Sec.  64.1200   Delivery restrictions.

   Link to an amendment published at  68 FR 44177 , July 25, 2003.

   This amendment was delayed until July 1, 2005, at  69 FR 62816 , Oct. 28,
   2004.

   This amendment was further delayed until Jan. 9, 2006, at  70 FR 37705 , June
   30, 2005.

   (a) No person or entity may:

   (1)  Initiate any telephone call (other than a call made for emergency
   purposes or made with the prior express consent of the called party) using
   an 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.

   (iv) A person will not be liable for violating the prohibition in paragraph
   (a)(1)(iii) when the call is placed to a wireless number that has been
   ported from wireline service and such call is a voice call; not knowingly
   made to a wireless number; and made within 15 days of the porting of the
   number from wireline to wireless service, provided the number is not already
   on  the  national  do-not-call  registry  or caller's company-specific
   do-not-call list.

   (2) Initiate any telephone call to any residential line using an artificial
   or prerecorded voice to deliver a message without the prior express consent
   of the called party, unless the call,

   (i) Is made for emergency purposes,

   (ii) Is not made for a commercial purpose,

   (iii) Is made for a commercial purpose but does not include or introduce an
   unsolicited advertisement or constitute a telephone solicitation,

   (iv) Is made to any person with whom the caller has an established business
   relationship at the time the call is made, or

   (v) Is made by or on behalf of a tax-exempt nonprofit organization.

   (3) Use a telephone facsimile machine, computer, or other device to send an
   unsolicited advertisement to a telephone facsimile machine,

   (i)  For  purposes  of  paragraph  (a)(3) of this section, a facsimile
   advertisement is not “unsolicited” if the recipient has granted the sender
   prior express invitation or permission to deliver the advertisement, as
   evidenced by a signed, written statement that includes the facsimile number
   to  which  any  advertisements  may  be sent and clearly indicates the
   recipient's  consent to receive such facsimile advertisements from the
   sender.

   (ii) A facsimile broadcaster will be liable for violations of paragraph
   (a)(3) of this section if it demonstrates a high degree of involvement in,
   or  actual notice of, the unlawful activity and fails to take steps to
   prevent such facsimile transmissions.

   (4) Use an automatic telephone dialing system in such a way that two or more
   telephone lines of a multi-line business are engaged simultaneously.

   (5) Disconnect an unanswered telemarketing call prior to at least 15 seconds
   or four (4) rings.

   (6) Abandon more than three percent of all telemarketing calls that are
   answered  live  by  a person, measured over a 30-day period. A call is
   “abandoned” if it is not connected to a live sales representative within two
   (2) seconds of the called person's completed greeting. Whenever a sales
   representative is not available to speak with the person answering the call,
   that person must receive, within two (2) seconds after the called person's
   completed greeting, a prerecorded identification message that states only
   the name and telephone number of the business, entity, or individual on
   whose behalf the call was placed, and that the call was for “telemarketing
   purposes.” The telephone number so provided must permit any individual to
   make a do-not-call request during regular business hours for the duration of
   the telemarketing campaign. The telephone number may not be a 900 number or
   any  other  number  for  which  charges  exceed local or long distance
   transmission charges. The seller or telemarketer must maintain records
   establishing compliance with paragraph (a)(6) of this section.

   (i)  A  call for telemarketing purposes that delivers an artificial or
   prerecorded voice message to a residential telephone line that is assigned
   to a person who either has granted prior express consent for the call to be
   made or has an established business relationship with the caller shall not
   be considered an abandoned call if the message begins within two (2) seconds
   of the called person's completed greeting.

   (ii) Calls made by or on behalf of tax-exempt nonprofit organizations are
   not covered by paragraph (a)(6) of this section.

   (7) Use any technology to dial any telephone number for the purpose of
   determining whether the line is a facsimile or voice line.

   (b) All artificial or prerecorded telephone messages shall:

   (1) At the beginning of the message, state clearly the identity of the
   business, individual, or other entity that is responsible for initiating the
   call. If a business is responsible for initiating the call, the name under
   which  the  entity  is  registered  to conduct business with the State
   Corporation Commission (or comparable regulatory authority) must be stated,
   and

   (2) During or after the message, state clearly the telephone number (other
   than that of the autodialer or prerecorded message player that placed the
   call) of such business, other entity, or individual. The telephone number
   provided may not be a 900 number or any other number for which charges
   exceed  local or long distance transmission charges. For telemarketing
   messages to residential telephone subscribers, such telephone number must
   permit any individual to make a do-not-call request during regular business
   hours for the duration of the telemarketing campaign.

   (c)  No person or entity shall initiate any telephone solicitation, as
   defined in paragraph (f)(9) of this section, to:

   (1) Any residential telephone subscriber before the hour of 8 a.m. or after
   9 p.m. (local time at the called party's location), or

   (2)  A  residential telephone subscriber who has registered his or her
   telephone number on the national do-not-call registry of persons who do not
   wish to receive telephone solicitations that is maintained by the federal
   government. Such do-not-call registrations must be honored for a period of 5
   years. Any person or entity making telephone solicitations (or on whose
   behalf telephone solicitations are made) will not be liable for violating
   this requirement if:

   (i) It can demonstrate that the violation is the result of error and that as
   part of its routine business practice, it meets the following standards:

   (A)  Written  procedures.  It  has established and implemented written
   procedures to comply with the national do-not-call rules;

   (B) Training of personnel. It has trained its personnel, and any entity
   assisting in its compliance, in procedures established pursuant to the
   national do-not-call rules;

   (C) Recording. It has maintained and recorded a list of telephone numbers
   that the seller may not contact;

   (D)  Accessing the national do-not-call database. It uses a process to
   prevent  telephone  solicitations  to any telephone number on any list
   established pursuant to the do-not-call rules, employing a version of the
   national  do-not-call  registry obtained from the administrator of the
   registry  no more than 31 days prior to the date any call is made, and
   maintains records documenting this process.

   Note   to   paragraph   (c)(2)(i)(D):  The  requirement  in  paragraph
   64.1200(c)(2)(i)(D) for persons or entities to employ a version of the
   national do-not-call registry obtained from the administrator no more than
   31 days prior to the date any call is made is effective January 1, 2005.
   Until January 1, 2005, persons or entities must continue to employ a version
   of the registry obtained from the administrator of the registry no more than
   three months prior to the date any call is made.

   (E) Purchasing the national do-not-call database. It uses a process to
   ensure that it does not sell, rent, lease, purchase or use the national
   do-not-call database, or any part thereof, for any purpose except compliance
   with this section and any such state or federal law to prevent telephone
   solicitations to telephone numbers registered on the national database. It
   purchases access to the relevant do-not-call data from the administrator of
   the national database and does not participate in any arrangement to share
   the cost of accessing the national database, including any arrangement with
   telemarketers who may not divide the costs to access the national database
   among various client sellers; or

   (ii)  It  has  obtained  the  subscriber's prior express invitation or
   permission. Such permission must be evidenced by a signed, written agreement
   between the consumer and seller which states that the consumer agrees to be
   contacted by this seller and includes the telephone number to which the
   calls may be placed; or

   (iii) The telemarketer making the call has a personal relationship with the
   recipient of the call.

   (d) No person or entity shall initiate any call for telemarketing purposes
   to a residential telephone subscriber unless such person or entity has
   instituted procedures for maintaining a list of persons who request not to
   receive telemarketing calls made by or on behalf of that person or entity.
   The procedures instituted must meet the following minimum standards:

   (1) Written policy. Persons or entities making calls for telemarketing
   purposes must have a written policy, available upon demand, for maintaining
   a do-not-call list.

   (2) Training of personnel engaged in telemarketing. Personnel engaged in any
   aspect of telemarketing must be informed and trained in the existence and
   use of the do-not-call list.

   (3) Recording, disclosure of do-not-call requests. If a person or entity
   making a call for telemarketing purposes (or on whose behalf such a call is
   made) receives a request from a residential telephone subscriber not to
   receive calls from that person or entity, the person or entity must record
   the request and place the subscriber's name, if provided, and telephone
   number on the do-not-call list at the time the request is made. Persons or
   entities making calls for telemarketing purposes (or on whose behalf such
   calls are made) must honor a residential subscriber's do-not-call request
   within a reasonable time from the date such request is made. This period may
   not exceed thirty days from the date of such request. If such requests are
   recorded or maintained by a party other than the person or entity on whose
   behalf the telemarketing call is made, the person or entity on whose behalf
   the telemarketing call is made will be liable for any failures to honor the
   do-not-call request. A person or entity making a call for telemarketing
   purposes must obtain a consumer's prior express permission to share or
   forward the consumer's request not to be called to a party other than the
   person  or  entity  on whose behalf a telemarketing call is made or an
   affiliated entity.

   (4) Identification of sellers and telemarketers. A person or entity making a
   call for telemarketing purposes must provide the called party with the name
   of the individual caller, the name of the person or entity on whose behalf
   the call is being made, and a telephone number or address at which the
   person or entity may be contacted. The telephone number provided may not be
   a 900 number or any other number for which charges exceed local or long
   distance transmission charges.

   (5) Affiliated persons or entities. In the absence of a specific request by
   the subscriber to the contrary, a residential subscriber's do-not-call
   request shall apply to the particular business entity making the call (or on
   whose behalf a call is made), and will not apply to affiliated entities
   unless the consumer reasonably would expect them to be included given the
   identification of the caller and the product being advertised.

   (6) Maintenance of do-not-call lists. A person or entity making calls for
   telemarketing purposes must maintain a record of a consumer's request not to
   receive further telemarketing calls. A do-not-call request must be honored
   for 5 years from the time the request is made.

   (7) Tax-exempt nonprofit organizations are not required to comply with
   64.1200(d).

   (e)  The  rules set forth in paragraph (c) and (d) of this section are
   applicable  to  any person or entity making telephone solicitations or
   telemarketing calls to wireless telephone numbers to the extent described in
   the Commission's Report and Order, CG Docket No. 02–278, FCC 03–153, “Rules
   and  Regulations Implementing the Telephone Consumer Protection Act of
   1991.”

   (f) As used in this section:

   (1)  The  terms automatic telephone dialing system and autodialer mean
   equipment which has the capacity to store or produce telephone numbers to be
   called  using a random or sequential number generator and to dial such
   numbers.

   (2) The term emergency purposes means calls made necessary in any situation
   affecting the health and safety of consumers.

   (3) The term established business relationship means a prior or existing
   relationship formed by a voluntary two-way communication between a person or
   entity  and  a  residential  subscriber with or without an exchange of
   consideration, on the basis of the subscriber's purchase or transaction with
   the entity within the eighteen (18) months immediately preceding the date of
   the  telephone  call  or  on  the basis of the subscriber's inquiry or
   application regarding products or services offered by the entity within the
   three months immediately preceding the date of the call, which relationship
   has not been previously terminated by either party.

   (i) The subscriber's seller-specific do-not-call request, as set forth in
   paragraph  (d)(3)  of this section, terminates an established business
   relationship for purposes of telemarketing and telephone solicitation even
   if the subscriber continues to do business with the seller.

   (ii) The subscriber's established business relationship with a particular
   business entity does not extend to affiliated entities unless the subscriber
   would reasonably expect them to be included given the nature and type of
   goods  or  services  offered  by the affiliate and the identity of the
   affiliate.

   Note to paragraph (f)(3): Paragraph 64.1200(f)(3) is stayed as of October
   14, 2003, as it applies to the time limitations on facsimile advertisements.
   The Federal Communications Commission will publish a document in the Federal
   Register when the stay is lifted.

   (4) The term facsimile broadcaster means a person or entity that transmits
   messages to telephone facsimile machines on behalf of another person or
   entity for a fee.

   (5) The term seller means the person or entity on whose behalf a telephone
   call or message is initiated for the purpose of encouraging the purchase or
   rental  of,  or  investment in, property, goods, or services, which is
   transmitted to any person.

   (6)  The term telemarketer means the person or entity that initiates 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.

   (7) The term telemarketing 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.

   (8) The term telephone facsimile machine means equipment which has the
   capacity  to  transcribe  text  or images, or both, from paper into an
   electronic signal and to transmit that signal over a regular telephone line,
   or to transcribe text or images (or both) from an electronic signal received
   over a regular telephone line onto paper.

   (9) 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:

   (i) To any person with that person's prior express invitation or permission;

   (ii)  To  any  person with whom the caller has an established business
   relationship; or

   (iii) By or on behalf of a tax-exempt nonprofit organization.

   (10) 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.

   (11) The term personal relationship means any family member, friend, or
   acquaintance of the telemarketer making the call.

   (g) Beginning January 1, 2004, common carriers shall:

   (1) When providing local exchange service, provide an annual notice, via an
   insert  in  the  subscriber's  bill,  of the right to give or revoke a
   notification of an objection to receiving telephone solicitations pursuant
   to the national do-not-call database maintained by the federal government
   and the methods by which such rights may be exercised by the subscriber. The
   notice must be clear and conspicuous and include, at a minimum, the Internet
   address and toll-free number that residential telephone subscribers may use
   to register on the national database.

   (2) When providing service to any person or entity for the purpose of making
   telephone solicitations, make a one-time notification to such person or
   entity of the national do-not-call requirements, including, at a minimum,
   citation  to  47  CFR  64.1200 and 16 CFR 310. Failure to receive such
   notification will not serve as a defense to any person or entity making
   telephone solicitations from violations of this section.

   (h)  The  administrator  of  the national do-not-call registry that is
   maintained by the federal government shall make the telephone numbers in the
   database available to the States so that a State may use the telephone
   numbers that relate to such State as part of any database, list or listing
   system  maintained  by  such  State  for  the  regulation of telephone
   solicitations.

   [ 68 FR 44177 , July 25, 2003, as amended at  68 FR 59131 , Oct. 14, 2003;  69 FR 60316 , Oct. 8, 2004;  70 FR 19337 , Apr. 13, 2005]

   Effective  Date Note:   1. At  68 FR 44177 , July 25, 2003,  Sec. 64.1200 was
   revised. Paragraph (a)(3)(i) will become effective Jan. 1, 2005. At  69 FR 62816 , Oct. 28, 2004, the effective date was delayed until July 1, 2005. At
    70 FR 37705 , June 30, 2005,  Sec. 64.1200, paragraph (a)(3)(i) was further
   delayed until Jan. 9, 2006.

   2. At  68 FR 59130 , Oct. 14, 2003, paragraph (f)(3) was stayed.