30 October 2008
[Federal Register: October 30, 2008 (Volume 73, Number 211)]
[Rules and Regulations]
[Page 64556-64558]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30oc08-10]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 64
[CG Docket Nos. 02-278 and 05-338; FCC 08-239]
Rules and Regulations Implementing the Telephone Consumer
Protection Act of 1991; Junk Fax Prevention Act of 2005
AGENCY: Federal Communications Commission.
ACTION: Final rule; clarification.
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SUMMARY: In this document, the Commission addresses certain issues
raised in petitions for reconsideration and/or clarification of the
Report and Order implementing the Junk Fax Prevention Act of 2005. The
Commission believes the clarifications provided will assist senders of
facsimile advertisements in complying with the Commission's rules in a
manner that minimizes regulatory compliance costs while maintaining the
protections afforded consumers under the Telephone Consumer Protection
Act (TCPA).
DATES: Effective October 30, 2008.
FOR FURTHER INFORMATION CONTACT: Erica McMahon, Consumer & Governmental
Affairs Bureau at (202) 418-0346 (voice), or e-mail
Erica.McMahon@fcc.gov.
SUPPLEMENTARY INFORMATION:
This is a summary of the Commission's Order on Reconsideration, FCC
08-239, adopted on October 8, 2008, and released on October 14, 2008.
The Order on Reconsideration addresses certain issues raised in
petitions for reconsideration and/or clarification filed in response to
the Commission's Rules and Regulations Implementing the Telephone
Consumer Protection Act of 1991; Junk Fax Prevention Act of 2005, CG
Docket Nos. 02-278 and 05-338, Report and Order and Third Order on
Reconsideration, document FCC 06-42 (Junk Fax Order), published at 71
FR 25967, May 3, 2006. Copies of document FCC 08-239 and 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 FCC 08-239 and any subsequently
filed documents in this matter may also be purchased from the
Commission's duplicating contractor at Portals II, 445 12th Street,
SW., Room CY-B402, Washington, DC 20554. Customers may contact the
Commission's duplicating contractor at their Web site: http://
www.bcpiweb.com or call 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). Document FCC 08-239 can also be
downloaded in Word and Portable Document Format (PDF) at: http://
www.fcc.gov/cgb/policy.
Paperwork Reduction Act of 1995 Analysis
Document FCC 08-239 does not contain any new or modified
information collection requirements subject to the Paperwork Reduction
Act of 1995 (PRA), Public Law 104-13. In addition, it does not contain
any 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, see 44 U.S.C.
3506(c)(4).
Synopsis
1. In document FCC 08-239, the Commission clarifies that: (1)
Facsimile numbers compiled by third parties on behalf of the facsimile
sender will be presumed to have been made voluntarily available for
public distribution so long as they are obtained from the intended
recipient's own directory, advertisement, or Internet site; (2)
reasonable steps to verify that a recipient has agreed to make
available a facsimile number for public distribution may include
methods other than direct contact with the recipient; and (3) a
description of the facsimile sender's opt-out mechanism on the first
Web page to which recipients are directed in the opt-out notice
satisfies the requirement that such a description appear on the first
page of the Web site. The Commission believes these clarifications will
assist senders of facsimile advertisements in complying with the
Commission's rules in a manner that minimizes regulatory compliance
costs while maintaining the protections afforded consumers under the
Telephone Consumer Protection Act (TCPA).
Junk Fax Prevention Act of 2005
2. On April 6, 2006, as required by the Junk Fax Prevention Act,
the Commission released the Junk Fax Order amending its rules on
unsolicited facsimile advertisements. In so doing, the Commission
adopted the requirements of that statute virtually verbatim. As
relevant here, the Junk Fax Prevention Act allows a sender that has an
established business relationship (EBR) with the recipient to send an
unsolicited facsimile advertisement if the sender obtained the number
of the facsimile machine through: (1) The voluntary communication of
such number, within the context of the EBR, from the recipient of the
facsimile advertisement, or (2) a directory, advertisement, or site on
the Internet to which the recipient voluntarily agreed to make
available its facsimile number for public distribution. For this second
category of facsimile numbers, the Commission found that it would be
unduly burdensome for senders of facsimile advertisements to verify
that the recipient voluntarily agreed to make the facsimile number
public in every instance. As a result, the Commission concluded that
``a facsimile number obtained from the recipient's own directory,
advertisement, or internet site was voluntarily made available for
public distribution, unless the recipient has noted on such materials
that it does not accept unsolicited advertisements'' at that number.
The Commission noted, however, that if a sender obtains the facsimile
number from sources of information compiled by third parties--such as
membership directories and commercial databases, the sender ``must take
reasonable steps to verify that the recipient consented to have the
number listed, such as calling or emailing the recipient.''
3. The Junk Fax Prevention Act also requires that all unsolicited
facsimile advertisements include an opt-out notice that instructs
recipients on how to notify senders that they do not wish to receive
future facsimile advertisements. Among other requirements, the opt-out
notice must identify a ``cost-free'' mechanism by which recipients can
transmit their opt-out requests. The Commission concluded that, if a
sender designates a Web site as its cost free opt-out mechanism, a
description of the opt-out mechanism and procedures must be included
``clearly and conspicuously on the first page of the Web site.'' The
Commission also clarified that, in accordance with the Junk Fax
[[Page 64557]]
Prevention Act, if there are several pages to the facsimile, the first
page of the advertisement must contain the opt-out notice. In so doing,
the Commission declined to find that the ``first page'' notice
requirement was satisfied by including the notice on a cover page.
Rather, the Commission required that the opt-out notice appear on the
first page of the advertisement itself. Finally, the Commission
declined to limit the time period during which a request to opt out
from receiving unsolicited facsimile advertisements remains in effect.
The Commission concluded that requiring consumers to repeat their opt-
out requests to potentially hundreds of senders of unsolicited
facsimile advertisements would be overly burdensome to recipients.
Therefore, once an opt-out request has been received, the sender is
prohibited from transmitting facsimile advertisements to that number
until the sender obtains the prior express permission of the recipient
to resume sending facsimile advertisements.
Petitions for Reconsideration
4. On June 2, 2006, two petitions for reconsideration and
clarification were filed in response to the Junk Fax Order.
Specifically, the Direct Marketing Association (DMA) seeks
clarification that the Junk Fax Order does not prohibit the use of
third-party agents to perform services that an organization would
otherwise be permitted to conduct internally. In addition, DMA urges
the Commission to make clear that when a sender does elect to use
facsimile numbers collected independently from a third party source
such as a membership directory, that ``reasonable steps'' to verify the
number was provided voluntarily may include measures that do not
involve direct contact with the intended recipient. Finally, DMA
requests that the Commission reconsider the decision not to limit the
time period for which an opt-out request remains in effect.
5. Leventhal Senter and Lerman PLLC (LS&L), on behalf of certain
unnamed broadcast clients, seeks reconsideration or clarification of
two issues relating to the opt-out notice. First, LS&L requests that
the Commission clarify that the requirement that a clear and
conspicuous description of the opt-out mechanism appear on the Web
site's first page is met when ``a dedicated opt-out page [is] specified
by URL in the opt-out notice'' that appears in the facsimile
advertisement. In addition, LS&L suggests that a link could be included
on the Web site's homepage to direct recipients to the appropriate
internal Web page. Second, LS&L requests that a properly formatted opt-
out notice included on a facsimile cover page complies with the
requirement that such opt-out notice appear on the ``first page of the
advertisement.''
Established Business Relationship
Facsimile Numbers Obtained From the Recipient's Own Directory,
Advertisement or Internet Site
6. Consistent with the Commission's conclusion in the Junk Fax
Order, the Commission reiterates that facsimile numbers compiled on
behalf of the facsimile sender will be presumed to have been
voluntarily made available for public distribution so long as they are
obtained from the intended recipient's own directory, advertisement or
Internet site. In so doing, the Commission agrees with DMA that it did
not limit this presumption to only those situations in which the sender
compiles this information through ``in-house'' employees. Rather, it is
the source from which the facsimile number is obtained, and not the
identity of the compiler, that provides evidence of whether the
recipient intended to make that number available for public
distribution. Therefore, no additional verification that the recipient
has voluntarily made available his or her facsimile number is required
if the number is obtained from the recipient's own directory,
advertisement or Internet site. However, the Commission cautions that a
sender that uses a third party to compile facsimile numbers will be
liable for the errors of its third-party agent or contractor. The
Commission also reiterates that senders of facsimile advertisements
must have an EBR with the recipient in order to send the advertisement
to the recipient's facsimile number. The fact that the facsimile number
was made available in the recipient's own directory, advertisement or
Web site does not alone entitle a sender to transmit a facsimile
advertisement to that number.
Reasonable Steps to Verify That the Recipient Has Voluntarily Made
Available a Facsimile Number
7. The Commission clarifies that ``reasonable steps'' under its
rules to verify that a recipient has agreed to make available a
facsimile number for public distribution may include methods other than
calling or e-mailing the recipient directly. The Commission cited these
verification methods in the Junk Fax Order as examples that satisfy
this requirement. The Commission did not, however, limit parties in
this context only to means of direct contact with the recipient.
8. The Commission agrees with DMA that it is possible that the
circumstances attending the collection of a facsimile number can
provide sufficient evidence that the number has been provided
voluntarily for public distribution without the necessity of contacting
the recipient. For example, the recipient may expressly agree at the
point of collection to allow for public disclosure of the facsimile
number. The Commission cautions, however, that should a complaint arise
on this issue, the facsimile sender has the burden to demonstrate that
the circumstances surrounding the acquisition of the facsimile number
reasonably indicate that the recipient agreed to make the facsimile
number available for public distribution.
Notice of Opt-Out Opportunity
Location of the Opt-Out Mechanism on the Web site's First Page
9. The Commission clarifies that a facsimile sender satisfies the
requirement to provide clear and conspicuous notice of a cost-free
mechanism for transmitting opt-out requests when the opt-out notice
directs the recipient to a dedicated Web page that allows the recipient
to opt-out of future facsimile advertisements. The Commission's rules
require that all facsimile advertisements include an opt-out notice by
which recipients can inform senders that they do not wish to receive
future unsolicited advertisements. The notice must include a domestic
telephone number and facsimile number for the recipient to transmit an
opt-out request. If neither the required telephone number nor facsimile
number is a toll free number, a separate cost-free mechanism must be
provided for the recipient to transmit the opt-out request. In the Junk
Fax Order, the Commission noted that, if the sender designates a Web
site as its cost-free opt-out mechanism, a description of the mechanism
must be included clearly and conspicuously on the first page of the Web
site.
10. The Commission clarifies that a description of the facsimile
sender's opt-out mechanism on the first Web page to which recipients
are directed in the opt-out notice satisfies the requirement that such
a description appear on the ``first page'' of the Web site. In
addition, a clear and conspicuous link should be provided on the Web
site's homepage to direct recipients to the appropriate internal opt-
out Web page. The Commission agrees with LS&L, however, that it did not
intend to mandate that the entire opt-out mechanism must appear on the
[[Page 64558]]
homepage of every sender of unsolicited facsimile advertisements.
Rather, the intent of this requirement is to provide a reasonable means
for recipients to locate the facsimile sender's opt-out mechanism and
make requests to avoid future unwanted facsimiles. The Commission
believes this interpretation of the ``first'' Web page requirement
adequately ensures that recipients can locate the opt-out mechanism
while providing flexibility to facsimile senders in designing their Web
sites in the most cost-effective manner to comply with this
requirement.
Facsimile Cover Page
11. The Commission declines to reconsider its decision that the
first page of the facsimile advertisement must contain the opt-out
notice. In so doing, the Commission notes that the Junk Fax Prevention
Act requires that ``the notice is clear and conspicuous and on the
first page of the unsolicited advertisement.'' Specifically, the
Commission declines to find that placement of the opt-out notice on a
cover sheet that accompanies the facsimile advertisement satisfies this
requirement. The Commission specifically addressed this issue in the
Junk Fax Order, and petitioners provide no new information or evidence
that leads the Commission to now reconsider this conclusion.
Duration of Opt-Out Requests
12. The Commission declines to reconsider its decision not to limit
the duration for which a request to opt-out from receiving unsolicited
facsimile advertisements remains in effect. Here too the Commission
directly addressed this issue in the Junk Fax Order, and petitioners
provide no new evidence or arguments on reconsideration that lead us to
reconsider this finding. The Commission has considered arguments that
facsimile numbers may change hands over time and that those who make
the opt-out request could, at some point, no longer be the same parties
associated with those telephone numbers. The Commission has concluded,
however, that these concerns are outweighed by the potential burdens
imposed on those recipients that would otherwise be forced to repeat
their opt-out requests to potentially hundreds of facsimile senders.
The Commission disagrees with DMA's contention that opt-out requests
from facsimile recipients should be limited in duration in the same
manner as do-not-call requests. The Commission notes that, unlike the
rules on telephone solicitations, once an EBR has been established for
purposes of allowing the transmission of facsimile advertisements, it
remains in effect indefinitely until the recipient affirmatively opts-
out from receiving future advertisements.
13. In contrast, the Commission's rules limit the duration of an
EBR exemption in the case of telephone solicitations to no longer than
18 months after a purchase or transaction or three months following an
application or inquiry. Thus, the EBR will expire automatically in the
case of telephone solicitations without any further action by the
consumer. In addition, recipients of facsimile advertisements assume
the cost of the paper used, the cost associated with the use of the
facsimile machine, and the costs associated with the time spent
receiving a facsimile advertisement during which the machine cannot be
used by its owner to send or receive other facsimile transmissions. The
Commission believes that protecting recipients from the direct costs
imposed by unwanted facsimile transmissions is best achieved by
declining to limit the duration of an opt-out request.
Regulatory Flexibility Analysis
The Commission notes that no Final Regulatory Flexibility Analysis
is necessary for the document FCC 08-239, as it is not making any
changes to the Commission's rules.
Congressional Review Act
The Commission will send a copy of document FCC 08-239 in a report
to be sent to Congress and the Government Accountability Office
pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).
Ordering Clauses
Pursuant to sections 1-4, 227, and 303(r) of the Communications Act
of 1934, as amended; 47 U.S.C. 151-154, 227, and 303(r); Sec. 1.429 of
the Commission's rules, 47 CFR 1.429; and Sec. 64.1200 of the
Commission's rules, 47 CFR 64.1200, the Order on Reconsideration in CG
Docket Nos. 02-278 and 05-338 is adopted.
Petitions for reconsideration and/or clarification filed by the
Direct Marketing Association and Leventhal Senter and Lerman PLLC in CG
Docket Nos. 02-278 and 05-338 are denied in part and granted in part.
The Commission's Consumer & Governmental Affairs Bureau, Reference
Information Center, shall send a copy of this Order on Reconsideration,
to the Chief Counsel for Advocacy of the Small Business Administration.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. E8-25801 Filed 10-29-08; 8:45 am]
BILLING CODE 6712-01-P
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