Click here for Adobe Acrobat version
Click here for Microsoft Word version

******************************************************** 
                      NOTICE
********************************************************

This document was converted from Microsoft Word.

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
Microsoft Word or Adobe Acrobat version.

*****************************************************************



                                                                   DA 12-1476

                                                           September 11, 2012

                                             Enforcement Advisory No. 2012-06

                TELEPHONE CONSUMER PROTECTION ACT ROBOCALL RULES

       POLITICAL CAMPAIGNS AND PROMOTERS ARE REMINDED OF RESTRICTIONS ON

                        AUTODIALED AND PRERECORDED CALLS

   As the 2012 campaign season for national, state, and local elected offices
   continues, the FCC's Enforcement Bureau issues this Enforcement Advisory
   to promote more widespread understanding of the restrictions imposed by
   The Telephone Consumer Protection Act of 1991 (TCPA) and corresponding
   Commission rules governing political telephone calls. CTIA - The Wireless
   Association has reported an uptick in complaints to its carrier members
   about unwanted political messages being sent to consumers' mobile phones,
   and has asked the FCC to issue a public notice about applicable
   requirements in the TCPA and the Commission's rules.

   The TCPA and the Commission's rules set forth restrictions that govern the
   use of prerecorded voice messages and automated telephone dialing systems,
   which may include certain political calls. These restrictions vary
   according to whether a call is delivered to a business or residential
   landline telephone, a cell phone, or some other category of protected
   telephone lines such as toll-free lines, emergency lines, or those lines
   servicing hospitals, nursing homes, and paging systems.

   We expect that this Advisory will lead to greater compliance with the
   relevant sections of the TCPA and corresponding rules by senders of
   political prerecorded voice messages and autodialed calls, including text
   messages. We also emphasize, however, that the TCPA and corresponding
   rules provide important consumer protections that we intend to continue to
   strictly enforce.

   Prerecorded Voice Messages and Autodialed Calls to Cell Phones and Other
   Mobile Services. Prerecorded voice messages and autodialed calls
   (including autodialed live calls, prerecorded or artificial voice
   messages, and text messages) to cell phones and other mobile services such
   as paging systems are prohibited, subject to only two exceptions: 1) calls
   made for emergency purposes, and 2) calls made with the prior express
   consent of the called party. This broad prohibition covers prerecorded
   voice and autodialed political calls, including those sent by nonprofit
   organizations. Callers contending that they have the prior express consent
   to make prerecorded voice or autodialed calls to cell phones or other
   mobile service numbers should know that they have the burden of proof to
   show that they obtained such consent.

   Prerecorded Voice Messages and Autodialed Calls to Landline Telephones.
   Political prerecorded voice messages or autodialed calls-whether live or
   prerecorded-to most landline telephones are not prohibited, so long as
   they adhere to the identification requirements set forth immediately
   below. However, political prerecorded voice messages or autodialed calls
   to emergency telephone lines; lines in guest or patient rooms at a
   hospital, nursing home, or similar establishment; or toll-free lines are
   prohibited unless the called party has agreed to receive such calls.

   Identification Requirements for Prerecorded Voice Messages. All
   prerecorded voice messages, political and otherwise, that are permissible
   under section 227 and the Commission's rules must include certain
   information to identify the party responsible for the message. In
   particular, all artificial and prerecorded voice messages must state
   clearly at the beginning of the message the identity of the business,
   individual, or other entity that is responsible for initiating the call.
   If a business or other corporate entity is responsible for the call, the
   prerecorded voice message must contain that entity's official business
   name (the name registered with a state corporation commission or other
   regulatory authority). In addition, the telephone number of such business,
   individual, or other entity must be provided either during or after the
   prerecorded voice message.

   Line Seizure by Prerecorded Voice Messages and Autodialed Calls. Automatic
   telephone dialing systems that deliver prerecorded voice messages must
   release the called party's telephone line within five seconds of the time
   that notification is transmitted to the system that the called party has
   hung up. In addition, an automatic telephone dialing system may not be
   used in a way that simultaneously engages two or more telephone lines of a
   multi-line business.

   Senders of political prerecorded voice messages and autodialed calls are
   also reminded that failure to comply with the relevant sections of the
   TCPA and corresponding rules may subject them to enforcement action,
   including monetary forfeitures as high as $16,000 per violation for any
   person who does not hold a license or other authorization issued by the
   Commission.

   Need more information?  For further information regarding requirements for
   prerecorded voice and autodialed calls, contact: Lloyd Collier at (202)
   418-2712 or lloyd.collier@fcc.gov or to Mary Romano at (202) 418-0975 or
   mary.romano@fcc.gov in the Telecommunications Consumers Division,
   Enforcement Bureau. To file a complaint, visit www.fcc.gov/complaints or
   call 1-888-CALLFCC.

   Media inquiries should be directed to Neil Grace at (202) 418-0506 or
   neil.grace@fcc.gov or to Eric Bash at (202)

   418-2057 or eric.bash@fcc.gov.

   To request materials in accessible formats for people with disabilities
   (Braille, large print, electronic files, audio format),

   send an e-mail to fcc504@fcc.gov or call the Consumer & Governmental
   Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY). You may
   also contact the Enforcement Bureau on its TTY line at (202) 418-1148 for
   further information about this Enforcement Advisory, or the FCC on its TTY
   line at 1-888-TELL-FCC (1-888-835-5322) for further information about the
   Telephone Consumer Protection Act.

   Attachments: (1) "At a Glance," Political Calls; (2) Frequently Asked
   Questions.

                                         Issued by: Chief, Enforcement Bureau

                                                                 ATTACHMENT 1

                                 "AT A GLANCE"

                                POLITICAL CALLS

     * Political calls are subject to restrictions governing prerecorded
       voice and autodialed calls.

     * There are no restrictions on live manually-dialed political calls,
       which may be delivered to any landline telephone or cell phone.

     * Political prerecorded voice and autodialed calls may NOT be delivered
       to the following types of landline phones without the prior express
       consent of the called party:

     * any emergency line (including any 911 line and any emergency line of a
       hospital, medical physician or service office, health care facility,
       poison control center, or fire protection or law enforcement agency);

     * the telephone line of any guest room or patient room of a hospital,
       health care facility, elderly home, or similar establishment; or

     * any service for which the called party is charged for the call such as
       toll-free lines.

     * Prerecorded voice and autodialed calls (including live calls,
       prerecorded voice messages, and text messages) may NOT be delivered to
       cell phones, pagers, or other mobile devices without the prior express
       consent of the called party. This restriction governs all prerecorded
       voice and autodialed calls, including political ones.

     * All prerecorded voice messages-including political messages-must
       contain the following information:

     * the name of the person or entity responsible for the call, which must
       be provided at the beginning of the message;

     * the telephone number of the person or entity responsible for the call,
       which must be provided during or after the message.

     * The National Do-Not-Call Registry and company-specific do-not-call
       lists do not apply to political calls.

     * Individuals or entities who do not hold (and are not required to hold)
       FCC licenses responsible for unlawful political prerecorded voice
       messages or autodialed calls may face forfeiture penalties of up to
       $16,000 per violation. (The penalties are higher for FCC licensees,
       like broadcasters, cable operators, and common carriers.)

                                                                 ATTACHMENT 2

                           FREQUENTLY ASKED QUESTIONS

   The following frequently asked questions are addressed in this Enforcement
   Advisory:

     * What are the rules covering political prerecorded voice messages and
       autodialed calls, and where can I find them?

     * What is an autodialed call?

     * Are nonprofit organizations exempt from the prohibition against making
       political prerecorded voice or autodialed calls to cell phones and
       other mobile service numbers?

     * What does it mean to make a prerecorded voice or autodialed call for
       "emergency purposes"?

     * Does the same prohibition against making political autodialed calls to
       cell phones apply to sending political text messages to cell phones?

     * Do the rules allow me to send political prerecorded voice messages to
       a landline telephone number that is registered on the National Do Not
       Call Registry?

     * Before making a political prerecorded voice or autodialed call, how
       can I determine whether the target telephone number is associated with
       a landline phone or a wireless phone?

     * What if I have questions?

   What are the rules covering political prerecorded voice messages and
   autodialed calls, and where can I find them?

   These calls are subject to the general restrictions on prerecorded voice
   messages and autodialed calls, found at 47 U.S.C. S: 227 and 47 C.F.R. S:
   64.1200.

   What is an autodialed call?

   An autodialed call is any type of call or message, including a text
   message, that is made by an "autodialer" or "automatic telephone dialing
   system," which is "equipment which has the capacity to store or produce
   telephone numbers to be called using a random or sequential number
   generator and to dial such numbers." The Commission has emphasized that
   this definition covers any equipment - including predictive dialers - that
   has the specified capacity to dial numbers without human intervention
   whether or not the numbers called actually are randomly or sequentially
   generated or come from calling lists.

   Are nonprofit organizations exempt from the prohibition against making
   political prerecorded voice or autodialed calls to cell phones and other
   mobile service numbers?

   No. Although nonprofit organizations enjoy certain exemptions under the
   TCPA, there is NO blanket exemption that allows nonprofit organizations to
   make either prerecorded voice or autodialed calls to cell phones and other
   mobile service numbers.

   What does it mean to make a prerecorded voice or autodialed call for
   "emergency purposes"?

   Under Commission rules, "emergency purposes means calls made necessary in
   any situation affecting the health and safety of consumers." 47 C.F.R.
   S: 64.1200(f)(4) (formerly codified at 47 C.F.R. S: 64.1200(f)(3)).
   Political prerecorded voice messages and autodialed calls are NOT included
   in this definition.

   Does the same prohibition against making political autodialed calls to
   cell phones apply to sending political text messages to cell phones?

   Yes. The Commission has determined that the prohibition against placing
   autodialed calls to cell phones "encompasses both voice calls and text
   calls to wireless numbers including, for example, short message service
   (SMS) calls, provided the call is made to a telephone number assigned to
   [a wireless] service." Accordingly, only manually placed text messages are
   permissible.

   Do the rules allow me to send political prerecorded voice messages to a
   landline telephone number that is registered on the National Do-Not-Call
   Registry?

   Yes. Political prerecorded voice messages (as well as live political
   calls) are not subject to the National Do-Not-Call Registry because such
   messages (or live calls) do not include telephone solicitations.

   Before making a political prerecorded voice or autodialed call, how can I
   determine whether the target telephone number is associated with a
   landline phone or a wireless phone?

   There are a variety of commercial services that callers may use to
   identify wireless telephone numbers.

   What if I have questions?

   For further information regarding requirements for prerecorded voice and
   autodialed calls, contact one of the following individuals in the
   Telecommunications Consumers Division, Enforcement Bureau: Lloyd Collier
   at (202) 418-2712 or lloyd.collier@fcc.gov or to Mary Romano at (202)
   418-0975 or mary.romano@fcc.gov. To file a complaint, visit
   www.fcc.gov/complaints or call 1-888-CALLFCC.

   Media inquiries should be directed to Neil Grace at (202) 418-0506 or
   neil.grace@fcc.gov or to Eric Bash at (202)

   418-2057 or eric.bash@fcc.gov.

   Telephone Consumer Protection Act of 1991, Pub. L. No. 102-243, 105 Stat.
   2394 (1991) (codified at 47 U.S.C. S: 227).

   47 C.F.R. S: 64.1200.

   By this Enforcement Advisory, the FCC's Enforcement Bureau highlights
   certain obligations under the TCPA and corresponding Commission rules.
   Failure to receive this notice does not absolve an entity of the
   obligation to meet the requirements of the Communications Act of 1934, as
   amended, or the Commission's rules and orders. Companies, individuals, and
   other entities should read the full text of the relevant portions of the
   TCPA and corresponding Commission rules, respectively, at 47 U.S.C. S: 227
   and 47 C.F.R. S: 64.1200. While the citations to 47 C.F.R. S: 64.1200
   provided below are correct as of the date of this advisory, readers should
   be aware that the Commission recently amended certain parts of the TCPA
   rules and renumbered various cited sections. Rules and Regulations
   Implementing the Telephone Consumer Protection Act of 1991, Report and
   Order, 27 FCC Rcd 1830 (2012). These rule revisions have not yet been
   approved by the Office of Management and Budget and most of the renumbered
   rules will not take effect before 2013. The revisions do not substantively
   change provisions involving political calls.

   Letter from Steve Largent, President/CEO, CITA, to FCC Chairman Julius
   Genachowski and Commissioners Mignon Clyburn and Robert M. McDowell (Jan.
   25, 2012).

   See Rules and Regulations Implementing the Telephone Consumer Protection
   Act of 1991, Report and Order, 18 FCC Rcd 14014, 14115 para. 165 (2003)
   (stating that the TCPA and the FCC's rules apply to both voice calls and
   text messages).

   See 47 U.S.C. S: 227(b)(1)(A)(iii); 47 C.F.R. S: 64.1200(a)(1)(iii). These
   provisions also prohibit such calls to any telephone number assigned to a
   paging service, specialized mobile radio service, or other radio common
   carrier service.

   See, e.g., Rules and Regulations Implementing the Telephone Consumer
   Protection Act of 1991, Declaratory Ruling, 23 FCC Rcd 559, 565, para. 10
   (2008) (concluding that creditors and debt collectors claiming prior
   express consent to deliver prerecorded voice or autodialed calls to cell
   phones are responsible for demonstrating such consent was granted); Rules
   and Regulations Implementing the Telephone Consumer Protection Act of
   1991, Report and Order and Third Order on Reconsideration, 21 FCC Rcd
   3787, 3812, para. 46 (2006) (with respect to junk faxes, concluding that
   "[i]n the event a complaint is filed, the burden of proof rests on the
   sender to demonstrate that permission was given").

   Non-emergency prerecorded voice or autodialed calls to such destinations
   are permissible only with the prior express consent of the called party.
   47 U.S.C. S: 227(b)(1)(A); 47 C.F.R. S: 64.1200(a)(1).

   47 U.S.C. S: 227(d)(3)(A)(i); 47 C.F.R. S: 64.1200(b)(1).

   47 C.F.R. S: 64.1200(b)(1).

   Any telephone number so provided may not be for (1) the autodialer or
   prerecorded message player that placed the call, (2) a 900 number, or (3)
   any other number for which charges exceed local or long distance
   transmission charges. 47 C.F.R. S: 64.1200(b)(2).

   47 U.S.C. S: 227(d)(3)(A)(ii); 47 C.F.R. S: 64.1200(b)(2).

   47 U.S.C. S: 227(d)(3)(B); 47 C.F.R. S: 68.318(c).

   47 U.S.C. S: 227(b)(1)(D); 47 C.F.R. S: 64.1200(a)(5) (formerly codified
   at 47 C.F.R. S: 64.1200(a)(4)).

   Section 503(b)(2)(D) of the Act provides for forfeitures of up to $10,000
   for each violation by a person who is not a broadcast station licensee,
   cable operator, common carrier, or applicant for any broadcast station,
   cable operator, or common carrier license issued by the Commission. 47
   U.S.C. S: 503(b)(2)(D). The Commission adjusts this amount for inflation.
   47 C.F.R. S: 1.80(b)(5). The Commission has made such inflation
   adjustments and the current maximum forfeiture is $16,000 for each
   violation under Section 503(b)(2)(D). 47 C.F.R. S: 1.80(b)(5). The
   penalties for broadcast station licensees, cable operators, common
   carriers, and applicants for broadcast station, cable operator, and common
   carrier licenses are higher.

   47 C.F.R. S: 64.1200(f)(2) (formerly codified at 47 C.F.R. S:
   64.1200(f)(1)); see also 47 U.S.C. S: 227(a)(1).

   Rules and Regulations Implementing the Telephone Consumer Protection Act
   of 1991, Report and Order, 18 FCC Rcd 14014, 14092-93, para. 133 (2003).
   Predictive dialers use automated equipment to dial numbers (either from
   lists or randomly or sequentially) and then connect the called party to a
   live person. The distinctive element of a predictive dialer is software
   that predicts calling patterns to minimize the time live agents spend
   between calls while also minimizing the incidence of individuals answering
   a call when no agent is available.

   Rules and Regulations Implementing the Telephone Consumer Protection Act
   of 1991, Report and Order, 18 FCC Rcd 14014, 14115, para. 165 (2003).

   In order to constitute a "telephone solicitation," a call or message must
   be "for the purpose of encouraging the purchase or rental of, or
   investment in, property, goods, or services . . . ." 47 C.F.R. S:
   64.1200(f)(14) (formerly codified at 47 C.F.R. S: 64.1200(f)(12)); see
   also 47 U.S.C. S: 227(a)(4).

   PUBLIC NOTICE

                                  Page 1 of 3

                                  Page 2 of 3

                                  Page 3 of 3

                            FCC ENFORCEMENT ADVISORY

   Federal Communications Commission

   445 12th St., S.W.

   Washington, D.C. 20554

                                        News Media Information 202 / 418-0500

                                                 Internet: http://www.fcc.gov

                                                          TTY: 1-888-835-5322