Signaling action on a notice of proposed rulemaking that was initially released in June 2017, the Federal Communication Commission released a proposed order on November 21, 2018, that, if adopted by the Commission at its December 12, 2018 open meeting, would establish “a single, comprehensive database of reassigned numbers based on information provided by phone companies that obtain North American Numbering Plan U.S. geographic numbers.”
Noting that “concern about calling reassigned numbers has caused some callers to stop making calls” and that calls to reassigned numbers “subject [callers] to potential liability for alleged violations of the Telephone Consumer Protection Act,” the FCC’s order proposes several rules that will help callers avoid calls to non-consenting consumers and better protect callers from TCPA liability. Importantly, the proposed order would do all of the following:
- Establish a single, comprehensive reassigned numbers database that will enable callers to verify whether a telephone number has been permanently disconnected, and is therefore eligible for reassignment, before calling that number.
- Require a minimum aging period of 45 days before permanently disconnected telephone numbers can be reassigned to a new consumer.
- Require all voice providers that receive North American Numbering Plan numbers and the Toll Free Numbering Administrator to report on a monthly basis information regarding permanently disconnected numbers to the database.
- Select an independent third-party reassigned numbers database administrator through a competitive bidding process (which will occur sometime “in the next twelve months”).
- Authorize the third-party database administrator to establish the database by collecting start-up costs from providers using the same type of mechanism as other numbering administration costs.
- Authorize the third-party database administrator the fund operating costs through database usage charges; and to recoup start-up costs and return them to providers through offsets to future number administration charges.
- Take steps to ensure that the data contained in the database are used appropriately and accessible to all users who certify they are using the database for a lawful purpose.
- Direct the North American Numbering Council to make recommendations on technical and operational issues affecting the database, including usage fees.
In sum, then, the FCC’s order, if adopted, would allow mobile marketers to access the database for a yet-to-be-determined monthly fee, where after a mobile marketer could enter any phone number on their contact list and the date the marketer last contacted the number. In response, the database would provide the marketer with a “yes” or “no” response as to whether that number has been reassigned since the date entered. Under the FCC’s order, all carriers would be required to report number reassignments on a monthly basis, meaning a marketer’s use of the database could go a long way towards helping that marketer substantially reduce the number of reassigned numbers it contacts.
Unfortunately, however, the FCC’s order does not address how a caller’s use of the database would impact its potential liability under the TCPA for calls to reassigned numbers. As the Commission noted in the proposed order, it would forego deciding this issue until a later date:
We decline to … address in this Report and Order how a caller’s use of this database would impact its potential liability under the TCPA for calls to reassigned numbers. The D.C. Circuit favorably noted the Commission’s efforts to address reassigned numbers in deciding ACA International, and we believe that establishing the database will satisfy our goal of minimizing unwanted calls to reassigned numbers regardless of how we resolve these other questions. We anticipate that use of the database will be a consideration when we address the reassigned numbers issues raised in that decision
The issue of reassigned numbers has been a hot button topic for mobile marketers since 2015, when the FCC decided to impose liability on companies sending autodialed calls or test messages to a number that had been reassigned to a new user. That part of the FCC’s 2015 decision was unanimously reversed by the D.C. Circuit Court of Appeals in March 2018, whereby it concluded that the FCC’s actions were not reasonable. Thus, for months now, the issue of how reassigned numbers would be treated for purposes of the TCPA was left very much up in the air. And while the FCC’s order declined to address whether callers who use the reassigned numbers database will receive protections in the event a reassigned number is still reached, it is good to see the FCC finally acting on this highly important issue.