WASHINGTON – Sen. Edward J. Markey (D-Mass.), author of the Telephone Consumer Protection Act of 1991, and U.S. Sen. John Thune (R-S.D.), chairman of the Senate Committee on Commerce, Science, and Transportation, today in a letter to Federal Communications Commission (FCC) Chairman Ajit Pai shared their vision for how an upcoming rulemaking can better protect consumers who receive unwanted robocalls and robotexts to a phone number that was reassigned after the previous holder gave consent to be contacted.

“Periodically, consumers receive unwanted robocalls and robotexts because the previous holder, not the current holder, of the phone number provided consent,” wrote Thune and Markey. “Not only are these calls and texts to reassigned numbers a nuisance to consumers, but they may also create liabilities for calling parties.” 

The letter went on to describe, for FCC consideration, the two senators’ vision for a comprehensive database of reassigned phone numbers to help marketers trying to follow the rules:

• Comprehensiveness – The reassigned numbers database should comprehensively document all telephone numbers that could be reassigned.  Participation by all providers—wireless, wireline, Voice over Internet Protocol providers, and any other relevant carrier partners—is essential to ensuring the database is reliable.

• Accuracy – The database should be reliable and up-to-date to provide callers with accurate and timely information.  Telephone providers should promptly report when one of their telephone numbers has been relinquished by the previous user, and the database should be updated as frequently as necessary to ensure it serves its purpose.
  
  
• Accessibility – All callers, including small and medium-sized businesses, should have easy access to the database to confirm the currency of numbers.  

• Security – The database should protect and minimize the collection of consumers’ proprietary network information.

• Efficiency – The FCC should actively monitor and evaluate the comprehensiveness, accuracy, accessibility, and security of the reassigned numbers database and make appropriate reforms and modifications when necessary.  Further, the FCC should continue to protect consumers with reassigned numbers from unwanted calls and texts, including from callers using the reassigned numbers database. 

• Safe Harbor – This proceeding is an opportunity to create sensible tools that callers can use to avoid calling or texting reassigned numbers, and should not be a vehicle to strip consumers of their ability to seek recourse from callers violating TCPA regulations.  With that said, a safe harbor shielding a caller from TCPA liability for making calls to reassigned numbers, without required consent, may be appropriate if the following conditions are met:

• The caller took all reasonable steps to properly use a reassigned numbers database, in a timely manner, made available under this rulemaking and validate the authenticity of the number prior to making the calls or texts;

• The call or text to a reassigned number was the result of inaccurate information received from the database;

• The caller had the consent of the consumer the caller was attempting to contact; and

• The caller took appropriate steps to stop calling and texting the reassigned number and reported the inaccuracy.

Click here for a copy of the July 19, 2018, letter to Pai.

Last year, Thune and Markey sent a letter encouraging the commission to proceed with the current rulemaking effort to create a reassigned telephone numbers database. In March, they commended the FCC for moving forward with their request.

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