The Telephone Consumer Protection Act (“TCPA”) prohibits placing certain telemarketing calls to consumers without obtaining their prior express written consent. The TCPA is a strict liability statute, so telemarketers placing calls generally do not get a pass for a mistake. But what happens when a telemarketer unwittingly contacts a consumer with a reassigned number? The Federal Communications Commission (“FCC”) has attempted to help telemarketers address this issue by creating the Reassigned Number Database.
How does the Reassigned Number Database (“RND”) change telemarketing?
Up to now, telemarketers ran a risk with every call or text message sent that the recipient was not the one who provided TCPA consent, but was rather the new owner of the applicable phone number. This is important because regardless of who the telemarketer intended to reach, if you place a call or send a text message to a phone number owned by a person who has not provided consent, then you may be liable for a TCPA violation. Stated differently, consent does not travel with the phone number when it gets reassigned.
To help clear up this confusion, the FCC created the RND and promulgated a rule laying out a safe harbor for telemarketers who use the resource. Coming online on November 1, 2021, the RND consists of “permanently disconnected” phone numbers, along with associated dates of disconnection. Cellular phone carriers must submit monthly updates (by the 15th of each month) of disconnected phone numbers to the RND. Telemarketers that use the RND (through a paid subscription) are then able to update their contact lists for disconnected and reassigned numbers after the carriers submit their monthly updates. Telemarketers can query the database to find out whether a particular consumer’s phone number has been “permanently disconnected” or otherwise reassigned to a different user.
The RND safe harbor rule applies only in certain circumstances. This is how it will work: First, the caller must have valid prior express written consent to call the number prior to its reassignment. Second, the caller must scrub the number against the most recent update of the RND and find that the number has not been reassigned or disconnected. Third, the caller must have relied on the RND’s mistaken result when making the call to the reassigned number. If a telemarketer meets all of these all of these requirements, the safe harbor rule would apply.
Why does the RND and safe harbor rule matter to your business?
The RND is a net positive for the telemarketing industry. It creates a clear path to avoid TCPA liability if a caller has consent, but the consenting individual has changed her or his phone number. The prior regime of “roll the dice and take your chances” created a minefield, with little chance of avoiding a TCPA violation. It did not matter who the intended recipient was; there were no exceptions for calling a reassigned number. While not a bulletproof solution, the RND and accompanying safe harbor rule should provide new and meaningful protections for telemarketers. It is also important to note that several private resources and databases exist that can supplement an RND subscription and provide further protection from reassigned number liability.
Even as the RND comes online, the polestar of TCPA compliance remains obtaining prior express written consent. Without that consent, the safe harbor rule does not apply. With consent, telemarketers can find some refuge from TCPA liability for calling a reassigned number.
Hire experienced telemarketing attorneys.
The launch of the RND is just the latest update to the always changing TCPA landscape. With new resources (the RND) and new rules (the safe harbor rule), businesses should update their telemarketing practices to ensure that they are as TCPA compliant as possible. Hiring experienced telemarketing attorneys to assist in that process can help save your business thousands or even tens of thousands of dollars in TCPA violation costs. The attorneys at Klein Moynihan Turco have years of experience in all things telemarketing law and can assist your business in staying on the right side of the law.
If you need assistance with updating your telemarketing policies and procedures, please email us at info@kleinmoynihan.com or call us at 212-246-0900.
The material contained herein is provided for informational purposes only and is not legal advice nor is it a substitute for seeking 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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