As I recently wrote, the Federal Communications Commission provided companies a unique opportunity to reduce their TCPA compliance risk when it asked for input and potential solutions to address robocalls and text messages sent to reassigned numbers. In 2015, the FCC adopted a one-call “safe harbor” for calls made to reassigned numbers while simultaneously acknowledging that existing technologies lacked a comprehensive solution to avoid liability because number reassignments are not uniformly tracked or reported.  In its Notice of Inquiry (“NOI”), the Commission asks a series of questions about how it can help tackle this problem.

While many of the questions in the Commission’s NOI deserve careful analysis and warrant input from industry players, one particular aspect of the NOI deserves special consideration because it appears the FCC does not fully understand the magnitude of the issue. More specifically, as shown below, the Commission asks whether any reporting requirements for reassigned numbers should apply only to wireless carriers or whether they should also extend to VoIP carriers.

The Commission presents the discussion this way:

We seek comment on whether any reporting requirement should apply to all voice service providers; or, whether it should it apply only to wireless providers, thus excluding VoIP and wireline. We note that the TCPA provides greater and unique protections to wireless consumers. Specifically, the TCPA and the Commission’s rules require prior express consent for autodialed and prerecorded calls to wireless numbers, while requiring consent only for prerecorded telemarketing calls to residential numbers.

NOI at ¶ 12.

The Commission’s discussion is imprecise in a way that is both surprising and potentially troubling as it embarks on a much-needed effort to curb unwanted calls and wasteful TCPA litigation. The statement that “the TCPA provides greater and unique protections to wireless consumers” masks a more complex and challenging reality.  

A careful review of the TCPA and its implementing rules reveals that the “greater and unique” or heightened consent requirements applicable to “wireless” numbers actually apply to calls or text messages to any “paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call.See 47 C.F.R. § 227(b)(1); 47 C.F.R. § 64.1200(a)(1) – (3). The Commission’s NOI ignores several important clauses of the TCPA when it defines heightened consent requirements (i.e. prior express consent) to apply only to “wireless consumers.” The heightened consent requirement described here extends to all (ATDS, prerecorded or artificial voice) calls made to any number in which a consumer incurs a charge for the call.

As I discussed in another recent blog piece, an examination of case law reveals that “VoIP services” may fit into the category of services subject to the heightened consent requirements. This is because, at least for some VoIP services, the subscriber may incur a charge when they receive a call on their VoIP service. Additionally, certain VoIP services allow consumers to automatically forward incoming calls to their mobile phones, where they may also incur charges. In total, this means that any call made to a VoIP service has the potential, under the right circumstances, to require a consumer’s heightened consent before autodialed calls and text messages may be initiated.  

Unless and until the Commission clarifies the TCPA’s treatment of VoIP services, businesses have to operate under the reality that VoIP numbers may be subject to the heightened consent requirements—the same requirements applicable to wireless numbers.

As a result, I predict this will emerge as a key issue in the how-to-report-reassigned-numbers debate. If your company makes robocalls or sends commercial text messages, I recommend you weigh in now: urge the FCC to extend any reporting requirements to VoIP service providers to create a comprehensive solution. Waiting to act creates the potential that the Commission addresses only part of the flaws in its current one-call safe harbor. Such a strategy, or lack thereof, would expose countless companies to unavoidable TCPA liability when placing calls to reassigned VoIP phone numbers.

As a reminder, opening comments in response to the NOI are due todayAugust 28, 2017, with reply comments following on September 26, 2017. Any company—no matter how big or small—impacted directly or indirectly by the treatment of reassigned numbers should use this opportunity to help the FCC find practical solutions. As Commissioner Michael O’Rielly previously said, efforts to implement commonsense reforms will “be met with hysterical claims about the harms that will come to consumers,” making it critical that “legitimate companies and associations across all parts of the economy [ ] work together to show the steps they are already taking to avoid unwanted calls and highlight the specific benefits of being able to contact consumers.”

 Contact David Carter to learn more about how we can assist you in sharing your opinion on this important issue with the FCC.

About The Author

Meet David, our cultivator, dreamer, and norm disrupter. He advocates effortlessly in and out of the courtroom, leveraging his wealth of experience along the way. Constantly carving new paths, you can find David guiding his clients’ deals and big-picture strategies. The sky’s the limit.