E6-5889. Notice of Public Information Collection(s) Being Submitted for Review to the Office of Management and Budget

April 12, 2006.

SUMMARY:

The Federal Communications Commission, as required by the Paperwork Reduction Act (PRA) of 1995, Public Law 104-13, and as part of its continuing effort to reduce paperwork burden, invites the general public and other Federal agencies to take this opportunity to comment on the following information collection(s). An agency may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act (PRA) that does not display a valid control number. Comments are requested concerning (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimate; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.

DATES:

Written Paperwork Reduction Act (PRA) comments should be submitted on or before May 19, 2006. If you anticipate that you will be submitting PRA comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.

ADDRESSES:

Direct all Paperwork Reduction Act (PRA) comments to Leslie F. Smith, Federal Communications Commission, Room 1-A804, 445 12th Street, SW., DC 20554 or via the Internet to [e-mail]. If you would like to obtain or view a copy of this revised information collection, you may do so by visiting the FCC PRA Web page at: http://www.fcc.gov/​omd/​pra.

FOR FURTHER INFORMATION CONTACT:

For additional information or copies of the information collection(s), contact Leslie F. Smith at [phone] or via the Internet at [e-mail].

SUPPLEMENTARY INFORMATION:

OMB Control Number: 3060-1088.

Title: Rules and Regulations Implementing the Telephone Consumer Protection Act (TCPA) of 1991,

Report and Order and Third Order on Reconsideration, CG Docket No. 05-338, FCC 06-42.

Form Number: N/A.

Type of Review: Revision of a currently approved collection.

Respondents: Individuals or households; Business and other for-profit entities; and Not-for-profit institutions.

Number of Respondents: 5,000,000 (4 million facsimile advertisement senders and 1,000,000 complainants.

Number of Responses: 5,160,000 responses.

Estimated Time per Response: 15 seconds to 1 hour.

Frequency of Response: On occasion, monthly, and annual reporting requirements; Recordkeeping; Third party disclosure.

Total Annual Burden: 13,180,000 hours.

Total Annual Cost: $60,000,000.

Privacy Impact Assessment Implication(s): Yes.

Needs and Uses: On April 5, 2006, the Commission adopted a Report and Order and Third Order on Reconsideration, In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991; Junk Fax Prevention Act of 2005, CG Docket Nos. 02-278 and 05-338, FCC 06-42, which modified the Commission's facsimile advertising rules to implement the Junk Fax Prevention Act.

With the exception of item (3) below, the information collection requirements are identical to those proposed and approved by OMB on March 15, 2006.

(1) Opt-out Notice and Do-Not-Fax Requests Recordkeeping. The rules require senders of unsolicited facsimile advertisements to include a notice on the first page of the facsimile that informs the recipient of the ability and means to request that they not receive future unsolicited facsimile advertisements from the sender. The notice must be clear and conspicuous (apparent to a reasonable consumer); separate from the advertising copy or other disclosures; and placed at either the top or bottom of the fax. In addition, the Notice must include a domestic contact telephone, a domestic facsimile machine number for the recipient to transmit such a request to the sender, and a cost-free mechanism for a recipient to transmit a request pursuant to such notice to the sender of the unsolicited advertisement. The cost-free mechanism must include one of the following: a toll-free telephone number; a toll-free facsimile number; a Web site address; or email address. A local telephone number may be considered a cost-free mechanism so long as the advertisements are sent to local customers for whom a call to that number would not result in long distance or other separate charges. Finally, the telephone and facsimile numbers and cost-free mechanism must permit an individual or business to make such a request at any time on any day of the week. Recipients of fax advertisements must use one of the opt-out methods identified on the sender's facsimile so as not to impair an entity's ability to account for all requests and process them in a timely manner. Senders must comply with an opt-out request within the shortest reasonable time of such request, not to exceed 30 days.

(2) Established Business Relationship Recordkeeping. In addition, the Junk Fax Prevention Act provides that the sender, e.g., a person, business, or a nonprofit/institution, is prohibited from faxing an unsolicited advertisement to a facsimile machine unless the sender has an “established business relationship” with the recipient. The Commission amended its rules to comply with the Junk Fax Prevention Act regarding the express recognition of an EBR exemption. The Commission did not limit the duration of the EBR for fax advertising. There is no ongoing reporting requirement associated with these rules. If, however, a complaint is filed involving the existence of an EBR, the facsimile sender bears the burden of proof as to the validity of an EBR, or the possibility that it was formed prior to July 9, 2005. The rules do not require that any specific records be kept by fax senders. Instead, they may use records kept in the usual course of business showing an EBR, such as purchase agreements, sales slips, applications, and inquiry records.

(3) Facsimile Number Recordkeeping. The Junk Fax Prevention Act provides that an EBR alone does not entitle a sender to fax an advertisement to an individual or business. The fax number must also be provided voluntarily by the recipient. The Commission's amended rules provide that if a sender relies on an EBR for permission to fax an advertisement, the sender must have obtained the number of the telephone facsimile machine through the voluntary communication of such number, within the context of such EBR or through a directory, advertisement, or site on the Internet to which the recipient voluntarily agreed to make available its facsimile number. It would be permissible for the sender to obtain the number directly from the recipient (e.g., through the recipient's letterhead, business cards, application, membership renewal form). It would be permissible for the sender to obtain the number from the recipient's own directory, advertisement, or internet site, unless the recipient has noted on such materials that it does not accept unsolicited advertisements at the facsimile number in question. On the other hand, if the sender obtains the number from sources of information compiled by third parties—e.g., membership directories, internet databases—the sender must take reasonable steps to verify that the recipient consented to have the number listed, such as calling or emailing the recipient. For an EBR in existence prior to July 9, 2005, there is a presumption that if a valid EBR existed prior to July 9, 2005, the sender had the facsimile number prior to that date as well. There is no ongoing reporting requirement associated with these rules. If, however, a complaint is filed involving how the facsimile number was obtained, the sender bears the burden of proof that the number was voluntarily provided by the recipient.

(4) Express Invitation or Permission Recordkeeping. In the absence of an EBR, the sender must obtain the prior express invitation or permission from the consumer before sending the facsimile advertisement. When a consumer has made an opt-out request of the sender, the sender must demonstrate that the consumer subsequently gave his express permission to receive faxes. Such express invitation or permission may be provided orally or in writing, including through electronic methods. While there is no ongoing recordkeeping or reporting requirement associated with this rule, if a complaint is filed, the facsimile sender must be prepared to provide clear and convincing evidence of the existence of such permission.

Federal Communications Commission.

William F. Caton,

Deputy Secretary.