FCC Adopts TCPA Changes that Include (Very Limited) Safe Harbor
On December 12, the Federal Communications Commission ("FCC" or "Commission") adopted an order that creates a reassigned number database to help callers avoid Telephone Consumer Protection Act ("TCPA") violations that can occur when telephone numbers get reassigned to new users. We covered some of the details in a previous CommLawBlog post when the FCC pre-released its order in draft form. Now that the final version of the order has been adopted, there's one major change to note: the Commission added a very limited (more on this below) safe harbor for callers that use the reassigned number database.
Most TCPA violations do not involve a reassigned number, so the safe harbor will not shield callers from liability for the majority of potential violations in any case, especially where consumers never consented to receive automated calls in the first place. But even when a reassigned number might be involved, the new safe harbor doesn't offer much additional protection. A caller will be excused from liability under the TCPA only if the caller can prove it used the database and relied upon erroneous results returned by the database. In other words, for the safe harbor to apply, the database has to be at fault and the caller has the burden to prove it.
Therefore, it will remain critical for a caller to maintain robust records of consents received from consumers, the date on which the consent was revoked or reconfirmed (if applicable), and (now) the dates and results of any reassigned number database queries.
All of this is intended to work by requiring carriers, through new reporting rules, to report the date on which a number assigned to one of its users is permanently disconnected. That date will be recorded in the reassigned number database. When a caller uses the database, the caller will input a date and a phone number, and the database will return a result of "yes", "no", or "no data," which have the following implications:
"Yes" means the number has been permanently disconnected since the date the caller entered;
"No" means the number hasn't been disconnected since that date;
"No Data" means the database does not have information for that number.
In other words, callers will be looking for a "No" response from the database, which will mean the number entered has not been permanently disconnected after the date entered by the caller.
While the Commission's order is somewhat ambiguous regarding which date a caller must use when querying the database, the rules promulgated indicate that a caller must verify that the number has not been disconnected "since the date prior express consent was obtained." By entering that date, the database should tell a caller whether the number called has ever been permanently disconnected after the caller received consent to make automated calls to that number. If the number has been disconnected, the caller would not be able to reasonably rely on the consent it believes it received. To take advantage of the safe harbor, callers will need to check the database on a monthly basis (the frequency with which the database will be updated).
In addition to the safe harbor, the FCC's order adopts another new requirement that should offer an extra layer of protection for callers. Numbers assigned to residential customers now must be "aged" (held unavailable for assignment to another user) for at least 45 days after disconnection. Previously, the Commission did not have a minimum aging period for disconnected numbers. Carriers were only prohibited from aging numbers longer than 90 days and could reassign a number to a new user very shortly after disconnection. With the new rule changes, carriers will be required to age numbers between 45 and 90 days. As a result, a caller should not reach any end users if it calls a number within 45 days of the previous user's disconnection. The Commission created the new aging requirement, in part, to ensure a number isn't assigned to a new user before the number would be updated in the reassigned number database. The 45-day aging period may also provide independent disconnection verification to a caller if the caller gets a disconnection triple tone while making a call during the aging period.
The database won't be up and running immediately. The FCC will need to name an administrator to operate the database, and because number reassignment reporting requirements are prospective only, the database will be more useful in the future (after it is populated with more data) than it is at the outset. That said, the reassigned number database does offer a new tool to help legitimate robocallers avoid some TCPA liability.
The reassigned number database will likely draw further attention as the selection of the database administrator and implementation of the database take place. For more information on the FCC's reassigned number database, updates on when the rule changes go into effect, and other TCPA issues, keep an eye on CommLawBlog.