With speculation running rampant that Chairman Pai intends to bring a remand order from ACA International v. FCC in January 2019, the FCC took a related step to reduce misdirected calls. At the December Open Meeting, the FCC approved a Second Report and Order (“R&O”) to create a single, nationwide database for reporting number reassignments that will allow callers to verify whether a phone number was permanently disconnected before calling the number. The item is meant to reduce “wrong number” calls to mobile phones, i.e., where a caller has a legitimate reason for trying to reach a consumer but doesn’t realize that the number they have has been reassigned to someone else. The new rule would help eliminate a scenario where the new holder of the number receives an unwanted call and the prior holder never receives the call intended for them. The R&O is part of a broader effort by the FCC to address and stem the volume of unwanted phone calls in the United States.
The R&O will establish a database noting the date of the most recent “permanent disconnection” of a number. Permanent disconnection refers to when a subscriber permanently relinquishes a number, or the provider permanently reverses the assignment of the number to a particular subscriber and disassociates that subscriber with active service to that number. A number must have a permanent disconnection age of at least 45 days before it can be reassigned to another person. Thus, the information in the database is not supposed to contain temporary disconnections (such as for non-payment) or when a number is ported to another provider.
Parties would query the database with two pieces of information: the number to be checked and a date the party knows the subscriber last had the number. This latter date could be the date consent was obtained, the date the subscriber last accepted a call at the number, or some other date that the party contends is associated with the subscriber. Upon a query, the database will respond with a “yes,” “no,” or “no data” response indicating whether the number has been reassigned after that date. Parties will be able to query the database on an individual number basis or though bulk queries. Both a caller and “agents acting on behalf of a caller” may query the database.
Notably, in a late change, the FCC added a safe harbor for callers using the new database. This safe harbor provides protection from TCPA liability where “database errors” lead to an incorrect call to a consumer.
All voice providers that receive numbers from either the North American Numbering Plan or the Toll Free Numbering Administrator will be required to report information to the database on the 15th of each month. Covered providers will be required to start keeping permanent disconnection records as soon as the information collection is approved by OMB even if the database has not yet launched. The R&O directs for the FCC to use a competitive bidding process to identify a third party administrator to operate the database which will be responsible for collecting fees to fund the database’s operation. The Administrator’s costs to operate the database following its establishment will be recovered through usage charges that the Administrator will collect from callers that choose to use the database. The R&O also directs the North American Numbering Council to make recommendations on some technical and operational matters related to establishment of the database. The FCC has not specified exactly when the database will be operational.
Commissioner Rosenworcel voted in support of the item but also announced a desire for carriers make robocall blocking tools available to every consumer where technically feasible. In conjunction with her vote, she announced that her office had sent letters to major phone companies asking for information about any tools that the company offers today and associated costs.