[Federal Register Volume 70, Number 1 (Monday, January 3, 2005)]
[Proposed Rules]
[Pages 60-61]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-28417]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 64

[CG Docket No. 02-278; DA 04-3835]


Rules and Regulations Implementing the Telephone Consumer 
Protection Act of 1991

AGENCY: Federal Communications Commission.

ACTION: Petition for declaratory ruling; comments requested.

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SUMMARY: This document seeks comment on a Petition for Declaratory 
Ruling filed by the Consumer Bankers Association (CBA), asking the 
Commission to preempt certain sections of the Indiana Revised Statutes 
and Indiana Administrative Code as it relates to interstate telephone 
calls.

DATES: Comments are due on or before February 2, 2005, and reply 
comments are due on or before February 17, 2005.

ADDRESSES: Federal Communications Commission, 445 12th Street, SW., 
Washington, DC 20554. See SUPPLEMENTARY INFORMATION for further filing 
instructions.

FOR FURTHER INFORMATION CONTACT: Kelli Farmer, Consumer Policy 
Division, Consumer & Governmental Affairs Bureau, (202) 418-2512 
(voice), [email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's 
document, CG Docket No. 02-278, DA 04-3835, released December 7, 2004. 
On July 3, 2003, the Commission released a Report and Order (2003 TCPA 
Order), 68 FR 44144, July 25, 2003. In the 2003 TCPA Order, the 
Commission stated its belief that any state regulation of interstate 
telemarketing calls that differed from our rules under section 227 
almost certainly would conflict with and frustrate the federal scheme 
and would be preempted. The Commission will consider any alleged 
conflicts between state and federal

[[Page 61]]

requirements and the need for preemption on a case-by-case basis. 
Accordingly, any party that believes a state law is inconsistent with 
section 227 or our rules may seek a Declaratory Ruling from the 
Commission. When filing comments, please reference CG Docket No. 02-
278. Comments may be filed using the Commission's Electronic Comment 
Filing System (ECFS) or by filing paper copies. See Electronic Filing 
of Documents in Rulemaking Proceedings, 63 FR 24121, May 1, 1998. 
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. In completing the 
transmittal screen, commenters should include their full name, U.S. 
Postal Service mailing address, and the applicable docket or rulemaking 
number. Parties may also submit an electronic comment by Internet e-
mail. To get filing instructions for e-mail comments, commenters should 
send 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 send an original and four 
(4) copies of each filing. Filings can be sent by hand or messenger 
delivery, by electronic media, by commercial overnight courier, or by 
first-class or overnight U.S. Postal Service mail (although we continue 
to experience delays in receiving U.S. Postal Service mail). The 
Commission's contractor, Natek, Inc., will receive hand-delivered or 
messenger-delivered paper filings or electronic media 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 and electronic media sent by 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.
    This proceeding shall be treated as a ``permit but disclose'' 
proceeding in accordance with the Commission's ex parte rules, 47 CFR 
1.1200. Persons making oral ex parte presentations are reminded that 
memoranda summarizing the presentations must contain summaries of the 
substances of the presentations and not merely a listing of the 
subjects discussed. More than a one or two sentence description of the 
views and arguments presented is generally required. See 47 CFR 
1.1206(b). Other rules pertaining to oral and written ex parte 
presentations in permit-but-disclosed proceedings are set forth in 
section 1.1206(b) of the Commission's rules, 47 CFR 1.1206(b).
    The full text of this document and 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, (202) 418-0270. This document may be purchased from the 
Commission's duplicating contractor, Best Copy and Printing (BCPI), 
Inc., Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 
20554. Customers may contact BCPI, Inc. at their Web site: http://www.bcpiweb.com or by calling 1-800-378-3160. 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) 418-0530 
(voice) or (202) 418-0432 (TTY). This document can also be downloaded 
in Word or Portable Document Format (PDF) at http://www.fcc.gov/cgb/policy.

Synopsis

    On November 19, 2004, Consumer Bankers Association (CBA) filed a 
Petition for Declaratory Ruling asking the Commission to preempt 
certain sections of the Indiana Revised Statutes and Indiana 
Administrative Code as it relates to interstate telephone calls. 
Specifically, CBA requests that the Commission preempt the Indiana laws 
to the extent they prohibit telemarketing calls to persons and entities 
with which the caller has an established business relationship as 
defined in the Commission's rules. CBA indicates that the Indiana laws 
provide that a telephone solicitor may not make a telephone sales call 
to a telephone number if that number appears on the state's do-not-call 
list. According to CBA, Indiana's prohibition on calls to numbers on 
the Indiana do-not-call list is subject to exceptions that partially 
overlap with, but are substantially narrower than the ``established 
business relationship'' (``EBR'') of the Commission's telemarketing 
rules. CBA contends that, unlike the Commission's EBR definition, the 
Indiana exceptions: (1) Do not include relationships based upon a 
consumer's past inquiry or application, during the three months 
preceding the call, regarding the party's products or services; (2) do 
not include calls to persons with whom the caller has engaged, within 
18 months prior to the call, in a purchase or transaction as to which 
payment has been made or performance completed; and (3) do not 
expressly permit an EBR to extend to any affiliated entities that the 
consumer reasonably would expect to be included within that category.

Federal Communications Commission.
Jay Keithley,
Deputy Bureau Chief, Consumer & Governmental Affairs Bureau.
[FR Doc. 04-28417 Filed 12-30-04; 8:45 am]
BILLING CODE 6712-01-P