Thought Exercise on CPNI

             I recognize that many of my posts are technical, complex, and “inside baseball.”  However, the matter of wireless carrier disclosure of location information is really, really, important, and rather easy to understand.  

             For public safety, national security, emergency response, and a host of other issues, location data can save lives.  On the other hand, commercial exploitation of location data can kill people. 

             It does not take too much speculation to come up with scenarios where disclosure for compensation by commercial ventures can trigger catastrophe.  For every bail bond professional tracking of a client who failed to show up in court, there are scenarios where location information makes it far easier for stalking and worse.

             Here’s a thought exercise.  Can you come up with any scenario where a landline or wireless telephone company will reveal to you the name and address of a subscriber?  There are commercial ventures that can disclose home and business addresses associated with a telephone number.  But no telecommunications carrier has ever agreed to disclose either a fixed or mobile location of a subscriber upon a one off, anonymous request. Directory Assistance provided a telephone number if you identified a name and address.  The carriers even monetized unlisted numbers for subscribers who did not disclosure of such relatively benign information.

             What could entitle the wireless carriers to disclose such location data on a commercial, contractual basis?

             Is anyone else livid that their location data was commercialized and monetized for years?  Is anyone disgusted by assertions that the FCC has no legal basis to act?

How Much Did the U.S. Wireless Carriers “Earn” From “Location Information Aggregators”?

             The FCC lawfully fined U.S. facilities-based wireless carriers nearly $200 million for selling highly intrusive location data about subscribers without their “opt-in” consent.  See https://www.fcc.gov/document/fcc-fines-largest-wireless-carriers-sharing-location-data.

             In Section 222 of the Communications Act, Congress comprehensively specified how the carriers bore an affirmative duty of care not to disclose clearly defined Customer Proprietary Information (“CPNI”).  See https://www.law.cornell.edu/uscode/text/47/222. The Act explicitly required the FCC, and no other agency, to protect telecommunications consumers.

             The language in this section is quite unambiguous.  Congress surely answered the “major question” whether and how the FCC has jurisdiction to protect telecommunications service subscribers from the unconsented commercial exploitation of data about their immediate location.

             There is no basis for the carriers, or certain dissenting FCC Commissioners, to state that the Federal Trade Commission has exclusive jurisdiction over any and all consumer privacy issues.  See https://docs.fcc.gov/public/attachments/FCC-24-40A3.docx.  Wireless carriers need subscriber location information to route calls to consumers and to provide access to their networks.  Privacy surely can be invaded by unlawful disclosure, but the reason wireless carriers generate and process this information is a fundamental technological element in how they provide service to subscribers.

             There is no doubt that all the facilities-based carriers “monetized” this information, but we will never know how many millions they received, because the carriers would scream bloody murder that such information is “business confidential” and “proprietary.” I’ll bet the carriers received far more than the $200 million they have to forfeit.

             If you follow the logic for exonerating the wireless carriers, it is okay for the carriers to provide nearly instantaneous location information for compensation, because such disclosure does not constitute anything proprietary within the meaning of Section 222 of the Communications Act. The exonerators dug themselves an even deeper jurisprudential hole when they claim the FTC has exclusive jurisdiction to decide whether and how to sanction CPNI disclosures.

             Once upon a time both Democratic and Republican FCC Commissioners acted in a nonpartisan, unanimous manner to protect consumers. So did Congress when it enacted Section 222 and amended it on several occasions.

             Now we have apologists for truly egregious behavior by carriers who surely knew they were creating a lucrative, but illegal, new profit center.  It does not help that they mended their ways a few years ago.

Does the FCC Have a Safe Harbor to Deregulate Despite the 1994 MCI Case Precedent?

             The prior blog entry suggested that the Supreme Court would have to use a semantic sleight of hand to approve FCC deregulatory initiatives while vacating new or resurrected regulatory rules and requirements.  See https://telefrieden.blogspot.com/2024/04/does-supreme-court-conservative.html. On further review, I think there just might be a way to pull this blocked on one side, open on the other gambit.

             Despite all the speculation about pending foreclosure of regulatory agency discretion, there is a provision in the Telecommunications Act of 1996 that the Court might deem sufficiently clear to withstand the major question and ambiguity roadblocks: 47 U.S. Code § 160 - Competition in provision of telecommunications service.  See https://www.law.cornell.edu/uscode/text/47/160.

             This Section establishes three evaluative criteria for the FCC to use when considering a deregulatory proposal for Title II, telecommunications service providers:

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

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

(3)       forbearance from applying such provision or regulation is consistent with the public interest. 47 U.S.C. §160(a)(1)-(3).

             There’s a lot of wiggle room in the criteria for a pro marketplace-oriented FCC to abandon common carrier rules and regulations.  Despite all the conservative majority’s antipathy toward regulatory agency activism, Section 160 just might provide enough clarity to green light major deregulatory initiative.  

             No questions asked.