FCC Reassigned Number Database Draft Would Leave TCPA Liability for Broader Proceeding

The FCC would "decline to defer consideration of the database until after" it addresses issues raised by the U.S. Court of Appeals for the D.C. Circuit's March ACA International v. FCC reversal of certain TCPA regulatory decisions, said the draft. But the order would defer consideration of "how a caller’s use of this database would impact its potential liability under the TCPA for calls to reassigned numbers." The D.C. Circuit "favorably noted the Commission’s efforts to address reassigned numbers in deciding ACA International, and we believe that establishing the database will satisfy our goal of minimizing unwanted calls to reassigned numbers regardless of how we resolve these other questions," the draft said. "We anticipate that use of the database will be a consideration when we address the reassigned numbers issues raised in that decision."

The FCC will decide on a possible industry safe harbor in the broader TCPA proceeding, said a commission official, noting different court interpretations of the key definition of autodialer systems, which face legal restrictions.

Consumer groups lauded the FCC draft action to create a database aimed at helping businesses avoid calling or texting consumers who haven't provided express consent to receive robocalls and text messages. The National Consumer Law Center "heartily" commended the FCC "for its creativity and leadership,” said Margot Saunders, senior counsel, in a Wednesday release. “An effectively created and managed database will significantly reduce the number of unwanted calls to consumers and will reduce liability under the [TCPA] for callers. Callers that use the reassigned number database will also reach their intended recipients much more successfully.”

Consumer Reports also welcomed the database proposal. "Consumers are overwhelmed with robocalls. Companies shouldn't have free rein to robocall consumers, just because a previous owner of their phone number agreed to receive calls,” said Maureen Mahoney, a CR policy analyst, in the same release. “This proposal recognizes that and would set up an effective and workable system to put a stop to this abuse." The database "would be a crucial piece of armor to protect consumers by requiring that the callers check first to make sure the person they’re trying to reach still has the number that’s being dialed,” said Susan Grant, Consumer Federation of America director-consumer protection and privacy.

The draft would require voice providers receiving North American Numbering Plan numbers and the Toll Free Numbering Administrator to report to the database monthly information on permanently disconnected numbers, and require at least 45 days before a permanently disconnected phone number can be reassigned. It would also use a competitive bidding process to pick an independent third-party administrator to manage the database. The administrator would be authorized "to establish the database by collecting start-up costs from providers using the same type of mechanism as other numbering administration costs," said a draft summary. It would also be authorized "to fund operating costs through database usage charges; and to recoup start-up costs and return them to providers through offsets to future number administration charges."