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In its June 2015 Lifeline Order on Reconsideration, the FCC adopted a new rule which requires ETCs to retain documentation demonstrating subscriber eligibility for Lifeline, such as a copy of the applicant’s food stamp card and even more potentially sensitive information such as documents containing specific income information.

In doing so, the FCC took the opportunity to re-state its recent declarations that Sections 222 and 201(b) of the Communications Act empower it to police not only carriers’ use and disclosure of “customer proprietary network information” (CPNI) but also a much broader category of “proprietary information.” CTIA—The Wireless Association filed a Petition for Partial Reconsideration of the Commission’s Order (“CTIA Petition”) on this narrow but important issue, even as it disclaimed any challenge to the Order’s core ruling “that carriers must retain certain documentation that verifies the eligibility of Lifeline subscribers.

Initially, the deadline for oppositions to the CTIA Petition was Sept. 17, 2015, and the reply to opposition deadline was Sept. 28, 2015.  However, the Center for Democracy & Technology, Free Press, New America Foundation’s Open Technology Institute, and Public Knowledge filed a motion to extend the opposition deadline by 30 days.  In response to the motion, the FCC took the unusual step of giving interested parties a second chance to oppose the CTIA Petition.

The new opposition period expires on Oct. 8, 2015, with replies to oppositions due Oct. 19, 2015. In explaining its decision, the FCC stated that relevant documents were unavailable during the initial opposition period due to the FCC’s IT modernization efforts and that there was a “potential relationship” between issues addressed in the CTIA Petition and in comments filed on to the FCC’s Second Further Notice of Proposed Rulemaking (“FNPRM”) in the Lifeline proceeding, which had a reply comment deadline of Sept. 30, 2015.  The FCC noted that moving the CTIA Petition opposition deadline to a date after the FNPRM reply deadline would “facilitate more thorough and deliberate consideration of the issues raised in this CTIA Petition.” IT woes aside, the level of participation from the industry on this issue shows the difficulty of balancing the need for documentation to demonstrate compliance with the Lifeline eligibility process against the raised by the retention of many potentially sensitive consumer documents, some of which contain income and personally identifiable information.

Privacy has become a major enforcement theme of the FCC in the past year, particularly with respect to its administration of the Lifeline program.  Recently, DWT assisted two companies in settling the first-ever FCC privacy enforcement proceeding in a matter that involved eligibility information of applicants for Lifeline service, which does not meet the Act’s definition of CPNI.  The application of the FCC’s enforcement authority to customer information that is not CPNI is the subject of an appeal to the DC Circuit by US Telecom as well as the CTIA petition before the FCC.