Advanced Methods To Target and Eliminate Unlawful Robocalls
| Citation | 84 FR 11226 |
| Record Number | 2019-05620 |
| Published date | 26 March 2019 |
| Section | Rules and Regulations |
| Court | Federal Communications Commission |
Federal Register, Volume 84 Issue 58 (Tuesday, March 26, 2019)
[Federal Register Volume 84, Number 58 (Tuesday, March 26, 2019)]
[Rules and Regulations]
[Pages 11226-11232]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-05620]
[[Page 11226]]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 52 and 64
[CG Docket No. 17-59; FCC 18-177]
Advanced Methods To Target and Eliminate Unlawful Robocalls
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: In this document, the Commission establishes a single,
comprehensive database that will contain the most recent permanent
disconnection date for toll free numbers and for each number allocated
to or ported to each provider that receives North American Numbering
Plan U.S. geographic numbers. The Commission also sets a minimum aging
period of 45 days before a permanently disconnected number may be
reassigned to a new subscriber and adopts a limited safe harbor from
liability for any caller that relies upon inaccurate information
provided by the database.
DATES:
Effective date: This rule is effective March 26, 2019.
Compliance date: Compliance will not be required for Sec. Sec.
52.15(f)(1)(ii)(8), 52.103(d), and 64.1200(l)(1) and (2) until the
Commission publishes documents in the Federal Register announcing the
compliance dates.
FOR FURTHER INFORMATION CONTACT: Josh Zeldis, Consumer Policy Division,
Consumer and Governmental Affairs Bureau (CGB), at (202) 418-0715,
email: [email protected].
SUPPLEMENTARY INFORMATION:
Compliance
The amendments of the Commission's rules as set forth in this
document are effective 30 days after publication of a document in the
Federal Register announcing approval by the Office of Management and
Budget (OMB). Compliance will not be required for Sec. Sec.
52.15(f)(1)(ii)(8), 52.103(d), and 64.1200(l)(1) until after approval
by OMB of information collection requirements contained in Sec. Sec.
52.15(f)(1)(ii)(8) and 64.1200(l)(1). The compliance date for
Sec. Sec. 52.15(f)(1)(ii)(8), 52.103(d), and 64.1200(l)(1) will be
specified in a document published in the Federal Register. Compliance
will not be required for Sec. 64.1200(l)(2) until after approval by
OMB and the reassigned numbers database administrator (Administrator)
is ready to begin accepting reports of the data collected in accordance
with Sec. 64.1200(l)(1). The Commission will publish another document
in the Federal Register announcing the compliance date for the
requirements contained in Sec. 64.1200(l)(2).
This is a summary of the Commission's Advanced Methods to Target
and Eliminate Unlawful Robocalls, Second Report and Order (Order),
document FCC 18-177, adopted on December 12, 2018, and released on
December 13, 2018, in CG Docket No. 17-59. The Commission previously
sought comment on these issues in Advanced Methods to Target and
Eliminate Unlawful Robocalls, Second Further Notice of Proposed
Rulemaking (Second Further Notice), published at 83 FR 17631, April 23,
2018. The full text of the Order is available for public inspection and
copying via ECFS and during regular business hours in the FCC Reference
Information Center, Portals II, 445 12th Street SW, Room CY-A257,
Washington, DC 20554. It and any subsequently filed documents may also
be found by searching ECFS at http://apps.fcc.gov/ecfs/ (insert CG
Docket No. 17-59 into the proceeding block). To request materials in
accessible formats for people with disabilities (Braille, large print,
electronic files, audio format), send an email to [email protected] or
call CGB at (202) 418-0530 (voice), (202) 418-0432 (TTY) or (844) 432-
2275 (videophone).
Congressional Review Act
The Commission sent a copy of the Order to Congress and the
Governmental Accountability Office pursuant to the Congressional Review
Act, see 5 U.S.C. 801(a)(1)(A).
Final Paperwork Reduction Act of 1995 Analysis
The Order contains new or modified information collection
requirements. The Commission, as part of its continuing effort to
reduce paperwork burdens, will invite the general public to comment on
the information collection requirements contained in document FCC 18-
177 as required by the Paperwork Reduction Act PRA of 1995, Public Law
104-13. In addition, the Commission notes that, pursuant to the Small
Business Paperwork Relief Act of 2002, Public Law 107-198, 44 U.S.C.
3506(c)(4), the Commission previously sought comment on how the
Commission might ``further reduce the information burden for small
business concerns with fewer than 25 employees.''
Synopsis
I. Second Report and Order
1. In the Order, the Commission takes another action to curb
unwanted telephone calls by addressing calls to reassigned phone
numbers. The problem occurs when a caller tries to reach a consumer who
expects a call but, unbeknownst to the caller, has disconnected the
number. That number is often reassigned to a new consumer, who then
receives an unwanted call meant for the prior consumer--and all too
often multiple unwanted calls when, for example, the consumer misses
the call or chooses to not to answer it. As a result, the previous
consumer is deprived of expected calls. In addition, unwanted calls
reduce callers' operational efficiency and effectiveness, while
subjecting them to potential liability for alleged violations of the
Telephone Consumer Protection Act (TCPA).
2. Today the Commission addresses this problem by establishing a
single, comprehensive database that will contain reassigned number
information from each provider that obtains North American Numbering
Plan (NANP) U.S. geographic numbers. It also will include toll free
numbers. The database will enable any caller to verify whether a
telephone number has been reassigned before calling that number.
A. Aging Period
3. The Commission establishes a minimum aging period of 45 days for
all numbers. The Commission concludes that 45 days is an appropriate
aging period because the Commission allows 31 days to ensure each
month's permanent disconnects are in the database before a number is
reassigned and an additional two-week buffer to ensure consumers are
fully protected.
B. Database Information, Access, and Use
4. The Commission finds that the database needs only the date of
the most recent permanent disconnection of a particular number in order
to enable a caller to determine whether that number has been
permanently disconnected since a date provided by the caller. All
legitimate callers should have the telephone number associated with the
consumer they are attempting to reach and either the date they
contacted that consumer or the date on which the caller could be
confident that the consumer could still be reached at that number. The
Commission believes that this minimal amount of information strikes the
correct balance between not overly burdening reporting providers
[[Page 11227]]
while still offering callers the necessary functionality.
5. When a caller queries the database using a U.S. NANP number and
a date, the database must provide a response of ``yes'', ``no'', or
``no data'' to explain whether the number has been reassigned (or more
accurately, permanently disconnected) since the date provided. The date
may be any past date on which the caller reasonably is certain that the
consumer the caller intends to reach could in fact be reached at that
number. For example, a caller might select the date on which it last
spoke to the consumer at that number or the date the consumer last
updated his contact information.
6. The Commission concludes, consistent with its existing number
use reporting requirements, that the obligation to provide this
information will be on all reporting carriers as defined in its
numbering rules, which include wireless, wireline, and interconnected
VoIP providers that obtain numbers from the North American Numbering
Plan Administrator (NANPA). The data must be comprehensive because any
exclusions will leave both callers and consumers vulnerable to calls
misdirected to reassigned numbers. The mandatory reporting is necessary
because the voluntary reporting alternative would yield data no more
comprehensive than existing resources because not enough providers
would voluntarily report.
7. The Commission requires reporting carriers as defined in Sec.
52.15(f)(2) of its rules, including those providers that receive their
numbering resources indirectly, to provide to the database information
about number disconnections. The Commission concludes, however, that
these providers should be able to delegate the task of reporting to the
provider that receives the numbering resources directly from the NANPA
or Pooling Administrator.
8. The Commission also includes toll free numbers in the reassigned
numbers database. Calls to reassigned toll free numbers pose a problem
to callers who waste time calling an unintended recipient and
recipients who are responsible for paying the toll charge.
9. The obligation to report the permanent disconnect status of toll
free numbers will be on the Toll Free Numbering Administrator. Toll
free numbers are administered separately from non-toll-free numbers by
the Toll Free Numbering Administrator. The Toll Free Numbering
Administrator assigns toll free numbers to Responsible Organizations
and, unlike the NANPA in relation to non-toll-free numbers, is uniquely
positioned to have real-time visibility into each toll free number's
disconnection status. The Commission directs the Toll Free Numbering
Administrator to revise its Service Management System tariff as
appropriate to embody this responsibility of the Toll Free Numbering
Administrator to report the disconnect status of toll free numbers to
the reassigned numbers database, as set forth herein.
10. The Commission takes three steps to ensure that the data
contained in the Reassigned Numbers Database are used appropriately and
accessible to the widest possible array of users. First, the Commission
follows the practice of data minimization--the database will not
contain information about subscribers other than the most recent date
of permanent disconnections. Second, the Commission limits the data
available to any individual caller to a ``yes'', ``no'', or ``no data''
in response to a particular query. And third, the Commission requires
callers to certify the purpose for which they are using the database.
11. The Commission believes that establishing a database that
returns only a ``yes'', ``no'', or ``no data'' response to queries best
protects consumer privacy and providers' commercially sensitive
information because callers will not have access to the underlying
data.
12. In addition, the database will be available only to callers who
agree in writing that the caller (and any agent acting on behalf of the
caller) will use the database solely to determine whether a number has
been permanently disconnected since a date provided by the caller for
the purpose of making lawful calls or sending lawful texts. The
Administrator will obtain this certification from each new user during
the enrollment process and before allowing a new user to access the
database.
13. Finally, the Commission takes steps to promote the
accessibility of the database to the widest array of possible users.
Recognizing that callers of all sizes and levels of sophistication may
choose to use the database, the Commission requires the database to
offer the ability to process low-volume queries (e.g., via a website
interface), as well as to support high-volume queries (e.g., via batch
process and/or standardized application programming interfaces or other
protocols). In addition, some callers might use a third-party
contractor to scrub their calling lists or to provide the capability to
place autodialed or prerecorded or artificial voice calls. It must be
possible for these third-party contractors to use it as the agent of
their client callers.
C. Database Administration
14. The Commission agrees with the vast majority of commenters that
a single, centralized database is the preferable option. Keeping
administration of the database under the Commission's direct oversight
enables the Commission to better monitor operations and address any
future issues.
15. The Commission's approach has the universal benefit of reducing
transaction costs by providing a single point of contact both for
providers to report reassigned number information and for callers to
query that information. Under this approach, providers will avoid the
costs of having to enter arrangements with multiple data aggregators
and of establishing mechanisms for transmitting that data to each
aggregator, which might have differing technical needs.
16. The Commission concludes that it is in the public interest for
the reassigned numbers database to be administered by an independent
third party administrator chosen under a competitive bidding process.
As the Commission stated when it previously declined to act as the
NANPA, no government agency has the resources to perform both
regulatory and administrative functions regarding numbering resources
effectively. In contrast, the Administrator, like the NANPA, will be
well situated to administer a reassigned numbers database because it
will be an independent, non-governmental entity that must meet strict
competitive neutrality requirements.
17. The Commission may be able to achieve operational and cost
efficiencies by merging the administration of the reassigned numbers
database with the already consolidated NANPA and Pooling Administrator
functions under a single contract and a single administrator. The
current NANPA meets the Commission's selection requirements as it is
independent and was selected previously pursuant to a competitive
bidding process. The Commission expects that leveraging the existing
reporting and administration mechanisms between providers and the
numbering administrators will result in only a small, incremental
burden resulting from reporting to the Administrator the date of the
most recent permanent disconnection for each number. The Commission
will therefore seek to procure a contract that consolidates the
Administrator's functions with the present NANPA and
[[Page 11228]]
Pooling Administrator functions as soon as reasonably practicable.
18. The Commission requires each provider to report to the
Administrator for inclusion in the database the date of the most recent
permanent disconnection for each number allocated to or ported to the
provider. This is all the data that is necessary for the Administrator
to be able to provide a response of ``yes'', ``no'', or ``no data'' to
queries of whether a number has been permanently disconnected since a
date chosen by the caller making the query.
19. Using the date of permanent disconnection in this context
reduces the potential that callers will needlessly expend resources
attempting to call the number, and the lead time between disconnection
and reassignment reduces the likelihood that the consumer to whom the
number is reassigned will receive calls intended for the prior
consumer. It also minimizes the amount of information that providers
must report, minimizes the complexity and size of the database,
minimizes the types of inquiries the Administrator must facilitate, and
minimizes the volume of data that must be supplied in response to
queries.
20. Definition of Permanent Disconnection. For this purpose, the
Commission defines ``permanent disconnection'' as occurring when a
subscriber permanently has relinquished a number, or the provider
permanently has reversed its assignment of the number to the subscriber
such that the number has been disassociated with the subscriber for
active service in the service provider's records. Permanently
disconnected numbers therefore do not include instances where the phone
number is still associated with the subscriber, such as when a
subscriber's phone service has been disconnected temporarily for non-
payment of a bill or when a consumer ports a number to another
provider. A ported number remains assigned to and associated with the
same consumer even though a different provider serves the consumer
after the number is ported.
21. The Commission requires providers to report data to the
Administrator on the 15th day of each month. The Commission believes
that monthly reporting properly balances the burden placed on providers
with the need for callers to obtain timely information. Moreover, the
Commission concludes that more frequent reporting is unnecessary
because the Commission also establishes a minimum aging period of 45
days, which will ensure that the database reflects current permanent
disconnection information.
22. The Commission requires reporting providers to keep accurate
and complete records associated with the permanent disconnections of
their subscribers on a going-forward basis as soon as this information
collection becomes effective, regardless of when the reassigned numbers
database is launched. Requiring this recordkeeping before the
reassigned numbers database is launched will ensure that reporting
providers are appropriately tracking and have available the information
they will need to update the database once it has launched, as well as
a set of initial data spanning some period of time to make it more
useful from launch.
23. In order to ease the burden on small providers, the Commission
will permit six additional months for them to begin maintaining and
reporting data to the Administrator. A limited extension of time is
appropriate for these providers because they have limited staffing
resources and may require additional time to make any necessary system
changes to track and report permanent disconnections. The Commission
directs CGB to separately announce the effective dates for smaller
reporting providers when it announces the effective dates for larger
reporting providers.
24. The Commission sets the threshold for determining which
providers qualify for the six-month delay as those providers with
100,000 or fewer domestic retail subscriber lines as reported on their
most recent Forms 477, aggregated over all the providers' affiliates.
The Commission has used this threshold with regard to other
recordkeeping, retention, and reporting requirements, including in the
Rural Call Completion Order.
25. The Commission declines, however, to further limit the
reporting requirement for small providers, either by eliminating the
obligation or by requiring less frequent reporting than larger
providers. All providers, including small providers, are already
required to report number usage information to the NANPA, albeit on a
less frequent basis. Regardless of the size of the provider, the burden
of compiling and reporting the date of permanent disconnection for NANP
numbers each month is incremental and small compared to their overall
reporting requirements. The Commission does not believe that this
incremental burden is so significant as to outweigh the need for
accurate and comprehensive data, nor does the Commission believe that
the monthly reporting is overly onerous, as it is not likely to require
small providers to implement new billing systems or otherwise to incur
substantial additional costs.
D. Costs and Cost Recovery
26. The Commission believes that, over the long term, callers
should pay for the database. Thus, the Administrator's costs to operate
the database following its establishment will be recovered through
usage charges that the Administrator will collect from callers that
choose to use the database. This is consistent with the manner in which
the Toll Free Numbering Administrator recovers its costs. Like the
Responsible Organizations that benefit directly from the toll free
numbers database, callers that choose to use the reassigned numbers
database benefit directly by reducing their potential liability for
unlawful calls to reassigned telephone numbers and reducing operational
costs with more efficient calling. Also, like Responsible
Organizations, callers that use the database are a clearly identifiable
user group from which the Administrator can assess usage charges and
that in turn can spread those costs across their customer bases. In
contrast, costs for more generalized number administration performed by
NANPA cannot be directly associated with any particular user group that
could be billed for those costs and therefore are billed to providers
that in turn recover those costs through charges for the services they
provide. The Commission therefore concludes that it is most
economically efficient and rational for the Administrator to recover
reassigned numbers database costs from callers that choose to use the
database.
27. The costs to establish the database and create the query
functionality will be recovered using the same type of mechanism that
is currently used to recover the NANPA's costs. Thus, database creation
costs will be included along with the other numbering administration
costs the Billing and Collection Agent bills to and collects from
providers. The Commission adopts this approach to establish the
database as quickly as possible using the most practical means of
funding considering that it is not possible to recover these costs
through database usage charges before the database is created.
28. The Commission declines to seek Congressional funding for the
database. Seeking an appropriation is unnecessary because the
Commission already has authority to create the database. Further,
seeking an appropriation would take additional time and therefore would
delay launch of the database to the detriment of consumers and callers
alike.
[[Page 11229]]
29. Just as providers recover other numbering administration costs,
providers will be able fully to recover the costs they pay for creation
of the database and query functionality, but no more. Because providers
have no direct means of recovering these costs from callers that use
the database, the Commission therefore will require the Administrator
to set usage charges at a level designed to recover current operating
costs and, over time, the database creation costs paid by providers.
30. The Commission agrees with commenters asserting that providers'
internal costs of tracking and reporting permanent disconnection dates
to the Administrator will be routine--and minimal--operational expenses
similar to those expenses providers already incur to report other
number usage data. In addition, providers have no means of recovering
these costs directly from callers that choose to use the database and,
because these are costs internal to providers, they cannot be recovered
through the offset mechanism that enables them to recover the database
creation costs they pay. Accordingly, the Commission anticipates that
providers will recover these costs in their existing fees and charges.
31. The Toll Free Numbering Administrator similarly lacks a means
to directly bill callers for its internal reporting costs. Therefore,
it may recover these costs in the same manner as other costs of toll
free number administration.
E. Safe Harbor
32. The Commission sought comment in the Second Further Notice on
whether to adopt a safe harbor from TCPA liability for those callers
that choose to use a reassigned numbers database. It adopts such a safe
harbor for callers that rely on the database to learn if a number has
been reassigned.
33. Nearly all commenters argue that if a reassigned numbers
database is implemented, callers that make use of the database should
not be subject to liability if the database reports that a number has
not been reassigned and nevertheless it has been, and so a caller
inadvertently calls a new consumer. The Commission agrees with consumer
groups that this safe harbor should not be broadly applied to all calls
made by a caller who uses the database without regard to whether the
caller reasonably relied on the database when making a particular call.
Indeed, the record reflects concerns about good-faith callers being
subject to liability for TCPA violations, a threat that can cause
callers to be overly cautious and stop making wanted, lawful calls out
of concern over potential liability for calling a reassigned number.
The Commission share these concerns. And it finds that a safe harbor
will incent greater usage, thereby further protecting more consumers
from unwanted calls.
34. Once the database becomes operational, callers that wish to
avail themselves of the safe harbor must demonstrate that they
appropriately checked the most recent update of the database and the
database reported ``No'' when given either the date they contacted that
consumer or the date on which the caller could be confident that the
consumer could still be reached at that number. Callers bear the burden
of proof and persuasion to show that they checked the database before
making a call.
35. The Commission disagrees with commenters seeking a more
expansive safe harbor. For example, it declines to expand the period of
time between checking the database and making a call beyond the most
recent update to the database. This time period properly balances the
burden placed on callers with the privacy interests of consumers.
Moreover, by setting the minimum aging period at 45 days above, the
Commission ensures that a caller that accesses the most recent update
to the database will not inadvertently call a reassigned number unless
the database is in error.
36. The Commission also declines to extend the safe harbor to other
commercial databases. The record shows that such databases collect
different information over a less-than-comprehensive set of consumers,
and so the Commission is not in a position to assess whether any such
database would merit a safe harbor.
37. Finally, the Commission disagrees with the one commenter who
contends that the Commission lacks the statutory authority to adopt a
safe harbor. First, it agrees with commenters that section 227 of the
Communications Act of 1934 (the Act) supplies the Commission the
authority to establish a safe harbor. Second, it notes that the vast
majority of commenters support a safe harbor and yet only one party
states the Commission lacks the authority to establish one. Further,
the Commission notes that the court that considered its previous safe
harbor, the D.C. Circuit in its ACA International decision, found the
Commission's previous one-call safe harbor arbitrary, but did not
question the Commission's authority to adopt a safe harbor. Indeed, the
court favorably noted the Commission's steps to establishing a
reassigned numbers database and the Commission's consideration to adopt
a safe harbor for callers that check the database as, among other
things, consistent with the Commission's past practice of taking a
``reasonable reliance'' approach when interpreting the TCPA, and by
extension, expressing no concern about the Commission interpreting the
Act to not demand the impossible of callers. Further, as with the safe
harbor afforded in the number portability context, the safe harbor here
is not an ``exemption'' from the TCPA and Commission's rules, but
rather a means to come into compliance. Otherwise, callers would be
required to do the impossible: Identify inaccurate information in an
otherwise comprehensive and timely reassigned numbers database.
F. Technical and Operational Issues
38. Commenters assert that the creation of a reassigned numbers
database involves technical and operational requirements that could
benefit from advice by the North American Numbering Council. The
Commission agrees. It believes the Council is especially well-situated
to handle matters related to this aspect of number administration
because of its prior experience and collective expertise advising the
Commission, among other things, on administration of number portability
data and numbering administration procedures and systems. The
Commission also believes that the Council can address and advise on
issues and considerations related to the Administrator collecting fees
from database users, the billing and collection from service providers
to be administered by the Billing and Collection Agent, and interaction
and coordination necessary and advisable between the Administrator and
the Billing and Collection Agent in performing these roles. The
Commission directs the Council to assess and address technical and
operational issues consistent with the discussion below and, within six
months, to report its recommendations on all of these issues to the
Commission.
39. The Council, working through its Numbering Administration
Oversight Working Group (Oversight Working Group), is to develop a
Technical Requirements Document for the reassigned numbers database for
review by the Commission. That Technical Requirements Document must
contain a single, unified set of functional and interface requirements
for technical interoperability and operational standards; the user
interface specifications and data format for service providers to
report to the Administrator; the user interfaces and
[[Page 11230]]
other means by which callers may submit queries, including providing
callers the abilities for high-volume and batch processing or to submit
individual queries; appropriate safeguards to protect the privacy and
security of subscribers, protect the database from unauthorized access,
and ensure the security and integrity of the data; and keeping records
of service provider's reporting and accounting. In reaching its
recommendations, the Council should consider the most cost-effective
way of administering the database, with the goal of minimizing costs
and burdens for all users and service providers, while ensuring that it
will fully serve the intended purpose. The Commission also directs the
Council, through the Oversight Working Group, to provide guidance on
any new or modified requirements for the Billing & Collection Agent
contract that may be advisable or necessary with the implementation and
operation of this database.
40. The Commission will refer to the Council questions of how the
fee structure should be designed and the initial amount of fees.
Specifically, the Council, through its Oversight Working Group, is to
consider technical issues surrounding how the Administrator can collect
fees from callers that use the database. How this can be best achieved
will depend in part, the Commission believes, on the user interface,
the fee structure, the Administrator's costs to operate the database,
and the amount of the fees necessary to enable providers to recover
their costs of reassigned numbers database costs they pay to the
Administrator. Therefore, the Council is to consider how to structure
fees and the amount of such fees. Given the success of the National Do-
Not-Call Registry and support in the record for using its fee structure
as a model, the Council is to consider using that or a similar fee or
subscription structure. The Council is also to consider using a per-
query fee structure, which may be better suited to the manner in which
this database will accept and respond to queries about individual
numbers and may also be more appropriate for small-volume callers. The
Commission does not, however, now require use of any particular fee
structure.
41. The Council will, within six months from the release of the
Order, issue its recommendations for implementing and operating the
reassigned numbers database, including a Technical Requirements
Document, and recommended fee structure, and fee amounts. The Council
will meet to discuss these issues and vote on whether to approve the
recommendations of its Oversight Working Group, subject to any
amendments the Council may consider appropriate. The Commission directs
the Wireline Competition Bureau (WCB) in coordination with CGB to seek
public comment on the Technical Requirements Document. The Commission
expects the Council's guidance, as well as any relevant comments
submitted by interested parties, will be incorporated into any
contracting decisions.
G. Costs and Benefits
42. The Commission concludes that the benefits of this database
outweigh the costs imposed.
43. A comprehensive database has not been created in the absence of
Commission action. Until now, the Commission's rules have not required
providers to report data to this extent and frequency about
disconnections or reassignments, or otherwise to make this data
available. There is no comprehensive solution at present and it is
evident that the marketplace is highly unlikely to create one on its
own. Moreover, no provider is capable of offering a comprehensive
resource because each provider has access only to its own reassigned
numbers data. Similarly, the Commission does not anticipate that data
aggregators will provide an equivalent resource because doing so would
require each aggregator to contract with every provider to obtain
comprehensive data. The transaction costs of negotiating and
administering thousands of bilateral contracts, and of incenting the
providers to provide such data voluntarily, would be prohibitive.
Further, because providers do not all keep records in the same manner
there is no certainty that the technical arrangements necessary to
obtain the data would be uniform across all providers or that the data
could be obtained within the same timeframes from all providers. If
updates were made at different times, callers would be forced to submit
queries before each call, which greatly increases transaction costs
compared to the monthly checks enabled by this database.
44. The broad support among callers and consumer groups
representing the interests of called parties--the two groups that
ultimately will pay for this database and enjoy its benefits--therefore
amply demonstrates that the benefits outweigh the costs. The Commission
finds that both of these groups are rational economic actors that have
estimated costs and benefits in deciding to support this database.
G. Legal Authority
45. As the Commission recently has with regard to other aspects of
number administration, it finds that sections 251(e) and 201 of the Act
provide ample legal authority for the requirements it adopts today.
Section 251(e) of the Act gives the Commission, ``authority to set
policy with respect to all facets of numbering administration in the
United States.'' Section 201 of the Act authorizes the Commission to
ensure that interstate rates are just and reasonable and to ``prescribe
such rules and regulations as may be necessary in the public interest
to carry out the provisions of this Act.''
46. Section 251(e)(1) of the Act plainly gives the Commission
authority to designate administrators for purposes of numbering
administration. Databases long have been a tool used in numbering
administration. Congress in enacting the Act and the Commission in
various proceedings have recognized that fair and impartial access to
numbering resources is critical because ``telephone numbers are the
means by which telecommunications users gain access to and benefit from
the public switched telephone network.'' The purpose of telephone
numbers is to enable callers to place calls to the person they wish to
reach. These requirements promote that purpose.
47. Certain aspects of numbering administration long have been
conducted by carriers themselves as part of the services they offer or
provided on their behalf by the various numbering administrators, or
both. For example, carriers and their numbering-related systems play a
substantial role in local number porting in conjunction with the
central role of the Local Number Portability Administrator and its NPAC
system, and, in toll free call numbering, some carriers operate their
own Service Control Point databases (updated periodically with data
from a database operated by the Toll Free Number Administrator) for
servicing real-time per-call toll free call routing queries from
originating carriers. The Commission similarly finds it is just and
reasonable, in accordance with section 201 of the Act, for the
Administrator to collect fees for using the database.
Final Regulatory Flexibility Analysis
48. As required by the Regulatory Flexibility Act of 1980, as
amended, (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was
incorporated into the Second Further Notice. The Commission sought
written public comment on the proposals in the Second Further Notice,
including
[[Page 11231]]
comment on the IRFA. The comments received are discussed below. The
Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.
Need for, and Objectives of, the Proposed Rules
49. In the Order, the Commission establishes a single,
comprehensive database that will contain reassigned number information
about toll free numbers and from each voice provider that obtains North
American Numbering Plan (NANP) U.S. geographic numbers. It also will
include toll free numbers. The Commission's approach solves a
longstanding problem for consumers and callers alike, and does so in a
way that minimizes burdens on voice providers and callers.
Summary of Significant Issues Raised by Public Comments in Response to
the IRFA
50. In the Second Further Notice, the Commission solicited comments
on how to minimize the economic impact of the new rules on small
businesses. It received one comment directly addressing the IRFA from
NTCA. NTCA argues that the IRFA was deficient because the measures on
which the Commission sought comment were vague and lacked specificity.
51. The Commission also received several comments addressing small
business concerns. One commenter requested that small providers be
excluded from any mandatory reporting requirement. In addition, it
received a number of comments from small business callers that argued
that access to reassigned numbers database should be affordable. None
of the other commenters identified any areas where small businesses
would incur a particular hardship in complying with the rules.
Response to Comments by the Chief Counsel for Advocacy of the Small
Business Administration
52. The Chief Counsel for Advocacy of the Small Business
Administration (SBA) did not file any comments in response to the
proposed rules in this proceeding.
Description and Estimate of the Number of Small Entities to Which the
Rules Will Apply
53. The recovery of costs by reporting carriers from callers that
use the reassigned numbers database apply to a wide range of entities,
including potentially all entities that use the telephone to advertise.
Thus, it expects that the costs associated with the voluntary usage of
the reassigned numbers database could have a significant economic
impact on a substantial number of small entities. For instance, funeral
homes, mortgage brokers, automobile dealers, newspapers and
telecommunications companies could all be affected.
54. In 2013, there were approximately 28.8 million small business
firms in the United States, according to SBA data. Determining a
precise number of small entities that would be subject to fees to use
the reassigned numbers database is not readily feasible. A list of the
types of such small entities affected includes: Wired
telecommunications carriers, local exchange carriers, incumbent local
exchange carriers, competitive local exchange carriers, shared-tenant
service providers, interexchange carriers, cable system operators,
other toll carriers, wireless telecommunications carriers (except
satellite), satellite telecommunications providers, all other
telecommunications, toll resellers, and local resellers.
Description of Projected Reporting, Recordkeeping, and Other Compliance
Requirements for Small Entities
55. This Order adopts rules to require the Toll Free Numbering
Administrator and all reporting carriers as defined in the Commission's
numbering rules, to report information on a monthly basis to a database
whereby a caller can determine whether a number has been permanently
disconnected since a date provided by the caller. With the exception of
delayed implementation for reporting carriers with 100,000 or fewer
lines, these changes affect small and large companies equally, and
apply equally to all of the classes of regulated entities identified
above. The database will be available only to callers who agree in
writing that the caller (and any agent acting on behalf of the caller)
will use the database solely to determine whether a number has been
permanently disconnected since a date provided by the caller for the
purpose of making lawful calls or sending lawful texts. The
Administrator will obtain this certification from each new user during
the enrollment process and before allowing a new user to access the
database.
56. The Order modifies Sec. Sec. 52.15(f)(1)(ii) and 52.103(d) of
the Commission's rules to establish a minimum aging period of 45 days
for all aging numbers. Thus, neither a toll free number nor a U.S. NANP
geographic number may be reassigned until at least 45 days after the
date it was permanently disconnected.
Steps Taken To Minimize Significant Economic Impact on Small Entities,
and Significant Alternatives Considered
57. The Commission will permit providers with 100,000 or fewer
subscriber lines as reported on their most recent Forms 477, aggregated
over all the providers' affiliates, six additional months to begin
maintaining and reporting data to the Administrator. The Commission
directs the CGB to separately announce the effective dates for smaller
reporting providers when it announces the effective dates for larger
reporting providers.
58. The Commission requires providers to report to the
Administrator data on the 15th day of each month. It believes that
monthly reporting properly balances the burden placed on providers with
the need for callers to obtain timely information. The Commission
concluded that alternatives, such as requiring real-time reporting,
could impose disproportionate costs on small businesses and could be
technically difficult to accomplish.
59. The Commission agrees with commenters in the proceeding that
access to the reassigned numbers database should be affordable, and has
structured the database accordingly. The information collected is
minimal: A telephone number and the most recent permanent disconnection
date. This reduces the cost of the database by minimizing the
complexity and size of the database, minimizing the types of inquiries
the Administrator must facilitate, and minimizing the volume of data
that must be supplied in response to queries.
60. The Commission agrees with commenters that a safe harbor will
incent greater usage, thereby further protecting more consumers from
unwanted calls. One alternative the Commission considered was not to
adopt a safe harbor. That alternative could make compliance with the
TCPA's prohibition almost impossible for small businesses. It also
considered, but rejected, a more expansive safe harbor because it
believes requiring callers to access the most recent update to the
database prior to make a call properly balances the burden placed on
callers with the privacy interests of consumers. Finally, the
Commission declined to extend the safe harbor to other commercial
databases.
Federal Rules Which Duplicate, Overlap, or Conflict With, the
Commission's Rules
61. None.
[[Page 11232]]
Ordering Clauses
Pursuant to the authority contained in sections 4(i)-(j), 201(b),
227, and 251(e) of the Act, as amended, 47 U.S.C. 154(i)-(j), 201(b),
227, 251(e), that the Order is adopted and that Parts 52.15, 52.103,
and 64.1200 of the Commission's rules, 47 CFR 52.15, 52.103, 64.1200,
are amended. The North American Numbering Council shall, by June 13,
2019, address in a report to the Commission the technical and
operational issues consistent with the Order, and that CGB, in
conjunction with WCB, shall coordinate with the Council on those issues
to ensure that they are addressed fully and timely.
Lists of Subjects
47 CFR Part 52
Communications common carriers, Telecommunications, Telephone.
47 CFR Part 64
Communications common carriers, Reporting and recordkeeping
requirements, Telecommunications, Telephone.
Federal Communications Commission.
Marlene Dortch,
Secretary.
Final Rules
For the reasons discussed in the preamble, the Federal
Communications Commission amends 47 CFR parts 52 and 64 as follows:
PART 52--NUMBERING
0
1. The authority citation for part 52 continues to read as follows:
Authority: 47 U.S.C. 151, 152, 153, 154, 155, 201-205, 207-209,
218, 225-227, 251-252, 271, 332, unless otherwise noted.
0
2. Amend Sec. 52.15 by revising paragraph (f)(1)(ii) and adding
paragraph (f)(8) to read as follows:
Sec. 52.15 Central office code administration.
* * * * *
(f) * * *
(1) * * *
(ii) Aging numbers are disconnected numbers that are not available
for assignment to another end user or customer for a specified period
of time. Numbers previously assigned to residential customers may be
aged for no less than 45 days and no more than 90 days. Numbers
previously assigned to business customers may be aged for no less than
45 days and no more than 365 days.
* * * * *
(8) Reports of Permanently Disconnected Numbers--Reporting carriers
must report information regarding NANP numbers in accordance with Sec.
64.1200(l) of this title.
* * * * *
0
3. Amend Sec. 52.103 by revising paragraph (d) to read as follows:
Sec. 52.103 Lag times.
* * * * *
(d) Disconnect Status. Toll free numbers must remain in disconnect
status or a combination of disconnect and transitional status for no
less than 45 days and for no more than 4 months. No requests for
extension of the 4-month disconnect or disconnect and transitional
interval will be granted. All toll free numbers in disconnect or
transitional status must go directly into the spare or unavailable
category upon expiration of the 4-month disconnect or transitional
interval. A Responsible Organization may not retrieve a toll free
number from disconnect or transitional status and return that number
directly to working status at the expiration of the 4-month disconnect
or transitional interval,
* * * * *
PART 64--MISCELLANEOUS RULE RELATING TO COMMON CARRIERS
0
4. The authority citation for part 64 continues to read as follows:
Authority: 47 U.S.C. 154, 201, 202, 217, 218, 220, 222, 225,
226, 227, 228, 251(a), 251(e), 254(k), 262, 403(b)(2)(B), (c), 616,
620, 1401-1473, unless otherwise noted.
0
5. Amend Sec. 64.1200 by adding paragraphs (l) and (m) to read as
follows:
Sec. 64.1200 Delivery restrictions.
* * * * *
(l) A reporting carrier subject to Sec. 52.15(f) of this title
shall:
(1) Maintain records of the most recent date each North American
Numbering Plan (NANP) telephone number allocated or ported to the
reporting carrier was permanently disconnected.
(2) Beginning on the 15th day of the month after the Consumer and
Governmental Affairs Bureau announces that the Administrator is ready
to begin accepting these reports and on the 15th day of each month
thereafter, report to the Administrator the most recent date each NANP
telephone number allocated to or ported to it was permanently
disconnected.
(3) For purposes of this paragraph (l), a NANP telephone number has
been permanently disconnected when a subscriber permanently has
relinquished the number, or the provider permanently has reversed its
assignment of the number to the subscriber such that the number has
been disassociated with the subscriber. A NANP telephone number that is
ported to another provider is not permanently disconnected.
(4) Reporting carriers serving 100,000 or fewer domestic retail
subscriber lines as reported on their most recent Forms 477, aggregated
over all the providers' affiliates, must begin keeping the records
required by paragraph (l)(1) of this section six months after the
effective date for large providers and must begin filing the reports
required by paragraph (l)(2) of this section no later than the 15th day
of the month that is six months after the date announced by the
Consumer and Governmental Affairs Bureau pursuant to paragraph (l)(2).
(m) A person will not be liable for violating the prohibitions in
paragraph (a)(1), (2), or (3) of this section by making a call to a
number for which the person previously had obtained prior express
consent of the called party as required in paragraph (a)(1), (2), or
(3) but at the time of the call, the number is not assigned to the
subscriber to whom it was assigned at the time such prior express
consent was obtained if the person, bearing the burden of proof and
persuasion, demonstrates that:
(1) The person, based upon the most recent numbering information
reported to the Administrator pursuant to paragraph (l) of this
section, by querying the database operated by the Administrator and
receiving a response of ``no'', has verified that the number has not
been permanently disconnected since the date prior express consent was
obtained as required in paragraph (a)(1), (2), or (3) of this section;
and
(2) The person's call to the number was the result of the database
erroneously returning a response of ``no'' to the person's query
consisting of the number for which prior express consent was obtained
as required in paragraph (a)(1), (2), or (3) of this section and the
date on which such prior express consent was obtained.
[FR Doc. 2019-05620 Filed 3-25-19; 8:45 am]
BILLING CODE 6712-01-P
