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 Federal  Communications  Commission  DA  05-  1667 
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 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 


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


 National  Automobile  Dealers  Association  Petition  for  Declaratory  Ruling 


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 CG  Docket  No.  02-  278 


 DECLARATORY  RULING 
 Adopted:  June  14,  2005  Released:  June  15,  2005 
 By  the  Acting  Chief,  Consumer  &  Governmental  Affairs  Bureau: 
 I.  INTRODUCTION 
 1.  In  this  Declaratory  Ruling,  we  clarify  that  the  Commissions  rules  that  prohibit  the  initiation  of  telephone  solicitations  to  residential  telephone  subscribers  registered  on  the  national  do-  not-call 


 list  do  not  extend  to  calls  made  for  the  limited  purpose  of  informing  consumers  of  recalls  due  to  a  product  safety  or  defect  concern  and  scheduling  appointments  to  correct  such  problems  at  no  cost  to  the 
 consumer.  1  We  believe  this  clarification  will  ensure  that  consumers  continue  to  receive  important  product  safety  information  without  unduly  infringing  upon  the  consumer  privacy  protections  afforded  by  the 
 national  do-  not-  call  list. 
 II.  BACKGROUND 
 A.  Telephone  Consumer  Protection  Act  of  1991 
 2.  On  December  20,  1991,  Congress  enacted  the  Telephone  Consumer  Protection  Act  (TCPA),  as  codified  in  section  227  of  the  Communications  Act  of  1934,  as  amended  (the  Act),  in  an 


 effort  to  address  a  growing  number  of  telephone  marketing  calls  and  certain  telemarketing  practices  Congress  found  to  be  an  invasion  of  consumer  privacy  and  even  a  risk  to  public  safety.  2  In  relevant  part, 
 the  TCPA  required  the  Commission  to  initiate  a  rulemaking  proceeding  concerning  the  need  to  protect  residential  telephone  subscribers  privacy  rights  3  and  specifically  authorized  the  Commission  to  consider 
 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.  4  Section  227(  a)(  3)  of  the  Act 


 1  See  47  C.  F.  R.    64.  1200(  c)(  2). 
 2  Telephone  Consumer  Protection  Act  of  1991,  Pub.  L.  No.  102-  243,  105  Stat.  2394  (1991),  codified  at  47  U.  S.  C.   
 227.  The  TCPA  amends  Title  II  of  the  Communications  Act  of  1934,  47  U.  S.  C.    201  et  seq.  3 
 47  U.  S.  C.    227(  c)(  1).  4 
 47  U.  S.  C.    227(  c)(  3). 
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 defines  a  telephone  solicitation  as  the  initiation  of  a  telephone  call  or  message  for  the  purpose  of  encouraging  the  purchase  or  rental  of,  or  investment  in,  property,  goods,  or  services,  which  is  transmitted 
 to  any  person.  5  In  1992,  the  Commission  adopted  rules  implementing  the  TCPA,  opting  at  that  time  to  require  that  entities  making  telephone  solicitations  institute  procedures  for  maintaining  company-  specific 
 do-  not-  call  lists  rather  than  establishing  a  national  do-  not-  call  list.  6 
 3.  On  March  11,  2003,  the  Do-  Not-  Call  Implementation  Act  was  signed  into  law,  requiring  the  Commission  to  issue  a  final  rule  in  its  ongoing  TCPA  proceeding  within  180  days  of  enactment,  and 


 to  consult  and  coordinate  with  the  Federal  Trade  Commission  (FTC)  to  maximize  consistency  with  the  rules  promulgated  by  the  FTC.  7  On  July  3,  2003,  the  Commission  revised  the  TCPA  rules  and  adopted 
 new  rules  to  provide  consumers  with  several  options  for  avoiding  unwanted  telephone  solicitations.  8  In  particular,  the  Commission  established  a  national  do-  not-  call  registry  that  would  be  jointly  administered 
 by  the  FTC  and  this  Commission.  The  national  registry,  which  went  into  effect  on  October  1,  2003,  prohibits,  with  limited  exceptions,  the  making  of  any  telephone  solicitation  to  a  residential  subscriber  that 
 has  registered  his  or  her  telephone  number  on  the  national  do-  not-  call  registry.  9  To  date  approximately  88  million  residential  telephone  numbers  have  been  registered  on  the  national  do-  not-  call  registry. 


 B.  National  Automobile  Dealer  Association  Petition 
 4.  On  March  28,  2005,  the  National  Automobile  Dealers  Association  (NADA)  filed  a  request  for  clarification  that  the  national  do-  not-  call  rules  do  not  prohibit  an  automobile  or  truck 


 dealership  from  calling  consumers  at  phone  numbers  registered  on  the  national  registry  for  the  purpose  of:  (i)  informing  consumers  that  their  vehicles  are  subject  to  recall  due  to  a  safety,  emissions  or  other  defect 
 or  problem,  and  (ii)  scheduling  appointments  with  consumers  at  the  dealerships  service  facility  to  correct  the  noted  problem.  10  NADA  contends  that  calls  regarding  product  recalls  do  not  fall  within  the  TCPAs 
 definition  of  telephone  solicitation  since  consumers  are  neither  requested  nor  required  to  purchase  the  services  necessary  to  repair  defects  or  problems  addressed  by  a  recall.  11  NADA  argues  that  clarifying  this 
 issue  will  help  advance  the  important  public  policy  objectives  of  increasing  consumer  awareness  of,  and  response  to,  recalls  involving  products  sold  by  franchised  automobile  and  truck  dealers.  12  NADA  notes 
 that  because  there  are  potential  civil  and  administrative  penalties  involved  in  violations  of  the  TCPA,  any 


 5  47  U.  S.  C.    227(  a)(  3). 
 6  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.  7 
 Do-  Not-  Call  Implementation  Act,  Pub.  L.  No.  108-  10,  117  Stat.  557  (2003),  codified  at  15  U.  S.  C.    6101.  8 
 Rules  and  Regulations  Implementing  the  Telephone  Consumer  Protection  Act  of  1991,  CG  Docket  No.  02-  278,  Report  and  Order,  18  FCC  Rcd  14014  (2003)  (2003  TCPA  Order). 


 9  47  C.  F.  R.    64.1200(  c)(  2).  See  also  Mainstream  Marketing  Services,  Inc.  v.  Federal  Trade  Commn,  358  F.  3d 
 1228  (10  th  Cir.  2004)  (upholding  the  constitutionality  of  the  national  do-  not-  call  registry),  cert.  denied,  2004  WL  2050134  (U.  S.  Oct.  4,  2004)  (No.  03-  1552). 


 10  National  Automobile  Dealers  Association,  Petition  for  Declaratory  Ruling  dated  March  28,  2005  (NADA 
 Petition).  NADA  represents  approximately  20,  000  franchised  automobile  and  truck  dealers.  11 
 NADA  Petition  at  1-  2.  NADA  notes  that  the  FTC  recently  designated  product  recall  messages  as  transactional  or  relationship  rather  than  commercial  pursuant  to  proceedings  under  the  Controlling  the  Assault  of  Non-  Solicited 


 Pornography  and  Marketing  Act  of  2003  (citing  Definitions  and  Implementation  Under  the  CAN-  SPAM  Act;  Final  Rule,  70  Fed.  Reg.  3110,  3117  (Jan.  19,  2005)). 


 12  NADA  Petition  at  1. 
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 ambiguity  on  this  point  may  significantly  reduce  telephone  notifications  to  consumers  about  vehicle  or  equipment  recalls  and  undermine  the  efforts  of  vehicle  manufacturers,  parts  manufacturers,  the  National 
 Highway  Traffic  Safety  Administration  and  the  Environmental  Protection  Agency  to  maximize  the  effectiveness  of  such  recalls.  13 


 III.  DISCUSSION 
 5.  We  clarify  that  telephone  calls  to  residential  subscribers  for  the  limited  purpose  of  informing  consumers  of  recalls  due  to  a  product  safety  or  defect  concern  and  scheduling  appointments  to 


 correct  such  problem  at  no  cost  to  the  consumer  are  not  prohibited  under  the  Commissions  rules  even  if  the  recipients  telephone  numbers  are  registered  on  the  national  do-  not-  call  list.  14  Section  64.1200(  c)(  2) 
 of  the  Commissions  rules  provides  that  [  n]  o  person  or  entity  shall  initiate  any  telephone  solicitation,  as  defined  in  [section  64.1200(  f)(  9)]  of  this  section  to  [  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.  .  ..  15  We  agree  with  NADA  that  calls  made  to  consumers  for  the  purpose 
 of  informing  them  of  product  recalls  are  not  telephone  solicitations  because  such  calls  are  not  made  for  the  purpose  of  encouraging  the  purchase  or  rental  of,  or  investment  in,  property,  goods,  or  services.  16 
 As  a  result,  these  rules  do  not  prohibit  such  calls  to  consumers  that  have  registered  their  telephone  numbers  on  the  national  do-  not-  call  list. 


 6.  We  believe  this  clarification  will  ensure  that  consumers  are  made  aware  of  potential  safety  concerns  involving  products  that  they  have  purchased  and  have  an  opportunity  to  correct  those 
 defects  in  a  timely  manner.  There  are  approximately  88  million  residential  telephone  numbers  currently  on  the  national  do-  not-  call  list.  This  represents  a  significant  number  of  consumers  that  may  be  put  at  risk 
 by  delays  in  receiving  important  product  safety  information.  We  note  that  although  the  NADA  limits  its  request  for  clarification  to  product  recalls  relating  to  the  automobile  and  trucking  industry,  the  rationale 
 underlying  the  clarification  discussed  above  extends  to  any  product-  related  recall. 
 7.  Although  we  clarify  that  product  recalls  are  not  telephone  solicitations  subject  to  the  restrictions  of  the  national  do-  not-  call  list,  we  caution  that  our  clarification  is  limited  to  those  situations  in 


 which  the  telephone  call  is  made  for  the  purpose  of  informing  consumers  of  the  product  recall  and  scheduling  appointments  to  have  the  defect  repaired  or  replaced  at  no  cost  to  the  consumer.  To  the  extent 
 that  such  calls  also  include  offers  encouraging  the  purchase  of  other  goods  or  services,  the  call  will  be  deemed  a  prohibited  telephone  solicitation.  This  limitation  is  necessary  to  ensure  that  the  consumer 
 privacy  protections  afforded  by  the  national  do-  not-  call  list  are  not  circumvented. 


 13  NADA  Petition  at  1-  2.  See  also  Letter  from  Jacqueline  Glassman,  Chief  Counsel,  U.  S.  Department  of 
 Transportation,  National  Highway  Traffic  Safety  Administration  to  Marlene  H.  Dortch,  FCC  dated  April  29,  2005  (indicating  that  a  limited  exemption  to  the  National  Do-  Not-  Call  rules  to  permit  dealers  to  call  and  inform  a  vehicle 


 owner  of  the  existence  of  a  recall  and  to  schedule  an  appointment  to  have  that  vehicle  remedied  would  enhance  motor  vehicle  safety  by  improving  consumer  response  rate  to  manufacturer  recall  notices.). 
 14  The  TCPA  and  our  rules  limit  registrations  on  the  national  do-  not-  call  list  only  to  residential  telephone 
 subscribers.  Thus,  the  national  do-  not-  call  rules  create  no  impediment  to  calls  made  to  business  subscribers.  See  47  U.  S.  C.    227(  c)(  3);  47  C.  F.  R.    64.  1200(  c)(  2). 


 15  47  C.  F.  R.    64.1200(  c)(  2)  (emphasis  added). 
 16  See  47  C.  F.  R.    64.  1200(  f)(  9)  (incorporating  the  statutory  definition  of  telephone  solicitation  in  section  227(  a)(  3) 
 of  the  Act).  See  also  CAN-  SPAM  Act,  Section  3(  2)(  B)  and  3(  17)(  A),  codified  at  15  U.  S.  C.    7702(  2)(  B)  and  7702(  17)(  A).  The  CAN-  SPAM  Act  states  that  commercial  messages  do  not  include  transactional  or 


 relationship  messages,  such  as  messages  regarding  product  recall  information. 
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 IV.  ORDERING  CLAUSES 
 8.  Accordingly,  IT  IS  ORDERED  that,  pursuant  to  Sections  1-  4,  227,  and  303(  r)  of  the  Communications  Act  of  1934,  as  amended,  47  U.  S.  C.    151-  154,  227,  and  303(  r);  and  Section  64.1200 


 of  the  Commissions  Rules,  47  C.  F.  R.    64.1200,  this  Declaratory  Ruling  in  CG  Docket  No.  02-  278  IS  ADOPTED  as  set  forth  herein. 


 9.  IT  IS  FURTHER  ORDERED,  that  the  Petition  for  Declaratory  Ruling  filed  by  the  National  Automobile  Dealers  Association  IS  GRANTED  to  the  extent  stated  herein. 


 FEDERAL  COMMUNICATIONS  COMMISSION 
 Monica  S.  Desai  Acting  Chief 
 Consumer  &  Governmental  Affairs  Bureau 
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