This is the first notice since the ACA International v. Federal Communications Commission ruling which limited the authority of the FCC on issues related to enforcement of the Telephone Consumer Protection Act (TCPA). As a result of the ruling the commission is seeking industry input on the creation of a reassigned numbers database to help businesses and consumers avoid unwanted calls and text messages.

Background on Reassigned Numbers

In the court’s March ruling, the D.C. Circuit Court found the “one free call” safe harbor, created by the FCC, to be arbitrary. The FCC had failed to give a reasonable explanation of how only one call could provide the caller with knowledge of the number’s reassignment. The ruling in effect, set aside the FCC’s entire treatment of reassigned numbers.

Still, reassigned numbers continue to be a growing problem for consumers and businesses. Approximately 35 million numbers are disconnected and made available for reassignment to new consumers each year. Such a high frequency of reassignment sets the stage for the obvious problems that have triggered litigation against telemarketers.

When consumers get a new phone number, they typically do not update businesses, including those that may have provided “prior express consent”. This leads to the new owner of the phone number receiving unwanted calls intended for the previous owner. Businesses making the calls are then unexpectedly exposed to potential liability for a TCPA violation.

The Notice of Proposed Rulemaking:

The FCC is seeking comment on whether it has the authority establish a reassigned number database that would provide safe harbor for telemarketers. At issue is how the database should be created, serviced, and accessed.

The FCC’s NPRM seeks comments on the following:

• Database Requirements. Proposes to ensure that one or more databases are available to provide callers with the comprehensive and timely information they need to avoid calling reassigned numbers. The FCC seeks comment on the specific information callers need to be included in the reassigned numbers databases.
• Reporting Requirements. Seeks feedback on three alternative ideas for how service providers can report reassignment information:
  1.    Requiring service providers to report reassigned number information to a single, FCC-designated database.
  2.    Requiring service providers to report that information to one or more commercial data aggregators.
  3.    Allowing service providers to report that information to commercial data aggregators on a voluntary basis.
• Safe Harbor. Seeks comment on whether and, if so, how the Commission should adopt a safe harbor from liability under the TCPA for those callers that choose to use a reassigned numbers database.

Comments are due on June 7, 2018. A reply is expected by July 9, 2018. The full document for the NPRM Addressing Robocalls to Reassigned Phone Numbers is available.

Having a reassigned phone numbers data base is a good idea for callers and consumers. The FCC in this instance could provide significant legal protection to telemarketers that scrub against the proposed database and thereby remove one potential pitfall leading to litigation for a TCPA violation. As telemarketers, there is no bigger challenge than remaining TCPA and DNC compliant.