US Code as of: 01/05/99
Sec. 227. Restrictions on 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 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;
- (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
(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.
- (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 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.
- (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.
- (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) of this
section.
- (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 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.
- (e)
Effect on State law
- (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.
- (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.
- (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)
''Attorney general'' defined
As used in this subsection, the term ''attorney general'' means
the chief legal officer of a State.