Rule2023-00635
Limits on Exempted Calls Under the Telephone Consumer Protection Act of 1991
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
January 20, 2023
Effective
July 20, 2023
Issuing agencies
Federal Communications Commission
Abstract
In this document, the Federal Communications Commission (Commission or FCC) amends its rules to allow callers the option of obtaining either oral or written consent if they wish to make more calls than the numerical limits on exempted artificial or prerecorded voice message calls to residential telephone lines and affirms the numerical limits and opt-out requirements on such calls.
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<title>Federal Register, Volume 88 Issue 13 (Friday, January 20, 2023)</title>
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[Federal Register Volume 88, Number 13 (Friday, January 20, 2023)]
[Rules and Regulations]
[Pages 3668-3677]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-00635]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 64
[CG Docket No. 02-278; FCC 22-100; FR ID 122724 ]
Limits on Exempted Calls Under the Telephone Consumer Protection
Act of 1991
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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[[Page 3669]]
SUMMARY: In this document, the Federal Communications Commission
(Commission or FCC) amends its rules to allow callers the option of
obtaining either oral or written consent if they wish to make more
calls than the numerical limits on exempted artificial or prerecorded
voice message calls to residential telephone lines and affirms the
numerical limits and opt-out requirements on such calls.
DATES: Effective date: July 20, 2023.
FOR FURTHER INFORMATION CONTACT: Richard D. Smith of the Consumer and
Governmental Affairs Bureau at (717) 338-2797 or <a href="/cdn-cgi/l/email-protection#12407b717a7360763c417f7b667a522e73327a6077742f" http: fcc.gov">fcc.gov</a>">Richard.Smith@<a href="http://fcc.gov">fcc.gov</a></a>.
For information regarding the Paperwork Reduction Act (PRA) information
collection requirements contained in the PRA, contact Cathy Williams,
Office of Managing Director, at (202) 418-2918, or
<a href="/cdn-cgi/l/email-protection#f6b597829e8fd8a19f9a9a9f979b85b6ca97d69e849390cb" http: fcc.gov">fcc.gov</a>">Cathy.Williams@<a href="http://fcc.gov">fcc.gov</a></a>.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order
on Reconsideration and Declaratory Ruling (Order on Reconsideration) in
CG Docket No. 02-278; FCC 22-100, adopted on December 22, 2022, and
released on December 27, 2022. The full text of document FCC 22-100 is
available online at ECFS--Filing Details (<a href="http://fcc.gov">fcc.gov</a>) or <a href="https://docs.fcc.gov/public/attachments/FCC-22-100A1.pdf">https://docs.fcc.gov/public/attachments/FCC-22-100A1.pdf</a>. To request this
document in accessible formats for people with disabilities (e.g.,
Braille, large print, electronic files, audio format) or to request
reasonable accommodations (e.g., accessible format documents, sign
language interpreters, CART), send an email to <a href="/cdn-cgi/l/email-protection#52343131676266126e33723a2037346f" http: fcc.gov">fcc.gov</a>">fcc504@<a href="http://fcc.gov">fcc.gov</a></a> or call
the FCC's Consumer and Governmental Affairs Bureau at (202) 418-0530
(voice).
Final Paperwork Reduction Act of 1995 Analysis
The Order on Reconsideration contains non-substantive modifications
to information collection requirements subject to the Paperwork
Reduction Act of 1995 (PRA), Public Law 104-13. On January 4, 2023,
these modifications were submitted to the Office of Management and
Budget (OMB) and approved as non-substantive changes. Because these
changes are non-substantive, there is no new or modified information
collection burden for small business concerns with fewer than 25
employees pursuant to the Small Business Paperwork Relief Act of 2002,
Public Law 107-198.
Congressional Review Act
The Commission sent a copy of document FCC 22-100 to Congress and
the Government Accountability Office pursuant to the Congressional
Review Act, 5 U.S.C. 801(a)(1)(A).
Synopsis
1. On reconsideration of the Telephone Consumer Protection Act
(TCPA) Exemptions Order, CG Docket No. 02-278, Report and Order,
published at 86 FR 11443 (Feb. 25, 2021), we revise the Commission's
rule requiring prior express written consent to make informational
calls over the numerical limits to permit such callers to obtain the
necessary consent either orally or in writing. We decline, however, to
revise any of the numerical limitations on the number of exempt non-
telemarketing calls to residential lines that we established in the
TCPA Exemptions Order. We also conclude that the differing numerical
limitations for different categories of exempt calls to residential
lines are both constitutional and necessary to advance the health and
safety of consumers. We also retain the opt-out requirements for exempt
informational calls. Finally, we decline to revisit the limitations on
package delivery notifications to wireless numbers that have been in
place since 2015 and confirm that the Commission's 2016 declaratory
ruling on calls by utilities to wireless numbers applies equally to
similar calls made to residential lines.
A. Consent Requirements for Exempted Calls to Residential Lines
2. We grant petitioners' request that we clarify that callers may
obtain consent either orally or in writing to exceed the numerical
limits on artificial or prerecorded voice calls to residential
telephone lines made under the exemptions contained in Sec.
64.1200(a)(3)(ii) through (v) of our rules. We agree with the
petitioners and commenters, including both industry and consumer
organizations, that the Commission did not intend to require that such
callers obtain consent only in writing. While the text of the TCPA
Exemptions Order did not specify that consent must be obtained in
writing, we agree with petitioners that the amended rule implementing
the numerical limitations appears to require prior express written
consent to exceed those limitations. As a result, we amend Sec.
64.1200(a)(3) to make clear that consent for informational (i.e., non-
telemarketing) calls to residential telephone numbers can be obtained
orally or in writing, consistent with longstanding Commission rules and
precedent, as discussed below.
3. We agree with petitioners and commenters that there is no reason
for the consent requirements for informational calls to residential
lines differ from the consent requirements for informational calls to
wireless numbers, which allow for either oral or written consent. In
addition, as some commenters note, to extend the written consent
requirement to informational calls that include calls from utilities
and healthcare providers could impair the ability of these callers to
provide important public safety information to consumers, though we
note that to the extent such calls are ``necessary in any situation
affecting the health and safety of consumers,'' they would fall under
the exemption for ``calls made for emergency purposes'' and thus would
not require prior express consent.
4. The Commission's rules prior to adoption of the TCPA Exemptions
Order did not require prior express written consent for artificial or
prerecorded voice message calls made under any of the exemptions for
calls to residential lines. The TCPA Exemptions Order expressed no
intent to amend these rules to require written consent to make
informational artificial or prerecorded voice calls to residential
lines, and it provided no justification for such a requirement. In
fact, the text of the TCPA Exemptions Order refers only to ``prior
express consent'': ``callers can make more than three non-commercial
calls using an artificial or prerecorded voice message within any
consecutive thirty-day period by obtaining the prior express consent
from the called party, including by using an exempted call to obtain
consent.'' The Commission's rules distinguish ``prior express consent''
from ``prior express written consent.'' Only the latter requires
consent to be obtained in writing. To obtain consent by ``using an
exempted call'' strongly suggests that the Commission contemplated that
such callers could obtain consent orally while communicating with the
called party.
5. In addition, the Commission's longstanding precedent has
expressly limited the written consent requirement only to telemarketing
calls. We note, for example, that the Commission did not amend the
definition of ``prior express written consent'' in our rules, which is
limited to ``advertisements or telemarketing messages'' to encompass
exempted informational calls to residential lines. As a result, we
agree with the petitioners and commenters that there is no indication
that the TCPA Exemptions Order intended to change the Commission's
longstanding rules and precedent that apply the written consent
requirement only to telemarketing calls. As noted above, commenters,
including several
[[Page 3670]]
consumer organizations, unanimously support this conclusion, and none
oppose it. We therefore amend Sec. 64.1200(a)(3) of our rules
accordingly to implement this clarification.
6. Effective Date. The effective date of the amended rule contained
herein is six months after publication in the Federal Register. This
timeframe allows the amended rule to take effect on the same date as
the rules that were adopted in the TCPA Exemptions Order. The
Commission published an announcement of the effective date for the
rules adopted in the TCPA Exemptions Order elsewhere in this issue of
the Federal Register. In the TCPA Exemptions Order, the Commission
concluded that a six-month implementation period was warranted to allow
callers an opportunity to take measures to comply with the numerical
limits and opt-opt requirements on artificial or prerecorded voice
calls made to residential lines.
7. Because the amended rule contained herein is interrelated with
the rules from the TCPA Exemptions Order, we are establishing an
effective date of six months after Federal Register publication of this
rule such that all the amended rules can take effect on the same date.
As a result, our Federal Register publication will set the same
effective date for both the rules from the TCPA Exemption Order and for
the amended rule contained herein.
B. Numerical Limits for Exempt Calls to Residential Lines
8. We deny petitioners' request to reconsider the Commission's
numerical limits on exempt informational calls to residential lines. We
note that section 8(a) of the TRACED Act provides that the Commission
``(I) shall ensure that any exemption under subparagraph (B) or (C)
contains requirements with respect to-- . . . (iii) the number of such
calls that a calling party may make to a particular called party.'' In
response to the Commission's request on the matter, commenters
generally opposed any limits on exempt calls, but did not submit any
specific cost or benefit data on potential call limits or numerical
limits that the Commission had imposed in other contexts, and offered
little guidance on appropriate limits for different types of calls to
meet the TRACED Act's requirements.
9. As the TCPA Exemptions Order emphasized, limiting the number of
exempted calls to residential lines will greatly reduce interruptions
from intrusive and unwanted calls and reduce the burden on residential
telephone users to manage such calls. As Congress noted in enacting the
TCPA, artificial and prerecorded voice calls are often a greater
invasion of privacy than live calls because the call recipient cannot
interact with the caller. And more recently, in passing the TRACED Act,
Congress noted that ``[u]nwanted or illegal robocalls threaten . . .
critical communication[s] when frustrated recipients, fearing unwanted
or illegal robocalls, are hesitant to answer their phones.''
10. Further, while the adoption of a numerical limit satisfies the
requirements of the TRACED Act, it also brings the residential
exemptions ``in line with'' exempted calls to wireless numbers, which
contain a numerical limitation on the number of calls that can be made.
We agree with the Joint Consumer Organizations that the adopted limits
on artificial and prerecorded calls to residential lines will have
``particularly profound benefits for consumers.'' As the Joint Consumer
Organizations note, the absence of any limits on prerecorded non-
telemarketing calls to residential lines is a primary source of
consumer frustration that has led to consumers abandoning their
landline telephone service.
11. We continue to believe that--with respect to the exemptions for
non-commercial calls, commercial calls that do not constitute
telemarketing, and calls by tax-exempt nonprofit organizations--
limiting the number of calls that can be made to a particular
residential line to three artificial or prerecorded voice calls within
any consecutive thirty-day period strikes the appropriate balance
between these callers reaching consumers with valuable information and
reducing the number of unexpected and unwanted calls consumers
currently receive and thus restoring trust in the residential landline
network and advancing health and the safety of life, as discussed
further below.
12. We also believe a consistent limit for those three exemptions
is appropriate. We therefore disagree with ACA International et al.
(ACA) that we should impose different numerical limits for each type of
informational call based on the content or purpose of the message.
While petitioners characterize this as a ``one-size fits all''
approach, we find that such a consistent numerical limit for these
three exemptions will benefit both callers and consumers.
13. In addition, contrary to ACA's assertion, there is ample
support in the record for the adopted three-calls-per-thirty-day
numerical limit. As discussed above, numerous consumer organizations
supported this limit, arguing that the three-call-per-thirty-day limit
is reasonable. We agree with the Joint Consumer Organizations who argue
that, in the context of our federal debt collection rules adopted in
2016, ``the Commission engaged in an extensive and thorough analysis of
the appropriate number of unconsented-to calls that should be
permitted,'' and that ``[a]fter a full proceeding in which interested
parties were invited to provide comments and reply comments, the
Commission adopted a limit of three calls per thirty days for these
calls.'' Nothing in the current record disturbs that analysis and thus
gives us cause to change any of the numerical limits. We also note that
the numerical limit for Health Insurance Portability and Accountability
Act of 1996 (HIPAA)-related calls to residential lines is identical to
the limit that has been in place for more than six years and functioned
without any record evidence of unduly restricting the ability of
callers to make autodialed or prerecorded voice calls under a similar
exemption for wireless telephone numbers. The Commission thus has six
years of experience of applying that numerical limit to this same
category of calls to wireless numbers, and this experience has
demonstrated that this numerical limit strikes an appropriate balance
between these callers reaching consumers with valuable healthcare
information and restoring trust in the residential landline network,
which can help to advance health and the safety of life as discussed
further below.
14. Further, we agree with the Joint Consumer Organizations that
the three-calls-per-thirty-day numerical limit is also reasonable in
light of the two exceptions that the TCPA already provides for
artificial or prerecorded voice calls: all calls relating to
emergencies are permitted, and all calls for which prior express
consent has been provided are permitted. The limitations the Commission
adopted in the TCPA Exemptions Order are narrowly tailored to advance
the health, safety, and privacy of consumers, while still providing
opportunities for callers to contact consumers in an emergency or when
they have received prior express consent. If callers need to make the
calls because of a health or safety emergency or pursuant to prior
express consent, there is no limit on the calls. Thus, we disagree with
ACA's position that we did not consider the needs of utilities to make
emergency calls, as permitted in the rules and Commission precedent.
15. Moreover, as the Commission emphasized in the TCPA Exemptions
Order, callers wishing to make more than three non-telemarketing calls
using
[[Page 3671]]
an artificial or prerecorded voice within any consecutive thirty-day
period can obtain consumer consent to make more. Callers can use
exempted calls to obtain consent if the calls satisfy other applicable
conditions. And most significantly, as discussed above, now that we
have made clear that callers can obtain consent orally from consumers,
informational callers will more easily be able to obtain permission to
exceed the numerical limits. We continue to believe that consumers who
welcome such calls are likely to readily give such consent, and the
record developed on reconsideration does not contradict this assertion.
In addition, because the TCPA only restricts calls to a residential
telephone number when they use an artificial or prerecorded voice,
callers using a live agent to make such calls should not risk violating
the TCPA rules.
16. While ACA and several commenters oppose the three-calls-per-
thirty-day limit and argue such limit is arbitrary and will impede the
ability of informational callers to deliver time-sensitive information
to consumers, they neither offer a clear alternative limit to apply to
all exempted callers nor suggest appropriate distinct limits for each
and every various type of call. In addition, the petitioners offer no
new facts or data on the calls they make that have changed since the
last opportunity to present such matters to the Commission. ``In the
absence of additional data from commenters,'' and to implement the
statutory mandate, we conclude that these numerical limits adequately
balance the privacy interests of consumers with the ability of
informational callers to communicate with the public, and that there is
no reason to revisit these limits at this time.
17. Given that we find the numerical limits to be reasonable, we
decline to adopt what ACA describes as ``important safeguards'' to
ensure that consumers receive the calls they expect. ACA argues that,
if the Commission retains the existing numerical limits, it should
apply them on a ``per event'' or ``per account'' basis rather than on a
``per telephone number'' basis. We believe a per-event or per-account
condition is unnecessary in order for callers to deliver important
information to consumers. We emphasize that informational callers need
only obtain consent orally or in writing from a consumer to be able to
make unlimited calls to that telephone number regarding any event--
whether it be a utility service upgrade, a security threat on a
financial account, or a scheduled medical appointment. Thus, callers
can obtain consent from consumers who desire to receive more than three
calls per thirty days; consent is an important safeguard to ensure not
only that callers can make the calls they need to make, but that
consumers are protected from repetitive nuisance calls. Moreover, ACA's
argument in its reply comments for a ``per event'' or ``per account''
approach to call limits is new, but we see no reason why it could not
have been presented during the rulemaking proceeding. In the absence of
any clear reason that it is in the public interest to adopt ACA's
alternative approach to numerical limits, we find this to be an
alternative and independent reason not to grant ACA's late request.
18. Finally, we decline ACA's request for the Commission to revisit
the numerical limit under the wireless exemption for package delivery
notifications that has been in place since 2014. As the Commission
stated in the TCPA Exemptions Order, such request, which was also made
in response to the TRACED Act Notice of Proposed Rulemaking (NPRM),
published at 85 FR 64091 (Oct. 9, 2020), is outside the scope of
section 8 of the TRACED Act. In addition, we deny ACA's request to
allow package delivery companies to send at least two additional
follow-up messages, even when no signature is required. We find no
reason to conclude that the existing exemption that allows for one
notification (whether by voice call or text message) to notify a
consumer about a package delivery is inadequate to address these
situations as described in the record. To the extent that additional
notifications may prove helpful in these situations, we note that
callers may use their one exempted notification to obtain consent from
recipients to make additional notifications or use a live caller to
contact the recipient.
C. Numerical Limits Are Consistent With the First Amendment as They
Help Restore Trust in the Residential Landline Network and Advance
Health and Safety of Life
19. We also conclude that it is fully consistent with the First
Amendment to retain the call limitation established in the TCPA
Exemptions Order for the residential line exemption for healthcare
calls subject to HIPAA and the distinct call limitation applicable to
the residential line exemptions for noncommercial calls; commercial
calls that do not include an unsolicited advertisement; and calls from
tax exempt nonprofit organizations (collectively, the ``non-HIPAA
exemptions''). In its Petition, Enterprise Communications Advocacy
Coalition (ECAC) argues that the different numerical limits adopted for
the residential line exemption for healthcare calls subject to HIPAA
(one call per day up, to three calls per week) and those adopted for
the non-HIPAA exemptions (three calls per thirty days) constitute
content-based restrictions that fail strict scrutiny and thus violate
the First Amendment. NCTA--The internet & Television Association (NCTA)
similarly argues that ``the three-call limit [on exempted commercial
informational calls] imposes overbroad restrictions on fully protected
speech and violates the First Amendment.'' ECAC and NCTA argue that
because the distinction in the call limitations for the different
residential line exemptions are content-based, that subjects the
Commission's regulatory regime to strict First Amendment scrutiny, and
that the Commission has not satisfied that standard. For the reasons
explained below, we reject the claim that the call limitations violate
the First Amendment and therefore deny requests for reconsideration
premised on that theory.
20. Particularly in light of the Supreme Court's recent decision in
Barr v. Am. Ass'n of Political Consultants (AAPC), we recognize that a
court could view the Commission's approach to the residential line
exemptions as implicating content-based regulation of speech subject to
strict scrutiny. Strict scrutiny requires the ``government [to] prove[]
that the[ restrictions] are narrowly tailored to serve compelling state
interests.'' Evaluating the First Amendment concerns raised on
reconsideration, we find that the call limitations for our residential
line exemptions satisfy strict First Amendment scrutiny. As discussed
below, we conclude that our call limitations are narrowly tailored to
advance a distinct governmental interest--that is, restoring trust in
the residential landline network and advancing the health and safety of
life--and thus satisfy strict First Amendment scrutiny.
21. We conclude that the adopted call limitations for the
residential line exemptions are narrowly tailored to advance the
compelling governmental interest in health and safety of life. The
landline telephone network--and the communication it enables--is an
important tool in ensuring residential consumers receive the
information they need to advance their own health and safety of life
along with that of others. Yet the evidence reveals that the escalating
problem of robocalls has undermined consumers' trust and willingness to
rely on their landline telephone, leading consumers in many
[[Page 3672]]
cases to simply not answer the phone. That communication breakdown can
have significant health and safety of life implications for the many
consumers who rely on residential landline service.
22. As a statutory matter, when calibrating the residential line
exemptions, it is appropriate for the Commission to consider the health
and safety of life implications of the use of the telephone network
that our exemption rules would facilitate. Although the TCPA includes a
special focus on consumer privacy, it nonetheless recognizes the
importance of health and safety of life considerations through the
statutory exemption from TCPA restrictions for calls made or initiated
for emergency purposes. Congress likewise recognized that ``privacy
rights, public safety interests, and commercial freedoms of speech and
trade must be balanced in a way that protects the privacy of
individuals and permits legitimate telemarketing practices.'' Further,
the TCPA was enacted as part of the Communications Act, which
established the Commission to, among other things, ``promot[e] safety
of life . . . through the use of wire and radio communications.''
23. Turning to the specific context at issue here, evidence
supports the conclusion that the volume of robocalls landline consumers
receive undermines their trust in, and willingness to rely on, the
landline telephone network. There is evidence that the number of
robocalls has increased dramatically in recent years. The Commission
previously has cited ``hundreds of comments from consumers [filed in a
rulemaking] stating that they no longer answer their phone when it
rings,'' and has concluded that ``[i]t is obvious that the volume of
unwanted calls is reducing the value of telephony to anyone who makes
or receives calls.'' Commenters state that ``[t]he unremitting nature
of unwanted and unstoppable--even if technically legal--calls made to
landlines has led to a wavering trust in voice calls.'' Unwanted
robocalls, for example, often are either delivered with inaccurate
caller identification (caller ID) information or are delivered with
caller ID information that is not familiar to a consumer, and thus are
highly likely to be viewed by called parties with suspicion. The Joint
Consumer Organizations also explain the practical consequences that
flow from this state of affairs: ``[p]eople have become so inured to
the unwanted calls ringing their lines that they do not pick up--even
when the calls are important.'' There also is evidence that consumers'
increasing reluctance to answer the phone undermines public health and
safety of life that depends on the phone network. Exacerbating this
concern is the fact that traditional residential voice service can be
particularly important for vulnerable populations, such as the elderly.
As the Joint Consumer Organizations observe, ``[t]he Commission's new
regulations provide a meaningful way to rebuild the fading trust in the
usefulness of landlines by arming recipients with effective tools to
stop many of the unconsented-to calls they receive.''
24. Importantly, we find that it is the overall volume of
unauthorized robocalls that has led residential landline consumers
increasingly to simply decline to answer the phone, even if a given
call might, in the abstract, be subjectively desirable to a given
consumer. It is reasonable to assume that callers generally, and
specifically those callers who argue here to be able to make unlimited
numbers of robocalls without consumer consent, have incentives to call
repeatedly because the cost of repeated calling is trivial to the
caller financially, and there exists only an incremental risk a
consumer will not pick up their call. Thus, callers individually have
little or no incentive to be concerned about the collective problem of
unwanted robocalls undermining trust in the network. As a result, it is
appropriate for us to take action to address the larger overall volume
of robocalls. We expect that curtailing the number of calls to
residential lines that can be made by virtue of FCC exemptions under
section 227(b)(2)(B) will substantially reduce the total volume of
calls consumers receive without their prior authorization, helping
restore consumers' confidence in the calls they do continue to receive.
25. As a general matter, and in the absence of anything other than
conclusory assertions to the contrary, we are not persuaded that a less
restrictive limitation than three calls per thirty days would be a
reasonable choice of call limitation for these residential line
exemptions given the compelling governmental interests at stake.
Indeed, one could argue that the need to address the volume of
unauthorized calls and thereby restore trust in the telephone network
could be addressed most effectively by eliminating these exemptions
altogether. But we also must weigh First Amendment considerations, and
in this proceeding we do not find a basis to restrict these calls
further than a limit of three calls per thirty days under the
residential line exemption. In particular, against the backdrop of the
Commission previously having adopted, after a thorough and reasoned
analysis, a three-call-per-thirty day limit for other types of
unconsented-to calls, we conclude that, at least on this record, we do
not find a sufficient justification for taking a more restrictive
approach and either eliminating the exemptions entirely or adopting
lower call limitations, given the need for an appropriate fit between
the regulatory approach and the relevant governmental interest.
26. Notwithstanding those general findings regarding the call
limits for residential line exemptions, we nonetheless find a less
restrictive call limitation warranted for the exemption for healthcare
calls as defined by HIPAA. The exemption for healthcare calls as
defined by HIPAA is unique in that the governmental interest in health
and safety of life cuts both ways with respect to such calls. In other
words, curtailing unauthorized robocalls as a whole will help restore
consumers' trust and willingness to rely on residential landline
service, thereby advancing the governmental interest in health and
safety of life--but, at the same time, allowing healthcare calls as
defined by HIPAA to reach residential consumers is itself also a
benefit to the governmental interest in health and safety of life.
27. On balance, the governmental interest in health and safety of
life is best advanced in this unique scenario by allowing a higher
number of calls under the exemption for healthcare calls as defined by
HIPAA. This call limit matches the limit the Commission adopted for
calls to wireless numbers in 2015, and the Commission found ``no
credible evidence it has unduly restricted healthcare providers'
ability to communicate with their patients.'' We thus conclude that the
risk that a more restrictive call limitation could unduly restrict
healthcare providers' ability to communicate with their patients--a
possibility the Commission cannot rule out on this record--counsels
against a lower call limitation. At the same time, in light of our
experience with the prior limit for calls to wireless numbers, we also
do not find a basis to conclude that a higher number of calls is
warranted here, given the mixed effects of such calls when considered
in conjunction with all the other calls made without prior consent
under the residential line exemptions.
28. We also are not persuaded by commenters' objections to the
Commission's call limitations for the residential call exemptions. Some
commenters contend that other calls implicate health and safety of life
just like health care messages as defined by HIPAA. These commenters
appear
[[Page 3673]]
concerned that the Commission's approach unduly restricts that speech
by failing to apply the more generous call limitations that apply to
healthcare calls as defined by HIPAA. But these claims do not account
for the full range of calls that can be made notwithstanding the TCPA's
restriction on calls to residential lines. In particular, in addition
to the Commission-created exemption for health care calls as defined by
HIPAA, section 227(b)(1)(B) expressly carves out any call made with
``the prior express consent of the called party,'' and any ``call []
initiated for emergency purposes'' from the scope of its prohibitions.
29. As discussed above, the TCPA's restrictions for calls to
residential lines do not apply to calls unless they use an artificial
or prerecorded voice. If callers need to make calls related to, for
example, power outages or utility work, they can either obtain the
consumer's consent to do so before using an artificial or prerecorded
voice or use a live caller to make the call. Or, if the call is made
for an ``emergency purpose'' as defined by the Commission's rules and
orders, it is exempted by our rules. None of the examples in the record
articulate a scenario for which distinct, more lenient call limitations
practically could be crafted, that would apply to circumstances that
both: (i) implicate the governmental interest in health and safety of
life and (ii) is not already subject to either the FCC's exemption for
health care messages as defined by HIPAA or one of the statutory
exceptions. Indiscriminately expanding call limitations based on
speculation that they conceivably might benefit such calls would also
allow an array of other calls that undermine our goal of restoring
greater consumer trust and confidence in the landline telephone
network, to the benefit of health and safety of life. Consequently, the
record does not reveal a plausible alternative approach to expanding
the universe of calls subject to a higher call limitation under the
theory that they are similarly situated to healthcare calls as defined
by HIPAA.
30. Nor does the record identify a plausible alternative approach
that would give more lenient call limitations for calls that commenters
claim are delivered for important interests other than the interest in
health and safety of life. ACA, for example, alludes to an example of
political speech and cites examples of communications bearing on
consumers' financial interests or safety of property. More generally,
NCTA cites TCPA legislative history that ``Congress did not intend the
statute `to be a barrier to the normal, expected, or desired
communications between businesses and consumers.''' These commenters
largely do not contend, let alone provide persuasive evidence, that the
other interests--such as commercial or financial interests or safety of
property--are as compelling as the governmental interest in health and
safety of life that we are seeking to advance, which would be
undermined by allowing more calls to residential landline consumers
without their prior consent. And in all cases, it is essential to keep
the aggregate effects in mind--the higher volume of these other types
of calls raised by commenters will contribute to the overall lack of
trust in the telephone network--a fact undiminished if they at the same
time advance some more narrow interest. Furthermore, the First
Amendment only requires us to consider plausible alternatives, and the
record here does not reveal alternatives that could target just that
speech that advances the other identified interests without sweeping in
other types of speech that would simply contribute to the call volume
that undermines trust in the telephone network without any adequate
countervailing benefit.
31. We also are not persuaded that our call limitations for the
residential call exemptions are unnecessary in light of anti-illegal
robocall measures as a result of the TRACED Act and prior Commission
policies--namely: opt-out rights specified by rule; the required
implementation of STIR/SHAKEN; and call blocking. As discussed below,
we conclude that those other measures--while designed to address
important aspects of the robocalls problem--do not obviate the need for
our approach to call limitations.
32. Opt-Out. The consumer opt-out rights in our rules, while
helpful for consumers, alone are not adequate to protect consumers who
have lost trust in the telephone network and consequently are reluctant
to answer the phone in the first place. If consumers do not answer a
given call and learn who the caller is (assuming that the caller
provides accurate information), they have no ability to opt out of
future calls from that caller. Thus, despite the important protections
they afford, opt-out mechanisms are unlikely to meaningfully reduce the
volume of calls received by those consumers who already have lost trust
in the telephone network.
33. STIR/SHAKEN. While voice service provider implementation of
STIR/SHAKEN will combat robocalls and introduce additional trust into
the network, it addresses a different problem than the rules at issue
here. STIR/SHAKEN combats the problem of illegal spoofing--that is, the
falsification of caller ID information by bad actors to deceive call
recipients into believing a call is trustworthy. It accomplishes this
goal by allowing terminating providers to verify that the caller ID
information attached to a call is legitimate. By adding new information
about the call originator and caller ID information displayed,
widespread implementation of STIR/SHAKEN promotes call blocking and
labeling, enables more effective enforcement, and restores trust in
caller ID information.
34. STIR/SHAKEN combats scam spoofed calls, which is a subset of
unwanted calls. All forms of unwanted robocalls undercut Americans'
trust in the voice network in their own way. An estimate from YouMail
found that scam robocalls were just 47% of all robocalls in 2019. The
remainder totals an estimated 31 billion robocalls--comparable to the
number of all robocalls in 2016. Other estimates also indicate that a
large proportion of robocalls are not scams. Merely reducing the number
of scam calls--while highly valuable as a form of consumer protection
and significant progress relative to the status quo in terms a
reduction to the volume of robocalls--is not sufficient in itself to
restore trust that an incoming call is likely to be one the recipient
wants to answer. Even if STIR/SHAKEN implementation--and the associated
call blocking and consumer response--succeeds at eliminating all scam
robocalls, a significant number of unwanted robocalls would remain.
This, in turn, would continue to undermine trust in the telephone
network unless it can be further addressed by the Commission in its
calibration of residential line exemptions.
35. Call Blocking. In significant part, the call blocking analysis
follows our analysis of STIR/SHAKEN. Even though call blocking measures
need not focus solely on scam or illegal robocalls, measures currently
in place for landline customers frequently are focused in that manner.
To the extent that call blocking targets scam calls, that step--while
important and beneficial--does not fully address the problem with lost
confidence in the telephone network for the same reasons discussed
above with respect to STIR/SHAKEN.
36. Although call blocking tools also can, in part, address legal
but unwanted calls, the record here does not support a finding that
such measures have the prevalence and degree of success needed to
obviate the need for call limitations (or to enable the relaxation
[[Page 3674]]
of call limitations) for the residential line exemptions. For one, the
record does not demonstrate how successful blocking tools are today at
blocking unwanted calls. For another, the Commission has acknowledged
and emphasized on numerous occasions in its call blocking orders that
any single solution will not be sufficient to address the full problem
of unwanted robocalls, and that we therefore need to approach it from
multiple angles. Thus, even accepting that some tools seek to block
calls beyond scam or illegal calls, we are not confident yet that they
would curtail such calls to an appreciable degree. This concern about
the tools' design is exacerbated by the limited extent of the public's
use of them today. Tools blocking unwanted calls (as distinct from scam
or illegal calls) do not appear to be widely in use by consumers today,
even if available (and even if available at no cost). In a number of
cases, they appear to be offered on an opt-in basis and/or otherwise
require affirmative steps by the consumer to set it up. Thus, although
they are important tools even today, and have promise to become even
more important over time, there is not sufficiently widespread use of
tools that block unwanted calls that are not scam or illegal calls to
adequately address the circumstances that have led to a loss of trust
in the telephone network and associated risks to health and safety of
life. Because these tools, however successful they may prove to be,
will take substantial time to be deployed on a widescale basis by both
internet Protocol (IP) and non-IP based providers, we do not find them
to serve as an adequate remedy for the immediate scourge of illegal and
unwanted robocalls that will continue to serve as a deterrent to
residential telephone use today and in the immediate future. Thus,
while blocking tools are incredibly valuable, additional steps to
reduce the number of potentially unwanted calls overall: (1) reduce the
risk that consumers will be disrupted by a high volume of such calls;
and (2) reduce the risk that calls made under the TCPA exemptions will
be blocked that, individually, may be wanted, but are not wanted at
such high volumes. We will continue to monitor the success of blocking
tools and reevaluate our numerical limits in light of our experience
with these tools.
37. In sum, we conclude that our call limitations for the
residential line exemptions are narrowly tailored to advance the
compelling government interest in health and safety of life because
they help restore residential landline consumers' trust and willingness
to rely on the residential landline telephone network. Further, we do
not find that other regulatory alternatives adequately meet this need.
Indeed, not only do opt-out, STIR/SHAKEN, and call blocking each have a
discrete sphere of likely impact, but even taken in the aggregate they
do not address all aspects of the problem. This is sufficient to
satisfy strict First Amendment scrutiny.
D. Opt-Out Requirements for Exempt Calls to Residential Lines
38. We deny ACA's request to reconsider the Commission's decision
to extend to informational calls opt-out requirements that had
previously applied only to telemarketing calls. These requirements
mandate use of automated opt-out mechanisms, as well as opt-out lists
and policies. Under the new rules, a consumer who wants to avoid
further artificial or prerecorded informational calls can ``opt out''
by dialing a telephone number (required to be provided in the
artificial or prerecorded voice message) to register his or her do-not-
call request in response to that call. Our rules also require that the
caller provide an automated, interactive voice- and/or key press-
activated opt-out mechanism for the called person to make a do-not-call
request. To effectuate an opt-out mechanism, callers must comply with
the requirements of Sec. 64.1200(d) of our rules, which governs the
process for handling do-not-call requests. ACA argues that such
requirements would be burdensome and that the former rules requiring
informational callers to provide only caller identification and a
telephone number at the beginning of prerecorded and artificial voice
calls are sufficient to protect consumers. ACA further maintains that
the Commission did not provide ``any reasoned explanation, cost-benefit
analysis, or assessment of the impact on the informational calls that
might no longer be able to reach consumers.''
39. As the Commission explained in the TCPA Exemptions Order, an
opt-out mechanism gives consumers more say in how many calls they
receive. We believe consumers should be able to decide which types of
calls they want to receive on their residential lines and which they
wish to avoid. We agree with the Joint Consumer Organizations that
requiring callers making exempt calls to provide an automated opt-out
mechanism will significantly empower telephone call recipients to stop
unwanted calls. In addition, eliminating opt-out requirements for
prerecorded calls to residential lines, as the ACA Petition requests,
would remove an additional tool that consumers can use to limit the
number of artificial or prerecorded voice calls that they receive--a
tool that is consistent with Congress's direction in the TRACED Act of
placing limits on the number of calls made pursuant to exemptions--and
would lead to more unwanted calls. While commenters argue that applying
the same opt-out requirements that apply to telemarketers is a
departure from longstanding precedent, they offer no persuasive reasons
for why consumers should not be afforded the same tools to avoid
unwanted informational calls as they have to combat unwanted
telemarketing calls, particularly given the unrelenting number of
unwanted robocalls consumers face today. NCTA argues that businesses
``have every incentive to communicate efficiently with and respect the
privacy of their customers, as any failure to do so could result in
reputational harm and a loss of business.'' And yet the evidence shows
that consumers continue to be deluged with unwanted robocalls to their
landlines.
40. Informational callers have a variety of alternative methods
they may use to reach consumers, including the use of live operators on
any calls they make. Our opt-out requirement prohibits only the use of
an artificial or prerecorded voice message on future calls to the call
recipient. It does not preclude further communication by any other
means. To the extent that consumers consider such calls beneficial,
they have the ability not to exercise the option to opt out from
receiving them and even to consent to receiving unlimited calls from a
particular caller. We thus disagree with ACA's assertion that the
Commission did not fully consider the cost-benefit impact of precluding
informational calls after a consumer opts out of such calls. To the
contrary, the Commission recognized that requiring an opt-out mechanism
for informational calls will provide a significant benefit--it will
``empower consumers to stop unwanted calls made pursuant to an
exemption under section 227(b)(2)(B)'' and ``give consumers more say in
how many calls they receive''--and it also considered the burden that
adopting an automated, interactive opt-out mechanism will impose on
callers who make prerecorded message calls. In doing so, however, the
Commission noted that ``the technology that enables opt out is
commonplace and easily accessible.'' Nevertheless, ``we recognize that
this requirement will impose some additional burden,'' and to alleviate
that
[[Page 3675]]
burden, we allowed for a six-month implementation period before the
opt-out requirements took effect. We took that action to ``ensure that
affected calling parties can implement necessary changes in a cost-
effective way that makes sense for their individual business models.''
Thus, we reject ACA's argument that we failed to consider the costs and
benefits associated with the new rule.
41. Furthermore, we continue to disagree with commenters who argue
that opt-out requirements for exempt callers are overly burdensome. The
Commission placed a similar condition on exemptions for calls to
wireless numbers, and there is no evidence that callers have not been
able to comply with such requirements in that context. The technology
that enables opt-out mechanisms is commonplace and easily accessible;
the Commission's rules have required telemarketers to use the available
tools and equipment since 2012.
E. Declaratory Ruling
42. We grant ACA's request to confirm that an earlier Commission
ruling on ``prior express consent'' for calls made by utility companies
to wireless phone numbers applies equally to residential numbers. As
discussed herein, we apply the guidance and compliance standards set
forth in the Edison Electric Institute (EEI) Declaratory Ruling, FCC
16-88, released on August 4, 2016, which addressed utility calls to
wireless telephone numbers, to calls made to residential lines.
Specifically, we confirm that consumers who provide their wireless or
residential telephone number to a company involved in the provision of
their utility service when they initially sign up to receive utility
service, subsequently supply the wireless or residential telephone
number, or later update their contact information with their wireless
or residential telephone number, have given prior express consent to be
contacted by that company at that number with messages that are closely
related to the utility service so long as the consumer has not provided
instructions to the contrary.
43. In addition, at the request of several Texas utility companies,
and consistent with the Commission's treatment of prior express consent
in other contexts, we take this opportunity also to confirm that the
provision of a telephone number to the subscriber's utility service
provider reasonably evidences prior express consent by the subscriber
to be contacted at that number by an upstream electric utility that:
(1) provides electricity service to the subscriber's retail electricity
provider, to whom the telephone number is given by the subscriber; or
(2) is an affiliate of another utility company that provides some other
type of utility service to the subscriber, to whom the telephone number
is given by the subscriber. In some instances, the upstream electric
utility provider may be best positioned to provide subscribers with
more timely information regarding issues that may be affecting their
service. This ensures that utility service providers involved in the
provision of utility service to a subscriber but do not have a direct
customer relationship with the subscriber can rely upon consent given
to a retail utility provider to communicate with an affected subscriber
on matters closely related to the utility service, such as situations
in which the provision of electricity service is, or is scheduled to
be, impacted due to issues related to the upstream utilities'
generation or transmission of electricity.
44. Consistent with the Commission's precedent, we confirm that
calls closely related to utility services include those that warn about
planned or unplanned service outages; provide updates about service
outages or service restoration; ask for confirmation of service
restoration or information about lack of service; provide notification
of meter work, tree trimming, or other field work that directly affects
the customer's utility service; notify consumers they may be eligible
for subsidized or low-cost services due to certain qualifiers such as,
for example, age, low income or disability; or provide information
about potential brown-outs due to heavy energy usage.
45. With regard to calls regarding payment for current utility
service, we also incorporate the Commission's prior ruling.
Specifically, in the absence of facts supporting a contrary finding,
prior to the termination of a customer's utility service, a customer
who provided a residential telephone number when he or she initially
signed up to receive utility service, subsequently supplied the
residential telephone number, or later updated his or her contact
information with a residential telephone number, is deemed to have
given prior express consent to be contacted by their utility company
with messages that are closely related to the service, as described
above, as well as calls to warn about the likelihood that failure to
make payment will result in service curtailment. After a customer's
utility service has been terminated, however, routine debt collection
calls by utilities to those customers will continue to be governed by
existing rules and requirements, and we leave undisturbed the existing
legal and regulatory framework for those calls.
46. We agree with the petitioner and commenters who support this
request that these types of informational communications from utility
providers are critical to providing safe, efficient, and reliable
service. In fact, the Commission has long recognized that ``[s]ervice
outages and interruptions in the supply of water, gas or electricity
could in many instances pose significant risks to public health and
safety, and the use of prerecorded message calls could speed the
dissemination of information regarding service interruptions or other
potentially hazardous conditions to the public.'' There are a wide
range of potential risks to public health and safety presented by the
interruption of utility services, and the use of artificial or
prerecorded voice message calls can be critically important in speeding
dissemination of time-sensitive information to the public. We also note
that no commenter opposes this request.
47. To ensure that utility companies call only those consumers who
have consented to receive artificial or prerecorded voice calls and
that such calls are closely related to the provision of service, we
reiterate that the utility company is responsible for demonstrating
that the consumer provided prior express consent, as it is in the best
position to keep records in the usual course of business showing such
consent, and the utility company will bear the burden of showing it
obtained the necessary prior express consent. We also note that
consumers have the right to revoke consent to such calls if they no
longer wish to receive them, just as they can when these calls are made
to wireless numbers. As a result, we believe this ruling balances
important public safety communications with consumer privacy interests.
Ordering Clauses
48. It is ordered, pursuant to the authority contained in sections
1-4, 227, and 405 of the Communications Act of 1934, as amended, 47
U.S.C. 151-154, 227, 405, and Sec. Sec. 1.2 and 1.429 of the
Commission's rules, 47 CFR 1.2, 1.429, that the Order on
Reconsideration and Declaratory Ruling is adopted.
49. It is further ordered that the Declaratory Ruling of the Order
on Reconsideration and Declaratory Ruling shall be effective upon
release. It is further ordered that rule amendments adopted in the
Order on Reconsideration and Declaratory Ruling shall be effective six
months after
[[Page 3676]]
publication in the Federal Register, which shall be preceded by OMB
approval of the modified information collection requirements adopted
herein.
50. It is further ordered that, pursuant to 47 CFR 1.4(b)(1), the
period for filing petitions for reconsideration or petitions for
judicial review of any aspect of the Order on Reconsideration and
Declaratory Ruling will commence on the date that a summary of the
Order on Reconsideration and Declaratory Ruling is published in the
Federal Register.
51. It is further ordered that the TCPA Exemptions Order adopted in
CG Docket No. 02-278 on December 29, 2020, is affirmed in part and
reversed in part to the extent indicated herein.
52. It is further ordered that the Petitions for Reconsideration
filed by the ACA International et al. and Enterprise Communications
Advocacy Coalition in CG Docket No. 02-278 on March 29, 2021, and March
17, 2021, respectively, are granted in part and denied in part to the
extent indicated herein.
Supplemental Final Regulatory Flexibility Analysis
53. As required by the Regulatory Flexibility Act of 1980, as
amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was
incorporated in the Traced Act NPRM, CG Docket No. 02-278, Notice of
Proposed Rulemaking, published at 85 FR 64091, October 9, 2020. The
Commission sought written public comment on the proposals in the Traced
Act NPRM, including comment on the IRFA. The Commission subsequently
incorporated a Final Regulatory Flexibility Analysis (FRFA) in the TCPA
Exemptions Order. This Supplemental FRFA conforms to the RFA and adopts
by reference the FRFA in the TCPA Exemptions Order. It reflects changes
to the Commission's rules arising from the Order on Reconsideration
prepared in response to the Petitions for Reconsideration filed by ACA
International et al. (ACA) and Enterprise Communications Advocacy
Coalition (ECAC).
A. Need for, and Objectives of, the Order on Reconsideration
54. The Order on Reconsideration is part of the Commission's
ongoing work to combat unwanted robocalls while permitting legitimate
callers to deliver information consumers have consented to receive.
Specifically, the Order on Reconsideration grants petitioners' request
to clarify and amend the rules so that callers may obtain consent
either orally or in writing to exceed the numerical limits on
artificial or prerecorded voice calls to residential telephone lines
made under the exemptions contained in Sec. 64.1200(a)(3)(ii) through
(v) of the Commission's rules. The Commission agrees with the
petitioners and commenters, including both industry and consumer
organizations, that the Commission did not intend to require that such
callers obtain consent only in writing. While the text of the TCPA
Exemptions Order did not specify that consent must obtained in writing,
the Commission agrees with petitioners that the amended rule
implementing the numerical limitations inadvertently appeared to
require prior express written consent to exceed those limitations. As a
result, the Commission now amends Sec. 64.1200(a)(3) of its rules to
make clear that consent for informational, non-telemarketing calls to
residential telephone lines can be obtained orally or in writing,
consistent with longstanding Commission precedent.
55. The Order on Reconsideration denies petitioners' request to
reconsider the Commission's numerical limits on exempt non-
telemarketing calls to residential lines. The Commission affirms that
limiting the number of exempted calls to residential lines will greatly
reduce the interruptions from unwanted calls and reduce the burden on
residential telephone users to manage such calls. The Commission
continues to believe that limiting the number of calls that can be made
to a particular residential line to three artificial or prerecorded
voice calls within any consecutive thirty-day period strikes the
appropriate balance between these callers reaching consumers with
valuable information and reducing the number of unexpected and unwanted
calls consumers currently receive. In addition, the limit of three
calls per thirty-day period is ``in line with'' the conditions for
exempted calls to wireless numbers.
56. The Order on Reconsideration also denies petitioners' request
to reconsider the Commission's decision to extend to informational
calls opt-out requirements that had previously applied only to
telemarketing calls. These requirements mandate use of automated opt-
out mechanisms, as well as opt-out lists and policies. Under the new
rules, a consumer who wants to avoid further artificial or prerecorded
informational calls can ``opt out'' by dialing a telephone number
(required to be provided in the artificial or prerecorded voice
message) to register his or her do-not-call request in response to that
call. The rules also require that the caller provide an automated,
interactive voice- and/or key press-activated opt-out mechanism for the
called person to make a do-not-call request. The Commission affirms
that an opt-out mechanism gives consumers more say in how many calls
they receive and that consumers should be able to decide which types of
calls they want to receive on their residential lines and which they
wish to avoid.
57. Finally, the Order on Reconsideration grants the request of ACA
to confirm that the Commission's ruling on ``prior express consent''
for calls made by utility companies to wireless phones applies equally
to residential landlines. The Commission confirms that consumers who
provide their residential telephone number to a utility company when
they initially sign up to receive utility service, subsequently supply
the residential telephone number, or later update their contact
information with their residential telephone number, have given prior
express consent to be contacted by their utility company at that number
with messages that are closely related to the utility service so long
as the consumer has not provided ``instructions to the contrary.'' The
Order on Reconsideration concludes that there are a wide range of
potential risks to public health and safety presented by the
interruption of utility services, and the use of prerecorded voice
message calls can be critically important in speeding dissemination of
time sensitive information to the public.
B. Summary of Significant Issues Raised by Public Comments in Response
to the IRFA and FRFA
58. In the Traced Act NPRM, the Commission solicited comments on
how to minimize the economic impact of the new rules on small
businesses. There were no comments filed that specifically addressed
the rules and policies proposed in the IRFA. In the TCPA Exemptions
Order, however, the Commission described three comments that focused on
the challenges certain entities might face in complying with the opt-
out requirements, given their small staffs and limited resources. The
FRFA addressed those concerns. The ACA Petition and ECAC Petition
addressed in the Order on Reconsideration, and in associated comments,
did not raise any concerns with the FRFA.
C. Response to Comments by the Chief Counsel for Advocacy of the Small
Business Administration
59. Pursuant to the Small Business Jobs Act of 2010, which amended
the RFA, the Commission is required to respond to any comments filed by
the
[[Page 3677]]
Chief Counsel for Advocacy of the Small Business Administration (SBA),
and to provide a detailed statement of any change made to the rules as
a result of those comments. The Chief Counsel did not file any comments
in response to the rules adopted in this proceeding.
D. Description and Estimate of the Number of Small Entities to Which
the Rules Will Apply
60. The RFA directs the Commission to provide a description of and,
where feasible, an estimate of the number of small entities that will
be affected by the rules adopted herein. The RFA generally defines the
term ``small entity'' as having the same meaning as the terms ``small
business,'' small organization,'' and ``small government
jurisdiction.'' In addition, the term ``small business'' has the same
meaning as the term ``small business concern'' under the Small Business
Act. A small business concern is one which: (1) is independently owned
and operated; (2) is not dominant in its field of operation; and (3)
satisfies any additional criteria established by the SBA.
61. As noted above, the Commission incorporated a FRFA into the
TCPA Exemptions Order. In that analysis, the Commission described in
detail the various small business entities that may be affected by the
final rules, including telemarketing bureaus and other contact centers.
The Order on Reconsideration amends the final rules adopted in the TCPA
Exemptions Order affecting entities that make calls to residential
lines pursuant to an exemption in the Commission's rules. The
Supplemental FRFA accompanying the Order on Reconsideration adopts by
reference the description and estimate of the number of small entities
from the IRFA in the Traced Act NPRM and FRFA in the TCPA Exemptions
Order.
E. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements for Small Entities
62. In Section E of the FRFA in the TCPA Exemptions Order, the
Commission described in detail the projected reporting, recordkeeping,
and other compliance requirements for small entities arising from the
rules adopted in the TCPA Exemptions Order. This Supplemental FRFA
adopts by reference the requirements described in Section E of the
FRFA. In the Order on Reconsideration, however, the Commission modifies
rules adopted in the TCPA Exemptions Order to make clear that callers
may obtain consent either orally or in writing to exceed the numerical
limits on artificial or prerecorded voice calls to residential
telephone lines made under the exemptions contained in Sec.
64.1200(a)(3)(ii) through (v) of the Commission's rules. This action
should significantly reduce any compliance requirements for small
entities. As the Commission emphasized in the TCPA Exemptions Order,
callers can use exempted calls to obtain consent if the calls satisfy
other applicable conditions. Such consent may be obtained verbally on
the call. The Commission stated that consumers who welcome the calls
would be likely to give such consent. Because the TCPA only restricts
calls initiated with an artificial or prerecorded voice to a
residential telephone, callers can use a live agent to make such calls
without running afoul of the TCPA.
F. Steps Taken To Minimize Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
63. The RFA requires an agency to describe any significant
alternatives that it has considered in reaching its proposed approach,
which may include the following four alternatives (among others): (1)
the establishment of differing compliance or reporting requirements or
timetables that take into account the resources available to small
entities; (2) the clarification, consolidation, or simplification of
compliance or reporting requirements under the rule for small entities;
(3) the use of performance, rather than design, standards; and (4) an
exemption from coverage of the rule, or any part thereof, for small
entities.
64. The Commission considered feedback in response to the ACA
Petition and ECAC Petition in crafting the Order on Reconsideration. We
evaluated the comments with the goal of removing regulatory roadblocks
and giving industry the flexibility to continue to make calls pursuant
to any exemption previously carved out by the Commission, while still
protecting the interests of consumers who do not want to receive
unlimited calls from such entities and allowing consumers to opt out of
future calls from such entities. For example, in the TCPA Exemptions
Order, the Commission retained all existing exemptions for calls to
residential numbers, concluding that such exemptions satisfy the TRACED
Act's requirements regarding the classes of parties that may make such
calls and the classes of parties that may be called. In the Order on
Reconsideration, the Commission takes further action to give industry
even more flexibility to make calls to consumers by amending Sec.
64.1200(a)(3) of the rules to make clear that consent for
informational, non-telemarketing calls to residential telephone lines
can be obtained orally or in writing, consistent with longstanding
Commission precedent. This should significantly minimize any compliance
costs and burdens on small entities that are subject to the TCPA rules.
List of Subjects in 47 CFR Part 64
Communications common carriers, Reporting and recordkeeping
requirements, Telecommunications, Telephone.
Federal Communications Commission.
Marlene Dortch,
Secretary, Office of the Secretary.
Final Rules
For the reasons discussed in the preamble, the Federal
Communications Commission amends 47 CFR part 64 as follows:
PART 64--MISCELLANEOUS RULES RELATING TO COMMON CARRIERS
0
1. The authority citation for part 64 continues to read as follows:
Authority: 47 U.S.C. 151, 152, 154, 201, 202, 217, 218, 220,
222, 225, 226, 227, 227b, 228, 251(a), 251(e), 254(k), 255, 262,
276, 403(b)(2)(B), (c), 616, 617, 620, 1401-1473, unless otherwise
noted; Pub. L. 115-141, Div. P, sec. 503, 132 Stat. 348, 1091.
0
2. Section 64.1200 is amended by revising paragraph (a)(3) introductory
text to read as follows:
Sec. 64.1200 Delivery restrictions.
(a) * * *
(3) Initiate any telephone call to any residential line using an
artificial or prerecorded voice to deliver a message that includes or
introduces an advertisement or constitutes telemarketing without the
prior express written consent of the called party, or that exceeds the
applicable numerical limitation on calls identified in paragraphs
(a)(3)(ii) through (v) of this section without the prior express
consent of the called party. A telephone call to any residential line
using an artificial or prerecorded voice to deliver a message requires
no consent if the call:
* * * * *
[FR Doc. 2023-00635 Filed 1-19-23; 8:45 am]
BILLING CODE 6712-01-P
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