As currently interpreted, the Telephone Consumer Protection Act (TCPA) imposes strict liability — subject to an illusory one call “safe harbor” — for autodialed calls and texts sent to reassigned phone numbers. This interpretation, coupled with the lack of an authoritative reassigned number database, makes it impossible for businesses to send autodialed communications without opening the door to significant risk.
While serving as commissioners for the minority party in 2015, Federal Communications Commission (FCC) Chairman Pai and Commissioner O’Rielly maligned the current interpretation noting, among other things, that it demands the impossible. Given this history, it came as no surprise when the Commission, under Chairman’s Pai newfound leadership, solicited preliminary comments related to the creation of a reassigned numbers database.
The FCC took another step in that direction this month when it released a draft version of a Second Further Notice of Proposed Rulemaking (FNPRM), seeking additional comments on a reassigned numbers database. In particular, the FCC seeks comments on: (1) the information callers need from the database to make it efficient and effective; (2) the best way for service providers to contribute to the database; (3) whether the database should be the responsibility of the FCC or commercial aggregators; (4) whether service providers’ participation should be mandatory or voluntary; and (5) the practicability of adopting a safe harbor from TCPA liability for callers that choose to use the database.
The FCC plans to consider the FNPRM draft at its open meeting on March 22, 2018. If approved, notice will be published in the Federal Register. Interested parties will have 45 days after publication to submit comments and another 30 days to submit reply comments.
A reassigned numbers database will not resolve all TCPA issues, but it will significantly mitigate callers’ risk and prevent unwanted calls to consumers who are issued reassigned phone numbers. The implementation details and underlying mechanics will, however, play a critical role in determining the ultimate success of the database. To that end, we encourage interested parties to submit comments once the FNPRM is officially adopted.
* Chad Blackham contributed to this post.