**DA 05-1348**

**Released: May 13, 2005**

> **CONSUMER & GOVERNMENTAL AFFAIRS BUREAU SEEKS COMMENT ON PETITION FOR
> DECLARATORY RULING ON PREEMPTION OF CALIFORNIA TELEMARKETING RULES**

**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 August 11, 2003, Mark Boling filed a petition for declaratory ruling
"individually and on behalf of California consumers and California
businesses" asking the Federal Communications Commission ("Commission")
to declare that particular provisions of the California Consumer Legal
Remedies Act ("CLRA"), as applied to interstate telephone calls, are not
preempted by the Telephone Consumer Protection Act ("TCPA").[^1] In this
Public Notice, we seek comment on the issues raised in the
*Petition.*[^2]

Mr. Boling states that he has acted as a party, representative party, or
legal representative in numerous California lawsuits in which defendants
have asserted as a defense that particular provisions of the CLRA are
preempted by the TCPA. Mr. Boling indicates that the CLRA, as set forth
in California Civil Code § 1770(a), contains a list of unlawful
practices. He notes that California Civil Code § 1770(a)(22)(A), in
particular, makes unlawful the "disseminat\[ion\] \[of\] an unsolicited
prerecorded message by telephone without an unrecorded, natural voice
first informing the person answering the telephone of the name of the
caller or the organization being represented, and either the address or
the telephone number of the caller, and without obtaining the consent of
that person to listen to the prerecorded message."[^3]

Mr. Boling further notes that section 227(b)(1)(B) of the Communications
Act, as amended by the TCPA, makes it unlawful for any person "to
initiate any telephone call to any residential telephone line using an
artificial or prerecorded voice to deliver a message without the prior
express consent of the called party, unless the call is initiated for
emergency purposes or is exempted by rule or order by the Commission
under paragraph (2)(B)."[^4] Asserting that this provision of federal
law poses no conflict with the relevant provisions of the CLRA, Mr.
Boling explains that:

> In this instance, the CLRA controls dissemination of a prerecorded
> message and does not control the telephone call containing that
> message. The TCPA controls the call, and not the dissemination of the
> message. Therefore, when \[a party\] initiates the unlawful call it
> violates \[the\] TCPA and when the unlawful message is received in
> California it violates the CLRA.[^5]

As such, Mr. Boling asserts that "\[n\]o conflict exists in the
enforcement of the TCPA or the CLRA as it relates to the activities set
forth in this action, as the actionable conduct in each law is
separately defined."[^6] Finally, Mr. Boling asserts that, because the
practices at issue in the *Petition* do not pertain to technical and
procedural requirements for identification of senders of telephone
facsimile messages or autodialed artificial or prerecorded voice
messages, as described in section 227(d) of the TCPA, they are not
subject to federal preemption provisions contained in section 227(e) of
the TCPA.[^7] Accordingly, Mr. Boling asks the Commission to issue a
declaratory ruling that the identified provisions of the California
Civil Code, as applied to interstate calling, are not preempted by the
TCPA.[^8]

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 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* Petition for Declaratory Ruling, CG Docket No. 02-278, filed
    August 11, 2003 (*Petition*). Mr. Boling cites California Civil Code
    §§ 1750 *et seq*.

[^2]: We note that the Consumer & Governmental Affairs Bureau is
    releasing contemporaneously with this Public Notice two additional
    public notices seeking public comment on separate 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 Relating to Commission's Jurisdiction Over
    Interstate Telemarketing*, Public Notice, CG Docket No. 02-278, DA
    05-1346 (rel. May 13, 2005) (seeking comment on joint petition filed
    by 33 organizations engaged in interstate telemarketing activities
    in which petitioners ask Commission to declare its exclusive
    regulatory jurisdiction over interstate telemarketing).

[^3]: *See Petition* at 5 (citing Calif. Civil Code § 1770(a)(22)(A)).

[^4]: *See Petition* at 5-6 (citing 47 U.S.C. § 227(b)(1)(B)).

[^5]: *See Petition* at 6 (emphasis from original text omitted).

[^6]: *See Petition* at 6.

[^7]: *See Petition* at 7.

[^8]: *See Petition* at 7.