December 17, 2018
The Federal Communications Commission (“FCC”) has released its anticipated report and order addressing calls placed to reassigned telephone numbers. Readers of this blog will recall that we had previously written about the FCC’s notice of proposed rulemaking concerning the planned creation of a reassigned numbers database and how it may affect compliance with the Telephone Consumer Protection Act (“TCPA”). The impact of this recently-released TCPA news will be determined in the coming year.
What are the key takeaways from this TCPA news?
The database is intended to both enable callers to verify the status of phone numbers and help prevent consumers with reassigned numbers from receiving unsolicited telephone calls. The FCC had long sought to establish a reassigned numbers database to enable callers to determine whether a telephone number (for which they had obtained consent to call) had been disconnected and reassigned to a person who had not provided consent. In order to ensure that the database is most effective while being minimally invasive to consumer privacy interests, the database is intended to include only the last date of permanent disconnection associated with a given phone number, with a minimum aging period of 45 days. Thereafter, callers would be able to query the database to determine whether a phone number had been reassigned since the date used as part of the query. The regulations contemplated that a fee will be assessed each time that a caller checks a number against the database.
The FCC’s Order creates a narrowly-tailored safe harbor for callers that inadvertently contact a call recipient that had not consented to be called at a number that had been reassigned to him/her. The reason that the safe harbor should be viewed as narrowly-tailored is that it will only shield a caller from TCPA liability in the event that the database returns an inaccurate result to the caller upon query. Moreover, in order to attain the benefit of this new safe harbor, a caller will need to be able to demonstrate that it appropriately checked the most recent update of the database and that the database reported a “No” when queried with either the date that the caller contacted the consumer or the last date on which the caller could be confident that the consumer could still be reached at that number.
The FCC has now taken steps to provide a measure of legal cover to telemarketers that will make appropriate use of the newly-established reassigned numbers database. However, it is apparent that the FCC did not go as far as those in the industry had anticipated. Interested parties had been hopeful that the FCC would use this opportunity to reconstitute (in a much more industry-friendly manner) the one-call safe harbor rule applicable to calls placed to reassigned numbers that had been struck down by the ACA International decision. Nevertheless, it is expected that the FCC will issue additional TCPA-related rulemakings in the near future that may prove more favorable to telemarketers. In the interim, it is imperative to work closely with experienced counsel to ensure telemarketing compliance in this rapidly-evolving regulatory climate.
If you are interested in learning more about this topic, need to review your telemarketing practices and procedures or if you are the subject of a TCPA lawsuit, please e-mail us at info@kleinmoynihan.com, or call us at (212) 246-0900.
The material contained herein is provided for information purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
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