2010-15950. Consumer & Governmental Affairs Bureau Seeks Comment on a Petition for Expedited Clarification and Declaratory Ruling, Filed by Global Tel*Link Corporation (Global Tel), Concerning Applicability of the Telephone Consumer Protection Act ...

AGENCY:

Federal Communications Commission.

ACTION:

Notice.

SUMMARY:

In this document, the Commission seeks comment on Global Tel*Link Corporation's Petition for Expedited Clarification and Declaratory ruling concerning applicability of the Telephone Consumer Protection Act and its rules. Specifically, Global Tel asks the Commission to declare that the TCPA and associated FCC rules are inapplicable to Global Tel's use of automatic notifications before completing calls to certain persons dialed by prison inmates.

DATES:

Comments are due on or before July 15, 2010. Reply comments are due on or before July 26, 2010.

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://fjallfoss.fcc.gov/​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 FCC continues to experience delays in receiving U.S. Postal Service mail). All filings must be addressed to the Commission's Secretary, Marlene H. Dortch, Office of the Secretary, Federal Communications Commission.
• All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St., SW., Room TW-A325, Washington, DC 20554. The filing hours 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 March 4, 2010, Global Tel*Link Corporation (Global Tel) filed a Petition for Expedited Clarification and Declaratory Ruling regarding applicability of the Telephone Consumer Protection Act (TCPA) and Federal Communications Commission (FCC or Commission) rules to its calling practices.

See Petition for Expedited Clarification and Declaratory Ruling, filed by Global Tel*Link Corporation on March 4, 2010 (Petition). The TCPA, Public Law 102-243, 105 Stat. 2394 (1991), is codified at 47 U.S.C. 227.

This is a summary of the Commission's Public Notice DA 10-997, which seeks comment on Global Tel's petition. Pursuant to 47 CFR 1.415 and 1.419 of the Commission's rules, interested parties may file comments and reply comments 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 10-997 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 10-997 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 10-997 and any subsequently filed documents in this matter may be found by searching ECFS at http://fjallfoss.fcc.gov/​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 10-997 can also be downloaded in Word or Portable Document Format (PDF) at: http://www.fcc.gov/​cgb/​policy/​.

Synopsis

On March 4, 2010, Global Tel*Link Corporation (Global Tel) filed a Petition for Expedited Clarification and Declaratory Ruling regarding applicability of the Telephone Consumer Protection Act (TCPA) and Federal Communications Commission (FCC or Commission) rules to its calling practices. Specifically, Global Tel asks the Commission to declare that the TCPA and associated FCC rules are inapplicable to Global Tel's use of automatic notifications before completing calls to certain persons dialed by prison inmates.

According to the Petition, correctional facilities contract with Global Tel to provide out-bound communication services for incarcerated persons. When an inmate without a pre-paid calling card or debit calling account sanctioned by the correctional facility attempts to call an individual for the first time, and that individual is not served by a local exchange carrier with which Global Tel has a billing arrangement or the inmate has dialed a called party's cell phone, the call cannot be completed unless and until a billing arrangement with the called party is established. Once the inmate dials the desired number, Global Tel captures the number and initiates an automated interactive voice response notification to inform the called party that an incarcerated person is attempting to contact him or her and the called party must establish an account in order to receive the call. Global Tel makes three attempts to notify the called party to establish an account to receive inmate calls. Without the relief requested in the Petition, according to Global Tel, it is exposed to risk of unnecessary litigation from persons bringing private actions under the TCPA.

In relevant part, the TCPA regulates the use of automated telephone equipment. Section 227(b)(1)(B) of the TCPA makes it unlawful to place a non-emergency telephone call to a residential line “using an artificial or prerecorded voice” without the recipient's consent unless the call is “exempted by rule or order of the Commission under paragraph (2)(B).” Paragraph (2)(B), in turn, authorizes the Commission to enact limited exemptions from this ban, including an exemption for calls “that are not made for a commercial purpose” or “do not include the transmission of any unsolicited advertisement.” Further, section 227(b)(1)(A) of the TCPA prohibits the use of any automatic telephone dialing system or an artificial or prerecorded voice to call any telephone number assigned to a cellular telephone service absent an emergency purpose or the “prior express consent of the called party.” Section 227(b)(2)(C) gives the Commission authority to exempt from this prohibition only those “calls to a telephone number assigned to a cellular telephone service that are not charged to the called party, subject to such conditions as the Commission may prescribe as necessary in the interest of the privacy rights the provision is intended to protect.”

Global Tel presents several arguments to support its request for a declaratory ruling. First, Global Tel argues that the automated notification calls that it places to inform a called party that an incarcerated person has dialed the party's telephone number and that a payment account is required to receive the call are not solicitation or telemarketing calls, but instead simply inform a called party how to establish an account for the purpose of receiving calls from an inmate. Global Tel asserts its notification calls should be exempt pursuant to section 227(b)(2)(B) of the TCPA because the calls are not made for a commercial purpose and do not transmit an unsolicited advertisement. Global Tel further asserts that the Commission's ruling that autodialed and prerecorded message 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 makes its prerecorded message calls to parties called by inmates permissible. Global Tel contends that the inmate possesses the prior express consent of the called party to be contacted at the number provided. Global Tel states that its interactive voice recognition platform is neither a predictive dialer nor a form of autodialing as contemplated by the TCPA. Lastly, Global Tel argues that although the TCPA should not apply to its notification calls and practices, these calls and practices meet the technical and procedural standards for artificial or prerecorded voice systems set forth in section 227(d)(3) of the TCPA.

Federal Communications Commission.

Colleen Heitkamp,

Division Chief, Consumer and Governmental Affairs Bureau.