The Telephone Consumer Protection Act (TCPA) poses a constant threat to companies that wish to communicate with existing and prospective customers because the statute imposes strict liability on companies that call or text the wrong number. In light of the statutory damages available under the TCPA, class action settlements and judgments have required companies to pay millions even where there is no intent by the calling parties and no tangible harm to the called parties. Fortunately, the Federal Communications Commission (FCC) has created a database that could reduce the number of inadvertent TCPA violations and hopefully shield responsible companies from violating the law by performing increased due diligence.
On November 1, 2021, the FCC announced the launch of the Reassigned Numbers Database (RND). The RND is a centralized database designed to track reassigned cell numbers and prevent consumers from receiving unwanted calls intended for the previous subscriber of a cell number. Callers may use the database to determine whether a telephone number to be called for telemarketing purposes has been reassigned, and thus they can avoid placing calls to the current owner of the cell number who has not consented or has placed his or her cell number on the Do-Not-Call Registry.
To be shielded from TCPA liability for calls or texts to reassigned numbers under the accompanying safe harbor, a caller will need to show that it: (1) had consent from the intended recipient of that communication; (2) queried the up-to-date database before calling or texting the number; and (3) did not receive a report from the database that the number was permanently disconnected after the date of consent.1
Essentially, the FCC is offering an insurance policy to all companies that take advantage of the RND. By searching the RND before calling any number and otherwise complying with the FCC’s rules outlined above, an entity is shielded from liability under the TCPA. This shield applies even if the individual who receives the call isn’t the intended recipient and hasn’t consented to telemarketing calls, and even if the individual called has placed their number on the National Do-Not-Call Registry. The safe harbor provision of the RND absorbs and shields companies who register for the RND from any liability stemming from the RND being incorrect or incomplete.
On the other hand, a company that does not search the RND before making a telemarketing call is subject to any potential resulting liability under the TCPA even if the individual’s number is not in the RND. Whether a query of the RND would have proved effective is irrelevant to the safe harbor. A simple search of the RND protects companies from suit, regardless if that search would ultimately have spared the called individual.
Given the blanket protection of the RND’s safe harbor, and the blanket liability of a failure to make use of the RND, companies engaged in telemarketing would be wise to take advantage of the new database. The RND represents an important development for businesses across industries that are engaged, whether directly or through third-party vendors, in calling and/or text messaging activities. If used properly, the RND can help companies ensure they are reaching the intended recipients of their communications. While it is not mandatory to use the RND, businesses would be well-advised to consider registering or requiring their third-party vendors to do so.
1RND Launch; Consumer and Governmental Affairs Bureau Announces Interim Usage Charges for the Reassigned Numbers Database, CG Docket No. 17-59, DA 21-1240, 86 Fed. Reg. 61,077 (Nov. 5, 2021).