The Federal Communications Commission (FCC) approved rules to establish a single comprehensive centralized database of reassigned cell phone numbers, an important initial step in reducing class action liability for marketing researchers.
“The FCC database will start to address one of the most ridiculous problems in the 2015 Telephone Consumer Protection Act (TCPA) rules,” observed Howard Fienberg, VP Advocacy of the Insights Association. The association has supported the establishment of such a database for the last couple of years, in formal filings as well as in meetings with staff for FCC Chairman Ajit Pai and other commissioners.
The FCC settled on December 12 on the database as the best way for voice service providers to notify dialers and “aggregators” (telephone sample providers, in the case of the research industry) about numbers that have been reassigned, so that dialers can more easily avoid reaching the wrong customers and consumers. The rules also include a late addition: a safe harbor for accessors of the list against liability for errors in the database.
“While the database will help improve TCPA compliance,” Fienberg explained, “the FCC still hasn’t acted on the bigger picture necessity: TCPA reform.”
The 2015 TCPA rules, which make it exceptionally challenging to contact the 67.6% of American households that are only reachable on their cell phones to participate in legitimate research studies, set a one-call-before-liability standard, whereby a caller gets only one call to determine whether or not the number they are dialing, for which they thought they had prior express consent to call, has been reassigned to a new subscriber. As FCC Commissioner Michael O’Reilly stated at the time, the "exemption does not require consumers to accurately inform the caller that the number has been reassigned; ignores the worthlessness of uninformative voicemails; and even counts call attempts or informational texts where there was no response at all against the one call policy. Moreover, accidental misdials receive no protection whatsoever."
According to the FCC, an estimated 35 million numbers "are disconnected and made available for reassignment to new consumers each year." Some 100,000 wireless numbers are reassigned by telecommunications carriers every day. The best example of how this can go awry was cited by (then-Commissioner) Pai upon release of the 2015 rules: the Rubio's case, where a restaurant chain that thought it was sending texts to one of its employees got slapped with a $500,000 lawsuit by the new subscriber, who allowed 876 safety alerts to accumulate without making any attempt to notify the business that the cell phone number had been reassigned.
In this new Report and Order, the FCC requires voice service providers “to report the last date of permanent disconnection associated with their allocated and ported-in numbers to a reassigned numbers database administrator. A caller can then, if it chooses, use the database to determine whether a telephone number has been permanently disconnected after a date certain and therefore is no longer assigned to the party the caller wants to reach.” The rules will require a minimum aging period of 45 days before permanently disconnected telephone numbers can be reassigned, and require voice service providers to report information to the database monthly. The FCC agreed with the Insights Association that all carriers, including "wireless, wireline, and interconnected VoIP providers," will need to report to the database. The database will be managed by an independent third-party administrator, using a competitive bidding process. The FCC expects to solicit an administrator for the reassigned numbers database within the next year.
In response to a specific concern raised by the Insights Association after the FCC failed to allow third party sampling companies to access the Public Safety Answering Points (PSAP) emergency line do not call registry in 2012, the agency this time will allow telephone sample providers to access the database on behalf of their clients.
While the DC Circuit Court struck down much of the 2015 TCPA rules early this year, as the Insights Association and others involved in the case had requested, the FCC has yet to issue new regulations reforming the TCPA more broadly as demanded by the court decision, such as clarifying the definition of an autodialer.
“The marketing research and data analytics industry faces an intolerable number of costly TCPA class action litigation. The database won’t be launched overnight, so even lawsuits resulting from simple reassigned numbers will continue. It is past time for the FCC to deliver new rules, providing some certainty to dialers and cutting off the serial plaintiffs’ TCPA cash spigot,” concluded Fienberg.