Editor's Note 10/26/2021
The One Call Safe Harbor is no longer in effect and the FCC's long anticipated Reassigned Number Database will be implemented next week. While the advice below was relevant at the time it was published, it no longer reflects the current compliance environment.
As each year passes, the problem of reassigned numbers has only worsened for debt collectors and contributed to the growing number of TCPA (Telephone Consumer Protection Act) lawsuits that overload the courts. At issue is use of the autodialer. For the debt collection industry, the autodialer is an integral piece of equipment that allows them to call debtors multiple times over a period of time. It has proven to be cost effective and much more efficient than manual dialing.
65.8% of U.S. households are only reachable on their cell phones
which leads to fines and costly class actions. With no guaranteed way of knowing if the debtor being called is still using the phone number they have on record, it’s only a matter of time before an unintended recipient files a lawsuit. Are you next?
Why Debt Collectors Are More At Risk for TCPA Lawsuits
Under the TCPA, debt collectors are permitted to dial wireless numbers provided the owner of the number has given their expressed prior consent. Consent for calls to wireless numbers normally happens at the time the customers completes a form for the extension of credit.
The problem for debt collectors begins when the customer terminates service to their wireless phone by cancelling their existing number and getting assigned a new one by their wireless carrier. Typically, consumers do not inform business of their new number. This is especially true for consumers who are hiding from their financial obligations. It is common practice for debtors to change their wireless phone numbers often in order to avoid collections calls.
35 million numbers are disconnected and aged annually
When the collections company initiates the call, they are unaware that the contact no longer owns the number or that it has been reassigned to a different person. Since the call is likely to have been made using an autodialer, the company could find itself the target of a TCPA lawsuit because the new party receiving the call had not provided their consent. From the recipient’s perspective, they are being harassed for someone else’s debt.
How The FCC Responded To The Reassigned Numbers Dilemma
The FCC created the “One Call Exemption” as a safe harbor. This exemption permits telemarketers to make one single phone call to a reassigned number without triggering liability under the TCPA. The problem for telemarketers is that “one all” means “one call”. It doesn’t matter whether the phone call was answered or not, or that the business received any confirmation that the number has been reassigned.
The FCC did recognize the problems that resulted from the exemption. Their response was to offer additional guidance which seemed to ignore the realities of managing a business. To that end, the FCC provided debt collectors with the following additional compliance suggestions:
- Check voicemail to confirm caller’s identity.
- Use emails to confirm customer numbers.
- Manually dial calls to avoid liability.
- Include indemnity clauses in consumer contracts that make them liable for damages from failure to inform them of phone number changes.
As expected, the FCC’s suggestions place all the responsibilities on the debt collectors to obtain accurate contact information. As a business owner, their suggestions drive up costs and reduce efficiencies. They also don’t contribute any real solution to the problem.
Consider the impractical idea of including an indemnity clause in consumer contracts. Does the FCC believe that retailers want a gain a reputation for suing their customers? Additionally, if the consumer cannot pay their current debts, how likely is it that the debt collector will be able to recover damages too?
“This exemption does not require consumers to accurately inform the caller that the number has been reassigned; ignores the worthlessness of uninformative voicemails; and even counts call attempts or informational texts where there was no response at all against the one call policy. Moreover, accidental misdials receive no protection whatsoever." -- FCC Commissioner Michael O’Reilly
For debt collectors and telemarketers in general, there is no safe harbor. It would seem that the only real safe harbor is to manually dial each phone number which is not a practical solution for a telemarketer’s business model. Objectively, it is hard to tell if this FCC’s exemption was created to help businesses manage regulatory compliance or make it easier for consumers to file TCPA lawsuits.
The Real Solution: A Standardized Database of Reassigned Numbers
What the telemarketing industry needs is a standardized database solution accessible by telemarketers to scrub reassigned numbers from their calling files. The best option is to create a process similar to that used for the DNC (Do Not Call) Registry that allows authorized businesses and call centers to remove numbers by matching them to a centralized list or reassigned numbers. Under this process, voice service providers would provide the FCC database with updated data on reassigned numbers.
100,000 wireless numbers are reassigned daily
The consumer benefit is that the process could provide a more immediate end to annoying calls to the wrong party. Call Centers would benefit from a clearer safe harbor for TCPA compliance and reduction in potential lawsuits. Under such a process there would only be winners.
Conclusion
Without a centralized list of reassigned wireless numbers, the continued growth of TCPA lawsuits is inevitable. It is obvious that an FCC administrated database, where voice service providers report reassigned numbers, would be the simplest solution.
Most businesses want to comply with the TCPA. Creating one centralized source for scrubbing reassigned numbers would provide a simplified process for business to remain compliant with TCPA regulation. If the FCC were to gather and manage a database of reassigned numbers similar to the DNC Registry it would go a long way towards reducing litigation and unintended calls to the wrong party.
