> **DA 05-1346**

**Released: May 13, 2005**

> **CONSUMER & GOVERNMENTAL AFFAIRS BUREAU SEEKS COMMENT ON PETITION FOR
> DECLARATORY RULING RELATING TO COMMISSION'S JURISDICTION OVER
> INTERSTATE TELEMARKETING**

**CG Docket No. 02-278**

**Comments Due: 30 Days After Publication in the Federal Register**

**Reply Comments Due: 50 Days After Publication in the Federal
Register**

On April 29, 2005, a coalition of 33 organizations, including trade
associations, individual companies, and non-profit entities engaged in
interstate telemarketing activities ("Joint Petitioners"), filed with
the Commission a joint petition for declaratory ruling.[^1] The Joint
Petition raises issues concerning the scope of the Commission's
jurisdiction over interstate telemarketing calls under the Telephone
Consumer Protection Act ("TCPA").[^2] In particular, Joint Petitioners
ask the Commission to issue a ruling declaring the Commission's
exclusive regulatory jurisdiction over interstate telemarketing calls
and barring state regulation of such calls.[^3] In this Public Notice,
we seek comment on the issues raised in the Joint Petition.[^4]

Joint Petitioners assert that, in the TCPA, Congress sought to
"establish uniform national standards that balance the concerns of
consumers with the legitimate interests of telemarketers."[^5] According
to Joint Petitioners, states have adopted and proposed "divergent rules
applicable to interstate telemarketing that undermine the desired
uniform federal regulatory regime."[^6] Citing dozens of existing and
proposed state laws that differ from the Commission's TCPA rules and
that do not distinguish between intrastate and interstate telemarketing
calls, Joint Petitioners contend that these state regulations place
"undue and at times impossible compliance burdens on interstate
telemarketers, and lead\[\] state courts in enforcement actions
to...impose substantial fines on telemarketers for interstate calls
expressly permitted by the federal rules."[^7]

To resolve this situation, Joint Petitioners ask the Commission to
"revisit" determinations that it made in its *TCPA Order* concerning
"the interplay between federal and state authority" over interstate
telemarketing activities and "clarify that the FCC has exclusive
authority over interstate telemarketing."[^8] Joint Petitioners contend
that the Commission's conflict preemption approach to resolving alleged
conflicts between state and federal telemarketing laws is "unsound"
because, in their view, states have no authority to regulate interstate
telemarketing.[^9] Joint Petitioners state that the Commission's
regulatory authority under the TCPA must be understood against the
backdrop of pre-existing federal law governing the regulation of
interstate communications. Specifically, they assert that Congress: (1)
provided the Commission with exclusive jurisdiction over interstate
communications in section 2(a) of the Communications Act; (2) expanded
the Commission's authority over intrastate telemarketing calls in the
TCPA amendments to section 2(b) of the Act; and thus (3) made clear that
it considered telemarketing to be "communication" covered by section 2
of the Act.[^10] Joint Petitioners also take issue with the Commission's
statement in the *TCPA Order* that section 227(e)(1) of the Act is
"ambiguous" as to whether states may regulate interstate telemarketing
calls, asserting that that section instead reflects Congress's desire to
"(a) expand\[\] federal power over intrastate calls, (b) restrict\[\],
but ...not eliminate, state authority over such calls, and (c) ... not
grant to the states any authority over interstate calls."[^11]

Based on the view that Congress intended the Commission to have
exclusive jurisdiction over interstate telemarketing calls, Joint
Petitioners contend that the Commission cannot lawfully delegate that
jurisdiction to the states.[^12] Joint Petitioners assert that
"acknowledging the Commission's exclusive jurisdiction over interstate
telemarketing" would not deprive states of their ability to protect
their residents from unwanted interstate telephone solicitations.[^13]
Joint Petitioners note that the TCPA both allows state attorneys general
to enforce federal telemarketing rules in federal court and "preserves
the right of state attorneys general to proceed in state court against
telemarketers 'on the basis of an alleged violation of any general civil
or criminal statute of such State.'" [^14] Thus, Joint Petitioners
contend, the TCPA does not interfere with state police powers or
long-arm statutes, which are used to protect consumers generally against
fraud.[^15]

If the Commission determines that the Communications Act, as amended by
the TCPA, does not already bar states from regulating interstate
telemarketing, Joint Petitioners argue, in the alternative, that the
Commission should exercise its own authority to "categorically preempt"
state regulation of interstate telemarketing calls.[^16] Joint
Petitioners urge the Commission to categorically preempt all state
regulation of interstate telemarketing on the basis that such regulation
is "inconsistent with the sound, pro-competitive policy of prohibiting
multiple, inconsistent regulation."[^17]

Pursuant to Sections 1.415 and 1.419 or the Commission's rules, 47
C.F.R. §§ 1.415, 1.419, interested parties may file comments in this
proceeding on or before the 30^th^ day after publication of this Public
Notice in the Federal Register, and reply comments may be filed on or
before the 50^th^ day after publication of this Public Notice in the
Federal Register. [When filing comments, please reference CG Docket No.
02-278]{.underline}. Comments may be filed using the Commission's
Electronic Comment Filing System (ECFS) or by filing paper copies. *See
Electronic Filing of Documents in Rulemaking Proceedings,* 63 Fed. Reg.
24121 (1998). Comments filed through the ECFS can be sent as an
electronic file via the Internet to
<http://www.fcc.gov/e-file/ecfs.html>. Generally, only one copy of an
electronic submission must be filed. In completing the transmittal
screen, commenters 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 for e-mail comments, commenters should send e-mail to
<ecfs@fcc.gov>, and should include the following words in the body of
the message, "get form \<your e-mail address\>." A sample form and
directions will be sent in reply.

Parties who choose to file by paper must send an original and four (4)
copies of each filing. Filings can be sent by hand or messenger
delivery, by electronic media, 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). The
Commission's contractor, Natek, Inc., will receive hand-delivered or
messenger-delivered paper filings or electronic media for the
Commission's Secretary at 236 Massachusetts Avenue, N.E., Suite 110,
Washington, D.C. 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 entering the
building. Commercial and electronic media sent by 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 mail, Express Mail, and Priority Mail should be addressed to
445 12^th^ Street, S.W., Washington, D.C. 20554. All filings must be
addressed to the Commission's Secretary, Marlene H. Dortch, Office of
the Secretary, Federal Communications Commission, 445 12^th^ Street, SW,
Room TW-B204, Washington, DC 20554.

This proceeding shall be treated as a "permit but disclose" proceeding
in accordance with the Commission's *ex parte* rules, 47 C.F.R. §
1.1200. 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. See 47 C.F.R. § 1.1206(b).
Other rules pertaining to oral and written *ex parte* presentations in
permit-but-disclose proceedings are set forth in section 1.1206(b) of
the Commission's rules, 47 C.F.R. § 1.1206(b).

The full text of this document and copies of any subsequently filed
documents in this matter will be available for public inspection and
copying during regular business hours at the FCC Reference Information
Center, Portals II, 445 12^th^ Street, S.W., Room CY-A257, Washington,
DC 20554, (202) 418-0270. This document may be purchased from the
Commission's duplicating contractor, Best Copy and Printing, Inc.,
Portals II, 445 12^th^ Street, SW, Room CY-B402, Washington, DC 20554.
Customers may contact BCPI, Inc. at their web site:
[www.bcpiweb.com](http://www.bcpiweb.com/) or by calling 1-800-378-3160.

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

**FOR FURTHER INFORMATION CONTACT:** Kelli Farmer, Consumer &
Governmental Affairs Bureau, Federal Communications Commission,
202-418-2512 (voice), <Kelli.Farmer@fcc.gov>.

-FCC-

[^1]: *See* Alliance Contact Services, *et al*. Petition for Declaratory
    Ruling that the FCC has Exclusive Regulatory Jurisdiction Over
    Interstate Telemarketing, filed April 29, 2005 ("Joint Petition").

[^2]: Telephone Consumer Protection Act of 1991, Pub. L. No. 102-243,
    105 Stat. 2394 (1991), *codified at* 47 U.S.C. § 227.

[^3]: Joint Petition at i. Joint Petitioners assert that their proposed
    approach would not interfere with states' authority to enforce any
    state statute of general applicability against interstate
    telemarketers. Joint Petition at ii.

[^4]: We note that the Consumer & Governmental Affairs Bureau is
    releasing contemporaneously with this Public Notice two additional
    public notices seeking public comment on earlier-filed petitions for
    declaratory ruling that raise preemption-related issues. *See
    Consumer & Governmental Affairs Bureau Reopens Public Comment Period
    for Petitions for Declaratory Ruling Relating to Preemption of State
    Telemarketing Laws*, Public Notice, CG Docket No. 02-278, DA 05-1347
    (rel. May 13, 2005) (reopening comment cycles relating to six
    petitions for declaratory ruling in which petitioners seek
    Commission preemption of state telemarketing laws); *Consumer &
    Governmental Affairs Bureau Seeks Comment on Petition for
    Declaratory Ruling on Preemption of California Telemarketing Rules*,
    Public Notice, CG Docket No. 02-278, DA 05-1348 (rel. May 13, 2005)
    (seeking comment on petition for declaratory ruling in which
    petitioner asks Commission *not* to preempt particular provisions of
    California's telemarketing laws).

[^5]: Joint Petition at 7.

[^6]: Joint Petition at 8. *See Rules and Regulations Implementing the
    Telephone Consumer Protection Act of 1991*, Report and Order, CC
    Docket No. 02-278, FCC 03-153, 18 FCC Rcd 14014 (2003) ("*TCPA
    Order*").

[^7]: Joint Petition at i, 9-22.

[^8]: Joint Petition at ii.

[^9]: Joint Petition at 6.

[^10]: Joint Petition at 33-36.

[^11]: Joint Petition at 35 (emphases omitted)

[^12]: Joint Petition at 33.

[^13]: Joint Petition at ii, 40.

[^14]: Joint Petition at 40, *citing* 47 U.S.C. § 227(f)(1),(2) & (6).

[^15]: Joint Petition at 40.

[^16]: Joint Petition at 42.

[^17]: Joint Petition at 42-44, *citing* *City of New York v. FCC*, 486
    U.S. 57, 64 (1988), and *Vonage Holdings Corp.*, Memorandum Opinion
    and Order, 19 FCC Rcd 22404 (2004).