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 Federal  Communications  Commission  DA  03-  3016 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 


 In  the  Matter  of 
 Rules  and  Regulations  Implementing  the  Telephone  Consumer  Protection  Act  of  1991 


 Worldcom,  Inc.  d/  b/  a  MCI 
 Petition  for  Temporary,  Limited  Waiver 


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 CG  Docket  No.  02-  278 


 ORDER 
 Adopted:  September  30,  2003  Released:  October  1,  2003 
 By  the  Chief,  Consumer  &  Governmental  Affairs  Bureau: 


 I.  INTRODUCTION 
 1.  On  June  26,  2003,  the  Federal  Communications  Commission  (Commission)  adopted  rules  prohibiting  telemarketers  from  abandoning  more  than  three  percent  of  calls  answered  by  a 


 live  person  and  requiring  telemarketers  to  deliver  a  prerecorded  identification  message  when  abandoning  any  call.  1  In  this  Order,  we  grant  Worldcom,  Inc.  d/  b/  a  MCI  (MCI)  a  60-  day  waiver 
 until  December  1,  2003  of  the  prerecorded  identification  message  requirement  in  47  C.  F.  R.    64.1200(  a)(  6).  2  We  grant  this  limited  waiver  to  afford  MCI  an  additional  60  days  within  which  to 
 satisfy  their  obligations  under  the  Commissions  call  abandonment  rules. 
 2.  In  the  Report  and  Order,  the  Commission  found  that  various  technologies  are  widely  used  by  telemarketers  to  contact  greater  numbers  of  consumers  more  efficiently.  3  The 


 Commission  also  noted  that  the  use  of  one  such  technology  predictive  dialing  software  may  result  in  a  significant  number  of  abandoned  calls.  To  minimize  the  harm  that  results  from  the  use 
 of  predictive  dialers,  the  Commission  adopted  a  rule  requiring  telemarketers  to  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.  4  Section  64.1200(  a)(  6)  provides  that  a  call 


 1  Rules  and  Regulations  Implementing  the  Telephone  Consumer  Protection  Act  of  1991,  Report  and  Order,  18  FCC 
 Rcd  14014  (2003)  (Report  and  Order).  2 
 See  Petition  for  Temporary,  Limited  Waiver  of  Section  64.  1200(  a)(  6)  of  the  Commissions  Rules,  filed  by  MCI,  August  27,  2003  (Waiver  Request). 


 3  Report  and  Order,  18  FCC  Rcd  at  14101,  para.  146. 
 4  See  47  C.  F.  R.    64.  1200(  a)(  6). 
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 will  be  considered  abandoned  if  it  is  not  transferred  to  a  live  sales  agent  within  two  (2)  seconds  of  the  recipients  completed  greeting.  The  Commissions  rules  further  require  that  when  a  call  is 
 abandoned  within  the  three  (3)  percent  maximum  allowed,  a  telemarketer  must  deliver  a  prerecorded  identification  message  containing  only  the  telemarketers  name,  telephone  number, 
 and  notification  that  the  call  is  for  telemarketing  purposes.  5  Finally,  section  64.1200(  a)(  6)  requires  a  telemarketer  to  maintain  records  demonstrating  compliance  with  the  three  percent  call 
 abandonment  rate.  The  call  abandonment  rules  are  scheduled  to  become  effective  on  October  1,  2003.  6 


 3.  On  August  27,  2003,  MCI  filed  a  petition  seeking  a  60-  day  waiver  of  the  requirement  that  it  comply  with  section  64.1200(  a)(  6).  In  the  alternative,  MCI  requests  that  the  Commission 
 waive  only  the  prerecorded  identification  message  requirement  of  Section  64.1200(  a)(  6).  7  On  September  4,  2003,  the  Consumer  &  Governmental  Affairs  Bureau  released  a  Public  Notice 
 seeking  comment  on  MCIs  petition.  8  The  Commission  received  comments  from  AT&  T  Corp.  (AT&  T)  and  Dennis  C.  Brown  (Brown)  regarding  MCIs  waiver  request.  9  AT&  T  disputes  MCIs 
 contention  that  it  lacked  adequate  notice  of  the  Commissions  call  abandonment  rules  and  contends  that  MCIs  petition  fails  to  show  that  compliance  by  the  October  1  deadline  imposes  any 
 unique  or  extraordinary  burdens  on  MCI.  10  Brown  contends  that  MCI  was  on  notice  of  the  Commissions  rules  since  the  release  of  the  Commissions  Notice  of  Proposed  Rulemaking  in 
 September  of  2002,  and  that  there  are  reasonable  alternatives  to  a  waiver  for  MCI.  11 
 4.  Because  we  conclude  that,  under  the  circumstances  presented,  it  is  in  the  public  interest  to  do  so,  we  grant  MCI  a  60-  day  limited  waiver  of  the  requirement  to  deliver  a 


 prerecorded  identification  message  when  abandoning  a  call.  MCI  will  still  be  required  to  comply  with  the  three  (3)  percent  maximum  rate  on  abandoned  calls  as  of  the  rules  scheduled  effective 
 date  of  October  1,  2003. 
 II.  DISCUSSION 
 5.  Generally,  the  Commissions  rules  may  be  waived  for  good  cause  shown.  12  As  noted  by  the  Court  of  Appeals  for  the  D.  C.  Circuit,  however,  agency  rules  are  presumed  valid.  13  The 


 Commission  may  exercise  its  discretion  to  waive  a  rule  where  the  particular  facts  make  strict 


 5  Id. 
 6  See  Report  and  Order,  18  FCC  Rcd  at  14110,  para.  159. 
 7  Waiver  Request  at  6. 
 8  Public  Notice,  Consumer  &  Governmental  Affairs  Bureau  Seeks  Comment  on  MCI  Petition  for  Temporary, 
 Limited  Waiver  of  the  Commissions  Call  Abandonment  Rules,  DA  03-  2832  (rel.  September  4,  2003).  9 
 See  AT&  T  Comments,  filed  September  11,  2003;  Comments  and  Opposition  to  Petition  for  Temporary  Limited  Waiver  of  Section  64.  1200(  a)(  6)  of  the  Commissions  Rules,  filed  by  Dennis  C.  Brown,  September  5,  2003;  see  also 


 MCI  Reply  Comments,  filed  September  18,  2003.  10 
 See  AT&  T  Comments  at  4.  11 
 See  Dennis  C.  Brown  Comments  at  4.  12 
 47  C.  F.  R.    1.3.  13 
 WAIT  Radio  v.  FCC,  418  F.  2d  1153,  1157  (D.  C.  Cir.  1969),  cert.  denied,  409  U.  S.  1027  (1972). 
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 compliance  inconsistent  with  the  public  interest.  14  The  Commission  may  take  into  account  considerations  of  hardship,  equity,  or  more  effective  implementation  of  overall  policy  on  an 
 individual  basis.  15 
 6.  We  find  that  MCI  has  demonstrated  that  good  cause  exists  to  justify  a  temporary,  limited  waiver  until  December  1,  2003,  of  the  Commissions  prerecorded  identification  message 


 requirement  in  section  64.1200(  a)(  6).  Although  the  Federal  Trade  Commission  (FTC)  adopted  similar  requirements  regarding  abandoned  calls  in  December  2002,  the  FTCs  rules  apply  only  to 
 companies  over  which  it  has  jurisdiction.  16  The  FTC  granted  an  extension  of  the  effective  date  of  its  call  abandonment  rules  until  October  1,  2003,  after  determining  that  it  would  take  additional 
 time  for  companies  to  acquire  or  develop  new  software  and  hardware  to  comply  with  its  rules.  17  Thus,  most  companies  have  had  nine  months  to  make  the  necessary  modifications  to  comply  with 
 the  FTCs  rules.  As  a  common  carrier  that  uses  internal  call  centers  for  its  telemarketing,  however,  MCI  is  not  subject  to  the  FTCs  jurisdiction  and  is  therefore  not  required  to  comply  with 
 its  rules.  18  Consequently,  although  we  recognize  that  MCI  was  aware  that  it  could  be  subject  to  a  similar  requirement,  19  it  could  not  be  certain  of  the  contours  of  the  rules  that  would  apply  to  it 
 until  the  Commissions  decision. 
 7.  In  addition,  it  appears  that  compliance  with  the  call  abandonment  rule  by  October  1,  2003  presents  a  complex  problem  for  MCI  because  of  the  requirement  that  MCI  both  track  the 


 call  abandonment  rate  and  deliver  a  prerecorded  identification  message  if  the  called  person  is  not  connected  with  a  live  sales  representative  within  two  seconds.  20  According  to  MCI,  the  current 
 method  used  by  MCI  to  track  abandoned  calls  based  on  the  termination  call  progression  event  cannot  be  used  to  comply  with  the  Commissions  new  rule  because  of  the  additional 
 requirement  that  MCI  deliver  a  prerecorded  message.  21 
 8.  We  find  that  MCI  has  demonstrated  that  a  temporary,  limited  waiver  of  the  prerecorded  identification  message  requirement  is  in  the  public  interest.  According  to  MCIs 


 Waiver  Request,  MCI  is  in  the  process  of  modifying  its  equipment  to  comply  with  the  Commissions  new  rules,  but  will  likely  not  be  able  to  comply  with  the  call  abandonment  rule 
 by  October  1.  22  MCI  explains  that  it  has  taken  steps  to  design  and  put  in  place  new  software  and 


 14  Northeast  Cellular  Telephone  Co.  v.  FCC,  897  F.  2d  1164,  1166  (D.  C.  Cir.  1990). 
 15  WAIT  Radio,  418  F.  2d  at  1157. 
 16  See  Telemarketing  Sales  Rule,  68  Fed.  Reg.  4580,  4587  (Jan.  29,  2003). 
 17  See  Telemarketing  Sales  Rule,  Federal  Trade  Commission,  Stay  of  Compliance  Date,  68  Fed.  Reg.  16414,  16414- 
 15  (April  4,  2003).  18 
 The  FTC  lacks  jurisdiction  over  certain  entities,  including  common  carriers,  banks,  insurance  companies,  and  airlines.  The  FTC  indicated,  however,  that  its  amended  rules  will  apply  to  third  party  telemarketers  hired  by  such 


 entities  to  call  on  their  behalf.  19 
 See  Rules  and  Regulations  Implementing  the  Telephone  Consumer  Protection  Act  of  1991,  Notice  of  Proposed  Rulemaking  and  Memorandum  Opinion  and  Order,  17  FCC  Rcd  17459,  CG  Docket  No.  02-  278  and  CC  Docket  No. 


 92-  90  (2002).  20 
 See  Waiver  Request  at  3.  21 
 See  Waiver  Request  at  3-  4.  22 
 See  Waiver  Request  at  6. 
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 hardware  that  will  allow  it  to  calculate  the  percentage  of  abandoned  calls  based  on  indicia  other  than  the  termination  call  progression  event  that  occurs  after  disconnection,  and  to  purchase  new 
 equipment  to  deliver  the  prerecorded  message.  23  Such  software  is  still  in  the  design  stage,  and  the  new  hardware  is  currently  being  sized  to  accommodate  the  necessary  data  storage  and  message 
 presentation.  24  MCI  states,  however,  that  it  could  comply  with  the  three  percent  call  abandonment  rate  by  using  its  temporary,  manual,  data  collection  system,  provided  that  MCI  were 
 relieved  of  the  obligation  to  leave  a  prerecorded  message.  25  Therefore,  we  find  that  a  temporary,  limited  waiver  is  reasonable  to  provide  MCI  with  additional  time  to  complete  the  steps  necessary 
 to  comply  with  section  64.1200(  a)(  6). 
 9.  In  addition,  a  60-  day  waiver  of  only  the  prerecorded  message  requirement  of  section  64.1200(  a)(  6)  should  result  in  minimal  harm  to  consumers.  The  waiver  may  result  in  some 


 consumers  not  receiving  the  prerecorded  identification  message  from  MCI  for  an  additional  60  days.  Consumers  should  nevertheless  experience  a  reduction  in  the  number  of  abandoned  calls, 
 as  MCI  has  indicated  that  it  can  comply  with  the  Commissions  three  percent  call  abandonment  rate  by  October  1,  2003,  if  it  uses  its  temporary,  manual  data  collection  system.  26  We  expect  that 
 MCI  will  use  its  best  efforts  to  comply  also  with  the  prerecorded  identification  message  requirement  by  October  1,  or  as  soon  as  possible  within  the  60-  day  waiver  period.  27 


 10.  For  the  foregoing  reasons,  we  grant  MCI  a  60-  day  waiver  until  December  1,  2003,  of  the  requirement  to  deliver  a  prerecorded  identification  message  when  abandoning  a  call.  MCI 
 will  still  be  required  to  comply  with  all  other  requirements  as  provided  in  Section  64.1200(  a)(  6)  by  the  scheduled  effective  date  of  October  1,  2003. 


 23  Waiver  Request  at  4. 
 24  See  Waiver  Request,  Declaration  of  Randy  Hicks  on  Behalf  of  MCI,  at  3-  4. 
 25  MCI  asserts  that  compliance  in  this  manner  would  be  considerably  more  burdensome  for  MCI.  See  Waiver 
 Request  at  6.  26 
 See  MCI  Reply  Comments  at  8,  n.  32.  27 
 See  Waiver  Request  at  6. 
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 III.  ORDERING  CLAUSES 
 11.  Accordingly,  pursuant  to  authority  contained  in  Sections  1,  4  and  227  of  the  Communications  Act  of  1934,  as  amended,  47  U.  S.  C.    151,  154,  227,  and  the  authority 


 delegated  under  sections  0.141,  0.361,  and  1.3  of  the  Commissions  rules,  47  C.  F.  R.    0.141,  0.361,  1.3,  the  waiver  request  relating  to  47  C.  F.  R.    64.1200(  a)(  6)  filed  by  Worldcom,  Inc.  d/  b/  a 
 MCI  on  August  27,  2003  IS  GRANTED  until  December  1,  2003,  to  the  extent  indicated  herein. 
 12.  IT  IS  FURTHER  ORDERED  that  this  Order  is  effective  upon  release. 


 FEDERAL  COMMUNICATIONS  COMMISSION 


 K.  Dane  Snowden  Chief,  Consumer  &  Governmental  Affairs  Bureau 
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