Pending DC Circuit Ruling Seen as Driver for Robocall Database NOI
The notice of inquiry on the FCC's July agenda on creating a database of reassigned phone numbers (see 1706220050) comes as the FCC awaits a U.S. Court of Appeals for the D.C. Circuit ruling on ACA International v. FCC that could put the agency's reassigned numbers rules back in its lap anyway, experts said. The FCC may anticipate that the ACA challenge of the agency's 2015 Telephone Consumer Protection Act declaratory ruling (see 1507200058) could go against the agency, with it knowing it still needs to address the problem of legitimate telemarketers with consent to call ending up with TCPA violations for calling numbers that since have been reassigned, said a lawyer with telemarketing and TCPA experience.
Sign up for a free preview to unlock the rest of this article
Communications Daily is required reading for senior executives at top telecom corporations, law firms, lobbying organizations, associations and government agencies (including the FCC). Join them today!
The D.C. Circuit likely will issue an order in ACA that has mixed outcomes on the declaratory ruling, with the FCC looking particularly vulnerable on how it handles reassigned numbers now, the lawyer said, saying the approaches being shopped around in the NOI would likely get very little pushback.
The NOI "is truly testing the waters as to the realm of what is possible," Kelley Drye telecom lawyer Steven Augustino said. He also said the level of interest and participation in the NOI could depend on an ACA decision. Oral argument was in October.
For robocallers, reassigned numbers "is a very significant issue because there are so many reassignments," Augustino said. Given all the effort companies go through to obtain consent to call, "if that consent is no longer valid, they want to know that," he said. But since it's not clear what reassigned number information might be made available, it's unclear how useful any of the FCC-proposed solutions might be, he said.
The NOI asks numerous questions about how the FCC could require service providers to report number reassignment information and how robocallers can access that reassigned number information. The questions include what information voice service providers should report, and if a reporting requirement would apply to all voice service providers or just wireless ones, excluding wireline and VoIP. The FCC also asks for cost-benefit input, saying since voice providers already likely track disconnected and reassigned number information, they likely wouldn't be "greatly burdened" by reporting requirements.
The NOI also lays out four proposed means for data to be reported by voice providers and accessed by robocallers: an FCC-established database; voice service provider reporting reassigned number information to robocallers directly or to reassigned number data aggregators; voice service providers operating their own searchable database; or voice service providers making the data publicly available, such as through downloadable reports on their websites. The NOI doesn't indicate any preference by the agency.
A database or availability of that data would be a welcome option for outbound calling firms, said telco lawyer David Klein of Klein Moynihan, which specializes in telemarketing law and compliance. "Scrupulous telemarketers .... would welcome this with open arms" provided the database is maintained and regularly updated, he said. Klein also said he expects to see sizable support for the database idea, though a push is likely for the FCC to allow a grace period where wrongly calling a reassigned number isn't a TCPA violation.
The telemarketing industry has long talked about such a database against which it could brush up its customer lists, but the key question is what steps are taken to update and maintain the integrity of the data, said Christine Haerich, Professional Association for Customer Engagement senior vice president. She said PACE is formulating its thoughts about the reassigned numbers database NOI, but the trade group likely would participate in the proceeding.