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Document 2Document 2/ Document 7Document 70 2r:13253l74T8Right Par 1Right Par 11` hp x (#X` hp x (#X` hp x (#` hp x (#Right Par 2Right Par 22` hp x (#X` hp x (#0X` hp x (#0` hp x (#Document 3Document 33 Right Par 3Right Par 34` hp x (#X` P hp x (#X` P hp x (#` hp x (#2C5:6<7>8@Right Par 4Right Par 45` hp x (#X` hp x (#0X` hp x (#0` hp x (#Right Par 5Right Par 56` hp x (#X` hp x (#X` hp x (#` hp x (#Right Par 6Right Par 67` hp x (#X` hp x (#0X` hp x (#0` hp x (#Right Par 7Right Par 78` hp x (#X` hp x (#X` hp x (#` hp x (#2K9NC:(lE;$G<$IRight Par 8Right Par 89` hp x (#X` hp x (#0X` hp x (#0` hp x (#Document 1Document 1:` hp x (#X` hp x (#X` hp x (#` hp x (#Technical 5Technical 5;` hp x (#X` hp x (# X` hp x (#` hp x (#Technical 6Technical 6<` hp x (#X` hp x (# X` hp x (#` hp x (#2vO=lL>lzL?$L@l OTechnical 2Technical 2= Technical 3Technical 3> Technical 4Technical 4?` hp x (#X` hp x (# X` hp x (#` hp x (#Technical 1Technical 1@ 2pUA$OB$QCSDTTechnical 7Technical 7A` hp x (#X` hp x (# X` hp x (#` hp x (#Technical 8Technical 8B` hp x (#X` hp x (# X` hp x (#` hp x (#WP Heading 2WP Heading 2C44#6X@C@##Xv6X@CX@#WP Heading 1WP Heading 1D44#6X@C@# #Xv6X@CX@#2^EUFWGYH[toc 1toc 1E` hp x (#!(#B!(#B` hp x (#toc 2toc 2F` hp x (#` !(#B` !(#B` hp x (#toc 3toc 3G` hp x (#` !(# ` !(# ` hp x (#toc 4toc 4H` hp x (# !(#  !(# ` hp x (#2eIL^Jj`KvbLbtoc 5toc 5I` hp x (#h!(# h!(# ` hp x (#toc 6toc 6J` hp x (#!(#!(#` hp x (#toc 7toc 7K toc 8toc 8L` hp x (#!(#!(#` hp x (#2mMNeNlgOiPktoc 9toc 9M` hp x (#!(#B!(#B` hp x (#index 1index 1N` hp x (#` !(# ` !(# ` hp x (#index 2index 2O` hp x (#` !(#B` !(#B` hp x (#toa headingtoa headingP` hp x (#!(# !(# ` hp x (#2LoQvmRlnnSrncaptioncaptionQ _Equation Caption_Equation CaptionR endnote referenceendnote referenceS 2~o X- d(# X` hp x (#%'0*,.8135@8:Recording callers' names will assist in proving violations of the TCPA, and we note that no consumers, or representative of consumers, shares NAA's concerns in the record before us.  X- 5W!@@{  10. Calling Hours. Under Commission rules, no telephone solicitation calls may be made  Xv- d(#prior to 8 a.m. or after 9 p.m.8vC X- d(#/ԍ 47 C.F.R.  64.1200(e)(1) states that "[n]o person or entity shall initiate any telephone  d(#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)...."8 The TCPA defines the term "telephone solicitation" as "the  d(#-initiation of a telephone call or message for the purpose of encouraging the purchase or rental of,  XH- d(#or investment in, property, goods, or services, which is transmitted to any person, but such term  d(#does not include a call or message (i) to any person with that person's priorexpress invitation  X - d(#or permission[emphasis added]."C KC X-ԍ 47 U.S.C.  227(a)(3).C DMA, NAA, and the Palm Beach Post (the Post) ask the  d(#[Commission to clarify that telemarketers may make calls outside the designated calling hours if  d(#they have obtained the prior express consent of the resident to do so, or if the resident so  X - d(#requests.h C X-ԍ DMA Petition at 7; NAA Comments at 3; NAA Reply Comments at 1.h DMA points out that this definition is incorporated verbatim in Section 64.1200(f)(3)  X -of the Commission's rules.@ C X -ԍ DMA Petition at 56. @  X- 5W!>@@{  11. Decision. As noted above, telephone solicitations, as defined in the TCPA and in our  d(#rules, do not include calls made with the prior express permission or invitation of a residential  Xf- d(#Ltelephone subscriber.lf^ C Xu-ԍ See 47 U.S.C.  227(a)(3); 47 C.F.R.  64.1200(f)(3). l Although the term "express permission or invitation" is not defined in  d(#statutory language or legislative history, there is no indication that Congress intended that calls  d(#be excepted from telephone solicitation restricitions unless the residential subscriber has (a)  d(#clearly stated that the telemarketer may call, and (b) clearly expressed an understanding that the  d(#-telemarketer's subsequent call will be made for the purpose of encouraging the purchase or rental  d(#of, or investment in, property, goods or services. Accordingly, calls made before 8 a.m. or after  d(#\9 p.m. (local time at the called party's location) do not violate our rules if they are made with  d(#such prior express invitation or permission of the resident. If a resident withdraws express  d(#Kconsent, any further solicitations to that resident by or on behalf of the same person or entity will  X-be subject to our rules on telephone solicitations barring calls before 8 a.m. or after 9 p.m.  C XW%- d(#ԍ We emphasize that a request not to be called would also sever an established business  d(#relationship. Thus, such a request would obligate a person or entity in an established business  X)'- d(#=relationship with the resident to comply with the rules on telephone solicitation. See 47 C.F.R.")'0*((7'"  64.1200(f)(3)(ii). "y 0*((Q"Ԍ X- 5W!Nԙ@@{  12. TaxExempt Nonprofit Organizations. The term "telephone solicitation," as defined  X- d(#zin the TCPA, does not include a call or message "by a taxexempt nonprofit organization."C!yC X-ԍ 47 U.S.C.  227(a)(3).C  d(#DMA, the Nonprofit Group, and Reese Brothers request clarification that the Commission's rules  d(#except from liability not only calls placed by taxexempt nonprofit organizations, but also calls  X- d(#made on their behalf by independent telemarketers.n"*C X -ԍ DMA Petition at 811; Nonprofit Group at 25; Reese Brothers at 25.n The Nonprofit Group and Reese Brothers  X- d(#urge the Commission to revise Section 64.1200(f)(3) of the rules to reflect this intent.)#C X - d(#ԍ Reese Brothers suggests that the Commission revise  64.1200(f)(3)(iii) to read "(3) The  d(#term `telephone solicitation' ... does not include a call or message ... (iii) On behalf of a taxexempt nonprofit organization.") All three  d(#commenters maintain that there is no sound legal or public policy basis for creating a regulatory  d(#distinction between calls placed by the taxexempt nonprofit organizations themselves and those  XH- d(#placed by independent contractors on behalf of taxexempt nonprofit organizations.q$H^ C XW-ԍ DMA Petition at 1011; Nonprofit Group at 25; Reese Brothers at 24. q DMA states  d(#\that the logic underlying placement of responsibility for compliance with the telemarketer is  d(#soundly based on agency principles, and should be applied to taxexempt nonprofit organizations.  d(#It argues that disparate treatment for the two types of calls would lead to absurd results; tax d(#exempt nonprofit organizations would be subject to liability as principals for the acts of their  X -agents, even though they would not be liable if they performed the same acts themselves.A%  C X-ԍ DMA Petition at 811. A  X - 5W!M@@{  13. Decision. Our rules generally establish that the party on whose behalf a solicitation is  X- d(#made bears ultimate responsibility for any violations.W& C X-ԍ See 47 C.F.R.  64.1200(e)(2)(iii). W Calls placed by an agent of the  d(#telemarketer are treated as if the telemarketer itself placed the call. Accordingly, we revise our  d(#?rules to clarify that telephone solicitations made by or on behalf of taxexempt nonprofit  XK-organizations are not subject to our rules governing telephone solicitations.a'KqC Xm!-ԍ See Appendix, 47 C.F.R.  64.1200(e)(2)(iii). a  X- 5W!@@{  14. Retention of DoNotCall Request Records. Section 64.1200(e)(2)(vi) of the  d(#Commission's rules states that "[a] person or entity making telephone solicitations must maintain  d(#a donotcall list for the purpose of any future telephone solicitations." DMA and Olan Mills  d(#-urge the Commission to reconsider its requirement that telemarketers retain records of donotcall  d(#requests permanently, and to require instead that such records be maintained for 5 years after such""'0*(("  X- d(#requests are made.(C Xy- d(#ԍ DMA Petition at 1115; Olan Mills at 26; Post Reply Comments at 1 (records should be kept no more than 5 years). DMA asserts that the current requirement is overbroad. DMA, Olan Mills  d(#<and NAA point out that telephone numbers recorded by telemarketers will be reassigned to other  d(#zsubscribers over time. DMA and Olan Mills assert that a subscriber with a newly assigned  d(#Knumber may wish to receive solicitation calls, but because the number appears on a telemarketer's  d(#zdonotcall list, solicitation calls from that telemarketer to the subscriber will be permanently  X- d(#prohibited._)bC X -ԍ DMA Petition at 1214; Olan Mills at 35; NAA at 2. _ DMA and Olan Mills suggest further that consumers will be misled into believing  d(#that the lists permanently reflect their wishes, even if they move (and presumably receive a new  d(#telephone number). Olan Mills states that the permanent retention requirement will force  XH- d(#telemarketers to make test calls to eliminate "dead" numbers from their calling list.P*HC X -ԍ DMA Petition at 13; Olan Mills at 3. P  d(#Congressman Edward J. Markey of the House Subcommittee on Telecommunications and  d(#Finance, in a letter to Chairman Hundt, has urged that we keep the permanent retention  d(#requirement. The letter argues that sufficient alternatives already exist to assist telemarketers in  d(#updating their donotcall lists, and that changing the permanent retention requirement will affect  d(#those subscribers who do not move or change phone numbers but still wish to avoid telephone  X -solicitations.+ C X3- d(#ԍ Letter to Chairman Reed A. Hundt, FCC, from Hon. Edward J. Markey, Chairman,  d(#jSubcommittee on Telecommunications and Finance, Committee on Energy and Commerce, July 14, 1994.  X- o @@{ 15. 44Decision. We will modify the requirement that a donotcall request be honored  Xy- d(#indefinitely, to require that the request be honored for a period of 10 years. Our rules should  d(#reflect the fact that residential telephone numbers are recycled. We believe it is reasonable to  d(#^expect telemarketers to honor donotcall requests for a period of 10 years. While we  d(#Kacknowledge that a 10year requirement has not been suggested by any of the parties, we believe  d(#that a fiveyear period, as proposed by DMA and Olan Mills, would not adequately account for  d(#kthe privacy needs of residential telephone subscribers. We also appreciate the concerns of  d(#Congressman Markey, but believe the modified 10year retention requirement will best preserve  d(#=the careful balance we seek to maintain between residential subscriber privacy and reasonable  d(#jtelemarketing practices. We will monitor the effectiveness of the 10year retention requirement  d(#and readdress the issue if necessary at a later date. Our purpose in prescribing donotcall lists  d(#^is to ensure that a consumer's request not to be called is respected. A call made by a  d(#telemarketer solely to determine whether a subscriber wishes to receive a telephone solicitation  d(#is, in effect, a solicitation from that telemarketer, and accordingly would violate that subscriber's donotcall request. " G +0*(("Ԍ X- B. Artificial or Prerecorded Voice Message Calls to Residences  X- o #@@{ 16. 44Established Business Relationship Exemption and Debt Collection Calls. Section  d(#227(b)(1)(C) of the Communications Act prohibits prerecorded or artificial voice messages to  d(#residences. The Commission may make exemptions to this prohibition, however, if it determines  d(#that the exempted calls "will not adversely affect the privacy rights that this section is intended  Xv- d(#to protect" and "do not include the transmission of any unsolicited advertisement.",vC X-ԍ 47 U.S.C.  227(b)(2)(B)(ii). 47 C.F.R.  64.1200(a)(2) states that no person may:  5W!@@{[i]nitiate any telephone call to any residential telephone line using an artificial or  5W!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  64.1200(c).(#@ The rules  X_- d(#adopted in the Report and Order exempt from the general prohibition any prerecorded or artificial  d(#voice message calls from a person with whom the subscriber has an established business  X1- d(#relationship.-b1C X-ԍ 47 C.F.R.  64.1200(c) states:  5W!0@@{The term "telephone call" in  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;(#@  5W!]@@{ (2) that is made for a commercial purpose but does not include the transmission of any unsolicited advertisement;(#@  5W!@@{ (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 taxexempt nonprofit organization.(#@ 47 C.F.R.  64.1200(f)(4) defines an "established business relationship" as:  5W!{@@{a prior or existing relationship formed by a voluntary twoway communication between a  5W! person or entity and a residential subscriber with or without an exchange of consideration,  5W!on the basis of an inquiry, application, purchase or transaction by the residential subscriber  5W!kregarding products or services offered by such person or entity, which relationship has not been previously terminated by either party.(#@ Household points out that the vast majority of debt collection calls are originated  d(#by automatic telephone dialing machines; such machines may deliver "hold" messages after the  X - d(#subscriber answers the call but before a live operator takes control of the call.;. GC X"-ԍ Household at 57.; Household asks  d(#[the Commission to clarify that "the continued existence of an unpaid debt affords a creditor an  d(#`existing business relationship' exemption for debt collection calls, despite any attempt by the  X -debtor to `terminate' or `sever' the relationship for other purposes.";/ C Xg'-ԍ Id. at 4. ; " /0*(( "Ԍ X- o |ԙ@@{ 17. 44Decision. As we stated in the Report and Order, prerecorded debt collection calls are  d(#[adequately covered by exemptions adopted in our rules. Our rules explicitly exempt calls made  X- d(#either by a party with whom the subscriber has an established business relationship or calls that  X- d(#do not transmit an unsolicited advertisement and are made for a commercial purpose.D0C X6-ԍ 47 C.F.R.  64.1200(c).D  d(#Household confuses the two exemptions. We have specifically noted that "prerecorded debt  d(#collection calls [are] exempt from the prohibitions on [prerecorded] calls to residences as . . .  Xx- d(#commercial calls . . . which do not transmit an unsolicited advertisement."_1xyC X -ԍ Report and Order at 8773, para. 39._ Nevertheless, the  Xa- d(#iReport and Order explicitly states that subscribers who sever a business relationship are revoking  XJ- d(#consent to any future solicitation.G2J*C X% -ԍ Id. at 8766 n.47.G Because the termination of an established business  d(#Lrelationship is significant only in the context of solicitation calls, that act of terminating such a  X -relationship would not hinder or thwart creditors' attempts to reach debtors by telephone.   X - 5W!@@{ 18. Creditor Identification. Household also requests clarification that "the creditor  X - d(#identification requirements of the [Fair Debt Collection Practices Act (FDCPA)]>3 C Xe-ԍ 15 U.S.C.  1692.> are fully  d(#[accommodated by an appropriate, limited exemption from the identification requirements of the  X - d(#Lregulations implementing [the] TCPA."=4 C X-ԍ Household at 89. = Debt collectors subject to the FDCPA are prohibited  d(#-from conveying any information to third parties, even inadvertently, with respect to the existence  X}- d(#of a debt.A5}= C Xk-ԍ 15 U.S.C.  1629bc.A The FDCPA requires a debt collector initiating a call answered by a third party to  Xf-identify himself by name but not to disclose the name of his employer unless asked.B6f C X-ԍ 15 U.S.C.  1629b(1).B  X8- o @@{ 19. 44Decision. The TCPA requires that calls dialed to numbers generated randomly or in  d(#sequence (autodialed) and delivered by artificial or prerecorded voice message must identify the  d(#caller ("business, individual, or other entity") and give a telephone number or address at which  X- d(#the caller can be reached.L7 C XC#-ԍ 47 U.S.C.  227(d)(3)(A).L Household correctly points out that debt collection calls "are not  d(#Zdirected to randomly or sequentially generated telephone numbers, but instead are directed to the  X- d(#specifically programmed contact numbers for debtors."?8PC X&-ԍ Household at 6.? As we stated in our Report and Order," 80*(("  X- d(#such debt collection calls do not require an identification message.U9C Xy-ԍ Report and Order at 8733, para. 39. U We thus clarify that the  d(#rules do not require that debt collection employees give the names of their employers in a  d(#prerecorded message, which disclosure might otherwise reveal the purpose of the call to persons  X-other than the debtor.:yC X- d(#.ԍ If an artificial or prerecorded voice message contains a telephone solicitation as defined  d(#in our rules, the caller must provide the name of the individual caller, the entity on whose behalf  d(#/the solicitation is made, and a telephone number or address, as required under the rules for  X -telephone solicitation. See 47 C.F.R.  64.1200(e)(2)(iv); Report and Order at 8757, para. 9.  Xv- C. Telephone Facsimile Machines  XH- o @@{ 20. 44Responsibility for Compliance. The TCPA defines the term "telephone facsimile  d(#machine" as "equipment which has the capacity (a) to transcribe text or images, or both, from  d(#paper into an electronic signal and to transmit that signal over a regular telephone line, or (b) to  d(#transcribe text or images (or both) from an electronic signal received over a regular telephone line  X - d(#<onto paper."C; C X-ԍ 47 U.S.C.  227(a)(2).C Pursuant to the TCPA, the Commission's rules require that any person who sends  d(#<a telephone facsimile transmission must clearly mark the sender's identity, telephone number, and  X - d(#the date and time of transmission.< C X-ԍ 47 C.F.R.  68.318(3) states that:  5W!!@@{[i]t shall be unlawful for any person within the United States to use a computer or other  5W!|electronic device to send any message via a telephone facsimile machine unless such  5W!message clearly contains, in a margin at the top or bottom of each transmitted page or on  5W!Nthe first page of the transmission, the date and time it is sent and an identification of the  5W! business, other entity, or individual sending the message and the telephone number of the  5W!sending machine or of such business, other entity, or individual. Telephone facsimile  5W!machines manufactured on and after December 20, 1992 must clearly mark such identifying  X6-information on each transmitted message. See para. 25, infra.(#@ƻ Telephone facsimile machines manufactured on or after the  d(#effective date of the rules (December 20, 1992) must clearly mark such identifying information  X- d(#\on each transmission.3=xC X"-ԍ Id.3 Tandy contends that manufacturers should not be required to take  d(#unreasonable steps to ensure that the required information is placed on all facsimile transmissions.  d(#It requests that the Commission clarify whether telephone facsimile machines must contain a  d(#disabling function so that the user can send no transmission without first programming identifying"K )=0*((I"  X- d(#Ninformation into the machine.8>C Xy-ԍ Tandy at 46. 8 Several commenters urge the Commission to clarify that  d(#>manufacturers will not be held liable for a user's inadvertent or intentional failure to display  X-identifying information on a facsimile message.T?yC X-ԍ CEG/EIA Petition at 1516; Tandy at 56. T  X- o @@{ 21. 44Decision. We find that neither the TCPA nor our rules impose liability on  d(#manufacturers of telephone facsimile machines for the user's failure to input identifying  d(#information. Manufacturers and users are subject to separate and independent requirements.  d(#Persons sending telephone facsimile transmissions must mark any such transmission with  d(#identifying information (including date and time of transmission) and are liable if such  X1- d(#information is not included in a telephone facsimile message.u@1*C X -ԍ 47 U.S.C.  227(d)(1); see also 47 C.F.R.  63.318(c)(3).u Manufacturers must ensure that  d(#such machines are capable of clearly marking identifying information, and are liable if such  d(#machines cannot perform this function as manufactured. Neither the statutory language nor the  d(#legislative history give any indication that Congress intended by saying "clearly marks" that  d(#Lmanufacturers must provide a "disabling" function that would prevent operation of a facsimile  d(#machine if a user does not input identifying information. Rather, the manufacturing requirement  d(#facilitates user compliance with the identification requirement by providing for "automatic" as  d(#.opposed to manual identification on each facsimile transmission. From the user's perspective,  d(#this means that identifying information, once programmed into the device by the user, will be  d(#Mmarked on any subsequent facsimile transmission without further manual input. Of course,  XK- d(#manufacturers should enable users to change identifying information (e.g., to input sender's new telephone number or to change to/from daylight savings time).  X- o  @@{ 22. 44Notwithstanding the fact that the manufacturing and user identification rules are  d(#separate requirements, we recognize that machines that are extremely difficult to program may  d(#discourage user compliance with Section 227(d)(1) of the Communications Act and decrease the  d(#likelihood that users will mark the required information. Accordingly, the Domestic Facilities  X- d(#Division of the Common Carrier Bureau has suggested language, in a Public Notice issued  d(#January 13, 1993, Mimeo No. 31328 (Domestic Facilities Division), to be included in the  d(#instructions required for all equipment registered under Part 68, including telephone facsimile  d(#[machines. Programming user identification information should be reasonably simple to do and  d(#>how to do it should be explained in the user instructions that accompany Part 68 registered  d(#equipment. We expect that manufacturers will give a reasonably clear explanation to users on  d(# how to program the machine to identify required transmission information in the telephone  d(#facsimile machine's instruction manual. Allegations of a manufacturer's violation of the requirements of the statute or the rules will be resolved on a casebycase basis.  X - 5W!@@{ 23. CEG/EIA suggests that any requirements for user instructions with telephone facsimile" @0*(("  X- d(#ymachines should be raised through notice and comment rulemaking procedures.AAC Xy-ԍ CEG/EIA Petition at 18.A Our existing  d(#Mrules already require, however, that manufacturers give consumers instructions concerning  d(#installation of equipment registered under Part 68, and that descriptions of operation procedures  X- d(#also be included with all such equipment.CByC X-ԍ 47 C.F.R.  68.218(b).C We reject CEG/EIA's contention that these  d(#=requirements are not applicable to manufacturers of facsimile machines, or that they should be  d(#Lrevisited in notice and comment rulemaking proceedings pursuant to this particular revision of  Xv- d(#jour Part 68 rules. Significantly, we point out that the January 13 Public Notice suggests, rather  d(#than mandates, language for user instructions that would meet the identification requirements of the TCPA and our rules.  X - o ^@@{ 24. 44Scope of Manufacturing Requirement. CEG/EIA and Tandy request clarification that  X - d(#manufacturers need only provide the capability for users to input the date and time of  X - d(#transmission, and the sender's identity and phone number.RC *C X-ԍ CEG/EIA Petition at 1517, Tandy at 46.R Tandy argues that the TCPA does  d(#not require that manufacturers include an internal clock that would permit facsimile machines to  X -mark automatically the date and time on each transmission.9D C XJ-ԍ Tandy at 37. 9  X- o 1Ԭ@@{ 25. 44Decision. Because identification of the sender of a facsimile transmission, as well as  d(#the date and time of transmission, may only be determined after purchase of a facsimile machine,  d(#it literally is not possible to manufacture devices that "automatically" place such information on  d(#a facsimile transmission without user input. We agree with Tandy and CEG/EIA that the only  d(#reasonable interpretation of the manufacturing requirement is that machines manufactured after  X- d(#the effective date must have the capability to mark identifying information clearly on each  d(#transmission. With respect to whether telephone facsimile machines must employ an internal  d(#clock in marking date and time information, Tandy correctly observes that there is no explicit  d(#requirement that facsimile machines manufactured after the effective date of the rules must  d(#icontain an internal clock. The statute, however, is clear that manufacturers must ensure that such  d(#jmachines "clearly mark" identifying information, which includes the date and time the message  d(#is sent, regardless of the device used to provide this capability. It is not clear how this would  d(#Mbe feasible absent an internal clock. As we noted above, the `automatic' marking capability  d(#facilitates user compliance with the identification requirement. Machines that require manual  d(#linput of sender identification or the date and time for each transmission do not meet this requirement.  X - d(#| 26. Manufacturing Requirement Transition Period. Several commenters urge the"  D0*((y"  X- d(#Commission to provide a transition period for complying with the manufacturing requirement.EC Xy-ԍ 47 C.F.R.  68.318(c)(3). See CEG/EIA Petition at 1011; Motorola at 57; Tandy at 89.  d(#CEG/EIA requested a stay of the Commission's rules regarding the manufacture of telephone  X- d(#facsimile machines, which we denied.FyC X- d(#ԍ Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991,  X-Order, 7 FCC Rcd 8660 (1992)(Stay Order). We addressed all substantive arguments in favor of a  d(#\transition period for compliance with the manufacturing requirement (except with respect to  X- d(#^computer facsimile boardsGC Xh - d(#=ԍ Computer facsimile boards enable personal computers to transmit messages to or receive messages from conventional telephone facsimile machines or other computer fax boards. ) in the Stay Order. Our experience in the two years since  X- d(#implementation of the rules offers no indication of any difficulties in compliance. HC X - d(#/ԍ Since the effective date of the rules, the Commission has received 252 applications to  d(#register telephone facsimile machines in compliance with Section 68.318(c)(3), 47 C.F.R.  68.318(c)(3).  Accordingly, no further consideration of this matter is warranted.  XH- d(# 27. Computer or "Fax" Modem Boards. CEG/EIA, Motorola, and Tandy request clarification  d(#that computer telephone facsimile modem boards or "fax modem boards" are not "telephone  d(#=facsimile machines" as defined under the TCPA and are thus not subject to the manufacturing  X - d(#requirement.bI 0 C X-ԍ CEG/EIA Petition at 1718; Motorola at 35; Tandy at 7. b Section 227(a)(2) of the Communications Act reads as follows: "The term  d(#y`telephone facsimile machine' means equipment which has the capacity (A) to transcribe text or  d(#images, or both, from paper into an electronic signal and to transmit that signal over a regular  d(#telephone line, or (B) to transcribe text or images (or both) from an electronic signal received  d(#over a regular telephone line onto paper." This definition is incorporated in Section 64.1200(f)(2)  d(#of the Commission's rules. Fax boards enable personal computers to transmit messages to or  d(#\receive messages from conventional telephone facsimile machines or other fax boards. The  d(#parties contend that fax boards do not fit within the statutory definition of "telephone facsimile  d(#=machine" because fax boards only have electronic input and output, and thus do not have the  d(#capability to transcribe text onto or from paper. CEG/EIA and Motorola argue that a  d(#=Commission decision that fax boards are telephone facsimile machines as defined in the TCPA  d(#should be preceded by notice and comment procedures because the issue was not addressed in  X-the Report and Order or the record.UJ C X#-ԍ CEG/EIA Petition at 1718; Motorola at 56.U  X- d(#N 28. Decision. Section 227 (b)(1)(c) of the Communications Act prohibits the use of a  d(#!"telephone facsimile machine, computer, or other electronic device" to send unsolicited"J0*(("  X- d(#advertisements.KC Xy-ԍ#XQ\  P6Q XP# 47 U.S.C.  227(b)(1)(C).#XQ\  P6Q XP#є Section 227 (d)(1)(B) of the Communications Act prohibits the use of a  d(#["computer or other electronic device" to make any transmission without marking the date, time  X- d(#and identification of the entity or individual sending the message on the transmission.mLyC X-ԍ#XQ\  P6Q XP# 47 U.S.C.  227(d)(1)(B).m Facsimile  d(#modem boards enable personal computers to transmit messages to or receive messages from  d(#jconventional telephone facsimile machines or other computer fax modem boards. The Act thus  d(#clearly prohibits the use of fax modem boards to send unsolicited advertisements or to send any  d(#ytransmission that does not mark identifying information. Additionally, the statute requires any  d(#y"telephone facsimile machine" manufactured one year after the enactment of the TCPA to mark  XH-automatically identifying information on all facsimile transmissions.jMH*C X# -ԍ#XQ\  P6Q XP# 47 U.S.C.  227(d)(2).j  X - d(# 29. Congress prohibited the transmission of "junk faxes" to facsimile machines so that costs  X - d(#of advertising could not be shifted to the recipients of facsimile advertisements.iN C X-ԍ See H.R. Report No. 317, 102d Cong., 1st Sess. 25 (1991).i Recipients of  d(#fax advertisements assume the cost of the paper used, the cost associated with the use of the  d(#facsimile machine and the costs associated with the time spent by the facsimile machine when  d(#receiving a facsimile advertisement during which the machine cannot be used by its owner to  X - d(#send or receive facsimile transmissions.3O C X-ԍ Id.3 Fax modem boards are the functional equivalent of  d(#-standalone facsimile machines. The costs associated with receiving facsimile advertisements on  d(#Ma facsimile machine apply whether the facsimile was transmitted from a facsimile machine or  d(#from a computer via a facsimile modem board. The purpose of the requirement that facsimile  d(#machines have the capability to identify automatically senders or facsimile messages is to ensure  d(#that the requirement that all facsimile transmissions have identifying information is not  d(#circumvented. Congress could not have intended to allow easy circumvention of its prohibition  d(#on facsimile advertisements by simply using a computer to send a facsimile rather than a standalone facsimile machine.  X- d(# 30. We therefore reject CEG/EIA's contention that a separate rulemaking is required to  d(#xsubject fax boards to the requirements of the TCPA. Throughout the instant proceeding, we have  X- d(#yinterpreted and applied the terms and definitions (e.g., "established business relationship" and  d(#"prior express consent") set forth in the TCPA. The question of whether the definition of  d(#jtelephone facsimile machine includes fax boards is a matter of statutory interpretation that falls  d(#zsquarely within the scope of this proceeding. The statute is ambiguous with respect to this  d(#question and the legislative history provides no guidance. The manufacturing requirement in  d(#Section 227(d)(2) does not specifically address manufacturing of fax modem boards.  d(#ZNevertheless, it is reasonable to conclude that Congress would not apply different manufacturing" = O0*(("  d(#requirements to different devices whose users are subject to the same technical marking standards.  d(#Facsimile modem board manufacturers are clearly able to provide automatic identification  X- d(# capability in their devices.PC XK- d(##XQ\  P6Q XP#э Under Part 68 of the Commission's rules, all devices attached to the public telephone  d(#network must be registered with the Commission. Approximately 75 percent of facsimile modem  d(#zboards registered with the Commission pursuant to Part 68 already provide the capability of automatically marking sender identification.  There is no public policy served by interpreting the statutory  X- d(#ambiguity so as to exclude facsimile modem boards from the manufacturing requirement. We should resolve this issue in favor of a consistent approach for similar devices.  Xx- d(# 31. The Domestic Facilities Division indicated that manufacturing requirements would not  d(#be enforced against manufacturers of telephone facsimile machines pending Commission  XJ- d(# reconsideration proceedings.kQJ4C X/-ԍ See Public Notice, Mimeo No. 31328, January 13, 1993.k We recognize that some manufacturers of facsimile modem  d(#boards, having been unaware of their responsibilities under the TCPA and our rules, are not  d(#0prepared to comply immediately with our rules. We will refrain from enforcement of this  d(#.requirement until 90 days after the effective date of this order to permit manufacturers to bring their equipment into compliance with our rules regarding telephone facsimile machines.  X - d(# 32. Enforcement Jurisdiction. Section 64.1200(a)(3) of our rules bans the transmission of any  X - d(#1unsolicited advertisement to a telephone facsimile machine.R C X?- d(#=ԍ 47 C.F.R.  64.1200(a)(3) states that no person may "[u]se a telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine." The Fair Fax Coalition  d(#[("Coalition") urges the Commission to delete this provision from its rules in order to "reserv[e]  X{- d(#to the states, or to individuals, the rights of action specified under the law."LS{ C X-ԍ Fair Fax Coalition Petition at 14.L It argues that  d(#"Congress intended that Commission jurisdiction extend only to implementing regulations (such  d(#as the use of a national database) or technical regulations (such as those adopted by the  d(#yCommission concerning automatic telephone dialing and the information required to be printed  X- d(#<on each page of facsimile).":T0 C X -ԍ Id. at 12.: As a result of including the ban in its rules, the Coalition contends  X-that "the Commission confers upon itself exclusive jurisdiction over enforcement."U C X"- d(#ԍ Id. See Sections 227(b)(3), (c)(5) and (f)(1) of the Communications Act, 47 U.S.C.  227(b)(3), (c)(5), (f)(1).  X- d(#  33. Decision. We do not agree with the Coalition's interpretation of Section 64.1200(a)(3)  d(#?of the TCPA. The TCPA clearly anticipates intervention and enforcement action by the  d(#lCommission; it bars any civil action by a state against any defendant already named in a"{U0*(("  X- d(# complaint by the Commission.HVC Xy-ԍ 47 U.S.C.  227(f)(3), (7).H In addition, the TCPA grants the Commission the right to  X- d(#intervene in state actions against violators.WyC X- d(#ԍ 47 U.S.C.  227(f)(3) (requiring states to notify the Commission prior to taking enforcement action, and granting the Commission the right to intervene in any such action). Thus, nothing in the statute suggests an intent to bar  d(#xCommission action against those who violate the Act or our rules, nor has the petitioner indicated  d(#any statutory language or legislative history that supports their position. Nothing in the statute  d(#indicates an intent to limit Commission jurisdiction to enforce any specific section of the TCPA.  d(#Nor is there any evidence that states cannot enforce provisions against unsolicited facsimile  d(#advertisements absent a Commission complaint proceeding. We therefore reject the Coalition's  d(#jcontention that the Commission's jurisdiction is limited in the manner described or that the rule unwisely deprives states of enforcement capabilities.  X - d(# !34. Unsolicited Facsimile Advertisements. Some petitioners request clarification of whether  d(#Mresponsibility for compliance with the ban on unsolicited facsimile advertising and with the  d(#Kfacsimile identification requirement lies with the entity or entities on whose behalf such messages  X - d(#are sent or with service providers ("fax broadcasters").X C X- d(#ԍ Coalition Petition at 610; GTE at 24; U S West at 27; Xpedite at 57. The term "fax  d(#<broadcasters" is a term of art used by the commenters and others in the industry. The use of this  d(#term in this decision is not intended to refer to "broadcasters" as defined in the Communications Act of 1934, as amended.  Generally these commenters are fax  d(#broadcasters who disseminate facsimile messages for their clients. They favor excluding any fax  d(#broadcaster, whether or not a common carrier, from responsibility for compliance with the rules,  d(#=and assigning ultimate responsibility to the author or originator of the facsimile message. The  Xy- d(#commenters contend that the Report and Order indicates only that "carriers" would not be held  d(#liable, and did not indicate whether service providers who are not carriers would also be exempt  XK-from such requirements.TYK C X{-ԍ See Report and Order at 2829.T  X- d(# "35. Decision. We clarify that the entity or entities on whose behalf facsimiles are transmitted  d(#are ultimately liable for compliance with the rule banning unsolicited facsimile advertisements,  d(#and that fax broadcasters are not liable for compliance with this rule. This interpretation is  X- d(#consistent with the TCPA's legislative history, and with our finding in the Report and Order that  X- d(#carriers will not be held liable for the transmission of a prohibited message.BZ0 C X#-ԍ Report and Order at 29. S. Rep. No. 178, 102d Cong., 1st Sess. 9 (1991) states that:    @@{regulations concerning the use of these machines apply to the persons initiating  athe telephone call or sending the message and do not apply to the common  carrier or other entity that transmits the call or message and that is not the"F'Y0*((D'" originator controller of the content of the call or message.B We emphasize,"yZ0*((q"  d(#however, that facsimile broadcast services must ensure that their own identifying information  d(#=appears on fax broadcasts. We also point out that in cases where a facsimile is transmitted on  d(#behalf of multiple entities, the fax broadcaster must assure that each such entity is identified separately in accordance with the statutory requirement.  X- d(# #36. Prior Express Permission or Invitation. The Coalition, CWC, and Xpedite request a more  d(#precise definition of the term "prior express permission or invitation" as it applies in the context  X_- d(#of unsolicited facsimile advertisements.`[_yC X -ԍ CEG/EIA Petition at 39; CWC at 34; Xpedite at 1216.` Specifically, CWC and Xpedite propose a four d(#!pronged definition, in which invitation or permission would be demonstrated by: (1) an  d(#established business relationship; (2) publication or release of a facsimile telephone number; (3)  d(#refusal to contact a tollfree number to stop further transmissions; or (4) other action indicating  X - d(#Ma facsimile number for use in normal business communications.D\ *C X-ԍ CWC at 4; Xpedite at 23. D They argue that both the  X - d(#Report and Order and the legislative history support such a definition insofar as a person has  X -provided a facsimile number as one at which they wish to be reached.M] C Xa-ԍ Report and Order at 18.M  X - d(# $37. Decision. We are not persuaded that the definition of "prior express permission or  d(#.invitation" proposed by CWC and Xpedite would clarify Commission or statutory intent. The  Xy- d(#Report and Order makes clear that the existence of an established business relationship establishes  d(#consent to receive telephone facsimile advertisement transmissions. We do not believe that the  d(#intent of the TCPA is to equate mere distribution or publication of a telephone facsimile number  d(#with prior express permission or invitation to receive such advertisements, as the Coalition's  d(#proposed definition suggests. For example, our rules require that telephone facsimiles be marked  d(#with the telephone number of the sender or the sending machine; a facsimile sender's release of  d(#{a telephone facsimile number in order to comply with this regulation, however, could not  d(#{reasonably be viewed as consent to receipt of future facsimile advertisements. Similarly,  d(#ipublication of one's fax number would not constitute prior express permission or invitation absent  d(# the recipient's express consent to use of the telephone facsimile number for the purpose of  d(#receiving an advertisement. Moreover, it is important to note that Sections 227(b)(1)(A) and (C)  X|- d(#Zwere intended to prohibit the imposition of costs on the recipients of calls.o^|C X"-ԍ See H. Rep. No. 317, 102d Cong., 1st Sess. at 10 and 25 (1991).o Under the proposed  d(#Ndefinition, facsimile requests for permission to transmit would impose costs on facsimile  d(#recipients unless or until the recipient were able to ask that such transmissions be stopped. This  d(#[kind of "negative option" (in which the sender presumes consent unless advised otherwise) is  X - d(#contrary to the statutory requirement for prior express permission or invitation. In addition, given  d(#lthe variety of circumstances in which such numbers may be distributed (business cards," = ^0*((y"  d(#<advertisements, directory listings, trade journals, or by membership in an association), we believe  d(#it is appropriate to treat the issue of consent in any complaint regarding unsolicited facsimile advertisements on a casebycase basis. For these reasons, we reject the proposed definition.  X- d(#j %38. Identification requirements Telephone number. We reiterate our intent that residential  d(#subscribers may not be required to pay for procedures to protect them from unwanted  Xv- d(#solicitations.R_vC X-ԍ Report and Order at 15 n.45.R Numbers provided for identification purposes in telephone solicitations may not  d(#be numbers that require the recipient of a solicitation to incur more than nominal costs for  XH- d(#making a donotcall request (i.e., for which charges exceed costs for transmission of local or  d(#ordinary stationtostation long distance calls). In addition to prohibiting charges to protect  d(#[residential privacy, the TCPA and our rules prohibit calls that impose costs on the called party  X - d(#(e.g., calls to paging and cellular numbers, facsimile advertisements). We now modify the  d(#ylanguage of Sections 64.1200(e)(2)(iv) and 68.318(c)(3) of the Commission's rules to ensure that  X -the intent of the TCPA and our rules is not thwarted.t` yC X-ԍ See Appendix, 47 C.F.R.  64.1200(e)(2)(iv) and 68.318(c)(3).t  X-HY CONCLUSION ă  Xb- d(# &39. In this Order, we resolve issues raised on reconsideration of the Report and Order.  d(#Specifically, we clarify that our rules will treat calls made on behalf of taxexempt nonprofit  d(#jorganizations as calls made directly by those organizations. In addition, we amend the rules to  d(#require that donotcall request records must be maintained for 10 years after a request is made.  d(#We clarify the application of our rules with respect to debt collection calls and the meaning of  d(#established business relationship. Moreover, we define the scope of our rules regarding the use  d(#.of telephone facsimile machines, particularly with respect to the treatment of computer modem  d(#=boards ("fax boards"), identification requirements, and facsimile service providers. Finally, we  d(#.amend our rules to ensure that the costs of privacy protection are not borne by the residential  d(#subscriber. Our objective is to permit continued protection of consumer privacy interests while  d(#ensuring that compliance with our rules does not unduly burden businesses. In each instance, we  d(#\have carefully balanced our mandate to protect consumers' privacy with the imperative that telemarketing practices not be unreasonably hindered.  X-@@{ ""*`0*((!"Ԍ X-A ORDERING CLAUSES ă  X- d(#[ '40. Accordingly, IT IS ORDERED, that the petitions for reconsideration and/or clarification are DENIED in part and GRANTED in part, in accordance with this order.  X-  X- d(# (41. IT IS FURTHER ORDERED, that within 90 days after the effective date of this order,  d(#telephone facsimile modem boards, which enable personal computers to transmit messages to or  d(#receive messages from conventional telephone facsimile machines or other computer fax boards, must be manufactured in compliance with the Commission's rules as set forth in this order.  X - d(#O )42. IT IS FURTHER ORDERED, that the Commission's rules and regulations ARE AMENDED as set forth in the attached Appendix.  X -@@{   ;bFEDERAL COMMUNICATIONS COMMISSION  Xb-@@{   ;bWilliam F. Caton  XK-@@{   ;bActing Secretary "4`0*(("  X-d APPENDIX ă Title 47 of the Code of Federal Regulations, parts 64 and 68, are amended as follows:  X_-  64.1200 Delivery Restrictions Section 64.1200(e) is revised to read:  X - (e) * * *  X - (2) * * *  X -  d(#-X@4(  !%'0*,.8135@8:message. Facsimile modem boards manufactured on and after [insert date] must comply  X -with the requirements of this section.(#  X -