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  1. 1. Federal Register / Vol. 75, No. 54 / Monday, March 22, 2010 / Proposed Rules 13471 H. Executive Order 13211, Actions That authority to address, as appropriate, and/or FCC Number 10–18, by any of Significantly Affect Energy Supply, disproportionate human health or the following methods: Distribution, or Use environmental effects, using practicable • Federal eRulemaking Portal: http:// This proposed rule is not subject to and legally permissible methods, under Follow the Executive Order 13211 (66 FR 28355, Executive Order 12898. instructions for submitting comments. • Federal Communications May 22, 2001) because it is not a List of Subjects in 40 CFR Part 52 Commission’s Web Site: http:// significant regulatory action under Environmental protection, Air Follow the Executive Order 12866. pollution control, Intergovernmental instructions for submitting comments. I. National Technology Transfer and relations, Nitrogen dioxide, Particulate • People with Disabilities: Contact the Advancement Act matter, Reporting and recordkeeping FCC to request reasonable Section 12(d) of the National requirements. accommodations (accessible format Technology Transfer and Advancement Authority: 42 U.S.C. 7401 et seq. documents, sign language interpreters, Act of 1995 (‘‘NTTAA’’), Public Law CART, etc.) by e-mail: Dated: February 23, 2010. or phone: 202–418–0530 or TTY: 202– 104–113, 12(d) (15 U.S.C. 272 note) Jared Blumenfeld, directs EPA to use voluntary consensus 418–0432. Regional Administrator, Region IX. For detailed instructions for standards in its regulatory activities [FR Doc. 2010–6103 Filed 3–19–10; 8:45 am] submitting comments and additional unless to do so would be inconsistent BILLING CODE 6560–50–P information on the rulemaking process, with applicable law or otherwise see the SUPPLEMENTARY INFORMATION impractical. Voluntary consensus section of this document. standards are technical standards (e.g., materials specifications, test methods, FEDERAL COMMUNICATIONS FOR FURTHER INFORMATION CONTACT: Lisa sampling procedures, and business COMMISSION Boehley, Consumer and Governmental practices) that are developed or adopted Affairs Bureau, Policy Division, at by voluntary consensus standards 47 CFR Parts 64 and 68 (202) 418–7395 (voice), or e-mail bodies. NTTAA directs EPA to provide [CG Docket No. 02–278; FCC 10–18] Congress, through OMB, explanations For additional information concerning when the Agency decides not to use Telephone Consumer Protection the Paperwork Reduction Act available and applicable voluntary information collection requirements AGENCY: Federal Communications contained in this document, contact consensus standards. The EPA believes that this action is Commission. Cathy Williams, Federal not subject to requirements of Section ACTION: Proposed rule. Communications Commission, at (202) 12(d) of NTTAA because application of 418–2918, or e-mail SUMMARY: In this document, the those requirements would be Commission invites comment on inconsistent with the Clean Air Act. SUPPLEMENTARY INFORMATION: On July 3, proposed revisions to its rules under the 2003, the Commission released the J. Executive Order 12898: Federal Telephone Consumer Protection Act Rules and Regulations Implementing the Actions To Address Environmental (TCPA) that would harmonize those TCPA of 1991, Report and Order (2003 Justice in Minority Populations and rules with the Federal Trade TCPA Order), CG Docket No. 02–278, Low-Income Populations Commission’s (FTC’s) recently amended FCC 03–153, published at 68 FR 44144, Executive Order 12898 (59 FR 7629 Telemarketing Sales Rule. The July 25, 2003, revising the TCPA rules, (Feb. 16, 1994)) establishes Federal Commission seeks comment on whether and adopted new rules to provide executive policy on environmental these proposed revisions would benefit consumers with several options for justice. Its main provision directs consumers and industry by creating avoiding unwanted telephone Federal agencies, to the greatest extent greater symmetry between the two solicitations, including the practicable and permitted by law, to agencies’ regulations, and by extending establishment of a national do-not-call make environmental justice part of their the FTC’s standards to regulated entities registry. This is a summary of the mission by identifying and addressing, that are not currently subject to the Commission’s document Rules and as appropriate, disproportionately high FTC’s rules. Regulations Implementing the TCPA of and adverse human health or DATES: Comments are due on or before 1991, Notice of Proposed Rulemaking, environmental effects of their programs, May 21, 2010. Reply comments are due CG Docket No. 02–278, FCC 10–18, policies, and activities on minority on or before June 21, 2010. Written adopted January 20, 2010, and released populations and low-income comments on the Paperwork Reduction January 22, 2010, seeking comment on populations in the United States. Act (PRA) proposed information proposed revisions to the Commission’s EPA lacks the discretionary authority collection requirements must be rules under the Telephone Consumer to address environmental justice in this submitted by the general public, Office Protection Act (TCPA) that would proposed action. In reviewing SIP of Management and Budget (OMB), and harmonize those rules with the Federal submissions, EPA’s role is to approve or other interested parties to Cathy Trade Commission’s (FTC’s) recently disapprove State choices, based on the Williams, Federal Communications amended Telemarketing Sales Rule. Commission, via e-mail to Cathy emcdonald on DSK2BSOYB1PROD with PROPOSALS criteria of the Clean Air Act. Document FCC 10–18 contains Accordingly, this action merely and to Nicholas A. proposed information collection proposes to disapprove certain State Fraser, Office of Management and requirements subject to the PRA of requirements for inclusion into the SIP Budget, via e-mail to 1995, Public Law 104–13. In addition, it under section 110 and subchapter I, part or via contains a new or modified ‘‘information D of the Clean Air Act and will not in- fax at 202–395–5167 on or before May collection burden for small business and-of itself create any new 21, 2010. concerns with fewer than 25 requirements. Accordingly, it does not ADDRESSES: You may submit comments employees,’’ pursuant to the Small provide EPA with the discretionary identified by CG Docket No. 02–278 Business Paperwork Relief Act of 2002, VerDate Nov<24>2008 14:16 Mar 19, 2010 Jkt 220001 PO 00000 Frm 00027 Fmt 4702 Sfmt 4702 E:FRFM22MRP1.SGM 22MRP1
  2. 2. 13472 Federal Register / Vol. 75, No. 54 / Monday, March 22, 2010 / Proposed Rules Public Law 107–198, see 44 U.S.C. 3506 Persons making oral ex parte requested concerning: (a) Whether the (c)(4). presentations are reminded that proposed collection of information is Pursuant to §§ 1.415 and 1.419 of the memoranda summarizing the necessary for the proper performance of Commission’s rules, 47 CFR 1.415 and presentations must contain summaries the functions of the Commission, 1.419, interested parties may file of the substances of the presentations including whether the information shall comments and reply comments on or and not merely a listing of the subjects have practical utility; (b) the accuracy of before the dates indicated on the first discussed. More than a one or two the Commission’s burden estimate; (c) page of this document. Comments may sentence description of the views and ways to enhance the quality, utility, and be filed using: (1) the Commission’s arguments presented is generally clarity of the information collected; and Electronic Comment Filing System required. See 47 CFR 1.1206(b). Other (d) ways to minimize the burden of the (ECFS), (2) the Federal Government’s rules pertaining to oral and written ex collection of information on the eRulemaking Portal, or (3) by filing parte presentations in permit-but- respondents, including the use of paper copies. See Electronic Filing of disclose proceedings are set forth in automated collection techniques or Documents in Rulemaking Proceedings, § 1.1206(b) of the Commission’s rules, other forms of information technology. 63 FR 24121 (1998). 47 CFR 1.1206(b). In addition, pursuant to the Small • Electronic Filers: Comments may be A copy of document FCC 10–18 and Business Paperwork Relief Act of 2002, filed electronically using the Internet by any subsequently filed documents in Public Law 107–198, see 44 U.S.C. accessing the ECFS: http:// this matter will be available during 3506(c)(4), the Commission seeks the Federal regular business hours at the FCC specific comment on how the eRulemaking Portal: http:// Reference Center, Portals II, 445 12th Commission might ‘‘further reduce the Street, SW., Room CY–A257, information collection burden for small • Paper Filers: Parties who choose to Washington, DC 20554, (202) 418–0270. business concerns with fewer than 25 file by paper must file an original and Document FCC 10–18 and any employees.’’ four copies of each filing. If more than subsequently filed documents in this OMB Control Number: 3060–0519. one docket or rulemaking number matter may also be purchased from the Title: Rules and Regulations appears in the caption of this Commission’s duplicating contractor at Implementing the Telephone Consumer proceeding, filers must submit two their Web site, http:// Protection Act of 1991, CG Docket No. additional copies for each additional, or call (800) 378– 02–278. docket or rulemaking number. 3160. A copy of document FCC 10–18 Form Number: N/A. Filings can be sent by hand or and any subsequently filed documents Type of Review: Revision of a messenger delivery, by commercial in this matter may also be found by currently approved collection. overnight courier, or by first-class or searching the Commission’s Electronic Respondents: Business or other for- overnight U.S. Postal Service mail. All Comment Filing System (ECFS) at profit entities; Not-for-profit filings must be addressed to the (insert CG institutions; and Individuals or Commission’s Secretary, Office of the Docket No. 02–278 into the Proceeding households. Secretary, Federal Communications block). Number of Respondents and Commission. To request materials in accessible Responses: 49,397 respondents, • All hand-delivered or messenger- formats for people with disabilities 135,632,883 responses. delivered paper filings for the (braille, large print, electronic files, Estimated Time per Response: .004 Commission’s Secretary must be audio format), send an e-mail to hours (15 seconds) to 1 hour. delivered to FCC Headquarters at 445 or call the Consumer Frequency of Responses: 12th St., SW., Room TW–A325, and Governmental Affairs Bureau at Recordkeeping requirement; Monthly, Washington, DC 20554. All hand (202) 418–0530 (voice), (202) 418–0432 annual, and on occasion reporting deliveries must be held together with (TTY). Document FCC 10–18 can also be requirements; Third party disclosure rubber bands or fasteners. Any downloaded in Word or Portable requirement. envelopes must be disposed of before Document Format (PDF) at: http:// Obligation to Respond: Required to entering the building. obtain or retain benefits. The • Commercial overnight mail (other Initial Paperwork Reduction Act of authorizing statute for this information than U.S. Postal Service Express Mail collection is found in the Telephone 1995 Analysis and Priority Mail) must be sent to 9300 Consumer Protection Act of 1991 East Hampton Drive, Capitol Heights, Document FCC 10–18 contains (TCPA), Public Law 102–243, 105 MD 20743. proposed information collection Statute 2394 (1991), which added • U.S. Postal Service first-class, requirements. The Commission, as part Section 227 of the Communications Act Express, and Priority mail must be of its continuing effort to reduce of 1934, [47 U.S.C. 227] Restrictions on addressed to 445 12th Street, SW., paperwork burden, invites the general the Use of Telephone Equipment. Washington DC 20554. public, OMB and other Federal agencies Total Annual Burden: 650,906 hours. People with Disabilities: To request to take this opportunity to comment on Total Annual Cost: $4,590,000. materials in accessible formats for the following information collection(s), Privacy Impact Assessment: Yes. The people with disabilities (braille, large as required by the Paperwork Reduction Privacy Impact Assessment was print, electronic files, audio format), Act of 1995 (PRA), Public Law 104–13. completed on June 28, 2007. It may be emcdonald on DSK2BSOYB1PROD with PROPOSALS send an e-mail to or call Public and agency comments are due reviewed at the Consumer and Governmental Affairs May 21, 2010. An agency may not privacyact/ Bureau at 202–418–0530 (voice), 202– conduct or sponsor a collection of privacy_impact_assessment.html. The 418–0432 (TTY). information unless it displays a current Commission is in the process of Pursuant to § 1.1200 of the valid control number. No person shall updating the PIA to incorporate various Commission’s rules, 47 CFR 1.1200, this be subject to any penalty for failing to revisions to it as a result of revisions to matter shall be treated as a ‘‘permit-but- comply with a collection of information the system of records notice (SORN). disclose’’ proceeding in accordance with subject to the PRA that does not display Nature and Extent of Confidentiality: the Commission’s ex parte rules. a valid control number. Comments are Confidentiality is an issue to the extent VerDate Nov<24>2008 14:16 Mar 19, 2010 Jkt 220001 PO 00000 Frm 00028 Fmt 4702 Sfmt 4702 E:FRFM22MRP1.SGM 22MRP1
  3. 3. Federal Register / Vol. 75, No. 54 / Monday, March 22, 2010 / Proposed Rules 13473 that individuals and households select ‘‘Federal Communications suggesting that Congress did not believe provide personally identifiable Commission’’ from the list of agencies written consent was needed with information, which is covered by the presented in the ‘‘Select Agency’’ box, respect to calls placed to unregistered FCC’s SORN, FCC/CGB–1, ‘‘Informal (5) click the ‘‘Submit’’ button to the right subscribers. Whether consent has been Complaints and Inquiries.’’ As required of the ‘‘Select Agency’’ box, (6) when the obtained orally or in writing, a seller or by the Privacy Act, 5 U.S.C. 552a, the list of FCC ICRs currently under review telemarketer placing a prerecorded Commission also published SORN, appears, look for the title of this ICR (or telemarketing call must be prepared to FCC/CGB1, ‘‘Informal Complaints and its OMB control number, if there is one) provide ‘‘clear and convincing evidence’’ Inquiries,’’ in the Federal Register on and then click on the ICR Reference that it received prior express consent December 15, 2009 (74 FR 66356), Number to view detailed information from the called party. which became effective on January 25, about this ICR.’’ 3. The FTC’s Telemarketing Sales 2010. A system of records for the do- Rule. Under the Telemarketing Sales not-call registry was created by the Synopsis Rule, as amended, prior express consent Federal Trade Commission (FTC) under Discussion to receive prerecorded telemarketing the Privacy Act. The FTC published a calls must be in writing. The written A. Prerecorded Message Calls agreement must be signed by the notice in the Federal Register describing the system. See 68 FR 37494, Written Consent Requirement consumer and must be sufficient to June 24, 2003. show that he or she: (1) Received ‘‘clear 1. The FCC’s TCPA Rules. The TCPA Needs and Uses: On July 3, 2003, the and conspicuous disclosure’’ of the prohibits the delivery of artificial or Commission released the Rules and consequences of providing the prerecorded voice messages to Regulations Implementing the TCPA of requested consent—i.e., that the residential telephone lines, absent an 1991, Report and Order (2003 TCPA consumer will receive future calls that emergency, without the ‘‘prior express Order), CG Docket No. 02–278, FCC 03– deliver prerecorded messages by or on consent’’ of the called party. Under the 153, published at 68 FR 44144, July 25, behalf of a specific seller—and (2) 2003, revising the TCPA rules, and Commission’s TCPA rules and orders, having received this information, agrees adopted new rules to provide prior express consent of a residential unambiguously to receive such calls at consumers with several options for telephone subscriber to receive a a telephone number the consumer avoiding unwanted telephone prerecorded telemarketing call (or live designates. In addition, the written solicitations. These new rules telephone solicitation) must be in agreement must be obtained ‘‘without established a national do-not-call writing if the subscriber’s number is requiring, directly or indirectly, that the registry, set a maximum rate on the listed on the national do-not-call agreement be executed as a condition of number of abandoned calls, required registry, but may be obtained orally or purchasing any good or service.’’ The telemarketers to transmit caller ID in writing if the subscriber’s number is FTC has determined that written information, and modified the not listed on the registry. In explaining agreements obtained in compliance with Commission’s unsolicited facsimile the basis for this distinction, the the E-SIGN Act will satisfy the advertising requirements. On January Commission has noted that a residential requirements of its rule, such as, for 22, 2010, the Commission released the subscriber who places his or her number example, agreements obtained via an Rules and Regulations Implementing the on the registry has indicated a desire, e-mail or Web site form, telephone TCPA of 1991, Notice of Proposed through the act of registering, not to keypress, or voice recording. Finally, Rulemaking (NPRM), CG Docket No. 02– receive unsolicited telemarketing calls under the Telemarketing Sales Rule, the 278, FCC 10–18 seeking comment on and, as such, written consent evidences seller bears the burden of proving that proposed revisions to its rules under the the subscriber’s wish to be contacted by a clear and conspicuous disclosure was Telephone Consumer Protection Act only particular sellers at a particular provided, and that an unambiguous (TCPA) that would harmonize those number. When written consent is consent was obtained. rules with the Federal Trade required under the Commission’s rules 4. Consistent with Congress’s Commission’s (FTC’s) recently amended and orders (because the subscriber is directive in the Do Not Call Telemarketing Sales Rule. The listed on the national do-not-call Improvement Act of 2007 (DNCIA) to Commission anticipates that proposed registry), the seller or telemarketer must ‘‘maximize consistency’’ of the revisions to §§ 64.1200(a)(1) and obtain a signed, written agreement Commission’s TCPA rules with the 64.1200(a)(2) of the Commission’s TCPA between the subscriber and seller stating FTC’s Telemarketing Sales Rule, the rules would contain new information that the subscriber agrees to be Commission seeks comment on whether collection requirements under the contacted by that seller and including it should revise §§ 64.1200(a)(1) and Paperwork Reduction Act of 1995. The the telephone number to which the calls 64.1200(a)(2) of its rules to provide that, proposed revisions would require may be placed. The Commission has for all calls, prior express consent to sellers and telemarketers, when indicated that the term ‘‘signed’’ may receive prerecorded telemarketing obtaining telephone subscribers’ prior include an electronic or digital form of messages must be obtained in writing. express consent to receive prerecorded signature, to the extent such form of The Commission seeks comment on telemarketing calls, to obtain such prior signature is recognized as a valid these proposed revisions and specific express consent in writing (including signature under applicable Federal or related issues in the discussion that electronic methods of consent). State contract law. follows. emcdonald on DSK2BSOYB1PROD with PROPOSALS To view a copy of this information 2. With respect to a residential 5. As an initial matter, the collection request (ICR) submitted to subscriber who has not listed his Commission seeks comment on its OMB: (1) Go to the Web page http:// number on the national do-not-call authority to adopt a prior written, registry, the Commission has declined consent requirement similar to the (2) look for the section of the Web page to require written consent to deliver FTC’s. Specifically, while the term called ‘‘Currently Under Review,’’ (3) prerecorded messages to such a ‘‘prior express consent’’ appears in both click on the downward-pointing arrow subscriber and noted that allowing oral subsections 227(b)(1)(A) and (b)(1)(B) of in the ‘‘Select Agency’’ box below the consent in that context is consistent the Communications Act, the statute is ‘‘Currently Under Review’’ heading, (4) with statements in the legislative history silent regarding the precise form of such VerDate Nov<24>2008 14:16 Mar 19, 2010 Jkt 220001 PO 00000 Frm 00029 Fmt 4702 Sfmt 4702 E:FRFM22MRP1.SGM 22MRP1
  4. 4. 13474 Federal Register / Vol. 75, No. 54 / Monday, March 22, 2010 / Proposed Rules consent (i.e., oral or written). Certain adapt existing § 64.1200(c)(2)(ii) of its subject to the FTC’s rule or to the statements in the legislative history, rules (governing the content of written Commission’s rule. It tentatively however, suggest that Congress may consent agreements) to apply concludes that written consent also may have contemplated that consent may be specifically to prerecorded enhance the Commission’s enforcement obtained orally or in writing. telemarketing calls, as the FTC has done efforts and serve to protect both 6. Given that such a rule change in its Telemarketing Sales Rule. The consumers and industry from erroneous would permit a telemarketer wishing to Commission tentatively concludes that claims that consent was or was not deliver prerecorded telemarketing requiring a written agreement given, to the extent that, unlike oral messages to residential subscribers to evidencing consent to receive consent, the existence of a paper or obtain agreements from the subscribers prerecorded messages in particular, electronic record may provide by any electronic means authorized by such as that required by the FTC, may unambiguous proof of consent. The the E-SIGN Act (including, for example, help to ensure that consumers are Commission seeks comment on these e-mail, Web form, telephone key press, adequately apprised of the specific tentative conclusions. or voice recording), the Commission nature of the consent that is being 11. The Commission notes that in seeks comment on whether requested and, in particular, of the fact light of the numerous options available Congressional concerns expressed that they will receive prerecorded today under the E-SIGN Act to obtain a nearly two decades ago regarding the message calls as a consequence of their written agreement, a telemarketer may potential burdens of a written consent agreement. be afforded flexibility to determine the requirement remain relevant today in 8. Assuming the Commission has form of ‘‘written’’ consent that is most light of the multitude of quick and cost legal authority to adopt a written appropriate, least burdensome, and effective options now available for consent requirement, it seeks comment most cost effective for that particular obtaining written consent, other than on whether it should adopt the same business (e.g., e-mail, Web site form, via traditional pen and paper. The requirement both for calls governed by telephone keypress, or voice recording). Commission also notes that section section 227(b)(1)(A) of the It seeks information and data on the 227(b)(2)(B) of the Communications Act, Communications Act (generally specific compliance costs and burdens in authorizing the Commission to adopt prohibiting automated or artificial or associated with various written consent exemptions from the prerecorded prerecorded message calls without prior options under the E-SIGN Act and on message prohibition, states that it may express consent to emergency lines, the extent to which sellers and do so ‘‘subject to such conditions as the health care facilities, and cellular telemarketers are already utilizing these Commission may prescribe.’’ This services), and for calls governed by methods for obtaining consumer statement suggests that Congress section 227(b)(1)(B) of the consent, either pursuant to the FTC’s intended the Commission to exercise Communications Act (generally amended Telemarketing Sales Rule or discretion in establishing the parameters prohibiting prerecorded message calls pursuant to Commission rules when a of any exemption from the prohibition without prior express consent to called party’s number is listed on the on prerecorded messages. The residential telephone lines). Because the national do-not-call registry. Finally, to Commission seeks comment on whether two provisions include an identically the extent that the Commission the discretion afforded it in this worded exception for calls made with currently requires sellers and subsection extends to establishing a the ‘‘prior express consent of the called telemarketers placing prerecorded written consent requirement. The party,’’ the Commission tentatively telemarketing calls to be prepared to Commission also seeks comment on concludes that any written consent provide ‘‘clear and convincing evidence’’ how best to reconcile the congressional requirement adopted should apply to of the receipt of prior express consent objective to maximize consistency both provisions. The Commission seeks from the called party, even when between the FTC’s rule and the comment on this tentative conclusion. consent has been obtained orally, it Commission’s rule with the statements 9. The Commission also seeks seeks comment on the extent to which referenced above in the TCPA’s information concerning the extent to Commission adoption of a written legislative history reflecting the concern which, in the absence of written consent requirement would add to the that written consent may prove unduly consent, residential subscribers have compliance burden associated with this burdensome to telemarketers and to been targeted by unscrupulous senders existing requirement. subscribers who wish to receive of prerecorded messages who erroneously claim to have obtained the Exemption for Prerecorded telephone solicitations. The subscriber’s oral consent. If, after Telemarketing Calls to Established Commission seeks comment on whether reviewing the record, the Commission Business Relationship Customers the convenience afforded by the E-SIGN Act addresses these concerns. determines that it does not have legal 12. The FCC’s TCPA Rules. The TCPA 7. As noted above, when written authority to adopt a written consent prohibits the use of artificial or consent is required under the requirement, it seeks comment on what, prerecorded messages in telephone calls Commission’s current rules (because the if any, additional steps should be to residential (wireline) numbers called party’s number is listed on the required by senders who choose to without the prior express consent of the national do-not-call registry), the seller obtain consent orally in order to verify called party, but permits the or telemarketer must obtain a signed, that consent was, in fact, given. Commission to exempt from this written agreement between the 10. As a policy matter, the provision calls that are non-commercial emcdonald on DSK2BSOYB1PROD with PROPOSALS subscriber and seller stating that the Commission tentatively concludes that and commercial calls that ‘‘do not subscriber agrees to be contacted by that harmonizing its prior consent adversely affect the privacy rights of the seller and including the telephone requirement with the FTC’s may reduce called party’’ and that do not transmit an number to which the calls may be the potential for industry and consumer ‘‘unsolicited advertisement.’’ The TCPA placed. If the Commission were to adopt confusion surrounding a telemarketer’s does not explicitly exempt from the a written consent requirement for obligations to the extent that similarly prohibition on artificial and prerecorded placing prerecorded telemarketing calls situated entities would no longer be message calls those from a party with to unregistered subscribers, it seeks subject to different requirements whom the subscriber has an established comment on whether it also should depending upon whether an entity is business relationship. Nevertheless, in VerDate Nov<24>2008 14:16 Mar 19, 2010 Jkt 220001 PO 00000 Frm 00030 Fmt 4702 Sfmt 4702 E:FRFM22MRP1.SGM 22MRP1
  5. 5. Federal Register / Vol. 75, No. 54 / Monday, March 22, 2010 / Proposed Rules 13475 1992, the Commission determined to established customers could not be express prior written agreement, sellers create such an exemption, based on its relied on to prevent abuse through and telemarketers are prohibited from authority under the TCPA to exempt excessive prerecorded message delivering a prerecorded telemarketing commercial calls that ‘‘do not adversely telemarketing, especially as new digital message, regardless of whether the call affect residential subscriber privacy technologies, including Voice over is made to a consumer who has an interests.’’ The Commission concluded, Internet Protocol (VoIP), reduce the cost established business relationship with based upon ‘‘the comments received and of transmitting prerecorded the seller. As a result, an ‘‘established the legislative history,’’ that a telemarketing messages by telephone; business relationship’’ currently solicitation to someone with whom a (2) prerecorded telemarketing messages provides the necessary permission to prior business relationship exists does impose potential costs, including risks deliver prerecorded telemarketing not adversely affect subscriber privacy to health and safety when an extended messages only for entities subject to the interests. It further concluded that such message ties up a line and prevents Commission’s, but not the FTC’s, a solicitation can be ‘‘deemed to be consumers from placing emergency jurisdiction (e.g., banks, airlines, invited or permitted’’ by a subscriber in calls, as well as burdens on consumers, common carriers). Based on the light of the business relationship. including costs to store and retrieve foregoing, the Commission seeks Finally, noting that the legislative prerecorded messages on home comment on whether it should conform history indicates that the TCPA ‘‘does answering machines or voicemail its rule to the FTC’s Telemarketing Sales not intend to unduly interfere with services; and (3) various methods by Rule by eliminating the established ongoing business relationships,’’ the which consumers may elect to opt out business relationship exemption from Commission stated that ‘‘requiring of future prerecorded message calls are the general prohibition on prerecorded actual consent to prerecorded message often cumbersome to use or simply do telemarketing calls to residential calls where [established business] not work. Based on this record, the FTC telephone lines. relationships exist could significantly changed course and published a new 16. As noted above, the Commission impede communications between proposed amendment to the created the ‘‘established business businesses and their customers.’’ Telemarketing Sales Rule to expressly relationship’’ exemption from the 13. The FTC’s Telemarketing Sales prohibit all unsolicited prerecorded TCPA’s ban on artificial or prerecorded Rule. In 2004, the FTC published a telemarketing calls without the messages based on its authority under notice of proposed rulemaking in which consumer’s prior written agreement, the TCPA to exempt calls that ‘‘do not it proposed, at the request of a even with respect to prerecorded calls to adversely affect residential subscriber telemarketer, the creation of a safe established business relationship privacy interests.’’ It reasoned that a harbor under the Telemarketing Sales customers. subscriber’s privacy interests are not Rule for prerecorded telemarketing calls 15. In 2008, the FTC amended the adversely affected by the receipt of such to established business customers. Telemarketing Sales Rule to make prerecorded message calls because, in Under the proposed safe harbor, explicit that the existence of an that instance, the solicitation can be prerecorded messages to consumers established business relationship will ‘‘deemed to be invited or permitted’’ by with whom a seller has an ‘‘established not serve as authorization for placing the subscriber in light of the business business relationship’’ (as defined by the prerecorded telemarketing calls. Thus, relationship. In light of the strenuous FTC’s rules) would not violate the FTC’s although an established business opposition expressed by the thousands Telemarketing Sales Rule if, among relationship will continue to serve as of consumers who filed comments in other things, a keypress opt-out authorization for placing live the FTC’s rulemaking, the Commission mechanism or other means were telemarketing calls to consumers under seeks comment on the continued provided at the outset of the call for the FTC’s Telemarketing Sales Rule, it validity of this determination and consumers to add their telephone no longer serves as authorization for whether prerecorded telemarketing calls number to the seller’s company-specific placing prerecorded telemarketing calls. (i.e., sales calls) may reasonably be do-not-call list. As amended, the FTC’s Telemarketing ‘‘deemed invited or permitted’’ by 14. In 2006, the FTC denied the Sales Rule prohibits prerecorded established business customers. In proposed safe harbor request that would message calls unless the called party has particular, the Commission seeks have permitted prerecorded given prior express written consent and comment on whether its established telemarketing calls to established the call complies with certain additional business relationship exception remains business customers based, in large requirements in 16 CFR 310.4(b)(1)(v). supportable on the basis that artificial or measure, on the more than 13,000 In light of the substantial record of prerecorded message calls to established consumer comments it had received public comments developed over the customers do not adversely affect opposing the proposal. According to the course of the FTC’s four-year residential subscriber privacy interests FTC, many consumers expressed the rulemaking opposing the creation of a and do not transmit an unsolicited view that, in light of the ‘‘intrusive and safe harbor for prerecorded advertisement. impersonal nature’’ of prerecorded telemarketing calls to established 17. In the 1992 rulemaking, the messages, neither a prior inquiry nor a business customers, and in view of Commission also expressed the concern purchase should be deemed to imply Congress’s mandate to maximize that ‘‘requiring actual consent to consumer consent to receive future consistency between the Commission’s prerecorded message calls where prerecorded solicitations from a seller. rules and the FTC’s Telemarketing Sales [established business] relationships emcdonald on DSK2BSOYB1PROD with PROPOSALS The FTC noted that this reaction was Rule, the Commission seeks comment exist could significantly impede contrary to prior consumer support on whether it should reconsider its 1992 communications between businesses among commenters for an exemption to determination that an established and their customers’’ and, as such, allow live telemarketing calls to business relationship may be deemed to might be at odds with statements in the established business customers. In constitute express invitation or legislative history indicating Congress’s addition, the FTC denied the proposed permission to receive unsolicited desire not to ‘‘unduly interfere with safe harbor based on record evidence prerecorded telemarketing calls. The ongoing business relationships.’’ The indicating, among other things, that: (1) FTC’s 2008 rule amendments make Commission seeks comment on the the self interest of sellers in retaining explicit that, absent a consumer’s extent to which authorization to receive VerDate Nov<24>2008 14:16 Mar 19, 2010 Jkt 220001 PO 00000 Frm 00031 Fmt 4702 Sfmt 4702 E:FRFM22MRP1.SGM 22MRP1
  6. 6. 13476 Federal Register / Vol. 75, No. 54 / Monday, March 22, 2010 / Proposed Rules prerecorded message calls based on Commission to create exemptions from consumers, the FTC determined that the prior written or oral consent (rather than the TCPA’s ban on artificial or creation of an exemption for this on the basis of an established business prerecorded messages to residential category of calls would not adversely relationship) would in fact ‘‘unduly lines for calls that are non-commercial affect consumer privacy rights. interfere with ongoing business and for commercial calls that do not 22. On the basis of information relationships’’ or ‘‘impede adversely affect the privacy rights of the presented in the record of the FTC’s communications’’ between businesses called party and that do not transmit an rulemaking proceeding on healthcare- and their customers. In particular, the unsolicited advertisement. The related prerecorded message calls made Commission seeks comment on whether Commission’s prerecorded message by, or on behalf of, a covered entity or technological advances, such as the use rules currently contain no specific its business associate, as those terms are of one or more methods available under exemption for healthcare-related defined in the HIPAA Privacy Rule, the the E–SIGN Act for establishing a prerecorded message calls that are Commission seeks comment on whether consumer’s prior express written subject to the Health Insurance it likewise should exempt such calls consent to receive prerecorded Portability and Accountability Act of from the general prohibition on telemarketing calls, have minimized the 1996 (HIPAA). prerecorded message calls to residential burden associated with obtaining the 21. The FTC’s Telemarketing Sales lines under the TCPA. If so, it seeks express consent of established business Rule. In its 2008 amendments to the comment on the Commission’s authority customers (e.g., instructing an Telemarketing Sales Rule, the FTC to exempt these calls either under established customer during a live section 227(b)(2)(B)(i) of the exempted from its prior written consent telephone solicitation to use a keypress Communications Act (calls that are not requirement healthcare-related feature to request future prerecorded made for a commercial purpose), or prerecorded message calls that are message calls). under section 227(b)(2)(B)(ii) of the subject to HIPAA. These prerecorded 18. The Commission also seeks Communications Act (commercial calls calls include, among others, flu shot and specific comment on the experiences of that do not adversely affect the privacy other immunization reminders, telemarketers that have conducted rights of the called party and that do not prescription refill reminders, health marketing campaigns on behalf of transmit an unsolicited advertisement). screening reminders; calls to obtain sellers that are subject to the FTC’s In addition, it notes that, with limited permission to contact doctors for recently amended Telemarketing Sales exception, HIPAA requires that a renewal of medication or medical Rule in obtaining the requisite prior ‘‘covered entity’’ obtain an individual’s written consent from those businesses’ supply orders; calls to obtain written authorization before using established customers. Has the FTC’s documentation needed for billing health protected health information (including revised rule had the effect of impeding plans; calls by home health agencies to the individual’s name and telephone communications between businesses follow-up on patients for six months number) for marketing purposes. As a and their customers and, if so, in what after discharge; calls monitoring patient practical matter, this HIPAA restriction ways? If the Commission were to retain compliance with prescribed medical (in conjunction with other HIPAA the current exemption for established therapies; and calls encouraging provisions) would appear to preclude or business customers, it seeks comment, enrollment in disease management or limit the delivery of prerecorded particularly from individual consumers treatment programs, and in migration telemarketing calls placed by a ‘‘covered and consumer groups, regarding from branded to generic drugs, and from entity’’ or its ‘‘business associate’’ to whether consumers would support the retail to mail order pharmacies. The individuals with whom the covered use of prerecorded telemarketing FTC noted commenters’ fear that such entity or business associate has no pre- messages by sellers and telemarketers calls may be subject to the existing relationship (i.e., ‘‘cold calling’’ with established business customers if Telemarketing Sales Rule to the extent of consumers). The Commission seeks such messages provided an interactive that they can result in a payment or co- comment on this aspect of the HIPAA opt-out mechanism that would provide pay for medication, durable medical requirements, on the relative frequency a means to avoid future prerecorded equipment, or medical services. An and volume of healthcare-related messages from that seller. exemption is necessary, the FTC prerecorded telemarketing calls placed 19. Finally, the Commission determined, because (among other to individuals by entities that do not tentatively concludes that conforming things) the individuals most in need of have a pre-existing relationship with the its rule governing prerecorded message these healthcare-related prerecorded consumer, and on the extent to which calls to established business customers messages (elderly or ill patients) might consumers consider such calls intrusive to the FTC’s may reduce the potential be unable or simply unlikely to take the or an invasion of privacy. for industry and consumer confusion steps necessary to provide their express 23. The Commission notes that when surrounding a telemarketer’s authority written consent to receive them. To the one of its TCPA rules differs to place unsolicited prerecorded extent that the communications between substantively from the FTC’s message calls to established customers healthcare-related entities subject to Telemarketing Sales Rule, it has been to the extent that similarly situated HIPAA regulations and their customers generally understood that the more entities would no longer be subject to already are subject to extensive Federal restrictive requirement prevails and sets different requirements depending upon regulations, some of which directly the standard applicable to all entities whether an entity is subject to the FTC’s address the making of telephone that are subject to the jurisdiction of emcdonald on DSK2BSOYB1PROD with PROPOSALS rule or to the Commission’s. The solicitations to patients, the FTC was both agencies. In this instance, although Commission seeks comment on this persuaded that there would be little risk the FTC has adopted a more specific tentative conclusion. that the creation of an exemption for provision, the Commission’s rule, by these calls would lead to abusive providing no exemption for healthcare- Exemption for Health Care Related Calls practices by these entities. Finally, related prerecorded message calls Subject to HIPAA citing evidence that prerecorded subject to HIPAA, is arguably more 20. The FCC’s TCPA Rules. As healthcare messages of the type restrictive. Accordingly, the previously noted, section 227 of the described above are generally deemed Commission seeks comment on the Communications Act allows the more welcome and less intrusive by practical impact of this disparity on VerDate Nov<24>2008 14:16 Mar 19, 2010 Jkt 220001 PO 00000 Frm 00032 Fmt 4702 Sfmt 4702 E:FRFM22MRP1.SGM 22MRP1