In early March, the Federal Communications Commission (“FCC”) issued a notice indicating that it is proposing to address the issue of Telephone Consumer Protection Act (“TCPA”) liability for dialing reassigned numbers, and seeks comment about how to go about same.
What are the FCC’s proposed solutions and how might they impact telemarketers?
The FCC is working on the framework for the creation of a database of reassigned numbers that would be accessible to telemarketers. The purpose of the proposed database would be to allow telemarketers to query the database in order to determine whether telephone numbers associated with otherwise TCPA-compliant leads had been disconnected and were in the process of being (or had been) reassigned to a different consumer that had not provided consent.
As part of establishing such a prospective database, the FCC is seeking comment from interested parties, including marketers and affected telecommunications service providers, on various aspects of how the database should be created, serviced, and accessed. For example, the FCC is considering whether the database should be managed by the FCC itself or by commercial aggregators, and whether it should be comprised of one or multiple databases. The FCC has also requested comment on additional database considerations, including: (i) how often it should be updated; (ii) access fees; and (iii) what type of information should be included in it (i.e. only wireless numbers vs. telephone numbers associated with any type of service).
Likely most pertinent to those operating in the telemarketing space is the FCC’s exploration of how using a reassigned number database might implicate TCPA compliance. Specifically, the FCC is seeking comment on whether it has the authority to adopt, and whether establishment of a reassigned number database would provide for, a safe harbor vehicle for telemarketers. To the extent that it proceeds with establishing a reassigned number database-related safe harbor, the FCC also wants to address what the scope of the safe harbor would look like. Among other issues associated with the breadth of a prospective safe harbor, the FCC is already grappling with whether it would apply to exempt from liability all calls to reassigned numbers or only calls inadvertently placed after checking a comprehensive reassigned number database.
The Implications of a Reassigned Numbers Database Safe Harbor
Under the right circumstances, the FCC could provide significant legal cover to telemarketers that can demonstrate that they subscribe to, and regularly scrub against, a prospective reassigned number database in the event that a TCPA claim is brought by a subscriber to a reassigned number. The parameters of any such legal exemption remain to be seen given that the FCC has only just began a months’ long process of crafting and enacting a possible safe harbor. In the interim, it is critical to work closely with experience counsel to ensure telemarketing compliance in this rapidly-evolving regulatory climate.