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September 07, 2005
The FCC Proclaims Itself the UDRP for 800 Numbers
By Eric Goldman
From Kevin Poulson's Wired story: An entrepreneur registers 800-RED-CROS[S]. He claims to have done so because it has the same number as 800-RED-ARMS, and he was running a business by that name at the time. When he realizes the fortuitous overlap, he sets up relationships with local Red Cross affiliates so that phone calls from local residents are routed (for a fee) to the local affiliate. The entrepreneur claims that half of Red Cross' local affiliates signed up to the program.
Trademark infringement? No. A useful business (in terms of making matches between interested donors and local affiliates)? Modestly. Problematic when everyone in the world is saying that the way to help Katrina victims is by donating to the Red Cross?
Apparently, the FCC thinks so. After negotiations between the entrepreneur and the Red Cross to redirect the phone number broke down, the FCC invoked its (otherwise unknown?) power to prevent the "warehousing, hoarding and brokering of toll-free numbers" and gave the phone number to the Red Cross for one year.
Am I the only person who thinks this is exactly what the Takings Clause was designed to prevent? (I think Lauren Gelman is uncomfortable too, but maybe not based on the takings doctrine). I recognize that we might feel uncomfortable treating the entrepreneur as having a property right in a telephone number (although we have a number of cases saying that registrants have a property right in domain names--see Kremer v. Cohen), but I'm even more uncomfortable with the FCC undercutting an entrepreneur's investment decisions when a non-profit can't work out an acceptable private ordering negotiation.
Posted by Eric at September 7, 2005 06:27 PM | Domain Names , Marketing
Comments
Is this better analogized to the UDRP or the ACPA?
Possibly relevant:
http://prawfsblawg.blogs.com/prawfsblawg/2005/09/price_gouging.html
Posted by: greglas at September 8, 2005 04:15 AM
Contention between vanity phone numbers and TM, and claims of "owning" a number aren't recent. The FCC's authority over phone number assignments comes from the Communications Act, 47 USC 251(e), where Congress gave the FCC oversight and authority to administer numbers, including vanity numbers. Before that, it was in-house at AT&T. The FCC has (generally, but inconsistently) asserted that no one has a property right in a given number, they are to be randomly allocated. This issue has been especially contentiontious in the toll-free number range, where the FCC even periodically cracks down on 'resellers.'
I alleged the FCC was "inconsistent" because inconsistency abounds - for example - in the initial rollout of 888 numbers, the FCC gave a right of first refusal to those with the identical 800 number.
The relevant section of US Code:
http://www4.law.cornell.edu/uscode/html/uscode47/usc_sec_47_00000251----000-.html
The FCC's FAQ on toll free:
http://www.fcc.gov/wcb/tapd/toll_free/888faq.html
Posted by: Ethan at September 11, 2005 09:24 PM