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As of July 27, 2020, the Consumer and Governmental Affairs Bureau (CGB) set into motion the established guidelines for operation of the FCC’s Reassigned Numbers Database. This is good news for the ARM industry, as we’re now one step closer to having a crucial tool in hand that can help simplify the process of managing consent under the Telephone Consumer Protection Act (TCPA).

In this post, I’ll discuss the current conundrum surrounding reassigned mobile numbers, a bit of legal history, and the FCC’s response. Then I’ll explain how you can make best use of the database once it’s up and running.

 

The Struggle to Manage Consent for Mobile Numbers Under the TCPA

One of the most pressing challenges of complying with the Telephone Consumer Protection Act (TCPA) is managing consent. A condition of placing a call, sending a text, leaving a prerecorded message, or using an artificial voice to communicate with a consumer using their mobile number is that the calling party must have the consent of the called party.

To date, the conundrum for a calling party has been a lack of access to tools or services capable of confirming precisely if the consumer associated with the mobile number at the time of the call, text or message is in fact the same consumer who granted the calling party consent to use their mobile number in such a manner.

 

The Legal Question: What Constitutes Proper Consent?

The issue was first addressed in ACA Int’l v. FCC, No. 15-211, 2018 U.S. App. LEXIS 6535 (D.C. Cir. Mar. 16, 2018). In this case, the Second Circuit Court of Appeals wrestled with the question of whether the calling party must have consent to call from the consumer who they actually called or the person who they intended to call. Unfortunately, the Second Circuit failed to reach a conclusion and lobbed the issue back to the Federal Communications Commission (FCC) for further consideration.

In the meantime, calling parties have unsuccessfully used private database searches, workflow waterfalls, pass through consent and best-guess approaches to determine whether the consumer who once granted them consent under the TCPA, is indeed the consumer they are attempting to call, send a text, leave a prerecorded message or communicate with using an artificial voice.

 

The FCC Response: Give Collection Agencies the Access They Need

Eventually the FCC took action. On December 13, 2018, the Commission released a Second Report and Order on Advanced Methods to Target and Eliminate Unlawful Robocalls.

In the Reassigned Numbers Order, the Commission addressed the problem of unwanted calls to consumers with numbers reassigned from a previous consumer by establishing a single, comprehensive Reassigned Numbers Database. The FCC explained that the Reassigned Numbers Database would contain reassigned number information from each provider that obtains North American Numbering Plan U.S. geographic numbers and toll-free numbers. Once the Reassigned Numbers Database is established, callers will be able to consult the database to determine whether a telephone number has been reassigned from the consumer they intend to reach, thus allowing them to avoid calling consumers with reassigned numbers who may not wish to receive the call.

On June 26, 2020, the Commission published an announcement of OMB approval and compliance dates for the new rules in the Federal Register.[1]

Beginning July 27, 2020, voice service providers must maintain records of the most recent permanent disconnection date for each number, and must age telephone numbers for at least 45 days after disconnection and before reassignment.[2]  Small business voice service providers have an additional six months (i.e., until January 27, 2021), to comply with the record maintenance rule.[3]  The Commission will announce the compliance date for the new rule requiring voice service providers to send information to the Reassigned Numbers Database once the database is established.

 

Pro Tip: Be Prepared to Take Full Advantage of the Database

While progress has been slow, the FCC’s Reassigned Number Database will soon be operational. For a fee, calling parties will be able to submit numbers to the database for evaluation.

Just as carriers are beginning to maintain records of the most recent permanent disconnection date for each number, you should begin to maintain records of the most recent date your agency either successfully used a mobile number to reach a right party or the date the right party provided consent to use their number as required by the TCPA. You’ll l need to know these trigger dates to make best use of the FCC’s Reassigned Number Database—a welcome resource whose value to compliance-minded collection agencies cannot be overstated.

 

 

[1] Federal Communications Commission, Advanced Methods to Target and Eliminate Unlawful Robocalls, 85 FR 38334 (June 26, 2020).
[2] Compliance with 47 CFR §§ 52.15(f)(1)(ii) and (f)(8), 52.103(d), and 64.1200(l)(1) will be required as of July 27, 2020. Id.
[3] Reassigned Numbers Database Order, 33 FCC Rcd at 12039, para. 43.

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Disclaimer: Ontario Systems is a technology company and provides this blog article solely for general informational and marketing purposes. You should not rely on the content of this material for any other purpose or as specific guidance for your company. Ontario Systems’ advice, services, tools and products described herein do not guarantee compliance with any law or industry standard. You are ultimately responsible for your own company’s actions and compliance efforts. Because everyone’s situation is different, you must consult your own attorneys, accountants, and/or other advisors to obtain specific advice on your company’s compliance, legal, tax, regulatory and/or other business needs. Despite Ontario Systems’ efforts to provide current and up-to-date information, you need to recognize that the information contained herein may become outdated quickly and may contain errors and/or other inaccuracies.

© 2020 Ontario Systems, LLC. All rights reserved. Information contained in this document is subject to change. Reproduction of this publication is not permitted without the express permission of Ontario Systems, LLC.

Posted by Rozanne Andersen

Rozanne Andersen, J.D., serves as Ontario Systems’ Vice President and Chief Compliance Officer. She is responsible for leading Ontario Systems’ corporate efforts and response to the CFPB’s launch of compliance examinations in the ARM industry. Rozanne's advocacy work on behalf of the credit and collection industry has resulted in landmark legislation and regulation at both the state level and the federal level with regard to the FDCPA, FCRA and HIPAA. In 2020, Rozanne was named Chief Compliance Officer of the Year (Large Company) by the international Women in Compliance Network.
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