Regulations in Search of a Problem

How many consumers will query the RND database before calling a toll-free or business number? Would you?

We have heard of the phrase “technology in search of a problem,” and there is now a corollary version of “regulations in search of a problem.”  We have a prime example of this in the regulations recently adopted by the FCC Telephone Consumer Protection Act (“TCPA”).

At its December 13, 2018 meeting, the FCC mandated the development of an industry-wide Reassigned Number Database (“RND”). This would allow call originators to query the RND to ascertain whether the person they are dialing has had their number reassigned. This mandate is purported to address two main problems, including: 1) curbing the tide of unwanted telephone calls to consumers who receive calls intended to a prior subscriber; and 2) reducing caller TCPA liability when calling a reassigned number.  The FCC views mandating the RND as one approach to address the problem of unwanted calls to consumers.

The FCC’s Order mandates that each month all carriers must upload all of their assigned telephone numbers and the corresponding date of the last known disconnection. Then, a caller can query the RND indicating a number and a date. The date “may be any past date on which the caller is reasonably certain that the consumer the call intends to reach could in fact be reached at that number.”  The RND will respond with a “yes” if the number has been reported as disconnected since the provided date, “no” if the number has not been disconnected since the date, and “no data” if the information is unavailable. Callers are incentivized to use the RND database by receiving a safe-harbor from Telephone Consumer Protection Act (“TCPA”) liability, but only if they query the RND before the call to check the status.

Calls to Business Numbers Are Not Calls Directed to Consumers

I will state upfront that I have been skeptical over the need and potential effectiveness of such a database. Here is one reason: the FCC mandates that all carriers upload all telephone numbers to the RND database, including business and toll-free telephone numbers. This is where the regulations are not addressing the identified problems.

First, calls to business numbers are obviously not calls directed to consumers. Certainly, there are businesses that occasionally receive unwanted calls that are intended for a prior business associated with that number, but there is no evidence in the FCC’s Order that this is a major problem to be addressed. Second, calls to toll-free numbers usually originate from consumers. While the FCC Order is correct that calling a reassigned toll-free number “pose[s] a problem to callers who waste time calling an unintended recipient and recipients who are responsible for paying the toll charge,” this was not the problem the regulation was intended to address. Personally, I can’t recall the last time I called a toll-free number and instead reached an unintended company because the number was reassigned.

Third, putting numbers into the RND makes sense only if callers query the database before calling. How many consumers will query the RND database before calling a toll-free or business number? Would you? I expect very, very few consumers (or even businesses) would do so.

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Why is a Safe Harbor Needed for Calling Business/Toll-Free Numbers?

Remember, one of the problems the RND database was designed to address was reducing a caller’s TCPA liability when accidentally calling a reassigned number. TCPA liability frequently occurs when a contact center uses an automatic telephone dialing system (“ATDS”) to call a wireless number, but the number has since been reassigned. The safe-harbor provision of the Order encourages the caller to query first to avoid inadvertently calling the reassigned number when using an ATDS. But in the case of a wireline business number or a toll-free number, why would a caller (typically a consumer) query the RND database? Typically, consumers calling a business or toll-free number are not using an ATDS. Therefore, there is no TCPA liability in these cases and no need to provide the consumer with a safe-harbor. I have not seen evidence that consumers being subject to TCPA liability is a significant problem, nor one that the FCC’s Order was attempting to address.

The Regulations Represent Regulatory Overreach

Thus, the FCC’s mandate that carriers upload business and toll-free numbers do not address the problem of curbing consumer complaints of receiving unwanted calls intended to a prior subscriber, nor does this mandate address actual problems of potential TCPA liability when dialing, e.g., a toll-free number. The mandate seems to be motivated by the goal of “consistency,” namely that all numbers must be uploaded, otherwise, exceptions to the rule will exist. And, it is administratively easier to draft and enforce broad, consistent rules, even if they don’t make sense to the industry. The FCC justifies this rule by stating, “We agree with the vast majority of commenters in the record that to be effective, the reassigned numbers database needs to be as comprehensive as possible so that consumers are not left vulnerable.” ([1]FCC Second Report and Order, released December 13, 2018 (FCC 18-177), par. 22.) This argument is disingenuous because calls to business numbers and toll-free numbers do not leave consumers vulnerable, because these are calls made to businesses, not consumers. Likely, the various commenters advocating a comprehensive reassigned number database were businesses referencing the need for a broad database of consumer numbers, not business and toll-free numbers.

So, we are now in the situation of having additional regulations foisted on the industry that do not solve the stated problems. This is not my only issue with the recent FCC Order, but that is another topic for another blog. Truly, this requirement in the FCC’s Order is a prime example of a “regulation in search of a problem.”

The opinions presented here are those of Karl Koster and are not necessarily those of Noble Systems. The contents should not be construed as legal advice, nor as any position of Noble Systems or its affiliates.