On July 13, 2017, the FCC sought comment on how it should address the problem of autodialed or prerecorded calls to “reassigned numbers”—numbers that once were used by an individual from whom the caller obtained consent, but have since been recycled and given to a different individual. Reassigned numbers pose a risk of extensive TCPA liability even for those callers that try hard to do everything right, as there is no perfect system to accurately identify all reassigned numbers at the moment they are reassigned. It is little surprise, then, that dozens of commenters chose to weigh in on the FCC’s proposal to create a database for this purpose.
Of the thirty-two comments filed, many expressed frustration with the FCC’s past treatment of the reassigned numbers issue, including its controversial one-call compliance deadline, after which the caller is deemed to have constructive knowledge of a reassignment for purposes of TCPA liability. Most supported some FCC action on reassigned numbers, including an FCC-established database of reassigned numbers and a safe harbor for callers who scrub their calling lists against the database. Among them were the comments of the Retail Industry Leaders Association, which was represented by a cross-disciplinary team of Drinker Biddle attorneys and which received in-depth coverage in the trade press. Its support for a comprehensive reassigned numbers database, along with its strident advocacy for an associated safe harbor, was broadly echoed by many other commenters.
Other industry commenters included Comcast, The Internet Association, NCTA—The Internet and Television Association, Telcordia (d/b/a iconectiv), Neustar, the Student Loan Servicing Alliance, National Council of Higher Education Resources, and even the D.C. Public School system, among other entities.
National Consumer Law Center filed comments supporting the creation of a database, but opposing meaningful safe harbor relief for callers who use it. Companies providing private TCPA compliance solutions filed comments suggesting that their databases could be better leveraged. CTIA also generally opposed the creation of an FCC-established database.
The FCC’s Notice of Inquiry provides an opportunity for reply comments, currently due on September 26, 2017. After that, the FCC will evaluate the record and determine whether to proceed to the rulemaking phase, at which point interested parties would have another opportunity to weigh in. Drinker Biddle’s TCPA team is monitoring developments and will continue to update readers as events warrant.
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