Consumer & Governmental Affairs Bureau Seeks Comment on CCAdvertising Petition for Declaratory Ruling on Preemption of North Dakota Telemarketing Rules

AGENCY:

Federal Communications Commission.

ACTION:

Notice.

SUMMARY:

This document seeks comment on a petition for expedited declaratory ruling filed by FreeEats.com, Inc., dba ccAdvertising, asking the Commission to preempt certain provisions of North Dakota state law which restricts the use of autodialed, prerecorded message technology.

DATES:

Comments are due November 8, 2004, and reply comments are due November 17, 2004.

ADDRESSES:

Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT:

Kelli Farmer, Consumer Policy Division, Consumer & Governmental Affairs Bureau, (202) 418-2512.

SUPPLEMENTARY INFORMATION:

This is a summary of the Commission's Public Notice, CG Docket No. 02-278, DA 04-3187, released October 4, 2004. Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments in this proceeding on or before November 8, 2004, and reply comments may be filed on or before November 17, 2004. When filing comments, please reference CG Docket No. 02-278. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS) or by filing paper copies. See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121, May 1, 1998. Comments filed through the ECFS can be sent as an electronic file via the Internet to http://www.fcc.gov/e-file/ecfs.html. Generally, only one copy of an electronic submission must be filed. In completing the transmittal screen, commenters should include their full name, U.S. Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions for e-mail comments, commenters should send e-mail to ecfs@fcc.gov, and should include the following words in the body of the message, “get form <your e-mail address>.” A sample form and directions will be sent in reply.

Parties who choose to file by paper must send an original and four (4) copies of each filing. Filings can be sent by hand or messenger delivery, by electronic media, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although we continue to experience delays in receiving U.S. Postal Service mail). The Commission's contractor, Natek, Inc., will receive hand-delivered or messenger-delivered paper filings or electronic media for the Commission's Secretary at 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building. Commercial and electronic media sent by overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capital Heights, MD 20743. U.S. Postal Service first-class mail, Express Mail, and Priority Mail should be addressed to 445 12th Street, SW., Washington, DC 20554. All filings must be addressed to the Commission's Secretary, Marlene H. Dortch, Office of the Secretary, Federal Communications Commission, 445 12th Street, SW., Room TW-B204, Washington, DC 20554.

This proceeding shall be treated as a “permit but disclose” proceeding in accordance with the Commission's ex parte rules, 47 CFR 1.1200. Persons making oral ex parte presentations are reminded that memoranda summarizing the presentations must contain summaries of the substances of the presentations and not merely a listing of the subjects discussed. More than a one or two sentence description of the views and arguments presented is generally required. See 47 CFR 1.1206(b). Other rules pertaining to oral and written ex parte presentations in permit-but-disclosed proceedings are set forth in § 1.1206(b) of the Commission's rules, 47 CFR 1.1206(b).

The full text of this document and copies of any subsequently filed documents in this matter will be available for public inspection and copying during regular business hours at the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554, (202) 418-0270. This document may be purchased from the Commission's duplicating contractor, Best Copy and Printing (BCPI), Inc., Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554. Customers may contact BCPI, Inc. at their Web site: http://www.bcpiweb.com or by calling 1-800-378-3160.

To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format) send an e-mail to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at (202) 418-0530 (voice) or (202) 418-0432 (TTY). The Public Notice can also be downloaded in Word or Portable Document Format (PDF) at http://www.fcc.gov/cgb.

Synopsis

On September 13, 2004, FreeEats.com, Inc., dba ccAdvertising (Petitioner or ccAdvertising) filed a petition for expedited declaratory ruling, asking the Commission to preempt certain provisions of North Dakota state law. Petitioner explains that it is a Virginia-based company that uses prerecorded messages to conduct political polling, most of which involves interstate calls. According to Petitioner, the North Dakota attorney general's office has notified ccAdvertising that its use of autodialed, prerecorded message technology is regulated by the state's telemarketing statutes, and that the state intends to enforce against ccAdvertising section 51-28-02 of the North Dakota Century Code, which prohibits the use of prerecorded messages without authorization from the called party. Petitioner contends that North Dakota's law is inconsistent with the Telephone Consumer Protection Act (TCPA) and with the Commission's telemarketing rules, both of which permit political polling calls using prerecorded messages. Therefore, Advertising requests that the Commission preempt North Dakota's more restrictive regulation of interstate political polling calls.