Pimental v. Google, Inc. et al

Filing 30

Request for Judicial Notice re 29 Motion to Dismiss filed by Google, Inc., Slide, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8)(Related document(s) 29 ) (Wilson, Bobbie) (Filed on 10/14/2011) Modified on 10/17/2011 (jlm, COURT STAFF).

EXHIBIT 1

19 F.C.C.R. 19215, 19 FCC Rcd. 19215, 33 Communications Reg. (P&F) 1100,
2004 WL 2104233 (F.C.C.)

19 F.C.C.R. 19215, 19 FCC Rcd. 19215, 33 Communications Reg. (P&F) 1100, 2004 WL 2104233
(F.C.C.)
Federal Communications Commission (F.C.C.)
Order
**1 IN THE MATTER OF RULES AND REGULATIONS IMPLEMENTING THE TELEPHONE
CONSUMER PROTECTION ACT OF 1991
CG Docket No. 02-278
FCC 04-204
Adopted: August 25, 2004
Released: September 21, 2004
*19215 By the Commission:
I. INTRODUCTION
1. In this Order, we establish a limited safe harbor
period from the prohibition on placing automatic
telephone dialing system (autodialed) or prerecorded
message calls to wireless numbers when such calls
are made to numbers that have been recently ported
from wireline service to wireless service.[FN1] We will
not find persons liable for placing such autodialed or
prerecorded message calls where such calls are made
to a wireless number ported from wireline service
within the previous 15 days, provided the number is
not already on the national do-not-call registry or the
caller's company-specific do-not-call list. In addition,
we amend our existing safe harbor rules for telemarketers subject to the national do-not-call registry to
require such telemarketers to access the do-not-call
list no more than 31 days prior to making a telemarketing call. This requirement will become effective
on January 1, 2005. We believe the rule amendments
adopted herein ensure that callers have a reasonable
opportunity to comply with our rules while continuing to protect consumer privacy interests.
II. BACKGROUND

Page 1

A. The Telephone Consumer Protection Act of
1991
2. On December 20, 1991, Congress enacted the
Telephone Consumer Protection Act (TCPA) in an
effort to address a growing number of telephone
marketing calls and certain telemarketing practices
thought to be an invasion of consumer privacy and
even a risk to public safety.[FN2] In 1992, the *19216
Commission adopted rules implementing the requirements of the TCPA.[FN3] The TCPA specifically
prohibits calls using an autodialer or artificial or prerecorded message “to any telephone number assigned
to a paging service, cellular telephone service, specialized mobile radio service, or other radio common
carrier service, or any service for which the called
party is charged.”[FN4] In addition, the TCPA required
the Commission to “initiate a rulemaking proceeding
concerning the need to protect residential telephone
subscribers' privacy rights” and to consider several
methods to accommodate telephone subscribers who
do not wish to receive unsolicited advertisements.[FN5]
B. 2003 TCPA Order
3. In July 2003, the Commission released a Report
and Order revising the TCPA rules to respond to
changes in the telemarketing marketplace over the
last decade.[FN6] In relevant part, the Commission
reaffirmed that the TCPA prohibits, with limited exceptions, any call using an automatic telephone dialing system or an artificial or prerecorded message to
any wireless telephone number.[FN7] The Commission
acknowledged that, beginning November 24, 2003,
local number portability (LNP) would permit subscribers to port numbers previously used for wireline
service to commercial mobile radio service (CMRS)
providers, and that telemarketers would need to take
the steps necessary to ensure continued compliance
with the TCPA.[FN8] The Commission concluded,
however, that LNP did not make it impossible for
telemarketers to comply with the TCPA.[FN9] In so
doing, the Commission noted that its LNP decisions
dated back to 1996, with the Commission granting a
number of extensions of the effective date for porting
to and from CMRS carriers, providing the industry
and other interested parties with extensive advanced
notice of the impending implementation of wireless
LNP.[FN10] The Commission declined to mandate a

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

19 F.C.C.R. 19215, 19 FCC Rcd. 19215, 33 Communications Reg. (P&F) 1100,
2004 WL 2104233 (F.C.C.)

specific solution that will enable telemarketers to
identify wireless numbers in a number portability
environment concluding that telemarketers could
make use of the tools available in the marketplace to
ensure continued compliance with the TCPA. Similarly, the Commission rejected a proposal to create a
“good faith” exception for inadvertent autodialed or
prerecorded calls to wireless numbers finding there
are adequate solutions in the marketplace to enable
persons initiating such calls to identify wireless numbers.[FN11]
**2 4. In addition, 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.[FN12]
Consistent with the actions of the FTC, the Commission concluded that a seller or an entity telemarketing
on behalf of the seller will not be liable for violating
the national do-not-call rules *19217 if it can demonstrate that it has made a good faith effort to comply
with the national do-not-call rules and follows certain
procedures, including accessing the national do-notcall database no more than three months prior to the
date of the call.[FN13] In so doing, the Commission
acknowledged that a three month safe harbor period
for telemarketers may prove too long to benefit some
consumers.[FN14] The Commission indicated that it
would carefully monitor the impact of this requirement and consider a shorter time frame in the future.
C. Further Notice of Proposed Rulemaking
5. On March 19, 2004, the Commission released a
Notice of Proposed Rulemaking and Further Notice
of Proposed Rulemaking seeking comment on two
issues relating to the TCPA.[FN15] Specifically, the
Commission sought comment on whether to adopt a
limited safe harbor period during which a telemarketer will not be liable for violating the rule prohibiting autodialed and prerecorded message calls to wireless numbers for calls made to numbers that have
been recently ported from wireline to wireless service. The Commission noted that once a number is
ported to a wireless service, a telemarketer may not
have access to that information immediately in order
to avoid calling the new wireless number.[FN16] The
Commission also noted that several parties had raised
concerns regarding how to comply with the TCPA
once intermodal LNP became effective on November
24, 2003.[FN17] In addition, the Direct Marketing Association (DMA) and Newspaper Association of

Page 2

America (NAA) submitted a Petition for Declaratory
Ruling asking the Commission to adopt a safe harbor
for calls made to any wireless number regardless of
whether the number was recently ported to wireless
service.[FN18] Under the DMA's proposal, if a marketer subscribes to a wireless suppression service and
uses a version of the data that is no more than 30
days old, the marketer will not be liable under the
TCPA for erroneous calls to wireless numbers.[FN19]
6. The Commission also sought comment on whether
to amend our existing safe harbor provision for telemarketers that are required to comply with the national do-not-call registry to remain consistent with
any amendment made by the FTC to its safe harbor
rule.[FN20] The Commission noted that the Consolidated Appropriations Act of 2004 (Appropriations
Act) mandated that “not later than 60 days after the
date of enactment of this Act, the Federal Trade
Commission shall amend the Telemarketing Sales
Rule to require telemarketers subject to the Telemarketing Sales Rule to obtain from the Federal Trade
Commission the list of telephone numbers on the ‘donot-call’ registry once a month.”[FN21]
*19218 III. DISCUSSION
A. Safe Harbor for Calls to Wireless Numbers
**3 7. We establish a limited safe harbor period in
which persons will not be liable for placing autodialed or artificial or prerecorded message calls to
numbers recently ported from wireline to wireless
service. The majority of commenters in this proceeding support the adoption of such a safe harbor. Of the
comments filed in this proceeding, most were from
businesses that support a safe harbor period of 30
days or more.[FN22] One consumer commenter opposes any safe harbor period,[FN23] and the National
Association of State Utility Consumer Advocates
(NASUCA) indicates that any safe harbor should be
as limited as possible to minimize harm to consumers.[FN24] As discussed in greater detail below, we
conclude that callers will not be considered in violation of 47 C.F.R. § 64.1200(a)(1)(iii) for autodialed
or artificial or prerecorded message calls placed to a
wireless number that has been ported from a wireline
service within the previous 15 days, provided the
number is not already on the national do-not-call registry or caller's company-specific do-not-call list. The
15-day safe harbor period will run from the time the
port has been completed and the number appears in

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

19 F.C.C.R. 19215, 19 FCC Rcd. 19215, 33 Communications Reg. (P&F) 1100,
2004 WL 2104233 (F.C.C.)

Neustar's “Intermodal Ported TN Identification Service” as a wireless number.[FN25] We believe this safe
harbor will provide a reasonable opportunity for persons, including small businesses, to identify numbers
that have been ported from wireline to wireless service and, therefore, allow callers to comply with our
rules.[FN26]

Page 3

sary to allow callers to comply with this statutory
provision.

8. Given the limited duration of this safe harbor period and the fact that consumers may continue to
avail themselves of the national and companyspecific do-not-call lists, we do not believe that this
action will unduly infringe consumer privacy interests, which is consistent with congressional intent.
We emphasize that the safe harbor provision created
herein in no way obviates the need for telemarketers
to abide by any of the Commission's other telemarketing rules including honoring the requirements of
the national and company-specific do-not-call
lists.[FN27] In addition, we agree with Verizon that this
safe harbor provision will not excuse any willful violation of the ban on using autodialers or prerecorded
messages to call wireless numbers.[FN28] Thus, even
within the 15-day safe harbor period, persons will be
considered in violation of this prohibition if they
knowingly place an autodialed or prerecorded message call to a wireless number absent an emergency
or the prior express consent of the called party. We
also note that this safe harbor will extend only to
voice calls, not to text messages, which are sent specifically to numbers associated with wireless devices.

**4 10. We decline to adopt a safe harbor period that
extends beyond 15 days as suggested by several
commenters.[FN34] Although we acknowledge that a
30 or 31-day period would be consistent with the
requirements to update additions to the national and
company specific lists, and therefore create some
administrative efficiencies,[FN35] we believe such considerations are offset by the potential costs and privacy concerns to wireless subscribers that may be
charged for receiving telephone solicitations during
this extended period.[FN36] We agree with NASUCA
that the duration of any such safe harbor period
should be limited to the extent that it is technologically reasonable for marketers to obtain the appropriate data to comply with our rules.[FN37] The information provided in this proceeding indicates that a 15day safe harbor period is a sufficient period of time to
ensure that this information will be both available to
the industry and can be disseminated to callers in
order to comply with our rules.[FN38] For example,
Neustar recently made available a service that will
provide data on numbers ported from wireline to
wireless service on a daily basis.[FN39] In addition,
although not publicly available, Call Compliance
describes a system that it contends will block telephone calls to wireless numbers, including those that
have just been ported from wireline to wireless service.[FN40]

9. We note that one commenter contends that the
Commission lacks the statutory authority to adopt a
safe harbor.[FN29] However, the record is clear that it
is impossible for telemarketers to identify immediately those numbers that have been ported from a
wireline service to a wireless service provider.[FN30]
Commenters maintain that, absent a limited safe harbor period, telemarketers simply cannot comply with
*19219 the statute.[FN31] The safe harbor is not an
“exemption” from the requirements on calls to wireless numbers; it is instead a time period necessary to
allow callers to come into compliance with the rules.
Otherwise, the statute would “demand the impossible.”[FN32] Even if telemarketers had immediate access
to such information (which they do not), several
commenters note that some period of time still is
necessary to update marketing lists to suppress calls
to recently ported wireless numbers.[FN33] Therefore,
we believe this limited safe harbor period is neces-

11. We also decline to extend our safe harbor provision to any call made erroneously or inadvertently to
a wireless number regardless of whether that number
has been recently ported from wireline service as
suggested by the DMA.[FN41] We note that the Commission considered and declined to adopt a similar
proposal in the 2003 TCPA Order.[FN42] We believe
that adoption of this proposal is overly broad, unnecessary, and contrary to the intent of Congress. As
explained, the safe harbor we adopt here is *19220
for a limited purpose.[FN43] Conversely, the DMA's
proposal would establish a safe harbor provision for
autodialed or prerecorded calls to any wireless number in a manner equivalent to the safe harbor adopted
in the context of the national do-not-call rules.[FN44]
As the Commission noted in the 2003 TCPA Order,
Congress found that automated or prerecorded telephone calls are a greater nuisance and invasion of
privacy than live solicitation calls.[FN45] In section

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

19 F.C.C.R. 19215, 19 FCC Rcd. 19215, 33 Communications Reg. (P&F) 1100,
2004 WL 2104233 (F.C.C.)

227(b)(1)(A), Congress enacted a strict prohibition
on such calls to emergency numbers, health care facilities, and wireless numbers absent the prior express
consent of the called party.[FN46] Such calls were determined by Congress to threaten public safety and
inappropriately shift marketing costs from sellers to
consumers.[FN47] The Commission has noted that
wireless customers are often charged for incoming
calls.[FN48] Coupled with the fact that autodialers can
dial thousands of numbers in a short period of time,
such calls can be particularly costly to wireless subscribers.
**5 12. We believe the limited safe harbor provision
that we have adopted herein will substantially alleviate the concerns expressed by the DMA and NAA
regarding calls made to wireless numbers. Those
concerns derive largely from the recent implementation of intermodal LNP and not from difficulties in
otherwise complying with the TCPA's restrictions on
autodialed or prerecorded message calls to wireless
numbers. In the 2003 TCPA Order released just a few
months prior to the implementation of LNP, the record in that proceeding indicated that telemarketing
to wireless phones was not a significant problem due
to the successful efforts of industry to comply with
our rules.[FN49] For example, the DMA has created the
“Wireless Telephone Suppression Service” that provides a list of approximately 280 million numbers
that are currently used or have been set aside for
CMRS carriers.[FN50] We have no reason to believe
that the circumstances regarding calls to wireless
numbers have otherwise changed since the Commission reviewed this issue in 2003. To the extent that
intermodal LNP has been introduced, we believe the
steps taken herein are sufficient to allow callers to
comply with our rules while maintaining the privacy
interests and cost protections afforded to wireless
consumers by the TCPA. We therefore deny requests
for a more expansive safe harbor from the prohibition
on autodialed or prerecorded messages to wireless
numbers than that adopted herein.
13. Finally, we decline to establish a sunset date for
this safe harbor provision. We agree with several
commenters that the issues associated with real-time
access to numbers ported from wireline to wireless
service will be ongoing for the foreseeable future.[FN51] We anticipate, however, that technologies
will continue to improve over time to make such information more readily available and, therefore we

Page 4

may revisit this issue at a later date.
B. National Do-Not-Call Registry
14. Consistent with the recent decision of the FTC,
we amend our existing safe harbor rule for telemarketers that must comply with the national do-not-call
registry to require such telemarketers to access the
national do-not-call list and purge registered numbers
from their call lists no more than 31 days prior to
making a telemarketing call.[FN52] Although commenters were divided on this issue, several support
this conclusion.[FN53] We believe that this amendment
will benefit consumer privacy interests by reducing
from three months to 31 days the maximum period in
which telemarketers must update their database of
numbers registered on the national do-not-call list in
order to qualify for the safe harbor protections. We
also conclude that this action is consistent with the
intent of Congress. As noted above, in the Appropriations Act, Congress directed the FTC to amend its
corresponding safe harbor rule in a similar manner.
Although the Appropriations Act does not specifically require this Commission to take action, the DoNot-Call Implementation Act directs the Commission
to consult and coordinate with the FTC to “maximize
consistency” with the rules promulgated by the
FTC.[FN54] As the Commission noted in the 2004 Further Notice, absent action to amend our safe harbor
rule as it applies to the national database, many telemarketers will face inconsistent standards because
the FTC's jurisdiction extends only to certain entities,
while our jurisdiction extends to all telemarketers.[FN55] This would result in substantial confusion
for consumers and potentially hinder state and federal
regulatory efforts to monitor and enforce the national
do-not-call rules.
**6 15. We decline to establish a “grace period” advocated by a few commenters that would require
telemarketers to obtain the information from the national do-not-call list every 30 or 31 days, but would
not require them to stop calling consumers for some
additional period of time.[FN56] In so concluding, we
agree with the FTC's determination that there is no
support for this suggested approach in the Appropriations Act.[FN57] In fact, the legislative history suggests
that the sole purpose of shortening the requirement to
purge the do-not-call list is to reduce, to one month,
the amount of time consumers must wait to see a reduction in unwanted telephone solicitations.[FN58] Although the Appropriations Act does not specifically

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

19 F.C.C.R. 19215, 19 FCC Rcd. 19215, 33 Communications Reg. (P&F) 1100,
2004 WL 2104233 (F.C.C.)

require action by this Commission, for all the reasons
discussed above, we believe that our actions should
be consistent with those of the FTC and the intent of
Congress.
16. We recognize that more frequent updates of the
national registry may impose some additional administrative burdens on businesses, including small businesses. We believe, however, that the enhanced consumer privacy protections created by this requirement, taken in conjunction with the regulatory benefits to state and federal governments in establishing
consistent requirements on all telemarketers, outweigh any such administrative burdens. We also note
that the national do-not-call registry includes a feature whereby businesses that have already
downloaded the entire database may thereafter request only a list of changes to their previous list
(newly added and removed numbers), rather *19221
than downloading the entire database of approximately 60 million numbers every 31 days.[FN59] This
option should substantially alleviate any burdens imposed on businesses that may result from more frequent update requirements. In addition, at the request
of National Automobile Dealers Association
(NADA), we clarify that small sellers or telemarketers that register and pay the annual fee to use the
national do-not-call database are not required to either conduct an initial or subsequent download of the
entire database if they use only the single number
lookup feature to screen their outgoing telephone
solicitations.[FN60] The FTC reached a similar conclusion noting that this decision constitutes no change
from the existing rule.[FN61]
17. We agree with several commenters that it may
take some time for telemarketers and small businesses to implement procedures to access the national
registry on a more frequent basis than previously
required under our rules.[FN62] In addition, the FTC
has indicated that some additional time is required to
enable the FTC and the vendor that operates the national do-not-call registry to implement modifications
to the registry systems anticipated by the increase in
usage resulting from this rule amendment.[FN63]
Therefore, consistent with the FTC's determination,
we establish January 1, 2005, as the effective date of
this rule amendment. We emphasize that nothing we
do herein otherwise effects the safe harbor requirements, as set forth in 47 C.F.R. § 64.1200(c)(2)(i), for
violations of the national do-not-call rules.[FN64]

Page 5

IV. PROCEDURAL MATTERS
A. Final Regulatory Flexibility Analysis
**7 18. Pursuant to the Regulatory Flexibility Act of
1980, as amended (RFA),[FN65] the Commission's
Final Regulatory Flexibility Analysis is attached as
Appendix B.
B. Paperwork Reduction Act Analysis
19. This document contains modified information
collection requirements subject to the Paperwork
Reduction Act of 1995 (PRA), Public Law 104-13.It
will be submitted to the Office of Management and
Budget (OMB) for review under Section 3507(d) 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. In addition, we note that pursuant to the
Small Business Paperwork Relief Act of 2002, Public
Law 107-198, see44 U.S.C. 3506(c)(4), we have assessed the effects of amending the safe harbor provisions for the national do-not-call registry to require
telemarketers to access the registry every 31 days,
and find that there may be an increased administrative burden on businesses with fewer than 25 employees. However, since this action is consistent with
the Federal Trade Commission's recent rule, we believe small businesses subject to the jurisdiction of
both agencies will also benefit from *19222 consistent requirements. In addition, the national do-notcall registry allows telemarketers that have already
downloaded the entire database to request only those
changes to their previous list, which should substantially alleviate any burdens imposed on businesses
with fewer than 25 employees to update their call
lists on a more frequent basis.
C. Congressional Review Act
20. The Commission will send a copy of this Order
in a report to be sent to Congress and the General
Accounting Office pursuant to the Congressional
Review Act, see5 U.S.C. 801(a)(1)(A).
D. Materials in Accessible Formats
21. To request materials in accessible formats for
people with disabilities (Braille, large print, electronic files, audio format), send an e-mail to
[e-mail] or call the Consumer & Governmental Affairs Bureau at [phone] (voice) or (202)
418-0432 (TTY). This Order can also be downloaded

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

19 F.C.C.R. 19215, 19 FCC Rcd. 19215, 33 Communications Reg. (P&F) 1100,
2004 WL 2104233 (F.C.C.)

in Word and Portable Document Format (PDF) at
http:// www.fcc.gov/cgb/policy/telemarketing.html.
V. ORDERING CLAUSES
22. Accordingly, IT IS ORDERED that, pursuant to
the authority contained in 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
47 C.F.R. § 64.1200 of the Commission's rules, and
the Do-Not-Call Implementation Act, Pub. L. No.
108-10, 117 Stat. 557, this Order in CG Docket No.
02-278 IS ADOPTED, and Part 64 of the Commission's rules, 47 C.F.R. § 64.1200 is amended as set
forth in Appendix A. As discussed herein, the
amended rule at 47 C.F.R. § 64.1200(c)(2)(i)(D) will
become effective January 1, 2005.
**8 23. IT IS FURTHER ORDERED that the Petition for Declaratory Ruling filed by the Direct Marketing Association and Newspaper Association of
America on January 29, 2004, is DENIED to the extent discussed herein.
24. IT IS FURTHER ORDERED that the Commission's Consumer & Governmental Affairs Bureau,
Reference Information Center, SHALL SEND a copy
of this Order, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of
the Small Business Administration.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
FN1. An automatic telephone dialing system is defined as “equipment which has the capacity (A) to
store or produce telephone numbers to be called, using a random or sequential number generator; and (B)
to dial such numbers.”See47 U.S.C. § 227(a)(1). This
includes “predictive dialers” that dial numbers and,
when certain computer software is attached, assist
telemarketers in predicting when a sales agent will be
available to take the next call.
FN2. Telephone Consumer Protection Act of 1991,
Pub. L. No. 102-243, 105 Stat. 2394 (1991)codified
at47 U.S.C. § 227.
FN3. See Rules and Regulations Implementing the

Page 6

Telephone Consumer Protection Act of 1991, CC
Docket No. 92-90, Report and Order, 7 FCC Rcd
8752 (1992) (1992 TCPA Order); see also47 C.F.R. §
64.1200.
FN4. 47 U.S.C. § 227(b)(1)(A)(iii).
FN5. 47 U.S.C. § 227(c)(1-4).
FN6. See Rules and Regulations Implementing the
Telephone Consumer Protection Act of 1991, CG
Docket No. 02-278, Report and Order, 18 FCC Rcd
14014 (2003) (2003 TCPA Order).
FN7. 2003 TCPA Order, 18 FCC Rcd at 14115, para.
165.This prohibition excludes calls “made for emergency purposes or made with the prior express consent of the called party.”47 U.S.C. § 227(b)(1)(A).
FN8. 2003 TCPA Order, 18 FCC Rcd at 14117, para.
170.
FN9. 2003 TCPA Order, 18 FCC Rcd at 14117, para.
170.
FN10. 2003 TCPA Order, 18 FCC Rcd at 14111 and
14116, paras. 161, 168.
FN11. 2003 TCPA Order, 18 FCC Rcd at 14117-18,
para. 172.
FN12. 2003 TCPA Order, 18 FCC Rcd at 14034-35,
para. 28.The United States Court of Appeals for the
Tenth Circuit recently upheld the constitutionality of
the national do-not-call registry. See Mainstream
Marketing Systems, Inc. v. Federal Trade Commission, 358 F.3d 1228 (10th Cir. February 17, 2004).
FN13. 47 C.F.R. § 64.1200(c)(2)(i)(D).
FN14. 2003 TCPA Order, 18 FCC Rcd at 14040,
para. 38.
FN15. Rules and Regulations Implementing the Controlling the Assault of Non-Solicited Pornography
and Marketing Act of 2003; Rules and Regulations
Implementing the Telephone Consumer Protection
Act of 1991, CG Docket No. 04-53, CG Docket No.
02-278, Notice of Proposed Rulemaking and Further

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

19 F.C.C.R. 19215, 19 FCC Rcd. 19215, 33 Communications Reg. (P&F) 1100,
2004 WL 2104233 (F.C.C.)

Notice of Proposed Rulemaking, 19 FCC Rcd 5056
(2004) (2004 TCPA Further Notice).

Page 7

FN16. 2004 TCPA Further Notice at para. 46.
FN17. 2004 TCPA Further Notice at para. 45 (citing
Letter from Jerry Cerasale, Direct Marketing Association, to K. Dane Snowden, FCC, December 2,
2003; Letter from Anita Wallgren on behalf of the
Tribune Company to Marlene H. Dortch, FCC, November 10, 2003).

FN32. See ATA Reply Comments at 3-4 (citing
McNeil v. Time Ins. Co., 205 F.3d 179, 187 (5th Cir.
2000) (“It is a flawed and unreasonable construction
of any statute to read it in a manner that demands the
impossible”)).
FN33. See, e.g., Cingular Comments at 3-4; MCI
Comments at 9-10; ATA Reply Comments at 4-5.

FN18. See Petition for Declaratory Ruling, Direct
Marketing Association and Newspaper Association
of America, filed January 29, 2004 (DMA Petition).
FN19. DMA Petition at 4.
FN20. 2004 Further Notice at para. 52.
FN21. 2004 Further Notice at para. 51.
FN22. See, e.g., ATA Comments at 4-6; AT&T
Comments at 7-9; BellSouth Comments at 2; DMA
Comments at 2; SBC Comments at 2.

FN34. See, e.g., AT&T Comments at 8-9 (suggesting
30 days); BellSouth Comments at 2 (30 days); Cingular Comments at 4 (31 days).
FN35. See, e.g., ATA Comments at 4-5 (will allow
companies to merge scrubbing efforts conducted for
WLNP purposes with those for DNC purposes). Data
compiled by Neustar and released by the Commission
reveal that, since November 24, 2003, there have
been 217,000 wireline-to-wireless ports, in comparison to approximately 60 million numbers placed in
the national do-not-call registry database. See Number Portability: Implementation & Progress, A Report by the Commission's Wireless Telecommunications Bureau, Wireline Competition Bureau, and
Consumer & Governmental Affairs Bureau, May 13,
2004.

FN23. See Shields Comments at 2.
FN24. See NASUCA Comments at
FN25. See Neustar Comments at 2-3. For an overview
of
Neustar's
service,
seehttp://www.tcpacompliance.com/.

FN36. See, e.g., NASUCA Comments at 3 (wireless
customers generally must pay for the minutes used by
calls they receive); Shields Comments at 2; Verizon
Reply Comments at 2-3.
FN37. NASUCA at 3.

FN26. See, e.g., NeuStar Comments at 2; Call Compliance Comments at 1-3.

FN38. See supra n.23.

FN27. See NASUCA Comments at 4.

FN39. Neustar Comments at
sohttp://www.tcpacompliance.com/.

FN28. Verizon Reply Comments at 2.

FN40. Call Compliance Comments at 1-3.

FN29. Shields comments at 2 (maintaining that only
Congress can create such an exemption).

FN41. See DMA Petition at 4.

FN30. See, e.g., AT&T Reply Comments at 2.

FN42. 2003 TCPA Order, 18 FCC Rcd at 14117-18,
para. 172.

FN31. See, e.g., ATA Comments at 3-4; Nextel Reply Comments at 2.

FN43. See supra para. 10.

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

2.

See

al-

19 F.C.C.R. 19215, 19 FCC Rcd. 19215, 33 Communications Reg. (P&F) 1100,
2004 WL 2104233 (F.C.C.)

FN44. See47 C.F.R. § 64.1200(c)(2)(i).
FN45. 2003 TCPA Order, 18 FCC Rcd at 14115,
para. 165.
FN46. See47 U.S.C. § 227(b)(1)(A).
FN47. SeeS. Rep. No. 102-178 at 5 reprinted in 1991
U.S.C.C.A.N. 1968, 1972-73 (1991) (“The Committee believes that Federal legislation is necessary to
protect the public from automated telephone calls.
These calls can be an invasion of privacy, an impediment to interstate commerce, and a disruption to
essential public safety services.”).

Page 8

1st Sess. Conference Report to Accompany H.R.
2637, Report No. 108-401 (November 25, 2003) at
641 (“To improve responsiveness to an individual's
decision to enroll in the Do-Not-Call program, the
conference report includes bill language requiring
telemarketers who are subject to the Telemarketing
Sales Rule to obtain from the Federal Trade Commission the list of telephone numbers on the Do-Not-Call
Registry once a month.”).
FN59. See FTC Order, 69 Fed. Reg. at 16372.
FN60. NADA Comments at 4-5.
FN61. FTC Order, 69 Fed. Reg. at 16372.

FN48. 2003 TCPA Order, 18 FCC Rcd at 14115,
para. 165.
FN49. 2003 TCPA Order, 18 FCC Rcd at 14117,
para. 171.
FN50. 2003 TCPA Order, 18 FCC Rcd at 14113,
para. 163.
FN51. See, e.g., BellSouth Comments at 4; Cingular
Comments at 4; SBC Comments at 3.
FN52. See Telemarketing Sales Rule, Final Rule,
Federal Trade Commission, 69 Fed. Reg. 16368
(March 29, 2004) (FTC Order).
FN53. See, e.g. ACLI Comments at 1; BellSouth
Comments at 4; Cingular Comments at 4; NASUCA
Comments at 4-5; Sprint Comments at 3; AT&T Reply Comments at 6.

FN62. See, e.g., ATA Comments at 9-10; AT&T
Comments at 11; NADA Comments at 5.
FN63. FTC Order, 69 Fed. Reg. at 16371.The FTC
notes that the national database is currently updated
and available for access by telemarketers on a daily
basis. Id. at 16368.
FN64. Thus, while sellers and telemarketers are not
required to conduct a physical download of the entire
registry to be in compliance with the rules, they must
nevertheless maintain and record a list of telephone
numbers obtained using the single number lookup
feature that the seller may not contact and document
the process, in order to benefit from the safe harbor
provision. See NADA Comments at 4-5.
FN65. See5 U.S.C. §§ 601et seq.
*19223 Appendix A

FN54. Do-Not-Call Implementation Act, Pub. L. No.
108-10, 117 Stat. 557 (2003).

Final Rules

FN55. 2004 Further Notice at para. 52.

**9 Part 64 of the Code of Federal Regulations is
amended as follows:

FN56. See, e.g, Countrywide Comments at 4 (suggesting an additional 31 days after updating the list to
purge the numbers); MCI Comments at 4 (suggesting
45 day period after obtaining the list to stop calling).

PART 64 - MISCELLANEOUS RULES RELATING TO COMMON CARRIERS
1. Authority: 47 U.S.C. § 227.

FN57. FTC Order, 69 Fed. Reg. at 16370.

*****

FN58. U.S. House of Representatives, 108th Cong.,

2. Section 64.1200(a)(iv) is added as follows:

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19 F.C.C.R. 19215, 19 FCC Rcd. 19215, 33 Communications Reg. (P&F) 1100,
2004 WL 2104233 (F.C.C.)

(iv) A person will not be liable for violating the prohibition in paragraph (a)(1)(iii) when the call is
placed to a wireless number that has been ported
from wireline service and such call is (A) a voice
call; (B) not knowingly made to a wireless number;
and (C) made within 15 days of the porting of the
number from wireline to wireless service, provided
the number is not already on the national do-not-call
registry or caller's company-specific do-not-call list.

Page 9

released by the Federal Communications Commission (Commission) on March 19, 2004. The Commission sought written public comments on the proposals
contained in the 2004 Further Notice, including
comments on the IRFA. None of the comments filed
in this proceeding were specifically identified as
comments addressing the IRFA; however, comments
that address the impact of the proposed rules and
policies on small entities are discussed below. This
present Final Regulatory Flexibility Analysis (FRFA)
conforms to the RFA.[FN68]

*****
3. Section 64.1200(c)(2)(i)(D) is revised to read as
follows:
(D) Accessing the national do-not-call database. It
uses a process to prevent telephone solicitations to
any telephone number on any list established pursuant to the do-not-call rules, employing a version of
the national do-not-call registry obtained from the
administrator of the registry no more than 31 days
prior to the date any call is made, and maintains records documenting this process; and
*****
4. Section 64.1200 is revised to read as follows:

A. Need for, and Objectives of, the Order
26. The Telephone Consumer Protection Act
(TCPA)[FN69] was enacted to address certain telemarketing practices, including calls to wireless telephone
numbers, which Congress found to be an invasion of
consumer privacy and even a risk to public
safety.[FN70] The TCPA specifically prohibits calls
using an autodialer or artificial or prerecorded message “to any telephone number assigned to a paging
service, cellular telephone service, specialized mobile
radio service, or other common carrier service, or any
service for which the called party is charged.”[FN71] In
addition, the TCPA required the Commission to “initiate a rulemaking proceeding concerning the need to
protect residential telephone subscribers' privacy
rights” and to consider several methods to accommodate telephone subscribers who do not wish to receive unsolicited advertisements.[FN72]

Note to paragraph (c)(2)(i)(D):
The requirement in paragraph 64.1200(c)(2)(i)(D) for
persons or entities to employ a version of the national
do-not-call registry obtained from the administrator
no more than 31 days prior to the date any call is
made is effective January 1, 2005. Until January 1,
2005, persons or entities must continue to employ a
version of the registry obtained from the administrator of the registry no more than three months prior to
the date any call is made.
*19224 Appendix B
Final Regulatory Flexibility Analysis
25. As required by the Regulatory Flexibility Act of
1980, as amended (RFA),[FN66] an Initial Regulatory
Flexibility Analysis (IRFA) was incorporated in the
Notice of Proposed Rulemaking and Further Notice
of Proposed Rulemaking[FN67] (2004 Further Notice)

**10 27. In 2003, the Commission released a Report
and Order (2003 TCPA Order) revising the TCPA
rules to respond to changes in the marketplace for
telemarketing.[FN73] Specifically, we 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 longstanding company-specific rules which require companies to maintain lists of consumers who have directed the company not to contact them. In addition,
we determined that the TCPA prohibits any call using an automatic telephone dialing system or an artificial or prerecorded message to any wireless telephone number.[FN74] We concluded that this encompasses both voice calls and text calls to wireless
numbers *19225 including, for example. Short Message Service calls.[FN75] We acknowledged in the
2003 TCPA Order that, beginning in November of
2003, numbers previously used for wireline service

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19 F.C.C.R. 19215, 19 FCC Rcd. 19215, 33 Communications Reg. (P&F) 1100,
2004 WL 2104233 (F.C.C.)

could be ported to wireless service providers and that
telemarketers will need to take the steps necessary to
identify these numbers.[FN76] Intermodal local number
portability (LNP) went into effect November, 2003.
We now modify the Commission's rules to establish a
limited safe harbor period in which persons will not
be liable for placing autodialed or artificial or prerecorded message calls to numbers ported from wireline to wireless service within the previous 15
days.[FN77]
28. The 2003 TCPA Order also required that telemarketers use the national do-not-call registry maintained by the FTC to identify consumers who have
requested not to receive telemarketing calls. In order
to avail themselves of the safe harbor for telemarketers, a telemarketer was required to update or
“scrub” its call list against the national do-not-call
registry every 90 days. Recently the FTC amended its
safe-harbor provision to require telemarketers to
scrub their call lists every 31 days.[FN78] We now
modify the Commission's rules to parallel changes to
the FTC's rules. With this amendment, all telemarketers are required to scrub their lists against the national do-not-call registry every 31 days in order to
avail themselves of that safe harbor.[FN79]
B. Summary of Significant Issues Raised by Public
Comments in Response to the IRFA
29. There were no comments raised that specifically
addressed the proposed rules and policies presented
in the IRFA. Nonetheless, the agency considered the
potential impact of the rules proposed in the IRFA on
small entities and attempted, to the extent possible, to
reduce the economic impact of the rules enacted
herein on such entities. Comments to the 2004 Further Notice fell into two categories. The first category
includes those comments on the safe harbor provision
for calls to wireless numbers; the second category
includes comments regarding the safe harbor provision for the national do-not-call list. These two categories of comments are discussed in the Order, paragraphs 7-11 and paragraphs 12-15, respectively.
**11 30. Two comments were filed that specifically
mentioned small businesses - Montalvan and the National Automobile Dealers Association (NADA).
Montalvan commented on the unreasonableness of
asking small businesses to scrub lists on a monthly
basis.[FN80] NADA filed comments urging the Commission not to adopt the proposed amendment requir-

Page 10

ing businesses to download the do-not-call list
monthly instead of quarterly.[FN81] NADA claims that
any benefit to maintaining consistency between the
FTC and the Commission is outweighed by the burden on small businesses caused by the scrubbing of
call lists three times more often.[FN82] In addition,
NADA seeks clarification that the use of the single
number lookup feature constitutes compliance with
the requirement that businesses check the do-not-call
list every 31 days.[FN83] Lastly, NADA argues that
small businesses need “adequate time to comply with
the *19226 monthly download requirement.”[FN84]
And, NADA seeks an effective date no earlier than
January 1, 2005 or six months after publication in the
Federal Register, whichever is later.[FN85]
C. Description and Estimate of the Number of
Small Entities to Which the Rules Will Apply
31. 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 rules
adopted herein.[FN86] The RFA generally defines the
term “small entity” as having the same meaning as
the terms “small business,” “small organization,” and
“small governmental jurisdiction.”[FN87] In addition,
the term “small business” has the same meaning as
the term “small business concern” under the Small
Business Act.[FN88] 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.[FN89]
32. The Commission's rules on telephone solicitation
and the use of autodialers and artificial or prerecorded messages apply to a wide range of entities,
including all entities that use the telephone to advertise.[FN90] That is, our action affects any entity that
uses an autodialer or prerecorded message to make
telephone calls and the myriad of businesses
throughout the nation that use telemarketing to advertise their goods or services. For instance, funeral
homes, mortgage brokers, automobile dealers, newspapers, and telecommunications companies could all
be affected. Thus, we expect that the rules adopted in
this proceeding could have a significant economic
impact on a substantial number of small entities.
33. Small Businesses.Nationwide, there are a total of
22.4 million small businesses, according to SBA
data.[FN91]

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19 F.C.C.R. 19215, 19 FCC Rcd. 19215, 33 Communications Reg. (P&F) 1100,
2004 WL 2104233 (F.C.C.)

34. Small Organizations.As of 1992, nationwide
there were approximately 275,801 small organizations [not-for-profit].[FN92]
35. Telemarketers.Again, we note that our action
affects an exhaustive list of business types. We will
mention with particularity the intermediary groups
that engage in this activity. SBA has determined that
“telemarketing bureaus” with $6 million or less in
annual receipts qualify as small businesses.[FN93] For
1997, there were 1,727 firms in the “telemarketing
bureau” category, total, which *19227 operated for
the entire year.[FN94] Of this total, 1,536 reported annual receipts of less than $5 million, and an additional 77 reported receipts of $5 million to
$9,999,999.[FN95] Therefore, the majority of such
firms can be considered to be small businesses.
D. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements for
Small Entities
**12 36. The revision to the safe harbor rules that
require telemarketers to update their lists monthly
instead of quarterly, carries no additional compliance
costs for accessing the national do-not-call registry,
because once a telemarketer has paid its fee to the
FTC the telemarketer may access the list as often as it
wants, up to once a day. There may, however, be an
increase in costs associated with scrubbing the telemarketer's call list more frequently. Increased costs
might be caused by a decrease in staff efficiency because staff will be required to scrub the call list
monthly instead of quarterly or by increased payments to a third party for “scrubbing” services. We
note in the Order, however, that the national do-notcall registry includes a feature whereby businesses
that have already downloaded the entire database
may thereafter request only a list of changes to their
previous list (containing newly added and removed
numbers), rather than downloading the entire database of approximately 60 million numbers every 31
days.[FN96] This feature should substantially alleviate
any burdens imposed on small businesses that may
result from more frequent update requirements by
minimizing for small businesses the cost of updating
the list each time they must do so. In addition, at the
request of NADA, we clarify that small sellers or
telemarketers that register and pay the annual fee to
use the national do-not-call database are not required
to either conduct an initial or subsequent download of

Page 11

the entire database if they use only the single number
lookup feature to screen their outgoing telephone
solicitations.[FN97] In conclusion, we believe that the
enhanced consumer privacy protections derived from
reducing from three months to 31 days the maximum
period in which telemarketers must update their call
lists using the do-not-call list, taken in conjunction
with the regulatory benefits to state and federal governments and consumers in establishing consistent
requirements for all telemarketers, outweigh the administrative burdens associated with this increase in
compliance requirements.
E. Steps Taken to Minimize the Significant Economic Impact on Small Entities, and Significant
Alternatives Considered
37. The RFA requires an agency to describe any significant, specifically small business, alternatives that
it has considered in developing its 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 and reporting requirements under the
rule for such 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
such small entities.”[FN98]
38. First, the TCPA specifically prohibits calls using
an autodialer or artificial or prerecorded *19228 message to any wireless telephone number.[FN99] With the
advent of intermodal number portability it became
important for companies engaged in telemarketing to
track ported numbers in order to ensure continued
compliance with the TCPA. The Commission is now
adopting a limited safe harbor for autodialed and prerecorded message calls to wireless numbers that were
ported within 15 days from a wireline service to a
wireless service provider.[FN100] It is our belief that
this 15-day safe harbor period will provide a reasonable opportunity for small businesses to identify
numbers that have been ported and to comply with
the rules. In addition, we believe that the creation of
this safe harbor will not have a significant economic
impact on any small businesses, only a benefit.
**13 39. One alternative we considered was not to
adopt a safe harbor. That alternative could make

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19 F.C.C.R. 19215, 19 FCC Rcd. 19215, 33 Communications Reg. (P&F) 1100,
2004 WL 2104233 (F.C.C.)

compliance with the TCPA's prohibition almost impossible for small businesses using autodialers and
prerecorded messages. The majority of commenters
support the adoption of a safe harbor,[FN101] although
most request a minimum of 30 days.[FN102] In our
view, 30 days places too much of a burden on consumers, who may be subjected to calls to their wireless phones for which they must pay for up to a
month's time. This is an inappropriate shifting of the
costs of advertising from businesses, including small
businesses, to wireless subscribers. We believe that
the creation of a limited safe harbor period of 15 days
balances the needs of small businesses against the
needs of wireless customers. Furthermore, we do not
believe that consumer privacy interests will be negatively impacted by our decision, in part because consumers may continue to avail themselves of the national and company-specific do-not-call lists.
40. Second, as indicated in Section D of the FRFA,
the Commission has modified the TCPA safe-harbor
provision. This modification requires that telemarketers scrub their lists on a monthly, rather than a
quarterly basis. One alternative considered by the
Commission was to leave the safe harbor unchanged.
The advantage to such an alternative was that there
would have been no increased burden on small businesses. Businesses would continue to download
numbers from the national do-not-call registry and
scrub their own call lists of those numbers every
three months. The disadvantage in maintaining the
status quo would have been that the FTC and Commission rules would be inconsistent, contrary to Congress' directive in the Do-Not-Call Implementation
Act. Small businesses subject to the jurisdiction of
both agencies would have been faced with this inconsistency. We believe that it is easier and less burdensome for small businesses if the two agencies have
consistent requirements.
41. Several commenters stated that it may take some
time for telemarketers and small businesses to implement procedures before they can access the national registry on a monthly basis.[FN103] In addition,
the FTC has indicated that some additional time is
required to enable the FTC and the vendor that operates the national do-not-call registry to implement
modifications to the registry systems anticipated by
the increase in usage resulting from this rule amendment.[FN104] For both these reasons, we establish
January 1, 2005, as the effective date of this rule

Page 12

amendment.[FN105] This additional period will provide
telemarketers and small businesses more time to
modify their procedures to accommodate these
*19229 changes.
42. REPORT TO CONGRESS: The Commission
will send a copy of the Order, including this FRFA,
in a report to be sent to Congress pursuant to the
Congressional Review Act.[FN106] In addition, the
Commission will send a copy of the Order, including
this FRFA, to the Chief Counsel for Advocacy of the
SBA. A copy of the Order and FRFA (or summaries
thereof) will also be published in the Federal Register.[FN107]
FN66. See5 U.S.C. § 603. The RFA, see5 U.S.C. §§
601-612, has been amended by the Small Business
Regulatory Enforcement Fairness Act of 1996
(SBREFA), Pub. L. No. 104-121, Title II, 110 Stat.
857 (1996).
FN67. Rules and Regulations Implementing the Controlling the Assault of Non-Solicited Pornography
and Marketing Act of 2003; Rules and Regulations
Implementing the Telephone Consumer Protection
Act of 1991, CG Docket No. 04-53, CG Docket No.
02-278, Notice of Proposed Rulemaking and Further
Notice of Proposed Rulemaking (rel. March 19,
2004) (2004 TCPA Further Notice).
FN68. See5 U.S.C. § 604.
FN69. Telephone Consumer Protection Act of 1991,
Pub. L. No. 102-243, 105 Stat. 2394 (1991), codified
at47 U.S.C. § 227. The TCPA amended Title II of the
Communications Act of 1934, 47 U.S.C. §§ 201et
seq.
FN70. See TCPA, Section 2(5), reprinted in 7 FCC
Rcd 2736 at 2744.
FN71. 47 U.S.C. § 227(b)(1)(A)(iii).
FN72. 47 U.S.C. § 227(c)(1)-(4).
FN73. See Rules and Regulations Implementing the
Telephone Consumer Protection Act of 1991, Report
and Order, 18 FCC Rcd 14014 (2003) (2003 TCPA
Order).

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19 F.C.C.R. 19215, 19 FCC Rcd. 19215, 33 Communications Reg. (P&F) 1100,
2004 WL 2104233 (F.C.C.)

FN74. 2003 TCPA Order, 18 FCC Rcd at 14115,
para. 165.
FN75. See 2003 TCPA Order, 18 FCC Rcd at 14115,
para. 165.
FN76. 2003 TCPA Order, 18 FCC Rcd at 14117,
para. 170.
FN77. See Order, supra paras. 7-11.
FN78. See Telemarketing Sales Rule, Notice of Proposed Rulemaking, Federal Trade Commission, 69
Fed. Reg. 7330 (February 13, 2004).
FN79. See Order, supra paras. 12-15.
FN80. Montalvan Comments.
FN81. NADA Comments at 1.
FN82. NADA Comments at 2, 3.
FN83. NADA Comments at 4.
FN84. NADA Comments at 5.

Page 13

FN91. See SBA, Programs and Services, SBA Pamphlet No. CO-0028, at page 40 (July 2002).
FN92. 1992 Economic Census, U.S. Bureau of the
Census, Table 6 (special tabulation of data under contract to Office of Advocacy of the U.S. Small Business Administration).
FN93. See13 C.F.R. § 121.201, North American Industry Classification System (NAICS) code 561422.
FN94. U.S. Census Bureau, 1997 Economic Census,
Subject Series: “Administrative and Support and
Waste Management and Remediation Services,” Table 4, Receipts Size of Firms Subject to Federal Income Tax: 1997, NAICS code 561422 (issued October 2000).
FN95. U.S. Census Bureau, 1997 Economic Census,
Subject Series: “Administrative and Support and
Waste Management and Remediation Services,” Table 4, Receipts Size of Firms Subject to Federal Income Tax: 1997, NAICS code 561422 (issued October 2000).
FN96. See Order, supra at para. 14, citing FTC Order, 69 Fed. Reg. at 16372.

FN85. NADA Comments at 5.
FN97. NADA Comments at 4-5.
FN86. 5 U.S.C. § 604(a)(3).
FN98. 5 U.S.C. § 603(c)(1) - (c)(4).
FN87. 5 U.S.C. § 601(6).
FN99. See 2004 TCPA Further Notice at para. 43.
FN88. 5 U.S.C. § 601(3) (incorporating by reference
the definition of “small-business concern” in the
Small Business Act, 15 U.S.C. § 632). Pursuant to 5
U.S.C. § 601(3), the statutory definition of a small
business applies “unless an agency, after consultation
with the Office of Advocacy of the Small Business
Administration and after opportunity for public
comment, establishes one or more definitions of such
term which are appropriate to the activities of the
agency and publishes such definition(s) in the Federal
Register.”

FN100. See Order, supra paras. 7-11.
FN101. See, e.g., ATA Comments at 1-2; AT&T
Comments 1; BellSouth Comments at 2; Cingular
Comments at 1; Countrywide Comments at 6; DMA
Comments at 2; MCI Comments at 2; SBC Comments at 1.

FN89. 15 U.S.C. § 632.

FN102. See, e.g., AT&T Comments 7-9; BellSouth
Comments at 2; DMA Comments at 3; SBC Comments at 2. See also MCI Comments at 10 (requesting a “reasonable” time).

FN90. 47 C.F.R. § 64.1200.

FN103. See, e.g., ATA Comments at 9-10; AT&T

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19 F.C.C.R. 19215, 19 FCC Rcd. 19215, 33 Communications Reg. (P&F) 1100,
2004 WL 2104233 (F.C.C.)

Comments at 11; NADA Comments at 5.
FN104. FTC Order, 69 Fed. Reg. at 16371.The FTC
notes that the national database is currently updated
and available for access by telemarketers on a daily
basis. Id. at 16368.
FN105. Order, supra para. 15.
FN106. See5 U.S.C. § 801(a)(1)(A).
FN107. See5 U.S.C. § 604(b).
19 F.C.C.R. 19215, 19 FCC Rcd. 19215, 33 Communications Reg. (P&F) 1100, 2004 WL 2104233
(F.C.C.)
END OF DOCUMENT

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