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Keywords: FCC, do not call registry, public
safety answering points, PSAPs, automatic dialing, Telephone
Consumer Protection Act, TCPA
On May 22, 2012, the Federal Communications Commission (FCC)
issued a Notice of Proposed Rulemaking to implement certain
provisions of the Middle Class Tax Relief and Job Creation Act of
2012 (Tax Relief Act). The Tax Relief Act requires the FCC to
create a Do Not Call registry for telephone numbers assigned to
emergency response facilities, known as public safety answering
points (PSAPs), and to prohibit the use of automatic dialing
equipment to contact those numbers. The Tax Relief Act establishes
monetary penalties between $10,000 and $100,000 per
call1 for entities that use automatic dialing equipment
to contact PSAPs, and between $100,000 and $1 million for entities
that disclose or disseminate registered numbers.
The Telephone Consumer Protection Act (TCPA) already prohibits
use of an automatic telephone dialing system to make non-emergency
calls to any emergency telephone line without express consent. The
Tax Relief Act proposes to give PSAPs broad discretion to determine
which numbers should go on the Do Not Call registry, including
those used by secondary PSAPs. The FCC seeks comment regarding
whether there are any types of autodialed calls that the FCC should
permit to be made to numbers on the registry, though the FCC
acknowledges that the Tax Relief Act lacked an explicit exemption
for prior express consent.
The FCC also proposes that anyone who uses an automatic
telephone dialing system qualifies as an operator of automatic
dialing equipment for purposes of the Tax Relief Act, although the
law does not use or incorporate the TCPA's "automatic
telephone dialing system" terminology or statutory definition.
The FCC proposes adopting the TCPA's definition of automatic
telephone dialing system as equipment "which has the capacity
to store or produce telephone numbers to be called, using a random
or sequential numbers generator; and to dial such numbers."
The FCC further proposes to interpret the term to include "any
equipment that has the specified capacity to generate numbers and
dial them without human intervention whether or not the numbers
called actually are randomly or sequentially generated or come from
a calling list."
The FCC is also seeking comment on how to categorize violations
by operators of automatic dialing equipment who are hired to make
calls on behalf of third parties—specifically, whether
the operator should be solely responsible for compliance, or
whether the third party should be jointly or severally liable.
Finally, the FCC is seeking comment on whether there should be a
safe harbor for operators who can demonstrate that a prohibited
call or disclosure was a result of an error despite routine
business practices designed to ensure compliance, and whether
operators should have to certify compliance with the new rules.
These proposed rules may have significant compliance
implications because they would create a Do Not Call Registry for
all types of calls, not just telemarketing calls, and are not
likely to provide a broad exemption for calls made with prior
express consent. In addition, failure to comply with the new rules
could result in significant monetary penalties.
Footnote
1. The FCC proposes to include text messages in what
constitutes a call.
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