******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Federal Communications CommissionWashington, D.C. 20554 August 19, 1998 James T. Bruce, III Wiley, Rein & Fielding 1776 K Street, N.W. Washington, D.C. 20006 Dear Mr. Bruce: I am writing in response to your July 31, 1998, letter requesting that the Commission issue an opinion clarifying certain sections of the Telephone Consumer Protection Act (TCPA), and Commission's rules and orders implementing the TCPA. Specifically, you asked whether the TCPA compels a telemarketer to honor lists of telephone numbers submitted by third parties for addition to the telemarketer's do-not-call list. In your letter you state that a number of telemarketers have received written lists of phone numbers from people claiming to represent groups of consumers. You also note that these third parties assert that telemarketers will be in violation of the TCPA if the lists of numbers are not accepted by the telemarketers and added to their do-not-call lists. You assert that a Commission policy mandating acceptance of such written lists raises a number of problems such as: the effectiveness of Commission enforcement; preservation of company-specific do-not-call list regulations; proof of agency; and the potential for anti-competitive abuses. You note, for example, that lists compiled by third parties could contain inaccurate information but that the telemarketer would be held responsible for the accuracy of the do-not-call list that it maintains. In addition, you note that the Commission's order adopting the do-not-call policy clearly allows telemarketers to make at least one call to a residential consumer. The TCPA recognizes the legitimacy of the telemarketing industry but notes that unrestricted telemarketing could be an invasion of privacy and, in some instances, a risk to public safety. One of the Commission's tasks with regard to implementing the TCPA was to consider which methods would best accommodate telephone subscribers who do not wish to receive unsolicited advertisements, including live voice solicitations, while not unduly hampering the telemarketing industry. After considering a number of options, the Commission concluded that company-specific do-not-call lists would be the most effective, least costly, and most easily implemented means of curbing unwanted telephone solicitations. See Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CC Docket No. 92-90, Report and Order, 7 FCC Rcd 8752, 8763-65 (1992). In the Report and Order, the Commission stated that the company- specific do-not-call lists would best protect residential subscriber confidentiality because do-not- call lists would not be universally accessible and could be verified with a telemarketer's own customer information. When describing the company-specific do-not-call list option in the Notice of Proposed Rulemaking, the Commission noted that a telemarketing entity usually "has become aware of the subscriber's wishes through a prior telemarketing contact during which the subscriber asked not to be contacted in the future." See The Telephone Consumer Protection Act of 1991, CC Docket No. 92-90, Notice of Proposed Rulemaking, 7 FCC Rcd 2736 (1992). Moreover, section 64.1200(e)(2)(iii) of the Commission's rules states: 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. Section 64.1200(e)(2)(iii) establishes that a telephone subscriber may request not to receive telephone solicitation calls. In the Report and Order, the Commission states that the do-not-call list requirements were designed to help ensure that residential subscriber privacy is protected from further undesired solicitations and that mandatory company-specific do-not-call lists allow residential subscribers to halt calls selectively from specific businesses from which they do not wish to hear. These Commission orders and regulations mandate that telemarketers respond to specific requests by individual subscribers to place those subscribers upon a telemarketer's do- not-call list, and the entity on whose behalf a solicitation is made is responsible for honoring an individual's request. Since liability for failure to honor an individual's request is placed on the entity making the solicitation, it is reasonable to allow telemarketers to determine under what circumstances they accept lists of numbers compiled by third parties, particularly since the Commission's regulations do not specifically address the compilation of lists of names by third parties. Further, we note that your letter suggests that telemarketers may choose to cooperate with third parties who compile customer lists as good business practice. You also state that the Report and Order clearly allows telemarketers to make at least one call to a residential consumer. Section 227(c)(5) of the TCPA states that "[a] person who has received more than one telephone call [emphasis added] within any 12-month period by or on behalf of the same entity in violation of the regulations prescribed under this section" may bring an appropriate action in state court to recover for actual monetary loss from such a violation, or to receive up to $500 in damages. Nothing in our rules would prevent a telemarketer from making an initial live voice solicitation to a residential subscriber, although no further contacts should be made once the consumer makes a request not to receive such solicitations. Again, we note that you state in your letter that telemarketers may choose not to contact an individual that already has requested to be placed on a do-not-call list as a matter of good business practice. I hope that this information is helpful. Sincerely, Geraldine A. Matise Chief, Network Services Division Common Carrier Bureau