Daily Rules, Proposed Rules, and Notices of the Federal Government
For additional information concerning the Paperwork Reduction Act (PRA) new information collection requirements contained in document FCC 12-129, contact Cathy Williams, Federal Communications Commission, at (202) 418-2918, or via email
This is a summary of the Commission's Report and Order, FCC 12-129, adopted on October 17, 2012, and released on October 17, 2012, in CG Docket No. 12-129. Document FCC 12-129 and the rules adopted therein shall become effective no less than six months after publication of a Public Notice in the
The Commission will send a copy of document FCC 12-129 to Congress and the Government Accountability Office pursuant to the Congressional Review Act,
Document FCC 12-129 contains new information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, will invite the general public to comment on the information collection requirements contained in document FCC 12-129 as required by the PRA of 1995, Public Law 104-13 in a separate notice that will be published in the
The rules adopted in document FCC 12-129 establish recordkeeping requirements for a large variety of entities, including small business entities. First, each PSAP may designate a representative who shall be required to file a certification with the administrator of the PSAP registry that they are authorized to place numbers onto that registry. The designated PSAP representative shall provide contact information including the PSAP represented, name, title, address, telephone number and email address. Verified PSAPs shall be permitted to upload to the registry any PSAP telephone associated with the provision of emergency services or communications with other public safety agencies. On an annual basis, designated PSAP representatives shall access the registry, review their numbers and remove any ineligible numbers from the registry. Second, an operator of automatic dialing equipment (OADE) is prohibited from contacting any number on the PSAP registry. Each OADE must register for access to the PSAP registry by providing contact information which includes name, business address, contact person, telephone number, email, and all outbound telephone numbers used to place autodialed calls. All such contact information must be updated within 30 days of any change. In addition, the OADE must certify that it is accessing the registry solely to prevent autodialed calls to numbers on the registry. An OADE must access and employ a version of the PSAP registry obtained from the registry administrator no more than 31 days prior to the date any call is made, and maintain record documenting this process. No person or entity may sell, rent, lease, purchase, share, or use the PSAP registry for any purpose expect to comply with our rules prohibiting contact with numbers on the registry. In order to ensure that all interested parties will be provided with reasonable notice once the PSAP registry becomes operational, the rules adopted herein will not become effective until a Public Notice is published which sets an effective date of no less than six months after publication of the Public Notice.
2. Section 6507(b)(1) of the Tax Relief Act states that “verified [PSAP] administrators or managers” will be permitted to add numbers to the registry. The Commission concludes that PSAPs may designate a representative who shall be required to file with the Commission or the designated administrator of the registry a certification, under penalty of law, that he/she is authorized and eligible to add numbers to the registry on behalf of that PSAP. As part of that certification, the representative shall provide contact information, including the PSAP name, contact person, title, address, telephone number, and email address. The Commission or administrator of the PSAP registry may require a follow-up response from a valid PSAP email address or some other means of confirmation to be specified by the Commission or administrator of the registry. Each verified PSAP shall then be assigned a unique identification number or password which shall be required to be entered every time the PSAP requests that numbers be placed onto the registry. The Commission emphasizes that only PSAP numbers submitted by a verified PSAP shall be allowed on the registry and shall remain on the registry until such numbers are removed by the PSAP or it is determined during the statutorily-required verification process that such numbers are no longer eligible for inclusion.
4. Section 6507(b)(3) of the Tax Relief Act requires the Commission to “provide a process for granting and tracking access to the registry by the operators of automatic dialing equipment.” Consistent with this statutory mandate, the Commission finds that registry access should be restricted to OADEs for the limited purpose of ensuring compliance with the prohibition on contacting PSAP numbers in the registry. The only information that OADEs need to comply with section 6507 of the Tax Relief Act is the list of registered telephone numbers. The Commission concludes that any person or entity who uses an “automatic telephone dialing system,” as defined in section 227(a)(1) of the Communications Act, to make calls qualifies as an operator of “automatic dialing” or “robocall” equipment for purposes of the Tax Relief Act.
5. The Commission require that any OADE that accesses the PSAP registry provide to the Commission or the designated administrator of the registry a certification, under penalty of law, that it is accessing the registry solely to determine whether any telephone numbers to which it intends to place autodialed calls are listed on such registry for the purpose of complying with section 6507 of the Tax Relief Act. The first time an OADE accesses the registry, the OADE will be required to establish a profile and provide identifying information about its organization that will include the operator's name and all alternative names under which the registrant operates, a business address, a contact person, the contact person's telephone number, the OADE's email address, and all telephone numbers used to place autodialed calls, including both originating numbers and numbers that are displayed on caller ID.
6. The Commission requires that all such contact information be updated within 30 days of the date on which any change occurs. The Commission or administrator will assign every OADE granted access to the PSAP registry a unique identification number or password, which must be submitted each time that database is accessed. The Commission or the administrator will use this unique identifier to grant and track access to the secure database of registered PSAP numbers.
7. In the PSAP Do-Not-Call NPRM, the Commission sought comment on how often OADEs should be required to access the registry of PSAP numbers and update their calling lists to avoid calling registered PSAP numbers. The Commission noted that the TCPA rules require telemarketers to “employ a version of the national do-not-call registry obtained from the administrator of the registry no more than 31 days prior to the date any call is made, and maintain records documenting this process.” The Commission adopts this proposed timeframe for accessing the PSAP registry. The Commission retains the flexibility to revisit this finding and delegate authority to the Consumer and Governmental Affairs Bureau to modify this requirement as necessary.
8. Section 6507(b)(4) of the Tax Relief Act requires the Commission to “protect the list of registered numbers from disclosure or dissemination by parties granted access to the registry.” The Commission adopts a rule that prohibits parties from selling, renting, leasing, purchasing, sharing, or using the PSAP registry, or any part thereof, for any purpose except compliance with this section and any state or Federal law enacted to prevent autodialed calls to telephone numbers in the registry. The Commission limits access to the registry to OADEs and require that each OADE certify, under penalty of law, that it will access the registry solely to prevent autodialed calls to numbers on the registry.
10. Section 6507(b)(5) of the Tax Relief Act directs the Commission to
12. The Commission agrees with commenters that these emergency calls should not be prohibited under our new rules and note that no commenter opposes this conclusion. Section 6507(b)(5) of the Tax Relief Act requires the Commission to establish rules prohibiting autodialed calls to registered PSAP numbers. In contrast to analogous sections of the TCPA, however, the Tax Relief Act does not prohibit such autodialed calls directly. Instead, the Tax Relief Act gives the Commission discretion to define the precise scope of the prohibition. In defining the scope, the Commission is informed by public safety objectives underlying section 6507 of the Tax Relief Act. In addition, section 6003 of the Tax Relief Act directs the Commission to implement and enforce section 6507 of the Tax Relief Act as though it were part of the Communications Act. Therefore, the Commission interpretation is also informed by the principles of the Communications Act, which includes promoting “the safety of life and property through the use of wire and radio communication services.” Moreover, the Commission believes it is consistent with the intent of section 6507 of the Tax Relief Act and in the public interest to recognize an exception for autodialed emergency purpose calls which promote public safety. Stated differently, the Commission believes that banning autodialed emergency calls to PSAPs would be inconsistent with section 6507 of the Tax Relief Act's goal of improving PSAPs' ability to respond to emergencies.
13. For purposes of the PSAP registry, the Commission adopts the existing definition in its rules, as set forth in the TCPA context, and defines an “emergency purpose” as a “call made necessary in any situation affecting the health or safety of consumers.”
16. Section 6507(c)(3) of the Tax Relief Act requires the Commission to set amounts within these ranges depending “upon whether the conduct leading to the violation was negligent, grossly negligent, reckless, or willful, and depending on whether the violation was a first or subsequent offence.” Because the Tax Relief Act does not define these terms, the Commission finds it reasonable, to the extent that the it has defined such terms in an enforcement context, to use those definitions for purposes of the Tax Relief Act. For example, section 503(b)(1) of the Communications Act authorizes the Commission to impose forfeitures for “willful” violations. Section 312(f)(1) of the Communications Act defines “willful” as the “conscious and deliberate commission or omission of [any] act, irrespective of any intent to violate” the law. The legislative history to section 312(f)(1) of the Communications Act clarifies that this definition of willful applies to both sections 312 and 503(b) of the Communications Act, and the Commission has so interpreted the term in the section 503(b) context. In addition, section 503(b)(2)(E) of the Communications Act and § 1.80(b)(6) of the Commission's rules set forth the factors to be considered when determining the amount of forfeiture penalties. Specifically, these provisions require that the Commission “take into account the nature, circumstances, extent and gravity of the violation and, with respect to the violator, the degree of culpability, any history of prior offenses, ability to pay, and such other matters as justice may require.” The Commission believes these provisions are broad enough to encompass the factors necessary to distinguish between negligent, grossly negligent, reckless or willful conduct, as used in the Tax Relief Act, without the need for further clarification on this point in its rules. The Commission will determine the nature of the violation on a case-by-case basis, consistent with Commission precedent.
19. As required by the Regulatory Flexibility Act of 1980, as amended, (RFA) an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the Notice of Proposed Rulemaking (PSAP Do-Not-Call NPRM) released by the Commission on May 22, 2012. The Commission sought written public comments on the proposals contained in the PSAP Do-Not-Call NPRM, including comments on the IRFA. None of the comments filed in this proceeding were specifically identified as comments addressing the IRFA; however, comments that address the impact of the proposed rules and policies on small entities are discussed below. This present Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.
20. The “Middle Class Tax Relief and Job Creation Act of 2012” requires the Commission to establish a registry that allows PSAPs to register telephone numbers on a Do-Not-Call list and prohibits the use of automatic dialing or “robocall” equipment to contact those numbers. This requirement is designed to address concerns about the use of autodialers, which can generate large numbers of phone calls, tie up public safety lines, and divert critical responder resources away from emergency services. Document FCC 12-129 adopts rules to implement this statutory requirement as set forth in section 6507 of Tax Relief Act.
21. No comments were raised directly in response to the IRFA. Some commenters, however, raised issues concerning the impact of the proposed rules on small entities.
24. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that will be affected by the proposed rules, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. Under the Small Business Act, a “small business concern” is one that: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) meets any additional criteria established by the Small Business Administration (SBA).
25. In general, the Commission's rule prohibiting the use of automatic dialing equipment to contact numbers on the PSAP Do-Not-Call registry apply to a wide range of entities. The rules, in particular, would apply to all operators of automatic dialing equipment. Therefore, the Commission expects that the requirements adopted in this proceeding could have a significant economic impact on a substantial number of small entities. Determining the precise number of small entities that would be subject to the requirements in the document FCC 12-129, however, is not readily feasible. Below, the Commission has described some current data that are helpful in describing the number of small entities that might be affected by its action.
26. Nationwide, there are a total of approximately 29.6 million small businesses, according to the SBA. A “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” Nationwide, as of 2007, there were approximately 1.6 million small organizations.
29. The Tax Relief Act requires the Commission to establish a Do-Not-Call registry for PSAPs. The Act specifies that PSAPs will be permitted to register telephone numbers on this registry. This allows PSAPs or their designated representatives to review their current telephone numbers and then provide those numbers to the administrator of the registry for inclusion on the PSAP Do-Not-Call registry. This will necessitate some administrative functions such as designating a representative to provide contact information on behalf of the PSAP and to obtain a unique number or password used to upload numbers onto the registry. In addition, the PSAP must develop a process to verify on an annual basis that the registered numbers should continue to appear on the registry. This will require PSAPs to check and verify at least once a year which numbers should continue to be included on the registry.
30. The Tax Relief Act also prohibits the use of automatic dialing or “robocall” equipment to contact numbers listed on the Do-Not-Call registry. As a result, operators of automatic dialing equipment will be required to check the registry and update their calling systems no later than each 31 days to ensure that they do not contact any telephone number listed on the PSAP Do-Not-Call registry. In order to access the registry, operators of automatic dialing equipment will be required to provide contact information and certify that they will not use the telephone numbers for any purpose other than compliance with this Act. In addition, OADEs will need to develop a process to ensure that the list of registered numbers obtained from the PSAP Do-Not-Call registry is not disclosed or disseminated for any purpose other than compliance with the Tax Relief Act. Such a process may entail training personnel, recording access to such information in a secure manner, and updating automatic dialing systems to ensure that such equipment
31. Many operators of automatic dialing equipment subject to the Commission's rules are familiar with the rules adopted for compliance with the TCPAs analogous prohibitions on use the autodialers and the National Do-Not Call registry. Therefore, the Commission has adopted similar requirements herein to reduce compliance burdens and confusion. For example, the Commission has adopted the TCPA's definition of an autodialer and “emergency purpose” for use in this context of the PSAP registry. In addition, the Commission has adopted the same requirement that callers update and scrub any numbers listed on the PSAP registry no later than every 31 days; the same time frame which is required for the National Do-Not-Call registry. As part of the process to access the PSAP registry, the Commission has required OADEs to provide certain information including all telephone numbers used to place autodialed calls. A few commenters indicated that the provision of this information might be burdensome. The Commission concluded, however, that this information is necessary to trace the calling party in investigating any potential violation of its rules. In addition, the Commission provides substantial flexibility to PSAPs to determine which numbers they wish to upload onto the registry. The Commission requires PSAPs to check the registry on an annual basis to ensure that the numbers they have registered should remain on that registry. A few commenters suggested an alternative approach which would have required PSAPs to check the registry once only every seven years. The Commission concluded, however, that an annual review better ensures the accuracy of the database while imposing minimal burdens on the PSAP.
32. Pursuant to sections 1, 2, 4(i), 227, and 503 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 227, 503, and sections 6003 and 6507 of the Middle Class Tax Relief and Job Creation Act of 2012, that document FCC 12-129
33. The Consumer and Governmental Affairs Bureau and Office of the Managing Director are delegated authority to take actions necessary to resolve any operational or administrative details relating to the Public Safety Answering Point Do-Not-Call registry including an announcement of the effective compliance date once the PSAP Do-Not-Call registry has become operational.
34. The Consumer and Governmental Affairs Bureau set an effective date of no less than six months after publication of a Public Notice announcing the date by which interested parties must begin compliance with the requirements adopted herein.
35. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center,
Administrative practice and procedure.
Reporting and recordkeeping requirements, Telecommunications, Telephone.
For the reasons discussed in the preamble, the Federal Communications Commission amends parts 1 and 64 as follows:
15 U.S.C. 79
(a) * * *
(6) Violated any provision of section 6507 of the Middle Class Tax Relief and Job Creation Act of 2012 or any rule, regulation, or order issued by the Commission under that statute.
(b) * * *
(5) If a violator who is granted access to the Do-Not-Call registry of public safety answering points discloses or disseminates any registered telephone number without authorization, in violation of section 6507(b)(4) of the Middle Class Tax Relief and Job Creation Act of 2012 or the Commission's implementing rules, the monetary penalty for such unauthorized disclosure or dissemination of a telephone number from the registry shall be not less than $100,000 per incident nor more than $1,000,000 per incident depending upon whether the conduct leading to the violation was negligent, grossly negligent, reckless, or willful, and depending on whether the violation was a first or subsequent offense.
(6) If a violator uses automatic dialing equipment to contact a telephone number on the Do-Not-Call registry of public safety answering points, in violation of section 6507(b)(5) of the Middle Class Tax Relief and Job Creation Act of 2012 or the Commission's implementing rules, the monetary penalty for contacting such a telephone number shall be not less than $10,000 per call nor more than $100,000 per call depending on whether the violation was negligent, grossly negligent, reckless, or willful, and depending on whether the violation was a first or subsequent offense.
47 U.S.C. 154, 254(k); 403(b)(2)(B), (c), Pub. L. 104-104, 110 Stat. 56. Interpret or apply 47 U.S.C. 201, 218, 222, 225, 226, 227, 228, 254(k), 616, 620, and the Middle Class Tax Relief and Job Creation Act of 2012, Pub. L. 112-96, unless otherwise noted.
(a) As used in this section, the following terms are defined as: