[Federal Register Volume 86, Number 36 (Thursday, February 25, 2021)]
[Rules and Regulations]
[Pages 11443-11449]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-01190]



[[Page 11443]]

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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 64

[CG Docket No. 02-278; FCC 20-186; FRS 17388]


Limits on Exempted Calls Under the Telephone Consumer Protection 
Act of 1991

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document, the Commission takes steps to implement of 
the Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and 
Deterrence Act (TRACED Act). First, the Commission codifies the 
Telephone Consumer Protection Act (TCPA) exemptions for calls to 
wireless numbers into the rules to make those exemptions more clear and 
understandable for both callers and consumers. Second, the Commission 
amends the TCPA exemptions for artificial or prerecorded voice calls 
made to residential telephone lines so each satisfies the TRACED Act's 
requirements to identify who can call, who can be called, and any call 
limits. The Commission adopts limits on the number of calls that can be 
made under the exemptions for non-commercial calls to a residence; 
commercial calls to a residence that do not include an advertisement or 
constitute telemarketing; tax-exempt nonprofit organization calls to a 
residence; and Health Insurance Portability and Accountability Act 
(HIPPA)-related calls to a residence. In addition, callers must have 
mechanisms in place to allow consumers to opt out of any future calls. 
This action will empower consumers to further limit the number of 
unwanted robocalls made under any TCPA exemption.

DATES: Effective March 29, 2021 except for the amendments to Sec.  
64.1200(a)(3)(ii) through (v), (b)(2) and (b)(3), and (d), which are 
delayed indefinitely. The Commission will publish a document in the 
Federal Register announcing the effective date of these amendments.

FOR FURTHER INFORMATION CONTACT: Richard D. Smith of the Consumer and 
Governmental Affairs Bureau at (717) 338-2797 or <a href="/cdn-cgi/l/email-protection#83d1eae0ebe2f1e7add0eeeaf7ebc3e5e0e0ade4ecf5"><span class="__cf_email__" data-cfemail="e3b18a808b829187cdb08e8a978ba3858080cd848c95">[email protected]</span></a>. 
For information regarding the PRA information collection requirements 
contained in the PRA, contact Cathy Williams, Office of Managing 
Director, at (202) 418-2918, or <a href="/cdn-cgi/l/email-protection#3172504559481f66585d5d58505c42715752521f565e47"><span class="__cf_email__" data-cfemail="b1f2d0c5d9c89fe6d8ddddd8d0dcc2f1d7d2d29fd6dec7">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report 
and Order, document FCC 20-186, adopted on December 29, 2020, released 
on December 30, 2020. The full text of document FCC 20-186 is available 
online at https://docs.fcc.gov/public/attachments/FCC-20-186A1.pdf. To 
request this document in accessible formats for people with 
disabilities (e.g., Braille, large print, electronic files, audio 
format) or to request reasonable accommodations (e.g., accessible 
format documents, sign language interpreters, CART), send an email to 
<a href="/cdn-cgi/l/email-protection#65030606505551250306064b020a13"><span class="__cf_email__" data-cfemail="7f191c1c4a4f4b3f191c1c51181009">[email protected]</span></a> or call the FCC's Consumer and Governmental Affairs 
Bureau at (202) 418-0530 (voice). The amendments to Sec.  
64.1200(a)(3)(ii) through (v), (b)(2) and (b)(3), and (d) are delayed 
indefinitely as they contain information collection requirements under 
the Paperwork Reduction Act (PRA) which must first be approved by the 
Office of Management and Budget (OMB).

Congressional Review Act

    The Commission sent a copy of document FCC 20-186 to Congress and 
the Government Accountability Office pursuant to the Congressional 
Review Act, 5 U.S.C. 801(a)(1)(A).

Final Paperwork Reduction Act of 1995 Analysis

    The Report and Order contains modified information collection 
requirements which are not effective until approval is obtained from 
OMB. 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 the Report and Order 
as required by the PRA of 1995, Public Law 104-13. 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), the 
Commission previously sought specific comment on how the Commission 
might further reduce the information collection burden for small 
business concerns with fewer than 25 employees.

Synopsis

    1. In the Report and Order, the Commission adopts measures to 
implement section 8 of the TRACED Act to ensure that any exemption 
adopted under sections 227(b)(2)(B) or (C) of the TCPA includes 
requirements for: (1) The classes of parties that may make such calls; 
(2) the classes of parties that may be called; and (3) the number of 
such calls that may be made to a particular called party.

A. Codifying Exemptions

    2. First, the Commission codifies all existing exemptions under 
section 227(b)(2)(C) of the TCPA for calls to wireless numbers in the 
Commission's rules to make the requirements more clear and easy to 
understand for both callers and called parties.

B. Section 227(b)(2)(B) Exemption Restrictions

1. Non-Commercial Calls to a Residence
    3. Callers. The Commission has exempted calls ``not made for a 
commercial purpose'' from the prohibition on artificial or prerecorded 
voice messages to residential telephone lines. The Commission concludes 
that this exemption satisfies the TRACED Act's requirements with 
respect to ``the classes of parties that may make such calls.'' The 
class of parties that may make such calls is limited to callers that 
are not calling for a commercial purpose. The Commission has indicated, 
for example, that this exemption includes calls conducting research, 
market surveys, political polling, or similar noncommercial activities. 
The purpose of such calls is not to advertise or market a commercial 
product or service.
    4. Called parties. The exemption for calls ``not made for a 
commercial purpose'' satisfies the TRACED Act's requirement with 
respect to the ``classes of parties that may be called'' because this 
exemption applies only to calls made to residential telephone lines. 
Thus, only residential telephone users may be called under this 
exemption.
    5. Number of calls. The TRACED Act requires the Commission to limit 
``the number of such calls that a calling party may make to a 
particular called party.'' The Commission therefore amends its rules to 
limit the number of calls that can be made to a particular residential 
line pursuant to the exemption for calls ``not made for a commercial 
purpose'' to three artificial or prerecorded voice calls within any 
consecutive 30-day period. These limits give non-commercial callers 
several opportunities over a month-long period to convey their message 
and to obtain consent for future calls. The Commission selected this 
limit as an appropriate balance in the context of federal debt 
collection calls, based on support in the record, while recognizing 
that there was no consensus what the exact number should be. These 
limits strike the appropriate balance between these callers reaching 
consumers with information and reducing the number of unexpected and 
unwanted calls consumers currently receive. The Commission intends to

[[Page 11444]]

monitor these limits to determine whether they may require adjustment 
in the future.
    6. The Commission emphasizes that callers can simply get consumer 
consent to make more than three non-commercial calls using an 
artificial or prerecorded voice within any consecutive 30-day period. 
As the numerical limitations only apply to artificial or prerecorded 
calls to residential numbers, and not live agent calls, the impact on 
callers is limited.
    7. Opt-out Requirement. The Commission's rules require that 
residential telephone subscribers be permitted to opt out of artificial 
and prerecorded voice calls that contain telemarketing messages. Under 
these rules, a consumer who wants to avoid further artificial or 
prerecorded telemarketing calls can ``opt out'' by dialing a telephone 
number (required to be provided in the artificial or prerecorded voice 
message) to register his or her do-not-call request in response to that 
call. The rules also require that, in every case where an artificial or 
prerecorded voice telephone message includes or introduces an 
advertisement or constitutes telemarketing and is delivered to a 
residential telephone line, the caller must provide an automated, 
interactive voice- and/or key press-activated opt-out mechanism for the 
called person to make a do-not-call request.
    8. To effectuate an opt-out mechanism, noncommercial callers must 
comply with the requirements of Sec. Sec.  64.1200(b) and (d) of the 
Commission's rules, which govern the process for handling do-not-call 
requests.
2. Commercial Calls to a Residence That Do Not Constitute Telemarketing
    9. Callers. The Commission has exempted calls ``made for a 
commercial purpose but [that] do[ ] not include or introduce an 
advertisement or constitute telemarketing'' from the prohibition on 
using an artificial or prerecorded voice message to call residential 
telephone lines. If these calls do not contain advertising or solicit 
the purchase of goods or services and otherwise conform to the 
requirements of the TRACED Act, the Commission concludes they should 
remain exempt from the TCPA prohibitions as the record shows consumers 
generally want and expect them.
    10. Called parties. The Commission further concludes that the 
exemption for commercial calls already satisfies the TRACED Act's 
requirement with respect to the ``classes of parties that may be 
called'' because this exemption applies only to calls made to 
residential telephone lines.
    11. Number of calls. The Commission limits the number of calls that 
can be made pursuant to the exemption for commercial calls to three 
artificial or prerecorded voice calls within any consecutive 30-day 
period. The Commission incorporates by reference the discussion 
relating to the number of calls that can be made pursuant to the 
exemption for calls not made for a commercial purpose, as well as the 
discussion on the timeframe and effective date for implementation 
mechanisms to comply with these requirements.
    12. Opt-Out Requirement. The Commission also requires callers to 
allow recipients of artificial and prerecorded voice message calls made 
pursuant to the exemption for commercial calls to opt out of such calls 
using either of the mechanisms described in the Commission's rules. The 
Commission incorporates by reference the analysis relating to the 
adoption of an opt-out mechanism for non-commercial calls to 
residential telephone numbers.
3. Tax-Exempt Nonprofit Organization Calls to a Residence
    13. Callers. The Commission has exempted calls made by or on behalf 
of a tax-exempt nonprofit organization from the prohibition on using an 
artificial or prerecorded voice to deliver a message to a residential 
telephone line. The Commission agrees that this exemption remains in 
the public interest and should be retained subject to conformance with 
the requirements of the TRACED Act.
    14. Called parties. The Commission concludes that the exemption for 
tax-exempt nonprofit organizations already satisfies the TRACED Act's 
requirements with respect to the ``classes of parties that may be 
called'' because this exemption applies only to calls made to 
residential telephone lines.
    15. Number of calls. The Commission limits the number of calls that 
can be made pursuant to the exemption for calls by tax-exempt nonprofit 
organizations to three artificial or prerecorded voice calls within any 
consecutive 30-day period. The Commission incorporates by reference the 
discussion relating to the number of calls that can be made pursuant to 
the exemption for calls not made for a commercial purpose, as well as 
the discussion on the timeframe and effective date for implementing 
mechanisms to comply with these requirements.
    16. Opt-Out Requirement. The Commission also requires callers to 
allow recipients of artificial and prerecorded voice message calls made 
pursuant to the exemption for tax-exempt nonprofit organizations to opt 
out of such calls using either of the mechanisms described in the 
Commission's rules. The Commission incorporates by reference the 
analysis relating to the adoption of an opt-out mechanism for non-
commercial calls to residential telephone numbers.
4. HIPAA Calls to a Residence
    17. Callers. The Commission has exempted HIPAA-related calls that 
deliver a healthcare message from the prohibition on using an 
artificial or prerecorded voice to deliver a message to residential 
telephone lines. The Commission concluded that such calls serve a 
public interest purpose: To ensure continued consumer access to 
healthcare-related information. The Commission finds that the record 
shows that the exemption continues to benefit consumers and should be 
retained subject to compliance with the requirements of the TRACED Act. 
The exemption satisfies the TRACED Act's requirements with respect to 
the ``classes of parties that may make'' such calls (calls ``made by, 
or on behalf of, a `covered entity' or its `business associate' as 
those terms are defined in the HIPAA Privacy Rule, 45 CFR 160.103'').
    18. Called parties. The Commission also concludes that the 
exemption for HIPAA-related calls satisfies the TRACED Act's 
requirements with respect to the ``classes of parties that may be 
called'' because this exemption applies only to calls made to 
residential telephone lines.
    19. Number of calls. The Commission amends its rules to limit the 
number of calls that can be made pursuant to the exemption for HIPAA-
related calls to one artificial or prerecorded voice call per day up to 
a maximum of three artificial or prerecorded voice calls per week. The 
Commission notes that this limitation is identical to the condition 
imposed on healthcare calls to wireless numbers that are exempted under 
section 227(b)(2)(C) of the TCPA.
    20. The Commission imposed this same limit on exempted HIPAA calls 
to wireless telephone numbers five years ago and has no credible 
evidence it has unduly restricted healthcare providers' ability to 
communicate with their patients. The Commission incorporates by 
reference the discussion relating to the number of calls that can be 
made pursuant to the exemption for calls not made for a commercial 
purpose, as well

[[Page 11445]]

as the discussion on the timeframe and effective date for implementing 
mechanisms to comply with these requirements.
    21. Opt-Out Requirement. The Commission also requires callers to 
allow recipients of artificial and prerecorded voice message calls made 
pursuant to the HIPAA exemption to opt out of such calls using either 
of the opt-out mechanisms described in the Commission's rules. The 
Commission incorporates by reference the analysis relating to the 
adoption of an opt-out mechanism for non-commercial calls to 
residential telephone numbers.
5. Implementation and Effective Date
    22. The Commission recognizes that implementation of the numerical 
limits and opt-out requirements may present some burdens to callers and 
therefore establishes a six-month period to do so before the new 
requirements take effect.
    23. The technology needed for compliance with the Commission's opt-
out requirements is commonplace and easily accessible; the Commission's 
rules have required certain callers to utilize the available tools and 
equipment since 2012. Therefore, based on a review of the record and 
these considerations, the appropriate time for implementation of these 
amended rules is six months. The requirements that callers comply with 
a three-call limit within any consecutive 30-day period, and the HIPAA 
exemption restriction of one call per day up to three calls per week, 
and opt-out requests from consumers implicate the PRA. Thus, the six-
month period before compliance is required will commence upon 
publication in the Federal Register of OMB approval of the rules.

C. Section 227(b)(2)(C) Exemptions

1. Package Delivery Calls to a Wireless Number
    24. The Commission has exempted package delivery calls to wireless 
consumers subject to several conditions. See Cargo Airline Association 
Petition for Expedited Declaratory Ruling, CG Docket No. 02-278, Order, 
published at 80 FR 15688, March 25, 2015. The record shows that the 
exemption continues to serve the public interest and that the 
conditions on such calls satisfy section 8 of the TRACED Act. As a 
result, the Commission concludes that no further action is required to 
bring this exemption into compliance with section 8 of the TRACED Act.
2. Financial Institution Calls to a Wireless Number
    25. The Commission has exempted calls made by financial 
institutions to wireless consumers subject to several conditions. See 
Rules and Regulations Implementing the Telephone Consumer Protection 
Act of 1991, CG Docket No. 02-278, WC Docket No. 07-135, Declaratory 
Ruling and Order, published at 80 FR 61129, October 9, 2015. The 
Commission noted that calls by financial institutions regarding 
fraudulent transactions, security data breaches, and identity theft are 
``intended to address exigent circumstances in which a quick, timely 
communication with a consumer could prevent considerable consumer 
harms.'' This exemption has been in place for five years, and the 
Commission finds that it remains in the public interest and that the 
conditions on such calls satisfy section 8 of the TRACED Act. As a 
result, the Commission concludes that no further action is required to 
bring this exemption into compliance with section 8 of the TRACED Act.
3. Healthcare Provider Calls to a Wireless Number
    26. The Commission has exempted certain healthcare provider calls 
to wireless consumers subject to several conditions. See Rules and 
Regulations Implementing the Telephone Consumer Protection Act of 1991, 
CG Docket No. 02-278, WC Docket No. 07-135, Declaratory Ruling and 
Order, published at 80 FR 61129, October 9, 2015. The Commission found 
that calls for which there is an exigency and that have a healthcare 
treatment purpose such as appointment and exam confirmations and 
reminders, wellness checkups, hospital pre-registration instructions, 
lab results, prescription notifications, and home healthcare 
instructions provide vital, time-sensitive information patients 
welcome, expect, and often rely on to make informed decisions. This 
exemption has been in place for five years, and the Commission finds 
that it remains in the public interest and that the conditions on such 
calls satisfy section 8 of the TRACED Act. The Commission concludes 
that no further action is required to bring this exemption into 
compliance with section 8 of the TRACED Act.
4. Inmate Calling Service Calls to a Wireless Number
    27. The Commission has exempted calls from inmate phone service 
providers subject to several conditions. See Rules and Regulations 
Implementing the Telephone Consumer Protection Act of 1991, CG Docket 
No. 02-278, WC Docket No. 07-135, Declaratory Ruling and Order, 
published at 80 FR 61129, October 9, 2015. The Commission found such 
calls to be beneficial, provided they do not include any telemarketing 
and are solely intended to arrange for the billing of a specific 
collect call that an inmate caller has already attempted to initiate. 
This exemption has been in place for five years, and the Commission 
finds that it remains in the public interest and that the conditions on 
such calls satisfy section 8 of the TRACED Act. As a result, the 
Commission concludes that no further action is required to bring this 
exemption into compliance with section 8 of the TRACED Act.

D. Additional Matters

    28. Several commenters request amendments to various TCPA 
exemptions for reasons that extend beyond the scope of section 8. To 
the extent that there are open proceedings on related subject matters, 
the Commission encourages these parties to direct their comments to 
those proceedings.

Final Regulatory Flexibility Analysis

    29. 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 (NPRM) in this 
docket, published at 85 FR 64091, October 9, 2020. The Commission 
sought written public comment on the proposals in the NPRM, including 
comment on the IRFA. The Final Regulatory Flexibility Analysis FRFA 
conforms to the RFA.

A. Need for, and Objectives of, the Report and Order

    30. In the Report and Order, the Commission takes action to 
implement section 8 of the TRACED Act, to ensure that any exemption 
adopted pursuant to sections 227(b)(2)(B) and (C) of the TCPA contains 
requirements for: (1) The classes of parties that may make such calls; 
(2) the classes of parties that may be called; and (3) the number of 
such calls that may be made to a particular called party.
    31. The TRACED Act requires the Commission, no later than December 
30, 2020, to ``prescribe such regulations or amend such existing 
regulations, as necessary to ensure that [any] such exemption [issued 
under sections 227(b)(2)(B) or (C) of the TCPA] contains each 
requirement [listed in section 8(a) of the TRACED Act].'' Section 8(b) 
of the TRACED Act provides that ``[t]o the extent such an exemption 
contains such a requirement before such date of enactment, nothing in 
this section or the amendments made by this section shall be construed 
to require the Commission

[[Page 11446]]

to prescribe or amend regulations relating to such requirement.''
    32. The Report and Order confirms that the conditions imposed by 
the Commission by order for exemptions under section 227(b)(2)(C) of 
the TCPA for calls to wireless numbers satisfy the TRACED Act's section 
8 requirements, and the only action necessary is to codify those 
exemptions in the rules. The Commission does not adopt additional rules 
or reporting and recordkeeping requirements in that context.
    33. With respect to the exemptions for artificial and prerecorded 
voice message calls to residential numbers, the Report and Order 
retains all existing exemptions and adopts certain conditions on such 
calls. Specifically, to satisfy the TRACED Act's requirement regarding 
``the number of such calls that a calling party may make to a 
particular called party,'' the Report and Order amends the Commission's 
rules to generally limit the number of exempted calls that can be made 
to a particular residential line to three calls within any consecutive 
30-day period. For HIPAA-related calls to a residence, however, the 
Commission amends the rules to limit the number of calls that can be 
made pursuant to this exemption to one artificial or prerecorded voice 
call per day up to a maximum of three artificial or prerecorded voice 
calls per week. The adopted rules also allow recipients of artificial 
and prerecorded voice message calls to residential numbers to opt out 
of future calls. Such residential subscribers may do so by dialing a 
telephone number (required to be provided in the prerecorded message) 
to register his or her do-not-call request in response to that call or 
by using an automated, interactive voice- and/or key press-activated 
opt-out mechanism to make a do-not-call request. Thus, the amended 
rules will bring these exemptions into line with the Commission's 
treatment of exempted calls to wireless numbers. To effectuate an opt-
out mechanism, callers must comply with the requirements of Sec.  
64.1200(b) and (d) of the Commission's existing rules, which govern the 
process for handling do-not-call requests.
    34. In so doing, the Report and Order implements the requirements 
of the TRACED Act and, at the same time, minimizes any compliance 
burdens for both small and large entities that make calls pursuant to 
one of the exemptions in the law.

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

    35. In the NPRM, the Commission solicited comments on how to 
minimize the economic impact of the new rules on small businesses. 
There were no comments filed that specifically addressed the rules and 
policies proposed in the IRFA. Three commenters, however, focused on 
the challenges certain entities would face in complying with the opt-
out requirements given their small staffs and limited resources. The 
Credit Union National Association (CUNA) argues that the opt-out 
proposals would impose significant burdens for many credit unions that 
do not engage in telemarketing, and thus would have had no reason to 
create and maintain do-not-call lists. CUNA states that nearly 40 
percent of all credit unions employ five or fewer full-time employees, 
approximately 25 percent have less than $10 million in assets, and over 
two-thirds have less than $100 million in assets. The Illinois Credit 
Union states that an opt-out requirement would be burdensome for 
smaller institutions which have limited staff and resources, and the 
Professional Association for Customer Engagement similarly states that 
many healthcare providers are smaller entities that do not have the 
financial resources to implement an automated do-not-call system with a 
toll-free number.

C. Response to Comments by the Chief Counsel for Advocacy of the Small 
Business Administration

    36. Pursuant to the Small Business Jobs Act of 2010, which amended 
the RFA, the Commission is required to respond to any comments filed by 
the Chief Counsel for Advocacy of the Small Business Administration, 
and to provide a detailed statement of any change made to the proposed 
rules as a result of those comments. The Chief Counsel did not file any 
comments in response to the proposed rules in this proceeding.

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

    37. The Report and Order does not adopt any additional conditions 
on calls made to wireless numbers pursuant to the exemptions adopted 
under section 227(b)(2)(C) of the TCPA, but instead concludes that the 
exemptions already meet the requirements of the TRACED Act. With 
respect to the exemptions for calls to residential numbers, the Report 
and Order adopts a numerical limit of three calls within a consecutive 
30-day period that an entity may make pursuant to three of the four 
exemptions. The one exception is for HIPAA-related calls to a residence 
where the Commission amends the rules to limit the number of calls that 
can be made pursuant to this exemption to one artificial or prerecorded 
voice call per day up to a maximum of three artificial or prerecorded 
voice calls per week. The Commission explained that this limitation is 
identical to the condition imposed on healthcare calls to wireless 
numbers that are exempted under section 227(b)(2)(C) of the TCPA.
    38. The Commission's ruling therefore satisfies the requirements of 
the TRACED Act while bringing the exemptions for calls made to 
residential telephone numbers in line with the treatment of exempted 
calls to wireless numbers. The adopted limitation will reduce the 
number of intrusive or unwanted robocalls consumers receive at their 
homes while still allowing legitimate businesses to provide services 
and information consumers want. The Report and Order also requires 
entities making artificial or prerecorded voice calls to residential 
numbers pursuant to any of the exemptions to honor opt-out requests 
from consumers who wish to avoid future calls. In such cases, a caller 
will need to have opt-out mechanisms in place to accept do-not-call 
requests and to record and track such opt-out requests in order to 
avoid making any additional calls to those consumers. If the caller 
makes a call using an artificial or prerecorded voice message, they 
must provide a telephone number in the message to allow a consumer to 
register his or her do-not-call request in response to that call. The 
Commission's existing rules also require that, in every case where an 
artificial or prerecorded voice telephone message includes or 
introduces an advertisement or constitutes telemarketing and is 
delivered to a residential telephone line, the caller must provide an 
automated, interactive voice and/or key press-activated opt-out 
mechanism for the called person to make a do-not-call request. Entities 
will have up to 30 days to honor a residential subscriber's do-not-call 
request and ensure that they no longer call such residential 
subscriber's telephone number. While these rules will necessitate that 
entities keep records associated with the number of calls they make to 
a particular called party and to track opt-out requests from consumers, 
entities are not required to routinely report these records to the 
Commission. These requirements will apply to both large and small 
entities alike that make calls to residential

[[Page 11447]]

consumers pursuant to one of the exemptions carved out from the 
Commission's rules.

E. Steps Taken To Minimize Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered

    39. The RFA requires an agency to describe any significant 
alternatives that it has considered in reaching its proposed 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 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 small 
entities.
    40. The Commission considered feedback in response to the NPRM in 
crafting the final order. The Commission evaluated the comments with 
the goal of removing regulatory roadblocks and giving industry the 
flexibility to continue to make calls pursuant to any exemption 
previously carved out by the Commission while still protecting the 
interests of consumers who do not want to receive unlimited calls from 
such entities and allowing consumers to opt out of future calls from 
such entities. For example, the Commission retained all existing 
exemptions for calls to residential numbers, concluding that such 
exemptions satisfy the TRACED Act's requirements regarding the classes 
of parties that may make such calls and the classes of parties that may 
be called. The Commission also considered the benefits to consumers of 
adopting a numerical limit on the number of calls made to them and 
weighed those benefits against the costs to entities to ensure they 
make no more than three calls per 30-day period to each residential 
number and allow consumers to opt out of future calls. The Commission 
concluded that such conditions fulfilled the TRACED Act's directive 
that any exemption contain requirements with respect to the number of 
calls that may be made to any particular number. While entities that 
are exempted under the rules will need to keep internal records to 
ensure they do not call residential consumers more than three times 
within any consecutive 30-day period and avoid calling those consumers 
who have made a do-not-call request altogether, the Commission did not 
require that any records of compliance with these requirements be 
routinely reported to the Commission.
    41. In response to comments on the timing necessary for entities 
that currently take advantage of exemptions from the TCPA to implement 
any new limitations on such exemptions, the Report and Order delays 
implementation of the new three-call-per-30-day period (or three calls 
per week for HIPAA calls) and opt-out requirements for six months. 
Thus, the rules will not become effective until six months from the 
date of publication in the Federal Register of OMB approval of the 
information collection requirements associated with the new rules. This 
delay considers the potential compliance costs for small businesses 
that several commenters argued would result from the need to implement 
new procedures to comply with the do-not-call requirements. Small 
businesses may avoid any additional compliance costs entirely by 
declining to make such calls unless they first obtain prior express 
consent from consumers.

List of Subjects in 47 CFR Part 64

    Communications common carriers, Reporting and recordkeeping 
requirements, Telecommunications, Telephone.

Federal Communications Commission.
Marlene Dortch,
Secretary, Office of the Secretary.

Final Rules

    For the reasons discussed in the preamble, the Federal 
Communications Commission amends 47 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, 201, 202, 217, 218, 220, 222, 225, 
226, 227, 227b, 228, 251(a), 251(e), 254(k), 262, 403(b)(2)(B), (c), 
616, 620, 1401-1473, unless otherwise noted; Pub. L. 115-141, Div. 
P, sec. 503, 132 Stat. 348, 1091.

0
2. Amend Sec.  64.1200 by revising paragraph (a)(1)(iv) and adding 
paragraph (a)(9) 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) of this section 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. A person will 
not be liable for violating the prohibition in paragraph (a)(1)(iii) of 
this section when making calls exempted by paragraph (a)(9) of this 
section.
* * * * *
    (9) A person will not be liable for violating the prohibition in 
paragraph (a)(1)(iii) of this section for making any call exempted in 
this paragraph (a)(9), provided that the call is not charged to the 
called person or counted against the called person's plan limits on 
minutes or texts. As used in this paragraph (a)(9), the term ``call'' 
includes a text message, including a short message service (SMS) call.
    (i) Calls made by a package delivery company to notify a consumer 
about a package delivery, provided that all of the following conditions 
are met:
    (A) The notification must be sent only to the telephone number for 
the package recipient;
    (B) The notification must identify the name of the package delivery 
company and include contact information for the package delivery 
company;
    (C) The notification must not include any telemarketing, 
solicitation, or advertising content;
    (D) The voice call or text message notification must be concise, 
generally one minute or less in length for voice calls or 160 
characters or less in length for text messages;
    (E) The package delivery company shall send only one notification 
(whether by voice call or text message) per package, except that one 
additional notification may be sent for each attempt to deliver the 
package, up to two attempts, if the recipient's signature is required 
for the package and the recipient was not available to sign for the 
package on the previous delivery attempt;
    (F) The package delivery company must offer package recipients the 
ability to opt out of receiving future delivery notification calls and 
messages and must honor an opt-out request within a reasonable time 
from the date such request is made, not to exceed 30 days; and,
    (G) Each notification must include information on how to opt out of 
future delivery notifications; voice call notifications that could be 
answered by a live person must include an automated, interactive voice- 
and/or key press-activated opt-out mechanism that enables the called 
person to make an opt-out request prior to terminating the call; voice 
call notifications that could be answered by an answering machine

[[Page 11448]]

or voice mail service must include a toll-free number that the consumer 
can call to opt out of future package delivery notifications; text 
notifications must include the ability for the recipient to opt out by 
replying ``STOP.''
    (ii) Calls made by an inmate collect call service provider 
following an unsuccessful collect call to establish a billing 
arrangement with the called party to enable future collect calls, 
provided that all of the following conditions are met:
    (A) Notifications must identify the name of the inmate collect call 
service provider and include contact information;
    (B) Notifications must not include any telemarketing, solicitation, 
debt collection, or advertising content;
    (C) Notifications must be clear and concise, generally one minute 
or less;
    (D) Inmate collect call service providers shall send no more than 
three notifications following each inmate collect call that is 
unsuccessful due to the lack of an established billing arrangement, and 
shall not retain the called party's number after call completion or, in 
the alternative, after the third notification attempt; and
    (E) Each notification call must include information on how to opt 
out of future calls; voice calls that could be answered by a live 
person must include an automated, interactive voice- and/or key press-
activated opt-out mechanism that enables the called person to make an 
opt-out request prior to terminating the call; voice calls that could 
be answered by an answering machine or voice mail service must include 
a toll-free number that the consumer can call to opt out of future 
notification calls; and,
    (F) The inmate collect call service provider must honor opt-out 
requests immediately.
    (iii) Calls made by any financial institution as defined in section 
4(k) of the Bank Holding Company Act of 1956, 15 U.S.C. 6809(3)(A), 
provided that all of the following conditions are met:
    (A) Voice calls and text messages must be sent only to the wireless 
telephone number provided by the customer of the financial institution;
    (B) Voice calls and text messages must state the name and contact 
information of the financial institution (for voice calls, these 
disclosures must be made at the beginning of the call);
    (C) Voice calls and text messages are strictly limited to those for 
the following purposes: transactions and events that suggest a risk of 
fraud or identity theft; possible breaches of the security of 
customers' personal information; steps consumers can take to prevent or 
remedy harm caused by data security breaches; and actions needed to 
arrange for receipt of pending money transfers;
    (D) Voice calls and text messages must not include any 
telemarketing, cross-marketing, solicitation, debt collection, or 
advertising content;
    (E) Voice calls and text messages must be concise, generally one 
minute or less in length for voice calls (unless more time is needed to 
obtain customer responses or answer customer questions) or 160 
characters or less in length for text messages;
    (F) A financial institution may initiate no more than three 
messages (whether by voice call or text message) per event over a 
three-day period for an affected account;
    (G) A financial institution must offer recipients within each 
message an easy means to opt out of future such messages; voice calls 
that could be answered by a live person must include an automated, 
interactive voice- and/or key press-activated opt-out mechanism that 
enables the call recipient to make an opt-out request prior to 
terminating the call; voice calls that could be answered by an 
answering machine or voice mail service must include a toll-free number 
that the consumer can call to opt out of future calls; text messages 
must inform recipients of the ability to opt out by replying ``STOP,'' 
which will be the exclusive means by which consumers may opt out of 
such messages; and,
    (H) A financial institution must honor opt-out requests 
immediately.
    (iv) Calls made by, or on behalf of, healthcare providers, which 
include hospitals, emergency care centers, medical physician or service 
offices, poison control centers, and other healthcare professionals, 
provided that all of the following conditions are met:
    (A) Voice calls and text messages must be sent only to the wireless 
telephone number provided by the patient;
    (B) Voice calls and text messages must state the name and contact 
information of the healthcare provider (for voice calls, these 
disclosures would need to be made at the beginning of the call);
    (C) Voice calls and text messages are strictly limited to those for 
the following purposes: appointment and exam confirmations and 
reminders, wellness checkups, hospital pre-registration instructions, 
pre-operative instructions, lab results, post-discharge follow-up 
intended to prevent readmission, prescription notifications, and home 
healthcare instructions;
    (D) Voice calls and text messages must not include any 
telemarketing, solicitation, or advertising; may not include 
accounting, billing, debt-collection, or other financial content; and 
must comply with HIPAA privacy rules, 45 CFR 160.103;
    (E) Voice calls and text messages must be concise, generally one 
minute or less in length for voice calls or 160 characters or less in 
length for text messages;
    (F) A healthcare provider may initiate only one message (whether by 
voice call or text message) per day to each patient, up to a maximum of 
three voice calls or text messages combined per week to each patient;
    (G) A healthcare provider must offer recipients within each message 
an easy means to opt out of future such messages; voice calls that 
could be answered by a live person must include an automated, 
interactive voice- and/or key press-activated opt-out mechanism that 
enables the call recipient to make an opt-out request prior to 
terminating the call; voice calls that could be answered by an 
answering machine or voice mail service must include a toll-free number 
that the consumer can call to opt out of future healthcare calls; text 
messages must inform recipients of the ability to opt out by replying 
``STOP,'' which will be the exclusive means by which consumers may opt 
out of such messages; and,
    (H) A healthcare provider must honor opt-out requests immediately.
* * * * *

0
3. Delayed indefinitely, further amend Sec.  64.1200 by revising 
paragraphs (a)(3)(ii) through (v), (b)(2) and (3) and (d) to read as 
follows:


Sec.  64.1200   Delivery Restrictions.

    (a) * * *
    (3) * * *
    (ii) Is not made for a commercial purpose and the caller makes no 
more than three calls within any consecutive 30-day period to the 
residential line and honors the called party's request to opt out of 
future calls as required in paragraphs (b) and (d) of this section;
    (iii) Is made for a commercial purpose but does not include or 
introduce an advertisement or constitute telemarketing and the caller 
makes no more than three calls within any consecutive 30-day period to 
the residential line and honors the called party's request to opt out 
of future calls as required in paragraphs (b) and (d) of this section;
    (iv) Is made by or on behalf of a tax-exempt nonprofit organization 
and the caller makes no more than three calls within any consecutive 
30-day period to the residential line and honors the called party's 
request to opt out of future calls as required in paragraphs (b) and 
(d) of this section; or

[[Page 11449]]

    (v) Delivers a ``health care'' message made by, or on behalf of, a 
``covered entity'' or its ``business associate,'' as those terms are 
defined in the HIPAA Privacy Rule, 45 CFR 160.103, and the caller makes 
no more than one call per day to each patient's residential line, up to 
a maximum of three calls combined per week to each patient's 
residential line and honors the called party's request to opt out of 
future calls as required in paragraphs (b) and (d) of this section.
* * * * *
    (b) * * *
    (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 and messages made pursuant to an exemption 
under paragraphs (a)(3)(ii) through (v) of this section to residential 
telephone subscribers, such telephone number must permit any individual 
to make a do-not-call request during regular business hours; and
    (3) In every case where the artificial or prerecorded-voice 
telephone message is made pursuant to an exemption under paragraphs 
(a)(3)(ii) through (v) of this section or includes or introduces an 
advertisement or constitutes telemarketing and is delivered to a 
residential telephone line or any of the lines or telephone numbers 
described in paragraphs (a)(1)(i) through (iii) of this section, 
provide an automated, interactive voice- and/or key press-activated 
opt-out mechanism for the called person to make a do-not-call request, 
including brief explanatory instructions on how to use such mechanism, 
within two (2) seconds of providing the identification information 
required in paragraph (b)(1) of this section. When the called person 
elects to opt out using such mechanism, the mechanism must 
automatically record the called person's number to the caller's do-not-
call list and immediately terminate the call. When the artificial or 
prerecorded-voice telephone message is left on an answering machine or 
a voice mail service, such message must also provide a toll free number 
that enables the called person to call back at a later time and connect 
directly to the automated, interactive voice- and/or key press-
activated opt-out mechanism and automatically record the called 
person's number to the caller's do-not-call list.
* * * * *
    (d) No person or entity shall initiate any artificial or 
prerecorded-voice telephone call pursuant to an exemption under 
paragraphs (a)(3)(ii) through (v) of this section or 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 such calls made by or on behalf 
of that person or entity. The procedures instituted must meet the 
following minimum standards:
    (1) Written policy. Persons or entities making artificial or 
prerecorded-voice telephone calls pursuant to an exemption under 
paragraphs (a)(3)(ii) through (v) of this section or calls for 
telemarketing purposes must have a written policy, available upon 
demand, for maintaining a do-not-call list.
    (2) Training of personnel. Personnel engaged in making artificial 
or prerecorded-voice telephone calls pursuant to an exemption under 
paragraphs (a)(3)(ii) through (v) of this section or who are 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. If a person or 
entity making an artificial or prerecorded-voice telephone call 
pursuant to an exemption under paragraphs (a)(3)(ii) through (v) of 
this section or any 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 such calls (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 30 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 call is made, the person or entity 
on whose behalf the call is made will be liable for any failures to 
honor the do-not-call request. A person or entity making an artificial 
or prerecorded-voice telephone call pursuant to an exemption under 
paragraphs (a)(3)(ii) through (v) of this section or any 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 call is 
made or an affiliated entity.
    (4) Identification of callers and telemarketers. A person or entity 
making an artificial or prerecorded-voice telephone call pursuant to an 
exemption under paragraphs (a)(3)(ii) through (v) of this section or 
any 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. 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 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 (for 
telemarketing calls) the product being advertised.
    (6) Maintenance of do-not-call lists. A person or entity making 
artificial or prerecorded-voice telephone calls pursuant to an 
exemption under paragraphs (a)(3)(ii) through (v) of this section or 
any call for telemarketing purposes must maintain a record of a 
consumer's request not to receive further calls. A do-not-call request 
must be honored for 5 years from the time the request is made.
* * * * *
[FR Doc. 2021-01190 Filed 2-24-21; 8:45 am]
BILLING CODE 6712-01-P


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