[Federal Register Volume 73, Number 135 (Monday, July 14, 2008)]
[Rules and Regulations]
[Pages 40183-40186]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-15994]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 64

[CG Docket No. 02-278; FCC 08-147]


Rules and Regulations Implementing the Telephone Consumer 
Protection Act of 1991

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document, the Commission amends its rules under the 
Telephone Consumer Protection Act (TCPA) to require telemarketers to 
honor registrations with the National Do-Not-Call Registry 
indefinitely. This action is consistent with Congress's mandate in the 
Do-Not-Call Improvement Act of 2007, which prohibits the removal of 
numbers from the Registry unless the consumer cancels the registration 
or the number has been disconnected and reassigned or is otherwise 
invalid. The Commission also will continue to coordinate with the FTC 
on additional ways to improve the Registry's accuracy.

DATES: 47 CFR 64.1200 (c)(2) contains information collection 
requirements that have not been approved by the Office of Management 
and Budget (OMB). The Commission will publish a separate document in 
the Federal Register announcing the effective date for the amendment 
and information collection requirements. Interested parties (including 
the general public, OMB, and other Federal agencies) that wish to 
submit written comments on the PRA information collection requirements 
must do so on or before September 12, 2008.

ADDRESSES: Interested parties may submit PRA comments identified by OMB 
Control Number 3060-0519, 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.
     E-mail: Parties who choose to file by e-mail should submit 
their comments to [email protected]. Please include CG Docket Number 02-278 
and OMB Control Number 3060-0519 in the subject line of the message.
     Mail: Parties who choose to file by paper should submit 
their comments to Cathy Williams, Federal Communications Commission, 
Room 1-C823, 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: This is a summary of the Commission's 
document Rules and Regulations Implementing the Telephone Consumer 
Protection Act (TCPA) of 1991, Do-Not-Call Registry, Report and Order 
(DNC Report and Order), FCC 08-147, adopted on June 11, 2008, and 
released on June 17, 2008. FCC 08-147 addresses issues arising from the 
Commission's Rules and Regulations Implementing the TCPA of 1991, Do-
Not-Call Registry, Notice of Proposed Rulemaking, (DNC NPRM), FCC 07-
203, released on December 4, 2007, published at 72 FR 71099, December 
14, 2007, in which the Commission sought comment on its tentative 
conclusion that registrations with the National Do-Not-Call Registry 
should be honored indefinitely. The full text of document FCC 08-147 
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 FCC 08-147 
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: 
http://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). FCC 08-147 can also be downloaded in 
Word and Portable Document Format (PDF) at: http://www.fcc.gov/cgb/policy.

Paperwork Reduction Act of 1995 Analysis

    FCC 08-147 contains modified information collection requirements 
subject to the PRA of 1995. It will be submitted to OMB for review 
under section 3507 of the PRA. OMB, the general public, and other 
Federal agencies are invited to comment on the modified information 
collection requirements contained in this proceeding. Public and agency 
comments are due September 12, 2008.
    In addition, pursuant to the Small Business Paperwork Review Act of 
2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), the Commission has 
assessed the effect of rule changes and find that there likely will be 
an increased administrative burden on businesses with fewer than 25 
employees. The Commission has taken steps, however, to minimize the 
information collection burden for small business concerns, including 
those with fewer than 25 employees. In this present document, we have 
assessed the effect of these rule changes and find that there likely 
will be an increased administrative burden on businesses with fewer 
than 25 employees. However, the amended rules do not require the 
maintenance of any additional records or require entities to alter 
their current practices to comply with the National Do-Not-Call 
Registry. These measures should substantially alleviate any burdens on 
businesses with fewer than 25 employees.

Synopsis

    In the DNC Report and Order, the Commission amends its rules under 
the TCPA to require sellers and/or telemarketers to honor registrations 
with the National Do-Not-Call Registry so that registrations will not 
automatically expire based on the current five year registration 
period. Consistent with the Do Not Call Improvement Act of 2007 (DNC 
Act), the Commission extends 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. The Commission recognizes the importance of maintaining an 
accurate Do-Not-Call Registry. The DNC Act provides that the FTC shall 
periodically check the numbers in the Registry and purge those numbers 
that have been disconnected and reassigned. Currently, the database 
administrator checks all telephone numbers in the Registry once a month 
against national databases to remove any disconnected and reassigned

[[Page 40184]]

numbers. The Commission intends to work closely with the FTC to 
consider options to enhance the Registry's accuracy, including whether 
scrubbing the database more frequently is possible and might improve 
the overall accuracy of the database. The Commission also encourages 
local exchange carriers (LECs) to report information on disconnected 
and reassigned numbers to the FTC subcontractor as timely as possible 
so that such numbers might be purged more than once per month. The 
Commission does not believe that the amended rules will be burdensome 
for sellers and/or telemarketers, including small businesses. Small 
businesses can continue to access the Registry on an area-code-by-area-
code basis and need only purchase those area codes in which the seller 
intends to telemarket. In addition, the national database provides a 
single number feature whereby a small number of telephone numbers can 
be entered on a web page to determine whether any of those numbers are 
included on the Registry.
    The Commission concludes that eliminating the need for consumers to 
re-register their numbers will enhance consumer privacy protections and 
benefit the federal government in administering the National Registry. 
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.

Regulatory Flexibility Analysis

    As required by the Regulatory Flexibility Act of 1980, as amended 
(RFA), an Initial Regulatory Flexibility Analysis (IRFA) was 
incorporated in DNC NPRM, released by the Commission on December 4, 
2007. The Commission sought written public comment on the proposals 
contained in the Notice, including comment on the IRFA. Comments filed 
in this proceeding that address the impact of the proposed rules and 
policies on small entities are discussed below.

Need for, and Objectives of, the Adopted Rules

    In 2003, the Commission released the Rules and Regulations 
Implementing the TCPA of 1991, Do-Not-Call Registry, Report and Order, 
(2003 TCPA Order), published at 68 FR 44144, July 25, 2003, revising 
the TCPA rules to respond to changes in the marketplace for 
telemarketing. Specifically, the Commission established, in conjunction 
with the Federal Trade Commission (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.
    On December 4, 2007, the Commission released the DNC NPRM seeking 
comment on its tentative conclusion that registrations with the 
Registry should be honored indefinitely, unless a number is 
disconnected or reassigned or the consumer cancels his registration. 
Subsequently, on February 15, 2007, Congress enacted the Do-Not-Call 
Improvement Act of 2007 (DNC Act), which prohibits the automatic 
removal of registered numbers, unless a number has been disconnected, 
reassigned, or is otherwise invalid. The DNC Report and Order amends 
the Commission's rules so that registrations with the National Do-Not-
Call Registry will not expire after a period of five years, consistent 
with the DNC Act and FTC policy. This action will benefit consumers, 
who will no longer be required to re-register every five years, thereby 
reducing any burdens on consumers in terms of the time and effort 
required to register and the need to remember when to re-register.

Summary of Significant Issues Raised by Public Comments in Response to 
the IRFA

    No comments were filed in response to the IRFA directly. However, 
in response to the DNC NPRM, some commenters raised concerns about the 
impact of the Commission's proposed rule changes on small businesses. 
The National Association of Realtors (NAR) argued that requiring 
telemarketers to honor registrations indefinitely will result in 
increased economic burdens for small businesses. The American 
Teleservices Association contended that the rule change will lead to a 
larger Registry, and consequently larger Registry file sizes, which 
will adversely impact small businesses due to their limited resources. 
Others argued that the rule change would have a negligible effect on 
small businesses. NASUCA and the Nebraska Public Services Commission 
pointed out, for example, that small businesses will be required to 
access the Registry and avoid calling numbers in the Registry just as 
they do today.

Description and Estimate of the Number of Small Entities to Which the 
Adopted Rules 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. 5 U.S.C. 603(b)(3). The RFA 
generally defines the term ``small entity'' as having the same meaning 
as the terms ``small business,'' ``small organization,'' and ``small 
governmental jurisdiction.'' 5 U.S.C. 601(6). In addition, the term 
``small business'' has the same meaning as the term ``small business 
concern'' under the Small Business Act. 5 U.S.C. 601(3). 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. Small Business Act, 15 
U.S.C. 632 (1996).
    The modifications to the regulations adopted in this item apply to 
a wide range of entities, including all entities that use the telephone 
to advertise. That is, the rule changes affect the myriad of businesses 
throughout the nation that telemarket and, therefore, must access the 
National Registry to avoid calling registered numbers, 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. 13 CFR 121.201, NAICS code 
517110. 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. 13 CFR 121.201, NAICS code 517110. According to the FCC's 
Telephone Trends Report data, 1,310 incumbent local exchange carriers

[[Page 40185]]

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).'' 13 CFR 
121.201, NAICS code 517210. 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 majority of firms can be considered 
small.

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements for Small Entities

    The DNC Report and Order amends the Commission's rules to require 
sellers and/or telemarketers to honor registrations on the National Do-
Not-Call Registry until the registration is either cancelled by the 
consumer or the number is removed by the database administrator. This 
rule change will affect compliance requirements, as numbers currently 
registered will not be automatically removed from the Registry five 
years after they were registered. However, the Commission expects that 
sellers and/or telemarketers will continue to access the Registry and 
avoid calling numbers on the Registry as they do today. There are no 
new or additional reporting or recordkeeping requirements associated 
with the amended rules.

Steps Taken To Minimize Significant 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. See 5 U.S.C. 603(c).
    In the DNC Report and Order, the Commission amends its rules to 
require sellers and/or telemarketers to honor national do-not-call 
registrations indefinitely. The alternative would be to not modify the 
rules and leave the period for honoring registrations at 5 years for 
sellers and/or telemarketers subject to our rules. This would result in 
the Commission's rules being inconsistent with FTC policy and 
Congress's mandate in the DNC Improvement Act to not remove numbers 
after 5 years.
    The Commission considered the burdens to small businesses of having 
to comply with these amended rules. The record revealed that some 
commenters suspected that the Commission's proposed rule change would 
negatively impact small businesses. They argued that small businesses 
would have to purchase additional storage space and experience 
lengthier download times to accommodate the increased size of the 
Registry. Commenters also feared that numbers that had been 
disconnected or reassigned would not be purged from the Registry in a 
timely manner. The Commission considered these concerns and concluded 
that the rule change will not be overly burdensome for small entities. 
Such entities will be required to continue to access the Registry as 
they do today. Small businesses can obtain the data on an area-code-by-
area-code basis and need only purchase those area codes in which they 
intend to telemarket. In addition, the Commission found that the rule 
change's benefits to the public and to consumer privacy interests 
outweighed the potential negative effect on small businesses of 
eliminating the 5-year registration period. Consumers will no longer be 
required to re-register every 5 years or need to remember when and how 
to re-register. In response to concerns about the accuracy of the 
Registry, the Commission notes that Congress requires the FTC to check 
the database and remove disconnected and reassigned numbers. In 
addition, the Commission encourages LECs to provide information to the 
database administrator timely and accurately to enhance the FTC's 
ability to remove disconnected and reassigned numbers, thereby 
improving the overall accuracy of the Registry. The Commission also 
encourages parties to submit additional proposals directly to the FTC 
for consideration.

Congressional Review Act

    The Commission will send a copy of the DNC Report and Order in a 
report to be sent to Congress and the Government Accountability Office 
pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

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 DNC Report and 
Order in CG Docket No. 02-278 is adopted, and Part 64 of the 
Commission's rules, 47 CFR 64.1200, is amended.
    The DNC Report and Order shall be effective July 14, 2008, except 
Sec.  64.1200(c)(2) of the Commission's rules, which contains 
information collection requirements that are not effective until 
approval by OMB. The Commission will publish a document in the Federal 
Register announcing the effective date of the amended rule.
    The Commission's Consumer & Governmental Affairs Bureau, Reference 
Information Center, shall send a copy of this Report and Order, 
including the Final Regulatory Flexibility Analysis (FRFA), to the 
Chief Counsel for Advocacy of the Small Business Administration.

List of Subjects in 47 CFR Part 64

    Telecommunications, Telephone.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.

Rule Changes

0
For the reasons discussed in the preamble, the Federal Communications 
Commission amends 47 CFR part 64 as follows:

PART 64--MISCELLANEOUS RULES RELATING TO COMMON CARRIERS

0
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.


0
2. Section 64.1200 is amended by revising paragraph (c)(2) introductory 
text to read as follows:

[[Page 40186]]

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. Such do-not-call registrations must be 
honored indefinitely, or until the registration is cancelled by the 
consumer or the telephone number is removed by the database 
administrator. Any person or entity making telephone solicitations (or 
on whose behalf telephone solicitations are made) will not be liable 
for violating this requirement if:
* * * * *
[FR Doc. E8-15994 Filed 7-11-08; 8:45 am]
BILLING CODE 6712-01-P