What happens when a company with prior express consent to call a consumer’s mobile phone contacts that number only to find that it now belongs to someone else?

The Federal Communications Commission is seeking public comment on the issue after United Healthcare Services, Inc., filed a petition on January 16 requesting clarification about potential liability under the Telephone Consumer Protection Act.

The TCPA and FCC rules require that businesses obtain prior express consent to place autodialed or prerecorded calls to wireless numbers. United told the FCC that it obtains such consent from individuals before making healthcare-related information calls using an automatic telephone dialing system (ATDS) or prerecorded voice. But according to United’s petition, sometimes the wireless telephone numbers for which it obtains prior express consent are reassigned from one subscriber to another and organizations cannot always know whether a given number has changed hands.

“United, therefore, asks the Commission to clarify that parties are not liable under the TCPA for ‘informational, non-telemarketing calls, especially healthcare-related calls, to telephone numbers that have been reassigned without the caller’s knowledge—as long as the caller previously obtained ‘prior express consent’ to place calls to that specific telephone number,” according to the FCC’s notice and request for comment.

Comments were due March 10, and a variety of companies and consumer groups did weigh in on this issue. It is not certain when the FCC will issue a declaratory ruling, or even whether the FCC may decide instead to take on various TCPA concerns through a rulemaking, as other petitioners have requested.

To read the FCC’s request for comment, click here

Why it matters: United’s FCC petition presents the not uncommon situation where a cellphone user changes his or her number. Should a company be liable under the TCPA for contacting the number, not knowing a different user is at the other end? Companies are hoping the FCC will answer “no.”