On December 13, 2018, the Federal Communications Commission (FCC) released a Second Report and Order addressing issues with reassigned phone numbers and potential Telephone Consumer Protection Act (TCPA) liability, and establishing a safe harbor for business callers. Currently, there is no comprehensive database which allows businesses to determine whether a phone number has been reassigned. This has led to TCPA liability for businesses who unknowingly call a phone number they understand belongs to a particular customer or potential customer, but which has actually been reassigned to a different consumer.
To address this issue and minimize the occurrence of unwanted calls to reassigned numbers, the Second Report and Order directs the establishment of a database that will contain all disconnected and reassigned number information (including toll-free numbers) from each telephone service provider, updated by each provider on the 15th of each month. The purpose of this database is to enable business callers to determine and verify whether a telephone number has been disconnected, and is therefore eligible for reassignment, before calling that number. The Order also provides that disconnected numbers must be “aged” for a minimum of forty-five (45) days, but no more than ninety (90) days, before they are reassigned to another customer. This should ensure a business caller can rely on the database’s updated information, without running the risk of calling a number which has been reassigned, but not yet included in the updated database.
Using the reporting and number reassignment timing requirements for telephone service providers, the FCC also creates a safe harbor from TCPA liability for business callers, as long as they can show: (1) that they checked the database prior to making the phone call; and (2) the database showed the number had not been disconnected, letting the caller know the consumer could still be reached at that number. Thus, if the database is incorrect, the caller can still avail itself of the safe harbor as long as it shows it relied on the database prior to making the call.
The creation of this database and its safe harbor from TCPA liability is a welcome development, however, it is not yet in the works as the FCC still has to select an independent third-party administrator to manage the database. The FCC has indicated it will start the solicitation for a reassigned numbers database administrator “in the next twelve months.”
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