FCC Releases Draft Second Further Notice of Proposed Rulemaking on Reassigned Numbers Database

In anticipation of its March 22 Public Meeting, the FCC on March 1 released a draft of a Second Further Notice of Proposed Rulemaking addressing comments received on its earlier Notice of Inquiry on proposals for a database to identify reassigned numbers (FNPRM). The FNPRM was released alongside the FCC’s Public Meeting Agenda. The draft FNPRM primarily seeks comment on: (1) the specific information that callers would need from any reassigned number database; and (2) the best way to make that information available to callers. The draft will be considered for adoption by the full Commission at the meeting.

The FNPRM begins by “propos[ing] to ensure that one or more databases are available to provide callers with the comprehensive and timely information they need to avoid calling reassigned numbers.” It seeks comment on the information needed by callers who choose to use a reassigned numbers database; on how to ensure that the information is reported to a database; and the best approach to making that information available to callers.

The FNPRM also notes that the FCC “believe[s] that the Commission’s exclusive jurisdiction over North American Numbering Plan (NANP) numbering resources provides ample authority to adopt any requirements that recipients of NANP numbers report reassignment or other information about those numbers, including the mechanism through which such information must be reported.”

The items states an assumption that callers seeking to identify reassigned numbers already have three types of information: (1) the name of the consumer the caller wants to reach; (2) a telephone number associated with that consumer; and (3) a date on which the caller could be confident that the consumer was still associated with that number (e.g., the last date the caller made contact with the consumer at that number; the date the consumer last provided that number to the caller; or the date the caller obtained consent to call the consumer). To the extent that that assumption is faulty, the draft solicits public comment.

Next, the FCC seeks comment on the specifics of how a reassigned numbers database would work, including what information a caller would have to submit in order to query a database and what information would be produced in response. The FNPRM also proposes to provide callers with information about when numbers are disconnected but, citing comments by the Retail Industry Leaders Association, it notes that there are concerns regarding the possibility of temporary disconnections causing false positives. The FNPRM therefore seeks comment on whether the FCC should require service providers to distinguish between permanent disconnections and temporary ones.

The FNPRM also seeks comment on the timeliness of the reassigned number data, including the frequency with which the data should be reported to maximize callers’ ability to remove reassigned numbers from their calling lists before placing calls. Recommendations are sought about the best format for database information, as well as the details of caller access to the database. The FNPRM requests comment on any specific criteria for determining which entities are eligible for access to the database, and whether users should be required to certify the purpose for which they are accessing the system. In addition, the FNPRM seeks comment on how to costs for accessing the database should be developed and reviewed.

The FNPRM then asks about the specific circumstances under which a caller should be permitted to avail itself of any safe harbor the FCC might adopt, including whether the safe harbor would protect callers from liability from all reassigned number calls, only good-faith reassigned number calls, or reassigned-number calls only when the database’s information was untimely or inaccurate.

The FNPRM seeks comment on three distinct options for designing a database or range of databases. They are: (1) require service providers to report reassigned number information to a single, FCC-designated database; (2) require service providers to report such information to one or more commercial data aggregators; or (3) allow service providers to report such information to commercial data aggregators on a voluntary basis.

Finally, the FNPRM reviews the perceived advantages and disadvantages of each of these options, and seeks comment on whether it would be necessary to develop a completely new FCC-designated database or whether it would be possible to modify an existing numbering database, such as the Number Portability Administration Center (NPAC), to accommodate whatever data is identified through the rulemaking process as necessary.

The exact deadlines for comments on the FNPRM have not yet been set in this draft version, but the draft states that comments will be due 45 days after the FNPRM’s publication in the Federal Register, and reply comments will be due 75 days after publication. Drinker Biddle will continue to monitor and report on this reassigned number database proceeding as it progresses.