Frequently Asked Questions

Consent applies to the called party. So, if a number is reassigned to a different person, whatever consent you may have had for that number is no longer valid. Because the Telephone Consumer Protection Act (TCPA) is a strict liability statute—meaning violation is not contingent on fault or criminal intent—any call placed to a recycled number is a potential TCPA violation.

The Federal Communications Commission’s (FCC) 2015 Telephone Consumer Protection Act (TCPA) Omnibus Declaratory Ruling and Order established a one-call safe harbor for reassigned phone numbers. This safe harbor applied to situations in which callers mistakenly called a phone number for which they had previously received consent but had since been reassigned to another person. Because consent is tied to the called party and not the phone number, the phone call in this situation would be considered a violation. In order to provide some protection to good faith telemarketers who encountered these circumstances, the FCC adopted a rule whereby callers were allowed to make one phone call to a phone number that had been reassigned without being held liable for a violation—whether or not the call resulted in the caller being informed of the number’s reassignment.

In 2018, the D.C. Circuit court’s ruling in ACA International v. FCC struck down this safe harbor. Finding it “arbitrary and capricious,” the court did away with the rule because the FCC did not offer any argument for why a caller should be held liable if it has no reason for being aware of the number’s reassignment. Indeed, the rule worked such that the safe harbor was exhausted after one call even if the call was not answered. Unfortunately, the court did not offer any remedy for how this situation should be handled. So, rather than a flawed TCPA safe harbor for reassigned numbers, there is no safe harbor at all.

In December 2018, the FCC announced a plan to create a reassigned number database. Callers would be able to scrub their number lists against this database in order to remove any numbers that have been reassigned to new users, thus decreasing the possibility of incurring TCPA violations by calling these new users.

Included in this plan is a new safe harbor rule for dealing with reassigned numbers, replacing the old one-call rule that had been vacated by the ACA Int’l ruling. With documentation requirements similar to what is required for the national Do Not Call (DNC) safe harbor, callers are able to claim safe harbor for any reassigned numbers that they have dialed as long as they have scrubbed their numbers lists against the FCC database within 30 days.

This Safe Harbor became valid with the implementation of the FCC Reassigned Number Database in November 2021.

Unscrupulous Telephone Consumer Protection Act (TCPA) litigators and professional plaintiffs often make use of a deep bag of tricks to induce costly TCPA violations. Some of their more frequent and damaging techniques are as follows:

Dual-Purpose Phone Lines
Sometimes referred to as “mixed-use” lines. Litigators will use one phone number for both business and personal purposes, potentially entrapping marketers who believe they are making calls to a business line when, in fact, it is a personal line for TCPA purposes.

Waiting to Receive Multiple Calls Before Threatening Litigation
Because TCPA fines are levied on a per violation basis, litigators can juice their numbers by intentionally allowing a company to call them multiple times before they take action against the company.

Bullying for an Out of Court Settlement
Litigators will ambush defendants by threatening litigation with the intent of forcing an out-of-court settlement.

Taking Advantage of Reassigned Numbers
Litigators and serial plaintiffs will purchase multiple cell phones with the intent of manufacturing claims using phone numbers they know have been reassigned from their original owner.

Personally Targeting Corporate Officers in Lawsuits
By naming corporate officers and owners rather than merely the company itself, a litigator can apply additional pressure on a defendant.

Call Seeding
Litigators and their professional plaintiff accomplices will give consent for their numbers to be called. But rather than answering when called, they will call back from a different cell phone number for which they have not given consent, and talk just enough to identify themselves before hanging up, thus baiting agents into calling back without consent.

No, if you find yourself in this situation, there is no requirement to send notice to consumers.

Approximately 100,000 mobile phone numbers are reassigned by wireless carriers every day. Potentially 20% of data in an average consumer contact list could be made up of reassigned phone numbers. Therefore, theoretically, you could be liable for the maximum Telephone Consumer Protection Act (TCPA) violation of $500 per call or text on up to 20% of your entire campaign.

While the Federal Communications Commission (FCC) has promised to create a comprehensive database of reassigned numbers, none exists currently. Your best defense is to scrub for reassigned numbers and to actively maintain your contact database by asking consumers for updated information.

The TRACED Act implements a number of new regulations on robocalls, primarily by way of instructions to the FCC and other federal agencies and departments. Among the main provisions of the TRACED Act are the following:

Stopping Robocalls
The Act directs the FCC to take final action on its June 2019 Declaratory Ruling on Advanced Methods To Target and Eliminate Unlawful Robocalls. It directs the commission to implement these rules “with transparency and effective redress options for both… consumers; and… callers.”

SHAKEN/STIR
Service providers are required to implement SHAKEN/STIR—an acronym for Signature-based Handling of Asserted Information Using toKENs (SHAKEN) and the Secure Telephone Identity Revisited (STIR)—call authentication protocols. The protocol digitally validates a phone call as it passes through the complex web of telecom networks, allowing phone providers to verify that the call is actually coming from whoever appears to be placing the call.

Monetary Penalties
The FCC is authorized to assess penalties of up to $10,000 per call for violation with intent.

Statute of Limitations
The statute of limitations for a general violation is one year while the statute of limitations for violation with intent is four years.

Interagency Task Force
The FCC is required to convene an interagency task force to study government prosecution of robocall violations. The other agencies included in the task force are the Federal Trade Commission (FTC), Department of Justice (DOJ), Department of Commerce (DOC), Department of State (DOS), Department of Homeland Security (DHS), Consumer Financial Protection Bureau (CFPB), and state attorneys general.

Annual Reports to Congress
The FCC is required to provide an annual report to Congress on its robocall enforcement efforts. Additionally, the FCC and FTC are required to annually report to Congress on “Robocalls and Transmission of Misleading or Inaccurate Caller Identification Information”—suggesting that Congress has considered the possibility of good faith, law abiding callers being mistakenly affected by call-blocking technology. Many of the other sections of the Act also require reporting on the progress in implementing the various provisions.

Protections from Spoofed Calls
The Act instructs the FCC to enact a rulemaking to “help protect a subscriber from receiving unwanted calls or text messages from a caller using an unauthenticated number.”

Report on Reassigned Number Database
Within a year of the date of enactment, the FCC must give a report to Congress on its progress in implementing its proposed official database of reassigned phone numbers. This report must also be made available to the public on the FCC website.

Protection from One-Ring Scams
The FCC is required to “initiate a proceeding to protect called parties from one-ring scams.” The FCC is required to coordinate with the FTC and state-level officials on these efforts.

Coordination with AG on Certain Robocall Violations
The FCC is required to provide evidence to the Attorney General in circumstances where it “obtains evidence that suggest a willful, knowing, and repeated robocall violation with an intent to defraud, cause harm, or wrongly obtain anything of value.” This suggests the possibility of criminal enforcement of robocall violations.

Eliminating Warnings for Robocall Violations
The act eliminates the FCC's existing practice of issuing warnings to individuals and companies who are violating robocall regulations. The FCC can now levy fines for those violations without ever warning the alleged violators.