FCC Proposes Reassigned Number Database to Combat Robocalls; O'Rielly Questions Need

The agency proposed that one or more databases be available with information needed to avoid calling reassigned numbers, said a release. Although previous users of reassigned numbers may have consented to robocalls, new users may not have, exposing them to unwanted calls. "These misdirected calls are a nuisance to the consumers that receive them," said Chairman Ajit Pai. "Legitimate businesses, through no fault of their own, waste their time and effort calling the wrong consumers while subjecting themselves to potential liability under the Telephone Consumer Protection Act." Commissioner statements here.

Pai noted the U.S. Court of Appeals for the D.C. Circuit reversal of key parts of a 2015 order he dissented from, including a one-call safe harbor from TCPA liability for callers to reassigned numbers (see 1803160053 and 1803210023). "As the D.C. Circuit unanimously recognized last week, we’ve been exploring ways to reduce unwanted robocalls to reassigned numbers," he said. "Today, we take another step toward developing a solution."

The FNPRM seeks comment on what information is needed to avoid calling reassigned numbers, and three alternatives for service providers to report information. "We hope to adopt an approach that’s easy-to-use and cost-effective for callers while minimizing the reporting burdens on service providers," Pai said. The item also seeks comment on whether, and if so how, the agency should adopt a TCPA safe harbor.

Commissioner Brendan Carr said a database would help reduce unwanted robocalls while ensuring the FCC doesn't target callers following best practices. He thanked colleagues for accepting edits he suggested, including additional data on the scope of the problem. He also cited additional questions about carrier database costs, and "bigger picture" issues on FCC anti-robocalling efforts. He didn't speak a line in his written statement on questions "about the potential impact of the D.C. Circuit's decision on our next steps."

O'Rielly said the database proposal should be reassessed after the court ruling and more data is needed, in brief spoken remarks. In his written statement, he said the FCC should remain focused on "bad actors," and said ideas "designed to help legitimate businesses operate within the confines of the largely defunct Order need to be reexamined closely and methodically. We certainly shouldn't rush to judgment on any response to the court's decision." Pai told reporters he's pursuing "smart" rules and "strong" enforcement. He noted an FCC/FTC robocalling forum Friday (see 1803190045).

Democrats backed the database effort. By one estimate, wireless carriers reassign up to 100,000 numbers daily, said Commissioner Mignon Clyburn, who preferred creating a single database. "The sheer volume of robocalls we receive is insane. ... [T]hey represent the largest single category of complaints" to the FCC and the FTC, said Rosenworcel. "I support developing this database."

"But let’s get real. This is an effort to provide a legal green light for robocallers," Rosenworcel said. "As long as they consult this list before dialing, they will be free from liability under the [TCPA]. So this protects robocallers. ... The real question is what are we doing to protect consumers? And the answer is: not enough." She said it has been six months since the FCC initiated its last robocalling enforcement action; nine months since it proposed call authentication standards targeting fraudulent calls; and almost 18 months since a robocall strike force "identified Shaken-Stir as a technology to reduce robocalls," which Canadians "are putting in place." She was referring to Signature-based Handling of Asserted Information Using toKENs (Shaken) and Secure Telephone Identity Revisited (Stir).

Rosenworcel said the FCC needs to respond to the court ruling. "That will mean defining autodialers and how they can be used to call millions of consumers. It could also mean revisiting just how consumers can revoke consent they may have given previously to companies to make calls," she said. "We have a lot of work to do. And we have been too slow to do it. Because this rulemaking takes only the smallest stab at a massive problem, I dissent in part."

O'Rielly's statement said the cost-benefit equation is in question after the ruling. The "true benefit" of a database would be to "provide legitimate callers a safe harbor from financially-crippling litigation simply because they unwittingly called a number they thought belonged to a consenting customer," he said. "Now that the court has tossed out the prior commission’s illogical approach, and made clear we can decide that callers are not liable unless they have actual knowledge that the number changed hands, there may be less value or need in creating a new database, at least from a legal liability perspective. Responsible companies may still wish to use a database to keep their call lists up to date and to minimize stray calls. However, I wonder whether the benefit of a new database will exceed the costs. ... The most sensible option at this point, if we proceed at all, would be to encourage voluntary reporting to existing, commercially available databases with appropriate legal protections for those that decide to do so."

Two key senators endorsed the initiative. “We applaud the FCC for exploring opportunities to reduce unwanted robocalls and robotexts, and we strongly encourage the Commission to provide consumers and businesses the much-needed relief they deserve by addressing issues associated with reassigned numbers," said Senate Commerce Committee Chairman John Thune, R-S.D., and Sen. Ed Markey, D-Mass. AT&T is using every tool it has to combat unwanted robocalls, blocking 3.5 billion illegal calls to date, blogged Assistant Vice President-Federal Regulatory Linda Vandeloop. She vowed to work with the FCC and others "to add tools to our toolbox."