New Do Not Call Registry for autodialer calls to PSAPs being developed by the FCC

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There's a new compliance burden for telephone survey research in the pipeline, but we may be able to help determine how it will function.

The Federal Communication Commission (FCC) just proposed regulations to implement a new Do Not Call Registry of emergency service providers' numbers that anyone using an autodialer (including survey and opinion researchers) would have to scrub against. This builds upon the existing legal requirements in the Telephone Consumer Protection Act (TCPA), which forbids using any form of automated dialing to call "to any emergency telephone line (including any “911” line and any emergency line of a hospital, medical physician or service office, health care facility, poison control center, or fire protection or law enforcement agency)."

Important provisions of H.R. 2629 were tucked into Section 6507 of the "Middle Class Tax Relief and Job Creation Act of 2012" (P.L. 112-96), signed into law on February 22, requiring "a specialized Do-Not-Call registry for public safety answering points" (PSAPs). PSAPs include "the telephone numbers of all 9–1–1 trunks and other lines used for the provision of emergency services to the public or for communications between public safety agencies". The FCC estimates that there could be tens of thousands of such telephone numbers.

Despite MRA's attempts to discuss our concerns with the provisions' sponsors, Rep. John Shimkus (R-IL-19) and Rep. Anna Eshoo (D-CA-14) did not discuss any specifics and no public hearings were ever held. As a result, the FCC is not entirely certain how to proceed. We need to assist them, since this could have serious implications for telephone survey research.

The FCC released a Notice of Proposed RuleMaking (77 FR 37362) to seek comments on "the most efficient means of establishing a PSAP Do-Not-Call registry, the process for accessing the registry by operators of automatic dialing equipment, safeguards to protect the registry from unauthorized disclosure or dissemination, rules to prohibit the use of automatic dialing equipment to contact numbers on the registry, and the enforcement provisions."

Numbers for the Registry
"To give the Tax Relief Act meaning beyond what the TCPA requires," according to the FCC, "we believe that the Tax Relief Act should be interpreted as giving PSAP telephone numbers protections against the use of autodialed equipment that are broader ... PSAPs may be best positioned to determine which of their telephone numbers require such additional protections, and we believe we have the statutory leeway to allow them to do so... As a result, we propose that PSAPs should be given substantial discretion to designate which numbers to include on the PSAP Do-Not-Call registry so long as they are associated with the provision of emergency services or communications with other public safety agencies. This designation could include, for example, administrative lines that may be used in some cases for overflow emergency calls. In addition, we propose that secondary PSAPs should also be permitted to place numbers on the registry."

The FCC asked what sources of information autodialer users "currently use to comply with the TCPA's existing prohibitions on the use of autodialers to call emergency numbers." MRA thus seeks feedback from the research profession on how researchers currently comply with this provision of the TCPA.

Administering the Registry
The FCC is considering if the agency should run this new Registry similarly to the FTC's existing Do Not Call Registry for telemarketing. "Many telemarketers, including those that operate automatic dialing equipment, are familiar with the use of the National Do-Not-Call registry. As a result, would the use of a similar system minimize compliance burdens on operators of automatic dialing equipment?"

MRA's answer is a definitive "no", since this new Registry will impact a much broader swath of autodialer users, like survey and opinion researchers, who have never been subject to the telemarketing DNC Registry.

The FCC continues: "Consistent with the operation of the existing National Do-Not-Call registry, we propose to require that any entity that accesses the PSAP registry certify, 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.35 We propose to prohibit use of the registry by operators of automatic dialing equipment for any other purpose. We propose that the first time an operator of automatic dialing equipment accesses the registry, the operator establish a profile and provide identifying information about its organization that would 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 and email address, and a list of all outbound telephone numbers used for autodialing. We propose that all information be updated within 30 days of the date on which any change occurs. We propose that every operator of automatic dialing equipment with access to the PSAP registry be given a unique identification number, which must be submitted each time the secure database is accessed.36 We also propose that this number be used to grant and track access to the secure database of registered PSAP numbers."

The FCC has asked if it is useful to offer autodialer users "the ability to gain access to the registry by specific geographic areas of area codes?" MRA suspects that, since survey research is often national in scope, such a narrow focus would not be of use for very many researchers. But other questions require answers from researchers, including:

  • How often should users have to access the registry and update their scrubbing lists? Telemarketers currently must access the DNC Registry "no more than 31 days prior to the date any call is made".
  • How will sample providers be impacted by these regulations? The FCC attempts to tackle how to treat "vendors" making autodialer calls on behalf of other entities (expressing uncertainty that third parties on whose behalf autodialer calls are made should have access to the Regustry), but it is not clear if list providers will be able to access this new registry on behalf of autodialer users.
  • Since the law refers to "automatic dialing" and "robocall" equipment, but does not define it, is it appropriate for the FCC to thus assume that the law intended to encompass "automatic telephone dialing system" as in the current TCPA?

Enforcement, and penalties for violations
"In the case of violations of section 6507(b)(4) of the Tax Relief Act (disclosure or dissemination of registered numbers), section 6507(c)(1) requires the Commission to establish monetary penalties that are “not less than $100,000 per incident nor more than $1,000,000 per incident.”52 In the case of violations of section 6507(b)(5) (using automatic dialing equipment to contact numbers on the registry), section 6507(c)(2) requires the Commission to establish monetary penalties that are “not less than $10,000 per call nor more than $100,000 per call.”53 The Tax Relief Act specifies that these penalties vary 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.” " It is unclear if "per call" means "every call made to a number on the PSAP registry or entire calling campaigns."

Interestingly, in enforcement cases the FCC would normally "issue a citation to any violator that does not hold or is not an applicant for a Commission license, permit, certification or other authorization." That would mean that most survey researchers who violate the regulations for the first time would receive a citation, instead of immediately being subject to steep penalties. "Only if the non-licensee violator subsequently engages in conduct described in the citation may the Commission propose a forfeiture, and the forfeiture may only be issued as to the subsequent violations."

MRA advocates that the FCC apply this model of 'citation first' to the PSAP registry in order to protect researchers against accidents, errors and unintended actions.

MRA seeks researchers' feedback on the issue of third party responsibility for penalties. Is the responsibility for compliance striclty on the autodialer users, or "are there situations in which the third party should be jointly and severally liable?" As the FCC asks: "Are there any situations in which the third party entity will have a “high degree” of involvement in ensuring that the automatic dialing calls are not made to numbers on the PSAP registry?71 For example, are there situations where such third parties might become aware through complaints that an operator of automatic dialing equipment is not complying with the provisions of our proposed rules and should be subject to the monetary penalties provided in the Tax Relief Act for continued violations? Are there principles of agency law that might impose liability on third parties for the acts or omissions of the operator of automatic dialing equipment making calls on their behalf?"

MRA strongly supports a "safe harbor" floated by the FCC "for operators of automatic dialing equipment who can demonstrate that any prohibited call to or disclosure of the registered numbers is the result of an error despite routine business practices designed to ensure compliance. We note that such a provision is recognized for calls made to numbers registered on the National Do-Not-Call registry where the caller can demonstrate that it has: (1) established written procedures to comply with the Do-Not-Call rules; (2) trained its personnel, and any entity assisting in its compliance, in procedures established pursuant to the Do-Not-Call rules; (3) maintained and recorded a list of telephone numbers that it may not contact; and (4) used a process to prevent telephone solicitations to any telephone number on any list established pursuant to the Do-Not- Call rules, employing a version of the registry obtained from the administrator no more than 31 days prior to the date any call is made, and maintains records documenting this process.72 If emergency- related numbers on the PSAP Do-Not-Call registry necessitate a higher level of protection from automated calls and unauthorized disclosure, would a similar safe harbor still be appropriate in this context? Section 6507(c)(3) of the Tax Relief Act contemplates monetary penalties for negligent or grossly negligent conduct. Does this provision distinguish the PSAP situation from the TCPA one and impact our ability to create a similar safe harbor in this instance?"

The impact of these proposed regulations
The FCC admits that their proposed rules "would apply to a wide range of entitites... therefore, we expect that the proposals 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 proposed in this NPRM, however, is not readily feasible."

The only real attempt the FCC makes to consider the impact of the rules is to account for the 2,100 firms the Census Bureau counts as telemarketing bureaus and other contact centers, which do not really include survey research operations.

MRA aims to inform the FCC that these rules will have a major impact on telephone survey research and the hundreds of research companies around the country and that the rules must be very carefully crafted. But we can only advocate the research profession's position effectively if we get your feedback, questions and concerns. Please reach out today. MRA's comments are due to the FCC by July 23.