[Federal Register: August 25, 2003 (Volume 68, Number 164)]
[Rules and Regulations]
[Page 50978-50980]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25au03-6]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 64
[CG Docket No. 02-278, FCC 03-208]
Rules and Regulations Implementing the Telephone Consumer
Protection Act of 1991.
AGENCY: Federal Communications Commission.
ACTION: Final rule; establishment of effective date.
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SUMMARY: We recently revised the current Telephone Consumer Protection
Act of 1991 (TCPA) rules, and adopted new rules modifying the Federal
Communications Commission's (Commission's) unsolicited facsimile
advertising requirements. This document establishes an effective date
of January 1, 2005 for one provision of those rules. We have also
modified the effective date of our determination that an established
business relationship will no longer be sufficient to show that an
individual or business has given express permission to receive
unsolicited facsimile advertisements and the rule provision requiring
that the sender of a facsimile advertisement first obtain the
recipient's express permission in writing. The effective date of our
amended definition of an ``established business relationship'' is not
affected by our determination here.
DATES: Section 64.1200(a)(3)(i) published at 68 FR 44144, July 25,
2003, is effective January 1, 2005.
ADDRESSES: Federal Communications Commission, 445 12th Street SW.,
Washington, DC 20554.
FOR FURTHER INFORMATION CONTACT: Erica H. McMahon or Richard D. Smith
at 202-418-2512, Consumer & Governmental Affairs Bureau, Federal
Communications Commission.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order
on Reconsideration in CG Docket No. 02-278, FCC 03-208, adopted on
August 18, 2003 and released August 18, 2003. The full text of this
document is available at the Commission's Web site http://www.fcc.gov
on the Electronic Comment Filing System and for public inspection and
copying during regular business hours in the FCC Reference Center, Room
CY-A257, 445 12th Street, SW., Washington, DC 20554. The complete text
may be purchased from the Commission's copy contractor, Qualex
International, 445 12th Street, SW., Room CY-B402, Washington, DC
20554. To request materials in accessible formats for people with
disabilities (braille, large print, electronic files, audio format),
send an email to fcc504@fcc.gov or call the Consumer & Governmental
Affairs Bureau at (202) 418-0531 (voice) or (202) 418-7365 (tty). This
Order on Reconsideration can also be downloaded in Text or ASCII
formats at http://www.fcc.gov/cgb.
Synopsis
On July 3, 2003, the Commission released a Report and Order
revising many of its telemarketing and facsimile advertising rules
pursuant to the TCPA. See 68 FR 44144, July 25, 2003. Pursuant to
Section 1.108 of the Commission's rules, 47 CFR 1.108, on our own
motion, we issue this limited reconsideration of the Report and Order
and extend, until January 1, 2005, the effective date of our
determination that an established business relationship will no longer
be sufficient to show that an individual or business has given express
permission to receive unsolicited facsimile advertisements. We also
establish January 1, 2005 as the effective date of amended rule 47 CFR
64.1200(a)(3)(i), which provides that ``a facsimile advertisement is
not ``unsolicited'' if the recipient has granted the sender prior
express invitation or permission to deliver the advertisement, as
evidenced by a signed, written statement that includes the facsimile
number to which any advertisements may be sent and clearly indicates
the recipient's consent to receive such facsimile advertisements from
the sender.''
In the Report and Order, the Commission reversed its prior
conclusion that an established business relationship provides companies
with the necessary express permission to send faxes to their customers.
The Commission determined that the established business relationship
would no longer be sufficient to show that an individual or business
has given express permission to receive unsolicited facsimile
advertisements. Instead, the Commission concluded that the
[[Page 50979]]
recipient's express invitation or permission must be in writing and
include the recipient's signature. The recipient must clearly indicate
that he or she consents to receiving such faxed advertisements from the
company to which permission is given, and must provide the individual's
or business's fax number to which faxes may be sent.
On July 25, 2003, the American Society of Association Executives
(ASAE) filed a petition for emergency clarification of the rules
governing unsolicited facsimile advertisements as they apply to tax-
exempt nonprofit organizations. This petition asked the Commission to
issue a clarification that unsolicited facsimile communications are not
prohibited when issued by tax-exempt nonprofit purposes. In addition,
ASAE filed a petition for stay of the unsolicited facsimile rules as
they apply to tax-exempt nonprofits in the event the Commission is
unable to clarify the rules prior to their effective date. Many of
ASAE's members and other organizations have filed comments in support
of ASAE's petitions. The National Association of Realtors (NAR) also
filed, on August 1, 2003, a Request for Emergency Stay of all of the
facsimile advertisement rules, asking the Commission to grant a one-
year stay of the recently adopted rules ``to permit NAR and its members
sufficient time to review and comply with the Commission's new,
unanticipated, and unprecedented, unsolicited fax rules.'' A Request
for Stay of the amended rules concerning unsolicited facsimile
advertising as they apply to the publishers of Requester Publications,
along with a Request for Expedited Clarification of the unsolicited
facsimile rules, were filed by Proximity Marketing on August 6, 2003.
In addition, on August 8, 2003, a Request for Stay of the amended rules
concerning unsolicited facsimile advertising as they apply to political
action committees was filed by the National Association of Business
Political Action Committees. The Chamber of Commerce of the United
States, the Community Association Institute, the National Association
of Manufacturers, the National Association of Wholesaler-Distributors,
the National Restaurant Association, and the National Federation of
Independent Business (Chamber of Commerce of the United States, et al.)
filed, on August 8, 2003, a Request for Stay of the amended rules that
apply to unsolicited commercial faxes. The American Society of Travel
Agents, Mortgage Bankers Association of America, National Association
of Mortgage Brokers, Consumer Mortgage Coalition, and the Midwest
Circulation Association (collectively, the Business Users Coalition)
also submitted a Petition for Emergency Stay of at least six (6) months
of the rules regarding unsolicited facsimile advertisements. A Petition
for Stay of the rules governing the nature of ``express permission''
required to send advertisements by fax was filed by American Business
Media. A Petition for Emergency Stay & Clarification of the amended
rules governing unsolicited facsimile advertisements as they apply to
tax-exempt nonprofit organizations was submitted by the Air
Conditioning Contractors of America. A Request for Stay of those rules
governing unsolicited fax advertising was filed by the American
Dietetic Association. Reed Elsevier Inc. submitted a Motion for Stay of
the effective date of the amended fax consent rule at 64.1200(a)(3)(i).
The Newspaper Association of America and the National Newspaper
Association filed a Petition for Stay of the Commission's amended rules
on unsolicited facsimile advertisements.
The American Teleservices Association (ATA) also submitted on July
25, 2003 a Request for Expedited Stay of the Commission's revisions to
the rules implementing the TCPA. The ATA requests that the Commission
stay the revisions to the rules implementing the TCPA, pending a final
decision on judicial review of the new rules. ATA's petition relates
primarily to the new telephone solicitation rules, including the
national do-not-call registry.
We now, on our own motion, issue this limited reconsideration of
the effective date of our determination that an established business
relationship will no longer be sufficient to show that an individual or
business has given express permission to receive unsolicited facsimile
advertisements, as well as the amended unsolicited facsimile provisions
at 47 CFR 64.1200(a)(3)(i). Section 64.1200(a)(3)(i), as amended,
requires the sender of a facsimile advertisement to first obtain from
the recipient a signed, written statement that includes the facsimile
number to which any advertisements may be sent and clearly indicates
the recipient's consent to receive such facsimile advertisements from
the sender. The comments filed after the release of the Report and
Order indicate that many organizations may need additional time to
secure this written permission from individuals and businesses to whom
they fax advertisements. We believe that, in light of this new
information, the public interest would best be served by allowing
senders of such advertisements additional time to obtain such express
permission before the new rules become effective. In addition, this
effective date will allow the Commission the opportunity to consider
any petitions for reconsideration and other filings that may be made on
this issue. We retain the discretion to extend the effective date
should circumstances warrant such an action. We emphasize that our
existing TCPA rules prohibiting the transmission of unsolicited
advertisements to a telephone facsimile machine will remain in effect
during the pendancy of this extension. Under these rules, those
transmitting facsimile advertisements must have an established business
relationship or prior express permission from the facsimile recipient
to comply with our rules. In addition, the effective date of the other
amended facsimile rules remains unchanged by this Order on
Reconsideration. See 47 CFR 68.318(d) (amending the rules to require
any fax broadcaster that demonstrates a high degree of involvement in
the transmission of messages to be identified on the facsimile, along
with the identification of the sender).
We emphasize that the only effective date of the Commission's
Report and Order established by this Order on Reconsideration is the
requirement that the sender of a facsimile advertisement first obtain
the recipient's express permission in writing. In addition, as of
January 1, 2005, an established business relationship will no longer be
sufficient to show that an individual or business has given express
permission to receive unsolicited facsimile advertisements. Therefore,
until the amended rule at 47 CFR 64.1200(a)(3)(i) becomes effective on
January 1, 2005, an established business relationship will continue to
be sufficient to show that an individual or business has given express
permission to receive facsimile advertisements. The effective date of
our amended definition of an ``established business relationship'' is
not affected by our determination here.
We have considered and rejected ATA's request to stay the revisions
to the rules implementing the TCPA to the extent that such request
extends beyond the fax rules discussed above. Although the Commission
has declined to adopt a single standard for requests for injunctive
relief, we generally consider four criteria: (1) The likelihood of
success on the merits, (2) the threat of irreparable harm absent grant
of preliminary relief, (3) the degree of injury to other parties if
relief is granted, and (4) that a stay will be in the public interest.
See Virginia Petroleum Jobbers Ass'n v. Federal Power Commission, 259
[[Page 50980]]
F.2d 921 (D.C. Cir. 1958). We conclude that ATA's request does not
satisfy the factors governing the issuance of a stay.
The actions contained herein have not changed our Final Regulatory
Flexibility Analysis (FRFA), which is set forth in the Report and
Order. Thus, no supplemental FRFA is necessary. In addition, the action
contained herein imposes no new or modified reporting and/or
recordkeeping requirements or burdens on the public.
Ordering Clauses
1. Accordingly, pursuant to sections 1-4, 222, 227, and 303(r) of
the Communications Act of 1934, as amended, 47 U.S.C. 151-154, 222 and
227; and section 1.108 of the Commission's Rules, 47 CFR 1.108, of the
Commission's Rules, this Order on Reconsideration in CG Docket No. 02-
278 is adopted and the Report and Order, FCC 03-153, is modified as set
forth herein.
2. Subject to the effective dates set forth above, the National
Association of Realtors' Request for Emergency Stay is dismissed
without prejudice.
3. Subject to the effective dates set forth above, the American
Society of Association Executives' Petition for Stay is dismissed
without prejudice.
4. Subject to the effective dates set forth above, Proximity
Marketing Request for Stay is dismissed without prejudice.
5. Subject to the effective dates set forth above, the National
Association of Business Political Action Committees' Request for Stay
is dismissed without prejudice.
6. Subject to the effective dates set forth above, the Chamber of
Commerce of the United States et al. Request for Stay is dismissed
without prejudice.
7. Subject to the effective dates set forth above, the Business
Users Coalition's Petition for Emergency Stay is dismissed without
prejudice.
8. Subject to the effective dates set forth above, the American
Business Media's Petition for Stay is dismissed without prejudice.
9. Subject to the effective dates set forth above, the Air
Conditioning Contractors of America's Petition for Emergency Stay is
dismissed without prejudice.
10. Subject to the effective dates set forth above, the American
Dietetic Association's Request for Stay of the Implementation of
Regulations is dismissed without prejudice.
11. Subject to the effective dates set forth above, Reed Elsevier
Inc.''s Motion for Stay is dismissed without prejudice.
12. Subject to the effective dates set forth above, the Newspaper
Association of America and the National Newspaper Association's
Petition for Stay is dismissed without prejudice.
13. The American Teleservices Association Request for Expedited
Stay is dismissed without prejudice to the extent it seeks a stay of
the rules affected by the effective dates set forth above, but is
otherwise denied.
14. The effective date for the Commission's determination that an
established business relationship will no longer be sufficient to show
that an individual or business has given express permission to receive
unsolicited facsimile advertisements and the requirement that the
sender of a facsimile advertisement first obtain the recipient's
express permission in writing, as codified at 47 CFR 64.1200(a)(3)(i),
IS January 1, 2005, and that this Order on Reconsideration is effective
upon publication in the Federal Register. In light of the need to allow
affected entities time to comply with the new faxing rules, we find
good cause, pursuant to 5 U.S.C. 553(d), to make this effective on less
than 30 days' notice.
List of Subjects
47 CFR Part 64
Telephone.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 03-21644 Filed 8-22-03; 8:45 am]
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