January 22, 2019

TCPA Tea Leaves: Here’s Our Best Guess at How the FCC’s New Recycled Number Database Will Work and What It Will Mean for the Future of the TCPA

Tomorrow the FCC is set to meet and, presumably, to approve a Second Report and Order creating a database of re-assigned numbers. The report and order is available here. 

The database is being created to help callers avoid calling wrong numbers. When a phone number is reassigned currently there is no way for a caller to know that–unless the consumer informs the caller their phone number has changed hands, which they rarely do. So there have been a bunch of unwanted “robocalls” sent to the new owner of someone else’s phone number lately. (You may have noticed.)

While some might say that getting a few stray calls for a former subscriber is just the cost of getting a new phone these days, the FCC disagrees and plans to issue regulations mandating carriers supply phone numbers and dates of “permanent disconnection” to a third-party administrator who will make this information available to callers on a pay-per-view basis.

Why would callers pay to prevent wrong number phone calls? Because they’re good people, of course.

Just kidding.

The database will help callers avoid liability under the Telephone Consumer Protection Act (“TCPA”) that, as currently interpreted, makes callers (sort of) strictly liable for calls made to a number that has recycled without their knowledge. (I say sort of because callers can rely on a former subscriber’s consent for a ‘reasonable” period of time, but no one really knows how long that is just yet.)

So here’s a high-level review of the Report and Order cribbed from the FCC’s fact sheet:

  • It will establish a single, comprehensive reassigned numbers database that will enable callers to verify whether a telephone number has been permanently disconnected, and is therefore eligible for reassignment, before calling that number;

  • It will require a minimum aging period of 45 days before permanently disconnected telephone numbers can be reassigned;

  • It will require voice providers that receive North American Numbering Plan numbers and the Toll Free Numbering Administrator to report on a monthly basis information regarding permanently disconnected numbers to the database.

  • An independent third-party administrator will be selected, using a competitive bidding process, to manage the reassigned numbers database.

  • The Administrator will establish the database by collecting start-up costs from providers using the same type of mechanism as other numbering administration costs.

  • The Administrator will take steps to ensure that the data contained in the database are used appropriately and accessible to the widest possible array of users.

Here’s the key stuff from the order itself:

  • “Specifically, we require providers to report the last date of permanent disconnection associated with their allocated and ported-in numbers to a reassigned numbers database administrator. A caller can then, if it chooses, use the database to determine whether a telephone number has been permanently disconnected after a date certain and therefore is no longer assigned to the party the caller wants to reach.

  • We find that the database needs only the date of the most recent permanent disconnection of a particular number in order to enable a caller to determine whether that number has been permanently disconnected since a date provided by the caller.

  • We establish a minimum aging period of 45 days…

So a caller using the database will only know whether or not a number has been disconnected since consent was supplied–meaning you better track dates you obtain consent folks. Additionally, note that numbers cannot be reassigned for at least 45 days now. That should build in some time for callers to use the database without calling anyone who has been assigned a new number. (Although one wonders who will be liable if a number is reassigned prematurely.)

Here’s the bad stuff for callers to keep in mind:

  • We decline to defer consideration of the database until after we address issues raised in ACA International; nor do we address in this Report and Order how a caller’s use of this database would impact its potential liability under the TCPA for calls to reassigned numbers.

  • Database Operation Costs. We believe that, over the long term, callers should pay for the database. Thus, the Administrator’s costs to operate the database following its establishment will be recovered through usage charges that the Administrator will collect from callers that choose to use the database

So the caller is going to have to pay to play here–each time they want to check a number they will be assessed a fee established by the administrator. Hmmm.

Oh, here’s a picture of how it will work:

fcc pic

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. Moreover, the Commission specifically determined to move ahead with the recycled number database before a ruling on the current TCPA Public Notice. 

So that brings us to the intriguing stuff:

  • We anticipate that use of the database will be a consideration when we address the reassigned numbers issues raised in that decision [the Public Notice]

Wow. Let that sink in.

The FCC is telegraphing that whatever it does with recycled numbers in the Public Notice, use of the recycled number database will play a role. Does that mean that the FCC intends to maintain the rule that a caller can rely on the consent of a former subscriber for a “reasonable time” and that the use of the database might inform what a reasonable timeframe means?

Most of us in TCPAland had hoped and expected the FCC to adopt the “expected recipient” definition of “called party.” But that definition would not incentivize use of the recycled number database because the consent needed by the caller would be the consent of the person it was trying to reach– database or no database. So one possible reading of the FCC’s Report and Order is that it plans to reject the expected recipient approach after all. Uh oh.

Then again the FCC has been famously unpredictable in recent years, careening from one order to the next. This isn’t the MCU folks. We’ve seen the Commission lean one way in one order and then swivel completely the other direction in the next creating continuity errors left and right–remember Broadnet?

In any event, the roll out of the recycled number database will be interesting to watch and we’ll keep you posted on developments as the develop.

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

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About this Author

Eric Troutman, Womble Dickinson, TCPA Litigation Attorney
Attorney

Eric is one of the country’s prominent class action defense attorneys and is nationally-recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance.  He has served as lead defense counsel in more than 50 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems.

Eric has built a national litigation practice based upon...

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