FCC Adopts Rules Requiring All Users of Autodialing and Text-Messaging Equipment to Register With and Scrub Against New Public Service Answering Point Do-Not-Call Registry

by Davis Wright Tremaine LLP

[author: Ronald G. London]

On Oct. 17, 2012, the FCC adopted a Report & Order (R&O) creating a new do-not-call registry for phone numbers assigned to public safety answering points (PSAPs), and requiring all “operators of automatic dialing or robocall equipment” to register with the new registry and avoid calling numbers on the list. The new FCC rules reach virtually all commercial telemarketing, voice-broadcasting and text-messaging, all of which typically rely on automated equipment, as well as, potentially, schools, charities, employers, and anyone else who communicates via automated voice calls (live or prerecorded) or through en masse text messaging.

The new rules, which seek to prevent automated non-emergency calls to PSAP facilities (typically 911 call centers) that receive and route calls to emergency services, will not take effect until 6 months after the FCC announces a registry administrator has been chosen and that the registry is operational, informs PSAPs how and when to upload phone numbers, and instructs those required to access the registry how and when to begin doing so. But once the rules take effect, anyone using autodialing equipment must register and avoid calling numbers on the registry by downloading and scrubbing against listings that are updated at least once every 31 days. The rules also impose certification, nondisclosure, and record-keeping requirements, as well as an enforcement regime with substantial fines for violations.

The PSAP Do-Not-Call Registry R&O inserts a new § 64.1202 into the FCC rules, governing the “Public Safety Answering Point Do-Not-Call Registry” (PSAP DNCR), in order to implement § 6507 of the Middle Class Tax Relief and Job Creation Act of 2012, which mandated the registry’s creation. The rule regulates “operators of automatic dialing or robocall equipment,” defined as any entity that delivers voice calls (prerecorded or live) or text messages using “automatic telephone dialing systems.” Such systems have for PSAP DNCR purposes the same definition that the FCC uses for “autodialers” in its rules governing telephone solicitation, telemarketing, and delivery of calls to cell phones – i.e., any equipment with the capacity to store or produce phone numbers to be called using a random or sequential number generator, and to dial such numbers.

This definition covers most if not all automated telephonic delivery systems, including predictive dialers, and text message-dissemination, used for commercial and other purposes. In addition, operators can include schools, charities, and others who until now might have faced minimal or even no regulatory requirements relating to their use of autodialers/text-messaging.

Under the new rule, PSAPs will be able to place on the PSAP DNCR any phone number(s) they deem appropriate, as long as they are associated with emergency services and/or public safety agencies. Once the PSAP DNCR is up and running, all covered autodialing/robocall “operators” are prohibited from dialing or texting phone numbers on the registry for any non-emergency purpose.

To use the PSAP DNCR, covered operators will have to register by providing various contact information, as well as all outbound phone numbers used for autodialing, and updates to this information must be provided within 30 days of any change. Thereafter, registered autodialer/robocall operators must avoid calling or texting any number on the PSAP DNCR–unless the call/text is for emergency purposes–by using a version of the PSAP DNCR obtained no more than 31 days prior to the date any call is made, and they must maintain records documenting their compliance. Operators also are prohibited from selling, renting, leasing, purchasing or using PSAP DNCR data for any purpose other than to comply with these requirements, and must certify, under penalty of law, each time the registry is accessed, that they are doing so solely to prevent autodialed calls to numbers on the registry.

Again, compliance will not be required until the new PSAP DNCR is up and operational and all affected parties are instructed how to use it, the FCC issues a public notice announcing as much, and a 6-month lead-time for implementation is provided. But once the rules take effect, there are significant penalties for violations. Fines for using an autodialer to contact (or text) a number on the PSAP DNCR for non-emergency purposes, “shall be not less than $10,000 per call” and may range as high as $100,000 per call, depending on whether a violation was negligent, grossly negligent, reckless, or willful, and on whether the violation was a first or subsequent offense. Fines for disclosing or disseminating phone numbers on the PSAP DNCR without authorization “shall be not less than $100,000 per incident nor more than $1,000,000,” using the same factors as listed above to determine degree of culpability and thus severity of penalty.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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