33890 Federal Register / Vol. 63, No. 119 / Monday, June 22, 1998 / Proposed Rules

(b) Sections 4206(a) and (b) of the

Balanced Budget Act of 1997 (42 U.S.C.

1395j).

3. Section 414.62 is added to subpart

A, to read as follows:

§ 414.62 Payment for consultations via

interactive telecommunications systems.

(a) Limitations on payment. Medicare

payment for a professional consultation

conducted via interactive

telecommunications systems is subject

to the following limitations:

(1) The payment may not exceed the

current fee schedule amount of the

consulting practitioner for the health

care services provided.

(2) The payment may not include any

reimbursement for any telephone line

charges or any facility fees.

(3) The payment is subject to the

coinsurance and deductible

requirements of section 1833(a)(1) and

(b) of the Act.

(4) The payment differential of section

1848(a)(3) of the Act applies to services

furnished by nonparticipating

physicians.

(b) Prohibited billing. The beneficiary

may not be billed for any telephone line

charges or any facility fees.

(c) Assignment required for

nonphysician practitioners. Payment to

nonphysician practitioners is made only

on an assignment-related basis.

(d) Who may bill for the consultation.

Only the consultant practitioner may

bill for the consultation.

(e) Sharing of payment. The

consultant practitioner must provide to

the referring practitioner 25 percent of

any payments, including any applicable

deductible or coinsurance amounts, he

or she received for the consultation.

(f) Sanctions. A practitioner may be

subject to the applicable sanctions

provided for in chapter V, parts 1001,

1002, and 1003 of this title if he or she—

(1) Knowingly and willfully bills or

collects for services in violation of the

limitations of this section on a repeated

basis; or

(2) Fails to timely correct excess

charges by reducing the actual charge

billed for the service to an amount that

does not exceed the limiting charge for

the service or fails to timely refund

excess collections.

(Catalog of Federal Domestic Assistance

Program No. 93.774, Medicare—

Supplementary Medical Insurance Program)

Dated: February 8, 1998.

Nancy-Ann Min DeParle,

Administrator, Health Care Financing

Administration.

Dated: April 14, 1998.

Donna E. Shalala,

Secretary.

[FR Doc. 98–16278 Filed 6–19–98; 8:45 am]

BILLING CODE 4120–01–P

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Parts 22 and 64

[CC Docket No. 96–115; DA 98–971]

Telecommunications Carriers’ Use of

Customer Proprietary Network

Information and Other Customer

Information

AGENCY: Federal Communications

Commission.

ACTION: Clarification; proposed rule.

SUMMARY: The Order released May 21,

1998 clarifies various issues pertaining

to the Second Report and Order and

Further Notice of Proposed Rulemaking

released February 26, 1998.

FOR FURTHER INFORMATION CONTACT:

Brent Olson, Attorney, Common Carrier

Bureau, Policy and Program Planning

Division, (202) 418–1580.

SUPPLEMENTARY INFORMATION: This is a

summary of the Commission’s Order

adopted and released May 21, 1998. The

full text of this Order is available for

inspection and copying during normal

business hours in the FCC Reference

Center, 1919 M St., NW., Room 239,

Washington, DC. The complete text also

may be obtained through the World

Wide Web, at http://www.fcc.gov/

Bureaus/Common Carrier/Orders/

da98971.wp, or may be purchased from

the Commission’s copy contractor,

International Transcription Service,

Inc., (202) 857–3800, 1231 20th St.,

NW., Washington, DC. 20036.

Synopsis of Order on Reconsideration

I. Introduction

1. On February 26, 1998, the

Commission released a Second Report

and Order and Further Notice of

Proposed Rulemaking, 63 FR 20326,

April 24, 1998 (Second Report and

Order), interpreting and implementing,

among other things, the portions of

section 222 of the Communications Act

of 1934, as amended, that govern the use

and disclosure of, and access to,

customer proprietary network

information (CPNI) by

telecommunications carriers. Since the

release of the Second Report and Order,

a number of parties have requested that

the Commission clarify various issues

pertaining to that order. In response to

these requests, the Common Carrier

Bureau issues this order clarifying the

Second Report and Order as follows:

(a) Independently-derived

information regarding customer

premises equipment (CPE) and

information services is not CPNI and

may be used to market CPE and

information services to customers in

conjunction with bundled offerings.

(b) A customer’s name, address, and

telephone number are not CPNI.

(c) A carrier has met the requirements

for notice and approval under section

222 and the Commission’s rules where

it has both provided annual notification

to, and obtained prior written

authorization from, customers with

more than 20 access lines in accordance

with the Commission’s former CPNI

rules.

(d) Although a carrier must ensure

that its certification of corporate

compliance with the Commission’s

CPNI rules is made publicly available, it

is not required to file this certification

with the Commission.

II. Clarification of Marketing Uses of

Customer Information Related to CPE

or Information Services

2. Section 222(c)(1) establishes the

limited circumstances in which carriers

can use, disclose, or permit access to

CPNI without first obtaining customer

approval. In interpreting section

222(c)(1) in the Second Report and

Order, the Commission adopted an

approach that allows carriers to use

CPNI, without first obtaining customer

approval, to market improvements or

enhancements to the package of

telecommunications services the carrier

already provides to a particular

customer, which it referred to as the

‘‘total service approach.’’

3. The Commission’s discussion,

however, did not specifically address a

carrier’s ability to use CPNI when its

customers obtain their

telecommunications service as part of a

bundled package that includes nontelecommunications service offerings,

such as CPE or certain information

services.

4. We make clear that, when a

customer purchases CPE or information

services from a carrier that are bundled

with a telecommunications service, the

carrier subsequently may use any

customer information independently

derived from the carrier’s prior sale of

CPE to the customer or the customer’s

subscription to a particular information

service offered by the carrier in its
Federal Register / Vol. 63, No. 119 / Monday, June 22, 1998 / Proposed Rules 33891

marketing of new CPE or a similar

information service that is bundled with

a telecommunications service. Neither

CPE nor information services constitute

‘‘telecommunications services’’ as

defined in the Act. Therefore, any

customer information derived from the

carrier’s sale of CPE or from the

customer’s subscription to the carrier’s

information service would not be

‘‘CPNI’’ because section 222(f) defines

CPNI in terms of information related to

a ‘‘telecommunications service.’’ As a

result, in situations where the bundling

of a telecommunications service with

CPE, information services, or other nontelecommunications services is

permissible, a carrier may use CPNI to

target particular customers in a manner

consistent with the Second Report and

Order, and it also may use the customer

information independently derived from

the prior sale of the CPE, the customer’s

subscription to a particular information

service, or the carrier’s provision of

other non-telecommunications offerings

to market its bundled offering.

5. In an effort to further explain a

carrier’s obligation in the context of

bundled offerings, we provide an

example of how the Commission’s rules

would apply in the CMRS context. A

CMRS provider could use CMRSderived CPNI to target its high usage

analog wireless customers to offer them

new digital wireless service plans. If

such an analog customer also had

purchased previously a CMRS handset,

or an information service such as voice

mail, as part of a bundled offering from

the carrier, the carrier also would have

access to information concerning the

customer’s purchase of the carrier’s CPE

and information service that is

independent from the CPNI derived

from the provision of the CMRS service.

Consistent with the total service

approach, the carrier could use such

customer information to market new

digitally-compatible CPE and new voice

mail service in conjunction with the

offering of new digital wireless service

in a single contact with the customer,

without first obtaining the customer’s

approval.

6. In contrast, where a particular

customer has not purchased CPE or

information services from the carrier

that is providing its telecommunications

services, the carrier would be

subsequently prohibited from using

CPNI, without first obtaining customer

approval, to market a bundled offering

of CPE or information services with

telecommunications services to such a

customer. In this situation, absent

customer approval, the carrier would be

using CPNI in violation of section

222(c)(1) to market CPE or information

services to a customer with whom they

had no existing relationship derived

from the carrier’s sale of CPE or the

customer’s subscription to the carrier’s

information service. Similarly, the

general knowledge that all wireline

customers have a telephone would not

permit carriers to use CPNI derived from

wireline service to select those

individuals to whom to market the

carrier’s CPE offerings.

7. We also clarify that, only where

CPE or an information service is part of

a bundled offering, including a

telecommunications service, and the

carrier is the existing CPE or

information service provider, could the

carrier use CPNI to market a new

bundled offering that includes new CPE

or similar information services. For

example, carriers cannot use CPNI to

select certain high usage customers to

whom they also sold telephones, and

then market only new CPE that is not

part of a new bundled plan. Section

222(c)(1)(A) permits the use of CPNI,

without first obtaining customer

approval, only ‘‘in the provision of the

telecommunications service from which

such information is derived.’’ Therefore,

when a carrier has identified a customer

through the use of CPNI, but is not

offering a telecommunications service in

conjunction with its marketing of CPE

or information services, that carrier

would be using CPNI outside the

provision of the service from which it is

derived, in violation of section 222 and

the Commission’s rules.

III. Customer’s Name, Address, and

Telephone Number

8. We clarify that a customer’s name,

address, and telephone number do not

fall within the definition of CPNI, set

forth in section 222(f)(1).

9. We consider this information to be

part of a carrier’s business record or

customer list that identifies the

customer and indicates how that

customer can be contacted by the

carrier. Although such information

generally appears on a customer’s

billing statement, it does not pertain to

the ‘‘telephone exchange service or toll

service’’ received by the customer, as

specified by the statutory definition in

section 222(f)(1)(B). If the definition of

CPNI included a customer’s name,

address, and telephone number, a

carrier would be prohibited from using

its business records to contact any of its

customers to market any new service

that falls outside the scope of its

existing service relationship with those

customers. In fact, under such an

interpretation, a carrier would not even

be able to contact a single customer in

an effort to obtain permission to use

their CPNI for marketing purposes

because the carrier’s mere use of its

customer list to initiate contact with its

customers would constitute a violation

of section 222. This anomalous result

was clearly not intended by section 222.

Therefore, we clarify that a carrier’s use

of its customers’ name, address, and

telephone number for marketing

purposes would not be subject to the

CPNI restrictions in section 222(c)(1)

because such information is not CPNI.

Thus, under section 222 and the

Commission’s rules, a carrier could

contact all of its customers or all of its

former customers, for marketing

purposes, by using a customer list that

contains each customer’s name, address,

and telephone number, so long as it

does not use CPNI to select a subset of

customers from that list.

IV. Notice and Written Approval Under

the Computer III CPNI Framework

10. Prior to the adoption of the

Telecommunications Act of 1996, the

framework established under the

Commission’s Computer III regime

governed the use of CPNI by the BOCs,

AT&T, and GTE to market CPE and

enhanced services. Two important

components of this Computer III

framework were: (1) a carrier’s

obligation to provide an annual

notification of CPNI rights to multi-line

customers regarding enhanced services,

as well as a similar notification

requirement regarding CPE that applied

only to the BOCs, and (2) a carrier’s

obligation to obtain prior written

authorization from business customers

with more than 20 access lines to use

CPNI to market enhanced services. We

clarify that in circumstances where a

carrier has provided annual notification

and received prior written authorization

from customers with more than twenty

access lines, the requirements for notice

and approval under section 222, and the

associated Commission rules, are

satisfied for those customers.

11. We find that carriers that have

complied with the Computer III

notification and prior written approval

requirement in order to market

enhanced services to business

customers with more than 20 access

lines are also in compliance with

section 222 and the Commission’s rules.

Such carriers may rely on their previous

compliance with the Computer III

notification and approval requirements

to market enhanced services to business

customers with more than 20 access

lines without taking any additional

steps to notify such customers of their

CPNI rights or to obtain customer

approval to use CPNI to market

enhanced services to such customers.
33892 Federal Register / Vol. 63, No. 119 / Monday, June 22, 1998 / Proposed Rules

1The rule does not differentiate between major

and minor changes. Amendment of Sections 1.517

and 1.520, 61 FCC 2d 38 (1976).

V. Safeguards

12. As one of several CPNI safeguards,

the Commission required in the Second

Report and Order each carrier to certify

that it is in compliance with the

Commission’s CPNI rules. In describing

a carrier’s duty, the Commission stated

that each carrier must ‘‘submit a

certification’’ and that the certification

‘‘must be made publicly available.’’ We

clarify that the Commission’s use of the

word ‘‘submit’’ in the order was not

intended to require carriers to file such

certifications with the Commission.

Rather, the order directs carriers to

ensure only that these corporate

certifications be made publicly

available.

VI. Ordering Clauses

13. It is ordered that, pursuant to

sections 1, 4(i), 222 and 303(r) of the

Communications Act of 1934, as

amended, 47 U.S.C. 151, 154(i), 222 and

303(r), and authority delegated

thereunder pursuant to sections 0.91

and 0.291 of the Commission’s rules, 47

CFR 0.91, 0.291, this Order is hereby

adopted.

Federal Communications Commission.

Richard K. Welch,

Acting Deputy Chief, Common Carrier

Bureau.

[FR Doc. 98–16511 Filed 6–19–98; 8:45 am]

BILLING CODE 6712–01–P

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Parts 73 and 74

[MM Docket No. 98–93; FCC 98–117]

1998 Biennial Regulatory Review—

Streamlining of Radio Technical Rules

AGENCY: Federal Communications

Commission.

ACTION: Notice of proposed rulemaking.

SUMMARY: The Commission seeks

comment on proposals that would

change fundamentally the way it

evaluates proposals that would create

interference in the FM band. It also

seeks comment on whether the

contingent application rule should be

modified to permit coordinated facility

modifications among broadcasters. The

Commission proposes a signal

propagation methodology that more

accurately takes into account terrain

effects to better predict where

interference would not occur; adoption

of this methodology would permit

certain applicants to obtain greater

service improvements. The Commission

also proposes other changes to promote

greater technical flexibility in the FM

service and to streamline and expedite

the processing of applications to modify

existing facilities in several services.

DATES: Comments must be filed on or

before August 21, 1998. Reply

comments are due September 21, 1998.

Written comments by the public on the

proposed information collections are

due on or before August 21, 1998.

ADDRESSES: All comments and reply

comments should be addressed to the

Office of the Secretary, Federal

Communications Commission, 1919 M

Street, N.W., Washington, D.C. 20554.

Copies of these pleadings also should be

sent to the Mass Media Bureau, Audio

Services Division (Room 302), 1919 M

St., N.W., Washington, D.C. 20554, and

the Office of General Counsel (Room

610), 1919 M St., N.W., Washington,

D.C. 20554. In addition to filing

comments with the Secretary, a copy of

any comments on the information

collections contained herein should be

submitted to Judy Boley, Federal

Communications Commission, Room

234, 1919 M Street, N.W., Washington,

D.C. 20554, or via the Internet to

jboley@fcc.gov and to Timothy Fain,

OMB Desk Officer, 10236 NEOB, 725—

17th Street, N.W., Washington, D.C.

20503 or via the Internet to

fainlt@al.eop.gov.

FOR FURTHER INFORMATION CONTACT:

Peter Doyle, Dale Bickel or William

Scher, Audio Services Division, Mass

Media Bureau, (202) 418–2780. For

additional information concerning the

information collections contained in

this Notice of Proposed Rulemaking

(Document) contact Judy Boley at (202)

418–1214, or via the Internet at

jboley@fcc.gov.

SUPPLEMENTARY INFORMATION: This is a

summary of the Commission’s Notice of

Proposed Rulemaking in MM Docket

No. 98–93 and FCC No. 98–117, adopted

June 11, 1998 and released June 15,

1998. The complete text of this Notice

of Proposed Rulemaking is available for

inspection and copying during regular

business hours in the FCC Reference

Center (Room 239), 1919 M St., N.W.,

Washington, D.C. 20554 and may also

be purchased from the Commission’s

copy contractor, International

Transcription Service, (202) 857–3800

(phone), (202) 857–3805 (facsimile),

1231 20th St., N.W., Washington, D.C.

20036.

Synopsis of Notice of Proposed

Rulemaking

I. Negotiated Interference in the FM

Service

A. Introduction/Background

1. The Commission frequently has

used the term ‘‘negotiated interference’’

to describe agreements between or

among stations to accept new or

increased interference within their

protected service contours, typically in

connection with proposals to expand

service by one or several stations. The

Commission generally has rejected

attempts by applicants to negotiate

interference levels on a case-by-case

basis, holding that the selection of

interference standards is a nondelegable Commission responsibility.

Nevertheless, the Commission has

concluded that the public interest

would be served by modifying the

contingent application rule and AM cutoff procedures to facilitate coordinated

technical changes between AM stations.

No parallel changes have been adopted

for FM applications, with the exception

of certain grandfathered short-spaced

stations. Thus, the Commission has

condoned the use of agreements to

promote service improvements in the

technically more difficult AM service,

as well as agreements between stations

that operate, axiomatically, at spacings

substantially less than current new

station requirements, while consistently

rejecting the use of these same

agreements between fully-spaced FM

stations where interference concerns

generally would be less. In short,

current Commission policy provides the

least flexibility for technical facility

improvements in mid-sized major

markets where FM broadcasters face the

greatest technical constraints to

undertake such improvements.

B. Specific Proposals

i. Agreements Involving Applications

for Coordinated FM Station Changes

2. Background. Section 73.3517

prohibits the filing of contingent

applications in the FM broadcast

services.1 As stated above, the

Commission permits the filing of

contingent applications to facilitate

interference reduction and service

improvements by either separately or

commonly owned AM stations. The

Commission has received similar

requests from FM stations that have

entered into agreements that propose

‘‘coordinated’’ or ‘‘interrelated’’ facility