Implementation of the Middle Class Tax Relief and Job Creation Act of 2012; Establishment of a Public Safety Answering Point Do-Not-Call Registry, 71131-71138 [2012-27672]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 77, Number 230 (Thursday, November 29, 2012)]
[Rules and Regulations]
[Pages 71131-71138]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-27672]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 1 and 64

[CG Docket No. 12-129; FCC 12-129]


Implementation of the Middle Class Tax Relief and Job Creation 
Act of 2012; Establishment of a Public Safety Answering Point Do-Not-
Call Registry

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document, the Commission adopts rules to create a Do-
Not-Call registry for public safety answering points (PSAPs) as 
required by the ``Middle Class Tax Relief and Job Creation Act of 
2012'' (Tax Relief Act). Specifically, section 6507 of the Tax Relief 
Act requires the Commission, among other things, to establish a 
registry that allows PSAPs to register telephone numbers on a Do-Not-
Call list and prohibit the use of automatic dialing equipment to 
contact those numbers. Therefore, the Commission adopts rules necessary 
for the creation and ongoing management of the Do-Not-Call registry, 
including requirements for

[[Page 71132]]

adding PSAP telephone numbers, granting and tracking access by 
operators of automatic dialing equipment, and protecting the registry 
from unauthorized disclosure or dissemination of registered numbers. In 
addition, the Commission adopts specific monetary penalties for 
unauthorized disclosure or contact of any numbers on the PSAP registry. 
These provisions are designed to address concerns about the use 
automatic dialing equipment which can generate large numbers of phone 
calls in a short period of time, tie up public safety lines, divert 
critical responder resources away from emergency services, and impede 
access by the public to emergency lines.

DATES: This final rule contains new information collection requirements 
that have not been approved by the Office of Management and Budget 
(OMB). The Commission will publish a separate document in the Federal 
Register announcing the effective date of that rule section.

ADDRESSES: Federal Communications Commission, 445 12th Street SW., 
Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT: Richard D. Smith, Consumer and 
Governmental Affairs Bureau, Policy Division, at (717) 338-2797 
(voice), or email Richard.Smith@fcc.gov.
    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 Cathy.Williams@fcc.gov and PRA@fcc.gov.

SUPPLEMENTARY INFORMATION:  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 Federal Register 
announcing the effective date of the rules once the PSAP Do-Not-Call 
registry becomes operational and by which affected parties must begin 
compliance. The full text of document FCC 12-129 and copies of any 
subsequently filed documents in this matter will be available for 
public inspection and copying via ECFS, and during regular business 
hours at the FCC Reference Information Center, Portals II, 445 12th 
Street SW., Room CY-A257, Washington, DC 20554. They may also be 
purchased from the Commission's duplicating contractor, Best Copy and 
Printing, Inc., Portals II, 445 12th Street SW., Room CY-B402, 
Washington, DC 20554, telephone: (202) 488-5300, fax: (202) 488-5563, 
or Internet: www.bcpiweb.com. This document can also be downloaded in 
Word or Portable Document Format (``PDF'') at https://www.fcc.gov/document/fcc-initiates-proceeding-create-public-safety-do-not-call-registry. To request materials in accessible formats for people with 
disabilities (Braille, large print, electronic files, audio format), 
send an email to fcc504@fcc.gov or call the Consumer and Governmental 
Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY).

Congressional Review Act

    The Commission will send a copy of document FCC 12-129 to Congress 
and the Government Accountability Office pursuant to the Congressional 
Review Act, see 5 U.S.C. 801(a)(1)(A).

Final Paperwork Reduction of 1995 Analysis

    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 Federal Register. In addition, the 
Commission notes that pursuant to the Small Business Paperwork Relief 
Act of 2002, Public Law 107-198, 44 U.S.C. 3506(c)(4), it previously 
sought specific comment on how it might further reduce the information 
collection burden for small business concerns with fewer than 25 
employees. In document FCC 12-129, the Commission has assessed the 
potential effects of the policy changes with regard to information 
collection burdens on small business concerns, and finds these 
requirements will implement the statutory mandate to create a PSAP do-
not-call registry and prohibit the use of autodialers to contact those 
numbers in a way that minimizes regulatory compliance burdens. In 
addition, the Commission has described the impacts that might affect 
small businesses, which includes most businesses with fewer than 25 
employees, in the Final Regulatory Flexibility Analysis.
    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.

Synopsis

Establishment of a PSAP Do-Not-Call Registry

    1. Numbers and Registration. The Commission concludes 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

[[Page 71133]]

emergency calls. In addition, the Commission concludes 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.
    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.
    3. Verification that numbers should remain on the registry. Section 
6507(b)(2) of the Tax Relief Act requires that the Commission ``provide 
a process for verifying, no less frequently than once every 7 years, 
that registered numbers should continue to appear upon the registry.'' 
The Commission concludes that, to give PSAPs flexibility and promote 
accuracy of the registry, PSAPs should be permitted to remove numbers 
from the registry at any time. In order to minimize PSAPs' compliance 
burdens while ensuring an accurate registry, we require that PSAPs 
access and review their registered numbers on an annual basis. To aid 
PSAPs in this process, the Commission directs the designated 
administrator of the registry to send an annual notification to each 
PSAP that has placed numbers on the registry reminding PSAPs of their 
continuing obligation to verify their registered numbers. PSAP 
representatives may request removal of numbers by providing the unique 
identification number or password assigned to the PSAP for purposes of 
placing numbers onto the registry.

Granting and Tracking Access to the Registry by Operators of Automatic 
Dialing Equipment

    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.

Protecting the Registry From Unauthorized Disclosure or Dissemination

    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.
    9. Limiting registry access to OADEs. Some OADEs are marketers that 
make autodialed calls on behalf of other entities, e.g., the sellers of 
products, goods, or services. 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,'' but does not contemplate access by such third parties who 
are not OADEs. In light of the statute's goal of protecting registered 
PSAP numbers, the Commission finds that access to the registered 
numbers should be limited to OADEs that have complied with the 
authorized process to obtain access to that information.

Prohibiting the Use of Automatic Dialing or ``Robocall'' Equipment To 
Contact Registered PSAP Numbers

    10. Section 6507(b)(5) of the Tax Relief Act directs the Commission 
to

[[Page 71134]]

issue regulations prohibiting ``the use of automatic dialing or 
`robocall' equipment to establish contact with registered numbers.'' 
The Commission prohibits OADEs from contacting any PSAP number on the 
PSAP Do-Not-Call registry other than for an emergency purpose. Further, 
the Commission agrees with commenters who support its proposal that the 
prohibition should include the use of an autodialer to make text 
message calls in addition to voice calls to numbers on the PSAP 
registry.
    11. Use of autodialers for emergency calls. Commenters note that 
government-operated emergency notification systems and specialized 
personal emergency response services use automated dialing systems to 
route calls to the appropriate PSAP when a need for public safety 
services has been verified. These systems are used by government and 
personal emergency response entities to convey emergency information, 
for example, the location of an automobile accident. The record 
confirms that these emergency calls have contributed to significant 
improvements in public safety as well as in emergency response efforts, 
and the Commission therefore believes they should be exempted from the 
prohibition on autodialer-initiated calls to PSAP numbers.
    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.''
    14. Definitions. As noted above, the Tax Relief Act does not define 
``automatic dialing'' or ``robocall'' equipment. The Commission 
believes, however, that these terms are equivalent to ``automatic 
telephone dialing system'' as defined in the TCPA and commonly referred 
to as ``robocalling'' equipment. Specifically, the TCPA defines 
``automatic telephone dialing system'' as equipment ``which has the 
capacity to store or produce telephone numbers to be called, using a 
random or sequential number generator; and to dial such numbers.'' The 
Commission has emphasized that this definition covers any equipment 
that has the specified capacity to generate numbers and dial them 
without human intervention whether or not the numbers called actually 
are randomly or sequentially generated or come from a calling list. The 
Commission adopts the TCPA's definition of automatic telephone dialing 
system and the Commission's relevant interpretations of that term, for 
purposes of defining ``automatic dialing'' and ``robocall'' equipment 
as used in the Tax Relief Act.

Enforcement

    15. Monetary penalties. Section 6507(c) of the Tax Relief Act 
directs the Commission to establish specific monetary penalties for 
disclosure or dissemination of registered numbers by parties granted 
access to the registry and for the use of automatic dialing or 
``robocall'' equipment to establish contact with registered numbers. 
For disclosure or dissemination of registered numbers, section 
6507(c)(1) of the Tax Relief Act requires the Commission to establish 
monetary penalties that are ``not less than $100,000 per incident nor 
more than $1,000,000 per incident.'' For use of automatic dialing 
equipment to contact numbers on the registry, section 6507(c)(2) of the 
Tax Relief Act requires the Commission to establish monetary penalties 
that are ``not less than $10,000 per call nor more than $100,000 per 
call.'' Because Congress has specifically prescribed the monetary 
penalties associated with violations of section 6507 of the Tax Relief 
Act and related regulations, the Commission codifies these penalties in 
its rules. Therefore, the Commission amends Sec.  1.80 of the 
Commission's rules governing forfeiture proceedings and forfeiture 
amounts to incorporate these prescribed amounts.
    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 Sec.  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.
    17. Process for imposing monetary penalties. The Commission 
concludes that section 6507(c) of the Tax Relief Act is ambiguous on 
the question of whether the Commission must issue a citation to a non-
regulatee violator before it may impose a monetary forfeiture for 
violation of section 6507 of the Tax Relief Act. On one hand, section

[[Page 71135]]

6003 of the Tax Relief Act indicates that the enforcement provisions in 
Title V of the Communications Act, which include a citation requirement 
in some instances, should generally be applied in addressing violations 
of section 6507. At the same time, though, section 6507 of the Tax 
Relief Act addresses the appropriate monetary penalty for a first 
offence, which does not appear to contemplate the issuance of a 
citation. In light of this ambiguity, the Commission look to the 
legislative history and policies underlying the citation requirement 
and conclude that the most reasonable construction of these statutory 
provisions is to interpret section 6507(c)(3)'s ``first offence'' 
language to apply only where section 503 of the Communications Act 
permits a monetary penalty for a first offence (i.e., where the 
violator is a Commission regulatee). As the Commission previously has 
concluded, ``the legislative history indicates that the initial warning 
approach of section 503(b)(5) of the Communications Act was included in 
the amendments to protect those persons who might not reasonably know 
they were engaging in an activity regulated by the Commission.'' The 
Commission note that entities subject to enforcement for violations of 
the PSAP Do-Not-Call requirements include not only those entities 
governed by comparable Do-Not-Call requirements under the TCPA (which 
is also enforced subject to section 503(b)(5) of the Communications 
Act's citation requirement), but also other entities not subject to 
those regulations. In the case of violations of the PSAP Do-Not-Call 
requirements by a non-regulatee, the Commission therefore concludes 
that the section 503 of the Communications Act citation requirement 
applies. The Commission note, however, that the prior issuance of such 
a citation can be used as a basis both for imposing a higher penalty 
for subsequent offences and for imposing a forfeiture for the earlier 
violation at the same time. The Commission base the latter conclusion 
on the legislative history of section 503 of the Communications Act, 
which indicates that once an entity has received a citation, ``if he or 
she thereafter engaged in the conduct for which the citation of 
violation was sent [] a notice of liability [could] be issued. In such 
an event, forfeiture liability would attach not only for the conduct 
occurring subsequently but also for the conduct for which the citation 
of violation was originally sent.'' Thus, although there may be some 
instances, such as when the statute of limitations on the first 
violation has run, where the forfeiture may only be issued as to the 
subsequent violations, that will not always be the case. In those cases 
where the statute of limitations has expired, the Commission may 
nevertheless consider the first offence to support imposition of a 
higher monetary penalty for subsequent offences by a non-regulatee. As 
commenters suggest, the Commission believes that this interpretation 
will provide non-regulatees that may be less familiar with its rules 
with an opportunity to take corrective action before imposition of 
substantial monetary penalties required under section 6507(c) of the 
Tax Relief Act, while still taking first offences into consideration in 
imposing monetary penalties for subsequent violations.
    18. Safe Harbor. The Commission concludes that numbers on the PSAP 
registry require a higher level of protection from unlawful automated 
calls than the residential telephone numbers on the National DNC 
registry. In addition, section 6507(c)(3) of the Tax Relief Act 
contemplates monetary penalties even for negligent conduct. Therefore, 
the Commission declines to adopt a safe harbor from our prohibition on 
using autodialers to contact registered PSAP numbers. As discussed 
above, OADEs are required to access the registry of PSAP numbers and 
update their calling lists to delete registered PSAP numbers no later 
than every 31 days. Therefore, any numbers added to the registry in the 
31 day period following such a required update will not be subject to a 
violation of these rules because they will not be reflected in the 
OADE's download of the PSAP registry until the next required update.

Final Regulatory Flexibility Analysis

    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.

A. Need for, and Objectives of, the Order

    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.

B. Summary of Significant Issues Raised by Public Comments in Response 
to the IRFA

    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.
    22. PSAPs. Commenters representing public safety and PSAPs request 
that the Commission design flexible requirements to minimize compliance 
burdens on such entities when compiling and submitting numbers onto the 
PSAP registry. The Commission has complied with this request by 
formulating flexible requirements which allow the PSAP to designate a 
person of their own choosing to submit numbers onto the registry. This 
designated representative will be required to provide certain basic 
contact information and be subject to verification by the Commission or 
the administrator of the registry. The Commission believes this 
requirement imposes minimal burdens while taking measures to ensure 
that only verified PSAP numbers are downloaded onto the PSAP registry. 
In addition, some commenters request that PSAPs only be required to 
access and verify the numbers contained on the registry each seven 
years. However, the Commission believes that it is necessary for a more 
frequent review to occur to ensure the ongoing accuracy of the 
registry. Therefore, the Commission requires that this review take 
place on an annual basis. To aid PSAPs in the process, they will be 
sent an annual reminder.
    23. Autodialer Operators. Several commenters suggest that the 
Commission formulate its rules relating to the PSAP registry along the 
same lines as those applicable to the National Do-Not-Call registry. 
These commenters note that such regulatory consistency

[[Page 71136]]

will build upon existing knowledge and systems designed for compliance 
with the National DNC registry and, therefore, result in minimizing 
burdens that would result if such rules differ. To the extent possible, 
the Commission has followed the existing National DNC model and adopted 
requirements that are consistent with those requirements. A few 
commenters suggested that the Commission require a citation before 
issuing a monetary fine for violations of section 6507 of the Tax 
Relief Act by non-regulatees and/or adopt a safe harbor to protect 
against inadvertent violations. These commenters suggest that many 
entities subject to the rules contained herein may not be as familiar 
as Commission regulatees which necessitate some form of protection from 
substantial monetary penalties. The Commission adopts this statutory 
interpretation as it relates to the provision of a citation to non-
regulatees. As discussed at length in document FCC 12-129, the 
statutory requirements are ambiguous on this issue. However, the 
Commission believes the most reasonable statutory construction is to 
require citations for first offences by non-regulatees and take such 
first offences into consideration when determining monetary penalties 
for subsequent violations.

C. Description and Estimate of the Number of Small Entities to Which 
the Rules Will Apply

    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.
    27. Small Businesses, Small Organizations, and Small Governmental 
Jurisdictions. The Commission's action may, over time, affect small 
entities that are not easily categorized at present. The Commission 
therefore describes here, at the outset, three comprehensive, statutory 
small entity size standards that encompass entities that could be 
directly affected by the rules adopted in document FCC 12-129. As of 
2009, small businesses represented 99.9% of the 27.5 million businesses 
in the United States, according to the SBA. Additionally, 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 1,621,315 small 
organizations. Finally, the term ``small governmental jurisdiction'' is 
defined generally as ``governments of cities, counties, towns, 
townships, villages, school districts, or special districts, with a 
population of less than fifty thousand.'' Census Bureau data for 2007 
indicate that there were 89,527 governmental jurisdictions in the 
United States. The Commission estimate that, of this total, as many as 
88,761 entities may qualify as ``small governmental jurisdictions.'' 
Thus, the Commission estimates that most governmental jurisdictions are 
small.
    28. Telemarketing Bureaus and Other Contact Centers. According to 
the Census Bureau, this economic census category ``comprises 
establishments primarily engaged in operating call centers that 
initiate or receive communications for others-via telephone, facsimile, 
email, or other communication modes-for purposes such as (1) promoting 
clients' products or services, (2) taking orders for clients, (3) 
soliciting contributions for a client; and (4) providing information or 
assistance regarding a client's products or services.'' The SBA has 
developed a small business size standard for this category, which is: 
all such entities having $7 million or less in annual receipts. 
According to Census Bureau data for 2007, there were 2,100 firms in 
this category that operated for the entire year. Of this total, 1,885 
firms had annual sales of under $5 million, and an additional 145 had 
sales of $5 million to $9,999,999. Thus, the majority of firms in this 
category can be considered small.

D. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements

    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

[[Page 71137]]

is not used to contact numbers on the PSAP registry.

E. Steps Taken To Minimize Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered

    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.

Ordering Clauses

    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 is adopted.
    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, shall send a copy of document FCC 12-129, 
including the Final Regulatory Flexibility Analysis, to the Chief 
Counsel for Advocacy of the Small Business Administration.

List of Subjects

47 CFR Part 1

    Administrative practice and procedure.

47 CFR Part 64

    Reporting and recordkeeping requirements, Telecommunications, 
Telephone.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.

    For the reasons discussed in the preamble, the Federal 
Communications Commission amends parts 1 and 64 as follows:

PART 1--PRACTICE AND PROCEDURE

0
1. The authority citation for part 1 is revised to read as follows:

    Authority: 15 U.S.C. 79 et seq.; 47 U.S.C. 151, 154(i), 154(j), 
155, 157, 225, 227, 303(r), and 309, and the Middle Class Tax Relief 
and Job Creation Act of 2012, Pub. L. No. 112-96.

Subpart A--General Rules of Practice and Procedure

0
2. Amend Sec.  1.80 by adding paragraph (a)(6), redesignating 
paragraphs (b)(5) and (b)(6) as paragraphs (b)(7) and (b)(8), and add 
new paragraphs (b)(5) and (b)(6) to read as follows:


Sec.  1.80  Forfeiture proceedings.

    (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.
* * * * *

PART 64--MISCELLANEOUS RULES RELATING TO COMMON CARRIERS

0
3. The authority citation for part 64 is revised to read as follows:

    Authority: 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.

Subpart L--Restrictions on Telemarketing and Telephone Solicitation

0
4. Amend Subpart L by adding Sec.  64.1202 to read as follows:


Sec.  64.1202  Public safety answering point do-not-call registry.

    (a) As used in this section, the following terms are defined as:
    (1) Operators of automatic dialing or robocall equipment. Any 
person or entity who uses an automatic telephone dialing system, as 
defined in section 227(a)(1) of the Communications Act of 1934, as 
amended, to make telephone calls with such equipment.
    (2) Public Safety Answering Point (PSAP). A facility that has been 
designated to receive emergency calls and route them to emergency 
service personnel pursuant to section 222(h)(4)

[[Page 71138]]

of the Communications Act of 1934, as amended. As used in this section, 
this term includes both primary and secondary PSAPs.
    (3) Emergency Purpose. A call made necessary in any situation 
affecting the health and safety of any person.
    (b) PSAP Numbers and Registration. Each PSAP may designate a 
representative who shall be required to file a certification with the 
administrator of the PSAP registry, under penalty of law, that they are 
authorized and eligible to place numbers onto the PSAP Do-Not-Call 
registry on behalf of that PSAP. The designated PSAP representative 
shall provide contact information, including the PSAP represented, 
contact name, title, address, telephone number, and email address. 
Verified PSAPs shall be permitted to upload to the registry any PSAP 
telephone numbers 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 placed on the registry to ensure that they remain eligible for 
inclusion on the registry, and remove ineligible numbers.
    (c) Prohibiting the use of Autodialers to Contact Registered PSAP 
Numbers. An operator of automatic dialing or robocall equipment is 
prohibited from using such equipment to contact any telephone number 
registered on the PSAP Do-Not-Call registry other than for an emergency 
purpose. This prohibition encompasses both voice and text calls.
    (d) Granting and Tracking Access to the PSAP Registry. An operator 
of automatic dialing or robocall equipment may not obtain access or use 
the PSAP Do-Not-Call registry until it provides to the designated 
registry administrator contact information that includes 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 operator's email address, and all outbound telephone 
numbers used to place autodialed calls, including both actual 
originating numbers and numbers that are displayed on caller 
identification services, and thereafter obtains a unique identification 
number or password from the designated registry administrator. All such 
contact information provided to the designated registry administrator 
must be updated within 30 days of any change to such information. In 
addition, an operator of automatic dialing equipment must certify when 
it accesses the registry, under penalty of law, that it is accessing 
the registry solely to prevent autodialed calls to numbers on the 
registry.
    (e) Accessing the Registry. An operator of automatic dialing 
equipment or robocall equipment shall, to prevent such calls to any 
telephone number on the registry, access and employ a version of the 
PSAP Do-Not-Call registry obtained from the registry administrator no 
more than 31 days prior to the date any call is made, and shall 
maintain records documenting this process. It shall not be a violation 
of paragraph (c) of this section to contact a number added to the 
registry subsequent to the last required access to the registry by 
operators of automatic dialing or robocall equipment.
    (f) Restrictions on Disclosing or Dissemination of the PSAP 
Registry. No person or entity, including an operator of automatic 
dialing equipment or robocall equipment, may sell, rent, lease, 
purchase, share, or use the PSAP Do-Not-Call registry, or any part 
thereof, for any purpose except to comply with this section and any 
such state or Federal law enacted to prevent autodialed calls to 
telephone numbers in the PSAP registry.

[FR Doc. 2012-27672 Filed 11-28-12; 8:45 am]
BILLING CODE 6712-01-P