§ 64.1200   Delivery restrictions.

   (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]

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