Challenges, But Few Solutions, Evident in the TCPA’s "One-Strike" Rule

There is a lot in the FCC’s July Consent Order that gave most in the collection industry pause – but of particular concern was the idea of the “one-strike” rule, and how it relates to consumer consent.

Per the FCC, “[T]he TCPA requires the consent not of the intended recipient of the call, but of the current subscriber.” While an agency may have the original consumer’s consent to contact, that doesn’t matter if the number the agency calls isn’t that consumer’s.

One problem: cell numbers are reassigned all the time. In fact, according to FCC Commissioner Ajit Pai – one of the two dissenting voices against the FCC’s Consent Order – more than 37 million numbers are reassigned every year.

Which clarifies the issue: what happens when an agency calls a number it thinks belongs to the person from whom they’ve obtained consent, only to find out that the number has been reassigned, and they are now communicating with the wrong party?

The FCC says agencies get one chance – or one strike – to get it right: “Callers who make calls without knowledge of reassignment and with a reasonable basis to believe that they have valid consent to make the call should be able to initiate one call after reassignment as an additional opportunity to gain actual or constructive knowledge of the reassignment and cease future calls to the new subscriber.”

This works well when you call the number and reach the person whom you intended to reach. It gets complicated when reality steps in.

The FCC goes on to say, in its Consent Order, “If this one additional call does not yield actual knowledge of reassignment, we deem the caller to have constructive knowledge of such.”

What does that mean? It’s an implied “Good luck!”

If an agency calls a number that it believes to belong to the consumer whom they’re attempting to contact, only to find that the number now belongs to an unrelated party, that’s it. That’s the agency’s one chance. It can now update its records that it definitely does not have the correct cell phone for that consumer.

But what if an agency calls the cell phone, and there is no answer? Or what if the outgoing voicemail message lists a name not related to the consumer whom you’re attempting to contact?

The FCC is less clear here, except in this: an agency has used its one chance – in effect, has taken one strike – with no information, really, to help.

In the case of non-matching outgoing voicemail announcements, agencies should treat that as if they had reached a live party who told them that the number they reached no longer belongs to the previous subscriber.

In the case where the live person answering is not the consumer, you can attempt to receive information from the new subscriber.

In the case where there is no answer, though, and no voicemail message or any other explicit indication that you may be reaching out to the wrong subscriber, there is, at this time, no safe harbor.

Some things that can help – with no guarantee of success or protection:

• Subscribing to a database of reassigned numbers
• Scrubbing contact lists against those databases before calls are made
• Training your collectors to confirm the identity of every individual who answers a call
• Not disconnecting from a call when it goes to voicemail in the hopes of gaining additional subscriber information

This specific component of the FCC’s Consent Order is currently facing several legal challenges. But until an answer comes from these, agencies find themselves with few fail-safe solutions.