Last month, the FCC released an Order directing the creation of a single comprehensive database for disconnected and reassigned telephone numbers. The FCC calls this an important step to curb the tide of unwanted telephone calls by addressing calls unknowingly made to reassigned phone numbers. These calls are a nuisance to those who receive them and, more importantly for our purposes, can expose legitimate business callers to litigation. The problem occurs when a caller tries to reach a consumer who has given the caller consent to call but, unbeknownst to the caller, has disconnected the number. That number is often reassigned to a new consumer, who then receives an unwanted call meant for the prior consumer and subjects the caller to potential liability for alleged violations of the Telephone Consumer Protection Act ("TCPA").
Once the database is created on the 15th of each month telephone service providers will be required to report the last date of permanent disconnection of phone numbers to a database administrator. The database can then be accessed by a caller to determine whether a number has been permanently disconnected and is no longer assigned to the person the caller is attempting to reach. This order establishes a safe harbor from Telephone Consumer Protection Act CPA liability for callers that properly use the database. To take advantage of the safe harbor, a caller will need to check the most recent update of the database and retain a record that shows the database reported that the number had not been permanently disconnected since the date the caller last 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 shields the caller from liability if the database returns an inaccurate result. Unfortunately, the FCC will not put the database in place until it hires an administrator. There is no deadline for the implementation of the database, but the FCC stated that it intends to start the bidding process for an administrator within the next twelve months.
Until the database is implemented, a caller is not completely without protection. Currently, there is a single-call safe harbor. This article will address some best practices to identify reassigned numbers and the single-call safe harbor.
The following best practices can facilitate the detection of phone number reassignments before a call is even placed:
- Using an interactive opt-out mechanism in all artificial or prerecorded voice calls so that recipients may easily report a reassigned or wrong number;
- Recording wrong number reports received by customer service representatives placing outbound calls;
- Having customer service agents record new phone numbers when receiving calls from customers;
- Periodically sending an email or mail request to the customer to update his or her contact information;
- Recognizing "triple-tones" that identify and record disconnected numbers;
- Establishing policies for determining whether a number has been reassigned if there has been no response to a "two- way" call after a period of attempting to contact a customer; and
- Enabling customers to update contact information by responding to any text message they receive, which may increase a customer's likelihood of reporting phone number changes and reduce the probability of a caller dialing a reassigned number.
Because these best practices do not ensure that a caller will learn of a reassigned number, callers who make calls without knowledge of a reassignment and with a reasonable basis to believe that they have the requisite consent or basis to make the call, may initiate one call after the reassignment as an additional opportunity to gain actual or constructive knowledge of the reassignment without liability, but must cease making any future calls to the new subscriber. If the one additional call does not yield actual knowledge of a reassignment, the caller is deemed to have constructive knowledge of the reassignment.
The single call includes any call that is initiated, including unanswered calls and calls answered by an answering machine, voicemail, or a person that does identify the identity of the subscriber or customary user. The single-call safe harbor includes any company affiliates, including subsidiaries. Two affiliated callers may not make one call each; they are only permitted one call in total. Additionally, the single-call safe harbor does not apply where a call is misdialed or the number is entered into a dialing system incorrectly. The caller bears the burden of demonstrating that it had a reasonable basis to believe that it could legally make the call, and that it did not have actual or constructive knowledge of the reassignment prior to making the one additional call.