In 1991 Congress passed an Act to protect consumers from various kinds of harassment by telephone, stating in its findings that ``Many consumers are outraged over the proliferation of intrusive, nuisance calls to their homes from telemarketers.'' In addition to prohibiting various practices such as using recorded messages for solicitations, it required the Federal Communications Commission to ``prescribe regulations to implement methods and procedures for protecting the privacy rights... in an efficient, effective, and economic manner and without the imposition of any additional charge to telephone subscribers.''
The next sentence of the Act stated that such regulations ``may require the establishment and operation of a single national database to compile a list of telephone numbers of residential subscribers who object to receiving telephone solicitations, and to make that compiled list and parts thereof available for purchase.'' Making a telemarketing call to any number in that database would have been prohibited.
The FCC decided against the idea of a single national database, preferring as more ``cost-beneficial'' what they called ``company-specific do-not-call lists.'' This means that you have to ask each company specifically to be placed on their list, and have no way of getting your number on every company's lists in advance of their first call.
Everyone can make their own judgments on whether company-specific do-not-call lists, which have been enforced by the FCC for more than three years now, have been effective in preventing unwanted telephone solicitations. We think that it will be possible to do better by using the Internet. We hope that the collection of DECLARATIONs that our clients publish on the Web will become a global do-not-contact database, where each individual controls the data about him or her.
The global nature of the Internet may turn out to be important here. As the cost of international phone calls drops towards zero over the next few years, we anticipate the birth of a new industry: transnational telemarketing. Many airlines already send inbound reservation calls across national borders; we think it's only a matter of time before direct marketers will start calling you from other countries. For telemarketers the advantages will be lower-cost labor plus possibly favorable tax laws, and the ability to staff their call centers around the clock by calling the parts of the world that are awake at the time. Their clients may be able to avoid inconvenient national restrictions in the same way that they avoided state regulations by making interstate calls. For consumers it may mean that the pleasure of being able to make cheap international calls will be dampened by an increase in unwelcome junk calls, possibly of a more objectionable nature. The only defense we can see is the Internet. Consumers may have to take on the task of enforcement themselves; the United Nations may not be up to it.
The following ``edited highlights'' were adapted from several sources and are not necessarily up-to-date or accurate; we could find some but not all the relevant texts on the FCC's Web site. Paper copies of U.S. laws and regulations concerning telecommunications can be ordered from the Federal Communications Commission at 1120 19th St N.W., Suite LL-20, Washington, D.C. 20036 (Telephone: +1 202 452 1422).
In 1991 President Bush signed into law the Telephone Consumer Protection Act of 1991 (TCPA), Public Law 102-243 (1991), which amended Title II of the Communications Act of 1934, 47 U.S.C. Section 201 et seq., by adding a new section, 47 U.S.C. Section 227. The U.S. Congress enacted it to reduce the nuisance and invasion of privacy caused by telemarketing and prerecorded calls. Congress ordered the FCC to make and clarify certain regulations, some of which are given below.
The TCPA imposes restrictions on the use of automatic telephone dialing systems, of artificial or prerecorded voice messages, and of telephone facsimile machines to send unsolicited advertisements. Specifically, the TCPA prohibits autodialed and prerecorded voice message calls to emergency lines, health care facilities or similar establishments, and numbers assigned to radio common carrier services or any service for which the called party is charged for the call, unless the call is made with the prior express consent of the called party or is made for emergency purposes. The TCPA also prohibits artificial or prerecorded voice message calls to residences made without prior express consent, unless it is an emergency call or specifically exempted by the Commission. Unsolicited advertisements may not be transmitted by telephone facsimile machines. Those using telephone facsimile machines or transmitting artificial or prerecorded voice messages are subject to certain identification requirements. Finally, the TCPA requires that the Commission consider several methods to accommodate telephone subscribers who do not wish to receive unsolicited advertisements, including live voice solicitations. The statute also outlines various remedies for violations of the TCPA.
A person who has received
more than one telephone call
within any 12 month period by or on behalf of the same company
in violation of the regulations prescribed under this subsection may,
if otherwise permitted by the laws or rules of court of a State
bring in an appropriate court of that State--
As directed by the TCPA, the Commission has considered a number of alternatives for residential telephone subscribers to avoid receiving unwanted telephone solicitations. These include a national database, network technologies, special directory markings, time of day restrictions, and industry-based or company-specific do-not-call lists. The NPRM requested comment, as well as focused cost/benefit analyses, of these and any other methods proposed for protecting the privacy of residential telephone subscribers.
Commenters opposed to industry-based or company specific do-not-call lists contend that existing industry-based and company-specific lists have not reduced the number of unwanted telephone solicitations, and that Congress has found such efforts ineffective. Further, these commenter argue that these alternatives provide no affirmative method for the consumer to avoid or reject a telemarketer's first call in advance. Moreover, Private Citizen, Inc. (Private Citizen) contends that telemarketers do not always heed an initial do-not-call request, and may call a consumer several times before honoring a consumer's request not to receive further calls or solicitations.
The legislative history suggests that properly implemented company-specific do-not-call lists would satisfy the statutory requirements of the TCPA. In light of that assertion, and upon weighing the costs and benefits... we conclude that the company-specific do-not-call list is the most effective and efficient means to permit telephone subscribers to avoid unwanted telephone solicitations. ... Additionally, businesses could gain useful information about consumer preferences, and can comply with such preferences without overly burdensome costs or administrative procedures. This alternative would best protect residential subscriber confidentiality, because do-not-call lists would not be universally accessible, and could be verified with a telemarketer's own customer information. Company-specific do-not-call lists would impose the costs of protecting consumer privacy squarely on telemarketers rather than telephone companies or consumers who do not wish to be called. ... In sum, the company-specific do-not-call list alternative represents a careful balancing of the privacy interests of residential telephone subscribers against the commercial speech rights of telemarketers and the continued viability of a valuable business service. For these reasons we, conclude that the company-specific do-not-call list is the alternative that best accomplishes the purposes of the TCPA.
The TCPA also permits states to initiate a civil action in a federal district court against a telemarketer who engages in a pattern or practice of violations of the TCPA. ... Finally, consumers may request that the commission take enforcement action regarding violations of Section 227, consistent with the Commission's existing complaint procedures.
3. In adopting rules to implement the TCPA, the Commission noted Congress' instruction that "[i]ndividuals' privacy rights, public safety interests, and commercial freedoms of speech and trade must be balanced in a way that protects the privacy of individuals and permits legitimate telemarketing practices." Congress pointed out that in 1990, more than 30,000 telemarketing firms, employing more than 18 million Americans, generated more than $400 billion in sales. But because unrestricted telemarketing can be an invasion of consumer privacy, and even a risk to public safety, Congress found that a federal law is necessary to control telemarketing practices.
The figures we found in Section 2 of the Act actually stated that more than 30,000 businesses use over 300,000 solicitors to call more than 18 million Americans every day. It would to require a broad interpretation to call all these businesses ``telemarketing firms'', and very broad interpretation to consider receiving a telemarketing call as employment. (Although if 14% of the population really were dedicated to making telemarketing calls, answering the phone might well become a full-time job.) We assume that the FCC's statement above was based on some simple confusion.
4. ...This order addresses arguments made by parties seeking reconsideration or clarification of various matters addressed in the Report and Order. It seeks to balance the concern that consumers' privacy be protected with the imperative that telemarketing practices not be unreasonably hindered.
6. ...The DMA and the NAA contend that telemarketers should not be required to give a telephone number or address during a telephone solicitation... DMA's concern over telemarketers' ability to comply with the identification requirement in instances in which the call is terminated by the resident prior to completion of the identification announcement is not persuasive. As discussed above, the telemarketer bears the burden of ensuring that identification is given. We recognize that a resident's hang-up on a solicitation call could thwart telemarketer identification...
8. Subscriber Identification. Commission rules require that telemarketers record do-not- call requests by placing the subscriber's name and telephone number on the "do-not-call list." NAA states that many residents do not wish to give their names when receiving telephone solicitations. It requests that in such instances telemarketers be allowed to record only a phone number and to make a notation when a resident does not wish to give a name to a telemarketer.
9. Section 64.1200(e)(2)(iii) contemplates that telemarketers request the called party's name when making a do-not-call notation. The rule does not require the called party to provide a name. Interpreting the rule more narrowly would defeat the objective of protecting consumer privacy. Therefore, we do not believe it necessary to modify the requirement that solicitors record both a name and number. Telemarketers will not be in violation of the rule so long as they request the called party's name. Indeed, we expect telemarketers to respect the privacy of those who specifically refuse to give a name by simply making a notation to that effect. Nevertheless, as a general rule telemarketers can avoid duplication or confusion in maintaining do-not-call lists if each telephone number is associated with a name to ensure accuracy. Recording callers' names will assist in proving violations of the TCPA, and we note that no consumers, or representative of consumers, shares NAA's concerns in the record before us.
15. Decision. We will modify the requirement that a do-not-call request be honored indefinitely, to require that the request be honored for a period of 10 years. Our rules should reflect the fact that residential telephone numbers are recycled. We believe it is reasonable to expect telemarketers to honor do-not-call requests for a period of 10 years. While we acknowledge that a 10-year requirement has not been suggested by any of the parties, we believe that a five-year period, as proposed by DMA and Olan Mills, would not adequately account for the privacy needs of residential telephone subscribers. We also appreciate the concerns of Congressman Markey, but believe the modified 10-year retention requirement will best preserve the careful balance we seek to maintain between residential subscriber privacy and reasonable telemarketing practices. We will monitor the effectiveness of the 10-year retention requirement and readdress the issue if necessary at a later date. Our purpose in prescribing do-not-call lists is to ensure that a consumer's request not to be called is respected. A call made by a telemarketer solely to determine whether a subscriber wishes to receive a telephone solicitation is, in effect, a solicitation from that telemarketer, and accordingly would violate that subscriber's do-not-call request.
38. Identification requirements - Telephone number. We reiterate our intent that residential subscribers may not be required to pay for procedures to protect them from unwanted solicitations. Numbers provided for identification purposes in telephone solicitations may not be numbers that require the recipient of a solicitation to incur more than nominal costs for making a do-not-call request (i.e., for which charges exceed costs for transmission of local or ordinary station-to-station long distance calls). In addition to prohibiting charges to protect residential privacy, the TCPA and our rules prohibit calls that impose costs on the called party (e.g., calls to paging and cellular numbers, facsimile advertisements). We now modify the language of Sections 64.1200(e)(2)(iv) and 68.318(c)(3) of the Commission's rules to ensure that the intent of the TCPA and our rules is not thwarted.