Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 31889-31895 [2016-12025]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 81, Number 98 (Friday, May 20, 2016)]
[Proposed Rules]
[Pages 31889-31895]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-12025]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 64

[CG Docket No. 02-278; FCC 16-57]


Rules and Regulations Implementing the Telephone Consumer 
Protection Act of 1991

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document, the Federal Communications Commission 
(Commission) invites comment on proposed revisions to its rules under 
the Telephone Consumer Protection Act (TCPA) to implement a provision 
of the Bipartisan Budget Act of 2015 that excepts from the TCPA's 
prior-express-consent requirement autodialed and prerecorded calls 
``made solely to collect a debt owed to or guaranteed by the United 
States.''

DATES: Comments are due on or before June 6, 2016. Reply comments are 
due on or before June 21, 2016.

ADDRESSES: You may submit comments identified by CG Docket No. 02-278 
by any of the following methods:
     Electronic Filers: Comments may be filed electronically 
using the Internet by accessing the Commission's Electronic Comment 
Filing System (ECFS), through the Commission's Web site: https://apps.fcc.gov/ecfs/. Filers should follow the instructions provided on 
the Web site for submitting comments. For ECFS filers, in completing 
the transmittal screen, filers should include their full name, U.S. 
Postal service mailing address, and CG Docket No. 02-278.
     Paper Filers: Parties who choose to file by paper must 
file an original and one copy of each filing. Filings can be sent by 
hand or messenger delivery, by commercial overnight courier, or by 
first-class or overnight U.S. Postal Service mail (although the 
Commission continues to experience delays in receiving U.S. Postal 
Service mail). All filings must be addressed to the Commission's 
Secretary, Office of the Secretary, Federal Communications Commission.
    For detailed instructions for submitting comments and additional 
information on the rulemaking process, see the SUPPLEMENTARY 
INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Kristi Thornton, Consumer Policy 
Division, Consumer and Governmental Affairs Bureau, Federal 
Communications Commission, 445 12th Street SW., Washington, DC 20554 by 
phone at (202) 418-2467 or by email at: Kristi.Thornton@fcc.gov.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice 
of Proposed Rulemaking (NPRM), Rules and Regulations Implementing the 
TCPA of 1991, CG Docket No. 02-278, FCC 16-57, adopted May 24, 2016, 
and released May 6, 2016. A copy of document FCC 16-57 and any 
subsequently filed documents in this matter will be available during 
regular business hours at the FCC Reference Center, Portals II, 445 
12th Street SW., Room CY-A257, Washington, DC 20554, (202) 418-0270. 
The full text of document FCC 16-57 will be available for public 
inspection and copying via ECFS, and during regular business hours at 
the FCC Reference Information Center, Portals II, 445 12th Street SW., 
Room CY-A257, Washington, DC 20554. A copy of document FCC 16-57 and 
any subsequently filed documents in this matter may also be found by 
searching ECFS at: https://apps.fcc.gov/ecfs/ (insert CG Docket No. 02-
278 into the Proceeding block).
    Pursuant to 47 CFR 1.415, 1.419, interested parties may file 
comments and reply comments on or before the dates indicated on the 
first page of this document. Comments may be filed using ECFS. See 
Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 
(1998).
     All hand-delivered or messenger-delivered paper filings 
for the Commission's Secretary must be delivered to FCC Headquarters at 
445 12th Street SW., Room TW-A325, Washington, DC 20554. All hand 
deliveries must be held together with rubber bands or fasteners. Any 
envelopes must be disposed of before entering the building.
     Commercial Mail sent by overnight mail (other than U.S. 
Postal Service Express Mail and Priority Mail) must be sent to 9300 
East Hampton Drive, Capitol Heights, MD 20743.
     U.S. Postal Service first-class, Express, and Priority 
mail should be addressed to 445 12th Street SW., Washington, DC 20554.
    Pursuant to Sec.  1.1200 of the Commission's rules, 47 CFR 1.1200, 
this matter shall be treated as a ``permit-but-disclose'' proceeding in 
accordance with the Commission's ex parte rules. Persons making oral ex 
parte presentations are reminded that memoranda summarizing the 
presentations must contain summaries of the substances of the 
presentations and not merely a listing of the subjects discussed. More 
than a one or two sentence description of the views and arguments 
presented is generally required. See 47 CFR 1.1206(b). Other rules 
pertaining to oral and written ex parte presentations in permit-but-
disclose proceedings are set forth in Sec.  1.1206(b) of the 
Commission's rules, 47 CFR 1.1206(b).
    To request materials in accessible formats for people with 
disabilities (braille, large print, electronic files, audio format), 
send an email to fcc504@fcc.gov or call the Consumer and Governmental 
Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY). 
Document FCC 16-57 can also be downloaded in Word or Portable Document 
Format (PDF) at: https://www.fcc.gov/cgb/policy.

[[Page 31890]]

Initial Paperwork Reduction Act of 1995 Analysis

    Document FCC 16-57 seeks comment on proposed rule amendments that 
may result in modified information collection requirements. If the 
Commission adopts any modified information collection requirements, the 
Commission will publish another notice in the Federal Register inviting 
the public to comment on the requirements, as required by the Paperwork 
Reduction Act. Public Law 104-13; 44 U.S.C. 3501-3520. In addition, 
pursuant to the Small Business Paperwork Relief Act of 2002, the 
Commission seeks comment on how it might further reduce the information 
collection burden for small business concerns with fewer than 25 
employees. Public Law 107-198; 44 U.S.C. 3506(c)(4).

Synopsis of the Notice of Proposed Rulemaking

    1. In the NPRM, the Commission seeks comment on implementation of 
the Bipartisan Budget Act of 2015 (Budget Act) amendments. Among other 
things, the Commission seeks comment on a number of implementation 
questions, such as which calls are covered by the phrase ``solely to 
collect,'' how it should restrict the number and duration of such 
calls, and how to implement such restrictions.

Background

A. Covered Calls

    2. At what point is a call to collect a debt a covered call? The 
Commission turns first to the phrase ``solely to collect a debt'' and 
seeks comment regarding the parameters of that phrase, including how 
the Commission should interpret ``solely'' and ``collect.'' The 
Commission's proposal, to ensure that debtors do not receive non-
consent calls before failing to make a timely payment, is to interpret 
``solely to collect a debt'' to mean only those calls made to obtain 
payment after the borrower is delinquent on a payment. The Commission 
seeks comment on this proposal, including how the Commission should 
interpret ``delinquent'' for these purposes, and any alternative 
approaches. The Commission also seeks comment on the alternative that 
covered calls may only be made after the debtor is in default, how the 
Commission should define ``default,'' and whether it should distinguish 
between default caused by non-payment and a default resulting from a 
different cause under the terms of the debt instrument.
    3. Are debt servicing calls covered? The Commission notes that debt 
servicing calls may provide a valuable service by offering information 
about options and programs designed to keep at-risk debtors from 
defaulting or becoming delinquent on their loans. Helping a debtor 
avoid delinquency or default can preserve the person's payment history 
and credit rating, and help maintain eligibility for future loans. The 
potential value of these debt servicing calls, and the probability that 
servicing calls will create conditions for debtors that allow debts to 
be more readily collected by the United States, leads the Commission to 
propose that servicing calls should be included in covered calls. The 
Commission seeks comment on this proposal and, if adopted, how to 
ensure it does not result in the types of calls consumers would not 
want, such as marketing calls. The Commission seeks comment on what 
initiating event should enable a creditor or entity acting on a 
creditor's behalf to begin making covered calls to convey debt 
servicing information. Its proposal, above, is that covered calls begin 
when a borrower is delinquent on a payment; should delinquency also be 
the initiating event for debt servicing calls, or should some other 
event trigger a caller's ability to make servicing calls under the 
exception? What should the trigger event be?
    4. The Commission seeks comment on the definition of ``servicing'' 
that should guide its analysis in this regard. Should servicing calls 
include calls informing debtors how to reduce payment amounts; 
consolidate, modify, or restructure loans; change payment dates; or 
other matters indirectly related to seeking payment? The Commission 
proposes that permissible ``servicing'' calls only refer to calls made 
by the creditor and those entities acting on behalf of the creditor. 
The Commission seeks comment on this proposal.
    5. ``Owed to or guaranteed by the United States.'' The Commission 
seeks comment on the meaning of the phrase ``a debt owed to or 
guaranteed by the United States.'' What is a debt ``owed to'' the 
United States and a debt ``guaranteed by'' the United States? Does the 
phrase ``owed to or guaranteed by'' include debts insured by the United 
States? Should the Commission look to or adopt the definition of 
``debt'' in the DCIA? Why or why not?
    6. The Commission also seeks comment on whether there are any 
circumstances under which a party other than the federal government 
obtains a pecuniary interest in a debt such that the debt should no 
longer be considered to be ``owed to . . . the United States.'' Basic 
contract principles dictate that when an owner sells an item, it no 
longer belongs to the original owner, but to the purchaser. Likewise, 
the purchaser of a debt is owed the repayment obligation, not the prior 
obligee. For example, would a debt still be ``owed to . . . the United 
States'' if the right to repayment is transferred in whole or part to 
anyone other than the United States, or a collection agency collects 
the funds and then remits to the federal government a percentage of the 
amount collected? Are there specific types of debts that are covered or 
not covered by the phrase ``debt owed to or guaranteed by the United 
States,'' such as federal student loans, Small Business Administration 
loans, and federally guaranteed mortgages? Are there any other factors 
the Commission should consider in determining which types of debts 
should be included or excluded from this phrase for purposes of 
implementing the Budget Act amendments to the TCPA? If so, what are 
those factors? Consistent with the focus of the amended statutory 
language on debts ``owed to or guaranteed by the United States,'' 
should the Commission also require that the content of covered calls be 
limited to such debts, and that such calls not be permitted to include 
content concerning other debts or matters about which the caller may 
want to speak with the debtor? Similarly, can the Commission and should 
the Commission place any limits on a covered caller using or 
transferring (such as by sale) information (such as the debtor's 
location or phone number) obtained during covered calls in order to 
collect other debts or to address other matters?
    7. Who can be called? The Commission seeks comment on the person or 
persons to whom covered calls may be made. The Commission believes the 
most reasonable way to read the phrase ``solely to collect a debt'' is 
to include only calls to the person or persons obligated to pay the 
debt because it appears impossible that calls to non-debtors by their 
nature would directly result in collection from the debtor. The 
Commission believes this approach will ensure that a debtor's family, 
friends, and other acquaintances will not be subject to non-consent 
robocalls seeking information about the debtor. The Commission seeks 
comment on this proposal and the related question of whether it should 
limit covered calls to the cellular telephone number the debtor 
provided to the creditor, e.g., on a loan application.
    8. The Commission seeks comment on whether calls to persons the 
caller does not intend to reach, that is persons whom the caller might 
believe to be the debtor but is not, are covered by the

[[Page 31891]]

exception. Parties seeking debtors' current telephone numbers often use 
techniques such as skip tracing, which are not guaranteed to identify 
the debtor. The Commission proposes to exclude such calls from the 
exception to encourage callers to avoid robocalling unwitting 
individuals who have no connection to the debtor. Similarly, and 
consistent with its recent robocalls decision, the Commission proposes 
that calls to a wireless number a debtor provided to a creditor, but 
which has been reassigned unbeknownst to the caller, are not covered by 
the exception, but have the same one-call window the Commission has 
found to constitute a reasonable opportunity to learn of reassignment. 
The Commission seeks comment on its proposals and any alternatives.
    9. Who may call? The Commission next seeks comment on who may make 
the covered calls at issue. As amended, the relevant portion of the 
TCPA reads: ``It shall be unlawful for any person . . . to make any 
call . . . using any [autodialer] or an artificial or prerecorded voice 
to any [wireless number] unless such call is made solely to collect a 
debt owed to or guaranteed by the United States.'' This provision is 
not clear as to who may make calls covered by the exception. The 
Commission believes the most reasonable way to interpret this language 
is to include calls made by creditors and those calling on their 
behalf, including their agents. Is there a limiting principle to 
determining who should be deemed to be acting on behalf of the 
creditor? The Commission seeks comment on its interpretation and 
whether it should interpret the statute to include other callers and, 
if so, who. Alternatively, should the Commission interpret the statute 
to apply more narrowly to only the creditor or to the creditor and its 
agents acting within the actual scope of their authority?
    10. The Commission notes that petitions pending before the 
Commission seek clarification regarding the meaning of ``person'' and 
whether the federal government or its agents are persons for purposes 
of the TCPA, among other things. The Commission seeks comment on 
whether the Budget Act amendments imply that the federal government is 
a person for TCPA purposes and whether the Commission must resolve 
these questions in order to complete this rulemaking. The Commission 
also seeks comment on whether and, if so, how the Supreme Court's 
recent decision in Campbell-Ewald Co. v. Gomez should inform the 
implementation of the Budget Act amendments to the TCPA.

B. Limits on Number and Duration of Covered Calls

    11. Need for restrictions. In considering the need for restrictions 
on covered calls, the Commission notes the volume of consumer 
complaints, as set forth above. These factors, along with Congress' 
explicit statement that the Commission ``shall prescribe regulations to 
implement the amendments made by'' the Budget Act, and Congress' 
authorization that the Commission ``may restrict or limit the number 
and duration of calls made to a telephone number assigned to a cellular 
telephone service to collect a debt owed to or guaranteed by the United 
States,'' lead the Commission to propose that it does so here. The 
Commission seeks comment on its proposal and on what types of number 
and duration restrictions it should adopt for the covered calls. Apart 
from its specific proposals and questions below, the Commission seeks 
comment generally on what other actions it should consider to reduce 
unwanted debt collection robocalls to consumers.
    12. If adopted, the nature of restrictions. The Commission seeks 
comment on how it should restrict or limit the number and duration of 
covered calls, including both collection calls and debt servicing 
calls. Consistent with the conditions the Commission has adopted when 
granting exemptions to permit certain free-to-end-user robocalls to be 
made without consent of the called party, and regardless of whether the 
caller leaves a prerecorded or artificial-voice message or whether the 
call is an autodialed call resulting in a live conversation, the 
Commission proposes to restrict the number of covered calls to three 
per month, per delinquency only after delinquency. The Commission 
believes three calls per month provides an adequate opportunity to 
convey necessary information about the debt, repayment, and other 
matters the caller wishes to communicate without the consent of the 
called party and, in any case, affords callers an opportunity to obtain 
the debtor's consent to make additional calls beyond any limit the 
Commission adopts. The Commission proposes that the limit on the number 
of calls should be for any initiated calls, even if unanswered by a 
person, because many consumers may choose not to answer calls from 
unfamiliar numbers. These limits would apply to autodialed, 
prerecorded, or artificial voice calls to wireless numbers. In the case 
of autodialed calls, the limits apply whether they use a prerecorded or 
artificial voice or instead attempt to connect the called debtor with a 
live agent. The Commission sees potential value, however, in debtors 
hearing from a live agent to discuss the debt and potential servicing 
options and seeks comment on whether and how it should encourage that 
approach. The Commission seeks comment on these proposals. The 
Commission also seeks comment on the maximum duration of a voice call, 
and whether the Commission should adopt different duration limits for 
prerecorded- or artificial-voice calls than for autodialed calls with a 
live caller. Should there be a limit on the length of text messages? 
What should that limit be? The Commission also seeks comment on how to 
count debt servicing calls for purposes of the proposed three-call 
limit per month or any other limit on the number of calls.
    13. Should the Commission look to other standards or precedents for 
guidance? For example, should the Commission restrict calls to the 
hours of 8:00 a.m. to 9:00 p.m. (local time at the called party's 
location), similar to the rule that now applies to telemarketing calls? 
Should the Commission consider any limits on the number of calls 
pursuant to the Fair Debt Collection Practices Act if it adopts such 
limits here? How should the Commission take account of any limits 
adopted by the Consumer Financial Protection Bureau? Are there other 
standards or precedents, including restrictions that might exist under 
either federal or state debt collection laws, the Commission should 
consider? Are calls covered by the Budget Act exception subject to 
other laws and rules that more generally govern debt collection and, if 
so, how should the Commission harmonize any overlapping requirements?
    14. Consumer ability to stop covered calls. The Commission has 
determined that an ability to stop unwanted calls is critical to the 
TCPA's goal of consumer protection. That right may be more important 
here, where consumers need not consent to the calls in advance in order 
for a caller to make the calls. The Commission proposes, therefore, 
that consumers should have a right to stop such calls at any point the 
consumer wishes. The Commission seeks comment on its proposal. For 
example, does the amended law allow the Commission to require that a 
caller limit covered calls to the first of (1) a specific number 
(perhaps within a set period of time) or (2) until the consumer says 
``stop''? The Commission proposes that stop-calling requests should 
apply to a subsequent collector of the same debt. The Commission seeks 
comment on this proposal and how it might ensure that

[[Page 31892]]

a request to stop such calls be honored if later transferred to other 
collectors. Should the Commission require that callers making covered 
calls record any request to stop calling and provide a record of such a 
request to subsequent callers along with other information about the 
debt?
    15. The Commission also proposes, so that consumers fully 
understand any right it adopts to stop calls, to require callers to 
inform debtors of their right to make such a request. The Commission 
seeks comment on this proposal and on when and how callers should 
provide such notice. For example, should the permissible ways to opt 
out of further calls under the TCPA--i.e., any reasonable method, 
including orally or in response to a text message--apply here? Should 
the Commission require callers making artificial- or prerecorded-voice 
calls to include an automated, interactive voice- and/or key press-
activated opt-out mechanism for stopping future excepted calls?

C. Other Implementation Issues

    16. Covered Calls to Residential Lines. The Commission noted that 
under its current rules, artificial- or prerecorded-voice calls to 
residential lines that are made for the purpose of collecting a debt 
are currently not subject to the prior express consent requirement. 
Although the TCPA allows for broad application of the prior express 
consent requirement to all non-emergency artificial- and prerecorded-
voice calls to residential lines, the Commission has exercised its 
statutory exemption authority so as to apply the consent requirement 
only to calls that include or introduce an advertisement or constitute 
telemarketing. The Commission has also found that debt collection calls 
do not constitute telemarketing. Accordingly, the consent exception 
under the Budget Act currently does not appear to affect whether 
artificial- or prerecorded-voice calls to residential lines for the 
purpose of collecting a covered debt require prior express consent.
    17. The Commission nonetheless proposes to revise its rule 
concerning artificial- or prerecorded-voice calls to residential lines 
to reflect the exception contained in the Budget Act. The Commission 
does not believe, however, that it is necessary at the present time to 
determine the exact contours of the statutory exception for covered 
calls to residential lines, including, for example, determining the 
specific impact of the somewhat different language in the Budget Act 
amendments with regard to covered calls to residential lines and to 
wireless numbers. The Commission seeks comment on these views, and on 
whether it should consider any additional issues concerning covered 
calls. For example, should any limits on the number and duration of 
covered calls also apply to covered calls to residential lines, even 
though such calls would not have required prior express consent even 
before the Budget Act amendments to the TCPA?
    18. Restrictions on Calls to Cellular Telephone Service. Congress 
authorized the Commission to ``restrict or limit the number and 
duration of calls made to a telephone number assigned to a cellular 
telephone service to collect a debt owed to or guaranteed by the United 
States.'' Yet, the amendment to the TCPA, authorizing calls made to 
collect a debt owed to or guaranteed by the United States, is broader, 
applying to ``any telephone number assigned to a paging service, 
cellular telephone service, specialized mobile radio service, or other 
radio common carrier service, or any service for which the called party 
is charged for the call.'' Considering the identical language in the 
prior delegation of authority in 47 U.S.C. 227(b)(2)(C), the Commission 
proposes that Congress delegated the Commission authority to limit the 
number and duration of all calls made pursuant to the debt collection 
exception in 47 U.S.C. 227(b)(1)(A)(iii).
    19. Congress, in granting the Commission authority to limit the 
number and duration of calls, used identical language to the language 
it used in the separate delegation of authority in 47 U.S.C. 
227(b)(2)(C). The identical language in these two delegations of 
authority indicates that Congress intended the two provisions to apply 
to the same services.
    20. The Commission has interpreted 47 U.S.C. 227(b)(2)(C) to apply 
to all services mentioned in 47 U.S.C. 227(b)(1)(A)(iii). In so doing, 
it has interpreted ``cellular telephone service'' by asking whether 
services are functionally equivalent from the consumer perspective 
rather than on technical or regulatory differences, such as which 
spectrum block is used to provide the service. This avoids, for 
example, consumers receiving wireless voice service from being treated 
differently depending on which spectrum block their carriers use and 
callers having to determine which spectrum block is used for a 
particular consumer's service in order to know which requirements 
apply.
    21. Applying the canon of statutory construction that Congress 
knows the law, including relevant agency interpretations, at the time 
it adopts a statute, the Commission presumes that Congress knew of the 
Commission's interpretation of this key language. Congress used the 
same language in the recent delegation of authority without taking any 
action to alter the Commission's interpretation of identical language 
elsewhere in the same statute. The Commission therefore proposes that 
the authority delegated to it in the new 47 U.S.C. 227(b)(2)(H) added 
by the Budget Act applies to all services to which amended 47 U.S.C. 
227(b)(1)(A)(iii) applies. The Commission seeks comment on this 
proposal.
    22. Application of Other TCPA Restrictions to Covered Calls. The 
Commission believes the most reasonable interpretation is that calls 
must be in compliance with all other legal requirements--for example, 
the requirement that artificial- or prerecorded-voice calls contain 
certain identifying information--in order for the Budget Act consent 
exception to apply. The Commission seeks comment on this proposal, as 
well as on whether and how compliance with other legal requirements 
should affect the application of the Budget Act exception.

Initial Regulatory Flexibility Analysis

    23. As required by the Regulatory Flexibility Act of 1980, as 
amended, (RFA), the Commission has prepared this Initial Regulatory 
Flexibility Analysis (IRFA) of the possible significant economic impact 
on a substantial number of small entities by the policies and rules 
proposed in the NPRM. Written public comments are requested on the 
IRFA. Comments must be identified as responses to the IRFA and must be 
filed by the deadlines for comments on the NPRM provided on the first 
page of this document. The Commission will send a copy of the NPRM, 
including the IRFA, to the Chief Counsel for Advocacy of the Small 
Business Administration.

A. Need for, and Objectives of, the Proposed Rules

    24. The NPRM contains proposals regarding how to modify the 
Commission's rules to align them with the amended statutory language of 
the TCPA enacted by Congress in the Bipartisan Budget Act of 2015 
(Budget Act). The NPRM seeks comment generally on all entities that 
make autodialed or prerecorded- or artificial- voice calls to collect 
debts owed to or guaranteed by the United States. The NPRM seeks 
comment on covered calls. Specifically, the Commission seeks comment on 
the parameters of the phrase ``solely to collect a debt.'' The 
Commission seeks comment on whether debt servicing calls are covered. 
The

[[Page 31893]]

Commission seeks comment on the meaning of the phrase ``owed to or 
guaranteed by the United States,'' including the applicability of the 
exception to debt insured by or purchased from the United States. The 
Commission seeks comment on the person or persons to whom covered calls 
can be made and it seeks comment on who is entitled to make calls under 
the exception Congress created in the Budget Act.
    25. The NPRM seeks comment on limits on the number and duration of 
covered calls. Specifically, the Commission seeks comment on the need 
for restrictions on covered calls, including types of number and 
duration restrictions. The Commission seeks comment on the nature of 
the restrictions, if adopted, including looking to other standards or 
precedents for guidance. The Commission seeks comment on the consumer's 
ability to stop covered calls.
    26. The NPRM seeks comment on other implementation issues. 
Specifically, the Commission seeks comment on the applicably of the 
exception to residential lines. The Commission seeks comment on whether 
the authority delegated to it in the new 47 U.S.C. 227(b)(2)(H) added 
by the Budget Act applies to all services to which amended 47 U.S.C. 
227(b)(1)(A)(iii) applies. The Commission seeks comment on the 
application of other TCPA restrictions to covered calls. The 
Commission's underlying concern is to protect small businesses by 
giving them ample opportunity to comment on the proposed rules under 
consideration.
    27. The Commission's rules restricting the use of automated 
telephone dialing equipment and artificial or prerecorded voice to call 
wireless numbers apply to a wide range of entities, including all 
entities that make such calls or texts to wireless telephone numbers to 
collect debts owed to or guaranteed by the federal government. Thus, 
the Commission expects that the proposals in this proceeding could have 
a significant economic impact on a substantial number of small entities 
in a wide range of categories.

B. Legal Basis

    28. The proposed and anticipated rules are authorized under 
sections 1-4, 201(b), 227, and 303(r) of the Communications Act of 
1934, as amended, 47 U.S.C. 151-154, 201(b), 227, 303(r); and the 
Bipartisan Budget Act of 2015, Public Law 114-74, 129 Stat. 584.

C. Description and Estimate of the Number of Small Entities to Which 
the Proposed Rules Will Apply

    29. The RFA directs agencies to provide a description of, and where 
feasible, an estimate of the number of small entities that will be 
affected by the proposed rules, if adopted. The RFA generally defines 
the term ``small entity'' as having the same meaning as the terms 
``small business,'' ``small organization,'' and ``small governmental 
jurisdiction.'' In addition, the term ``small business'' has the same 
meaning as the term ``small business concern'' under the Small Business 
Act. Under the Small Business Act, a ``small business concern'' is one 
that: (1) Is independently owned and operated; (2) is not dominant in 
its field of operation; and (3) meets any additional criteria 
established by the Small Business Administration (SBA).
    30. Collection Agencies. This industry comprises establishments 
primarily engaged in collecting payments for claims and remitting 
payments collected to their clients. The SBA has determined that 
Collection Agencies with $15 million or less in annual receipts qualify 
as small businesses. Census data for 2007 indicate that 4,532 
establishments in this category operated throughout that year. Of 
those, 4,288 establishments operated with annual receipts of less than 
$10 million. The Commission concludes that a substantial majority of 
businesses in this category are small under the SBA standard.
    31. Telemarketing Bureaus and Other Contact Centers. This U.S. 
industry comprises establishments primarily engaged in operating call 
centers that initiate or receive communications for others--via 
telephone, facsimile, email, or other communication modes--for purposes 
such as (1) promoting clients products or services, (2) taking orders 
for clients, (3) soliciting contributions for a client, and (4) 
providing information or assistance regarding a client's products or 
services. The SBA has determined that Telemarketing Bureaus and other 
Contact Centers with $15 million or less in annual receipts qualify as 
small businesses. U.S. Census data for 2007 indicate that 2,100 firms 
in this category operated throughout that year. Of those, 1,909 
operated with annual receipts of less than $10 million. The Commission 
concludes that a substantial majority of businesses in this category 
are small under the SBA standard.
    32. Commercial Banks and Savings Institutions. Commercial banks are 
establishments primarily engaged in accepting demand and other deposits 
and making commercial, industrial, and consumer loans. Commercial banks 
and branches of foreign banks are included in this industry. Savings 
institutions are establishments primarily engaged in accepting time 
deposits, making mortgage and real estate loans, and investing in high-
grade securities. Savings and loan associations and savings banks are 
included in this industry. The SBA has determined that Commercial Banks 
and Savings Institutions with $500 million or less in assets qualify as 
small businesses. December 2013 Call Report data compiled by SNL 
Financial indicate that 6,877 firms in this category operated 
throughout that year. Of those, 5,533 qualify as small entities. Based 
on this data, the Commission concludes that a substantial number of 
businesses in this category are small under the SBA standard.
    33. Credit Unions. This industry comprises establishments primarily 
engaged in accepting members' share deposits in cooperatives that are 
organized to offer consumer loans to their members. The SBA has 
determined that Credit Unions with $500 million or less in assets 
qualify as small businesses. The December 2013 National Credit Union 
Administration Call Report data indicate that 6,687 firms in this 
category operated throughout that year. Of those, 6,252 qualify as 
small entities. Based on this data, the Commission concludes that a 
substantial number of businesses in this category are small under the 
SBA standard.
    34. Other Depository Credit Intermediation. This industry comprises 
establishments primarily engaged in accepting deposits and lending 
funds (except commercial banking, savings institutions, and credit 
unions). Establishments known as industrial banks or Morris Plans and 
primarily engaged in accepting deposits, and private banks (i.e., 
unincorporated banks) are included in this industry. The SBA has 
determined that Other Depository Credit Intermediation entities with 
$500 million or less in assets qualify as small businesses. Census data 
for 2007 indicate that 29 firms in this category operated throughout 
that year. Due to the nature of this category, the Commission concludes 
that a substantial number of businesses in this category are small 
under the SBA standard.
    35. Sales Financing. This industry comprises establishments 
primarily engaged in sales financing or sales financing in combination 
with leasing. Sales financing establishments are

[[Page 31894]]

primarily engaged in lending money for the purpose of providing 
collateralized goods through a contractual installment sales agreement, 
either directly from or through arrangements with dealers. The SBA has 
determined that Sales Financing entities with $7 million or less in 
annual receipts qualify as small businesses. Census data for 2007 
indicate that 2,267 firms in this category operated throughout that 
year. Of those, 1,806 operated with annual receipts of less than $5 
million. The Commission concludes that a substantial majority of 
businesses in this category are small under the SBA standard.
    36. Consumer Lending. This U.S. industry comprises establishments 
primarily engaged in making unsecured cash loans to consumers. The SBA 
has determined that Consumer Lending entities with $7 million or less 
in annual receipts qualify as small businesses. Census data for 2007 
indicate that 3,234 firms in this category operated throughout that 
year. Of those, 2,969 operated with annual receipts of less than $5 
million. The Commission concludes that a substantial majority of 
businesses in this category are small under the SBA standard.
    37. Real Estate Credit. This U.S. industry comprises establishments 
primarily engaged in lending funds with real estate as collateral. The 
SBA has determined that Real Estate Credit entities with $7 million or 
less in annual receipts qualify as small businesses. Census data for 
2007 indicate that 5,791 firms in this category operated throughout 
that year. Of those, 5,036 operated with annual receipts of less than 
$5 million. The Commission concludes that a substantial majority of 
businesses in this category are small under the SBA standard.
    38. International Trade Financing. This U.S. industry comprises 
establishments primarily engaged in providing one or more of the 
following: (1) working capital funds to U.S. exporters; (2) lending 
funds to foreign buyers of U.S. goods; and/or (3) lending funds to 
domestic buyers of imported goods. The SBA has determined that 
International Trade Financing entities with $38.5 million or less in 
annual receipts qualify as small businesses. Census data for 2007 
indicate that 125 firms in this category operated throughout that year. 
Of those, 118 operated with annual receipts of less than $25 million. 
The Commission concludes that a substantial majority of businesses in 
this category are small under the SBA standard.
    39. Secondary Market Financing. This U.S. industry comprises 
establishments primarily engaged in buying, pooling, and repackaging 
loans for sale to others on the secondary market. The SBA has 
determined that Secondary Market Financing entities with $7 million or 
less in annual receipts qualify as small businesses. Census data for 
2007 indicate that 105 firms in this category operated throughout that 
year. Of those, 74 operated with annual receipts of less than $5 
million. The Commission concludes that a substantial majority of 
businesses in this category are small under the SBA standard.
    40. All Other Nondepository Credit Intermediation. This U.S. 
industry comprises establishments primarily engaged in providing 
nondepository credit (except credit card issuing, sales financing, 
consumer lending, real estate credit, international trade financing, 
and secondary market financing). Examples of types of lending in this 
industry are: short-term inventory credit, agricultural lending (except 
real estate and sales financing), and consumer cash lending secured by 
personal property. The SBA has determined that All Other Nondepository 
Credit Intermediation entities with $38.5 million or less in annual 
receipts qualify as small businesses. Census data for 2007 indicate 
that 4,590 firms in this category operated throughout that year. Of 
those, 4,494 operated with annual receipts of less than $25 million. 
The Commission concludes that a substantial majority of businesses in 
this category are small under the SBA standard.
    41. Mortgage and Nonmortgage Loan Brokers. This industry comprises 
establishments primarily engaged in arranging loans by bringing 
borrowers and lenders together on a commission or fee basis. The SBA 
has determined that Mortgage and Nonmortgage Loan Brokers with $7 
million or less in annual receipts qualify as small businesses. Census 
data for 2007 indicate that 17,702 firms in this category operated 
throughout that year. Of those, 17,393 operated with annual receipts of 
less than $5 million. The Commission concludes that a substantial 
majority of businesses in this category are small under the SBA 
standard.
    42. Other Activities Related to Credit Intermediation. This 
industry comprises establishments primarily engaged in facilitating 
credit intermediation (except mortgage and loan brokerage; and 
financial transactions processing, reserve, and clearinghouse 
activities). The SBA has determined that Other Activities Related to 
Credit Intermediation entities with $7 million or less in annual 
receipts qualify as small businesses. Census data for 2007 indicate 
that 5,494 firms in this category operated throughout that year. Of 
those, 5,277 operated with annual receipts of less than $5 million. The 
Commission concludes that a substantial majority of businesses in this 
category are small under the SBA standard.

D. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements

    43. Under the current rules, all artificial or prerecorded voice 
calls to a wireless telephone number are prohibited without prior 
express consent. The NPRM contains proposals regarding how to modify 
the Commission's rules to align them with the amended statutory 
language of the TCPA enacted by Congress in the Budget Act, creating an 
exception that allows calls to wireless telephones made solely pursuant 
to the collection of a debt owed to or guaranteed by the United States.
    44. The proposals under consideration could result in additional 
costs to regulated entities. If the Commission imposes restrictions on 
the number and duration of calls to wireless numbers as proposed for 
comment in the NPRM, then calling entities might incur some additional 
costs in tracking that information. For example, calling entities might 
need to modify software, develop tracking procedures, and train staff 
in order to keep within the restrictions on the number and duration of 
calls to wireless numbers. However, some calling entities may already 
track calls and call durations, and therefore, no additional compliance 
efforts would be required. Calling entities may also be relieved of 
tracking the consent of the called party, which could offset any new 
burdens.
    45. If the Commission determines that a called party may stop 
future calls concerning collection of a debt owed to or guaranteed by 
the United States as proposed for comment in the NPRM, then calling 
entities might incur some additional cost in maintaining do-not-call 
lists for wireless numbers. Such costs could include software 
modification, development of procedures, and training. However, some 
calling entities may already have procedures in place for maintaining 
do-not-call lists, and therefore, no additional compliance efforts will 
be required.

E. Steps Taken To Minimize Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered

    46. The RFA requires an agency to describe any significant 
alternatives that it has considered in reaching its proposed approach, 
which may include

[[Page 31895]]

the following four alternatives (among others): (1) The establishment 
of differing compliance or reporting requirements or timetables that 
take into account the resources available to small entities; (2) the 
clarification, consolidation, or simplification of compliance or 
reporting requirements under the rule for small entities; (3) the use 
of performance, rather than design, standards; and (4) an exemption 
from coverage of the rule, or any part thereof, for small entities.
    47. The Commission believes that any economic burden these proposed 
rules may have on carriers is outweighed by the benefits to consumers. 
The compliance costs identified in Section D are small. The Commission 
seeks comment on how to minimize the economic impact of these 
proposals. For instance, the Commission seeks comment on the specific 
costs of the measures discussed in the NPRM and ways to mitigate any 
implementation costs. The Commission also seeks comment on the overall 
economic impact these proposed rules may have because it seeks to 
minimize all costs associated with these proposed rules. Finally, the 
Commission seeks comment on whether to consider the size of the calling 
entity or the type of debt being collected in determining the 
appropriate timeframes for implementation.

F. Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Rules

    48. None.

Ordering Clauses

    49. Pursuant to the authority contained in sections 1-4, 227, and 
303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 151-
154, 227, 303(r); and the Telephone Consumer Protection Act as amended 
by the Bipartisan Budget Act of 2015, Public Law 114-74, 129 Stat. 584, 
document FCC 16-57 is adopted.
    50. The Commission's Consumer and Governmental Affairs Bureau, 
Reference Information Center, shall send a copy of document FCC 16-57, 
including the Initial Regulatory Flexibility Analysis, to the Chief 
Counsel for Advocacy of the Small Business Administration.

List of Subjects in 47 CFR Part 64

    Claims, Communications common carriers, Credit, Reporting and 
recordkeeping requirements, Telecommunications, Telephone.

Federal Communications Commission.
Gloria J. Miles,
Federal Register Liaison Officer, Office of the Secretary.

    For the reasons discussed in the preamble, the Federal 
Communications Commission proposes to amend 47 CFR part 64 as follows:

PART 64--MISCELLANEOUS RULES RELATING TO COMMON CARRIERS

0
1. The authority citation for part 64 is revised to read as follows:

    Authority:  47 U.S.C. 154, 254(k); 403(b)(2)(B), (c), Pub. L. 
104-104, 110 Stat. 56. Interpret or apply 47 U.S.C. 201, 218, 222, 
225, 226, 227, 228, 254(k), 616, 620, the Middle Class Tax Relief 
and Job Creation Act of 2012, Pub. L. 112-96, and Sec. 301, Pub. L. 
114-74, 129 Stat. 584 (47 U.S.C. 227) unless otherwise noted.

0
2. Section 64.1200 is amended by revising paragraphs (a)(1)(iii) and 
(a)(3)(v), and adding paragraph (a)(3)(vi) to read as follows:


Sec.  64.1200  Delivery restrictions.

    (a) * * *
    (1) * * *
    (iii) To any telephone number assigned to a paging service, 
cellular telephone service, specialized mobile radio service, or other 
radio common carrier service, or any service for which the called party 
is charged for the call, unless such call is made solely to collect a 
debt owed to or guaranteed by the United States.
* * * * *
    (3) * * *
    (v) Delivers a ``health care'' message made by, or on behalf of, a 
``covered entity'' or its ``business associate,'' as those terms are 
defined in the HIPAA Privacy Rule, 15 CFR 160.103;
    (vi) Is made solely pursuant to the collection of a debt owed to or 
guaranteed by the United States.
* * * * *
[FR Doc. 2016-12025 Filed 5-19-16; 8:45 am]
 BILLING CODE 6712-01-P