[Federal Register Volume 88, Number 13 (Friday, January 20, 2023)]
[Rules and Regulations]
[Pages 3668-3677]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-00635]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 64

[CG Docket No. 02-278; FCC 22-100; FR ID 122724 ]


Limits on Exempted Calls Under the Telephone Consumer Protection 
Act of 1991

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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[[Page 3669]]

SUMMARY: In this document, the Federal Communications Commission 
(Commission or FCC) amends its rules to allow callers the option of 
obtaining either oral or written consent if they wish to make more 
calls than the numerical limits on exempted artificial or prerecorded 
voice message calls to residential telephone lines and affirms the 
numerical limits and opt-out requirements on such calls.

DATES: Effective date: July 20, 2023.

FOR FURTHER INFORMATION CONTACT: Richard D. Smith of the Consumer and 
Governmental Affairs Bureau at (717) 338-2797 or fcc.gov">Richard.Smith@fcc.gov. 
For information regarding the Paperwork Reduction Act (PRA) information 
collection requirements contained in the PRA, contact Cathy Williams, 
Office of Managing Director, at (202) 418-2918, or 
fcc.gov">Cathy.Williams@fcc.gov.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order 
on Reconsideration and Declaratory Ruling (Order on Reconsideration) in 
CG Docket No. 02-278; FCC 22-100, adopted on December 22, 2022, and 
released on December 27, 2022. The full text of document FCC 22-100 is 
available online at ECFS--Filing Details (fcc.gov) or https://docs.fcc.gov/public/attachments/FCC-22-100A1.pdf. To request this 
document in accessible formats for people with disabilities (e.g., 
Braille, large print, electronic files, audio format) or to request 
reasonable accommodations (e.g., accessible format documents, sign 
language interpreters, CART), send an email to fcc.gov">fcc504@fcc.gov or call 
the FCC's Consumer and Governmental Affairs Bureau at (202) 418-0530 
(voice).

Final Paperwork Reduction Act of 1995 Analysis

    The Order on Reconsideration contains non-substantive modifications 
to information collection requirements subject to the Paperwork 
Reduction Act of 1995 (PRA), Public Law 104-13. On January 4, 2023, 
these modifications were submitted to the Office of Management and 
Budget (OMB) and approved as non-substantive changes. Because these 
changes are non-substantive, there is no 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.

Congressional Review Act

    The Commission sent a copy of document FCC 22-100 to Congress and 
the Government Accountability Office pursuant to the Congressional 
Review Act, 5 U.S.C. 801(a)(1)(A).

Synopsis

    1. On reconsideration of the Telephone Consumer Protection Act 
(TCPA) Exemptions Order, CG Docket No. 02-278, Report and Order, 
published at 86 FR 11443 (Feb. 25, 2021), we revise the Commission's 
rule requiring prior express written consent to make informational 
calls over the numerical limits to permit such callers to obtain the 
necessary consent either orally or in writing. We decline, however, to 
revise any of the numerical limitations on the number of exempt non-
telemarketing calls to residential lines that we established in the 
TCPA Exemptions Order. We also conclude that the differing numerical 
limitations for different categories of exempt calls to residential 
lines are both constitutional and necessary to advance the health and 
safety of consumers. We also retain the opt-out requirements for exempt 
informational calls. Finally, we decline to revisit the limitations on 
package delivery notifications to wireless numbers that have been in 
place since 2015 and confirm that the Commission's 2016 declaratory 
ruling on calls by utilities to wireless numbers applies equally to 
similar calls made to residential lines.

A. Consent Requirements for Exempted Calls to Residential Lines

    2. We grant petitioners' request that we clarify that callers may 
obtain consent either orally or in writing to exceed the numerical 
limits on artificial or prerecorded voice calls to residential 
telephone lines made under the exemptions contained in Sec.  
64.1200(a)(3)(ii) through (v) of our rules. We agree with the 
petitioners and commenters, including both industry and consumer 
organizations, that the Commission did not intend to require that such 
callers obtain consent only in writing. While the text of the TCPA 
Exemptions Order did not specify that consent must be obtained in 
writing, we agree with petitioners that the amended rule implementing 
the numerical limitations appears to require prior express written 
consent to exceed those limitations. As a result, we amend Sec.  
64.1200(a)(3) to make clear that consent for informational (i.e., non-
telemarketing) calls to residential telephone numbers can be obtained 
orally or in writing, consistent with longstanding Commission rules and 
precedent, as discussed below.
    3. We agree with petitioners and commenters that there is no reason 
for the consent requirements for informational calls to residential 
lines differ from the consent requirements for informational calls to 
wireless numbers, which allow for either oral or written consent. In 
addition, as some commenters note, to extend the written consent 
requirement to informational calls that include calls from utilities 
and healthcare providers could impair the ability of these callers to 
provide important public safety information to consumers, though we 
note that to the extent such calls are ``necessary in any situation 
affecting the health and safety of consumers,'' they would fall under 
the exemption for ``calls made for emergency purposes'' and thus would 
not require prior express consent.
    4. The Commission's rules prior to adoption of the TCPA Exemptions 
Order did not require prior express written consent for artificial or 
prerecorded voice message calls made under any of the exemptions for 
calls to residential lines. The TCPA Exemptions Order expressed no 
intent to amend these rules to require written consent to make 
informational artificial or prerecorded voice calls to residential 
lines, and it provided no justification for such a requirement. In 
fact, the text of the TCPA Exemptions Order refers only to ``prior 
express consent'': ``callers can make more than three non-commercial 
calls using an artificial or prerecorded voice message within any 
consecutive thirty-day period by obtaining the prior express consent 
from the called party, including by using an exempted call to obtain 
consent.'' The Commission's rules distinguish ``prior express consent'' 
from ``prior express written consent.'' Only the latter requires 
consent to be obtained in writing. To obtain consent by ``using an 
exempted call'' strongly suggests that the Commission contemplated that 
such callers could obtain consent orally while communicating with the 
called party.
    5. In addition, the Commission's longstanding precedent has 
expressly limited the written consent requirement only to telemarketing 
calls. We note, for example, that the Commission did not amend the 
definition of ``prior express written consent'' in our rules, which is 
limited to ``advertisements or telemarketing messages'' to encompass 
exempted informational calls to residential lines. As a result, we 
agree with the petitioners and commenters that there is no indication 
that the TCPA Exemptions Order intended to change the Commission's 
longstanding rules and precedent that apply the written consent 
requirement only to telemarketing calls. As noted above, commenters, 
including several

[[Page 3670]]

consumer organizations, unanimously support this conclusion, and none 
oppose it. We therefore amend Sec.  64.1200(a)(3) of our rules 
accordingly to implement this clarification.
    6. Effective Date. The effective date of the amended rule contained 
herein is six months after publication in the Federal Register. This 
timeframe allows the amended rule to take effect on the same date as 
the rules that were adopted in the TCPA Exemptions Order. The 
Commission published an announcement of the effective date for the 
rules adopted in the TCPA Exemptions Order elsewhere in this issue of 
the Federal Register. In the TCPA Exemptions Order, the Commission 
concluded that a six-month implementation period was warranted to allow 
callers an opportunity to take measures to comply with the numerical 
limits and opt-opt requirements on artificial or prerecorded voice 
calls made to residential lines.
    7. Because the amended rule contained herein is interrelated with 
the rules from the TCPA Exemptions Order, we are establishing an 
effective date of six months after Federal Register publication of this 
rule such that all the amended rules can take effect on the same date. 
As a result, our Federal Register publication will set the same 
effective date for both the rules from the TCPA Exemption Order and for 
the amended rule contained herein.

B. Numerical Limits for Exempt Calls to Residential Lines

    8. We deny petitioners' request to reconsider the Commission's 
numerical limits on exempt informational calls to residential lines. We 
note that section 8(a) of the TRACED Act provides that the Commission 
``(I) shall ensure that any exemption under subparagraph (B) or (C) 
contains requirements with respect to-- . . . (iii) the number of such 
calls that a calling party may make to a particular called party.'' In 
response to the Commission's request on the matter, commenters 
generally opposed any limits on exempt calls, but did not submit any 
specific cost or benefit data on potential call limits or numerical 
limits that the Commission had imposed in other contexts, and offered 
little guidance on appropriate limits for different types of calls to 
meet the TRACED Act's requirements.
    9. As the TCPA Exemptions Order emphasized, limiting the number of 
exempted calls to residential lines will greatly reduce interruptions 
from intrusive and unwanted calls and reduce the burden on residential 
telephone users to manage such calls. As Congress noted in enacting the 
TCPA, artificial and prerecorded voice calls are often a greater 
invasion of privacy than live calls because the call recipient cannot 
interact with the caller. And more recently, in passing the TRACED Act, 
Congress noted that ``[u]nwanted or illegal robocalls threaten . . . 
critical communication[s] when frustrated recipients, fearing unwanted 
or illegal robocalls, are hesitant to answer their phones.''
    10. Further, while the adoption of a numerical limit satisfies the 
requirements of the TRACED Act, it also brings the residential 
exemptions ``in line with'' exempted calls to wireless numbers, which 
contain a numerical limitation on the number of calls that can be made. 
We agree with the Joint Consumer Organizations that the adopted limits 
on artificial and prerecorded calls to residential lines will have 
``particularly profound benefits for consumers.'' As the Joint Consumer 
Organizations note, the absence of any limits on prerecorded non-
telemarketing calls to residential lines is a primary source of 
consumer frustration that has led to consumers abandoning their 
landline telephone service.
    11. We continue to believe that--with respect to the exemptions for 
non-commercial calls, commercial calls that do not constitute 
telemarketing, and calls by tax-exempt nonprofit organizations--
limiting the number of calls that can be made to a particular 
residential line to three artificial or prerecorded voice calls within 
any consecutive thirty-day period strikes the appropriate balance 
between these callers reaching consumers with valuable information and 
reducing the number of unexpected and unwanted calls consumers 
currently receive and thus restoring trust in the residential landline 
network and advancing health and the safety of life, as discussed 
further below.
    12. We also believe a consistent limit for those three exemptions 
is appropriate. We therefore disagree with ACA International et al. 
(ACA) that we should impose different numerical limits for each type of 
informational call based on the content or purpose of the message. 
While petitioners characterize this as a ``one-size fits all'' 
approach, we find that such a consistent numerical limit for these 
three exemptions will benefit both callers and consumers.
    13. In addition, contrary to ACA's assertion, there is ample 
support in the record for the adopted three-calls-per-thirty-day 
numerical limit. As discussed above, numerous consumer organizations 
supported this limit, arguing that the three-call-per-thirty-day limit 
is reasonable. We agree with the Joint Consumer Organizations who argue 
that, in the context of our federal debt collection rules adopted in 
2016, ``the Commission engaged in an extensive and thorough analysis of 
the appropriate number of unconsented-to calls that should be 
permitted,'' and that ``[a]fter a full proceeding in which interested 
parties were invited to provide comments and reply comments, the 
Commission adopted a limit of three calls per thirty days for these 
calls.'' Nothing in the current record disturbs that analysis and thus 
gives us cause to change any of the numerical limits. We also note that 
the numerical limit for Health Insurance Portability and Accountability 
Act of 1996 (HIPAA)-related calls to residential lines is identical to 
the limit that has been in place for more than six years and functioned 
without any record evidence of unduly restricting the ability of 
callers to make autodialed or prerecorded voice calls under a similar 
exemption for wireless telephone numbers. The Commission thus has six 
years of experience of applying that numerical limit to this same 
category of calls to wireless numbers, and this experience has 
demonstrated that this numerical limit strikes an appropriate balance 
between these callers reaching consumers with valuable healthcare 
information and restoring trust in the residential landline network, 
which can help to advance health and the safety of life as discussed 
further below.
    14. Further, we agree with the Joint Consumer Organizations that 
the three-calls-per-thirty-day numerical limit is also reasonable in 
light of the two exceptions that the TCPA already provides for 
artificial or prerecorded voice calls: all calls relating to 
emergencies are permitted, and all calls for which prior express 
consent has been provided are permitted. The limitations the Commission 
adopted in the TCPA Exemptions Order are narrowly tailored to advance 
the health, safety, and privacy of consumers, while still providing 
opportunities for callers to contact consumers in an emergency or when 
they have received prior express consent. If callers need to make the 
calls because of a health or safety emergency or pursuant to prior 
express consent, there is no limit on the calls. Thus, we disagree with 
ACA's position that we did not consider the needs of utilities to make 
emergency calls, as permitted in the rules and Commission precedent.
    15. Moreover, as the Commission emphasized in the TCPA Exemptions 
Order, callers wishing to make more than three non-telemarketing calls 
using

[[Page 3671]]

an artificial or prerecorded voice within any consecutive thirty-day 
period can obtain consumer consent to make more. Callers can use 
exempted calls to obtain consent if the calls satisfy other applicable 
conditions. And most significantly, as discussed above, now that we 
have made clear that callers can obtain consent orally from consumers, 
informational callers will more easily be able to obtain permission to 
exceed the numerical limits. We continue to believe that consumers who 
welcome such calls are likely to readily give such consent, and the 
record developed on reconsideration does not contradict this assertion. 
In addition, because the TCPA only restricts calls to a residential 
telephone number when they use an artificial or prerecorded voice, 
callers using a live agent to make such calls should not risk violating 
the TCPA rules.
    16. While ACA and several commenters oppose the three-calls-per-
thirty-day limit and argue such limit is arbitrary and will impede the 
ability of informational callers to deliver time-sensitive information 
to consumers, they neither offer a clear alternative limit to apply to 
all exempted callers nor suggest appropriate distinct limits for each 
and every various type of call. In addition, the petitioners offer no 
new facts or data on the calls they make that have changed since the 
last opportunity to present such matters to the Commission. ``In the 
absence of additional data from commenters,'' and to implement the 
statutory mandate, we conclude that these numerical limits adequately 
balance the privacy interests of consumers with the ability of 
informational callers to communicate with the public, and that there is 
no reason to revisit these limits at this time.
    17. Given that we find the numerical limits to be reasonable, we 
decline to adopt what ACA describes as ``important safeguards'' to 
ensure that consumers receive the calls they expect. ACA argues that, 
if the Commission retains the existing numerical limits, it should 
apply them on a ``per event'' or ``per account'' basis rather than on a 
``per telephone number'' basis. We believe a per-event or per-account 
condition is unnecessary in order for callers to deliver important 
information to consumers. We emphasize that informational callers need 
only obtain consent orally or in writing from a consumer to be able to 
make unlimited calls to that telephone number regarding any event--
whether it be a utility service upgrade, a security threat on a 
financial account, or a scheduled medical appointment. Thus, callers 
can obtain consent from consumers who desire to receive more than three 
calls per thirty days; consent is an important safeguard to ensure not 
only that callers can make the calls they need to make, but that 
consumers are protected from repetitive nuisance calls. Moreover, ACA's 
argument in its reply comments for a ``per event'' or ``per account'' 
approach to call limits is new, but we see no reason why it could not 
have been presented during the rulemaking proceeding. In the absence of 
any clear reason that it is in the public interest to adopt ACA's 
alternative approach to numerical limits, we find this to be an 
alternative and independent reason not to grant ACA's late request.
    18. Finally, we decline ACA's request for the Commission to revisit 
the numerical limit under the wireless exemption for package delivery 
notifications that has been in place since 2014. As the Commission 
stated in the TCPA Exemptions Order, such request, which was also made 
in response to the TRACED Act Notice of Proposed Rulemaking (NPRM), 
published at 85 FR 64091 (Oct. 9, 2020), is outside the scope of 
section 8 of the TRACED Act. In addition, we deny ACA's request to 
allow package delivery companies to send at least two additional 
follow-up messages, even when no signature is required. We find no 
reason to conclude that the existing exemption that allows for one 
notification (whether by voice call or text message) to notify a 
consumer about a package delivery is inadequate to address these 
situations as described in the record. To the extent that additional 
notifications may prove helpful in these situations, we note that 
callers may use their one exempted notification to obtain consent from 
recipients to make additional notifications or use a live caller to 
contact the recipient.

C. Numerical Limits Are Consistent With the First Amendment as They 
Help Restore Trust in the Residential Landline Network and Advance 
Health and Safety of Life

    19. We also conclude that it is fully consistent with the First 
Amendment to retain the call limitation established in the TCPA 
Exemptions Order for the residential line exemption for healthcare 
calls subject to HIPAA and the distinct call limitation applicable to 
the residential line exemptions for noncommercial calls; commercial 
calls that do not include an unsolicited advertisement; and calls from 
tax exempt nonprofit organizations (collectively, the ``non-HIPAA 
exemptions''). In its Petition, Enterprise Communications Advocacy 
Coalition (ECAC) argues that the different numerical limits adopted for 
the residential line exemption for healthcare calls subject to HIPAA 
(one call per day up, to three calls per week) and those adopted for 
the non-HIPAA exemptions (three calls per thirty days) constitute 
content-based restrictions that fail strict scrutiny and thus violate 
the First Amendment. NCTA--The internet & Television Association (NCTA) 
similarly argues that ``the three-call limit [on exempted commercial 
informational calls] imposes overbroad restrictions on fully protected 
speech and violates the First Amendment.'' ECAC and NCTA argue that 
because the distinction in the call limitations for the different 
residential line exemptions are content-based, that subjects the 
Commission's regulatory regime to strict First Amendment scrutiny, and 
that the Commission has not satisfied that standard. For the reasons 
explained below, we reject the claim that the call limitations violate 
the First Amendment and therefore deny requests for reconsideration 
premised on that theory.
    20. Particularly in light of the Supreme Court's recent decision in 
Barr v. Am. Ass'n of Political Consultants (AAPC), we recognize that a 
court could view the Commission's approach to the residential line 
exemptions as implicating content-based regulation of speech subject to 
strict scrutiny. Strict scrutiny requires the ``government [to] prove[] 
that the[ restrictions] are narrowly tailored to serve compelling state 
interests.'' Evaluating the First Amendment concerns raised on 
reconsideration, we find that the call limitations for our residential 
line exemptions satisfy strict First Amendment scrutiny. As discussed 
below, we conclude that our call limitations are narrowly tailored to 
advance a distinct governmental interest--that is, restoring trust in 
the residential landline network and advancing the health and safety of 
life--and thus satisfy strict First Amendment scrutiny.
    21. We conclude that the adopted call limitations for the 
residential line exemptions are narrowly tailored to advance the 
compelling governmental interest in health and safety of life. The 
landline telephone network--and the communication it enables--is an 
important tool in ensuring residential consumers receive the 
information they need to advance their own health and safety of life 
along with that of others. Yet the evidence reveals that the escalating 
problem of robocalls has undermined consumers' trust and willingness to 
rely on their landline telephone, leading consumers in many

[[Page 3672]]

cases to simply not answer the phone. That communication breakdown can 
have significant health and safety of life implications for the many 
consumers who rely on residential landline service.
    22. As a statutory matter, when calibrating the residential line 
exemptions, it is appropriate for the Commission to consider the health 
and safety of life implications of the use of the telephone network 
that our exemption rules would facilitate. Although the TCPA includes a 
special focus on consumer privacy, it nonetheless recognizes the 
importance of health and safety of life considerations through the 
statutory exemption from TCPA restrictions for calls made or initiated 
for emergency purposes. Congress likewise recognized that ``privacy 
rights, public safety interests, and commercial freedoms of speech and 
trade must be balanced in a way that protects the privacy of 
individuals and permits legitimate telemarketing practices.'' Further, 
the TCPA was enacted as part of the Communications Act, which 
established the Commission to, among other things, ``promot[e] safety 
of life . . . through the use of wire and radio communications.''
    23. Turning to the specific context at issue here, evidence 
supports the conclusion that the volume of robocalls landline consumers 
receive undermines their trust in, and willingness to rely on, the 
landline telephone network. There is evidence that the number of 
robocalls has increased dramatically in recent years. The Commission 
previously has cited ``hundreds of comments from consumers [filed in a 
rulemaking] stating that they no longer answer their phone when it 
rings,'' and has concluded that ``[i]t is obvious that the volume of 
unwanted calls is reducing the value of telephony to anyone who makes 
or receives calls.'' Commenters state that ``[t]he unremitting nature 
of unwanted and unstoppable--even if technically legal--calls made to 
landlines has led to a wavering trust in voice calls.'' Unwanted 
robocalls, for example, often are either delivered with inaccurate 
caller identification (caller ID) information or are delivered with 
caller ID information that is not familiar to a consumer, and thus are 
highly likely to be viewed by called parties with suspicion. The Joint 
Consumer Organizations also explain the practical consequences that 
flow from this state of affairs: ``[p]eople have become so inured to 
the unwanted calls ringing their lines that they do not pick up--even 
when the calls are important.'' There also is evidence that consumers' 
increasing reluctance to answer the phone undermines public health and 
safety of life that depends on the phone network. Exacerbating this 
concern is the fact that traditional residential voice service can be 
particularly important for vulnerable populations, such as the elderly. 
As the Joint Consumer Organizations observe, ``[t]he Commission's new 
regulations provide a meaningful way to rebuild the fading trust in the 
usefulness of landlines by arming recipients with effective tools to 
stop many of the unconsented-to calls they receive.''
    24. Importantly, we find that it is the overall volume of 
unauthorized robocalls that has led residential landline consumers 
increasingly to simply decline to answer the phone, even if a given 
call might, in the abstract, be subjectively desirable to a given 
consumer. It is reasonable to assume that callers generally, and 
specifically those callers who argue here to be able to make unlimited 
numbers of robocalls without consumer consent, have incentives to call 
repeatedly because the cost of repeated calling is trivial to the 
caller financially, and there exists only an incremental risk a 
consumer will not pick up their call. Thus, callers individually have 
little or no incentive to be concerned about the collective problem of 
unwanted robocalls undermining trust in the network. As a result, it is 
appropriate for us to take action to address the larger overall volume 
of robocalls. We expect that curtailing the number of calls to 
residential lines that can be made by virtue of FCC exemptions under 
section 227(b)(2)(B) will substantially reduce the total volume of 
calls consumers receive without their prior authorization, helping 
restore consumers' confidence in the calls they do continue to receive.
    25. As a general matter, and in the absence of anything other than 
conclusory assertions to the contrary, we are not persuaded that a less 
restrictive limitation than three calls per thirty days would be a 
reasonable choice of call limitation for these residential line 
exemptions given the compelling governmental interests at stake. 
Indeed, one could argue that the need to address the volume of 
unauthorized calls and thereby restore trust in the telephone network 
could be addressed most effectively by eliminating these exemptions 
altogether. But we also must weigh First Amendment considerations, and 
in this proceeding we do not find a basis to restrict these calls 
further than a limit of three calls per thirty days under the 
residential line exemption. In particular, against the backdrop of the 
Commission previously having adopted, after a thorough and reasoned 
analysis, a three-call-per-thirty day limit for other types of 
unconsented-to calls, we conclude that, at least on this record, we do 
not find a sufficient justification for taking a more restrictive 
approach and either eliminating the exemptions entirely or adopting 
lower call limitations, given the need for an appropriate fit between 
the regulatory approach and the relevant governmental interest.
    26. Notwithstanding those general findings regarding the call 
limits for residential line exemptions, we nonetheless find a less 
restrictive call limitation warranted for the exemption for healthcare 
calls as defined by HIPAA. The exemption for healthcare calls as 
defined by HIPAA is unique in that the governmental interest in health 
and safety of life cuts both ways with respect to such calls. In other 
words, curtailing unauthorized robocalls as a whole will help restore 
consumers' trust and willingness to rely on residential landline 
service, thereby advancing the governmental interest in health and 
safety of life--but, at the same time, allowing healthcare calls as 
defined by HIPAA to reach residential consumers is itself also a 
benefit to the governmental interest in health and safety of life.
    27. On balance, the governmental interest in health and safety of 
life is best advanced in this unique scenario by allowing a higher 
number of calls under the exemption for healthcare calls as defined by 
HIPAA. This call limit matches the limit the Commission adopted for 
calls to wireless numbers in 2015, and the Commission found ``no 
credible evidence it has unduly restricted healthcare providers' 
ability to communicate with their patients.'' We thus conclude that the 
risk that a more restrictive call limitation could unduly restrict 
healthcare providers' ability to communicate with their patients--a 
possibility the Commission cannot rule out on this record--counsels 
against a lower call limitation. At the same time, in light of our 
experience with the prior limit for calls to wireless numbers, we also 
do not find a basis to conclude that a higher number of calls is 
warranted here, given the mixed effects of such calls when considered 
in conjunction with all the other calls made without prior consent 
under the residential line exemptions.
    28. We also are not persuaded by commenters' objections to the 
Commission's call limitations for the residential call exemptions. Some 
commenters contend that other calls implicate health and safety of life 
just like health care messages as defined by HIPAA. These commenters 
appear

[[Page 3673]]

concerned that the Commission's approach unduly restricts that speech 
by failing to apply the more generous call limitations that apply to 
healthcare calls as defined by HIPAA. But these claims do not account 
for the full range of calls that can be made notwithstanding the TCPA's 
restriction on calls to residential lines. In particular, in addition 
to the Commission-created exemption for health care calls as defined by 
HIPAA, section 227(b)(1)(B) expressly carves out any call made with 
``the prior express consent of the called party,'' and any ``call [] 
initiated for emergency purposes'' from the scope of its prohibitions.
    29. As discussed above, the TCPA's restrictions for calls to 
residential lines do not apply to calls unless they use an artificial 
or prerecorded voice. If callers need to make calls related to, for 
example, power outages or utility work, they can either obtain the 
consumer's consent to do so before using an artificial or prerecorded 
voice or use a live caller to make the call. Or, if the call is made 
for an ``emergency purpose'' as defined by the Commission's rules and 
orders, it is exempted by our rules. None of the examples in the record 
articulate a scenario for which distinct, more lenient call limitations 
practically could be crafted, that would apply to circumstances that 
both: (i) implicate the governmental interest in health and safety of 
life and (ii) is not already subject to either the FCC's exemption for 
health care messages as defined by HIPAA or one of the statutory 
exceptions. Indiscriminately expanding call limitations based on 
speculation that they conceivably might benefit such calls would also 
allow an array of other calls that undermine our goal of restoring 
greater consumer trust and confidence in the landline telephone 
network, to the benefit of health and safety of life. Consequently, the 
record does not reveal a plausible alternative approach to expanding 
the universe of calls subject to a higher call limitation under the 
theory that they are similarly situated to healthcare calls as defined 
by HIPAA.
    30. Nor does the record identify a plausible alternative approach 
that would give more lenient call limitations for calls that commenters 
claim are delivered for important interests other than the interest in 
health and safety of life. ACA, for example, alludes to an example of 
political speech and cites examples of communications bearing on 
consumers' financial interests or safety of property. More generally, 
NCTA cites TCPA legislative history that ``Congress did not intend the 
statute `to be a barrier to the normal, expected, or desired 
communications between businesses and consumers.''' These commenters 
largely do not contend, let alone provide persuasive evidence, that the 
other interests--such as commercial or financial interests or safety of 
property--are as compelling as the governmental interest in health and 
safety of life that we are seeking to advance, which would be 
undermined by allowing more calls to residential landline consumers 
without their prior consent. And in all cases, it is essential to keep 
the aggregate effects in mind--the higher volume of these other types 
of calls raised by commenters will contribute to the overall lack of 
trust in the telephone network--a fact undiminished if they at the same 
time advance some more narrow interest. Furthermore, the First 
Amendment only requires us to consider plausible alternatives, and the 
record here does not reveal alternatives that could target just that 
speech that advances the other identified interests without sweeping in 
other types of speech that would simply contribute to the call volume 
that undermines trust in the telephone network without any adequate 
countervailing benefit.
    31. We also are not persuaded that our call limitations for the 
residential call exemptions are unnecessary in light of anti-illegal 
robocall measures as a result of the TRACED Act and prior Commission 
policies--namely: opt-out rights specified by rule; the required 
implementation of STIR/SHAKEN; and call blocking. As discussed below, 
we conclude that those other measures--while designed to address 
important aspects of the robocalls problem--do not obviate the need for 
our approach to call limitations.
    32. Opt-Out. The consumer opt-out rights in our rules, while 
helpful for consumers, alone are not adequate to protect consumers who 
have lost trust in the telephone network and consequently are reluctant 
to answer the phone in the first place. If consumers do not answer a 
given call and learn who the caller is (assuming that the caller 
provides accurate information), they have no ability to opt out of 
future calls from that caller. Thus, despite the important protections 
they afford, opt-out mechanisms are unlikely to meaningfully reduce the 
volume of calls received by those consumers who already have lost trust 
in the telephone network.
    33. STIR/SHAKEN. While voice service provider implementation of 
STIR/SHAKEN will combat robocalls and introduce additional trust into 
the network, it addresses a different problem than the rules at issue 
here. STIR/SHAKEN combats the problem of illegal spoofing--that is, the 
falsification of caller ID information by bad actors to deceive call 
recipients into believing a call is trustworthy. It accomplishes this 
goal by allowing terminating providers to verify that the caller ID 
information attached to a call is legitimate. By adding new information 
about the call originator and caller ID information displayed, 
widespread implementation of STIR/SHAKEN promotes call blocking and 
labeling, enables more effective enforcement, and restores trust in 
caller ID information.
    34. STIR/SHAKEN combats scam spoofed calls, which is a subset of 
unwanted calls. All forms of unwanted robocalls undercut Americans' 
trust in the voice network in their own way. An estimate from YouMail 
found that scam robocalls were just 47% of all robocalls in 2019. The 
remainder totals an estimated 31 billion robocalls--comparable to the 
number of all robocalls in 2016. Other estimates also indicate that a 
large proportion of robocalls are not scams. Merely reducing the number 
of scam calls--while highly valuable as a form of consumer protection 
and significant progress relative to the status quo in terms a 
reduction to the volume of robocalls--is not sufficient in itself to 
restore trust that an incoming call is likely to be one the recipient 
wants to answer. Even if STIR/SHAKEN implementation--and the associated 
call blocking and consumer response--succeeds at eliminating all scam 
robocalls, a significant number of unwanted robocalls would remain. 
This, in turn, would continue to undermine trust in the telephone 
network unless it can be further addressed by the Commission in its 
calibration of residential line exemptions.
    35. Call Blocking. In significant part, the call blocking analysis 
follows our analysis of STIR/SHAKEN. Even though call blocking measures 
need not focus solely on scam or illegal robocalls, measures currently 
in place for landline customers frequently are focused in that manner. 
To the extent that call blocking targets scam calls, that step--while 
important and beneficial--does not fully address the problem with lost 
confidence in the telephone network for the same reasons discussed 
above with respect to STIR/SHAKEN.
    36. Although call blocking tools also can, in part, address legal 
but unwanted calls, the record here does not support a finding that 
such measures have the prevalence and degree of success needed to 
obviate the need for call limitations (or to enable the relaxation

[[Page 3674]]

of call limitations) for the residential line exemptions. For one, the 
record does not demonstrate how successful blocking tools are today at 
blocking unwanted calls. For another, the Commission has acknowledged 
and emphasized on numerous occasions in its call blocking orders that 
any single solution will not be sufficient to address the full problem 
of unwanted robocalls, and that we therefore need to approach it from 
multiple angles. Thus, even accepting that some tools seek to block 
calls beyond scam or illegal calls, we are not confident yet that they 
would curtail such calls to an appreciable degree. This concern about 
the tools' design is exacerbated by the limited extent of the public's 
use of them today. Tools blocking unwanted calls (as distinct from scam 
or illegal calls) do not appear to be widely in use by consumers today, 
even if available (and even if available at no cost). In a number of 
cases, they appear to be offered on an opt-in basis and/or otherwise 
require affirmative steps by the consumer to set it up. Thus, although 
they are important tools even today, and have promise to become even 
more important over time, there is not sufficiently widespread use of 
tools that block unwanted calls that are not scam or illegal calls to 
adequately address the circumstances that have led to a loss of trust 
in the telephone network and associated risks to health and safety of 
life. Because these tools, however successful they may prove to be, 
will take substantial time to be deployed on a widescale basis by both 
internet Protocol (IP) and non-IP based providers, we do not find them 
to serve as an adequate remedy for the immediate scourge of illegal and 
unwanted robocalls that will continue to serve as a deterrent to 
residential telephone use today and in the immediate future. Thus, 
while blocking tools are incredibly valuable, additional steps to 
reduce the number of potentially unwanted calls overall: (1) reduce the 
risk that consumers will be disrupted by a high volume of such calls; 
and (2) reduce the risk that calls made under the TCPA exemptions will 
be blocked that, individually, may be wanted, but are not wanted at 
such high volumes. We will continue to monitor the success of blocking 
tools and reevaluate our numerical limits in light of our experience 
with these tools.
    37. In sum, we conclude that our call limitations for the 
residential line exemptions are narrowly tailored to advance the 
compelling government interest in health and safety of life because 
they help restore residential landline consumers' trust and willingness 
to rely on the residential landline telephone network. Further, we do 
not find that other regulatory alternatives adequately meet this need. 
Indeed, not only do opt-out, STIR/SHAKEN, and call blocking each have a 
discrete sphere of likely impact, but even taken in the aggregate they 
do not address all aspects of the problem. This is sufficient to 
satisfy strict First Amendment scrutiny.

D. Opt-Out Requirements for Exempt Calls to Residential Lines

    38. We deny ACA's request to reconsider the Commission's decision 
to extend to informational calls opt-out requirements that had 
previously applied only to telemarketing calls. These requirements 
mandate use of automated opt-out mechanisms, as well as opt-out lists 
and policies. Under the new rules, a consumer who wants to avoid 
further artificial or prerecorded informational calls can ``opt out'' 
by dialing a telephone number (required to be provided in the 
artificial or prerecorded voice message) to register his or her do-not-
call request in response to that call. Our rules also require that the 
caller provide an automated, interactive voice- and/or key press-
activated opt-out mechanism for the called person to make a do-not-call 
request. To effectuate an opt-out mechanism, callers must comply with 
the requirements of Sec.  64.1200(d) of our rules, which governs the 
process for handling do-not-call requests. ACA argues that such 
requirements would be burdensome and that the former rules requiring 
informational callers to provide only caller identification and a 
telephone number at the beginning of prerecorded and artificial voice 
calls are sufficient to protect consumers. ACA further maintains that 
the Commission did not provide ``any reasoned explanation, cost-benefit 
analysis, or assessment of the impact on the informational calls that 
might no longer be able to reach consumers.''
    39. As the Commission explained in the TCPA Exemptions Order, an 
opt-out mechanism gives consumers more say in how many calls they 
receive. We believe consumers should be able to decide which types of 
calls they want to receive on their residential lines and which they 
wish to avoid. We agree with the Joint Consumer Organizations that 
requiring callers making exempt calls to provide an automated opt-out 
mechanism will significantly empower telephone call recipients to stop 
unwanted calls. In addition, eliminating opt-out requirements for 
prerecorded calls to residential lines, as the ACA Petition requests, 
would remove an additional tool that consumers can use to limit the 
number of artificial or prerecorded voice calls that they receive--a 
tool that is consistent with Congress's direction in the TRACED Act of 
placing limits on the number of calls made pursuant to exemptions--and 
would lead to more unwanted calls. While commenters argue that applying 
the same opt-out requirements that apply to telemarketers is a 
departure from longstanding precedent, they offer no persuasive reasons 
for why consumers should not be afforded the same tools to avoid 
unwanted informational calls as they have to combat unwanted 
telemarketing calls, particularly given the unrelenting number of 
unwanted robocalls consumers face today. NCTA argues that businesses 
``have every incentive to communicate efficiently with and respect the 
privacy of their customers, as any failure to do so could result in 
reputational harm and a loss of business.'' And yet the evidence shows 
that consumers continue to be deluged with unwanted robocalls to their 
landlines.
    40. Informational callers have a variety of alternative methods 
they may use to reach consumers, including the use of live operators on 
any calls they make. Our opt-out requirement prohibits only the use of 
an artificial or prerecorded voice message on future calls to the call 
recipient. It does not preclude further communication by any other 
means. To the extent that consumers consider such calls beneficial, 
they have the ability not to exercise the option to opt out from 
receiving them and even to consent to receiving unlimited calls from a 
particular caller. We thus disagree with ACA's assertion that the 
Commission did not fully consider the cost-benefit impact of precluding 
informational calls after a consumer opts out of such calls. To the 
contrary, the Commission recognized that requiring an opt-out mechanism 
for informational calls will provide a significant benefit--it will 
``empower consumers to stop unwanted calls made pursuant to an 
exemption under section 227(b)(2)(B)'' and ``give consumers more say in 
how many calls they receive''--and it also considered the burden that 
adopting an automated, interactive opt-out mechanism will impose on 
callers who make prerecorded message calls. In doing so, however, the 
Commission noted that ``the technology that enables opt out is 
commonplace and easily accessible.'' Nevertheless, ``we recognize that 
this requirement will impose some additional burden,'' and to alleviate 
that

[[Page 3675]]

burden, we allowed for a six-month implementation period before the 
opt-out requirements took effect. We took that action to ``ensure that 
affected calling parties can implement necessary changes in a cost-
effective way that makes sense for their individual business models.'' 
Thus, we reject ACA's argument that we failed to consider the costs and 
benefits associated with the new rule.
    41. Furthermore, we continue to disagree with commenters who argue 
that opt-out requirements for exempt callers are overly burdensome. The 
Commission placed a similar condition on exemptions for calls to 
wireless numbers, and there is no evidence that callers have not been 
able to comply with such requirements in that context. The technology 
that enables opt-out mechanisms is commonplace and easily accessible; 
the Commission's rules have required telemarketers to use the available 
tools and equipment since 2012.

E. Declaratory Ruling

    42. We grant ACA's request to confirm that an earlier Commission 
ruling on ``prior express consent'' for calls made by utility companies 
to wireless phone numbers applies equally to residential numbers. As 
discussed herein, we apply the guidance and compliance standards set 
forth in the Edison Electric Institute (EEI) Declaratory Ruling, FCC 
16-88, released on August 4, 2016, which addressed utility calls to 
wireless telephone numbers, to calls made to residential lines. 
Specifically, we confirm that consumers who provide their wireless or 
residential telephone number to a company involved in the provision of 
their utility service when they initially sign up to receive utility 
service, subsequently supply the wireless or residential telephone 
number, or later update their contact information with their wireless 
or residential telephone number, have given prior express consent to be 
contacted by that company at that number with messages that are closely 
related to the utility service so long as the consumer has not provided 
instructions to the contrary.
    43. In addition, at the request of several Texas utility companies, 
and consistent with the Commission's treatment of prior express consent 
in other contexts, we take this opportunity also to confirm that the 
provision of a telephone number to the subscriber's utility service 
provider reasonably evidences prior express consent by the subscriber 
to be contacted at that number by an upstream electric utility that: 
(1) provides electricity service to the subscriber's retail electricity 
provider, to whom the telephone number is given by the subscriber; or 
(2) is an affiliate of another utility company that provides some other 
type of utility service to the subscriber, to whom the telephone number 
is given by the subscriber. In some instances, the upstream electric 
utility provider may be best positioned to provide subscribers with 
more timely information regarding issues that may be affecting their 
service. This ensures that utility service providers involved in the 
provision of utility service to a subscriber but do not have a direct 
customer relationship with the subscriber can rely upon consent given 
to a retail utility provider to communicate with an affected subscriber 
on matters closely related to the utility service, such as situations 
in which the provision of electricity service is, or is scheduled to 
be, impacted due to issues related to the upstream utilities' 
generation or transmission of electricity.
    44. Consistent with the Commission's precedent, we confirm that 
calls closely related to utility services include those that warn about 
planned or unplanned service outages; provide updates about service 
outages or service restoration; ask for confirmation of service 
restoration or information about lack of service; provide notification 
of meter work, tree trimming, or other field work that directly affects 
the customer's utility service; notify consumers they may be eligible 
for subsidized or low-cost services due to certain qualifiers such as, 
for example, age, low income or disability; or provide information 
about potential brown-outs due to heavy energy usage.
    45. With regard to calls regarding payment for current utility 
service, we also incorporate the Commission's prior ruling. 
Specifically, in the absence of facts supporting a contrary finding, 
prior to the termination of a customer's utility service, a customer 
who provided a residential telephone number when he or she initially 
signed up to receive utility service, subsequently supplied the 
residential telephone number, or later updated his or her contact 
information with a residential telephone number, is deemed to have 
given prior express consent to be contacted by their utility company 
with messages that are closely related to the service, as described 
above, as well as calls to warn about the likelihood that failure to 
make payment will result in service curtailment. After a customer's 
utility service has been terminated, however, routine debt collection 
calls by utilities to those customers will continue to be governed by 
existing rules and requirements, and we leave undisturbed the existing 
legal and regulatory framework for those calls.
    46. We agree with the petitioner and commenters who support this 
request that these types of informational communications from utility 
providers are critical to providing safe, efficient, and reliable 
service. In fact, the Commission has long recognized that ``[s]ervice 
outages and interruptions in the supply of water, gas or electricity 
could in many instances pose significant risks to public health and 
safety, and the use of prerecorded message calls could speed the 
dissemination of information regarding service interruptions or other 
potentially hazardous conditions to the public.'' There are a wide 
range of potential risks to public health and safety presented by the 
interruption of utility services, and the use of artificial or 
prerecorded voice message calls can be critically important in speeding 
dissemination of time-sensitive information to the public. We also note 
that no commenter opposes this request.
    47. To ensure that utility companies call only those consumers who 
have consented to receive artificial or prerecorded voice calls and 
that such calls are closely related to the provision of service, we 
reiterate that the utility company is responsible for demonstrating 
that the consumer provided prior express consent, as it is in the best 
position to keep records in the usual course of business showing such 
consent, and the utility company will bear the burden of showing it 
obtained the necessary prior express consent. We also note that 
consumers have the right to revoke consent to such calls if they no 
longer wish to receive them, just as they can when these calls are made 
to wireless numbers. As a result, we believe this ruling balances 
important public safety communications with consumer privacy interests.

Ordering Clauses

    48. It is ordered, pursuant to the authority contained in sections 
1-4, 227, and 405 of the Communications Act of 1934, as amended, 47 
U.S.C. 151-154, 227, 405, and Sec. Sec.  1.2 and 1.429 of the 
Commission's rules, 47 CFR 1.2, 1.429, that the Order on 
Reconsideration and Declaratory Ruling is adopted.
    49. It is further ordered that the Declaratory Ruling of the Order 
on Reconsideration and Declaratory Ruling shall be effective upon 
release. It is further ordered that rule amendments adopted in the 
Order on Reconsideration and Declaratory Ruling shall be effective six 
months after

[[Page 3676]]

publication in the Federal Register, which shall be preceded by OMB 
approval of the modified information collection requirements adopted 
herein.
    50. It is further ordered that, pursuant to 47 CFR 1.4(b)(1), the 
period for filing petitions for reconsideration or petitions for 
judicial review of any aspect of the Order on Reconsideration and 
Declaratory Ruling will commence on the date that a summary of the 
Order on Reconsideration and Declaratory Ruling is published in the 
Federal Register.
    51. It is further ordered that the TCPA Exemptions Order adopted in 
CG Docket No. 02-278 on December 29, 2020, is affirmed in part and 
reversed in part to the extent indicated herein.
    52. It is further ordered that the Petitions for Reconsideration 
filed by the ACA International et al. and Enterprise Communications 
Advocacy Coalition in CG Docket No. 02-278 on March 29, 2021, and March 
17, 2021, respectively, are granted in part and denied in part to the 
extent indicated herein.

Supplemental Final Regulatory Flexibility Analysis

    53. As required by the Regulatory Flexibility Act of 1980, as 
amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was 
incorporated in the Traced Act NPRM, CG Docket No. 02-278, Notice of 
Proposed Rulemaking, published at 85 FR 64091, October 9, 2020. The 
Commission sought written public comment on the proposals in the Traced 
Act NPRM, including comment on the IRFA. The Commission subsequently 
incorporated a Final Regulatory Flexibility Analysis (FRFA) in the TCPA 
Exemptions Order. This Supplemental FRFA conforms to the RFA and adopts 
by reference the FRFA in the TCPA Exemptions Order. It reflects changes 
to the Commission's rules arising from the Order on Reconsideration 
prepared in response to the Petitions for Reconsideration filed by ACA 
International et al. (ACA) and Enterprise Communications Advocacy 
Coalition (ECAC).

A. Need for, and Objectives of, the Order on Reconsideration

    54. The Order on Reconsideration is part of the Commission's 
ongoing work to combat unwanted robocalls while permitting legitimate 
callers to deliver information consumers have consented to receive. 
Specifically, the Order on Reconsideration grants petitioners' request 
to clarify and amend the rules so that callers may obtain consent 
either orally or in writing to exceed the numerical limits on 
artificial or prerecorded voice calls to residential telephone lines 
made under the exemptions contained in Sec.  64.1200(a)(3)(ii) through 
(v) of the Commission's rules. The Commission agrees with the 
petitioners and commenters, including both industry and consumer 
organizations, that the Commission did not intend to require that such 
callers obtain consent only in writing. While the text of the TCPA 
Exemptions Order did not specify that consent must obtained in writing, 
the Commission agrees with petitioners that the amended rule 
implementing the numerical limitations inadvertently appeared to 
require prior express written consent to exceed those limitations. As a 
result, the Commission now amends Sec.  64.1200(a)(3) of its rules to 
make clear that consent for informational, non-telemarketing calls to 
residential telephone lines can be obtained orally or in writing, 
consistent with longstanding Commission precedent.
    55. The Order on Reconsideration denies petitioners' request to 
reconsider the Commission's numerical limits on exempt non-
telemarketing calls to residential lines. The Commission affirms that 
limiting the number of exempted calls to residential lines will greatly 
reduce the interruptions from unwanted calls and reduce the burden on 
residential telephone users to manage such calls. The Commission 
continues to believe that limiting the number of calls that can be made 
to a particular residential line to three artificial or prerecorded 
voice calls within any consecutive thirty-day period strikes the 
appropriate balance between these callers reaching consumers with 
valuable information and reducing the number of unexpected and unwanted 
calls consumers currently receive. In addition, the limit of three 
calls per thirty-day period is ``in line with'' the conditions for 
exempted calls to wireless numbers.
    56. The Order on Reconsideration also denies petitioners' request 
to reconsider the Commission's decision to extend to informational 
calls opt-out requirements that had previously applied only to 
telemarketing calls. These requirements mandate use of automated opt-
out mechanisms, as well as opt-out lists and policies. Under the new 
rules, a consumer who wants to avoid further artificial or prerecorded 
informational calls can ``opt out'' by dialing a telephone number 
(required to be provided in the artificial or prerecorded voice 
message) to register his or her do-not-call request in response to that 
call. The rules also require that the caller provide an automated, 
interactive voice- and/or key press-activated opt-out mechanism for the 
called person to make a do-not-call request. The Commission affirms 
that an opt-out mechanism gives consumers more say in how many calls 
they receive and that consumers should be able to decide which types of 
calls they want to receive on their residential lines and which they 
wish to avoid.
    57. Finally, the Order on Reconsideration grants the request of ACA 
to confirm that the Commission's ruling on ``prior express consent'' 
for calls made by utility companies to wireless phones applies equally 
to residential landlines. The Commission confirms that consumers who 
provide their residential telephone number to a utility company when 
they initially sign up to receive utility service, subsequently supply 
the residential telephone number, or later update their contact 
information with their residential telephone number, have given prior 
express consent to be contacted by their utility company at that number 
with messages that are closely related to the utility service so long 
as the consumer has not provided ``instructions to the contrary.'' The 
Order on Reconsideration concludes that there are a wide range of 
potential risks to public health and safety presented by the 
interruption of utility services, and the use of prerecorded voice 
message calls can be critically important in speeding dissemination of 
time sensitive information to the public.

B. Summary of Significant Issues Raised by Public Comments in Response 
to the IRFA and FRFA

    58. In the Traced Act NPRM, the Commission solicited comments on 
how to minimize the economic impact of the new rules on small 
businesses. There were no comments filed that specifically addressed 
the rules and policies proposed in the IRFA. In the TCPA Exemptions 
Order, however, the Commission described three comments that focused on 
the challenges certain entities might face in complying with the opt-
out requirements, given their small staffs and limited resources. The 
FRFA addressed those concerns. The ACA Petition and ECAC Petition 
addressed in the Order on Reconsideration, and in associated comments, 
did not raise any concerns with the FRFA.

C. Response to Comments by the Chief Counsel for Advocacy of the Small 
Business Administration

    59. Pursuant to the Small Business Jobs Act of 2010, which amended 
the RFA, the Commission is required to respond to any comments filed by 
the

[[Page 3677]]

Chief Counsel for Advocacy of the Small Business Administration (SBA), 
and to provide a detailed statement of any change made to the rules as 
a result of those comments. The Chief Counsel did not file any comments 
in response to the rules adopted in this proceeding.

D. Description and Estimate of the Number of Small Entities to Which 
the Rules Will Apply

    60. The RFA directs the Commission to provide a description of and, 
where feasible, an estimate of the number of small entities that will 
be affected by the rules adopted herein. The RFA generally defines the 
term ``small entity'' as having the same meaning as the terms ``small 
business,'' small organization,'' and ``small government 
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.
    61. As noted above, the Commission incorporated a FRFA into the 
TCPA Exemptions Order. In that analysis, the Commission described in 
detail the various small business entities that may be affected by the 
final rules, including telemarketing bureaus and other contact centers. 
The Order on Reconsideration amends the final rules adopted in the TCPA 
Exemptions Order affecting entities that make calls to residential 
lines pursuant to an exemption in the Commission's rules. The 
Supplemental FRFA accompanying the Order on Reconsideration adopts by 
reference the description and estimate of the number of small entities 
from the IRFA in the Traced Act NPRM and FRFA in the TCPA Exemptions 
Order.

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

    62. In Section E of the FRFA in the TCPA Exemptions Order, the 
Commission described in detail the projected reporting, recordkeeping, 
and other compliance requirements for small entities arising from the 
rules adopted in the TCPA Exemptions Order. This Supplemental FRFA 
adopts by reference the requirements described in Section E of the 
FRFA. In the Order on Reconsideration, however, the Commission modifies 
rules adopted in the TCPA Exemptions Order to make clear that callers 
may obtain consent either orally or in writing to exceed the numerical 
limits on artificial or prerecorded voice calls to residential 
telephone lines made under the exemptions contained in Sec.  
64.1200(a)(3)(ii) through (v) of the Commission's rules. This action 
should significantly reduce any compliance requirements for small 
entities. As the Commission emphasized in the TCPA Exemptions Order, 
callers can use exempted calls to obtain consent if the calls satisfy 
other applicable conditions. Such consent may be obtained verbally on 
the call. The Commission stated that consumers who welcome the calls 
would be likely to give such consent. Because the TCPA only restricts 
calls initiated with an artificial or prerecorded voice to a 
residential telephone, callers can use a live agent to make such calls 
without running afoul of the TCPA.

F. Steps Taken To Minimize Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered

    63. 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.
    64. The Commission considered feedback in response to the ACA 
Petition and ECAC Petition in crafting the Order on Reconsideration. We 
evaluated the comments with the goal of removing regulatory roadblocks 
and giving industry the flexibility to continue to make calls pursuant 
to any exemption previously carved out by the Commission, while still 
protecting the interests of consumers who do not want to receive 
unlimited calls from such entities and allowing consumers to opt out of 
future calls from such entities. For example, in the TCPA Exemptions 
Order, the Commission retained all existing exemptions for calls to 
residential numbers, concluding that such exemptions satisfy the TRACED 
Act's requirements regarding the classes of parties that may make such 
calls and the classes of parties that may be called. In the Order on 
Reconsideration, the Commission takes further action to give industry 
even more flexibility to make calls to consumers by amending Sec.  
64.1200(a)(3) of the rules to make clear that consent for 
informational, non-telemarketing calls to residential telephone lines 
can be obtained orally or in writing, consistent with longstanding 
Commission precedent. This should significantly minimize any compliance 
costs and burdens on small entities that are subject to the TCPA rules.

List of Subjects in 47 CFR Part 64

    Communications common carriers, Reporting and recordkeeping 
requirements, Telecommunications, Telephone.

Federal Communications Commission.
Marlene Dortch,
Secretary, Office of the Secretary.

Final Rules

    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. 151, 152, 154, 201, 202, 217, 218, 220, 
222, 225, 226, 227, 227b, 228, 251(a), 251(e), 254(k), 255, 262, 
276, 403(b)(2)(B), (c), 616, 617, 620, 1401-1473, unless otherwise 
noted; Pub. L. 115-141, Div. P, sec. 503, 132 Stat. 348, 1091.

0
2. Section 64.1200 is amended by revising paragraph (a)(3) introductory 
text to read as follows:


Sec.  64.1200   Delivery restrictions.

    (a) * * *
    (3) Initiate any telephone call to any residential line using an 
artificial or prerecorded voice to deliver a message that includes or 
introduces an advertisement or constitutes telemarketing without the 
prior express written consent of the called party, or that exceeds the 
applicable numerical limitation on calls identified in paragraphs 
(a)(3)(ii) through (v) of this section without the prior express 
consent of the called party. A telephone call to any residential line 
using an artificial or prerecorded voice to deliver a message requires 
no consent if the call:
* * * * *
[FR Doc. 2023-00635 Filed 1-19-23; 8:45 am]
BILLING CODE 6712-01-P