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FEDERAL COMMUNICATIONS COMMISSION
Federal Communications Commission
CFR Citation: 47 CFR Part 64
Docket ID: [CG Docket Nos. 04-53 and 02-278; FCC 04-52]
NOTICE: PROPOSED RULES
ACTION: Common carrier services:
DOCUMENT ACTION: Proposed rule.
SUBJECT CATEGORY: Rules and Regulations Implementing the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003; Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991
DATES: Comments in CG Docket No. 04-53, concerning unwanted mobile service commercial messages and the CANSPAM Act, are due on or before April 30, 2004 and reply comments are due on or before May 17, 2004. Comments in CG Docket No. 02278, concerning both a limited safe harbor under the TCPA and the required frequency for telemarketers to access the national donotcall registry, are due on or before April 15, 2004 and reply comments are due on or before April 26, 2004. Written comments by the public on the proposed information for this collection for CG Docket No. 0453 and CG Docket No. 02278, are due April 30, 2004. Written comments must be submitted by the Office of Management and Budget (OMB) on the proposed information collection on or before June 1, 2004.
DOCUMENT SUMMARY: This document seeks comment on how best to implement [[Page 16874]]
regulations to protect consumers from unwanted mobile service
commercial messages. This document also seeks comment on two possible
revisions to rules implementing the national donotcall registry.
SUMMARY: Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 and Telephone Consumer Protection Act of 1991; implementation—; Consumer protection from unwanted mobile service commercial messages and national do-not-call registery revisions,
SUPPLEMENTAL INFORMATION
This is a summary of the Commission's Notice of Proposed Rulemaking (NPRM), Rules and Regulations Implementing the Controlling the Assault of NonSolicited Pornography and Marketing Act of 2003; CG Docket No. 0453; and this Further Notice of Proposed Rulemaking (FNPRM), Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Docket No. 02278, FCC 0453, adopted March 11, 2004, and released March 19, 2004. The full text of this document is available on the Commission's Web site Electronic Comment Filing System and for public inspection during regular business hours in the FCC Reference Center, Room CYA257, 445 12th Street, SW., Washington, DC 20554. To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at (202) 4180531 (voice), (202) 4187365 (TTY). Comments filed through the ECFS can be sent as an electronic file
via the Internet to http://www.fcc.gov/efile/ecfs.html. Generally,
only one copy of an electronic submission must be filed. If multiple
docket or rulemaking numbers appear in the caption of this proceeding,
however, commenters must transmit one electronic copy of the comments
to each docket or rulemaking number referenced in the caption. In
completing the transmittal screen, commenters should include their full
name, Postal Service mailing address, and the applicable docket or
rulemaking number. Parties may also submit an electronic comment by
Internet email. To get filing instructions for email comments,
commenters should send an email to ecfs@fcc.gov, and should include
the following words in the body of the message, ``get form
This NPRM and FNRPM contain proposed and modified information collections. The Commission, as part of its continuing effort to reduce paperwork burdens, invited the general public and OMB to comment on the information collection contained in this NPRM and FNPRM, as required by the Paperwork Reduction Act of 1995, Public Law 10413. Public and agency comments are due at the same time as other comments on this NPRM; OMB notification of action is due 60 days from date of publication of this NPRM and FNPRM in the Federal Register. Comments should address: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimates; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.
OMB Control Number: 3060xxxx.
Title: Rules and Regulations Implementing the Controlling the
Assault of NonSolicited Pornography and Marketing Act of 2003 (CAN SPAM); FCC 0452.
[[Page 16875]]
Form Number: N/A.
Type of Review: New Collection.
Respondents: Business or other forprofit entities.
Number of Respondents: There are approximately 22,620,000 total businesses in the USA. We would assume that onlyat mosthalf of those send unwanted commercial electronic mail messages.
Estimated Time per Response: Varies with proposed rules. For the domain name proposals, this might only affect CMRS carriers to report domain names, and senders of commercial messages to check periodically. Census data indicates that there are approximately 350 CMRS carriers. The proposal involving a registry of individual addresses would involve checking a list of mail addresses regularly and comparing that to any list the sender has. We note that with the adoption of the CANSPAM Act in general, since January 1, 2004, senders are prohibited from sending commercial electronic mail messages to any recipient who makes a request not to receive any more such mail from that sender. Hence, senders must already check a list of electronic mail addresses against a list they must keep of anyone who has requested not to receive such mail. The Commission noted in the CMRS Competition Report that there are approximately 142 million mobile subscribers. 1.512 hours
Frequency of Responses: On occasion. This is a recordkeeping requirement.
Total Annual Burden: Approximately 17 million hours132 million hours (depending on the options).
Total Annual Cost: $1,750,000.
Needs and Uses: The item asks how senders can identify electronic
mail addresses as belonging to mobile services messaging systems, which
the statute requires the FCC to protect. We seek comment in particular
on whether there could be a list or standard naming convention of
domain names; or an individual registry of electronic mail addresses.
Further we ask about whether there are automatic challengeresponse
mechanisms that would alert senders that they are sending their message
to such a subscriber. Further, we explore mechanisms that do not
require the sender to recognize the addresses. These methods are
filtering mechanisms. We also explore the use of senders tagging their
messages to identify them as commercial. These steps are examined for
their usefulness in giving wireless subscribers the ability to stop receiving unwanted commercial mobile services messages.
OMB Control Number: 30600519.
Title: Rules and Regulations Implementing the Telephone Consumer Protection Act (TCPA) of 1991, NPRM, CG Docket No. 02278, FCC 0452.
Form Number: N/A.
Type of Review: Revision of a currently approved collection.
Respondents: Business or other forprofit entities; Notforprofit institutions.
Number of Respondents: 30,000.
Estimated Time per Response: 3 hours (average).
Frequency of Response: On occasion. This is a reporting requirement.
Total Annual Burden: 90,000 hours.
Total Annual Costs: $1,710,000.
Needs and Uses: The current total public disclosure and recordkeeping burden for collections of information under the TCPA rules is 1,728,600 hours, as stated most recently in the Commission's OMB submission to extend approval of the information collection in connection with the TCPA rules. We believe that the amended safe harbor, which would require telemarketers to scrub their call lists monthly, could increase the burdens by 60,000 hours and increase the total annual costs by $855,000 to $1,710,000.
Proposal Revision to Certain Recordkeeping Requirements
The Commission seeks comment on whether to revise certain
recordkeeping requirements that must be met before companies may avail
themselves of any ``safe harbor'' protections for violating the donot
call rules. Companies that conduct telemarketing already maintain their
own donotcall lists and many of them must reconcile their lists with
the national donotcall list on a quarterly basis. We believe that any
additional recordkeeping burden as a result of specific ``safe harbor''
requirements would be minimal for most telemarketers. We estimate that
this requirement will account for an additional 2 hours of
recordkeeping burden per company, or an additional 60,000 hours. Synopsis
I. CANSPAM
A. Definition of Mobile Service Commercial Messages
Section 14(b)(1) of the Controlling the Assault of NonSolicited Pornography and Marketing Act of 2003 (CANSPAM Act or the Act) states that the Commission shall adopt rules to provide subscribers with the ability to avoid receiving a ``mobile service commercial message'' (MSCM) unless the subscriber has expressly authorized such messages beforehand. The Act defines an MSCM as a ``commercial electronic mail message that is transmitted directly to a wireless device that is utilized by a subscriber of commercial mobile service'' as defined in 47 U.S.C. 332(d) ``in connection with that service.'' For purposes of this discussion, we shall refer to mobile service messaging as MSM. As a threshold matter, we commence our inquiry by exploring the scope of messages covered by section 14.
1. Commercial Electronic Mail Message
Although the Act defines an electronic mail message broadly as a message having a unique electronic mail address with ``a reference to an Internet domain,'' the scope of electronic messages covered under section 14 is narrowed. MSCMs are only those electronic mail messages ``transmitted directly to a wireless device that is utilized by a subscriber of commercial mobile service'' as defined in 47 U.S.C. 332(d) ``in connection with that service.'' Section 332(d) defines the term ``commercial mobile service'' as a mobile service that is provided for profit and makes interconnected service available to the public or to such classes of eligible users as to be effectively available to a substantial portion of the public. The Commission equates the statutory term ``commercial mobile service'' with ``commercial mobile radio service'' or CMRS used in its rules.
Accordingly, it appears that only commercial electronic messages transmitted directly to a wireless device used by a CMRS subscriber would fall within the definition of MSCMs under the Act. Further, we note that the Act states that an electronic mail message shall include a unique electronic mail address, which is defined to include two parts: (1) ``a unique user name or mailbox;'' and (2) ``a reference to an Internet domain.'' Thus, it appears that MSCM would be limited under the Act, to a message that is transmitted to an electronic mail address provided by a CMRS provider for delivery to the addressee subscriber's wireless device. We seek comment on this interpretation and its alternatives. Commenters should address whether only these or other messages would fall under the definition of MSCM.
Under the Act, whether an electronic mail message is considered
``commercial'' is based upon its ``primary purpose.'' It meets this
definition if its primary purpose is ``the commercial advertisement or
promotion of a commercial product or service (including content on an
Internet website operated for a commercial purpose).'' A ``commercial'' message for
[[Page 16876]]
purposes of the Act does not include a transactional or relationship
message. The Act requires the FTC to issue regulations defining the
relevant criteria to facilitate the determination of the primary purpose of an electronic mail message by January of 2005.
2. Transmitted Directly to a Wireless Device Used by a Subscriber of Commercial Mobile Service
As explained above, in order to satisfy the definition of an MSCM, the message must be ``transmitted directly to a wireless device.'' In light of the definition of an MSCM, as discussed above, it appears that the statutory language would be satisfied when a message is transmitted to an electronic mail address provided by a CMRS provider for delivery to the addressee subscriber's wireless device. As discussed below, we believe that the specific transmission technique used in delivering a particular message may not be relevant under the statute, and that messages ``forwarded'' by a subscriber to his or her own wireless device are not covered under section 14. We seek comment on these interpretations as well as the issues described below.
We have asked above whether a message becomes an MSCM only if it is transmitted to a wireless device used by a subscriber of CMRS ``in connection with that service.'' We seek comment on whether an interpretation that all commercial electronic mail messages sent to CMRS carriers' mobile messaging systems are MSCMs would be consistent with the definition of MSCM in the Act. For example, do CMRS carriers offer services through which electronic mail messages are sent directly to wireless devices other than in connection with commercial mobile service as defined in section 332(d)? Commenters should also discuss any other relevant issues involving the definition of MSCM.
Transmission techniques. Currently, there appear to be two main methods for transmitting messages to a wireless device, and those methods are through push and pull technologies. Message transmission techniques using ``pull'' technologies store messages on a server until a recipient initiates a request to access the messages from either a wireless or nonwireless device. ``Push'' technologies automatically without action from the recipientsend messages to a recipient's wireless device. Certain messages that are initiated as electronic mail messages on the Internet and converted for delivery to a wireless device, discussed below in the context of SMS messaging, are examples of messages delivered to wireless devices using such push technologies. We believe that the definition of a MSCM should include all messages transmitted to an electronic mail address provided by a CMRS provider for delivery to the addressee subscriber's wireless device irrespective of the transmission technique. We seek comment on this interpretation and alternatives.
The legislative history of the Act suggests section 14, in conjunction with the Telephone Consumer Protection Act (TCPA), was intended to address wireless text messaging. SMS messages are text messages directed to wireless devices through the use of the telephone number assigned to the device. When SMS messages are sent between wireless devices, the messages generally do not traverse the Internet and therefore do not include a reference to an Internet domain. However, a message initially may be sent through the Internet as an electronic mail message, and then converted by the service provider into an SMS message associated with a telephone number. We seek comment on whether the definition of an MSCM should include messages using such technology and similar methods, and specifically whether it should include either or both of these types of SMS messages described above. We note here that the TCPA and Commission rules prohibit calls using autodialers to send certain voice calls and text calls, including SMS messages, to wireless numbers.
Forwarding. The manner in which recipients of MSCMs utilize messaging options may also be relevant to our interpretation of the definition of MSCM. For example, another way for a commercial mobile service subscriber to obtain electronic mail messages is for that subscriber to take steps to have messages forwarded from a server to the subscriber's wireless device. With this type of electronic mail transmission, a subscriber can, for example, obtain messages initially sent to an electronic mail account that is normally accessed by a personal computer. We do not believe that section 14 was intended to apply to all such messages. First, defining the scope of section 14 to include all ``forwarded'' messages could result in our rules applying to virtually all electronic mail covered by the CANSPAM Act because subscribers can forward most electronic mail to their wireless devices. We do not believe that Congress intended such a result given that it would duplicate in large measure the FTC's authority under the Act. Moreover, the legislative history of the Act suggests that section 14 was not intended to address messages ``forwarded'' in this manner. Congressman Markey, in support of section 14, stated: ``Spam sent to a desktop computer email address, and which is then forwarded over to a wireless network to a wireless device, i.e., delivered `indirectly' from the initiator to the wireless device, would be treated by the rest of this bill and not by the additional section 14 wirelessspecific provisions we subject to an FCC rulemaking.'' We seek comment on the view that such transmissions fall outside the category of those ``transmitted directly to a wireless device.'' Commenters should address our assumption that a broad interpretation of ``transmitted directly to a wireless device'' to cover ``forwarded'' electronic mail messages would expand the scope of section 14 to cover all electronic mail covered by the CANSPAM Act in general.
Section 14 requires that the FCC ``consider the ability of a sender
of a commercial electronic mail message to reasonably determine that
the message is a mobile service commercial message.'' We seek comment
on how a sender would know that it was sending an MSCM if any action by
a recipient to retrieve his messages by a wireless device could convert
a nonMSCM into an MSCM, or viceversa. We seek comment on the
technical and administrative characteristics relevant to distinguishing forwarded messages as well as other messages.
B. The Ability To Avoid Receiving MSCMs
1. How To Enable Consumers To Avoid Unwanted MSCMs
We seek comment on ways in which we can implement Congress's
directive to protect consumers from ``unwanted mobile service
commercial messages.'' As explained above, section 14(b)(1) of the CAN
SPAM Act states that the Commission shall adopt rules to provide
subscribers with the ``ability to avoid receiving [MSCMs] unless the
subscriber has provided express prior authorization to the sender.''
The legislative history of the Act suggests that section 14 was
included so that wireless subscribers would have greater protections
from commercial electronic mail messages than those protections
provided elsewhere in the Act. As explained below, we believe that
section 14(b)(1) is intended to provide consumers the opportunity to
generally bar receipt of all MSCMs (except those from senders who have
obtained the consumer's prior express consent). However, we believe
that in order to do so, the consumer must take affirmative action to bar the MSCMs in the first
[[Page 16877]]
instance. Although it appears that Congress intended to afford wireless
subscribers greater protection from unwanted commercial electronic mail
messages than those protections provided elsewhere in the Act, it is
not clear that Congress necessarily sought to impose a flat prohibition
against such messages in the first instance. However, as set forth
below, we seek comment on both of these different interpretations of section 14(b)(1).
The language of the CANSPAM Act requires the Commission to ``protect consumers from unwanted mobile service commercial messages.'' The protections extend to unwanted MSCMs from senders who may ignore the provisions of the CANSPAM Act. As a practical matter, the particular protections for wireless subscribers required by the Act may require comprehensive solutions. Therefore, in addition to those considerations directed by the CANSPAM Act discussed below, we seek comment generally on technical mechanisms that could be made available to wireless subscribers so that they may voluntarily, and at the subscriber's discretion, protect themselves against unwanted mobile service commercial messages. We seek comment on means by which wireless providers might protect consumers from MSCMs transmitted by senders who may willfully violate the wireless provisions of the CANSPAM Act addressed in this proceeding. We seek comment on how, in particular, small businesses would be affected by the various proposals we consider.
We are aware that a number of other countries have taken a variety of technical and regulatory steps to protect their consumers from unwanted electronic mail messages in general. In doing so, some countries such as Japan and South Korea have adopted an optout approach; while others such as the United Kingdom, France, and Germany had adopted an optin approach. Still others have a mixed approach. Also, different countries have taken a variety of positions on whether labeling and identification of commercial messages is required, whether a DoNotEMail registry can be developed, and whether the use of ``spamware'' is prohibited. We seek comment on any of these approaches, consistent with section 14, applicable to unwanted mobile service commercial messages, with particular emphasis on their effectiveness, associated costs and burdens, if any, on carriers, subscribers or other relevant entities. Commenters should not only focus on the present, but also on the foreseeable future.
a. Prohibiting the Sending of MSCMs. Section 14(b)(1) states that the Commission's rules shall ``provide subscribers to commercial mobile services the ability to avoid receiving mobile service commercial messages unless the subscriber has provided express prior authorization to the sender.'' One possible interpretation of this provision is that Congress intended to prohibit all senders of commercial electronic mail from sending MSCMs unless the senders first obtain express authorization from the recipient. This reading would allow the subscriber to avoid all MSCMs unless the subscriber acts affirmatively to give express permission for messages from individual senders.
Another interpretation of this provision is that Congress intended
the subscriber to take affirmative steps to avoid receiving MSCMs to
indicate his or her desire not to receive such messages. For example,
under this interpretation, the customer might, at the time he or she
subscribes to the mobile service, affirmatively decline to receive
MSCMs. The subscriber would still have the option to agree to accept MSCMs from particular senders. We invite comment on both
interpretations, particularly in light of the technological abilities and any constitutional concerns.
We also ask for comment on the practical aspects of either interpretation of this provision, given potential problems senders might have currently in determining whether the message sent is an MSCM. Commenters should address enforcement and administrative concerns associated with any Commission action taken to protect subscribers from unwanted MSCMs. We also ask whether the mechanisms described below might help alleviate those problems. In addition, we ask for comment on the effect either interpretation might have upon small businesses.
We seek comment on whether senders at this time have the practical
ability to ``reasonably determine'' whether an electronic mail message
is sent directly to a wireless device or elsewhere. Some MSM subscriber
addresses might be identifiable if they use a phone number in front of
a reference to an Internet domain of a recognizable wireless carrier.
For example, ``2024189999@[wireless company].com'' would be such an
address. However, we understand that other MSM subscriber addresses do not have such easily distinguishable addresses, such as
``nickname@[wireless company].com.'' Moreover, as technology evolves,
the options available for accessing and reading electronic mail
messages from mobile devices will only expand. Therefore, as required
by the Act, we must ``consider the ability of a sender'' of a
commercial message to ``reasonably determine'' that the message is an MSCM.
There appear to be a variety of mechanisms that, if implemented, could allow a sender to reasonably determine that a message is being sent to an MSM subscriber. We seek comment on the efficacy and cost considerations of each of the specific mechanisms identified below, as well as any reasonable alternatives, whether they are offered at the network level by service providers, at the device level by manufacturers, or even by other mechanisms involving subscribers themselves. We especially seek comment from small businesses on these issues. If wireless providers are to follow direction from subscribers as to which senders' messages should be blocked or allowed to pass through any filter, we seek comment on whether such information about the subscribers' choices is adequately protected. We seek comment on whether other protections are needed and what they might be.
In this section we focus on possible mechanisms to enable senders to recognize MSMs by the recipient's electronic mail message address, specifically the Internet domain address portion.
List of MSM domain names. We seek comment on whether we should
establish a list of all domain names that are used exclusively for MSM
subscribers, to allow senders to identify the electronic mail addresses
that belong to MSM subscribers. We note that this list would not
include unique user names or mailboxesrather, it would solely be a
registry of a small number of mail domains to allow senders to identify
whether any messages they were planning to send would in fact be MSCMs.
If an MSM provider were to use a portion of their domain exclusively
for MSMs, the list would include the portion of its domain devoted to
that purpose. In that case, we believe that a sender could consult such
a list to reasonably determine if a message was addressed to a mobile
service subscriber. We seek comment on whether it is industry practice
for providers to employ subdomains that are exclusively used to serve
their MSM subscribers that distinguish such customers from other
customers. For example, if a company offers both MSM and nonMSM
services, does it assign subscribers to those different services the
same or different domain names for their addresses? If not, we seek [[Page 16878]]
comment on whether we should require MSM providers to do so. We seek
comment on whether using exclusive subdomain names should be required
for all MSM service, or whether we should require carriers to offer subscribers the option of using such a name.
In connection with this approach, we seek comment on whether we should establish such a list and prohibit the sending of commercial electronic mail messages to domains on that list as violations of the Act. We seek comment on what steps the Commission may take to encourage or require the use of domain name oriented solutions by entities subject to our jurisdiction. Further, we seek comment on what steps the Commission could take to facilitate these solutions through interaction with industry and other entities not directly regulated by the Commission. We seek comment on any practical, enforceability, cost or other concerns related to establishing such a list. We seek comment on how it might be established, maintained, accessed and updated. We seek comment regarding any burdens on small business owners who advertise using electronic mail to check such a list in order to comply with the Act.
Registry of individual subscriber addresses. We seek comment on whether we should establish a limited national registry containing individual electronic mail addresses, similar to the national ``donot call'' registry. The FTC is tasked with reviewing how a nationwide marketing ``DoNotEMail'' registry might offer protection for those consumers who choose to join. Would a similar registry just for MSM addresses be consistent with the Act in general and with the greater protections provided in section 14(b)(1) for MSM subscribers? If the FTC implements a registry, how would ours differ? We seek comment on any practical, technical, security, privacy, enforceability, and cost concerns related to establishing such a registry. In particular, we seek comment on how it might be established, maintained, accessed and updated. We seek information about the volume of addresses potentially included in such a registry, how MSM providers could verify that submitted addresses were only for MSM service, and how such a registry might be funded. In particular, could the confidentiality of MSM subscriber electronic mail addresses be adequately protected if maintained on a widelyaccessible list? We seek comment on the burdens on small businesses to participate in such a registry. We seek comment on whether the establishment of a registry of electronic mail addresses could result in more, rather than less, unwanted electronic mail messages being sent to those addresses.
MSMonly domain name. We seek comment on whether it would be
possible and useful to require the use of specific toplevel and
secondlevel domains, which form the last two portions of the Internet
domain address. For example, could we allow carriers to use a toplevel
domain, particularly the ``.us'' countrycode toplevel domain, and
require that to be preceded by a standard secondlevel domain (such as
``
Common MSM subdomain names. We seek comment on whether we should require one portion of the domain to follow a standard naming convention to be used for all MSM service, or whether each carrier could choose its own naming convention within its own domains, as long as it was only used for such service. We note that one apparently significant difficulty with this approach is that entities that do not provide MSM service might also adopt such names. Thus, the sender might not be able to distinguish those addresses to which sending an MSCM was prohibited from some other addresses to which it is not prohibited. We seek comment on these and any other domain namebased approaches, their respective merits, and their practicality. In addition, we seek comment as to the effect a domainname based approach will have on small communications carriers and whether there are less burdensome alternatives for such businesses.
b. Challenge and Response Mechanisms. As an alternative, we seek comment on whether we should require wireless providers to adopt mechanisms that would offer what is known as a ``challengeresponse'' system. A challengeresponse mechanism sends back a challenge that requires a response verifying some aspect of the message. It is our understanding that technical mechanisms exist that could automatically hold a message and send a response to the sender to let the sender know the message was addressed to an MSM subscriber. For example, such technology might either ask for confirmation from the sender before forwarding the message to the intended recipient, or just return the first message from a sender with a standard response noting that the intended recipient was an MSM subscriber. Data suggests that this ``challengeresponse'' approach is available in countering unwanted electronic mail, and a number of variants are possible. We seek comment on such mechanisms and alternatives. Is it reasonable to expect the sender to note the addressee's status and refrain from sending future messages to that address unless the sender has prior express authorization? Could mechanisms notifying the sender after he has sent an MSCM serve as an alternative or supplement to other mechanisms for enabling the sender to identify MSM subscriber addresses before an MSCM is sent? Would this practice be less burdensome to small businesses than alternative proposals? Would a challengeresponse mechanism designed to filter out commercial electronic mail present an inappropriate impediment to noncommercial messages?
c. Commercial Message Identification. We note that, in order to make any blocking or filtering mechanisms respond only to commercial messages, rather than to all messages, commercial messages would first need to be identified. We seek comment on the best methods that could be used by an MSM provider to identify such messages as commercial, if such methods are needed to make a filtering system effective. For example, would it be useful to use characters at the start of the subject line, or other methods? We seek comment on methods for ``tagging'' such messages so that they are identifiable as commercial messages. In addition, we ask about the practicality of having an MSM provider automatically request a response from the sender's server for any MSCMs identified by unique characters in the subject line labeling. We seek comment on this and other similar approaches and their respective merits and practicality. We seek comment on specific alternative approaches.
By itself, a prohibition against anyone sending MSCMs without prior
express permission would place the burden on the sender to ensure that
it is not sending its messages to MSM addresses. We seek comment therefore on whether
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it would be necessary or useful to consider the option of ``tagging''
commercial messages to identify them. We seek comment on this issue and
on our authority to require such tagging on all commercial electronic
mail. We note that the Act requires the FTC to tender a report to
Congress outlining a plan to address the labeling of commercial
electronic mail messages in general. We are especially interested in
the comments of small businesses about this alternative. Is it less burdensome than other alternatives?
2. Express Prior Authorization
Congress directed the FCC to adopt rules to provide consumers with the ability to avoid receiving MSCMs, unless the subscriber has provided express prior authorization to the sender. We seek comment on the form and content of such ``express prior authorization.'' We seek comment on whether it should be required to be in writing, and how any such requirement could be met electronically. We note that certain other requirements of the Act do not apply if the sender has obtained the subscriber's ``affirmative consent.'' As defined in the Act, ``affirmative consent'' means: (1) That the recipient expressly consented either in response to a clear and conspicuous request for such consent, or at the recipient's own initiative; and (2) in cases when the message is from a party other than the party which received consent, that the recipient was given clear and conspicuous notice at the time of consent that the electronic mail address could be transferred for the purpose of initiating commercial email messages. We seek comment on whether the definition of ``affirmative consent'' would also be suited to use in defining ``express prior
authorization.''
We seek comment on whether any additional requirements are needed and the technical mechanisms that a subscriber could use to give express prior authorization. For example, should there be a notice to the recipient about the possibility that costs could be incurred in receiving any message? What technical constraints imposed by the unique limitations of wireless devices are relevant in considering the form and content of express prior authorization. We seek comment on ways to ease the burdens on both consumers and businesses, especially small businesses, of obtaining ``express prior authorization'' while maintaining the protections intended by Congress.
3. Electronically Rejecting Future MSCMs
Section 14(b)(2) specifically requires that we develop rules that ``allow recipients of MSCMs to indicate electronically a desire not to receive future MSCMs from the sender.'' We seek comment on whether there are any technical options that might be used, such as a code that could be entered by the subscriber on her wireless device to indicate her withdrawal of permission to receive messages. For example, could an interface be accessed over the Internet (not necessarily through the wireless device) so that a user would access his or her account and modify the senders' addresses for which messages would be blocked or allowed through? We seek comment on whether carriers, especially small carriers, already have systems in place to allow subscribers to block messages from a sender upon request of a subscriber. We also seek comment on whether a challengeandresponse system, as discussed above, could be used to accomplish this goal. A challengeresponse mechanism sends back a challenge that requires a response verifying some aspect of the message. In addition to the challengeresponse systems, could an MSM subscriber select a ``secret code'' or other personal identifier that a subscriber could distribute selectively to entities who she wanted to be able to send MSCMs to her? Could such an approach enable a carrier to filter out all commercial messages that do not include that ``secret code'' or personal identifier? We seek comment on whether there is some mechanism using the customer's wireless equipment, rather than the network, that could be used by a subscriber to screen out future MSCMs. We seek comment on these and any other methods that would allow the recipient of MSCMs to indicate electronically a desire not to receive future MSCMs from the sender. We especially seek comment from small businesses that might be affected by such a requirement. Further we seek comment on whether it would be appropriate to require or allow senders of MSCMs to give subscribers the option of going to an Internet Web site address provided by the sender to indicate their desire not to receive future MSCMs from the sender. Additionally, we seek comment on whether there are additional considerations needed for MSCMs sent to subscribers who are roaming on the network, given, for example, that different networks may have different technological capabilities. 4. Exemption for Providers of Commercial Mobile Services
Section 14(b)(3) requires the Commission to take into consideration whether to subject providers of commercial mobile services to paragraph (1) of the Act. As a result, the Commission may exempt CMRS providers from the requirement to obtain express prior authorization from their current customers before sending them any MSCM. In making any such determination, the Commission must consider the relationship that exists between CMRS providers and their subscribers.
We seek comment on whether there is a need for such an exemption and how it would impact consumers. As discussed above, the Act already excludes certain ``transactional and relationship'' messages from the definition of unsolicited commercial electronic mail. These transactional and relationship messages include those sent regarding product safety or security information, notification to facilitate a commercial transaction, and notification about changes in terms, features, or the customer's status. We seek comment then on whether there is a need for a separate exemption for CMRS providers from the section 14 ``express prior permission'' requirement. In particular, we seek specific examples of messages, if any, that CMRS providers send to their customers that are not already excluded under the Act in general. Should any exemptions for carriers be limited to only those messages sent by CMRS carriers regarding their own service? What would be the impact of any such exemption on small businesses?
If the Commission opts to exempt CMRS carriers from obtaining prior express authorization, Congress has required that such providers, in addition to complying with other provisions of the Act, must allow subscribers to indicate a desire to receive no future MSCMs from the provider: (1) At the time of subscribing to such service and (2) in any billing mechanism. We seek comment on how we might implement those requirements, if we provide an exemption. Finally, we seek comment regarding whether small wireless service providers should be treated differently with respect to any of these issues, and if so, how. C. Senders of MSCMs and the CANSPAM Act in General
Section 14(b)(4) of the Act requires the Commission to determine how a sender of an MSCM may comply with
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the provisions of the CANSPAM Act in general, considering the ``unique
technical aspects, including the functional and character limitations,
of devices that receive such messages.'' If a sender is not prohibited
from sending MSCMs to an address, either because the subscriber has not
used his ability to stop such messages or because the sender has
received ``express prior authorization,'' then the message must still
comply with the Act in general. Therefore, we ask for comment on
specific compliance issues that senders of MSCM might have with other sections of the Act.
We believe that a large segment of MSM subscribers who receive and
send textbased messages on their wireless devices today do so on
digital cellular phones that are designed principally for voice
communications and that provide limited electronic mail message
functionality. Currently, text messages are often limited to a maximum
message length of ranging from 120 to 500 characters. Some MSM
providers limit the length of messages allowed on their systems to
approximately 160 characters. As a result, it might be difficult for
senders to supply information required by the CANSPAM Act (such as
header information and required identifier, material on how to request
no more messages, and postal address), because that content might be
limited in length or might not be readily displayable. Consequently,
there might be some technical difficulties in ensuring that electronic
mail content is provided to subscribers in compliance with the
requirements of the Act. We seek comment on these issues, particularly
as they affect small wireless providers and other small businesses. We
ask for comment on whether any such issues will be mitigated in the
near future with advances in technology. For example, we understand
that some commercial mobile service subscribers may already supplement
the limited text handling functionality with ancillary personal
computer technology. We seek comment on this and any other possible
technical considerations for senders of MSCMs that must comply with the Act.
II. TCPA
A. Safe Harbor for Calls to Wireless Numbers
We now seek additional comment on the ability of telemarketers, especially small businesses, to comply with the TCPA's prohibition on calls to wireless numbers since implementation of intermodal Local Number Portability (LNP). We specifically seek comment on whether the Commission should adopt a limited safe harbor for autodialed and prerecorded message calls to wireless numbers that were recently ported from a wireline service to a wireless service provider.
The Direct Marketing Association (DMA) indicates that it is in the process of creating a ported number database. It contends, however, that this solution will not allow marketers to update their call lists instantaneously when consumers port their wireline numbers. The DMA argues that, even with a direct link to Neustar's database of wireless service numbers that have recently been ported from wireline service, there will be time lags throughout the process, during which a consumer who has just ported a wireline number to wireless service could receive a call from a marketer.
As the Commission stated in the 2003 TCPA Order, the TCPA rules prohibiting telemarketers from placing autodialed and prerecorded message calls to wireless numbers have been in place for 12 years and the Commission's porting requirements have been in place for over five years. Telemarketers have received sufficient notice of these requirements in order to develop business practices that will allow them to continue to comply with the TCPA. The record continues to demonstrate that information is currently available to assist telemarketers in determining which numbers are assigned to wireless carriers. Nevertheless, we recognize that once a number is ported to a wireless service, a telemarketer may not have access to that information immediately in order to avoid calling the new wireless number.
We seek comment on the narrow issue of whether the Commission
should adopt a limited safe harbor during which a telemarketer will not
be liable for violating the rule prohibiting autodialed and prerecorded
message calls to wireless numbers once a number is ported from wireline
to wireless service. If so, we seek comment on the appropriate safe
harbor period given both the technical limitations on telemarketers and
the significant privacy and safety concerns regarding calls to wireless
subscribers. For example, would a period of up to seven days be a
reasonable amount of time for telemarketers to obtain data on recently
ported numbers and to scrub their call lists of those numbers? Or, as
the DMA has requested, should any safe harbor the Commission adopt
provide telemarketers with up to 30 days to do so? Are there other
options in the marketplace available to telemarketers that should
affect whether we adopt a limited safe harbor as well as the duration
of any such safe harbor? We also seek comment on whether any safe
harbor period adopted should sunset in the future and, if so, when. In
addition, we seek comments from small businesses which engage in
telemarketing about the appropriateness of such a limited safe harbor and its parameters.
B. National DoNotCall Registry and Monthly Updates by Telemarketers
We seek comment on whether we should amend our safe harbor provision to mirror any amendment made by the FTC to its safe harbor. The Appropriations Act does not require the FCC to amend its rules. However, in the DoNotCall Implementation Act (DoNotCall Act), Congress directed the FCC to consult and coordinate with the FTC to ``maximize consistency'' with the rules promulgated by the FTC. In addition, we note that, absent action to amend our safe harbor, many telemarketers will face inconsistent standards because the FTC's jurisdiction extends only to certain entities, while our jurisdiction extends to all telemarketers.
Therefore, in an effort to remain consistent with the FTC's rules, we propose amending our safe harbor to require sellers and telemarketers acting on behalf of sellers to use a version of the national donotcall registry obtained from the administrator of the registry no more than 30 days prior to the date any call is made. We seek comment on how amending our safe harbor provision, or failing to do so, would affect telemarketers' ability to comply with the Commission's donotcall rules. What problems will telemarketers, including small businesses, face in ``scrubbing'' their call lists every 30 days that they do not experience under the current rules? Are there any reasons the Commission should not amend its rules to be consistent with the FTC?
Initial Regulatory Flexibility Analysis (IRFA)
As required by the Regulatory Flexibility Act (RFA), 5 U.S.C. 603
et seq., the Commission has prepared this Initial Regulatory
Flexibility Analysis (IRFA) of the possible significant economic impact
on small entities by the policies and rules proposed in this NPRM. See
5 U.S.C. 603. A substantial number of small entities might be affected
by our action. Written public comments are requested on this IRFA.
Comments must be identified as responses to the IRFA and must be filed
by the deadlines for comments on the NPRM or FNPRM, as applicable. The [[Page 16881]]
Commission will send a copy of the NPRM and FNPRM, including this IRFA,
to the Chief Counsel for Advocacy of the Small Business Administration. See 5 U.S.C. 603(a).
Need for, and Objectives of, the Proposed Rules
On December 8, 2003, Congress passed the Controlling the Assault of NonSolicited Pornography and Marketing Act of 2003 (CANSPAM Act) to address the growing number of unwanted commercial electronic mail messages, which Congress determined to be costly, inconvenient, and often fraudulent or deceptive. Congress found that recipients ``who cannot refuse to accept such mail'' may incur costs for storage, and ``time spent accessing, reviewing, and discarding such mail.'' The CAN SPAM Act prohibits any person from transmitting such messages that are false or misleading and gives recipients the right to decline to receive additional messages from the same source. Certain agencies, including the Commission, are charged with enforcement of the CANSPAM Act.
Section 14 of the CANSPAM Act requires the Commission to (1) promulgate rules to protect consumers from unwanted mobile service commercial messages, and (2) in doing so consider the ability of senders to determine whether a message is a mobile commercial electronic mail message. In addition, the Commission shall consider the ability of senders of mobile service commercial messages to comply with the CANSPAM Act in general. Furthermore, the CANSPAM Act requires the Commission to consider the relationship that exists between providers of such services and their subscribers.
The Telephone Consumer Protection Act (TCPA) was enacted to address certain telemarketing practices, including calls to wireless telephone numbers, which Congress found to be an invasion of consumer privacy and even a risk to public safety. The TCPA specifically prohibits calls using an autodialer or artificial or prerecorded message ``to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other common carrier service, or any service for which the called party is charged.'' In addition, the TCPA required the Commission to ``initiate a rulemaking proceeding concerning the need to protect residential telephone subscribers' privacy rights'' and to consider several methods to accommodate telephone subscribers who do not wish to receive unsolicited advertisements.
In 2003, the Commission released a Report and Order (2003 TCPA Order) revising the TCPA rules to respond to changes in the marketplace for telemarketing. Specifically, we established in conjunction with the Federal Trade Commission (FTC) a national donotcall registry for consumers who wish to avoid unwanted telemarketing calls. The national donotcall registry supplements longstanding companyspecific rules which require companies to maintain lists of consumers who have directed the company not to contact them. In addition, we determined that the TCPA prohibits any call using an automatic telephone dialing system or an artificial or prerecorded message to any wireless telephone number. We concluded that this encompasses both voice calls and text calls to wireless numbers including, for example, Short Message Service calls. We acknowledged that, beginning in November of 2003, numbers previously used for wireline service could be ported to wireless service providers and that telemarketers will need to take the steps necessary to identify these numbers. Intermodal local number portability (LNP) went into effect November, 2003.
The 2003 TCPA Order required that telemarketers use the national donotcall registry maintained by the FTC to identify consumers who have requested not to receive telemarketing calls. Currently, in order to avail themselves of the safe harbor for telemarketers, a telemarketer is required to update or ``scrub'' its call list against the national donotcall registry every 90 days. Recently the FTC released a Notice of Proposed Rulemaking proposing to amend its safe harbor provision and require telemarketers to update their call lists every 30 days. This Notice proposes to modify the Commission's rules to parallel any changes to the FTC's rules. With this amendment, all telemarketers would be required to scrub their lists against the national donotcall registry every 30 days in order to avail themselves of that safe harbor.
Issues Raised in Notice
This Notice addresses three policy and rule modifications. First, it initiates a proceeding to implement the CANSPAM Act by enacting regulations to protect consumers from unwanted mobile service commercial messages. Second, under the TCPA we are exploring the need for a safe harbor for telemarketers who call telephone numbers that have been recently ported from wireline to wireless service. Third, we propose a change to the existing telemarketing safeharbor provision which would require telemarketers to access the donotcall registry every 30 days.
Legal Basis
The proposed action is authorized under Sections 14, 227, and 303(r) of the Communications Act of 1934, as amended; the Controlling the Assault of NonSolicited Pornography and Marketing Act of 2003, Public Law Number 108187, 117 Statute 2699; and the DoNotCall Implementation Act, Public Law Number 10810, 117 Statute 557. Description and Estimate of the Number of Small Entities to Which the Proposed Rule Will Apply
The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the proposed rules and policies, if adopted. The RFA generally defines the term ``small entity'' as having the same meaning as the terms ``small business,'' ``small organization,'' and ``small governmental jurisdiction.'' In addition, the term ``small business'' has the same meaning as the term ``small business concern'' under the Small Business Act. A ``small business concern'' is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.
The regulations and policies proposed in this item on telephone
solicitation and the prohibitions of sending electronic commercial mail
messages apply to a wide range of entities, including all entities that
use the telephone or electronic messaging to advertise. That is, our
actions affect the myriad of businesses throughout the nation that use
telemarketing or electronic messaging to advertise. We have attempted
to identify, with as much specificity as possible, all business
entities that potentially may be affected by the policies and rules
proposed herein, but are not expanding in this analysis the scope of
entities possibly subject to requirements adopted in this proceeding
beyond the scope described in the Notice itself. In order to assure
that we have covered all possible entities we have included general
categories, such as Wireless Service Providers and Wireless
Communications Equipment Manufacturers, while also including more
specific categories, such as Cellular Licensees and Common Carrier
Paging. Similarly, for completeness, we have also included descriptions
of small entities in various categories, such as 700 MHz Guard Band Licenses, who
[[Page 16882]]
may potentially be affected by this proceeding but who would not be
subject to regulation simply because of their membership in that category.
Sometimes when identifying small entities we provide information describing auctions' results, including the number of small entities that were winning bidders. We note, however, that the number of winning bidders that qualify as small businesses at the close of an auction does not necessarily reflect the total number of small entities currently in a particular service. The Commission does not generally require that applicants provide business size information, nor does the Commission track subsequent business size, except in the context of an assignment or transfer of control application where unjust enrichment issues are implicated. Consequently, to assist the Commission in analyzing the total number of potentially affected small entities, we request that commenters estimate the number of small entities that may be affected by any changes.
Small Businesses. Nationwide, there are a total of 22.4 million small businesses, according to SBA data.
Telemarketers. SBA has determined that ``telemarketing bureaus'' with $6 million or less in annual receipts qualify as small businesses. For 1997, there were 1,727 firms in the ``telemarketing bureau'' category, total, which operated for the entire year. Of this total, 1,536 reported annual receipts of less than $5 million, and an additional 77 reported receipts of $5 million to $9,999,999. Therefore, the majority of such firms can be considered to be small businesses.
Wireless Service Providers. The SBA has developed a small business size standard for wireless firms within the two broad economic census categories of ``Paging'' and ``Cellular and Other Wireless Telecommunications.'' Under both SBA categories, a wireless business is small if it has 1,500 or fewer employees. For the census category of Paging, Census Bureau data for 1997 show that there were 1,320 firms in this category, total, that operated for the entire year. Of this total, 1,303 firms had employment of 999 or fewer employees, and an additional 17 firms had employment of 1,000 employees or more. Thus, under this category and associated small business size standard, the great majority of firms can be considered small. For the census category Cellular and Other Wireless Telecommunications, Census Bureau data for 1997 show that there were 977 firms in this category, total, that operated for the entire year. Of this total, 965 firms had employment of 999 or fewer employees, and an additional 12 firms had employment of 1,000 employees or more. Thus, under this second category and size standard, the great majority of firms can, again, be considered small.
Internet Service Providers. The SBA has developed a small business size standard for Internet Service Providers. This category comprises establishments ``primarily engaged in providing direct access through telecommunications networks to computerheld information compiled or published by others.'' Under the SBA size standard, such a business is small if it has average annual receipts of $21 million or less. According to Census Bureau data for 1997, there were 2,751 firms in this category that operated for the entire year. Of these, 2,659 firms had annual receipts of under $10 million, and an additional 67 firms had receipts of between $10 million and $24,999,999. Thus, under this size standard, the great majority of firms can be considered small entities.
Wireless Communications Equipment Manufacturers. The Commission has not developed special small business size standards for entities that manufacture radio, television, and wireless communications equipment. Therefore, the applicable small business size standard is the definition under the SBA rules applicable to ``Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing.'' Examples of products that fall under this category include ``transmitting and receiving antennas, cable television equipment, GPS equipment, pagers, cellular phones, mobile communications equipment, and radio and television studio and broadcasting equipment'' and may include other devices that transmit and receive Internet Protocol enabled services, such as personal digital assistants. Under that standard, firms are considered small if they have 750 or fewer employees. Census Bureau data for 1997 indicate that, for that year, there were a total of 1,215 establishments in this category. Of those, there were 1,150 that had employment under 500, and an additional 37 that had employment of 500 to 999. The percentage of wireless equipment manufacturers in this category is approximately 61.35%, so the Commission estimates that the number of wireless equipment manufacturers with employment under 500 was actually closer to 706, with an additional 23 establishments having employment of between 500 and 999. Given the above, the Commission estimates that the great majority of wireless communications equipment manufacturers are small businesses.
Radio Frequency Equipment Manufacturers. The Commission has not
developed a special small business size standard applicable to Radio
Frequency Equipment Manufacturers. Therefore, the applicable small
business size standard is the definition under the SBA rules applicable
to ``Radio and Television Broadcasting and Wireless Communications
Equipment Manufacturing.'' Under that standard, firms are considered
small if they have 750 or fewer employees. Census Bureau data for 1997 indicate that, for that year, there were a total of 1,215
establishments in this category. Of those, there were 1,150 that had
employment under 500, and an additional 37 that had employment of 500
to 999. Thus, under this size standard, the majority of establishments can be considered small entities.
Paging Equipment Manufacturers. The Commission has not developed a special small business size standard applicable to Paging Equipment Manufacturers. Therefore, the applicable small business size standard is the definition under the SBA rules applicable to ``Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing.'' Under that standard, firms are considered small if they have 750 or fewer employees. Census Bureau data for 1997 indicate that, for that year, there were a total of 1,215 establishments in this category. Of those, there were 1,150 that had employment under 500, and an additional 37 that had employment of 500 to 999. Thus, under this size standard, the majority of establishments can be considered small entities.
Telephone Equipment Manufacturers. The Commission has not developed a special small business size standard applicable to Telephone Equipment Manufacturers. Therefore, the applicable small business size standard is the definition under the SBA rules applicable to ``Telephone Apparatus Manufacturing.'' Under that standard, firms are considered small if they have 1,000 or fewer employees. Census Bureau data indicates that for 1997 there were 598 establishments that manufacture telephone equipment. Of those, there were 574 that had fewer than 1,000 employees, and an additional 17 that had employment of 1,000 to 2,499. Thus, under this size standard, the majority of establishments can be considered small.
As noted in paragraph 10, we believe that all small entities affected by the policies and proposed rules contained
[[Page 16883]]
in this Notice will fall into one of the large SBA categories described
above. In an attempt to provide as specific information as possible,
however, we are providing the following more specific categories.
Cellular Licensees. The SBA has developed a small business size standard for wireless firms within the broad economic census category ``Cellular and Other Wireless Telecommunications.'' Under this SBA category, a wireless business is small if it has 1,500 or fewer employ
FOR FURTHER INFORMATION CONTACT Ruth Yodaiken, of the Consumer &
Government Affairs Bureau at (202) 4182512 (voice), or email
ruth.yodaiken@fcc.gov. For additional information concerning the
information collection contained in this document, contact Leslie Smith
at (202) 4180217 or via the Internet at Leslie.Smith@fcc.gov.
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