[Federal Register Volume 68, Number 64 (Thursday, April 3, 2003)]
[Proposed Rules]
[Pages 16250-16252]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-8077]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 64

[CG Docket No. 02-278, FCC 03-62]


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

AGENCY: Federal Communications Commission.

ACTION: Further notice of proposed rulemaking.

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SUMMARY: In this document, the Commission seeks comment on The Do-Not-
Call Implementation Act (Do-Not-Call Act), which requires the Federal 
Communications Commission (FCC or Commission) to issue final rules in 
the Telephone Consumer Protection Act (TCPA) proceeding within 180 
days, to maximize consistency with the Federal Trade Commission's (FTC) 
rules, and to issue reports to Congress within 45 days of the 
promulgation of final rules, and annually thereafter.

DATES: Comments are due May 5, 2003 and reply comments are due May 19, 
2003.

ADDRESSES: Federal Communications Commission, 445 12th Street, SW, Room 
TW-A325, Washington, DC 20554. See supplementary information for 
further filing instructions.

FOR FURTHER INFORMATION CONTACT: Erica H. McMahon or Richard D. Smith, 
Policy Division, Consumer & Governmental Affairs Bureau, (202) 418-
2512.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's 
Further Notice of Proposed Rulemaking (FNPRM) in CG Docket No. 02-278, 
FCC 03-62, released March 25, 2003. The full text of this document is 
available on the Commission's Electronic Comment Filing System at 
http://www.fcc.gov/e-file/ecfs.html, and for public inspection during 
regular business hours in the FCC Reference Center, Room CY-A257, 445 
12th Street, SW., Washington, DC 20554.

Synopsis of Further Notice of Proposed Rulemaking

    1. On March 11, 2003, the Do-Not-Call Act was signed into law 
requiring the Commission to issue a final rule in the above-captioned 
proceeding within 180 days of March 11, 2003, and to consult with the 
FTC to maximize consistency with the rule promulgated by the FTC in 
2002. The Do-Not-Call Act also requires the Commission to issue reports 
to Congress within 45 days after the promulgation of final rules in 
this proceeding, and annually thereafter. In this FNPRM, we seek 
comment on these requirements.
    2. On December 20, 1991, Congress enacted the Telephone Consumer 
Protection Act of 1991 (TCPA) in an effort to address a growing number 
of telephone marketing calls and certain telemarketing practices 
thought to be an invasion of consumer privacy and even a risk to public 
safety. The statute restricts the use of automatic telephone dialing 
systems, artificial and prerecorded messages, and telephone facsimile 
machines to send unsolicited advertisements. The TCPA specifically 
authorizes the Commission to ``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.'' In 1992, the Commission adopted rules implementing the 
TCPA but declined to create a national database of telephone 
subscribers who do not wish to receive calls from telemarketers. The 
Commission opted instead to implement an alternative scheme--one 
involving company-specific do-not-call lists. In 1995 and 1997, the 
Commission released orders (60 FR 42068, August 15, 1995; 62 FR 19686, 
April 23, 1997) addressing petitions for reconsideration of the TCPA 
Order (57 FR 48333, October 23, 1992).
    3. On September 18, 2002, the Commission released a Notice of 
Proposed Rulemaking (NPRM) and Memorandum Opinion and Order (67 FR 
62667, October 8, 2002) seeking comment on whether the Commission's 
rules need to be revised in order to carry out more effectively 
Congress's directives in the TCPA. Specifically, we sought 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. We also sought comment on the effectiveness of company-
specific do-not-call lists. In addition, we sought comment on whether 
to revisit the option of establishing a national do-not-call list and, 
if so, how such action might be taken in conjunction with the FTC's 
proposal to adopt a national do-not-call list and with various state 
do-not-call lists. In considering ways in which we might improve our 
TCPA rules, our goal is to enhance consumer privacy protections while 
avoiding imposing unnecessary burdens on the telemarketing industry, 
consumers, and regulators. Lastly, we sought comment on the effect 
proposed policies and rules would have on small business entities,

[[Page 16251]]

including inter alia those who engage in telemarketing activities and 
those who rely on telemarketing as a method to solicit new business.
    4. On December 18, 2002, the FTC released an order establishing a 
national do-not-call registry and making other changes to its 
Telemarketing Sales Rule (68 FR 4580, January 29, 2003). Congress 
approved funding for the FTC's do-not-call registry as part of the 2003 
omnibus budget. Furthermore, the FTC has announced that it will begin 
to take registrations for a do-not-call registry on July 1, 2003, and 
that the registry will go into effect on October 1, 2003.
    5. In the Do-Not-Call Act, Congress requires this Commission to 
issue final rules in the above-captioned proceeding by September 7, 
2003. The Do-Not-Call Act provides that the FCC shall consult and 
coordinate with the FTC to maximize consistency with the rule 
promulgated by the FTC. Congress also requires the Commission to 
transmit a report on regulatory coordination to the House Committee on 
Energy and Commerce and the Senate Committee on Commerce, Science, and 
Transportation. The Commission is required to provide:
    (1) An analysis of the telemarketing rules promulgated by both the 
Federal Trade Commission and the Federal Communications Commission;
    (2) An analysis of any inconsistencies between the rules 
promulgated by each Commission and the effect of any such 
inconsistencies on consumers, and persons paying for access to the 
registry; and
    (3) Proposals to remedy any such inconsistencies.

    The Do-Not-Call Act also requires the Commission to file an annual 
report to the House Committee on Energy and Commerce and the Senate 
Committee on Commerce, Science and Transportation, which includes:
    (1) An analysis of the effectiveness of the ``do-not-call'' 
registry as a national registry;
    (2) The number of consumers who have placed their telephone numbers 
on the registry;
    (3) The number of persons paying fees for access to the registry 
and the amount of such fees;
    (4) An analysis of the progress of coordinating the operation and 
enforcement of the ``do-not-call'' registry with similar registries 
established and maintained by the various States;
    (5) An analysis of the progress of coordinating the operation of 
the ``do-not-call'' registry with the enforcement activities of the 
Commission pursuant to the TCPA; and
    (6) A review of the enforcement proceedings by the Commission under 
the TCPA.
    6. As stated above, the Do-Not-Call Act requires the FCC, in the 
course of the above-captioned proceeding, to ``maximize consistency'' 
with the FTC's recent amendments to its Telemarketing Sales Rule. We 
seek comment on how the FCC can maximize consistency with the FTC's 
rules. We encourage commenters to review the rules promulgated by the 
FTC and to comment on how the FCC should consider amending its rules, 
given the new statutory directive. We seek comment on how the goals and 
principles identified in the Do-Not-Call Act should affect our 
implementation of the Act and how to harmonize the requirements of the 
Do-Not-Call Act with our statutory mandate in the TCPA. We also seek 
comment on how the FCC can best fulfill the reporting requirements 
contained in the statute. On December 20, 2002, the Consumer & 
Governmental Affairs Bureau issued a Public Notice (67 FR 78763, 
December 26, 2002) extending the reply comment period in the TCPA 
proceeding until January 31, 2003, to ensure that all interested 
parties had ample opportunity to comment on possible Commission action 
in light of the FTC's new rules. Parties are advised not to reiterate 
comments previously filed in this proceeding because any previously 
filed comments will be duly considered.

Procedural Issues

A. Ex Parte Presentations

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

B. Filing of Comments and Reply Comments

    8. 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 May 
5, 2003, and reply comments on or before May 19, 2003. 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).
    9. 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 appears 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.
    10. 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].

[[Page 16252]]

Ordering Clauses

    11. The Further Notice of Proposed Rulemaking is adopted.

List of Subjects in 47 CFR Part 64

    Telephone.

    Federal Communications Commission.
William F. Caton,
Deputy Secretary.
[FR Doc. 03-8077 Filed 4-2-03; 8:45 am]
BILLING CODE 6712-01-P