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CGB Seeks Comment on Petition for Declaratory Ruling Filed by Acurian

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Released: February 20, 2014

PUBLIC NOTICE

Federal Communications Commission

News Media Information 202 / 418-0500

445 12th St., S.W.

Internet: http://www.fcc.gov

Washington, D.C. 20554

TTY: 1-888-835-5322

DA 14-229

Released: February 20, 2014

CONSUMER AND GOVERNMENTAL AFFAIRS BUREAU SEEKS COMMENT ON

PETITION FOR DECLARATORY RULING FILED BY ACURIAN, INC.

CG Docket No. 02-278

Comment Date: March 24, 2014
Reply Comment Date: April 8, 2014

With this Public Notice, we seek comment on a Petition for Declaratory Ruling filed by Acurian,
Inc.1 (Acurian) asking the Commission to clarify that a telephone call to a residential telephone line
seeking an individual’s participation in a clinical pharmaceutical trial is exempt from the restrictions on
prerecorded calls enacted as part of the Telephone Consumer Protection Act of 1991 (“TCPA”).2 The
TCPA and the Commission’s rules require prior express written consent to place prerecorded calls to
residential lines unless otherwise exempt.3 As authorized by the TCPA, the Commission’s rules exempt
from this restriction non-commercial calls and commercial calls that do not include or introduce an
advertisement or constitute telemarketing, among others.4
Acurian states that its prerecorded calls to residential lines are not made for a commercial
purpose.5 Acurian notes that the purpose of its calls is to match qualified candidates who have expressed
interest in participating in clinical pharmaceutical trials with doctors performing those trials and to
comply with Food and Drug Administration regulations.6 Alternatively, Acurian asserts that if its calls
are found to be commercial, these calls do not introduce or include an advertisement or constitute
telemarketing.7 In addition, Acurian indicates that its calls serve the public interest in that they help to
match potential candidates with clinical trials, thereby reducing drug and health care costs and


1 See Acurian, Inc., Petition for Declaratory Ruling, CG Docket No. 02-278 (filed Feb. 5, 2014) (Petition).
2 See 47 U.S.C. § 227. The statutory exemptions are codified at 47 U.S.C. § 227(b)(2)(B).
3 47 U.S.C. § 227(b)(1)(B); 47 C.F.R. § 64.1200(a)(3).
4 47 C.F.R. § 64.1200(a)(3)(i)-(iv) (also exempting emergency calls and calls made by or on behalf of a tax-exempt
nonprofit organization).
5 Petition at 2, 9.
6 Id. at 3-4, 10. Acurian states that its telephone communications do not entail commercial solicitation or marketing
of any kind; the sole purpose of these calls is to contact the individual and refer him or her to a local doctor who is
participating in a clinical trial in which they are interested. Id. at 3-4.
7 Id. at 5.

contributing to the availability of new drugs.8 Finally, Acurian states that its requested clarification
would ensure that the regulation of prerecorded calls is constitutional because, it maintains, such a
restriction of Acurian’s calls would not survive review under the First Amendment.9
Pursuant to sections 1.415 and 1.419 of the Commission’s rules,10 interested parties may file
comments and reply comments on or before the respective dates indicated on the first page of this Notice.
Comments may be filed using the Commission’s Electronic Comment Filing System (ECFS). See
Electronic Filing of Documents in Rulemaking Proceedings
, 63 FR 24121 (1998).
§
Electronic Filers: Comments may be filed electronically using the Internet by accessing the
ECFS: http://fjallfoss.fcc.gov/ecfs2/.
§
Paper Filers: Parties who choose to file by paper must file an original and one copy of each
filing.
§
Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by
first-class or overnight U.S. Postal Service mail. All filings must be addressed to the
Commission’s Secretary, Office of the Secretary, Federal Communications Commission.
§
All hand-delivered or messenger-delivered paper filings for the Commission’s Secretary must
be delivered to FCC Headquarters at 445 12th St., SW, Room TW-A325, Washington, DC
20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together
with rubber bands or fasteners. Any envelopes and boxes must be disposed of before
entering the building.
§
Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail)
must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.
§
U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th
Street, SW, Washington DC 20554.
People with Disabilities: To request materials in accessible formats for people with disabilities (braille,
large print, electronic files, audio format), send an e-mail to fcc504@fcc.gov or call the Consumer and
Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).
The proceeding this Notice initiates shall be treated as a “permit-but-disclose” proceeding in
accordance with the Commission’s ex parte rules.11 Persons making ex parte presentations must file a
copy of any written presentation or a memorandum summarizing any oral presentation within two
business days after the presentation (unless a different deadline applicable to the Sunshine period applies).
Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation


8 Id. at 13.
9 Id. at 14-16.
10 47 C.F.R. §§ 1.415, 1.419.
11 47 C.F.R. §§ 1.1200 et seq.
2

must (1) list all persons attending or otherwise participating in the meeting at which the ex parte
presentation was made, and (2) summarize all data presented and arguments made during the
presentation. If the presentation consisted in whole or in part of the presentation of data or arguments
already reflected in the presenter’s written comments, memoranda or other filings in the proceeding, the
presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or
other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be
found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission
staff during ex parte meetings are deemed to be written ex parte presentations and must be filed
consistent with rule 1.1206(b). In proceedings governed by rule 1.49(f) or for which the Commission has
made available a method of electronic filing, written ex parte presentations and memoranda summarizing
oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment
filing system available for that proceeding, and must be filed in their native format (e.g., .doc, .xml, .ppt,
searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission’s ex
parte
rules.

FOR FURTHER INFORMATION CONTACT:

Karen Johnson, Consumer and Governmental Affairs
Bureau, Federal Communications Commission, 202-418-7706, and karen.johnson@fcc.gov.
-FCC-
3

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