In December 2018, the Federal Communications Commission (“FCC”) released a final report and order that established a new reassigned telephone number database for U.S.-based telephone numbers and a safe harbor from liability for callers who properly utilize the database. In the words of one FCC Commissioner, this final report and order looks to be the first step in the FCC’s “comprehensive redo” of its Telephone Consumer Protection Act (“TCPA”) rules that many in the industry have been expecting in recent months.
The FCC’s report and order includes several key elements:
- First, it gives a background on the frequency of reassigned numbers in the United States and the impact that number reassignment has on both callers and those called.
- Second, it lays out the mechanics of how the newly-established reassigned number database will work.
- Third, it establishes a safe harbor for callers who properly utilize the database prior to calling a telephone number that ultimately proves to have been reassigned.
Number reassignment is a common occurrence in the United States. It takes place when an individual disconnects his or her telephone number and the telephone provider subsequently gives the number to someone else. According to the FCC, “[a]pproximately 35 million numbers are disconnected and made available for reassignment to new consumers each year.” In its report and order, the FCC noted that number reassignment creates a host of complications for both businesses placing calls and the consumers they seek to call. When a number is reassigned, businesses may inadvertently call a new consumer, rather than the individual the business was attempting to call on the now-reassigned number. On the other hand, consumers who disconnect a number may stop receiving calls they expect (and want) if they fail to provide the business with a new telephone number. Given these factors, the FCC’s final report and order created a new, single reassigned number database to address these concerns.
According to the FCC, it established the reassigned number database to help “curb the tide of unwanted telephone calls,” to improve the operational efficiency and effectiveness of companies using the database, and to decrease potential liability for calls made to wrong parties due to number reassignment. Mechanically, the FCC will require telephone service providers to report the last date of permanent disconnection for their allocated and ported-in telephone numbers on a monthly basis. The FCC, though a database administrator, will then use this information to create a single, centralized database that callers can search – for a cost – to determine if a number has been reassigned. When a number is searched, the database will only return “yes,” “no,” or “no data.” These limited search results are designed to protect consumer privacy and commercially sensitive information.
Perhaps the most important aspect of the final report and order is the safe harbor from TCPA liability that the FCC created for calls to reassigned numbers. Despite the rule’s requirement for the database to be kept up-to-date, commenters to the rule still expressed concern over the possibility of facing TCPA liability for calls made to wrong parties because of inaccurate data listed in the database. Based on these concerns, the FCC included a safe harbor provision to protect businesses that reasonably rely on the database. Specifically, the safe harbor provision states:
A person will not be liable for violating the prohibitions in paragraphs (a)(1), (a)(2), or (a)(3) by making a call to a number for which the person previously had obtained prior express consent of the called party as required in paragraphs (a)(1), (a)(2), or (a)(3) but at the time of the call, the number is not assigned to the subscriber to whom it was assigned at the time such prior express consent was obtained if the person, bearing the burden of proof and persuasion, demonstrates that:
(1) The person, based upon the most recent numbering information reported to the Administrator pursuant to paragraph (1), by querying the database operated by the Administrator and receiving a response of “no”, has verified that the number has not been permanently disconnected since the date prior express consent was obtained as required in paragraphs (a)(1), (a)(2), or (a)(3); and
(2) The person’s call to the number was the result of the database erroneously returned a response of “no” to the person’s query consisting of the number for which prior express consent was obtained as required in paragraphs (a)(1), (a)(2), or (a)(3) and the date on which such prior express consent was obtained.
The safe harbor is critical. One of the most significant areas of TCPA litigation involves liability for calls to reassigned numbers – where businesses call an individual on the number he or she provided to the business, but the call reaches a new consumer who recently received a reassigned number. The FCC’s safe harbor could prove fatal for these claims, provided a caller properly searched the reassigned number database and utilized the results appropriately.
In its report, the FCC claims the safe harbor provision will incentivize use of the database as well minimize the chilling effect that threatened TCPA litigation can have on the business of good-faith callers. The FCC also rejected the notion that a more expansive safe harbor provision, such as expanding the period of time between a person’s review of the database and making of an improper call or extending the safe harbor to other commercial databases, as necessary.
We will continue to monitor developments regarding the reassigned number database and its effects on the consumer litigation landscape.