Q AND A

1. Does the Telephone Consumer Protection Act apply to intrastate calls?
• Yes - “The TCPA applies not only to interstate but also to intrastate telemarketing calls and faxes. To conclude otherwise would ignore the statutes conforming amendment, its language with respect to local calls, the FCC’s administrative interpretations, and the clear legislative history.”  State of Texas v American Blast Fax, Inc., No. A 00 CA 085 SS (W.D. Tex., Feb. 8, 2001)
2. Does a recipient of an unsolicted fax advertisement have to opt-out?
• No - "Accordingly, recipients of unsolicited facsimile advertisements are not required to ask that senders stop transmitting such materials." Citation issued to 21st Century Fax(es) Ltd. 03/08/2000
3. Does a recipient of a prerecorded telephone solicitation to their residence have to opt-out?
• No - "Relation to subsection (b) The provisions of this subsection shall not be construed to permit a communication prohibited by subsection (b) of this section." 47 USC 227 (c)(6)
4. Are hang up calls from telemarketers prohibited?
• Yes - "FCC rules require that companies identify themselves to consumers and also that telemarkers maintain "do-not-call" lists for people who do not wish to receive telemarketing calls from a certain company.The practice of predictive dialing, and the resulting abandoned calls, often does not allow consumer to identify the company calling and make a do-not-call request under FCC rules." FCC Consumer Alert - Predictive Dialing: The Silence on the Other End of the Line
5. Does a do not call request apply to the person called or the telephone number called?
• The do-not-call request applies to the telephone number - "Our conclusion in this instance--that a do-not-call request applies by number--is based upon the same premise, and consistent with our overall policy goals of the statute and the rules, to protect individuals from unwanted telephone solicitations." In the Matter of Consumer.net v. AT&T, 15 FCC Rcd. 281, 1999 WL 1256282 (F.C.C.) (Dec. 28, 1999)
6. What about commercial free speech?
• "Nothing in the constitution compels us to listen to or view any unwanted communication whatever its merit..." Rowan v. Post Office 397 U.S. 728 (1970) 
• The provision in the Telephone Consumer Protection Act of 1991 banning automated, prerecorded calls to residences is content-neutral. Congress adequately demonstrated that such calls pose a threat to residential privacy. The ban is narrowly tailored to advance that interest, and leaves open ample alternative channels of communication. Thus, it does not violate the First Amendment. Moser v. FCC, 46 F.3d 970 (9th Cir. 1995), cert. denied, 115 S. Ct. 2615 (1995). (This case reversed Moser v. FCC, 826 F. Supp. 360 (D. Oregon 1993) (United States Court of Appeals, Ninth Circuit. Argued and Submitted October 31, 1994. Decided February 6, 1995. 
• “[I]t is untenable that conduct such as vandalism is protected by the First Amendment merely because those engaged in such conduct intend thereby to express an idea.” In re Michael M., 86 Cal.App.4th 718, 729 (2001) citing Texas v. Johnson, 491 U.S. 397, 404 (1989).
  
7. Are survey calls exempt from the TCPA?
• No - H.R. Rep. No. 317, 102d Cong., 1st Sess. 1991, p. 13 (stating “a call encouraging a purchase, rental or investment would fall within the definition [of telephone solicitation] . . . even though the caller purports to taking a poll or conducting a survey”); S. Rep. No. 177, 102d Cong., 1st Sess. 1991, p. 5 (same)
8. Are prerecorded telephone solicitations to answering machines and voice mail regulated by the TCPA?
• Yes - The Defendant asserts the Plaintiff gave permission to leave the message when his answering machine answered the phone. The message on the Plaintiff’s answering machine invites callers to leave a message. This argument is without merit. The statute in question says it is unlawful to initiate such calls without the prior express permission of the called party. This clearly means the permission must be granted prior to the initiation of the call. It does not matter what happens after the call is made or how it is received regarding the issue of permission. Ryan P. Agostinelli v. LM Communications of South Carolina et al, No. 00-SC-86-2862, In the Small Claims Court, County Of Charleston, South Carolina
9. What about state laws?
• Moreover, the applicability of state law is not relevant to questions of compliance with federal law here. Regardless of what state law does or does not require, US Notary had an independent obligation to comply with the TCPA and the Commission's associated rules. In the Matter of US Notary, Inc., Forfeiture Order, FCC 01-301, October 3, 2001
  

Unsolicited Commercial E-mail will be dealt with accordingly!