[Federal Register Volume 70, Number 239 (Wednesday, December 14, 2005)]
[Notices]
[Pages 74014-74016]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-23856]
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FEDERAL COMMUNICATIONS COMMISSION
[CG Docket No. 02-278; DA 05-2975]
Rules and Regulations Implementing the Telephone Consumer
Protection Act of 1991
AGENCY: Federal Communications Commission.
ACTION: Notice; comments requested.
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SUMMARY: In this document, the Commission seeks comment on a petition
for declaratory ruling filed by the Fax Ban Coalition (the
``Coalition'') concerning the scope of the Commission's jurisdiction
over interstate communications under the Telephone Consumer Protection
Act of 1991 (``TCPA''). In particular, the Coalition asks the
Commission to: Affirm that, under its general grant of exclusive
authority to regulate interstate communications, the Commission has
exclusive authority to regulate interstate commercial fax messages; and
find that section 17538.43 of the California Business and Professions
Code, and all other State laws that purport to regulate interstate
facsimile transmissions, are preempted by the federal TCPA, 47 U.S.C.
227.
DATES: Comments are due on or before January 13, 2006, and reply
comments are due on or before February 2, 2006.
ADDRESSES: You may submit comments, identified by [docket number and/or
[[Page 74015]]
rulemaking number], 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.
Mail: Parties who choose to file by paper should also
submit their comment on diskette. These diskettes should be submitted,
along with three paper copies to Kelli Farmer, Consumer & Governmental
Affairs Bureau, Policy Division, 445 12th Street, SW., Room 5-A866,
Washington, DC 20554. Such a submission should be on a 3.5 inch
diskette formatted in an IBM compatible formatted using Word 97 or
compatible software. The diskette should be accompanied by a cover
letter and should be submitted in ``read only'' mode. The diskette
should be clearly labeled with the commenter's name, proceeding
(including the lead docket number in this case CG Docket No. 02-278),
type of pleading (comment or reply comment), date of submission, and
the name of the electronic file on the diskette. The label should also
include the following phrase: ``Disk Copy--Not an Original.'' Each
diskette should contain only one party's pleadings, preferably in a
single electronic file. In addition, commenters must send diskette
copies to the Commission's contractor at Portals II, 445 12th Street,
SW., Room CY-B402, Washington, DC 20554.
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: Erica McMahon, 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 05-2975, released November 22, 2005. The full text of
document DA 05-2975, the Coalition's submission, 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. Document DA 05-2975, the Coalition's
submission, and copies of subsequently filed documents in this matter
may also be purchased from the Commission's contractor at Portals II,
445 12th Street, SW., Room CY-B402, Washington, DC 20554. Customers may
contact the Commission's contractor at their Web site http://www.bcpiweb.com or call 1-800-378-3160. A copy of the Coalition's
submission may also be found by searching ECFS at http://www.fcc.gov/cgb/ecfs (insert CG Docket No. 02-278 into the proceeding block).
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), 202-418-0432 (TTY). Document DA
05-2975 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) which published in the
Federal Register on July 25, 2003 (68 FR 44144) revising its rules
under the TCPA. 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. This
petition argues that the Commission should assert its exclusive
jurisdiction over interstate communications, rather than deal with
preemption petitions on a case-by-case basis. Pursuant to Sec. Sec.
1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419,
interested parties may file comments and reply comments on or before
the dates indicated on the first page of this document. Comments may be
filed using: (1) The Commission's Electronic Comment Filing System
(ECFS), (2) the Federal Government's eRulemaking Portal, or (3) by
filing paper copies. See Electronic Filing of Documents in Rulemaking
Proceedings, 63 FR 24121 (1998).
Electronic Filers: Comments may be filed electronically
using the Internet by accessing the ECFS: http://www.fcc.gov/cgb/ecfs/
or the Federal eRulemaking Portal: http://www.regulations.gov. Filers
should follow the instructions provided on the website for submitting
comments.
For ECFS filers, if multiple docket or rulemaking numbers
appear in the caption of this proceeding, filers must transmit one
electronic copy of the comments for each docket or rulemaking number
referenced in the caption. In completing the transmittal screen, filers
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,
filers should send an e-mail to [email protected], and include the following
words in the body of the message, ``get form.'' A sample form and
directions will be sent in response.
Paper Filers: 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,
filers 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 Service mail (although the Commission continues to experience
delays in receiving U.S. Postal Service mail). All filings must be
addressed to the Commission's Secretary, Office of the Secretary,
Federal Communications Commission.
The Commission's contractor 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, Express, and Priority
mail should be addressed to 445 12th Street, SW., Washington, DC 20554.
Synopsis
On November 7, 2005, the Coalition filed with the Commission a
joint petition for declaratory ruling. See the Coalition's, Petition
for Declaratory Ruling, filed November 7, 2005 (``Petition''). The
Coalition characterizes its membership as a diverse group of small and
large businesses and other organizations active in a variety of
industries. Coalition members include bankers, health care providers,
magazine publishers, trade show operators, travel agents, attorneys and
insurance agents.
The joint petition raises issues concerning the scope of the
Commission's jurisdiction over interstate communications under the
[[Page 74016]]
Telephone Consumer Protection Act of 1991 (``TCPA''). Telephone
Consumer Protection Act of 1991, Public Law 102-243, 105 Statute 2394
(1991), codified at 47 U.S.C. 227. In particular, the Coalition asks
the Commission to: (1) Affirm that, under its general grant of
exclusive authority to regulate interstate communications, the
Commission has exclusive authority to regulate interstate commercial
fax messages; and (2) find that section 17538.43 of the California
Business and Professions Code, and all other State laws that purport to
regulate interstate facsimile transmissions, are preempted by the
federal TCPA, 47 U.S.C. 227. In this document, the Commission seeks
comment on the issues raised in the Coalition's joint petition.
The Coalition asserts that States lack jurisdiction to regulate
interstate fax communications. According to the Coalition, Congress
granted exclusive jurisdiction to the Commission over ``all interstate
and foreign communication'' under the Communications Act of 1934. The
Coalition argues that exclusive federal regulation of interstate
commercial fax transmissions is consistent with congressional intent,
47 U.S.C. 227(e)(1), and with prior Commission decisions. In addition,
the Coalition contends that individual states' attempts to regulate
interstate communication have resulted in varying fax regulation that
is not only inconsistent with Congressional intent and the optimal
goals of the TCPA, but extremely burdensome to the individuals,
companies and other organizations that rely heavily on fax technology
to conduct business. Accordingly, the Coalition maintains the
Commission should preempt all State laws purporting to regulate
interstate fax transmissions and assert exclusive jurisdiction over
such regulation.
In addition, the Coalition argues that on October 7, 2005,
California enacted a law that conflicts with the fax requirements of
the TCPA. The Coalition contends that California's new law contains the
text of section 227 of the Communications Act, without the Junk Fax
Prevention Act of 2005 (``JFPA'') amendments, and applies that language
to any person sending faxes into or out of the state. Consequently, the
Coalition maintains that the California law effectively eliminates the
established business relationship (``EBR'') exception to the
prohibition on unsolicited faxes in the JFPA.
The Coalition urges the Commission to declare that the Commission
has exclusive jurisdiction to regulate interstate commercial fax
messages and all State efforts to do so are preempted.
Federal Communications Commission.
Jay Keithley,
Deputy Bureau Chief, Consumer & Governmental Affairs Bureau.
[FR Doc. 05-23856 Filed 12-13-05; 8:45 am]
BILLING CODE 6712-01-P