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Keys to TCPA Compliance: How Marketers Can Track Reassigned Mobile Numbers

Keys to TCPA Compliance: How Marketers Can Track Reassigned Mobile Numbers

In this blog post, we discuss how our clients leverage the Waterfall platform to address the verification requirement of tracking reassigned mobile numbers following the Federal Communications Commission (“FCC”)’s order and declaratory ruling on July 2015. This ruling covers the interpretations of key provisions in the Telephone Consumer Protection Act (“TCPA”).

In July 2015, the FCC weighed in on multiple petitions seeking clarification regarding reassigned wireless telephone numbers, specifically “whether a caller making a call subject to the TCPA to a number reassigned from the consumer who gave consent for the call to a new consumer” is liable under the TCPA. The result of the July 2015 order was the clarification of two issues. First, in interpreting what a “called party” is under the TCPA, which the FCC interpreted the phrase “called party” to mean the “current subscriber” and not the “intended recipient,” and requires marketers to obtain consent “not of the intended recipient but the current subscriber (or nonsubscriber customary user of the phone).” Second, the FCC opined that “database tools” and “best practices” exist to allow a marketer to take “ongoing steps reasonably designed” to facilitate detection of reassigned numbers, and allows a one-time “safe-harbor” of only one text message to determine “actual knowledge of reassignment.”
What was intended to be a clarification, the July 2015 Order created more questions than answers:

What “database tools” exist, given that the FCC failed to cite any publicly available database? Are the FCC’s articulated “best practices” feasible to create meaningful “detection” practices?

Is the one-time “safe harbor” feasible, and can it actually create any relief from the TCPA liability risk?

Marketers will be expected to follow these rules or risk penalties from the TCPA. So how can marketers mitigate TCPA risk, periodically review their lists of consenting consumers, and determine which numbers need to be removed?

To help address the “database” question, Waterfall works closely with aggregators and mobile industry sources to track data from mobile carriers covering reassigned numbers. Currently, U.S. mobile carriers AT&T Wireless, Verizon Wireless, Sprint, T-Mobile, Cricket, Boost Mobile, Virgin Mobile USA, MetroPCS, Tracfone, C-Spire and Associated Carrier Group all publish data for reassigned or disconnected mobile numbers. These 11 cover the majority of wireless handsets in the United States. This “Disconnect Data” is not an exhaustive aggregation of disconnected mobile numbers across all mobile carriers, but it is the best source available today.

So how does Waterfall make sure clients are receiving this information? These mobile carriers publish the Disconnect Data at different times during a given day. Waterfall’s aggregators, collate the daily Disconnect Data and provide files of aggregated data to Waterfall. Waterfall processes the files from the aggregators on a nightly basis, running a comparison of Disconnect Data with phone numbers in clients’ databases stored on Waterfall’s platform to remove any matched phone numbers. Clients are then able to access the results of this matching and removal process to better manage their database records.

In addition to the support provided by the platform, Waterfall recommends that clients implement two of the “best practices” identified in the July 2015 Order to ensure their lists are correct. Send a periodic text message to your lists requesting any updates to contact information. Second, create a section of your disclosure language and program terms & conditions to request that consumers provide with notice when they switch or disconnect their mobile numbers.

THIS IS NOT LEGAL ADVICE. This post is provided for informational and educational purposes only. You should not act or rely on the information provided without first seeking the advice of an attorney.

 


Source: Statista and FierceWireless. Currently, certain U.S. mobile carriers do not publish data regarding reassigned numbers, including (i) U.S. Cellular and (ii) Google Voice.

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