[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