05-11910. Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991

AGENCY:

Federal Communications Commission.

ACTION:

Proposed rule; petition for declaratory ruling, comments requested.

SUMMARY:

In this document, the Commission seeks comment on a petition for declaratory ruling (“Petition”) filed by Mark Boling, asking the Commission to declare that particular provisions of the California Consumer Legal Remedies Act (“CLRA”), as applied to interstate telephone calls, are not preempted by the Telephone Consumer Protection Act (“TCPA”).

DATES:

Comments are due on or before July 15, 2005, and reply comments are due on or before August 4, 2005.

ADDRESSES:

You may submit comments, identified by CG DOCKET NO. 02-278, DA 05-1348, by any of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
• Federal Communications Commission's Web Site: http://www.fcc.gov/​cgb/​ecfs/​. Follow the instructions for submitting comments.
• People with Disabilities: Contact the FCC to request reasonable accommodations (accessible format documents, sign language interpreters, CART, etc.) by e-mail: [e-mail] or phone: [phone] or TTY: [phone].

For detailed instructions for submitting comments and additional information on the rulemaking process, see the SUPPLEMENTARY INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT:

Kelli Farmer, Consumer Policy Division, Consumer & Governmental Affairs Bureau, [phone] (voice), [e-mail].

SUPPLEMENTARY INFORMATION:

This is a summary of the Commission's document, DA 05-1348, released May 13, 2005. The full text of this document and copies of 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]. This document may be purchased from the Commission's duplicating contractor, Best Copy and Printing (BCPI), Inc., Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554. Customers may contact BCPI, Inc. at their Web site: http://www.bcpiweb.com or by calling 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 [e-mail] or call the Consumer & Governmental Affairs Bureau at [phone] (voice) or [phone] (TTY). This document can also be downloaded in Word or Portable Document Format (PDF) at http://www.fcc.gov/​cgb/​policy.

On July 3, 2003, the Commission released a Report and Order (2003 TCPA Order) revising its rules under the TCPA, published at 68 FR 44144, July 25, 2003. In the 2003 TCPA Order, the Commission determined that it would consider any alleged conflicts between State and Federal requirements and the need for preemption on a case-by-case basis. Accordingly, the Commission instructed any party that believes a State law is inconsistent with § 227 or the Commission's rules to seek a declaratory ruling from the Commission. Mr. Boling's Petition seeks such a declaratory ruling. When filing comments, please reference CG Docket No. 02-278, DA 05-1348. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS) or by filing paper copies. See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121, May 1, 1998. Comments filed through the ECFS can be sent as an electronic file via the Internet to http://www.fcc.gov/​e-file/​ecfs.html. Generally, only one copy of an electronic submission must be filed. In completing the transmittal screen, commenters should include their full name, U.S. Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions for e-mail comments, commenters should send e-mail to [e-mail], and should 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 reply.

Parties who choose to file by paper must send an original and four (4) copies of each filing. Filings can be sent by hand or messenger delivery, by electronic media, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although we continue to experience delays in receiving U.S. Postal Service mail). The Commission's contractor, Natek, Inc., will receive hand-delivered or messenger-delivered paper filings or electronic media 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 and electronic media sent by 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 mail, Express Mail, and Priority Mail should be addressed to 445 12th Street, SW., Washington, DC 20554. All filings must be addressed to the Commission's Secretary, Marlene H. Dortch, Office of the Secretary, Federal Communications Commission, 445 12th Street, SW., Room TW-B204, Washington, DC 20554.

This proceeding shall be treated as a “permit but disclose” proceeding in accordance with the Commission's ex parte rules, 47 CFR 1.1200. Persons making oral ex parte presentations are reminded that memoranda summarizing the presentations must contain summaries of the substances 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).

Synopsis

On August 11, 2003, Mark Boling filed a Petition “individually and on behalf of California consumers and California businesses” asking the Commission to declare that particular provisions of the California Consumer Legal Remedies Act (“CLRA”), as applied to interstate telephone calls, are not preempted by the Telephone Consumer Protection Act (“TCPA”). The Commission seeks comment on the issues raised in the Petition.

Mr. Boling states that he has acted as a party, representative party, or legal representative in numerous California lawsuits in which defendants have asserted as a defense that particular provisions of the CLRA are preempted by the TCPA. Mr. Boling indicates that the CLRA, as set forth in California Civil Code § 1770(a), contains a list of unlawful practices. He notes that California Civil Code § 1770(a)(22)(A), in particular, makes unlawful the “dissemination of an unsolicited prerecorded message by telephone without an unrecorded, natural voice first informing the person answering the telephone of the name of the caller or the organization being represented, and either the address or the telephone number of the caller, and without obtaining the consent of that person to listen to the prerecorded message.”

Mr. Boling further notes that § 227(b)(1)(B) of the Communications Act, as amended by the TCPA, makes it unlawful for any person “to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call is initiated for emergency purposes or is exempted by rule or order by the Commission under paragraph (2)(B).” Asserting that this provision of Federal law poses no conflict with the relevant provisions of the CLRA, Mr. Boling explains that:

In this instance, the CLRA controls dissemination of a prerecorded message and does not control the telephone call containing that message. The TCPA controls the call, and not the dissemination of the message. Therefore, when a party initiates the unlawful call it violates the TCPA and when the unlawful message is received in California it violates the CLRA.

As such, Mr. Boling asserts that “no conflict exists in the enforcement of the TCPA or the CLRA as it relates to the activities set forth in this action, as the actionable conduct in each law is separately defined.” Finally, Mr. Boling asserts that, because the practices at issue in the Petition do not pertain to technical and procedural requirements for identification of senders of telephone facsimile messages or autodialed artificial or prerecorded voice messages, as described in section 227(d) of the TCPA, they are not subject to § 227(e) of the TCPA.

Accordingly, Mr. Boling asks the Commission to issue a declaratory ruling that the identified provisions of the California Civil Code, as applied to interstate calling, are not preempted by the TCPA.

Federal Communications Commission.

Monica Desai,

Acting Chief, Consumer & Governmental Affairs Bureau.