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Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554
In the Matter of )
)
Consumer.Net, )
)
Complainant, )
)
v. ) File No. E-98-46
)
AT&T Corp., )
)
Defendant. )
ORDER
Adopted: December 17, 1999
Released: December 28, 1999
I. INTRODUCTION
By the Commission:
I. In this order we grant in part and deny in part a
formal complaint filed by Consumer.Net, pro se, against AT&T
Corporation (AT&T) pursuant to section 208 of the Communications
Act of 1934, as amended (the Act). Consumer.Net seeks a
Commission order (1) declaring that AT&T's telemarketing
practices at issue violated the Telephone Consumer Protection Act
of 1991 (TCPA)1 and certain of the Commission's rules and orders
implementing the TCPA; (2) enjoining AT&T from conducting further
telephone solicitations; and (3) imposing fines of approximately
$100 million against AT&T.2 For the reasons discussed below, we
find that, on one occasion, AT&T violated the Commission's rules
by failing to make a copy of its do-not-call policy available
upon demand. We also find that, on one occasion, AT&T violated
the Commission's rules by initiating a telephone solicitation
despite a residential telephone subscriber's prior do-not-call
request. We further find that, with respect to all of the other
alleged violations of law, Consumer.Net has failed to satisfy its
burden of proof.
II. BACKGROUND
A. The Telephone Consumer Protection Act
1 On December 20, 1991, Congress enacted the TCPA, which
amended Title II of the Act by adding a new section, 47 U.S.C. §
227. The TCPA, among other things, directed the Commission to
establish regulations to protect the privacy rights of citizens
by restricting the use of the telephone network for unsolicited
advertising.3 In particular, the TCPA instructed the Commission
to adopt rules "concerning the need to protect residential
telephone subscribers' privacy rights to avoid receiving
telephone solicitations to which they object."4
2 As directed by Congress, the Commission established
rules governing telephone solicitations that balanced the privacy
concerns that the TCPA seeks to protect against the continued
viability of the telemarketing industry.5 As part of this
rulemaking, the Commission concluded that requiring the
maintenance of company-specific do-not-call lists would be the
most effective and efficient means for telephone subscribers to
avoid unwanted telephone solicitations.6 Thus, the Commission
adopted a rule requiring that no person or entity shall engage in
any telephone solicitation unless such person or entity has
instituted procedures for maintaining a list of residential
subscribers who do not wish to be called by that person or entity
(do-not-call list).7
3 The Commission also adopted specific rules for
establishing and maintaining such company-specific do-not-call
lists.8 The Commission's rules require, among other things, that
persons or entities making telephone solicitations to residential
telephone subscribers must: (1) develop written policies for
maintaining their do-not-call lists and make such written
policies available upon demand; (2) inform and train their
personnel engaged in any aspect of telephone solicitation about
the existence and use of the do-not-call list; (3) place
consumers that request not to receive further telephone
solicitations on a do-not-call list; (4) identify themselves and
the entity on whose behalf the telephone solicitation is made to
called parties; and (5) honor each do-not-call request for 10
years from the time the request is made. The Commission further
concluded that, in the absence of a specific request to the
contrary, a residential telephone subscriber's do-not-call
request generally applies only to the particular business entity
making the call (or on whose behalf the call is being made),
rather than to entities affiliated with the soliciting entity.9
Finally, our rules establish that the entity on whose behalf the
solicitation is made ultimately will be liable for the
maintenance of its do-not-call list and for any problems arising
in the maintenance and accuracy of the list.10
B. Consumer.Net's Complaint
4 Consumer.Net alleges that AT&T violated the TCPA and
Commission rules regarding telephone solicitations "in virtually
every aspect of [its] telemarketing program."11 Consumer.Net
bases these allegations on telephone solicitations from AT&T (or
AT&T's agent) to Consumer.Net's director, Russell Smith (Smith),
and two additional residential telephone subscribers, Robert
Biggerstaff (Biggerstaff) and Richard Zelma (Zelma).12 In
particular, Consumer.Net contends that AT&T violated the TCPA and
Commission rules by failing: (1) to provide AT&T's written do-
not-call policy to Biggerstaff and Zelma upon demand;13 (2) to
properly record Biggerstaff and Zelma's do-not-call requests;14
(3) to apply Zelma's do-not-call request to AT&T's affiliated
entities;15 and (4) to honor Zelma's do-not-call request for 10
years.16
III. DISCUSSION
A. The Complainant Has the Burden of Proof in a Formal
Complaint Proceeding.
5 It is well established that the complainant has the
burden of proof in a formal complaint proceeding under section
208 of the Act.17 Thus, in order to prevail, the complainant
must demonstrate by a preponderance of the evidence that the
alleged violation of the Act or the Commission's rules actually
occurred.18 In other words, a complainant must provide facts,
which if true, are sufficient to constitute a violation of the
Act or of a Commission rule or orders,19 and such facts must be
persuasively supported by affidavit or other relevant
documentation.20
6 Although Consumer.Net's complaint alleged violations of
the Act and the Commission's rules and orders, it contained
neither a complete statement of the facts on which the complaint
was based nor documentation sufficient to substantiate its
allegations. Nonetheless, because Consumer.Net pursued this
action as a pro se complainant, the former Enforcement Division
of the Common Carrier Bureau (Division) endeavored to ensure that
Consumer.Net had adequate opportunity to explain its allegations
and to provide the necessary evidence to support its claims.
Towards that end, the Division held status conferences with the
parties on August 11, 1998 and on August 12, 1998. During these
status conferences, the Division explained what information would
be necessary to support the claims and defenses.21 The Division
then permitted the parties to submit briefs in order to elucidate
and support their positions as completely as possible.22
B.Consumer.Net Largely Has Not Met Its Burden of Proving that
AT&T Failed to Make AT&T's Written Do-Not-Call Policy
Available on Demand.
7 Section 64.1200(e)(2)(i) of the Commission's rules
requires, inter alia, that "[p]ersons or entities making
telephone solicitations must have a written policy, available
upon demand, for maintaining a do-not-call list."23 Consumer.Net
contends that AT&T violated that rule in several ways. More
specifically, Consumer.Net argues that: (1) AT&T's 30-day delay
in sending its do-not-call policy to Zelma after one of his
requests was unreasonable; (2) AT&T failed to provide either
Biggerstaff or Zelma with a copy of AT&T's do-not-call policy
upon certain of their requests; and (3) AT&T's provision of a
letter to Biggerstaff and Zelma describing AT&T's do-not-call
policy does not constitute the provision of a written copy of
AT&T's do-not-call policy.24 AT&T denies these allegations and
argues, inter alia, that the numerous copies of its do-not-call
policy attached to the complaint refute Consumer.Net's
allegations that AT&T failed to make its do-not-call policy
available upon demand.25 For the reasons discussed below, we
conclude that, with regard to all but one claim, Consumer.Net has
failed to establish that AT&T did not make its do-not-call policy
available on demand.
1.Consumer.Net has not met its burden of proving that AT&T
failed to make available to Zelma a copy of AT&T's do-
not-call policy within a reasonable period after
Zelma's request on or about July 7, 1997.
8 Consumer.Net argues that AT&T violated section
64.1200(e)(2)(i) of the Commission's rules by not making
available to Zelma AT&T's written do-not-call policy within a
reasonable period after Zelma's request on or about July 7,
1997.26 In support of its position, Consumer.Net contends that
AT&T did not send a copy of AT&T's do-not-call policy to Zelma
until August 11, 1997, nearly five weeks after Zelma's July 7,
1997 request.27 Consumer.Net relies on a decision by a
California small claims court, which found that a bank violated
section 64.1200(e)(2)(i) of the Commission's rules by sending a
copy of the bank's do-not-call policy five weeks after request
therefor.28
9 Section 64.1200(e)(2)(i) of the Commission's rules
requires "[p]ersons or entities making telephone solicitations
[to] have a written policy, available upon demand, for
maintaining a do-not-call list."29 Neither the Commission's
rules nor the Commission's orders defines the term "available
upon demand." Therefore, whether an entity has made a written
copy of its do-not-call policy "available upon demand" requires
an analysis of the facts and circumstances of each particular
case. Based on the facts before us, we find that AT&T in this
instance did make a copy of its do-not-call policy available to
Zelma upon demand within the meaning of section 64.1200(e)(2)(i).
10 Consumer.Net states that Zelma requested a copy of
AT&T's do-not-call policy on July 7, 1997, and that AT&T did not
send its policy to Zelma until August 11, 1997.30 Consumer.Net's
own documentation, however, refutes its claim that AT&T did not
send the policy to Zelma until August 11, 1997. The record
indicates that AT&T responded to Zelma's July 7, 1997 request by
sending its do-not-call policy to Zelma on July 14, 1997.31 The
record indicates that Zelma again contacted AT&T to request a
copy of AT&T's do-not-call policy on July 30, 1997.32 On August
11, 1997, AT&T sent its do-not-call policy to Zelma in response
to his July 30, 1997 request.33 In sum, the record illustrates
that, contrary to Consumer.Net's contention, AT&T's August 11,
1997 letter was a timely response to Zelma's July 30, 1997
request, rather than an untimely response to Zelma's July 7, 1997
request. Moreover, we find that AT&T's response times of seven
days and twelve days, respectively, are reasonable, given the
facts and circumstances in this case. Indeed, Consumer.Net does
not contend that such response times are unreasonable.
Accordingly, we find that AT&T made a copy of its do-not-call
policy available to Zelma upon demand in accordance with section
64.1200(e)(2)(i) of the Commission's rules.34
2.Consumer.Net has met its burden of proving that AT&T
failed to make AT&T's do-not-call policy available to
Biggerstaff upon his May 8, 1997 demand.
11 Consumer.Net contends that AT&T violated the
Commission's rules and orders by not making available to
Biggerstaff AT&T's written do-not-call policy upon demand.35 In
response, AT&T argues that Biggerstaff never requested AT&T's do-
not-call policy.36 For the reasons discussed below, we find that
AT&T failed to make a copy of its do-not-call policy available to
Biggerstaff upon his demand, in violation of the Commission's
rules.
12 Consumer.Net contends that (1) Biggerstaff requested a
copy of AT&T's do-not-call policy during the course of a May 8,
1997 telephone solicitation, and (2) AT&T failed to honor
Biggerstaff's request.37 In support of this contention,
Consumer.Net submitted a cassette tape that contains a recording
of a May 8, 1997 telephone solicitation from an AT&T
representative to Biggerstaff.38 AT&T does not contest the
accuracy or the authenticity of the Biggerstaff Tape.39 AT&T
also does not contest that it failed to provide Biggerstaff with
its do-not-call policy in response to the May 8, 1997 call. AT&T
argues only that Biggerstaff did not make an unequivocal request
for its do-not-call policy during the May 8, 1997 call.40
13 We find that the Biggerstaff Tape demonstrates that
Biggerstaff did request a copy of AT&T's do-not-call policy on
May 8, 1997. Specifically, Biggerstaff stated to the AT&T
telemarketer: "I would like you to send me a copy of your do-not-
contact policy."41 In response, the AT&T telemarketer stated
that she was unsure whether she had the authority to send the
policy but offered to check with her supervisor. The
telemarketer's authority to provide AT&T's do-not-call policy,
however, should not have been a subject for discussion; AT&T
should have had procedures in place to process such requests, and
the telemarketer should have known of them. Thus, we find that
AT&T violated section 64.1200(e)(2)(i) of the Commission's rules
by not making a copy of AT&T's do-not-call policy available to
Biggerstaff upon his May 8, 1997 demand.
3.Consumer.Net has not met its burden of proving that AT&T
failed to make AT&T's do-not-call policy available to
Zelma upon demand.
14 Consumer.Net also contends that AT&T failed to honor a
February 24, 1998 request from Zelma for AT&T's do-not-call
policy.42 In response, AT&T states that it provided Zelma a copy
of its do-not-call policy on several occasions.43 Consumer.Net's
only record evidence that Zelma requested AT&T's do-not-call
policy in this instance is Zelma's written but unsworn assertion
that he "received [a] solicitation for the AT&T Universal Card"
on February 24, 1998, and "called the number provided to complain
[and] asked for the written policy but never received one."44
15 We conclude that Consumer.Net has not provided
sufficient evidence to satisfy its burden of proving that Zelma
indeed contacted AT&T on February 24, 1998 and requested a copy
of AT&T's do-not-call policy. Although the Division met with
Consumer.Net on several occasions to explain the evidence
necessary to support a claim and allowed Consumer.Net to file
additional supporting materials, Consumer.Net has failed to
provide the information necessary to support its claim. First,
Consumer.Net did not provide a sworn statement (or statement
filed under penalty of perjury) from Zelma. In any event,
Zelma's statement does not provide essential corroborative
information such as the particular AT&T number contacted, the
specific AT&T division called, or the name of the person with
whom he allegedly spoke. Such information also is essential to
providing the defendant with a reasonable opportunity to
investigate, and thereby rebut, the allegations. Finally, the
record indicates that AT&T on two previous occasions provided
Zelma with copies of its do-not-call policy promptly upon Zelma's
request.45 We find, therefore, that Zelma's unsworn statement,
without any additional evidence substantiating that Zelma
contacted AT&T to request a copy of AT&T's do-not-call policy on
February 24, 1998, is insufficient to prove by a preponderance of
the evidence that Zelma actually made such a request.
Accordingly, we conclude that Consumer.Net has failed to meet its
burden of proof that AT&T violated section 64.1200(e)(2)(i) of
the Commission's rules by not providing to Zelma AT&T's do-not-
call policy upon a demand allegedly made on February 24, 1998.
4.Consumer.Net has failed to demonstrate that two of AT&T's
letters to Zelma are insufficient to constitute AT&T's
do-not-call policy.
16 Consumer.Net contends that AT&T violated section
64.1200(e)(2)(i) of the Commission's rules by sending Zelma two
letters describing AT&T's do-not-call policy instead of sending
AT&T's actual do-not-call policy.46 Consumer.Net argues that the
AT&T letters are not "sufficient in scope to describe AT&T's do
not call policy," or to inform consumers how they can be placed
on AT&T's do-not-call list.47
17 Based on our review of the two AT&T letters in
question, we reject Consumer.Net's contentions in this regard.
There is no evidence to suggest that AT&T's letters to Zelma do
not contain its actual policy. In any event, the letters
sufficiently detail AT&T's method and policy for maintaining a
do-not-call list. In particular, the letters state how AT&T
processes a do-not-call request. The letters also state that the
consumer will receive a written confirmation of his or her do-
not-call request and provide an address to which to direct any
inquiries regarding its do-not-call list.48 We thus conclude
that AT&T complied with the requirement to make a do-not-call
policy available upon demand.49
C.Consumer.Net Has Not Met Its Burden of Proving that AT&T Failed
to Properly Record Biggerstaff's Do-Not-Call Requests or
that AT&T Failed to Honor Biggerstaff's Do-Not-Call Requests
for a Period of 10 Years.
18 Section 64.1200(e)(2) of the Commission's rules
requires that in response to a do-not-call request, the solicitor
must, inter alia, record the solicitee's name and the telephone
number called.50 Thus, the do-not-call request applies to a
particular telephone number¾not all telephone numbers associated
with the person's name¾absent a specific request to the contrary.
The solicitor must then honor the do-not-call request for ten
years from the time the request is made.51 Moreover, absent a
specific request or reasonable expectation to the contrary, the
do-not-call request applies only to the particular business
entity making the call, and not ordinarily to affiliated
entities.52
19 Consumer.Net alleges that AT&T continued to place
telephone solicitations to Biggerstaff after he requested to be
placed on AT&T's long distance do-not-call list, in violation of
section 64.1200(e)(2) of the Commission's rules. In particular,
liberally construing Consumer.Net's pro se pleading, Consumer.Net
apparently contends that AT&T: (1) failed to record Biggerstaff's
do-not-call requests, in violation of section 64.1200(e)(2)(iii),
and (2) failed to honor Biggerstaff's do-not-call requests for
ten years from the time the requests were made, in violation of
section 64.1200(e)(2)(vi).53 Consumer.Net bases its claims on
evidence in the record regarding telephone calls to certain of
Biggerstaff's telephone numbers on the following dates: May 8,
1997; May 6, 1998; and June 4, 1998.54 On each occasion, AT&T
placed the telephone solicitation calls to offer the same
product, AT&T long distance.55 Although the Division met with
Consumer.Net on several occasions to explain the evidence
necessary to support a claim and allowed Consumer.Net to file
additional information to support its position, Consumer.Net
submitted neither a sworn statement from the consumer nor any
corroborating evidence.
20 Telephone Solicitation to (803) XXX-3805 on May 8,
1997. Consumer.Net contends that AT&T initiated a telephone
solicitation to Biggerstaff on May 8, 1997, in violation of
Biggerstaff's prior do-not-call requests.56 In response, AT&T
states that Biggerstaff did not request that any of his telephone
numbers be placed on any AT&T do-not-call list until July 28,
1998.57
21 To support its claim that Biggerstaff requested that
telephone number (803) XXX-3805 be placed on AT&T's long distance
services do-not-call list prior to May 8, 1997, Consumer.Net
relies solely on Biggerstaff's June 18, 1998 affidavit.
Biggerstaff's affidavit states, in pertinent part, "[p]rior to
November 4, 1996, I received multiple telephone solicitations at
my home by or on behalf of AT&T . . . . In each and every one of
these calls . . . I requested the caller to not call me again."58
22 We find that Biggerstaff's affidavit is insufficient to
demonstrate that he requested that telephone number (803) XXX-
3805 be placed on AT&T's long distance services do-not-call list
prior to receiving the May 8, 1997 telephone solicitation.
Biggerstaff does not state which of his several telephone numbers
he requested be placed on AT&T's do-not-call list,59 nor does he
provide any information as to when these requests were made,
other than to state that they were made prior to November 4,
1996.60 In addition, Biggerstaff does not indicate which AT&T
entity (e.g., AT&T long distance services, AT&T International
Services) solicited him in the telephone solicitations prior to
May 8, 1997, or which AT&T entity he requested not to contact
him. We find that such vague assertions do not provide defendant
with a reasonable basis to investigate or rebut the allegations.
We therefore find that Consumer.Net has not met its burden of
substantiating this claim.
23 Telephone Solicitation to (803) XXX-8524 on May 6,
1998. Consumer.Net also contends that AT&T's May 6, 1998
telephone solicitation to Biggerstaff's telephone number (803)
XXX-8524 violated Biggerstaff's do-not-call request made on May
8, 1997.61 AT&T again argues that Biggerstaff did not request
that telephone number (803) XXX-8524 be placed on AT&T's do-not-
call list until July 28, 1998.62
24 Consumer.Net relies solely on Biggerstaff's June 18,
1998 affidavit, which states, in pertinent part, that he
requested to be placed on AT&T's do-not-call list during the
course of the May 8, 1997 telephone solicitation.63 The record
shows, however, that AT&T made the May 8, 1997 telephone
solicitation to telephone number (803) XXX-3805, not the
telephone number contacted during the May 6, 1998 telephone
solicitation, which the record shows to have been made to (803)
XXX-8524.64 As stated above, absent a particular request
otherwise, a do-not-call request applies to a specific telephone
number, not to all telephone numbers associated with the
requestor.65 Consumer.Net has not demonstrated that Biggerstaff
specifically requested that telephone number (803) XXX-8524 be
placed on any AT&T do-not-call list prior to receiving the May 6,
1998 telephone solicitation. In fact, the Biggerstaff Tape
indicates that he did not request that any particular number, or
all of his telephone numbers, be placed on AT&T's do-not-call
list.66 Therefore, Consumer.Net has not met its burden of
demonstrating that Biggerstaff requested telephone number (803)
XXX-8524 be placed on AT&T's do-not-call list prior to receiving
the May 6, 1998 telephone solicitation.
25 Telephone Solicitation to (803) XXX-8524 on June 4,
1998. Consumer.Net also contends that AT&T initiated a telephone
solicitation on June 4, 1998, to Biggerstaff's telephone number
(803) XXX-8524, in violation of Biggerstaff's do-not-call request
made on May 6, 1998.67 To support its contention that
Biggerstaff received a telephone solicitation on June 4, 1998,
Consumer.Net provides a tape recording of the June 4, 1998
telephone solicitation. The recording indicates that AT&T's
telemarketer reached Biggerstaff's answering machine on May 6,
1998. Consumer.Net contends that Biggerstaff's answering machine
greeting contained a request to any telemarketer to be placed on
that telemarketer's do-not-call list.
26 We find that Consumer.Net has failed to demonstrate
that Biggerstaff requested that telephone number (803) XXX-8524
be placed on AT&T's do-not-call list prior to receiving the June
4, 1998 telephone solicitation. Consumer.Net relies solely on
the assumption that the caller listened to the following recorded
message, in its entirety, which was conveyed by Biggerstaff's
answering machine:
Hello [brief pause] . . . excuse me, could you please state
who is calling [brief pause]. I'm sorry, you've gotten
the machine. If this is a solicitation call, please
wait until the end of this message and leave all
disclosures as required by the telemarketing statute,
and place this number on your do-not-call list.68
27 The record does not indicate that the AT&T telemarketer
remained on the line long enough to hear Biggerstaff's entire
recorded message. As the above quotation reveals, Biggerstaff
does not request to be placed on the telemarketer's do-not-call
list until the very end of the message, and after notifying the
caller that s/he has received an answering machine. We cannot
simply assume that the caller actually heard the do-not-call
request. Accordingly, we conclude that Consumer.Net has not met
its burden of proving that AT&T failed to honor Biggerstaff's
alleged May 6, 1998 do-not-call request by making the June 4,
1998 telephone solicitation.69
D.Consumer.Net Has Met its Burden of Proving that AT&T Violated
the Commission's Rules by Initiating a Telephone
Solicitation to Zelma on October 29, 1997, in Violation of
Zelma's Prior Company-Wide
Do-Not-Call Request.
28 The Commission's rules mandate that, "in the absence of
a specific request 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 the call is being made), and
will not apply to affiliated entities unless the consumer
reasonably would expect them to be included given the
identification of the caller and the product being advertised."70
Consumer.Net contends that Zelma made a specific request to be
placed on a do-not-call list of all entities affiliated with AT&T
(a company-wide do-not-call list) prior to receiving a telephone
solicitation on October 29, 1997, from Universal Card Services
Corporation (UCS), an AT&T affiliate.71 Consumer.Net contends
that AT&T failed to coordinate Zelma's AT&T company-wide do-not-
call request among affiliated entities, in violation of section
64.1200(e)(2)(v) of the Commission's rules, and failed to honor
Zelma's do-not-call request for "10 years from the time the
request is made," in violation of section 64.1200(e)(2)(vi) of
the Commission's rules.72
29 To support its claim, Consumer.Net provides an unsworn
statement from Zelma stating that, prior to June 1997, he
requested by mail and phone to be placed on an AT&T company-wide
do-not-call list.73 Consumer.Net also relies on a letter from
AT&T to Zelma dated August 11, 1997, stating that Zelma would be
placed on AT&T's do-not-call list.74 Consumer.Net contends that
the text and letterhead of this letter indicate that Zelma
requested placement "on a[n] AT&T list, not a specific company
[list] within AT&T."75 In response, AT&T states that Zelma never
requested placement on an AT&T company-wide do-not-call list.76
AT&T also states that Zelma did not request placement on UCS's
do-not-call list until September 7, 1997, which makes UCS's
solicitation "only" seven weeks later lawful.77 AT&T further
states that the "use of the AT&T name by an AT&T business entity
does not automatically lead a consumer to reasonably expect that
a do-not-call request would apply to all affiliated entities."78
30 Zelma's statement that he requested placement on an
AT&T company-wide do-not-call list, in conjunction with the
August 11, 1997 letter from AT&T to Zelma, persuades us that
Zelma requested placement on AT&T's company-wide do-not-call list
prior to August 11, 1997. In this situation, unlike the
situation involving Zelma's February 24, 1998 telephone call,79
Zelma's unsworn statement is corroborated by wholly independent
and probative evidence: AT&T's own August 11, 1997 letter to
Zelma.80
31 The August 11, 1997 letter provides corroboration in
several ways. First of all, the letter bears generic AT&T
letterhead. Moreover, nowhere in the text of the letter does
AT&T refer to a specific AT&T entity. In fact, the text of the
letter refers generically to "AT&T Products and Services," not
specifically to any particular AT&T product or service.
Furthermore, this letter states that "[r]ecently you contacted
AT&T and indicated that you do not wish to be contacted regarding
any marketing communications. . . . We are taking the necessary
steps to remove your account information from our future
communications."81 We find that this letter both supports a
conclusion that Zelma requested to be placed on all AT&T
corporate do-not-call lists and that a reasonable consumer would
understand that AT&T had done so.
32 Indeed, in contrast to these global, generic
characteristics of the August 11, 1997 letter from AT&T to Zelma,
evidence on the record indicates that AT&T does use entity-
specific letterhead (e.g., AT&T long distance services, AT&T
international consumer long distance) to respond to entity-
specific do-not-call requests.82 For example, in response to an
inquiry, Zelma received a letter specifically from AT&T
International Consumer Long Distance. This letter contains
letterhead specifically referencing "AT&T International Consumer
Long Distance" and mentions the specific service within the
letter.83
33 The foregoing evidence satisfies Consumer.Net's burden
of proving that Zelma requested to be placed on an AT&T company-
wide do-not-call list prior to August 11, 1997. Therefore, we
find that the October 29, 1997 telephone solicitation by UCS
violated Zelma's request. We thus find that AT&T failed: (1) to
apply Zelma's do-not-call request to affiliated entities, in
violation of section 64.1200(e)(2)(v) of the Commission's rules;
(2) to properly record Zelma's request, in violation of section
64.1200(e)(2)(iii) of the Commission's rules; and (3) to honor
Zelma's request for 10 years from the time the request was made,
in violation of section 64.1200(e)(2)(vi).
E.Consumer.Net Has Met Its Burden of Proving that AT&T Violated
the Commission's Rules by Initiating a Telephone
Solicitation to Michele Zelma on February 24, 1998.
34 Consumer.Net also argues that AT&T (via its affiliate,
UCS) initiated a telephone solicitation on February 24, 1998, in
violation of Mr. Zelma's prior do-not-call request.84 In
response, AT&T contends that the telephone solicitation did not
violate Mr. Zelma's do-not-call request because the solicitation
was specifically directed to Michele Zelma (not Richard Zelma).85
35 Because we find that the Commission's rules require do-
not-call lists to be maintained on a telephone number basis
(rather than requiring requests from every individual at a
particular residence), we conclude that AT&T's February 24, 1998
telephone solicitation violated the Commission's rules and
orders. Both section 227 and the Commission's rules mandate
certain obligations to protect the rights of residential
telephone subscribers. Specifically, section 64.1200(e)(2)(iii)
of the Commission's rules requires telemarketers to "place the
subscriber's name and telephone number on the do-not-call list at
the time the request is made."86 Additionally, in the TCPA
Memorandum Opinion and Order, the Commission recognized that some
consumers wishing to be placed on a do-not-call list will not
want to provide telemarketers with their name. The Commission
emphasized that such consumers must still be placed on the do-
not-call list based on their telephone number and explained that
"interpreting the rule more narrowly would defeat the objective
of protecting consumer privacy."87 For the same reason, we find
that when a telemarketer receives a request that a particular
telephone number be placed on its do-not-call list, our rules
require the telemarketer to comply with that request by placing
the "subscriber's name and telephone number on the do-not-call
list." The placement of the number on the do-not-call list may
not be circumscribed by the telemarketer's claim that it was
trying to reach someone else at that same number.
36 AT&T acknowledges that some of its do-not-call
lists¾such as those for long distance services¾are maintained by
number (and name if given), because AT&T markets those services
to households, not individuals. In contrast, AT&T states that
the do-not-call list for AT&T's affiliate UCS is maintained by
name and number, because AT&T markets this particular service to
individuals, not households.88 AT&T argues that such a
distinction is consistent with our rules.89 We disagree. There
is nothing in either section 227 of the Act or the Commission's
rules that varies a telemarketer's do-not-call list obligations
depending upon the service being marketed. Both section 227 of
the Act and the Commission's rules grant rights to consumers that
only can be effectuated if a single request from someone in a
particular household suffices to stop future calls to the same
number. Indeed, the distinction proffered by AT&T potentially
would eviscerate the policy goals of the statute in protecting
telephone subscribers from unwanted telemarketing calls by
creating a virtually irrefutable defense that the telemarketer
was trying to reach "someone else" at that number.
37 We add that our interpretation of section
64.1200(e)(2)(iii) is consistent with our holding above that a
do-not-call request applies to a particular telephone number, not
all numbers associated with that person's name, absent a specific
request to the contrary.90 In contrast, we find AT&T's position
in this instance to be inconsistent with its position on certain
other counts in this complaint. On certain counts in this
complaint, such as Consumer.Net's allegations that AT&T failed to
honor Biggerstaff's do-not-call requests, we found in favor of
AT&T, because Consumer.Net had not demonstrated that the
telephone numbers to which AT&T made the allegedly violative
telephone solicitations had been requested to be placed on a
particular AT&T do-not-call list. We reached this conclusion, in
part, even though it was conceded that multiple telephone lines
belonged to the same subscriber, because we found that¾absent a
specific request to the contrary¾a do-not-call request applies to
a particular telephone number. Our conclusion in this
instance¾that a do-not-call request applies by number¾is based
upon the same premise, and consistent with our overall policy
goals of the statute and the rules, to protect individuals from
unwanted telephone solicitations.
38 AT&T admits that it placed Mr. Zelma's telephone number
on the UCS do-not-call list on September 7, 1997, and we have
found that Mr. Zelma requested to be placed on all AT&T do-not-
call lists prior to August 11, 1997.91 Accordingly, we find that
AT&T violated section 64.1200(e)(2)(vi) by placing a telephone
solicitation to Michele Zelma on February 24, 1998.
F. Miscellaneous Claims
39 In its complaint, Consumer.Net also appears to allege
that AT&T (1) initiated telephone solicitations to Smith in
violation of his do-not-call request; (2) failed to provide a
copy of AT&T's do-not-call policy to Smith; and (3) improperly
trained its telemarketers.92 Consumer.Net has not provided any
factual information, either in the complaint itself or anywhere
else in the record, to support any of these claims. Therefore,
even though we liberally construe pro se pleadings, we cannot
construe Consumer.Net's pleadings to have met the burden of proof
applicable to the foregoing claims.93 Accordingly, we hereby
deny all of these claims.
IV. REQUESTS FOR RELIEF
40 Consumer.Net requests that the Commission assess
forfeitures against AT&T for violation of the Commission's rules
and orders, issue a cease and desist order to prevent AT&T from
conducting further telephone solicitations in the United States,
and order AT&T to pay damages in the amount of $1,500 per
violation.94 For the following reasons, we deny all of
Consumer.Net's requests for relief.
41 Sections 206-208 of the Act establish private remedies
for parties aggrieved by carriers, while section 503(b) of the
Act gives the Commission the discretion to assess forfeitures
payable to the United States.95 Accordingly, a formal complaint
proceeding under sections 206-208 of the Act is not an
appropriate venue for the Commission's imposition of a
forfeiture. If the Commission determines that AT&T's telephone
solicitation practices warrant the issuance of a Notice of
Apparent Liability for Forfeiture under section 503 of the Act,
the Commission will do so in a separate proceeding.96
Consumer.Net's request that we prohibit AT&T from telephone
solicitations is denied, because Consumer.Net has not shown
widespread violations or the potential for future misconduct or
harm necessary to warrant such relief.
42 We also deny Complainant's claim for damages. As
explained above, although Consumer.Net has shown that AT&T
violated the Commission's rules in relation to Biggerstaff and
Zelma, Consumer.Net has not shown that AT&T violated the
Commission's rules in its dealings with Consumer.Net itself.
Consumer.Net has standing to recover damages only for harm to
itself, not for harm suffered by others.97 This conclusion is
premised on a determination that Biggerstaff and Zelma are not
parties to this proceeding. It follows from such a conclusion,
of course, that nothing in this order affects their rights to
seek damages directly either by filing a complaint with the
Commission or with a court of proper jurisdiction.98
V. CONCLUSION
43 For the reasons discussed above, we conclude that (1)
AT&T violated section 64.1200(e)(2)(i) by failing to make its do-
not-call policy available to Biggerstaff upon his May 8, 1997
demand; (2) AT&T violated section 64.1200(e)(2)(iii) by failing
to properly record Zelma's do-not-call request on or about
February 24, 1998; (3) AT&T violated section 64.1200(e)(2)(v) by
failing to apply Zelma's AT&T company-wide do-not-call request to
affiliated entities; (4) AT&T violated section 64.1200(e)(2)(vi)
by failing to honor Zelma's do-not-call request for a period of
10 years from the time the request was made; and (5) Consumer.Net
has failed to show by a preponderance of the evidence that AT&T
violated the Act or the Commission's rules or orders in any other
respects.
VI. ORDERING CLAUSES
44 Accordingly, IT IS ORDERED, pursuant to sections 4(i),
4(j), 208, and 227 of the Communications Act of 1934, as amended,
47 U.S.C. §§ 154(i), 154(j), 208, and 227 that the complaint
filed by Consumer.Net IS GRANTED IN PART to the extent described
herein and otherwise DENIED and DISMISSED WITH PREJUDICE, and
this proceeding is TERMINATED.
45 IT IS FURTHER ORDERED, pursuant to sections 4(i), 4(j),
and 208 of the Communications Act of 1934, as amended, 47 U.S.C.
§§ 154(i), 154(j), and 208, that AT&T's Motion to Dismiss filed
on July 13, 1998 IS DENIED.
46 IT IS FURTHER ORDERED, pursuant to sections 4(i), 4(j),
and 208 of the Communications Act of 1934, as amended, 47 U.S.C.
§§ 154(i), 154(j), and 208, that AT&T's Motion to Strike filed on
July 31, 1998 IS DENIED.
FEDERAL COMMUNICATIONS COMMISSION
Magalie Roman Salas
Secretary
_________________________
1 47 U.S.C. § 227.
2 See Consumer.Net Brief at 14; see also Consumer.Net
Complaint at 5-6 (Complaint).
3 47 U.S.C. § 227. An "unsolicited advertisement" is
defined as "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." 47 U.S.C. § 227(a)(4). The TCPA also
restricts the use of automatic telephone dialing systems,
prerecorded voice messages, and telephone facsimile machines for
telemarketing purposes. See id. Those restrictions are not at
issue in this proceeding.
4 47 U.S.C. § 227(c)(1).
5 See H.R. Rep. No. 102-317, 102nd Cong. at 12 (1991)
(stating that the "bill makes several findings regarding modern
telemarketing technology and practices; intrusions upon
individual privacy rights and public safety concerns; and the
need for a federal solution that both protects the privacy rights
of individual residential telephone subscribers and permits
legitimate telemarketing practices) (emphasis added). See also
TCPA Report and Order, 7 FCC Rcd at 8752. A "telephone
solicitation" is defined as:
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, . . . [not including] a call
or message (A) to any person with that person's prior
express invitation or permission, (B) to any person
with whom the caller has an established business
relationship, or (C) by a tax exempt nonprofit
organization.
47 U.S.C. § 227(a)(3). The Commission also adopted rules and
procedures, inter alia, governing solicitations by facsimile
machines and by autodialers. Those rules are not at issue in
this proceeding.
6 See id. at 8765, para. 23.
7 47 C.F.R. § 64.1200(e)(2) (stating that "no person or
entity shall initiate any telephone solicitation to a residential
telephone subscriber . . . unless such person or entity has
instituted procedures for maintaining a list of persons who do
not wish to receive telephone solicitations . . . .").
8 See TCPA Report and Order, 7 FCC Rcd at 8766, para. 24;
see also 47 C.F.R. §§ 64.1200(e)(2)(i)-(vi).
9 See 47 C.F.R. § 64.1200(e)(2)(iv); see also TCPA Report
and Order, 7 FCC Rcd at 8767, para. 24.
10 See TCPA Report and Order, 7 FCC Rcd at 8766, para. 24.
11 Complaint at 1. Consumer.Net appears to be an
organization primarily devoted to curbing unwanted telephone
solicitations. Consumer.Net did not describe its functions or
purposes in either its complaint or in subsequent pleadings.
Based on information gleaned from Consumer.Net's webpage,
Consumer.Net purports to inform consumers about their rights
regarding the receipt of unwanted telephone solicitations. See
Consumer.Net's web page (visited March 3, 1999)
. Russell Smith is the director of
Consumer.Net. See Consumer.Net Complaint at 6.
12 Consumer.Net attached to its complaint supporting
factual statements from Biggerstaff and Zelma, who are not
parties to the complaint. Consumer.Net does not allege that it
was harmed by the allegedly unlawful conduct. See 47 U.S.C. §
208 (stating that "[n]o complaint shall at any time be dismissed
because of the absence of direct damage to the complainant.").
13 See Consumer.Net Brief at 2, 4, 6.
14 See id. at 4, 8-10.
15 See id. at 11-12.
16 See id. at 5.
17 See 47 U.S.C. § 208; see also Directel, Inc. v.
American Telephone and Telegraph Company, Memorandum Opinion and
Order, 11 FCC Rcd 7554, 7560-61, paras. 14-15 (1996); Amendment
of Rules Governing Procedures to be Followed when Formal
Complaints are Filed Against Common Carriers, Report and Order,
12 FCC Rcd 22,497 (1997); Amendment of Rules Concerning
Procedures to be Followed when Formal Complaints are Filed
Against Common Carriers, Report and Order, 8 FCC Rcd 2614 (1993);
Connecticut Office of Consumer Counsel v. AT&T Communications,
Memorandum Opinion and Order, 4 FCC Rcd 8130 (1989), aff'd sub
nom. Connecticut Office of Consumer Counsel v. FCC, 915 F.2d 75
(2d Cir. 1990), cert. denied, 499 U.S. 920 (1991). See generally
47 C.F.R. §§ 1.720-1.735.
18 See, e.g., Sea Island Broadcasting Corp. of S.C. v.
FCC, 627 F.2d 240, 243 (D.C. Cir. 1980); see also Implementation
of the Non-Accounting Safeguards of Sections 271 and 272 of the
Communications Act of 1934, as Amended, First Report and Order
and Further Notice of Proposed Rulemaking, 11 FCC Rcd 21,905,
22,068, para. 337 (1996); Bender v. Clark, 744 F.2d 1424 (10th
Cir. 1984) (stating that "the traditional standard required in a
civil or administrative proceeding is proof by a preponderance of
the evidence.").
19 See 47 C.F.R. § 1.720(b).
20 See 47 C.F.R. § 1.720(c).
21 See, e.g., Letter to Parties from Jennifer Myers, Staff
Attorney, Enforcement Division, Common Carrier Bureau, FCC
(August 12, 1998) (summarizing the August 12, 1998 status
conference and stating that the "parties must state [in their
briefs] the factual information upon which they rely and cite to
documents demonstrating that factual information").
22 See id. AT&T filed a motion to strike several of
Consumer.Net's pleadings, including, Complainant's Opposition to
AT&T's Opposition to Consumer.Net's Request for Admissions and
Complainant's Opposition to AT&T's Opposition to Consumer.Net's
Request for Deposition, stating that the pleadings were
prohibited under the formal complaint rules. The Division denied
Consumer.Net's discovery requests during the status conference.
See Status Conference Transcript at 13-16. Accordingly, AT&T's
motion to strike is denied as moot. AT&T filed a motion to
dismiss the complaint. Because we are here addressing the issues
raised in the pleadings, AT&T's motion to dismiss is dismissed as
moot.
23 47 C.F.R. § 64.1200(e)(2)(i).
24 See Consumer.Net Brief at 3-4, 6.
25 See AT&T Brief at 9-12.
26 See Consumer.Net Brief at 4.
27 See id. The parties may have made minor errors as to
both the date of Zelma's request for the do-not-call policy and
the date of AT&T's response. Although Consumer.Net asserts that
Zelma made the request on July 9, 1997, AT&T's answers to
interrogatories, on which Consumer.Net relies, indicate that
Zelma requested a copy of AT&T's do-not-call policy from AT&T on
July 7, 1997, not July 9, 1997. See AT&T Corp. Responses to
Complainant's First Set of Interrogatories at 6. Moreover,
although Consumer.Net asserts that AT&T responded on August 9,
1997, it appears that AT&T sent a copy of its do-not-call policy
to Zelma on August 11, 1997. See August 11, 1997 AT&T Letter.
These discrepancies do not affect our decision. In this order,
we assume that the correct dates are July 7, 1997, and August 11,
1997.
28 See Arkow v. Bank of America, N.T.S.A., Municipal Court
of the Newhall Judicial District, For the County of Los Angeles,
State of California, Small Claims Division, Case No. S/C 95S00592
(Consumer.Net Brief at Exh. 15).
29 47 C.F.R. § 64.1200(e)(2)(i).
30 See Consumer.Net Brief at 4.
31 See July 14, 1997 AT&T Letter.
32 See AT&T Corp. Responses to Complainant's First Set of
Interrogatories at 9; AT&T Brief at 10; Consumer.Net Brief at 4.
33 See August 11, 1997 AT&T Letter.
34 As stated above, whether a person or entity makes its
do-not-call policy "available upon demand" within the meaning of
section 64.1200(e)(2)(i) of our rules depends upon the facts and
circumstances of each particular case. Thus, our finding in this
case does not mean that we always would find a response time of
seven days to be reasonable, or that we always would find a
response time of greater than twelve days to be unreasonable.
35 See Consumer.Net Brief at 4, 6.
36 See AT&T Brief at 10-11.
37 See Consumer.Net Brief at 6; but see AT&T Brief at 10-
11 (stating that its call records do not indicate that
Biggerstaff requested a copy of AT&T's do-not-call policy).
38 See Biggerstaff Aff. (Sept. 17, 1998) (attaching the
cassette tape to the affidavit and explaining what is recorded on
the tape) (hereinafter we refer to the tape as the "Biggerstaff
Tape").
39 Nor does AT&T allege that the taped conversations
should not be considered by the Commission for any legal or
policy reasons.
40 See AT&T Brief at 11.
41 Biggerstaff Tape.
42 See Consumer.Net Brief at 4.
43 See AT&T Brief at 10-11.
44 Zelma Statement (Consumer.Net Brief at Exh. 12); see
also Consumer.Net Brief at 4 (stating that Zelma "requested the
AT&T do-not-call policy after the February 24, 1998 telephone
solicitation made by AT&T but did not receive one and had to call
back on March 20, 1998."). It is unclear from Zelma's statement
when Zelma initially contacted AT&T to request its do-not-call
policy. Consumer.Net does not state whether Zelma received a do-
not-call policy subsequent to his March 20, 1998 call to AT&T.
AT&T states that its contemporaneous call records are unavailable
for Zelma's alleged call to AT&T on or about February 24, 1998;
therefore, AT&T does not have a record of whether Zelma requested
a copy of AT&T's do-not-call policy. See AT&T Brief at 10. We
find AT&T's less-than-complete recordkeeping troubling and urge
carriers to fulfill their responsibilities to maintain such
records. In its answers to interrogatories, however, AT&T states
that Zelma contacted AT&T's Chairman's Executive Response Center
on February 24, 1998, and that as a result of that telephone
call, AT&T placed Ms. Michele Zelma on the Universal Card
Services (UCS) do-not-call list. See AT&T's Answers to
Interrogatories at 9. It is unclear whether the contemporaneous
call records referred to in AT&T's brief are the same as the
records for the Chairman's Executive Response Center.
45 See supra paras. 9-11.
46 See Consumer.Net Brief at 4, 6 (referring to July 14,
1997 AT&T Letter and August 11, 1997 AT&T Letter). The substance
of each letter is identical. July 14, 1997 AT&T Letter; August
11, 1997 AT&T Letter.
47 Consumer.Net Brief at 6.
48 See July 14, 1997 AT&T Letter; August 11, 1997 AT&T
Letter.
49 It appears that Consumer.Net also argues that AT&T's
failure to make its do-not-call policy available on AT&T's
webpage violates section 64.1200(e)(i) of the Commission's rules.
See Consumer.Net Brief at 4. We disagree. Nothing in the
Commission's rules requires carriers to make available their do-
not-call policies on the internet.
50 47 C.F.R. § 64.1200(e)(2)(iii) (stating in pertinent
part, "the person or entity must record the [do-not-call] request
and place the subscriber's name and telephone number on the do-
not-call list . . . .").
51 See 47 C.F.R. § 64.1200(e)(2)(vi).
52 47 C.F.R. § 64.1200(e)(2)(v) ("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 the call is
made), and will not apply to affiliated entities unless the
consumer reasonably would expect them to be included given the
identification of the caller and the product being advertised.").
53 See Consumer.Net Brief at 10-14.
54 See AT&T Corp. Responses to Complainant's First Set of
Interrogatories at 5. See also Biggerstaff Aff. at paras. 7-8
(Aug. 31, 1998).
55 See AT&T Brief at note 35; Biggerstaff Tape.
Biggerstaff has several different telephone numbers. For
privacy, only part of the telephone number will be used in this
order.
56 See Consumer.Net Brief at 9; see also Consumer.Net
Brief at Exh. 25 (Biggerstaff Aff. at para. 4 (June 18, 1998))
(Biggerstaff Aff. (June 18, 1998)).
57 See AT&T Brief at 9.
58 Biggerstaff Aff. at para. 3 (June 18, 1998).
Consumer.Net also relies on this affidavit to substantiate its
claim that the other telephone solicitations violated
Biggerstaff's prior do-not-call requests. The same deficiencies
of the statement regarding the pre-1996 telephone solicitations
with respect to the May 8, 1997 telephone solicitation are
present for all subsequent calls.
59 See Biggerstaff Aff. at para. 3 (Sept. 17, 1998)
(Consumer.Net Brief at Exh. 28) (stating that Mr. Biggerstaff
maintains several different telephone numbers).
60 See id. (stating "Prior to November 4, 1996, I received
multiple telephone solicitations at my home by or on behalf of
AT&T that I did not keep a record of. In each and every one of
these calls, numbering approximately five, . . . I requested the
caller to not call me again.").
61 See Consumer.Net Brief at 9.
62 See AT&T Brief at 17.
63 See Biggerstaff Aff. at para. 4 (June 18, 1998).
64 See AT&T Corp. Response to Commission Request for
Information at 2-3.
65 See 47 C.F.R. § 64.1200(e)(2)(iii).
66 See supra para. 14.
67 Consumer.Net Brief at 9. Consumer.Net does not mention
the June 4, 1998 telephone solicitation in its complaint or in
its brief. Biggerstaff, in his affidavit, however, states that
he received a June 4, 1998 telephone solicitation in violation of
his do-not-call request. Because Consumer.Net is pro se, we
liberally construe its complaint to encompass the June 4, 1998
telephone solicitation referenced in Biggerstaff's affidavit.
68 Biggerstaff Tape.
69 Consumer.Net also argues that AT&T initiated telephone
solicitations on July 3, July 28, and July 30, each in violation
of Biggerstaff's do-not-call request. Each separate call is a
separate cause of action. These calls occurred after
Consumer.Net filed its formal complaint, and therefore are not
properly before us. Consumer.Net cannot raise new claims after
the formal complaint has been filed. See GE Capital
Communications Services v. AT&T, Memorandum Opinion and Order, 13
FCC Rcd 13,138, 13,149, para. 24 (1998) (declining to resolve
issues raised for the first time in the complainant's brief).
70 47 C.F.R. § 64.1200(e)(2)(v).
71 See Consumer.Net Brief at 10.
72 See id.
73 See Statement of Richard M. Zelma (June 17, 1998)
(Consumer.Net Brief at Exh. 12).
74 See Letter to Richard Zelma from Mary Beth Kessler,
Manager, AT&T Customer Relations Center (Aug. 11, 1997)
(Consumer.Net Brief at Exh. 20) (This August 11, 1997 letter is
not the same as the letter referred to earlier as the August 11,
1997 Letter).
75 Consumer.Net Brief at 11.
76 AT&T Brief at 13.
77 Id. at 13-14.
78 AT&T Reply Brief at 8-9.
79 See supra para. 16 (discussing why Zelma's unsworn
statement is insufficient to demonstrate that Zelma requested a
copy of AT&T's do-not-call policy).
80 See Letter to Richard Zelma from Mary Beth Kessler,
Manager, AT&T Customer Relations Center (Aug. 11, 1997)
(Consumer.Net Brief at Exh. 20).
81 See id. (emphasis added).
82 See, e.g., Letter to Richard Zelma from Joan
Lichtenstein, Manager, Alternate Channels, International Consumer
Long Distance, AT&T (Dec. 3, 1996) (Consumer.Net Brief at Exh.
30).
83 Id.
84 See Consumer.Net Brief at 14.
85 See AT&T Brief at 14 n.33.
86 47 C.F.R. § 64.1200(e)(2)(iii) (emphasis added).
Section 64.1200(e)(2)(iii) states in pertinent part,
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 at the time the request is made.
Id.
87 TCPA Memorandum Opinion and Order, 10 FCC Rcd at
12,395, para. 9. The Commission declined to modify the
requirement that solicitors record both a name and number. The
Commission stated, however, that "[t]elemarketers will not be in
violation of the rule so long as they request the called party's
name. Indeed, we expect telemarketers to respect the privacy of
those who specifically refuse to give a name by simply making a
notation to that effect." Id.
88 See AT&T Brief at 4 n.8 (discussing UCS's do-not-call
list procedures).
89 See id.
90 See supra para. 19.
91 See AT&T Brief at 13.
92 See Consumer.Net Complaint at 6; Status Conference
Transcript at 26-27.
93 See Status Conference Transcript at 8-11. In its
brief, Consumer.Net appears to challenge the sufficiency of the
information in various AT&T, APAC TeleServices, Inc., and
Citibank do-not-call policies that Smith received.
See Consumer.Net Brief at 5-7. Consumer.Net also appears to
raise issues concerning the practices of the telemarketers AT&T
used to telemarket AT&T's products and services. Consumer.Net
also appears to argue that AT&T's procedures for maintaining a
physical do-not-call list do not comply with our rules. See id.
at 12-13. These claims were raised only in Consumer.Net's brief,
and not in its complaint. Therefore, these claims are not
properly before us, and we need not address them. See 47 C.F.R.
§ 1.721(a); see also GE Capital Communications Services v. AT&T,
13 FCC Rcd at 13,149, para. 24 (declining to resolve issues
raised for the first time in the complainant's brief).
94 See Consumer.Net Brief at 14.
95 47 U.S.C. §§ 208, 503(b); 47 C.F.R. § 1.80(e).
96 See Halprin v. MCI Telecommunications Corp., Memorandum
Opinion and Order, 13 FCC Rcd 22,568, 22,581, at para. 29 (1998).
While the violations at issue here standing alone do not fall
within the one-year statute of limitations period established in
section 503(b)(6)(B) of the Act, 47 U.S.C. § 503(b)(6)(B), the
Commission is concerned with AT&T's failure to comply fully with
the TCPA and the Commission's parallel regulations, and will
bring appropriate enforcement action if such violations recur.
97 See, e.g., 47 U.S.C. § 206 (providing that, if a common
carrier violates the Act, "such common carrier shall be liable to
the person or persons injured thereby for the full amount of
damages sustained") (emphasis added). See also Halprin v. MCI
Telecommunications Corp., 13 FCC Rcd at 22,581, para. 29 (holding
that class action lawsuits are neither contemplated by, nor
consistent with, the private remedies created under sections 206
through 209 of the Act). Nonetheless, it is appropriate for the
Commission to resolve the legal and factual issues presented by
Consumer.Net's complaint, in light of the statutory mandate that
such complaint not be dismissed solely for lack of direct injury.
See 47 U.S.C. § 208.
98 Pursuant to section 227(c)(5) a person who has received
telephone solicitations in violation of the Commission's rules
and the Act may "if otherwise permitted by the laws or rules of
court of a State bring in an appropriate court of that State" an
action to enjoin such violation and/or an action to recover
actual monetary loss or $500 per violation. Id. Section 227
further provides that the court may increase the amount to not
more than $1,500 per violation if the court finds that "the
defendant wilfully or knowingly violated the regulations
prescribed under this subsection." 47 U.S.C. § 227(c)(5)(C).
Section 227 does not provide a similar monetary recovery for
those complaints brought before the Commission; complainants,
however, may file a section 208 formal complaint for the recovery
of actual damages. See 47 U.S.C. §§ 206-208. During a status
conference, Commission staff informed Consumer.Net that
Biggerstaff and Zelma could file a formal complaint on their own
behalf or seek to be joined as parties to the Consumer.Net
complaint if they wished to recover actual damages.