United States: TCPA Update: FCC Announces The Launch Of Reassigned Number Database (and Accompanying Safe Harbor)

On November 1, 2021, the Federal Communications Commission (FCC) announced the launch of the Reassigned Numbers Database (RND). This centralized database is an important development for businesses across industries that are engaged in calling and/or text messaging activities directly or through third-party vendors. It should help companies ensure they are reaching the intended recipients of their communications. In addition, calls and text messages to reassigned telephone numbers have given rise to significant TCPA litigation, aggregate damages exposure, and settlements. There is now an authoritative method by which businesses can mitigate that risk and avail themselves of a liability safe harbor.

The FCC has explained that the RND is "designed to prevent a consumer from getting unwanted calls intended for someone who previously held their phone number. Callers can use the database to determine whether a telephone number may have been reassigned so they can avoid calling consumers who do not want to receive the calls." RND. And importantly, the FCC has accounted for reassigned number liability by incorporating a safe harbor for businesses that properly use the RND but nevertheless call or text a reassigned number. While it is not mandatory to use the RND, businesses would be well-advised to consider registering or requiring their third-party vendors to do so.

The RND was first established by the FCC in December 13, 2018, with the contract awarded to SomosGov. In re Advanced Methods to Target and Eliminate Unlawful Robocalls, Second Report and Order, CG Docket No. 17-59, FCC 18-177 (Dec. 13, 2018). The FCC reported that work began on the database in December 2020. At the time of the RND launch on November 1, 2021, it touches on more than 152 million telephone numbers with "this number will continue to grow over time." RND Launch (Nov. 1, 2021). The FCC has required voice service providers to report permanently disconnected phone numbers for inclusion in the RND. As of October 15, 2021, all providers are included in this mandatory reporting. Here is some information about the structure and mechanics of the RND.

• The database functions as a query-based system available through www.reassigned.us. (It is not a download like the National Do-Not-Call Registry.)
• There are six subscription levels (ranging from extra small to jumbo) with tiered pricing for subscriptions and usage, with plans ranging in duration from one month to six months. The FCC has reported that they expect to offer an annual subscription in the future.
• Registrants to the RND fall in one of two categories: "business" or "agent." Pricing is the same for both categories.
• Businesses can register and set up multiple vendors as additional users.
• Agent registrants must provide authorization letters from their business customers.
• Registrants can query individual phone numbers (up to 50) or through a batch process (up to 250,000) with the corresponding dates of consent (either when the consent was first obtained from a consumer or a date on which the registrant could be "reasonably certain the consumer could still be reached at that number.").
• The RND query will address the following question: Has this telephone number been permanently disconnected after the date of consent? The response from the RND will be either yes, no, or no data.
• In terms of timing, each carrier must report its permanent disconnections by the 15th of each month and the RND will be updated by the 17th of each month (8 am ET). The database will be deemed current for a one-month period.

RND Launch; Consumer and Governmental Affairs Bureau Announces Interim Usage Charges for the Reassigned Numbers Database, CG Docket No. 17-59, DA 21-1240, 86 Fed. Reg. 61,077 (Nov. 5, 2021); RND.

To be shielded from TCPA liability for calls or texts to reassigned numbers under the accompanying safe harbor, a caller will need to show that it: (1) had consent from the intended recipient of that communication; (2) queried the up-to-date database before calling or texting the number; and (3) did not receive a report from the database that the number was permanently disconnected after the date of consent. RND.

Businesses should consider registering for the RND or engaging with their third-party vendors to confirm their registration and to address corresponding indemnification issues.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.