[Federal Register Volume 73, Number 22 (Friday, February 1, 2008)]
[Rules and Regulations]
[Pages 6041-6042]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-1891]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 64

[CG Docket No. 02-278; FCC 07-232]


Rules and Regulations Implementing the Telephone Consumer 
Protection Act of 1991

AGENCY: Federal Communications Commission.

ACTION: Clarification.

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SUMMARY: In this document, the Commission addresses a Petition for 
Expedited Clarification and Declaratory Ruling filed by ACA 
International (ACA). Specifically, the Commission clarifies that 
autodialed and prerecorded message calls to wireless numbers that are 
provided by the called party to a creditor in connection with an 
existing debt are permissible as calls made with the ``prior express 
consent'' of the called party.

DATES: Effective February 1, 2008.

ADDRESSES: Federal Communications Commission, 445 12th Street, SW., 
Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT: Erica McMahon, Consumer & Governmental 
Affairs Bureau at (202) 418-0346 (voice), or e-mail 
[email protected].

SUPPLEMENTARY INFORMATION: On October 4, 2005, ACA filed a petition for 
expedited clarification and declaratory ruling against the Commission's 
Rules and Regulations Implementing the Telephone Consumer Protection 
Act of 1991, Report and Order, FCC 03-153, published at 68 FR 44144 
(July 25, 2003). This is a summary of the Commission's document, FCC 
07-232, adopted December 28, 2007, released January 4, 2008, addressing 
a Petition for Expedited Clarification and Declaratory Ruling filed by 
ACA International (ACA).
    Copies of document FCC 07-232 and 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 FCC 07-232 and any subsequently filed documents in this matter 
may also be purchased from the Commission's duplicating contractor at 
Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554. 
Customers may contact the Commission's duplicating contractor at their 
Web site: www.bcpiweb.com or call 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). Document FCC 07-232 can 
also be downloaded in Word and Portable Document Format (PDF) at: 
http://www.fcc.gov/cgb/policy.

Paperwork Reduction Act of 1995 Analysis

    Document FCC 07-232 does not contain new information collection 
requirements subject to the Paperwork Reduction Act of 1995 (PRA), 
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 47 U.S.C. 3506(c)(4).

Synopsis

    On October 4, 2005, ACA filed a petition seeking clarification that 
the prohibition against autodialed or prerecorded calls to wireless 
telephone numbers in 47 CFR 64.1200(a)(1)(iii) of the Commission's 
rules does not apply to creditors and collectors when calling wireless 
telephone numbers to recover payments for goods and services received 
by consumers.
    Although the TCPA generally prohibits autodialed calls to wireless 
phones, it also provides an exception for autodialed and prerecorded 
message calls for emergency purposes or made with the prior express 
consent of the called party. Because the Commission finds that 
autodialed and prerecorded message calls to wireless numbers provided 
by the called party in connection with an existing debt are made with 
the ``prior express consent'' of the called party, the Commission 
clarifies that such calls are permissible. The Commission concludes 
that the provision of a cell phone number to a creditor, e.g., as part 
of a credit application, reasonably evidences prior express consent by 
the cell phone subscriber to be contacted at that number regarding the 
debt. In the 1992 TCPA Order (FCC 92-443) published at 57 FR 48333 
(October 23, 1992), the Commission determined that ``persons who 
knowingly release their phone numbers have in effect given their 
invitation or permission to be called at the number which they have 
given, absent instructions to the contrary.'' The legislative history 
in the TCPA provides support for this interpretation. Specifically, the 
House report on what

[[Page 6042]]

ultimately became section 227 of the Communications Act states that: 
``[t]he restriction on calls to emergency lines, pagers, and the like 
does not apply when the called party has provided the telephone number 
of such a line to the caller for use in normal business 
communications.''
    The Commission emphasizes that prior express consent is deemed to 
be granted only if the wireless number was provided by the consumer to 
the creditor, and that such number was provided during the transaction 
that resulted in the debt owed. To ensure that creditors and debt 
collectors call only those consumers who have consented to receive 
autodialed and prerecorded message calls, the Commission concludes that 
the creditor should be responsible for demonstrating that the consumer 
provided prior express consent. The creditors are in the best position 
to have records kept in the usual course of business showing such 
consent, such as purchase agreements, sales slips, and credit 
applications. The Commission encourages creditors to include language 
on credit applications and other documents informing the consumer that, 
by providing a wireless telephone number, the consumer consents to 
receiving autodialed and prerecorded message calls from the creditor or 
its third party debt collector at that number. Should a question arise 
as to whether express consent was provided, the burden will be on the 
creditor to show it obtained the necessary prior express consent. 
Similarly, a creditor on whose behalf an autodialed or prerecorded 
message call is made to a wireless number bears the responsibility for 
any violation of the Commission's rules. Calls placed by a third party 
collector on behalf of that creditor are treated as if the creditor 
itself placed the call. A third party collector may also be liable for 
a violation of the Commission's rules. In addition, prior express 
consent provided to a particular creditor will not entitle that 
creditor (or third party collector) to call a consumer's wireless 
number on behalf of other creditors, including on behalf of affiliated 
entities.
    The Commission also reiterates that the plain language of section 
227(b)(1)(A)(iii) of the Communications Act prohibits the use of 
autodialers to make any call to a wireless number in the absence of an 
emergency or the prior express consent of the called party. The 
Commission notes that this prohibition applies regardless of the 
content of the call, and is not limited only to calls that constitute 
``telephone solicitations.''
    However, the Commission agrees with ACA and other commenters that 
calls solely for the purpose of debt collection are not telephone 
solicitations and do not constitute telemarketing. Therefore, calls 
regarding debt collection or to recover payments are not subject to the 
TCPA's separate restrictions on ``telephone solicitations.''
    In document FCC 07-232, the Commission affirms that a predictive 
dialer constitutes an automatic telephone dialing system and is subject 
to the TCPA's restrictions on the use of autodialers. In its 
Supplemental Submission, ACA argues that the Commission erred in 
concluding that the term ``automatic telephone dialing system'' 
includes a predictive dialer. ACA states that debt collectors use 
predictive dialers to call specific numbers provided by established 
customers, and that a predictive dialer meets the definition of 
autodialer only when it randomly or sequentially generates telephone 
numbers, not when it dials numbers from customer telephone lists.
    As noted above, the Commission first sought comment on predictive 
dialers in 2002 and asked whether using a predictive dialer is subject 
to the TCPA's autodialer restrictions. The Commission found that, based 
on the statutory definition of ``automatic telephone dialing system,'' 
the TCPA's legislative history, and current industry practice and 
technology, a predictive dialer falls within the meaning and definition 
of autodialer and the intent of Congress. The Commission noted that the 
evolution of the teleservices industry had progressed to the point 
where dialing lists of numbers was far more cost effective, but that 
the basic function of such dialing equipment, had not changed--the 
capacity to dial numbers without human intervention. The Commission 
noted that it expected such automated dialing technology to continue to 
develop and that Congress had clearly anticipated that the FCC might 
need to consider changes in technology.
    Moreover, the Commission noted that the TCPA does not ban the use 
of automated dialing technology. It merely prohibits such technologies 
from dialing emergency numbers, health care facilities, telephone 
numbers assigned to wireless services, and any other numbers for which 
the consumer is charged for the call. Such practices were determined by 
Congress to threaten public safety and inappropriately shift costs to 
consumers. Most importantly, the Commission said that, to find that 
calls to emergency numbers, health care facilities, and wireless 
numbers are permissible when the dialing equipment is paired with 
predictive dialing software and a database of numbers, but prohibited 
when the equipment operates independently of such lists, would be 
inconsistent with the avowed purpose of the TCPA and the intent of 
Congress in protecting consumers from such calls. ACA raises no new 
information about predictive dialers that warrants reconsideration of 
these findings. With this ruling, however, creditors and debt 
collectors may use predictive dialers to call wireless phones, provided 
the wireless phone number was provided by the subscriber in connection 
with the existing debt. The Commission notes, however, that where the 
subscriber has not made the number available to the creditor regarding 
the debt, we expect debt collectors to be able to utilize the same 
methods and resources that telemarketers have found adequate to 
determine which numbers are assigned to wireless carriers, and to 
comply with the TCPA's prohibition on telephone calls using an 
autodialer or an artificial or prerecorded voice message to wireless 
numbers.

Congressional Review Act

    The Commission will not send a copy of document FCC 07-232 pursuant 
to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A), because no 
new rules were adopted in the document.

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, document FCC 07-232 
is adopted.
    By Commission authority, the Request for Clarification filed by ACA 
International in CG Docket 02-278 on October 4, 2005 and supplemented 
by ACA on April 26, 2006, is granted insofar as ACA seeks clarification 
that autodialed and prerecorded message calls to wireless numbers that 
are provided by the called party to a creditor in connection with an 
existing debt are permissible as calls made with the ``prior express 
consent'' of the called party, and in all other respects, is denied.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.
 [FR Doc. E8-1891 Filed 1-31-08; 8:45 am]
BILLING CODE 6712-01-P