This post was also written by Amy S. Mushahwar.

In its Open Meeting today, the Federal Communications Commission (“FCC”) placed new obligations on entities that use auto-dialers. “Robocalls” to public safety phone lines, absent an emergency purpose or prior express consent, have long been prohibited under the 1991 Telephone Consumer Protection Act (“TCPA”). However, Congress has continued to be concerned about automatic dialing equipment tying up public safety lines and impeding access to emergency services. Therefore, earlier this year, it acted to address those concerns in the Middle Class Tax Relief and Job Creation Act of 2012 (“Tax Relief Act”). Although there is some overlap between the prohibitions contained in the Tax Relief Act and the TCPA, the Tax Relief Act and today’s FCC Order implementing it create new obligations with which entities using auto-dialers will need to comply, or else risk high monetary fines.

Section 6507 of the Tax Relief Act requires that the FCC: (1) create a Do-Not-Call Registry for phone numbers associated with Public Safety Answering Points (“PSAPs”), not to be confused with the highly popular Do-Not-Call consumer registry administered by the FTC; (2) prohibit the use of automatic dialing or robocall equipment to contact those numbers for non-emergency purposes; and (3) monetarily penalize those entities that disclose for purposes unrelated to compliance, numbers listed on the new Registry, or that use automatic dialing equipment to contact those numbers for non-emergency purposes.

Under the terms of the Tax Relief Act, anyone disclosing or disseminating PSAP phone numbers listed on the Registry will be subject to a monetary penalty of between $100,000 and $1 million per incident. Entities that violate the Tax Relief Act by automatically dialing registered numbers will be subject to a monetary penalty between $10,000 and $100,000 per call. The exact size of the penalty to be imposed in any particular situation will vary depending on factors such as negligence, gross negligence, recklessness, willfulness, and whether the violation is a first or subsequent offense.

On May 22, 2012, the FCC released a Notice of Proposed Rulemaking seeking comments on numerous proposals to implement the Tax Relief Act. Today, the FCC unanimously adopted many of those proposals in a Report and Order in which it: (1) moved to establish the required Registry; (2) made clear that PSAPs would be given a great deal of discretion in deciding which numbers to list on the Registry; (3) emphasized that the use of auto-dialers by anyone, including, for example, schools and charities, to make any calls or send any texts not associated with an emergency purpose to any numbers on the Registry, would be strictly prohibited; (4) created a required certification by any entity seeking access to the Registry that it would not rent, sell or disclose (other than for their intended purpose) the numbers on the Registry; (5) adopted a requirement that auto-dialer operators access the list no more than 31 days prior to auto-dialing; and (6) moved to implement the stringent penalties set forth in the Act.

Finally, in today’s Open Meeting, FCC Chairman Julius Genachowski promised to soon release a Public Notice specifying exactly how the Registry will operate and the date on which the FCC’s new rules will become effective. Moreover, the chairman emphasized that the Agency would be issuing large penalties for violations of the new law and implementing rules, stating “there should be no confusion about that.”


Research and drafting assistance for this post was provided by Reed Smith Legal Intern Rachael E. Pashkevich.