[Federal Register Volume 69, Number 62 (Wednesday, March 31, 2004)]
[Proposed Rules]
[Pages 16873-16886]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-7226]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 64

[CG Docket Nos. 04-53 and 02-278; FCC 04-52]


Rules and Regulations Implementing the Controlling the Assault of 
Non-Solicited Pornography and Marketing Act of 2003; Rules and 
Regulations Implementing the Telephone Consumer Protection Act of 1991

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: This document seeks comment on how best to implement

[[Page 16874]]

regulations to protect consumers from unwanted mobile service 
commercial messages. This document also seeks comment on two possible 
revisions to rules implementing the national do-not-call registry.

DATES: Comments in CG Docket No. 04-53, concerning unwanted mobile 
service commercial messages and the CAN-SPAM Act, are due on or before 
April 30, 2004 and reply comments are due on or before May 17, 2004. 
Comments in CG Docket No. 02-278, concerning both a limited safe harbor 
under the TCPA and the required frequency for telemarketers to access 
the national do-not-call registry, are due on or before April 15, 2004 
and reply comments are due on or before April 26, 2004. Written 
comments by the public on the proposed information for this collection 
for CG Docket No. 04-53 and CG Docket No. 02-278, are due April 30, 
2004. Written comments must be submitted by the Office of Management 
and Budget (OMB) on the proposed information collection on or before 
June 1, 2004.

ADDRESSES: Parties who choose to file comments by paper must file an 
original and four copies to the Commission's Secretary, Marlene H. 
Dortch, Office of the Secretary, Federal Communications Commission, 445 
12th Street, SW., Room TW-A325, Washington, DC 20554. Comments may also 
be filed using the Commission's Electronic Filing System, which can be 
accessed via the Internet at http://www.fcc.gov/e-file/ecfs.html. In 
addition to filing comments with the Secretary, a copy of any comments 
on the information collections contained herein should be submitted to 
Les Smith, Federal Communications Commission, Room 1-A804, 445 12th 
Street, SW., Washington, DC 20554, or via the Internet to 
[email protected] and to Kristy L. LaLonde, OMB Desk Officer, Room 10234 
NEOB, 725 17th Street, NW., Washington, DC 20503 via the Internet to 
[email protected] or by fax to 202-395-5167.

FOR FURTHER INFORMATION CONTACT: Ruth Yodaiken, of the Consumer & 
Government Affairs Bureau at (202) 418-2512 (voice), or e-mail 
[email protected]. For additional information concerning the 
information collection contained in this document, contact Leslie Smith 
at (202) 418-0217 or via the Internet at [email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice 
of Proposed Rulemaking (NPRM), Rules and Regulations Implementing the 
Controlling the Assault of Non-Solicited Pornography and Marketing Act 
of 2003; CG Docket No. 04-53; and this Further Notice of Proposed 
Rulemaking (FNPRM), Rules and Regulations Implementing the Telephone 
Consumer Protection Act of 1991, CG Docket No. 02-278, FCC 04-53, 
adopted March 11, 2004, and released March 19, 2004. The full text of 
this document is available on the Commission's Web site Electronic 
Comment Filing System and for public inspection during regular business 
hours in the FCC Reference Center, Room CY-A257, 445 12th Street, SW., 
Washington, DC 20554. To request materials in accessible formats for 
people with disabilities (braille, large print, electronic files, audio 
format), send an e-mail to [email protected] or call the Consumer & 
Governmental Affairs Bureau at (202) 418-0531 (voice), (202) 418-7365 
(TTY).
    Comments filed through the ECFS can be sent as an electronic file 
via the Internet to http://www.fcc.gov/e-file/ecfs.html. Generally, 
only one copy of an electronic submission must be filed. If multiple 
docket or rulemaking numbers appear in the caption of this proceeding, 
however, commenters must transmit one electronic copy of the comments 
to each docket or rulemaking number referenced in the caption. In 
completing the transmittal screen, commenters should include their full 
name, Postal Service mailing address, and the applicable docket or 
rulemaking number. Parties may also submit an electronic comment by 
Internet e-mail. To get filing instructions for e-mail comments, 
commenters should send an e-mail to [email protected], and should include 
the following words in the body of the message, ``get form .'' A sample form and directions will be sent in 
reply. Parties who choose to file by paper must file an original and 
four copies of each filing. If more than one docket or rulemaking 
number appears in the caption of this proceeding, commenters must 
submit two additional copies for each additional docket or rulemaking 
number. Filings can be sent by hand or messenger delivery, by 
commercial overnight courier, or by first-class or overnight U.S. 
Postal Services mail (although we continue to experience delays in 
receiving U.S. Postal Service mail). The Commission's contractor, 
Natek, Inc., will receive hand-delivered or messenger-delivered paper 
filings for the Commission's Secretary at 236 Massachusetts Avenue, 
NE., Suite 110, Washington, DC 20002. The filing hours at this location 
are 8 a.m. to 7 p.m. All hand deliveries must be held together with 
rubber bands or fasteners. Any envelopes must be disposed of before 
entering the building. Commercial overnight mail (other than U.S. 
Postal Service Express Mail and Priority Mail) must be sent to 9300 
East Hampton Drive, Capitol Heights, MD 20743. U.S. Postal Service 
first-class mail, Express Mail, and Priority Mail should be addressed 
to 445 12th Street, SW., Washington, DC 20554. All filings must be 
addressed to the Commission's Secretary, Marlene H. Dortch, Office of 
the Secretary, Federal Communications Commission, 445 12th Street, SW., 
Room TW-B204, Washington, DC 20554. Parties who choose to file paper 
comments also should send four paper copies of their filings to Kelli 
Farmer, Federal Communications Commission, Room 4-C734, 445 12th 
Street, SW., Washington, DC 20554. In addition, commenters choosing to 
file in paper must send copies to the Commission's copy contractor, 
Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, 
Washington, D.C. 20554. Copies of any subsequently filed documents in 
this matter will be available for public inspection and copying during 
regular business hours at the FCC Reference Information Center, Portals 
II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554.

Paperwork Reduction Act

    This NPRM and FNRPM contain proposed and modified information 
collections. The Commission, as part of its continuing effort to reduce 
paperwork burdens, invited the general public and OMB to comment on the 
information collection contained in this NPRM and FNPRM, as required by 
the Paperwork Reduction Act of 1995, Public Law 104-13. Public and 
agency comments are due at the same time as other comments on this 
NPRM; OMB notification of action is due 60 days from date of 
publication of this NPRM and FNPRM in the Federal Register. Comments 
should address: (a) Whether the proposed collection of information is 
necessary for the proper performance of the functions of the 
Commission, including whether the information shall have practical 
utility; (b) the accuracy of the Commission's burden estimates; (c) 
ways to enhance the quality, utility, and clarity of the information 
collected; and (d) ways to minimize the burden of the collection of 
information on the respondents, including the use of automated 
collection techniques or other forms of information technology.
    OMB Control Number: 3060-xxxx.
    Title: Rules and Regulations Implementing the Controlling the 
Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-
SPAM); FCC 04-52.

[[Page 16875]]

    Form Number: N/A.
    Type of Review: New Collection.
    Respondents: Business or other for-profit entities.
    Number of Respondents: There are approximately 22,620,000 total 
businesses in the USA. We would assume that only--at most--half of 
those send unwanted commercial electronic mail messages.
    Estimated Time per Response: Varies with proposed rules. For the 
domain name proposals, this might only affect CMRS carriers to report 
domain names, and senders of commercial messages to check periodically. 
Census data indicates that there are approximately 350 CMRS carriers. 
The proposal involving a registry of individual addresses would involve 
checking a list of mail addresses regularly and comparing that to any 
list the sender has. We note that with the adoption of the CAN-SPAM Act 
in general, since January 1, 2004, senders are prohibited from sending 
commercial electronic mail messages to any recipient who makes a 
request not to receive any more such mail from that sender. Hence, 
senders must already check a list of electronic mail addresses against 
a list they must keep of anyone who has requested not to receive such 
mail. The Commission noted in the CMRS Competition Report that there 
are approximately 142 million mobile subscribers. 1.5-12 hours
    Frequency of Responses: On occasion. This is a recordkeeping 
requirement.
    Total Annual Burden: Approximately 17 million hours-132 million 
hours (depending on the options).
    Total Annual Cost: $1,750,000.
    Needs and Uses: The item asks how senders can identify electronic 
mail addresses as belonging to mobile services messaging systems, which 
the statute requires the FCC to protect. We seek comment in particular 
on whether there could be a list or standard naming convention of 
domain names; or an individual registry of electronic mail addresses. 
Further we ask about whether there are automatic challenge-response 
mechanisms that would alert senders that they are sending their message 
to such a subscriber. Further, we explore mechanisms that do not 
require the sender to recognize the addresses. These methods are 
filtering mechanisms. We also explore the use of senders tagging their 
messages to identify them as commercial. These steps are examined for 
their usefulness in giving wireless subscribers the ability to stop 
receiving unwanted commercial mobile services messages.
    OMB Control Number: 3060-0519.
    Title: Rules and Regulations Implementing the Telephone Consumer 
Protection Act (TCPA) of 1991, NPRM, CG Docket No. 02-278, FCC 04-52.
    Form Number: N/A.
    Type of Review: Revision of a currently approved collection.
    Respondents: Business or other for-profit entities; Not-for-profit 
institutions.
    Number of Respondents: 30,000.
    Estimated Time per Response: 3 hours (average).
    Frequency of Response: On occasion. This is a reporting 
requirement.
    Total Annual Burden: 90,000 hours.
    Total Annual Costs: $1,710,000.
    Needs and Uses: The current total public disclosure and 
recordkeeping burden for collections of information under the TCPA 
rules is 1,728,600 hours, as stated most recently in the Commission's 
OMB submission to extend approval of the information collection in 
connection with the TCPA rules. We believe that the amended safe 
harbor, which would require telemarketers to scrub their call lists 
monthly, could increase the burdens by 60,000 hours and increase the 
total annual costs by $855,000 to $1,710,000.

Proposal Revision to Certain Recordkeeping Requirements

    The Commission seeks comment on whether to revise certain 
recordkeeping requirements that must be met before companies may avail 
themselves of any ``safe harbor'' protections for violating the do-not-
call rules. Companies that conduct telemarketing already maintain their 
own do-not-call lists and many of them must reconcile their lists with 
the national do-not-call list on a quarterly basis. We believe that any 
additional recordkeeping burden as a result of specific ``safe harbor'' 
requirements would be minimal for most telemarketers. We estimate that 
this requirement will account for an additional 2 hours of 
recordkeeping burden per company, or an additional 60,000 hours.

Synopsis

I. CAN-SPAM

A. Definition of Mobile Service Commercial Messages

    Section 14(b)(1) of the Controlling the Assault of Non-Solicited 
Pornography and Marketing Act of 2003 (CAN-SPAM Act or the Act) states 
that the Commission shall adopt rules to provide subscribers with the 
ability to avoid receiving a ``mobile service commercial message'' 
(MSCM) unless the subscriber has expressly authorized such messages 
beforehand. The Act defines an MSCM as a ``commercial electronic mail 
message that is transmitted directly to a wireless device that is 
utilized by a subscriber of commercial mobile service'' as defined in 
47 U.S.C. 332(d) ``in connection with that service.'' For purposes of 
this discussion, we shall refer to mobile service messaging as MSM. As 
a threshold matter, we commence our inquiry by exploring the scope of 
messages covered by section 14.
1. Commercial Electronic Mail Message
    Although the Act defines an electronic mail message broadly as a 
message having a unique electronic mail address with ``a reference to 
an Internet domain,'' the scope of electronic messages covered under 
section 14 is narrowed. MSCMs are only those electronic mail messages 
``transmitted directly to a wireless device that is utilized by a 
subscriber of commercial mobile service'' as defined in 47 U.S.C. 
332(d) ``in connection with that service.'' Section 332(d) defines the 
term ``commercial mobile service'' as a mobile service that is provided 
for profit and makes interconnected service available to the public or 
to such classes of eligible users as to be effectively available to a 
substantial portion of the public. The Commission equates the statutory 
term ``commercial mobile service'' with ``commercial mobile radio 
service'' or CMRS used in its rules.
    Accordingly, it appears that only commercial electronic messages 
transmitted directly to a wireless device used by a CMRS subscriber 
would fall within the definition of MSCMs under the Act. Further, we 
note that the Act states that an electronic mail message shall include 
a unique electronic mail address, which is defined to include two 
parts: (1) ``a unique user name or mailbox;'' and (2) ``a reference to 
an Internet domain.'' Thus, it appears that MSCM would be limited under 
the Act, to a message that is transmitted to an electronic mail address 
provided by a CMRS provider for delivery to the addressee subscriber's 
wireless device. We seek comment on this interpretation and its 
alternatives. Commenters should address whether only these or other 
messages would fall under the definition of MSCM.
    Under the Act, whether an electronic mail message is considered 
``commercial'' is based upon its ``primary purpose.'' It meets this 
definition if its primary purpose is ``the commercial advertisement or 
promotion of a commercial product or service (including content on an 
Internet website operated for a commercial purpose).'' A ``commercial'' 
message for

[[Page 16876]]

purposes of the Act does not include a transactional or relationship 
message. The Act requires the FTC to issue regulations defining the 
relevant criteria to facilitate the determination of the primary 
purpose of an electronic mail message by January of 2005.
2. Transmitted Directly to a Wireless Device Used by a Subscriber of 
Commercial Mobile Service
    As explained above, in order to satisfy the definition of an MSCM, 
the message must be ``transmitted directly to a wireless device.'' In 
light of the definition of an MSCM, as discussed above, it appears that 
the statutory language would be satisfied when a message is transmitted 
to an electronic mail address provided by a CMRS provider for delivery 
to the addressee subscriber's wireless device. As discussed below, we 
believe that the specific transmission technique used in delivering a 
particular message may not be relevant under the statute, and that 
messages ``forwarded'' by a subscriber to his or her own wireless 
device are not covered under section 14. We seek comment on these 
interpretations as well as the issues described below.
    We have asked above whether a message becomes an MSCM only if it is 
transmitted to a wireless device used by a subscriber of CMRS ``in 
connection with that service.'' We seek comment on whether an 
interpretation that all commercial electronic mail messages sent to 
CMRS carriers' mobile messaging systems are MSCMs would be consistent 
with the definition of MSCM in the Act. For example, do CMRS carriers 
offer services through which electronic mail messages are sent directly 
to wireless devices other than in connection with commercial mobile 
service as defined in section 332(d)? Commenters should also discuss 
any other relevant issues involving the definition of MSCM.
    Transmission techniques. Currently, there appear to be two main 
methods for transmitting messages to a wireless device, and those 
methods are through push and pull technologies. Message transmission 
techniques using ``pull'' technologies store messages on a server until 
a recipient initiates a request to access the messages from either a 
wireless or non-wireless device. ``Push'' technologies automatically--
without action from the recipient--send messages to a recipient's 
wireless device. Certain messages that are initiated as electronic mail 
messages on the Internet and converted for delivery to a wireless 
device, discussed below in the context of SMS messaging, are examples 
of messages delivered to wireless devices using such push technologies. 
We believe that the definition of a MSCM should include all messages 
transmitted to an electronic mail address provided by a CMRS provider 
for delivery to the addressee subscriber's wireless device irrespective 
of the transmission technique. We seek comment on this interpretation 
and alternatives.
    The legislative history of the Act suggests section 14, in 
conjunction with the Telephone Consumer Protection Act (TCPA), was 
intended to address wireless text messaging. SMS messages are text 
messages directed to wireless devices through the use of the telephone 
number assigned to the device. When SMS messages are sent between 
wireless devices, the messages generally do not traverse the Internet 
and therefore do not include a reference to an Internet domain. 
However, a message initially may be sent through the Internet as an 
electronic mail message, and then converted by the service provider 
into an SMS message associated with a telephone number. We seek comment 
on whether the definition of an MSCM should include messages using such 
technology and similar methods, and specifically whether it should 
include either or both of these types of SMS messages described above. 
We note here that the TCPA and Commission rules prohibit calls using 
autodialers to send certain voice calls and text calls, including SMS 
messages, to wireless numbers.
    Forwarding. The manner in which recipients of MSCMs utilize 
messaging options may also be relevant to our interpretation of the 
definition of MSCM. For example, another way for a commercial mobile 
service subscriber to obtain electronic mail messages is for that 
subscriber to take steps to have messages forwarded from a server to 
the subscriber's wireless device. With this type of electronic mail 
transmission, a subscriber can, for example, obtain messages initially 
sent to an electronic mail account that is normally accessed by a 
personal computer. We do not believe that section 14 was intended to 
apply to all such messages. First, defining the scope of section 14 to 
include all ``forwarded'' messages could result in our rules applying 
to virtually all electronic mail covered by the CAN-SPAM Act because 
subscribers can forward most electronic mail to their wireless devices. 
We do not believe that Congress intended such a result given that it 
would duplicate in large measure the FTC's authority under the Act. 
Moreover, the legislative history of the Act suggests that section 14 
was not intended to address messages ``forwarded'' in this manner. 
Congressman Markey, in support of section 14, stated: ``Spam sent to a 
desktop computer e-mail address, and which is then forwarded over to a 
wireless network to a wireless device, i.e., delivered `indirectly' 
from the initiator to the wireless device, would be treated by the rest 
of this bill and not by the additional section 14 wireless-specific 
provisions we subject to an FCC rulemaking.'' We seek comment on the 
view that such transmissions fall outside the category of those 
``transmitted directly to a wireless device.'' Commenters should 
address our assumption that a broad interpretation of ``transmitted 
directly to a wireless device'' to cover ``forwarded'' electronic mail 
messages would expand the scope of section 14 to cover all electronic 
mail covered by the CAN-SPAM Act in general.
    Section 14 requires that the FCC ``consider the ability of a sender 
of a commercial electronic mail message to reasonably determine that 
the message is a mobile service commercial message.'' We seek comment 
on how a sender would know that it was sending an MSCM if any action by 
a recipient to retrieve his messages by a wireless device could convert 
a non-MSCM into an MSCM, or vice-versa. We seek comment on the 
technical and administrative characteristics relevant to distinguishing 
forwarded messages as well as other messages.

B. The Ability To Avoid Receiving MSCMs

1. How To Enable Consumers To Avoid Unwanted MSCMs
    We seek comment on ways in which we can implement Congress's 
directive to protect consumers from ``unwanted mobile service 
commercial messages.'' As explained above, section 14(b)(1) of the CAN-
SPAM Act states that the Commission shall adopt rules to provide 
subscribers with the ``ability to avoid receiving [MSCMs] unless the 
subscriber has provided express prior authorization to the sender.'' 
The legislative history of the Act suggests that section 14 was 
included so that wireless subscribers would have greater protections 
from commercial electronic mail messages than those protections 
provided elsewhere in the Act. As explained below, we believe that 
section 14(b)(1) is intended to provide consumers the opportunity to 
generally bar receipt of all MSCMs (except those from senders who have 
obtained the consumer's prior express consent). However, we believe 
that in order to do so, the consumer must take affirmative action to 
bar the MSCMs in the first

[[Page 16877]]

instance. Although it appears that Congress intended to afford wireless 
subscribers greater protection from unwanted commercial electronic mail 
messages than those protections provided elsewhere in the Act, it is 
not clear that Congress necessarily sought to impose a flat prohibition 
against such messages in the first instance. However, as set forth 
below, we seek comment on both of these different interpretations of 
section 14(b)(1).
    The language of the CAN-SPAM Act requires the Commission to 
``protect consumers from unwanted mobile service commercial messages.'' 
The protections extend to unwanted MSCMs from senders who may ignore 
the provisions of the CAN-SPAM Act. As a practical matter, the 
particular protections for wireless subscribers required by the Act may 
require comprehensive solutions. Therefore, in addition to those 
considerations directed by the CAN-SPAM Act discussed below, we seek 
comment generally on technical mechanisms that could be made available 
to wireless subscribers so that they may voluntarily, and at the 
subscriber's discretion, protect themselves against unwanted mobile 
service commercial messages. We seek comment on means by which wireless 
providers might protect consumers from MSCMs transmitted by senders who 
may willfully violate the wireless provisions of the CAN-SPAM Act 
addressed in this proceeding. We seek comment on how, in particular, 
small businesses would be affected by the various proposals we 
consider.
    We are aware that a number of other countries have taken a variety 
of technical and regulatory steps to protect their consumers from 
unwanted electronic mail messages in general. In doing so, some 
countries such as Japan and South Korea have adopted an opt-out 
approach; while others such as the United Kingdom, France, and Germany 
had adopted an opt-in approach. Still others have a mixed approach. 
Also, different countries have taken a variety of positions on whether 
labeling and identification of commercial messages is required, whether 
a Do-Not-E-Mail registry can be developed, and whether the use of 
``spamware'' is prohibited. We seek comment on any of these approaches, 
consistent with section 14, applicable to unwanted mobile service 
commercial messages, with particular emphasis on their effectiveness, 
associated costs and burdens, if any, on carriers, subscribers or other 
relevant entities. Commenters should not only focus on the present, but 
also on the foreseeable future.
    a. Prohibiting the Sending of MSCMs. Section 14(b)(1) states that 
the Commission's rules shall ``provide subscribers to commercial mobile 
services the ability to avoid receiving mobile service commercial 
messages unless the subscriber has provided express prior authorization 
to the sender.'' One possible interpretation of this provision is that 
Congress intended to prohibit all senders of commercial electronic mail 
from sending MSCMs unless the senders first obtain express 
authorization from the recipient. This reading would allow the 
subscriber to avoid all MSCMs unless the subscriber acts affirmatively 
to give express permission for messages from individual senders.
    Another interpretation of this provision is that Congress intended 
the subscriber to take affirmative steps to avoid receiving MSCMs to 
indicate his or her desire not to receive such messages. For example, 
under this interpretation, the customer might, at the time he or she 
subscribes to the mobile service, affirmatively decline to receive 
MSCMs. The subscriber would still have the option to agree to accept 
MSCMs from particular senders. We invite comment on both 
interpretations, particularly in light of the technological abilities 
and any constitutional concerns.
    We also ask for comment on the practical aspects of either 
interpretation of this provision, given potential problems senders 
might have currently in determining whether the message sent is an 
MSCM. Commenters should address enforcement and administrative concerns 
associated with any Commission action taken to protect subscribers from 
unwanted MSCMs. We also ask whether the mechanisms described below 
might help alleviate those problems. In addition, we ask for comment on 
the effect either interpretation might have upon small businesses.
    We seek comment on whether senders at this time have the practical 
ability to ``reasonably determine'' whether an electronic mail message 
is sent directly to a wireless device or elsewhere. Some MSM subscriber 
addresses might be identifiable if they use a phone number in front of 
a reference to an Internet domain of a recognizable wireless carrier. 
For example, ``2024189999@[wireless company].com'' would be such an 
address. However, we understand that other MSM subscriber addresses do 
not have such easily distinguishable addresses, such as 
``nickname@[wireless company].com.'' Moreover, as technology evolves, 
the options available for accessing and reading electronic mail 
messages from mobile devices will only expand. Therefore, as required 
by the Act, we must ``consider the ability of a sender'' of a 
commercial message to ``reasonably determine'' that the message is an 
MSCM.
    There appear to be a variety of mechanisms that, if implemented, 
could allow a sender to reasonably determine that a message is being 
sent to an MSM subscriber. We seek comment on the efficacy and cost 
considerations of each of the specific mechanisms identified below, as 
well as any reasonable alternatives, whether they are offered at the 
network level by service providers, at the device level by 
manufacturers, or even by other mechanisms involving subscribers 
themselves. We especially seek comment from small businesses on these 
issues. If wireless providers are to follow direction from subscribers 
as to which senders' messages should be blocked or allowed to pass 
through any filter, we seek comment on whether such information about 
the subscribers' choices is adequately protected. We seek comment on 
whether other protections are needed and what they might be.
    In this section we focus on possible mechanisms to enable senders 
to recognize MSMs by the recipient's electronic mail message address, 
specifically the Internet domain address portion.
    List of MSM domain names. We seek comment on whether we should 
establish a list of all domain names that are used exclusively for MSM 
subscribers, to allow senders to identify the electronic mail addresses 
that belong to MSM subscribers. We note that this list would not 
include unique user names or mailboxes--rather, it would solely be a 
registry of a small number of mail domains to allow senders to identify 
whether any messages they were planning to send would in fact be MSCMs. 
If an MSM provider were to use a portion of their domain exclusively 
for MSMs, the list would include the portion of its domain devoted to 
that purpose. In that case, we believe that a sender could consult such 
a list to reasonably determine if a message was addressed to a mobile 
service subscriber. We seek comment on whether it is industry practice 
for providers to employ subdomains that are exclusively used to serve 
their MSM subscribers that distinguish such customers from other 
customers. For example, if a company offers both MSM and non-MSM 
services, does it assign subscribers to those different services the 
same or different domain names for their addresses? If not, we seek

[[Page 16878]]

comment on whether we should require MSM providers to do so. We seek 
comment on whether using exclusive subdomain names should be required 
for all MSM service, or whether we should require carriers to offer 
subscribers the option of using such a name.
    In connection with this approach, we seek comment on whether we 
should establish such a list and prohibit the sending of commercial 
electronic mail messages to domains on that list as violations of the 
Act. We seek comment on what steps the Commission may take to encourage 
or require the use of domain name oriented solutions by entities 
subject to our jurisdiction. Further, we seek comment on what steps the 
Commission could take to facilitate these solutions through interaction 
with industry and other entities not directly regulated by the 
Commission. We seek comment on any practical, enforceability, cost or 
other concerns related to establishing such a list. We seek comment on 
how it might be established, maintained, accessed and updated. We seek 
comment regarding any burdens on small business owners who advertise 
using electronic mail to check such a list in order to comply with the 
Act.
    Registry of individual subscriber addresses. We seek comment on 
whether we should establish a limited national registry containing 
individual electronic mail addresses, similar to the national ``do-not-
call'' registry. The FTC is tasked with reviewing how a nationwide 
marketing ``Do-Not-E-Mail'' registry might offer protection for those 
consumers who choose to join. Would a similar registry just for MSM 
addresses be consistent with the Act in general and with the greater 
protections provided in section 14(b)(1) for MSM subscribers? If the 
FTC implements a registry, how would ours differ? We seek comment on 
any practical, technical, security, privacy, enforceability, and cost 
concerns related to establishing such a registry. In particular, we 
seek comment on how it might be established, maintained, accessed and 
updated. We seek information about the volume of addresses potentially 
included in such a registry, how MSM providers could verify that 
submitted addresses were only for MSM service, and how such a registry 
might be funded. In particular, could the confidentiality of MSM 
subscriber electronic mail addresses be adequately protected if 
maintained on a widely-accessible list? We seek comment on the burdens 
on small businesses to participate in such a registry. We seek comment 
on whether the establishment of a registry of electronic mail addresses 
could result in more, rather than less, unwanted electronic mail 
messages being sent to those addresses.
    MSM-only domain name. We seek comment on whether it would be 
possible and useful to require the use of specific top-level and 
second-level domains, which form the last two portions of the Internet 
domain address. For example, could we allow carriers to use a top-level 
domain, particularly the ``.us'' country-code top-level domain, and 
require that to be preceded by a standard second-level domain (such as 
``'' for mobile message service)? Under such 
an approach, MSM providers wireless company ABC and wireless company 
XYZ would gradually transition the domain parts of their subscribers' 
electronic mail addresses to ``@[wireless company ABC]..us'' and ``@[wireless company XYZ]..us'' respectively. Could carriers or other parties 
subject to the Commission's jurisdiction implement such solutions 
independently, or would such approaches require cooperation of entities 
not generally under our jurisdiction? We seek comment on the burdens on 
small businesses to use such domain names.
    Common MSM subdomain names. We seek comment on whether we should 
require one portion of the domain to follow a standard naming 
convention to be used for all MSM service, or whether each carrier 
could choose its own naming convention within its own domains, as long 
as it was only used for such service. We note that one apparently 
significant difficulty with this approach is that entities that do not 
provide MSM service might also adopt such names. Thus, the sender might 
not be able to distinguish those addresses to which sending an MSCM was 
prohibited from some other addresses to which it is not prohibited. We 
seek comment on these and any other domain name-based approaches, their 
respective merits, and their practicality. In addition, we seek comment 
as to the effect a domain-name based approach will have on small 
communications carriers and whether there are less burdensome 
alternatives for such businesses.
    b. Challenge and Response Mechanisms. As an alternative, we seek 
comment on whether we should require wireless providers to adopt 
mechanisms that would offer what is known as a ``challenge-response'' 
system. A challenge-response mechanism sends back a challenge that 
requires a response verifying some aspect of the message. It is our 
understanding that technical mechanisms exist that could automatically 
hold a message and send a response to the sender to let the sender know 
the message was addressed to an MSM subscriber. For example, such 
technology might either ask for confirmation from the sender before 
forwarding the message to the intended recipient, or just return the 
first message from a sender with a standard response noting that the 
intended recipient was an MSM subscriber. Data suggests that this 
``challenge-response'' approach is available in countering unwanted 
electronic mail, and a number of variants are possible. We seek comment 
on such mechanisms and alternatives. Is it reasonable to expect the 
sender to note the addressee's status and refrain from sending future 
messages to that address unless the sender has prior express 
authorization? Could mechanisms notifying the sender after he has sent 
an MSCM serve as an alternative or supplement to other mechanisms for 
enabling the sender to identify MSM subscriber addresses before an MSCM 
is sent? Would this practice be less burdensome to small businesses 
than alternative proposals? Would a challenge-response mechanism 
designed to filter out commercial electronic mail present an 
inappropriate impediment to non-commercial messages?
    c. Commercial Message Identification. We note that, in order to 
make any blocking or filtering mechanisms respond only to commercial 
messages, rather than to all messages, commercial messages would first 
need to be identified. We seek comment on the best methods that could 
be used by an MSM provider to identify such messages as commercial, if 
such methods are needed to make a filtering system effective. For 
example, would it be useful to use characters at the start of the 
subject line, or other methods? We seek comment on methods for 
``tagging'' such messages so that they are identifiable as commercial 
messages. In addition, we ask about the practicality of having an MSM 
provider automatically request a response from the sender's server for 
any MSCMs identified by unique characters in the subject line labeling. 
We seek comment on this and other similar approaches and their 
respective merits and practicality. We seek comment on specific 
alternative approaches.
    By itself, a prohibition against anyone sending MSCMs without prior 
express permission would place the burden on the sender to ensure that 
it is not sending its messages to MSM addresses. We seek comment 
therefore on whether

[[Page 16879]]

it would be necessary or useful to consider the option of ``tagging'' 
commercial messages to identify them. We seek comment on this issue and 
on our authority to require such tagging on all commercial electronic 
mail. We note that the Act requires the FTC to tender a report to 
Congress outlining a plan to address the labeling of commercial 
electronic mail messages in general. We are especially interested in 
the comments of small businesses about this alternative. Is it less 
burdensome than other alternatives?
2. Express Prior Authorization
    Congress directed the FCC to adopt rules to provide consumers with 
the ability to avoid receiving MSCMs, unless the subscriber has 
provided express prior authorization to the sender. We seek comment on 
the form and content of such ``express prior authorization.'' We seek 
comment on whether it should be required to be in writing, and how any 
such requirement could be met electronically. We note that certain 
other requirements of the Act do not apply if the sender has obtained 
the subscriber's ``affirmative consent.'' As defined in the Act, 
``affirmative consent'' means: (1) That the recipient expressly 
consented either in response to a clear and conspicuous request for 
such consent, or at the recipient's own initiative; and (2) in cases 
when the message is from a party other than the party which received 
consent, that the recipient was given clear and conspicuous notice at 
the time of consent that the electronic mail address could be 
transferred for the purpose of initiating commercial e-mail messages. 
We seek comment on whether the definition of ``affirmative consent'' 
would also be suited to use in defining ``express prior 
authorization.''
    We seek comment on whether any additional requirements are needed 
and the technical mechanisms that a subscriber could use to give 
express prior authorization. For example, should there be a notice to 
the recipient about the possibility that costs could be incurred in 
receiving any message? What technical constraints imposed by the unique 
limitations of wireless devices are relevant in considering the form 
and content of express prior authorization. We seek comment on ways to 
ease the burdens on both consumers and businesses, especially small 
businesses, of obtaining ``express prior authorization'' while 
maintaining the protections intended by Congress.
3. Electronically Rejecting Future MSCMs
    Section 14(b)(2) specifically requires that we develop rules that 
``allow recipients of MSCMs to indicate electronically a desire not to 
receive future MSCMs from the sender.'' We seek comment on whether 
there are any technical options that might be used, such as a code that 
could be entered by the subscriber on her wireless device to indicate 
her withdrawal of permission to receive messages. For example, could an 
interface be accessed over the Internet (not necessarily through the 
wireless device) so that a user would access his or her account and 
modify the senders' addresses for which messages would be blocked or 
allowed through? We seek comment on whether carriers, especially small 
carriers, already have systems in place to allow subscribers to block 
messages from a sender upon request of a subscriber. We also seek 
comment on whether a challenge-and-response system, as discussed above, 
could be used to accomplish this goal. A challenge-response mechanism 
sends back a challenge that requires a response verifying some aspect 
of the message. In addition to the challenge-response systems, could an 
MSM subscriber select a ``secret code'' or other personal identifier 
that a subscriber could distribute selectively to entities who she 
wanted to be able to send MSCMs to her? Could such an approach enable a 
carrier to filter out all commercial messages that do not include that 
``secret code'' or personal identifier? We seek comment on whether 
there is some mechanism using the customer's wireless equipment, rather 
than the network, that could be used by a subscriber to screen out 
future MSCMs. We seek comment on these and any other methods that would 
allow the recipient of MSCMs to indicate electronically a desire not to 
receive future MSCMs from the sender. We especially seek comment from 
small businesses that might be affected by such a requirement. Further 
we seek comment on whether it would be appropriate to require or allow 
senders of MSCMs to give subscribers the option of going to an Internet 
Web site address provided by the sender to indicate their desire not to 
receive future MSCMs from the sender. Additionally, we seek comment on 
whether there are additional considerations needed for MSCMs sent to 
subscribers who are roaming on the network, given, for example, that 
different networks may have different technological capabilities.
4. Exemption for Providers of Commercial Mobile Services
    Section 14(b)(3) requires the Commission to take into consideration 
whether to subject providers of commercial mobile services to paragraph 
(1) of the Act. As a result, the Commission may exempt CMRS providers 
from the requirement to obtain express prior authorization from their 
current customers before sending them any MSCM. In making any such 
determination, the Commission must consider the relationship that 
exists between CMRS providers and their subscribers.
    We seek comment on whether there is a need for such an exemption 
and how it would impact consumers. As discussed above, the Act already 
excludes certain ``transactional and relationship'' messages from the 
definition of unsolicited commercial electronic mail. These 
transactional and relationship messages include those sent regarding 
product safety or security information, notification to facilitate a 
commercial transaction, and notification about changes in terms, 
features, or the customer's status. We seek comment then on whether 
there is a need for a separate exemption for CMRS providers from the 
section 14 ``express prior permission'' requirement. In particular, we 
seek specific examples of messages, if any, that CMRS providers send to 
their customers that are not already excluded under the Act in general. 
Should any exemptions for carriers be limited to only those messages 
sent by CMRS carriers regarding their own service? What would be the 
impact of any such exemption on small businesses?
    If the Commission opts to exempt CMRS carriers from obtaining prior 
express authorization, Congress has required that such providers, in 
addition to complying with other provisions of the Act, must allow 
subscribers to indicate a desire to receive no future MSCMs from the 
provider: (1) At the time of subscribing to such service and (2) in any 
billing mechanism. We seek comment on how we might implement those 
requirements, if we provide an exemption. Finally, we seek comment 
regarding whether small wireless service providers should be treated 
differently with respect to any of these issues, and if so, how.

C. Senders of MSCMs and the CAN-SPAM Act in General

    Section 14(b)(4) of the Act requires the Commission to determine 
how a sender of an MSCM may comply with

[[Page 16880]]

the provisions of the CAN-SPAM Act in general, considering the ``unique 
technical aspects, including the functional and character limitations, 
of devices that receive such messages.'' If a sender is not prohibited 
from sending MSCMs to an address, either because the subscriber has not 
used his ability to stop such messages or because the sender has 
received ``express prior authorization,'' then the message must still 
comply with the Act in general. Therefore, we ask for comment on 
specific compliance issues that senders of MSCM might have with other 
sections of the Act.
    We believe that a large segment of MSM subscribers who receive and 
send text-based messages on their wireless devices today do so on 
digital cellular phones that are designed principally for voice 
communications and that provide limited electronic mail message 
functionality. Currently, text messages are often limited to a maximum 
message length of ranging from 120 to 500 characters. Some MSM 
providers limit the length of messages allowed on their systems to 
approximately 160 characters. As a result, it might be difficult for 
senders to supply information required by the CAN-SPAM Act (such as 
header information and required identifier, material on how to request 
no more messages, and postal address), because that content might be 
limited in length or might not be readily displayable. Consequently, 
there might be some technical difficulties in ensuring that electronic 
mail content is provided to subscribers in compliance with the 
requirements of the Act. We seek comment on these issues, particularly 
as they affect small wireless providers and other small businesses. We 
ask for comment on whether any such issues will be mitigated in the 
near future with advances in technology. For example, we understand 
that some commercial mobile service subscribers may already supplement 
the limited text handling functionality with ancillary personal 
computer technology. We seek comment on this and any other possible 
technical considerations for senders of MSCMs that must comply with the 
Act.

II. TCPA

A. Safe Harbor for Calls to Wireless Numbers

    We now seek additional comment on the ability of telemarketers, 
especially small businesses, to comply with the TCPA's prohibition on 
calls to wireless numbers since implementation of intermodal Local 
Number Portability (LNP). We specifically seek comment on whether the 
Commission should adopt a limited safe harbor for autodialed and 
prerecorded message calls to wireless numbers that were recently ported 
from a wireline service to a wireless service provider.
    The Direct Marketing Association (DMA) indicates that it is in the 
process of creating a ported number database. It contends, however, 
that this solution will not allow marketers to update their call lists 
instantaneously when consumers port their wireline numbers. The DMA 
argues that, even with a direct link to Neustar's database of wireless 
service numbers that have recently been ported from wireline service, 
there will be time lags throughout the process, during which a consumer 
who has just ported a wireline number to wireless service could receive 
a call from a marketer.
    As the Commission stated in the 2003 TCPA Order, the TCPA rules 
prohibiting telemarketers from placing autodialed and prerecorded 
message calls to wireless numbers have been in place for 12 years and 
the Commission's porting requirements have been in place for over five 
years. Telemarketers have received sufficient notice of these 
requirements in order to develop business practices that will allow 
them to continue to comply with the TCPA. The record continues to 
demonstrate that information is currently available to assist 
telemarketers in determining which numbers are assigned to wireless 
carriers. Nevertheless, we recognize that once a number is ported to a 
wireless service, a telemarketer may not have access to that 
information immediately in order to avoid calling the new wireless 
number.
    We seek comment on the narrow issue of whether the Commission 
should adopt a limited safe harbor during which a telemarketer will not 
be liable for violating the rule prohibiting autodialed and prerecorded 
message calls to wireless numbers once a number is ported from wireline 
to wireless service. If so, we seek comment on the appropriate safe 
harbor period given both the technical limitations on telemarketers and 
the significant privacy and safety concerns regarding calls to wireless 
subscribers. For example, would a period of up to seven days be a 
reasonable amount of time for telemarketers to obtain data on recently 
ported numbers and to scrub their call lists of those numbers? Or, as 
the DMA has requested, should any safe harbor the Commission adopt 
provide telemarketers with up to 30 days to do so? Are there other 
options in the marketplace available to telemarketers that should 
affect whether we adopt a limited safe harbor as well as the duration 
of any such safe harbor? We also seek comment on whether any safe 
harbor period adopted should sunset in the future and, if so, when. In 
addition, we seek comments from small businesses which engage in 
telemarketing about the appropriateness of such a limited safe harbor 
and its parameters.

B. National Do-Not-Call Registry and Monthly Updates by Telemarketers

    We seek comment on whether we should amend our safe harbor 
provision to mirror any amendment made by the FTC to its safe harbor. 
The Appropriations Act does not require the FCC to amend its rules. 
However, in the Do-Not-Call Implementation Act (Do-Not-Call Act), 
Congress directed the FCC to consult and coordinate with the FTC to 
``maximize consistency'' with the rules promulgated by the FTC. In 
addition, we note that, absent action to amend our safe harbor, many 
telemarketers will face inconsistent standards because the FTC's 
jurisdiction extends only to certain entities, while our jurisdiction 
extends to all telemarketers.
    Therefore, in an effort to remain consistent with the FTC's rules, 
we propose amending our safe harbor to require sellers and 
telemarketers acting on behalf of sellers to use a version of the 
national do-not-call registry obtained from the administrator of the 
registry no more than 30 days prior to the date any call is made. We 
seek comment on how amending our safe harbor provision, or failing to 
do so, would affect telemarketers' ability to comply with the 
Commission's do-not-call rules. What problems will telemarketers, 
including small businesses, face in ``scrubbing'' their call lists 
every 30 days that they do not experience under the current rules? Are 
there any reasons the Commission should not amend its rules to be 
consistent with the FTC?

Initial Regulatory Flexibility Analysis (IRFA)

    As required by the Regulatory Flexibility Act (RFA), 5 U.S.C. 603 
et seq., the Commission has prepared this Initial Regulatory 
Flexibility Analysis (IRFA) of the possible significant economic impact 
on small entities by the policies and rules proposed in this NPRM. See 
5 U.S.C. 603. A substantial number of small entities might be affected 
by our action. Written public comments are requested on this IRFA. 
Comments must be identified as responses to the IRFA and must be filed 
by the deadlines for comments on the NPRM or FNPRM, as applicable. The

[[Page 16881]]

Commission will send a copy of the NPRM and FNPRM, including this IRFA, 
to the Chief Counsel for Advocacy of the Small Business Administration. 
See 5 U.S.C. 603(a).

Need for, and Objectives of, the Proposed Rules

    On December 8, 2003, Congress passed the Controlling the Assault of 
Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM Act) to 
address the growing number of unwanted commercial electronic mail 
messages, which Congress determined to be costly, inconvenient, and 
often fraudulent or deceptive. Congress found that recipients ``who 
cannot refuse to accept such mail'' may incur costs for storage, and 
``time spent accessing, reviewing, and discarding such mail.'' The CAN-
SPAM Act prohibits any person from transmitting such messages that are 
false or misleading and gives recipients the right to decline to 
receive additional messages from the same source. Certain agencies, 
including the Commission, are charged with enforcement of the CAN-SPAM 
Act.
    Section 14 of the CAN-SPAM Act requires the Commission to (1) 
promulgate rules to protect consumers from unwanted mobile service 
commercial messages, and (2) in doing so consider the ability of 
senders to determine whether a message is a mobile commercial 
electronic mail message. In addition, the Commission shall consider the 
ability of senders of mobile service commercial messages to comply with 
the CAN-SPAM Act in general. Furthermore, the CAN-SPAM Act requires the 
Commission to consider the relationship that exists between providers 
of such services and their subscribers.
    The Telephone Consumer Protection Act (TCPA) was enacted to address 
certain telemarketing practices, including calls to wireless telephone 
numbers, which Congress found to be an invasion of consumer privacy and 
even a risk to public safety. The TCPA specifically prohibits calls 
using an autodialer or artificial or prerecorded message ``to any 
telephone number assigned to a paging service, cellular telephone 
service, specialized mobile radio service, or other common carrier 
service, or any service for which the called party is charged.'' In 
addition, the TCPA required the Commission to ``initiate a rulemaking 
proceeding concerning the need to protect residential telephone 
subscribers' privacy rights'' and to consider several methods to 
accommodate telephone subscribers who do not wish to receive 
unsolicited advertisements.
    In 2003, the Commission released a Report and Order (2003 TCPA 
Order) revising the TCPA rules to respond to changes in the marketplace 
for telemarketing. Specifically, we established in conjunction with the 
Federal Trade Commission (FTC) a national do-not-call registry for 
consumers who wish to avoid unwanted telemarketing calls. The national 
do-not-call registry supplements long-standing company-specific rules 
which require companies to maintain lists of consumers who have 
directed the company not to contact them. In addition, we determined 
that the TCPA prohibits any call using an automatic telephone dialing 
system or an artificial or prerecorded message to any wireless 
telephone number. We concluded that this encompasses both voice calls 
and text calls to wireless numbers including, for example, Short 
Message Service calls. We acknowledged that, beginning in November of 
2003, numbers previously used for wireline service could be ported to 
wireless service providers and that telemarketers will need to take the 
steps necessary to identify these numbers. Intermodal local number 
portability (LNP) went into effect November, 2003.
    The 2003 TCPA Order required that telemarketers use the national 
do-not-call registry maintained by the FTC to identify consumers who 
have requested not to receive telemarketing calls. Currently, in order 
to avail themselves of the safe harbor for telemarketers, a 
telemarketer is required to update or ``scrub'' its call list against 
the national do-not-call registry every 90 days. Recently the FTC 
released a Notice of Proposed Rulemaking proposing to amend its safe-
harbor provision and require telemarketers to update their call lists 
every 30 days. This Notice proposes to modify the Commission's rules to 
parallel any changes to the FTC's rules. With this amendment, all 
telemarketers would be required to scrub their lists against the 
national do-not-call registry every 30 days in order to avail 
themselves of that safe harbor.

Issues Raised in Notice

    This Notice addresses three policy and rule modifications. First, 
it initiates a proceeding to implement the CAN-SPAM Act by enacting 
regulations to protect consumers from unwanted mobile service 
commercial messages. Second, under the TCPA we are exploring the need 
for a safe harbor for telemarketers who call telephone numbers that 
have been recently ported from wireline to wireless service. Third, we 
propose a change to the existing telemarketing safe-harbor provision 
which would require telemarketers to access the do-not-call registry 
every 30 days.

Legal Basis

    The proposed action is authorized under Sections 1-4, 227, and 
303(r) of the Communications Act of 1934, as amended; the Controlling 
the Assault of Non-Solicited Pornography and Marketing Act of 2003, 
Public Law Number 108-187, 117 Statute 2699; and the Do-Not-Call 
Implementation Act, Public Law Number 108-10, 117 Statute 557.

Description and Estimate of the Number of Small Entities to Which the 
Proposed Rule Will Apply

    The RFA directs agencies to provide a description of, and where 
feasible, an estimate of the number of small entities that may be 
affected by the proposed rules and policies, if adopted. The RFA 
generally defines the term ``small entity'' as having the same meaning 
as the terms ``small business,'' ``small organization,'' and ``small 
governmental jurisdiction.'' In addition, the term ``small business'' 
has the same meaning as the term ``small business concern'' under the 
Small Business Act. A ``small business concern'' is one which: (1) Is 
independently owned and operated; (2) is not dominant in its field of 
operation; and (3) satisfies any additional criteria established by the 
SBA.
    The regulations and policies proposed in this item on telephone 
solicitation and the prohibitions of sending electronic commercial mail 
messages apply to a wide range of entities, including all entities that 
use the telephone or electronic messaging to advertise. That is, our 
actions affect the myriad of businesses throughout the nation that use 
telemarketing or electronic messaging to advertise. We have attempted 
to identify, with as much specificity as possible, all business 
entities that potentially may be affected by the policies and rules 
proposed herein, but are not expanding in this analysis the scope of 
entities possibly subject to requirements adopted in this proceeding 
beyond the scope described in the Notice itself. In order to assure 
that we have covered all possible entities we have included general 
categories, such as Wireless Service Providers and Wireless 
Communications Equipment Manufacturers, while also including more 
specific categories, such as Cellular Licensees and Common Carrier 
Paging. Similarly, for completeness, we have also included descriptions 
of small entities in various categories, such as 700 MHz Guard Band 
Licenses, who

[[Page 16882]]

may potentially be affected by this proceeding but who would not be 
subject to regulation simply because of their membership in that 
category.
    Sometimes when identifying small entities we provide information 
describing auctions' results, including the number of small entities 
that were winning bidders. We note, however, that the number of winning 
bidders that qualify as small businesses at the close of an auction 
does not necessarily reflect the total number of small entities 
currently in a particular service. The Commission does not generally 
require that applicants provide business size information, nor does the 
Commission track subsequent business size, except in the context of an 
assignment or transfer of control application where unjust enrichment 
issues are implicated. Consequently, to assist the Commission in 
analyzing the total number of potentially affected small entities, we 
request that commenters estimate the number of small entities that may 
be affected by any changes.
    Small Businesses. Nationwide, there are a total of 22.4 million 
small businesses, according to SBA data.
    Telemarketers. SBA has determined that ``telemarketing bureaus'' 
with $6 million or less in annual receipts qualify as small businesses. 
For 1997, there were 1,727 firms in the ``telemarketing bureau'' 
category, total, which operated for the entire year. Of this total, 
1,536 reported annual receipts of less than $5 million, and an 
additional 77 reported receipts of $5 million to $9,999,999. Therefore, 
the majority of such firms can be considered to be small businesses.
    Wireless Service Providers. The SBA has developed a small business 
size standard for wireless firms within the two broad economic census 
categories of ``Paging'' and ``Cellular and Other Wireless 
Telecommunications.'' Under both SBA categories, a wireless business is 
small if it has 1,500 or fewer employees. For the census category of 
Paging, Census Bureau data for 1997 show that there were 1,320 firms in 
this category, total, that operated for the entire year. Of this total, 
1,303 firms had employment of 999 or fewer employees, and an additional 
17 firms had employment of 1,000 employees or more. Thus, under this 
category and associated small business size standard, the great 
majority of firms can be considered small. For the census category 
Cellular and Other Wireless Telecommunications, Census Bureau data for 
1997 show that there were 977 firms in this category, total, that 
operated for the entire year. Of this total, 965 firms had employment 
of 999 or fewer employees, and an additional 12 firms had employment of 
1,000 employees or more. Thus, under this second category and size 
standard, the great majority of firms can, again, be considered small.
    Internet Service Providers. The SBA has developed a small business 
size standard for Internet Service Providers. This category comprises 
establishments ``primarily engaged in providing direct access through 
telecommunications networks to computer-held information compiled or 
published by others.'' Under the SBA size standard, such a business is 
small if it has average annual receipts of $21 million or less. 
According to Census Bureau data for 1997, there were 2,751 firms in 
this category that operated for the entire year. Of these, 2,659 firms 
had annual receipts of under $10 million, and an additional 67 firms 
had receipts of between $10 million and $24,999,999. Thus, under this 
size standard, the great majority of firms can be considered small 
entities.
    Wireless Communications Equipment Manufacturers. The Commission has 
not developed special small business size standards for entities that 
manufacture radio, television, and wireless communications equipment. 
Therefore, the applicable small business size standard is the 
definition under the SBA rules applicable to ``Radio and Television 
Broadcasting and Wireless Communications Equipment Manufacturing.'' 
Examples of products that fall under this category include 
``transmitting and receiving antennas, cable television equipment, GPS 
equipment, pagers, cellular phones, mobile communications equipment, 
and radio and television studio and broadcasting equipment'' and may 
include other devices that transmit and receive Internet Protocol 
enabled services, such as personal digital assistants. Under that 
standard, firms are considered small if they have 750 or fewer 
employees. Census Bureau data for 1997 indicate that, for that year, 
there were a total of 1,215 establishments in this category. Of those, 
there were 1,150 that had employment under 500, and an additional 37 
that had employment of 500 to 999. The percentage of wireless equipment 
manufacturers in this category is approximately 61.35%, so the 
Commission estimates that the number of wireless equipment 
manufacturers with employment under 500 was actually closer to 706, 
with an additional 23 establishments having employment of between 500 
and 999. Given the above, the Commission estimates that the great 
majority of wireless communications equipment manufacturers are small 
businesses.
    Radio Frequency Equipment Manufacturers. The Commission has not 
developed a special small business size standard applicable to Radio 
Frequency Equipment Manufacturers. Therefore, the applicable small 
business size standard is the definition under the SBA rules applicable 
to ``Radio and Television Broadcasting and Wireless Communications 
Equipment Manufacturing.'' Under that standard, firms are considered 
small if they have 750 or fewer employees. Census Bureau data for 1997 
indicate that, for that year, there were a total of 1,215 
establishments in this category. Of those, there were 1,150 that had 
employment under 500, and an additional 37 that had employment of 500 
to 999. Thus, under this size standard, the majority of establishments 
can be considered small entities.
    Paging Equipment Manufacturers. The Commission has not developed a 
special small business size standard applicable to Paging Equipment 
Manufacturers. Therefore, the applicable small business size standard 
is the definition under the SBA rules applicable to ``Radio and 
Television Broadcasting and Wireless Communications Equipment 
Manufacturing.'' Under that standard, firms are considered small if 
they have 750 or fewer employees. Census Bureau data for 1997 indicate 
that, for that year, there were a total of 1,215 establishments in this 
category. Of those, there were 1,150 that had employment under 500, and 
an additional 37 that had employment of 500 to 999. Thus, under this 
size standard, the majority of establishments can be considered small 
entities.
    Telephone Equipment Manufacturers. The Commission has not developed 
a special small business size standard applicable to Telephone 
Equipment Manufacturers. Therefore, the applicable small business size 
standard is the definition under the SBA rules applicable to 
``Telephone Apparatus Manufacturing.'' Under that standard, firms are 
considered small if they have 1,000 or fewer employees. Census Bureau 
data indicates that for 1997 there were 598 establishments that 
manufacture telephone equipment. Of those, there were 574 that had 
fewer than 1,000 employees, and an additional 17 that had employment of 
1,000 to 2,499. Thus, under this size standard, the majority of 
establishments can be considered small.
    As noted in paragraph 10, we believe that all small entities 
affected by the policies and proposed rules contained

[[Page 16883]]

in this Notice will fall into one of the large SBA categories described 
above. In an attempt to provide as specific information as possible, 
however, we are providing the following more specific categories.
    Cellular Licensees. The SBA has developed a small business size 
standard for wireless firms within the broad economic census category 
``Cellular and Other Wireless Telecommunications.'' Under this SBA 
category, a wireless business is small if it has 1,500 or fewer 
employees. For the census category Cellular and Other Wireless 
Telecommunications firms, Census Bureau data for 1997 show that there 
were 977 firms in this category, total, that operated for the entire 
year. Of this total, 965 firms had employment of 999 or fewer 
employees, and an additional 12 firms had employment of 1,000 employees 
or more. Thus, under this category and size standard, the great 
majority of firms can be considered small. According to the most recent 
Trends in Telephone Service data, 719 carriers reported that they were 
engaged in the provision of cellular service, personal communications 
service, or specialized mobile radio telephony services, which are 
placed together in the data. We have estimated that 294 of these are 
small, under the SBA small business size standard.
    Common Carrier Paging. The SBA has developed a small business size 
standard for wireless firms within the broad economic census categories 
of ``Cellular and Other Wireless Telecommunications.'' Under this SBA 
category, a wireless business is small if it has 1,500 or fewer 
employees. For the census category of Paging, Census Bureau data for 
1997 show that there were 1,320 firms in this category, total, that 
operated for the entire year. Of this total, 1,303 firms had employment 
of 999 or fewer employees, and an additional 17 firms had employment of 
1,000 employees or more. Thus, under this category and associated small 
business size standard, the great majority of firms can be considered 
small.
    In the Paging Second Report and Order, the Commission adopted a 
size standard for ``small businesses'' for purposes of determining 
their eligibility for special provisions such as bidding credits and 
installment payments. A small business is an entity that, together with 
its affiliates and controlling principals, has average gross revenues 
not exceeding $15 million for the preceding three years. The SBA has 
approved this definition. An auction of Metropolitan Economic Area 
(MEA) licenses commenced on February 24, 2000, and closed on March 2, 
2000. Of the 2,499 licenses auctioned, 985 were sold. Fifty-seven 
companies claiming small business status won 440 licenses. An auction 
of MEA and Economic Area (EA) licenses commenced on October 30, 2001, 
and closed on December 5, 2001. Of the 15,514 licenses auctioned, 5,323 
were sold. One hundred thirty-two companies claiming small business 
status purchased 3,724 licenses. A third auction, consisting of 8,874 
licenses in each of 175 EAs and 1,328 licenses in all but three of the 
51 MEAs commenced on May 13, 2003, and closed on May 28, 2003. Seventy-
seven bidders claiming small or very small business status won 2,093 
licenses. Currently, there are approximately 74,000 Common Carrier 
Paging licenses. According to the most recent Trends in Telephone 
Service, 608 private and common carriers reported that they were 
engaged in the provision of either paging or ``other mobile'' services. 
Of these, we estimate that 589 are small, under the SBA-approved small 
business size standard. We estimate that the majority of common carrier 
paging providers would qualify as small entities under the SBA 
definition.
    Wireless Communications Services. This service can be used for 
fixed, mobile, radiolocation, and digital audio broadcasting satellite 
uses. The Commission defined ``small business'' for the wireless 
communications services (WCS) auction as an entity with average gross 
revenues of $40 million for each of the three preceding years, and a 
``very small business'' as an entity with average gross revenues of $15 
million for each of the three preceding years. The SBA has approved 
these definitions. The Commission auctioned geographic area licenses in 
the WCS service. In the auction, which commenced on April 15, 1997 and 
closed on April 25, 1997, there were seven bidders that won 31 licenses 
that qualified as very small business entities, and one bidder that won 
one license that qualified as a small business entity. An auction for 
one license in the 1670-1674 MHz band commenced on April 30, 2003 and 
closed the same day. One license was awarded. The winning bidder was 
not a small entity.
    Wireless Telephony. Wireless telephony includes cellular, personal 
communications services, and specialized mobile radio telephony 
carriers. The SBA has developed a small business size standard for 
``Cellular and Other Wireless Telecommunications'' services. Under that 
SBA small business size standard, a business is small if it has 1,500 
or fewer employees. According to the most recent Trends in Telephone 
Service data, 719 carriers reported that they were engaged in the 
provision of wireless telephony. We have estimated that 294 of these 
are small under the SBA small business size standard.
    Broadband Personal Communications Service. The broadband personal 
communications services (PCS) spectrum is divided into six frequency 
blocks designated A through F, and the Commission has held auctions for 
each block. The Commission has created a small business size standard 
for Blocks C and F as an entity that has average gross revenues of less 
than $40 million in the three previous calendar years. For Block F, an 
additional small business size standard for ``very small business'' was 
added and is defined as an entity that, together with its affiliates, 
has average gross revenues of not more than $15 million for the 
preceding three calendar years. These small business size standards, in 
the context of broadband PCS auctions, have been approved by the SBA. 
No small businesses within the SBA-approved small business size 
standards bid successfully for licenses in Blocks A and B. There were 
90 winning bidders that qualified as small entities in the Block C 
auctions. A total of 93 ``small'' and ``very small'' business bidders 
won approximately 40 percent of the 1,479 licenses for Blocks D, E, and 
F. On March 23, 1999, the Commission reauctioned 155 C, D, E, and F 
Block licenses; there were 113 small business winning bidders.
    On January 26, 2001, the Commission completed the auction of 422 C 
and F Broadband PCS licenses in Auction No. 35. Of the 35 winning 
bidders in this auction, 29 qualified as ``small'' or ``very small'' 
businesses. Subsequent events, concerning Auction 35, including 
judicial and agency determinations, resulted in a total of 163 C and F 
Block licenses being available for grant.
    Narrowband Personal Communications Services. The Commission held an 
auction for Narrowband PCS licenses that commenced on July 25, 1994, 
and closed on July 29, 1994. A second auction commenced on October 26, 
1994 and closed on November 8, 1994. For purposes of the first two 
Narrowband PCS auctions, ``small businesses'' were entities with 
average gross revenues for the prior three calendar years of $40 
million or less. Through these auctions, the Commission awarded a total 
of 41 licenses, 11 of which were obtained by four small businesses. To 
ensure meaningful participation by small business entities in future 
auctions, the

[[Page 16884]]

Commission adopted a two-tiered small business size standard in the 
Narrowband PCS Second Report and Order. A ``small business'' is an 
entity that, together with affiliates and controlling interests, has 
average gross revenues for the three preceding years of not more than 
$40 million. A ``very small business'' is an entity that, together with 
affiliates and controlling interests, has average gross revenues for 
the three preceding years of not more than $15 million. The SBA has 
approved these small business size standards. A third auction commenced 
on October 3, 2001 and closed on October 16, 2001. Here, five bidders 
won 317 (Metropolitan Trading Areas and nationwide) licenses. Three of 
these claimed status as a small or very small entity and won 311 
licenses.
    Lower 700 MHz Band Licenses. We adopted criteria for defining three 
groups of small businesses for purposes of determining their 
eligibility for special provisions such as bidding credits. We have 
defined a ``small business'' as an entity that, together with its 
affiliates and controlling principals, has average gross revenues not 
exceeding $40 million for the preceding three years. A ``very small 
business'' is defined as an entity that, together with its affiliates 
and controlling principals, has average gross revenues that are not 
more than $15 million for the preceding three years. Additionally, the 
lower 700 MHz Service has a third category of small business status 
that may be claimed for Metropolitan/Rural Service Area (MSA/RSA) 
licenses. The third category is ``entrepreneur,'' which is defined as 
an entity that, together with its affiliates and controlling 
principals, has average gross revenues that are not more than $3 
million for the preceding three years. The SBA has approved these small 
size standards. An auction of 740 licenses (one license in each of the 
734 MSAs/RSAs and one license in each of the six Economic Area 
Groupings (EAGs)) commenced on August 27, 2002, and closed on September 
18, 2002. Of the 740 licenses available for auction, 484 licenses were 
sold to 102 winning bidders. Seventy-two of the winning bidders claimed 
small business, very small business or entrepreneur status and won a 
total of 329 licenses. A second auction commenced on May 28, 2003, and 
closed on June 13, 2003, and included 256 licenses: 5 EAG licenses and 
476 Cellular Market Area licenses. Seventeen winning bidders claimed 
small or very small business status and won 60 licenses, and nine 
winning bidders claimed entrepreneur status and won 154 licenses.
    Upper 700 MHz Band Licenses. The Commission released a Report and 
Order, authorizing service in the upper 700 MHz band. This auction, 
previously scheduled for January 13, 2003, has been postponed.
    700 MHz Guard Band Licenses. In the 700 MHz Guard Band Order, we 
adopted size standards for ``small businesses'' and ``very small 
businesses'' for purposes of determining their eligibility for special 
provisions such as bidding credits and installment payments. A small 
business in this service is an entity that, together with its 
affiliates and controlling principals, has average gross revenues not 
exceeding $40 million for the preceding three years. Additionally, a 
very small business is an entity that, together with its affiliates and 
controlling principals, has average gross revenues that are not more 
than $15 million for the preceding three years. SBA approval of these 
definitions is not required. An auction of 52 Major Economic Area (MEA) 
licenses commenced on September 6, 2000, and closed on September 21, 
2000. Of the 104 licenses auctioned, 96 licenses were sold to nine 
bidders. Five of these bidders were small businesses that won a total 
of 26 licenses. A second auction of 700 MHz Guard Band licenses 
commenced on February 13, 2001, and closed on February 21, 2001. All 
eight of the licenses auctioned were sold to three bidders. One of 
these bidders was a small business that won a total of two licenses.
    Specialized Mobile Radio. The Commission awards ``small entity'' 
bidding credits in auctions for Specialized Mobile Radio (SMR) 
geographic area licenses in the 800 MHz and 900 MHz bands to firms that 
had revenues of no more than $15 million in each of the three previous 
calendar years. The Commission awards ``very small entity'' bidding 
credits to firms that had revenues of no more than $3 million in each 
of the three previous calendar years. The SBA has approved these small 
business size standards for the 900 MHz Service. The Commission has 
held auctions for geographic area licenses in the 800 MHz and 900 MHz 
bands. The 900 MHz SMR auction began on December 5, 1995, and closed on 
April 15, 1996. Sixty bidders claiming that they qualified as small 
businesses under the $15 million size standard won 263 geographic area 
licenses in the 900 MHz SMR band. The 800 MHz SMR auction for the upper 
200 channels began on October 28, 1997, and was completed on December 
8, 1997. Ten bidders claiming that they qualified as small businesses 
under the $15 million size standard won 38 geographic area licenses for 
the upper 200 channels in the 800 MHz SMR band. A second auction for 
the 800 MHz band was held on January 10, 2002 and closed on January 17, 
2002 and included 23 BEA licenses. One bidder claiming small business 
status won five licenses.
    The auction of the 1,053 800 MHz SMR geographic area licenses for 
the General Category channels began on August 16, 2000, and was 
completed on September 1, 2000. Eleven bidders won 108 geographic area 
licenses for the General Category channels in the 800 MHz SMR band 
qualified as small businesses under the $15 million size standard. In 
an auction completed on December 5, 2000, a total of 2,800 Economic 
Area licenses in the lower 80 channels of the 800 MHz SMR service were 
sold. Of the 22 winning bidders, 19 claimed small business status and 
won 129 licenses. Thus, combining all three auctions, 40 winning 
bidders for geographic licenses in the 800 MHz SMR band claimed status 
as small business.
    In addition, there are numerous incumbent site-by-site SMR 
licensees and licensees with extended implementation authorizations in 
the 800 and 900 MHz bands. We do not know how many firms provide 800 
MHz or 900 MHz geographic area SMR pursuant to extended implementation 
authorizations, nor how many of these providers have annual revenues of 
no more than $15 million. One firm has over $15 million in revenues. We 
assume, for purposes of this analysis, that all of the remaining 
existing extended implementation authorizations are held by small 
entities, as that small business size standard is approved by the SBA.

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

I. CAN-SPAM

    It is difficult to assess the cost of compliance for this item 
given the multiple avenues and the varied, layered approaches to 
protecting consumers from the unwanted commercial electronic mail 
messages under consideration. The umbrella analysis is that if a small 
business which currently engages in sending commercial electronic mail 
messages as part of its advertising campaign ceases sending such 
commercial messages, then there is no cost to comply with any 
prohibition being considered. Congress noted that the CAN-SPAM Act only 
addresses unwanted messages, so the

[[Page 16885]]

loss of business for senders that may result from the decrease in 
advertising in this manner should be nominal.
    Proposed in this item is the development of a small list of 
electronic mail addressing domains. The development of specific domain 
names might require providers to change addressing systems if domain 
names are not already distinguishable, and to register such names. If 
the Commission then prohibited the sending of commercial messages to 
such domains, businesses, including small businesses, that send 
commercial electronic mail would be required to check such a list 
before sending such messages. Because the list would be small, only 
containing the list of relevant providers of such domains, we do not 
anticipate the compliance burden of checking such a list to be great.
    The alternative considered that creates the greatest compliance 
burden on small entities appears to be the use of a registry of 
individual electronic addresses. This alternative would not require 
providers to register names, but would instead require subscribers, 
including small businesses, to register their addresses on a list 
similar to the telemarketing do-not-call registry. Small businesses 
sending commercial electronic mail messages would then be required to 
prescreen or check this list. It is unclear how many listings there 
would be, but given consumer frustration over the number of unwanted 
electronic commercial messages, we expect a large number of individuals 
and businesses to register. The costs to small businesses sending 
commercial electronic mail messages associated with this requirement 
would be the cost of acquiring the ``Do-Not-E-Mail'' list and the cost 
of ``scrubbing'' the small business's solicitation list against the 
``Do-Not-E-Mail'' list. We know the cost of obtaining the FTC's do-not-
call registry is a maximum of $7,375 per year and for many small 
businesses it is free. We estimate that the cost of scrubbing against a 
Do-Not-E-Mail registry to be approximately $300--400 per month for a 
small telemarketing business. Who would pay for such a list to be 
compiled and maintained has not been determined; however, we expect 
this burden on small businesses to be significant.

II. TCPA

    The proposed change in the safe-harbor rules, which would require 
telemarketers to update their lists monthly instead of quarterly, has 
no additional compliance cost for accessing the national do-not-call 
registry, because once a telemarketer has paid its fee to the FTC the 
telemarketer may access the list as often as it wants, up to once a 
day. There may, however, be an increase in costs associated with 
scrubbing the telemarketer's call list more frequently. These increased 
costs might include an increase in staff time to scrub the call list or 
payments to a third party for ``scrubbing'' services. Many small 
businesses perform these ``scrubbing'' operations internally and 
therefore the cost is in staff time and data processing resources. 
Other small businesses chose to hire outside parties to scrub their 
lists. We estimate the cost of scrubbing such a list to be $300-400 per 
month for a small telemarketing business.

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

    The RFA requires an agency to describe any significant, 
specifically small business, alternatives that it has considered in 
reaching its proposed approach, which may include the following four 
alternatives (among others): ``(1) the establishment of differing 
compliance or reporting requirements or timetables that take into 
account the resources available to small entities; (2) the 
clarification, consolidation, or simplification of compliance and 
reporting requirements under the rule for such small entities; (3) the 
use of performance rather than design standards; and (4) an exemption 
from coverage of the rule, or any part thereof, for such small 
entities.''

I. CAN-SPAM

    Initially, we note that the rules are intended to protect 
subscribers, including small businesses, from unwanted mobile service 
commercial messages. Congress found these unwanted messages to be 
costly and time-consuming. Therefore, these measures should benefit 
small businesses by reducing cost and time burdens on small businesses 
that receive such messages.
    There are two alternatives, which might be used in combination, 
considered in the Notice to minimize the burden on some small 
businesses that send mobile commercial electronic mail messages. These 
alternatives are (1) the use of a domain name to indicate those 
entities to which sending a mobile service commercial message is not 
acceptable; and (2) the use of a challenge-response mechanism to reject 
electronic commercial messages. The burden of each alternative on small 
businesses as senders is minimal. We expect that the burden of 
alternative one on small carriers to be minimal as well.
    Alternative one allows senders to recognize mobile service 
messaging by the recipient's electronic mail message address. The 
Commission is considering the requirement that domain names be used to 
identify carriers' mobile service messaging clients. We expect that if 
domain name changes are required, the burden will rest on carriers, 
including small carriers, to change the domain names of their clients. 
We anticipate that this burden on carriers will be minimal. We also 
expect there to be a slight burden on those small businesses that chose 
to use the special domain names to limit incoming commercial messages. 
These small businesses might need to reprint or alter letterhead, 
business cards, or advertising material to reflect the name change. We 
note, however, that for businesses choosing this option, those burdens 
would be offset by the savings they would realize from a reduction in 
unwanted mobile service commercial messages. We consider this burden on 
small businesses receiving commercial messages to be a less burdensome 
alternative than the alternative described in paragraph 37 above that 
would require the establishment of an individual ``Do-Not-E-Mail'' 
registry and would result in a significant burden on small businesses 
sending commercial messages.
    The second alternative considered is the challenge-response 
alternative, which might also require electronic mail messages to be 
identified as commercial. The identification process, known as 
``tagging,'' would then allow recipients to use software that would 
reject or hold such electronic mail. This challenge-response process 
requires a software trigger that would require confirmation from the 
sender before forwarding the message to the intended recipient or would 
return the first message from a sender with a standard response noting 
that the intended recipient is a mobile service messaging subscriber. 
Although there might be a burden imposed on senders to mark their 
commercial messages, this alternative would free all businesses, 
including small businesses, from having to pre-screen their mailing 
lists before sending messages. The burden on small business senders 
would be to note the addressee's status and refrain from sending to 
that address unless the recipient provided prior express authorization. 
This alternative would place a slight burden on small businesses that 
use electronic mail messaging for commercial purposes. We expect that 
it would impose a significant burden on the software design companies 
and the

[[Page 16886]]

manufacturers of wireless message receiving devices.
    In regard to rejecting future messages, we note that two 
alternatives are discussed. One involves a filtering mechanism. A 
filtering mechanism would burden senders in that they might need to 
obtain and retain a secret code from particular subscribers. This code 
would be required to get their commercial messages past the filter. We 
expect that obtaining and retaining a code from particular subscribers 
would be a minimal burden on the small business that chooses to filter 
its messages to keep out unwanted ones. Depending on how the system is 
set up, there might be a small burden on the carriers for enabling such 
a filtering mechanism. In order for the system to work, there might be 
a requirement that small businesses sending these messages mark or tag 
them as commercial. We anticipate that any burden of marking or tagging 
messages would be very small.
    The other alternative we discuss is whether there should be an 
option to use a website interface for subscribers, including small 
businesses, to change their filtering options. The alternative might 
require businesses, including small businesses, to develop a website 
for collecting addresses of subscribers that want to reject future 
messages. We also discuss the possibility of using a webpage for 
subscribers to notify senders that they do not want such messages. As 
far as we can determine at this time, this alternative would be the 
most difficult for small businesses to implement in terms of staff 
resources, cost, software development and use, and Internet access and 
website development. We would appreciate hearing from small businesses 
if this is an accurate assessment.

II. TCPA

    The Commission is also considering modifications to the TCPA safe-
harbor provision. This modification would require that telemarketers 
scrub their lists on a monthly, rather than quarterly, basis. An 
alternative to this proposed rule change is to leave the rule the way 
it currently stands. An advantage to not changing the rule is that 
there would be no increased burden on small businesses. Businesses 
would continue to scrub their own call lists every three months. The 
disadvantage to not changing the rule is that the FTC and Commission 
rules might be inconsistent with one another. Small businesses subject 
to the jurisdiction of both agencies would be faced with this 
inconsistency. Congress has directed us to maximize consistency with 
the FTC's rules. In addition, we believe that it is easier and less 
burdensome for small businesses if the two agencies have consistent 
requirements.
    The TCPA specifically prohibits calls using an autodialer or 
artificial or prerecorded message to any wireless telephone number. 
With the advent of intermodal number portability it became important 
for companies engaged in telemarketing to track recently ported numbers 
in order to ensure continued compliance with the TCPA. The Commission 
is now considering the adoption of a limited safe harbor for autodialed 
and prerecorded message calls to wireless numbers that were recently 
ported from a wireline service to a wireless service provider. It is 
our belief that such an alternative will not have a significant 
economic impact on any small businesses, only a benefit. The 
alternative would be to not adopt a safe harbor for calls to recently 
ported wireless numbers which, according to telemarketers, could make 
compliance with the TCPA's prohibition difficult for callers using 
autodialers and prerecorded messages. Small businesses, which disagree 
with the Commission's determination and believe the creation of a safe 
harbor would impact their business in a negative way, are requested to 
file comments and advise the Commission about such an impact.

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

    No federal rules conflict with the rules discussed in this item; 
however, there are areas in which the CAN-SPAM Act and the TCPA may 
overlap as indicated in the primary item. In addition, the Commission 
is required to consult with the FTC on its rulemaking. The FTC is 
charged with implementing and enforcing most of the CAN-SPAM Act, 
including criteria that further defines items that the Commission rules 
will reference. The FTC is conducting its own rulemaking concurrently, 
although most of the FTC's deadlines occur after the Commission's rules 
must be promulgated. The TCPA and the Telemarketing Sales Rule 
(enforced by the FTC) are duplicative in part.

Ordering Clauses

    Accordingly, it is ordered that, pursuant to the authority 
contained in sections 1-4, 227 and 303(r) of the Communications Act of 
1934, as amended; the Controlling the Assault of Non-Solicited 
Pornography and Marketing Act of 2003, Public Law 108-187, 117 Statute 
2699; and the Do-Not-Call Implementation Act, Public Law 108-10, 117 
Statute 557; 47 U.S.C. 151-154, 227 and 303(r); the Notice of Proposed 
Rulemaking and Further Notice of Proposed Rulemaking are Adopted.
    It is further ordered that the commission's Consumer & Governmental 
Affairs Bureau, Reference Information Center, shall send a copy of this 
Notice of Proposed Rulemaking and Further Notice of Proposed 
Rulemaking, including the Initial Regulatory Flexibility Analysis, to 
the Chief Counsel for Advocacy of the Small Business Administration.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 04-7226 Filed 3-30-04; 8:45 am]
BILLING CODE 6712-01-P