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Vanderbilt Law Review

Article Title

Intangible Takings

Authors

Susan Eisenberg

First Page

667

Abstract

The Constitution protects us from our own best intentions."' During times of grave emergency, the powers granted and reserved by the federal government remain unaltered in order to avoid shortsighted solutions that would, in the long run, be worse than the current crisis. Even a simple cure for appreciable suffering may have larger implications, and the rule of law does not know whether it is constraining good or aiding evil.

In the aftermath of Hurricane Katrina, the most costly natural disaster in U.S. history, the Federal Communications Commission ("FCC") imposed a shortsighted resolution that tested the boundaries of its authority. Under previously unused powers to prevent the "warehousing, hoarding, and brokering of toll-free numbers," the FCC unilaterally transferred one private party's phone number to another private party, without offering any form of compensation. An entrepreneur had originally registered the number, 1-800-RED- ARMS, for his company of the same name. When the number's use increased during earthquakes, tornadoes, and floods, he realized his fateful overlap: 1-800-RED-ARMS has the same underlying keypad sequence as 1-800-RED-CROSS (1-800-733-2767). During emergencies, the entrepreneur voluntarily routed calls to local American Red Cross chapters, charging only reimbursement costs. Failed negotiations to transfer the number permanently (the charity had steadfastly refused to pay six figures) led the Red Cross to make an emergency request to the FCC. In the wake of Hurricane Katrina, which "propelled the Red Cross into its largest U.S. relief effort in history," the FCC intervened and ordered that the number be reassigned to the Red Cross."

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