The database is intended to enable callers, including businesses, to verify the status of numbers and thus prevent consumers with recycled numbers from receiving unwanted calls.
Callers—often businesses—face the inconvenience of not being able to reach the intended recipient when the recipient’s telephone number was disconnected and then reassigned to another telephone subscriber. The Federal Communications Commission has approved the creation of a recycled telephone number database that will be a resource for callers to discover whether U.S. telephone numbers have recently been recycled. The FCC also granted a safe harbor from Telephone Consumer Protection Act (TCPA) liability for inadvertent calls to recycled telephone numbers if the caller appropriately uses the database.
Approximately 35 million numbers are recycled each year, often resulting in both consumers receiving mistaken calls and callers being unable to reach the intended recipient. Recycled telephone numbers occur when a number is permanently disconnected from one telephone subscriber and reassigned to another. The FCC established a minimum time period of 45 days after permanent disconnection before a number is eligible to be recycled by a service provider.
Reporting Obligations by Telecommunication Providers
The FCC is imposing the new data reporting obligations on all carriers and voice providers, including wireless, wireline and interconnected VoIP providers that obtain numbering resources from the North American Numbering Plan Administrator. Reporting of disconnection data to the administrator will occur on the 15th day of each month.
Because of concerns about both data security and minimizing the reporting requirements by carriers and voice providers, the database will identify only the date of the most recent disconnection of a number. The FCC’s database should be available within the year.
Callers’ Voluntary Use of Database Prompts TCPA Safe Harbor
The database is intended to enable callers, including businesses, to verify the status of numbers and thus prevent consumers with recycled numbers from receiving unwanted calls. In an effort to minimize misuse of the database, the FCC requires that callers certify their purpose in accessing the database. The FCC permits callers to use third-party contractors as their agents to access the database.
The regulations contemplate that a fee will be assessed each time a caller checks a number on the database. The database will be required to offer callers both low-volume access through a website interface and high-volume access such as batch processing through standardized interfaces.
In recent years, the business community has been inundated with TCPA claims that arise from inadvertent calls to recycled numbers. The TCPA is a “strict liability” statute that imposes liability on the offender—regardless of intent—for sending unsolicited marketing faxes, automated dialer calls or short message service (SMS) text messages to a consumer without their consent. Under the TCPA, recipients of unsolicited phone call, text message and fax advertisements can seek damages from the sender and recover $500 for each violation.
To avail themselves of the safe harbor by using the database, a caller must demonstrate that they appropriately checked the most recent update of the database and that 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. However, callers bear the burden of proof and persuasion to show that they checked the database before making a call.
The FCC agreed 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.
In sum, the FCC concluded that it was in the public interest to establish this database. If the database works well, then it will also be in caller’s interest to properly use the database and thus minimize TCPA liability.
For Further Information
If you have any questions about this Alert, please contact Sheila Raftery Wiggins, any of the attorneys in our Telecommunications Practice Group, any of the attorneys in our Information Technologies and Telecom Practice Group, any of the attorneys in our Trial Practice Group or the attorney in the firm with whom you are regularly in contact.
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.