All right TCPAland, its official. The FCC has adopted and implemented its new rules regarding the creation of a *cough* reassigned number *cough* database. The rule is designed to cut down on wrong number robocalls and is available here.
Here is TCPAland.com’s official top 10 take aways that you need to know about the database right now:
- “Reassigned numbers database” is a huge misnomer and it will not be a failsafe solution for detecting wrong or recycled numbers—only the dates of disconnect. The database is extremely lean in terms of the information that will be collected from carriers. (Indeed, information security is a major priority in this order.) The database will not include subscriber information. Indeed it will not include any information other than the date of a “permanent disconnect”—defined as the date “the provider permanently has reversed its assignment of the number to the subscriber such that the number has been disassociated with the subscriber”— and the number itself. So it cannot be used as a device to determine whether the number actually belongs to the party you are trying to reach. If a customer provides a wrong number, therefore, or an agent fat fingers an entry there is nothing to be done. The database will not help you and the safeharbor (see below) will not protect you. (From this day forward the database will be known as the “Permanent Disconnect Database” or “PDD” on TCPAland.com. Feel free to adopt our lingo alongside Bad Reyes and “opt-our evaders.”)
- The database will require significant leg work by callers in order to use it. Again, the data included in the database is extremely lean—just the number and the date of a permanent disconnect. In order to make use of the database, therefore, callers must supply to the Administrator the phone number being queried and a date. The date to be supplied by the caller is “either the date they contacted the customer or the date on which the caller could be confident (what does that mean?) that the consumer could still be reached at that number.” That means callers must maintain comprehensive lists of numbers with a rolling “last good” date for each number for use in a batch process to the database administrator. Businesses must develop processes that allow them to operationalize the “yes”, “no”, or “no data” record they receive from the Administrator. (Here “yes” is bad—it means that a number was permanent disconnected since the “last good” date.) Businesses must also develop risk assessments as to what “confidence” means in this context so they can build a “last good” database consistent with their risk appetites.
- Don’t keep dates of your last contact with consumers? You better start. The FCC does not parse words here: “All legitimate callers should have the telephone number associated with the consumer the y are attempting to reach and either the date they contacted that consumer or the date on which the caller could be confident that the consumer could still be reached at that number.” Yeah. So, probably better to be a “legitimate” caller.
- The database will be updated once a month and numbers cannot be reassigned but every 45 days. The database will be updated on the 15th of each month. The FCC has also required carriers to give at least 45 days after permanent disconnect to reassign the number. Assuming a caller scrubs on the 16th of the month and receive a “no”, the number could not possibly be reassigned until at least the 45th day after that scrub, assuming all goes according to plan. That should allow callers to avoid calling reassigned numbers with a month scrub but I feel like there’s a logic gap in here some place to consult an engineer before building your scrub process.
- A very limited safeharbor is provided. As I famously wrote a few days ago the original proposed Report and Order did not contain a safeharbor. But then the Press Release announcing the database dropped and I threw a party for Commissioner O’Reilly. But now that I’ve read the safeharbor I want my balloons and streamers back. The final Report and Order does provide a safeharbor but it is very limited. Here’s what it does: if the caller can prove it had express consent to call a number and received a “no” after supplying “either the date they contacted the customer or the date on which the caller could be confident that the consumer could still be reached at that number” then the safeharbor shields the caller from liability if the database returned an inaccurate result. There is no safeharbor, however, if a caller does not use the most recent update available. So the caller has to be scrubbing every 30 days in order to feel confident that the safeharbor will apply. The FCC also expressly refuses to extend the safeharbor to individuals that are currently using vendor solutions tracking recycled numbers or subscriber databases. So use the FCC’s official database or no safeharbor for you. Also I would urge you to consult an attorney regarding the actual language of the safeharbor before relying on it. There’s a trap there but I cannot share it publicly. (Believe me, you don’t want me to share it publicly.)
- The 15th of the month now has new importance for call center personnel: The Order requires carriers to supply data—again, just phone numbers and dates of permanent disconnects— to the Administrator once a month and on a specific date—the 15th of each month. Pretty obviously callers will want to set their scrubs to run on either the 15th or 16thof each month to get the most accurate information possible. Nonetheless, those running scrubs later in the month should be fine—again numbers can only be reassigned every 45 days—but the early bird scrubs the worm. You know what I mean.
- The database is designed to supplement and not supplant existing commercial solutions. Again, because the database is so limited it cannot—for instance—tell you whether or not a number has been reassigned or was a “wrong” number at the time it was supplied or input by an agent. So commercial databases purporting to validate subscribership may remain a useful part of your TCPA compliance regime.
- This thing will be cheap to use. The FCC estimates and expects that the charge will be “under one cent.” See par. 72. It also predicts nearly 2.5 billion queries per year. The Administrator will also be required to have a web portal available for single queries and also a batch process available for large call center operators.
- The Order really explains the breadth of the recycled number problem today. As the FCC explains matters: i) 37MM numbers are available for reassignment each year; ii) there is nocurrent minimum as to how long a carrier has to hold a number before reassigning it; iii) one commenter stated that numbers can be reassigned within two days of a disconnect (meaning that there is no real chance of preventing wrong number calls to recycled numbers in the current environment). As the FCC puts it: “a number used by one consumer today can be reassigned to another consumer almost immediately.” That’s pretty scary and weird if you think about it.
- It will be at least a year before the database is rolled out—but there’s no deadline. Although most carriers are immediately required to begin tracking and maintaining records regarding “permanent disconnects” an Administrator has not yet been chosen for the project of overseeing the database. The FCC’s Order states that it expects to start the bidding process “within the next twelve months.” Eesh. It could be a while folks. Indeed as Commissioner Rosenworcel wrote in her separate statement: “There is no deadline for its implementation, no date by which we can ensure its operation, and no time by which we can ensure consumers relief.” So, there you go.
Now I’m off to record our final Ramble podcast of the year! It’ll drop next Tuesday and yes, of course I will be breaking down the permanent disconnect database on the show.
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