By: Isaac Shloss – 5/14/2024 | Navigating Compliance with Clarity and Confidence.
Stay compliant by staying informed.
Having “grown up” professionally in the call center space, I have seen far too many failed attempts by lawmakers and regulators to “increase protection” for consumers without any regard (or perhaps understanding) of how their new rules for marketing will hurt American businesses and, quite often, the very consumers they look to protect! Whether you are a state like Connecticut that requires so many disclosures within the first 10 seconds of the call that you have to greet a consumer with a litany of rapidly stated disclosures and legal jargon, or New York where an endless stream of emergency orders from Covid, to gun violence, to immigration automatically prohibit any sort of telemarketing – new regulations can hurt everyone! A lesser focus sometimes falls to those changes that do, in fact, protect everyone, and I’d like to highlight one in Maine that does just that.
ME LD 2234, HP 1433 is set to become the first bill to require marketers to scrub calling numbers against the reassigned number database (RND) before calling. This bill has passed the state’s House and Senate, and it was signed into law by the governor with limited delay. If you are calling into the state of Maine, this law WILL apply to your business.
What is the RND? In simplest terms, I see it as one of the greatest gifts to any compliant organization concerned with TCPA lawsuits. Before we dig deeper, let’s do a quick recap: if you call someone’s cell phone using certain regulated technology without prior express written consent, that caller can come after you for $500 - $1,500 per violation. It can get MUCH more expensive if you have enough violations to generate a class action lawsuit; then you could be looking at tens of millions in payments. What is regulated technology? That’s a discussion for a different time, and quite honestly, the goal posts move often (including legislation in front of the US House of Representatives today).
A cynical reader may ask, “What’s so bad about needing consent to call someone?” Honestly, I’m not going to argue that point in this blog. Rather, let’s focus on what is, hopefully, neutral ground – those who have unquestionably consented to receive these calls. Let’s say our John Doe signed up to receive calls at their phone number, which is (312) 555-1234. Life is great until Mr. Doe moves from Chicago to Phoenix, and he decides he wants to start over and get a local number. Mr. Doe still has no problem hearing from those to whom he gave consent – heck, he welcomes it – but there’s a problem. He likely has no way to remember EVERY company to whom he gave consent, and if they want to speak with him, they now need to call him at (602) 555-1234.
Consent is tied to the phone number to which the consent was given. While there is a separate discussion to be held around “who” gave the consent, are they authorized to give said consent, etc., let’s stay on topic here and focus on a clearly authorized person giving consent for a specific phone number. When that consumer gives up their phone number, the consent is immediately and automatically ended. Even if that consumer still wants your calls, he has to enter into a new consent agreement, this time with the current phone number.
When the TCPA started to tighten up rules around cellular phones and the usage of an ATDS, number cancellation became one of the biggest concerns. Businesses were prepared to adjust their strategy to ensure it included consent, but there was no mechanism for knowing when a customer’s phone number had been returned. As a result, opportunistic plaintiffs strategically attempted to acquire recently returned phone numbers, hoping they would get calls to which a prior owner of that number consented. This has made the news in many cases, such as in this Forbes article that reports on a woman who, they say, “admits she was in the ‘business’ of bringing lawsuits against companies over calls they made to her cell phones without her permission.” In that article, they detail how she kept a shoebox full of phones at the ready to aid in her “business”. At Contact Center Compliance, we used a variety of sources in an attempt to create a product that could give a caller reasonable certainty around ownership change of phone numbers, but there certainly was no authoritative source.
Late in 2018, the FCC issued a report and order that established an official, authoritative source. By April of 2020, over 100 million numbers had been added to this database, and, after a thorough beta test, the database when live a year and a half later. It is important to note that, since the data in this database does not have any guarantee of data prior to January 27, 2021, it is not a complete data set, but it’s a start! In order to scrub against the database, a caller needs to provide two data elements – a phone number and a date. The phone number is self-explanatory. For the date, the date specified would be the most recent of 1) the last date of known contact with the intended party at the specified phone number or 2) the date consent was given to call that number. Three possible results can be given from this query:
- Yes – this means that, Yes, this number has been reassigned after the date provided
- No – this means that, No, the number has NOT been reassigned since that date
- No Data – this means that there is no record of the phone number having been returned, but the date provided is prior to January 27, 2021, so there is no way to be certain that the number was not reassigned between the date provided and the “guarantee” date.
It’s also worth noting that usage of the database provides a safe harbor if a number is incorrectly reported as “No” when it should have been “Yes”. To my knowledge, this has not yet been tested in court, so I would advise caution on resting too firmly on this.
Part of this new order also required carriers to hold numbers for 45 days before they could reassign. This allows for an update to the list to occur once every 30 days, and as long as a caller scrubs each phone number at least once every 30 days, it should be impossible to accidentally call the wrong party.
The benefits of this are not hard to identify. Not only do you avoid calling someone you did not intend to call (saving time, money, labor, etc.), but you also avoid potential litigators waiting (hoping) for your call. This can extend further to protecting brand integrity. You do not create negative feedback from the consumer market for disturbing the wrong party, and you can also avoid potential “honeypots.” Honeypots, if you are unfamiliar, are traps designed to catch bad actors in the calling space. Carriers are now commonly parking “idle” or unassigned numbers in honeypot systems designed to catch those calling without consent. Remember, since you lose your consent when a number is reassigned, future calls to those numbers are, technically, unconsented calls.
Every enterprise caller should have been scrubbing for disconnected/reassigned numbers long before the creation of the RND. Even without a legal requirement, it’s just smart! Now that Maine is requiring this usage, their Energy, Utilities, and Technology Committee have even forecasted that the passage of this bill may increase the number of civil suits filed in the court system. I think that “may” should be a “will”, but only time will tell.
When will this take effect? According to Maine’s Constitution, “an act or resolve enacted into law takes effect 90 days after the adjournment of the session in which it passed.” With the current session currently scheduled to end May 10th, 2024, that would make this effective on or around August 10th of the same year. With the governor’s ink now dried on this bill, the clock is ticking on ensuring your compliance.
Contact Center Compliance is an authorized agent of the RND, and we can streamline your scrubbing independent of or along with all other scrubbing needs. Companied with our proprietary Reassigned Number Plus product, we can provide insight well before the date carriers were originally required to report into that database. We can also layer our litigator scrub product on top of this, providing you extra protection against anyone who may have a shoebox of phones at their disposal.
Rewatch the dive deep with the authors of the bill in our webinar!
Gain valuable insights directly from Michael Johnson and Jason Marco of the Maine Public Utilities Commission (PUC). We'll explore the motivations behind the bill's creation, the PUC's goals, and potential future legislative changes in telemarketing regulations.
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