[Federal Register Volume 73, Number 211 (Thursday, October 30, 2008)]
[Rules and Regulations]
[Pages 64556-64558]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-25801]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 64

[CG Docket Nos. 02-278 and 05-338; FCC 08-239]


Rules and Regulations Implementing the Telephone Consumer 
Protection Act of 1991; Junk Fax Prevention Act of 2005

AGENCY: Federal Communications Commission.

ACTION: Final rule; clarification.

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SUMMARY: In this document, the Commission addresses certain issues 
raised in petitions for reconsideration and/or clarification of the 
Report and Order implementing the Junk Fax Prevention Act of 2005. The 
Commission believes the clarifications provided will assist senders of 
facsimile advertisements in complying with the Commission's rules in a 
manner that minimizes regulatory compliance costs while maintaining the 
protections afforded consumers under the Telephone Consumer Protection 
Act (TCPA).

DATES: Effective October 30, 2008.

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 Order on Reconsideration, FCC 
08-239, adopted on October 8, 2008, and released on October 14, 2008. 
The Order on Reconsideration addresses certain issues raised in 
petitions for reconsideration and/or clarification filed in response to 
the Commission's Rules and Regulations Implementing the Telephone 
Consumer Protection Act of 1991; Junk Fax Prevention Act of 2005, CG 
Docket Nos. 02-278 and 05-338, Report and Order and Third Order on 
Reconsideration, document FCC 06-42 (Junk Fax Order), published at 71 
FR 25967, May 3, 2006. Copies of document FCC 08-239 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 08-239 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). Document FCC 08-239 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 08-239 does not contain any new or modified 
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 44 U.S.C. 
3506(c)(4).

Synopsis

    1. In document FCC 08-239, the Commission clarifies that: (1) 
Facsimile numbers compiled by third parties on behalf of the facsimile 
sender will be presumed to have been made voluntarily available for 
public distribution so long as they are obtained from the intended 
recipient's own directory, advertisement, or Internet site; (2) 
reasonable steps to verify that a recipient has agreed to make 
available a facsimile number for public distribution may include 
methods other than direct contact with the recipient; and (3) a 
description of the facsimile sender's opt-out mechanism on the first 
Web page to which recipients are directed in the opt-out notice 
satisfies the requirement that such a description appear on the first 
page of the Web site. The Commission believes these clarifications will 
assist senders of facsimile advertisements in complying with the 
Commission's rules in a manner that minimizes regulatory compliance 
costs while maintaining the protections afforded consumers under the 
Telephone Consumer Protection Act (TCPA).

Junk Fax Prevention Act of 2005

    2. On April 6, 2006, as required by the Junk Fax Prevention Act, 
the Commission released the Junk Fax Order amending its rules on 
unsolicited facsimile advertisements. In so doing, the Commission 
adopted the requirements of that statute virtually verbatim. As 
relevant here, the Junk Fax Prevention Act allows a sender that has an 
established business relationship (EBR) with the recipient to send an 
unsolicited facsimile advertisement if the sender obtained the number 
of the facsimile machine through: (1) The voluntary communication of 
such number, within the context of the EBR, from the recipient of the 
facsimile advertisement, or (2) a directory, advertisement, or site on 
the Internet to which the recipient voluntarily agreed to make 
available its facsimile number for public distribution. For this second 
category of facsimile numbers, the Commission found that it would be 
unduly burdensome for senders of facsimile advertisements to verify 
that the recipient voluntarily agreed to make the facsimile number 
public in every instance. As a result, the Commission concluded that 
``a facsimile number obtained from the recipient's own directory, 
advertisement, or internet site was voluntarily made available for 
public distribution, unless the recipient has noted on such materials 
that it does not accept unsolicited advertisements'' at that number. 
The Commission noted, however, that if a sender obtains the facsimile 
number from sources of information compiled by third parties--such as 
membership directories and commercial databases, the sender ``must take 
reasonable steps to verify that the recipient consented to have the 
number listed, such as calling or emailing the recipient.''
    3. The Junk Fax Prevention Act also requires that all unsolicited 
facsimile advertisements include an opt-out notice that instructs 
recipients on how to notify senders that they do not wish to receive 
future facsimile advertisements. Among other requirements, the opt-out 
notice must identify a ``cost-free'' mechanism by which recipients can 
transmit their opt-out requests. The Commission concluded that, if a 
sender designates a Web site as its cost free opt-out mechanism, a 
description of the opt-out mechanism and procedures must be included 
``clearly and conspicuously on the first page of the Web site.'' The 
Commission also clarified that, in accordance with the Junk Fax

[[Page 64557]]

Prevention Act, if there are several pages to the facsimile, the first 
page of the advertisement must contain the opt-out notice. In so doing, 
the Commission declined to find that the ``first page'' notice 
requirement was satisfied by including the notice on a cover page. 
Rather, the Commission required that the opt-out notice appear on the 
first page of the advertisement itself. Finally, the Commission 
declined to limit the time period during which a request to opt out 
from receiving unsolicited facsimile advertisements remains in effect. 
The Commission concluded that requiring consumers to repeat their opt-
out requests to potentially hundreds of senders of unsolicited 
facsimile advertisements would be overly burdensome to recipients. 
Therefore, once an opt-out request has been received, the sender is 
prohibited from transmitting facsimile advertisements to that number 
until the sender obtains the prior express permission of the recipient 
to resume sending facsimile advertisements.

Petitions for Reconsideration

    4. On June 2, 2006, two petitions for reconsideration and 
clarification were filed in response to the Junk Fax Order. 
Specifically, the Direct Marketing Association (DMA) seeks 
clarification that the Junk Fax Order does not prohibit the use of 
third-party agents to perform services that an organization would 
otherwise be permitted to conduct internally. In addition, DMA urges 
the Commission to make clear that when a sender does elect to use 
facsimile numbers collected independently from a third party source 
such as a membership directory, that ``reasonable steps'' to verify the 
number was provided voluntarily may include measures that do not 
involve direct contact with the intended recipient. Finally, DMA 
requests that the Commission reconsider the decision not to limit the 
time period for which an opt-out request remains in effect.
    5. Leventhal Senter and Lerman PLLC (LS&L), on behalf of certain 
unnamed broadcast clients, seeks reconsideration or clarification of 
two issues relating to the opt-out notice. First, LS&L requests that 
the Commission clarify that the requirement that a clear and 
conspicuous description of the opt-out mechanism appear on the Web 
site's first page is met when ``a dedicated opt-out page [is] specified 
by URL in the opt-out notice'' that appears in the facsimile 
advertisement. In addition, LS&L suggests that a link could be included 
on the Web site's homepage to direct recipients to the appropriate 
internal Web page. Second, LS&L requests that a properly formatted opt-
out notice included on a facsimile cover page complies with the 
requirement that such opt-out notice appear on the ``first page of the 
advertisement.''

Established Business Relationship

Facsimile Numbers Obtained From the Recipient's Own Directory, 
Advertisement or Internet Site

    6. Consistent with the Commission's conclusion in the Junk Fax 
Order, the Commission reiterates that facsimile numbers compiled on 
behalf of the facsimile sender will be presumed to have been 
voluntarily made available for public distribution so long as they are 
obtained from the intended recipient's own directory, advertisement or 
Internet site. In so doing, the Commission agrees with DMA that it did 
not limit this presumption to only those situations in which the sender 
compiles this information through ``in-house'' employees. Rather, it is 
the source from which the facsimile number is obtained, and not the 
identity of the compiler, that provides evidence of whether the 
recipient intended to make that number available for public 
distribution. Therefore, no additional verification that the recipient 
has voluntarily made available his or her facsimile number is required 
if the number is obtained from the recipient's own directory, 
advertisement or Internet site. However, the Commission cautions that a 
sender that uses a third party to compile facsimile numbers will be 
liable for the errors of its third-party agent or contractor. The 
Commission also reiterates that senders of facsimile advertisements 
must have an EBR with the recipient in order to send the advertisement 
to the recipient's facsimile number. The fact that the facsimile number 
was made available in the recipient's own directory, advertisement or 
Web site does not alone entitle a sender to transmit a facsimile 
advertisement to that number.

Reasonable Steps to Verify That the Recipient Has Voluntarily Made 
Available a Facsimile Number

    7. The Commission clarifies that ``reasonable steps'' under its 
rules to verify that a recipient has agreed to make available a 
facsimile number for public distribution may include methods other than 
calling or e-mailing the recipient directly. The Commission cited these 
verification methods in the Junk Fax Order as examples that satisfy 
this requirement. The Commission did not, however, limit parties in 
this context only to means of direct contact with the recipient.
    8. The Commission agrees with DMA that it is possible that the 
circumstances attending the collection of a facsimile number can 
provide sufficient evidence that the number has been provided 
voluntarily for public distribution without the necessity of contacting 
the recipient. For example, the recipient may expressly agree at the 
point of collection to allow for public disclosure of the facsimile 
number. The Commission cautions, however, that should a complaint arise 
on this issue, the facsimile sender has the burden to demonstrate that 
the circumstances surrounding the acquisition of the facsimile number 
reasonably indicate that the recipient agreed to make the facsimile 
number available for public distribution.

Notice of Opt-Out Opportunity

Location of the Opt-Out Mechanism on the Web site's First Page

    9. The Commission clarifies that a facsimile sender satisfies the 
requirement to provide clear and conspicuous notice of a cost-free 
mechanism for transmitting opt-out requests when the opt-out notice 
directs the recipient to a dedicated Web page that allows the recipient 
to opt-out of future facsimile advertisements. The Commission's rules 
require that all facsimile advertisements include an opt-out notice by 
which recipients can inform senders that they do not wish to receive 
future unsolicited advertisements. The notice must include a domestic 
telephone number and facsimile number for the recipient to transmit an 
opt-out request. If neither the required telephone number nor facsimile 
number is a toll free number, a separate cost-free mechanism must be 
provided for the recipient to transmit the opt-out request. In the Junk 
Fax Order, the Commission noted that, if the sender designates a Web 
site as its cost-free opt-out mechanism, a description of the mechanism 
must be included clearly and conspicuously on the first page of the Web 
site.
    10. The Commission clarifies that a description of the facsimile 
sender's opt-out mechanism on the first Web page to which recipients 
are directed in the opt-out notice satisfies the requirement that such 
a description appear on the ``first page'' of the Web site. In 
addition, a clear and conspicuous link should be provided on the Web 
site's homepage to direct recipients to the appropriate internal opt-
out Web page. The Commission agrees with LS&L, however, that it did not 
intend to mandate that the entire opt-out mechanism must appear on the

[[Page 64558]]

homepage of every sender of unsolicited facsimile advertisements. 
Rather, the intent of this requirement is to provide a reasonable means 
for recipients to locate the facsimile sender's opt-out mechanism and 
make requests to avoid future unwanted facsimiles. The Commission 
believes this interpretation of the ``first'' Web page requirement 
adequately ensures that recipients can locate the opt-out mechanism 
while providing flexibility to facsimile senders in designing their Web 
sites in the most cost-effective manner to comply with this 
requirement.

Facsimile Cover Page

    11. The Commission declines to reconsider its decision that the 
first page of the facsimile advertisement must contain the opt-out 
notice. In so doing, the Commission notes that the Junk Fax Prevention 
Act requires that ``the notice is clear and conspicuous and on the 
first page of the unsolicited advertisement.'' Specifically, the 
Commission declines to find that placement of the opt-out notice on a 
cover sheet that accompanies the facsimile advertisement satisfies this 
requirement. The Commission specifically addressed this issue in the 
Junk Fax Order, and petitioners provide no new information or evidence 
that leads the Commission to now reconsider this conclusion.

Duration of Opt-Out Requests

    12. The Commission declines to reconsider its decision not to limit 
the duration for which a request to opt-out from receiving unsolicited 
facsimile advertisements remains in effect. Here too the Commission 
directly addressed this issue in the Junk Fax Order, and petitioners 
provide no new evidence or arguments on reconsideration that lead us to 
reconsider this finding. The Commission has considered arguments that 
facsimile numbers may change hands over time and that those who make 
the opt-out request could, at some point, no longer be the same parties 
associated with those telephone numbers. The Commission has concluded, 
however, that these concerns are outweighed by the potential burdens 
imposed on those recipients that would otherwise be forced to repeat 
their opt-out requests to potentially hundreds of facsimile senders. 
The Commission disagrees with DMA's contention that opt-out requests 
from facsimile recipients should be limited in duration in the same 
manner as do-not-call requests. The Commission notes that, unlike the 
rules on telephone solicitations, once an EBR has been established for 
purposes of allowing the transmission of facsimile advertisements, it 
remains in effect indefinitely until the recipient affirmatively opts-
out from receiving future advertisements.
    13. In contrast, the Commission's rules limit the duration of an 
EBR exemption in the case of telephone solicitations to no longer than 
18 months after a purchase or transaction or three months following an 
application or inquiry. Thus, the EBR will expire automatically in the 
case of telephone solicitations without any further action by the 
consumer. In addition, recipients of facsimile advertisements assume 
the cost of the paper used, the cost associated with the use of the 
facsimile machine, and the costs associated with the time spent 
receiving a facsimile advertisement during which the machine cannot be 
used by its owner to send or receive other facsimile transmissions. The 
Commission believes that protecting recipients from the direct costs 
imposed by unwanted facsimile transmissions is best achieved by 
declining to limit the duration of an opt-out request.

Regulatory Flexibility Analysis

    The Commission notes that no Final Regulatory Flexibility Analysis 
is necessary for the document FCC 08-239, as it is not making any 
changes to the Commission's rules.

Congressional Review Act

    The Commission will send a copy of document FCC 08-239 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); Sec.  1.429 of 
the Commission's rules, 47 CFR 1.429; and Sec.  64.1200 of the 
Commission's rules, 47 CFR 64.1200, the Order on Reconsideration in CG 
Docket Nos. 02-278 and 05-338 is adopted.
    Petitions for reconsideration and/or clarification filed by the 
Direct Marketing Association and Leventhal Senter and Lerman PLLC in CG 
Docket Nos. 02-278 and 05-338 are denied in part and granted in part. 
The Commission's Consumer & Governmental Affairs Bureau, Reference 
Information Center, shall send a copy of this Order on Reconsideration, 
to the Chief Counsel for Advocacy of the Small Business Administration.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. E8-25801 Filed 10-29-08; 8:45 am]
BILLING CODE 6712-01-P