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Legal Technology: FCC Establishes Public Safety Answering Point Do-Not-Call Registry, but What about Us?

Legal Featured Article

October 22, 2012

FCC Establishes Public Safety Answering Point Do-Not-Call Registry, but What about Us?

By Peter Bernstein, Senior Editor

I realize that with a presidential election going on, and tech stock getting hammered because of earnings disappointments from none other than IBM (News - Alert), Microsoft and Google, you might have missed a little ditty from the Federal Communications Commission (FCC). On October 17, the Commission adopted its Report and Order for: “In the Matter of  Implementation of the Middle Class Tax Relief, and Job Creation Act of 2012, CG Docket No. 12-129, Establishment of a Public Safety Answering Point Do-Not-Call Registry.” 

What do you say?

The problem being addressed

This is actually serious business. To keep it very simple, it has been a persistent and growing problem that automatic dialing systems have tied up 9-1-1 trunks and other lines used for the provision of emergency services to the public or for communications between public safety agencies putting lives at risk. 

Congress in the Middle Class Tax Relief and Job Creation Action of 2012 asked the FCC (News - Alert) to set up a regime that would create a “Do-Not-Call” registry for such numbers and penalize severely those who persisted in tying up the lines. The Commission went through its usual processes of putting out a Notice of Proposed Rulemaking (NPRM) soliciting comments, establishing rules, etc.

The rules that emerged from the process are the ones that were adopted.

All of this was needed despite the FCC having implemented a regime under the 1991 Telephone Consumer Protection Act (TCPA) that prohibits certain categories of automated calls absent an emergency purpose or the prior express consent of the called party.

In fact, the Report and Order provides a bit of useful history:

“…This provision prohibits the use of “automatic telephone dialing systems” (autodialers) or artificial or prerecorded voice messages to make non-emergency calls without prior express consent to: emergency telephone lines, patient rooms in health care facilities, telephone numbers assigned to wireless services, and services for which the called party is charged for the call, among other recipients. In the 2003 TCPA Order, the Commission noted that Congress prohibited the use of such automated equipment for these types of calls because such practices were determined “to threaten public safety and inappropriately shift marketing costs from sellers to consumers.”

Citing “widespread consumer dissatisfaction” with ever-increasing numbers of telemarketing calls, in that same order the Commission revised its TCPA rules to establish a National Do-Not-Call registry, which prohibits telemarketers from contacting a residential subscriber whose telephone number appears on the registry, unless the call is subject to a recognized exception. The National Do-Not-Call registry is administered by the Federal Trade Commission (FTC (News - Alert)). At the end of fiscal year 2011, more than 209 million telephone numbers were on the National Do-Not-Call registry.

Oops! Turns out they forgot about public safety folks, and that’s what is to be addressed here. It took a while since as the FCC pointed out there was some fuzziness around what autodialing actually was, and what the procedures were going to be for establishing what a valid number to be placed on the registry might be. 

In fact, here is what they had to say:

“…We agree with commenters and conclude that PSAPs should be given substantial discretion to designate the numbers to include on the PSAP Do-Not-Call registry so long as such numbers are associated with the provision of emergency services or communications with other public safety agencies. These numbers may include, for example, numbers associated with administrative lines that may be used in some cases for overflow emergency calls….In addition, we conclude that secondary PSAPs should also be permitted to place numbers on the registry, because, as the record shows, secondary PSAPs are vulnerable to autodialed calls in the same way as primary PSAPs.”   

So there you have it. Here in the U.S. we should not have to worry about calling emergency numbers and having them turn up as busy because a marketer has hogged the line. Lives really are on the line and the punishment should be big enough to give pause to those who might not wish to invest in the software that would keep their programs from dialing PSAPs.

via Shutterstock 


My problem is that the laws about preexisting relationships are so vague that I still get more than my fair share of calls from marketers even though all of my reach numbers are on the national Do-Not-Call list. 

The one’s that really bug me are the market research people who always call during dinner. 

Anecdotally, I have unfortunately had the occasion to need immediate response from a public safety organization. It was during an election season. A robo-call for a candidate for Congress had seized my wireline and would not hang up until it completed its message. 

I was lucky to have a cell phone and help got there in time. 

This little story points out an area where the FCC still needs to do something. I’m not naïve enough to believe that I will stop getting robo-calls, particularly during elections. However, I have not seen language in anything I have read that says the receiving party of any automatically dialed call should be able to hang up and end the call. 

I will admit to not having the time or interest to have reviewed all of the legalese involved in this area so if you know of such language let me know. My suspicion is this is another “loophole.”

If it is, “Hey Congress and FCC, what about the rest of us?”



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