FCC’s Action on Reassigned Numbers Database Punts Key Questions to Potential Ruling Stemming from ACA Litigation

Here’s what you need to know about the reassigned numbers database order before discussion at the FCC’s Dec. 12 meeting.

11/30/2018 1:00 PM

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FCC’s Action on Reassigned Numbers Database Punts Key Questions to Potential Ruling Stemming from ACA Litigation

ACA International's multifaceted approach to Telephone Consumer Protection Act reform is highlighted in the Federal Communications Commission’s action on a reassigned numbers database. After seeking comment several times on the possibility of creating a reassigned numbers database, the FCC put out an order establishing 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. However, many key questions on the reassigned numbers database will be answered in an expected additional ruling from the FCC which will deal with some of the key questions from ACA’s lawsuit challenging the 2015 Order.

Some Relevant Parts of the Reassigned Numbers Database Order for the ARM Industry:

  • It establishes 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

What did ACA say about this?

“ACA believes the concept of a reassigned numbers database that provides safe harbors to those acting responsibility could be beneficial to providing much needed relief from highly predatory and frivolous TCPA related class action litigation. However, we remain apprehensive that there are many outstanding questions about how it could be used effectively and in a cost efficient manner. The creation of a reassigned numbers database alone does not solve the many problems associated with onerous FCC interpretations of the TCPA, nor does it alone address the pertinent issues the D.C. Circuit Court issued a mandate of back to the FCC.”

  • Callers using the database would submit the number and a date that they are certain the number still was being used by the consumer. The database would return a “yes,” “no” or “no data” in response to the caller’s query whether the number had been permanently disconnected since that date. The FCC notes that, “First, we follow the practice of data minimization - the database will not contain information about subscribers other than the most recent date of permanent disconnections. Second, we limit the data available to any individual caller to a “yes,” “no,” or “no data” in response to a particular query. And third, we require callers to certify the purpose for which they are using the database.”

What did ACA say about this?

We agree that the commission should, at least, be able to provide an accurate yes or no when a caller checks the database. It will also be important for such information to be up to date and for the database to be able to provide callers with an understanding about how long the timeframes for how long a “yes” or “no” response should be considered accurate.

  • The report must include the number and the date of disconnection, but no other information. The definition of permanent disconnection excludes numbers that are temporarily disconnected for nonpayment or numbers that are ported to another carrier. The FCC notes, “We define “permanent disconnection” as occurring when a subscriber permanently has relinquished a number, or the provider permanently has reversed its assignment of the number to the subscriber such that the number has been disassociated with the subscriber for active service in the service provider’s records. Permanently disconnected numbers therefore do not include instances where the phone number is still associated with the subscriber, such as when a subscriber’s phone service has been disconnected temporarily for nonpayment of a bill or when a consumer ports a number to another provider. A ported number remains assigned to and associated with the same consumer even though a different provider serves the consumer after the number is ported.”

What did ACA say about this?

ACA in our comments suggested, “The FCC also should clarify how it will treat numbers that belong to the same consumer but have been switched to a new carrier. An example of how this could be problematic is if a caller has a phone number from Sprint, and it is ported to AT&T changing carriers, it could appear to be reassigned, but it is still the same number and person that may need information.”

  • 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.

What did ACA say about this?

ACA in our comments said, “We suggest that the database should be updated on a daily or at least weekly basis to make sure the information the FCC is providing to callers is accurate. We have concerns that because of the sheer immensity of such a database there could be many problems with accuracy and timeliness when using it to scrub for reassigned numbers. If the database were to in any way impede callers from contacting consumers in a timely and efficient manner, this consumer harm of not receiving information needed that in some instances may be exigent, would outweigh any benefit of not accidentally receiving a call intended for another recipient.”

  • The Order directs the North American Numbering Council to make recommendations on technical and operational issues affecting the database, including usage fees. The FCC states, “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.” Additionally the FCC notes, “We will refer to the Council questions of how the fee structure should be designed and the initial amount of fees.  Specifically, the Council, through its Oversight Working Group, is to consider technical issues surrounding how the Administrator can collect fees from callers that use the database.”

What did ACA say about this?

ACA in our comments wrote, “It is essential that if there are significant costs and compliance burdens for callers associated with using the database, it should be clear that use of the database is voluntary so that small businesses as well as businesses making a larger volume of calls are not unfairly burdened. Even with this clarification, we are concerned that if the database is created a de facto standard for being required to check it could be created through judicial decisions, which makes it even more important that the FCC ensure it is workable and either free or affordable on the front end for businesses of all sizes.”

What about a Safe Harbor?

  • In the Order the FCC states that it will address how a caller’s use of this database would impact its potential liability under the TCPA for calls to reassigned numbers in the Order concerning the D.C. Circuit Court ruling in ACA International. As such, punting the question of a safe harbor to its next action.

What did ACA say about this?

“The success of any reassigned number database hinges on the safe harbor that the FCC associates with use of it, particularly to protect legitimate businesses from predatory TCPA litigation. Frivolous TCPA related litigation continues to plague dozens of industries throughout the country.”

What’s Next from the FCC?

ACA is awaiting further action from the FCC including a potential Omnibus ruling in early 2019 addressing key issues from the ACA International et. al v. FCC lawsuit. ACA has urged the FCC to take the following actions at that time:

  • Provide an appropriately tailored interpretation of what is considered to be an ATDS, with the pertinent clarification that not all predictive dialers are an ATDS;
  • Clarify that capacity under the TCPA means present ability and explain that when human intervention is required for a call, the call is not made using an ATDS;
  • Provide a safe harbor for reassigned numbers that better aligns with its statutory directive and address key questions about what is considered a called party including interpreting it is an intended recipient;
  • Provide better parameters for how a consumer can revoke consent, which gives both consumers and businesses flexibility but also more certainty about what is considered reasonable including methods outlined in contractual agreements.

This analysis as well as additional resources and background on the FCC, TCPA and ACA's advocacy efforts are available on the FCC Resource Center webpage.


Follow ACA International on Twitter @ACAIntl and @acacollector, Facebook and request to join our LinkedIn group for news and event updates. ACA International members are welcome to submit news items for possible publication to comm@acainternational.org. Visit our publications page for news submission guidelines and subscriptions to ACA Daily, Collector magazine and Pulse.

Advertising is available for companies wishing to promote their products or services. Be sure to visit the ACA Events Calendar on the Education and Training page to view our listing of upcoming CORE Curriculum and Hot Topic seminars featuring critical educational opportunities for your company.


Subscribe to ACA Daily NEWSROOM

FCC’s Action on Reassigned Numbers Database Punts Key Questions to Potential Ruling Stemming from ACA Litigation

ACA International's multifaceted approach to Telephone Consumer Protection Act reform is highlighted in the Federal Communications Commission’s action on a reassigned numbers database. After seeking comment several times on the possibility of creating a reassigned numbers database, the FCC put out an order establishing 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. However, many key questions on the reassigned numbers database will be answered in an expected additional ruling from the FCC which will deal with some of the key questions from ACA’s lawsuit challenging the 2015 Order.

Some Relevant Parts of the Reassigned Numbers Database Order for the ARM Industry:

  • It establishes 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

What did ACA say about this?

“ACA believes the concept of a reassigned numbers database that provides safe harbors to those acting responsibility could be beneficial to providing much needed relief from highly predatory and frivolous TCPA related class action litigation. However, we remain apprehensive that there are many outstanding questions about how it could be used effectively and in a cost efficient manner. The creation of a reassigned numbers database alone does not solve the many problems associated with onerous FCC interpretations of the TCPA, nor does it alone address the pertinent issues the D.C. Circuit Court issued a mandate of back to the FCC.”

  • Callers using the database would submit the number and a date that they are certain the number still was being used by the consumer. The database would return a “yes,” “no” or “no data” in response to the caller’s query whether the number had been permanently disconnected since that date. The FCC notes that, “First, we follow the practice of data minimization - the database will not contain information about subscribers other than the most recent date of permanent disconnections. Second, we limit the data available to any individual caller to a “yes,” “no,” or “no data” in response to a particular query. And third, we require callers to certify the purpose for which they are using the database.”

What did ACA say about this?

We agree that the commission should, at least, be able to provide an accurate yes or no when a caller checks the database. It will also be important for such information to be up to date and for the database to be able to provide callers with an understanding about how long the timeframes for how long a “yes” or “no” response should be considered accurate.

  • The report must include the number and the date of disconnection, but no other information. The definition of permanent disconnection excludes numbers that are temporarily disconnected for nonpayment or numbers that are ported to another carrier. The FCC notes, “We define “permanent disconnection” as occurring when a subscriber permanently has relinquished a number, or the provider permanently has reversed its assignment of the number to the subscriber such that the number has been disassociated with the subscriber for active service in the service provider’s records. Permanently disconnected numbers therefore do not include instances where the phone number is still associated with the subscriber, such as when a subscriber’s phone service has been disconnected temporarily for nonpayment of a bill or when a consumer ports a number to another provider. A ported number remains assigned to and associated with the same consumer even though a different provider serves the consumer after the number is ported.”

What did ACA say about this?

ACA in our comments suggested, “The FCC also should clarify how it will treat numbers that belong to the same consumer but have been switched to a new carrier. An example of how this could be problematic is if a caller has a phone number from Sprint, and it is ported to AT&T changing carriers, it could appear to be reassigned, but it is still the same number and person that may need information.”

  • 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.

What did ACA say about this?

ACA in our comments said, “We suggest that the database should be updated on a daily or at least weekly basis to make sure the information the FCC is providing to callers is accurate. We have concerns that because of the sheer immensity of such a database there could be many problems with accuracy and timeliness when using it to scrub for reassigned numbers. If the database were to in any way impede callers from contacting consumers in a timely and efficient manner, this consumer harm of not receiving information needed that in some instances may be exigent, would outweigh any benefit of not accidentally receiving a call intended for another recipient.”

  • The Order directs the North American Numbering Council to make recommendations on technical and operational issues affecting the database, including usage fees. The FCC states, “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.” Additionally the FCC notes, “We will refer to the Council questions of how the fee structure should be designed and the initial amount of fees.  Specifically, the Council, through its Oversight Working Group, is to consider technical issues surrounding how the Administrator can collect fees from callers that use the database.”

What did ACA say about this?

ACA in our comments wrote, “It is essential that if there are significant costs and compliance burdens for callers associated with using the database, it should be clear that use of the database is voluntary so that small businesses as well as businesses making a larger volume of calls are not unfairly burdened. Even with this clarification, we are concerned that if the database is created a de facto standard for being required to check it could be created through judicial decisions, which makes it even more important that the FCC ensure it is workable and either free or affordable on the front end for businesses of all sizes.”

What about a Safe Harbor?

  • In the Order the FCC states that it will address how a caller’s use of this database would impact its potential liability under the TCPA for calls to reassigned numbers in the Order concerning the D.C. Circuit Court ruling in ACA International. As such, punting the question of a safe harbor to its next action.

What did ACA say about this?

“The success of any reassigned number database hinges on the safe harbor that the FCC associates with use of it, particularly to protect legitimate businesses from predatory TCPA litigation. Frivolous TCPA related litigation continues to plague dozens of industries throughout the country.”

What’s Next from the FCC?

ACA is awaiting further action from the FCC including a potential Omnibus ruling in early 2019 addressing key issues from the ACA International et. al v. FCC lawsuit. ACA has urged the FCC to take the following actions at that time:

  • Provide an appropriately tailored interpretation of what is considered to be an ATDS, with the pertinent clarification that not all predictive dialers are an ATDS;
  • Clarify that capacity under the TCPA means present ability and explain that when human intervention is required for a call, the call is not made using an ATDS;
  • Provide a safe harbor for reassigned numbers that better aligns with its statutory directive and address key questions about what is considered a called party including interpreting it is an intended recipient;
  • Provide better parameters for how a consumer can revoke consent, which gives both consumers and businesses flexibility but also more certainty about what is considered reasonable including methods outlined in contractual agreements.

This analysis as well as additional resources and background on the FCC, TCPA and ACA's advocacy efforts are available on the FCC Resource Center webpage.


Follow ACA International on Twitter @ACAIntl and @acacollector, Facebook and request to join our LinkedIn group for news and event updates. ACA International members are welcome to submit news items for possible publication to comm@acainternational.org. Visit our publications page for news submission guidelines and subscriptions to ACA Daily, Collector magazine and Pulse.

Advertising is available for companies wishing to promote their products or services. Be sure to visit the ACA Events Calendar on the Education and Training page to view our listing of upcoming CORE Curriculum and Hot Topic seminars featuring critical educational opportunities for your company.


Subscribe to ACA Daily NEWSROOM

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