Before the Federal Communications Commission

1^ The Commission’s implementing rule states that no person or entity may “initiate any telephone call” to the specified recipients. 47 C.F.R. § 64.1200(a)(1) (emphasis added). The Commission, in the 2013 DISH Declaratory Ruling, noted that neither the statute nor our rules define “initiate,” and determined that “a person or entity ‘initiates’ a telephone call when it takes the steps necessary to physically place a telephone call.” DISH Declaratory Ruling, 28 FCC Rcd at 6583, para. 26. While DISH Declaratory Ruling interpreted and applied section 227(b)(1)(B), the Commission has stated that the same logic that applies to the “initiation” of calls under section 227(b)(1)(B) applies to the “making” of calls under section 227(b)(1)(A). See DISH Declaratory Ruling, 28 FCC Rcd at 6575, 6583, paras. 3, 26; 47 U.S.C. § 227(b)(1). While some may argue that using call attempts as the basis for determining the permissible number of calls is an arbitrary limitation, our interpretation of the term “call” is consistent for the TCPA as a whole and does not distinguish between calls regarding debts owed to or guaranteed by the United States and calls with other content.

2^ 47 C.F.R. § 64.1200(a)(1).

3^ NCLC Letter at 4; EFC Comments at 7-8; OSLA Comments at 2; NCHER Comments at 12; MFY Comments at 2; AFR Comments at 2; YI Comments at 2; CAC Comments at 2.

4^ Navient Mar. 11, 2016 Letter at 2-3; ACA Comments at 16-17; AACC Comments at 2.

5^ NCLC Comments at 26.

6^ See 47 U.S.C. § 227(a)(1); 2015 TCPA Declaratory Ruling and Order, 30 FCC Rcd at 8017, para 107.

1^ See, e.g., FTC BCP staff Comments at 7-8; ACA Comments at 10-11; NCHER Comments at 5; EFC Comments at 4; NCLC Comments at 20.

2^ Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Request of ACA International for Clarification and Declaratory Ruling, CG Docket No. 02-278, 23 FCC Rcd 559, 565, para. 11 (2008) (ACA Declaratory Ruling).

3^ Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Docket No. 02-278, Report and Order, 18 FCC Rcd 14014, 14097-98, para. 140 (2003).

1^ See para. 7, supra.

2^ Budget Act § 301(a)(2)(C) (adding 47 U.S.C. § 227(b)(2)(H)).

1^ This does not limit the applicability of the number and duration rules to only calls made by the federal government and its contractors where the debt is owed to or guaranteed by the United States. Rather, we clarify that the number and duration rules apply to the federal government and its contractors, notwithstanding our recent clarification in the Broadnet Declaratory Ruling, as explained in the “Jurisdiction” section, below. Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Broadnet Teleservices LLC Petition for Declaratory Ruling, CG Docket No. 02-278, FCC 16-72 (2016) (Broadnet Declaratory Ruling). Non-government owners of debt and their contractors, where the debt is guaranteed by the United States, must also comply with the number and duration rules if they wish to make federal debt collection calls pursuant to the Budget Act amendments.

1^ See, e.g., CFPB Comments at 10 (“The Bureau’s examinations of debt collectors have also revealed excessive calling and consequent consumer harm. The Bureau therefore believes that a regulatory intervention limiting the number of such calls placed to cell phones by auto-dialers would be a beneficial complement to examination and enforcement to protect consumers from excessive calls from collectors (as well as from creditors and servicers).”) (listed in the Commissions comment filing system as filed on May 8, 2016 rather than June 8, 2016).

2^ As explained more fully in para. 45, infra, some debtors have multiple debts with the same owner or servicer. See NCLC Reply Comments at 7 (“[S]ome servicers collect debts owed to different agencies of the federal government, yet the collection activities devoted to separate agencies are cabined such that it would be difficult for the servicers to coordinate among sections.”). Multiple debts owed by one debtor that are serviced or collected by the same entity on behalf of the same loan holder or federal agency shall be considered one debt. This will prevent one debtor with multiple debts of the same type from receiving more than three calls in thirty days, where the debts are owned or serviced by the same caller.

3^ If a caller is making both servicing and collection calls to a wireless number regarding a particular debt, it may make a total of three calls within thirty days; it may not make three servicing calls and three collection calls within a thirty-day period.

1^ See, e.g., Markey Jun. 8, 2016 Letter at 1; NCLC Letter at 3.

2^ NCLC Comments at 27.

3^ ECMC Comments at 6.

4^ Navient Comments at 10.

5^ ECMC Comments at 7.

6^ ConServe Comments at 3.

7^ Nelnet Comments at 14; SLSA Comments at 26.

8^ QLI Comments at 3.

1^ Dept. of Education Reply Comments at 4.

2^ Navient Reply Comments at 10.

1^ See para. 9, supra.

2^ See, e.g., NCHER Comments at 12 (proposing that “[n]othing in the rule limits or prohibits calls or texts requested or agreed upon by the consumer”).

1^ See Dept. of Education Reply Comments at 4.

2^ See 47 CFR § 1.3.

3^ Contrary to the claim of one dissent, our decision to adopt a limit of three calls per thirty days does not lack a rational basis. It is well established that a paramount goal of Congress in adopting the TCPA was to recognize the intrusive nature of robocalls and to limit the burden they impose on consumers. See TCPA, Pub. L. No. 102-243, § 2(9). Nothing in the Budget Act indicates that Congress intended to depart from this goal. To the contrary, we believe Congress granted the Commission rulemaking authority in subparagraph (b)(2)(H) precisely to ensure that this law does not inadvertently open the floodgates to unwanted robocalls. While it is true that some commenters urged us to adopt limits much higher than three per thirty days, against the backdrop of Congress’s enduring goal of limiting the intrusiveness of robocalls, we believe prudence counsels in favor of adopting limits at the lower end of the range of proposals in the record at this time. To the extent that subsequent experience with the waiver process demonstrates that higher limits may we warranted, we can revisit the limits in the future. One dissent questions the adequacy of the waiver process, particularly given some specific concerns raised in the record about federal laws and rules under the auspices of other agencies. Because the Commission lacks expertise with respect to such laws and rules (including whether they necessarily require robocalls instead of, say, manual calls), we believe a waiver process is the best way to address any such situations; such a process will allow a full record to be developed regarding the nature of any relevant statutes and rules. To the extent that it is demonstrated in a waiver proceeding that a genuine conflict exists between our three-per-thirty-days limit and another federal law, we are likely to view that factor as probative of the “good cause” needed to justify a waiver, although we also would consider any countervailing issues raised in the record.

1^ See, e.g., ConServe Comments at 10; MBA Reply Comments at 9; HOPE NOW Reply Comments at 2-3.

2^ See 47 U.S.C. § 227(b)(1)(A); 47 CFR § 64.1200(a)(1).

1^ See 2015 TCPA Declaratory Ruling and Order, 30 FCC Rcd at 7997, para. 66 (“As we have found above, the most reasonable interpretation of ‘prior express consent’ in light of the TCPA’s consumer protection goals is to permit a right of revocation.”); see also id. at 7993-99, paras. 55-70 (discussing revocation of consent and a consumer’s methods of revoking consent).

2^ NCLC Comments at 28; but see EFC Comments at 8; NSC Comments at 13.

3^ Budget Act § 301(a)(2)(C) (adding 47 U.S.C. § 227(b)(2)(H)).

4^ The TCPA does not prohibit callers from manually dialing these calls even if the consumer requests that the caller cease making autodialed, artificial-voice, and prerecorded-voice calls. CFPB Comments at 10; SLSA Comments at 30-31; ISL Comments at 2.

5^ See, e.g., Markey Nov. 18, 2016 Letter at 1; MFY Comments at 2; NCLC Comments at 3; AFR Comments at 2; CAC Comments at 2.

6^ See para. 5, supra.

1^ ACA Declaratory Ruling, 23 FCC Rcd at 564-65, paras. 9-10 (discussing calls made “in connection with an existing debt”). While the Commission is not imposing specific record-keeping requirements for stop-calling requests, callers bear the burden of proof should there be any dispute about such requests. Callers, therefore, are advised to maintain a record of such requests and to transfer them to subsequent callers along with other information about the debt.

2^ NCHER Comments at 14.

3^ Compare CMC Comments at 16 with NCLC Comments at 29.

1^ Brown Letter at 2; Markey Jun. 8, 2016 Letter at 1; CFPB Comments at 11.

2^ FTC BCP Staff Comments at 11; see also CAC Comments at 2.

3^ ConServe Comments at 11.

4^ ACA Comments at 19.

5^ See Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 651 (1985) (disclosure requirements are consistent with the First Amendment so long as they are “reasonably related to the [government's] interest in preventing deception of consumers”). The disclosure we require here prevents deception because, without the disclosure, consumers may be deceived into believing that they must be subject to these federal debt collection calls. See also Am. Meat Inst. v. U.S. Dep’t. of Agric., 760 F.3d 18, 27 (D.C. Cir. 2014).

6^ 47 U.S.C. § 227(d)(3).

1^ See 2015 TCPA Declaratory Ruling and Order, 30 FCC Rcd at 7996, para. 64.

2^ See FTC BCP Staff Comments at 11 (“FTC staff supports expanding the opt-out mechanisms for telemarketing robocalls to the covered debt collection calls due to the similar significant impact on consumer privacy.”).

3^ Cf. 47 CFR § 64.1200(b)(3); 47 CFR § 64.1200(a)(7)(i)(B); see also 16 CFR § 310.4(b)(1)(v)(B)(ii)(A)-(B); FTC BCP Staff Comments at 10; NCLC Comments at 30; NCHER Comments at 15.

1^ Budget Act § 301(a)(2)(C) (adding 47 U.S.C. § 227(b)(2)(H)).

2^ Budget Act § 301(a)(2)(C) (adding 47 U.S.C. § 227(b)(2)(H)).

1^ Budget Act § 301(a)(2)(C) (adding 47 U.S.C. § 227(b)(2)(H)).

2^ See, e.g., FTC BCP Staff Comments at 7-8; ACA Comments at 10-11; NCHER Comments at 5; EFC Comments at 4; NCLC Comments at 20.

3^ See FTC BCP Staff Comments at 3; CMC Comments at 17.

1^ Budget Act § 301(a)(2)(C) (adding 47 U.S.C. § 227(b)(2)(H)).

1^ NSC Comments at 8.

2^ EFC Comments at 7.

3^ CU Comments at 4; MFY Comments at 2; AFR Comments at 2; NCLC Comments at 25; YI Comments at 2.

4^ NCLC Comment at 3.

5^ CAC Comments at 2.

1^ See, e.g., NCHER Comments at 12-13; CFBP Comments at 11-12; Letter from Timothy M. Fitzgibbon, Senior Vice President, National Council of Higher Education Resources, to Marlene H. Dortch, Secretary, FCC at 3 (Apr. 05, 2016) (on file in CG Docket No. 02-278) (NCHER Letter); NSC Comments at 10-11; ECF Comments at 8; OSLA Comments at 2; NCHER Comments at 13; AFSA Comments at 8; ACA Comments at 20; ConServe Comments at 2; CMC Comments at 15; ISL Comments at 2; ABA/CBA Comments at 11-12; SLSA Comments at 28.

2^ ECF Comments at 8; NCHER Comments at 13; NCLC Comments at 26; SLSA Comments at 29.

3^ CFPB Comments at 11-12; NCLC Comments at 26; SLSA Comments at 29.

1^ AFSA Comments at 8.

2^ CFPB Comments at 12; EF Comments at 8.

3^ See https://en.wikipedia.org/wiki/Short_Message_Service.

1^ See 47 CFR § 64.1200(c)(1). One commenter argues that it “cannot determine which time zone the borrower is in.” Nelnet Comments at 15. Another commenter states that it has adopted operational practices involving ZIP codes to better determine a consumer’s likely location rather than relying on area code. ECMC Comments at 8. The rule we adopt today is the same as our time-of-day restriction on telemarketing calls and as the FTC’s Telemarketing Sales Rule. This restriction has not proved unworkable, and we do not anticipate that it will be unfeasible here.

2^ See, e.g., Markey June 8, 2016 Letter at 1; EFC Comments at 8; NCHER Comments at 12; NCLC Comments at 3; ACA Comments at 9-20; CAC Comments at 2.

3^ FTC BCP Staff Comments at 9-10.

1^ See CFPB Comments at 4; FTC BCP Staff Comments at 1.

1^ 47 U.S.C. § 227(b)(1)(B) (requiring prior express consent for all non-emergency artificial- or prerecorded-voice calls to residential lines unless exempted by the Commission).

2^ 47 CFR § 64.1200(a)(3); 1992 TCPA Order, 7 FCC Rcd at 8755, para. 5

3^ ACA Declaratory Ruling, 23 FCC Rcd at 565, para. 11.

1^ Budget Act § 301(a)(2)(C) (adding 47 U.S.C. § 227(b)(2)(H)).

2^ ABA/CBA Comments at 9; see also Navient Comments at 15-16; NCHER Comments at 15; ConServe Comments at 12; ECMC Comments at 11; SLSA Comments at 32.

1^ Budget Act § 301(a)(2)(C) (adding 47 U.S.C. § 227(b)(2)(H)).

2^ Budget Act § 301(a)(1)(A) (amending 47 U.S.C. § 227(b)(1)(A)(iii)).

1^ 47 U.S.C. § 227(b)(2)(C) (authorizing the Commission to exempt certain calls made “to a number assigned to a cellular telephone service” from the requirements of Section 227(b)(1)(A)(iii)).

2^ See, e.g., Vonage Holdings Corp. v. FCC, 489 F.3d 1232, 1240 (D.C. Cir. 2007).

1^ See 2015 TCPA Declaratory Ruling and Order, 30 FCC Rcd at 7988, para. 43 n.174. The Commission also has taken a similar consumer-oriented approach to wireless services in other contexts. See also Implementation of Section 6002(b) of the Omnibus Budget Reconciliation Act of 1993, Annual Report and Analysis of Competitive Market Conditions With Respect to Mobile Wireless, Including Commercial Mobile Services, WT Docket No. 13-135, Seventeenth Report, 29 FCC Rcd 15311, 15314, para. 3 (WTB 2014) (“Similar to previous reports, the analysis in this Report is based on a consumer-oriented view of mobile services, with a focus on specific product categories regardless of their regulatory classification.”).

1^ See, e.g., Washington Legal Foundation v. U.S. Sentencing Commission, 17 F.3d 1446, 1450 (D.C. Cir. 1994).

1^ NCLC Comments at 16.

2^ AACC Comments at 2.

3^ UNCF Comments at 2.

1^ Budget Act § 301(a)(2)(C) (adding 47 U.S.C. § 227(b)(2)(H)).

2^ Budget Act § 301(b).

1^ Budget Act § 301(a)(1)(A) (amending 47 U.S.C. § 227(b)(1)(A)(iii)).

2^ We find no support for the claim in one dissent that “[t]he Budget Act exemption was designed to protect federal agencies and their contractors from liability when they make calls without consent of the called party,” or that the “intent of the law . . . was to enable lenders to use modern dialing equipment as part of their efforts to collect debt.” No legislative history is cited for these assertions, nor does any appear to exist. Further, had Congress wanted callers to be wholly exempt from liability, or never to manually place calls, it would not have granted the Commission express authority to adopt rules limiting the number and duration of debt-collection robocalls.

3^ Broadnet Declaratory Ruling, FCC 16-72 at para. 10.

4^ See id.

5^ In reaching this conclusion, we note that the Budget Act amendments to the TCPA were enacted some 25 years after the statute first became law.

1^ See, e.g., Fogerty v. Fantasy, Inc., 510 U.S. 517, 527-233 (1994), citing Lorillard v. Pons, 434 U.S. 575, 580 (1978) (Congress is presumed to be aware of an administrative or judicial interpretation of a statute); Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 184 (1988) (Congress is presumed to know the existing law pertinent to the legislation it enacts); Hernstadt v. FCC, 677 F.2d 893, n.22 (D.C. Cir. 1980) (“Congress is presumed to be cognizant of, and legislate against the background of, existing interpretations of law.”); Letter from Robert E. Latta, United States Congress, to Marlene H. Dortch, Secretary, FCC at 1 (July 8, 2015) (on file in CG Docket No. 02-278) (writing in support of petitions filed by Broadnet Teleservices, LLC, and RTI International, Inc., seeking clarification that the “Commission’s TCPA rules do not apply to calls made by or on behalf of local, state and federal governments”).

2^ To be clear, in the Broadnet Declaratory Ruling the Commission found that the federal government and its agents are not persons under section 227(b)(1). See Broadnet Declaratory Ruling, FCC 16-72 at para. 10.

1^ 47 U.S.C. § 227(b)(2)(H).

1^ See Vermont Agency of Natural Resources v. Unites States ex rel. Stevens, 529 U.S. 765, 781 (2000).

2^ In this regard, we agree with the statement in one dissent that “[t]he structure is key” when interpreting paragraph (b)(2). We see no relevance, however, to the fact that the FCC has not previously found relevant the omission of the word “person” in subparagraphs other than (b)(2)(H). The agency’s prior silence is this regard has no bearing on the issues now before us, and should not be read as some kind of implicit endorsement of a view contrary to the one we now adopt.

3^ See Statement of Commissioner Pai to Broadnet Declaratory Ruling (stating that “[t]he federal common law of immunity is a general body of law that covers numerous agencies,” and the FCC “cannot opine . . . on its scope or meaning”).

1^ NPRM at para. 16.

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