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 STATEMENT  OF  COMMISSIONER  KEVIN  J.  MARTIN 
 Re:  Implementation  of  the  Telecommunications  Act  of  1996;  CC  Docket  No.  96-  115 
 Telecommunications  Carriers’  Use  of  Customer  Proprietary  Network  Information  and  Other  Customer  Information; 


 Implementation  of  Non-  Accounting  Safeguards  of  Sections  271  and  272  of  the  Communications  Act  of  1934,  as  Amended;  CC  Docket  No.  96-  149 
 2000  Biennial  Regulatory  Review  --  Review  of  Policies  and  Rules  Concerning  Unauthorized  Changes  of  Consumers’  Long  Distance  Carriers;  CC  Docket  No. 
 00-  257 
 I  commend  the  Chairman  and  Bureau  staff  for  their  hard  work  and  effort  to  craft  rules  that  attempt  to  implement  the  customer  proprietary  network  information 
 (“  CPNI”)  provisions  of  the  Act  and  continue  to  protect  the  privacy  of  consumers  in  the  face  of  court  decisions  that  have  limited  our  previous  privacy  safeguards. 


 I  believe  that  the  Commission  must  remain  vigilant  with  respect  to  protecting  sensitive  personal  information  of  customers  of  telecommunications  carriers.  Indeed, 
 our  Congressional  directive  is  to  empower  consumers  with  the  ability  to  protect  the  confidentiality  of  their  sensitive  personal  information.  Previously,  the  Commission 
 sought  to  protect  customer  privacy  rights  by  requiring  carriers  to  obtain  express  customer  consent  (i.  e.,  an  “opt-  in”  requirement)  prior  to  obtaining  access  to  CPNI. 
 The  U.  S.  Court  of  Appeals  for  the  Tenth  Circuit,  however,  struck  down  the  Commission’s  original  “opt-  in”  rules,  finding  that  the  rules  impermissibly  regulated 
 protected  commercial  speech  and  thus  violated  the  First  Amendment.  In  particular,  the  court  determined  that  the  “opt-  in”  rules  failed  constitutional  scrutiny  because 
 they  were  not  narrowly  tailored  as  a  result  of  the  Commission’s  failure  to  adequately  consider  an  “opt-  out”  regime. 


 Today’s  recommendation  seeks  to  find  the  appropriate  balance  between  the  continued  privacy  interests  of  consumers  and  the  First  Amendment  rights  of  carriers 
 to  communicate  with  their  customers.  While  I  generally  support  the  majority’s  dual  opt-  in/  opt-  out  approach  set  forth  in  the  decision,  I  remain  cognizant  of  the 
 imperfect  science  we  implement  today  to  effectuate  the  Court’s  mandate. 
 While  I  believe  that  the  notification  requirements  outlined  in  today’s  recommendation  to  protect  customer’s  privacy  interests  are  adequate,  we  may  need 
 to  do  more  to  empower  consumers  to  protect  their  personal  information  and  I  will  not  hesitate  to  revisit  this  decision  if  evidence  in  the  marketplace  indicates  that  these 
 rules  are  insufficient  to  protect  the  consumers’  right  to  safeguard  their  personal  information. 
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