**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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**NOTICE OF PROPOSED RULEMAKING**

**Adopted: November 27, 2007 Released: December 4, 2007**

**Comment Date: (30 days after publication in the Federal Register).**

**Reply Comment Date: (45 days after publication in the Federal
Register).**

By the Commission: Chairman Martin, Commissioners Copps, Adelstein,
Tate, and McDowell issuing separate statements.

# introduction

1.  In this Notice of Proposed Rulemaking (Notice), we tentatively
    conclude that we should amend the Commission's rules under the
    Telephone Consumer Protection Act (TCPA)[^1] to require
    telemarketers subject to our rules to honor registrations with the
    National Do-Not-Call Registry so that registrations will not
    automatically expire based on the current five year registration
    period.[^2] We propose extending this requirement indefinitely to
    minimize the inconvenience to consumers of having to re-register
    their preferences not to receive telemarketing calls and to further
    the underlying goal of the National Registry to protect consumer
    privacy rights. We seek comment on this tentative conclusion and how
    to most effectively implement this proposed change.

# background

2.  On December 20, 1991, Congress enacted the TCPA, as codified in
    section 227 of the Communications Act of 1934, as amended, in an
    effort to address a growing number of telephone marketing calls and
    certain telemarketing practices Congress found to be an invasion of
    consumer privacy.[^3] In relevant part, the TCPA required the
    Commission to "initiate a rulemaking proceeding concerning the need
    to protect residential telephone subscribers' privacy rights"[^4]
    and specifically authorized the Commission to consider "the
    establishment and operation of a single national database to compile
    a list of telephone numbers of residential subscribers who object to
    receiving telephone solicitations."[^5]

3.  On July 3, 2003, the Commission revised the TCPA rules and adopted
    new rules to provide consumers with several options for avoiding
    unwanted telephone solicitations.[^6] In particular, the Commission
    established a National Do-Not-Call Registry, in conjunction with the
    Federal Trade Commission (FTC), to provide residential consumers
    with a one-step option to prevent unwanted telemarketing calls.[^7]
    The National Do-Not-Call Registry, which went into effect October 1,
    2003, prohibits telemarketers from contacting those consumers who
    register their telephone numbers on the do-not-call list, unless the
    call falls within a recognized exemption.[^8] Pursuant to Commission
    regulations, telemarketers are required to honor such do-not-call
    registrations for a period of five years.[^9] The National
    Do-Not-Call Registry supplemented the long-standing company-specific
    do-not-call rules which require companies to maintain lists of
    consumers who ask not to be called by a particular company.[^10]

4.  The Commission also concluded that a "safe harbor" should be
    established for telemarketers that have made a good faith effort to
    comply with the national do-not call rules.[^11] Consistent with the
    FTC's rules, the safe harbor provides that a seller or an entity
    telemarketing on behalf of the seller will not be liable for
    violating the national do-not-call rules if it can demonstrate that,
    among other things, it uses a process to prevent telemarketing calls
    to any telephone number on the Registry and employs a version of the
    Do-Not-Call Registry obtained from the administrator no more than 31
    days prior to the date any call is made.[^12] The seller must also
    maintain records documenting this process.[^13]

5.  The opening of the National Do-Not-Call Registry was announced on
    June 27, 2003. That same day, consumers were permitted to begin
    registering their telephone numbers on the Registry online or by
    calling a toll-free number. Within the first three days of the
    Registry's operation, consumers had registered more than 10 million
    telephone numbers.[^14] As of June 2004, one year after opening
    registration to the public, the National Registry contained more
    than 62 million telephone numbers. Today, the National Do-Not-Call
    Registry contains over 145 million numbers.

6.  On February 18, 2005, the Commission released a *Second Order on
    Reconsideration* addressing a number of petitions that raised
    questions related to the administration and operation of the
    National Do-Not-Call Registry.[^15] The Commission dismissed
    petitions to the extent they sought reconsideration of the rules
    establishing the National Do-Not-call Registry. It noted, however,
    that the Commission will continue to monitor closely the operation
    of the list to ensure its continued effectiveness.[^16]

#  discussion

7.  We tentatively conclude that we should amend our rules so that
    telemarketers will be required to honor registrations with the
    National Do-Not-Call Registry until the registration is cancelled by
    the consumer or the telephone number is removed by the database
    administrator because it was disconnected or reassigned.[^17] Under
    this tentative conclusion, consumer registrations will not expire
    after five years. We seek comment on this tentative conclusion and
    how to implement this rule change in coordination with the FTC.

8.  The National Do-Not-Call Registry was adopted in large part to make
    it easier and more efficient for consumers to prevent unwanted
    telemarketing calls. As explained in Reports to Congress, the
    Commission believes the number of telephone numbers added to the
    Registry and the FCC's experience in both helping to ensure
    compliance with the Registry and in enforcing the do-not-call rules
    are strong indicators that the Registry has been successful in
    curbing the number of unwanted telemarketing calls.[^18]

9.  Therefore, we are concerned that, starting June 28, 2008, five years
    after the opening of the Registry, as many as 10 million registered
    numbers will expire and be automatically removed from the database,
    unless consumers take steps to re-register the numbers.[^19] By
    August 2008, as many as 20 million additional numbers will
    potentially expire and be purged from the Registry. Such expirations
    will leave millions of consumers without protection against unwanted
    telemarketing calls---protections they have come to rely on since
    registering their numbers in 2003. Removing the current 5-year
    registration period will alleviate any burdens on consumers
    associated with re-registering numbers, including the time and
    effort necessary to register and the need to remember when to
    re-register. We believe requiring telemarketers to continue honoring
    do-not-call registrations will also minimize any consumer confusion
    resulting from a sudden increase in telemarketing calls received
    when registrations begin to expire next year. In addition,
    eliminating the need to re-register numbers every five years should
    lower the cost of operating the National Registry.

10. In adopting the National Registry, the Commission was mindful of
    concerns regarding the accuracy of the database.[^20] Initially, the
    Commission determined that a re-registration requirement should be
    included given that telephone numbers change hands, are disconnected
    and reassigned over time.[^21] However, we believe the database
    administrator's use of technology to check all registered telephone
    numbers on a monthly basis and remove those numbers that have been
    disconnected or reassigned will maintain the database's high-level
    of accuracy.[^22] In addition, consumers will continue to be able to
    verify or cancel their registration status using either the
    telephone or Internet. Allowing consumers to verify their
    registration status or cancel their registrations at any time also
    enhances the accuracy of the National Registry.[^23]

11. We recognize that absent a similar change in the FTC's
    policies,[^24] numbers that have been in the Registry for five years
    may be purged by the database administrator beginning in June 2008,
    and that telemarketers will no longer have access to those numbers
    in order to avoid calling them. We note, however, that the FTC
    recently committed that "it will not drop any telephone numbers from
    the Registry based on the five-year expiration period pending final
    Congressional or agency action on whether to make registration
    permanent."[^25] We envision working closely with the FTC to ensure
    that telephone numbers are not removed at the end of the 5-year
    registration period, and that telemarketers continue to have access
    to those numbers. We seek comment on how best to coordinate with the
    FTC to most effectively institute this rule change in a meaningful,
    consistent way.

12. In light of our tentative conclusion and the FTC's indication that
    it will retain registrations after the 5-year period, we believe the
    Registry will continue to operate as it does today. We therefore
    seek comment on what impact, if any, our proposed rule change would
    have on telemarketers, particularly small businesses.[^26] Because
    telemarketers would be required to continue honoring do-not-call
    registrations as they do now, we tentatively conclude that the
    enhanced consumer privacy protections created by this proposed rule
    amendment, taken in conjunction with the benefits to the federal
    government in administering the National Registry, outweigh any
    potential impact.

# CONCLUSION

13. We tentatively conclude that requiring telemarketers to honor
    registrations on the National Do-Not-Call Registry indefinitely will
    greatly enhance consumer privacy interests. We seek comment on this
    tentative conclusion and on how best to coordinate this rule change
    with the FTC. We believe making registrations permanent adequately
    balances the need to maintain a high level of accuracy in the
    National Registry with the desire to have a simple and effective
    means to limit unwanted telemarketing calls.

#  Procedural mATTERS

## *Ex Parte* Presentations

14. This proceeding shall be treated as a "permit-but-disclose"
    proceeding in accordance with the Commission's *ex parte*
    rules.[^27] Persons making oral *ex parte* presentations are
    reminded that memoranda summarizing the presentations must contain
    summaries of the substance of the presentations and not merely a
    listing of the subjects discussed. More than a one- or two-sentence
    description of the views and arguments presented is generally
    required.[^28] Other rules pertaining to oral and written
    presentations are set forth in Section 1.1206(b) of the Commission's
    rules as well.

## Comment Filing Procedures

15. Pursuant to Sections 1.415 and 1.419 of the Commission's rules, 47
    C.F.R. §§ 1.415, 1.419, interested parties may file comments and
    reply comments on or before the dates indicated on the first page of
    this document. All filings related to this Notice of Proposed
    Rulemaking should refer to **CG Docket No. 02-278**. Comments may be
    filed using: (1) the Commission's Electronic Comment Filing System
    (ECFS), (2) the Federal Government's rulemaking Portal, or (3) by
    filing paper copies. *See* Electronic Filing of Documents in
    Rulemaking Proceedings, 63 Fed. Reg. 24,121 (1998).

-   Electronic Filers: Comments may be filed electronically using the
    Internet by accessing the ECFS: http://www.fcc.gov/cgb/ecfs or the
    Federal eRulemaking Portal: http://www.regulations.gov. Filers
    should follow the instructions provided on the website for
    submitting comments.

    -   ECFS filers must transmit one electronic copy of the comments
        for CG Docket No. 02-278. In completing the transmittal screen,
        filers should include their full name, U.S. Postal Service
        mailing address, and the applicable docket or rulemaking number.
        Parties may also submit an electronic comment by Internet
        e-mail. To get filing instructions, filers should send an e-mail
        to ecfs@fcc.gov, and include the following words in the body of
        the message, "get form." A sample form and directions will be
        sent in response.

-   Paper Filers: Parties who choose to file by paper must file an
    original and four copies of each filing. If more than one docket or
    rulemaking number appears in the caption of this proceeding, filers
    must submit two additional copies for each additional docket or
    rulemaking number.

    Filings can be sent by hand or messenger delivery, by commercial
    overnight courier, or by first-class or overnight U.S. Postal
    Service mail (although we continue to experience delays in receiving
    U.S. Postal Service mail). All filings must be addressed to the
    Commission's Secretary, Marlene H. Dortch, Office of the Secretary,
    Federal Communications Commission, 445 12^th^ Street, S.W.,
    Washington, D.C. 20554.

    -   The Commission's contractor will receive hand-delivered or
        messenger-delivered paper filings for the Commission's Secretary
        at 236 Massachusetts Avenue, N.E., Suite 110, Washington,
        DC 20002. The filing hours at this location are 8:00 a.m. to
        7:00 p.m. All hand deliveries must be held together with rubber
        bands or fasteners. Any envelopes must be disposed of
        [before]{.underline} entering the building.

    -   Commercial overnight mail (other than U.S. Postal Service
        Express Mail and Priority Mail) must be sent to 9300 East
        Hampton Drive, Capitol Heights, MD 20743.

    -   U.S. Postal Service first-class, Express, and Priority mail must
        be addressed to 445 12^th^ Street, S.W., Washington, DC 20554.

16. Comments and reply comments and any other filed documents in this
    matter may be obtained from Best Copy and Printing, Inc., in person
    at 445 12th Street, S.W., Room CY-B402, Washington, DC 20554, via
    telephone at (202) 488-5300, via facsimile at (202) 488-5563, or via
    e-mail at FCC@BCPIWEB.COM. The pleadings will also be available for
    public inspection and copying during regular business hours in the
    FCC Reference Information Center, Room CY-A257, 445 12th Street,
    S.W., Washington, DC 20554, and through the Commission's Electronic
    Comment Filing System (ECFS) accessible on the Commission's Web
    site, http://www.fcc.gov/cgb/ecfs.

17. To request materials in accessible formats for people with
    disabilities (braille, large print, electronic files, audio format),
    send an e-mail to fcc504@fcc.gov or call the Consumer & Governmental
    Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY). This
    Notice can also be downloaded in Word and Portable Document Format
    at http://www.fcc.gov/cgb/policy.

18. Commenters who file information that they believe should be withheld
    from public inspection may request confidential treatment pursuant
    to Section 0.459 of the Commission's rules. Commenters should file
    both their original comments for which they request confidentiality
    and redacted comments, along with their request for confidential
    treatment. Commenters should not file proprietary information
    electronically. *See Examination of Current Policy Concerning the
    Treatment of Confidential Information Submitted to the Commission*,
    Report and Order, 13 FCC Rcd 24816 (1998), *recon.*, 14 FCC Rcd
    20128 (1999). Even if the Commission grants confidential treatment,
    information that does not fall within a specific exemption pursuant
    to the Freedom of Information Act (FOIA) must be publicly disclosed
    pursuant to an appropriate request. *See* 47 C.F.R. § 0.461; 5
    U.S.C. § 552. We note that the Commission may grant requests for
    confidential treatment either conditionally or unconditionally.
    As such, we note that the Commission has the discretion to release
    information on public interest grounds that does fall within the
    scope of a FOIA exemption.

## Initial Regulatory Flexibility Analysis

19. Pursuant to the Regulatory Flexibility Act of 1980, as amended
    (RFA),[^29] the Commission's Initial Regulatory Flexibility Analysis
    is attached as Appendix B.

## Paperwork Reduction Act Analysis 

20. This document does not contain new or modified information
    collection requirements subject to the PRA of 1995, Public Law
    104-13. In addition, it does not contain any new or modified
    "information collection burden for small business concerns with
    fewer than 25 employees," pursuant to the Small Business Paperwork
    Relief Act of 2002, Public Law 107-198.[^30]

# Ordering Clauses

21. Accordingly, IT IS ORDERED that, pursuant to Sections 1-4, 227, and
    303(r) of the Communications Act of 1934, as amended, 47 U.S.C. §§
    151-154, 227 and 303(r); and Section 64.1200 of the Commission's
    rules, 47 C.F.R. § 64.1200, this Notice of Proposed Rulemaking in CG
    Docket No. 02-278 IS ADOPTED.

22. IT IS FURTHER ORDERED that, pursuant to applicable procedures set
    forth in Sections 1.415 and 1.419 of the Commission's rules, 47
    C.F.R. §§ 1.415, 1.419, interested parties may file comments on this
    Notice of Proposed Rulemaking on or before 30 days after publication
    in the Federal Register, and reply comments on or before 45 days
    after publication in the Federal Register.

23. IT IS FURTHER ORDERED that the Commission's Consumer & Governmental
    Affairs Bureau, Reference Information Center, SHALL SEND a copy of
    this Notice of Proposed Rulemaking, including the Initial Regulatory
    Flexibility Analysis, to the Chief Counsel for Advocacy of the Small
    Business Administration.

> FEDERAL COMMUNICATIONS COMMISSION
>
> Marlene H. Dortch
>
> Secretary

**APPENDIX A**

**Proposed Rules**

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

**PART 64 -- MISCELLANEOUS RULES RELATING TO COMMON CARRIERS**

1\. The authority citation for part 64 as of October 1, 2006 continues
to read as follows:

 

47 U.S.C. 154, 254(k); secs. 403(b)(2)(B)(c), Pub. L. 104-104, 110 Stat.
56.  Interpret or apply 47 U.S.C. 201, 218, 222, 225, 226, 228, and
254(k) unless otherwise noted.

###  {#section .unnumbered}

\* \* \* \* \*

2\. Section 64.1200(c)(2) is revised to read as follows:

\(c\) \* \* \*

\(1\) \* \* \*

\(2\) A residential telephone subscriber who has registered his or her
telephone number on the national do-not-call registry of persons who do
not wish to receive telephone solicitations that is maintained by the
federal government. Any person or entity making telephone solicitations
(or on whose behalf telephone solicitations are made) will not be liable
for violating this requirement if:

\(i\) \* \* \*

\(A\) \* \* \*

\(B\) \* \* \*

\(C\) \* \* \*

\(D\) [Accessing the national do-not-call database]{.underline}. It uses
a process to prevent telephone solicitations to any telephone number on
any list established pursuant to the do-not-call rules, employing a
version of the national do-not-call registry obtained from the
administrator of the registry no more than 31 days prior to the date any
call is made, and maintains records documenting this process; and

\* \* \* \* \*

**APPENDIX B**

**Initial Regulatory Flexibility Analysis**

1.  As required by the Regulatory Flexibility Act of 1980, as amended
    (RFA),[^31] the Commission has prepared this present Initial
    Regulatory Flexibility Analysis (IRFA) of the possible significant
    economic impact on a substantial number of small entities by the
    policies and rules proposed in this Notice of Proposed Rule Making
    (Notice). Written public comments are requested on this IRFA.
    Comments must be identified as responses to the IRFA and must be
    filed by the deadlines for comments provided in paragraph 23 of the
    item. The Commission will send a copy of this Notice, including this
    IRFA, to the Chief Counsel for Advocacy of the Small Business
    Administration (SBA).[^32] In addition, the Notice and IRFA (or
    summaries thereof) will be published in the Federal Register.[^33]

## Need for, and Objectives of, the Proposed Rules

24. In 2003, the Commission released a Report and Order (*2003 TCPA
    Order*) revising the TCPA rules to respond to changes in the
    marketplace for telemarketing. Specifically, we established in
    conjunction with the FTC a National Do-Not-Call Registry for
    consumers who wish to avoid unwanted telemarketing calls. The
    National Do-Not-Call Registry supplements long-standing
    company-specific rules which require companies to maintain lists of
    consumers who have directed the company not to contact them by
    phone. The *2003 TCPA Order* required telemarketers to honor
    do-not-call registrations on the National Registry for five years.
    It also revised the company-specific do-not-call rules to reduce the
    retention period for such do-not-call requests from ten to five
    years. This Notice tentatively concludes to amend the Commission's
    rules so that registrations with the National Do-Not-Call Registry
    will not expire after a period of five years. Telemarketers will
    instead be required to honor such registrations until consumers
    cancel the registrations or the numbers are removed because they
    were disconnected or reassigned.

## Legal Basis

25. The proposed action is authorized under Sections 1-4, 227, and
    303(r) of the Communications Act of 1934, as amended; the Telephone
    Consumer Protection Act of 1991, Pub. L. No. 102-243, 105 Stat.
    2394; and the Do-Not-Call Implementation Act, Pub. L. No. 108-10,
    117 Stat. 557.

## Description and Estimate of the Number of Small Entities to Which the Proposed Rules Will Apply

26. The RFA directs agencies to provide a description of and, where
    feasible, an estimate of the number of small entities that may be
    affected by the proposed rules, if adopted.[^34] The RFA generally
    defines the term \"small entity\" as having the same meaning as the
    terms \"small business,\" \"small organization,\" and \"small
    governmental jurisdiction.\"[^35] In addition, the term \"small
    business\" has the same meaning as the term \"small business
    concern\" under the Small Business Act.[^36] A small business
    concern is one which: (1) is independently owned and operated; (2)
    is not dominant in its field of operation; and (3) satisfies any
    additional criteria established by the SBA.[^37]

27. The modifications to the regulations proposed in this item on
    telephone solicitation apply to a wide range of entities, including
    all entities that use the telephone to advertise. That is, the
    proposed rule changes would affect the myriad of businesses
    throughout the nation that use telemarketing to advertise. Thus, we
    expect that the proposals in this NPRM could have a significant
    economic impact on a substantial number of small entities, including
    the following:

28. *Interexchange Carriers*. Neither the Commission nor the SBA has
    developed a specific size standard for small entities specifically
    applicable to providers of interexchange services. The closest
    applicable size standard under the SBA rules is for Wired
    Telecommunications Carriers. Under that standard, such a business is
    small if it has 1,500 or fewer employees.[^38] According to the
    FCC's *Telephone Trends Report* data, 281 carriers reported that
    their primary telecommunications service activity was the provision
    of interexchange services.[^39] Of these 281 carriers, an estimated
    254 have 1,500 or fewer employees, and 27 have more than 1,500
    employees.[^40] Consequently, we estimate that a majority of
    interexchange carriers may be affected by the rules.

29. *Incumbent Local Exchange Carriers*. Neither the Commission nor the
    SBA has developed a small business size standard for providers of
    incumbent local exchange services. The closest applicable size
    standard under the SBA rules is for Wired Telecommunications
    Carriers. Under that standard, such a business is small if it has
    1,500 or fewer employees.[^41] According to the FCC's *Telephone
    Trends Report* data, 1,310 incumbent local exchange carriers
    reported that they were engaged in the provision of local exchange
    services.[^42] Of these 1,310 carriers, an estimated 1,025 have
    1,500 or fewer employees and 285 have more than 1,500
    employees.[^43] Consequently, the Commission estimates that the
    majority of providers of local exchange service are small entities
    that may be affected by the rules and policies adopted herein.

30. *Wireless Service Providers.* In November of 2007, The SBA developed
    a small business size standard for small businesses in the category
    "Wireless Telecommunications Carriers (except satellite)."[^44]
    Under that SBA category, a business is small if it has 1,500 or
    fewer employees.[^45] Thus, under this category and the associated
    small business size standard, the great majority of firms can be
    considered small. For a census category that existed for a prior
    version of the NAICS codes, namely "Cellular and Other Wireless
    Telecommunications," Census Bureau data for 2002 show that there
    were 1,397 firms in this category that operated for the entire
    year.[^46] Of this total, 1,378 firms had employment of 999 or fewer
    employees, and 19 firms had employment of 1,000 employees or
    more.[^47] Thus, under this category and size standard, the majority
    of firms can be considered small.

31. Ordinarily, we do not seek comment on the entities that must comply
    with proposed rules. However, the proposed rules in this document
    potentially could apply to any entity, including any
    telecommunications carrier, that uses the telephone to advertise.
    Thus, under these unusual circumstances, we seek comment on whether
    the approximately 4.44 million small business firms in the United
    States, as identified in SBA data, will need to comply with these
    rules, or whether it is reasonable to assume that only a subset of
    them will be subject to these rules given that not all small
    businesses use the telephone for advertising purposes.[^48] After
    evaluating the comments, the Commission will examine further the
    effect any rule changes might have on small entities not named
    herein, and will set forth our findings in the final Regulatory
    Flexibility Analysis.

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

32. The Notice proposes to amend the National Do-Not-Call Registry rules
    to require telemarketers to honor registrations until consumers
    cancel their registrations. This proposed rule change will affect
    reporting, recordkeeping and other compliance requirements, as
    numbers currently registered will not be removed from the Registry
    after five years. However, as long as the FTC similarly changes its
    policies, we expect that telemarketers would continue to access the
    Registry and avoid calling numbers on the Registry as they are
    required to do so today.

## Steps Taken to Minimize the Significant Economic Impact on Small Entities, and Significant Alternatives Considered

33. The RFA requires an agency to describe any significant alternatives
    that it has considered in reaching its proposed approach, which may
    include the following four alternatives (among others): (1) the
    establishment of differing compliance or reporting requirements or
    timetables that take into account the resources available to small
    entities; (2) the clarification, consolidation, or simplification of
    compliance or reporting requirements under the rule for small
    entities; (3) the use of performance, rather than design, standards;
    and (4) an exemption from coverage of the rule, or any part thereof,
    for small entities.[^49]

34. The Commission is considering amending its rules to require
    telemarketers to honor national do-not-call registrations
    indefinitely and is seeking comment on this option. The alternative
    would be to not modify the rules and leave the registration period
    at 5 years. This would result is millions of national do-not-call
    registrations being removed from the Registry in 2008 and leaving
    consumers without protection from unwanted telemarketing calls
    unless they take action to re-register. Small businesses, which
    believe the elimination of any date of expiration for registrations
    would impact their business in a negative way, are requested to file
    comments and advise the Commission about such an impact.

## Federal Rules that May Duplicate, Overlap, or Conflict With the Proposed Rule

35. The FCC's TCPA rules and the FTC's Telemarketing Sales Rule are
    duplicative in part. Should the Commission determine to amend its
    rules and there is no similar amendment made to the FTC's policies,
    the two sets of rules may be inconsistent.

**STATEMENT OF**

**CHAIRMAN KEVIN J. MARTIN**

Re: *Rules and Regulations Implementing the Telephone Consumer
Protection Act of 1991,* CG Docket No. 02-278*.*

Today's action tentatively concludes that telephone numbers registered
in the National Do-Not-Call Registry will not expire after 5 years. The
Commission continues to move forward to protect consumers who have
registered their telephone numbers on the Do-Not-Call list. Consumers
expect their telephone numbers to remain protected under the Do-Not-Call
list until they have cancelled their registration or their telephone
number is disconnected or reassigned.

At the direction of Congress, the National Do-Not-Call Registry was
adopted to make it easier and more efficient for consumers to prevent
unwanted telemarketing calls. Since the opening of the National
Do-Not-Call Registry was announced in June of 2003, over 145 million
telephone numbers have been placed on the Registry. However, if the
Commission does not take action, millions of telephone numbers may
expire leaving millions of consumers without protection from unwanted
telemarketing calls. Today's action sets us on a path to minimize
consumer confusion for those consumers that have chosen to avoid
unwanted telemarketing calls. I expect the Commission to evaluate the
record we develop and move forward in a timely manner to ensure that
consumers registered on the National Do Not Call Registry continue to
maintain the privacy they deserve.

**STATEMENT OF**

**COMMISSIONER MICHAEL J. COPPS**

Re: *Rules and Regulations Implementing the Telephone Consumer
Protection Act of 1991*, CG Docket No. 02-278.

Nearly five years ago the Commission in coordination with the Federal
Trade Commission established the Do-Not-Call Registry that allowed
consumers to put limits on the telemarketing calls they received. At the
time, we made registrations valid for a finite period of time -- five
years -- in order to allow the FCC to evaluate the program. My how time
flies. June 2008 will mark five years and unless the Commission acts, in
conjunction with the FTC, to make these registrations permanent, tens of
millions of consumers will again be eligible for the constant barrage of
unwanted telemarketing calls. This Notice of Proposed Rulemaking is the
first step towards ensuring that we are able to make the registrations
permanent. It tentatively concludes that the Commission should make
registrations with the Do-Not-Call Registry permanent and it seeks
comment on how best to implement the proposed change. Upon completion of
such a rule change, consumers will not need to re-register nor take any
further action in order to remain on the Do-Not-Call Registry. I am
pleased the Commission does not ask consumers to take any further action
in order to keep unwanted telemarketing calls in abeyance. I am pleased
to support this item.

**STATEMENT OF**

**COMMISSIONER JONATHAN S. ADELSTEIN**

Re: *Rules and Regulations Implementing the Telephone Consumer
Protection Act of 1991,* CG Docket No. 02-278*.*

I am pleased to support this item which seeks comment on how we can
extend the benefits of the National Do-Not-Call Registry for millions of
Americans who stand to lose its protection as their registrations expire
over the next year. The Do-Not-Call Registry was one of the greatest
boons for consumers this agency has ever put forth. It is important that
we do everything within our power to maintain its vitality as a tool to
protect the privacy of American families.

The Do-Not-Call Registry benefits consumers on a daily basis and in a
very personal way. For millions of families, the Registry has restored
peace and quiet around the dinner table and has allowed them to once
again view their phones as a useful connection to the world rather than
a source of nightly harassment. So, it is important that we turn our
attention to the fact that the registrations of 10 to 30 million
consumers are set to expire next summer. This is a ticking time bomb for
consumer privacy. We needed to open this rulemaking to investigate what
we can do to extend the benefits of the Registry for these consumers. It
is not immediately clear that the FCC alone can prevent the expiration
of consumers' registrations, so it is important that we get started with
this investigation now. I look forward to working with my colleagues at
the Commission, our partners in developing and enforcing the Registry at
the Federal Trade Commission, and Congress as we move forward with this
effort to make sure that consumers retain control over their phones.

**STATEMENT OF**

**COMMISSIONER DEBORAH TAYLOR TATE**

Re: *Rules and Regulations Implementing the Telephone Consumer
Protection Act of 1991,* CG Docket No. 02-278*.*

I have been a strong supporter of the Do-Not-Call program as a state
commissioner and certainly as a consumer. Dinner time is a lot quieter
and the program has been wildly popular with consumers. In fact, in
Tennessee alone, more than 3 million phone numbers have been listed
since the establishment of the Tennessee program in 1999.  The Tennessee
Regulatory Authority (TRA) has been extremely vigilant in responding to
complaints and has issued enforcement actions against violators
exceeding \$300,000.  I am very proud of the work done by the TRA and
many other state commissions that oversee state programs.  

Likewise, the federal government established a Do-Not-Call program in
2003. As in Tennessee, the Do-Not-Call program has been extremely
popular, with over 145 million consumers registering their telephone
numbers, and has been very successful in curbing the number of unwanted
telemarketing calls.

Unfortunately registered numbers will begin to expire next year and that
is why our action today is so important. I am committed to working with
Congress and the Federal Trade Commission in taking whatever steps are
necessary to ensure that this important protection remains an effective
means for consumers to be free of unwanted telephone solicitations.

**STATEMENT OF**

**COMMISSIONER ROBERT M. MCDOWELL**

Re: *Rules and Regulations Implementing the Telephone Consumer
Protection Act of 1991,* CG Docket No. 02-278.

The Telephone Consumer Protection Act gives us responsibility to protect
residential telephone subscribers' privacy rights to avoid receiving
objectionable telephone solicitations. In 2003, we established the
National Do-Not-Call registry in cooperation with our sister agency, the
Federal Trade Commission. Out of an abundance of caution concerning the
accuracy of the database, the registrations were to be valid for five
years. Over the past four years, the Registry has proven to be an
effective vehicle to prevent consumers from receiving unwanted telephone
solicitations from telemarketers. In fact, consumers have registered
over 145 million telephone numbers, and I am one of them.

Now that we are approaching the five-year mark for the first of the
registrations, it is appropriate that we consider whether to make the
registrations permanent, unless a subscriber cancels the registration or
the number is disconnected or reassigned. I look forward to quickly
reviewing the comments so that we can take action well before the
five-year expiration of the first registrations, on June 28, 2008, and
provide certainty to consumers and continued protection from unwanted
solicitations. I also anticipate coordinating with the FTC to achieve
our joint statutory responsibilities under the Telephone Consumer
Protection Act.

[^1]: Telephone Consumer Protection Act of 1991, Pub. L. No. 102-243,
    105 Stat. 2394 (1991), *codified at* 47 U.S.C. § 227 (TCPA). The
    TCPA amended Title II of the Communications Act of 1934, 47 U.S.C. §
    201 *et seq*. *See also* 47 C.F.R. § 64.1200 *et seq.*

[^2]: 47 C.F.R. § 64.1200(c)(2).

[^3]: *See TCPA*, Section 2(5), reprinted in 7 FCC Rcd 2736 at 2744.

[^4]: 47 U.S.C. § 227(c)(1).

[^5]: 47 U.S.C. § 227(c)(3). *See Rules and Regulations Implementing the
    Telephone Consumer Protection Act of 1991*, CC Docket No. 92-90,
    Report and Order, 7 FCC Rcd 8752 (1992) (*1992 TCPA Order*) ; *see
    also* 47 C.F.R. § 64.1200.

[^6]: *Rules and Regulations Implementing the Telephone Consumer
    Protection Act of 1991*, CG Docket No. 02-278, Report and Order, 18
    FCC Rcd 14014 (2003) (*2003 TCPA Order*). The Commission's action in
    the *2003 TCPA Order* responded in part to the Do-Not-Call
    Implementation Act signed into law on March 11, 2003, which required
    the Commission to issue a final rule in its ongoing TCPA proceeding
    within 180 days of enactment, and to consult and coordinate with the
    Federal Trade Commission to "maximize consistency" with the rules
    promulgated by the FTC. *See* Do-Not-Call Implementation Act, Pub.
    L. No. 108-10, 117 Stat. 557 (2003), *codified at* 15 U.S.C. § 6101.

[^7]: *2003 TCPA Order*, 18 FCC Rcd at 14034, para. 28.

[^8]: The Commission explained that calls that do not fall within the
    definition of "telephone solicitation" as defined in section
    227(a)(3) are not restricted by the do-not-call rules. These include
    surveys, market research, and political and religious speech calls.
    The rules also do not prohibit calls by or on behalf of tax-exempt
    nonprofit organizations, calls to persons with whom the seller or
    telemarketer has an established business relationship (EBR), calls
    to businesses, and calls to persons with whom the marketer has a
    "personal relationship." *2003 TCPA Order*, 18 FCC Rcd at 14039-40,
    para. 37.

[^9]: 47 C.F.R. §64.1200(c)(2) ("No person or entity shall initiate any
    telephone solicitation, as defined in paragraph (f)(12) of this
    section, to:...(2) A residential telephone subscriber who has
    registered his or her telephone number on the national do-not-call
    registry of persons who do not wish to receive telephone
    solicitations that is maintained by the federal government. Such
    do-not-call registrations must be honored for a period of 5 years").
    The Commission concluded that a five-year registration period
    coupled with a monthly purging of disconnected telephone numbers
    adequately balances the need to maintain accuracy in the national
    registry with any burden imposed on consumers to re-register
    periodically their telephone numbers. *See 2003 TCPA Order*, 18 FCC
    Rcd at 14036-37, para. 31.

[^10]: 47 C.F.R. § 64.1200(d).

[^11]: *2003 TCPA Order*, 18 FCC Rcd at 14040, para. 38.

[^12]: *See* *Rules and Regulations Implementing the Telephone Consumer
    Protection Act of 1991*, CG Docket No. 02-278, 19 FCC Rcd 19215
    (2004); 47 C.F.R. §64.1200(c)(2)(i)(D).

[^13]: *Id.*

[^14]: *See Rules* *and Regulations Implementing the Telephone Consumer
    Protection Act of 1991*, CG Docket No. 02-278, Annual Report on the
    National Do-Not-Call Registry, 19 FCC Rcd 24002 (2004).

[^15]: *Rules and Regulations Implementing the Telephone Consumer
    Protection Act of 1991*, CG Docket No. 02-278, Second Order on
    Reconsideration, 20 FCC Rcd 3788 at 3790-92, paras. 6-9 (2005)
    (*Second Order on Reconsideration)* (noting DMA petition arguing
    that keeping wireless numbers on the national list will burden
    high-volume callers who have already taken measures to eliminate
    wireless numbers from their marketing lists and contending that the
    list should not contain business numbers and Brown petition asking
    the Commission to determine that telemarketers must update their
    call lists on a daily basis using the National Do-Not-Call
    Registry).

[^16]: *Id.* at para. 9.

[^17]: *See* Proposed Rules, Appendix A.

[^18]: *See Rules* *and Regulations Implementing the Telephone Consumer
    Protection Act of 1991*, CG Docket No. 02-278, Annual Report on the
    National Do-Not-Call Registry, 19 FCC Rcd 24002 (2004); *Rules and
    Regulations Implementing the Telephone Consumer Protection Act of
    1991*, CG Docket No. 02-278, Annual Report on the National
    Do-Not-Call Registry, 20 FCC Rcd 14306 (2005); *Rules and
    Regulations Implementing the Telephone Consumer Protection Act of
    1991*, CG Docket No. 02-278, Annual Report on the National
    Do-Not-Call Registry, 22 FCC Rcd 999 (2007).

[^19]: We note that several Members of Congress have recently introduced
    legislation to amend the Do-Not-Call Implementation Act to eliminate
    the automatic removal of telephone numbers registered on the Federal
    "do-not-call" registry. *See* Do-Not-Call Improvement Act of 2007,
    S.2096, 110^th^ Cong., 1^st^ Sess. (introduced Sept. 26, 2007) and
    Do-Not-Call Improvement Act of 2007, H.R. 3541, 110^th^ Cong., 1^st^
    Sess. (introduced Sept. 17, 2007) (prohibiting any date of
    expiration for do-not-call registrations).

[^20]: *2003 TCPA Order*, 18 FCC Rcd at 14036, paras. 30-32.

[^21]: *Id.*

[^22]: *See* *Telemarketing Sales Rule, Final Rule*, Federal Trade
    Commission, 68 Fed. Reg. 4580 at 4640 (2003) (*FTC Order*).

[^23]: *See 2003 TCPA Order*, 18 FCC Rcd at 14032, para. 22 n.102.

[^24]: *See* *FTC Order*, 68 Fed. Reg. 4580 at 4640 ("The \[FTC\] has
    determined that consumer registrations will remain valid for five
    years, with the registry periodically being purged of all numbers
    that have been disconnected or reassigned").

[^25]: *See* Statement of The Federal Trade Commission, "Enhancing FTC
    Consumer Protection in Financial Dealings, with Telemarketers, and
    on the Internet," presented by Lydia Parnes, Director of the Bureau
    of Consumer Protection at the Federal Trade Commission, before the
    Committee on Energy and Commerce, Subcommittee on Commerce, Trade,
    and Consumer Protection, U.S. House of Representatives, October 23,
    2007.

[^26]: *See also infra* Initial Regulatory Flexibility Analysis,
    Appendix B.

[^27]: 47 C.F.R. §§ 1.1200, 1.1206; *Amendment of 47 C.F.R. § 1.1200 et
    seq. Concerning Ex Parte Presentations in Commission Proceedings*,
    GC Docket No. 95-21, Report and Order, 12 FCC Rcd 7348 (1997).

[^28]: 47 C.F.R. § 1.1206(b)(2).

[^29]: *See* 5 U.S.C. §§ 601 *et seq.*

[^30]: 44 U.S.C. § 3506(c)(4).

[^31]: ^ ?^ *See* 5 U.S.C. § 603. The RFA, *see* 5 U.S.C. § 601 -- 612,
    has been amended by the Small Business Regulatory Enforcement
    Fairness Act of 1996 (SBREFA), Pub. L. No. 104-121, Title II, 110
    Stat. 857 (1996).

[^32]: *See* 5 U.S.C. § 603(a).

[^33]: *See* 5 U.S.C. § 603(a).

[^34]: 5 U.S.C. § 603(b)(3).

[^35]: 5 U.S.C. § 601(6).

[^36]: 5 U.S.C. § 601(3) (incorporating by reference the definition of
    \"small business concern\" in 15 U.S.C. §  632). Pursuant to the
    RFA, the statutory definition of a small business applies \"unless
    an agency, after consultation with the Office of Advocacy of the
    Small Business Administration and after opportunity for public
    comment, establishes one or more definitions of such term which are
    appropriate to the activities of the agency and publishes such
    definition(s) in the Federal Register.\" 5 U.S.C. § 601(3).

[^37]: Small Business Act, 15 U.S.C. § 632 (1996).

[^38]: 13 C.F.R. § 121.201, NAICS code 517110.

[^39]: FCC, Wireline Competition Bureau, Industry Analysis and
    Technology Division, *Trends in Telephone Service*, at Table 5.3, p.
    5 - 5 (May 2004) (*Telephone Trends Report*). This source uses data
    that are current as of October 22, 2003.

[^40]: *Id*.

[^41]: 13 C.F.R. § 121.201, NAICS code 517110.

[^42]: *Telephone Trends Report*, Table 5.3.

[^43]: *Id*.

[^44]: 13 C.F.R. § 121.201, NAICS code 517210.

[^45]: *Id*.

[^46]: U.S. Census Bureau, 2002 Economic Census, Subject Series:
    Information, "Establishment and Firm Size Including Legal Form of
    Organization," Table 5, superseded NAICS code 517212.

[^47]: *Id.* The census data do not provide a more precise estimate of
    the number of firms that have employment of 1,500 or fewer
    employees; the largest category provided is for firms with "1000
    employees or more."

[^48]: U.S. Department of Commerce, Bureau of the Census, 1992 Census of
    Transportation, Communications, and Utilities, UC 92-S-1, Subject
    Series, Establishment and Firm Size, Table 2D, Employment Size of
    Firms.

[^49]: *See* 5 U.S.C. § 603(c).