NOTICES

Tentative Order

[38 Pa.B. 6673]
[Saturday, December 6, 2008]

Public Meeting held
September 11, 2008

Commissioners Present: James H. Cawley, Chairperson; Tyrone J. Christy, Vice Chairperson; Robert F. Powelson; Kim Pizzingrilli; Wayne E. Gardner

Guidelines for Temporary Waiver of the Call Recording; Prohibition Set Forth at 52 Pa. Code § 63.137(2);
Doc. No. M-2008-2074891

Tentative Order

By the Commission:

   By order entered on September 23, 2008, at Docket No. P-2008-2051138, we granted, in part, the petition of four D&E Local Exchange Carriers (LECs) for partial waiver of 52 Pa. Code § 63.137(2), which, inter alia, prohibits recording telephone calls between customers and telephone company service representatives.¹ We had previously granted similar waivers to two Verizon LECs and two Full Service LECs.² Specifically, the eight petitioning LECs received waivers allowing them to record, for training and quality of service purposes, customer calls to their call centers. Rather than continue to address such waivers on a piecemeal basis, we will address waiver of section 63.137(2) on an industry-wide basis in this tentative order by proposing guidelines for terms and conditions that will qualify for a temporary partial waiver of section 63.137(2). Comments are due in hand 30 days after publication of this tentative order in the Pennsylvania Bulletin.

Background

   Currently, all ''telephone companies,''³ except the eight LECs that have been granted partial waivers, are expressly prohibited from recording telephone conversations between customers and call center personnel. 52 Pa. Code § 63.137(2). As we noted in the Verizon order, section 63.137(2) was promulgated in an effort to balance customer privacy interests with business interests of the telecommunications utilities.⁴ To establish this balance, telecommunications call center supervisors are allowed to monitor communications between customers and service representatives through ''live'' or ''real-time'' listening in, but calls may not be recorded.

   Substantively, 52 Pa. Code § 63.137(2) provides, in relevant part, as follows:

(2)  Service evaluation and monitoring. The telephone company may evaluate and monitor those aspects of its operations, including customer communications, necessary for the provision of service to its customers. The recording of conversations is prohibited.

   (Emphasis added.) The remainder of section 63.137(2) explains, in several subparts, the types of service evaluation and monitoring of customer telephone calls a telecommunications company may perform in the provision of service to its customers.

   No jurisdictional utility industry outside the telecommunications industry is subject to similar customer or call-center call-recording prohibitions under our regulations.

Discussion

   The strikingly similar arguments presented by the eight petitioning LECs in support of their individual waiver requests, coupled with the differences in the specific features and permissions requested by the petitioning LECs, lead us to conclude that establishing guidelines for terms and conditions for waivers for call recording practices may be necessary until such time as this Commission can institute a generic rulemaking regarding the applicable regulations. Among other arguments related to improving customer service, the eight LECs noted, in support of their waiver requests, that they are the only class of jurisdictional utilities that is prohibited from recording calls for any purpose including training and measuring and improving service quality. Other utilities, as well as other businesses including this Commission, routinely record calls for service quality purposes within the bounds of applicable laws concerning wiretaps and trap and trace devices.

   Rather than continue to address the concerns of LECs in a piecemeal fashion, we shall propose herein establishing guidelines regarding the terms and conditions that will qualify for temporary waiver of the call recording provision in section 63.137(2). Procedurally, section 63.53(e)⁵ of our regulations permits us to waive our regulations under certain circumstances and after notice to the affected parties.

   Under section 63.53(e), notice of a request for exemption must be provided to the persons who would be affected by the exemption. This tentative order provides notice to the public, in general, of the proposal to adopt guidelines for terms and conditions for temporary waivers of the call recording prohibition in our regulations. Further, under the proposed guidelines, customers will be ensured the option of refusing to be recorded by requesting a call back from a service representative in which case any waiver of the section 63.137(2) call recording prohibition will not affect them because the call back will not be recorded.

   Under the proposed guidelines, petitions for waiver would have to include the following elements:

   *  Recorded calls would be erased after a 90-day retention period.

   *  Customers calling a call center equipped to record customer calls would hear a prerecorded message to the effect that ''this call may be monitored or recorded for training or quality control purposes.''

   *  The system will afford customers the option to discontinue the call and request a callback from an unmonitored line.

   *  Recorded telephone calls will be used solely for the purpose of training or measuring and improving service quality.

   *  The waiver will be for 1 year, commencing with the utility's go-live date.

   *  The utility may petition for up to two 1-year extensions of an initial waiver.

   *  Petitions for the extensions need to be filed at least 2 months prior to the end of any existing waiver.

   *  Petitions for extension will contain a status report detailing any customer complaints about the operation of the call recording program as well as details on the resolution of the complaint.⁶

   Parties filing comments to this tentative order should address whether they believe further or alternate limitations would be appropriate. Other matters to be commented upon include but are not limited to:

   *  When the initial 1-year period would commence.

   *  Whether the utility's intention to utilize a call recording system should be addressed in the utility's tariff.

   *  Alternative terms and conditions.

   The D&E LECs petitioned to be able to use the recorded calls for ''evidentiary'' purposes. We rejected that use, asserting that we believe that permitting calls taped under the mantle of training and quality service improvement purposes to be used for any evidentiary purpose may violate Pennsylvania's wiretapping law. Thus, none of the eight petitioning LECs that have been granted partial waivers of section 63.137(2) have been granted permission to use the recorded calls for evidentiary purposes. We see no reason to change our position on this matter in the context of establishing guidelines for terms and conditions for waivers. The Wiretap Act provides, in pertinent part, that:

It shall not be unlawful and no prior court approval shall be required under this chapter for:

*      *      *      *      *

(6)  Personnel of any public utility to record telephone conversations with utility customers or the general public relating to receiving and dispatching of emergency and service calls provided there is, during such recording, a periodic warning which indicates to the parties to the conversation that the call is being recorded.

*      *      *      *      *

(15)  The personnel of a business engaged in telephone marketing or telephone customer service by means of wire, oral or electronic communication to intercept such marketing or customer service communications where such interception is made for the sole purpose of training, quality control or monitoring by the business, provided that one party involved in the communications has consented to such intercept. Any communications recorded pursuant to this paragraph may only be used by the business for the purpose of training or quality control. Unless otherwise required by Federal or State law, communications recorded pursuant to this paragraph shall be destroyed within one year from the date of recording. 18 Pa.C.S. § 5704(6) and (15). Accordingly, use of recorded customer calls is and will remain limited to training and quality control purposes, and the retention of recordings for ''evidentiary'' or other purposes is and will remain prohibited.⁷

By establishing guidelines for terms and conditions of waivers, prospectively, we may create a disparity between the waivers previously granted (to the eight LECs) and any waivers that would be granted subsequently to the establishment of such guidelines in certain minor aspects. Specifically, under the guidelines for terms and conditions of waivers that we propose for prospective application, we would require that such waivers be granted for a 1-year period with the possibility of two 1-year extensions. Also, we would also require that status reports be filed with requests for extensions. Further, we would also require that the duration for which a call could be retained be set at 90 days, and, finally, that the utilities could not use the recorded calls in either formal or informal complaint cases. In all other respects, however, the limitations proposed herein mirror the conditions imposed in the partial waivers previously granted to the eight petitioning LECs. Parties filing comments to this tentative order should address whether they believe that further or alternate limitations would be appropriate for the eight LECs.

In granting the petition filed by the Verizon, Full Service, and D&E LECs, we noted that a rulemaking proceeding may ultimately be appropriate in order to determine whether a revision to section 63.137(2) is necessary to address this issue on an industry-wide basis. Parties filing comments to this tentative order should address whether establishing guidelines terms and conditions for waivers is sufficient or whether there are further related matters that should be addressed in a rulemaking.

Conclusion

   Under the totality of the circumstances, the Commission finds, under its authority under 66 Pa.C.S. § 501(a) and 66 Pa.C.S. § 3019(b)(2), that establishing guidelines for terms and conditions for waivers under which telecommunications utilities may request a temporary waiver of the call recording prohibition at 52 Pa. Code § 63.137(2) may be warranted. Comments on this proposal are due in hand within 30 days of publication of this tentative order in the Pennsylvania Bulletin. Interested parties are requested to specifically address the points raised here in and are free to raise additional points in their comments. It is expressly noted neither the establishment of guidelines for terms and conditions for waivers nor the granting of a partial waiver would enlarge or limit, in any way, a jurisdictional utility's obligations or a customer's protections pursuant either to Pennsylvania's Wiretapping and Electronic Surveillance Control Act (18 Pa.C.S. §§ 5701--5704), or to any applicable Federal statutes or regulations; Therefore,

It Is Ordered:

   1.  That interested parties are requested to comment on the proposal to establish guidelines for terms and conditions under which telecommunications utilities may petition for temporary waivers of the call recording prohibition contained in 52 Pa. Code § 63.137(2), consistent with this Order.

   2.  That all other provisions of 52 Pa. Code § 63.137(2) remain in full force and effect.

   3.  That interested parties may file comments to this tentative order within 30 days after the date of publication of this tentative order in the Pennsylvania Bulletin. The mailbox rule does not apply.

   4.  The contact persons for this tentative order are Louise Fink Smith, Esq., Law Bureau, (717) 787-8866, finksmith@state.pa.us, Melissa Derr, Bureau of Fixed Utility Services, (717) 783-6171, mderr@state.pa.us, and Holly Frymoyer, Bureau of Consumer Services, (717) 783-1628, mfrymoyer@state.pa.us. An electronic version of any comments filed must be provided (by e-mail) to Louise Fink Smith, Melissa Derr and Hally Frymoyer at the time of filing.

JAMES J. MCNULTY,   
Secretary

[Pa.B. Doc. No. 08-2220. Filed for public inspection December 5, 2008, 9:00 a.m.]

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¹  Buffalo Valley Telephone Company, Conestoga Telephone and Telegraph Company, Denver and Ephrata Telephone and Telegraph Company, and D&E Systems, Inc., were granted partial waivers of 52 Pa. Code § 63.137(2) at Docket No. P-2008-2051138 (September 23, 2008).

²  Verizon Pennsylvania Inc. and Verizon North Inc. (Verizon LECs) were granted partial waivers at Docket No. P-00072333 (December 20, 2007). Full Service Computing Co. and Full Service Network LP (Full Service LECs) were granted partial waivers at Docket No. P-2008-2020446 (May 5, 2008).

³  Section 63.137(2) applies to ''telephone companies,'' which would include all jurisdictional telecommunications entities.

⁴  The provisions of section 63.137(2) were issued pursuant to 66 Pa.C.S. §§  501 and 1501, and were adopted July 24, 1992, effective September 23, 1992, 22 Pa.B. 3892.

⁵  52 Pa. Code § 63.53 (e) provides that:
If unreasonable hardship to a person or to a utility results from compliance within this subchapter, application may be made to the Commission for modification of the section or for temporary exemption from its requirements. The adoption of this subchapter by the Commission will not preclude the altering or amending of the provisions in a manner consistent with applicable statutory procedures, nor will the adoption of this subchapter preclude the Commission from granting temporary exemptions in exceptional cases. A person or utility that files an application under this section shall provide notice to a person who may be affected by the modification or temporary exemption. Notice may be made by a bill insert or in another reasonable manner.

⁶  In other proceedings where we have granted waivers of our regulations, we have required status reports from the utility and imposed time or duration limits on waivers. See, for example, The Peoples Natural Gas Company, d/b/a Dominion Peoples, Docket No. P-00052159 (June 23, 2006); and Petition of Columbia Natural Gas of Pennsylvania, Docket No. P-00062230 (March 27, 2007).

⁷  This prohibition also prevents the use of recordings in informal complaint proceedings before the Commission.

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