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TITLE 47--TELEGRAPHS, TELEPHONES, AND RADIOTELEGRAPHS
CHAPTER 5--WIRE OR RADIO COMMUNICATION
SUBCHAPTER II--COMMON CARRIERS
Sec. 227. Restrictions on 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 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;
(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;
(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; and
(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.
(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) of this section.
(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
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 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) of this
section 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) of this section, 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 database 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) ``Attorney general'' defined
As used in this subsection, the term ``attorney general'' means
the chief legal officer of a State.
(June 19, 1934, ch. 652, title II, Sec. 227, as added Dec. 20, 1991,
Pub. L. 102-243, Sec. 3(a), 105 Stat. 2395; amended Oct. 28, 1992, Pub.
L. 102-556, title IV, Sec. 402, 106 Stat. 4194; Oct. 25, 1994, Pub. L.
103-414, title III, Sec. 303(a)(11), (12), 108 Stat. 4294.)
Amendments
1994--Subsec. (b)(2)(C). Pub. L. 103-414, Sec. 303(a)(11),
substituted ``paragraph'' for ``paragraphs''.
Subsec. (e)(2). Pub. L. 103-414, Sec. 303(a)(12), substituted
``national database'' for ``national datebase'' after ``such single''.
1992--Subsec. (b)(2)(C). Pub. L. 102-556 added subpar. (C).
Effective Date; Deadline for Regulations
Section 3(c) of Pub. L. 102-243, as amended by Pub. L. 102-556,
title I, Sec. 102, Oct. 28, 1992, 106 Stat. 4186, provided that:
``(1) Regulations.--The Federal Communications Commission shall
prescribe regulations to implement the amendments made by this section
[enacting this section and amending section 152 of this title] not later
than 9 months after the date of enactment of this Act [Dec. 20, 1991].
``(2) Effective date.--The requirements of section 227 of the
Communications Act of 1934 [this section] (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 [Dec. 20, 1991].''
Congressional Statement of Findings
Section 2 of Pub. L. 102-243 provided that: ``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.''
Section Referred to in Other Sections
This section is referred to in section 152 of this title.
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