July 15, 2016 VIA ELECTRONIC FILING Ms. Marlene H. Dortch Secretary, Federal Communications Commission 445 12th Street, SW Washington, D.C. 20554 Re:

Petition for Declaratory Ruling Clarifying that Notices Required by Section 76.1602(b) May Be Distributed by Email, MB Docket No. 16-126

Dear Ms. Dortch: In our reply comments in the above-referenced proceeding, the National Cable & Telecommunications Association (“NCTA”) and the American Cable Association (“ACA”) (collectively, the “Petitioners”) noted that our petition for declaratory ruling (“Petition”) was unanimously supported by the initial round of comments.1 The petition asked the Media Bureau (“Bureau”) to clarify that “written” notices required under Section 76.1602(b) could be distributed by electronic means reasonably calculated to reach individual customers, including, but not limited to, by email to subscribers for whom a cable operator has a confirmed email address and by provision of appropriately-noticed links to websites.2 The Petition’s proposal permitted customers to request a paper copy of the notice.3 The Petition also requested that, “given the latitude the Commission has already afforded cable operators under Section 76.1603,” the Bureau could clarify that electronic communications reasonably calculated to reach individual customers are also appropriate for notices required under Section 76.1603.4 In the reply round, however, a few parties that had not filed initial comments – the National Association of Telecommunications Officers and Advisors (“NATOA”), the Local Government Coalition, and the Minnesota Association of Community Telecommunications Administrators (“MACTA”) – weighed in with reply comments raising concerns that we did not have an opportunity to address. The parties did not generally oppose the use of electronic means 1

See Reply Comments of NCTA and ACA at 1-2.

2

Petition at 1.

3

Id. at 4 & n.9

4

Id. at 7.

to satisfy the statutory requirement of “written notice” – indeed, the Local Government Coalition specifically stated that it did “not file to object to the Petition’s requested relief.”5 All three parties acknowledged that electronic communications are an effective and efficient means for businesses to communicate with their customers. For instance, the Local Government Coalition said that it agreed with the Petition’s statement that electronic communications can “eliminate … environmental waste; … meet consumer expectations to receive communications …; improve communications between cable operators and their customers, including by enhancing the ease and speed with which notices can be updated or corrected; and afford cable operators great flexibility to match the electronic operations of their online and other competitors.”6 NATOA and MACTA acknowledged that transitioning from hard-copy notices to notices delivered by electronic communications reasonably calculated to reach individual customers would positively impact the environment by saving hundreds of millions of pieces of paper annually.7 But while supporting the thrust and underlying premises of the Petition, these parties have asked the Bureau to attach various conditions and “consumer safeguards” to its grant of the Petition. Such “safeguards” include requiring opt-in consent from customers; ensuring that customers can withdraw consent, including by electronic means; requiring cable operators to remind customers to keep their email address up to date; requiring cable operators to agree that electronic notices would constitute “commercial e-mails” under the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (“CAN-SPAM Act”); prohibiting cable operators from selling, bartering, or marketing to verified email addresses; prohibiting cable operators from using verified email addresses for billing or collection purposes; and ensuring that allowing electronic notifications to customers does not affect required notifications to local franchising authorities.8 Several of these conditions would make electronic notification substantially more burdensome and would, in fact, undermine the beneficial purposes of the Petition. The parties have offered little explanation of why this is necessary or beneficial to customers, and these conditions should be rejected. But certain other clarifications requested in these parties’ reply comments are unobjectionable. We discuss each of the reply commenters’ proposals below. 1. Opt-In Consent. The most problematic of these parties’ requests is that the Bureau impose an opt-in consent requirement before permitting cable operators to send the specified notices via electronic means reasonably calculated to reach individual customers.9 This requirement would essentially negate the intended benefits of the Petition, since cable operators

5

Local Government Coalition Reply Comments at 3.

6

Local Government Coalition Reply Comments at 2-3.

7

NATOA Reply Comments at 2 (acknowledging that electronic communications “would help lessen the environmental burden currently imposed by . . . hard-copy delivery”); MACTA Reply Comments at 2.

8

Local Government Coalition Reply Comments at 4-8; MACTA Reply Comments at 2; NATOA Reply Comments at 2.

9

Local Government Coalition Reply Comments at 4-5; NATOA Reply Comments at 2; MACTA Reply Comments at 2. -2-

already have the ability to send these notices electronically where they have opt-in consent.10 The purpose of the Petition was specifically to ask the Bureau to permit an approach that would not require opt-in consent. The Petition promises to eliminate waste associated with the production and delivery of hundreds of millions of pieces of paper, meet consumer expectations, and improve the quality of communications between cable operators and their customers.11 But these benefits could not be achieved if cable operators were required to seek and obtain express, individualized consent from literally tens of millions of subscribers. That is precisely the point of the Petition, and why granting the Petition is necessary. The Commission has not deemed opt-in consent to be necessary or useful for other electronic notifications to customers, such as annually required backup power notices,12 and it would be similarly unnecessary and counterproductive to impose such a requirement here. 2. Allowing Consumers to Withdraw Consent. NATOA and MACTA ask the Bureau to require that customers have the ability to withdraw their consent at any time.13 The Petition contemplated that consumers could opt out of electronic notification but did not expressly state that the option could be exercised at any time. We would have no objection to such a clarification. 3. Concerns About Verified Email Addresses. The Local Government Coalition states that “[i]t is not clear from the Petition how the companies plan to go about obtaining verified email addresses from their subscribers,”14 and it worries that cable operators might use any email address that it knows to be associated with a customer, even if the customer does not regularly use that address. It was not the Petitioners’ intention to seek approval to use simply any email address that might be associated with a customer, whether the email account is actively used or not. The Petition stated that “[a]pproval of this proposal would enable cable operators to send email notices to customers for whom they have a confirmed (i.e. customersupplied) email address,”15 We have no objection to a clarification to the effect that each of the following would constitute a “verified email address”: one that the customer has provided to the cable operator (and not vice versa) for purposes of receiving communication from one that the customer regularly uses to communicate with the cable operator, or one that has otherwise been confirmed by the customer as an appropriate vehicle for the delivery of notices. 4. Reminding Customers to Keep Their Email Addresses Up to Date. NATOA and MACTA also urge the Bureau to require cable operators to inform consumers of the requirement 10

The E-Sign Act permits entities to obtain opt-in consent as one potential avenue to distribute “written” notices in electronic form. See 15 U.S.C. § 7001(c)(1).

11

Petition at 2-3.

12

See id. At 5-6.

13

NATOA Reply Comments at 2; MACTA Reply Comments at 2.

14

Local Government Coalition Reply Comments at 5.

15

Petition at 3 (emphasis added). -3-

to keep their email addresses up to date.16 This is an unnecessary obligation. Consumers today receive email communications and notifications from a multitude of companies with which they do business, and they are accustomed to the need to inform such companies of a change of email address. None of these companies are required to remind their customers to do so (nor did the Commission impose any such requirement in the Battery Backup Order).17 5. Electronic Opt Out. The Local Government Coalition requested that customers be able to request a paper version of the notices simply by clicking on a link in the emailed version.18 We had proposed that the emailed version include a phone number to call to opt out of electronic notification, but we acknowledge that there may be other equally easy ways for customers to notify their cable operator. There is no need for the Bureau to specify one precise option (telephone, postal mail, email, links to websites) that each operator must make available, so long as the option chosen is readily available and not difficult to exercise. 6. CAN-SPAM Act. The Local Government Coalition asks that the cable industry agree that its Section 76.1602(b) notices, if provided electronically, would be deemed “commercial emails” and not “transactional or relationship messages” under the CAN-SPAM Act.19 This would, in its view, effectively require cable operators to obtain affirmative consent before sending such emails.20 This appears to be just another effort to impose the opt-in proposal discussed above, which would undermine the purposes and benefits of allowing electronic notification. In any event, the Coalition’s effort to use CAN-SPAM for such purposes is wholly misplaced. First of all, administration and interpretation of the CAN-SPAM Act is generally outside the Commission’s jurisdiction. With the limited exception of rules for messages sent to mobile devices,21 the CAN-SPAM Act is overseen by the Federal Trade Commission, not the FCC. Imposing CAN-SPAM Act requirements – or seeking industry concessions pertaining to that statute – is not a proper role for the Commission, much less the Media Bureau. Second, the notices at issue here are not “commercial email” within the meaning of the CAN-SPAM Act. The CAN-SPAM Act’s strongest protections are against commercial emails, the primary purpose of which is to advertise or promote a commercial product or service.22 This does not apply to the notices at issue. To the contrary, emails notifying customers of the details of the service they have purchased are precisely the sort of “transactional or relationship messages”23 that are specifically exempt from the CAN-SPAM requirements. It would be 16

NATOA Reply Comments at 2; MACTA Reply Comments at 2.

17

See Ensuring Continuity of 911 Communications, Report and Order, 30 FCC Rcd. 8677 (Aug. 7, 2015).

18

Local Government Coalition Reply Comments at 7-8.

19

Id. at 5-6.

20

Id.

21

See 47 C.F.R. § 64.3100.

22

15 U.S.C. § 7702(2)(A).

23

15 U.S.C. § 7702(2)(B). -4-

especially absurd to treat emails containing information required by the government as the sort of unsolicited commercial mail to which CAN-SPAM’s protections are meant to apply. Third, even if Section 76.1602(b) notices were somehow viewed as “commercial email,” the CAN-SPAM Act would not impose the opt-in requirements suggested by the Local Government Coalition. Entities are not required by that law to obtain affirmative opt-in consent before sending commercial emails. The CAN-SPAM Act requires initially that an opt-out mechanism be provided for commercial emails and that it be honored.24 Only after a consumer exercises his or her opt-out preference is a customer required to obtain that consumer’s opt-in consent before sending him or her any future commercial emails.25 7. Selling, Bartering, or Marketing of Verified Email Addresses and Using Verified Email Addresses for Billing or Collection Purposes. The Local Government Coalition asks the Bureau to prohibit cable operators from selling, bartering, or marketing with the verified email addresses collected to disseminate the required notices.26 It also alleges that the Petition could be “an excuse to expand the rule or collect emails for purposes of billing or collections.”27 There is no basis – and no history of email abuse – to support these conjectural concerns. In any event, cable operators’ use of verified email addresses remains subject to any and all applicable regulations – cable-specific or rules of general applicability, and already-existing or whenever adopted in the future – aimed at the improper or unauthorized use of email addresses and email communications.28 There is no need to create any new restrictions on the use of such addresses in connection with their authorized use for mandatory customer notifications. 8. Impact on Notifications to Local Franchising Authorities. The Local Government Coalition asks the Bureau to ensure that the proposed relief has no impact on notifications to local franchising authorities (“LFAs”).29 The relief sought by the Petition was focused on the communications to subscribers required by Sections 76.1602(b) and 76.1603.30 The Petition sought no changes to or clarification of any rule pertaining to notifications to LFAs, and we have no objection to the Bureau clarifying that the declaratory ruling does not affect the means by which notices are disseminated to LFAs.

24

15 U.S.C. § 7704(3)(A).

25

15 U.S.C. § 7702(4)(B).

26

Local Government Coalition Reply Comments at 6.

27

Id. at 7.

28

For example, Section 631 of the Communications Act protects subscribers by requiring cable operators to provide annual notice of how subscribers’ personally identifiable information (“PII”), including email addresses, will be used. 47 U.S.C. § 551(a)(1). Section 631 also ensures that, absent consent, subscribers’ PII will be used only “to render a cable service or other service provided by the cable operator to the subscriber” and won’t be disclosed. Id. at § 551(b), (c). It further entitles subscribers to be afforded access to all of their PII which is collected and maintained by the cable operator. Id. at § 551(d).

29

Id. at 8.

30

Petition at 1, 7. -5-

9. Concerns About Providing Notice to All Customers Via Electronic Means. NATOA and MACTA also raised concerns about “whether the use of website links or other ‘electronic measures’ could provide all subscribers with the information required pursuant to Section 76.1602(b).”31 Their concerns are based on a misunderstanding of the Petition’s request. The Petition does not seek to implement a “one-size-fits-all” method of electronic communication to provide the required notices to all customers. Under the Petition, cable operators can only use electronic means to disseminate the required notices under Sections 76.1602(b) and 76.1603 if that specific method of communication is reasonably calculated to reach the individual customer. If it is not, another suitable electronic means must be used, or a paper notice must be provided. As such, this approach is fully in accord with the Battery Backup Order,32 and no additional safeguards are required to ensure adequate notice. For the reasons set forth in the Petition, in all the comments in the initial round, and in NCTA and ACA’s reply comments, we request that the Bureau act expeditiously to issue the clarification sought by NCTA and ACA to permit electronic notices reasonably calculated to reach individual customers under Sections 76.1602(b) and 76.1603. Respectfully submitted, /s/ Rick Chessen Mary C. Lovejoy Vice President of Regulatory Affairs Ross J. Lieberman Senior Vice President of Government Affairs American Cable Association 2415 39th Place, N.W. Washington, D.C. 20007 (202) 603-1735

Rick Chessen Michael S. Schooler Diane B. Burstein National Cable & Telecommunications Association 25 Massachusetts Ave., N.W. – Suite 100 Washington, D.C. 20001-1431 (202) 222-2445

31

NATOA Reply Comments at 2; MACTA Reply Comments at 2.

32

See Note 20, supra. -6-