******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Federal Communications Commission Washington, D.C. 20554 August 19, 1998 Gwen M. Rowling Westel, Inc. 111 Congress Ave., Suite 600 Austin, Texas 78701 Dear Ms. Rowling: I am writing in response to your February 3, 1998, letter requesting that the Commission issue an opinion clarifying certain sections of the Telephone Consumer Protection Act (TCPA), and Commission's rules and orders implementing the TCPA. Specifically, you asked whether the TCPA compels Westel, Inc. to honor a list of telephone numbers submitted by a third party for addition to Westel's do-not-call list. In your letter you state that Westel has received a written list of phone numbers from a company claiming to represent a group of consumers that wish to be removed from all of Westel's telemarketing calling lists. You also note the list includes an order form noting prices that are to paid for future lists of names formatted on different media. In addition, you report that Westel would be placed under a "staggering burden" if it were required to process lists of numbers submitted by various third parties asserting that Westel will be in violation of the TCPA if the lists of numbers are not accepted by Westel and added to its do- not-call lists. You assert that a Commission policy mandating acceptance of such written lists raises a number of problems such as: the effectiveness of Commission enforcement; the cost of purchasing such lists by companies such as Westel; proof of agency; and the potential for anti-competitive abuses. You note, for example, that lists compiled by third parties could contain inaccurate information but Westel would be held responsible for the addition of these third-party names and numbers into its do-not-call list in a timely manner. The TCPA recognizes the legitimacy of the telemarketing industry but notes that unrestricted telemarketing could be an invasion of privacy and, in some instances, a risk to public safety. One of the Commission's tasks with regard to implementing the TCPA was to consider which methods would best accommodate telephone subscribers who do not wish to receive unsolicited advertisements, including live voice solicitations, while not unduly hampering the telemarketing industry. After considering a number of options, the Commission concluded that company- specific do-not-call lists would be the most effective, least costly, and most easily implemented means of curbing unwanted telephone solicitations. See Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CC Docket No. 92-90, Report and Order, 7 FCC Rcd 8752, 8763-65 (1992). In the Report and Order, the Commission stated that the company-specific do-not-call lists would best protect residential subscriber confidentiality because do-not-call lists would not be universally accessible and could be verified with a telemarketer's own customer information. When describing the company-specific do-not-call list option in the Notice of Proposed Rulemaking, the Commission noted that a telemarketing entity usually "has become aware of the subscriber's wishes through a prior telemarketing contact during which the subscriber asked not to be contacted in the future." See The Telephone Consumer Protection Act of 1991, CC Docket No. 92-90, Notice of Proposed Rulemaking, 7 FCC Rcd 2736 (1992). Moreover, section 64.1200(e)(2)(iii) of the Commission's rules states: If a person or entity making a telephone solicitation (or on whose behalf a solicitation is made) receives a request from a residential telephone subscriber not to receive calls from that person or entity, the person or entity must record the request and place the subscriber's name and telephone number on the do- not-call list at the time the request is made. If such requests are recorded or maintained by a party other than the person or entity on whose behalf the solicitation is made, the person or entity on whose behalf the solicitation is made will be liable for any failures to honor the do-not-call request. Section 64.1200(e)(2)(iii) establishes that a telephone subscriber may request not to receive telephone solicitation calls. In the Report and Order, the Commission states that the do-not- call list requirements were designed to help ensure that residential subscriber privacy is protected from further undesired solicitations and that mandatory company-specific do-not- call lists allow residential subscribers to halt calls selectively from specific businesses from which they do not wish to hear. These Commission orders and regulations mandate that telemarketers respond to specific requests by individual subscribers to place those subscribers upon a telemarketer's do-not-call list, and the entity on whose behalf a solicitation is made is responsible for honoring an individual's request. Since liability for failure to honor an individual's request is placed on the entity making the solicitation, it is reasonable to allow telemarketers to determine under what circumstances they accept lists of numbers compiled by third parties, particularly since the Commission's regulations do not specifically address the compilation of lists of names by third parties. I hope that this information is helpful. Sincerely, Geraldine A. Matise Chief, Network Services Division Common Carrier Bureau