Goto Section: 64.1195 | 64.1201 | Table of Contents
FCC 64.1200
Revised as of October 1, 2006
Goto Year:2005 |
2007
Sec. 64.1200 Delivery restrictions.
(a) No person or entity may: (1) Initiate any telephone call (other than a
call made for emergency purposes or made with the prior express consent of
the called party) using an automatic telephone dialing system or an
artificial or prerecorded voice;
(i) To any emergency telephone line, including any 911 line and any
emergency line of a hospital, medical physician or service office, health
care facility, poison control center, or fire protection or law enforcement
agency;
(ii) To the telephone line of any guest room or patient room of a hospital,
health care facility, elderly home, or similar establishment; or
(iii) To any telephone number assigned to a paging service, cellular
telephone service, specialized mobile radio service, or other radio common
carrier service, or any service for which the called party is charged for
the call.
(iv) A person will not be liable for violating the prohibition in paragraph
(a)(1)(iii) of this section when the call is placed to a wireless number
that has been ported from wireline service and such call is a voice call;
not knowingly made to a wireless number; and made within 15 days of the
porting of the number from wireline to wireless service, provided the number
is not already on the national do-not-call registry or caller's
company-specific do-not-call list.
(2) Initiate any telephone call to any residential line using an artificial
or prerecorded voice to deliver a message without the prior express consent
of the called party, unless the call;
(i) Is made for emergency purposes;
(ii) Is not made for a commercial purpose;
(iii) Is made for a commercial purpose but does not include or introduce an
unsolicited advertisement or constitute a telephone solicitation;
(iv) Is made to any person with whom the caller has an established business
relationship at the time the call is made; or
(v) Is made by or on behalf of a tax-exempt nonprofit organization.
(3) Use a telephone facsimile machine, computer, or other device to send an
unsolicited advertisement to a telephone facsimile machine, unless—
(i) The unsolicited advertisement is from a sender with an established
business relationship, as defined in paragraph (f)(5) of this section, with
the recipient; and
(ii) The sender obtained the number of the telephone facsimile machine
through—
(A) The voluntary communication of such number by the recipient directly to
the sender, within the context of such established business relationship; or
(B) A directory, advertisement, or site on the Internet to which the
recipient voluntarily agreed to make available its facsimile number for
public distribution. If a sender obtains the facsimile number from the
recipient's own directory, advertisement, or Internet site, it will be
presumed that the number was voluntarily made available for public
distribution, unless such materials explicitly note that unsolicited
advertisements are not accepted at the specified facsimile number. If a
sender obtains the facsimile number from other sources, the sender must take
reasonable steps to verify that the recipient agreed to make the number
available for public distribution.
(C) This clause shall not apply in the case of an unsolicited advertisement
that is sent based on an established business relationship with the
recipient that was in existence before July 9, 2005 if the sender also
possessed the facsimile machine number of the recipient before July 9, 2005.
There shall be a rebuttable presumption that if a valid established business
relationship was formed prior to July 9, 2005, the sender possessed the
facsimile number prior to such date as well; and
(iii) The advertisement contains a notice that informs the recipient of the
ability and means to avoid future unsolicited advertisements. A notice
contained in an advertisement complies with the requirements under this
paragraph only if—
(A) The notice is clear and conspicuous and on the first page of the
advertisement;
(B) The notice states that the recipient may make a request to the sender of
the advertisement not to send any future advertisements to a telephone
facsimile machine or machines and that failure to comply, within 30 days,
with such a request meeting the requirements under paragraph (a)(3)(v) of
this section is unlawful;
(C) The notice sets forth the requirements for an opt-out request under
paragraph (a)(3)(v) of this section;
(D) The notice includes—
(1) A domestic contact telephone number and facsimile machine number for the
recipient to transmit such a request to the sender; and
(2) If neither the required telephone number nor facsimile machine number is
a toll-free number, a separate cost-free mechanism including a Web site
address or e-mail address, for a recipient to transmit a request pursuant to
such notice to the sender of the advertisement. A local telephone number
also shall constitute a cost-free mechanism so long as recipients are local
and will not incur any long distance or other separate charges for calls
made to such number; and
(E) The telephone and facsimile numbers and cost-free mechanism identified
in the notice must permit an individual or business to make an opt-out
request 24 hours a day, 7 days a week.
(iv) A facsimile advertisement that is sent to a recipient that has provided
prior express invitation or permission to the sender must include an opt-out
notice that complies with the requirements in paragraph (a)(3)(iii) of this
section.
(v) A request not to send future unsolicited advertisements to a telephone
facsimile machine complies with the requirements under this subparagraph
only if—
(A) The request identifies the telephone number or numbers of the telephone
facsimile machine or machines to which the request relates;
(B) The request is made to the telephone number, facsimile number, Web site
address or e-mail address identified in the sender's facsimile
advertisement; and
(C) The person making the request has not, subsequent to such request,
provided express invitation or permission to the sender, in writing or
otherwise, to send such advertisements to such person at such telephone
facsimile machine.
(vi) A sender that receives a request not to send future unsolicited
advertisements that complies with paragraph (a)(3)(v) of this section must
honor that request within the shortest reasonable time from the date of such
request, not to exceed 30 days, and is prohibited from sending unsolicited
advertisements to the recipient unless the recipient subsequently provides
prior express invitation or permission to the sender. The recipient's
opt-out request terminates the established business relationship exemption
for purposes of sending future unsolicited advertisements. If such requests
are recorded or maintained by a party other than the sender on whose behalf
the unsolicited advertisement is sent, the sender will be liable for any
failures to honor the opt-out request.
(vii) A facsimile broadcaster will be liable for violations of paragraph
(a)(3) of this section, including the inclusion of opt-out notices on
unsolicited advertisements, if it demonstrates a high degree of involvement
in, or actual notice of, the unlawful activity and fails to take steps to
prevent such facsimile transmissions.
(4) Use an automatic telephone dialing system in such a way that two or more
telephone lines of a multi-line business are engaged simultaneously.
(5) Disconnect an unanswered telemarketing call prior to at least 15 seconds
or four (4) rings.
(6) Abandon more than three percent of all telemarketing calls that are
answered live by a person, or measured over a 30-day period. A call is
“abandoned” if it is not connected to a live sales representative within two
(2) seconds of the called person's completed greeting. Whenever a sales
representative is not available to speak with the person answering the call,
that person must receive, within two (2) seconds after the called person's
completed greeting, a prerecorded identification message that states only
the name and telephone number of the business, entity, or individual on
whose behalf the call was placed, and that the call was for “telemarketing
purposes.” The telephone number so provided must permit any individual to
make a do-not-call request during regular business hours for the duration of
the telemarketing campaign. The telephone number may not be a 900 number or
any other number for which charges exceed local or long distance
transmission charges. The seller or telemarketer must maintain records
establishing compliance with paragraph (a)(6) of this section.
(i) A call for telemarketing purposes that delivers an artificial or
prerecorded voice message to a residential telephone line that is assigned
to a person who either has granted prior express consent for the call to be
made or has an established business relationship with the caller shall not
be considered an abandoned call if the message begins within two (2) seconds
of the called person's completed greeting.
(ii) Calls made by or on behalf of tax-exempt nonprofit organizations are
not covered by paragraph (a)(6) of this section.
(7) Use any technology to dial any telephone number for the purpose of
determining whether the line is a facsimile or voice line.
(b) All artificial or prerecorded telephone messages shall:
(1) At the beginning of the message, state clearly the identity of the
business, individual, or other entity that is responsible for initiating the
call. If a business is responsible for initiating the call, the name under
which the entity is registered to conduct business with the State
Corporation Commission (or comparable regulatory authority) must be stated,
and
(2) During or after the message, state clearly the telephone number (other
than that of the autodialer or prerecorded message player that placed the
call) of such business, other entity, or individual. The telephone number
provided may not be a 900 number or any other number for which charges
exceed local or long distance transmission charges. For telemarketing
messages to residential telephone subscribers, such telephone number must
permit any individual to make a do-not-call request during regular business
hours for the duration of the telemarketing campaign.
(c) No person or entity shall initiate any telephone solicitation, as
defined in paragraph (f)(9) of this section, to:
(1) Any residential telephone subscriber before the hour of 8 a.m. or after
9 p.m. (local time at the called party's location), or
(2) A residential telephone subscriber who has registered his or her
telephone number on the national do-not-call registry of persons who do not
wish to receive telephone solicitations that is maintained by the federal
government. Such do-not-call registrations must be honored for a period of 5
years. Any person or entity making telephone solicitations (or on whose
behalf telephone solicitations are made) will not be liable for violating
this requirement if:
(i) It can demonstrate that the violation is the result of error and that as
part of its routine business practice, it meets the following standards:
(A) Written procedures. It has established and implemented written
procedures to comply with the national do-not-call rules;
(B) Training of personnel. It has trained its personnel, and any entity
assisting in its compliance, in procedures established pursuant to the
national do-not-call rules;
(C) Recording. It has maintained and recorded a list of telephone numbers
that the seller may not contact;
(D) Accessing the national do-not-call database. It uses a process to
prevent telephone solicitations to any telephone number on any list
established pursuant to the do-not-call rules, employing a version of the
national do-not-call registry obtained from the administrator of the
registry no more than 31 days prior to the date any call is made, and
maintains records documenting this process.
Note to paragraph (c)(2)(i)(D): The requirement in paragraph
64.1200(c)(2)(i)(D) for persons or entities to employ a version of the
national do-not-call registry obtained from the administrator no more than
31 days prior to the date any call is made is effective January 1, 2005.
Until January 1, 2005, persons or entities must continue to employ a version
of the registry obtained from the administrator of the registry no more than
three months prior to the date any call is made.
(E) Purchasing the national do-not-call database. It uses a process to
ensure that it does not sell, rent, lease, purchase or use the national
do-not-call database, or any part thereof, for any purpose except compliance
with this section and any such state or federal law to prevent telephone
solicitations to telephone numbers registered on the national database. It
purchases access to the relevant do-not-call data from the administrator of
the national database and does not participate in any arrangement to share
the cost of accessing the national database, including any arrangement with
telemarketers who may not divide the costs to access the national database
among various client sellers; or
(ii) It has obtained the subscriber's prior express invitation or
permission. Such permission must be evidenced by a signed, written agreement
between the consumer and seller which states that the consumer agrees to be
contacted by this seller and includes the telephone number to which the
calls may be placed; or
(iii) The telemarketer making the call has a personal relationship with the
recipient of the call.
(d) No person or entity shall initiate any call for telemarketing purposes
to a residential telephone subscriber unless such person or entity has
instituted procedures for maintaining a list of persons who request not to
receive telemarketing calls made by or on behalf of that person or entity.
The procedures instituted must meet the following minimum standards:
(1) Written policy. Persons or entities making calls for telemarketing
purposes must have a written policy, available upon demand, for maintaining
a do-not-call list.
(2) Training of personnel engaged in telemarketing. Personnel engaged in any
aspect of telemarketing must be informed and trained in the existence and
use of the do-not-call list.
(3) Recording, disclosure of do-not-call requests. If a person or entity
making a call for telemarketing purposes (or on whose behalf such a call is
made) receives a request from a residential telephone subscriber not to
receive calls from that person or entity, the person or entity must record
the request and place the subscriber's name, if provided, and telephone
number on the do-not-call list at the time the request is made. Persons or
entities making calls for telemarketing purposes (or on whose behalf such
calls are made) must honor a residential subscriber's do-not-call request
within a reasonable time from the date such request is made. This period may
not exceed thirty days from the date of such request. If such requests are
recorded or maintained by a party other than the person or entity on whose
behalf the telemarketing call is made, the person or entity on whose behalf
the telemarketing call is made will be liable for any failures to honor the
do-not-call request. A person or entity making a call for telemarketing
purposes must obtain a consumer's prior express permission to share or
forward the consumer's request not to be called to a party other than the
person or entity on whose behalf a telemarketing call is made or an
affiliated entity.
(4) Identification of sellers and telemarketers. A person or entity making a
call for telemarketing purposes must provide the called party with the name
of the individual caller, the name of the person or entity on whose behalf
the call is being made, and a telephone number or address at which the
person or entity may be contacted. The telephone number provided may not be
a 900 number or any other number for which charges exceed local or long
distance transmission charges.
(5) Affiliated persons or entities. In the absence of a specific request by
the subscriber to the contrary, a residential subscriber's do-not-call
request shall apply to the particular business entity making the call (or on
whose behalf a call is made), and will not apply to affiliated entities
unless the consumer reasonably would expect them to be included given the
identification of the caller and the product being advertised.
(6) Maintenance of do-not-call lists. A person or entity making calls for
telemarketing purposes must maintain a record of a consumer's request not to
receive further telemarketing calls. A do-not-call request must be honored
for 5 years from the time the request is made.
(7) Tax-exempt nonprofit organizations are not required to comply with
64.1200(d).
(e) The rules set forth in paragraph (c) and (d) of this section are
applicable to any person or entity making telephone solicitations or
telemarketing calls to wireless telephone numbers to the extent described in
the Commission's Report and Order, CG Docket No. 02–278, FCC 03–153, “Rules
and Regulations Implementing the Telephone Consumer Protection Act of
1991.”
(f) As used in this section: (1) The terms automatic telephone dialing
system and autodialer mean equipment which has the capacity to store or
produce telephone numbers to be called using a random or sequential number
generator and to dial such numbers.
(2) The term clear and conspicuous for purposes of paragraph (a)(3)(iii)(A)
of this section means a notice that would be apparent to the reasonable
consumer, separate and distinguishable from the advertising copy or other
disclosures, and placed at either the top or bottom of the facsimile.
(3) The term emergency purposes means calls made necessary in any situation
affecting the health and safety of consumers.
(4) The term established business relationship for purposes of telephone
solicitations means a prior or existing relationship formed by a voluntary
two-way communication between a person or entity and a residential
subscriber with or without an exchange of consideration, on the basis of the
subscriber's purchase or transaction with the entity within the eighteen
(18) months immediately preceding the date of the telephone call or on the
basis of the subscriber's inquiry or application regarding products or
services offered by the entity within the three months immediately preceding
the date of the call, which relationship has not been previously terminated
by either party.
(i) The subscriber's seller-specific do-not-call request, as set forth in
paragraph (d)(3) of this section, terminates an established business
relationship for purposes of telemarketing and telephone solicitation even
if the subscriber continues to do business with the seller.
(ii) The subscriber's established business relationship with a particular
business entity does not extend to affiliated entities unless the subscriber
would reasonably expect them to be included given the nature and type of
goods or services offered by the affiliate and the identity of the
affiliate.
(5) The term established business relationship for purposes of paragraph
(a)(3) of this section on the sending of facsimile advertisements means a
prior or existing relationship formed by a voluntary two-way communication
between a person or entity and a business or residential subscriber with or
without an exchange of consideration, on the basis of an inquiry,
application, purchase or transaction by the business or residential
subscriber regarding products or services offered by such person or entity,
which relationship has not been previously terminated by either party.
(6) The term facsimile broadcaster means a person or entity that transmits
messages to telephone facsimile machines on behalf of another person or
entity for a fee.
(7) The term seller means the person or entity on whose behalf a telephone
call or message is initiated for the purpose of encouraging the purchase or
rental of, or investment in, property, goods, or services, which is
transmitted to any person.
(8) The term sender for purposes of paragraph (a)(3) of this section means
the person or entity on whose behalf a facsimile unsolicited advertisement
is sent or whose goods or services are advertised or promoted in the
unsolicited advertisement.
(9) The term telemarketer means the person or entity that initiates a
telephone call or message for the purpose of encouraging the purchase or
rental of, or investment in, property, goods, or services, which is
transmitted to any person.
(10) The term telemarketing means the initiation of a telephone call or
message for the purpose of encouraging the purchase or rental of, or
investment in, property, goods, or services, which is transmitted to any
person.
(11) The term telephone facsimile machine means equipment which has the
capacity to transcribe text or images, or both, from paper into an
electronic signal and to transmit that signal over a regular telephone line,
or to transcribe text or images (or both) from an electronic signal received
over a regular telephone line onto paper.
(12) The term telephone solicitation means the initiation of a telephone
call or message for the purpose of encouraging the purchase or rental of, or
investment in, property, goods, or services, which is transmitted to any
person, but such term does not include a call or message:
(i) To any person with that person's prior express invitation or permission;
(ii) To any person with whom the caller has an established business
relationship; or
(iii) By or on behalf of a tax-exempt nonprofit organization.
(13) The term unsolicited advertisement means any material advertising the
commercial availability or quality of any property, goods, or services which
is transmitted to any person without that person's prior express invitation
or permission, in writing or otherwise.
(14) The term personal relationship means any family member, friend, or
acquaintance of the telemarketer making the call.
(g) Beginning January 1, 2004, common carriers shall:
(1) When providing local exchange service, provide an annual notice, via an
insert in the subscriber's bill, of the right to give or revoke a
notification of an objection to receiving telephone solicitations pursuant
to the national do-not-call database maintained by the federal government
and the methods by which such rights may be exercised by the subscriber. The
notice must be clear and conspicuous and include, at a minimum, the Internet
address and toll-free number that residential telephone subscribers may use
to register on the national database.
(2) When providing service to any person or entity for the purpose of making
telephone solicitations, make a one-time notification to such person or
entity of the national do-not-call requirements, including, at a minimum,
citation to 47 CFR 64.1200 and 16 CFR 310. Failure to receive such
notification will not serve as a defense to any person or entity making
telephone solicitations from violations of this section.
(h) The administrator of the national do-not-call registry that is
maintained by the federal government shall make the telephone numbers in the
database available to the States so that a State may use the telephone
numbers that relate to such State as part of any database, list or listing
system maintained by such State for the regulation of telephone
solicitations.
[ 68 FR 44177 , July 25, 2003, as amended at 68 FR 59131 , Oct. 14, 2003; 69 FR 60316 , Oct. 8, 2004; 70 FR 19337 , Apr. 13, 2005; 71 FR 25977 , May 3, 2006;
71 FR 56893 , Sept. 28, 2006]
Goto Section: 64.1195 | 64.1201
Goto Year: 2005 |
2007
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