[Federal Register Volume 70, Number 124 (Wednesday, June 29, 2005)]
[Proposed Rules]
[Pages 37318-37320]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-12466]


-----------------------------------------------------------------------

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 64

[CG Docket No. 02-278; DA 05-1347]


Rules and Regulations Implementing the Telephone Consumer 
Protection Act of 1991

AGENCY: Federal Communications Commission.

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

-----------------------------------------------------------------------

SUMMARY: In this document, the Commission reopens the public comment 
period for six declaratory ruling petitions that seek Commission 
preemption under the Telephone Consumer Protection Act (``TCPA'') of 
the application of particular state laws to interstate telemarketing 
calls.

DATES: Comments are due on or before July 29, 2005, and reply comments 
are due on or before August 18, 2005.

[[Page 37319]]


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, DA 05-1347, released May 13, 2005. On July 3, 2003, the 
Commission released a Report and Orders revising its rules under the 
TCPA (2003 TCPA Order), published at 68 FR 44144, July 25, 2003. 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. The Commission instructed any party who believes 
that a state law is inconsistent with section 227 of the Communications 
Act or the Commission's rules to seek a declaratory ruling from the 
Commission. The six Petitions that are the subject of this document 
sought such a declaratory ruling. In order to assemble a more complete 
administrative record that encompasses and reflects relevant 
developments in this area, the Commission invites interested parties to 
file supplemental comments in the record of the following proceedings: 
(1) American Teleservices Association Petition for Declaratory Ruling 
with Respect to Certain Provisions of the New Jersey Consumer Fraud Act 
and the New Jersey Administrative Code, DA 04-3185, filed Aug. 24, 2004 
(citing N.J. Statutes Ann. section 56:8-119, et seq. (West 2003) and 
N.J. Admin. Code title 13, section 45D (2004)); (2) ccAdvertising (aka 
FreeEats.com, Inc.) Petition for Expedited Declaratory Ruling, DA 04-
3187, filed Sept. 13, 2004 (citing N.D. Cent. Code section 51-28-02); 
(3) Consumer Bankers Association Petition for Declaratory Ruling with 
Respect to Certain Provisions of the Indiana Revised Statutes and 
Indiana Administrative Code, DA 04-3835, filed Nov. 19, 2004 (citing 
Burns Ind. Code Ann. section 24-4.7-4 (2004) and Ind. Admin. Code 
section 11 IAC 1-1-4 and section 11 IAC 1-1-3.5 (2004)); (4) Consumer 
Bankers Association Petition for Expedited Declaratory Ruling with 
Respect to Certain Provisions of the Wisconsin Statutes and Wisconsin 
Administrative Code, DA 04-3836, filed Nov. 19, 2004 (citing Wis. 
Statutes section 100.52 (2003) and Wis. Admin. Code, Agriculture, Trade 
and Consumer Protection, sections 127.02-127.20 and 127.80-127.84)); 
(5) National City Mortgage Co. Petition for Expedited Declaratory 
Ruling with Respect to Certain Provisions of the Florida Statutes, DA 
04-3837, filed Nov. 22, 2004 (citing Fla. Statutes section 501.059); 
and (6) TSA Stores, Inc. (The Sports Authority) Petition for 
Declaratory Ruling with Respect to Certain Provisions of the Florida 
Laws and Regulations, DA 05-342, filed Feb. 1, 2005 (citing Fla. 
Statutes section 501.059)).
    When filing comments, please reference CG Docket No. 02-278, DA 05-
1347, and the DA number assigned to the petition to which the comments 
relate, including one or more of the following: DA 04-3185, DA 04-3187, 
DA 04-3835, DA 04-3836, DA 04-3837, or DA 05-342. 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 the 
Commission continues 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

    In late 2004 and early 2005, the Commission received six petitions 
for declaratory ruling seeking Commission preemption under the TCPA of 
particular state laws, as applied to interstate telemarketing calls. In 
response to public notices issued by the Commission's Consumer & 
Governmental Affairs Bureau, interested parties filed comments with the 
Commission on issues raised in the six

[[Page 37320]]

declaratory ruling petitions. Since the close of the comment cycles 
relating to these petitions, the Commission's staff has learned of a 
number of recent developments that, if made a part of the formal 
record, may help to inform the Commission's consideration of particular 
issues raised in the petitions. In particular, a recently filed 
petition for declaratory ruling describes an increasing number of 
divergent state laws applicable to interstate telemarketing and lists 
several telemarketing-related bills that have been introduced in state 
legislatures in recent months that, if enacted, would apply to 
interstate telemarketing calls. See Alliance Contact Services, et al. 
Petition for Declaratory Ruling that the FCC has Exclusive Regulatory 
Jurisdiction Over Interstate Telemarketing, filed April 29, 2005. 
Similarly, we are aware of recent court proceedings involving 
adjudications of state enforcement actions in which the proper 
relationship between state and federal telemarketing laws has been at 
issue before the court. See, e.g., North Dakota v. FreeEats.com, Inc., 
Opinion and Order, No. 04-C-1694 (N.D. Dist. Ct. Feb.2, 2005); North 
Dakota v. FreeEats.com, Inc., Stipulation for Entry of Final Judgment, 
No. 04-C-1694 (N.D. Dist. Ct. March 9, 2005) (state court holding that 
interstate political polling calls using prerecorded message violate 
state's telemarketing law).
    Finally, we note that the Consumer & Governmental Affairs Bureau 
released contemporaneously with this document two additional public 
notices seeking public comment on two separate petitions for 
declaratory ruling that raise issues relating to the Commission's 
jurisdiction and preemption authority under the TCPA. See Consumer & 
Governmental Affairs Bureau Seeks Comment on Petition for Declaratory 
Ruling Relating to Commission's Jurisdiction Over Interstate 
Telemarketing, Public Notice, CG Docket No. 02-278, DA 05-1346 (rel. 
May 13, 2005) (seeking comment on joint petition filed by 33 
organizations engaged in interstate telemarketing activities in which 
petitioners ask Commission to declare its exclusive regulatory 
jurisdiction over interstate telemarketing); Consumer & Governmental 
Affairs Bureau Seeks Comment on Petition for Declaratory Ruling on 
Preemption of California Telemarketing Rules, Public Notice, CG Docket 
No. 02-278, DA 05-1348 (rel. May 13, 2005) (seeking comment on petition 
for declaratory ruling in which petitioner asks Commission not to 
preempt particular provisions of California's telemarketing laws). In 
order to assemble a more complete administrative record that 
encompasses and reflects relevant developments in this area, the 
Commission reopens the public comment period for the six declaratory 
ruling petitions referenced above and invites interested parties to 
file supplemental comments in the record of those proceedings.

    Federal Communications Commission.
Monica Desai,
Acting Chief, Consumer & Governmental Affairs Bureau.
[FR Doc. 05-12466 Filed 6-28-05; 8:45 am]
BILLING CODE 6712-01-P