Monthly TCPA Digest December 2018: Part I – TCPA Regulatory Update
The FCC held its last open meeting of 2018 on December 12, approving two items related to the TCPA as part of its busy year-end agenda, including an item establishing a reassigned number database.
We discuss these items and a few other recent regulatory issues of interest below.
First, the FCC unanimously approved a Second Report & Order (“2nd R&O”) establishing a single, comprehensive reassigned numbers database that will — once operational — allow a caller to check whether a telephone number still belongs to a particular consumer who has provided prior express consent. Although the database is referred to as a “reassigned numbers database,” it will actually contain information on when numbers were last permanently disconnected, allowing a caller to verify whether a particular consumer is still associated with a number the caller has on file as of a date provided by the caller. If a number has been permanently disconnected, it will become eligible for reassignment following a 45-day aging period.
The 2nd R&O also adopts a safe harbor for callers that rely on the database to learn if a number has been disconnected and potentially reassigned. The safe harbor is intended to protect good faith callers against database errors. To take advantage of the safe harbor, a caller would need to show that the most recent update of the database reported inaccurately that a number had not been disconnected and the caller reasonably relied on that information when making a particular call. The FCC further explained that the safe harbor is not an “exemption” from the TCPA and its rules, but rather a means to come into compliance.
The 2nd R&O follows up on a Second Further Notice of Proposed Rulemaking (“2nd FNPRM”) adopted by the FCC in late March proposing the creation of such a database. Notably, the addition of a safe harbor was a last minute twist. The draft 2nd R&O released by the FCC prior to the meeting did not contain language regarding a safe harbor and instead stated that the FCC would address liability in its broader pending rulemaking on TCPA issues stemming from ACA International. But a request from Commissioner Carr and strong support from NCTA, the American Cable Association, CTIA, and others appears to have swayed the remaining Commissioners. Commissioner O’Rielly and Chairman Pai also noted that they were pleased with the safe harbor addition.
The 2nd R&O establishes a number of procedures related to the operation of the reassigned numbers database, including a requirement that voice providers report permanently disconnected numbers to the database on a monthly basis. Callers will be able to query the database by entering a phone number and the latest date at which a particular consumer was reached at that number, and the database will provide a simple “Yes,” “No,” or “No Data” regarding whether that number has since been permanently disconnected. The database will be run by an independent third-party administrator, which will be selected by the FCC through a competitive bidding process. Start-up costs will be collected from providers, using the same type of mechanism as other numbering administration costs, and will later be returned to providers through offsets to future number administration charges. Operating costs will be paid by fees to access the database. The North American Numbering Council will provide recommendations on technical and other issues relating to implementation of the database.
Although this proceeding does not modify the FCC’s existing TCPA interpretations, the existence of a reassigned numbers database may impact the FCC’s rulemaking on remand from ACA International, in which it is considering liability for calls to reassigned numbers.
Second, the FCC issued a Declaratory Ruling classifying Short Message Service (“SMS”) and Multimedia Messaging Service (“MMS”) (together referred to as “text messaging”) as Title I information services, rather than Title II telecommunications services or interconnected services. As part of its ruling, the FCC found that application of the TCPA to text messaging does not require it to be classified as a Title II service.
The Declaratory Ruling was issued in response to a 2015 petition filed by Twilio, a provider of mass text messaging services, and a 2007 Petition from Public Knowledge et al., both of which asked the FCC to declare that text messaging services are “telecommunications services” and “commercial mobile services.” In denying the petitions, the FCC noted that a “wide range of commenters” opposed them, including government entities concerned about limitations on the ability to combat unwanted messages. The item was approved over Commissioner Jessica Rosenworcel’s dissent.
Representatives from the cable, wireless, banking, healthcare, and retail industries, network operators, local and state legislators, consumer advocates, and providers of call blocking technology met with the FCC this month to discuss the two items it approved at the Open Meeting, as well as its Public Notice on interpreting the TCPA in light of ACA International and other federal court opinions; progress made toward the adoption of the SHAKEN/STIR caller authentication framework; and numerous other issues.
Forty state attorneys general have formed a bipartisan working group to combat illegal and unwanted robocalls. Since it was formed in early December, the working group has had in-depth meetings with several major telecom companies to learn about new technologies in development to fight these calls. In addition to building an understanding of how these technologies work, the attorneys general plan to encourage major telecom companies to quickly adopt solutions for consumers and determine what steps states can ask the federal government to take to combat the problem. North Carolina’s Josh Stein is leading the group, along with a 15-member executive committee of attorneys general.