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Notice

Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991

Document Details

Information about this document as published in the Federal Register.

Published Document

This document has been published in the Federal Register. Use the PDF linked in the document sidebar for the official electronic format.

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AGENCY:

Federal Communications Commission.

ACTION:

Notice; comments requested.

SUMMARY:

In this document, the Commission seeks comment on a petition for declaratory ruling filed by the Fax Ban Coalition (the “Coalition”) concerning the scope of the Commission's jurisdiction over interstate communications under the Telephone Consumer Protection Act of 1991 (“TCPA”). In particular, the Coalition asks the Commission to: Affirm that, under its general grant of exclusive authority to regulate interstate communications, the Commission has exclusive authority to regulate interstate commercial fax messages; and find that section 17538.43 of the California Business and Professions Code, and all other State laws that purport to regulate interstate facsimile transmissions, are preempted by the federal TCPA, 47 U.S.C. 227.

DATES:

Comments are due on or before January 13, 2006, and reply comments are due on or before February 2, 2006.

ADDRESSES:

You may submit comments, identified by [docket number and/or Start Printed Page 74015rulemaking number], by any of the following methods:

  • Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
  • Federal Communications Commission's Web site: http://www.fcc.gov/​cgb/​ecfs/​. Follow the instructions for submitting comments.
  • Mail: Parties who choose to file by paper should also submit their comment on diskette. These diskettes 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, DC 20554. Such a submission should be on a 3.5 inch diskette formatted in an IBM compatible formatted using Word 97 or compatible software. The diskette should be accompanied by a cover letter and should be submitted in “read only” mode. The diskette 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 diskette. The label should also include the following phrase: “Disk Copy—Not an Original.” Each diskette should contain only one party's pleadings, preferably in a single electronic file. In addition, commenters must send diskette copies to the Commission's contractor at Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554.
  • People with Disabilities: Contact the FCC to request reasonable accommodations (accessible format documents, sign language interpreters, CART, etc.) by e-mail: FCC504@fcc.gov or phone: 202-418-0530 or TTY: 202-418-0432.

For detailed instructions for submitting comments and additional information on the rulemaking process, see the SUPPLEMENTARY INFORMATION section of this document

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FOR FURTHER INFORMATION CONTACT:

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

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SUPPLEMENTARY INFORMATION:

This is a summary of the Commission's document, DA 05-2975, released November 22, 2005. The full text of document DA 05-2975, the Coalition's submission, 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. Document DA 05-2975, the Coalition's submission, and copies of subsequently filed documents in this matter may also be purchased from the Commission's 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 http://www.bcpiweb.com or call 1-800-378-3160. A copy of the Coalition's submission may also be found by searching ECFS at http://www.fcc.gov/​cgb/​ecfs (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 fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY). Document DA 05-2975 can also be downloaded in Word or Portable Document Format (PDF) at http://www.fcc.gov/​cgb/​policy. On July 3, 2003, the Commission released a Report and Order (2003 TCPA Order) which published in the Federal Register on July 25, 2003 (68 FR 44144) revising its rules under the TCPA. In the 2003 TCPA Order, 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. This petition argues that the Commission should assert its exclusive jurisdiction over interstate communications, rather than deal with preemption petitions on a case-by-case basis. Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. 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 FR 24121 (1998).

  • Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS: http://www.fcc.gov/​cgb/​ecfs/​ or the Federal eRulemaking Portal: http://www.regulations.gov. Filers should follow the instructions provided on the website for submitting comments.
  • For ECFS filers, if multiple docket or rulemaking numbers appear in the caption of this proceeding, filers must transmit one electronic copy of the comments for each docket or rulemaking number referenced in the caption. In completing the transmittal screen, filers 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, filers should send an e-mail to ecfs@fcc.gov, and include the following words in the body of the message, “get form.” A sample form and directions will be sent in response.
  • Paper Filers: 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, filers must submit two additional copies for each additional docket or rulemaking number. Filings can be sent by hand or messenger delivery, 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). 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 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 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 should be addressed to 445 12th Street, SW., Washington, DC 20554.

Synopsis

On November 7, 2005, the Coalition filed with the Commission a joint petition for declaratory ruling. See the Coalition's, Petition for Declaratory Ruling, filed November 7, 2005 (“Petition”). The Coalition characterizes its membership as a diverse group of small and large businesses and other organizations active in a variety of industries. Coalition members include bankers, health care providers, magazine publishers, trade show operators, travel agents, attorneys and insurance agents.

The joint petition raises issues concerning the scope of the Commission's jurisdiction over interstate communications under the Start Printed Page 74016Telephone Consumer Protection Act of 1991 (“TCPA”). Telephone Consumer Protection Act of 1991, Public Law 102-243, 105 Statute 2394 (1991), codified at 47 U.S.C. 227. In particular, the Coalition asks the Commission to: (1) Affirm that, under its general grant of exclusive authority to regulate interstate communications, the Commission has exclusive authority to regulate interstate commercial fax messages; and (2) find that section 17538.43 of the California Business and Professions Code, and all other State laws that purport to regulate interstate facsimile transmissions, are preempted by the federal TCPA, 47 U.S.C. 227. In this document, the Commission seeks comment on the issues raised in the Coalition's joint petition.

The Coalition asserts that States lack jurisdiction to regulate interstate fax communications. According to the Coalition, Congress granted exclusive jurisdiction to the Commission over “all interstate and foreign communication” under the Communications Act of 1934. The Coalition argues that exclusive federal regulation of interstate commercial fax transmissions is consistent with congressional intent, 47 U.S.C. 227(e)(1), and with prior Commission decisions. In addition, the Coalition contends that individual states' attempts to regulate interstate communication have resulted in varying fax regulation that is not only inconsistent with Congressional intent and the optimal goals of the TCPA, but extremely burdensome to the individuals, companies and other organizations that rely heavily on fax technology to conduct business. Accordingly, the Coalition maintains the Commission should preempt all State laws purporting to regulate interstate fax transmissions and assert exclusive jurisdiction over such regulation.

In addition, the Coalition argues that on October 7, 2005, California enacted a law that conflicts with the fax requirements of the TCPA. The Coalition contends that California's new law contains the text of section 227 of the Communications Act, without the Junk Fax Prevention Act of 2005 (“JFPA”) amendments, and applies that language to any person sending faxes into or out of the state. Consequently, the Coalition maintains that the California law effectively eliminates the established business relationship (“EBR”) exception to the prohibition on unsolicited faxes in the JFPA.

The Coalition urges the Commission to declare that the Commission has exclusive jurisdiction to regulate interstate commercial fax messages and all State efforts to do so are preempted.

Start Signature

Federal Communications Commission.

Jay Keithley,

Deputy Bureau Chief, Consumer & Governmental Affairs Bureau.

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[FR Doc. 05-23856 Filed 12-13-05; 8:45 am]

BILLING CODE 6712-01-P