Calls to wrong/recycled numbers are really in the TCPAWorld news lately.
As everyone knows, a major bank was recently crushed by a certification ruling involving collections calls to wrong numbers.
The FCC’s recycled numbers database is now up and running, but people continue to question the value of the solution since data is only available to October–or perhaps February–of 2021.
(Although my friends at DNC.com serve as an agent for the RND and have data going back farther, apparently.)
Still, as I have said repeatedly, TCPA wrong number class actions remain one of the biggest risks to your enterprise. And many courts will impose strict liability on you for wrong number calls–even if it was not your fault in the least.
For instance in Elleby v Liberty U. –found here Liberty University–a court refused to grant a “good faith” defense to a caller that had relied on the consent provided by a previous user of the phone.
The Court was unmoved that Liberty had no idea the number had changed hands. Determining that the TCPA was a strict liability statute the Court found that Liberty was liable for prerecorded calls to the plaintiff’s number, despite any wrongdoing on its part.
The Court also found–unsurprisingly–that the “called party” who must provide express consent is the current subscriber of the phone, and not the “intended recipient. (I say this is unsurprising not because it is the right answer, but because it is the most common answer given by courts these days.)
While the Elleby case is likely wrongly decided–in my view the FCC definitely established a “reasonable period” safeharbor back in 2015 as the ACA Int’l case points out–with the roll out of the RND, callers should expect most courts to adopt the inflexible “strict liability rule.”
Stated differently: If you’re not using the RND you cannot expect a court to give you any sort of free pass for calling wrong numbers.
Cases like Elleby and Head continue to highlight the dangers posed by wrong number calling–especially aged leads and servicing portfolios–so it is absolutely critical that callers consider moving from prerecorded calls to live calling and texts post Facebook. Human selection systems can keep you safe, even when calling wrong numbers in many instances.
And consider the RND a critical cost of doing business!