The Federal Communications Commission (‘FCC’) announced, on 12 December 2018, that it had established a reassigned telephone numbers database (‘the Database’), and released, on 13 December 2018, its report and order in relation to the same (‘the Order’). In particular, the FCC outlined that the Database would enable businesses to verify if numbers assigned to consumers who had consented to receiving calls have been disconnected and made eligible for reassignment. Furthermore, the FCC noted that callers of all sizes and levels of sophistication, such as a doctor’s office or a call centre, will be able to use the Database in a manner that is effective and efficient for their respective calling operations.
Debra R. Bernard, Partner at Perkins Coie LLP, told DataGuidance, “The establishment of the Database, if used by callers, should significantly reduce the number of calls made [to reassigned numbers]. The FCC noted that the concern about calling reassigned numbers had caused some callers to stop making calls. In his statement accompanying the Order, the FFC Chairman, Ajit Pai, used the example of a doctor deciding not to contact patients even though [these patients] had previously consented to being contacted, for fear of reaching a reassigned number and being exposed to significant liability under the Telephone Consumer Protection Act of 1991 (‘TCPA’). One of the goals of the Order is to address such concerns.”
The Order was a reaction to […] ACA International, et al. v. FCC and United States of America
The FCC noted that in order to encourage use of the Database, it would provide callers with a safe harbour from liability for any calls made to reassigned numbers caused by a database error. In addition, it stated that callers bear the burden of proof and persuasion to show that they checked the Database prior to making a call, in order to benefit from the safe harbour.
Bernard added, “It should be noted that the Order was a reaction to the U.S. Court of Appeals for the District of Columbia Circuit’s [decision] in ACA International, et al. v. FCC and United States of America, where the court found, in part, that the FCC’s allowance to callers of a single safe harbour call, i.e. that a caller had one ‘free’ call to learn of a number’s reassignment, [as established in] the Declaratory Ruling and Order In the Matter of Rules and Regulations Implementing the TCPA, was arbitrary and capricious and set aside the FCC’s treatment of reassigned numbers.”
BART VAN DER GEEST Privacy Analyst