Before the Federal Communications Commission

In the Matter of
Rules and Regulations Implementing
The Telephone Consumer Protection Act of 1991

Comments of the Center for Democracy and Technology December 9, 2002

The Center for Democracy and Technology is a non-profit, independent public interest organization advocating privacy and free expression on the Internet. CDT congratulates the Federal Communications Commission (FCC), for initiating this review of the rules it promulgated pursuant to the Telephone Consumer Protection Act (TCPA) of 1991. This notice of proposed rulemaking acknowledges the tremendous ongoing changes in telemarketing practices and technologies and is particularly well timed. CDT, therefore, respectfully submits the following comments.

1. The national Do-Not Call list would create an easier and simplified way for consumers to remove their names from telemarketing call lists.

As companies have recognized the growing consumer demand to limit the ability of telemarketers to contact them at home, the private sector has implemented measures to enable consumers to remove their names from telemarketing call lists. The Direct Marketing Association, for example, has instituted a do-not-call list. However, it charges a $5.00 fee, paid by credit card, to exercise this option online. Signing up for the DMA's do-not-call list by mail is free, however, mail registration is generally thought to be more cumbersome and time-consuming, and increases the amount of time required before the individual is placed on the list. States have also passed laws implementing do-not-call lists.

Currently, therefore, consumers must exercise one or several different approaches to remove their names from telemarketing lists. They must (1) sign up for the Direct Marketing Association's do-not-call list; (2) enlist the help of some or all of twenty different state laws that include do-not-call provisions; and/or (3) contact individual companies to direct them to place them on a company-based do-not-call list.

A national do-not-call list would provide the consumer with a streamlined mechanism to remove their name from telemarketing lists. It would lift the burden from consumers who must either use the DMA service or submit do-not-call requests on a company-by-company basis. Importantly, it would obviate the need for consumers to pay a fee to be placed on the do-not-call list.

The more streamlined approach provided by a national list also simplifies the task of informing consumers about how to avoid unwanted telemarketing calls. Under the current system of state, company and DMA do-not-call lists, consumer information and advocacy organizations must guide individuals requesting assistance through a complex maze of options and requirements. A single, national do-not-call resource promises to make it easier to provide guidance to consumers who wish to stop unwanted telemarketing calls.

2. The creation of a national do-not-call registry by the FCC in partnership with the Federal Trade Commission would address the jurisdictional gaps left by the FTC proposed national do-not-call database.

In early 2002, the FTC proposed amending its Telemarketing Sales Rule and the creation of a national do-not-call database. At that time, the FTC recognized that the limits of the FTC's jurisdiction meant that a fairly extensive group of entities would not be covered by the proposed rules. Such entities include credit unions, savings and loans, nonprofit organizations, insurance companies, and banks.

The joint creation and management of a national do-not-call registry would provide the more comprehensive coverage consumers seek in a do-not-call registry. When a consumer registers with a jointly administered registry, he or she would be assured that his request applies to a broader range of institutions that initiate telemarketing calls.

3. The Telephone Consumer Protection Act and the FCC's current rules should form the starting place for policies about telemarketing calls to wireless telephone numbers.

The TCPA and Commission's rules specifically prohibit telemarketing calls to phone numbers assigned to wireless devices, or any service for which the called party is charged for the call, except in emergencies or when the called party has granted specific consent. This rule should form the starting principle for any further decisions made about telemarketing to wireless devices. While cellular phone calling plans specifically involve the purchase of large packages of minutes at a fixed rate, and the marketplace is beginning to experience the migration of telecommunications customers from residential landlines to wireless phones, under no circumstances should consumers assume the cost of telemarketing calls unless they have specifically consented to do so.

4. It is important that the do-not-call list be well publicized and easy for American consumers to locate and register for.

Consumer education will be key to the success of the national do-not-call registry. For the national do-not-call list to accomplish the goals set out in the NPRM, it will be critical that consumers are aware of the service, that it is easy to locate, and easy to use.

We urge that, when the do-not-call list is instituted, the FCC undertake a wide reaching consumer education campaign to raise consumer awareness of this important service.

5. Conclusion.

A national do-not-call list of the kind proposed by the FCC's NPRM would answer a long-felt consumer need for better control over telemarketing calls to the home. In addressing questions about telemarketing to wireless devices, the FCC must look to current rules prohibiting telemarketing calls for which the called party is charged. Critical to the effort to provide American consumers with this important service is widespread consumer education about the list's existence, its usefulness, and the manner in which consumers can register for the service.

CDT looks forward to the implementation of this much anticipated consumer resource.

Respectfully submitted,

Paula J. Bruening
Ari Schwartz
The Center for Democracy and Technology
1634 I Street, NW
Washington, DC 20006
(202) 637-9800

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