Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 71099-71102 [E7-24280]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 72, Number 240 (Friday, December 14, 2007)]
[Proposed Rules]
[Pages 71099-71102]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-24280]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 64

[CG Docket No. 02-278, FCC 07-203]


Rules and Regulations Implementing the Telephone Consumer 
Protection Act of 1991

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document, the Commission tentatively concludes that it 
should amend the Commission's rules under the Telephone Consumer 
Protection Act (TCPA) to require telemarketers to honor registrations 
with the National Do-Not-Call Registry so that registrations will not 
automatically expire based on the five year registration period. The 
Commission proposes extending this requirement indefinitely to minimize 
the inconvenience to consumers of having to re-register their 
preferences not to receive telemarketing calls and to further the 
underlying goal of the National Registry to protect consumer privacy 
rights. Also in this document, the Commission seeks comment on this 
tentative conclusion and on how best to coordinate this rule change 
with the Federal Trade Commission (FTC).

DATES: Comments are due on or before January 14, 2008. Reply comments 
are due on or before January 28, 2008.

ADDRESSES: You may submit comments identified by CG Docket No. 02-278 
and/or FCC Number 07-203, by any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting electronic filings.
     Federal Communications Commission's Web site: https://
www.fcc.gov/cgb/ecfs/. Follow the instructions for submitting 
electronic filings.
     People with Disabilities: Contact the FCC to request 
reasonable accommodations (accessible format documents, sign language 
interpreters, CART, etc.) by e-mail: FCC504@fcc.gov or phone (202) 418-
0539 or TTY: (202) 418-0432.
    For detailed instructions for submitting electronic filings and 
additional information on the rulemaking process, see the SUPPLEMENTARY 
INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Lynne Montgomery, Consumer & 
Governmental Affairs Bureau, Policy Division, at (202) 418-2229 
(voice), or e-mail Lynne.Montgomery@fcc.gov.

SUPPLEMENTARY INFORMATION: On July 3, 2003, the Commission released the 
Rules and Regulations Implementing the TCPA of 1991, Report and Order 
(2003 TCPA Order), CG Docket No. 02-278, FCC 03-153, published at 68 FR 
44144, July 25, 2003, revising the TCPA rules, and adopted new rules to 
provide consumers with several options for avoiding unwanted telephone 
solicitations. These new rules established a national do-not-call 
registry, set a maximum rate on the number of abandoned calls, required 
telemarketers to transmit caller ID information, and modified the 
Commission's unsolicited facsimile advertising requirements. This is a 
summary of the Commission's document Rules and Regulations Implementing 
the TCPA of 1991, Notice of Proposed Rulemaking (Do-Not-Call Registry 
NPRM), CG Docket No. 02-278, FCC 07-203, adopted November 27, 2007, and 
released December 4, 2007, seeking comment on its tentative conclusion 
to amend its rules to eliminate the five-year registration period for 
the Do-Not-Call Registry and require telemarketers to honor 
registrations indefinitely, unless the consumer has cancelled the 
registration or the database administrator removes the telephone number 
because it was disconnected or reassigned. The Do-Not-Call Registry 
NPRM does not contain new or modified information collection 
requirements subject to the PRA of 1995, Public Law 104-13. In 
addition, it does not contain any new or modified ``information 
collection burden for small business concerns with fewer than 25 
employees,'' pursuant to the Small Business Paperwork Relief Act of 
2002, Public Law 107-198, see 44 U.S.C. 3506 (c)(4).
    Pursuant to Sec. Sec.  1.415 and 1.419 of the Commission's rules, 
47 CFR 1.415 and 1.419, interested parties may file comments and reply 
comments on or before the dates indicated on the first page of this 
document. Comments may be filed using: (1) The Commission's Electronic 
Comment Filing System (ECFS), (2) the Federal Government's eRulemaking 
Portal, or (3) by filing paper copies. See Electronic Filing of 
Documents in Rulemaking Proceedings, 63 FR 24121, May 1, 1998.
     Electronic Filers: Comments may be filed electronically 
using the Internet by accessing the ECFS: https://www.fcc.gov/cgb/ecfs/ or the Federal eRulemaking Portal: https://www.regulations.gov. Filers 
should follow the instructions provided on the Web site for submitting 
comments.
     ECFS filers must transmit one electronic copy of the 
comments for CG Docket No. 02-278. In completing the transmittal 
screen, filers should include their full name, U.S. Postal Service 
mailing address, and the docket number, CG Docket No. 02-278. Parties 
may also submit an electronic comment by Internet e-mail. To get filing 
instructions, filers should send an e-mail to ecfs@fcc.gov, and include 
the following words in the body of the message, ``get form .'' A sample form and directions will be sent in response.
     Paper Filers: Parties who choose to file by paper must 
file an original and four copies of each filing. If more than

[[Page 71100]]

one docket or rulemaking number appears in the caption in this 
proceeding, filers must submit two additional copies of each additional 
docket or rulemaking number.
    Filings can be sent by hand or messenger delivery, by commercial 
overnight courier, or by first-class or overnight U.S. Postal Service 
mail (although the Commission continues to experience delays in 
receiving U.S. Postal Service mail). All filings must be addressed to 
the Commission's Secretary, Marlene H. Dortch, Office of the Secretary, 
Federal Communications Commission, 445 12th Street, SW., Washington, DC 
20554.
     The Commission's contractor will receive hand-delivered or 
messenger-delivered paper filings for the Commission's Secretary at 236 
Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing 
hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be 
held together with rubber bands or fasteners. Any envelopes must be 
disposed of before entering the building.
     Commercial mail sent by overnight mail (other than U.S. 
Postal Service Express Mail and Priority Mail) must be sent to 9300 
East Hampton Drive, Capitol Heights, MD 20743.
     U.S. Postal Service first-class, Express, and Priority 
mail should be addressed to 445 12th Street, SW., Washington, DC 20554.
    Pursuant to Sec.  1.1200 of the Commission's rules, 47 CFR 1.1200, 
this matter shall be treated as a ``permit-but-disclose'' proceeding in 
accordance with the Commission's ex parte rules. Persons making oral ex 
parte presentations are reminded that memoranda summarizing the 
presentations must contain summaries of the substances of the 
presentations and not merely a listing of the subjects discussed. More 
than a one or two sentence description of the views and arguments 
presented is generally required. See 47 CFR 1.1206(b). Other rules 
pertaining to oral and written ex parte presentations in permit-but-
disclose proceedings are set forth in Sec.  1.1206(b) of the 
Commission's rules, 47 CFR 1.1206(b).
    A copy of document FCC 07-203 and any subsequently filed documents 
in this matter will be available during regular business hours at the 
FCC Reference Center, Portals II, 445 12th Street, SW., Room CY-A257, 
Washington, DC 20554, (202) 418-0270. Document FCC 07-203 and any 
subsequently filed documents in this matter may also be purchased from 
the Commission's duplicating contractor at their Web site, https://
www.bcpiweb.com, or call (800) 378-3160. A copy of document FCC 07-203 
and any subsequently filed documents in this matter may also be found 
by searching the Commission's Electronic Comment Filing System (ECFS) 
at https://www.fcc.gov.cgb/ecfs (insert CG Docket No. 02-278 into the 
Proceeding block).
    To request materials in accessible formats for people with 
disabilities (Braille, large print, electronic files, audio format), 
send an e-mail to fcc504@fcc.gov or call the Consumer & Governmental 
Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY). 
Document FCC 07-203 can also be downloaded in Word or Portable Document 
Format (PDF) at: https://www.fcc.gov/cgb/policy.

Synopsis

    The Commission tentatively concludes that it should amend its rules 
so that telemarketers will be required to honor registrations with the 
National Do-Not-Call Registry until the registration is cancelled by 
the consumer or the telephone number is removed by the database 
administrator because it was disconnected or reassigned. Under this 
tentative conclusion, consumer registrations will not expire after five 
years. The Commission seeks comment on this tentative conclusion and 
how to implement this rule change in coordination with the FTC.
    The National Do-Not-Call Registry was adopted in large part to make 
it easier and more efficient for consumers to prevent unwanted 
telemarketing calls. As explained in Reports to Congress, the 
Commission believes the number of telephone numbers added to the 
Registry and the FCC's experience in both helping to ensure compliance 
with the Registry and in enforcing the do-not-call rules are strong 
indicators that the Registry has been successful in curbing the number 
of unwanted telemarketing calls. Therefore, the Commission is concerned 
that, starting June 28, 2008, five years after the opening of the 
registry, as many as 10 million registered numbers will expire and be 
automatically removed from the database, unless consumers take steps to 
re-register the numbers. By August 2008, as many as 20 million 
additional numbers will potentially expire and be purged from the 
registry. Such expirations will leave millions of consumers without 
protection against unwanted telemarketing calls--protections they have 
come to rely on since registering their numbers in 2003. Removing the 
current 5-year registration period will alleviate any burdens on 
consumers associated with re-registering numbers, including the time 
and effort necessary to register and the need to remember when to re-
register. The Commission believes requiring telemarketers to continue 
honoring do-not-call registrations will also minimize any consumer 
confusion resulting from a sudden increase in telemarketing calls 
received when registrations begin to expire next year. In addition, 
eliminating the need to re-register numbers every five years should 
lower the cost of operating the National Registry.
    In adopting the National Registry, the Commission was mindful of 
concerns regarding the accuracy of the database. Initially, the 
Commission determined that a re-registration requirement should be 
included given that telephone numbers change hands, are disconnected 
and reassigned over time. However, the Commission believes the database 
administrator's use of technology to check all registered telephone 
numbers on a monthly basis and remove those numbers that have been 
disconnected or reassigned will maintain the database's high-level of 
accuracy. In addition, consumers will continue to be able to verify or 
cancel their registration status using either the telephone or 
Internet. Allowing consumers to verify their registration status or 
cancel their registrations at any time also enhances the accuracy of 
the National Registry.
    The Commission recognizes that absent a similar change in the FTC's 
policies, numbers that have been in the Registry for five years may be 
purged by the database administrator beginning in June 2008, and that 
telemarketers will no longer have access to those numbers in order to 
avoid calling them. The Commission notes, however, that the FTC 
recently committed that ``it will not drop any telephone numbers from 
the Registry based on the five-year expiration period pending final 
Congressional or agency action on whether to make registration 
permanent.'' The Commission envisions working closely with the FTC to 
ensure that telephone numbers are not removed at the end of the 5-year 
registration period, and that telemarketers continue to have access to 
those numbers. The Commission seeks comment on how best to coordinate 
with the FTC to most effectively institute this rule change in a 
meaningful, consistent way.
    In light of our tentative conclusion and the FTC's indication that 
it will retain registrations after the 5-year period, the Commission 
believes the Registry will continue to operate as it does today. The 
Commission, therefore,

[[Page 71101]]

seeks comment on what impact, if any, our proposed rule change would 
have on telemarketers, particularly small businesses. Because 
telemarketers would be required to continue honoring do-not-call 
registrations as they do now, the Commission tentatively concludes that 
the enhanced consumer privacy protections created by this proposed rule 
amendment, taken in conjunction with the benefits to the federal 
government in administering the National Registry, outweigh any 
potential impact.
    The Commission believes making registrations permanent adequately 
balances the need to maintain a high level of accuracy in the national 
registry with the desire to have a simple and effective means to limit 
unwanted telemarketing calls. The proposed rule changes do not impose 
any new or modified information collection requirements.

Initial Regulatory Flexibility Analysis

    As required by the Regulatory Flexibility Act of 1980, as amended 
(RFA), the Commission has prepared this present Initial Regulatory 
Flexibility Analysis (IRFA) of the possible significant economic impact 
on a substantial number of small entities by the policies and rules 
proposed in the Do-Not-Call Registry NPRM. Written public comments are 
requested on this IRFA. Comments must be identified as responses to the 
IRFA and must be filed on or before the dates indicated on the first 
page of this document. The Commission will send a copy of this Do-Not-
Call Registry NPRM, including this IRFA, to the Chief Counsel for 
Advocacy of the Small Business Administration (SBA). In addition, the 
Do-Not-Call Registry NPRM and IRFA (or summaries thereof) will be 
published in the Federal Register.

Need for, and Objectives of, the Proposed Rules

    In 2003, the Commission released the 2003 TCPA Order revising the 
TCPA rules to respond to changes in the marketplace for telemarketing. 
Specifically, the Commission established in conjunction with the FTC a 
National Do-Not-Call Registry for consumers who wish to avoid unwanted 
telemarketing calls. The National Do-Not-Call Registry supplements 
long-standing company-specific rules which require companies to 
maintain lists of consumers who have directed the company not to 
contact them by phone.
    The 2003 TCPA Order required telemarketers to honor do-not-call 
registrations on the National Registry for five years. It also revised 
the company-specific do-not-call rules to reduce the retention period 
for such do-not-call requests from ten to five years. This Notice 
tentatively concludes to amend the Commission's rules so that 
registrations with the National Do-Not-Call Registry will not expire 
after a period of five years. Telemarketers will instead be required to 
honor such registrations until consumers cancel the registrations or 
the numbers are removed because they were disconnected or reassigned.

Legal Basis

    The proposed action is authorized under sections 1-4, 227, and 
303(r) of the Communications Act of 1934, as amended; the Telephone 
Consumer Protection Act of 1991, Public Law Number 102-243, 105 Statute 
2394; and the Do-Not-Call Implementation Act, Public Law Number 108-10, 
117 Statute 557.

Description and Estimate of the Number of Small Entities To Which the 
Proposed Rules Will Apply

    The RFA directs agencies to provide a description of and, where 
feasible, an estimate of the number of small entities that may be 
affected by the proposed rules, if adopted. The RFA generally defines 
the term ``small entity'' as having the same meaning as the terms 
``small business,'' ``small organization,'' and ``small governmental 
jurisdiction.'' In addition, the term ``small business'' has the same 
meaning as the term ``small business concern'' under the Small Business 
Act. A small business concern is one which: (1) Is independently owned 
and operated; (2) is not dominant in its field of operation; and (3) 
satisfies any additional criteria established by the SBA.
    The modifications to the regulations proposed in this item on 
telephone solicitation apply to a wide range of entities, including all 
entities that use the telephone to advertise. That is, the proposed 
rule changes would affect the myriad of businesses throughout the 
nation that use telemarketing to advertise. Thus, the Commission 
expects that the proposals in the Do-Not-Call Registry NPRM, could have 
a significant economic impact on a substantial number of small 
entities, including the following:
    Interexchange Carriers. Neither the Commission nor the SBA has 
developed a specific size standard for small entities specifically 
applicable to providers of interexchange services. The closest 
applicable size standard under the SBA rules is for Wired 
Telecommunications Carriers. Under that standard, such a business is 
small if it has 1,500 or fewer employees. According to the FCC's 
Telephone Trends Report data, 281 carriers reported that their primary 
telecommunications service activity was the provision of interexchange 
services. Of these 281 carriers, an estimated 254 have 1,500 or fewer 
employees, and 27 have more than 1,500 employees. Consequently, the 
Commission estimates that a majority of interexchange carriers may be 
affected by the rules.
    Incumbent Local Exchange Carriers. Neither the Commission nor the 
SBA has developed a small business size standard for providers of 
incumbent local exchange services. The closest applicable size standard 
under the SBA rules is for Wired Telecommunications Carriers. Under 
that standard, such a business is small if it has 1,500 or fewer 
employees. According to the FCC's Telephone Trends Report data, 1,310 
incumbent local exchange carriers reported that they were engaged in 
the provision of local exchange services. Of these 1,310 carriers, an 
estimated 1,025 have 1,500 or fewer employees and 285 have more than 
1,500 employees. Consequently, the Commission estimates that the 
majority of providers of local exchange service are small entities that 
may be affected by the rules and policies adopted herein. Wireless 
Service Providers. In November of 2007, the SBA developed a small 
business size standard for small businesses in the category ``Wireless 
Telecommunications Carriers (except satellite).'' Under that SBA 
category, a business is small if it has 1,500 or fewer employees. Thus, 
under this category and the associated small business size standard, 
the great majority of firms can be considered small. For a census 
category that existed for a prior version of the NAICS codes, namely 
``Cellular and Other Wireless Telecommunications,'' Census Bureau data 
for 2002 show that there were 1,397 firms in this category that 
operated for the entire year. Of this total, 1,378 firms had employment 
of 999 or fewer employees, and 19 firms had employment of 1,000 
employees or more. Thus, under this category and size standard, the 
great majority of firms can be considered small.
    Ordinarily, the Commission does not seek comment on the entities 
that must comply with proposed rules. However, the proposed rules in 
this document potentially could apply to any entity, including any 
telecommunications carrier that uses the telephone to advertise. Thus, 
under these unusual circumstances, the Commission seeks comment on 
whether the approximately 4.44 million small business firms in the 
United States, as identified in SBA data,

[[Page 71102]]

will need to comply with these rules, or whether it is reasonable to 
assume that only a subset of them will be subject to these rules given 
that not all small businesses use the telephone for advertising 
purposes. After evaluating the comments, the Commission will examine 
further the effect any rule changes might have on small entities not 
named herein, and will set forth our findings in the final Regulatory 
Flexibility Analysis.

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements for Small Entities

    The Do-Not-Call Registry NPRM proposes to amend the National Do-
Not-Call Registry rules to require telemarketers to honor registrations 
until consumers cancel their registrations. This proposed rule change 
will affect reporting, recordkeeping and other compliance requirements, 
as numbers currently registered will not be removed from the Registry 
after five years. However, as long as the FTC similarly changes its 
policies, we expect that telemarketers would continue to access the 
Registry and avoid calling numbers on the Registry as they are required 
to do so today.

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

    The RFA requires an agency to describe any significant alternatives 
that it has considered in reaching its proposed approach, which may 
include the following four alternatives (among others): (1) The 
establishment of differing compliance or reporting requirements or 
timetables that take into account the resources available to small 
entities; (2) the clarification, consolidation, or simplification of 
compliance or reporting requirements under the rule for small entities; 
(3) the use of performance, rather than design, standards; and (4) an 
exemption from coverage of the rule, or any part thereof, for small 
entities.
    The Commission is considering amending its rules to require 
telemarketers to honor national do-not-call registrations indefinitely 
and is seeking comment on this option. The alternative would be to not 
modify the rules and leave the registration period at 5 years. This 
would result is millions of national do-not-call registrations being 
removed from the registry in 2008 and leaving consumers without 
protection from unwanted telemarketing calls unless they take action to 
re-register. Small businesses, which believe the elimination of any 
date of expiration for registrations would impact their business in a 
negative way, are requested to file comments and advise the Commission 
about such an impact.

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

    The FCC's TCPA rules and the FTC's Telemarketing Sales Rule are 
duplicative in part. Should the Commission determine to amend its rules 
and there is no similar amendment made to the FTC's policies, the two 
sets of rules may be inconsistent.

Ordering Clauses

    Pursuant to sections 1-4, 227, and 303(r) of the Communications Act 
of 1934, as amended, 47 U.S.C. 151-154, 227 and 303(r); and Sec.  
64.1200 of the Commission's rules, 47 CFR 64.1200, the Do-Not-Call NPRM 
in CG Docket No. 02-278 is adopted.
    The Commission's Consumer & Governmental Affairs Bureau, Reference 
Information Center, SHALL SEND a copy of this Notice of Proposed 
Rulemaking, including the Initial Regulatory Flexibility Analysis, to 
the Chief Counsel for Advocacy of the Small Business Administration.
    Pursuant to applicable procedures set forth in Sec. Sec.  1.415 and 
1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested 
parties may file comments on the Do-Not-Call Registry NPRM on or before 
January 14, 2008, and reply comments on or before January 28, 2008.

List of Subjects in 47 CFR Part 64

    Telecommunications, Telephone.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.

Proposed Rule Changes

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

PART 64--MISCELLANEOUS RULES RELATING TO COMMON CARRIERS

    1. The authority citation for part 64 continues to read as follows:

    Authority: 47 U.S.C. 154, 254(k); secs. 403(b)(2)(B),(c), Pub. 
L. 104-104, 110 Stat. 56. Interpret or apply 47 U.S.C. 201, 218, 
222, 225, 226, 228, and 254(k) unless otherwise noted.

    2. Section 64.1200 is amended by revising paragraphs (c)(2) 
introductory text and (c)(2)(i)(D) to read as follows:


Sec.  64.1200  Delivery restrictions.

* * * * *
    (c) * * *
    (2) A residential telephone subscriber who has registered his or 
her telephone number on the national do-not-call registry of persons 
who do not wish to receive telephone solicitations that is maintained 
by the federal government. Any person or entity making telephone 
solicitations (or on whose behalf telephone solicitations are made) 
will not be liable for violating this requirement if:
    (i) * * *
    (D) Accessing the national do-not-call database. It 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 31 days prior to the date any call is made, 
and maintains records documenting this process; and
    Note to paragraph(c)(2)(i)(D): The requirement in paragraph 
64.1200(c)(2)(i)(D) for persons or entities to employ a version of the 
national do-not-call registry obtained from the administrator no more 
than 31 days prior to the date any call is made is effective January 1, 
2005. Until January 1, 2005, persons or entities must continue to 
employ a version of the registry obtained from the administrator of the 
registry no more than three months prior to the date any call is made.
* * * * *
 [FR Doc. E7-24280 Filed 12-13-07; 8:45 am]
BILLING CODE 6712-01-P