Text: S.1462 — 102nd Congress (1991-1992)All Information (Except Text)

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--S.1462--
S.1462
One Hundred Second Congress of the United States of America
AT THE FIRST SESSION
Begun and held at the City of Washington on Thursday, the third day of January,
one thousand nine hundred and ninety-one
An Act
To amend the Communications Act of 1934 to prohibit certain practices
involving the
use of telephone equipment.
 Be it enacted by the Senate and House of Representatives of the United
 States of America in Congress assembled,
SECTION 1. SHORT TITLE.
 This Act may be cited as the `Telephone Consumer Protection Act of 1991'.
SEC. 2. FINDINGS.
 The Congress finds that:
 (1) The use of the telephone to market goods and services to the home and
 other businesses is now pervasive due to the increased use of cost-effective
 telemarketing techniques.
 (2) Over 30,000 businesses actively telemarket goods and services to business
 and residential customers.
 (3) More than 300,000 solicitors call more than 18,000,000 Americans
 every day.
 (4) Total United States sales generated through telemarketing amounted to
 $435,000,000,000 in 1990, a more than four-fold increase since 1984.
 (5) Unrestricted telemarketing, however, can be an intrusive invasion of
 privacy and, when an emergency or medical assistance telephone line is
 seized, a risk to public safety.
 (6) Many consumers are outraged over the proliferation of intrusive,
 nuisance calls to their homes from telemarketers.
 (7) Over half the States now have statutes restricting various uses of the
 telephone for marketing, but telemarketers can evade their prohibitions
 through interstate operations; therefore, Federal law is needed to control
 residential telemarketing practices.
 (8) The Constitution does not prohibit restrictions on commercial
 telemarketing solicitations.
 (9) Individuals' privacy rights, public safety interests, and commercial
 freedoms of speech and trade must be balanced in a way that protects the
 privacy of individuals and permits legitimate telemarketing practices.
 (10) Evidence compiled by the Congress indicates that residential telephone
 subscribers consider automated or prerecorded telephone calls, regardless
 of the content or the initiator of the message, to be a nuisance and an
 invasion of privacy.
 (11) Technologies that might allow consumers to avoid receiving such calls
 are not universally available, are costly, are unlikely to be enforced,
 or place an inordinate burden on the consumer.
 (12) Banning such automated or prerecorded telephone calls to the home,
 except when the receiving party consents to receiving the call or when
 such calls are necessary in an emergency situation affecting the health and
 safety of the consumer, is the only effective means of protecting telephone
 consumers from this nuisance and privacy invasion.
 (13) While the evidence presented to the Congress indicates that automated
 or prerecorded calls are a nuisance and an invasion of privacy, regardless
 of the type of call, the Federal Communications Commission should have
 the flexibility to design different rules for those types of automated or
 prerecorded calls that it finds are not considered a nuisance or invasion
 of privacy, or for noncommercial calls, consistent with the free speech
 protections embodied in the First Amendment of the Constitution.
 (14) Businesses also have complained to the Congress and the Federal
 Communications Commission that automated or prerecorded telephone calls are a
 nuisance, are an invasion of privacy, and interfere with interstate commerce.
 (15) The Federal Communications Commission should consider adopting reasonable
 restrictions on automated or prerecorded calls to businesses as well as to
 the home, consistent with the constitutional protections of free speech.
SEC. 3. RESTRICTIONS ON THE USE OF TELEPHONE EQUIPMENT.
 (a) AMENDMENT- Title II of the Communications Act of 1934 (47 U.S.C. 201
 et seq.) is amended by adding at the end the following new section:
`SEC. 227. RESTRICTIONS ON THE USE OF TELEPHONE EQUIPMENT.
 `(a) DEFINITIONS- As used in this section--
 `(1) The term `automatic telephone dialing system' means equipment which
 has the capacity--
 `(A) to store or produce telephone numbers to be called, using a random or
 sequential number generator; and
 `(B) to dial such numbers.
 `(2) The term `telephone facsimile machine' means equipment which has
 the capacity (A) to transcribe text or images, or both, from paper into an
 electronic signal and to transmit that signal over a regular telephone line,
 or (B) to transcribe text or images (or both) from an electronic signal
 received over a regular telephone line onto paper.
 `(3) The term `telephone solicitation' means the initiation of a telephone
 call or message for the purpose of encouraging the purchase or rental of,
 or investment in, property, goods, or services, which is transmitted to
 any person, but such term does not include a call or message (A) to any
 person with that person's prior express invitation or permission, (B) to
 any person with whom the caller has an established business relationship,
 or (C) by a tax exempt nonprofit organization.
 `(4) The term `unsolicited advertisement' means any material advertising
 the commercial availability or quality of any property, goods, or services
 which is transmitted to any person without that person's prior express
 invitation or permission.
 `(b) Restrictions on the Use of Automated Telephone Equipment-
 `(1) PROHIBITIONS- It shall be unlawful for any person within the United
 States--
 `(A) to make any call (other than a call made for emergency purposes or
 made with the prior express consent of the called party) using any automatic
 telephone dialing system or an artificial or prerecorded voice--
 `(i) to any emergency telephone line (including any `911' line and any
 emergency line of a hospital, medical physician or service office, health
 care facility, poison control center, or fire protection or law enforcement
 agency);
 `(ii) to the telephone line of any guest room or patient room of a hospital,
 health care facility, elderly home, or similar establishment; or
 `(iii) to any telephone number assigned to a paging service, cellular
 telephone service, specialized mobile radio service, or other radio common
 carrier service, or any service for which the called party is charged for
 the call;
 `(B) to initiate any telephone call to any residential telephone line
 using an artificial or prerecorded voice to deliver a message without the
 prior express consent of the called party, unless the call is initiated
 for emergency purposes or is exempted by rule or order by the Commission
 under paragraph (2)(B);
 `(C) to use any telephone facsimile machine, computer, or other device to
 send an unsolicited advertisement to a telephone facsimile machine; or
 `(D) to use an automatic telephone dialing system in such a way that two
 or more telephone lines of a multi-line business are engaged simultaneously.
 `(2) REGULATIONS; EXEMPTIONS AND OTHER PROVISIONS- The Commission shall
 prescribe regulations to implement the requirements of this subsection. In
 implementing the requirements of this subsection, the Commission--
 `(A) shall consider prescribing regulations to allow businesses to avoid
 receiving calls made using an artificial or prerecorded voice to which they
 have not given their prior express consent; and
 `(B) may, by rule or order, exempt from the requirements of paragraph
 (1)(B) of this subsection, subject to such conditions as the Commission
 may prescribe--
 `(i) calls that are not made for a commercial purpose; and
 `(ii) such classes or categories of calls made for commercial purposes as
 the Commission determines--
 `(I) will not adversely affect the privacy rights that this section is
 intended to protect; and
 `(II) do not include the transmission of any unsolicited advertisement.
 `(3) PRIVATE RIGHT OF ACTION- A person or entity may, if otherwise permitted
 by the laws or rules of court of a State, bring in an appropriate court of
 that State--
 `(A) an action based on a violation of this subsection or the regulations
 prescribed under this subsection to enjoin such violation,
 `(B) an action to recover for actual monetary loss from such a violation, or
 to receive $500 in damages for each such violation, whichever is greater, or
 `(C) both such actions.
If the court finds that the defendant willfully or knowingly violated this
subsection or the regulations prescribed under this subsection, the court
may, in its discretion, increase the amount of the award to an amount equal
to not more than 3 times the amount available under subparagraph (B) of
this paragraph.
 `(c) Protection of Subscriber Privacy Rights-
 `(1) RULEMAKING PROCEEDING REQUIRED- Within 120 days after the date of
 enactment of this section, the Commission shall initiate a rulemaking
 proceeding concerning the need to protect residential telephone subscribers'
 privacy rights to avoid receiving telephone solicitations to which they
 object. The proceeding shall--
 `(A) compare and evaluate alternative methods and procedures (including
 the use of electronic databases, telephone network technologies, special
 directory markings, industry-based or company-specific `do not call'
 systems, and any other alternatives, individually or in combination) for
 their effectiveness in protecting such privacy rights, and in terms of
 their cost and other advantages and disadvantages;
 `(B) evaluate the categories of public and private entities that would have
 the capacity to establish and administer such methods and procedures;
 `(C) consider whether different methods and procedures may apply for local
 telephone solicitations, such as local telephone solicitations of small
 businesses or holders of second class mail permits;
 `(D) consider whether there is a need for additional Commission authority
 to further restrict telephone solicitations, including those calls exempted
 under subsection (a)(3) of this section, and, if such a finding is made and
 supported by the record, propose specific restrictions to the Congress; and
 `(E) develop proposed regulations to implement the methods and procedures
 that the Commission determines are most effective and efficient to accomplish
 the purposes of this section.
 `(2) REGULATIONS- Not later than 9 months after the date of enactment
 of this section, the Commission shall conclude the rulemaking proceeding
 initiated under paragraph (1) and shall prescribe regulations to implement
 methods and procedures for protecting the privacy rights described in such
 paragraph in an efficient, effective, and economic manner and without the
 imposition of any additional charge to telephone subscribers.
 `(3) USE OF DATABASE PERMITTED- The regulations required by paragraph (2)
 may require the establishment and operation of a single national database to
 compile a list of telephone numbers of residential subscribers who object
 to receiving telephone solicitations, and to make that compiled list and
 parts thereof available for purchase. If the Commission determines to
 require such a database, such regulations shall--
 `(A) specify a method by which the Commission will select an entity to
 administer such database;
 `(B) require each common carrier providing telephone exchange service,
 in accordance with regulations prescribed by the Commission, to inform
 subscribers for telephone exchange service of the opportunity to provide
 notification, in accordance with regulations established under this paragraph,
 that such subscriber objects to receiving telephone solicitations;
 `(C) specify the methods by which each telephone subscriber shall be
 informed, by the common carrier that provides local exchange service to that
 subscriber, of (i) the subscriber's right to give or revoke a notification
 of an objection under subparagraph (A), and (ii) the methods by which such
 right may be exercised by the subscriber;
 `(D) specify the methods by which such objections shall be collected and
 added to the database;
 `(E) prohibit any residential subscriber from being charged for giving or
 revoking such notification or for being included in a database compiled
 under this section;
 `(F) prohibit any person from making or transmitting a telephone solicitation
 to the telephone number of any subscriber included in such database;
 `(G) specify (i) the methods by which any person desiring to make or transmit
 telephone solicitations will obtain access to the database, by area code or
 local exchange prefix, as required to avoid calling the telephone numbers
 of subscribers included in such database; and (ii) the costs to be recovered
 from such persons;
 `(H) specify the methods for recovering, from persons accessing such database,
 the costs involved in identifying, collecting, updating, disseminating, and
 selling, and other activities relating to, the operations of the database
 that are incurred by the entities carrying out those activities;
 `(I) specify the frequency with which such database will be updated and
 specify the method by which such updating will take effect for purposes of
 compliance with the regulations prescribed under this subsection;
 `(J) be designed to enable States to use the database mechanism selected
 by the Commission for purposes of administering or enforcing State law;
 `(K) prohibit the use of such database for any purpose other than compliance
 with the requirements of this section and any such State law and specify
 methods for protection of the privacy rights of persons whose numbers are
 included in such database; and
 `(L) require each common carrier providing services to any person for the
 purpose of making telephone solicitations to notify such person of the
 requirements of this section and the regulations thereunder.
 `(4) CONSIDERATIONS REQUIRED FOR USE OF DATABASE METHOD- If the Commission
 determines to require the database mechanism described in paragraph (3),
 the Commission shall--
 `(A) in developing procedures for gaining access to the database, consider
 the different needs of telemarketers conducting business on a national,
 regional, State, or local level;
 `(B) develop a fee schedule or price structure for recouping the cost of
 such database that recognizes such differences and--
 `(i) reflect the relative costs of providing a national, regional, State,
 or local list of phone numbers of subscribers who object to receiving
 telephone solicitations;
 `(ii) reflect the relative costs of providing such lists on paper or
 electronic media; and
 `(iii) not place an unreasonable financial burden on small businesses; and
 `(C) consider (i) whether the needs of telemarketers operating on a local
 basis could be met through special markings of area white pages directories,
 and (ii) if such directories are needed as an adjunct to database lists
 prepared by area code and local exchange prefix.
 `(5) PRIVATE RIGHT OF ACTION- A person who has received more than one
 telephone call within any 12-month period by or on behalf of the same entity
 in violation of the regulations prescribed under this subsection may, if
 otherwise permitted by the laws or rules of court of a State bring in an
 appropriate court of that State--
 `(A) an action based on a violation of the regulations prescribed under
 this subsection to enjoin such violation,
 `(B) an action to recover for actual monetary loss from such a violation,
 or to receive up to $500 in damages for each such violation, whichever is
 greater, or
 `(C) both such actions.
It shall be an affirmative defense in any action brought under this paragraph
that the defendant has established and implemented, with due care, reasonable
practices and procedures to effectively prevent telephone solicitations in
violation of the regulations prescribed under this subsection. If the court
finds that the defendant willfully or knowingly violated the regulations
prescribed under this subsection, the court may, in its discretion, increase
the amount of the award to an amount equal to not more than 3 times the
amount available under subparagraph (B) of this paragraph.
 `(6) RELATION TO SUBSECTION (B)- The provisions of this subsection shall
 not be construed to permit a communication prohibited by subsection (b).
 `(d) Technical and Procedural Standards-
 `(1) PROHIBITION- It shall be unlawful for any person within the United
 States--
 `(A) to initiate any communication using a telephone facsimile machine,
 or to make any telephone call using any automatic telephone dialing
 system, that does not comply with the technical and procedural standards
 prescribed under this subsection, or to use any telephone facsimile machine
 or automatic telephone dialing system in a manner that does not comply with
 such standards; or
 `(B) to use a computer or other electronic device to send any message via
 a telephone facsimile machine unless such person clearly marks, in a margin
 at the top or bottom of each transmitted page of the message or on the first
 page of the transmission, the date and time it is sent and an identification
 of the business, other entity, or individual sending the message and the
 telephone number of the sending machine or of such business, other entity,
 or individual.
 `(2) TELEPHONE FACSIMILE MACHINES- The Commission shall revise the regulations
 setting technical and procedural standards for telephone facsimile machines to
 require that any such machine which is manufactured after one year after the
 date of enactment of this section clearly marks, in a margin at the top or
 bottom of each transmitted page or on the first page of each transmission,
 the date and time sent, an identification of the business, other entity,
 or individual sending the message, and the telephone number of the sending
 machine or of such business, other entity, or individual.
 `(3) ARTIFICIAL OR PRERECORDED VOICE SYSTEMS- The Commission shall prescribe
 technical and procedural standards for systems that are used to transmit
 any artificial or prerecorded voice message via telephone. Such standards
 shall require that--
 `(A) all artificial or prerecorded telephone messages (i) shall, at the
 beginning of the message, state clearly the identity of the business,
 individual, or other entity initiating the call, and (ii) shall, during or
 after the message, state clearly the telephone number or address of such
 business, other entity, or individual; and
 `(B) any such system will automatically release the called party's line
 within 5 seconds of the time notification is transmitted to the system that
 the called party has hung up, to allow the called party's line to be used
 to make or receive other calls.
 `(e) EFFECT ON STATE LAW-
 `(1) STATE LAW NOT PREEMPTED- Except for the standards prescribed under
 subsection (d) and subject to paragraph (2) of this subsection, nothing
 in this section or in the regulations prescribed under this section shall
 preempt any State law that imposes more restrictive intrastate requirements
 or regulations on, or which prohibits--
 `(A) the use of telephone facsimile machines or other electronic devices
 to send unsolicited advertisements;
 `(B) the use of automatic telephone dialing systems;
 `(C) the use of artificial or prerecorded voice messages; or
 `(D) the making of telephone solicitations.
 `(2) STATE USE OF DATABASES- If, pursuant to subsection (c)(3), the Commission
 requires the establishment of a single national database of telephone numbers
 of subscribers who object to receiving telephone solicitations, a State
 or local authority may not, in its regulation of telephone solicitations,
 require the use of any database, list, or listing system that does not
 include the part of such single national datebase that relates to such State.
 `(f) ACTIONS BY STATES-
 `(1) AUTHORITY OF STATES- Whenever the attorney general of a State, or an
 official or agency designated by a State, has reason to believe that any
 person has engaged or is engaging in a pattern or practice of telephone
 calls or other transmissions to residents of that State in violation of
 this section or the regulations prescribed under this section, the State
 may bring a civil action on behalf of its residents to enjoin such calls,
 an action to recover for actual monetary loss or receive $500 in damages
 for each violation, or both such actions. If the court finds the defendant
 willfully or knowingly violated such regulations, the court may, in its
 discretion, increase the amount of the award to an amount equal to not more
 than 3 times the amount available under the preceding sentence.
 `(2) EXCLUSIVE JURISDICTION OF FEDERAL COURTS- The district courts of the
 United States, the United States courts of any territory, and the District
 Court of the United States for the District of Columbia shall have exclusive
 jurisdiction over all civil actions brought under this subsection. Upon
 proper application, such courts shall also have jurisdiction to issue writs
 of mandamus, or orders affording like relief, commanding the defendant to
 comply with the provisions of this section or regulations prescribed under
 this section, including the requirement that the defendant take such action as
 is necessary to remove the danger of such violation. Upon a proper showing,
 a permanent or temporary injunction or restraining order shall be granted
 without bond.
 `(3) RIGHTS OF COMMISSION- The State shall serve prior written notice of
 any such civil action upon the Commission and provide the Commission with
 a copy of its complaint, except in any case where such prior notice is
 not feasible, in which case the State shall serve such notice immediately
 upon instituting such action. The Commission shall have the right (A)
 to intervene in the action, (B) upon so intervening, to be heard on all
 matters arising therein, and (C) to file petitions for appeal.
 `(4) VENUE; SERVICE OF PROCESS- Any civil action brought under this
 subsection in a district court of the United States may be brought in the
 district wherein the defendant is found or is an inhabitant or transacts
 business or wherein the violation occurred or is occurring, and process
 in such cases may be served in any district in which the defendant is an
 inhabitant or where the defendant may be found.
 `(5) INVESTIGATORY POWERS- For purposes of bringing any civil action under
 this subsection, nothing in this section shall prevent the attorney general
 of a State, or an official or agency designated by a State, from exercising
 the powers conferred on the attorney general or such official by the laws of
 such State to conduct investigations or to administer oaths or affirmations
 or to compel the attendance of witnesses or the production of documentary
 and other evidence.
 `(6) EFFECT ON STATE COURT PROCEEDINGS- Nothing contained in this subsection
 shall be construed to prohibit an authorized State official from proceeding
 in State court on the basis of an alleged violation of any general civil
 or criminal statute of such State.
 `(7) LIMITATION- Whenever the Commission has instituted a civil action
 for violation of regulations prescribed under this section, no State may,
 during the pendency of such action instituted by the Commission, subsequently
 institute a civil action against any defendant named in the Commission's
 complaint for any violation as alleged in the Commission's complaint.
 `(8) DEFINITION- As used in this subsection, the term `attorney general'
 means the chief legal officer of a State.'.
 (b) CONFORMING AMENDMENT- Section 2(b) of the Communications Act of 1934
 (47 U.S.C. 152(b)) is amended by striking `Except as provided' and all
 that follows through `and subject to the provisions' and inserting `Except
 as provided in sections 223 through 227, inclusive, and subject to the
 provisions'.
 (c) DEADLINE FOR REGULATIONS; EFFECTIVE DATE-
 (1) REGULATIONS- The Federal Communications Commission shall prescribe
 regulations to implement the amendments made by this section not later than
 9 months after the date of enactment of this Act.
 (2) EFFECTIVE DATE- The requirements of section 228 of the Communications Act
 of 1934 (as added by this section), other than the authority to prescribe
 regulations, shall take effect one year after the date of enactment of
 this Act.
SEC. 4. AM RADIO SERVICE.
 Section 331 of the Communications Act of 1934 is amended--
 (1) in the heading of such section, by inserting `AND AM RADIO STATIONS'
 after `TELEVISION STATIONS';
 (2) by inserting `(a) VERY HIGH FREQUENCY STATIONS- ' after `SEC. 331.'; and
 (3) by adding at the end the following new subsection:
 `(b) AM RADIO STATIONS- It shall be the policy of the Commission, in any
 case in which the licensee of an existing AM daytime-only station located
 in a community with a population of more than 100,000 persons that lacks a
 local full-time aural station licensed to that community and that is located
 within a Class I station primary service area notifies the Commission that
 such licensee seeks to provide full-time service, to ensure that such a
 licensee is able to place a principal community contour signal over its
 entire community of license 24 hours a day, if technically feasible. The
 Commission shall report to the appropriate committees of Congress within
 30 days after the date of enactment of this Act on how it intends to meet
 this policy goal.'.
Speaker of the House of Representatives.
Vice President of the United States and
President of the Senate.