CBRS: The Path Ahead

The Citizens Broadband Radio Service (CBRS) was originally envisioned as a true people’s broadband radio service – one that would be either free or highly affordable for small, locally-based operations of limited breadth and duration. The paradigm was a conscious break from the Metropolitan Statistical Area – or- larger sized service areas with 10-year renewable terms that have dominated regulatory thinking for the last few decades, effectively limiting the licensees of most new spectrum to billion-dollar companies with plenty of cash to acquire licenses. Those companies have pushed strongly to rearrange at least some portion of the CBRS band into the standard Big Company-favoring model.

There appears to be the strong sentiment on the FCC’s eighth floor for a movement in that direction, so the service has been treading water while the FCC considers whether to increase the size, term, and length of licensed Priority Access Licensees (PAL) operations in the 3550-3700 MHz band. I expect FCC action in the relatively near future since the pace of ex parte contacts has accelerated in the last month. While much remains up in the air as I type, current and potential General Authorized Access (GAA) Citizens Band Radio Service users can nevertheless be thinking ahead about how and whether they can sustain uninterrupted operations under the new CBRS licensing and usage program already adopted by the FCC.

Current system. Under the rules that have governed the use of the 3650-3700 MHz band for the last ten years or so, all users were nationally licensed on a non-exclusive basis. While users were required to cooperate with other licensed users with registered sites and make every effort to avoid interfering with other users, no one is guaranteed interference-free operation. Since usage of this band has not been heavy, it has usually been possible for multiple non-exclusive users to avoid interfering with each other in the same geographic areas. The new regulatory paradigm makes things more complicated.

CBRS. Under the CBRS plan, there will be:

  • Incumbent Users: generally federal government users near the coasts and around certain government facilities, but also Grandfathered Users for a period of time;
  • Priority Access Licensees (PAL): people who acquire priority usage rights through an FCC auction;
  • GAA users: those users who are the equivalent of unlicensed users since they have few rights vis a vis other categories of users or each other.

Federal incumbents will always have the highest priority to use the spectrum and may bump all other users if they need access. Grandfathered incumbents – existing licensees who registered their transmitter sites as of April 16, 2016 and who have kept those stations operational since then – have priority over other PAL and GAA licensees for the duration of their grandfathered term, which will not exceed five years from 2015.*

PAL users have a higher priority than GAA users, have first access to available spectrum, and can bump GAA users if they need spectrum to accommodate what they bought in the auction and no other spectrum is available.

Finally, GAA users register in the system and are assigned spectrum on an “as available” basis. The SAS entity which assigns spectrum to competing users according to the prioritization scheme established by the FCC will try to accommodate all users so they can operate without interference, but no GAA user is entitled by right to interference protection from other users. Here is the FCC rule:

96.35 – General Authorized Access Use

(a) General Authorized Access Users shall be permitted to use frequencies assigned to PALs when such frequencies are not in use, as determined by the SAS.

(b) Frequencies that are available for General Authorized Access Use shall be made available on a shared basis.

(c) General Authorized Access Users shall have no expectation of interference protection from other General Authorized Access Users operating in accordance with this part.

(d) General Authorized Access Users must not cause harmful interference to and must accept interference from Priority Access Licensees and Incumbent Users in accordance with this part.

(e) General Authorized Access Users operating Category B CBSDs [higher powered stations] must make every effort to cooperate in the selection and use of available frequencies provided by an SAS (the System Administrator) to minimize the potential for interference and make the most effective use of the authorized facilities.  Such users shall coordinate with an SAS before seeking station authorization, and make every effort to ensure that their CBSDs operate at a location, and with technical  parameters, that will minimize the potential to cause and receive interference among CBSDs. Operators of CBSDs suffering from or causing harmful interference are expected to cooperate and resolve interference problems through technological solutions or by other mutually satisfactory arrangements.

As with the current system, there is an obligation on the part of all licensees to cooperate to resolve interference problems and there is no right to “hog” a particular spectrum band or even any particular amount of spectrum.

The FCC has expanded the original 3650 – 3700 band by an extra 100 MHz. It has at the same time reserved the 50 MHz from 3650 to 3700 for GAA operations. This means the GAA operators in this band can be bumped by Federal or Grandfathered incumbents, but will not have to worry about PALs demanding access to this band. PALs will be licensed in up to seven 10 MHz channels in the 3550 – 3650 MHz part of the CBRS band. GAA licensees can also operate in that part of the band, but they will be subject to bumping by PALs there. So GAA operators will have 50 MHz to themselves plus an additional 30 MHz that should be available in the band shared with PALs. Continue Reading

The FCC Looks Toward the Further Commercialization of the Educational Broadband Service

On the books for the FCC’s May Open Meeting will be a Notice of Proposed Rulemaking (NPRM) regarding rule changes to establish commercial eligibility for Educational Broadband Service (EBS) licenses and to “rationalize” the EBS service areas. EBS is not a well-known radio service, so to appreciate the significance of these changes, a little history is in order.

If there is one radio service epitomized by change, it is the EBS. EBS was first conceived in the 1960s as a means for schools to transmit video educational programming to off-campus locations. It was first called the Instructional Television Fixed Service (ITFS), and could be licensed only to accredited schools and nonprofit companies who used the channels to offer formal educational programming to accredited schools. At that time, the ITFS allocation was 168 MHz within the 2.5 GHz, which was a huge allocation, but no one at that time saw any other value in such a “high” frequency.

In the 1980s, Microband Corporation conceived of the concept of “wireless cable” and was able to convince the FCC to allow ITFS licensees to lease their “excess capacity” to wireless cable companies. With 168 MHz, there was considerable excess capacity. In addition, the FCC sawed off 48 MHz of that spectrum and created the MMDS which could be licensed to commercial entities.

As more and more companies went into the wireless cable business and leased ITFS “excess capacity,” the FCC was convinced that these ITFS stations needed protected service areas, not for their core educational transmissions, but to protect wireless cable receivers. So, the FCC gave them 710-mile protected service areas which would correspond to the directionality of the antenna system, but provide a 15-mile radius service area for an omnidirectional antenna system. Eventually, the wireless cable industry convinced the FCC to enlarge the protected service area to 35-mile radius, again to protect wireless cable reception at more remote points. Then the wireless cable industry convinced the FCC to allow digital transmissions over ITFS channels, again for the benefit of the wireless cable industry. Continue Reading

The FCC Moves to Accommodate Small Satellites

Photo courtesy of NASA Goddard Space Flight Center via the Creative Commons License.

Satellites – even small ones – need radio spectrum. Without radios to communicate, a satellite is just a hunk of metal and plastic in the sky.

The first man-made satellite, the Russian Sputnik in 1957, carried nothing but a radio transmitter. It sent a sequence of beeps that said: I am here.

Early communications satellites soon followed. These too are basically just radios in orbit; receivers to pick up signals from the ground and transmitters to send the same signals to somewhere else on the ground. With commercialization looming, the FCC allocated hundreds of megahertz of prime spectrum and set up licensing regimes for both satellite space stations and earth stations. Satellite launches needed an A-OK from the FCC.

The next few decades saw communications satellites grow in both physical size and transmission capacity. Some were the size of a school bus and weighed 6 tons. Joining them were satellites that photographed the ground from orbit and sent pictures down by radio: for espionage, weather forecasting, crop management, and checking out your house on Google Earth. Some of these applications needed a lot of spectrum and the FCC kept allocating more and more of it.

But even as the commercial satellites got bigger, a countertrend appeared. Hobbyists, researchers, and amateur radio operators saw value in much smaller satellites that could launch inexpensively by piggy-backing on the rockets that lifted the big ones. The smallest of these in regular use are CubeSats: standardized cubes measuring inches on a side. (A company recently got in trouble for launching something smaller, after the FCC told them not to.) Some satellites take the form of two, three, or six CubeSats piled on top of each other, like cubical Lego blocks.

It has been relatively easy to license small satellites for experimental or amateur-radio use. But innovators who wanted to try commercial applications have been stymied. All commercial satellites, even the really small ones, are subject to the same licensing regime, which includes a lot of sophisticated paperwork. The application filing fees run well into six figures. The FCC uses a “processing round” procedure that adds complexity and delay. A successful applicant must post a seven-figure surety bond to ensure that its satellites actually launch and become operational within specified timeframes. These rules work for large commercial satellites, and for large fleets of small satellites expected to function for years. But they effectively rule out small commercial satellites in smaller numbers, and those designed for short lives in orbit. Continue Reading

Multi-Line Telephone Systems and Enterprise Communications Systems; Kari’s Law and Other 911-Related Developments

Earlier this year, the President signed into federal law the Kari’s Law Act of 2017, a measure aimed at ensuring multi-line telephone systems (MLTS) users can directly access emergency personnel by dialing 911 without first dialing an access code. As you’ve probably observed, the passage of this new federal law was somewhat bittersweet, as the efforts to pass the law stemmed from a tragic event in 2013 where the inability to directly dial 911 from a hotel room resulted in a potentially preventable homicide. You’ve also probably observed that it took over four years for the federal government to adopt basic, uncontroversial, and seemingly common-sense requirements for how 911 calls from MLTS should work. Putting all that aside, Kari’s Law is now the law of the land when it comes to direct access to 911 from MLTS. But that’s not the end of it.

While progress in this area seems slow, lawmakers (and the industry as a whole) have been attempting to tackle, in addition to Kari’s Law, other MLTS/911-related issues that have been percolating for a while. This means more changes may be on the horizon, including some that might eventually result from a proceeding at the FCC involving 911 and Enterprise Communications Systems (ECS), a new term the FCC used to include both legacy MLTS and more advanced systems such as those using Internet Protocol or cloud-based services. For the companies that are involved with MLTS or ECS and 911, it’s a good time to take note of the landscape to implement necessary changes and to be prepared for other requirements that might be coming down the pipe.

Since Kari’s Law has been at the forefront of the discussion in the past few years, we’ll start there before circling back to other developments, including those at the state-level and at the FCC.

As you probably know, many telephone systems (in offices and hotels, for example) require an access code, or dialing prefix, to initiate calls outside of its system. This practice has proved problematic for users attempting to dial 911 who may be unfamiliar with the telephone system (e.g., children who have never worked in an office environment or made calls from hotels). Kari’s Law responded to this problem by mandating a new technical capability for MLTS, which is defined as “a system comprised of common control units, telephone sets, control hardware and software and adjunct systems.” Network and premises based systems, such as Centrex and VoIP, as well as PBX, Hybrid, and Key Telephone System, are included within this definition (which makes it more or less equivalent to the FCC’s ECS nomenclature, which is intended to refer to “the full range of networked communications systems that serve enterprises” – so we may use MLTS and ECS interchangeably).

Specifically, Kari’s Law, effective as of February 16, 2018, mandates that MLTS are preconfigured such that a user may dial 911 without first dialing any additional digit, code, prefix, or post-fix, even if the MLTS otherwise requires it for other calls outside its system. This means that nobody, including telephone companies selling MLTS services, may install, manage, or operate MLTS that lack that capability. To tackle the issue from another angle, Kari’s Law also prohibits the manufacture, importation, sale, and lease of MLTS without this capability, but that requirement has a two-year grace period and won’t take effect until February 16, 2020. Lastly, whenever 911 is dialed from an MLTS, the system must be configured to provide a notification to a central location at the facility where the MLTS is installed, or to a different location of the system operator’s choosing. These notifications are intended to alert the person or organization responsible for security that a potential emergency exists. This requirement does not have a grace period, taking effect immediately. However, it will only apply if the system can be so configured without an improvement to the hardware or software of the system.

While Kari’s Law just took effect in 2018, that doesn’t mean it’s been a lawless MLTS/911 landscape or that the issues haven’t been deliberated at many levels. Continue Reading

LPTV Displacement Filing Window Extended to June 1

On April 18, Commission’s Incentive Auction Task Force and Media Bureau announced that it was extending the special filing window for displaced Low Power Television and TV Translator Stations for a few extra weeks. The window for filing such applications will now close on June 1 at 11:59 p.m. EDT. The original due date was May 15.

The extension was to “allow applicants further time to analyze data and other information and to prepare or make changes to their applications accordingly.”

This action applies to only LPTV stations and TV translators being displaced from their current channel as a result of the TV spectrum repack. As we’ve previously written about, an LPTV is considered “operating” for purposes of eligibility for this window if it was constructed and licensed as of April 13, 2017.

If you need advice on navigating this filing window, we will have attorneys ready to help with strategy and application preparation. Reach out to us at www.fhhlaw.com or call us at (703) 812-0400.

$40 Million FCC Settlement with T-Mobile for Rural Call Completion Issues Signal of Things to Come

Photo by Osama Saeed

Callers placing long distance calls to rural areas have, at times, experienced difficulties in having their calls go through. This occurs most often in rural areas where the costs incurred by long distance providers have generally been higher than in non-rural areas. In 2012, the FCC issued a declaratory ruling which determined that carriers that knew, or should have known, that calls were not being completed to rural areas (and failed to correct the problem) could be liable for violating Section 201 of the Communications Act. This decision also applied to calls that were being degraded by the carrier (or by intermediate or other entities acting for or employed by the carrier). In 2013, the FCC issued a follow-up order prohibiting carriers from sending an audible ringtone to a calling party to make them believe that a phone call made to a rural area was ringing at the receiving end, when the call had not actually gone through.

Fast forward to 2016 when FCC began receiving complaints from three rural telephone companies in Wisconsin that T-Mobile customers could not complete calls to customers served by those rural phone companies. Many complaints reported that callers heard ringtones on calls that failed to reach rural customers. T-Mobile investigated the complaints and reported to the FCC that the connection problems were due to the involvement of an intermediate carrier and that all the complaints had been resolved. However, T-Mobile did not address the ringtone issue raised by some of the complaints.

After T-Mobile’s response, the FCC received several additional complaints regarding call completion and ringtone issues. As a result, the FCC issued a letter of inquiry (LOI) to investigate the matter further. In response to the LOI and a supplemental LOI, T-Mobile reported that in 2007 it began using servers that included a “Local Ring Back Tone” (LRBT) for calls from customers that took more than a predetermined amount of time to complete. T‑Mobile further reported that in 2013, as it migrated to different servers, T-Mobile began using its LRBT protocol only for the out-of-network calls from its customers that were routed via Session Initiation Protocol (SIP) trunks. However, T‑Mobile apparently continued using LRBT even on calls that failed to reach rural customers after the FCC rules that prohibited the practice went into effect. The FCC determined that T-Mobile’s use of LRBT likely caused callers to receive false ringtones for hundreds of millions of calls each year.

In order to end the FCC’s investigation into T-Mobile’s alleged violation of rural call completion and ringtone rules, T-Mobile entered into a consent decree to pay a $40 million civil penalty and to undertake other measures to ensure compliance with the FCC’s rural call completion and ringtone rules. A full copy of the consent decree can be found here. Clearly, the FCC takes the rural call completion and LRBT issue very seriously.

In addition to its willingness to take enforcement actions, the FCC on Tuesday, April 17 voted to adopt new requirements and proposed more rule changes to continue to address rural completion issues. Under the new requirements, carriers must, among other things, monitor the performance of the intermediate providers to which they are connected and take steps to correct any performance issues related to call completion when necessary. While the final text of the FCC’s April 17 call completion action has yet to be released (check back here for more info when it is), carriers would be prudent to start making plans to review their procedures and intermediate carrier relationships to address potential rural call completion issues.

If you have any questions please call us at (703) 812-0400.

Wrong Number! D.C. Circuit Rules on Challenges to the FCC’s 2015 TCPA Order Part IV: What’s Next – New FCC Rulemakings and Impact on Litigation

Robocalls – everyone has strong feelings about them. In many cases they serve a useful function, but they are often unwanted and/or fraudulent, and they are the largest source of consumer complaints to the FCC. In response, the FCC in 2015 issued a Declaratory Ruling and Order intended to broaden the number of calls subject to the FCC’s enforcement powers under the Telephone Consumer Protection Act (TCPA). On appeal, though, the D.C. Circuit recently reversed the FCC’s controversially broad definition of “automatic telephone dialing system” (ATDS or autodialers) and its one-call safe harbor for calls made to numbers have been reassigned to a new subscriber. On the other hand, the court upheld the FCC’s 2015 holding that callers may revoke their consent to calls in any reasonable manner. The ATDS and safe harbor issues were remanded back to the FCC, which will likely address the issues in new rulemaking proceedings, including a proceeding opened on March 22rd seeking comments on ways to address the problem of unwanted calls to reassigned numbers. It is not clear at this time what the impact of all of this will be on pending and future TCPA litigation.

In our four-part series, we broke down the controversy over the definition of “autodialer,” the means by which consumers can revoke their consent to be called, the issue of consent for calls to telephone numbers that have been reassigned to new subscribers, the FCC’s new proceeding on using databases to minimize the impact of reassigned numbers, and where this TCPA litigation goes from here.

Below is part four of our series. Catch up on parts one, two, and three here.

4. What’s Next – New FCC Rulemakings and the Impact on Litigation

So, where do things go from here? We expect the FCC to initiate rulemaking proceedings to address the issues the court remanded: the definition of “autodialer” and the reassignment of numbers. In the 2015 Order, then-Commissioner (now Chairman) Ajit Pai expressed his disdain for unwanted telemarketing calls, but objected strongly to the FCC’s overly-broad definition, asserting that it will substantially increase litigation against parties acting in good-faith. Now, he has a chance to shape the discussion on remand.

Regarding TCPA compliance where numbers have been reassigned, on March 22nd the FCC adopted a Notice of Proposed Rulemaking seeking comments on the use of databases to reduce the problem. In that Notice, the FCC:

  • Proposes to ensure that one or more databases are available to provide callers with the comprehensive and timely information they need to avoid calling reassigned numbers;
  • Seeks comment on the information that callers who choose to use a reassigned numbers database need to avoid calling a reassigned number. Notably, the NPRM seeks to minimize the consumer information provided to the database (to protect consumer privacy associated with that information) while maximizing the effectiveness of the database to protect consumer privacy interests in not receiving unwanted calls;
  • Seeks feedback on three alternative ideas for service providers to report that information: 1) requiring service providers to report reassigned number information to a single, FCC-designated database; 2) requiring service providers to report that information to one or more commercial data aggregators; or 3) allowing service providers to report that information to commercial data aggregators on a voluntary basis; and
  • Seeks comment on whether andhow the Commission should adopt a safe harbor from liability under the Telephone Consumer Protection Act for those callers that choose to use a reassigned numbers database. What sort of liability would such a safe harbor protect callers from:  calling any reassigned number or from calls where the database information was inaccurate?

It is unclear what immediate impact, if any, all of this will have on TCPA litigation. Many courts had stayed pending litigation in anticipation of the D.C. Circuit’s rulings. Now that core issues have been remanded back to the FCC, different courts may take different approaches to the status of pending cases. For companies seeking to remain in compliance with TCPA, the initiation of new rulemakings on key issues will create on-going regulatory risks. But, there is no uncertainty over the requirement that callers obtain prior express written consent for autodialed calls to wireless numbers, so companies should certainly make sure that they continue to have such consent.

We will follow the TCPA rulemakings at CommLawBlog, but if you have questions about TCPA compliance, please call us at (703) 812-0400 or visit us at www.fhhlaw.com.

Comments on FCC Proposed EEO Form 397 Elimination due by April 30; Reply Comments Due May 15

In March 2018, the FCC proposed eliminating the Equal Employment Opportunity Mid-Term Report (also known as Form 397) and now those wishing to voice their opinions can do so until April 30. As we’ve discussed before, this is part of the FCC’s ongoing Modernization of Media Regulation Initiative (spearheaded by Chairman Pai). Currently, Form 397 is intended to provide the FCC with information about a broadcast station’s employment practices at the midpoint of the station’s eight-year license term. The form consists of a very brief cover portion and attachment of the station’s last two EEO Public File Reports. Form 397 currently must be filed by TV stations with five or more-full-time employees and radio stations with 11 or more full-time employees (smaller station employment units may file the Form to confirm their smaller size but are not required to do so).

The FCC, and those advocating for the elimination of Form 397, argue that it is redundant and is becoming, “unnecessary and unduly burdensome, and most of the information it contains is otherwise available to the Commission.” Organizations such as the National Association of Broadcasters have voiced their support for the elimination of Form 397 with the advent of the Online Public Inspection File. Due to a statutory mandate, the Commission will still be required to conduct a mid-term review of all station employment units that would have been required to file the Form 397. Without the Form 397, however, the Commission recognized that there would no longer be a single place where it could determine which stations were subject to such reviews. Thus, by seeking comment on the proposal, the FCC is also looking to the public on suggested ways they could track this information, such as adding a requirement that this information appear in a station’s annual EEO Public File Report or be entered elsewhere in the online public file.

The proposal was published in the Federal Register this week. Comments can be filed until April 30 with reply comments due by May 15. If you wish to submit a comment and need assistance, contact us at 703-812-0400.


FCC Issues Big Fines to Sprint and Mobilitie for Siting Violations

(But Doesn’t Offer Much Explanation as to Details or Guidance for Future Acceptable Action)

On April 10, the FCC released Orders and associated Consent Decrees resolving investigations into alleged violations of the site registration and/or pre-construction environmental review procedures by Sprint and Mobilitie. In the past, the Commission has made it clear that it means business when it comes to enforcing compliance with the often rigorous, expensive, and time-consuming procedures necessary to meet the environmental rules, which include the rules requiring evaluation and avoidance of adverse effects on historical and tribal sites.

The sheer size of the amounts required to settle the investigations, however, was enough to catch our attention: $10 million for Sprint and $1.6 million for Mobilitie. While the Consent Decrees referenced multiple violations of the rules, the number of sites and violations involved was not stated. In the past the FCC has used $7,000 as a base forfeiture amount for violations of this sort; therefore, one might conclude from the size of the settlement amount that there were either 1,400 sites implicated in the Sprint investigation (and over 200 in the Mobilitie one) or that there were egregious circumstances justifying multiplication of the base fine. The Consent Decree is frustratingly silent on this point, which unfortunately leaves the industry – those who might be expected to be warned and alarmed by this action – without a clear sense of how bad the alleged offenses were. We say “alleged offenses” because, while the Commission appeared to find non-compliance, termination of the investigation by settlement does not result in a finding of a violation of the law.

Apart from the size of the settlement amounts, we note two interesting features of these orders. First, the FCC has made it clear that amounts paid pursuant to consent decrees are not tax deductible. This is made explicit on page four in both consent decrees. In years past, parties could argue that these payments were “voluntary payments” (deductible) rather than fines (non-deductible). That ambiguity has been resolved. Second, in the case of Sprint, the decree indicates that compliance with the rules was the responsibility of a third party provider who undertook to build the sites and handle the environmental compliance. Yet, Sprint, one of multiple carriers who were to use the subject sites, was charged with the violation. Mobilitie, on the other hand, was itself the third party provider who constructed the sites and should have handled the environmental reviews; yet Mobilitie, rather than the ultimate carriers, was socked with the violation.

Why the FCC treated the carrier as the responsible party in one case and the site constructor in the other is not made clear by the FCC’s orders or the consent decrees. So, while the FCC certainly intends to signal its seriousness about compliance with the rules, it does not clearly explain which parties are responsible for that compliance.

Wrong Number!  D.C. Circuit Rules on Challenges to the FCC’s 2015 TCPA Order Part III: The Problem of Reassigned Phone Numbers

Photo credit to James Baker (https://bestreviewsbase.com/), using the Creative Commons Licence

Robocalls – everyone has strong feelings about them. In many cases robocalls, or automated calls and text messages, serve a useful function (and not just for telemarketing). But unfortunately, they are often unwanted and/or fraudulent, and they are the largest source of consumer complaints to the FCC. In response, the FCC in 2015 issued a Declaratory Ruling and Order (“2015 Order”) intended to broaden the number of robocalls subject to the FCC’s enforcement powers under the Telephone Consumer Protection Act (TCPA). (Read our past blog coverage on the FCC’s 2015 Order if you want to brush up on the particulars.) On appeal, though, the D.C. Circuit recently rejected several aspects of the 2015 Order, including the FCC’s controversially broad definition of “automatic telephone dialing system” (ATDS or autodialers) and its one-call safe harbor for calls made to numbers that have been reassigned to a new subscriber. On the other hand, the court upheld the FCC’s 2015 holding that callers may revoke their consent to calls in any reasonable manner. The ATDS and safe harbor issues were remanded back to the FCC, which will likely address the issues in new rulemaking proceedings, including a proceeding opened on March 23rd seeking comments on ways to address the problem of unwanted calls to reassigned numbers.

In our four-part series, we break down the controversy over the definition of “autodialer,” the means by which consumers can revoke their consent to be called, the issue of consent for calls to telephone numbers that have been reassigned to new subscribers, the FCC’s new proceeding on using databases to minimize the impact of reassigned numbers, and what impact all of this might have on pending and future TCPA litigation.

Below is part three of our series. (Catch up and read part one and part two.)

III.           Calls to Numbers That Have Been Reassigned to New Subscribers

Did you ever call a cell number only to discover that the number is no longer used by the person you intended to call, but rather has been reassigned to someone new? That’s an inconvenience for you, but a potential TCPA violation for a telemarketer or other business trying to contact you through automated means. The problem, from the caller’s perspective, is that there is no public wireless telephone number directory, and individuals may change their phone numbers without notifying the caller to whom it had given consent for calls. This can lead to callers making calls in good faith (i.e., intending to call Ms. X who had given consent to receive calls), but resulting in a TCPA violation (since the called number was reassigned to Mr. Y, who did not consent to receive such calls). Much litigation occurs as a result of this problem.

Again, with the goal of enhancing its TCPA enforcement, the FCC’s 2015 Order held that “the TCPA requires the consent not of the intended recipient of a call, but of the current subscriber (or non-subscriber customary user of the phone)….” The Order clarified, however, that “callers who make calls without knowledge of reassignment and with a reasonable basis to believe that they have valid consent to make the call should be able to initiate one call after reassignment as an additional opportunity to gain actual or constructive knowledge of the reassignment and cease future calls to the new subscriber. If this one additional call does not yield actual knowledge of reassignment, we deem the caller to have constructive knowledge of such.” Thus, in the case of reassignment of a wireless numbers, callers had a one-call “safe harbor” from being subject to liability for TCPA violations (even if that one call did not reveal that the number’s subscriber had changed).

While recognizing that the Commission reasonably chose not to impose strict liability (i.e., violation on the first call even if the caller had reason to think that it was complying with the TCPA) in this context, the Court found the Commission’s one-call safe harbor to be impermissibly arbitrary. Given that in other places in the 2015 Order, the Commission had allowed callers to “reasonably rely” on the consent a subscriber gives to call his number, the Court did not accept that such reasonable reliance is properly limited to only one call when the consenting party’s number has been reassigned, especially since that one call may give no indication of the reassignment. The Court remanded the entire issue of reassigned numbers back to the FCC, and it invited the FCC to find a technological solution.

Stay tuned for the final part in our series, where we’ll discuss the FCC’s next steps and as well as how all of these changes will possibly impact TCPA litigation. If you have questions about TCPA compliance, please call us at (703) 812-0400 or visit us at www.fhhlaw.com.