TCPA Update: FCC's Reassigned Number Database Includes "Robust Safe Harbor"
As anticipated, the FCC today ordered the creation of a centralized database of reassigned phone numbers. The move is designed to address a longstanding (and growing) problem. Businesses attempting to reach their customers by phone (think credit card fraud alerts, prescription reminders) may be unaware that the customer obtained a new phone number, while the old number was reassigned to a new user. The FCC touts the database as a win-win: businesses will have a resource to ensure outbound calls more reliably reach their intended customers, and unsuspecting Americans will be subjected to fewer unwanted phone calls.
The FCC’s action comes on the heels of the D.C. Circuit Court of Appeals’ decision earlier this year which, among other things, vacated the FCC’s rule providing for a single-call safe harbor for businesses calling reassigned numbers. That rule, the court observed, failed to take into account whether the business’s one call to a stale number resulted in actual knowledge of the reassignment, and thus needlessly imposed TCPA liability for subsequent calls.
Importantly, FCC Commissioner Michael O’Rielly’s statement approving the database mentions the inclusion of a new “robust safe harbor”:
Additionally, I am grateful to [Chairman Pai’s] office for working with me to insert, at my request, a robust safe harbor in this item. The costs of creating, maintaining, and using the database will be significant, and we simply cannot justify it without providing a corresponding benefit to callers who pay to use it. In all reality, this database will always be imperfect, meaning, despite our action effectively requiring callers to use it, users will still need to be shielded from pointless lawsuits. This is a critical improvement to the item.
A copy of the final order should be available soon. UPDATE: The FCC’s Final Report and Order is here.