[Federal Register Volume 70, Number 114 (Wednesday, June 15, 2005)]
[Proposed Rules]
[Pages 34725-34726]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-11910]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 64

[CG Docket No. 02-278; DA 05-1348]


Rules and Regulations Implementing the Telephone Consumer 
Protection Act of 1991

AGENCY: Federal Communications Commission.

ACTION: Proposed rule; petition for declaratory ruling, comments 
requested.

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SUMMARY: In this document, the Commission seeks comment on a petition 
for declaratory ruling (``Petition'') filed by Mark Boling, asking the 
Commission to declare that particular provisions of the California 
Consumer Legal Remedies Act (``CLRA''), as applied to interstate 
telephone calls, are not preempted by the Telephone Consumer Protection 
Act (``TCPA'').

DATES: Comments are due on or before July 15, 2005, and reply comments 
are due on or before August 4, 2005.

ADDRESSES: You may submit comments, identified by CG DOCKET NO. 02-278, 
DA 05-1348, by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Federal Communications Commission's Web Site: http://www.fcc.gov/cgb/ecfs/. Follow the instructions for submitting comments.
     People with Disabilities: Contact the FCC to request 
reasonable accommodations (accessible format documents, sign language 
interpreters, CART, etc.) by e-mail: [email protected] or phone: (202) 
418-0530 or TTY: (202) 418-0432.
    For detailed instructions for submitting comments and additional 
information on the rulemaking process, see the SUPPLEMENTARY 
INFORMATION section of this document.

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, DA 05-1348, released May 13, 2005. 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.
    On July 3, 2003, the Commission released a Report and Order (2003 
TCPA Order) revising its rules under the TCPA, published at 68 FR 
44144, July 25, 2003. In the 2003 TCPA Order, the Commission determined 
that it would consider any alleged conflicts between State and Federal 
requirements and the need for preemption on a case-by-case basis. 
Accordingly, the Commission instructed any party that believes a State 
law is inconsistent with Sec.  227 or the Commission's rules to seek a 
declaratory ruling from the Commission. Mr. Boling's Petition seeks 
such a declaratory ruling. When filing comments, please reference CG 
Docket No. 02-278, DA 05-1348. Comments

[[Page 34726]]

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-disclose proceedings are set forth in Sec.  
1.1206(b) of the Commission's rules, 47 CFR 1.1206(b).

Synopsis

    On August 11, 2003, Mark Boling filed a Petition ``individually and 
on behalf of California consumers and California businesses'' asking 
the Commission to declare that particular provisions of the California 
Consumer Legal Remedies Act (``CLRA''), as applied to interstate 
telephone calls, are not preempted by the Telephone Consumer Protection 
Act (``TCPA''). The Commission seeks comment on the issues raised in 
the Petition.
    Mr. Boling states that he has acted as a party, representative 
party, or legal representative in numerous California lawsuits in which 
defendants have asserted as a defense that particular provisions of the 
CLRA are preempted by the TCPA. Mr. Boling indicates that the CLRA, as 
set forth in California Civil Code Sec.  1770(a), contains a list of 
unlawful practices. He notes that California Civil Code Sec.  
1770(a)(22)(A), in particular, makes unlawful the ``dissemination of an 
unsolicited prerecorded message by telephone without an unrecorded, 
natural voice first informing the person answering the telephone of the 
name of the caller or the organization being represented, and either 
the address or the telephone number of the caller, and without 
obtaining the consent of that person to listen to the prerecorded 
message.''
    Mr. Boling further notes that Sec.  227(b)(1)(B) of the 
Communications Act, as amended by the TCPA, makes it unlawful for any 
person ``to initiate any telephone call to any residential telephone 
line using an artificial or prerecorded voice to deliver a message 
without the prior express consent of the called party, unless the call 
is initiated for emergency purposes or is exempted by rule or order by 
the Commission under paragraph (2)(B).'' Asserting that this provision 
of Federal law poses no conflict with the relevant provisions of the 
CLRA, Mr. Boling explains that:

    In this instance, the CLRA controls dissemination of a 
prerecorded message and does not control the telephone call 
containing that message. The TCPA controls the call, and not the 
dissemination of the message. Therefore, when a party initiates the 
unlawful call it violates the TCPA and when the unlawful message is 
received in California it violates the CLRA.

    As such, Mr. Boling asserts that ``no conflict exists in the 
enforcement of the TCPA or the CLRA as it relates to the activities set 
forth in this action, as the actionable conduct in each law is 
separately defined.'' Finally, Mr. Boling asserts that, because the 
practices at issue in the Petition do not pertain to technical and 
procedural requirements for identification of senders of telephone 
facsimile messages or autodialed artificial or prerecorded voice 
messages, as described in section 227(d) of the TCPA, they are not 
subject to Sec.  227(e) of the TCPA.
    Accordingly, Mr. Boling asks the Commission to issue a declaratory 
ruling that the identified provisions of the California Civil Code, as 
applied to interstate calling, are not preempted by the TCPA.

Federal Communications Commission.
Monica Desai,
Acting Chief, Consumer & Governmental Affairs Bureau.
[FR Doc. 05-11910 Filed 6-14-05; 8:45 am]
BILLING CODE 6712-01-P