Telemarketing Sales Rule; Extension Beyond January 2, 2007, of the Previously Announced Forbearance Policy in Enforcement of the Prohibition of Prerecorded Calls in the Telemarketing Sales Rule (“TSR”), 77634-77635 [E6-22144]
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77634
Federal Register / Vol. 71, No. 248 / Wednesday, December 27, 2006 / Proposed Rules
the applicable interval in the Airbus A340
Certification Maintenance Requirements,
Issue 14.
Alternative Methods of Compliance
(AMOCs)
(g)(1) The Manager, International Branch,
ANM–116, Transport Airplane Directorate,
FAA, has the authority to approve AMOCs
for this AD, if requested in accordance with
the procedures found in 14 CFR 39.19.
(2) Before using any AMOC approved in
accordance with § 39.19 on any airplane to
which the AMOC applies, notify the
appropriate principal inspector in the FAA
Flight Standards Certificate Holding District
Office.
Related Information
(h) EASA airworthiness directives 2006–
0224, dated July 27, 2006, and 2006–0225,
dated July 21, 2006, also address the subject
of this AD.
Issued in Renton, Washington, on
December 19, 2006.
Ali Bahrami,
Manager, Transport Airplane Directorate,
Aircraft Certification Service.
[FR Doc. E6–22111 Filed 12–26–06; 8:45 am]
BILLING CODE 4910–13–P
FEDERAL TRADE COMMISSION
16 CFR Part 310
RIN 3084–0098
Telemarketing Sales Rule; Extension
Beyond January 2, 2007, of the
Previously Announced Forbearance
Policy in Enforcement of the
Prohibition of Prerecorded Calls in the
Telemarketing Sales Rule (‘‘TSR’’)
Federal Trade Commission.
Proposed rule.
AGENCY:
sroberts on PROD1PC70 with PROPOSALS
ACTION:
SUMMARY: In a Federal Register
document published on October 4,
2006, 71 FR 58716, the FTC denied a
request for creation of a new safe harbor
in the TSR for prerecorded calls by
sellers and their telemarketers to
consumers with whom the seller has an
‘‘established business relationship,’’ and
proposed an amendment to the TSR that
would make explicit the prohibition on
prerecorded calls that is now implicit in
the TSR’s call abandonment provisions.
The Commission accordingly also
announced the revocation of a
previously announced policy of
forbearing from enforcement of the
TSR’s call abandonment prohibition
effective January 2, 2007. In response to
a request for an extension of the
forbearance policy, the Commission has
determined that the forbearance policy
should remain in effect until the
conclusion of the prerecorded call
amendment proceeding.
VerDate Aug<31>2005
20:37 Dec 26, 2006
Jkt 211001
Effective January 2, 2007, the
Commission will continue its
previously announced policy of
forbearing from enforcing the
prohibition of prerecorded calls in the
TSR’s call abandonment provisions,
until the conclusion of the prerecorded
call amendment proceeding.
FOR FURTHER INFORMATION CONTACT:
Craig Tregillus, (202) 326–2970,
Division of Marketing Practices, Bureau
of Consumer Protection, Room H–288,
Federal Trade Commission, 600
Pennsylvania Avenue, NW.,
Washington, DC 20580.
SUPPLEMENTARY INFORMATION: In a
Federal Register document published
on October 4, 2006, 71 FR 58716, the
FTC denied a request for creation of a
new safe harbor in the TSR for
prerecorded calls by sellers and their
telemarketers to consumers with whom
the seller has an ‘‘established business
relationship,’’ and proposed an
amendment to the TSR that would make
explicit the prohibition on prerecorded
calls that is now implicit in the TSR’s
call abandonment provisions. The
Commission accordingly also
announced the revocation of a
previously announced policy of
forbearing from enforcement of the
TSR’s call abandonment prohibition
effective January 2, 2007.
On November 29, 2006, the Direct
Marketing Association (‘‘DMA’’) filed a
petition seeking an extension of the
Commission’s enforcement forbearance
policy on prerecorded calls beyond the
announced revocation date of January 2,
2007. A petition filed by medSage
Technologies LLC on November 30, and
petitions filed by Minutepoll, LLC
(‘‘Minutepoll petition’’) and jointly by
Silverlink Communications Inc. and the
Eliza Corporation (‘‘Silverlink petition’’)
on December 1, also requested
extensions of the revocation date. Both
the DMA and Silverlink petitions ask for
an extension until the conclusion of the
rulemaking proceeding, while the
medSage and Minutepoll petitions seek
an extension until six months after the
conclusion of the rulemaking to allow
companies sufficient time to comply.1
DMA argues that, if the policy were
revoked as announced effective January
2, 2007, even prerecorded messages that
consumers ‘‘affirmatively requested
would need to be discontinued’’
because businesses would not have had
sufficient time during their busy holiday
DATES:
1 The Commission believes that the medSage and
Minutepoll requests for additional time after a final
rule is promulgated for businesses to bring
themselves into compliance is premature, since this
issue can be addressed best when the final rule is
issued.
PO 00000
Frm 00007
Fmt 4702
Sfmt 4702
season ‘‘to obtain the proposed prior
written consents.’’ 2 Moreover, DMA
believes that because the TSR’s present
call abandonment provisions, unlike the
proposed amendment, lack any express
provision allowing prerecorded calls to
established customers who have given
their written consent, that failure to
extend the forbearance policy would
have the effect of ‘‘a flat prohibition on
prerecorded messages.’’ 3
DMA advances two additional reasons
for extending the forbearance policy
until completion of the amendment
proceeding. The first is that failure to
continue the forbearance policy
‘‘effectively prejudges the outcome of
the proceeding,’’ contrary to the
intended statutory purpose ‘‘of the
Notice and Comment process.’’4 The
second is that an extension will
maintain the status quo for consumers
who have listed their numbers on the
Do Not Call Registrybecause it simply
continues the existing forbearance
policy.5
The Minutepoll petition emphasizes
the ‘‘irreparable harm smaller
businesses’’ engaged in telemarketing
would incur unless the forbearance
policy is extended.6 Minutepoll says
that it and many other small
telemarketers that place prerecorded
calls otherwise would be forced to shut
down their operations on January 2,
2007, since they cannot be ‘‘cost
competitive’’ with large call centers in
placing live telemarketing calls.7
The medSage and Silverlink petitions
come from companies under contract
with HMO’s and other health care
providers, pursuant to regulations
issued by the Department of Health and
Human Services under the Health
Insurance Portability and
Accountability Act of 1996, to place
interactive ‘‘reminder’’ calls to the
providers’ medical patients, urging them
to get flu shots, childhood
immunizations, routine mammograms
and colonoscopies, prescription refills,
and the like.8 Both petitions argue that
there is insufficient time before January
2 for the providers they serve to obtain
written consent from the 10 to 20
million patients the Silverlink petition
estimates receive such calls annually.9
Thus, the medSage petition contends
that the company would be faced with
2 DMA
petition at 1–2.
at 1.
4 Id. at 2.
5 Id. at 3.
6 Minutepoll petition at 2.
7 Id.
8 These calls are ‘‘telemarketing’’ calls covered by
the TSR because they induce the purchase of
medical goods or services.
9 Silverlink petition at 2; medSage petition at 3.
3Id.
E:\FR\FM\27DEP1.SGM
27DEP1
Federal Register / Vol. 71, No. 248 / Wednesday, December 27, 2006 / Proposed Rules
‘‘a Hobson’s choice’’ of violating the
TSR or failing to deliver ‘‘medically
necessary prerecorded messages,’’ and
that ‘‘[n]either choice makes any
sense.’’ 10 Similarly, the Silverlink
petition argues that if an extension is
not granted, patients would be deprived
of calls that improve healthcare services
and patient outcomes.11
The Commission rejects DMA’s
argument that revoking its previously
announced non-enforcement policy can
reasonably be seen as in any way
prejudging the outcome of the
amendment proceeding. Nevertheless,
in recognition of the reasons presented
by the petitions and in order to preserve
the status quo, the Commission has
determined that, pending completion of
this proceeding, the Commission will
continue ‘‘to forbear from bringing any
enforcement action for violation of the
TSR’s call abandonment prohibition, 16
CFR 310.4(b)(1)(iv), against a seller or
telemarketer that places telephone calls
to deliver prerecorded telemarketing
messages to consumers with whom the
seller on whose behalf the telemarketing
call is placed has an established
business relationship, as defined in the
TSR, provided the seller or telemarketer
conducts this activity in conformity
with the [following] terms:’’ 12
• (i) The seller or telemarketer, for each
such telemarketing call placed, allows the
telephone to ring for at least fifteen (15)
seconds or four (4) rings before disconnecting
an unanswered call;
• (ii) Within two (2) seconds after the
person’s completed greeting, the seller or
telemarketer promptly plays a prerecorded
message that:
• (A) Presents an opportunity to assert an
entity-specific Do Not Call request pursuant
to § 310.4(b)(1)(iii)(A) at the outset of the
message, with only the prompt disclosures
required by § 310.4(d) or (e) preceding such
opportunity; and
• (B) Complies with all other requirements
of this Part [16 CFR Part 310] and other
applicable federal and state laws.’’ 13
The Commission has stated its belief
that, as the foregoing criteria indicate,
‘‘an interactive feature (pressing a
button during the message to connect to
a sales representative or an automated
system to make a Do Not Call request)
would be ideal . . . to protect
consumers’ Do Not Call rights under the
TSR.’’ 14 The Commission emphasizes
that its forbearance policy applies only
10 medSage
petition at 4.
petition at 6–7 & nn.14–16.
sroberts on PROD1PC70 with PROPOSALS
11 Silverlink
12 69
FR 67287, 67290 (Nov. 17, 2004).
13 69 FR at 67294 (noting that ‘‘This provision
does not affect any seller’s or telemarketer’s
obligation to comply with relevant state and federal
laws, including but not limited to the TCPA, 47
U.S.C. 227, and 47 CFR part 64.1200.’’)
14 69 FR 67289.
VerDate Aug<31>2005
20:37 Dec 26, 2006
Jkt 211001
77635
to prerecorded telemarketing calls that
comply completely with all of the
foregoing criteria.
• Use the Federal eRulemaking Portal
(https://www.regulations.gov). Follow the
instructions for submitting comments.
By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. E6–22144 Filed 12–26–06; 8:45 am]
Paper Comments
• Send paper comments in triplicate
to Nancy M. Morris, Secretary,
Securities and Exchange Commission,
100 F Street, NE., Washington, DC
20549–1090.
All submissions should refer to File
Number S7–24–06. This file number
should be included on the subject line
if e-mail is used. To help us 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/
proposed.shtml). Comments are also
available for public inspection and
copying in the Commission’s Public
Reference Room, 100 F Street, NE.,
Washington, DC 20549. All comments
received will be posted without change;
we do not edit personal identifying
information from submissions. You
should submit only information that
you wish to make available publicly.
FOR FURTHER INFORMATION CONTACT:
Michael G. Gaynor, Professional
Accounting Fellow, Office of the Chief
Accountant, at (202) 551–5300, or N.
Sean Harrison, Special Counsel,
Division of Corporation Finance, at
(202) 551–3430 U.S. Securities and
Exchange Commission, 100 F Street,
NE., Washington, DC 20549.
SUPPLEMENTARY INFORMATION: We are
proposing amendments to Rule 13a–
15(c),1 and Rule 15d–15(c) 2 under the
Securities Exchange Act of 1934 (the
‘‘Exchange Act’’); thnsp;3 and Rules
1–02(a)(2) 4 and 2–02(f) 5 of Regulation
S–X.6
BILLING CODE 6750–01–P
SECURITIES AND EXCHANGE
COMMISSION
17 CFR Parts 210, 240 and 241
[Release Nos. 33–8762; 34–54976; File No.
S7–24–06]
RIN 3235–AJ58
Management’s Report on Internal
Control Over Financial Reporting
Securities and Exchange
Commission.
ACTION: Proposed interpretation;
Proposed rule.
AGENCY:
SUMMARY: We are proposing interpretive
guidance for management regarding its
evaluation of internal control over
financial reporting. The interpretive
guidance sets forth an approach by
which management can conduct a topdown, risk-based evaluation of internal
control over financial reporting. The
proposed guidance is intended to assist
companies of all sizes to complete their
annual evaluation in an effective and
efficient manner and it provides
guidance on a number of areas
commonly cited as concerns over the
past two years. In addition, we are
proposing an amendment to our rules
requiring management’s annual
evaluation of internal control over
financial reporting to make it clear that
an evaluation that complies with the
interpretive guidance is one way to
satisfy those rules. Further, we are
proposing an amendment to our rules to
revise the requirements regarding the
auditor’s attestation report on the
assessment of internal control over
financial reporting.
DATES: Comment Date: Comments
should be received on or before
February 26, 2007.
ADDRESSES: Comments may be
submitted by any of the following
methods:
Electronic Comments
• Use the Commission’s Internet
comment form (https://www.sec.gov/
rules/proposed.shtml); or
• Send an e-mail to rulecomments@sec.gov. Please include File
Number S7–24–06 on the subject line;
or
PO 00000
Frm 00008
Fmt 4702
Sfmt 4702
I. Background
Section 404(a) of the Sarbanes-Oxley
Act of 2002 7 (‘‘Sarbanes-Oxley’’)
directed the Commission to prescribe
rules that require each annual report
that a company, other than a registered
investment company, files pursuant to
Section 13(a) or 15(d) 8 of the Exchange
Act to contain an internal control report:
(1) Stating management’s responsibility
for establishing and maintaining an
adequate internal control structure and
procedures for financial reporting; and
(2) containing an assessment, as of the
1 17
CFR 240.13a–15(c).
CFR 240.15d–15(c).
3 15 U.S.C. 78a et seq.
4 17 CFR 210.1–02.
5 17 CFR 210.2–02(f).
6 17 CFR 210.1–01 et seq.
7 15 U.S.C. 7262.
8 15 U.S.C. 78m(a) or 78o(d).
2 17
E:\FR\FM\27DEP1.SGM
27DEP1
Agencies
[Federal Register Volume 71, Number 248 (Wednesday, December 27, 2006)]
[Proposed Rules]
[Pages 77634-77635]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-22144]
-----------------------------------------------------------------------
FEDERAL TRADE COMMISSION
16 CFR Part 310
RIN 3084-0098
Telemarketing Sales Rule; Extension Beyond January 2, 2007, of
the Previously Announced Forbearance Policy in Enforcement of the
Prohibition of Prerecorded Calls in the Telemarketing Sales Rule
(``TSR'')
AGENCY: Federal Trade Commission.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: In a Federal Register document published on October 4, 2006,
71 FR 58716, the FTC denied a request for creation of a new safe harbor
in the TSR for prerecorded calls by sellers and their telemarketers to
consumers with whom the seller has an ``established business
relationship,'' and proposed an amendment to the TSR that would make
explicit the prohibition on prerecorded calls that is now implicit in
the TSR's call abandonment provisions. The Commission accordingly also
announced the revocation of a previously announced policy of forbearing
from enforcement of the TSR's call abandonment prohibition effective
January 2, 2007. In response to a request for an extension of the
forbearance policy, the Commission has determined that the forbearance
policy should remain in effect until the conclusion of the prerecorded
call amendment proceeding.
DATES: Effective January 2, 2007, the Commission will continue its
previously announced policy of forbearing from enforcing the
prohibition of prerecorded calls in the TSR's call abandonment
provisions, until the conclusion of the prerecorded call amendment
proceeding.
FOR FURTHER INFORMATION CONTACT: Craig Tregillus, (202) 326-2970,
Division of Marketing Practices, Bureau of Consumer Protection, Room H-
288, Federal Trade Commission, 600 Pennsylvania Avenue, NW.,
Washington, DC 20580.
SUPPLEMENTARY INFORMATION: In a Federal Register document published on
October 4, 2006, 71 FR 58716, the FTC denied a request for creation of
a new safe harbor in the TSR for prerecorded calls by sellers and their
telemarketers to consumers with whom the seller has an ``established
business relationship,'' and proposed an amendment to the TSR that
would make explicit the prohibition on prerecorded calls that is now
implicit in the TSR's call abandonment provisions. The Commission
accordingly also announced the revocation of a previously announced
policy of forbearing from enforcement of the TSR's call abandonment
prohibition effective January 2, 2007.
On November 29, 2006, the Direct Marketing Association (``DMA'')
filed a petition seeking an extension of the Commission's enforcement
forbearance policy on prerecorded calls beyond the announced revocation
date of January 2, 2007. A petition filed by medSage Technologies LLC
on November 30, and petitions filed by Minutepoll, LLC (``Minutepoll
petition'') and jointly by Silverlink Communications Inc. and the Eliza
Corporation (``Silverlink petition'') on December 1, also requested
extensions of the revocation date. Both the DMA and Silverlink
petitions ask for an extension until the conclusion of the rulemaking
proceeding, while the medSage and Minutepoll petitions seek an
extension until six months after the conclusion of the rulemaking to
allow companies sufficient time to comply.\1\
---------------------------------------------------------------------------
\1\ The Commission believes that the medSage and Minutepoll
requests for additional time after a final rule is promulgated for
businesses to bring themselves into compliance is premature, since
this issue can be addressed best when the final rule is issued.
---------------------------------------------------------------------------
DMA argues that, if the policy were revoked as announced effective
January 2, 2007, even prerecorded messages that consumers
``affirmatively requested would need to be discontinued'' because
businesses would not have had sufficient time during their busy holiday
season ``to obtain the proposed prior written consents.'' \2\ Moreover,
DMA believes that because the TSR's present call abandonment
provisions, unlike the proposed amendment, lack any express provision
allowing prerecorded calls to established customers who have given
their written consent, that failure to extend the forbearance policy
would have the effect of ``a flat prohibition on prerecorded
messages.'' \3\
---------------------------------------------------------------------------
\2\ DMA petition at 1-2.
\3\Id. at 1.
---------------------------------------------------------------------------
DMA advances two additional reasons for extending the forbearance
policy until completion of the amendment proceeding. The first is that
failure to continue the forbearance policy ``effectively prejudges the
outcome of the proceeding,'' contrary to the intended statutory purpose
``of the Notice and Comment process.''\4\ The second is that an
extension will maintain the status quo for consumers who have listed
their numbers on the Do Not Call Registrybecause it simply continues
the existing forbearance policy.\5\
---------------------------------------------------------------------------
\4\ Id. at 2.
\5\ Id. at 3.
---------------------------------------------------------------------------
The Minutepoll petition emphasizes the ``irreparable harm smaller
businesses'' engaged in telemarketing would incur unless the
forbearance policy is extended.\6\ Minutepoll says that it and many
other small telemarketers that place prerecorded calls otherwise would
be forced to shut down their operations on January 2, 2007, since they
cannot be ``cost competitive'' with large call centers in placing live
telemarketing calls.\7\
---------------------------------------------------------------------------
\6\ Minutepoll petition at 2.
\7\ Id.
---------------------------------------------------------------------------
The medSage and Silverlink petitions come from companies under
contract with HMO's and other health care providers, pursuant to
regulations issued by the Department of Health and Human Services under
the Health Insurance Portability and Accountability Act of 1996, to
place interactive ``reminder'' calls to the providers' medical
patients, urging them to get flu shots, childhood immunizations,
routine mammograms and colonoscopies, prescription refills, and the
like.\8\ Both petitions argue that there is insufficient time before
January 2 for the providers they serve to obtain written consent from
the 10 to 20 million patients the Silverlink petition estimates receive
such calls annually.\9\
---------------------------------------------------------------------------
\8\ These calls are ``telemarketing'' calls covered by the TSR
because they induce the purchase of medical goods or services.
\9\ Silverlink petition at 2; medSage petition at 3.
---------------------------------------------------------------------------
Thus, the medSage petition contends that the company would be faced
with
[[Page 77635]]
``a Hobson's choice'' of violating the TSR or failing to deliver
``medically necessary prerecorded messages,'' and that ``[n]either
choice makes any sense.'' \10\ Similarly, the Silverlink petition
argues that if an extension is not granted, patients would be deprived
of calls that improve healthcare services and patient outcomes.\11\
---------------------------------------------------------------------------
\10\ medSage petition at 4.
\11\ Silverlink petition at 6-7 & nn.14-16.
---------------------------------------------------------------------------
The Commission rejects DMA's argument that revoking its previously
announced non-enforcement policy can reasonably be seen as in any way
prejudging the outcome of the amendment proceeding. Nevertheless, in
recognition of the reasons presented by the petitions and in order to
preserve the status quo, the Commission has determined that, pending
completion of this proceeding, the Commission will continue ``to
forbear from bringing any enforcement action for violation of the TSR's
call abandonment prohibition, 16 CFR 310.4(b)(1)(iv), against a seller
or telemarketer that places telephone calls to deliver prerecorded
telemarketing messages to consumers with whom the seller on whose
behalf the telemarketing call is placed has an established business
relationship, as defined in the TSR, provided the seller or
telemarketer conducts this activity in conformity with the [following]
terms:'' \12\
\12\ 69 FR 67287, 67290 (Nov. 17, 2004).
---------------------------------------------------------------------------
(i) The seller or telemarketer, for each such
telemarketing call placed, allows the telephone to ring for at least
fifteen (15) seconds or four (4) rings before disconnecting an
unanswered call;
(ii) Within two (2) seconds after the person's
completed greeting, the seller or telemarketer promptly plays a
prerecorded message that:
(A) Presents an opportunity to assert an entity-
specific Do Not Call request pursuant to Sec. 310.4(b)(1)(iii)(A)
at the outset of the message, with only the prompt disclosures
required by Sec. 310.4(d) or (e) preceding such opportunity; and
(B) Complies with all other requirements of this Part
[16 CFR Part 310] and other applicable federal and state laws.''
\13\
\13\ 69 FR at 67294 (noting that ``This provision does not
affect any seller's or telemarketer's obligation to comply with
relevant state and federal laws, including but not limited to the
TCPA, 47 U.S.C. 227, and 47 CFR part 64.1200.'')
---------------------------------------------------------------------------
The Commission has stated its belief that, as the foregoing
criteria indicate, ``an interactive feature (pressing a button during
the message to connect to a sales representative or an automated system
to make a Do Not Call request) would be ideal . . . to protect
consumers' Do Not Call rights under the TSR.'' \14\ The Commission
emphasizes that its forbearance policy applies only to prerecorded
telemarketing calls that comply completely with all of the foregoing
criteria.
---------------------------------------------------------------------------
\14\ 69 FR 67289.
By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. E6-22144 Filed 12-26-06; 8:45 am]
BILLING CODE 6750-01-P