[Federal Register Volume 68, Number 147 (Thursday, July 31, 2003)]
[Rules and Regulations]
[Pages 45134-45144]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-19568]



[[Page 45133]]

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Part VI





Federal Trade Commission





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16 CFR Part 310



Telemarketing Sales Rule Fees; Final Rule

  Federal Register / Vol. 68, No. 147 / Thursday, July 31, 2003 / Rules 
and Regulations  

[[Page 45134]]


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FEDERAL TRADE COMMISSION

16 CFR Part 310


Telemarketing Sales Rule Fees

AGENCY: Federal Trade Commission.

ACTION: Final rule.

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SUMMARY: The Federal Trade Commission (the ``Commission'' or ``FTC'') 
is issuing this Final Rule to amend the FTC's Telemarketing Sales Rule 
(``TSR'') by adding a new Section 310.8 that would impose fees on 
entities accessing the National Do Not Call Registry.

EFFECTIVE DATE: Section 310.8 (``the Final Fee Rule'') will become 
effective September 1, 2003, the first day that entities engaged in 
telemarketing will be able to access the National Do Not Call Registry.

ADDRESSES: Requests for copies of this Final Fee Rule should be sent 
to: Public Reference Branch, Federal Trade Commission, Room 130, 600 
Pennsylvania Avenue, NW., Washington, DC 20580. The complete record of 
this proceeding is also available at that address, and on the Internet 
at: http://www.ftc.gov/bcp/rulemaking/tsr/tsrrulemaking/index.htm.

FOR FURTHER INFORMATION CONTACT: David M. Torok, (202) 326-3075, 
Division of Marketing Practices, Bureau of Consumer Protection, Federal 
Trade Commission, 600 Pennsylvania Avenue, NW., Washington, DC 20580.

SUPPLEMENTARY INFORMATION:

I. Background

    On January 30, 2002, the FTC published a Notice of Proposed 
Rulemaking to amend the FTC's TSR and to request public comment on the 
proposed changes. 67 FR 4492 (Jan. 30, 2002) (``the Rule NPRM''). Among 
other provisions, the Rule NPRM proposed to establish a National Do Not 
Call Registry, to be maintained by the FTC, that would permit consumers 
who prefer not to receive telemarketing calls to register on one 
centralized list. On May 29, 2002, the FTC published another Notice of 
Proposed Rulemaking to further amend the TSR by imposing user fees on 
sellers and telemarketers to access the proposed registry. 67 FR 37362 
(May 29, 2002) (``the User Fee NPRM''). In drafting the User Fee NPRM, 
the Commission was guided by the Independent Offices Appropriations Act 
of 1952, 31 U.S.C. 9701, and Office of Management and Budget Circular 
No. A-25. The Commission received 34 comments in response to the User 
Fee NPRM.
    The Commission issued final amendments to the TSR on December 18, 
2002. 68 FR 4580 (Jan. 29, 2003). Among the changes made to the TSR, 
the Commission adopted the proposal to establish a National Do Not Call 
Registry, permitting consumers to register, via either a toll-free 
telephone number or the Internet, their preference not to receive 
telemarketing calls. The Amended TSR requires telemarketers to refrain 
from calling consumers who have placed their numbers on the national 
registry, starting October 1, 2003, the date by which full compliance 
with the ``do-not-call'' registry provisions of the Amended TSR, 16 CFR 
310.4(b)(1)(iii)(B), is required. See 68 FR 16238, 16245 (April 3, 
2003). To comply with this requirement, telemarketers will be required 
to access the national registry at least once every three months to 
remove from their telemarketing lists the telephone numbers of those 
consumers who have placed their numbers on the registry. 16 CFR 
310.4(b)(3)(iv). When it promulgated the Amended TSR, the Commission 
reserved its decision on the issues raised in the User Fee NPRM, 
stating that it would seek further comment in a revised Notice of 
Proposed Rulemaking. See 68 FR 4580, 4640 n. 716.
    On February 20, 2003, the President signed into law the 
Consolidated Appropriations Resolution of 2003, Pub. L. 108-7 (2003) 
(``the Appropriations Act''), which appropriated funds for the 
operation of the FTC during fiscal year 2003. In the Appropriations 
Act, Congress also authorized the agency to collect fees sufficient to 
implement and enforce the ``do-not-call'' provisions of the Amended 
TSR. Congress further estimated the costs for fiscal year 2003 at 
$18,100,000. Id. at Division B, Title II. See also The Do-Not-Call 
Implementation Act, Pub. L. 108-10 (2003) (``the Implementation Act'') 
at sec. 2. Pursuant to the Appropriations Act and the Implementation 
Act, as well as the Telemarketing and Consumer Fraud and Abuse 
Prevention Act, 15 U.S.C. 6101-08 (``the Telemarketing Act''), the FTC 
issued a Revised Fee Notice of Proposed Rulemaking (``the Revised Fee 
NPRM''). 68 FR 16238 (April 3, 2003). The Commission received 35 
comments in response to the Revised Fee NPRM.\1\
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    \1\ A list of the commenters in this proceeding, and the 
acronyms used to identify each, is attached hereto as Appendix A. 
Comments submitted in response to the Revised Fee NPRM will be cited 
in this Notice as ``[Acronym of Commenter]-Revised Fee at [page 
number].'' Comments submitted in response to the User Fee NPRM will 
be cited as ``[Acronym of Commenter]-User Fee at [page number].''
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    On July 3, 2003, the Federal Communication Commission (``FCC'') 
issued its Report and Order in the Matter of Rules and Regulations 
Implementing the Telephone Consumer Protection Act of 1991 (``the FCC 
Rules'').\2\ Among numerous other provisions, the FCC Rules prohibit 
any ``person or entity'' from ``initiating any telephone solicitation'' 
to a ``residential telephone subscriber who has registered his or her 
telephone number on the national do-not-call registry of persons who do 
not wish to receive telephone solicitations that is maintained by the 
federal government.'' \3\
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    \2\ The FCC Rules may be found at: http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-03-153A1.pdf.
    \3\ 47 CFR 64.1200(c)(2), amended July 3, 2003.
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    Based on its review of the record in this proceeding, and on its 
law enforcement experience in this area, the Commission hereby 
promulgates this Final Rule establishing fees for entities accessing 
the National Do Not Call Registry.

II. Constitutionality

    Some commenters, principally ATA and DMA, contended that both the 
National Do Not Call Registry and its associated fees would violate 
telemarketers' First Amendment rights.\4\ The Commission was mindful of 
the First Amendment implications of the national registry while 
amending the TSR,\5\ and throughout this rulemaking has carefully 
considered the constitutionality of the proposed Fee Rule.\6\
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    \4\ See ATA-Revised Fee at 1-16; DMA-Revised Fee at 6-7. See 
also ICL-Revised Fee at 5-6 (asserting simply ``Given that the 
nondeceptive and nonmisleading telemarketing activity is protected 
commercial speech, the decision to charge some persons, corporate or 
individual, more than others with no relation to furtherance of 
residential privacy is unconstitutional.''); DB-Revised Fee; JJ-
Revised Fee; BP-Revised Fee; GS-Revised Fee; JS-Revised Fee; & SS-
Revised Fee at 1-2 (individuals voicing concerns about freedom of 
speech).
    \5\ See, e.g., 68 FR 4580, 4634-37 (January 29, 2003).
    \6\ To the extent that ATA and DMA challenge the 
constitutionality of the National Do Not Call Registry itself, and 
not the fee proposal, the rulemaking on the registry is closed and 
the parties are briefing the matter for the courts to decide.
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    Relying primarily on case law addressing speech entitled to full 
First Amendment protection, ATA contended the registry's fees are 
unconstitutional in part because by ``making purchase of the list a 
precondition for engaging in telemarketing, the Commission has 
structured the list as a prior restraint on protected speech.''\7\ The 
Commission

[[Page 45135]]

disagrees and believes that the registry fee provision is 
constitutional. To the extent the fee imposes a restraint on speech, it 
restrains only commercial speech. The Supreme Court has ``observed that 
commercial speech is such a sturdy brand of expression that traditional 
prior restraint doctrine may not apply to it.'' See Central Hudson Gas 
& Elec. v. Pub. Serv. Comm. of N.Y., 447 U.S. 557, 571 n.13 (1980) 
(quoting Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, 
425 U.S. 748, 771-72 n.24 (1976)). Moreover, the Final Fee Rule ensures 
that the fee is collected from the telemarketing industry through 
procedures that safeguard against unbridled discretion in the hands of 
a government official or agency.\8\ The registry fees are more akin to 
the registration fees or business licenses that are commonly imposed 
upon businesses before they can engage in commercial speech. A 
regulatory fee on speech is constitutionally permissible when it is 
related sufficiently to the costs of administering and enforcing that 
regulation.\9\
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    \7\ ATA-Revised Fee at 3-6. See also DMA-Revised Fee at 6 n.11 
(contending ``the Court took a dim view of permits to engage in 
constitutionally protected speech whose issuance depended on the 
payment of a license tax because it acted as a prior restraint on 
speech'').
    \8\ ATA and DMA also challenge the fee size and structure. See, 
e.g., ATA-Revised Fee at 10 (categorizing the registry's fee 
structure as ``irrationally differentiated''); DMA-Revised Fee at 1. 
Because Congress's guidance on the amount of the fees to be 
collected and the Commission's efforts to tailor the fee structure 
are best understood in context, these First Amendment concerns will 
be addressed throughout the remaining sections of this Statement.
    \9\ See, e.g., Coalition for Abolition of Marijuana Prohibition 
v. City of Atlanta, 219 F.3d 1301, 1324 n.16 (11th Cir. 2000); 
National Awareness Foundation v. Abrams, 50 F.3d 1159, 1164-1168 (2d 
Cir. 1995).
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III. Access to the National Do Not Call Registry

A. Entities That Are Allowed Access

    In Section 310.8(e) of the Revised Fee NPRM, the Commission 
proposed to allow access to the national registry by telemarketers, 
sellers, others engaged in or causing others to engage in telephone 
calls for commercial purposes, and service providers acting on behalf 
of such persons.\10\ The Commission stated that such access to the 
National Do Not Call Registry may be necessary to effectuate more fully 
the purpose of the ``do-not-call'' regulations; namely, to enable 
consumers to stop unwanted telemarketing calls. Such access would allow 
those entities that are exempt from the FTC's jurisdiction, but that 
want to scrub their calling lists as a matter of customer service, to 
obtain the information necessary to do so. It also would allow sellers 
to obtain access, as well as other entities that have traditionally 
provided service to the telemarketing industry. The Commission further 
stated that the information in the national registry should be used for 
no other purpose than to stop unwanted telemarketing calls. Thus, the 
Commission proposed that, prior to gaining access to the national 
registry, a person would be required to certify, under penalty of law, 
that the person is accessing the registry solely to comply with the 
provisions of this Rule or to otherwise prevent calls to telephone 
numbers on the registry.
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    \10\ Proposed Section 310.8(e) also permitted access to the 
national registry by any government agency that has the authority to 
enforce a federal or state ``do-not-call'' statute or regulation. 
Such agencies will access information in the national registry 
through Consumer Sentinel, a dedicated, secure website available 
only to law enforcement agencies. The Commission is expanding this 
provision of the Final Fee Rule to allow access to the national 
registry to any ``government agency that has law enforcement 
authority.'' This revised language more effectively mirrors the list 
of law enforcement agencies that currently have access to Consumer 
Sentinel, and that therefore will have access to the national 
registry data.
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    A number of commenters supported the Commission's proposal to allow 
for such broad access to the national registry.\11\ Others suggested 
that nonprofit organizations soliciting donations also should be 
allowed to access the national registry. For example, DMA noted that 
such access would ``effectuate the purposes of the do-not-call 
regulations'' by allowing such entities to voluntarily scrub their 
calling lists.\12\ The Commission agrees that nonprofit organizations 
that wish to obtain access to the national registry to prevent calling 
consumers whose telephone numbers are on the registry, even though they 
are not required by rule to do so, should be allowed the opportunity. 
As a result, the Commission is amending Section 310.8(e) by eliminating 
the phrase ``commercial purposes'' from this provision, and instead 
allowing access to the national registry to entities ``engaged in or 
causing others to engage in telephone calls to consumers.'' As 
previously stated, each entity will be required to certify, under 
penalty of law, that it is accessing the registry solely to comply with 
the provisions of this Rule or to otherwise prevent calls to telephone 
numbers on the registry.
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    \11\ See ARDA-Revised Fee at 2; BOA-Revised Fee at 1; Household-
Revised Fee at 2; NCL-Revised Fee at 1 (``Entities that are exempt 
from the FTC's jurisdiction should not be prevented from voluntarily 
accessing the registry to avoid calling consumers who do not wish to 
receive telemarketing solicitations.'').
    \12\ DMA-Revised Fee at 15-16. See also NCL-Revised Fee at 1.
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B. Entities Required To Pay the Fee

    The Revised Fee NPRM proposed requiring each seller to pay, on an 
annual basis, the appropriate fee for accessing the National Do Not 
Call Registry prior to initiating, or causing a telemarketer to 
initiate, an outbound telephone call. After paying the appropriate fee 
each annual period, the seller would be provided with a unique account 
number that it could use to gain direct access to the national registry 
at any time during its annual period.\13\ In addition, the seller could 
provide its account number to any telemarketer or service provider with 
which it does business. That unique account number would permit the 
telemarketer or service provider to gain access to the information to 
which the seller has subscribed. The Commission noted that under this 
revised fee structure, each seller would be charged only one time 
annually for access to the information included in the national 
registry, and would be allowed to transfer its ability to access the 
national registry to whatever telemarketers or service providers it 
wished to employ on its behalf.
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    \13\ As set forth in Section 310.8(d) of the Revised Fee NPRM 
and the Final Fee Rule, the ``annual period'' is defined as the 
twelve months following the first day of the month in which the 
person paid the fee. For example, a seller who pays its annual fee 
on September 15, 2003, has an ``annual period'' that runs from 
September 1, 2003 through August 31, 2004.
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    A number of commenters noted that the proposed rule would require 
certain sellers to pay for access to the national registry, even if 
they do not have to gain such access under the Amended TSR.\14\ 
Specifically, under the Amended TSR, a seller that calls only persons 
with whom the seller has an established business relationship, or from 
whom the seller has obtained the express written agreement to call, is 
not required to access the national registry prior to engaging in those 
calls.\15\ Nonetheless, as proposed, the Revised Fee NPRM would require 
such sellers to pay the annual fee prior to making such calls. ATA 
described this aspect of the proposed fees as a ``particularly 
invidious prior restraint'' and thus a violation of the First Amendment 
because telemarketers are forced to ``pay a fee even where they have no 
use for information in the registry.''\16\ As VISA noted, the FTC 
should ``clarify in the final rule that if a seller is not required to 
access the registry pursuant to an exemption or otherwise, the seller

[[Page 45136]]

should not be required to pay a user fee provided the seller does not 
access the registry for other reasons.''\17\
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    \14\ See ABA-Revised Fee at 1; ATA-Revised Fee at 5-6; VISA-
Revised Fee at 1-2.
    \15\ See 16 CFR 310.4(b)(1)(iii)(B)(i) and (ii).
    \16\ ATA-Revised Fee at 5-6.
    \17\ VISA-Revised Fee at 1-2.
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    The Commission agrees that sellers engaged solely in calls to 
persons with whom they have an established business relationship or 
from whom they have obtained express written agreement to call, and who 
do not otherwise want to access the national registry, should not have 
to pay an annual fee. As a result, the Commission is amending Section 
310.8(a) to make clear that sellers do not have to pay for access to 
the National Do Not Call Registry if the seller initiates, or causes a 
telemarketer to initiate, calls solely to persons pursuant to the 
exemptions set forth in Amended TSR Sec. Sec.  310.4(b)(1)(iii)(B)(i) 
or (ii), and the seller does not access the National Do Not Call 
Registry for any other purpose. A similar change is being made to 
Section 310.8(b), regarding telemarketer access to the national 
registry.
    Some commenters requested clarification that sellers exempt from 
the Amended TSR are not required to access the National Do Not Call 
Registry and pay the annual fee.\18\ With the adoption of the FCC 
Rules, the list of sellers exempt from the requirements of the National 
Do Not Call Registry under federal law is considerably narrowed. Any 
such exempt seller, however, is not required to access the national 
registry or pay the annual fee. For example, solicitations to induce 
charitable contributions via outbound telephone calls are not covered 
by the National Do Not Call Registry requirements of the TSR.\19\ As a 
result, sellers involved only in such solicitations would not be 
required to pay a fee or access the national registry. In addition, 
entities engaged solely in conducting surveys are not seeking to induce 
the purchase of goods or services and therefore are not engaged in 
``telemarketing'' nor subject to the TSR.\20\ Similarly, political fund 
raising is not ``telemarketing'' and is not covered.\21\ Of course, any 
of those entities may access the national registry if they voluntarily 
wish to prevent calling telephone numbers that are on the registry, or 
if they are required by other laws or regulations to gain such access.
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    \18\ See FSR-Revised Fee at 1-2; VISA-Revised Fee at 1-2.
    \19\ 16 CFR 310.6(a). See also 47 CFR 64.1200(f)(9)(iii), 
amended July 3, 2003 (FCC Rules defining a ``telephone 
solicitation'' as not including a call or message ``by or on behalf 
of a tax-exempt nonprofit organization.''
    \20\ The Amended TSR defines ``telemarketing'' as a ``plan, 
program, or campaign which is conducted to induce the purchase of 
goods or services or a charitable contribution, by use of one or 
more telephones, and which involves more than one interstate 
telephone call.'' 16 CFR 310.2(cc).
    \21\ Sellers that engage solely in intrastate telemarketing, or 
that engage in businesses outside of the jurisdictional limitations 
of the FTC, are not required by the Amended TSR to access the 
National Do Not Call Registry or pay for such access. However, such 
companies are required by the FCC Rules to access the national 
registry and pay for such access. See FCC Rules at ] 27.
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    DMA stated that nonprofit organizations voluntarily accessing the 
national registry to avoid calling potential donors who do not want to 
receive telemarketing calls should not be charged for such access.\22\ 
The Commission agrees that such charges are unwarranted. Section 
310.8(c) is amended to provide that there shall be no charge to any 
person engaging in or causing others to engage in outbound telephone 
calls to consumers and who is accessing the national registry without 
being required under this Rule, the FCC Rules, or any other federal 
law.\23\ Such persons must provide all information required of other 
entities accessing the registry, must certify, under penalty of law, 
that they are accessing the registry solely to prevent telephone calls 
to telephone numbers on the registry, and must further certify that 
they are accessing the registry without being required under this Rule, 
the FCC Rules, or any other federal law. Affording these persons such 
access to the registry will enable them to abide by consumers' choices 
not to be called by commercial telemarketers. At the same time, the 
certification requirement--under penalty of law--will enable the 
Commission to take appropriate steps against those who misuse the 
registry.
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    \22\ See DMA-Revised Fee at 15-16.
    \23\ Such persons consist solely of entities engaged in outbound 
telephone calls to consumers to induce charitable contributions, for 
political fund raising, or to conduct surveys.
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    The Commission also proposed in the Revised Fee NPRM that 
telemarketers who are not also sellers--i.e., entities that engage in 
telemarketing only on behalf of others--would not have to pay a 
separate fee for their access to the national registry. Similarly, list 
brokers or other service providers who develop and/or scrub the calling 
lists for their seller-clients would not have to pay for their 
individual access to the national registry. Instead, such telemarketers 
and service providers would be required to ensure that their seller-
clients have paid for access to the National Do Not Call Registry prior 
to initiating outbound telephone calls, or providing services, on their 
behalf. Telemarketers and service providers would gain this assurance 
by obtaining and using the seller's unique account number to access the 
national registry.
    DMA opposed this ``seller pays'' model for the National Do Not Call 
Registry.\24\ Instead, DMA suggested that the FTC ``should leave the 
issue of who pays for the List to the contractual provisions between 
service bureaus and sellers.'' \25\ IMC stated that a ``more workable 
proposal would be to require each calling entity, third party or seller 
using in house callers to purchase and implement the list. Thus, IMC 
could purchase access to the registry once and call on behalf of all 
its clients.'' \26\ The Commission does not believe such a system would 
equitably spread the fees for the national registry among all entities 
that engage in telemarketing. As the Commission explained in the 
Revised Fee NPRM, sellers are the ultimate beneficiaries of 
telemarketing campaigns, and covered sellers must gain access to the 
information in the national registry to remain in compliance with the 
``do-not-call'' provisions of the Amended TSR. As a result, all such 
sellers should pay an appropriate fee for that access. Moreover, by 
charging only telemarketers for access to the national registry, and 
charging them only once for their access on behalf of multiple clients, 
IMC's proposed fee structure would inequitably benefit those sellers 
that employ a telemarketer with multiple clients. This inequitable 
advantage is created because those sellers would bear less of the cost 
of access to the same information than sellers that engage in their own 
telemarketing without hiring a telemarketer. Thus, the Commission will 
require sellers, and not their telemarketers or service providers, to 
pay for access to the national registry.\27\
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    \24\ See DMA-Revised Fee at 7-8.
    \25\ Id.
    \26\ IMC-Revised Fee at 5.
    \27\ The FCC Rules require all entities ``making telephone 
solicitations (or on whose behalf telephone solicitations are 
made)'' to ``purchase[] access to the relevant do-not-call data from 
the administrator of the national database.'' 47 CFR 
64.1200(c)(2)(i)(E), amended July 3, 2003. The Commission will deem 
all telemarketers or service providers who are not also sellers to 
have ``purchased access'' to the national registry by providing the 
unique account number of the seller on whose behalf the telemarketer 
or service provider is gaining access.
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    The FCC Rules recognize that allowing telemarketers and others to 
share the information obtained from the national registry ``would 
threaten the financial support for maintaining the database.''\28\ In 
fact, the FCC Rules specifically prohibit any entity that accesses the 
national registry from ``participat[ing] in any arrangement to share 
the cost of accessing the national

[[Page 45137]]

database, including any arrangement with telemarketers who may not 
divide the costs to access the national database among various client 
sellers.''\29\ The Commission agrees with the FCC, and believes such a 
prohibition is appropriate to include in the Final Fee Rule as well. As 
a result, the Commission is including similar prohibitory language in 
Section 310.8(c).\30\
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    \28\ FCC Rules at ] 32, n.129.
    \29\ 47 CFR 64.1200(c)(2)(i)(E), amended July 3, 2003.
    \30\ Inclusion of this prohibition in the Fee Rule also will 
``maximize consistency'' between the FTC and FCC Rules. See Do Not 
Call Implementation Act, Sec.  3.
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    The Revised Fee NPRM did not permit any entity, other than a 
seller, to purchase the list of numbers in the national registry. A 
number of commenters noted that telemarketers calling on behalf of 
exempt entities would be in the ``untenable position'' of being 
required to comply with the ``do-not-call'' provisions of the Amended 
TSR, but not having the ability to access the national registry without 
their exempt seller-clients having paid for access.\31\ To address this 
potential problem, some commenters suggested allowing telemarketers 
direct access to the national registry.\32\ Convergys, a large 
telemarketer commenter, described a number of other situations when 
telemarketers may want to subscribe to the national registry although 
their seller-client is not required to do so, or has already purchased 
the list. For example, the telemarketer may want to scrub the calling 
list of a client calling customers with an existing business 
relationship, or ``to help guard against errors or omissions'' in the 
sellers' lists and to re-verify the accuracy of those lists.\33\
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    \31\ See ABA-Revised Fee at 1-2; BOA-Revised Fee at 1-2; 
Convergys-Revised Fee at 3-5; FSR-Revised Fee at 1-2.
    \32\ See BOA-Revised Fee at 1-2; Convergys-Revised Fee at 5.
    \33\ See Convergys-Revised Fee at 2-5.
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    For the reasons set forth in these comments, the Commission agrees 
that allowing independent access to the national registry by 
telemarketers or other service providers is appropriate. As a result, 
telemarketers or service providers will be allowed to gain access to 
the national registry on their own behalf, without being limited solely 
to the access allowed for their seller-clients. To maintain the 
fairness of the fee structure, however, telemarketers and service 
providers will be required to pay the appropriate fee for such 
independent access. Moreover, covered sellers still will be required to 
pay the fee prior to engaging in, or causing a telemarketer to engage 
in, outbound telephone calls for which access to the ``do-not-call'' 
registry is required by the Amended TSR. This ``covered seller pays'' 
requirement remains in place regardless of whether the telemarketer or 
service provider employed by the seller independently and voluntarily 
pays for access to the national registry. In addition, telemarketers 
and service providers paying for such independent access must certify 
that they are accessing the national registry solely to comply with the 
provisions of the Amended TSR, or otherwise to prevent telephone calls 
to telephone numbers on the national registry. Finally, such 
telemarketers or service providers are not permitted to use the 
information they obtain from the national registry on behalf of any 
entity, covered seller or exempt, unless that entity has paid the 
appropriate fee for access to the information or, for exempt sellers, 
has submitted the appropriate certification to gain access to the 
national registry.

C. Other Registry Access Issues

    Commenters raised three other issues regarding access to the 
national registry. First, commenters suggested allowing sellers and 
telemarketers to allocate responsibility among themselves for obtaining 
access to the national registry. The Revised Fee NPRM anticipated that 
all covered sellers would initially access the national registry on 
their own behalf, pay the appropriate fee and acquire an account 
number, which they could then provide to any telemarketer or service 
provider that they wish to hire. Commenters noted, however, that 
telemarketers and service bureaus frequently access state ``do-not-
call'' lists on behalf of their seller-clients.\34\ These commenters 
maintained that sellers should be permitted to access the national 
registry either directly, or permit a third party, such as a 
telemarketer or list broker, to enroll and access on the seller's 
behalf. ``In either event, a unique account number could be assigned 
for each seller, thereby allowing it the flexibility to change 
telemarketers/service providers, or use multiple telemarketers, once an 
access fee has been paid on its behalf.''\35\
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    \34\ See ERA-Revised Fee at 3-5; MPA-Revised Fee at 4-5; West-
Revised Fee at 1-2.
    \35\ ERA-Revised Fee at 4.
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    The Commission is persuaded that such flexible access is 
appropriate. Sellers may contract with telemarketers or other service 
providers to access the national registry on their behalf to satisfy 
the rule's requirements. In this way, sellers and their agents can 
allocate the responsibility for accessing the registry, although the 
seller remains ultimately liable for calls made on its behalf, and 
telemarketers remain liable for ensuring that their covered sellers 
have paid the appropriate fee. A unique account number still will be 
provided in the seller's name, for use by the seller throughout its 
annual period. As a result, Sec. Sec.  310.8(a), (b), and (d) are 
amended to allow sellers to pay the annual fee ``either directly or 
through another person.''
    The second issue raised by commenters regarding access to the 
national registry concerns the frequency of that access. Convergys 
stated that the fee rule should require telemarketers to access the 
data quarterly, regardless of the number of new clients they might 
acquire during that period. Telemarketers could then update their 
access and their registration information (with identities of new 
sellers) on a quarterly basis.\36\ Similarly, DMA stated that it is 
inefficient to require a service bureau to access the registry 
separately in the event it signed up a new client, even though it has a 
current version of the telephone numbers in the registry.\37\ Convergys 
also noted that current telemarketer systems are designed to allow 
telemarketers to access data directly and use it for more than one 
client. According to Convergys, limiting access to varying levels paid 
for by various clients would require significant modifications, burdens 
and costs.\38\
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    \36\ Convergys-Revised Fee at 6-8.
    \37\ DMA-Revised Fee at 8.
    \38\ Convergys-Revised Fee at 6.
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    The Commission never proposed requiring telemarketers or service 
bureaus to access the national registry or download data separately for 
each client. There are two requirements in effect that mandate the 
frequency of access to the national registry. First, Sec.  
310.4(b)(3)(iv) of the Amended TSR requires sellers and telemarketers 
to employ a version of the national registry obtained from the 
Commission no more than three months prior to the date any call is 
made. Second, Sec.  310.8(a) of the revised fee rule requires sellers 
to pay the annual fee prior to initiating, or causing a telemarketer to 
initiate, outbound telephone calls to persons whose numbers are on the 
registry. As a result, a telemarketer need only access the national 
registry once every three months, assuming it can scrub all of its 
calling lists by using that frequency of access.\39\ It can call on 
behalf of all of

[[Page 45138]]

its clients during that period, scrubbing from all of its calling lists 
those numbers that were included in the national registry at the time 
the telemarketer accessed the registry. If the seller-client agrees to 
allow the telemarketer to use the information already in the 
telemarketer's files from a prior download from the national registry 
within the previous three months, there is no rule violation for the 
telemarketer to do so. In other words, telemarketers and service 
providers acting on behalf of sellers may use one download from the 
national registry on behalf of multiple clients, as long as the fee for 
each of the seller-clients is paid.
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    \39\ The Commission has developed the ``do not call'' rules to 
allow sellers and telemarketers to determine when and how frequently 
they need to access the national registry to remain in compliance. 
Unlike many state systems, the national registry is continuously 
updated as consumers register. As a result, telemarketers obtain the 
most up-to-date list of telephone numbers each time they access the 
registry. This allows consumers to see a decrease in telemarketing 
calls from the first day they register, rather than having to wait 
for their numbers to be published in a quarterly list. This caused 
some concern for one commenter, West, that stated: ``Without a 
defined update schedule, the potential exists for numbers to be 
missed in the three-month window. It takes approximately twenty to 
twenty-four hours to update the West system with a do-not-call 
registry consisting of one million records because the upload 
happens on a real time basis. Given this, there is the potential for 
a number that is added one day after West downloads the do-not-call 
registry to be missed in the three month window. This would require 
West to actually download the list more than quarterly to avoid this 
potential problem.'' West-Revised Fee at 2. It is up to the 
individual seller or telemarketer to determine how frequently it 
must access the national registry to remain in compliance with the 
requirement that it use a version of the registry obtained from the 
Commission not more than three months prior to the date any call is 
made.
---------------------------------------------------------------------------

    The third access issue raised by commenters is an objection to the 
requirement that telemarketers and list brokers must identify their 
clients when accessing the national registry. According to DMA, these 
``contractual relationships are proprietary information and bear no 
relationship to consumer privacy.'' \40\ Convergys stated: ``For any 
business, customer identity is inherently sensitive, proprietary data 
and there is no basis in the record for requiring telemarketers to 
disclose it routinely and in the absence of substantial complaints or 
other evidence to suggest there have been violations.'' \41\ The 
Commission understands the likely proprietary nature of these business 
relationships, and notes that, to the extent, if any, such information 
constitutes trade secrets or other confidential or privileged 
commercial or financial information, it would not be subject to 
mandatory public disclosure by the Commission.\42\ Nevertheless, this 
information is critical for effective law enforcement of the ``do not 
call'' registry provisions of the Amended TSR, as well as for effective 
collection of the required fees. Typically, consumers reporting ``do-
not-call'' complaints will have only the name of the seller provided to 
the consumer during the call. As part of the investigation of such 
complaints, law enforcement may seek to determine whether the seller 
made that call on its own behalf, or used the services of a 
telemarketer. Information provided by sellers and telemarketers to gain 
access to the national registry is highly relevant to law enforcement. 
Querying the registry is faster, less expensive, and a potentially more 
reliable method of obtaining that information than traditional 
discovery tools, which also likely would eventually result in the 
disclosure of the same proprietary information. Equally important, to 
ensure that all sellers pay their appropriate share of the registry 
fees, it is critical to know the identity of each seller that pays the 
fee, and on whose behalf each telemarketer or service provider is 
accessing the national registry. Thus, the Commission will continue to 
require, in Sec.  310.8(e), that if a person is accessing the national 
registry on behalf of other sellers, that person must identify each of 
the other sellers.
---------------------------------------------------------------------------

    \40\ DMA-Revised Fee at 7-8.
    \41\ Convergys-Revised Fee at 5-6.
    \42\ See Freedom of Information Act Exemption 4, 5 U.S.C. 
552(b)(4); FTC Act Sec.  6(f), 15 U.S.C. 46(f).
---------------------------------------------------------------------------

D. Seller and Telemarketer Liability

    In the Revised Fee NPRM, the Commission proposed, in Section 
310.8(a) of the Rule, to make sellers directly liable for initiating, 
or causing a telemarketer to initiate, an outbound telephone call 
without first paying the appropriate fee for access to the national 
registry. The Commission also proposed, in Section 310.8(b), to make 
telemarketers directly liable for initiating an outbound telephone call 
on behalf of a seller without first ensuring that their seller-clients 
have paid for up-to-date access to the National Do Not Call Registry. 
The Commission proposed imposing this liability under the authority of 
the Appropriations Act and the Implementation Act, in addition to the 
Telemarketing Act, which provides the authority for the other portions 
of the Amended TSR.
    This proposed liability engendered a wide range of comment. For 
example, NCL stated: ``The FTC's proposal to hold sellers and any 
entities acting on their behalf directly liable for compliance with the 
fee requirements is absolutely crucial to prevent abuses in this 
regard.'' \43\ On the other hand, IMC maintained that liability should 
not exist unless a seller or telemarketer calls a consumer who had 
placed their number on the registry. According to IMC, liability for 
simply failing to purchase the list is unrelated to any consumer 
privacy interest and is unconstitutional.\44\
---------------------------------------------------------------------------

    \43\ NCL-Revised Fee at 1-2.
    \44\ IMC-Revised Fee at 5-6.
---------------------------------------------------------------------------

    As the Commission stated in the Revised Fee NPRM, direct liability 
on sellers and telemarketers is necessary to effectuate fairly the 
mandate of the Appropriations Act and the Implementation Act, which 
authorize the Commission to collect fees sufficient to cover the costs 
of implementing and enforcing the ``do-not-call'' provisions of the 
Amended TSR. Without such direct liability, the Commission remains 
concerned that not all entities that obtain information from the 
national registry will pay their fair share of the fees for that 
information, resulting in increased fees for those entities that do 
pay. The Commission continues to believe that the most effective way to 
ensure that all covered sellers pay their fair share of the registry 
fees is to impose direct liability upon them if they initiate, or cause 
a telemarketer to initiate, a call to a consumer without first paying 
the appropriate annual fee.
    As for telemarketer liability, a number of commenters suggested 
that ``where a service bureau has reasonably relied on evidence that 
its seller clients have paid for access, the service bureau should not 
be held liable for the seller's lack of compliance.'' \45\ The 
Commission agrees that telemarketers can rely on the registry for proof 
of payment as long as that reliance is reasonable given the totality of 
the circumstances. If a telemarketer or list broker accesses the 
national registry on behalf of a seller-client and presents that 
seller-client's unique account number, the telemarketer will be able to 
determine whether the seller's account is paid up to date, and the 
extent of access allowed by that payment. The telemarketer or service 
provider may rely on that information as proof of the seller's payment.
---------------------------------------------------------------------------

    \45\ DMA-Revised Fee at 15. See also IMC-Revised Fee at 6 
(suggesting the Final Fee Rule should ``allow a telemarketer to 
legally rely on a seller providing a working access number as 
conclusive proof that the seller has properly purchased access to 
the registry''); ARDA-Revised Fee at 3.
---------------------------------------------------------------------------

    Thus, Sections 310.8(a) and (b) continue to impose direct liability 
on sellers and telemarketers. The failure of a covered seller to pay 
the appropriate fee prior to initiating or causing another entity to 
initiate an outbound telephone call and the failure of a telemarketer 
to ensure that a covered seller has paid the appropriate fee prior to 
initiating an

[[Page 45139]]

outbound telephone call on its behalf are violations of the Amended 
TSR, and subject the seller and telemarketer to all remedies available 
for such violations.

E. Corporate Divisions, Subsidiaries, and Affiliates

    In the Revised Fee NPRM, the Commission proposed to treat each 
separate division, subsidiary, or affiliate of a corporation as a 
separate seller for purposes of Section 310.8. The Commission rejected 
comments suggesting that separate subsidiaries, divisions, or 
affiliates of the same corporation be treated as a single seller, 
stating that such treatment could greatly diminish the number of 
entities that will pay for access to the national registry, provide an 
unjust advantage to larger, multi-divisional corporations, and 
potentially increase the fees required to be paid by smaller, less 
complex corporate entities.
    NCL agreed with the Commission's proposal, stating that allowing 
separate subsidiaries, divisions, and affiliates ``to be considered as 
one seller, even though they would likely be conducting telemarketing 
campaigns for quite different products or services, would create an 
inequitable situation for smaller companies and threaten the financial 
viability of the registry.''\46\ On the other hand, this proposal was 
significantly criticized by industry commenters.\47\ They noted that 
companies organize into affiliated entities for tax, regulatory and 
historical reasons, often beyond their control.\48\ For example, SBC 
noted that due to statutory and regulatory requirements, it would be 
required to pay over 44 separate annual fees, even though the services 
provided by its separate subsidiaries and affiliates are similar and 
consumers have a reasonable expectation that they are dealing with one 
company.\49\ West stated that the proposal would cause it problems, 
since telemarketers such as itself would need to understand the 
corporate divisional structure of their seller-clients, which is not 
always clear.\50\ In addition, a number of commenters noted that this 
proposal appeared contrary to the Commission's assertion, stated in the 
Revised Fee NPRM, that the agency did not want to charge the same 
company multiple times for access to the national registry.\51\
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    \46\ NCL-Revised Fee at 2.
    \47\ See, e.g., ARDA-Revised Fee at 4; BOA-Revised Fee at 2; 
DMA-Revised Fee at 11-12; ERA-Revised Fee at 5-6; Household-Revised 
Fee at 2; IMC-Revised Fee at 5; MPA-Revised Fee at 3-4; SBC-Revised 
Fee at 2-4; Verizon-Revised Fee at 1-4; VISA-Revised Fee at 2.
    \48\ See BOA-Revised Fee at 2; SBC Revised Fee at 2-4; VISA-
Revised Fee at 2.
    \49\ SBC-Revised Fee at 2. See also Verizon-Revised Fee at 1-4 
(Verizon includes roughly two dozen separate corporations that 
engage in telemarketing).
    \50\ West-Revised Fee at 3.
    \51\ See, e.g., MPA-Revised Fee at 3-4; SBC-Revised Fee at 2-4.
---------------------------------------------------------------------------

    Many commenters suggested, as an alternative, that the Commission 
should use the ``consumer expectation'' factors set forth in the 
Amended TSR Statement of Basis and Purpose that apply to the 
established business relationship exemption to determine whether 
separate divisions, subsidiaries, or affiliates must pay the annual 
fee; namely, would consumers reasonably perceive the entity as a single 
seller based on the nature and type of goods or services sold and the 
identity of the division, subsidiary or affiliate.\52\ On the other 
hand, another commenter noted that such factors do not provide 
sufficient notice as to whether any particular division would be 
required to separately purchase access to the national registry, and 
that the final rule must provide ``a more definitive definition of the 
circumstances that would subject multiple divisions to separate fee 
obligations.''\53\
---------------------------------------------------------------------------

    \52\ ARDA-Revised Fee at 4; ERA-Revised Fee at 5-6; MPA-Revised 
Fee at 3-4; SBC-Revised Fee at 2-4.
    \53\ BOA-Revised Fee at 2.
---------------------------------------------------------------------------

    The Commission agrees that, for purposes of assessing a fee, the 
test to determine who must pay must be more specific and clear cut than 
the ``consumer expectation'' test established for the established 
business relationship exemption. The ``consumer expectation'' test 
works for determining whether a company has violated the established 
business relationship exemption because it is consumers themselves who 
will state, in their complaints, that they did not believe the company 
that called was related to the company with which they had done 
business in the past. There will be no such consumer arbiters to 
determine who should pay the fee. The Commission does agree, however, 
that those factors are appropriate ones to consider in determining 
which divisions, subsidiaries, or affiliates should pay a fee.
    To develop a more bright line test for which entities must pay, 
while taking the consumer expectation factors into consideration, the 
Commission will require separate divisions, subsidiaries, or affiliates 
to pay a separate annual fee for access to the national registry under 
the following circumstances: (1) The entity is separately incorporated 
or, for a non-corporate entity such as a partnership, is a similarly 
distinct legal entity; and (2) the entity has or markets under a 
different name. If the name difference reflects only a geographic 
distinction, that will not be sufficient to require the entity to pay a 
separate fee for access. For example, ``ABC Marketer of Oklahoma, 
Inc.'' would not be considered a separate seller, for purposes of the 
Fee Rule, from its affiliate, ``ABC Marketer of Texas, Inc.'' On the 
other hand, if the name difference reflects some other distinction, 
such as product or service, then the separately-incorporated entity 
would be required to pay a separate fee for access. For example, 
``John's Books and Games, Inc.'' would be considered a separate seller 
from its subsidiary, ``John's Computers, Inc.'' \54\
---------------------------------------------------------------------------

    \54\ The Commission does not believe these changes to the 
treatment of corporate subsidiaries and affiliates warrant any 
change to the estimate of the number of entities that will pay for 
access to the national registry, discussed below. There is no 
evidence on the record to indicate that the types of subsidiaries 
and affiliates which no longer will be considered separate sellers 
under the Final Fee Rule are numerous or widespread throughout the 
telemarketing industry.
---------------------------------------------------------------------------

IV. Calculation of Fees

A. Number of Entities Accessing the National Registry

    The first step in establishing the appropriate fees to charge 
entities that access consumer telephone numbers included in the 
national registry is to estimate the number of such entities that would 
be required to pay the fee. In both the User Fee NPRM and the Revised 
Fee NPRM, the Commission acknowledged that this step is among the most 
difficult, given the dearth of information about the number of 
companies currently in the marketplace who make outbound telemarketing 
calls to consumers.\55\ In the User Fee NPRM, the Commission 
determined, after examining relevant industry literature and the record 
in this and past TSR rulemaking proceedings, that the most pertinent 
information for determining the number of firms that would be required 
to pay the proposed user fee would be the number of firms that access 
state do-not-call registries. At that time, the most telemarketing 
firms that accessed any individual state registry was 2,932. Thus, to 
propose a realistic fee structure that would ensure sufficient funds 
would be collected to cover the costs of a national registry, the 
Commission estimated in the User Fee NPRM that 3,000 entities would pay 
for access to the information in the national registry. The Commission 
sought comment and evidence to determine

[[Page 45140]]

whether this estimate was realistic and appropriate.
---------------------------------------------------------------------------

    \55\ See User Fee NPRM, 67 FR at 37363-64, Revised Fee NPRM, 68 
FR at 16241.
---------------------------------------------------------------------------

    Of the 34 comments received in response to the User Fee NPRM, only 
one commenter provided any information relevant to this inquiry, 
stating the number of clients for which it would have to obtain access 
to the national registry. In addition, a second commenter provided some 
company-specific information. Based on these comments, the Commission 
proposed a new estimate of the number of firms that will access the 
national registry, developed through a calculation using the limited 
information provided in the comments, combined with relevant industry-
wide data available and the Commission's knowledge of the industry. 
Based on this detailed calculation, set out in the Revised Fee NPRM, 
the Commission estimated that the total number of firms that would 
access the national registry would be 7,500.\56\
---------------------------------------------------------------------------

    \56\ See Revised Fee NPRM, 68 FR at 16241-42.
---------------------------------------------------------------------------

    As the Commission stated in the Revised Fee NPRM, this calculation 
made a number of significant assumptions based on the best information 
available to the agency at that time. The Commission asked specific 
questions about each of these assumptions, seeking information as to 
their reliability. The Commission also asked commenters to provide any 
information they could about any and all of these assumptions, 
including company-specific information and data that could help the 
agency to refine its estimates of the number of firms that will need to 
access the national registry.
    Once again, the Commission received virtually no comments providing 
information on the validity of the Commission's assumptions. One 
``leading teleservices company'' stated that one of the Commission's 
assumptions--sellers that use third-party telemarketers on average 
employ three different telemarketers to make calls to consumers over 
the course of a year--was ``generally accurate.'' \57\ Two telemarketer 
commenters stated that most of their clients market nationwide.\58\ 
Otherwise, the comments provided no information on this question 
whatsoever. Instead, the major industry association commenters faulted 
the Commission's calculations, claiming that they are ``largely without 
empirical foundation,'' \59\ ``speculative and largely unsupported'' 
and ``completely arbitrary.'' \60\
---------------------------------------------------------------------------

    \57\ IMC-Revised Fee at 1, 4.
    \58\ Id. at 4-5; West-Revised Fee at 3.
    \59\ DMA-Revised Fee at 8.
    \60\ ERA-Revised Fee at 7-8. See also MPA-Revised Fee at 6.
---------------------------------------------------------------------------

    As previously stated, the Commission's calculations are based on 
the best information available to the agency at this time. Although the 
Commission has requested information on this issue on a number of prior 
occasions, the very entities that have access to such information have 
rebuffed the agency at every stage. The Commission has no obligation to 
``conduct a comprehensive study of the telemarketing industry'' to 
determine the proper fees, as suggested by the DMA.\61\ In fact, it has 
reason to doubt such a study would be productive, given the industry's 
ongoing reticence in this area. The Commission has undertaken 
substantial efforts to determine the number of entities that will be 
required to access the national registry. It has scoured industry 
literature, reviewed and analyzed numerous rounds of comments on this 
issue, and used its knowledge of the industry to make basic assumptions 
about its operation. Given this review and analysis, and the limited 
information provided in the comments, the Commission continues to 
believe that its original estimate that 7,500 entities will be required 
to pay for access to the national registry is reasonable and 
appropriate.
---------------------------------------------------------------------------

    \61\ DMA-Revised Fee at 8-10.
---------------------------------------------------------------------------

    However, given the new FCC Rules, additional entities, originally 
exempt from the Amended TSR, now will be required to access the 
national registry. In the Revised Fee NPRM, the Commission estimated 
that a total of 10,900 firms engage in outbound telemarketing to 
consumers.\62\ The Commission reduced that number to account for firms 
that are engaged in charitable solicitations, firms that are calling 
directly from sellers exempt from FTC regulation, and firms that make 
only intrastate calls. Of that group, after the adoption of the FCC 
Rules, only firms that engage in charitable solicitations remain exempt 
from the requirement to access the national registry. The Commission 
estimates that 900 entities engage exclusively in such charitable 
solicitations, resulting in our revised estimate that 10,000 entities 
will be required to access the national registry.
---------------------------------------------------------------------------

    \62\ See Revised Fee NPRM, 68 FR at 16242.
---------------------------------------------------------------------------

B. Access by Area Code; Small Business Access

    In both the User Fee NPRM and the Revised Fee NPRM, the Commission 
proposed a fee structure based on the number of different area codes of 
data that an entity wished to use annually.\63\ The Commission received 
no comments on this issue in response to the Revised Fee NPRM. As a 
result, the Commission will continue to charge for access to the 
national registry based on the number of area codes of information an 
entity requests.
---------------------------------------------------------------------------

    \63\ See User Fee NPRM, 67 FR at 37364; Revised Fee NPRM, 68 FR 
at 16242.
---------------------------------------------------------------------------

    As for small business access to the national registry, the 
Commission proposed, in both the User Fee NPRM and the Revised Fee 
NPRM, to provide free registry access to any firm wishing to obtain 
data from only one to five area codes.\64\ The Commission proposed such 
free access to limit the burden placed on small businesses that only 
require access to a small portion of the national registry. The 
Commission noted that its proposal was consistent with the mandate of 
the Regulatory Flexibility Act, 5 U.S.C. 601, which requires that to 
the extent, if any, a rule is expected to have a significant economic 
impact on a substantial number of small entities, agencies should 
consider regulatory alternatives to minimize such impact.\65\ In the 
Revised Fee NPRM, the Commission sought comment on other alternatives 
that would balance the burdens faced by small businesses with the need 
to raise appropriate fees to fund the registry in an equitable manner, 
as well as on the appropriate level of free access.
---------------------------------------------------------------------------

    \64\ See User Fee NPRM, 67 FR at 37364; Revised Fee NPRM, 68 FR 
at 16243-44.
    \65\ See also Section VII, below, where the Commission 
determines that the instant proposed Rule would not have a 
significant economic impact on a substantial number of small 
entities.
---------------------------------------------------------------------------

    The Commission received few comments in response to this proposal 
in the Revised Fee NPRM. NCL found the Commission's proposal 
``reasonable.'' \66\ S&K, on the other hand, stated that the Commission 
should grant access to five or maybe even ten area codes for free, and 
``employ a graduated system that places the majority of the fees on the 
largest scale sellers or telemarketers, as determined by a mixture of 
revenues, profits, subsidiaries and overall cost structure.'' \67\ In 
contrast, ATA contended that the proposed fee was unconstitutional 
precisely because it would impose differential treatment, shift the 
burden to certain sellers to pay for fees in excess of the benefits 
they would receive, and thus target and penalize the largest entities 
more than simply favor small businesses.\68\ ATA

[[Page 45141]]

also expressly warned that a fee justified largely by the gross revenue 
of paying sellers would not survive judicial scrutiny.\69\ ARDA 
suggested that the Commission should make access to the first five area 
codes free for all sellers. According to ARDA, the ``small business 
that purchases that sixth area code is punished by having to pay for 
the first five. The small-to-medium business would be less inclined to 
circumvent the fee requirement if it were only required to pay an 
incremental cost ($29) for the sixth and seventh and so forth area 
codes rather than $174 for one additional area code.'' \70\
---------------------------------------------------------------------------

    \66\ NCL-Revised Fee at 2.
    \67\ S&K-Revised Fee at 2.
    \68\ ATA-Revised Fee at 10-11.
    \69\ Id. at 12.
    \70\ ARDA-Revised Fee at 6. See also ATA-Revised Fee at 8. The 
FCC Rules note that thirty-three states currently have five or fewer 
area codes. See FCC Rules at ] 54.
---------------------------------------------------------------------------

    After evaluating all of the comments received in this proceeding, 
the Commission continues to believe that providing access to five area 
codes of data for free is an appropriate compromise between the goals 
of equitably and adequately funding the national registry, on the one 
hand, and providing appropriate relief for small businesses, on the 
other.\71\ Moreover, the Commission is persuaded that it would be more 
equitable to provide all firms free access to up to five area codes, 
rather than to only those firms that access five or fewer area codes. 
It is true that a relatively small firm could need to access six area 
codes of data. It does not seem fair to charge that firm the full cost 
for all six area codes, simply because it needed access to one area 
code more than another small firm. The marginal cost of that sixth area 
code should not be so high. As a result, the Commission will provide 
the first five area codes of data from the national registry free to 
all entities that gain access. Section 310.8 of the Fee Rule is revised 
accordingly.
---------------------------------------------------------------------------

    \71\ The Commission continues to believe, as stated in the 
Revised Fee NPRM, that providing small businesses with exemptive 
relief more directly tied to size status would not balance the 
private and public interests at stake any more reasonably than the 
approach selected. Any reduced fee schedule based on a small 
business' size, revenues, or profits would require a certification 
and determination of that status to implement and enforce, and thus 
would present greater administrative, technical, and legal costs and 
complexities than the approach selected by the Commission, which 
does not require proof or verification of small business status. See 
Revised Fee NPRM, 68 FR at 16243, n.52.
---------------------------------------------------------------------------

C. Fees for Access

    As set forth in the Background Section of this Statement, both the 
Appropriations Act and the Implementation Act authorize the Commission 
to assess fees sufficient to cover the costs of implementing and 
enforcing the do-not-call provisions of the Amended TSR, estimated at 
$18.1 million for fiscal year 2003. The Commission continues to 
anticipate that it will need to raise the entire estimated $18.1 
million authorized to cover the costs associated with those efforts in 
this fiscal year. A number of commenters claimed that the Commission 
failed to provide any indication how it intends to spend the $18.1 
million, and that the costs are not justified or necessary.\72\ The 
Commission disagrees.
---------------------------------------------------------------------------

    \72\ See DMA-Revised Fee at 2-6; ERA-Revised Fee at 6-7; MPA-
Revised Fee at 5-6.
---------------------------------------------------------------------------

    As stated in the Revised Fee NPRM, costs for the National Do Not 
Call Registry fall primarily into three broad categories.\73\ First are 
the actual estimated contract costs along with associated agency costs 
to develop and operate the national registry. This includes items such 
as handling consumer registration and complaints, the transfer of 
registration information from state lists to the registry, telemarketer 
access to the registry, and the management and operation of law 
enforcement access to appropriate information. The second category of 
costs relates generally to enforcement efforts. These costs will 
include law enforcement initiatives, both domestic and international, 
to identify targets and challenge alleged violators. Enforcement costs 
also include consumer and business education, which are critical 
complements to enforcement in securing compliance with the ``do-not-
call'' provisions. The third category of costs covers agency 
infrastructure and administration costs, including information 
technology structural supports. In particular, the Consumer Sentinel 
system (the agency's repository for all consumer fraud-related 
complaints) and its attendant infrastructure are being upgraded to 
handle the anticipated increased demand from state law enforcers for 
access to ``do-not-call'' complaints. Further, the Consumer Sentinel 
system will require substantial changes so that it can handle the 
significant additional volume of complaints that is expected.
---------------------------------------------------------------------------

    \73\ See Revised Fee NPRM, 68 FR at 16244.
---------------------------------------------------------------------------

    To raise $18.1 million this fiscal year, and assuming that 10,000 
firms will pay for that access,\74\ the Commission will charge an 
annual fee of $25 for each area code of data accessed.\75\ There will 
be no fee charged to any entity for access to the first five area codes 
of data. In addition, the Commission will place a cap of $7,375 as the 
maximum annual fee that will be charged an entity that wants access to 
the entire national database. The maximum fee will now be charged for 
accessing 300 area codes of data or more.\76\ As a result of this Fee 
Rule, examples of fees that will be charged for various levels of 
access to the national registry are as follows: obtaining up to five 
area codes of data would have no charge; six area codes of data would 
cost $25; seven area codes would cost $50; thirty area codes would cost 
$625; two hundred area codes would cost $4,875; and access to the data 
from all area codes would be capped at $7,375 annually.\77\
---------------------------------------------------------------------------

    \74\ A number of commenters continued to suggest that consumers 
should pay a portion of the costs to implement and operate the 
national registry. See, e.g., ARDA-Revised Fee at 7; IMC-Revised Fee 
at 7; MPA-Revised Fee at 7; PDS-Revised Fee at 1-3. As stated in the 
User Fee NPRM, the Commission does not believe it is appropriate to 
charge consumers to protect their privacy from unwanted and abusive 
telemarketing calls. See User Fee NPRM, 67 FR at 37363. In addition, 
the Implementation Act clearly authorizes the Commission to raise 
the appropriate fees from the industry, and not from consumers.
    \75\ In the Revised Fee NPRM, the Commission assumed that, on 
average, sellers will pay to obtain information from 83 area codes 
of data in the national registry. See Revised Fee NPRM, 68 FR at 
16244, n. 56. The addition of entities making intrastate calls will 
reduce the average number of area codes entities will pay to obtain 
from the national registry, as will our decision to allow all 
entities to obtain five area codes of data for free. As a result, 
the Commission is now estimating that the average entity accessing 
the national registry will purchase 73 area codes of data.
    \76\ The Commission is capping the maximum amount that will be 
charged for access to the entire national registry to ease the 
administrative burdens of operating the system and those faced by 
the largest users of the registry. There are currently 317 area 
codes included in the national registry, and more area codes are 
added on an irregular schedule. If there were no maximum fee for 
access to the national registry, every time a new area code were 
added, all entities that had paid for access to the entire database 
would be required to pay an additional fee prior to being able to 
download the national list. The Commission does not consider the 
limited additional fees that such a requirement would generate to 
outweigh this burden. More limited users, on the other hand, who 
have asked for a specific list of area codes of data, will need to 
change the scope of their access if they wish to obtain any newly 
added area codes. Because they already will be asking for a change 
in their access rights, it will be less of an administrative burden 
to charge those entities for the additional area codes. Thus, 
contrary to ATA's suggestion, the cap in the proposed fee structure 
is sufficiently related to a consideration of the actual 
administrative costs of the registry to justify its use. See ATA-
Revised Fee at 9.
    \77\ DMA contends that while ``a nominal fee unrelated to 
content of the speech may be permissible under certain 
circumstances,''. . . ``a much lower fee [than the Commission has 
proposed] is also needed to conform with Supreme Court First 
Amendment jurisprudence on monetary restrictions on speech.'' DMA-
Revised Fee at 1-2, 6-7. See also ATA-Revised Fee at 15. Contrary to 
the DMA's comment, the fee need not be ``nominal'' so long as it is 
related sufficiently to the costs of administration and enforcement. 
Moreover, ``[n]ominal is necessarily a relative term, to be judged 
by how substantial something is when viewed in its context.'' 
National Awareness Foundation v. Abrams, 812 F.Supp. 431, 433 
(S.D.N.Y. 1994), aff'd 50 F.3d 1159 (2d Cir. 1995). The Commission 
believes that the $25 fee per area code is nominal, as is the 
maximum fee of $7,375 for nationwide access, when considered in the 
context of an annual fee for members of the telemarketing industry 
engaged in commercial speech. Cf. Cox v. New Hampshire, 312 U.S. 
569, 577 (1949)(upholding a fee up to $300, in 1938 dollars, for a 
one-day permit to engage in fully protected speech).

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[[Page 45142]]

    As stated above and in the Revised Fee NPRM, these fees are based 
on certain assumptions and estimates. The Commission anticipates that 
these fees may need to be reexamined periodically and adjusted, in 
future rulemaking proceedings, to reflect actual experience with 
operating the registry.

V. Operation of the National Registry for the Telemarketing Industry

    The Commission is developing a fully-automated, secure website 
dedicated to providing members of the telemarketing industry with 
access to the registry's list of telephone numbers, sorted by area 
code. The first time an entity accesses the system, it will be asked to 
provide certain limited identifying information, such as company name 
and address, company contact person, and the contact person's telephone 
number and email address. If an entity is accessing the registry on 
behalf of a seller-client, the entity also will need to identify that 
client.
    The only consumer information that companies will receive from the 
national registry is a registrant's telephone number. Those telephone 
numbers will be sorted and available by area code. Companies will be 
able to access as many area codes as desired, by selecting, for 
example, all area codes within a certain state. Of course, companies 
also will be able to access the entire national registry, if desired. 
In addition, after providing the required identifying information and 
paying the appropriate fee, if any, companies will be allowed to check, 
via interactive Internet pages, a small number of telephone numbers 
(less than ten) at a time to permit small volume callers to comply with 
the national registry requirements of the TSR without having to 
download a potentially large list of all registered telephone numbers 
within a particular area.
    As previously stated, sellers, telemarketers and other service 
providers will be allowed to access the national registry. When a 
seller first submits an application to access registry information, the 
company will be asked to specify the area codes that it wants to 
access. As discussed above, each seller accessing the registry data 
will be required to pay an annual fee, based on the number of area 
codes of data the seller accesses. Fees will be payable via credit card 
(which will permit the real-time transfer of data) or electronic funds 
transfer (which will require the seller to wait approximately three 
days for the funds to clear before data access will be provided). A 
seller must pay these fees prior to gaining access to the registry, and 
may do so either directly or through another entity to which the seller 
has provided the necessary authority.
    Sellers will be able to access data as often as they like during 
the course of one year (defined as their ``annual period'') for those 
area codes for which they have paid. However, to protect system 
integrity, an account number will support a download of the entire 
national registry only once in any 24-hour period. If, during the 
course of their annual period, sellers need to access data from more 
area codes than those initially selected, they would be required to pay 
for access to those additional area codes. For purposes of these 
additional payments, the annual period is divided into two semi-annual 
periods of six months each. Obtaining additional data from the registry 
during the first semi-annual, six month period will require a payment 
of $25 for each new area code. During the second semi-annual, six month 
period, the charge of obtaining data from each new area code requested 
during that six-month period is $15. These payments for additional data 
would provide sellers access to those additional areas of data for the 
remainder of their annual term.
    After payment is processed, the seller will be given a unique 
account number and permitted access to the appropriate portions of the 
registry. That account number will be used in future visits to the 
website, to shorten the time needed to gain access. On subsequent 
visits to the website, sellers will be able to download either a full 
updated list of numbers from their selected area codes, or a more 
limited list, consisting only of changes to the registry that have 
occurred since the company's last download. This would limit the amount 
of data that a company needs to download during each visit.
    Telemarketers and other service providers working on behalf of 
sellers may obtain access to the registry either directly or through 
the use of their seller-client's unique account number. If access is 
gained directly, i.e., the telemarketer or service provider decides to 
obtain the information on its own behalf, either voluntarily or to 
satisfy other legal requirements, that telemarketer or service provider 
will need to comply with all requirements placed on sellers accessing 
the registry, as previously discussed in this Section. Such 
telemarketers and service providers will be provided a unique account 
number that can be used only by that company, i.e., that account number 
will not authorize other companies to access the registry on behalf of 
the telemarketer or service provider. On the other hand, if 
telemarketers or service providers are accessing the registry through 
the use of their seller-client's account number, the extent of their 
access will be limited to the area codes requested and paid for by 
their seller-clients. They also will be permitted to access the 
registry as often as they wish for no additional cost, once the annual 
fee has been paid by their seller-clients.\78\ As indicated in the Rule 
NPRM discussion of Section 310.4(b)(3)(iv), however, the Rule requires 
a seller or telemarketer to employ a version of the do-not-call 
registry obtained from the Commission no more than three months prior 
to the date any telemarketing call is made.
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    \78\ Telemarketers and service providers working on behalf of 
sellers also will be limited to downloading the entire national 
registry only once in any 24-hour period.
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    Data will be available from the national registry using Internet-
based formats and download methods that serve both small and large 
businesses. Data also will be available in three different sets: full 
lists, change lists, and small list lookups. For the full lists and the 
change lists, downloads may be accomplished via a web browser or a 
programmatic web service. For the small list lookup, a web page will 
allow a person to enter from one to ten telephone numbers on a form. 
After entering the numbers and clicking a button, the national registry 
will display on the web page the list of numbers entered and whether 
each number is in the national registry or not.
    With a web browser, a person will access a secure web page that 
will allow the person to select: a national download (all area codes), 
all area codes from individual states, or individual area codes.\79\ 
After selecting the area codes, the person will choose a flat text file 
or an XML tagged data file. The person also will choose a zipped or 
unzipped file. After making these selections, the person will click a 
``download'' button and be prompted to save the file to his or her 
company computer. If the person chooses the full list, the flat file 
will contain just ten-digit telephone numbers, with a single

[[Page 45143]]

number on each line. For the change list in flat file format, each line 
of the file will contain a telephone number, the date of the change, 
and an ``A'' (for Added) or ``D'' (for Deleted). The change list data 
will be fixed-width fields.
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    \79\ When new area codes are added, the ``by state'' display 
temporarily will show a new area code proximate to but separate from 
its state, to ensure that the new area code has been paid for.
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    The alternative to web browser downloads will be programmatic web 
services using XML tagged data. This will assist larger companies in 
automating downloads of the national registry. The XML tags will 
include the following: a login and encrypted password; the name and 
email address of the company contact person; certification that access 
to the registry is solely to comply with the provisions of this Rule; 
the account number(s) for which the download is being performed; the 
area code of the telephone numbers to be downloaded; and whether a full 
list or change list is to be downloaded.
    Entities that select a change list will be provided all telephone 
numbers that have been added to, or deleted from, the registry since 
the date of their previous access. Change lists, for both flat files 
and XML tagged data, will be available to provide changes on a daily 
basis (representing the additions and deletions from the day before).
    The telemarketer website on the national registry will have a help 
desk available during regular business hours via a secure electronic 
form.

VI. Paperwork Reduction Act

    Pursuant to the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
(``PRA''), the Commission sought public comments on the information 
collection activities contained in the Final Fee Rule. See 67 FR 37362 
(May 29, 2002); 68 FR 16238 (April 3, 2003). The Commission received no 
comments on its PRA analysis nor has it modified its proposal in any 
manner that necessitates revising its original burden estimates for the 
Final Fee Rule.\80\ The Commission additionally sought clearance from 
OMB for those information collection requirements, and obtained it on 
July 24, 2003, under OMB Control No. 3084-0097.
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    \80\ While the Commission is increasing its estimate of the 
number of entities that must pay for access to the national 
registry, that increase is created by the FCC Rules, which require 
entities exempt from the FTC's jurisdiction to gain access. 
Accordingly, the paperwork burden faced by those entities will be 
reported by the FCC, rather than the FTC. In addition, entities that 
access the national registry solely because of the FCC Rules are not 
required to comply with the recordkeeping provisions of the Amended 
TSR. As a result, the increase in the Commission's estimate of the 
number of entities required to access the national registry does not 
affect that aspect of the Commission's prior PRA burden estimates.
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VII. Regulatory Flexibility Act

    The Regulatory Flexibility Act (``RFA''), 5 U.S.C. 601 et seq., 
requires the agency to provide an Initial Regulatory Flexibility 
Analysis (``IRFA'') with its proposed rule, and a Final Regulatory 
Flexibility Analysis (``FRFA'') with its final rule, unless the agency 
certifies that the rule will not have a significant economic impact on 
a substantial number of small entities. As explained in the User Fee 
NPRM, the Revised Fee NPRM, and this Statement, the Commission does not 
expect that its Fee Rule will have the threshold impact on small 
entities. Nonetheless, the Commission published an IRFA with the User 
Fee NPRM, and is also publishing a FRFA with its Final Fee Rule below, 
in the interest of further explaining its determination, even though 
the Commission continues to believe that it is not required to publish 
such analyses.
1. Reasons for Consideration of Agency Action
    The Final Fee Rule has been considered and adopted pursuant to the 
requirements of the Implementation Act and the Appropriations Act, 
which authorize the Commission to collect fees sufficient to implement 
and enforce the ``do-not-call'' provisions of the Amended TSR.
2. Objectives of and Legal Basis for the Final Rule
    As explained above, the objective of the Final Fee Rule is to 
collect fees from entities engaged in telemarketing, pursuant to the 
legal authority set forth in the Implementation Act and Appropriations 
Act.
3. Description and Estimate of Number of Small Entities Affected by the 
Final Rule
    As explained in the Revised Fee NPRM, comments submitted by the 
Small Business Administration cited to information from the North 
American Industry Classification System (``NAICS''), suggesting that 
there are 2,305 firms identified as ``telemarketing bureaus,'' and that 
1,279 of those firms may qualify for small business status, i.e., 
annual receipts of $5 million or less.\81\ Because sellers, and not 
``telemarketing bureaus,'' constituted the relevant small entities 
affected by the Revised Fee NPRM, the Commission sought further public 
comment and information on the number of small business sellers engaged 
in outbound telemarketing and subject to the FTC's jurisdiction, since 
the NAICS classification system does not provide this level of 
detail.\82\ The Commission received no further information in response 
to this request for comment. As a result, the agency is unable at this 
time to provide a reliable estimate of the number of affected sellers. 
In any event, as explained elsewhere in this Statement, the Commission 
believes that, to the extent the Final Fee Rule has an economic impact 
on small business, the Commission has adopted an approach that 
minimizes that impact to ensure that it is not substantial, while 
fulfilling the legal mandate of the Implementation Act and 
Appropriations Act to ensure that the telemarketing industry supports 
the cost of the National Do Not Call Registry.
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    \81\ See 68 FR at 16246 n.65.
    \82\ Id.
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4. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements for Small Entities
    These requirements were discussed in the Revised Fee NPRM section 
regarding agency information collection activities subject to OMB 
approval under the PRA.\83\ The information collection activities at 
issue consist principally of the requirement that firms, regardless of 
size, that access the national registry submit minimal identifying and 
payment information, which is necessary for the agency to collect the 
required fees.
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    \83\ See Revised Fee NPRM, 68 FR at 16245.
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    Compliance requirements of the Final Fee Rule, other than 
information collection requirements within the meaning of the PRA, are 
discussed elsewhere in this document and in the User Fee NPRM and 
Revised Fee NPRM. In sum, as noted earlier, small entities and all 
other entities subject to the Final Fee Rule are required to pay and 
obtain access to the National Do Not Call Registry in order to 
reconcile their calling lists with the phone numbers maintained in the 
national registry.
5. Duplication With Other Federal Rules
    None.
6. Description of Any Significant Alternatives to the Final Rule
    As discussed in the User Fee NPRM, the Commission considered a 
number of alternatives to the proposed fees.\84\ In both the User Fee 
NPRM and Revised Fee NPRM, the Commission solicited comment on any 
significant alternatives that would further minimize the impact on 
small entities consistent with the objectives stated in those Notices, 
the Appropriations Act and the Implementation Act. As discussed

[[Page 45144]]

elsewhere in this Statement, the Commission finds that no significant 
alternatives are available consistent with those objectives.
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    \84\ See User Fee NPRM, 67 FR at 37367.
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List of Subjects in 16 CFR Part 310

    Telemarketing, Trade practices.

VIII. Final Rule

0
Accordingly, for the reasons set forth above, the Commission hereby 
amends part 310 of title 16 of the Code of Federal Regulations as 
follows:

PART 310--TELEMARKETING SALES RULE

0
1. The authority citation for part 310 continues to read as follows:

    Authority: 15 U.S.C. 6101-6108.

0
2. Add Sec.  310.8 to read as follows:


Sec.  310.8  Fee for access to the National Do Not Call Registry.

    (a) It is a violation of this Rule for any seller to initiate, or 
cause any telemarketer to initiate, an outbound telephone call to any 
person whose telephone number is within a given area code unless such 
seller, either directly or through another person, first has paid the 
annual fee, required by Sec.  310.8(c), for access to telephone numbers 
within that area code that are included in the National Do Not Call 
Registry maintained by the Commission under Sec.  310.4(b)(1)(iii)(B); 
provided, however, that such payment is not necessary if the seller 
initiates, or causes a telemarketer to initiate, calls solely to 
persons pursuant to Sec. Sec.  310.4(b)(1)(iii)(B)(i) or (ii), and the 
seller does not access the National Do Not Call Registry for any other 
purpose.
    (b) It is a violation of this Rule for any telemarketer, on behalf 
of any seller, to initiate an outbound telephone call to any person 
whose telephone number is within a given area code unless that seller, 
either directly or through another person, first has paid the annual 
fee, required by Sec.  310.8(c), for access to the telephone numbers 
within that area code that are included in the National Do Not Call 
Registry; provided, however, that such payment is not necessary if the 
seller initiates, or causes a telemarketer to initiate, calls solely to 
persons pursuant to Sec. Sec.  310.4(b)(1)(iii)(B)(i) or (ii), and the 
seller does not access the National Do Not Call Registry for any other 
purpose.
    (c) The annual fee, which must be paid by any person prior to 
obtaining access to the National Do Not Call Registry, is $25 per area 
code of data accessed, up to a maximum of $7,375; provided, however, 
that there shall be no charge for the first five area codes of data 
accessed by any person, and provided further, that there shall be no 
charge to any person engaging in or causing others to engage in 
outbound telephone calls to consumers and who is accessing the National 
Do Not Call Registry without being required under this Rule, 47 CFR 
64.1200, or any other federal law. Any person accessing the National Do 
Not Call Registry may not participate in any arrangement to share the 
cost of accessing the registry, including any arrangement with any 
telemarketer or service provider to divide the costs to access the 
registry among various clients of that telemarketer or service 
provider.
    (d) After a person, either directly or through another person, pays 
the fees set forth in Sec.  310.8(c), the person will be provided a 
unique account number which will allow that person to access the 
registry data for the selected area codes at any time for twelve months 
following the first day of the month in which the person paid the fee 
(``the annual period''). To obtain access to additional area codes of 
data during the first six months of the annual period, the person must 
first pay $25 for each additional area code of data not initially 
selected. To obtain access to additional area codes of data during the 
second six months of the annual period, the person must first pay $15 
for each additional area code of data not initially selected. The 
payment of the additional fee will permit the person to access the 
additional area codes of data for the remainder of the annual period.
    (e) Access to the National Do Not Call Registry is limited to 
telemarketers, sellers, others engaged in or causing others to engage 
in telephone calls to consumers, service providers acting on behalf of 
such persons, and any government agency that has law enforcement 
authority. Prior to accessing the National Do Not Call Registry, a 
person must provide the identifying information required by the 
operator of the registry to collect the fee, and must certify, under 
penalty of law, that the person is accessing the registry solely to 
comply with the provisions of this Rule or to otherwise prevent 
telephone calls to telephone numbers on the registry. If the person is 
accessing the registry on behalf of sellers, that person also must 
identify each of the sellers on whose behalf it is accessing the 
registry, must provide each seller's unique account number for access 
to the national registry, and must certify, under penalty of law, that 
the sellers will be using the information gathered from the registry 
solely to comply with the provisions of this Rule or otherwise to 
prevent telephone calls to telephone numbers on the registry.

    By direction of the Commission.
Donald S. Clark,
Secretary.

    Note: The following appendix will not appear in the Code of 
Federal Regulations.

Appendix A

List of Acronyms for the TSR Revised Fee Proposal Commenters

Commenter--Acronym
American Bankers Association--ABA
American Resort Development Association--ARDA
American Teleservices Association--ATA
Bahe, Kevin--KB
Bank of America--BOA
Bouffard, David L.--DB
Brown, Jarrett--JB
Citigroup Inc.--Citi
Convergys Corporation--Convergys
Direct Marketing Association--DMA
Electronic Retailing Association--ERA
Financial Services Roundtable--FSR
Girty, John--JG
Goldstein, Mitchell P.--MG
Greene, Shawn--SG
Household Bank (SB), N.A.--Household
Infocision Management Corporation--IMC
Jamtgaard, O. G. Jr.--OJ
Johnson, Jeff--JJ
Lamonds, Cheryl E.--CL
Magazine Publishers of America--MPA
McGowan, Dilton--DM
National Consumers League--NCL
Phone Data Strategies--PDS
Pressley, Bob--BP
Samuels, Sara--SS
SBC Communications Inc.--SBC
Scheid, Justin & Matt Kiverts--S&K
Scott, Richey L.--RS
Smith, Jenna--JS
Stora, Christine--CS
Stutes, Gerald--GS
The Verizon companies--Verizon
VISA U.S.A.--VISA
West Corporation--West

[FR Doc. 03-19568 Filed 7-30-03; 8:45 am]
BILLING CODE 6750-01-P