U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

1 

39–010 

" ! SENATE 108TH CONGRESS

2d Session 

REPORT

2004

108–423 

Calendar No. 810 

WIRELESS 411 PRIVACY ACT 

R E P O R T 

OF THE

COMMITTEE ON COMMERCE, SCIENCE, AND 

TRANSPORTATION 

ON

S. 1963 

together with 

MINORITY VIEWS 

DECEMBER 7, 2004.—Ordered to be printed 


congress.#13
(II) 

SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION 

ONE HUNDRED EIGHTH CONGRESS

SECOND SESSION

JOHN MCCAIN, Arizona, Chairman 

TED STEVENS, Alaska 

CONRAD BURNS, Montana 

TRENT LOTT, Mississippi 

KAY BAILEY HUTCHISON, Texas 

OLYMPIA J. SNOWE, Maine 

SAM BROWNBACK, Kansas 

GORDON SMITH, Oregon 

PETER G. FITZGERALD, Illinois 

JOHN ENSIGN, Nevada 

GEORGE ALLEN, Virginia 

JOHN E. SUNUNU, New Hampshire 

ERNEST F. HOLLINGS, South Carolina 

DANIEL K. INOUYE, Hawaii 

JOHN D. ROCKEFELLER IV, West Virginia 

JOHN F. KERRY, Massachusetts 

JOHN B. BREAUX, Louisiana 

BYRON L. DORGAN, North Dakota 

RON WYDEN, Oregon 

BARBARA BOXER, California 

BILL NELSON, Florida 

MARIA CANTWELL, Washington 

FRANK LAUTENBERG, New Jersey 

JEANNE BUMPUS, Staff Director and General Counsel 

ROB FREEMAN, Deputy Staff Director 

SAMUEL WHITEHORN, Democratic Staff Director and Chief Counsel 

MARGARET SPRING, Democratic Senior Counsel 

Calendar No. 810 

108TH CONGRESS REPORT " ! SENATE 2d Session 108–423 

WIRELESS 411 PRIVACY ACT 

DECEMBER 7, 2004.—Ordered to be printed 

Mr. MCCAIN, from the Committee on Commerce, Science, and 

Transportation, submitted the following 

R E P O R T 

together with 

ADDITIONAL VIEWS 

[To accompany S. 1963] 

The Committee on Commerce, Science, and Transportation, to 

which was referred the bill (S. 1963) to amend the Communications 

Act of 1934 to protect the privacy rights of subscribers to wireless 

communications services, having considered the same, reports favorably thereon with an amendment (in the nature of a substitute) 

and recommends that the bill (as amended) do pass. 

PURPOSE OF THE BILL

The purpose of this legislation is to amend section 332(c) of the 

Communications Act of 1934 (47 U.S.C. 332(c)) by adding a new 

paragraph (9) to: (1) require providers of wireless directory assistance services to obtain the express prior authorization of a subscriber before listing his or her wireless telephone number in a directory assistance database; (2) require such providers to remove 

the wireless telephone number of any subscriber from any directory 

assistance database upon request and without any charge to the 

subscriber; (3) require telecommunications carriers to avoid disclosing on their customer bills any wireless telephone numbers of 

consumers who have indicated such a preference to their wireless 

carriers; (4) prohibit the publishing (in printed, electronic, or other 

form), sale, or other dissemination of a wireless telephone number 

without consent; and (5) prohibit wireless directory assistance proVerDate Aug 04 2004 02:25 Dec 10, 2004 Jkt 039010 PO 00000 Frm 00003 Fmt 6659 Sfmt 6602 E:\HR\OC\SR423.XXX SR423
2 

1Kathleen A. Pierz, Adding Mobile Numbers to the U.S. Directory Assistance/Enquiry Database, p. 48 (June 30, 2004). 2Kathleen A. Pierz, Consumers and the Mobile 411 Directory: A National Consumer Research 

Study to Assess Consumer Attitudes toward Adding Mobile Numbers to the Directory Assistance/Enquiry Database (‘‘Consumer Research Study’’), p. 15 (August 30, 2004). 

viders from charging consumers for exercising any of their rights 

provided under this legislation. 

BACKGROUND AND NEEDS

Wireless service providers have developed plans to create a nationwide directory of wireless telephone numbers for those subscribers who wish to be reachable on their wireless phones through 

directory assistance services, also known as ‘‘411’’ services. Some 

wireless subscribers, including consumers without wireline phones, 

professionals working outside an office environment, and small 

business owners providing services away from a central location, 

are increasingly requesting that service providers make their numbers more widely available to the public. Industry efforts to create 

a nationwide directory, however, have raised privacy concerns for 

consumers who wish to keep their wireless phone numbers private, 

and who are uncertain whether they will be provided with a choice 

to do so under proposed directory services. 

According to The Pierz Group, an independent research and 

analysis group examining wireless directory services, an estimated 

4.8 million wireless subscribers (or approximately 3 percent of 

wireless subscribers nationwide) have listed their phone numbers 

in a published directory—either in phone books or in directories 

used for operator services. The Pierz Group found that a majority 

of these listings are for subscribers, such as contractors and other 

home service professionals, whose businesses require them to travel within a particular geographic region where their customers are 

located. 1 Additionally, a survey released by The Pierz Group on 

August 30, 2004, found that 11 percent, or nearly 18 million wireless subscribers, would list their numbers in public directories 

without any privacy protections if those services were offered by 

wireless carriers today. According to the report, this represents a 

five-fold increase over the past year (from 2 percent to 11 percent) 

of wireless subscribers that would now publicly list their wireless 

numbers without any privacy protections. The Pierz Group believes 

a principal reason for this result is increased consumer confidence 

in the enforcement of telemarketing rules following the effective 

implementation of the national Do-Not-Call registry in 2003. 2

Despite the demand for listing by a small number of subscribers 

even without privacy protections, participating wireless carriers 

have pledged to address broader consumer concerns about wireless 

number privacy by taking steps to protect consumers’ privacy preferences. Some consumer privacy groups, however, continue to raise 

concerns over the risks of creating a large, multi-carrier database 

of wireless numbers and whether industry’s proposals to include 

privacy protections are sufficient. 

Since wireless telephone service was first introduced, wireless 

consumers have considered their numbers private and assumed 

they retained ultimate control over who would have access to their 

telephone numbers. In addition, because wireless customers in the 

U.S. pay for all in- and out-bound calls (unlike European markets 

3 

where the calling party pays), concerns still remain about consumers incurring unwanted charges or exhausting allotted minutes 

of use by receiving calls they do not want, even if they have large 

buckets of minutes included in their service package and therefore 

charges would likely be minimal. Given the industry’s expressed 

pledge to provide privacy protections sought by consumer and privacy groups is whether privacy requirements and consumer protections should be required by law, or whether market forces are sufficient to protect consumers. 

The primary concerns surrounding the wireless number directory 

center over two issues: who would have access to subscribers’ numbers, and what hurdles (including additional costs) face subscribers 

who decide to have their numbers omitted from such a directory? 

Proponents of the wireless phone directory assert that the vendor 

chosen to implement the directory is currently working with carriers to ensure that the database they put in place will be secure 

and responsive to consumer concerns about preventing or limiting 

general accessibility to their listed wireless number and related 

subscriber information. In particular, participating carriers have 

indicated that the wireless directory services they are proposing 

would take some or all of the following measures to protect consumer privacy: 

• provide robust notice and choice to their subscribers regarding any proposed directory services, ensuring that subscribers 

must first opt in before their numbers are listed in any directory assistance database; 

• enable subscribers to keep their numbers out of a directory 

assistance database at no additional charge; 

• prohibit sharing of subscriber numbers with third parties, 

particularly telemarketers; and 

• prohibit the publishing in written, electronic, or otherwise 

web-accessible form of any subscriber numbers listed in a directory. 

According to The Pierz Group’s most recent survey, if these protections were guaranteed, up to 52 percent of wireless subscribers, 

or 84.2 million customers, would be willing to list their wireless 

phone numbers in a directory assistance service. 

Although the participating national wireless carriers have committed to voluntarily adopt the privacy and consumer protections 

outlined above, consumer and privacy advocates argue that these 

policies have yet to appear in many of the contracts governing the 

terms of service between the wireless carriers and their new or existing customers. 

National wireless carriers who are participating in the proposed 

multi-company directory and have agreed to these standards believe that preemptive legislation mandating such requirements is 

unnecessary in the competitive wireless industry, and that it will 

restrict carriers from creating more robust business-driven solutions to meet consumer demands as they evolve. Consumer and privacy rights activists advocate the same privacy measures being 

considered by the carriers, but argue that Congress should establish legally binding baseline requirements to ensure that wireless 

companies do not alter their policies as their business models 

change. 

4 

LEGISLATIVE HISTORY

On November 25, 2003, Senator Specter introduced S. 1963, the 

‘‘Wireless 411 Privacy Act’’. The bill is currently cosponsored by 

Senators Boxer, Dayton, Enzi, Kennedy, Lautenberg, Leahy, Nelson, and Schumer. Identical legislation was also introduced in the 

108th Congress in the Senate by Senator DeWine (S. 1973) and in 

the House of Representatives by Rep. Pitts (H.R. 3558). Both Senate bills, S. 1963 and S. 1973, were referred to the Committee on 

Commerce, Science, and Transportation. 

On September 21, 2004, the Committee held a hearing on S. 

1963. Witnesses at the hearing included Senator Specter as well as 

a diverse group of representatives from several companies, an industry association, a public interest group, and a private party, all 

interested in the privacy regulation of wireless directory assistance 

services. 

On September 22, 2004, the Committee met in open executive 

session to consider an amendment in the nature of a substitute to 

S. 1963 offered by Senator Boxer that made several substantive 

changes to the bill’s provisions, as introduced. The amendment was 

adopted by a roll call vote of 12–10 and the bill was ordered to be 

reported, as amended. 

ESTIMATED COSTS

In accordance with paragraph 11(a) of rule XXVI of the Standing 

Rules of the Senate and section 403 of the Congressional Budget 

Act of 1974, the Committee provides the following cost estimate, 

prepared by the Congressional Budget Office: 

S. 1963—Wireless 411 Privacy Act 

S. 1963 would prohibit wireless telephone providers from listing 

subscribers’ numbers in a directory unless the subscribers have authorized such services. Wireless telephone providers also would be 

required to remove a subscriber’s number from any wireless directory assistance database if requested by a subscriber and without 

any charge to that subscriber. 

Enacting S. 1963 could affect direct spending and receipts because providers who violate the provisions of the bill could be subject to civil or criminal penalties. Based on information from the 

Federal Communications Commission, CBO expects that there 

would be few violations of the bill’s provisions. Thus, CBO estimates that any collections for civil or criminal penalties would not 

be significant. In addition, because the agency expects a relatively 

high degree of compliance with the bill’s provisions, CBO estimates 

that any costs associated with the enforcing the bill’s requirements, 

which would be subject to the availability of appropriated funds, 

would not be significant. 

S. 1963 contains intergovernmental mandates as defined in the 

Unfunded Mandates Reform Act (UMRA), but CBO estimates that 

the resulting costs for state, local, and tribal governments would be 

minimal and would not exceed the threshold established in UMRA 

($60 million in 2004, adjusted annually for inflation). Section 3(F) 

would specifically preempt state and local laws that require wireless telephone providers to publish directories of the numbers they 

serve. CBO is not aware of any such laws—based on conversations 

5 

with state and local officials—and states generally are moving toward the standard that would be established in S. 1963. Therefore, 

CBO estimates that any associated costs would be minimal. 

CBO has not completed an analysis of the private-sector mandates in the bill. That analysis will be provided later in a separate 

report. 

The CBO staff contacts for this estimate are Susanne S. 

Mehlman (for federal costs), and Sarah Puro (for the state, local, 

and tribal impact). This estimate was approved by Peter H. 

Fontaine, Deputy Assistant Director for Budget Analysis. 

REGULATORY IMPACT STATEMENT

In accordance with paragraph 11(b) of rule XXVI of the Standing 

Rules of the Senate, the Committee provides the following evaluation of the regulatory impact of the legislation, as reported: 

NUMBER OF PERSONS COVERED

S. 1963 would establish Federal requirements regarding the use 

of consumers’ wireless telephone numbers in directory assistance 

databases provided by wireless service providers and their affiliates 

or agents. In this respect, the bill would cover any consumer or provider of a wireless telephone service in the United States for which 

a telephone number is used. Additionally, S. 1963 requires every 

telecommunications carrier to not disclose in its billing information 

provided to customers any wireless telephone number information 

of subscribers who wish to keep that information private. Therefore, the legislation would also cover every subscriber of telecommunications services that receives billing information about 

calls made to or from wireless telephone numbers, and any carrier 

that provides such information to its subscribers. 

ECONOMIC IMPACT

S. 1963 would require that wireless carriers providing directory 

assistance services containing subscribers’ telephone numbers (1) 

comply with federally mandated notice, consent and removal standards in order to provide the service, (2) refrain from charging consumers for certain related services, including any election to keep 

their numbers unlisted, (3) refrain from publishing, in printed, 

electronic, or other form, or selling or otherwise disseminating any 

contents of directory assistance service databases, and (4) establish 

methods to relay information about its subscribers’ privacy preferences (with respect to their wireless telephone numbers) to other 

telecommunications carriers that may publish the full number in a 

customer billing statement. Although one national wireless carrier 

has indicated it will not provide such directory assistance services 

and other national carriers have indicated that they would provide 

these services only under substantially similar restrictions, the legislation would nonetheless create compliance costs on such providers, as well as all telecommunications carriers whose customer 

bills may disclose wireless telephone numbers, in the form of equipment upgrades or personnel additions in order to meet the new 

Federal requirements. Such expenditures may have an economic 

impact on such businesses and the wireless industry in general, 

and the costs may be passed on to consumers of wireless and other 

6 

telecommunications services. However, according to The Pierz 

Group, the introduction of a wireless directory assistance service is 

estimated to bring in nearly $2 billion in incremental revenues for 

the industry by 2008, which would be generated from additional 

calls to directory assistance services as well as from additional 

minutes of use on the network. These projected revenues may offset many of the potential costs resulting from this legislation. 

PRIVACY

S. 1963 would likely increase consumer privacy by restricting the 

use and publication of wireless telephone numbers in directory assistance databases absent strict requirements that consumers are 

sufficiently informed and consent to such use or publication. Such 

restrictions should result in a reduced likelihood of wireless subscribers receiving unwanted telephone calls. In this regard, the legislation is similar to the stated privacy goals of existing telemarketing regulations, which already ban autodialed telemarketing 

calls (including text messages) to wireless telephones. Additionally, 

because the legislation would prohibit wireless service providers 

from charging a fee to keep consumers’ numbers unlisted (a practice permitted for wireline local exchange carriers), it is likely that 

more consumers will choose to keep their wireless telephone numbers private by not participating in the wireless directory assistance service. 

PAPERWORK

S. 1963 is expected to have minimal or no impact on current paperwork levels. 

SECTION-BY-SECTION ANALYSIS

Section 1. Short title 

Section 1 would set forth the short title of the bill as the ‘‘Wireless 411 Privacy Act.’’ 

Section 2. Findings 

Section 2 would set forth Congress’s factual findings in support 

of the legislation. 

Section 3. Consumer control of wireless phone numbers 

Section 3 would amend section 332(c) of the Communications Act 

of 1934 (47 U.S.C. 332(c)) by adding a new paragraph 9 to provide 

for wireless consumer privacy protection. 

Subparagraph (A) of paragraph (9) would prohibit wireless carriers (and their direct or indirect affiliates or agents) from including wireless telephone information of any current subscriber in any 

directory assistance database unless: (1) the carrier first provides 

a separate, conspicuous notice to the wireless subscriber of the 

right not to be listed, and (2) the carrier obtains express prior authorization from the subscriber to be included in the directory and 

such authorization has not been subsequently withdrawn. 

Subparagraph (B) of paragraph (9) would require wireless carriers (and their direct or indirect affiliates or agents) to remove the 

wireless telephone number of any subscriber from any directory asVerDate Aug 04 2004 02:25 Dec 10, 2004 Jkt 039010 PO 00000 Frm 00008 Fmt 6659 Sfmt 6602 E:\HR\OC\SR423.XXX SR423
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sistance database upon request and without any charge to the subscriber. 

Subparagraph (C) of paragraph (9) would prohibit telecommunication carriers from disclosing in customer bills any wireless telephone number that a wireless subscriber has requested of its own 

wireless carrier to not disclose. Subparagraph (C), however, would 

permit telecommunications carriers to disclose a portion of such a 

wireless number so long as the actual number could not be readily 

ascertained, a practice sometimes referred to as ‘‘masking’’ (i.e., 

such a wireless number may appear on a bill as ‘‘202–228–XXXX’’ 

or in some similarly masked fashion). 

Subparagraph (D) of paragraph (9) would prohibit wireless carriers (and their direct or indirect affiliates or agents) from publishing, in printed, electronic, or other form, or from selling or otherwise disseminating, the contents of any wireless directory assistance service database (or any portion or segment of one) unless: (1) 

the carrier first provides a separate, conspicuous notice to the wireless subscriber of the right not to be listed, and (2) the carrier obtains express prior authorization from the subscriber to be included 

in the directory and such authorization has not been subsequently 

withdrawn. 

Subparagraph (E) of paragraph (9) would prohibit wireless carriers from charging subscribers a fee for exercising any of their 

rights provided under this section (i.e., choosing to not participate 

in a wireless directory assistance database). 

Subparagraph (F) of paragraph (9) would preempt State and 

local government imposition of requirements on wireless carriers 

(and their direct or indirect affiliates or agents) that are inconsistent with the requirements of paragraph (9). 

Subparagraph (G) of paragraph (9) would set forth certain definitions for use in this section. In particular, ‘‘wireless directory assistance service’’ means any service that connects a calling party to 

a wireless subscriber when such calling party does not already possess such subscriber’s wireless telephone number information. Additionally, ‘‘wireless telephone number information’’ means the telephone number, electronic address, and any other identifying information by which a calling party may reach a wireless subscriber, 

including such subscriber’s name and address. 

ROLLCALL VOTES IN COMMITTEE

In accordance with paragraph 7(c) of rule XXVI of the Standing 

Rules of the Senate, the Committee provides the following description of the record votes during its consideration of S. 1963: 

Senator Boxer offered an amendment in the nature of a substitute. By a rollcall vote of 12 yeas and 10 nays as follows, the 

amendment was adopted: 

YEAS—12 NAYS—10 

Mrs. Hutchison Mr. Stevens1

Ms. Snowe Mr. Burns 

Mr. Hollings Mr. Lott 

Mr. Inouye1 Mr. Brownback1

Mr. Rockefeller Mr. Smith 

Mr. Breaux Mr. Fitzgerald1

Mr. Dorgan Mr. Ensign 

8 

Mr. Wyden Mr. Allen 

Mrs. Boxer Mr. Sununu 

Mr. Nelson Mr. McCain 

Ms. Cantwell 

Mr. Lautenberg 

1By proxy 

(9) 

1 Implementation of Section 6002(b) of the Omnibus Budget Reconciliation Act of 1993; Annual 

Report and Analysis of Competitive Market Conditions With Respect to Commercial Mobile 

Service, Ninth Report, FCC 04–216 ¶20 & Table 4 (rel. Sept. 28, 2004). 

MINORITY VIEWS OF SENATOR ALLEN 

S. 1963 is unnecessary and counterproductive for an industry 

that has a proven track record of innovation, lower prices, and protecting consumer privacy. The six largest wireless carriers, representing more than three-quarters of all subscribers, 1 have specifically committed to this Committee that they will safeguard the 

privacy of wireless phone numbers, either by creating a directory 

assistance database that includes only the numbers of subscribers 

who affirmatively choose to be listed through an opt-in method or 

by not participating in any wireless directory assistance program. 

Those carriers who are planning a database have further committed not to charge subscribers who elect to keep their wireless 

numbers unlisted or if they elect to remove their numbers from the 

database. In testimony before the Committee, the wireless industry 

also assured us that wireless numbers from the directory assistance database will not be published in a directory and that the aggregated database will not be sold to any third-party or be available anywhere on the Internet. Finally, child privacy will be protected because customers must be 18 years or older to sign a contract and choose whether to be listed in the database. In the face 

of these commitments, I see no need for the bill. 

Legislating in advance of any evidence of a problem is not only 

unnecessary in this case, it is also counterproductive. The wireless 

industry has thrived in the deregulatory environment established 

by Congress in 1993 and is now one of the country’s most competitive businesses. More than 90 percent of Americans live in markets 

served by four or more wireless operators, and a nearly ubiquitous 

98 percent of Americans live in a market served by three or more 

operators. Competition has driven wireless carriers to offer better 

service at lower prices. Carriers compete on the basis of service and 

feature options and calling plans, including lower prices, free 

voicemail, caller ID, and 3-way calling. Competitive forces in the 

wireless industry will discipline market participants more effectively than any regulator or regulation can. 

Imposing government rules for a wireless service offering would 

represent a marked and unjustified departure from the successful 

bipartisan policy of deregulation. Faced with unnecessary government regulation, carriers may decide not to offer a directory assistance database at all, leaving small businesses and others who rely 

substantially or even exclusively on their wireless phones no other 

choice but to pay to have their number listed in a landline directory—if they have that option at all, which many do not. The bill 

may even deter future innovations and industry initiatives for fear 

10 

government mandates will be added even before the first customer 

signs up. 

Representative of the problems with this bill is the requirement 

that all telecommunications carriers, wireline as well as wireless, 

‘‘mask’’ wireless telephone number information in the bills they 

send to their customers. While seemingly innocuous, compliance 

with this mandate would be costly and onerous. Carriers would essentially have to create a separate database of customers who 

elected not to have their number included in the directory assistance database, and every wireline and wireless carrier would have 

to check bills against that database to remove any numbers of customers who had not opted into the directory. No carrier currently 

has the technology to create the required database, query it, and 

reflect the results on bills. Requiring the creation of a separate 

database as a condition of providing directory assistance creates a 

very real risk that the entire directory assistance project will be deferred or even abandoned, to the detriment of consumers who desire such a resource. 

Let me be clear that consumer privacy must be effectively protected, in the context of wireless services and otherwise. If wireless 

carriers do not act in conformance with the commitments they have 

made to us, I would not hesitate to support remedial legislation. In 

this case, however, passing a law when there no evidence of harm 

and every indication that statutory intervention is unneeded not 

only puts the cart before the horse, it will discourage the private 

sector from even trying to develop non-regulatory solutions to such 

matters as privacy protection. For these reasons, I oppose S. 1963. 

GEORGE ALLEN. 

(11) 

CHANGES IN EXISTING LAW

In compliance with paragraph 12 of rule XXVI of the Standing 

Rules of the Senate, changes in existing law made by the bill, as 

reported, are shown as follows (existing law proposed to be omitted 

is enclosed in black brackets, new material is printed in italic, existing law in which no change is proposed is shown in roman): 

COMMUNICATIONS ACT OF 1934 

SEC. 332. MOBILE SERVICES. 

[47 U.S.C. 332]

(a) FACTORS WHICH COMMISSION MUST CONSIDER.—In taking actions to manage the spectrum to be made available for use by the 

private mobile services, the Commission shall consider, consistent 

with section 1 of this Act, whether such actions will— 

(1) promote the safety of life and property; 

(2) improve the efficiency of spectrum use and reduce the 

regulatory burden upon spectrum users, based upon sound engineering principles, user operational requirements, and market-place demands; 

(3) encourage competition and provide services to the largest 

feasible number of users; or 

(4) increase interservice sharing opportunities between private mobile services and other services. 

(b)(1) The Commission, in coordinating the assignment of frequencies to stations in the private mobile services and in the fixed 

services (as defined by the Commission by rule), shall have authority to utilize assistance furnished by advisory coordinating committees consisting of individuals who are not officers or employees of 

the Federal Government. 

(2) The authority of the Commission established in this subsection shall not be subject to or affected by the provisions of part 

III of title 5, United States Code, or section 3679(b) of the Revised 

Statutes (31 U.S.C. 665(b)). 

(3) Any person who provides assistance to the Commission under 

this subsection shall not be considered, by reason of having provided such assistance, a Federal employee. 

(4) Any advisory coordinating committee which furnishes assistance to the Commission under this subsection shall not be subject 

to the provisions of the Federal Advisory Committee Act. 

(c) REGULATORY TREATMENT OF MOBILE SERVICES.— 

(1) COMMON CARRIER TREATMENT OF COMMERCIAL MOBILE

SERVICES.—(A) A person engaged in the provision of a service 

that is a commercial mobile service shall, insofar as such perVerDate Aug 04 2004 02:25 Dec 10, 2004 Jkt 039010 PO 00000 Frm 00013 Fmt 6604 Sfmt 6602 E:\HR\OC\SR423.XXX SR423
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son is so engaged, be treated as a common carrier for purposes 

of this Act, except for such provisions of title II as the Commission may specify by regulation as inapplicable to that service 

or person. In prescribing or amending any such regulation, the 

Commission may not specify any provision of section 201, 202, 

or 208, and may specify any other provision only if the Commission determines that— 

(i) enforcement of such provision is not necessary in 

order to ensure that the charges, practices, classifications, 

or regulations for or in connection with that service are 

just and reasonable and are not unjustly or unreasonably 

discriminatory; 

(ii) enforcement of such provision is not necessary for the 

protection of consumers; and 

(iii) specifying such provision is consistent with the public interest. 

(B) Upon reasonable request of any person providing commercial mobile service, the Commission shall order a common 

carrier to establish physical connections with such service pursuant to the provisions of section 201 of this Act. Except to the 

extent that the Commission is required to respond to such a 

request, this subparagraph shall not be construed as a limitation or expansion of the Commission’s authority to order interconnection pursuant to this Act. 

(C) The Commission shall review competitive market conditions with respect to commercial mobile services and shall include in its annual report an analysis of those conditions. Such 

analysis shall include an identification of the number of competitors in various commercial mobile services, an analysis of 

whether or not there is effective competition, an analysis of 

whether any of such competitors have a dominant share of the 

market for such services, and a statement of whether additional providers or classes of providers in those services would 

be likely to enhance competition. As a part of making a determination with respect to the public interest under subparagraph (A)(iii), the Commission shall consider whether the proposed regulation (or amendment thereof) will promote competitive market conditions, including the extent to which such regulation (or amendment) will enhance competition among providers of commercial mobile services. If the Commission determines that such regulation (or amendment) will promote competition among providers of commercial mobile services, such 

determination may be the basis for a Commission finding that 

such regulation (or amendment) is in the public interest. 

(D) The Commission shall, not later than 180 days after the 

date of enactment of this subparagraph, complete a rulemaking 

required to implement this paragraph with respect to the licensing of personal communications services, including making 

any determinations required by subparagraph (C). 

(2) NON-COMMON CARRIER TREATMENT OF PRIVATE MOBILE

SERVICES.—A person engaged in the provision of a service that 

is a private mobile service shall not, insofar as such person is 

so engaged, be treated as a common carrier for any purpose 

under this Act. A common carrier (other than a person that 

13 

was treated as a provider of a private land mobile service prior 

to the enactment of the Omnibus Budget Reconciliation Act of 

1993) shall not provide any dispatch service on any frequency 

allocated for common carrier service, except to the extent such 

dispatch service is provided on stations licensed in the domestic public land mobile radio service before January 1, 1982. The 

Commission may by regulation terminate, in whole or in part, 

the prohibition contained in the preceding sentence if the Commission determines that such termination will serve the public 

interest. 

(3) STATE PREEMPTION.—(A) Notwithstanding sections 2(b) 

and 221(b), no State or local government shall have any authority to regulate the entry of or the rates charged by any 

commercial mobile service or any private mobile service, except 

that this paragraph shall not prohibit a State from regulating 

the other terms and conditions of commercial mobile services. 

Nothing in this subparagraph shall exempt providers of commercial mobile services (where such services are a substitute 

for land line telephone exchange service for a substantial portion of the communications within such State) from requirements imposed by a State commission on all providers of telecommunications services necessary to ensure the universal 

availability of telecommunications service at affordable rates. 

Notwithstanding the first sentence of this subparagraph, a 

State may petition the Commission for authority to regulate 

the rates for any commercial mobile service and the Commission shall grant such petition if such State demonstrates 

that— 

(i) market conditions with respect to such services fail to 

protect subscribers adequately from unjust and unreasonable rates or rates that are unjustly or unreasonably discriminatory; or 

(ii) such market conditions exist and such service is a replacement for land line telephone exchange service for a 

substantial portion of the telephone land line exchange 

service within such State. 

The Commission shall provide reasonable opportunity for public comment in response to such petition, and shall, within 9 

months after the date of its submission, grant or deny such petition. If the Commission grants such petition, the Commission 

shall authorize the State to exercise under State law such authority over rates, for such periods of time, as the Commission 

deems necessary to ensure that such rates are just and reasonable and not unjustly or unreasonably discriminatory. 

(B) If a State has in effect on June 1, 1993, any regulation 

concerning the rates for any commercial mobile service offered 

in such State on such date, such State may, no later than 1 

year after the date of enactment of the Omnibus Budget Reconciliation Act of 1993, petition the Commission requesting 

that the State be authorized to continue exercising authority 

over such rates. If a State files such a petition, the State’s existing regulation shall, notwithstanding subparagraph (A), remain in effect until the Commission completes all action (including any reconsideration) on such petition. The Commission 

14 

shall review such petition in accordance with the procedures 

established in such subparagraph, shall complete all action (including any reconsideration) within 12 months after such petition is filed, and shall grant such petition if the State satisfies 

the showing required under subparagraph (A)(i) or (A)(ii). If 

the Commission grants such petition, the Commission shall authorize the State to exercise under State law such authority 

over rates, for such period of time, as the Commission deems 

necessary to ensure that such rates are just and reasonable 

and not unjustly or unreasonably discriminatory. After a reasonable period of time, as determined by the Commission, has 

elapsed from the issuance of an order under subparagraph (A) 

or this subparagraph, any interested party may petition the 

Commission for an order that the exercise of authority by a 

State pursuant to such subparagraph is no longer necessary to 

ensure that the rates for commercial mobile services are just 

and reasonable and not unjustly or unreasonably discriminatory. The Commission shall provide reasonable opportunity for 

public comment in response to such petition, and shall, within 

9 months after the date of its submission, grant or deny such 

petition in whole or in part. 

(4) REGULATORY TREATMENT OF COMMUNICATIONS SATELLITE

CORPORATION.—Nothing in this subsection shall be construed 

to alter or affect the regulatory treatment required by title IV 

of the Communications Satellite Act of 1962 of the corporation 

authorized by title III of such Act. 

(5) SPACE SEGMENT CAPACITY.—Nothing in this section shall 

prohibit the Commission from continuing to determine whether 

the provision of space segment capacity by satellite systems to 

providers of commercial mobile services shall be treated as 

common carriage. 

(6) FOREIGN OWNERSHIP.—The Commission, upon a petition 

for waiver filed within 6 months after the date of enactment 

of the Omnibus Budget Reconciliation Act of 1993, may waive 

the application of section 310(b) to any foreign ownership that 

lawfully existed before May 24, 1993, of any provider of a private land mobile service that will be treated as a common carrier as a result of the enactment of the Omnibus Budget Reconciliation Act of 1993, but only upon the following conditions: 

(A) The extent of foreign ownership interest shall not be 

increased above the extent which existed on May 24, 1993. 

(B) Such waiver shall not permit the subsequent transfer of ownership to any other person in violation of section 

310(b). 

(7) PRESERVATION OF LOCAL ZONING AUTHORITY.— 

(A) GENERAL AUTHORITY.—Except as provided in this 

paragraph, nothing in this Act shall limit or affect the authority of a State or local government or instrumentality 

thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities. 

(B) LIMITATIONS.— (i) The regulation of the placement, construction, 

and modification of personal wireless service facilities 

15 

by any State or local government or instrumentality 

thereof— 

(I) shall not unreasonably discriminate among 

providers of functionally equivalent services; and 

(II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services. 

(ii) A State or local government or instrumentality 

thereof shall act on any request for authorization to 

place, construct, or modify personal wireless service 

facilities within a reasonable period of time after the 

request is duly filed with such government or instrumentality, taking into account the nature and scope of 

such request. 

(iii) Any decision by a State or local government or 

instrumentality thereof to deny a request to place, 

construct, or modify personal wireless service facilities 

shall be in writing and supported by substantial evidence contained in a written record. 

(iv) No State or local government or instrumentality 

thereof may regulate the placement, construction, and 

modification of personal wireless service facilities on 

the basis of the environmental effects of radio frequency emissions to the extent that such facilities 

comply with the Commission’s regulations concerning 

such emissions. 

(v) Any person adversely affected by any final action 

or failure to act by a State or local government or any 

instrumentality thereof that is inconsistent with this 

subparagraph may, within 30 days after such action or 

failure to act, commence an action in any court of competent jurisdiction. The court shall hear and decide 

such action on an expedited basis. Any person adversely affected by an act or failure to act by a State 

or local government or any instrumentality thereof 

that is inconsistent with clause (iv) may petition the 

Commission for relief. 

(C) DEFINITIONS.—For purposes of this paragraph— 

(i) the term ‘‘personal wireless services’’ means commercial mobile services, unlicensed wireless services, 

and common carrier wireless exchange access services; 

(ii) the term ‘‘personal wireless service facilities’’ 

means facilities for the provision of personal wireless 

services; and 

(iii) the term ‘‘unlicensed wireless service’’ means 

the offering of telecommunications services using duly 

authorized devices which do not require individual licenses, but does not mean the provision of direct-tohome satellite services (as defined in section 303(v)). 

(8) MOBILE SERVICES ACCESS.—A person engaged in the provision of commercial mobile services, insofar as such person is 

so engaged, shall not be required to provide equal access to 

common carriers for the provision of telephone toll services. If 

the Commission determines that subscribers to such services 

16 

are denied access to the provider of telephone toll services of 

the subscribers’ choice, and that such denial is contrary to the 

public interest, convenience, and necessity, then the Commission shall prescribe regulations to afford subscribers unblocked 

access to the provider of telephone toll services of the subscribers’ choice through the use of a carrier identification code 

assigned to such provider or other mechanism. The requirements for unblocking shall not apply to mobile satellite services unless the Commission finds it to be in the public interest 

to apply such requirements to such services. 

(9) WIRELESS CONSUMER PRIVACY PROTECTION.— (A) IN GENERAL.—A provider of commercial mobile services, or any direct or indirect affiliate or agent of such a 

provider, may not include the wireless telephone number 

information of any subscriber in any wireless directory assistance service database unless— 

(i) the mobile service provider provides a conspicuous, separate notice to the subscriber informing 

the subscriber of the right not to be listed in any wireless directory assistance service; and 

(ii) the mobile service provider obtains express prior 

authorization for listing from such subscriber, separate 

from any authorization obtained to provide such subscriber with commercial mobile service, or any calling 

plan or service associated with such commercial mobile 

service, and such authorization has not been subsequently withdrawn. 

(B) COST-FREE DE-LISTING.—A provider of commercial 

mobile services, or any direct or indirect affiliate or agent 

of such a provider, shall remove the wireless telephone 

number information of any subscriber from any wireless directory assistance service database upon request by that 

subscriber and without any cost to the subscriber. 

(C) PROTECTION OF WIRELESS PHONE NUMBERS.—A telecommunications carrier shall not disclose in its billing information provided to customers wireless telephone number 

information of subscribers who have indicated a preference 

to their commercial mobile services provider for not having 

their wireless telephone number information disclosed. Notwithstanding the preceding sentence, a telecommunications 

carrier may disclose a portion of the wireless telephone 

number in its billing information if the actual number cannot be readily ascertained. 

(D) PUBLICATION OF DIRECTORIES PROHIBITED.—A provider of commercial mobile services, or any direct or indirect affiliate or agent of such a provider, may not publish, 

in printed, electronic, or other form, or sell or otherwise disseminate, the contents of any wireless directory assistance 

service database, or any portion or segment thereof unless— 

(i) the mobile service provider provides a conspicuous, separate notice to the subscriber informing 

the subscriber of the right not to be listed; and 

(ii) the mobile service provider obtains express prior 

authorization for listing from such subscriber, separate 

17 

from any authorization obtained to provide such subscriber with commercial mobile service, or any calling 

plan or service associated with such commercial mobile 

service, and such authorization has not been subsequently withdrawn. 

(E) NO CONSUMER FEE FOR RETAINING PRIVACY.—A provider of commercial mobile services may not charge any 

subscriber for exercising any of the rights under this paragraph. 

(F) STATE AND LOCAL LAWS PRE-EMPTED.—To the extent 

that any State or local government imposes requirements 

on providers of commercial mobile services, or any direct or 

indirect affiliate or agent of such providers, that are inconsistent with the requirements of this paragraph, this paragraph preempts such State or local requirements. 

(G) DEFINITIONS.—In this paragraph: 

(i) CALLING PARTY’S IDENTITY.—The term ‘‘calling 

party’s identity’’ means the telephone number of the 

calling party or the name of subscriber to such telephone, or an oral or text message which provides sufficient information to enable a commercial mobile services subscriber to determine who is calling. 

(ii) UNLISTED COMMERCIAL MOBILE SERVICES SUBSCRIBER.—The term ‘‘unlisted commercial mobile services subscriber’’ means a subscriber to commercial mobile services who has not provided express prior consent to a commercial mobile service provider to be included in a wireless directory assistance service database. 

(iii) WIRELESS TELEPHONE NUMBER INFORMATION.— 

The term ‘‘wireless telephone number information’’ 

means the telephone number, electronic address, and 

any other identifying information by which a calling 

party may reach a subscriber to commercial mobile 

services, and which is assigned by a commercial mobile 

service provider to such subscriber, and includes such 

subscriber’s name and address. 

(iv) WIRELESS DIRECTORY ASSISTANCE SERVICE.—The 

term ‘‘wireless directory assistance service’’ means any 

service for connecting calling parties to a subscriber of 

commercial mobile service when such calling parties 

themselves do not possess such subscriber’s wireless 

telephone number information. 

(d) DEFINITIONS.—For purposes of this section— 

(1) the term ‘‘commercial mobile service’’ means any mobile 

service (as defined in section 3) that is provided for profit and 

makes interconnected service available (A) to the public or (B) 

to such classes of eligible users as to be effectively available to 

a substantial portion of the public, as specified by regulation 

by the Commission; 

(2) the term ‘‘interconnected service’’ means service that is 

interconnected with the public switched network (as such 

terms are defined by regulation by the Commission) or service 

18 

for which a request for interconnection is pending pursuant to 

subsection (c)(1)(B); and 

(3) the term ‘‘private mobile service’’ means any mobile service (as defined in section 3) that is not a commercial mobile 

service or the functional equivalent of a commercial mobile 

service, as specified by regulation by the Commission. 

Æ