NCLC Tells FCC “Callers can easily avoid making calls to telephone numbers that have been reassigned….” – But Is it That Simple?

The Nationwide Shopper Legislation Middle is at it once more.

In response to the Division of Well being and Human Providers’ latest letter to the FCC searching for readability on whether or not the TCPA applies to texts it would really like to make to alert Individuals of sure medical advantages, the NCLC–a corporation that nominally represents customers, however actually appears to characterize the pursuits of the plaintiff’s bar–has filed a remark.

Unsurprisingly, the NCLC takes the place that HHS wants no aid. Authorities contractors are coated by the TCPA–it says–however the texts at problem in HHS’ letter are consented, so that they’re advantageous. (Though it later clarifies that solely “many” however not “all” of the enrollees whom HHS needs to name have “probably” given their telephone numbers as a part of written enrollment agreements–so maybe not.)

Hmmmm. Looks like a entice. But we’ll ignore that for now.

The essential piece right here although is what the NCLC–very highly effective voice, for higher or (typically) worse–is telling the FCC in regards to the effectiveness of the brand new Reassigned Quantity Database:

3. Callers can easily avoid making calls to telephone numbers that have been reassigned to somebody apart from the enrollee

A main supply of TCPA litigation danger has been calls inadvertently made to numbers that are now not assigned to the one who offered consent. Courts have held the caller answerable for making automated calls to a mobile phone quantity that has been reassigned to somebody apart from the one who offered consent to be referred to as.29

The Fee has carried out the Reassigned Quantity Database particularly to handle that danger of legal responsibility, in addition to to restrict the variety of undesirable robocalls:

The FCC’s Reassigned Numbers Database (RND) is designed to forestall a shopper from getting undesirable calls supposed for somebody who beforehand held their cellphone quantity. Callers can use the database to decide whether or not a telephone quantity might have been reassigned so that they can avoid calling customers who are not looking for to obtain the calls. Callers that use the database can additionally cut back their potential Telephone Shopper Safety Act (TCPA) legal responsibility by avoiding inadvertent calls to customers who have not given consent for the decision.31

The database has been absolutely operational since November 1, 2021. It offers a way for callers to discover out earlier than making a name if the cellphone quantity has been reassigned. If the database wrongly signifies that the quantity has not been reassigned, as long as the caller has used the database appropriately, no TCPA legal responsibility will apply for reaching the improper social gathering. 32 Thus, so long as HHS’s callers make use of this easy, available database, they can be assured that they won’t be held answerable for making calls to reassigned numbers.

Whereas I steadfastly help each the creation and use of the RND, it additionally should be noticed that there are myriad issues with the RND as it presently exists. Most significantly, the info units within the RND are solely complete by October 1, 2021 and spotty again to February, 2021 (past which there aren’t any data!)

So for folk like HHS–and servicers of mortgages, and retailers, and bank card corporations–who need to attain clients who offered their contact info earlier than 10/2021 or 2/2021 the RND is solely not useful.

The NCLC’s over simplification of a essential problem isn’t a surprise. They as soon as instructed Congress that the TCPA is “Straightforward and Clear” after all.

Full remark right here: NCLC Comments-c3

We’ll control developments on HHS’ letter and all of the FCC goings ons.

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