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Proposed Rule

Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991

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Information about this document as published in the Federal Register.

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AGENCY:

Federal Communications Commission.

ACTION:

Proposed rule; petition for declaratory ruling, comments requested.

SUMMARY:

In this document, the Commission reopens the public comment period for six declaratory ruling petitions that seek Commission preemption under the Telephone Consumer Protection Act (“TCPA”) of the application of particular state laws to interstate telemarketing calls.

DATES:

Comments are due on or before July 29, 2005, and reply comments are due on or before August 18, 2005.

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ADDRESSES:

Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554. See SUPPLEMENTARY INFORMATION for further filing instructions.

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FOR FURTHER INFORMATION CONTACT:

Kelli Farmer, Consumer Policy Division, Consumer & Governmental Affairs Bureau, (202) 418-2512 (voice), Kelli.Farmer@fcc.gov.

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SUPPLEMENTARY INFORMATION:

This is a summary of the Commission's document, DA 05-1347, released May 13, 2005. On July 3, 2003, the Commission released a Report and Orders revising its rules under the TCPA (2003 TCPA Order), published at 68 FR 44144, July 25, 2003. The Commission determined that it would consider any alleged conflicts between state and Federal requirements and the need for preemption on a case-by-case basis. The Commission instructed any party who believes that a state law is inconsistent with section 227 of the Communications Act or the Commission's rules to seek a declaratory ruling from the Commission. The six Petitions that are the subject of this document sought such a declaratory ruling. In order to assemble a more complete administrative record that encompasses and reflects relevant developments in this area, the Commission invites interested parties to file supplemental comments in the record of the following proceedings: (1) American Teleservices Association Petition for Declaratory Ruling with Respect to Certain Provisions of the New Jersey Consumer Fraud Act and the New Jersey Administrative Code, DA 04-3185, filed Aug. 24, 2004 (citing N.J. Statutes Ann. section 56:8-119, et seq. (West 2003) and N.J. Admin. Code title 13, section 45D (2004)); (2) ccAdvertising (aka FreeEats.com, Inc.) Petition for Expedited Declaratory Ruling, DA 04-3187, filed Sept. 13, 2004 (citing N.D. Cent. Code section 51-28-02); (3) Consumer Bankers Association Petition for Declaratory Ruling with Respect to Certain Provisions of the Indiana Revised Statutes and Indiana Administrative Code, DA 04-3835, filed Nov. 19, 2004 (citing Burns Ind. Code Ann. section 24-4.7-4 (2004) and Ind. Admin. Code section 11 IAC 1-1-4 and section 11 IAC 1-1-3.5 (2004)); (4) Consumer Bankers Association Petition for Expedited Declaratory Ruling with Respect to Certain Provisions of the Wisconsin Statutes and Wisconsin Administrative Code, DA 04-3836, filed Nov. 19, 2004 (citing Wis. Statutes section 100.52 (2003) and Wis. Admin. Code, Agriculture, Trade and Consumer Protection, sections 127.02-127.20 and 127.80-127.84)); (5) National City Mortgage Co. Petition for Expedited Declaratory Ruling with Respect to Certain Provisions of the Florida Statutes, DA 04-3837, filed Nov. 22, 2004 (citing Fla. Statutes section 501.059); and (6) TSA Stores, Inc. (The Sports Authority) Petition for Declaratory Ruling with Respect to Certain Provisions of the Florida Laws and Regulations, DA 05-342, filed Feb. 1, 2005 (citing Fla. Statutes section 501.059)).

When filing comments, please reference CG Docket No. 02-278, DA 05-1347, and the DA number assigned to the petition to which the comments relate, including one or more of the following: DA 04-3185, DA 04-3187, DA 04-3835, DA 04-3836, DA 04-3837, or DA 05-342. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS) or by filing paper copies. See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121, May 1, 1998. Comments filed through the ECFS can be sent as an electronic file via the Internet to http://www.fcc.gov/​e-file/​ecfs.html. Generally, only one copy of an electronic submission must be filed. 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 for e-mail comments, commenters should send e-mail to ecfs@fcc.gov, and should include the following words in the body of the message, “get form <your e-mail address>.” A sample form and directions will be sent in reply.

Parties who choose to file by paper must send an original and four (4) copies of each filing. 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 Service mail (although the Commission continues to experience delays in receiving U.S. Postal Service mail). The Commission's contractor, Natek, Inc., 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, DC 20002. The filing hours at this location are 8 a.m. to 7 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, DC 20554. All filings must be addressed to the Commission's Secretary, Marlene H. Dortch, Office of the Secretary, Federal Communications Commission, 445 12th Street, SW., Room TW-B204, Washington, DC 20554.

This proceeding shall be treated as a “permit but disclose” proceeding in accordance with the Commission's ex parte rules, 47 CFR 1.1200. Persons making oral ex parte presentations are reminded that memoranda summarizing the presentations must contain summaries of the substances 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 is generally required. See 47 CFR 1.1206(b). Other rules pertaining to oral and written ex parte presentations in permit-but-disclosed proceedings are set forth in section 1.1206(b) of the Commission's rules, 47 CFR 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, DC 20554, (202) 418-0270. This document may be purchased from the Commission's duplicating contractor, Best Copy and Printing (BCPI), Inc., Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554. Customers may contact BCPI, Inc. at their Web site: http://www.bcpiweb.com or by calling 1-800-378-3160. 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 & Governmental Affairs Bureau at (202) 418-0530 (voice) or (202) 418-0432 (TTY). This document can also be downloaded in Word or Portable Document Format (PDF) at http://www.fcc.gov/​cgb/​policy.

Synopsis

In late 2004 and early 2005, the Commission received six petitions for declaratory ruling seeking Commission preemption under the TCPA of particular state laws, as applied to interstate telemarketing calls. In response to public notices issued by the Commission's Consumer & Governmental Affairs Bureau, interested parties filed comments with the Commission on issues raised in the six Start Printed Page 37320declaratory ruling petitions. Since the close of the comment cycles relating to these petitions, the Commission's staff has learned of a number of recent developments that, if made a part of the formal record, may help to inform the Commission's consideration of particular issues raised in the petitions. In particular, a recently filed petition for declaratory ruling describes an increasing number of divergent state laws applicable to interstate telemarketing and lists several telemarketing-related bills that have been introduced in state legislatures in recent months that, if enacted, would apply to interstate telemarketing calls. See Alliance Contact Services, et al. Petition for Declaratory Ruling that the FCC has Exclusive Regulatory Jurisdiction Over Interstate Telemarketing, filed April 29, 2005. Similarly, we are aware of recent court proceedings involving adjudications of state enforcement actions in which the proper relationship between state and federal telemarketing laws has been at issue before the court. See, e.g., North Dakota v. FreeEats.com, Inc., Opinion and Order, No. 04-C-1694 (N.D. Dist. Ct. Feb.2, 2005); North Dakota v. FreeEats.com, Inc., Stipulation for Entry of Final Judgment, No. 04-C-1694 (N.D. Dist. Ct. March 9, 2005) (state court holding that interstate political polling calls using prerecorded message violate state's telemarketing law).

Finally, we note that the Consumer & Governmental Affairs Bureau released contemporaneously with this document two additional public notices seeking public comment on two separate petitions for declaratory ruling that raise issues relating to the Commission's jurisdiction and preemption authority under the TCPA. See Consumer & Governmental Affairs Bureau Seeks Comment on Petition for Declaratory Ruling Relating to Commission's Jurisdiction Over Interstate Telemarketing, Public Notice, CG Docket No. 02-278, DA 05-1346 (rel. May 13, 2005) (seeking comment on joint petition filed by 33 organizations engaged in interstate telemarketing activities in which petitioners ask Commission to declare its exclusive regulatory jurisdiction over interstate telemarketing); Consumer & Governmental Affairs Bureau Seeks Comment on Petition for Declaratory Ruling on Preemption of California Telemarketing Rules, Public Notice, CG Docket No. 02-278, DA 05-1348 (rel. May 13, 2005) (seeking comment on petition for declaratory ruling in which petitioner asks Commission not to preempt particular provisions of California's telemarketing laws). In order to assemble a more complete administrative record that encompasses and reflects relevant developments in this area, the Commission reopens the public comment period for the six declaratory ruling petitions referenced above and invites interested parties to file supplemental comments in the record of those proceedings.

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Federal Communications Commission.

Monica Desai,

Acting Chief, Consumer & Governmental Affairs Bureau.

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[FR Doc. 05-12466 Filed 6-28-05; 8:45 am]

BILLING CODE 6712-01-P