On January 28, 2019, a consortium of consumer advocates led by the National Consumer Law Center filed a letter with the FCC urging the Commission to adopt certain standards for liability for calls placed to reassigned numbers, both before and after the implementation of the FCC’s reassigned number database. In brief, the letter proposes a standard that places a detailed obligation on the calling party to demonstrate reasonable reliance that they had consent for the call.

The consumer advocates first propose that the FCC keep its 2015 definition of the “called party” as the current subscriber to the phone (not the intended recipient). Second, for the time period before the reassigned number database is functional, they propose the following standard to absolve a caller from liability when the call reaches a different subscriber by mistake:

  1. The caller can demonstrate actual consent from the previous subscriber, and
  2. The caller stopped immediately after the person reached said to stop, and
  3. The caller can demonstrate either
    1. that it consulted a commercial database prior to calling the number; or
    2. it employed an easy-to-use and publicized method for the called party to request that calls stop; or
    3. it employed a regularly scheduled check of the validity of numbers and purged numbers that were invalid or “have not been verified after a certain period.”

This standard would apply to calls made over the next year or so, as well as past calls made to reassigned numbers. Once the reassigned number database is operational, the FCC-adopted safe harbor would become the standard, although the consumer advocates urge the FCC to “make clear that, in order to avoid liability, the caller must also prove that it had consent from the party it intended to call.”

Finally, the consumer advocates ask the FCC to consider mandating an automated, interactive opt-out system for all prerecorded calls and for texts.

The FCC has not responded to this request, but there is speculation that the Commission will take further action related to the TCPA and robocalls in the near future.