§  64.1200   Delivery restrictions.

   Link to an amendment published at  77 FR 63242 , October 16, 2012.

   Link to an amendment published at  77 FR 63242 , October 16, 2012.

   Link to a correction published at  77 FR 66935 , November 8, 2012.

   Link to a correction published at  77 FR 66935 , November 8, 2012.

   (a) No person or entity may:

   (1) Except as provided in paragraph (a)(2) of this section, initiate
   any telephone call (other than a call made for emergency purposes or is
   made with the prior express consent of the called party) using an
   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.

   (iv) A person will not be liable for violating the prohibition in
   paragraph (a)(1)(iii) of this section when the call is placed to a
   wireless number that has been ported from wireline service and such
   call is a voice call; not knowingly made to a wireless number; and made
   within 15 days of the porting of the number from wireline to wireless
   service, provided the number is not already on the national do-not-call
   registry or caller's company-specific do-not-call list.

   (2) Initiate, or cause to be initiated, any telephone call that
   includes or introduces an advertisement or constitutes telemarketing,
   using an automatic telephone dialing system or an artificial or
   prerecorded voice, to any of the lines or telephone numbers described
   in paragraphs (a)(1)(i) through (iii) of this section, other than a
   call made with the prior express written consent of the called party or
   the prior express consent of the called party when the call is made by
   or on behalf of a tax-exempt nonprofit organization, or a call that
   delivers a “health care” message made by, or on behalf of, a “covered
   entity” or its “business associate,” as those terms are defined in the
   HIPAA Privacy Rule, 45 CFR 160.103.

   (3) Initiate any telephone call to any residential line using an
   artificial or prerecorded voice to deliver a message without the prior
   express written consent of the called party, unless the call;

   (i) Is made for emergency purposes;

   (ii) Is not made for a commercial purpose;

   (iii) Is made for a commercial purpose but does not include or
   introduce an advertisement or constitute telemarketing;

   (iv) Is made by or on behalf of a tax-exempt nonprofit organization; or

   (v) Delivers a “health care” message made by, or on behalf of, a
   “covered entity” or its “business associate,” as those terms are
   defined in the HIPAA Privacy Rule, 45 CFR 160.103.

   (4) Use a telephone facsimile machine, computer, or other device to
   send an unsolicited advertisement to a telephone facsimile machine,
   unless—

   (i) The unsolicited advertisement is from a sender with an established
   business relationship, as defined in paragraph (f)(6) of this section,
   with the recipient; and

   (ii) The sender obtained the number of the telephone facsimile machine
   through—

   (A) The voluntary communication of such number by the recipient
   directly to the sender, within the context of such established business
   relationship; or

   (B) A directory, advertisement, or site on the Internet to which the
   recipient voluntarily agreed to make available its facsimile number for
   public distribution. If a sender obtains the facsimile number from the
   recipient's own directory, advertisement, or Internet site, it will be
   presumed that the number was voluntarily made available for public
   distribution, unless such materials explicitly note that unsolicited
   advertisements are not accepted at the specified facsimile number. If a
   sender obtains the facsimile number from other sources, the sender must
   take reasonable steps to verify that the recipient agreed to make the
   number available for public distribution.

   (C) This clause shall not apply in the case of an unsolicited
   advertisement that is sent based on an established business
   relationship with the recipient that was in existence before July 9,
   2005 if the sender also possessed the facsimile machine number of the
   recipient before July 9, 2005. There shall be a rebuttable presumption
   that if a valid established business relationship was formed prior to
   July 9, 2005, the sender possessed the facsimile number prior to such
   date as well; and

   (iii) The advertisement contains a notice that informs the recipient of
   the ability and means to avoid future unsolicited advertisements. A
   notice contained in an advertisement complies with the requirements
   under this paragraph only if—

   (A) The notice is clear and conspicuous and on the first page of the
   advertisement;

   (B) The notice states that the recipient may make a request to the
   sender of the advertisement not to send any future advertisements to a
   telephone facsimile machine or machines and that failure to comply,
   within 30 days, with such a request meeting the requirements under
   paragraph (a)(4)(v) of this section is unlawful;

   (C) The notice sets forth the requirements for an opt-out request under
   paragraph (a)(4)(v) of this section;

   (D) The notice includes—

   ( 1 ) A domestic contact telephone number and facsimile machine number
   for the recipient to transmit such a request to the sender; and

   ( 2 ) If neither the required telephone number nor facsimile machine
   number is a toll-free number, a separate cost-free mechanism including
   a Web site address or email address, for a recipient to transmit a
   request pursuant to such notice to the sender of the advertisement. A
   local telephone number also shall constitute a cost-free mechanism so
   long as recipients are local and will not incur any long distance or
   other separate charges for calls made to such number; and

   (E) The telephone and facsimile numbers and cost-free mechanism
   identified in the notice must permit an individual or business to make
   an opt-out request 24 hours a day, 7 days a week.

   (iv) A facsimile advertisement that is sent to a recipient that has
   provided prior express invitation or permission to the sender must
   include an opt-out notice that complies with the requirements in
   paragraph (a)(4)(iii) of this section.

   (v) A request not to send future unsolicited advertisements to a
   telephone facsimile machine complies with the requirements under this
   subparagraph only if—

   (A) The request identifies the telephone number or numbers of the
   telephone facsimile machine or machines to which the request relates;

   (B) The request is made to the telephone number, facsimile number, Web
   site address or email address identified in the sender's facsimile
   advertisement; and

   (C) The person making the request has not, subsequent to such request,
   provided express invitation or permission to the sender, in writing or
   otherwise, to send such advertisements to such person at such telephone
   facsimile machine.

   (vi) A sender that receives a request not to send future unsolicited
   advertisements that complies with paragraph (a)(4)(v) of this section
   must honor that request within the shortest reasonable time from the
   date of such request, not to exceed 30 days, and is prohibited from
   sending unsolicited advertisements to the recipient unless the
   recipient subsequently provides prior express invitation or permission
   to the sender. The recipient's opt-out request terminates the
   established business relationship exemption for purposes of sending
   future unsolicited advertisements. If such requests are recorded or
   maintained by a party other than the sender on whose behalf the
   unsolicited advertisement is sent, the sender will be liable for any
   failures to honor the opt-out request.

   (vii) A facsimile broadcaster will be liable for violations of
   paragraph (a)(4) of this section, including the inclusion of opt-out
   notices on unsolicited advertisements, if it demonstrates a high degree
   of involvement in, or actual notice of, the unlawful activity and fails
   to take steps to prevent such facsimile transmissions.

   (5) Use an automatic telephone dialing system in such a way that two or
   more telephone lines of a multi-line business are engaged
   simultaneously.

   (6) Disconnect an unanswered telemarketing call prior to at least 15
   seconds or four (4) rings.

   (7) Abandon more than three percent of all telemarketing calls that are
   answered live by a person, as measured over a 30-day period for a
   single calling campaign. If a single calling campaign exceeds a 30-day
   period, the abandonment rate shall be calculated separately for each
   successive 30-day period or portion thereof that such calling campaign
   continues. A call is “abandoned” if it is not connected to a live sales
   representative within two (2) seconds of the called person's completed
   greeting.

   (i) Whenever a live sales representative is not available to speak with
   the person answering the call, within two (2) seconds after the called
   person's completed greeting, the telemarketer or the seller must
   provide:

   (A) A prerecorded identification and opt-out message that is limited to
   disclosing that the call was for “telemarketing purposes” and states
   the name of the business, entity, or individual on whose behalf the
   call was placed, and a telephone number for such business, entity, or
   individual that permits the called person to make a do-not-call request
   during regular business hours for the duration of the telemarketing
   campaign; provided, that, such telephone number may not be a 900 number
   or any other number for which charges exceed local or long distance
   transmission charges, and

   (B) An automated, interactive voice- and/or key press-activated opt-out
   mechanism that enables the called person to make a do-not-call request
   prior to terminating the call, including brief explanatory instructions
   on how to use such mechanism. When the called person elects to opt-out
   using such mechanism, the mechanism must automatically record the
   called person's number to the seller's do-not-call list and immediately
   terminate the call.

   (ii) A call for telemarketing purposes that delivers an artificial or
   prerecorded voice message to a residential telephone line or to any of
   the lines or telephone numbers described in paragraphs (a)(1)(i)
   through (iii) of this section after the subscriber to such line has
   granted prior express written consent for the call to be made shall not
   be considered an abandoned call if the message begins within two (2)
   seconds of the called person's completed greeting.

   (iii) The seller or telemarketer must maintain records establishing
   compliance with paragraph (a)(7) of this section.

   (iv) Calls made by or on behalf of tax-exempt nonprofit organizations
   are not covered by this paragraph (a)(7).

   (8) Use any technology to dial any telephone number for the purpose of
   determining whether the line is a facsimile or voice line.

   (b) All artificial or prerecorded voice telephone messages shall:

   (1) At the beginning of the message, state clearly the identity of the
   business, individual, or other entity that is responsible for
   initiating the call. If a business is responsible for initiating the
   call, the name under which the entity is registered to conduct business
   with the State Corporation Commission (or comparable regulatory
   authority) must be stated;

   (2) During or after the message, state clearly the telephone number
   (other than that of the autodialer or prerecorded message player that
   placed the call) of such business, other entity, or individual. The
   telephone number provided may not be a 900 number or any other number
   for which charges exceed local or long distance transmission charges.
   For telemarketing messages to residential telephone subscribers, such
   telephone number must permit any individual to make a do-not-call
   request during regular business hours for the duration of the
   telemarketing campaign; and

   (3) In every case where the artificial or prerecorded voice telephone
   message includes or introduces an advertisement or constitutes
   telemarketing and is delivered to a residential telephone line or any
   of the lines or telephone numbers described in paragraphs (a)(1)(i)
   through (iii), provide an automated, interactive voice- and/or key
   press-activated opt-out mechanism for the called person to make a
   do-not-call request, including brief explanatory instructions on how to
   use such mechanism, within two (2) seconds of providing the
   identification information required in paragraph (b)(1) of this
   section. When the called person elects to opt out using such mechanism,
   the mechanism, must automatically record the called person's number to
   the seller's do-not-call list and immediately terminate the call. When
   the artificial or prerecorded voice telephone message is left on an
   answering machine or a voice mail service, such message must also
   provide a toll free number that enables the called person to call back
   at a later time and connect directly to the automated, interactive
   voice- and/or key press-activated opt-out mechanism and automatically
   record the called person's number to the seller's do-not-call list.

   (c) No person or entity shall initiate any telephone solicitation to:

   (1) Any residential telephone subscriber before the hour of 8 a.m. or
   after 9 p.m. (local time at the called party's location), or

   (2) A residential telephone subscriber who has registered his or her
   telephone number on the national do-not-call registry of persons who do
   not wish to receive telephone solicitations that is maintained by the
   Federal Government. Such do-not-call registrations must be honored
   indefinitely, or until the registration is cancelled by the consumer or
   the telephone number is removed by the database administrator. Any
   person or entity making telephone solicitations (or on whose behalf
   telephone solicitations are made) will not be liable for violating this
   requirement if:

   (i) It can demonstrate that the violation is the result of error and
   that as part of its routine business practice, it meets the following
   standards:

   (A) Written procedures. It has established and implemented written
   procedures to comply with the national do-not-call rules;

   (B) Training of personnel. It has trained its personnel, and any entity
   assisting in its compliance, in procedures established pursuant to the
   national do-not-call rules;

   (C) Recording. It has maintained and recorded a list of telephone
   numbers that the seller may not contact;

   (D) Accessing the national do-not-call database. It uses a process to
   prevent telephone solicitations to any telephone number on any list
   established pursuant to the do-not-call rules, employing a version of
   the national do-not-call registry obtained from the administrator of
   the registry no more than 31 days prior to the date any call is made,
   and maintains records documenting this process.

   Note to paragraph (c)(2)(i)(D): The requirement in paragraph
   64.1200(c)(2)(i)(D) for persons or entities to employ a version of the
   national do-not-call registry obtained from the administrator no more
   than 31 days prior to the date any call is made is effective January 1,
   2005. Until January 1, 2005, persons or entities must continue to
   employ a version of the registry obtained from the administrator of the
   registry no more than three months prior to the date any call is made.

   (E) Purchasing the national do-not-call database. It uses a process to
   ensure that it does not sell, rent, lease, purchase or use the national
   do-not-call database, or any part thereof, for any purpose except
   compliance with this section and any such state or federal law to
   prevent telephone solicitations to telephone numbers registered on the
   national database. It purchases access to the relevant do-not-call data
   from the administrator of the national database and does not
   participate in any arrangement to share the cost of accessing the
   national database, including any arrangement with telemarketers who may
   not divide the costs to access the national database among various
   client sellers; or

   (ii) It has obtained the subscriber's prior express invitation or
   permission. Such permission must be evidenced by a signed, written
   agreement between the consumer and seller which states that the
   consumer agrees to be contacted by this seller and includes the
   telephone number to which the calls may be placed; or

   (iii) The telemarketer making the call has a personal relationship with
   the recipient of the call.

   (d) No person or entity shall initiate any call for telemarketing
   purposes to a residential telephone subscriber unless such person or
   entity has instituted procedures for maintaining a list of persons who
   request not to receive telemarketing calls made by or on behalf of that
   person or entity. The procedures instituted must meet the following
   minimum standards:

   (1) Written policy. Persons or entities making calls for telemarketing
   purposes must have a written policy, available upon demand, for
   maintaining a do-not-call list.

   (2) Training of personnel engaged in telemarketing. Personnel engaged
   in any aspect of telemarketing must be informed and trained in the
   existence and use of the do-not-call list.

   (3) Recording, disclosure of do-not-call requests. If a person or
   entity making a call for telemarketing purposes (or on whose behalf
   such a call is made) receives a request from a residential telephone
   subscriber not to receive calls from that person or entity, the person
   or entity must record the request and place the subscriber's name, if
   provided, and telephone number on the do-not-call list at the time the
   request is made. Persons or entities making calls for telemarketing
   purposes (or on whose behalf such calls are made) must honor a
   residential subscriber's do-not-call request within a reasonable time
   from the date such request is made. This period may not exceed thirty
   days from the date of such request. If such requests are recorded or
   maintained by a party other than the person or entity on whose behalf
   the telemarketing call is made, the person or entity on whose behalf
   the telemarketing call is made will be liable for any failures to honor
   the do-not-call request. A person or entity making a call for
   telemarketing purposes must obtain a consumer's prior express
   permission to share or forward the consumer's request not to be called
   to a party other than the person or entity on whose behalf a
   telemarketing call is made or an affiliated entity.

   (4) Identification of sellers and telemarketers. A person or entity
   making a call for telemarketing purposes must provide the called party
   with the name of the individual caller, the name of the person or
   entity on whose behalf the call is being made, and a telephone number
   or address at which the person or entity may be contacted. The
   telephone number provided may not be a 900 number or any other number
   for which charges exceed local or long distance transmission charges.

   (5) Affiliated persons or entities. In the absence of a specific
   request by the subscriber to the contrary, a residential subscriber's
   do-not-call request shall apply to the particular business entity
   making the call (or on whose behalf a call is made), and will not apply
   to affiliated entities unless the consumer reasonably would expect them
   to be included given the identification of the caller and the product
   being advertised.

   (6) Maintenance of do-not-call lists. A person or entity making calls
   for telemarketing purposes must maintain a record of a consumer's
   request not to receive further telemarketing calls. A do-not-call
   request must be honored for 5 years from the time the request is made.

   (7) Tax-exempt nonprofit organizations are not required to comply with
   64.1200(d).

   (e) The rules set forth in paragraph (c) and (d) of this section are
   applicable to any person or entity making telephone solicitations or
   telemarketing calls to wireless telephone numbers to the extent
   described in the Commission's Report and Order, CG Docket No. 02-278,
   FCC 03-153, “Rules and Regulations Implementing the Telephone Consumer
   Protection Act of 1991.”

   (f) As used in this section:

   (1) The term advertisement means any material advertising the
   commercial availability or quality of any property, goods, or services.

   (2) The terms automatic telephone dialing system and autodialer mean
   equipment which has the capacity to store or produce telephone numbers
   to be called using a random or sequential number generator and to dial
   such numbers.

   (3) The term clear and conspicuous means a notice that would be
   apparent to the reasonable consumer, separate and distinguishable from
   the advertising copy or other disclosures. With respect to facsimiles
   and for purposes of paragraph (a)(4)(iii)(A) of this section, the
   notice must be placed at either the top or bottom of the facsimile.

   (4) The term emergency purposes means calls made necessary in any
   situation affecting the health and safety of consumers.

   (5) The term established business relationship for purposes of
   telephone solicitations means a prior or existing relationship formed
   by a voluntary two-way communication between a person or entity and a
   residential subscriber with or without an exchange of consideration, on
   the basis of the subscriber's purchase or transaction with the entity
   within the eighteen (18) months immediately preceding the date of the
   telephone call or on the basis of the subscriber's inquiry or
   application regarding products or services offered by the entity within
   the three months immediately preceding the date of the call, which
   relationship has not been previously terminated by either party.

   (i) The subscriber's seller-specific do-not-call request, as set forth
   in paragraph (d)(3) of this section, terminates an established business
   relationship for purposes of telemarketing and telephone solicitation
   even if the subscriber continues to do business with the seller.

   (ii) The subscriber's established business relationship with a
   particular business entity does not extend to affiliated entities
   unless the subscriber would reasonably expect them to be included given
   the nature and type of goods or services offered by the affiliate and
   the identity of the affiliate.

   (6) The term established business relationship for purposes of
   paragraph (a)(4) of this section on the sending of facsimile
   advertisements means a prior or existing relationship formed by a
   voluntary two-way communication between a person or entity and a
   business or residential subscriber with or without an exchange of
   consideration, on the basis of an inquiry, application, purchase or
   transaction by the business or residential subscriber regarding
   products or services offered by such person or entity, which
   relationship has not been previously terminated by either party.

   (7) The term facsimile broadcaster means a person or entity that
   transmits messages to telephone facsimile machines on behalf of another
   person or entity for a fee.

   (8) The term prior express written consent means an agreement, in
   writing, bearing the signature of the person called that clearly
   authorizes the seller to deliver or cause to be delivered to the person
   called advertisements or telemarketing messages using an automatic
   telephone dialing system or an artificial or prerecorded voice, and the
   telephone number to which the signatory authorizes such advertisements
   or telemarketing messages to be delivered.

   (i) The written agreement shall include a clear and conspicuous
   disclosure informing the person signing that:

   (A) By executing the agreement, such person authorizes the seller to
   deliver or cause to be delivered to the signatory telemarketing calls
   using an automatic telephone dialing system or an artificial or
   prerecorded voice; and

   (B) The person is not required to sign the agreement (directly or
   indirectly), or agree to enter into such an agreement as a condition of
   purchasing any property, goods, or services.

   (ii) The term “signature” shall include an electronic or digital form
   of signature, to the extent that such form of signature is recognized
   as a valid signature under applicable federal law or state contract
   law.

   (9) The term seller means the person or entity on whose behalf a
   telephone call or message is initiated for the purpose of encouraging
   the purchase or rental of, or investment in, property, goods, or
   services, which is transmitted to any person.

   (10) The term sender for purposes of paragraph (a)(4) of this section
   means the person or entity on whose behalf a facsimile unsolicited
   advertisement is sent or whose goods or services are advertised or
   promoted in the unsolicited advertisement.

   (11) The term telemarketer means the person or entity that initiates 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.

   (12) The term telemarketing 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.

   (13) The term telephone facsimile machine means equipment which has the
   capacity to transcribe text or images, or both, from paper into an
   electronic signal and to transmit that signal over a regular telephone
   line, or to transcribe text or images (or both) from an electronic
   signal received over a regular telephone line onto paper.

   (14) 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:

   (i) To any person with that person's prior express invitation or
   permission;

   (ii) To any person with whom the caller has an established business
   relationship; or

   (iii) By or on behalf of a tax-exempt nonprofit organization.

   (15) 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, in writing or otherwise.

   (16) The term personal relationship means any family member, friend, or
   acquaintance of the telemarketer making the call.

   (g) Beginning January 1, 2004, common carriers shall:

   (1) When providing local exchange service, provide an annual notice,
   via an insert in the subscriber's bill, of the right to give or revoke
   a notification of an objection to receiving telephone solicitations
   pursuant to the national do-not-call database maintained by the federal
   government and the methods by which such rights may be exercised by the
   subscriber. The notice must be clear and conspicuous and include, at a
   minimum, the Internet address and toll-free number that residential
   telephone subscribers may use to register on the national database.

   (2) When providing service to any person or entity for the purpose of
   making telephone solicitations, make a one-time notification to such
   person or entity of the national do-not-call requirements, including,
   at a minimum, citation to 47 CFR 64.1200 and 16 CFR 310. Failure to
   receive such notification will not serve as a defense to any person or
   entity making telephone solicitations from violations of this section.

   (h) The administrator of the national do-not-call registry that is
   maintained by the federal government shall make the telephone numbers
   in the database available to the States so that a State may use the
   telephone numbers that relate to such State as part of any database,
   list or listing system maintained by such State for the regulation of
   telephone solicitations.

   [ 68 FR 44177 , July 25, 2003, as amended at  68 FR 59131 , Oct. 14, 2003;
    69 FR 60316 , Oct. 8, 2004;  70 FR 19337 , Apr. 13, 2005;  71 FR 25977 , May
   3, 2006;  71 FR 56893 , Sept. 28, 2006;  71 FR 75122 , Dec. 14, 2006;  73 FR 40185 , July 14, 2008;  77 FR 34246 , June. 11, 2012]

   Effective Date Note: At  77 FR 34246 , June 11, 2012, §  64.1200 was
   amended. Paragraphs (a)(2), (a)(3), and (b) (3) contain information
   collection and recordkeeping requirements and will not become effective
   until approval has been given by the Office of Management and Budget.

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