$//Order, Reconsideration of Amendment of Part 64, FCC 94-346//$ $/Part 64 - Miscellaneous Rules Relating to Common Carriers, 64.201 Restrictions on Indecent Telephone Message Services/$ $/// FCC 94-346 1/13/95 ///$ ///newjob/// BEFORE THE FEDERAL COMMUNICATIONS COMMISSION FCC 94-346 Washington, D.C. 20554 In the Matter of ) ) Regulations Concerning Indecent ) GEN. Docket No. 90-64 Communications by Telephone ) ) ORDER ON PARTIAL RECONSIDERATION Adopted: December 23, 1994; Released: January 19, 1995 By the Commission: I. INTRODUCTION 1. The National Telephone Cooperative Association (NTCA) has filed a Petition for Partial Reconsideration and Clarification (Petition) of the regulations adopted in the Report and Order in re Regulations Concerning Indecent Communications by Telephone, CC Docket No. 90-64, 5 FCC Rcd 4926 (1990) (Report and Order). Those rules establish defenses to prosecution for indecent commercial telephone communications under Section 223(b) of the Communications Act of 1934, as amended (Act). NTCA seeks clarification that carriers that use the billing services of local exchange carriers (LECs) must notify LECs when billing is for an adult message service provider. NCTA also seeks clarification that billing LECs are subject to the provisions of Section 223 and our implementing rules only if they have been notified in writing of the adult content of the services. We grant NTCA's Petition. II. BACKGROUND 2. In November 1989, Congress amended Section 223(b) of the Act to regulate indecent commercial telephone communications. As amended, Section 223 imposes liability on adult message providers and carriers for knowingly making or permitting any indecent communication for commercial purposes to any person under 18 years of age. That section imposes similar liability when an indecent commercial communication is made to any person who is 18 years of age or older, unless the individual has given prior consent. Section 223 also establishes defenses to prosecution and empowers the Commission to promulgate additional defenses by regulation. 3. In 1990, the Commission issued a Notice of Proposed Rulemaking to implement the requirements of Section 223 of the Act, as amended. The Commission subsequently adopted rules that, among other things, established defenses to prosecution for violation of Section 223. The rules provide, among other things, that a party is not subject to prosecution under Section 223(b)(2) if the potential defendant: 1) notifies carriers that remit to the defendant an identifiable charge collected from subscribers that the defendant is providing indecent telephone messages for commercial purposes, and 2) in instances where the defendant subscribes to mass announcement services tariffed at the Commission, the defendant submits a written request to the carriers providing the service that calls to the message service be identified as calls to an adult message service on the bills rendered by the carriers on behalf of the message service provider. In addition, when technically feasible, common carriers are prohibited from providing access to indecent communications for commercial purposes from the telephone of any subscriber who has not previously requested, in writing, that the carrier provide access to such communications. This prohibition, however, applies only to carriers that collect from subscribers an identifiable charge for such indecent communication which they remit, in whole or in part, to the providers of such communication. In its petition, NTCA seeks clarification of these requirements as they apply to LECs. III. PETITION AND COMMENTS 4. NTCA is an association of LECs that provide exchange access service to interexchange carriers (IXCs). The IXCs, in turn, provide transmission service to information service providers, including adult message services. The adult messages are transmitted to end users through the LEC's local network, but the LECs have no contractual relationship with the information providers and, according to NTCA, have no way of identifying the information providers that sell adult messages. The defenses to prosecution established by the Commission require an adult message provider to notify the carrier (often the IXC) with whom it contracts for mass announcement service, that the calls the carrier receives must be labeled as calls to an adult telephone message service on the caller's bill. LECs must separately label adult message calls on the bills they render for the IXCs. 5. NTCA asks the Commission to clarify that Section 64.201 of its rules requires IXCs and other carriers that contract with adult message services to notify the billing LECs that calls to such message service providers should be identified as adult messages on bills rendered by the LECs on behalf of IXCs and other carriers. LECs who provide billing and collection services for other carriers normally have no contractual relationship with adult message providers who may be the ultimate beneficiaries of these billing and collection services. NTCA, therefore, also asks the Commission to clarify that Section 64.201 requires such LECs to label separately adult message service calls on bills and deny unrequested subscriber access to adult message services only in those instances where the LECs have received written notice of the adult content of the services. 6. Pacific and USTA filed comments in support of NTCA's Petition. Pacific states that, like the smaller LECs that are members of NTCA, it does not interact with IXC information service customers and is unable to monitor the content of their communications. Therefore, Pacific must be informed when it bills for adult message services on behalf of the IXCs. USTA claims that Congress did not intend the prohibition against providing subscriber access to adult message services to apply to LECs that have no contractual relationship with the original adult message service provider. IV. DISCUSSION 7. Section 64.201 of the Commission's rules sets forth defenses to prosecution for provision of indecent communications in violation of Section 223(b)(2) of the Act, 47 U.S.C.  223(b)(2). The statute includes within the scope of the term "defendant" any potential violator of Section 223(b)(2). Further, Section 223(b)(2)(B) of the Act makes it clear that carriers that transmit adult message services are potential defendants. Therefore, to preserve a defense under Section 64.201, intervening carriers, such as IXCs, as well as originating adult message service providers, are required to notify "the common carrier identified in section 223(c)(1)[of the Act]" of the existence of any customer that provides an adult message service. Furthermore, intervening carriers, such as IXCs, that are involved in the provision of adult message services to the local exchange are clearly participants in the collection and remission of identifiable charges for such services under Section 223(c)(1) of the Act. Therefore, we clarify and confirm that Section 64.201(a) of the Commission's rules requires originating adult message providers to notify their carrier of the nature of their messages and requires that carrier, in turn, to notify the billing LEC so that the LEC may comply with Section 223 of the Act and the Commission's implementing regulations. 8. NTCA further asks the Commission to clarify that, to be subject to the provisions of Section 223(c)(1), LECs must have written notice of the adult content of a message from the IXCs for which they perform billing and collection services. Section 223(c)(2) of the Act provides that no cause of action may be brought in any court or administrative agency against any common carrier on account of "any access permitted in good faith reliance upon the lack of any representation by a provider of communications that communications provided by that provider are communications specified in subsection (b)." In light of this provision and in the interests of promoting rigorous, objective enforcement of the Act, we clarify that failure of intervening carriers, such as IXCs, to notify a LEC in writing of the adult nature of transmitted messages where such notification is required by Section 64.201(a) of our Rules, as explained in the preceding paragraph, precludes prosecution of the LEC for violation of Sections 223(b)(2) and 223 (c)(1) of the Act. 9. We do not agree with USTA's contention that Congress did not intend its prohibition against providing access to apply to LECs that do not have a contractual relationship with the originator of the adult message service. Since adult message service providers routinely contract with IXCs that access local subscribers through LECs, such an intention on the part of Congress would have robbed Section 223(b)(2) of most of its force. Given the objective expressed in the record that the proposed amendment would "result in ending the availability of dial-a-porn to children, once and for all," this interpretation is in keeping with Congressional intent, our rules and the record in this proceeding. V. CONCLUSION 10. To the extent discussed in this Order on Partial Reconsideration we grant clarification of the regulations adopted in the Report and Order in re Regulations Concerning Indecent Communications by Telephone, CC Docket No. 90-64, 5 FCC Rcd 4926 (1990), as requested by the NTCA in its Petition. Specifically, we clarify that Section 64.201 requires IXCs and other carriers that contract with adult message service providers to notify the LECs providing subscriber billing for calls to these services that such calls should be separately labeled as calls to adult message services on the bill. We further clarify that failure of such IXCs and other carriers to meet this requirement precludes prosecution of the LECs providing such subscriber billing for violation of Section 64.201 of our Rules or Section 223(b)(2) of the Act. V. ORDERING CLAUSE 11. Accordingly, pursuant to Sections 1, 4(i), 201-205, 223 and 303(r) of the Communications Act of 1934, as amended 47 U.S.C.  151, 154(i), 201-205, 223, and 303(r), and Section 1.429 of the Commission's Rules, 47 C.F.R.  1.429, IT IS ORDERED that National Telephone Cooperative Association's Petition for Partial Reconsideration and Clarification is GRANTED as set forth above. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary