[Federal Register Volume 67, Number 195 (Tuesday, October 8, 2002)]
[Proposed Rules]
[Pages 62667-62681]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-25569]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 64

[CG Docket No. 02-278, CC Docket No. 92-90, FCC 02-250]


Rules and Regulations Implementing the Telephone Consumer 
Protection Act (TCPA) of 1991

AGENCY: Federal Communications Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: In this document, the Commission seeks comment on whether to 
revise, clarify or adopt any additional rules in order to more 
effectively carry out Congress's directives in the Telephone Consumer 
Protection Act of 1991 (TCPA). New technologies have emerged that allow 
telemarketers to better target potential customers and make it more 
cost effective to market using telephones and facsimile machines. These 
new telemarketing techniques have also increased public concern about 
the effect on consumer privacy. Therefore, we seek comment on whether 
to revise or clarify our rules governing unwanted telephone 
solicitations and the use of automatic

[[Page 62668]]

dialing systems, prerecorded or artificial voice messages, and 
telephone facsimile machines.

DATES: Comments are due November 22, 2002 and reply comments are due 
December 9, 2002. Written comments by the public on the proposed 
information collections are due November 22, 2002. Written comments 
must be submitted by the Office of Managements and Budget (OMB) on the 
proposed information collection on or before December 9, 2002.

ADDRESSES: Parties who choose to file comment by paper must file an 
original and four copies to the Commission's Secretary, Marlene H. 
Dortch, Office of the Secretary, Federal Communications Commission, 445 
12th Street, SW., Room TW-A325, Washington, DC 20554. Comments may also 
be filed using the Commission's Electronic Filing System, which can be 
accessed via the Internet at www.fcc.gov/e-file/ecfs.html. In addition 
to filing comments with the Secretary, a copy of any comments on the 
information collections contained herein should be submitted to Les 
Smith, Federal Communications Commission, Room 1-A804, 445 12th Street, 
SW., Washington, DC 20554, or via the Internet to [email protected] and 
to Kim A. Johnson, OMB Desk Officer, Room 10236 NEOB, 725 17th Street, 
NW., Washington, DC, 20503 or via the Internet to [email protected].

FOR FURTHER INFORMATION CONTACT: Erica H. McMahon or Richard D. Smith 
at 202-418-2512, Consumer & Governmental Affairs Bureau. For additional 
information concerning the information collection(s) contained in this 
document, contact Les Smith at 202-418-0217 or via the Internet at 
[email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice 
of Proposed Rulemaking (NPRM) in CG Docket No. 02-278 and CC Docket No. 
92-90, FCC 02-250, released September 18, 2002. The full text of this 
document is available on the Commission's Web site Electronic Comment 
Filing System and for public inspection during regular business hours 
in the FCC Reference Center, Room CY-A257, 445 12th Street, SW., 
Washington, DC 20554.

Paperwork Reduction Act

    This NPRM contains a modified information collection. The 
Commission, as part of its continuing effort to reduce paperwork 
burdens, invites the general public and the Office of Management and 
Budget (OMB) to comment on the information collections contained in 
this NPRM, as required by the Paperwork Reduction Act of 1995, Public 
Law 104-13. Public and agency comments are due at the same time as 
other comments on this NPRM; OMB notification of action is due 60 days 
from date of publication of this NPRM in the Federal Register. Comments 
should address: (a) Whether the proposed collection of information is 
necessary for the proper performance of the functions of the 
Commission, including whether the information shall have practical 
utility; (b) the accuracy of the Commission's burden estimates; (c) 
ways to enhance the quality, utility, and clarity of the information 
collected; and (d) ways to minimize the burden of the collection of 
information on the respondents, including the use of automated 
collection techniques or other forms of information technology.
    Only those proposals that might change an information collection 
requirement are discussed below.
    OMB Control Number: 3060-0519.
    Title: Rules and Regulations Implementing the Telephone Consumer 
Protection Act (TCPA) of 1991, NPRM, CG Docket No. 02-278 and CC Docket 
No. 92-90.
    Form Number: N/A.
    Type of Review: Revision of a currently approved collection.
    Respondents: Business or other for-profit entities; Not-for-profit 
institutions.
    Number of Respondents: 30,000.
    Estimated Time Per Response: 55.1 hours (average).
    Frequency of Response: Recordkeeping; On occasion reporting 
requirement; Third Party disclosure.
    Total Annual Burden: 1,653,600 hours.
    Total Annual Costs: None.
    Needs and Uses: The current total public disclosure and 
recordkeeping burden for collections of information under the TCPA 
rules is 936,000 hours, as stated most recently in the Commission's OMB 
submission to extend approval of the information collection in 
connection with the TCPA rules.

1. Additional Hour Burden for Company-Specific Do-Not-Call List 
Requirements

    In this NPRM, the Commission seeks comment on the current 
recordkeeping requirement on companies to maintain lists of telephone 
subscribers who do not wish to be contacted by telephone. Taking into 
account more recent estimates on the number of telemarketing calls made 
daily in the United States, we estimate that the requirement to 
maintain such lists may result in an additional 291,200 burden hours.

2. Proposal That the Commission Require Common Carriers To Inform 
Subscribers of the Option To Register With a National Do-Not-Call List 
and To Inform Any Telemarketers To Which They Provide Services of the 
Do-Not-Call Requirements

    We estimate that any requirement on common carriers to notify 
telemarketers and consumers of a national do-not-call list will account 
for an additional burden of 396,400 hours.

3. Proposal That the Commission Adopt Certain Recordkeeping 
Requirements

    The Commission also seeks comment on whether to adopt certain 
recordkeeping requirements that must be met before companies may avail 
themselves of any ``safe harbor'' protections for violating the do-not-
call rules. Companies that conduct telemarketing already maintain their 
own do-not-call lists and many of them must reconcile their lists with 
state do-not-call lists. We believe that any additional recordkeeping 
burden as a result of specific ``safe harbor'' requirements, 
particularly the verifiable authorizations, would be minimal. We 
estimate that this requirement will account for one hour of 
recordkeeping burden per company, or an additional 30,000 hours.

Synopsis of NPRM

    1. It has been nearly ten years since the Commission adopted a 
broad set of rules to curb unwanted telephone solicitations in the TCPA 
Order (57 FR 48333, October 23, 1992). In this NPRM, we seek to review 
the practices used to market goods and services over the telephone and 
facsimile machine that are the focus of the TCPA and the Commission's 
implementing regulations. In doing so, we ask whether the Commission 
should: (1) refine its existing rules on the use of autodialers, 
prerecorded messages, and unsolicited facsimile advertisements, to 
account for technological developments in recent years and emerging 
telemarketing practices; (2) adopt any additional rules as permitted by 
the statute to ensure that our telemarketing requirements protect the 
privacy of individuals and permit legitimate telemarketing practices; 
and (3) reconsider the option of establishing a national do-not-call 
list as authorized by Congress in the TCPA. On the subject of a 
national do-not-call list, we are particularly interested in comments 
addressing those entities not covered by the FTC's proposed national

[[Page 62669]]

do-not-call database as well as the interplay between a national 
registry and state do-not-call lists. We request that commenters 
address issues relating to our current rules separately from those 
issues relating to a national do-not-call list.
    2. In evaluating the issues in this NPRM, we will be mindful of the 
constitutional standards applicable to governmental regulations of 
commercial speech articulated in Central Hudson Gas & Elec. Corp. v. 
Public Service Commission. In order to determine whether restrictions 
on commercial speech survive ``intermediate scrutiny,'' Central Hudson 
sets out a four-part test. Central Hudson asks first whether the speech 
in question concerns illegal activity or is misleading, in which case 
the government may freely regulate the speech. If the speech is not 
misleading and does not involve illegal activity, the court applies the 
rest of the four-part test to the government's regulation. The second 
prong of Central Hudson examines whether the government has a 
substantial interest in regulating the speech. Third, the government 
must show that the restriction on commercial speech directly and 
materially advances that interest. Finally, the regulation must be 
narrowly tailored. Narrowly tailored means that the government's 
restriction on speech reflects a ``carefu[l] calculat[ion of] the costs 
and benefits associated with the burden on speech imposed by its 
prohibition.'' To the extent that any proposed changes to our current 
rules implicate these constitutional standards, we seek comment on such 
implications.

1. TCPA Rules

a. Company-Specific Do-Not-Call Lists
    3. The TCPA directs the Commission to ``compare and evaluate 
alternative methods and procedures . . . for their effectiveness in 
protecting [residential telephone subscribers'] privacy rights'' to 
avoid receiving unwanted telephone solicitations. In the TCPA Order, 
the Commission determined that rules requiring telemarketers to 
maintain their own lists of consumers who did not wish to be called 
sufficiently balanced consumer interests in limiting unsolicited 
advertising with telemarketers' interests in providing beneficial 
services to consumers. The company-specific do-not-call approach 
protects residential telephone subscriber privacy by requiring 
telemarketers to place a consumer on a do-not-call list if the consumer 
asks not to receive further solicitations.
    4. We now seek comment on the overall effectiveness of the company-
specific do-not-call approach in providing consumers with a reasonable 
means to curb unwanted telephone solicitations. We recognize that some 
consumers may feel that receiving product and service information by 
telephone helps them reap the benefits of a competitive marketplace; 
such consumers may value the savings and convenience that telemarketing 
often provides. Other consumers may wish to limit, or even stop 
altogether, the number of telemarketing calls they receive. Given the 
volume of telemarketing calls, we seek comment on whether the company-
specific do-not-call approach adequately balances the interests of 
those consumers who wish to continue receiving telemarketing calls, and 
of the telemarketers who wish to reach them, against the interests of 
those who object to such sales calls. We note that, under the company-
specific do-not-call approach, consumers must repeat their request not 
to be called on a case-by-case basis as calls are received. We seek 
comment on whether this approach is unreasonably burdensome for 
consumers. We also seek comment on how effective such requests have 
been in practice in preventing unwanted telephone solicitations. For 
example, we seek comment on whether such requests are typically 
honored, whether consumers continue to receive calls for some period of 
time after requesting that they be placed on a do-not-call list, and 
whether some telemarketers hang up before consumers can assert their 
``do-not-call'' rights. In addition, we seek comment on whether 
consumers with hearing and speech disabilities often may be unable to 
convey a request not to be called to telemarketers.
    5. As discussed above, changes in the marketplace and technological 
innovations since the Commission adopted its TCPA rules in 1992 may 
have reduced the effectiveness of the company-specific approach. For 
example, the widespread use of predictive dialers and answering machine 
detection technology results in many ``hang-up'' or ``dead air'' calls 
in which the consumer has no opportunity to request that the 
telemarketer not call in the future. The FTC indicates that use of 
predictive dialers has increased dramatically in the past decade. The 
FTC notes that many consumers feel frightened, threatened, or harassed 
when receiving a pattern of such hang-up calls. In addition, there is 
no way for the consumer to determine whether such calls are placed by 
telemarketers or may be part of some illegitimate conduct. Such calls 
may also be particularly trying for the elderly and persons with 
disabilities who may have difficulty reaching the phone only to be 
disconnected. Such calls may also be disruptive to the increasing 
number of individuals who now work from home by tying up telephone 
lines or disconnecting telecommuters from the Internet. We seek comment 
on what, if any, legitimate business or commercial speech interest is 
promoted by these calls. We seek comment on these issues and any other 
impact that changes in the telemarketing industry over the last decade 
have had on the overall effectiveness of the company-specific approach.
    6. In the TCPA Order, the Commission enumerated a number of 
advantages both to consumers and businesses in adopting a company-
specific do-not-call approach. In particular, the Commission concluded 
that company-specific do-not-call lists: (1) Were already maintained by 
many telemarketers; (2) allow residential subscribers to selectively 
halt calls from telemarketers; (3) allow businesses to gain useful 
information about consumer preferences; (4) protect consumer 
confidentiality because the lists would not be universally accessible; 
and (5) impose the costs of protecting consumers on telemarketers 
rather than telephone companies or consumers. We seek comment on 
whether these and any other potential advantages of the company-
specific do-not-call approach remain valid today. In addition, we seek 
comment on whether the company-specific approach should be retained if 
the FTC, either acting alone or in conjunction with the Commission, 
adopts a national do-not-call list. Under such circumstances, we seek 
comment as to whether the benefits of retaining company-specific do-
not-call lists to consumers would continue to outweigh the costs to 
telemarketers. Parties are strongly encouraged to provide empirical 
studies or other specific evidence whenever possible to support their 
arguments.
    7. If the Commission concludes that it should retain the company-
specific do-not-call lists, we seek comment on whether the Commission 
should consider any additional modifications that would allow consumers 
greater flexibility to register on such lists. For example, we seek 
specific comment on whether companies should be required to provide a 
toll-free number and/or a website that consumers can access to register 
their name on the do-not-call list. In addition, we seek comment on 
whether any additional measures should be taken to ensure that 
consumers with disabilities have the

[[Page 62670]]

same opportunity as other consumers to request that they be placed on 
do-not-call lists. We also seek comment on whether companies should be 
required to respond affirmatively to such requests or otherwise provide 
some means of confirmation so that consumers may verify that their 
requests have been processed. As a related matter, we seek comment as 
to whether the Commission should set a specific time frame for 
companies to process do-not-call requests. We also ask whether the 
requirement that companies honor do-not-call requests for ten years is 
a reasonable length of time for consumers and telemarketers. In 
addition, we seek comment on any possible Commission or industry 
initiatives that would better inform consumers of their right to 
request placement on a company's do-not-call list. We also seek comment 
on the effectiveness of any private sector initiatives, such as the 
Direct Marketing Association's Telephone Preference Service, in 
reducing unwanted sales calls. Are there any industry ``best 
practices'' that might provide telemarketers with possible safe harbors 
from liability for violating our do-not-call rules? Finally, we seek 
comment on whether our rules should be modified to minimize unnecessary 
burdens on telemarketers. We seek comment on these and any other 
modifications that commenters may suggest that would better balance the 
goal of limiting unsolicited advertising against telemarketers' burdens 
in conducting beneficial or otherwise legitimate telemarketing 
practices.
    8. Interplay of sections 222 and 227. The Commission has recently 
released an Order implementing section 222 of the Communications Act of 
1934, as amended. Section 222, entitled ``Privacy of Customer 
Information,'' obligates telecommunications carriers to protect the 
confidentiality of certain information. In the CPNI Order (67 FR 59205, 
September 20, 2002), the Commission determined that a 
telecommunications carrier may use a customer's CPNI to market various 
services to a customer if that customer has provided its carrier with 
appropriate consent. The section 227 rules require telemarketers to 
maintain their lists of consumers who do not wish to be called and to 
place a consumer on a do-not-call list if the consumer asks not to 
receive further solicitations.
    9. We seek comment broadly on the interplay between sections 222 
and 227. For example, if an individual places her name on her carrier's 
do-not-call list under section 227 (or a national do-not-call list, if 
one were implemented), should such an express request not to be 
contacted by means of the telephone be honored even though the customer 
may also have provided implied (opt-out) consent under section 222 for 
use and disclosure of her CPNI? We believe that a consumer's request to 
be placed on a telecommunications carrier's do-not-call list limits 
that carrier's ability to market to that consumer over the telephone. 
The carrier, however, may still market to that consumer, using her 
CPNI, in other ways (e.g., direct mail, email, etc.). Honoring a do not 
call request under section 227 does not render a consent under section 
222 a nullity, but instead merely limits the manner of contact (i.e., 
marketing over the telephone) consistent with the express request of 
the customer under section 227. Further, we believe it likely that 
permitting a section 222 opt-out consent to eliminate or trump a 
section 227 do not call request would lead to customer confusion 
concerning privacy rights and the actions required to secure those 
rights. We request comment on our tentative conclusion, as well as on 
the rationale underlying that conclusion. We also request comment on 
whether we should reach that same tentative conclusion where the form 
of consent provided under section 222 is an express opt-in consent. 
Commenters should also analyze those constitutional considerations that 
may influence our determination, and explain with particularity how 
their recommendations are consistent with first amendment requirements.
    10. As discussed below, the Commission's rules permit an exemption 
for companies to deliver artificial or prerecorded message calls to 
consumers with whom they have an ``established business relationship.'' 
The Commission seeks comment on what effect the established business 
relationship exemption might have on the telecommunications industry, 
if a national do-not-call list is established. Should we consider 
modifying the definition of ``established business relationship'' so 
that a company that has a relationship with a customer based on one 
type of product or service may not call consumers on the do-not-call 
list to advertise a different service or product?
b. Network Technologies
    11. We seek comment on whether network technologies have been 
developed over the last decade that may allow consumers to avoid 
receiving unwanted telephone solicitations. If so, we seek comment on 
whether and how these technologies should influence our analysis of the 
merits of revising our company-specific do-not-call rules or possibly 
adopting a national do-not-call list. In particular, we seek comment on 
what factors the Commission should consider in deciding whether to rely 
on these technologies. In the 1992 TCPA Order, the Commission rejected 
the network technology method of avoiding unwanted telephone 
solicitations. In particular, the Commission considered whether to 
require telemarketers to use a special area code or telephone number 
prefix that would allow consumers to block such calls using automatic 
number identification (ANI) or a caller ID service. Based on the costs 
and technical barriers to implement this alternative, however, the 
Commission concluded that this solution was not the best means for 
accomplishing the objectives of the TCPA at that time. The Commission 
also noted that it was unclear whether fees on telemarketers would be 
sufficient to cover the costs of making call blocking technology 
universally available, raising the possibility that such costs would be 
passed on to residential telephone subscribers, in violation of the 
TCPA. We seek comment on whether these concerns remain persuasive 
today. We seek comment on whether we should consider any other 
technologies in this context, and, if so, we ask commenters to include 
a brief explanation of how these technologies operate and how much they 
would cost to implement.
    12. Under the Commission's rules, with certain limited exceptions, 
common carriers using Signaling System 7 (SS7) and offering or 
subscribing to any service based on SS7 functionality are required to 
transmit the calling party number (CPN) associated with an interstate 
call to interconnecting carriers. As discussed in greater detail below, 
we take this opportunity to seek comment on whether the Commission 
should consider any additional ``caller ID'' requirements in the 
context of its review of the TCPA rules. Specifically, should the 
Commission require telemarketers to transmit the name and telephone 
number of the calling party, when possible, or prohibit them from 
blocking or altering the transmission of such information? We also seek 
comment on what impact any changes to our ``caller ID'' rules might 
have on existing state ``caller ID'' rules.
c. Autodialers
    13. Definition. Section 227 and the Commission's implementing 
regulations define automatic telephone dialing systems as ``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.'' The Commission seeks

[[Page 62671]]

comment on the definition of ``automatic telephone dialing system'' (or 
``autodialer'') and whether it is necessary to identify the 
technologies section 227 is designed to address. The TCPA and 
Commission's rules prohibit calls using an autodialer to emergency 
telephone lines, to the telephone line of a guest room of a health care 
facility, 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. In 
addition, Commission rules provide that all artificial or prerecorded 
messages delivered by an autodialer shall, at the beginning of the 
message, state the identity of the entity initiating the call and, 
during the message, the telephone number or address of such entity. The 
Commission has received inquiries about whether certain technologies 
fall within these restrictions, given that they may or may not be 
classified as ``automatic telephone dialing systems.''
    14. The legislative history of the TCPA suggests that autodialer-
generated calls are more intrusive to the privacy concerns of the 
called party than live solicitations. An autodialer can generate far 
more calls to residences than a telemarketer can manually. In addition, 
an autodialer is frequently used to send artificial or prerecorded 
messages, which the legislative history suggests are often a greater 
nuisance and invasion of privacy than calls placed by ``live'' persons. 
We seek comment on this reading of the legislative history and whether 
Congress intended the definition of ``automatic telephone dialing 
system'' to be broad enough to include any equipment that dials numbers 
automatically, either by producing 10-digit telephone numbers 
arbitrarily or generating them from a database of existing telephone 
numbers. The Commission recognizes that in the last decade new 
technologies have emerged to assist telemarketers in dialing the 
telephone numbers of potential customers. More sophisticated dialing 
systems, such as predictive dialers and other electronic hardware and 
software containing databases of telephone numbers, are now widely used 
by telemarketers to increase productivity and lower costs. Therefore, 
we ask commenters to provide information on the various technologies 
used to dial telephone numbers. We invite comment on the use of random 
and sequential number generators and whether an autodialer can generate 
phone calls from a database of existing numbers. If a particular 
technology generates numbers at random, how does a telemarketer comply 
with the law to avoid calling emergency phone lines, health care 
facilities, pager numbers, and wireless telephone numbers? In light of 
new technologies and the legislative history, is there a need to refine 
the definition in our rules to better balance the goal of limiting 
unsolicited advertising against the burdens on telemarketers and their 
interest in providing beneficial telemarketing services?
    15. Autodialed Calls to Residences and Businesses. Additionally, 
the Commission seeks input from commenters about the costs and benefits 
of adopting rules to further restrict the use of autodialers to dial 
residential and business telephone numbers. We specifically seek 
comment on the practice of using automatic telephone dialing equipment 
to dial large blocks of telephone numbers in order to identify lines 
that belong to telephone facsimile machines. Should the Commission 
adopt rules to restrict this practice?
    16. Predictive Dialers. We seek specific comment on whether a 
predictive dialer, as a form of automatic telephone dialing system, is 
subject to the ban on calls to emergency lines, health care facilities, 
paging services, and any service for which the called party is charged 
for the call. Specifically, we ask whether a predictive dialer that 
dials telephone numbers using a computer database of numbers falls 
under the TCPA's restrictions on the use of autodialers. We seek 
comment on whether the Commission should adopt rules to further 
restrict the use of predictive dialers to dial consumers' telephone 
numbers. In addition to automatically dialing numbers, predictive 
dialers are set up to ``predict'' the average time it takes for a 
consumer to answer the phone and when a telemarketer will be free to 
take the next call. When a consumer answers the telephone, a predictive 
dialer transfers the call to an available telemarketer. When a 
predictive dialer simultaneously dials more numbers than the 
telemarketers can handle, some of the calls are disconnected. The 
consumer may hear silence on the line as the call is being transferred 
or a ``click'' as the call is disconnected. In 1991, the Commission 
received a total of 757 complaints regarding calls placed to 
subscribers by autodialers. From June 2000 to December 2001, the 
Commission received over 1,500 inquiries about predictive dialing 
alone. In addition, the consumer alert titled ``Predictive Dialing: 
Silence on the Other End of the Line'' has received over 16,000 hits on 
the Commission's website since the alert was posted in February of 
2001. In light of the increased use of predictive dialers, the 
Commission seeks recommendations on what approaches we might take to 
minimize any harm that results from the use of predictive dialers. 
Cognizant of the benefits of predictive dialing to the telemarketing 
industry, the Commission invites comment on whether requiring a maximum 
setting on the number of abandoned calls or requiring telemarketers who 
use predictive dialers to also transmit caller ID information are 
feasible options for telemarketers. We also seek comment on whether 
prohibiting telemarketers from blocking caller ID information would 
alleviate the harm that results when predictive dialers abandon calls. 
As noted earlier, under the Commission's caller ID rules, common 
carriers using SS7 and offering or subscribing to any service based on 
SS7 functionality are required to transmit the CPN associated with an 
interstate call to interconnecting carriers. If the Commission were to 
adopt rules regarding the transmission of caller ID information by 
telemarketers, should we consider amending the caller ID rules in any 
way to ensure the two sets of rules are consistent? We also invite 
commenters to suggest alternative approaches to the problems associated 
with abandoned calls.
    17. Answering Machine Detection. Another reason for ``dead air'' 
may be the use of Answering Machine Detection (AMD) technology that 
monitors calls once they are answered. According to DialAmerica 
Marketing, Inc., AMD can be used along with automatic dialing systems 
to deliver telemarketing calls. AMD may either send a prerecorded 
message to an answering machine or transfer the call to a telemarketer 
once it detects that a customer has answered the call. According to 
comments filed with the FTC, if the AMD detects ``noise'' (e.g., the 
word ``Hello'') followed by silence, it assumes that a person has 
answered the phone. If the AMD detects noise for several seconds, it 
assumes that it is an answering machine message. In either case, the 
AMD may be programmed to disconnect the call or send a prerecorded 
message to an answering machine. In the event that a person has 
answered the telephone and the call is transferred to a sales 
representative, the use of AMD involves the monitoring of the line for 
several seconds and may create ``dead air'' while the call is being 
transferred. The Commission seeks comment on the use of AMD by the 
telemarketing industry and whether AMD technology

[[Page 62672]]

is responsible for much of the ``dead air'' consumers encounter. We 
also seek comment on whether consumers are most frustrated with the 
delay in response as the call is transferred to a telemarketer, or with 
calls that are abandoned entirely, or with both. Would restrictions on 
the use of AMD serve to alleviate the problem of ``dead air?'' Should 
restrictions on AMD be implemented in conjunction with restrictions on 
autodialers and predictive dialers? Commenters are strongly encouraged 
to support their arguments with empirical studies or other specific 
evidence.
d. Identification Requirements
    18. Commission regulations require that a person or entity making a 
telephone solicitation must provide the called party with the name of 
the individual caller, the name of the person or entity on whose behalf 
the call is being made, and a telephone number or address at which the 
person or entity may be contacted. The term ``telephone solicitation'' 
is defined to mean the initiation of a telephone call or message for 
the purpose of encouraging the purchase or rental of * * * property, 
goods, or services * * * ''. The TCPA clearly imposes identification 
requirements upon artificial and prerecorded voice messages and our 
identification rules apply without limitation to ``any telephone 
solicitation to a residential telephone subscriber.'' Nonetheless, we 
seek comment on whether we should modify our rules to state expressly 
that the identification requirements apply to otherwise lawful 
artificial or prerecorded messages, as well as to live solicitation 
calls.
    19. Under Commission rules, telemarketers who use autodialers to 
send artificial or prerecorded messages similarly must identify 
themselves by name and phone number or address. We seek comment on the 
Commission's identification requirement at 47 CFR 64.1200(d) and its 
applicability to predictive dialing and other circumstances involving 
abandoned telemarketing calls. We note that, in its discussion on 
predictive dialing, the FTC maintains that telemarketers who abandon 
calls are violating section 310.4(d) of the Telemarketing Sales Rule. 
The FTC states that, under its rules, when a telemarketer calls a 
consumer, the telemarketer is required to disclose identifying 
information to the person receiving the call. According to the FTC, the 
consumer is ``receiving the call'' when the consumer answers the 
telephone. Therefore, if a predictive dialer abandons the call before 
the telemarketer identifies himself or herself, the FTC proposes that 
the telemarketer is violating the Telemarketing Sales Rule. We seek 
comment on whether the Commission should reach a similar conclusion.
e. Artificial or Prerecorded Voice Messages
(i) Commercial and Non-Commercial Calls
    20. The TCPA and Commission rules prohibit telephone calls to 
residences using an artificial or prerecorded voice to deliver a 
message without the prior express consent of the called party, unless 
the call is for emergency purposes or is specifically exempted. 
Commission rules exempt calls that are non-commercial as well as 
commercial calls that do not include the transmission of any 
unsolicited advertisement. The rules define ``unsolicited 
advertisement'' to mean ``any material advertising the commercial 
availability or quality of any property, goods, or services which is 
transmitted to any person without that person's prior express 
invitation or permission.'' While the Commission has declined to create 
specific categories of non-commercial exemptions (other than for tax-
exempt nonprofit organizations, discussed below), it noted that 
messages that do not seek to sell a product or service do not tread 
heavily upon the consumer interests implicated by section 227. 
Therefore, the Commission determined that calls conducting research, 
market surveys, political polling, or similar activities which do not 
involve solicitation as defined by the rules are exempt from the 
prohibition on prerecorded messages. We note here that the exemption 
for non-commercial calls applies to a wide range of entities, some of 
which are engaged in political or religious discourse. This Commission 
does not intend in this NPRM to seek comment on the exemption as it 
applies to political and religious speech.
    21. We specifically seek comment on artificial or prerecorded 
messages containing offers for free goods or services (including free 
estimates or free analyses) and messages with ``information-only'' 
about products. We also invite comment about calls seeking people to 
help sell or market a business' products (a kind of ``help wanted'' 
message). We note that, while these calls do not purport to sell 
something, they often contain messages advertising the quality of 
certain goods or services and are intended to generate future business. 
Such messages usually include phone numbers that consumers can call to 
obtain further information, at which time the seller offers additional 
goods or services for purchase. Such calls arguably have a dual 
purpose, as in the case when a business calls to inquire about a 
customer's satisfaction with a product or service already purchased, 
but is nevertheless motivated in part by the desire to ultimately sell 
additional goods or services. The Commission therefore seeks comment on 
whether our rules would better serve consumers and businesses if they 
more explicitly addressed those calls that include information about a 
product or service but do not immediately solicit a purchase. Would it 
balance the interests of consumers and telemarketers more effectively 
for us to clarify that calls containing offers for free goods or 
services are prohibited without the prior express consent of the called 
party? Would such action assist telemarketers in their efforts to 
comply with our rules, as well as reduce the number of unwanted 
telephone solicitations? Again, as stated above, we note that we are 
not seeking comment regarding political or religious speech.
    22. Based on public inquiries, we also seek comment on prerecorded 
messages sent by radio stations or television broadcasters that 
encourage telephone subscribers to tune in at a particular time for a 
chance to win a prize or some similar opportunity. Does the Commission 
need to specifically address these kinds of telemarketing calls, and, 
if so, what rules might we adopt to appropriately balance consumers' 
interest in restricting unsolicited advertising with commercial 
freedoms of speech?
(i) Tax-Exempt Nonprofit Organizations
    23. The TCPA excludes calls or messages by tax-exempt nonprofit 
organizations from the definition of ``telephone solicitation.'' In the 
TCPA Order, the Commission concluded that calls by tax-exempt nonprofit 
organizations also should be exempt from the prohibition on prerecorded 
messages to residences as non-commercial calls. Noting that the TCPA 
seeks primarily to protect subscribers from unrestricted commercial 
telemarketing activities, the Commission found no evidence to show that 
non-commercial calls represented as serious a concern for telephone 
subscribers as unsolicited commercial calls. In addition, the 
Commission determined that calls made by independent telemarketers on 
behalf of tax-exempt nonprofit organizations are not subject to our 
rules governing telephone solicitations. We point out,

[[Page 62673]]

however, that the Commission has received inquiries over the years 
about certain practices by nonprofit organizations. We take this 
opportunity to seek comment on calls made jointly by nonprofit and for-
profit organizations and whether they should be exempt from the 
restrictions on telephone solicitations and prerecorded messages. For 
example, if a nonprofit organization calls consumers to sell another 
company's magazines and receives a portion of the proceeds, should such 
calls fall within the exemption? We emphasize in this NPRM that the 
exemption for tax-exempt nonprofit organizations applies to religious 
and political organizations that have likewise received tax exempt 
status from the U.S. government. We note here that the exemption for 
non-commercial calls applies to a wide range of entities, some of which 
are engaged in political or religious discourse. In this NPRM, we do 
not seek comment on the exemption as it applies to political and 
religious speech. We emphasize that we do not seek comment in this 
notice on the exemption as it applies to political and religious speech 
whether conducted by nonprofit organizations or for-profit 
organizations on behalf of nonprofit organizations. We note that the 
statute and our rules clearly apply already to messages that are 
predominantly commercial in nature, and that we will not hesitate to 
consider enforcement action should the provider of an otherwise 
commercial message seek to immunize itself by simply inserting 
purportedly ``non-commercial'' content into that message.
(ii) Established Business Relationship
    24. In the TCPA Order, the Commission determined that, based on the 
record and legislative history, the TCPA permits an ``established 
business relationship'' exemption from the restrictions on artificial 
or prerecorded message calls to residences. The Commission concluded 
that a solicitation to someone with whom a prior business relationship 
exists does not adversely affect subscriber privacy interests. The 
Commission defined the term ``established business relationship'' to 
mean ``a prior or existing relationship formed by a voluntary two-way 
communication between a person or entity and a residential subscriber 
with or without an exchange of consideration, on the basis of an 
inquiry, application, purchase or transaction by the residential 
subscriber regarding products or services offered by such person or 
entity, which relationship has not been previously terminated by either 
party.'' We seek comment on whether any circumstances have developed 
that would justify revisiting these conclusions. If so, would 
revisiting the exemption interfere with ongoing business relationships 
or impede communications between businesses and their customers, 
particularly for small businesses? Should the Commission specify by 
rule the particular circumstances that would establish the requisite 
business relationship? We seek comment specifically on whether we 
should clarify the type of consumer inquiry that would create an 
established business relationship for purposes of the exemption. For 
example, need we clarify that a consumer's request for information 
related to business hours or directions to a business location is not 
an inquiry that would establish the requisite business relationship? 
The Commission also invites comment on whether merely asking at a 
previous time about a company's products, services, or prices could 
establish a prior business relationship. If so, is there any time 
limitation to such relationships?
    25. We also seek comment on the interplay between the established 
business relationship exemption and a customer's request not to receive 
calls from a person or entity with which the customer has a prior 
business relationship. In the TCPA Order, the Commission noted that a 
business may not make telephone solicitations to an existing or former 
customer who has asked to be placed on that company's do-not-call list. 
The Commission explained that a customer's request to be placed on the 
company's do-not-call list terminates the business relationship between 
the company and that customer for the purpose of any future 
solicitation. We seek comment on the effect of a do-not-call request on 
a prior business relationship. Specifically, should a company be 
obligated to honor a do-not-call request even when the customer 
continues to do business with the entity making the solicitations? Or 
is the consumer obligated to first terminate all business with the 
company before the company must suspend solicitation calls to that 
customer? For example, must a consumer who subscribes to a daily 
newspaper or holds a credit card cancel the newspaper subscription or 
credit card in order to stop future solicitation calls from those 
businesses?
f. Time of Day Restrictions
    26. In the TCPA Order, the Commission concluded that it was in the 
public interest to impose time of day restrictions on telephone 
solicitations as reasonable limitations on telemarketing to residences. 
Accordingly, the Commission implemented regulations that prohibited 
unsolicited sales calls before 8:00 am and after 9:00 pm local time at 
the called party's location. As part of our review of the current TCPA 
rules, we seek comment on how effective these time restrictions have 
been at limiting objectionable solicitation calls. The FTC's 
Telemarketing Sales Rule also includes calling time restrictions that 
are consistent with the FCC's rules on calling hours. The FTC indicates 
that the current calling time restrictions provide reasonable 
protections for consumers' privacy while not burdening the 
telemarketing industry. The FTC also notes that altering the calling 
hours under the TSR would create a conflict in the federal [FCC] 
regulations governing telemarketers. We seek comment on this reasoning. 
In addition, should more restrictive calling times be adopted only in 
the event a national do-not-call list is not established, or could they 
work in conjunction with a national registry to better protect 
consumers from receiving telephone solicitations to which they object?
g. Unsolicited Facsimile Advertisements
    27. The TCPA prohibits the transmission of unsolicited 
advertisements by telephone facsimile machines and requires those 
sending any messages via telephone facsimile machines to identify 
themselves to message recipients. We seek comment on the continued 
effectiveness of these regulations and on any developing technologies, 
such as computerized fax servers, that might warrant revisiting the 
rules on unsolicited faxes. In considering any possible rule changes, 
we will take into account both the record developed during this 
proceeding, as well as the Commission's extensive enforcement 
experience regarding the rules on unsolicited fax advertisements.
(i) Prior Express Invitation or Permission
    28. The TCPA prohibits the sending of unsolicited advertisements to 
telephone facsimile machines. The Commission's rules define an 
unsolicited advertisement as ``any material advertising the commercial 
availability or quality of any property, goods, or services which is 
transmitted to any person without that person's prior express 
invitation or permission.'' We seek comment on the need to clarify what 
constitutes prior express invitation or permission for purposes of 
sending an unsolicited fax. In the 1995 TCPA

[[Page 62674]]

Reconsideration Order (60 FR 42068, August 15, 1995), the Commission 
determined that the intent of the TCPA was not to equate mere 
distribution or publication of a telephone facsimile number with prior 
express permission or invitation to receive such advertisements. The 
Commission determined that given the variety of ways in which fax 
numbers may be distributed, it was appropriate to treat the issue of 
consent in any complaint on a case-by-case basis. We seek comment on 
the circumstances in which facsimile numbers are distributed or 
published by individuals and businesses. We invite comment specifically 
on the issue of membership in a trade association or similar group. For 
example, should the publication of one's fax number in an 
organization's directory constitute an invitation or permission to 
receive an unsolicited fax? The Commission also seeks comment on what 
effect its case-by-case analysis has had on the number of unsolicited 
faxes sent to consumers and on costs incurred by the recipients of such 
faxes.
(ii) Established Business Relationship
    29. We seek comment on the Commission's determination that a prior 
business relationship between a fax sender and recipient establishes 
the requisite consent to receive telephone facsimile advertisement 
transmissions. This determination has amounted to an effective 
exemption from the prohibition on sending unsolicited facsimile 
advertisements, although our rules do not expressly provide for such an 
exemption. We ask whether, in practice, the Commission's previous 
determination has served to protect ongoing business relationships and 
whether it has had any adverse impact on consumer privacy. If we were 
to preserve the ``exemption,'' should we amend our rules to expressly 
provide for it? We also seek comment on the need to clarify the scope 
of the ``exemption.'' For instance, should a company that has an 
established relationship with a customer based on one type of product 
or service also be allowed to send unsolicited faxes about a different 
service or product? We invite comment on a consumer's authority to stop 
faxes to his facsimile number from a business with which he has an 
established relationship. Is it necessary for the Commission to adopt 
rules to protect consumers from unsolicited faxes in such 
circumstances?
(iii) Fax Broadcasters
    30. We seek comment on whether the Commission should address 
specifically in the rules the activities of ``fax broadcasters'' who 
transmit other entities' advertisements to a large number of telephone 
facsimile machines for a fee. In the TCPA Order, the Commission stated 
that ``[i]n the absence of a ``high degree of involvement or actual 
notice of an illegal use and failure to take steps to prevent such 
transmissions,'' common carriers will not be held liable for the 
transmission of a prohibited facsimile message.'' When asked whether 
common carriers' exemption from liability extended to entities that 
engage in fax broadcasting but are not common carriers, the Commission 
found that ``[t]he entity or entities on whose behalf facsimiles are 
transmitted are ultimately liable for compliance with the rule banning 
unsolicited facsimile advertisements, and that fax broadcasters are not 
liable for compliance with the rule.'' In a later order further 
addressing fax broadcasters' obligations under the TCPA rules, the 
Commission stated that ``[f]acsimile broadcast service providers are 
businesses or individuals that transmit messages on behalf of other 
entities to selected destinations and that do not determine either the 
message content or to whom they are sent.'' ome fax broadcasters 
maintain lists of telephone facsimile numbers that they use to direct 
their clients' advertisements. This practice, among others, indicates a 
fax broadcaster's close involvement in sending unlawful fax 
advertisements and may subject such entities to enforcement action 
under the TCPA and our existing rules. Based on the number of 
complaints and inquiries the Commission has received in the last few 
years on unwanted faxes, and the apparent prevalence of fax 
broadcasters that determine the destination of their clients' 
advertisements, we seek comment on whether the Commission should 
address specifically in the rules the activities of such fax 
broadcasters. Should the Commission amend the rules to state explicitly 
that certain fax broadcasting practices expose the fax broadcaster to 
liability under the TCPA and the Commission's rules? Should the 
Commission specify by rule the particular activities that would 
demonstrate a fax broadcaster's ``high degree of involvement'' in the 
unlawful activity of sending unsolicited advertisements to telephone 
facsimile machines? Would such a rule afford consumers a greater 
measure of protection from unlawful faxing than they already enjoy 
under existing rules? Would such a rule better inform the business 
community about the general prohibition on unsolicited fax advertising? 
Have the Commission's rules that require fax advertisements to identify 
the entity on whose behalf the messages are sent been effective at 
protecting consumers' rights to enforce the TCPA?
h. Wireless Telephone Numbers
    31. The TCPA and the Commission's rules specifically prohibit 
telephone calls using an autodialer or an artificial or prerecorded 
voice message to any telephone number assigned to a paging service, 
cellular telephone service, or any service for which the called party 
is charged for the call, except in emergencies or with the prior 
express consent of the called party. The Commission's rules also state 
that live telephone solicitations to residential telephone subscribers 
must comply with time of day restrictions and must institute procedures 
for maintaining do-not-call lists. The Commission has not opined on 
whether wireless subscribers or a subset thereof are ``residential 
telephone subscribers'' for purposes of these restrictions.
    32. Since 1991, the commercial wireless industry has grown 
dramatically, both in the number of subscribers and the amount of usage 
for each subscriber. A USA Today/CNN/Gallop poll found that almost one 
in five mobile telephony users regard their wireless phone as their 
primary phone. Also, many wireless consumers purchase large ``buckets'' 
of minutes at a fixed rate, which may have an impact on the way 
consumers perceive the costs of making and receiving calls on their 
wireless phones.
    33. We seek comment on the extent to which telemarketing to 
wireless consumers exists today. Specifically, we seek comment on 
whether consumers receive solicitations on their wireless phones, and 
the nature and frequency of such solicitations. We also seek comment on 
whether telemarketers are including or targeting wireless phone numbers 
in their telemarketing calls. Do telemarketers distinguish between 
wireless and wireline phone numbers and, if so, how?
    34. In addition, we seek comment on whether the Commission's TCPA 
rules are sufficient to address any issues identified above, or whether 
any revisions are necessary. For example, should wireless telephone 
numbers or a subset thereof be considered ``residential telephone 
numbers'' for the purposes of the Commission's rules on telephone 
solicitations? If so, should there be any different rules that apply to 
solicitations to wireless telephone

[[Page 62675]]

numbers than already would apply under Sec.  64.1200(e)?
    35. We note that the TCPA permits the Commission to exempt from the 
restrictions on autodialer or prerecorded message calls to wireless 
phone numbers ``calls to a telephone number assigned to a cellular 
telephone service that are not charged to the called party, subject to 
such conditions as the Commission may prescribe as necessary in the 
interest of the privacy rights this section is intended to protect.'' 
In the TCPA Order, the Commission concluded that calls made by cellular 
carriers to their subscribers for which the subscribers were not 
charged do not fall within the prohibitions on autodialers or 
prerecorded messages. We seek comment on whether there are other types 
of calls to wireless telephone numbers that are not charged to the 
called party, and whether such calls also should not fall within the 
prohibitions on autodialers or prerecorded messages.
    36. Lastly, we seek comment on any developments anticipated in the 
near future that may affect telemarketing to wireless phone numbers. 
For example, when consumers are able to port numbers from their 
wireline phones to wireless phones, or are assigned numbers from a pool 
of numbers rather than from a full central office code, how will 
telemarketers identify wireless numbers in order to comply with the 
TCPA? We therefore seek comment on the availability of any 
technological tools that would allow telemarketers to recognize numbers 
that have been ported from wireline to wireless phones or to recognize 
wireless numbers that have been assigned from a pool of numbers that 
formerly were all wireline. For example, we note that the public safety 
community is finalizing plans that would enable Public Safety Answering 
Points to identify the type of phone from which the caller is making an 
emergency call. The Number Portability Administration Center 
administrator, Neustar, has, however, limited access to this 
Interactive Voice Response (IVR) system to service providers, 
authorized law enforcement, and public safety agencies. Telemarketers 
currently do not have access to the IVR system. Should telemarketers be 
given access to the IVR system, or should access to the IVR system 
continue to be restricted to service providers, law enforcement, and 
public safety agencies? If telemarketers are granted access, will the 
IVR system be sufficient to enable them to determine whether a number 
serves a wireline or wireless subscriber? If telemarketers should not 
be given access to the IVR system, or if this system will be 
insufficient to identify whether a number serves a wireless or wireline 
subscriber, should a different system be developed, perhaps based on 
the IVR system, for use by telemarketers?
i. Enforcement
(i) Private Right of Action and Individual Complaints
    37. Based on the statutory language, the Commission determined that 
``[a]bsent state law to the contrary, consumers may immediately file 
suit in state court if a caller violates the TCPA's prohibitions on the 
use of automatic dialing system and artificial or prerecorded voice 
messages.'' The Commission also determined that the TCPA permits a 
consumer to file suit in state court if he or she has received more 
than one telephone call within any 12-month period by or on behalf of 
the same company in violation of the guidelines for making telephone 
solicitations. The Commission has continued to receive inquiries about 
a consumer's right to file suit against a person or entity that has 
made one phone call in violation of the TCPA rules. Should we clarify 
whether a consumer may file suit after receiving one call from a 
telemarketer who, for example, fails to properly identify himself or 
makes a call outside the time of day restrictions? In addition, 
telemarketers that are not common carriers are not currently subject to 
the informal complaint rules that require common carriers to reply to 
individual complaints upon notice of a complaint by the Commission. The 
Commission released an NPRM in February seeking comment on whether to 
extend the informal complaint rules to entities other than common 
carriers. We seek comment in this proceeding on whether the Commission 
should amend these informal complaint rules to apply to telemarketers.
(ii) State Law Preemption
    38. In the TCPA, Congress provided a standard for preemption of 
state law on autodialers, artificial or prerecorded voice messages, and 
telephone solicitations. The TCPA does not preempt ``any state law that 
imposes more restrictive intrastate requirements or regulations on, or 
which prohibits--(A) the use of telephone facsimile machines or other 
electronic devices to send unsolicited advertisements; (B) the use of 
automatic telephone dialing systems; (C) the use of artificial or 
prerecorded voice messages; or (D) the making of telephone 
solicitations.'' The Commission seeks comment on whether and, if so, to 
what degree, state requirements should be preempted. Some courts have 
held that the TCPA does not necessarily preempt less restrictive state 
laws on telemarketing. We seek comment on this interpretation. In 
addition, we ask whether preemption should depend on whether the state 
law in question applies solely to intrastate telemarketing or to 
interstate telemarketing as well. What conflicts between state 
telemarketing laws and federal law might warrant preemption?

2. National Do-Not-Call List

    39. Pursuant to section 227(c)(3) of the TCPA, the Commission ``may 
require the establishment and operation of a single national database 
to compile a list of telephone numbers of residential subscribers who 
object to receiving telephone solicitations, and to make that compiled 
list and parts thereof available for purchase.'' In this section, we 
seek comment on whether the Commission should revisit its determination 
not to adopt a national do-not-call list. Persistent consumer 
complaints regarding unwanted telephone solicitations indicate that the 
time may now be ripe to revisit this issue. We note that a national 
list might provide consumers with a one-step method for preventing 
telemarketing calls. This option might be less burdensome than 
repeating requests on a case-by-case basis, particularly in light of 
the number of entities that conduct telemarketing today. A national 
list might also be less burdensome for telemarketers, who, under the 
company-specific approach, must retain do-not-call records for a period 
of ten years. We also seek comment on the options for possible 
Commission action in conjunction with the FTC's proposal to adopt a 
nationwide do-not-call list for those entities over which it has 
jurisdiction and the proliferation of state-adopted do-not-call lists. 
We acknowledge that the FTC has not yet adopted final rules based on 
its proposal, and we note that we have the option to seek further 
comment to fully address the interplay between final FTC rules and 
possible Commission action.
    40. As discussed above, we invite comment in the context of our 
consideration of a national do-not-call list on the constitutional 
standards applicable to governmental regulation of commercial speech. 
Specifically, we seek comment on whether a national do-not-call list 
satisfies each of the standards articulated in Central Hudson, 
including the requirement that the regulation be narrowly tailored to 
ensure that it is no more extensive than

[[Page 62676]]

necessary to serve the governmental interest.
    41. In declining to adopt a national do-not-call list in 1992, the 
Commission concluded that a national database would be costly and 
difficult to establish and maintain in a reasonably accurate form. The 
Commission found that frequent updates would be required, regional 
telemarketers would be forced to purchase a national database, costs 
might be passed on to consumers, and the information compiled would 
present problems in protecting consumer privacy. The Commission noted 
that, because nearly one-fifth of all telephone numbers change each 
year, any such database would require frequent updates to remain 
accurate. The Commission also noted concerns in protecting the privacy 
of telephone subscriber information including whether the 
confidentiality of subscribers having unpublished or unlisted numbers 
could be maintained.
    42. We seek comment on any disadvantages to consumers or any other 
parties to establishing a national do-not-call list including whether 
the concerns noted by the Commission in declining to adopt a national 
do-not-call list in 1992 remain persuasive today. Specifically, we seek 
information regarding the potential costs of establishing and 
maintaining a national do-not-call database, the burdens on 
telemarketers of compliance with a national do-not-call database, and 
whether there should be any distinction on a national, regional, state, 
or local level or for small businesses. In particular, we seek comment 
on whether technological innovations in computers and software programs 
over the last ten years have mitigated, in any respect, concerns about 
the costs, accuracy, and privacy issues involved in establishing a 
national database. We also seek comment on how state commissions and 
parties involved in compiling and maintaining the state established do-
not-call lists have dealt with each of these issues. The information 
and experience acquired by these parties in the actual operation of 
such databases may prove particularly useful in this analysis. We also 
seek comment on what effect, if any, some combination of efforts by the 
FTC, states, and this Commission would have on the cost and privacy 
issues involved in developing and maintaining a national do-not-call 
list. We seek comment on whether a national do-not-call list provides 
any advantages to telemarketers in identifying those consumers who do 
not wish to be contacted.
    43. Section 227(c)(3) enumerates a number of specific requirements 
that the Commission must satisfy in adopting a national database. In 
relevant part, these include: (1) Specifying a method by which to 
select an entity to administer the database; (2) requiring each common 
carrier providing telephone exchange service to inform subscribers of 
the opportunity to object to receiving telephone solicitations; (3) 
specifying the methods by which subscribers may be informed, by the 
common carrier that provides service to the subscriber, of the 
subscriber's right to give or revoke a notification of an objection to 
receiving telephone solicitations; (4) specifying the methods by which 
such objections shall be collected and added to the database; (5) 
prohibiting any residential subscriber from being charged for giving or 
revoking such notification or being included in the database; (6) 
prohibiting any person from making or transmitting a telephone 
solicitation to the telephone number of any subscriber included in the 
database; (7) specifying the method by which any person desiring to 
make or transmit telephone solicitations will obtain access to the 
database and the costs to be recovered from such persons; (8) 
specifying the methods for recovering, from persons accessing the 
database, the cost involved in operating the database; (9) specifying 
the frequency with which the database will be updated and the method by 
which such updates will take effect; (10) designing the database to 
enable states to use it to administer or enforce state law; (11) 
prohibiting the use of the database for any purpose other than 
compliance with the requirements of section 227 and any such state law, 
and specifying methods for protection of the privacy rights of persons 
whose numbers are included in the database; and (12) requiring each 
common carrier providing services to any person for the purpose of 
making telephone solicitations to notify such persons of the 
requirements of this section and the regulations thereunder. We seek 
comment on what possible options the Commission might pursue that would 
satisfy the requirements listed above, as well as complement the FTC's 
proposal and the individual state do-not-call statutes and regulations. 
We note that while the FTC's proposal could incorporate some, if not 
all, of the twelve criteria above, the FTC is not required by statute 
to satisfy these requirements. Therefore, we ask whether these twelve 
requirements would preclude the Commission from adopting rules 
requiring common carriers and other entities under our TCPA 
jurisdiction to comply with a national do-not-call regime administered 
by the FTC, should the FTC adopt rules that are inconsistent with the 
TCPA.
    44. We recognize that the effectiveness and value of any national 
do-not-call list would be contingent upon an informed public. As noted 
above, Congress provided that, should the Commission establish a 
national do-not-call list, each common carrier providing telephone 
exchange service shall be required to inform its subscribers of the 
opportunity to object to telephone solicitations and the option to 
register with a national do-not-call list. As part of our ongoing 
efforts to ensure that consumers are aware of their rights under the 
TCPA, we will continue to disseminate our own public notices, fact 
sheets, and other information to publicize the rules applicable to 
telemarketing calls. In addition, should we establish a national do-
not-call list, we propose adopting rules that codify the statutory 
provisions requiring common carriers to notify their subscribers of the 
opportunity to place their telephone numbers on a national do-not-call 
list. We seek input on this proposal and any other suggestions to 
ensure that consumers are well informed.
    45. FTC Proposal to Adopt a Nationwide Do-Not-Call List. As noted 
above, the FTC has recently issued a Notice of Proposed Rulemaking 
seeking comment on a number of potential amendments to its 
Telemarketing Sales Rule. In relevant part, the FTC proposes to adopt a 
national do-not-call list that would allow consumers to prohibit calls 
from any telemarketer within the FTC's jurisdiction by placing their 
telephone number on a central registry to be maintained by, or on 
behalf of, the FTC. Because the FTC lacks jurisdiction over banks, 
common carriers, insurance companies, and certain other entities, these 
entities could continue to make telemarketing calls to individuals on 
the FTC's do-not-call list. We seek comment on whether the Commission 
should use its authority under the TCPA to extend any national do-not-
call requirements adopted by the FTC to those entities that fall 
outside the FTC's jurisdiction. If so, we seek comment on what role the 
Commission should play in the administration and enforcement of a 
national database.
    46. If the Commission should determine that a national do-not-call 
list is warranted, we seek comment on what actions the Commission could 
take to most efficiently, effectively, and consistently complement the 
FTC's proposal. The FTC indicates that its do-

[[Page 62677]]

not-call proposal is consistent with the Commission's regulations and 
should ``not be construed to permit any conduct that is precluded or 
limited by FCC regulations.'' If inconsistencies exist at the end of 
the rulemakings, would this create confusion regarding the 
applicability and enforcement of the do-not-call requirements to 
certain entities? For example, the FTC proposes to extend the do-not-
call requirement to telemarketing calls from ``for-profit entities'' 
that solicit charitable contributions. In so doing, the FTC indicates 
that its authority extends not only to the sale of goods or services 
but also to charitable solicitations by for-profit entities on behalf 
of nonprofit organizations. The Commission has concluded, however, that 
its regulations under the TCPA apply only to commercial calls. In 
addition, the TCPA specifically excludes ``tax exempt nonprofit 
organizations'' from its provisions. The Commission has concluded that 
this exemption for nonprofit organizations extends to telephone 
solicitations made by telemarketers on behalf of tax-exempt nonprofit 
organizations. We seek comment on whether this interpretation raises 
possible inconsistencies with the FTC's proposal. If so, we seek 
comment on how these inconsistencies could be reconciled in the 
administration of any national do-not-call database.
    47. The FTC's proposal also may allow some business and wireless 
telephone subscribers to register on the national database. The TCPA, 
however, only grants authority to the Commission to establish a 
national database for residential subscribers. We seek comment on the 
extent to which wireless subscribers may be considered ``residential'' 
for purposes of the TCPA. In addition, we seek comment on what, if any, 
conflict exists under the FTC's rules and proposals and the TCPA 
regarding inclusion of business consumers on the national do-not-call 
list. The FTC proposal also does not indicate whether consumers will be 
charged a fee for including their names on the national do-not-call 
database. We note that the TCPA prohibits the Commission from charging 
residential consumers to be included in the database. We seek comment 
on whether these and any other issues that commenters may identify 
raise potential areas of concern in coordinating the FTC's proposals 
with any Commission action. To the extent that any such inconsistencies 
exist, we seek suggestions as to how they could be reconciled to 
minimize the potential for confusion to consumers, telemarketers, and 
regulators in the administration and enforcement of any national do-
not-call database established under the combined authority of the FTC 
and the Commission.
    48. We also seek comment on whether the Commission should adopt any 
new rules or revise any of its existing rules to remain consistent with 
the proposals of the FTC. For example, the FTC proposes that consumers 
who have placed themselves on the national do-not-call registry ``could 
allow telemarketing calls from or on behalf of specific sellers, or on 
behalf of charitable organizations, by providing express verifiable 
authorization to the seller, or telemarketer making calls on behalf of 
a seller or charitable organization, that the consumer agrees to accept 
calls from that seller or telemarketer.'' The FTC also proposes 
adopting certain recordkeeping requirements that must be met before 
companies may avail themselves of the ``safe harbor'' protections for 
violating the do-not-call rules. In so doing, the FTC notes that the 
Commission's rules are silent as to any such requirements to reconcile 
names or numbers on a national registry because our rules relate only 
to company-specific lists. We seek comment on whether, if the 
Commission implements a national database with the FTC, the Commission 
should adopt recordkeeping or other rules that mirror those proposed by 
the FTC.
    49. Finally, we note that the FTC has sought comment on 
establishing a national do-not-call registry for a two-year trial 
period, after which it may review the costs and benefits of the central 
registry in order to determine whether to modify or terminate its 
operation. We seek comment on how this could affect any Commission 
decision to establish a joint database with the FTC, including whether 
the Commission should commit to a similar review at the same time. We 
also seek comment on what, if any, disruptions this may cause consumers 
if the FTC determines at that time to terminate the operation of its 
national do-not-call database. Finally, we note that the FTC has 
released a Privacy Act Notice specifying the measures it intends to 
take to ensure the privacy of consumers in compiling and maintaining 
the national registry. In its Notice, the FTC proposes to collect 
certain information including, at a minimum, telephone numbers of 
individuals who do not wish to receive telemarketing calls. To the 
extent necessary, the FTC may collect other information such as date(s) 
and time(s) that the individual's telephone number was placed on the 
registry; the individual's specific telemarketing preferences; and 
other identifying information that individuals may provide voluntarily 
(e.g., residential zip codes for record sorting purposes). The FTC 
expects to use automated methods to collect the information and to 
process requests from individuals seeking access to their records in 
the system. The FTC states that it intends to maintain these records in 
a secure electronic database operated by that agency and/or contractor 
personnel bound by the restrictions of the Privacy Act. We seek comment 
on whether the Commission should impose any requirements beyond those 
proposed by the FTC to ensure that consumer proprietary information 
would be protected in a national database.
    50. State Do-Not-Call Lists. As noted above, a number of states 
have adopted or are considering legislation to establish statewide do-
not-call lists. Such state lists vary widely in the methods used for 
collecting data, the fees charged, and the types of entities required 
to comply with their restrictions. Some state statutes provide for 
state-managed do-not-call lists, while others require telemarketers to 
use the Direct Marketing Association's Telephone Preference Service. In 
some states, residents can register for the do-not-call lists at no 
charge. In others, telephone subscribers must pay a fee. The state 
``do-not-call'' statutes provide for varying exceptions to the do-not-
call requirements. In the context of our review of the national do-not-
call database, we seek comment on how effective these state 
administered do-not-call lists have been in curbing unwanted telephone 
solicitations and whether a national database would correct any of the 
shortcomings of the state lists.
    51. If the Commission should establish a nationwide do-not-call 
list in conjunction with the FTC, we seek comment on the potential 
relationship of that database to state do-not-call laws. We seek 
comment on the potential role that states could play in administering 
and enforcing federal do-not-call requirements. We believe that many 
states have obtained valuable experience and insight into the 
administration of the do-not-call lists in their respective states. We 
therefore seek comment from the states, and any other interested 
parties, on the following options to incorporate state expertise in 
this process. We also invite additional suggestions on these or any 
alternative proposals.
    52. First, we seek comment on whether those states that have 
adopted

[[Page 62678]]

do-not-call laws should administer those laws to the extent that they 
apply to intrastate telemarketing calls, while the federal law would 
govern interstate telemarketing. Under such circumstances, we seek 
comment on whether the Commission should establish a regulatory scheme 
similar to that developed with the Commission's ``slamming'' rules that 
would allow states to ``opt-in'' and thereby co-administer and enforce 
the federal interstate do-not-call rules in their respective states. 
Consistent with the Commission's slamming regulations, states that 
``opt-in'' would be required to write and interpret their statutes and 
regulations for telemarketing calls in a manner that is consistent with 
the federal rules. States would be allowed to adopt more restrictive 
rules for intrastate telemarketing calls if such action is necessary 
based on its local experiences. Consumers residing in states that 
decided not to ``opt-in'' would be allowed to register with the 
administrator of the federal do-not-call database. These consumers 
would register and file do-not-call complaints regarding both unwanted 
intrastate and interstate telephone solicitations with the appropriate 
federal regulatory entity.
    53. We seek comment on whether this proposal is administratively 
feasible, including whether it is possible and/or necessary for 
regulators and consumers to distinguish intrastate from interstate 
telemarketing calls. We note that in comments filed in the FTC 
proceeding, the Attorneys General of all fifty states, Puerto Rico, and 
the Northern Mariana Islands, indicated that states have enforced their 
own do-not-call laws against telemarketers irrespective of whether such 
calls are intrastate or interstate in nature. The Attorneys General 
contend that states have historically enforced their consumer 
protection laws within, as well as across, state lines to prosecute 
out-of-state companies that have contacted their residents over the 
telephone. We seek comment on this interpretation of state authority to 
regulate telemarketing calls originating outside of the state.
    54. Second, we seek comment on how we could work together with 
states that have adopted do-not-call lists. The state Attorneys General 
argue that the states have the authority to enforce their own no-call 
laws against telemarketers across the country. Although many states 
have adopted laws that differ in some respects from the FTC's proposal, 
these differences may be reflective of the particularized circumstances 
of consumers and telemarketers in that state. In this context, the 
federal do-not-call database could act either as a default mechanism 
for those states that have not adopted do-not-call laws or coexist with 
the state do-not-call laws to provide consumers with additional 
safeguards.
    55. Under this approach, there would be no disruption to consumers 
in the administration and enforcement of the state regulations as 
applied to interstate calls. In this context, we seek comment on 
whether consumers in states that have adopted do-not-call laws should 
be restricted solely to registering on the state database or should 
also be allowed the option to register on any federal national do-not-
call database. If consumers are allowed the option to register on both 
databases, we seek comment on whether the federal database should 
permit states to submit do-not-call requests from their own database 
and to obtain from the federal database any requests from their own 
state. As noted above, states have adopted a variety of do-not-call 
laws, some of which may be less restrictive of telemarketing activity 
than the regulations proposed by the FTC. We therefore seek comment on 
whether the administration of both a state and federal do-not-call 
database would be feasible, including whether this approach may lead to 
consumer confusion or duplicative administrative costs. In this regard, 
we seek suggestions on how the federal and state regulatory entities 
should coordinate their efforts, including providing adequate 
information to consumers.
    56. Finally, we invite comment on additional proposals to reconcile 
the administration of any national do-not-call list with the various 
state lists. For example, the Commission has received inquiries 
regarding whether the Commission may also consider preempting the state 
do-not-call statutes, in whole or in part, under the theory that 
Congress has legislated comprehensively in this area, thus occupying 
the entire field of regulation and leaving no room for the states to 
supplement federal law. This issue has never been addressed on the 
Commission level, leading to uncertainty among states and 
telemarketers. In addition, the legislative history indicates that 
Congress believed the TCPA was necessary because states may lack 
jurisdiction to regulate interstate telemarketing calls. We seek 
comment on whether there are any advantages to a single national 
database over a collection of state do-not-call laws. Alternatively, we 
seek comment on whether the development of state do-not-call lists 
obviates the need for a national list. We also seek comment on whether 
preemption of state do-not-call lists would result in substantial 
confusion for those consumers that may have already registered in 
states that have adopted do-not-call lists. Similar to our discussion 
above, we seek comment in this context on whether the states could be 
allowed to ``opt-in'' and thereby co-administer and enforce the federal 
do-not-call rules in their respective states.

II. Procedural Issues

A. Ex Parte Presentations

    57. This is a non-restricted notice and comment rulemaking 
proceeding. Ex parte presentations are permitted, except during the 
Sunshine Agenda period, provided they are disclosed as provided in the 
Commission's rules.

B. Initial Regulatory Flexibility Analysis

    58. As required by the Regulatory Flexibility Act of 1980, as 
amended, (RFA), the Commission has prepared this Initial Regulatory 
Flexibility Analysis (IRFA) of the possible significant economic effect 
on small entities by the policies and rules proposed in this NPRM. 
Written public comments are requested on this IRFA. Comments must be 
identified as responses to the IRFA and must be filed by the deadline 
for comments on the NPRM provided below in the Comment Filing 
Procedures section. The Commission will send a copy of the NPRM, 
including this IRFA, to the Chief Counsel for Advocacy of the Small 
Business Administration. In addition, the NPRM and IRFA (or summaries 
thereof) will be published in the Federal Register.
1. Need for, and Objectives of, the Proposed Rules
    59. Since 1992, when the Commission adopted rules pursuant to the 
TCPA, telemarketing practices have changed significantly. New 
technologies have emerged that allow telemarketers to better target 
potential customers and make marketing using telephones and facsimile 
machines more cost-effective. At the same time, these new telemarketing 
techniques have heightened public concern about the effect on consumer 
privacy. The Commission has received numerous inquiries and complaints 
involving its rules on telemarketing and unsolicited fax 
advertisements. A growing number of states have passed or are 
considering legislation to establish statewide do-not-call lists, and 
the FTC has proposed establishing a national do-not-call registry. 
Congress provided in the TCPA that ``individuals'' privacy rights, 
public

[[Page 62679]]

safety interests, and commercial freedoms of speech and trade must be 
balanced in a way that protects the privacy of individuals and permits 
legitimate telemarketing practices. In this NPRM, we seek comment on 
whether the Commission's rules need to be revised in order to more 
effectively carry out Congress's directives in the TCPA. Specifically, 
we seek comment on whether to revise or clarify our rules governing 
unwanted telephone solicitations and the use of automatic telephone 
dialing systems, prerecorded or artificial voice messages and telephone 
facsimile machines. In addition, we seek comment on the effectiveness 
of company-specific do-not-call lists. We also seek comment on whether 
the Commission should revisit its determination not to adopt a national 
do-not-call list. In so doing, we seek comment on the options for 
possible Commission action in conjunction with the FTC's proposal to 
adopt a national do-not-call registry for those entities over which it 
has jurisdiction and the proliferation of state-adopted do-not-call 
lists. We seek comment on these issues, as well as any alternative 
means of protecting consumers' privacy while avoiding imposing 
unnecessary burdens on the telemarketing industry, consumers, and 
regulators.
2. Legal Basis
    60. The legal basis for any action that may be taken pursuant to 
this NPRM is contained in sections 1 thru 4, 227 and 303(r) of the 
Communications Act of 1934, as amended; 47 U.S.C. 151 thru 154 and 227; 
and 47 CFR 64.1200 and 1201 of the Commission's rules.
3. Description and Estimate of the Number of Small Entities to Which 
the Proposed Rules Will Apply
    61. The RFA directs agencies to provide a description of, and where 
feasible, an estimate of the number of small entities that will be 
affected by the proposed rules, if adopted. The RFA generally defines 
the term ``small entity'' as having the same meaning as the terms 
``small business,'' ``small organization,'' and ``small governmental 
jurisdiction.'' In addition, the term ``small business'' has the same 
meaning as the term ``small business concern'' under the Small Business 
Act. Under the Small Business Act, a ``small business concern'' is one 
that: (1) is independently owned and operated; (2) is not dominant in 
its field of operation; and (3) meets any additional criteria 
established by the Small Business Administration (SBA).
    62. The Commission's rules on telephone solicitation and the use of 
autodialers, artificial or prerecorded messages and telephone facsimile 
machines apply to a wide range of entities, including all 
telecommunications carriers and other entities that use the telephone 
or facsimile machine to advertise. Thus, we expect that the proposals 
in this proceeding could have a significant economic impact on a 
substantial number of small entities. In 1992, there were approximately 
4.44 million small business firms in the United States, according to 
SBA data. The SBA has determined that ``telemarketing bureaus'' with $6 
million or less in annual receipts qualify as small businesses. For 
1997, there were 1,727 firms in this category, total, which operated 
for the entire year. Of this total, 1,536 reported annual receipts of 
less than $5 million.
    63. Determining a precise number of small entities that would be 
subject to the requirements proposed in this NPRM is not readily 
feasible. Therefore, we invite comment about the number of small 
business entities that would be subject to the proposed rules in this 
proceeding. After evaluating the comments, the Commission will examine 
further the effect any rule changes might have on small entities, and 
will set forth our findings in the final Regulatory Flexibility 
Analysis.
4. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements
    64. We are seeking comment on whether to amend the Commission's 
TCPA rules and/or to revisit the option of establishing a national do-
not-call list. The proposed rules will apply, with certain exceptions, 
to all entities making telephone solicitations or using automatic 
telephone dialing systems, prerecorded or artificial voice messages or 
telephone facsimile machines to send unsolicited advertisements. If we 
retain the company-specific do-not-call approach, we seek comment on 
whether to require companies to provide a toll-free number and/or 
website for consumers to register their names on the do-not-call lists. 
We also seek comment on whether additional measures should be taken to 
ensure that consumers with disabilities can register their do-not-call 
requests. Any such measures, if adopted, may involve additional costs 
to businesses. If we find that establishing a national do-not-call list 
is warranted, we must determine the entity that will maintain the list 
and the procedures for administering the list. For small businesses 
whose call lists are not automated, scrubbing lists could be more 
labor-intensive and thus, more time-consuming and costly. However, we 
do not anticipate that such recordkeeping will require the use of 
professional skills, including legal and accounting expertise. In this 
NPRM, we seek information regarding the burdens on telemarketers to 
comply with a national do-not-call database, including the requirements 
to obtain a national list of telephone numbers and to incorporate those 
numbers into telemarketers' individual do-not-call lists. Entities, 
especially small businesses, are encouraged to quantify the costs and 
benefits of a national do-not-call list, as well as the costs and 
benefits of any possible new rules regarding certain telemarketing 
technologies and practices. Finally, the TCPA under section 227(c)(3) 
provides that should the Commission adopt a national do-not-call list, 
common carriers shall be required to inform subscribers of the option 
to register on a national do-not-call list. We seek input on this 
proposal and any other suggestions to ensure the public is well-
informed.
5. Steps Taken To Minimize Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered
    65. 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.
    66. This NPRM invites comment on a number of alternatives to modify 
the existing TCPA rules on telephone solicitation and the use of 
autodialers, artificial or prerecorded messages, and telephone 
facsimile machines. The Commission also will consider additional 
significant alternatives developed in the record. We seek comment on 
the effectiveness of company-specific do-not-call lists and whether the 
benefits of individual company lists continue to outweigh the costs to 
telemarketers. We also seek comment on whether any network technologies 
have been developed over the last decade that could serve as 
alternatives to do-not-call lists. We ask whether any such technologies 
are effective, universally available, and

[[Page 62680]]

affordable to consumers in allowing consumers to curb unwanted 
telephone solicitations. In addition, we seek comment on a number of 
proposals such as requiring a maximum setting on the number of 
abandoned calls, requiring telemarketers to transmit caller ID 
information or prohibiting them from blocking such information. We also 
ask whether revisiting the established business relationship exemption 
would interfere with ongoing business relationships, particularly for 
small businesses.
    67. We also seek comment on options for possible Commission action 
in conjunction with the FTC's proposal to establish a national do-not-
call registry. A national do-not-call list might provide consumers with 
a one step method to avoid unwanted sales calls and assist 
telemarketers in identifying those consumers who do not wish to be 
contacted. We seek information, however, about the potential costs of 
establishing and maintaining a national list and about the burdens on 
telemarketers of complying with a national do-not-call list. 
Specifically, we ask whether there should be any distinctions for small 
businesses that must comply with a national do-not-call registry. We 
also ask whether consumers listed on a national registry should be 
permitted to also provide express verifiable authorization to those 
businesses from whom they want to receive calls.
6. Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Rules
    68. The Telemarketing Consumer Fraud and Abuse Prevention Act 
(``Telemarketing Act''), 15 U.S.C. 6101 thru 6108, and the 
Telemarketing Sales Rule (TSR) adopted by the FTC also address certain 
telemarketing acts or practices. The TCPA and Commission rules 
currently do not duplicate, overlap or conflict with the Telemarketing 
Act or TSR; however, there are provisions in the FTC's rules that 
mirror the Commission's rules, such as the calling time restrictions. 
It is difficult to determine at this time whether any of the proposals 
contained in this NPRM might conflict with any other federal rules, 
given that the FTC has undertaken a rulemaking proceeding of its own. 
Therefore, we ask in the NPRM whether any inconsistencies at the end of 
the rulemakings would create confusion regarding the applicability and 
enforcement of the do-not-call requirements to certain entities. For 
instance, the FTC proposes to extend its do-not-call requirements to 
telemarketing calls from ``for-profit entities'' that solicit 
charitable contributions; the Commission has concluded that its 
regulations apply only to commercial calls. The FTC's proposal also 
appears to allow some business and wireless telephone subscribers to 
register on the national database, while the TCPA grants authority to 
the Commission to establish a national database only for residential 
subscribers. Therefore, the Commission invites comment in this NPRM on 
whether we could adopt any new rules or revise any of our existing 
rules to remain consistent with the FTC's proposals.

C. Filing of Comments and Reply Comments

    69. We invite comment on the issues and questions set forth above. 
Pursuant to Sec. Sec.  1.415 and 1.419 of the Commission's rules, 47 
CFR 1.415, 1.419, interested parties may file comments on or before 
November 22, 2002, and reply comments on or before December 9, 2002. 
Comments may be filed using the Commission's Electronic Comment Filing 
System (ECFS) or by filing paper copies. See Electronic Filing of 
Documents in Rulemaking Proceedings (63 FR 24121, May 1, 1998).
    70. Comments filed through the ECFS can be sent as an electronic 
file via the Internet to http://www.fcc.gov/e-file/ecfs.html. 
Generally, only one copy of an electronic submission must be filed. If 
multiple docket or rulemaking numbers appear in the caption of this 
proceeding, however, commenters must transmit one electronic copy of 
the comments to each docket or rulemaking number referenced in the 
caption. In completing the transmittal screen, commenters should 
include their full name, U.S. Postal Service mailing address, and the 
applicable docket or rulemaking number. Parties may also submit an 
electronic comment by Internet e-mail. To get filing instructions for 
e-mail comments, commenters should send an e-mail to [email protected], and 
should include the following words in the body of the message, ``get 
form.'' A sample form and directions will be sent in reply. Parties who 
choose to file by paper must file an original and four copies of each 
filing. If more than one docket or rulemaking number appear in the 
caption of this proceeding, commenters must submit two additional 
copies for 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 we 
continue to experience delays in receiving U.S. Postal Service mail). 
The Commission's contractor, Vistronix, Inc., 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 
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 mail, Express Mail, 
and Priority Mail should be addressed to 445 12th Street, SW., 
Washington, DC 20554. All filings must be addressed to the Commission's 
Secretary, Office of the Secretary, Federal Communications Commission. 
Parties also should send four (4) paper copies of their filings to 
Kelli Farmer, Federal Communications Commission, Room 4-C740, 445 12th 
Street, SW., Washington, DC 20554.
    71. Written comments by the public on the proposed and/or modified 
information collections are due on or before November 22, 2002. Written 
comments must be submitted by the Office of Management and Budget (OMB) 
on the proposed and/or modified information collections on or before 
December 9, 2002. In addition to filing comments with the Secretary, a 
copy of any comments on the information collection(s) contained herein 
should be submitted to Judy Boley, Federal Communications Commission, 
Room 1-C804, 445 12th Street, SW., Washington, DC 20554, or via the 
Internet to [email protected] and to Edward Springer, OMB Desk Officer, 
Room 10236 NEOB, 725 17th Street, NW., Washington, DC 20503 or via the 
Internet to [email protected].
    72. Accessible formats (computer diskettes, large print, audio 
recording and Braille) are available to persons with disabilities by 
contacting Brian Millin of the Consumer & Governmental Affairs Bureau, 
at (202) 418-7426, TTY (202) 418-7365, or at [email protected].

III. Ordering Clauses

    73. The Notice of Proposed Rulemaking is adopted.
    74. 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.

List of Subjects in 47 CFR Part 64

    Telephone.


[[Page 62681]]


Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 02-25569 Filed 10-7-02; 8:45 am]
BILLING CODE 6712-01-P