**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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**SECOND REPORT AND ORDER**

**Adopted: August 7, 2003 Released: August 20, 2003**

By the Commission:

# Introduction

1.  In this Second Report and Order, we decline, with two limited
    exceptions, to forbear any further from applying provisions of the
    Telephone Operator Consumer Services Improvement Act (TOCSIA)[^1] to
    commercial mobile radio services (CMRS) aggregators and operator
    service providers (OSPs). On July 2, 1998, the Commission released
    the *PCIA Forbearance Order and Notice*.[^2] In the *PCIA
    Forbearance Order*, the Commission decided to forbear from applying
    TOCSIA provisions that require CMRS aggregators and OSPs to provide
    unblocked access and to file informational tariffs.[^3] In the
    *Notice*, the Commission requested comment regarding whether,
    pursuant to Sections 10 and 332(c)(1)(A) of the Communications Act
    of 1934, as amended (the Act),[^4] the Commission should forbear any
    further from applying TOCSIA and the Commission's implementing
    regulations[^5] to CMRS aggregators and OSPs.[^6] In this Second
    Report and Order, we forbear from applying two additional TOCSIA
    provisions: (1) the requirement that CMRS OSPs regularly publish
    changes in their operator services, and (2) the requirement that
    CMRS OSPs and aggregators route emergency calls. We conclude, based
    on the record in this proceeding, however, that the remaining TOCSIA
    provisions and our implementing regulations that apply to CMRS
    carriers continue to be in the public interest.[^7]

# background

## Forbearance Standard

2.  Pursuant to Section 10 of the Act, the Commission is directed to
    forbear from applying any regulation or provision of the Act to a
    telecommunications carrier or service, or class of
    telecommunications carriers or services, in any or some of its
    geographic markets, if we determine that:

### (1) enforcement of such regulation or provision is not necessary to ensure that the charges, practices, classifications, or regulations by, for, or in connection with that telecommunications carrier or telecommunications service are just and reasonable and are not unjustly or unreasonably discriminatory; {#enforcement-of-such-regulation-or-provision-is-not-necessary-to-ensure-that-the-charges-practices-classifications-or-regulations-by-for-or-in-connection-with-that-telecommunications-carrier-or-telecommunications-service-are-just-and-reasonable-and-are-not-unjustly-or-unreasonably-discriminatory .unnumbered}

\(2\) enforcement of such regulation or provision is not necessary for
the protection of consumers; and

\(3\) forbearance from applying such provision or regulation is
consistent with the public interest.[^8]

## TOCSIA Requirements

3.  There are two categories of requirements set forth in TOCSIA and its
    implementing rules: 1) rules applicable to aggregators and 2) rules
    applicable to OSPs. "Aggregators" are defined as persons or entities
    that make telephones available to the public or to transient users
    of their facilities for interstate telephone calls using a provider
    of operator services.[^9] "Operator service providers" are defined
    as common carriers that provide operator services, or any other
    persons determined by the Commission to be providing operator
    services.[^10] The aggregator and OSP in a given arrangement may be
    the same entity, or they may be different entities.

4.  TOCSIA and the Commission's regulations require aggregators to post
    the following information on or near the telephone instrument, in
    plain view of consumers: (a) the name, address, and toll-free
    telephone number of the OSP presubscribed to the telephone;[^11] (b)
    a written disclosure that rates for service are available on
    request, and that consumers have a right to obtain access to the OSP
    of their choice and may contact their preferred OSP for information
    on accessing its service using that telephone;[^12] (c) in the case
    of a pay telephone, the local coin rate for the pay telephone
    location;[^13] and (d) the name and address of the Commission.[^14]

5.  In addition, TOCSIA and the Commission's regulations require OSPs to
    identify themselves, audibly and distinctly, to the consumer at the
    beginning of each telephone call and before the consumer incurs any
    charge for the call.[^15] They must also disclose immediately to the
    consumer, upon request and at no charge to the consumer, a quotation
    of their rates or charges for the call, the methods by which such
    rates or charges will be collected, and the method by which
    complaints concerning such rates, charges, or collection practices
    will be resolved.[^16] Further, OSPs must permit the consumer to
    terminate a telephone call at no charge before the call is
    connected[^17] and must not bill for unanswered telephone
    calls.[^18] Also, OSPs must not engage in \"call splashing\"[^19]
    unless the consumer requests to be transferred to another OSP, the
    consumer is informed prior to incurring any charges that the rates
    for the call may not reflect the rates from the actual originating
    location of the call, and the consumer then consents to be
    transferred.[^20] Further, except for the foregoing, OSPs must not
    bill for a call that does not reflect the location of the
    origination of the call.[^21] OSPs also must audibly disclose to
    consumers how to obtain the price of a call before it is
    connected.[^22]

6.  The regulatory scheme of TOCSIA affirmatively charges OSPs with
    overseeing aggregator compliance with the statute\'s aggregator
    disclosure requirements.[^23] In addition, the Commission requires
    OSPs to regularly publish and make available at no cost to inquiring
    customers written materials that describe any recent changes in
    operator services and in the choices available to consumers in that
    market,[^24] and the Commission requires OSPs and aggregators to
    ensure immediate connection of emergency telephone calls to the
    appropriate emergency service of the reported location of the
    emergency, if known, and, if not known, of the originating location
    of the call.[^25]

## PCIA Forbearance Order and Notice

7.  In the *PCIA Forbearance Order and Notice*, the Commission addressed
    a forbearance request by the Broadband Personal Communications
    Services Alliance of PCIA and decided, *inter alia*, to forbear from
    two provisions of TOCSIA for all CMRS OSPs.[^26] One of the
    TOCSIA-related provisions from which the Commission decided to
    forbear was the "unblocked access" provision, which allows consumers
    access to the OSP of their choice. The Commission also forbore from
    requiring CMRS OSPs to file informational tariffs. However, the
    Commission concluded that the record was insufficient to support
    forbearance from the other requirements of TOCSIA. Moreover, with
    respect to TOCSIA's disclosure requirements, the Commission declined
    to forbear because of the "vital information that disclosure
    provides to consumers" and "because there is no record evidence that
    these requirements impose an undue burden . . . ."[^27] Also in the
    *PCIA Forbearance Order and Notice*,[^28] the Commission affirmed on
    reconsideration the *GTE Declaratory Ruling*.[^29] Concurrently with
    the release of the *PCIA Forbearance Order*, the Commission issued
    the *Notice*, in which the Commission, *inter alia*, sought specific
    information relevant to determining whether, and in what respects,
    the Commission should forbear from applying or modifying additional
    TOCSIA requirements in the CMRS context.[^30]

8.  GTE Service Corporation (GTE)[^31] and PCIA[^32] filed comments and
    reply comments supporting forbearance from application of the TOCISA
    provisions to CMRS carriers. Omnipoint Communications, Inc.
    (Omnipoint) filed comments regarding TOCSIA's application to calling
    party pays (CPP) services.[^33] AT&T Wireless Services, Inc. (AT&T
    Wireless) filed an ex parte presentation also supporting
    forbearance.[^34] No party filed comments opposing forbearance in
    general.

# discussion

9.  We decline, with two limited exceptions, to forbear from applying
    TOCSIA provisions to CMRS aggregators and OSPs. We generally
    conclude that TOCSIA and our implementing regulations continue to be
    in the public interest in that their provisions ensure that
    transient users of mobile telephones designed for public use enjoy
    the same benefits they would have if they were using their own
    private mobile telephones.

10. We forbear, however, from applying two TOCSIA provisions to CMRS
    aggregators and OSPs where the risks of conflicting mandates compels
    forbearance and to ensure clarity for public safety. Specifically,
    we forbear from requiring CMRS OSPs to regularly publish and make
    available at no cost to inquiring consumers written materials that
    describe any recent changes in the operator's services and in the
    choices available to consumers. We find that forbearing from this
    provision is in the public interest, because other TOCSIA
    provisions, particularly the call branding and rate disclosure
    requirements, provide consumers with sufficient information to
    ensure that rates and practices are just and reasonable and that
    consumers are protected. Also, we forbear from applying emergency
    call routing provisions of TOCSIA to CMRS aggregators and OSPs. We
    find that forbearance in this case to be in the public interest,
    because the current E911 rules, which apply to the vast majority of
    CMRS carriers, are sufficient to protect consumers.

11. We analyze below whether the case for forbearing from applying
    specific TOCSIA provisions currently applicable to CMRS aggregators
    and OSPs meets the Section 10 forbearance standard. We conclude,
    based on this record, that the case for forbearing from applying
    TOCSIA provisions applicable to CMRS aggregators and OSPs fails to
    satisfy the Section 10 forbearance standard in all but two cases --
    OSP publication of changes in services and routing of emergency
    calls by "covered CMRS" OSPs. We find that the information in the
    record does not justify a departure from the Commission's 1998
    determination that grounds do not exist to support complete
    forbearance from applying all of the provisions of TOCSIA and the
    Commission's implementing regulations to CMRS OSPs and
    aggregators.[^35]

## Aggregator Disclosure

12. *Background*. Under our rules, CMRS aggregators are required to post
    the following information on or near the telephone instrument, in
    plain view of consumers: (a) the name, address, and toll-free
    telephone number of the OSP presubscribed to the telephone; (b) in
    the case of a pay telephone, the local coin rate for the pay
    telephone location;[^36] and (c) the name and address of the
    Commission.[^37]

13. In the *Notice*, the Commission tentatively concluded that it should
    continue to require some form of disclosure by CMRS aggregators
    similar to that mandated by TOCSIA.[^38] The Commission noted,
    however, that due to the increasing diminution in size of CMRS
    telephone devices, it may be impossible to post all of the required
    information, in a legible fashion, on the telephone instrument
    itself.[^39] Accordingly, the Commission tentatively concluded to
    forbear from requiring CMRS aggregators to post disclosure
    information \"on or near the telephone instrument,\" and to instead
    permit some or all CMRS aggregators to use some other reasonable
    means of disclosure.[^40]

14. *Discussion*. We decline to adopt our tentative conclusion to
    forbear from requiring aggregators to "post" disclosure information
    "on or near the telephone instrument," in the CMRS context. We
    recognize that, due to the diminutive size of many mobile phones
    today, the requisite legible disclosure language may not practically
    fit "on" the mobile phone. We find that forbearance in this case is
    unnecessary, however, because it is entirely practicable to post
    disclosure information "near" the mobile phone. In the mobile phone
    context, aggregators will be in compliance with TOCSIA if they post
    the necessary information "near" the mobile phone so that it is
    received by and can be kept by end-user customers. For example, CMRS
    aggregators will be in compliance with TOCISIA if they give printed
    documentation to the customer. CMRS aggregators may, for example,
    provide the required information to the consumer at the point of
    establishing a contractual relationship, *e.g*., at the car rental
    counter or concierge desk.[^41]

15. We find that aggregator disclosure requirements are, at a minimum,
    necessary to protect consumers, as required under the second prong
    of Section 10. We continue to believe that these requirements
    provide vital information to consumers of telecommunications
    services designed for public use, and there is no evidence in the
    record that these requirements impose an undue burden on
    aggregators. With our decision here not to forbear from enforcing
    these provisions, we ensure that customers of CMRS aggregators will
    benefit from access to the same information that is available to
    direct customers of CMRS providers, including the identity of and
    how to contact the underlying service provider, how to obtain
    information on rates, and how to lodge complaints about service.

## OSP Oversight of Aggregators

16. *Background*. Responsibility for enforcement of the aggregator
    disclosure requirements is, in addition to being placed on the
    aggregator as described above, placed upon the OSP used by the
    aggregator. Under TOCSIA and our implementing regulations, an OSP is
    obligated to ensure, by contract or tariff, that each aggregator for
    which such provider is the presubscribed provider of operator
    services is in compliance with the aggregator disclosure
    requirements.

17. In the *Notice*, the Commission tentatively concluded that it should
    retain the requirement that CMRS OSPs ensure by contract or tariff
    that aggregators will comply with the disclosure requirements.[^42]
    PCIA contends that the realities of the wireless industry make OSP
    oversight impossible because CMRS OSPs typically do not have
    contracts with aggregators, and indeed may not know who aggregators
    of their services are. The Commission therefore sought comment
    regarding the prevalence of contractual arrangements between CMRS
    aggregators and OSPs and on whether OSPs that do not have contracts
    with their aggregators, or do not know who their aggregators are,
    should be exempt from the oversight requirement.[^43]

18. *Discussion*. Consistent with our tentative conclusion, we find that
    the OSP oversight requirement is a necessary business tool to ensure
    that aggregators comply with their TOCSIA obligations. In situations
    where, for example, the CMRS carrier agrees to a contractual
    arrangement with an aggregator whereby it directly imposes charges
    upon members of the public, we find no basis for justifying
    forbearance from TOCSIA. Although the potential for abuse has been
    claimed to come from the aggregator because it is the aggregator
    that may most effectively take advantage of the consumer, in this
    particular context involving the existence of a contractual
    arrangement, the CMRS OSP may wield an important business influence
    over the aggregator. Similar to the wireline context, we cannot
    forbear under the first prong of Section 10 when this rule requiring
    such a business influence may serve to prevent potential abuses
    before they occur. In addition, we do not believe this business
    function to be insignificant to protecting the consumer under the
    second prong of the Section 10 forbearance standard.

19. Under TOCSIA, each OSP must ensure by contract or tariff that each
    aggregator with which it has contracted is in compliance with its
    disclosure obligations.[^44] In the absence of a contract or tariff
    with an aggregator to provide OSP services or knowledge of the
    aggregator's activities, the OSP is not responsible for ensuring
    aggregator compliance. Section 226(b)(1)(D) requires that each
    provider of operator services shall "ensure, by contract or tariff,
    that each aggregator for which such provider is a presubscribed
    provider of operator services is in compliance" with the aggregator
    service provisions of TOCSIA. This provision presupposes the
    existence of a sufficient nexus between aggregator and OSP such that
    a contract or tariff would be the appropriate mechanism on which to
    base the oversight requirement. To the extent that a CMRS OSP has a
    contractual relationship with an aggregator of its service, the CMRS
    OSP must have a provision in the relevant contract requiring
    aggregator compliance with TOCSIA and the Commission's related
    rules.[^45] If a CMRS OSP lacks a contractual relationship with an
    aggregator or has no knowledge of the aggregator, the statutory text
    does not require such oversight by the CMRS OSP. Accordingly, PCIA's
    and AT&T Wireless' concerns that it would be impossible for a CMRS
    provider serving a mobile public phone roamer to enforce compliance
    by the owner aggregator of the mobile public phone because the CMRS
    provider will have no contractual or tariff relationship with the
    aggregator, are moot.[^46]

## OSP Identification and Rate Disclosure

20. *Background*. TOCSIA and our regulations also impose a number of
    requirements upon CMRS OSPs. OSPs must identify themselves, audibly
    and distinctly, to the consumer at the beginning of each telephone
    call and before the consumer incurs any charge for the call, a
    practice referred to as "call branding."[^47] OSPs must also permit
    the consumer to terminate a telephone call at no charge before the
    call is connected. They must also disclose immediately to the
    consumer, upon request and at no charge to the consumer, a quotation
    of their rates or charges for the call, the methods by which such
    rates or charges will be collected, and the method by which
    complaints concerning such rates, charges, or collection practices
    will be resolved. Finally, the Commission recently added a
    requirement that OSPs must audibly disclose to consumers how to
    obtain the price of a call before it is connected.[^48]

21. In the *Notice*, the Commission sought additional comment on whether
    the OSP disclosure and call termination requirements are unnecessary
    to protect consumers because CMRS providers\' rates and practices
    are reasonable, competitive market forces motivate CMRS providers to
    offer services at reasonable rates, and CMRS providers generally
    disclose rate information as a matter of sound business practice. In
    addition, given existing billing practices in the CMRS context, it
    sought information on whether, and under what circumstances, end
    users are billed by aggregators, OSPs, or both.

22. *Discussion*. We decline to forbear from applying these TOCSIA
    provisions against CMRS aggregators and OSPs. In the *Notice*, the
    Commission asked questions designed to elicit specific information
    relevant to determining whether and in what respects the Commission
    could forbear from applying these provisions to CMRS providers. We
    find that the record does not justify deviating from the
    Commission's ruling in the *PCIA Forbearance Order* that these
    TOCSIA provisions should apply to the actions of CMRS providers.

23. In the *PCIA Forbearance Order*, the Commission concluded that,
    based on the record at that time, the criteria for forbearance from
    applying OSP identification, disclosure and call termination
    requirements to CMRS OSPs were not satisfied.[^49] The record
    remains insufficient to support the conclusion that enforcement of
    these TOCSIA requirements is not necessary to ensure that the
    charges and practices are just and unreasonable, as required under
    the first prong of Section 10. PCIA contends, for example, that the
    Commission should forbear from enforcing these provisions because
    providers typically act reasonably and disclose their rates as a
    part of good business practices and that deploying call branding
    capabilities is expensive and confusing to consumers in a roaming
    context.[^50] This argument in support of forbearance, however, is
    conclusory and not fully responsive to the specific questions the
    Commission posed in the *Notice*.

24. Further, the record is insufficient to support the conclusion that
    enforcement of these TOCSIA requirements is not necessary to protect
    consumers, as required under the second prong of Section 10. In the
    CMRS context, TOCSIA\'s primary requirement is that an OSP identify
    itself and, upon request, provide information about rates and how to
    file a complaint with the Commission. This branding requirement
    affords clear protection to consumers by ensuring that they have
    basic information needed to decide whether or not to incur charges
    for OSP-supported calls. Removing the requirement could put
    consumers at risk of not having access to this information, which we
    find would be violative of the consumer protection prong of Section
    10.

25. We also find that the record does not support the contention that
    requiring CMRS carriers to brand calls would cause customer
    confusion or impose unacceptably high costs on carriers. PCIA
    contends that branding can cause customer confusion because CMRS
    providers cannot always distinguish between calls from mobile phones
    designed for public use and other calls. GTE similarly contends
    that, absent an ability to identify a call as originating from an
    aggregator, CMRS carriers would have to brand every wireless call in
    order to comply with TOCSIA requirements.[^51] We are not persuaded
    by these arguments. First, while the OSP branding requirement of
    TOCSIA applies to calls initiated from aggregator locations that
    involve automatic or live assistance to the consumer to arrange for
    billing or call completion, it does not apply to calls that are
    automatically completed with billing to the telephone from which the
    call originated, or to calls that are completed through an access
    code used by the consumer, with billing to an account previously
    established with the carrier by the consumer.[^52] Accordingly,
    TOCSIA's branding requirement does not apply to the vast majority of
    wireless calls that consumers make within their home calling areas,
    which are typically automatically completed and billed to the
    caller's telephone.

26. Second, we are not persuaded by PCIA's argument that the branding
    requirement will cause confusion or be unduly burdensome in the
    roaming context. In most cases, roaming is accomplished through
    automatic roaming arrangements that provide for automated completion
    and direct billing of calls. Thus, as in the case of automatically
    placed and billed calls within the caller's home area, automatic
    roaming calls are not subject to TOCSIA. On the other hand, the
    branding requirement does potentially apply to manual roaming calls
    made from aggregator phones, because such calls are not
    automatically billed to the originating number but are typically
    paid for by credit card. PCIA asserts that, in order to comply with
    this requirement, CMRS OSPs would have to brand all roaming calls
    that are not billed to the originating number,[^53] without knowing
    whether the caller is using an aggregator phone. We do not believe
    this to be a significant burden for several reasons. First, because
    manual roaming calls make up a small percentage of all wireless
    calls, the number of calls that will actually require branding is
    quite small. Further, the commenters fail to explain how branding
    all manual roaming calls would result in significant costs to
    carriers or customer confusion. Because manual roaming calls require
    preliminary communication between the OSP and the caller to arrange
    for credit card billing, CMRS OSPs are likely to identify themselves
    and explain their billing requirements to end-user customers in any
    event, and we believe that such identifications and disclosures can,
    with minimal modifications, be made to comply with TOCSIA. In any
    case, we believe that the benefits associated with requiring
    compliance with TOCSIA when manual roaming calls are made from
    aggregator phones outweigh the potential costs that commenters have
    suggested would be associated with ensuring such compliance.
    Moreover, if carriers seek to avoid unnecessary branding of manual
    roaming calls from non-aggregator phones, they are free to devise
    and implement methods to distinguish aggregator from non-aggregator
    calls.

27. Finally, GTE argues that the rate disclosure requirement is of
    little use because the rates charged for wireless public phones are
    typically set by aggregators and that the OSP rates disclosed by the
    OSP would be only a portion of the overall rate for the call.[^54]
    GTE is mistaken about the rate disclosure requirement. The OSP's
    obligation is merely to inform the consumer of the rates it bills
    for and how to obtain the total cost of the call, including any
    aggregator surcharge. The OSP is not obliged to guess the
    aggregator's rate if not billed for by the OSP.[^55] With this
    important rate information from the aggregator and the OSP, the
    consumer can make an informed decision as to whether to place the
    call.[^56]

## Call Splashing

28. *Background*. TOCSIA and the implementing regulations prohibit OSPs
    from engaging in \"call splashing\" or billing for a call that does
    not reflect the originating location of the call without the
    consumer\'s informed consent.[^57] In the *Notice*, the Commission
    sought detailed information on the costs to CMRS OSPs of complying
    with the call splashing prohibition for calls made through
    aggregators and, to the extent that CMRS providers cannot
    distinguish between customers of aggregators and other users, the
    costs of complying with this prohibition on other calls as
    well.[^58]

29. *Discussion*. We decline to forbear from applying the call splashing
    provisions of TOCSIA against OSPs. In the *Notice*, the Commission
    asked questions designed to elicit specific information relevant to
    determining whether and in what respects the Commission could
    forbear from applying these provisions to CMRS providers. We find
    that the record does not justify deviating from the Commission's
    ruling in the *PCIA Forbearance Order* that these TOCSIA provisions
    apply to the actions of CMRS providers. In response to our request
    for comment, PCIA and AT&T Wireless submitted no cost estimates, and
    simply argued that because of flat toll pricing, call splashing,
    even if it occurred, would not adversely affect charges to consumers
    and that there is no evidence of complaints that such a practice has
    been a problem in the CMRS context.[^59] We reject PCIA's and AT&T's
    contention that flat toll pricing has eliminated all possible
    adverse effects of call splashing. Even today, there are many
    wireless calling plans that do not include free long distance
    service and therefore providers will charge distance sensitive rates
    in some instances. Moreover, we believe that any costs of CMRS OSPs
    meeting these requirements are minimal.

30. We also cannot conclude, based on this record, that enforcement of
    these TOCSIA requirements is not necessary to protect consumers, as
    required under the second prong of Section 10. Based on the record
    before us on this issue, which is essentially the same record the
    Commission used in adopting the *Notice*, we make a finding under
    Section 10 that the prohibition of call splashing, unless the
    consumer is informed and consents, continues to protect consumers
    from being billed for calls that do not reflect their originating
    points and allows consumers to make an informed decision to have
    calls splashed.

31. Further, we disagree with the arguments of PCIA that a lack of
    complaints against CMRS aggregators and OSPs necessarily indicate
    the absence of a problem for any of the rules to address.[^60] The
    absence of complaints filed with the Commission is not enough to
    support full forbearance at a time when the market for CMRS
    activities affected by TOCSIA remains limited. Central to the
    operation of the OSP rules is the provision of information to the
    consumer that, if provided, is intended to obviate the need for
    complaints. We therefore find that it is in the public interest to
    continue to apply this requirement to CMRS offerings that are
    subject to TOCSIA and our regulations.

## OSP Publication of Changes in Services

32. *Background*. Pursuant to the relevant provision of TOCSIA,[^61] the
    Commission has required OSPs to regularly publish and make available
    at no cost to inquiring consumers written materials that describe
    any recent changes in operator services and in the choices available
    to consumers in that market.[^62] In the *Notice*, the Commission
    sought comment on the costs and benefits of requiring CMRS OSPs to
    publish regular reports of their changes in light of the nature of
    the services provided, the level of abuses, and carriers' customer
    disclosure practices.

33. *Discussion*. We forbear from applying the OSP publication provision
    of TOCSIA against CMRS OSPs. In this instance, we find that
    enforcement of these TOCSIA requirements is not necessary to ensure
    that charges and practices are just and reasonable or to protect
    consumers. We also find that forbearance from applying these
    requirements is in the public interest.

34. As service providers not bound by rate regulation or publication
    requirements, CMRS carriers are generally not required to publish
    their rates and contract terms even though many of them do in order
    to remain competitive.[^63] Singling out particular CMRS services --
    such as CMRS OSPs -- for disparate treatment does not serve the
    public interest. Fluid and rapid price competition has long typified
    wireless services. This is especially true when the call branding
    and rate disclosure requirements of TOCSIA ensure that consumers of
    CMRS OSP services are given the CMRS OSP identification, terms and
    rate information they need to make an informed decision on whether
    to place a call on a CMRS aggregator phone. More specifically, at
    their request, consumers will be informed of the methods by which
    such rates or charges will be collected and the method by which
    complaints concerning such rates, charges, or collection practices
    will be resolved. The consumer would also be informed of how to
    obtain the price of a call before the call is connected, including
    any aggregator surcharge.[^64] We conclude that these call branding
    and rate disclosure requirements, which require CMRS OSPs to provide
    their identity, and rate or charge information, is sufficient to
    ensure just and reasonable charges and practices from CMRS
    OSPs.[^65] In that regard, we also find that enforcement of the OSP
    publication provision is not necessary for the protection of
    consumers precisely because of the unique incentives CMRS OSPs have
    to advertise their services and make information important to
    consumers available as a matter of sound business practice.[^66] In
    addition, we find that there are important public interest benefits
    associated with reducing regulatory compliance costs (*i.e.*, those
    costs associated with the creation of the required reports,
    databases, personnel training, mailing, *etc*.), in light of the
    fact that those cost reductions can be translated into lower prices
    to consumers.[^67] Finally, however, we encourage CMRS OSPs to
    provide voluntarily to inquiring consumers information that
    describes recent changes in operator services and in the choices
    available to consumers in the CMRS OSP market. We note that CMRS
    OSPs may make this information available to consumers by, for
    example, updating information on their websites.

## Routing of Emergency Calls

35. *Background*. TOCSIA requires that the Commission "establish minimum
    standards for providers of operator services and aggregators to use
    in the routing and handling of emergency telephone calls."[^68]
    Under our rules implementing this provision, OSPs and aggregators
    are required to ensure immediate connection of emergency telephone
    calls to the appropriate emergency service of the reported location
    of the emergency, if known, and if not known, of the originating
    location of the call.[^69]

36. Under the Commission's rules, certain mobile wireless licensees are
    required to implement basic 911 and enhanced 911 (E911)
    services.[^70] Cellular licensees, broadband Personal Communications
    Service (PCS) licensees, and certain Specialized Mobile Radio (SMR)
    licensees,[^71] collectively "covered carriers, [^72]" are required
    to meet basic and enhanced 911 service requirements for completing
    emergency calls, including forwarding all 911 calls without
    delay[^73] and relaying a caller's Automatic Number Identification
    (ANI) and Automatic Location Information (ALI) to the appropriate
    Public Safety Answering Point (PSAP).[^74]

37. *Discussion*. We forbear from applying the emergency call routing
    provision of TOCSIA to CMRS aggregators and OSPs because the current
    E911 regulatory regime, which applies to the vast majority of CMRS
    OSPs, is clearer and more comprehensive than the TOCSIA requirements
    to protect consumers. The E911 rules make more comprehensive
    emergency service requirements applicable to "covered CMRS" carriers
    and we see no reason to also apply the duplicative and potentially
    confusing and conflicting emergency call routing requirements that
    are a part of TOCSIA. In applying the forbearance standard, we first
    find that enforcement of the emergency call routing provision is not
    necessary to ensure just and reasonable charges and practices. Due
    to the potential for conflicting requirements and confusion, we
    believe our current E911 rules better define a standard for
    reasonable practices as they relate to call routing. Second, we find
    that enforcement of the TOCSIA emergency call routing provision is
    not necessary for the protection of consumers, because the more
    stringent E911 requirements will continue to be applicable to
    "covered CMRS" carriers. In this regard we agree with PCIA and AT&T
    Wireless that the rules are duplicative and the E911 rules should
    preempt.[^75] Finally, we find that forbearance from applying
    TOCSIA's emergency call routing provision is consistent with the
    public interest because we are eliminating redundant obligations.

## Other Issues

38. Finally, we note that GTE has requested, as in earlier
    proceedings,[^76] that its Airfone and Railfone services be treated
    differently than other CMRS providers and that the Commission take
    action that reflects "the unique character" of its services.[^77] We
    find no compelling reason to reverse our decision in *PCIA
    Forbearance Order* where we affirmed the decisions in the *GTE
    Declaratory Ruling* that TOCSIA applies to the actions of certain
    GTE affiliates. Consequently, we conclude that GTE's Airfone and
    Railfone services must comply with TOCSIA provisions fully.

39. Omnipoint argues that TOCSIA should not apply to customer
    notification processes associated with a CMRS calling party pays
    (CPP) service or, in the alternative, the Commission should forbear
    from such regulation of CPP.[^78] There is no indication in this
    record or in our experience that CPP services are being provided by
    any CMRS carriers. Further, on April 9, 2001, the Commission
    terminated the calling party pays proceeding. In its *Termination
    Order*,[^79] the Commission stated that regulations were not
    necessary to govern calling party pays services and that lower
    prices and new pricing plans offered many of the same benefits that
    calling party pays services would.[^80] The Commission also stated
    that if the need arose, it could initiate a new proceeding and
    gather a fresh record to consider rules to govern the offering of
    calling party pays services.[^81] In light of this, we find no
    reason to resolve Omnipoint's arguments in this proceeding. We can
    resolve CPP/TOCSIA issues if and when we initiate a new calling
    party pays proceeding.

# ORDERING CLAUSE

40. Accordingly, IT IS ORDERED that, pursuant to sections 4(i), 4(j), 10
    and 11 of the Communications Act of 1934, as amended, 47 U.S.C.
    sections 154(i), 154(j), 160 and 161, this Second Report and Order
    IS ADOPTED.

    FEDERAL COMMUNICATIONS COMMISSION

    Marlene H. Dortch

    Secretary

[^1]: 47 U.S.C. § 226.

[^2]: Personal Communications Industry Association's Broadband Personal
    Communications Services Alliance's Petition for Forbearance For
    Broadband Personal Communications Services, *Memorandum Opinion and
    Order and Notice of Proposed Rulemaking*, 13 FCC Rcd 16857 (1998)
    (*PCIA Forbearance Order and Notice*), *recon*. *denied*, FCC 99-250
    (rel. Sept. 27, 1999). Although the *PCIA Forbearance Order* and the
    *Notice* are in the same document, we refer to the *PCIA Forbearance
    Order* and the *Notice* as if they were separate documents.

[^3]: *See PCIA Forbearance Order and Notice*, 13 FCC Rcd at 16894, ¶
    75.

[^4]: 47 U.S.C. §§ 160, 332(c)(1)(A).

[^5]: 47 C.F.R. §§ 64.703 -- 64.709.

[^6]: On September 8, 2000, in the First Report and Order in this
    proceeding (*First Report and Order*), the Commission addressed the
    various proposals set forth in the comments to the *Notice* and in
    the *PCIA Letters*, other than those dealing with TOCSIA.
    Forbearance from Applying Provisions of the Communications Act to
    Wireless Telecommunications Carriers, WT Docket No. 98-100, *First
    Report and Order*, 15 FCC Rcd 17414 (2000).

[^7]: Although the record in this proceeding is five years old, no party
    has provided us with information, during this period, to persuade us
    that the market for public mobile phones has changed in ways that
    make application of TOCSIA a hardship for CMRS service providers.
    Moreover, to the extent changes have occurred in the public mobile
    phone market since we released *PCIA Forbearance Order and Notice*,
    nothing in the record leads us to conclude that these changes are
    relevant to the issues we are addressing in the proceeding.

[^8]: 47 U.S.C. § 160(a). In determining whether forbearance is
    consistent with the public interest, we consider whether forbearance
    will promote competitive market conditions, including whether it
    will enhance competition among existing telecommunications service
    providers. 47 U.S.C. § 160(b).

[^9]: 47 U.S.C. §226(a)(2); 47 C.F.R. § 64.708.

[^10]: 47 U.S.C. § 226(a)(9); 47 C.F.R. § 64.708(l).

[^11]: 47 U.S.C. § 226(c)(1)(A)(i); 47 C.F.R. § 64.703(b)(1). A
    \"presubscribed OSP\" is the OSP to which the consumer is connected
    when the consumer places a call using a public telephone without
    dialing an access code. *See* 47 U.S.C. § 226(a)(8); 47 C.F.R. §
    64.708(h). In the landline context, aggregators generally enter into
    a contract with an OSP and receive a commission from the OSP for the
    arrangement.

[^12]: 47 U.S.C. § 226(c)(1)(A)(ii); 47 C.F.R. § 64.703(b)(2).

[^13]: 47 C.F.R. § 64.703(b)(3).

[^14]: 47 U.S.C. § 226(c)(1)(A)(iii); 47 C.F.R. § 64.703(b)(4).

[^15]: 47 U.S.C. § 226(b)(1)(A); 47 C.F.R. § 64.703(a)(1).

[^16]: 47 U.S.C. § 226(b)(1)(C); 47 C.F.R. § 64.703(a)(3).

[^17]: 47 U.S.C. § 226(b)(1)(B); 47 C.F.R. § 64.703(a)(2).

[^18]: 47 U.S.C. § 226(b)(1)(F-G); 47 C.F.R. § 64.705(a)(1-2).

[^19]: \"Call splashing\" means the transfer of a telephone call from
    one OSP to another in such a manner that the subsequent OSP is
    unable or unwilling to determine the location or the origination of
    the call and because of such inability or unwillingness, is
    prevented from billing the call on the basis of such location. 47
    U.S.C. § 226(a)(3); 47 C.F.R. § 64.708(c).

[^20]: 47 U.S.C. § 226(b)(1)(H); 47 C.F.R. § 64.705(a)(3).

[^21]: 47 U.S.C. § 226(b)(1)(I); 47 C.F.R. § 64.705(a)(4).

[^22]: 47 C.F.R. § 64.703(a)(4); *See* Billed Party Preference for
    InterLATA 0+ Calls, Second Report and Order and Order on
    Reconsideration, 13 FCC Rcd 6122 (1998).

[^23]: 47 U.S.C. § 226(b)(1)(D-E); 47 C.F.R. §§ 64.703(e), 64.704(b),
    64.705(a)(5).

[^24]: 47 C.F.R. § 64.707. *See also* 47 U.S.C. § 226(d)(3)(B).

[^25]: 47 C.F.R. § 64.706. *See also* 47 U.S.C. § 226(d)(3)(A).

[^26]: *See PCIA Forbearance Order and Notice*, 13 FCC Rcd at 16894, ¶
    75.

[^27]: *PCIA Forbearance Order and Notice*, 13 FCC Rcd at 16903, ¶ 96.

[^28]: *PCIA Forbearance Order and Notice*, 13 FCC Rcd at 16899-900, ¶¶
    87-88.

[^29]: In the *GTE Declaratory Ruling,* the Common Carrier Bureau found
    that GTE Airfone, GTE Railfone, and GTE Mobilnet are subject to
    TOCSIA. *Declaratory Ruling*, 8 FCC Rcd 6171 (Comm. Carr. Bur. 1993)
    (*GTE Declaratory Ruling*). The Bureau concluded that Airfone,
    Railfone, and Mobilnet, all GTE subsidiaries, were aggregators
    within the meaning of TOCSIA because "in the ordinary course of
    \[their\] operations, \[they\] make \[\] telephones available to the
    public or to transient users of \[their\] premises, for interstate
    telephone calls." The Common Carrier Bureau also found that it was
    immaterial to the applicability of TOCSIA that these telephones are
    not at fixed locations, and that the telephones provided by the GTE
    subsidiaries are not courtesy telephones, because the consumer, not
    the telephone provider, pays for the cost of the call.

[^30]: *PCIA Forbearance Order and Notice*, 13 FCC Rcd at 16900-10, ¶¶
    89-110.

[^31]: GTE Comments filed August 3, 1998.

[^32]: PCIA Comments filed August 3, 1998.

[^33]: Omnipoint Comments filed August 3, 1998.

[^34]: AT&T Wireless Ex Parte filed December 11, 2002.

[^35]: *See PCIA Forbearance Order and Notice*, 13 FCC Rcd at 16900, ¶
    89.

[^36]: ^ ?^ 47 C.F.R. § 64.703(b)(3).

[^37]: 47 U.S.C. § 226(c)(1)(A)(iii); 47 C.F.R. § 64.703(b)(4).

[^38]: *PCIA Forbearance Order and Notice*, 13 FCC Rcd at 16903, ¶ 96.

[^39]: *PCIA Forbearance Order and Notice*, 13 FCC Rcd at 16903-04, ¶
    97.

[^40]: *Id*.

[^41]: We note that before TOCSIA was enacted, we proposed to afford
    aggregators the option of meeting their disclosure obligations by
    giving printed documentation to the customer in person. We provided
    as examples that a customer at a hotel or a patient at a hospital
    could be given the required information while checking in. Policies
    and Rules Concerning Operator Service Providers, *Notice of Proposed
    Rule Making*, 5 FCC Rcd. 4630, 4632, ¶ 17 (1990) (*OSP Notice*).
    These examples, however, would apply only in the wireless context to
    CMRS aggregators, not in the wireline context. We will continue to
    require all non-CMRS aggregators to comply with the posting
    requirement of 47 C.F.R. § 64.703(b) as described in Policies and
    Rules Concerning Operator Service Providers, *Report and Order*, 6
    FCC Rcd. 2744, 2759, ¶ 36 (1991) (*TOCSIA Implementing Order*).

[^42]: *PCIA Forbearance Order and Notice*, 13 FCC Rcd at 16905, ¶ 100.

[^43]: *Id*.

[^44]: See 47 U.S.C. § 226(b)(1)(D).

[^45]: *Id*. In 1994, the Commission adopted a mandatory detariffing
    policy for providers of domestic CMRS and reiterated its conclusion
    that "non-dominant carriers are unlikely to behave
    anticompetitively, in violation of Sections 201(b) and 202(a) of the
    Act, because they recognize that such behavior would result in a
    loss of consumers." Implementation of sections 3(n) and 332 of the
    Communications Act, Regulatory Treatment of Mobile Services, GN
    Docket No. 93-252, *Second Report and Order*, 9 FCC Rcd 1411, 1478
    (1994), *citing*, Policy and Rules Concerning Rates for Competitive
    Common Carrier Services and Facilities Authorizations, *First Report
    and Order*, 85 FCC 2d 1, 31.

[^46]: PCIA Comments at 9.

[^47]: Call branding "is the process by which an OSP audibly and
    distinctly identifies itself to every person who uses its operator
    services." *OSP Notice*, 5 FCC Rcd at 4632. The OSP is required to
    brand the call at the beginning of each call and again before the
    customer incurs any charge for the call. *See* 47 C.F.R. §§
    64.703(a), 64.703(c); 47 U.S.C. § 226(b)(1)(A). *GTE Declaratory
    Order*, 8 FCC Rcd at 6172, note 16.

[^48]: 47 C.F.R. § 64.703(a)(4).

[^49]: *See PCIA Forbearance Order and Notice*, 13 FCC Rcd at 16906, ¶
    102, citing, *PCIA Forbearance Order and Notice*, 13 FCC Rcd at
    16898-99, ¶ 86.

[^50]: PCIA Comments at 13.

[^51]: GTE Comments at 11.

[^52]: 47 U.S.C. § 226(a)(7).

[^53]: PCIA Comments at 13.

[^54]: GTE Comments at 8-9.

[^55]: 47 U.S.C. § 226(b)(1)(C).

[^56]: In the *Notice*, the Commission sought comment on TOCSIA's
    provision prohibiting OSPs from billing for unanswered telephone
    calls. *See* *PCIA Forbearance Order and Notice*, 13 FCC Rcd at
    16907-8, ¶ 105. We find, pursuant to 47 U.S.C. § 226(b)(1)(F-G) and
    47 U.S.C. § 332(c)(8), that the billing for unanswered calls
    provision of TOCSIA does not apply to CMRS carriers, and this issue
    is, therefore, moot in the CMRS context.

[^57]: 47 U.S.C. § 226(b)(1)(H-I); 47 C.F.R. § 64.705(a)(3-4). \"Call
    splashing\" occurs when a call is transferred from one OSP to
    another, and the second OSP cannot determine the origination point
    of the call, and the customer's bill reflects a different
    origination point (and possibly, different charges). 47 U.S.C. §
    226(a)(3); 47 C.F.R. § 64.708(c). Example:

    > A consumer in a hotel in Washington D.C. wishes to place a call
    > using a calling card from her chosen interexchange carrier (IXC)
    > to Baltimore, MD. The presubscribed OSP for that hotel is based in
    > Chicago. The OSP is unable to accept the calling card, so the
    > caller asks the OSP to transfer the call to an operator of her
    > chosen IXC. The operator of the consumer's carrier of choice is
    > unaware that the call is originating in Washington. The customer
    > is, therefore, billed for a call from Chicago to Baltimore, rather
    > than from Washington to Baltimore.

    Call splashing is allowed when the consumer requests to be
    transferred to another OSP, the consumer is notified in advance that
    the rates for the call may not reflect the rates from the actual
    originating location of the call, and the consumer thereafter
    consents to be transferred. *See* 47 C.F.R. § 64.705(a)(3); 47
    U.S.C. § 226(b)(1)(H).

[^58]: *PCIA Forbearance Order and Notice*, 13 FCC Rcd at 16909, ¶ 107.

[^59]: PCIA Comments at 14-15.

[^60]: PCIA Comments at 2.

[^61]: 47 U.S.C. §226(d)(3)(B).

[^62]: 47 C.F.R. § 64.707.

[^63]: 47 C.F.R. § 42.11(a). This is contrasted by the publication
    requirements imposed on wireline carriers. 47 C.F.R. § 42.10 and 47
    C.F.R. § 42.11.

[^64]: 47 C.F.R. § 64.703(a)(4). We also note that the aggregator, in
    its disclosure, will provide the consumer with the name and
    toll-free telephone number of the aggregator's OSP.

[^65]: Often, CMRS OSPs find they must publish their rates and contract
    terms in advertising in order to attract new customers in this
    highly competitive market. PCIA Comments at 16.

[^66]: PCIA Comments at 15-16.

[^67]: See PCIA Comments at 16.

[^68]: 47 U.S.C. § 226(d)(3)(A).

[^69]: 47 C.F.R. § 64.706.

[^70]: ^?^ *See* Revision of the Commission's Rules to Ensure
    Compatibility With Enhanced 911 Emergency Calling Systems, CC Docket
    No. 94-102, *Report and Order and Further Notice of Proposed
    Rulemaking*, 11 FCC Rcd. 18676 (1996) (*E911 First Report and
    Order*).

[^71]: The Commission's E911 requirements covered only SMR licensees
    that held either licenses or authorizations to operate 800 MHz or
    900 MHz service. *E911 First Report and Order*, 11 FCC Rcd 18676,
    18716-18 at paras. 80-84. "Covered SMR" also included those 800/900
    MHz SMR licensees that offered real-time, two-way switched voice
    service that was interconnected with the public switched network,
    either on a stand-alone basis or packaged with other
    telecommunications services. *E911 First Report and Order*, 11 FCC
    Rcd 18676, 18716-18 at paras. 80-84.

[^72]: *Id*. at 18716-18 paras. 80-84.

[^73]: *See E911 First Report and Order*, 11 FCC Rcd at 18692-97 paras.
    29-42 (requiring covered carriers to transmit all 911 calls without
    subjecting them to any call validation procedures). Covered carriers
    are defined as licensees (1) that offered real-time, two-way
    switched voice service, interconnected with the public switched
    network, either on a stand-alone basis or packaged with other
    telecommunications services; (2) whose customers clearly expected
    access to 911 and E911; (3) that competed with analog and broadband
    PCS providers; and (4) where it is technically and operationally
    feasible to provide enhanced 911 service.

[^74]: *E911 First Report and Order*, 11 FCC Rcd 18676, 18689-18722
    paras. 24-91. Recognizing the need for vigorous implementation of
    the E911 requirements, the Commission adopted a phased
    implementation plan for the covered carriers. Phase I
    implementation, which requires a covered carrier to transmit a 911
    caller's call-back number and cell site to the appropriate PSAP,
    began on April 1, 1998. *See* 47 C.F.R. § 20.18(d). Phase II
    implementation, which requires a covered carrier to transmit a 911
    caller's location information to the appropriate PSAP, began on
    October 1, 2001. *See* 47 C.F.R. § 20.18 (e), (h).

[^75]: *Id*.

[^76]: *See* *PCIA Forbearance Order and Notice*, 13 FCC Rcd at
    16899-900, ¶¶ 87-88. See *GTE Declaratory Order*, 8 FCC Rcd at 6173,
    ¶¶ 8-11, 31.

[^77]: GTE Comments at 13. Specifically, in the Railfone context, GTE
    urges the Commission to: 1) forbear from enforcing the call branding
    requirement; 2) require only 800 access; and 3) forbear from
    enforcing the requirement that OSPs and aggregators ensure the
    immediate connection of emergency telephone calls. In the Airfone
    context, GTE urges the Commission to: 1) find that Airfone's method
    of informing customers of its identity is sufficient (GTE claims
    that it identifies itself to callers through literature made
    available to passengers, through words printed on handsets or
    appearing on LCD screens, and through seat pocket cards.); 2)
    require only 800 access; and 3) forbear from enforcing the
    requirement that OSPs and aggregators ensure the immediate
    connection of emergency telephone calls. GTE Comments at 13.

[^78]: Omnipoint Comments at 1.

[^79]: Calling Party Pays Service Offering in the Commercial Mobile
    Services, WT Docket No. 97-207, *Memorandum Opinion and Order on
    Reconsideration and Order Terminating Proceeding*, 16 FCC Rcd 8297
    (2001) (*Termination Order*).

[^80]: *Termination Order*, 16 FCC Rcd at 8304-5, ¶ 24.

[^81]: *Id*.