[Federal Register: June 15, 2005 (Volume 70, Number 114)]
[Proposed Rules]
[Page 34725-34726]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15jn05-29]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 64
[CG Docket No. 02-278; DA 05-1348]
Rules and Regulations Implementing the Telephone Consumer
Protection Act of 1991
AGENCY: Federal Communications Commission.
ACTION: Proposed rule; petition for declaratory ruling, comments
requested.
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SUMMARY: In this document, the Commission seeks comment on a petition
for declaratory ruling (``Petition'') filed by Mark Boling, asking the
Commission to declare that particular provisions of the California
Consumer Legal Remedies Act (``CLRA''), as applied to interstate
telephone calls, are not preempted by the Telephone Consumer Protection
Act (``TCPA'').
DATES: Comments are due on or before July 15, 2005, and reply comments
are due on or before August 4, 2005.
ADDRESSES: You may submit comments, identified by CG DOCKET NO. 02-278,
DA 05-1348, by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Federal Communications Commission's Web Site: http://www.fcc.gov/cgb/ecfs/.
Follow the instructions for submitting comments.
People with Disabilities: Contact the FCC to request
reasonable accommodations (accessible format documents, sign language
interpreters, CART, etc.) by e-mail: FCC504@fcc.gov or phone: (202)
418-0530 or TTY: (202) 418-0432.
For detailed instructions for submitting comments and additional
information on the rulemaking process, see the SUPPLEMENTARY
INFORMATION section of this document.
FOR FURTHER INFORMATION CONTACT: Kelli Farmer, Consumer Policy
Division, Consumer & Governmental Affairs Bureau, (202) 418-2512
(voice), Kelli.Farmer@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's
document, DA 05-1348, released May 13, 2005. The full text of this
document and 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, 445
12th Street, SW., Room CY-A257, Washington, DC 20554, (202) 418-0270.
This document may be purchased from the Commission's duplicating
contractor, Best Copy and Printing (BCPI), Inc., Portals II, 445 12th
Street, SW., Room CY-B402, Washington, DC 20554. Customers may contact
BCPI, Inc. at their Web site: http://www.bcpiweb.com or by calling 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). This
document can also be downloaded in Word or Portable Document Format
(PDF) at http://www.fcc.gov/cgb/policy.
On July 3, 2003, the Commission released a Report and Order (2003
TCPA Order) revising its rules under the TCPA, published at 68 FR
44144, July 25, 2003. In the 2003 TCPA Order, the Commission determined
that it would consider any alleged conflicts between State and Federal
requirements and the need for preemption on a case-by-case basis.
Accordingly, the Commission instructed any party that believes a State
law is inconsistent with Sec. 227 or the Commission's rules to seek a
declaratory ruling from the Commission. Mr. Boling's Petition seeks
such a declaratory ruling. When filing comments, please reference CG
Docket No. 02-278, DA 05-1348. Comments
[[Page 34726]]
may be filed using the Commission's Electronic Comment Filing System
(ECFS) or by filing paper copies. See Electronic Filing of Documents in
Rulemaking Proceedings, 63 FR 24121, May 1, 1998. Comments filed
through the ECFS can be sent as an electronic file via the Internet to
http://www.fcc.gov/e-file/ecfs.html. Generally, only one copy of an
electronic submission must be filed. In completing the transmittal
screen, commenters should include their full name, U.S. Postal Service
mailing address, and the applicable docket or rulemaking number.
Parties may also submit an electronic comment by Internet e-mail. To
get filing instructions for e-mail comments, commenters should send e-
mail to ecfs@fcc.gov, and should include the following words in the
body of the message, ``get form .'' A sample form
and directions will be sent in reply.
Parties who choose to file by paper must send an original and four
(4) copies of each filing. Filings can be sent by hand or messenger
delivery, by electronic media, by commercial overnight courier, or by
first-class or overnight U.S. Postal Service mail (although we continue
to experience delays in receiving U.S. Postal Service mail). The
Commission's contractor, Natek, Inc., will receive hand-delivered or
messenger-delivered paper filings or electronic media for the
Commission's Secretary at 236 Massachusetts Avenue, NE., Suite 110,
Washington, DC 20002. The filing hours at this location are 8 a.m. to 7
p.m. All hand deliveries must be held together with rubber bands or
fasteners. Any envelopes must be disposed of before entering the
building. Commercial and electronic media sent by overnight mail (other
than U.S. Postal Service Express Mail and Priority Mail) must be sent
to 9300 East Hampton Drive, Capitol Heights, MD 20743. U.S. Postal
Service first-class mail, Express Mail, and Priority Mail should be
addressed to 445 12th Street, SW., Washington, DC 20554. All filings
must be addressed to the Commission's Secretary, Marlene H. Dortch,
Office of the Secretary, Federal Communications Commission, 445 12th
Street, SW., Room TW-B204, Washington, DC 20554.
This proceeding shall be treated as a ``permit but disclose''
proceeding in accordance with the Commission's ex parte rules, 47 CFR
1.1200. Persons making oral ex parte presentations are reminded that
memoranda summarizing the presentations must contain summaries of the
substances of the presentations and not merely a listing of the
subjects discussed. More than a one or two sentence description of the
views and arguments presented is generally required. See 47 CFR
1.1206(b). Other rules pertaining to oral and written ex parte
presentations in permit-but-disclose proceedings are set forth in Sec.
1.1206(b) of the Commission's rules, 47 CFR 1.1206(b).
Synopsis
On August 11, 2003, Mark Boling filed a Petition ``individually and
on behalf of California consumers and California businesses'' asking
the Commission to declare that particular provisions of the California
Consumer Legal Remedies Act (``CLRA''), as applied to interstate
telephone calls, are not preempted by the Telephone Consumer Protection
Act (``TCPA''). The Commission seeks comment on the issues raised in
the Petition.
Mr. Boling states that he has acted as a party, representative
party, or legal representative in numerous California lawsuits in which
defendants have asserted as a defense that particular provisions of the
CLRA are preempted by the TCPA. Mr. Boling indicates that the CLRA, as
set forth in California Civil Code Sec. 1770(a), contains a list of
unlawful practices. He notes that California Civil Code Sec.
1770(a)(22)(A), in particular, makes unlawful the ``dissemination of an
unsolicited prerecorded message by telephone without an unrecorded,
natural voice first informing the person answering the telephone of the
name of the caller or the organization being represented, and either
the address or the telephone number of the caller, and without
obtaining the consent of that person to listen to the prerecorded
message.''
Mr. Boling further notes that Sec. 227(b)(1)(B) of the
Communications Act, as amended by the TCPA, makes it unlawful for any
person ``to initiate any telephone call to any residential telephone
line using an artificial or prerecorded voice to deliver a message
without the prior express consent of the called party, unless the call
is initiated for emergency purposes or is exempted by rule or order by
the Commission under paragraph (2)(B).'' Asserting that this provision
of Federal law poses no conflict with the relevant provisions of the
CLRA, Mr. Boling explains that:
In this instance, the CLRA controls dissemination of a
prerecorded message and does not control the telephone call
containing that message. The TCPA controls the call, and not the
dissemination of the message. Therefore, when a party initiates the
unlawful call it violates the TCPA and when the unlawful message is
received in California it violates the CLRA.
As such, Mr. Boling asserts that ``no conflict exists in the
enforcement of the TCPA or the CLRA as it relates to the activities set
forth in this action, as the actionable conduct in each law is
separately defined.'' Finally, Mr. Boling asserts that, because the
practices at issue in the Petition do not pertain to technical and
procedural requirements for identification of senders of telephone
facsimile messages or autodialed artificial or prerecorded voice
messages, as described in section 227(d) of the TCPA, they are not
subject to Sec. 227(e) of the TCPA.
Accordingly, Mr. Boling asks the Commission to issue a declaratory
ruling that the identified provisions of the California Civil Code, as
applied to interstate calling, are not preempted by the TCPA.
Federal Communications Commission.
Monica Desai,
Acting Chief, Consumer & Governmental Affairs Bureau.
[FR Doc. 05-11910 Filed 6-14-05; 8:45 am]
BILLING CODE 6712-01-P