As we previously reported, at the FCC’s December 12, 2018 Open Meeting, the Commission unanimously voted in favor of establishing a reassigned numbers database. And while the original draft order establishing the database declined to address the implementation of a safe harbor provision, thanks to the demands of two FCC Commissioners, the final draft of the order includes an important safe harbor provision, which will protect callers from TCPA liability in the event they use the new database and accidentally call a reassigned number due to database error.
Indeed, the issue of reassigned numbers has been a hot button topic for mobile marketers since 2015, when the FCC decided to impose liability on companies sending autodialed calls or text messages to a number that had been reassigned to a new user. However, that part of the FCC’s 2015 decision was unanimously reversed by the D.C. Circuit Court of Appeals in March 2018, whereby it concluded that the FCC’s actions were not reasonable. Thus, for months now, the issue of how reassigned numbers would be treated for purposes of the TCPA was left very much up in the air.
In late November, the FCC proposed an order establishing a reassigned number database. And while this order quelled many of the fears callers had regarding calls to reassigned numbers, it appeared that issues would still remain, as the FCC had declined to address whether callers who used the reassigned numbers database would receive protection from TCPA liability in the event a reassigned number was still reached. Thankfully, though, we can now report that this issue has been resolved thanks to the quick actions of Commissioners Michael O’Rielly and Brendan Carr.
In their remarks at the December 12 Open Meeting, Commissioners O’Rielly and Carr both emphasized that the reassigned numbers database proposal should include a safe harbor provision for those callers who use the database. As Commissioner O’Rielly explained:
The costs of creating, maintaining, and using the database will be significant, and we simply cannot justify it without providing a corresponding benefit to callers who pay to use it. In all reality, this database will always be imperfect, meaning, despite our action effectively requiring callers to use it, users will still need to be shielded from pointless lawsuits.
Commissioner Carr echoed Commissioner O’Rielly’s concerns, noting that, “[t]o ensure that businesses have the incentive to use that database, I and others ask that we include a safe harbor provision in the proposal.” When the final order was released on December 13, it appeared that the Commissioners requests were answered.
Beyond establishing a single, comprehensive reassigned number database that will enable callers to verify whether a telephone number has been permanently disconnected, the final order creates a safe harbor provision that will protect callers from TCPA liability, provided the caller can prove:
- it had consent to call the number;
- it used the most recent monthly update of the database; and
- the caller provides the database with “either the date they contacted the customer or the date on which the caller could be confident that the consumer could still be reached at that number,” and the database provided the caller with a query result indicating the number entered had not been permanently disconnected on that date.
Certainly, this safe harbor should be a cause of celebration. However, the safe harbor created is not ideal, as any callers using it will need to keep extensive records regarding customer consent and the date customers were last contacted at the relevant number in order to meet their burden of proof. Moreover, the safe harbor only applies to callers who use the FCC-designated database, meaning that those callers who are using currently available databases and those provided by the commercial sector will not be able to take advantage of the protections established.
The complete final order released by the Commission can be accessed here. And if you would like to learn more about the intricacies of the database and a summary of the order’s key provisions, we recommend you read our other blog post about the database.
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