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TCPA Regulatory Update: FCC Releases Second Further Notice of Proposed Rulemaking

On March 1, 2018, the Federal Communications Commission (“FCC” or “Commission”) released a draft Second Further Notice of Proposed Rulemaking (“FNPRM”) aimed at combatting illegal robocalls through use of a reassigned numbers database. The full Commission will vote on whether to adopt the FNPRM at its monthly meeting on March 22, 2018.

The draft FNPRM addresses one of the fronts in the Commission’s battle against unwanted robocalls – reassigned numbers. When a consumer disconnects her number, and that number is later reassigned to a different consumer, businesses to which the original consumer gave prior express calling consent frequently have no way to learn of the reassignment. This leads to annoying and unsolicited calls to the number’s new owner, and exposes legitimate businesses to potential liability as well as wastes their time and resources. While the TCPA was amended in 2015 to include a one-call safe harbor for calls made to reassigned numbers, businesses still lack the information they need to determine if a number has been reassigned in the event that the new owner of the number does not answer the call or does not indicate to the business that the number has been reassigned. In the draft FNPRM, the Commission attempts to address this issue by proposing the creation of a comprehensive and current database of reassigned numbers. This proposal, which was raised previously in the July 2017 Reassigned Numbers Notice of Inquiry as a response to the concerns of businesses that there was no guaranteed method to discover all reassignments, received broad support from a range of commenters, including callers and associated trade organizations, consumer groups, cable and Voice over Internet Protocol (“VoIP”) service providers, and data aggregators.

The draft FNPRM would seek comment on the type of information that should be included in the reassigned number database in order to be useful to callers. It would also seek comment on how service providers should report that information and how callers should access it, as well as how comprehensive and timely the database should be. The Commission would consider three different options for compiling the database:

  1. Requiring service providers to report reassigned number information to a single, FCC-designated database;
  2. Requiring service providers to report that information to one or more commercial data aggregators; or
  3. Allowing service providers to report that information to commercial data aggregators on a voluntary basis.

The Commission would also seek comment on whether and how it should adopt a safe harbor from liability under the TCPA for callers who use the reassigned numbers database. Finally, the Commission would ask how such a safe harbor would interact with the private right of action under the TCPA.

Notable Filing

On February 19, 2018, Inovalon, Inc. (“Inovalon”), a cloud-enabled healthcare platform, filed a Petition for Expedited Declaratory Ruling Clarifying Unsolicited Advertisement Provision of Telephone Consumer Protection Act and Junk Fax Prevention Act. Inovalon asks the Commission to clarify that faxes sent by the designee of a health plan to a patient’s medical provider, pursuant to an established business relationship between the health plan and provider, requesting patient medical records are not “unsolicited advertisements” subject to TCPA or Junk Fax Prevention Act liability. It also asks the Commission to find that faxes offering the free collection and/or digitization of patient medical records, and which do not offer any commercially available product or service to the recipients, are not advertisements under the TCPA. The Commission has not yet responded to the petition.

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Russell H. Fox is a wireless communications attorney at Mintz. He guides clients through federal legislative, regulatory, and transactional matters. Russell also participates in FCC proceedings, negotiates spectrum agreements, and represents clients in spectrum auctions.