**Before the**

**FEDERAL COMMUNICATIONS COMMISSION**

**Washington, D.C. 20554**

In the Matter of )

)

Consumer.Net, )

)

Complainant, )

)

v\. ) File No. E-98-46

)

AT&T Corp., )

)

Defendant. )

**ORDER**

Adopted: December 17, 1999 Released: December 28, 1999

**I. INTRODUCTION**

By the Commission:

In this order we grant in part and deny in part a formal complaint filed
by Consumer.Net, *pro se*, against AT&T Corporation (AT&T) pursuant to
section 208 of the Communications Act of 1934, as amended (the Act).
Consumer.Net seeks a Commission order (1) declaring that AT&T\'s
telemarketing practices at issue violated the Telephone Consumer
Protection Act of 1991 (TCPA)[^1] and certain of the Commission\'s rules
and orders implementing the TCPA; (2) enjoining AT&T from conducting
further telephone solicitations; and (3) imposing fines of approximately
\$100 million against AT&T.[^2] For the reasons discussed below, we find
that, on one occasion, AT&T violated the Commission\'s rules by failing
to make a copy of its do-not-call policy available upon demand. We also
find that, on one occasion, AT&T violated the Commission\'s rules by
initiating a telephone solicitation despite a residential telephone
subscriber\'s prior do-not-call request. We further find that, with
respect to all of the other alleged violations of law, Consumer.Net has
failed to satisfy its burden of proof.

**II. BACKGROUND**

**A. The Telephone Consumer Protection Act**

On December 20, 1991, Congress enacted the TCPA, which amended Title II
of the Act by adding a new section, 47 U.S.C. § 227. The TCPA, among
other things, directed the Commission to establish regulations to
protect the privacy rights of citizens by restricting the use of the
telephone network for unsolicited advertising.[^3] In particular, the
TCPA instructed the Commission to adopt rules \"concerning the need to
protect residential telephone subscribers\' privacy rights to avoid
receiving telephone solicitations to which they object.\"[^4]

As directed by Congress, the Commission established rules governing
telephone solicitations that balanced the privacy concerns that the TCPA
seeks to protect against the continued viability of the telemarketing
industry.[^5] As part of this rulemaking, the Commission concluded that
requiring the maintenance of company-specific do-not-call lists would be
the most effective and efficient means for telephone subscribers to
avoid unwanted telephone solicitations.[^6] Thus, the Commission adopted
a rule requiring that no person or entity shall engage in any telephone
solicitation unless such person or entity has instituted procedures for
maintaining a list of residential subscribers who do not wish to be
called by that person or entity (do-not-call list).[^7]

The Commission also adopted specific rules for establishing and
maintaining such company-specific do-not-call lists.[^8] The
Commission\'s rules require, among other things, that persons or
entities making telephone solicitations to residential telephone
subscribers must: (1) develop written policies for maintaining their
do-not-call lists and make such written policies available upon demand;
(2) inform and train their personnel engaged in any aspect of telephone
solicitation about the existence and use of the do-not-call list; (3)
place consumers that request not to receive further telephone
solicitations on a do-not-call list; (4) identify themselves and the
entity on whose behalf the telephone solicitation is made to called
parties; and (5) honor each do-not-call request for 10 years from the
time the request is made. The Commission further concluded that, in the
absence of a specific request to the contrary, a residential telephone
subscriber\'s do-not-call request generally applies only to the
particular business entity making the call (or on whose behalf the call
is being made), rather than to entities affiliated with the soliciting
entity.[^9] Finally, our rules establish that the entity on whose behalf
the solicitation is made ultimately will be liable for the maintenance
of its do-not-call list and for any problems arising in the maintenance
and accuracy of the list.[^10]

**B. Consumer.Net\'s Complaint**

Consumer.Net alleges that AT&T violated the TCPA and Commission rules
regarding telephone solicitations \"in virtually every aspect of \[its\]
telemarketing program.\"[^11] Consumer.Net bases these allegations on
telephone solicitations from AT&T (or AT&T\'s agent) to Consumer.Net\'s
director, Russell Smith (Smith), and two additional residential
telephone subscribers, Robert Biggerstaff (Biggerstaff) and Richard
Zelma (Zelma).[^12] In particular, Consumer.Net contends that AT&T
violated the TCPA and Commission rules by failing: (1) to provide
AT&T\'s written do-not-call policy to Biggerstaff and Zelma upon
demand;[^13] (2) to properly record Biggerstaff and Zelma\'s do-not-call
requests;[^14] (3) to apply Zelma\'s do-not-call request to AT&T\'s
affiliated entities;[^15] and (4) to honor Zelma\'s do-not-call request
for 10 years.[^16]

**III. DISCUSSION**

**A. The Complainant Has the Burden of Proof in a Formal Complaint
Proceeding.**

It is well established that the complainant has the burden of proof in a
formal complaint proceeding under section 208 of the Act.[^17] Thus, in
order to prevail, the complainant must demonstrate by a preponderance of
the evidence that the alleged violation of the Act or the Commission\'s
rules actually occurred.[^18] In other words, a complainant must provide
facts, which if true, are sufficient to constitute a violation of the
Act or of a Commission rule or orders,[^19] and such facts must be
persuasively supported by affidavit or other relevant
documentation.[^20]

Although Consumer.Net\'s complaint alleged violations of the Act and the
Commission\'s rules and orders, it contained neither a complete
statement of the facts on which the complaint was based nor
documentation sufficient to substantiate its allegations. Nonetheless,
because Consumer.Net pursued this action as a *pro se* complainant, the
former Enforcement Division of the Common Carrier Bureau (Division)
endeavored to ensure that Consumer.Net had adequate opportunity to
explain its allegations and to provide the necessary evidence to support
its claims. Towards that end, the Division held status conferences with
the parties on August 11, 1998 and on August 12, 1998. During these
status conferences, the Division explained what information would be
necessary to support the claims and defenses.[^21] The Division then
permitted the parties to submit briefs in order to elucidate and support
their positions as completely as possible.[^22]

**B.Consumer.Net Largely Has Not Met Its Burden of Proving that AT&T
Failed to Make AT&T\'s Written Do-Not-Call Policy Available on Demand.**

Section 64.1200(e)(2)(i) of the Commission\'s rules requires, *inter
alia*, that \"\[p\]ersons or entities making telephone solicitations
must have a written policy, available upon demand, for maintaining a
do-not-call list.\"[^23] Consumer.Net contends that AT&T violated that
rule in several ways. More specifically, Consumer.Net argues that: (1)
AT&T\'s 30-day delay in sending its do-not-call policy to Zelma after
one of his requests was unreasonable; (2) AT&T failed to provide either
Biggerstaff or Zelma with a copy of AT&T\'s do-not-call policy upon
certain of their requests; and (3) AT&T\'s provision of a letter to
Biggerstaff and Zelma describing AT&T\'s do-not-call policy does not
constitute the provision of a written copy of AT&T\'s do-not-call
policy.[^24] AT&T denies these allegations and argues, *inter alia*,
that the numerous copies of its do-not-call policy attached to the
complaint refute Consumer.Net\'s allegations that AT&T failed to make
its do-not-call policy available upon demand.[^25] For the reasons
discussed below, we conclude that, with regard to all but one claim,
Consumer.Net has failed to establish that AT&T did not make its
do-not-call policy available on demand.

**1.Consumer.Net has not met its burden of proving that AT&T failed to
make available to Zelma a copy of AT&T\'s do-not-call policy within a
reasonable period after Zelma\'s request on or about July 7, 1997.**

Consumer.Net argues that AT&T violated section 64.1200(e)(2)(i) of the
Commission\'s rules by not making available to Zelma AT&T\'s written
do-not-call policy within a reasonable period after Zelma\'s request on
or about July 7, 1997.[^26] In support of its position, Consumer.Net
contends that AT&T did not send a copy of AT&T\'s do-not-call policy to
Zelma until August 11, 1997, nearly five weeks after Zelma\'s July 7,
1997 request.[^27] Consumer.Net relies on a decision by a California
small claims court, which found that a bank violated section
64.1200(e)(2)(i) of the Commission\'s rules by sending a copy of the
bank\'s do-not-call policy five weeks after request therefor.[^28]

Section 64.1200(e)(2)(i) of the Commission\'s rules requires
\"\[p\]ersons or entities making telephone solicitations \[to\] have a
written policy, available upon demand, for maintaining a do-not-call
list.\"[^29] Neither the Commission\'s rules nor the Commission\'s
orders defines the term \"available upon demand.\" Therefore, whether an
entity has made a written copy of its do-not-call policy \"available
upon demand\" requires an analysis of the facts and circumstances of
each particular case. Based on the facts before us, we find that AT&T in
this instance did make a copy of its do-not-call policy available to
Zelma upon demand within the meaning of section 64.1200(e)(2)(i).

Consumer.Net states that Zelma requested a copy of AT&T\'s do-not-call
policy on July 7, 1997, and that AT&T did not send its policy to Zelma
until August 11, 1997.[^30] Consumer.Net\'s own documentation, however,
refutes its claim that AT&T did not send the policy to Zelma until
August 11, 1997. The record indicates that AT&T responded to Zelma\'s
July 7, 1997 request by sending its do-not-call policy to Zelma on July
14, 1997.[^31] The record indicates that Zelma again contacted AT&T to
request a copy of AT&T\'s do-not-call policy on July 30, 1997.[^32] On
August 11, 1997, AT&T sent its do-not-call policy to Zelma in response
to his July 30, 1997 request.[^33] In sum, the record illustrates that,
contrary to Consumer.Net\'s contention, AT&T\'s August 11, 1997 letter
was a timely response to Zelma\'s July 30, 1997 request, rather than an
untimely response to Zelma\'s July 7, 1997 request. Moreover, we find
that AT&T\'s response times of seven days and twelve days, respectively,
are reasonable, given the facts and circumstances in this case. Indeed,
Consumer.Net does not contend that such response times are unreasonable.
Accordingly, we find that AT&T made a copy of its do-not-call policy
available to Zelma upon demand in accordance with section
64.1200(e)(2)(i) of the Commission\'s rules.[^34]

**2.Consumer.Net has met its burden of proving that AT&T failed to make
AT&T\'s do-not-call policy available to Biggerstaff upon his May 8, 1997
demand.**

Consumer.Net contends that AT&T violated the Commission\'s rules and
orders by not making available to Biggerstaff AT&T\'s written
do-not-call policy upon demand.[^35] In response, AT&T argues that
Biggerstaff never requested AT&T\'s do-not-call policy.[^36] For the
reasons discussed below, we find that AT&T failed to make a copy of its
do-not-call policy available to Biggerstaff upon his demand, in
violation of the Commission\'s rules.

Consumer.Net contends that (1) Biggerstaff requested a copy of AT&T\'s
do-not-call policy during the course of a May 8, 1997 telephone
solicitation, and (2) AT&T failed to honor Biggerstaff\'s request.[^37]
In support of this contention, Consumer.Net submitted a cassette tape
that contains a recording of a May 8, 1997 telephone solicitation from
an AT&T representative to Biggerstaff.[^38] AT&T does not contest the
accuracy or the authenticity of the Biggerstaff Tape.[^39] AT&T also
does not contest that it failed to provide Biggerstaff with its
do-not-call policy in response to the May 8, 1997 call. AT&T argues only
that Biggerstaff did not make an unequivocal request for its do-not-call
policy during the May 8, 1997 call.[^40]

We find that the Biggerstaff Tape demonstrates that Biggerstaff did
request a copy of AT&T\'s do-not-call policy on May 8, 1997.
Specifically, Biggerstaff stated to the AT&T telemarketer: \"I would
like you to send me a copy of your do-not-contact policy.\"[^41] In
response, the AT&T telemarketer stated that she was unsure whether she
had the authority to send the policy but offered to check with her
supervisor. The telemarketer\'s authority to provide AT&T\'s do-not-call
policy, however, should not have been a subject for discussion; AT&T
should have had procedures in place to process such requests, and the
telemarketer should have known of them. Thus, we find that AT&T violated
section 64.1200(e)(2)(i) of the Commission\'s rules by not making a copy
of AT&T\'s do-not-call policy available to Biggerstaff upon his May 8,
1997 demand.

**3.Consumer.Net has not met its burden of proving that AT&T failed to
make AT&T\'s do-not-call policy available to Zelma upon demand.**

Consumer.Net also contends that AT&T failed to honor a February 24, 1998
request from Zelma for AT&T\'s do-not-call policy.[^42] In response,
AT&T states that it provided Zelma a copy of its do-not-call policy on
several occasions.[^43] Consumer.Net\'s only record evidence that Zelma
requested AT&T\'s do-not-call policy in this instance is Zelma\'s
written but unsworn assertion that he \"received \[a\] solicitation for
the AT&T Universal Card\" on February 24, 1998, and \"called the number
provided to complain \[and\] asked for the written policy but never
received one.\"[^44]

We conclude that Consumer.Net has not provided sufficient evidence to
satisfy its burden of proving that Zelma indeed contacted AT&T on
February 24, 1998 and requested a copy of AT&T\'s do-not-call policy.
Although the Division met with Consumer.Net on several occasions to
explain the evidence necessary to support a claim and allowed
Consumer.Net to file additional supporting materials, Consumer.Net has
failed to provide the information necessary to support its claim. First,
Consumer.Net did not provide a sworn statement (or statement filed under
penalty of perjury) from Zelma. In any event, Zelma\'s statement does
not provide essential corroborative information such as the particular
AT&T number contacted, the specific AT&T division called, or the name of
the person with whom he allegedly spoke. Such information also is
essential to providing the defendant with a reasonable opportunity to
investigate, and thereby rebut, the allegations. Finally, the record
indicates that AT&T on two previous occasions provided Zelma with copies
of its do-not-call policy promptly upon Zelma\'s request.[^45] We find,
therefore, that Zelma\'s unsworn statement, without any additional
evidence substantiating that Zelma contacted AT&T to request a copy of
AT&T\'s do-not-call policy on February 24, 1998, is insufficient to
prove by a preponderance of the evidence that Zelma actually made such a
request. Accordingly, we conclude that Consumer.Net has failed to meet
its burden of proof that AT&T violated section 64.1200(e)(2)(i) of the
Commission\'s rules by not providing to Zelma AT&T\'s do-not-call policy
upon a demand allegedly made on February 24, 1998.

**4.Consumer.Net has failed to demonstrate that two of AT&T\'s letters
to Zelma are insufficient to constitute AT&T\'s do-not-call policy.**

Consumer.Net contends that AT&T violated section 64.1200(e)(2)(i) of the
Commission\'s rules by sending Zelma two letters describing AT&T\'s
do-not-call policy instead of sending AT&T\'s actual do-not-call
policy.[^46] Consumer.Net argues that the AT&T letters are not
\"sufficient in scope to describe AT&T\'s do not call policy,\" or to
inform consumers how they can be placed on AT&T\'s do-not-call
list.[^47]

Based on our review of the two AT&T letters in question, we reject
Consumer.Net\'s contentions in this regard. There is no evidence to
suggest that AT&T\'s letters to Zelma do not contain its actual policy.
In any event, the letters sufficiently detail AT&T\'s method and policy
for maintaining a do-not-call list. In particular, the letters state how
AT&T processes a do-not-call request. The letters also state that the
consumer will receive a written confirmation of his or her do-not-call
request and provide an address to which to direct any inquiries
regarding its do-not-call list.[^48] We thus conclude that AT&T complied
with the requirement to make a do-not-call policy available upon
demand.[^49]

**C.Consumer.Net Has Not Met Its Burden of Proving that AT&T Failed to
Properly Record Biggerstaff\'s Do-Not-Call Requests or that AT&T Failed
to Honor Biggerstaff\'s Do-Not-Call Requests for a Period of 10 Years.**

Section 64.1200(e)(2) of the Commission\'s rules requires that in
response to a do-not-call request, the solicitor must, *inter alia*,
record the solicitee\'s name and the telephone number called.[^50] Thus,
the do-not-call request applies to a particular telephone number---not
all telephone numbers associated with the person\'s name---absent a
specific request to the contrary. The solicitor must then honor the
do-not-call request for ten years from the time the request is
made.[^51] Moreover, absent a specific request or reasonable expectation
to the contrary, the do-not-call request applies only to the particular
business entity making the call, and not ordinarily to affiliated
entities.[^52]

Consumer.Net alleges that AT&T continued to place telephone
solicitations to Biggerstaff after he requested to be placed on AT&T\'s
long distance do-not-call list, in violation of section 64.1200(e)(2) of
the Commission\'s rules. In particular, liberally construing
Consumer.Net\'s *pro se* pleading, Consumer.Net apparently contends that
AT&T: (1) failed to record Biggerstaff\'s do-not-call requests, in
violation of section 64.1200(e)(2)(iii), and (2) failed to honor
Biggerstaff\'s do-not-call requests for ten years from the time the
requests were made, in violation of section 64.1200(e)(2)(vi).[^53]
Consumer.Net bases its claims on evidence in the record regarding
telephone calls to certain of Biggerstaff\'s telephone numbers on the
following dates: May 8, 1997; May 6, 1998; and June 4, 1998.[^54] On
each occasion, AT&T placed the telephone solicitation calls to offer the
same product, AT&T long distance.[^55] Although the Division met with
Consumer.Net on several occasions to explain the evidence necessary to
support a claim and allowed Consumer.Net to file additional information
to support its position, Consumer.Net submitted neither a sworn
statement from the consumer nor any corroborating evidence.

[Telephone Solicitation to (803) XXX-3805 on May 8, 1997]{.underline}.
Consumer.Net contends that AT&T initiated a telephone solicitation to
Biggerstaff on May 8, 1997, in violation of Biggerstaff\'s prior
do-not-call requests.[^56] In response, AT&T states that Biggerstaff did
not request that any of his telephone numbers be placed on any AT&T
do-not-call list until July 28, 1998.[^57]

To support its claim that Biggerstaff requested that telephone number
(803) XXX-3805 be placed on AT&T\'s long distance services do-not-call
list prior to May 8, 1997, Consumer.Net relies solely on Biggerstaff\'s
June 18, 1998 affidavit. Biggerstaff\'s affidavit states, in pertinent
part, \"\[p\]rior to November 4, 1996, I received multiple telephone
solicitations at my home by or on behalf of AT&T . . . . In each and
every one of these calls . . . I requested the caller to not call me
again.\"[^58]

We find that Biggerstaff\'s affidavit is insufficient to demonstrate
that he requested that telephone number (803) XXX-3805 be placed on
AT&T\'s long distance services do-not-call list prior to receiving the
May 8, 1997 telephone solicitation. Biggerstaff does not state which of
his several telephone numbers he requested be placed on AT&T\'s
do-not-call list,[^59] nor does he provide any information as to when
these requests were made, other than to state that they were made prior
to November 4, 1996.[^60] In addition, Biggerstaff does not indicate
which AT&T entity (e.g., AT&T long distance services, AT&T International
Services) solicited him in the telephone solicitations prior to May 8,
1997, or which AT&T entity he requested not to contact him. We find that
such vague assertions do not provide defendant with a reasonable basis
to investigate or rebut the allegations. We therefore find that
Consumer.Net has not met its burden of substantiating this claim.

[Telephone Solicitation to (803) XXX-8524 on May 6, 1998]{.underline}.
Consumer.Net also contends that AT&T\'s May 6, 1998 telephone
solicitation to Biggerstaff\'s telephone number (803) XXX-8524 violated
Biggerstaff\'s do-not-call request made on May 8, 1997.[^61] AT&T again
argues that Biggerstaff did not request that telephone number (803)
XXX-8524 be placed on AT&T\'s do-not-call list until July 28, 1998.[^62]

Consumer.Net relies solely on Biggerstaff\'s June 18, 1998 affidavit,
which states, in pertinent part, that he requested to be placed on
AT&T\'s do-not-call list during the course of the May 8, 1997 telephone
solicitation.[^63] The record shows, however, that AT&T made the May 8,
1997 telephone solicitation to telephone number (803) XXX-3805, not the
telephone number contacted during the May 6, 1998 telephone
solicitation, which the record shows to have been made to (803)
XXX-8524.[^64] As stated above, absent a particular request otherwise, a
do-not-call request applies to a specific telephone number, not to all
telephone numbers associated with the requestor.[^65] Consumer.Net has
not demonstrated that Biggerstaff specifically requested that telephone
number (803) XXX-8524 be placed on any AT&T do-not-call list prior to
receiving the May 6, 1998 telephone solicitation. In fact, the
Biggerstaff Tape indicates that he did not request that any particular
number, or all of his telephone numbers, be placed on AT&T\'s
do-not-call list.[^66] Therefore, Consumer.Net has not met its burden of
demonstrating that Biggerstaff requested telephone number (803) XXX-8524
be placed on AT&T\'s do-not-call list prior to receiving the May 6, 1998
telephone solicitation.

[Telephone Solicitation to (803) XXX-8524 on June 4, 1998]{.underline}.
Consumer.Net also contends that AT&T initiated a telephone solicitation
on June 4, 1998, to Biggerstaff\'s telephone number (803) XXX-8524, in
violation of Biggerstaff\'s do-not-call request made on May 6,
1998.[^67] To support its contention that Biggerstaff received a
telephone solicitation on June 4, 1998, Consumer.Net provides a tape
recording of the June 4, 1998 telephone solicitation. The recording
indicates that AT&T\'s telemarketer reached Biggerstaff\'s answering
machine on May 6, 1998. Consumer.Net contends that Biggerstaff\'s
answering machine greeting contained a request to any telemarketer to be
placed on that telemarketer\'s do-not-call list.

We find that Consumer.Net has failed to demonstrate that Biggerstaff
requested that telephone number (803) XXX-8524 be placed on AT&T\'s
do-not-call list prior to receiving the June 4, 1998 telephone
solicitation. Consumer.Net relies solely on the assumption that the
caller listened to the following recorded message, *in its entirety*,
which was conveyed by Biggerstaff\'s answering machine:

Hello \[brief pause\] . . . excuse me, could you please state who is
calling \[brief pause\]. I\'m sorry, you\'ve gotten the machine. If this
is a solicitation call, please wait until the end of this message and
leave all disclosures as required by the telemarketing statute, and
place this number on your do-not-call list.[^68]

The record does not indicate that the AT&T telemarketer remained on the
line long enough to hear Biggerstaff\'s entire recorded message. As the
above quotation reveals, Biggerstaff does not request to be placed on
the telemarketer\'s do-not-call list until the very end of the message,
and after notifying the caller that s/he has received an answering
machine. We cannot simply assume that the caller actually heard the
do-not-call request. Accordingly, we conclude that Consumer.Net has not
met its burden of proving that AT&T failed to honor Biggerstaff\'s
alleged May 6, 1998 do-not-call request by making the June 4, 1998
telephone solicitation.[^69]

**D.Consumer.Net Has Met its Burden of Proving that AT&T Violated the
Commission\'s Rules by Initiating a Telephone Solicitation to Zelma on
October 29, 1997, in Violation of Zelma\'s Prior Company-Wide**

**Do-Not-Call Request.**

The Commission\'s rules mandate that, \"in the absence of a specific
request 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 the call is being 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.\"[^70] Consumer.Net contends that Zelma made a specific
request to be placed on a do-not-call list of all entities affiliated
with AT&T (a company-wide do-not-call list) prior to receiving a
telephone solicitation on October 29, 1997, from Universal Card Services
Corporation (UCS), an AT&T affiliate.[^71] Consumer.Net contends that
AT&T failed to coordinate Zelma\'s AT&T company-wide do-not-call request
among affiliated entities, in violation of section 64.1200(e)(2)(v) of
the Commission\'s rules, and failed to honor Zelma\'s do-not-call
request for \"10 years from the time the request is made,\" in violation
of section 64.1200(e)(2)(vi) of the Commission\'s rules.[^72]

To support its claim, Consumer.Net provides an unsworn statement from
Zelma stating that, prior to June 1997, he requested by mail and phone
to be placed on an AT&T company-wide do-not-call list.[^73] Consumer.Net
also relies on a letter from AT&T to Zelma dated August 11, 1997,
stating that Zelma would be placed on AT&T\'s do-not-call list.[^74]
Consumer.Net contends that the text and letterhead of this letter
indicate that Zelma requested placement \"on a\[n\] AT&T list, not a
specific company \[list\] within AT&T.\"[^75] In response, AT&T states
that Zelma never requested placement on an AT&T company-wide do-not-call
list.[^76] AT&T also states that Zelma did not request placement on
UCS\'s do-not-call list until September 7, 1997, which makes UCS\'s
solicitation \"only\" seven weeks later lawful.[^77] AT&T further states
that the \"use of the AT&T name by an AT&T business entity does not
automatically lead a consumer to reasonably expect that a do-not-call
request would apply to all affiliated entities.\"[^78]

Zelma\'s statement that he requested placement on an AT&T company-wide
do-not-call list, in conjunction with the August 11, 1997 letter from
AT&T to Zelma, persuades us that Zelma requested placement on AT&T\'s
company-wide do-not-call list prior to August 11, 1997. In this
situation, unlike the situation involving Zelma\'s February 24, 1998
telephone call,[^79] Zelma\'s unsworn statement is corroborated by
wholly independent and probative evidence: AT&T\'s own August 11, 1997
letter to Zelma.[^80]

The August 11, 1997 letter provides corroboration in several ways. First
of all, the letter bears generic AT&T letterhead. Moreover, nowhere in
the text of the letter does AT&T refer to a specific AT&T entity. In
fact, the text of the letter refers generically to \"AT&T Products and
Services,\" not specifically to any particular AT&T product or service.
Furthermore, this letter states that \"\[r\]ecently you contacted AT&T
and indicated that you do not wish to be contacted regarding *any*
marketing communications. . . . We are taking the necessary steps to
remove your account information from our future communications.\"[^81]
We find that this letter both supports a conclusion that Zelma requested
to be placed on all AT&T corporate do-not-call lists and that a
reasonable consumer would understand that AT&T had done so.

Indeed, in contrast to these global, generic characteristics of the
August 11, 1997 letter from AT&T to Zelma, evidence on the record
indicates that AT&T does use entity-specific letterhead (e.g., AT&T long
distance services, AT&T international consumer long distance) to respond
to entity-specific do-not-call requests.[^82] For example, in response
to an inquiry, Zelma received a letter specifically from AT&T
International Consumer Long Distance. This letter contains letterhead
specifically referencing \"AT&T International Consumer Long Distance\"
and mentions the specific service within the letter.[^83]

The foregoing evidence satisfies Consumer.Net\'s burden of proving that
Zelma requested to be placed on an AT&T company-wide do-not-call list
prior to August 11, 1997. Therefore, we find that the October 29, 1997
telephone solicitation by UCS violated Zelma\'s request. We thus find
that AT&T failed: (1) to apply Zelma\'s do-not-call request to
affiliated entities, in violation of section 64.1200(e)(2)(v) of the
Commission\'s rules; (2) to properly record Zelma\'s request, in
violation of section 64.1200(e)(2)(iii) of the Commission\'s rules; and
(3) to honor Zelma\'s request for 10 years from the time the request was
made, in violation of section 64.1200(e)(2)(vi).

**E.Consumer.Net Has Met Its Burden of Proving that AT&T Violated the
Commission\'s Rules by Initiating a Telephone Solicitation to Michele
Zelma on February 24, 1998.**

Consumer.Net also argues that AT&T (via its affiliate, UCS) initiated a
telephone solicitation on February 24, 1998, in violation of Mr.
Zelma\'s prior do-not-call request.[^84] In response, AT&T contends that
the telephone solicitation did not violate Mr. Zelma\'s do-not-call
request because the solicitation was specifically directed to *Michele*
Zelma (not Richard Zelma).[^85]

Because we find that the Commission\'s rules require do-not-call lists
to be maintained on a telephone number basis (rather than requiring
requests from every individual at a particular residence), we conclude
that AT&T\'s February 24, 1998 telephone solicitation violated the
Commission\'s rules and orders. Both section 227 and the Commission\'s
rules mandate certain obligations to protect the rights of residential
telephone subscribers. Specifically, section 64.1200(e)(2)(iii) of the
Commission\'s rules requires telemarketers to \"place the *subscriber\'s
name and telephone number* on the do-not-call list at the time the
request is made.\"[^86] Additionally, in the *TCPA Memorandum Opinion
and Order*, the Commission recognized that some consumers wishing to be
placed on a do-not-call list will not want to provide telemarketers with
their name. The Commission emphasized that such consumers must still be
placed on the do-not-call list based on their telephone number and
explained that \"interpreting the rule more narrowly would defeat the
objective of protecting consumer privacy.\"[^87] For the same reason, we
find that when a telemarketer receives a request that a particular
telephone number be placed on its do-not-call list, our rules require
the telemarketer to comply with that request by placing the
\"subscriber\'s name *and telephone number* on the do-not-call list.\"
The placement of the number on the do-not-call list may not be
circumscribed by the telemarketer\'s claim that it was trying to reach
someone else at that same number.

AT&T acknowledges that some of its do-not-call lists---such as those for
long distance services---are maintained by number (and name if given),
because AT&T markets those services to households, not individuals. In
contrast, AT&T states that the do-not-call list for AT&T\'s affiliate
UCS is maintained by *name and number*, because AT&T markets this
particular service to individuals, not households.[^88] AT&T argues that
such a distinction is consistent with our rules.[^89] We disagree. There
is nothing in either section 227 of the Act or the Commission\'s rules
that varies a telemarketer\'s do-not-call list obligations depending
upon the service being marketed. Both section 227 of the Act and the
Commission\'s rules grant rights to consumers that only can be
effectuated if a single request from someone in a particular household
suffices to stop future calls to the same number. Indeed, the
distinction proffered by AT&T potentially would eviscerate the policy
goals of the statute in protecting telephone subscribers from unwanted
telemarketing calls by creating a virtually irrefutable defense that the
telemarketer was trying to reach \"someone else\" at that number.

We add that our interpretation of section 64.1200(e)(2)(iii) is
consistent with our holding above that a do-not-call request applies to
a particular telephone number, not all numbers associated with that
person\'s name, absent a specific request to the contrary.[^90] In
contrast, we find AT&T\'s position in this instance to be inconsistent
with its position on certain other counts in this complaint. On certain
counts in this complaint, such as Consumer.Net\'s allegations that AT&T
failed to honor Biggerstaff\'s do-not-call requests, we found in favor
of AT&T, because Consumer.Net had not demonstrated that the telephone
numbers to which AT&T made the allegedly violative telephone
solicitations had been requested to be placed on a particular AT&T
do-not-call list. We reached this conclusion, in part, even though it
was conceded that multiple telephone lines belonged to the same
subscriber, because we found that---absent a specific request to the
contrary---a do-not-call request applies to a particular telephone
number. Our conclusion in this instance---that a do-not-call request
applies by *number*---is based upon the same premise, and consistent
with our overall policy goals of the statute and the rules, to protect
individuals from unwanted telephone solicitations.

AT&T admits that it placed Mr. Zelma\'s telephone number on the UCS
do-not-call list on September 7, 1997, and we have found that Mr. Zelma
requested to be placed on *all* AT&T do-not-call lists prior to August
11, 1997.[^91] Accordingly, we find that AT&T violated section
64.1200(e)(2)(vi) by placing a telephone solicitation to Michele Zelma
on February 24, 1998.

**F. Miscellaneous Claims**

In its complaint, Consumer.Net also appears to allege that AT&T (1)
initiated telephone solicitations to Smith in violation of his
do-not-call request; (2) failed to provide a copy of AT&T\'s do-not-call
policy to Smith; and (3) improperly trained its telemarketers.[^92]
Consumer.Net has not provided any factual information, either in the
complaint itself or anywhere else in the record, to support any of these
claims. Therefore, even though we liberally construe *pro se* pleadings,
we cannot construe Consumer.Net\'s pleadings to have met the burden of
proof applicable to the foregoing claims.[^93] Accordingly, we hereby
deny all of these claims.

**IV. REQUESTS FOR RELIEF**

Consumer.Net requests that the Commission assess forfeitures against
AT&T for violation of the Commission\'s rules and orders, issue a cease
and desist order to prevent AT&T from conducting further telephone
solicitations in the United States, and order AT&T to pay damages in the
amount of \$1,500 per violation.[^94] For the following reasons, we deny
all of Consumer.Net\'s requests for relief.

Sections 206-208 of the Act establish private remedies for parties
aggrieved by carriers, while section 503(b) of the Act gives the
Commission the discretion to assess forfeitures payable to the United
States.[^95] Accordingly, a formal complaint proceeding under sections
206-208 of the Act is not an appropriate venue for the Commission\'s
imposition of a forfeiture. If the Commission determines that AT&T\'s
telephone solicitation practices warrant the issuance of a Notice of
Apparent Liability for Forfeiture under section 503 of the Act, the
Commission will do so in a separate proceeding.[^96] Consumer.Net\'s
request that we prohibit AT&T from telephone solicitations is denied,
because Consumer.Net has not shown widespread violations or the
potential for future misconduct or harm necessary to warrant such
relief.

We also deny Complainant\'s claim for damages. As explained above,
although Consumer.Net has shown that AT&T violated the Commission\'s
rules in relation to Biggerstaff and Zelma, Consumer.Net has not shown
that AT&T violated the Commission\'s rules in its dealings with
Consumer.Net itself. Consumer.Net has standing to recover damages only
for harm to itself, not for harm suffered by others.[^97] This
conclusion is premised on a determination that Biggerstaff and Zelma are
not parties to this proceeding. It follows from such a conclusion, of
course, that nothing in this order affects their rights to seek damages
directly either by filing a complaint with the Commission or with a
court of proper jurisdiction.[^98]

**V. CONCLUSION**

For the reasons discussed above, we conclude that (1) AT&T violated
section 64.1200(e)(2)(i) by failing to make its do-not-call policy
available to Biggerstaff upon his May 8, 1997 demand; (2) AT&T violated
section 64.1200(e)(2)(iii) by failing to properly record Zelma\'s
do-not-call request on or about February 24, 1998; (3) AT&T violated
section 64.1200(e)(2)(v) by failing to apply Zelma\'s AT&T company-wide
do-not-call request to affiliated entities; (4) AT&T violated section
64.1200(e)(2)(vi) by failing to honor Zelma\'s do-not-call request for a
period of 10 years from the time the request was made; and (5)
Consumer.Net has failed to show by a preponderance of the evidence that
AT&T violated the Act or the Commission\'s rules or orders in any other
respects.

**VI. ORDERING CLAUSES**

Accordingly, IT IS ORDERED, pursuant to sections 4(i), 4(j), 208, and
227 of the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i),
154(j), 208, and 227 that the complaint filed by Consumer.Net IS GRANTED
IN PART to the extent described herein and otherwise DENIED and
DISMISSED WITH PREJUDICE, and this proceeding is TERMINATED.

IT IS FURTHER ORDERED, pursuant to sections 4(i), 4(j), and 208 of the
Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 154(j), and
208, that AT&T\'s Motion to Dismiss filed on July 13, 1998 IS DENIED.

IT IS FURTHER ORDERED, pursuant to sections 4(i), 4(j), and 208 of the
Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 154(j), and
208, that AT&T\'s Motion to Strike filed on July 31, 1998 IS DENIED.

FEDERAL COMMUNICATIONS COMMISSION

Magalie Roman Salas

Secretary

[^1]: ^?^ 47 U.S.C. § 227.

[^2]: ^?^ *See* Consumer.Net Brief at 14; *see also* Consumer.Net
    Complaint at 5-6 (Complaint).

[^3]: ^?^ 47 U.S.C. § 227. An \"unsolicited advertisement\" is defined
    as \"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.\" 47 U.S.C. § 227(a)(4). The TCPA also restricts the use
    of automatic telephone dialing systems, prerecorded voice messages,
    and telephone facsimile machines for telemarketing purposes. *See
    id.* Those restrictions are not at issue in this proceeding.

[^4]: ^?^ 47 U.S.C. § 227(c)(1).

[^5]: ^?^ *See* H.R. Rep. No. 102-317, 102nd Cong. at 12 (1991) (stating
    that the \"bill makes several findings regarding modern
    telemarketing technology and practices; intrusions upon individual
    privacy rights and public safety concerns; *and the need for a
    federal solution that both protects the privacy rights of individual
    residential telephone subscribers and permits legitimate
    telemarketing practices*) (emphasis added). *See also* *TCPA Report
    and Order*, 7 FCC Rcd at 8752. A \"telephone solicitation\" is
    defined 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, . . . \[not
    including\] 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.

    47 U.S.C. § 227(a)(3). The Commission also adopted rules and
    procedures, *inter alia,* governing solicitations by facsimile
    machines and by autodialers. Those rules are not at issue in this
    proceeding.

[^6]: ^?^ *See id.* at 8765, para. 23.

[^7]: ^?^ 47 C.F.R. § 64.1200(e)(2) (stating that \"no person or entity
    shall initiate any telephone solicitation to a residential telephone
    subscriber . . . unless such person or entity has instituted
    procedures for maintaining a list of persons who do not wish to
    receive telephone solicitations . . . .\").

[^8]: ^?^ *See TCPA Report and Order*, 7 FCC Rcd at 8766, para. 24; *see
    also* 47 C.F.R. §§ 64.1200(e)(2)(i)-(vi).

[^9]: ^?^ *See* 47 C.F.R. § 64.1200(e)(2)(iv); *see also TCPA Report and
    Order*, 7 FCC Rcd at 8767, para. 24.

[^10]: ^?^ *See TCPA Report and Order*, 7 FCC Rcd at 8766, para. 24.

[^11]: ^?^ Complaint at 1. Consumer.Net appears to be an organization
    primarily devoted to curbing unwanted telephone solicitations.
    Consumer.Net did not describe its functions or purposes in either
    its complaint or in subsequent pleadings. Based on information
    gleaned from Consumer.Net\'s webpage, Consumer.Net purports to
    inform consumers about their rights regarding the receipt of
    unwanted telephone solicitations. *See* Consumer.Net\'s web page
    (visited March 3, 1999) \<http://www.consumer-info.org\>. Russell
    Smith is the director of Consumer.Net. *See* Consumer.Net Complaint
    at 6.

[^12]: ^?^ Consumer.Net attached to its complaint supporting factual
    statements from Biggerstaff and Zelma, who are not parties to the
    complaint. Consumer.Net does not allege that it was harmed by the
    allegedly unlawful conduct. *See* 47 U.S.C. § 208 (stating that
    \"\[n\]o complaint shall at any time be dismissed because of the
    absence of direct damage to the complainant.\").

[^13]: ^?^ *See* Consumer.Net Brief at 2, 4, 6.

[^14]: ^?^ *See id*. at 4, 8-10.

[^15]: ^?^ *See id.* at 11-12.

[^16]: ^?^ *See id.* at 5.

[^17]: ^?^ *See* 47 U.S.C. § 208; *see also Directel, Inc. v. American
    Telephone and Telegraph Company*, *Memorandum Opinion and Order*, 11
    FCC Rcd 7554, 7560-61, paras. 14-15 (1996); *Amendment of Rules
    Governing Procedures to be Followed when Formal Complaints are Filed
    Against Common Carriers*, *Report and Order*, 12 FCC Rcd 22,497
    (1997); *Amendment of Rules Concerning Procedures to be Followed
    when Formal Complaints are Filed Against Common Carriers*, *Report
    and Order*, 8 FCC Rcd 2614 (1993); *Connecticut Office of Consumer
    Counsel v. AT&T Communications*, *Memorandum Opinion and Order*, 4
    FCC Rcd 8130 (1989), *aff\'d sub nom.* *Connecticut Office of
    Consumer Counsel v. FCC*, 915 F.2d 75 (2d Cir. 1990), *cert.
    denied*, 499 U.S. 920 (1991). *See generally* 47 C.F.R. §§
    1.720-1.735.

[^18]: ^?^ *See, e.g., Sea Island Broadcasting Corp. of S.C. v. FCC*,
    627 F.2d 240, 243 (D.C. Cir. 1980); *see also Implementation of the
    Non-Accounting Safeguards of Sections 271 and 272 of the
    Communications Act of 1934, as Amended*, *First Report and Order and
    Further Notice of Proposed Rulemaking*, 11 FCC Rcd 21,905, 22,068,
    para. 337 (1996); *Bender v. Clark*, 744 F.2d 1424 (10th Cir. 1984)
    (stating that \"the traditional standard required in a civil or
    administrative proceeding is proof by a preponderance of the
    evidence.\").

[^19]: ^?^ *See* 47 C.F.R. § 1.720(b).

[^20]: ^?^*See* 47 C.F.R. § 1.720(c).

[^21]: ^?^ *See, e.g.,* Letter to Parties from Jennifer Myers, Staff
    Attorney, Enforcement Division, Common Carrier Bureau, FCC (August
    12, 1998) (summarizing the August 12, 1998 status conference and
    stating that the \"parties must state \[in their briefs\] the
    factual information upon which they rely and cite to documents
    demonstrating that factual information\").

[^22]: ^?^ *See id.* AT&T filed a motion to strike several of
    Consumer.Net\'s pleadings, including, Complainant\'s Opposition to
    AT&T\'s Opposition to Consumer.Net\'s Request for Admissions and
    Complainant\'s Opposition to AT&T\'s Opposition to Consumer.Net\'s
    Request for Deposition, stating that the pleadings were prohibited
    under the formal complaint rules. The Division denied
    Consumer.Net\'s discovery requests during the status conference.
    *See* Status Conference Transcript at 13-16. Accordingly, AT&T\'s
    motion to strike is denied as moot. AT&T filed a motion to dismiss
    the complaint. Because we are here addressing the issues raised in
    the pleadings, AT&T\'s motion to dismiss is dismissed as moot.

[^23]: ^?^ 47 C.F.R. § 64.1200(e)(2)(i).

[^24]: ^?^ *See* Consumer.Net Brief at 3-4, 6.

[^25]: ^?^ *See* AT&T Brief at 9-12.

[^26]: ^?^ *See* Consumer.Net Brief at 4.

[^27]: ^?^ *See id*. The parties may have made minor errors as to both
    the date of Zelma\'s request for the do-not-call policy and the date
    of AT&T\'s response. Although Consumer.Net asserts that Zelma made
    the request on July 9, 1997, AT&T\'s answers to interrogatories, on
    which Consumer.Net relies, indicate that Zelma requested a copy of
    AT&T\'s do-not-call policy from AT&T on July 7, 1997, not July 9,
    1997. *See* AT&T Corp. Responses to Complainant\'s First Set of
    Interrogatories at 6. Moreover, although Consumer.Net asserts that
    AT&T responded on August 9, 1997, it appears that AT&T sent a copy
    of its do-not-call policy to Zelma on August 11, 1997. *See* *August
    11, 1997 AT&T Letter*. These discrepancies do not affect our
    decision. In this order, we assume that the correct dates are July
    7, 1997, and August 11, 1997.

[^28]: ^?^ *See Arkow v. Bank of America, N.T.S.A.*, Municipal Court of
    the Newhall Judicial District, For the County of Los Angeles, State
    of California, Small Claims Division, Case No. S/C 95S00592
    (Consumer.Net Brief at Exh. 15).

[^29]: ^?^ 47 C.F.R. § 64.1200(e)(2)(i).

[^30]: ^?^ *See* Consumer.Net Brief at 4.

[^31]: ^?^ *See* *July 14, 1997 AT&T Letter*.

[^32]: ^?^ *See* AT&T Corp. Responses to Complainant\'s First Set of
    Interrogatories at 9; AT&T Brief at 10; Consumer.Net Brief at 4.

[^33]: ^?^ *See August 11, 1997 AT&T Letter*.

[^34]: ^?^ As stated above, whether a person or entity makes its
    do-not-call policy \"available upon demand\" within the meaning of
    section 64.1200(e)(2)(i) of our rules depends upon the facts and
    circumstances of each particular case. Thus, our finding in this
    case does not mean that we always would find a response time of
    seven days to be reasonable, or that we always would find a response
    time of greater than twelve days to be unreasonable.

[^35]: ^?^ *See* Consumer.Net Brief at 4, 6.

[^36]: ^?^ *See* AT&T Brief at 10-11.

[^37]: ^?^ *See* Consumer.Net Brief at 6; *but see* AT&T Brief at 10-11
    (stating that its call records do not indicate that Biggerstaff
    requested a copy of AT&T\'s do-not-call policy).

[^38]: ^?^ *See* Biggerstaff Aff. (Sept. 17, 1998) (attaching the
    cassette tape to the affidavit and explaining what is recorded on
    the tape) (hereinafter we refer to the tape as the \"Biggerstaff
    Tape\").

[^39]: ^?^ Nor does AT&T allege that the taped conversations should not
    be considered by the Commission for any legal or policy reasons.

[^40]: ^?^ *See* AT&T Brief at 11.

[^41]: ^?^ Biggerstaff Tape.

[^42]: ^?^ *See* Consumer.Net Brief at 4.

[^43]: ^?^ *See* AT&T Brief at 10-11.

[^44]: ^?^ Zelma Statement (Consumer.Net Brief at Exh. 12); *see also*
    Consumer.Net Brief at 4 (stating that Zelma \"requested the AT&T
    do-not-call policy after the February 24, 1998 telephone
    solicitation made by AT&T but did not receive one and had to call
    back on March 20, 1998.\"). It is unclear from Zelma\'s statement
    when Zelma initially contacted AT&T to request its do-not-call
    policy. Consumer.Net does not state whether Zelma received a
    do-not-call policy subsequent to his March 20, 1998 call to AT&T.
    AT&T states that its contemporaneous call records are unavailable
    for Zelma\'s alleged call to AT&T on or about February 24, 1998;
    therefore, AT&T does not have a record of whether Zelma requested a
    copy of AT&T\'s do-not-call policy. *See* AT&T Brief at 10. We find
    AT&T\'s less-than-complete recordkeeping troubling and urge carriers
    to fulfill their responsibilities to maintain such records. In its
    answers to interrogatories, however, AT&T states that Zelma
    contacted AT&T\'s Chairman\'s Executive Response Center on February
    24, 1998, and that as a result of that telephone call, AT&T placed
    Ms. Michele Zelma on the Universal Card Services (UCS) do-not-call
    list. *See* AT&T\'s Answers to Interrogatories at 9. It is unclear
    whether the contemporaneous call records referred to in AT&T\'s
    brief are the same as the records for the Chairman\'s Executive
    Response Center.

[^45]: ^?^ *See supra* paras. 9-11.

[^46]: ^?^ *See* Consumer.Net Brief at 4, 6 (referring to *July 14, 1997
    AT&T Letter and August 11, 1997 AT&T Letter*). The substance of each
    letter is identical. *July 14, 1997 AT&T Letter; August 11, 1997
    AT&T Letter*.

[^47]: ^?^ Consumer.Net Brief at 6.

[^48]: ^?^ *See* *July 14, 1997 AT&T Letter; August 11, 1997 AT&T
    Letter.*

[^49]: ^?^ It appears that Consumer.Net also argues that AT&T\'s failure
    to make its do-not-call policy available on AT&T\'s webpage violates
    section 64.1200(e)(i) of the Commission\'s rules. *See* Consumer.Net
    Brief at 4. We disagree. Nothing in the Commission\'s rules
    *requires* carriers to make available their do-not-call policies on
    the internet.

[^50]: ^?^ 47 C.F.R. § 64.1200(e)(2)(iii) (stating in pertinent part,
    \"the person or entity must record the \[do-not-call\] request and
    place the subscriber\'s name and telephone number on the do-not-call
    list . . . .\").

[^51]: ^?^ *See* 47 C.F.R. § 64.1200(e)(2)(vi).

[^52]: ^?^ 47 C.F.R. § 64.1200(e)(2)(v) (\"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 the 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.\").

[^53]: ^?^ *See* Consumer.Net Brief at 10-14.

[^54]: ^?^ *See* AT&T Corp. Responses to Complainant\'s First Set of
    Interrogatories at 5. *See also* Biggerstaff Aff. at paras. 7-8
    (Aug. 31, 1998).

[^55]: ^?^ *See* AT&T Brief at note 35; Biggerstaff Tape. Biggerstaff
    has several different telephone numbers. For privacy, only part of
    the telephone number will be used in this order.

[^56]: ^?^ *See* Consumer.Net Brief at 9; *see also* Consumer.Net Brief
    at Exh. 25 (Biggerstaff Aff. at para. 4 (June 18, 1998))
    (Biggerstaff Aff. (June 18, 1998)).

[^57]: ^?^ *See* AT&T Brief at 9.

[^58]: ^?^ Biggerstaff Aff. at para. 3 (June 18, 1998). Consumer.Net
    also relies on this affidavit to substantiate its claim that the
    other telephone solicitations violated Biggerstaff\'s prior
    do-not-call requests. The same deficiencies of the statement
    regarding the pre-1996 telephone solicitations with respect to the
    May 8, 1997 telephone solicitation are present for all subsequent
    calls.

[^59]: ^?^ *See* Biggerstaff Aff. at para. 3 (Sept. 17, 1998)
    (Consumer.Net Brief at Exh. 28) (stating that Mr. Biggerstaff
    maintains several different telephone numbers).

[^60]: ^?^ *See id.* (stating \"Prior to November 4, 1996, I received
    multiple telephone solicitations at my home by or on behalf of AT&T
    that I did not keep a record of. In each and every one of these
    calls, numbering approximately five, . . . I requested the caller to
    not call me again.\").

[^61]: ^?^ *See* Consumer.Net Brief at 9.

[^62]: ^?^ *See* AT&T Brief at 17.

[^63]: ^?^ *See* Biggerstaff Aff. at para. 4 (June 18, 1998).

[^64]: ^?^ *See* AT&T Corp. Response to Commission Request for
    Information at 2-3.

[^65]: ^?^ *See* 47 C.F.R. § 64.1200(e)(2)(iii).

[^66]: ^?^ *See* *supra* para. 14.

[^67]: ^?^ Consumer.Net Brief at 9. Consumer.Net does not mention the
    June 4, 1998 telephone solicitation in its complaint or in its
    brief. Biggerstaff, in his affidavit, however, states that he
    received a June 4, 1998 telephone solicitation in violation of his
    do-not-call request. Because Consumer.Net is *pro se*, we liberally
    construe its complaint to encompass the June 4, 1998 telephone
    solicitation referenced in Biggerstaff\'s affidavit.

[^68]: ^?^ Biggerstaff Tape.

[^69]: ^?^ Consumer.Net also argues that AT&T initiated telephone
    solicitations on July 3, July 28, and July 30, each in violation of
    Biggerstaff\'s do-not-call request. Each separate call is a separate
    cause of action. These calls occurred after Consumer.Net filed its
    formal complaint, and therefore are not properly before us.
    Consumer.Net cannot raise new claims after the formal complaint has
    been filed. *See GE Capital Communications Services v. AT&T*,
    *Memorandum Opinion and Order*, 13 FCC Rcd 13,138, 13,149, para. 24
    (1998) (declining to resolve issues raised for the first time in the
    complainant\'s brief).

[^70]: ^?^ 47 C.F.R. § 64.1200(e)(2)(v).

[^71]: ^?^ *See* Consumer.Net Brief at 10.

[^72]: ^?^ *See id.*

[^73]: ^?^ *See* Statement of Richard M. Zelma (June 17, 1998)
    (Consumer.Net Brief at Exh. 12).

[^74]: ^?^ *See* Letter to Richard Zelma from Mary Beth Kessler,
    Manager, AT&T Customer Relations Center (Aug. 11, 1997)
    (Consumer.Net Brief at Exh. 20) (This August 11, 1997 letter is not
    the same as the letter referred to earlier as the *August 11, 1997
    Letter*).

[^75]: ^?^ Consumer.Net Brief at 11.

[^76]: ^?^ AT&T Brief at 13.

[^77]: ^?^ *Id.* at 13-14.

[^78]: ^?^ AT&T Reply Brief at 8-9.

[^79]: ^?^ *See supra* para. 16 (discussing why Zelma\'s unsworn
    statement is insufficient to demonstrate that Zelma requested a copy
    of AT&T\'s do-not-call policy).

[^80]: ^?^ *See* Letter to Richard Zelma from Mary Beth Kessler,
    Manager, AT&T Customer Relations Center (Aug. 11, 1997)
    (Consumer.Net Brief at Exh. 20).

[^81]: ^?^ *See id.* (emphasis added).

[^82]: ^?^ *See, e.g.,* Letter to Richard Zelma from Joan Lichtenstein,
    Manager, Alternate Channels, International Consumer Long Distance,
    AT&T (Dec. 3, 1996) (Consumer.Net Brief at Exh. 30).

[^83]: ^?^ *Id.*

[^84]: ^?^ *See* Consumer.Net Brief at 14.

[^85]: ^?^ *See* AT&T Brief at 14 n.33.

[^86]: ^?^ 47 C.F.R. § 64.1200(e)(2)(iii) (emphasis added). Section
    64.1200(e)(2)(iii) states in pertinent part,

    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 calls from that person or
    entity, the person or entity must record the request and place the
    subscriber\'s name and telephone number at the time the request is
    made.

    *Id.*

[^87]: ^?^ *TCPA Memorandum Opinion and Order*, 10 FCC Rcd at 12,395,
    para. 9. The Commission declined to modify the requirement that
    solicitors record both a name and number. The Commission stated,
    however, that \"\[t\]elemarketers will not be in violation of the
    rule so long as they request the called party\'s name. Indeed, we
    expect telemarketers to respect the privacy of those who
    specifically refuse to give a name by simply making a notation to
    that effect.\" *Id.*

[^88]: ^?^ *See* AT&T Brief at 4 n.8 (discussing UCS\'s do-not-call list
    procedures).

[^89]: ^?^ *See id.*

[^90]: ^?^ *See supra* para. 19.

[^91]: ^?^ *See* AT&T Brief at 13.

[^92]: ^?^ *See* Consumer.Net Complaint at 6; Status Conference
    Transcript at 26-27.

[^93]: ^?^ *See* Status Conference Transcript at 8-11. In its brief,
    Consumer.Net appears to challenge the sufficiency of the information
    in various AT&T, APAC TeleServices, Inc., and Citibank do-not-call
    policies that Smith received. *See* Consumer.Net Brief at 5-7.
    Consumer.Net also appears to raise issues concerning the practices
    of the telemarketers AT&T used to telemarket AT&T\'s products and
    services. Consumer.Net also appears to argue that AT&T\'s procedures
    for maintaining a physical do-not-call list do not comply with our
    rules. *See id.* at 12-13. These claims were raised only in
    Consumer.Net\'s brief, and not in its complaint. Therefore, these
    claims are not properly before us, and we need not address them.
    *See* 47 C.F.R. § 1.721(a); *see also* *GE Capital Communications
    Services v. AT&T*, 13 FCC Rcd at 13,149, para. 24 (declining to
    resolve issues raised for the first time in the complainant\'s
    brief).

[^94]: ^?^ *See* Consumer.Net Brief at 14.

[^95]: ^?^ 47 U.S.C. §§ 208, 503(b); 47 C.F.R. § 1.80(e).

[^96]: ^?^ *See Halprin v. MCI Telecommunications Corp.*, *Memorandum
    Opinion and Order*, 13 FCC Rcd 22,568, 22,581, at para. 29 (1998).
    While the violations at issue here standing alone do not fall within
    the one-year statute of limitations period established in section
    503(b)(6)(B) of the Act, 47 U.S.C. § 503(b)(6)(B), the Commission is
    concerned with AT&T\'s failure to comply fully with the TCPA and the
    Commission\'s parallel regulations, and will bring appropriate
    enforcement action if such violations recur.

[^97]: ^?^ *See, e.g.,* 47 U.S.C. § 206 (providing that, if a common
    carrier violates the Act, \"such common carrier shall be liable *to
    the person or persons injured thereby* for the full amount of
    damages sustained\") (emphasis added). *See also* *Halprin v. MCI
    Telecommunications Corp.*, 13 FCC Rcd at 22,581, para. 29 (holding
    that class action lawsuits are neither contemplated by, nor
    consistent with, the private remedies created under sections 206
    through 209 of the Act). Nonetheless, it is appropriate for the
    Commission to resolve the legal and factual issues presented by
    Consumer.Net\'s complaint, in light of the statutory mandate that
    such complaint not be dismissed solely for lack of direct injury.
    *See* 47 U.S.C. § 208.

[^98]: ^?^ Pursuant to section 227(c)(5) a person who has received
    telephone solicitations in violation of the Commission\'s rules and
    the Act may \"if otherwise permitted by the laws or rules of court
    of a State bring in an appropriate court of that State\" an action
    to enjoin such violation and/or an action to recover actual monetary
    loss or \$500 per violation. *Id.* Section 227 further provides that
    the court may increase the amount to not more than \$1,500 per
    violation if the court finds that \"the defendant wilfully or
    knowingly violated the regulations prescribed under this
    subsection.\" 47 U.S.C. § 227(c)(5)(C). Section 227 does not provide
    a similar monetary recovery for those complaints brought before the
    Commission; complainants, however, may file a section 208 formal
    complaint for the recovery of actual damages. *See* 47 U.S.C. §§
    206-208. During a status conference, Commission staff informed
    Consumer.Net that Biggerstaff and Zelma could file a formal
    complaint on their own behalf or seek to be joined as parties to the
    Consumer.Net complaint if they wished to recover actual damages.