FCC Creates Do-Not-Call Registry to Protect Public Safety Communications from Robocalls

By J. Bradford Currier, Marc Martin, and Marty Stern

All users of autodialing equipment, with limited exception, will need to ensure that they do not contact phone numbers registered by Public Safety Answering Points (“PSAPs”) under a Report and Order adopted by the Federal Communications Commission that includes new enforcement mechanisms and stiff penalties for violations. The new rules apply not only to telemarketers but to commercial entities that use autodialing equipment to make informational calls, as well as to schools, charities, political campaigns, and other entities that use autodialers for non-commercial purposes.

The new rules generally mirror the existing requirements implemented in the National Do-Not-Call Registry administered by the Federal Trade Commission. Most significantly, the FCC adopted a strict liability standard for robocalls placed to PSAP numbers registered on the do-not-call registry, with no exceptions for non-solicitation, informational calls or calls placed for non-commercial purposes. Operators of automatic dialing equipment (“OADEs”) will be prohibited from using their robocalling equipment to contact a PSAP number listed on the registry, including by text, except for an emergency purpose. However, OADEs remain free to use their robocalling equipment to make PSAP calls in “situation[s] affecting the health or safety of consumers.” 

Under the new rules, PSAPs are given substantial discretion to designate which numbers to include on the registry “so long as such numbers are associated with the provision of emergency services or communications with other public safety agencies.” PSAPs will also be allowed to choose their representatives who will then file a certification with the registry operator allowing them to add numbers to the registry. PSAPs will be free to remove a number at any time from the registry and must review their registered numbers annually to confirm that no numbers should be removed. 

The new rules permit OADEs to access the list of registered PSAP numbers by filing a certification stating that it is accessing the registry solely to determine whether any telephone numbers to which it intends to place autodialed calls are listed. The certification will require OADEs to submit all of the telephone numbers used to place autodialed calls. Although some commenters suggested that the provision of all outbound numbers would be burdensome, the FCC found such a requirement necessary in order to easily trace and identify potential violators. OADEs will be required to access the PSAP registry 31 days prior to the date any call is made to avoid calling registered numbers. The Report and Order prohibits OADEs from selling, sharing, or using the PSAP registry for any purpose except compliance with the new rules. The FCC refused to establish any “safe harbor” for calls mistakenly made to registered PSAPs and will impose strict penalties for violators. For violations of the requirement prohibiting disclosure of registered PSAP numbers, the FCC may impose penalties of not less than $100,000 but no more than $1,000,000 per incident. For violations of the prohibition on contacting numbers on the registry, the FCC may impose penalties of not less than $10,000 but no more than $100,000 per call or text.

The new rules were required by the Middle Class Tax Relief and Job Creation Act of 2012, and supplement existing restrictions in the Telephone Consumer Protection Act on robocalls to emergency lines. The FCC did not establish compliance dates for the new rules, which will be announced through a Public Notice after the PSAP registry is operational.

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