On November 21, 2018, a proposed order was released by the Federal Communications Commission (FCC). This action followed after the release of a June 2017 notice of proposed rulemaking.
If the proposed order will be adopted by the FCC during its open meeting on December 12, 2018, then a single, extensive reassigned numbers database will be established. The information in this database will come from phone companies that collect North American Numbering Plan (NANP) numbers from the U.S. geographic region.
New FCC Rules That Need to Take Away Concerns from Callers
Many callers who need to contact reassigned phone numbers are concerned about violating the Telephone Consumer Protection Act (TCPA). These violations occur when they contact a new owner of the phone number who did not give any consent to receive calls. As a result of their concerns, some callers do no longer make phone calls to reassigned phone numbers.
Callers are in need of better TCPA liability protection measures. It needs to be easier for them to avoid making phone calls to those who have not given their consent to receive them. The FCC has therefore come up with a proposed set of rules that need to tackle this problem:
- Put into place a single, extensive database of reassigned numbers that makes it possible for callers to check if a phone number is permanently disconnected before a call is made. If that is the case, then a number becomes eligible for reassignment.
- Establish a minimum period of 45 days before it is possible to reassign a permanently disconnected phone number to a consumer.
- Every voice provider that receives North American Numbering Plan numbers, as well as the Toll-Free Numbering Administrator, is required to provide monthly reports about the inclusion of permanently disconnected phone numbers into the database.
- An independent third-party reassigned numbers database administrator needs to be selected via a competitive bidding procedure that will take place within the next 12 months.
- The third-party database administrator needs to be authorized to set up the database. Start-up costs need to be collected from providers, using a similar mechanism as with other numbering administration fees.
- The third-party database administrator needs to be authorized to fund operating costs via database usage charges. Also, the administrator needs to recollect start-up charges, and give them back to the providers via offsets to future number administration costs.
- Make sure that the database information is appropriately used, and that it is easily accessible for every certified user that utilizes the reassigned numbers database for a lawful reason.
- The North American Numbering Council (NANC) needs to be assigned to make recommendations on operational and technical issues that affect the database. This also includes usage fees.
Mobile Marketers Will Get Access to the Database
If the FCC adopts the proposed order, it will become possible for mobile marketers to get access to the database in exchange for a monthly fee that still needs to be determined.
Marketers will be able to enter a phone number from the contact list that they possess, and they can enter the last date that the phone number was contacted. The database will then respond with a “yes” if the number is already reassigned since the entered date, or with a “no” if it is still waiting to be reassigned.
The FCC order will require from all carriers that they report the numbers they have reassigned, and this needs to be done every month. This will mean that if the database is used by marketers, it can greatly help them to avoid contacting reassigned numbers. However, marketers do need to be aware that an important point is not addressed by the FCC’s order.
TCPA Liability
The important question remains about how a caller’s use of the numbers database impacts the potential TCPA liability when it comes to making phone calls to reassigned numbers.
In its proposed order, the FCC noted that, until a later date, it will forego making a decision on this issue:
“We decline to … address in this Report and Order how a caller’s use of this database would impact its potential liability under the TCPA for calls to reassigned numbers. The D.C. Circuit favorably noted the Commission’s efforts to address reassigned numbers in deciding ACA International, and we believe that establishing the database will satisfy our goal of minimizing unwanted calls to reassigned numbers regardless of how we resolve these other questions. We anticipate that use of the database will be a consideration when we address the reassigned numbers issues raised in that decision”
A Hot Topic Among Mobile Marketers
Since 2015, the reassigned numbers problem has been a hot topic for mobile marketers. In that year, the FCC made the decision to impose TCPA liability on brands that send out text messages or make auto-dialed calls to reassigned phone numbers.
However, in March 2018, the D.C. Court of Appeals reversed that 2015, FCC decision unanimously, because it did not deem it reasonable. As a result, there has been a lot of uncertainty about how the reassigned numbers issue is treated with regard to the TCPA.
Although the Commission’s order did not address if reassigned numbers database users receive any protection when reassigned phone numbers are still being contacted, it is a positive development that the FCC has finally decided to do something about this issue.
