In case you missed it as you wrapped up the end of the year, on December 12, 2018, the Federal Communications Commission “[took] another important action to curb the tide of unwanted telephone calls by addressing calls to reassigned phone numbers” when it officially adopted the long-awaited rule regarding the establishment of a “single, comprehensive” reassigned numbers database. The database will be a single, centralized database administered by a third-party administrator, which will be selected through a competitive bidding process. The FCC has set no deadline for the database’s implementation but it will not be in place until the administrator is selected. That process is set to begin within the next twelve months. The FCC ruling eschewed various provider reporting requirements as well as rules for callers.
First, as it relates to providers, the new database requires providers to report the last date of permanent disconnection for each phone number. Permanent disconnections do not include temporary disconnections due to customer nonpayment or when the number is ported to another provider, but do include toll-free numbers. Providers must also report such disconnections on the 15th of each month. These requirements are not retroactive, so only new data will be input into the system. Small providers, having 100,000 or fewer subscribers, also have an additional six-month grace period to begin reporting. Small providers account for less than 5 percent of all subscribers. Additionally, the FCC is rolling out a minimum 45-day waiting period before a number can be reassigned. This is to account for the monthly reporting requirement and an additional two-week window.
Second, the FCC established rules and procedures for callers. Callers will be able to query the database with a phone number and a date. The database will then produce either a “Yes,” a “No” or a “No Data” response, indicating whether the phone number has been disconnected since that date. However, the database will not include any additional information, including carrier information, or any information about the individual(s) to whom the number had been assigned. Smaller-volume callers will be able to run low-volume, internet-based queries. For large-volume callers, there will also be functionality for batch or program interfaces.
The new FCC reassigned numbers database maintains similarities to the Do-Not-Call Registry. For both, callers will have to pay for the database. Further, each user must certify in writing that it is utilizing the database solely for the purpose of making lawful calls, much like they do for the DNC Registry now. Additionally, third-party contractors may access and use the database as agents for their client callers. Further, the FCC stated that it may merge this database with the DNC Registry for efficiency.
Finally, the FCC’s ruling provides a safe harbor for callers that reasonably rely on the database. To invoke the safe harbor, the caller has the burden of proving that it checked the database and the database indicated “No.” The FCC’s guidance is strict on this point. The FCC stated that it will narrowly construe the safe harbor to only those good-faith callers that had actually used and reasonably relied on the database in making their calls.
Why it matters: This announcement from the FCC addresses a significant compliance challenge under the Telephone Consumer Protection Act and will likely be welcomed by the business community. Businesses currently face the risk of violating the TCPA by placing calls with an autodialer to reassigned numbers, despite having received prior express consent from the original number holder. With a single, comprehensive database, businesses can confirm whether a recipient’s number has become eligible for reassignment, which would demonstrate that the recipient who consented to receive calls no longer holds that number and that prior express consent is no longer valid. The FCC’s order importantly establishes a safe harbor from liability for callers that checked the database and received an incorrect result. The caller bears the burden of proof to establish its coverage under the safe harbor. While the database will be embraced by businesses, it won’t be up and running anytime soon, as the FCC has set no deadlines for implementation and stated only that it intends to start the bidding process for an administrator within the next year. Furthermore, the extent to which just the database will actually limit TCPA liability is still an open question.