Wrong Number! D.C. Circuit Rules on Challenges to the FCC’s 2015 TCPA Order Part III: The Problem of Reassigned Phone Numbers

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Robocalls - everyone has strong feelings about them. In many cases robocalls, or automated calls and text messages, serve a useful function (and not just for telemarketing). But unfortunately, they are often unwanted and/or fraudulent, and they are the largest source of consumer complaints to the FCC. In response, the FCC in 2015 issued a Declaratory Ruling and Order ("2015 Order") intended to broaden the number of robocalls subject to the FCC's enforcement powers under the Telephone Consumer Protection Act (TCPA). (Read our past blog coverage on the FCC's 2015 Order if you want to brush up on the particulars.) On appeal, though, the D.C. Circuit recently rejected several aspects of the 2015 Order, including the FCC's controversially broad definition of "automatic telephone dialing system" (ATDS or autodialers) and its one-call safe harbor for calls made to numbers that have been reassigned to a new subscriber. On the other hand, the court upheld the FCC's 2015 holding that callers may revoke their consent to calls in any reasonable manner. The ATDS and safe harbor issues were remanded back to the FCC, which will likely address the issues in new rulemaking proceedings, including a proceeding opened on March 23rd seeking comments on ways to address the problem of unwanted calls to reassigned numbers.

In our four-part series, we break down the controversy over the definition of "autodialer," the means by which consumers can revoke their consent to be called, the issue of consent for calls to telephone numbers that have been reassigned to new subscribers, the FCC's new proceeding on using databases to minimize the impact of reassigned numbers, and what impact all of this might have on pending and future TCPA litigation.

Below is part three of our series. (Catch up and read part one and part two.)

III. Calls to Numbers That Have Been Reassigned to New Subscribers

Did you ever call a cell number only to discover that the number is no longer used by the person you intended to call, but rather has been reassigned to someone new? That's an inconvenience for you, but a potential TCPA violation for a telemarketer or other business trying to contact you through automated means. The problem, from the caller's perspective, is that there is no public wireless telephone number directory, and individuals may change their phone numbers without notifying the caller to whom it had given consent for calls. This can lead to callers making calls in good faith (i.e., intending to call Ms. X who had given consent to receive calls), but resulting in a TCPA violation (since the called number was reassigned to Mr. Y, who did not consent to receive such calls). Much litigation occurs as a result of this problem.

Again, with the goal of enhancing its TCPA enforcement, the FCC's 2015 Order held that "the TCPA requires the consent not of the intended recipient of a call, but of the current subscriber (or non-subscriber customary user of the phone)"." The Order clarified, however, that "callers who make calls without knowledge of reassignment and with a reasonable basis to believe that they have valid consent to make the call should be able to initiate one call after reassignment as an additional opportunity to gain actual or constructive knowledge of the reassignment and cease future calls to the new subscriber. If this one additional call does not yield actual knowledge of reassignment, we deem the caller to have constructive knowledge of such." Thus, in the case of reassignment of a wireless numbers, callers had a one-call "safe harbor" from being subject to liability for TCPA violations (even if that one call did not reveal that the number's subscriber had changed).

While recognizing that the Commission reasonably chose not to impose strict liability (i.e., violation on the first call even if the caller had reason to think that it was complying with the TCPA) in this context, the Court found the Commission's one-call safe harbor to be impermissibly arbitrary. Given that in other places in the 2015 Order, the Commission had allowed callers to "reasonably rely" on the consent a subscriber gives to call his number, the Court did not accept that such reasonable reliance is properly limited to only one call when the consenting party's number has been reassigned, especially since that one call may give no indication of the reassignment. The Court remanded the entire issue of reassigned numbers back to the FCC, and it invited the FCC to find a technological solution.

Stay tuned for the final part in our series, where we'll discuss the FCC's next steps and as well as how all of these changes will possibly impact TCPA litigation. If you have questions about TCPA compliance, please call us at (703) 812-0400 or visit us at www.fhhlaw.com.