Pimental v. Google, Inc. et al

Filing 65

Request for Judicial Notice re 64 MOTION to Stay Litigation Based on Recently Filed FCC Petition filed byGoogle, 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)(Related document(s) 64 ) (Reiten, Joshua) (Filed on 3/26/2012)

EXHIBIT 6

71 Rad. Reg. 2d (P & F) 445, 7 F.C.C.R. 8752, 7 FCC Rcd. 8752, 1992 WL
690928 (F.C.C.)

71 Rad. Reg. 2d (P & F) 445, 7 F.C.C.R. 8752, 7
FCC Rcd. 8752, 1992 WL 690928 (F.C.C.)
FCC 92–443
**1 IN THE MATTER OF
RULES AND REGULATIONS IMPLEMENTING
THE TELEPHONE CONSUMER PROTECTION
ACT OF 1991
CC Docket No. 92–90
Adopted: September 17, 1992; Released: October 16,
1992
REPORT AND ORDER
*8752 By the Commission: Commissioner Barrett
issuing a statement.
*8753 I. INTRODUCTION
1. By this action, the Commission is amending its
rules and regulations to establish procedures for
avoiding unwanted telephone solicitations to residences, and to regulate the use of automatic telephone dialing systems, prerecorded or artificial voice
messages, and telephone facsimile machines.
II. BACKGROUND
2. This proceeding was initiated by passage of the
Telephone Consumer Protection Act of 1991, Public
Law 102–243, December 20, 1991, which amended
Title II of the Communications Act of 1934, 47
U.S.C. § 201 et seq., by adding a new section, 47
U.S.C. § 227 (TCPA). In its preamble, the TCPA
recognizes the legitimacy of the telemarketing industry, but states that unrestricted telemarketing could be
an intrusive invasion of privacy and, in some instances, a risk to public safety. Accordingly, the
TCPA imposes restrictions on the use of automatic
telephone dialing systems, the use of artificial or prerecorded voice, and on the use of telephone facsimile

Page 1

machines to send unsolicited advertisements. Specifically, the TCPA prohibits autodialed and prerecorded
voice message calls to emergency lines, any health
care facility or similar establishment, and numbers
assigned to radio common carrier services or any
service for which the called party is charged for the
call, unless the call is made with the prior express
consent of the called party or is made for emergency
purposes. The TCPA also prohibits calls made without prior express consent to a residence using an artificial or prerecorded voice to deliver a message,
unless it is an emergency call or is exempted by the
Commission. Unsolicited advertisements may not be
transmitted by telephone facsimile machines. Those
using such machines or transmitting artificial or prerecorded voice messages are subject to certain identification requirements. The statute *8754 outlines
various remedies for violations of the TCPA. Finally,
the TCPA requires that the Commission consider
several methods to accommodate telephone subscribers who do not wish to receive unsolicited advertisements, including live voice solicitations.
3. The TCPA notes that, “[i]ndividuals' privacy
rights, public safety interests, and commercial freedoms of speech and trade must be balanced in a way
that protects the privacy of individuals and permits
legitimate telemarketing practices.” TCPA at Section
2(9). The preamble of the TCPA notes that the use of
telemarketing is widespread, and generates more than
$400 billion in commercial activity each year,
through more than 30,000 businesses employing
more than 300,000 people. TCPA at Section 2(2)–
(4).[FN1] Our task in this proceeding is to implement
the TCPA in a way that reasonably accommodates
individuals' rights to privacy as well as the legitimate
business interests of telemarketers.
**2 4. In accordance with the requirements of the
TCPA, the Commission, on April 10, 1992, adopted a
Notice of Proposed Rulemaking (NPRM) in this proceeding.[FN2] The NPRM proposed rules implementing provisions of the TCPA which place restrictions
on the use of automatic telephone dialing systems
and artificial or prerecorded messages. The NPRM
requested comment on the proposed rules, and requested comment and analysis regarding several alternative methods for restricting telephone solicita-

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71 Rad. Reg. 2d (P & F) 445, 7 F.C.C.R. 8752, 7 FCC Rcd. 8752, 1992 WL
690928 (F.C.C.)

tions to residential subscribers. Approximately two
hundred and forty parties, including 83 newspapers,
25 industry and trade associations, 6 consumer advocacy groups, and 17 common carriers submitted
comments or reply comments in response to the
NPRM. A list of those parties is contained in Appendix A.[FN3]
5. In this proceeding, we analyze the costs and benefits associated with each of the alternatives for meeting the goals of the TCPA. The rules we adopt attempt to balance the privacy concerns which the
TCPA seeks to protect, and the continued viability of
beneficial and useful business services. We adopt
rules which protect residential telephone subscriber
privacy by requiring telemarketers to place a consumer on a do-not-call list if the consumer *8755
requests not to receive further solicitations.[FN4] Further, we adopt, as proposed: (1) the prohibitions on
calls made by automated telephone dialing systems
and artificial or prerecorded voice messages (in the
absence of an emergency or the prior express consent
of the called party) to emergency lines, health care
facilities, radio common carriers or any number for
which the called party is charged for the call; (2) the
prohibition on artificial or prerecorded voice message
calls to residences; (3) the prohibition on the transmission of unsolicited advertisements by telephone
facsimile machines; (4) the requirements that telephone facsimile machines and artificial or prerecorded voice messages identify the sender of such
transmissions; (5) the requirement that artificial or
prerecorded voice messages release the line of the
called party within 5 seconds of notification that the
called party has hung up; and (6) the prohibition on
calls which simultaneously engage two or more lines
of a multi-line business. We exempt from the prohibition on prerecorded or artificial voice message calls
to residences those calls: not made for commercial
purposes; made for commercial purposes which do
not transmit an unsolicited advertisement; made to a
party with whom the caller has an established business relationship; and non-commercial calls by taxexempt nonprofit organizations.
III. DISCUSSION
A. Definitions
6. Many commenters request clarification, or offer
their own definitions, of terms which appear in the
NPRM and the TCPA. Accordingly, definitions of

Page 2

the following terms are set forth in Section
64.1200(f) of our rules, 47 C.F.R. § 64.1200(f): [FN5]
automatic telephone dialing system (“autodialer”);
established business relationship; telephone facsimile
machine; telephone solicitation, and; unsolicited advertisement.[FN6] We emphasize that the term autodialer does not include the transmission of an artificial or prerecorded voice. As indicated in the discussion below, we decline to adopt definitions offered by
commenters where such definitions fit only a narrow
set of circumstances, in favor of broad definitions
which best reflect legislative intent by accommodating the full range of telephone services and telemarketing practices.
**3 B. Procedures for Avoiding Unwanted Telephone Solicitations to Residences
*8756 7. The TCPA and our rules, as adopted here,
define “telephone solicitation” as 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, but such term does not include a call or
message (A) to any person with that person's prior
express invitation or permission, (B) to any person
with whom the caller has an established business
relationship, or (C) by a tax-exempt nonprofit organization. Definitions of the terms “prior express consent” and “established business relationship” are set
forth at paras. 29–35, infra. The TCPA requires that
the Commission prescribe regulations to implement
procedures for protecting the privacy rights of residential telephone subscribers in an efficient, effective, and economic manner. § 227(c)(2). In determining which methods or procedures would best enable
subscribers to avoid unwanted telephone solicitations, the Commission analyzed: the respective costs
and benefits of several alternatives; which public or
private entities are capable of administering the
available alternatives; the impact of the various alternatives on small businesses and second class mail
permit holders; and whether there is a need for additional authority from Congress to further restrict telephone solicitations.[FN7]
1. Live vs. Artificial or Prerecorded Voice Solicitations.
8. In the NPRM, the Commission requested comment
on whether it is in the public interest to recognize an
inherent difference in the nuisance factor between
artificial or prerecorded voice calls as opposed to live

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71 Rad. Reg. 2d (P & F) 445, 7 F.C.C.R. 8752, 7 FCC Rcd. 8752, 1992 WL
690928 (F.C.C.)

solicitations. Further, the NPRM raised the issue of
whether regulation of live solicitation is necessary to
protect residential subscriber privacy rights. Most
commenters do not object to some form of restriction
on live solicitations, but distinguish between live
solicitations, particularly those made by predictive
dialers (which deliver calls to live operators), and
solicitations completed by artificial or prerecorded
voice messages. These commenters contend that artificial or prerecorded voice solicitations are a greater
nuisance and an invasion of privacy, and cite the relatively greater number of complaints to *8757 the
Commission about this specific mode of solicitation
to support this claim.[FN8] Several commenters, however, cite legislative history in asserting that Congress intended to regulate all solicitations, whether
live or artificial or prerecorded voice, because both
types of unwanted solicitations represent a nuisance
and an invasion of privacy.[FN9] These commenters
note that the figures on consumer complaints received by the Commission, suggesting that live solicitations are much less intrusive, do not fully reflect
the volume of complaints regarding live solicitations
because not all such complaints are reported directly
to the Commission.[FN10]
**4 9. While the commenters demonstrate that there
are separate privacy concerns associated with artificial or prerecorded solicitations as opposed to live
operator solicitations (e.g. calls placed by recorded
message players can be more difficult for the consumer to reject or avoid), the record as a whole indicates that consumers who do not wish to receive telephone solicitations would object to either form of
solicitation. We are persuaded by the comments, the
numerous letters from individuals, and the legislative
history that both live and artificial or prerecorded
voice telephone solicitations should be subject to
significant restrictions.[FN11] Accordingly, as discussed below, we select company-specific do-not-call
lists as the most effective alternative to protect residential subscribers from unwanted live and artificial
or prerecorded voice message solicitations. For the
reasons discussed below, we believe that this alternative most effectively balances the privacy interests of
residential subscribers who wish to avoid unwanted
solicitations (whether live or by artificial or prerecorded message) against the interests of telemarketers
in maintaining useful and responsible business *8758
practices and of consumers who do wish to receive
solicitations.[FN12]

Page 3

2. Alternatives to Restrict Telephone Solicitation to
Residences.
10. As directed by the TCPA, the Commission has
considered a number of alternatives for residential
telephone subscribers to avoid receiving unwanted
telephone solicitations. These include a national database, network technologies, special directory markings, time of day restrictions, and industry-based or
company-specific do-not-call lists. The NPRM requested comment, as well as focused cost/benefit
analyses, of these and any other methods proposed
for protecting the privacy of residential telephone
subscribers.
11. National Database. A majority of the commenters
oppose this option because a national database of
consumers who do not wish to receive telemarketing
calls would be costly and difficult to establish and
maintain. Estimates to start and operate a national
database in the first year ranged from $20 million to
$80 million, with commenters agreeing that operations would cost as much as $20 million annually in
succeeding years.[FN13] The American Express Company (AMEX) asserts that the Commission's original
estimates did not include the costs of educating consumers about the database, gathering and disseminating the data, and regularly updating the database.
Several commenters, noting that businesses participating in state do-not-call databases pay as much as
$1,500 annually, contend that many small businesses
simply may not be able to afford participation in a
national database.[FN14] Commenters assert that for
most small businesses, participation would require an
investment in computer software and hardware if the
database were to be available on floppy disk, or
would require additional personnel to review lists if a
paper version of the list were made available to small
businesses.[FN15] Many commenters express concern
that consumers, as well as telemarketers, would ultimately bear the costs of a national database, either
through higher prices charged by telemarketers or
through costs incurred by a national database administrator and not recovered through fees on telemarketers. Further, several commenters question how
participation in a national database would be enforced against telemarketers.[FN16]
**5 12. Numerous commenters argue that consumers
would be disappointed in a national database because
they would still receive unwanted calls after placing

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690928 (F.C.C.)

themselves in the national database, either because
there will be a time lag in getting their preferences to
telemarketers or because they would *8759 still receive calls from exempted businesses or organizations.[FN17] See paras. 32–41, infra. They note that
since nearly one-fifth of all telephone numbers
change each year, any database, whether local, regional, or national, would be continuously obsolete
and would require constant updates in order to remain accurate.[FN18] Commenters assert that quarterly
or semiannual updates would not be sufficiently frequent to avoid obsolescence or to accommodate consumer expectations.[FN19] AT & T states that a national database would contain millions of names and
addresses, and that at least 20 percent of those would
change every year as people move, change telephone
numbers, disconnect service, or simply decide to enter or leave the database. Commenters also oppose
this option because consumers must make an all or
nothing choice: either reject all telemarketing calls,
even those which the consumer might wish to receive, or accept all telemarketing calls, including
those which the consumer does not wish to receive.[FN20] Moreover, several commenters question
whether the confidentiality of telephone subscriber
information could be adequately protected if it were
maintained on a widely accessible list, and note that
such information could be misused to compile telemarketing lists.[FN21] Other commenters contend that
a national do-not-call database would destroy the
confidentiality of subscribers having unpublished or
unlisted numbers.[FN22]
13. Commenters who support the creation of a national do-not-call database contend that it is the most
efficient and effective means for avoiding unwanted
telephone solicitations. Lejeune Associates and CSC
contend that the do-not-call database which Lejeune
currently operates in Florida could easily be expanded to form a national do-not-call database. CSC
and OPUC suggest that an independent organization
(such as the National Exchange Carrier Association
or a telemarketing trade association) could administer
a national database, perhaps under the supervision of
a board of governors from government, the industry,
and the public. Consumer Action envisions a system
in which all telemarketers would send their calling
lists to a third party administrator who would compare and remove all names which appear on the administrator's national do-not-call database. It maintains that such a system would allow participation by
subscribers with unpublished numbers, and would

Page 4

lower the risk of breaches in subscriber confidentiality. The Independent Telecommunications Network
(ITN) suggests that the Line Information Database
(LIDB) currently maintained by local exchange carriers (LECs) could be used to register *8760 subscriber
do-not-call preferences nationwide, and could be accessed by telemarketers with the proper equipment
for a minimal fee for each query.
**6 14. Upon careful consideration of the costs and
benefits of creating a national do-not-call database,
we believe that the disadvantages of such a system
outweigh any possible advantages. A national database would be costly and difficult to establish and
maintain in a reasonably accurate form. As noted
above, the most conservative estimates assume costs
of $20 million in the first year of operation alone.
The impact of the costs of retooling or hiring additional personnel for compliance would be greater on
small or start-up businesses. Moreover, the greater
these costs to smaller entities, the more likely that
such costs would be passed on to consumers.[FN23]
Telemarketers' only means of making up the difference, given the absence of federal involvement in the
establishment, operation, or maintenance of a national database, would be to pass along such costs to
consumers.[FN24] Commenters supporting a national
database suggest that it be updated at least every
three months. However, frequent updates would increase costs for both the database administrator and
telemarketers. In addition, many commenters point
out that each update would increase the potential for
error in publishing or recording the telephone numbers of consumers requesting placement on the list.
Regional or local telemarketers could be required to
purchase a national do-not-call database even if they
made no solicitations beyond their states or regions;
additional rules to compensate for such varied telemarketing practices would, as with small businesses,
increase the complexity and cost of implementing a
national database. Additionally, commenters indicate
that on-line computer databases present significantly
greater technological difficulties.[FN25]
15. We are persuaded by the comments that a national database which *8761 includes information in
addition to telephone numbers (for greater accuracy
and for verification purposes) could make national
database information a target for unscrupulous telemarketers, and would present problems in protecting
telemarketer proprietary information. A national da-

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690928 (F.C.C.)

tabase would similarly risk the privacy of telephone
subscribers who have paid to have unpublished or
unlisted numbers. While a national database would
serve those who wish to avoid all telemarketing calls,
commenters point to the success of telemarketing as
proof that telephone subscribers by and large would
like to maintain their ability to choose among those
telemarketers from whom they do and do not wish to
hear.[FN26] In view of the many drawbacks of a national do-not-call database, and in light of the existence of an effective alternative (company-specific
do-not-call lists), we conclude that this alternative is
not an efficient, effective, or economic means of
avoiding unwanted telephone solicitations.
16. Network Technologies. Most commenters oppose
this option because they contend that it is not technologically feasible and is too costly.[FN27] The use of a
special area code or telephone number prefix for
telemarketers, for example, requires the called party
to be provided with a means to reject telephone solicitations by using automatic number identification
(ANI) or a Caller ID service to block calls from a
designated telemarketer prefix. Commenters concur
that the SS7 technology which facilitates call blocking is costly to deploy; that the SS7 technology is not
available to all telephone subscribers in all areas of
the nation; that the North American Numbering Plan
(NANP) may lack sufficient numbers to set aside an
entire prefix for telemarketers; and that a service
blocking all telemarketer calls would force consumers to sacrifice any choice between telemarketers
from which they do and do not wish to hear.[FN28]
Even if this option were feasible, commenters argue
that businesses would have to change their telephone
numbers and all references to those numbers in every
medium, which would be prohibitively expensive.
Moreover, businesses may decide to invest in separate telephone lines for telemarketing to customers
with an ongoing business relationship, an expense
smaller enterprises perhaps could not afford.[FN29]
GTE Service Corporation (GTE), SNET, and U.S.
West express concern that exchange carriers would
be required to finance the implementation of this option, when telemarketers alone should bear the costs
of protecting subscribers from unwanted telephone
solicitations. Commenters concur that any ubiquitous
call blocking system would require costly switch
upgrades by LECs to accommodate the SS7 technology which permits call *8762 blocking.[FN30] In contrast, InterVoice and ITN argue that much of the infrastructure necessary to implement call blocking

Page 5

network technology nationally is already in place,
and that this technology is an effective means for
avoiding unwanted solicitations.
**7 17. In view of the costs and technological uncertainties associated with implementation, we reject the
network technologies alternative for avoiding unwanted telephone solicitations. This alternative
would ultimately place the cost of consumer privacy
protection on telemarketers, local exchange carriers,
and consumers alike. The more than 30,000 businesses engaged in telemarketing would be required to
incur costs associated with changing their telephone
numbers to numbers which carry a telemarketing
prefix, and would perhaps be forced to obtain new
lines for conducting operations other than solicitations. All LECs would be forced to upgrade their
networks without regard to demand for technology.
Moreover, it is unclear whether fees on telemarketers
would be sufficient to cover the costs of making call
blocking technology universally available, raising the
possibility that such costs would be passed on to residential telephone subscribers, in violation of the
TCPA. Based on the commenters' assessments of the
cost and technological barriers to implementation of
this alternative, we conclude that network technologies are not the best means for accomplishing the
objectives of the TCPA at this time.
18. Special Directory Markings. A majority of commenters oppose this alternative because it would require telemarketers to purchase and review thousands
of local telephone directories, at great cost and to
little ultimate effect. Commenters note, for example,
that telemarketing firms compile calling lists from
many sources other than local telephone directories.[FN31] Hence, many telemarketers would not ordinarily discover a subscriber's do-not-call preference
in the process of targeting likely prospects. Commenters argue that this alternative has many of the
disadvantages of the national database option, because subscribers would have to make an all or nothing choice about receiving telemarketing calls, and
subscribers would be disappointed at the time lag in
entering their preference, during which they would
continue to receive unwanted calls. Moreover, since
directories are published only once a year, the subscriber preference information would quickly become
obsolete, and telemarketers would pay enormous
costs to access any computerized telephone directories.[FN32] Commenters also argue that special direc-

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71 Rad. Reg. 2d (P & F) 445, 7 F.C.C.R. 8752, 7 FCC Rcd. 8752, 1992 WL
690928 (F.C.C.)

tory markings would not *8763 permit subscribers
with unpublished or unlisted numbers to avoid telephone solicitations.[FN33] BellSouth and Consumer
Action argue that this option unfairly divides responsibility for curbing unwanted calls between LECs and
telemarketers, when telemarketers alone should bear
any relevant costs or administrative burdens.[FN34]
Moreover, U.S. West contends that disappointed subscribers will seek relief from the LEC rather than an
offending telemarketer if preferences are not respected or are not communicated to telemarketers in
a timely fashion.
19. We agree with commenters that this alternative
would be too costly and burdensome for telemarketers to implement efficiently, regardless of their
size, especially given the existence of an effective
alternative (company-specific do-not-call lists). Such
a system would rely on much obsolete information
and could not be updated in a timely fashion. Significantly, implementation of special directory markings
would place much of the burden of cost and implementation on LECs, which could not pass on such
costs to residential telephone subscribers because the
TCPA prohibits charges to consumers for privacy
protection. § 227(c)(2). Unpublished and unlisted
numbers could not be included in such a system. Ultimately, this option combines the disadvantages of
maximum cost to all participants with minimal potential effectiveness, and therefore is not a suitable
means of accomplishing the goals of the TCPA.
**8 20. Industry–Based or Company–Specific Do–
Not–Call Lists. A majority of commenters support
company-specific do-not-call lists as the most effective, most easily implemented, and the least costly of
each of the methods proposed to curb unwanted telephone solicitations.[FN35] Commenters supporting this
approach state that the company-specific do-not-call
list alternative appropriately places the burden of
compliance squarely on telemarketers.[FN36] These
commenters view this method as less costly and less
burdensome because many telemarketers already
maintain company-specific do-not-call lists, and because most telemarketers can readily verify and compare subscriber information with information drawn
from their own customer lists.[FN37] Commenters favoring this option note several reasons for implementing it: (1) it is effective in halting unwanted solicitations; (2) it accords greater recognition of consumer privacy interests than a national database or

Page 6

special directory *8764 markings; (3) it eliminates
anticompetitive concerns in special directory markings or a national database, in which phone companies could have access to proprietary information; (4)
it allows desired solicitations; (5) it places costs
squarely on telemarketers, yet avoids undue costs or
restrictions for telemarketers; (6) it avoids burdening
Commission resources; and (7) it appropriately balances legitimate privacy expectations against legitimate uses of telemarketing.[FN38]
21. In response to our observation in the NPRM that
telemarketers would be required to produce evidence
of compliance with any requirement mandating company or industry-based do-not call lists, several
commenters suggest that telemarketers be required to
follow certain guidelines for maintaining such lists.
For example, commenters propose that telemarketers
be required to: (1) maintain a written policy implementing its do-not-call procedures; (2) inform and
train telemarketing representatives in the existence
and implementation of the company-specific do-notcall list; (3) inform subscribers of their rights to be
placed on such a list; (4) place a telephone subscriber
on a do-not-call list within reasonable time after the
request is made (or not later than 60 days); and (5)
maintain the request for a reasonable period after the
request is made.[FN39] Commenters assert that telemarketers who can certify and demonstrate compliance with the above should be afforded a legal presumption of compliance with the rules and allowed to
use such demonstration as a defense in any private or
Commission enforcement action.[FN40] A few commenters propose that telephone subscribers be notified of Commission policy and telemarketer procedures through telemarketer mailings, local subscriber
phone directories, news, bill inserts, or in a live preamble prior to solicitation.[FN41] Some commenters
propose that residential subscribers be given the option of contacting DMA, which maintains an industry-based do-not-call list (through its Telephone Preference Service), in lieu of contacting numerous companies individually.
**9 22. Commenters opposed to industry-based or
company-specific do-not-call lists contend that existing industry-based and company-specific lists have
not reduced the number of unwanted telephone solicitations, and that Congress has found such efforts ineffective.[FN42] Further, these commenters argue that
these alternatives provide no affirmative method for

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the consumer to avoid or reject a telemarketer's first
call in advance. Moreover, Private Citizen, Inc. (Private Citizen) contends that telemarketers do not always heed an initial do-not-call request, and may call
a consumer several times before honoring a *8765
consumer's request not to receive further calls or solicitations.
23. The legislative history suggests that properly implemented company-specific do-not-call lists would
satisfy the statutory requirements of the TCPA.[FN43]
In light of that assertion, and upon weighing the costs
and benefits of company-specific and industry-based
do-not-call lists against the costs and benefits of the
other alternatives presented in the record, we conclude that the company-specific do-not-call list alternative is the most effective and efficient means to
permit telephone subscribers to avoid unwanted telephone solicitations.[FN44] Such lists are already maintained on a voluntary basis by many telemarketers
and could be established swiftly by individuals, small
businesses, or large companies. Mandatory companyspecific do-not-call lists would allow residential subscribers to selectively halt calls from telemarketers
from which they do not wish to hear. Such lists
would also afford residential telephone subscribers
with a means to terminate a business relationship in
instances in which they are no longer interested in
that company's products or services. Additionally,
businesses could gain useful information about consumer preferences, and can comply with such preferences without overly burdensome costs or administrative procedures. This alternative would best protect
residential subscriber confidentiality because do-notcall lists would not be universally accessible, and
could be verified with a telemarketer's own customer
information. Company-specific do-not-call lists
would impose the costs of protecting consumer privacy squarely on telemarketers rather than telephone
companies or consumers who do not wish to be
called. Moreover, the costs of maintaining a do-notcall list are less likely to be passed on to residential
telephone subscribers even indirectly, because they
would be minimal, involving only the addition of donot-call preferences to *8766 existing calling
lists.[FN45] Such lists are more likely to be accurate
than a national database because a single party would
be responsible for recording and maintaining do-notcall requests, and that party could verify a consumer's
identification with its own customer information. In
sum, the company-specific do-not-call list alternative
represents a careful balancing of the privacy interests

Page 7

of residential telephone subscribers against the commercial speech rights of telemarketers and the continued viability of a valuable business service. For
these reasons, we conclude that the company-specific
do-not-call list is the alternative that best accomplishes the purposes of the TCPA.
**10 24. The comments persuade us that we must
mandate procedures for establishing companyspecific do-not-call lists to ensure effective compliance with and enforcement of the requirements for
protecting consumer privacy.[FN46] See § 64.1200(e).
Unlike the DMA list cited by CSC at n. 42, supra, the
alternative we adopt today requires the compliance of
all telemarketers engaged in telephone solicitation as
defined in the TCPA. Thus, any person or entity engaged in telephone solicitation is required to maintain
a list of residential telephone subscribers who request
not to be called by the telemarketer.[FN47] The requirements will help ensure that residential subscriber privacy is protected from further undesired
solicitations and will avoid the wide dissemination of
information regarding a subscriber's do-not-call request. Each person or entity making a telephone solicitation, or on whose behalf a telephone solicitation
is made, will be held ultimately responsible for maintenance of its do-not-call list and will be fully accountable for any problems arising in the maintenance and accuracy of the list.[FN48] Telemarketers are
required to maintain do-not-call lists on a permanent
basis, so that consumers will not be burdened with
periodic calls to renew a do-not-call *8767 request.
Moreover, in the absence of a specific request by the
subscriber to the contrary, a residential subscriber's
do-not-call request shall apply to the particular business entity making the call (or on whose behalf a call
is made), and will not apply to affiliated entities
unless the consumer reasonably would expect them to
be included given the identification of the caller and
the product being advertised.[FN49] Finally, §
227(C)(5) of the TCPA provides that a telemarketer's
implementation, with due care, of reasonable practices and procedures in compliance with the requirements for protection of residential subscribers from
unwanted telephone solicitations will be an affirmative defense to a cause of action brought regarding a
violation of such requirements.[FN50]
25. Time of Day Restrictions. While many commenters support reasonable time of day restrictions on
telemarketing calls,[FN51] several state that such re-

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strictions are unnecessary because responsible telemarketers already restrict their calls to reasonable
hours as a sound business practice.[FN52] The OPUC
notes that many telemarketing complaints mention
the late or unreasonable hour of the call. Several
commenters urge the Commission not to adopt time
of day restrictions which would conflict with the requirements of the Fair Debt Collection Practices Act
(FDCPA).[FN53]
26. We concur with commenters that responsible
telemarketers are likely to restrict their calls to reasonable hours. However, both the record and the legislative history indicate that early morning and late
night telephone solicitations are a significant nuisance to telephone subscribers. In light of the record
and the legislative history, we conclude that it is in
the public interest to impose time of day restrictions
on telephone solicitations as reasonable limitations to
invasions of residential subscriber privacy. We *8768
concur with the commenters that any conflict between the requirements of the TCPA and the FDCPA
would make compliance with both statutes confusing.
Accordingly, telemarketers will be subject to the
same time of day restrictions as are imposed on debt
collectors under the FDCPA. These regulations will
coincide with the FDCPA prohibition against calls
before the hour of 8 AM and after 9 PM, local time at
the called party's location. We believe that time of
day restrictions will protect consumers from objectionable calls while not unduly burdening legitimate
telemarketing activity.
**11 C. Autodialers and Artificial or Prerecorded
Messages
1. General Prohibitions.
27. The TCPA prohibits the use of autodialers and
prerecorded messages to place calls to an emergency
telephone line, to health care facilities, to radio common carrier services, and to services for which the
called party is charged for the call, except in emergencies or with the prior express consent of the called
party. The TCPA, however, permits the Commission
to exempt from the residential prohibition calls which
are non-commercial and commercial calls which do
not adversely affect the privacy rights of the called
party and which do not transmit an unsolicited advertisement. §§ 227(b)(2)(B). Accordingly, the NPRM
proposed to exempt these calls from the residential
prohibitions, as well as calls from parties with which
the called party has an established business relation-

Page 8

ship and calls from tax-exempt nonprofit organizations.
28. Commenters generally support the prohibitions in
the NPRM on the use of autodialers and prerecorded
messages. Specifically, Centel Corporation (Centel)
and Citicorp concur that the restrictions set forth in
the NPRM properly balance consumer privacy concerns and legitimate telemarketing practices. Many
commenters, however, request clarification regarding
the scope of these prohibitions. As discussed below,
we adopt the general prohibitions and the exemptions
proposed in the NPRM, clarifying their scope as requested.
2. Prior Express Consent.
29. The TCPA allows autodialed and prerecorded
message calls if the called party expressly consents to
their use. Several commenters express concern that
they would unintentionally incur liability by placing
calls to individuals who provided a number at one of
the “prohibited destinations” (for example, a hospital
or an emergency line) as the number at which that
individual could be reached.[FN54] Commenters note
that they have no way of knowing whether numbers
provided to them fall in one of the categories of destinations to which calls are prohibited, or whether
such numbers have been changed without notification.[FN55]
*8769 30. Many commenters express the view that
any telephone subscriber that provides his or her
telephone number to a business does so with the expectation that the party to whom the number was
given will return the call. Hence, any telephone subscriber who releases his or her telephone number has,
in effect, given prior express consent to be called by
the entity to which the number was released.[FN56]
Private Citizen urges the Commission to reject this
interpretation and points out that some 800 numbers
have the capacity to record the telephone number of
an incoming call without the caller's knowledge or
consent. It urges the Commission to clarify that telemarketers may not use the telephone numbers of persons who call to make inquiries without expressly
requesting permission to use the number for that purpose.
31. We emphasize that under the prohibitions set
forth in § 227(b)(1) and in §§ 64.1200(a)–(d) of our
rules, only calls placed by automatic telephone dial-

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690928 (F.C.C.)

ing systems or using an artificial or prerecorded voice
are prohibited. If a call is otherwise subject to the
prohibitions of § 64.1200, persons who knowingly
release their phone numbers have in effect given their
invitation or permission to be called at the number
which they have given, absent instructions to the contrary.[FN57] Hence, telemarketers will not violate our
rules by calling a number which was provided as one
at which the called party wishes to be reached. However, if a caller's number is “captured” by a Caller ID
or an ANI device without notice to the residential
telephone subscriber, the caller cannot be considered
to have given an invitation or permission to receive
autodialer or prerecorded voice message calls. Therefore, calls may be placed to “captured” numbers only
if such calls fall under the existing exemptions to the
restrictions on autodialer and prerecorded message
calls.
**12 3. Exemptions to Prohibited Uses of Artificial
or Prerecorded Messages.
32. Established Business Relationship. The NPRM
tentatively concluded that the privacy rights the
TCPA intended to protect through the prohibition on
prerecorded message calls to residences are not adversely affected where the called party has or had a
voluntary business relationship with the caller. Most
commenters support the proposed exemption in the
NPRM for calls to persons with whom the caller has
a prior or existing business relationship. CSC argues
that the proposed exemption is overbroad because it
extends beyond current or ongoing business relationships to prior business relationships. Further, CSC
contends that the TCPA intended to exempt business
relationship calls only from its restrictions on live
operation solicitations and not from the autodialer
prohibitions. CSC maintains that, at a minimum, the
Commission should require actual consent to telephone solicitations and must clearly provide a means
by which consumers may terminate any such relationship.
*8770 33. In addition, we sought comment on the
proper scope of this exemption and on the definition
of the term “business relationship.” However, comments regarding the proper definition and scope of
this exemption vary widely. Many commenters concur that an existing business relationship could not be
formed with a residential telephone subscriber solely
on the basis of a prior solicitation.[FN58] Many commenters contend that the Commission should adhere

Page 9

to the broadest possible definition of the business
relationship, rather than a narrow definition which
may exclude many categories of appropriately exempted calls.[FN59] Other commenters suggest various
factors for determining the existence of a business
relationship, including an exchange of consideration;
a transaction between the caller and the called party
within some specified period prior to the telephone
solicitation; a previous inquiry or an application
made by the called party to the caller for products or
services; time elapsed since last inquiry or transaction; and prior express consent by the called party to
the caller for future calls.[FN60]
34. Although the TCPA does not explicitly exempt
prerecorded message calls from a party with whom
the consumer has an established business relationship, it provides an exemption for commercial calls
which do not adversely affect residential subscriber
privacy interests and do not include an unsolicited
advertisement. We conclude, 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. Moreover, such a solicitation can be deemed to be invited or permitted by a
subscriber in light of the business relationship.[FN61]
Additionally, the legislative history indicates that the
TCPA does not intend to unduly interfere with ongoing business relationships; [FN62] barring autodialer
solicitations or requiring actual consent to prerecorded message calls where such relationships exist
could significantly impede communications between
businesses and their customers. Thus, we are not persuaded that the TCPA precludes the use of prerecorded messages to make solicitations to a party with
whom the telemarketer has an established business
relationship. In view of the support in the record for
the exemption and the legislative history, we conclude that the TCPA permits an exemption for established business relationship calls from the restriction
on artificial or prerecorded message calls to residences.[FN63] We *8771 decline to create more specific business relationship exemptions as requested
by several commenters, such as utility companies, in
favor of an exemption broad enough to encompass a
wide range of business relationships. Finally, consistent with our conclusions at para. 24 supra, we find
that a consumer's established business relationship
with one company may also extend to the company's
affiliates and subsidiaries.[FN64]

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690928 (F.C.C.)

**13 35. Many commenters concur with our tentative
conclusion that a business relationship should be defined broadly rather than narrowly (e.g., an exchange
of consideration), but that it cannot be formed solely
on the basis of a prior solicitation.[FN65] Based on the
record in this proceeding and the legislative intent to
address a broad range of business relationships in the
rules, we adopt our tentative conclusion.[FN66] Accordingly, the rules define “established business relationship” as a prior or existing relationship formed by
a voluntary two-way communication between the
caller and the called party, which relationship has not
been previously terminated by either party. The relationship may be formed with or without an exchange
of consideration on the basis of an inquiry, application, purchase or transaction by the residential telephone subscriber regarding products or services offered by the telemarketer.[FN67] A broad definition of
the business relationship can encompass a wide variety of business relationships (e.g., publishers with
subscribers, credit agreements) without eliminating
legitimate relationships not specifically mentioned in
the record. Accordingly, we reject proposals to define
a business relationship by reference to consideration
or to a period of time because such narrow definitions
may exclude legitimate categories of business relationships.
36. Debt Collection Calls. In the NPRM, we observed
that all debt *8772 collection circumstances involve a
prior or existing business relationship. In addition, we
tentatively concluded that debt collection calls are
exempt from the TCPA's prohibitions against prerecorded message calls because they are commercial
calls which do not convey an unsolicited advertisement and do not adversely affect residential subscriber rights.
37. Commenters generally support an exemption for
debt collection calls.[FN68] Commenters concur that
debt collection calls are exempt as calls to parties
with whom the caller has a prior or existing business
relationship, and further argue that debtors have
given prior express consent to such calls by incurring
a debt.[FN69] AFSA requests the Commission to explicitly exempt calls where terms of a credit agreement are not met. Moreover, AFSA argues that debt
collection calls should be exempted as commercial
calls not transmitting an unsolicited advertisement
and not adversely affecting privacy rights. A number

Page 10

of commenters urge the Commission to include language clarifying that calls made on behalf of a creditor or other entity attempting to collect a debt are
exempted. CSC opposes a debt collection exemption,
arguing that such an exemption would increase the
potential for harassment. Other commenters maintain
that prerecorded message calls are the least intrusive
means of debt collection, and that elimination of this
option could lead to higher transaction and loan servicing costs.[FN70]
38. Many commenters request clarification of the
identification requirements for artificial or prerecorded voice messages because these requirements
appear to conflict with the requirements of the
FDCPA. The FDCPA prohibits debt collection agents
from revealing the identity of the creditor or the purpose of the call to third parties, and that a debt collector determine that the called party is the debtor before
revealing the purpose of the call.[FN71] If the call is
delivered using an artificial or prerecorded voice
message, the message must be fashioned so that the
purpose of the call is not revealed to a third party.
The TCPA, on the other hand, requires prerecorded
messages to identify the individual, business, or other
entity placing the call at the beginning of the message. Some commenters urge the Commission to
provide *8773 specific language for use in prerecorded messages. Other commenters simply urge the
Commission not to adopt requirements which would
conflict with the requirements of the FDCPA. The
ABA suggests that the Commission adopt language
to the effect that no requirements under § 227(d)(3)
of the TCPA be deemed to preempt the requirement
of other federal or state laws.
**14 39. Upon consideration of these comments, we
conclude that an express exemption from the TCPA's
prohibitions for debt collection calls is unnecessary
because such calls are adequately covered by exemptions we are adopting here for commercial calls
which do not transmit an unsolicited advertisement
and for established business relationships. As proposed in the NPRM, these exemptions would also
apply where a third party places a debt collection call
on behalf of the company holding the debt. Whether
the call is placed by or on behalf of the creditor, prerecorded debt collection calls would be exempt from
the prohibitions on such calls to residences as: (1)
calls from a party with whom the consumer has an
established business relationship, and (2) commercial

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71 Rad. Reg. 2d (P & F) 445, 7 F.C.C.R. 8752, 7 FCC Rcd. 8752, 1992 WL
690928 (F.C.C.)

calls which do not adversely affect privacy rights and
which do not transmit an unsolicited advertisement.[FN72] With respect to concerns regarding compliance with both the FDCPA and our rules in prerecorded message calls, we emphasize that the identification requirements will not apply to debt collection
calls because such calls are not autodialer calls (i.e.,
dialed using a random or sequential number generator) and hence are not subject to the identification
requirements for prerecorded messages in
64.1200(e)(4) of our rules.[FN73] Accordingly, we reject as unnecessary proposals that we provide specific
language for use in prerecorded debt collection messages. In any event, to the extent any conflicts exist,
compliance with both statutes is possible through the
use of live calls.
40. Tax–Exempt Nonprofit Organizations and Non–
Commercial Calls. In the NPRM, we sought comment on whether tax-exempt nonprofit organizations
should be exempt from the TCPA's prohibitions on
prerecorded message calls to residences either because such calls are not made for commercial purposes, or because they are commercial calls which do
not adversely affect privacy interests and which do
not transmit an unsolicited advertisement. See §
64.1200(a)(2). We observed that the TCPA seeks
primarily to protect subscribers from unrestricted
commercial telemarketing activities. Commenters
generally support the proposed exemption. However,
a number of commenters object to such exemptions
for calls from nonprofit organizations, arguing that
such calls are also a nuisance and an invasion of privacy.[FN74] The legislative history of the TCPA contrasts calls made by tax-exempt nonprofit organizations with commercial calls and indicates that commercial calls have by far produced the greatest number of complaints *8774 about unwanted calls.[FN75]
Moreover, no evidence has been presented in this
proceeding to show that non-commercial calls represent as serious a concern for telephone subscribers as
unsolicited commercial calls. Accordingly, based on
the comments and the legislative history of TCPA,
we conclude that tax-exempt nonprofit organizations
should be exempt from the prohibition on prerecorded message calls to residences as noncommercial calls. Therefore, we will not seek additional authority to curb calls by tax-exempt nonprofit
organizations.
**15 41. Some commenters urge the Commission to

Page 11

expressly exempt specific categories of additional
organizations such as market research or polling organizations, whose activities are not invasive of residential privacy rights and were not intended to be
prohibited by the TCPA.[FN76] We find that the exemption for non-commercial calls from the prohibition on prerecorded messages to residences includes
calls conducting research, market surveys, political
polling or similar activities which do not involve solicitation as defined by our rules.[FN77] We thus reject
as unnecessary the proposal to create specific exemptions for such activities.
4. Clarifications.
42. Elderly Home. The TCPA prohibits autodialer
and prerecorded message calls to “elderly homes”
absent prior express consent or unless it is an emergency call. AFSA requests clarification of the term,
as it appears in § 227(b)(1)(A)(ii) and in the proposed
rules, § 64.1200(a)(1)(ii), noting that the term is sufficiently ambiguous to include the private homes of
elderly telephone subscribers as well as health care
establishments. Since the TCPA does not define the
term, we must apply the plain meaning of the words
in interpreting the statute. This term clearly refers to
a residential setting for the elderly, but also suggests
the vernacular for institutions like nursing homes and
other long term health care facilities. Its placement in
a section which refers to other health care facilities
rather than in the following section regarding calls to
residential telephone subscribers also suggests that
the words are meant to describe an institutional setting in which the elderly reside, as opposed to any
reference to the private homes of the elderly. Given
the placement of this term in the statute and the lack
of evidence in the legislative history suggesting any
contrary meaning, we conclude that the words “elderly home” do not refer to the private homes of the
elderly, and that the words are intended to include in
the general prohibition against autodialer and *8775
artificial or prerecorded voice messages calls made to
health care facilities and those institutions which
house primarily elderly persons.
43. Radio Common Carriers. The TCPA prohibits
autodialer and prerecorded message calls to radio
common carrier services or any service for which the
called party is charged for the call. § 227(b)(1)(iii).
The Cellular Telecommunications Industry Association (CTIA) and Centel Corporation urge the Commission to exempt from the prohibitions on autodial-

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690928 (F.C.C.)

ers and prerecorded messages those calls made by
cellular carriers to cellular subscribers (as part of the
subscriber's service) for which the called party is not
charged. These commenters point out that cellular
customers are not charged for calls which, for example, monitor service or issue warnings to “roamers”
that they are moving out of the carrier's service area.
Therefore, such calls should either be exempted from
the prohibitions of § 64.1200(a)(1)(iii), or should be
interpreted as not intended to be prohibited by Congress.
**16 44. In addition, West Marketing Services
(West), a market research firm, states that it licenses
a program, CelShare, which places calls to cellular
phones to measure a cellular carrier's share of a given
cellular market. The CelShare program monitors cellular telephone company messages to determine
whether a random sample of telephone numbers is
active or inactive. To avoid actually reaching a cellular customer, calling devices are normally used in the
middle of the night, are set to two rings, and immediately disconnect if a cellular customer answers the
call. West states that three live connections are made
for every 1,000 calls. Since the primary function of
its program is market research, and since no telemarketing is involved, West urges the Commission to
allow its program to operate under the proposed
rules. West notes that several states have specifically
exempted its program from the definition of prohibited autodialer calls.
45. Based on the plain language of § 227(b)(1)(iii),
we conclude that the TCPA did not intend to prohibit
autodialer or prerecorded message calls to cellular
customers for which the called party is not charged.
Moreover, neither TCPA nor the legislative history
indicates that Congress intended to impede communications between radio common carriers and their
customers regarding the delivery of customer services by barring calls to cellular subscribers for
which the subscriber is not called. Accordingly, cellular carriers need not obtain additional consent from
their cellular subscribers prior to initiating autodialer
and artificial and prerecorded message calls for
which the cellular subscriber is not charged. However, the market research calls to cellular carriers, as
conducted by the West CelShare program, are clearly
prohibited absent the prior express consent of the
cellular customer called. While West appears to take
pains to avoid calls which will result in charges to

Page 12

cellular subscribers, the fact that its market research
calls result in such charges and are made without
prior consent from the subscribers places its service
under the prohibitions of the TCPA and the rues.[FN78]
*8776 46. Voice Messaging Services. Several commenters request clarification that services which store
and forward messages for later delivery to the called
party are not intended to be prohibited by the TCPA
or by the proposed rules.[FN79] In urging the Commission to create a specific exemption for such services,
the commenters point to numerous statements in the
legislative history in which members of Congress
expressed an expectation that such services would be
exempted from the prohibitions of the TCPA.[FN80]
Bell Atlantic asserts that the intent of Congress was
to restrict unsolicited advertising, not communications services which store and transmit individual
customer messages. MessagePhone concurs and references the Modified Final Judgment,[FN81] which,
inter alia, permits the regional Bell Operating Companies to engage in such services, and lends support
for such an exemption. Commenters contend that the
Commission has already found such services to be in
the public interest, citing a recent Commission decision granting a waiver to permit the delivery of Coin
Message Delivery Services,[FN82] which has been recently deployed by Bell Atlantic. Ameritech urges
the Commission to clarify whether the prerecorded
message identification requirement applies to the
local operating company or the person leaving the
message, or both, for messages recorded using services like the Public Telephone Message Delivery
Service (PTMDS). Ameritech contends that if the
person leaving the message identifies himself or herself, then further identifying information (such as a
telephone number or address) is unnecessary.
**17 47. The TCPA did not carve out a specific exemption for voice messaging services. However, the
services referred to by the commenters would appear
to fall either outside the TCPA's prohibitions or under
an exemption. The prohibitions of § 227(b)(1) clearly
do not apply to functions like “speed dialing,” “call
forwarding,” or public telephone delayed message
services (PTDMS), because the numbers called are
not generated in a random or sequential fashion.[FN83]
Voice messaging services used to send personal prerecorded voice *8777 messages are not subject to the
identification requirements of 227(d)(3) and §
64.1200(d) of our rules because such calls do not use

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71 Rad. Reg. 2d (P & F) 445, 7 F.C.C.R. 8752, 7 FCC Rcd. 8752, 1992 WL
690928 (F.C.C.)

autodialers to transmit prerecorded messages. Moreover, under the rules adopted here, artificial and prerecorded message calls to residences are exempt from
the TCPA's prohibitions in an emergency, where the
caller received prior express consent, or if the call is
exempted by the Commission as either a noncommercial call or a commercial call which does not
include an unsolicited advertisement and does not
adversely affect the called party's privacy interests.
Thus, Automated Alternate Billing Systems (AABS),
used by common carriers to perform operator services with artificial or prerecorded voice prompts, are
exempt from the prohibition against artificial or prerecorded voice calls to residences to the extent they
are non-commercial calls. However, voice message
calls, as prerecorded messages, would be subject to
the prohibitions of § 227(b)(1) and § 64.1200(a) of
our rules. Thus, voice message calls could not be
directed to an emergency line, a health care facility,
radio common carrier services or other services for
which the called party is charged for the call except
in an emergency or with the prior express consent of
the called party.
48. In light of the foregoing, we believe that the prohibitions set forth in the rules are not a barrier to the
continued use and expansion of voice messaging service, and that the rules adopted here will be effective
in preventing any potential abuse by telemarketers.
See §§ 64.1200(a)–(d). Accordingly, a specific voice
messaging exemption is not necessary to permit the
present and future voice messaging services.
49. Public Utilities. Many public utilities note that
they communicate with their customers through prerecorded message calls and automatic telephone dialing systems to notify customers of service outages, to
warn customers of discontinuance of service, and to
read meters for billing purposes. They note that under
normal circumstances, customers can continue using
their telephones normally as the meter information is
being gathered and forwarded to a central office. The
utilities urge the Commission to exempt such calls
from the autodialer prohibitions, either under the existing business relationship exemption or under the
“emergency” exemption for calls related to public
health and safety because information about service
outages and about possible discontinuance of service
affect public health and safety. Moreover, many public utilities state that they have a third party notification service for their customers, in which the utility

Page 13

agrees to contact a party designated by the customer
in the event that a delinquent bill or a service outage
threatens interruption of that customer's service. This
program is designed to assist persons who have difficulty maintaining their accounts or who otherwise
desire assistance in ensuring that service is not interrupted. However, several commenters express concern that a broad emergency exception could be a
vehicle for campaigns targeted at the elderly, who in
the past have been subjected to telemarketing calls
involving vitamins, security systems, or other items
purported to be important to the “health and safety”
of the called party.
**18 *8778 50. BellSouth concurs with the public
utilities and contends that the legislative history [FN84]
indicates an intent to permit autodialed calls for the
purpose of notifying customers of potential power
outages, maintenance, or termination. In some jurisdictions, BellSouth is required by tariff to notify customers before disconnecting service. BellSouth requests the Commission to exempt from the prohibitions of § 64.1200(a)(1) autodialed calls regarding
the installation, maintenance, or termination of telephone service in emergency situations. Further,
Ameritech contends that the use of Automatic Meter
Reading Systems by utility companies clearly satisfies the TCPA's requirements regarding prior express
consent, and that such services were not intended by
Congress to be prohibited.
51. Each of the circumstances described by the utilities is included within either the broad exemption for
emergency calls, or the exemption for calls to which
the called party has given prior express consent. Service outages and interruptions in the supply of water,
gas or electricity could in many instances pose significant risks to public health and safety, and the use
of prerecorded message calls could speed the dissemination of information regarding service interruptions or other potentially hazardous conditions to the
public. Similarly, public utilities providing a third
party notification service do not violate the prohibition against prerecorded calls to residences where the
third party has given his or her prior express consent
to the notification or the call relates to a public health
and safety matter. In light of the comprehensive nature of the current exemptions, a specific exemption
for public utilities to the general prohibition against
autodialers and artificial or prerecorded voice message calls is not required.[FN85]

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D. Technical and Procedural Standards
1. Line Seizure—5 Second Hang-up Requirement.
52. The TCPA requires, and the rules we adopt provide, that automatic telephone dialing systems used
to transmit artificial or prerecorded messages shall
automatically release the called party's line within 5
seconds of the time that the calling party's system is
notified of the called party's hang-up. The ACA requests clarification of this requirement in order to
ensure proper compliance. For the purposes of this
rule section, the 5 second period begins when the
called party's hang-up signal reaches the dialing system of the caller. Commenters generally do not indicate that they anticipate problems in complying with
this requirement.[FN86]
*8779 2. Identification Requirements for Artificial or
Prerecorded Voice Systems.
53. The TCPA mandates that all artificial or prerecorded telephone messages delivered by an autodialer
state clearly the identity of the caller at the beginning
of the message and the caller's telephone number or
address during or after the message, § 227(d)(3)(A),
and we adopt this requirement in our rules,
64.1200(d). A number of commenters request that
prerecorded messages be required to state the identity
of the caller and the caller's telephone number (other
than that of any autodialing system used to place the
call) or address within 30 seconds after the message
begins, so that the called party would not have to
listen to the entire message before deciding whether
to hang up. We reject the proposal to require that a
telephone number or address be stated within 30 seconds of the beginning of an artificial or prerecorded
message, because the TCPA requires only that the
caller's identity be stated at the beginning of the message. See § 227(d)(3)(B). We have been presented
with no evidence to persuade us to request additional
authority to adopt such a restriction. Finally, as suggested by several commenters, we will require callers
leaving a telephone number to provide a number
other than that of the autodialer or prerecorded message player which placed the call because the autodialer or message player number may be in constant
use and not available to receive calls from the called
party. § 64.1200(e)(4).
**19 3. Facsimile Machines.
54. The TCPA requires that identifying information
be placed on all telephone facsimile transmissions,

Page 14

and that telephone facsimile machines be capable of
placing such information on all transmissions. §
227(d). The TCPA further prohibits the use of telephone facsimile machines to send unsolicited advertisements.[FN87] § 227(b)(1)(C). Parties commenting
on the facsimile *8780 requirements for senders of
facsimile messages urge the Commission to clarify
that carriers who simply provide transmission facilities that are used to transmit others' unsolicited facsimile advertisements may not be held liable for any
violations of § 64.1200(a)(3).[FN88] We concur with
these commenters. In the absence of “a high degree
of involvement or actual notice of an illegal use and
failure to take steps to prevent such transmissions,”
common carriers will not be held liable for the transmission of a prohibited facsimile message. Use of
Common Carriers, 2 FCCRcd 2819, 2820 (1987).
E. Enforcement
1. Private Right of Action.
55. The TCPA provides consumers with a private
right of action, if otherwise permitted by state law or
court rules, for any violation of the autodialer or prerecorded voice message prohibitions and for any violation of the guidelines for telephone solicitations. §
227(c)(5). Absent state law to the contrary, consumers may immediately file suit in state court if a caller
violates the TCPA's prohibitions on the use of automatic telephone dialing system and artificial or prerecorded voice messages. § 227(b)(3). A consumer may
also file suit in state court if he or she has received
more than one telephone call within any 12–month
period by or on behalf of the same company in violation of the guidelines for making telephone solicitations. § 227(c)(5). Telemarketers who have established and implemented reasonable practices and
procedures in compliance with the latter section may
present such compliance as an affirmative defense to
any action for violation of telephone solicitation
guidelines. § 227(c)(5). The TCPA also permits states
to initiate a civil action in federal district court
against a telemarketer who engages in a pattern or
practice of violations of the TCPA. §§ 227(f)(1) and
(2). States retain the power to initiate action in state
court for violations of state telemarketing statutes. §
227(f)(6). Finally, consumers may request that the
Commission take enforcement action regarding violations of § 227, consistent with the Commission's existing complaint procedures.[FN89]
2. State Law Preemption.

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56. The TCPA, in § 227(e), sets forth a standard for
preemption of state *8781 law on autodialing, artificial or prerecorded voice messages, and telephone
solicitations. The TCPA does not preempt state law
which imposes more restrictive intrastate requirements or regulations regarding: the use of facsimile
machines to send unsolicited advertisements; the use
of automatic telephone dialing systems; the use of
artificial or prerecorded voice messages; or the making of telephone solicitations. However, the TCPA
specifically preempts state law where it conflicts with
the technical and procedural requirements for identification of senders of telephone facsimile messages
or autodialed artificial or prerecorded voice messages. § 227(e).
**20 3. Other Matters
57. A number of commenters urge the Commission to
request additional authority from Congress to protect
consumer privacy interests, arguing that the NPRM
errs on the side of protecting commercial speech and
does not adequately protect telephone subscribers
from invasions of privacy by telemarketers. These
commenters point out that telephone subscribers must
receive at least one unwanted solicitation before making a claim under the rules. The National Consumers
League urges the Commission to withdraw the
NPRM and begin the rulemaking process anew, stating that the Commission failed to make specific proposals for meeting the requirements of the TCPA.
58. Based upon our actions here, we find that no further authority is required at the present time to accomplish the goals of the TCPA to restrict unwanted
telephone solicitations. The regulations implemented
satisfy the TCPA's requirements that residential subscribers be provided with a means to avoid unwanted
telephone solicitations, and that autodialers and prerecorded or artificial voice messages be used responsibly in ways that do not impede commerce or
threaten public health and safety. The record supports
our conclusion that the proposed rules strike a reasonable balance between privacy rights, public safety
interests, and commercial freedoms of speech and
trade, which Congress cited as its paramount concerns in enacting the TCPA.[FN90] Moreover, contrary
to the allegation of the National Consumers League,
the NPRM asked for comment on a variety of proposals for restricting telephone solicitations to residences and weighed their benefits, as directed by §
227(c) of the TCPA. Specific information on the

Page 15

various proposals was supplied in the comments and
our decision is based upon the record. Accordingly,
we find at this time that renewal of the rulemaking
process is not warranted and would unduly delay
implementation of consumer privacy protections.
59. However, we are concerned that consumers be
fully informed of their rights under the TCPA. In
addition to disseminating our own public notices, we
will work with consumer groups, industry associations, local telephone companies, and state agencies
to assure that the rules we adopt today are well publicized. We also will monitor closely any reports of
alleged violations of the TCPA or the rules that are
filed with the Commission to determine whether additional action is necessary to protect consumers from
unwanted solicitations. If our current approach is not
successful, a number of options are available. For
example, we could convene a cross-industry board or
*8782 advisory council to evaluate the complaints
received and recommend effective solutions. Both
Congress and the Commission have found telemarketing serves a valuable role in our economy, and it is
appropriate for responsible telemarketers, who benefit from the activity, to devise solutions to problems.
Alternatively, based upon our experience with the
rules, it may be necessary to initiate a rulemaking
proceeding to establish more stringent restrictions, or
even to recommend to Congress that it increase penalties or make other statutory changes. Our objective
in this proceeding has been to hold telemarketers
accountable for their activities without undermining
the legitimate business efforts of telemarketing. Existing Commission procedures will permit us to continue to do so.
IV. CONCLUSION
**21 60. This rulemaking proceeding seeks to protect
consumers from automated calls which may pose a
threat to health and safety as well as from unwanted
solicitations. Section § 64.1200(a) prohibits calls
using autodialers or prerecorded messages to emergency lines, health care facilities, and calls to radio
common carriers or other numbers for which the
called party may be charged for the call. Prerecorded
message calls to residences are generally prohibited.
We have created specific exemptions to this prohibition where the record demonstrates that the calls do
not adversely affect the privacy interests of residential subscribers: non-commercial calls, commercial

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690928 (F.C.C.)

calls not transmitting an unsolicited advertisement,
calls from parties with whom a resident has an established business relationship, and calls from taxexempt nonprofit organizations. Finally, residential
subscribers will be protected from unwanted telephone solicitations by the requirement that telemarketers maintain do-not-call lists for any telephone
solicitations.
V. PROCEDURAL MATTERS
61. Final Regulatory Analysis: Pursuant to the Regulatory Flexibility Act of 1980, 5 U.S.C. Section 601,
et seq., the Commission's final analysis in this Report
and Order is as follows:
I. Need and purpose of this action:
This Report and Order amends Part 64 of the Commission's rules by adding § 64.1200 to restrict the use
of automatic telephone dialing systems and artificial
or prerecorded voice messages for telemarketing purposes or for transmitting unsolicited telephone facsimile advertisements. The rules require that persons
or entities making telephone solicitations establish
procedures to protect residential subscribers from
unwanted solicitations, and set forth exemptions to
certain prohibitions under this Part. The Report and
Order also amends Part 68 of the rules by revising §
68.318(c)(2) and adding § 68.318(c)(3) to require that
automatic telephone dialing systems delivering a recorded message release the called party's line within
5 seconds of *8783 notification of hang-up by the
called party, and to require that telephone facsimile
machines manufactured on and after December 20,
1992 must clearly identify the sender of a facsimile
message. The amendments implement the Telephone
Consumer Protection Act of 1991, which, inter alia,
adds Section 227 to the Communications Act of
1934, as amended, 47 U.S.C. Section 227. The rules
are intended to impose reasonable restrictions on
autodialed or prerecorded voice telephone calls consistent with considerations regarding public health
and safety and commercial speech and trade, and to
allow consumers to avoid unwanted telephone solicitations without unduly limiting legitimate telemarketing practices.
II. Summary of issues raised by the public comments
in response to the Initial Regulatory Flexibility
Analysis:

Page 16

No comments were submitted in direct response to
the Initial Regulatory Flexibility Analysis.
III. Significant alternatives considered:
**22 The NPRM in this proceeding requested comments on proposed regulations implementing the
TCPA and comments on several proposals restricting
telephone solicitations to residential telephone subscribers. The Commission has considered all comments and has adopted regulations to implement the
prohibitions and technical requirements mandated by
the TCPA as well as regulations which allow consumers to avoid unwanted telephone solicitations
through placement on company-specific do-not-call
lists. The Commission considers its Report and Order
to be the most reasonable course of action under the
mandate of Section 227 of the Communications Act,
as amended.
VI. ORDERING CLAUSES
62. Accordingly, It Is Ordered, that, pursuant to authority contained in Sections 1, 4(i), 4(j), 201–205,
218, and 227 of the Communications Act of 1934, as
amended, 47 U.S.C. §§ 151, 154(i), 154(j), 201–205,
218 and 227, Parts 64 and 68 of the Commission's
Rules and Regulations ARE AMENDED as set forth
in Appendix B hereof, effective December 20, 1992.
*8784 63. It Is Further Ordered, that, the Secretary
shall cause a summary of this Report and Order to be
published in the Federal Register which shall include
a statement describing how members of the public
may obtain the complete text of this Commission
decision. The Secretary shall also provide a copy of
this Report and Order to each state utility commission.
64. It Is Further Ordered, that, this proceeding IS
TERMINATED.
FEDERAL COMMUNICATIONS COMMISSION
Donna R. Searcy
Secretary
FN1. The President signed the bill into law because it
gives the Commission “ample authority to preserve
legitimate business practices.” Statement by the

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Page 17

President upon signing the TCPA into law, December
20, 1991.

prohibitions on prerecorded voice message calls to
businesses are necessary at this time.

FN2. See Notice of Proposed Rulemaking in CC
Docket No. 92–90, 7 FCCRcd 2736 (1992). The
Commission designates Subpart L of Part 64 of its
rules as the appropriate location for most of the rules
implementing the TCPA. Additional rules implementing the TCPA which address certain requirements for terminal equipment are located in Part 68
of the Commission's rules. The full text of the TCPA
is included as an appendix to the NPRM. The rules
adopted in this order appear in Appendix B.

FN8. See, e.g., comments of American Telephone
and Telegraph (AT & T).

FN3. In addition to comments filed by the parties
listed in Appendix A, we received numerous letters
and other informal comments in response to the
NPRM. We have considered each of these additional
comments in adopting this Report and Order.
FN4. In this order, the term “telemarketer” refers to
any person or entity making a telephone solicitation
(regardless of the precise means used to place or
complete such a call).
FN5. See Appendix B.
FN6. All terms except “established business relationship” are defined in the TCPA (see § 227(a)); we
have incorporated those statutory definitions in our
rules.
FN7. 47 U.S.C. § 227(c). The TCPA also requires the
Commission to consider whether specific regulations
should be adopted regulating artificial or prerecorded
voice calls to businesses. § 227(b)(2)(A). Concerns
regarding telemarketer intrusions upon commerce are
largely addressed in the rules, which prohibit autodialed and artificial or prerecorded message calls
where the called party would incur costs for such
calls, such calls would likely affect public health and
safety, or where such calls would tie up two or more
lines of a business simultaneously. See 47 C.F.R. §§
64.1200(a)(1), (a)(4), and (b). Commenters express
concern that prerecorded message calls will affect
public health and safety and impede commerce. Most
commenters, however, do not raise privacy concerns
with respect to prerecorded calls to businesses. Based
on the record and on the scope of the prohibitions on
autodialers and prerecorded messages in the rules we
adopt today, we are not persuaded that additional

FN9. See, e.g., comments of Center for the Study of
Commercialism (CSC) and National Consumers
League (NCL). Commenters point to statements in
reports on earlier versions of the TCPA noting that
technology which permits a greater volume of solicitations with less personnel has led to an increasing
number of consumer complaints and has prompted at
least 40 states to enact restrictions on the use of autodialers, prerecorded message players, and unwanted
solicitations. As examples of the source of consumer
complaints, the reports note that callers making solicitations often fail to identify themselves, and that
autodialers and prerecorded messages do not release
a line after hangup. See Senate Report 102–177, 102d
Cong., 1st Sess. (1991), p. 2; Senate Report 102–178
102d Cong, 1st Sess. (1991), pp. 2–3.
FN10. Lejeune Associates of Florida (Lejeune) notes
that Florida receives 300–500 complaints per month
under its telephone solicitation statute. The Ohio
Public Utilities Commission (OPUC) receives an
average of 100 telephone solicitation complaints per
month. The Direct Marketing Association (DMA)
notes that 400,000 consumers have asked to be included in its Telephone Preference Service, which
functions as a do-not-call list for the telemarketing
industry.
FN11. See Senate Report 102–177, 1st Sess., pp. 1–3
(1991); House Report 102–317, 1st Sess., pp. 8–10.
FN12. Autodialer and prerecorded message calls are
subject to a stricter standard, as discussed in paras.
27–51, infra.
FN13. See, e.g., comments of AT & T.
FN14. See, e.g., comments of Securities Industry
Association (SIA).
FN15. See, e.g., comments of National Retail Federation (NRF).
FN16. See, e.g., comments of Pacific Bell, Nevada

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Page 18

Bell (Pacific Bell).
FN17. See, e.g., comments of SafeCard Services, Inc.
(Safecard); and Sprint.
FN18. See, e.g., comments of AT & T.
FN19. See, e.g., comments of Sprint.

FN26. See, e.g., comments of AMEX and Olan Mills.
Moreover, based upon the comments, we are not persuaded that the current state of technology would
permit the rapid and cost-efficient utilization of LIDB
to function as a national do-not-call database. See,
e.g., comments of ITN, Pacific Bell, Southern New
England Telephone (SNET), SWBT, and Sprint.

FN20. See, e.g., comments of DMA.

FN27. See, e.g., comments of AT & T, Lejeune Associates, and Sprint.

FN21. See, e.g., comments of Consumer Bankers
Association (CBA).

FN28. See, e.g., comments of SNET, Sprint.

FN22. See, e.g., comments of J.C. Penney. Southwestern Bell Telephone (SWBT) notes that laws in
each of the states it serves prohibit SWBT from
breaching the confidentiality of subscribers having
unpublished or unlisted numbers.

FN29. See, e.g., comments of SIA.
FN30. See, e.g., comments of Bell Atlantic; BellSouth; Pacific Bell; and SNET.
FN31. See, e.g., comments of CSC, GTE.

FN23. We note that the TCPA prohibits any alternative which calls for any charge for participation to
residential subscribers. § 227(c)(2). The Florida database, for example, charges subscribers for their participation in the database. Nynex Telephone Companies (Nynex) states that although New England Telephone has spent more that $1 million to implement a
statewide do-not-call database in Massachusetts, only
nine telemarketers have purchased the $300 do-notcall list. Nynex further notes that Massachusetts allows New England Telephone to recover costs of its
state do-not-call database from the subscriber rate
base.
FN24. Commenters largely support the Commission's
tentative conclusion in the NPRM that a national database should neither receive federal funds nor a federal contract for its establishment, operation, or maintenance. NCL objects to the finding, arguing that the
failure of self-regulation, along with the TCPA, require strict federal regulatory oversight of telemarketing practices. In light of the action taken in the TCPA
and in our rules to restrict the most abusive telemarketing practices, and in the absence of more persuasive evidence to support federal expenditures to further restrict such practiceS, we find that it is not in
the public interest to pass on to taxpayers the costs of
a national database system.

FN32. See, e.g., comments of J.C Penney, North
American Telecommunications Association (NATA)
and SafeCard. Nynex states that inserting an asterisk
to mark do-not-call preferences in its directories
would cost its publishing division $100,000, in addition to $300,000 for an additional 400 tons of paper
and $125,000 in printing costs. Nynex's experiment
in using an asterisk to mark customer preferences
received complaints that marks confused readers.
BellSouth provided special directory markings in its
state of Florida directory from October 1, 1987 to
October 1, 1990. In its comments, BellSouth states
that the service proved to be largely ineffective in
reducing unwanted solicitations and was withdrawn.
See comments of BellSouth at 9, n. 13.
FN33. See, e.g. comments of BellSouth and Consumer Action.
FN34. See, e.g., comments of National Telephone
Cooperative Association (NTCA) and Pacific Bell.
FN35. See, e.g., comments of Citicorp; Olan Mills;
Sprint; and SWBT.
FN36. See, e.g., comments of CUC International,
Olan Mills, Pacific Bell.

FN25. See, e.g., comments of Citicorp, Sprint.

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FN37. See, e.g., comments of Ameritech Operating
Companies (Ameritech) and Cox Enterprises, Inc.
(Cox).
FN38. See, e.g., comments of American Telemarketing Association (ATA), Citicorp.

Page 19

FN45. We emphasize that § 227(c)(2) prohibits the
imposition of any charge on residential subscribers
from procedures to protect them from unwanted solicitations.
FN46. See, e.g., comments of DMA.

FN39. See, e.g., comments of Citicorp; DMA; reply
comments of AMEX and Ameritech.
FN40. See, e.g., comments of AMEX, Citicorp.
FN41. See, e.g., comments of Ameritech, Citicorp.
FN42. CSC cites House Report 102–317 at 19–20,
finding the existing DMA list to be unsatisfactory
because it is “not comprehensive in nature.” See also
comments of Consumer Action, Lejeune, and U.S.
West.
FN43. “With respect to both company-specific and
industry-wide databases, the Commission should
consider whether making such practices mandatory,
and imposing substantial sanctions for violations
would increase their effectiveness to the point that
they could satisfy the statutory requirements of this
Act.” House Report 102–317, 102d Cong., 1st Sess.
(1991) at 20.
FN44. Several commenters oppose the implementation of mandatory industry-based lists, arguing that
this alternative raises the same problems of cost, confidentiality, and obsolescence as a national database.
See, e.g., comments of Bell Atlantic and CUC International. Industry-based do-not-call lists may be appropriate for smaller telemarketers who find it more
economical or efficient to maintain do-not-call lists in
cooperation with other telemarketers in the same region or industry. See, e.g., comments of Time Warner, Inc. (TWI). Therefore, our decision to choose the
company-specific do-not-call list alternative does not
preclude telemarketers from voluntarily maintaining
an industry-based do-not-call list as long as that
method comports with the rules set forth in §
64.1200(e) for maintaining do-not-call lists. We emphasize that, regardless of the method chosen, the
person or entity making a telephone solicitation, or
on whose behalf a telephone solicitation is made, will
ultimately be held responsible for compliance with
our rules. See para. 24, infra.

FN47. Tax-exempt nonprofit organizations are not
subject to this requirement because the TCPA excludes such organizations from the definition of
“telephone solicitation.” See § 227(a)(3). Therefore,
tax-exempt nonprofit organizations need not maintain
do-not-call lists.
The definition of “telephone solicitation” in §
227(a)(3) also excludes calls made to parties
with whom the caller has an established business
relationship and calls for which the calling party
has received the called party's prior express invitation or permission. We emphasize, however,
that subscribers may sever any business relationship, i.e., revoke consent to any future solicitations, by requesting that they not receive further
calls from a telemarketer, thus subjecting that
telemarketer to the requirements of § 64.1200(e).
FN48. See n. 44, supra. The TCPA enforcement
mechanisms are discussed in paras. 55–56, infra.
FN49. See House Report 102–317, 102d Cong., 1st
Sess., pp. 13–17 (1991).
FN50. The Newspaper Association of America suggests that alternative methods and procedures should
be permitted for second class mail permit holders if
the national database alternative is mandated, but
states that separate treatment would not be necessary
under the company-specific do-not-call list option. In
light of our selection of the company-specific do-notcall list as the preferred alternative for limiting unwanted telephone solicitations, we do not believe that
separate methods and procedures are required for
small businesses, independent contractors, or holders
of second class mail permits. We conclude that the
benefits of company-specific do-not-call lists are the
same, e.g. cost, efficiency, and effectiveness, for
small entities and for holders of second class mail
permits as they are for larger enterprises, and therefore these entities will be subject to the same requirements under our rules.

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FN51. See, e.g., comments of Ameritech; CBA; and
NATA.
FN52. See, e.g., comments of Bell Atlantic.
FN53. See, e.g., comments of American Collectors
Association (ACA). The FDCPA prohibits calls before the hour of 8 AM and after 9 PM, local time at
the called party's location. 15 U.S.C. § 1692c(1). See
also paras. 36–39 infra.
FN54. See, e.g., comments of American Bankers
Association (ABA).
FN55. See, e.g., comments of BellSouth.
FN56. See, e.g., comments of Citicorp and J.C. Penney.
FN57. See House Report, 102–317, 1st Sess., 102nd
Cong. (1991), at p. 13, which supports this interpretation, noting that in such instances “the called party
has in essence requested the contact by providing the
caller with their telephone number for use in normal
business communications.”

Page 20

by persons or entities affiliated with businesses which
have an established business relationship with the
consumer would be permissible in certain circumstances, but that companies should honor requests not
to call again notwithstanding any business relationship with the consumer.
FN65. See, e.g., comments of AMEX, TWI.
FN66. See, e.g., House Report 102–317, 102d Cong.,
1st Session (1991), pp. 13–17.
FN67. As we noted in para. 31, supra, a party making
an inquiry cannot be considered to have given prior
express consent to future autodialed or prerecorded
message calls simply because that party's number has
been “captured” by an ANI device or similar system.
Nor can a consumer inquiry be considered to create a
business relationship where the consumer's number
has been captured absent that consumer's express
invitation or permission to be contacted at the captured number.
FN68. See comments of ABA; American Financial
Services Association (AFSA); the Coalition; Citicorp; CBA; Gannett; Household International; National Retail Federation; Teknekron; and Wells
Fargo.

FN58. See, e.g., comments of OPUC.
FN59. See, e.g., comments of ACA and AMEX.

FN69. See comment of ACA; AFSA; Ameritech;
Citicorp; CBA; Household International; Ohio Student Loan Commission; and Wells Fargo.

FN60. See, e.g., comments of ABA and ACA.
FN61. See, e.g., comments of InterVoice.
FN62. See House Report, 102–317, 102d Cong., 1st
Session (1991), p. 13.
FN63. We emphasize, however, that a business may
not make telephone solicitations to an existing or
former customer who has asked to be placed on that
company's do-not-call list. A customer's request to be
placed on the company's do-not-call list terminates
the business relationship between the company and
that customer for the purpose of any future solicitation. See n. 47, supra.
FN64. See House Report, 102–317, 102d Cong., 1st
Session (1991), pp. 13–17, noting that solicitations

FN70. See comments of the Coalition; CBA; Digital
Systems International; and the National Retail Federation.
FN71. Debt collectors subject to the FDCPA are prohibited from conveying any information to third parties, even inadvertently, with respect to the existence
of a debt. 15 U.S.C. § 1629b–c. The FDCPA requires
a collector initiating a call answered by a third party
to identify himself by name but not to disclose the
name of his employer unless asked. 15 U.S.C. §
1629b(1). See comments of ACA.
FN72. A creditor may solicit a residential subscriber
using a prerecorded message as long the established
business relationship has not been previously severed
by the debtor. This interpretation reflects the legisla-

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Page 21

tive intent expressed in House Report, 102–317, 102d
Cong., 1st Session (1991), pp. 14–17.

FN82. See Bell Atlantic Order, 6 FCCRcd at 3400,
3401 (Com.Car.Bur.1991).

FN73. See comments of ABA, ACA. See also paras.
25–26 supra.

FN83. We emphasize that where such services are
used for the purpose of telephone solicitation in violation of our rules and the TCPA, the users of the
services, not the carriers providing the services,
would be held liable, consistent with Congress' policy
that carriers not be held responsible for the content of
messages transmitted through the network. See
statement of Senator Hollings, Congressional Record,
S 18785 (November 27, 1991). Of course, carriers
initiating telephone solicitations on their own behalf
using such service would be subject to our rules and
the TCPA.

FN74. See, e.g., comments of NCL and OPUC.
FN75. See, House Report 102–317 at 16–17 stating
that “most unwanted telephone solicitations are
commercial in nature” and that “the two main sources
of consumer problems—high volume of solicitations
and unexpected solicitations—are not present in solicitations by nonprofit organizations.” See also, Senate Report 102–177 at 6, to accompany Bill S. 1410.
102d Cong., (1991).
FN76. See comments of Congressman Brewster and
Public Forum.
FN77. See para. 45, infra., emphasizing that market
research or surveys would be prohibited under § 227
of the TCPA and § 64.1200(a)(1) if the called party
were charged for the call without the party's prior
express consent or if such calls contain unsolicited
advertisements.
FN78. A few commenters note that the NPRM omitted from the proposed rules the phrase “or other radio
common carrier service,” as it appears in §
227(b)(1)(A)(iii) of the TCPA. This language was
indeed inadvertently omitted from the text of the proposed rule, and has been included in §
64.1200(a)(1)(iii) to mirror the language of the
TCPA. See Appendix B.
FN79. See comments of Ameritech and MessagePhone.
FN80. See comments of Ameritech and reply comments of Ameritech at 4, n. 9.
FN81. See United States v. American Tel. and Tel.
Co., 552 F.Supp. 226 (D.D.C.1982), aff'd mem. sub
nom.Maryland v. United States, 460 U.S. 1001
(1983), modifiedUnited States v. Western Elec. Co.,
673 F.Supp. 525 (D.D.C.1987), 714 F.Supp. 1
(D.D.C.1988), affirmed in part and reversed in
part900 F.2d 283 (D.C.Cir.1990).

FN84. Congressional Record, H 11310 (November
26, 1991).
FN85. We emphasize that telephone solicitations as
defined in our rules can never be classified as “emergencies.” See § 64.1200(b).
FN86. Commenters point out that the proposed rules,
in the prohibition against line seizure, § 68.318, refer
to “automatic dialing devices,” a term not employed
elsewhere in the rules or the TCPA. Reading § 227(d)
as a whole, it is clear that the requirement refers only
to automatic telephone dialing systems. The title and
language of that section will thus be revised to read
“automatic telephone dialing systems.”
FN87. Mr. Fax and National Faxlist urged the Commission not to impose a ban on unsolicited telephone
facsimile advertisements; National Faxlist suggested
that a telephone facsimile do-not-call list be created
in lieu of a complete prohibition on such unsolicited
advertisements. GTE requested clarification that the
identification requirement does not apply to each
page of messages transmitted through imaging systems.
In banning telephone facsimile advertisements,
the TCPA leaves the Commission without discretion to create exemptions from or limit the effects of the prohibition (see § 227(b)(1)(C));
thus, such transmissions are banned in our rules
as they are in the TCPA. § 64.1200(a)(3). We
note, however, that facsimile transmission from
persons or entities who have an established business relationship with the recipient can be
deemed to be invited or permitted by the recipi-

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ent. See para. 34, supra. Furthermore, the term
“telephone facsimile machine” as defined in the
TCPA and identically in our rules, § 64.1200(f)
clearly includes imaging systems. The rules state
that the first page or each page of a transmission
to a facsimile machine must include identifying
information.
FN88. See comments of SNET, Sprint, and reply
comments of AT & T.
FN89. Pacific Bell asserts that complaint proceedings
brought under § 208 of the Communications Act, 47
U.S.C. § 208, and based on violations of § 227 of the
Act, 47 U.S.C. § 227, could only be instituted against
common carriers. Pacific Bell is correct with respect
to complaints filed under Section 208 of the Act. In
addition to the private right of action noted above,
aggrieved persons or entities may report violations of
the TCPA to the Commission and request action on
such violations through the informal procedures set
forth in Section 1.41 of the rules, 47 C.F.R. § 1.41.
See, e.g., 47 U.S.C. §§ 312 and 503(b).
FN90. See Section 2 of the TCPA.
*8785 APPENDIX A
**23 Parties Filing Comments

Page 22

American Newspaper Publishers Association a (Reply
Comments by Newspaper Association of America)
American Resort Development Association
American Service Telemark
American Telemarketing Association, Inc. (ATA)
Ameritech Operating Companies a (Ameritech)
Amway
Ann Arbor News
Annenberg School for Communications
Argus Leader
Arizona Republic/Phoenix Gazette
Association of National Advertisers, Inc.
Asheville Citizen–Times
American Telephone and Telegraph Company a (AT
& T)
Audio Technica

Aberdeen American News

Avon

Alpha Information

Baltimore Gas and Electric Company

Altoona Mirror
American Bankers Association (ABA)
American Civil Liberties Union
American Collectors Association [FNa] (ACA)
American Council of Life Insurance and the National
Association of Life Underwriters
a

Baltimore Sun
Banc One Corporation, California Bankers Clearing
House Association, First USA Bank, New York
Clearing House Association, QVC Network, VISA
U.S.A., Inc.a (the Coalition)
Bell Atlantic
BellSouth a

American Express Company (AMEX)
American Financial Services Association a (AFSA)

Bellingham Herald
Bellville News–Democrat

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71 Rad. Reg. 2d (P & F) 445, 7 F.C.C.R. 8752, 7 FCC Rcd. 8752, 1992 WL
690928 (F.C.C.)

Page 23

Blue Cross & Blue Shield

Contractors Clearing House

Brazosport Facts

Courier–Journal

Brewster, Congressman Bill J.[FNaa]

Cox Enterprises, Inc. (Cox)

Buchan MD, Janet H. and Robert R.C.

CUC International, Inc.

Bucks County Courier Times (Mark Gursky)

CUNA Mutual Insurance Group

Bucks County Courier Times (Arthur E. Mayhew)

Daily News, Bowling Green, KY (Pipes Gaines)

California Department of Justice

Daily News, Lebanon, PA (Blake L. Sanderson)

California Public Utilities Commission

Daily News, Los Angeles, CA (Kirk Felgenhauer)

Capital Newspapers

Daily News, Los Angeles, CA (Lynne Hanchett)

Cellular Telecommunications Industry Association

Daily News, Los Angeles, CA (Chuck Schussman)

Centel Corporation (Centel)

Detroit Newspaper Agency

Center for the Study of Commercialism a (CSC)

Digital Systems International, Inc.a

*8786 Centre Daily Times

Direct Marketing Association a (DMA)

Chico Enterprise–Record

Direct Selling Association

Citicorp a

Electronic Information Systems, Inc.

Clark County Rural Electric Cooperative

Firelands Rural Electric Cooperative, Inc.aa

CMS A/R Services

Florida Today/USA Today

Coalition of Higher Education Assistance Organizations

Forum
Franklinton Financial

ComCast Cellular aa
Free Press Standard
Community Benefits Corporation
Gadsden Times
Conservation Fund
Gannett Co., Inc.a
Consumer Action

a

Gazette Printing Company
Consumer Bankers Association (CBA)

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

71 Rad. Reg. 2d (P & F) 445, 7 F.C.C.R. 8752, 7 FCC Rcd. 8752, 1992 WL
690928 (F.C.C.)

Page 24

Gleaner

J. BLenkarn Systems

Goshen News

J.C. Penney Company, Inc.

**24 Grand Island Independent

Jersey Journal

Grand Rapids Press

Johnstown Tribune Publishing Company

Green Bay Press

Jones Intercable aa

GTE Service Corporation (GTE)

Journal and Courier

Guam Attorney General

Kalamazoo Gazette/Weekly Gazette, Hometown Gazette

Hartford Courant
Kauffman Group
Household International

a

King TeleServices
Huntsville Times
Knight Ridder, Inc.
Idaho State Journal
La Crosse Tribune
Illinois Student Assistance Commission
Lansing State Journal
Illinois, University of
LCS Direct Marketing Services
Indianapolis Star, Indianapolis News
Lee County Electric Cooperative, Inc.
a

Independent Telecommunications Network, Inc.
(ITN)

Lejeune Associates of Florida a (Lejeune)

Infiniti Group, Inc.

Mary Kay Cosmetics

International Communications Association a

MBNA America Bank, N.A.

International Telesystems Corporation

MCI Telecommunications Corporation a

*8787 InterVoice

Merrill Lynch, Pierce, Fenner & Smith, Inc.

Inventures

MessagePhone, Inc.a

Investor's Business Daily

Metrocall

ITI Marketing Services, Inc.

Midland Daily News

Investment Company Institute

Minnesota Attorney General

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

71 Rad. Reg. 2d (P & F) 445, 7 F.C.C.R. 8752, 7 FCC Rcd. 8752, 1992 WL
690928 (F.C.C.)

Page 25

Mktg. Inc.aa

NonProfit Group aa

Mobile Press Register

*8788 North American Telecommunications Association (NATA)

Montgomery Advertiser, Alabama Journal
Norwest Card Services
Morning Call (Donald J. Belasco)
Nynex Telephone Companies
Morning Call (Richard E. Forgay II)
Ohio Newspaper Association
Mr. Fax

a

Ohio Public Utilities Commission (OPUC)
Muskegon Chronicle
Ohio Student Loan Commission
National Association of Realtors
Olan Mills, Inc.a
National Association of Water Companies
Oregonian
National Consumers League (NCL)
Orlando Sentinel
National FaxList
Pacesetter Corporation
National Retail Federation (NRF)
Pacific Bell, Nevada Bell a (Pacific Bell)
National Rural Electric Cooperative Association a
Palm Beach Post
National
(NTCA)

Telephone

Cooperative

Association
Pennsylvania Newspaper Publishers' Association

NationsBank

Pueblo Chieftain

New Haven Register

Pierce–Pepin Electric Cooperative

News and Observer

Pioneer Electric Cooperative

Newspaper Association of America aa (Initial Comment by American Newspaper Publishers Association)

Pitney Bowes aa

New York Department of Public Service a

PNC Financial Corporation

New York State Consumer Protection Board aa

Press Journal

New York Times

Princeton Packet, Inc.

Newsday

Privacy Times

Plain Dealer

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

71 Rad. Reg. 2d (P & F) 445, 7 F.C.C.R. 8752, 7 FCC Rcd. 8752, 1992 WL
690928 (F.C.C.)

Page 26

Private Citizen, Inc.a (Private Citizen)

Stockton Record

Public Forum aa

Student Loan Marketing Association a

Record Journal Publishing

Sun, The

**25 Reese Brothers, Inc.

Syracuse Herald–Journal, Post–Standard, Herald
American

Review
Tampa Tribune
RMH Telemarketing
Tandy Corporation aa
Rochester Telephone Corporation
Teknekron Infoswitch Corporation
Rocky Mountain BankCard System
*8789 Telecheck Services
a

SafeCard Services, Inc. (Safecard)
Telegram & Gazette
San Francisco Newspaper Agency
Telemarketing Magazine aa
Santa Barbara News–Press
Santa Cruz, County of

Telocator, the Personal Communications Industry
Association

Santa Monica, City of aa

Texarkana Gazette

Scottsdale Progress

Texas Public Utilities Commission a

Sears, Roebuck and Co.

Thomas Construction a

Securities Industry Association a (SIA)

Thomasville Times–Enterprise

Sentinel–Record

Time Warner Inc. a

Shotten III, Bert K.

Times–Picayune

Southern New England Telephone Company
(SNET)

a

Union–News, Sunday–Republican
Unisys

Southwestern Bell Telephone Company a (SWBT)
United Electric Cooperative, Inc.
Spokesman–Review, Spokane Chronicle
United States Postal Service aa
Sprint a
United States Telephone Association
Star–Ledger
United Student Aid Funds, Inc. aa

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

71 Rad. Reg. 2d (P & F) 445, 7 F.C.C.R. 8752, 7 FCC Rcd. 8752, 1992 WL
690928 (F.C.C.)

Page 27

Subpart L—Restrictions on Telephone Solicitation
U.S. Intelco Networks, Inc.
U.S. West Communications, Inc. (U.S. West)
USAA Federal Savings Bank
Utilities Telecommunications Council
Vanguard Cellular Systems, Inc.
Verde Independent
Vermont Public Service Board aa
Victoria Advocate
Waco Tribune
Wachovia
Washington State Attorney General
Wells Fargo Bank
West Marketing Services
Western Express Service Company
Wisconsin, State of, Department of Justice
Worcester Telegram & Gazette
Zacson Corporation
FNa. also filed reply comments
FNaa. filed only reply comments
*8790 APPENDIX B
Title 47 of the Code of Federal Regulations, parts 64
and 68, are amended as follows:
1. The table of contents for part 64 is amended by
adding subpart L to read as follows:

§ 64.1200 Delivery restrictions.
2. The authority citation for subpart L is added to part
64 to read as follows:
Authority: 47 U.S.C. §§ 151, 154(i), 154(j), 201–
205, 218, and 227.
3. Subpart L is added to part 64 to read as follows:
Subpart L—Restrictions on Telephone Solicitation
§ 64.1200 Delivery Restrictions.
(a) No person may
(1) Initiate any telephone call (other than a call
made for emergency purposes or made with the
prior express consent of the called party) using
an automatic telephone dialing system or an artificial or prerecorded voice,
(i) to any emergency telephone line, including any 911 line and any emergency line of
a hospital, medical physician or service office, health care facility, poison control center, or fire protection or law enforcement
agency;
**26 (ii) To the telephone line of any guest
room or patient room of a hospital, health
care facility, elderly home, or similar establishment; or
(iii) To any telephone number assigned to a
paging service, cellular telephone service,
specialized mobile radio service, or other
radio common carrier service, or any service
for which the called party is charged for the
call;
(2) 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 § 64.1200(c).
*8791 (3) Use a telephone facsimile machine,
computer, or other device to send an unsolicited
advertisement to a telephone facsimile machine.
(4) Use an automatic telephone dialing system in
such a way that two or more telephone lines of a
multi-line business are engaged simultaneously.
(b) For the purpose of § 64.1200(a) the
term “emergency purposes” means calls
made necessary in any situation affecting the health and safety of consumers.
(c) The term “telephone call” in §

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

71 Rad. Reg. 2d (P & F) 445, 7 F.C.C.R. 8752, 7 FCC Rcd. 8752, 1992 WL
690928 (F.C.C.)

64.1200(a)(2) shall not include a call or
message by, or on behalf of, a caller:
(1) that is not made for a commercial purpose,
(2) that is made for a commercial purpose but
does not include the transmission of any unsolicited advertisement,
(3) to any person with whom the caller has an established business relationship at the time the
call is made, or
(4) which is a tax-exempt nonprofit organization.
(d) All artificial or prerecorded telephone messages delivered by an automatic telephone dialing system shall:
(1) At the beginning of the message, state clearly
the identity of the business, individual, or other
entity initiating the call, and
(2) During or after the message, state clearly the
telephone number (other than that of the autodialer or prerecorded message player which
placed the call) or address of such business, other
entity, or individual.
(e) No person or entity shall initiate any
telephone solicitation to a residential
telephone subscriber (1) before the hour
of 8 A.M. or after 9 P.M. (local time at
the called party's location), and (2)
unless such person or entity has instituted procedures for maintaining a list
of persons who do not wish to receive
telephone solicitations made by or on
behalf of that person or entity. The procedures instituted must meet the following minimum standards:
(i) Written policy. Persons or entities making telephone solicitations must have a written policy, available upon demand, for maintaining a do-not-call list.
(ii) Training of personnel engaged in telephone solicitation. Personnel engaged in any
aspect of telephone solicitation must be informed and trained in the existence and use
of the do-not-call list.
(iii) Recording, disclosure of do-not-call requests. If a person or entity making a telephone solicitation (or on whose behalf a solicitation is made) receives a request from a
residential telephone subscriber not to receive *8792 calls from that person or entity,
the person or entity must record the request
and place the subscriber's name and telephone number on the do-not-call list at the
time the request is made. If such requests are

Page 28

recorded or maintained by a party other than
the person or entity on whose behalf the solicitation is made, the person or entity on
whose behalf the solicitation is made will be
liable for any failures to honor the do-notcall request. In order to protect the consumer's privacy, persons or entities must obtain a consumer's prior express consent to
share or forward the consumer's request not
to be called to a party other than the person
or entity on whose behalf a solicitation is
made or an affiliated entity.
**27 (iv) Identification of telephone solicitor. A person or entity making a telephone
solicitation must provide the called party
with the name of the individual caller, the
name of the person or entity on whose behalf the call is being made, and a telephone
number or address at which the person or
entity may be contacted. If a person or entity
makes a solicitation using an artificial or
prerecorded voice message transmitted by
an autodialer, the person or entity must provide a telephone number other than that of
the autodialer or prerecorded message player
which placed the call.
(v) Affiliated persons or entities. In the absence of a specific request by the subscriber
to the contrary, a residential subscriber's donot-call request shall apply to the particular
business entity making the call (or on whose
behalf a call is made), and will not apply to
affiliated entities unless the consumer reasonably would expect them to be included
given the identification of the caller and the
product being advertised.
(vi) Maintenance of do-not-call lists. A person or entity making telephone solicitations
must maintain a do-not-call list for the purpose of any future telephone solicitations.
(f) As used in this section:
(1) The terms “automatic telephone dialing system” and “autodialer” mean equipment which
has the capacity to store or produce telephone
numbers to be called using a random or sequential number generator and to dial such numbers.
(2) The term “telephone facsimile machine”
means equipment which has the capacity to transcribe text or images, or both, from paper into an
electronic signal and to transmit that signal over
a regular telephone line, or to transcribe text or
images (or both) from an electronic signal re-

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

71 Rad. Reg. 2d (P & F) 445, 7 F.C.C.R. 8752, 7 FCC Rcd. 8752, 1992 WL
690928 (F.C.C.)

ceived over a regular telephone line onto paper.
(3) The term “telephone solicitation” 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, but such term
does not include a call or message (i) to any person with that person's prior express invitation or
permission, (ii) to any person with whom the
caller has an established business relationship, or
(iii) by a tax-exempt nonprofit organization.
*8793 (4) The term “established business relationship” means a prior or existing relationship
formed by a voluntary two-way communication
between a person or entity and a residential subscriber with or without an exchange of consideration, on the basis of an inquiry, application,
purchase or transaction by the residential subscriber regarding products or services offered by
such person or entity, which relationship has not
been previously terminated by either party.
(5) 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.
**28 4. The authority citation for subpart D of part
68 is revised to read as follows:
Authority: 47 U.S.C. §§ 151, 154, 155, 201–205,
218, 227, and 303.
5. Section 68.318(c) is amended by revising paragraph (c)(2) and adding paragraph (c)(3) to read as
follows:
§ 68.318 Additional limitations.
*****
(c) * * *
(2) 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.
(3) Telephone facsimile machines; identification
of the sender of the message. It shall be unlawful
for any person within the United States to use a

Page 29

computer or other electronic device to send any
message via a telephone facsimile machine
unless such message clearly contains, in a margin at the top or bottom of each transmitted page
or on the first page of the transmission, the date
and time it is sent and an identification of the
business, other entity, or individual sending the
message and the telephone number of the sending machine or of such business, other entity, or
individual. Telephone facsimile machines manufactured on and after December 20, 1992 must
clearly mark such identifying information on
each transmitted message.
September 17, 1992
*8794 STATEMENT OF COMMISSIONER ANDREW C. BARRETT
RE: Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991 (CC Docket
No. 92–90).
This item adopts regulations to implement the prohibitions and technical requirements mandated by the
Telephone Consumer Protection Act (TCPA) of
1991. This item also establishes regulations which
allow consumers to avoid unwanted telephone solicitations through the placement on company specific
do-not-call lists.
In crafting these provisions I was mindful of the need
to strike a reasonable balance between privacy rights,
public safety interests, and commercial freedoms of
speech and trade, which Congress cited as a paramount concern in enacting the 1991 Act. I believe the
proposed requirements balances the objectives of
protecting customers from nuisance calls while permitting legitimate telemarketing practices.
In particular this item prohibits calls using autodialers
or prerecorded messages to emergency and health
care facilities. Prerecorded messages to residences
would be prohibited. This Order also establishes
mandatory guidelines for telemarketers regarding the
maintenance of company specific do-not-call lists.
These guidelines will require a written policy, training of customer representatives regarding do-not-call
policy and procedures and other related requirements.
I believe that the current record clearly supports the
company-specific do-not call lists as the most effec-

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

71 Rad. Reg. 2d (P & F) 445, 7 F.C.C.R. 8752, 7 FCC Rcd. 8752, 1992 WL
690928 (F.C.C.)

tive, most easily implemented and the least costly of
the methods proposed to curb unwanted telephone
solicitations.
**29 It is my expectations that the proposed rules
will have a significant impact in curtailing intrusive
nuisance calls by telemarketers. I will be monitoring
these rules closely to make sure that they adequately
protect consumers from unwanted calls.
FCC
71 Rad. Reg. 2d (P & F) 445, 7 F.C.C.R. 8752, 7
FCC Rcd. 8752, 1992 WL 690928 (F.C.C.)
END OF DOCUMENT

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