PL 102-243
One
Hundred Second Congress of the United States of America
at the First Session
Begun and held at the City of Washington on Thursday,
the third day of January, one thousand nine hundred and ninety-one
An Act
To amend the Communications Act of 1934 to prohibit
certain practices involving the use of telephone equipment.
Be it enacted by the Senate and House of
Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the "Telephone Consumer
Protection Act of 1991".
SEC. 2. FINDINGS.
The Congress finds that:
(1) The use of the telephone to market goods and
services to the home and other businesses is now pervasive due to the
increased use of cost-effective telemarketing techniques.
(2) Over 30,000 businesses actively telemarket goods
and services to business and residential customers.
(3) More than 300,000 solicitors call more than
18,000,000 Americans every day.
(4) Total United States sales generated through
telemarketing amounted to $435,000,000,000 in 1990, a more than
four-fold increase since 1984.
(5) Unrestricted telemarketing, however, can be an
intrusive invasion of privacy and, when an emergency or medical
assistance telephone line is seized, a risk to public safety.
(6) Many consumers are outraged over the
proliferation of intrusive, nuisance calls to their homes from
telemarketers.
(7) Over half the States now have statutes
restricting various uses of the telephone for marketing, but
telemarketers can evade their prohibitions through interstate
operations; therefore, Federal law is needed to control residential
telemarketing practices.
(8) The Constitution does not prohibit restrictions
on commercial telemarketing solicitations.
(9) Individuals' privacy rights, public safety
interests, and commercial freedoms of speech and trade must be balanced
in a way that protects the privacy of individuals and permits legitimate
telemarketing practices.
(10) Evidence compiled by the Congress indicates that
residential telephone subscribers consider automated or prerecorded
telephone calls, regardless of the content or the initiator of the
message, to be a nuisance and an invasion of privacy.
(11) Technologies that might allow consumers to avoid
receiving such calls are not universally available, are costly, are
unlikely to be enforced, or place an inordinate burden on the consumer.
(12) Banning such automated or prerecorded telephone
calls to the home, except when the receiving party consents to receiving
the call or when such calls are necessary in an emergency situation
affecting the health and safety of the consumer, is the only effective
means of protecting telephone consumers from this nuisance and privacy
invasion.
(13) While the evidence presented to the Congress
indicates that automated or prerecorded calls are a nuisance and an
invasion of privacy, regardless of the type of call, the Federal
Communications Commission should have the flexibility to design
different rules for those types of automated or prerecorded calls that
it finds are not considered a nuisance or invasion of privacy, or for
noncommercial calls, consistent with the free speech protections
embodied in the First Amendment of the Constitution.
(14) Businesses also have complained to the Congress
and the Federal Communications Commission that automated or prerecorded
telephone calls are a nuisance, are an invasion of privacy, and
interfere with interstate commerce.
(15) The Federal Communications Commission should
consider adopting reasonable restrictions on automated or prerecorded
calls to businesses as well as to the home, consistent with the
constitutional protections of free speech.
SEC. 3. RESTRICTIONS ON THE USE OF TELEPHONE
EQUIPMENT.
(a) AMENDMENT.—Title II of the Communications Act of
1934 (47 U.S.C. 201 et seq.) is amended by adding at the end the
following new section:
"SEC. 227. RESTRICTIONS ON THE USE OF
TELEPHONE EQUIPMENT.
"(a) DEFINITIONS.
As used in this section—
"(1) The term 'automatic telephone dialing
system' means equipment which has the capacity—
"(A) to store or produce telephone numbers to
be called, using a random or sequential number generator; and
"(B) to dial such numbers.
"(2) The term 'telephone
facsimile machine' means equipment which has the capacity (A) to
transcribe text or images, or both, from paper into an electronic
signal and to transmit that signal over a regular telephone line, or
(B) to transcribe text or images (or both) from an electronic signal
received over a regular telephone line onto paper.
"(3) The term 'telephone solicitation' means the
initiation of a telephone call or message for the purpose of
encouraging the purchase or rental of, or investment in, property,
goods, or services, which is transmitted to any person, but such
term does not include a call or message (A) to any person with that
person's prior express invitation or permission, (B) to any person
with whom the caller has an established business relationship, or
(C) by a tax exempt nonprofit organization.
"(4) The term 'unsolicited advertisement' means
any material advertising the commercial availability or quality of
any property, goods, or services which is transmitted to any person
without that person's prior express invitation or permission.
"(b) RESTRICTIONS
ON THE USE OF AUTOMATED TELEPHONE EQUIPMENT.—
"(1) PROHIBITIONS.—It shall be
unlawful for any person within the United States—
"(A) to make any call (other than a call made
for emergency purposes or made with the prior express consent of
the called party) using any automatic telephone dialing system or
an artificial or prerecorded voice—
"(i) to any emergency telephone line
(including any '911' line and any emergency line of a hospital,
medical physician or service office, health care facility,
poison control center, or fire protection or law enforcement
agency);
"(ii) to the telephone line of any guest room
or patient room of a hospital, health care facility, elderly
home, or similar establishment; or
"(iii) to any telephone number assigned to a
paging service, cellular telephone service, specialized mobile
radio service, or other radio common carrier service, or any
service for which the called party is charged for the call;
"(B) to initiate any telephone call to any
residential telephone line using an artificial or prerecorded
voice to deliver a message without the prior express consent of
the called party, unless the call is initiated for emergency
purposes or is exempted by rule or order by the Commission under
paragraph (2)(B);
"(C) to use any telephone facsimile machine,
computer, or other device to send an unsolicited advertisement to
a telephone facsimile machine; or
"(D) to use an automatic telephone dialing
system in such a way that two or more telephone lines of a
multi-line business are engaged simultaneously.
"(2) REGULATIONS; EXEMPTIONS AND OTHER
PROVISIONS.— The Commission shall prescribe regulations to
implement the requirements of this subsection. In implementing the
requirements of this subsection, the Commission—
"(A) shall consider prescribing regulations to
allow businesses to avoid receiving calls made using an artificial
or prerecorded voice to which they have not given their prior
express consent; and
"(B) may, by rule or order, exempt from the
requirements of paragraph (1)(B) of this subsection, subject to
such conditions as the Commission may prescribe—
"(i) calls that are not made for a commercial
purpose; and
"(ii) such classes or categories of calls
made for commercial purposes as the Commission determines—
"(I) will not adversely affect the privacy
rights that this section is intended to protect; and
"(II) do not include the transmission of
any unsolicited advertisement.
"(3) PRIVATE RIGHT OF ACTION.—A
person or entity may, if otherwise permitted by the laws or rules of
court of a State, bring in an appropriate court of that State—
"(A) an action based on a violation of this
subsection or the regulations prescribed under this subsection to
enjoin such violation,
"(B) an action to recover for actual monetary
loss from such a violation, or to receive $500 in damages for each
such violation, whichever is greater, or
"(C) both such actions.
If the court finds that the defendant willfully
or knowingly violated this subsection or the regulations prescribed
under this subsection, the court may, in its discretion, increase
the amount of the award to an amount equal to not more than 3 times
the amount available under subparagraph (B) of this paragraph.
"(c) PROTECTION OF
SUBSCRIBER PRIVACY RIGHTS.—
"(1) RULEMAKING PROCEEDING REQUIRED.—Within
120 days after the date of enactment of this section, the Commission
shall initiate a rulemaking proceeding concerning the need to
protect residential telephone subscribers' privacy rights to avoid
receiving telephone solicitations to which they object. The
proceeding shall—
"(A) compare and evaluate alternative methods
and procedures (including the use of electronic databases,
telephone network technologies, special directory markings,
industry-based or company-specific 'do not call' systems, and any
other alternatives, individually or in combination) for their
effectiveness in protecting such privacy rights, and in terms of
their cost and other advantages and disadvantages;
"(B) evaluate the categories of public and
private entities that would have the capacity to establish and
administer such methods and procedures;
"(C) consider whether different methods and
procedures may apply for local telephone solicitations, such as
local telephone solicitations of small businesses or holders of
second class mail permits;
"(D) consider whether there is a need for
additional Commission authority to further restrict telephone
solicitations, including those calls exempted under subsection
(a)(3) of this section, and, if such a finding is made and
supported by the record, propose specific restrictions to the
Congress; and
"(E) develop proposed regulations to implement
the methods and procedures that the Commission determines are most
effective and efficient to accomplish the purposes of this
section.
"(2) REGULATIONS.—Not later than
9 months after the date of enactment of this section, the Commission
shall conclude the rulemaking proceeding initiated under paragraph
(1) and shall prescribe regulations to implement methods and
procedures for protecting the privacy rights described in such
paragraph in an efficient, effective, and economic manner and
without the imposition of any additional charge to telephone
subscribers.
"(3) USE OF DATABASE PERMITTED.—The
regulations required by paragraph (2) may require the establishment
and operation of a single national database to compile a list of
telephone numbers of residential subscribers who object to receiving
telephone solicitations, and to make that compiled list and parts
thereof available for purchase. If the Commission determines to
require such a database, such regulations shall—
"(A) specify a method by which the Commission
will select an entity to administer such database;
"(B) require each common carrier providing
telephone exchange service, in accordance with regulations
prescribed by the Commission, to inform subscribers for telephone
exchange service of the opportunity to provide notification, in
accordance with regulations established under this paragraph, that
such subscriber objects to receiving telephone solicitations;
"(C) specify the methods by which each
telephone subscriber shall be informed, by the common carrier that
provides local exchange service to that subscriber, of (i) the
subscriber's right to give or revoke a notification of an
objection under subparagraph (A), and (ii) the methods by which
such right may be exercised by the subscriber;
"(D) specify the methods by which such
objections shall be collected and added to the database;
"(E) prohibit any residential subscriber from
being charged for giving or revoking such notification or for
being included in a database compiled under
this section;
"(F) prohibit any person from making or
transmitting a telephone solicitation to the telephone number of
any subscriber included in such database;
"(G) specify
(i) the methods by which any person desiring
to make or transmit telephone solicitations will obtain access
to the database, by area code or local exchange prefix, as
required to avoid calling the telephone numbers of subscribers
included in such database; and
(ii) the costs to be recovered from such
persons;
"(H) specify the methods for recovering, from
persons accessing such database, the costs involved in
identifying, collecting, updating, disseminating, and selling, and
other activities relating to, the operations of the database that
are incurred by the entities carrying out those activities;
"(I) specify the frequency with which such
database will be updated and specify the method by which such
updating will take effect for purposes of compliance with the
regulations prescribed under this subsection;
"(J) be designed to enable States to use the
database mechanism selected by the Commission for purposes of
administering or enforcing State law;
"(K) prohibit the use of such database for any
purpose other than compliance with the requirements of this
section and any such State law and specify methods for protection
of the privacy rights of persons whose numbers are included in
such database; and
"(L) require each common carrier providing
services to any person for the purpose of making telephone
solicitations to notify such person of the requirements of this
section and the regulations thereunder.
"(4) CONSIDERATIONS REQUIRED FOR USE OF
DATABASE METHOD.—If the Commission determines to require
the database mechanism described in paragraph (3), the Commission
shall—
"(A) in developing procedures for gaining
access to the database, consider the different needs of
telemarketers conducting business on a national, regional, State,
or local level;
"(B) develop a fee schedule or price structure
for recouping the cost of such database that recognizes such
differences and—
"(i) reflect the relative costs of providing
a national, regional, State, or local list of phone numbers of
subscribers who object to receiving telephone solicitations;
"(ii) reflect the relative costs of providing
such lists on paper or electronic media; and
"(iii) not place an unreasonable financial
burden on small businesses; and
"(C) consider (i) whether the needs of
telemarketers operating on a local basis could be met through
special markings of area white pages directories, and (ii) if such
directories are needed as an adjunct to database lists prepared by
area code and local exchange prefix.
"(5) PRIVATE RIGHT OF ACTION.—A
person who has received more than one telephone call within any
12-month period by or on behalf of the same entity in violation of
the regulations prescribed under this subsection may, if otherwise
permitted by the laws or rules of court of a State bring in an
appropriate court of that State—
"(A) an action based on a violation of the
regulations prescribed under this subsection to enjoin such
violation,
"(B) an action to recover for actual monetary
loss from such a violation, or to receive up to $500 in damages
for each such violation, whichever is greater, or
"(C) both such actions.
It shall be an affirmative defense in any action
brought under this paragraph that the defendant has established and
implemented, with due care, reasonable practices and procedures to
effectively prevent telephone solicitations in violation of the
regulations prescribed under this subsection. If the court finds
that the defendant willfully or knowingly violated the regulations
prescribed under this subsection, the court may, in its discretion,
increase the amount of the award to an amount equal to not more than
3 times the amount available under subparagraph (B) of this
paragraph.
"(6) RELATION TO SUBSECTION
(B).—The provisions of this subsection shall not be construed to
permit a communication prohibited by subsection (b).
"(d) TECHNICAL AND PROCEDURAL
STANDARDS.—
"(1) PROHIBITION.—It shall be
unlawful for any person within the United States—
"(A) to initiate any communication using a
telephone facsimile machine, or to make any telephone call using
any automatic telephone dialing system, that does not comply with
the technical and procedural standards prescribed under this
subsection, or to use any telephone facsimile machine or automatic
telephone dialing system in a manner that does not comply with
such standards; or
"(B) to use a computer or
other electronic device to send any message via a telephone
facsimile machine unless such person clearly marks, in a margin at
the top or bottom of each transmitted page of the message or on
the first page of the transmission, the date and time it is sent
and an identification of the business, other entity, or individual
sending the message and the telephone number of the sending
machine or of such business, other entity, or individual.
"(2) TELEPHONE FACSIMILE MACHINES.—The
Commission shall revise the regulations setting technical and
procedural standards for telephone facsimile machines to require
that any such machine which is manufactured after one year after the
date of enactment of this section clearly marks, in a margin at the
top or bottom of each transmitted page or on the first page of each
transmission, the date and time sent, an identification of the
business, other entity, or individual sending the message, and the
telephone number of the sending machine or of such business, other
entity, or individual.
"(3) ARTIFICIAL OR PRERECORDED VOICE
SYSTEMS.—The Commission shall prescribe technical and
procedural standards for systems that are used to transmit any
artificial or prerecorded voice message via telephone. Such
standards shall require that—
"(A) all artificial or prerecorded telephone
messages
(i) shall, at the beginning of the message,
state clearly the identity of the business, individual, or other
entity initiating the call, and
(ii) shall, during or after the message,
state clearly the telephone number or address of such business,
other entity, or individual; and
"(B) any such system will automatically release
the called party's line within 5 seconds of the time notification
is transmitted to the system that the called party has hung up, to
allow the called party's line to be used to make or receive other
calls.
"(e) EFFECT ON STATE
LAW.—
"(1) STATE LAW NOT PREEMPTED.—Except
for the standards prescribed under subsection (d) and subject to
paragraph (2) of this subsection, nothing in this section or in the
regulations prescribed under this section shall preempt any State
law that imposes more restrictive intrastate requirements or
regulations on, or which prohibits—
"(A) the use of telephone facsimile machines or
other electronic devices to send unsolicited advertisements;
"(B) the use of automatic telephone dialing
systems;
"(C) the use of artificial or prerecorded voice
messages; or
"(D) the making of telephone solicitations.
"(2) STATE USE OF DATABASES.—If,
pursuant to subsection (c)(3), the Commission requires the
establishment of a single national database of telephone numbers of
subscribers who object to receiving telephone solicitations, a State
or local authority may not, in its regulation of telephone
solicitations, require the use of any database, list, or listing
system that does not include the part of such single national
datebase [sic.] that relates to such State.
"(f) ACTIONS BY
STATES.—
"(1) AUTHORITY OF STATES.—Whenever
the attorney general of a State, or an official or agency designated
by a State, has reason to believe that any person has engaged or is
engaging in a pattern or practice of telephone calls or other
transmissions to residents of that State in violation of this
section or the regulations prescribed under this section, the State
may bring a civil action on behalf of its residents to enjoin such
calls, an action to recover for actual monetary loss or receive $500
in damages for each violation, or both such actions. If the court
finds the defendant willfully or knowingly violated such
regulations, the court may, in its discretion, increase the amount
of the award to an amount equal to not more than 3 times the amount
available under the preceding sentence.
"(2) EXCLUSIVE JURISDICTION OF FEDERAL
COURTS.—The district courts of the United States, the
United States courts of any territory, and the District Court of the
United States for the District of Columbia shall have exclusive
jurisdiction over all civil actions brought under this subsection.
Upon proper application, such courts shall also have jurisdiction to
issue writs of mandamus, or orders affording like relief, commanding
the defendant to comply with the provisions of this section or
regulations prescribed under this section, including the requirement
that the defendant take such action as is necessary to remove the
danger of such violation. Upon a proper showing, a permanent or
temporary injunction or restraining order shall be granted without
bond.
"(3) RIGHTS OF COMMISSION.—The
State shall serve prior written notice of any such civil action upon
the Commission and provide the Commission with a copy of its
complaint, except in any case where such prior notice is not
feasible, in which case the State shall serve such notice
immediately upon instituting such action. The Commission shall have
the right (A) to intervene in the action, (B) upon so intervening,
to be heard on all matters arising therein, and (C) to file
petitions for appeal.
"(4) VENUE; SERVICE OF PROCESS.—Any
civil action brought under this subsection in a district court of
the United States may be brought in the district wherein the
defendant is found or is an inhabitant or transacts business or
wherein the violation occurred or is occurring, and process in such
cases may be served in any district in which the defendant is an
inhabitant or where the defendant may be found.
"(5) INVESTIGATORY POWERS.—For
purposes of bringing any civil action under this subsection, nothing
in this section shall prevent the attorney general of a State, or an
official or agency designated by a State, from exercising the powers
conferred on the attorney general or such official by the laws of
such State to conduct investigations or to administer oaths or
affirmations or to compel the attendance of witnesses or the
production of documentary and other evidence.
"(6) EFFECT ON STATE COURT PROCEEDINGS.—Nothing
contained in this subsection shall be construed to prohibit an
authorized State official from proceeding in State court on the
basis of an alleged violation of any general civil or criminal
statute of such State.
"(7) LIMITATION.—Whenever the
Commission has instituted a civil action for violation of
regulations prescribed under this section, no State may, during the
pendency of such action instituted by the Commission, subsequently
institute a civil action against any defendant named in the
Commission's complaint for any violation as alleged in the
Commission's complaint.
"(8) DEFINITION.—As used in this
subsection, the term 'attorney general' means the chief legal
officer of a State.".
(b) CONFORMING AMENDMENT.—Section
2(b) of the Communications Act of 1934 (47 U.S.C. 152(b)) is amended
by striking "Except as provided" and all that follows through "and
subject to the provisions" and inserting "Except as provided in
sections 223 through 227, inclusive, and subject to the provisions".
(c) DEADLINE FOR REGULATIONS; EFFECTIVE
DATE.—
(1) REGULATIONS.—The Federal
Communications Commission shall prescribe regulations to implement
the amendments made by this section not later than 9 months after
the date of enactment of this Act.
(2) EFFECTIVE DATE.—The
requirements of section 228 of the Communications Act of 1934 (as
added by this section), other than the authority to prescribe
regulations, shall take effect one year after the date of enactment
of this Act.
SEC. 4. AM RADIO SERVICE.
Section 331 of the Communications Act of 1934 is
amended—
(1) in the heading of such section, by inserting "AND
AM RADIO STATIONS" after "TELEVISION STATIONS";
(2) by inserting "(a) VERY HIGH FREQUENCY STATIONS.—"
after "SEC. 331."; and
(3) by adding at the end the following new
subsection:
"(b) AM RADIO STATIONS.—It shall be the policy of
the Commission, in any case in which the licensee of an existing AM
daytime-only station located in a community with a population of more
than 100,000 persons that lacks a local full-time aural station
licensed to that community and that is located within a Class I
station primary service area notifies the Commission that such
licensee seeks to provide full-time service, to ensure that such a
licensee is able to place a principal community contour signal over
its entire community of license 24 hours a day, if technically
feasible. The Commission shall report to the appropriate committees of
Congress within 30 days after the date of enactment of this Act on how
it intends to meet this policy goal.".
Speaker of the House of Representatives
Vice President of the United States and
President of the Senate
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