FCC Releases No-Call Proposals

The Federal Communications Commission yesterday released its Notice of Proposed Rulemaking on a national no-call registry and other telemarketing regulations, a document that offers a peek into the issues the agency will face while it re-engineers its telemarketing rules.

Release of the document follows last week's announcement by the FCC that it would consider a major revamp to the way it enforces federal telemarketing rules. In the document, the agency asked whether it should seek to establish a national DNC list and whether such an effort is feasible at this time.

The document noted that, despite being authorized by Congress in the Telephone Consumer Protection Act in 1991 to create a list, the FCC declined in favor of a company-specific no-call policy, and arguments in favor of the present policy remain persuasive.

The FCC will examine the costs related to maintaining a national registry for regulators and for telemarketers, and whether technological advances in computers and databases over the past 10 years have mitigated those costs, the document said.

While the FCC appears to be trying to answer many of the questions faced by the Federal Trade Commission, which began its own effort to create a national do-not-call registry in January, the FCC will confront several unique issues. In particular, the notice asks whether the FCC should apply the national DNC to industries not covered by the FTC, including telephone common carriers, insurance companies and banks.

The FCC also will explore whether its congressional mandate to run a national no-call registry, which according to the TCPA can apply to residential lines only, can apply to wireless phones. The FCC is scheduled to allow consumers to begin transferring their home phone numbers to wireless phones starting in November 2003, a move expected to cause trouble for telemarketers.

According to the document, the FCC will examine in depth how its no-call registry would interact with the FTC's proposed list and how enforcement duties should be split. One potential issue is that while the FTC has said it will consider a fee for consumers registering to the national DNC list, the TCPA prohibits the FCC from charging any fee for registry.

In addition, the document asks how the national lists will interact with existing state DNC lists, which 27 states have approved or enacted, or whether state lists should be pre-empted against the wishes of many state attorneys general. The FCC will consider whether to apply the national DNC list only to states without their own list, or allowing states to opt in to the national list provided they bring their own telemarketing rules into synch with federal regulations.

Other issues the FCC will consider include:

· Whether abandoned calls due to the use of predictive dialers can be reduced, and whether the use of answering machine detection, which has been blamed for dead air consumers encounter when they answer telemarketing calls, can be justified.

· Whether rules against unsolicited commercial prerecorded message calls apply to prerecorded messages that offer no sale but offer free goods, services or information, which the document notes often serve as advertising.

· Whether rules against unsolicited faxes remain effective.

· Whether private individuals suing telemarketers in state court for a company-specific DNC request violation can sue after a single violation, or after more than one violation as now permitted.

A copy of the 45-page notice is available at fcc.gov. The FCC invites comments on its proposed rules, which may be submitted electronically at fcc.gov/e-file/ecfs.html. Comments will be accepted for 45 days after the posting of the notice.

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