E9-5823. Consumer and Governmental Affairs Bureau Seeks Comment on Paul D.S. Edwards Petition for Expedited Clarification and Declaratory Ruling Concerning the Telephone Consumer Protection Act (TCPA) Rules

AGENCY:

Federal Communications Commission.

ACTION:

Notice.

SUMMARY:

In this document, the Commission seeks comment on a petition for an expedited clarification and declaratory ruling, filed by Paul D.S. Edwards (Edwards), asking whether a creditor may place autodialed or prerecorded message calls to a telephone number associated with wireless service that was provided to the creditor initially as a telephone number associated with landline service.

DATES:

Comments are due on or before April 2, 2009. Reply comments are due on or before April 13, 2009.

ADDRESSES:

Interested parties may submit comments and reply comments identified by [CG Docket No. 02-278], by any of the following methods:

• Electronic Filers: Comments may be filed electronically using the Internet by accessing the Commission's Electronic comment Filing System (ECFS), through the Commission's Web site: http://www.fcc.gov/​cgb/​ecfs/​, or the Federal eRulemaking Portal: http://www.regulations.gov. Filers should follow the instructions provided on the Web site for submitting comments.
• For ECFS filers, in completing the transmittal screen, filers should include their full name, U.S. Postal Service mailing address, and the applicable docket number, which in this instance is [CG Docket No. 02-278]. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions, filers should send an e-mail to [e-mail], and include the following words in the body of the message, “get form <your e-mail address>.” A sample form and directions will be sent in response.
• Paper Filers: Parties who choose to file by paper must file an original and four copies of each filing. Filings can be sent by hand or messenger delivery, 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). All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
• The Commission's contractor will receive hand-delivered or messenger-delivered filings 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 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, Express, and Priority mail should be addressed to 445 12th Street, SW., Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT:

Karen Johnson, Consumer and Governmental Affairs Bureau, Policy Division, at [phone] (voice), or e-mail [e-mail].

SUPPLEMENTARY INFORMATION:

On January 12, 2009, Edwards filed a petition for expedited clarification and declaratory ruling concerning the Telephone Consumer Protection Act. See Petition for Expedited Clarification, filed by Paul D. S. Edwards, January 12, 2009 (Petition). This is a summary of the Commission's Public Notice DA 09-542. Pursuant to 47 CFR 1.415 and 1.419 of the Commission's rules, interested parties may file comments and reply comments on Edwards's Petition on or before the dates indicated above. This proceeding shall be treated as a permit-but-disclose proceeding under the ex parte rules, which are codified at 47 CFR 1.1200(a) and 1.1206. Therefore, ex parte presentations will be allowed but must be disclosed in accordance with the requirements of 1.1206(b) of the Commission's Rules, 47 CFR 1.1206(b). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentations must contain summaries of the substance 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 1.1206(b) of the Commission's rules, 47 CFR 1.1206(b).

The full text of document DA 09-542 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, [phone]. Document DA 09-542 and any subsequently filed documents in this matter may also be purchased from the Commission's duplicating contractor at the contractor's Web site, www.bcpiweb.com, or by calling [phone]. Furthermore, document DA 09-542 and any subsequently filed documents in this matter, and a copy of the underlying Petition may be found by searching ECFS at http://www.fcc.gov/​cgb/​ecfs (insert [CG Docket No. 02-278] into the Proceeding block).

To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an e-mail to [e-mail] or call the Consumer and Governmental Affairs Bureau at [phone] (voice), [phone] (TTY). Document DA 09-542 can also be downloaded in Word or Portable Document Format (PDF) at: http://www.fcc.gov/​cgb/​policy/​headlines.html.

Synopsis

On January 12, 2009, Edwards filed a petition for an expedited clarification and declaratory ruling regarding the Commission's rules under the TCPA. Specifically, Edwards asks the Commission to clarify whether a creditor may place autodialed or prerecorded message calls to a telephone number associated with wireless service that was provided to the creditor initially as a telephone number associated with landline service. Section 64.1200(a)(1)(iii) of the Commission's rules prohibits the initiation of “any telephone call (other than a call made for emergency purposes or made with the prior express consent of the called party) using an automatic telephone dialing system or an artificial or prerecorded voice, to any telephone number assigned to * * * cellular telephone service. * * *” The Commission concluded that such 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.

Edwards asserts that the Commission's ruling permits debt collection calls to a wireless telephone number only when the consumer, in that instance, provides the wireless telephone number to the creditor. Edwards contends that when the creditor is initially provided a “landline” telephone number, and subsequently that “landline” number is ported to a cellular telephone, an established business relationship, “prior express consent,” or other exemption from section 227(b)(1)(A)(iii) of the TCPA is not created. Edwards concludes that compliance with the TCPA requires that the consumer must have provided the creditor a telephone number assigned to a wireless service in order for calls to the wireless telephone number to be permissible. Accordingly, the Commission seeks comment on Edwards's petition.

Federal Communications Commission.

Erica McMahon,

Division Chief, Consumer and Governmental Affairs Bureau.