The Federal Communictions Commission (FCC) has refined their proposal for a database solution to the problem of calls to reassigned cell phone numbers, which subject recipients "of the reassigned number to annoyance and wastes the time and effort of the caller while potentially subjecting the caller to liability."
The Insights Association urged the FCC in comments on August 28, 2017 to establish a reassigned numbers database in conjunction with a safe harbor to protect legitimate businesses that access it.
As stated in the FCC's new Second Further Notice of Proposed Rulemaking (SFNPR), "Consumer groups and callers alike have asked for a solution to this problem. [Senators have as well.] We therefore propose to ensure that one or more databases are available to provide callers with the comprehensive and timely information they need to discover potential number reassignments before making a call. To that end, we seek further comment on, among other issues: (1) the specific information that callers need from a reassigned numbers database; and (2) the best way to make that information available to callers that want it. Making a reassigned numbers database available to callers that want it will benefit consumers by reducing unwanted calls intended for another consumer while helping callers avoid the costs of calling the wrong consumer, including potential" TCPA violations.
In the SNFPR, the FCC seeks our comments on a number of issues, including "(1) the information that callers who choose to use a reassigned numbers database need from such a database; (2) how to ensure that the information is reported to a database; and (3) the best approach to making that information available to callers." Further, the FCC wants to know if there should be a safe harbor and how it should operate.
As ever, we need to worry about how the FCC will ultimately handle this issue, like any other TCPA concern, because the agency still tends to mischaracterize the TCPA. For example, the SNFPR suggests that only in the case of "prerecored or automated voice calls (robocalls) to reassigned numbers" would "a good faith caller" end up "subject to liability for violations of the TCPA," when in fact that liability applies to any call using an automatic telephone dialing system, which the FCC's 2015 rules determined to be any phone technology short of a rotary dial phone. Those 2015 rules dictated a one-call-before-liability standard for such calls to reassigned numbers, 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.
About 100,000 telephone numbers are reassigned by mobile carriers every day, which adds up to a lot of liability.
In almost dismissing the SNFPR, FCC Commissioner Jessia Rosenworcel completely mischaracterizes the TCPA just like the example above, after complaining about the various illegal scam calls, saying: "Let’s get real. This is an effort to provide a legal green light for robocallers. As long as they consult this list before dialing, they will be free from liability under the Telephone Consumer Protection Act. So this protects robocallers."
Perhaps the biggest wrinkle comes from the recent DC Circuit Court decision on the TCPA that rejected the FCC's one-call-before-liability rule for calls to reassigned cell phone numbers. Will that, or should that, change how we handle the proposal for a reassigned numbers database?
What kind of information does a caller need from a reassigned number database?
The FCC expects that a caller "would possess, at minimum, the following information: (1) the name of the consumer the caller wants to reach; (2) a telephone number associated with that consumer; and (3) a date on which the caller could be confident that the consumer was still associated with that number (e.g., the last date the caller made contact with the consumer at that number; the date the consumer last provided that number to the caller; or the date the caller obtained consent to call the consumer). We seek comment on this view. What other information, if any, should we expect a legitimate caller to already possess before making a call?"
The FCC needs to know what "information a caller would need to submit to a reassigned numbers database and the information the caller seeks to generate from a search or query of the database. We believe that, at a minimum, the database should be able to indicate (e.g., by providing a “yes” or “no” response) whether a number has been reassigned since a date entered by the caller. That information could then be used by a legitimate caller to determine whether a number has been reassigned since the caller last had a reasonable expectation that a particular person could be reached at the number. We seek comment on this view. Do callers need any additional information beyond an indication of whether a particular number has been reassigned since a particular date? For example, do callers need the actual date on which the number was reassigned? If so, why? Do callers need the name of the individual currently associated with the number? Why or why not?"
Further, the FCC wants to know if the proposed database "should indicate whether a number has been reassigned," and if so, how the agency should "define when a number is reassigned for this purpose." The FCC envisions "the reassignment process" making up four steps: "A number currently in use is first disconnected, then aged, then made available for assignment, and finally assigned to a new subscriber. Determining the appropriate step in the reassignment process to cull information from service providers and pass it to callers requires considering the needs of callers as well as the administrative feasibility and cost of reporting to service providers."
The FCC proposes "to provide callers with information about when NANP numbers are disconnected. Because disconnection is a first step in the reassignment process, we believe that a database containing information on when a number has been disconnected will best allow callers to identify, at the earliest possible point, when a subscriber can no longer be reached at that number. With timely access to such data, callers will be best positioned to rid their calling lists of reassigned numbers before calling them." The FCC asks if access to "disconnection information would be preferable to new assignment information," since the disconnect data can more quickly allow a caller to update their lists to cull any respondents with reassigned numbers.
How comprehensive does the reassigned number database need to be?
The FCC asks if "callers need data from all types of voice service providers, including wireless, wireline, interconnected VoIP, and non-interconnected VoIP providers?28 Or would data from only certain types of providers be sufficient? Nearly all NOI commenters on this issue argue that an effective reassigned numbers solution must contain data from all service providers." Would a database without "data from all voice service providers" miss out on enough numbers to make it no more comprehensive than existing databases, and if so, why?
The agency also asks if "texters need reassignment information from text message providers to the extent that such providers do not also provide voice service? Are there significant occurrences of misdirected texts to reassigned numbers such that texters need this information?"
One of the more commonly-cited case of egregious TCPA litigation abuse is that of Rubio's restaurants, where an unscrupulous aquirer of a reassigned cell phone number accumulated 867 well-intentioned texts to a number that Rubio's thought belonged to one of their employees, before finally filing a massive lawsuit. Therefore, the Insights Association finds it laughable that the FCC should even have to ask this question.
How frequently; for how long?
Also, the agency seeks "comment on whether there is any reason to limit the reported reassignment information to a specific timeframe. For instance, if the most recent reassignment of a number occurred five or ten years ago, do callers need that information?" Of course, the relevant question spawned by this is: does prior express consent have an expiration date? While customer relationships could conceivably age quickly, researcher-respondent relationships can sometimes be long-lasting when a respondent is part of a panel or a longitudinal study. In fact, a respondent in such cases could conceivably go many months or years between participation in a study while still being expected to participate at some point in the future. We would oppose any FCC attempt to set an expiry limit on prior express consent.
In addition, the FCC wants to know "how timely the information contained in a reassigned numbers database must be. How frequently should the data be reported to maximize callers’ ability to remove reassigned numbers from their calling lists before placing calls?" Should such information be reported daily, in realtime, or in something approaching realtime? One of the commenters suggested that reporting should happen based on "how long a service provider ages its numbers, with those providers that age their numbers quickly (e.g., after two days) being required to report on a daily basis and those providers that age their numbers for at least 45 days being allowed to report on a monthly basis."
Format of Database Information
The FCC asks about "the format in which callers need the relevant data. For example, several NOI commenters argue that callers need this information in an easily accessible, usable, and consistent file format such as comma-separated values (CSV) or eXtensible Markup Language (XML) format. Do commenters agree or believe that alternative formats should be used, and if so, which formats? Does the Commission need to specify the format of such information by rule, or should we allow the database administrator to determine it?"
Accessing the database
The FCC anticipates "that callers may use the database directly or may wish to have entities that are not callers (such as data aggregators or entities that manage callers’ call lists) use the database. We seek comment on this view and any associated impacts on implementation."
This is a surprisingly crucial question, since the FCC ignored non-dialers when it wrote regulations for the emergency line (PSAP) do not call registry. If the FCC had ever actually launched the registry, telephone sample providers would not have been allowed to access it. The Insights Association will argue that we cannot allow the same thing to happen with the reassigned numbers database.
The FCC does seem to understand that the scope of parties that will want to access the database is broad, and is also seeking comment "on how to enforce these requirements to ensure database security and integrity."
The SNFPR grants that "all callers seeking to reduce unwanted calls to reassigned numbers—not merely callers seeking to ensure compliance with the TCPA—should be permitted to access a reassigned numbers database," a view with which the Insights Association agrees, but how should the FCC certify these uses? Should users have to register, and if so, "what information should they be required to provide" in order to set up an account? Further, what recourse should be available to any entity to whom access is denied?
Paying for the database
The FCC seeks comments on how the agency can minimize the cost of use to help encourage its use. It seems certain that accessing the database will cost our members something; how much is unclear. The FCC is likely to find some form of compensation to the communications service providers for contributing to the database, so the agency asks how to also keep the "cost recovery mechanism" at a "reasonable" level so that "access to the data will be affordable."
If it is a centralized FCC-designated database, should the FCC "establish a charge to database users to help cover the costs of establishing and maintaining the database? If so, how should the charge be set (e.g., per query, a flat fee or some other basis) and how should the billing and collection process work? To the extent that such fees do not cover all of the costs of establishing and maintaining the database, should we recover the remaining costs from reporting service providers?"
We have already argued, as the FCC explains, that "a single database approach [would] be more comprehensive and therefore, more effective, in addressing the reassigned numbers problem, than existing commercial solutions." Further, requiring communications service providers "to report to, and allowing eligible users to query from, a single, centralized database would likely be more efficient and cost-effective than an approach that involves multiple commercial data aggregators."
An angle into which the SNFPR does not deeply delve would be at least partially paying for the database with government funds, which could be problematic. The emergency lines (PSAP) do not call registry has never been launched -- according to the FCC, that is because their annual requests to Congress to fund it with a specific line item have been rebuffed. If the reassigned numbers database requires government funding, it could delay launch, potentially indefinitely.
Safe harbor for those that access the reassigned number database
The FCC could a"adopt a safe harbor from TCPA violations" for callers who "inadvertently make calls to reassigned numbers after checking a comprehensive reassigned numbers database." Some commenters suggested that the safe harbor should apply to any callers "using existing commercial solutions," meaning that the callers are making a demonstrable effort to avoid calling reassigned numbers.
If the FCC adopts a safe harbor, "how often would a caller need to check a reassigned numbers database" or commercially-available solution to qualify? Further, "what precisely would it protect a caller from? Liability from all reassigned-number calls? Liability from good-faith reassigned number calls? Liability from reassigned-number calls but only when the database’s information was either untimely or inaccurate?"
The Insights Association will argue (again) that a safe harbor is essential to making this work, even more so because the SFNPR suggests that the FCC may not require all telecommunications service providers to participate in the database, and that the frequency of their data contributions may vary. Even if the database were updated by every single provider in real time, there would still be a window for inadvertent calls to reassigned numbers when working from a call list that is even minutes old.
How to administer the database
The FCC wants to know whether the agency should: "(1) require service providers to report reassigned number information to a single, FCC-designated database; (2) require service providers to report such information to one or more commercial data aggregators; or (3) allow service providers to report such information to commercial data aggregators on a voluntary basis."
If the FCC were to take option 2, requiring telecom providers to report reassigned number information to commercial data aggregators, the FCC believes that telecom providers should only have to report such data "to those commercial data aggregators that meet specific eligibility or qualification criteria (e.g., certain baseline or operational standards)." Thus, the FCC wants to know how to define "qualifying data aggregator" and what criteria to use in qualifying them. "For example, should a data aggregator be required to: (1) establish internal controls to ensure that the data it receives will be used solely to respond to callers’ queries and not for any marketing or other commercial purpose; (2) maintain records of callers’ queries; (3) ensure data security and privacy; and (4) establish internal controls to accurately respond to such queries?" Further, the FCC asked what the process to become a "qualifying data aggregator" would be: "should a data aggregator be required to register with or seek approval from" the FCC? Should the agency keep "a list or registry" of qualified aggregators, and "how and when should it be updated?" Finally, must telecom providers "report reassigned number data to some or all qualifying data aggregators," or just to a single aggregator who "would in turn share the information with other qualifying data aggregators?"
Commercial data aggregators would presumably/hopefully include telephone sampling companies, so the FCC's questions should be viewed through that lens.
Under option 2, "how should callers be expected to learn about the multiple reassigned numbers databases that would result from this approach?"
The FCC makes a compelling case that using commercial data aggregators may be the most cost-effective approach, enabling the aggregators "to leverage their existing infrastructure and services and likely make reassigned numbers databases available more quickly and with less upfront expenditures than a single, FCC-designated database approach." However, the FCC concedes that "mandatory reporting to multiple data aggregators may be less efficient and cost-effective for both service providers and callers than a single database approach."
If the FCC were to take option 3, allowing telecom providers "to report reassigned number data to commercial data aggregators on a voluntary basis," the FCC admits that the approach would give telecom providers greater flexibility than a "mandatory approach," but "would nevertheless result in less comprehensive databases and would therefore be less effective in addressing the reassigned numbers problem than the alternatives discussed above." So the FCC asks if callers would end up paying "more or less for database access under a voluntary approach than under the approaches discussed above or under existing commercial solutions."
FCC Commissioner wondering if the FCC should even be worrying about a reassigned cell phone numbers database at all
Like with the emergency lines (PSAP) do not call registry, the Insights Association has treated the establishment of a reassigned numbers database as a good idea, regardless of TCPA implications, because researchers would want to avoid calling the wrong respondents.
However, FCC Commissioner Michael O'Reilly is not so sure. Although he supports the FCC's "efforts to reduce the number of inadvertent calls to consumers who receive reassigned numbers," he feels that the FCC needs "real data about the costs and benefits of creating a reassigned numbers database." When the FCC launched its earlier Notice of Inquiry, the Commissioner "noted that the true benefit of a database would be to provide legitimate callers a safe harbor from financially-crippling litigation simply because they unwittingly called a number that they thought belonged to a consenting customer," but now that the DC Circuit court recently rejected what O'reilly calls the 2015 TCPA rules' "illogical approach" to reassigned cell phone numbers, and clarified that the FCC "can decide that callers are not liable unless they have actual knowledge that the number changed hands, there may be less value or need in creating a new database, at least from a legal liability perspective."
Commissioner O'Reilly continues: "Responsible companies may still wish to use a database to keep their call lists up to date and to minimize stray calls. However, I wonder whether the benefit of a new database will exceed the costs of creating it and potentially requiring service providers to keep it or other databases current. Indeed, the idea that we might impose new burdens on a wide range of providers, including those we don’t normally regulate, is something that we must be very cautious to cabin to this proceeding. In my view, the most sensible option at this point, if we proceed at all, would be to encourage voluntary reporting to existing, commercially available databases with appropriate legal protections for those that decide to do so."
The Insights Association needs your help responding to the FCC as soon as possible
The SFNPRM hasn't been published not yet been published in the Federal Register, but comments we will need to file comments 45 days after that happens.
In order to respond to the FCC's SNFPR on a reassigned cell phone number database, we need to hear from both telephone research callers and sampling providers. Contact Howard Fienberg of the Insights Association as soon as you can.