5. Record-Keeping Requirements

AB 870 grants the Commission the authority to require that telemarketers who use predictive dialers maintain business records to indicate telephone connections where no person acting as an agent or telemarketer is available for the person called. The OIR proposes the following rules regarding business records:

1. All users of automatic dialing equipment described in Pub. Util. Code § 2875.5(a) shall maintain records of all calls made where no person acting as an agent or telemarketer is available for the person called.

2. Such records shall include for each such call: the date and time of the call, the number called (including area code) and the number from which the call originated.

3. For each calling device utilized, the records maintained shall also include, by calendar date, the total number of calls generated, including those both answered by human or mechanical means or unanswered.

4. Such records shall be maintained for a period of at least three years.

5. Such records shall be provided to the Commission or its staff when requested.

The Attorney General and the Consumer Coalition urge adoption of the record-keeping recommendations, regarding them as essential to ensure compliance with Pub. Util. Code § 2875.5. The Attorney General states that, without such detailed records, it is difficult to identify those responsible for hang-up calls initiated by predictive dialers.

Pacific states that it now maintains a summary report for each telemarketing campaign that includes categorizations of "connects" versus "abandons," and it can produce this summary data upon request by the Commission. WorldCom, AT&T and Sprint maintain similar summary data. All of the telemarketing parties, however, state that their tracking systems do not now include the more detailed information proposed by the OIR, and that they would need from one month to several months to program changes in their systems.

The DCA recommends that the Commission's record-keeping requirements should have the practical effect of facilitating law enforcement without needlessly burdening marketers who are willing to respect the law and people's privacy. WorldCom and others urge that the usefulness of the records and means to preserve the confidentiality of customer-specific call information, if any, should be confirmed at a Commission-led workshop. The workshop could also explore DCA's proposal that call records should be suitable for introduction as evidence without further foundation. We would expect such a workshop also to consider the length of time such records should be maintained and the amount of detail necessary and technically feasible to ensure compliance. Verizon and AT&T also urge a one-day workshop to address these and other issues raised by the parties.

We agree that a workshop is desirable to consider the record-keeping rules and the technical and other issues noted by the parties. Our order today establishes that telemarketers shall, effective July 1, 2002, maintain summary records tracking "connects" and "abandons" for calls made using predictive dialing equipment and that such data shall be made available to the Commission upon request. We direct the Telecommunications Division, within 90 days of the date of this decision, to conduct an industry workshop to consider the other record-keeping requirements. Following the workshop, we will seek further comments from the parties on adoption of final record-keeping rules.

The DCA and Sytel suggest that the Commission in this proceeding also consider means of informing the public of their rights to exercise do-not-call options. We take official notice that the Legislature recently enacted Bus. & Prof. Code §§ 17590-17595, which promulgates a rule that any person who does not wish to be called by a telemarketer may include his or her phone number on a statewide do-not-call list. The legislation provides that the Attorney General will implement the program by January 1, 2003. Meanwhile, interexchange carriers maintain their own do-not-call lists as required by the Telephone Consumer Protection Act, 47 U.S.C.A. § 227, and members of the public who do not wish to receive telemarketing calls from these interexchange carriers can call and have their numbers placed on these lists. The Direct Marketing Association maintains a do-not-call list used voluntarily by its 4,500 member companies.

Dissemination of information on do-not-call options clearly supports the primary objective of AB 870. Accordingly, we direct the Telecommunications Division and the parties at their workshop to consider and make recommendations on what steps this Commission and the industry can take (i.e., bill inserts, educational campaign) to accomplish that objective.

Finally, as part of the workshop, we ask our staff and the parties to further explore the feasibility of a 1% acceptable error rate effective January 1, 2003, and make recommendations to us for consideration in our final decision in this proceeding.