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 6

25 F.C.C.R. 1501, 25 FCC Rcd. 1501, 2010 WL 276614 (F.C.C.)

25 F.C.C.R. 1501, 25 FCC Rcd. 1501, 2010 WL
276614 (F.C.C.)
Federal Communications Commission (F.C.C.)
Notice of Proposed Rulemaking
**1 IN THE MATTER OF RULES AND REGULATIONS IMPLEMENTING THE TELEPHONE
CONSUMER PROTECTION ACT OF 1991
CG Docket No. 02-278
FCC 10-18
Adopted: January 20, 2010
Released: January 22, 2010
Comment Date: (60 days after date of publication in
the Federal Register).
Reply Comment Date: (30 days after Comment
Date).
*1501 By the Commission: Chairman Genachowski
and Commissioners Copps, McDowell, Clyburn, and
Baker issuing separate statements.
*1502 I. INTRODUCTION
1. In this Notice of Proposed Rulemaking (Notice or
NPRM), we invite comment on proposed revisions to
our rules under the Telephone Consumer Protection
Act (TCPA)[FN1] that would harmonize those rules
with the Federal Trade Commission's (FTC's) recently amended Telemarketing Sales Rule.[FN2] As
amended, the Telemarketing Sales Rule differs in
certain respects from the Commission's TCPA rules
regarding prerecorded telemarketing calls (also
known as “robocalls”) and other telemarketing practices. Because the majority of entities that use prerecorded telemarketing calls are subject to both agencies' telemarketing regulations, most regulated entities must comply with the FTC's more restrictive
standards.[FN3] However, entities under the sole jurisdiction of the Commission -- such as common carriers (including telephone companies and airlines),
banks, and insurance companies -- are subject to less
restrictive standards.[FN4]

Page 1

2. In an effort to remove certain differences in the
treatment of entities that operate outside of the FTC's
jurisdiction, and to further empower residential telephone subscribers to avoid receiving telephone solicitations to which they object, we seek comment on
whether we should conform our TCPA rules to the
FTC's Telemarketing Sales Rule by taking the following steps: (1) requiring sellers and telemarketers
to obtain telephone subscribers' express written consent (including electronic methods of consent) to
receive prerecorded telemarketing calls even when
there exists an established business relationship between the caller and the consumer; (2) exempting
certain federally regulated healthcare-related calls
from the general prohibition on prerecorded telemarketing calls to residential telephone lines; (3) requiring that prerecorded telemarketing calls include an
automated, interactive mechanism by which a consumer may “opt out” of receiving future prerecorded
messages from a seller or telemarketer; and (4)
adopting a “per campaign” standard for measuring
the maximum percentage of live telemarketing sales
calls that a telemarketer lawfully may drop or “abandon” as a result of the use of automated dialing software or other automated dialing equipment. We seek
comment on whether these proposed revisions would
benefit consumers and industry by creating greater
symmetry between the two agencies' regulations, and
by extending the FTC's standards to regulated entities
that are not currently subject to the FTC's rules.
**2 3. We note that the rule revisions proposed
herein would make no changes with respect to categories of prerecorded message calls that are not covered by our TCPA rules. Those categories include
calls by or on behalf of tax-exempt non-profit organizations; calls for political purposes, including political polling calls and other calls made by politicians or
political campaigns; and calls for other noncommercial purposes, including those that deliver purely “informational” messages -- for example, prerecorded
calls that notify recipients of a workplace or school
closing.[FN5] In addition, because the TCPA's restrictions on prerecorded messages do not apply to calls
initiated for emergency purposes, the proposed rule
revisions would not affect messages sent to consumers to alert them to emergency *1503 situations, in-

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

25 F.C.C.R. 1501, 25 FCC Rcd. 1501, 2010 WL 276614 (F.C.C.)

cluding, for example, emergency messages permitted
by the WARN Act[FN6] and/or the Commercial Mobile Alert System (CMAS).[FN7]
II. BACKGROUND
A. The Telephone Consumer Protection Act of
1991 (47 U.S.C. § 227); FCC Regulations (47
C.F.R. §§ 64.1200, et seq.)
4. Overview and Scope of Coverage. The TCPA imposes restrictions on the use of the telephone network
for unsolicited advertising by telephone and facsimile.[FN8] The scope of the Commission's authority under the TCPA is broad and extends to any person
who engages in marketing activities covered by the
TCPA.[FN9] In addition, the TCPA, by amending section 2(b) of the Communications Act, augments the
Commission's traditional interstate authority by specifically authorizing it to apply the TCPA's restrictions to intrastate telemarketing activities as
well.[FN10]
5. The National Do-Not-Call Registry: Restrictions
on Live Telephone Solicitations (47 U.S.C. § 227(c)).
The TCPA directs the Commission to adopt rules “to
protect residential telephone subscribers' privacy
rights to avoid receiving telephone solicitations to
which they object.”[FN11] The Commission first
adopted rules implementing the TCPA in 1992.[FN12]
In the 1992 TCPA Order, the Commission established company-specific “do-not-call” requirements,
under which each company engaged in telephone
solicitation was made responsible for maintaining a
list of residential telephone subscribers who had
asked not to be called by that company.[FN13] Citing
“widespread consumer dissatisfaction” with the effectiveness of the company-specific rules and everincreasing numbers of telemarketing calls, the Commission revised its TCPA rules in 2003 to establish a
national do-not-call registry and to prohibit telemarketers from contacting a residential subscriber whose
telephone number appears on the national do-not-call
list, unless the call is subject to a recognized exemption.[FN14]*1504 The national do-not-call registry,
which went into effect on October 1, 2003, is jointly
administered by this Commission and by the FTC.
**3 6. TCPA Restrictions on the Use of Automated
Telephone Equipment, Including Prerecorded Messages (47 U.S.C. § 227(b)). A separate section of the
TCPA regulates the use of automated telephone

Page 2

equipment.[FN15] One provision, codified in subsection 227(b)(1)(B), makes it unlawful to place a nonemergency telephone call to a residential line “using
an artificial or prerecorded voice” without the recipient's “prior express consent” unless the call is “exempted by rule or order of the Commission under
paragraph (2)(B).”[FN16] Paragraph (2)(B), in turn,
authorizes the Commission to enact limited exemptions from this ban, including exemptions for calls
“that are not made for a commercial purpose” and for
commercial calls that the Commission has determined will not adversely affect the privacy rights of
the called party and that do not transmit an unsolicited advertisement.[FN17] Under this authority, the
Commission has exempted from the prohibition on
prerecorded message calls to residences, among others, calls to a party with whom the caller has an established business relationship.[FN18]
7. Another TCPA provision, codified in subsection
227(b)(1)(A), prohibits certain additional categories
of automated calls absent an emergency or the “prior
express consent” of the called party.[FN19] This provision prohibits the use of automatic telephone dialing
systems (autodialers) or artificial or prerecorded messages when calling: emergency telephone lines,
health care facilities, telephone numbers assigned to
wireless services, and services for which the called
party is charged for the call.[FN20] In the 2003 TCPA
Order, the Commission noted that Congress prohibited the use of automated equipment with respect to
these particular categories of calls because such practices were determined “to threaten public safety and
inappropriately shift marketing costs from sellers to
consumers.”[FN21] Paragraph 2(C) authorizes the
Commission to exempt from this provision calls to a
number assigned to a wireless service that are not
charged to the called party subject to conditions necessary to protect consumers' privacy rights.[FN22]
*1505 B. The Telemarketing Consumer Fraud and
Abuse Prevention Act (15 U.S.C. §§ 6101-6108);
FTC Telemarketing Sales Rule (16 C.F.R. Part
310)
8. Overview and Scope of Coverage. The FTC has
authority under the Telemarketing Consumer Fraud
and Abuse Prevention Act (Telemarketing Act) to
adopt rules prohibiting deceptive and abusive telemarketing acts or practices, including “unsolicited
telephone calls which the reasonable consumer would
consider coercive or abusive of such consumer's right

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

25 F.C.C.R. 1501, 25 FCC Rcd. 1501, 2010 WL 276614 (F.C.C.)

to privacy.”[FN23] The body of regulations adopted by
the FTC to implement the Telemarketing Act is
known as the Telemarketing Sales Rule.[FN24]
**4 9. The scope of the FTC's authority to regulate
telemarketing activities is more limited than the
Commission's. For example, three types of entities
are specifically exempt from the FTC's jurisdiction,
and therefore are not covered by the Telemarketing
Sales Rule: 1) banks, federal credit unions, and federal savings and loans; 2) common carriers (such as
telephone companies and airlines) when engaged in
common carrier activity; and 3) non-profit organizations.[FN25] Another jurisdictional limitation is imposed by the McCarran-Ferguson Act, which provides that “the Federal Trade Commission Act, as
amended, shall be applicable to the business of insurance to the extent that such business is not regulated
by state law.”[FN26] Finally, the FTC's rules only apply
to interstate telemarketing calls.[FN27]
10. The Telemarketing Sales Rule.The original Telemarketing Sales Rule, as promulgated in 1995, established company-specific do-not-call requirements
that, like the Commission's 1992 rules, prohibited a
telemarketer from placing telemarketing calls to persons who had previously requested not to receive
sales calls from that company.[FN28] In 2003, the FTC
amended the Telemarketing Sales Rule by, among
other things, establishing the national do-not-call
registry, making for-profit telemarketers who solicit
charitable contributions on behalf of charities subject
to company-specific do-not-call requirements, and
prohibiting telemarketers from abandoning more than
three percent of outbound telemarketing calls (subject
to a safe harbor provision).[FN29]

Page 3

ing future prerecorded messages from the seller or
telemarketer.[FN32] Finally, the FTC announced a
technical amendment modifying the method by
which it calculates the three percent “call abandonment rate.”[FN33] In acknowledging the differences
between the FTC's amended rule and the Commission's TCPA rules governing prerecorded telemarketing calls, the FTC indicated that because there is no
actual conflict between the two sets of rules, entities
subject to the regulatory authority of both agencies
need only comply with the FTC's more restrictive
requirements in order to ensure compliance with both
agencies' regulations.[FN34]
C. The Do Not Call Implementation Act (15
U.S.C. §§ 6101-6108); Coordination Between the
FTC and the FCC
**5 12. Coordination between the FTC and the FCC
on the do-not-call registry was mandated by Congress
in 2003 through the Do-Not-Call Implementation Act
(DNCIA).[FN35] The DNCIA provided that “the Federal Communications Commission shall consult and
coordinate with the Federal Trade Commission to
maximize consistency with the rule promulgated by
the Federal Trade Commission” in 2002.[FN36] Although each agency's regulations are the product of
distinct statutory mandates, the agencies have, for the
most part, created consistent and complementary
regulatory schemes.[FN37] There is also a Memorandum of Understanding between the FCC and FTC on
enforcement of the agencies' telemarketing rules to
avoid unnecessary duplication of enforcement efforts.[FN38]
*1507 III. DISCUSSION
A. Prerecorded Message Calls

11. 2008 Amendments to the Telemarketing Sales
Rule. On August 19, 2008, the FTC issued revisions
to its Telemarketing Sales Rule regarding the permissibility of prerecorded telemarketing messages.[FN30]
In adopting these revisions, the FTC determined that
it is an abusive telemarketing act or practice for a
seller or telemarketer to initiate an outbound telephone call that delivers a prerecorded telemarketing
message unless, among other things, the seller has
previously obtained the recipient's signed, written
agreement to receive such calls.[FN31] The FTC also
announced that prerecorded *1506 telemarketing
calls must include an automated, interactive mechanism by which a consumer may “opt out” of receiv-

1. Written Consent Requirement
13. The FCC's TCPA Rules. As noted above, the
TCPA prohibits the delivery of artificial or prerecorded voice messages to residential telephone lines,
absent an emergency, without the “prior express consent” of the called party.[FN39] Under the Commission's TCPA rules and orders, prior express consent
of a residential telephone subscriber to receive a prerecorded telemarketing call (or live telephone solicitation) must be in writing if the subscriber's number
is listed on the national do-not-call registry, but may
be obtained orally or in writing if the subscriber's
number is not listed on the registry.[FN40] In explain-

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

25 F.C.C.R. 1501, 25 FCC Rcd. 1501, 2010 WL 276614 (F.C.C.)

ing the basis for this distinction, the Commission has
noted that a residential subscriber who places his or
her number on the registry has indicated a desire,
through the act of registering, not to receive unsolicited telemarketing calls and, as such, written consent
evidences the subscriber's wish to be contacted by
only particular sellers at a particular number.[FN41]
When written consent is required under the Commission's rules and orders (because the subscriber is
listed on the national do-not-call registry), the seller
or telemarketer must obtain a signed, written agreement between the subscriber and seller stating that
the subscriber agrees to be contacted by that seller
and including the telephone number to which the
calls may be placed.[FN42] The Commission has indicated that the term “signed” may include an electronic or digital form of signature, to the extent such
form of signature is recognized as a valid signature
under applicable federal or state contract law.[FN43]
14. With respect to a residential subscriber who has
not listed his number on the national do-not-call registry, the Commission has declined to require written
consent to deliver prerecorded messages to such a
subscriber and noted that allowing oral consent in
that context is consistent with statements in the legislative history suggesting that Congress did not believe written consent was needed with respect to calls
placed to unregistered subscribers.[FN44] Whether consent has been obtained orally or in writing, a seller
*1508 or telemarketer placing a prerecorded telemarketing call must be prepared to provide “clear and
convincing evidence” that it received prior express
consent from the called party.[FN45]
**6 15. The FTC's Telemarketing Sales Rule. Under
the Telemarketing Sales Rule, as amended, prior express consent to receive prerecorded telemarketing
calls must be in writing.[FN46] The written agreement
must be signed by the consumer and must be sufficient to show that he or she: (1) received “clear and
conspicuous disclosure” of the consequences of providing the requested consent -- i.e., that the consumer
will receive future calls that deliver prerecorded messages by or on behalf of a specific seller--and (2)
having received this information, agrees unambiguously to receive such calls at a telephone number the
consumer designates.[FN47] In addition, the written
agreement must be obtained “without requiring, directly or indirectly, that the agreement be executed as
a condition of purchasing any good or service.”[FN48]

Page 4

The FTC has determined that written agreements
obtained in compliance with the E-SIGN Act will
satisfy the requirements of its rule, such as, for example, agreements obtained via an email or website
form, telephone keypress, or voice recording.[FN49]
Finally, under the Telemarketing Sales Rule, the
seller bears the burden of proving that a clear and
conspicuous disclosure was provided, and that an
unambiguous consent was obtained.[FN50]
16. Discussion. Consistent with Congress's directive
in the DNCIA to “maximize consistency” of the
Commission's TCPA rules with the FTC's Telemarketing Sales Rule,[FN51] we seek comment on whether
we should revise sections 64.1200(a)(1) and
64.1200(a)(2) of our rules to provide that, for all
calls, prior express consent to receive prerecorded
telemarketing messages must be obtained in writing.[FN52] We seek comment on these proposed revisions and specific related issues in the discussion that
follows.[FN53]
*1509 17. As an initial matter, we seek comment on
the Commission's authority to adopt a prior written
consent requirement similar to the FTC's.[FN54] Specifically, while the term “prior express consent” appears in both subsections 227(b)(1)(A) and (b)(1)(B),
the statute is silent regarding the precise form of such
consent (i.e., oral or written). Certain statements in
the legislative history, however, suggest that Congress may have contemplated that consent may be
obtained orally or in writing.[FN55]
18. Given that such a rule change would permit a
telemarketer wishing to deliver prerecorded telemarketing messages to residential subscribers to obtain
agreements from the subscribers by any electronic
means authorized by the E-SIGN Act (including, for
example, email, web form, telephone key press, or
voice recording), we seek comment on whether Congressional concerns expressed nearly two decades
ago regarding the potential burdens of a written consent requirement remain relevant today in light of the
multitude of quick and cost effective options now
available for obtaining written consent, other than via
traditional pen and paper. We also note that section
227(b)(2)(B) of the TCPA, in authorizing the Commission to adopt exemptions from the prerecorded
message prohibition, states that it may do so “subject
to such conditions as the Commission may prescribe.”[FN56] This statement suggests that Congress

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

25 F.C.C.R. 1501, 25 FCC Rcd. 1501, 2010 WL 276614 (F.C.C.)

intended the Commission to exercise discretion in
establishing the parameters of any exemption from
the prohibition on prerecorded messages. We seek
comment on whether the discretion afforded the
Commission in this subsection extends to establishing a written consent requirement.[FN57] We also seek
comment on how best to reconcile the congressional
objective to maximize consistency between the FTC's
rule and the Commission's rule with the statements
referenced above in the TCPA's legislative history
reflecting the concern that written consent may prove
unduly burdensome to telemarketers and to subscribers who wish to receive telephone solicitations.[FN58]
We seek comment on whether the convenience afforded by the E-SIGN Act addresses these concerns.
**7 19. As noted above, when written consent is required under the Commission's current rules (because
the called party's number is listed on the national donot-call registry), the seller or telemarketer must obtain a signed, written agreement between the subscriber and seller stating that the subscriber *1510
agrees to be contacted by that seller and including the
telephone number to which the calls may be
placed.[FN59] If the Commission were to adopt a written consent requirement for placing prerecorded
telemarketing calls to unregistered subscribers, we
seek comment on whether we also should adapt existing section 64.1200(c)(2)(ii) of our rules (governing
the content of written consent agreements) to apply
specifically to prerecorded telemarketing calls, as the
FTC has done in its Telemarketing Sales Rule.[FN60]
We tentatively conclude that requiring a written
agreement evidencing consent to receive prerecorded
messages in particular, such as that required by the
FTC, may help to ensure that consumers are adequately apprised of the specific nature of the consent
that is being requested and, in particular, of the fact
that they will receive prerecorded message calls as a
consequence of their agreement.
20. Assuming the Commission has legal authority to
adopt a written consent requirement, we seek comment on whether we should adopt the same requirement both for calls governed by section 227(b)(1)(A)
(generally prohibiting automated or artificial or prerecorded message calls without prior express consent
to emergency lines, health care facilities, and cellular
services), and for calls governed by section
227(b)(1)(B) (generally prohibiting prerecorded message calls without prior express consent to residential

Page 5

telephone lines).[FN61] Because the two provisions
include an identically worded exception for calls
made with the “prior express consent of the called
party,” we tentatively conclude that any written consent requirement adopted by the Commission should
apply to both provisions. We seek comment on this
tentative conclusion.
21. We also seek information concerning the extent
to which, in the absence of written consent, residential subscribers have been targeted by unscrupulous
senders of prerecorded messages who erroneously
claim to have obtained the subscriber's oral consent.
If, after reviewing the record, we determine that the
Commission does not have legal authority to adopt a
written consent requirement, we seek comment on
what, if any, additional steps should be required by
senders who choose to obtain consent orally in order
to verify that consent was, in fact, given.
22. As a policy matter, we tentatively conclude that
harmonizing our prior consent requirement with the
FTC's may reduce the potential for industry and consumer confusion surrounding a telemarketer's obligations to the extent that similarly situated entities
would no longer be subject to different requirements
depending upon whether an entity is subject to the
FTC's rule or to the Commission's rule. We tentatively conclude that written consent also may enhance the Commission's enforcement efforts and
serve to protect both consumers and industry from
erroneous claims that consent was or was not given,
to the extent that, unlike oral consent, the existence of
a paper or electronic record may provide unambiguous proof of consent. We seek comment on these
tentative conclusions.
**8 *1511 23. We note that in light of the numerous
options available today under the E-SIGN Act to obtain a written agreement, a telemarketer may be afforded flexibility to determine the form of “written”
consent that is most appropriate, least burdensome,
and most cost effective for that particular business
(e.g., email, website form, telephone keypress, or
voice recording). We seek information and data on
the specific compliance costs and burdens associated
with various written consent options under the ESIGN Act and on the extent to which sellers and
telemarketers are already utilizing these methods for
obtaining consumer consent, either pursuant to the
FTC's amended Telemarketing Sales Rule or pursu-

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

25 F.C.C.R. 1501, 25 FCC Rcd. 1501, 2010 WL 276614 (F.C.C.)

Page 6

ant to Commission rules when a called party's number is listed on the national do-not-call registry. Finally, to the extent that the Commission currently
requires sellers and telemarketers placing prerecorded
telemarketing calls to be prepared to provide “clear
and convincing evidence” of the receipt of prior express consent from the called party, even when consent has been obtained orally, we seek comment on
the extent to which our adoption of a written consent
requirement would add to the compliance burden
associated with this existing requirement.[FN62]

Telemarketing Sales Rule for prerecorded telemarketing calls to established business customers.[FN68] Under the proposed safe harbor, prerecorded messages
to consumers with whom a seller has an “established
business relationship” (as defined by the FTC's rules)
would not violate the FTC's Telemarketing Sales
Rule if, among other things, a keypress opt-out
mechanism or other means were provided at the outset of the call for consumers to add their telephone
number to the seller's company-specific do-not-call
list.[FN69]

2. Exemption for Prerecorded Telemarketing
Calls to Established Business Relationship Customers
24. The FCC's TCPA Rules. The TCPA prohibits the
use of artificial or prerecorded messages in telephone
calls to residential (wireline) numbers without the
prior express consent of the called party, but permits
the Commission to exempt from this provision calls
that are non-commercial and commercial calls that
“do not adversely affect the privacy rights of the
called party” and that do not transmit an “unsolicited
advertisement.”[FN63] The TCPA does not explicitly
exempt from the prohibition on artificial and prerecorded message calls those from a party with whom
the subscriber has an established business relationship. Nevertheless, in 1992, the Commission determined to create such an exemption, based on its authority under the TCPA to exempt commercial calls
that “do not adversely affect residential subscriber
privacy interests.”[FN64] The Commission concluded,
based upon “the comments received and the legislative history,” that a solicitation to someone with
whom a prior business relationship exists does not
adversely affect subscriber privacy interests.[FN65] It
further concluded that such a solicitation can be
“deemed to be invited or permitted” by a subscriber
in light of the business relationship.[FN66] Finally, noting that the legislative history indicates that the
TCPA “does not intend to unduly interfere with ongoing business relationships,” the Commission stated
that “requiring actual *1512 consent to prerecorded
message calls where [established business] relationships exist could significantly impede communications between businesses and their customers.”[FN67]

26. In 2006, the FTC denied the proposed safe harbor
request that would have permitted prerecorded telemarketing calls to established business customers
based, in large measure, on the more than 13,000
consumer comments it had received opposing the
proposal.[FN70] According to the FTC, many consumers expressed the view that, in light of the “intrusive
and impersonal nature” of prerecorded messages,
neither a prior inquiry nor a purchase should be
deemed to imply consumer consent to receive future
prerecorded solicitations from a seller.[FN71] The FTC
noted that this reaction was contrary to prior consumer support among commenters for an exemption
to allow live telemarketing calls to established business customers.[FN72] In addition, the FTC denied the
proposed safe harbor based on record evidence indicating, among other things, that: 1) the self interest of
sellers in retaining established customers could not be
relied on to prevent abuse through excessive prerecorded message telemarketing, especially as new
digital technologies, including VoIP, reduce the cost
of transmitting prerecorded telemarketing messages
by telephone;[FN73] 2) prerecorded telemarketing messages impose potential costs, including risks to health
and safety when an extended message ties up a line
and prevents consumers from placing emergency
calls, as well as burdens on consumers, including
costs to store and retrieve prerecorded messages on
home answering machines or voicemail services;[FN74]
and 3) various methods by which *1513 consumers
may elect to opt out of future prerecorded message
calls are often cumbersome to use or simply do not
work.[FN75] Based on this record, the FTC changed
course and published a new proposed amendment to
the Telemarketing Sales Rule to expressly prohibit all
unsolicited prerecorded telemarketing calls without
the consumer's prior written agreement, even with
respect to prerecorded calls to established business
relationship customers.[FN76]

**9 25. The FTC's Telemarketing Sales Rule. In
2004, the FTC published a notice of proposed rulemaking in which it proposed, at the request of a telemarketer, the creation of a safe harbor under the

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

25 F.C.C.R. 1501, 25 FCC Rcd. 1501, 2010 WL 276614 (F.C.C.)

27. In 2008, the FTC amended the Telemarketing
Sales Rule to make explicit that the existence of an
established business relationship will not serve as
authorization for placing prerecorded telemarketing
calls. Thus, although an established business relationship will continue to serve as authorization for placing live telemarketing calls to consumers under the
FTC's Telemarketing Sales Rule, it no longer serves
as authorization for placing prerecorded telemarketing calls. As amended, the FTC's Telemarketing
Sales Rule prohibits prerecorded message calls unless
the called party has given prior express written consent (see section III.A.1, supra) and the call complies
with certain additional requirements in §
310.4(b)(1)(v) (see section III.A.4, infra).[FN77]
**10 28. Discussion. In light of the substantial record
of public comments developed over the course of the
FTC's four-year rulemaking opposing the creation of
a safe harbor for prerecorded telemarketing calls to
established business customers, and in view of Congress's mandate to maximize consistency between the
Commission's rules and the FTC's Telemarketing
Sales Rule, we seek comment on whether the Commission should reconsider its 1992 determination that
an established business relationship may be deemed
to constitute express invitation or permission to receive
unsolicited
prerecorded
telemarketing
calls.[FN78] The FTC's 2008 rule amendments make
explicit that, absent a consumer's express prior written agreement, sellers and telemarketers are prohibited from delivering a prerecorded telemarketing
message, regardless of whether the call is made to a
consumer who has an established business relationship with the seller. As a result, an “established business relationship” currently provides the necessary
permission to deliver prerecorded telemarketing messages only for entities subject to the Commission's,
but not the FTC's, jurisdiction (e.g., banks, airlines,
common carriers). Based on the foregoing, we seek
comment on whether the Commission should conform its rule to the FTC's Telemarketing Sales Rule
by eliminating the established business relationship
exemption from the general prohibition on prerecorded telemarketing calls to residential telephone
lines.
29. As noted above, the Commission created the “established business relationship” exemption from the
TCPA's ban on artificial or prerecorded messages

Page 7

based on its authority under the TCPA to exempt
calls that “do not adversely affect residential subscriber privacy interests.”[FN79] It reasoned that a subscriber's privacy interests are not adversely affected
by the receipt of such prerecorded message calls because, in that instance, the solicitation can be
“deemed to be invited or permitted” by the *1514
subscriber in light of the business relationship.[FN80]
In light of the strenuous opposition expressed by the
thousands of consumers who filed comments in the
FTC's rulemaking, we seek comment on the continued validity of this determination and whether prerecorded telemarketing calls (i.e., sales calls) may reasonably be “deemed invited or permitted” by established business customers.[FN81] In particular, we seek
comment on whether our established business relationship exception remains supportable on the basis
that artificial or prerecorded message calls to established customers do not adversely affect residential
subscriber privacy interests and do not transmit an
unsolicited advertisement.[FN82]
30. In the 1992 rulemaking, the Commission also
expressed the concern that “requiring actual consent
to prerecorded message calls where [established
business] relationships exist could significantly impede communications between businesses and their
customers” and, as such, might be at odds with
statements in the legislative history indicating Congress's desire not to “unduly interfere with ongoing
business relationships.”[FN83] We seek comment on
the extent to which authorization to receive prerecorded message calls based on prior written or oral
consent (rather than on the basis of an established
business relationship) would in fact “unduly interfere
with ongoing business relationships” or “impede
communications” between businesses and their customers. In particular, we seek comment on whether
technological advances, such as the use of one or
more methods available under the E-SIGN Act for
establishing a consumer's prior express written consent to receive prerecorded telemarketing calls, have
minimized the burden associated with obtaining the
express consent of established business customers
(e.g., instructing an established customer during a
live telephone solicitation to use a keypress feature to
request future prerecorded message calls).
**11 31. We also seek specific comment on the experiences of telemarketers that have conducted marketing campaigns on behalf of sellers that are subject

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

25 F.C.C.R. 1501, 25 FCC Rcd. 1501, 2010 WL 276614 (F.C.C.)

to the FTC's recently amended Telemarketing Sales
Rule in obtaining the requisite prior written consent
from those businesses' established customers. Has the
FTC's revised rule had the effect of impeding communications between businesses and their customers
and, if so, in what ways? If the Commission were to
retain the current exemption for established business
customers, we seek comment, particularly from individual consumers and consumer groups, regarding
whether consumers would support the use of prerecorded telemarketing messages by sellers and telemarketers with established business customers if such
messages provided an interactive opt-out mechanism
that would provide a means to avoid future prerecorded messages from that seller.
32. Finally, we tentatively conclude that conforming
our rule governing prerecorded message calls to established business customers to the FTC's may reduce
the potential for industry and consumer confusion
surrounding a telemarketer's authority to place unsolicited prerecorded message calls to established customers to the extent that similarly situated entities
would no longer be subject to different requirements
depending upon whether an entity is subject to the
FTC's rule or to the Commission's. We seek comment
on this tentative conclusion.
*1515 3. Exemption for Health Care Related Calls
Subject to HIPAA
33. The FCC's TCPA Rules. As previously noted,
section 227 allows the Commission to create exemptions from the TCPA's ban on artificial or prerecorded messages to residential lines for calls that are
non-commercial and for commercial calls that do not
adversely affect the privacy rights of the called party
and that do not transmit an unsolicited advertisement.[FN84] The Commission's prerecorded message
rules currently contain no specific exemption for
healthcare-related prerecorded message calls that are
subject to the Health Insurance Portability and Accountability Act of 1996 (HIPAA).[FN85]
34. The FTC's Telemarketing Sales Rule. In its 2008
amendments to the Telemarketing Sales Rule, the
FTC exempted from its prior written consent requirement healthcare-related prerecorded message
calls that are subject to HIPAA.[FN86] These prerecorded calls include, among others, flu shot and other
immunization reminders, prescription refill reminders, health screening reminders; calls to obtain per-

Page 8

mission to contact doctors for renewal of medication
or medical supply orders; calls to obtain documentation needed for billing health plans; calls by home
health agencies to follow-up on patients for six
months after discharge; calls monitoring patient
compliance with prescribed medical therapies; and
calls encouraging enrollment in disease management
or treatment programs, and in migration from
branded to generic drugs, and from retail to mail order pharmacies.[FN87] The FTC noted commenters'
fear that such calls may be subject to the Telemarketing Sales Rule to the extent that they can result in a
payment or co-pay for medication, durable medical
equipment, or medical services.[FN88] An exemption is
necessary, the FTC determined, because (among
other things) the individuals most in need of these
healthcare-related prerecorded messages (elderly or
ill patients) might be unable or simply unlikely to
take the steps necessary to provide their express written consent to receive them.[FN89] To the extent that
the communications between healthcare-related entities subject to HIPAA regulations and their customers
already are subject to extensive federal regulations,
some of which directly address the making of telephone solicitations to patients, the FTC was persuaded that there would be little risk that the creation
of an exemption for these calls would lead to abusive
practices by these entities.[FN90] Finally, citing evidence that prerecorded healthcare messages of the
type described above are generally deemed more
welcome and less intrusive by consumers, the FTC
determined that the creation of an exemption for this
category of calls would not adversely affect consumer privacy rights.[FN91]
**12 35. Discussion. On the basis of information
presented in the record of the FTC's rulemaking proceeding on healthcare-related prerecorded message
calls made by, or on behalf of, a covered entity or its
business associate, as those terms are defined in the
HIPAA Privacy Rule, we seek comment on whether
the Commission likewise should exempt such calls
from the general prohibition on prerecorded message
calls to residential lines under the TCPA. If so, we
seek comment on the Commission's authority to exempt these calls either under section 227(b)(2)(B)(i)
(calls that are not made for a *1516 commercial purpose),[FN92] or under section 227(b)(2)(B)(ii) (commercial calls that do not adversely affect the privacy
rights of the called party and that do not transmit an
unsolicited advertisement).[FN93] In addition, we note
that, with limited exception, HIPAA requires that a

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

25 F.C.C.R. 1501, 25 FCC Rcd. 1501, 2010 WL 276614 (F.C.C.)

“covered entity” obtain an individual's written authorization before using protected health information
(including the individual's name and telephone number) for marketing purposes. As a practical matter,
this HIPAA restriction (in conjunction with other
HIPAA provisions) would appear to preclude or limit
the delivery of prerecorded telemarketing calls placed
by a “covered entity” or its “business associate” to
individuals with whom the covered entity or business
associate has no pre-existing relationship (i.e., “cold
calling” of consumers). We seek comment on this
aspect of the HIPAA requirements, on the relative
frequency and volume of healthcare-related prerecorded telemarketing calls placed to individuals by
entities that do not have a pre-existing relationship
with the consumer, and on the extent to which consumers consider such calls intrusive or an invasion of
privacy.
36. We note that when one of the Commission's
TCPA rules differs substantively from the FTC's
Telemarketing Sales Rule, it has been generally understood that the more restrictive requirement prevails and sets the standard applicable to all entities
that are subject to the jurisdiction of both agencies.[FN94] In this instance, although the FTC has
adopted a more specific provision, the Commission's
rule, by providing no exemption for healthcarerelated prerecorded message calls subject to HIPAA,
is arguably more restrictive. Accordingly, we seek
comment on the practical impact of this disparity on
regulated entities currently and if the Commission
does not adopt a similar exemption in the future.[FN95]
4. Opt-Out Mechanism
37. The FCC's TCPA Rules. The TCPA directs the
Commission to prescribe technical and procedural
standards for systems that are used to transmit “any”
artificial or prerecorded voice message via telephone.[FN96] Under any Commission-adopted standards, the entity initiating a call must be identified at
“the beginning” of a prerecorded message, and, “during or after the message,” the telephone number or
address of such entity must be provided.[FN97] Such
Commission-adopted standards also must require that
a prerecorded message call “automatically release the
called party's line within 5 seconds of the time notification is transmitted to the system that the called
party has hung up, to allow the called party's line to
be used to make or receive other calls.”[FN98] Consistent with the TCPA's technical and procedural stan-

Page 9

dards provision, the Commission's rules require that,
at the beginning of all artificial or prerecorded *1517
message calls, the message identify the entity responsible for initiating the call (including the legal name
under which the entity is registered to operate),[FN99]
and during or after the prerecorded message, provide
a telephone number that consumers can call during
regular business hours to make a company-specific
do-not-call request.[FN100]
**13 38. The FTC's Telemarketing Sales Rule. The
FTC's Telemarketing Sales Rule, as amended in
2008, requires, with limited exception, that any prerecorded message call that could be answered by the
consumer in person provide an automated interactive
opt-out mechanism that is announced at the outset of
the message and is available throughout the duration
of the call. The opt-out mechanism, when invoked,
must automatically add the consumer's number to the
seller's do-not-call list and immediately disconnect
the call. Where a call could be answered by an answering machine or voicemail service, the message
must also include a toll-free number that enables the
consumer to call back and connect directly to an
automated opt-out mechanism.[FN101]
39. Discussion. There are several key differences
between the Commission's and the FTC's rules with
respect to their respective “opt-out” and related disclosure requirements. First, the FTC opt-out requirement specifies that, if there is any possibility that a
call could be answered in person by a consumer, an
automated interactive opt-out mechanism must be
available throughout the call.[FN102] The provision
permits either a voice or keypress-activated opt-out
mechanism to be used, or both in combination.[FN103]
If there is any possibility that a prerecorded call could
be answered by an answering machine or voicemail
service, a toll-free number must be provided and disclosed promptly at the outset of the call.[FN104] The
toll-free number must connect directly to an automated interactive opt-out mechanism that is accessible at any time throughout the duration of the telemarketing campaign.[FN105] The provision further requires that, once invoked, the interactive mechanism
must automatically add the number called to the
seller's entity-specific do-not-call list.[FN106] In contrast, the Commission's analogous provision does not
require an automated opt-out mechanism and, instead, simply requires a telephone number that consumers can call “during regular business hours” to

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

25 F.C.C.R. 1501, 25 FCC Rcd. 1501, 2010 WL 276614 (F.C.C.)

make an entity-specific do-not-call request.[FN107]
Inasmuch as automated, interactive opt-out mechanisms are now widely available and, as discussed
above, are now required of most sellers and telemarketers by virtue of the FTC's rule, we seek comment
on whether the Commission should conform its rule
to the FTC's rule by requiring their use. Comments
supporting this revision should address the Commission's authority to adopt this change, consistent with
the “technical and procedural standards” provision of
the TCPA, as codified in section 227(d)(3) of the
*1518 Communications Act.[FN108] In addition, given
that section 227(d)(3) prescribes technical standards
for “any” artificial or prerecorded voice message via
telephone, we seek comment on whether the Commission may adopt additional disclosure and opt-out
requirements mirroring the FTC's solely for artificial
or prerecorded voice message calls that are for telemarketing purposes.
**14 40. Second, whereas the FTC's Telemarketing
Sales Rule requires that prerecorded message calls
provide a disclosure at the outset of the message explaining how to opt out of future calls,[FN109] the
TCPA itself provides that, for opt-out purposes, the
telephone number of the entity initiating a call can be
disclosed “during or after the message.”[FN110] Therefore, commenters supporting a requirement that the
telephone number of the entity initiating the prerecorded message be disclosed at the outset of the message should address the Commission's legal authority
to do so.
41. Third, although each agency's rule provides for
prompt termination of the call after a consumer hangs
up, the Commission's standard is more specific (call
must be released within 5 seconds of time notification is transmitted to system) than the FTC's (call
must be released immediately). Again, in light of the
specific statutory language pertaining to call termination, commenters supporting a change to the Commission's existing rules to require immediate release
of a call once the consumer has hung up are asked to
address the Commission's authority to adopt such a
requirement.
42. Finally, as discussed in section III.A.3 above, we
note that, in addition to exempting certain healthcarerelated prerecorded message calls from its express
written consent requirement, the FTC likewise exempted such calls from its automated opt-out re-

Page 10

quirement.[FN111] Inasmuch as the TCPA technical
standards codified in section 227(d)(3) apply to “any”
artificial or prerecorded messages, we seek comment
on the Commission's authority to exempt any category of prerecorded message calls from the specific
requirements of that section. If the Commission
adopts separate disclosure and opt-out requirements
(mirroring the FTC's) specifically for prerecorded
telemarketing calls, we seek comment on whether we
may exempt the category of healthcare-related prerecorded message calls identified in the FTC's rule
from those separate requirements and, if so, whether
the Commission should provide such an exemption.
43. As a policy matter, the FTC's automated opt-out
requirement appears to be more consumer friendly
than the Commission's to the extent that it allows
consumers to easily and immediately assert their optout rights, regardless of the time of day, and without
having to wait to opt out until the next business day
during regular business hours when an operator is
available to record the opt-out request. We therefore
seek comment on whether the Commission should
revise its opt-out requirements to make them more
consistent with the FTC's, and, if so, how to do so in
a manner that is consistent with the “technical and
procedural standards” provision of the TCPA.
B. Abandoned Calls/Predictive Dialers
44. The FCC's TCPA Rules. Under the Commission's
rules, an outbound telephone call is deemed “abandoned” if a person answers the telephone and the
caller does not connect the call to a sales representative within two seconds of the person's completed
greeting.[FN112] The Commission imposes *1519 restrictions on the percentage of live telemarketing
calls that a telemarketer may drop or “abandon” as a
result of the use of predictive dialers.[FN113] Under the
Commission's rules, a seller or telemarketer would
not be liable for violating the restrictions on call
abandonment if, among other things, it employs technology that ensures abandonment of no more than
three percent of all calls answered by a person (rather
than by an answering machine).[FN114] The Commission's call abandonment rule measures the abandonment rate over a 30-day period, but contains no “per
campaign” limitation.[FN115]
**15 45. The FTC's Telemarketing Sales Rule. Like
the Commission's rule, an outbound telephone call is
deemed “abandoned” under the FTC's Telemarketing

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

25 F.C.C.R. 1501, 25 FCC Rcd. 1501, 2010 WL 276614 (F.C.C.)

Sales Rule if a person answers the telephone and the
caller does not connect the call to a sales representative within two seconds of the person's completed
greeting.[FN116] A seller or telemarketer similarly is
not liable for violating the prohibition on call abandonment if, among other things, the seller or telemarketer employs technology that ensures abandonment
of no more than three percent of all calls answered by
a person (rather than by an answering machine).[FN117]
46. In its 2008 final rule amendments, the FTC revised the standard it uses for measuring the three percent (permissible) call abandonment rate.[FN118]
Whereas the FTC previously required that a telemarketer employ technology that ensures abandonment
of no more than three percent of all calls answered by
a person, measured per day per calling campaign, it
revised the standard in 2008 to permit telemarketers
to measure the abandonment rate over a 30-day period for the duration of a single calling campaign, if
less than 30 days, or separately over each successive
30-day period or portion thereof that the campaign
continues.[FN119] According to the FTC, the effect of
this change, which had been requested by the telemarketers, was to allow telemarketers to conduct
smaller telemarketing campaigns, such as in test
markets, in a more cost effective manner.[FN120] At the
same time, the FTC considered, but rejected, a separate request to eliminate the “per campaign” limitation contained in its rule, which would have allowed
call abandonment rates to be averaged across multiple telemarketing campaigns.[FN121] The FTC *1520
reasoned that the absence of a “per campaign” limitation in its rule might encourage telemarketers “to
target less-valued customers with a disproportionate
share of abandoned calls.”[FN122]
47. Discussion. The Commission's current rule measures the three percent (permissible) call abandonment
rate over a 30-day period but, because it imposes no
“per campaign” limitation, it effectively allows the
averaging of call abandonment rates across multiple
telemarketing campaigns during any single 30-day
period. As noted above, the FTC's rulemaking proceeding highlighted concerns that this approach
might allow a telemarketer to compute a single call
abandonment rate for all campaigns that it conducts
during a 30-day period and, in so doing, to allocate a
greater percentage of abandoned calls to a less desirable marketing campaign (e.g., a campaign directed
at lower income individuals) while allocating a

Page 11

smaller percentage to a more desirable campaign
(e.g., a campaign directed at upper income individuals). We seek comment on the prevalence of such
practices among those sellers or telemarketers that
are subject to the Commission's (but not the FTC's)
telemarketing rules and on the practical impact of the
two agencies' currently differing standards. In addition, we seek comment on whether the Commission
should revise the standard by which it measures the
three percent call abandonment rate to include a “per
campaign limitation” in order to eliminate any potential incentive for telemarketers to engage in such
practices and to make the Commission's standard
more consistent with the FTC's. Finally, we note that
the FTC has clarified that the term “campaign” refers
to “the offer of the same good or service for the same
seller.”[FN123] If the Commission adopts a “per campaign limitation,” as proposed, we seek comment on
whether the Commission also should adopt the FTC's
definition of the term “campaign.”
C. Implementation Issues
**16 48. In order to reduce initial compliance costs
and burdens, the FTC deferred the effective date of
the requirement that prerecorded message calls provide an automated interactive opt-out mechanism for
three months, and the express written agreement requirement for twelve months.[FN124] If the Commission adopts an express written consent requirement
and/or an automated interactive opt-out mechanism
such as those adopted by the FTC, we seek comment
on whether we also should adopt similar implementation periods to ensure that companies have adequate
time to prepare to comply. If the Commission adopts
these or similar requirements, we seek comment on
whether to allow sellers and telemarketers, as did the
FTC, to continue placing prerecorded telemarketing
calls to consumers with whom the seller has an established business relationship for the duration of the
implementation period for the express written consent requirement. Finally, we seek comment on an
appropriate implementation period for the proposed
change to our call abandonment rules discussed in
section III.B above.
IV. PROCEDURAL MATTERS
A. Ex Parte Presentations
49. The proceeding this Notice initiates shall be
treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules.[FN125]

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

25 F.C.C.R. 1501, 25 FCC Rcd. 1501, 2010 WL 276614 (F.C.C.)

Persons making oral ex parte presentations are reminded that memoranda summarizing the presentations must contain summaries of the substance of the
presentations and not merely a listing of the subjects
discussed. More than a one or two sentence *1521
description of the views and arguments presented
generally is required.[FN126] Other requirements pertaining to oral and written presentations are set forth
in section 1.1206(b) of the Commission's rules.[FN127]
B. Filing of Comments and Reply Comments
50. Pursuant to sections 1.415 and 1.419 of the
Commission's rules, 47 C.F.R. §§ 1.415, 1.419, interested parties may file comments and reply comments
on or before the dates indicated on the first page of
this document. When filing comments or reply comments, please reference CG Docket No. 02278.Comments may be filed using: (1) the Commission's Electronic Comment Filing System (ECFS), (2)
the Federal Government's eRulemaking Portal, or (3)
by filing paper copies. See Electronic Filing of
Documents in Rulemaking Proceedings, 63 Fed. Reg.
24121 (1998).
Electronic Filers: Comments may be filed electronically using the Internet by accessing the
ECFS: http://www.fcc.gov/cgb/ecfs/ or the Federal
eRulemaking
Portal:
http://www.regulations.gov. Filers should follow
the instructions provided on the website for
submitting comments.
Paper Filers: Parties who choose to file by paper
must file an original and four copies of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each
additional docket or rulemaking number.
**17 Filings can be sent by hand or messenger
delivery, by commercial overnight courier, or by
first-class or overnight U.S. Postal Service mail.
All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal
Communications Commission.
All hand-delivered or messenger-delivered
paper filings for the Commission's Secretary
must be delivered to FCC Headquarters at
445 12th Street, SW, Room TW-A325,
Washington, DC 20554. All hand deliveries
must be held together with rubber bands or
fasteners. Any envelopes must be disposed
of before entering the building.
Commercial overnight mail (other than U.S.
Postal Service Express Mail and Priority

Page 12

Mail) must be sent to 9300 East Hampton
Drive, Capitol Heights, MD 20743.
U.S. Postal Service first-class, Express, and
Priority mail must be addressed to 445 12th
Street, SW, Washington DC 20554.
51. People with Disabilities: To request materials in
accessible formats for people with disabilities
(braille, large print, electronic files, audio format),
send an email to [e-mail] or call the Consumer and Governmental Affairs Bureau at 202-4180530 (voice) or 202-418-0432 (TTY). Contact the
FCC to request reasonable accommodations for filing
comments (accessible format documents, sign language interpreters, CART, etc.) by e-mail at: FCC504
@fcc.gov; phone: [phone] or TTY: 202-4180432.
C. Initial Regulatory Flexibility Analysis
52. As required by the Regulatory Flexibility Act of
1980, as amended (RFA), the Commission has prepared an Initial Regulatory Flexibility Analysis
(IRFA) of the possible significant economic impact
on small entities of the policies and rules addressed in
this document.[FN128] The IRFA is *1522 set forth in
Appendix B. Written public comments are requested
on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on the Notice provided on or before the dates indicated on the first page of this Notice.
D. Paperwork Reduction Act
53. This document contains proposed new information collection requirements. The Commission, as
part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of
Management and Budget (OMB) to comment on the
information collection requirements contained in this
document, as required by the Paperwork Reduction
Act of 1995.[FN129] In addition, pursuant to the Small
Business Paperwork Relief Act of 2002,[FN130] we
seek specific comment on how we might “further
reduce the information collection burden for small
business concerns with fewer than 25 employees.”[FN131]
V. ORDERING CLAUSE
54. Accordingly, IT IS ORDERED that, pursuant to
the authority contained in sections 1-2, 4, 201, 227,
and 403 of the Communications Act of 1934, as

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

25 F.C.C.R. 1501, 25 FCC Rcd. 1501, 2010 WL 276614 (F.C.C.)

amended, 47 U.S.C. §§ 151-152, 154, 201, 227, and
403, this Notice of Proposed Rulemaking IS
ADOPTED.
FEDERAL COMMUNICATIONS COMMISSION
**18 Marlene H. Dortch
Secretary
FN1. TCPA, Pub. L. No. 102-243, 105 Stat. 2394
(1991), codified at 47 U.S.C. § 227.
FN2. See Telemarketing Sales Rule, Final Rule, Federal Trade Commission, 73 Fed. Reg. 51164-01
(2008) (2008 Final Rule Amendments); see alsohttp://
www.ftc.gov/os/fedreg/2008/august/080829tsr.pdf.

Page 13

classifications, practices, services, facilities, or regulations for or in connection with intrastate communication service by wire or radio of any carrier.”47
U.S.C. § 152(b). It also includes a list of express exceptions to the general bar on the Commission's jurisdiction over intrastate communications. The TCPA
conforming amendment adds section 227 to this list
of exceptions. As revised by the conforming amendment, section 2(b) provides in relevant part: “Except
as provided in sections 223 through 227, inclusive,
and section 332, and subject to the provisions of section 301 and title VI, nothing in this Act shall be construed to apply or to give the Commission jurisdiction” with respect to intrastate communications. Id., §
152(b) (section 2(b) of the Communications Act as
amended by section 3(b) of the TCPA).
FN11. 47 U.S.C. § 227(c).

FN3. Under the Commission's rules, the term telemarketing means the initiation of a telephone call or
message for the purpose of encouraging the purchase
or rental of, or investment in, property, goods, or
services, which is transmitted to any person. 47
C.F.R. § 64.1200(f)(10).
FN4. In addition, whereas the FTC's Telemarketing
Sales Rule applies only to interstate telemarketing
calls, the TCPA authorizes the Commission to apply
its telemarketing rules to intrastate, as well as interstate, telemarketing calls. See infra Sections II.A, B.
FN5. See infra note 63.
FN6. See Warning, Alert and Response Network
(“WARN”) Act, Title VI of the Security and Accountability for Every Port Act of 2006, Pub. L. No.
109-347, 120 Stat. 1884 (2006).
FN7. See47 C.F.R. Part 10 (Commission's CMAS
rules).
FN8. 47 U.S.C. § 227.
FN9. Id.
FN10. TCPA, Pub. L. No. 102-243, § 3(b) (amending
section 2(b) of the Communications Act).Section 2(b)
generally provides that nothing in the Communications Act “shall be construed to apply or to give the
Commission jurisdiction with respect to (1) charges,

FN12. Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CC Docket
No. 92-90, Report and Order, 7 FCC Rcd 8752
(1992) (1992 TCPA Order).
FN13. 1992 TCPA Order, 7 FCC Rcd at 8761-62,
paras. 23-24.
FN14. Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CC Docket
No. 92-90, Report and Order, 18 FCC Rcd 14014
(2003) (2003 TCPA Order).See also47 C.F.R. §
64.1200(c)(2), (f)(9).
FN15. 47 U.S.C. § 227(b).
FN16. 47 U.S.C. § 227(b)(1)(B). Subsection
227(b)(1)(B) provides in relevant part:
It shall be unlawful for any person within the
United States or any person outside the United
States if the recipient is within the United States
- (B) to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the
prior express consent of the called party, unless
the call is initiated for emergency purposes or is
exempted by rule or order by the Commission
under paragraph (2)(B)[.]
Id. See also47 C.F.R. § 64.1200(a)(2).
FN17. 47 U.S.C. § 227(b)(2)(B).

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

25 F.C.C.R. 1501, 25 FCC Rcd. 1501, 2010 WL 276614 (F.C.C.)

Page 14

2003).
FN18. 47 C.F.R. § 64.1200(a)(2). The FCC has also
codified exemptions for non-commercial calls; commercial calls that do not include an unsolicited advertisement or constitute a telephone solicitation; and
calls by or on behalf of tax-exempt nonprofit organizations. Id.
FN19. 47 U.S.C. § 227(b)(1)(A).
FN20. 47 U.S.C. § 227(b)(1)(A).See also47 C.F.R. §
64.1200(a)(1). Under the TCPA, the term “automatic
telephone dialing system” means “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.”47
U.S.C. § 227(a)(1).
FN21. 2003 TCPA Order, 18 FCC Rcd at 14092,
para. 133.
FN22. 47 U.S.C. § 227(b)(2)(C). The Commission
has declined to carve out any exemptions from this
provision.
FN23. 15 U.S.C. §§ 6101-08 (Telemarketing and
Consumer Fraud and Abuse Prevention Act).
FN24. 16 C.F.R. § 310.1, et seq. (FTC implementing
regulations).
FN25. 15 U.S.C. § 45(a)(2).

FN30. 2008 Final Rule Amendments, 73 Fed. Reg.
51164.
FN31. Id., 73 Fed. Reg. at 51165. Among the more
than 13,000 comments supporting more restrictive
rules governing prerecorded telemarketing calls, the
FTC identified four general themes: (1) Sellers' and
telemarketers' self interest in retaining established
customers is not enough to prevent abuse through
excessive pre-recorded message telemarketing; (2)
Prerecorded message calls are coercive and abusive
invasions of consumer privacy; (3) Prerecorded messages impose costs and burdens on consumers; and
(4) Opt-out (as opposed to prior express consent)
approaches may not adequately protect consumers.
Id. at 51166.
FN32. Id., 73 Fed. Reg. at 51166.
FN33. Id., 73 Fed. Reg. at 51195-51200.
FN34. Id., 73 Fed. Reg. at 51172, n. 104 (citing
Telemarketing Sales Rule,Denial and Revised Proposed Rule, Federal Trade Commission, 71 Fed. Reg.
58716 (Oct. 4, 2006), at 58719-20 & 58724-25 (stating that there may be a need to conform its rule to the
Commission's “if the two sets of regulations were so
contradictory that they imposed inconsistent obligations on sellers and telemarketers, but that is not the
case here, where compliance with the more restrictive
requirements of the TSR does not violate the FCC
regulations”).

FN26. 15 U.S.C. § 1012(b).
FN27. 15 U.S.C. § 6106(4) (defining “telemarketing”
as “a plan, program, or campaign which is conducted
to induce purchases of goods or services, or a charitable contribution, donation, or gift of money or any
other thing of value, by use of one or more telephones and which involves more than one interstate
telephone call”) (emphasis added).
FN28. Telemarketing Sales Rule, Final Rule, Federal
Trade Commission, 60 Fed. Reg. 43842 (Aug. 23,
1995).
FN29. Telemarketing Sales Rule, Final Rule, Federal
Trade Commission, 68 Fed. Reg. 4580 (Jan. 29,

FN35. Do-Not-Call Implementation Act, Public Law
No. 108-10, 117 Stat. 557 (2003), codified at15
U.S.C. § 6101.
FN36. Id.Section 4 of the DNCIA required, among
other things, that within 45 days after the promulgation of final revised TCPA regulations by the Commission in 2003, the Commission and the FTC each
transmit to the House Committee on Energy and
Commerce and the Senate Committee on Commerce,
Science, and Transportation a report to include:
analyses of the telemarketing rules promulgated by
the Commission and the FTC; a discussion of inconsistencies between the rules promulgated by the
Commission and the FTC; a discussion of the effect

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

25 F.C.C.R. 1501, 25 FCC Rcd. 1501, 2010 WL 276614 (F.C.C.)

of any inconsistencies on consumers, and persons
paying for access to the national do-not-call registry;
and proposals to remedy any such inconsistencies.
The DNCIA also required the Commission and the
FTC each to transmit an annual report to Congress on
the status of the national “do-not-call” registry for
each of fiscal years 2003 through 2007. See15 U.S.C.
§ 6101.
FN37. See Report To Congress Pursuant To The Do
Not Call Implementation Act On Regulatory Coordination In Federal Telemarketing Laws Submitted By
The Federal Trade Commission, Report to Congress,
2003 WL 22120161 (Sept. 2003) (available at
http://www.ftc.gov/os/2003/09/dnciareport.pdf)
(2003 FTC Report to Congress).
FN38. FCC-FTC Memorandum of Understanding:
Telemarketing Enforcement (Dec. 2003).
FN39. 47 U.S.C. § 227(b)(1)(B).See also47 U.S.C. §
227(b)(1)(A) (prohibiting the non-emergency use of
automatic telephone dialing systems or artificial or
prerecorded messages, without the “prior express
consent” of the called party when calling: emergency
telephone lines, health care facilities, telephone numbers assigned to wireless services, and services for
which the called party is charged for the call).
FN40. See Rules and Regulations Implementing The
Telephone Consumer Protection Act of 1991, CG
Docket No. 02-278, Second Order on Recon., 20
FCC Rcd 3788, 3804, para. 40 (2005) (2005 Second
Reconsideration Order) (“Absent a consumer's listing
on the national do-not-call registry, [] prior express
consent to deliver a lawful prerecorded message may
be obtained orally.”); see also 2003 TCPA Order, 18
FCC Rcd at 14043, para. 44, n. 157 (discussing prior
express permission required for consumers who have
registered their numbers on the do-not-call list).

Page 15

FN43. 2003 TCPA Order, 18 FCC Rcd at 14043-44,
para. 44, n.158.
FN44. 2005 Second Reconsideration Order, 18 FCC
Rcd at 1404, para. 40 (“Unlike the national do-notcall registry, through which consumers have indicated that they do not wish to receive telemarketing
calls (by registering on the list), we find no evidence
in the record suggesting that consent should be in
writing when sending prerecorded messages to consumers not registered on the national do-not-call
list”) (citing 2003 TCPA Order, 18 FCC Rcd at
14043-44, para. 44, n. 157, and H.R. Rep. No. 102317 at 13 (1991) (suggesting Congress did not believe such prior express permission need be in writing)).
FN45. 2005 Second Reconsideration Order, 18 FCC
Rcd at 1404, para. 40.
FN46. 16 C.F.R. § 310.4(b)(v)(A) (safe harbor requirements).
FN47. 16 C.F.R. § 310.4(b)(v)(A)(i), (iii), (iv).
FN48. 16 C.F.R. § 310.4(b)(v)(A)(ii).
FN49. The Electronic Signatures In Global and National Commerce Act (E-SIGN Act) defines an “electronic signature” as “an electronic sound, symbol, or
process attached to or logically associated with a contract or other record and executed or adopted by a
person with the intent to sign the record.”15 U.S.C. §
7006(5). The Act further defines an “electronic record” as “a contract or other record created, generated, sent, communicated, received, or stored by electronic means.”15 U.S.C. § 7006(4).
FN50. 16 C.F.R. § 310.4(b)(v)(A).

FN41. 2003 TCPA Order, 18 FCC Rcd at 14043,
para. 44.
FN42. Id.(citing 2003 TCPA Order, 18 FCC Rcd at
14043-44, para. 44).See also47 C.F.R. §
64.1200(c)(2)(ii). We note that the Commission has
not yet addressed the question whether prior express
consent to receive an autodialed or artificial or prerecorded message call under section 227(b)(1)(A) must
be obtained in writing.

FN51. Public Law No. 108-10, 117 Stat. 557 (DoNot-Call Implementation Act).
FN52. 47 C.F.R. § 64.1200(a)(1) (prohibiting any
non-emergency telephone call, other than with the
prior express consent of the called party, using an
automatic telephone dialing system or an artificial or
prerecorded voice to an emergency telephone line, a
health care facility, or a number assigned to a cellular

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

25 F.C.C.R. 1501, 25 FCC Rcd. 1501, 2010 WL 276614 (F.C.C.)

telephone service); 47 C.F.R. § 64.1200(a)(2) (prohibiting any non-emergency telephone call to any
residential line using an artificial or prerecorded
voice to deliver a message without the prior express
consent of the called party or unless otherwise exempted).
FN53. As a practical matter, the proposed written
consent requirement, if adopted, would affect only
those sellers and telemarketers that: a) are not subject
to the FTC's Telemarketing Sales Rule; and b) wish
to place prerecorded telemarketing calls to residential
subscribers whose numbers are not listed on the donot-call registry. Entities subject to both agencies'
rules already must obtain written consent pursuant to
the FTC's recent amendments, and entities subject
only to this Commission's rules already must obtain
written consent, absent an exemption, prior to placing
a prerecorded telemarketing call to a registered subscriber.
FN54. 16 C.F.R. § 310.4(b)(v)(A).
FN55. SeeS. Rep. 102-178, 102d Cong., 1st Session
(Oct. 8, 1991), at 4, 5, 10 (clarifying that the bill, as
reported, would allow automated calls, including
prerecorded messages, to be sent so long as the called
party gives his or her prior express consent either
orally or in writing). It is noteworthy that each of the
examples provided by the Committee of “automated”
calls involved the delivery of prerecorded informational messages as opposed to prerecorded telemarketing messages. See, e.g, id. at 5 (“Many persons
order goods over the phone and may give their oral
consent to being called back by a computer telling
them that their product is ready for pickup.”).See
alsoH. Rep. 102-317, 102d Cong., 1st Session (Nov.
15, 1991), at 13 (“[t]he Committee did not attempt to
define precisely the form in which express permission or invitation must be given, but did not see a
compelling need for such consent to be in written
form”).
FN56. 47 U.S.C. § 227(b)(2)(B).
FN57. See also TCPA Congressional Finding 13
(“While the evidence presented to the Congress indicates that automated or prerecorded calls are a nuisance and an invasion of privacy, regardless of the
type of call, the Federal Communications Commission should have the flexibility to design different

Page 16

rules for those types of automated or prerecorded
calls that it finds are not considered a nuisance or
invasion of privacy ....”); TCPA Congressional Finding 15 (“The Federal Communications Commission
should consider adopting reasonable restrictions on
automated or prerecorded calls to businesses as well
as to the home ....”).
FN58. See, e.g., H. Rep. 102-317, 102d Cong., 1st
Session (Nov. 15, 1991), at 13 (expressing concern
that written consent would “unreasonably restrict the
subscriber's rights to accept solicitations of interest
and unfairly expose businesses to unwarranted risk
from accepting permissions or invitations from subscribers”). Although the House committee's concerns
were expressed in the context of exceptions to the
definition of “telephone solicitation,” and not in the
context of consent to receive prerecorded message
calls, it suggests that the committee was concerned
that a written consent requirement, at least in the context of telephone solicitations, may be unduly burdensome or inconvenient for subscribers.
FN59. 2005 Second Reconsideration Order, 18 FCC
Rcd at 1404, para. 40 (citing 2003 TCPA Order, 18
FCC Rcd at 14043-44, para. 44).See also47 C.F.R. §
64.1200(c)(2)(ii).
FN60. The FTC's rule states that it is an abusive
telemarketing act or practice to “[i]nitiat[e] any outbound telephone call that delivers a prerecorded message ..., unless: (A) in any such call to induce the
purchase of any good or service, the seller has obtained from the recipient of the call an express
agreement, in writing, that: (i) The seller obtained
only after a clear and conspicuous disclosure that the
purpose of the agreement is to authorize the seller to
place prerecorded calls to such person; (ii) The seller
obtained without requiring, directly or indirectly, that
the agreement be executed as a condition of purchasing any good or service; (iii) Evidences the willingness of the recipient of the call to receive calls that
deliver prerecorded messages by or on behalf of a
specific seller; and (iv) Includes such person's telephone number and signature[.]”See16 C.F.R. §
310.4(b)(1)(v)(A)(i)-(iv). For purposes of this rule,
the term “signature” includes an electronic or digital
form of signature, to the extent that such form of signature is recognized as a valid signature under applicable federal law or state contract law. Id. at n.7.

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

25 F.C.C.R. 1501, 25 FCC Rcd. 1501, 2010 WL 276614 (F.C.C.)

FN61. 47 U.S.C. § 227(b)(1)(A), (1)(B).

Page 17

FN62. 2005 Second Reconsideration Order, 18 FCC
Rcd at 1404, para. 40.
FN63. 47 U.S.C. § 227(b)(1)(B), (2)(B). The Commission has determined that the following types of
calls should be exempt from the ban on prerecorded
messages: 1) calls that are non-commercial (e.g., political or religious speech calls); 2) calls that are
commercial but do not contain an advertisement (e.g.,
informational calls notifying a customer of a scheduled delivery or notifying airline passengers of flight
delays); 3) calls with whom the telemarketer has an
established business relationship; and 4) calls by taxexempt nonprofit organizations (e.g., charities).47
C.F.R. § 64.1200(a)(2)(i)-(v).See also 2003 TCPA
Order, 18 FCC Rcd at 14095-99, paras. 136-142
(discussing Commission decisions to exempt particular categories of calls from prerecorded message
ban).

bearance policy during the pendency of its rulemaking, subject to certain conditions, with respect to sellers and telemarketers that deliver prerecorded messages to consumers with whom the seller on whose
behalf the telemarketing call is made has an established business relationship. Id.
FN69. Id., 69 Fed. Reg. 67290. Under the FTC's
Telemarketing Sales Rule, the term established business relationship is defined as a relationship between
a seller and a consumer based on: (1) the consumer's
purchase, rental, or lease of the seller's goods or services or a financial transaction between the consumer
and seller, within the eighteen (18) months immediately preceding the date of a telemarketing call; or (2)
the consumer's inquiry or application regarding a
product or service offered by the seller, within the
three (3) months immediately preceding the date of a
telemarketing call. 16 C.F.R. § 310.2(n).

FN64. 1992 TCPA Order, 7 FCC Rcd at 8770-71,
para. 34. Under the Commission's rules, the term
established business relationship is defined as a prior
or existing relationship formed by a voluntary twoway communication between a person or entity and a
residential subscriber with or without an exchange of
consideration, on the basis of the subscriber's purchase or transaction with the entity within the eighteen (18) months immediately preceding the date of
the telephone call or on the basis of the subscriber's
inquiry or application regarding products or services
offered by the entity within the three months immediately preceding the date of the call, which relationship has not been previously terminated by either
party. 47 C.F.R. § 64.1200(f)(4).
FN65. 1992 TCPA Order, 7 FCC Rcd at 8770, para.
34.
FN66. Id.
FN67. Id.(citing H.Rep., 102-317, 102d Cong., 1st
Session (Nov. 15, 1991), at 13).

FN70. Telemarketing Sales Rule,Denial and Revised
Proposed Rule, Federal Trade Commission, 71 Fed.
Reg. 58716 (Oct. 4, 2006).
FN71. Id., 71 Fed. Reg. at 58722. According to the
FTC, the consumer comments provided “compelling
evidence that consumer aversion to prerecorded message telemarketing -- regardless of whether an established business relationship exists -- has not diminished since enactment of the TCPA, which, in no
small measure, was prompted by consumer outrage
about the use of prerecorded messages.”Id., 71 Fed.
Reg. at 58723.
FN72. Id., 71 Fed. Reg. at 58722 (“Notwithstanding
the FCC's rationale for allowing sellers to use prerecorded messages in calls to established customers,
many consumers contended that neither a prior inquiry nor purchase implied their consent to receipt of
future prerecorded solicitations from a seller, contrary to prior consumer support for live telemarketing
calls.”).
FN73. Id., 71 Fed. Reg. at 58723-24.
FN74. Id., 71 Fed. Reg. at 58721, 58723.

FN68. Telemarketing Sales Rule, Notice of Proposed
Rulemaking, Federal Trade Commission, 69 Fed.
Reg. 67287 (Nov. 17, 2004). At the same time, the
FTC announced the adoption of an enforcement for-

FN75. Id.
FN76. Id., 71 Fed. Reg. at 58722.

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

25 F.C.C.R. 1501, 25 FCC Rcd. 1501, 2010 WL 276614 (F.C.C.)

Page 18

FN77. 16 C.F.R. §310.4(b) (v)(B),(C),(D). The
Telemarketing Sales Rule also exempts from the prohibition on prerecorded message calls certain healthcare-related calls (discussed in section III.A.3, infra),
calls made by a for-profit telemarketer on behalf of a
non-profit entity to an individual who is a member of,
or previous donor to, the non-profit entity (no written
consent required but opt-out requirements discussed
below still apply), and calls made by a tax-exempt
nonprofit.

FN88. Id.

FN78. The FTC states that 13,600 comments were
filed in response to its 2004 notice of proposed rulemaking and an additional 600 comments were filed in
response to its 2006 Federal Register notice. FTC
2008 Amendments, 73 Fed. Reg. at 51165.
FN79. 1992 TCPA Order, 7 FCC Rcd at 8770-71,
para. 34.

FN93. 47 U.S.C. § 227(b)(2)(B)(ii). The term “unsolicited advertisement” means “any material advertising the commercial availability or quality of any
property, goods, or services which is transmitted to
any person without that person's prior express invitation or permission, in writing or otherwise.”See47
U.S.C. § 227(a)(5); see also47 C.F.R. §
64.1200(f)(13).

FN80. Id.(emphasis added)

FN94. See, e.g., 2003 FTC Report to Congress, at 2.

FN81. To be clear, we propose no changes to, and
therefore do not seek comment on, the Commission's
current rules governing: a) live telephone solicitations
to established business customers; or b) prerecorded
message calls that do not include a solicitation (e.g.,
calls notifying customers of product recalls, or of
scheduled deliveries).

FN95. If the Commission elected not to adopt a similar exemption, this would not preclude us from adopting an enforcement forbearance policy in deference
to the FTC's determination with respect to this issue.
See, e.g., Telemarketing Sales Rule, Notice of Proposed Rulemaking, Federal Trade Commission, 69
Fed. Reg. 67287 (Nov. 17, 2004) (announcing enforcement forbearance policy, subject to certain conditions, with respect to sellers and telemarketers that
deliver prerecorded messages to consumers with
whom the seller on whose behalf the telemarketing
call is made has an established business relationship).

FN82. 47 U.S.C. § 227(b)(1)(B), (2)(B).
FN83. Id.(citing H.Rep., 102-317, 102d Cong., 1st
Session (Nov. 15, 1991), at 13). We note that these
statements were made in the context of exceptions to
the context of live telephone solicitations to established business customers, and not in the context of
prerecorded message calls to such customers.

FN89. Id., 73 Fed. Reg. at 51191.
FN90. Id., 73 Fed. Reg. at 51189-90.
FN91. Id., 73 Fed. Reg. at 51192.
FN92. 47 U.S.C. § 227(b)(2)(B)(i).

FN96. 47 U.S.C. § 227(d)(3).
FN97. 47 U.S.C. § 227(d)(3)(A).

FN84. 47 U.S.C. § 227(b)(1)(B), (2)(B).

FN98. 47 U.S.C. § 227(d)(3)(B).

FN85. Pub. L. No. 104-191, 110 Stat. 1936 (1996)
(codified, as amended, at 42 U.S.C. §§1320 et seq.).

FN99. 47 C.F.R. § 64.1200(b)(1).

FN86. 2008 Final Rule Amendments, 73 Fed. Reg. at
51188-92.
FN87. Id., 73 Fed. Reg. at 51189.

FN100. 47 C.F.R. § 64.1200(b)(2) (“All artificial or
prerecorded telephone messages shall: ....[d]uring or
after the message, state clearly the telephone number
(other than that of the autodialer or prerecorded message player that placed the call) of such business,
other entity, or individual. The telephone number

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

25 F.C.C.R. 1501, 25 FCC Rcd. 1501, 2010 WL 276614 (F.C.C.)

provided may not be a 900 number or any other
number for which charges exceed local or long distance transmission charges. For telemarketing messages to residential telephone subscribers, such telephone number must permit any individual to make a
do-not-call request during regular business hours for
the duration of the telemarketing campaign.”).

Page 19

hear “dead air” or a dialtone.

FN102. 16 C.F.R. § 310.4(b)(1)(v)(B)(ii)(A).

FN114. Id.(prohibiting abandonment of “more than
three percent of all telemarketing calls that are answered live by a person, or measured over a 30-day
period”). The three percent (permissible) call abandonment rate allows this small percentage of abandoned calls so that the telemarketing industry may
benefit from the cost savings made possible by the
use of predictive dialers, as opposed to the manual
dialing of telephone numbers.

FN103. Id.

FN115. Id.

FN104. 16 C.F.R. § 310.4(b)(1)(v)(B)(ii)(B).

FN116. 16 C.F.R. § 310.4(b)(1)(iv).

FN105. Id.

FN117. 16 C.F.R. § 310.4(b)(4)(i).

FN106. Id.

FN118. 2008 Final Rule Amendments, 73 Fed. Reg.
at 51195-51200.

FN101. 16 C.F.R. § 310.4(b)(1)(v)(B)(i)-(iii).

FN107. 47 C.F.R. § 64.1200(b)(2).
FN119. 16 C.F.R. § 310.4(b)(4)(i).
FN108. 47 U.S.C. § 227(d)(3).
FN109. 16 C.F.R. § 310.4(b)(1)(v)(B)(ii) (making it
an abusive telemarketing act or practice and a rule
violation not to “promptly” disclose seller's identification, purpose of call, and nature of goods or service, followed “immediately” by a disclosure of optout information).
FN110. 47 U.S.C. § 227(d)(3).
FN111. 16 C.F.R. § 310.4(b)(1)(v)(D).
FN112. 47 C.F.R. § 64.1200(a)(6).
FN113. Id.The abandoned call provision was intended to address the problem of dropped calls resulting from the use of predictive dialers. A predictive
dialer is an automated dialing system that automatically dials consumers' telephone numbers in a manner
that “predicts” the time when a consumer will answer
the phone and a telemarketer will be available to take
the call. Such software programs are set up in order
to minimize the amount of downtime for a telemarketer. In some instances, however, no telemarketer is
free to take a call that has been placed by a predictive
dialer and the consumer answers the phone only to

FN120. 2008 Final Rule Amendments, 73 Fed. Reg.
at 51197-99. This amendment also made the FTC's
method of measuring the call abandonment rate more
similar to the method adopted by the Commission,
which also measures the call abandonment rate over a
30-day period (albeit over multiple campaigns).
FN121. Id., 73 Fed. Reg. at 51199-200. The FTC also
clarified that the term “campaign” refers to “the offer
of the same good or service for the same seller.”Id. at
51200.
FN122. Id., 73 Fed. Reg. at 51200.
FN123. Id.
FN124. Id., 73 Fed. Reg. at 51166.
FN125. 47 C.F.R. §§ 1.200 et seq.
FN126. See47 C.F.R. § 1.1206(b)(2).
FN127. 47 C.F.R. § 1.1206(b).
FN128. See5 U.S.C. §§ 601 et seq.

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

25 F.C.C.R. 1501, 25 FCC Rcd. 1501, 2010 WL 276614 (F.C.C.)

Page 20

FN129. Pub. L. No. 104-13.
FN130. Pub. L. No. 107-198.
FN131. 44 U.S.C. § 3506(c)(4).

(A) The person or entity obtained only after a clear
and conspicuous disclosure that the purpose of the
agreement is to authorize the delivery of calls to the
recipient using an automatic telephone dialing system
or an artificial or prerecorded voice;

*1523 APPENDIX A
Draft Proposed Rules for Public Comment
The Federal Communications Commission proposes to amend Part 64 of Title 47 of the Code of
Federal Regulations as follows:
PART 64 - MISCELLANEOUS RULES RELATING TO COMMON CARRIERS
*****
Subpart L - Restrictions on Telemarketing and
Telephone Solicitation
*****
1. Amend § 64.1200 by revising paragraphs (a)(1),
(a)(2)(iv)-(v), (a)(6), (a)(6)(i), (b)(1), and (b)(2),
and by adding paragraphs (a)(1)(v), (a)(2)(v),
(a)(2)(vi), and (b)(2) to read as follows:
§ 64.1200 Delivery restrictions.
(a) No person or entity may: (1) Initiate any telephone call (other than a call made for emergency
purposes or made with the prior express written consent of the called party) using an automatic telephone
dialing system or an artificial or prerecorded voice;
(i) * * *

(B) The person or entity obtained without requiring,
directly or indirectly, that the agreement be executed
as a condition of purchasing any good or service;
(C) Evidences the willingness of the recipient of the
call to receive calls using an automatic telephone
dialing system or an artificial or prerecorded voice;
and
(D) Includes the telephone number to which such
calls may be placed in addition to the recipient's signature[FN1] and
FN1. For purposes of this provision, the term “signature” shall include an electronic or digital form of
signature, to the extent that such form of signature is
recognized as a valid signature under applicable federal law or state contract law.
*1524 (2) Initiate any telephone call to any residential line using an artificial or prerecorded voice to
deliver a message without the prior express written
consent of the called party, unless the call;
(i) * * *
(ii) * * *
(iii) * * *
(iv) Is made by or on behalf of a tax-exempt nonprofit organization; or

(ii) * * *

(v) Delivers a prerecorded healthcare message made
by, or on behalf of, a covered entity or its business
associate, as those terms are defined in the HIPAA
Privacy Rule, 45 CFR 160.103;

(iii) * * *
(iv) * * *
(v) For purposes of paragraph (a)(1) of this section, a
person or entity shall be deemed to have obtained
prior express written consent upon obtaining from the
recipient of the call an express agreement, in writing,
that:

(vi) For purposes of paragraph (a)(2) of this section, a
person or entity shall be deemed to have obtained
prior express written consent upon obtaining from the
recipient of the call an express agreement, in writing,

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

25 F.C.C.R. 1501, 25 FCC Rcd. 1501, 2010 WL 276614 (F.C.C.)

that:
(A) The person or entity obtained only after a clear
and conspicuous disclosure that the purpose of the
agreement is to authorize the delivery of calls to the
recipient using an artificial or prerecorded voice;
(B) The person or entity obtained without requiring,
directly or indirectly, that the agreement be executed
as a condition of purchasing any good or service;
(C) Evidences the willingness of the recipient of the
call to receive calls using an artificial or prerecorded
voice; and
(D) Includes the telephone number to which such
calls may be placed in addition to the recipient's signature;[FN2] and
FN2. For purposes of this provision, the term “signature” shall include an electronic or digital form of
signature, to the extent that such form of signature is
recognized as a valid signature under applicable federal law or state contract law.
*****
(6) Abandon more than three percent of all telemarketing calls that are answered live by a person, or
measured over a 30-day period, per marketing campaign. A call is “abandoned” if it is not connected to
a live sales representative within two (2) seconds of
the called person's completed greeting. Whenever a
sales representative is not available to speak with the
person answering the call, that person must receive,
within two (2) seconds after the called person's completed greeting, a prerecorded identification message
that states only the name and telephone number of the
business, entity, or individual on whose behalf the
call was placed, and that the call was for “telemarketing purposes.” The telephone number so provided
must permit any individual to make a do-not-call
request during regular business hours for the duration
of the telemarketing campaign. The telephone number may not be a 900 number or any other number for
which charges exceed local or long distance transmission charges. The seller or telemarketer must
maintain records establishing compliance with paragraph (a)(6) of this section.

Page 21

*1525 (i) A call for telemarketing purposes that delivers an artificial or prerecorded voice message to a
residential telephone line that is assigned to a person
who has granted prior express written consent for the
call to be made shall not be considered an abandoned
call if the message begins within two (2) seconds of
the called person's completed greeting.
*****
(b) All artificial or prerecorded telephone messages
shall conform to the requirements of subparagraph
(1) or (2) of this paragraph (b).
(1) All artificial or prerecorded telephone messages,
other than those delivered to residential telephone
subscribers for telemarketing purposes, shall (i) At
the beginning of the message, state clearly the identity of the business, individual, or other entity that is
responsible for initiating the call. If a business is responsible for initiating the call, the name under which
the entity is registered to conduct business with the
State Corporation Commission (or comparable regulatory authority) must be stated, and (ii) During or
after the message, state clearly the telephone number
(other than that of the autodialer or prerecorded message player that placed the call) of such business,
other entity, or individual. The telephone number
provided may not be a 900 number or any other
number for which charges exceed local or long distance transmission charges.
(2) All artificial or prerecorded telephone messages
delivered to residential telephone subscribers for
telemarketing purposes shall (i) At the beginning of
the message, state clearly the identity of the business,
individual, or other entity that is responsible for initiating the call; that the purpose of the call is to sell
goods or services; and the nature of the goods or services, and (ii) followed immediately by a disclosure
of one or both of the following:
(A) In the case of a call that could be answered in
person by a consumer, that the person called can use
an automated interactive voice and/or keypressactivated opt-out mechanism to assert a do-not-call
request at any time during the message. The mechanism must automatically add the number called to the
caller's company-specific do-not-call list; once invoked, immediately disconnect the call; and be available for use at any time during the message; and

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

25 F.C.C.R. 1501, 25 FCC Rcd. 1501, 2010 WL 276614 (F.C.C.)

(B) In the case of a call that could be answered in
person by an answering machine or voicemail service, that the person called can use a toll-free telephone number to assert a do-not-call request. The
number provided must connect directly to an automated interactive voice or keypress-activated opt-out
mechanism that automatically adds the number called
to the caller's company-specific do-not-call list; immediately thereafter disconnects the call; and is accessible at any time throughout the duration of the
telemarketing campaign.
(3) Paragraph (b)(2) shall not apply to a prerecorded
healthcare message made by, or on behalf of, a covered entity or its business associate, as those terms
are defined in the HIPAA Privacy Rule, 45 CFR
160.103.
*****
*1526 The Federal Communications Commission
proposes to amend Part 68 of Title 47 of the Code
of Federal Regulations as follows:
PART 68 -- CONNECTION OF TERMINAL
EQUIPMENT TO THE TELEPHONE NETWORK
*****
Subpart D -- Conditions for Terminal Equipment
Approval
*****
1. Amend § 68.318 by revising paragraph (c) to
read as follows:
§ 68.318 Additional limitations.
*****
(c) Line seizure by automatic telephone dialing systems. Automatic telephone dialing systems which
deliver a recorded message to the called party must
release the called party's telephone line within 5 seconds of the time notification is transmitted to the system that the called party has hung up, to allow the
called party's line to be used to make or receive other
calls. When a residential telephone subscriber asserts
a do-not-call request pursuant to paragraph

Page 22

64.1200(b)(2) of Part 64 of this Title, an automatic
dialing system that delivers an artificial or prerecorded message to such subscriber for telemarketing
purposes must release the called party's telephone
line in the manner prescribed in paragraph
64.1200(b)(2).
*1527 APPENDIX B
Initial Regulatory Flexibility Analysis
1. As required by the Regulatory Flexibility Act of
1980, as amended, (RFA),[FN132] the Commission has
prepared this Initial Regulatory Flexibility Analysis
(IRFA) of the possible significant economic impact
on a substantial number of small entities by the policies and rules proposed in this Notice of Proposed
Rule Making (NPRM). Written public comments are
requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by
the deadlines for comments on the NPRM provided
on the first page of this document. The Commission
will send a copy of the NPRM, including this IRFA,
to the Chief Counsel for Advocacy of the Small
Business Administration.[FN133] In addition, the
NPRM and IRFA (or summaries thereof) will be published in the Federal Register.[FN134]
1. Need for, and Objectives of, the Proposed Rules
2. In this NPRM, we seek comment on proposed revisions to our rules under the TCPA pertaining to
prerecorded telemarketing calls and certain other
telemarketing practices.[FN135] The NPRM proposes to
amend the Commission's TCPA rules in four areas.
The first proposed amendment would conform the
Commission's rules to the FTC's Telemarketing Sales
Rule by prohibiting the use of prerecorded messages
in telemarketing sales calls unless the seller or telemarketer has obtained the consumer's prior express
consent, in writing, to receive such messages and
irrespective of any established business relationship
between the caller and the called party.[FN136] The
Commission also proposes to allow sellers or telemarketers to obtain such consent using any medium
or format permitted by the E-SIGN Act.[FN137] The
Commission's objective in proposing to harmonize its
prior consent requirement with the FTC's by adopting
a written consent requirement is to reduce the potential for industry and consumer confusion surrounding
telemarketers' obligations to the extent that similarly
situated entities would no longer be subject to differ-

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

25 F.C.C.R. 1501, 25 FCC Rcd. 1501, 2010 WL 276614 (F.C.C.)

ent requirements depending upon whether an entity is
subject to the FTC's rule or to the Commission's rule.
The Commission also believes that written consent
may enhance its enforcement efforts and serve to
protect both consumers and industry from erroneous
claims that consent was or was not given, to the extent that, unlike oral consent, the existence of a paper
or electronic record may provide unambiguous proof
of consent.
3. The second proposed amendment would conform
the Commission's rules to the FTC's Telemarketing
Sales Rule by exempting certain healthcare-related
calls from the general prohibition on prerecorded
telemarketing calls to residential telephone
lines.[FN138] The Commission proposes to exempt such
calls based on the FTC's findings that: (1) the individuals most in need of these healthcare-related prerecorded messages (elderly or ill patients) might be
unable or unlikely to take the steps necessary to provide their express written consent to receive them; (2)
communications between healthcare-related *1528
entities subject to HIPAA regulations and their customers already are subject to extensive regulations at
the federal level, including regulations directly addressing the making of telephone solicitations to patients, such that it would be unlikely that the creation
of an exemption for these calls would lead to abusive
practices; and (3) prerecorded healthcare messages of
the type described in the NPRM are generally
deemed more welcome and less intrusive by consumers and, as such, the creation of an exemption for this
category of calls would not adversely affect consumer privacy rights. Thus, the Commission's objective in proposing the creation of this exemption is to
avoid imposing duplicative regulations in an area that
is already extensively regulated at the federal level
and that, as a result, does not appear to give rise to
the same privacy and other concerns as other types of
calls.
4. The third proposed amendment would conform the
Commission's rules to the FTC's Telemarketing Sales
Rule by requiring that prerecorded telemarketing
calls delivered to residential subscribers include an
automated, interactive mechanism by which a consumer may “opt out” of receiving future prerecorded
messages from the seller or telemarketer.[FN139] The
Commission's objective in proposing this requirement
is to make the opt-out process more consumer
friendly by allowing consumers to easily and imme-

Page 23

diately assert their opt-out rights, regardless of the
time of day, and without having to wait to opt out
until the next business day during regular business
hours when an operator is available to record the optout request. The Commission also believes that the
use of an automated mechanism, as described above,
may enhance the efficiency of companies' outbound
telemarketing campaigns.
5. To the extent that the FTC's Telemarketing Sales
Rule, as recently amended, imposes different requirements on sellers and telemarketers in these three
areas than analogous rules adopted by the Commission, the Commission seeks comment on whether it
should attempt to harmonize its TCPA requirements
with those of the FTC. In proposing to conform its
prerecorded message rules to the Telemarketing Sales
Rule in the identified areas, the Commission also
identified two overarching objectives: (1) to further
empower residential telephone subscribers to avoid
unwanted telemarketing messages; and (2) to advance Congress's directive to maximize consistency
between the Commission's TCPA rules and the FTC's
Telemarketing Sales Rule.[FN140] The Commission
therefore seeks comment on whether these proposed
revisions would benefit consumers and industry by
creating greater symmetry between the two agencies'
regulations and on the extent to which they would
enhance the ability of residential telephone subscribers to avoid unwanted telemarketing messages.
6. The final proposed amendment would conform the
Commission's rules to the FTC's Telemarketing Sales
Rule by adopting a “per campaign” standard for
measuring the “call abandonment rate.”[FN141] As
noted above, the “call abandonment rate” refers to the
percentage of live telemarketing calls that a telemarketer drops or “abandons” as a result of the use of
predictive dialers. The Commission proposes to adopt
a “per campaign” limitation based on the concern
raised in the FTC's rulemaking proceeding that telemarketers would be more likely to target less-valued
customers with a disproportionate share of abandoned calls in the absence of such a limitation. Because the absence of a “per campaign” limitation may
leave consumers to rely on the industry's good faith
that it will not engage in such practices, despite obvious economic incentives to do otherwise, the Commission seeks comment on whether it should revise
its current standard for measuring the three percent
call abandonment rate by adopting this proposed

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

25 F.C.C.R. 1501, 25 FCC Rcd. 1501, 2010 WL 276614 (F.C.C.)

limitation.
*1529 2. Legal Basis
7. The legal basis for any action that may be taken
pursuant to this NPRM is contained in sections 1-4,
227, and 303(r) of the Communications Act of 1934,
as amended; the Telephone Consumer Protection Act
of 1991, Pub. L. No. 102-243, 105 Stat. 2394; and the
Do-Not-Call Implementation Act, Pub. L. No. 10810, 117 Stat. 557.
3. Description and Estimate of the Number of
Small Entities to Which the Proposed Rules Will
Apply
8. The RFA directs agencies to provide a description
of, and where feasible, an estimate of the number of
small entities that will be affected by the proposed
rules, if adopted.[FN142] The RFA generally defines the
term “small entity” as having the same meaning as
the terms “small business,” “small organization,” and
“small governmental jurisdiction.”[FN143] In addition,
the term “small business” has the same meaning as
the term “small business concern” under the Small
Business Act.[FN144] Under the Small Business Act, a
“small business concern” is one that: 1) is independently owned and operated; 2) is not dominant in its
field of operation; and 3) meets any additional criteria established by the Small Business Administration
(SBA).[FN145]
9. In general, the Commission's rules on telephone
solicitation and on the use of autodialers, or artificial
or prerecorded messages apply to a wide range of
entities. The proposed rules, in particular, would apply (with certain exceptions) to all persons using prerecorded or artificial voice messages for telemarketing purposes.[FN146] Therefore, we expect that the proposals in this proceeding potentially could have a
significant economic impact on a substantial number
of small entities. Determining the precise number of
small entities that would be subject to the requirements proposed in this NPRM, however, is not readily feasible.[FN147] Therefore, we invite comment on
such number and, after evaluating the comments, will
examine further the effect of any rule changes on
small entities in the Final Regulatory Flexibility
Analysis. Below, we have described some current
data that are helpful in describing the number of
small entities that might be affected by our proposed
action, if adopted.

Page 24

10. Nationwide, there are a total of approximately
29.6 million small businesses, according to the
SBA.[FN148] A “small organization” is generally “any
not-for-profit enterprise which is independently
*1530 owned and operated and is not dominant in its
field.”[FN149] Nationwide, as of 2002, there were approximately 1.6 million small organizations.[FN150]
11. Telemarketing Bureaus and Other Contact Centers. According to the Census Bureau, this economic
census category “comprises establishments primarily
engaged in operating call centers that initiate or receive communications for others-via telephone, facsimile, email, or other communication modes-for
purposes such as (1) promoting clients' products or
services, (2) taking orders for clients, (3) soliciting
contributions for a client; and (4) providing information or assistance regarding a client's products or services.”[FN151] The SBA has developed a small business size standard for this category, which is: all such
entities having $7 million or less in annual receipts.[FN152] According to Census Bureau data for
2002, there were 1,876 firms in this category that
operated for the entire year.[FN153] Of this total, 1,610
firms had annual sales of under $5 million, and an
additional 129 had sales of $5 million to $9,999,999.
Thus, the majority of firms in this category can be
considered small.
4. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements
12. The express written consent requirement proposed in the NPRM may entail additional recordkeeping requirements for covered entities to the extent that they would be required to obtain and keep
records of consumers' written consent to receive prerecorded message calls.[FN154] As a practical matter,
however, it appears that there would not be a significant change in this recordkeeping burden for at least
two reasons. First, because a seller or telemarketer
placing a prerecorded telemarketing call must be prepared to provide, under the Commission's current
requirements, “clear and convincing evidence” that it
received prior express consent from the called party,
whether consent has been obtained orally or in writing, covered entities already are required to maintain
records to demonstrate compliance with the existing
express consent requirement.[FN155] In addition, covered entities already maintain electronic or other records of the existence of an established business relationship in order to demonstrate compliance with

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

25 F.C.C.R. 1501, 25 FCC Rcd. 1501, 2010 WL 276614 (F.C.C.)

current Commission requirements governing prerecorded message calls to established business relationship customers. In place of keeping records of “oral
consent” or of “established business relationships” as
a precondition for placing prerecorded telemarketing
calls, the proposed rule change would require covered entities to maintain records of consumers' express written agreement to receive *1531 such calls.
And because the Commission has proposed that these
agreements may be obtained pursuant to the E-SIGN
Act, minimal additional recordkeeping should be
necessary. For these reasons, the proposed written
consent requirement, as a practical matter, is unlikely
to result in significant new reporting, recordkeeping
or other compliance requirements for sellers and
telemarketers, including small entities.
5. Steps Taken to Minimize Significant Economic
Impact on Small Entities, and Significant Alternatives Considered
13. 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.[FN156]
14. By proposing to conform the Commission's
TCPA rules to those of the FTC in the areas described in paragraphs two through six above, the actions proposed are consistent with the mandate of the
DNCIA to “maximize consistency” of the Commission's TCPA rules with the FTC's Telemarketing
Sales Rule.[FN157] One alternative to the proposed
amendments would be to adopt no changes to the
Commission's rules on prerecorded messages and call
abandonment. Although the Commission considered
the option of doing nothing for each of the proposed
rules, this option was outweighed by the anticipated
benefits of the proposed changes, including: (1) reducing the potential for industry and consumer confusion surrounding a telemarketer's obligations to the
extent that similarly situated entities would no longer
be subject to different federal requirements; (2) en-

Page 25

hancing the Commission's enforcement efforts and
protecting both consumers and industry from erroneous claims that consent was or was not given, to the
extent that the written consent requirement may provide more verifiable proof of consent; (3) empowering consumers to determine which prerecorded commercial solicitations they will receive via their telephones and providing a convenient and consumerfriendly method to “opt-out” of receiving those to
which they object; and (4) ensuring that telemarketers
do not calculate the three percent (permissible) call
abandonment rate in a way that certain communities
or populations are subject to a disproportionately
greater number of dropped or abandoned calls.
15. In order to reduce initial compliance costs and
burdens, the Commission proposes to defer the effective date of the proposed requirement that prerecorded calls provide an automated interactive opt-out
mechanism for three months, and the proposed written agreement requirement for twelve months, to ensure that the industry will have adequate time to prepare to comply. The NPRM proposes to allow sellers
and telemarketers to continue placing prerecorded
calls to consumers with whom the seller has an established business relationship during the pendency of
the implementation period for the written agreement
requirement. In addition, by proposing that written
consent agreements be obtained pursuant to any
method allowed under the E-SIGN Act, the Commission's proposed written consent requirement would
afford small entities flexibility in determining the
method of “written” consent that is best suited to
those entities' marketing plans and business operations. Although the Commission has determined that
there may be an economic impact on small entities as
a result of the proposed rules, such impact, which has
been minimized to the extent possible, would appear
to be minor and not unjustifiably adverse or burdensome.
*1532 16. The Commission has determined that, on
balance, any such burden is outweighed by the potentially significant benefits of the proposed rules to
industry and consumers, as identified in the preceding paragraph. Because these anticipated significant
benefits outweigh, based on our analysis, any minor
burden our proposed rules may impose on small entities, we have determined that no further discussion of
alternatives to the proposed rules is warranted beyond
what we have set forth in paragraphs 14 and 15, su-

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

25 F.C.C.R. 1501, 25 FCC Rcd. 1501, 2010 WL 276614 (F.C.C.)

Page 26

pra.
FN142. 5 U.S.C. § 603(b)(3).
6. Federal Rules that May Duplicate, Overlap, or
Conflict with the Proposed Rules

FN143. 5 U.S.C. § 601(6).

17. As discussed above, the Telemarketing Consumer
Fraud and Abuse Prevention Act (“Telemarketing
Act”), 15 U.S.C. §§ 6101-6108, and the Telemarketing Sales Rule (TSR)[FN158] adopted by the FTC also
address certain telemarketing acts or practices. The
NPRM identifies several aspects of the FTC's Telemarketing Sales Rule, as recently amended, that differ from the Commission's TCPA rules. Therefore,
we seek comment in this NPRM on whether we
should revise our rules to harmonize them with the
FTC's rule.[FN159] Amending the Commission's rules,
as proposed above, would reduce the inconsistencies
that currently exist between the two sets of rules.

FN144. 5 U.S.C. § 601(3) (incorporating by reference
the definition of “small business concern” in the
Small Business Act, 5 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.”

FN132. 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).

FN146. 47 C.F.R. § 64.1200.

FN133. See5 U.S.C. § 603(a).
FN134. See id.
FN135. 47 U.S.C. § 227.

FN145. 15 U.S.C. § 632.

FN147. See generally, Telemarketing Sales Rule,
Final Rule, Federal Trade Commission, 73 Fed. Reg.
51164, 51202 (2008) (2008 Final Rule Amendments)
(Regulatory Flexibility Analysis) (noting FTC's belief
that, based on the absence of available data, a precise
estimate of the number of small entities that would be
subject to the prerecorded call amendment or that
would fall under the amended method for measuring
the maximum permissible call abandonment rate is
“not currently feasible”).

FN136. See supra Sections III.A.1, 2.

FN138. See supra Section III.A.3.

FN148. See SBA, Office of Advocacy, “Frequently
Asked
Questions,”
http://
web.sba.gov/faqs/faqindex.cfm?areaID=24 (revised
Sept. 2009).

FN139. See supra Section III.A.4.

FN149. 5 U.S.C. § 601(4).

FN140. See Telemarketing Sales Rule, Final Rule,
Federal Trade Commission, 73 Fed. Reg. 51164-01
(2008) (2008 Final Rule Amendments); see alsohttp://
www.ftc.gov/os/fedreg/2008/august/080829tsr.pdf.

FN150. Independent Sector, The New Nonprofit Almanac & Desk Reference (2002).

FN137. See supra Section III.A.1.

FN141. As noted above, the “call abandonment rate”
refers to the percentage of live telemarketing calls
that a telemarketer drops or “abandons” as a result of
the use of predictive dialers.141See supra Section
III.B.

FN151. U.S. Census Bureau, 2007 NAICS Definitions, “561422 Telemarketing Bureaus and Other
Contact
Centers”;
http://www.census.gov/cgibin/sssd/naics/naicsrch?code=561422&search=2007.
FN152. 13 C.F.R. § 121.201, NAICS code 561422.

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

25 F.C.C.R. 1501, 25 FCC Rcd. 1501, 2010 WL 276614 (F.C.C.)

FN153. U.S. Census Bureau, 2002 Economic Census,
Subject Series: Administrative and Support and
Waste Management and Remediation Services, Table
4, “Receipts Size of Firms for the United States:
2002,” NAICS code 561422 (issued Nov. 2005);
http://www.census.gov/econ/census02/guide/subsum
m.htm. The 2002 census data are the most recent
available; however, preliminary 2007 data show that
this category has grown approximately 5.2 percent
since 2002. See U.S. Census Bureau, American FactFinder, 2007 Economic Census, “Sector 56:
EC075612: Administrative and Support and Waste
Management and Remediation Services: Industry
Series: Preliminary Comparative Statistics for the
United States (2002 NAICS basis): 2007 and 2002”
(released Dec. 1, 2009) (data on total “enterprises”);
http://factfinder.census.gov/servlet/IBQTable?_bm=y
&-geo_ id=&-ds_name=EC0756I2&-_lang=en.
FN154. See supra Sections III.A.1, 2.
FN155. 2005 Second Reconsideration Order, 18 FCC
Rcd at 1404, para. 40.
FN156. 5 U.S.C. § 603(c).
FN157. Public Law No. 108-10, 117 Stat. 557 (DoNot-Call Implementation Act).
FN158. 16 C.F.R. Part 310.
FN159. See supra para. 1.
*1533 STATEMENT OF CHAIRMAN JULIUS
GENACHOWSKI
**19 Re: Rules and Regulations Implementing
the Telephone Consumer Protection Act of 1991,
CG Docket No. 02-278.
It has been nearly two decades since the Commission
first adopted rules addressing prerecorded telemarketing calls under the Telephone Consumer Protection
Act of 1991. Since then, technologies have developed
that allow telemarketers to conduct so-called “robocall” campaigns, generating more than a thousand
prerecorded message calls per minute at a cost of just
a few cents per call.
The rulemaking we initiate today considers whether

Page 27

consumers are adequately protected against unsolicited and unwanted telemarketing calls. We propose to
prohibit telemarketers from making prerecorded
telemarketing calls without first obtaining consumers'
written consent, and to allow consumers who no
longer wish to receive these calls to withdraw their
consent through convenient automated methods.
Those changes will empower consumers to choose
the messages they wish to receive and avoid those
they do not. They will also harmonize our rules with
the FTC's recently amended Telemarketing Sales
Rule. Because of recent rule changes by the FTC,
businesses now operate under different robocall requirements depending on whether they are subject to
both the FTC's and the FCC's rules, or only to the
FCC's. For consumers, this may be confusing.
Today's action will help reconcile differences between FTC and FCC rules, and will advance the
goals of the Telephone Consumer Protection Act. It
will help fulfill Congress' directive to the Commission in the Do-Not-Call Implementation Act to
“maximize consistency” of our telemarketing rules
with the FTC's.
I salute the Federal Trade Commission for its action
and leadership on this issue. I look forward to further
work with my colleagues as we seek to ensure that
consumers are protected and empowered.
*1534 STATEMENT OF COMMISSIONER MICHAEL J. COPPS
Re: Rules and Regulations Implementing the
Telephone Consumer Protection Act of 1991, CG
Docket No. 02-278.
This Notice of Proposed Rulemaking kicks off another consumer-focused proceeding in which we expand our goal--taken up in 2003 when we implemented the Do-Not-Call registry and again in 2008
when we eliminated the expiration of the registry--of
returning a measure of privacy and control to citizens, allowing each of us to choose limits on the
telemarketing calls we receive. The Notice specifically addresses pre-recorded telemarketing calls. It
tentatively concludes that harmonizing the Commission's rules, adopted pursuant to the Telephone Consumer Protection Act, with the Federal Trade Commission's recently-amended Telemarketing Sales
Rule, would reduce the potential for consumer and

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

25 F.C.C.R. 1501, 25 FCC Rcd. 1501, 2010 WL 276614 (F.C.C.)

industry confusion. I am pleased to support the item
and look forward to an expeditious conclusion to the
entire proceeding as quickly as we can do it.
I commend the Chairman and my colleagues for putting a priority on this consumer-friendly item, another step in building a strong record of proactive
consumer protection here at the FCC. And gratitude
also to the Bureau for its work in teeing this up for
us.
*1535 STATEMENT OF COMMISSIONER
ROBERT M. MCDOWELL
**20 Re: Rules and Regulations Implementing
the Telephone Consumer Protection Act of 1991,
CG Docket No. 02-278.
I commend the Chairman and his staff for their work
on updating the Federal Communications Commission's rules on robocalls. I also thank the Chairman
for reinstating the practice of including actual text of
the proposed rules in the Notice of Proposed Rulemaking (NPRM). As I have stated many times before, the American public and Congress could greatly
benefit from such transparency.
In short, this NPRM updates and harmonizes our
rules with the Federal Trade Commission's (FTC)
counterpart rules and, in effect, would reduce consumer confusion for those who wonder why they are
receiving unsolicited robocalls from some entities but
not from others.
Over the years, consumers have complained about
unsolicited telemarketing calls - especially robocalls interrupting their lives, especially around dinnertime
and other important moments in their lives. There are
two areas where this NPRM proposes to empower
consumers to control what calls they receive. First, a
consumer would only receive such calls if prior express written consent has been given by the consumer
to the telemarketer. For convenience sake, such consent could be given electronically. Second, robocalls
would have to include an automated message that
allows a consumer to “opt out” of receiving future
calls. The proposal requires this message to be interactive so the consumer can elect to use the “opt out”
feature immediately. This NPRM raises important
questions regarding matters such as established business relationships, and I look forward to reviewing

Page 28

the record as we move forward.
Finally, I note that these rules apply only to commercial calls and do not apply to political calls, nonprofit calls and, most importantly, emergency calls -all which are held to higher standards of protection.
On that topic, I thank the staff for working with my
office to ensure that the exemption for emergency
calls includes calls that are permitted under the
Warning, Alert, and Response Network Act (WARN
Act) and the Commercial Mobile Alert System
(CMAS).
*1536 STATEMENT OF COMMISSIONER MIGNON L. CLYBURN
Re: Rules and Regulations Implementing the
Telephone Consumer Protection Act of 1991, CG
Docket No. 02-278.
Thank you to the Bureau for its fine work on this
Notice. The Notice is positive both for consumers
and industry. There is little question that consumers
stand to benefit from having increased control over
whether or not they may receive telephone solicitations at home. By proposing to require sellers and
telemarketers to obtain residential telephone subscribers' prior written consent for prerecorded calls,
we are ensuring that consumers are making an affirmative choice to receive such calls. For industry,
it is important in this arena to have a uniform set of
rules that makes compliance straightforward. While
in some cases it may be preferential to permit a varied regulatory approach, in this case it appears that
continuity across jurisdictions is far more sensible.
**21 I look forward to reviewing the comments filed
in response to this Notice and working with my fellow Commissioners to institute appropriate rules that
enable consumers to prevent the receipt of unwanted
prerecorded calls.
*1537 STATEMENT OF COMMISSIONER
MEREDITH A. BAKER
Re: Rules and Regulations Implementing the
Telephone Consumer Protection Act of 1991, CG
Docket No. 02-278
I am pleased to support this Notice of Proposed

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

25 F.C.C.R. 1501, 25 FCC Rcd. 1501, 2010 WL 276614 (F.C.C.)

Rulemaking today. It takes an important step toward
policy changes that will give consumers greater control over the prerecorded telemarketing calls they
receive--calls that many consumers find annoying
and intrusive. At the same time, the proposed rules
would include important exemptions, including for
calls initiated for emergency purposes and health
care-related calls subject to the Health Insurance
Portability and Accountability Act of 1996. I also
think it is good to harmonize rules across the federal
government where the statute allows and it makes
good policy sense, as we propose to do here with the
telemarketing rules of the Federal Trade Commission. I do have some questions about the proposal
related to established business relationships and I
look forward to reviewing the record on that issue in
particular. Thanks to the Consumer & Governmental
Affairs Bureau for all of your hard work on this item.
25 F.C.C.R. 1501, 25 FCC Rcd. 1501, 2010 WL
276614 (F.C.C.)
END OF DOCUMENT

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

Page 29