Small Entity Compliance Guide - docs.fcc.gov

1 Federal Communications CommissionWashington, 20554 May 13, 2013 DA 13-1086 Small Entity Compliance GuideRules and Regulations Implementing theTelephone Consumer Protection Act of 1991 FCC 12-21CG Docket No. 02-278 This Guide is prepared in accordance with the requirements of Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996. It is intended to help Small entities Small businesses, Small organizations (non-profits), and Small governmental jurisdictions comply with the new rules adopted in the above-referenced FCC rulemaking docket(s). This Guide is not intended to replace the rules and, therefore, final authority rests solely with the rules. Although we have attempted to cover all parts of the rules that might be especially important to Small entities, the coverage may not be exhaustive. This Guide may, perhaps, not apply in a particular situation based upon the circumstances, and the FCC retains the discretion to adopt approaches on a case-by-case basis that may differ from this Guide , where appropriate.

2 Any decisions regarding a particular Small Entity will be based on the statute and regulations. In any civil or administrative action against a Small Entity for a violation of rules, the content of the Small Entity Compliance Guide may be considered as evidence of the reasonableness or appropriateness of proposed fines, penalties or damages. Interested parties are free to file comments regarding this Guide and the appropriateness of its application to a particular situation; the FCC will consider whether the recommendations or interpretations in the Guide are appropriate in that situation. The FCC may decide to revise this Guide without public notice to reflect changes in the FCC s approach to implementing a rule, or to clarify or update the text of the Guide . Direct your comments and recommendations, or calls for further assistance, to the FCC s Consumer Center:1-888-CALL-FCC (1-888-225-5322) TTY: 1-888-TELL-FCC (1-888-835-5322) Fax: OF OF THE AND RECORD-KEEPING REQUIREMENTS.

3 AND POLICIES THAT THE COMMISSION ADOPTED OR OF THE PROCEEDINGIn the2012 TCPA Order(2012 TCPA Order), the Federal Communications Commission ( the Commission ) tooksteps to protect consumers from unwanted telemarketing calls pursuant to the Telephone Consumer Protection Act of 1991 (TCPA).1 The protections the Commissionadopted will protect consumers from unwanted autodialed or prerecorded telemarketing calls, also known as telemarketing robocalls. The Do-Not-Call Implementation Act (DNCIA)requires that the Commission maximize consistencyof its TCPA ruleswith the Federal Trade Commission s (FTC) analogous Telemarketing Sales Rule (TSR).2 The Commission did so in adopting the rules in the 2012 TCPA Order. In the 2012 TCPA Order, the Commission noted its objective to comply with the DNCIA directive that the FCC adopt rules to maximize consistency with the FTC s TSR3and provided that the DNCIA states that the Federal Communications Commission shall consult and coordinate with the Federal Trade Commission to maximize consistency with the rule promulgated by the Federal Trade Commission.

4 4 Agency coordination is necessary because both agencies have jurisdiction over telemarketing. The FCC s jurisdiction, however, covers all telemarketers, while the FTC s jurisdiction excludes common carriers, banks and other financial institutions, insurance companies, airlines, and intrastate telemarketers. With its action in the 2012 TCPA Order, the FCC now maximizes consistency of its analogous rules with the FTC s TSR. The newly adopted rules in the 2012 TCPA Order offer consumers greater protection from intrusive telemarketing calls and harmonize the FCC srules with those of the FTC s in a way that reduces industry confusion about telemarketers obligations and that does not increase Compliance burdens for most 1 See Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Docket No.

5 02-278, 27 FCC Rcd 1830, 1831, para. 1 (2012) (2012 TCPA Order); see generally 47 227; 47 TCPA Order, 27 FCC Rcd at 1831, para. 2 (citingDo-Not-Call Implementation Act,Public Law No. 108-10, 117 Stat. 557 (2003) (DNCIA), codified at 15 6101 (stating in Section 3, in relevant part, that the Federal Communications Commission shall consult and coordinate with the Federal Trade Commission to maximize consistency with the rule promulgated by the Federal Trade Commission (16 (b)).32012 TCPA Order, 27 FCC Rcd at 1836, para. , 117 Stat. 557 3. See generally Report To Congress Pursuant To The Do Not Call Implementation Act On Regulatory Coordination In Federal Telemarketing Laws Submitted By The Federal Trade Commission, Report to Congress, 2003 WL 22120161 (Sept. 2003) (available at ) (2003 FTC Report to Congress).52012 TCPA Order, 27 FCC Rcd at 1831, para.))

6 AND RECORD-KEEPING REQUIREMENTS Express Written Consent In the 2012 TCPA Order, the Commission concluded that a consumer s written consent to receive a prerecorded telemarketing call to a residential line or receive a prerecorded or autodialed telemarketing call to a wireless numbermust be signed and be sufficient to show that the consumer: (1) received clear and conspicuous disclosure of the consequences of providing the requestedconsent, , that the consumer is willing toreceive future calls that deliver prerecorded messages by or on behalf of a specific seller; and (2) having received this information, agrees unambiguously to receive such calls at a telephone number the consumer addition, the written agreement must be obtained without requiring, directly or indirectly, that the agreement be executed as a condition of purchasing any good or service.

7 7 Finally, should any question about the consent arise, the seller will bear the burden of demonstrating that a clear and conspicuous disclosure was provided and that unambiguous consent was Commission also concluded that consent obtained in Compliance with the E-SIGN Act will satisfy the requirements of its revised rule, including permission obtained via an email, website form, text message, telephone keypress, or voice Allowing documentation of written consent under the E-SIGN Act will minimize the costs and burdens of acquiring prior express written consent for autodialed or prerecorded telemarketing calls while protecting the privacy interests of with the FCC s TCPA written consent rules for telemarketing calls:First, a Small business planning to make telemarketing calls must determine whether its telemarketing calls will be placed to residential lines or to wireless telephone numbers.

8 In that connection, the Small business will need to confirm the type of telephone numbers it will be dialing. Avariety of sources exist to assist Small businesses and telemarketers in determining which numbers are assigned to wireless carriers. For example, NeuStar, as the North American Numbering Plan Administrator, the National Pooling Administrator, and the LNP Administrator, makes information available that can assist in identifying numbers assigned to wireless carriers. Also, other commercial enterprises, such as Telcordia, the owner-operator of the Local Exchange Routing Guide (LERG), maintain information that can assist telemarketers in identifying numbers assigned to wireless carriers. Next, if the telemarketing calls will be placed to residential lines only, the Small business must determine whether these telemarketing calls will be prerecorded. If these telemarketing calls to residential lines will be prerecorded, then the FCC s TCPA rules require that the Small business secure prior express written consent to lawfully place such calls.

9 The TCPA consent rules do not apply to autodialed calls to residential lines that are not prerecorded. However, the Small business will have to comply with the Do-Not-Call rules if its calls are live solicitation calls. In addition, in light of the privacy protections afforded under the Health Insurance Portability and 6 See 2012 TCPA Order, 27 FCC Rcd at 1844, para 33. at 1844, para. Act of 1996 (HIPAA), the Commission exempted from its consent, identification, time-of-day, opt-out, and abandoned call requirements all prerecorded health care-related calls to residential lines that are subject to So, if the Small business determines that its telemarketing calls will be placed to residential lines only and the calls will be prerecorded, the Small business must determine whether these calls will be health care-related calls subject to HIPAA.

10 The HIPAA is codified at 1320 et seq. If theses calls are health care-related calls subject to HIPAA, then it is the HIPAA rules that will govern instead of TCPA rules. If the Small business determines that its prerecorded, telemarketing calls to residential lines are not health care-related calls subject to HIPAA, then the TCPA rules will the other hand, if the Small business determines that its telemarketing calls will be placed to wireless telephone numbers and these telemarketing calls will be prerecorded or will utilizeautodialed technology, the Small business must secure prior express written consent of the called partiesto lawfully place such calls. Again, if the Small business determines that it intends to place live solicitation calls to wireless numbers, it must comply with the Do-Not-Call FCC does not require a particular form as evidence of prior express written consent for prerecorded telemarketing calls to residential lines or prerecorded or autodialed telemarketing calls to wireless telephone numbers.