[Federal Register Volume 73, Number 135 (Monday, July 14, 2008)]
[Rules and Regulations]
[Pages 40183-40186]
From the Federal Register Online via the Government Printing 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 PRA@fcc.gov. 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
Erica.McMahon@fcc.gov.
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 fcc504@fcc.gov 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