What should the Federal Communications Commission (FCC) do about reassigned numbers in the Telephone Consumer Protection Act (TCPA) context? Everyone wants to know, but there are no clear answers yet.

As we previously reported, the FCC published a Notice of Inquiry (NOI) in July 2017 asking for feedback on how to handle reassigned numbers. In response, various commenters generally supported the plan to establish a central database of reassigned numbers but offered no real solutions.

Now the FCC wants help fleshing out the details. On March 1, 2018, the agency released a draft Second Further Notice of Proposed Rulemaking (FNPRM) seeking additional input and comment on how to address the problems that arise when a consumer disconnects her phone and fails to inform callers, the number is reassigned to a new individual, and that person receives unwanted calls intended for the previous caller. More specifically, the FNPRM wondered about the type of information callers would need to submit to a reassigned numbers database in order to generate a search, the type of information callers would need from the database, and how the FCC should define when a number is considered “reassigned,” proposing that it be the point at which a number is disconnected.

Perhaps one of the most significant questions posed by the FNPRM is whether any information should be excluded from the reassigned number database. The FCC requested commenters weigh in on privacy concerns as well as on whether data should be collected from all types of service providers, including wireless, wireline, interconnected VoIP and non-interconnected VoIP providers.

The agency also sought input on how frequently data should be reported. Some commenters on the prior NOI argued that data should be reported on a daily basis, while others took the position that the database should be updated in real time or as close as practicable to real time.

Feedback on the format of the database and user access would also be helpful, the FCC said, such as specific criteria or requirements that an entity must satisfy to become an eligible user. “We also seek to mitigate any risk that the data could be used by fraudulent robocallers or other bad actors for spoofing or other purposes,” according to the FNPRM. “At the same time, we seek to minimize the administrative and cost burden on callers so as not to discourage their use of a reassigned numbers database.”

The FCC asked for comment on how the reassigned numbers database should intersect with TCPA compliance—specifically, whether the agency should adopt a safe harbor from liability for those callers who choose to use the database. If the FCC elected to establish a safe harbor, what would it protect a caller from? Would it protect from liability for all calls to reassigned numbers, calls made in good faith to reassigned numbers, or only calls made due to the database’s information being either untimely or inaccurate?

Also up for comment was the best approach for database administration. The FCC proffered three alternatives: requiring service providers to report reassigned number information to a single, FCC-designated database; mandating that service providers report information to one or more commercial data aggregators; or allowing service providers to report the information to commercial data aggregators on a voluntary basis.

Subsumed within this inquiry were questions of cost (how an FCC-designated reassigned numbers database should be funded), the scope of coverage for service providers (whether all types of providers should be required to make reports) and details on the information shared (what types of data would need to be submitted and how frequently).

To read the FCC’s FNPRM, click here.

Why it matters: The FCC released the draft FNPRM in early March, with plans to discuss it at the end of the month. If approved, the notice will be published in the Federal Register with a 45-day comment period for interested parties, followed by 30 days to submit reply comments. These comment periods offer stakeholders the chance to weigh in on the mechanics of the proposed reassigned numbers database. What remains to be seen is how the database will affect TCPA liability—i.e., whether it will help or worsen exposure. Notably, the D.C. Circuit just recently set aside the FCC’s prior rulings on reassigned numbers, which we discussed separately and in more detail here.