[Federal Register: June 29, 2005 (Volume 70, Number 124)]
[Proposed Rules]
[Page 37318-37320]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29jn05-24]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 64
[CG Docket No. 02-278; DA 05-1347]
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 reopens the public comment
period for six declaratory ruling petitions that seek Commission
preemption under the Telephone Consumer Protection Act (``TCPA'') of
the application of particular state laws to interstate telemarketing
calls.
DATES: Comments are due on or before July 29, 2005, and reply comments
are due on or before August 18, 2005.
[[Page 37319]]
ADDRESSES: Federal Communications Commission, 445 12th Street, SW.,
Washington, DC 20554. See SUPPLEMENTARY INFORMATION for further filing
instructions.
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 05-1347, released May 13, 2005. On July 3, 2003, the
Commission released a Report and Orders revising its rules under the
TCPA (2003 TCPA Order), published at 68 FR 44144, July 25, 2003. 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. The Commission instructed any party who believes
that a state law is inconsistent with section 227 of the Communications
Act or the Commission's rules to seek a declaratory ruling from the
Commission. The six Petitions that are the subject of this document
sought such a declaratory ruling. In order to assemble a more complete
administrative record that encompasses and reflects relevant
developments in this area, the Commission invites interested parties to
file supplemental comments in the record of the following proceedings:
(1) American Teleservices Association Petition for Declaratory Ruling
with Respect to Certain Provisions of the New Jersey Consumer Fraud Act
and the New Jersey Administrative Code, DA 04-3185, filed Aug. 24, 2004
(citing N.J. Statutes Ann. section 56:8-119, et seq. (West 2003) and
N.J. Admin. Code title 13, section 45D (2004)); (2) ccAdvertising (aka
FreeEats.com, Inc.) Petition for Expedited Declaratory Ruling, DA 04-
3187, filed Sept. 13, 2004 (citing N.D. Cent. Code section 51-28-02);
(3) Consumer Bankers Association Petition for Declaratory Ruling with
Respect to Certain Provisions of the Indiana Revised Statutes and
Indiana Administrative Code, DA 04-3835, filed Nov. 19, 2004 (citing
Burns Ind. Code Ann. section 24-4.7-4 (2004) and Ind. Admin. Code
section 11 IAC 1-1-4 and section 11 IAC 1-1-3.5 (2004)); (4) Consumer
Bankers Association Petition for Expedited Declaratory Ruling with
Respect to Certain Provisions of the Wisconsin Statutes and Wisconsin
Administrative Code, DA 04-3836, filed Nov. 19, 2004 (citing Wis.
Statutes section 100.52 (2003) and Wis. Admin. Code, Agriculture, Trade
and Consumer Protection, sections 127.02-127.20 and 127.80-127.84));
(5) National City Mortgage Co. Petition for Expedited Declaratory
Ruling with Respect to Certain Provisions of the Florida Statutes, DA
04-3837, filed Nov. 22, 2004 (citing Fla. Statutes section 501.059);
and (6) TSA Stores, Inc. (The Sports Authority) Petition for
Declaratory Ruling with Respect to Certain Provisions of the Florida
Laws and Regulations, DA 05-342, filed Feb. 1, 2005 (citing Fla.
Statutes section 501.059)).
When filing comments, please reference CG Docket No. 02-278, DA 05-
1347, and the DA number assigned to the petition to which the comments
relate, including one or more of the following: DA 04-3185, DA 04-3187,
DA 04-3835, DA 04-3836, DA 04-3837, or DA 05-342. Comments 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 the
Commission continues 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-disclosed proceedings are set forth in
section 1.1206(b) of the Commission's rules, 47 CFR 1.1206(b).
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
.
Synopsis
In late 2004 and early 2005, the Commission received six petitions
for declaratory ruling seeking Commission preemption under the TCPA of
particular state laws, as applied to interstate telemarketing calls. In
response to public notices issued by the Commission's Consumer &
Governmental Affairs Bureau, interested parties filed comments with the
Commission on issues raised in the six
[[Page 37320]]
declaratory ruling petitions. Since the close of the comment cycles
relating to these petitions, the Commission's staff has learned of a
number of recent developments that, if made a part of the formal
record, may help to inform the Commission's consideration of particular
issues raised in the petitions. In particular, a recently filed
petition for declaratory ruling describes an increasing number of
divergent state laws applicable to interstate telemarketing and lists
several telemarketing-related bills that have been introduced in state
legislatures in recent months that, if enacted, would apply to
interstate telemarketing calls. See Alliance Contact Services, et al.
Petition for Declaratory Ruling that the FCC has Exclusive Regulatory
Jurisdiction Over Interstate Telemarketing, filed April 29, 2005.
Similarly, we are aware of recent court proceedings involving
adjudications of state enforcement actions in which the proper
relationship between state and federal telemarketing laws has been at
issue before the court. See, e.g., North Dakota v. FreeEats.com, Inc.,
Opinion and Order, No. 04-C-1694 (N.D. Dist. Ct. Feb.2, 2005); North
Dakota v. FreeEats.com, Inc., Stipulation for Entry of Final Judgment,
No. 04-C-1694 (N.D. Dist. Ct. March 9, 2005) (state court holding that
interstate political polling calls using prerecorded message violate
state's telemarketing law).
Finally, we note that the Consumer & Governmental Affairs Bureau
released contemporaneously with this document two additional public
notices seeking public comment on two separate petitions for
declaratory ruling that raise issues relating to the Commission's
jurisdiction and preemption authority under the TCPA. See Consumer &
Governmental Affairs Bureau Seeks Comment on Petition for Declaratory
Ruling Relating to Commission's Jurisdiction Over Interstate
Telemarketing, Public Notice, CG Docket No. 02-278, DA 05-1346 (rel.
May 13, 2005) (seeking comment on joint petition filed by 33
organizations engaged in interstate telemarketing activities in which
petitioners ask Commission to declare its exclusive regulatory
jurisdiction over interstate telemarketing); Consumer & Governmental
Affairs Bureau Seeks Comment on Petition for Declaratory Ruling on
Preemption of California Telemarketing Rules, Public Notice, CG Docket
No. 02-278, DA 05-1348 (rel. May 13, 2005) (seeking comment on petition
for declaratory ruling in which petitioner asks Commission not to
preempt particular provisions of California's telemarketing laws). In
order to assemble a more complete administrative record that
encompasses and reflects relevant developments in this area, the
Commission reopens the public comment period for the six declaratory
ruling petitions referenced above and invites interested parties to
file supplemental comments in the record of those proceedings.
Federal Communications Commission.
Monica Desai,
Acting Chief, Consumer & Governmental Affairs Bureau.
[FR Doc. 05-12466 Filed 6-28-05; 8:45 am]
BILLING CODE 6712-01-P