Rules and Regulations Implementing the Controlling of the Assault of Non-Solicited Pornography and Marketing Act of 2003; Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991

AGENCY:

Federal Communications Commission.

ACTION:

Final rule; announcement of effective date.

SUMMARY:

In this document, the Commission announces that the Office of Management and Budget (OMB) has approved for three years the information collections contained in the Commission's rules at § 64.3100(a)(4), (d), (e), and (f). We also announce that now that OMB has approved the rules, Commercial Mobile Radio Service (CMRS) carriers will have until January 21, 2004 to submit all of their electronic mail domain names for wireless messaging to the Commission for inclusion in a wireless domain names database.

DATES:

47 CFR 64.3100(a)(4), (d), (e), and (f) published at 69 FR 55765, September 16, 2004, are effective December 27, 2004.

ADDRESSES:

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

FOR FURTHER INFORMATION CONTACT:

Ruth Yodaiken at 202-418-2512, Consumer & Governmental Affairs Bureau, Ruth.Yodaiken@fcc.gov.

SUPPLEMENTARY INFORMATION:

On August 12, 2004, the Commission released an Order, In the Matter of Rules and Regulations Implementing the Controlling of the Assault of Non-Solicited Pornography and Marketing Act of 2003, published at 69 FR 55765 (September 16, 2004). 47 CFR 64.3100 (a)(4), (d), (e) and (f) of the Commission's rules implementing the Controlling of the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM Act), which contain information collections, were approved by OMB for three years on December 15, 2004. OMB Control No. 3060-1078. The Commission publishes this notice of the effective date of the rules. If you have any comments on the burden estimates, or how we can improve the collection(s) and reduce the burden(s) they cause you, please write to Les Smith, Federal Communications Commission, Room 1-A804, 445 12th Street, SW., Washington, DC 20554. Please include the OMB Control Number, 3060-1078, in your correspondence. We will also accept your comments regarding the Paperwork Reduction Act aspects of the collections via the Internet, if you send them to Leslie.Smith@fcc.gov or call (202) 418-0217.

Synopsis

On August 12, 2004, the Commission released an Order to implement the Controlling of the Assault of Non-Solicited Pornography and Marketing Act of 2003, or the CAN-SPAM Act (69 FR 55765, September 16, 2004). The Order adopts rules to protect wireless subscribers from unwanted commercial electronic mail messages. Specifically, the rules prohibit the transmission of commercial messages to any address referencing an Internet domain name associated with a wireless subscriber messaging service; unless the individual addressee has given the sender express prior authorization. To assist the senders of such messages in identifying wireless subscribers, the Commission's rules require that Commercial Mobile Radio Service (CMRS) providers file with the Commission the names of all electronic domain names used to offer electronic mail messages that are transmitted directly to a wireless device utilized by a subscriber of a commercial mobile service (as such term is defined in section 332(d) of the Communications Act of 1934 (47 U.S.C. 332(d))) in connection with such service.

On December 15, 2004, the Office of Management and Budget (OMB) approved the information collections associated with the Commission's CAN-SPAM rules. Therefore, we announce that CMRS carriers will have until January 21, 2004 to submit to the Commission all of their electronic mail domain names used for wireless messaging.

CMRS carriers may begin the submission process by accessing the following Web site address: http://www.fcc.gov/cgb/policy and clicking on “Domain Name Data Entry for Wireless Providers Only.” Each CMRS carrier must enter their submissions directly into the fields provided on the Domain Name Data Entry. The first section of fields asks the filing party to indicate the type of submission: (1) Submission of a new mailing domain name, (2) updated contact information, or (3) deletion of a mailing domain name already on the wireless domain names list. The next section consists of contact information fields, including the name of the filing party and the organization's address, phone number, and an e-mail address. The Commission will only make public the mailing domain name provided in the submission, not the contact information. The final section allows the CMRS carrier to enter the mailing domain name(s) pursuant to the rules in the Order. Prior to submitting the information, the CMRS carrier must read and agree to a legal notice, which certifies that the domain name(s) submitted is used for mobile service messaging as defined in section 332(d) of the Communications Act of 1934 (47 U.S.C. 332(d)). The CMRS carrier completes the transaction by clicking “Submit.” Any filing party who cannot file electronically should contact the Commission's Consumer & Governmental Affairs Bureau at (202) 418-2512 to make alternate arrangements to submit domain names.

As stated in the Order, the Commission will compile the domain name submissions into the Commission's wireless domain names list. A paper version will also be available at the Commission's headquarters in Washington, DC. This list will be updated regularly as the Commission receives additional submissions. Furthermore, CMRS carriers are responsible for the continuing accuracy and completeness of information furnished for the wireless domain names list. Therefore, CMRS carriers must:

(1) File any future updates to listings with the Commission not less than thirty (30) days before issuing subscribers any new or modified domain name.

(2) Remove any domain name that has not been issued to subscribers or is no longer in use within six (6) months of placing it on the list or last date of use.

The Commission will issue a second public notice announcing the date on which the senders of commercial electronic mail, and the general public, will have access to the list from the Commission's Web site. Senders of mobile service commercial messages (MSCMs) will then have an additional thirty (30) days from the date the list becomes publicly available to comply with the rules to avoid sending MSCMs to wireless subscribers absent express prior authorization. We emphasize that the fact that a domain name was not on the list or not on the list for a full 30 days shall not excuse any willful violation of the rules on sending unwanted messages to wireless subscribers. Any person or entity will be considered in violation of the rules if a message is initiated knowingly to a subscriber of the applicable wireless service without the subscriber's express prior authorization, even if it is sent within 30 days of the domain name appearing on the list.

As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), the FCC is notifying the public that it received approval for three years from OMB on December 15, 2004 for the collection(s) of information contained in the Commission's CAN-SPAM rules at 47 CFR 64.3100. The OMB Control Number is 3060-1078. The annual reporting burden for this collection(s) of information, including the time for gathering and maintaining the collection of information, is estimated to be: 11,027,600 respondents, a total annual hour burden of 115,645,100 hours, and $37,105,000 in total annual costs.

Under 5 CFR 1320, an agency may not conduct or sponsor a collection of information unless it displays a current valid OMB Control Number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act (PRA) that does not display a valid OMB Control Number. The OMB Control Number is 3060-1078.

The Foregoing notice is required by the Paperwork Reduction Act of 1995, Pub. L. 104-13, October 1, 1995, 44 U.S.C. 3507.