TCPA Risk Avoidance Tool: The National Reassigned Numbers Database (RND)
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Recently, the FCC’s long-awaited Reassigned Numbers Database (commonly referred to as the “RND”) went live for use. The significance of the RND is that it offers companies the ability to query whether a telephone number was permanently disconnected after the date the consumer provided consent for calls or text messages. The RND is a tool that is intended, at least in part, to assist companies in avoiding or limiting liability and exposure for violation of the Telephone Consumer Protection Act (TCPA).
What is the Reassigned Numbers Database (RND)?
The RND is a national reassigned numbers database developed, in part, to assist companies that send autodialed text messages and make robocalls avoid liability that had been created when the Federal Communications Commission (FCC) interpreted the TCPA to impose liability where autodialed calls or texts were made to a telephone number that had been disconnected and assigned to a new user. Developing a national database allows companies to know whether the number that had previously opted-in to receive autodialed calls and text messages has subsequently been disconnected and reassigned to a new user.
The RND is an actively updated database of telephone numbers that have been permanently disconnected. The RND identifies whether a telephone number has been permanently disconnected by the carrier and is, therefore, subject to being reassigned to a new user. Any number that is listed in the database as having been disconnected, should be removed from a company’s contact list to prevent future calls or messages. The RND does not identify to whom a telephone number currently belongs and does not facilitate matching telephone numbers to consumers.
Companies who make recurring autodialed calls or send recurring autodialed text messages, such that consent is maintained for an extended period, have an even greater need to scrub their lists against the RND because the passage of time increases the likelihood that a number has been disconnected and reassigned to a new user. Under the FCC’s policies, a telephone number is aged for a period of as little as 45 days after disconnecting before it may be reassigned to a different user. As such, regularly checking contact lists against the RND is important to ensure that numbers do not get reassigned before being removed from a company’s contact list.
While the RND is a new tool that is helpful to ensure companies can determine whether numbers have been disconnected or reassigned to a new user, companies should not use the RND to replace their Do Not Call (“DNC”) scrubbing processes and procedures. Just because a number returns a “no” disconnection response from the RND does not mean that the number is not listed on a state or federal DNC list. Therefore, companies should continue to utilize their existing DNC and opt-out protocols.
The RND website—www.reassigned.us—provides additional information about registering for the database, the cost involved, completing queries and other valuable resources.
How Do RND Queries Work?
Companies can utilize the Reassigned Numbers Database by submitting queries that will help determine whether a particular phone number has been disconnected or reassigned. Companies may query the RND database using two data points: 1) the telephone number; and 2) either the date the company obtained consent, or the last date the company was able to verify that the consumer was at the particular telephone number. Once those two data points have been submitted to the RND, the company will receive one of three results:
|The number has been permanently disconnected.
|The telephone number has not been permanently disconnected since the date of consent or last contact.
|There is insufficient data to determine if the telephone number was permanently disconnected since the date of consent or last contact.
From a practical standpoint, companies may assume that any number queried which returns a “yes” result has been disconnected and reassigned and is no longer associated with the intended recipient of the contact. Thus, the number should not be contacted and should be removed from the company’s contact list.
On the other hand, a “no” number means that the telephone number is still likely associated with the intended recipient of the contact. Thus, the number may be contacted. Finally, “No data” results are inconclusive. This result presents a compliance dilemma for companies, the response to which is largely a question of risk tolerance.
What is the Significance of the Reassigned Numbers Database (RND) on TCPA litigation defense?
While the RND is brand new, one intent of the RND is to reduce potential TCPA liability from calling and contacting numbers that have been permanently disconnected and no longer belong to the person who provided prior express consent to receive autodialed calls or text messages. When a phone number is disconnected and then transferred to another person, companies no longer have valid consent to contact the number. Specifically, companies do not have valid consent from the new user of the phone number after the number has been disconnected and transferred to the new user. As such, unless the number is removed from the company’s contact list, the company may have exposure for a TCPA violation.
The safe harbor is the primary reason companies should use the RND. Companies may query the RND to determine whether a telephone number has been permanently disconnected from the consumer they intend to reach, thus allowing them to avoid contacting consumers with numbers that have been disconnected and reassigned to individuals who are not their customers or intended contacts and who may pursue TCPA litigation because of such unwanted and unconsented contacts.
The FCC defined a safe harbor from potential TCPA liability for companies who can demonstrate that they appropriately checked the most recent update of the RND and that the RND incorrectly reported a “no” response. For example, if a company relies on the “no” response from the RND and then proceeds to contact the number receiving the “no” response only to learn that it had been reassigned and no longer belongs to their customer, the safe harbor provision could then provide protection to the company from TCPA exposure.
In a nutshell, the safe harbor protects companies from TCPA liability if they inadvertently contact a reassigned number in reliance on an erroneous “no” response from an RND query. Therefore, if a consumer files suit under the TCPA for reassigned number calls/contacts, a company using the RND should be able to defend against those calls/contacts if the company is able to demonstrate the following elements:
- The company must have possessed prior express consent to contact the number before its reassignment.
- The company contacts the number after its reassignment.
- Prior to contacting, the company had scrubbed the number against the most recent information in the Reassigned Numbers Database and received a response of “no” (that the number had not been reassigned after the company obtained consent).
- The contact to the reassigned number was a result of the database erroneously returning a response of “no.”
To take advantage of the safe harbor, the burden will be on the company to show that the company checked the database before making the contact. The company must also demonstrate that it had the prior consumer/user’s consent to the contact. Thus, the safe harbor will not apply if the company is unable to establish initial consent.
Additionally, there is a question of timing. Specifically, how often must numbers be scrubbed against the RND to meet the requirements of the safe harbor? The safe harbor requires that the number called/contacted has been scrubbed against the most recent information in the RND. According to the FCC’s orders, providers are required to submit disconnect data on the 15th day of each month. Thus, the most recent information in the RND would seem to be after the 15th day of each month. Practically speaking, this means companies should consider monthly scrubs for numbers that are called/contacted on a regular basis or, at a minimum, implementing safeguards to ensure that the last scrub of the number occurred after the most recent mid-month data dump into the RND.
It should be noted that the Reassigned Numbers Database is new and therefore will be subject to challenge and interpretation by courts. As such, companies using the RND should also implement procedures that document how the company will implement the RND scrubs and maintain business records memorializing each of its database checks and the results returned. While the RND is a new tool for companies who send autodialed text messages and make robocalls, such companies should fully understand how the RND is used and implement internal policies and procedures to ensure compliance with the intent of the FCC/RND to defend against potential TCPA liability.
About the Author: Austin T. Hamilton, Esq. is board certified in business litigation by the Florida Bar and practices in the firm’s banking and financial services industry team. Austin advises businesses regarding potential consumer violations under various Florida and federal consumer protection statutes and is experienced in defending businesses against alleged violations of consumer protection statutes.