FCC Reassigned Numbers Database Order Includes TCPA Liability Safe Harbor
The final rules issued following the FCC’s unanimous vote outline the need for a safe harbor for callers who choose to use the database.
12/18/2018 11:30 AM
The Federal Communications Commission is supporting a key provision of the final rules to include a limited TCPA liability safe harbor for the reassigned numbers database advocated for by ACA International. ACA is currently reviewing the safe harbor language and other aspects of the order and seeking feedback on how helpful it will be to communicate with consumers and combat frivolous TCPA litigation.
Without a safe harbor for liability under the Telephone Consumer Protection Act, the FCC says compliance with the law’s limit on calling reassigned numbers would be “almost impossible for small businesses,” according to the final rules on its development of a reassigned numbers database issued Dec. 13.
ACA International is pleased the FCC adopted the rules with the important safe harbor provision after reviewing comments on the draft report and order in the last year.
“ACA appreciates the recognition that a safe harbor is necessary as part of the reassigned numbers database, however we continue to seek more complete clarity surrounding onerous FCC and court interpretations of the TCPA, which have inhibited important communications to consumers ,” said Leah Dempsey, ACA International’s vice president and senior counsel of federal advocacy.
A majority of commenters on the draft rules, as well as the FCC, agreed on the importance of a safe harbor.
“This will ensure that a responsible caller who uses this database will not be held liable for accidentally making a call to a reassigned number because of a database error,” FCC Chairman Ajit Pai said following the vote Dec. 12.
The next step in creating the single, comprehensive database containing reassigned number information appears to be selecting a third-party administrator to operate the database through a competitive bidding process.
“That administrator will receive information about permanently disconnected numbers from reporting providers,” Pai said. “To ease the burden on small providers, we allow them an additional six months to begin reporting to the database administrator.”
Legislators urged the FCC to establish a reassigned numbers database. The U.S. Court of Appeals for the D.C. Circuit, which issued the ruling for the FCC to provide clarity on its interpretation of the TCPA in ACA International v. Federal Communications Commission, also supported the database.
The database is part of a multi-faceted approach to end unwanted robocalls to consumers, according to the FCC.
Multiple legislative proposals with the stated intent to mitigate robocall scams and end unwanted robocalls continue as the 115th Congress comes to a close. For example, the Telephone Robocall Abuse Criminal Enforcement and Deterrence (TRACED) Act, S. 3655, from U.S. Sens. John Thune, R-S.D., and Ed Markey, D-Mass., and Stopping Bad Robocalls Act,” H.R. 6026, introduced by U.S. Rep. Frank Pallone, D-N.J., and Markey are circulating on Capitol Hill.
H.R. 6026 requires the creation of a reassigned numbers database.
“I was pleased with the draft order Chairman Pai previously circulated and will review the adopted order once it is available,” Pallone said in a news release. “If done correctly, the database will help protect consumers with reassigned numbers from receiving unwanted robocalls. My bill also includes provisions that would codify Commissioner (Jessica) Rosenworcel’s demand for carriers to make robocall blocking tools available to their customers for free. Robocalls are a major nuisance for consumers and I will push for comprehensive legislation to protect consumers in the coming Congress.”
The bipartisan TRACED Act would require call authentication and blocking adoption, among other changes.
“We applaud the Commission for their continued efforts to protect the American public and promote public interest with a reassigned numbers database. Once implemented, this database will help legitimate callers avoid making unwanted calls and texts to Americans who have acquired the phone number of a previous user who had signed up for messages,” Thune and Markey said in a news release following the FCC’s vote.
What to Know About the Reassigned Numbers Database
According to the FCC, approximately 35 million numbers are disconnected and available for reassignment to new consumers on an annual basis. While the FCC proceeds to find a third-party administrator of the database, companies in the accounts receivable management industry should take note of the following components of the final rules issued last week:
Once the database becomes operational, callers who wish to avail themselves of the safe harbor must demonstrate that they appropriately checked the most recent update of the database and the database reported “No” when given either the date they contacted that consumer or the date on which the caller could be confident that the consumer could still be reached at that number. Callers bear the burden of proof and persuasion to show that they checked the database before making a call. The safe harbor would then shield the caller from liability should the database return an inaccurate result.
The final rules establish a minimum aging requirement of 45 days before a number may be reassigned to another consumer.
“We agree with commenters that setting a minimum aging period will help bring more uniformity to the reassignment process and, in and of itself, will reduce calls to reassigned numbers by ensuring that a permanently disconnected number is reassigned immediately and allowing time for callers to potentially receive notice through an intercept message that the phone number has been disconnected,” the FCC states in its final rules.
The maximum aging period is four months for toll-free numbers and 90 days for other numbers.
Database Information, Access and Use:
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. Commenters were largely in agreement that legitimate callers need only to determine whether a number has been disconnected or reassigned since a date entered by the caller. All legitimate callers should have the telephone number associated with the consumer they are attempting to reach and either the date they contacted that consumer or the date on which the caller could be confident that the consumer could still be reached at that number.
Overall, the FCC believes that this minimal amount of information strikes the correct balance between not overly burdening reporting providers while still offering callers the necessary functionality.
In addition, the database will be available only to callers who agree in writing that the caller (and any agent acting on behalf of the caller) will use the database solely to determine whether a number has been permanently disconnected since a date provided by the caller for the purpose of making lawful calls or sending lawful texts.
Recognizing that callers of all sizes and levels of sophistication may choose to use the database, we require the database to offer the ability to process low-volume queries (e.g., via a website interface), as well as to support high-volume queries (e.g., via batch process and/or standardized application programming interfaces or other protocols). This, for example, will enable both a small medical office that texts appointment reminders to patients and a business that operates a large outbound call center to each use the database in a manner that is effective and efficient for its respective calling operations.
Costs and Costs Recovery:
The FCC estimates the reassigned numbers database will come with an operational price tag of under $2 million per year. It also reports 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.
ACA International continues to review the final order on the reassigned numbers database and looks forward to learning more about the costs and resources needed to use it. Read more analysis of the reassigned numbers database proposal from ACA International’s Vice President and Senior Counsel of Federal Advocacy Leah Dempsey here.
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