Self-Regulatory Organizations; NYSE Arca, Inc., Notice of Filing of Proposed Rule Change and Amendment Nos. 1 and 2 Thereto Requiring ETP Holders To Participate in the Federal Trade Commission's National Do-Not-Call Registry, 38957-38961 [E6-10685]
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Federal Register / Vol. 71, No. 131 / Monday, July 10, 2006 / Notices
Exchange believes that the proposed
rule change will increase the protection
of investors by enabling investors who
do not want to receive telephone
solicitations from OTP Firms or OTP
Holders to receive the benefits and
protections of the national do-not-call
registry.
B. Self-Regulatory Organization’s
Statement on Burden on Competition
The Exchange does not believe that
the proposed rule change will impose
any burden on competition that is not
necessary or appropriate in furtherance
of the purposes of the Exchange Act.
C. Self-Regulatory Organization’s
Statement on Comments on the
Proposed Rule Change Received From
Members, Participants, or Others
Written comments on the proposed
rule change were neither solicited nor
received by the Exchange.
III. Date of Effectiveness of the
Proposed Rule Change and Timing for
Commission Action
Within 35 days of the date of
publication of this notice in the Federal
Register or within such longer period (i)
as the Commission may designate up to
90 days of such date if it finds such
longer period to be appropriate and
publishes its reasons for so finding or
(ii) as to which the self-regulatory
organization consents, the Commission
will:
(A) By order approve such rule
change, or
(B) Institute proceedings to determine
whether the proposed rule change
should be disapproved.
IV. Solicitation of Comments
Electronic Comments
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• Use the Commission’s Internet
comment form (https://www.sec.gov/
rules/sro.shtml); or
• Send an e-mail to rulecomments@sec.gov.
• Please include File Number SR–
PCX–2005–54 on the subject line.
• Send paper comments in triplicate
to Nancy M. Morris, Secretary,
Securities and Exchange Commission,
Station Place, 100 F Street, NE.,
Washington, DC 20549–1090.
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SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–54079; File No. SR–PCX–
2005–97]
Self-Regulatory Organizations; NYSE
Arca, Inc., Notice of Filing of Proposed
Rule Change and Amendment Nos. 1
and 2 Thereto Requiring ETP Holders
To Participate in the Federal Trade
Commission’s National Do-Not-Call
Registry
June 30, 2006.
Paper Comments
17:10 Jul 07, 2006
For the Commission, by the Division of
Market Regulation, pursuant to delegated
authority.11
Nancy M. Morris,
Secretary.
[FR Doc. E6–10681 Filed 7–7–06; 8:45 am]
BILLING CODE 8010–01–P
Interested persons are invited to
submit written data, views, and
arguments concerning the foregoing,
including whether the proposed rule
change, as amended, is consistent with
the Exchange Act. Comments may be
submitted by any of the following
methods:
VerDate Aug<31>2005
All submissions should refer to File
Number SR–PCX–2005–54. This file
number should be included on the
subject line if e-mail is used. To help the
Commission process and review your
comments more efficiently, please use
only one method. The Commission will
post all comments on the Commission’s
Internet Web site (https://www.sec.gov/
rules/sro.shtml). Copies of the
submission, all subsequent
amendments, all written statements
with respect to the proposed rule
change that are filed with the
Commission, and all written
communications relating to the
proposed rule change between the
Commission and any person, other than
those that may be withheld from the
public in accordance with the
provisions of 5 U.S.C. 552, will be
available for inspection and copying in
the Commission’s Public Reference
Section, Station Place, 100 F Street, NE.,
Washington, DC 20549–1090. Copies of
such filing also will be available for
inspection and copying at the principal
office of the Exchange. All comments
received will be posted without change;
the Commission does not edit personal
identifying information from
submissions. You should submit only
information that you wish to make
available publicly. All submissions
should refer to File Number SR–PCX–
2005–54 and should be submitted on or
before July 31, 2006.
Pursuant to section 19(b)(1) of the
Securities Exchange Act of 1934 (the
‘‘Act’’) 1 and Rule 19b–4 thereunder,2
notice is hereby given that on May 18,
2006, NYSE Arca, Inc. (‘‘NYSE Arca’’ or
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11 17
CFR 200.30–3(a)(12).
U.S.C. 78s(b)(1).
2 17 CFR 240.19b–4.
1 15
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‘‘Exchange’’) 3 filed with the Securities
and Exchange Commission
(‘‘Commission’’ or ‘‘SEC’’) the proposed
rule change as described in Items I, II
and III below, which Items have been
prepared by the self-regulatory
organization. On May 26, 2006, NYSE
Arca filed Amendment No. 1 to the
proposed rule change.4 On June 21,
2006, NYSE Arca filed Amendment No.
2 to the proposed rule change.5 The
Commission is publishing this notice to
solicit comments on the proposed rule
change from interested persons.
I. Self-Regulatory Organization’s
Statement of the Terms of Substance of
the Proposed Rule Change
The Exchange, through its whollyowned subsidiary NYSE Arca Equities,
Inc. (‘‘NYSE Arca Equities’’ or the
‘‘Corporation’’), proposes to amend
NYSE Arca Equities Rule 9.20. The
proposed rule change would require
ETP Holders to participate in the
Federal Trade Commission’s (‘‘FTC’’)
national do-not-call registry. The
current text of Arca Equities Rule
9.20(b) would be deleted. The text of the
proposed rule change is set forth below.
Italics indicate new text.
NYSE Arca Equities Rules
RULE 9 CONDUCTING BUSINESS
WITH THE PUBLIC
*
*
*
*
*
Telemarketing
9.20(b) (1) General Telemarketing
Requirements. No ETP Holder or
associated person shall make any
telephone solicitation, as defined in
Section 9.20(b)(10)(B) to:
(A) Any residence of a person before
the hour of 8 a.m. or after 9 p.m. (local
time at the called party’s location),
unless:
(i) The ETP Holder has an established
business relationship with the person
pursuant to Section 9.20(b)(10)(A);
(ii) The ETP Holder has received that
person’s prior express invitation or
permission; or
3 On March 6, 2006, the Pacific Exchange, Inc.
filed a rule proposal, effective upon filing, to amend
its rules to reflect these name changes: from Pacific
Exchange, Inc. to NYSE Arca, Inc.; from PCX
Equities, Inc. to NYSE Arca Equities, Inc.; from PCX
Holdings, Inc., to NYSE Arca Holdings, Inc.; and
from the Archipelago Exchange, L.L.C. to NYSE
Arca, L.L.C. See File No. SR–PCX–2006–24 (March
6, 2006). This proposal has been amended to reflect
these name changes.
4 In Amendment No. 1, NYSE Arca partially
amended the text of proposed amended NYSE Arca
Equities Rule 9.20 and made conforming and
technical changes to the original filing.
5 In Amendment No. 2, NYSE Arca made
additional changes to the text of proposed amended
NYSE Arca Equities Rule 9.20 and to the original
filing.
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(iii) The person called is a broker or
dealer.
(B) Any person that previously has
stated that he or she does not wish to
receive an outbound telephone call
made by or on behalf of the ETP Holder;
or
(C) Any person who has registered his
or her telephone number on the Federal
Trade Commission’s national do-notcall registry.
(2) National Do-Not-Call Registry
Exceptions. An ETP Holder will not be
liable for violating Section 9.20(b)(1)(C)
if:
(A) The ETP Holder has an
established business relationship with
the recipient of the call. A person’s
request to be placed on an ETP Holder’s
firm-specific do-not-call list terminates
the established business relationship
exception to that national do-not-call
registry provision for that ETP Holder
even if the person continues to do
business with the ETP Holder;
(B) The ETP Holder has obtained the
person’s prior express invitation or
permission. Such permission must be
evidenced by a signed, written
agreement between the person and the
ETP Holder that states that the person
agrees to be contacted by the ETP
Holder and includes the telephone
number to which the calls may be
placed; or
(C) The associated person making the
call has a personal relationship with the
recipient of the call.
(3) Safe Harbor Provision. The ETP
Holder or associated person making
telephone solicitations will not be liable
for violating Section 9.20(b)(1)(C) if the
ETP Holder or associated person
demonstrates that the violation is the
result of an error and that as part of the
ETP Holder’s routine business practice
it meets the following standards:
(A) The ETP Holder has established
and implemented written procedures to
comply with the national do-not-call
rules;
(B) The ETP Holder has trained its
personnel, and any entity assisting in its
compliance, in procedures established
pursuant to the national do-not-call
rules;
(C) The ETP Holder has maintained
and recorded a list of telephone
numbers that it may not contact; and
(D) The ETP Holder uses a process to
prevent telephone solicitations to any
telephone number on any list
established pursuant to the do-not-call
rules, employing a version of the
national do-not-call registry obtained
from the administrator of the registry no
more than thirty-one (31) days prior to
the date any call is made, and
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maintains records documenting this
process.
(4) Procedures. Prior to engaging in
telemarketing, an ETP Holder must
institute procedures to comply with
Section 9.20(b)(1). Such procedures
must meet the minimum standards:
(A) Written policy. The ETP Holder
must have a written policy available
upon demand for maintaining a do-notcall list.
(B) Training of personnel engaged in
telemarketing. Personnel engaged in any
aspect of telemarketing must be
informed and trained in the existence
and use of the do-not-call list, including
the policies and procedures of the firm
regarding communication with the
public.
(C) Recording, honoring do-not-call
requests. If an ETP Holder receives a
request from a person not to receive
calls from that ETP Holder, the ETP
Holder must record the request and
place the person’s name, if provided,
and telephone number on the firm’s donot-call list at the time the request is
made. The ETP Holder must honor a
person’s do-not-call request within a
reasonable time from the date such
request is made. This period may not
exceed 30 days from the date of such
request. If such requests are being
recorded or maintained by a party other
than the ETP Holder on whose behalf
the telemarketing call is made, the ETP
Holder on whose behalf the
telemarketing call is made will be liable
for any failure to honor the do-not-call
request.
(D) Identification of sellers and
telemarketers. An ETP Holder or person
associated with an ETP Holder making
a call for telemarketing purposes must
provide the called party with the name
of the individual caller, the name of the
ETP Holder, an address or telephone
number at which the ETP Holder may be
contacted, and that the purpose of the
call is to solicit the purchase or sale of
securities or a related service. The
telephone number provided may not be
a 900 number or any other number for
which charges exceed local or long
distance transmission charges.
(E) Affiliated persons or entities. In
the absence of a specific request by the
person to the contrary, a person’s donot-call request shall apply to the ETP
Holder making the call, and will not
apply to affiliated entities unless the
consumer reasonably would expect
them to be included given the
identification of the caller and the
product or service being advertised.
(F) Maintenance of do-not-call lists.
An ETP Holder making calls for
telemarketing purposes must maintain a
record of the caller’s request not to
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receive further telemarketing calls. A
firm-specific do-not-call request must be
honored for five years from the time the
request is made.
(5) Wireless Communications.
(A) ETP Holders are prohibited from
using an automatic telephone dialing
system or an artificial or prerecorded
voice when initiating a telephone call to
any telephone number assigned to a
paging service, cellular telephone
service, specialized mobile radio
service, or other radio common carrier
service, or any service for which the
called party is charged for the call.
(B) The provisions set forth in this
rule are applicable to ETP Holders
telemarketing or making telephone
solicitations calls to wireless telephone
numbers.
(6) Outsourcing Telemarketing. If an
ETP Holder uses another entity to
perform telemarketing services on its
behalf, the ETP Holder remains
responsible for ensuring compliance
with all provisions contained in this
rule.
(7) Pre-Recorded Messages.
(A) An ETP Holder may not initiate
any telephone call to any residence
using an artificial or prerecorded voice
to deliver a message, without the prior
express consent of the person called,
unless the call:
(i) Is not made for a commercial
purpose;
(ii) Is made for a commercial purpose,
but does not include or introduce an
unsolicited advertisement or constitute
a telephone solicitation; or
(iii) Is made to any person with whom
the ETP Holder has an established
business relationship at the time the call
is made.
(B) All artificial or prerecorded
telephone messages shall:
(i) At the beginning of the message,
state clearly the identity of the ETP
Holder that is responsible for initiating
the call. The ETP Holder responsible for
initiating the call must state the name
under which the ETP Holder is
registered to conduct business with the
applicable State Corporation
Commission (or comparable regulatory
authority); and
(ii) During or after the message, the
ETP Holder must state clearly the
telephone number (other than that of
the autodialer or prerecorded message
player that placed the call) of such ETP
Holder. The telephone number provided
may not be a 900 number or any other
number for which charges exceed local
or long distance transmission charges.
(iii) For telemarketing messages to a
residence, such telephone number,
mentioned in Section 9.20(b)(7)(B)(ii)
above, must permit any person to make
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a do-not-call request during regular
business hours for the duration of the
telemarketing campaign.
(8) Telephone Facsimile or Computer
Advertisements
No ETP Holder or associated person
may use a telephone facsimile machine,
computer or other device to send an
unsolicited advertisement to a
telephone facsimile machine, computer
or other device.
(A) For purposes of Section 9.20(b)(8)
of this rule, a facsimile advertisement is
not ‘‘unsolicited’’ if the recipient has
granted the ETP Holder or associated
person prior express invitation or
permission to deliver the advertisement.
Such express invitation or permission
must be evidenced by a signed, written
statement that includes the facsimile
number to which any advertisements
may be sent and clearly indicates the
recipient’s consent to receive such
facsimile advertisements from the ETP
Holder or associated person.
(B) ETP Holders and associated
persons must clearly mark, in a margin
at the top or bottom of each page of the
transmission, the date and time it is sent
and an identification of the ETP Holder
or associated person sending the
message and the telephone number of
the sending machine or of the ETP
Holder or associated person sending the
transmission.
(9) Caller Identification Information
(A) Any ETP Holder that engages in
telemarketing, as defined in Section
9.20(b)(10)(B) of this rule, must transmit
caller identification information. Such
caller identification information must
include either the Calling Party Number
(‘‘CPN’’) or the calling party’s billing
number, also known as the Charge
Number (‘‘ANI’’), and, when available
from the telephone carrier, the name of
the ETP Holder. The telephone number
so provided must permit any person to
make a do-not-call request during
regular business hours. Whenever
possible, CPN is the preferred number
and should be transmitted.
(B) Any ETP Holder that engages in
telemarketing, as defined in Section
9.20(b)(10)(B) of this rule, is prohibited
from blocking the transmission of caller
identification information.
(C) Provision of caller identification
information does not obviate the
requirement for a caller to verbally
supply identification information during
a call.
(10) Definitions.
(A) For purposes of Section 9.20, an
ETP Holder has an ‘‘established
business relationship’’ with a person if:
(i) The person has made a financial
transaction or has a security position, a
money balance, or account activity with
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17:10 Jul 07, 2006
Jkt 208001
the ETP Holder or at a clearing firm that
provides clearing services to such ETP
Holder within the previous 18 months
immediately preceding the date of the
telemarketing call;
(ii) The ETP Holder is the brokerdealer of record for an account of the
person within the previous 18 months
immediately preceding the date of the
telemarketing call; or
(iii) The person has contacted the ETP
Holder to inquire about a product
service offered by the ETP Holder within
the previous three months immediately
preceding the date of the telemarketing
call, which relationship has not been
previously terminated by either party.
A person’s established business
relationship with an ETP Holder does
not extend to the ETP Holder’s affiliated
entities unless the person would
reasonably expect them to be included,
given the nature and type of products or
services offered by the affiliate and the
identity of the affiliate. Similarly, a
person’s established business
relationship with an ETP Holder’s
affiliate does not extend to the ETP
Holder unless the person would
reasonably expect the ETP Holder to be
included. A person’s request to be
placed on an ETP Holder’s firm-specific
do-not-call list as set forth in Section
9.20(b)(1)(B) of this rule terminates an
established business relationship for
purposes of telemarketing and
telephone solicitation, even if the person
continues to do business with the ETP
Holder.
(B) The terms ‘‘telemarketing’’ and
‘‘telephone solicitation’’ mean the
initiation of a telephone call or message
for the purpose of encouraging the
purchase or rental of, or investment in,
property, goods, or services, which is
transmitted to any person.
(C) The term ‘‘personal relationship’’
means any family member, friend or
acquaintance of the telemarketer
making the call.
(D) The term ‘‘account activity’’ shall
include, but not be limited to,
purchases, sales, interest credits or
debits, charges or credits, dividend
payments, transfer activity, securities
receipts or deliveries, and/or journal
entries relating to securities or funds in
the possession or control of the ETP
Holder.
(E) The term ‘‘broker-dealer of record’’
refers to the broker-dealer identified on
a customer’s account application for
accounts held directly at a mutual fund
or variable insurance product issuer.
(F) The terms ‘‘automatic telephone
dialing system’’ and ‘‘autodialer’’ mean
equipment which has the capacity to
store or produce telephone numbers to
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38959
be called using a random or sequential
number generator and to dial such
numbers.
(G) The term ‘‘telephone facsimile
machine’’ means equipment which has
the capacity to transcribe text or images
(or both) from paper, into an electronic
signal and to transmit that signal over
a regular telephone line, or to transcribe
text or images (or both) from an
electronic signal received over a regular
telephone line onto paper.
(H) The term ‘‘unsolicited
advertisement’’ means any material
advertising the commercial availability
or quality of any products or services
which is transmitted to any person
without that person’s prior express
invitation or permission.
Rule 9.20(c)–(d)—No Change.
*
*
*
*
*
II. Self-Regulatory Organization’s
Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule
Change
In its filing with the Commission, the
Exchange included statements
concerning the purpose of and basis for
the proposed rule change and discussed
any comments it received on the
proposed rule change. The text of these
statements may be examined at the
places specified in Item IV below. The
Exchange has prepared summaries, set
forth in sections (A), (B) and (C) below,
of the most significant aspects of such
statements.
A. Self-Regulatory Organization’s
Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule
Change
1. Purpose
The purpose of this Amendment No.
2 is to make the proposed rule
consistent with NYSE Rule 404A by
including provisions concerning general
telemarketing requirements, procedures,
wireless communications, outsourcing
telemarketing, pre-recorded messages,
telephone facsimile or computer
advertisements and caller identification.
This Amendment No. 2 replaces the
original filing in its entirety. In 2003,
the FTC, via its Telemarketing Sales
Rule, and the Federal Communications
Commission (‘‘FCC’’), via its
Miscellaneous Rules Relating to
Common Carriers, established
requirements for sellers and
telemarketers to participate in a national
do-not-call registry.6 Since June 2003,
6 The do-not-call rules of the FCC and FTC are
very similar in terms of substance, in part, because
Congress directed the FCC to consult with the FTC
to maximize consistency between their respective
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consumers have been able to enter their
home telephone numbers into the
national do-not-call registry, which is
maintained by the FTC. Under rules of
the FTC and FCC, sellers and
telemarketers generally are prohibited
from making telephone solicitations to
consumers whose numbers are listed in
the national do-not-call registry. The
FCC’s do-not-call rules apply to brokerdealers while the FTC’s rules do not.7
In February 2005, the SEC requested
that NYSE Arca adopt the proposed
telemarketing rules to require ETP
Holders to participate in the do-not-call
registry.8 Because broker-dealers are
subject to the FCC’s do-not-call rules,
NYSE Arca modeled its rules in this
area after those of the FCC and codified
these do-not-call requirements in NYSE
Arca Equities Rule 9.20(b), with minor
modifications tailoring the rules to
broker-dealer activities and the
securities industry. Current NYSE Arca
Rule 9.20(b) will be deleted and
replaced in its entirety with proposed
Rule 9.20(b) set forth in Exhibit 5.
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Safe Harbor Provision for the National
Do-Not-Call Registry Requirements
The FCC and FTC each provided
persons subject to their respective donot-call rules a ‘‘safe harbor’’ providing
that a seller or telemarketer is not liable
for a violation of the do-not-call rules
that is the result of an error if the seller
or telemarketer’s routine business
practice meets certain standards. The
Corporation has provided a parallel safe
harbor in paragraph (3) of proposed
NYSE Arca Equities Rule 9.20(b); the
safe harbor is limited the requirements
of paragraph (1)(C) of proposed NYSE
Arca Equities Rule 9.20(b), which
prohibits an ETP Holder or associated
person from initiating any telephone
solicitation to any person who has
registered his or her phone number with
the national do-not-call registry.
To be eligible for this proposed NYSE
Arca Equities Rule 9.20(b) safe harbor,
an ETP Holder must demonstrate that
the ETP Holder’s routine business
do-not-call rules. See The Do-Not-Call
Implementation Act, 108 Pub. L. 10, 117 Stat. 557
(March 11, 2003).
7 See 15 U.S.C. 6102(d)(2)(A), which provides that
‘‘The Rules promulgated by the Federal Trade
Commission under subsection (a) shall not apply to
* * * [among other persons, brokers or dealers]
.* * * ’’ The FTC’s rules were not promulgated
under 15 U.S.C. 6102. The FCC’s rules are not
subject to this limitation and apply to all sellers and
telemarketers.
8 The Telemarketing and Consumer Fraud and
Abuse Prevention Act of 1994 (codified at 15 U.S.C.
6102) requires the SEC to promulgate telemarketing
rules substantially similar to those of the FTC or to
direct self-regulatory organizations to promulgate
such rules unless the SEC determines that such
rules are not in the interest of investor protection.
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practice meets four standards in
proposed Rule 9.20(b). First, the ETP
Holder must have established and
implemented written procedures to
comply with the national do-not-call
rules. Second, the ETP Holder must
have trained its personnel, and any
entity assisting it in its compliance, in
procedures established pursuant to the
national do-not-call rules. Third, the
ETP Holder must have maintained and
recorded a list of telephone numbers
that the ETP Holder may not contact.
Fourth, the ETP Holder must use a
process to prevent telephone
solicitations to any telephone number
on any list established pursuant to the
do-not-call rules, employing a version of
the national do-not-call registry
obtained from the FTC no more than
thirty-one (31) days prior to the date any
call is made, and must maintain records
documenting this process.
Other Provisions
This Amendment No. 2 includes
additional provisions concerning
general telemarketing requirements,
procedures, wireless communications,
outsourcing telemarketing, pre-recorded
messages, telephone facsimile or
computer advertisements and caller
identification. Proposed Section
9.20(b)(1) outlines the General
Telemarketing Requirements specifying
when ETP Holders and associated
persons may not contact residences and
certain persons. Proposed Section
9.20(b)(2) provides an exception for
calling a person on the national do-notcall registry if the ETP Holder has the
person’s permission to make calls, or if
the ETP Holder has an established
business relationship with the person.
Proposed Section 9.20(b)(4) sets forth
the procedures that ETP Holders must
institute to comply with the General
Telemarketing Requirements set forth in
Section 9.20(b)(1). Proposed Section
9.20(b)(5) sets forth when ETP Holders
are prohibited from using wireless
communications. Proposed Section
9.20(b)(6) sets forth the requirement that
ETP Holders outsourcing telemarketing
remain responsible for compliance with
Section 9.20(b). Proposed Section
9.20(b)(7) sets forth the requirements
that ETP Holders must satisfy to utilize
pre-recorded messages. Proposed
Section 9.20(b)(8) prohibits ETP Holders
or associated person from using a
telephone facsimile machine, computer
or other device to send unsolicited
advertisements to a telephone facsimile
machine, computer or other device.
Finally, proposed Section 9.20(b)(9) sets
forth the requirement that ETP Holders
engaging in telemarketing must transmit
caller identification information.
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2. Statutory Basis
The Exchange believes that the
proposed rule change is consistent with
section 6(b) of the Exchange Act 9 in
general, and furthers the objectives of
section 6(b)(5) 10 in particular, because it
is designed to prevent fraudulent and
manipulative acts and practices, to
promote just and equitable principles of
trade, and, in general, to protect
investors and the public interest. The
Exchange believes that the proposed
rule change will increase the protection
of investors by enabling investors who
do not want to receive telephone
solicitations from ETP Holders to
receive the benefits and protections of
the national do-not-call registry.
B. Self-Regulatory Organization’s
Statement on Burden on Competition
The Exchange does not believe that
the proposed rule change will impose
any burden on competition that is not
necessary or appropriate in furtherance
of the purposes of the Exchange Act.
C. Self-Regulatory Organization’s
Statement on Comments on the
Proposed Rule Change Received From
Members, Participants, or Others
Written comments on the proposed
rule change were neither solicited nor
received by the Exchange.
III. Date of Effectiveness of the
Proposed Rule Change and Timing for
Commission Action
Within 35 days of the date of
publication of this notice in the Federal
Register or within such longer period (i)
as the Commission may designate up to
90 days of such date if it finds such
longer period to be appropriate and
publishes its reasons for so finding or
(ii) as to which the self-regulatory
organization consents, the Commission
will:
(A) By order approve such rule
change, or
(B) Institute proceedings to determine
whether the proposed rule change
should be disapproved.
IV. Solicitation of Comments
Interested persons are invited to
submit written data, views, and
arguments concerning the foregoing,
including whether the proposed rule
change, as amended, is consistent with
the Exchange Act. Comments may be
submitted by any of the following
methods:
9 15
U.S.C. 78f(b).
U.S.C. 78f(b)(5).
10 15
E:\FR\FM\10JYN1.SGM
10JYN1
Federal Register / Vol. 71, No. 131 / Monday, July 10, 2006 / Notices
Electronic Comments
SECURITIES AND EXCHANGE
COMMISSION
Paper Comments
• Send paper comments in triplicate
to Nancy M. Morris, Secretary,
Securities and Exchange Commission,
Station Place, 100 F Street, NE.,
Washington, DC 20549–1090.
converted to the new DDS 3 format by
the revised mandated conversion date of
September 29, 2006.4
[Release No. 34–54060; File No. SR–OCC–
2006–07]
• Use the Commission’s Internet
comment form (https://www.sec.gov/
rules/sro.shtml); or
• Send an e-mail to rulecomments@sec.gov.
• Please include File Number SR–
PCX–2005–97 on the subject line.
Background
Both clearing members and nonclearing members may subscribe to
DDS. A clearing member may subscribe
to DDS in order to receive in a machine
readable format data processed by OCC
that is proprietary to such clearing
member (e.g., position and post-trade
entries) as well as non-proprietary data
(i.e., data not specific to the clearing
member) produced by OCC (e.g.,
options, series and prices). Non-clearing
members may subscribe to DDS in order
to receive certain non-proprietary data.
Self-Regulatory Organizations; The
Options Clearing Corporation; Notice
of Filing of Proposed Rule Change
Relating to a Surcharge for NonClearing Member Subscribers That
Have Not Met a Mandated Conversion
Date for Data Distribution Service
June 28, 2006.
sroberts on PROD1PC70 with NOTICES
Pursuant to section 19(b)(1) of the
Securities Exchange Act of 1934
(‘‘Act’’),1 notice is hereby given that on
All submissions should refer to File
May 15, 2006, The Options Clearing
Number SR–PCX–2005–97. This file
Corporation (‘‘OCC’’) filed with the
number should be included on the
Securities and Exchange Commission
subject line if e-mail is used. To help the (‘‘Commission’’) the proposed rule
Commission process and review your
change described in Items I, II, and III
below, which items have been prepared
comments more efficiently, please use
only one method. The Commission will primarily by OCC. The Commission is
post all comments on the Commission’s publishing this notice to solicit
comments on the proposed rule change
Internet Web site (https://www.sec.gov/
from interested parties.
rules/sro.shtml). Copies of the
submission, all subsequent
I. Self-Regulatory Organization’s
amendments, all written statements
Statement of the Terms of Substance of
with respect to the proposed rule
the Proposed Rule Change
change that are filed with the
The proposed rule change would
Commission, and all written
implement a surcharge to the monthly
communications relating to the
service fee charged to non-clearing
proposed rule change between the
member subscribers of OCC’s Data
Commission and any person, other than Distribution Service (‘‘DDS’’) that have
those that may be withheld from the
not converted to the new DDS format by
public in accordance with the
the revised mandated conversion date of
provisions of 5 U.S.C. 552, will be
September 29, 2006.
available for inspection and copying in
II. Self-Regulatory Organization’s
the Commission’s Public Reference
Section, Station Place, 100 F Street, NE., Statement of the Purpose of, and
Statutory Basis for the Proposed Rule
Washington, DC 20549–1090. Copies of
Change
such filing also will be available for
In its filing with the Commission,
inspection and copying at the principal
OCC included statements concerning
office of the Exchange. All comments
received will be posted without change; the purpose of and basis for the
proposed rule change and discussed any
the Commission does not edit personal
comments it received on the proposed
identifying information from
rule change. The text of these statements
submissions. You should submit only
may be examined at the places specified
information that you wish to make
in Item IV below. OCC has prepared
available publicly. All submissions
summaries, set forth in sections (A), (B),
should refer to File Number SR–PCX–
2005–97 and should be submitted on or and (C) below, of the most significant
aspects of these statements.2
before July 31, 2006.
(A) Self-Regulatory Organization’s
For the Commission, by the Division of
Statement of the Purpose of, and
Market Regulation, pursuant to delegated
Statutory Basis for, the Proposed Rule
authority.11
Change
Nancy M. Morris,
Secretary.
[FR Doc. E6–10685 Filed 7–7–06; 8:45 am]
BILLING CODE 8010–01–P
The proposed rule change would
implement a surcharge to the monthly
ancillary service fee for non-clearing
member subscribers that have not
1 15
U.S.C. 78s(b)(1).
Commission has modified the text of the
summaries prepared by OCC.
2 The
11 17
CFR 200.30–3(a)(12).
VerDate Aug<31>2005
17:10 Jul 07, 2006
Jkt 208001
38961
PO 00000
Frm 00120
Fmt 4703
Sfmt 4703
Discussion
In December, 2004, OCC informed all
DDS subscribers that OCC was requiring
them to convert to the new ENCORE 5
DDS format by February 28, 2006.
Although OCC diligently worked with
subscribers to facilitate their
implementation of the new DDS format,
it became apparent that subscribers
needed additional time in order to
complete their systems work.
Accordingly, in December, 2005, OCC
announced an extension of the
mandated conversion date to September
29, 2006.
After the mandated conversion date,
OCC will continue to support the legacy
data service distribution system.
However, for subscribers that do not
meet the revised conversion date of
September 29, 2006, OCC proposes to
charge a monthly surcharge of $1,000
per month in order to reasonably
allocate the costs of continuing to
support the legacy data distribution
system. The surcharge will be imposed
starting with the October, 2006, billing
cycle and will continue until the
subscriber converts to the new DDS
format and ceases to receive any legacy
data service distribution transmissions.
By a separate proposed rule change,
File No. SR–OCC–2006–06, OCC is
similarly proposing to apply the $1,000
per month surcharge to clearing member
subscribers to DDS that likewise fail to
convert to the new format. If this filing,
which is to implement the surcharge for
3 For a description of the services, including DDS,
offered through OCC’s ancillary services program,
see Securities Exchange Act File Nos. 53400 (March
2, 2006), 71 FR 12226 (March 9, 2006) [File No. SR–
OCC–2006–01] and 52125 (July 26, 2005), 70 FR
44414 (August 2, 2005) [File No. SR–OCC–2005–
09].
4 By a separate proposed rule change, OCC will
apply the same surcharge to clearing member DDS
subscribers that likewise do not convert to the new
DDS format by the mandated date. File No. SR–
OCC–2006–06.
5 ENCORE is OCC’s clearing system.
E:\FR\FM\10JYN1.SGM
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]]>Agencies
[Federal Register Volume 71, Number 131 (Monday, July 10, 2006)]
[Notices]
[Pages 38957-38961]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-10685]
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-54079; File No. SR-PCX-2005-97]
Self-Regulatory Organizations; NYSE Arca, Inc., Notice of Filing
of Proposed Rule Change and Amendment Nos. 1 and 2 Thereto Requiring
ETP Holders To Participate in the Federal Trade Commission's National
Do-Not-Call Registry
June 30, 2006.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934
(the ``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby given
that on May 18, 2006, NYSE Arca, Inc. (``NYSE Arca'' or ``Exchange'')
\3\ filed with the Securities and Exchange Commission (``Commission''
or ``SEC'') the proposed rule change as described in Items I, II and
III below, which Items have been prepared by the self-regulatory
organization. On May 26, 2006, NYSE Arca filed Amendment No. 1 to the
proposed rule change.\4\ On June 21, 2006, NYSE Arca filed Amendment
No. 2 to the proposed rule change.\5\ The Commission is publishing this
notice to solicit comments on the proposed rule change from interested
persons.
---------------------------------------------------------------------------
\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
\3\ On March 6, 2006, the Pacific Exchange, Inc. filed a rule
proposal, effective upon filing, to amend its rules to reflect these
name changes: from Pacific Exchange, Inc. to NYSE Arca, Inc.; from
PCX Equities, Inc. to NYSE Arca Equities, Inc.; from PCX Holdings,
Inc., to NYSE Arca Holdings, Inc.; and from the Archipelago
Exchange, L.L.C. to NYSE Arca, L.L.C. See File No. SR-PCX-2006-24
(March 6, 2006). This proposal has been amended to reflect these
name changes.
\4\ In Amendment No. 1, NYSE Arca partially amended the text of
proposed amended NYSE Arca Equities Rule 9.20 and made conforming
and technical changes to the original filing.
\5\ In Amendment No. 2, NYSE Arca made additional changes to the
text of proposed amended NYSE Arca Equities Rule 9.20 and to the
original filing.
---------------------------------------------------------------------------
I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change
The Exchange, through its wholly-owned subsidiary NYSE Arca
Equities, Inc. (``NYSE Arca Equities'' or the ``Corporation''),
proposes to amend NYSE Arca Equities Rule 9.20. The proposed rule
change would require ETP Holders to participate in the Federal Trade
Commission's (``FTC'') national do-not-call registry. The current text
of Arca Equities Rule 9.20(b) would be deleted. The text of the
proposed rule change is set forth below. Italics indicate new text.
NYSE Arca Equities Rules
RULE 9 CONDUCTING BUSINESS WITH THE PUBLIC
* * * * *
Telemarketing
9.20(b) (1) General Telemarketing Requirements. No ETP Holder or
associated person shall make any telephone solicitation, as defined in
Section 9.20(b)(10)(B) to:
(A) Any residence of a person before the hour of 8 a.m. or after 9
p.m. (local time at the called party's location), unless:
(i) The ETP Holder has an established business relationship with
the person pursuant to Section 9.20(b)(10)(A);
(ii) The ETP Holder has received that person's prior express
invitation or permission; or
[[Page 38958]]
(iii) The person called is a broker or dealer.
(B) Any person that previously has stated that he or she does not
wish to receive an outbound telephone call made by or on behalf of the
ETP Holder; or
(C) Any person who has registered his or her telephone number on
the Federal Trade Commission's national do-not-call registry.
(2) National Do-Not-Call Registry Exceptions. An ETP Holder will
not be liable for violating Section 9.20(b)(1)(C) if:
(A) The ETP Holder has an established business relationship with
the recipient of the call. A person's request to be placed on an ETP
Holder's firm-specific do-not-call list terminates the established
business relationship exception to that national do-not-call registry
provision for that ETP Holder even if the person continues to do
business with the ETP Holder;
(B) The ETP Holder has obtained the person's prior express
invitation or permission. Such permission must be evidenced by a
signed, written agreement between the person and the ETP Holder that
states that the person agrees to be contacted by the ETP Holder and
includes the telephone number to which the calls may be placed; or
(C) The associated person making the call has a personal
relationship with the recipient of the call.
(3) Safe Harbor Provision. The ETP Holder or associated person
making telephone solicitations will not be liable for violating Section
9.20(b)(1)(C) if the ETP Holder or associated person demonstrates that
the violation is the result of an error and that as part of the ETP
Holder's routine business practice it meets the following standards:
(A) The ETP Holder has established and implemented written
procedures to comply with the national do-not-call rules;
(B) The ETP Holder has trained its personnel, and any entity
assisting in its compliance, in procedures established pursuant to the
national do-not-call rules;
(C) The ETP Holder has maintained and recorded a list of telephone
numbers that it may not contact; and
(D) The ETP Holder uses a process to prevent telephone
solicitations to any telephone number on any list established pursuant
to the do-not-call rules, employing a version of the national do-not-
call registry obtained from the administrator of the registry no more
than thirty-one (31) days prior to the date any call is made, and
maintains records documenting this process.
(4) Procedures. Prior to engaging in telemarketing, an ETP Holder
must institute procedures to comply with Section 9.20(b)(1). Such
procedures must meet the minimum standards:
(A) Written policy. The ETP Holder must have a written policy
available upon demand for maintaining a do-not-call list.
(B) Training of personnel engaged in telemarketing. Personnel
engaged in any aspect of telemarketing must be informed and trained in
the existence and use of the do-not-call list, including the policies
and procedures of the firm regarding communication with the public.
(C) Recording, honoring do-not-call requests. If an ETP Holder
receives a request from a person not to receive calls from that ETP
Holder, the ETP Holder must record the request and place the person's
name, if provided, and telephone number on the firm's do-not-call list
at the time the request is made. The ETP Holder must honor a person's
do-not-call request within a reasonable time from the date such request
is made. This period may not exceed 30 days from the date of such
request. If such requests are being recorded or maintained by a party
other than the ETP Holder on whose behalf the telemarketing call is
made, the ETP Holder on whose behalf the telemarketing call is made
will be liable for any failure to honor the do-not-call request.
(D) Identification of sellers and telemarketers. An ETP Holder or
person associated with an ETP Holder making a call for telemarketing
purposes must provide the called party with the name of the individual
caller, the name of the ETP Holder, an address or telephone number at
which the ETP Holder may be contacted, and that the purpose of the call
is to solicit the purchase or sale of securities or a related service.
The telephone number provided may not be a 900 number or any other
number for which charges exceed local or long distance transmission
charges.
(E) Affiliated persons or entities. In the absence of a specific
request by the person to the contrary, a person's do-not-call request
shall apply to the ETP Holder making the call, and will not apply to
affiliated entities unless the consumer reasonably would expect them to
be included given the identification of the caller and the product or
service being advertised.
(F) Maintenance of do-not-call lists. An ETP Holder making calls
for telemarketing purposes must maintain a record of the caller's
request not to receive further telemarketing calls. A firm-specific do-
not-call request must be honored for five years from the time the
request is made.
(5) Wireless Communications.
(A) ETP Holders are prohibited from using an automatic telephone
dialing system or an artificial or prerecorded voice when initiating a
telephone call to any telephone number assigned to a paging service,
cellular telephone service, specialized mobile radio service, or other
radio common carrier service, or any service for which the called party
is charged for the call.
(B) The provisions set forth in this rule are applicable to ETP
Holders telemarketing or making telephone solicitations calls to
wireless telephone numbers.
(6) Outsourcing Telemarketing. If an ETP Holder uses another entity
to perform telemarketing services on its behalf, the ETP Holder remains
responsible for ensuring compliance with all provisions contained in
this rule.
(7) Pre-Recorded Messages.
(A) An ETP Holder may not initiate any telephone call to any
residence using an artificial or prerecorded voice to deliver a
message, without the prior express consent of the person called, unless
the call:
(i) Is not made for a commercial purpose;
(ii) Is made for a commercial purpose, but does not include or
introduce an unsolicited advertisement or constitute a telephone
solicitation; or
(iii) Is made to any person with whom the ETP Holder has an
established business relationship at the time the call is made.
(B) All artificial or prerecorded telephone messages shall:
(i) At the beginning of the message, state clearly the identity of
the ETP Holder that is responsible for initiating the call. The ETP
Holder responsible for initiating the call must state the name under
which the ETP Holder is registered to conduct business with the
applicable State Corporation Commission (or comparable regulatory
authority); and
(ii) During or after the message, the ETP Holder must state clearly
the telephone number (other than that of the autodialer or prerecorded
message player that placed the call) of such ETP Holder. The telephone
number provided may not be a 900 number or any other number for which
charges exceed local or long distance transmission charges.
(iii) For telemarketing messages to a residence, such telephone
number, mentioned in Section 9.20(b)(7)(B)(ii) above, must permit any
person to make
[[Page 38959]]
a do-not-call request during regular business hours for the duration of
the telemarketing campaign.
(8) Telephone Facsimile or Computer Advertisements
No ETP Holder or associated person may use a telephone facsimile
machine, computer or other device to send an unsolicited advertisement
to a telephone facsimile machine, computer or other device.
(A) For purposes of Section 9.20(b)(8) of this rule, a facsimile
advertisement is not ``unsolicited'' if the recipient has granted the
ETP Holder or associated person prior express invitation or permission
to deliver the advertisement. Such express invitation or permission
must be evidenced by a signed, written statement that includes the
facsimile number to which any advertisements may be sent and clearly
indicates the recipient's consent to receive such facsimile
advertisements from the ETP Holder or associated person.
(B) ETP Holders and associated persons must clearly mark, in a
margin at the top or bottom of each page of the transmission, the date
and time it is sent and an identification of the ETP Holder or
associated person sending the message and the telephone number of the
sending machine or of the ETP Holder or associated person sending the
transmission.
(9) Caller Identification Information
(A) Any ETP Holder that engages in telemarketing, as defined in
Section 9.20(b)(10)(B) of this rule, must transmit caller
identification information. Such caller identification information must
include either the Calling Party Number (``CPN'') or the calling
party's billing number, also known as the Charge Number (``ANI''), and,
when available from the telephone carrier, the name of the ETP Holder.
The telephone number so provided must permit any person to make a do-
not-call request during regular business hours. Whenever possible, CPN
is the preferred number and should be transmitted.
(B) Any ETP Holder that engages in telemarketing, as defined in
Section 9.20(b)(10)(B) of this rule, is prohibited from blocking the
transmission of caller identification information.
(C) Provision of caller identification information does not obviate
the requirement for a caller to verbally supply identification
information during a call.
(10) Definitions.
(A) For purposes of Section 9.20, an ETP Holder has an
``established business relationship'' with a person if:
(i) The person has made a financial transaction or has a security
position, a money balance, or account activity with the ETP Holder or
at a clearing firm that provides clearing services to such ETP Holder
within the previous 18 months immediately preceding the date of the
telemarketing call;
(ii) The ETP Holder is the broker-dealer of record for an account
of the person within the previous 18 months immediately preceding the
date of the telemarketing call; or
(iii) The person has contacted the ETP Holder to inquire about a
product service offered by the ETP Holder within the previous three
months immediately preceding the date of the telemarketing call, which
relationship has not been previously terminated by either party.
A person's established business relationship with an ETP Holder does
not extend to the ETP Holder's affiliated entities unless the person
would reasonably expect them to be included, given the nature and type
of products or services offered by the affiliate and the identity of
the affiliate. Similarly, a person's established business relationship
with an ETP Holder's affiliate does not extend to the ETP Holder unless
the person would reasonably expect the ETP Holder to be included. A
person's request to be placed on an ETP Holder's firm-specific do-not-
call list as set forth in Section 9.20(b)(1)(B) of this rule terminates
an established business relationship for purposes of telemarketing and
telephone solicitation, even if the person continues to do business
with the ETP Holder.
(B) The terms ``telemarketing'' and ``telephone solicitation'' mean
the initiation of a telephone call or message for the purpose of
encouraging the purchase or rental of, or investment in, property,
goods, or services, which is transmitted to any person.
(C) The term ``personal relationship'' means any family member,
friend or acquaintance of the telemarketer making the call.
(D) The term ``account activity'' shall include, but not be limited
to, purchases, sales, interest credits or debits, charges or credits,
dividend payments, transfer activity, securities receipts or
deliveries, and/or journal entries relating to securities or funds in
the possession or control of the ETP Holder.
(E) The term ``broker-dealer of record'' refers to the broker-
dealer identified on a customer's account application for accounts held
directly at a mutual fund or variable insurance product issuer.
(F) The terms ``automatic telephone dialing system'' and
``autodialer'' mean equipment which has the capacity to store or
produce telephone numbers to be called using a random or sequential
number generator and to dial such numbers.
(G) The term ``telephone facsimile machine'' means equipment which
has the capacity to transcribe text or images (or both) from paper,
into an electronic signal and to transmit that signal over a regular
telephone line, or to transcribe text or images (or both) from an
electronic signal received over a regular telephone line onto paper.
(H) The term ``unsolicited advertisement'' means any material
advertising the commercial availability or quality of any products or
services which is transmitted to any person without that person's prior
express invitation or permission.
Rule 9.20(c)-(d)--No Change.
* * * * *
II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change
In its filing with the Commission, the Exchange included statements
concerning the purpose of and basis for the proposed rule change and
discussed any comments it received on the proposed rule change. The
text of these statements may be examined at the places specified in
Item IV below. The Exchange has prepared summaries, set forth in
sections (A), (B) and (C) below, of the most significant aspects of
such statements.
A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change
1. Purpose
The purpose of this Amendment No. 2 is to make the proposed rule
consistent with NYSE Rule 404A by including provisions concerning
general telemarketing requirements, procedures, wireless
communications, outsourcing telemarketing, pre-recorded messages,
telephone facsimile or computer advertisements and caller
identification. This Amendment No. 2 replaces the original filing in
its entirety. In 2003, the FTC, via its Telemarketing Sales Rule, and
the Federal Communications Commission (``FCC''), via its Miscellaneous
Rules Relating to Common Carriers, established requirements for sellers
and telemarketers to participate in a national do-not-call registry.\6\
Since June 2003,
[[Page 38960]]
consumers have been able to enter their home telephone numbers into the
national do-not-call registry, which is maintained by the FTC. Under
rules of the FTC and FCC, sellers and telemarketers generally are
prohibited from making telephone solicitations to consumers whose
numbers are listed in the national do-not-call registry. The FCC's do-
not-call rules apply to broker-dealers while the FTC's rules do not.\7\
---------------------------------------------------------------------------
\6\ The do-not-call rules of the FCC and FTC are very similar in
terms of substance, in part, because Congress directed the FCC to
consult with the FTC to maximize consistency between their
respective do-not-call rules. See The Do-Not-Call Implementation
Act, 108 Pub. L. 10, 117 Stat. 557 (March 11, 2003).
\7\ See 15 U.S.C. 6102(d)(2)(A), which provides that ``The Rules
promulgated by the Federal Trade Commission under subsection (a)
shall not apply to * * * [among other persons, brokers or dealers]
.* * * '' The FTC's rules were not promulgated under 15 U.S.C. 6102.
The FCC's rules are not subject to this limitation and apply to all
sellers and telemarketers.
---------------------------------------------------------------------------
In February 2005, the SEC requested that NYSE Arca adopt the
proposed telemarketing rules to require ETP Holders to participate in
the do-not-call registry.\8\ Because broker-dealers are subject to the
FCC's do-not-call rules, NYSE Arca modeled its rules in this area after
those of the FCC and codified these do-not-call requirements in NYSE
Arca Equities Rule 9.20(b), with minor modifications tailoring the
rules to broker-dealer activities and the securities industry. Current
NYSE Arca Rule 9.20(b) will be deleted and replaced in its entirety
with proposed Rule 9.20(b) set forth in Exhibit 5.
---------------------------------------------------------------------------
\8\ The Telemarketing and Consumer Fraud and Abuse Prevention
Act of 1994 (codified at 15 U.S.C. 6102) requires the SEC to
promulgate telemarketing rules substantially similar to those of the
FTC or to direct self-regulatory organizations to promulgate such
rules unless the SEC determines that such rules are not in the
interest of investor protection.
---------------------------------------------------------------------------
Safe Harbor Provision for the National Do-Not-Call Registry
Requirements
The FCC and FTC each provided persons subject to their respective
do-not-call rules a ``safe harbor'' providing that a seller or
telemarketer is not liable for a violation of the do-not-call rules
that is the result of an error if the seller or telemarketer's routine
business practice meets certain standards. The Corporation has provided
a parallel safe harbor in paragraph (3) of proposed NYSE Arca Equities
Rule 9.20(b); the safe harbor is limited the requirements of paragraph
(1)(C) of proposed NYSE Arca Equities Rule 9.20(b), which prohibits an
ETP Holder or associated person from initiating any telephone
solicitation to any person who has registered his or her phone number
with the national do-not-call registry.
To be eligible for this proposed NYSE Arca Equities Rule 9.20(b)
safe harbor, an ETP Holder must demonstrate that the ETP Holder's
routine business practice meets four standards in proposed Rule
9.20(b). First, the ETP Holder must have established and implemented
written procedures to comply with the national do-not-call rules.
Second, the ETP Holder must have trained its personnel, and any entity
assisting it in its compliance, in procedures established pursuant to
the national do-not-call rules. Third, the ETP Holder must have
maintained and recorded a list of telephone numbers that the ETP Holder
may not contact. Fourth, the ETP Holder must use a process to prevent
telephone solicitations to any telephone number on any list established
pursuant to the do-not-call rules, employing a version of the national
do-not-call registry obtained from the FTC no more than thirty-one (31)
days prior to the date any call is made, and must maintain records
documenting this process.
Other Provisions
This Amendment No. 2 includes additional provisions concerning
general telemarketing requirements, procedures, wireless
communications, outsourcing telemarketing, pre-recorded messages,
telephone facsimile or computer advertisements and caller
identification. Proposed Section 9.20(b)(1) outlines the General
Telemarketing Requirements specifying when ETP Holders and associated
persons may not contact residences and certain persons. Proposed
Section 9.20(b)(2) provides an exception for calling a person on the
national do-not-call registry if the ETP Holder has the person's
permission to make calls, or if the ETP Holder has an established
business relationship with the person. Proposed Section 9.20(b)(4) sets
forth the procedures that ETP Holders must institute to comply with the
General Telemarketing Requirements set forth in Section 9.20(b)(1).
Proposed Section 9.20(b)(5) sets forth when ETP Holders are prohibited
from using wireless communications. Proposed Section 9.20(b)(6) sets
forth the requirement that ETP Holders outsourcing telemarketing remain
responsible for compliance with Section 9.20(b). Proposed Section
9.20(b)(7) sets forth the requirements that ETP Holders must satisfy to
utilize pre-recorded messages. Proposed Section 9.20(b)(8) prohibits
ETP Holders or associated person from using a telephone facsimile
machine, computer or other device to send unsolicited advertisements to
a telephone facsimile machine, computer or other device. Finally,
proposed Section 9.20(b)(9) sets forth the requirement that ETP Holders
engaging in telemarketing must transmit caller identification
information.
2. Statutory Basis
The Exchange believes that the proposed rule change is consistent
with section 6(b) of the Exchange Act \9\ in general, and furthers the
objectives of section 6(b)(5) \10\ in particular, because it is
designed to prevent fraudulent and manipulative acts and practices, to
promote just and equitable principles of trade, and, in general, to
protect investors and the public interest. The Exchange believes that
the proposed rule change will increase the protection of investors by
enabling investors who do not want to receive telephone solicitations
from ETP Holders to receive the benefits and protections of the
national do-not-call registry.
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\9\ 15 U.S.C. 78f(b).
\10\ 15 U.S.C. 78f(b)(5).
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B. Self-Regulatory Organization's Statement on Burden on Competition
The Exchange does not believe that the proposed rule change will
impose any burden on competition that is not necessary or appropriate
in furtherance of the purposes of the Exchange Act.
C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others
Written comments on the proposed rule change were neither solicited
nor received by the Exchange.
III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action
Within 35 days of the date of publication of this notice in the
Federal Register or within such longer period (i) as the Commission may
designate up to 90 days of such date if it finds such longer period to
be appropriate and publishes its reasons for so finding or (ii) as to
which the self-regulatory organization consents, the Commission will:
(A) By order approve such rule change, or
(B) Institute proceedings to determine whether the proposed rule
change should be disapproved.
IV. Solicitation of Comments
Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change, as amended, is consistent with the Exchange Act. Comments may
be submitted by any of the following methods:
[[Page 38961]]
Electronic Comments
Use the Commission's Internet comment form (https://
www.sec.gov/rules/sro.shtml); or
Send an e-mail to rule-comments@sec.gov.
Please include File Number SR-PCX-2005-97 on the subject
line.
Paper Comments
Send paper comments in triplicate to Nancy M. Morris,
Secretary, Securities and Exchange Commission, Station Place, 100 F
Street, NE., Washington, DC 20549-1090.
All submissions should refer to File Number SR-PCX-2005-97. This file
number should be included on the subject line if e-mail is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (https://www.sec.gov/rules/
sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for inspection and
copying in the Commission's Public Reference Section, Station Place,
100 F Street, NE., Washington, DC 20549-1090. Copies of such filing
also will be available for inspection and copying at the principal
office of the Exchange. All comments received will be posted without
change; the Commission does not edit personal identifying information
from submissions. You should submit only information that you wish to
make available publicly. All submissions should refer to File Number
SR-PCX-2005-97 and should be submitted on or before July 31, 2006.
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\11\ 17 CFR 200.30-3(a)(12).
For the Commission, by the Division of Market Regulation,
pursuant to delegated authority.\11\
Nancy M. Morris,
Secretary.
[FR Doc. E6-10685 Filed 7-7-06; 8:45 am]
BILLING CODE 8010-01-P
