[Federal Register: February 1, 2008 (Volume 73, Number 22)]
[Rules and Regulations]
[Page 6041-6042]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01fe08-13]
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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.
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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: http://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
[[Page 6042]]
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 Sec.
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