Believe it or not, there are companies that make legitimate “robocalls,” and those companies strive to comply with the Telephone Consumer Protection Act (TCPA). If you’ve received an appointment reminder from your doctor or dentist, a package delivery notification, or a school closure notification lately those messages were likely delivered to your phone using an automated calling system (robocalling). For these legitimate robocallers, TCPA compliance is a constant challenge, and one of those challenges is making sure not to call reassigned phone numbers for which the caller no longer has consent to make robocalls. Failure to meet this challenge can create significant financial risks from class action litigation or Federal Communications Commission (“FCC” or “Commission”) enforcement action.
For years, service providers that enable robocalling and the companies that rely on those robocalls for communicating with consumers have wanted the FCC to create a reassigned number database. Such a database would help a caller know when a consumer who has consented to receive robocalls stops using the number the consumer provided to the caller. In turn, the caller could then stop making calls to that number before it is reassigned to a new end user.
At long last, businesses that make and rely on legitimate robocalls are getting what they want — sort of.
On Wednesday, the Commission is expected to mandate the creation of a reassigned number database of sorts, but the database provides significantly less protection to callers than many businesses desire. For starters, the database will not identify when a number is reassigned, it will identify when a number is permanently disconnected. A permanent disconnection does not include when a number is disconnected to be ported (basically transferred) to another service provider for use by the same user, and it also does not include temporary disconnections for delinquent payments by an end user.
What’s more concerning for businesses that make or facilitate legitimate robocalls is that the database will not provide safe harbor protection for callers that use it. Instead, the database will require callers to use it proactively as only one piece of a comprehensive TCPA compliance policy. Both the design of the new database and the complicated nature of consent under the TCPA preclude the new database from acting as a true safe harbor for callers that use it.
The FCC’s action will require voice service providers to report on a monthly basis any permanent disconnection of a number used by their subscribers. This reporting requirement will not be retroactive, however, so the reassigned number database will only provide information for numbers reassigned after the reporting requirement takes effect (which will be further delayed by six months for small providers). Therefore, even after the creation of the database, callers using it cannot be certain whether a number for which they have consent to call has been reassigned if the consent predates creation of this database.
In addition to the database’s prospective-only design, the TCPA itself makes it impossible for callers to rely solely on the reassigned number database to ensure they still have consent to call a number. Generally speaking, the TCPA requires a caller to get consent from a called party before making calls (including texts) using an automated telephone dialing system (autodialer) to the called party’s phone number. If a number gets reassigned, the new user of that phone number would not have given consent to receive robocalls, even if the previous user did. While the new database will help legitimate callers avoid calling reassigned numbers without permission, there are other ways a caller could lose consent to make robocalls to a number. For example, a consumer could simply revoke previously given consent. Or if a consumer ports a residential landline number to a wireless provider, a previously given consent may no longer apply because calls to wireless numbers could have more stringent consent requirements.
In sum, the FCC’s reassigned number database will offer an additional tool for legitimate robocallers to avoid TCPA liability. However, it likely will not significantly reduce TCPA risks for businesses that make robocalls and the robocall providers on which they rely because many potential TCPA violations have little or nothing to do with number reassignment. Likewise, the reassigned number database offers little relief to consumers from the wave of unwanted robocalls that are often made by illegitimate callers with little regard for TCPA compliance. The FCC’s new database is certainly welcome news, but much work remains to make sure the TCPA effectively protects consumers from unwanted robocalls while giving legitimate callers clearer rules of the road for avoiding costly TCPA compliance problems.
Keep an eye on CommLawBlog for more TCPA updates and for more detailed information about the new reassigned number database after the FCC’s Open Meeting on December 12.