FCC Issues Declaratory Ruling Clarifying That CPNI Rules Apply to Personal Information Stored on Wireless Devices

by Davis Wright Tremaine LLP

On June 27, 2013, the Federal Communications Commission (FCC) issued a declaratory ruling in which it clarified that the agency’s Customer Proprietary Network Information (CPNI) regulations apply to customer-specific information stored on wireless devices, not just that stored on the carrier’s network. Under the declaratory ruling, when information that meets the statutory definition of CPNI is stored on the customer’s mobile device, and the carrier has both caused such information to be stored on the device and has access to or control over that information, the carrier is responsible for safeguarding such information. Thus, for example, customer-specific data stored on a mobile device, such as information regarding phone numbers called, the location from which the calls were made, and the time, duration of calls, must be protected. In their accompanying statements, Acting Chairwoman Clyburn and Commissioner Rosenworcel were careful to explain that the ruling is limited in scope and does not apply to device manufacturers or third-party app developers. Commissioner Rosenworcel urged the Commission to take note of certain trends that threaten consumer privacy and to take a more proactive role in educating consumers and simplifying privacy policies in conjunction with the Federal Trade Commission.

The declaratory ruling stems from security vulnerabilities discovered in the network diagnostic software deployed by Carrier IQ and used by many wireless carriers. The vulnerabilities permitted others to access sensitive information about end users, including user locations, text messages and keystrokes. The exposure of those vulnerabilities led to Congressional hearings, a Federal Trade Commission settlement, and an FCC inquiry into the privacy and data security practices of mobile wireless service providers, focusing in particular on how such practices affect customer-specific information stored on mobile devices and whether the CPNI rules govern the security and access of such information.

CPNI is customer-specific personal information related to an individual’s use of a telecommunications service. Specifically, Section 222 of the Communications Act defines CPNI as “(A) information that relates to the quantity, technical configuration, type, destination, location, and amount of use of a telecommunications service subscribed to by any customer of a telecommunications carrier, and that is made available to the carrier by the customer solely by virtue of the carrier-customer relationship; and (B) information contained in the bills ....” This includes individual call detail, such as phone numbers called (or numbers from which calls are received), the timing and duration of phone calls, and the locations from which calls are placed or received. (That information could be subject to additional protections if Congress amends the Electronic Communications Privacy Act (ECPA) to require warrants before a carrier discloses caller location information to the government.)

The FCC’s CPNI rules impose limitations on telecommunications carriers’ use and disclosure of a customer’s CPNI. Among other things, carriers must safeguard CPNI and are restricted in their use or disclosure of such information to third parties, and must notify customers of security breaches involving CPNI. For further information on CPNI, please see our previous advisories, including our most recent DWT advisory.

The declaratory ruling does not introduce new rules, but instead only clarifies that current CPNI requirements extend to information fitting the statutory definition of CPNI when stored on a wireless device at a carrier’s direction and to which a carrier has access. Thus, CPNI collected by, or at the direction of, wireless carriers, including information collected via preinstalled apps on a wireless device, whether stored by the carrier on its network or merely “available” to the carrier but residing on the consumer’s device, is now subject to existing CPNI rules. The FCC was clear that any failure to protect CPNI on wireless devices may result in enforcement actions, including forfeitures.

There are important limitations to the ruling. First, the duty to protect and prevent unauthorized disclosure of CPNI on a wireless device does not extend to device manufacturers or third-party developers of mobile operating systems or applications. Second, the ruling applies only to data fitting the definition of CPNI and does not impact other types of personal data collected or stored on mobile devices, such as photos, contacts, and Internet browsing history. The FCC confirmed that carriers are allowed to collect various types of information, including data that assists with network diagnostics and customer support, so long as the use and protection of applicable data complies with the CPNI rules.

In practice, carriers that offer mobile services should promptly update their CPNI procedures and refresh their training programs, but need not make any new filing with the FCC until the next CPNI certification is due on March 3, 2014.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Davis Wright Tremaine LLP | Attorney Advertising

Written by:

Davis Wright Tremaine LLP

Davis Wright Tremaine LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.