[co-author: Jacob Westlund]
FCC Chairman Ajit Pai proposed the creation of a comprehensive reassigned numbers database, addressing a significant compliance challenge under the TCPA. The TCPA’s prohibitions on the use of automatic telephone dialing systems (ATDS) allows calls to be made with the express consent of the recipient. However, as the Chairman noted in the press release announcing this proposal, millions of phone numbers are reassigned each year. Because businesses who have received prior express consent cannot rely on consumers to inform them of a reassignment, they risk violating the TCPA by placing any calls with an ATDS to those numbers after they have been reassigned.
The Chairman’s press release and proposed order recognize this challenge and outline the establishment of a database of all phone numbers that have been permanently disconnected (and that are therefore eligible for reassignment). With a single, comprehensive, and authoritative repository for this information, business callers can check the database and determine whether a recipient’s number has become eligible for reassignment. This will allow callers to know before placing an ATDS call whether the consumer who consented to receive calls still holds that phone number—and thus whether the prior express consent is still valid.
If approved by the FCC, the proposed order would establish a database based on information provided by phone companies obtaining geographic numbers from the North American Numbering Plan. Voice providers would report all permanently disconnected numbers (i.e., numbers that have thus become eligible for reassignment) on a monthly basis. The draft order would also require an aging period of 45 days before permanently disconnected numbers may be reassigned, ensuring that eligible numbers will be in the database before reassignment occurs. An independent third-party administrator would be responsible for managing the data with funding assessed from voice providers.
Although the TCPA compliance problems around reassigned numbers have existed for years, these issues took on new importance this year after the DC Circuit set aside two components of the FCC’s 2015 Declaratory Ruling and Order in ACA International v. FCC. The ACA International decision both eliminated the FCC’s one-call safe harbor for calls placed to reassigned numbers and set aside the FCC’s interpretation of “called party” to mean the current actual subscriber instead of the intended recipient, increasing the uncertainty faced by business callers. The FCC issued a notice seeking comments on this and other issues arising from the ACA International decision in April. This was followed later in the summer by a bipartisan letter from two U.S. Senators calling for the establishment of a reassigned number database, demonstrating consensus that a comprehensive solution to reassigned numbers is overdue.
While the establishment of a reassigned numbers database would certainly be a welcome development, it would not resolve all of the compliance challenges relating to reassigned numbers that resulted from ACA International. The chairman’s draft order establishing the database specifically says it would not address “how a caller’s use of this database would impact its potential liability under the TCPA for calls to reassigned numbers” but “that use of the database will be a consideration” when the FCC does address the other topics raised in the May 2018 notice.
We recently addressed these and other TCPA compliance developments on our podcast, including the FCC’s response to a number of other issues raised by the ACA International decision around what constitutes an ATDS and how a party can revoke prior express consent to receive calls.
The FCC is expected to vote on the Chairman’s database proposal at its next Open Commission Meeting on December 12.
