[Federal Register Volume 70, Number 1 (Monday, January 3, 2005)]
[Proposed Rules]
[Pages 62-63]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-28419]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 64

[CG Docket No. 02-278; DA 04-3837]


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 Expedited 
Declaratory Ruling filed by the National City Mortgage Co. (NCMC), 
asking the Commission to preempt a Florida telemarketing law, Florida 
Statute Section 501.059, prohibiting prerecorded messages without 
consent.

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

[[Page 63]]


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 04-3837, released December 7, 2004. 
On July 3, 2003, the Commission released a Report and Order (2003 TCPA 
Order), In the Matter of Rules and Regulations Implementing the 
Telephone Consumer Protection Act of 1991, adopted June 26, 2003, CG 
Docket No. 02-278, FCC 03-153; published at 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 
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: 
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 22, 2004, National City Mortgage Company (NCMC) filed a 
Petition for Expedited Declaratory Ruling asking the Commission to 
preempt Florida law prohibiting prerecorded messages without consent. 
According to Petitioner, NCMC has received a notice from the Florida 
Department of Agriculture & Consumer Services which indicates that a 
prerecorded message call initiated by NCMC violated section 
501.059(7)(a) of the Florida statute. NCMC explains that the Florida 
statute prohibits such prerecorded calls and makes no exception to this 
restriction for calls that are placed to persons with whom the caller 
has an established business relationship. In addition, NCMC explains 
that its calls into Florida are interstate calls. NCMC contends that 
the Florida statute is inconsistent with the Commission's rules that 
permit calls using prerecorded voice messages to any person with whom 
the caller has an established business relationship at the time the 
call is made; therefore, NCMC argues that the Florida statute should be 
preempted as applied to interstate calls. In addition, NCMC indicates 
that it has been informed by the Florida Department of Agriculture & 
Consumer Services that the complaint is still pending and might become 
the basis for further enforcement proceedings against NCMC. NCMC 
maintains that ``the State of Florida's apparent intention to enforce 
th[e] prohibition as to interstate calls subjects NCMC to the 
`multiple, conflicting regulations' that the Commission has declared 
its intention to avoid.''

Federal Communications Commission.
Jay Keithley,
Deputy Bureau Chief, Consumer & Governmental Affairs Bureau.
[FR Doc. 04-28419 Filed 12-30-04; 8:45 am]
BILLING CODE 6712-01-P