# DA-93-1022: Petition for a Declaratory Ruling That Gte Airfone, Gte Railfone. And Gte Mobilnet Are Not Subject to the Telephone Operator Consumer Services Improvement Act of 1990 (08/27/93): Petition for a Declaratory Ruling That Gte Airfone, Gte Railfone. And Gte Mobilnet Are Not Subject to the Telephone Operator Consumer Services Improvement Act of 1990

> Federal · Rulings · In force

URL: https://www.frixlaw.com/law-library/statutes/FCC_DA_93_1022

## Section

- **Citation:** DA-93-1022: Petition for a Declaratory Ruling That Gte Airfone, Gte Railfone. And Gte Mobilnet Are Not Subject to the Telephone Operator Consumer Services Improvement Act of 1990 (08/27/93)
- **Heading:** Petition for a Declaratory Ruling That Gte Airfone, Gte Railfone. And Gte Mobilnet Are Not Subject to the Telephone Operator Consumer Services Improvement Act of 1990
- **Jurisdiction:** Federal
- **Kind:** Rulings
- **Status:** In force
- **Text as of:** August 14, 2026
- **Source:** Compiled text
- **Location:** FCC Declaratory Rulings / Petition for a Declaratory Ruling That Gte Airfone, Gte Railfone. And Gte Mobilnet Are Not Subject to the Telephone Operator Consumer Services Improvement Act of 1990

## Text

8 FCC Red No. 18
Federal Communications Commission Record
DA 93-1022
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
PETITION FOR
File No. MSD-92-14
A DECLARATORY RULING
THAT GTE AIRFONE, GTE
RAILFONE, AND GTE MOBILNET
ARE NOT SUBJECT TO THE
TELEPHONE OPERATOR CONSUMER
SERVICES IMPROVEMENT ACT OF
1990
DECLARATORY RULING
Adopted: August 18, 1993;
Released: August 27, 1993
Comment Date: October 12, 1993
Reply Date: October 27, 1993
By the Acting Chief. Common Carrier Bureau:
I. INTRODUCTION
1. The Common Carrier Bureau has before it a Petition
for Declaratory Ruling filed by GTE Service Corporation
(GTE) on behalf of GTE Airfone Incorporated (Airfone),
GTE Railfone Incorporated (Railfone), and GTE Mobilnet
Incorporated (Mobilnet) 1 (collectively GTE subsidiaries),
asking that none of the GTE subsidiaries be considered
subject to the requirements of the Telephone Operator
Consumer Services Improvement Act of 1990 (TOCSIA). 2
On March 17, 1992, we issued a Public Notice re~uesting
interested parties to file comments in response.
Seven
comments and five reply comments were received.4
1 All references to Mobilnet herein refer only to GTE's subsid-
iary which provides cellular credit card activated telephones in
rental cars. GTE is also a cellular licensee in a number of
cellular markets and operates under the name GTE Mobilnet in
these markets. Our ruling does not pertain to GTE's cellular
licenses per se.
2 47 u.s.c. § 226 (1990).
3 See Public Notice, Mimeo No. 22280, Mar. 17, 1992. We issued
a subsequent Public Notice amending the comment filing dates.
See Public Notice, Mimeo No. 22316, Mar. 19, 1992.
4
See Appendix. To the extent commenting parties are seeking
a ruling broader than that sought by GTE, their pleadings are
also being treated as petitions for declaratory ruling and are
addressed by this ruling.
5 S. Rep. No. 439, !Olst Cong., 2d Sess. at l ( 1990): see also H.R.
Rep. No. 213, lOlst Cong., 1st Sess. at 2
ment filing dates.
See Public Notice, Mimeo No. 22316, Mar. 19, 1992.
4
See Appendix. To the extent commenting parties are seeking
a ruling broader than that sought by GTE, their pleadings are
also being treated as petitions for declaratory ruling and are
addressed by this ruling.
5 S. Rep. No. 439, !Olst Cong., 2d Sess. at l ( 1990): see also H.R.
Rep. No. 213, lOlst Cong., 1st Sess. at 2. (1989)("the purpose of
[the Act! is to protect telephone consumers against unfair pro-
cess and practices of some operator service providers (OSPs), yet
allow the legitimate companies in the industry the opportunity
to compete in the market.") "Operator services" include collect
or person-to-person calls, calls billed to a third number. and
calls billed to a calling card or credit card. These services may
be provided by an automated device as well as by a live oper-
ator. S. Rep. No. 439, lOlst Cong .. 2d Sess. at n.l.
6171
II.BACKGROUND
2. In October 1990, Congress enacted TOCSIA "to pro-
tect consumers who make interstate operator services calls
from pay telephones, hotels, and other public locations
against unreasonably high rates and anticompetitive prac-
tices."5 Congress noted that in recent years a number of
operator services companies have emerged. These operator
services providers (OSPs) compete with local exchange and
long distance carriers by providing telephones to the gen-
eral public.6 When a caller dials an operator assisted se-
quence from a telephone served by one of these OSPs the
call is routed automatically to the OSP. 7 The OSP provides
the desired operator services to facilitate completion of the
call.
3. Congress was addressing two main concerns in enact-
ing TOCSIA--ensuring that consumers are aware of the
identity of the pre-subscribed operator service provider,
and guaranteeing that callers are able to employ the carrier
of their choice in placing operator-assisted calls
ted automatically to the OSP. 7 The OSP provides
the desired operator services to facilitate completion of the
call.
3. Congress was addressing two main concerns in enact-
ing TOCSIA--ensuring that consumers are aware of the
identity of the pre-subscribed operator service provider,
and guaranteeing that callers are able to employ the carrier
of their choice in placing operator-assisted calls. Congress
directed the Commission to prescribe rules that assure that
the objectives of TOCSIA are met. 8 In 1991, the Commis-
sion adopted the rules and regulations pertaining to oper-
ator service providers mandated by Congress.9
4. A telecommunications service is covered by the Com-
mission's operator service rules if the service includes any
automatic or live operator assistance to the caller to ar-
range for billing or completion of an interstate call
through a method other than ( 1) automatic completion
with billing to the telephone from which the call origi-
nated. or (2) completion through an access code used by
the consumer, with billing to an account ~reviously estab-
lished with the carrier by the consumer. 1 There are two
6 See id. at 2.
7 All credit card calls are considered "operator assisted" wheth-
er the customer utilizes a live operator or not.
8 On June 14, 1990. the Commission issued its initial Notice of
Proposed Rulemaking. See Notice of Proposed Rulemaking,
Policies and Rules Concerning Operator Service Providers, CC
Docket No. 90-313, 5 FCC Red 4630 ( 1990) (NPRM). On De-
cember 21, 1990, the Commission issued a Further Notice of
Proposed Rulemaking in the same proceeding. See Further No-
tice of Proposed Rulemaking, 6 FCC Red 120 (1990) (FNPRM).
We note that while GTE filed comments generally in support of
the above proceeding on September 7, 1990, GTE did not men-
tion any of its subsidiaries which are at issue in the current
~roceeding.
See
Policies and Rules Concerning Operator Service
Providers, Report and Order, CC Docket No
aking in the same proceeding. See Further No-
tice of Proposed Rulemaking, 6 FCC Red 120 (1990) (FNPRM).
We note that while GTE filed comments generally in support of
the above proceeding on September 7, 1990, GTE did not men-
tion any of its subsidiaries which are at issue in the current
~roceeding.
See
Policies and Rules Concerning Operator Service
Providers, Report and Order, CC Docket No. 90-313, 6 FCC Red
2744 (1991) (Report and Order}, recon., 7 FCC Red 3882 (1992).
See also Policies and Rules Concerning Operator Service Access
and Pay Telephone Compensation, CC Docket No. 91-35, Report
and Order and Further Notice of Proposed Rule Making, 6 FCC
Red 4736 (1991). Second Report and Order, 7 FCC Red 3251
F992), recon., 7 FCC Red 4355 (1992).
0 See 47 C.F.R. § 64.708(g).

DA 93·1022
Federal Communications Commission Record
8 FCC Red No. 18
categories of rules adopted pursuant to TOCSIA--rules
which are applicable to aggregators11 and rules which are
applicable to operator service providers (OSPs). 12
5. Pursuant to the Commission's Rules adopted under
TOCSIA, an aggregator is required to post certain informa-
tion on or near the telephone.13 The aggregator must also
ensure that its telephones do not block the access codes to
other than the presubscribed OSP so consumers have the
ability to utilize other providers of operator services. Fi-
nally, the aggregator must ensure that no charge by the
aggregator to the consumer for using an access code to
another OSP is greater than for calls placed using the
presubscribed OSP.14 The Commission stated that any en-
tity which exercises control over the telephone, whether
through ownership of the equipment or control of access
to the equipment, will be responsible as an aggregator
11 The term "aggregator" is defined in paragraph (b) of Section
64.708 of the Commission's Rules as follows: "(Ajny person that,
in the ordinary course of its operations, makes telephones avail-
able to the public or to transient users of its premises, for
inter
e telephone, whether
through ownership of the equipment or control of access
to the equipment, will be responsible as an aggregator
11 The term "aggregator" is defined in paragraph (b) of Section
64.708 of the Commission's Rules as follows: "(Ajny person that,
in the ordinary course of its operations, makes telephones avail-
able to the public or to transient users of its premises, for
interstate telephone calls using a provider of operator services."
47 C.F.R. § 64.708(b); see also 47 U.S.C. § 226(a)(2).
12 For the purposes of these requirements, an OSP is a provider
of:
any interstate telecommunications service initiated from
an aggregator location that includes, as a component, any
automatic or live assistance to a consumer to arrange for
billing or completion, or both, of an interstate telephone
call through a method other than--
(A) automatic completion with billing to the telephone
from which the call originated; or
(B) completion through an access code used by the con-
sumer, with billing to an account previously established
with the carrier by the consumer.
47 C.F.R.
§§ 64.708(g). 64.708(i); 47 U.S.C. §§ 226(a)(7),
226(a)(9). The Commission has noted that this definition of
OSP may not be appropriate for purposes other than identifying
which carriers are subject to the OSP requirements of TOCSIA.
For instance, the Commission has stated that Congress may not
have intended the access code exclusion to apply to the defini-
tion of an OSP for compensation purposes. See Policies and
Rules Concerning Operator Service Access and Pay Telephone
Compensation, Second Report and Order, supra, at 3261.
13 The information the aggregator must post is as follows:
t to the OSP requirements of TOCSIA.
For instance, the Commission has stated that Congress may not
have intended the access code exclusion to apply to the defini-
tion of an OSP for compensation purposes. See Policies and
Rules Concerning Operator Service Access and Pay Telephone
Compensation, Second Report and Order, supra, at 3261.
13 The information the aggregator must post is as follows:
(i) the name, address, and toll-free telephone number of
the (presubscribed] provider of operator services;
(ii) a written disclosure that the rates for all operator-
assisted calls are available upon request, and that con-
sumers have a right to obtain access to the interstate
common carrier of their choice and may contact their
preferred interstate common carriers for information on
accessing that carrier's service using that telephone; and
(iii) the name and address of the Enforcement Division
of the Common Carrier Bureau of the Commission, to
which the consumer may direct complaints regarding
operator services.
47 C.F.R. § 64.703(b); 47 U.S.C. § 226 (c)(l)(A).
14 See 47 C.F.R. §§ 64.703(b), 64.704(a), (c) and 64.705(b); see
also, 47 U.S.C. §§ 226(c)(l)(A), (B), and (C).
15 See Report and Order, 6 FCC Red at 2751.
6172
under the Act and our Rules. 15 Accordingly, there will be
instances where the premises owner and the equipment
owner will share responsibility as aggregators.
6. An OSP, on the other hand, is required to double
brand calls, 16 to permit the consumer to terminate the call
at no charge before the call is connected and to disclose
certain information to the customer at no charge. 17 The
OSP must also ensure that the aggregator is in compliance
with the aggregator provisions and withhold payment if the
aggregator is blocking access codes. The OSP may not bill
for unanswered calls, engage in call splashing, 18 or bill for
a call that does not reflect the location of the origination of
the call
connected and to disclose
certain information to the customer at no charge. 17 The
OSP must also ensure that the aggregator is in compliance
with the aggregator provisions and withhold payment if the
aggregator is blocking access codes. The OSP may not bill
for unanswered calls, engage in call splashing, 18 or bill for
a call that does not reflect the location of the origination of
the call. 19 It is possible for an entity to be both an
aggregator and an OSP and therefore subject to the require-
ments for both.
7. On November 13, 1992, the Commission submitted its
Final Report to Congress regarding TOCSIA.20 The Com-
mission stated in this report that:
16 Call branding "is the process by which an OSP audibly and
distinctly identifies itself to every person who uses its operator
services." NPRM, 5 FCC Red at 4632. The OSP is required to
brand the call at the beginning of each call and again before the
customer incurs any charge for the call. See 47 C.F.R. §§
64.703(a), 64.703(c); 47 u.s.c. § 22o(b)(l)(A).
17 The information which the OSP must furnish to the cus-
tomer upon request is:
(i) a quote of its rates or charges for the call;
(ii) the methods by which such rates or charges will be
collected; and
(iii) the methods by which complaints concerning such
rates, charges, or collection practices will be resolved.
47 u.s.c. § 226(b)(l)(C).
18 "Call splashing" refers to the transfer of a telephone call
from one provider of operator services to another where the
second provider is unable to determine the location of the
originating call and is prevented from billing the call on the
basis of such location. See 47 C.F.R. § 64.708(c); 47 U.S.C. §
226(a)(3). Example:
A consumer in a hotel in Washington, D.C., wishes to
place a call using a calling card from his chosen IXC to
Baltimore, Maryland. The presubscribed OSP for that
hotel is based in Chicago. The OSP is unable to accept
the calling card, so the caller asks the OSP to transfer the
call to an operator of his or her chosen lXC
h location. See 47 C.F.R. § 64.708(c); 47 U.S.C. §
226(a)(3). Example:
A consumer in a hotel in Washington, D.C., wishes to
place a call using a calling card from his chosen IXC to
Baltimore, Maryland. The presubscribed OSP for that
hotel is based in Chicago. The OSP is unable to accept
the calling card, so the caller asks the OSP to transfer the
call to an operator of his or her chosen lXC. The oper-
ator of the consumer's carrier of choice is unaware that
the call is originating in Washington and believes that the
call is originating in Chicago. The customer is, therefore,
billed for a call from Chicago to Baltimore, rather than
from Washington to Baltimore.
Call splashing is allowed when the consumer requests to be
transferred to another OSP, the consumer is notified in advance
· that the rates for the call may not reflect the rates from the
actual originating location of the call. and the consumer there-
after consents to be transferred. See 47 C.F.R. § 64.70S(a)(3); 47
U.S.C. § 226(b)(l)(H).
19
See
47
C.F.R.
§§
64.703(a)( I )-(3).
64.704(b),
and
64.705(a)(l)-(5); see also 47 U.S.C. §§ 226(b)( l)(A)-(1).
20 Pursuant to the requirements of TOCSlA, the Commission
was to file three reports with Congress. On May 14, 1991, the
Commission submitted its First Report; on Novembere 14, 1991,
the Commission submitted its Second Report.

8 FCC Red No. 18
Federal Communications Commission Record
DA 93-1022
(1) The statutory objectives of TOCSIA are being
achieved. Consumers are being protected from unfair
and deceptive practices relating to their use of oper-
ator services to place interstate telephone calls. Fur-
ther, consumers have an opportunity to
make
informed choices in making such calls.
bmitted its Second Report.

8 FCC Red No. 18
Federal Communications Commission Record
DA 93-1022
(1) The statutory objectives of TOCSIA are being
achieved. Consumers are being protected from unfair
and deceptive practices relating to their use of oper-
ator services to place interstate telephone calls. Fur-
ther, consumers have an opportunity to
make
informed choices in making such calls.
(2) Market forces are securing just and reasonable
rates.
Final Report at 1. The Commission detailed the fac-
tual findings in its report which led to the conclu-
sions stated above. Additionally, the Commission
stated that it believes it has a continuing duty to
ensure that all of the problems that prompted Con-
gress to adopt TOCSIA have been solved.
III. GTE's PETITION
8. GTE asks for a declaratory ruling that the types of
communications services provided by the GTE subsidiaries
are not subject to the requirements of TOCSIA. GTE ~x­
presses concern that application of TOCSIA to Airfone,
Railfone, and Mobilnet may adversely affect the continued
development of air-to-ground (ATG) and cellular credit
card services, to the detriment of the public.
9. The GTE subsidiaries offer three different types of
mobile telecommunications services. Airfone is a Commis-
sion licensee which provides telephone service to passen-
gers of commercial and private aircraft. 21 Airfone owns and
operates the radio and passenger handset equipment in-
stalled on airplanes. Airfone also owns and operates nearly
100 base stations that are used to establish a communica-
tions link between aircraft equipment and the ground.
From
the ground station, calls are routed through
Airfone's private network or through the public switched
network. Customers are charged an initial activation fee
and a time sensitive usage fee. Customers are not charged
separately for the land-based portion of long-distance calls.
10. Railfone provides telephone service to passengers of
certain rail lines
rcraft equipment and the ground.
From
the ground station, calls are routed through
Airfone's private network or through the public switched
network. Customers are charged an initial activation fee
and a time sensitive usage fee. Customers are not charged
separately for the land-based portion of long-distance calls.
10. Railfone provides telephone service to passengers of
certain rail lines. Railfone is a cellular and long distance
reseller, not a Commission licensee, and provides credit
card cellular pay telephone service on trains. The charge
for the call is, like that of Airfone, time-sensitive and billed
on a per-minute basis only. Long distance service is not
charged separately to the customer. Mobilnet is also a
provider of credit card cellular telephone service providing
service through cellular resale. Through agreements with
rental car providers, Mobilnet installs its credit card ac-
tivated cellular telephones in rental cars. If the caller
makes a long distance call using an interexchange carrier
(IXC) of his or her own choosing, the charges for the long
distance portion are billed separately and directly by the
IXC. Both Railfone and Mobilnet are resellers of cellular
service and the underlying facilities based cellular carrier is
not necessarily controlled by GTE. Railfone and Mobilnet,
therefore, do not provide direct interconnection to the
public switched network. The interconnection is provided
by the underlying facilities based cellular licensee.
21 There are five other entities licensed by the Commission to
fovide 800 MHz Air-Ground telephone service.
2 MCI Comments at 3. MCI suggests that the Commission
waive any provision of the Commission's Rules with which
GTE's subsidiaries cannot comply for technical reasons, instead
6173
11. In its pet1tton. GTE argues that the definitions in
TOCSIA refer to fixed, rather than mobile, locations
There are five other entities licensed by the Commission to
fovide 800 MHz Air-Ground telephone service.
2 MCI Comments at 3. MCI suggests that the Commission
waive any provision of the Commission's Rules with which
GTE's subsidiaries cannot comply for technical reasons, instead
6173
11. In its pet1tton. GTE argues that the definitions in
TOCSIA refer to fixed, rather than mobile, locations. Spe-
cifically, GTE argues that an aggregator is defined as one
who makes phones available to transient users of its prem-
ises and an OSP is defined as one who provides operator
services from an aggregator location. According to GTE,
"premises" and "location" refer to a fixed point. Airplanes,
railroad trains and rental cars. argues GTE, do not con-
stitute fixed points and are not. therefore, premises or
locations under TOCSIA. GTE additionally argues that
certain of the requirements of TOCSIA are impossible for
its subsidiaries to comply with for technical reasons. GTE
asserts that the legislative history of TOCSIA demonstrates
that the problems TOCSIA was designed to prevent do not
exist with the services offered by the GTE subsidiaries.
IV. COMMENTS AND REPLY COMMENTS
12. Several commenters support GTE's position, but sug-
gest the Commission go further than just declaring
TOCSIA inapplicable to the GTE subsidiaries. For exam-
ple. In-Flight Phone Corporation (In-Flight). another ATG
service provider and Commission licensee. urges the Com-
mission to extend its ruling on GTE's petition to exempt
all 800 MHz Air-Ground Telephone Service licensees from
the rules adopted pursuant to TOCSIA. McCaw Cellular
Communications, Inc. (McCaw) and PhoneTel Technol-
ogies, Inc. (PhoneTel) argue that all mobile services should
be exempt. Cellular, Inc. (Cl). for its part. suggests that the
Commission declare that no cellular pay telephones are
subject to Commission regulation under TOCSIA.
13
mpt
all 800 MHz Air-Ground Telephone Service licensees from
the rules adopted pursuant to TOCSIA. McCaw Cellular
Communications, Inc. (McCaw) and PhoneTel Technol-
ogies, Inc. (PhoneTel) argue that all mobile services should
be exempt. Cellular, Inc. (Cl). for its part. suggests that the
Commission declare that no cellular pay telephones are
subject to Commission regulation under TOCSIA.
13. Other commenters argue, in addition to supporting
GTE's petition, that the particular services which they
provide should also be exempt. For example, Waterway
Communications System. Inc. (Waterway), Commission li-
censee of an Automated Maritime Telecommunications
System (AMTS) located along the Mississippi, Illinois, and
Ohio Rivers and Gulf Intracoastal Waterway, contends that
the shipboard telephone service on river cruise boats and
harbor cruise or dinner cruise boats it provides should be
exempt from the requirements of TOCSIA. Similarly, Pe-
troleum Communications, Inc. (Petrocom), Commission li-
censee
of
the
Domestic
Public
Cellular
Radio
Telecommunications Service system on frequency Block A
in the Gulf of Mexico Service Area, maintains that the
cellular pay telephone service it provides for the oil in-
dustry employees who work on various drilling rigs, pro-
duction platforms, and marine vessels in the Gulf should
be exempt.
14.
American
Telephone and
Telegraph Company
(AT&T) and MCI Telecommunications Corporation (MCI)
opposed GTE's petition. AT&T argues that the GTE subsid-
iaries' service arrangements fall
within the scope of
TOCSIA. MCI agrees, stating that "it seems clear that the
GTE
companies
are
providing operator services at
aggregator locations and, therefore. are subject to the re-
quirements of TOCSIA." 22
of granting a wholesale exemption from TOCSIA. We, note,
however, that the provisions for the rules under TOCSIA are
statutory and the Commission has limited discretion to waive
any of the provisions.
SIA. MCI agrees, stating that "it seems clear that the
GTE
companies
are
providing operator services at
aggregator locations and, therefore. are subject to the re-
quirements of TOCSIA." 22
of granting a wholesale exemption from TOCSIA. We, note,
however, that the provisions for the rules under TOCSIA are
statutory and the Commission has limited discretion to waive
any of the provisions.

DA 93-1022
Federal Communications Commission Record
8 FCC Red No. 18
V. DISCUSSION
A. GTE Subsidiaries
15. As stated previously, there exist two categories of
rules
adopted
under
TOCSIA--rules
that
apply
to
aggregators and rules that apply to OSPs. Our discussion,
therefore, begins with an analysis of whether the GTE
subsidiaries can be considered aggregators under our rules
and then turns to whether the· GTE subsidiaries can be
considered OSPs.
16. We have reviewed GTE's petition and the comments
and reply comments and we determine that Airfone,
Railfone, and Mobilnet are aggregators within the meaning
of TOCSIA. The statutory definition of aggregator is clear
and unambiguous. The GTE subsidiaries all, "in the or-
dinary course of [their] operations, make[] telephones avail-
able to the public or to transient users of [their] premises,
for interstate telephone calls." 23 We find no support in the
statutory language or legislative history of TOCSIA for the
limited definition of "premises" and "location" proffered
by GTE. GTE argues that the definition of premises refers
to a fixed point and not a mobile site such as an airplane,
train, or rental car. We do not believe that such a narrow
definition of "premises" serves the purpose of the rule or
the underlying statute. GTE also argues that Congress only
intended TOCSIA to apply to telephones made available in
"hotels, universities, and other public locations." 24 GTE
asserts that airplanes, trains, and rental cars are not "loca-
tions" because such vehicles are mobile
train, or rental car. We do not believe that such a narrow
definition of "premises" serves the purpose of the rule or
the underlying statute. GTE also argues that Congress only
intended TOCSIA to apply to telephones made available in
"hotels, universities, and other public locations." 24 GTE
asserts that airplanes, trains, and rental cars are not "loca-
tions" because such vehicles are mobile. We conclude,
however, that airplanes, trains, and rental cars can reason-
ably be considered "locations" despite the fact that they are
mobile. The Commission specifically stated in the Report
and Order establishing our TOCSIA rules that it "will
interpret the definition [of aggregator] broadly enough to
ensure compliance with the goals of our rules and the
Act."2s
17. Moreover, the statute applies not only to telephones
made available to transient users of the aggregator's prem-
ises, but also to telephones made available to the public.
The telephones offered by the GTE subsidiaries are avail-
able to the public.26 This is not a situation in which the
telephones are made available by "establishments such as
law firms or corporations ... solely for the convenience of
their customers," which Congress stated would be exempt
from the rules under TOCSIA.27 The telephone service
provided for the convenience of customers referred to by
Congress are courtesy telephones. The telephones provided
by the GTE subsidiaries are not courtesy telephones be-
23 See 47 C.F.R. § 64.708(b); 47 U.S.C. § 226(a)(2).
24 S. Rep. No. 439, lOlst Cong .. 2d Sess. at 2, 5.
25
Report and Order, 6 FCC Red at 2751.
26 While it is true that the telephones offered by Airfone and
Railfone are only available to ticketed passengers and the tele-
phones offered by Mobilnet are only available to automobile
rental agreement holders, we believe that the telephones are
nonetheless available to the public
.C. § 226(a)(2).
24 S. Rep. No. 439, lOlst Cong .. 2d Sess. at 2, 5.
25
Report and Order, 6 FCC Red at 2751.
26 While it is true that the telephones offered by Airfone and
Railfone are only available to ticketed passengers and the tele-
phones offered by Mobilnet are only available to automobile
rental agreement holders, we believe that the telephones are
nonetheless available to the public. This situation is analogous
to the payphones available inside airport terminals which are
only available to ticketed passengers who have cleared security.
Although these payphones are only available to ticketed pas-
~~ngers as well, the mandates of TOCSIA apply.
' See S. Rep. No. 439, lOlst Cong., 2d Sess. at 10.
28 We note also that the airlines, railroad carriers, and car
rental agencies which have GTE telephones installed in their
6174
,
cause the consumer. not the telephone provider. pays for
the cost of the call. Because the telephones provided by the
GTE subsidiaries fall within the statutory definition of
aggregator telephones, the GTE subsidiaries must comply
with the aggregator rules. Therefore, GTE's petition must
be denied in so far as the aggregator rules of TOCSIA are
concerned.28
18. Having ruled that Airfone, Railfone. and Mobilnet
are aggregators under our rules, we now turn to whether
the GTE subsidiaries are OSPs under the rules. An OSP. as
discussed above, is a provider of interstate telecommunica-
tions service initiated from an aggregator location that in-
cludes automatic or live assistance for billing or call
completion.29 Airfone does provide this type of service.
Airfone not only provides a radio link between the air-
plane and ground base station. but also interconnects di-
rectly to the interstate switched network. Because Airfone's
telephones are activated by credit cards. Airfone provides
automatic assistance for billing purposes. 30 Accordingly, we
find Airfone to be an OSP under our rules that must
comply with the OSP rules of TOCSIA.
19
rvice.
Airfone not only provides a radio link between the air-
plane and ground base station. but also interconnects di-
rectly to the interstate switched network. Because Airfone's
telephones are activated by credit cards. Airfone provides
automatic assistance for billing purposes. 30 Accordingly, we
find Airfone to be an OSP under our rules that must
comply with the OSP rules of TOCSIA.
19. The concerns expressed by GTE about its inability to
comply with various TOSCIA rules are misplaced. For
instance, GTE maintains that Airfone cannot comply with
the call splashing prohibition of Section 64.705(a)(3) of the
Rules. GTE argues that because it is impossible to deter-
mine the precise location where the call was placed it
cannot comply with Section 64.705. Currently. if a cus-
tomer using Airfone chose to use his or her own IXC, the
location on the bill would reflect the location of the inter-
cepting ground station and not the actual location of the
airplane at the time the call was placed. 31 Airfone is cur-
rently converting to a second-generation system that will
route all calls from the receiving ground station to one of
two switching centers and the location of the call would,
therefore, reflect one of these two switching centers in the
future.
20. However, Section 64.705(a)(3) allows splashing when
the customer requests to be transferred to another provider
of operator services. the customer is informed that the rates
for the call may not reflect the actual originating location
of the call, and the customer consents to the transfer.
Accordingly, Airfone informs customers in the posting of
its rates that they can select the IXC to carry their call, but
that the rates charged by that IXC may reflect an originat-
ing location other than the plane's actual location
ices. the customer is informed that the rates
for the call may not reflect the actual originating location
of the call, and the customer consents to the transfer.
Accordingly, Airfone informs customers in the posting of
its rates that they can select the IXC to carry their call, but
that the rates charged by that IXC may reflect an originat-
ing location other than the plane's actual location. then a
customer could choose to use his or her own IXC by
consenting to the transfer and the splashing would be
allowed.32
vehicles are aggregators under our rules because they are pro-
viding the use of the telephones to transient users and members
of the public, their customers.
29 See 47 C.F.R. § 64.708(g); 47 U.S.C. § 226(a)(7).
30 Additionally, Airfone provides its own live operators to assist
customers.
31 There is no practical method to determine from the airplane
in every case which base station will pick up a call when it is
~laced.
2 We note that Airfone now bundles the airtime and long
distance portion of its rates. This bundling would apparently
allow Airfone to charge the same rate to the customer regardless
of whether the customer chooses his or her own lXC. Under
this scenario, if a customer were to choose his or her own IXC.
he or she would be billed Airfone's bundled rate and also billed
by the chosen lXC, thereby incurring a higher overall charge.

8 FCC Red No. 18
Federal Communications Commission Record
DA 93-1022
21. Both Railfone and Mobilnet only provide radio links
to a facilities based cellular carrier. The underlying cellular
carrier that provides the operator service interconnects di-
rectly to the interstate public switched network. Therefore,
we find that Railfone and Mobilnet are not OSPs under
our rules. Rather, the cellular carriers that connect the
calls from Railfone and Mobilnet to the switched network
are the OSPs for the services provided
to a facilities based cellular carrier. The underlying cellular
carrier that provides the operator service interconnects di-
rectly to the interstate public switched network. Therefore,
we find that Railfone and Mobilnet are not OSPs under
our rules. Rather, the cellular carriers that connect the
calls from Railfone and Mobilnet to the switched network
are the OSPs for the services provided. For this reason,
GTE's concern that it cannot brand calls on Railfone and
Mobilnet because it does not control the cellular switch
which receives the calls is misplaced. The call branding
requirement is a regulation imposed upon the OSPs. Be-
cause Railfone and Mobilnet are only aggregators under
our rules, Railfone and Mobilnet do not need to comply
with the OSP requirements.33
22. Likewise, because our ruling that the telephones
provided by Airfone fall within the aggregator provision of
our rules, In-Flight's petition to exempt all ATG licensees
from TOCSIA must be denied in so far as the aggregator
rules are concerned. Accordingly, we extend our ruling
that Airfone must comply with the aggregator rules to all
ATG licensees. Likewise, our ruling that Airfone is an OSP
under the Rules extends to all ATG carriers. Therefore. all
the ATG licensees are to comply with the OSP require-
ments as well as the aggregator requirements of TOCSIA.
Accordingly. In-Flight"s request that all ATG licensees be
exempt from the requirements of TOCSIA is denied.
B. Waterway
23. We also find that Waterway's AMTS services is not
exempt from either the aggregator or OSP requirements of
TOCSIA. Waterway provides telephones on river cruise
boats and harbor cruise or dinner boats. These telephones
are available for interstate telephone calls by the public
and by transient users of the premises of the boat.
Waterway is therefore an aggregator under our rules
Waterway
23. We also find that Waterway's AMTS services is not
exempt from either the aggregator or OSP requirements of
TOCSIA. Waterway provides telephones on river cruise
boats and harbor cruise or dinner boats. These telephones
are available for interstate telephone calls by the public
and by transient users of the premises of the boat.
Waterway is therefore an aggregator under our rules.
Waterway argues that the call blocking prohibition has no
application to it because the radio link provided by
Waterway from the ship to the shore base station is the
only manner in which a customer could obtain a radio
link needed for a call. Therefore, argues Waterway, the
customer can not avoid using Waterway's services in order
This practice contravenes the underlying goal of TOCSIA which
allows callers to choose the IXC offering the best rate and to pay
that rate. While we have serious concerns about the lawfulness
of this practice, this issue is not within the purview of this
Order.
33 The
facilities
based
cellular carrier which intercepts
Railfone's or Mobilnet's calls, however, is an OSP under the
Commission's rules. Therefore, the cellular licensee will be
required to comply with the OSP rules adopted pursuant to
TOCSIA.
34 Like Airfone, Waterway has bundled its airtime and long
distance charges. A customer using Waterway will apparently
incur a higher total charge for a call if he or she chooses his or
her own carrier. As we said with respect to Airfone, we have
serious concerns about the reasonableness of this practice. See
note 32, supra. However, the legality of Waterway's tariff is not
within the scope of this proceeding. We only decide here that
Waterway is subject to the requirements of TOCSIA.
35 Moreover, the river boat and harbor and dinner cruise boat
companies which have allowed the installation of Waterway
telephones on their vessels are also agreggators under our rules.
36 Waterway does not dispute the fact that it is an OSP in its
6175
to place a call
ff is not
within the scope of this proceeding. We only decide here that
Waterway is subject to the requirements of TOCSIA.
35 Moreover, the river boat and harbor and dinner cruise boat
companies which have allowed the installation of Waterway
telephones on their vessels are also agreggators under our rules.
36 Waterway does not dispute the fact that it is an OSP in its
6175
to place a call. Waterway, however, has misconstrued the
call blocking prohibition. While it is true that a customer
must use Waterway to establish a radio link with the shore.
the customer does not have to accept the presubscribed
IXC that connects the call from the shore base station to its
terminating point. Therefore, after the link with the shore
has been established, Waterway may not block access to the
IXC of the customer's choosing.34 Consumers must be
allowed to use the long distance carrier of their choice.
Accordingly, Waterway's request that its AMTS services
offered to customers on river and harbor cruise boats be
exempt from the aggregator requirements of TOCSIA is
denied. 35
24. Waterway, like Airfone, offers more than a radio link
to a receiving station. Waterway is the provider of an
operator service offering interconnection to the switched
network. Waterway furnishes both live operator assistance
and automatic connection. Waterway, therefore offers inter-
state telecommunications service from an aggregator loca-
tion using an automatic or live operator for billing and call
completion. Accordingly. Waterway is an OSP under our
rules,36 and is therefore required to comply also with the
OSP rules of TOCSIA. 37
C. Petrocom
25. Petrocom, as the licensee of cellular frequency Block
A in the Gulf of Mexico, provides pay telephone service to
oil industry employees, who typically work two-week shifts,
on drilling rigs. production platforms, and marine vessels.
Petrocom states that none of its telephones is in a public
location
6 and is therefore required to comply also with the
OSP rules of TOCSIA. 37
C. Petrocom
25. Petrocom, as the licensee of cellular frequency Block
A in the Gulf of Mexico, provides pay telephone service to
oil industry employees, who typically work two-week shifts,
on drilling rigs. production platforms, and marine vessels.
Petrocom states that none of its telephones is in a public
location. Rather, its cellular telephones are in areas acces-
sible only with the permission of the oil company owners.
We find, however, that Petrocom is an aggregator under
TOCSIA. While the oil platforms may not be public, and
despite the length of their shifts. which requires the oil
industry employees to take temporary residence off shore,
the users of Petrocom 's telephones are "transient users of
[the oil company's] premises." 38 Petrocom, therefore, fits
within the definition of an aggregator.39 The work shifts of
the oil industry employees are of a duration that makes the
comments. Instead, Waterway simply requests that any exemp-
tion given to the GTE subsidiaries also be extended to AMTS
service.
37 To avoid violating the call splashing requirements of our
rules (Section 64.705(a)(3)), Waterway must, in the posting of
its rates, inform customers that if they choose their own IXC,
the billing location reflected on the resulting long distance bill
will be the location of the receiving switch and not the location
of the ship. If the customer elects to be transferred to an lXC
other than the presubscribed IXC after being informed of this
the customer will have consented to the transfer. Therefore,
even though the location of the call on a long distance portion
of the bill would reflect the receiving shore station and not the
actual origination of the call, the splashing is allowed because
the customer consented. See 47 C.F.R. § 64.705(a)(3).
38 See 47 C.F.R. § 64.708(b); 47 U.S.C. § 226(a)(2)
IXC after being informed of this
the customer will have consented to the transfer. Therefore,
even though the location of the call on a long distance portion
of the bill would reflect the receiving shore station and not the
actual origination of the call, the splashing is allowed because
the customer consented. See 47 C.F.R. § 64.705(a)(3).
38 See 47 C.F.R. § 64.708(b); 47 U.S.C. § 226(a)(2).
39 Petrocom likens its :;ituation to that of a telephone made
available by "establishments such as law firms or corpora-
tions ... solely for the convenience of their customers," which is
exempt from TOCSIA. See S. Rep. No. 439. IOlst Cong., 2d Sess.
at JO. As stated previously, this type of telephone is a courtesy
telephone. The telephones offered by Petrocom are not courtesy
telephones because the cost of the call is borne by the customer
and not the telephone provider. See , 17, supra.

DA 93-1022
Federal Communications Commission Record
8 FCC Red No. 18
employees "transient.1140 We believe that the dual concerns
of Congress that consumers are aware of the pre-subscribed
operator service provider and that the consumer have the
opportunity to employ the carrier of his or her choice are
present here. Petrocom has failed to demonstrate any basis
for it not being considered an aggregator under our rules.
Accordingly, we are denying Petrocom's request and
Petrocom must. therefore, comply with the aggregator re-
quirements of our rules.41
26. Further, the service offered by Petrocom is an inter-
state telephone service that originates from an aggregator
location, and includes automatic or live assistance for bill-
ing and call completion purposes. Petrocom offers cellular
radio telephone service from the Gulf of Mexico to the
shore and connection with the public switched network.
Petrocom is, therefore, an OSP under our rules
26. Further, the service offered by Petrocom is an inter-
state telephone service that originates from an aggregator
location, and includes automatic or live assistance for bill-
ing and call completion purposes. Petrocom offers cellular
radio telephone service from the Gulf of Mexico to the
shore and connection with the public switched network.
Petrocom is, therefore, an OSP under our rules. Accord-
ingly, we deny Petrocom's request for an exemption from
the rules established pursuant to TOCSIA and rule that
Petrocom must also comply with the OSP requirements of
our rules.
27. Petrocom argues that applying the aggregator rules to
its cellular service in the Gulf could force it to discontinue
service. Petrocom states that if it failed to block access
codes, its customers would avoid airtime charges by placing
calls with their selected IXCs. Petrocom asserts that the
large IXCs will not bill and collect cellular airtime charges
in connection with their provision of OSP services.
Petrocom argues that without compensation for the cellular
airtime on its cellular pay telephones it will not be able to
afford to continue service in the Gulf of Mexico.
28. The issue of compensation for competitive private
pay telephone owners has been addressed by the Commis-
sion, and Petrocom participated in these proceedings. In
the Commission's Second Report and Order in CC Docket
91-35,42 the Commission stated that the question of whether
companies such as Petrocom are aggregators and thus
would be required to unblock access to the IXCs of the
customer's choice was at that time unresolved.43 The Com-
mission, therefore, did not rule on the issue of compensa-
tion to Petrocom. However, based on the record here, it
appears that once Petrocom unblocks access from its
phones, it will not be able to collect airtime charges.44
Thus, we tentatively conclude that Petrocom is entitled to
compensation, but we lack sufficient information to deter-
mine the exact level of compensation
lved.43 The Com-
mission, therefore, did not rule on the issue of compensa-
tion to Petrocom. However, based on the record here, it
appears that once Petrocom unblocks access from its
phones, it will not be able to collect airtime charges.44
Thus, we tentatively conclude that Petrocom is entitled to
compensation, but we lack sufficient information to deter-
mine the exact level of compensation. Therefore, we order
Petrocom to provide additional information on the level of
compensation to which it believes it is entitled within 20
days of the release of this Order.45 We further invite any
interested party wishing to comment on either. our tenta-
tive conclusion that Petrocom is entitled to compensation
or on the amount Petrocom should be compensated to file
40 See e.g., Report and Order, 6 FCC Red at 2752. n.31. (Uni-
versity housing which is other than a typical apartment build-
ing is covered under the definition of TOCSIA).
41 The oil companies with Petrocom telephones installed on
their drilling rigs, production platforms, and marine vessels are
also aggregators under the Commission's rules.
42 Policies and Rules Concerning Operator Access and Pay
Telephone Compensation, Second Report and Order, 7 FCC
Red 3251 (1992)
43 The Commission referenced the instant petition for declara-
tory ruling filed by GTE. See Second Report and Order, 7 FCC
Red at n.103.
44 Apparently the issue of compensation does not arise for the
6176
comments within 45 days of the release of this Order.
Reply comments will be due 60 days after the release of
this Order.
D. Other Commenters
29. We also deny the broad ruling sought by McCaw and
PhoneTel to exempt all mobile telephones from our
TOCSIA rules. McCaw and PhoneTel advance the same
argument as GTE that "premises" does not apply to mobile
telephones, an argument we have already rejected
within 45 days of the release of this Order.
Reply comments will be due 60 days after the release of
this Order.
D. Other Commenters
29. We also deny the broad ruling sought by McCaw and
PhoneTel to exempt all mobile telephones from our
TOCSIA rules. McCaw and PhoneTel advance the same
argument as GTE that "premises" does not apply to mobile
telephones, an argument we have already rejected. Accord-
ingly, we rule that the provider of any mobile telephone
made available for interstate telephone calls either to the
public, or to transient users of the mobile premises. must
comply with the aggregator rules of TOCSIA. For the same
reasons, we deny Cl's request to exempt all cellular pay
telephones from the requirements of TOCSIA. Any entity
providing cellular telephones for interstate calls to the
public or to transient users of the premises in which the
cellular telephones are installed must comply with the
Commission's aggregator rules.
30. The comments filed by McCaw, PhoneTel, and CI do
not describe any specific service to the degree necessary to
make a determination whether other mobile or cellular
telephone service providers are OSPs under the Rules. The
comments filed by these parties speak only in general
terms about exempting all mobile and cellular telephones
from the requirements of TOCSIA. If, however, the service
provider, such as McCaw, PhoneTel, or CI, provides inter-
state telecommunications service from an aggregator loca-
tion that includes automatic or live assistance for billing or
call completion without billing to the telephone from
which the call was placed or without an access code or
previously established billing account, then the service pro-
vider must comply with the OSP requirements for that
service.
IV. CONCLUSION AND ORDERING CLAUSES
31. In conclusion, we find that TOCSIA is clear in its
terms
tion that includes automatic or live assistance for billing or
call completion without billing to the telephone from
which the call was placed or without an access code or
previously established billing account, then the service pro-
vider must comply with the OSP requirements for that
service.
IV. CONCLUSION AND ORDERING CLAUSES
31. In conclusion, we find that TOCSIA is clear in its
terms. The statute mandates that the Commission regulate
as an aggregator any entity that makes telephones available
to the public or to transient users of its premises and that
we regulate as an OSP any entity that provides interstate
telecommunications service initiated from an aggregator
location that includes automatic or live assistance to ar-
range for billing or call completion. We find that the GTE
subsidiaries, as well as all ATG carriers, Waterway, and
Petrocom provide services which make them aggregators.
Furthermore, we find that Airfone, as well as all ATG
carriers, Waterway, and Petrocom provide services which
make them OSPs. The statute requires that the petitioners
GTE subsidiaries or for Waterway because these entities use
credit card activated telephones that enable GTE and Waterway
to obtain billing information independent of the lXC used by
the customer. Therefore, GTE and Waterway are able to bill the
customer for the airtime and the IXC bills separately for the
long distance portion of the call.
45 Any other mobile telecommunications carrier affected by
this Order that believes it may be entitled to compensation as
result of being covered by the requirements of TOCSIA also
should file comments within 45 days of the release of this
Order. Based on the record in this proceeding, however, we do
not conclude that any other mobile telecommunications carrier
is entitled to compensation.
45 Any other mobile telecommunications carrier affected by
this Order that believes it may be entitled to compensation as
result of being covered by the requirements of TOCSIA also
should file comments within 45 days of the release of this
Order. Based on the record in this proceeding, however, we do
not conclude that any other mobile telecommunications carrier
is entitled to compensation.

8 FCC Red No. 18
Federal Communications Commission Record
DA 93-1022
and commenters must comply with the requirements of
TOCSIA. 46 Accordingly, we deny the petition for declara-
tory ruling and other requests for exemptions of TOCSIA.
32. IT IS THEREFORE ORDERED that the Petition for
a Declaratory Ruling filed by GTE Service Corporation
that GTE Airfone Incorporated, GTE Railfone Incorpo-
rated, and GTE Mobilnet Incorporated to be exempt from
the requirements of the Telephone Operator Consumer
Services Improvement Act of 1990 IS HEREBY DENIED.
33. IT IS FURTHER ORDERED that the requests of
Waterway Communications System, Inc. and Petroleum
Communications, Inc. for an exemption from the require-
ments of the Telephone Operator Consumer Services Im-
provement Act of 1990 ARE HEREBY DENIED.
34. IT IS FURTHER ORDERED that the declaratory
rulings filed by In-Flight Phone Corporation, McCaw Cel-
lular Communications, Inc., PhoneTel Technologies, Inc.,
and Cellular, Inc., for broad exemptions from the require-
ments of the Telephone Operators Consumer Services Im-
provement Act of 1990 ARE HEREBY DENIED.
35.
IT
IS
FURTHER ORDERED that Petroleum
Communications. Inc. SHALL FILE additional information
within 20 days of the release of this Order demonstrating
the level of compensation to which it believes it is entitled.
36. IT IS FURTHER ORDERED that parties wishing to
comment on either the tentative conclusion that Petrocom
is entitled to compensation. or on Petrocom's comments
concerning the amount that Petrocom should be com-
pensated shall file comments by October 12, 1993
information
within 20 days of the release of this Order demonstrating
the level of compensation to which it believes it is entitled.
36. IT IS FURTHER ORDERED that parties wishing to
comment on either the tentative conclusion that Petrocom
is entitled to compensation. or on Petrocom's comments
concerning the amount that Petrocom should be com-
pensated shall file comments by October 12, 1993. Reply
comments shall be filed by October 27, 1993.
FEDERAL COMMUNICATIONS COMMISSION
Kathleen B. Levitz
Acting Chief, Common Carrier Bureau
46 Those only providing telephones without providing interstate
or;rator service are only subject to the aggregator requirements.
4 The Bell Telephone Company of Pennsylvania, the four
6177
APPENDIX A
PARTIES FILING COMMENTS
American Telegraph and Telephone
Bell Atlantic Telephone Companies47
Cellular, Inc.
lnflight Phone Corporation
MCI Telecommunications Corporation
Petroleum Communications, Inc.
Waterway Communications System, Inc.
PARTIES FILING REPLY COMMENTS
MCI Telecommunications Corporation
GTE Service Corporation
McCaw Cellular Communications, Inc.
PhoneTel Technologies, Inc.
Waterway Communications System, Inc.
Chesapeake and Potomac Telephone Companies, the Diamond
State Telephone Company, and New Jersey Bell Telephone
Company.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/statutes/FCC_DA_93_1022. Check the current official text before relying on it. Not legal advice.