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TCPA Safeharbor Star is Born: FCC Comissioner O’Rielly Explains His Thoughts on the FCC’s New Recycled Number Database, the TCPA and How the New Safeharbor Was Born

I can always count on the TCPAland faithful to keep me honest. To wit: an eagle-eyed reader sent me the following comment today:

Eric – Yesterday you said “Notice that the FCC specifically and expressly refuses to opine how the use of the database might cut down on TCPA liability. It could have, for instance, created a safeharbor. But it didn’t.”  Today the FCC press release says, “To further encourage callers to use the database, the Commission is providing callers a safe harbor from liability for any calls to reassigned numbers caused by database error.”  Did the FCC change its mind, or is this safe harbor less than the comprehensive safe harbor you had in mind, or what?  Thanks.

To which I quickly re-reviewed the Report and Order and compared it to the press release and thought to myself: “Hmmm… how did that get in there?”

Well, it didn’t take long to get an answer. In his just released statement Commissioner O’Rielly–sometimes known as the ‘Best Commissioner” here at TCPAland.com–explained that and so much more.  Given how germane his statement is I figured I would re-publish it, entirely, here for your enjoyment:

Earlier this year, the U.S. Court of Appeals for the D.C. Circuit took a welcome step in restoring common sense to our agency’s interpretation of the TCPA. Among other matters, the court vacated the misguided 2015 decision to impose liability on callers that attempt to reach a consenting party whose wireless number has become reassigned without the caller’s knowledge—apart from an “arbitrary and capricious” one-call safe harbor. Other than creating a windfall for plaintiffs’ lawyers, the irrational onecall rule did nothing to solve the problem of reassigned numbers, and instead imposed unfair harms on legitimate companies seeking to offer legitimate services to interested customers.

This Order seeks to undo the previous Commission’s defective approach to reassigned numbers by establishing a new comprehensive reassigned numbers database. As I have stated in the past, my preference would have been to utilize existing commercially available databases, which have improved in recent years, and offer legal protection to those who use them. Our action does not necessarily crowd out those efforts, and there is a chance competition among offerings may develop and produce interesting results.

Moreover, to the extent that the purpose of creating the database is to insulate users from liability, it would have been more fitting, in my opinion, to first address the definition of “called party” in the context of the TCPA. After all, should the Commission decide to rightfully re-define “called party” as the intended recipient of the call—rather than the subscriber of the number—the legal liability basis for establishing the database would significantly dissipate. However, I respect the Chairman’s decision to take the current approach and have been promised that a comprehensive redo of our TCPA rules will be considered promptly.

Additionally, I am grateful to his office for working with me to insert, at my request, a robust safe harbor in this item. The costs of creating, maintaining, and using the database will be significant, and we simply cannot justify it without providing a corresponding benefit to callers who pay to use it. In all reality, this database will always be imperfect, meaning, despite our action effectively requiring callers to use it, users will still need to be shielded from pointless lawsuits. This is a critical improvement to the item.

While our action today helps in addressing abusive and predatory TCPA litigation, I do remain concerned about the costs of the database for service providers and users. Lessons from the private sector have taught us that requisite database dips to verify reassignment can become cost-prohibitive for businesses. Moreover, as structured in the Order, data dips are likely to surge at certain times and will require additional investments by the administrator in server capacity to handle peak traffic days—the costs of which will ultimately be borne by users. I urge the North American Numbering Council (NANC)—to whom we have delegated substantial discretion to develop a database administration plan— to focus on minimizing costs and burdens for users and service providers and ensuring that it is reasonably affordable for all to use. I also thank the Chairman for agreeing to conduct a comment process in response the NANC’s recommendation, and to solicit feedback in response to paperwork burdens imposed by the Technical Requirements Document.

Further, while I am hopeful that the database will accomplish its intended purpose, it would be naïve to think that it will comprehensively fix the reassigned numbers problem. In forming our expectations, we would be wise to keep in mind the costly and ineffective Do-Not-Call Registry, which never stopped bad actors from targeting those on the list. Let’s accept fate that, ultimately, only the honest and legitimate callers will  consult the reassigned numbers database—not the criminals and scammers.

Today’s action is a positive development in reversing the previous FCC’s deeply-flawed 2015 TCPA Order. However, much more work remains, particularly on narrowing the prior Commission’s ludicrous definition of “autodialer,” and eliminating the lawless revocation of consent rule. I am optimistic that our next steps will go a long way in reading the TCPA in a logical way and limiting wasteful and frivolous TCPA litigation that does nothing to protect consumers or stop illegal robocalls.

Statement of Commissioner Michael O’Rielly Re: Advanced Methods to Target and Eliminate Unlawful Robocalls, CG Docket No. 17-59. Released: December 12, 2018

*Rousing applause turning to a standing TCPAland ovation.*

Thank you to Comissioner O’Rielly for advancing the critical safeharbor initiative and also for so clearly and concisely articulating the continuing flaws in the TCPA landscape.

Copyright © 2019 Womble Bond Dickinson (US) LLP All Rights Reserved.

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