Difference between revisions of "Telephone Consumer Protection Act of 1991"

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{{Law
 
{{Law
 
|Short title=Telephone Consumer Protection Act of 1991
 
|Short title=Telephone Consumer Protection Act of 1991
−
|Official text=https://www.govinfo.gov/content/pkg/FR-2016-11-16/pdf/2016-24745.pdf
+
|Official text=https://www.congress.gov/bill/102nd-congress/senate-bill/1462/text
 
|Country/Jurisdiction=United States
 
|Country/Jurisdiction=United States
−
|Regulatory bodies=United States Congress
+
|Regulatory bodies=FCC
 
|Date enacted=1991
 
|Date enacted=1991
 
|Scope of the law=Business, Consumers
 
|Scope of the law=Business, Consumers
 +
|Short summary introduction=The Communications Act of 1934 was amended by the Telephone Consumer Protection Act of 1991.
 +
|Text of the law=::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 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.'.
 
|Categories of personal information covered=Communication
 
|Categories of personal information covered=Communication
−
|Short summary introduction=The Communications Act of 1934 was amended by the Telephone Consumer Protection Act of 1991.
 
−
|Text of the law=47 U.S. Code § 227.Restrictions on use of telephone equipment
 
−
 
−
(b)Restrictions on use of automated telephone equipment
 
−
 
−
(1)Prohibitions
 
−
 
−
It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is 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, unless such call is made solely to collect a debt owed to or guaranteed by the United States;
 
−
 
−
(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, is made solely pursuant to the collection of a debt owed to or guaranteed by the United States, 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, to a telephone facsimile machine, an unsolicited advertisement, unless—
 
−
 
−
(i)the unsolicited advertisement is from a sender with an established business relationship with the recipient;
 
−
 
−
(ii)the sender obtained the number of the telephone facsimile machine through—
 
−
 
−
(I)the voluntary communication of such number, within the context of such established business relationship, from the recipient of the unsolicited advertisement, or
 
−
 
−
(II)a directory, advertisement, or site on the Internet to which the recipient voluntarily agreed to make available its facsimile number for public distribution,
 
−
 
−
except that this clause shall not apply in the case of an unsolicited advertisement that is sent based on an established business relationship with the recipient that was in existence before July 9, 2005, if the sender possessed the facsimile machine number of the recipient before July 9, 2005; and
 
−
 
−
(iii)the unsolicited advertisement contains a notice meeting the requirements under paragraph (2)(D),
 
−
except that the exception under clauses (i) and (ii) shall not apply with respect to an unsolicited advertisement sent to a telephone facsimile machine by a sender to whom a request has been made not to send future unsolicited advertisements to such telephone facsimile machine that complies with the requirements under paragraph (2)(E); 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;
 
−
 
−
(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;
 
−
 
−
(C)may, by rule or order, exempt from the requirements of paragraph (1)(A)(iii) of this subsection calls to a telephone number assigned to a cellular telephone service that are not charged to the called party, subject to such conditions as the Commission may prescribe as necessary in the interest of the privacy rights this section is intended to protect;
 
−
 
−
(D)shall provide that a notice contained in an unsolicited advertisement complies with the requirements under this subparagraph only if—
 
−
 
−
(i)the notice is clear and conspicuous and on the first page of the unsolicited advertisement;
 
−
 
−
(ii)the notice states that the recipient may make a request to the sender of the unsolicited advertisement not to send any future unsolicited advertisements to a telephone facsimile machine or machines and that failure to comply, within the shortest reasonable time, as determined by the Commission, with such a request meeting the requirements under subparagraph (E) is unlawful;
 
−
 
−
(iii)the notice sets forth the requirements for a request under subparagraph (E);
 
−
 
−
(iv)the notice includes—
 
−
 
−
(I)a domestic contact telephone and facsimile machine number for the recipient to transmit such a request to the sender; and
 
−
 
−
(II)a cost-free mechanism for a recipient to transmit a request pursuant to such notice to the sender of the unsolicited advertisement; the Commission shall by rule require the sender to provide such a mechanism and may, in the discretion of the Commission and subject to such conditions as the Commission may prescribe, exempt certain classes of small business senders, but only if the Commission determines that the costs to such class are unduly burdensome given the revenues generated by such small businesses;
 
−
 
−
(v)the telephone and facsimile machine numbers and the cost-free mechanism set forth pursuant to clause (iv) permit an individual or business to make such a request at any time on any day of the week; and
 
−
 
−
(vi)the notice complies with the requirements of subsection (d);
 
−
 
−
(E)shall provide, by rule, that a request not to send future unsolicited advertisements to a telephone facsimile machine complies with the requirements under this subparagraph only if—
 
−
 
−
(i)the request identifies the telephone number or numbers of the telephone facsimile machine or machines to which the request relates;
 
−
 
−
(ii)the request is made to the telephone or facsimile number of the sender of such an unsolicited advertisement provided pursuant to subparagraph (D)(iv) or by any other method of communication as determined by the Commission; and
 
−
 
−
(iii)the person making the request has not, subsequent to such request, provided express invitation or permission to the sender, in writing or otherwise, to send such advertisements to such person at such telephone facsimile machine;
 
−
 
−
(F)may, in the discretion of the Commission and subject to such conditions as the Commission may prescribe, allow professional or trade associations that are tax-exempt nonprofit organizations to send unsolicited advertisements to their members in furtherance of the association’s tax-exempt purpose that do not contain the notice required by paragraph (1)(C)(iii), except that the Commission may take action under this subparagraph only—
 
−
 
−
(i)by regulation issued after public notice and opportunity for public comment; and
 
−
 
−
(ii)if the Commission determines that such notice required by paragraph (1)(C)(iii) is not necessary to protect the ability of the members of such associations to stop such associations from sending any future unsolicited advertisements;
 
−
 
−
(G) (i)may, consistent with clause (ii), limit the duration of the existence of an established business relationship, however, before establishing any such limits, the Commission shall—
 
−
 
−
(I)determine whether the existence of the exception under paragraph (1)(C) relating to an established business relationship has resulted in a significant number of complaints to the Commission regarding the sending of unsolicited advertisements to telephone facsimile machines;
 
−
 
−
(II)determine whether a significant number of any such complaints involve unsolicited advertisements that were sent on the basis of an established business relationship that was longer in duration than the Commission believes is consistent with the reasonable expectations of consumers;
 
−
 
−
(III)evaluate the costs to senders of demonstrating the existence of an established business relationship within a specified period of time and the benefits to recipients of establishing a limitation on such established business relationship; and
 
−
 
−
(IV)determine whether with respect to small businesses, the costs would not be unduly burdensome; and
 
−
 
−
(ii)may not commence a proceeding to determine whether to limit the duration of the existence of an established business relationship before the expiration of the 3-month period that begins on July 9, 2005;
 
−
 
−
(H)may restrict or limit the number and duration of calls made to a telephone number assigned to a cellular telephone service to collect a debt owed to or guaranteed by the United States; and
 
−
 
−
(I)shall ensure that any exemption under subparagraph (B) or (C) contains requirements for calls made in reliance on the exemption with respect to—
 
−
 
−
(i)the classes of parties that may make such calls;
 
−
 
−
(ii)the classes of parties that may be called; and
 
−
 
−
(iii)the number of such calls that a calling party may make to a particular called party.
 
−
 
−
(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 December 20, 1991, 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 December 20, 1991, 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)ProhibitionIt 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 December 20, 1991, 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 systemsThe 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)Prohibition on provision of misleading or inaccurate caller identification information
 
−
 
−
{{SectionHarm|Section=(1)In general|Harms=Distortion}}
 
−
 
−
It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States, in connection with any voice service or text messaging service, to cause any caller identification service to knowingly transmit misleading or inaccurate caller identification information with the intent to defraud, cause harm, or wrongfully obtain anything of value, unless such transmission is exempted pursuant to paragraph (3)(B).
 
−
 
−
(2)Protection for blocking caller identification information
 
−
 
−
Nothing in this subsection may be construed to prevent or restrict any person from blocking the capability of any caller identification service to transmit caller identification information.
 
 
}}
 
}}

Revision as of 03:40, 30 October 2020

Telephone Consumer Protection Act of 1991
Short Title Telephone Consumer Protection Act of 1991
Official Text Telephone Consumer Protection Act of 1991
Country/Jurisdiction United States
State or Province
Regulatory Bodies FCC
Date Enacted 1991
Scope of the Law Business, Consumers
Information
Taxonomy Decisional Interference, Insecurity, Intrusion
Strategies
Template:Ad
Template:United StatesAd

The Communications Act of 1934 was amended by the Telephone Consumer Protection Act of 1991.

Text of the law

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 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.'.



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