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Released: January 8, 2010


Federal Communications Commission

News Media Information 202 / 418-0500

445 12th St., S.W.


Washington, D.C. 20554

TTY: 1-888-835-5322

DA 09-2387

Released: November 9, 2009




CG Docket No. 02-278

Comments Due: November 30, 2009
Reply Comments Due: December 7, 2009

On August 25, 2009, Club Texting, Inc. (Club Texting) filed a petition requesting a declaratory
ruling1 regarding the Commission's rules under the Telephone Consumer Protection Act (TCPA).2
Specifically, Club Texting asks the Commission to clarify that, consistent with the treatment of fax
broadcasters, text broadcasters are not senders of text messages under section 227(b)(1) of the TCPA.3
Notably, Section 64.1200(a)(1)(iii) of the Commission's rules prohibits the initiation of "any telephone
call (other than a call made for emergency purposes or made with the prior express consent of the called
party) using an automatic telephone dialing system or an artificial or prerecorded voice, to any telephone
number assigned to . . . cellular telephone service . . . ."4 The Commission concluded that this prohibition
applies to both voice calls and text calls to wireless numbers, provided the call is made to a telephone
number assigned to such wireless service.5 In addition, section 64.1200(a)(3) of the Commission's rules
prohibits the use of any telephone facsimile machine, computer, or other device to send an unsolicited
advertisement to a telephone facsimile machine.6 The rules further provide that a facsimile broadcaster
will be liable for violations of the rules if it demonstrates a high degree of involvement in, or actual notice

1 See Petition for Declaratory Ruling, filed by Club Texting, Inc., August 25, 2009 (Petition).
2 Telephone Consumer Protection Act of 1991, Pub. L. No. 102-243, 105 Stat. 2394 (1991), codified at 47 U.S.C.
227. The TCPA amended Title II of the Communications Act of 1934, 47 U.S.C. 201 et seq.
3 Petition at 1. Section 227(b)(1) of the TCPA is incorporated in the Commission's rules at 47 C.F.R.
4 47 C.F.R. 64.1200(a)(1)(iii).
5 See Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Report and Order, 18
FCC Rcd 14014, 14115, para. 165 (2003).
6 47 C.F.R. 64.1200(a)(3). 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, in writing or otherwise." 47 C.F.R. 64.1200(f)(13).

of, the unlawful activity and fails to take steps to prevent such facsimile transmissions.7 Section
64.1200(f)(6) states that a facsimile broadcaster is a person or entity that transmits messages to telephone
facsimile machines on behalf of another person or entity for a fee.8
Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47 C.F.R. 1.415, 1.419,
interested parties may file comments on Club Texting's petition on or before

November 30, 2009

reply comments may be filed on or before

December 7, 2009

. When filing comments, please reference

CG Docket No. 02-278.

Comments may be filed using: (1) the Commission's Electronic Comment Filing
System (ECFS), (2) the Federal Government's eRulemaking Portal, or (3) by filing paper copies. See
Electronic Filing of Documents in Rulemaking Proceedings, 63 Fed. Reg. 24,121 (1998). Comments
filed through the ECFS can be sent as an electronic file via the Internet by accessing the ECFS: or the Federal Rulemaking Portal: Filers
should follow the instructions provided on the website for submitting comments. If multiple docket or
rulemaking numbers appear in the caption of this proceeding, commenters must transmit one electronic
copy of the comment to each docket or rulemaking number referenced in the caption. In completing the
transmittal screen, commenters should include their full name, U.S. Postal Service mailing address, and
the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet
e-mail. To get filing instructions, commenters should send an e-mail to, and should include
the following words in the body of the message, "get form." A sample form and directions will be sent in
Parties who choose to file by paper must file an original and four copies of each filing. If more
than one docket or rulemaking number appears in the caption of this proceeding, commenters must submit
two additional copies for each additional docket or rulemaking number. Filings can be sent by hand or
messenger delivery, by electronic media, by commercial overnight courier, or by first-class or overnight
U.S. Postal Services mail (although we continue to experience delays in receiving U.S. Postal Service
mail). All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal
Communications Commission. The Commission's contractor will receive hand-delivered or messenger-
delivered paper filings or electronic media for the Commission's Secretary at 236 Massachusetts Avenue,
NE, Suite 110, Washington, D.C. 20002. The filing hours at this location are 8:00 a.m. to 7:00 p.m. All
hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of
before entering the building. Commercial and electronic media sent by 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 mail, Express Mail, and Priority Mail should be
addressed to 445 12th Street, SW, Washington, D.C. 20554.
Parties who choose to file by paper should also submit their comments on CD-Rom. The CD-
Rom should be submitted, along with three paper copies, to: Kelli Farmer, Consumer & Governmental
Affairs Bureau, Policy Division, 445 12th Street, SW, Room 5-A866, Washington, D.C. 20554. Such a
submission should be on CD-Rom formatted in an IBM compatible format using Word 2003 or
compatible software. The CD-Rom should be accompanied by a cover letter and should be submitted in
"read only" mode. The CD-Rom should be clearly labeled with the commenter's name, proceeding
(including the lead docket number) in this case,

CG Docket No. 02-278,

type of pleading (comment or
reply comment), date of submission, and the name of the electronic file on the CD-Rom. The label
should also include the following phrase "CD-Rom Copy - Not an Original." Each CD-Rom should

7 47 C.F.R. 64.1200(a)(3)(vii).
8 47 C.F.R. 64.1200(f)(6).

contain only one party's pleadings, preferably in a single electronic file. In addition, commenters must
send CD-Rom copies to the Commission's copy contractor, Portals II, 445 12th Street, SW, Room CY-
B402, Washington, D.C. 20554.
Pursuant to section 1.1206 of the Commission's rules, 47 C.F.R. 1.1206, this proceeding will be
conducted as a permit-but-disclose proceeding in which ex parte communications are subject to
disclosure. Persons making oral ex parte presentations are reminded that memoranda summarizing the
presentations must contain summaries of the substance of the presentations and not merely a listing of the
subjects discussed. More than a one- or two-sentence description of the views and arguments presented
generally is required. See 47 C.F.R. 1.1206(b). Other rules pertaining to oral and written ex parte
presentations in permit-but-disclose proceedings are set forth in section 1.1206(b) of the Commission's
rules, 47 C.F.R. 1.1206(b).
The full text of this document and copies of any subsequently filed documents in this matter will
be available for public inspection and copying during regular business hours at the FCC Reference
Information Center, Portals II, 445 12th Street, SW, Room CY-A257, Washington, D.C. 20554. This
document and copies of subsequently filed documents in this matter may also be purchased from the
Commission's duplicating contractor at Portals II, 445 12th Street, SW, Room CY-B402, Washington, DC
20554. Customers may contact the Commission's contractor at their web site, email at, or by calling 1-800-378-3160. A copy of the Petition for Waiver may also be found by
searching ECFS at (insert

CG Docket No. 02-278

into the proceeding block).
To request materials in accessible formats for people with disabilities (Braille, large print,
electronic files, audio format) send an e-mail to or call the Consumer & Governmental
Affairs Bureau at (202) 418-0530 (voice) or (202) 418-0432 (TTY). This Public Notice can also be
downloaded in Word or Portable Document Format (PDF) at


Karen Johnson, Consumer & Governmental Affairs
Bureau, Federal Communications Commission, 202-418-7706 (voice),


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