FCC Turns Its Focus to Reassigned Number Problem in Latest Notice of Inquiry


7/13/2017 9:43:00 PM

During its July 13 Open Meeting, the FCC voted unanimously to adopt an NOI seeking input on the possible creation of a comprehensive reassigned number database.

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On July 13, the Federal Communications Commission voted unanimously to adopt a Notice of Inquiry to explore the creation of a database or other mechanism to share reassigned number information with callers, an issue that has been at the forefront of much-needed reform of the Telephone Consumer Protection Act.  A draft of the NOI which was released in advance of the meeting, and is subject to editorial changes, is available here.

In the NOI, the FCC seeks comment on ways it can require service providers to report information about number reassignments in order to reduce unwanted robocalls and improve TCPA compliance. The FCC also asks about the methods by which such reporting would occur and how “robocallers” can access reassigned number information.

“[S]uch reporting as part of a comprehensive reassigned numbers resource would greatly benefit both consumers (by not getting unwanted calls intended for another consumer) and robocallers (by not wasting resources calling the wrong consumer and by avoiding potential TCPA violations),” the NOI states. “At the same time, we do not believe that voice providers, which presumably already track disconnected and reassigned number information for multiple reasons, would be greatly burdened if we were to consider such reporting requirements.”

Specifically, the NOI is broken down into the following three parts:

  1. Reporting Number Reassignments.  The FCC is seeking input on the ways in which voice service providers who have reassigned number information could report it in an accurate and timely way. Some specific questions posed by the FCC include: What information should voice service providers report?  Should any reporting requirement apply to all voice service providers or only to wireless providers (thereby excluding VoIP and wireline)? How should the FCC deal with number reassignments?  What are the costs and benefits of voice service providers reporting reassigned number information?
  2. Reassigned Number Reporting Alternatives.  Recognizing the insufficiency of current tools to identify all reassigned numbers, the FCC is also seeking comment “on the most appropriate mechanism for voice providers to report reassignments and for robocallers to access that information.” Specifically, the NOI lays out four alternatives that have varying degrees of FCC involvement in the creation and operation of a reassigned number database or some other mechanism for the sharing of reassigned number information.  For example, one option is for the FCC to establish and select an administrator of a central database of reassigned numbers, similar to what it did to facilitate Local Number Portability (LNP).  Under this approach, voice service providers would report information to the reassigned number database, and callers would in turn query the database for information about reassigned numbers.
  3. Additional Reassigned Number Issues. The FCC poses several questions related to the various reporting alternatives.  For example, should voice service providers be compensated for reporting reassigned number information and, if so, how?  Should reassigned number information be in a structured format?  How often should voice service providers be required to update the reassigned number information they report?  Should access to reassigned number information be restricted to entities who meet certain qualifications?  Should such access be tracked and audited or reviewed in any way?  Do any of the proposed alternatives create a different or greater burden on small businesses?

Part of the current problem faced by legitimate businesses, and one that the FCC recognizes in the NOI, is that “callers lack guaranteed methods to discover all reassignments immediately after they occur.”  Without this information, a caller has no way to know for certain that prior express consent provided by a consumer is actually reliable, subjecting callers to potential ruinous liability for each call placed to a wireless number.  As a result, legitimate businesses struggle to balance contacting consumers who have provided prior express consent with avoiding the risk of TCPA liability caused by the inadvertent dialing of a reassigned number. 

These issues were exacerbated by the FCC in the 2015 Omnibus TCPA Declaratory Ruling and Order and are part of ACA International’s pending lawsuit challenging that Order. A decision by the D.C. Circuit in ACA Intl. v. FCC is expected at any time.

While the NOI specifically states in a footnote that it is not seeking comment regarding its TCPA rules or any other TCPA precedent, development of a reassigned number database is inherently linked to future TCPA compliance.  Because of this, the FCC notes that both businesses and consumer groups alike have expressed support for a comprehensive reassigned number database in the TCPA docket.

During the FCC’s Open Meeting on Thursday, when the NOI was adopted, Commissioner Michael O’Rielly once again stressed the important difference between legal and illegal robocalls, emphasizing that “not every robocall is problematic.”  He focused on the flaws of the 2015 TCPA Order under Chairman Tom Wheeler who, according to O’Rielly, ignored his pleas for a workable reassigned number solution and instead led the way to the “faulty and intellectually dishonest” one-call attempt safe harbor.  O’Rielly reiterated his hope that the D.C. Circuit will overturn this and other aspects of the 2015 TCPA Order.

For his part, Chairman Ajit Pai described the issue of reassigned numbers as a “tricky” problem, stating the FCC needs solid public input on establishing a database that best serves consumers and callers alike.  Commissioner Mignon Clyburn stated that a “multi-pronged approach” is needed to reduce the number of illegal robocalls and that she supports a reassigned number database as part of that effort.

Under Pai’s leadership, the FCC has made the growing problem of unlawful robocalls a priority.  Besides this latest NOI, in May, the FCC adopted a Notice of Proposed Rulemaking to allow voice service providers to block calls that were unlikely to be placed for any lawful purpose, as well as an accompanying NOI that explored the potential expansion of a provider’s ability to block additional presumptively illegal calls in the future.  ACA’s comments, which supported the NPRM but expressed concerns about the NOI, can be found here.  

In addition, at Thursday’s Open Meeting, the FCC also voted unanimously to approve an NOI spearheaded by the FCC’s Wireline Competition Bureau to begin the process of potentially establishing call authentication technology to reduce the number of illegal robocalls.  A draft of this NOI, also released before the meeting and subject to editorial changes, is available here.

“Authenticating calls aims to make it possible for subscribers and carriers to know that callers are who they say they are, reducing the risk of fraud and ensuring that callers can be held accountable for their calls,” according to the FCC. The call authentication NOI, which is more technical in nature, seeks comment on the following issues:

  • How a call authentication system should be governed, including the role of the FCC
  • Technical implementation and operation aspects of an authentication system
  • Scope and policy effects of a call authentication system, including privacy and cost considerations

Although the FCC voted unanimously to adopt the call authentication NOI, in his remarks, O’Rielly made clear that he wasn’t “exactly comfortable” with the government getting involved in this sphere, stating that it is better left to the private sector.  However, because it is just an NOI at this point – which means the FCC is only gathering information – he voted to approve it. 

Comments on the reassigned number NOI will be due 45 days after it is released and reply comments will be due 75 days after the release date.  Comments on the call authentication NOI will be due 30 days after it is released and reply comments will be due 60 days after the release date. 

ACA International applauds the FCC for focusing its efforts on the growing number of bad actors who are using modern dialing technology to harass and scam consumers.  However, ACA continues to find the FCC's repeated use of the term "robocall," which clearly has a negative connotation, to be problematic.  While “robocall” brings to mind unwanted and illegitimate calls, the FCC's definition of robocall is content-neutral, which means it encompasses both lawful and unlawful calls.  As a result, continually using this loaded word to sweep in normal, expected and desired communications into the same bucket as telemarketing and scam calls is misleading and impedes much-needed TCPA reform. 

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