Advertising Law Blog

The FCC (Federal Communications Commission) has adopted rules that will lead to the creation of a database comprised of cell phone numbers that have been relinquished and are available to be assigned to new subscribers. With 35 million numbers becoming available for reassignment every year, the database could—if implemented effectively-- go a long way towards solving a frustrating problem that has resulted in many businesses getting sued under the Telephone Consumer Protection Act (TCPA). Under the TCPA, prior express consent from the subscriber is required in order to send automated text messages, auto-dialed calls or calls using a recorded or artificial voice. However, once obtained, the consent from the prior subscriber does not transfer when the phone number is reassigned. Currently, businesses and other callers have no way to track if or when one of their contacts relinquishes their phone number, thus terminating the consent and creating enormous liability under the TCPA when the new subscriber is contacted. As readers of this blog know, the TCPA provides for $500 in damages per call ($1500 per call in cases of intentional violations) if no consent exists and permits class actions that multiply the potential losses in staggering fashion.

When the new rules go into effect (at a date uncertain), telephone service providers will be required to report to the database administrator the date of disconnection associated with the providers’ own allocated and ported-in numbers.  Unfortunately, the actual database is not exactly right around the corner: the FCC hopes to choose the administrator “in the next twelve months.”

According to the FCC, “the new rules establish a single, comprehensive database with information provided by phone companies that callers will be able to use to avoid calling reassigned numbers. Callers using the database will be able to find out if telephone numbers assigned to consumers who want their calls have been disconnected and made eligible for reassignment… To further encourage callers to use the database, the Commission is providing callers [with] a safe harbor from liability for any calls to reassigned numbers caused by database error.”

Currently, FCC regulations give callers only a one-call safe harbor, which ends even if the call does not result in actual knowledge that the dialed number has been reassigned. Once the database becomes operational, the safe harbor will apply if callers can demonstrate that they actually checked the most recent update of the database and the database reported “no” when queried if the number was relinquished. Callers bear the burden of proof and persuasion to show that they checked the database before making a call. The safe harbor would, if the burdens of proof and persuasions were carried, shield the caller from liability should the database return an inaccurate result.

TAKEAWAY: While the FCC’s agreement to establish a reassigned-numbers database is a recognition that there is a huge problem with TCPA enforcement, the database will not be a panacea, nor will it even provide immediate relief to businesses that send automated text messages, auto-dialed calls or calls using a recorded or artificial voice.