[Federal Register Volume 68, Number 164 (Monday, August 25, 2003)]
[Rules and Regulations]
[Pages 50978-50980]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-21644]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 64

[CG Docket No. 02-278, FCC 03-208]


Rules and Regulations Implementing the Telephone Consumer 
Protection Act of 1991.

AGENCY: Federal Communications Commission.

ACTION: Final rule; establishment of effective date.

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SUMMARY: We recently revised the current Telephone Consumer Protection 
Act of 1991 (TCPA) rules, and adopted new rules modifying the Federal 
Communications Commission's (Commission's) unsolicited facsimile 
advertising requirements. This document establishes an effective date 
of January 1, 2005 for one provision of those rules. We have also 
modified the effective date of our determination that an established 
business relationship will no longer be sufficient to show that an 
individual or business has given express permission to receive 
unsolicited facsimile advertisements and the rule provision requiring 
that the sender of a facsimile advertisement first obtain the 
recipient's express permission in writing. The effective date of our 
amended definition of an ``established business relationship'' is not 
affected by our determination here.

DATES: Section 64.1200(a)(3)(i) published at 68 FR 44144, July 25, 
2003, is effective January 1, 2005.

ADDRESSES: Federal Communications Commission, 445 12th Street SW., 
Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT: Erica H. McMahon or Richard D. Smith 
at 202-418-2512, Consumer & Governmental Affairs Bureau, Federal 
Communications Commission.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order 
on Reconsideration in CG Docket No. 02-278, FCC 03-208, adopted on 
August 18, 2003 and released August 18, 2003. The full text of this 
document is available at the Commission's Web site http://www.fcc.gov 
on the Electronic Comment Filing System and for public inspection and 
copying during regular business hours in the FCC Reference Center, Room 
CY-A257, 445 12th Street, SW., Washington, DC 20554. The complete text 
may be purchased from the Commission's copy contractor, Qualex 
International, 445 12th Street, SW., Room CY-B402, Washington, DC 
20554. To request materials in accessible formats for people with 
disabilities (braille, large print, electronic files, audio format), 
send an email to [email protected] or call the Consumer & Governmental 
Affairs Bureau at (202) 418-0531 (voice) or (202) 418-7365 (tty). This 
Order on Reconsideration can also be downloaded in Text or ASCII 
formats at http://www.fcc.gov/cgb.

Synopsis

    On July 3, 2003, the Commission released a Report and Order 
revising many of its telemarketing and facsimile advertising rules 
pursuant to the TCPA. See 68 FR 44144, July 25, 2003. Pursuant to 
Section 1.108 of the Commission's rules, 47 CFR 1.108, on our own 
motion, we issue this limited reconsideration of the Report and Order 
and extend, until January 1, 2005, the effective date of our 
determination that an established business relationship will no longer 
be sufficient to show that an individual or business has given express 
permission to receive unsolicited facsimile advertisements. We also 
establish January 1, 2005 as the effective date of amended rule 47 CFR 
64.1200(a)(3)(i), which provides that ``a facsimile advertisement is 
not ``unsolicited'' if the recipient has granted the sender prior 
express invitation or permission to deliver the advertisement, as 
evidenced by a signed, written statement that includes the facsimile 
number to which any advertisements may be sent and clearly indicates 
the recipient's consent to receive such facsimile advertisements from 
the sender.''
    In the Report and Order, the Commission reversed its prior 
conclusion that an established business relationship provides companies 
with the necessary express permission to send faxes to their customers. 
The Commission determined that the established business relationship 
would no longer be sufficient to show that an individual or business 
has given express permission to receive unsolicited facsimile 
advertisements. Instead, the Commission concluded that the

[[Page 50979]]

recipient's express invitation or permission must be in writing and 
include the recipient's signature. The recipient must clearly indicate 
that he or she consents to receiving such faxed advertisements from the 
company to which permission is given, and must provide the individual's 
or business's fax number to which faxes may be sent.
    On July 25, 2003, the American Society of Association Executives 
(ASAE) filed a petition for emergency clarification of the rules 
governing unsolicited facsimile advertisements as they apply to tax-
exempt nonprofit organizations. This petition asked the Commission to 
issue a clarification that unsolicited facsimile communications are not 
prohibited when issued by tax-exempt nonprofit purposes. In addition, 
ASAE filed a petition for stay of the unsolicited facsimile rules as 
they apply to tax-exempt nonprofits in the event the Commission is 
unable to clarify the rules prior to their effective date. Many of 
ASAE's members and other organizations have filed comments in support 
of ASAE's petitions. The National Association of Realtors (NAR) also 
filed, on August 1, 2003, a Request for Emergency Stay of all of the 
facsimile advertisement rules, asking the Commission to grant a one-
year stay of the recently adopted rules ``to permit NAR and its members 
sufficient time to review and comply with the Commission's new, 
unanticipated, and unprecedented, unsolicited fax rules.'' A Request 
for Stay of the amended rules concerning unsolicited facsimile 
advertising as they apply to the publishers of Requester Publications, 
along with a Request for Expedited Clarification of the unsolicited 
facsimile rules, were filed by Proximity Marketing on August 6, 2003. 
In addition, on August 8, 2003, a Request for Stay of the amended rules 
concerning unsolicited facsimile advertising as they apply to political 
action committees was filed by the National Association of Business 
Political Action Committees. The Chamber of Commerce of the United 
States, the Community Association Institute, the National Association 
of Manufacturers, the National Association of Wholesaler-Distributors, 
the National Restaurant Association, and the National Federation of 
Independent Business (Chamber of Commerce of the United States, et al.) 
filed, on August 8, 2003, a Request for Stay of the amended rules that 
apply to unsolicited commercial faxes. The American Society of Travel 
Agents, Mortgage Bankers Association of America, National Association 
of Mortgage Brokers, Consumer Mortgage Coalition, and the Midwest 
Circulation Association (collectively, the Business Users Coalition) 
also submitted a Petition for Emergency Stay of at least six (6) months 
of the rules regarding unsolicited facsimile advertisements. A Petition 
for Stay of the rules governing the nature of ``express permission'' 
required to send advertisements by fax was filed by American Business 
Media. A Petition for Emergency Stay & Clarification of the amended 
rules governing unsolicited facsimile advertisements as they apply to 
tax-exempt nonprofit organizations was submitted by the Air 
Conditioning Contractors of America. A Request for Stay of those rules 
governing unsolicited fax advertising was filed by the American 
Dietetic Association. Reed Elsevier Inc. submitted a Motion for Stay of 
the effective date of the amended fax consent rule at 64.1200(a)(3)(i). 
The Newspaper Association of America and the National Newspaper 
Association filed a Petition for Stay of the Commission's amended rules 
on unsolicited facsimile advertisements.
    The American Teleservices Association (ATA) also submitted on July 
25, 2003 a Request for Expedited Stay of the Commission's revisions to 
the rules implementing the TCPA. The ATA requests that the Commission 
stay the revisions to the rules implementing the TCPA, pending a final 
decision on judicial review of the new rules. ATA's petition relates 
primarily to the new telephone solicitation rules, including the 
national do-not-call registry.
    We now, on our own motion, issue this limited reconsideration of 
the effective date of our determination that an established business 
relationship will no longer be sufficient to show that an individual or 
business has given express permission to receive unsolicited facsimile 
advertisements, as well as the amended unsolicited facsimile provisions 
at 47 CFR 64.1200(a)(3)(i). Section 64.1200(a)(3)(i), as amended, 
requires the sender of a facsimile advertisement to first obtain from 
the recipient a signed, written statement that includes the facsimile 
number to which any advertisements may be sent and clearly indicates 
the recipient's consent to receive such facsimile advertisements from 
the sender. The comments filed after the release of the Report and 
Order indicate that many organizations may need additional time to 
secure this written permission from individuals and businesses to whom 
they fax advertisements. We believe that, in light of this new 
information, the public interest would best be served by allowing 
senders of such advertisements additional time to obtain such express 
permission before the new rules become effective. In addition, this 
effective date will allow the Commission the opportunity to consider 
any petitions for reconsideration and other filings that may be made on 
this issue. We retain the discretion to extend the effective date 
should circumstances warrant such an action. We emphasize that our 
existing TCPA rules prohibiting the transmission of unsolicited 
advertisements to a telephone facsimile machine will remain in effect 
during the pendancy of this extension. Under these rules, those 
transmitting facsimile advertisements must have an established business 
relationship or prior express permission from the facsimile recipient 
to comply with our rules. In addition, the effective date of the other 
amended facsimile rules remains unchanged by this Order on 
Reconsideration. See 47 CFR 68.318(d) (amending the rules to require 
any fax broadcaster that demonstrates a high degree of involvement in 
the transmission of messages to be identified on the facsimile, along 
with the identification of the sender).
    We emphasize that the only effective date of the Commission's 
Report and Order established by this Order on Reconsideration is the 
requirement that the sender of a facsimile advertisement first obtain 
the recipient's express permission in writing. In addition, as of 
January 1, 2005, an established business relationship will no longer be 
sufficient to show that an individual or business has given express 
permission to receive unsolicited facsimile advertisements. Therefore, 
until the amended rule at 47 CFR 64.1200(a)(3)(i) becomes effective on 
January 1, 2005, an established business relationship will continue to 
be sufficient to show that an individual or business has given express 
permission to receive facsimile advertisements. The effective date of 
our amended definition of an ``established business relationship'' is 
not affected by our determination here.
    We have considered and rejected ATA's request to stay the revisions 
to the rules implementing the TCPA to the extent that such request 
extends beyond the fax rules discussed above. Although the Commission 
has declined to adopt a single standard for requests for injunctive 
relief, we generally consider four criteria: (1) The likelihood of 
success on the merits, (2) the threat of irreparable harm absent grant 
of preliminary relief, (3) the degree of injury to other parties if 
relief is granted, and (4) that a stay will be in the public interest. 
See Virginia Petroleum Jobbers Ass'n v. Federal Power Commission, 259

[[Page 50980]]

F.2d 921 (D.C. Cir. 1958). We conclude that ATA's request does not 
satisfy the factors governing the issuance of a stay.
    The actions contained herein have not changed our Final Regulatory 
Flexibility Analysis (FRFA), which is set forth in the Report and 
Order. Thus, no supplemental FRFA is necessary. In addition, the action 
contained herein imposes no new or modified reporting and/or 
recordkeeping requirements or burdens on the public.

Ordering Clauses

    1. Accordingly, pursuant to sections 1-4, 222, 227, and 303(r) of 
the Communications Act of 1934, as amended, 47 U.S.C. 151-154, 222 and 
227; and section 1.108 of the Commission's Rules, 47 CFR 1.108, of the 
Commission's Rules, this Order on Reconsideration in CG Docket No. 02-
278 is adopted and the Report and Order, FCC 03-153, is modified as set 
forth herein.
    2. Subject to the effective dates set forth above, the National 
Association of Realtors' Request for Emergency Stay is dismissed 
without prejudice.
    3. Subject to the effective dates set forth above, the American 
Society of Association Executives' Petition for Stay is dismissed 
without prejudice.
    4. Subject to the effective dates set forth above, Proximity 
Marketing Request for Stay is dismissed without prejudice.
    5. Subject to the effective dates set forth above, the National 
Association of Business Political Action Committees' Request for Stay 
is dismissed without prejudice.
    6. Subject to the effective dates set forth above, the Chamber of 
Commerce of the United States et al. Request for Stay is dismissed 
without prejudice.
    7. Subject to the effective dates set forth above, the Business 
Users Coalition's Petition for Emergency Stay is dismissed without 
prejudice.
    8. Subject to the effective dates set forth above, the American 
Business Media's Petition for Stay is dismissed without prejudice.
    9. Subject to the effective dates set forth above, the Air 
Conditioning Contractors of America's Petition for Emergency Stay is 
dismissed without prejudice.
    10. Subject to the effective dates set forth above, the American 
Dietetic Association's Request for Stay of the Implementation of 
Regulations is dismissed without prejudice.
    11. Subject to the effective dates set forth above, Reed Elsevier 
Inc.''s Motion for Stay is dismissed without prejudice.
    12. Subject to the effective dates set forth above, the Newspaper 
Association of America and the National Newspaper Association's 
Petition for Stay is dismissed without prejudice.
    13. The American Teleservices Association Request for Expedited 
Stay is dismissed without prejudice to the extent it seeks a stay of 
the rules affected by the effective dates set forth above, but is 
otherwise denied.
    14. The effective date for the Commission's determination that an 
established business relationship will no longer be sufficient to show 
that an individual or business has given express permission to receive 
unsolicited facsimile advertisements and the requirement that the 
sender of a facsimile advertisement first obtain the recipient's 
express permission in writing, as codified at 47 CFR 64.1200(a)(3)(i), 
IS January 1, 2005, and that this Order on Reconsideration is effective 
upon publication in the Federal Register. In light of the need to allow 
affected entities time to comply with the new faxing rules, we find 
good cause, pursuant to 5 U.S.C. 553(d), to make this effective on less 
than 30 days' notice.

List of Subjects

47 CFR Part 64

    Telephone.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 03-21644 Filed 8-22-03; 8:45 am]
BILLING CODE 6712-01-P