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Thus, we are not persuaded  xDthat the TCPA precludes the use of prerecorded messages to make solicitations to a party with whom the  xtelemarketer has an established business relationship. In view of the support in the record for the  xtexemption and the legislative history, we conclude that the TCPA permits an exemption for established  S' xbusiness relationship calls from the restriction on artificial or prerecorded message calls to residences.? 6 yO'Ѝ We emphasize, however, that a business may not make telephone solicitations to an existing or former customer who has asked to be placed on that company's do-not-call list. A customer's request to be placed on the company's do-not-call list terminates the business relationship between the company and that customer for the  yO.'purpose of any future solicitation. See n. 47, supra.  xQWe decline to create more specific business relationship exemptions as requested by several commenters,  xDsuch as utility companies, in favor of an exemption broad enough to encompass a wide range of business  S' xIrelationships. Finally, consistent with our conclusions at para. 24 supra, we find that a consumer's  x}established business relationship with one company may also extend to the company's affiliates and  S'subsidiaries.@  6 yO#'Ѝ See House Report, 102-317, 102d Cong., 1st Session (1991), pp. 13-17, noting that solicitations by persons or entities affiliated with businesses which have an established business relationship with the consumer would be permissible in certain circumstances, but that companies should honor requests not to call again notwithstanding any business relationship with the consumer.   Sl'"lh@,l(l(,,"Ԍ S' e 35.` ` Many commenters concur with our tentative conclusion that a business relationship should  x^be defined broadly rather than narrowly (e.g., an exchange of consideration), but that it cannot be formed  S' xsolely on the basis of a prior solicitation.rA6 yO'Ѝ See, e.g., comments of AMEX, TWIr Based on the record in this proceeding and the legislative  Sg' x7intent to address a broad range of business relationships in the rules, we adopt our tentative conclusion.BgX6 yO_'Ѝ See, e.g., House Report 102-317, 102d Cong., 1st Session (1991), pp. 13- 17.  S4' xAccordingly, the rules define "established business relationship" as a prior or existing relationship formed  xby a voluntary two-way communication between the caller and the called party, which relationship has  xpnot been previously terminated by either party. The relationship may be formed with or without an  xexchange of consideration on the basis of an inquiry, application, purchase or transaction by the residential  Sh' xtelephone subscriber regarding products or services offered by the telemarketer.&Ch6 yO 'Ѝ As we noted in para. 31, supra, a party making an inquiry cannot be considered to have given prior express consent to future autodialed or prerecorded message calls simply because that party's number has been "captured" by an ANI device or similar system. Nor can a consumer inquiry be considered to create a business relationship where the consumer's number has been captured absent that consumer's express invitation or permission to be contacted at the captured number. & A broad definition of  xMthe business relationship can encompass a wide variety of business relationships (e.g., publishers with  xsubscribers, credit agreements) without eliminating legitimate relationships not specifically mentioned in  xthe record. Accordingly, we reject proposals to define a business relationship by reference to consideration  xor to a period of time because such narrow definitions may exclude legitimate categories of business relationships.  S ' e W36.` ` Debt Collection Calls. In the NPRM, we observed that all debt collection circumstances  x7involve a prior or existing business relationship. In addition, we tentatively concluded that debt collection  x<calls are exempt from the TCPA's prohibitions against prerecorded message calls because they are  xxcommercial calls which do not convey an unsolicited advertisement and do not adversely affect residential subscriber rights.  S' e z37.` ` Commenters generally support an exemption for debt collection calls. D6 yO 'Ѝ See comments of ABA; American Financial Services Association (AFSA); the Coalition; Citicorp; CBA; Gannett; Household International; National Retail Federation; Teknekron; and Wells Fargo.  Commenters  x^concur that debt collection calls are exempt as calls to parties with whom the caller has a prior or existing  x@business relationship, and further argue that debtors have given prior express consent to such calls by  S8' xincurring a debt.E8 6 yO'Ѝ See comments of ACA; AFSA; Ameritech; Citicorp; CBA; Household International; Ohio Student Loan Commission; and Wells Fargo. AFSA requests the Commission to explicitly exempt calls where terms of a credit  xagreement are not met. Moreover, AFSA argues that debt collection calls should be exempted as  x*commercial calls not transmitting an unsolicited advertisement and not adversely affecting privacy rights.  S' xA number of commenters urge the Commission to include language clarifying that calls made on behalf  x&of a creditor or other entity attempting to collect a debt are exempted. CSC opposes a debt collection  xEexemption, arguing that such an exemption would increase the potential for harassment. Other  xcommenters maintain that prerecorded message calls are the least intrusive means of debt collection, and"H E,l(l(,,"  S'that elimination of this option could lead to higher transaction and loan servicing costs.F6 yOh'Ѝ See comments of the Coalition; CBA; Digital Systems International; and the National Retail Federation.  S'  S' e =38.` ` Many commenters request clarification of the identification requirements for artificial or  xprerecorded voice messages because these requirements appear to conflict with the requirements of the  x3FDCPA. The FDCPA prohibits debt collection agents from revealing the identity of the creditor or the  xpurpose of the call to third parties, and that a debt collector determine that the called party is the debtor  S' xbefore revealing the purpose of the call.G X6 yO'Ѝ Debt collectors subject to the FDCPA are prohibited from conveying any information to third parties, even inadvertently, with respect to the existence of a debt. 15 U.S.C.  1629b-c. The FDCPA requires a collector initiating a call answered by a third party to identify himself by name but not to disclose the name of  yO 'his employer unless asked. 15 U.S.C.  1629b(1). See comments of ACA.  If the call is delivered using an artificial or prerecorded voice  xmessage, the message must be fashioned so that the purpose of the call is not revealed to a third party.  xkThe TCPA, on the other hand, requires prerecorded messages to identify the individual, business, or other  xxentity placing the call at the beginning of the message. Some commenters urge the Commission to provide  xspecific language for use in prerecorded messages. Other commenters simply urge the Commission not  x^to adopt requirements which would conflict with the requirements of the FDCPA. The ABA suggests that  xthe Commission adopt language to the effect that no requirements under  227(d)(3) of the TCPA be deemed to preempt the requirement of other federal or state laws.  S ' e 39.` ` Upon consideration of these comments, we conclude that an express exemption from the  xQTCPA's prohibitions for debt collection calls is unnecessary because such calls are adequately covered by  x^exemptions we are adopting here for commercial calls which do not transmit an unsolicited advertisement  xQand for established business relationships. As proposed in the NPRM, these exemptions would also apply  xwhere a third party places a debt collection call on behalf of the company holding the debt. Whether the  xcall is placed by or on behalf of the creditor, prerecorded debt collection calls would be exempt from the  x<prohibitions on such calls to residences as: (1) calls from a party with whom the consumer has an  xestablished business relationship, and (2) commercial calls which do not adversely affect privacy rights  Sk' xand which do not transmit an unsolicited advertisement.xHXk@6 yOK'Ѝ A creditor may solicit a residential subscriber using a prerecorded message as long the established business relationship has not been previously severed by the debtor. This interpretation reflects the legislative intent expressed in House Report, 102-317, 102d Cong., 1st Session (1991), pp. 14-17. x With respect to concerns regarding compliance  xMwith both the FDCPA and our rules in prerecorded message calls, we emphasize that the identification  xrequirements will not apply to debt collection calls because such calls are not autodialer calls (i.e., dialed  xusing a random or sequential number generator) and hence are not subject to the identification  S' xIrequirements for prerecorded messages in 64.1200(e)(4) of our rules.I` 6 yO 'Ѝ See comments of ABA, ACA. See also paras. 25-26 supra. Accordingly, we reject as  xkunnecessary proposals that we provide specific language for use in prerecorded debt collection messages.  xIn any event, to the extent any conflicts exist, compliance with both statutes is possible through the use of live calls.  S' e S40.` ` Tax-Exempt Nonprofit Organizations and Non-Commercial Calls. In the NPRM, we  xsought comment on whether tax-exempt nonprofit organizations should be exempt from the TCPA's  xIprohibitions on prerecorded message calls to residences either because such calls are not made for  S' xcommercial purposes, or because they are commercial calls which do not adversely affect privacy interests" I,l(l(,,"  S' xand which do not transmit an unsolicited advertisement. See  64.1200(a)(2). We observed that the TCPA  x^seeks primarily to protect subscribers from unrestricted commercial telemarketing activities. Commenters  xgenerally support the proposed exemption. However, a number of commenters object to such exemptions  xfor calls from nonprofit organizations, arguing that such calls are also a nuisance and an invasion of  S4' xxprivacy.vJ46 yO'Ѝ See, e.g., comments of NCL and OPUC.v The legislative history of the TCPA contrasts calls made by tax-exempt nonprofit organizations  xwith commercial calls and indicates that commercial calls have by far produced the greatest number of  S' xkcomplaints about unwanted calls.K X6 yO'Ѝ See, House Report 102-317 at 16-17 stating that "most unwanted telephone solicitations are commercial in nature" and that "the two main sources of consumer problems--high volume of solicitations and unexpected  yOV 'solicitations-- are not present in solicitations by nonprofit organizations." See also, Senate Report 102-177 at 6, to accompany Bill S. 1410. 102d Cong., (1991).  Moreover, no evidence has been presented in this proceeding to show  xthat non-commercial calls represent as serious a concern for telephone subscribers as unsolicited  x7commercial calls. Accordingly, based on the comments and the legislative history of TCPA, we conclude  xthat tax-exempt nonprofit organizations should be exempt from the prohibition on prerecorded message  S' xQcalls to residences as non-commercial calls. Therefore, we will not seek additional authority to curb calls by tax-exempt nonprofit organizations.  Si ' e 41.` ` Some commenters urge the Commission to expressly exempt specific categories of  x^additional organizations such as market research or polling organizations, whose activities are not invasive  S ' xof residential privacy rights and were not intended to be prohibited by the TCPA.L @6 yO'Ѝ See comments of Congressman Brewster and Public Forum. We find that the  xQexemption for non-commercial calls from the prohibition on prerecorded messages to residences includes  xcalls conducting research, market surveys, political polling or similar activities which do not involve  Sj' xcsolicitation as defined by our rules.fMXj6 yO'Ѝ See para. 45, infra., emphasizing that market research or surveys would be prohibited under  227 of the TCPA and  64.1200(a)(1) if the called party were charged for the call without the party's prior express consent or if such calls contain unsolicited advertisements.f We thus reject as unnecessary the proposal to create specific exemptions for such activities.  S'4. Clarifications.  Sk' e J42.` ` Elderly Home. The TCPA prohibits autodialer and prerecorded message calls to "elderly  xhomes" absent prior express consent or unless it is an emergency call. AFSA requests clarification of the  xterm, as it appears in  227(b)(1)(A)(ii) and in the proposed rules,  64.1200(a)(1)(ii), noting that the term  xis sufficiently ambiguous to include the private homes of elderly telephone subscribers as well as health  xcare establishments. Since the TCPA does not define the term, we must apply the plain meaning of the  xwords in interpreting the statute. This term clearly refers to a residential setting for the elderly, but also  xsuggests the vernacular for institutions like nursing homes and other long term health care facilities. Its  xplacement in a section which refers to other health care facilities rather than in the following section  xregarding calls to residential telephone subscribers also suggests that the words are meant to describe an  xtinstitutional setting in which the elderly reside, as opposed to any reference to the private homes of the  xelderly. Given the placement of this term in the statute and the lack of evidence in the legislative history  xsuggesting any contrary meaning, we conclude that the words "elderly home" do not refer to the private  xhomes of the elderly, and that the words are intended to include in the general prohibition against" M,l(l(,,"  xVautodialer and artificial or prerecorded voice messages calls made to health care facilities and those institutions which house primarily elderly persons.  Sg' e J43.` ` Radio Common Carriers. The TCPA prohibits autodialer and prerecorded message calls  xto radio common carrier services or any service for which the called party is charged for the call.   x227(b)(1)(iii). The Cellular Telecommunications Industry Association (CTIA) and Centel Corporation urge  xthe Commission to exempt from the prohibitions on autodialers and prerecorded messages those calls made  xby cellular carriers to cellular subscribers (as part of the subscriber's service) for which the called party  xis not charged. These commenters point out that cellular customers are not charged for calls which, for  x*example, monitor service or issue warnings to "roamers" that they are moving out of the carrier's service  xZarea. Therefore, such calls should either be exempted from the prohibitions of  64.1200(a)(1)(iii), or should be interpreted as not intended to be prohibited by Congress.  Si ' e 44.` ` In addition, West Marketing Services (West), a market research firm, states that it licenses  x*a program, CelShare, which places calls to cellular phones to measure a cellular carrier's share of a given  xcellular market. The CelShare program monitors cellular telephone company messages to determine  xxwhether a random sample of telephone numbers is active or inactive. To avoid actually reaching a cellular  xRcustomer, calling devices are normally used in the middle of the night, are set to two rings, and  xDimmediately disconnect if a cellular customer answers the call. West states that three live connections are  xmade for every 1,000 calls. Since the primary function of its program is market research, and since no  xQtelemarketing is involved, West urges the Commission to allow its program to operate under the proposed  x/rules. West notes that several states have specifically exempted its program from the definition of prohibited autodialer calls.  S8' e 45.` ` Based on the plain language of  227(b)(1)(iii), we conclude that the TCPA did not intend  xto prohibit autodialer or prerecorded message calls to cellular customers for which the called party is not  xcharged. Moreover, neither TCPA nor the legislative history indicates that Congress intended to impede  xcommunications between radio common carriers and their customers regarding the delivery of customer  xservices by barring calls to cellular subscribers for which the subscriber is not called. Accordingly,  xcellular carriers need not obtain additional consent from their cellular subscribers prior to initiating  xtautodialer and artificial and prerecorded message calls for which the cellular subscriber is not charged.  xHowever, the market research calls to cellular carriers, as conducted by the West CelShare program, are  xclearly prohibited absent the prior express consent of the cellular customer called. While West appears  xto take pains to avoid calls which will result in charges to cellular subscribers, the fact that its market  xresearch calls result in such charges and are made without prior consent from the subscribers places its  S'service under the prohibitions of the TCPA and the rues.N 6 yOo'Ѝ A few commenters note that the NPRM omitted from the proposed rules the phrase "or other radio common carrier service," as it appears in  227(b)(1)(A)(iii) of the TCPA. This language was indeed inadvertently omitted from the text of the proposed rule, and has been included in  64.1200(a)(1)(iii) to mirror  yO 'the language of the TCPA. See Appendix B.  S' e 46.` ` Voice Messaging Services. Several commenters request clarification that services which  xstore and forward messages for later delivery to the called party are not intended to be prohibited by the  S;' xTCPA or by the proposed rules.wO;6 yO%'Ѝ See comments of Ameritech and MessagePhone.w In urging the Commission to create a specific exemption for such  xMservices, the commenters point to numerous statements in the legislative history in which members of  xZCongress expressed an expectation that such services would be exempted from the prohibitions of the" @O,l(l(,,j!"  S' xVTCPA.PЄ yO5'Ѝ See comments of Ameritech and reply comments of Ameritech at 4, n. 9. Bell Atlantic asserts that the intent of Congress was to restrict unsolicited advertising, not  xcommunications services which store and transmit individual customer messages. MessagePhone concurs  Sg' xy and references the Modified Final Judgment,QXgXЄ yO_'Ѝ See United States v. American Tel. and Tel. Co., 552 F.Supp. 226 (D.D.C.1982), aff'd mem. sub nom.  yO''Maryland v. United States, 460 U.S. 1001 (1983), modified United States v. Western Elec. Co., 673 F.Supp. 525 (D.D.C.1987), 714 F.Supp. 1 (D.D.C.1988), affirmed in part and reversed in part 900 F.2d 283 (D.C.Cir.1990). which, inter alia, permits the regional Bell Operating  xCompanies to engage in such services, and lends support for such an exemption. Commenters contend  x_that the Commission has already found such services to be in the public interest, citing a recent  S' x Commission decision granting a waiver to permit the delivery of Coin Message Delivery Services,RxЄ yO 'Ѝ See Bell Atlantic Order, 6 FCC 6$R   6$R Rcd at 3400, 3401 (Com.Car.Bur.1991). which  xhas been recently deployed by Bell Atlantic. Ameritech urges the Commission to clarify whether the  xprerecorded message identification requirement applies to the local operating company or the person  xtleaving the message, or both, for messages recorded using services like the Public Telephone Message  xDelivery Service (PTMDS). Ameritech contends that if the person leaving the message identifies himself or herself, then further identifying information (such as a telephone number or address) is unnecessary.  Si ' e 47.` ` The TCPA did not carve out a specific exemption for voice messaging services. However,  xZthe services referred to by the commenters would appear to fall either outside the TCPA's prohibitions  xor under an exemption. The prohibitions of  227(b)(1) clearly do not apply to functions like "speed  xDdialing," "call forwarding," or public telephone delayed message services (PTDMS), because the numbers  S ' x called are not generated in a random or sequential fashion.S Є yOE'Ѝ We emphasize that where such services are used for the purpose of telephone solicitation in violation of our rules and the TCPA, the users of the services, not the carriers providing the services, would be held liable, consistent with Congress' policy that carriers not be held responsible for the content of messages transmitted  yO'through the network. See statement of Senator Hollings, Congressional Record, S 18785 (November 27, 1991). Of course, carriers initiating telephone solicitations on their own behalf using such service would be subject to our rules and the TCPA.  Voice messaging services used to send  xpersonal prerecorded voice messages are not subject to the identification requirements of 227(d)(3) and  xg 64.1200(d) of our rules because such calls do not use autodialers to transmit prerecorded messages.  xQMoreover, under the rules adopted here, artificial and prerecorded message calls to residences are exempt  xfrom the TCPA's prohibitions in an emergency, where the caller received prior express consent, or if the  xcall is exempted by the Commission as either a non-commercial call or a commercial call which does not  xinclude an unsolicited advertisement and does not adversely affect the called party's privacy interests.  xcThus, Automated Alternate Billing Systems (AABS), used by common carriers to perform operator  xservices with artificial or prerecorded voice prompts, are exempt from the prohibition against artificial or  xprerecorded voice calls to residences to the extent they are non-commercial calls. However, voice message  xcalls, as prerecorded messages, would be subject to the prohibitions of  227(b)(1) and  64.1200(a) of  x3our rules. Thus, voice message calls could not be directed to an emergency line, a health care facility,  xradio common carrier services or other services for which the called party is charged for the call except in an emergency or with the prior express consent of the called party.  S' e 48.` ` In light of the foregoing, we believe that the prohibitions set forth in the rules are not a  xbarrier to the continued use and expansion of voice messaging service, and that the rules adopted here will"m S,l(l(,,"  xtbe effective in preventing any potential abuse by telemarketers. See  64.1200(a)-(d). Accordingly, a  xZspecific voice messaging exemption is not necessary to permit the present and future voice messaging services.  S4' e 49.` ` Public Utilities. Many public utilities note that they communicate with their customers  xthrough prerecorded message calls and automatic telephone dialing systems to notify customers of service  xoutages, to warn customers of discontinuance of service, and to read meters for billing purposes. They  xnote that under normal circumstances, customers can continue using their telephones normally as the meter  xinformation is being gathered and forwarded to a central office. The utilities urge the Commission to  xexempt such calls from the autodialer prohibitions, either under the existing business relationship  x}exemption or under the "emergency" exemption for calls related to public health and safety because  xinformation about service outages and about possible discontinuance of service affect public health and  xsafety. Moreover, many public utilities state that they have a third party notification service for their  xgcustomers, in which the utility agrees to contact a party designated by the customer in the event that a  xdelinquent bill or a service outage threatens interruption of that customer's service. This program is  x"designed to assist persons who have difficulty maintaining their accounts or who otherwise desire  x^assistance in ensuring that service is not interrupted. However, several commenters express concern that  x@a broad emergency exception could be a vehicle for campaigns targeted at the elderly, who in the past  xhave been subjected to telemarketing calls involving vitamins, security systems, or other items  6$R p 6$R urported to be important to the "health and safety" of the called party.  S' e 50.` ` BellSouth concurs with the public utilities and contends that the legislative historyTЄ yO9'Ѝ Congressional Record, H 11310 (November 26, 1991).   x@indicates an intent to permit autodialed calls for the purpose of notifying customers of potential power  xoutages, maintenance, or termination. In some jurisdictions, BellSouth is required by tariff to notify  xcustomers before disconnecting service. BellSouth requests the Commission to exempt from the  xprohibitions of  64.1200(a)(1) autodialed calls regarding the installation, maintenance, or termination of  xtelephone service in emergency situations. Further, Ameritech contends that the use of Automatic Meter  xReading Systems by utility companies clearly satisfies the TCPA's requirements regarding prior express consent, and that such services were not intended by Congress to be prohibited.  S' e 51.` ` Each of the circumstances described by the utilities is included within either the broad  xcexemption for emergency calls, or the exemption for calls to which the called party has given prior  xexpress consent. Service outages and interruptions in the supply of water, gas or electricity could in many  xinstances pose significant risks to public health and safety, and the use of prerecorded message calls could  xspeed the dissemination of information regarding service interruptions or other potentially hazardous  xcconditions to the public. Similarly, public utilities providing a third party notification service do not  xviolate the prohibition against prerecorded calls to residences where the third party has given his or her  xgprior express consent to the notification or the call relates to a public health and safety matter. In light  xof the comprehensive nature of the current exemptions, a specific exemption for public utilities to the  S;'general prohibition against autodialers and artificial or prerecorded voice message calls is not required.U;XЄ yO3#'Ѝ We emphasize that telephone solicitations as defined in our rules can never be classified as "emergencies."  yO#'See  64.1200(b).  S ' D. Technical and Procedural Standards  So"'1. Line Seizure--5 Second Hang-up Requirement. "o"U,l(l(,,#"Ԍ S' e 9ԙ52.` ` The TCPA requires, and the rules we adopt provide, that automatic telephone dialing  xsystems used to transmit artificial or prerecorded messages shall automatically release the called party's  xline within 5 seconds of the time that the calling party's system is notified of the called party's hang- up.  xThe ACA requests clarification of this requirement in order to ensure proper compliance. For the purposes  xof this rule section, the 5 second period begins when the called party's hang-up signal reaches the dialing  xgsystem of the caller. Commenters generally do not indicate that they anticipate problems in complying  S'with this requirement.V Є yO6'Ѝ Commenters point out that the proposed rules, in the prohibition against line seizure, S 68.318, refer to "automatic dialing devices," a term not employed elsewhere in the rules or the TCPA. Reading  227(d) as a whole, it is clear that the requirement refers only to automatic telephone dialing systems. The title and language of that section will thus be revised to read "automatic telephone dialing systems."  Sh'2. Identification Requirements for Artificial or Prerecorded Voice Systems.  S' e d53.` ` The TCPA mandates that all artificial or prerecorded telephone messages delivered by an  xautodialer state clearly the identity of the caller at the beginning of the message and the caller's telephone  xnumber or address during or after the message,  227(d)(3)(A), and we adopt this requirement in our rules,  xk64.1200(d). A number of commenters request that prerecorded messages be required to state the identity  x@of the caller and the caller's telephone number (other than that of any autodialing system used to place  xthe call) or address within 30 seconds after the message begins, so that the called party would not have  x*to listen to the entire message before deciding whether to hang up. We reject the proposal to require that  xka telephone number or address be stated within 30 seconds of the beginning of an artificial or prerecorded  x<message, because the TCPA requires only that the caller's identity be stated at the beginning of the  S7' xcmessage. See 227(d)(3)(B). We have been presented with no evidence to persuade us to request  xadditional authority to adopt such a restriction. Finally, as suggested by several commenters, we will  xrequire callers leaving a telephone number to provide a number other than that of the autodialer or  xprerecorded message player which placed the call because the autodialer or message player number may be in constant use and not available to receive calls from the called party.  64.1200(e)(4).  S'3. Facsimile Machines.  S' e 54.` ` The TCPA requires that identifying information be placed on all telephone facsimile  x/transmissions, and that telephone facsimile machines be capable of placing such information on all  x@transmissions.  227(d). The TCPA further prohibits the use of telephone facsimile machines to send  S' xunsolicited advertisements.dW` Є yOV'Ѝ Mr. Fax and National Faxlist urged the Commission not to impose a ban on unsolicited telephone facsimile advertisements; National Faxlist suggested that a telephone facsimile do-not-call list be created in lieu of a complete prohibition on such unsolicited advertisements. GTE requested clarification that the identification requirement does not apply to each page of messages transmitted through imaging systems. In banning telephone facsimile advertisements, the TCPA leaves the Commission without discretion to  yO#'create exemptions from or limit the effects of the prohibition (see  227(b)(1)(C)); thus, such transmissions are banned in our rules as they are in the TCPA.  64.1200(a)(3). We note, however, that facsimile transmission from persons or entities who have an established business relationship with the recipient can be deemed to be  yO^%'invited or permitted by the recipient. See para. 34, supra. Furthermore, the term "telephone facsimile machine" as defined in the TCPA and identically in our rules,  64.1200(f) clearly includes imaging systems. The rules state that the first page or each page of a transmission to a facsimile machine must include identifying"&V,l(l(&" information. d  227(b)(1)(C). Parties commenting on the facsimile requirements for"XW,l(l(,,m"  xRsenders of facsimile messages urge the Commission to clarify that carriers who simply provide  xMtransmission facilities that are used to transmit others' unsolicited facsimile advertisements may not be  S' x*held liable for any violations of  64.1200(a)(3).XXЄ yO'Ѝ See comments of SNET, Sprint, and reply comments of AT & T. We concur with these commenters. In the absence of  xt"a high degree of involvement or actual notice of an illegal use and failure to take steps to prevent such  xtransmissions," common carriers will not be held liable for the transmission of a prohibited facsimile message. Use of Common Carriers, 2 FCC 6$R   6$R Rcd 2819, 2820 (1987).  S' E. Enforcement  S5'1. Private Right of Action.  S' e 55.` ` The TCPA provides consumers with a private right of action, if otherwise permitted by  x*state law or court rules, for any violation of the autodialer or prerecorded voice message prohibitions and  x/for any violation of the guidelines for telephone solicitations.  227(c)(5). Absent state law to the  xcontrary, consumers may immediately file suit in state court if a caller violates the TCPA's prohibitions  xon the use of automatic telephone dialing system and artificial or prerecorded voice messages.   xQ227(b)(3). A consumer may also file suit in state court if he or she has received more than one telephone  xZcall within any 12-month period by or on behalf of the same company in violation of the guidelines for  x}making telephone solicitations.  227(c)(5). Telemarketers who have established and implemented  xreasonable practices and procedures in compliance with the latter section may present such compliance  x^as an affirmative defense to any action for violation of telephone solicitation guidelines.  227(c)(5). The  x}TCPA also permits states to initiate a civil action in federal district court against a telemarketer who  xengages in a pattern or practice of violations of the TCPA.  227(f)(1) and (2). States retain the power  xto initiate action in state court for violations of state telemarketing statutes.  227(f)(6). Finally,  xconsumers may request that the Commission take enforcement action regarding violations of  227,  S'consistent with the Commission's existing complaint procedures.YЄ yO'Ѝ Pacific Bell asserts that complaint proceedings brought under  208 of the Communications Act, 47 U.S.C.  208, and based on violations of  227 of the Act, 47 U.S.C.  227, could only be instituted against common carriers. Pacific Bell is correct with respect to complaints filed under Section 208 of the Act. In addition to the private right of action noted above, aggrieved persons or entities may report violations of the TCPA to the Commission and request action on such violations through the informal procedures set forth in  yOu'Section 1.41 of the rules, 47 C.F.R.  1.41. See, e.g., 47 U.S.C.  312 and 503(b).   S'2. State Law Preemption.  S9' e W56.` ` The TCPA, in  227(e), sets forth a standard for preemption of state law on autodialing,  xartificial or prerecorded voice messages, and telephone 6$R   6$R solicitations. The TCPA does not preempt state  xlaw which imposes more restrictive intrastate requirements or regulations regarding: the use of facsimile  xmachines to send unsolicited advertisements; the use of automatic telephone dialing systems; the use of  xartificial or prerecorded voice messages; or the making of telephone solicitations. However, the TCPA  xspecifically preempts state law where it conflicts with the technical and procedural requirements for  xidentification of senders of telephone facsimile messages or autodialed artificial or prerecorded voice messages.  227(e). "` Y,l(l(,,7"Ԍ S'3. Other Matters  S' e 57.` ` A number of commenters urge the Commission to request additional authority from  x@Congress to protect consumer privacy interests, arguing that the NPRM errs on the side of protecting  xcommercial speech and does not adequately protect telephone subscribers from invasions of privacy by  xtelemarketers. These commenters point out that telephone subscribers must receive at least one unwanted  xsolicitation before making a claim under the rules. The National Consumers League urges the  xkCommission to withdraw the NPRM and begin the rulemaking process anew, stating that the Commission failed to make specific proposals for meeting the requirements of the TCPA.  S' e 58.` ` Based upon our actions here, we find that no further authority is required at the present  xtime to accomplish the goals of the TCPA to restrict unwanted telephone solicitations. The regulations  x@implemented satisfy the TCPA's requirements that residential subscribers be provided with a means to  xavoid unwanted telephone solicitations, and that autodialers and prerecorded or artificial voice messages  xbe used responsibly in ways that do not impede commerce or threaten public health and safety. The  xrecord supports our conclusion that the proposed rules strike a reasonable balance between privacy rights,  xIpublic safety interests, and commercial freedoms of speech and trade, which Congress cited as its  S ' xparamount concerns in enacting the TCPA.gZ Є yO'Ѝ See Section 2 of the TCPA. g Moreover, contrary to the allegation of the National  xConsumers League, the NPRM asked for comment on a variety of proposals for restricting telephone  xsolicitations to residences and weighed their benefits, as directed by  227(c) of the TCPA. Specific  xinformation on the various proposals was supplied in the comments and our decision is based upon the  x3record. Accordingly, we find at this time that renewal of the rulemaking process is not warranted and would unduly delay implementation of consumer privacy protections.  S8' e 59.` ` However, we are concerned that consumers be fully informed of their rights under the  xTCPA. In addition to disseminating our own public notices, we will work with consumer groups, industry  xassociations, local telephone companies, and state agencies to assure that the rules we adopt today are well  xtpublicized. We also will monitor closely any reports of alleged violations of the TCPA or the rules that  xare filed with the Commission to determine whether additional action is necessary to protect consumers  xxfrom unwanted solicitations. If our current approach is not successful, a number of options are available.  x@For example, we could convene a cross-industry board or advisory council to evaluate the complaints  xreceived and recommend effective solutions. Both Congress and the Commission have found telemarketing  x&serves a valuable role in our economy, and it is appropriate for responsible telemarketers, who benefit  xfrom the activity, to devise solutions to problems. Alternatively, based upon our experience with the rules,  xgit may be necessary to initiate a rulemaking proceeding to establish more stringent restrictions, or even  xto recommend to Congress that it increase penalties or make other statutory changes. Our objective in  xMthis proceeding has been to hold telemarketers accountable for their activities without undermining the  xlegitimate business efforts of telemarketing. Existing Commission procedures will permit us to continue to do so.  S ' R  IV. CONCLUSION \  S!' e 60.` ` This rulemaking proceeding seeks to protect consumers from automated calls which may  xpose a threat to health and safety as well as from unwanted solicitations. Section  64.1200(a) prohibits  xcalls using autodialers or prerecorded messages to emergency lines, health care facilities, and calls to radio  xcommon carriers or other numbers for which the called party may be charged for the call. Prerecorded  xmessage calls to residences are generally prohibited. We have created specific exemptions to this"$XZ,l(l(,,z%"  xprohibition where the record demonstrates that the calls do not adversely affect the privacy interests of  xresidential subscribers: non-commercial calls, commercial calls not transmitting an unsolicited  xadvertisement, calls from parties with whom a resident has an established business relationship, and calls  xxfrom tax-exempt nonprofit organizations. Finally, residential subscribers will be protected from unwanted  xtelephone solicitations by the requirement that telemarketers maintain do-not-call lists for any telephone solicitations.  S'1  V. PROCEDURAL MATTERS \  S' e 61.` ` Final Regulatory Analysis: Pursuant to the Regulatory Flexibility Act of 1980, 5 U.S.C. Section 601, et seq., the Commission's final analysis in this Report and Order is as follows:  Si 'I. Need and purpose of this action: :  S ' "This Report and Order amends Part 64 of the Commission's rules by adding  64.1200 to restrict  x8the use of automatic telephone dialing systems and artificial or prerecorded voice messages for  xtelemarketing purposes or for transmitting unsolicited telephone facsimile advertisements. The rules  xrequire that persons or entities making telephone solicitations establish procedures to protect residential  xsubscribers from unwanted solicitations, and set forth exemptions to certain prohibitions under this Part.  S' xyThe Report and Order also amends Part 68 of the rules by revising  68.318(c)(2) and adding   xk68.318(c)(3) to require that automatic telephone dialing systems delivering a recorded message release the  xcalled party's line within 5 seconds of notification of hang-up by the called party, and to require that  x&telephone facsimile machines manufactured on and after December 20, 1992 must clearly identify the  xsender of a facsimile message. The amendments implement the Telephone Consumer Protection Act of  x@1991, which, inter alia, adds Section 227 to the Communications Act of 1934, as amended, 47 U.S.C.  xSection 227. The rules are intended to impose reasonable restrictions on autodialed or prerecorded voice  xtelephone calls consistent with considerations regarding public health and safety and commercial speech  xand trade, and to allow consumers to avoid unwanted telephone solicitations without unduly limiting legitimate telemarketing practices.  S' "II. Summary of issues raised by the public comments in response to the Initial Regulatory  S'Flexibility Analysis: No comments were submitted in direct response to the Initial Regulatory Flexibility Analysis.  S'III. Significant alternatives considered:  "The NPRM in this proceeding requested comments on proposed regulations implementing the  x}TCPA and comments on several proposals restricting telephone solicitations to residential telephone  x^subscribers. The Commission has considered all comments and has adopted regulations to implement the  x"prohibitions and technical requirements mandated by the TCPA as well as regulations which allow  x*consumers to avoid unwanted telephone solicitations through placement on company-specific do-not-call  xlists. The Commission considers its Report and Order to be the most reasonable course of action under the mandate of Section 227 of the Communications Act, as amended.  S$')w VI. ORDERING CLAUSES \  Sp&' e q62.` ` Accordingly, It Is Ordered, that, pursuant to authority contained in Sections 1, 4(i), 4(j),  x201-205, 218, and 227 of the Communications Act of 1934, as amended, 47 U.S.C.  151, 154(i), 154(j),"='Z,l(l(,,'"  x201-205, 218 and 227, Parts 64 and 68 of the Commission's Rules and Regulations ARE AMENDED as set forth in Appendix B hereof, effective December 20, 1992.   Sg' e 63.` ` It Is Further Ordered, that, the Secretary shall cause a summary of this Report and Order  xgto be published in the Federal Register which shall include a statement describing how members of the  xDpublic may obtain the complete text of this Commission decision. The Secretary shall also provide a copy  S'of this Report and Order to each state utility commission.  Sh'64.` ` It Is Further Ordered, that, this proceeding IS TERMINATED. ` `  hhCFEDERAL COMMUNICATIONS COMMISSION ` `  hhCDonna R. Searcy ` `  hhCSecretary " Z,l(l(,, " Parties Filing Comments Aberdeen American News Alpha Information Altoona Mirror American Bankers Association (ABA) American Civil Liberties Union American Collectors Association (ACA) American Council of Life Insurance and the National Association of Life Underwriters American Express Company (AMEX) American Financial Services Association (AFSA) American Newspaper Publishers Association (Reply Comments by Newspaper Association of America) American Resort Development Association American Service Telemark American Telemarketing Association, Inc. (ATA) Ameritech Operating Companies (Ameritech) Amway Ann Arbor News Annenberg School for Communications Argus Leader Arizona Republic/Phoenix Gazette Association of National Advertisers, Inc. Asheville Citizen-Times American Telephone and Telegraph Company (AT & T) Audio Technical Avon Baltimore Gas and Electric Company Baltimore Sun Banc One Corporation, California Bankers Clearing House Association, First USA Bank, New York Clearing House Association, QVC Network, VISA U.S.A., Inc.a (the Coalition) Bell Atlantic BellSouth Bellingham Herald Bellville News-Democrat Blue Cross & Blue Shield Brazosport Facts Brewster, Congressman Bill J.aa Buchan MD, Janet H. and Robert R.C. Bucks County Courier Times (Mark Gursky) Bucks County Courier Times (Arthur E. Mayhew) California Department of Justice California Public Utilities Commission Capital Newspapers Cellular Telecommunications Industry Association Centel Corporation (Centel) "='Z,l(l(,,'"ԌCenter for the Study of Commercialism (CSC) Centre Daily Times Chico Enterprise-Record Citicorp Clark County Rural Electric Cooperative CMS A/R Services Coalition of Higher Education Assistance Organizations ComCast Cellular Community Benefits Corporation Conservation Fund Consumer Action Consumer Bankers Association (CBA) Contractors Clearing House Courier-Journal Cox Enterprises, Inc. (Cox) CUC International, Inc. CUNA Mutual Insurance Group Daily News, Bowling Green, KY (Pipes Gaines) Daily News, Lebanon, PA (Blake L. Sanderson) Daily News, Los Angeles, CA (Kirk Felgenhauer) Daily News, Los Angeles, CA (Lynne Hanchett) Daily News, Los Angeles, CA (Chuck Schussman) Detroit Newspaper Agency Digital Systems International, Inc.a Direct Marketing Association (DA) Direct Selling Association Electronic Information Systems, Inc. Firelands Rural Electric Cooperative, Inc.aa Florida Today/USA Today Forum Franklinton Financial Free Press Standard Gadsden Times Gannett Co., Inc.a Gazette Printing Company Gleaner  * Goshen News Grand Island Independent Grand Rapids Press Green Bay Press   GTE Service Corporation (GTE) Guam Attorney General Hartford Courant Household International Huntsville Times Idaho State Journal Illinois Student Assistance Commission Illinois, University of Indianapolis Star, Indianapolis News Independent Telecommunications Network, Inc.a (ITN) "='Z,l(l(,,'"ԌInfiniti Group, Inc. International Communications Association International Telesystems Corporation InterVoice Inventures Investor's Business Daily ITI Marketing Services, Inc. Investment Company Institute J. BLenkarn Systems J.C. Penney Company, Inc. Jersey Journal Johnstown Tribune Publishing Company Jones Intercable Journal and Courier Kalamazoo Gazette/Weekly Gazette, Hometown Gazette Kauffman Group King TeleServices Knight Ridder, Inc. La Crosse Tribune Lansing State Journal LCS Direct Marketing Services Lee County Electric Cooperative, Inc. Lejeune Associates of Florida (Lejeune) Mary Kay Cosmetics MBNA America Bank, N.A. MCI Telecommunications Corporation Merrill Lynch, Pierce, Fenner & Smith, Inc. MessagePhone, Inc.a Metrocall Midland Daily News Minnesota Attorney General Mktg. Inc.aa Mobile Press Register Montgomery Advertiser, Alabama Journal Morning Call (Donald J. Belasco) Morning Call (Richard E. Forgay II) Mr. Fax Muskegon Chronicle National Association of Realtors National Association of Water Companies National Consumers League (NCL) National FaxList National Retail Federation (NRA) National Rural Electric Cooperative Association National Telephone Cooperative Association (NTCA) NationsBank New Haven Register News and Observer Newspaper Association of America (Initial Comment by American Newspaper Publishers Association) "='Z,l(l(,,'"ԌNew York Department of Public Service New York State Consumer Protection Board New York Times Newsday NonProfit Group North American Telecommunications Association (NATA) Norwest Card Services Nynex Telephone Companies Ohio Newspaper Association Ohio Public Utilities Commission (OPUC) Ohio Student Loan Commission Olan Mills, Inc.a Oregonian Orlando Sentinel Pacesetter Corporation Pacific Bell, Nevada Bell (Pacific Bell) Palm Beach Post Pennsylvania Newspaper Publishers' Association Pueblo Chieftain Pierce-Pepin Electric Cooperative Pioneer Electric Cooperative Pitney Bowes Plain Dealer PNC Financial Corporation Press Journal Princeton Packet, Inc. Privacy Times Private Citizen, Inc.a (Private Citizen) Public Forum Record Journal Publishing Reese Brothers, Inc. Review RMH Telemarketing Rochester Telephone Corporation Rocky Mountain BankCard System SafeCard Services, Inc.a (Safecard) San Francisco Newspaper Agency Santa Barbara News-Press Santa Cruz, County of Santa Monica, City of Scottsdale Progress Sears, Roebuck and Co. Securities Industry Association (SA) Sentinel-Record Shotten III, Bert K. Southern New England Telephone Company (SNET) Southwestern Bell Telephone Company (SWBT) Spokesman-Review, Spokane Chronicle Sprint a Star-Ledger "='Z,l(l(,,'"ԌStockton Record Student Loan Marketing Association Sun, The Syracus Herald-Journal, Post-Standard, Herald American Tampa Tribune Tandy Corporation Teknekron Infoswitch Corporation Telecheck Services Telegram & Gazette Telemarketing Magazine aa Telocator, the Personal Communications Industry Association Texarkana Gazette Texas Public Utilities Commission Thomas Construction Thomasville Times-Enterprise Time Warner Inc. Times-Picayune Union-News, Sunday-Republican Unisys United Electric Cooperative, Inc. United States Postal Service United States Telephone Association United Student Aid Funds, Inc.aa U.S. Intelco Networks, Inc. U.S. West Communications, Inc. (U.S. West) USAA Federal Savings Bank Utilities Telecommunications Council Vanguard Cellular Systems, Inc. Verde Independent Vermont Public Service Board6$R+aa Victoria Advocate Waco Tribune Wachovia Washington State Attorney General Wells Fargo Bank West Marketing Services Western Express Service Company Wisconsin, State of, Department of Justice Worcester Telegram & Gazette Zacson Corporation (a) also filed reply comments (aa) filed only reply comments "<# Z,l(l(,,#" Appendix B Title 47 of the Code of al Regulations, parts 64 and 68, are amended as follows: 1. The table of contents for part 64 is amended by adding subpart L to read as follows: Subpart L - Restrictions on Telephone Solicitation  64.1200 Delivery restrictions. 2. The authority citation for subpart L is added to part 64 to read as follows: Authority: 47 U.S.C. secs. 151, 154(i), 154(j), 201-205, 218, and 227. 3. Subpart L is added to part 64 to read as follows: Subpart L - Restrictions on Telephone Solicitation  64.1200 Delivery restrictions. (a) No person may (1) Initiate 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, (i) To any emergency telephone line, including any 911 line and any emergency line of a hospital, medical physician or service office, health care facility, poison control center, or fire protection or law enforcement agency; (ii) To the telephone line of any guest room or patient room of a hospital, health care facility, elderly home, or similar establishment; or (iii) To any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call; (2) Initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message"='!Z,l(l(,,'"Ԍ without the prior express consent of the called party, unless the call is initiated for emergency purposes or is exempted by sec. 64.1200(c). (3) Use a telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine. (4) Use an automatic telephone dialing system in such a way that two or more telephone lines of a multi-line business are engaged simultaneously. (b) For the purpose of sec. 64.1200(a) the term "emergency purposes" means calls made necessary in any situation affecting the health and safety of consumers. (c) The term "telephone call" in sec. 64.1200(a)(2) shall not include a call or message by, or on behalf of, a caller: (1) that is not made for a commercial purpose, (2) that is made for a commercial purpose but does not include the transmission of any unsolicited advertisement, (3) to any person with whom the caller has an established business relationship at the time the call is made, or (4) which is a tax-exempt nonprofit organization. (d) All artificial or prerecorded telephone messages delivered by an automatic telephone dialing system shall: (1) At the beginning of the message, state clearly the identity of the business, individual, or other entity initiating the call, and (2) During or after the message, state clearly the telephone number (other than that of the autodialer or prerecorded message player which placed the call) or address of such business, other entity, or individual. (e) No person or entity shall initiate any telephone solicitation to a residential telephone subscriber (1) before the hour of 8 A.M. or after 9 P.M. (local time at the called party's location), and (2) unless such person or entity has instituted procedures for maintaining a list of persons who do not wish to receive telephone"='"Z,l(l(,,'"Ԍ solicitations made by or on behalf of that person or entity. The procedures instituted must meet the following minimum standards: (i) Written policy. Persons or entities making telephone solicitations must have a written policy, available upon demand, for maintaining a do-not-call list. (ii) Training of personnel engaged in telephone solicitation. Personnel engaged in any aspect of telephone solicitation must be informed and trained in the existence and use of the do-not-call list. (iii) Recording, disclosure of do-not-call requests. If a person or entity making a telephone solicitation (or on whose behalf a solicitation is made) receives a request from a residential telephone subscriber not to receive calls from that person or entity, the person or entity must record the request and place the subscriber's name and telephone number on the do-not-call list at the time the request is made. If such requests are recorded or maintained by a party other than the person or entity on whose behalf the solicitation is made, the person or entity on whose behalf the solicitation is made will be liable for any failures to honor the do-not-call request. In order to protect the consumer's privacy, persons or entities must obtain a consumer's prior express consent to share or forward the consumer's request not to be called to a party other than the person or entity on whose behalf a solicitation is made or an affiliated entity. (iv) Identification of telephone solicitor. A person or entity making a telephone solicitation must provide the called party with the name of the individual caller, the name of the person or entity on whose behalf the call is being made, and a telephone number or address at which the person or entity may be contacted. If a person or entity makes a solicitation using an artificial or prerecorded voice message transmitted by an autodialer, the person or entity must provide a telephone number other than that of the autodialer or prerecorded message player which placed the call. (v) Affiliated persons or entities. In the absence of a specific request by the subscriber to the contrary, a residential subscriber's do-not-call request shall apply to the particular business entity making the call (or on whose behalf a call is made), and will not apply to affiliated entities unless the consumer reasonably would expect them to be included given the"='#Z,l(l(,,'"Ԍ identification of the caller and the product being advertised. (vi) Maintenance of do-not-call lists. A person or entity making telephone solicitations must maintain a do-not-call list for the purpose of any future telephone solicitations. (f) As used in this section: (1) The terms "automatic telephone dialing system" and "autodialer" mean equipment which has the capacity to store or produce telephone numbers to be called using a random or sequential number generator and to dial such numbers. (2) The term "telephone facsimile machine" means equipment which has the capacity to transcribe text or images, or both, from paper into an electronic signal and to transmit that signal over a regular telephone line, or to transcribe text or images (or both) from an electronic signal received over a regular telephone line onto paper. (3) The term "telephone solicitation" means the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person, but such term does not include a call or message (i) to any person with that person's prior express invitation or permission, (ii) to any person with whom the caller has an established business relationship, or (iii) by a tax-exempt nonprofit organization. (4) The term "established business relationship" means a prior or existing relationship formed by a voluntary two-way communication between a person or entity and a residential subscriber with or without an exchange of consideration, on the basis of an inquiry, application, purchase or transaction by the residential subscriber regarding products or services offered by such person or entity, which relationship has not been previously terminated by either party. (5) The term "unsolicited advertisement" means any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person's prior express invitation or permission. "='$Z,l(l(,,'"Ԍ4. The authority citation for subpart D of part 68 is revised to read as follows: Authority: 47 U.S.C. secs. 151, 154, 155, 201-205, 218, 227, and 303. 5. Section 68.318(c) is amended by revising paragraph (c)(2) and adding paragraph (c)(3) to read as follows:  68.318 Additional limitations. * * * (c) * * * (2) Line seizure by automatic telephone dialing systems. Automatic telephone dialing systems which deliver a recorded message to the called party must release the called party's telephone line within 5 seconds of the time notification is transmitted to the system that the called party has hung up, to allow the called party's line to be used to make or receive other calls. (3) Telephone facsimile machines; identification of the sender of the message. It shall be unlawful for any person within the United States to use a computer or other electronic device to send any message via a telephone facsimile machine unless such message clearly contains, in a margin at the top or bottom of each transmitted page or on the first page of the transmission, the date and time it is sent and an identification of the business, other entity, or individual sending the message and the telephone number of the sending machine or of such business, other entity, or individual. Telephone facsimile machines manufactured on and after December 20, 1992 must clearly mark such identifying information on each transmitted message.