On July 10, 2015, the Federal Communications Commission issued a 138-page Declaratory Ruling and Order approving nearly two dozen proposals to the rules and regulations implementing the Telephone Consumer Protection Act (TCPA), including several controversial revisions. Opponents of the new rules believe they will expand, rather than rein in, the increasing number of lawsuits filed under the Act. Between 2008 and 2014, the number of TCPA lawsuits jumped from 14 to 1,908. Many believe that implementation of the newly-adopted FCC rules will cause that number to escalate significantly.
The new rules include a number of technical changes, but the change that may be the most detrimental to businesses is the imposition of strict liability on companies that call or text a mobile number that has been reassigned. Under the new rules, businesses are "liable for robocalls to reassigned wireless numbers when the current subscriber to or customary user of the number has not consented." It is estimated that 37 million cell numbers are reassigned every year, and marketplace solutions for confirming such reassignments are virtually non-existent.
The only exception to the new rule is that businesses "who make calls without knowledge of reassignment and with a reasonable basis to believe that they have valid consent to make the call should be able to initiate one call after reassignment." This electronic "one free bite" rule applies regardless of whether the new owner of the mobile number notifies the business of the error or requests that the calls or messages stop.
Although the FCC claimed that there are solutions in the marketplace to confirm reassigned numbers, it did not identify any methods for doing so and acknowledged that the "marketplace solutions for identifying reassigned numbers are not perfect." Indeed, no database exists that tracks reassigned numbers and certainly not one that is updated daily. In short, there is no way for businesses to confirm whether a cell number enrolled in their marketing program has since been reassigned.
A recent case filed against Rubio's Coastal Grill, a San Diego based Mexican restaurant chain, illustrates the difficult positions businesses are put in regarding reassigned cell numbers. The company obtained consent to send text messages to members of its Quality Assistance team advising them of food and safety issues. When one member of the team lost his phone, his wireless carrier reassigned his number to someone else. Unaware of the reassignment, Rubio's kept sending text messages to what it believed was its employee's number. The new subscriber never advised the restaurant that he was not one of its employees, never asked Rubio's to stop texting him and waited until he had received nearly 900 text messages before filing a TCPA lawsuit seeking $500,000 in damages.
