Federal Register: April 3, 2003 (Volume 68, Number 64)
DOCID: FR Doc 03-7932
FEDERAL TRADE COMMISSION
Federal Trade Commission
CFR Citation: 16 CFR Part 310
NOTICE: PROPOSED RULES
ACTION: Telemarketing sales rule:
DOCUMENT ACTION: Revised notice of proposed rulemaking and request for public comment.
Telemarketing Sales Rule Fees
DATES: Written comments will be accepted until May 1, 2003. Time is of the essence to promulgate the proposed fees. Thus, the Commission does not anticipate providing any extension to this comment period.
The Federal Trade Commission (the ``Commission'' or ``FTC'') is issuing a Revised Notice of Proposed Rulemaking (``Revised Fee NPRM'') to amend the FTC's Telemarketing Sales Rule (``TSR'') by adding a new section that would impose fees on entities accessing the national donotcall registry. This Revised Fee NPRM invites written comments on the issues raised by the proposed changes, and seeks answers to the specific questions set forth in Section X.
The Commission is also announcing that full compliance with Sec. 310.4(b)(1)(iii)(B), the ``donotcall'' registry provision of the Amended TSR, will be required on October 1, 2003.
National do-not-call registry; user fees,
On January 30, 2002, the FTC published a Notice of Proposed
Rulemaking to amend the FTC's TSR and to request public comment on the
proposed changes. 67 FR 4492 (Jan. 30, 2002) (``the Rule NPRM''). Among
other provisions, the Rule NPRM proposed to establish a national do
notcall registry, to be maintained by the FTC, that would permit
consumers who prefer not to receive telemarketing calls to contact one
centralized registry to effectuate this preference. On May 29, 2002,
the FTC published another Notice of Proposed Rulemaking to further
amend the TSR by imposing user fees on sellers and telemarketers for
their access to the proposed national donotcall registry. 67 FR 37362
(May 29, 2002) (``the User Fee NPRM''). In issuing the User Fee NPRM,
the Commission was guided by the Independent Offices Appropriations Act
of 1952, 31 U.S.C. 9701, and the Office of Management and Budget
Circular No. A25. The Commission received 34 comments submitted in response to the User Fee NPRM.\1\
\1\ A list of commenters to the User Fee NPRM and the Rule NPRM, and the acronyms used to identify those entities, was included in Attachment B to the Statement of Basis and Purpose for the Amendments to the TSR, 68 FR 467778 (Jan. 29, 2003) (``TSR SBP''). Comments submitted in response to the User Fee NPRM will be cited in this Notice as ``[Name of Commenter]User Fee at [page number].'' Comments submitted in response to the Rule NPRM will be cited as ``[Name of commenter]Rule NPRM at [page number].''
The Commission issued final amendments to the TSR on December 18, 2002. 68 FR 4580 (Jan. 29, 2003). Among the changes made to the TSR, the Commission adopted the proposal to establish a national donotcall registry, permitting consumers to register, via either a tollfree telephone number or the Internet, their preference not to receive telemarketing calls. When full compliance with the donotcall provisions of the Amended TSR is required, on October 1, 2003, telemarketers will be required to refrain from calling consumers who have placed their numbers on this registry. 16 CFR 310.4(b)(1)(iii)(B). To ensure compliance with this requirement, telemarketers will be required to access the national registry at least once every three months in order to remove from their telemarketing lists those consumers who have placed their telephone numbers on the national registry. 16 CFR 310.4(b)(3)(iv). When it issued the Amended TSR, the Commission reserved its decision on the issues raised in the User Fee NPRM, stating that it would issue a revised Notice of Proposed Rulemaking to seek further comment on the issues raised in that proceeding. See 68 FR 4580, 4640 n. 716.
On February 20, 2003, the President signed into law the
Consolidated Appropriations Resolution of 2003, Public Law 1087 (2003)
(``the Appropriations Act''), which appropriated funds for the
operation of the FTC during fiscal year 2003. In the same Act, Congress
also authorized the agency to collect fees sufficient to implement and
enforce the donotcall provisions of the TSR. Congress further
estimated the costs for fiscal year 2003 at $18,100,000. Id. at
Division B, Title II. See also The DoNotCall Implementation Act,
Public Law 10810 (2003) (``the Implementation Act'') at section 2.
Pursuant to the Appropriations Act and the Implementation Act, as well
as the Telemarketing Fraud and Abuse Prevention Act, 15 U.S.C. 610108
(``the Telemarketing Act''), the FTC is issuing this Revised Fee NPRM.\2\
\2\ Many commenters to the User Fee NPRM claimed that the FTC lacked the authority to impose a user fee based on the Independent Offices Appropriations Act of 1952. See, e.g., ABAUser Fee at 13; AmeriquestUser Fee at 15; DiscoverUser Fee at 14; DMAUser Fee at 17 (``If the FTC wants to collect fees for its regulation of nondeceptive and nonabusive telemarketing, it must obtain approval from Congress to do so''). DMA's comments were supported by ERA, PMA, and MPA. Other commenters suggested that consumers should be charged the fee necessary to implement the national registry. See, e.g., ARDAUser Fee at 14; ATAUser Fee at 36; Idaho RealtorsUser Fee at 12; InfocisionUser Fee at 4; ITCUser Fee at 35; MBNAUser Fee at 3; NEMAUser Fee at 23; SBCUser Fee at 25. But see NASUCA User Fee at 2; NCLUser Fee at 1; TRAUser Fee at 3. Still other commenters suggested that the User Fee NPRM was premature, and that they had insufficient information available to properly comment on the proposal. See, e.g., CBAUser Fee at 1; HouseholdUser Fee at 3; MasterCardUser Fee at 13. With the passage of the Appropriations Act, the Implementation Act, and the Amended TSR, these comments are moot.
II. Access to the DoNotCall Registry
A. Entities That Are Allowed Access
In the User Fee NPRM, the Commission proposed limiting access to
the national donotcall registry to telemarketers in order to maintain
the security of the information included in the registry.\3\ In
addition, because the proposed amendments to the TSR prohibited the use
of information in the national registry for any purpose other than
compliance with the donotcall provisions of the Proposed Rule, the
Commission believed that only telemarketers would need to access that information.
\3\ User Fee NPRM at 37365 and proposed Sec. 310.9(c).
A number of commenters stated that broader access to the national
registry is necessary. In particular, some commenters suggested that
sellers \4\ should be allowed to gain access to evaluate telemarketing
campaigns run on their behalf and to evaluate telemarketers' Rule
compliance.\5\ Others suggested that ``outside compliance firms'' and
``list scrubbers'' should be given access, since they provide a
valuable service for telemarketers.\6\ Still others stated that
telemarketers and sellers who are exempt from the FTC's jurisdiction
would have no access to the list even if they want to voluntarily
suppress calls. These commenters suggested that the FTC make the
registry available to any entity provided that the information in the
registry is used solely for the purpose of preventing telephone calls to numbers on that list.\7\
\4\ The Amended TSR defines a ``seller'' as ``any person who, in connection with a telemarketing transaction, provides, offers to provide, or arranges for others to provide goods or services to the customer in exchange for consideration.'' 16 CFR 310.2(z).
\5\ See CBAUser Fee at 4; DiscoverUser Fee at 45; MasterCard User Fee at 5.
\6\ See ARDAUser Fee at 5; NEMAUser Fee at 4.
\7\ See DiscoverUser Fee at 45; HouseholdUser Fee at 56; MBNAUser Fee at 3.
The Commission agrees that broader access to the national donot
call registry may be necessary to effectuate more fully the primary
purpose of the donotcall regulations; namely, to enable consumers to
stop unwanted telemarketing calls. Limiting access only to
telemarketers, as defined by the Amended TSR, would prevent those
entities that are exempt from the FTC's jurisdiction, but that want to
scrub their calling lists as a matter of customer service, from
obtaining the information necessary to do so. Such limited access also
may prevent sellers from engaging in thorough Rule compliance, and may
unnecessarily hinder the services provided to the telemarketing
industry by list brokers and others. At the same time, the Commission
agrees with the comment of NASUCA that the information in the national
registry should be used for no other purpose than to stop unwanted
telemarketing calls.\8\ As a result, the Commission now proposes, at
Section 310.8(e), to allow access to the national registry by
telemarketers, sellers, others engaged in or causing others to engage
in telephone calls for commercial purposes, and service providers
acting on behalf of such persons.\9\ Prior to gaining such access, a
person would be required to certify, under penalty of law, that the
person is accessing the registry solely to comply with the provisions
of this Rule or to otherwise prevent calls to telephone numbers on the registry.
\8\ See NASUCAUser Fee at 78.
\9\ Proposed Section 310.8(e) also permits access to the national registry by any government agency that has the authority to enforce a federal or state donotcall statute or regulation. Such agencies will access information in the national registry through a dedicated, secure website available only to them.
B. Entities That Are Required To Pay the Fee
The User Fee NPRM proposed requiring telemarketers who gained
access to the national donotcall registry to pay for that access. In
addition, the User Fee NPRM proposed requiring telemarketers who engage
in telemarketing on behalf of sellers or other telemarketers, or who
use the information included in the registry to remove telephone numbers from the telemarketing lists of sellers and other
telemarketers, to pay a fee for each such seller or telemarketer.\10\ \10\ User Fee NPRM at 37363 and proposed Sec. 310.9(a).
A number of commenters criticized this provision, claiming that it
would result in sellers, telemarketers, and list brokers paying the
proposed user fee multiple times for the same information.\11\ Some
commenters pointed out that many sellers use more than one telemarketer
in any given year, and such sellers would be required to purchase
access to the national registry many times over.\12\ As one commenter
stated, a ``seller who uses only one telemarketer all year for
nationwide telemarketing campaigns should not be more favorably treated
than another who uses several telemarketers to conduct similar
campaigns.''\13\ Other commenters maintained that telemarketers calling
on behalf of multiple clients ``should pay only one user fee and not a
fee for every client on whose behalf they perform this service.''\14\
On the other hand, NCL commented that if list brokers are allowed
access to the registry, their payments should be based upon the number
of clients they represent. ``Charging them only for the total number of
area codes they obtain would be unfair to telemarketers that do not use
list brokers and would undermine the economic viability of the registry.''\15\
\11\ DMA also maintained that the payment structure proposed in the User Fee NPRM may violate the Paperwork Reduction Act, 44 U.S.C. 3506 et seq. (``PRA''), which prohibits federal agencies from restricting or regulating the use, resale, or redissemination of public information by the public, and Section 105 of the Copyright Act, 17 U.S.C. 105, which expressly bars the federal government from copyrighting its own works. The Commission disagrees with the DMA's interpretations of these laws. First, the registry list of telephone numbers of consumers who express a preference not to be called by telemarketers is not ``public information,'' as that term is used in the PRA. In fact, dissemination of the list to the public is a violation of the Amended TSR. See 16 CFR 310.4(b)(2). Second, the Commission is in no way attempting to copyright the information contained in the national registry.
\12\ See, e.g., MasterCardUser Fee at 5; CBAUser Fee at 4; DiscoverUser Fee at 4; HouseholdUser Fee at 6; VISAUser Fee at 2. \13\ CBAUser Fee at 4. See also ITCUser Fee at 6 (``Service bureaus like our company typically represent multiple clients. It is also typical for our clients to use multiple telemarketing companies as vendors. Therefore, several telemarketing companies would end up paying the fee several times for the same seller.'')
\14\ MBNAUser Fee at 34. See also ABAUser Fee at 34
(separate fees for both sellers and telemarketers unnecessarily complicates the payment schedule); ARDAUser Fee at 4 (there is ``no legitimate reason for each seller that uses a single telemarketer to pay the same fee for scrubbing against the same list'').
\15\ NCLUser Fee at 1.
The Commission does not intend to charge the same company multiple times for access to the national registry, and has gained much relevant and important information from comments on its original proposal. At the same time, the Commission is now guided by congressional authority permitting it to cover the costs of implementing and enforcing the do notcall provisions of the Amended TSR, estimated at $18.1 million this fiscal year. The Commission seeks to raise those funds as equitably as possible, to ensure that the burden of the fees is fairly divided among the entire business community that benefits from the making of outbound telephone calls.
To avoid billing entities twice for the same information, and to
divide the fees among the industry in an equitable manner, the
Commission is now proposing that each seller must pay, on an annual
basis, the appropriate fee for accessing the national registry prior to
initiating, or causing a telemarketer to initiate, an outbound telephone call.\16\
After paying the appropriate fee each annual period,\17\ the seller will be provided with a unique account number, and can use that number to gain direct access to the national registry at any time during its annual period. In addition, the seller can provide its account number to any telemarketer or list broker with which it does business, which in turn will permit that telemarketer or list broker to gain access to the information to which the seller has subscribed.\18\ The Commission proposes that such a revised fee structure is more appropriate than its original proposal. Under this revised fee structure, each seller would be charged only one time annually for access to the information included in the national registry, and would be allowed to transfer its ability to access the national registry to whatever telemarketers or list brokers it wishes to employ on its behalf.
\16\ The TSR defines an ``outbound telephone call'' as ``a telephone call initiated by a telemarketer to induce the purchase of goods or services or to solicit a charitable contribution.'' 16 CFR 310.2(u). A ``telemarketer,'' in turn, is ``any person who, in connection with telemarketing, initiates or receives telephone calls to or from a customer or donor.'' 16 CFR 310.2(bb). Finally, ``telemarketing'' is defined as a ``plan, program, or campaign which is conducted to induce the purchase of goods or services or a charitable contribution, by use of one or more telephones, and which involves more than one interstate telephone call.'' 16 CFR 310.2(cc). Thus, sellers engaging in a plan, program, or campaign involving only intrastate telemarketing calls would not be required to pay a fee or access the national registry pursuant to the TSR. In addition, solicitations to induce charitable contributions via outbound telephone calls are not covered by the donotcall
requirements of the TSR. 16 CFR 310.6(a). As a result, sellers involved only in such solicitations similarly would not be required to pay a fee or access the national registry. Of course, entities engaged in conducting surveys are not seeking to induce the purchase of goods or services and therefore are not engaged in
``telemarketing'' nor subject to the TSR. Similarly, political fund raising is not ``telemarketing'' and is not covered.
\17\ The fee that would be charged for access to the national registry is discussed in Section III.D, below. A seller's ``annual period'' is discussed in Section IV, below.
\18\ VISA suggested a similar type of pricing structure, in which the FTC could ``license'' the registry to individual sellers, which in turn could employ a telemarketer to use the registry, if they desire, subject to confidentiality and use restrictions. VISA User Fee at 2.
In a further effort to avoid requiring an entity to pay twice for
access to the same information, the Commission now proposes that
telemarketers who are not also sellersi.e., entities that engage in
telemarketing only on behalf of othersshould not have to pay a
separate fee for their access to the national registry.\19\ Charging
such ``pure'' telemarketers for access in effect would cause their
sellerclients to pay twice for access to the national registry.
Instead, under the instant proposal, such telemarketers would be
required to ensure that their sellerclients have paid for access to
the national donotcall registry prior to initiating outbound
telephone calls on their behalf. Telemarketers would gain this
assurance by obtaining and using the seller's unique account number to the national registry.
\19\ Similarly, list brokers who develop and/or scrub the calling lists for their sellerclients would not have to pay for their individual access to the national registry. Instead, they also would have to certify that their sellerclients have paid for access to the national registry prior to gaining access to the national registry.
As previously stated, the Commission seeks to spread the fee burden
equitably across all entities that engage in telemarketing. Sellers are
the ultimate beneficiaries of telemarketing campaigns, and all covered
sellers must access the national registry to remain in compliance with
the donotcall provisions of the Amended TSR. As a result, all sellers
should pay an appropriate fee for that access, but should pay that fee
only one time during each annual period. The Commission does not agree
with those commenters that suggested the agency should charge only
telemarketers, and not their clients, for access to the national
registry.\20\ By only charging telemarketers for access to the national
registry, and charging them only once for their access on behalf of
multiple clients, the fee structure would unfairly benefit those
sellers that employ a telemarketer with multiple clients, since those
sellers would pay less of a fee for access to the same information than
sellers that engage in their own telemarketing without hiring a
telemarketer. Thus, the Commission is proposing to charge sellers and
not telemarketers or list brokers for access to the national registry.\21\
\20\ See, e.g., ABAUser Fee at 34; MBNAUser Fee at 34; ITC User Fee at 6.
\21\ ABA stated that a single fee to telemarketers would enhance the privacy and security of the national registry by discouraging sellerclients from accessing the national registry individually in order to scrub their calling lists. Instead, sellers would allow their telemarketers to access the registry on their behalf. ABAUser Fee at 34. As stated above, the Commission believes that charging only telemarketers would be inequitable. The Commission also believes that the certification required of sellers who access the national registry, as discussed in Section II.A, above, will help to address the security and privacy concerns raised by ABA. Moreover, telemarketers would still be allowed to access the registry on behalf of their sellerclients under the current proposal, using their sellerclients' account number.
Proposed Sec. 310.8(a) of the Rule would make sellers directly liable for initiating, or causing a telemarketer to initiate, an outbound telephone call without first paying the appropriate fee for access to the national registry. Proposed Section 310.8(b) would make telemarketers directly liable for initiating an outbound telephone call on behalf of a seller without first ensuring that their sellerclients have paid for uptodate access to the national donotcall registry. The Commission proposes to impose this liability under the authority of the Appropriations Act and the Implementation Act, in addition to the Telemarketing Act, which provides the authority for the other portions of the Amended TSR. The Commission believes such direct liability on sellers and telemarketers is necessary to effectuate fairly the mandate of the Appropriations Act and the Implementation Act, which authorize the Commission to collect fees sufficient to cover the costs of implementing and enforcing the donotcall provisions of the Amended TSR. Without such direct liability, the Commission is concerned that not all entities that obtain information from the national registry will pay their fair share of the fees for that registry, resulting in increased fees for those entities that do pay. As a result of the proposed imposition of this direct liability, the failure of a seller to pay the appropriate fee prior to initiating or causing another entity to initiate an outbound telephone call, and the failure of a telemarketer to ensure that a seller has paid the appropriate fee prior to initiating an outbound telephone call on its behalf, would be a violation of the Amended TSR, subject to all remedies available for such violations.
C. Corporate Divisions, Subsidiaries, and Affiliates
In the User Fee NPRM, the Commission proposed following the compliance guide for the original TSR by requiring that distinct corporate divisions of a single corporation be considered separate sellers for the purposes of payment of the annual fees. Factors used to determine if corporate divisions would be treated as separate sellers would include whether there is substantial diversity between the operational structure of the divisions, and whether the goods or services sold by the divisions are substantially different from each other.
In response to this proposal, some commenters suggested that the
Commission treat divisions of the same corporation as one seller and
allow the sharing of the registry among them.\22\ Another suggested the
same treatment for a ``family'' of affiliated companies.\23\ Wells
Fargo stated that this treatment would allow a company to purchase a [[Page 16241]]
single copy of the list to maintain ``a centralized scrub service that would be available to its affiliates. While this may reduce revenues somewhat, it would greatly increase compliance. \24\
\22\ See, e.g., ARDAUser Fee at 5; CBAUser Fee at 4.
\23\ HouseholdUser Fee at 2.
\24\ Wells FargoUser Fee at 2.
The Commission is concerned that any such treatment of corporate
divisions, subsidiaries, or affiliates could greatly diminish the
number of entities that will pay for access to the national registry,
provide an unfair advantage to larger, multidivisional corporations,
and potentially increase the fees required to be paid by smaller, less
complex corporate entities. As a result, the Commission proposes to
treat each separate division, subsidiary, or affiliate of a corporation
as a separate seller for purposes of Sec. 310.8. The Commission notes
that such treatment will not diminish the effectiveness of corporate
``centralized scrub services.'' In effect, such centralized services
can still be performed, provided that each corporate division,
subsidiary, or affiliate has paid the appropriate fee for access to the
national registry. It should be noted that divisions, subsidiaries, or
affiliates of a seller that must pay for access to the national
registry need not individually download the information in the registry
on their own behalf. They need to pay only for the requisite access,
and would be able to provide their unique account number to another
division, subsidiary, or affiliate to perform the actual downloading of
information and corporate list scrubbing. See section IV, below, for
further discussion of the proposed operation of the fee collection system.
III. Calculation of Fees
A. Number of Entities Accessing the National Registry
To establish the appropriate fees to charge entities that access
consumer telephone numbers included in the national registry, the
Commission must first estimate the number of such entities that would
be required to pay the proposed fee. As stated in the User Fee NPRM,
this step is among the most difficult, given the dearth of information
about the number of sellers currently in the marketplace who make
outbound telemarketing calls to consumers.\25\ In the User Fee NPRM,
the Commission determined, after examining relevant industry literature
and the record in this and past TSR rulemaking proceedings, that the
most pertinent information for determining the number of firms that
would be required to pay the proposed user fee would be the number of
firms that access state donotcall registries. At that time, the most
telemarketing firms that accessed any individual state registry was
2,932. Thus, in order to propose a realistic fee structure that would
ensure sufficient funds would be collected to cover the costs of a
national registry, the Commission estimated in the User Fee NPRM that
3,000 entities would pay for access to the information in the national
registry.\26\ The Commission sought comment and evidence to determine whether this estimate was realistic and appropriate.
\25\ See User Fee NPRM at 3736364.
\26\ The Commission previously had estimated, in the notice of amended application to the OMB under the Paperwork Reduction Act, 44 U.S.C. 3501, et seq., that there were 40,000 telemarketing industry members affected by the TSR in the United States. See the Rule NPRM, 67 FR at 4534. As explained in the User Fee NPRM, the Commission does not believe that prior estimate is representative in the instant context. See User Fee NPRM at 37364, n. 7.
Only one of the 34 comments received in response to the User Fee
NPRM provided any information relevant to this inquiry.\27\ That
commenter, DialAmerica Marketing, Inc. (``DialAmerica''), stated that
it has 700 clients for which it would have to obtain access to the
entire national donotcall registry.\28\ In other words, DialAmerica's
client base would comprise over 23 percent of all entities that the
Commission estimated would be required to access the national
registry.\29\ This information casts doubt on the original estimate.
The Commission is therefore proposing a new estimate of the number of
firms that will access the national registry, developed through a
calculation using the limited information provided in the comments,
combined with relevant industrywide data that the Commission has been
able to identify. This calculation makes a number of significant
assumptions based on the best information available to the agency at
this time. In Section X, below, the Commission asks specific questions
about each of these assumptions, seeking information as to their
reliability. The Commission asks commenters to provide any information
they can about any and all of these assumptions, including company
specific information and data that could help the agency to refine its
estimates of the number of firms that will need to access the national registry.
\27\ The Commission also received some companyspecific information from another commenter in response to the Rule NPRM. CDIRule NPRM at 1.
\28\ DialAmericaUser Fee at 2. According to Customer
Inter@ction Solutions, a monthly magazine of the teleservices industry, DialAmerica is the secondlargest outbound teleservices agency in the United States. See http://www.tmcnet.com/cis/0302/0302top50a.htm (visited 4 February, 2003).
\29\ Moreover, DialAmerica stated that its annual fees for obtaining access on behalf of all of its clients would result in that company alone paying for 70 percent of the total amount that was to be raised by the User Fee NPRM.
Since scrubbing against the donotcall registry is only required
on outbound calls made to consumers,\30\ the Commission begins its
calculation with the assumption that DialAmerica has 700 clients for
which it makes these types of calls. According to the Winterberry
Group, DialAmerica has revenues of $300 million per year, and outbound
calls account for 90 percent of its call volume.\31\ Assuming that
DialAmerica's revenues per call are the same for inbound and outbound
calls, its revenues from outbound calls would total $270 million (90 percent of $300 million).
\30\ See 16 CFR Sec. Sec. 310.4(b)(1)(iii)(B); 310.6(b)(7). \31\ Winterberry Group, Industry Map: Teleservice Industry MultiChannel Marketing Drives Universal Call Centers 16 (January 2001)(``Winterberry Group''). The Winterberry Group is a consulting firm that works with the direct marketing industry. See http://www.winterberrygroup.com (visited 25 March 2003).
According to Customer Inter@ction Solutions, 85 percent of
DialAmerica's business involves sales to consumers.\32\ If the
Commission assumes that the 85 percent of DialAmerica's business that
involves sales to consumers is 90 percent outbound, consumer outbound
sales calls would account for $229.5 million in revenue (85 percent of
$270 million). If DialAmerica receives $229.5 million in revenue from
its 700 clients for whom it does outbound calling to consumers, this
implies that the average revenue per client is about $328,000 ($229.5 million/700).
\32\ Customer Inter@ction Solutions: Outsourcing, http://www.tmcnet.com/cis/0302/0302top50a.htm (visited 4 February, 2003).
According to the Winterberry Group, total expenditures on teleservices were $147.7 billion in 2000. Of this, 48.1 percent was spent on outbound calling, and 49.6 percent was spent on sales calls to consumers.\33\ Assuming that the same percentage of expenditures on calls to businesses and calls to consumers are for outbound calls would imply that just under 24 percent of the total spent on teleservices is spent on outbound calls to consumers (48.1 percent x 49.6 percent = 23.9 percent).
\33\ Winterberry Group at 2, 8, 9.
Also, according to the Winterberry Group, total expenditures on
thirdparty teleservices providers amounted to $19.2 billion13
percent of the $147.7 billion total expenditures on such servicesin 2000.\34\ If the Commission
assumes that, as with overall expenditures on teleservices, roughly 24 percent of expenditures on thirdparty providers was for outbound calling to consumers, expenditures on thirdparty outbound calls to consumers would total $4.59 billion (23.9 percent of $19.2 billion). \34\ Id. at 9.
If the Commission assumes that the DialAmerica figure of $328,000
in revenues per client is representative of thirdparty providers of
outbound calls to consumers in general, this would imply that there are
approximately 14,000 such telemarketerclient relationships ($4.59 billion/$328,000 = 13,994).\35\
\35\ The only other comment providing any information of assistance in determining the number of entities that would pay a fee to access the national registry came from CDI. CDI stated that it specializes in outbound calling for daily and weekly newspapers ranging in size from 5,000 subscribers to over 1 million
subscribers, makes calls on behalf of 140 different clients each month, and employs over 400 people. CDIRule NPRM at 1. Unlike DialAmerica, however, the Commission was unable to discover any information about CDI's revenues, making its companyspecific information less useful in formulating assumptions regarding the number of industry members. owever, by comparing CDI's 400 employees to the 11,000 people employed by DialAmerica (approximately 3.6 percent of the size of DialAmerica), and assuming that sales per employee are the same for the two firms, one might estimate CDI's revenues are around $11 million (approximately 3.6 percent of DialAmerica's $300 million in annual revenue). If CDI has revenues around $11 million and calls on behalf of 140 clients during the entire year, their perclient revenues would be only about $78,500 per year. (Of course, the fact that CDI calls on behalf of 140 clients each month does not mean that they have only 140 clients during the entire year. They may have different clients each month, which would make the revenue per client even lower.) If the figures for CDI are representative of a significant share of the
telemarketing industry and if, as a result, the average revenue per firm is significantly lower than what DialAmerica realizes, the estimated number of telemarketerclient relationships would increase proportionally. This NPRM is specifically seeking information and comment about these figures from the industry.
If the Commission assumes that the average firm that uses third party service providers uses three different providers for different campaigns over the course of a year, there would only be about 4,650 firms using such thirdparty providers (13,965 firms/3 = 4,655), and the average firm that uses thirdparty telemarketers would spend an average of $984,000 per year on outbound telemarketing to consumers ($328,000 x 3).
None of these figures accounts for firms that do their calling using their own staff and their own inhouse equipment, which account for $128.5 billion87 percent of total expendituresspent on teleservices.\36\ Again assuming that roughly 24 percent of expenditures by companies using their own resources to make calls are for outbound calling to consumers, total expenditures on these services would be $30.71 billion (23.9 percent of $128.5 billion). These firms are probably larger on averageand probably do more telemarketing than the firms that use thirdparty service providers. If the Commission assumes that they spend, on average, five times as much as firms that use thirdparty telemarketers, they would be spending $4.92 million per firm ($984,000 x 5). This would suggest that there are another 6,250 firms who do their own telemarketing ($30.71 billion/ $4.92 million = 6,242 firms).
\36\ See Winterbery Group at 2.
In total, this would suggest that there are some 10,900 firms doing outbound calling to consumers4,650 firms using thirdparty
telemarketers, plus 6,250 doing their own calling. Of course, some of these firms would not be required to scrub against the FTC list because they are either engaged in charitable solicitations or are calling on behalf of an industry that is exempt from FTC regulation. Other firms that make only intrastate calls would likewise not need to obtain the list. The firms that only make intrastate calls are likely to be the smaller firms that tend to use thirdparty providers to make their calls.
If the Commission assumes that 40 percent of firms that use third
party providers and 25 percent of firms that do their own telemarketing
are exempt from coverage,\37\ approximately 2,800 firms that use third
party providers (60 percent of 4,655 = 2,793) and 4,700 firms that do
their own telemarketing (75 percent of 6,231 = 4,682) would be required
to access the national donotcall registry. Thus, the total number of firms accessing the registry would be 7,500.
\37\ Firms that are exempt from coverage include those engaged only in intrastate telemarketing or in making solicitations to induce charitable contributions. See footnote 16, above. In addition, firms outside of the FTC's jurisdiction that make their own telemarketing calls, such as common carriers, banks, savings and loans, as well as companies that engage in the business of insurance, are also exempt from coverage and not included in our estimate of the number of firms that will have to access the national registry.
B. Amount of Information for Which an Entity Would Be Charged
In the User Fee NPRM, the Commission proposed a fee structure based on the number of different area codes of data that an entity wished to use annually.\38\ The Commission proposed charging for access to the registry per area code because that charge most closely approximated the cost of operating the national registry. The Commission also determined that many telemarketers and sellers engage in regional rather than nationwide calling campaigns, and therefore would not need consumer registration data for the entire nation.
\38\ See User Fee NPRM at 37364.
A number of commenters that addressed this issue supported using
area codes as a basis for assessing the fee.\39\ In fact, SBA noted
that the flexibility inherent in allowing entities to access the
national registry by area code ``would be beneficial to small
businesses.'' \40\ On the other hand, other commenters suggested that
imposing fees based on the number of area codes accessed, rather than
imposing a flat fee, would create ``unnecessary administrative
complications.'' \41\ However, the Commission has determined that it is
not overly complex, from a system implementation prospective, to
provide access to and collect fees for the national registry by area
code. In fact, providing the entire national registry to every entity
that seeks access, even if that entity will not need all of that
information, would put a significantly larger strain on the resources
necessary to deliver that information, resulting in an unnecessary
increase in system costs. Another commenter stated that the
``management of tracking user fees for area codes that each individual
client calls for a sales campaign would be an extremely burdensome task
for larger telemarketers.'' \42\ The Commission acknowledges that
charging for access to the national registry by area code may entail
some complexity for large telemarketers. On balance, however, the
Commission believes that the countervailing benefits of allowing access
to the registry by area code outweigh any potential costs. As a result,
the Commission continues to propose providing access to the national
registry based on the number of area codes of information sought.\43\
\39\ See ARDAUser Fee at 4; NCLUser Fee at 1; AARPUser Fee at 2.
\40\ SBAUser Fee at 4.
\41\ ABAUser Fee at 3. Accord HouseholdUser Fee at 4; ITCUser Fee at 6; MBNAUser Fee at 2; TRAUser Fee at 3.
\42\ DialAmericaUser Fee at 2.
\43\ One commenter requested clarification that if access to the entire registry is requested, the requestor will not have to input a list of all area codes. Household at 6. That is correct. An entity seeking access to the entire national registry will simply have to check a box indicating that preference, without having to list any area codes. In addition, the registry will offer the same access capabilities for the area codes within each state, so that entities will be able to select all area codes within a certain state simply by requesting access to information for that state.
C. Small Business Access
In the User Fee NPRM, the Commission proposed providing free
registry access to any firm wishing to obtain data from only one to
five area codes.\44\ The Commission proposed such free access to limit
the burden placed on small businesses that only require access to a
small portion of the national registry. The Commission noted that its
proposal was consistent with the mandate of the Regulatory Flexibility
Act, 5 U.S.C. 601, which requires that to the extent, if any, a rule is
expected to have a significant economic impact on a substantial number
of small entities, agencies should consider regulatory alternatives to minimize such impact.\45\
\44\ See User Fee NPRM at 37364.
\45\ But see section IX, below, where the Commission determines that the instant proposed Rule would not have a significant economic impact on a substantial number of small entities.
A number of commenters supported this small business exemption.\46\
Others opposed it for various reasons. Household stated that any fee
should be assessed to all entities obtaining access to the national
registry because there is no rational basis to do otherwise, and
``telemarketers and sellers should not have to subsidize the
telemarketing activities of other telemarketers or sellers, regardless
of their size.''\47\ ITC stated that the number of area codes purchased
is a poor indicator of the extent of actual use, and a structure
without exemptions is simpler and easier to administer.\48\ TRA stated
that ``the area or population served by five or fewer area codes could
be enormous,'' and that all telemarketers should be required to help
defray the cost of the national registry.\49\ SBSC maintained that the
five area code exemption does not provide sufficient protections for
small businesses, since many small businesses are located in geographic
areas with many area codes, and some small businesses may actually be
national in scope.\50\ Finally, NASUCA expressed concern that
telemarketers may ``game'' the system to avoid paying for access
especially by treating ``distinct corporate divisions of a single
corporation'' as separate entities, thus allowing each division to
gather five area codes and pool the numbers among themselves. NASUCA
also stated that there can be variations in the number of customers
within an area code and the number of area codes within a state,
creating inconsistencies in the amount of data for which a telemarketer will be paying.\51\
\46\ See, e.g., NCLUser Fee at 1; SBAUser Fee at 1, 4; AARP User Fee at 2.
\47\ HouseholdUser Fee at 34.
\48\ ITCUser Fee at 6.
\49\ TRAUser Fee at 6.
\50\ Small Business Survival Committee (``SBSC'')User Fee at 2. \51\ NASUCAUser Fee at 36.
After evaluating these comments, the Commission still believes that
it is appropriate to provide access to a small portion of the data in
the national registry for free. The Commission agrees with the comments
that stated the imposition of fees may be unduly burdensome, and could
have a disproportionate impact, on small businesses.\52\ The Commission
is attempting to alleviate that burden to the greatest extent possible,
while still collecting the necessary fees in as equitable manner as
possible. By providing free access to a small portion of the national
registry, the Commission is attempting to alleviate some of the
disproportionally heavier burdens faced by small businesses. The
Commission recognizes that not all small businesses will be able to
enjoy the benefits of this proposal, since some small businesses may
engage in telemarketing in a geographic area larger than five area
codes. However, the Commission believes that most entities that will
benefit from this proposal will be small businesses. Moreover,
providing this free access does not significantly increase the complexity of implementing the national registry.\53\
\52\ See ICTAUser Fee at 12; AmeriquestUser Fee at 6;
Celebrity Prime FoodsUser Fee at 1.
\53\ In the Commission's view, an alternative approach that would provide small business with exemptive relief more directly tied to size status would not balance the private and public interests at stake any more equitably or reasonably than the approach currently proposed by the Commission. For example, an acrosstheboard exemption from all fees for small businesses, no matter how many area codes they access, would shift the entire cost of the registry to larger businesses and require assessing them even higher access fees, while giving the small business community access to the registry without any costsharing responsibility whatsoever. Compared to the Commission's current proposal, which requires small businesses that telemarket beyond five area codes to pay access fees, a categorical smallbusiness exemption would not be as consistent with the general legislative mandate that the Commission recover the registry's costs from those telemarketing entities obtaining access to the registry. Alternatively, it might be argued that allowing small businesses to pay reduced rates across the entire fee schedule could achieve substantially the same level and balance of exemptive relief and cost recoupment as the current proposal to provide free access to five area codes or fewer. A reduced fee schedule based on small business size, however, would still ultimately require a certification and determination of that status to implement and enforce, and thus would present greater administrative, technical, and legal costs and complexities than the Commission's current exemptive proposal, which does not require any proof or verification of that status.
The Commission also believes its proposal will prevent companies from ``gaming'' the system to gain free access on a large scale. It would be a violation of the proposed fee rule for a telemarketer, or a seller to cause a telemarketer, to initiate outbound telephone calls in an area of the country for which it did not pay for access to the national registry. Thus, distinct corporate divisions of the same company that acquire only five area codes of data could not make outbound telephone calls outside of those five area codes without violating the proposed rule. As a practical matter, it is unlikely that any company would organize its divisions by limiting each division's telemarketing to five area codes, just to avoid the proposed fee. The Commission believes that the costs associated with trying to ``game'' the system in such a manner would be much larger than the benefits of avoiding the proposed fees.
While the Proposed Rule provides free access to a small portion of the national registry, the Commission continues to seek comment on other alternatives that would balance the burdens faced by small businesses with the need to raise appropriate fees to fund the registry in an equitable manner.
As for the appropriate level of free access, the Commission
continues to seek comment on this issue as well.\54\ Absent evidence to
the contrary, the Commission believes that five area codes is an
appropriate compromise between the goals of equitably and adequately
funding the national registry, on the one hand, and providing
appropriate relief for small businesses, on the other. While the
Commission understands that five area codes could provide free access
to a significant geographic area, the Commission also is attempting to
address those small businesses that work in large metropolitan areas,
which often have multiple area codes within a relatively small
geographic area. Furthermore, while the Commission is mindful of the
possible variations in the number of telephone numbers included in each
area code, the Commission believes the only more equitable way to
divide access to the national registry, other than by area code, might
be by individual telephone number. Such a fine gradation, assuming its feasibility,
would significantly increase the complexity of the system, both in terms of accessing and delivering the data. The Commission believes the increase in the complexity weighs against such an approach. Thus, the Commission continues to propose that access to five or fewer area codes of data in the national registry be provided for free.
\54\ SBA commented that it had insufficient information to determine whether five area codes is an appropriate level of free access, and recommended that the FTC contact small telemarketers to inquire how many area codes they commonly access in a given year during the course of business. SBAUser Fee at 4. ICTA suggested that the number of area codes of data that could be acquired without paying a fee be increased from five to ten, but provided no rationale for this suggestion. ICTAUser Fee at 12.
D. Fees for Access
As previously discussed, both the Appropriations Act and the Implementation Act authorize the Commission to raise fees sufficient to cover the costs of implementing and enforcing the donotcall provisions of the Amended TSR, estimated at $18.1 million for fiscal year 2003. The Commission anticipates that it will need to raise the entire estimated $18.1 million authorized to cover the costs associated with those efforts in this fiscal year. Costs fall primarily in three broad categories. First are the actual estimated contract costs along with associated agency costs to develop and operate the donotcall registry. These cover things like the registration procedures and handling of complaints, the transfer of registration information from state lists to the registry, telemarketer access to the registration information, and the management and operation of law enforcement access to appropriate information. The second category of costs relates to enforcement efforts. These costs will include law enforcement initiatives, both domestic and international, to identify targets and challenge alleged violators. Enforcement costs also include consumer and business education, which are critical complements to enforcement in securing compliance with the donotcall provisions. The third category of costs covers agency infrastructure and administration costs, including information technology structural supports. In particular, the Consumer Sentinel system (the agency's repository for all consumer fraudrelated complaints) and its attendant infrastructure must be upgraded to handle the anticipated increased demand from state law enforcers for access to donotcall complaints. Further, the Consumer Sentinel system will require substantial changes so that it may handle the significant additional volume of complaints that are expected.
In order to raise $18.1 million this fiscal year, and assuming that
7,500 firms will pay for that access, the Commission proposes charging
an annual fee of $29 for each area code of data accessed.\55\ There
would be no fee charged for access to five or fewer area codes of data.
In addition, the Commission continues to propose placing a cap on the
maximum annual fee that would be charged an entity that wants access to
the entire national database. That maximum fee would be $7,250, which
would be charged for using 250 area codes of data or more. As a result
of this revised proposed fee schedule, there would be no charge for
obtaining only five area codes of data; six area codes of data would
cost $174; twentyfive area codes would cost $725; two hundred area
codes would cost $5,800; and access to the data from all area codes would be capped at $7,250 annually.
\55\ Only two commenters responded to questions in the User Fee NPRM as to whether an annual or a monthly fee would be a more preferable, efficient, and appropriate method of fee collection. Both supported the use of an annual fee, as opposed to monthly one. See HouseholdUser Fee at 4; MBNAUser Fee at 4.
As stated above, these proposed fees are based on certain
assumptions and estimates.\56\ The Commission anticipates that whatever
fees may be adopted would be reexamined periodically and would likely
need to be adjusted, in future rulemaking proceedings, to reflect actual experience with operating the registry.
\56\ In addition to the assumptions set forth in Section III.A, above, concerning the number of firms that will access the national registry, the Commission continues to assume that, on average, sellers will pay to obtain information from 83 area codes in the national registry. See User Fee NPRM at 37368, question 5.
IV. Operation of the National Registry for the Telemarketing Industry
The Commission is developing a fullyautomated, secure Web site dedicated to providing members of the telemarketing industry with access to the registry's list of telephone numbers, sorted by area code. The first time a company accesses the system, it will be asked to provide certain limited identifying information, such as company name and address, company contact person, and the contact person's telephone number and email address. If an entity is accessing the registry on behalf of a clientseller, the entity will also need to identify that client.
The only consumer information that companies will receive from the
national registry is a registrant's telephone number.\57\ Those
telephone numbers will be sorted and available by area code. Companies
will be able to access as many area codes as desired, by selecting, for
example, all area codes within a certain state. Of course, companies
will also be able to access the entire national registry, if desired.
In addition, after providing the required identifying information and
paying the appropriate fee, if any, companies will be allowed to check,
via interactive Internet pages, a small number of telephone numbers
(less than ten) at a time to permit small volume callers to observe the
donotcall requirements of the TSR without having to download a
potentially large list of all telephone numbers within a particular area.
\57\ In fact, that is the only personal identifying information submitted by consumers that will be maintained in the national registry. The registry will also maintain other information about the registration for law enforcement purposes, such as the date and method of registration, but that information will not be available to companies accessing the registry.
When a seller first submits an application to access registry information, the company will be asked to specify the area codes that it wants to access. As discussed above, each seller accessing the registry data will be required to pay an annual fee for that access, based on the number of area codes of data the seller accesses. Fees will be payable via credit card (which will permit the realtime transfer of data) or electronic funds transfer (which will require the seller to wait approximately one day for the funds to clear before data access will be provided). A seller must pay these fees prior to gaining access to the registry.
Sellers will be able to access data as often as they like during
the course of one year (defined as their ``annual period'') for those
area codes that are selected with the payment of the related annual
fee.\58\ If, during the course of the year, sellers need to access data
from more area codes than those initially selected, they would be
required to pay for access to those additional area codes. For purposes
of these additional payments, the annual period is divided into two
semiannual periods of sixmonths each. Obtaining additional data from
the registry during the first semiannual, sixmonth period will
require a payment of $29 for each new area code. During the second
semiannual, sixmonth period, the charge of obtaining data from each
new area code requested during that sixmonth period is $15. These
payments for additional data would provide sellers access to those
additional areas of data for the remainder of their initial annual term.
\58\ To protect system integrity, a company will be permitted to download the entire national registry only once in any 24hour period.
After payment is processed, the seller will be given a unique
account number and permitted access to the appropriate portions of the
registry. That account number will be used in future visits to [[Page 16245]]
the Web site, to shorten the time needed to gain access. On subsequent visits to the Web site, sellers will be able to download either an entire updated list of numbers from their selected area codes, or a more limited list, consisting only of additions to or deletions from the registry that have occurred since the company's last download. This would limit the amount of data that a company needs to download during each visit.
Telemarketers, list brokers, and other entities working on behalf
of sellers will need to submit their clientseller's account number to
gain access to the national registry. The extent of their access will
be limited by the area codes requested and paid for by their client
sellers. They also will be permitted to access the registry as often as
they wish for no additional cost, once the annual fee has been paid by
their clientsellers.\59\ As indicated in the Rule NPRM discussion of
section 310.4(b)(3)(iv), however, the Rule requires a seller or
telemarketer to employ a version of the donotcall registry obtained
from the Commission no more than three months prior to the date any telemarketing call is made.
\59\ Telemarketers, list brokers, and other entities working on behalf of sellers will also be limited to downloading the entire national registry only once in any 24hour period.
V. Date By Which Full Compliance With the DoNotCall Provisions of the Amended TSR Will Be Required
In the Statement of Basis and Purpose to the Amended TSR, the Commission stated that it would announce at a future time the date by which full compliance with Sec. 310.4(b)(1)(iii)(B), the donotcall registry provision, would be required.\60\ At that time, the Commission anticipated that full compliance with the donotcall provision would be required approximately seven months from the date a contract is awarded to create the national registry.
\60\ See 68 FR at 4664.
On March 1, 2003, the Commission awarded the contract to create the national donotcall registry to AT&T Government Solutions, Inc. Accordingly, the Commission is now announcing that full compliance with Sec. 310.4(b)(1)(iii)(B), the ``donotcall'' registry provision of the Amended TSR, will be required on October 1, 2003.
Companies will be able to begin accessing the national donotcall registry on September 1, 2003. As a result, to remain in compliance with the donotcall provisions of the Amended TSR, all covered sellers will be required to access the national registry for the first time between September 130, 2003. During that same time frame, all covered sellers or entities working on their behalf must download the portions of the national registry for those areas of the country in which they will either initiate an outbound telephone call or cause a telemarketer to initiate an outbound telephone call on their behalf.
VI. Invitation to Comment
All persons are hereby given notice of the opportunity to submit
written data, views, facts, and arguments concerning these proposed
changes to the Commission's Telemarketing Sales Rule. The Commission
invites written comments to assist it in ascertaining the facts
necessary to reach a determination as to whether to adopt as final the
proposed changes to the Rule. The Commission encourages comments to be
submitted electronically to the following email address:
firstname.lastname@example.org. Alternatively, commenters may submit an original plus two paper copies of their comments to the Office of the Secretary, Room 159, Federal Trade Commission, 600 Pennsylvania Avenue, NW., Washington, DC 20580. All comments must be submitted on or before May 1, 2003. Time is of the essence to promulgate these proposed fees. Thus, the Commission does not anticipate providing any extension to this comment period.
Comments submitted will be available for public inspection in accordance with the Freedom of Information Act, 5 U.S.C. 552, and Commission Rules of Practice, on normal business days between the hours of 9 a.m. and 5 p.m. at the Public Reference Section, Room 130, Federal Trade Commission, 600 Pennsylvania Avenue, NW., Washington, DC 20580. The Commission will make this NPRM and, to the extent possible, all comments received in response to this NPRM, available to the public through the Internet at the following address: http://www.ftc.gov. VII. Communications by Outside Parties to Commissioners or Their Advisors
Written communications and summaries or transcripts of oral communications respecting the merits of this proceeding from any outside party to any Commissioner or Commissioner's advisor will be placed on the public record. See 16 CFR 1.26(b)(5).
VIII. Paperwork Reduction Act
This Revised Fee NPRM does not involve any new collection of information requirements that were not already proposed in the User Fee NPRM. However, the Commission has raised its estimate of the number of firms subject to this collection of information, which increases accordingly the cumulative paperwork burden presented by this proposed revision. The Commission informed the Office of Management and Budget about this proposed burden increase.
The Commission continues to propose requiring those firms that
access the national donotcall registry to submit minimal identifying
information that the operator of the registry deems necessary to
collect the proposed fee, as outlined in section IV, above. The
information to be collected from those firms, and the frequency of that
collection, has not changed from the User Fee NPRM.\61\ The Commission
estimated, in the User Fee NPRM, that it should take no longer than two
minutes for each firm to submit this basic information, and that each
firm would have to submit the information annually.\62\ Given current
estimates that there are approximately 7,500 firms that will have to
access the information in the national registry, the Commission
estimates that this revised proposal will result in 250 burden hours
(7,500 firms x 2 minutes per firm = 15,000 minutes, or 250 hours). In
addition, the Commission continues to estimate that possibly onehalf
of those firms may need, during the course of their annual period, to
submit their identifying information more than once in order to obtain
additional area codes of data. This would result in an additional 125
burden hours (3,750 telemarketers x 2 minutes per telemarketer = 7,500
minutes, or 125 hours). Thus, the Commission estimates that the revised
fee provision will impose a total paperwork burden of approximately 375 hours per year.
\61\ See User Fee NPRM at 3736566.
\62\ Id. at 37366. As stated in the User Fee NPRM, this estimate is likely to be conservative for PRA purposes. The OMB regulation defining ``information'' generally excludes disclosures that require persons to provide facts necessary simply to identify themselves, e.g., the respondent, the respondent's address, and a description of the information the respondent seeks in detail sufficient to facilitate the request. See 5 CFR 1320.3(h)(1).
The Commission anticipates that clerical employees (or other low level administrative personnel) of affected entities will fulfill the function of supplying companyidentifying information to the registry contractor. Assuming a clerical hourly wage of $10 per hour, the cumulative annual labor cost to respondents to provide the requisite information is $3,750 (375 hours x $10 per hour).
The Commission once again invites comment that will enable it to:
1. Evaluate whether the proposed collections of information are necessary for the proper performance of the functions of the Commission, including whether the information will have practical utility;
2. Evaluate the accuracy of the Commission's estimates of the burdens of the proposed collections of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and validity of the information to be collected; and
4. Minimize the burden of the collections of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical or other technological collection techniques or other forms of information technology.
IX. Regulatory Flexibility Act
The Regulatory Flexibility Act (``RFA''), 5 U.S.C. 604(a), requires an agency either to provide an Initial Regulatory Flexibility Analysis (``IRFA'') with a proposed rule, or certify that the proposed rule will not have a significant economic impact on a substantial number of small entities. The FTC does not expect that the final rule concerning fees will have the threshold impact on small entities. As discussed in section III.C, above, this NPRM specifically proposes charging no fee for access to data included in the registry from one to five area codes. As a result, the Commission anticipates that many small businesses will be able to access the national registry without having to pay any annual fee. Thus, it is unlikely that there will be a significant burden on small businesses resulting from the adoption of the proposed fees.
The Commission reached a similar conclusion in the User Fee NPRM.\63\ Nonetheless, the Commission determined that it was appropriate to publish an IRFA in the User Fee NPRM, in order to inquire into the impact on small entities of both the amendments to the TSR proposed in the User Fee NPRM, as well as the proposed amendments to the TSR set forth in the Rule NPRM. The Commission welcomed comment on any significant alternatives that would further minimize the impact on small entities, consistent with the obje
FOR FURTHER INFORMATION CONTACT
David M. Torok, (202) 326-3075, Division of Marketing Practices, Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Avenue, NW, Washington, DC 20580.