On December 13, 2018, the U.S. Federal Communications Commission (FCC) released new rules¹relating to the Telephone Consumer Protection Act (TCPA), in an effort to cut down on wrong number calls and texts by establishing a new disconnected number database. The rules also provide a new, albeit limited, safe harbor from TCPA claims for companies that make use of the database. While the new rules did not go as far as some industry participants had hoped, they are decidedly a step in the right direction and an indication that the FCC heard the concerns of companies that call and text consumers and that have been caught up in TCPA litigation because they called or sent texts to numbers for which they had obtained consent, but which, unbeknownst to the companies, had been reassigned to new uses.

Background

The TCPA, among other things, prohibits most calls to wireless numbers made using an "automatic telephone dialing system" or "artificial or prerecorded voice" without the "prior express consent of the called party."²A specific problem arose around wireless numbers that had been reassigned to new users. People who had new numbers were getting calls from organizations that had obtained consent from the previous users. Although the organizations had no knowledge of the reassignments and therefore continued calling the numbers expecting to reach the prior users, they would reach the new user instead. In a landscape with more than 35 million reassigned numbers every year, and no reliable means of determining whether a number still belongs to the person who provided consent, reassigned number calls have become a substantial problem.³Consumers with new wireless numbers have taken the position that they did not consent to these calls, and therefore they violate the TCPA. Courts have split over whether the "called party" is the party the callers are trying to reach, or the person who is the subscriber or regular user of the number at the time of the call. In response to petitions to the FCC for clarification of the meaning of "called party," the FCC, as part of an Omnibus TCPA Declaratory Ruling and Order in 2015 (the 2015 Order), sided with courts that interpreted "called party" as the actual subscriber or regular user at the time of the call, but adopted a "one free call" safe harbor to attempt try to learn whether the number had changed hands.⁴Numerous interested parties appealed this aspect of the 2015 Order, and the D.C. Circuit vacated it as arbitrary and capricious.⁵With last week's Order the FCC is taking a different approach.

New FCC Rules About Disconnected Numbers

Last week's Order is meant to make it easier for businesses that call or text consumers to avoid inadvertently calling or texting new users of reassigned numbers. In the words of Chairman Ajit Pai, "today, we adopt a solution that will reduce the number of mistaken calls to reassigned numbers."⁶Here are a few key aspects of the new rules:

1. Carriers must wait 45 days before they may reassign a permanently disconnected phone number. This changes the previous rule, which allowed certain numbers to be reassigned immediately, making it impossible to avoid calls to those numbers meant for the prior user.⁷
2. In at least 12 months, creation of a comprehensive database of permanently disconnected telephone numbers (i.e., numbers that are eligible for reassignment) and the date of disconnect.⁸
3. Carriers will need to supply lists of permanently disconnected numbers to the database administrator monthly, on the 15th of every month.⁹
4. Businesses will be able to subscribe to the database and check phone numbers they wish to call and the date consent was obtained to call the number to see if that number was permanently disconnected after consent was provided. These checks will be available by batch or through individual inquiries online.¹⁰
5. Queries will return either a "Yes", the number has been disconnected after the date of consent; "No" the number has not been disconnected; or "no data."¹¹
6. The rule covers wireless, wireline, and interconnected VoIP providers that obtain numbers from North American Numbering Plan Administrator (NANPA) and toll free numbers.¹²
7. The rule also creates a new safe harbor for those who make use of the database and receive a "No" response in error. The rules state:
   
   Safe Harbor. A person will not be liable for violating the prohibitions in paragraphs (a)(1), (a)(2), or (a)(3) by making a call to a number for which the person previously had obtained prior express consent of the called party as required in paragraphs (a)(1), (a)(2), or (a)(3) but at the time of the call, the number is not assigned to the subscriber to whom it was assigned at the time such prior express consent was obtained if the person, bearing the burden of proof and persuasion, demonstrates that:
   1. The person, based upon the most recent numbering information reported to the Administrator pursuant to paragraph (l), by querying the database operated by the Administrator and receiving a response of "no", has verified that the number has not been permanently disconnected since the date prior express consent was obtained as required in paragraphs (a)(1), (a)(2), or (a)(3); and
   2. The person's call to the number was the result of the database erroneously returning a response of "no" to the person's query consisting of the number for which prior express consent was obtained as required in paragraphs (a)(1), (a)(2), or (a)(3) and the date on which such prior express consent was obtained.¹³

Conclusion

The FCC's Order is welcome relief for businesses that frequently call or text consumers. While it will be at least a year before the disconnected numbers database is in place, once up and running, access to the database should provide a means for callers to avoid inadvertently contacting new users of reassigned numbers. In the meantime, businesses may wish to consider using one of the many commercial solutions available to help determine whether a phone number has changed hands.

For any questions regarding the TCPA, these new rules, or the safe harbor, please contact Tonia Klausner or any member of the firm's internet strategy and litigation practice.

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