Noting that some 35 million telephone numbers are disconnected and made available for reassignment to consumers annually, the Federal Communications Commission (“FCC”) took a further step last Thursday to address the “problem of unwanted calls to reassigned numbers.” The problem with these calls already is well known to businesses that rely on phone calls or text messages to communicate with their customers: a caller places a call or sends a text to a number for which it has previously obtained the necessary consent, only to find out later that the number has since been reassigned to someone else (who has not provided consent). The FCC declared in the Declaratory Ruling and Order of July 2015 (“2015 Declaratory Ruling”) that these calls may violate the TCPA, although it also created a limited safe harbor for a single call or message made post-reassignment

In what appears to be a significant step to address this problem, the FCC issued a Second Further Notice of Proposed Rulemaking (“Second FNPRM”) on March 23, 2018, proposing to establish “one or more” reassigned-number databases” that can be consulted by callers. This order came just two days after the U.S. Court of Appeals for the D.C. Circuit vacated the FCC’s “treatment of reassigned numbers as a whole,” which had been set forth in the 2015 Declaratory Ruling. Indeed, the D.C. Circuit commented favorably on the database proposal, which the FCC originally had released for public scrutiny in early March and had earned the endorsement of key U.S. Senators. The FCC’s latest action is the outgrowth of a Notice of Inquiry (NOI) that was issued on July 13, 2017, and focused on means “to verify whether a number has been reassigned prior to initiating the call.”

More significantly, the agency coupled the database proposal with a request for comment on establishing a new “safe harbor” from TCPA liability for those callers that choose to use such a database. This request is not surprising, since the D.C. Circuit set aside the one-call safe harbor for calls to reassigned numbers, which the court found to be arbitrary and capricious. The D.C. Circuit’s decision also prompted examination of whether use of current commercially available databases, with improvements, could provide such protection.

Reassigned Number Database: Three Potential Models

The FCC’s goal is to ensure that the database “will provide callers with the comprehensive and timely information they need to avoid calling reassigned numbers.” The Second FNPRM’s overarching questions about the nature of the database focused on: (a) the type of information needed by callers (e.g., when numbers are disconnected?); (b) the required comprehensiveness of database information (e.g., all types of voice service providers?); (c) how timely the information must be (e.g., real-time or close to real-time as practicable?); (c) the format of the information (e.g., what do callers need?); (d) who should have access to the database (e.g., available to non-callers?); and (e) the cost of the database (e.g., how to minimize costs to encourage use?).

Within that framework, FCC put forth three different database models:

  1. Mandatory reporting to a single database overseen by the FCC but administered by a third party;
  2. Mandatory reporting to one or more eligible commercial data aggregators; or
  3. Voluntary reporting to commercial data aggregators.

The FCC is seeking input on a more refined set of issues for each model, including, for example, what service providers should be covered (e.g., should reporting requirements apply to text messaging providers even if they do not provide voice service?) and recovery of service provider costs.

According to the Second NPRM, responses to the NOI favored a single, FCC designated database, while others favored making the data available through commercial aggregators. But the D.C. Circuit’s decision led the FCC now to ask whether “existing, commercially available databases provide callers with sufficient resources, diminishing the need for a new database or a mandatory reporting requirement” and whether reliance on such existing databases supports “reasonable reliance” on the original consent received.

Potential Safe Harbor From TCPA Liability

This last question is relevant to the question of “whether the Commission should adopt a safe harbor from TCPA liability for those callers that choose to use a reassigned number database,” including any of the three models. To that end the FCC seeks input on its legal authority, the scope of protection, and the circumstances under which callers could avail themselves of the afforded protection.

Commenters on the NOI have urged the FCC to adopt a “safe harbor” for callers using existing commercial databases. Commissioner O’Rielly described this approach, including voluntary reporting, as “the most sensible option at this point.” The Court’s decision has at least raised the visibility of that prospect in the FCC’s eyes; the agency is asking whether reassigned number solutions that are currently available are “comprehensive and timely” and, if not, what efforts it could undertake to “incentivize improvement of these solutions.”

Providing a “safe harbor” based on existing, perhaps enhanced, commercial options could bring the reality of such a shield from liability much sooner than developing a new-FCC administered database. Even if the Commission ultimately decides on that option, it should be urged to consider in the interim providing a “safe harbor” for callers who in fact use the most comprehensive of commercially available options.

What Is Next And What To Do Now?

The Second FNPRM establishes a 75-day comment period that starts upon publication in the Federal Register. That publication may take one or two weeks. Although all of the Commissioners, based on their statements, supported developing the database, final FCC action on this initiative is some time away. In the meantime, the FCC’s reassigned number rules revert to where they were before the D.C. Circuit’s decision, with no “safe harbor.” In light of the Court’s commentary and the Second FNPRM, a sensible, protective approach would be to sign up for an existing commercial product—an investment that would demonstrate a good faith intent to avoid calling someone who never provided the requisite consent.