FCC Creates New TCPA Safe Harbor and Reassigned Phone Number Database

Dorsey’s team has been monitoring and reporting the latest happenings at the FCC, including the FCC’s draft order on the reassigned number database and its public comments during Monday’s Open Commission Meeting. If you didn’t receive a copy of our e-update, please reach out to any member of our team for a copy.

As expected, the FCC adopted yesterday its draft order directing the creation of a reassigned phone number database. It did so with one significant change to the draft order. At Commissioner O’Rielly’s request, the FCC also included a new TCPA safe harbor when it adopted its Second Report and Order.

To summarize the new safe harbor, the FCC granted callers a shield from TCPA liability for inadvertent calls to re-cycled phone numbers if they appropriately use the future reassigned phone number database.

So how exactly will it work? Quoting the Order, “callers that wish to avail themselves of the safe harbor must demonstrate that they appropriately checked the most recent update of the database and the database reported ‘No’ when given either the date they contacted that consumer or the date on which the caller could be confident that the consumer could still be reached at that number.”

“The safe harbor would then shield the caller from liability should the database return an inaccurate result.”

Importantly, “[c]allers bear the burden of proof and persuasion to show that they checked the database before making a call.”

The FCC additionally expressed agreement with consumer groups “that this safe harbor should not be broadly applied to all calls made by a caller who uses the database without regard to whether the caller reasonably relied on the database when making a particular call.”

Finally, the safe harbor does not extend to other commercial databases. According to the FCC, other commercial compliance solutions “collect different information over a less-than-comprehensive set of consumers[.]”

In addition to the safe harbor, the Order adopts the draft provisions the FCC published in November, including the requirement of a 45 day “aging period” before a number may be officially reassigned to a new subscriber. The aging period is designed to provide a period when a caller might learn of the disconnected/reassigned number.

Other highlights of the Order include information about the content of the database, which would contain the recent permanent disconnection data for each number allocated to voice providers, including toll free numbers, details regarding technical and operational issues, and a usage fee framework.

For those of us who are eager to give the database a test drive, we’ll need to be patient. The FCC states that it expects “to issue the solicitation for the new reassigned numbers database administrator in the next twelve months.” In other words, it could take up to a year before the FCC has identified an administrator for the database.

In the meantime, the FCC is poised to address issues raised by the D.C. Circuit Court of Appeal’s decision in ACA International, which include the definition of an automatic telephone dialing system, the permissible means of revocation of consent, and the definition of “called party.” In Commissioner O’Rielly’s Statement accompanying the Order, he offered his preliminary thoughts on the subject and he did not mince words:

“Today’s action is a positive development in reversing the previous FCC’s deeply-flawed 2015 TCPA Order. However, much more work remains, particularly on narrowing the prior Commission’s ludicrous definition of ‘autodialer,’ and eliminating the lawless revocation of consent rule. I am optimistic that our next steps will go a long way in reading the TCPA in a logical way and limiting wasteful and frivolous TCPA litigation that does nothing to protect consumers or stop illegal robocalls.”

We eagerly await the FCC’s next steps.

Scott Goldsmith

Scott Goldsmith

Scott brings the tenacity of a former prosecutor to his representation of clients in high-stakes commercial litigation and class action defense. Having tried over twenty cases through final jury verdict, and over one hundred fifty evidentiary hearings, Scott understands that effective advocacy requires creativity, composure, and thorough preparation.

Alexandra Krasovec

Alexandra Krasovec

Alex is a member of one of the nation’s most prominent and knowledgeable Telephone Consumer Protection Act (TCPA) defense teams. She has defended financial institutions and businesses of varying sizes against individual TCPA claims and nationwide class actions. Always staying on the forefront of TCPA developments, Alex works with this team of litigators to craft arguments and strategies aimed at curtailing the reach of the TCPA, both in court and through policy efforts before the Federal Communications Commission.

Divya Gupta

Divya Gupta

Divya Gupta is a commercial litigator Partner with one of the nation’s most knowledgeable Telephone Consumer Protection Act (TCPA) defense-teams. She is experienced in handling complex cases in state and federal courts, both in-house and as outside counsel. Divya is particularly skilled in defending banks, finance companies, and other lenders in both individual and class action TCPA cases. Divya also has experience advising major financial institutions on TCPA compliance matter and regarding the applicability of the TCPA to new and emerging products and services. Likewise, she is further adept in handling matters involving the Fair Credit Reporting Act (FCRA).

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