver so that other non-public emergency services will
also have access to blocked Caller ID to provide the requested
assistance. The Commission agrees that the Hatzalah Order's reasoning
should apply more generally and find that allowing non-public emergency
services to access blocked Caller ID promotes public safety and does
not undermine any countervailing privacy interests associated with
revealing CPN. Petition of Chevrah Hatzalah Volunteer Ambulance Corps
Inc. for Waiver of Section 1601(b) of the Commission's Rules--Blocked
Telephone Numbers, CC Docket No. 91-281, Order, 28 FCC Rcd 1253 (CGB
2013) (order was not published in the Federal Register). In
[[Page 56913]]
order to facilitate the public safety goals of non-public emergency
services, the Commission amends its Caller ID privacy rules to allow
such services to obtain blocked Caller ID from carriers.
23. Consistent with the Hatzalah Order, entities providing
emergency services must be licensed by a state or municipality to
provide such services to qualify for this exemption. Unlike the
threatened callers discussed above, non-public emergency services do
not have to act in conjunction with law enforcement to obtain blocked
Caller ID information from carriers. Involving public emergency
services in this scenario would undermine the goal of allowing
providers of emergency services to provide quick and effective
assistance to individuals seeking such assistance.
Final Regulatory Flexibility Act Analysis
24. As required by the Regulatory Flexibility Act of 1980, as
amended, (RFA), the Commission incorporated an Initial Regulatory
Flexibility Analysis (IRFA) into the Caller ID NPRM. The Commission
sought written comment on the proposals in the Caller ID NPRM,
including comment on the IRFA. No comments were received on the IRFA.
Need for, and Objectives of, the Order
25. The Report and Order takes an important step to help security
and law enforcement personnel responsible for the safety of parties
receiving certain threatening calls obtain quick access to the Caller
ID information needed to identify and thwart threatening callers. The
Report and Order moves away from case-by-case waivers to the
streamlined approach necessary to help protect the safety of threatened
parties in a timely way. Specifically, Report and Order clears the way
for carriers to disclose blocked Caller ID information associated with
threatening calls to facilitate the investigation of such threats and
amends the Commission's rules to allow non-public emergency services to
obtain blocked Caller ID information associated with calls requesting
assistance.
26. Caller ID Exemption for Threatening Calls. The Report and Order
modifies the Commission's Caller ID rules to exempt threatening calls
from the CPN privacy rules, so that security personnel and associated
law enforcement have quick access to information they need to aid their
investigations. The Report and Order defines the term ``threatening
call,'' which triggers the application of the new exemption, as ``any
call that conveys an emergency involving danger of death or serious
physical injury to any person requiring disclosure without delay of
information relating to the emergency.'' This definition is consistent
with the emergency-disclosure provision of ECPA, and it satisfies the
Commission's goal of targeting the most threatening calls.
27. Law Enforcement Involvement. To ensure the exemption is not
abused, a request for blocked Caller ID associated with a threatening
call must be made by law enforcement on behalf of the threatened party.
The Commission believes that this requirement will, among other things,
ensure that such requests concern a bona fide threatening call and will
not be a pretext for obtaining blocked Caller ID for other purposes.
28. Only Law Enforcement and Security Personnel Receive Blocked
Caller ID. Only law enforcement personnel and others responsible for
the safety and, as directed by law enforcement, security personnel of
the threatened party should receive the otherwise protected Caller ID
information in the case of threatening calls. The Report and Order
limits the disclosure of the blocked Caller ID information to prevent
abuse of the disclosure process, and to protect the privacy interests
of parties who may block their Caller ID for valid privacy interests,
such as domestic violence victims. The Report and Order defines
security personnel as ``those individuals directly responsible for
maintaining safety of the threatened entity consistent with the nature
of the threat.''
29. Conditions on Receipt of Blocked Caller ID Information. The
Report and Order includes the following conditions in the Commission's
rule for law enforcement or security personnel of the called party
investigating the threat: (1) The CPN on incoming restricted calls may
not be passed on to the line called; (2) any system used to record CPN
must be operated in a secure way, limiting access to designated
telecommunications and, as directed by law enforcement, security
personnel; (3) telecommunications and, as directed by law enforcement,
security personnel may access restricted CPN data only when
investigating calls involving danger of death or serious physical
injury to any person requiring disclosure without delay of information
relating to the emergency, and shall document that access as part of
the investigative report; (4) carriers transmitting restricted CPN
information must take reasonable measures to ensure the security of
such communications; (5) CPN information must be destroyed in a secure
manner after a reasonable retention period; and (6) any violation of
these conditions must be reported promptly to the Commission.
30. Carrier Obligations Under Section 222 of the Act. The
disclosure required by the new exemption adopted in the Report and
Order is consistent with section 222 of the Act. Section 222(a) of the
Act states that ``[e]very telecommunications carrier has a duty to
protect the confidentiality of proprietary information of, and relating
to, other telecommunication carriers, equipment manufacturers, and
customers, including telecommunication carriers reselling
telecommunications services provided by a telecommunications carrier.''
The Commission's amended rule requiring carriers to disclose blocked
Caller ID information when law enforcement requests it does not
contravene carriers' obligations under section 222 of the Act.
31. Jewish Community Center Temporary Waiver. The Report and Order
recognizes an exemption for threatening calls thereby encompassing the
JCC waiver. Accordingly, the JCC waiver is no longer necessary, and is
superseded by the Report and Order.
32. Non-Public Emergency Services. The Report and Order also amends
the Commission's rules to allow non-public emergency services to
receive the CPN of all incoming calls from blocked numbers requesting
assistance. Amending the Commission's rules to allow non-public
emergency services access to blocked Caller ID promotes the public
interest by ensuring timely provision of emergency services without
undermining any countervailing privacy interests.
Response to Comments by the Chief Counsel for Advocacy of the Small
Business Administration
33. Pursuant to the Small Business Jobs Act of 2010, which amended
the RFA, the Commission is required to respond to any comments filed by
the Chief Counsel for Advocacy of the Small Business Administration
(SBA), and to provide a detailed statement of any change made to the
proposed rules as a result of those comments. The Chief Counsel did not
file any comments in response to the proposed rules in this proceeding.
Description and Estimate of the Number of Small Entities to Which the
Rules Will Apply
34. The RFA directs agencies to provide a description of, and where
feasible, an estimate of the number of small entities that will be
affected by the proposed rules, if adopted. The RFA generally defines
the term ``small entity'' as having the same meaning as
[[Page 56914]]
the terms ``small business,'' ``small organization,'' and ``small
governmental jurisdiction.'' In addition, the term ``small business''
has the same meaning as the term ``small business concern'' under the
Small Business Act. Under the Small Business Act, a ``small business
concern'' is one that: (1) Is independently owned and operated; (2) is
not dominant in its field of operation; and (3) meets any additional
criteria established by the Small Business Administration. Nationwide,
there are a total of approximately 28.8 million small businesses,
according to the SBA.
Wireline Carriers
35. Wired Telecommunications Carriers. The U.S. Census Bureau
defines this industry as ``establishments primarily engaged in
operating and/or providing access to transmission facilities and
infrastructure that they own and/or lease for the transmission of
voice, data, text, sound, and video using wired communications
networks. Transmission facilities may be based on a single technology
or a combination of technologies. Establishments in this industry use
the wired telecommunications network facilities that they operate to
provide a variety of services, such as wired telephony services,
including VoIP services, wired (cable) audio and video programming
distribution, and wired broadband internet services. By exception,
establishments providing satellite television distribution services
using facilities and infrastructure that they operate are included in
this industry.'' The SBA has developed a small business size standard
for Wired Telecommunications Carriers, which consists of all such
companies having 1,500 or fewer employees. Census data for 2012 shows
that there were 3,117 firms that operated that year. Of this total,
3,083 operated with fewer than 1,000 employees. Thus, under this size
standard, the majority of firms in this industry can be considered
small.
36. Local Exchange Carriers (LECs). Neither the Commission nor the
SBA has developed a small business size standard specifically for local
exchange services. The closest applicable size standard under SBA rules
is for the category wired telecommunications carriers. The U.S. Census
Bureau defines this industry as ``establishments primarily engaged in
operating and/or providing access to transmission facilities and
infrastructure that they own and/or lease for the transmission of
voice, data, text, sound, and video using wired communications
networks. Transmission facilities may be based on a single technology
or a combination of technologies. Establishments in this industry use
the wired telecommunications network facilities that they operate to
provide a variety of services, such as wired telephony services,
including VoIP services, wired (cable) audio and video programming
distribution, and wired broadband internet services. By exception,
establishments providing satellite television distribution services
using facilities and infrastructure that they operate are included in
this industry.'' Under that size standard, such a business is small if
it has 1,500 or fewer employees. Census data for 2012 show that there
were 3,117 firms that operated that year. Of this total, 3,083 operated
with fewer than 1,000 employees. Consequently, the Commission estimates
that most providers of local exchange service are small businesses.
37. Incumbent Local Exchange Carriers (Incumbent LECs). Neither the
Commission nor the SBA has developed a small business size standard
specifically for incumbent local exchange services. The closest
applicable size standard under SBA rules is for the category wired
telecommunications carriers. The U.S. Census Bureau defines this
industry as ``establishments primarily engaged in operating and/or
providing access to transmission facilities and infrastructure that
they own and/or lease for the transmission of voice, data, text, sound,
and video using wired communications networks. Transmission facilities
may be based on a single technology or a combination of technologies.
Establishments in this industry use the wired telecommunications
network facilities that they operate to provide a variety of services,
such as wired telephony services, including VoIP services, wired
(cable) audio and video programming distribution, and wired broadband
internet services. By exception, establishments providing satellite
television distribution services using facilities and infrastructure
that they operate are included in this industry.'' Under that size
standard, such a business is small if it has 1,500 or fewer employees.
Census data for 2012 show that there were 3,117 firms that operated
that year. Of this total, 3,083 operated with fewer than 1,000
employees. Consequently, the Commission estimates that most providers
of incumbent local exchange service are small businesses.
38. Competitive Local Exchange Carriers (Competitive LECs),
Competitive Access Providers (CAPs), Shared-Tenant Service Providers,
and Other Local Service Providers. Neither the Commission nor the SBA
has developed a small business size standard specifically for these
service providers. The appropriate size standard under SBA rules is for
the category wired telecommunications carriers. The U.S. Census Bureau
defines this industry as ``establishments primarily engaged in
operating and/or providing access to transmission facilities and
infrastructure that they own and/or lease for the transmission of
voice, data, text, sound, and video using wired communications
networks. Transmission facilities may be based on a single technology
or a combination of technologies. Establishments in this industry use
the wired telecommunications network facilities that they operate to
provide a variety of services, such as wired telephony services,
including VoIP services, wired (cable) audio and video programming
distribution, and wired broadband internet services. By exception,
establishments providing satellite television distribution services
using facilities and infrastructure that they operate are included in
this industry.'' Under that size standard, such a business is small if
it has 1,500 or fewer employees. Census data for 2012 show that there
were 3,117 firms that operated that year. Of this total, 3,083 operated
with fewer than 1,000 employees. Consequently, the Commission estimates
that most providers of competitive local exchange service, competitive
access providers, Shared-Tenant Service Providers, and other local
service providers are small entities.
39. The Commission has included small incumbent LECs in this
present RFA analysis. As noted above, a ``small business'' under the
RFA is one that, inter alia, meets the pertinent small business size
standard (e.g., a telephone communications business having 1,500 or
fewer employees), and ``is not dominant in its field of operation.''
The SBA's Office of Advocacy contends that, for RFA purposes, small
incumbent LECs are not dominant in their field of operation because any
such dominance is not ``national'' in scope. The Commission has
therefore included small incumbent LECs in this RFA analysis, although
it emphasizes that this RFA action has no effect on Commission analyses
and determinations in other, non-RFA contexts.
40. Interexchange Carriers. Neither the Commission nor the SBA has
developed a small business size standard specifically for providers of
interexchange services (IXCs). The appropriate size standard under SBA
rules is for the category wired
[[Page 56915]]
telecommunications carriers. The U.S. Census Bureau defines this
industry as ``establishments primarily engaged in operating and/or
providing access to transmission facilities and infrastructure that
they own and/or lease for the transmission of voice, data, text, sound,
and video using wired communications networks. Transmission facilities
may be based on a single technology or a combination of technologies.
Establishments in this industry use the wired telecommunications
network facilities that they operate to provide a variety of services,
such as wired telephony services, including VoIP services, wired
(cable) audio and video programming distribution, and wired broadband
internet services. By exception, establishments providing satellite
television distribution services using facilities and infrastructure
that they operate are included in this industry.'' Under that size
standard, such a business is small if it has 1,500 or fewer employees.
Census data for 2012 show that there were 3,117 firms that operated
that year. Of this total, 3,083 operated with fewer than 1,000
employees. Consequently, the Commission estimates that the majority of
IXCs are small entities.
41. Other Toll Carriers. Neither the Commission nor the SBA has
developed a size standard for small businesses specifically applicable
to other toll carriers. This category includes toll carriers that do
not fall within the categories of interexchange carriers, operator
service providers, prepaid calling card providers, satellite service
carriers, or toll resellers. The closest applicable size standard under
SBA rules is for wired telecommunications carriers. The U.S. Census
Bureau defines this industry as ``establishments primarily engaged in
operating and/or providing access to transmission facilities and
infrastructure that they own and/or lease for the transmission of
voice, data, text, sound, and video using wired communications
networks. Transmission facilities may be based on a single technology
or a combination of technologies. Establishments in this industry use
the wired telecommunications network facilities that they operate to
provide a variety of services, such as wired telephony services,
including VoIP services, wired (cable) audio and video programming
distribution, and wired broadband internet services. By exception,
establishments providing satellite television distribution services
using facilities and infrastructure that they operate are included in
this industry.'' Under that size standard, such a business is small if
it has 1,500 or fewer employees. Census data for 2012 show that there
were 3,117 firms that operated that year. Of this total, 3,083 operated
with fewer than 1,000 employees. Thus, under this category and the
associated small business size standard, the majority of other toll
carriers can be considered small.
Wireless Carriers
42. Wireless Telecommunications Carriers (except Satellite). Since
2007, the Census Bureau has placed wireless firms within this new,
broad, economic census category. Under the present and prior
categories, the SBA has deemed a wireless business to be small if it
has 1,500 or fewer employees. For the category of wireless
telecommunications carriers (except Satellite), Census data for 2012
show that there were 967 firms that operated for the entire year. Of
this total, 955 firms had fewer than 1,000 employees. Thus, under this
category and the associated size standard, the Commission estimates
that the majority of wireless telecommunications carriers (except
satellite) are small entities. Similarly, according to internally
developed Commission data, 413 carriers reported that they were engaged
in the provision of wireless telephony, including cellular service,
Personal Communications Service (PCS), and Specialized Mobile Radio
(SMR) services. Of this total, an estimated 261 have 1,500 or fewer
employees. Thus, using available data, the Commission estimates that
the majority of wireless telecommunications carriers can be considered
small.
43. Satellite Telecommunications Providers. The category of
satellite telecommunications ``comprises establishments primarily
engaged in providing telecommunications services to other
establishments in the telecommunications and broadcasting industries by
forwarding and receiving communications signals via a system of
satellites or reselling satellite telecommunications.'' This category
has a small business size standard of $32.5 million or less in average
annual receipts, under SBA rules. For this category, Census Bureau data
for 2012 show that there were a total of 333 firms that operated for
the entire year. Of this total, 299 firms had annual receipts of under
$25 million. Consequently, the Commission estimates that the majority
of satellite telecommunications firms are small entities.
44. All Other Telecommunications. All other telecommunications
comprise, inter alia, ``establishments primarily engaged in providing
specialized telecommunications services, such as satellite tracking,
communications telemetry, and radar station operation. This industry
also includes establishments primarily engaged in providing satellite
terminal stations and associated facilities connected with one or more
terrestrial systems and capable of transmitting telecommunications to,
and receiving telecommunications from, satellite systems.
Establishments providing Internet services or voice over Internet
protocol (VoIP) services via client-supplied telecommunications
connections are also included in this industry.'' The SBA has developed
a small business size standard for the category of All Other
Telecommunications. Under that size standard, such a business is small
if it has $32.5 million in annual receipts. For this category, Census
Bureau data for 2012 show that there were a total of 1,442 firms that
operated for the entire year. Of this total, 1,400 had annual receipts
below $25 million per year. Consequently, the Commission estimates that
the majority of all other telecommunications firms are small entities.
Resellers
45. Toll Resellers. The Commission has not developed a definition
for toll resellers. The closest NAICS Code Category is
Telecommunications Resellers. The Telecommunications Resellers industry
comprises establishments engaged in purchasing access and network
capacity from owners and operators of telecommunications networks and
reselling wired and wireless telecommunications services (except
satellite) to businesses and households. Establishments in this
industry resell telecommunications; they do not operate transmission
facilities and infrastructure. Mobile virtual network operators (MVNOs)
are included in this industry. The SBA has developed a small business
size standard for the category of Telecommunications Resellers. Under
that size standard, such a business is small if it has 1,500 or fewer
employees. Census data for 2012 show that 1,341 firms provided resale
services during that year. Of that number, 1,341 operated with fewer
than 1,000 employees. Thus, under this category and the associated
small business size standard, the majority of these resellers can be
considered small entities. According to Commission data, 881 carriers
have reported that they are engaged in the provision of toll resale
services. Of this total, an estimated 857 have 1,500 or fewer
employees. Consequently, the Commission
[[Page 56916]]
estimates that the majority of toll resellers are small entities.
46. Local Resellers. The SBA has developed a small business size
standard for the category of telecommunications resellers. The
telecommunications resellers industry comprises establishments engaged
in purchasing access and network capacity from owners and operators of
telecommunications networks and reselling wired and wireless
telecommunications services (except satellite) to businesses and
households. Establishments in this industry resell telecommunications;
they do not operate transmission facilities and infrastructure. Mobile
virtual network operators (MVNOs) are included in this industry. Under
that size standard, such a business is small if it has 1,500 or fewer
employees. Census data for 2012 show that 1,341 firms provided resale
services during that year. Of that number, all operated with fewer than
1,000 employees. Thus, under this category and the associated small
business size standard, the majority of these prepaid calling card
providers can be considered small entities.
47. Prepaid Calling Card Providers. The SBA has developed a small
business size standard for the category of telecommunications
resellers. The telecommunications resellers industry comprises
establishments engaged in purchasing access and network capacity from
owners and operators of telecommunications networks and reselling wired
and wireless telecommunications services (except satellite) to
businesses and households. Establishments in this industry resell
telecommunications; they do not operate transmission facilities and
infrastructure. Mobile virtual network operators (MVNOs) are included
in this industry. Under that size standard, such a business is small if
it has 1,500 or fewer employees. Census data for 2012 show that 1,341
firms provided resale services during that year. Of that number, all
operated with fewer than 1,000 employees. Thus, under this category and
the associated small business size standard, the majority of these
prepaid calling card providers can be considered small entities.
Description of Projected Reporting, Recordkeeping, and Other Compliance
Requirements for Small Entities
48. The Report and Order creates an exemption for threatening calls
and calls to non-public emergency services from the Commission's Caller
ID privacy rules. These changes affect small and large companies
equally, and apply equally to all classes of regulated entities
identified above.
49. Reporting and Recordkeeping Requirements. There are no new
reporting requirements. The Report and Order amends the caller privacy
rules to exempt threatening calls from the CPN privacy rules, so that
associated law enforcement and, as directed by law enforcement,
security personnel have quick access to information they need to aid
their investigations. Voice service providers do not need to change
their current recordkeeping as they have been able to provide CPN when
requested in the past.
50. The Report and Order adds a recordkeeping requirement. The
Commission amends its rules to allow non-public emergency services to
obtain blocked Caller ID information associated with calls requesting
assistance. Voice service providers will need to keep a record of when
they provide blocked Caller ID associated with calls requesting
assistance to non-public emergency services providers.
51. Other Compliance Requirements. Voice service providers will be
required to release blocked Caller ID information when it is requested
by law enforcement in conjunction with circumstances amounting to a
threatening call and when a non-public emergency service requests
blocked Caller ID. To do so, voice service providers must comply with
law enforcement requests for CPN as they currently do under ECPA. The
Commission anticipates the impact will be small because of the
statutory requirements already in place.
Steps Taken To Minimize the Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
52. The RFA requires an agency to describe any significant
alternatives that it has considered in reaching its approach, which may
include the following four alternatives, among others: (1) the
establishment of differing compliance or reporting requirements
timetables that take into account the resources available to small
entities; (2) the clarification, consolidation, or simplification of
compliance or reporting requirements under the rule for small entities;
(3) the use of performance, rather than design, standards; and (4) an
exemption from coverage of the rule, or any part thereof, for small
entities.
53. The Commission considered feedback from the Caller ID NPRM in
crafting the final order. The Commission evaluated the comments in
light of the goal of removing regulatory roadblocks to help security
and law enforcement personnel responsible for the safety of parties
receiving certain threatening calls obtain quick access to the Caller
ID information needed to identify and thwart threatening callers. While
a commenter suggested permissive rules, the Commission implemented
mandatory rules in light of public safety concerns. The Commission
adopts an exemption instead of simply streamlining the waiver process
to allow for virtually immediate access to blocked Caller ID
information upon proper request in threatening situations. The
Commission considered continuing the waiver process, but inherent
delays in the waiver process do not meet the goal of streamlining
access to information needed to investigate threatening calls. In
addition, the Commission reduced uncertainty, burdens and costs on
small business providers that seek to relay the blocked Caller ID
information, by putting the identification of ``security personnel'' in
the hands of law enforcement as opposed to providers.
54. The Commission does not see a need to establish a special
timetable for small entities to reach compliance with the modification
to the rules. No small business has asked for a delay in implementing
the rules. In considering the burden on small business, the Commission
notes that they already have responsibilities under ECPA, and the
Commission aligns its threatening call definition with that of ECPA.
Similarly, there are no design standards or performance standards to
consider in this rulemaking.
Federal Rules Which Duplicate, Overlap, or Conflict With, the
Commission's Rules
55. None.
Ordering Clauses
56. Pursuant to the authority contained in sections 1-4, 201 and
222 of the Communications Act of 1934, as amended, 47 U.S.C. 151-154,
201, 222, This Report and Order IS ADOPTED and that part 64 of the
Commission's rules, 47 CFR 64.1600, 64.1601, are amended.
57. The Commission's Consumer & Governmental Affairs Bureau,
Reference Information Center, sent a copy of the Report and Order to
Congress and the Government Accountability Office pursuant to the
Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).
List of Subjects in 47 CFR Part 64
Communications common carriers, Reporting and recordkeeping
requirements, Telecommunications, Telephone.
[[Page 56917]]
Federal Communications Commission.
Katura Jackson,
Federal Register Liaison Officer, Office of the Secretary.
Final Rules
For the reasons discussed in the preamble, the Federal
Communications Commission amends 47 CFR part 64 as follows:
PART 64--MISCELLANEOUS RULES RELATING TO COMMON CARRIERS
0
1. The authority citation for part 64 continues to read as follows:
Authority: 47 U.S.C. 154, 225, 254(k), 403(b)(2)(B), (c), 715,
Pub. L. 104-104, 110 Stat. 56. Interpret or apply 47 U.S.C. 201,
218, 222, 225, 226, 227, 228, 254(k), 616, 620, and the Middle Class
Tax Relief and Job Creation Act of 2012, Pub. L. 112-96, unless
otherwise noted.
0
2. Amend Sec. 64.1600 by adding paragraph (l) to read as follows:
Sec. 64.1600 Definitions.
* * * * *
(l) Threatening Call. The term ``threatening call'' is any call
that conveys an emergency involving danger of death or serious physical
injury to any person requiring disclosure without delay of information
relating to the emergency.
0
3. Amend Sec. 64.1601 by revising paragraph (d)(4)(ii) and by adding
paragraphs (f) and (g) to read as follows:
Sec. 64.1601 Delivery requirements and privacy restrictions.
(d) * * *
(4) * * *
(ii) Is used on a public agency's emergency telephone line or in
conjunction with 911 emergency services, on a telephone line to contact
non-public emergency services licensed by the state or municipality, or
on any entity's emergency assistance poison control telephone line; or
* * * * *
(f) Paragraph (b) of this section shall not apply when CPN delivery
is made in connection with a threatening call. Upon report of such a
threatening call by law enforcement on behalf of the threatened party,
the carrier will provide any CPN of the calling party to law
enforcement and, as directed by law enforcement, to security personnel
for the called party for the purpose of identifying the party
responsible for the threatening call.
(g) For law enforcement or security personnel of the called party
investigating the threat:
(1) The CPN on incoming restricted calls may not be passed on to
the line called;
(2) Any system used to record CPN must be operated in a secure way,
limiting access to designated telecommunications and security
personnel, as directed by law enforcement;
(3) Telecommunications and security personnel, as directed by law
enforcement, may access restricted CPN data only when investigating
phone calls of a threatening and serious nature, and shall document
that access as part of the investigative report;
(4) Carriers transmitting restricted CPN information must take
reasonable measures to ensure security of such communications;
(5) CPN information must be destroyed in a secure manner after a
reasonable retention period; and
(6) Any violation of these conditions must be reported promptly to
the Commission.
[FR Doc. 2017-25917 Filed 11-30-17; 8:45 am]
BILLING CODE 6712-01-P