December 11, 2018
The Federal Communications Commission is set to vote on creating a database for telemarketers to check before dialing.
The FCC’s planned Dec. 12 vote on the proposal comes amid uncertainty over the extent that businesses could be held accountable for inadvertently calling reassigned numbers. An appeals court earlier this year voided an FCC rule allowing companies to call one reassigned number before being held liable under the Telephone Consumer Protection Act. The law restricts the use of autodialers in telemarketing.
Telecom trade groups have been pushing the agency without success to include language giving them legal immunity for mistakenly calling a number that no longer belongs to the person they intended to reach.
The proposal would require carriers to report the date of number reassignments to the database administrator and require callers to pay for the database through usage fees. The FCC declined to say how the database would affect callers’ liability under the TCPA.
“If you’re going to rely on it and pay for it, you want to understand what that use means from a liability perspective,” Laura H. Phillips, a telecom attorney at Drinker Biddle in Washington, told Bloomberg Law.
Trade groups, including the NCTA-The Internet & Television Association and CTIA, urged the FCC to provide a liability shield for database users. Establishing a safe harbor would promote database use and help reduce the number of unwanted calls, the groups have told the commission.
A safe harbor also would ensure that callers aren’t held liable for relying on inaccurate data entries or other errors within the database, NCTA Vice President and Associate General Counsel Steve Morris told Bloomberg Law.
The group, whose members include Comcast Corp. and Charter Communications Corp., is asking for immunity for those who consult the database within 31 days before calling and have no knowledge that the number was reassigned.
The FCC said in its proposal that it will consider database use when it addresses the reassigned number concerns raised in ACA International v. FCC, in which the U.S. Court of Appeals for the District of Columbia Circuit set aside the FCC’s one-call policy as arbitrary. The agency subsequently sought comment on whether a liability shield for reassigned numbers is necessary.
Creating a database is “a step in the right direction” to help businesses stop calling reassigned numbers inadvertently, Michelle Cohen, a telemarketing attorney at Ifrah Law PLLC. In the absence of a safe harbor, Cohen said businesses should update their own databases to reduce the risk of liability under the TCPA.