BEFORE THE PUBLIC SERVICE COMMISSION OF WISCONSIN

Revision of Administrative Rules to
establish Privacy Guidelines Applicable 1-AC-138
to Telecommunications Services

ORDER OF THE PUBLIC SERVICE COMMISSION OF WISCONSIN
- -
ADOPTING RULES

The Public Service Commission of Wisconsin hereby adopts chapter PSC 161, Wis. Adm. Code, to establish privacy guidelines applicable to telecommunications services.

ANALYSIS PREPARED BY
THE PUBLIC SERVICE COMMISSION OF WISCONSIN

On April 28, 1992, the State of Wisconsin enacted 1991 Wisconsin Act 268. That law created s. 196.207, Stats., establishing minimum requirements that a telecommunications utility must meet in order to offer a telephone caller identification service. Section 196.207(5), Stats., directs the Commission to adopt a rule regarding privacy:

    (5) PRIVACY CONSIDERATIONS. The commission shall promulgate a rule that establishes privacy guidelines applicable to telecommunications utilities.

On July 5, 1994, the State of Wisconsin enacted 1993 Wisconsin Act 496. That law amended s. 196.207, Stats., and created s. 196.209, Stats., to further specify and regulate the privacy considerations applicable to telecommunications services:

    196.209 PRIVACY CONSIDERATIONS.

    (1) RULES. The commission shall promulgate rules that establish privacy guidelines applicable to telecommunications services. Notwithstanding any exemptions identified in this chapter, a telecommunications provider is subject to rules promulgated under this subsection and s. 196.66 applies to a violation of this subsection.

    (2) RULE REVIEW. At least biennially, the commission shall review and revise as appropriate rules promulgated under sub.(1).

    (3) NEW SERVICES. A telecommunications provider introducing a new telecommunications service shall explicitly address privacy considerations before introducing that telecommunications service.

    (4) SCOPE. Rules promulgated by the commission under this section and privacy considerations addressed by a telecommunications provider shall include all of the following:

    (a) Protection against the outflow of information about users of telecommunications services.

    (b) Protection to the users of telecommunications services from receiving privacy intrusions.

PLAIN LANGUAGE ANALYSIS

The rule adopted herein establishes a set of procedures to govern utility practices affecting the privacy of users of telecommunications services. The rule addresses six related topics.

New services. The rule creates a process to identify and review privacy considerations that may exist as a telecommunications utility or telecommunications carrier introduces a new telecommunications service.

Non-listed and non-published number services. The rule codifies an existing policy followed by most telecommunications utilities regarding these services.

List rental. The rule codifies existing tariff requirements that apply to Ameritech's list rental agreements.

Call Trace. This section of the rule preserves an existing feature of local telephone service as the telephone network shifts to a different signalling protocol.

Customer records. The rule codifies existing utility policies regarding access to customer-specific information maintained by the utilities.

Notice to customers. The rule creates a requirement that telecommunications utilities inform their customers on an annual basis of what information is collected, how it is used and the circumstances under which that information is disclosed to third parties.

The rule also creates a waiver process to permit the Commission to modify this rule based upon an analysis of the costs and benefits of a provision of the rule as it applies to a specific telecommunications utility or telecommunications carrier.

Finally, the rule adopts on a permanent basis the basic framework for the Telecommunications Privacy Council, pursuant to s. 196.209(5), Stats.

A public hearing was held on June 1, 1994, pursuant to s. 227.16(6), Stats., for the purpose of soliciting public comment on the general subject of telecommunications privacy. The Telecommunications Privacy Council has also discussed the provisions of the proposed rule at its public meetings of February 2, 1995, March 27, 1995, and April 28, 1995.

The Commission issued a Notice of Proposed Rulemaking in this docket on May 18, 1995. The Notice of Proposed Rulemaking was published in the Wisconsin Administrative Register on June 14, 1995. The Notice was also submitted to the Legislative Council, the Department of Development, and the Small Business Liaison. Comments were received from the Legislative Council on June 20, 1995.

A second public hearing was held in Madison on June 30, 1995. In addition, written comments were received from interested parties.

STATUTORY AUTHORITY

Statutory Authority: ss. 196.02(1), 196.03, 196.207, 196.209, 196.37, 227.11, Stats.

Statutes Interpreted: ss. 196.19(1m), 196.207, 196.209, 196.499, Stats.

EFFECTIVE DATE

These rules shall take effect on the first day of the month following publication in the Wisconsin administrative register as provided in s. 227.22(2)(intro.), Stats.

INITIAL REGULATORY FLEXIBILITY ANALYSIS

These rules may have an effect on small telecommunications utilities, which are small businesses under s. 196.216, Stats., for the purposes of s. 227.114, Stats. The agency has considered the methods in s. 227.114(2), Stats., for reducing the impact of the rules on small telecommunications utilities and finds that incorporating any of these methods into the rules would be contrary to the statutory objectives which are the basis for the rules.

At the time of this order, there are 85 local exchange companies in Wisconsin, 81 of which are small telecommunications utilities. The agency finds that the protection of customer- specific information is in the public interest and that the standards for regulating access to customer-specific information maintained by telecommunications utilities should be uniform throughout the state to the maximum extent possible.

The agency also recognizes that the broad scope of the rules may be inappropriate in specific instances. For that reason, the rules create a procedure for obtaining a waiver of a provision of these rules, if upon review of the factors specified in s. 227.114(2), Stats., as well as a review of the costs and benefits of the provision, the agency finds that, with respect to a specific company, the public interest is better served by relaxing the provision.

FISCAL ESTIMATE

As indicated on the attached Fiscal Estimate form, these rules will have no fiscal impact on the agency or on any other state or local units of government.

ENVIRONMENTAL ANALYSIS

This action is not expected to result in significant environmental impacts according to s. PSC 2.90, Wis. Adm. Code. In addition, no unusual circumstances have come to the attention of the Commission which would require further environmental review. It consequently requires neither an environmental impact statement under s. 1.11, Stats., nor an environmental assessment.

TEXT OF RULE

SECTION 1. Chapter PSC 161 is created to read:

Chapter PSC 161

TELECOMMUNICATIONS PRIVACY

PSC 161.01 PURPOSE. The purpose of this chapter is to set forth privacy guidelines applicable to intrastate telecommunications services and to establish a telecommunications privacy council to advise the commission concerning the administration of s. 196.209, Stats., and the content of this chapter.

PSC 161.02 DEFINITIONS. In this chapter:

(1) "New telecommunications service" means a telecommunications service that is offered by a given telecommunications utility or telecommunications carrier after the effective date of this rule. "New telecommunications service" includes additional functions and features on, and technological alternatives to, any telecommunications service offered by a telecommunications utility or telecommunications carrier before the effective date of this rule.

(2) "Non-published number" means a telecommunications service that permits a subscriber to omit the subscriber's name, address and telephone number from the telephone directory and from directory assistance listings.

(3) "Non-listed number" means a telecommunications service that permits a subscriber to omit the subscriber's name, address and telephone number from the telephone directory. A non-listed telephone number is available through directory assistance.

(4) "Privacy consideration" means a foreseeable possibility that the operation of a given telecommunications service could result in either an outflow of information about users of telecommunications services, or the receipt of a telephone call that intrudes upon the privacy of a user of telecommunications services. "Privacy consideration" includes the foreseeable possibility that information governed by ss. PSC 161.05 and PSC 161.07 could be released to a 3rd party. "Privacy consideration" does not refer to the ringing bell or other announcement signal associated with an incoming telephone call, the communication of information protected by any provision of statute or the state or federal constitution, or any practice, service or act that is permitted under ss. 968.27 to 968.37, Stats.

(5) "Subscriber list information" means any information identifying the listed names of subscribers of a telecommunications utility and the subscribers' telephone numbers, addresses, or primary advertising classifications, or any combination thereof, that the utility has published, caused to be published or accepted for future publication.

(6) "Telecommunications carrier" has the meaning given in s. 196.01(8m), Stats.

(7) "Telecommunications service" has the meaning given in s. 196.01(9m), Stats.

(8) "Telecommunications utility" has the meaning given in s. 196.01(10), Stats.

PSC 161.03 PRIVACY CONSIDERATIONS FOR NEW SERVICES.

(1) Any telecommunications utility or telecommunications carrier proposing to offer a new service or add a new feature to an existing service, under ss. 196.19, 196.196(3), or 196.499, Stats., shall comment in its tariff application to the commission on any privacy considerations that are expected to occur with respect to the new service, or state that no privacy considerations are known to exist with respect to the new service.

(2) In its comment, the telecommunications utility or telecommunications carrier shall identify:

    (a) The circumstances in which the privacy consideration could occur.

    (b) Whether the degree of privacy diminished by the new service or feature can be restored.

    (c) Whether the means to restore privacy will be available for a charge and, if applicable:

    1. What the charge will be.

    2. What reason justifies the charge for restoring the privacy diminished by the new service or feature.

(3) Pursuant to ss. 196.19(1m)(b) and 196.499(1), Stats., the commission staff shall review a tariff application to identify any privacy considerations that could arise with the new service.

(4)

    (a) If the commission determines that unresolved privacy considerations exist with respect to a tariff application filed under s. 196.19(1m), Stats., it shall serve a written notice of suspension on the telecommunications utility, pursuant to s. 196.19(1m)(b), Stats.

    (b) The commission shall make a determination under par. (a) and serve a notice of suspension on the telecommunications utility within 10 days after the date on which the proposed tariff was filed with the commission.

    (c) A notice of suspension shall state the specific privacy considerations the commission will investigate.

    (d) Upon issuing a notice of suspension, the commission shall:

    1. Open a docket and issue a public notice designating the matter for investigation.

    2. Indicate whether a hearing will be held.

    3. Issue an order as required by s. 196.19(1m)(d), Stats.

(5) If the commission determines that unresolved privacy considerations exist with respect to a tariff application filed under s. 196.499(2), Stats., it shall serve notice on the telecommunications carrier and conduct an investigation, pursuant to s. 196.499(6), Stats.

PSC 161.04 NON-PUBLISHED AND NON-LISTED NUMBER SERVICES.

Every telecommunications utility shall file a tariff under s. 196.19, Stats., to offer a non-listed and a non-published number service. The utility may establish a reasonable charge for the services.

PSC 161.05 SUBSCRIBER LIST RENTAL SERVICE.

(1) A telecommunications utility may furnish subscriber list information to 3rd parties for a reasonable charge.

(2) A telecommunications utility may not include the name, address or other information pertaining to a telephone customer account where the subscriber has subscribed to a non-published or non-listed number service without first obtaining the written authorization of the subscriber in question.

(3) Any telecommunications utility furnishing subscriber list information to 3rd parties shall publish a telephone number in the telephone directory to which a subscriber may call to remove the subscriber's list information from future subscriber list agreements. This subsection does not apply to the sale or exchange of white pages listings to other telecommunications utilities for the purpose of preparing a white page directory of the local calling area for a given exchange, or the sale or exchange of subscriber list information to any person pursuant to 47 U.S.C. s. 222(e).

PSC 161.06 CALL TRACE.

Every telecommunications utility shall offer to its customers a tracing service to identify the source of unlawful, abusive and nuisance telephone calls. The utility may establish a reasonable charge for the services.

PSC 161.07 CUSTOMER RECORDS.

(1) GENERAL. A telecommunications utility shall not make available to any person, without obtaining the prior written consent of the subscriber, any of the following information:
    (a) The subscriber's call detail, including personal patterns and any listing of the telephone numbers or other access numbers called by the subscriber. This paragraph does not apply to billing information concerning the person calling that federal law or regulation requires a telecommunications utility to provide to the person called.
    (b) The subscriber's billing, credit or other personal financial information. This paragraph does not apply to billing information disclosed during the course of a telephone inquiry, provided the telecommunications utility establishes a security procedure that reasonably ensures that the calling party is the subscriber of record for that customer account.
    (c) The basic and optional services which a subscriber has purchased from the telecommunications utility or from independent suppliers of information services that use utility facilities to provide service to the subscriber.
    (d) Demographic information about individual subscribers, or aggregate information from which individual identities and characteristics have not been removed.
(2) DISCLOSURE TO SUBSCRIBER. If a telecommunications utility releases information to a 3rd party, with the consent of the subscriber under sub. (1), the utility shall inform the subscriber, upon request, of the identity of each person to whom the information has been released. The utility shall notify a subscriber of the provisions of this subsection whenever consent is requested under sub. (1).

(3) RESCISSION. Any subscriber who has given consent for the release of personal information under sub. (1) may rescind this consent upon written notice to the telecommunications utility.

(4) EXCLUSIONS. This section does not apply to any of the following:

    (a) Information provided by subscribers for inclusion in a telephone directory.
    (b) Information provided through directory assistance service.
    (c) Postal Zip Code information.
    (d) Information provided to a collection agency by a telecommunications utility for the exclusive purpose of collecting unpaid debts owed the utility.
    (e) Information provided to a public safety answering point in the course of a telephone call to 911, or any other call communicating an imminent threat to life or property.
    (f) Information provided to a law enforcement agency or other third party in response to lawful process. For the purposes of this paragraph, lawful process includes any subpoena, warrant, interrogatory or other method of investigation, authorized by state or federal statute or the procedural rules of state or federal courts.
    (g) Information required by the commission pursuant to its jurisdiction over telecommunications utilities.
    (h) Information, including credit or other personal financial information, transmitted between telecommunications utilities to the extent necessary to comply with s. PSC 165.051(1) or to furnish telecommunications service between or within service areas.
    (i) Information a telecommunications carrier is required to release under the rules and orders of the commission or the federal communications commission.
    (j) Information provided to an agent or subcontractor of the telecommunications utility for the purpose of providing any service or function which the telecommunications utility may lawfully delegate, provided, that such agent or subcontractor shall be subject to this rule to the same extent as the delegating telecommunications utility.
(5) CALL DETAIL. A telecommunications utility that charges for local telephone service on a measured or per-call basis shall offer to provide a summary of the local call detail as part of the local telephone bill for a reasonable charge.

PSC 161.08 NOTICE TO CUSTOMERS.

(1) At the time of entering into an agreement to provide telephone service to a subscriber and at least once a year thereafter, a telecommunications utility shall provide notice which informs the subscriber of all of the following:

    (a) The requirements, procedures and protective measures provided for in this chapter.

    (b) The nature of customer-specific information collected or to be collected with respect to the subscriber and the nature of the use of that information.

    (c) The nature, frequency, and purpose of any disclosure which may be made of customer-specific information, including an identification of the types of persons to whom the disclosure may be made.

(2) The notice to customers required by sub. (1) shall be made in the form of a bill insert, separate mailing or provided in the information pages of the telephone directory.

PSC 161.09 WAIVER.

(1) On petition, from a telecommunications utility or telecommunications carrier regulated under this chapter, or upon its own motion, the commission may waive or modify application of a provision of this chapter as it applies to one or more utilities or carriers upon a showing that the exemption is reasonable and consistent with the factors under sub. (3) of this section.

(2) If the commission receives a petition for waiver, or decides to consider a waiver on its own motion, the commission shall issue a public notice and provide an opportunity for hearing.

(3) The commission's consideration of a waiver request shall include all of the following:

    (a) The benefit of the provision to consumers of telecommunications services.

    (b) The cost of the provision with respect to a specific telecommunications utility or telecommunications carrier.

    (c) The availability of any alternative regulatory procedures.

    (d) If the waiver request concerns a small business as defined in ss. 227.114(1) and 196.216, Stats., the commission's consideration of a waiver request shall include the factors specified in s. 227.114(2), Stats.

PSC 161.10 APPLICABILITY.

This chapter shall not apply where the requirements of this chapter conflict with, or are preempted by, federal statute, rule or order.

PSC 161.11 TELECOMMUNICATIONS PRIVACY COUNCIL.

(1) GENERAL. The commission shall appoint a telecommunications privacy council consisting of representatives of telecommunications utilities, telecommunications carriers and of consumers of telecommunications services.

(2) MEMBERSHIP. The council shall consist of 13 members.

(3) STAFF ASSISTANCE. The commission shall assign staff members as needed to facilitate the work of the council. The commission shall appoint a member of the commission staff to serve as staff liaison for the council. The liaison shall be a non-voting member and shall do all of the following:

    (a) Assist the council in obtaining subject matter expertise in the area of telecommunications privacy.

    (b) Maintain the official record of the council, including membership, minutes of meetings, agenda and reports.

    (c) Assist the chairperson of the council in planning the agenda, time and place of meetings.

    (d) Provide other administrative assistance as requested by the council.

(4) TERM. Members shall serve for 3 years.

(5) ORGANIZATION. The council shall elect from its membership, not including the administrative assistant or the privacy advocate, a chairperson and vice-chairperson. Elections shall be held at the first meeting of each calendar year. The term of office for these positions shall be one year.

(6) DUTIES. The telecommunications privacy council shall advise the commission concerning the administration of s. 196.209, Stats., the content of administrative rules adopted pursuant to s. 196.209(1), Stats., and any other matters assigned to the council by the commission.

(7) MEETINGS. The telecommunications privacy council shall meet at least once each year.

(8) REIMBURSEMENT. Members of the telecommunications privacy council shall serve without compensation. Members, other than the privacy advocate and those members from the department of justice and the department of administration and the telecommunications industry, shall be reimbursed for their actual and necessary expenses incurred in the performance of their duties as part of the telecommunications privacy council, subject to any budget guidelines the commission may adopt.

(9) BYLAWS. The telecommunications privacy council may adopt bylaws appropriate for the operation of the council.

CONTACT PERSONS

Any questions regarding the rule adopted herein may be directed to Dennis Klaila, Rate Analyst, Telecommunications Division, at (608) 267-9780.

Dated at Madison, Wisconsin

__________________________________________

By the Commission.

__________________________________________

Lynda L. Dorr

Secretary to the Commission

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