Finally, A (Sort Of) Real Solution to Avoid TCPA Liability for Reassigned Numbers—Businesses that Make Calls or Send Texts Should Pay Attention

by: Brian Schaller

The problem – millions of phone numbers are reassigned each year and businesses have had no ironclad way to know whether a number had been reassigned.  These businesses can be subject to Telephone Consumer Protection Act (TCPA) liability for inadvertent calls/texts to such reassigned numbers because the person receiving the call/text is no longer the person who originally consented to the call/text message. 

The solution – The Federal Communications Commission (FCC) will "establish a single, comprehensive database with information provided by phone companies that callers will be able to use to avoid calling reassigned numbers."[1] By checking the reassigned phone numbers database (the "Database"), callers will be able to find out whether numbers have been disconnected and purge such numbers from their lists. Last week, the FCC adopted its Second Report and Order[2] and released the associated press release and commissioner's statements on the subject.

To fully understand the problem and its history, know that the plaintiffs bar has been very aggressive with TCPA lawsuits over the last few years (with attractive statutory damages of $500 per call/text—up to $1,500 for willful/knowing) and defendants have very little protection from liability for calls inadvertently made to reassigned numbers. In 2015, the FCC's TCPA Omnibus Declaratory Ruling and Order allowed for a one call/text exception to discover whether a number has been reassigned, which was really not a solution at all (given that it did not require the new subscriber to respond that the number has been reassigned or opt out). In March, the D.C. Circuit Court vacated this one call/text exception as arbitrary and capricious, at least as set out in the Order[3] (see InfoLawGroup's blog post). 

The Second Report and Order creates a safe harbor from TCPA liability for calls made to reassigned numbers caused by database error.  However, the contours and requirements of the safe harbor may be tricky for some to follow. For example, it is only available due to Database error (returning an inaccurate result)[4]. The Database only reports the permanent disconnection of numbers (not the names of the people associated with the numbers-due to privacy concerns); and the phone companies will report the numbers each month, so callers will need to check the list at least monthly. In addition, callers must keep close track of call dates. The Second Report and Order requires that the caller send the Database "either the date they contacted that consumer or the date on which the caller could be confident that the consumer could still be reached at that number."[5] The FCC made sure that the "burden of proof and persuasion"[6] is on the caller, so callers will need to ensure that all of the steps are followed and records are kept in order to avail themselves of this safe harbor.

It should be understood that, currently, it is possible for businesses to use commercial databases of reassigned numbers to avoid inadvertently calling/texting the wrong person, but these commercial databases are incomplete because service providers that assign numbers are not required to report that a number has been permanently disconnected. Under the Second Report and Order, those providers are now required to report.  However, the FCC decided not to extend the safe harbor to these commercial databases stating that "such databases collect different information over a less-than-comprehensive set of consumers."[7] Thus, we may see some callers choose to stop using these databases and switch to the one set up by the FCC.

So, when will businesses be able to use this FCC created Database and related safe harbor?  This remains unclear, as the Second Report and Order states that a solicitation for the third-party Database administrator will happen within the next 12 months and Commissioner Jessica Rosenworcel in her Statement noted that the database "won’t be up and running anytime soon."[8] In the interim, we recommend that businesses that make calls/send texts keep a close eye on these developments, and reevaluate their record keeping processes and systems.

[1] FCC Establishes Reassigned Phone Numbers Database To Help Reduce Unwanted Calls To

 Consumers, 2018 WL 6589796, at *1 (OHMSV Dec. 12, 2018) (https://docs.fcc.gov/public/attachments/DOC-355526A1.pdf)

[2] In the Matter of Advanced Methods to Target & Eliminate Unlawful Robocalls, CG17-59, 2018 WL 6590244 (OHMSV Dec. 13, 2018) (https://docs.fcc.gov/public/attachments/FCC-18-177A1.pdf)

[3] ACA International v. Federal Communications Commission, 885 F.3d 687, 703 (D.C. Cir. 2018)

[4] In the Matter of Advanced Methods to Target & Eliminate Unlawful Robocalls, at Paragraph 55

[5] Id. at Paragraph 18, Paragraph 55, and Paragraph 36 of Appendix C Final Regulatory Flexibility Analysis

[6] Id. at Paragraph 55, Appendix A Final Rules, and Paragraph 36 of Appendix C Final Regulatory Flexibility Analysis

[7] Id. at Paragraph 57

[8] Id. at Page 51