47 U.S.C. § 274 — Electronic publishing by Bell operating

Page 120 TITLE 47—TELECOMMUNICATIONS § 274 wise unaffiliated Bell operating company of less than 1 percent of Bell Communica- tions Research’s total voting equity shall not be considered to be an equity interest under this paragraph. (B) The term ‘‘generic requirement’’ means a description of acceptable product attributes for use by local exchange carriers in establishing product specifications for the purchase of telecommunications equipment, customer premises equipment, and software integral thereto. (C) The term ‘‘industry-wide’’ means ac- tivities funded by or performed on behalf of local exchange carriers for use in providing wireline telephone exchange service whose combined total of deployed access lines in the United States constitutes at least 30 per- cent of all access lines deployed by tele- communications carriers in the United States as of February 8, 1996. (D) The term ‘‘certification’’ means any technical process whereby a party deter- mines whether a product, for use by more than one local exchange carrier, conforms with the specified requirements pertaining to such product. (E) The term ‘‘accredited standards devel- opment organization’’ means an entity com- posed of industry members which has been accredited by an institution vested with the responsibility for standards accreditation by the industry. (e) Bell operating company equipment procure- ment and sales (1) Nondiscrimination standards for manufac- turing In the procurement or awarding of supply contracts for telecommunications equipment, a Bell operating company, or any entity act- ing on its behalf, for the duration of the re- quirement for a separate subsidiary including manufacturing under this chapter— (A) shall consider such equipment, pro- duced or supplied by unrelated persons; and (B) may not discriminate in favor of equip- ment produced or supplied by an affiliate or related person. (2) Procurement standards Each Bell operating company or any entity acting on its behalf shall make procurement decisions and award all supply contracts for equipment, services, and software on the basis of an objective assessment of price, quality, delivery, and other commercial factors. (3) Network planning and design A Bell operating company shall, to the ex- tent consistent with the antitrust laws, en- gage in joint network planning and design with local exchange carriers operating in the same area of interest. No participant in such planning shall be allowed to delay the intro- duction of new technology or the deployment of facilities to provide telecommunications services, and agreement with such other car- riers shall not be required as a prerequisite for such introduction or deployment. (4) Sales restrictions Neither a Bell operating company engaged in manufacturing nor a manufacturing affil- iate of such a company shall restrict sales to any local exchange carrier of telecommuni- cations equipment, including software integral to the operation of such equipment and re- lated upgrades. (5) Protection of proprietary information A Bell operating company and any entity it owns or otherwise controls shall protect the proprietary information submitted for pro- curement decisions from release not specifi- cally authorized by the owner of such informa- tion. (f) Administration and enforcement authority For the purposes of administering and enforc- ing the provisions of this section and the regula- tions prescribed thereunder, the Commission shall have the same authority, power, and func- tions with respect to any Bell operating com- pany or any affiliate thereof as the Commission has in administering and enforcing the provi- sions of this subchapter with respect to any common carrier subject to this chapter. (g) Additional rules and regulations The Commission may prescribe such addi- tional rules and regulations as the Commission determines are necessary to carry out the provi- sions of this section, and otherwise to prevent discrimination and cross-subsidization in a Bell operating company’s dealings with its affiliate and with third parties. (h) ‘‘Manufacturing’’ defined As used in this section, the term ‘‘manufac- turing’’ has the same meaning as such term has under the AT&T Consent Decree. (June 19, 1934, ch. 652, title II, § 273, as added Pub. L. 104–104, title I, § 151(a), Feb. 8, 1996, 110 Stat. 95.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsecs. (d)(7), (e)(1), and (f), was in the original ‘‘this Act’’, meaning act June 19, 1934, ch. 652, 48 Stat. 1064, known as the Communica- tions Act of 1934, which is classified principally to this chapter. For complete classification of this Act to the Code, see section 609 of this title and Tables. § 274. Electronic publishing by Bell operating companies (a) Limitations No Bell operating company or any affiliate may engage in the provision of electronic pub- lishing that is disseminated by means of such Bell operating company’s or any of its affiliates’ basic telephone service, except that nothing in this section shall prohibit a separated affiliate or electronic publishing joint venture operated in accordance with this section from engaging in the provision of electronic publishing. (b) Separated affiliate or electronic publishing joint venture requirements A separated affiliate or electronic publishing joint venture shall be operated independently from the Bell operating company. Such sepa- rated affiliate or joint venture and the Bell op- erating company with which it is affiliated shall— Page 121 TITLE 47—TELECOMMUNICATIONS § 274 (1) maintain separate books, records, and ac- counts and prepare separate financial state- ments; (2) not incur debt in a manner that would permit a creditor of the separated affiliate or joint venture upon default to have recourse to the assets of the Bell operating company; (3) carry out transactions (A) in a manner consistent with such independence, (B) pursu- ant to written contracts or tariffs that are filed with the Commission and made publicly available, and (C) in a manner that is auditable in accordance with generally accept- ed auditing standards; (4) value any assets that are transferred di- rectly or indirectly from the Bell operating company to a separated affiliate or joint ven- ture, and record any transactions by which such assets are transferred, in accordance with such regulations as may be prescribed by the Commission or a State commission to prevent improper cross subsidies; (5) between a separated affiliate and a Bell operating company— (A) have no officers, directors, and employ- ees in common after the effective date of this section; and (B) own no property in common; (6) not use for the marketing of any product or service of the separated affiliate or joint venture, the name, trademarks, or service marks of an existing Bell operating company except for names, trademarks, or service marks that are owned by the entity that owns or controls the Bell operating company; (7) not permit the Bell operating company— (A) to perform hiring or training of per- sonnel on behalf of a separated affiliate; (B) to perform the purchasing, installa- tion, or maintenance of equipment on behalf of a separated affiliate, except for telephone service that it provides under tariff or con- tract subject to the provisions of this sec- tion; or (C) to perform research and development on behalf of a separated affiliate; (8) each have performed annually a compli- ance review— (A) that is conducted by an independent entity for the purpose of determining com- pliance during the preceding calendar year with any provision of this section; and (B) the results of which are maintained by the separated affiliate or joint venture and the Bell operating company for a period of 5 years subject to review by any lawful au- thority; and (9) within 90 days of receiving a review de- scribed in paragraph (8), file a report of any exceptions and corrective action with the Commission and allow any person to inspect and copy such report subject to reasonable safeguards to protect any proprietary informa- tion contained in such report from being used for purposes other than to enforce or pursue remedies under this section. (c) Joint marketing (1) In general Except as provided in paragraph (2)— (A) a Bell operating company shall not carry out any promotion, marketing, sales, or advertising for or in conjunction with a separated affiliate; and (B) a Bell operating company shall not carry out any promotion, marketing, sales, or advertising for or in conjunction with an affiliate that is related to the provision of electronic publishing. (2) Permissible joint activities (A) Joint telemarketing A Bell operating company may provide in- bound telemarketing or referral services re- lated to the provision of electronic pub- lishing for a separated affiliate, electronic publishing joint venture, affiliate, or unaf- filiated electronic publisher: Provided, That if such services are provided to a separated affiliate, electronic publishing joint venture, or affiliate, such services shall be made available to all electronic publishers on re- quest, on nondiscriminatory terms. (B) Teaming arrangements A Bell operating company may engage in nondiscriminatory teaming or business ar- rangements to engage in electronic pub- lishing with any separated affiliate or with any other electronic publisher if (i) the Bell operating company only provides facilities, services, and basic telephone service infor- mation as authorized by this section, and (ii) the Bell operating company does not own such teaming or business arrangement. (C) Electronic publishing joint ventures A Bell operating company or affiliate may participate on a nonexclusive basis in elec- tronic publishing joint ventures with enti- ties that are not a Bell operating company, affiliate, or separated affiliate to provide electronic publishing services, if the Bell op- erating company or affiliate has not more than a 50 percent direct or indirect equity interest (or the equivalent thereof) or the right to more than 50 percent of the gross revenues under a revenue sharing or royalty agreement in any electronic publishing joint venture. Officers and employees of a Bell op- erating company or affiliate participating in an electronic publishing joint venture may not have more than 50 percent of the voting control over the electronic publishing joint venture. In the case of joint ventures with small, local electronic publishers, the Com- mission for good cause shown may authorize the Bell operating company or affiliate to have a larger equity interest, revenue share, or voting control but not to exceed 80 per- cent. A Bell operating company partici- pating in an electronic publishing joint ven- ture may provide promotion, marketing, sales, or advertising personnel and services to such joint venture. (d) Bell operating company requirement A Bell operating company under common own- ership or control with a separated affiliate or electronic publishing joint venture shall provide network access and interconnections for basic telephone service to electronic publishers at just Page 122 TITLE 47—TELECOMMUNICATIONS § 274 and reasonable rates that are tariffed (so long as rates for such services are subject to regulation) and that are not higher on a per-unit basis than those charged for such services to any other electronic publisher or any separated affiliate engaged in electronic publishing. (e) Private right of action (1) Damages Any person claiming that any act or prac- tice of any Bell operating company, affiliate, or separated affiliate constitutes a violation of this section may file a complaint with the Commission or bring suit as provided in sec- tion 207 of this title, and such Bell operating company, affiliate, or separated affiliate shall be liable as provided in section 206 of this title; except that damages may not be awarded for a violation that is discovered by a compli- ance review as required by subsection (b)(7) of this section and corrected within 90 days. (2) Cease and desist orders In addition to the provisions of paragraph (1), any person claiming that any act or prac- tice of any Bell operating company, affiliate, or separated affiliate constitutes a violation of this section may make application to the Commission for an order to cease and desist such violation or may make application in any district court of the United States of com- petent jurisdiction for an order enjoining such acts or practices or for an order compelling compliance with such requirement. (f) Separated affiliate reporting requirement Any separated affiliate under this section shall file with the Commission annual reports in a form substantially equivalent to the Form 10–K required by regulations of the Securities and Exchange Commission. (g) Effective dates (1) Transition Any electronic publishing service being of- fered to the public by a Bell operating com- pany or affiliate on February 8, 1996, shall have one year from February 8, 1996, to comply with the requirements of this section. (2) Sunset The provisions of this section shall not apply to conduct occurring after 4 years after Feb- ruary 8, 1996. (h) ‘‘Electronic publishing’’ defined (1) In general The term ‘‘electronic publishing’’ means the dissemination, provision, publication, or sale to an unaffiliated entity or person, of any one or more of the following: news (including sports); entertainment (other than interactive games); business, financial, legal, consumer, or credit materials; editorials, columns, or features; advertising; photos or images; archi- val or research material; legal notices or pub- lic records; scientific, educational, instruc- tional, technical, professional, trade, or other literary materials; or other like or similar in- formation. (2) Exceptions The term ‘‘electronic publishing’’ shall not include the following services: (A) Information access, as that term is de- fined by the AT&T Consent Decree. (B) The transmission of information as a common carrier. (C) The transmission of information as part of a gateway to an information service that does not involve the generation or al- teration of the content of information, in- cluding data transmission, address trans- lation, protocol conversion, billing manage- ment, introductory information content, and navigational systems that enable users to access electronic publishing services, which do not affect the presentation of such elec- tronic publishing services to users. (D) Voice storage and retrieval services, including voice messaging and electronic mail services. (E) Data processing or transaction proc- essing services that do not involve the gen- eration or alteration of the content of infor- mation. (F) Electronic billing or advertising of a Bell operating company’s regulated tele- communications services. (G) Language translation or data format conversion. (H) The provision of information necessary for the management, control, or operation of a telephone company telecommunications system. (I) The provision of directory assistance that provides names, addresses, and tele- phone numbers and does not include adver- tising. (J) Caller identification services. (K) Repair and provisioning databases and credit card and billing validation for tele- phone company operations. (L) 911–E and other emergency assistance databases. (M) Any other network service of a type that is like or similar to these network serv- ices and that does not involve the generation or alteration of the content of information. (N) Any upgrades to these network serv- ices that do not involve the generation or al- teration of the content of information. (O) Video programming or full motion video entertainment on demand. (i) Additional definitions As used in this section— (1) The term ‘‘affiliate’’ means any entity that, directly or indirectly, owns or controls, is owned or controlled by, or is under common ownership or control with, a Bell operating company. Such term shall not include a sepa- rated affiliate. (2) The term ‘‘basic telephone service’’ means any wireline telephone exchange serv- ice, or wireline telephone exchange service fa- cility, provided by a Bell operating company in a telephone exchange area, except that such term does not include— (A) a competitive wireline telephone ex- change service provided in a telephone ex- change area where another entity provides a wireline telephone exchange service that was provided on January 1, 1984, or (B) a commercial mobile service. Page 123 TITLE 47—TELECOMMUNICATIONS § 275 (3) The term ‘‘basic telephone service infor- mation’’ means network and customer infor- mation of a Bell operating company and other information acquired by a Bell operating com- pany as a result of its engaging in the provi- sion of basic telephone service. (4) The term ‘‘control’’ has the meaning that it has in 17 C.F.R. 240.12b–2, the regulations promulgated by the Securities and Exchange Commission pursuant to the Securities Ex- change Act of 1934 (15 U.S.C. 78a et seq.) or any successor provision to such section. (5) The term ‘‘electronic publishing joint venture’’ means a joint venture owned by a Bell operating company or affiliate that en- gages in the provision of electronic publishing which is disseminated by means of such Bell operating company’s or any of its affiliates’ basic telephone service. (6) The term ‘‘entity’’ means any organiza- tion, and includes corporations, partnerships, sole proprietorships, associations, and joint ventures. (7) The term ‘‘inbound telemarketing’’ means the marketing of property, goods, or services by telephone to a customer or poten- tial customer who initiated the call. (8) The term ‘‘own’’ with respect to an entity means to have a direct or indirect equity in- terest (or the equivalent thereof) of more than 10 percent of an entity, or the right to more than 10 percent of the gross revenues of an en- tity under a revenue sharing or royalty agree- ment. (9) The term ‘‘separated affiliate’’ means a corporation under common ownership or con- trol with a Bell operating company that does not own or control a Bell operating company and is not owned or controlled by a Bell oper- ating company and that engages in the provi- sion of electronic publishing which is dissemi- nated by means of such Bell operating com- pany’s or any of its affiliates’ basic telephone service. (10) The term ‘‘Bell operating company’’ has the meaning provided in section 153 of this title, except that such term includes any enti- ty or corporation that is owned or controlled by such a company (as so defined) but does not include an electronic publishing joint venture owned by such an entity or corporation. (June 19, 1934, ch. 652, title II, § 274, as added Pub. L. 104–104, title I, § 151(a), Feb. 8, 1996, 110 Stat. 100.) Editorial Notes REFERENCES IN TEXT The Securities Exchange Act of 1934, referred to in subsec. (i)(4), is act June 6, 1934, ch. 404, 48 Stat. 881, which is classified principally to chapter 2B (§ 78a et seq.) of Title 15, Commerce and Trade. For complete classification of this Act to the Code, see section 78a of Title 15 and Tables. § 275. Alarm monitoring services (a) Delayed entry into alarm monitoring (1) Prohibition No Bell operating company or affiliate thereof shall engage in the provision of alarm monitoring services before the date which is 5 years after February 8, 1996. (2) Existing activities Paragraph (1) does not prohibit or limit the provision, directly or through an affiliate, of alarm monitoring services by a Bell operating company that was engaged in providing alarm monitoring services as of November 30, 1995, directly or through an affiliate. Such Bell op- erating company or affiliate may not acquire any equity interest in, or obtain financial con- trol of, any unaffiliated alarm monitoring service entity after November 30, 1995, and until 5 years after February 8, 1996, except that this sentence shall not prohibit an ex- change of customers for the customers of an unaffiliated alarm monitoring service entity. (b) Nondiscrimination An incumbent local exchange carrier (as de- fined in section 251(h) of this title) engaged in the provision of alarm monitoring services shall— (1) provide nonaffiliated entities, upon rea- sonable request, with the network services it provides to its own alarm monitoring oper- ations, on nondiscriminatory terms and condi- tions; and (2) not subsidize its alarm monitoring serv- ices either directly or indirectly from tele- phone exchange service operations. (c) Expedited consideration of complaints The Commission shall establish procedures for the receipt and review of complaints concerning violations of subsection (b) or the regulations thereunder that result in material financial harm to a provider of alarm monitoring service. Such procedures shall ensure that the Commis- sion will make a final determination with re- spect to any such complaint within 120 days after receipt of the complaint. If the complaint contains an appropriate showing that the al- leged violation occurred, as determined by the Commission in accordance with such regula- tions, the Commission shall, within 60 days after receipt of the complaint, order the incumbent local exchange carrier (as defined in section 251(h) of this title) and its affiliates to cease en- gaging in such violation pending such final de- termination. (d) Use of data A local exchange carrier may not record or use in any fashion the occurrence or contents of calls received by providers of alarm monitoring services for the purposes of marketing such services on behalf of such local exchange carrier, or any other entity. Any regulations necessary to enforce this subsection shall be issued ini- tially within 6 months after February 8, 1996. (e) ‘‘Alarm monitoring service’’ defined The term ‘‘alarm monitoring service’’ means a service that uses a device located at a residence, place of business, or other fixed premises— (1) to receive signals from other devices lo- cated at or about such premises regarding a possible threat at such premises to life, safety, or property, from burglary, fire, vandalism, bodily injury, or other emergency, and (2) to transmit a signal regarding such threat by means of transmission facilities of a