Telemarketing Sales Rule Fees, 43273-43281 [05-14905]
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Federal Register / Vol. 70, No. 143 / Wednesday, July 27, 2005 / Rules and Regulations
each crop year apply to all assessable
almonds handled during such crop year;
(2) the Board needs to have sufficient
funds to pay its expenses which are
incurred on a continuous basis; (3)
handlers are aware of this action which
was unanimously recommended by the
Board at a public meeting and is similar
to other assessment rate actions issued
in past years; and (4) a 10-day comment
period was provided for in the proposed
rule.
List of Subjects in 7 CFR Part 981
Almonds, Marketing agreements,
Reporting and recordkeeping
requirements.
For the reasons set forth in the
preamble, 7 CFR part 981 is amended as
follows:
I
PART 981—ALMONDS GROWN IN
CALIFORNIA
1. The authority citation for 7 CFR part
981 continues to read as follows:
I
Authority: 7 U.S.C. 601–674.
2. Section 981.343 is revised to read as
follows:
I
§ 981.343
Assessment rate.
On and after August 1, 2005, an
assessment rate of $0.030 per pound is
established for California almonds. Of
the $0.030 assessment rate, 60 percent
per assessable pound is available for
handler credit-back.
Dated: July 21, 2005.
Kenneth C. Clayton,
Acting Administrator, Agricultural Marketing
Service.
[FR Doc. 05–14770 Filed 7–26–05; 8:45 am]
BILLING CODE 3410–02–P
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 23
[Docket No. CE229, Special Condition 23–
168–SC]
Special Conditions; Duncan Aviation
Inc., EFIS on the Raytheon 300 King
Air; Protection of Systems for High
Intensity Radiated Fields (HIRF)
Federal Aviation
Administration (FAA), DOT.
ACTION: Final special conditions; request
for comments; correction.
AGENCY:
SUMMARY: The FAA published a
document on June 22, 2005 concerning
final special conditions for Duncan
Aviation Inc., on the Raytheon Model
300 King Air. There was an error in the
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preamble of the special conditions in
the reference to the docket number. The
correct document number appears in the
addresses section in one place; however,
the docket number is incorrect in the
heading, in one other location in the
address, and in the ‘‘Comments Invited’’
section. This document contains a
correction to the docket number.
DATES: The effective date of these
special conditions is June 15, 2005.
Comments must be received on or
before July 22, 2005.
ADDRESSES: Comments may be mailed
in duplicate to: Federal Aviation
Administration, Regional Counsel,
ACE–7, Attention: Rules Docket Clerk,
Docket No. CE229, Room 506, 901
Locust, Kansas City, Missouri 64106. All
comments must be marked: Docket No.
CE229. Comments may be inspected in
the Rules Docket weekdays, except
Federal holidays, between 7:30 a.m. and
4 p.m.
FOR FURTHER INFORMATION CONTACT: Wes
Ryan, Aerospace Engineer, Standards
Office (ACE–110), Small Airplane
Directorate, Aircraft Certification
Service, Federal Aviation
Administration, 901 Locust, Room 301,
Kansas City, Missouri 64106; telephone
(816) 329–4127.
SUPPLEMENTARY INFORMATION:
Need for Correction
The FAA published a document on
June 22, 2005 (70 FR 35985) that issued
final special conditions with a request
for comments. In the document under
the heading, in the ‘‘Addresses’’ section,
and in the ‘‘Comments Invited’’ section,
the docket number ‘‘229’’ appears. The
correct docket number is ‘‘CE229.’’ This
document corrects that error.
Correction of Publication
Accordingly, the preamble of the
special conditions is revised to remove
the docket number ‘‘229’’ and to replace
it with ‘‘CE229’’ wherever it appears.
Comments Invited
Interested persons are invited to
submit such written data, views, or
arguments, as they may desire.
Communications should identify the
regulatory docket or notice number and
be submitted in duplicate to the address
specified above. All communications
received on or before the closing date
for comments will be considered by the
Administrator. The special conditions
may be changed in light of the
comments received. All comments
received will be available in the Rules
Docket for examination by interested
persons, both before and after the
closing date for comments. A report
PO 00000
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43273
summarizing each substantive public
contact with FAA personnel concerning
this rulemaking will be filed in the
docket. Commenters wishing the FAA to
acknowledge receipt of their comments
submitted in response to this notice
must include a self-addressed, stamped
postcard on which the following
statement is made: ‘‘Comments to
Docket No. CE229.’’ The postcard will
be date stamped and returned to the
commenter.
Issued in Kansas City, Missouri on July 14,
2005.
John Colomy,
Acting Manager, Small Airplane Directorate,
Aircraft Certification Service.
[FR Doc. 05–14763 Filed 7–26–05; 8:45 am]
BILLING CODE 4910–13–P
FEDERAL TRADE COMMISSION
16 CFR Part 310
RIN 3084–0098
Telemarketing Sales Rule Fees
Federal Trade Commission.
Final rule.
AGENCY:
ACTION:
SUMMARY: The Federal Trade
Commission (the ‘‘Commission’’ or
‘‘FTC’’) is issuing this Final Rule to
amend the FTC’s Telemarketing Sales
Rule (‘‘TSR’’) by revising the fees
charged to entities accessing the
National Do Not Call Registry (‘‘the
Registry’’).
Effective date: The amendment
to § 310.8 (‘‘the Fee Rule’’) will become
effective September 1, 2005.
ADDRESSES: Requests for copies of this
Final Fee Rule should be sent to: Public
Reference Branch, Federal Trade
Commission, Room 130, 600
Pennsylvania Avenue, NW.,
Washington, DC 20580. The complete
public record of this proceeding is also
available at that address, and on the
Internet at: https://www.ftc.gov/bcp/
rulemaking/tsr/tsrrulemaking/
index.htm.
DATES:
FOR FURTHER INFORMATION CONTACT:
David B. Robbins, (202) 326–3747,
Division of Planning & Information,
Bureau of Consumer Protection, Federal
Trade Commission, 600 Pennsylvania
Avenue, NW., Washington, DC 20580.
SUPPLEMENTARY INFORMATION: The
amended rule increases the annual fee
for each area code of data to $56.00 per
area code, or $28.00 per area code of
data during the second six months of an
entity’s annual subscription period. The
maximum amount that would be
charged to any single entity for
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Federal Register / Vol. 70, No. 143 / Wednesday, July 27, 2005 / Rules and Regulations
accessing 280 area codes of data or more
is increased to $15,400.00. In addition,
the amended rule retains the provisions
regarding free access by ‘‘exempt’’
organizations, as well as free access to
the first five area codes of data by all
entities.
Statement of Basis and Purpose
I. Background
On December 18, 2002, the
Commission issued final amendments to
the TSR, which, inter alia, established
the Registry, permitting consumers to
register, via either a toll-free telephone
number or the Internet, their preference
not to receive certain telemarketing calls
(‘‘Amended TSR’’).1 Under the
Amended TSR, most telemarketers are
required to refrain from calling
consumers who have placed their
numbers on the Registry.2 Telemarketers
must periodically access the Registry to
remove from their telemarketing lists
the telephone numbers of those
consumers who have registered.3
Shortly after issuance of the Amended
TSR, Congress passed the Do-Not-Call
Implementation Act (‘‘the
Implementation Act’’).4 The
Implementation Act gave the
Commission the specific authority to
‘‘promulgate regulations establishing
fees sufficient to implement and enforce
the provisions relating to the ‘‘do-notcall’’ registry of the [TSR].’’ 5 The
Implementation Act also provides that
‘‘[n]o amounts shall be collected as fees
pursuant to this section for such fiscal
years except to the extent provided in
advance in appropriations Acts. Such
amounts shall be available * * * to
offset the costs of activities and services
related to the implementation and
enforcement of the [TSR], and other
activities resulting from such
implementation and enforcement.’’ 6
On July 29, 2003, pursuant to the
Implementation Act and the
Consolidated Appropriations
Resolution, 2003,7 the Commission
issued a Final Rule further amending
the TSR to set fee amounts for entities
accessing the National Do Not Call
Registry (‘‘the 2003 Fee Rule’’).8 Those
1 See 68 FR 4580 (Jan. 29, 2003) (codified at 16
CFR 310).
2 16 CFR 310.4(b)(1)(iii)(B).
3 16 CFR 310.4(b)(3)(iv). The TSR requires
telemarketers to access the Registry at least once
every thirty-one days, effective January 1, 2005. See
69 FR 16368 (March 29, 2004).
4 Do-Not-Call Implementation Act, Pub. L. 108–
10, 117 Stat. 557 (2003).
5 Id. at section 2.
6 Id.
7 Consolidated Appropriations Resolution, 2003,
Pub. L. 108–7, 117 Stat. 11 (2003).
8 68 FR 45134 (July 31, 2003).
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fees were based on the FTC’s best
estimate of the number of paying
entities that would access the Registry,
and the need to raise $18.1 million in
Fiscal Year 2003 to cover the costs
associated with the implementation and
enforcement of the ‘‘do-not-call’’
provisions of the Amended TSR. The
Commission determined that the fee
structure would be based on the number
of different area codes of data that an
entity wished to access annually. The
2003 Fee Rule established an annual fee
of $25 for each area code of data
requested from the Registry, with the
first five area codes of data provided at
no cost.9 The maximum annual fee was
capped at $7,375 for entities accessing
300 area codes of data or more.10
On July 30, 2004, pursuant to the
Implementation Act and the
Consolidated Appropriations Act, 2004
(‘‘the 2004 Appropriations Act’’),11 the
Commission issued a revised Final Rule
further amending the TSR, which
increased fees on entities accessing the
National Do Not Call Registry (’’the 2004
Fee Rule’’).12 Those fees were based on
the FTC’s experience through June 1,
2004, its best estimate of the number of
paying entities that would access the
Registry, and the need to raise $18
million in Fiscal Year 2004 to cover the
costs associated with the
implementation and enforcement of the
‘‘do-not-call’’ provisions of the
Amended TSR. The Commission
determined that the fee structure would
continue to be based on the number of
different area codes of data that an
entity wished to access annually. The
2004 Fee Rule established an annual fee
of $40 for each area code of data
requested from the Registry, with the
first five area codes of data provided at
no cost.13 The maximum annual fee was
9 Once an entity requested access to area codes of
data in the Registry, it could access those area codes
as often as it deemed appropriate for one year
(defined as its ‘‘annual period’’). If, during the
course of its annual period, an entity needed to
access data from more area codes than those
initially selected, it would be required to pay for
access to those additional area codes. For purposes
of these additional payments, the annual period
was divided into two semi-annual periods of six
months each. Obtaining additional data from the
Registry during the first semi-annual, six month
period required a payment of $25 for each new area
code. During the second semi-annual, six month
period, the charge for obtaining data from each new
area code requested during that six-month period
was $15. These payments for additional data would
provide the entity access to those additional area
codes of data for the remainder of its annual term.
10 68 FR at 45141.
11 Consolidated Appropriations Act, 2004, Pub. L.
108–199, 118 Stat. 3 (2004).
12 69 FR 45580 (July 30, 2004).
13 Id. at 45584. The 2004 Fee Rule has the same
fee structure as the 2003 Fee Rule; however, fees
were increased from $25 to $40 per area code, from
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capped at $11,000 for entities accessing
280 area codes of data or more.14
In the Consolidated Appropriations
Act, 2005 (‘‘the 2005 Appropriations
Act’’),15 Congress directed the FTC to
collect offsetting fees in the amount of
$21.9 million in Fiscal Year 2005 to
implement and enforce the TSR.16
Pursuant to the 2005 Appropriations
Act and the Implementation Act, as well
as the Telemarketing Fraud and Abuse
Prevention Act (‘‘the Telemarketing
Act’’),17 the FTC issued a Notice of
Proposed Rulemaking to amend the fees
charged to entities accessing the
Registry (‘‘the 2005 Fee Rule NPR’’).18
In the 2005 Fee Rule NPR, the
Commission proposed revising the fees
for access to the Registry in order to
raise $21.9 million to offset costs the
FTC expects to incur in this Fiscal Year
for purposes related to implementing
and enforcing the ‘‘do-not-call’’
provisions of the Amended TSR. Based
on the number of entities that had
accessed the Registry through the end of
February 2005, the Commission
proposed revising the fees to charge $56
annually for each area code of data
requested from the Registry, with the
first five area codes of data provided at
no cost. As a consequence of the
increase in the per-area-code charge, the
maximum annual fee would increase to
$15,400 for entities accessing 280 area
codes of data or more.19
In the 2005 Fee Rule NPR, the
Commission sought comment on the
following issues relating to the proposed
amendment:
(1) Whether entities accessing the
Registry should continue to obtain the
first five area codes of data for free;20
$15 to $20 per area code for the second semi-annual
six month period, and from a maximum of $7,375
to $11,000.
14 Id.
15 Consolidated Appropriations Act, 2005, Pub. L.
108–447, 118 Stat. 2809 (2004).
16 Id. at Division B, Title V.
17 15 U.S.C. 6101–08.
18 70 FR 20848 (April 22, 2005).
19 Id. at 20852.
20 Id. at 20850. The Commission was particularly
interested in comments addressing (a) whether
there are alternatives to providing free access to the
first five area codes of data that would better
balance the burdens faced by small businesses with
the need to raise appropriate fees to fund the
Registry in a more equitable manner; (b) the
propriety of changing or eliminating the number of
area codes for which there is no charge, and the
effect, if any, on entities that access the Registry,
including small businesses; (c) the nature and type
of entities that are accessing five or fewer area codes
at no cost, and whether these entities are primarily
the types of businesses that the Regulatory
Flexibility Act requires the FTC to consider when
adopting regulations, and whether such entities
need access to one, two, three, four, or five area
codes; and (d) whether any changes in the number
of free area codes would affect an entity’s business
practices, including whether an entity would
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(2) Whether ‘‘exempt’’ organizations
should continue to be provided with
free access to the Registry; 21
(3) The number and type of small
business entities that may be subject to
the revised fees; 22 and
(4) Whether there are any significant
alternatives that would further
minimize the impact of the rule on
small entities, consistent with the
objectives of the Telemarketing Act, the
2005 Appropriations Act, the
Implementation Act, and the Regulatory
Flexibility Act.23
In response to the 2005 Fee Rule NPR,
the Commission received nine
comments.24 The amended rule,
comments, and the basis for the
Commission’s decision on the various
recommendations are analyzed in detail
below.
II. The Amended Rule
Based on the 2005 Appropriations
Act, the Implementation Act, and the
Telemarketing Act, as well as its review
of the record in this proceeding, and on
its law enforcement experience in this
area, the Commission has decided to
modify the fees required under the TSR
Fee Rule. Under the amended rule
provisions adopted herein, the annual
fee for accessing the Registry will
increase from $40.00 per area code to
$56.00 per area code, and from a
maximum of $11,000.00 to $15,400.00
for access to 280 area codes of data or
more. The fee for accessing area codes
during the second six months of an
entity’s annual subscription period also
choose not to access an area code if it had to pay
for that area code or whether the entity would pay
to continue accessing that area code.
21 Id. at 20851. The 2005 Fee Rule NPR, the 2003
Fee Rule, and the 2004 Fee Rule stated that ‘‘there
shall be no charge to any person engaging in or
causing others to engage in outbound telephone
calls to consumers and who is accessing the
National Do Not Call Registry without being
required to under this Rule, 47 CFR 64.1200, or any
other federal law.’’ 16 CFR 310.8(c). Such ‘‘exempt’’
organizations include entities that engage in
outbound telephone calls to consumers to induce
charitable contributions, for political fund raising,
or to conduct surveys. They also include entities
engaged solely in calls to persons with whom they
have an established business relationship or from
whom they have obtained express written
agreement to call, pursuant to 16 CFR
310.4(b)(1)(iii)(B)(i) or (ii), and who do not access
the Registry for any other purpose. See 70 FR at
20849 n. 22. See also 69 FR at 45585–45586, and
68 FR at 45144.
22 See 70 FR at 20851.
23 Id. at 20850.
24 A list of the commenters in this proceeding,
and the acronyms used to identify each, is attached
hereto as an appendix. Comments submitted in
response to the 2005 Fee Rule NPR will be cited in
this Notice as ‘‘[Acronym of Commenter] at [page
number].’’ The nine comments that were submitted
included a joint comment filed on behalf of the
DMA, the ATA, and the NAA (i.e., DMA/ATA/
NAA).
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will increase, from $20.00 to $28.00.
Further, the Commission has decided to
continue to provide all organizations
with free access to the first five area
codes of data, and has decided to
continue to provide ‘‘exempt’’
organizations with free access to the
Registry, as well.
III. Discussion of Comments
The Commission received nine
comments in response to the 2005 Fee
Rule NPR.25 Of the nine comments
received, one comment was from a
consumer who favored providing free
access to the entire Registry to all
entities ‘‘in order to promote the widest
possible distribution of the Do Not Call
Lists,’’ thereby maximizing the ‘‘positive
effect of the legislation.’’ 26 The
remaining eight comments were
submitted by a mix of business and
industry commenters, all of whom were
opposed to the increase in fees, but who
were divided on whether the
Commission should reduce or eliminate
the number of free area codes provided.
In addition, one commenter opposed the
proposal to continue providing free
access to ‘‘exempt’’ organizations.27
Importantly, in addressing the specific
issues posed by the Commission, the
commenters submitted only limited data
or information that differed from that
previously submitted in connection
with fee rulemakings. Instead, the
comments primarily relied on
information provided by the FTC as part
of its 2005 Fee Rule NPR, and/or in
previous rulemaking proceedings.28
Similarly, the primary arguments
submitted in response to the 2005 Fee
Rule NPR’s proposal to raise fees also
have been previously considered by the
Commission.29
the appendix for a list of commenters.
DM at 1.
27 See ARDA at 3.
28 For example, four of the commenters noted, as
did the Commission in the 2005 Fee Rule NPR, that
100 percent of the fees are paid by a small minority
of the entities that access the Registry (e.g., only 11
percent of entities who access the Registry actually
pay anything for such access). See comments
submitted by FNBO, WF, WST, and ARDA.
However, this same point was also made in the
2004 Fee Rule proceeding: ‘‘[m]any noted that only
11 percent of all entities accessing the registry
currently pay the entire cost of the registry.’’ See 69
FR at 45582.
29 As another example, comments also included
suggestions that the Commission use ‘‘revenue from
enforcement proceedings to subsidize’’ the Registry,
and that the Commission should ‘‘increase efforts
to identify those entities that are not accessing the
Registry,’’ rather than increase the fees on those that
are already complying with the rules. See ARDA at
2–3. However, this same point was also made in the
2004 Fee Rule proceeding: ‘‘The FTC must
investigate whether there are entities that should be
paying for access but fail to do so’’ and ‘‘the FTC
should use fines obtained from enforcement actions
to offset some of the fee increase.’’ See 69 FR at
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25 See
26 See
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43275
While most of the comments
submitted represented views previously
considered, some of the comments
raised new points. For example, three of
the commenters expressed concern that
fees are continuing to increase each
year.30 One comment also expressed
opposition to any increase in fees that
might be attributable to the inclusion of
wireless telephone numbers on the
Registry.31 This same comment posited
that the Commission should not adopt
the increase in fees, because it is
‘‘unjustified at this time and
unnecessary for continued operation of
the registry.’’ This comment further
stated that the Commission is ‘‘not
required to collect fees up to [the]
amount, which was authorized by
Congress,’’ but rather, that the
Commission should only collect fees up
to the amount necessary to fund and
operate the Registry, an amount this
comment sets at $18.1 million.32
The major themes that emerged from
the record are summarized below.
1. Five Free Area Codes
In the 2005 Fee Rule NPR, the
Commission proposed, at least for the
next annual period, to continue
allowing all entities accessing the
Registry to obtain the first five area
codes of data for free. The Commission
proposed to continue allowing such free
access ‘‘to limit the burden placed on
small businesses that only require
access to a small portion of the
Registry.’’ 33 The Commission noted, as
it has in the past, that such a fee
structure was consistent with the
mandate of the Regulatory Flexibility
Act,34 which requires that to the extent,
if any, a rule is expected to have a
significant economic impact on a
substantial number of small entities,
agencies should consider regulatory
alternatives to minimize such impact.
As stated in the 2005 Fee Rule NPR and
in the 2004 Fee Rule, ‘‘the Commission
continues to believe that providing
access to five area codes of data for free
is an appropriate compromise between
the goals of equitably and adequately
funding the national registry, on one
45581–45582. Two of the comments also question
whether the fees that are being collected are being
used for purposes other than to fund the Registry.
See ARDA at 3, and DMA/ATA/NAA at 3. This
same issue was also raised in the 2004 Fee Rule
proceeding: ‘‘the fees should be used only to cover
the costs to operate the registry.’’ See 69 FR at
45582.
30 See FNBO at 2, ARDA at 1, and DMA/ATA/
NAA at 2.
31 See DMA/ATA/NAA at 4.
32 Id. at 1–2.
33 See 70 FR at 20850. See also 68 FR at 45140,
and 69 FR at 45582.
34 5 U.S.C. 601.
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hand, and providing appropriate relief
for small businesses, on the other.’’ 35 In
addition, the Commission noted again,
as it has in the past, that requiring a
large number of entities to pay a small
fee for access to five or fewer area codes
from the Registry would place a
significant burden on the Registry,
requiring the expenditure of even more
resources to handle properly that
additional traffic.36
While the 2005 Fee Rule NPR
proposed to continue providing free
access to five area codes of data, the
Commission nevertheless noted a
particular interest in comments
regarding the propriety, impact, and
effects of these provisions on all entities
accessing the Registry. In this regard,
the Commission specifically observed
that ‘‘the implementation and
enforcement costs are borne by a small
percentage of entities that access the
registry,’’ 37 but ‘‘that the cost of
accessing the registry is relatively
modest.’’ 38 As an example the
Commission explained that, if it were to
stop providing free access to five or
fewer area codes, the cost for accessing
five area codes of data could be as little
as $185. Therefore, ‘‘given the modest
nature of the fees, along with the
increasing burden borne by those
organizations that do pay for access,’’ 39
the Commission noted its particular
interest in comments addressing these
issues.
The Commission received seven
comments that addressed the issue of
five free area codes. Four of the
commenters opposed providing the first
five area codes of data at no charge,
noting that the entire cost of the Registry
is borne by a small percentage of all
entities who access the system.40 They
maintained that a fee structure that
requires so few organizations to bear
such a significant portion of the total
costs is not equitable.41 Commenters
also reiterated the Commission’s view
that if the Commission were to stop
providing free access to five or fewer
35 See 70 FR at 20850. See also 68 FR at 45141,
and 69 FR at 45584.
36 See 70 FR at 20850.
37 Id.
38 Id.
39 Id.
40 See FNBO, WF, WST, and ARDA. These
commenters relied solely on the data presented in
the Commission’s 2005 Fee Rule NPR, noting, for
example, that only 11 percent of all entities
accessing the Registry currently pay the entire cost
of the Registry. Commenters also noted the
complementary statistic, that approximately 89% of
all entities who access the Registry pay nothing.
See, e.g., FNBO at 2; WST at 1 (noting that an even
greater burden is borne by those entities who
purchase all area codes); and ARDA at 2.
41 See FNBO at 2; WST at 2; WF at 1; and ARDA
at 1–2.
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area codes, the cost for accessing five
area codes of data would be relatively
modest.42 These commenters also
suggested that any additional burden to
the system caused by the need to collect
additional payments should be factored
into the fees, assuming that this would
not increase fees beyond the amounts
proposed in the 2005 Fee Rule NPR.43
These commenters suggested that
eliminating access to five free area codes
would make the fee structure more
equitable,44 and that ‘‘the cost of the
Registry should be borne by all users
that are required to access the Registry
and absorbed as a cost of doing
business.’’ 45 Another alternative
suggested by one commenter was that
the Commission continue to provide
free access to five area codes, ‘‘provided
they qualify as a small business as
defined by the Small Business
Administration.’’ 46 One commenter also
suggested that the Commission charge
‘‘at least a reduced fee.’’ 47
On the other hand, three of the
comments supported providing the first
five area codes of data at no charge.48
One commenter stated that:
Removing the five area code exemption
would disproportionately impact [small]
businesses as they would pay the same per
area code fee as larger telemarketers, that
place a much heavier volume of calls to
phone numbers registered within these area
codes. * * * Removing the exemption
altogether would have a significant impact on
our members and many other small and
medium size businesses. * * * These
businesses have already assumed significant
training, systems, and other compliance costs
associated with the National DNC rules and
other federal and state telemarketing
restrictions.49
42 See WF at 1, stating that the ‘‘cost of paying
for access to the first five area codes * * * would
hardly be a significant burden on even the smallest
of businesses.’’ See also WST at 2, stating that ‘‘this
amount would not seem so exorbitant as to place
an undue burden on small business.’’
43 See FNBO at 1, and WST at 2. FNBO stipulated,
however, ‘‘that the Commission should only
allocate fees to all required users if it can be done
without increasing expenditures, which could
result in increased fees for everyone.’’
44 Id.
45 See FNBO at 2.
46 See WST at 2.
47 See ARDA at 1–2.
48 See NAR at 2, NADA at 1, and DMA/ATA/NAA
at 1.
49 See NADA at 1–2. Two commenters
specifically questioned the relationship between the
size of a business, and the number of area codes
such businesses need to access. See ARDA at 2, and
NAR at 1. ARDA and NAR suggested that some
small businesses may need to place a low volume
of calls to many area codes, while some large
businesses may place a large volume of calls to a
limited number of area codes. Accordingly, ARDA
and NAR suggested that the Commission’s current
fee structure, based on area codes accessed, does
not adequately address small business issues.
However, ARDA and NAR proposed two opposing
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Another commenter cited information
from the Small Business
Administration’s Office of Advocacy
which it claimed shows that ‘‘small
businesses represent 99 percent of
American companies’’ and ‘‘very small
firms with fewer than 20 employees
* * * spend 60 percent more per
employee than larger firms to comply
with federal regulations.’’ 50 This
commenter also pointed out that:
in today’s increasingly interconnected world,
a business may be small in size * * * but not
be limited to a small geographic market area
* * * many small businesses, including real
estate agents and brokers, often have the need
to call a limited number of consumers who
reside in a variety of states and/or area codes
beyond their primary five area code local
calling region.51
After considering all of the comments
submitted in this proceeding, the
Commission has determined to retain
the provision allowing the free access of
up to five area codes. Although the
Commission continues to recognize that
only a small percentage of the total
number of entities accessing the
Registry pay for that access, these
figures also illustrate the large number
of small businesses that likely would be
adversely affected by a change in the
number of area codes provided at no
cost. In fact, over 50,000 entities have
accessed five or fewer area codes of the
Registry. As observed in the 2005 Fee
Rule NPR and the 2004 Fee Rule, the
Commission continues to believe that
most of these entities—realtors, car
dealers, community-based newspapers,
and other small businesses—are
precisely the types of businesses that
the Regulatory Flexibility Act requires
the FTC to consider when adopting
regulations.52 Moreover, the
solutions to this problem: ARDA suggested that all
entities should be charged for all area codes they
access, thus eliminating the free access to five area
codes, while NAR suggested that small businesses
should be provided free access to the entire
Registry, thus expanding the free access currently
provided.
50 See NAR at 2.
51 See NAR at 1. NADA’s comment echoed these
concerns. NADA also provided an example to
illustrate the impact it felt would occur: ‘‘Since
most major metropolitan areas cover more than one
area code, most businesses that serve that area
would be affected if the number of free area codes
were reduced. For example, the DC Metropolitan
area consists of the following area codes: 202, 703,
571, 301, 240. If a small automobile dealership in
this area were limited to one or two free area codes
on the registry, they would have to pay to access
the remaining area codes. Thus, any reduction in
the number of free area codes would likely have a
significant economic impact on small businesses.’’
See NADA at 2.
52 The comments submitted in response to the
2005 Fee Rule NPR do not offer any information or
data to contradict this assertion. In this regard, we
note that the business and organization commenters
who support the proposal to continue providing
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Commission again finds significant the
information submitted by commenters
discussing the disproportionate impact
compliance with the ‘‘do-not-call’’
regulations may have on small
businesses. In order to lessen that
impact, the Commission believes that
retaining the five free area code
provision is appropriate.
The Commission does not believe that
the alternatives suggested instead of the
five free area code provision would be
as effective in minimizing the impact of
the Do Not Call regulations on small
businesses and that these proposed
alternatives may create undue burdens
that the current system does not impose.
For example, the suggestion to eliminate
or reduce the number of area codes
provided for free would result in tens of
thousands of entities that currently
access the Registry for free being
required to pay the same fee to access
the Registry as much larger businesses.
While, to some, such a fee might seem
modest, it nonetheless would represent
an increase in costs to more than 50,000
entities, most of whom are already
disproportionately impacted by the cost
of complying with the ‘‘do-not-call’’
regulations. Alternatively, the
suggestion to base the fees on the actual
size of the entity requesting access
would, as noted in the 2004 Fee Rule,
require all entities to submit sensitive
data concerning annual income, number
of employees, or other similar factors. It
also would require the FTC to develop
an entirely new system to gather that
information, maintain it in a proper
manner, and investigate those claims to
ensure proper compliance. As the
Commission has previously stated, such
a system ‘‘would present greater
administrative, technical, and legal
costs and complexities than the
Commission’s current exemptive
proposal, which does not require any
proof or verification of that status.’’ 53
As a result, the Commission continues
to believe that the most appropriate and
effective method to minimize the impact
of the Rule on small businesses is to
provide access to a certain number of
area codes at no charge.
five free area codes, purport to represent more than
1.2 million members and/or affiliates; many of
whom appear to be small business entities. See
NAR, NADA, and DMA/ATA/NAA. However, those
business and organization commenters who oppose
the proposal to continue providing five free area
codes appear to represent a much smaller number
of organizations, and do not purport to represent a
significant number of small business entities.
However, the Commission also notes that the
volume of comments received does not
conclusively indicate the number of organizations
that will be affected by the rule change.
53 See 69 FR at 45583. See also 68 FR at 16243
n.53.
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The comments also do not provide
any new information to support a
change in the number of area codes to
provide at no charge. Thus, the
Commission does not believe that any
change in the current level of five free
area codes is necessary or appropriate.
The Commission continues to recognize
that reducing the number of free area
codes would result in slightly lower fees
charged to the entities that must pay for
access. At the same time, however, as
noted previously, such a change also
would result in increased costs to
thousands of small businesses. On the
other hand, the Commission is not
persuaded that it should increase the
number provided at no charge, although
it continues to recognize that some
small businesses located in large
metropolitan areas may need to make
calls to more than five area codes.
Obviously, increasing the number of
area codes provided at no charge would
decrease the pool of paying entities, and
further increase the fees that entities
must pay. As a result, the Commission
continues to believe that allowing all
entities to gain access to the first five
area codes of data from the Registry at
no cost is appropriate.
2. Exempt Entity Access
In the 2005 Fee Rule NPR, the
Commission also proposed to continue
allowing ‘‘exempt’’ organizations to
obtain free access to the Registry.54 The
Commission stated its belief that any
exempt entity, voluntarily accessing the
Registry to avoid calling consumers who
do not wish to receive telemarketing
calls, should not be charged for such
access. Charging such entities access
fees, when they are under no legal
obligation to comply with the ‘‘do-notcall’’ requirements of the TSR, may
make them less likely to obtain access
to the Registry in the future, resulting in
an increase in unwanted calls to
consumers.55
Three of the comments supported
continuing to allow ‘‘exempt’’ entities to
access the Registry at no charge, for the
reasons set forth in the 2005 Fee Rule
NPR.56 One commenter opposed the
provision, claiming that fees are
necessary in order to make it more
difficult for ‘‘bad actors’’ 57 to gain
access to the system, as well as to help
‘‘fund the Registry.’’ 58
54 See supra footnote 21, citing 70 FR at 20849 n.
22, 69 FR at 45585–45586, and 68 FR at 45144.
55 See 70 FR at 20851.
56 See FNBO at 2, WF at 1, and WST at 2.
57 The Commission has found no evidence of
widespread non-compliance with the Do Not Call
provisions of the TSR. See discussion in section
III.3.
58 See ARDA at 3.
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43277
The Commission continues to believe
that if it charged exempt entities for
access to the Registry, many, if not most,
of those entities would no longer seek
access.59 As a result, as noted in the
2004 Fee Rule, registered consumers
would receive an increase in the
number of unwanted telephone calls.
Exempt entities are, by definition, under
no legal obligation to access the
Registry. Many are outside the
jurisdiction of the FTC. They are
voluntarily accessing the Registry in
order to avoid calling consumers whose
telephone numbers are registered. They
should be encouraged to continue doing
so, rather than be charged a fee for their
efforts. The Commission will, therefore,
continue to allow such exempt entities
to access the Registry at no charge, after
they have completed the required
certification.
3. Imposition of the Fees and Use of the
Funds
While the commenters disagreed on
whether access to five area codes of data
should continue to be provided at no
cost, they were unanimous in their
opposition to the increase in fees for
access to the National Do Not Call
Registry. Generally, in addition to
arguing that it would be unfair to
continue raising fees on the small
percentage of entities who pay for
accessing the Registry, 60 commenters
also posited other reasons in opposition
to the increase.
One commenter disapproved of the
proposed increase in fees, stating that
‘‘the Commission should increase efforts
to identify those entities that are not
accessing the Registry as required.’’ 61
Since the opening of the Registry, the
FTC has monitored industry payment
for access. We have found no evidence
of widespread noncompliance with the
2004 Fee Rule. Moreover, no commenter
has provided any concrete information
about such alleged noncompliance. As
part of our law enforcement activities,
we continue to welcome any specific
information that can be provided in this
regard. The FTC continues to conduct
non-public investigations of violations
of the fee provision as well as violations
of the do-not-call provisions of the TSR,
and will file law enforcement actions
addressing such violations when
appropriate.62
59 See also WF at 1, stating that ‘‘it is safe to
assume that few if any such entities would access
the list at all if they were required to pay for such
access.’’
60 See discussion starting in section III.1., above.
61 See ARDA at 3.
62 As of April 21, 2005, the FTC had initiated
seven DNC Registry cases and obtained four
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This same commenter suggested that
the FTC should use ‘‘revenue from
enforcement actions’’ to offset some of
the fee increase.63 However, as stated in
the 2004 Fee Rule, by statute, the FTC
cannot retain any civil penalties it
obtains in such law enforcement
actions. Instead, all such civil penalties
are deposited into the General Fund of
the United States Treasury.64
Accordingly, by law, any monies
obtained from enforcement actions
cannot be used to offset fees.
Two of the commenters also
questioned whether fees that are being
collected are being used for purposes
other than to fund the Registry.65 One
commenter stated that ‘‘fees * * *
should only be used to fund
enforcement and administrative costs
directly associated with the Registry,’’ 66
and another commenter stated that they
‘‘are concerned that fees are being used
for telemarketing enforcement based on
fraud or other violations of the TSR,
where there may also be an incidental
violation of the registry.’’ 67 These
commenters also noted the
Commission’s statements regarding
industry’s high rate of compliance, and
argued that it is unfair to continue
increasing fees and imposing
enforcement costs on the very
organizations that are most compliant
with the rules.68
Consistent with the Implementation
Act, and as stated in previous
rulemaking proceedings, 69 the
Commission has limited the amount of
fees to be collected to those needed to
implement and enforce the ‘‘do-notcall’’ provisions of the Amended TSR.
The amount of fees collected pursuant
to this revised rule is intended to offset
costs in the following three areas: first,
funds are collected to operate the
Registry. This operation includes items
such as handling consumer registration
and complaints, telemarketer access to
the Registry, state access to the Registry,
and the management and operation of
law enforcement access to appropriate
settlements (two of those cases were filed by the
Department of Justice on the FTC’s behalf). In
addition, the FTC had filed four cases against donot-call scams.
63 See ARDA at 2.
64 See Miscellaneous Receipts Act, 31 U.S.C.
3302.
65 See ARDA at 3 and DMA/ATA/NAA at 3.
66 See ARDA at 3.
67 See DMA/ATA/NAA at 3.
68 See ARDA at 2, and DMA/ATA/NAA at 3–4.
DMA/ATA/NAA further stated their belief that ‘‘it
is inappropriate for entities that comply with the
law to bear the enforcement costs of the FTC. If the
do-not-call registry is as successful as the FTC
indicates, the FTC itself or Congress should provide
any additional necessary funding increases over the
current fee structure.’’ See DMA/ATA/NAA at 3–4.
69 See 69 FR at 45582. See also 68 FR at 45141.
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information. Second, funds are collected
for law enforcement and educational
activities, including identifying targets,
coordinating domestic and international
initiatives, challenging alleged violators,
and consumer and business education
outreach. These law enforcement efforts
are a significant component of the total
costs, given the large number of ongoing
investigations currently being
conducted by the FTC, and the
substantial effort necessary to complete
such investigations. Third, funds are
collected to cover infrastructure and
administration costs associated with the
operation and enforcement of the
Registry, including information
technology structural supports and
distributed mission overhead support
costs for staff and non-personnel
expenses such as office space, utilities,
and supplies.70
Three of the commenters also raised
concerns regarding the pattern of annual
fee increases that the Commission has
adopted.71 One commenter stated that it
was ‘‘concerned, given the sharp
increases in the cost of the Registry over
the first two years of activation, that this
cost will continue to increase and over
time become a significant cost that will
ultimately be passed on to the
consumer.’’ 72 Another commenter
raised the concern that:
As the user fee increases, it is inevitable
that compliant sellers will be motivated to (1)
reduce or stop outbound telemarketing; or (2)
avoid paying the fees in violation of the
rules. Either event will reduce the number of
sellers (and/or area codes accessed by the
sellers), which will result in lower fees, and
in turn result in more fee increases in the
future to be paid by only the most profitable
businesses.73
A third commenter stated that while
fees have increased, the ‘‘Commission
has not indicated in the NPRM that
costs to run the registry have increased
or that enforcement or other costs have
increased.’’ 74 The Commission has
increased the fees charged to
telemarketers for accessing the Registry;
in 2004, this was primarily because
fewer area codes of information were
purchased than were anticipated in the
2003 Fee Rule.75 As part of the 2004 Fee
70 FR at 20850.
FNBO at 2, ARDA at 1, and DMA/ATA/
NAA at 2.
72 See FNBO at 2. Interestingly, FNBO also notes
‘‘that the Registry’s overall cost per year does not
in and of itself significantly impact our company’s
bottom line.’’ Id.
73 See ARDA at 1–2.
74 See DMA/ATA/NAA at 2.
75 See 68 FR at 45140. As stated in the 2003 Fee
Rule, the fees were ‘‘based on the best information
available to the agency at [that] time.’’ However, as
the Commission noted, we ‘‘received virtually no
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70 See
71 See
Frm 00020
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Sfmt 4700
Rule proceedings, the Commission
reviewed the fees that had been
collected, along with data about the
number of area codes that had been
purchased, and revised its initial
assumptions accordingly. As a result,
the Commission increased the fees
based on the latest information then
available.76 Similarly, in the 2005 Fee
Rule NPR, the Commission analyzed the
current information, and issued a
proposal that reflected both the amount
that needed to be raised, 77 along with
the number of area codes that were
projected to be purchased. As a result,
the fees that were proposed in the 2005
Fee Rule NPR represented an increase
over the fees adopted in the 2004 Fee
Rule.
In this regard, one commenter stated
its belief that this increase is unjustified
and only reflects the ‘‘increase in the
annual congressional authorization.’’ 78
However, an increase in the amount of
funding required to cover the
administrative costs of the Registry,
while a component of the fee increase,
is not the only component. As in the
2004 Fee Rule, a second major factor
that influenced the increase proposed in
the 2005 Fee Rule NPR was the number
of area codes that were purchased by
entities accessing the Registry. The fees
that the Commission proposed in the
2005 Fee Rule NPR reflect both the
amount of funds necessary to
implement and enforce the Registry, as
well as the number of area codes that
the Commission assumes will be
purchased by entities accessing the
Registry, based on the Commission’s
current experience. Importantly, the
Commission believes that, through
experience, it will continue to obtain
better information about the number of
entities accessing the Registry, their
purchasing behavior, and the costs
associated with running the Registry.
The Commission expects this
experience and improved information to
result in more stable and predictable fee
rates.
comments providing information on the validity of
the Commission’s assumptions.’’
76 See 69 FR at 45584.
77 The Commission views the current
Congressional authorization as an instruction
regarding the fees to be collected.
78 See DMA/ATA/NAA at 2. The Commission
also notes that DMA/ATA/NAA stated that
Congress authorized the Commission to collect
$18.1 million in offsetting fees in 2004. However,
Congress actually authorized the Commission to
collect $23.1 million in the 2004 Appropriations
Act. However, in its rulemaking, the Commission
stated that it was only seeking $18.1 million in
offsetting fees during Fiscal year 2004 because of
the $5.1 million from the 2003 Fee Rule that the
Commission collected in Fiscal Year 2004. See 69
FR at 23702 n. 4.
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In addition, one commenter also
expressed opposition to any increase in
fees that might be attributable to the
inclusion of wireless telephone numbers
on the Registry, stating that:
Telemarketing calls to wireless numbers
without consent are prohibited under the
FCC’s rules implementing the Telephone
Consumer Protection Act of 1991 (‘‘TCPA’’),
47 U.S.C. 227 et seq. Thus, as a legal matter,
consumers receive no fewer telemarketing
calls by placing their wireless numbers on
the registry. Because such calls already are
prohibited in the first instance, there is no
basis for allowing such numbers to be placed
on the registry.79
However, this commenter overstated the
nature of the prohibition enacted by the
Federal Communication Commission
(‘‘FCC’’). The FCC’s prohibitions on
telemarketing calls placed to wireless
telephone numbers, proscribe the use of
an ‘‘automatic telephone dialing system
or an artificial or prerecorded message’’
to place such calls.80 In this regard, the
Commission has received no
information that would suggest that
those engaged in telemarketing activities
only use the aforementioned technology
to place calls to consumers. The TSR’s
prohibitions concerning fraudulent or
abusive telemarketing acts or practices
apply to both land line and wireless
telephones, and the Registry has never
differentiated between the two. At this
point, the Commission sees no reason to
make such a distinction.
Accordingly, the Commission
concludes that an increase in fees is
necessary.
IV. Calculation of the Revised Fees
As previously stated, the Commission
proposed in the 2005 Fee Rule NPR to
increase the fees charged to access the
National Do Not Call Registry to $56
annually for each area code of data
requested, with the maximum annual
fee capped at $15,400 for entities
accessing 280 area codes of data or
more. The Commission based this
proposal on the total number of entities
that accessed the Registry from March 1,
2004 through February 28, 2005.81 The
Commission noted, however, that it
would adjust the final revised fee to
reflect the actual number of entities that
79 See
DMA/ATA/NAA at 4.
FCC Telemarketing and Telephone
Solicitation Rules, 47 CFR 64.1200 (2005).
81 At that time, more than 60,800 entities had
accessed all or part of the information in the
Registry. Approximately 1,300 of these entities are
‘‘’exempt’’and therefore have accessed the Registry
at no charge. An additional 52,700 entities have
accessed five or fewer area codes of data, also at no
charge. As a result, approximately 6,700 entities
have paid for access to the Registry, with slightly
less than 1,100 entities paying for access to the
entire Registry. See 70 FR at 20849–20850.
80 See
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had accessed the Registry at the time of
issuance of the Final Rule.82
As of June 1, 2005, there have been no
significant or material changes in the
number of entities that have accessed
the Registry since the Commission
issued the 2005 Fee Rule NPR.
Therefore, based on the figures
contained in the 2005 Fee Rule NPR,
and the need to raise $21.9 million in
fees to offset costs it expects to incur in
this Fiscal Year for implementing and
enforcing the ‘‘do-not-call’’ provisions
of the Amended TSR, the Commission
is revising the fees to be charged for
access to the Registry as follows: the fee
charged for each area code of data will
be $56 per year, with the first five area
codes provided to each entity at no
charge. ‘‘Exempt’’ organizations, as
defined by the Do Not Call regulations,
will continue to be allowed access to the
Registry at no charge. The maximum
amount that will be charged any single
entity will be $15,400, which will be
charged to any entity accessing 280 area
codes of data or more. The fee charged
to entities requesting access to
additional area codes of data during the
second six months of their annual
period will be $28.
The Commission establishes
September 1, 2005, as the effective date
for this rule change. Thus, the revised
fees will be charged to all entities that
renew their subscription account
number after their current subscription
has expired.
V. Paperwork Reduction Act
Pursuant to the Paperwork Reduction
Act,83 the Office of Management and
Budget (‘‘OMB’’) has approved the
information collection requirements in
the 2004 Fee Rule and assigned OMB
Control Number 3084–0097. The rule
amendment, as discussed above,
provides for an increase in the fees that
are charged for accessing the National
Do Not Call Registry, but creates no new
recordkeeping, reporting, or third-party
disclosure requirements that would be
subject to review and approval by OMB
pursuant to the Paperwork Reduction
Act.
VI. Regulatory Flexibility Act
The Regulatory Flexibility Act
(‘‘RFA’’), 5 U.S.C. 601 et seq., requires
the FTC to provide an Initial Regulatory
Flexibility Analysis (‘‘IRFA’’) with its
proposed rule, and a Final Regulatory
Flexibility Analysis (‘‘FRFA’’) with its
final rule, unless the FTC certifies that
the rule will not have a significant
economic impact on a substantial
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82 Id.
83 44
at 20850 n.24.
U.S.C. 3501–3520.
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43279
number of small entities. As explained
in the 2005 Fee Rule NPR and this
Statement, the Commission hereby
certifies that it does not expect that its
Final Amended Fee Rule will have the
threshold impact on small entities. As
discussed above, this Amended Rule
specifically charges no fee for access to
data included in the Registry from one
to five area codes. As a result, the
Commission anticipates that many small
businesses will be able to access the
Registry without having to pay any
annual fee. Thus, it is unlikely that
there will be a significant burden on
small businesses resulting from the
adoption of the proposed revised fees.
Nonetheless, the Commission published
an IRFA with the 2005 Fee Rule NPR,
and is also publishing a FRFA with its
Final Amended Fee Rule below, in the
interest of further explaining its
determination, even though the
Commission believes that it is not
required to publish such analyses.
A. Reasons for Consideration of Agency
Action
The Amended Final Fee Rule has
been considered and adopted pursuant
to the requirements of the
Implementation Act and the 2005
Appropriations Act, which authorize
the Commission to collect fees sufficient
to implement and enforce the ‘‘do-notcall’’ provisions of the Amended TSR.
B. Statement of Objectives and Legal
Basis
As explained above, the objective of
the Amended Final Fee Rule is to
collect sufficient fees from entities that
must access the National Do Not Call
Registry. The legal authority for this
Rule is the 2005 Appropriations Act, the
Implementation Act, and the
Telemarketing Act.
C. Description of Small Entities to
Which the Rule Will Apply
The Small Business Administration
has determined that ‘‘telemarketing
bureaus’’ with $6 million or less in
annual receipts qualify as small
businesses.84 Similar standards, i.e., $6
million or less in annual receipts, apply
for many retail businesses that may be
‘‘sellers’’ and subject to the revised fee
provisions set forth in this Amended
Final Rule. In addition, there may be
other types of businesses, other than
retail establishments, that would be
‘‘sellers’’ subject to this rule.
To date more than 50,000 entities
have accessed five or fewer area codes
84 See
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of data from the Registry at no charge.85
While not all of these entities may
qualify as small businesses, and some
small businesses may be required to
purchase access to more than five area
codes of data, the Commission believes
that this is the best estimate of the
number of small entities that will be
subject to this Amended Final Rule. In
any event, as explained elsewhere in
this Statement, the Commission believes
that, to the extent the Amended Final
Fee Rule has an economic impact on
small business, the Commission has
adopted an approach that minimizes
that impact to ensure that it is not
substantial, while fulfilling the legal
mandate of the Implementation Act and
2005 Appropriations Act to ensure that
the telemarketing industry supports the
cost of the National Do Not Call
Registry.
D. Projected Reporting, Recordkeeping
and Other Compliance Requirements
The information collection activities
at issue in this Amended Final Rule
consist principally of the requirement
that firms, regardless of size, that access
the Registry submit minimal identifying
and payment information, which is
necessary for the FTC to collect the
required fees. The cost impact of that
requirement and the labor or
professional expertise required for
compliance with that requirement were
discussed in Section VI of the 2005 Fee
Rule NPR.86
As for compliance requirements,
small and large entities subject to the
Amended Fee Rule will pay the same
fees to obtain access to the National Do
Not Call Registry in order to reconcile
their calling lists with the phone
numbers maintained in the Registry. As
data accessed by any person, and
provided further, that there shall be no
charge to any person engaging in or
causing others to engage in outbound
telephone calls to consumers and who
is accessing the National Do Not Call
Registry without being required under
this Rule, 47 CFR 64.1200, or any other
federal law. Any person accessing the
E. Duplication With Other Federal Rules
National Do Not Call Registry may not
None.
participate in any arrangement to share
F. Discussion of Significant Alternatives the cost of accessing the registry,
including any arrangement with any
The Commission discussed the
telemarketer or service provider to
proposed alternatives in Section III,
divide the costs to access the registry
above.
among various clients of that
telemarketer or service provider.
List of Subjects in 16 CFR Part 310
(d) After a person, either directly or
Telemarketing, Trade practices.
through another person, pays the fees
set forth in § 310.8(c), the person will be
VII. Final Rule
provided a unique account number
I Accordingly, for the reasons set forth
which will allow that person to access
above, the Commission hereby amends
the registry data for the selected area
part 310 of title 16 of the Code of Federal codes at any time for twelve months
Regulations as follows:
following the first day of the month in
which the person paid the fee (‘‘the
PART 310—TELEMARKETING SALES
annual period’’). To obtain access to
RULE
additional area codes of data during the
first six months of the annual period,
I 1. The authority citation for part 310
the person must first pay $56 for each
continues to read as follows:
additional area code of data not initially
Authority: 15 U.S.C. 6101–6108.
selected. To obtain access to additional
area codes of data during the second six
I 2. Revise § 310.8(c) and (d) to read as
months of the annual period, the person
follows:
must first pay $28 for each additional
§ 310.8 Fee for access to the National Do
area code of data not initially selected.
Not Call Registry.
The payment of the additional fee will
*
*
*
*
*
permit the person to access the
(c) The annual fee, which must be
additional area codes of data for the
paid by any person prior to obtaining
remainder of the annual period.
access to the National Do Not Call
*
*
*
*
*
Registry, is $56 per area code of data
By direction of the Commission.
accessed, up to a maximum of $15,400;
Donald S. Clark,
provided, however, that there shall be
no charge for the first five area codes of
Secretary.
noted earlier, however, compliance
costs for small entities are not
anticipated to have a significant impact
on small entities, to the extent the
Commission believes that compliance
costs for those entities will be largely
minimized by their ability to obtain data
for up to five area codes at no charge.
APPENDIX—LIST OF ACRONYMS FOR COMMENTERS TO THE TSR 2005 FEE RULE PROPOSAL
Commenter
Acronym
1. American Resort Development Association .................................................................................................................................
2. Darian Miller .................................................................................................................................................................................
3. Direct Marketing Association, Inc. (DMA), American Teleservices Association (ATA), and Newspaper Association of America (NAA).
4. First National Bank of Omaha ......................................................................................................................................................
5. Influent, Inc ...................................................................................................................................................................................
6. National Association of Realtors ..................................................................................................................................................
7. National Automobile Dealers Association ....................................................................................................................................
8. Wells Fargo & Company ..............................................................................................................................................................
9. West Corporation ..........................................................................................................................................................................
85 See
86 See
supra note 81.
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Federal Register / Vol. 70, No. 143 / Wednesday, July 27, 2005 / Rules and Regulations
[FR Doc. 05–14905 Filed 7–26–05; 8:45 am]
BILLING CODE 6750–01–P
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 165
[COTP Charleston 05–037]
RIN 1625–AA87
Security Zones; Charleston Harbor,
Cooper River, SC
Coast Guard, DHS.
Final rule.
AGENCY:
ACTION:
SUMMARY: The Coast Guard is
establishing a fixed security zone in the
waters from the Don Holt, I–526 Bridge,
on the Cooper River to the entrance of
Foster Creek on the Cooper River, South
Carolina. This security zone is necessary
to protect the public and port from
potential subversive acts during port
embarkation operations. Vessels are
prohibited from entering, transiting,
anchoring, mooring, or loitering within
this zone, unless specifically authorized
by the Captain of the Port, Charleston,
South Carolina or the Captain of the
Port’s designated representative.
DATES: This rule is effective on June 1,
2005.
ADDRESSES: Comments and material
received from the public, as well as
documents indicated in this preamble as
being available in the docket, are part of
docket [COTP Charleston 05–037] and
are available for inspection or copying
at the Marine Safety Office Charleston
between 8 a.m. and 4 p.m., Monday
through Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT:
LTJG Matthew Meskun, Chief of
Waterways Management Division at
843–720–3240.
SUPPLEMENTARY INFORMATION:
Regulatory Information
On May 6, 2005, we published a
notice of proposed rulemaking (NPRM)
entitled ‘‘Security Zones; Charleston
Harbor, Cooper River, SC’’ in the
Federal Register (70 FR 23950). We
received no letters commenting on the
proposed rule. No public meeting was
requested, and none was held.
Under 5 U.S.C. 553(d)(3), the Coast
Guard finds that good cause exists for
making this rule effective less than 30
days after publication in the Federal
Register. A similar temporary final rule
(70 FR 1187, January 6, 2005) is in place
but will expire on June 1, 2005.
VerDate jul<14>2003
18:34 Jul 26, 2005
Jkt 205001
Delaying the effective date would be
contrary to the public interest as this
final rule is necessary to prevent
terrorist acts and to protect military and
civilian personnel should a terrorist act
occur.
Background and Purpose
This security zone is necessary to
protect the safety of life and property on
navigable waters and prevents potential
terrorist threats aimed at military
installations during strategic
embarkation operations. The security
zone will encompass all waters from the
Don Holt I–526 Bridge over the Cooper
River to the entrance of Foster Creek on
the Cooper River. Occasionally multiple
military vessels are in port at the same
time, all of which require security
zones. When this occurs, the safest way
to secure the assets is to close this
portion of the river. Additionally, this
security zone has been in place on a
temporary basis since the terrorist
attacks of September 11, 2001. The
current temporary security zone, 33 CFR
165.T07–145, was published in the
Federal Register January 6, 2005 (70 FR
1187).
Discussion of Comments and Changes
No substantive issues were raised
during the comment period and no
changes were made from the proposed
regulatory text.
Discussion of Rule
The security zone will encompass all
waters from the Don Holt I–526 Bridge
over the Cooper River to the entrance of
Foster Creek on the Cooper River. The
Charleston Captain of the Port will
enforce the security zone on the Cooper
River from time to time and in the
interest of national security vessels that
are carrying cargo for the Department of
Defense (DoD).
These vessels that carry DoD cargo
need a level of security that requires the
Cooper River to be closed to all traffic
for short periods of time. Security assets
would be on scene and mariners will be
given as much advanced notice as
possible. Marine Safety Office
Charleston will notify the maritime
community of closure periods via a
broadcast notice to mariners on VHF
Marine Band Radio, Channel 16 (156.8
MHz), or Marine Safety Information
Bulletins, or actual notice from on scene
security assets enforcing the zone.
Regulatory Evaluation
This rule is not a ‘‘significant
regulatory action’’ under section 3(f) of
Executive Order 12866, Regulatory
Planning and Review, and does not
require an assessment of potential costs
PO 00000
Frm 00023
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43281
and benefits under section 6(a)(3) of that
Order. The Office of Management and
Budget has not reviewed it under that
Order. It is not ‘‘significant’’ under the
regulatory policies and procedures of
the Department of Homeland Security
(DHS).
We expect the economic impact of
this rule to be so minimal that a full
Regulatory Evaluation under the
regulatory policies and procedures of
DHS is unnecessary.
The limited geographic area
encompassed by the security zone
should not restrict the movement of
commercial or recreational vessels
through the Port of Charleston. Also, the
Coast Guard Captain of the Port or the
Captain of the Port’s designated
representative may allow an individual
to transit the security zone subsequent
to an individual’s request.
Small Entities
Under the Regulatory Flexibility Act
(5 U.S.C. 601–612), we have considered
whether this rule would have a
significant economic impact on a
substantial number of small entities.
The term ‘‘small entities’’ comprises
small businesses, not-for-profit
organizations that are independently
owned and operated and are not
dominant in their fields, and
governmental jurisdictions with
populations of less than 50,000.
The Coast Guard certifies under 5
U.S.C. 605(b) that this rule would not
have a significant economic impact on
a substantial number of small entities.
This rule would affect the following
entities, some of which might be small
entities: The owners or operators of
vessels intending to transit a portion of
the Cooper River while the security
zone is in effect.
This security zone will not have a
significant economic impact on a
substantial number of small entities
because it will only be in place for short
periods of time on an infrequent basis.
As much advanced notice will be
provided to mariners in order to
accommodate for any enforcement of
the security zone.
If you think that your business,
organization, or governmental
jurisdiction qualifies as a small entity
and that this rule would have a
significant economic impact on it,
please submit a comment (see
ADDRESSES) explaining why you think it
qualifies and how and to what degree
this rule would economically affect it.
Assistance for Small Entities
Under section 213(a) of the Small
Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104–121),
E:\FR\FM\27JYR1.SGM
27JYR1
]]>Agencies
[Federal Register Volume 70, Number 143 (Wednesday, July 27, 2005)]
[Rules and Regulations]
[Pages 43273-43281]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-14905]
=======================================================================
-----------------------------------------------------------------------
FEDERAL TRADE COMMISSION
16 CFR Part 310
RIN 3084-0098
Telemarketing Sales Rule Fees
AGENCY: Federal Trade Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Federal Trade Commission (the ``Commission'' or ``FTC'')
is issuing this Final Rule to amend the FTC's Telemarketing Sales Rule
(``TSR'') by revising the fees charged to entities accessing the
National Do Not Call Registry (``the Registry'').
DATES: Effective date: The amendment to Sec. 310.8 (``the Fee Rule'')
will become effective September 1, 2005.
ADDRESSES: Requests for copies of this Final Fee Rule should be sent
to: Public Reference Branch, Federal Trade Commission, Room 130, 600
Pennsylvania Avenue, NW., Washington, DC 20580. The complete public
record of this proceeding is also available at that address, and on the
Internet at: https://www.ftc.gov/bcp/rulemaking/tsr/tsrrulemaking/
index.htm.
FOR FURTHER INFORMATION CONTACT: David B. Robbins, (202) 326-3747,
Division of Planning & Information, Bureau of Consumer Protection,
Federal Trade Commission, 600 Pennsylvania Avenue, NW., Washington, DC
20580.
SUPPLEMENTARY INFORMATION: The amended rule increases the annual fee
for each area code of data to $56.00 per area code, or $28.00 per area
code of data during the second six months of an entity's annual
subscription period. The maximum amount that would be charged to any
single entity for
[[Page 43274]]
accessing 280 area codes of data or more is increased to $15,400.00. In
addition, the amended rule retains the provisions regarding free access
by ``exempt'' organizations, as well as free access to the first five
area codes of data by all entities.
Statement of Basis and Purpose
I. Background
On December 18, 2002, the Commission issued final amendments to the
TSR, which, inter alia, established the Registry, permitting consumers
to register, via either a toll-free telephone number or the Internet,
their preference not to receive certain telemarketing calls (``Amended
TSR'').\1\ Under the Amended TSR, most telemarketers are required to
refrain from calling consumers who have placed their numbers on the
Registry.\2\ Telemarketers must periodically access the Registry to
remove from their telemarketing lists the telephone numbers of those
consumers who have registered.\3\
---------------------------------------------------------------------------
\1\ See 68 FR 4580 (Jan. 29, 2003) (codified at 16 CFR 310).
\2\ 16 CFR 310.4(b)(1)(iii)(B).
\3\ 16 CFR 310.4(b)(3)(iv). The TSR requires telemarketers to
access the Registry at least once every thirty-one days, effective
January 1, 2005. See 69 FR 16368 (March 29, 2004).
---------------------------------------------------------------------------
Shortly after issuance of the Amended TSR, Congress passed the Do-
Not-Call Implementation Act (``the Implementation Act'').\4\ The
Implementation Act gave the Commission the specific authority to
``promulgate regulations establishing fees sufficient to implement and
enforce the provisions relating to the ``do-not-call'' registry of the
[TSR].'' \5\ The Implementation Act also provides that ``[n]o amounts
shall be collected as fees pursuant to this section for such fiscal
years except to the extent provided in advance in appropriations Acts.
Such amounts shall be available * * * to offset the costs of activities
and services related to the implementation and enforcement of the
[TSR], and other activities resulting from such implementation and
enforcement.'' \6\
---------------------------------------------------------------------------
\4\ Do-Not-Call Implementation Act, Pub. L. 108-10, 117 Stat.
557 (2003).
\5\ Id. at section 2.
\6\ Id.
---------------------------------------------------------------------------
On July 29, 2003, pursuant to the Implementation Act and the
Consolidated Appropriations Resolution, 2003,\7\ the Commission issued
a Final Rule further amending the TSR to set fee amounts for entities
accessing the National Do Not Call Registry (``the 2003 Fee Rule'').\8\
Those fees were based on the FTC's best estimate of the number of
paying entities that would access the Registry, and the need to raise
$18.1 million in Fiscal Year 2003 to cover the costs associated with
the implementation and enforcement of the ``do-not-call'' provisions of
the Amended TSR. The Commission determined that the fee structure would
be based on the number of different area codes of data that an entity
wished to access annually. The 2003 Fee Rule established an annual fee
of $25 for each area code of data requested from the Registry, with the
first five area codes of data provided at no cost.\9\ The maximum
annual fee was capped at $7,375 for entities accessing 300 area codes
of data or more.\10\
---------------------------------------------------------------------------
\7\ Consolidated Appropriations Resolution, 2003, Pub. L. 108-7,
117 Stat. 11 (2003).
\8\ 68 FR 45134 (July 31, 2003).
\9\ Once an entity requested access to area codes of data in the
Registry, it could access those area codes as often as it deemed
appropriate for one year (defined as its ``annual period''). If,
during the course of its annual period, an entity needed to access
data from more area codes than those initially selected, it would be
required to pay for access to those additional area codes. For
purposes of these additional payments, the annual period was divided
into two semi-annual periods of six months each. Obtaining
additional data from the Registry during the first semi-annual, six
month period required a payment of $25 for each new area code.
During the second semi-annual, six month period, the charge for
obtaining data from each new area code requested during that six-
month period was $15. These payments for additional data would
provide the entity access to those additional area codes of data for
the remainder of its annual term.
\10\ 68 FR at 45141.
---------------------------------------------------------------------------
On July 30, 2004, pursuant to the Implementation Act and the
Consolidated Appropriations Act, 2004 (``the 2004 Appropriations
Act''),\11\ the Commission issued a revised Final Rule further amending
the TSR, which increased fees on entities accessing the National Do Not
Call Registry (''the 2004 Fee Rule'').\12\ Those fees were based on the
FTC's experience through June 1, 2004, its best estimate of the number
of paying entities that would access the Registry, and the need to
raise $18 million in Fiscal Year 2004 to cover the costs associated
with the implementation and enforcement of the ``do-not-call''
provisions of the Amended TSR. The Commission determined that the fee
structure would continue to be based on the number of different area
codes of data that an entity wished to access annually. The 2004 Fee
Rule established an annual fee of $40 for each area code of data
requested from the Registry, with the first five area codes of data
provided at no cost.\13\ The maximum annual fee was capped at $11,000
for entities accessing 280 area codes of data or more.\14\
---------------------------------------------------------------------------
\11\ Consolidated Appropriations Act, 2004, Pub. L. 108-199, 118
Stat. 3 (2004).
\12\ 69 FR 45580 (July 30, 2004).
\13\ Id. at 45584. The 2004 Fee Rule has the same fee structure
as the 2003 Fee Rule; however, fees were increased from $25 to $40
per area code, from $15 to $20 per area code for the second semi-
annual six month period, and from a maximum of $7,375 to $11,000.
\14\ Id.
---------------------------------------------------------------------------
In the Consolidated Appropriations Act, 2005 (``the 2005
Appropriations Act''),\15\ Congress directed the FTC to collect
offsetting fees in the amount of $21.9 million in Fiscal Year 2005 to
implement and enforce the TSR.\16\ Pursuant to the 2005 Appropriations
Act and the Implementation Act, as well as the Telemarketing Fraud and
Abuse Prevention Act (``the Telemarketing Act''),\17\ the FTC issued a
Notice of Proposed Rulemaking to amend the fees charged to entities
accessing the Registry (``the 2005 Fee Rule NPR'').\18\
---------------------------------------------------------------------------
\15\ Consolidated Appropriations Act, 2005, Pub. L. 108-447, 118
Stat. 2809 (2004).
\16\ Id. at Division B, Title V.
\17\ 15 U.S.C. 6101-08.
\18\ 70 FR 20848 (April 22, 2005).
---------------------------------------------------------------------------
In the 2005 Fee Rule NPR, the Commission proposed revising the fees
for access to the Registry in order to raise $21.9 million to offset
costs the FTC expects to incur in this Fiscal Year for purposes related
to implementing and enforcing the ``do-not-call'' provisions of the
Amended TSR. Based on the number of entities that had accessed the
Registry through the end of February 2005, the Commission proposed
revising the fees to charge $56 annually for each area code of data
requested from the Registry, with the first five area codes of data
provided at no cost. As a consequence of the increase in the per-area-
code charge, the maximum annual fee would increase to $15,400 for
entities accessing 280 area codes of data or more.\19\
---------------------------------------------------------------------------
\19\ Id. at 20852.
---------------------------------------------------------------------------
In the 2005 Fee Rule NPR, the Commission sought comment on the
following issues relating to the proposed amendment:
(1) Whether entities accessing the Registry should continue to
obtain the first five area codes of data for free;\20\
---------------------------------------------------------------------------
\20\ Id. at 20850. The Commission was particularly interested in
comments addressing (a) whether there are alternatives to providing
free access to the first five area codes of data that would better
balance the burdens faced by small businesses with the need to raise
appropriate fees to fund the Registry in a more equitable manner;
(b) the propriety of changing or eliminating the number of area
codes for which there is no charge, and the effect, if any, on
entities that access the Registry, including small businesses; (c)
the nature and type of entities that are accessing five or fewer
area codes at no cost, and whether these entities are primarily the
types of businesses that the Regulatory Flexibility Act requires the
FTC to consider when adopting regulations, and whether such entities
need access to one, two, three, four, or five area codes; and (d)
whether any changes in the number of free area codes would affect an
entity's business practices, including whether an entity would
choose not to access an area code if it had to pay for that area
code or whether the entity would pay to continue accessing that area
code.
---------------------------------------------------------------------------
[[Page 43275]]
(2) Whether ``exempt'' organizations should continue to be provided
with free access to the Registry; \21\
---------------------------------------------------------------------------
\21\ Id. at 20851. The 2005 Fee Rule NPR, the 2003 Fee Rule, and
the 2004 Fee Rule stated that ``there shall be no charge to any
person engaging in or causing others to engage in outbound telephone
calls to consumers and who is accessing the National Do Not Call
Registry without being required to under this Rule, 47 CFR 64.1200,
or any other federal law.'' 16 CFR 310.8(c). Such ``exempt''
organizations include entities that engage in outbound telephone
calls to consumers to induce charitable contributions, for political
fund raising, or to conduct surveys. They also include entities
engaged solely in calls to persons with whom they have an
established business relationship or from whom they have obtained
express written agreement to call, pursuant to 16 CFR
310.4(b)(1)(iii)(B)(i) or (ii), and who do not access the Registry
for any other purpose. See 70 FR at 20849 n. 22. See also 69 FR at
45585-45586, and 68 FR at 45144.
---------------------------------------------------------------------------
(3) The number and type of small business entities that may be
subject to the revised fees; \22\ and
---------------------------------------------------------------------------
\22\ See 70 FR at 20851.
---------------------------------------------------------------------------
(4) Whether there are any significant alternatives that would
further minimize the impact of the rule on small entities, consistent
with the objectives of the Telemarketing Act, the 2005 Appropriations
Act, the Implementation Act, and the Regulatory Flexibility Act.\23\
In response to the 2005 Fee Rule NPR, the Commission received nine
comments.\24\ The amended rule, comments, and the basis for the
Commission's decision on the various recommendations are analyzed in
detail below.
---------------------------------------------------------------------------
\23\ Id. at 20850.
\24\ A list of the commenters in this proceeding, and the
acronyms used to identify each, is attached hereto as an appendix.
Comments submitted in response to the 2005 Fee Rule NPR will be
cited in this Notice as ``[Acronym of Commenter] at [page number].''
The nine comments that were submitted included a joint comment filed
on behalf of the DMA, the ATA, and the NAA (i.e., DMA/ATA/NAA).
---------------------------------------------------------------------------
II. The Amended Rule
Based on the 2005 Appropriations Act, the Implementation Act, and
the Telemarketing Act, as well as its review of the record in this
proceeding, and on its law enforcement experience in this area, the
Commission has decided to modify the fees required under the TSR Fee
Rule. Under the amended rule provisions adopted herein, the annual fee
for accessing the Registry will increase from $40.00 per area code to
$56.00 per area code, and from a maximum of $11,000.00 to $15,400.00
for access to 280 area codes of data or more. The fee for accessing
area codes during the second six months of an entity's annual
subscription period also will increase, from $20.00 to $28.00. Further,
the Commission has decided to continue to provide all organizations
with free access to the first five area codes of data, and has decided
to continue to provide ``exempt'' organizations with free access to the
Registry, as well.
III. Discussion of Comments
The Commission received nine comments in response to the 2005 Fee
Rule NPR.\25\ Of the nine comments received, one comment was from a
consumer who favored providing free access to the entire Registry to
all entities ``in order to promote the widest possible distribution of
the Do Not Call Lists,'' thereby maximizing the ``positive effect of
the legislation.'' \26\ The remaining eight comments were submitted by
a mix of business and industry commenters, all of whom were opposed to
the increase in fees, but who were divided on whether the Commission
should reduce or eliminate the number of free area codes provided. In
addition, one commenter opposed the proposal to continue providing free
access to ``exempt'' organizations.\27\ Importantly, in addressing the
specific issues posed by the Commission, the commenters submitted only
limited data or information that differed from that previously
submitted in connection with fee rulemakings. Instead, the comments
primarily relied on information provided by the FTC as part of its 2005
Fee Rule NPR, and/or in previous rulemaking proceedings.\28\ Similarly,
the primary arguments submitted in response to the 2005 Fee Rule NPR's
proposal to raise fees also have been previously considered by the
Commission.\29\
---------------------------------------------------------------------------
\25\ See the appendix for a list of commenters.
\26\ See DM at 1.
\27\ See ARDA at 3.
\28\ For example, four of the commenters noted, as did the
Commission in the 2005 Fee Rule NPR, that 100 percent of the fees
are paid by a small minority of the entities that access the
Registry (e.g., only 11 percent of entities who access the Registry
actually pay anything for such access). See comments submitted by
FNBO, WF, WST, and ARDA. However, this same point was also made in
the 2004 Fee Rule proceeding: ``[m]any noted that only 11 percent of
all entities accessing the registry currently pay the entire cost of
the registry.'' See 69 FR at 45582.
\29\ As another example, comments also included suggestions that
the Commission use ``revenue from enforcement proceedings to
subsidize'' the Registry, and that the Commission should ``increase
efforts to identify those entities that are not accessing the
Registry,'' rather than increase the fees on those that are already
complying with the rules. See ARDA at 2-3. However, this same point
was also made in the 2004 Fee Rule proceeding: ``The FTC must
investigate whether there are entities that should be paying for
access but fail to do so'' and ``the FTC should use fines obtained
from enforcement actions to offset some of the fee increase.'' See
69 FR at 45581-45582. Two of the comments also question whether the
fees that are being collected are being used for purposes other than
to fund the Registry. See ARDA at 3, and DMA/ATA/NAA at 3. This same
issue was also raised in the 2004 Fee Rule proceeding: ``the fees
should be used only to cover the costs to operate the registry.''
See 69 FR at 45582.
---------------------------------------------------------------------------
While most of the comments submitted represented views previously
considered, some of the comments raised new points. For example, three
of the commenters expressed concern that fees are continuing to
increase each year.\30\ One comment also expressed opposition to any
increase in fees that might be attributable to the inclusion of
wireless telephone numbers on the Registry.\31\ This same comment
posited that the Commission should not adopt the increase in fees,
because it is ``unjustified at this time and unnecessary for continued
operation of the registry.'' This comment further stated that the
Commission is ``not required to collect fees up to [the] amount, which
was authorized by Congress,'' but rather, that the Commission should
only collect fees up to the amount necessary to fund and operate the
Registry, an amount this comment sets at $18.1 million.\32\
---------------------------------------------------------------------------
\30\ See FNBO at 2, ARDA at 1, and DMA/ATA/NAA at 2.
\31\ See DMA/ATA/NAA at 4.
\32\ Id. at 1-2.
---------------------------------------------------------------------------
The major themes that emerged from the record are summarized below.
1. Five Free Area Codes
In the 2005 Fee Rule NPR, the Commission proposed, at least for the
next annual period, to continue allowing all entities accessing the
Registry to obtain the first five area codes of data for free. The
Commission proposed to continue allowing such free access ``to limit
the burden placed on small businesses that only require access to a
small portion of the Registry.'' \33\ The Commission noted, as it has
in the past, that such a fee structure was consistent with the mandate
of the Regulatory Flexibility Act,\34\ which requires that to the
extent, if any, a rule is expected to have a significant economic
impact on a substantial number of small entities, agencies should
consider regulatory alternatives to minimize such impact. As stated in
the 2005 Fee Rule NPR and in the 2004 Fee Rule, ``the Commission
continues to believe that providing access to five area codes of data
for free is an appropriate compromise between the goals of equitably
and adequately funding the national registry, on one
[[Page 43276]]
hand, and providing appropriate relief for small businesses, on the
other.'' \35\ In addition, the Commission noted again, as it has in the
past, that requiring a large number of entities to pay a small fee for
access to five or fewer area codes from the Registry would place a
significant burden on the Registry, requiring the expenditure of even
more resources to handle properly that additional traffic.\36\
---------------------------------------------------------------------------
\33\ See 70 FR at 20850. See also 68 FR at 45140, and 69 FR at
45582.
\34\ 5 U.S.C. 601.
\35\ See 70 FR at 20850. See also 68 FR at 45141, and 69 FR at
45584.
\36\ See 70 FR at 20850.
---------------------------------------------------------------------------
While the 2005 Fee Rule NPR proposed to continue providing free
access to five area codes of data, the Commission nevertheless noted a
particular interest in comments regarding the propriety, impact, and
effects of these provisions on all entities accessing the Registry. In
this regard, the Commission specifically observed that ``the
implementation and enforcement costs are borne by a small percentage of
entities that access the registry,'' \37\ but ``that the cost of
accessing the registry is relatively modest.'' \38\ As an example the
Commission explained that, if it were to stop providing free access to
five or fewer area codes, the cost for accessing five area codes of
data could be as little as $185. Therefore, ``given the modest nature
of the fees, along with the increasing burden borne by those
organizations that do pay for access,'' \39\ the Commission noted its
particular interest in comments addressing these issues.
---------------------------------------------------------------------------
\37\ Id.
\38\ Id.
\39\ Id.
---------------------------------------------------------------------------
The Commission received seven comments that addressed the issue of
five free area codes. Four of the commenters opposed providing the
first five area codes of data at no charge, noting that the entire cost
of the Registry is borne by a small percentage of all entities who
access the system.\40\ They maintained that a fee structure that
requires so few organizations to bear such a significant portion of the
total costs is not equitable.\41\ Commenters also reiterated the
Commission's view that if the Commission were to stop providing free
access to five or fewer area codes, the cost for accessing five area
codes of data would be relatively modest.\42\ These commenters also
suggested that any additional burden to the system caused by the need
to collect additional payments should be factored into the fees,
assuming that this would not increase fees beyond the amounts proposed
in the 2005 Fee Rule NPR.\43\
---------------------------------------------------------------------------
\40\ See FNBO, WF, WST, and ARDA. These commenters relied solely
on the data presented in the Commission's 2005 Fee Rule NPR, noting,
for example, that only 11 percent of all entities accessing the
Registry currently pay the entire cost of the Registry. Commenters
also noted the complementary statistic, that approximately 89% of
all entities who access the Registry pay nothing. See, e.g., FNBO at
2; WST at 1 (noting that an even greater burden is borne by those
entities who purchase all area codes); and ARDA at 2.
\41\ See FNBO at 2; WST at 2; WF at 1; and ARDA at 1-2.
\42\ See WF at 1, stating that the ``cost of paying for access
to the first five area codes * * * would hardly be a significant
burden on even the smallest of businesses.'' See also WST at 2,
stating that ``this amount would not seem so exorbitant as to place
an undue burden on small business.''
\43\ See FNBO at 1, and WST at 2. FNBO stipulated, however,
``that the Commission should only allocate fees to all required
users if it can be done without increasing expenditures, which could
result in increased fees for everyone.''
---------------------------------------------------------------------------
These commenters suggested that eliminating access to five free
area codes would make the fee structure more equitable,\44\ and that
``the cost of the Registry should be borne by all users that are
required to access the Registry and absorbed as a cost of doing
business.'' \45\ Another alternative suggested by one commenter was
that the Commission continue to provide free access to five area codes,
``provided they qualify as a small business as defined by the Small
Business Administration.'' \46\ One commenter also suggested that the
Commission charge ``at least a reduced fee.'' \47\
---------------------------------------------------------------------------
\44\ Id.
\45\ See FNBO at 2.
\46\ See WST at 2.
\47\ See ARDA at 1-2.
---------------------------------------------------------------------------
On the other hand, three of the comments supported providing the
first five area codes of data at no charge.\48\ One commenter stated
that:
---------------------------------------------------------------------------
\48\ See NAR at 2, NADA at 1, and DMA/ATA/NAA at 1.
Removing the five area code exemption would disproportionately
impact [small] businesses as they would pay the same per area code
fee as larger telemarketers, that place a much heavier volume of
calls to phone numbers registered within these area codes. * * *
Removing the exemption altogether would have a significant impact on
our members and many other small and medium size businesses. * * *
These businesses have already assumed significant training, systems,
and other compliance costs associated with the National DNC rules
and other federal and state telemarketing restrictions.\49\
---------------------------------------------------------------------------
\49\ See NADA at 1-2. Two commenters specifically questioned the
relationship between the size of a business, and the number of area
codes such businesses need to access. See ARDA at 2, and NAR at 1.
ARDA and NAR suggested that some small businesses may need to place
a low volume of calls to many area codes, while some large
businesses may place a large volume of calls to a limited number of
area codes. Accordingly, ARDA and NAR suggested that the
Commission's current fee structure, based on area codes accessed,
does not adequately address small business issues. However, ARDA and
NAR proposed two opposing solutions to this problem: ARDA suggested
that all entities should be charged for all area codes they access,
thus eliminating the free access to five area codes, while NAR
suggested that small businesses should be provided free access to
the entire Registry, thus expanding the free access currently
provided.
Another commenter cited information from the Small Business
Administration's Office of Advocacy which it claimed shows that ``small
businesses represent 99 percent of American companies'' and ``very
small firms with fewer than 20 employees * * * spend 60 percent more
per employee than larger firms to comply with federal regulations.''
\50\ This commenter also pointed out that:
---------------------------------------------------------------------------
\50\ See NAR at 2.
in today's increasingly interconnected world, a business may be
small in size * * * but not be limited to a small geographic market
area * * * many small businesses, including real estate agents and
brokers, often have the need to call a limited number of consumers
who reside in a variety of states and/or area codes beyond their
primary five area code local calling region.\51\
---------------------------------------------------------------------------
\51\ See NAR at 1. NADA's comment echoed these concerns. NADA
also provided an example to illustrate the impact it felt would
occur: ``Since most major metropolitan areas cover more than one
area code, most businesses that serve that area would be affected if
the number of free area codes were reduced. For example, the DC
Metropolitan area consists of the following area codes: 202, 703,
571, 301, 240. If a small automobile dealership in this area were
limited to one or two free area codes on the registry, they would
have to pay to access the remaining area codes. Thus, any reduction
in the number of free area codes would likely have a significant
economic impact on small businesses.'' See NADA at 2.
After considering all of the comments submitted in this proceeding,
the Commission has determined to retain the provision allowing the free
access of up to five area codes. Although the Commission continues to
recognize that only a small percentage of the total number of entities
accessing the Registry pay for that access, these figures also
illustrate the large number of small businesses that likely would be
adversely affected by a change in the number of area codes provided at
no cost. In fact, over 50,000 entities have accessed five or fewer area
codes of the Registry. As observed in the 2005 Fee Rule NPR and the
2004 Fee Rule, the Commission continues to believe that most of these
entities--realtors, car dealers, community-based newspapers, and other
small businesses--are precisely the types of businesses that the
Regulatory Flexibility Act requires the FTC to consider when adopting
regulations.\52\ Moreover, the
[[Page 43277]]
Commission again finds significant the information submitted by
commenters discussing the disproportionate impact compliance with the
``do-not-call'' regulations may have on small businesses. In order to
lessen that impact, the Commission believes that retaining the five
free area code provision is appropriate.
---------------------------------------------------------------------------
\52\ The comments submitted in response to the 2005 Fee Rule NPR
do not offer any information or data to contradict this assertion.
In this regard, we note that the business and organization
commenters who support the proposal to continue providing five free
area codes, purport to represent more than 1.2 million members and/
or affiliates; many of whom appear to be small business entities.
See NAR, NADA, and DMA/ATA/NAA. However, those business and
organization commenters who oppose the proposal to continue
providing five free area codes appear to represent a much smaller
number of organizations, and do not purport to represent a
significant number of small business entities. However, the
Commission also notes that the volume of comments received does not
conclusively indicate the number of organizations that will be
affected by the rule change.
---------------------------------------------------------------------------
The Commission does not believe that the alternatives suggested
instead of the five free area code provision would be as effective in
minimizing the impact of the Do Not Call regulations on small
businesses and that these proposed alternatives may create undue
burdens that the current system does not impose. For example, the
suggestion to eliminate or reduce the number of area codes provided for
free would result in tens of thousands of entities that currently
access the Registry for free being required to pay the same fee to
access the Registry as much larger businesses. While, to some, such a
fee might seem modest, it nonetheless would represent an increase in
costs to more than 50,000 entities, most of whom are already
disproportionately impacted by the cost of complying with the ``do-not-
call'' regulations. Alternatively, the suggestion to base the fees on
the actual size of the entity requesting access would, as noted in the
2004 Fee Rule, require all entities to submit sensitive data concerning
annual income, number of employees, or other similar factors. It also
would require the FTC to develop an entirely new system to gather that
information, maintain it in a proper manner, and investigate those
claims to ensure proper compliance. As the Commission has previously
stated, such a system ``would present greater administrative,
technical, and legal costs and complexities than the Commission's
current exemptive proposal, which does not require any proof or
verification of that status.'' \53\ As a result, the Commission
continues to believe that the most appropriate and effective method to
minimize the impact of the Rule on small businesses is to provide
access to a certain number of area codes at no charge.
---------------------------------------------------------------------------
\53\ See 69 FR at 45583. See also 68 FR at 16243 n.53.
---------------------------------------------------------------------------
The comments also do not provide any new information to support a
change in the number of area codes to provide at no charge. Thus, the
Commission does not believe that any change in the current level of
five free area codes is necessary or appropriate. The Commission
continues to recognize that reducing the number of free area codes
would result in slightly lower fees charged to the entities that must
pay for access. At the same time, however, as noted previously, such a
change also would result in increased costs to thousands of small
businesses. On the other hand, the Commission is not persuaded that it
should increase the number provided at no charge, although it continues
to recognize that some small businesses located in large metropolitan
areas may need to make calls to more than five area codes. Obviously,
increasing the number of area codes provided at no charge would
decrease the pool of paying entities, and further increase the fees
that entities must pay. As a result, the Commission continues to
believe that allowing all entities to gain access to the first five
area codes of data from the Registry at no cost is appropriate.
2. Exempt Entity Access
In the 2005 Fee Rule NPR, the Commission also proposed to continue
allowing ``exempt'' organizations to obtain free access to the
Registry.\54\ The Commission stated its belief that any exempt entity,
voluntarily accessing the Registry to avoid calling consumers who do
not wish to receive telemarketing calls, should not be charged for such
access. Charging such entities access fees, when they are under no
legal obligation to comply with the ``do-not-call'' requirements of the
TSR, may make them less likely to obtain access to the Registry in the
future, resulting in an increase in unwanted calls to consumers.\55\
---------------------------------------------------------------------------
\54\ See supra footnote 21, citing 70 FR at 20849 n. 22, 69 FR
at 45585-45586, and 68 FR at 45144.
\55\ See 70 FR at 20851.
---------------------------------------------------------------------------
Three of the comments supported continuing to allow ``exempt''
entities to access the Registry at no charge, for the reasons set forth
in the 2005 Fee Rule NPR.\56\ One commenter opposed the provision,
claiming that fees are necessary in order to make it more difficult for
``bad actors'' \57\ to gain access to the system, as well as to help
``fund the Registry.'' \58\
---------------------------------------------------------------------------
\56\ See FNBO at 2, WF at 1, and WST at 2.
\57\ The Commission has found no evidence of widespread non-
compliance with the Do Not Call provisions of the TSR. See
discussion in section III.3.
\58\ See ARDA at 3.
---------------------------------------------------------------------------
The Commission continues to believe that if it charged exempt
entities for access to the Registry, many, if not most, of those
entities would no longer seek access.\59\ As a result, as noted in the
2004 Fee Rule, registered consumers would receive an increase in the
number of unwanted telephone calls. Exempt entities are, by definition,
under no legal obligation to access the Registry. Many are outside the
jurisdiction of the FTC. They are voluntarily accessing the Registry in
order to avoid calling consumers whose telephone numbers are
registered. They should be encouraged to continue doing so, rather than
be charged a fee for their efforts. The Commission will, therefore,
continue to allow such exempt entities to access the Registry at no
charge, after they have completed the required certification.
---------------------------------------------------------------------------
\59\ See also WF at 1, stating that ``it is safe to assume that
few if any such entities would access the list at all if they were
required to pay for such access.''
---------------------------------------------------------------------------
3. Imposition of the Fees and Use of the Funds
While the commenters disagreed on whether access to five area codes
of data should continue to be provided at no cost, they were unanimous
in their opposition to the increase in fees for access to the National
Do Not Call Registry. Generally, in addition to arguing that it would
be unfair to continue raising fees on the small percentage of entities
who pay for accessing the Registry, \60\ commenters also posited other
reasons in opposition to the increase.
---------------------------------------------------------------------------
\60\ See discussion starting in section III.1., above.
---------------------------------------------------------------------------
One commenter disapproved of the proposed increase in fees, stating
that ``the Commission should increase efforts to identify those
entities that are not accessing the Registry as required.'' \61\ Since
the opening of the Registry, the FTC has monitored industry payment for
access. We have found no evidence of widespread noncompliance with the
2004 Fee Rule. Moreover, no commenter has provided any concrete
information about such alleged noncompliance. As part of our law
enforcement activities, we continue to welcome any specific information
that can be provided in this regard. The FTC continues to conduct non-
public investigations of violations of the fee provision as well as
violations of the do-not-call provisions of the TSR, and will file law
enforcement actions addressing such violations when appropriate.\62\
---------------------------------------------------------------------------
\61\ See ARDA at 3.
\62\ As of April 21, 2005, the FTC had initiated seven DNC
Registry cases and obtained four settlements (two of those cases
were filed by the Department of Justice on the FTC's behalf). In
addition, the FTC had filed four cases against do-not-call scams.
---------------------------------------------------------------------------
[[Page 43278]]
This same commenter suggested that the FTC should use ``revenue
from enforcement actions'' to offset some of the fee increase.\63\
However, as stated in the 2004 Fee Rule, by statute, the FTC cannot
retain any civil penalties it obtains in such law enforcement actions.
Instead, all such civil penalties are deposited into the General Fund
of the United States Treasury.\64\ Accordingly, by law, any monies
obtained from enforcement actions cannot be used to offset fees.
---------------------------------------------------------------------------
\63\ See ARDA at 2.
\64\ See Miscellaneous Receipts Act, 31 U.S.C. 3302.
---------------------------------------------------------------------------
Two of the commenters also questioned whether fees that are being
collected are being used for purposes other than to fund the
Registry.\65\ One commenter stated that ``fees * * * should only be
used to fund enforcement and administrative costs directly associated
with the Registry,'' \66\ and another commenter stated that they ``are
concerned that fees are being used for telemarketing enforcement based
on fraud or other violations of the TSR, where there may also be an
incidental violation of the registry.'' \67\ These commenters also
noted the Commission's statements regarding industry's high rate of
compliance, and argued that it is unfair to continue increasing fees
and imposing enforcement costs on the very organizations that are most
compliant with the rules.\68\
---------------------------------------------------------------------------
\65\ See ARDA at 3 and DMA/ATA/NAA at 3.
\66\ See ARDA at 3.
\67\ See DMA/ATA/NAA at 3.
\68\ See ARDA at 2, and DMA/ATA/NAA at 3-4. DMA/ATA/NAA further
stated their belief that ``it is inappropriate for entities that
comply with the law to bear the enforcement costs of the FTC. If the
do-not-call registry is as successful as the FTC indicates, the FTC
itself or Congress should provide any additional necessary funding
increases over the current fee structure.'' See DMA/ATA/NAA at 3-4.
---------------------------------------------------------------------------
Consistent with the Implementation Act, and as stated in previous
rulemaking proceedings, \69\ the Commission has limited the amount of
fees to be collected to those needed to implement and enforce the ``do-
not-call'' provisions of the Amended TSR. The amount of fees collected
pursuant to this revised rule is intended to offset costs in the
following three areas: first, funds are collected to operate the
Registry. This operation includes items such as handling consumer
registration and complaints, telemarketer access to the Registry, state
access to the Registry, and the management and operation of law
enforcement access to appropriate information. Second, funds are
collected for law enforcement and educational activities, including
identifying targets, coordinating domestic and international
initiatives, challenging alleged violators, and consumer and business
education outreach. These law enforcement efforts are a significant
component of the total costs, given the large number of ongoing
investigations currently being conducted by the FTC, and the
substantial effort necessary to complete such investigations. Third,
funds are collected to cover infrastructure and administration costs
associated with the operation and enforcement of the Registry,
including information technology structural supports and distributed
mission overhead support costs for staff and non-personnel expenses
such as office space, utilities, and supplies.\70\
---------------------------------------------------------------------------
\69\ See 69 FR at 45582. See also 68 FR at 45141.
\70\ See 70 FR at 20850.
---------------------------------------------------------------------------
Three of the commenters also raised concerns regarding the pattern
of annual fee increases that the Commission has adopted.\71\ One
commenter stated that it was ``concerned, given the sharp increases in
the cost of the Registry over the first two years of activation, that
this cost will continue to increase and over time become a significant
cost that will ultimately be passed on to the consumer.'' \72\ Another
commenter raised the concern that:
---------------------------------------------------------------------------
\71\ See FNBO at 2, ARDA at 1, and DMA/ATA/NAA at 2.
\72\ See FNBO at 2. Interestingly, FNBO also notes ``that the
Registry's overall cost per year does not in and of itself
significantly impact our company's bottom line.'' Id.
As the user fee increases, it is inevitable that compliant
sellers will be motivated to (1) reduce or stop outbound
telemarketing; or (2) avoid paying the fees in violation of the
rules. Either event will reduce the number of sellers (and/or area
codes accessed by the sellers), which will result in lower fees, and
in turn result in more fee increases in the future to be paid by
only the most profitable businesses.\73\
---------------------------------------------------------------------------
\73\ See ARDA at 1-2.
A third commenter stated that while fees have increased, the
``Commission has not indicated in the NPRM that costs to run the
registry have increased or that enforcement or other costs have
increased.'' \74\ The Commission has increased the fees charged to
telemarketers for accessing the Registry; in 2004, this was primarily
because fewer area codes of information were purchased than were
anticipated in the 2003 Fee Rule.\75\ As part of the 2004 Fee Rule
proceedings, the Commission reviewed the fees that had been collected,
along with data about the number of area codes that had been purchased,
and revised its initial assumptions accordingly. As a result, the
Commission increased the fees based on the latest information then
available.\76\ Similarly, in the 2005 Fee Rule NPR, the Commission
analyzed the current information, and issued a proposal that reflected
both the amount that needed to be raised, \77\ along with the number of
area codes that were projected to be purchased. As a result, the fees
that were proposed in the 2005 Fee Rule NPR represented an increase
over the fees adopted in the 2004 Fee Rule.
---------------------------------------------------------------------------
\74\ See DMA/ATA/NAA at 2.
\75\ See 68 FR at 45140. As stated in the 2003 Fee Rule, the
fees were ``based on the best information available to the agency at
[that] time.'' However, as the Commission noted, we ``received
virtually no comments providing information on the validity of the
Commission's assumptions.''
\76\ See 69 FR at 45584.
\77\ The Commission views the current Congressional
authorization as an instruction regarding the fees to be collected.
---------------------------------------------------------------------------
In this regard, one commenter stated its belief that this increase
is unjustified and only reflects the ``increase in the annual
congressional authorization.'' \78\ However, an increase in the amount
of funding required to cover the administrative costs of the Registry,
while a component of the fee increase, is not the only component. As in
the 2004 Fee Rule, a second major factor that influenced the increase
proposed in the 2005 Fee Rule NPR was the number of area codes that
were purchased by entities accessing the Registry. The fees that the
Commission proposed in the 2005 Fee Rule NPR reflect both the amount of
funds necessary to implement and enforce the Registry, as well as the
number of area codes that the Commission assumes will be purchased by
entities accessing the Registry, based on the Commission's current
experience. Importantly, the Commission believes that, through
experience, it will continue to obtain better information about the
number of entities accessing the Registry, their purchasing behavior,
and the costs associated with running the Registry. The Commission
expects this experience and improved information to result in more
stable and predictable fee rates.
---------------------------------------------------------------------------
\78\ See DMA/ATA/NAA at 2. The Commission also notes that DMA/
ATA/NAA stated that Congress authorized the Commission to collect
$18.1 million in offsetting fees in 2004. However, Congress actually
authorized the Commission to collect $23.1 million in the 2004
Appropriations Act. However, in its rulemaking, the Commission
stated that it was only seeking $18.1 million in offsetting fees
during Fiscal year 2004 because of the $5.1 million from the 2003
Fee Rule that the Commission collected in Fiscal Year 2004. See 69
FR at 23702 n. 4.
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[[Page 43279]]
In addition, one commenter also expressed opposition to any
increase in fees that might be attributable to the inclusion of
---------------------------------------------------------------------------
wireless telephone numbers on the Registry, stating that:
Telemarketing calls to wireless numbers without consent are
prohibited under the FCC's rules implementing the Telephone Consumer
Protection Act of 1991 (``TCPA''), 47 U.S.C. 227 et seq. Thus, as a
legal matter, consumers receive no fewer telemarketing calls by
placing their wireless numbers on the registry. Because such calls
already are prohibited in the first instance, there is no basis for
allowing such numbers to be placed on the registry.\79\
\79\ See DMA/ATA/NAA at 4.
However, this commenter overstated the nature of the prohibition
enacted by the Federal Communication Commission (``FCC''). The FCC's
prohibitions on telemarketing calls placed to wireless telephone
numbers, proscribe the use of an ``automatic telephone dialing system
or an artificial or prerecorded message'' to place such calls.\80\ In
this regard, the Commission has received no information that would
suggest that those engaged in telemarketing activities only use the
aforementioned technology to place calls to consumers. The TSR's
prohibitions concerning fraudulent or abusive telemarketing acts or
practices apply to both land line and wireless telephones, and the
Registry has never differentiated between the two. At this point, the
Commission sees no reason to make such a distinction.
---------------------------------------------------------------------------
\80\ See FCC Telemarketing and Telephone Solicitation Rules, 47
CFR 64.1200 (2005).
---------------------------------------------------------------------------
Accordingly, the Commission concludes that an increase in fees is
necessary.
IV. Calculation of the Revised Fees
As previously stated, the Commission proposed in the 2005 Fee Rule
NPR to increase the fees charged to access the National Do Not Call
Registry to $56 annually for each area code of data requested, with the
maximum annual fee capped at $15,400 for entities accessing 280 area
codes of data or more. The Commission based this proposal on the total
number of entities that accessed the Registry from March 1, 2004
through February 28, 2005.\81\ The Commission noted, however, that it
would adjust the final revised fee to reflect the actual number of
entities that had accessed the Registry at the time of issuance of the
Final Rule.\82\
---------------------------------------------------------------------------
\81\ At that time, more than 60,800 entities had accessed all or
part of the information in the Registry. Approximately 1,300 of
these entities are ``'exempt''and therefore have accessed the
Registry at no charge. An additional 52,700 entities have accessed
five or fewer area codes of data, also at no charge. As a result,
approximately 6,700 entities have paid for access to the Registry,
with slightly less than 1,100 entities paying for access to the
entire Registry. See 70 FR at 20849-20850.
\82\ Id. at 20850 n.24.
---------------------------------------------------------------------------
As of June 1, 2005, there have been no significant or material
changes in the number of entities that have accessed the Registry since
the Commission issued the 2005 Fee Rule NPR.
Therefore, based on the figures contained in the 2005 Fee Rule NPR,
and the need to raise $21.9 million in fees to offset costs it expects
to incur in this Fiscal Year for implementing and enforcing the ``do-
not-call'' provisions of the Amended TSR, the Commission is revising
the fees to be charged for access to the Registry as follows: the fee
charged for each area code of data will be $56 per year, with the first
five area codes provided to each entity at no charge. ``Exempt''
organizations, as defined by the Do Not Call regulations, will continue
to be allowed access to the Registry at no charge. The maximum amount
that will be charged any single entity will be $15,400, which will be
charged to any entity accessing 280 area codes of data or more. The fee
charged to entities requesting access to additional area codes of data
during the second six months of their annual period will be $28.
The Commission establishes September 1, 2005, as the effective date
for this rule change. Thus, the revised fees will be charged to all
entities that renew their subscription account number after their
current subscription has expired.
V. Paperwork Reduction Act
Pursuant to the Paperwork Reduction Act,\83\ the Office of
Management and Budget (``OMB'') has approved the information collection
requirements in the 2004 Fee Rule and assigned OMB Control Number 3084-
0097. The rule amendment, as discussed above, provides for an increase
in the fees that are charged for accessing the National Do Not Call
Registry, but creates no new recordkeeping, reporting, or third-party
disclosure requirements that would be subject to review and approval by
OMB pursuant to the Paperwork Reduction Act.
---------------------------------------------------------------------------
\83\ 44 U.S.C. 3501-3520.
---------------------------------------------------------------------------
VI. Regulatory Flexibility Act
The Regulatory Flexibility Act (``RFA''), 5 U.S.C. 601 et seq.,
requires the FTC to provide an Initial Regulatory Flexibility Analysis
(``IRFA'') with its proposed rule, and a Final Regulatory Flexibility
Analysis (``FRFA'') with its final rule, unless the FTC certifies that
the rule will not have a significant economic impact on a substantial
number of small entities. As explained in the 2005 Fee Rule NPR and
this Statement, the Commission hereby certifies that it does not expect
that its Final Amended Fee Rule will have the threshold impact on small
entities. As discussed above, this Amended Rule specifically charges no
fee for access to data included in the Registry from one to five area
codes. As a result, the Commission anticipates that many small
businesses will be able to access the Registry without having to pay
any annual fee. Thus, it is unlikely that there will be a significant
burden on small businesses resulting from the adoption of the proposed
revised fees. Nonetheless, the Commission published an IRFA with the
2005 Fee Rule NPR, and is also publishing a FRFA with its Final Amended
Fee Rule below, in the interest of further explaining its
determination, even though the Commission believes that it is not
required to publish such analyses.
A. Reasons for Consideration of Agency Action
The Amended Final Fee Rule has been considered and adopted pursuant
to the requirements of the Implementation Act and the 2005
Appropriations Act, which authorize the Commission to collect fees
sufficient to implement and enforce the ``do-not-call'' provisions of
the Amended TSR.
B. Statement of Objectives and Legal Basis
As explained above, the objective of the Amended Final Fee Rule is
to collect sufficient fees from entities that must access the National
Do Not Call Registry. The legal authority for this Rule is the 2005
Appropriations Act, the Implementation Act, and the Telemarketing Act.
C. Description of Small Entities to Which the Rule Will Apply
The Small Business Administration has determined that
``telemarketing bureaus'' with $6 million or less in annual receipts
qualify as small businesses.\84\ Similar standards, i.e., $6 million or
less in annual receipts, apply for many retail businesses that may be
``sellers'' and subject to the revised fee provisions set forth in this
Amended Final Rule. In addition, there may be other types of
businesses, other than retail establishments, that would be ``sellers''
subject to this rule.
---------------------------------------------------------------------------
\84\ See 13 CFR 121.201.
---------------------------------------------------------------------------
To date more than 50,000 entities have accessed five or fewer area
codes
[[Page 43280]]
of data from the Registry at no charge.\85\ While not all of these
entities may qualify as small businesses, and some small businesses may
be required to purchase access to more than five area codes of data,
the Commission believes that this is the best estimate of the number of
small entities that will be subject to this Amended Final Rule. In any
event, as explained elsewhere in this Statement, the Commission
believes that, to the extent the Amended Final Fee Rule has an economic
impact on small business, the Commission has adopted an approach that
minimizes that impact to ensure that it is not substantial, while
fulfilling the legal mandate of the Implementation Act and 2005
Appropriations Act to ensure that the telemarketing industry supports
the cost of the National Do Not Call Registry.
---------------------------------------------------------------------------
\85\ See supra note 81.
---------------------------------------------------------------------------
D. Projected Reporting, Recordkeeping and Other Compliance Requirements
The information collection activities at issue in this Amended
Final Rule consist principally of the requirement that firms,
regardless of size, that access the Registry submit minimal identifying
and payment information, which is necessary for the FTC to collect the
required fees. The cost impact of that requirement and the labor or
professional expertise required for compliance with that requirement
were discussed in Section VI of the 2005 Fee Rule NPR.\86\
---------------------------------------------------------------------------
\86\ See 70 FR at 20851.
---------------------------------------------------------------------------
As for compliance requirements, small and large entities subject to
the Amended Fee Rule will pay the same fees to obtain access to the
National Do Not Call Registry in order to reconcile their calling lists
with the phone numbers maintained in the Registry. As noted earlier,
however, compliance costs for small entities are not anticipated to
have a significant impact on small entities, to the extent the
Commission believes that compliance costs for those entities will be
largely minimized by their ability to obtain data for up to five area
codes at no charge.
E. Duplication With Other Federal Rules
None.
F. Discussion of Significant Alternatives
The Commission discussed the proposed alternatives in Section III,
above.
List of Subjects in 16 CFR Part 310
Telemarketing, Trade practices.
VII. Final Rule
0
Accordingly, for the reasons set forth above, the Commission hereby
amends part 310 of title 16 of the Code of Federal Regulations as
follows:
PART 310--TELEMARKETING SALES RULE
0
1. The authority citation for part 310 continues to read as follows:
Authority: 15 U.S.C. 6101-6108.
0
2. Revise Sec. 310.8(c) and (d) to read as follows:
Sec. 310.8 Fee for access to the National Do Not Call Registry.
* * * * *
(c) The annual fee, which must be paid by any person prior to
obtaining access to the National Do Not Call Registry, is $56 per area
code of data accessed, up to a maximum of $15,400; provided, however,
that there shall be no charge for the first five area codes of data
accessed by any person, and provided further, that there shall be no
charge to any person engaging in or causing others to engage in
outbound telephone calls to consumers and who is accessing the National
Do Not Call Registry without being required under this Rule, 47 CFR
64.1200, or any other federal law. Any person accessing the National Do
Not Call Registry may not participate in any arrangement to share the
cost of accessing the registry, including any arrangement with any
telemarketer or service provider to divide the costs to access the
registry among various clients of that telemarketer or service
provider.
(d) After a person, either directly or through another person, pays
the fees set forth in Sec. 310.8(c), the person will be provided a
unique account number which will allow that person to access the
registry data for the selected area codes at any time for twelve months
following the first day of the month in which the person paid the fee
(``the annual period''). To obtain access to additional area codes of
data during the first six months of the annual period, the person must
first pay $56 for each additional area code of data not initially
selected. To obtain access to additional area codes of data during the
second six months of the annual period, the person must first pay $28
for each additional area code of data not initially selected. The
payment of the additional fee will permit the person to access the
additional area codes of data for the remainder of the annual period.
* * * * *
By direction of the Commission.
Donald S. Clark,
Secretary.
Appendix--List of Acronyms for Commenters to the TSR 2005 Fee Rule
Proposal
------------------------------------------------------------------------
Commenter Acronym
------------------------------------------------------------------------
1. American Resort Development ARDA
Association.
2. Darian Miller....................... DM
3. Direct Marketing Association, Inc. DMA/ATA/NAA
(DMA), American Teleservices
Association (ATA), and Newspaper
Association of America (NAA).
4. First National Bank of Omaha........ FNBO
5. Influent, Inc....................... INF
6. National Association of Realtors.... NAR
7. National Automobile Dealers NADA
Association.
8. Wells Fargo & Company............... WF
9. West Corporation.................... WST
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[[Page 43281]]
[FR Doc. 05-14905 Filed 7-26-05; 8:45 am]
BILLING CODE 6750-01-P
