Recording Law :: Modem Spy

Excerpts from FCC-92-443
Excerpts from an FCC Report and Order titled Rules and regulations implementing the Telephone Consumer Protection Act of 1991 (CC Docket No. 92-90), adopted July 26, 1995.
Background

3. In adopting rules to implement the TCPA, the Commission noted Congress' instruction that "[i]ndividuals' 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." Congress pointed out that in 1990, more than 30,000 telemarketing firms, employing more than 18 million Americans, generated more than $400 billion in sales. But because unrestricted telemarketing can be an invasion of consumer privacy, and even a risk to public safety, Congress found that a federal law is necessary to control telemarketing practices.

The figures we found in Section 2 of the Act actually stated that more than 30,000 businesses use over 300,000 solicitors to call more than 18 million Americans every day. It would to require a broad interpretation to call all these businesses ``telemarketing firms'', and very broad interpretation to consider receiving a telemarketing call as employment. (Although if 14% of the population really were dedicated to making telemarketing calls, answering the phone might well become a full-time job.) We assume that the FCC's statement above was based on some simple confusion.

This order

4. ...This order addresses arguments made by parties seeking reconsideration or clarification of various matters addressed in the Report and Order. It seeks to balance the concern that consumers' privacy be protected with the imperative that telemarketing practices not be unreasonably hindered.

The Direct Marketing Association's request

6. ...The DMA and the NAA contend that telemarketers should not be required to give a telephone number or address during a telephone solicitation... DMA's concern over telemarketers' ability to comply with the identification requirement in instances in which the call is terminated by the resident prior to completion of the identification announcement is not persuasive. As discussed above, the telemarketer bears the burden of ensuring that identification is given. We recognize that a resident's hang-up on a solicitation call could thwart telemarketer identification...

Subscriber identification

8. Subscriber Identification. Commission rules require that telemarketers record do-not- call requests by placing the subscriber's name and telephone number on the "do-not-call list." NAA states that many residents do not wish to give their names when receiving telephone solicitations. It requests that in such instances telemarketers be allowed to record only a phone number and to make a notation when a resident does not wish to give a name to a telemarketer.

9. Section 64.1200(e)(2)(iii) contemplates that telemarketers request the called party's name when making a do-not-call notation. The rule does not require the called party to provide a name. Interpreting the rule more narrowly would defeat the objective of protecting consumer privacy. Therefore, we do not believe it necessary to modify the requirement that solicitors record both a name and number. Telemarketers will not be in violation of the rule so long as they request the called party's name. Indeed, we expect telemarketers to respect the privacy of those who specifically refuse to give a name by simply making a notation to that effect. Nevertheless, as a general rule telemarketers can avoid duplication or confusion in maintaining do-not-call lists if each telephone number is associated with a name to ensure accuracy. Recording callers' names will assist in proving violations of the TCPA, and we note that no consumers, or representative of consumers, shares NAA's concerns in the record before us.

The ten year rule

15. Decision. We will modify the requirement that a do-not-call request be honored indefinitely, to require that the request be honored for a period of 10 years. Our rules should reflect the fact that residential telephone numbers are recycled. We believe it is reasonable to expect telemarketers to honor do-not-call requests for a period of 10 years. While we acknowledge that a 10-year requirement has not been suggested by any of the parties, we believe that a five-year period, as proposed by DMA and Olan Mills, would not adequately account for the privacy needs of residential telephone subscribers. We also appreciate the concerns of Congressman Markey, but believe the modified 10-year retention requirement will best preserve the careful balance we seek to maintain between residential subscriber privacy and reasonable telemarketing practices. We will monitor the effectiveness of the 10-year retention requirement and readdress the issue if necessary at a later date. Our purpose in prescribing do-not-call lists is to ensure that a consumer's request not to be called is respected. A call made by a telemarketer solely to determine whether a subscriber wishes to receive a telephone solicitation is, in effect, a solicitation from that telemarketer, and accordingly would violate that subscriber's do-not-call request.

Not more than nominal costs

38. Identification requirements - Telephone number. We reiterate our intent that residential subscribers may not be required to pay for procedures to protect them from unwanted solicitations. Numbers provided for identification purposes in telephone solicitations may not be numbers that require the recipient of a solicitation to incur more than nominal costs for making a do-not-call request (i.e., for which charges exceed costs for transmission of local or ordinary station-to-station long distance calls). In addition to prohibiting charges to protect residential privacy, the TCPA and our rules prohibit calls that impose costs on the called party (e.g., calls to paging and cellular numbers, facsimile advertisements). We now modify the language of Sections 64.1200(e)(2)(iv) and 68.318(c)(3) of the Commission's rules to ensure that the intent of the TCPA and our rules is not thwarted.

See also:
Table of contents.
Excerpts from FCC-92-443
Restrictions on telephone solicitation