PROPOSED RULEMAKING
PENNSYLVANIA PUBLIC UTILITY COMMISSION
[ 52 PA. CODE CH. 63 ]
[40 Pa.B. 5819]
[Saturday, October 9, 2010][L-2009-2123673/57-278]
Call Recording for Telephone Companies The Pennsylvania Public Utility Commission, on April 15, 2010, adopted a proposed rulemaking order which establishes regulatory conditions under which telephone companies may record customer communications for training and quality of service purposes.
Executive Summary
This proposed rulemaking was prompted by requests in 2007-2008 from eight local exchange carriers (LECs) requesting waivers of § 63.137 (relating to service monitoring and related matters) to allow them to record telephone calls between their customers and employees for training and quality of service purposes. Currently, under § 63.137, telecommunications carriers cannot record customer contact calls for any reason. Other utilities do not have restrictions and are able to record calls for the training and quality of service purposes. The eight LECs were granted individual waivers and the Commission established terms and conditions for a temporary blanket waiver of § 63.137(2) in a Blanket Waiver Order at Docket No. M-2008-2074891.
The instant Proposed Rulemaking Order entered on April 19, 2010, at Docket No. L-2009-2123673 proposes to amend § 63.137 to remove the prohibition against call recording and to establish parameters for permitting call recording of customer contact calls for training and quality of service purposes. Additionally, the proposed rulemaking would make the ministerial edit of changing ''employe'' to ''employee.''
This Proposed Rulemaking Order seeks to benefit every LEC by allowing uniformity across multistate service territories and establishing consistency in utility regulation. The jurisdictional utilities affected by the regulation will benefit from the regulation as they will know what is expected of them if they choose to record calls. The regulations are designed to help the utility improve training methods and quality of service provided to customers by their employees. Better trained utility employees and improved quality of service benefits utility customers. The regulations are not financially or unduly burdensome upon the jurisdictional utilities because the utilities can continue to operate without choosing to record calls. Furthermore, the utilities operating under the individual waivers and under the blanket waiver have not noted problems with the terms of those waivers that would be codified as regulations under the proposed rulemaking. Utilities that have not requested a waiver or opted-into the blanket waiver will be saved the time and expense of such a request.
The Commission will benefit from a more uniform approach to the methods that utilities may use to improve quality of service and to ensure adequate employee training. Additionally, it will save time and money by eliminating the need to process individual requests for waivers or for opting into the blanket waiver.
Public Meeting held
April 15, 2010Commissioners Present: James H. Cawley, Chairperson; Tyrone J. Christy, Vice Chairperson; Robert F. Powelson; Wayne E. Gardner
Proposed Rulemaking: Elimination of the
Call Recording Prohibition in 52 Pa. Code § 63.137 and Establishment of Regulations to Govern Call Recording for Telephone Companies;
Doc. No. L-2009-2123673
Proposed Rulemaking Order By the Commission:
On July 29, 2009, at Docket No. M-2008-2074891 (Blanket Waiver Order), the Pennsylvania Public Utility Commission adopted a blanket partial waiver of the call recording prohibition in § 63.137(2) regarding telephone companies.1 By this order, we issue for comment proposed regulations that would modify the regulatory prohibition against call recording by telephone companies and would establish regulatory conditions under which telephone companies may record customer communications. Additionally, we shall propose the ministerial edit of changing ''employe'' to ''employee'' throughout § 63.137.
Background § 63.137(2)
Section 63.137(2) was promulgated in an effort to balance customer privacy interests with the business interests of the telephone companies.2 To establish this balance, telephone company call center supervisors are allowed to monitor communications between customers and utility service representatives through ''live'' or ''real-time'' listening in, but calls may not be recorded. Substantively, § 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 § 63.137(2) explains, in several subparts, the types of service evaluation and monitoring of customer telephone calls a telephone company may perform in the provision of service to its customers. No other jurisdictional utility industry is subject to similar customer or call-center call-recording prohibitions under our regulations.
On November 20, 2008, we entered a Tentative Order at Docket No. M-2008-2074891 soliciting comments on proposed guidelines for a blanket waiver to avoid addressing waiver requests on a piecemeal basis in the future. The Tentative Order proposed a process whereby a telephone company may petition the Commission for a 1-year partial waiver of § 63.137(2) and up to two 1-year extensions, subject to proposed uniform terms and conditions applicable to operations under the temporary partial waiver.
The Tentative Order provided notice to the public, in general, and to the Office of Consumer Advocate (OCA), the Office of Small Business Advocate (OSBA) and the Office of Trial Staff (OTS), in particular. The Pennsylvania Telephone Association (PTA) filed the only comments, emphatically asserting that continued requirement of individual petitions with a 1-year limitation and two renewals would not be consistent with a ''blanket'' waiver. PTA suggested the Commission handle this matter as it handled a similar matter in Rulemaking re: Provision of Bundled Service Package Plans, Docket No. L-00060179 (July 3, 2006) (BSP Rulemaking Order), in which the Commission established conditions under which a blanket waiver was granted regarding § 64.21. Companies were required to agree to comply with the specific conditions to qualify for the automatic waiver.
By order entered July 29, 2009, we found merit in the PTA's comments and adopted a blanket partial waiver of § 63.137(2) permitting call recording under certain circumstances. Specifically, the Blanket Waiver Order permits telephone companies to record customer calls for quality of service and training purposes subject to the following terms and conditions:3
• A carrier seeking to operate under the Blanket Waiver Order is required to file notice with the Secretary of the Commission, with a copy to the Commission's Bureau of Consumer Services, of its intent to do so prior to beginning operations, giving at least 30 days notice to the Commission, and must also provide its customers with a bill insert (or make an equivalent customer contact) explaining the call recording process and the opt-out process to customers at least 30 days before beginning call recording operations.
• A carrier with a pre-existing waiver that had not commenced actual recording of customer calls under the pre-existing waiver could only subsequently begin call recording under the Blanket Waiver Order terms and conditions.
• A carrier that began call recording of customer calls without a previously granted specific waiver or under the Blanket Waiver Order had 20 days to come into compliance with that order or had to discontinue call recording.
• Telephone companies must provide a prerecorded message to the effect that the call may be monitored or recorded for training or quality control purposes.
• The prerecorded message must advise callers that they have the option to discontinue the call and to request a call back from an unrecorded line and must also provide instructions on how to request a call back prior to any aspect of the call being recorded.
• Recorded telephone calls may be used solely for the purpose of training or measuring and improving service quality.
• Recorded calls must be erased after a 90-day (or shorter) retention period.
• All other provisions of § 63.137 remain in full force and effect.
When we established terms and conditions for a temporary partial waiver of § 63.137(2) in the Blanket Waiver Order, we noted that we would take under consideration at another docket the matter of opening a rulemaking to eliminate the call recording prohibition. This order begins that proceeding.
Existing waivers
Eight petitioning LECs received waivers allowing them to record, for training and quality of service purposes, customer calls to their call centers.4 Additionally, several telephone companies have provided notice that they have opted to operate under the Blanket Waiver Order. The amendments to § 63.137(2) proposed herein are consistent with the waivers granted to the petitioning LECs and to telephone companies operating under the Blanket Waiver Order and would require no further action on their part to remain in compliance.
Discussion Currently, § 63.137(2) prohibits telephone companies except those with specific waivers and those operating under the Blanket Waiver Order from recording customer contact calls. The strikingly similar arguments presented by the petitioning LECs and by PTA in support of a blanket waiver, coupled with the differences in the specific features and permissions requested by those petitioning LECs, lead us to conclude that this Commission should institute a generic rulemaking on this matter. Among other arguments supporting a change in the regulations, the petitioning LECs noted that telephone companies are the only class of jurisdictional utilities prohibited from recording calls for any purpose including training and measuring and improving service quality. Other utilities, as well as other businesses and this Commission, routinely record calls for service quality purposes within the bounds of applicable laws concerning wiretaps and trap and trace devices.
Throughout our individual waiver and the blanket waiver deliberations, we have consistently rejected the use of the calls recorded for ''evidentiary'' purposes. We propose to continue to do so, because we believe that permitting calls, taped under the mantle of training and quality service improvement purposes and then used for an evidentiary purpose, may violate 18 Pa.C.S. Chapter 57 (relating to Wiretapping and Electronic Surveillance Control Act) (Wiretap Act). None of the petitioning LECs that were granted partial waivers of § 63.137(2) have been granted permission to use the recorded calls for evidentiary purposes, and the Blanket Waiver Order is consistent on this point. We see no reason to change our position here on this matter in the context of a proposed rulemaking. Accordingly, the proposed revisions to existing regulations are also consistent on this point.
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) (relating to exceptions to prohibition of interception and disclosure of communications).
On a going-forward basis, we propose changes to § 63.137(2) as set forth in Annex A. These changes are consistent with the analysis underlying the Blanket Waiver Order. It is expressly noted that the amendments proposed to § 63.137(2) would neither enlarge nor limit, in any way, a jurisdictional utility's obligations or a customer's protections under either to the Wiretap Act or to any applicable Federal statutes or regulations.
In addition to the substantive changes proposed, we also intend to address an inconsistency within § 63.137. Both ''employe'' and ''employee'' are used in various places in § 63.137. In an effort to provide consistency, we propose to change the spelling of ''employe'' to ''employee'' to reflect the generally accepted form of the term.
Conclusion The use of a regulation to address the recording of customer calls for telephone companies not only will increase efficiency in industry operations but also will facilitate the entry and participation of competitors in the telecommunications market by allowing each to standardize operations throughout its National service territories. Additionally, various telephone companies in this Commonwealth have had the ability to record customer contact calls since late 2007 under either to specific waivers or to the blanket waiver process, and we have not seen any problems or customer complaints arise. The blanket waiver process has been in place since late July 2009. The telephone companies have not requested any alterations to the terms of the blanket waiver. Thus, it appears that the terms of the Blanket Waiver Order have provided the telecommunications industry with a workable tool to balance any concerns relative to quality of customer service, employee education, and privacy. The purpose of this proposed rulemaking is to develop and to codify these standards for the telecommunications market in this Commonwealth. We anticipate and appreciate industry comments on this proposed rulemaking.
Accordingly, under sections 501, 504, 2203(12), 2205, and 2208 of the Public Utility Code, 66 Pa.C.S. §§ 501, 504, 2203(12), 2205 and 2208; sections 201 and 202 of the act of July 31, 1968 (P. L. 769 No. 240), 45 P. S. §§ 1201 and 1202, and the regulations promulgated there under at 1 Pa. Code §§ 7.1, 7.2 and 7.5; section 204(b) of the Commonwealth Attorneys Act, 71 P. S. § 732.204(b); section 745.5 of the Regulatory Review Act, 71 P. S. § 745.5; and section 612 of The Administrative Code of 1929, 71 P. S. § 232, and the regulations promulgated there under at 4 Pa. Code §§ 7.231—7.234, we are proposing to amend our regulations as set forth in Annex A; Therefore,
It Is Ordered That:
1. A rulemaking docket shall be opened to amend § 63.137(2) as set forth in Annex A.
2. The Secretary shall submit this order and Annex A to the Office of Attorney General for review as to form and legality and to the Governor's Budget Office for review of fiscal impact.
3. The Secretary shall submit this order and Annex A for review and comments to the Independent Regulatory Review Commission and the Legislative Standing Committees.
4. The Secretary shall certify this order and Annex A and deposit them with the Legislative Reference Bureau to be published in the Pennsylvania Bulletin.
5. Persons may either eFile or file an original and 15 copies of written comments referencing the docket number of the proposed regulations within 45 days of publication of notice of this order in the Pennsylvania Bulletin. Instructions for eFiling may be found at http://www.puc. state.pa.us/efiling/default.aspx. A paper original accompanied by the e-confirmation page or a cover letter with the eFiling Confirmation Number must be provided to the Secretary of the Commission within 3 days of an eFiling being submitted. If not eFiling, then the original and the requisite number of copies must be filed with the Pennsylvania Public Utility Commission, Attn.: Secretary, P. O. Box 3265, Harrisburg, PA 17105-3265. To facilitate posting, filed comments also should be forwarded by means of e-mail, in Word or Word-compatible format, to Tawana Dean, tadean@state.pa.us; Melissa Derr, mderr@state.pa. us; Louise Fink Smith, finksmith@state.pa.us; and Cyndi Page, cypage@state.pa.us.
6. A copy of this order and Annex A shall be served on the PTA, the OCA, the OSBA and the OTS and a copy of this order and Annex A shall be posted on the Commission's web site.
7. The contact persons for this proposed rulemaking are Tawana Dean, tadean@state.pa.us, Bureau of Consumer Services; Melissa Derr, mderr@state.pa.us, Bureau of Fixed Utility Services; and Louise Fink Smith, finksmith@state.pa.us, Law Bureau.
ROSEMARY CHIAVETTA,
SecretaryFiscal Note: 57-278. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 52. PUBLIC UTILITIES
PART I. PUBLIC UTILITY COMMISSION
Subpart C. FIXED SERVICE UTILITIES
CHAPTER 63. TELEPHONE SERVICE
Subchapter J. CONFIDENTIALITY OF CUSTOMER COMMUNICATIONS AND INFORMATION § 63.137. Service monitoring and related matters.
This section sets forth procedures for service evaluation and monitoring; use of pen registers and trap and trace devices; and responses to government requests for assistance in conducting wiretap, pen register, trap and trace and other types of investigations.
* * * * * (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 between telephone company employees and customers, potential customers, or applicants is [prohibited] permitted only as provided in this paragraph. All other recording of conversations is prohibited.
(i) Service evaluation. A telephone company may engage in the sampling of customer communications by telephone company [employes] employees or automated equipment to measure service quality. This sampling of customer communications shall be kept to the minimum needed to measure service quality. Service evaluation facilities may not have monitoring access points outside official evaluation quarters. Entry to evaluation quarters shall be strictly controlled. During periods when evaluation quarters are not in use or when otherwise considered appropriate, the quarters shall be securely locked or the equipment rendered inoperative or accessible only by authorized personnel. Access to service evaluation documents that contain individual [employe] employee-customer contact information shall be closely guarded to protect the customer's privacy.
(ii) Maintenance monitoring. A telephone company may engage in the monitoring of telephone company facilities by an [employe] employee entering the circuit to listen and carry out tests to determine whether noise, ''cross-talk,'' improper amplification, reproduction or other problems may exist. This includes the mandatory routines covered by equipment test lists, tracing of circuits for corrective action and other similar activities. The monitoring may not interfere with the voice or data information being carried.
(iii) Administrative monitoring. A telephone company may engage in the monitoring of telephone company [employe] employee contacts with customers and with other [employes] employees which have a direct bearing on the quality of service provided to customers. The monitoring equipment shall be secure at all times and only used by authorized persons. The monitoring may be performed from a remote location. When the equipment is in a remote location and is not in use, it shall be secured or made inoperative or accessible only by authorized personnel.
(iv) Call recording. A telephone company may record calls by employees to or from customers, potential customers, or applicants only under the following circumstances:
(A) A telephone company shall give notice to its customers with a bill insert or equivalent customer contact explaining the call recording process and the opt-out process at least 30 days before commencing call recording or to new customers at the time service commences.
(B) A telephone company shall provide callers calling a company telephone number equipped to record customer or prospective customer calls with a prerecorded message that the call may be monitored or recorded for training or quality control purposes.
(C) The prerecorded message must advise callers that they have the option to discontinue the call and to request a call back on an unrecorded line and provide instructions on how to request a call back prior to any aspect of the call being recorded.
(D) Recorded telephone calls shall be used solely for the purpose of training or measuring and improving service quality and may not be used for formal or informal evidentiary purposes.
(E) Recorded calls shall be erased after a 90-day or shorter retention period.
* * * * * 1 The term ''telephone company'' as defined in § 63.132 incorporates all jurisdictional telephone companies:
Telephone company—A public utility which provides regulated telecommunication services subject to Commission jurisdiction.2 The provisions of § 63.137(2) were issued under 66 Pa.C.S. §§ 501 and 1501 and were adopted July 24, 1992, effective September 23, 1992, 22 Pa.B. 3892.
3 Telephone companies may still petition individually for a partial temporary waiver of § 63.137(2).
4 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). 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 at Docket No. P-2008-2051138 (September 23, 2008).
[Pa.B. Doc. No. 10-1933. Filed for public inspection October 8, 2010, 9:00 a.m.]
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