[Federal Register Volume 69, Number 159 (Friday, October 8, 2004)]
[Rules and Regulations]
[Pages 60311-60316]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-22755]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 64

[CG Docket No. 02-278; FCC 04-204]


Rules and Regulations Implementing the Telephone Consumer 
Protection Act of 1991

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: This document amends the rules implementing the Telephone 
Consumer Protection Act (TCPA) to establish a limited safe harbor 
period from the prohibition on placing autodialed or prerecorded 
message calls to wireless numbers that have been recently ported from 
wireline to wireless service. This document also amends our existing 
safe harbor rules for the national do-not-call registry so that 
telemarketers are required to access the do-not-call list no more than 
31 days prior to making a telemarketing call.

DATES: Effective November 8, 2004, except the amendment to 47 CFR 
64.1200(c)(2)(i)(D) of the Commission's rules, which contains 
information collection requirements under the Paperwork Reduction Act 
(PRA) that are not effective until approved by the Office of Management 
and Budget. Written comments by the public on the new or modified 
information collections are due November 8, 2004. The Commission will 
publish a document in the Federal Register announcing the effective 
date for that section.

ADDRESSES: Federal Communications Commission, 445 12th Street, SW., 
Washington, DC 20554. In addition to filing comments with the Office of 
the Secretary, a copy of any comments on the Paperwork Reduction Act 
(PRA) information collection requirements contained herein should be 
submitted to Leslie Smith, Federal Communications Commission, Room 1-
A804, 445 12th Street, SW., Washington, DC 20554, or via the Internet 
to <a href="/cdn-cgi/l/email-protection#622e07110e0b074c310f0b160a220401014c050d14"><span class="__cf_email__" data-cfemail="93dff6e0fffaf6bdc0fefae7fbd3f5f0f0bdf4fce5">[email protected]</span></a>, and to Kristy L. LaLonde, OMB Desk Officer, 
Room 10234 NEOB, 725 17th Street, NW., Washington, DC 20503 or via the 
Internet to <a href="/cdn-cgi/l/email-protection#7f340d160c0b0620335120331e3310111b1a3f10121d511a100f51181009"><span class="__cf_email__" data-cfemail="460d342f35323f190a68190a270a2928222306292b246823293668212930">[email protected]</span></a> or by fax to 202-395-5167.

FOR FURTHER INFORMATION CONTACT: Erica McMahon or Richard Smith, 
Consumer Policy Division, Consumer & Governmental Affairs Bureau, (202) 
418-2512. For additional information concerning the PRA information 
collection requirements contained in this document, contact Les Smith 
at 202-418-0217 or via the Internet at <a href="/cdn-cgi/l/email-protection#7e321b0d12171b502d13170a163e181d1d50191108"><span class="__cf_email__" data-cfemail="3d71584e515458136e505449557d5b5e5e135a524b">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order, 
CG Docket No. 02-278, FCC 04-204, adopted August 25, 2004, and released 
September 21, 2004. The Order contains new or modified information 
collection requirements subject to the PRA of 1995, Public Law 104-13. 
These will be submitted to the Office of Management and Budget (OMB) 
for review under section 3507(d) of the PRA. OMB, the general public, 
and other Federal agencies are invited to comment on the new or 
modified information collection requirements contained in this 
proceeding. The Order addresses issues arising from Rules and 
Regulations Implementing the Telephone Consumer Protection Act of 1991, 
Further Notice of Proposed Rulemaking, (2004 TCPA Further Notice), CG 
Docket No. 02-278, FCC 04-52, 19 FCC Rcd 5056, March 19, 2004; 
published at 69 FR 16873, March 31, 2004. Copies of any subsequently 
filed documents in this matter will be available for public inspection 
and copying during regular business hours at the FCC Reference 
Information Center, Portals II, Room CY-A257, 445 12th Street, SW., 
Washington, DC 20054. The complete text of this decision may be 
purchased from the Commission's duplicating contractor, Best Copy and 
Printing, Inc. (BCPI), Portals II, 445 12th Street, SW., Room CY-B402, 
Washington, DC 20554. Customers may contact BCPI, Inc. at its Web site: 
http://www.bcpiweb.com or call 1-800-378-3160. To request materials in 
accessible formats for people with disabilities (Braille, large print, 
electronic files, audio format), send an e-mail to <a href="/cdn-cgi/l/email-protection#a6c0c5c5939692e6c0c5c588c1c9d0"><span class="__cf_email__" data-cfemail="d1b7b2b2e4e1e591b7b2b2ffb6bea7">[email protected]</span></a> or 
call the Consumer & Governmental Affairs Bureau at (202) 418-0530 
(voice) or (202) 418-0432 (TTY). The Order can also be downloaded in 
Word and Portable Document Format (PDF) at http://www.fcc.gov/cgb/policy.

[[Page 60312]]

Paperwork Reduction Act

    This Order contains new or modified information collection 
requirements. The Commission, as part of its continuing effort to 
reduce paperwork burdens, invites the general public to comment on the 
information collection requirements contained in this Order as required 
by the Paperwork Reduction Act (PRA) of 1995, Public Law 104-13. Public 
and agency comments are due November 8, 2004. In addition, the 
Commission notes that pursuant to the Small Business Paperwork Relief 
Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), in this 
document, we have assessed the effects of amending the safe harbor 
provisions for the national do-not-call registry to require 
telemarketers to access the registry every 31 days, and find that there 
may be an increased administrative burden on businesses with fewer than 
25 employees. However, since this action is consistent with the Federal 
Trade Commission's recent rule change, we believe small businesses 
subject to the jurisdiction of both agencies will also benefit from 
consistent requirements. In addition, the national do-not-call registry 
allows telemarketers that have already downloaded the entire database 
to request only those changes to their previous list, which should 
substantially alleviate any burdens imposed on businesses with fewer 
than 25 employees to update their call lists on a more frequent basis.

Synopsis

    The Commission establishes a limited safe harbor period in which 
persons will not be liable for placing autodialed or artificial or 
prerecorded message calls to numbers recently ported from wireline to 
wireless service. As discussed in greater detail below, we conclude 
that callers will not be considered in violation of 47 CFR 
64.1200(a)(1)(iii) for autodialed or artificial or prerecorded message 
calls placed to a wireless number that has been ported from a wireline 
service within the previous 15 days, provided the number is not already 
on the national do-not-call registry or caller's company-specific do-
not-call list. The 15-day safe harbor period will run from the time the 
port has been completed and the number appears in Neustar's 
``Intermodal Ported TN Identification Service'' as a wireless number. 
We believe this safe harbor will provide a reasonable opportunity for 
persons, including small businesses, to identify numbers that have been 
ported from wireline to wireless service and, therefore, allow callers 
to comply with our rules.
    Given the limited duration of this safe harbor period and the fact 
that consumers may continue to avail themselves of the national and 
company-specific do-not-call lists, we do not believe that this action 
will unduly infringe consumer privacy interests, which is consistent 
with congressional intent. We emphasize that the safe harbor provision 
created herein in no way obviates the need for telemarketers to abide 
by any of the Commission's other telemarketing rules including honoring 
the requirements of the national and company-specific do-not-call 
lists. In addition, this safe harbor provision will not excuse any 
willful violation of the ban on using autodialers or prerecorded 
messages to call wireless numbers. Thus, even within the 15-day safe 
harbor period, persons will be considered in violation of this 
prohibition if they knowingly place an autodialed or prerecorded 
message call to a wireless number absent an emergency or the prior 
express consent of the called party. We also note that this safe harbor 
will extend only to voice calls, not to text messages which are sent 
specifically to numbers associated with wireless devices.
    We note that one commenter contends that the Commission lacks the 
statutory authority to adopt a safe harbor. However, the record is 
clear that it is impossible for telemarketers to identify immediately 
those numbers that have been ported from a wireline service to a 
wireless service provider. Commenters maintain that, absent a limited 
safe harbor period, telemarketers simply cannot comply with the 
statute. The safe harbor is not an ``exemption'' from the requirements 
on calls to wireless numbers; it is instead a time period necessary to 
allow callers to come into compliance with the rules. Otherwise, the 
statute would ``demand the impossible.'' Even if telemarketers had 
immediate access to such information (which they do not), several 
commenters note that some period of time still is necessary to update 
marketing lists to suppress calls to recently ported wireless numbers. 
Therefore, we believe this limited safe harbor period is necessary to 
allow callers to comply with this statutory provision.
    We decline to adopt a safe harbor period that extends beyond 15 
days as suggested by several commenters. Although we acknowledge that a 
30 or 31-day period would be consistent with the requirements to update 
additions to the national and company specific lists, and therefore 
create some administrative efficiencies, we believe such considerations 
are offset by the potential costs and privacy concerns to wireless 
subscribers that may be charged for receiving telephone solicitations 
during this extended period. We agree that the duration of any such 
safe harbor period should be limited to the extent that it is 
technologically reasonable for marketers to obtain the appropriate data 
to comply with our rules. The information provided in this proceeding 
indicates that a 15-day safe harbor period is a sufficient period of 
time to ensure that this information will be both available to the 
industry and can be disseminated to callers in order to comply with our 
rules. For example, Neustar recently made available a service that will 
provide data on numbers ported from wireline to wireless service on a 
daily basis. In addition, although not publicly available, Call 
Compliance describes a system that it contends will block telephone 
calls to wireless numbers, including those that have just been ported 
from wireline to wireless service.
    We also decline to extend our safe harbor provision to any call 
made erroneously or inadvertently to a wireless number regardless of 
whether that number has been recently ported from wireline service as 
suggested by the Direct Marketing Association (DMA). We note that the 
Commission considered and declined to adopt a similar proposal in the 
2003 TCPA Order(68 FR 44144, July 25, 2003). We believe that adoption 
of this proposal is overly broad, unnecessary, and contrary to the 
intent of Congress. As explained, the safe harbor we adopt here is for 
a limited purpose. Conversely, the DMA's proposal would establish a 
safe harbor provision for autodialed or prerecorded calls to any 
wireless number in a manner equivalent to the safe harbor adopted in 
the context of the national do-not-call rules. As the Commission noted 
in the 2003 TCPA Order, Congress found that automated or prerecorded 
telephone calls are a greater nuisance and invasion of privacy than 
live solicitation calls. In section 227(b)(1)(A), Congress enacted a 
strict prohibition on such calls to emergency numbers, health care 
facilities, and wireless numbers absent the prior express consent of 
the called party. Such calls were determined by Congress to threaten 
public safety and inappropriately shift marketing costs from sellers to 
consumers. The Commission has noted that wireless customers are often 
charged for incoming calls. Coupled with the fact that autodialers can 
dial thousands of numbers in a short period of time, such

[[Page 60313]]

calls can be particularly costly to wireless subscribers.
    We believe the limited safe harbor provision that we have adopted 
herein will substantially alleviate the concerns expressed by the DMA 
andNewspaper Association of America (NAA) regarding calls made to 
wireless numbers. Those concerns derive largely from the recent 
implementation of intermodal Local Number Portability (LNP) and not 
from difficulties in otherwise complying with the TCPA's restrictions 
on autodialed or prerecorded message calls to wireless numbers. In the 
2003 TCPA Order released just a few months prior to the implementation 
of LNP, the record in that proceeding indicated that telemarketing to 
wireless phones was not a significant problem due to the successful 
efforts of industry to comply with our rules. For example, the DMA has 
created the ``Wireless TelephoneSuppression Service'' that provides a 
list of approximately 280 million numbers that are currently used or 
have been set aside for CMRS carriers. We have no reason to believe 
that the circumstances regarding calls to wireless numbers have 
otherwise changed since the Commission reviewed this issue in 2003. To 
the extent that intermodal LNP has been introduced, we believe the 
steps taken herein are sufficient to allow callers to comply with our 
rules while maintaining the privacy interests and cost protections 
afforded to wireless consumers by the TCPA. We therefore deny requests 
for a more expansive safe harbor from the prohibition on autodialed or 
prerecorded messages to wireless numbers than that adopted herein.
    Finally, we decline to establish a sunset date for this safe harbor 
provision. We agree with several commenters that the issues associated 
with real-time access to numbers ported from wireline to wireless 
service will be ongoing for the foreseeable future. We anticipate, 
however, that technologies will continue to improve over time to make 
such information more readily available and, therefore we may revisit 
this issue at a later date.

National Do-Not-Call Registry

    Consistent with the recent decision of the FTC, we amend our 
existing safe harbor rule for telemarketers that must comply with the 
national do-not-call registry to require such telemarketers to access 
the national do-not-call list and purge registered numbers from their 
call lists no more than 31 days prior to making a telemarketing call. 
We believe that this amendment will benefit consumer privacy interests 
by reducing from three months to 31 days the maximum period in which 
telemarketers must update their database of numbers registered on the 
national do-not-call list in order to qualify for the safe harbor 
protections. We also conclude that this action is consistent with the 
intent of Congress. As noted above, in the Appropriations Act, Congress 
directed the FTC to amend its corresponding safe harbor rule in a 
similar manner. Although the Appropriations Act does not specifically 
require this Commission to take action, the Do-Not-Call Implementation 
Act directs the Commission to consult and coordinate with the FTC to 
``maximize consistency'' with the rules promulgated by the FTC. As the 
Commission noted in the 2004 Further Notice (69 FR 16873, March 31, 
2004), absent action to amend our safe harbor rule as it applies to the 
national database, many telemarketers will face inconsistent standards 
because the FTC's jurisdiction extends only to certain entities, while 
our jurisdiction extends to all telemarketers. This would result in 
substantial confusion for consumers and potentially hinder state and 
federal regulatory efforts to monitor and enforce the national do-not-
call rules.
    We decline to establish a ``grace period'' advocated by a few 
commenters that would require telemarketers to obtain the information 
from the national do-not-call list every 30 or 31 days, but would not 
require them to stop calling consumers for some additional period of 
time. In so concluding, we agree with the FTC's determination that 
there is no support for this suggested approach in the Appropriations 
Act. In fact, the legislative history suggests that the sole purpose of 
shortening the requirement to purge the do-not-call list is to reduce, 
to one month, the amount of time consumers must wait to see a reduction 
in unwanted telephone solicitations. Although the Appropriations Act 
does not specifically require action by this Commission, for all the 
reasons discussed above, we believe that our actions should be 
consistent with those of the FTC and the intent of Congress.
    We recognize that more frequent updates of the national registry 
may impose some additional administrative burdens on businesses, 
including small businesses. We believe, however, that the enhanced 
consumer privacy protections created by this requirement, taken in 
conjunction with the regulatory benefits to state and federal 
governments in establishing consistent requirements on all 
telemarketers, outweigh any such administrative burdens. We also note 
that the national do-not-call registry includes a feature whereby 
businesses that have already downloaded the entire database may 
thereafter request only a list of changes to their previous list (newly 
added and removed numbers), rather than downloading the entire database 
of approximately 60 million numbers every 31 days. This option should 
substantially alleviate any burdens imposed on businesses that may 
result from more frequent update requirements. In addition, at the 
request of National Automobile Dealers Association (NADA), we clarify 
that small sellers or telemarketers that register and pay the annual 
fee to use the national do-not-call database are not required to either 
conduct an initial or subsequent download of the entire database if 
they use only the single number lookup feature to screen their outgoing 
telephone solicitations. The FTC reached a similar conclusion noting 
that this decision constitutes no change from the existing rule.
    We agree with several commenters that it may take some time for 
telemarketers and small businesses to implement procedures to access 
the national registry on a more frequent basis than previously required 
under our rules. In addition, the FTC has indicated that some 
additional time is required to enable the FTC and the vendor that 
operates the national do-not-call registry to implement modifications 
to the registry systems anticipated by the increase in usage resulting 
from this rule amendment. Therefore, consistent with the FTC's 
determination, we establish January 1, 2005, as the effective date of 
this rule amendment. We emphasize that nothing we do herein otherwise 
effects the safe harbor requirements, as set forth in 47 CFR 
64.1200(c)(2)(i), for violations of the national do-not-call rules. 
Thus, while sellers and telemarketers are not required to conduct a 
physical download of the entire registry to be in compliance with the 
rules, they must nevertheless maintain and record a list of telephone 
numbers obtained using the single number lookup feature that the seller 
may not contact and document the process, in order to benefit from the 
safe harbor provision.

Final Regulatory Flexibility Analysis

    As required by the Regulatory Flexibility Act of 1980, as amended 
(RFA), an Initial Regulatory Flexibility Analysis (IRFA) was 
incorporated in the Notice of Proposed Rulemaking and Further Notice of 
Proposed Rulemaking (2004 TCPA Further Notice) (69 FR 16873, March 31, 
2004) released by the Commission on March 19, 2004. The

[[Page 60314]]

Commission sought written public comments on the proposals contained in 
the 2004 TCPA Further Notice, including comments on the IRFA. 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.

Need for, and Objectives of, the Order

    The TCPA was enacted to address certain telemarketing practices, 
including calls to wireless telephone numbers, which Congress found to 
be an invasion of consumer privacy and even a risk to public safety. 
The TCPA specifically prohibits calls using an autodialer or artificial 
or prerecorded message ``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.'' In addition, the TCPA required 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.
    In 2003, the Commission released a Report and Order (2003 TCPA 
Order) revising the TCPA rules to respond to changes in the marketplace 
for telemarketing. Specifically, we established in conjunction with the 
FTC a national do-not-call registry for consumers who wish to avoid 
unwanted telemarketing calls. The national do-not-call registry 
supplements long-standing company-specific rules which require 
companies to maintain lists of consumers who have directed the company 
not to contact them. In addition, we determined that the TCPA prohibits 
any call using an automatic telephone dialing system or an artificial 
or prerecorded message to any wireless telephone number. We concluded 
that this encompasses both voice calls and text calls to wireless 
numbers including, for example, Short Message Service calls. We 
acknowledged in the 2003 TCPA Order that, beginning in November of 
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. Intermodal local number 
portability (LNP) went into effect November, 2003. We now modify the 
Commission's rules to establish a limited safe harbor period in which 
persons will not be liable for placing autodialed or artificial or 
prerecorded message calls to numbers ported from wireline to wireless 
service within the previous 15 days.
    The 2003 TCPA Order also required that telemarketers use the 
national do-not-call registry maintained by the FTC to identify 
consumers who have requested not to receive telemarketing calls. In 
order to avail themselves of the safe harbor for telemarketers, a 
telemarketer was required to update or ``scrub'' its call list against 
the national do-not-call registry every 90 days. Recently the FTC 
amended its safe-harbor provision to require telemarketers to scrub 
their call lists every 31 days. We now modify the Commission's rules to 
parallel changes to the FTC's rules. With this amendment, all 
telemarketers are required to scrub their lists against the national 
do-not-call registry every 31 days in order to avail themselves of that 
safe harbor.

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

    There were no comments raised that specifically addressed the 
proposed rules and policies presented in the IRFA. Nonetheless, the 
agency considered the potential impact of the rules proposed in the 
IRFA on small entities and attempted, to the extent possible, to reduce 
the economic impact of the rules enacted herein on such entities. 
Comments to the 2004 Further Notice fell into two categories. The first 
category includes those comments on the safe harbor provision for calls 
to wireless numbers; the second category includes comments regarding 
the safe harbor provision for the national do-not-call list.
    Two comments were filed that specifically mentioned small 
businesses--Montalvan and the National Automobile Dealers Association 
(NADA). Montalvan commented on the unreasonableness of asking small 
businesses to scrub lists on a monthly basis. NADA filed comments 
urging the Commission not to adopt the proposed amendment requiring 
businesses to download the do-not-call list monthly instead of 
quarterly. NADA claims that any benefit to maintaining consistency 
between the FTC and the Commission is outweighed by the burden on small 
businesses caused by the scrubbing of call lists three times more 
often. In addition, NADA seeks clarification that the use of the single 
number lookup feature constitutes compliance with the requirement that 
businesses check the do-not-call list every 31 days. Lastly, NADA 
argues that small businesses need ``adequate time to comply with the 
monthly download requirement.'' And, NADA seeks an effective date no 
earlier than January 1, 2005 or six months after publication in the 
Federal Register, whichever is later.

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

    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. The RFA generally defines the 
term ``small entity'' as having the same meaning as the terms ``small 
business,'' ``small organization,'' and ``small governmental 
jurisdiction.'' In addition, the term ``small business'' has the same 
meaning as the term ``small business concern'' under the Small Business 
Act. Under the Small Business Act, ``small business concern'' is one 
which: (1) Is independently owned and operated; (2) is not dominant in 
its field of operation; and (3) satisfies any additional criteria 
established by the SBA.
    The Commission's rules on telephone solicitation and the use of 
autodialers and artificial or prerecorded messages apply to a wide 
range of entities, including all entities that use the telephone to 
advertise. That is, our action affects any entity that uses an 
autodialer or prerecorded message to make telephone calls and the 
myriad of businesses throughout the nation that use telemarketing to 
advertise their goods or services. 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.
    Small Businesses. Nationwide, there are a total of 22.4 million 
small businesses, according to SBA data.
    Small Organizations. As of 1992, nationwide there were 
approximately 275,801 small organizations [not-for-profit].
    Telemarketers. Again, we note that our action affects an exhaustive 
list of business types. 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. For 1997, there were 1,727 firms 
in the ``telemarketing bureau'' category, total, which operated for the

[[Page 60315]]

entire year. 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

    The revision to the safe harbor rules that require telemarketers to 
update their lists monthly instead of quarterly, carries no additional 
compliance costs for accessing the national do-not-call registry, 
because once a telemarketer has paid its fee to the FTC the 
telemarketer may access the list as often as it wants, up to once a 
day. There may, however, be an increase in costs associated with 
scrubbing the telemarketer's call list more frequently. Increased costs 
might be caused by a decrease in staff efficiency because staff will be 
required to scrub the call list monthly instead of quarterly or by 
increased payments to a third party for ``scrubbing'' services. We note 
in the Order, however, that the national do-not-call registry includes 
a feature whereby businesses that have already downloaded the entire 
database may thereafter request only a list of changes to their 
previous list (containing newly added and removed numbers), rather than 
downloading the entire database of approximately 60 million numbers 
every 31 days. This feature should substantially alleviate any burdens 
imposed on small businesses that may result from more frequent update 
requirements by minimizing for small businesses the cost of updating 
the list each time they must do so. In addition, at the request of 
NADA, we clarify that small sellers or telemarketers that register and 
pay the annual fee to use the national do-not-call database are not 
required to either conduct an initial or subsequent download of the 
entire database if they use only the single number lookup feature to 
screen their outgoing telephone solicitations. In conclusion, we 
believe that the enhanced consumer privacy protections derived from 
reducing from three months to 31 days the maximum period in which 
telemarketers must update their call lists using the do-not-call list, 
taken in conjunction with the regulatory benefits to state and federal 
governments and consumers in establishing consistent requirements for 
all telemarketers, outweigh the administrative burdens associated with 
this increase in compliance requirements.

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

    The RFA requires an agency to describe any significant, 
specifically small business, 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 and 
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.''
    First, the TCPA specifically prohibits calls using an autodialer or 
artificial or prerecorded message to any wireless telephone number. 
With the advent of intermodal number portability it became important 
for companies engaged in telemarketing to track ported numbers in order 
to ensure continued compliance with the TCPA. The Commission is now 
adopting a limited safe harbor for autodialed and prerecorded message 
calls to wireless numbers that were ported within 15 days from a 
wireline service to a wireless service provider. It is our belief that 
this 15-day safe harbor period will provide a reasonable opportunity 
for small businesses to identify numbers that have been ported and to 
comply with the rules. In addition, we believe that the creation of 
this safe harbor will not have a significant economic impact on any 
small businesses, only a benefit.
    One alternative we considered was not to adopt a safe harbor. That 
alternative could make compliance with the TCPA's prohibition almost 
impossible for small businesses using autodialers and prerecorded 
messages. The majority of commenters support the adoption of a safe 
harbor, although most request a minimum of 30 days. In our view, 30 
days places too much of a burden on consumers, who may be subjected to 
calls to their wireless phones for which they must pay for up to a 
month's time. This is an inappropriate shifting of the costs of 
advertising from businesses, including small businesses, to wireless 
subscribers. We believe that the creation of a limited safe harbor 
period of 15 days balances the needs of small businesses against the 
needs of wireless customers. Furthermore, we do not believe that 
consumer privacy interests will be negatively impacted by our decision, 
in part because consumers may continue to avail themselves of the 
national and company-specific do-not-call lists.
    Second, as indicated in Section D of the FRFA, the Commission has 
modified the TCPA safe-harbor provision. This modification requires 
that telemarketers scrub their lists on a monthly, rather than a 
quarterly basis. One alternative considered by the Commission was to 
leave the safe harbor unchanged. The advantage to such an alternative 
was that there would have been no increased burden on small businesses. 
Businesses would continue to download numbers from the national do-not-
call registry and scrub their own call lists of those numbers every 
three months. The disadvantage in maintaining the status quo would have 
been that the FTC and Commission rules would be inconsistent, contrary 
to Congress' directive in the Do-Not-Call Implementation Act. Small 
businesses subject to the jurisdiction of both agencies would have been 
faced with this inconsistency. We believe that it is easier and less 
burdensome for small businesses if the two agencies have consistent 
requirements.
    Several commenters stated that it may take some time for 
telemarketers and small businesses to implement procedures before they 
can access the national registry on a monthly basis. In addition, the 
FTC has indicated that some additional time is required to enable the 
FTC and the vendor that operates the national do-not-call registry to 
implement modifications to the registry systems anticipated by the 
increase in usage resulting from this rule amendment. For both these 
reasons, we establish January 1, 2005, as the effective date of this 
rule amendment. This additional period will provide telemarketers and 
small businesses more time to modify their procedures to accommodate 
these changes.

Report to Congress

    The Commission will send a copy of the Order, including the Final
    Regulatory Flexibility Analysis (FRFA), in a report to be sent to 
Congress and the General Accounting Office pursuant to the 
Congressional Review Act, see 5 U.S.C. 801(a)(1)(A). In addition, the 
Commission will send a copy of the Order, including the FRFA, to the 
Chief Counsel for Advocacy of the Small Business Administration.

Ordering Clauses

    Accordingly, pursuant to the authority contained in Sections 1-4, 
227, and 303(r) of the Communications Act of 1934, as amended; 47 
U.S.C. 151-

[[Page 60316]]

154, 227 and 303(r); and 47 CFR 64.1200 of the Commission's rules, and 
the Do-Not-Call Implementation Act, Public Law Number 108-10, 117 
Statute 557, the Order in CG Docket No. 02-278 IS ADOPTED, and Part 64 
of the Commission's rules, 47 CFR 64.1200 is amended as set forth in 
the Final Rules. As discussed herein, the amended rule at 47 CFR 
64.1200(c)(2)(i)(D) will become effective January 1, 2005.
    The Petition for Declaratory Ruling filed by the Direct Marketing 
Association and Newspaper Association of America on January 29, 2004, 
is denied to the extent discussed herein. The Commission's Consumer & 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of this Order, including the Final Regulatory Flexibility 
Analysis, to the Chief Counsel for Advocacy of the Small Business 
Administration.

List of Subjects in 47 CFR Part 64

    Telephone.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.

Rule Changes

0
For the reasons discussed in the preamble, the Federal Communications 
Commission amends 47 CFR Part 64 as follows:

PART 64--MISCELLANEOUS RULES RELATING TO COMMON CARRIERS

0
1. The authority citation for part 64 continues to read as follows:

    Authority: 47 U.S.C. 154, 254 (k); secs. 403 (b)(2) (B), (C), 
Public Law 104-104, 110 Stat. 56. Interpret or apply 47 U.S.C. 201, 
218, 225, 226, 228, and 254 (k) unless otherwise noted.
* * * * *

0
2. Section 64.1200 is amended by adding paragraph (a)(1)(iv) and 
revising paragraph(c)(2)(i)(D) and adding a note to paragraph 
(c)(2)(i)(D) to read as follows:


Sec.  64.1200  Delivery restrictions.

    (a) * * *
    (1) * * *
    (iv) A person will not be liable for violating the prohibition in 
paragraph (a)(1)(iii) when the call is placed to a wireless number that 
has been ported from wireline service and such call is a voice call; 
not knowingly made to a wireless number; and made within 15 days of the 
porting of the number from wireline to wireless service, provided the 
number is not already on the national do-not-call registry or caller's 
company-specific do-not-call list.
* * * * *
    (c) * * *
    (2) * * *
    (i) * * *
    (D) Accessing the national do-not-call database. 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 31 days prior to the date any call is made, 
and maintains records documenting this process.

    Note to paragraph (c)(2)(i)(D): The requirement in paragraph 
64.1200(c)(2)(i)(D) for persons or entities to employ a version of 
the national do-not-call registry obtained from the administrator no 
more than 31 days prior to the date any call is made is effective 
January 1, 2005. Until January 1, 2005, persons or entities must 
continue to employ a version of the registry obtained from the 
administrator of the registry no more than three months prior to the 
date any call is made.

* * * * *
[FR Doc. 04-22755 Filed 10-7-04; 8:45 am]
BILLING CODE 6712-01-P


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