(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.
- (A) to store or produce telephone numbers to be called, using a
random or sequential number generator; and
- (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.
- (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;
- (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);
- (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.
- (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 -
- (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
- (i) calls that are not made for a commercial purpose; 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.
- (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;
- (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.
- (A) an action based on a violation of
this subsection or the regulations prescribed under this subsection
to enjoin such violation,
- (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.
- (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;
- (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.
- (A) specify a method by which the Commission will select an
entity to administer such database;
- (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
- (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;
- (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.
- (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;
- (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.
- (A) an action based on a violation of the regulations prescribed
under this subsection to enjoin such violation,
- (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.
- (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.
- (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
- (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.
- (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
- (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.
- (A) the use of telephone facsimile machines or other electronic
devices to send unsolicited advertisements;
- (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.
- (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.
