BEFORE THE CORPORATION COMMISSION OF T~~R-G~.'r`, C STAFF'S RESPONSE TO APPLICATION OF YOURTEL AMERICA, INC. AND BRIEF IN SUPPORT

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1 1 Selma* F :.f MA R 0 > ~ 'U0 BEFORE THE CORPORATION COMMISSION OF T~~R-G~.'r`, C APPLICATION OF YOURTEL AMERICA, INC. ~ Or OKLAHOtII a F/K/A THE PAGER COMPANY D/B/A THE ) CAUSE NO. PUD PAGER & PHONE COMPANY FOR ISSUANCE ) OF A SUBPOENA REGARDING CUSTOMER ) INFORMATION ) STAFF'S RESPONSE TO APPLICATION OF YOURTEL AMERICA, INC. AND BRIEF IN SUPPORT Joyce E. Davidson, Director of the Public Utility Division of the Oklahoma Corporatio n Commission, ("Staff') responds to the Application of YourTel America, Inc. f/k/a the Page r Company d/b/a the Pager & Phone Company ("YourTel") The matter before the Commission relates to a disagreement between Staff and YourTe l about the technical procedure of performing Lifeline audits. Staff periodically audits companie s receiving funding from the Oklahoma Lifeline Fund to ensure that Lifeline funds are being use d for the purpose intended. OAC 159 : The Lifeline audit requires the production of customer-specific information so that Staff can verify the eligibility of Lifeline customers. YourTel believes that the Electronic Communications Privacy Act ("ECPA"), 18 U.S.C et seq., specifically, 2703(c), prohibits YourTel from providing Staff with customer-specific audit information unless the Commission issues a subpoena requiring production of such information. This Commission should reject YourTel's interpretation of the ECPA. A response to the specific allegations contained within YourTel's Application is not necessary because the dispute rests on YourTel's legal interpretation of 2703(c). The only issue before the Commission is whether 2703(c) requires this Commission to issue a subpoena for customer-specific information sought by Staff, the Lifeline Fund Administrator, in order to perform a Lifeline audit. Staff asserts that 2703(c) does not require this Commission to issue a

2 Cau se No. PUD Staff's R espon se Page 2 of 7 subpoena to obtain customer-specific information necessary to perform an audit of the Lifelin e funds received by YourTe l. The following analysis will demonstrate : 1) 2703(c) restricts access of a governmental entity to the customer-specific record s held by a provider of electronic communications or remote computing services, but does not restrict access of a governmental entity to the customer- speci fi c records held by a provider of wire communications. 2) The ECPA definition of electronic communications and remote computing services excludes telephone service. The ECPA definition of wire communications includes telephone service. 3) The Lifeline Fund subsidizes provision of wire communications a/k/a telephone service only and does not subsidize provision of electronic communications or remote computing services. 4) Wherefore, 2703(c) does not restrict access of a governmental entity to th e customer-specific records of a company receiving Lifeline funds, i.e., a provider of wire communications a/k/a telephone service. In its Application, YourTel cited 18 U.S.C. 2703(c) as the statute that prohibits it from producing the customer-specific records necessary to conduct a Lifeline audit. Therefore, thi s Commission must look at the specific language of 2703(c). (c) Records Concerning Electronic Communication Service or Remote Computing Service. - ( 1 ) A governmental entity may require a provider of electronic communication service or remote computing service to disclose a record or other information pertaining to a subscriber to or customer of such service

3 Cause No. PUD Staff's Respons e Page 3 of 7 (not including the contents of communications) only when the governmental entity - (A) obtains a warrant issued using the procedures described in the Federal Rules of Criminal Procedure by a court with jurisdiction over the offense under investigation or equivalent State warrant ; (B) obtains a court order for such disclosure under subsection (d) of this section ; (C) has the consent of the subscriber or customer to such disclosure ; or (D) submits a formal written request relevant to a law enforcement investigation concerning telemarketing fraud for the name, address, and place of business of a subscriber or customer of such provider, which subscriber or customer is engaged in telemarketing (as such term is defined in section 2325 of this title) ; or (E) seeks information under paragraph (2). (2) A provider of electronic communication service or remote computing service shall disclose to a governmental entity the- (A) name; (B) address ; (C) local and long distance telephone connection records, or records of session times and durations ; (D) length of service (including start date) and types of service utilized ; (E) telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address ; and (F) means and source of payment for such service (including any credit card or bank account number), of a subscriber to or customer of such service when the governmental entity uses an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury or trial subpoena or any means available under paragraph (1). (3) A governmental entity receiving records or information under this subsection is not required to provide notice to a subscriber or customer.

4 Cau se No. PUD Staff's Respon se Pa ge 4 of 7 18 U.S.C. 2703(c), emphasis added. Sub-section 1 of 2703(c) limits a governmental entity's access to a "record or othe r information pertaining to a [customer]". However, the limitations of 2703(c) only apply to providers of electronic communication services or remote computing services. Sub-section 2 details the customer-specific information that will be produced in response to a subpoena issued by a governmental entity. Again, the language of sub-section 2 only applies to providers of electronic communication services or remote computing services defines the some terms contained within the ECPA, 18 U.S.C. 2701, et seq. and references 18 U.S.C for other definitions. "wire communication" means any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception (including the use of such connection in a switching station) furnished or operated by any person engaged in providing or operating such facilities for the transmission of interstate or foreign communications or communications affecting interstate or foreign commerce ; 18 U.S.C. 2711(1) and 18 U.S.C. 2510(1). "electronic communication" means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptica l system that affects interstate or foreign commerce, but does not in clude- (A) any wire or oral communication ; (B) any communication made through a tone-only paging device ; (C) any communication from a tracking device (as defined in section 3117 of this title); or (D) electronic funds transfer information stored by a financial institution in a communications system used for the electronic storage and transfer of funds ; 18 U.S.C. 2711(1) and 18 U.S.C. 2510(12), emphasis added.

5 Cau se No. PUD Staff's Respon se Page 5 of 7... "remote computing se rvice" means the provision to the public of computer storage or process ing services by means of an electronic communications system ; 18 U.S.C (2). A wire communication is a transfer of sound over wires. Simply put, a wire communication is an ordinary telephone call. An electronic communication is the transfer of writing, images, sounds, etc... over a wire or by other means. An electronic communication might be an , a streaming video, a text message, or any of the many communication technologies available in this modern age. However, an electronic communication is not an ordinary telephone call. 18 U.S.C. 2510(12)(A). Ordinary telephone calls were specifically and intentionally exempted from the definition of electronic communication. A remote computing service is a service to store or process an electronic communication. Since the definition of electronic communication excludes telephone service, the definition of remote computing service also excludes telephone service. This distinction between wire communications and electronic communications or remote computing services is important because Staff is only seeking customer-specific records necessary to perform Lifeline audits. The Oklahoma Lifeline Fund only supports the provision of basic local telephone service, i.e., wire communications. Companies providing Lifeline services are therefore providers of wire communications and are not subject to the provisions of 2703(c). The Oklahoma Lifeline Fund is designed to advance the goals of universal service and ensure that low-income residential customers within the State of Oklahoma, who meet the criteria of 47 C.F.R (k)(1), 17 O.S. (Supp. 1997) , and 47 C.F.R through , are provided financial assistance in maintaining basic local exchange telecommunications service. OAC 165 :59-9-1(b), emphasis added.

6 Cause No. PUD Staff's Response Page 6 of 7 The purpose of the Oklahoma Lifeline Fund is to give low-income residential customers access to basic local telephone service. With basic telephone service, low-income residential customers may make ordinary telephone calls, i.e., wire communications. The Oklahoma Lifeline Fund does not subsidize internet access or the provision of any other advanced electronic communication or remote computing service. Wherefore, 2703(c) does not restrict access of a governmental entity to the customerspecific records necessary to conduct a Lifeline audit from a provider of Lifeline services, i.e., a provider of wire communications a/k/a telephone service. YourTel argues that the Lifeline Fund Administrator must file a formal proceeding and issue a subpoena simply to determine the identity and eligibility of Lifeline customers receiving the benefit of the Oklahoma Lifeline Fund. The requirement of formal proceedings would place an unnecessary burden and additional costs on both Staff, the Lifeline Fund Administrator, and on companies providing Lifeline service, which would be required to hire attorneys to represent them during the legal proceeding / Lifeline audit. The preceding analysis has demonstrated that 2703(c) contains no restriction on this Commission's authority to require, without a subpoena, production of records containing customer-specific information necessary to conduct a Lifeline audit from YourTel. The remaining question, therefore, is whether there are other federal or state legal authorities that permit Staff to require production of customer-specific information in connection with a Lifeline audit, without a subpoena. The federal Lifeline Assistance Program is authorized by 47 U.S.C. 254(j). The Oklahoma Lifeline Fund is authorized by 17 O.S The Federal and State Lifeline programs work in tandem to subsidize the provision of basic local telephone service to low income consumers. See 47 CFR et seq., specifically, (a)(3). Both the Federal and State Lifeline programs require Lifeline providers to keep records that will permit Lifeline audits by the respective Federal and State Lifeline program Administrators. 47 CFR and OAC 165 : Neither rule authorizing Lifeline audits by the Lifeline program

7 Cau se No. PUD Staff's R es p o n s e Pa g e 7 of 7 Administrator requires the Administrator / Auditor to issue a subpoena for the records necessar y to conduct the Lifeline audit. Id. In conclusion, 2703(c) does not prohibit the Lifeline Administrator, i.e., Staff, fro m requiring the production, without a subpoena, of customer-specific records necessary to conduct a Lifeline audit. Other Federal and State authorities authorize the Staff to require the production, without a subpoena, of customer-specific records necessary to conduct a Lifeline audit. Accordingly, the Application of YourTel, seeking to require Staff to issue a subpoena for such records, should be denied. ennett Ab, OBA ssistant General Counse l Oklahoma Corporation Commission Post Office Box Oklahoma City, Oklahoma (405)