Federal Register / Vol. 73, No. 22 / Friday, February 1, 2008 / Rules and Regulations 6041 

order the entry ‘‘Ohio’’ under 

paragraphs 1. and 2. to read as follows: 

Appendix A to Subpart II of Part 97—

States With Approved State 

Implementation Plan Revisions 

Concerning CAIR NOX Opt-In Units 

1. * * * 

Ohio 

* * * * * 

2. * * * 

Ohio 

* * * * * 

■ 6. Appendix A to subpart III of part 97 

is amended by adding in alphabetical 

order the entry ‘‘Ohio’’ under 

paragraphs 1. and 2. to read as follows: 

Appendix A to Subpart III of Part 97—

States With Approved State 

Implementation Plan Revisions 

Concerning CAIR SO2 Opt-In Units 

1. * * * 

Ohio 

* * * * * 

2. * * * 

Ohio 

* * * * * 

■ 7. Appendix A to subpart EEEE of part 

97 is amended by adding in alphabetical 

order the entry ‘‘Ohio’’ to read as 

follows: 

Appendix A to Subpart EEEE of Part 

97—States With Approved State 

Implementation Plan Revisions 

Concerning Allocations 

* * * * * 

Ohio 

* * * * * 

■ 8. Appendix A to subpart IV of part 

97 is amended by adding in alphabetical 

order the entry ‘‘Ohio’’ under 

paragraphs 1. and 2. to read as follows: 

Appendix A to Subpart IV of Part 97—

States With Approved State 

Implementation Plan Revisions 

Concerning CAIR NOX Ozone Season 

Opt-In Units 

1. * * * 

Ohio 

2. * * * 

Ohio 

* * * * * 

[FR Doc. E8–1804 Filed 1–31–08; 8:45 am] 

BILLING CODE 6560–50–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 64 

[CG Docket No. 02–278; FCC 07–232] 

Rules and Regulations Implementing 

the Telephone Consumer Protection 

Act of 1991 

AGENCY: Federal Communications 

Commission. 

ACTION: Clarification. 

SUMMARY: In this document, the 

Commission addresses a Petition for 

Expedited Clarification and Declaratory 

Ruling filed by ACA International 

(ACA). Specifically, the Commission 

clarifies that autodialed and 

prerecorded message calls to wireless 

numbers that are provided by the called 

party to a creditor in connection with an 

existing debt are permissible as calls 

made with the ‘‘prior express consent’’

of the called party. 

DATES: Effective February 1, 2008. 

ADDRESSES: Federal Communications 

Commission, 445 12th Street, SW., 

Washington, DC 20554. 

FOR FURTHER INFORMATION CONTACT: 

Erica McMahon, Consumer & 

Governmental Affairs Bureau at (202) 

418–0346 (voice), or e-mail 

Erica.McMahon@fcc.gov. 

SUPPLEMENTARY INFORMATION: On 

October 4, 2005, ACA filed a petition for 

expedited clarification and declaratory 

ruling against the Commission’s Rules 

and Regulations Implementing the 

Telephone Consumer Protection Act of 

1991, Report and Order, FCC 03–153, 

published at 68 FR 44144 (July 25, 

2003). This is a summary of the 

Commission’s document, FCC 07–232, 

adopted December 28, 2007, released 

January 4, 2008, addressing a Petition 

for Expedited Clarification and 

Declaratory Ruling filed by ACA 

International (ACA). 

Copies of document FCC 07–232 and 

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, 445 12th 

Street, SW., Room CY–A257, 

Washington, DC 20554. Document FCC 

07–232 and any subsequently filed 

documents in this matter may also be 

purchased from the Commission’s 

duplicating contractor at Portals II, 445 

12th Street, SW., Room CY–B402, 

Washington, DC 20554. Customers may 

contact the Commission’s duplicating 

contractor at their Web site: 

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 

fcc504@fcc.gov or call the Consumer & 

Governmental Affairs Bureau at (202) 

418–0530 (voice) or (202) 418–0432 

(TTY). Document FCC 07–232 can also 

be downloaded in Word and Portable 

Document Format (PDF) at: http:// 

www.fcc.gov/cgb/policy. 

Paperwork Reduction Act of 1995 

Analysis 

Document FCC 07–232 does not 

contain new information collection 

requirements subject to the Paperwork 

Reduction Act of 1995 (PRA), Public 

Law 104–13. In addition, it does not 

contain any new or modified 

‘‘information collection burden for 

small business concerns with fewer than 

25 employees,’’ pursuant to the Small 

Business Paperwork Relief Act of 2002, 

Public Law 107–198. See 47 U.S.C. 

3506(c)(4). 

Synopsis 

On October 4, 2005, ACA filed a 

petition seeking clarification that the 

prohibition against autodialed or 

prerecorded calls to wireless telephone 

numbers in 47 CFR 64.1200(a)(1)(iii) of 

the Commission’s rules does not apply 

to creditors and collectors when calling 

wireless telephone numbers to recover 

payments for goods and services 

received by consumers. 

Although the TCPA generally 

prohibits autodialed calls to wireless 

phones, it also provides an exception for 

autodialed and prerecorded message 

calls for emergency purposes or made 

with the prior express consent of the 

called party. Because the Commission 

finds that autodialed and prerecorded 

message calls to wireless numbers 

provided by the called party in 

connection with an existing debt are 

made with the ‘‘prior express consent’’

of the called party, the Commission 

clarifies that such calls are permissible. 

The Commission concludes that the 

provision of a cell phone number to a 

creditor, e.g., as part of a credit 

application, reasonably evidences prior 

express consent by the cell phone 

subscriber to be contacted at that 

number regarding the debt. In the 1992 

TCPA Order (FCC 92–443) published at 

57 FR 48333 (October 23, 1992), the 

Commission determined that ‘‘persons 

who knowingly release their phone 

numbers have in effect given their 

invitation or permission to be called at 

the number which they have given, 

absent instructions to the contrary.’’ The 

legislative history in the TCPA provides 

support for this interpretation. 

Specifically, the House report on what 


pwalker on PROD1PC71 with PROPOSALS
6042 Federal Register / Vol. 73, No. 22 / Friday, February 1, 2008 / Rules and Regulations 

ultimately became section 227 of the 

Communications Act states that: ‘‘[t]he 

restriction on calls to emergency lines, 

pagers, and the like does not apply 

when the called party has provided the 

telephone number of such a line to the 

caller for use in normal business 

communications.’’

The Commission emphasizes that 

prior express consent is deemed to be 

granted only if the wireless number was 

provided by the consumer to the 

creditor, and that such number was 

provided during the transaction that 

resulted in the debt owed. To ensure 

that creditors and debt collectors call 

only those consumers who have 

consented to receive autodialed and 

prerecorded message calls, the 

Commission concludes that the creditor 

should be responsible for demonstrating 

that the consumer provided prior 

express consent. The creditors are in the 

best position to have records kept in the 

usual course of business showing such 

consent, such as purchase agreements, 

sales slips, and credit applications. The 

Commission encourages creditors to 

include language on credit applications 

and other documents informing the 

consumer that, by providing a wireless 

telephone number, the consumer 

consents to receiving autodialed and 

prerecorded message calls from the 

creditor or its third party debt collector 

at that number. Should a question arise 

as to whether express consent was 

provided, the burden will be on the 

creditor to show it obtained the 

necessary prior express consent. 

Similarly, a creditor on whose behalf an 

autodialed or prerecorded message call 

is made to a wireless number bears the 

responsibility for any violation of the 

Commission’s rules. Calls placed by a 

third party collector on behalf of that 

creditor are treated as if the creditor 

itself placed the call. A third party 

collector may also be liable for a 

violation of the Commission’s rules. In 

addition, prior express consent 

provided to a particular creditor will not 

entitle that creditor (or third party 

collector) to call a consumer’s wireless 

number on behalf of other creditors, 

including on behalf of affiliated entities. 

The Commission also reiterates that 

the plain language of section 

227(b)(1)(A)(iii) of the Communications 

Act prohibits the use of autodialers to 

make any call to a wireless number in 

the absence of an emergency or the prior 

express consent of the called party. The 

Commission notes that this prohibition 

applies regardless of the content of the 

call, and is not limited only to calls that 

constitute ‘‘telephone solicitations.’’

However, the Commission agrees with 

ACA and other commenters that calls 

solely for the purpose of debt collection 

are not telephone solicitations and do 

not constitute telemarketing. Therefore, 

calls regarding debt collection or to 

recover payments are not subject to the 

TCPA’s separate restrictions on 

‘‘telephone solicitations.’’

In document FCC 07–232, the 

Commission affirms that a predictive 

dialer constitutes an automatic 

telephone dialing system and is subject 

to the TCPA’s restrictions on the use of 

autodialers. In its Supplemental 

Submission, ACA argues that the 

Commission erred in concluding that 

the term ‘‘automatic telephone dialing 

system’’ includes a predictive dialer. 

ACA states that debt collectors use 

predictive dialers to call specific 

numbers provided by established 

customers, and that a predictive dialer 

meets the definition of autodialer only 

when it randomly or sequentially 

generates telephone numbers, not when 

it dials numbers from customer 

telephone lists. 

As noted above, the Commission first 

sought comment on predictive dialers in 

2002 and asked whether using a 

predictive dialer is subject to the 

TCPA’s autodialer restrictions. The 

Commission found that, based on the 

statutory definition of ‘‘automatic 

telephone dialing system,’’ the TCPA’s 

legislative history, and current industry 

practice and technology, a predictive 

dialer falls within the meaning and 

definition of autodialer and the intent of 

Congress. The Commission noted that 

the evolution of the teleservices 

industry had progressed to the point 

where dialing lists of numbers was far 

more cost effective, but that the basic 

function of such dialing equipment, had 

not changed—the capacity to dial 

numbers without human intervention. 

The Commission noted that it expected 

such automated dialing technology to 

continue to develop and that Congress 

had clearly anticipated that the FCC 

might need to consider changes in 

technology. 

Moreover, the Commission noted that 

the TCPA does not ban the use of 

automated dialing technology. It merely 

prohibits such technologies from dialing 

emergency numbers, health care 

facilities, telephone numbers assigned 

to wireless services, and any other 

numbers for which the consumer is 

charged for the call. Such practices were 

determined by Congress to threaten 

public safety and inappropriately shift 

costs to consumers. Most importantly, 

the Commission said that, to find that 

calls to emergency numbers, health care 

facilities, and wireless numbers are 

permissible when the dialing equipment 

is paired with predictive dialing 

software and a database of numbers, but 

prohibited when the equipment 

operates independently of such lists, 

would be inconsistent with the avowed 

purpose of the TCPA and the intent of 

Congress in protecting consumers from 

such calls. ACA raises no new 

information about predictive dialers that 

warrants reconsideration of these 

findings. With this ruling, however, 

creditors and debt collectors may use 

predictive dialers to call wireless 

phones, provided the wireless phone 

number was provided by the subscriber 

in connection with the existing debt. 

The Commission notes, however, that 

where the subscriber has not made the 

number available to the creditor 

regarding the debt, we expect debt 

collectors to be able to utilize the same 

methods and resources that 

telemarketers have found adequate to 

determine which numbers are assigned 

to wireless carriers, and to comply with 

the TCPA’s prohibition on telephone 

calls using an autodialer or an artificial 

or prerecorded voice message to 

wireless numbers. 

Congressional Review Act 

The Commission will not send a copy 

of document FCC 07–232 pursuant to 

the Congressional Review Act, see 5 

U.S.C. 801(a)(1)(A), because no new 

rules were adopted in the document. 

Ordering Clauses 

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 § 64.1200 of the 

Commission’s rules, 47 CFR 64.1200, 

document FCC 07–232 is adopted. 

By Commission authority, the Request 

for Clarification filed by ACA 

International in CG Docket 02–278 on 

October 4, 2005 and supplemented by 

ACA on April 26, 2006, is granted 

insofar as ACA seeks clarification that 

autodialed and prerecorded message 

calls to wireless numbers that are 

provided by the called party to a 

creditor in connection with an existing 

debt are permissible as calls made with 

the ‘‘prior express consent’’ of the called 

party, and in all other respects, is 

denied. 

Federal Communications Commission. 

Marlene H. Dortch, 

Secretary. 

[FR Doc. E8–1891 Filed 1–31–08; 8:45 am] 

BILLING CODE 6712–01–P 


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