December 3, 2021

Volume XI, Number 337

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Alert: New TCPA Risk Avoidance Tool

It was back in December 2018, before the pandemic temporarily shuttered stores and forced the whole world to “go remote,” that the FCC voted to create a national reassigned number database (RND) to help companies that send auto-dialed text messages and make robocalls avoid the liability that had been created in 2015 when the FCC interpreted the Telephone Consumer Protection Act (TCPA) to impose liability where auto-dialed calls or texts were made to a telephone number that had been assigned to a new user. As we have covered, progress towards building a national database that would allow companies to know whether or not the number that had previously opted-in to receive auto-dialed calls and text messages had subsequently been reassigned to a new user has been slow, at best. But, after several months of beta testing, the FCC has now announced that the RND will go live on November 1, 2021. Below, we provide all the important details that any company making auto-dialed calls or sending auto-dialed text messages should understand about the RND and how it can help mitigate potential TCPA liability.

  • When: The FCC’s RND is scheduled to go live on November 1. Registration for callers and caller agents to subscribe as users began on October 1.

  • What (does the RND do and not do): Identifies whether a telephone number has been permanently disconnected by the carrier and is, therefore, subject to being reassigned to a new user. Any number that is listed in the database has having been “disconnected,” should be removed from a company’s contact list to prevent future calls. It does not identify to whom a telephone number currently belongs or facilitate matching telephone numbers to consumers.

  • Why: Reduce potential TCPA legal risk from calling numbers that have been permanently disconnected and no longer belong to the person who provided their prior express consent to receive auto-dialed calls or text messages. Because your company does not have valid consent from the new owner of the cellphone number after the number has been disconnected, the number should be removed from contact lists. According to the FCC, approximately 35 million numbers are permanently disconnected and made available for reassignment to new consumers each year.

Q: Who should use this database?

A: Any businesses and other entities such as schools, health care providers who regularly contact consumers (via auto-dialed calls or texts) and want to ensure that the numbers in their contact lists have not been disconnected since the date consumers provided prior express consent to be contacted on that number.

Callers who making recurring auto-dialed calls or send recurring auto-dialed text messages, such that consent is maintained for an extended period of time, have an even greater need to scrub their lists against the RND because the passage of time increases the likelihood that a number has been disconnected and reassigned to a new user. Under the FCC’s policies, a telephone number is “aged” for a period of as little as 45 days after disconnect before it may be reassigned to a different user. As such, regularly checking contact lists against the RND is important to ensuring that numbers do not get reassigned before being removed from a calling list.

Q: Does the RND replace existing Do Not Call protocols?

A: No. The two databases operate completely independently. Callers should not use the RND to replace their Do Not Call (“DNC”) scrubbing processes and procedures. Just because a number returns a “no” disconnection response from the RND does not mean that it is not listed on a state or federal DNC list. Therefore, callers should continue to utilize their existing DNC and opt-out protocols.

Q: How does the RND Safe Harbor work?

A: The Safe Harbor is the primary reason for using the RND. Callers and Caller Agents may query the RND to determine whether a telephone number has been permanently disconnected from the consumer they intend to reach, thus allowing them to avoid calling consumers with numbers that have been disconnected and reassigned to individuals who are not their customers or intended contacts and who may pursue TCPA litigation as a result of such unwanted and unconsented calls.

Callers and Caller Agents who query the RND will receive one of three responses for each telephone number queried: “yes,” “no,” or “no data.”  These responses will indicate whether the number has been reassigned (or more accurately, permanently disconnected) since the date provided. 

The FCC defined a safe harbor from potential TCPA liability for Callers who can demonstrate that they appropriately checked the most recent update (“most recent numbering information reported to the Administrator)* of the RND and that the RND incorrectly reported a “no” response. For example, if a caller relies on the “no” response from the RND and then proceeds to contact the number receiving the “no” response only to learn that it had been reassigned and no longer belongs to their customer, the safe harbor could then provide protection to the caller from TCPA exposure. See below for more information regarding the required legal elements of a RND defense.

The following table summarizes the three possible responses to RND queries and how the Safe Harbor applies to each:

“Yes” (number has been disconnected)

No Safe Harbor applies because the telephone number queried has been permanently disconnected (no longer belongs to your intended contact).

“No” (number has not been disconnected)

Safe Harbor may apply because the telephone number queried has not been permanently disconnected from the time when consent was provided. (See next question for additional details.)

“No Data”

No Safe Harbor applies because there is insufficient data to determine if the telephone number was permanently disconnected since consent was provided.

Q: How will Safe Harbor work in litigation?

A: If someone files suit under the TCPA for reassigned number calls, you should be able to defend against those calls if you are able to demonstrate:

  • that you had obtained consent to call the number,

  • that you checked the latest update of the RND before calling, and

  • that the RND indicated a “no” response (that the number had not been reassigned after you obtained consent). 

Please note that the legal burden of proof is on the caller defendant. Therefore, companies using the RND should also implement procedures that document how the company will implement the RND scrubs and maintain business records memorializing each of its database checks and the results returned.

Q: How do I use the RND/what do I need?

A: In order to submit a query/use the database, callers must first register as a user of the database. Once registered, users of the database have different options on how they interact with the database, each of which have different limitations on the number of telephone numbers that can be queried:

  • Directly within the RND GUI — up to 50 telephone numbers

  • Using the RND GUI file upload function — up to 250,000 telephone numbers per file

  • Uploading files via Secure File Transfer Protocol (SFTP) — up to 250,000 telephone numbers per file

  • Using an API — up to 1,000 telephone numbers at a time

In order to submit a query, users will need the telephone number they want to check and the date of consent. The “date of consent” is one of two things:

  • The date when the company obtained consent from the consumer to call the number. For example, when the consumer provided the number in an account application that contained the requisite provision of consent language.

  • Or the last date on which the company is reasonably certain that the consumer could still be reached at that number.  For example, you might select the date when the company last spoke to the consumer at that telephone number or the date the consumer last updated their contact information.

Q: Who is providing the numbers for (populating) this database? 

A: Every telephone carrier that obtains telephone numbers from the North American Numbering Plan Administrator or the Toll-Free Numbering Administrator for toll-free numbers are required to report permanently disconnected numbers.  All large and medium-sized voice providers began reporting their permanently disconnected numbers on April 15, 2021; remaining small voice providers are required to begin reporting their numbers no later than October 15, 2021. To date, the database already contains over 100 million numbers.

Q: What’s the cost?

A: Callers using the RND are required to pay a cost for each number that they query or, optionally, enter into a subscription. The pricing decreases as the amount of queries performed by the company increases.

Q: Where can I learn more?

A: The RND website www.reassigned.us provides additional information about registering for the database and completing queries.

Copyright © 2021 Womble Bond Dickinson (US) LLP All Rights Reserved.National Law Review, Volume XI, Number 293
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About this Author

Michael Selle Litigation Attorney Womble Bond Dickinson North Carolina Charlotte
Of Counsel

Mike is an experienced litigator with the expertise to not only lead his clients through challenging, high-stakes litigation, but who can also draw upon decades of providing litigation avoidance guidance and solutions to his clients.  In Mike’s view “the best litigators shouldn’t only be good at fighting the legal battles, they should be just as good at helping their clients avoid ever getting into those battles in the first place.” 

Mike has a diverse legal background, having most recently spent over fifteen years as in-house counsel in both...

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