[Federal Register Volume 72, Number 240 (Friday, December 14, 2007)]
[Proposed Rules]
[Pages 71099-71102]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-24280]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 64
[CG Docket No. 02-278, FCC 07-203]
Rules and Regulations Implementing the Telephone Consumer
Protection Act of 1991
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: In this document, the Commission tentatively concludes that it
should amend the Commission's rules under the Telephone Consumer
Protection Act (TCPA) to require telemarketers to honor registrations
with the National Do-Not-Call Registry so that registrations will not
automatically expire based on the five year registration period. The
Commission proposes extending this requirement indefinitely to minimize
the inconvenience to consumers of having to re-register their
preferences not to receive telemarketing calls and to further the
underlying goal of the National Registry to protect consumer privacy
rights. Also in this document, the Commission seeks comment on this
tentative conclusion and on how best to coordinate this rule change
with the Federal Trade Commission (FTC).
DATES: Comments are due on or before January 14, 2008. Reply comments
are due on or before January 28, 2008.
ADDRESSES: You may submit comments identified by CG Docket No. 02-278
and/or FCC Number 07-203, by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting electronic filings.
Federal Communications Commission's Web site: http://www.fcc.gov/cgb/ecfs/. Follow the instructions for submitting
electronic filings.
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-
0539 or TTY: (202) 418-0432.
For detailed instructions for submitting electronic filings and
additional information on the rulemaking process, see the SUPPLEMENTARY
INFORMATION section of this document.
FOR FURTHER INFORMATION CONTACT: Lynne Montgomery, Consumer &
Governmental Affairs Bureau, Policy Division, at (202) 418-2229
(voice), or e-mail [email protected].
SUPPLEMENTARY INFORMATION: On July 3, 2003, the Commission released the
Rules and Regulations Implementing the TCPA of 1991, Report and Order
(2003 TCPA Order), CG Docket No. 02-278, FCC 03-153, published at 68 FR
44144, July 25, 2003, revising the TCPA rules, and adopted new rules to
provide consumers with several options for avoiding unwanted telephone
solicitations. These new rules established a national do-not-call
registry, set a maximum rate on the number of abandoned calls, required
telemarketers to transmit caller ID information, and modified the
Commission's unsolicited facsimile advertising requirements. This is a
summary of the Commission's document Rules and Regulations Implementing
the TCPA of 1991, Notice of Proposed Rulemaking (Do-Not-Call Registry
NPRM), CG Docket No. 02-278, FCC 07-203, adopted November 27, 2007, and
released December 4, 2007, seeking comment on its tentative conclusion
to amend its rules to eliminate the five-year registration period for
the Do-Not-Call Registry and require telemarketers to honor
registrations indefinitely, unless the consumer has cancelled the
registration or the database administrator removes the telephone number
because it was disconnected or reassigned. The Do-Not-Call Registry
NPRM does not contain new or modified information collection
requirements subject to the PRA of 1995, Public Law 104-13. In
addition, it does not contain any new or modified ``information
collection burden for small business concerns with fewer than 25
employees,'' pursuant to the Small Business Paperwork Relief Act of
2002, Public Law 107-198, see 44 U.S.C. 3506 (c)(4).
Pursuant to Sec. Sec. 1.415 and 1.419 of the Commission's rules,
47 CFR 1.415 and 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, May 1, 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 Web site for submitting
comments.
ECFS filers must transmit one electronic copy of the
comments for CG Docket No. 02-278. In completing the transmittal
screen, filers should include their full name, U.S. Postal Service
mailing address, and the docket number, CG Docket No. 02-278. 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
[[Page 71100]]
one docket or rulemaking number appears in the caption in this
proceeding, filers must submit two additional copies of 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, Marlene H. Dortch, Office of the Secretary,
Federal Communications Commission, 445 12th Street, SW., Washington, DC
20554.
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 mail 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, Express, and Priority
mail should be addressed to 445 12th Street, SW., Washington, DC 20554.
Pursuant to Sec. 1.1200 of the Commission's rules, 47 CFR 1.1200,
this matter shall be treated as a ``permit-but-disclose'' proceeding in
accordance with the Commission's ex parte rules. 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).
A copy of document FCC 07-203 and any subsequently filed documents
in this matter will be available during regular business hours at the
FCC Reference Center, Portals II, 445 12th Street, SW., Room CY-A257,
Washington, DC 20554, (202) 418-0270. Document FCC 07-203 and any
subsequently filed documents in this matter may also be purchased from
the Commission's duplicating contractor at their Web site, http://www.bcpiweb.com, or call (800) 378-3160. A copy of document FCC 07-203
and any subsequently filed documents in this matter may also be found
by searching the Commission's Electronic Comment Filing System (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 FCC 07-203 can also be downloaded in Word or Portable Document
Format (PDF) at: http://www.fcc.gov/cgb/policy.
Synopsis
The Commission tentatively concludes that it should amend its rules
so that telemarketers will be required to honor registrations with the
National Do-Not-Call Registry until the registration is cancelled by
the consumer or the telephone number is removed by the database
administrator because it was disconnected or reassigned. Under this
tentative conclusion, consumer registrations will not expire after five
years. The Commission seeks comment on this tentative conclusion and
how to implement this rule change in coordination with the FTC.
The National Do-Not-Call Registry was adopted in large part to make
it easier and more efficient for consumers to prevent unwanted
telemarketing calls. As explained in Reports to Congress, the
Commission believes the number of telephone numbers added to the
Registry and the FCC's experience in both helping to ensure compliance
with the Registry and in enforcing the do-not-call rules are strong
indicators that the Registry has been successful in curbing the number
of unwanted telemarketing calls. Therefore, the Commission is concerned
that, starting June 28, 2008, five years after the opening of the
registry, as many as 10 million registered numbers will expire and be
automatically removed from the database, unless consumers take steps to
re-register the numbers. By August 2008, as many as 20 million
additional numbers will potentially expire and be purged from the
registry. Such expirations will leave millions of consumers without
protection against unwanted telemarketing calls--protections they have
come to rely on since registering their numbers in 2003. Removing the
current 5-year registration period will alleviate any burdens on
consumers associated with re-registering numbers, including the time
and effort necessary to register and the need to remember when to re-
register. The Commission believes requiring telemarketers to continue
honoring do-not-call registrations will also minimize any consumer
confusion resulting from a sudden increase in telemarketing calls
received when registrations begin to expire next year. In addition,
eliminating the need to re-register numbers every five years should
lower the cost of operating the National Registry.
In adopting the National Registry, the Commission was mindful of
concerns regarding the accuracy of the database. Initially, the
Commission determined that a re-registration requirement should be
included given that telephone numbers change hands, are disconnected
and reassigned over time. However, the Commission believes the database
administrator's use of technology to check all registered telephone
numbers on a monthly basis and remove those numbers that have been
disconnected or reassigned will maintain the database's high-level of
accuracy. In addition, consumers will continue to be able to verify or
cancel their registration status using either the telephone or
Internet. Allowing consumers to verify their registration status or
cancel their registrations at any time also enhances the accuracy of
the National Registry.
The Commission recognizes that absent a similar change in the FTC's
policies, numbers that have been in the Registry for five years may be
purged by the database administrator beginning in June 2008, and that
telemarketers will no longer have access to those numbers in order to
avoid calling them. The Commission notes, however, that the FTC
recently committed that ``it will not drop any telephone numbers from
the Registry based on the five-year expiration period pending final
Congressional or agency action on whether to make registration
permanent.'' The Commission envisions working closely with the FTC to
ensure that telephone numbers are not removed at the end of the 5-year
registration period, and that telemarketers continue to have access to
those numbers. The Commission seeks comment on how best to coordinate
with the FTC to most effectively institute this rule change in a
meaningful, consistent way.
In light of our tentative conclusion and the FTC's indication that
it will retain registrations after the 5-year period, the Commission
believes the Registry will continue to operate as it does today. The
Commission, therefore,
[[Page 71101]]
seeks comment on what impact, if any, our proposed rule change would
have on telemarketers, particularly small businesses. Because
telemarketers would be required to continue honoring do-not-call
registrations as they do now, the Commission tentatively concludes that
the enhanced consumer privacy protections created by this proposed rule
amendment, taken in conjunction with the benefits to the federal
government in administering the National Registry, outweigh any
potential impact.
The Commission believes making registrations permanent adequately
balances the need to maintain a high level of accuracy in the national
registry with the desire to have a simple and effective means to limit
unwanted telemarketing calls. The proposed rule changes do not impose
any new or modified information collection requirements.
Initial Regulatory Flexibility Analysis
As required by the Regulatory Flexibility Act of 1980, as amended
(RFA), the Commission has prepared this present Initial Regulatory
Flexibility Analysis (IRFA) of the possible significant economic impact
on a substantial number of small entities by the policies and rules
proposed in the Do-Not-Call Registry NPRM. Written public comments are
requested on this IRFA. Comments must be identified as responses to the
IRFA and must be filed on or before the dates indicated on the first
page of this document. The Commission will send a copy of this Do-Not-
Call Registry NPRM, including this IRFA, to the Chief Counsel for
Advocacy of the Small Business Administration (SBA). In addition, the
Do-Not-Call Registry NPRM and IRFA (or summaries thereof) will be
published in the Federal Register.
Need for, and Objectives of, the Proposed Rules
In 2003, the Commission released the 2003 TCPA Order revising the
TCPA rules to respond to changes in the marketplace for telemarketing.
Specifically, the Commission established in conjunction with the FTC a
National Do-Not-Call Registry for consumers who wish to avoid unwanted
telemarketing calls. The National Do-Not-Call Registry supplements
long-standing company-specific rules which require companies to
maintain lists of consumers who have directed the company not to
contact them by phone.
The 2003 TCPA Order required telemarketers to honor do-not-call
registrations on the National Registry for five years. It also revised
the company-specific do-not-call rules to reduce the retention period
for such do-not-call requests from ten to five years. This Notice
tentatively concludes to amend the Commission's rules so that
registrations with the National Do-Not-Call Registry will not expire
after a period of five years. Telemarketers will instead be required to
honor such registrations until consumers cancel the registrations or
the numbers are removed because they were disconnected or reassigned.
Legal Basis
The proposed action is authorized under sections 1-4, 227, and
303(r) of the Communications Act of 1934, as amended; the Telephone
Consumer Protection Act of 1991, Public Law Number 102-243, 105 Statute
2394; and the Do-Not-Call Implementation Act, Public Law Number 108-10,
117 Statute 557.
Description and Estimate of the Number of Small Entities To Which the
Proposed Rules Will Apply
The RFA directs agencies to provide a description of and, where
feasible, an estimate of the number of small entities that may be
affected by the proposed rules, if adopted. The RFA generally defines
the term ``small entity'' as having the same meaning as the terms
``small business,'' ``small organization,'' and ``small governmental
jurisdiction.'' In addition, the term ``small business'' has the same
meaning as the term ``small business concern'' under the Small Business
Act. A small business concern is one which: (1) Is independently owned
and operated; (2) is not dominant in its field of operation; and (3)
satisfies any additional criteria established by the SBA.
The modifications to the regulations proposed in this item on
telephone solicitation apply to a wide range of entities, including all
entities that use the telephone to advertise. That is, the proposed
rule changes would affect the myriad of businesses throughout the
nation that use telemarketing to advertise. Thus, the Commission
expects that the proposals in the Do-Not-Call Registry NPRM, could have
a significant economic impact on a substantial number of small
entities, including the following:
Interexchange Carriers. Neither the Commission nor the SBA has
developed a specific size standard for small entities specifically
applicable to providers of interexchange services. The closest
applicable size standard under the SBA rules is for Wired
Telecommunications Carriers. Under that standard, such a business is
small if it has 1,500 or fewer employees. According to the FCC's
Telephone Trends Report data, 281 carriers reported that their primary
telecommunications service activity was the provision of interexchange
services. Of these 281 carriers, an estimated 254 have 1,500 or fewer
employees, and 27 have more than 1,500 employees. Consequently, the
Commission estimates that a majority of interexchange carriers may be
affected by the rules.
Incumbent Local Exchange Carriers. Neither the Commission nor the
SBA has developed a small business size standard for providers of
incumbent local exchange services. The closest applicable size standard
under the SBA rules is for Wired Telecommunications Carriers. Under
that standard, such a business is small if it has 1,500 or fewer
employees. According to the FCC's Telephone Trends Report data, 1,310
incumbent local exchange carriers reported that they were engaged in
the provision of local exchange services. Of these 1,310 carriers, an
estimated 1,025 have 1,500 or fewer employees and 285 have more than
1,500 employees. Consequently, the Commission estimates that the
majority of providers of local exchange service are small entities that
may be affected by the rules and policies adopted herein. Wireless
Service Providers. In November of 2007, the SBA developed a small
business size standard for small businesses in the category ``Wireless
Telecommunications Carriers (except satellite).'' Under that SBA
category, a business is small if it has 1,500 or fewer employees. Thus,
under this category and the associated small business size standard,
the great majority of firms can be considered small. For a census
category that existed for a prior version of the NAICS codes, namely
``Cellular and Other Wireless Telecommunications,'' Census Bureau data
for 2002 show that there were 1,397 firms in this category that
operated for the entire year. Of this total, 1,378 firms had employment
of 999 or fewer employees, and 19 firms had employment of 1,000
employees or more. Thus, under this category and size standard, the
great majority of firms can be considered small.
Ordinarily, the Commission does not seek comment on the entities
that must comply with proposed rules. However, the proposed rules in
this document potentially could apply to any entity, including any
telecommunications carrier that uses the telephone to advertise. Thus,
under these unusual circumstances, the Commission seeks comment on
whether the approximately 4.44 million small business firms in the
United States, as identified in SBA data,
[[Page 71102]]
will need to comply with these rules, or whether it is reasonable to
assume that only a subset of them will be subject to these rules given
that not all small businesses use the telephone for advertising
purposes. After evaluating the comments, the Commission will examine
further the effect any rule changes might have on small entities not
named herein, and will set forth our findings in the final Regulatory
Flexibility Analysis.
Description of Projected Reporting, Recordkeeping, and Other Compliance
Requirements for Small Entities
The Do-Not-Call Registry NPRM proposes to amend the National Do-
Not-Call Registry rules to require telemarketers to honor registrations
until consumers cancel their registrations. This proposed rule change
will affect reporting, recordkeeping and other compliance requirements,
as numbers currently registered will not be removed from the Registry
after five years. However, as long as the FTC similarly changes its
policies, we expect that telemarketers would continue to access the
Registry and avoid calling numbers on the Registry as they are required
to do so today.
Steps Taken To Minimize the Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
The RFA requires an agency to describe any significant alternatives
that it has considered in reaching its proposed approach, which may
include the following four alternatives (among others): (1) The
establishment of differing compliance or reporting requirements or
timetables that take into account the resources available to small
entities; (2) the clarification, consolidation, or simplification of
compliance or reporting requirements under the rule for small entities;
(3) the use of performance, rather than design, standards; and (4) an
exemption from coverage of the rule, or any part thereof, for small
entities.
The Commission is considering amending its rules to require
telemarketers to honor national do-not-call registrations indefinitely
and is seeking comment on this option. The alternative would be to not
modify the rules and leave the registration period at 5 years. This
would result is millions of national do-not-call registrations being
removed from the registry in 2008 and leaving consumers without
protection from unwanted telemarketing calls unless they take action to
re-register. Small businesses, which believe the elimination of any
date of expiration for registrations would impact their business in a
negative way, are requested to file comments and advise the Commission
about such an impact.
Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rule
The FCC's TCPA rules and the FTC's Telemarketing Sales Rule are
duplicative in part. Should the Commission determine to amend its rules
and there is no similar amendment made to the FTC's policies, the two
sets of rules may be inconsistent.
Ordering Clauses
Pursuant to sections 1-4, 227, and 303(r) of the Communications Act
of 1934, as amended, 47 U.S.C. 151-154, 227 and 303(r); and Sec.
64.1200 of the Commission's rules, 47 CFR 64.1200, the Do-Not-Call NPRM
in CG Docket No. 02-278 is adopted.
The Commission's Consumer & Governmental Affairs Bureau, Reference
Information Center, SHALL SEND a copy of this Notice of Proposed
Rulemaking, including the Initial Regulatory Flexibility Analysis, to
the Chief Counsel for Advocacy of the Small Business Administration.
Pursuant to applicable procedures set forth in Sec. Sec. 1.415 and
1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested
parties may file comments on the Do-Not-Call Registry NPRM on or before
January 14, 2008, and reply comments on or before January 28, 2008.
List of Subjects in 47 CFR Part 64
Telecommunications, Telephone.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
Proposed Rule Changes
For the reasons discussed in the preamble, the Federal
Communications Commission proposes to amend 47 CFR part 64 as follows:
PART 64--MISCELLANEOUS RULES RELATING TO COMMON CARRIERS
1. The authority citation for part 64 continues to read as follows:
Authority: 47 U.S.C. 154, 254(k); secs. 403(b)(2)(B),(c), Pub.
L. 104-104, 110 Stat. 56. Interpret or apply 47 U.S.C. 201, 218,
222, 225, 226, 228, and 254(k) unless otherwise noted.
2. Section 64.1200 is amended by revising paragraphs (c)(2)
introductory text and (c)(2)(i)(D) to read as follows:
Sec. 64.1200 Delivery restrictions.
* * * * *
(c) * * *
(2) A residential telephone subscriber who has registered his or
her telephone number on the national do-not-call registry of persons
who do not wish to receive telephone solicitations that is maintained
by the federal government. Any person or entity making telephone
solicitations (or on whose behalf telephone solicitations are made)
will not be liable for violating this requirement if:
(i) * * *
(D) Accessing the national do-not-call database. It uses a process
to prevent telephone solicitations to any telephone number on any list
established pursuant to the do-not-call rules, employing a version of
the national do-not-call registry obtained from the administrator of
the registry no more than 31 days prior to the date any call is made,
and maintains records documenting this process; and
Note to paragraph(c)(2)(i)(D): The requirement in paragraph
64.1200(c)(2)(i)(D) for persons or entities to employ a version of the
national do-not-call registry obtained from the administrator no more
than 31 days prior to the date any call is made is effective January 1,
2005. Until January 1, 2005, persons or entities must continue to
employ a version of the registry obtained from the administrator of the
registry no more than three months prior to the date any call is made.
* * * * *
[FR Doc. E7-24280 Filed 12-13-07; 8:45 am]
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