**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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**REPORT AND ORDER**

**Adopted**: **June 26, 2003 Released: July 3, 2003**

By the Commission: Chairman Powell, Commissioners Abernathy, Copps and
Adelstein issuing separate statements.

Table of Contents

[Paragraph]{.underline} [Number]{.underline}

I. IntroductioN 1

II\. Background 4

A. Telephone Consumer Protection Act of 1991 4

B. TCPA Rules 6

C. Marketplace Changes Since 1992 8

D. FTC National Do-Not-Call Registry and Telemarketing Rules 9

E. State Do-Not-Call Lists 12

F. Notice of Proposed Rulemaking 14

G. Do-Not-Call Implementation Act 15

III\. National do-not-call list 16

A. Background 16

B. Discussion 25

1\. National Do-Not-Call Registry 28

2\. Exemptions 42

3\. Section 227(c)(3) Requirements 55

4\. Constitutionality 63

5\. Consistency with State and FTC Do-Not-Call Rules 74

IV\. Company specific do-not-call lists 86

A. Background 86

B. Discussion 90

1\. Efficacy of the Company-Specific Rules 90

2\. Amendments to the Company-Specific Rules 92

V. Interplay of sectionS 222 and 227 97

A. Background 97

B. Discussion 100

VI\. Established Business Relationship 109

A. Background 109

B. Discussion 112

1\. Definition of Established Business Relationship 113

2\. Telecommunications Common Carriers 119

3\. Interplay Between Established Business Relationship and Do-Not-Call
Request 124

VII\. Tax-Exempt Nonprofit Organization Exemption 125

A. Background 125

B. Discussion 128

VIII\. automated telephone dialing equipment 129

A. Background 129

B. Discussion 131

1\. Predictive Dialers 131

2\. "War Dialing" 135

IX\. artificial or prerecorded voice messages 136

A. Background 136

B. Discussion 139

1\. Offers for Free Goods or Services; Information-Only Messages 139

2\. Identification Requirements 143

3\. Radio Station and Television Broadcaster Calls 145

X. ABANDONED CALLS 146

A. Background 146

B. Discussion 150

1\. Maximum Rate on Abandoned Calls 151

2\. Two-Second-Transfer Rule 153

3\. Prerecorded Message for Identification 155

4\. Established Business Relationship 156

5\. Ring Duration 157

XI\. WIRELESS TELEPHONE NUMBERS 160

A. Background 160

B. Discussion 165

1\. Telemarketing Calls to Wireless Numbers 165

2\. Wireless Number Portability and Pooling 168

XII\. CALLER IDENTIFICATION 173

A. Background 173

B. Discussion 179

XIII\. Unsolicited facsimile advertisements 185

A. Background 185

B. Discussion 187

1\. Prior Express Invitation or Permission 187

2\. Fax Broadcasters 194

3\. Fax Servers 198

4\. Identification Requirements 203

XIV\. Private Right of Action 204

A. Background 204

B. Discussion 206

XV\. INFORMAL COMPLAINT RULES 207

XVI\. Time of Day Restrictions 208

XVII\. Enforcement priorities 211

XVIII\. Other Issues 215

A. Access to TCPA Inquiries and Complaints 215

B. Reports to Congress 217

XIX\. Procedural issues 218

A. Regulatory Flexibility Act Analysis 218

B. Paperwork Reduction Act Analysis 219

C. Late-Filed Comments 220

D. Materials in Accessible Formats 221

XX\. Ordering clauses 222

Appendix A: Final Rules

Appendix B: Final Regulatory Flexibility Act Analysis

Appendix C: Comments Filed

#  IntroductioN

1.  In this Order, we revise the current Telephone Consumer Protection
    Act (TCPA)[^1] rules and adopt new rules to provide consumers with
    several options for avoiding unwanted telephone solicitations.
    Specifically, we establish with the Federal Trade Commission (FTC) a
    national do-not-call registry for consumers who wish to avoid
    unwanted telemarketing calls. The national do-not-call registry will
    supplement the current company-specific do-not-call rules for those
    consumers who wish to continue requesting that particular companies
    not call them. To address the more prevalent use of predictive
    dialers, we have determined that a telemarketer may abandon no more
    than three percent of calls answered by a person and must deliver a
    prerecorded identification message when abandoning a call. The new
    rules will also require all companies conducting telemarketing to
    transmit caller identification (caller ID) information, when
    available, and prohibits them from blocking such information. The
    Commission has revised its earlier determination that an established
    business relationship constitutes express invitation or permission
    to receive an unsolicited fax, and we have clarified when fax
    broadcasters are liable for the transmission of unlawful facsimile
    advertisements. We believe the rules the Commission adopts here
    strike an appropriate balance between maximizing consumer privacy
    protections and avoiding imposing undue burdens on telemarketers.

2.  It has now been over ten years since the Commission adopted a broad
    set of rules that respond to Congress's directives in the TCPA. Over
    the last decade, the telemarketing industry has undergone
    significant changes in the technologies and methods used to contact
    consumers. The Commission has carefully reviewed the record
    developed in this rulemaking proceeding. The record confirms that
    these marketplace changes warrant modifications to our existing
    rules, and adoption of new rules if consumers are to continue to
    receive the protections that Congress intended to provide when it
    enacted the TCPA. The number of telemarketing calls has risen
    steadily; the use of predictive dialers has proliferated; and
    consumer frustration with unsolicited telemarketing calls continues
    despite the efforts of the states, the Direct Marketing Association
    (DMA),[^2] and the company-specific approach to the problem.
    Consumers often feel frightened, threatened, and harassed by
    telemarketing calls. They are angered by hang-ups and "dead air"
    calls, by do-not-call requests that are not honored, and by
    unsolicited fax advertisements. Many consumers who commented in this
    proceeding "want something done" about unwanted solicitation calls,
    and the vast majority of them support the establishment of a
    national do-not-call registry. Congress, too, has responded by
    enacting the Do-Not-Call Implementation Act (Do-Not-Call Act),[^3]
    authorizing the establishment of a national do-not-call registry,
    and directing this Commission to issue final rules in its second
    major TCPA proceeding that maximize consistency with those of the
    FTC.

3.  The Commission recognizes that telemarketing is a legitimate method
    of selling goods and services, and that many consumers value the
    savings and convenience it provides. Thus, the national do-not-call
    registry that we adopt here will only apply to outbound
    telemarketing calls and will only include the telephone numbers of
    consumers who indicate that they wish to avoid such calls. Consumers
    who want to receive such calls may instead continue to rely on the
    company-specific do-not-call lists to manage telemarketing calls
    into their homes. Based on Congress's directives in the TCPA and the
    Do-Not-Call Act, the substantial record developed in this
    proceeding, and on the Commission's own enforcement experience, we
    adopt these amended rules, as described in detail below.

#  Background

## Telephone Consumer Protection Act of 1991 

4.  On December 20, 1991, Congress enacted the TCPA in an effort to
    address a growing number of telephone marketing calls and certain
    telemarketing practices thought to be an invasion of consumer
    privacy and even a risk to public safety.[^4] The statute restricts
    the use of automatic telephone dialing systems, artificial and
    prerecorded messages, and telephone facsimile machines to send
    unsolicited advertisements. Specifically, the TCPA provides that:

    It shall be unlawful for any person within the United States---

    \(A\) to make any call (other than a call made for emergency
    purposes or made with the prior express consent of the called party)
    using any automatic telephone dialing system or an artificial or
    prerecorded voice---

    \(i\) to any emergency telephone line (including any "911" line and
    any emergency line of a hospital, medical physician or service
    office, health care facility, poison control center, or fire
    protection or law enforcement agency);

    \(ii\) to the telephone line of any guest room or patient room of a
    hospital, health care facility, elderly home, or similar
    establishment; or

    \(iii\) to any telephone number assigned to a paging service,
    cellular telephone service, specialized mobile radio service, or
    other radio common carrier service, or any service for which the
    called party is charged for the call;

    \(B\) 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);

    \(C\) to use any telephone facsimile machine, computer, or other
    device to send an unsolicited advertisement to a telephone facsimile
    machine; or

    \(D\) to use an automatic telephone dialing system in such a way
    that two or more telephone lines of a multi-line business are
    engaged simultaneously.[^5]

    Under the TCPA, those sending fax messages or transmitting
    artificial or prerecorded voice messages are subject to certain
    identification requirements.[^6] The statute also provides consumers
    with several options to enforce the restrictions on unsolicited
    telemarketing, including a private right of action.[^7]

5.  The TCPA requires the Commission to prescribe regulations to
    implement the statute's restrictions on the use of autodialers,
    artificial or prerecorded messages and unsolicited facsimile
    advertisements.[^8] The TCPA also requires the Commission to
    "initiate a rulemaking proceeding concerning the need to protect
    residential telephone subscribers' privacy rights" and to consider
    several methods to accommodate telephone subscribers who do not wish
    to receive unsolicited advertisements, including live voice
    solicitations.[^9] Specifically, section 227(c)(1) requires the
    Commission to "compare and evaluate alternative methods and
    procedures (including the use of electronic databases, telephone
    network technologies, special directory markings, industry-based or
    company-specific 'do not call' systems, and any other alternatives,
    individually or in combination) for their effectiveness in
    protecting such privacy rights, and in terms of their cost and other
    advantages and disadvantages."[^10] The TCPA specifically authorizes
    the Commission to "require 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."[^11]

## TCPA Rules

6.  In 1992, the Commission adopted rules implementing the TCPA,
    including the requirement that entities making telephone
    solicitations institute procedures for maintaining do-not-call
    lists.[^12] Pursuant to the Commission's rules, a person or entity
    engaged in telemarketing is required to maintain a record of a
    called party's request not to receive future solicitations for a
    period of ten years.[^13] Telemarketers must develop and maintain
    written policies for maintaining their lists,[^14] and they are
    required to inform their employees of the list's existence and train
    them to use the list.[^15] Commission rules prohibit telemarketers
    from calling residential telephone subscribers before 8 a.m. or
    after 9 p.m.[^16] and require telemarketers to identify themselves
    to called parties.[^17] As mandated by the TCPA, the Commission's
    rules also establish general prohibitions against autodialed calls
    being made without prior express consent to certain locations,
    including emergency lines or health care facilities,[^18] the use of
    prerecorded or artificial voice message calls to residences,[^19]
    line seizure by prerecorded messages,[^20] and the transmission of
    unsolicited advertisements by facsimile machines.[^21] The TCPA
    rules provide that facsimile and prerecorded voice transmissions, as
    well as telephone facsimile machines, must meet specific
    identification requirements.[^22]

7.  In 1995 and 1997, the Commission released orders addressing
    petitions for reconsideration of the *1992 TCPA Order.* In a
    Memorandum Opinion and Order released on August 7, 1995, the
    Commission exempted from its TCPA rules calls made on behalf of
    tax-exempt nonprofit organizations, clarified treatment of debt
    collection calls, and required telemarketers to honor a do-not-call
    request for a period of ten years.[^23] The Commission also extended
    its TCPA rules to respond to technical advances in computer-based
    facsimile modems that enable solicitors to become "fax
    broadcasters."[^24] On April 10, 1997, the Commission issued an
    Order on Further Reconsideration requiring that all facsimile
    transmissions contain the identifying information of the business,
    other entity, or individual creating or originating the facsimile
    message, rather than the entity that transmits the message.[^25]

## Marketplace Changes Since 1992

8.  The marketplace for telemarketing has changed significantly in the
    last decade. When the TCPA was enacted in 1991, Congress determined
    that 300,000 solicitors were used to telemarket goods and services
    to more than 18 million Americans every day.[^26] Congress also
    found that in 1990 sales generated through telemarketing amounted to
    \$435 billion dollars.[^27] Some estimate that today telemarketers
    may attempt as many as 104 million calls to consumers and businesses
    every day,[^28] and that telemarketing calls generate over \$600
    billion in sales each year.[^29] The telemarketing industry is
    considered the single largest direct marketing system in the
    country, representing 34.6% of the total U.S. sales attributed to
    direct marketing.[^30] The number of telemarketing calls, along with
    the increased use of various technologies to contact consumers, has
    heightened public concern about unwanted telemarketing calls and
    control over the telephone network. Autodialers can deliver
    prerecorded messages to thousands of potential customers every day.
    Predictive dialers,[^31] which initiate phone calls while
    telemarketers are talking to other consumers, frequently abandon
    calls before a telemarketer is free to take the next call.[^32]
    Using predictive dialers allows telemarketers to devote more time to
    selling products and services rather than dialing phone numbers, but
    the practice inconveniences and aggravates consumers who are hung up
    on. Despite a general ban on faxing unsolicited advertisements,[^33]
    and aggressive enforcement by the Commission,[^34] faxed
    advertisements also have proliferated, as facsimile service
    providers (or "fax broadcasters") enable sellers to send
    advertisements to multiple destinations at relatively little cost.
    These unsolicited faxes impose costs on consumers, result in
    substantial inconvenience and disruption, and also may have serious
    implications for public safety.[^35]

## FTC National Do-Not-Call Registry and Telemarketing Rules

9.  In response to these changes in the marketplace, the FTC recently
    amended its own rules to better protect consumers from deceptive and
    abusive telemarketing practices, including those that may be abusive
    of consumers' interest in protecting their privacy. On December 18,
    2002, the FTC released an order adopting a national do-not-call
    registry to be maintained by the federal government to help
    consumers avoid unwanted telemarketing calls. In that order, the FTC
    also adopted other changes to its Telemarketing Sales Rule (TSR),
    which are based on its authority under the 1994 Telemarketing
    Consumer Fraud and Abuse Prevention Act.[^36] The FTC's amended TSR
    supplements its current company-specific do-not-call rules with a
    provision allowing consumers to stop unwanted telemarketing calls by
    registering their telephone numbers with a national do-not-call
    registry at no cost. Telemarketers will be required to pay fees to
    access the database and to "scrub" their calling lists of the
    telephone numbers in the database.[^37] The FTC's list will not
    cover those entities over which it has no jurisdiction, including
    common carriers, banks, credit unions, savings and loans, companies
    engaged in the business of insurance, and airlines.[^38] It also
    will not apply to intrastate telemarketing calls. In addition, the
    FTC concluded that nonprofit organizations are not subject to the
    national do-not-call list; however, they must, when using for-profit
    telemarketers, comply with the company-specific do-not-call
    rules.[^39]

10. The FTC indicated in its order that it does not intend the national
    do-not-call registry to preempt state do-not-call laws. Instead, it
    will allow all states, and the DMA if it so desires, to download
    into the national registry the telephone numbers of consumers on
    their lists. The FTC anticipates a relatively short transition
    period leading to one harmonized registry, and said that it will
    work with the states to coordinate implementation, minimize
    duplication, and maximize efficiency for consumers.[^40] The FTC has
    also announced that online registration for the do-not-call registry
    will be available nationwide on or around July 1, 2003. Telephone
    registration will be open on the same date for consumers in states
    west of the Mississippi River and open to the entire country on July
    8, 2003. On October 1, 2003, the FTC and the States will begin
    enforcing the national do-not-call provisions of the amended
    TSR.[^41]

11. The FTC also adopted new rules on the use of predictive dialers and
    the transmission of caller ID information. The amended TSR prohibits
    telemarketers from abandoning any outbound telephone call, and
    provides in a safe harbor provision, that to avoid liability, a
    telemarketer must, among several other requirements, abandon no more
    than three percent of all calls answered by a person.[^42]
    Telemarketers will also be required to transmit the telephone
    number, and, when made available by the telemarketer's carrier, the
    name of the telemarketer, to any caller identification service.[^43]

## State Do-Not-Call Lists 

12. A growing number of states have also adopted or are considering
    legislation to establish statewide do-not-call lists. To date, 36
    states have passed "do-not-call" statutes, [^44] and numerous others
    have considered similar bills.[^45] Consumers remain enthusiastic
    about do-not-call lists, as they continue to register their
    telephone numbers with state lists.[^46] State do-not-call lists
    vary in the methods used for collecting data, the fees charged, and
    the types of entities required to comply with their restrictions.
    Some state statutes provide for state-managed do-not-call lists,
    while others require telemarketers to use the Direct Marketing
    Association's Telephone Preference Service.[^47] In some states,
    residents can register for the do-not-call lists at no charge.[^48]
    In others, telephone subscribers must pay a fee. For example,
    Georgia requires its residents to pay \$5 to place their phone
    numbers on the do-not-call list for a period of two years.[^49] To
    register with the Texas do-not-call list, residents must pay \$2.25
    for three years.[^50] In most states, telemarketers must pay to
    access the state do-not-call list if they wish to call residents in
    that state; however, such access fees vary from state to state. In
    Oregon, telemarketers must pay \$120 per year to obtain the state
    do-not-call list;[^51] in Missouri, the fee is \$600 per year,
    although telemarketers can pay less if they want only numbers from
    certain area codes.[^52] The state "do-not-call" statutes provide
    varying exceptions to their requirements.

13. As state legislatures continue to consider their own do-not-call
    laws, others have, in anticipation of the national do-not-call
    registry, begun the process of harmonizing their lists with the
    national list. The Illinois legislature, for example, passed a bill
    to reconcile differences between the state and federal no-call laws.
    The measure would make the FTC's national no-call list the official
    state list for Illinois and would direct the Illinois Commerce
    Commission to work with local exchange providers on how to inform
    consumers about the existence of the list.[^53] California's
    Attorney General's office is allowing residents to pre-register for
    the national registry on the internet, and says it will deliver the
    pre-registered California telephone numbers to the FTC as soon as it
    is ready to receive them.[^54] The FTC indicated in its order that
    it will take some time to harmonize the various state do-not-call
    registries with the national registry.[^55] While some states will
    be able to transfer their state "do-not-call" registration
    information by the time telemarketers first gain access to the
    national registry, other states may need from 12 to 18 months to
    achieve those results.[^56]

## Notice of Proposed Rulemaking

14. On September 18, 2002, the Commission released a Memorandum Opinion
    and Order and Notice of Proposed Rulemaking seeking comment on
    whether the Commission's rules need to be revised in order to carry
    out more effectively Congress's directives in the TCPA.[^57]
    Specifically, we sought comment on whether to revise or clarify our
    rules governing unwanted telephone solicitations[^58] and the use of
    automatic telephone dialing systems,[^59] prerecorded or artificial
    voice messages,[^60] and telephone facsimile machines.[^61] We also
    sought comment on the effectiveness of company-specific do-not-call
    lists.[^62] In addition, we sought comment on whether to revisit the
    option of establishing a national do-not-call list[^63] and, if so,
    how such action might be taken in conjunction with the FTC's
    proposal to adopt a national do-not-call list and with various state
    do-not-call lists.[^64] Lastly, we sought comment on the effect
    proposed policies and rules would have on small business entities,
    including *inter alia* those that engage in telemarketing activities
    and those that rely on telemarketing as a method to solicit new
    business.[^65] Following the FTC's announcement that it had amended
    its TSR, the Commission extended the reply comment period in this
    proceeding to ensure that all interested parties had ample
    opportunity to comment on possible Commission action in light of the
    FTC's new rules.[^66]

## Do-Not-Call Implementation Act

15. On March 11, 2003, the Do-Not-Call Act was signed into law,
    authorizing the FTC to collect fees from telemarketers for the
    implementation and enforcement of a do-not-call registry. The
    Do-Not-Call Act also requires the FCC to issue a final rule in its
    ongoing TCPA proceeding within 180 days of enactment, and to consult
    and coordinate with the FTC to "maximize consistency" with the rule
    promulgated by the FTC. Congress recognized that because the FCC is
    bound by the TCPA, it would not be possible for the FCC to adopt
    rules that are identical to those of the FTC in every instance.[^67]
    In those instances where such inconsistencies exist, Congress stated
    that either the FTC or FCC must address them administratively or
    Congress must address them legislatively.[^68] The FTC's recent rule
    changes expand that agency's regulation of telemarketing activities
    and require coordination to ensure consistent and non-redundant
    federal enforcement. The FCC's jurisdiction over telemarketing
    practices, however, is significantly broader than the FTC's. The FCC
    staff intends to negotiate a Memorandum of Understanding between the
    respective agencies to achieve an efficient and effective
    enforcement strategy that will promote compliance with federal
    regulations. The FCC is required to report to Congress within 45
    days after the issuance of final rules in this proceeding, and
    annually thereafter.[^69] The Commission released a Further Notice
    of Proposed Rulemaking on March 25, 2003, seeking comment on the
    Do-Not-Call Act's requirements.[^70] By this Order, we are complying
    with Congress's directives to issue final rules in our TPCA
    proceeding within 180 days of the Do-Not-Call Act's enactment.
    Furthermore, we have consulted and coordinated with the FTC to adopt
    a national do-not-call list and other telemarketing rules that
    maximize consistency with the FTC's amended Telemarketing Sales
    Rule.[^71] Pursuant to the requirements of the Do-Not-Call Act, the
    Commission will note the remaining inconsistencies between the FCC
    and FTC rules in the report to Congress. The Commission will also
    continue to work, within the framework of the TCPA, to maximize
    consistency with the FTC's rules.

#  National do-not-call list

## Background

16. [*Section 227*.]{.underline} The TCPA requires the Commission to
    protect residential telephone subscribers' privacy rights to avoid
    receiving telephone solicitations to which they object.[^72] In so
    doing, section 227(c)(1) directs the Commission to "compare and
    evaluate alternative methods and procedures" including the use of
    electronic databases and other alternatives in protecting such
    privacy rights.[^73] Pursuant to section 227(c)(3), the Commission
    "may require 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, and to
    make that compiled list and parts thereof available for
    purchase."[^74] If the Commission determines that adoption of a
    national database is warranted, section 227(c)(3) enumerates a
    number of specific statutory requirements that must be
    satisfied.[^75] Additionally, section 227(c)(4) requires the
    Commission to consider the different needs of telemarketers
    operating on a local or regional basis and small businesses.[^76] In
    addition to our general authority over interstate communications,
    section 2(b) of the Communications Act specifically provides the
    Commission with the authority to apply section 227 to intrastate
    communications.[^77]

17. *[TCPA Order and 2002 Notice.]{.underline}* The Commission initially
    considered the possibility of adopting a national do-not-call
    database in the 1992 *TCPA Order*. At that time, the Commission
    declined to adopt a national do-not-call registry citing concerns
    that such a database would be costly and difficult to establish and
    maintain in a reasonably accurate form.[^78] The Commission noted
    that frequent updates would be required, regional telemarketers
    would be forced to purchase a national database, costs might be
    passed on to consumers, and the information compiled could present
    problems in protecting consumer privacy. The Commission opted
    instead to implement an alternative approach requiring commercial
    telemarketers to maintain their own company-specific lists of
    consumers who do not wish to be called.[^79]

18. In the *2002 Notice*, the Commission sought comment on whether to
    revisit its 1992 determination not to adopt a national do-not-call
    list.[^80] As evidenced by the persistent consumer complaints
    regarding unwanted telephone solicitations, the Commission concluded
    that the time was ripe to revisit this issue as part of its overall
    review of the TCPA rules.[^81] In so doing, the Commission noted
    that the increasing number of telemarketing calls over the last
    decade, along with the increased use of various technologies, such
    as predictive dialers, to contact consumers, has heightened public
    concern about unwanted telemarketing calls and control over the
    telephone network.[^82] The Commission also noted that technological
    innovations may make the creation and maintenance of a national
    do-not-call database more viable than in the past. Therefore, the
    Commission sought comment on whether a national do-not-call list
    should be adopted and, if so, how such a list could be implemented
    in the most efficient and effective manner for consumers,
    businesses, and regulators. The Commission noted that a national
    list would provide consumers with a one-step method for preventing
    unwanted telemarketing calls. This option could be less burdensome
    for consumers than repeating requests on a case-by-case basis,
    particularly in light of the number of entities that conduct
    telemarketing today. In particular, the Commission sought comment
    on: (1) whether the cost, accuracy, and privacy concerns noted in
    1992 remain relevant today; (2) the effectiveness of the
    company-specific list in protecting consumer privacy rights; (3)
    changes in the technology or the marketplace that might influence
    this analysis; (4) the constitutionality of a national database; (5)
    satisfying the statutory requirements of section 227(c); and (6) the
    potential relationship of a national database with the FTC's
    proposed rules and various state-adopted do-not-call
    registries.[^83]

19. The issues relating to the adoption and implementation of a national
    do-not-call registry generated extensive comment from consumers,
    businesses, and state governments. Individual consumers and consumer
    interest groups overwhelmingly support the adoption of a national
    do-not-call list.[^84] In fact, several commenters support more
    restrictive alternatives such as adopting an "opt-in" list for those
    consumers that wish to receive telephone solicitations.[^85]
    Commenters supporting a national do-not-call list cite the numerous
    and increasing receipt of unwanted telephone solicitation calls;
    inadequacies of the company-specific approach due to the failure of
    many telemarketers to honor do-not-call requests or, the
    impossibility of relaying such requests in the case of "dead air" or
    hang-up calls initiated by predictive dialers; the burdens of making
    do-not-call requests for every such call, particularly on the
    elderly and individuals with disabilities; and the costs imposed on
    consumers in acquiring technologies to reduce the number of unwanted
    calls.[^86] Many such commenters argue that unwanted telephone
    solicitations have reached the point of harassment that constitutes
    an invasion of privacy within their homes.[^87] Others indicate that
    consumers are often frightened by dead-air and hang-up calls
    generated by predictive dialers believing they are being
    stalked.[^88] Several consumers indicate that they no longer answer
    their telephones or they disconnect the phone during the day to
    avoid telemarketing calls. These commenters support the adoption of
    a one-step option for those consumers that desire to reduce the
    number of unwanted solicitation calls that they receive each day.

20. Many consumers indicate that their state lists have reduced the
    number of unwanted calls that they receive and express concern that
    any federal do-not-call registry not undermine the protections
    afforded by the state do-not-call laws.[^89] Assuming that a
    national do-not-call database is adopted, commenters encourage the
    Commission to work closely with the FTC to adopt a single national
    registry that operates as consistently and efficiently as possible
    for all interested parties.[^90] State regulators generally support
    a national database provided that it does not preempt state
    do-not-call rules or preclude the states from enforcing these
    laws.[^91]

21. Industry representatives generally oppose the adoption of a national
    do-not-call database, but some support this approach provided the
    Commission adopts an established business relationship exemption and
    preempts state lists.[^92] These commenters contend that the
    concerns noted by the Commission in 1992, including the costs,
    accuracy, and privacy issues involved in creating and maintaining
    such a database remain valid today.[^93] In addition, industry
    commenters argue that a national do-not-call database is not
    necessary because the current rules are sufficient to protect
    consumer privacy rights.[^94] Several note the economic importance
    of telemarketing and indicate that a national registry would have
    severe economic consequences for their industry.[^95] Several
    industry representatives request specific exemptions from the
    national do-not-call requirements for newspapers, magazines,
    insurance companies and small businesses.[^96] These commenters
    contend that they provide valuable goods or services to the public
    and that telemarketing is the most cost-effective means to promote
    those services.[^97] Representatives of various non-profit
    organizations oppose any extension of the national do-not-call rules
    to their organizations.[^98] Several commenters argue that a
    national registry would impose an unconstitutional restriction on
    commercial speech.[^99] They urge more stringent enforcement of the
    Commission's current rules.

22. *[FTC Order]{.underline}*. On December 18, 2002, the FTC released an
    order establishing a national do-not call registry.[^100] The FTC
    cited an extensive record that revealed that the current rules on
    telemarketing were not sufficient to protect consumer privacy. The
    FTC's do-not-call rules provide several options for consumers to
    manage telemarketing calls -- one of which is to allow consumers who
    do not want to receive telephone solicitation calls to register
    their telephone number with a national do-not-call database.[^101]
    The FTC indicates that consumers may do so at no cost by two
    methods: either through a toll-free call from the phone number that
    they wish to register or over the Internet.[^102] Consumer
    registrations will remain valid for a period of five years, with the
    registry purged on a monthly basis of numbers that have been
    disconnected or reassigned. Each seller engaged in telemarketing or
    on whose behalf telemarketing is conducted will be required to pay
    an annual fee for access to the database based on the number of area
    codes of data that the company wishes to access.[^103] The only
    consumer information that telemarketers will receive from the
    national registry is the registrants' telephone numbers. The FTC's
    rules prohibit the sale, purchase, rental, lease, or use of the
    national registry for any purpose other than compliance with the
    do-not-call provision.[^104]

23. The FTC's national do-not-call rules will not apply to those
    entities over which it has no jurisdiction, including common
    carriers, banks, insurance companies, and airlines. The FTC rules
    also will not apply to intrastate telemarketing calls. In addition,
    the FTC exempts certain types of calls from the national do-not-call
    provisions. Specifically, the FTC has established exemptions for
    calls made by or on behalf of charitable organizations,[^105] calls
    to consumers with whom the seller has an "established business
    relationship"[^106] (as long as the consumer has not asked to be
    placed on the seller's company-specific do-not-call list), and calls
    to businesses. The FTC also decided to retain the provision of its
    rules that allows sellers to obtain the express agreement of
    consumers who wish to receive calls from that seller. The FTC
    requires that such express agreement be evidenced by a signed,
    written agreement. As a result, consumers registered on the national
    do-not-call list may continue to receive calls from those sellers
    that have acquired their express agreement. The FTC also adopted a
    "safe harbor" from liability under its do-not-call provisions
    concluding that sellers or telemarketers that have made a good faith
    effort to provide consumers with an opportunity to exercise their
    do-not-call rights should not be liable for violations that result
    from an error.[^107] The FTC clarified that because wireless
    subscribers are often charged for the calls they receive, they will
    be allowed to register their wireless telephone numbers on the
    national do-not-call database.

24. The FTC concluded that it does not intend its rules establishing a
    national do-not-call registry to preempt state do-not-call laws. The
    FTC indicated its desire to work with those states that have enacted
    such laws, as well as this Commission, to articulate requirements
    and procedures during what it anticipates will be a relatively short
    transition period leading to one harmonized registry system. The FTC
    has articulated a goal whereby consumers, in a single transaction,
    can register their requests not to receive calls to solicit sales of
    goods or services, and sellers and telemarketers can obtain a single
    list to ensure that they do not contravene consumer requests not to
    be called.[^108]

## Discussion

25. As discussed in greater detail below, we conclude that the record
    compiled in this proceeding supports the establishment of a single
    national database of telephone numbers of residential subscribers
    who object to receiving telephone solicitations. Consistent with the
    mandate of Congress in the Do-Not-Call Act, the national do-not-call
    rules that we establish in this order "maximize consistency" with
    those of the FTC.[^109] The record clearly demonstrates widespread
    consumer dissatisfaction with the effectiveness of the current rules
    and network technologies available to protect consumers from
    unwanted telephone solicitations.[^110] Indeed, many consumers
    believe that with the advent of such technologies as predictive
    dialers that the vices of telemarketing have become inherent, while
    its virtues remain accidental. We have compared and evaluated
    alternative methods to a national do-not-call list for protecting
    consumer privacy rights and conclude that these alternatives are
    costly and/or ineffective for both telemarketers and
    consumers.[^111]

26. A national do-not-call registry that is supplemented by the
    amendments made to our existing rules will provide consumers with a
    variety of options for managing telemarketing calls. Consumers may
    now: (1) place their number on the national do-not-call list; (2)
    continue to make do-not-call requests of individual companies on a
    case-by-case basis; and/or (3) register on the national list, but
    provide specific companies with express permission to call them.
    Telemarketers may continue to call individuals who do not place
    their numbers on a do-not-call list and consumers with whom they
    have an established business relationship. We believe this result is
    consistent with Congress' directive in the TCPA that
    "\[i\]ndividuals' privacy rights, public safety interests, and
    commercial freedoms of speech and trade must be balanced in a way
    that protects the privacy of individuals and permits legitimate
    telemarketing practices."[^112]

27. We agree with Congress that consistency in the underlying
    regulations and administration of the national do-not-call registry
    is essential to avoid consumer confusion and regulatory uncertainty
    in the telemarketing industry. In so doing, we emphasize that there
    will be one centralized national do-not-call database of telephone
    numbers. The FTC has set up and will maintain the national database,
    while both agencies will coordinate enforcement efforts pursuant to
    a forthcoming Memorandum of Understanding.[^113] The states will
    also play an important role in the enforcement of the do-not-call
    rules. The FTC has received funding approval from Congress to begin
    implementation of the national do-not-call registry. Because the FTC
    lacks jurisdiction over certain entities, including common carriers,
    banks, insurance companies, and airlines, those entities would be
    allowed to continue calling individuals on the FTC's list absent FCC
    action exercising our broad authority given by Congress over
    telemarketers. In addition, the FTC's jurisdiction does not extend
    to intrastate activities. Action by this Commission to adopt a
    national do-not-call list, as permitted by the TCPA, requires all
    commercial telemarketers to comply with the national do-not-call
    requirements, thereby providing more comprehensive protections to
    consumers and consistent treatment of telemarketers.

### National Do-Not-Call Registry

28. Pursuant to our authority under section 227(c), we adopt a national
    do-not-call registry that will provide residential consumers with a
    one-step option to prohibit unwanted telephone solicitations. This
    registry will be maintained by the FTC. Consistent with the FTC's
    determination, the national registry will become effective on
    October 1, 2003.[^114] Subject to the exemptions discussed below,
    telemarketers will be prohibited from contacting those consumers
    that register their telephone numbers on the national list. In
    reaching this conclusion, we agree with the vast majority of
    consumers in this proceeding and the FTC that a national do-not-call
    registry is necessary to enhance the privacy interests of those
    consumers that do not wish to receive telephone solicitations. In
    response to the widespread consumer dissatisfaction with
    telemarketing practices, Congress has recently affirmed its support
    of a national do-not-call registry in approving funding for the
    FTC's national database.[^115] In so doing, Congress has indicated
    that this Commission should adopt rules that "maximize consistency"
    with those of the FTC.[^116] The record in this proceeding is
    replete with examples of consumers that receive numerous unwanted
    calls on a daily basis.[^117] The increase in the number of
    telemarketing calls over the last decade combined with the
    widespread use of such technologies as predictive dialers has
    encroached significantly on the privacy rights of consumers.[^118]
    For example, the effectiveness of the protections afforded by the
    company-specific do-not-call rules have been reduced significantly
    by dead air and hang-up calls that result from predictive dialers.
    In these situations, consumers have no opportunity to invoke their
    do-not-call rights and the Commission cannot pursue enforcement
    actions. As detailed previously, such intrusions have led many
    consumers to disconnect their phones during portions of the day or
    avoid answering their telephones altogether. The adoption of a
    national do-call-list will be an important tool for consumers that
    wish to exercise control over the increasing number of unwanted
    telephone solicitation calls.

29. Although some industry commenters attempt to characterize unwanted
    solicitation calls as petty annoyances and suggest that consumers
    purchase certain technologies to block unwanted calls, the evidence
    in this record leads us to believe the cumulative effect of these
    disruptions in the lives of millions of Americans each day is
    significant. As a result, we conclude that adoption of a national
    do-not-call list is now warranted. We believe that consumers should,
    at a minimum, be given the opportunity to determine for themselves
    whether or not they wish to receive telephone solicitation calls in
    their homes. The national do-not-call list will serve as an option
    for those consumers who have found the company-specific list and
    other network technologies ineffective. The telephone network is the
    primary means for many consumers to remain in contact with public
    safety organizations and family members during times of illness or
    emergency. Consumer frustration with telemarketing practices has
    reached a point in which many consumers no longer answer their
    telephones while others disconnect their phones during some hours of
    the day to maintain their privacy. We agree with consumers that
    incessant telephone solicitations are especially burdensome for the
    elderly, disabled, and those that work non-traditional hours.[^119]
    Persons with disabilities are often unable to register do-not-call
    requests on many company-specific lists because many telemarketers
    lack the equipment necessary to receive that request.[^120] Given
    the record evidence, along with Congress's recent affirmative
    support for a national do-not-call registry, we adopt a national
    do-not-call registry.[^121] As discussed more fully below, however,
    we are mindful of the need to balance the privacy concerns of
    consumers with the interests of legitimate telemarketing practices.
    Therefore, we have provided for certain exemptions to the national
    do-not-call registry.

30. While we agree that concerns regarding the cost, accuracy, and
    privacy of a national do-not-call database remain relevant, we
    believe that circumstances have changed significantly since the
    Commission first reviewed this issue over a decade ago such that
    they no longer impose a substantial obstacle to the implementation
    of a national registry. As several commenters in this proceeding
    note, advances in computer technology and software now make the
    compilation and maintenance of a national database a more reasonable
    proposition.[^122] In addition, considerable experience has been
    gained through the implementation of many state do-not-call lists.
    In 1992, it was estimated by some commenters that the cost of
    establishing such a list in the first year could be as high as \$80
    million. As noted above, Congress has recently reviewed and approved
    the FTC's request for \$18.1 million to fund the national
    do-not-call list.[^123] We believe that the advent of more efficient
    technologies and the experience acquired in dealing with similar
    databases at the state level is responsible for this substantial
    reduction in cost.

31. Similarly, we believe that technology has become more proficient in
    ensuring the accuracy of a national database. The FTC indicates that
    to guard against the possibility of including disconnected or
    reassigned telephone numbers, technology will be employed on a
    monthly basis to check all registered telephone numbers against
    national databases, and remove those numbers that have been
    disconnected or reassigned.[^124] The length of time that
    registrations remain valid also directly affects the accuracy of the
    registry as telephone numbers change hands over time. As discussed
    more fully below, we conclude that the retention period for both the
    national and company-specific do-not-call requests will be five
    years.[^125] This is consistent with the FTC's determination and our
    own record that reveals that the current ten-year retention period
    for company-specific requests is too long given changes in telephone
    numbers. Consumers must also register their do-not-call requests
    from either the telephone number of the phone that they wish to
    register or via the Internet. The FTC will confirm the accuracy of
    such registrations through the use of automatic number
    identification (ANI)[^126] and other technologies. We believe 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.

32. We conclude that appropriate action has been taken to ensure the
    privacy of those registering on the national list. Specifically, the
    only consumer information telemarketers and sellers will receive
    from the national registry is the registrant's telephone
    number.[^127] This is the minimum amount of information that can be
    provided to implement the national registry. We note that the
    majority of telephone numbers are publicly available through
    telephone directories. To the extent that consumers have an unlisted
    number, the consumer will have to make a choice as to whether they
    prefer to register on a national do-not-call list or maintain
    complete anonymity. We reiterate, however, that the only information
    that will be provided to the telemarketer is the telephone number of
    the consumer.[^128] No corresponding name or address information
    will be provided. We believe that this approach reduces the privacy
    concerns of such consumers to the greatest extent possible. As an
    additional safeguard, we find that restrictions should be imposed on
    the use of the national list. Consistent with the FTC's
    determination and section 227(c)(3)(K), we conclude that no person
    or entity may sell, rent, lease, purchase, or use the national
    do-not-call database for any purpose except compliance with section
    227 and any such state or federal law to prevent telephone
    solicitations to telephone numbers on such list.[^129] We conclude
    that these safeguards adequately protect the privacy rights of those
    consumers who choose to register on the national do-not-call list.

33. We conclude that the national database should allow for the
    registration of wireless telephone numbers, and that such action
    will better further the objectives of the TCPA and the Do-Not-Call
    Act. In so doing, we agree with the FTC and several commenters that
    wireless subscribers should not be excluded from the protections of
    the TCPA, particularly the option to register on a
    national-do-not-call list.[^130] Congress has indicated its intent
    to provide significant protections under the TCPA to wireless
    users.[^131] Allowing wireless subscribers to register on a national
    do-not-call list furthers the objectives of the TCPA, including
    protection for wireless subscribers from unwanted telephone
    solicitations for which they are charged.

34. Nextel argues, however, that, because the "TCPA only authorizes the
    Commission to regulate solicitations to 'residential telephone
    subscribers,'" wireless subscribers may not participate in the
    do-not-call list.[^132] Nextel states we should define "residential
    subscribers" to mean "telephone service used primarily for
    communications in the subscriber's residence."[^133] However,
    Nextel's application would result in "\[a\]t most, the Commission
    \[having the\] authority to regulate solicitations to wireless
    subscribers in those circumstances where wireless service actually
    has displaced a residential land line, and functions as a consumer's
    primary residential telephone service."[^134]

35. Nextel's definition of "residential subscribers" is far too
    restrictive and inconsistent with the intent of section 227.
    Specifically, there is nothing in section 227 to suggest that only a
    customer's "primary residential telephone service" was all that
    Congress sought to protect through the TCPA. In addition, had
    Congress intended to exclude wireless subscribers from the benefits
    of the TCPA, it knew how to address wireless services or consumers
    explicitly. For example, in section 227(b)(1), Congress specifically
    prohibited calls using automatic telephone dialing systems or
    artificial or prerecorded voice to telephone numbers assigned to
    "paging service \[or\] cellular telephone service . . . ." Moreover,
    under Nextel's definition, even consumers who use their wireless
    telephone service in their homes to supplement their residential
    wireline service, such as by using their wireless telephone service
    to make long distance phone calls to avoid wireline toll charges,
    would be excluded from the protections of the TCPA. Such an
    interpretation is at odds even with Nextel's own reasoning for its
    definition -- that the TCPA's goal is "to curb the 'pervasive' use
    of telemarketing 'to market goods and services to the home'."[^135]
    As described, it is well-established that wireless subscribers often
    use their wireless phones in the same manner in which they use their
    residential wireline phones.[^136] Indeed, as even Nextel
    recognizes, there is a growing number of consumers who no longer
    maintain wireline phone service, and rely only on their wireless
    telephone service. Thus, we are not persuaded by Nextel's arguments.

36. Moreover, we believe it is more consistent with the overall intent
    of the TCPA to allow wireless subscribers to benefit from the full
    range of TCPA protections. As indicated above, Congress afforded
    wireless subscribers particular protections in the context of
    autodialers and prerecorded calls.[^137] In addition, although
    Congress expressed concern with residential privacy, it also was
    concerned with the nuisance, expense and burden that telephone
    solicitations place on consumers.[^138] Therefore, we conclude that
    wireless subscribers may participate in the national do-not-call
    list. As a practical matter, since determining whether any
    particular wireless subscriber is a "residential subscriber" may be
    more fact-intensive than making the same determination for a
    wireline subscriber, we will presume wireless subscribers who ask to
    be put on the national do-not-call list to be "residential
    subscribers."[^139] Such a presumption, however, may require a
    complaining wireless subscriber to provide further proof of the
    validity of that presumption should we need to take enforcement
    action.

37. We emphasize that it is not our intent in adopting a national
    do-not-call list to prohibit legitimate telemarketing practices. We
    believe that industry commenters present a false choice between the
    continued viability of the telemarketing industry and the adoption
    of a national do-not-call list. We are not persuaded that the
    adoption of a national do-not-call list will unduly interfere with
    the ability of telemarketers to contact consumers. Many consumers
    will undoubtedly take advantage of the opportunity to register on
    the national list. Several industry commenters suggest, however,
    that consumers derive substantial benefits from telephone
    solicitations. If so, many such consumers will choose not to
    register on the national do-not-call list and will opt instead to
    make do-not-call requests on a case-by-case basis or give express
    permission to be contacted by specific companies.[^140] In addition,
    as discussed further below, we have provided for certain exemptions
    to the do-not-call registry in recognition of legitimate
    telemarketing business practices. For example, sellers of goods or
    services via telemarketing may continue to contact consumers on the
    national list with whom they have an established business
    relationship. We also note that calls that do not fall within the
    definition of "telephone solicitation" as defined in section
    227(a)(3) will not be precluded by the national do-not-call list.
    These may include surveys, market research, political or religious
    speech calls.[^141] The national do-not-call rules will also not
    prohibit calls to businesses and persons with whom the marketer has
    a personal relationship. Telemarketers may continue to contact all
    of these consumers despite the adoption of a national do-not-call
    list. Furthermore, we decline to adopt more restrictive do-not-call
    requirements on telemarketers as suggested by several commenters.
    For example, we decline to adopt an "opt-in" approach that would ban
    telemarketing to any consumer who has not expressly agreed to
    receive telephone solicitations. We believe that establishing such
    an approach would be overly restrictive on the telemarketing
    industry. As discussed more fully below, we also decline to extend
    the national do-not-call requirements to tax-exempt nonprofit
    organizations or entities that telemarket on behalf of nonprofit
    organizations.

38. We agree with the FTC 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.[^142] A seller or telemarketer acting on
    behalf of the seller that has made a good faith effort to provide
    consumers with an opportunity to exercise their do-not-call rights
    should not be liable for violations that result from an error.
    Consistent with the FTC, we conclude that a seller or the entity
    telemarketing on behalf of the seller will not be liable for
    violating the national do-not-call rules if it can demonstrate that,
    as part of the seller's or telemarketer's routine business
    practice: (i) it has established and implemented written procedures
    to comply with the do-not-call rules; (ii) it has trained its
    personnel, and any entity assisting in its compliance, in the
    procedures established pursuant to the do-not-call rules; (iii) the
    seller, or telemarketer acting on behalf of the seller, has
    maintained and recorded a list of telephone numbers the seller may
    not contact; (iv) the seller or telemarketer uses a process to
    prevent telemarketing to any telephone number on any list
    established pursuant to the do-not-call rules employing a version of
    the do-not-call registry obtained from the administrator of the
    registry no more than three months prior to the date any call is
    made, and maintains records documenting this process; and (v) any
    subsequent call otherwise violating the do-not-call rules is the
    result of error.[^143] We acknowledge that the three-month safe
    harbor period for telemarketers may prove to be too long to benefit
    some consumers. The national do-not-call list has the capability to
    process new registrants virtually instantaneously and telemarketers
    will have the capability to download the list at any time at no
    extra cost. The Commission intends to carefully monitor the impact
    of this requirement pursuant to its annual report to Congress and
    may consider a shorter time frame in the future.

39. As required by section 227(c)(1)(A), we have compared and evaluated
    the advantages and disadvantages of certain alternative methods to
    protect consumer privacy including the use of network technologies,
    special directory markings, and company-specific lists in adopting a
    national do-not-call database.[^144] As noted below, the
    effectiveness of the company-specific approach has significantly
    eroded as a result of hang-up and "dead air" calls from predictive
    dialers. Consumers in these circumstances have no opportunity to
    assert their do-not-call rights. As discussed more fully below, we
    believe that, as a stand-alone option, the company-specific approach
    no longer provides consumers with sufficient privacy protections. We
    also conclude that the availability of certain network technologies
    to reduce telephone solicitations is often ineffective and costly
    for consumers. Although technology has improved to assist consumers
    in blocking unwanted calls, it has also evolved in such a way as to
    assist telemarketers in making greater numbers of calls and even
    circumventing such blocking technologies.[^145] Millions of
    consumers continue to register on state do-not-call lists despite
    the availability of such technologies. Several commenters note that
    they continue to receive unwanted calls despite paying for
    technologies to reduce telephone solicitations.[^146] Several
    commenters also note that telemarketers routinely block transmission
    of caller ID. In particular, we are concerned that the cost of
    technologies such as caller ID, call blocking, and other such tools
    in an effort to reduce telemarketing calls fall entirely on the
    consumer. We believe that reliance on a solution that places the
    cost of reducing the number of unwanted solicitation calls entirely
    on the consumer is inconsistent with Congress' intent in the
    TCPA.[^147] For the reasons outlined in the *1992 TCPA Order*, we
    also decline to adopt special area codes or prefixes for
    telemarketers.[^148] We believe this option is costly for
    telemarketers that would be required to change their telephone
    numbers and administratively burdensome to implement. We also
    decline to adopt special directory markings of area white page
    directories because it would require telemarketers to purchase and
    review thousands of local telephone directories, at great cost to
    the telemarketers.[^149] We also note that telemarketers often
    compile solicitation lists from many sources other than local
    telephone directories. In addition, such directories do not include
    unlisted or unregistered telephone numbers and are often updated
    infrequently. We also note that the record in this proceeding
    provides little support for this option.

40. We now review the other requirements of section 227(c)(1). As
    required by section 227(c)(1)(B), we have evaluated AT&T Government
    Solutions, the entity selected by the FTC to administer the national
    database, and conclude that it has the capacity to establish and
    administer the national database.[^150] Congress has reviewed and
    approved funding for the implementation of that database. We believe
    that it is unnecessary to evaluate any other such entities at this
    time. As discussed in greater detail below, we have considered
    whether different methods and procedures should apply for local
    telephone solicitations and small businesses as required by section
    227(c)(1)(C).[^151] For the reasons outlined below, we conclude that
    the national do-not-call database takes into consideration the costs
    of those conducting telemarketing on a local or regional basis,
    including many small businesses. In particular, we note that the
    national do-not-call database will permit access to five or fewer
    area codes at no cost to the seller. Pursuant to section
    227(c)(1)(D), we have considered whether there is a need for
    additional authority to further restrict telephone solicitations. We
    conclude that no such authority is required at this time.[^152]
    Pursuant to the Do-Not-Call Act, the Commission must report to
    Congress on an annual basis the effectiveness of the do-not-call
    registry. Should the Commission determine that additional authority
    is required over telephone solicitations as part of that analysis;
    the Commission will propose specific restrictions pursuant to that
    report. As required by section 227(c)(1)(E), we have developed
    regulations to implement the national do-not-call database in the
    most effective and efficient manner to protect consumer privacy
    needs while balancing legitimate telemarketing interests.

41. As noted above, the FTC's decision to adopt a national do-not-call
    list is currently under review in federal district court.[^153]
    Because Congress has approved funding for the administration of the
    national list only for the FTC, this Commission would be forced to
    stay implementation of any national list should the plaintiffs
    prevail in one of those proceedings.

### Exemptions

42. *[Established Business Relationship]{.underline}*. We agree with the
    majority of industry commenters that an exemption to the national
    do-not-call list should be created for calls to consumers with whom
    the seller has an established business relationship.[^154] We note
    that section 227(a)(3) excludes from the definition of telephone
    solicitation calls made to any person with whom the caller has an
    established business relationship.[^155] We believe the ability of
    sellers to contact existing customers is an important aspect of
    their business plan and often provides consumers with valuable
    information regarding products or services that they may have
    purchased from the company. For example, magazines and newspapers
    may want to contact customers whose subscriptions have or soon will
    expire and offer new subscriptions. This conclusion is consistent
    with that of the FTC and the majority of states that have adopted
    do-not-call requirements and considered this issue. As discussed in
    further detail below, we revise the definition of an established
    business relationship so that it is limited in duration to
    eighteen (18) months from any purchase or transaction and 3 months
    from any inquiry or application.[^156]

43. To the extent that some consumers oppose this exemption, we find
    that once a consumer has asked to be placed on the seller's
    company-specific do-not-call list, the seller may not call the
    consumer again regardless of whether the consumer continues to do
    business with the seller. We believe this determination constitutes
    a reasonable balance between the interests of consumers that may
    object to such calls with the interests of sellers in contacting
    their customers. This conclusion is also consistent with that of the
    FTC.

44. *[Prior Express Permission]{.underline}*. In addition to the
    established business relationship exemption, we conclude that
    sellers may contact consumers registered on a national do-not-call
    list if they have obtained the prior express permission of those
    consumers. We note that section 227(a)(3) excludes from the
    definition of telephone solicitation calls to any person with "that
    person's prior express invitation or permission."[^157] Consistent
    with the FTC's determination, we conclude that for purposes of the
    national do-not-call list such express permission must be evidenced
    only by a signed, written agreement between the consumer and the
    seller which states that the consumer agrees to be contacted by this
    seller, including the telephone number to which the calls may be
    placed.[^158] Consumers registered on the national list may wish to
    have the option to be contacted by particular entities. Therefore,
    we conclude that sellers may obtain the express written agreement to
    call such consumers. The express agreement between the parties shall
    remain in effect as long as the consumer has not asked to be placed
    on the seller's company-specific do-not-call list. If the consumer
    subsequently requests not to be called, the seller must cease
    calling the consumer regardless of whether the consumer continues to
    do business with the seller. We also note that telemarketers may not
    call consumers on the national do-not-call list to request their
    written permission to be called unless they fall within some other
    exemption. We believe that to allow such calls would circumvent the
    purpose of this exemption. Prior express permission must be obtained
    by some other means such as direct mailing.

45. *[Tax-Exempt Nonprofit Organizations]{.underline}*. We agree with
    those commenters that contend that the national do-not-call
    requirements should not be extended to tax-exempt nonprofit
    organizations or calls made by independent telemarketers on behalf
    of tax-exempt nonprofit organizations.[^159] We note that section
    227(a)(3) specifically excludes calls made by tax-exempt nonprofit
    organizations from the definition of telephone solicitation.[^160]
    In so doing, we believe Congress clearly intended to exclude
    tax-exempt nonprofit organizations from prohibitions on telephone
    solicitations under the TCPA. The legislative history indicates that
    commercial calls constitute the bulk of all telemarketing
    calls.[^161] A number of commenters and the FTC agree with Congress'
    conclusion as it relates to a national do-not-call list.[^162] For
    this reason, we decline to extend the national do-not-call
    requirements to tax-exempt nonprofit organizations. A few commenters
    seek clarification that requests for blood donations will be exempt
    from the national do-not-call list.[^163] When such requests are
    made by tax-exempt nonprofit organizations, they will fall within
    the exemption for tax-exempt nonprofit organizations.

46. *[Others]{.underline}*. We decline to create specific exemptions to
    the national do-not-call requirements for entities such as
    newspapers, magazines, regional telemarketers, or small
    businesses.[^164] For the reasons discussed above, we find
    unpersuasive arguments that application of the national do-not-call
    database adopted herein will result in severe economic consequences
    for these entities. In particular, we note the exemptions adopted
    for calls made to consumers with whom the seller has an established
    business relationship and those that have provided express agreement
    to be called. As noted, many consumers may also determine not to
    register on the national database. Telemarketers may continue to
    contact all of these consumers. We believe these exemptions provide
    telemarketers with a reasonable opportunity to conduct their
    business while balancing consumer privacy interests. Although we
    agree that newspapers and other entities may often provide useful
    information and services to the public, given our conclusion that
    adoption of the national do-not-call list will not unduly interfere
    with the ability of telemarketers to reach consumers, we do not find
    this to be a compelling basis to exempt these entities.

47. We find that the national do-not-call rules adopted today do not
    apply to calls made to persons with whom the marketer has a personal
    relationship. As discussed herein, a "personal relationship" refers
    to an individual personally known to the telemarketer making the
    call. In such cases, we believe that calls to family members,
    friends and acquaintances of the caller will be both expected by the
    recipient and limited in number.[^165] Therefore, the two most
    common sources of consumer frustration associated with telephone
    solicitations -- high volume and unexpected solicitations -- are not
    likely present when such calls are limited to persons with whom the
    marketer has a personal relationship.[^166] Accordingly, we find
    that these calls do not represent the type of "telephone
    solicitations to which \[telephone subscribers\] object" discussed
    in section 227(c)(1). Moreover, we conclude that the Commission also
    has authority to recognize this limited carve-out pursuant to
    section 227(c)(1)(E). This subsection provides the Commission with
    discretion in implementing rules to protect consumer privacy to
    "develop proposed regulations to implement the methods and
    procedures that the Commission determines are the most effective and
    efficient to accomplish the purpose of this section."[^167] To the
    extent that any consumer objects to such calls, the consumer may
    request to be placed on the telemarketer's company's
    company-specific do-not-call list. We intend to monitor the rules we
    adopt today and caution that any individual or entity relying on
    personal relationships abusing this exemption may be subject to
    enforcement action.

48. In addition, we decline to extend this approach beyond persons that
    have a personal relationship with the marketer. For example, Vector
    urges the Commission to adopt an exemption that covers
    "face-to-face" appointment calls to anyone known personally to the
    "referring source."[^168] We note that such relationships become
    increasingly tenuous as they extend to individuals not personally
    known to the marketer and thus such calls are more likely to be
    unexpected to the recipient and more voluminous. Accordingly,
    referrals to persons that do not have a personal relationship with
    the marketer will not fall within the category of calls discussed
    above.

49. We also decline to establish an exemption for calls made to set
    "face-to-face" appointments per se.[^169] We conclude that such
    calls are made for the purpose of encouraging the purchase of goods
    and services and therefore fall within the statutory definition of
    telephone solicitation. We find no reason to conclude that such
    calls are somehow less intrusive to consumers than other commercial
    telephone solicitations. The FTC has reviewed this issue and reached
    the same conclusion.[^170] In addition, we decline to exempt
    entities that make a "*de minimis*" number of commercial
    telemarketing calls.[^171] In contrast to Congress' rationale for
    exempting nonprofit organizations, we believe that such commercial
    calls continue to be unexpected to consumers even if made in low
    numbers. As defined by one commenter, a *de minimis* number of calls
    would not be based on the total number of calls originating from one
    organization, but would be based on the number of calls placed by
    individual employees of the company.[^172] Thus, the telemarketing
    entity could circumvent the do-not-call regulations by hiring any
    number of individual marketers, so long as they each did not make
    more than 20 calls per day. We believe that such an exemption,
    extrapolated to the entire direct marketing industry, would result
    in a significant number of unwanted telephone solicitations. This
    would undoubtedly result in consumer confusion and frustration
    regarding the application of the national do-not-call rules. In
    addition, we believe that it would be difficult, if not impossible,
    to monitor and enforce such a requirement. For the reasons discussed
    below, we do not believe the costs to access the national database
    is unreasonable for any small business or entity making a "*de
    minimis*" number of calls.

50. In response to the *Further Notice*, a few commenters contend that
    any new rules the Commission adopts would not apply to entities
    engaged in the business of insurance, because such rules would
    conflict with the McCarran-Ferguson Act.[^173] The McCarran-Ferguson
    Act provides that "\[t\]he business of insurance \... shall be
    subject to the laws of the \... States which relate to the
    regulation \... of such business."[^174] The McCarran-Ferguson Act
    further provides that "\[n\]o Act of Congress shall be construed to
    invalidate, impair, or supersede any law enacted by any State for
    the purpose of regulating the business of insurance \... unless such
    Act specifically relates to the business of insurance."[^175]
    American Council of Life Insurers (ACLI) explains that insurers'
    marketing activities are extensively regulated at the state level.
    The Commission's proposal, ACLI argues, "intrudes upon the insurance
    regulatory framework established by the states" and, therefore,
    should not be applicable to insurers under McCarran-Ferguson.[^176]

51. The McCarran-Ferguson Act does not operate to exempt insurance
    companies wholesale from liability under the TCPA. It applies only
    when their activities constitute the "business of insurance," the
    state has enacted laws "for the purpose of regulating" the business
    of insurance, and the TCPA would "impair, invalidate, or supersede"
    such state laws.[^177] In the one case cited by commenters as
    addressing the interplay between McCarran-Ferguson and the TCPA, a
    federal district court dismissed a claim brought against two
    insurance companies under the TCPA for sending unsolicited facsimile
    advertisements.[^178] The *Chair King* court found that the TCPA
    conflicted with a Texas law that prohibited untrue, deceptive, or
    misleading advertising by insurers and their agents. In its
    analysis, the court determined that insurance advertising was part
    of the "business of insurance,"[^179] and that the Texas law in
    question was enacted for the purpose of regulating the business of
    insurance.[^180] The court then concluded that because the TCPA
    "prohibits unsolicited insurance advertising by facsimile while the
    Texas \[laws\] permit \[such\] advertising . . . so long as the
    advertisements are truthful and not misleading," the TCPA conflicts
    with the Texas law and is preempted under McCarran-Ferguson.[^181]

52. To the extent that any state law regulates the "business of
    insurance"[^182] and the TCPA is found to "invalidate, impair, or
    supersede" such state law, it is possible that a particular activity
    involving the business of insurance would not fall within the reach
    of the TCPA. Any determination about the applicability of
    McCarran-Ferguson, however, requires an analysis of the particular
    activity and State law regulating it. In addition, McCarran-Ferguson
    applies only to federal statutes that "invalidate, impair, or
    supersede" state insurance regulation. Courts have held that
    duplication of state law prohibitions by a federal statute do not
    "invalidate, impair, or supersede" state laws regulating the
    business of insurance.[^183] Nor is the mere presence of a
    regulatory scheme enough to show that a state statute is
    "invalidated, impaired or superseded."[^184]

53. We believe that the TCPA, which was enacted to protect consumer
    privacy interests, is compatible with states' regulatory
    interests.[^185] In fact, the TCPA permits States to enforce the
    provisions of the TCPA on behalf of residents of their State.[^186]
    In addition, we believe that uniform application of the national
    do-not-call registry to all entities that use the telephone to
    advertise best serves the goals of the TCPA. To exempt the insurance
    industry from liability under the TCPA would likely confuse
    consumers and interfere with the protections provided by Congress
    through the TCPA. Therefore, to the extent that the operation of
    McCarran-Ferguson on the TCPA is unclear, we will raise this issue
    in our Report to Congress as required by the Do-Not-Call Act.

54. We conclude that the national do-not-call mechanism established by
    the FTC and this Commission adequately takes into consideration the
    needs of small businesses and entities that telemarket on a local or
    regional basis in gaining access to the national database. As
    required by section 227(c)(1)(C), we have considered whether
    different procedures should apply for local solicitations and small
    businesses. We decline, however, to exempt such entities from the
    national do-not-call requirements. Given the large number of
    entities that solicit by telephone, and the technological tools that
    allow even small entities to make a significant number of
    solicitation calls, we believe that to do so would undermine the
    effectiveness of the national do-not-rules in protecting consumer
    privacy and create consumer confusion and frustration. In so doing,
    we conclude that the approach adopted herein satisfies section
    227(c)(4)'s requirement that the Commission, in developing
    procedures for gaining *access* to the database, consider the
    different needs of telemarketers conducting business on a national,
    regional, State, or local level and develop a fee schedule for
    recouping the cost of such database that recognizes such
    differences.[^187] The national database will be available for
    purchase by sellers on an area-code-by-area-code basis. The cost to
    access the database will vary depending on the number of area codes
    requested. Sellers need only purchase those area codes in which the
    seller intends to telemarket. In fact, sellers that request access
    to five or fewer area codes will be granted access to those area
    codes at no cost. We note that thirty-three states currently have
    five or fewer area codes. Thus, telemarketers or sellers operating
    on a "local" or "regional" basis within one of these thirty-three
    states will have access to all of that states' national do-not-call
    registrants at no cost. In addition, the national database will
    provide a single number lookup feature whereby a small number of
    telephone numbers can be entered on a web page to determine whether
    any of those numbers are included on the national registry. We
    believe this fee structure adequately reflects the needs of regional
    telemarketers, small business and those marketing on a *de minimis*
    level. For these reasons, we conclude that this approach will not
    place any unreasonable costs on small businesses.[^188]

### Section 227(c)(3) Requirements 

55. We conclude that the national do-not-call database adopted jointly
    by this Commission and the FTC satisfies each of the statutory
    requirements outlined in section 227(c)(3)(A)-(L). We now discuss
    each such requirement. Section 227(c)(3)(A) requires the Commission
    to specify the method by which an entity to administer the national
    database will be selected. On August 2, 2002, the FTC issued a
    Request for Quotes (RFQ) to selected vendors on GSA schedules
    seeking proposals to develop, implement, and operate the national
    registry. After evaluating those proposals, the FTC selected a
    competitive range of vendors and issued an amended RFQ to those
    vendors on November 25, 2002. After further evaluation, the FTC
    selected AT&T Government Solutions as the successful vendor for the
    national do-not-call database on March 1, 2003.[^189] As noted
    above, Congress has approved the necessary funding for
    implementation of the national database.

56. Pursuant to sections 227(c)(3)(B)-(C), we require each common
    carrier providing telephone exchange service to inform subscribers
    for telephone exchange service of the opportunity to provide
    notification that such subscriber objects to receiving telephone
    solicitations. Each telephone subscriber shall be informed, by the
    common carrier that provides local exchange service to that
    subscriber, of (i) the subscriber's right to give or revoke a
    notification of an objection to receiving telephone solicitations
    pursuant to the national database and (ii) the methods by which such
    rights may be exercised by the subscriber. Pursuant to section
    227(c)(3)(C), we conclude that, beginning on January 1, 2004, such
    common carriers shall provide an annual notice, via an insert in the
    customer's bill, to inform their subscribers of the opportunity to
    register or revoke registrations on the national do-not-call
    database. Although we do not specify the exact description or form
    that such notification should take, such notification must be clear
    and conspicuous. At a minimum, it must include the toll-free
    telephone number and internet address established by the FTC to
    register or revoke registrations on the national do-not-call
    database.

57. Section 227(c)(3)(D) requires the Commission to specify the methods
    by which registrations shall be collected and added to the database.
    As discussed above, consumers will be able to add their telephone
    numbers to the national do-not-call registry either through a
    toll-free telephone call or over the Internet.[^190] Consumers who
    choose to register by phone will have to call the registration
    number from the telephone line that they wish to register. Their
    calls will be answered by an Interactive Voice Response (IVR)
    system. The consumers will be asked to enter on their telephone
    keypad the telephone number from which the consumer is calling. This
    number will be checked against the ANI that is transmitted with the
    call. If the number entered matches the ANI, then the consumer will
    be informed that the number has been registered. Consumers who
    choose to register over the Internet will go to a website dedicated
    to the registration process where they will be asked to enter the
    telephone number they wish to register.[^191] We encourage the FTC
    to notify consumers in the IVR message that the national registry
    will prevent most, but not all, telemarketing calls. Specifically,
    we believe consumers should be informed that the do-not-call
    registry does not apply to tax-exempt nonprofit organizations and
    companies with whom consumers have an established business
    relationship. The effectiveness and value of the national registry
    depends largely on an informed public. Therefore, we also intend to
    emphasize in our educational materials and on our website the
    purpose and scope of the new rules.

58. Section 227(c)(3)(E) prohibits any residential subscriber from being
    charged for giving or revoking notification to be included on the
    national do-not-call database. As discussed above, consumers may
    register or revoke do-not-call requests either by a toll-free
    telephone call or over the Internet. No charge will be imposed on
    the consumer. Section 227(c)(3)(F) prohibits any person from making
    or transmitting a telephone solicitation to the telephone number of
    any subscriber included on the national database. Subject to the
    exemptions discussed above, we adopt rules herein that will prohibit
    telephone solicitations to those consumers that have registered on
    the national database.[^192]

59. Section 227(c)(3)(G) requires the Commission to specify (i) the
    methods by which any person deciding to make telephone solicitations
    will obtain access to the database, by area code or local exchange
    prefix, and (ii) the costs to be recovered from such persons.
    Section 227(c)(3)(H) requires the Commission to specify the methods
    for recovering, from the persons accessing the database, the costs
    involved in the operations of the database. To comply with the
    national do-not-call rules, telemarketers must gain access to the
    telephone numbers in the national database. Telemarketers will have
    access to the national database by means of a fully-automated,
    secure website dedicated to providing information to these
    entities.[^193] The first time a telemarketer accesses the system,
    the company will be asked to provide certain limited identifying
    information, such as name and address, contact person, and contact
    person's telephone number and address. If a telemarketer is
    accessing the registry on behalf of a client seller, the
    telemarketer will also need to identify that client.[^194] When a
    telemarketer first submits an application to access registry
    information, the company will be asked to specify the area codes
    they want to access. An annual fee will be assessed based upon the
    number of area codes requested.[^195] Each entity on whose behalf
    the telephone solicitation is being made must pay this fee via
    credit card or electronic funds transfer. After payment is
    processed, the telemarketer will be given an account number and
    permitted to access the appropriate portions of the registry.[^196]
    Telemarketers will be permitted to access the registry as often as
    they wish for no additional cost, once the annual fee is paid.

60. Section 227(c)(3)(I) requires the Commission to specify the
    frequency with which the national database will be updated and
    specify the method by which such updates will take effect for
    purposes of compliance with the do-not-call regulations. Because the
    registration process will be completely automated, updates will
    occur continuously. Consumer registrations will be added to the
    registry at the same time they register - or at least within a few
    hours after they register. As discussed above, the safe harbor
    provision requires telemarketers to employ a version of the registry
    obtained not more than three months before any call is made. Thus,
    telemarketers will be required to update their lists at least
    quarterly. Instead of making the list available on specific dates,
    the registry will be available for downloading on a constant basis
    so that telemarketers can access the registry at any time.[^197] As
    a result, each telemarketer's three-month period may begin on
    different dates.[^198] In addition, the administrator will check all
    telephone numbers in the do-not-call registry each month against
    national databases, and those numbers that have been disconnected or
    reassigned will be removed from the registry.[^199] We encourage
    parties that may have specific recommendations on ways to improve
    the overall accuracy of the database in removing disconnected and
    reassigned telephone numbers to submit such proposals to our
    attention and to the FTC directly.

61. Section 227(c)(3)(J) requires that the Commission's regulations be
    designed to enable states to use the database for purposes of
    administering or enforcing state law.[^200] Section 227(c)(3)(K)
    prohibits the use of the database for any purpose other than
    compliance with the do-not-call rules and any such state law and
    requires the Commission to specify methods for protection of the
    privacy rights of persons whose numbers are included in such
    database. Consistent with the determination of the FTC, we conclude
    that any law enforcement agency that has responsibility to enforce
    federal or state do-not-call rules or regulations will be permitted
    to access the appropriate information in the national
    registry.[^201] This information will be obtained through a secure
    Internet website. Such law enforcement access to data in the
    national registry is critical to enable state Attorneys General,
    public utility commissions or an official or agency designated by a
    state, and other appropriate law enforcement officials to gather
    evidence to support enforcement of the do-not-call rules under the
    state and federal law. In addition, as discussed above, we have
    imposed restrictions on the use of the national list.[^202]
    Consistent with the FTC's determination, we have concluded that no
    person or entity may sell, rent, lease, purchase, or use the
    national do-not-call database for any purpose except compliance with
    section 227 and any such state or federal law to prevent telephone
    solicitations to telephone numbers on such list. We specifically
    prohibit any entity from purchasing this list from any entity other
    than the national do-not-call administrator or dispensing the list
    to any entity that has not paid the required fee to the
    administrator. The only information that will be made available to
    telemarketers is the telephone number of consumers registered on the
    list. Given the restrictions imposed on the use of the national
    database and the limited amount of information provided, we believe
    that adequate privacy protections have been established for
    consumers.

62. Section 227(c)(3)(L) requires each common carrier providing services
    to any person for the purpose of making telephone solicitations to
    notify such person of the requirements of the national do-not-call
    rules and the regulations thereunder. We therefore require common
    carriers, beginning January 1, 2004, to make a one-time notification
    to any person or entity making telephone solicitations that is
    served by that carrier of the national do-not-call requirements. We
    do not specify the exact description or form that such notification
    should take. At a minimum, it must include a citation to the
    relevant federal do-not-call rules as set forth in 47 C.F.R. §
    64.1200 and 16 C.F.R. Part 310, respectively. Although we recognize
    that carriers may not be capable of identifying every person or
    entity engaged in telephone solicitations served by that carrier, we
    require carriers to make reasonable efforts to comply with this
    requirement. We note that failure to give such notice by the common
    carrier to a telemarketer served by that carrier will not excuse the
    telemarketer from violations of the Commission's rules.

### Constitutionality

63. We conclude that a national do-not-call registry is consistent with
    the First Amendment. As discussed in more detail below, we believe,
    like the FTC, that our regulations satisfy the criteria set forth in
    *Central Hudson Gas & Elec. v. Pub. Serv. Comm. of N.Y.*, in which
    the Supreme Court established the applicable analytical framework
    for determining the constitutionality of a regulation of commercial
    speech.[^203] Our conclusion is also consistent with every Court of
    Appeals decision that has considered First Amendment challenges to
    the TCPA.[^204]

64. Under the framework established in *Central Hudson*, a regulation of
    commercial speech will be found compatible with the First Amendment
    if (1) there is a substantial government interest; (2) the
    regulation directly advances the substantial government interest;
    and (3) the proposed regulations are not more extensive than
    necessary to serve that interest.[^205] Under the first prong, we
    find that there is a substantial governmental interest in protecting
    residential privacy. The Supreme Court has "repeatedly held that
    individuals are not required to welcome unwanted speech into their
    homes and that the government may protect this freedom."[^206]

65. In particular, the government has an interest in upholding the right
    of *residents* to bar unwanted speech from their homes. In *Rowan v.
    United States Post Office*, the Supreme Court upheld a statute that
    permitted a person to require that a mailer remove his name from its
    mailing lists and stop all future mailings to the resident:

    The Court has traditionally respected the right of a householder to
    bar, by order or notice, solicitors, hawkers, and peddlers from his
    property. In this case the mailer's right to communicate is
    circumscribed only by an affirmative act of the addressee giving
    notice that he wishes no further mailings from that mailer. . . . In
    effect, Congress has erected a wall -- or more accurately permits a
    citizen to erect a wall -- that no advertiser may penetrate without
    his acquiescence.[^207]

66. Here, the record supports that the government has a substantial
    interest in regulating telemarketing calls. In 1991, Congress held
    numerous hearings on telemarketing, finding, among other things,
    that "\[m\]ore than 300,000 solicitors call more than 18,000,000
    Americans every day" and "\[u\]nrestricted telemarketing can be an
    intrusive invasion of privacy and, when an emergency or medical
    assistance telephone line is seized, a risk to public safety.[^208]
    Our record, like the FTC's, demonstrates that telemarketing calls
    are even more of an invasion of privacy than they were in 1991. The
    number of daily calls has increased five fold (to an estimated 104
    million), due in part to the use of new technologies, such as
    predictive dialers.[^209] An overwhelming number of consumers in the
    approximately 6,500 commenters in this proceeding support the
    adoption and implementation of a national do-not-call registry. In
    addition to citing concerns about the numerous and ever-increasing
    number of calls, they complain about the inadequacies of the
    company-specific approach, the burdens of such calls on the elderly
    and people with disabilities, and the costs of acquiring
    technologies to reduce the number of unwanted calls.[^210]
    Accordingly, we believe that the record demonstrates that
    telemarketing calls are a substantial invasion of residential
    privacy, and regulations that address this problem serve a
    substantial government interest.

67. Under *Central Hudson's* second prong, we find that the Commission's
    regulations directly advance the substantial government interest.
    Under this prong, the government must demonstrate that "the harms it
    recites are real and that its restriction will in fact alleviate
    them to a material degree."[^211] It may justify the restrictions on
    speech "based solely on history, consensus, and 'simple common
    sense.'"[^212] Creating and implementing a national do-not-call
    registry will directly advance the government's interest in
    protecting residential privacy from unwanted telephone
    solicitations. Congress, consumers, state governments and the FTC
    have reached the same conclusion. The history of state administered
    do-not-call lists demonstrates that such do-not-call programs have a
    positive impact on the ability of many consumers to protect their
    privacy by reducing the number of unwanted telephone solicitations
    that they receive each day.[^213] As noted above, Congress has
    reviewed the FTC's decision to establish a national do-not-call list
    and concluded that the do-not-call initiative will provide
    significant benefits to consumers throughout the United
    States.[^214] We reject the arguments that because our do-not-call
    registry provisions do not apply to tax-exempt nonprofit
    organizations, our regulations do not directly and materially
    advance the government interest of protecting residential
    privacy.[^215] "Government \[need not\] make progress on every front
    before it can make progress on any front."[^216]

68. We believe that the facts here are easily distinguishable from those
    in *Rubin v. Coors Brewing Company*, 514 U.S. 476 (1995) and *City
    of Cincinnati v. Discovery Network,* 507 U.S. 410 (1993). In
    *Coors*, the Court struck down a prohibition against disclosure of
    alcoholic content on labels or in advertising that applied to beer
    but not to wine or distilled spirits, finding that "the
    irrationality of this unique and puzzling regulatory framework
    ensures that the labeling ban will fail to achieve \[the
    Government's interest in combating strength wars.\]" In *Discovery
    Network,* the Court struck down an ordinance which banned 62
    newsracks containing commercial publications but did not ban
    1,500-2,000 newsracks containing newspapers, finding that "the
    distinction bears no relationship *whatsoever* to the particular
    \[aesthetic\] interests that the city has asserted." Here, Congress'
    decision to exclude tax-exempt nonprofit organizations from the
    definition of telemarketing in the TCPA was both rational and
    related to its interest in protecting residential privacy. The House
    Report finds that "the record suggests that most unwanted telephone
    solicitations are commercial in nature. . . .\[T\]he Committee also
    reached the conclusion, based on the evidence, that ... calls \[from
    tax-exempt nonprofit organizations\] are less intrusive to consumers
    because they are more expected. Consequently, the two main sources
    of consumer problems -- high volume of solicitations and unexpected
    solicitations -- are not present in solicitations by nonprofit
    organizations."[^217]

69. Commenters in our record also express the concern that subjecting
    tax-exempt nonprofit organizations to the national do-not-call
    requirements may sweep too broadly because it would prompt some
    consumers to accept blocking of non-commercial, charitable calls to
    which they might not otherwise object as an undesired effect of
    registering on the national database to stop unwanted commercial
    solicitation calls. Both the Eighth and the Ninth Circuits found
    that the provisions of the TCPA, which bans unsolicited commercial
    faxes but not non-commercial faxes, directly advance a substantial
    government interest,[^218] and we believe that the same distinction
    may be applied to the national do-not-call registry.[^219]

70. We find under the third prong of the *Central Hudson* test that our
    proposed regulations are not more extensive than necessary to
    protect residential privacy. The Supreme Court has made clear that
    with respect to this prong, "the differences between commercial
    speech and noncommercial speech are manifest."[^220] The Court held
    that:

    \[T\]he least restrictive means test has no role in the commercial
    speech context. What our decisions require, instead, is a fit
    between the legislature's ends and the means chosen to accomplish
    those ends, a fit that is not necessarily perfect, but reasonable;
    that represents not necessarily the single best disposition but one
    whose scope is in proportion to the interest served .... \[T\]he
    existence of numerous and obvious less-burdensome alternatives to
    the restriction on commercial speech is certainly a relevant
    consideration in determining whether the fit between the ends and
    means is reasonable.[^221]

    In *Florida Bar*, the Supreme Court found that a prohibition against
    lawyers using direct mail to solicit personal injury or wrongful
    death clients within 30 days of an accident was not more extensive
    than necessary to "protect... the privacy and tranquility of
    personal injury victims and their loved ones against intrusive,
    unsolicited contact by lawyers."[^222] Similarly, the Ninth Circuit
    has found that the TCPA's ban on prerecorded telemarketing calls
    constitutes a "reasonable fit" with the government's legitimate
    interest in protecting residential privacy.[^223]

71. Here, we find that our regulations meet the requirements of *Central
    Hudson's* third prong. Pursuant to our regulations, we adopt a
    single, national do-not-call database that we will enforce jointly
    with the FTC. Our rules mandate that common carriers providing
    telephone exchange service shall inform their subscribers of their
    right to register on the database either through a toll-free
    telephone call or over the Internet. Furthermore, telemarketers and
    sellers must gain access to telephone numbers in the national
    database and will be able to do so by means of a fully automated,
    secure website dedicated to providing information to these entities.
    In addition, sellers will be assessed an annual fee based upon the
    number of area codes they want to assess, with the maximum annual
    fee capped at \$7,250. Our rules also provide that the national
    database will be updated continuously, and telemarketers must update
    their lists quarterly. We find that our regulations are a reasonable
    fit between the ends and means and are not as restrictive as the
    bans upheld in the cases cited above. In *Florida Bar*, the Supreme
    Court upheld an *absolute* ban against lawyers using direct mail to
    solicit personal injury or wrongful death clients within 30 days of
    an accident. Similarly, the Ninth Circuit has upheld the TCPA's
    *absolute* ban on prerecorded telemarketing calls, and both the
    Eighth and Ninth Circuit have upheld the TCPA's *absolute* ban on
    unsolicited faxes. Here, our regulations do not absolutely ban
    telemarketing calls. Rather, they provide a mechanism by which
    individual consumers may choose not to receive telemarketing calls.
    We also note that there are many other ways available to market
    products to consumers, such as newspapers, television, radio
    advertising and direct mail.[^224] In addition, there simply are not
    "numerous and obvious less-burdensome alternatives" to the national
    do-not-call registry. The record clearly demonstrates widespread
    consumer dissatisfaction both with the effectiveness of the current
    company-specific rules that are currently in place[^225] and the
    effectiveness and expense of certain technological alternatives to
    reduce telephone solicitations.[^226] We also note that many of the
    "burdens" of the national do-not-call registry -- issues concerning
    its costs, accuracy, and privacy -- have been addressed by advances
    in computer technology and software over the last ten years.[^227]
    Thus, we find that our regulations implementing the national
    do-not-call registry are consistent with the First Amendment and the
    framework established in *Central Hudson*.

72. Furthermore, we reject the arguments that the *Central Hudson*
    framework is not appropriate and that strict scrutiny is required
    because the regulations implementing the national do-not-call list
    are content-based, due to the TCPA's exemptions for non-profit
    organizations and established business relationships.[^228] For
    support, commenters cite to *Discovery Network*, 507 U.S. 410, in
    which the Court struck down Cincinnati's ordinance which banned
    newsracks containing commercial publications but did not ban
    newsracks containing newspapers. The Court found that the regulation
    could neither be justified as a restriction on commercial speech
    under *Central Hudson*, nor could it be upheld as a valid time,
    place, or manner restriction on protected speech.[^229] The Court
    explained that "the government may impose reasonable restrictions on
    the time, place or manner of engaging in protected speech provided
    that they are adequately justified 'without reference to the content
    of the regulated speech'."[^230] In this case, the Court held that
    the City's ban which covered commercial publications but not
    newspapers was content-based.[^231] "It is the absence of a neutral
    justification for its selective ban on newsracks that prevents the
    city from defending its newsrack policy as content neutral."[^232]

73. Here, however, there was a neutral justification for Congress'
    decision to exclude non-profit organizations. As we noted *supra*,
    Congress found that "the two sources of consumer problems -- high
    volume of solicitations and unexpected solicitations -- are not
    present in solicitations by nonprofit organizations."[^233] Congress
    also made a similar finding with respect to solicitations based on
    established business relationships.[^234] Consumers are more likely
    to anticipate contacts from companies with whom they have an
    existing relationship and the volume of such calls will most likely
    be lower. Furthermore, as the Eighth Circuit noted when it
    distinguished the *Discovery Network* case in upholding the TCPA's
    ban on unsolicited faxes that applies to commercial speech but not
    to noncommercial speech, "the government may regulate one aspect of
    a problem without regulating all others."[^235] Thus, we believe it
    is clear that our do-not-call registry regulations may apply to
    commercial solicitations without applying to tax-exempt nonprofit
    solicitations, and that such regulations are not subject to a higher
    level of scrutiny. Indeed, we agree with the FTC that regulation of
    non-profit solicitations are subject to a higher level of scrutiny
    than solicitations of commercial speech,[^236] and "greater care
    must be given \[both\] to ensuring that the governmental interest is
    actually advanced by the regulatory remedy, and \[to\] tailoring the
    regulation narrowly so as to minimize its impact on First Amendment
    rights."[^237]

### Consistency with State and FTC Do-Not-Call Rules

74. We conclude that harmonization of the various state and federal
    do-not-call programs to the greatest extent possible will reduce the
    potential for consumer confusion and regulatory burdens on the
    telemarketing industry.[^238] An underlying concern expressed by
    many commenters in this proceeding is the potential for duplication
    of effort and/or inconsistency in the rules relating to the state
    and federal do-not-call programs. Congress has indicated a similar
    concern in requiring the Commission to "maximize consistency" with
    the FTC's rules.[^239] As discussed below, we find that the use of a
    single national database of do-not-call registrants will ultimately
    prove the most efficient and economical means for consumer
    registrations and access for compliance purposes by telemarketing
    entities and regulators.

75. The states have a long history of regulating telemarketing
    practices, and we believe that it is critical to combine the
    resources and expertise of the state and federal governments to
    ensure compliance with the national do-not-call rules. In fact, the
    TCPA specifically outlines a role for the states in this
    process.[^240] In an effort to reconcile the state and federal
    roles, we have conducted several meetings with the states and
    FTC.[^241] We expect such coordination to be ongoing in an effort to
    promote the continued effectiveness of the national do-not-call
    program. We clarify below the respective governmental roles in this
    process under the TCPA. As noted above, we intend to develop a
    Memorandum of Understanding with the FTC in the near future
    outlining the respective federal responsibilities under the national
    do-not-call rules. We note that a few commenters have expressed
    concern that the FTC and this Commission may adopt separate national
    do-not-call lists.[^242] We reiterate here that there will be only
    one national database.

76. *[Use of a Single Database.]{.underline}* We conclude that the use
    of a single national do-not-call database, administered by the
    vendor selected by the FTC, will ultimately prove the most efficient
    and economical means for consumer registrations and access by
    telemarketers and regulators. The establishment of a single database
    of registrants will allow consumers to register their requests not
    to be called in a single transaction with one governmental agency.
    In addition, telemarketers may access consumer registrations for
    purposes of compliance with the do-not-call rules through one visit
    to a national database. This will substantially alleviate the
    potential for consumer confusion and administrative burden on
    telemarketers that would exist if required to access multiple
    databases. In addition, we note that section 227(e)(2) prohibits
    states, in regulating telephone solicitations, from using any
    database, list, or list system that does not include the part of
    such single national database that relates to that state.[^243]
    Thus, pursuant to this requirement, any individual state do-not-call
    database must include all of the registrants on the national
    database for that state. We determine that the administrator of the
    national database shall make the numbers in the database available
    to the states as required by the TCPA.[^244]

77. We believe the most efficient way to create a single national
    database will be to download the existing state registrations into
    the national database. The FTC has indicated that the national
    database is designed to allow the states to download into the
    national registry -- at no cost -- the telephone numbers of
    consumers that have registered with their state do-not-call
    lists.[^245] As noted above, we believe that consumers,
    telemarketers, and regulators will benefit from the efficiencies
    derived from the creation of a single do-not-call database. We
    encourage states to work diligently toward this goal. We recognize
    that a reasonable transition period may be required to incorporate
    the state registrations in a few states into the national
    database.[^246] We therefore adopt an 18-month transition period for
    states to download their state lists into the national database.
    Having an 18-month transition period will allow states that do not
    have full-time legislatures to complete a legislative cycle and
    create laws that would authorize the use of a national list. In
    addition, this transition period is consistent with the amount of
    time that the FTC anticipates it would take to incorporate the
    states' lists into the national database. Although we do not preempt
    or require states to discontinue the use of their own databases at
    this time, once the national do-not-call registry goes into effect,
    states may not, in their "regulation of telephone solicitations,
    require the use of any database, list, or listing system that does
    not include the part of \[the national do-not-call registry\] that
    relates to \[each\] State."[^247] As noted above, we believe that
    there are significant advantages and efficiencies to be derived from
    the creation and use of a single database for all parties, including
    states, and we strongly encourage states to assist in this effort.
    The Commission intends to work diligently with the states and FTC in
    an effort to establish a single do-not-call database.

78. *[Interplay of State and Federal Do-Not-Call
    Regulations]{.underline}*. In the *2002 Notice*, we generally raised
    the issue of the interplay of state and federal do-not-call statutes
    and regulations.[^248] In response, several parties argued that
    state regulations must or should be preempted in whole,[^249] or at
    least in part,[^250] and several other parties argued that the
    Commission cannot or should not preempt.[^251] For example, several
    industry commenters contend that the TCPA provides the Commission
    with the authority to preempt state do-not-call regulations.[^252]
    These commenters contend that Congress intended the TCPA to occupy
    the field or, at the very least, intended to preempt state
    regulation of interstate telemarketing. Many state and consumer
    commenters note, however, that the TCPA contemplates a role for the
    states in regulating telemarketing and specifically prohibits
    preemption of state law in certain instances.[^253] States and
    consumers note that state do-not-call regulations have been a
    successful initiative in protecting consumer privacy rights. In
    addition, several commenters note the importance of federal and
    state cooperation in enforcing the national do-not-call
    regulations.[^254] The record also indicates that states have
    historically enforced their own state statutes within, as well as
    across state lines.[^255] The statute also contains a savings clause
    for state proceedings to enforce civil or criminal statutes, [^256]
    and at least one federal court has found that the TCPA does not
    preempt state regulation of autodialers that are not in actual
    conflict with the TCPA.[^257]

79. The main area of difference between the state and federal
    do-not-call programs relates to the exemptions created from the
    respective do-not-call regulations. Some state regulations are less
    restrictive by adopting exemptions that are not recognized under
    federal law. For example, some states have adopted exemptions for
    insurance agents, newspapers, or small businesses.[^258] In
    addition, a few states have enacted laws that are more restrictive
    than the federal regulations by not recognizing federal exemptions
    such as the established business relationship.[^259] Most states,
    however, exempt nonprofit organizations and companies with whom the
    consumer has an established business relationship in some manner
    consistent with federal regulations.[^260]

80. At the outset, we note that many states have not adopted any
    do-not-call rules. The national do-not-call rules will govern
    exclusively in these states for both intrastate and interstate
    telephone solicitations.[^261] Pursuant to section 227(f)(1), all
    states have the ability to enforce violations of the TCPA, including
    do-not-call violations, in federal district court.[^262] Thus, we
    conclude that there is no basis for conflict regarding the
    application of do-not-call rules in those states that have not
    adopted do-not-call regulations.

81. For those states that have adopted do-not-call regulations, we make
    the following determinations. First, we conclude that, by operation
    of general conflict preemption law, the federal rules constitute a
    floor, and therefore would supersede all less restrictive state
    do-not-call rules. [^263] We believe that any such rules would
    frustrate Congress' purposes and objectives in promulgating the
    TCPA. Specifically, application of less restrictive state exemptions
    directly conflicts with the federal objectives in protecting
    consumer privacy rights under the TCPA. Thus, telemarketers must
    comply with the federal do-not-call rules even if the state in which
    they are telemarketing has adopted an otherwise applicable
    exemption. Because the TCPA applies to both intrastate and
    interstate communications, the minimum requirements for compliance
    are therefore uniform throughout the nation. We believe this
    resolves any potential confusion for industry and consumers
    regarding the application of less restrictive state do-not-call
    rules.

82. Second, pursuant to section 227(e)(1), we recognize that states may
    adopt more restrictive do-not-call laws governing intrastate
    telemarketing.[^264] With limited exceptions, the TCPA specifically
    prohibits the preemption of any state law that imposes more
    restrictive intrastate requirements or regulations. Section
    227(e)(1) further limits the Commission's ability to preempt any
    state law that prohibits certain telemarketing activities, including
    the making of telephone solicitations. This provision is ambiguous,
    however, as to whether this prohibition applies both to intrastate
    and interstate calls,[^265] and is silent on the issue of whether
    state law that imposes more restrictive regulations on interstate
    telemarketing calls may be preempted. As set forth below, however,
    we caution that more restrictive state efforts to regulate
    interstate calling would almost certainly conflict with our rules.

83. We recognize that states traditionally have had jurisdiction over
    only intrastate calls, while the Commission has had jurisdiction
    over interstate calls.[^266] Here, Congress enacted section 227 and
    amended section 2(b) to give the Commission jurisdiction over both
    interstate and intrastate telemarketing calls. Congress did so based
    upon the concern that states lack jurisdiction over interstate
    calls.[^267] Although section 227(e) gives states authority to
    impose more restrictive intrastate regulations, we believe that it
    was the clear intent of Congress generally to promote a uniform
    regulatory scheme under which telemarketers would not be subject to
    multiple, conflicting regulations. [^268] We conclude that
    inconsistent interstate rules frustrate the federal objective of
    creating uniform national rules, to avoid burdensome compliance
    costs for telemarketers and potential consumer confusion. The record
    in this proceeding supports the finding that application of
    inconsistent rules for those that telemarket on a nationwide or
    multi-state basis creates a substantial compliance burden for those
    entities.[^269]

84. We therefore believe that any state regulation of interstate
    telemarketing calls that differs from our rules almost certainly
    would conflict with and frustrate the federal scheme and almost
    certainly would be preempted. We will consider any alleged conflicts
    between state and federal requirements and the need for preemption
    on a case-by-case basis. Accordingly, any party that believes a
    state law is inconsistent with section 227 or our rules may seek a
    declaratory ruling from the Commission. We reiterate the interest in
    uniformity -- as recognized by Congress -- and encourage states to
    avoid subjecting telemarketers to inconsistent rules.

85. NAAG contends that states have historically enforced telemarketing
    laws, including do-not-call rules, within, as well as across, state
    lines pursuant to "long-arm" statutes.[^270] According to NAAG,
    these state actions have been met with no successful challenges from
    telemarketers. We note that such "long-arm" statutes may be
    protected under section 227(f)(6) which provides that "nothing
    contained in this subsection shall be construed to prohibit an
    authorized State official from proceeding in State court on the
    basis of an alleged violation of any general civil or criminal
    statute of such state."[^271] Nothing that we do in this order
    prohibits states from enforcing state regulations that are
    consistent with the TCPA and the rules established under this order
    in state court.

#  Company specific do-not-call lists

## Background

86. In the *1992 TCPA Order*, the Commission adopted a "company-specific
    do-not-call" approach to protect residential telephone subscriber
    privacy by requiring telemarketers to place consumers on a
    do-not-call list if the consumer requests not to receive future
    solicitations.[^272] In the *2002 Notice*, the Commission sought
    comment on whether the company-specific approach has proven
    effective in providing consumers with a means to curb unwanted
    telephone solicitations.[^273] The Commission noted that under the
    company-specific approach, consumers must repeat their request not
    to be called on a case-by-case basis. Given the apparent increase in
    telemarketing calls, the Commission requested comment on whether
    this approach continues to balance adequately the interests of
    consumers with those of legitimate telemarketers. In particular, the
    Commission sought comment on whether changes in the marketplace now
    make this approach unreasonably burdensome for consumers, including
    elderly and disabled consumers.[^274] In addition, the Commission
    sought comment on whether the company-specific approach should be
    retained if the FTC, either acting alone or in conjunction with this
    Commission, adopts a national do-not-call list. Finally, the
    Commission sought comment on whether to consider any additional
    modifications to the company-specific list such as requiring
    companies to provide a toll-free number or website to register such
    requests.[^275]

87. In response to the *2002 Notice*, the Commission received a number
    of comments relating to the company-specific do-not-call rules. The
    majority of individual consumers addressing these issues contend
    that the current company-specific approach is inadequate to prevent
    unwanted telephone solicitations.[^276] In general, they argue that
    the company-specific approach is extremely burdensome to consumers
    who must repeat their request to every telemarketer that calls; such
    requests are often ignored or, in the case of abandoned calls, there
    is no opportunity to make such a request; and that consumers have no
    way to verify whether they have been placed on such lists.[^277] In
    addition, many consumers contend that telemarketers often fail to
    identify themselves or provide written copies of their do-not-call
    policies as required by the Commission's rules.[^278] Some consumers
    note that these limitations make it difficult to pursue any private
    right of action against telemarketers.[^279] Commenters also
    indicate that telemarketers frequently inform them that it will take
    as long as two months to process their do-not-call requests.[^280]
    An organization representing persons with disabilities contends that
    such consumers often cannot communicate requests not to be called to
    telemarketers.[^281]

88. Many industry commenters contend that the company-specific approach
    has been effective and that a national do-not-call list is therefore
    unnecessary. These commenters argue that the advantages of the
    company-specific approach, as identified by the Commission in 1992,
    remain valid today. Specifically, these commenters contend that
    companies already maintain such lists, the company-specific approach
    allows consumers to halt calls selectively, businesses gain useful
    information about consumer preferences, consumer confidentiality is
    protected, and the costs remain on the telemarketer. A number of
    industry commenters request that the retention period for those
    consumers requesting not to be called be reduced from ten
    years.[^282] In general, industry commenters oppose any requirement
    to establish a toll-free number or website for consumers to register
    and/or verify their do-not-call requests.[^283] These commenters
    contend that any such requirement would be costly and unnecessary
    given their compliance with the existing rules.

89. The FTC concluded that its company-specific do-not-call rules should
    be retained despite the adoption of a national registry.[^284]
    Although the FTC found that the company-specific list was often
    ineffective in protecting consumers, the FTC concluded it will work
    in a complementary fashion with a national do-not-call list to
    effectuate the appropriate balance between consumer privacy and
    enabling sellers to have access to customers. While the FTC has
    decided to exempt telemarketing calls on behalf of charitable
    organizations from the national registry, it concluded that calls by
    for-profit telemarketers on behalf of charitable organizations will
    now be subject to the company-specific rules.[^285]

## Discussion

### Efficacy of the Company-Specific Rules

90. We conclude that retention of the company-specific do-not-call rules
    will complement the national do-not-call registry by providing
    consumers with an additional option for managing telemarketing
    calls. We believe that providing consumers with the ability to
    tailor their requests not to be called, either on a case-by-case
    basis under the company do-not-call approach or more broadly under
    the national registry, will best balance individual privacy rights
    and legitimate telemarketing practices. As a result, those consumers
    that wish to prohibit telephone solicitations from only certain
    marketers will continue to have the option to do so. In addition,
    consumers registered on the national do-not-call registry will have
    the opportunity to request that they not be called by entities that
    would otherwise fall within the established business relationship
    exemption by using the option to be placed on the company-specific
    lists. This finding is consistent with that of the FTC.

91. As discussed above, we agree with those commenters that contend that
    the company-specific do-not-call approach has not proven ideal as a
    stand-alone method to protect consumer privacy. In particular, the
    increase in telemarketing calls over the last decade now places an
    extraordinary burden on consumers that do not wish to receive
    telephone solicitations. These consumers must respond on a
    case-by-case basis to request that they not be called. The record in
    this proceeding is replete with examples of consumers that receive
    numerous unwanted telemarketing calls each day.[^286] In addition,
    the widespread use of predictive dialers now results in many "dead
    air" or hang-up calls in which consumers do not even have the
    opportunity to make a do-not-call request. Such calls are
    particularly burdensome for the elderly and disabled consumers. We
    believe, however, that the measures adopted elsewhere in this order
    will enhance the effectiveness of the company-specific list. For
    example, the adoption of a national do-not-call registry alleviates
    the concerns of those consumers, including elderly and disabled
    consumers that may find a case-by-case do-not-call option
    particularly burdensome. In addition, restrictions on abandoned
    calls will reduce the number of "dead air" calls. Caller ID
    requirements will improve the ability of consumers to identify and
    enforce do-not-call rights against telemarketers. We also note that
    although many commenters question the effectiveness of the
    company-specific approach, there is little support in the record to
    eliminate those rules based on the adoption of the national
    do-not-call list.[^287] For the reasons stated above, we retain the
    option for consumers to request on a case-by-case basis whether they
    desire to receive telephone solicitations.

### Amendments to the Company-Specific Rules

92. We agree with several industry commenters that the retention period
    for records of those consumers requesting not to be called should be
    reduced from the current ten-year requirement to five years.[^288]
    As many commenters note, telephone numbers change hands over time
    and a shorter retention period will help ensure that only those
    consumers who have requested not to be called are retained on the
    list.[^289] Both telemarketers and consumers will benefit from a
    list that more accurately reflects those consumers who have
    requested not to be called. The FTC has concluded and several
    commenters in this proceeding agree that five years is a more
    reasonable period to retain consumer do-not-call requests.[^290] We
    believe a five-year retention period reasonably balances any
    administrative burden imposed on consumers in requesting not to be
    called with the interests of telemarketers in contacting consumers.
    As noted, a shorter retention period increases the accuracy of the
    database while the national do-not-call option mitigates the burden
    on those consumers who may believe more frequent company-specific
    do-not-call requests are overly burdensome. We believe any shorter
    retention period, as suggested by a few industry commenters, would
    unduly increase the burdens on consumers who would be forced to make
    more frequent renewals of their company-specific do-not-call
    requests without substantially improving the accuracy of the
    database. We therefore amend our rules to require that a do-not-call
    request be honored for five years from the time the request is
    made.[^291]

93. We decline at this time to require telemarketers to make available a
    toll-free number or website that would allow consumers to register
    company-specific do-not-call requests or verify that such a request
    was made with the marketer. We also decline to require telemarketers
    to provide a means of confirmation so that consumers may verify
    their requests have been processed at a later date. Telemarketers
    should, however, confirm that any such request will be recorded at
    the time the request is made by the consumer. In addition, consumers
    calling to register do-not-call requests in response to prerecorded
    messages should be processed in a timely manner without being placed
    on hold for unreasonable periods of time. Although we believe the
    additional measures discussed above would improve the ability of
    consumers, including consumers with disabilities, to register
    do-not-call requests, we agree with those commenters that contend
    that such requirements would be unduly costly to businesses.[^292]
    In particular, we are concerned with the costs imposed on small
    businesses. The Commission will, however, continue to monitor
    compliance with our company-specific do-not-call rules and take
    further action as necessary.

94. We conclude that telemarketers must honor a company-specific
    do-not-call request within a reasonable time of such request. We
    disagree, however, with commenters that suggest that periods of up
    to 90 days are a reasonable time required to process do-not-call
    requests.[^293] Although some administrative time may be necessary
    to process such requests, this process is now largely
    automated.[^294] As a result, such requests can often be honored
    within a few days or weeks. Taking into consideration both the large
    databases of such requests maintained by some entities and the
    limitations on certain small businesses, we conclude that a
    reasonable time to honor such requests must not exceed thirty days
    from the date such a request is made.[^295] We note that the
    Commission's rules require that entities must record
    company-specific do-not-call requests and place the subscriber's
    telephone number on the do-not-call list at the time the request is
    made.[^296] Therefore, telemarketers with the capability to honor
    such company-specific do-not-call requests in less than thirty days
    must do so.[^297] We believe this determination adequately balances
    the privacy interests of those consumers that have requested not to
    be called with the interests of the telemarketing industry.
    Consumers expect their requests not to be called to be honored in a
    timely manner, and thirty days should be the maximum administrative
    time necessary for telemarketers to process that request.

95. In addition, we decline to extend the company-specific do-not-call
    rules to entities that solicit contributions on behalf of tax-exempt
    nonprofit organizations. The TCPA excludes calls or messages by
    tax-exempt nonprofit organizations from the definition of telephone
    solicitation.[^298] The Commission has clarified that telemarketers
    who solicit on behalf of tax-exempt nonprofit organizations are not
    subject to the rules governing telephone solicitations.[^299] In the
    *2002 Notice*, the Commission declined to seek further comment on
    this issue.[^300] We acknowledge that this determination creates an
    inconsistency with the FTC's conclusion to extend its
    company-specific requirements to entities that solicit contributions
    on behalf of tax-exempt nonprofit organizations. The Commission,
    however, derives its authority to regulate telemarketing from the
    TCPA. As noted above, that statute excludes tax-exempt nonprofit
    organizations from the definition of telephone solicitation. We
    therefore decline to extend the company-specific requirements to
    entities that solicit on behalf of tax-exempt nonprofit
    organizations. We note that some tax-exempt nonprofit organizations
    have determined to honor voluntarily specific do-not-call requests.
    Other organizations may find it advantageous to follow this example.

96. Finally, to make clear our determination that a company must cease
    making telemarketing calls to a customer with whom it has an
    established business relationship when that customer makes a
    do-not-call request, we amend the company-specific do-not-call rules
    to apply to any call for telemarketing purposes.[^301] We also adopt
    a provision stating that a consumer's do-not-call request terminates
    the established business relationship for purposes of telemarketing
    calls even if the consumer continues to do business with the
    seller.[^302]

#  {#section .unnumbered}

# Interplay of sectionS 222 and 227

## Background

97. In the *2002 Notice*, the Commission sought comment generally on the
    interplay between sections 222 and 227.[^303] Section 222, entitled
    "Privacy of Consumer Information," obligates telecommunications
    carriers to protect the confidentiality of certain information and
    to protect the customer proprietary network information (CPNI)
    created by the customer-carrier relationship.[^304] Under the CPNI
    rules, a customer may allow her carrier to use her CPNI for
    marketing purposes. Depending on the uses the carrier intends to
    make of the customer's CPNI, the carrier must provide the customer
    notice of her CPNI rights and a means to effectuate her CPNI choice
    -- either "opt-in" or "opt-out" consent.[^305] The TCPA, on the
    other hand, governs a particular method -- telemarketing -- by which
    carriers (and other companies) market to their customers, and those
    customers' rights to choose whether or not they wish to receive such
    telemarketing calls. Accordingly, a consumer's decision to allow her
    carrier to use her CPNI reflects whether she is willing to have her
    carrier look at her personal usage information in order to tailor
    its marketing[^306] based on her usage patterns. A consumer's
    decision to enroll on the national do-not-call list reflects her
    decision about whether she wishes to receive telemarketing calls.

98. In the *2002 Notice*, the Commission tentatively concluded that a
    customer's request to be placed on a telecommunications carrier's
    do-not-call list limits that carrier's ability to market to that
    consumer via telephone.[^307] The Commission reasoned that
    "\[h\]onoring a do not call request under section 227 does not
    render a consent under section 222 a nullity, but instead merely
    limits the manner of contact (i.e., marketing over the telephone)
    consistent with the express request of the customer under section
    227."[^308] Numerous commenters generally supported the Commission's
    tentative determination that a customer's section 222 approval to
    use his or her CPNI should not override that customer's request to
    be placed on a do-not-call list.[^309] However, some commenters
    urged the Commission to draw distinctions based on: (1) the type of
    CPNI consent received (opt-in versus opt-out); and/or (2) national
    and state do-not-call lists versus company-specific do-not-call
    lists.

99. In particular, some commenters argued that a customer's CPNI
    approval should be deemed to override her request to be included on
    a national (or other general) do-not-call list, but should not
    override a request to be placed on a company-specific do-not-call
    list.[^310] Additionally, some commenters supported an approach
    where a customer's CPNI approval, if obtained through an opt-out
    mechanism, would not overcome the customer's request to be placed on
    a do-not-call list; however, opt-in CPNI approval would be deemed to
    overcome a customer's inclusion on a do-not-call list.[^311] A few
    commenters argued that any CPNI approval should be deemed to
    overcome a customer's inclusion on a do-not-call registry.[^312]
    Finally, one commenter suggested that the question of the interplay
    between a customer's opt-in consent to use her CPNI and request to
    be on a do-not-call list should be judged on a customer-by-customer
    basis, based on which request was made most recently.[^313]

## Discussion

100. We first note that the fact that a telecommunications carrier has
     current CPNI about a particular consumer indicates that the
     consumer is a customer of that carrier. In that situation, there
     exists an established business relationship between the customer
     and the carrier.[^314] The established business relationship is an
     exception to the national do-not-call registry.[^315] However,
     based on the evidence in the record and as supported by numerous
     commenters,[^316] we confirm our tentative conclusion that if a
     customer places her name on a carrier's do-not-call list, that
     request must be honored even though the customer may also have
     provided consent to use her CPNI under section 222.[^317] By doing
     so, we maximize the protections and choices available to consumers,
     while giving maximum effect to the language of both statutes. At
     the outset, the average consumer seems rather unlikely to
     appreciate the interrelationship of the Commission's CPNI and
     do-not-call rules. Allowing CPNI consent to trump a do-not-call
     request would, therefore, thwart most consumers' reasonable
     expectations about how a company-specific do-not-call list
     functions. Equally important, permitting a consumer's CPNI consent
     to supercede a consumer's express do-not call request might
     undermine the carrier's do-not-call database as the first source of
     information about the consumer's telemarketing preferences.

101. As discussed *infra*, because we retain the exemption for calls and
     messages to customers with whom the carrier has an established
     business relationship,[^318] the determination that a customer's
     CPNI approval does not trump her inclusion on a do-not-call list
     should have no impact on carriers' ability to communicate with
     their customers via telemarketing. [^319] Carriers will be able to
     contact customers with whom they have an established business
     relationship via the telephone, unless the customer has placed her
     name on the company's do-not-call list; whether the customer has
     consented to the use of her CPNI does not impact the carrier's
     ability to contact the customer via telemarketing.[^320]

102. We are not persuaded by the arguments of those commenters who urge
     the Commission to find that CPNI consent should trump a customer's
     request to be placed on a do-not-call list or similarly, that CPNI
     consent equates to permission to market "without
     restriction."[^321] We note that the Concerned Telephone Companies
     assert that CPNI consent equates to "consent to market *without
     restriction* based on \[customers'\] CPNI."[^322] The Commission
     finds no support for this assertion in any Commission order or
     statutory provision and, as we discuss herein, we specifically
     determine that CPNI approval does not equate to unlimited consent
     to market without restriction.

103. Similarly, a number of commenters argue that a customer's CPNI
     authorization "covers a number of forms of marketing, including
     telemarketing."[^323] However, such assertions ignore the plain
     fact that CPNI approval deals specifically with a carrier's use of
     a customer's personal information, and only indirectly pertains to
     or arguably "authorizes" marketing to the customer. Do-not-call
     lists, on the other hand, speak directly to customers' preferences
     regarding telemarketing contacts.[^324] Accordingly, we are
     convinced that a customer's do-not-call request demonstrates more
     directly her willingness (or lack thereof) to receive telemarketing
     calls, as opposed to any indirect inference that can be drawn from
     her CPNI approval.

104. Additionally, we disagree with those commenters who claim that
     allowing CPNI approval to trump a consumer's request to be on a
     national or state do-not-call list gives consumers greater
     flexibility.[^325] As stated above, a carrier's established
     business relationship with a customer exempts the carrier from
     honoring the customer's national do-not-call request. However, as
     stated above, CPNI consent is not deemed to trump a
     carrier-specific do-not-call list request. For similar reasons, we
     decline to make a distinction based on what type of CPNI consent
     (opt-in versus opt-out) received, as some commenters urge.[^326]

105. We do not allow carriers to combine the express written consent to
     allow them to contact customers on a do-not-call list with the CPNI
     notice in the manner that AT&T Wireless describes. However, we do
     allow carriers to combine in the same document CPNI notice with a
     request for express written consent to call customers on a
     do-not-call list, provided that such notices and opportunities for
     consumer consent are separate and distinct. That is, consumers must
     have distinct choices regarding both whether to allow use of their
     CPNI and whether to allow calls after registering a do-not-call
     request, but carriers may combine those requests for approval in
     the same notice document. Finally, we find a distinction based on
     the type of CPNI consent unnecessary here, as carriers can avail
     themselves of the established business relationship exception to
     contact their existing customers, irrespective of the type of CPNI
     consent obtained.

106. Similarly, we agree with those commenters[^327] who advise against
     using a time element to determine whether a customer's do-not-call
     request takes precedence over the customer's opt-in approval to use
     her CPNI,[^328] because adding a time element would unnecessarily
     complicate carrier compliance and allow carriers to game the
     system. In particular, the New York State Consumer Protection Board
     argues that "enrollment on a national do-not-call list should take
     precedence over the prior implied consent through the 'opt-out'
     procedure, but that the latest in time should prevail regarding
     'opt-in' consents."[^329] Because we determine that carriers can
     contact consumers with whom they have established business
     relationships, irrespective of those consumers' CPNI preferences,
     we find this proposed methodology unnecessary in determining
     whether a customer's CPNI consent should trump her do-not-call
     request. Additionally, we note that this proposal could be
     manipulated by carriers to overcome consumers' do-not-call
     preferences, by allowing carriers to send CPNI notices to customers
     that are intentionally timed to "overcome" previously expressed
     do-not-call requests.

107. Finally, although it was not directly raised in the *2002 Notice*,
     some commenters raised the issue of whether any type of do-not-call
     request revokes or limits a carrier's ability to use CPNI in a
     manner other than telemarketing.[^330] To the degree such
     affirmation is necessary, we agree with those commenters who
     maintain that a carrier's ability to use CPNI is not impacted by a
     customer's inclusion on a do-not-call list, except as noted above.

108. *[Constitutional Implications]{.underline}*. We disagree with those
     commenters who argue that our decision that a customer's CPNI
     approval does not trump her request to be on a do-not-call list
     violates the First Amendment rights of carriers and
     customers.[^331] Commenters cite no authority to support their
     arguments, and we do not believe the fact that customers have given
     their approval for carriers to use their CPNI implicates any
     additional First Amendment issues beyond those discussed in Section
     III.B.4., *supra*. Accordingly, we find our rules implementing the
     do-not-call registry are consistent with the First Amendment as
     applied to any consumer, including those who have previously given
     their approval to carriers to use their CPNI, pursuant to
     section 222. Furthermore, we believe that the exception which
     allows carriers to call consumers with whom they necessarily have
     an established business relationship renders commenters' arguments
     moot, as carriers necessarily have an established business
     relationship with any customer from whom they solicit CPNI
     approval.

#  Established Business Relationship 

## Background

109. The TCPA provides that the term "telephone solicitation" does not
     include a call or message to any person with whom the caller has an
     established business relationship (or EBR).[^332] The Commission
     determined during its initial TCPA rulemaking that, based on the
     record and legislative history, the TCPA also permits an
     "established business relationship" exemption from the restrictions
     on artificial or prerecorded message calls to residences.[^333] In
     the *2002 Notice*, we sought comment on the exemption generally,
     and more specifically, on the definition of "established business
     relationship," and whether any circumstances have developed that
     would justify revisiting these conclusions.[^334] The current rules
     define the term "established business relationship" to mean:

     a prior or existing relationship formed by a voluntary two-way
     communication between a person or entity and a residential
     subscriber with or without an exchange of consideration, on the
     basis of an inquiry, application, purchase or transaction by the
     residential subscriber regarding products or services offered by
     such person or entity, which relationship has not been previously
     terminated by either party.[^335]

110. Industry commenters overwhelmingly support retaining the exemption
     for calls to customers with whom companies have an established
     business relationship,[^336] and many urge the Commission not to
     narrow the scope of the exemption.[^337] Many industry members are
     also opposed to any time limitation on the exemption,[^338] or any
     modification of the rules that would interfere with a company's
     ability to market different services and products.[^339] Most
     consumer groups and state organizations support the exemption,
     provided the scope of the definition is narrowed.[^340] A few
     consumers advocated eliminating the exemption for prerecorded
     messages.[^341] Some consumer advocates disagreed with the
     assumption that consumers want to hear from companies with whom
     they have an existing relationship. One commenter stated that
     because a consumer might have established a relationship with a
     company does not necessarily mean that he or she wishes to receive
     telemarketing calls from that company.[^342] Many consumers' groups
     argued that the relationship should be ongoing,[^343] should
     require a completed transaction, such as a purchase or
     payment,[^344] and should be limited in duration.[^345] Of
     commenters who advocated a specific time limit on the EBR, there
     was less consensus about how long the relationship should last
     following a transaction between the seller and consumer.[^346]

111. The FTC decided to provide an exemption for "established business
     relationships" from the national "do-not-call" registry, as long as
     the consumer has not asked to be placed on the seller's
     company-specific "do-not-call" list. The FTC's amended Rule limits
     the "established business relationship" exemption to relationships
     formed by the consumer's purchase, rental or lease of goods or
     services from, or financial transaction with, the seller within
     eighteen (18) months of the telephone call or, in the case of
     inquiries or applications, to three (3) months from the inquiry or
     application.[^347] The FTC explained that this time frame is
     consistent with most state laws that include a time limit,[^348]
     and is more in keeping with consumer expectations than an
     open-ended exemption.[^349] The FTC also determined that affiliates
     will fall within the exemption only if the consumer would
     reasonably expect them to be included given the nature and type of
     goods or services offered and the identity of the affiliate.[^350]

## Discussion

112. We conclude that, based on the record, an established business
     relationship exemption is necessary to allow companies to
     communicate with their existing customers.[^351] Companies maintain
     that the exemption allows them to make new offers to existing
     customers, such as mortgage refinancing, insurance updates, and
     subscription renewals.[^352] They suggest that customers benefit
     from calls that inform them in a timely manner of new products,
     services and pricing plans. American Express contends that its
     financial advisors have a fiduciary duty to their customers,
     requiring them to contact customers with time-sensitive
     information.[^353] We are persuaded that eliminating this EBR
     exemption would possibly interfere with these types of business
     relationships. Moreover, the exemption focuses on the relationship
     between the sender of the message and the consumer, rather than on
     the content of the message. It appears that consumers have come to
     expect calls from companies with whom they have such a
     relationship, and that, under certain circumstances, they may be
     willing to accept these calls.[^354] Finally, we believe that while
     consumers may find prerecorded voice messages intrusive, such
     messages do not necessarily impose the same costs on the recipients
     as, for example, unsolicited facsimile messages.[^355] Therefore,
     we retain the exemption for established business relationship calls
     from the ban on prerecorded messages. Telemarketers that claim
     their prerecorded messages are delivered pursuant to an established
     business relationship must be prepared to provide clear and
     convincing evidence of the existence of such a relationship.

### Definition of Established Business Relationship 

113. We conclude that the Commission's current definition of
     "established business relationship" should be revised. We are
     convinced that consumers are confused and even frustrated more
     often when they receive calls from companies they have not
     contacted or done business with for many years. The legislative
     history suggests that it was Congress's view that the relationship
     giving a company the right to call becomes more tenuous over
     time.[^356] In addition, we believe that this is an area where
     consistency between the FCC rules and FTC rules is critical for
     both consumers and telemarketers. We conclude that, based on the
     range of suggested time periods that would meet the needs of
     industry, along with consumers' reasonable expectations of who may
     call them and when, eighteen (18) months strikes an appropriate
     balance between industry practices and consumers' privacy
     interests. Therefore, the Commission has modified the definition of
     established business relationship to mean:

     a prior or existing relationship formed by a voluntary two-way
     communication between a person or entity and a residential
     subscriber with or without an exchange of consideration, on the
     basis of the subscriber's purchase or transaction with the entity
     within the eighteen (18) months immediately preceding the date of
     the telephone call or on the basis of the subscriber's inquiry or
     application regarding products or services offered by the entity
     within the three (3) months immediately preceding the date of the
     call, which relationship has not been previously terminated by
     either party.[^357]

     The 18-month time period runs from the date of the last payment or
     transaction with the company, making it more likely that a consumer
     would expect a call from a company with which they have recently
     conducted business. The amended definition permits the
     relationship, once begun, to exist for eighteen (18) months in the
     case of purchases or transactions and three (3) months in the case
     of inquiries or applications, unless the consumer or the company
     "terminates" it. We emphasize here that the termination of an
     established business relationship is significant only in the
     context of solicitation calls.[^358] Therefore, consistent with the
     language in the definition, a company's prior relationship with a
     consumer entitles the company to call that consumer for
     eighteen (18) months from the date of the last payment or financial
     transaction, even if the company does not currently provide service
     to that customer.[^359] For example, a consumer who once had
     telephone service with a particular carrier or a subscription with
     a particular newspaper could expect to receive a call from those
     entities in an effort to "winback" or "renew" that consumer's
     business within eighteen (18) months. In the context of
     telemarketing calls, a consumer's "prior or existing relationship"
     continues for eighteen (18) months (3 months in the case of
     inquiries and applications) or until the customer asks to be placed
     on that company's do-not-call list.[^360]

114. *[Inquiries]{.underline}*. The Commission asked whether we should
     clarify the type of consumer *inquiry* that would create an
     "established business relationship" for purposes of the exemption.
     Some consumers and consumer groups maintain that a consumer who
     merely inquires about a product should not be subjected to
     subsequent telemarketing calls.[^361] Industry commenters, on the
     other hand, believe that companies should be permitted to call
     consumers who have made inquiries about their products and
     services, and that consumers have come to expect such calls.[^362]
     The legislative history suggests that Congress contemplated that an
     inquiry by a consumer could be the basis of an established business
     relationship,[^363] but that such an inquiry should occur within a
     reasonable period of time.[^364] While we do not believe any
     communication would amount to an established business relationship
     for purposes of telemarketing calls, we do not think the definition
     should be narrowed to only include situations where a purchase or
     transaction is completed.[^365] The nature of any inquiry must,
     however, be such to create an expectation on the part of the
     consumer that a particular company will call them. As confirmed by
     several industry commenters, an inquiry regarding a business's
     hours or location would not establish the necessary relationship as
     defined in Commission rules.[^366] By making an inquiry or
     submitting an application regarding a company's products or
     services, a consumer might reasonably expect a prompt follow-up
     telephone call regarding the initial inquiry or application, not
     one after an extended period of time. Consistent with the FTC's
     conclusion, the Commission believes three months should be a
     reasonable time in which to respond to a consumer's inquiry or
     application.[^367] Thus, we amend the definition of "established
     business relationship" to permit telemarketing calls within
     three (3) months of an inquiry or application regarding a product
     or service offered by the company.

115. We emphasize here that the definition of "established business
     relationship" requires a voluntary two-way communication between a
     person or entity and a residential subscriber regarding a purchase
     or transaction made within eighteen (18) months of the date of the
     telemarketing call or regarding an inquiry or application within
     three (3) months of the date of the call. Any seller or
     telemarketer using the EBR as the basis for a telemarketing call
     must be able to demonstrate, with clear and convincing evidence,
     that they have an EBR with the called party.

116. *[Different Products and Services]{.underline}*. The Commission
     also invited comment on whether to consider modifying the
     definition of "established business relationship" so that a company
     that has a relationship with a customer based on one type of
     product or service may not call consumers on the do-not-call list
     to advertise a different service or product.[^368] Industry
     commenters believe an EBR with a consumer should not be restricted
     by product or service, but rather, should permit them to offer the
     full range of their services and products.[^369] Consumer advocates
     who commented on the issue maintain that a company that has a
     relationship based on one service or product should not be allowed
     to use that relationship to market a different service or
     product.[^370] The Commission agrees with the majority of industry
     commenters that the EBR should not be limited by product or
     service. In today's market, many companies offer a wide variety of
     services and products. Restricting the EBR by product or service
     could interfere with companies' abilities to market them
     efficiently. Many telecommunications and cable companies, for
     example, market products and services in packages.[^371] As long as
     the company identifies itself adequately,[^372] a consumer should
     not be surprised to receive a telemarketing call from that company,
     regardless of the product being offered. If the consumer does not
     want any further calls from that company, he or she may request
     placement on its do-not-call list.

117. *[Affiliated Entities]{.underline}*. In the *1992 TCPA Order*, the
     Commission found that a consumer's established business
     relationship with one company may also extend to the company's
     affiliates and subsidiaries.[^373] Consumer advocates maintain that
     the EBR exemption should not automatically extend to affiliates of
     the company with whom a consumer has a business relationship.[^374]
     Industry members argue that it should apply to affiliates that
     provide reasonably-related products or services.[^375] The
     Commission finds that, consistent with the FTC's amended Rule,
     affiliates fall within the established business relationship
     exemption only if the consumer would reasonably expect them to be
     included given the nature and type of goods or services offered and
     the identity of the affiliate.[^376] This definition offers
     flexibility to companies whose subsidiaries or affiliates also make
     telephone solicitations, but it is based on consumers' reasonable
     expectations of which companies will call them.[^377] As the ATA
     and other commenters explain, consumers often welcome calls from
     businesses they know. A call from a company with which a consumer
     has not formed a business relationship directly, or does not
     recognize by name, would likely be a surprise and possibly an
     annoyance. This determination is also consistent with current
     Commission rules on the applicability of do-not-call requests made
     to affiliated persons or entities. Under those rules, a residential
     subscriber's do-not-call request 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
     advertised.[^378]

118. *[Other Issues]{.underline}*. The Commission clarifies that the
     established business relationship exemption does not permit
     companies to make calls based on referrals from existing customers
     and clients,[^379] as the person referred presumably does not have
     the required business relationship with the company that received
     the referral. An EBR is similarly not formed when a wireless
     subscriber happens to use another carrier's services through
     roaming.[^380] In such a situation, the consumer has not made the
     necessary purchase or inquiry that would constitute an EBR or
     provided prior express consent to receive telemarketing calls from
     that company. We recognize that companies often hire third party
     telemarketers to market their services and products. In general,
     those telemarketers may rely on the seller's EBR to call an
     individual consumer to market the seller's services and
     products.[^381] However, we disagree with Nextel that a consumer's
     EBR with a third party telemarketer, including a retail store or
     independent dealer, extends to a seller simply because the seller
     has a contractual relationship with that telemarketer. The seller
     would only be entitled to call a consumer under the EBR exemption
     based on its own EBR with a consumer.[^382] We also disagree with
     WorldCom that the EBR should extend to marketing partners for
     purposes of telemarketing joint offers, to the extent the "partner"
     companies have no EBR with the consumer.[^383]

### Telecommunications Common Carriers

119. In the *2002 Notice*, we asked what effect the established business
     relationship exemption might have on the telecommunications
     industry, if a national do-not-call list is established. According
     to WorldCom, telephone solicitations are the primary mechanism for,
     and the means by which consumers are accustomed to, purchasing
     competitive telecommunications services.[^384] WorldCom argues that
     with the advent of competition in the formerly monopolized local
     telephone markets, and the entry of the Regional Bell Operating
     Companies into the long distance market, carriers need to be able
     to market effectively their new services.[^385] WorldCom argues
     that a national do-not-call list that exempts calls to persons with
     whom a company has established business relationships will favor
     incumbent providers.[^386] According to WorldCom, incumbent local
     exchange carriers maintain most of the local customer base, and
     therefore would be able to telemarket new services to all those
     customers, regardless of whether they were on the national
     do-not-call registry, because of the established business
     relationship exemption. New competitors, on the other hand, would
     be restricted from calling those same consumers.

120. One approach would be to narrow the "established business
     relationship" for telecommunications carriers, so that a carrier
     doing business with customers based on one type of service may not
     call those customers registered with the national do-not-call list
     to advertise a different service.[^387] We find, however, that the
     record does not support such an approach in the context of
     telemarketing calls. Along with the majority of industry commenters
     in this proceeding, WorldCom maintains that companies "must have
     flexibility in communicating with their customers not only about
     their current services, but also to discuss available alternative
     services or products. . . ."[^388] Limiting a common carrier's
     "established business relationship" by product or service might
     harm competitors' efforts to market new goods or services to
     existing customers, and would not be in the public interest.

121. WorldCom proposes instead that the Commission revise the definition
     of established business relationship so that all providers of a
     telecommunications service---incumbents and new entrants
     alike---are deemed to have an established business relationship
     with all consumers.[^389] Alternatively, WorldCom suggests that the
     definition of an established business relationship be revised to
     exclude a company whose relationship with a consumer is based
     solely on a service for which the company has been a dominant or
     monopoly provider of the service, until such time as competitors
     for that service have sufficiently penetrated the market.[^390]

122. Although we take seriously WorldCom's concerns about the potential
     effects of a national do-not-call list on competition in the
     telecommunications marketplace, we decline to expand the definition
     of "established business relationship" so that common carriers are
     deemed to have relationships with all consumers for purposes of
     making telemarketing calls. Broadening the scope of the established
     business relationship in such a way would be inconsistent with
     Congress's mandate "to protect residential telephone subscribers'
     privacy rights to avoid receiving telephone solicitations to which
     they object."[^391] To permit common carriers to call consumers
     with whom they have no existing relationships and who have
     expressed a desire not to be called by registering with the
     national do-not-call list, would likely confuse consumers and
     interfere with their ability to manage and monitor the
     telemarketing calls they receive.[^392]

123. We further note that with the establishment of a national
     do-not-call registry, carriers will still be permitted to contact
     competitors' customers who have not placed their numbers on the
     national list. In addition, carriers will be able to call their
     prior and existing customers for 18 months to market new products
     and services, such as long distance, local, or DSL services, as
     long as those customers have not placed themselves on that
     carrier's company-specific do-not-call list.[^393] For the
     remaining consumers with whom common carriers have no established
     business relationship and who are registered with the do-not-call
     list, carriers may market to them using different advertising
     methods, such as direct mail. Therefore, we find that treating
     common carriers like other entities that use the telephone to
     advertise, best furthers the goals of the TCPA to protect consumer
     privacy interests and to avoid interfering with existing business
     relationships.

### Interplay Between Established Business Relationship and Do-Not-Call Request

124. In the *2002 Notice*, we sought comment on the effect of a
     do-not-call request on an established business relationship.[^394]
     We noted the legislative history on this issue, which suggests that
     despite an established business relationship, a company that has
     been asked by a consumer not to call again, must honor that request
     and avoid further calls to that consumer.[^395] Consumer advocates
     who discussed the interplay between the established business
     relationship and a do-not-call request maintained that a
     do-not-call request should "trump" an established business
     relationship,[^396] and that consumers should not be required to
     terminate business relationships in order to stop unwanted
     telemarketing calls.[^397] The majority of industry commenters also
     supported the notion that companies should honor requests from
     individual consumers not to be called, regardless of whether there
     is a business relationship.[^398] As discussed earlier, companies
     will be permitted to call consumers with whom they have an
     established business relationship for a period of 18 months from
     the last payment or transaction, even when those consumers are
     registered on the national do-not-call list, as long as a consumer
     has not asked to be placed on the company's do-not-call list. Once
     the consumer asks to be placed on the company-specific do-not-call
     list, the company may not call the consumer again regardless of
     whether the consumer continues to do business with the company.
     This will apply to all services and products offered by that
     company.[^399] If the consumer continues to do business with the
     telemarketer after asking not to be called (by, for example,
     continuing to hold a credit card, subscribing to a newspaper, or
     making a subsequent purchase), the consumer cannot be deemed to
     have waived his or her company-specific do-not-call request.[^400]
     As described above, we amend the company-specific do-not-call rules
     to apply to "any call for telemarketing purposes" to make clear
     that a company must cease making telemarketing calls to any
     customer who has made a do-not-call request, regardless of whether
     they have an EBR with that customer.[^401] We also adopt a
     provision stating that a consumer's do-not-call request terminates
     the EBR for purposes of telemarketing calls even if the consumer
     continues to do business with the seller.[^402]

# Tax-Exempt Nonprofit Organization Exemption

## Background

125. The term "telephone solicitation," as defined in the TCPA, does not
     include a call or message "by a tax-exempt nonprofit
     organization."[^403] The Commission concluded, as part of its *1995
     Reconsideration Order*, that calls placed by an agent of the
     telemarketer are treated as if the telemarketer itself placed the
     call.[^404] Therefore, calls made by independent telemarketers on
     behalf of tax-exempt nonprofits also are not subject to the rules
     governing telephone solicitations.[^405]

126. Over the years, the Commission has received inquiries about calls
     made jointly by nonprofit and for-profit organizations. In the
     *2002 Notice*, we described a scenario in which a tax-exempt
     nonprofit organization calls consumers to sell another company's
     magazines and receives a portion of the proceeds. We then asked
     whether such calls should be exempt from the restrictions on
     telephone solicitations and prerecorded messages as calls made by a
     tax-exempt nonprofit organization.[^406]

127. Tax-exempt nonprofit organizations explained that they rely on the
     expertise and operational efficiencies of professional fundraisers
     to conduct their fundraising campaigns. Therefore, they support the
     continued exemption for professional fundraisers that call on
     behalf of nonprofit organizations.[^407] Many commenters, while
     supportive of the exemption for calls by nonprofits, were concerned
     that it frequently has been used to veil what is in reality a
     commercial venture.[^408] Some commenters emphasized that "the TCPA
     nonprofit exemption should not function as an artifice for an
     inherently commercial enterprise."[^409] NAAG, for example,
     maintained that calls that serve to benefit for-profit companies
     (in whole or in part) are not calls by or on behalf of nonprofits
     and should remain subject to the TCPA's restrictions.[^410] The
     Association of Fundraising Professionals similarly asserted that
     this type of nonprofit/for-profit initiative does not represent a
     "pure" charitable appeal; that the primary purpose of such a
     transaction is receipt of a product or service by the consumer, not
     the charitable transfer of funds.[^411] One commenter suggested
     that the test for whether a call is made on behalf of a nonprofit
     organization should be whether payment is made to the tax-exempt
     nonprofit organization.[^412] DialAmerica, on the other hand, urged
     the Commission to confirm that the exemption also applies when
     for-profits call, conduct a commercial transaction, and donate a
     percentage of the proceeds to nonprofit charitable
     organizations.[^413]

## Discussion

128. We reaffirm the determination that calls made by a for-profit
     telemarketer hired to solicit the purchase of goods or services or
     donations on behalf of a tax-exempt nonprofit organization are
     exempted from the rules on telephone solicitation.[^414] In
     crafting the TCPA, Congress sought primarily to protect telephone
     subscribers from unrestricted commercial telemarketing activities,
     finding that most unwanted telephone solicitations are commercial
     in nature.[^415] In light of the record before us, the Commission
     believes that there has been no change in circumstances that
     warrant distinguishing those calls made by a professional
     telemarketer on behalf of a tax-exempt nonprofit organization from
     those made by the tax-exempt nonprofit itself. The Commission
     recognizes that charitable and other nonprofit entities with
     limited expertise, resources and infrastructure, might find it
     advantageous to contract out its fundraising efforts.[^416]
     Consistent with section 227, a tax-exempt nonprofit organization
     that conducts its own fundraising campaign or hires a professional
     fundraiser to do it, will not be subject to the restrictions on
     telephone solicitations.[^417] If, however, a for-profit
     organization is delivering its own commercial message as part of a
     telemarketing campaign (*i.e.,* encouraging the purchase or rental
     of, or investment in, property, goods, or services),[^418] even if
     accompanied by a donation to a charitable organization or referral
     to a tax-exempt nonprofit organization,[^419] that call is not *by
     or on behalf of a tax-exempt nonprofit organization*.[^420] Such
     calls, whether made by a live telemarketer or using a prerecorded
     message, would not be entitled to exempt treatment under the TCPA.
     We emphasize here, as we did in the *2002 Notice*, that the statute
     and our rules clearly apply already to messages that are
     predominantly commercial in nature, and that we will not hesitate
     to consider enforcement action should the provider of an otherwise
     commercial message seek to immunize itself by simply inserting
     purportedly "non-commercial" content into that message. A call to
     sell debt consolidation services, for example, is a commercial call
     regardless of whether the consumer is also referred to a tax-exempt
     nonprofit organization for counseling services.[^421] Similarly, a
     seller that calls to advertise a product and states that a portion
     of the proceeds will go to a charitable cause or to help find
     missing children must still comply with the TCPA rules on
     commercial calls.

# automated telephone dialing equipment 

## Background 

129. The TCPA and Commission's rules prohibit calls using an automatic
     telephone dialing system (or "autodialer") to emergency telephone
     lines, to the telephone line of a guest room of a health care
     facility, to a paging service, cellular telephone service,
     specialized mobile radio service, or other radio common carrier
     service, or any service for which the called party is charged for
     the call.[^422] Section 227 defines automatic telephone dialing
     system as "equipment which has the capacity (A) to store or produce
     telephone numbers to be called, using a random or sequential number
     generator; and (B) to dial such numbers."[^423] In the *2002
     Notice*, the Commission explained that more sophisticated dialing
     systems, such as predictive dialers and answering machine detection
     software, are now widely used by telemarketers to increase
     productivity. We invited comment on these and other technologies
     and asked whether they fall within the restrictions on "automatic
     telephone dialing systems."[^424]

130. Most industry members that commented on the issue of autodialed
     calls argue that predictive dialers do not fall within the
     statutory definition of "automatic telephone dialing system,"
     primarily because, they contend, predictive dialers do not dial
     numbers "randomly or sequentially."[^425] Rather, they state that
     predictive dialers store pre-programmed numbers or receive numbers
     from a computer database and then dial those numbers in a manner
     that maximizes efficiencies for call centers.[^426] Most consumers
     and consumer groups maintain that predictive dialers are
     autodialers; that to distinguish technologies on the basis of
     whether they dial randomly or use a database of numbers would
     create a distinction without a difference.[^427] They argue that
     for the recipient of the call, there is no difference whether the
     number is dialed at random or from a database of numbers.[^428] A
     few commenters contend that even when a database of numbers is
     used, the numbers can be dialed in sequence.[^429] In addition, LCC
     urges the Commission to clarify that modems used for
     non-telemarketing purposes are excluded from the definition of
     "automatic telephone dialing system."[^430]

## Discussion

### Predictive Dialers

131. *[Automated Telephone Dialing Equipment]{.underline}*. The record
     demonstrates that a predictive dialer is equipment that dials
     numbers and, when certain computer software is attached, also
     assists telemarketers in predicting when a sales agent will be
     available to take calls.[^431] The hardware, when paired with
     certain software, has the capacity to store or produce numbers and
     dial those numbers at random, in sequential order, or from a
     database of numbers.[^432] As commenters point out, in most cases,
     telemarketers program the numbers to be called into the equipment,
     and the dialer calls them at a rate to ensure that when a consumer
     answers the phone, a sales person is available to take the
     call.[^433] The principal feature of predictive dialing software is
     a timing function, not number storage or generation. Household
     Financial Services states that these machines are not conceptually
     different from dialing machines without the predictive computer
     program attached.[^434]

132. The TCPA defines an "automatic telephone dialing system" as
     "equipment which has the capacity (A) to store or produce telephone
     numbers to be called, using a random or sequential number
     generator; and (B) to dial such numbers."[^435] The statutory
     definition contemplates autodialing equipment that either stores or
     produces numbers. It also provides that, in order to be considered
     an "automatic telephone dialing system," the equipment need only
     have the "*capacity* to store or produce telephone numbers
     (emphasis added). . .." It is clear from the statutory language and
     the legislative history that Congress anticipated that the FCC,
     under its TCPA rulemaking authority, might need to consider changes
     in technologies.[^436] In the past, telemarketers may have used
     dialing equipment to create and dial 10-digit telephone numbers
     arbitrarily. As one commenter points out, the evolution of the
     teleservices industry has progressed to the point where using lists
     of numbers is far more cost effective.[^437] The basic function of
     such equipment, however, has not changed---the *capacity* to dial
     numbers without human intervention. We fully expect automated
     dialing technology to continue to develop.

133. The legislative history also suggests that through the TCPA,
     Congress was attempting to alleviate a particular problem---an
     increasing number of automated and prerecorded calls to certain
     categories of numbers.[^438] The TCPA does not ban the use of
     technologies to dial telephone numbers. It merely prohibits such
     technologies from dialing emergency numbers, health care
     facilities, telephone numbers assigned to wireless services, and
     any other numbers for which the consumer is charged for the
     call.[^439] Such practices were determined to threaten public
     safety and inappropriately shift marketing costs from sellers to
     consumers.[^440] Coupled with the fact that autodialers can dial
     thousands of numbers in a short period of time, calls to these
     specified categories of numbers are particularly troublesome.
     Therefore, to exclude from these restrictions equipment that use
     predictive dialing software from the definition of "automated
     telephone dialing equipment" simply because it relies on a given
     set of numbers would lead to an unintended result. Calls to
     emergency numbers, health care facilities, and wireless numbers
     would be permissible when the dialing equipment is paired with
     predictive dialing software and a database of numbers, but
     prohibited when the equipment operates independently of such lists
     and software packages. We believe the purpose of the requirement
     that equipment have the "capacity to store or produce telephone
     numbers to be called" is to ensure that the prohibition on
     autodialed calls not be circumvented.[^441] Therefore, the
     Commission finds that a predictive dialer falls within the meaning
     and statutory definition of "automatic telephone dialing equipment"
     and the intent of Congress.[^442]

134. *[Predictive Dialers as Customer Premises Equipment]{.underline}*.
     A few commenters maintain that predictive dialers are Customer
     Premises Equipment (CPE)[^443] over which the Communications Act
     gives the FCC exclusive jurisdiction.[^444] The ATA and DMA urge
     the Commission to assert exclusive authority over CPE and, in the
     process, preempt state laws governing predictive dialers. They
     contend that, in the absence of a single national policy on
     predictive dialer use, telemarketers will be subject to the
     possibility of conflicting state standards.[^445] In the past, CPE
     was regulated as a common carrier service based on the Commission's
     jurisdiction and statutory responsibilities over *carrier-provided*
     equipment.[^446] The Commission long ago deregulated CPE, finding
     that the CPE market was becoming increasingly competitive, and that
     in order to increase further the options that consumers had in
     obtaining equipment, it would require common carriers to separate
     the provision of CPE from the provision of telecommunications
     services.[^447] As part of its review of CPE regulations, the
     Commission pointed out that it had never regarded the provision of
     terminal equipment in isolation as an activity subject to Title II
     regulation.[^448] While the Commission recognized that such
     equipment is within the FCC's authority over wire and radio
     communications,[^449] it found that the equipment, by itself, is
     not a "communication" service, and therefore there was no mandate
     that it be regulated.[^450] None of the commenters who argue this
     point describe a change in circumstances that would warrant
     reevaluating the Commission's earlier determination and risk
     disturbing the competitive balance the Commission deemed
     appropriate in 1980.[^451] In addition, it is not the equipment
     itself that states are considering regulating; it is the use of
     such equipment that has caught the attention of some state
     legislatures.[^452] We believe it is preferable at this time to
     regulate the use of predictive dialers under the TCPA's specific
     authority to regulate telemarketing practices. Therefore, we
     decline to preempt state laws governing the use of predictive
     dialers and abandoned calls or to regulate predictive dialers as
     CPE.

### "War Dialing"

135. In the *2002 Notice*, the Commission sought comment on the practice
     of using autodialers to dial large blocks of telephone numbers in
     order to identify lines that belong to telephone facsimile
     machines. Of those commenters who weighed in on "war
     dialing,"[^453] there was unanimous support for a ban on the
     practice.[^454] Commenters explained that ringing a telephone for
     the purpose of determining whether the number is associated with a
     fax or voice line is an invasion of consumers' privacy interests
     and should be prohibited. Moreover, they asserted there is no free
     speech issue when the caller has no intention of speaking with the
     called party.[^455] The TCPA prohibits the transmission of
     unsolicited facsimile advertisements absent the consent of the
     recipient. The Commission agrees that because the purpose of "war
     dialing" is to identify those numbers associated with facsimile
     machines, the practice serves few, if any, legitimate business
     interests and is an intrusive invasion of consumers' privacy.
     Therefore, the Commission today adopts a rule that prohibits the
     practice of using any technology to dial any telephone number for
     the purpose of determining whether the line is a fax or voice
     line.[^456]

#  artificial or prerecorded voice messages

## Background

136. As described above, the TCPA and Commission rules prohibit
     telephone calls to residences using an artificial or prerecorded
     voice to deliver a message without the prior express consent of the
     called party, unless the call is for emergency purposes or is
     specifically exempted.[^457] The TCPA permits the Commission to
     exempt from this provision calls which are non-commercial and
     commercial calls which do not adversely affect the privacy rights
     of the called party and which do not transmit an unsolicited
     advertisement.[^458] In its 1992 proceeding, the Commission
     determined to exempt calls that are non-commercial and commercial
     calls that do not contain an unsolicited advertisement, noting that
     messages that do not seek to sell a product or service do not tread
     heavily upon the consumer interests implicated by section
     227.[^459] The Commission also concluded that a solicitation to
     someone with whom a prior business relationship exists does not
     adversely affect subscriber privacy interests, and adopted an
     exemption for prerecorded messages delivered to consumers with whom
     a company has an established business relationship.[^460] Finally,
     the Commission concluded that tax-exempt nonprofit organizations
     should be exempt from the prohibition on prerecorded message calls
     to residences as non-commercial calls.[^461] In the *2002 Notice,*
     the Commission sought comment on artificial or prerecorded messages
     containing offers for free goods or services and messages
     purporting to provide "information only" about products or
     services. We also invited comment on calls seeking people to help
     sell or market a business' products. We asked whether such messages
     should be viewed as advertisements under the rules.

137. The record reveals that the practice of sending prerecorded
     messages to residential telephone lines is widespread. [^462]
     Consumers are frustrated by such messages, which often fill up the
     tapes of their answering machines,[^463] fail to identify
     adequately the company delivering the message, and provide no
     option for requesting that the company not call again.[^464] When
     consumers attempt to place their numbers on a do-not-call list in
     response to a prerecorded message, they often reach busy
     signals,[^465] additional prerecorded messages, or are told that
     do-not-call requests are not processed at that number.[^466]
     Consumers also indicate that they have been told by telemarketers
     that "free" offers and informational messages are not subject to
     the prerecorded message prohibition, as they do not ask the called
     party to purchase any product or service.[^467]

138. The majority of consumers and consumer groups contend that messages
     offering "free" goods or services or those that claim to provide
     information-only are designed with the ultimate goal of soliciting
     consumers to buy products and services and are therefore prohibited
     without the prior express consent of the called party.[^468] These
     messages, they argue, are intended to generate future sales, and
     the fact that no sale occurs during the call is irrelevant to their
     intrusiveness.[^469] Industry members provided very few examples of
     prerecorded messages used to deliver advertisements. Instead, they
     described the benefits of communicating with existing customers
     through prerecorded messages. Commenters specifically cautioned the
     Commission against restricting "dual purpose" calls which, they
     contend, provide both a convenient customer service and cost
     effective marketing tool.[^470] One company explained that it uses
     prerecorded messages to notify its customers about delinquent bills
     or changes in service, and to simultaneously inform them of
     alternative services and products.[^471] Another commenter
     described messages sent by a mortgage broker alerting homeowners to
     lower interest rates and offering refinancing options.[^472]

## Discussion

### Offers for Free Goods or Services; Information-Only Messages 

139. Congress found that "residential telephone subscribers consider
     automated or prerecorded telephone calls . . . to be a nuisance and
     an invasion of privacy."[^473] It also found that "\[b\]anning such
     automated or prerecorded telephone calls to the home, except when
     the receiving party consents to receiving the call or when such
     calls are necessary in an emergency situation affecting the health
     and safety of the consumer, is the only effective means of
     protecting telephone consumers from this nuisance and privacy
     invasion."[^474] Congress determined that such prerecorded messages
     cause greater harm to consumers' privacy than telephone
     solicitations by live telemarketers. The record reveals that
     consumers feel powerless to stop prerecorded messages largely
     because they are often delivered to answering machines and because
     they do not always provide a means to request placement on a
     do-not-call list.

140. Additionally, the term "unsolicited advertisement" means "any
     material advertising the commercial availability or quality of any
     property, goods, or services which is transmitted to any person
     without that person's prior express invitation or
     permission."[^475] The TCPA's definition does not require a sale to
     be made during the call in order for the message to be considered
     an advertisement. Offers for free goods or services that are part
     of an overall marketing campaign to sell property, goods, or
     services constitute "advertising the commercial availability or
     quality of any property, goods, or services."[^476] Therefore, the
     Commission finds that prerecorded messages containing free offers
     and information about goods and services that are commercially
     available are prohibited to residential telephone subscribers, if
     not otherwise exempted.[^477]

141. In addition, we amend the prerecorded message rule at 47 C.F.R. §
     64.1200(c)(2) so that the prohibition expressly applies to messages
     that constitute "telephone solicitations," as well as to those that
     include or introduce an "unsolicited advertisement."[^478] We agree
     with those commenters who suggest that application of the
     prerecorded message rule should turn, not on the caller's
     characterization of the call, but on the purpose of the
     message.[^479] Amending the rule to apply to messages that
     constitute "telephone solicitations," is consistent with the goals
     of the TCPA[^480] and addresses the concerns raised by commenters
     about purported "free offers."[^481] In addition, we believe the
     amended rule will afford consumers a greater measure of protection
     from unlawful prerecorded messages and better inform the business
     community about the general prohibition on such messages.[^482]

142. The so-called "dual purpose" calls described in the record---calls
     from mortgage brokers to their clients notifying them of lower
     interest rates, calls from phone companies to customers regarding
     new calling plans, or calls from credit card companies offering
     overdraft protection to existing customers---would, in most
     instances, constitute "unsolicited advertisements," regardless of
     the customer service element to the call.[^483] The Commission
     explained in the *2002 Notice* that such messages may inquire about
     a customer's satisfaction with a product already purchased, but are
     motivated in part by the desire to ultimately sell additional goods
     or services. If the call is intended to offer property, goods, or
     services for sale either during the call, or in the future (such as
     in response to a message that provides a toll-free number), that
     call is an advertisement. Similarly, a message that seeks people to
     help sell or market a business' products, constitutes an
     advertisement if the individuals called are encouraged to purchase,
     rent, or invest in property, goods, or services, during or after
     the call. However, the Commission points out that, if the message
     is delivered by a company that has an established business
     relationship with the recipient, it would be permitted under our
     rules. We also note that absent an established business
     relationship, the telemarketer must first obtain the prior express
     consent of the called party in order to lawfully initiate the call.
     Purporting to obtain consent during the call, such as requesting
     that a consumer "press 1" to receive further information, does not
     constitute the *prior* consent necessary to deliver the message in
     the first place, as the request to "press 1" is part of the
     telemarketing call.

### Identification Requirements

143. The TCPA rules require that all artificial or prerecorded messages
     delivered by an automatic telephone dialing system identify the
     business, individual, or other entity initiating the call, and the
     telephone number or address of such business, individual or other
     entity.[^484] Additionally, the Commission's rules contain
     identification requirements that apply without limitation to "any
     telephone solicitation to a residential telephone
     subscriber."[^485] The term "telephone solicitation" is defined to
     mean "the initiation of a telephone call or *message* for the
     purpose of encouraging the purchase or rental of . . . property,
     goods, or services . . ." (emphasis added).[^486] We sought
     comment, however, on whether we should modify our rules to state
     expressly that the identification requirements apply to otherwise
     lawful artificial or prerecorded messages, as well as to live
     solicitation calls.[^487]

144. The vast majority of consumer and industry commenters support
     modifying the rules to provide expressly that telemarketers must
     comply with the identification requirements when delivering
     prerecorded messages.[^488] Some consumers urge the Commission to
     require specifically that companies provide the name of the company
     under which it is registered to do business.[^489] They explain
     that a company will often use a "d/b/a" ("doing business as") or
     "alias" in the text of the prerecorded message, making it difficult
     to identify the company calling. The Commission recognizes that
     adequate identification information is vital so that consumers can
     determine the purpose of the call, possibly make a do-not-call
     request, and monitor compliance with the TCPA rules.[^490]
     Therefore, we are amending our rules to expressly require that all
     prerecorded messages, whether delivered by automated dialing
     equipment or not, identify the name of the business, individual or
     other entity that is responsible for initiating the call, along
     with the telephone number of such business, other entity, or
     individual.[^491] With respect to the caller's name, the
     prerecorded message must contain, at a minimum, the legal name
     under which the business, individual or entity calling is
     registered to operate. The Commission recognizes that some
     businesses use "d/b/as" or aliases for marketing purposes. The rule
     does not prohibit the use of such additional information, provided
     the legal name of the business is also stated. The rule also
     requires that the telephone number stated in the message be one
     that a consumer can use during normal business hours to ask not to
     be called again.[^492] If the number provided in the message is
     that of a telemarketer hired to deliver the message, the company on
     whose behalf the message is sent is nevertheless liable for failing
     to honor any do-not-call request. This is consistent with the rules
     on live solicitation calls by telemarketers.[^493] If a consumer
     asks not to be called again, the telemarketer must record the
     do-not-call request, and the company on whose behalf the call was
     made must honor that request.

### Radio Station and Television Broadcaster Calls

145. The TCPA prohibits the delivery of prerecorded messages to
     residential telephone lines without the prior express consent of
     the called party.[^494] Commission rules exempt from the
     prohibition calls that are made for a commercial purpose but do not
     include any unsolicited advertisement.[^495] The Commission sought
     comment on prerecorded messages sent by radio stations or
     television broadcasters that encourage telephone subscribers to
     tune in at a particular time for a chance to win a prize or similar
     opportunity.[^496] We asked whether the Commission should
     specifically address these kinds of calls, and if so, how. The
     record reveals that such calls by radio stations and television
     broadcasters do not at this time warrant the adoption of new rules.
     Few commenters in this proceeding described either receiving such
     messages or that they were particularly problematic.[^497] The few
     commenters who addressed the issue were split on whether such
     messages fall within the TCPA's definition of "unsolicited
     advertisement" and are thus subject to the restrictions on their
     delivery.[^498] We conclude that if the purpose of the message is
     merely to invite a consumer to listen to or view a broadcast, such
     message is permitted under the current rules as a commercial call
     that "does not include the transmission of any unsolicited
     advertisement" and under the amended rules as "a commercial call
     that does not include or introduce an unsolicited advertisement or
     constitute a telephone solicitation."[^499] The Commission
     reiterates, however, that messages that are part of an overall
     marketing campaign to encourage the purchase of goods or services
     or that describe the commercial availability or quality of any
     goods or services, are "advertisements" as defined by the TCPA.
     Messages need not contain a solicitation of a sale during the call
     to constitute an advertisement.

#  ABANDONED CALLS

## Background

146. In the *2002 Notice,* the Commission noted that various
     technologies are widely used by telemarketers to contact greater
     numbers of consumers more efficiently.[^500] We explained that the
     use of one such technology---predictive dialing software---may
     result in a significant number of abandoned calls.[^501] Predictive
     dialers initiate phone calls while telemarketers are talking to
     other consumers and frequently disconnect those calls when a
     telemarketer is unavailable to take the next call. In attempting to
     "predict" the average time it takes for a consumer to answer the
     phone and when a telemarketer will be free to take the next call,
     predictive dialers may either "hang-up" on consumers or keep the
     consumer on hold until connecting the call to a sales
     representative, resulting in what has been referred to as "dead
     air."[^502] Predictive dialers reduce the amount of down time for
     sales agents, as consumers are more likely to be on the line when
     the telemarketer completes a call. Each telemarketing company can
     set its predictive dialer software for a predetermined abandonment
     rate.[^503] The higher the abandonment rate, the higher the number
     of hang-up calls. The Commission asked what approaches we might
     take to minimize the harm that results from the use of predictive
     dialers.[^504] We invited comment specifically on the possibility
     of setting a maximum rate on the number of abandoned calls.[^505]

147. The record shows that the use of predictive dialers has, in fact,
     become more prevalent in the telemarketing industry.[^506] The
     record also reveals that predictive dialers are responsible for the
     vast majority of abandoned telemarketing calls---both hang-ups and
     "dead air" calls. Individual consumers report receiving between
     three and ten hang-up calls each day.[^507] Consumers often feel
     harassed or aggravated by "dead air" calls.[^508] Many describe the
     burdens these calls impose on individuals with disabilities, who
     often struggle to answer the telephone.[^509] Hang-ups and "dead
     air" calls also can be frightening for the elderly.[^510] Consumers
     complain that they do not have an opportunity to request placement
     on a company's do-not-call list when predictive dialers disconnect
     calls.[^511] Abandoned calls can also interfere with Internet usage
     or simply tie-up telephone lines for people telecommuting or
     operating businesses out of the home.[^512] Many consumer groups
     contend that the only way to effectively alleviate these harms is
     to implement a zero abandonment rate on calls delivered by
     predictive dialers, or one as close to zero as possible.[^513]
     Other consumer advocates support a ban on predictive dialers
     altogether.[^514]

148. Telemarketers acknowledge that use of predictive dialers results in
     a certain percentage of dropped calls.[^515] But they contend that
     predictive dialers are a valuable tool for increasing productivity
     and lowering costs for telemarketers and, ultimately, for
     consumers.[^516] Some industry members oppose restrictions on the
     use of predictive dialers, maintaining that the industry has
     "natural incentives" to keep abandonment rates low to avoid
     alienating consumers.[^517] Others contend that a set rate would
     not account for the needs of various telemarketing campaigns.[^518]
     While many telemarketers maintain that a maximum abandonment rate
     would eliminate the benefits that result from the use of predictive
     dialers,[^519] most would nevertheless support a call abandonment
     rate of 5 percent.[^520] A few commenters, including the DMA, would
     not oppose a 3 percent maximum rate.[^521] One industry commenter,
     who supported a set abandonment rate on predictive dialers, stated
     that if non-telemarketing entities continue to dial without
     restriction, consumers will be encouraged to join do-not-call
     lists.[^522]

149. In its telemarketing proceeding, the FTC determined that a total
     ban on abandoned calls would amount to a ban on predictive dialers,
     and would not strike the proper balance between addressing an
     abusive practice and allowing for a technology that reduces costs
     for telemarketers.[^523] The FTC's amended Rule prohibits abandoned
     calls,[^524] but provides in a "safe harbor" that a seller or
     telemarketer will not be deemed to have violated the TSR if the
     seller or telemarketer can show that its conduct conforms to
     certain specified standards, including a call abandonment rate of
     no more than three (3) percent, measured on a per day per campaign
     basis.[^525]

## Discussion

150. Given the arguments raised on both sides of this issue as well as
     the FTC's approach to the problem, the Commission has determined to
     adopt a rule to reduce the number of abandoned calls consumers
     receive.[^526] Under the new rules, telemarketers must ensure that
     any technology used to dial telephone numbers abandons no more than
     three (3) percent of calls answered by a person, measured over a
     30-day period. A call will be considered abandoned if it is not
     transferred to a live sales agent within two (2) seconds of the
     recipient's completed greeting. When a call is abandoned within the
     three (3) percent maximum allowed, a telemarketer must deliver a
     prerecorded identification message containing only the
     telemarketer's name, telephone number, and notification that the
     call is for "telemarketing purposes." To allow time for a consumer
     to answer the phone, the telemarketer must allow the phone to ring
     for fifteen seconds or four rings before disconnecting any
     unanswered call. Finally, telemarketers using predictive dialers
     must maintain records that provide clear and convincing evidence
     that the dialers used comply with the three (3) percent call
     abandonment rate, "ring time" and two-second-transfer rule.

### Maximum Rate on Abandoned Calls 

151. The Commission believes that establishing a maximum call
     abandonment rate is the best option to reduce effectively the
     number of hang-ups and "dead air" calls consumers experience. We
     recognize that industry generally advocates a five percent
     abandonment rate, claiming that a rate lower than five percent
     would reduce efficiencies the technology provides.[^527] However,
     the Commission is not convinced that a five percent rate will lead
     to a reasonable reduction in the number of abandoned calls. The
     DMA's current guideline, cited by many commenters, calls for an
     abandonment rate of no higher than five percent.[^528] And several
     telemarketers maintain that they now utilize an abandonment rate of
     five percent or lower in their calling campaigns.[^529] Consumers
     nevertheless report receiving as many as 20 dropped calls per day
     that interrupt dinners, interfere with home business operations,
     and sometimes frighten the elderly and parents with young
     children.[^530] A rule that is consistent with the FTC's will
     effectively create a national standard with which telemarketers
     must comply and should lead to fewer abandoned calls, while
     permitting telemarketers to continue to benefit from such
     technology. It is also responsive to Congress' mandate in the
     Do-Not-Call Act to maximize consistency with the FTC's rules.

152. The three percent abandonment rate will be measured over a 30-day
     period, a standard supported by several industry commenters.[^531]
     Industry members maintain that measuring the abandonment rate on a
     per day basis would severely curtail the efficiencies gained from
     the use of predictive dialers, and may be overly burdensome to
     smaller telemarketers. A per day measurement, they argue, would not
     account for short-term fluctuations in marketing campaigns.[^532]
     They further argue that the impact of abandoned calls on consumers
     depends more on the aggregate number of contacts made by a
     telemarketer over time and not on the number in any given
     day.[^533] The Commission believes that a three (3) percent
     abandonment rate measured over a 30-day period will ensure that
     consumers consistently receive fewer disconnected calls, and that
     telemarketers are permitted to manage their calling campaigns
     effectively under the new rules on abandoned calls. Although we
     recognize that this rate of measurement differs from the FTC's
     rule, we believe a rate measured over a longer period of time will
     allow for variations in telemarketing campaigns such as calling
     times, number of operators available, number of telephone lines
     used by the call centers, and other similar factors.[^534] The
     record also suggests that an abandonment rate measured over a
     30-day period will allow telemarketers to more easily comply with
     the recordkeeping requirements associated with the use of
     predictive dialers.[^535]

### Two-Second-Transfer Rule

153. The record confirms that many consumers are angered by the "dead
     air" they often face when answering the telephone. Running to the
     telephone only to be met by silence can be frustrating and even
     frightening, if the caller cannot be identified.[^536] To address
     the problem of "dead air" produced by dialing technologies, the
     Commission has determined that a call will be considered abandoned
     if the telemarketer fails to connect the call to a sales
     representative within two (2) seconds of the person's completed
     greeting.[^537] Calls disconnected because they were never answered
     (within the required 15 seconds or 4 rings) or because they
     received busy signals will not be considered abandoned.[^538] This
     requirement is consistent with the FTC's rule.[^539]

154. *[Answering Machine Detection]{.underline}*. Opposition from
     industry to the two-second-transfer requirement appears to be based
     largely on its implications for use of Answering Machine Detection
     (AMD).[^540] Some industry members explain that AMD is used by
     telemarketers to detect answering machines, and thereby avoid
     leaving messages on them.[^541] The ATA and DMA maintain that if
     telemarketers are required to connect to a sales agent or message
     within 1-2 seconds, a large percentage of calls reaching answering
     machines will be transferred to sales agents, thereby reducing the
     efficiencies gained from AMD.[^542] According to these commenters,
     1-2 seconds is often insufficient for AMD to determine accurately
     if the call has reached an answering machine.[^543] Other
     commenters explain that AMD is used instead by telemarketers to
     transmit prerecorded messages to answering machines; in such
     circumstances, calls that reach live persons are
     disconnected.[^544] It is unclear from the record how prevalent the
     use of AMD is in the telemarketing industry. One commenter stated
     that the elimination of AMD would put "consumer-oriented"
     telemarketing firms out of business.[^545] However, other industry
     members acknowledge that AMD contributes significantly to the
     amount of "dead air" consumers experience,[^546] and one large
     telemarketing firm maintains that AMD should be banned
     completely.[^547] The Commission believes that the record does not
     warrant a ban on the use of AMD. Instead, if the AMD technology is
     deployed in such a way that the delay in transfer time to a sales
     agent is limited to two seconds, then its continued use should not
     adversely affect consumers' privacy interests.[^548]

### Prerecorded Message for Identification 

155. As noted above, the FTC's "safe harbor" provisions require that,
     when a sales agent is unavailable to speak to a person answering
     the phone, marketers deliver a prerecorded message that states the
     name and telephone number of the seller on whose behalf the call
     was made.[^549] The Commission has similarly determined that when a
     telemarketer abandons a call under the three (3) percent rate
     allowed, the telemarketer must deliver a prerecorded message
     containing the name of the business, individual or other entity
     initiating the call, as well as the telephone number of such
     business, individual or other entity. The message must also state
     that the call is for "telemarketing purposes."[^550] We recognize
     that many consumers are frustrated with prerecorded messages.[^551]
     However, the record also reveals that consumers are frightened and
     angered by "dead air" calls and repeated hang-ups. A prerecorded
     message, limited to identification information only, should
     mitigate the harms that result from "dead air," as consumers will
     know who is calling them.[^552] And, they will more easily be able
     to make a do-not-call request of a company by calling the number
     provided in the message. We note that such messages sent in excess
     of the three (3) percent allowed under the call abandonment rate,
     will be considered abandoned calls, unless otherwise permitted by
     our rules. The content of the message must be limited to name and
     telephone number, along with a notice to the called party that the
     call is for "telemarketing purposes." The message may not be used
     to deliver an unsolicited advertisement.[^553] We caution that
     additional information in the prerecorded message constituting an
     unsolicited advertisement would be a violation of our rules, if not
     otherwise permitted under 47 C.F.R. § 64.1200(a)(2).[^554]

### Established Business Relationship

156. While the TCPA prohibits telephone calls to residential phone lines
     using an artificial or prerecorded voice to deliver a message
     without the prior express consent of the called party, the
     Commission determined that the TCPA permits an exemption for
     established business relationship calls from the restriction on
     artificial or prerecorded message calls to residences.[^555] As
     discussed in detail above, the record reveals that an established
     business relationship exemption is necessary to allow companies to
     contact their existing customers.[^556] Companies currently use
     prerecorded messages, for example, to notify their customers about
     new calling plans, new mortgage rates, and seasonal services such
     as chimney sweeping and lawn care.[^557] Therefore, prerecorded
     messages sent by companies to customers with whom they have an
     established business relationship will not be considered
     "abandoned" under the revised rules, if they are delivered within
     two (2) seconds of the person's completed greeting. Similarly, any
     messages initiated with the called party's prior express consent
     and delivered within two (2) seconds of the called person's
     completed greeting are not "abandoned" calls under the new
     rules.[^558] Such messages must identify the business, individual
     or entity making the call and contain a telephone number that a
     consumer may call to request placement on a do-not-call list. We
     recognize that the established business relationship exception to
     the prohibition on prerecorded messages conflicts with the FTC's
     amended rule.[^559] However, for the reasons described above, we
     believe the current exception is necessary to avoid interfering
     with ongoing business relationships.

### Ring Duration

157. The Commission also adopts a requirement that telemarketers allow
     the phone to ring for 15 seconds or four (4) rings before
     disconnecting any unanswered call. This standard is consistent with
     that of the FTC, similar to current DMA guidelines,[^560] and used
     by some telemarketers already.[^561] One industry commenter
     asserted that telemarketers often set the predictive dialers to
     ring for a very short period of time before disconnecting the call;
     in such cases, the predictive dialer does not record the call as
     having been abandoned.[^562] The practice of ringing and then
     disconnecting the call before the consumer has an opportunity to
     answer the phone is intrusive of consumer privacy and serves only
     to increase efficiencies for telemarketers. Moreover, in discussing
     the interplay between the FTC's rules with the Commission's rules,
     very few commenters opposed the "ring time" requirement adopted by
     the FTC,[^563] or raised any particular concerns about how it might
     work in the TCPA framework. Therefore, given the substantial
     interest in protecting consumers' privacy interests, as well as
     Congress's direction to maximize consistency with the FTC's rules,
     we have determined to adopt the 15 second or four (4) ring
     requirement.

158. Finally, consistent with the FTC's rules, the Commission has
     determined that telemarketers must maintain records establishing
     that the technology used to dial numbers complies with the
     three (3) percent call abandonment rate, "ring time," and
     two-second rule on connecting to a live sales agent. Telemarketers
     must provide such records in order to demonstrate compliance with
     the call abandonment rules. Only by adopting a recordkeeping
     requirement will the Commission be able to adequately enforce the
     rules on the use of predictive dialers.

159. The TCPA seeks primarily to protect subscribers from unrestricted
     commercial telemarketing calls, and therefore exempts calls or
     messages by tax-exempt nonprofit organizations from the definition
     of telephone solicitation.[^564] Therefore, the Commission has
     determined not to extend the call abandonment rules to tax-exempt
     nonprofit organizations in the absence of further guidance from
     Congress.[^565] However, the call abandonment rules will apply to
     all other companies engaged in telemarketing, and the existence of
     an established business relationship between the telemarketer and
     consumer will not be an exception to these rules. For these
     entities, the call abandonment rules will become effective on
     October 1, 2003. We decline to establish an effective date beyond
     October 1, 2003, which is consistent with the date that
     telemarketers must comply with the FTC's call abandonment
     rules.[^566] This should permit telemarketers to make any
     modifications to their autodialing equipment or purchase any new
     software to enable them to comply with the three (3) percent call
     abandonment rate, the prerecorded message requirement and the
     two-second-transfer rule.

#  WIRELESS TELEPHONE NUMBERS

## Background

160. In the *2002 Notice*, the Commission noted that the TCPA permits
     the Commission to exempt from the restrictions on autodialer or
     prerecorded message calls, "calls to a telephone number assigned to
     a cellular telephone service that are not charged to the called
     party, subject to such conditions as the Commission may prescribe
     as necessary in the interest of the privacy rights \[the TCPA\] is
     intended to protect."[^567] In the *1992 TCPA Order*, the
     Commission concluded that calls made by *cellular carriers* to
     their subscribers for which the subscribers were not charged do not
     fall within the prohibitions on autodialers or prerecorded
     messages.[^568] We sought comment on the extent to which
     telemarketing to wireless consumers exists today and if so, the
     nature and frequency of such solicitations.[^569] We asked whether
     there are other types of calls to wireless telephone numbers that
     are not charged to the called party, and whether such calls also
     should not fall within the prohibitions on autodialers or
     prerecorded messages.[^570] We also sought comment on any
     developments anticipated in the near future that may affect
     telemarketing to wireless phone numbers. Specifically, we asked how
     telemarketers will identify wireless numbers in order to comply
     with the TCPA when consumers are able to port numbers from their
     wireline phones to wireless phones,[^571] or receive numbers from a
     thousands-block[^572] that was part of a central office code
     previously assigned to a wireline carrier.[^573] The Commission
     further sought comment on whether the Commission's rules should be
     modified to facilitate telemarketers' efforts to comply with the
     TCPA.

161. *[Local Number Portability and Pooling]{.underline}*. The
     Commission's local number portability (LNP) decisions date back to
     1996, with the Commission granting a number of extensions to the
     effective date for wireless carriers, providing the industry and
     other interested parties with extensive advance notice of the
     impending implementation of wireless LNP. The Commission determined
     in the *Number Portability First Report and Order* that LECs and
     certain CMRS providers operating in the 100 largest MSAs must offer
     local number portability, according to a phased deployment
     schedule.[^574] This requirement was subsequently limited by the
     *Number Portability First Order on Reconsideration*, in which the
     Commission concluded that LECs and covered CMRS providers were
     required only to deploy LNP within switches for which another
     carrier has made a specific request for the provision of LNP.[^575]
     CMRS carriers are required to implement LNP on November 24, 2003,
     for switches in the top 100 MSAs requested by February 24,
     2003.[^576] After November 24, 2003, CMRS carriers have 30 to 180
     days from the request date to implement number portability for
     switches in the top 100 MSAs not previously requested and for
     switches outside the top 100 MSAs.[^577]

162. In the *Numbering Resource Optimization First Report and Order*,
     the Commission established national thousands-block number pooling
     (pooling) as an LNP-based numbering resource optimization measure
     designed to help slow the pace of area code and North American
     Numbering Plan (NANP) exhaust.[^578] This measure involves breaking
     up the 10,000 numbers in an NXX into ten sequential blocks of 1,000
     numbers each, and allocating each thousands-block to a different
     service provider, and possibly a different switch, within the same
     rate center. The Commission mandated participation in national
     pooling by all carriers that are required to be LNP-capable,
     because it believed that LNP capability was required before a
     carrier could participate in thousands-block number pooling.[^579]
     In the *Numbering Resource Optimization Fourth Report and Order*,
     the Commission determined that thousands-block number pooling need
     not be linked to a carrier's ability to provide LNP because a
     carrier can participate in pooling once it deploys the location
     routing number architecture.[^580] The Commission, therefore,
     concluded that all carriers, except those specifically exempted,
     are required to participate in thousands-block number pooling in
     accordance with the national rollout schedule,[^581] regardless of
     whether they are required to provide LNP, including covered CMRS
     providers.[^582]

163. *[Telemarketing to Wireless Numbers.]{.underline}* The record
     suggests that while consumers receive telemarketing calls on their
     wireless phones, it is not a widespread practice at this
     time.[^583] However, some industry members believe that
     telemarketing calls to wireless numbers are likely to
     increase,[^584] particularly as growing numbers of consumers use
     wireless phones as their primary phones.[^585] One commenter
     pointed out that the record in this proceeding demonstrates that
     telemarketers would like to solicit consumers on their wireless
     phones.[^586] Although the record does not reflect the full panoply
     of methods telemarketers currently use to avoid calling wireless
     telephone numbers, the record provides a sampling of such
     methods.[^587] For example, the Direct Marketing Association's
     (DMA) Telephone Preference Service allows consumers to opt-out of
     national telemarketing lists, allowing consumers to register their
     wireless phone numbers in order to ensure that they do not receive
     telemarketing calls on their wireless phones.[^588] Additionally,
     the DMA has created the "Wireless Telephone Suppression
     Service."[^589] A number of commenters contended that telemarketing
     to wireless phones is not a significant problem, indicating that
     the industries' voluntary efforts have been successful.[^590]
     Commenters also state that the wireless and telemarketing
     industries have been actively working together to ensure that
     telemarketing does not become a problem for wireless
     customers.[^591]

164. Most consumer groups maintain that all telemarketing calls to
     wireless numbers should be prohibited, regardless of whether they
     are made using an autodialer, prerecorded message, or live sales
     agent.[^592] The vast majority of consumer advocates contend that
     telemarketing calls to cell phones are as intrusive of consumers'
     privacy interests as calls to landline phones.[^593] Some believe
     they are more so, as consumers carry their cell phones on their
     persons, to work, and while driving.[^594] Some also contend the
     prohibition should apply whether the consumer incurs a per-minute
     charge or a reduction from a "bucket" of minutes purchased at a
     fixed rate.[^595] A few industry commenters agree that wireless
     subscribers should be protected from telemarketing calls to their
     wireless numbers.[^596] Other industry members contend that
     wireless phones should be treated like wireline phones, in part
     because of the difficulty in distinguishing between wireline and
     wireless numbers.[^597] American General Finance argues that the
     incremental cost of receiving a cell phone call is not
     significantly different from the cost of receiving a non-cellular
     call.[^598] Some commenters suggest permitting calls to wireless
     numbers when there is an established business relationship,[^599]
     when the calls are made for survey research purposes,[^600] or when
     consumers have provided their cell phone numbers to the calling
     entity.[^601] The ATA urges the Commission to find that calls to
     cellular telephones are not "charged to the called party" as
     contemplated by the TCPA's restriction on autodialed calls.[^602]

## Discussion

### Telemarketing Calls to Wireless Numbers 

165. We affirm that under the TCPA, it is unlawful to make *any call*
     using an automatic telephone dialing system or an artificial or
     prerecorded message to any wireless telephone number.[^603] Both
     the statute and our rules[^604] prohibit these calls, with limited
     exceptions, "to any telephone number assigned to a paging service,
     cellular telephone service, specialized mobile radio service, or
     other common carrier service, or any service for which the called
     party is charged."[^605] This encompasses both voice calls and text
     calls to wireless numbers including, for example, short message
     service (SMS) calls, provided the call is made to a telephone
     number assigned to such service.[^606] Congress found that
     automated or prerecorded telephone calls were a greater nuisance
     and invasion of privacy than live solicitation calls.[^607]
     Moreover, such calls can be costly and inconvenient.[^608] The
     Commission has long recognized, and the record in this proceeding
     supports the same conclusion, that wireless customers are charged
     for incoming calls whether they pay in advance or after the minutes
     are used.[^609] Wireless subscribers who purchase a large "bucket"
     of minutes at a fixed rate nevertheless are charged for those
     minutes, and for any minutes that exceed the "bucket" allowance.
     This "bucket" could be exceeded more quickly if consumers receive
     numerous unwanted telemarketing calls.[^610] Moreover, as several
     commenters point out, telemarketers have no way to determine how
     consumers are charged for their wireless service.

166. Although the same economic and safety concerns apply to all
     telephone solicitation calls received by wireless subscribers, the
     Commission has determined not to prohibit all live telephone
     solicitations to wireless numbers.[^611] The national do-not-call
     database will allow for the registration of wireless telephone
     numbers for those subscribers who wish to avoid live telemarketing
     calls to their wireless phones. Wireless subscribers thus have a
     simple means of preventing most live telemarketing calls if they so
     desire.[^612] Moreover, relying on the do-not-call database to
     control live telephone solicitations recognizes that prohibiting
     such calls to wireless numbers may unduly restrict telemarketers'
     ability to contact those consumers who do not object to receiving
     telemarketing calls[^613] and use their wireless phones as either
     their primary or only phone.[^614]

167. The Commission's rules provide that companies making telephone
     solicitations to residential telephone subscribers must comply with
     time of day restrictions and must institute procedures for
     maintaining do-not-call lists.[^615] For the reasons described
     above,[^616] we conclude that these rules apply to calls made to
     wireless telephone numbers. We believe that wireless subscribers
     should be afforded the same protections as wireline
     subscribers.[^617]

### Wireless Number Portability and Pooling

168. Based on the evidence in the record, we find that it is not
     necessary to add rules to implement the TCPA as a result of the
     introduction of wireless LNP and thousands-block number pooling.
     The TCPA rules prohibiting telemarketers from placing autodialed
     and prerecorded message calls to wireless numbers have been in
     place for twelve years.[^618] Further, the Commission's pooling
     requirements have been in place for several years and the porting
     requirements have been in place for over five years. Accordingly,
     telemarketers have received sufficient notice of these requirements
     in order to develop business practices that will allow them to
     continue to comply with the TCPA.

169. Additionally, telemarketers have taken measures in the past to
     identify wireless numbers, and there is no indication that these
     measures would not continue to be effective for identifying
     wireless numbers affected by pooling and porting. As noted above,
     the industry currently makes use of a variety of tools to enable it
     to avoid making prohibited calls. As discussed in detail
     *supra*,[^619] the record provides a sampling of methods, including
     the DMA's "Wireless Telephone Suppression Service," that
     telemarketers use to avoid making prohibited calls to wireless
     numbers.[^620]

170. LNP and pooling do not make it impossible for telemarketers to
     comply with the TCPA. The record demonstrates that information is
     available from a variety of sources to assist telemarketers in
     determining which numbers are assigned to wireless carriers. For
     example, NeuStar as the North American Numbering Plan
     Administrator, the National Pooling Administrator, and the LNP
     Administrator makes information available that can assist
     telemarketers in identifying numbers assigned to wireless carriers.
     Also, other commercial enterprises such as Telcordia, the
     owner-operator of the Local Exchange Routing Guide (LERG) maintain
     information that can assist telemarketers in identifying numbers
     assigned to wireless carriers. We acknowledge that beginning
     November 24, 2003, numbers previously used for wireline service
     could be ported to wireless service providers and that
     telemarketers will need to take the steps necessary to identify
     these numbers. We also note that there are various solutions that
     will enable telemarketers to identify wireless numbers in a pooling
     and number portability environment. We decline to mandate a
     specific solution, but rather rely on the telemarketing industry to
     select solutions that best fit telemarketers' needs. The record
     demonstrates that telemarketers have found adequate methods in the
     past to comply with the TCPA's prohibition on telephone calls using
     an autodialer or an artificial or prerecorded voice message to any
     telephone number assigned to a cellular telephone service, a paging
     service, or any service for which the called party is charged for
     the call. We expect telemarketers to continue to make use of the
     tools available in the marketplace in order to ensure continued
     compliance with the TCPA.[^621]

171. Moreover, the record indicates that telemarketing to wireless
     phones is not a significant problem, indicating that the
     industries' voluntary efforts have been successful.[^622]
     Commenters further declare that the wireless and telemarketing
     industries have been actively working together to ensure that
     telemarketing does not become a problem for wireless customers.

172. Finally, we reject proposals to create a good faith exception for
     inadvertent autodialed or prerecorded calls to wireless numbers and
     proposals to create implied consent because we find that there are
     adequate solutions in the marketplace to enable telemarketers to
     identify wireless numbers.[^623]

# CALLER IDENTIFICATION

## Background

173. In the *1992 TCPA Order*, the Commission considered whether to
     require telemarketers to use a special area code or telephone
     number prefix that would allow consumers to block unwanted
     telephone solicitations using a caller identification (caller ID)
     service. Based on cost and the "technological uncertainties
     associated with implementation," the Commission declined to adopt
     any type of network technologies to accomplish the objectives of
     the TCPA.[^624]

174. In the *2002 Notice*, the Commission sought comment on whether
     network technologies have been developed over the last decade that
     may allow consumers to avoid receiving unwanted telephone
     solicitations. The Commission sought comment specifically on
     whether to require telemarketers to transmit the name and telephone
     number of the calling party, when possible, or prohibit them from
     blocking or altering the transmission of such information.[^625]
     Comments filed by consumers, state utility commissions, and
     wireless service providers generally support a requirement that
     telemarketers transmit caller identification information.[^626]
     Consumers are frustrated by the failure of many telemarketers to
     transmit caller ID information, which, under certain circumstances,
     makes it difficult for consumers to enforce the TCPA.[^627]
     Commenters also noted that the increased use of predictive dialers
     has led to a corresponding increase in the number of hang-ups.
     Caller ID information would allow consumers, they contend, to
     identify those telemarketers responsible for hang-up calls.[^628]
     Some commenters stated that the inability to identify callers has
     led them to purchase other tools, such as the "telezapper," to try
     to stop unwanted solicitation calls.[^629] Most commenters that
     addressed these issues support a prohibition against the blocking
     of caller ID information.[^630] Several parties stated that the
     Commission should prohibit blocking independent of any caller ID
     mandate.[^631] It was also suggested that the Commission could
     prohibit tampering with data or providing false data.[^632]

175. Some industry members suggest that the transmission of caller ID
     information may not be technically possible in all
     circumstances.[^633] They also maintain that a caller ID
     requirement could be costly for telemarketers.[^634] One particular
     concern raised by parties opposed to a caller ID mandate is the
     technical feasibility of transmitting caller ID information when
     using private branch exchanges (PBX). WorldCom maintains that, in
     situations where telemarketers use a PBX that connects to their
     telephone company through typical T-1 trunks, Calling Party Number
     (CPN) cannot be transmitted.[^635] WorldCom contends that
     Integrated Services Digital Network (ISDN) T-1 trunks *may* be
     capable of transmitting CPN, but that typical T-1 trunks do not
     have this capability.[^636] DialAmerica notes that it has been
     delivering CPN for over two years using regular T-1 trunk groups
     provisioned by AT&T.[^637] DialAmerica transmits an outgoing number
     which is captured by caller ID equipment. If a consumer chooses to
     call that number, the local exchange carrier (LEC) forwards the
     call to DialAmerica's customer service center.[^638] DialAmerica
     asserts that ISDN T-1 trunks are available from all carriers and
     enable a user to control whether CPN is delivered and what
     telephone number is displayed.[^639] WorldCom notes that even if we
     accept DialAmerica's assertion that ISDN trunks are universally
     available, carriers would have to upgrade network switches to
     accommodate additional digital switch ports necessitated by
     telemarketers' shift to ISDN-PRI trunks.[^640]

176. Telemarketers also raised technical concerns that the ability to
     transmit caller ID information is dependent on the deployment of
     Signaling System 7 (SS7).[^641] They argue that SS7 is not
     nationally deployed and thus the capability to transmit caller ID
     is not available throughout the country.[^642] Moreover, they
     maintain that Commission rules exempt PBX and Centrex systems from
     existing caller ID requirements because some of them cannot
     transmit CPN,[^643] and not all carriers are able or permitted to
     transmit CPN, if they lack blocking capability.[^644] The DMA and
     WorldCom expressed concern that regardless of whether the
     telemarketer is able to transmit CPN, consumers will expect it, and
     may incorrectly believe a company has violated the rules.[^645]

177. Several parties argue that even if a telemarketer can transmit CPN
     information, how to transmit a number that is useful to consumers
     remains a challenge.[^646] Comments were mixed on what information
     actually needed to be transmitted for purposes of caller ID.
     Several parties opined that the name of the telemarketing operator
     would be adequate identification.[^647] Others asserted that the
     name of the company on whose behalf the call was being made should
     be provided.[^648] Emergency Communications Network argued that a
     company's website information should be a permitted as a substitute
     for the name and phone number.[^649]

178. The FTC's amended TSR mandates transmission of caller ID
     information and prohibits any seller or telemarketer from "failing
     to transmit or cause to be transmitted the telephone number, and
     when made available by the telemarketer's carrier, the name of the
     telemarketer, to any caller identification service in use by a
     recipient of a telemarketing call."[^650] Under the FTC's rule,
     telemarketers may transmit any number associated with the
     telemarketer that allows the called consumer to identify the
     caller.[^651] The FTC concluded that transmission of caller ID
     would provide increased accountability and was technically feasible
     at minimal costs to telemarketers. The DMA stated that it was
     concerned that technical issues were not adequately taken into
     account during the FTC's proceeding. The DMA requested that the FCC
     initiate a comprehensive review of the technical feasibility of
     caller ID.[^652]

## Discussion

179. The Commission has determined to require all sellers and
     telemarketers to transmit caller ID information, regardless of
     their calling systems. In addition, any person or entity engaging
     in telemarketing is prohibited from blocking the transmission of
     caller ID information. Caller ID information must include either
     ANI or CPN and, when available by the telemarketer's carrier, the
     name of the telemarketer. If the information required is not passed
     through to the consumer, through no fault of the telemarketer
     originating the call, then the telemarketer will not be held liable
     for failure to comply with the rules.[^653] In such a circumstance,
     the telemarketer must provide clear and convincing evidence that
     the caller ID information could not be transmitted. However, the
     Commission concurs with the FTC that caller ID information can be
     transmitted cost effectively for the vast majority of calls made by
     telemarketers.[^654] Caller ID allows consumers to screen out
     unwanted calls and to identify companies that they wish to ask not
     to call again. Knowing the identity of the caller is also helpful
     to consumers who feel frightened or threatened by hang-up and "dead
     air" calls.[^655] We disagree with those commenters who argue that
     caller ID information only benefits those consumers who subscribe
     to caller ID services.[^656] Consumers can also use the \*69
     feature to obtain caller ID information transmitted by a
     telemarketer.[^657] Caller ID also should increase accountability
     and provide an important resource for the FCC and FTC in pursuing
     enforcement actions against TCPA and TSR violators.[^658]

180. We conclude that while SS7 capability is not universally available,
     the vast majority of the United States has access to SS7
     infrastructure. The SS7 network contains functionality to transmit
     both the CPN and the charge number.[^659] Under the Commission's
     rules, with certain limited exceptions, common carriers using SS7
     and offering or subscribing to any service based on SS7
     functionality are required to transmit the CPN associated with an
     interstate call to connecting carriers.[^660] Regardless of whether
     SS7 is available, a LEC at the originating end of a call must
     receive and be able to transmit the Automated Number Identification
     (ANI) to the connecting carrier,[^661] as the ANI is the number
     transmitted through the network that identifies the calling party
     for billing purposes. Thus, we determine that telemarketers must
     ensure that either CPN or ANI is made available for all
     telemarketing calls in order to satisfy their caller ID
     requirements. Whenever possible, CPN is the preferred number and
     should be transmitted.[^662] Consistent with the FTC's rules, CPN
     can include any number associated with the telemarketer or party on
     whose behalf the call is made, that allows the consumer to identify
     the caller.[^663] This includes a number assigned to the
     telemarketer by its carrier, the specific number from which a sales
     representative placed a call, the number for the party on whose
     behalf the telemarketer is making the call, or the seller's
     customer service number. Any number supplied must permit an
     individual to make a do-not-call request during regular business
     hours for the duration of the telemarketing campaign.[^664]

181. As discussed above, some commenters state that it is not
     technically feasible for telemarketers to transmit caller ID
     information when using a PBX and typical T-1 trunks.[^665] As noted
     by NASUCA, the Commission's rules exempt from the current caller ID
     rules, PBX and Centrex systems which lack the capability to pass
     CPN information. Regardless of whether a call is made using a
     typical T-1 trunk or an ISDN trunk, ANI is transmitted to the Local
     Exchange Carrier for billing purposes.[^666] With both PBX and
     Centrex systems, the carrier can determine the billing number from
     the physical line being used to make a call, even if the billing
     number is not transmitted along that line to the carrier. We are
     cognizant of the fact that with PBX and Centrex systems, the
     billing number could be associated with multiple outgoing lines.
     Nevertheless, telemarketers using PBX or Centrex systems are
     required under the new rules not to block ANI, at a minimum, for
     caller ID purposes.

182. We recognize that ISDN technology is preferred, as it presents the
     opportunity to transmit both CPN and ANI. However, in situations
     where existing technology permits only the transmission of the ANI
     or charge number, then the ANI or charge number will satisfy the
     Commission's rules, provided it allows a consumer to make a
     do-not-call request during regular business hours.[^667] By
     allowing transmission of ANI or charge number to satisfy the caller
     ID requirement, we believe that carriers need not incur significant
     costs to upgrade T-1 and ISDN switches.[^668] For these same
     reasons, we also believe that mandating caller ID will not create a
     competitive advantage towards particular carriers.[^669] As typical
     T-1 technology is upgraded to ISDN technology, we expect that
     telemarketers will increasingly be able to transmit the preferred
     CPN instead of ANI or charge number.

183. Finally, the record strongly supports a prohibition on blocking
     caller ID information.[^670] Both NCL and NASUCA state that there
     is no valid reason why a telemarketer should be allowed to
     intentionally block the transmission of caller ID.[^671] We
     conclude that the caller ID requirements for commercial telephone
     solicitation calls do not implicate the privacy concerns associated
     with blocking capability for individuals.[^672] We recognize that
     absent a prohibition on blocking, a party could transmit CPN in
     accordance with the new rules and simultaneously transmit a request
     to block transmission of caller ID information. Thus, the
     Commission has determined to prohibit any request by a telemarketer
     to block caller ID information or ANI.

184. As explained above, the TCPA seeks primarily to protect subscribers
     from unrestricted commercial telemarketing calls. Therefore, the
     Commission has determined not to extend the caller ID requirements
     to tax-exempt nonprofit organizations. However, the caller ID rules
     will apply to all other companies engaged in telemarketing, and the
     existence of an established business relationship between the
     telemarketer and the consumer shall not be an exception to these
     rules. For all covered entities, the effective date of the caller
     ID requirements will be January 29, 2004.[^673] This will provide
     telemarketers a reasonable period of time to obtain or update any
     equipment or systems to enable them to transmit caller ID
     information. We decline to extend the effective date beyond January
     29, 2004, which is consistent with the date on which telemarketers
     are required to comply with the FTC's caller ID provision.[^674]

# Unsolicited facsimile advertisements

## Background

185. The TCPA prohibits the use of any telephone facsimile machine,
     computer or other device to send an "unsolicited advertisement" to
     a telephone facsimile machine.[^675] 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."[^676] The TCPA also requires those sending any
     messages via telephone facsimile machines to identify themselves to
     message recipients.[^677] In the *1992 TCPA Order*, the Commission
     stated that "the TCPA leaves the Commission without discretion to
     create exemptions from or limit the effects of the
     prohibition."[^678] It noted, however, that facsimile transmission
     from persons or entities that have an established business
     relationship with the recipient can be deemed to be invited or
     permitted by the recipient.[^679] The Commission sought comment on
     the effectiveness of these regulations and on any developing
     technologies, such as computerized fax servers, that might warrant
     revisiting the rules on unsolicited faxes.[^680] We specifically
     asked about the need to clarify what constitutes prior express
     invitation or permission for purposes of sending an unsolicited
     fax.[^681]

186. The record indicates that some consumers feel "besieged" by
     unsolicited faxes;[^682] others explain that advertisers continue
     to send faxes despite asking to be removed from senders' fax
     lists.[^683] Consumers emphasize that the burden of receiving
     unsolicited faxes is not just limited to the cost of paper and
     toner, but includes the time spent reading and disposing of faxes,
     the time the machine is printing an advertisement and is not
     operational for other purposes, and the intrusiveness of faxes
     transmitted at inconvenient times, including in the middle of the
     night.[^684] Some of the consumer advocates maintain that the
     current rules are ineffective[^685] and urge the Commission to take
     tougher measures to stop unwanted faxes by stricter enforcement
     measures,[^686] including higher penalties. A few home-based
     businesses and other companies maintain that facsimile
     advertisements interfere with receipt of faxes connected to their
     own business, and that the time spent collecting and sorting these
     faxes increases their labor costs.[^687] Industry members maintain
     that faxing is a cost-effective way to reach customers,[^688] and
     that the current exemption for established business relationships
     works well,[^689] particularly for small businesses for whom faxing
     is a cheaper way to advertise.[^690]

## Discussion

### Prior Express Invitation or Permission 

187. The Commission has determined that the TCPA requires a person or
     entity to obtain the prior express invitation or permission of the
     recipient before transmitting an unsolicited fax advertisement.
     This *express* invitation or permission must be in writing and
     include the recipient's signature.[^691] The recipient must clearly
     indicate that he or she consents to receiving such faxed
     advertisements from the company to which permission is given, and
     provide the individual or business's fax number to which faxes may
     be sent.

188. *[Established Business Relationship]{.underline}*. The TCPA does
     not act as a total ban on fax advertising. Persons and businesses
     that wish to advertise using faxes may, under the TCPA, do so with
     the express permission of the recipients. In the *2002 Notice*, we
     sought comment on whether an established business relationship
     between a fax sender and recipient establishes the requisite
     consent to receive telephone facsimile advertisements.[^692] The
     majority of industry commenters support the finding that facsimile
     transmissions from persons or entities that have an established
     business relationship with the recipient can be deemed to be
     invited or permitted by the recipient.[^693] These commenters
     maintain that eliminating the EBR exemption for facsimile
     advertisements would interfere with ongoing business relationships,
     raise business costs, and limit the flow of valuable information to
     consumers.[^694] They urge the Commission to amend the rules to
     expressly provide for the EBR exemption.[^695] Conversely, the
     majority of consumer advocates argue that the TCPA requires
     companies to obtain express permission from consumers---even their
     existing customers---before transmitting a fax to a consumer.[^696]
     Some consumer advocates maintain that the Commission erred in its
     1992 determination that a consumer, by virtue of an established
     business relationship, has given his or her express invitation or
     permission to receive faxes from that company.[^697] They urge the
     Commission to eliminate the EBR exemption, noting that Congress
     initially included in the TCPA an EBR exemption for faxes, but
     removed it from the final version of the statute.[^698]

189. We now reverse our prior conclusion that an established business
     relationship provides companies with the necessary express
     permission to send faxes to their customers. As of the effective
     date of these rules, the EBR will no longer be sufficient to show
     that an individual or business has given their express permission
     to receive unsolicited facsimile advertisements.[^699] The record
     in this proceeding reveals consumers and businesses receive faxes
     they believe they have neither solicited nor given their permission
     to receive. Recipients of these faxed advertisements assume the
     cost of the paper used, the cost associated with the use of the
     facsimile machine, and the costs associated with the time spent
     receiving a facsimile advertisement during which the machine cannot
     be used by its owner to send or receive other facsimile
     transmissions.[^700]

190. The legislative history indicates that one of Congress' primary
     concerns was to protect the public from bearing the costs of
     unwanted advertising. Certain practices were treated differently
     because they impose costs on consumers. For example, under the
     TCPA, calls to wireless phones and numbers for which the called
     party is charged are prohibited in the absence of an emergency or
     without the prior express consent of the called party.[^701]
     Because of the cost shifting involved with fax advertising,
     Congress similarly prohibited unsolicited faxes without the prior
     express permission of the recipient.[^702] Unlike the do-not-call
     list for telemarketing calls, Congress provided no mechanism for
     opting out of unwanted facsimile advertisements. Such an opt-out
     list would require the recipient to possibly bear the cost of the
     initial facsimile and inappropriately place the burden on the
     recipient to contact the sender and request inclusion on a
     "do-not-fax" list.[^703]

191. Instead, Congress determined that companies that wish to fax
     unsolicited advertisements to customers must obtain their express
     permission to do so before transmitting any faxes to them.[^704]
     Advertisers may obtain consent for their faxes through such means
     as direct mail, websites, and interaction with customers in their
     stores. Under the new rules, the permission to send fax
     advertisements must be provided in writing, include the recipient's
     signature and facsimile number, and cannot be in the form of a
     "negative option."[^705] For example, a company that requests a fax
     number on an application form could include a clear statement
     indicating that, by providing such fax number, the individual or
     business agrees to receive facsimile advertisements from that
     company. Such statement, if accompanied by the recipient's
     signature, will constitute the necessary prior express permission
     to send facsimile advertisements to that individual or business. We
     believe that even small businesses may easily obtain permission
     from existing customers who agree to receive faxed advertising,
     when customers patronize their stores or provide their contact
     information. The Commission believes that given the cost shifting
     and interference caused by unsolicited faxes, the interest in
     protecting those who would otherwise be forced to bear the burdens
     of unwanted faxes outweighs the interests of companies that wish to
     advertise via fax.

192. *[Membership in a Trade Association]{.underline}*. In its *1995
     Reconsideration Order*, the Commission determined that mere
     distribution or publication of a telephone facsimile number is not
     the equivalent of prior express permission to receive faxed
     advertisements.[^706] The Commission also found that given the
     variety of circumstances in which such numbers may be distributed
     (business cards, advertisements, directory listings, trade
     journals, or by membership in an association), it was appropriate
     to treat the issue of consent in any complaint regarding
     unsolicited facsimile advertisements on a case-by-case basis.[^707]
     In the *2002 Notice*, we sought comment specifically on the issue
     of membership in a trade association or similar group and asked
     whether publication of one's fax number in an organization's
     directory constitutes an invitation or permission to receive an
     unsolicited fax.[^708] The American Business Media argued that
     those willing to make fax numbers available in directories released
     to the public do so with an expectation that such fax numbers will
     be used for advertising.[^709] Consumer advocates, however, contend
     that publicly listing a fax number is not a broad invitation to
     send commercial faxes.[^710] TOPUC asserted that businesses often
     publish their fax numbers for the convenience of their customers,
     clients and other trade association members, not for the benefit of
     telemarketers.[^711]

193. The Commission agrees that fax numbers are published and
     distributed for a variety of reasons, all of which are usually
     connected to the fax machine owner's business or other personal and
     private interests. The record shows that they are not distributed
     for other companies' advertising purposes. Thus, a company wishing
     to fax ads to consumers whose numbers are listed in a trade
     publication or directory must first obtain the express permission
     of those consumers. Express permission to receive a faxed ad
     requires that the consumer understand that by providing a fax
     number, he or she is agreeing to receive faxed advertisements. We
     believe the burden on companies to obtain express permission is
     warranted when balanced against the need to protect consumers and
     businesses from bearing the advertising costs of those companies.
     Finally, the Commission affirms that facsimile requests for
     permission to transmit faxed ads, including toll-free opt-out
     numbers, impose unacceptable costs on the recipients. This kind of
     "negative option" is contrary to the statutory requirement for
     prior express permission or invitation.[^712]

### Fax Broadcasters

194. The Commission explained in the *2002 Notice* that some fax
     broadcasters, who transmit other entities' advertisements to a
     large number of telephone facsimile machines for a fee, maintain
     lists of facsimile numbers that they use to direct their clients'
     advertisements.[^713] We noted that this practice, among others,
     indicates a fax broadcaster's close involvement in sending unlawful
     fax advertisements and may subject such entities to enforcement
     action under the TCPA and our existing rules. We then sought
     comment on whether the Commission should address specifically in
     the rules the activities of fax broadcasters.[^714] Companies and
     organizations whose members hire fax broadcasters to transmit their
     messages argue that the fax broadcaster should be liable for
     violations of the TCPA's faxing prohibition.[^715] AIADA maintains
     this should be the case, even if the fax broadcaster uses the list
     of fax numbers provided by the company doing the advertising.[^716]
     Nextel argues that liability ought to lie with the party
     controlling the destination of the fax; that fax broadcasters who
     actively compile and market databases of fax numbers are the major
     perpetrators of TCPA fax violations.[^717] Nextel specifically
     urges the Commission to find that companies whose products are
     advertised by independent retailers should not be liable for TCPA
     violations when they have no knowledge of such activities.[^718]
     Fax broadcasters disagree that they should be liable for unlawful
     faxes, maintaining that many of them do not exercise any editorial
     control or discretion over the content of the messages,[^719] and
     do not provide the list of fax numbers to which the ads are
     transmitted.[^720] Many industry as well as consumer commenters
     agree that only those fax broadcasters who are closely involved in
     the transmission of the fax should be subject to liability.[^721]
     Reed asserts that liability should rest with the entity on whose
     behalf a fax is sent; that fax broadcasters are not in a position
     to know firsthand whether, for example, an established business
     relationship exists between the company and consumer.[^722]

195. The Commission's rulings clearly indicate that a fax broadcaster's
     exemption from liability is based on the type of activities it
     undertakes, and only exists "\[i\]n the absence of 'a high degree
     of involvement or actual notice of an illegal use and failure to
     take steps to prevent such transmissions.'"[^723] The Commission
     believes that, based on the record and our own enforcement
     experience, addressing the activities of fax broadcasters will
     better inform both consumers and businesses about the prohibition
     on unsolicited fax advertising. The Commission has determined to
     amend the rules to explicitly state that a fax broadcaster will be
     liable for an unsolicited fax if there is a high degree of
     involvement or actual notice on the part of the broadcaster. The
     new rules provide that if the fax broadcaster supplies the fax
     numbers used to transmit the advertisement, the fax broadcaster
     will be liable for any unsolicited advertisement faxed to consumers
     and businesses without their prior express invitation or
     permission. We agree, however, that if the company whose products
     are advertised has supplied the list of fax numbers, that company
     is in the best position to ensure that recipients have consented to
     receive the faxes and should be liable for violations of the
     prohibition. Therefore, the fax broadcaster will not be responsible
     for the ads, in the absence of any other close involvement, such as
     determining the content of the faxed message.[^724] In such
     circumstances where both the fax broadcaster and advertiser
     demonstrate a high degree of involvement, they may be held jointly
     and severally liable for violations of the unsolicited facsimile
     provisions. In adopting this rule, the Commission focuses on the
     nature of an entity's activity rather than on any label that the
     entity may claim. We believe the rule will better inform the
     business community about the prohibition on unsolicited fax
     advertising and the liability that attaches to such faxing. And, it
     will better serve consumers who are often confused about which
     party is responsible for unlawful fax advertising. For the same
     reasons, the new rules define "facsimile broadcaster" to mean a
     person or entity that transmits messages to telephone facsimile
     machines on behalf of another person or entity for a fee.[^725]

196. Some commenters ask the Commission to clarify the extent of common
     carriers' liability for the transmission of unsolicited
     faxes.[^726] Cox specifically urges the Commission to distinguish
     the obligations of fax broadcasters from "traditional common
     carriers."[^727] As noted above, the Commission has stated that
     "\[i\]n the absence of 'a high degree of involvement or actual
     notice of an illegal use and failure to take steps to prevent such
     transmissions,' common carriers will not be held liable for the
     transmission of a prohibited facsimile message."[^728] We reiterate
     here that if a common carrier is merely providing the network over
     which a subscriber (a fax broadcaster or other individual,
     business, or entity) sends an unsolicited facsimile message, that
     common carrier will not be liable for the facsimile.

197. Nextel urges the Commission to clarify that section 217 of the
     Communications Act does not impose a higher level of liability on
     common carriers than on other entities for violations of the
     TCPA.[^729] Section 217 provides that " \[i\]n construing and
     enforcing the provisions of this Act, the act, omission, or failure
     of any officer, agent, or other person acting for or employed by
     any common carrier or user, acting within the scope of his
     employment, shall in every case be also deemed to be the act,
     omission, or failure of such carrier or user as well as that of the
     person."[^730] The Commission declines to address the scope of
     section 217 in this rulemaking, which was not raised in the *2002
     Notice* or in subsequent notices in this proceeding*.*

### Fax Servers

198. The TCPA makes it unlawful for any person to use any telephone
     facsimile machine, computer, or other device to send an unsolicited
     advertisement to a telephone facsimile machine.[^731] The TCPA
     defines the term "telephone facsimile machine" to mean "equipment
     which has the capacity (A) to transcribe text or images, or both,
     from paper into an electronic signal and to transmit that signal
     over a regular telephone line, or (B) to transcribe text or images
     (or both) from an electronic signal received over a regular
     telephone line onto paper."[^732] The Commission sought comment on
     any developing technologies, such as computerized fax servers, that
     might warrant revisiting these rules.[^733]

199. Commenters who addressed this issue were divided on whether fax
     servers should be subject to the unsolicited facsimile provisions.
     Some industry representatives urged the Commission to clarify that
     the TCPA does not prohibit the transmission of unsolicited fax
     advertisements to fax servers and personal computers because these
     transmissions are not sent to a "telephone facsimile machine," as
     defined in the statute.[^734] Nextel maintains that such faxes do
     not implicate the harms Congress sought to redress in the TCPA, as
     they are not reduced to paper and can be deleted from one's inbox
     without being opened or examined.[^735] Other commenters disagree,
     noting that there are other costs associated with faxes sent to
     computers and fax servers.[^736] They note that the TPCA only
     requires that the equipment have the *capacity* to transcribe text
     or messages onto paper,[^737] and that computer fax servers and
     personal computers have that capacity.

200. We conclude that faxes sent to personal computers equipped with, or
     attached to, modems and to computerized fax servers are subject to
     the TCPA's prohibition on unsolicited faxes. However, we clarify
     that the prohibition does not extend to facsimile messages sent as
     email over the Internet. The record confirms that a conventional
     stand-alone telephone facsimile machine is just one device used for
     this purpose; that developing technologies permit one to send and
     receive facsimile messages in a myriad of ways. Today, a modem
     attached to a personal computer allows one to transmit and receive
     electronic documents as faxes. "Fax servers" enable multiple
     desktops to send and receive faxes from the same or shared
     telephony lines.[^738]

201. The TCPA's definition of "telephone facsimile machine" broadly
     applies to any equipment that has the capacity to send or receive
     text or images. The purpose of the requirement that a "telephone
     facsimile machine" have the "capacity to transcribe text or images"
     is to ensure that the prohibition on unsolicited faxing not be
     circumvented. Congress could not have intended to allow easy
     circumvention of its prohibition when faxes are (intentionally or
     not) transmitted to personal computers and fax servers, rather than
     to traditional stand-alone facsimile machines. As the House Report
     accompanying the TCPA explained, "facsimile machines are designed
     to accept, process and print all messages which arrive over their
     dedicated lines. The fax advertiser takes advantage of this basic
     design by sending advertisements to available fax numbers, knowing
     that it will be received and printed by the recipient's
     machine."[^739] However, Congress also took account of the
     "interference, interruptions, and expense" resulting from junk
     faxes, emphasizing in the same Report that "\[i\]n addition to the
     costs associated with the fax advertisements, when a facsimile
     machine is receiving a fax, it may require several minutes or more
     to process and print the advertisement. During that time, the fax
     machine is unable to process actual business communications."[^740]

202. Facsimile messages sent to a computer or fax server may shift the
     advertising costs of paper and toner to the recipient, if they are
     printed. They may also tie up lines and printers so that the
     recipients' requested faxes are not timely received.[^741] Such
     faxes may increase labor costs for businesses, whose employees must
     monitor faxes to determine which ones are junk faxes and which are
     related to their company's business. Finally, because a sender of a
     facsimile message has no way to determine whether it is being sent
     to a number associated with a stand-alone fax machine or to one
     associated with a personal computer or fax server, it would make
     little sense to apply different rules based on the device that
     ultimately received it.

### Identification Requirements

203. The TCPA and Commission rules require that any message sent via a
     telephone facsimile machine contain the date and time it is sent
     and an identification of the business, other entity, or individual
     sending the message and the telephone number of the sending machine
     or of such business, other entity, or individual.[^742] In the
     *2002 Notice*, the Commission asked whether these rules have been
     effective at protecting consumers' rights to enforce the
     TCPA.[^743] The Commission determined in its *1997 Reconsideration
     Order* that a facsimile broadcast service must ensure that the
     identifying information of the entity on whose behalf the provider
     sent messages appear on facsimile messages. In its discussion, the
     Commission clarified that the sender of a facsimile message is the
     creator of the content of the message, finding that Section
     227(d)(1) of the TCPA mandates that a facsimile include the
     identification of the business, other entity, or individual
     creating or originating a facsimile message, and not the entity
     that transmits the message.[^744] The Commission believes that if a
     fax broadcaster is responsible for the content of the message or
     for determining the destination of the message (*i.e.,* supplying
     the list of facsimile numbers to which the faxes are sent), it
     should be identified on the facsimile, along with the entity whose
     products are advertised.[^745] Therefore, we amend the rules to
     require any fax broadcaster that demonstrates a high degree of
     involvement in the transmission of such facsimile message to be
     identified on the facsimile, along with the identification of the
     sender.[^746] This will permit consumers to hold fax broadcasters
     accountable for unlawful fax advertisements when there is a high
     degree of involvement on the part of the fax broadcaster.[^747]
     Commenters suggested the Commission clarify what constitutes an
     adequate identification header.[^748] Consistent with our amended
     identification rules for telemarketing calls, senders of fax
     advertisements will be required under the new rules to use the name
     under which they are officially registered to conduct
     business.[^749] Use of a "d/b/a" ("doing business as") or other
     more widely recognized name is permissible; however, the official
     identification of the business, as filed with state corporate
     registration offices or comparable regulatory entities, must be
     included, at a minimum.

# Private Right of Action 

## Background

204. The TCPA is a unique statute in that it provides consumers with two
     private rights of action for violations of the TCPA rules. One
     provision permits a consumer to file suit immediately in state
     court if a caller violates the TCPA's prohibitions on the use of
     automatic dialing systems, artificial or prerecorded voice
     messages, and unsolicited facsimile advertisements.[^750] A
     separate private right of action permits a consumer to file suit in
     state court if he or she has received more than one telephone call
     within any 12-month period by or on behalf of the same company in
     violation of the guidelines for making telephone
     solicitations.[^751] Based on inquiries received about the private
     right of action, the Commission asked whether we should clarify
     whether a consumer may file suit after receiving one call from a
     telemarketer who, for example, fails to properly identify himself
     or makes a call outside the time of day restrictions.[^752]

205. Industry commenters argue that the statutory language is clear;
     that only a person who has received more than one telephone call
     that violates the telephone solicitation rules within any 12-month
     period may file suit under the TCPA's private right of
     action.[^753] Consumers and consumer advocates were split on the
     issue. Some maintained that a consumer should be permitted to
     pursue a private right of action for a telemarketer's first
     offense;[^754] others acknowledged that the statute does not permit
     a cause of action for the first time a telemarketer violates the
     telephone solicitation rules.[^755] Several industry commenters
     point out that they have been named as defendants in class action
     lawsuits under the TCPA in state courts.[^756] They urge the
     Commission to determine that the TCPA's private right of action
     does not contemplate or permit class action lawsuits.[^757] Some
     consumer commenters and plaintiffs' attorneys who have filed class
     action suits argue that foreclosing class actions would severely
     handicap the effectiveness of the TCPA and consumers' ability to
     enforce its provisions. They also contend that the FCC is not
     authorized to interfere with state courts' certification of class
     actions.[^758]

## Discussion

206. The Commission declines to make any determination about the
     specific contours of the TCPA's private right of action. Congress
     provided consumers with a private right of action, "if otherwise
     permitted by the laws or rules of court of a State."[^759] This
     language suggests that Congress contemplated that such legal action
     was a matter for consumers to pursue in appropriate state courts,
     subject to those courts' rules. The Commission believes it is for
     Congress, not the Commission, to either clarify or limit this right
     of action.

# INFORMAL COMPLAINT RULES

207. In the *2002 Notice*, the Commission noted that it had released
     another Notice of Proposed Rulemaking in February of 2002, seeking
     comment on whether to extend the informal complaint rules to
     entities other than common carriers.[^760] We sought comment in
     this proceeding on whether the Commission should amend these
     informal complaint rules to apply to telemarketers. We will review
     this issue as part of the Informal Complaints proceeding. All
     comments filed in this proceeding that address the applicability of
     the informal complaint rules to telemarketers will be incorporated
     into CI Docket No. 02-32.

# Time of Day Restrictions

208. Commission rules restrict telephone solicitations between the hours
     of 8:00 a.m. and 9:00 p.m. local time at the called party's
     location.[^761] As part of our review of the TCPA rules, we sought
     comment on how effective these time restrictions have been at
     limiting objectionable solicitation calls.[^762] The Commission
     also asked whether more restrictive calling times could work in
     conjunction with a national registry to better protect consumers
     from telephone solicitations to which they object.

209. Industry members that commented on the calling time restrictions
     unanimously asserted that the current calling times should be
     retained.[^763] Some explained that any restrictions on calls made
     during the early evening hours, in particular, would interfere with
     telemarketers' ability to reach their customers.[^764] Consumers,
     on the other hand, urged the Commission to adopt tighter
     restrictions on the times that telemarketers may call them. Some
     object to calls at the end of the day and during the dinner
     hour;[^765] others prefer that telemarketers not be able to begin
     calling until later in the morning.[^766] Some suggest the calling
     times should parallel local noise ordinances.[^767] EPIC advocated
     allowing consumers to specify the hours they wish to receive
     calls.[^768]

210. The Commission declines to revise the restrictions on calling
     times. Instead, we retain the current calling times, which are
     consistent with the FTC's rules.[^769] We believe the current
     calling times strike the appropriate balance between protecting
     consumer privacy and not unduly burdening industry in their efforts
     to conduct legitimate telemarketing. We also believe that
     Commission rules that diverge from the FTC's calling restrictions
     will lead to confusion for consumers. Moreover, consumers who want
     to block unwanted calls during certain times will now have the
     option of placing their telephone numbers on the national
     do-not-call registry. They will have the additional option of
     giving express verifiable authorization to only those companies
     they wish to hear from. The Commission declines at this time to
     require companies to adhere to consumers' calling preferences,
     including "acceptable" calling times.[^770] We believe that the
     costs of monitoring calling times for individual consumers could be
     substantial for many companies, particularly small businesses. The
     Commission may revisit this option in the future.

# Enforcement priorities

211. TCPA enforcement has been a Commission priority over the past
     several years,[^771] and we intend that it remain so. In guiding
     our future enforcement plans, we recognize that the FTC's recent
     rule changes expand that agency's regulation of telemarketing
     activities and require coordination to ensure consistent and
     non-redundant federal enforcement in this area. Most notably, the
     FTC's adoption of a nationwide do-not-call registry, the related
     Do-Not-Call Act, and finally our adoption here of requirements that
     maximize consistency with those adopted by the FTC create an
     overlap in federal regulations governing major telemarketing
     activities.[^772] We hereby direct Commission staff to negotiate
     with FTC staff a Memorandum of Understanding between the respective
     staffs to achieve an efficient and effective enforcement strategy
     that will promote compliance with federal telemarketing
     regulations, consistent with the guidelines set forth below.

212. The FCC's jurisdiction over telemarketing is significantly broader
     than the FTC's. First, as noted above, the FTC does not have
     authority over telemarketing calls made by in-house employees of
     common carriers, banks, credit unions, savings and loans, insurance
     companies, and airlines. In addition, the FTC's telemarketing rules
     pertain only to interstate transmissions. In contrast, the FCC's
     telemarketing rules apply without exception to any entity engaged
     in any of the telemarketing activities targeted by the TCPA and the
     Commission's related rules, including those that involve purely
     intrastate activities.[^773] Given the substantial gaps in the
     FTC's authority over the full range of telemarketing activities, we
     contemplate that our enforcement staff will focus particularly on
     those activities and entities that fall outside the FTC's reach --
     airlines, banks, credit unions, savings and loans, insurance
     companies, and common carriers, as well as intrastate transmissions
     by any entity.

213. Nevertheless, we do not contemplate Commission enforcement that
     targets only those activities, entities, or transmissions that are
     outside the FTC's jurisdiction. The TCPA creates a statutory
     expectation for FCC enforcement in the telemarketing area.[^774]
     Moreover, the TCPA's detailed standards pertaining to do-not-call
     matters evince Congressional intent that the FCC assume a prominent
     role in federal regulation of this aspect of telemarketing, a
     mandate that is not altered by the Do-Not-Call Act. Accordingly,
     even with the FTC's new do-not-call regulations, including its
     administration of a national do-not-call registry, we emphasize
     that the Commission must stand ready to enforce each of our
     telemarketing rules in appropriate cases. For reasons of efficiency
     and fairness, our staff will work closely with the FTC to avoid
     unnecessarily duplicative enforcement actions.

214. In determining enforcement priorities under the new telemarketing
     rules, we contemplate that the Enforcement Bureau will continue its
     policy of reviewing FCC and FTC consumer complaint data and
     conferring with appropriate state and federal agencies to detect
     both egregious violations and patterns of violations, and will act
     accordingly.[^775] The Enforcement Bureau has in place effective
     procedures to review aggregate complaint information to determine
     the general areas that merit enforcement actions, and to identify
     both particular violators and the individual consumers who may be
     able to assist the staff in pursuing enforcement actions against
     such violators.[^776] Enforcement action could include, for
     example, forfeiture proceedings under section 503(b),[^777] cease
     and desist proceedings under section 312(c), injunctions under
     section 401, and revocation of common carrier section 214 operating
     authority.

#  Other Issues

## Access to TCPA Inquiries and Complaints

215. The Commission stated that the *2002 Notice* was "prompted, in
     part, by the increasing number and variety of inquiries and
     complaints involving our rules on telemarketing and unsolicited fax
     advertisements."[^778] A few commenters maintain that the
     Commission should not consider final rules until parties have had
     an opportunity to analyze the consumer complaints referenced in the
     *2002 Notice*.[^779] Other commenters contend that the number of
     complaints received by the Commission does not necessarily
     demonstrate a problem that demands government intervention.[^780]
     The ATA filed a Freedom of Information Act (FOIA) request with the
     Commission on October 16, 2002, seeking access to the TCPA-related
     informal complaints.[^781] The FOIA generally provides that any
     person has a right to obtain access to federal agency records,
     subject to enumerated exemptions from disclosure.[^782] The FOIA
     requirements do not apply to records that contain "personnel and
     medical files and similar files the disclosure of which would
     constitute a clearly unwarranted invasion of personal
     privacy."[^783] Many of the complaints sought by the ATA contain
     personal private information. In addition, the complaints are part
     of a system of records subject to the Privacy Act.[^784] For these
     reasons, the Commission agreed to release the complaints on a
     rolling basis only after personal information was redacted.[^785]
     In response to ATA's FOIA request, the Commission has thus far
     provided approximately 2,420 redacted complaints.[^786]

216. We agree with commenters that the increasing number of inquiries
     and complaints about telemarketing practices should not form the
     basis upon which we revise or adopt new rules under the TCPA.[^787]
     Rather, such information can be considered in determining whether
     to seek comment on the effectiveness of any of its rules.[^788] We
     note that, even in the absence of any such complaints, the
     Commission is required by the Do-Not-Call Act to complete the TCPA
     rulemaking commenced last year. We disagree with commenters who
     suggest that parties must have access to all of the complaints
     referenced in the NPRM in order to be able to have a meaningful
     opportunity to participate in this proceeding.[^789] It is not the
     existence of the complaints, or the number of complaints, that led
     the Commission to institute this proceeding to consider revision of
     its TCPA rules. Rather, our TCPA rules have been in place for more
     than ten years. We opened this proceeding to determine "whether the
     Commission's rules need to be revised in order to more effectively
     carry out Congress's directives in the TCPA."[^790] In any event,
     since September 2002, consumers, industry, and state governments
     have filed over 6,000 comments in this proceeding, during which
     time the Commission extended the comment periods twice and released
     a *Further Notice* in order to ensure that parties had ample
     opportunity to comment on possible FCC action. The substantial
     record compiled in this proceeding, along with the Commission's own
     enforcement experience, provides the basis for the actions we take
     here today.

## Reports to Congress

217. The Do-Not-Call Act requires the Commission to transmit reports to
     Congress within 45 days after the promulgation of final rules in
     this proceeding, and annually thereafter.[^791] By this Order, the
     Commission delegates its authority to the Chief, Consumer &
     Governmental Affairs Bureau, to issue all such reports.

# Procedural issues

## Regulatory Flexibility Act Analysis

218. Pursuant to the Regulatory Flexibility Act of 1980, as
     amended,[^792] the Commission's Final Regulatory Flexibility
     Analysis in this Order is attached as Appendix B.

## Paperwork Reduction Act Analysis

219. This Order contains modified information collections subject to the
     Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. It will
     be submitted to the Office of Management and Budget (OMB) for
     review under § 3507(d) of the PRA. OMB, the general public, and
     other Federal agencies are invited to comment on the modified
     information collections contained in this proceeding.

## Late-Filed Comments

220. We note that there were comments filed late in this proceeding. In
     the interest of having as complete and accurate a record as
     possible, we will accept late-filed comments and waive the
     requirements of 47 C.F.R. § 1.46(b).

## Materials in Accessible Formats

221. To request materials in accessible formats for people with
     disabilities (braille, large print, electronic files, audio
     format), send an email to
     [[fcc504@fcc.gov]{.underline}](mailto:fcc504@fcc.gov) or call the
     Consumer & Governmental Affairs Bureau at (202) 418-0531
     (voice), (202) 418-7365 (TTY). This *Report and Order* can also be
     downloaded in Text and ASCII formats at:
     [http://www.fcc.gov/cgb/policy/telemarketing.html]{.underline}.

# Ordering clauses

222. Accordingly, IT IS ORDERED that, pursuant to the authority
     contained in Sections 1-4, 222, 227, and 303(r) of the
     Communications Act of 1934, as amended; 47 U.S.C. §§ 151-154, 222
     and 227; and 47 C.F.R. § 64.1200 of the Commission's rules, and the
     Do-Not-Call Implementation Act, Pub. L. No. 108-10, 117 Stat. 557,
     the Report and Order in CG Docket No. 02-278 IS ADOPTED, and Parts
     64 and 68 of the Commission's rules, 47 C.F.R. Parts 64.1200,
     64.1601, and 68.318, are amended as set forth in Appendix A. The
     requirements of this Report and Order shall become effective 30
     days after publication of a summary thereof in the Federal
     Register, with the following exceptions. As discussed herein, the
     national do-not-call rules at 47 C.F.R. § 64.1200(c)(2) will go
     into effect on October 1, 2003; the call abandonment rules at 47
     C.F.R. §§ 64.1200(a)(5) and (6) will become effective on October 1,
     2003; and the caller ID requirements at 47 C.F.R. § 64.1601(e) will
     go into effect on January 29, 2004. The amendments to the rules in
     § 64.1200 that contain information collection requirements under
     the PRA are not effective until approved by OMB. The Commission
     will publish a document in the Federal Register announcing the
     effective date of these rules.

223. IT IS FURTHER ORDERED that the comments addressing the
     applicability of the informal complaint rules to telemarketers ARE
     INCORPORATED into CI Docket 02-32.

224. IT IS FURTHER ORDERED that the Commission's Consumer & Governmental
     Affairs Bureau shall have authority to issue any reports to
     Congress as required by the Do-Not-Call Implementation Act.

225. IT IS FURTHER ORDERED that the Commission's Consumer & Governmental
     Affairs Bureau, Reference Information Center, SHALL SEND a copy of
     this Report and Order, including the Final Regulatory Flexibility
     Analysis, to the Chief Counsel for Advocacy of the Small Business
     Administration.

     FEDERAL COMMUNICATIONS COMMISSION

     Marlene H. Dortch

     Secretary

**Appendix A**

**[Final Rules]{.underline}**

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

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

1\. Authority: 47 U.S.C. § 227.

\* \* \* \* \*

2\. Subpart L is amended by revising the Subpart Heading to read as
follows:

**Subpart L -- Restrictions on Telemarketing and Telephone
Solicitation**

\* \* \* \* \*

3\. Section 64.1200 is revised to read as follows:

[§ 64.1200 Delivery restrictions]{.underline}.

\(a\) No person or entity may:

\(1\) Initiate any telephone call (other than a call made for emergency
purposes or made with the prior express consent of the called party)
using an automatic telephone dialing system or an artificial or
prerecorded voice,

\(i\) To any emergency telephone line, including any 911 line and any
emergency line of a hospital, medical physician or service office,
health care facility, poison control center, or fire protection or law
enforcement agency;

\(ii\) To the telephone line of any guest room or patient room of a
hospital, health care facility, elderly home, or similar establishment;
or

\(iii\) To any telephone number assigned to a paging service, cellular
telephone service, specialized mobile radio service, or other radio
common carrier service, or any service for which the called party is
charged for the call;

\(2\) Initiate any telephone call to any residential line using an
artificial or prerecorded voice to deliver a message without the prior
express consent of the called party, unless the call:

\(i\) Is made for emergency purposes,

\(ii\) Is not made for a commercial purpose,

\(iii\) Is made for a commercial purpose but does not include or
introduce an unsolicited advertisement or constitute a telephone
solicitation,

\(iv\) Is made to any person with whom the caller has an established
business relationship at the time the call is made, or

\(v\) Is made by or on behalf of a tax-exempt nonprofit organization.

\(3\) Use a telephone facsimile machine, computer, or other device to
send an unsolicited advertisement to a telephone facsimile machine.

\(i\) For purposes of paragraph (a)(3) of this section, a facsimile
advertisement is not "unsolicited" if the recipient has granted the
sender prior express invitation or permission to deliver the
advertisement, as evidenced by a signed, written statement that includes
the facsimile number to which any advertisements may be sent and clearly
indicates the recipient's consent to receive such facsimile
advertisements from the sender.

\(ii\) A facsimile broadcaster will be liable for violations of
paragraph (a)(3) of this section if it demonstrates a high degree of
involvement in, or actual notice of, the unlawful activity and fails to
take steps to prevent such facsimile transmissions.

\(4\) Use an automatic telephone dialing system in such a way that two
or more telephone lines of a multi-line business are engaged
simultaneously.

\(5\) Disconnect an unanswered telemarketing call prior to at least 15
seconds or four (4) rings.

\(6\) Abandon more than three percent of all telemarketing calls that
are answered live by a person, measured over a 30-day period. A call is
"abandoned" if it is not connected to a live sales representative within
two (2) seconds of the called person's completed greeting. Whenever a
sales representative is not available to speak with the person answering
the call, that person must receive, within two (2) seconds after the
called person's completed greeting, a prerecorded identification message
that states only the name and telephone number of the business, entity,
or individual on whose behalf the call was placed, and that the call was
for "telemarketing purposes." The telephone number so provided must
permit any individual to make a do-not-call request during regular
business hours for the duration of the telemarketing campaign. The
telephone number may not be a 900 number or any other number for which
charges exceed local or long distance transmission charges. The seller
or telemarketer must maintain records establishing compliance with
paragraph (a)(6) of this section.

\(i\) A call for telemarketing purposes that delivers an artificial or
prerecorded voice message to a residential telephone line that is
assigned to a person who either has granted prior express consent for
the call to be made or has an established business relationship with the
caller shall not be considered an abandoned call if the message begins
within two (2) seconds of the called person's completed greeting.

\(ii\) Calls made by or on behalf of tax-exempt nonprofit organizations
are not covered by paragraph (a)(6) of this section.

\(7\) Use any technology to dial any telephone number for the purpose of
determining whether the line is a facsimile or voice line.

\(b\) All artificial or prerecorded telephone messages shall:

\(1\) At the beginning of the message, state clearly the identity of the
business, individual, or other entity that is responsible for initiating
the call. If a business is responsible for initiating the call, the name
under which the entity is registered to conduct business with the State
Corporation Commission (or comparable regulatory authority) must be
stated, and

\(2\) During or after the message, state clearly the telephone number
(other than that of the autodialer or prerecorded message player that
placed the call) of such business, other entity, or individual. The
telephone number provided may not be a 900 number or any other number
for which charges exceed local or long distance transmission charges.
For telemarketing messages to residential telephone subscribers, such
telephone number must permit any individual to make a do-not-call
request during regular business hours for the duration of the
telemarketing campaign.

\(c\) No person or entity shall initiate any telephone solicitation, as
defined in paragraph (f)(9) of this section, to:

\(1\) Any residential telephone subscriber before the hour of 8 a.m. or
after 9 p.m. (local time at the called party's location), or

\(2\) 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. Any person or entity making telephone solicitations
(or on whose behalf telephone solicitations are made) will not be liable
for violating this requirement if:

\(i\) it can demonstrate that the violation is the result of error and
that as part of its routine business practice, it meets the following
standards:

\(A\) [Written procedures]{.underline}. It has established and
implemented written procedures to comply with the national do-not-call
rules;

\(B\) [Training of personnel]{.underline}. It has trained its personnel,
and any entity assisting in its compliance, in procedures established
pursuant to the national do-not-call rules;

\(C\) [Recording]{.underline}. It has maintained and recorded a list of
telephone numbers that the seller may not contact;

\(D\) [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 three months prior to the
date any call is made, and maintains records documenting this process;
and

\(E\) [Purchasing the national do-not-call database]{.underline}. It
uses a process to ensure that it does not sell, rent, lease, purchase or
use the national do-not-call database, or any part thereof, for any
purpose except compliance with this section and any such state or
federal law to prevent telephone solicitations to telephone numbers
registered on the national database. It purchases access to the relevant
do-not-call data from the administrator of the national database and
does not participate in any arrangement to share the cost of accessing
the national database, including any arrangement with telemarketers who
may not divide the costs to access the national database among various
client sellers; or

\(ii\) It has obtained the subscriber's prior express invitation or
permission. Such permission must be evidenced by a signed, written
agreement between the consumer and seller which states that the consumer
agrees to be contacted by this seller and includes the telephone number
to which the calls may be placed; or

\(iii\) The telemarketer making the call has a personal relationship
with the recipient of the call.

\(d\) No person or entity shall initiate any call for telemarketing
purposes to a residential telephone subscriber unless such person or
entity has instituted procedures for maintaining a list of persons who
request not to receive telemarketing calls made by or on behalf of that
person or entity. The procedures instituted must meet the following
minimum standards:

\(1\) [Written policy]{.underline}. Persons or entities making calls for
telemarketing purposes must have a written policy, available upon
demand, for maintaining a do-not-call list.

\(2\) [Training of personnel engaged in telemarketing]{.underline}.
Personnel engaged in any aspect of telemarketing must be informed and
trained in the existence and use of the do-not-call list.

\(3\) [Recording, disclosure of do-not-call requests]{.underline}. If a
person or entity making a call for telemarketing purposes (or on whose
behalf such a call 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, if provided, and telephone number on the do-not-call list at the
time the request is made. Persons or entities making calls for
telemarketing purposes (or on whose behalf such calls are made) must
honor a residential subscriber's do-not-call request within a reasonable
time from the date such request is made. This period may not exceed
thirty days from the date of such request. If such requests are recorded
or maintained by a party other than the person or entity on whose behalf
the telemarketing call is made, the person or entity on whose behalf the
telemarketing call is made will be liable for any failures to honor the
do-not-call request. A person or entity making a call for telemarketing
purposes must obtain a consumer's prior express permission to share or
forward the consumer's request not to be called to a party other than
the person or entity on whose behalf a telemarketing call is made or an
affiliated entity.

\(4\) [Identification of sellers and telemarketers]{.underline}. A
person or entity making a call for telemarketing purposes must provide
the called party with the name of the individual caller, the name of the
person or entity on whose behalf the call is being made, and a telephone
number or address at which the person or entity may be contacted. The
telephone number provided may not be a 900 number or any other number
for which charges exceed local or long distance transmission charges.

\(5\) [Affiliated persons or entities]{.underline}. In the absence of a
specific request by the subscriber to the contrary, a residential
subscriber's do-not-call request shall apply to the particular business
entity making the call (or on whose behalf a call is made), and will not
apply to affiliated entities unless the consumer reasonably would expect
them to be included given the identification of the caller and the
product being advertised.

\(6\) [Maintenance of do-not-call lists]{.underline}. A person or entity
making calls for telemarketing purposes must maintain a record of a
caller's request not to receive further telemarketing calls. A
do-not-call request must be honored for 5 years from the time the
request is made.

\(7\) Tax-exempt nonprofit organizations are not required to comply with
64.1200(d).

\(e\) The rules set forth in sections 64.1200(c) and 64.1200(d) are
applicable to any person or entity making telephone solicitations or
telemarketing calls to wireless telephone numbers to the extent
described in the Commission's Report and Order, CG Docket No. 02-278,
FCC 03-153, "Rules and Regulations Implementing the Telephone Consumer
Protection Act of 1991."

\(f\) As used in this section:

\(1\) The terms [automatic telephone dialing system]{.underline} and
[autodialer]{.underline} mean equipment which has the capacity to store
or produce telephone numbers to be called using a random or sequential
number generator and to dial such numbers.

\(2\) The term [emergency purposes]{.underline} means calls made
necessary in any situation affecting the health and safety of consumers.

\(3\) The term [established business relationship]{.underline} means a
prior or existing relationship formed by a voluntary two-way
communication between a person or entity and a residential subscriber
with or without an exchange of consideration, on the basis of the
subscriber's purchase or transaction with the entity within the eighteen
(18) months immediately preceding the date of the telephone call or on
the basis of the subscriber's inquiry or application regarding products
or services offered by the entity within the three months immediately
preceding the date of the call, which relationship has not been
previously terminated by either party.

\(i\) The subscriber's seller-specific do-not-call request, as set forth
in paragraph (d)(3) of this section, terminates an established business
relationship for purposes of telemarketing and telephone solicitation
even if the subscriber continues to do business with the seller.

\(ii\) The subscriber's established business relationship with a
particular business entity does not extend to affiliated entities unless
the subscriber would reasonably expect them to be included given the
nature and type of goods or services offered by the affiliate and the
identity of the affiliate.

\(4\) The term [facsimile broadcaster]{.underline} means a person or
entity that transmits messages to telephone facsimile machines on behalf
of another person or entity for a fee.

\(5\) The term [seller]{.underline} means the person or entity on whose
behalf a telephone call or message is initiated for the purpose of
encouraging the purchase or rental of, or investment in, property,
goods, or services, which is transmitted to any person.

\(6\) The term [telemarketer]{.underline} means the person or entity
that initiates 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.

\(7\) The term [telemarketing]{.underline} means the initiation of a
telephone call or message for the purpose of encouraging the purchase or
rental of, or investment in, property, goods, or services, which is
transmitted to any person.

\(8\) The term [telephone facsimile machine]{.underline} means equipment
which has the capacity to transcribe text or images, or both, from paper
into an electronic signal and to transmit that signal over a regular
telephone line, or to transcribe text or images (or both) from an
electronic signal received over a regular telephone line onto paper.

\(9\) The term [telephone solicitation]{.underline} means the initiation
of a telephone call or message for the purpose of encouraging the
purchase or rental of, or investment in, property, goods, or services,
which is transmitted to any person, but such term does not include a
call or message:

\(i\) To any person with that person's prior express invitation or
permission.

\(ii\) To any person with whom the caller has an established business
relationship; or

\(iii\) By or on behalf of a tax-exempt nonprofit organization.

\(10\) The term [unsolicited advertisement]{.underline} means any
material advertising the commercial availability or quality of any
property, goods, or services which is transmitted to any person without
that person's prior express invitation or permission.

\(11\) The term [personal relationship]{.underline} means any family
member, friend, or acquaintance of the telemarketer making the call.

\(g\) Beginning January 1, 2004, common carriers shall:

\(1\) When providing local exchange service, provide an annual notice,
via an insert in the subscriber's bill, of the right to give or revoke a
notification of an objection to receiving telephone solicitations
pursuant to the national do-not-call database maintained by the federal
government and the methods by which such rights may be exercised by the
subscriber. The notice must be clear and conspicuous and include, at a
minimum, the Internet address and toll-free number that residential
telephone subscribers may use to register on the national database.

\(2\) When providing service to any person or entity for the purpose of
making telephone solicitations, make a one-time notification to such
person or entity of the national do-not-call requirements, including, at
a minimum, citation to 47 C.F.R. § 64.1200 and 16 C.F.R. Part 310.
Failure to receive such notification will not serve as a defense to any
person or entity making telephone solicitations from violations of this
section.

\(h\) The administrator of the national do-not-call registry that is
maintained by the federal government shall make the telephone numbers in
the database available to the States so that a State may use the
telephone numbers that relate to such State as part of any database,
list or listing system maintained by such State for the regulation of
telephone solicitations.

[§ 64.1601 Delivery requirements and privacy restrictions.]{.underline}

4\. Section 64.1601 is amended by adding paragraph (e) to read as
follows:

\* \* \* \* \*

\(e\) Any person or entity that engages in telemarketing, as defined in
section 64.1200(f)(7) must transmit caller identification information.

\(i\) For purposes of this paragraph, caller identification information
must include either CPN or ANI, and, when available by the
telemarketer's carrier, the name of the telemarketer. It shall not be a
violation of this paragraph to substitute (for the name and phone number
used in, or billed for, making the call) the name of the seller on
behalf of which the telemarketing call is placed and the seller's
customer service telephone number. The telephone number so provided must
permit any individual to make a do-not-call request during regular
business hours.

\(ii\) Any person or entity that engages in telemarketing is prohibited
from blocking the transmission of caller identification information.

\(iii\) Tax-exempt nonprofit organizations are not required to comply
with this paragraph.

[§ 68.318 Additional limitations.]{.underline}

5\. Section 68.318 is amended by revising (d) to read as follows:

**\* \* \* \* \***

\(d\) [Telephone facsimile machines; Identification of the sender of the
message]{.underline}*.* It shall be unlawful for person within the
United States to use a computer or other electronic device to send any
message via a telephone facsimile machine unless such person clearly
marks, in a margin at the top or bottom of each transmitted page of the
message or on the first page of the transmission, the date and time it
is sent and an identification of the business, other entity, or
individual sending the message and the telephone number of the sending
machine or of such business, other entity, or individual. If a facsimile
broadcaster demonstrates a high degree of involvement in the sender's
facsimile messages, such as supplying the numbers to which a message is
sent, that broadcaster's name, under which it is registered to conduct
business with the State Corporation Commission (or comparable regulatory
authority), must be identified on the facsimile, along with the sender's
name. Telephone facsimile machines manufactured on and after December
20, 1992, must clearly mark such identifying information on each
transmitted page.

\* \* \* \* \*

**Appendix B**

# [Final Regulatory Flexibility Analysis]{.underline} {#final-regulatory-flexibility-analysis .unnumbered}

1.  As required by the Regulatory Flexibility Act of 1980, as amended
    (RFA),[^793] an Initial Regulatory Flexibility Analysis (IRFA) was
    incorporated in the Notice of Proposed Rulemaking and Memorandum
    Opinion and Order[^794] (*2002 Notice*) released by the Federal
    Communications Commission (Commission) on September 18, 2002. The
    Commission sought written public comments on the proposals contained
    in the *2002 Notice*, including comments on the IRFA. On March 25,
    2003, the Commission released a Further Notice of Proposed
    Rulemaking (Further Notice), seeking comments on the requirements
    contained in the Do-Not-Call Implementation Act (Do-Not-Call
    Act),[^795] which was signed into law on March 11, 2003.[^796] None
    of the comments filed in this proceeding were specifically
    identified as comments addressing the IRFA; however, comments that
    address the impact of the proposed rules and policies on small
    entities are discussed below. This present Final Regulatory
    Flexibility Analysis (FRFA) conforms to the RFA.[^797]

## Need for, and Objectives of, the Order

1.  Since 1992, when the Commission adopted rules pursuant to the
    Telephone Consumer Protection Act (TCPA),[^798] telemarketing
    practices have changed significantly. New technologies have emerged
    that allow telemarketers to better target potential customers and
    make marketing using telephones and facsimile machines more
    cost-effective. At the same time, these new telemarketing techniques
    have heightened public concern about the effect telemarketing has on
    consumer privacy. A growing number of states have passed, or are
    considering, legislation to establish statewide do-not-call lists,
    and the Federal Trade Commission (FTC) has decided to establish a
    national do-not-call registry.[^799] Congress provided in the TCPA
    that "individuals' privacy rights, public safety interests, and
    commercial freedoms of speech and trade must be balanced in a way
    that protects the privacy of individuals and permits legitimate
    telemarketing practices."[^800]

2.  The *2002 Notice* sought comments on whether to revise or clarify
    Commission rules governing unwanted telephone solicitations, the use
    of automatic telephone dialing systems, prerecorded or artificial
    voice messages, telephone facsimile machines, the effectiveness of
    company-specific do-not-call lists, and the appropriateness of
    establishing a national do-not-call list. In addition, in the IRFA,
    the Commission sought comments on the effect the proposed policies
    and rules would have on small business entities.[^801]

3.  In this Report and Order (Order) the Commission revises the current
    TCPA rules and adopts new rules to provide consumers with additional
    options for avoiding unwanted telephone solicitations. We establish
    a national do-not-call registry for consumers who wish to avoid most
    unwanted telemarketing calls. This national do-not-call registry
    will supplement the current company-specific do-not-call rules,
    which will continue to permit consumers to request that particular
    companies not call them. The Commission also adopts a new provision
    to permit consumers registered with the national do-not-call list to
    provide permission to call to specific companies by an express
    written agreement. The TCPA rules exempt from the "do-not-call"
    requirements nonprofit organizations and companies with whom
    consumers have an established business relationship. The definition
    of "established business relationship" has been amended so that it
    is limited to 18 months from any purchase or financial transaction
    with the company and to three months from any inquiry or application
    from the consumer. Any company that is asked by a consumer,
    including an existing customer, not to call again must honor that
    request for five years. We retain the current calling time
    restrictions of 8:00 a.m. until 9:00 p.m.

4.  To address the use of predictive dialers, we have determined that a
    telemarketer must abandon no more than three percent of calls
    answered by a person, must deliver a prerecorded identification
    message when abandoning a call, and must allow the telephone to ring
    for 15 seconds or four rings before disconnecting an unanswered
    call. The new rules also require all companies conducting
    telemarketing to transmit caller identification information when
    available, and they prohibit companies from blocking such
    information. The Commission has revised its earlier determination
    that an established business relationship constitutes express
    invitation or permission to receive an unsolicited facsimile
    advertisement. We find that the permission to send fax ads must be
    in writing, include the recipient's signature, and clearly indicate
    the recipient's consent to receive such ads. In addition, we have
    clarified when fax broadcasters are liable for the transmission of
    unlawful fax advertisements.

5.  We believe the rules the Commission adopts in the Order strike an
    appropriate balance between maximizing consumer privacy protections
    and avoiding imposing undue burdens on telemarketers. In addition,
    the Commission must comply with the Do-Not-Call Act, which requires
    the Commission to file an annual report to the House Committee on
    Energy and Commerce and the Senate Committee on Commerce, Science
    and Transportation. This report is to include: (1) an analysis of
    the effectiveness of the registry; (2) the number of consumers
    included on the registry; (3) the number of persons accessing the
    registry and the fees collected for such access; (4) a description
    of coordination with state do-not-call registries; and, lastly, (5)
    a description of coordination of the registry with the Commission's
    enforcement efforts.[^802]

## Summary of Significant Issues Raised by Public Comments in Response to the IRFA

6.  There were no comments filed in direct response to the IRFA. Some
    commenters, however, raised issues and questions about the impact
    the proposed rules and policies would have on small entities.
    Telemarketers maintained that "telemarketing is used to introduce
    consumers to novel and competitive products and services,"[^803]
    often offered by small businesses.[^804] Some commenters insisted
    that business-to-business telemarketing is essential for small
    businesses.[^805] They indicated that they rely on fax broadcasting
    as a cost-effective form of advertising.[^806] On the other hand,
    other small businesses have requested that the Commission allow
    their telephone numbers to be included on any national do-not-call
    list[^807] and urged the Commission to adopt rules protecting them
    from unsolicited faxes.[^808] The rules adopted herein reflect not
    only the difficult balancing of individuals' privacy rights against
    the protections afforded commercial speech, but the difficult
    balancing of the interests of small businesses that rely on
    telemarketing against those that are harmed by unwanted telephone
    calls and facsimile transmissions. The amended rules should reduce
    burdens on both consumers and businesses, including small
    businesses.

7.  [*National Do-Not-Call List*.]{.underline} As discussed more
    extensively in the Order,[^809] some commenters opposed the adoption
    of a national do-not-call registry, stating that company-specific
    do-not-call lists adequately protect consumer privacy.[^810] Other
    commenters supported the establishment of a national do-not-call
    registry, arguing that "further regulation is needed because the
    current system does little or nothing to protect privacy in the
    home."[^811] NFIB "believes that significant burdens are being
    placed upon businesses of all sizes in order to comply with the
    regulations. . ., but that small businesses bear the brunt of those
    burdens."[^812] NFIB suggested that women, minorities and small
    businesses will be affected disproportionately by any new
    restrictions.[^813] And, some commenters maintained that businesses,
    including small businesses, will suffer a reduction in telemarketing
    sales as a result of the establishment of a national do-not-call
    list.[^814] SBSC, while opposed to a national do-not-call list,
    nevertheless offered a recommendation that would make such a list
    less onerous for small businesses. SBSC suggested exempting local
    calls that might result in a face-to-face transaction from the
    do-not-call list requirements.[^815] NAIFA also encouraged exempting
    calls which result in face-to-face meetings and recommended an
    exemption for those businesses that make a *de minimus* number of
    calls.[^816]

8.  The Commission received comments arguing that a national do-not-call
    list "would be cumbersome"[^817] and too expensive for small
    businesses to use.[^818] DSA specifically indicated that a national
    do-not-call list would increase businesses' start-up costs if they
    were required to purchase the list.[^819] In addition, MBA
    maintained that many small lenders use referrals from existing
    customers, not large lists, to attract new business. Such referrals,
    MBA suggested, will be difficult to scrub against a national
    do-not-call list.[^820] Some commenters suggested that an option to
    help reduce the cost of a national do-not-call list for small
    businesses would be to offer smaller pieces of the list to small
    businesses.[^821]

9.  Yellow Pages urged the Commission to continue to exempt
    business-to-business calls from a national do-not-call list, because
    small businesses benefit tremendously by advertising in yellow pages
    and on-line.[^822] However, other commenters requested that small
    businesses be allowed to include their telephone numbers on the
    national do-not-call list.[^823] One small business commenter stated
    that ". . . telemarketing . . . interferes with business operations,
    especially small business operations . . . ."[^824] Another
    commenter argued that "people that work from home . . . should not
    have to be bothered with telemarketing calls that would impact their
    job performance and potentially their ability to make a
    living."[^825] Finally, some have assured the Commission that a
    national do-not-call list would be manageable and feasible to
    maintain.[^826] NCS, for example, maintained that even extremely
    small telemarketers could gain access to the do-not-call list at a
    reasonable cost using the Internet.[^827]

10. *[Website or Toll-Free Number to Access Company-Specific Lists and
    to Confirm Requests]{.underline}.* The Commission sought comment on
    whether to consider any modifications that would allow consumers
    greater flexibility to register on company-specific do-not-call
    lists.[^828] We specifically asked whether companies should be
    required to provide a toll-free number and/or website that consumers
    can access to register their names on do-not-call lists.[^829] Some
    commenters argued that it would be costly if small, local businesses
    were required to design and maintain websites or provide toll-free
    numbers for consumers to make do-not-call requests.[^830] In
    addition, they maintained that businesses should not be required to
    confirm registration of a consumer's name on a company's do-not-call
    list.[^831] Confirmations by mail, they stated, would be expensive
    for a business and probably perceived by the consumer as "junk
    mail."[^832]

11. *[Established Business Relationship]{.underline}.* One issue raised
    by commenters as particularly burdensome for small business was
    monitoring existing business relationships and do-not-call requests.
    NFIB stated that members have found requests by existing customers
    to cease contacting them "unwieldy and difficult . . . to translate
    as a business practice."[^833] "An individual who continues to
    interact with a \[sic\] these small businesses following a 'do not
    contact' request does not sever the business relationship *de facto.
    . ."* [^834] According to NFIB, it should be the right of the
    business to continue to call that customer. They argued that it
    should be the responsibility of the customer to terminate the
    relationship with that business affirmatively.[^835]

12. NADA indicated that there has been no significant change that would
    warrant a revision of the established business relationship
    exemption.[^836] In fact, NADA stated that "narrowing the exemption
    would unnecessarily deprive small businesses of a cost-effective
    marketing opportunity."[^837] According to NADA, small businesses
    must maximize their marketing resources and the best way to do so is
    to direct their marketing efforts toward their existing
    customers.[^838]

13. While no commenter specifically addressed the effect of time limits
    on small businesses, several entities discussed time limits for the
    established business relationship rule in general.[^839] DMA
    indicated the difficulty in establishing a "clock" that "will apply
    across all the industries that use the phone to relate to their
    customers."[^840] DMA continued by stating "\[d\]ifferent business
    models require different periods of time."[^841] This concept was
    supported by Nextel, "the FTC's eighteen-month limit on its EBR rule
    would be inappropriate for the telecommunications industry" and
    would "dramatically increase administrative burdens and costs for
    all businesses as they would be forced to monitor and record every
    customer inquiry and purchasing pattern to ensure compliance with
    the FCC's rules."[^842]

14. *[Unsolicited Facsimile Advertising and "War Dialing"]{.underline}.*
    Privacy Rights commented that the practice of dialing large blocks
    of numbers to identify facsimile lines, *i.e.,* "war dialing,"
    should be prohibited, especially because such calls cannot be
    characterized as telemarketing.[^843] It argued that "this practice
    is particularly troubling for small business owners who often work
    out of home offices" because it deprives the small business owner of
    the use of the equipment, creates an annoyance and interrupts
    business calls.[^844]

15. NFIB advocated on behalf of its small business members that "the
    ability to fax information to their established customers is an
    essential commercial tool."[^845] Any customer who provides contact
    information when patronizing a business is providing express
    permission to be contacted by that business, including via facsimile
    advertising.[^846] In addition, NFIB indicated that businesses
    engaged in facsimile advertising should not be required to identify
    themselves, and that customers should be required to notify the
    business that they do not wish to receive such faxes.[^847] NADA
    agreed that the Commission should "preserve its determination that a
    prior business relationship between a fax sender and recipient
    establishes the requisite consent to receive fax
    advertisements."[^848] According to NADA, changing these rules would
    deprive small businesses of a marketing tool upon which they have
    come to rely.[^849]

16. Other commenters disagreed, explaining that numerous small
    businesses are burdened by the intrusion of ringing telephones and
    fax machines,[^850] the receipt of advertisements in which they are
    not interested,[^851] the depletion of toner and paper,[^852] and
    the time spent dealing with these unwanted faxes.[^853] A few
    home-based businesses and other companies maintain that facsimile
    advertisements interfere with the receipt of faxes connected to
    their own business, and that the time spent collecting and sorting
    these faxes increases their labor costs.[^854] In fact, NFIB has
    received complaints from its own members "who . . . failed to
    realize that their membership [entitles]{.underline} them to the
    receipt of such information via fax."[^855]

17. *[Caller ID Requirements]{.underline}.* In response to the
    Commission's proposal to require telemarketers to transmit caller ID
    or prohibit the blocking of such information, NYSCPB favored
    prohibiting the intentional blocking of caller ID information, but
    acknowledged that requiring the transmission of caller ID may be
    inappropriate for smaller firms.[^856] NYSCPB stated that "\[w\]hile
    mandatory transmission of caller ID information would undoubtedly
    facilitate do-not-call enforcement . . . we would not want to impose
    onerous burdens on smaller, less technically sophisticated firms . .
    . ."[^857] In addition, NYSCPB suggested that smaller businesses
    that lack the capability to transmit caller ID be exempt from
    providing caller ID information until the business installs new
    equipment with caller ID capabilities.[^858]

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

18. 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 rules adopted herein.[^859] The RFA generally
    defines the term "small entity" as having the same meaning as the
    terms "small business," "small organization," and "small
    governmental jurisdiction."[^860] In addition, the term "small
    business" has the same meaning as the term "small business concern"
    under the Small Business Act.[^861] Under the Small Business Act, a
    "small business concern" is one that: 1) is independently owned and
    operated; 2) is not dominant in its field of operation; and 3)
    satisfies any additional criteria established by the Small Business
    Administration (SBA).[^862]

19. The Commission's rules on telephone solicitation and the use of
    autodialers, artificial or prerecorded messages and telephone
    facsimile machines apply to a wide range of entities, including all
    entities that use the telephone or facsimile machine to
    advertise.[^863] That is, our action affects the myriad of
    businesses throughout the nation that use telemarketing to
    advertise. For instance, funeral homes, mortgage brokers, automobile
    dealers, newspapers and telecommunications companies could all be
    affected. Thus, we expect that the rules adopted in this proceeding
    could have a significant economic impact on a substantial number of
    small entities.

20. Nationwide, there are a total of 22.4 million small businesses,
    according to SBA data.[^864] And, as of 1992, nationwide there were
    approximately 275,801 small organizations \[not-for-profit\].[^865]

21. Again, we note that our action affects an exhaustive list of
    business types and varieties. We will mention with particularity the
    intermediary groups that engage in this activity. SBA has determined
    that "telemarketing bureaus" with \$6 million or less in annual
    receipts qualify as small businesses.[^866] For 1997, there were
    1,727 firms in the "telemarketing bureau" category, total, which
    operated for the entire year.[^867] Of this total, 1,536 reported
    annual receipts of less than \$5 million, and an additional 77
    reported receipts of \$5 million to \$9,999,999. Therefore, the
    majority of such firms can be considered to be small businesses.

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

22. The rules contained herein require significant recordkeeping
    requirements on the part of businesses, including small business
    entities. First, while the national do-not-call list will be
    developed and maintained by the FTC, all businesses that engage in
    telemarketing will be responsible for obtaining the list of
    telephone numbers on the national do-not-call list and scrubbing
    their calling lists to avoid calling those numbers.[^868] They must
    also continue to be responsible for maintaining their own
    company-specific do-not-call lists; however, this is not a new
    requirement, but a continuation of the Commission's existing rules.
    The Commission has reduced the period of time that businesses must
    retain company-specific do-not-call requests from 10 years to five
    years. In addition, for those businesses, including small
    businesses, that wish to call consumers under the "established
    business relationship" exemption, they must continue to maintain
    customer lists in the normal course of business. Because of the time
    limits associated with this rule, businesses will need to monitor
    and record consumer contacts to assure that they are complying with
    the 18-month and three-month provisions in the rule. Businesses that
    want to call consumers with whom they have no relationship, but who
    are listed on the national do-not-call list, must obtain a
    consumer's express permission to call. This permission must be
    evidenced by a signed, written agreement.

23. Second, all businesses that use autodialers, including predictive
    dialers, to sell goods or services, will be required to maintain
    records documenting compliance with the call abandonment
    rules.[^869] Such records should demonstrate the telemarketers'
    compliance with a call abandonment rate of no less than three
    percent measured over a 30-day period, with the two-second-transfer
    rule, and with the ring duration requirement.

24. Third, with the exception of tax-exempt nonprofit organizations, all
    businesses that engage in telemarketing will be required to transmit
    caller ID information.[^870]

25. Fourth, businesses that advertise by fax will be required to
    maintain records demonstrating that recipients have provided express
    permission to send fax advertisements. Such permission must be given
    in writing, and businesses must document that they have obtained the
    required permission.[^871]

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

26. The RFA requires an agency to describe any significant alternatives
    that it has considered in developing its 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 such 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 such small entities."[^872]

27. There were five specific areas in which the Commission considered
    alternatives for small businesses. These areas were: (1)
    establishing a National Do-Not-Call List ((a) providing a portion of
    the national do-not-call list (five area codes) for free, (b)
    providing businesses with 30 days to process do-not-call requests,
    and (c) reducing the do-not-call record retention rate from 10 years
    to five years); (2) maintaining the current established business
    rule exemption and adopting the FTC's time limits of 18 months and
    three months; (3) establishing a call abandonment rate of three
    percent, rather than zero percent, and measuring the rate over a
    30-day period, rather than on a per day basis; (4) continuing to
    prohibit facsimile advertising to residential and business numbers;
    and (5) declining to require businesses to maintain a website or
    toll-free number for do-not-call requests or confirmation of such
    requests by consumers. As mentioned, *supra,* in Section B of the
    FRFA, small businesses presented arguments on both sides of each of
    these issues.

28. *[National Do-Not-Call List]{.underline}.* This Order establishes a
    national do-not-call list for those residential telephone
    subscribers who wish to avoid most unwanted telephone
    solicitations.[^873] Although many businesses, including small
    businesses, objected to a national do-not-call registry,[^874] the
    Commission determined that a national do-not-call list was necessary
    to carry out the directives in the TCPA. We agreed with those
    commenters who maintained that the company-specific approach to
    concerns about unwanted telephone solicitations does not alone
    adequately protect individuals' privacy interests.[^875] We declined
    to exempt local solicitations and small businesses from the national
    do-not-call list.[^876] Given the numerous entities that solicit by
    telephone, and the technological tools that allow even small
    entities to make a significant number of solicitation calls, we
    believe that to do so would undermine the effectiveness of the
    national do-not-call rules in protecting consumer privacy. In
    addition, we declined to permit businesses to register their numbers
    on the national do-not-call registry, despite the requests of
    numerous small business owners to do so.[^877] The TCPA expressly
    contemplates that a national do-not-call database includes
    residential telephone subscribers' numbers. Although business
    numbers will not be included in the national do-not-call database, a
    business could nevertheless *request* that its number be added to a
    company's do-not-call list.

29. The Commission considered the costs to small businesses of
    purchasing the national do-not-call list. In an attempt to minimize
    the cost for small businesses, we have considered an alternative and
    determined that businesses will be allowed to obtain up to five area
    codes free of charge.[^878] Since many small businesses telemarket
    within a local area, providing five area codes at no cost should
    help to reduce or eliminate the costs of purchasing the national
    registry for small businesses.[^879] Furthermore, as suggested by
    NCS, small businesses should be able to gain access to the national
    list in an efficient, cost-effective manner via the Internet.[^880]

30. As discussed extensively in the Order, many businesses, including
    small business entities, requested specific exemptions from the
    requirements of a national do-not-call list.[^881] In order to
    minimize potential confusion for both consumers and businesses
    alike, we declined to create specific exemptions for small
    businesses.[^882] We believe the exemptions adopted for calls made
    to consumers with whom a seller has an established business
    relationship and those that have provided express agreement to be
    called provide businesses with a reasonable opportunity to conduct
    their business while protecting consumer privacy interests.

31. The Commission also considered modifying for small businesses the
    time frames for (1) processing consumers' do-not-call requests; (2)
    retaining consumer do-not-call records; and (3) scrubbing calling
    lists against the national do-not-call registry. In doing so, we
    recognized the limitations on small businesses of processing
    requests in a timely manner.[^883] Therefore, we determined to
    require that both large and small businesses must honor do-not-call
    requests within 30 days from the date such a request is made,
    instead of requiring that businesses honor requests in less
    time.[^884] Although some commenters suggested periods of up to 60
    to 90 days to process do-not-call requests, we determined that such
    an inconsistency in the rules would lead to confusion for consumers.
    Consumers might not easily recognize that the telemarketer calling
    represented a small business and that they must then allow a longer
    period of time for their do-not-call requests to be processed.

32. The Commission also determined to reduce the retention period of
    do-not-call records from 10 years to five years.[^885] This
    modification should benefit businesses that are concerned about
    telephone numbers that change hands over time. They argue that a
    shorter retention requirement will result in do-not-call lists that
    more accurately reflect those consumers who have requested not to be
    called. Finally, we considered allowing small businesses additional
    time to scrub their customer call lists against the national
    do-not-call database. The FTC's rules require telemarketers to scrub
    their lists every 90 days. For the sake of consistency, and to avoid
    confusion on the part of consumers and businesses, the Commission
    determined to require all businesses to access the national registry
    and scrub their calling lists of numbers in the registry every 90
    days.

33. *[Established Business Relationship]{.underline}.* We have modified
    the current definition of "established business relationship"[^886]
    so that it is limited in duration to 18 months from any purchase or
    transaction and three months from any inquiry or application. The
    revised definition is consistent with the definition adopted by the
    FTC.[^887] We concluded that regulating the duration of an
    established business relationship is necessary to minimize confusion
    and frustration for consumers who receive calls from companies they
    have not contacted or patronized for many years. There was little
    consensus among industry members about how long an established
    business relationship should last following a transaction between
    the consumer and seller.[^888] We believe the 18-month timeframe
    strikes an appropriate balance between industry practices and
    consumer privacy interests. Although businesses, including small
    businesses must monitor the length of relationships with their
    customers to determine whether they can lawfully call a customer, we
    believe that a rule consistent with the FTC's will benefit
    businesses by creating one uniform standard with which businesses
    must comply.

34. *[Call Abandonment]{.underline}.* In the *2002 Notice,* the
    Commission requested information on the use of predictive dialers
    and the harms that result when predictive dialers abandon
    calls.[^889] In response, some small businesses urged the Commission
    to adopt a maximum rate of zero on abandoned calls. They described
    their frustration over hang-up calls that interrupt their work and
    with answering the phone "only to find complete silence on the other
    end."[^890] Most industry members encouraged the Commission to adopt
    an abandonment rate of no less than five percent, claiming that this
    rate "minimizes abandoned calls, while still allowing for the
    substantial benefits achieved by predictive dialers."[^891] The
    Commission has determined that a three percent maximum rate on
    abandoned calls balances the interests of businesses that derive
    economic benefits from predictive dialers and consumers who find
    intrusive those calls delivered by predictive dialers.[^892] We
    believe that this alternative, a rate of three percent, will also
    benefit small businesses that are affected by interruptions from
    hang-ups and "dead air" calls.

35. The three percent rate will be measured over a 30-day period, rather
    than on a per day basis. Industry members maintained that a per day
    measurement would not account for short-term fluctuations in
    marketing campaigns[^893] and may be overly burdensome to smaller
    telemarketers. We believe that measuring the three percent rate over
    a longer period of time will still reduce the overall number of
    abandoned calls, yet permit telemarketers to manage individual
    calling campaigns effectively. It will also permit telemarketers to
    more easily comply with the recordkeeping requirements associated
    with the use of predictive dialers.

36. *[Unsolicited Facsimile Advertising]{.underline}*. The record
    reveals that facsimile advertising can both benefit and harm small
    businesses with limited resources. The small businesses and
    organizations that rely upon faxing as a cost-effective way to
    advertise insist that the Commission allow facsimile advertising to
    continue.[^894] Other small businesses contend that facsimile
    advertising interferes with their daily operations, increases labor
    costs, and wastes resources such as paper and toner.[^895] The
    Commission has reversed its prior conclusion that an established
    business relationship provides companies with the necessary express
    permission to send faxes to their customers.[^896] Under the amended
    rules, a business may advertise by fax with the prior express
    permission of the fax recipient, which must be in writing.[^897]
    Businesses may obtain such written permission through direct mail,
    websites, or during interaction with customers in their stores. This
    alternative will benefit those small businesses, which are inundated
    with unwanted fax advertisements.

37. *[Website or Toll-Free Number to Access Company-Specific Lists and
    to Confirm Requests]{.underline}*. Lastly, the Commission has
    determined not to require businesses to provide a website or
    toll-free number for consumers to request placement on
    company-specific do-not-call lists or to respond affirmatively to
    do-not-call requests or otherwise provide some means of confirmation
    that consumers have been added to a company's do-not-call
    list.[^898] Several commenters indicated that such requirements
    would be costly to small businesses.[^899] Although we believe these
    measures would improve the ability of consumers to register
    do-not-call requests, we agree that such requirements would be
    potentially costly to businesses, particularly small businesses.
    Instead, we believe that the national do-not-call registry will
    provide consumers with a viable alternative if they are concerned
    that their company-specific do-not-call requests are not being
    honored. In addition, consumers may pursue a private right of action
    if there is a violation of the do-not-call rules. This alternative
    should reduce, for small businesses who engage in telemarketing,
    both the potential cost and resource burdens of maintaining
    company-specific lists.

38. **[REPORT TO CONGRESS:]{.underline}** The Commission will send a
    copy of the Order, including this FRFA, in a report to be sent to
    Congress pursuant to the Congressional Review Act.[^900] In
    addition, the Commission will send a copy of the Order, including
    this FRFA, to the Chief Counsel for Advocacy of the SBA. A copy of
    the Order and FRFA (or summaries thereof) will also be published in
    the Federal Register.[^901]

    **Appendix C**

**[Comments Filed]{.underline}**

*Due to the significant number of comments filed by individual consumers
in this proceeding, we have listed below only those comments received
from industry, consumer advocacy groups and governmental entities. All
individual consumer comments, including those cited in the Report and
Order, are available for inspection on the Commission's Electronic
Comment Filing System (ECFS).*

ACI Telecentrics Incorporated (5-2-03) ACI

Allstate Life Insurance Company (Lisa Behzad; 12-9-02) Allstate

Americall Group, Inc. (11-26-02) Americall

American Association of Blood Banks (Marlene H. Dortch; 12-6-02) AABB

American Association of Retired Persons (AARP; 1-31-03) AARP

American Bankers Association (12-9-02) ABA

American Business Media (11-22-02) ABM

American Express Company (12-5-02) American Express

American General Finance, Inc. (12-10-02) AGF

American Insurance Association (11-21-02) AIA

American International Automobile Dealers Association (12-9-02) AIADA

American Red Cross (12-9-02) Red Cross

American Resort Development Association (11-15-02) ARDA

American Teleservices Association (12-9-02) (12-23-02) ATA

America's Blood Centers (Jeanne Dariotis; 12-5-02) ABC

Ameriquest Mortgage Company (12-9-02) Ameriquest

Association for Communications Technology Professionals in

Higher Education (ACUTA, Inc.) and Association of College

and University Housing Officers-International (ACUHO-I)

(ACUTA and ACUHO-I; 12-9-02) ACUTA

Association for Competitive Technology (12-9-02) ACT

Association of Fundraising Professionals (11-27-02) AFP

AT&T Wireless Services, Inc. (12-9-02) AT&T Wireless

Autoflex Leasing (11-18-02) Autoflex

Avinta Communications, Inc. (Abraham Y. Chen; 11-18-02) Avinta

Bank of America (12-3-02) Bank of America

BellSouth Corporation (12-9-02) BellSouth

Blocklist.com (12-9-02) Blocklist.com

BMO Financial Group (12-9-02) BMO Financial

The Broadcast Team (12-6-02) TBT

Brunswick Corporation (12-9-02) Brunswick

Californians Against Telephone Solicitation (Robert Arkow; 12-9-02) CATS

Call Compliance, Inc. (12-9-02) Call Compliance

Castel, Inc. (2-28-03) Castel

Cellular Telecommunications & Internet Association (12-9-02) CTIA

Cendant Corporation (11-22-02) Cendant

Center for Democracy & Technology (12-9-02) CDT

Cherry Communications (11-21-02) Cherry

Cingular Wireless LLC (12-9-02) Cingular

Citigroup, Inc. (12-12-02) Citigroup

City of Chicago (11-22-02) City of Chicago

CMOR (12-9-02) CMOR

CNN.com (4-22-03) CNN

Colorado Public Utilities Commission (12-3-02) CO PUC

Comcast Cable Communications, Inc. (12-9-02) Comcast

Concerned Telephone Companies (12-9-02) CTC

Consumer Bankers Association (12-9-02) CBA

Consumer Choice Coalition (12-2-02) Coalition

Consumer Disability Telecommunications

Advisory Committee (12-24-02) CDTAC

Consumer Mortgage Coalition (12-19-02) CMC

Convergys Corporation (12-9-02) Convergys

Copilevitz and Canter, LLC (William E. Raney; 12-9-02) Copilevitz &
Canter

Cox Enterprises, Inc. (12-9-02) Cox

DialAmerica Marketing, Inc. (12-10-02) DialAmerica

Direct Marketing Association (12-9-02) DMA

Direct Selling Association (12-9-02) DSA

DIRECTV, Inc. (12-9-02) DIRECTV

Discover Bank (12-9-02) Discover

Electronic Privacy Information Center; Consumer Task Force for

> Automotive Issues; Remar Sutton; Consumer Action; Privacy
>
> Rights Clearinghouse; Consumer Federation of America;
>
> International Union, UAW; Free Congress Foundation; Junkbusters
>
> Corp.; Consumer Project on Technology; Computer Professionals
>
> for Social Responsibility; and Private Citizens, Inc. (12-9-02) EPIC

Electronic Retailing Association (12-9-02) ERA

Emergency Communications Network, Inc. (12-6-02) ECN

Farmers Insurance Group (11-22-02) Farmers

Financial Services Roundtable (12-12-02) FSR

Florida Department of Agriculture and Consumer Services (1-8-03) FL DACS

Fund for Public Interest Research, Inc. (Jon Scarlett; 12-6-02) Fund for
Public Interest

Globecomm Systems, Inc. (12-9-02) Globecomm

Hilton Head Hospitality Resort Services (1-31-03) Hilton Head

Household Automotive Finance Corporation; OFL-A Receivables

Corp.; and Household Automotive Credit Corporation (12-9-02) Household
Automotive

Household Bank (SB), N.A. (12-9-02) Household Bank

Household Finance Corp. (House Hold Finance Corporation; 12-12-02)
Household Finance

Household Financial Services, Inc. (12-10-02) HFS

Hunton & Williams (11-22-02) Hunton & Williams

IBM Corporate Market Intelligence (2-4-03) IBM

Intellidyn Corporation (Kathie Fleischer; 12-4-02) Intellidyn

Interactive Teleservices Corporation (Barbara Bricker; 4-10-03)

> (Duane L. Billingslea; 4-11-03) ITC

Intrado Inc. (11-22-02) Intrado

Intuit, Inc. (12-9-02) Intuit

Katz & Korin (Robert J. Schuckit; 10-5-02) Katz & Korin

Kauffman Group Inc. (11-25-02) Kauffman

Kondos & Kondos Law Offices (11-14-02) Kondos & Kondos

LCC International, Inc. (12-9-02) LCC

The Leukemia & Lymphoma Society (George Dahlman;

> 1-31-03 and 5-2-03) L&LS

LSSi Corp. (12-9-02) LSSi

Magazine Publishers of America (12-9-02) MPA

March of Dimes (11-22-02) March of Dimes

MasterCard International Incorporated (12-9-02) Mastercard

Mathemaesthetics, Inc. (11-22-02) (*see also* Douglas M. McKenna)
Mathemaesthetics

MBNA America Bank, N.A. (12-9-02) (Revised 12-10-02) MBNA

Metris Companies, Inc. (12-6-02) Metris

Meyer Associates, Inc. (\[Thoams\] Caprio; 4-24-03) Meyer

MidFirst Bank (1-9-03) MidFirst

Mortgage Bankers Association of America (12-9-02) MBA

Mortgage Investors Corporation, Inc. (12-9-02) Mortgage Investors

Mothers Against Drunk Driving (1-30-03) (Wendy J. Hamilton; 5-1-03) MADD

Moultrie Independent Telephone Company (12-9-02) Moultrie

National Association of Attorneys General (12-9-02) NAAG

National Association of Broadcasters (12-9-02) NAB

National Association of Consumer Agency Administrators

> (Kathleen Thuner, President; 11-22-02) NACAA

National Association of Independent Insurers (12-10-02) NAII

National Association of Insurance & Financial Advisors (11-22-02) NAIFA

National Association of Mortgage Brokers (12-9-02)

> (*see also* Armand Cosenza) NAMB

National Association of Regulatory Utility Commissioners (11-22-02)
NARUC

National Association of State Utility Consumer Advocates

> (NASUCA; 12-9-02) NASUCA

National Automobile Dealers Association (12-10-02) NADA

National Cable & Telecommunications Association (12-9-02) NCTA

National Consumers League (12-6-02) NCL

National Energy Marketers Association (11-22-02) NEM

National Federation of Independent Business (1-9-03) NFIB

National Public Radio, Inc. (12-9-02) NPR

National Retail Federation (12-9-02) NRF

National Telecommunications Cooperative Association (11-22-02) NTCA

NCS Pearson, Inc. (12-9-02) NCS

NeuStar, Inc. (12-9-02) NeuStar

New Orleans, Utility, Cable & Telecommunications Committee

> of the City Council (11-18-02) City of New Orleans

Newsletter & Electronic Publishers Association (12-9-02) NEPA

Newspaper Association of America (12-9-02) NAA

New York State Consumer Protection Board (11-22-02) (3 comments) NYSCPB

Nextel Communications, Inc. (12-9-02) Nextel

Nielsen Media Research, Inc. (1-31-03) Nielsen

North Dakota Public Service Commission (12-2-02) ND PSC

Not-For-Profit and Charitable Coalition (11-22-02) NPCC

Office of the People's Counsel for the District of Columbia

(Elizabeth A. Noel; 12-9-02) OPC-DC

Ohio, Public Utilities Commission (12-9-02) PUC of Ohio

Oregon Telecommunications Association (12-3-02) OTA

Pacesetter Corporation (11-20-02) Pacesetter

Personal Legal Plans, Inc. (12-16-02) PLP

Progressive Casualty Insurance Company (11-18-02) Progressive Casualty

Privacilla.org (12-9-02) Privacilla.org

Privacy Rights Clearinghouse (Beth Givens; 12-5-02) PRC

Private Citizen, Inc. (12-9-02) Private Citizen

Process Handler et al. For Hire, Inc. (5-14-03) Process Handler

Progressive Business Publications (Edward M. Satell; 4-28-03)
Progressive Business

Qwest Services Corporation (12-9-02) Qwest

R & D Lawn & Tree Services (11-18-02) R & D

Reed Elsevier, Inc. (12-9-02) Reed

Reese Brothers, Inc. (12-9-02) Reese

Response Catalyst (Doug Hibbeler; 12-9-02) Response Catalyst

Royal Sonesta Hotel (4-7-03) Royal Sonesta

SBC Communications, Inc. (12-9-02) SBC

Scholastic, Inc. (12-9-02) Scholastic

The Seattle Times Company (12-9-02) Seattle Times

SER Solutions, Inc. (11-19-02) SER

Small Business Survival Committee (1-31-03) SBSC

Special Olympics Florida (Laurie Moyson; 5-8-03) Special Olympics FL

Special Olympics Hawaii (Nancy Bottelo; 1-30-03) Special Olympics HI

Special Olympics Kansas (5-1-03) Special Olympics KS

Special Olympics New Jersey (Suzanne Schwanda; 1-31-03) Special Olympics
NJ

Special Olympics New Mexico (Randy Mascorella; 4-30-03) Special Olympics
NM

Special Olympics New York (5-2-03) Special Olympics NY

Special Olympics Ohio (Federal Communications Commission; 1-31-03)
Special Olympics OH

Special Olympics Virginia (5-2-03) Special Olympics VA

Special Olympics Wisconsin (Dennis H. Alldridge; 1-30-03) Special
Olympics WI

Sprint (12-9-02) Sprint

Student Parent Support Services Corp. (3-19-03) Student Support

Suggs & Associates, P.C. (James \[M.Suggs\]; 12-4-02) Suggs

Sytel Limited (12-9-02) Sytel

Technion Communications Corp. (11-19-02) Technion

Telatron Marketing Group, Inc. (12-9-02) Telatron

Telecommunications for the Deaf (11-15-02) TDI

Teleperformance USA (Julie Loppe-Peyrin; 12-6-02)

> (Timothy J. Casey; 12-6-02) Teleperformance

Telestar Marketing, L.P. (11-19-02) Telestar

Tennessee Regulatory Authority and the

Tennesse Attorney General (12-9-02) TN AG

Texas, Office of Public Utility Counsel (12-9-02) TOPUC

Texas, Public Utility Commission (12-3-02) Texas PUC

TSI Telecommunications Services, Inc. (11-7-02) TSI

U. S. Chamber of Commerce (12-26-02) Chamber of Commerce

Vector Marketing Corporation (12-9-02) Vector

Ver-A-Fast (12-10-02) (*see also* Bob Bensman; 11-19-02) Ver-A-Fast

VeriSign, Inc. (f/n/a Illuminet, Inc.) (3-31-03) VeriSign

Verizon (12-10-02) Verizon

Verizon Wireless (12-9-02) Verizon Wireless

Visa U.S.A. Inc. (12-9-02) Visa

Wells Fargo & Company (11-5-02) Wells Fargo

Winnebago Cooperative Telephone Association (1-30-03) Winnebago

Worldcom, Inc. (12-9-02) Worldcom

Xpedite Systems, Inc. (12-9-02) Xpedite

Yellow Pages Integrated Media Association (12-9-02) Yellow Pages

**[Reply Comments Filed]{.underline}**

Adval Communications, Inc. (1-31-03) ADVAL

American Teleservices Association (1-31-03) (3-5-03, correction) ATA

Ameriquest Mortgage Company (1-31-03) Ameriquest

AT&T Wireless Services, Inc. (1-31-03) AT&T Wireless

BellSouth Corporation (1-31-03) BellSouth

Cablevision Systems Corporation (1-31-03) Cablevision

Cavalier Telephone, LLC (1-31-03) Cavalier

CMOR (1-31-03) CMOR

Coontz, J. Greg (1-8-03)

DialAmerica Marketing, Inc. (1-31-03) DialAmerica

Direct Marketing Association (1-31-03) DMA

DIRECTV, Inc. (1-31-03) DIRECTV

Hershovitz, Marc B., Michael Jablonski, Ned Blumenthal

and C. Ronald Ellington (1-8-03) (3 comments) Hershovitz

The International Softswitch Consortium (1-31-03) ISC

Intuit, Inc. (1-31-03) Intuit

LSSi Corp. (Lissi Corp; 1-31-03) LSSi

Mathemaesthetics, Inc. (1-8-03) (*see also* Douglas McKenna; 1-6-03)
Mathemaesthetics

MBNA America Bank, N.A. (1-31-03) MBNA

Mortgage Bankers Association of America

(Stephen A. O'Conner; 1-31-03) MBA

National Association of Broadcasters (1-31-03) NAB

National Association of State Utility Consumer

Advocates (NASUCA; 1-31-03) NASUCA

National Public Radio, Inc. (1-31-03) NPR

NCS Pearson, Inc. (1-31-03) NCS

The Newspaper Association of America (1-21-03) NAA

Nextel Communications, Inc. (1-31-03) Nextel

Office of the People's Counsel for the District of Columbia

(Elizabeth A. Noël, People's Counsel; 1-31-03) OPC-DC

Private Citizen, Inc. (1-9-03) Private Citizen

RoperASW (1-30-03) RoperASW

SBC Communications, Inc. (1-31-03) SBC

Sytel Limited (2-3-03) Sytel

Teleperformance USA (4-30-03) Teleperformance

Vector Marketing Corporation (1-31-03) Vector

Verizon (1-31-03) Verizon

Verizon Wireless (1-31-03) Verizon Wireless

Visa (1-31-03) Visa

VoltDelta (Brad Schorer; 12-9-02) VoltDelta

Worldcom, Inc. (1-31-03) Worldcom

Xpedite Systems, Inc. (1-31-03) Xpedite

Yellow Pages Integrated Media Association (1-31-03) Yellow Pages

**[Further Comments Filed]{.underline}**

Active Periodicals, Inc. (5-5-03) Active Periodicals

Allstate Life Insurance Company (5-5-03) Allstate

American Association of Retired Persons (AARP; 5-19-03) AARP

American Council of Life Insurers (5-5-03) ACLI

American Teleservices Association (5-5-03) ATA

America's Community Bankers (5-8-03) ACB

Ameriquest Mortgage Company (5-5-03) Ameriquest

Bank of America Corporation (Kathryn D. Kohler; 5-2-03) Bank of America

Bank One Corporation (5-5-03) Bank One

Cendant Corporation (5-5-03) Cendant

Citigroup Inc. (5-19-03) Citigroup

City of Chicago (5-1-03) City of Chicago

Chrusch, Michael J., Esq. (5-5-03)

Consumer Council of America (5-5-03) CCA

Direct Marketing Association (5-5-03) DMA

DIRECTV, Inc. (5-5-03) DIRECTV

Electronic Retailing Association (5-5-03) ERA

Federal Trade Commission (5-12-03) FTC

Household Bank (SB), N.A. (5-2-03) Household

InfoCision Management Corporation (5-5-03) InfoCision

Interactive Teleservices Corporation ITC

Intuit Inc. (5-5-03) Intuit

Lorman Education Services (5-5-03) Lorman

MBNA America Bank, N.A. (5-5-03) MBNA

Metris Companies Inc. (5-5-03) Metris

Miller Isar, Inc. (5-2-03) Miller Isar

Mortgage Bankers Association of America (Kurt Pfotenhauer; 5-5-03) MBA

National Association of Independent Insurers

> (National Association of Independent Insures \[sic\]; 5-5-03) NAII

National Association of Realtors

> (National Association of Realtor; 5-5-03) NAR

National Association of State Utility Consumer Advocates

> (NASUCA; 5-5-03) NASUCA

National Association of Insurance and Financial Advisors (5-2-03) NAIFA

National Telecommunications Cooperative Association (NTCA; 5-5-03) NTCA

Newspaper Association of America (5-5-03) NAA

New Jersey State Division of the Ratepayer Advocate (5-5-03) New Jersey
Ratepayer

Nextel Communications, Inc. (5-5-03) Nextel

Scholastic Inc. (5-5-03) Scholastic

Securities Industry Association (James Y. Chin; 5-5-03) SIA

Software & Information Industry Association (5-5-03) SIIA

Sprint Corporation (5-5-03) Sprint

Stonebridge Life Insurance Companies (5-5-03) Stonebridge

Teleperformance USA (4-29-03) Teleperformance

Tennessee Regulatory Authority (5-5-03) TN RA

Vector Marketing Corporation

> (Vector -- Marketing Corporation; 4-29-03) Vector

Verizon (5-5-03) Verizon

Winstar Communications, LLC (5-5-03) Winstar

Worldcom, Inc. (5-5-03) Worldcom

Yellow Pages Integrated Media Association (5-5-03) Yellow Pages

**[Further Reply Comments Filed]{.underline}**

American Council of Life Insurers (5-19-03) ACLI

American Teleservices Association (5-19-03) ATA

America's Community Bankers (5-8-03) ACB

Ameriquest Mortgage Company (5-5-03) Ameriquest

Competitive Telecommunications Association (5-19-03) Competitive Telecom

DialAmerica Marketing, Inc. (5-19-03) DMA

Indiana Attorney General Steve Carter (5-19-03) Indiana AG

National Association of State Utility Consumer Advocates

> (NASUCA; 5-19-03) NASUCA

New Jersey State Division of the Ratepayer Advocate (5-19-03) New Jersey
Ratepayer

Primerica Financial Services, Inc. (5-19-03) Primerica

SBC Communications, Inc. (SBC Communications Inc.; 5-19-03) SBC

Verizon (5-5-03) Verizon

**SEPARATE STATEMENT OF**

**CHAIRMAN MICHAEL K. POWELL**

*Re: Rules and Regulations Implementing the Telephone Consumer
Protection Act of*

*1991; CG Docket No. 02-278*

Our decision today is the most sweeping consumer protection measure ever
adopted by the FCC. No longer will consumers be forced to endure
unwanted telephone calls and faxes. Under the Telephone Consumer
Protection Act (TCPA) and our revised rules, consumers are empowered to
choose.

The TCPA is about tools. It gives consumers the tools they need to build
a high and strong fence around their homes to protect them from
unsolicited telephone calls and faxes. It also allows other consumers to
have a lower fence or no fence at all, if they wish to take advantage of
these commercial messages. Our decision makes the American consumer's
toolbox more complete by creating a national do not call list and
strengthening and modifying our other longstanding protections under the
TCPA. Our goal: to maximize consumers' ability to control the messages
they receive on their personal phones and faxes.

Since the enactment of the TCPA a decade ago, the rapid growth of
technology has led to a five-fold increase in marketing contacts via
telephone. An increased number of telemarketing calls, the proliferation
of predictive dialers, and the incomplete protections of
less-comprehensive do not call lists have combined to necessitate the
Commission's new approach. Consumers want more control over their
telephones -- today we give it to them.

In addition to the national do not call list, our decision contains a
number of other important provisions. First, although telemarketing
calls made pursuant to an existing business relationship are exempt
under the TCPA, the Commission today significantly narrows the scope of
that exemption to better protect consumers. Consumers may eliminate even
these commercial calls upon request. Second, we tighten the limitations
on our existing do not call rules and impose additional requirements on
predictive dialers, pre-recorded messages, and calls to wireless phones.
We also require telephone solicitations to provide caller
identification. Finally we adopt stricter rules to control unsolicited
fax advertising. Taken together and combined with vigilant enforcement,
our rules provide consumers with the tools they need to craft the
commercial relationships they want.

Consistent with the instructions in the recently enacted Do Not Call
Implementation Act, our order maximizes consistency and complements the
FTC's recently amended rules. I look forward to working with the FTC,
under the fine leadership of Chairman Muris, to harmonize our rules and
move forward with nation-wide implementation of the federal Do-Not-Call
Registry.

**SEPARATE STATEMENT OF**

**COMMISSIONER KATHLEEN Q. ABERNATHY**

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

Today's decision to establish a national do-not-call list is directly
responsive to consumer frustration with telemarketing overload.
Consumers are fed up with the barrage of telemarketing calls that
intrude on their privacy, and they crave the ability to just say no.
Congress also has made clear the importance of giving consumers a more
effective means of blocking unwanted calls. Congress authorized
establishment of a national do-not-call registry in the Telephone
Consumer Protection Act of 1991, and earlier this year, it enacted the
Do-Not-Call Implementation Act. This legislation authorizes funding for
the Federal Trade Commission's national registry and directs this
Commission to "maximize consistency" with the FTC's Telemarketing Sales
Rule. Today's action responds to this congressional direction by
providing a convenient, one-stop solution that will enable consumers to
place their phone numbers on a unified national do-not-call list at no
charge.

At the same time, I remain mindful that telemarketing can serve a
valuable function by providing information to consumers about goods and
services. Many consumers appreciate learning about ways to save money,
obtain better service, or otherwise take advantage of commercial
opportunities. Moreover, telemarketers enjoy protection under the First
Amendment, which requires that any restrictions on commercial speech
advance a substantial governmental interest and be no more extensive
than necessary. Accordingly, I am pleased that we have crafted rules
that balance the competing interests at stake.

In particular, we have preserved and in some cases modified the
exemptions for calls to consumers with whom the marketer has an
established business relationship, calls to consumers who have expressly
consented to being called, and calls by tax-exempt nonprofit
organizations (or by independent telemarketers calling on their behalf).
Consumers should understand that, as a result of these statutory
exemptions, placing a phone number on the national do-not-call list will
not necessarily mean that you will receive *no* telemarketing calls. But
the small number of calls received should be more consistent with
consumers' expectations of privacy, and consumers can prohibit any
further contact through company-specific do-not-call lists.

I am also pleased that the Commission has established a narrow exemption
from the national do-not-call list to permit marketers to contact people
with whom they have a personal relationship. I believe the record shows
that Congress was concerned about anonymous calls using autodialers; it
did not intend to put the Avon Lady out of business. Consumers generally
expect and welcome calls from family, friends, and acquaintances who
want to promote products and services. Restricting such calls therefore
would impose a more extensive burden on speech than is necessary to
achieve Congress's goals.

In addition, the Order appropriately clarifies the interplay between
federal and state telemarketing restrictions. While I support empowering
consumers to block unwanted calls, telemarketers should not have to
comply with multiple, inconsistent rules. Indeed, Congress clearly
called on this Commission and the FTC to establish a uniform federal
regime. Thus, the Order appropriately clarifies that, while states may
enforce the federal rules and may adopt more restrictive rules for
intrastate calls, states generally may not regulate interstate calls.

In sum, I am pleased to support this Order, because it provides
effective mechanisms for consumers to restrict unwanted telemarketing
calls, while balancing the legitimate interests that companies and
individuals have in communicating with customers and potential
customers. I expect companies to comply with our new rules, and I look
forward to working together with the FTC and state attorneys general to
ensure that consumers receive the privacy protection they want and
deserve.

**SEPARATE STATEMENT OF**

**COMMISSIONER MICHAEL J. COPPS**

Re: *Rules and Regulations Implementing the Telephone Consumer
Protection Act of*

*1991 (CG Docket No. 02-278), Report and Order*

Few rights are so fundamental as the right to privacy in our daily
lives, yet few are under such frontal assault. Our dinners are disrupted
by unwanted phone calls. Our computer accounts are besieged with
bothersome spam. Our mailboxes are swollen with advertisements for
products, goods and services. We conduct our whole lives against the
white noise of commercial solicitation. These intrusions exhaust us,
irritate us and threaten our cherished right to be left alone.

Today we have an opportunity to do something about it. We have an
opportunity to reinforce our homes against the constant invasion of
commercialism and the endless nuisance of unwanted telemarketing calls.
At the direction of Congress and through coordinated action with the
Federal Trade Commission, we now return a measure of privacy control to
citizens. We establish a national Do-Not-Call registry that permits each
of us to choose limits on the telemarketing calls we receive. We do this
in a way that balances the First Amendment rights of marketers with the
right of each individual and every household to determine the scope of
permissible intrusion. This decision represents a positive step for all
of us, not only as consumers, but as citizens. I am pleased to support
it.

I am especially pleased that the rules we adopt are in harmony with
those put in place by our allies in this exercise at the Federal Trade
Commission. This is consistent with Congress' direction that we
"maximize consistency" with the rules adopted by our fellow agency. This
makes for a user-friendly registry.

To ensure that the Do-Not-Call list achieves the protective power and
prominence that Congress intended, both agencies must now work
together---and with our partners in the states---to enforce the national
program we establish here today. When the Do-Not-Call list is open for
business, we will share the duty of vigilant enforcement. We worked hard
here to balance the rights and privileges of personal contacts and
relationships with the right to be left alone. I think we achieve good
balance, but I never underestimate the inventiveness of some in skirting
or abusing rules, and these individuals and enterprises should
understand that such actions will not go unnoticed or unpunished.

We all owe a debt of gratitude to the many people at our Consumer and
Governmental Affairs Bureau who worked hard to draft and coordinate and
bring this item before the Commission and who will continue to labor on
behalf of the American people to implement the rules and make the
national registry a success. I also want to commend my colleagues for
the productive discussions we have had on this item in recent days. The
result is a little more privacy in our not-so-private society.

**SEPARATE** **STATEMENT OF**

**COMMISSIONER JONATHAN S. ADELSTEIN**

*Re: Rules and Regulations Implementing the Telephone Consumer
Protection Act of 1991 (CG Docket 02-278).*

I am pleased to support this item. By adopting a National Do-Not-Call
List, we arm American consumers with a powerful tool to protect their
privacy. This is one of the most significant things that the FCC has
ever done for American families. It will benefit consumers on a daily
basis and in a very personal way. It's certainly the thing that people
will notice as much as anything else we have done. We're restoring peace
and quiet around the dinner table for everyone who asks for it, and
plenty will ask, myself included. The public has sent a resounding
directive telling us that uninvited telephone solicitations are not
merely a distraction but are driving customers away from their phones.
Consumers have also made clear that our prior rules -- without a
national Do-Not-Call List -- do not work to their satisfaction. And
Congress has made its wishes clear by adopting the Do-Not-Call Act which
authorized the establishment of the national list. My hope is that our
actions here will allow the American public to once again view their
phones as a useful connection to the world rather than a source of
nightly harassment.

At the same time, we balance the interests of consumer privacy alongside
the commercial speech interests of those businesses who use the
telephone to offer goods and services and the interests of those
consumers willing to receive such offers. The record bears out that many
consumers find telephone solicitations valuable. According to industry
estimates, outbound telemarketing generates between 300 and 600 billion
dollars in annual revenues. So, I am sensitive to the potential impact
of these rules on the businesses that rely on telephones to reach their
customers. I have particular concern about the local telephone industry,
where the practical effect of our established business relationship
exemption may have an uneven impact on competitors. Nonetheless,
Congress has captured the will of the people -- certainly, as reflected
in our record -- when it directed us to "maximize the consistency" of
our rules with the newly-adopted FTC national list. Congress did not
explicitly provide for particular treatment of the local telephone
industry in the Do-Not-Call Act, but I believe that this area warrants
our special attention and monitoring.

So that our rules are no more extensive than necessary and because
American consumers each hold different views about the value of
telephone solicitations, we adopt a suite of options from which
customers can choose the approach that best serves their needs. Under
our rules, customers may sign up for the new national Do-Not-Call List
or, alternatively, may continue to receive telemarketing calls and sign
up for the company-specific lists when they no longer wish to hear from
a particular company. When customers sign up for the national list, they
still have the ability to grant express permission to receive calls from
particular companies. So our rules are flexible enough to allow
consumers to choose the best option for them.

We have a special obligation to remain vigilant in our implementation of
these rules. Congress has asked us to report to it annually. I look
forward to those reports with the optimism that we have adopted measures
that will put American consumers back in control of their phones.

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

[^2]: The Direct Marketing Association (DMA) is a trade association of
    businesses that advertise their products and services directly to
    consumers by mail, telephone, magazine, internet, radio or
    television. *See also infra*, note 47.

[^3]: Do-Not-Call Implementation Act, Pub. L. No. 108-10, 117 Stat. 557
    (2003), *to be codified at* 15 U.S.C. § 6101 *(Do-Not-Call Act).*

[^4]: *See* *TCPA*, Section 2(5), *reprinted in* 7 FCC Rcd 2736 at 2744.

[^5]: 47 U.S.C. § 227(b)(1).

[^6]: 47 U.S.C. §§ 227(d)(1)(B) and (d)(3)(A). *See also* *Rules and
    Regulations Implementing the Telephone Consumer Protection Act of
    1991*, CC Docket No. 92-90, Order on Further Reconsideration, 12 FCC
    Rcd 4609, 4613, para. 6 (1997) (*1997 TCPA Reconsideration Order*),
    in which the Commission found that "\[s\]ection 227(d)(1) of the
    statute mandates that a facsimile include the identification of the
    business, other entity, or individual creating or originating a
    facsimile message and not the entity that transmits the message."
    (footnotes omitted).

[^7]: The TCPA permits consumers to file suit in state court if an
    entity violates the TCPA prohibitions on the use of facsimile
    machines, automatic telephone dialing systems, and artificial or
    prerecorded voice messages and telephone solicitation. 47 U.S.C. §§
    227(b)(3) and (c)(5). Consumers may recover actual damages or
    receive up to \$500 in damages for each violation, whichever is
    greater. If the court finds that the entity willfully or knowingly
    violated the TCPA, consumers may recover an amount equal to not more
    than three times this amount. 47 U.S.C. § 227(b)(3). Consumers may
    also bring their complaints regarding TCPA violations to the
    attention of the state attorney general or an official designated by
    the state. This state entity may bring a civil action on behalf of
    its residents to enjoin a person or entity engaged in a pattern of
    telephone calls or other transmissions in violation of the TCPA. 47
    U.S.C. § 227(f)(1). Additionally, a consumer may request that the
    Commission take enforcement actions regarding violations of the TCPA
    and the regulations adopted to enforce it. *See* 47 C.F.R. § 1.41 on
    informal requests for Commission action and 47 C.F.R. § 1.716 on the
    Commission's process for complaints filed against common carriers.

[^8]: 47 U.S.C. § 227(b)(2).

[^9]: 47 U.S.C. § 227(c)(1)-(4).

[^10]: 47 U.S.C. § 227(c)(1)(A).

[^11]: 47 U.S.C. § 227(c)(3).

[^12]: *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.

[^13]: Initially telemarketers were required to honor a do-not-call
    request indefinitely. The Commission later modified its rules to
    require that the request be honored for a ten-year period. *See*
    *Rules and Regulations Implementing the Telephone Consumer
    Protection Act of 1991,* CC Docket No. 92-90, Memorandum Opinion and
    Order, 10 FCC Rcd 12391, 12397-98, para. 14 (1995) (*1995 TCPA
    Reconsideration Order*); 47 C.F.R. § 64.1200(e)(2)(vi).

[^14]: 47 C.F.R. § 64.1200(e)(2)(i).

[^15]: 47 C.F.R. § 64.1200(e)(2)(ii).

[^16]: 47 C.F.R. § 64.1200(e)(1).

[^17]: 47 C.F.R. § 64.1200(e)(2)(iv).

[^18]: 47 C.F.R. § 64.1200(a)(1)(i)-(iii).

[^19]: 47 C.F.R*.* § 64.1200(a)(2).

[^20]: 47 C.F.R. §§ 64.1200(a)(4) and 68.318(c).

[^21]: 47 C.F.R*.* § 64.1200(a)(3).

[^22]: 47 C.F.R*.* §§ 64.1200(d)(1) and (2); 47 C.F.R. § 68.318(d).

[^23]: *1995 TCPA Reconsideration Order*, 10 FCC Rcd at 12397-401,
    paras. 12-19.

[^24]: *1995 TCPA Reconsideration Order,* 10 FCC Rcd at 12404-06, paras.
    27-31.

[^25]: *1997 TCPA Reconsideration Order,* 12 FCC Rcd at 4612-13, para.
    6. The Commission also "\[did\] not find anything in the TCPA that
    would prohibit a facsimile broadcast provider from supplying
    identification of itself and the entity originating a message if it
    arranges with the message sender to do so." *Id.* at 4613, para. 6.

[^26]: *See* *TCPA,* Section 2(3), *reprinted in* 7 FCC Rcd 2736 at
    2744.

[^27]: *See* *TCPA*, Section 2(4), *reprinted in* 7 FCC Rcd 2736 at
    2744.

[^28]: In attempting to estimate the number of outbound marketing calls
    made each day in the United States, representatives of the Direct
    Marketing Association (DMA) have stated that, with as many as 1
    million telemarketing representatives making 13 calls an hour,
    working 8 hours a day, it is possible that 104 million outbound
    calls are made to businesses and consumers every day. They noted
    that, of these calls, as many as 41% of them may be abandoned
    (because they get busy signals, no answer, hang-ups, or answering
    machines). *See* transcript from FTC Do-Not-Call Forum, Testimony of
    Jerry Cerasale, DMA, June 6, 2002 at 68. Another study presented to
    the FTC during its proceeding, estimates that the annual number of
    outbound calls that are answered by a consumer is 16,129,411,765
    (*i.e.,* 16 billion calls). This figure does not include those calls
    that are abandoned. James C. Miller, III, Jonathan S. Bowater,
    Richard S. Higgins, and Robert Budd, "An Economic Assessment of
    Proposed Amendments to the Telemarketing Sales Rule," June 5, 2002
    at 28, Att. 1 (prepared for the Consumer Choice Coalition and its
    members, ACI Telecentrics, Coverdell & Company, Discount Development
    Services, HSN LP d/b/a HSN and Home Shopping Network, Household
    Credit Services, MBNA America Bank, MemberWorks Incorporated,
    Mortgage Investors Corporation, Optima Direct, TCIM Inc., Trilegiant
    Corporation and West Corporation). *See Telemarketing Sales Rule,
    Final Rule,* Federal Trade Commission, 68 Fed. Reg. 4580 at 4629-30,
    n.591 (Jan. 29, 2003*) (FTC Order).*

[^29]: This figure represents telemarketing sales to consumers and
    businesses. *See* Seth Stern, "Will feds tackle telemarketers?"
    (April 15, 2002)
    \<<http://www.csmonitor.com/2002/0415/p16s01-wmcn.html>\> (citing
    Direct Marketing Association statistics).

[^30]: *See* "The Economic Impact of Direct Marketing by Telephone," a
    study presented by Direct Marketing Association Telephone Marketing
    Council, \<[http://www.third-wave.net/economics.htm]{.underline}\>
    (visited July 3, 2002).

[^31]: A predictive dialer is an automated dialing system that uses a
    complex set of algorithms to automatically dial consumers' telephone
    numbers in a manner that "predicts" the time when a consumer will
    answer the phone and a telemarketer will be available to take the
    call. Such software programs are set up in order to minimize the
    amount of downtime for a telemarketer. In some instances, a consumer
    answers the phone only to hear "dead air" because no telemarketer is
    free to take the call. *See* *Telemarketing Sales Rule, Notice of
    Proposed Rulemaking*, Federal Trade Commission, 67 Fed. Reg. 4492 at
    4522 (January 30, 2002) (*FTC Notice*).

[^32]: Each telemarketing company can set its predictive dialer software
    for a predetermined abandonment rate (*i.e.*, the percentage of
    hang-up calls the system will allow). The higher the abandonment
    rate, the higher the number of hang-up calls. High abandonment rates
    increase the probability that a customer will be on the line when
    the telemarketer finishes each call. It also, however, increases the
    likelihood that the telemarketer will still be on a previously
    placed call and not be available when the consumer answers the
    phone, resulting in "dead air" or a hang-up. *See FTC Notice*, 67
    Fed. Reg. at 4523.

[^33]: 47 U.S.C. § 227(b)(1)(C) and 47 C.F.R. § 64.1200(a)(3).

[^34]: The Commission or the Commission's Enforcement Bureau have issued
    forfeiture orders totaling \$1.56 million for violations of the
    TCPA's prohibition on unsolicited fax advertisements. The Commission
    has also proposed a \$5,379,000 forfeiture against a fax
    broadcaster. *See Fax.com, Inc. Apparent Liability for Forfeiture*,
    Notice of Apparent Liability for Forfeiture, 17 FCC Rcd 15927 (2002)
    *(Fax.com NAL), stayed Missouri v. American Blast Fax*, No.
    4:00CV933SNL (E.D. Mo. Aug. 29, 2002). The Enforcement Bureau has
    also issued 189 citations for such prohibited faxes. For a
    description of the Commission's enforcements actions involving the
    TCPA, *see* \<<http://www.fcc.gov/eb/tcd/working.html>\>. Under
    section 503 of the Act, the Commission is required in an enforcement
    action to issue a warning citation to any violator that does not
    hold a Commission authorization. Only if the non-licensee violator
    subsequently engages in conduct described in the citation may the
    Commission propose a forfeiture, and the forfeiture may only be
    issued as to the subsequent violations. *See* 47 U.S.C. §§
    503(b)(5), (b)(2)(C).

[^35]: *See, e.g., Fax.com NAL*, 17 FCC Rcd at 15932-33, para. 9, which
    describes a medical doctor's complaint about unsolicited fax
    advertisements he received on a line that is reserved for the
    receipt of patient medical data.

[^36]: *See FTC Order*, 68 Fed. Reg. at 4580. The FTC adopted its
    Telemarketing Sales Rule, 16 C.F.R. Part 310, on August 16, 1995,
    pursuant to the Telemarketing Consumer Fraud and Abuse Prevention
    Act (Telemarketing Act), 15 U.S.C. §§ 6101-6108. The Telemarketing
    Act, which was signed into law on August 16, 1994, directed the FTC
    to issue a rule prohibiting deceptive and abusive telemarketing acts
    or practices. *FTC Notice,* 67 Fed. Reg*.* at 4492-93.

[^37]: "Scrubbing" refers to comparing a do-not-call list to a company's
    call list and eliminating from the call list the telephone numbers
    of consumers who have registered a desire not to be called.

[^38]: Despite these jurisdictional limitations, the FTC stated that it
    can reach telemarketing activity conducted by non-exempt entities.
    Therefore, it maintains that when an exempt financial institution,
    telephone company, insurance company, airline, or nonprofit entity
    conducts its telemarketing campaign using a third-party telemarketer
    not exempt from the amended TSR, then that campaign is subject to
    the provisions of the TSR. *See FTC Order*, 68 Fed. Reg. 4580 at
    4587.

[^39]: The FTC's national do-not-call registry and other amendments to
    the TSR have been challenged on grounds that a national do-not-call
    registry violates the First Amendment and that the FTC exceeded its
    statutory authority under the Telemarketing Consumer Fraud and Abuse
    Prevention Act. *See Mainstream Marketing Services, Inc. v. FTC*,
    No. 03-N-0184 (D. Colo. filed Jan. 29, 2003)*. See also U.S.
    Security et al v. FTC*, Civ. No. 03-122-W (W.D. Okla. filed Jan. 29,
    2003). On March 26, 2003, the U.S. District Court for the Western
    District of Oklahoma denied plaintiffs' Motion for Preliminary
    Injunction of the FTC's abandoned call rules, stating that
    plaintiffs "have failed to show a substantial likelihood that they
    will prevail on the merits of their challenges to the Final Rule."
    *See U.S. Security et al. vs. FTC*, No. Case CIV-03-122-W (W.D.
    Okla. March 26, 2003).

[^40]: *See* *FTC Order*, 68 Fed. Reg. 4580 at 4641.

[^41]: *See* FTC press materials at
    \<[http://www.ftc.gov/opa/2003/06/dncaccelerated.htm\>]{.underline}
    (accessed June 3, 2003).

[^42]: *See FTC Order*, 68 Fed. Reg. 4580 at 4641-45; 16 C.F.R. §§
    310.4(b)(1)(iv) and 310.4(b)(4).

[^43]: *See FTC Order*, 68 Fed. Reg. 4580 at 4623-28; 16 C.F.R. §
    310.4(a)(7).

[^44]: Alabama, Alaska, Arizona, Arkansas, California, Colorado,
    Connecticut, Florida, Georgia, Idaho, Illinois, Indiana, Kansas,
    Kentucky, Louisiana, Maine, Massachusetts, Michigan, Minnesota,
    Mississippi, Missouri, Montana, New Jersey, New Mexico, New York,
    North Dakota, Oklahoma, Oregon, Pennsylvania, South Dakota,
    Tennessee, Texas, Utah, Vermont, Wisconsin and Wyoming have no-call
    laws. Of these states, Connecticut, Maine, Michigan, Pennsylvania,
    Vermont, and Wyoming require telemarketers to use the DMA's
    Telephone Preference Service (TPS) list. *See infra* note 47.
    Alaska's statute requires telephone companies to place a black dot
    in the telephone directory by the names of consumers who do not wish
    to receive telemarketing calls.

[^45]: States that are considering laws to create state-run do-not-call
    lists are Delaware, District of Columbia, Hawaii, Iowa, Maryland,
    Michigan, Nebraska, Nevada, North Carolina, Ohio, Rhode Island,
    South Carolina, Washington, and West Virginia.

[^46]: In Indiana, more than 1,000,000 residential telephone numbers
    have been submitted to the State's do-not-call list. In Missouri,
    more than 1,000,000 residential telephone numbers are now enrolled
    in the State's do-not-call database, placing approximately 40% of
    the State's households on that State's do-not-call list. In
    Tennessee, 762,000 telephone numbers have been registered,
    representing an estimated 33% of all households. In New York, the
    number of residential telephone numbers enrolled on that State's
    do-not-call list is nearly 2 million. Connecticut's do-not-call list
    contains nearly 400,000 telephone numbers, and Georgia's is nearing
    360,000. Colorado has 977,000 registered phone numbers, almost half
    of the number of residential phone lines in the state. Texas has
    more than 782,000 registered phone lines. Kentucky has 740,000
    registered phone lines, representing 46% of Kentucky residents. The
    Kansas list contains more than 367,000 phone lines. Approximately
    1,600,000 residents enrolled in Pennsylvania's registry in less than
    six weeks. *See* NAAG Comments at 6, n.5.

[^47]: *See, e.g.,* Wyoming (Wyo. Stat. Ann. § 40-12-301) and Maine (Me.
    Rev. Stat. Ann. tit. 32, § 14716 (2003). Established in 1985, the
    DMA's Telephone Preference Service (TPS) is a list of residential
    telephone numbers for consumers who do not wish to receive
    telemarketing calls. The DMA requires its members to adhere to the
    list. Telemarketers who are not members of DMA are not required to
    use the list, but may purchase the TPS for a fee. *See*
    \<[http://www.dmaconsumers.org/offtelephonelist.html]{.underline}\>
    (accessed April 8, 2003).

[^48]: *See, e.g.,* Connecticut (Conn. Gen. Stat. Ann. § 42-288a);
    Indiana (H.B. 1222, to be codified at Ind. Code Ann. § 24.4.7);
    Missouri (Mo. Rev. Stat. § 407.1098); and Tennessee (Tenn. Code Ann.
    § 65-4-404 (2002)); *see also* rules at Tenn. Comp. R & Regs. Chap.
    1220-4-11).

[^49]: *See* Ga. Code Ann. § 46-5-27 (2002); *see also* rules at Ga.
    Comp. R & Regs. R. 515-14-1.

[^50]: *See* H.B. 472, to be codified at Tex. Bus. & Com. Code Ann. §
    43.001.

[^51]: *See* Or. Rev. Stat. § 646.574.

[^52]: *See* Mo. Rev. Stat. § 407.1098.

[^53]: *See* Illinois H.B. 3407.

[^54]: *See* \<<http://nocall.doj.state.ca.us/>\> (accessed April 8,
    2003).

[^55]: *See* *FTC Order*, 68 Fed. Reg. 4580 at 4641.

[^56]: *See* FTC Order, 68 Fed. Reg. 4580 at 4641.

[^57]: *Rules and Regulations Implementing the Telephone Consumer
    Protection Act of 1991*, Notice of Proposed Rulemaking (NPRM) and
    Memorandum Opinion and Order (MO&O), 17 FCC Rcd 17459, CG Docket No.
    02-278 and CC Docket No. 92-90 (2002) *(2002 Notice).* In the MO&O,
    the Commission closed and terminated CC Docket No. 92-90 and opened
    a new docket to address the issues raised in this proceeding.

[^58]: *2002 Notice*, 17 FCC Rcd at 17468-71, paras. 13-17.

[^59]: *2002 Notice*, 17 FCC Rcd at 17473-76, paras. 23-27.

[^60]: *2002 Notice*, 17 FCC Rcd at 17477-81, paras. 30-35.

[^61]: *2002 Notice*, 17 FCC Rcd at 17482-84, paras. 37-40.

[^62]: *2002 Notice*, 17 FCC Rcd at 17468-71, paras. 13-17.

[^63]: *2002 Notice*, 17 FCC Rcd at 17487-96, paras. 49-66.

[^64]: *See* *FTC Notice*, 67 Fed. Reg. 4492 and *FTC Order*, 68 Fed.
    Reg. 4580.

[^65]: *2002 Notice,* 17 FCC Rcd at 17497-501, paras. 70-80.

[^66]: On December 20, 2002, the Commission extended its reply comment
    period until January 31, 2003. *See Consumer & Governmental Affairs
    Bureau Announces An Extension of Time To File Reply Comments on the
    Telephone Consumer Protection Act (TCPA) Rules*, Public Notice, DA
    02-3554 (rel. Dec. 20, 2002).

[^67]: *See* H.R. R[ep]{.smallcaps}. No. 108-8 at 4 (2003), *reprinted
    in* 2003 U.S.C.C.A.N. 688, 671.

[^68]: *Id*.

[^69]: The Do-Not-Call Act provides that the FTC and FCC shall each
    transmit a report to Congress which shall include: "(1) an analysis
    of the telemarketing rules promulgated by both the Federal Trade
    Commission and the Federal Communications Commission; (2) any
    inconsistencies between the rules promulgated by each such
    Commission and the effect of any such inconsistencies on consumers,
    and persons paying for access to the registry; and (3) proposals to
    remedy any such inconsistencies." *See* Do-Not-Call Act, Sec. 4(a).

[^70]: *Rules and Regulations Implementing the Telephone Consumer
    Protection Act of 1991*, CG Docket No. 02-278, Further Notice of
    Proposed Rulemaking, FCC 03-62 (rel. March 25, 2003) *(Further
    Notice).*

[^71]: *See* Comments filed by the FTC in response to the Commission's
    *Further Notice*. *See also* NARUC Winter Committee Meetings,
    February 23-26, 2003, at which FCC and FTC staff discussed the
    national do-not-call registry and ways to harmonize federal and
    state programs; Letter from James Bradford Ramsay, NARUC General
    Counsel, to FCC filed March 14, 2003 (NARUC *ex parte*).

[^72]: 47 U.S.C. § 227(c)(1).

[^73]: 47 U.S.C. § 227(c)(1)(A).

[^74]: 47 U.S.C. § 227(c)(3).

[^75]: *See* 47 U.S.C § 227(c)(3)(A)-(L).

[^76]: 47 U.S.C. § 227(c)(4).

[^77]: 47 U.S.C. § 152(b). *See also Texas v. American Blast Fax*, 121
    F. Supp. 2d 1085 at 1087-89 (W.D. Tex. 2000), *Minnesota v. Sunbelt
    Communications and Marketing*, Civil No. 02-CV-770 (D. Minn. Sept.
    4, 2002).

[^78]: *1992* *TCPA Order*, 7 FCC Rcd at 8760, para. 14. At that time
    commenters estimated the start-up and operational costs for a
    national database in the first year could be as high as \$80
    million. *Id.* at 8758, para. 11.

[^79]: *See infra* paras. 86-96 for a discussion of the company-specific
    do-not-call requirements.

[^80]: *2002* Notice, 17 FCC Rcd at 17487-96, paras. 49-66. On December
    20, 2002, the Commission extended its reply comment period to allow
    parties an opportunity to comment on the FTC's order establishing a
    national do-not-call database for those entities over which it has
    jurisdiction. *See Consumer & Governmental Affairs Bureau Announces
    An Extension of Time To File Reply Comments on the Telephone
    Consumer Protection Act (TCPA) Rules*, Public Notice, DA 02-3554
    (rel. Dec. 20, 2002).

[^81]: *2002 Notice*, 17 FCC Rcd at 17487-88, para. 49 (also noting that
    the FTC had received over 40,000 comments in response to its Notice
    on telemarketing).

[^82]: *2002 Notice*, 17 FCC Rcd at 17464, para. 7, n.34 (citing
    estimate that as many as 104 million outbound calls are made every
    day).

[^83]: *See 2002 Notice*, 17 FCC Rcd at 17487-96, paras. 49-66.

[^84]: *See, e.g.*, Maureen Matthews Comments; Gloria Toso Comments;
    Shirley A. Weaver Comments. *See also* ACUTA Comments at 2; NACAA
    Comments at 2; Telecommunications for the Deaf Comments at 4; NJ
    Ratepayer Further Comments at 2.

[^85]: *See, e.g.*, EPIC Comments at 2-5; Private Citizens, Inc.
    Comments at 3; Teresa Wilkie Comments; Benjamin Philip Johnson
    Comments.

[^86]: *See, e.g.,* Terry L. Krodel Comments (disabled individual has
    difficulty answering phone); Brian Lawless (contends that consumers
    should not be forced to pay additional charges to stop telemarketing
    calls); J. Raymond de Varona Comments (telemarketers hang up when he
    requests to be added to do-not call list); Mandy Burkart Comments
    (elderly grandmother targeted by telemarketers). *See also* AARP
    Comments at 1 (noting that elderly consumers are often the subject
    of telemarketing fraud).

[^87]: *See, e.g.*, Emily Malek Comments; Lester D. McCurrie Comments;
    Andrea Sattler Comments; Sandra S. West Comments (receives as many
    as 20 telemarketing calls per day).

[^88]: Edwin Bailey Hathaway Comments; Cynthia Stichnoth Comments.

[^89]: *See, e.g.,* Brenda J. Donat Comments (cancer patient appreciates
    reduction in calls due to Indiana Telephone Privacy Act); Alice and
    Bill Frazee Comments; Tammy Puckett Comments (Indiana law provides
    quiet for terminally ill family member).

[^90]: *See, e.g.*, Verizon Comments at 2; Bank of America Further
    Comments at 2.

[^91]: *See, e.g.*, NAAG Comments at 8-13; New York State Consumer
    Protection Board Comments at 7; Ohio PUC Comments at 3-7; Texas PUC
    Comments at 10.

[^92]: *See, e.g.,* Bank of America Comments at 2-4 (endorse national
    list provided it establishes a uniform national standard and retains
    established business relationship); Cox Enterprises Comments at 4-9
    (would not oppose national list if established business relationship
    exemption is retained); Sprint Comments at 11-12 (state lists should
    be preempted); Verizon Wireless Comments at 4-6 (support national
    list if state lists preempted and established business relationship
    retained). *See also* DMA Further Comments at 3 (should preempt
    states); DirectTV Further Comments at 3 (preempt); Nextel Further
    Comments at 8.

[^93]: *See, e.g.*, MBA Comments at 2; NAII Comments at 2; SBC Comments
    at 6; WorldCom Comments at 17.

[^94]: *See, e.g.,* ABA Comments at 7; BellSouth Reply Comments at 5.

[^95]: *See, e.g.*, Dial America Comments at 15-18; Technion Comments at
    3-4; Vector Comments at 14-15.

[^96]: *See, e.g.*, MPA Comments at 13-14; NAA Comments at 12-14;
    Seattle Times Comments at 2; Vector Comments at 14-15.

[^97]: *See, e.g.*, MPA Comments at 4, 13-14; NAA Comments at 13; PLP
    Comments at 1.

[^98]: *See, e.g.,* March of Dimes Comments at 2; Leukemia and Lymphoma
    Society Comments; Special Olympics Hawaii Comments at 2.

[^99]: *See, e.g.*, ATA Comments at 58-91; SBC Comments at 6, 16-17;
    WorldCom Comments at 19-30.

[^100]: *See FTC Order*, 68 Fed. Reg. at 4628-33.

[^101]: The FTC has awarded a contract to AT&T Government Solutions for
    \$3.5 million to create the national registry of consumers who do
    not want to be contacted by telemarketers.

[^102]: The FTC indicates that calls will be answered by an Interactive
    Voice Response (IVR) system. Consumers will be directed to enter
    their telephone numbers. That number will then be checked against an
    automatic number information (ANI) that is transmitted with the
    call. Consumers will also be able to verify or cancel their
    registration in the same way. *See* *FTC Order*, 68 Fed. Reg. at
    4638-39.

[^103]: As discussed herein, the terms "seller" and "telemarketer" may
    refer to the same entity or separate entities. The "telemarketer" is
    the entity that actually initiates the telephone call. The "seller"
    is the entity on whose behalf the telephone call is being made.
    *See* amended 47 C.F.R. § 64.1200(f)(5) and (6). Sellers may often
    hire telemarketing entities to contact consumers on their behalf.
    *See* amended 47 C.F.R. § 64.1200(f)(7) for the definition of
    "telemarketing." Pursuant to the FTC's do-not-call program, each
    seller must pay for access to the do-not-call database. Thus,
    telemarketing entities cannot share do-not-call data among various
    client sellers.

[^104]: *See* 16 C.F.R. § 310.4(b)(2).

[^105]: The FTC has concluded, however, that calls on behalf of
    charitable organizations will be subject to the company specific
    do-not-call provisions. *See FTC Order*, 68 Fed. Reg. at 4629.

[^106]: The FTC defines an "established business relationship" as a
    relationship between a seller and consumer based on: (1) the
    consumer's purchase, rental, or lease of the seller's goods or
    services or a financial transaction between the consumer and seller,
    within the *eighteen* months immediately preceding the date of a
    telemarketing call; or (2) the consumer's inquiry or application
    regarding a product or service offered by the seller, within the
    *three* months immediately preceding the date of a telemarketing
    call. 16 C.F.R. § 310.2(n). Regarding the interplay between the
    established business relationship and do-not-call rules, the FTC
    concluded that if the consumer continues to do business with the
    seller after asking not to be called, the consumer cannot be deemed
    to have waived their company-specific do-not-call request. *FTC
    Order*, 68 Fed. Reg. at 4634.

[^107]: *See* 16 C.F.R. § 310.4(b)(3).

[^108]: *FTC Order*, 68 Fed. Reg. at 4638-41.

[^109]: *See also* H.R. R[ep]{.smallcaps}. N[o]{.smallcaps}. 108-8 at 3
    (2003), reprinted in 2003 U.S.C.C.A.N. 688, 670 ("\[i\]t is the
    strongly held view of the Committee that a national do-not-call list
    is in the best interest of consumers, businesses and consumer
    protection authorities. This legislation is an important step toward
    a one-stop solution to reducing telemarketing abuses.").

[^110]: *See, e.g.*, Joseph A. Durle Comments (forced to turn phone off
    due to constant telemarketing calls and missed call that family
    member had a stroke); John D. Milhous Comments; Gregory Reichenbach
    Comments; Christopher C. Parks Comments (receives numerous calls
    every day).

[^111]: *See* 47 U.S.C. § 227(c)(1)(A).

[^112]: *See TCPA*, Section 2(9), *reprinted in* 7 FCC Rcd at 2744.

[^113]: In the *FTC Order*, the FTC outlines in detail how the national
    registry will be administered, including how consumers may register
    and how sellers may purchase the list. *See also infra*, Enforcement
    Priorities section, paras. 211-214.

[^114]: We decline to extend the effective date for the national
    do-not-call rules beyond October 1, 2003. *See Ex Parte
    Presentations* from WorldCom to FCC, filed May 23, 2003 and June 16,
    2003 (advocating a 9.5-month implementation period for the national
    do-not-call list requirements).

[^115]: *See* H.R. J. Res. 2, 108^th^ Congress at 96 (2003)
    (*Consolidated Appropriations Resolution*). *See also* H.R.
    R[ep]{.smallcaps}. N[o]{.smallcaps}. 108-8 at 3 (2003), reprinted in
    2003 U.S.C.C.A.N. 688, 670 ("\[i\]t is the strongly held view of the
    Committee that a national do-not-call list is in the best interest
    of consumers, businesses and consumer protection authorities. This
    legislation is an important step toward a one-stop solution to
    reducing telemarketing abuses.").

[^116]: *See* Do-Not-Call Act, Sec. 3.

[^117]: *See, e.g.*, Sean Herriott Comments (receives numerous
    telemarketing calls each day); Lester D. McCurrie (receives between
    8-12 call per day); David K. McClain Comments; Greg Rademacher
    Comments (receives so many calls that he now refuses to answer the
    phone); John Rinderle Comments; Steven D. Thorton Comments; Sandra
    West Comments (receives 20 calls per day).

[^118]: *See supra* para. 8.

[^119]: *See, e.g.*, Karen M. Meyer Comments (86 year-old receives as
    many as 10 solicitation calls per day); Vivian Sinclair Comments (85
    year old with cane receives numerous telephone solicitations); Mr.
    and Mrs. Joseph Stephanik Comments (works at night and telemarketing
    calls interfere with sleep); Mavis Selway Comments (husband who
    works at night must answer telemarketing calls during day).

[^120]: *See* Telecommunications for the Deaf Comments at 2-3 (noting
    that telemarketers often lack TTY or telecommunications relay
    service).

[^121]: *See* H.R. R[ep]{.smallcaps}. N[o]{.smallcaps}. 108-8 at 3
    (2003), *reprinted in* 2003 U.S.C.C.A.N. 688, 670 ("\[i\]t is the
    strongly held view of the Committee that a national do-not-call list
    is in the best interest of consumers, businesses and consumer
    protection authorities.").

[^122]: *See, e.g.*, LSSi Comments at 5-6; NCS Comments at 2-4.

[^123]: As noted above, the FTC has awarded a contract to AT&T
    Government Solutions for \$3.5 million to create the national
    registry. The Congressional Budget Office estimates that the FTC
    will collect and spend a total of about \$73 million in fees over
    2003-2008 to implement the national database. *See* H.R. [Rep.
    No.108]{.smallcaps}-8 at 6 (2003), *reprinted in* 2003 U.S.C.C.A.N.
    688, 673.

[^124]: *FTC Order*, 68 Fed. Reg. at 4640.

[^125]: *See FTC Order*, 68 Fed. Reg. at 4640. Our rules previously
    required a company-specific do-not-call request to be honored for
    ten years. *See* 47 C.F.R. § 64.1200(e)(2)(vi).

[^126]: The term "ANI" refers to the delivery of the calling party's
    billing number by a local exchange carrier to any interconnecting
    carrier for billing or routing purposes, and to the subsequent
    delivery of such number to end users. 47 C.F.R. § 64.1600(b).

[^127]: *FTC Order*, 68 Fed. Reg. at 4640.

[^128]: As noted above, the "seller" and "telemarketer" may be the same
    entity or separate entities. Each entity on whose behalf the
    telephone call is being made must purchase access to the do-not-call
    database.

[^129]: *See* 47 U.S.C. § 227(c)(3)(K). *See also* 16 C.F.R. §
    310.4(b)(2). We also note that telemarketers will be prohibited from
    selling the list to others or dividing the costs of accessing the
    list among various client sellers. Such action would threaten the
    financial support for maintaining the database.

[^130]: *See, e.g.,* AT&T Wireless Reply Comments at 22; Charles
    Ferguson Comments; City of New Orleans Comments at 12; Texas Office
    of Public Utility Counsel Comments at 7. *See also* NAAG Comments at
    35-36 contending that public safety implications may arise if
    wireless consumers receive unsolicited marketing calls while
    operating automobiles.

[^131]: 47 U.S.C. § 227(b)(1)(iii).

[^132]: Nextel Comments at 19. We note that section 227(c )(1) uses the
    phrase "residential telephone subscribers" and that section
    227(c)(3), which more specifically discusses the do-not-call
    database, uses the phrase "residential subscribers." Neither of
    these terms is defined in the TCPA. Thus, we see no basis in the
    legislative language or history for considering them to be
    materially different. Nor do we see a basis for distinction in
    common usage. Therefore, we will interpret them to be synonymous and
    will refer to both by using the term "residential subscribers."

[^133]: Nextel Comments at 19.

[^134]: Nextel Comments at 21.

[^135]: Nextel Comments at 20.

[^136]: For example, the Commission recently relied on wireless
    broadband PCS substitution to support "Track A" findings in two
    section 271 proceedings where residential customers in New Mexico
    and Nevada had replaced their landline service with wireless
    service. *See* *Application by SBC Communications Inc., Nevada Bell
    Telephone Company, and Southwestern Bell Communications Services,
    Inc.*, *for Authorization to Provide In-Region, InterLATA Services
    in Nevada*, WC Docket No. 03-10, Memorandum Opinion and Order, FCC
    03-80 at paras. 16 - 26 (rel. April 14, 2003); *see also* Federal
    Communications Commission, Seventh Annual Report and Analysis of
    Competitive Market Conditions With Respect to Commercial Mobile
    Services at 32-36 (*Seventh Annual CMRS Competition Report*).

[^137]: 47 U.S.C. § 227(b)(1)(A)(iii).

[^138]: S. R[ep]{.smallcaps}. N[o]{.smallcaps}. 102-178 at 1 (noting
    that telephone solicitations are both a nuisance and an invasion of
    privacy).

[^139]: This presumption is only for the purposes of section 227 and is
    not in any way indicative of any attempt to classify or regulate
    wireless carriers for purposes of other parts of Title II.

[^140]: We also note that numerous alternative marketing outlets remain
    available to sellers, such as newspapers, television, radio, and
    direct mail.

[^141]: Such calls may be prohibited if they serve as a pretext to an
    otherwise prohibited advertisement or a means of establishing a
    business relationship. Moreover, responding to such a "survey" does
    not constitute express permission or establish a business
    relationship exemption for purposes of a subsequent telephone
    solicitation. *See* H.R. R[ep]{.smallcaps}. N[o]{.smallcaps}.
    102-317 at 13 ("\[T\]he Committee does not intend the term
    'telephone solicitation' to include public opinion polling, consumer
    or market surveys, or other survey research conducted by telephone.
    A call encouraging a purchase, rental, or investment would fall
    within the definition, however, even though the caller purports to
    be taking a poll or conducting a survey.").

[^142]: *See FTC Order,* 68 Fed. Reg. at 4645-46.

[^143]: *See* 16 C.F.R. § 310.4(b)(3).

[^144]: *See* 47 U.S.C. § 227(c)(1)(A).

[^145]: *See* "New telemarketer tool trumps TeleZapper," CNN.com
    (February 26, 2003)
    \<<http://edition.cnn.com/2003/TECH/ptech/02/26/telemarket.tool.ap/>\>
    (noting development of software that allows telemarketers to
    circumvent the telezapper and other blocking devices).

[^146]: *See, e.g.*, Leslie Price Comments (telezapper ineffective);
    Josephine Presley Comments (call blocking ineffective).

[^147]: For example, section 227(c) prohibits consumers from being
    charged to place their number on a national do-not-call list. *See*
    47 U.S.C. § 227(c)(3)(E).

[^148]: *See 1992 TCPA Order*, 7 FCC Rcd at 8761-62, paras. 16-17.

[^149]: *See* 47 U.S.C. § 227(c)(4)(C) (requiring the Commission to
    consider "whether the needs of telemarketers operating on a local
    basis could be met through special markings of area white page
    directories"). This conclusion is consistent with the Commission's
    conclusion in 1992.

[^150]: *See* Letter from Michael Del Casino, AT&T, to Marlene Dortch,
    FCC, dated March 18, 2003.

[^151]: *See infra* para. 54.

[^152]: This finding is dependent, in large part, on conclusions that we
    have reached elsewhere in this order. For example, our conclusion
    that the McCarran-Ferguson Act does not necessarily prohibit the
    application of the national registry to insurance companies; rather,
    the implications of the McCarran-Ferguson Act will need to be
    evaluated on a case-by-case basis. The Commission may seek further
    clarification or authority from Congress as necessary to support
    these conclusions.

[^153]: *See supra* note 39.

[^154]: *See, e.g.*, NCTA Comments at 6; NAA Comments at 14; MBA Further
    Comments at 4.

[^155]: 47 U.S.C. § 227(a)(3).

[^156]: *See* amended 47 C.F.R. § 64.1200(f)(3).

[^157]: 47 U.S.C. § 227(a)(3). *See also* H.R. R[ep]{.smallcaps}.
    N[o]{.smallcaps}. 102-317 at 13 (1991) (suggesting that Congress did
    not believe such prior express permission need be in writing) We
    believe that in discussing the form in which *prior express
    permission* must be given, Congress was addressing an exemption to
    the definition of telephone solicitation. Here, we are addressing
    the type of prior express permission that would allow calls to
    consumers who already have indicated that they do not wish to
    receive telemarketing calls (by registering on the do-not-call
    list).

[^158]: For purposes of this exemption, the term "signed" shall include
    an electronic or digital form of signature, to the extent that such
    form of signature is recognized as a valid signature under
    applicable federal or state contract law.

[^159]: *See, e.g.*, Association of Fundraising Professionals Comments
    at 3-4; Fund for Public Interest Comments at 2; March of Dimes
    Comments at 2; Special Olympics of Hawaii Comments.

[^160]: 47 U.S.C. § 227(a)(3).

[^161]: *See* H.R. R[ep]{.smallcaps}. N[o]{.smallcaps}. 102-317 at 16
    (1991).

[^162]: *See, e.g.*, Fund for Public Interest Comments at 2; March of
    Dimes Comments at 2; Non-for-Profit Coalition Comments at 11-13;
    Special Olympics Hawaii Comments. *But see* Wayne G. Strang Comments
    at 7-8; Michael C. Worsham Comments at 10. Commenters also argue
    that restrictions imposed on tax-exempt nonprofit organizations or
    organizations acting on their behalf are subject to more stringent
    scrutiny under the First Amendment as noncommercial speech. *See*
    NPCC Comments at 15-18.

[^163]: *See, e.g.*, American Red Cross Comments at 2; America's Blood
    Centers Comments at 1.

[^164]: *See, e.g.,* Newspaper Association of America Comments at 12-14
    (noting that newspapers are holders of second-class mail permits);
    Personal Legal Plans Comments at 5 (contending that small businesses
    should be exempt); Seattle Times Comments at 2 (proposing exemption
    for newspapers); Vector Comments at 7 (proposing exemption for
    entities that make a *de minimis* number of calls); Ameriquest
    Further Comments at 2 ("face-to-face" exemption).

[^165]: In determining whether a telemarketer is considered a \'friend\'
    or \'acquaintance\' of a consumer, we will look at, among other
    things, whether a reasonable consumer would expect calls from such a
    person because they have a close or, at least, firsthand
    relationship. If a complaining consumer were to indicate that a
    relationship is not sufficiently personal for the consumer to have
    expected a call from the marketer, we would be much less likely to
    find that the personal relationship exemption is applicable. While
    we do not adopt a specific cap on the number of calls that a
    marketer may make under this exemption, we underscore that the
    limited nature of the exemption creates a strong presumption against
    those marketers who make more than a limited number of calls per
    day.

[^166]: We note that this conclusion is consistent with Congress'
    rationale in exempting tax-exempt nonprofit organizations and
    established business relationships from the definition of telephone
    solicitation. *See* H.R. Rep. No. 102-317 at 14 and 16 (1991).

[^167]: 47 U.S.C § 227(c)(1)(E).

[^168]: *See* Vector Further Comments at Att. 2. Vector makes
    approximately 4 million calls per year. Vector Comments at 6.

[^169]: *See, e.g.,* Ameriquest Comments at 14; Vector Comments at 6-7.
    Such calls may, however, be permissible when they fall within
    exemptions for personal or established business relationships as
    discussed herein.

[^170]: *FTC Order*, 68 Fed. Reg. 4655-56.

[^171]: For example, Vector suggests that the Commission exempt
    individual direct sellers who make no more than 20 calls per day.
    Vector Comments at 8-10.

[^172]: Vector Further Comments at 4. Vector makes approximately 4
    million calls per year. Vector Comments at 6.

[^173]: *See* ACLI Further Comments at 1-3; Stonebridge Further Comments
    at 5-7; Cendant Further Comments at 3-4; NAII Further Comments at 3.
    We note that many other commenters representing insurance interests
    did not raise this issue before or during the Further Notice comment
    period.

[^174]: 15 U.S.C. § 1012(a).

[^175]: 15 U.S.C. § 1012(b).

[^176]: *See* ACLI Further Comments at 1-2.

[^177]: *See* 15 U.S.C. § 1012(b); *see also* *The Chair King, Inc. v.
    Houston Cellular Corp*., 1995 WL 1760037 (S.D. Tex. 1995), *vacated
    for lack of subject matter jurisdiction* 131 F.3d 507 (5th Cir.
    1997).

[^178]: *The Chair King, Inc. v. Houston Cellular Corp*., 1995 WL
    1760037 (S.D. Tex. 1995).

[^179]: *See Chair King*, 1995 WL 1760037 at 3 (*citing SEC v. National
    Securities Inc*., 393 U.S. 453, 460 (1960) and *FTC v. National
    Casualty Co*., 357 U.S. 560 (1958)).

[^180]: *See Chair King*, 1995 WL 1760037 at 4.

[^181]: We note that the TCPA's prohibition does not specifically
    reference insurance advertising. The TCPA also permits facsimile
    advertising to persons who have given their prior express invitation
    or permission. See 47 U.S.C. §§ 227(b)(1)(C) and (a)(4).

[^182]: NAII explains that "\[s\]tate insurance codes prohibit a variety
    of unfair trade practices, such as rebating, deceptive advertising,
    inequitable claim settlement and unfair discrimination." *See* NAII
    Further Comments at 2.

[^183]: *See, e.g., Merchant Home Delivery Serv. Inc. v. Frank B. Hall &
    Co. Inc.*, 50 F.3d 1486, 1492 (9th Cir. 1995) (holding federal
    statute prohibiting acts also prohibited under state law not to
    "invalidate, impair, or supersede" state law under
    McCarran-Ferguson); *United Farm Bureau Mut. Ins. Co. v.
    Metropolitan Human Relations Comm'n,* 24 F.3d 1008, 1016 (7th Cir.
    1994) (holding duplicate prohibition of redlining under Indiana law
    not to preempt Fair Housing Act under McCarran-Ferguson Act).

[^184]: *See, e.g., Mackey v. Nationwide Ins. Companies*, 724 F.2d 419,
    421 (4th Cir. 1984).

[^185]: *See U.S. v. Calvin*, 39 F.3d 1299, 1305 (5th Cir. 1994) (noting
    that government charges of fraud not barred by McCarran-Ferguson Act
    where interest in fraud protection is completely compatible with
    state\'s regulatory interests).

[^186]: *See* 47 U.S.C. § 227(f)(1).

[^187]: 47 U.S.C. § 227(c)(4)(A)-(B) (emphasis added).

[^188]: *See* 47 U.S.C. § 227(c)(4)(B)(iii).

[^189]: *See also* Letter from Michael Del Casino, AT&T, to Marlene
    Dortch, FCC, dated March 18, 2003.

[^190]: *FTC Order*, 68 Fed. Reg. at 4638-39.

[^191]: *FTC Order*, 68 Fed. Reg. at 4639.

[^192]: *See also* 16 C.F.R. § 310.4(b)(1)(iii)(B).

[^193]: *FTC Order*, 68 Fed. Reg. at 4640.

[^194]: *FTC Order*, 68 Fed. Reg. at 4640.

[^195]: *Telemarketing Sales Rule Fees*, 68 Fed. Reg. 16238 (April 3,
    2003) (*FTC Fees Notice*). The FTC has proposed that sellers be
    charged \$29 per area code with a maximum annual fee of \$7,250 for
    access to the entire national database. Sellers may request access
    to five or less areas codes for free.

[^196]: *FTC Order*, 68 Fed. Reg. at 4640.

[^197]: *FTC Order*, 68 Fed. Reg. at 4647.

[^198]: Appropriate state and federal regulators will be capable of
    verifying when the telemarketer last accessed the list. *FTC Order*,
    68 Fed. Reg. at 4641.

[^199]: *FTC Order*, 68 Fed. Reg. at 4640.

[^200]: In fact, section 227(e)(2) prohibits states from using any
    database that does not include the part of the national database
    that relates to such state. *See* 47 U.S.C. § 227(e)(2).

[^201]: *See FTC Order*, 68 Fed. Reg. at 4641.

[^202]: *See supra* para. 32.

[^203]: *Central Hudson Gas & Elec. v. Pub. Serv. Comm. of N.Y.*, 447
    U.S. 557 (1980). NAAG argues that *Central Hudson* may not even be
    the appropriate analytical framework to determine the
    constitutionality of regulations implementing the national
    do-not-call registry, since "\[f\]ar from being an impermissible
    regulation of speech, the registry merely works to prevent 'a form
    of trespass.'" NAAG Comments at 34. We would note, however, that the
    Supreme Court has analyzed other measures that protected residential
    privacy as restrictions on commercial speech. *See Florida Bar v.
    Went For It, Inc.*, 515 U.S. 618 (1995) (applied *Central Hudson*
    analysis to Florida Bar rules that prohibited lawyers from using
    direct mail to solicit personal injury or wrongful death clients
    within 30 days of accident.) *See also State of Missouri v. American
    Blast Fax,* 323 F.3d 649 (8th Cir. 2003) (*American Blast Fax*),
    *pet. for rehearing pending* and *Destination Ventures* v. *Federal
    Communications Commission*, 46 F.3d 54 (9th Cir.1995) (*Destination
    Ventures*), where both the Eighth and Ninth Circuits applied the
    *Central Hudson* analysis to the TCPA provisions banning unsolicited
    fax advertising.

[^204]: *See* *Kathryn Moser v. Federal Communications Commission*, 46
    F.3d 970 (9th Cir. 1995) (*Moser*) *cert. denied*, 515 U.S. 1161
    (1995) (upholding ban on prerecorded telephone calls); *American
    Blast Fax* (upholding ban on unsolicited fax advertising) and
    *Destination Ventures* (upholding ban on unsolicited fax
    advertising).

[^205]: *Central Hudson*, 447 U.S. at 566. Specifically, the Court found
    that "\[f\]or commercial speech to come within the First Amendment,
    it at least must concern lawful activity and not be misleading.
    Next, it must be determined whether the asserted governmental
    interest to be served by the restriction on commercial speech is
    substantial. If both inquiries yield positive answers, it must then
    be decided whether the regulation directly advances the governmental
    interest asserted, and whether it is not more extensive than is
    necessary to serve that interest." *Id*. at 557.

[^206]: *Frisby v. Schultz*, 487 U.S. 474, 485. *See also Federal
    Communications Commission v. Pacifica Foundation,* 438 U.S. 726, 748
    (1978) ("\[I\]n the privacy of the home, ... the individual's right
    to be left alone plainly outweighs the First Amendment rights of an
    intruder.").

[^207]: *Rowan v. United States Post Office*, 397 U.S. 728 at 737-738
    (1970); s*ee also Martin v. City of Struthers*, 319 U.S. 141 (1943),
    in which the Court struck down a ban on door-to-door solicitation
    because it "substituted the judgment of the community for the
    judgment of the individual householder," *id.* at 144, but noted in
    *dicta* that a regulation "which would make it an offense for any
    person to ring a bell of a householder who has appropriately
    indicated that he is unwilling to be disturbed" would be
    constitutional. *Id.* at 148.

[^208]: H.R. R[ep]{.smallcaps}. N[o]{.smallcaps}. 102-317 at 2 (1991).

[^209]: *See supra* para. 8.

[^210]: *See supra* para. 19.

[^211]: *Florida Bar* v. *Went For It, Inc.,* 515 U.S. 618, 626 (1995)
    (citations omitted).

[^212]: *Id.* at 628 (citation omitted).

[^213]: *See, e.g.*, Brenda J. Donat Comments; Alice and Bill Frazee
    Comments; Tammy Packett Comments.

[^214]: *See e.g.*, H.R. R[ep]{.smallcaps}. N[o]{.smallcaps}. 108-8 at 3
    (2003), *reprinted in* 2003 U.S.C.C.A.N. 688, 670 ("\[i\]t is the
    strongly held view of the Committee that a national do-not-call list
    is in the best interest of consumers, businesses and consumer
    protection authorities. This legislation is an important step toward
    a one-stop solution to reducing telemarketing abuses.").

[^215]: *See, e.g.*, ATA Comments at 85-88 and WorldCom Comments at
    27-33.

[^216]: *United States v. Edge Broadcasting Company*, 509 U.S. 418, 434
    (1993). *See also* *Moser v. FCC*, 46 F.3d at 975 ("Congress may
    reduce the volume of telemarketing calls without completely
    eliminating the calls.").

[^217]: H.R. R[ep]{.smallcaps}. N[o]{.smallcaps}. 102-317 at 16 (1991).

[^218]: *See American Blast Fax* and *Destination Ventures*.

[^219]: We reject Vector's argument that because its direct sellers and
    others make a *de minimis* number of calls relative to the
    high-volume of calls that telemarketers make, that the national
    do-not-call registry, as applied to companies like Vector's, "would
    not directly or materially advance the government's interest."
    Vector Comments at 12-13. The Supreme Court has held, in applying
    *Central Hudson's* second prong, that the state does not have to
    demonstrate that the government's interest is advanced as applied to
    every case. *See Ward v. Rock Against Racism*, 491 U.S. 781, 801
    (1989) ("\[T\]he validity of the regulation depends on the relation
    it bears to the overall problem the government seeks to correct, not
    on the extent to which it furthers the government's interest in an
    individual case."); *Edge Broadcasting*, 509 U.S. 418, *discussing*
    *Ohralik* *v. Ohio State Bar Assn.,* 436 U.S. 447 (1978) ("\[T\]he
    State was entitled to protect its interest by applying a
    prophylactic rule to those circumstances generally; we declined to
    go further and to prove that the state interests supporting the rule
    actually were advanced by applying the rule in ... \[the\]
    particular case.").

[^220]: *Florida Bar*, 515 U.S. 618, 632.

[^221]: *Id.*

[^222]: *Id*. at 624.

[^223]: *Moser*, 46 F.3d at 975; s*ee also American Blast Fax,* 323 F.3d
    at 658-60 (TCPA's ban on unsolicited faxes was not more extensive
    than necessary to "prevent ... unwanted fax advertising from
    shifting advertising costs to unwilling consumers and interfering
    with their fax machines."); *Destination Ventures* (FCC sustained
    its burden of demonstrating reasonable fit between interest in
    preventing shift of advertising costs to consumers and banning
    unsolicited commercial faxes.).

[^224]: *See Florida Bar*, 515 U.S. at 633-34.

[^225]: *See supra* para. 19.

[^226]: *See supra* para. 39.

[^227]: *See supra* paras. 30-32. We also reject Vector's argument that
    the failure in our rules to provide an exemption for direct sellers
    and others who make a *de minimis* number of calls means that our
    regulations do not meet the requirement of *Central Hudson's* third
    prong of being "narrowly tailored to ensure that ... \[they are\]...
    no more extensive than necessary to serve the governmental
    interest." Vector Comments at 10, quoting *Central Hudson*, 447 U.S.
    at 565-66. As stated above, the Supreme Court requires a "not
    necessarily perfect but, reasonable" fit, *Florida Bar*, 515 U.S. at
    632. In upholding a ban which prohibited lawyers from using direct
    mail to solicit personal injury or wrongful death clients within 30
    days of an accident, even in cases where the injuries or grief was
    relatively minor, the Court held that, "We find little deficiency in
    the ban's failure to distinguish among injured Floridians by the
    severity of their pain or the intensity of their grief.... The Bar's
    rule is reasonably well tailored to its stated objective." *Id.* at
    633. Similarly, we find our regulations implementing the national
    do-not-call registry do not need to provide for an exemption for
    direct sellers and others who make a *de minimis* number of calls in
    order to be a "reasonable fit" between the governmental ends and
    means.

[^228]: *See* ATA Comments at 64-79 and WorldCom Comments at 36-38.

[^229]: *City of Cincinnati v. Discovery Network Inc. et al,* 507 U.S.
    410 at 430 (1993).

[^230]: *Id.* at 428 (citation omitted).

[^231]: *Id.* at 429.

[^232]: *Id.* at 429-30.

[^233]: H.R. R[ep]{.smallcaps}. N[o]{.smallcaps}. 102-317, at 16 (1991).
    ATA asserts that we cannot give weight to Congress' findings to
    support our decision to exclude non-profit organizations from our
    regulations implementing the do-not-call registry. ATA Comments at
    60-61. ATA argues that we may only consider the record compiled in
    this proceeding and that its market survey of consumer attitudes
    regarding telemarketing commissioned in November 2002 calls into
    question the validity of the Congressional findings distinguishing
    between non-profit and commercial calls. ATA Comments at 73-74. We
    disagree. As a preliminary matter, it is not clear to us that ATA's
    data support its assertion that consumers make no distinction
    between commercial and charitable calls. For example, while ATA does
    not provide exact data, it appears from the bar graph illustrating
    the data that approximately twice as many consumers find charitable
    calls "more acceptable" than other types of unsolicited calls than
    find commercial calls "more acceptable" than other types of
    unsolicited calls (approximately 18% v. 9%). The Congressional
    findings were supported by a poll undertaken by the National
    Association of Consumer Agency Administrators of its state level
    members for statistical data describing the extent to which consumer
    complaints about unsolicited telemarketing calls involved
    commercial, charitable, or political calls. The evidence showed that
    the overwhelming majority of consumer complaints were about
    commercial calls. H.R. R[ep]{.smallcaps}. N[o]{.smallcaps}. 102-137
    at 16. Both the Eighth and Ninth Circuits have credited Congress'
    findings relating to the TCPA. *See American Blast Fax*, 323 F.3d at
    655-656 (citing Congress' evidence in upholding the distinction
    between commercial and non-commercial faxes in the TCPA) and *Moser
    v. FCC*, 46 F.3d at 974 (finding that "\[t\]here was significant
    evidence before Congress of consumer concerns about telephone
    solicitation" before the passage of the TCPA). "When Congress makes
    findings on essentially factual issues ... those findings are
    entitled to a great deal of deference, inasmuch as Congress as an
    institution is better equipped to amass and evaluate the vast
    amounts of data." *Walters v. National Ass'n of Radiation
    Survivors*, 473 U.S. 305, 331 n.12 (1985). We also note that in its
    *1992 TCPA Order*, the Commission stated that no evidence had been
    presented to show that non-commercial calls represented as serious a
    concern for telephone subscribers as unsolicited commercial calls
    and unsolicited commercial calls and concluded, based on the
    comments and the legislative history of the TCPA, that it would not
    seek additional authority to curb calls by tax-exempt organizations.
    TCPA Order, 7 FCC Rcd at 8773-8774, para. 40. Congress recently
    reaffirmed this judgment by requiring us "to maximize consistency"
    with the rule promulgated by the Federal Trade Commission, which
    contains an exemption for non-profit organizations.

[^234]: *Id.* at 14.

[^235]: *Missouri ex rel. v.* *American Blast Fax*, 323 F.3d at 656 n.4
    (*citing* *United States v. Edge Broad. Co.*, 509 U.S. 418 at 434).

[^236]: *FTC Order*, 68 Fed. Reg. at 4636, n. 675, *quoting from*
    *Metromedia v. San Diego*, 453 U.S. 490, 513 (1981) ("\[I\]nsofar as
    it regulates commercial speech, the San Diego ordinance meets the
    constitutional requirements of *Central Hudson* .... It does not
    follow, however, that San Diego's ban on signs carrying
    noncommercial advertising is also valid ..." Commercial speech cases
    have consistently accorded noncommercial speech a greater a greater
    degree of protection than commercial speech.") and *citing
    Watchtower Bible and Tract Soc'y v. Village of Stratton*, 122 S.Ct.
    2080 (summarized by the FTC Order as "the Court invalidated an
    ordinance that required anyone who wanted to engage in door-to-door
    canvassing or soliciting to obtain a permit before doing so, the
    Court went out of its way to suggest that the ordinance may have
    been constitutional if it were limited to commercial speech.").

[^237]: *FTC Order*, 68 Fed. Reg. at 4636.

[^238]: Thirty-six states have adopted no-call laws.

[^239]: *See* Do-Not-Call Act, Sec. 3.

[^240]: *See* 47 U.S.C. § 227(e) and (f).

[^241]: *See* Letter from James Bradford Ramsay, NARUC General Counsel,
    to FCC filed March 14, 2003 (NARUC *ex parte*); NARUC Winter
    Committee Meetings, February 23-26, 2003, at which FCC and FTC staff
    discussed the national do-not-call registry and ways to harmonize
    federal and state programs. *See also* FTC Further Comments.

[^242]: *See, e.g.*, AARP Comments at 3; Visa Comments at 1-3.

[^243]: *See* 47 U.S.C. § 227(e)(2).

[^244]: *See* new rule at 47 C.F.R. § 64.1200(h).

[^245]: *FTC Order*, 68 Fed. Reg. at 4641. Approximately 19.2 million
    consumers have registered on state do-not-call lists.

[^246]: The FTC estimates that many states will be able to transfer
    their do-not-call registrations to the national database prior to
    its implementation on October 1, 2003. For other states it may take
    from 12 to 18 months to achieve this result. *FTC Order*, 68 Feg.
    Reg. at 4641.

[^247]: *See* 47 U.S.C. § 227(e)(2).

[^248]: *See 2002 Notice*, 17 FCC Rcd at 17493-96, paras. 60-66.

[^249]: *See, e.g.,* DMA Reply Comments at 5. *See also* Nextel Comments
    at 4-6; Visa Comments at 3-4; Wells Fargo Comments at 1-2; Xpedite
    Comments at 14-16 (arguing that the Commission should preempt to
    create more uniform rules). We note that, although Bank One raises
    its preemption arguments, in part, by referencing the Commerce
    Clause, its analysis clearly focuses on the Commission's' authority
    under the Communications Act to preempt. ("Congress' general power
    to regulate interstate commerce *and* its delegation of that
    authority to the FCC in the Communications Act of 1934." Bank One
    Further Comments at 5.) Moreover, to the extent Bank One suggests
    that, in the absence of federal statutory preemption, the Commerce
    Clause operates to preempt states from unduly burdening interstate
    commerce, such a finding would require a more particularized showing
    with regard to the specific statute at issue and the burden on
    interstate commerce. *See e.g., Exxon Corp. v. Governor of Md*., 437
    U.S. 117 (1978) (considering whether state statute that prohibited
    oil producers and refiners from operating retail gas stations
    impermissibly burdened interstate commerce.).

[^250]: *See, e.g.*, WorldCom Reply Comments at 27-30 (arguing that
    state do-not-call lists are preempted by operation of law to the
    extent they purport to regulate interstate calls).

[^251]: *See, e.g.*, NAAG Comments at 12; Attorney General of Indiana
    Further Reply Comments.

[^252]: *See, e.g.*, American Express Comments at 2-3; Nextel Comments
    at 4-5; Visa Reply Comments 8-9.

[^253]: *See, e.g.*, NAAG Comments at 12; NARUC Comments at 3-4; North
    Dakota PSC Comments at 2; Attorney General of Indiana Further Reply
    Comments.

[^254]: *See, e.g.* NARUC Comments at 3-4; North Dakota PSC Comments at
    2; OPCDC Comments at 3; Texas PUC Comments. In addition, a large
    number of consumers filed comments in this proceeding indicating
    that state do-not-call regulations have improved their privacy
    rights. *See, e.g.*, Brenda J. Donat Comments (cancer patient
    appreciates reduction in calls due to Indiana Telephone Privacy
    Act); Alice and Bill Frazee Comments; Tammy Puckett Comments
    (Indiana law provides for quiet for terminally ill family member).

[^255]: *See* NAAG Comments at 2. NAAG estimates that approximately 150
    state enforcement actions have been taken against telemarketing
    companies call across state lines.

[^256]: 47 U.S.C. § 227(f)(6)("Nothing contained in this subsection
    shall be construed to prohibit an authorized State official from
    proceeding in State court on the basis of an alleged violation of
    any general civil or criminal statute of such State.").

[^257]: *Van Bergen v. Minnesota*, 59 F.3d 1541, 1547-48 (8th Cir.
    1995).

[^258]: Ala. Code 1975 § 8-19A-4; Ark. Code Ann. § 4-99-103; Fla. Stat.
    Ann. § 501.604.

[^259]: Ind. Code § 24-4.7-1-1 (no EBR exception); Idaho Code § 48-1003A
    (nonprofit exception for minors only).

[^260]: Alaska Stat. § 45.50.475; Vt. Stat. Ann. tit. 9 § 2464a; Kan.
    Stat. Ann. § 50-670 and § 50-671.

[^261]: Section 2(b) provides the Commission with the authority to apply
    the TCPA to intrastate communications. *See* 47 U.S.C. § 152(b).

[^262]: 47 U.S.C. § 227(f)(1).

[^263]: *See, e.g.*, *Geier v. American Honda Motor Co.*, 529 U.S. 861,
    873 (2000) (where state law frustrates the purposes and objectives
    of Congress, conflicting state law is "nullified" by the Supremacy
    Clause); *City of New York v. FCC*, 486 U.S. 57, 64 (1988) ("The
    statutorily authorized regulations of an agency will preempt any
    state or local law that conflicts with such regulations or
    frustrates the purposes thereof.").

[^264]: 47 U.S.C. § 227(e)(1).

[^265]: Section 227(e)(1) provides that:

    > \(e\) Effect on State Law. --
    >
    > \(1\) State Law Not Preempted. -- Except for the standards
    > prescribed under subsection (d) and subject to paragraph (2) of
    > this subsection, nothing in this section or in the regulations
    > prescribed under this section shall preempt any State law that
    > imposes more restrictive intrastate requirements or regulations
    > on, or which prohibits---
    >
    > \(A\) the use of telephone facsimile machines or other electronic
    > devices to send unsolicited advertisements;
    >
    > \(B\) the use of automatic telephone dialing systems;
    >
    > \(C\) the use of artificial or prerecorded voice messages; or
    >
    > \(D\) the making of telephone solicitations.

[^266]: *See Louisiana Pub. Serv. Comm'n v. FCC*, 476 U.S. 355 (1986);
    *Smith v. Illinois Bell Telephone Co.*, 282 U.S. 133 (1930).

[^267]: S. R[ep]{.smallcaps}. N[o]{.smallcaps}. 102-178, at 3; *see also
    id.* at 5 ("Federal action is necessary because States do not have
    jurisdiction to protect their citizens against those who . . . place
    interstate telephone calls."); Cong. Rec. S16205 (Nov. 7, 1991)
    (remarks of Sen. Hollings) ("State law does not, and cannot,
    regulate interstate calls."); TCPA § 2(7) (finding that "\[o\]ver
    half the States now have statutes restricting various uses of the
    telephone for marketing, but telemarketers can evade their
    prohibitions through interstate operation.").

[^268]: *See, e.g.,* 137 Cong. Rec. S18317-01, at 1 (1991) (remarks of
    Sen. Pressler) ("The Federal Government needs to act now on uniform
    legislation to protect consumers.").

[^269]: *See, e.g.*, AWS Further Comments at 7 (separate state
    requirements will confuse customers and increase costs and burdens
    for telemarketers); Intuit Further Comments at 2-4 (Congress
    intended that more restrictive state laws be preempted); Visa
    Further Comments at 8 (contending that state lists that are
    inconsistent with federal requirements should be preempted).

[^270]: NAAG Comments at 12.

[^271]: 47 U.S.C. § 227(f)(6).

[^272]: *1992 TCPA Order*, 7 FCC Rcd at 8765-66, para. 23. Specifically,
    the Commission's rules require that persons or entities engaged in
    telephone solicitations must have a written policy available upon
    demand for maintaining a do-not-call list, must inform and train any
    personnel engaged in telephone solicitations in the existence and
    use of the list, and must record the request and place the
    subscriber's name and telephone number on the do-not-call list at
    the time the request is made. 47 C.F.R. § 64.1200(e)(2)(i)--(iii).
    In addition, the Commission's rules require that a do-not-call
    request be honored for a period of ten years from the date of the
    request. 47 C.F.R. § 64.1200(e)(2)(vi). In the absence of a specific
    request by the subscriber to the contrary, a do-not-call request
    applies to the particular business entity making the call or on
    whose behalf the call is made, and does 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. 47 C.F.R. § 64.1200(e)(2)(v).

[^273]: *2002 Notice*, 17 FCC Rcd at 17468-72, paras. 13-20.

[^274]: *2002 Notice*, 17 FCC Rcd at 17469-70, paras. 14-15.

[^275]: *2002 Notice*, 17 FCC Rcd at 17470, para. 17.

[^276]: Lyle Bickley Comments; Pete Nico, Jr. Comments.

[^277]: *See, e.g.*, James D. Gagnon Comments; Norman C. Hamer Comments;
    Rosanna Santiago Comments; Elizabeth J. Yocam Comments.

[^278]: *See, e.g.*, Harley H. Cudney Comments (telemarketers fail to
    identify themselves); Timothy Walton Comments (telemarketers failure
    to send do-not-call policy when requested).

[^279]: Gregory S. Reichenbach Comments.

[^280]: Thomas M. Pechnik Comments at 2; Wayne Strang Comments at 4.

[^281]: *See* Telecommunications for the Deaf Comments at 2.

[^282]: *See, e.g.*, ATA Comments at 97-100; DMA Comments at 16-18; SBC
    Reply Comments at 6.

[^283]: *See, e.g,* Household Financial Comments at 3; MBA Comments at
    6-7; Nextel Comments at 7-9; Qwest Comments at 6-7. *But see* MBNA
    Comments at 7.

[^284]: *FTC Order*, 68 Fed. Reg. at 4629.

[^285]: *FTC Order*, 67 Fed. Reg. at 4629.

[^286]: *See, e.g.,* Nancy J. Barginear Comments; David K. McClain
    Comments; John A. Rinderle Comments; Ryan Tobin Comments.

[^287]: *But see* Nextel Comments at 7 (contending that adoption of a
    national do-not-call list may render unnecessary any detailed
    company-specific requirements).

[^288]: *See, e.g.*, DMA Comments at 16; Electronic Retailing
    Association Comments at 5-6; Ohio PUC Comments at 17.

[^289]: *See, e.g*., ABA Comments at 8; AGF Comments at 3; Call
    Compliance Comments at 7.

[^290]: *See, e.g.*, DMA Comments at 16; Electronic Retailing
    Association Comments at 5-6; Ohio PUC Comments at 17-18.

[^291]: *See* amended rule at 47 C.F.R. § 64.1200(d)(6).

[^292]: *See, e.g.*, MBA Comments at 6; Nextel Comments at 7-9; Qwest
    Comments at 6-7.

[^293]: *See, e.g.*, Household Financial Services Comments at 3-4
    (contending that it takes 90 days to process requests); Verizon
    Comments at 6 (45 days to process request).

[^294]: *See, e.g.,* WorldCom Comments at 40.

[^295]: Consistent with our existing rules, such request applies to all
    telemarketing campaigns of the seller and any affiliated entities
    that the consumer reasonably would expect to be included given the
    identification of the caller and the product being advertised. 47
    C.F.R. § 64.1200(e)(2)(v). *See also* AGF Comments at 4 (indicating
    that a reasonable time to process requests is 30 days); MBNA
    Comments at 7 (reasonable time to process requests is a minimum of
    30 days).

[^296]: 47 C.F.R. § 64.1200(e)(2)(iii).

[^297]: As noted above, the safe harbor period for compliance with the
    national do-not-call list is three-months. However, given that the
    national list will contain many more registrants than the individual
    company-specific lists, we believe that it is reasonable to allow
    some additional time for telemarketers to comply with the national
    do-not-call requests.

[^298]: *See* 47 U.S.C. § 227(a)(3)(C).

[^299]: *1995 TCPA Reconsideration Order*, 10 FCC Rcd at 12397, para.
    13.

[^300]: *2002 Notice*, 17 FCC Rcd at 17479, para. 33.

[^301]: *See* amended rule at 47 C.F.R. § 64.1200(d).

[^302]: *See* amended rule at 47 C.F.R. § 64.1200(f)(3)(i).

[^303]: *2002 Notice*, 17 FCC Rcd at 17471-72, paras. 18-19.

[^304]: The Act defines CPNI as "(A) information that relates to the
    quantity, technical configuration, type, destination, location, and
    amount of use of a telecommunications service subscribed to by any
    customer of a telecommunications carrier, and that is made available
    to the carrier by the customer solely by virtue of the
    carrier-customer relationship; and (B) information contained in the
    bills pertaining to telephone exchange service or telephone toll
    service received by a customer of a carrier." 47 U.S.C. §
    222(h)(1)(A) and (B) (the 911 Act amended the definition of CPNI in
    section 222(h) to include "location" among a customer's information
    that carriers are required to protect under the privacy provisions
    of section 222). CPNI includes personal information such as the
    phone numbers called by a consumer, the length of phone calls, and
    services purchased by a consumer, such as call waiting. *See
    Implementation of the Telecommunications Act of 1996:
    Telecommunications Carriers' Use of Customer Proprietary Network
    Information and Other Customer Information; Implementation of the
    Non-Accounting Safeguards of Sections 271 and 272 of the
    Communications Act of 1934, as amended, 2000 Biennial Regulatory
    Review - Review of Policies and Rules Concerning Unauthorized
    Changes of Consumers' Long Distance Carriers,* CC Docket Nos.
    96-115, 96-149, and 00-257, Third Report and Order and Third Further
    Notice of Proposed Rulemaking, 17 FCC Rcd 14860 at 14864, para. 7
    (2002) (*CPNI Third Report and Order*).

[^305]: Opt-out approval and opt-in approval refer to methods of
    obtaining customer consent to use, disclose, or permit access to
    customers' CPNI. The opt-in approval method "requires that the
    carrier obtain from the customer affirmative, express consent
    allowing the requested CPNI usage, disclosure, or access after the
    customer is provided appropriate notification of the carrier's
    request consistent with the requirements" adopted by the Commission.
    47 C.F.R. § 64.2003(h). Under the opt-out approval method "a
    customer is deemed to have consented to the use, disclosure, or
    access to the customer's CPNI if the customer has failed to object
    thereto within the waiting period \[adopted by the Commission in 47
    C.F.R. § 64.2009(d)(1)\] after the customer is provided appropriate
    notification of the carrier's request for consent consistent with
    the rules" adopted by the Commission. 47 C.F.R. § 64.2003(i).

[^306]: Such marketing is not limited to telemarketing and may include
    direct mail or other marketing.

[^307]: *2002 Notice,* 17 FCC Rcd at 17471-72, para. 19. The Commission
    noted that the carrier would still be able to market to that
    consumer in other ways (e.g., direct mail, e-mail, etc.). *Id.*

[^308]: *2002 Notice,* 17 FCC Rcd at 17471-72, para. 19.

[^309]: BellSouth Comments at 6; Verizon Comments at 16; Michael C.
    Worsham Comments at 3; Yellow Pages Comments at 6.

[^310]: Cingular Comments at 10; Sprint Comments at 15.

[^311]: AT&T Wireless Comments at 20-21.

[^312]: Concerned Telephone Companies Comments at 1-8; NTCA Comments at
    2 ("Offering opt-out consent to the consumer's telecommunications
    carrier under section 222 indicates an interest in receiving
    information on new services that may be available either now or in
    the future from the carrier.").

[^313]: NYSCPB Comments at 5.

[^314]: *See* 47 C.F.R. § 64.1200(f)(4). *See also infra* Section VI.

[^315]: *See supra* para. 42.

[^316]: BellSouth Comments at 6; Michael C. Worsham Comments at 3;
    Verizon Comments at 16; Yellow Pages Comments at 6.

[^317]: As one commenter stated "under the Commission's CPNI rules ... a
    customer's CPNI consent does not equate to customer consent to
    receive telemarketing by that carrier." AT&T Wireless Comments at
    19.

[^318]: *See infra* para. 112.

[^319]: We disagree with the Concerned Telephone Companies' assertion
    that a customer's CPNI consent equates to a "prior express
    invitation or permission" to be contacted. *See* Concerned Telephone
    Companies Comments at 2. As we discuss herein, a customer's CPNI
    consent indicates her willingness to have her telephone company use
    her CPNI in order to, among other things, tailor marketing proposals
    to her. CPNI approval, however, is not a blanket approval for any
    and all marketing a carrier may decide to pursue. A customer's
    affirmative decision to enroll on a do-not-call list is a much more
    direct and reliable indicator of a customer's willingness to receive
    marketing advances via the telephone. Accordingly, we disagree with
    the Concerned Telephone Companies' assertion that "consent given by
    a customer under the CPNI rules renders Section 227 constraints
    inapplicable." Concerned Telephone Companies Comments at 2.

[^320]: Some commenters equated obtaining customers' consent to use the
    customers' CPNI with having an established business relationship.
    *See* Nextel Comments at 16, section entitled "The Commission Should
    Interpret the Established Business Relationship Rules in a Manner
    Consistent With the Consent Requirements of the CPNI Rules." We
    concur with those commenters who argue that the carrier's
    established business relationship allows the carrier to contact
    those customers via telemarketing who have requested to be on the
    national do-not-call list. However, as we determine herein, the CPNI
    consent does not overcome or trump a customer's request to be
    included on the national do-not-call list. *See* Cingular Comments
    at 10; Nextel Comments at 17; Sprint Comments at 16 ("The view that
    telecommunications service providers should be allowed to contact
    their existing customers, even if such customers have asked to be
    placed on a general (non-company specific) DNC list, is consistent
    with the Commission's view of the importance of 'established
    business relationships.'").

[^321]: Concerned Telephone Companies Comments at 2; AT&T Wireless Reply
    Comments at 26.

[^322]: Concerned Telephone Companies Comments at 2 (emphasis added).

[^323]: AT&T Wireless Reply Comments at 26-27.

[^324]: Yellow Pages Comments at 7 ("Consumers who do not want to
    receive solicitations via telephone are going to request to be
    placed on the do-not-call list, regardless of whether the consumer
    has consented to the use of their CPNI").

[^325]: AT&T Wireless Reply Comments at 27.

[^326]: AT&T Wireless Comments at 18-19 (contending that under
    circumstances where "the express opt-in CPNI consent includes
    customer consent to be contacted by telephone, AWS believes the
    carrier has the permission to contact the customer even if that
    customer has placed her name on either the carrier's or a national
    do-not-call list."). *See also* NYSCPB Comments at 5.

[^327]: AT&T Wireless Reply Comments at 27.

[^328]: NYSCPB Comments at 5.

[^329]: NYSCPB Comments at 5.

[^330]: AT&T Wireless Reply Comments at 26; Verizon Comments at 16;
    Yellow Pages Comments at 6.

[^331]: Concerned Telephone Companies Comments at 3.

[^332]: 47 U.S.C. § 227(a)(3)(B).

[^333]: *1992 TCPA Order*, 7 FCC Rcd at 8770, para. 34; *see also* 47
    C.F.R. § 64.1200(c)(3).

[^334]: *2002 Notice*, 17 FCC Rcd at 17480, para. 34.

[^335]: 47 C.F.R. § 64.1200(f)(4).

[^336]: *See, e.g.,* MPA Comments at 5, 13; MBNA Comments at 7; NAII
    Comments at 3; SBC Comments at 10; Nextel Comments at 11-13.

[^337]: *See, e.g.,* ATA Comments at 101-105; NADA Comments at 2.

[^338]: *See, e.g.,* SBC Comments at 12-13; Intuit Comments at 6; DMA
    Comments at 20-21; ATA Comments at 105. *But see, e.g.,* ERA
    Comments at 11 (definition should cover 24 month period prior to
    call); AT&T Wireless Reply Comments at 18-19 (favoring the FTC's
    18-month duration on the established business relationship);
    Scholastic Comments at 8 (3 years following payment for goods and 6
    months following an inquiry); MidFirst Bank Comments at 2-3
    (suggesting the existing business relationship be terminated no
    earlier than a period of 12 months following the last purchase and
    no earlier than 60 days following the closure of all accounts with a
    company).

[^339]: *See, e.g.,* HFS Comments at 6; WorldCom Comments at 14-16;
    Comcast Comments at 5-7; American Express Comments at 3-4.

[^340]: *See, e.g.,* NASUCA Comments at 17; John A. Shaw Comments at 4;
    TOPUC Comments at 5; NYSCPB Comments at 7-8 (should not extend to
    related business entities); Michael C. Worsham Comments at 10
    (should delete "inquiry, application" from definition, as they do
    not constitute permission to receive prerecorded messages); PUC of
    Ohio Comments at 15 (should be limited to contact about changes or
    updates to current product or service); NYSCPB---Other Than DNC List
    Comments at 7-8, 14-17 (should not extend to related business
    entities or include a mere inquiry); NCL Comments at 5 (explaining
    that under the current definition of established business
    relationship, consumers have to remember the name of every company
    with whom they have ever had any contact in order to determine which
    can call legally and which cannot).

[^341]: Thomas M. Pechnik Comments at 3 (no authority in section 227 for
    an EBR exemption for artificial or prerecorded message calls); Wayne
    G. Strang Comments at 12 (should revoke EBR exemption for
    prerecorded messages).

[^342]: *See* AARP Comments at 6; *see also* NCL Comments at 5 (urging
    the Commission to require telemarketers to disclose to their
    customers that they plan to make telemarketing calls and to provide
    the opportunity for them to opt-out).

[^343]: *See, e.g.,* AARP Comments at 5; NASUCA Comments at 17-18.

[^344]: AARP Comments at 5.

[^345]: AARP Comments at 5.

[^346]: Some suggest 24 months (MPA Comments at 12-13 and NASUCA
    Comments at 17); others advocate a 36-month period (Scholastic
    Comments at 8 and Bank of America Comments at 4); some commenters
    maintain that a 12-month period would be sufficient (Sprint Comments
    at 18); other commenters advocated a definition comparable to the
    FTC's (DIRECTV Further Comments at 2; NTCA Further Comments at 2-3).
    *See also* TOPUC Comments at 6 (stating that Commission rules should
    require that the relationship be ongoing. To qualify as "ongoing,"
    the customers must have completed a purchase or transaction with a
    specific company within 24 months prior to the call).

[^347]: *FTC Order,* 68 Fed Reg. at 4634; 16 C.F.R. § 310.2(n).

[^348]: *FTC Order,* 68 Fed. Reg. at 4634.

[^349]: *FTC Order*, 68 Fed Reg. at 4592.

[^350]: *FTC Order*, 68 Fed. Reg. at 4593-94.

[^351]: The "established business relationship" permits telemarketers to
    call consumers registered on the national do-not-call list and to
    deliver prerecorded messages to consumers. The "established business
    relationship," however, is not an exception to the company-specific
    do-not-call rules. Companies that call their EBR customers must
    maintain company-specific do-not-call lists and record any
    do-not-call requests as required by amended 47 C.F.R. § 64.1200(d).
    *See infra* discussion in para. 124. The Commission has also
    reversed its prior conclusion that an "established business
    relationship" provides the necessary permission to deliver
    unsolicited facsimile advertisements. *See infra* discussion in
    para. 188-191.

[^352]: *See, e.g.*, ATA Comments at 105; Verizon Comments at 13-14.

[^353]: American Express Comments at 4.

[^354]: *See, e.g.,* Bank of America Comments at 3; ATA Comments at 101.

[^355]: *See infra* discussion on unsolicited facsimile messages, paras.
    185-193.

[^356]: *See* H.R. R[ep]{.smallcaps}. N[o]{.smallcaps}. 102-317 at 14
    (1991) ("In the Committee's view, an 'established business
    relationship' . . . could be based upon any prior transaction,
    negotiation, or inquiry between the called party and the business
    entity that has occurred during a reasonable period of time. . . The
    Committee recognized this relationship so as not to foreclose the
    capacity of businesses to place calls that build upon, follow up, or
    renew, within a reasonable period of time, what had once been \[an\]
    'existing customer relationship.'") The House Report also states
    that ". . . the Committee believes the test to be applied must be
    grounded in the consumer's expectation of receiving the call.
    Consequently, the test shall consist of a determination of whether
    the new solicitation occurs within a reasonable period of time and
    the new product or service being promoted is related substantially
    to the prior relationship." *Id.* at 14-15.

[^357]: *See* amended 47 C.F.R. § 64.1200(f)(3).

[^358]: We also note that the act of "terminating" an established
    business relationship will not hinder or thwart creditors' attempts
    to reach debtors by telephone, to the extent that debt collection
    calls constitute neither telephone solicitations nor include
    unsolicited advertisements. *See 1995 TCPA Reconsideration Order*,
    10 FCC Rcd at 12400, para. 17.

[^359]: *See* amended 47 C.F.R. § 64.1200(f)(3).

[^360]: *See* *infra* discussion on the interplay between the
    established business relationship and a do-not-call request, para.
    124.

[^361]: NASUCA Comments at 17; TOPUC Comments at 5-6; NCL Comments at 5
    (EBR should be narrowed to require a consumer to actually set up an
    account with a company for the purpose of making recurring or
    repeated purchases); Michael C. Worsham Comments at 10; Stewart
    Abramson-December 9, 2002 Comments at 4-5; NYSCPB-Other Than DNC
    List Comments at 15.

[^362]: Verizon Comments at 15; FSR Comments at 3-4.

[^363]: *See* H.R. R[ep]{.smallcaps}. N[o]{.smallcaps}. 102-317 at 14-15
    (1991) (noting that if an investor had written to a mutual fund or
    responded to an ad requesting additional information, the fund's
    manager could make follow-up calls. The Report also explains that a
    loan officer or financial consultant may call a telephone subscriber
    who had requested a loan.).

[^364]: H.R. R[ep]{.smallcaps}. N[o]{.smallcaps}. 102-317 at 14, 15
    (1991).

[^365]: *See, e.g.,* TOPUC Comments at 5-6, 11 ("there is no reason for
    a customer who merely inquires about a product or service, or
    answers a survey, to be subject to future telemarketing calls"); NCL
    Comments at 5 (definition should be narrowed to include situations
    in which the consumer has set up an account with a company for
    purposes of making recurring or repeated purchases).

[^366]: Verizon Comments at 15; ATA Comments at 104; ABA Comments at 5.

[^367]: Most commenters who suggested a time limit on the EBR did not
    specify that it would apply to inquiries. *But see* Scholastic
    Comments at 8 (for requests of information, the reasonable amount of
    time should be at least 6 months); DIRECTV Reply Comments at 5 (FCC
    should adopt the same timeframes adopted by the FTC---18 months for
    a purchase and 3 months for an inquiry); Intuit Reply Comments at 7
    (3-month rule is not practical from the perspective of an online
    service provider and software company; customers may be interested
    in upgrading software or in new products and services several years
    after the initial purchase).

[^368]: *2002 Notice,* 17 FCC Rcd at 17472, para. 20.

[^369]: NCTA Comments at 2-5 ( "\[I\]t is precisely because cable
    operators now compete with a range of other wireline and wireless
    entities in providing packages of *different* services and products
    that it is more important than ever---to cable operators *and* their
    customers---that operators be able to keep their customers informed
    of the full range of offerings and promotions available to them.");
    Comcast Comments at 7-8; Cox Comments at 6-8; Yellow Pages Comments
    at 8; American Express Comments at 3; DMA Comments at 28.

[^370]: John A. Shaw Comments at 4; PUC of Ohio Comments at 15 (should
    limit the contact about changes or updates to the current product or
    service. For example, a lawn care service cannot call to offer vinyl
    siding); Joe Shields Further Comments at 3 (any product or service
    offered through telemarketing must be substantially related to the
    product that created the relationship).

[^371]: *See* WorldCom Comments at 9 (describing its "Neighborhood"
    product, which combines a special feature package and unlimited
    local and long distance calling for one price); Cablevision Reply
    Comments at 3 (noting that in addition to telephone and telecom
    products, the company owns an array of entertainment and retail
    venues. It also faces strong competition from other providers of
    video programming, and needs to be able to let customers for one
    line of service know about other services).

[^372]: As required by the amended rules we adopt today, "\[a\] person
    or entity making a call for telemarketing purposes must provide the
    called party with the name of the individual caller, the name of the
    person or entity on whose behalf the call is being made, and a
    telephone number or address at which the person or entity may be
    contacted." *See* 47 C.F.R. § 64.1200(d)(4). The amended rules also
    require that all artificial or prerecorded telephone messages shall,
    "\[a\]t the beginning of the message, state clearly the identify of
    the business, individual, or other entity that is responsible for
    initiating the call. If a business is responsible for initiating the
    call, the name under which the entity is registered to conduct
    business with the State Corporation Commission (or comparable
    regulatory authority) must be stated, and \[d\]uring or after the
    message, state clearly the telephone number (other than that of the
    autodialer or prerecorded message player which placed the call) of
    such business, other entity, or individual. . ." *See* 47 C.F.R. §
    64.1200(b).

[^373]: *See* *1992 TCPA Order*, 7 FCC Rcd at 8770-71, para. 34.

[^374]: NCL Comments at 5-6; NYSCPB-Other Than DNC List Comments at 7.

[^375]: *See, e.g.,* SBC Comments at 11 (This is consistent with sec.
    272(g), which allows Bell Operating Companies to jointly market
    services of their long distance affiliates); Visa Comments at 6
    (should also apply to co-brand and affinity partners); FSR Comments
    at 4 (Commission should make clear that any member of a corporate
    family, including subsidiaries and affiliates, should be permitted
    to call as long as customer has EBR with any member).

[^376]: Given the numerous types of business relationships, the
    Commission believes it appropriate to treat the issue of a
    consumer's "reasonable expectations" in any complaint on a
    case-by-case basis. *See also* H.R. R[ep]{.smallcaps}.
    N[o]{.smallcaps}. 102-317 at 15 (noting that contact by an affiliate
    of the company with whom a consumer has an established business
    relationship may be permissible if the solicitation by the affiliate
    related to a transaction in progress with the consumer or was
    substantially related to the product or service forming the basis of
    the business relationship.).

[^377]: *See, e.g.,* American Express Comments at 4.

[^378]: *See* 47 C.F.R. § 64.1200(e)(2)(v).

[^379]: *See* New Jersey Ratepayer Further Reply Comments at 3
    (providing an exemption for referrals by existing customers would
    provide an open door and the element of consent would still be
    missing). *But see* NAIFA Comments at 3.

[^380]: *See* AT&T Wireless Comments at 25 (arguing that an established
    business relationship is formed in such a situation).

[^381]: *See* Verizon Comments at 14-15.

[^382]: *See* Nextel Reply Comments at 15-17. However, if a consumer
    purchases a seller's products at a retail store or from an
    independent dealer, such purchase would establish a business
    relationship with the seller, entitling the seller to call that
    consumer under the EBR exemption.

[^383]: *See* Notice of *Ex Parte Presentation* from WorldCom to FCC at
    8, filed June 16, 2003.

[^384]: WorldCom Comments at 7.

[^385]: WorldCom Comments at 9 ("telemarketing is the most
    cost-effective way to introduce new products and services to the
    public, especially local and long distance telecommunications
    services that customers customize for their specific needs"
    (footnote omitted)).

[^386]: WorldCom Comments at 13; *see also* ATA Reply Comments at 30-32;
    Winstar Further Comments at 3-4 (maintaining that the FCC should
    either exempt telecommunications service providers from the
    do-not-call rules or implement rules that prevent incumbents from
    using the EBR to preserve their monopoly); CompTel Further Reply
    Comments at 2 (should follow WorldCom's suggestion and determine
    that all consumers have an EBR with all providers of local service).
    *But see* Wayne G. Strang Reply Comments at 16 (suggesting that
    WorldCom's arguments are exaggerated as even those entities that
    have an established business relationship with a subscriber may not
    take advantage of the exemption once the subscriber makes a
    do-not-call request).

[^387]: *See 2002 Notice*, 17 FCC Rcd at 17472, para. 20; *see also*
    Shaw Further Reply Comments at 13 (if there is any competition
    problem, the EBR for ILECS should not allow them to sell the
    customer additional services or products).

[^388]: WorldCom Comments at 15. *See also* WorldCom Comments at 15-16
    (arguing that limiting calls to those related to the customer's
    current service does not make sense in a market where products are
    increasingly integrated).

[^389]: WorldCom Reply Comments at 11. *But see* Verizon Further Reply
    Comments at 2-3 (it would be at odds with the plain meaning of EBR
    to adopt WorldCom's suggestion that all consumers would have an EBR
    with WorldCom).

[^390]: WorldCom Reply Comments at 11.

[^391]: *See* 47 U.S.C. § 227(c)(1).

[^392]: We note that of the TCPA-related complaints filed by consumers
    with the Commission, a substantial number have been against common
    carriers. *See* Caroline E. Mayer, "Do Not Call' List Operator AT&T
    Leads in Complaints," Washingtonpost.com (April 23, 2003)
    \<<http://washingtonpost.com/wp-dyn/articles/A17683-2003Apr22.html>\>
    (describing the number of complaints filed against AT&T and other
    common carriers for do-not-call violations); *see also* ATA
    Comments, Appendix 16.

[^393]: *See supra* para. 113 for a discussion regarding termination of
    the established business relationship for purposes of telemarketing
    calls.

[^394]: *2002 Notice*, 17 FCC Rcd at 17480-81, para. 35.

[^395]: *See* H.R. R[ep]{.smallcaps}. N[o]{.smallcaps}. 102-317 at 15-16
    (1991) ("If a subscriber asks a company with whom it has an
    established relationship not to call again, that company has an
    obligation to honor the request and avoid further contacts. Despite
    the fact that objecting subscribers can be called based on an
    'established business relationship,' it is the strongly held view of
    the Committee that once a subscriber objects to a business that
    calls based on an established relationship, such business must honor
    this second objection and implement procedures not to call that
    twice-objecting subscriber again.").

[^396]: *See, e.g.,* Thomas M. Pechnik Comments at 3; Joe W.
    McDaniel-Fifth December 5, 2002 Comments; City of Chicago Comments
    at 11-12; Philip J. Charvat Comments at 8; Mark A. Hiner Comments;
    Barbara Crouse Comments (receives calls from a newspaper because she
    is a subscriber, even when she asks to be placed on a do-not-call
    list); Wayne G. Strang Comments at 13; TOPUC Comments at 6.

[^397]: Owen O'Neill Comments at 2; City of New Orleans Comments at 10.

[^398]: *See, e.g.,* DialAmerica Comments at 14; AT&T Wireless Comments
    at 26-27; Verizon Comments at 15; HFS Comments at 9; NCTA Comments
    at 5. *But see* Bank of America Comments at 6 (a do-not-call request
    should not terminate the relationship, and businesses should be able
    to continue calling those customers).

[^399]: *See, e.g.*, Philip J. Charvat Comments at 8 (If product
    exceptions to do-not-call requests were allowed, the TCPA's
    effectiveness would be eviscerated. "A 'credit card' offer declined
    by a consumer with a \[do-not-call\] demand, will be followed by a
    'shopping convenience card' offer from the same entity"); Stewart
    Abramson-December 9, 2002 Comments at 1 (a do-not-call request
    should apply to the business generally, not just by product or
    service. Otherwise, it would be very time-consuming for the
    consumer).

[^400]: In some instances, however, a consumer may grant explicit
    consent to be called during the course of a subsequent purchase or
    transaction.

[^401]: *See* amended rule at 47 C.F.R. § 64.1200(d). *See also supra*
    para. 96.

[^402]: *See* amended rule at 47 C.F.R. § 64.1200(f)(3)(i).

[^403]: 47 U.S.C. § 227(a)(3). In its initial rulemaking in 1992, the
    Commission concluded that, in the same vein, calls by tax-exempt
    nonprofit organizations also should be exempt from the prohibition
    on prerecorded messages to residences as non-commercial calls. *See
    1992 TCPA Order*, 7 FCC Rcd at 8773-74, para. 40; *see also* 47
    U.S.C. § 227(a)(3)(C) and 47 C.F.R. § 64.1200(c)(4).

[^404]: *See 1995 TCPA Reconsideration Order*, 10 FCC Rcd at 12397,
    para. 13.

[^405]: *See 1995 TCPA Reconsideration Order*, 10 FCC Rcd at 12397,
    para. 13.

[^406]: *2002 Notice*, 17 FCC Rcd at 17479, para. 33.

[^407]: NPCC Comments at 12-13; March of Dimes Comments at 2; Special
    Olympics-Hawaii Comments; NPCC Comments at 4 ("An estimated 60
    percent to 70 percent of nonprofit and charitable organizations use
    professional fundraisers to deliver their messages to consumers and
    solicit donations." (cites omitted)).

[^408]: NPCC Comments at 10; Donald R. Davis Comments; Private Citizen
    Comments at 4; Gregory S. Reichenbach Comments.

[^409]: NPCC Comments at 10. *See also* Private Citizen Comments at 4;
    Gregory S. Reichenbach Comments.

[^410]: NAAG Comments at 39 (describing an example of a for-profit
    sending prerecorded messages "to residential phone numbers,
    promising to reduce interest rates and save consumers money repaying
    their credit card debt. The prerecorded message did not disclose how
    the savings would be achieved and did not identify any nonprofit
    organization. If a caller responded to the 1-800 number on the
    message, the caller reached the for-profit call center. In the sales
    pitch that followed, the telemarketer described credit counseling
    services offered by a nonprofit organization. However, the
    telemarketer solicited "enrollment fees" (between \$199-499),
    payable entirely to the for-profit company. . . Consumers interested
    in nonprofit credit counseling would be referred to a nonprofit
    credit counselor, but only after they paid hundreds of dollars to
    the for-profit marketing company."); *see also* Wayne G. Strang
    Comments at 7; City of New Orleans Comments at 9-10; Donald R. Davis
    Comments.

[^411]: AFP Comments at 3.

[^412]: Reese Comments at 10.

[^413]: DialAmerica Comments at 13-14. *See also* DialAmerica Reply
    Comments at 13 (DialAmerica's Sponsor Magazine Program donates 12.5%
    of the proceeds to the charity.).

[^414]: We again reiterate that calls that do not fall within the
    definition of "telephone solicitation" as defined in section
    227(a)(3) will not be precluded by the national do-not-call list.
    These may include calls regarding surveys, market research, and
    calls involving political and religious discourse. *See supra* para.
    37.

[^415]: *See* H.R. R[ep]{.smallcaps}. N[o]{.smallcaps}. 102-317 at 16-17
    (1991).

[^416]: *See* NPCC Comments at 13 ("Nonprofit and charitable
    organizations rely on the expertise and operational efficiencies of
    professional fundraisers to conduct their fundraising campaigns and
    disseminate their message. . . . *Such trained professionals offer
    significant resources, expertise and operational efficiencies that
    cannot be* *duplicated by nonprofit and charitable organizations*."
    (emphasis added; cites omitted))

[^417]: These restrictions are found in amended 47 C.F.R. §§ 64.1200(c)
    and (d).

[^418]: *See* 47 U.S.C. § 227(a)(3) and amended 47 C.F.R. §
    64.1200(f)(9).

[^419]: Similarly, an affiliate of a tax-exempt nonprofit organization
    that is itself not a tax-exempt nonprofit is not exempt from the
    TCPA rules when it makes telephone solicitations.

[^420]: *See* NPCC Comments at 10; AFP Comments at 3.

[^421]: Unlike debt collection calls, a consumer may "terminate" an
    established business relationship with a company offering debt
    consolidation services by requesting placement on a company-specific
    do-not-call list. *See supra* note 358.

[^422]: 47 U.S.C. § 227(b)(1)(A)(i)-(iii); 47 C.F.R. §
    64.1200(a)(1)(i)-(iii).

[^423]: 47 U.S.C. § 227(a)(1); *see also,* 47 C.F.R. § 64.1200(f)(1).

[^424]: *2002 Notice*, 17 FCC Rcd at 17473-74, paras. 23-24.

[^425]: *See, e.g.,* Mastercard Comments at 6; Verizon Comments at 23;
    HFS Comments at 7; Discover Comments at 8; CBA Comments at 7-8; Bank
    of America Comments at 5; ATA Comments at 113-114. *But see*
    American General Finance Comments at 1 (urging the Commission to
    clarify the definitions of "automatic telephone dialing system" and
    "autodialer," which focus on equipment that *has the capacity* to
    generate random number and sequential dialing patterns, rather than
    on whether the equipment is actually used in that fashion).

[^426]: *See, e.g.,* Mastercard Comments at 6; HFS Comments at 7;
    Verizon Comments at 23; Discover Comments at 8.

[^427]: *See, e.g.,* EPIC Comments at 12; City of Chicago Comments at
    9-11; Stewart Abramson Comments at 1-2; Michael C. Worsham Comments
    at 6.

[^428]: *See, e.g.,* Thomas M. Pechnik Comments at 4; Stewart Abramson
    Comments at 2 (FCC should not have to identify specific technologies
    covered by definition as technologies are always changing). *But
    see* Wayne G. Strang Comments at 6 (should ask Congress to change
    the definition to cover all devices capable of automatically dialing
    calls).

[^429]: *See* Thomas M. Pechnik Comments at 5; Michael C. Worsham
    Comments at 5.

[^430]: *See* LCC Comments at 7. LCC explains that, on behalf of certain
    clients, it installs terrestrial repeaters across the country, which
    receive satellite signals and retransmit the signals into areas that
    the signals would not otherwise reach. The repeaters contain an
    on-board modem, which may be programmed to call the client's number
    in the event a malfunction occurs. If the modem is programmed
    incorrectly, it may dial a number other than the number of the
    client. *See* LCC Comments at 2-3.

[^431]: *See, e.g.,* HFS Comments at 7; ATA Comments at 110; ABA
    Comments at 3.

[^432]: *See* ATA Comments at 113, n. 108; DMA Comments at 21 ("Some
    dialers are capable of being programmed for sequential or random
    dialing; some are not.").

[^433]: Mastercard Comments at 6.

[^434]: HFS Comments at 7.

[^435]: 47 U.S.C. § 227(a)(1).

[^436]: *See* 137 Cong. Rec. S18784 (1991) (statement of Sen. Hollings)
    ("The FCC is given the flexibility to consider what rules should
    apply to future technologies as well as existing technologies.").
    *See also Southern Co. v. FCC*, 293 F.3d 1338, 1346 (11th Cir. 2002)
    ("While the FCC is correct that the principle of nondiscrimination
    is the primary purpose of the 1996 Telecommunications Act, we must
    construe statutes in such a way to 'give effect, if possible, to
    every clause and word of a statute'.") (*quoting Williams v.
    Taylor*, 529 U.S. 362, 404 (2000) (internal quotation marks
    omitted)).

[^437]: ATA Comments at 113.

[^438]: NASUCA Comments at 4-5.

[^439]: One commenter suggests that databases of emergency and cellular
    numbers are commercially available which can be used to exclude
    emergency numbers, health care facilities and wireless numbers from
    an automated dialer's calling list. *See* ECN Comments at 3. The
    Commission is not persuaded that any such databases would include
    all numbers covered by the prohibition at 47 U.S.C. § 227(b)(1)(A),
    or that such databases are sufficiently accurate. Assuming, though,
    that predictive dialers can be programmed to avoid calling such
    numbers, there would be no reason to then exclude the dialing
    equipment from the TCPA's prohibition.

[^440]: *See* S. R[ep]{.smallcaps}. N[o]{.smallcaps}. 102-178 at 5
    *reprinted in* 1991 U.S.C.C.A.N. 1968, 1972-73 (1991) ("The
    Committee believes that Federal legislation is necessary to protect
    the public from automated telephone calls. These calls can be an
    invasion of privacy, an impediment to interstate commerce, and a
    disruption to essential public safety services.").

[^441]: *See* 47 U.S.C. § 227(a)(1).

[^442]: Because the statutory definition does not turn on whether the
    call is made for marketing purposes, we also conclude that it
    applies to modems that have the "capacity (A) to store or produce
    telephone numbers to be called, using a random or sequential number
    generator; and (B) to dial such numbers." *See* 47 U.S.C. §
    227(a)(1).

[^443]: Customer Premises Equipment is defined in the Communications Act
    as "equipment employed on the premises of a person (other than a
    carrier) to originate, route, or terminate telecommunications."
    *See* 47 U.S.C. § 153(14).

[^444]: *See* ATA Comments at 120; ATA Further Comments at 11-12; DMA
    Reply Comments at 17; WorldCom Comments at 41 (asserting that
    predictive dialers are customer premises equipment).

[^445]: *See* ATA Comments at 120-122 (noting that the Commission also
    has authority to forebear from adopting a specific rule governing
    predictive dialers to promote marketplace flexibility). *See also*
    DMA Comments at 17 ("Predictive dialers are customer premises
    equipment ("CPE"), and thus beyond the states' power to regulate
    pursuant to the Communications Act of 1934 and longstanding
    Commission rules and orders. These policies apply because predictive
    dialers are used interchangeably and inseparably for both inter- and
    intrastate communications, and are not susceptible to a segregated
    regulatory framework that would govern inter- and intrastate uses
    separately."); DMA Further Comments at 4.

[^446]: *See* *Amendment of Section 64.702 of the Commission's Rules and
    Regulations (Second Computer Inquiry)*, Docket No. 20828, 77 FCC2d
    384, Final Decision (1980) *(Computer II*). In the *Computer II*
    Order, the Commission explained that " In conferring jurisdiction
    upon this agency over 'all instrumentalities . . . incidental to . .
    . transmission,' the intent was '. . . to give the FCC ability to
    regulate any charge or practice associated with a common carrier
    service in order to insure that the carrier operated for the public
    benefit.'" *See Computer II*, 77 FCC2d at 450, para. 170.

[^447]: *Computer II*, 77 FCC2d at 442-43, para. 149; *see also In the
    Matter of Policy and Rules Concerning the Interstate, Interexchange
    Marketplace*, Report and Order, CC Docket Nos. 96-91 and 98-183, 16
    FCC Rcd 7418, 7422, para. 5 (March 30, 2001).

[^448]: *Computer II*, 77 FCC2d at 451, para. 172. The Commission
    explained that "\[e\]quipment manufacturers, distributors, and even
    regulated carriers routinely offer terminal equipment for sale or
    lease on an untariffed basis."

[^449]: *See* *Computer II*, 77 FCC2d at 451-52, paras. 172-173.
    ("\[S\]uch activities are not necessarily beyond the jurisdiction of
    the Commission to the extent they are encompassed within the
    definition of wire or radio communications in Section 3(a) of the
    Act. The definitions of wire and radio communications in Section
    3(a) and (b) are far-reaching and include 'all instrumentalities,
    facilities, apparatus, and services incidental to such
    transmission.'" Indeed we explicitly find that all terminal
    equipment used with interstate communications services are within
    the Act's definition of wire and radio communications. However, the
    fact that the provision of incidental 'instrumentalities,' etc. is
    within the subject matter jurisdiction of the Act does not mandate
    regulation of the 'instrumentalities.'") (footnotes omitted).

[^450]: *Computer II*, 77 FCC2d at 451-452, para. 173.

[^451]: The Commission earlier stated that "\[a\]ny regulation by tariff
    or otherwise of terminal equipment must be demonstrated to be
    reasonably ancillary to the effective performance of the
    Commission's responsibilities under Title II or 'imperative for the
    achievement of an agency's ultimate purposes.'") *Computer II*, 77
    FCC Rcd at 451-52, para. 173.

[^452]: *See* Private Citizen Comments at 7 ("California will be
    implementing a 1% abandonment rate soon."); HFS at 7 ("California
    adopted legislation requiring a maximum for abandoned calls, but the
    regulatory body charged with setting the maximum has, to our
    knowledge, been unable to establish a maximum yet."). Oklahoma bans
    the use of automatic or predictive dialing devices that abandon more
    than 5% of calls answered per day per telemarketing campaign. *See*
    Okla. Stat. tit. 15, §755.1 (2002). Virginia failed to pass
    legislation proposing to regulate the use of predictive dialers.
    *See* S.B. 918, 2003 Gen. Assem. (Va. 2003).

[^453]: In this context, war dialing uses automated equipment to dial
    telephone numbers, generally sequentially, and software to determine
    whether each number is associated with a fax line or voice line.

[^454]: *See* Thomas M. Pechnik Comments at 6; PRC Comments at 4-5;
    Michael C. Worsham Comments at 5; Carl Paulson Comments; Wayne G.
    Strang Reply Comments at 21.

[^455]: *See, e.g.,* Thomas M. Pechnik Comments at 5; Wayne G. Strang
    Reply Comments at 21.

[^456]: *See* amended rule at 47 C.F.R. § 64.1200(a)(7).

[^457]: 47 U.S.C. § 227(b)(1)(B); 47 C.F.R. § 64.1200(a)(2).

[^458]: 47 U.S.C. § 227(b)(2)(B).

[^459]: *See 1992 NPRM*, 7 FCC Rcd at 2737, para. 11. Among the examples
    of calls that do not include the transmission of any unsolicited
    advertisement, the Commission cited calls from a business that
    wishes to advise its employees of a late opening time due to
    weather; or calls from a nationwide organization that wishes to
    remind members of an upcoming meeting or change in schedule; or
    calls from a catalogue or delivery company to confirm the arrival,
    shipment, or delivery date of a product to a customer. We reiterate
    that such calls also would typically be covered by the exemption for
    an established business relationship. *See* amended 47 C.F.R. §
    64.1200(f)(3).

[^460]: *1992 TCPA Order*, 7 FCC Rcd at 8770-71, para. 34.

[^461]: *1992 TCPA Order*, 7 FCC Rcd at 8773-74, para. 40.

[^462]: NAAG Comments at 33 ("The telephone records subpoenaed for one
    autodialing telemarketer revealed the business was using 47 lines to
    leave messages that lasted less than 30 seconds. Considering that
    calls could be placed over at least a 14-hour period, the equipment
    could leave more than half a million calls per week."); Wayne G.
    Strang Comments at 5; Mathemaesthetics Comments at 7; Philip J.
    Charvat Comments at 5.

[^463]: Michael Sprinker Comments; Dale Carson Comments; Judith Hanes
    Comments; Jean Armstrong Comments; NACAA Comments at 2-3.

[^464]: *See, e.g.,* NACAA Comments at 2-3; Tom Burch Comments; James D.
    Gagnon Comments; Neil J. Nitzberg Comments at 1; John Cox Comments;
    NYSCPB -- Other Than DNC List Comments at 2.

[^465]: Debra Denson-Royal Oak Comments.

[^466]: Dennis C. Brown December 6, 2002 Comments at 4; David Purk
    Comments.

[^467]: *See, e.g*., NCL Comments at 5.

[^468]: NCL Comments at 5; Thomas Pechnik Comments at 8; TOPUC Comments
    at 4-5; Michael C. Worsham Comments at 9; City of New Orleans
    Comments at 8; J. Melville Capps Comments at 6-7; NAAG Comments at
    37; NYSCPB Comments at 12; S. Abramson Comments at 4; NACAA Comments
    at 4; Wayne G. Strang Comments at 16; Philip J. Charvat Comments at
    7; EPIC Comments at 13.

[^469]: *See, e.g.,* NAAG Comments at 36-37; TOPUC Comments at 5; J.
    Melville Capps Comments at 6; NYSCPB Comments at 12. *See also* NAAG
    at 33, n. 108 (describing a prerecorded message received by many
    state attorneys general offices which invited the called party to
    call an 800 number to participate in Disney's 100^th^ Anniversary
    celebration by visiting south Florida for a cost of \$99 per person
    for three days); NAAG at 37 (describing another message that
    advertised a "revolutionary new product" and asked consumers to
    attend a local meeting to learn how to make a six-figure income. At
    the meeting, consumers are encouraged to purchase new products for
    resale.)

[^470]: Wells Fargo Comments at 2; HFS Comments at 8; AT&T Wireless
    Comments at 27-28.

[^471]: Wells Fargo Comments at 2; *see also* AT&T Wireless Comments at
    27-28.

[^472]: Joe Shields Reply Comments at 6-7.

[^473]: *TCPA*, Section 2(10), *reprinted in* 7 FCC Rcd at 2744.

[^474]: *TCPA*, Section 2(12), *reprinted in* 7 FCC Rcd at 2744-45.

[^475]: 47 U.S.C. § 227(a)(4); 47 C.F.R. § 64.1200(f)(5).

[^476]: *See* 47 U.S.C. § 227(a)(4).

[^477]: Therefore, a prerecorded message that contains language
    describing a new product, a vacation destination, or a company that
    will be in "your area" to perform home repairs, and asks the
    consumer to call a toll-free number to "learn more," is an
    "unsolicited advertisement" under the TCPA if sent without the
    called party's express invitation or permission. *See* 47 U.S.C. §
    227(a)(4). However, as long as the message is limited to
    identification information only, such as name and telephone number,
    it will not be considered an "unsolicited advertisement" under our
    rules. *See* FTC Further Comments at 32. *But see* Joe Shields
    Further Comments at 4-5 (arguing that all prerecorded messages that
    introduce a business are by definition an advertisement).

[^478]: The current rule exempts from the prohibition any call that is
    made for a commercial purpose but does not include the transmission
    of any unsolicited advertisement. *See* 47 C.F.R. § 64.1200(c)(2).
    We amend the rule to exempt a call that is made for a commercial
    purpose but does not include or introduce an unsolicited
    advertisement or *constitute a telephone solicitation*. *See*
    amended rule at 47 C.F.R. § 64.1200(a)(2)(iii).

[^479]: *See, e.g.,* NAAG Comments at 43.

[^480]: *See TCPA*, Section 2(12) and (13), *reprinted in* 7 FCC Rcd at
    2744-45.

[^481]: *See, e.g.,* Michael Worsham Comments at 9; Stewart Abramson
    Comments; City of New Orleans Comments at 8; J. Melville Capps
    Comments at 6.

[^482]: *See 2002 Notice*, 17 FCC Rcd at 17478, para. 31.

[^483]: Wayne G. Strang Reply Comments at 6-7.

[^484]: *See* 47 C.F.R. § 64.1200(d).

[^485]: 47 C.F.R. § 64.1200(e)(2)(iv).

[^486]: 47 C.F.R. § 64.1200(f)(3).

[^487]: *2002 Notice*, 17 FCC Rcd at 17476-77, para. 28.

[^488]: AT&T Wireless Comments at 23; ARDA Comments at 9; ABA Comments
    at 4; Stewart Abramson Comments at 3; NCL Comments at 4; Carl
    Paulson Comments.

[^489]: City of New Orleans Comments at 8; NCL Comments at 4; PRC
    Comments at 5-6.

[^490]: *See, e.g.,* Carl Paulson Comments; City of New Orleans Comments
    at 7-8; Joe Shields Reply Comments at 6-7.

[^491]: *See* amended 47 C.F.R. § 64.1200(b).

[^492]: This would be 9 a.m. -- 5 p.m., Monday through Friday, during
    the particular telemarketing campaign. A seller or telemarketer's
    telephone number must permit consumers to make their do-not-call
    requests in a timely manner. Therefore, the seller or telemarketer
    must staff the "do-not-call number" sufficiently or use an automated
    system for processing requests in such a way that consumers are not
    placed on hold or forced to wait for an agent to answer the
    connection for an unreasonable length of time. We also reiterate the
    Commission's determination in its *1995 Reconsideration Order* that
    any number provided for identification purposes may not be a number
    that requires the recipient of a solicitation to incur more than
    nominal costs for making a do-not-call request (*i.e.,* for which
    charges exceed costs for transmission of local or ordinary
    station-to-station long distance calls). *See 1995 Reconsideration
    Order*, 10 FCC Rcd at 12409, para. 38. *See also* amended 47 C.F.R.
    § 64.1200(b)(2).

[^493]: *See* amended 47 C.F.R. § 64.1200(d)(3).

[^494]: 47 U.S.C. § 227(b)(1)(B).

[^495]: 47 C.F.R. § 64.1200(c)(2).

[^496]: *2002 Notice*, 17 FCC Rcd at 17478-79, para. 32.

[^497]: NYSCPB states that they have not received complaints on these
    types of messages by radio and television stations. *See* NYSCPB
    Comments at 13.

[^498]: Thomas Pechnik Comments at 9 (prerecorded messages sent by radio
    stations are commercial ads covered by the TCPA); Hershovitz
    Comments at 3-4 (such messages clearly prohibited under the TCPA);
    NAB Comments at 3 (broadcaster audience invitation calls do not
    promote the commercial availability or quality of property, goods or
    services and are therefore exempted under TCPA rules); TBT Comments
    at 1 (invitation to listen to a radio station is not a solicitation
    as defined by FCC); Michael C. Worsham Comments at 9 (true purpose
    of call is not charitable or political); Wayne G. Strang Reply
    Comments at 13-14 (calls made to increase listener/viewer shares are
    commercial in nature, even though no sale was made or was intended
    to be made); Shaw Further Comments at 4 (calls to invite a consumer
    to listen to a radio station are regulated by the TCPA and may not
    be made to numbers on the do-not-call list).

[^499]: *See* amended 47 C.F.R. § 64.1200(a)(2)(iii). However, messages
    that encourage consumers to listen to or watch programming,
    including programming that is retransmitted broadcast programming
    for which consumers must pay (e.g., cable, digital satellite, etc.),
    would be considered advertisements for purposes of our rules.

[^500]: *2002 Notice*, 17 FCC Rcd at 17473-74, para. 24.

[^501]: *See supra* note 31 for a description of a "predictive dialer."

[^502]: "Dead air" may also be the result of Answering Machine Detection
    (AMD) software which is used to determine whether the call has
    reached a live person or an answering machine. AMD may be programmed
    to have a certain amount of time in which to determine whether an
    answering machine or live person has answered the call. During this
    time, the consumer may experience "dead air" until either the dialer
    transfers the called party to a sales agent or disconnects the call.
    *See* ECN Comments at 3-4; Alek Szlam Comments at 4.

[^503]: *See 2002 Notice*, 17 FCC Rcd at 17465, para. 7, n.38.

[^504]: *See 2002 Notice*, 17 FCC Rcd at 17475, para. 26.

[^505]: *2002 Notice*, 17 FCC Rcd at 17475-76, para. 26.

[^506]: *See, e.g.*, NACAA Comments at 3; Pacesetter Comments at 5;
    WorldCom Comments at 41. We note that the vast majority of
    commenters that engage in telemarketing described their use of
    predictive dialers.

[^507]: *See, e.g.*, F. Jenny Holder Comments at 1; Caroline Henriques
    Comments.

[^508]: *See, e.g.,* NCL Comments at 4 ("It is the equivalent of sending
    3 door-to-door salespeople to a neighborhood with twenty homes,
    using a remote technology to knock on all the doors at once, and
    leaving seventeen homeowners standing at their doors wondering who
    was there."); NACAA Comments at 3-4; TOPUC Comments at 3; NAAG
    Comments at 34; Edwin Bailey Hathaway Comments at 1; Stewart
    Abramson Comments at 1; Kent Rausch Comments (worries that when his
    children answer the phone, there is a predator on the other end of
    the line).

[^509]: *See, e.g.,* Thomas Callahan Comments; Vivian Sinclair Comments;
    Carmen Brown Comments (caretaker of husband with MS); Henry Jackson
    Comments.

[^510]: *See, e.g.,* Edwin Bailey Hathaway Comments; Karen M. Meyer
    Comments; AARP Comments at 2.

[^511]: *See, e.g.,* NACAA Comments at 3; Thomas Pechnik Comments at 2;
    Stewart Abramson Comments at 1; Katherine S. Raulston Comments at 1.

[^512]: TOPUC Comments at 3.

[^513]: *See, e.g.,* NAAG Comments at 34-35 (a 0% abandonment rate is
    the appropriate standard); NASUCA Comments at 3; TOPUC Comments at
    3; AARP Comments at 2; Michael C. Worsham Comments at 6.

[^514]: *See, e.g.,* Mathemaesthetics Comments at 6; NCL Comments at 4;
    Private Citizen Comments at 7.

[^515]: ATA Comments at 109.

[^516]: Pacesetter Comments at 5; Teleperformance Comments at 2; ATA
    Comments at 109; MBNA Comments at 7; NAA Comments at 15-16; Allstate
    Comments at 2.

[^517]: ATA Comments at 109.

[^518]: SER Comments at 2; MPA Comments at 21.

[^519]: SBC Reply Comments at 4; Sytel Reply Comments at 4; DMA Reply
    Comments at 19.

[^520]: Cendant Comments at 3; CBA Comments at 8; Bank of America
    Comments at 5; ABA Comments at 3; DialAmerica Comments at 10; ITC
    Further Comments at 4.

[^521]: Sytel Comments at 7; DMA Comments at 31; Nextel Further Comments
    at 11 (stating that any Commission regulation of call abandonment
    rates should be no more restrictive than the maximum three percent
    rate established by the FTC).

[^522]: Sytel Reply Comments at 2, 4.

[^523]: *See FTC Order*, 68 Fed. Reg. at 4642. The FTC found that a
    three (3) percent abandonment rate was "feasible, realistic" and
    "fully capable" of being achieved. *Id.* at 4643. *See also* FTC
    Further Comments at 33-38.

[^524]: Section 310.4(b)(1)(iv) of the amended TSR defines a prohibited
    abandoned outbound call as one in which the recipient of the call
    answers the call, and the telemarketer does not connect the call to
    a sales representative within two seconds of the person's completed
    greeting. *FTC Order*, 68 Fed. Reg. at 4642. The FTC notes that this
    definition of abandoned call covers "dead air" and "hang-up" calls,
    in which the telemarketer hangs up on a called consumer without
    connecting that consumer to a sales representative. *Id.*

[^525]: Under FTC Rule 310.4(b)(4), a seller or telemarketer will not be
    liable for violating 310.4(b)(1)(iv) if: (i) the seller or
    telemarketer employs technology that ensures abandonment of no more
    than three (3) percent of all calls answered by a person, measured
    per day per calling campaign; (ii) the seller or telemarketer, for
    each telemarketing call placed, allows the telephone to ring for at
    least fifteen (15) seconds or four (4) rings before disconnecting an
    unanswered call; (iii) whenever a sales representative is not
    available to speak with the person answering the call within two (2)
    seconds after the person's completed greeting, the seller or
    telemarketer promptly plays a recorded message that states the name
    and telephone number of the seller on whose behalf the call was
    placed; and (iv) the seller or telemarketer, in accordance with
    310.5(b)-(d), retains records establishing compliance with
    310.4(b)(4)(i)-(iii). *FTC Order,* 68 Fed. Reg. at 4643-45.

    The FTC's rules on call abandonment were to go into effect on March
    31, 2003. In response to petitions filed by the DMA and ATA, the FTC
    determined to stay the date by which it would require compliance
    with the abandoned call rules until October 1, 2003. The FTC
    concluded that "staying these provisions will provide ample time for
    all telemarketers who use predictive dialers to obtain, install, and
    test the necessary hardware or software, and should alleviate
    concerns that predictive dialer manufacturers might not have
    adequate supplies of the necessary products" by the March 31
    deadline*.* *See* Letter from Donald S. Clark, Secretary, FTC, to
    Robert Corn-Revere, Ronald G. London and Paul A. Werner III, Counsel
    for the ATA, March 14, 2003 (available at
    \<[http://www.ftc.gov/os/2003/03/030314ataletter.htm]{.underline}\>).
    *See also* *Telemarketing Sales Rule* (Federal Trade Comm'n, Stay of
    Compliance Date), 68 Fed. Reg. 16414 (April. 4, 2003).

[^526]: *See 2002 Notice*, 17 FCC Rcd at 17475-76, para. 26 (seeking
    comment on what approaches we might take to minimize any harm that
    results from the use of predictive dialers and on alternative
    approaches to the problems associated with abandoned calls).

[^527]: However, some industry commenters indicate that a 3 percent rate
    still obtains productivity benefits. *See, e.g,* WorldCom Comments
    at 44.

[^528]: *See*
    \<[http://www.the-dma.org/guidelines/dotherightthing.pdf]{.underline}.\>

[^529]: *See, e.g.*, Sprint Comments at 6 (uses 5%); CMOR Comments at 6
    (uses a 1% rate); WorldCom Comments at 44 (uses 3-5%); *see also*
    ATA Reply Comments at 70 (many telemarketers from all industries use
    a 5% limit on abandoned calls); Technion Comments at 5 (uses 5%
    abandonment rate).

[^530]: *See, e.g.,* Edwin Bailey Hathaway Comments; Stewart Abramson
    Comments at 1; Kent Rausch Comments.

[^531]: Reese Comments at 7; ERA Comments at 16; MPA Comments at 20; DMA
    Reply Comments at 19-20; DialAmerica Reply Comments at 3-4 (noting
    that California allows compliance with its abandoned call rules over
    a 30-day period); DialAmerica Further Reply Comments at 5 (stating
    that it can achieve an average abandonment rate of 5% or less when
    the measuring period spans a month).

[^532]: WorldCom Reply Comments at 20; WorldCom Further Comments at 8
    (advocating that the abandonment rate be measured over a six-month
    period); Teleperformance Further Comments at 4; *see also* MPA
    Comments at 21.

[^533]: *See, e.g.,* Reese Comments at 7; WorldCom Reply Comments at 20.

[^534]: *See* ERA Comments at 16; Stonebridge Further Comments at 6
    (three percent abandonment rate imposes an unnecessary burden on
    telemarketers, which should be alleviated by eliminating any
    reference to a per-day measure); Teleperformance Further Comments at
    3.

[^535]: *See* WorldCom Reply Comments at 19-20; Reese Comments at 7.

[^536]: *See, e.g.,* Katherine S. Raulston Comments; Edwin Bailey
    Hathaway Comments; NAAG Comments at 34.

[^537]: *See supra* discussion on the use of prerecorded messages,
    paras. 136-144.

[^538]: Calls that reach voicemail or an answering machine will not be
    considered "answered" by the called party. Therefore, a call that is
    disconnected upon reaching an answering machine will not be
    considered an abandoned call.

[^539]: *See* 16 C.F.R. § 310.4(b)(1)(iv).

[^540]: *See, e.g.,* MBNA Comments at 7-8; ATA at 112. *But see* Reese
    Comments at 6 ("Abandons should not be defined so as to include any
    measure of 'time to transfer,' as these timings are not available in
    currently installed dialers.").

[^541]: Technion Comments at 5.

[^542]: ATA Comments at 117 (suggesting a 4-second transfer
    requirement); DMA Reply Comments at 19 ("AMD serves perfectly
    legitimate business purposes causing negligible harm to consumers,
    but current technology simply will not ensure that 'dead air' lasts
    less than five seconds.").

[^543]: *But see* Alek Szlam Comments at 5 (stating that "\[o\]ne
    possible solution is to require the threshold in the AMD to be set
    to err on the side of connecting vs. disconnecting. If the dialer
    cannot determine within the first second whether it is a live call
    or answering machine, it will assume that it is a live call and
    connect it to an agent. On the agent side, when they are passed a
    call that turns out to be an answering machine, they should have the
    ability to quickly terminate the call or to push a button to play a
    message. This approach will reduce the amount of dead air, while not
    significantly impacting the productivity of the call center
    agent."). *See also* Sytel Comments at 5 ("We believe that the loss
    of productivity (measured in terms of talk time per agent hour) that
    results when answering machines are connected to agents in call
    centers is not significant when set against the improvement in call
    quality that results from having live calls connected to agents
    immediately i.e. not exposing consumers to 'dead air' whilst
    detection is done by the switch.").

[^544]: *See* DialAmerica Comments at 10; ABA Comments at 4; Hershovitz
    Comments at 9. We reiterate that under the TCPA, it is unlawful to
    initiate any telephone call to any residential line using a
    prerecorded message without the prior express of the called party,
    absent an emergency or an exemption by Commission rule or order.
    Delivery of a message to an answering machine does not render the
    call lawful. *See* 47 U.S.C. § 227(b)(1)(B).

[^545]: Reese Comments at 9; *see also* Convergys Comments at 7
    ("Elimination of the use of AMD would cause Convergys to
    re-revaluate its participation in the industry.")

[^546]: Sytel Comments at 3-4; Alek Szlam Comments at 4.

[^547]: DialAmerica Comments at 10.

[^548]: *See* Sytel Comments at 3-5. The Commission notes that in
    addition to requiring the delivery of a prerecorded identification
    message when a call is abandoned, Commission rules also permit
    prerecorded messages in limited circumstances, including when a
    company has an established business relationship with a consumer.
    *See* 47 U.S.C. § 227(b)(1)(B) and 47 C.F.R. § 64.1200(a)(2).

[^549]: *See* FTC's amended TSR at 16 C.F.R. § 310.4(b)(4)(iii); *see
    also FTC Order*, 68 Fed. Reg. at 4644.

[^550]: By requiring such notice, we believe consumers will be less
    likely to return the call simply to learn the purpose of the call
    and possibly incur unnecessary charges.

[^551]: *See supra* para. 137. *See also* Wayne G. Strang Further
    Comments at 5-6.

[^552]: *See, e.g.,* NASUCA Further Reply Comments at 8-9 (because the
    FTC's identification requirements mitigate the nuisance aspects of
    abandoned calls, the FCC should make an exception for prerecorded
    messages that are used to comply with the FTC's safe harbor
    provision).

[^553]: As long as the message is limited to identification information
    only, it will not be considered an "unsolicited advertisement" under
    our rules. *See* FTC Further Comments at 32. *But see* Joe Shields
    Further Comments at 4-5 (arguing that all prerecorded messages that
    introduce a business are by definition an advertisement).

[^554]: *See supra* discussion on prerecorded messages, paras. 136-144.
    Contrary to the claims of some parties, even an incidental reference
    to a product or service could transform the identification message
    into a prohibited unsolicited advertisement. *See* Nextel Further
    Comments at 14-15.

[^555]: *See 1992 TCPA Order*, 7 FCC Rcd at 8770-71, para. 34.

[^556]: *But see* FTC Further Comments at 40-41 ("The FCC may need to
    eliminate the established business relationship exemption with
    respect to prerecorded message calls, especially if, as the FTC
    urges, it includes in its revised TCPA regulations provisions
    addressing the practice of call abandonment and creating a safe
    harbor.")

[^557]: *See, e.g.,* NAAG Comments at 39; Joe Shields Reply Comments at
    6-7.

[^558]: *See* amended 47 C.F.R. § 64.1200(a)(6)(i).

[^559]: *See* FTC Further Comments at 40-41 (under the FTC's amended
    rules, such prerecorded messages would be prohibited as abandoned
    calls).

[^560]: DMA Comments, Exhibit 1 (Guidelines for Ethical Business
    Practice) at 23.

[^561]: WorldCom Reply Comments at 20-21.

[^562]: Sytel Comments at 3.

[^563]: WorldCom indicated that such recommendation should not be
    implemented, yet stated that its dialers are programmed to
    disconnect the call if there is no answer after 4 ring cycles, which
    provides sufficient time for a consumer to reach the phone. *See*
    WorldCom Reply Comments at 20-21.

[^564]: *See* *1992 TCPA Order*, 7 FCC Rcd at 8773-74, para. 40.

[^565]: Because this will result in an inconsistency with the FTC's
    rules, we will discuss the call abandonment rules in the report due
    to Congress within 45 days after the promulgation of final rules.
    *See* Do-Not-Call Act, Section 4.

[^566]: *See* Notices of *Ex Parte Presentations* from WorldCom to FCC,
    filed May 23, 2003 and June 16, 2003 (advocating a 9.5-month
    implementation period for the call abandonment rules).

[^567]: *2002 Notice*, 17 FCC Rcd at 17485, para. 45 (footnote omitted);
    *see also* 47 U.S.C. § 227(b)(2)(C).

[^568]: *1992 TCPA Order*, 7 FCC Rcd at 8775, para. 45.

[^569]: *2002 Notice*, 17 FCC Rcd at 17485, para. 43.

[^570]: *2002 Notice*, 17 FCC Rcd at 17485, para. 45

[^571]: Wireless carriers will begin providing local number portability
    (LNP) on November 24, 2003. LNP "means the ability of users of
    telecommunications services to retain, at the same location,
    existing telecommunications numbers without impairment of quality,
    reliability, or convenience when switching from one
    telecommunications carrier to another." 47 U.S.C. § 153(30). *See
    also* 47 C.F.R. § 52.21(k).

[^572]: Wireless carriers began participating in thousands-block number
    pooling (pooling) on November 24, 2002. Thousands-block number
    pooling is a process by which the 10,000 numbers in a central office
    code (NXX) are separated into to sequential blocks of 1,000 numbers
    each (thousands-blocks), and allocated separately within a rate
    center. *See* 47 C.F.R. § 52.20(a).

[^573]: *2002 Notice*, 17 FCC Rcd at 17485-86, para. 46.

[^574]: *Telephone Number Portability*, CC Docket No. 95-116, First
    Report and Order and Further Notice of Proposed Rulemaking, 11 FCC
    Rcd 8352, 8393, para. 77 (1996) (*Number Portability First Report
    and Order*).

[^575]: *Telephone Number Portability*, CC Docket No. 95-116, First
    Memorandum Opinion and Order on Reconsideration, 12 FCC Rcd 7236,
    7272-3, paras. 59-60 (1997) (*Number Portability First Order on
    Reconsideration*).

[^576]: *Verizon Wireless's Petition for Partial Forbearance from the
    Commercial Mobile Radio Services Number Portability Obligation*, WT
    Docket No. 01-184, and *Telephone Number Portability*, CC Docket No.
    95-116, Memorandum Opinion and Order, 17 FCC Rcd 14972, 14981, para.
    23 *affirmed* *CTIA v. FCC*, No. 02-1264, 2003 WL 21293569 (D.C.
    Cir. June 6, 2003).

[^577]: *Id.* at 14985-86.

[^578]: *Numbering Resource Optimization*, CC Docket No. 99-200, First
    Report and Order and Further Notice of Proposed Rulemaking, 15 FCC
    Rcd 7574 (2000) (*Numbering Resource Optimization First Report and
    Order*).

[^579]: *Numbering Resource Optimization,* CC Docket No. 99-200, Third
    Order on Reconsideration in CC Docket No. 99-200, Third Further
    Notice of Proposed Rulemaking in CC Docket No. 99-200, and Second
    Further Notice of Proposed Rulemaking in CC Docket No. 95-116. 17
    FCC Rcd 4784 at 4787, para. 9 (2002).

[^580]: *Numbering Resource Optimization Implementation of the Local
    Competition Provisions of the Telecommunications Act of 1996,
    Telephone Number Portability*, CC Docket Nos. 99-200, 96-98, and
    95-116, Fourth Report and Order and Fourth Further Notice of
    Proposed Rulemaking, FCC 03-126 (rel. June 18, 2003), para. 11
    (*Numbering Resource Optimization Fourth Report and Order*).

[^581]: *Numbering Resource Optimization Fourth Report and Order*. *See
    also* *Numbering Resource Optimization*, CC Docket No. 99-200,
    Order, 17 FCC Rcd 7347 (2002) (*Pooling Rollout Schedule*).

[^582]: *See* *Verizon Wireless Petition for Partial Forbearance from
    the Commercial Mobile Radio Services Number Portability Obligation*,
    WT Docket No. 01-184, and Telephone Number Portability, CC Docket
    No. 95-116, Memorandum Opinion and Order, 17 FCC Rcd 14972,
    *affirmed* *CTIA v. FCC*, No. 02-1264, 2003 WL 21293569 (D.C. Cir.
    June 6, 2003).

[^583]: *But see* April Jordan Comments at 1; Mark A. Hiner Comments at
    2; Rhett Riviere Comments (all three of whom received marketing
    calls on their cell phones); AT&T Wireless Comments at 29 ("little
    telemarketing is directed to wireless subscribers . . . \[although\]
    such activity likely will increase.").

[^584]: *See, e.g.,* CTIA Comments at 5 ("having built it, \[they\] will
    come"); AT&T Wireless Comments at 29 (reported receiving some
    complaints from customers regarding calls to wireless phones).

[^585]: ARDA Comments at 12; BellSouth Comments at 6-7. *But see* Nextel
    Comments at 21-22 (whose report indicates that only 3 percent of
    wireless service subscribers have used their mobile phones to
    displace traditional residential landline service).

[^586]: AT&T Wireless Reply Comments at 21.

[^587]: Cingular Wireless Comments at 5; DMA Comments at 35; NeuStar
    Comments at 2.

[^588]: *See* \<<http://www.dmaconsumers.org/cgi/offtelephonedave>\>
    (accessed June 2, 2003).

[^589]: Cingular Wireless Comments at 5. This service provides a list of
    280 million phone numbers that are currently used or have been set
    aside for CMRS carriers. *Id.*

[^590]: American Bankers Association Comments at 5; AT&T Wireless
    Comments at 29; American Teleservices Association Reply at 78;
    Cingular Wireless Comments at 4; AT&T Wireless Reply at 21. One
    commenter, however, state that calls to wireless phones are an
    existing and growing problem. CTIA Comments at 5. *See also* AT&T
    Wireless Reply at 21 ("...it is likely that telemarketing to
    wireless phones will increase...").

[^591]: Cingular Wireless Comments at 4-5.

[^592]: *See, e.g.,* NASUCA Comments at 19 (suggesting that
    telemarketing calls to wireless phones be prohibited unless
    expressly authorized by the subscriber); NCL Comments at 6-7; TOPUC
    Comments at 7; NAAG Comments at 35-36.

[^593]: *See, e.g*., J. Melville Capps Comments; City of New Orleans
    Comments at 12.

[^594]: *See* J. Melville Capps Comments; J. Shaw Comments at 5; NCL
    Comments at 6-7; City of Chicago Comments at 13; NAAG Comments at
    35-36; EPIC Comments at 13 ( arguing that many consider their
    wireless phone more personal than their wireline phone).

[^595]: *See* NAAG Comments at 35; CTIA Comments at 4-5 (arguing that
    the depletion of one's minutes by unwanted telemarketing calls is a
    cost. Telemarketers have no way of knowing what rate plan a consumer
    has.).

[^596]: *See* Sprint Comments at 10; Verizon Wireless Reply Comments at
    7 (noting that statutory prohibition on autodialing and artificial
    messages to wireless service is absolute).

[^597]: ATA Comments at 126-128; ATA Reply Comments at 77-80; CBA
    Comments at 9 (arguing that premature amendments to the rules could
    stifle the evolution of mobile commerce).

[^598]: AGF Comments at 2.

[^599]: *See, e.g*., AGF Comments at 1.

[^600]: CMOR Comments at 7 (if calls to cell phones are not permitted,
    the quality of survey research will be harmed). *But see* John Shaw
    Reply Comments at 13 (if survey calls are exempted from the TCPA,
    many sham surveys could result as telemarketers try to circumvent
    the regulations).

[^601]: HFS Comments at 10; BellSouth Comments at 6-7; Bank of America
    Comments at 6; AGF Comments at 1.

[^602]: ATA Comments at 130-134. *See also* HFS Comments at 10 (urging
    the Commission to permit even those calls to wireless numbers made
    by autodialers and prerecorded messages).

[^603]: *See* 47 U.S.C. § 227(b)(1), which provides that it is "unlawful
    for any person within the United States to make any call (other than
    a call made for emergency purposes or made with the prior express
    consent of the called party) using any automatic telephone dialing
    system or an artificial or prerecorded voice . . . to any telephone
    number assigned to a paging service, cellular telephone service,
    specialized mobile radio service, or other radio common carrier
    service, or any service for which the called party is charged for
    the call."

[^604]: 47 C.F.R. § 64.1200(a)(1)(iii).

[^605]: 47 U.S.C. § 227(b)(1)(A)(iii).

[^606]: SMS, for example, "provides the ability for users to send and
    receive text messages to and from mobile handsets with maximum
    message length ranging from 120 to 500 characters." *Section 6002(B)
    of the Omnibus Budget Reconciliation Act of 1993*, 17 FCC Rcd 12985,
    13051 (2002).

[^607]: *TCPA*, Section 2(10), *reprinted in* 7 FCC Rcd at 2744. The
    TCPA prohibits the initiation of 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 for emergency purposes or is exempted by
    Commission rule or order. See 47 U.S.C. § 227(b)(1)(B).

[^608]: *See, e.g.,* Verizon Wireless Comments at 11; J. Shaw Comments
    at 5; NAAG Comments at 40-41.

[^609]: *See, e.g.,* AT&T Wireless Comments at 24.

[^610]: Consistent with our determination in 1992, calls made by
    cellular carriers to their subscribers, for which subscribers are
    not charged in any way for the call (either on a per minute, per
    call, or as a reduction in their "bucket" of minutes) are not
    prohibited under the TCPA. *See* Verizon Wireless Comments at 11
    (noting that for "bucket" plans, exceeding the bucket allowance is
    not unusual).

[^611]: We note, however, that the TCPA already prohibits live
    solicitation calls to wireless numbers using an autodialer. *See* 47
    U.S.C. § 227(b)(1).

[^612]: Registration on the do-not-call database will not prevent calls
    from entities that have an established business relationship with a
    wireless subscriber. Wireless subscribers who receive such live
    calls can easily make a company-specific do-not-call request.
    Moreover, we note that the record reveals that telemarketing to
    wireless numbers is not widespread at this time.

[^613]: *See* Bell South Comments at 6-7; ARDA Comments at 12.

[^614]: A USA Today/CNN/Gallop poll found that almost one in five mobile
    telephony users regard their wireless phone as their primary phone*.
    2002 CMRS Competition Report*, Section II.A.1.e, citing Michelle
    Kessler, *18% See Cellphones as Their Main Phone,* USA Today, Feb.
    1, 2002.

[^615]: *See* 47 C.F.R. § 64.1200(e).

[^616]: *See supra* paras. 33-36. *See also* 47 U.S.C. §
    227(b)(1)(A)(iii).

[^617]: *See, e.g.,* Citigroup Comments at 6; Cingular Wireless Comments
    at 6-7; John Shaw Reply Comments at 14.

[^618]: *See supra* paras. 160-163.

[^619]: *See supra* para. 163.

[^620]: Cingular Wireless Comments at 5; DMA Comments at 35; Letters
    from Neustar to FCC, filed January 23, 2003 and May 5, 2003.

[^621]: *See* Letter from Neustar to FCC, filed June 4, 2003.

[^622]: ABA Comments at 5; AT&T Wireless Comments at 29; Cingular
    Wireless Comments at 4; ATA Reply Comments at 78; AT&T Wireless
    Reply Comments at 21.

[^623]: *See* ATA Comments at 134-36; BMO Financial Group Comments at 6;
    Sprint Comments at 21; ATA Reply Comments at 82. Commenters also
    suggest other exceptions, such as where a subscriber uses wireless
    as his sole telephone service, AGF Comments at 1, or where the
    subscriber provides his wireless number as a contact number to a
    business. *Id.* *See also* Bank of America Comments at 6; CBA
    Comments at 9; BellSouth Comments at 6-7.

[^624]: *See* *1992 TCPA Order*, 7 FCC Rcd at 8762, para. 17.

[^625]: *2002 Notice*, 17 FCC Rcd at 17473*,* para 22.

[^626]: Thomas Pechnik Comments at 4; TOPUC Comments at 3; Wayne G.
    Strang Comments at 15; Michael C. Worsham Comments at 4; Samuel E.
    Whitley Comments at 2; HFS Comments at 6; CTIA Comments at 7;
    Michael J. Blitch Comments at 5; AT&T Wireless Comments at 23; ARDA
    Comments at 9; Louis J Hoppman Jr. Comments; PUC of Ohio Comments at
    19; TN AG Comments at 13; DialAmerica Comments at 11-12; Stewart
    Abramson Comments at 3; Thomas F. Kirby Comments; David Griffith
    Comments; Ghita & Stephan Strain Comments.

[^627]: *See, e.g.,* Brad Totten Comments at 3; DC Hunter Comments;
    James D. Gagnon Comments; Brian Klug Comments; Thomas Pechnik
    Comments at 4; NCL Comments at 3; EPIC Comments at 12; Verizon Reply
    Comments at 12.

[^628]: *See, e.g.,* F. Jenny Holder Comments at 1; Thomas Callahan
    Comments; Michael C. Worsham Comments at 2; NCL Comments at 4;
    Gregory S. Reichenbach Comments; TOPUC Comments at 6-7; EPIC
    Comments at 12; Stewart Abramson Comments at 3; Thomas Pechnik
    Comments at 4; AGF Comments at 4; Joe Shields Comments at 7.

[^629]: OPC-DC Comments at 6; Janice G. Farkosh Comments; Leslie Price
    Comments; Josephine K. Presley Comments.

[^630]: *See, e.g.,* Verizon Comments at 18; PRC Comments at 5; NYSCPB
    Comments at 9; PUC of Ohio Comments at 19.

[^631]: OPC-DC Comments at 6; Owen O'Neill Comments at 1; TOPUC Comments
    at 3; Technion Comments at 6-7; Verizon Comments at 18; PUC of Ohio
    Comments at 19, NASUCA Comments at 3; Thomas Pechnik Comments at 4.
    *But see* NAA Comments at 17; Nextel Comments at 17-18; Comcast
    Comments at 14; Teleperformance Comments at 3; ABA Comments at 3
    (should restrict caller ID blocking, but not require the
    transmission of caller ID).

[^632]: Stewart Abramson Comments at 3.

[^633]: Teleperformance Comments at 3; WorldCom Comments at 45; DMA
    Reply Comments at 30; Mastercard Comments at 7; Nextel Comments at
    17-18; SER Comments at 2; Sprint Comments at 7; ECN Comments at 9
    (asserting that telemarketers will provide caller ID when
    technologically feasible, and thus, the Commission need not adopt a
    caller ID requirement).

[^634]: Teleperformance Comments at 3; WorldCom Comments at 45; DMA
    Reply Comments at 30; Nextel Comments at 18; SER Comments at 2;
    Sprint Comments at 7-8.

[^635]: WorldCom Reply Comments at 23.

[^636]: WorldCom Reply Comments at 23. We note that both typical T-1 and
    ISDN trunks contain 24 channels. ISDN trunks dedicate one channel
    specifically to data transmission, while typical T-1 lines dedicate
    all 24 channels to voice transmission.

[^637]: DialAmerica Comments, Attachment A at 1.

[^638]: DialAmerica Comments, Attachment A at 2.

[^639]: DialAmerica Comments, Attachment A at 1.

[^640]: WorldCom Reply Comments at 24.

[^641]: "Signaling System 7" (SS7) refers to a carrier to carrier
    out-of-band signaling network used for call routing, billing and
    management. *See* 47 C.F.R. § 64.1600(f).

[^642]: DMA Reply Comments at 30.

[^643]: *See* 47 C.F.R. § 64.1601(d).

[^644]: DMA Reply Comments at 29-30. *But see* NASUCA Comments at 9;
    Verizon Comments at 18 (indicating that caller ID is technically
    viable because CPN is transmitted to the LECs).

[^645]: DMA Reply Comments at 30; WorldCom Reply Comments at 26.

[^646]: *See, e.g.,* DMA Reply Comments at 30.

[^647]: Jeff Mitchell Comments at 1; Martin C. Kaplan Comments at 2;
    City of New Orleans Comments at 8.

[^648]: Jeff Mitchell Comments at 1; NCL Comments at 4; Xpedite Systems
    Comments at 12; PRC Comments at 5.

[^649]: ECN Comments at 4.

[^650]: *FTC Order*, 68 Fed. Reg. at 4623.

[^651]: *FTC Order*, 68 Fed. Reg. at 4625.

[^652]: DMA Reply Comments at 30. The DMA notes that the FCC has the
    requisite experience to evaluate technical feasibility and a more
    comprehensive view of the larger issues of how a caller ID
    requirement might fit into the regulation of the communications
    network as a whole. *See* DMA Reply Comments at 29.

[^653]: *See* WorldCom Reply Comments at 26 (arguing that requiring
    caller ID could create an expectation in the minds of consumers that
    they should always receive the information and that such a
    regulation creates a situation where companies will be unfairly
    accused of breaking the law, and as a consequence, face undue
    litigation and harm to their reputations).

[^654]: *See* Nextel Further Comments at 16 (stating that most
    telemarketers are currently capable of transmitting caller ID using
    their existing equipment, and that the FCC should adopt an approach
    similar to the FTC's, if it chooses to regulate the transmission of
    caller ID for telemarketing calls).

[^655]: Cynthia Stichnoth Comments; Stewart Abramson Comments at 1.

[^656]: *See, e.g.,* Sprint Comments at 7-8, CBA Comments at 8.

[^657]: The \*69 feature, available through many subscribers' telephone
    service providers, provides either: (1) information regarding the
    last incoming call, and the option to dial the caller back, or (2)
    the ability to return the last incoming call. Call information,
    however, would not be available for an incoming call, if the caller
    failed to transmit caller ID information or blocked such
    information.

[^658]: *See* *FTC Order,* 68 Fed. Reg. at 4623-24.

[^659]: "Charge number" is defined in 47 C.F.R. §64.1600(d) and refers
    to the delivery of the calling party's billing number by a local
    exchange carrier for billing or routing purposes, and to the
    subsequent delivery of such number to end users.

[^660]: *See* 47 C.F.R. §§ 64.1600, 64.1601.

[^661]: The term "ANI" refers to the delivery of the calling party's
    billing number by a local exchange carrier to any interconnecting
    carrier for billing or routing purposes, and to the subsequent
    delivery to end users. *See* 47 C.F.R. § 64.1600(b). ANI is
    generally inferred by the switch. Each line termination on the telco
    switch corresponds to a different phone number for ANI.

[^662]: Provision of Caller ID information does not obviate the
    requirement for a caller to verbally supply identification
    information during a call. *See* 47 C.F.R. § 64.1200(e)(iv).

[^663]: *See* *FTC Order,* 68 Fed. Reg. at 4623-28.

[^664]: This would mean 9:00 a.m. -- 5:00 p.m. Monday through Friday. A
    seller or telemarketer calling on behalf of a seller must be able to
    record do-not-call requests at the number transmitted to consumers
    as caller ID. Therefore, if the person answering the calls at this
    number is not the sales representative who made the call or an
    employee of the seller or telemarketer who made the call, or if the
    telemarketer is using an automated system to answer the calls, the
    seller is nevertheless responsible for ensuring that any do-not-call
    request is recorded and the consumer's name, if provided, and
    telephone number are placed on the seller's do-not-call list at the
    time the request is made. *See also* *supra* note 492*.*

[^665]: *See* *supra* para. 175.

[^666]: *See* Telcordia Notes on the Networks -- Notes Design and
    Configuration, Telcordia Technologies Special Report SR-2275, Issue
    4, October 2000, pp. 4-30. *See also*, *Administration of the North
    American Numbering Plan, Carrier Identification Codes (CICs)*, CC
    Docket No. 92-237, Second Report and Order, 12 FCC Rcd 8024 (1997).

[^667]: We note that a telemarketer using a service that prevents the
    transmission of the required caller ID information will be in
    violation of the Commission's caller ID rules.

[^668]: *See* WorldCom Reply Comments at 26.

[^669]: *See, e.g.,* Discover Comments at 7; DMA Reply Comments at 30.

[^670]: *See, e.g.,* TOPUC Comments at 3; Verizon Comments at 18; Owen
    O'Neill Comments at 1; Rob McNeal Comments; Jeff Mitchell Comments
    at 1.

[^671]: NASUCA Comments at 8-9; NCL Comments at 3.

[^672]: *See* 47 C.F.R. § 64.1601(b).

[^673]: *See* new rule at 47 C.F.R. § 64.1601(e). *See also* FTC Further
    Comments (explaining that the goals of regulatory consistency will
    be promoted if the FCC adopts caller ID requirements analogous to
    Amended TSR 16 C.F.R. § 310.4(a)(7)).

[^674]: *See* Notices of *Ex Parte Presentations* from WorldCom to FCC,
    filed May 23, 2003 and June 16, 2003 (advocating a 13-month
    implementation period for the caller ID rules). *See also* FTC
    Further Comments (explaining that the goals of regulatory
    consistency will be promoted if the FCC adopts caller ID
    requirements analogous to Amended TSR 16 C.F.R. § 310.4(a)(7)).

[^675]: 47 U.S.C. § 227(b)(1)(C). The United States Court of Appeals for
    the Eighth Circuit recently upheld the TCPA's provision on
    unsolicited faxes as satisfying the constitutional test for
    regulation of commercial speech. *See Missouri ex rel Nixon v.
    American Blast Fax, Inc.,* 323 F.3d 649 (8th Cir. 2003) *(petition
    for rehearing pending).*

[^676]: 47 C.F.R. § 64.1200(f)(5).

[^677]: Specifically, the TCPA provides that the facsimile include "in a
    margin at the top or bottom of each transmitted page of the message
    or on the first page of the transmission, the date and time it is
    sent and an identification of the business, other entity, or
    individual sending the message and the telephone number of the
    sending machine or of such business, other entity, or individual."
    47 U.S.C. § 227(d)(1)(B). The Commission determined that the sender
    of a facsimile message is the creator of the content of the message.
    *See 1997 Reconsideration Order*, 12 FCC Rcd at 4613, para. 6.

[^678]: *1992 TCPA Order*, 7 FCC Rcd at 8779, para. 54, n. 87.

[^679]: *1992 TCPA Order,* 7 FCC Rcd at 8779, para. 54, n. 87.

[^680]: *2002 Notice,* 17 FCC Rcd at 17482, para. 37

[^681]: *2002 Notice,* 17 FCC Rcd at 17482-83, para. 38. The Commission
    sought comment specifically on the Commission's determination that a
    prior business relationship between a fax sender and recipient
    establishes the requisite consent to receive telephone facsimile
    advertisement transmissions. *See 2002 Notice*, 17 FCC Rcd at 17483,
    para. 39.

[^682]: Chris Hernandez Comments; Damien Blevins Comments; Peter LeCody
    Comments; Joe Shields Comments at 6; Mathemaesthetics Comments at 2.

[^683]: Anthony Oppenheim Comments; W. Allen Wilkens, Jr. Comments.

[^684]: J. Greg Coontz Comments at 15-17.

[^685]: NCL Comments at 6.

[^686]: Dennis C. Brown Comments at 13; City of New Orleans Comments at
    11.

[^687]: Jim Carter Comments; JC Homola Comments; Autoflex Comments at
    1-2; Rob McNeal Comments (unsolicited faxes costs company tens of
    thousands of dollars each year in materials and employee time); *see
    also* NCL Comments at 6 ("\[P\]eople who work out of their homes are
    especially harmed by unsolicited faxes, which use up their paper and
    toner and tie up their machines."); Mathemaesthetics Reply Comments
    at 7 ("\[U\]nsolicited \[fax\] ads caused my business fax machine to
    become prematurely empty, which rendered *wholly useless* the
    equipment my small business crucially depends on for its revenue.
    When a customer of mine a short time later attempted to fax a
    purchase order for over \$3,000 worth of my company's product, my
    empty fax machine was not able to capture this transaction for a
    significant period of time..." (emphasis in original)).

[^688]: ABM Comments at 4 (Members have found that targeted fax
    communication is cost-effective way to seek renewal "request" forms
    from existing subscribers, and to communicate with subscribers about
    industry trade shows.).

[^689]: MPA Comments at 22; Nextel Comments at 25; NADA Comments at 2;
    Scholastic Comments at 13; Reed Comments at 2-3.

[^690]: NADA Comments at 2; NFIB Comments at 3.

[^691]: The term "signature" in the amended rule shall include an
    electronic or digital form of signature, to the extent that such
    form of signature is recognized as a valid signature under
    applicable federal law or state contract law. *See, e.g.,* Cendant
    Comments at 6.

[^692]: *2002 Notice*, 17 FCC Rcd at 17483, para. 39.

[^693]: ABM Comments at 9; DIRECTV Comments at 9-19; Hunton & Williams
    Comments at 5-6; Lorman Further Comments at 7 (noting that parties
    with an established business relationship expect to be in
    communications with companies with which they do business, and that
    any company that transmits ads by fax should be required to maintain
    a company-specific do-not-fax list).

[^694]: Nextel Reply Comments at 6.

[^695]: *See* Xpedite Reply Comments at 6; ABM Comments at 4-5; Nextel
    Comments at 25; DIRECTV Comments at 9-10; Lorman Further Comments at
    8.

[^696]: Biggerstaff Reply Comments at 22 (noting that express permission
    can easily be requested from existing customers, as paperwork is
    exchanged between merchants and their customers regularly); NAAG
    Comments at 31 (stating that treating express consent on a
    case-by-case basis can be costly and time-consuming, as consent is
    the main defense asserted by fax advertisers. NAAG suggests that the
    Commission adopt a concrete definition of "express," meaning
    definite, explicit or direct, and not left to inference).

[^697]: NAAG Comments at 31-32 (arguing that creating an established
    business relationship exception runs contrary to the clear wording
    of the statute. "The TCPA defines 'unsolicited advertisement' as an
    advertisement sent to a person 'without that person's prior express
    invitation or permission.' A business relationship exemption would
    rely on *implied* invitation or permission which is contrary to the
    clear wording of the statute." (emphasis in original; footnotes
    omitted)); Mark R. Lee Comments; Biggerstaff Comments at 3; John
    Holcomb Comments at 4; Kondos & Kondos Comments at 3-4; Marc A.
    Wites Comments; Wayne G. Strang Comments at 12; Michael C. Worsham
    Comments at 13; Wayne G. Strang Reply Comments at 16. *But see*
    NYSCPB Comments at 18 (recommends retaining the EBR as permission to
    receive faxes).

[^698]: *See* Kondos & Kondos Comments at 1-2 and Exhibit A (noting that
    three versions of the House predecessor bill to the TCPA included an
    EBR exemption for unsolicited fax ads. "Not only is an EBR not a
    defense to unsolicited fax advertising under the TCPA, the U.S.
    Congress specifically included such a defense in numerous
    predecessor TCPA bills and then excluded it in the law which
    overwhelmingly passed in 1991." Kondos & Kondos Comments at 2); John
    Holcomb Comments at 4; Biggerstaff Comments at 3.

[^699]: *See* *1992 TCPA Order*, 7 FCC Rcd at 8779, para. 54, n. 87
    (finding that facsimile transmissions from persons or entities that
    have an established business relationship with the recipient can be
    deemed to be invited or permitted by the recipient). *See also* 47
    C.F.R. 64.1200(f)(4) for the definition of an "established business
    relationship." We emphasize that, prior to the effectuation of rules
    contained herein, companies that transmitted facsimile
    advertisements to customers with whom they had established business
    relationships were in compliance with the Commission's existing
    rules.

[^700]: NCL Comments at 6; Michael J. Blitch Comments at 7; Autoflex
    Comments at 1-2.

[^701]: *See* 47 U.S.C. § 227(b)(1).

[^702]: 47 U.S.C. §§ 227(b)(1)(C) and (a)(4).

[^703]: *See, e.g.,* Blocklist.com Comments (operates a national
    do-not-fax list); Davide Di Labio Comments (should be a national fax
    list for those opposed to faxes); William B. Hayes Comments (no-fax
    lists are an alternative solution); Paul Aratow Comments (do-not-fax
    lists do not work); W. Allen Wilkins Comments (after responding to a
    "remove your fax number," receives more faxes).

[^704]: *See* 47 U.S.C. §§ 227(b)(1)(C) and (a)(4).

[^705]: A facsimile advertisement containing a telephone number and an
    instruction to call if the recipient no longer wishes to receive
    such faxes, would constitute a "negative option." This option (in
    which the sender presumes consent unless advised otherwise) would
    impose costs on facsimile recipients unless or until the recipient
    were able to ask that such transmissions be stopped.

[^706]: *1995 Reconsideration Order*, 10 FCC Rcd at 12408-09, para. 37.

[^707]: *1995 Reconsideration Order,* 10 FCC Rcd at 12408-09, para.
    37*.*

[^708]: *2002 Notice*, 17 FCC Rcd at 17482-83, para. 38.

[^709]: ABM Comments at 8; *see also* Brunswick Comments at 8-10;
    DIRECTV Comments at 11 (generally, publication of a fax number
    should constitute permission, but consumers should be able to
    control the circumstances under which they will receive faxes. For
    example, a trade association could note in its directory that faxes
    are not to be used for advertising purposes).

[^710]: *See, e.g.,* NCL Comments at 6; NAAG Comments at 31; TOPUC
    Comments at 6; John Holcomb Comments at 4.

[^711]: TOPUC Comments at 6; *see also* Mathemaesthetics Reply Comments
    at 7 (operators of a trade show ignored request not to use fax
    number for advertising and began transmitting multi-page fax ads for
    services my business has no interest in). *But see* NADA Comments at
    3 (in deciding to become a member of a trade association, the member
    voluntarily seeks the benefit of the association's services).

[^712]: *1995 Reconsideration Order*, 10 FCC Rcd at 12408-09, para. 37;
    *see also* Hunton & Williams Comments at 7 (recommends at opt-out
    mechanism for unsolicited faxes).

[^713]: *2002 Notice*, 17 FCC Rcd at 17483-84, para. 40.

[^714]: *2002 Notice* , 17 FCC Rcd at 17483-84, para. 40.

[^715]: AIADA Comments at 2; Nextel Comments at 40.

[^716]: AIADA Comments at 2.

[^717]: Nextel Comments at 38; *see also* NAAG Comments at 32 (stating
    that fax broadcasters that maintain their own databases of fax
    numbers are the subject of the vast majority of consumer complaints
    and state enforcement actions, and that fax broadcasters who
    determine the content of the advertisement or its destination should
    be held liable for unsolicited faxes).

[^718]: Nextel Comments at 25, 38-40; *see also* DIRECTV Comments at 3,
    9 (asking whether DIRECTV or its independent contractors have the
    established business relationship with a consumer).

[^719]: Xpedite Comments at 5-7; Globecomm Comments at 4-5; ADVAL Reply
    Comments at 3 (fax broadcasters never see the list of recipients or
    the faxed document, which is often uploaded directly through the
    Internet); Xpedite Reply Comments at 3, 8.

[^720]: ADVAL Reply Comments at 3; Xpedite Reply Comments at 3.

[^721]: Xpedite Comments at 3-4; NAAG Comments at 32-33; NCL Comments at
    6; ADVAL Comments at 3 ("Fax carriers should not be penalized for
    traffic sent by third parties.").

[^722]: Reed Comments at 6.

[^723]: *1992 TCPA Order*, 7 FCC Rcd at 8780, para. 54 (quoting *Use of
    Common Carriers*, 2 FCC Rcd 2819, 2820 (1987)).

[^724]: A high degree of involvement might be demonstrated by a fax
    broadcaster's role in reviewing and assessing the content of a
    facsimile message.

[^725]: *See* 47 C.F.R. § 64.1200(f)(4).

[^726]: Cox Comments at 12-19.

[^727]: Cox Comments at 13.

[^728]: *1992 TCPA Order*, 7 FCC Rcd at 8780, para. 54 (quoting *Use of
    Common Carriers*, 2 FCC Rcd 2819, 2820 (1987)).

[^729]: Nextel Comments at 40-41.

[^730]: 47 U.S.C. § 217.

[^731]: 47 U.S.C. § 227(b)(1)(C).

[^732]: 47 U.S.C. § 227(a)(2); this definition was incorporated in §
    64.1200(f)(2) of the Commission's rules.

[^733]: *2002 Notice*, 17 FCC Rcd at 17482, para. 37.

[^734]: *See* Nextel Comments at 31-32.

[^735]: Nextel Reply Comments at 4-5.

[^736]: Michael C. Worsham Comments at 20; James Suggs Comments at 1.
    Commenters also note that some commercial facsimile services
    transmit faxes to the recipients as email attachments. We emphasize
    that any rules the Commission adopts with respect to unsolicited
    facsimile advertisements would not extend to facsimile messages
    transmitted as email over the Internet. *See* definition of
    telephone facsimile machine at 47 U.S.C. § 227(a)(2).

[^737]: Autoflex Comments at 2; J. Greg Coontz Reply Comments at 11-15,
    16-17.

[^738]: *See* Kauffman Comments at 3. Although fax boards alone do not
    have the capability to transcribe text onto or from paper, the
    Commission nevertheless determined that fax modem boards, which
    enable personal computers to transmit messages to or receive
    messages from conventional facsimile machines or other computer fax
    boards, are the functional equivalent of telephone facsimile
    machines. *See 1995 Reconsideration Order*, 10 FCC Rcd at 12404-06,
    paras. 28-30.

[^739]: H.R. R[ep]{.smallcaps}. N[o]{.smallcaps}. 102-317 at 10 (1991).

[^740]: H.R. R[ep]{.smallcaps}. N[o]{.smallcaps}. 102-317 at 25 (1991).

[^741]: *See Covington & Burling v. International Marketing & Research,
    Inc. et al.,* No. 01-0004360 (D.C. Sup. Ct. (April 16, 2003)
    (finding a fax broadcaster liable under the TCPA for transmitting
    unsolicited fax advertisements to a law firm's fax server).

[^742]: 47 U.S.C. § 227(d)(1)(B); 47 C.F.R. § 68.318(d).

[^743]: *2002 Notice*, 17 FCC Rcd at 17483-84, paras. 37 and 40.

[^744]: *1997 Reconsideration Order*, 12 FCC Rcd at 4612-13, para. 6.

[^745]: *See* NAAG Comments at 32-33 (stating that only requiring the
    advertiser's identify has been a hindrance in enforcing the TCPA. It
    has been the states' experience that fax broadcasters, who maintain
    their own databases and send others' advertisements to these fax
    numbers, frequently omit their identifying information as the sender
    in order to avoid detection and enforcement action.).

[^746]: *See* amended rule at 47 C.F.R. § 68.318(d).

[^747]: *See supra* discussion, paras. 194-195.

[^748]: Michael C. Worsham Comments at 11-12; NCL Comments at 6; Michael
    J. Blitch Comments at 7 (both seller and fax broadcaster should be
    identified); NAAG at 33 (should require identifying information of
    fax broadcaster). *But see* Xpedite Reply Comments at 8 (requiring a
    fax broadcaster's identifying information could confuse consumers as
    to who created the message. Uninvolved fax broadcasters should not
    be required to identify themselves on faxes.).

[^749]: *See supra* discussion on identification requirements for
    telemarketers, para. 144.

[^750]: 47 U.S.C. § 227(b)(3).

[^751]: 47 U.S.C. § 227(c)(5).

[^752]: *2002 Notice*, 17 FCC Rcd at 17486-87, para. 47.

[^753]: Mastercard Comments at 7; BMO Financial Comments at 4; Bank of
    America Comments at 6; DialAmerica Comments at 14; AT&T Wireless
    Reply Comments at 27-28.

[^754]: Martin C. Kaplan Comments at 2 (acknowledging that "\[u\]p to
    one call per year is permitted . . . should be amended to total
    prohibition"); April Jordon Comments at 2; Wayne G. Strang Reply
    Comments at 16; NCL Comments at 7.

[^755]: NYSCPB Comments at 19; Michael C. Worsham Comments at 15
    (Commission should clarify that once threshold of two calls received
    within one year is met all violations in any calls are actionable).

[^756]: *See* DIRECTV Comments at 3-4; Nextel Comments at 39.

[^757]: *See, e.g.*, AIA Comments at 2; AIADA Comments at 2; Kauffman
    Comments at 8; DIRECTV Reply Comments at 7; ABM Comments at 2.

[^758]: *See* Hershovitz Reply Comments at 1, 8-9; Wayne G. Strang Reply
    Comments at 4; *see also* City of New Orleans Comments at 11; Joe
    Shields Reply Comments at 9.

[^759]: 47 U.S.C. § 227(c)(5).

[^760]: *2002 Notice*, 17 FCC Rcd at 17486-87, para. 47. *See generally
    Establishment of Rules Governing Procedures to Be Followed When
    Informal Complaints Are Filed by Consumers Against Entities
    Regulated by the Commission; Amendment of Subpart E of Chapter 1 of
    the Commission's Rules Governing Procedures to Be Followed When
    Informal Complaints Are Filed Against Common Carriers; 2000 Biennial
    Review*, Memorandum Opinion and Order and Notice of Proposed
    Rulemaking, CI Docket No. 02-32, CC Docket Nos. 94-93, 00-175, 17
    FCC Rcd 3919 (2002).

[^761]: 47 C.F.R. § 64.1200(e)(1).

[^762]: *2002 Notice*, 17 FCC Rcd at 17481-82, para. 36.

[^763]: *See, e.g.,* ATA Comments at 105; BMO Financial Comments at 5;
    HFS Comments at 9; Technion Comments at 7; AT&T Wireless Comments at
    28.

[^764]: Teleperformance Comments at 2; ATA Comments at 106.

[^765]: *See, e.g.,* Melva L. Taylor Comments at 1; Michael C. Worsham
    Comments at 11; Robert Jaglowski Comments; Linda M. Deakl Comments;
    Richard M. Bryant Comments.

[^766]: J. Melville Capps Comments; Mandy Burkart Comments; Jeff Bryson
    Comments; John Shaw Comments at 7 (due to the number of nighttime
    workers, time of day restrictions should begin at 9 am).

[^767]: PUC of Ohio Comments at 22-23; James Wood Comments.

[^768]: EPIC Comments at 13.

[^769]: *See* 16 C.F.R. § 310.4(c); *see also* FTC Further Comments at
    47-50 (stating that the FCC should retain its existing calling time
    restrictions and maintain the consistency that both agencies have
    sought on this issue).

[^770]: The Commission encourages any seller or telemarketer to comply
    with consumers' requests not to be called during certain times of
    the day.

[^771]: *See*
    \<[[http://www.fcc.gov/eb/News_Releases/DOC-230145A1.html]{.underline}](http://www.fcc.gov/eb/News_Releases/DOC-230145A1.html)\>.

[^772]: There are other overlapping regulations such as provisions
    governing abandoned calls, transmission of caller ID, and
    time-of-day restrictions. *See supra* paras. 146-159, 173-184,
    208-210.

[^773]: 47 U.S.C. § 152(b). *See supra* paras. 9 and 16.

[^774]: *See* 47 U.S.C. § 227(f)(3), (7).

[^775]: Review of the FTC do-not-call database will be particularly
    important so that our enforcement staff can easily determine the
    date of any do-not-call request and the date that a company last
    downloaded information from the database.

[^776]: In the course of its investigations, the Enforcement Bureau will
    follow up with individual complainants as appropriate. In light of
    the state court private right of action under the TCPA and the fact
    that many TCPA complaints are not against common carriers,
    consistent with existing practice, the staff will not necessarily
    contact each individual TCPA complainant. Compare 47 U.S.C. § 208.

[^777]: Before initiating a forfeiture proceeding against most entities
    that do not hold an FCC authorization, the violator must have
    received a Commission citation and then engaged in an additional
    violation. 47 U.S.C. § 503(b)(5).

[^778]: *See 2002 Notice*, 17 FCC Rcd at 17466, para. 8.

[^779]: *See, e.g.,* ATA Comments at 41-43 (stating that "\[a\]s a
    general matter, access to the \[complaints\] is necessary to ensure
    that 'interested parties have a meaningful opportunity to
    participate . . . and that the Court has an adequate record from
    which to determine whether the agency properly performed its
    functions.'"); MBNA Comments at 10 (requesting "an opportunity to
    review the complaints to determine the nature of the specific
    practices complained of, and the extent to which such practices
    reasonably require new TCPA rules . . .").

[^780]: *See, e.g.,* ABM Comments at 7; SBC Comments at 7-8, 17;
    BellSouth Comments at 4.

[^781]: The ATA's FOIA request was for copies of the over 11,000
    complaints about telemarketing practices received during the period
    January 2000 through December 2001. The request also asked for
    copies of all similar complaints about telemarketing practices the
    FCC has received since January 1, 2002; copies of the over 1,500
    inquiries about predictive dialing received from June 2000 to
    December 2001; and any non-publicly released FCC responses to the
    above-referenced complaints. *See Motion For Extension of Time*
    filed by the ATA, CG Docket No. 02-278, Tab 1, Electronic FOIA
    Request from Ronnie London. On November 14, 2002, following a
    meeting with the ATA regarding its FOIA request, CGB confirmed in a
    letter to ATA counsel that it would take a number of months and
    considerable staff resources in order to provide the over 11,000
    documents covered by the request. *See* Letter from K. Dane Snowden,
    FCC, to Ronnie London, Counsel to ATA, November 14, 2002.

[^782]: *See* 5 U.S.C. § 552.

[^783]: 5 U.S.C. § 552(b)(6); *see also* 47 C.F.R. §§ 0.441 *et seq.*

[^784]: 5 U.S.C. § 552(a); 47 C.F.R. §§ 0.551 *et seq.*

[^785]: We explained that informal complaints often contain personally
    identifiable information such as addresses, phone numbers, social
    security numbers, and personal financial information. The ATA
    subsequently filed an *Application for Review of the Freedom of
    Information Action*, requesting that the Commission "overturn the
    staff's classification of the telemarketing complaints and
    predictive dialing inquiries as 'not routinely available' documents"
    and immediately release them for public consideration. *See Review
    of Freedom of Information Action* filed by the ATA at 5, CG Docket
    No. 02-278, December 6, 2002. (In the alternative, ATA requested
    that "the Commission require the staff to significantly accelerate
    its release of the redacted documents in time for consideration of
    them in the notice and comment period, and to substantially reduce
    or waive the charge associated with producing the requested
    documents.") On December 23, 2002, the ATA filed a *Motion for
    Expedited Review of its Application for Review of the Freedom of
    Information Act Action* to "ensure that ATA and other parties
    participating in the . . . proceeding are afforded timely access to
    critical documents central to the issues raised. . .by the \[*2002
    Notice*\]." *See Motion for Expedited Review* at 1.

[^786]: As directed by the ATA, the Commission stopped processing the
    FOIA on January 27, 2003. The comment period in this proceeding was
    subsequently extended following the release of a Further Notice, and
    the ATA wrote to the Commission asking that the FOIA processing
    continue. However, the ATA did not represent that it would pay the
    additional FOIA fees that would accrue from the processing, and CGB
    wrote to the ATA for further directions. The ATA then paid for
    complaint records provided through January 27, 2003, and asked the
    Commission to continue processing the request. CGB has provided the
    ATA with a total of 2,420 redacted complaints thus far.

[^787]: *See, e.g.,* ATA Comments at 36 (noting that "the Commission's
    tally of complaints, inquiries and website visits fails to
    demonstrate a significant problem . . . the existence of a complaint
    does not amount to a violation of the rules.")

[^788]: Other considerations included: the Commission's own enforcement
    experience; the amount of time that had passed since the Commission
    undertook a broad review of the TCPA rules, during which time
    telemarketing practices have changed significantly; and the actions
    by the FTC to consider changes to its telemarketing rules, including
    the establishment of a national do-not-call registry. *See 2002
    Notice*, 17 FCC Rcd at 17464-68, para. 7-11.

[^789]: *See, e.g.,* ATA Comments at 41.

[^790]: *2002 Notice*, 17 FCC Rcd at 17461, para. 1.

[^791]: *See* Do-Not-Call Act, Sec. 4.

[^792]: *See* 5 U.S.C. § 604.

[^793]: *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).

[^794]: *Rules and Regulations Implementing the Telephone Consumer
    Protection Act of 1991*, Notice of Proposed Rulemaking (NPRM) and
    Memorandum Opinion and Order (MO&O), 17 FCC Rcd 17459, CG Docket No.
    02-278 and CC Docket No. 92-90. In the MO&O, the Commission closed
    and terminated CC Docket No. 92-90 and opened a new docket to
    address the issues raised in this proceeding.

[^795]: Do-Not-Call Implementation Act, Pub. L. No. 108-10, 117 Stat.
    557 (2003), *to be codified at* 15 U.S.C. § 1601.

[^796]: *Rules and Regulations Implementing the Telephone Consumer
    Protection Act of 1991*, CG Docket No. 02-278, Further Notice of
    Proposed Rulemaking, 68 Fed. Reg. 16250 (March 25, 2003).

[^797]: *See* 5 U.S.C. § 604.

[^798]: Telephone Consumer Protection Act of 1991, Pub. L. No. 102-243,
    105 Stat. 2394 (1991), *codified at* 47 U.S.C. § 227. The TCPA
    amended Title II of the Communications Act of 1934, 47 U.S.C. §§ 201
    *et seq*.

[^799]: *See Telemarketing Sales Rule*, 68 Fed. Reg. 4580 (Jan. 29,
    2003*)*.

[^800]: *See TCPA*, Section 2(9), *reprinted in* 7 FCC Rcd 2736 at 2744.

[^801]: *2002 Notice*, 17 FCC Rcd at 17497-501, paras. 70-80.

[^802]: *See* Do-Not-Call Act, Sec. 4(b).

[^803]: WorldCom Reply Comments at 2.

[^804]: NEMA Comments at 8; PLP Comments at 1.

[^805]: *See e.g.*, Yellow Pages Comments at 2.

[^806]: NADA Comments at 2-3.

[^807]: John Shaw Reply Comments at 10; Mathemaesthetics Comments at 6;
    Gail Berk Comments.

[^808]: John Holcomb Comments at 1; Jim Carter Comments.

[^809]: Order, paras. 21, 88.

[^810]: *See e.g.,* MBNA Comments at 4.

[^811]: *See e.g.,* Privacy Rights at 2.

[^812]: NFIB Comments at 1. *See also*, PLP Comments at 4; NEMA Comments
    at 8.

[^813]: MBNA Comments at 3; MBNA Reply at 7.

[^814]: MBNA Comments at 3.

[^815]: SBSC Comments at 2-3. *See also*, PLP Comments at 4-5; MBA Reply
    at 5-6; Farmers Comments at 1.

[^816]: NAIFA Comments at 3-4. *See also*, DSA Comments at 6-7 and
    Vector Comments at 8-10.

[^817]: NAMB Comments at 2; NRF Comments at 9-10.

[^818]: MBA Comments at 3.

[^819]: DSA Comments at 4-5. *See also*, NAA Comments at 10-11.

[^820]: MBA Comments at 3. *See also*, MPA Comments at 10-11 ("small
    businesses will be daunted by or unable to afford the computer
    processing time and expense involved in 'scrubbing' their relatively
    small marketing lists against a \[national list\]"); *see also* NRF
    Comments at 9.

[^821]: Strang Reply Comments at 12. *See also* Joe W. McDaniel-First
    Dec 4, 2002 Comments.

[^822]: Yellow Pages Comments at 2-4.

[^823]: Mathemaesthetics Comments at 6.

[^824]: Mathemaesthetics Comments at 6.

[^825]: David T. Piekarski Comments (Docket No. 03-62) at 1-2.

[^826]: NCS Comments at 4-5. *See also*, Mathemaesthetics Comments at
    7-8.

[^827]: NCS Comments at 5.

[^828]: *2002 Notice*, 17 FCC Rcd at 17470-71, para. 17.

[^829]: *2002 Notice*, 17 FCC Rcd at 17470-71, para. 17.

[^830]: MBA Comments at 6.

[^831]: MBA Comments at 6-7.

[^832]: MBA Comments at 6-7.

[^833]: NFIB Comments at 2.

[^834]: NFIB Comments at 2.

[^835]: NFIB Comments at 2.

[^836]: NADA Comments at 2.

[^837]: NADA Comments at 2.

[^838]: NADA Comments at 2.

[^839]: *See,* *e.g.*, NASUCA Comments at 17-18; DMA Comments at 20-21;
    Nextel Reply Comments at 11-13.

[^840]: DMA Comments at 20.

[^841]: DMA Comments at 20.

[^842]: Nextel Reply Comments 12-13.

[^843]: Privacy Rights Comments at 4-5.

[^844]: Privacy Rights Comments at 4-5.

[^845]: NFIB Comments at 3-4. *See also*, NADA Comments at 2-3.

[^846]: NFIB Comments at 3-4.

[^847]: NFIB Comments at 3-4. *But see,* Mathemaesthetics Comments at
    2-5.

[^848]: NADA Comments at 2.

[^849]: NADA Comments at 2.

[^850]: Mathemaesthetics Comments at 2.

[^851]: Jeff Bryson Comments; Carolyn Capps Comments at 2.

[^852]: Michael C. Addison Comments.

[^853]: John Holcomb Comments at 1.

[^854]: Jim Carter Comments; JC Homola Comments; Autoflex Comments at
    1-2; Rob McNeal Comments (unsolicited faxes costs company tens of
    thousands of dollars each year in materials and employee time); *see
    also* NCL Comments at 6 ("\[P\]eople who work out of their homes are
    especially harmed by unsolicited faxes, which use up their paper and
    toner and tie up their machines."); Mathemaesthetics Reply Comments
    at 7 ("\[U\]nsolicited \[fax\] ads caused my business fax machine to
    become prematurely empty, which rendered *wholly useless* the
    equipment my small business crucially depends on for its revenue.
    When a customer of mine a short time later attempted to fax a
    purchase order for over \$3,000 worth of my company's product, my
    empty fax machine was not able to capture this transaction for a
    significant period of time ... ." (emphasis in original)).

[^855]: NFIB Comments at 2 (emphasis added).

[^856]: NYSCPB-Other Than National DNC List Comments at 9-10.

[^857]: NYSCPB-Other Than National DNC List Comments at 9.

[^858]: NYSCPB-Other Than National DNC List Comments at 10.

[^859]: 5 U.S.C. § 604(a)(3).

[^860]: 5 U.S.C. § 601(6).

[^861]: 5 U.S.C. § 601(3) (incorporating by reference the definition of
    "small-business concern" in the Small Business Act, 15 U.S.C. §
    632). Pursuant to 5 U.S.C. § 601(3), 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 comments, 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."

[^862]: 15 U.S.C. § 632.

[^863]: 47 C.F.R. § 64.1200.

[^864]: *See* SBA, Programs and Services, SBA Pamphlet No. CO-0028, at
    page 40 (July 2002).

[^865]: 1992 Economic Census, U.S. Bureau of the Census, Table 6
    (special tabulation of data under contract to Office of Advocacy of
    the U.S. Small Business Administration).

[^866]: *See* 13 C.F.R. § 121.201, NAICS code 561422.

[^867]: U.S. Census Bureau, 1997 Economic Census, Subject Series:
    "Administrative and Support and Waste Management and Remediation
    Services, Receipts Size of Firms Subject to Federal Income Tax:
    1997," Table 4, NAICS code 561422 (issued Oct. 2000).

[^868]: Order, paras 16-85.

[^869]: Order, paras. 129-134, 146-159.

[^870]: Order, paras. 173-184.

[^871]: Order, paras. 185-203.

[^872]: 5 U.S.C. § 603(c)(1)-(c)(4).

[^873]: Order, paras. 25-41.

[^874]: *See e.g.*, MBNA Comments at 4.

[^875]: *See e.g.*, Privacy Rights Comments at 2.

[^876]: Order, paras. 46-49, 54.

[^877]: *See e.g.*, Mathemaesthetics Comments at 6.

[^878]: Order, para. 54.

[^879]: *See e.g.*, MBA Reply at 3; NAA Comments at 3; SBSC Comments at
    2; PLP Comments at 5.

[^880]: NCS Comments at 4-5.

[^881]: *See e.g.*, NAA Comments at 12-14 (exempt newspapers); NAIFA
    Comments at 3 (exempt referral calls); SBSC Comments at 2 (exempt
    local calls); MBA Comments at 5 (exempt calls to set up face-to-face
    meetings).

[^882]: Order, paras. 46-54.

[^883]: Order, para. 94.

[^884]: Order, para. 94.

[^885]: Order, para. 92.

[^886]: Order, para. 113.

[^887]: *See FTC Order*, 68 Fed. Reg. 4580 at 4591-94.

[^888]: *See,* *e.g.*, Bank of America Comments at 4 (36 months); MPA
    Comments at 12-13 (24 months); Sprint Comments at 18 (12 months).

[^889]: *2002 Notice*, 17 FCC Rcd at 17475-76, para. 26.

[^890]: Mathemaesthetics Comments at 6.

[^891]: WorldCom Reply at 18-19.

[^892]: Order, paras. 150-152.

[^893]: *See, e.g.,* WorldCom Further Comments at 8; Teleperformance
    Further Comments at 4.

[^894]: NFIB Comments at 3-4.

[^895]: John Holcomb Comments at 1; Mathemaesthetics Comments at 2-3.

[^896]: Order, para. 189.

[^897]: Order, para. 191.

[^898]: Order, para. 93.

[^899]: MBA Comments at 6-7.

[^900]: *See* 5 U.S.C. § 801(a)(1)(A).

[^901]: *See* 5 U.S.C. § 604(b).