Derek: Hi, everyone.
Derek Johnson with the tatango.com.
I’m here at Innovista Law, home of the TCPA Defense Force.
And I’m speaking to TCPA Attorney, David Carter.
So in the TCPA or at least I’ve heard in the TCPA, there’s a thing called the One-Call
Safe Harbor.
I don’t know what the heck that means.
So I’m relying on you to explain.
Is this in the TCPA and what kind of impact does this have?
David: Sure.
So the One-Call Safe Harbor was actually created by the Federal Communications Commission in
2015.
Derek: Oh, so it’s not on the original documents?
Okay.
David: It’s not, in the 2000.
Excuse me, it’s not in the 1991 Act that was passed by Congress.
It’s something that’s a much more recent addition to the TCPA.
And the One-Call Safe Harbor relates to an issue that had become a pretty hot source
of litigation, which is if you have had consent to call a telephone number or send text messages
to a telephone number and think about wireless numbers, right, in particular, someone has
a wireless phone they turn the phone back into AT&T or Verizon.
Derek: Okay.
They don’t want that number anymore?
Okay.
David: They don’t want the phone anymore.
They don’t want the number anymore.
Either they switch services or maybe they decided to move to a different part of the
country.
Derek: New phone number.
David: And decided, “I don’t need that phone number with me,” whatever the case
may be.
So they turn the phone back in.
What typically happens is the phone number gets disconnected.
And then it goes through what we refer to in the industry as an aging process, where
it just sits on the sidelines for a while.
Derek: Nobody uses it?
David: No one uses it.
And then eventually it gets back into the rotation.
So some new user comes into the store and gets a wireless service from them.
And they’re gonna get that phone number.
Derek: The old person’s phone number?
Okay.
David: Old person’s phone number that’s been sitting on the sidelines.
And the thing is, is the time period in which it’s been sitting on the sidelines, maybe
30 days, maybe 60 days, sometimes I’ve heard it’s even shorter I think you.
Derek: Yup, two days with some carriers, yup.
David: Yeah.
And so when that happens, you suddenly have a new person holding onto this phone with
that old person’s phone number.
And that old person had subscribed to, a number of, text messaging.
Derek: Like different brands and yup.
David: Different brands and so they were getting their coupons and their discount codes and
getting those text messages and they wanted to get them, right?
But the new person maybe has no relationship with that brand, does not wanna receive those
messages, right?
Derek: Yup.
And they’re still opted-in on the software and the brand because maybe there’s not
a communication between the wireless carriers to tell them that?
Okay.
David: Correct, exactly.
And so that’s the issue.
And so what was happening is the new person with a phone number would start, keep getting
these text messages.
Derek: From all these random brands that they didn’t sign up for.
David: Yes.
And so then they would bring claims against those brands and say, “I didn’t give you
consent, right?
The person that had the phone number before had given you consent but you don’t have
my consent, I’m the current person assigned to the number.”
And so it was generating a lot of litigation, not generally because of some like person
that just inadvertently got the phone number and started receiving the messages what you
actually had occurring is and you still have, occurring, is, professional plaintiffs.
Professional class action attorneys will often buy a number of phones specifically to get
the phones that have the reassigned numbers.
Derek: So they’re doing this on purpose, essentially?
David: Some are some are not, it’s a mixed bag you can’t.
By no means could you say everyone is doing this intentionally.
But it’s become an issue there.
And so what the FCC did in 2015 is they adopted the One-Call Safe Harbor.
And they said, “Look, we’re gonna give you if you’re texting or making phone calls,
marketing phone calls to a number, you can call them one time.
No harm, no foul.”
Derek: Okay.
David: Right.
Derek: So you are not gonna be fined or I guess, sued, by a consumer, the 500, the $1,500
per message?
David: Right.
Derek: That one you’re safe from.
I guess safe harbor.
David: Safe harbor, right.
Derek: Okay.
That makes sense.
David: It’s your one chance to figure out that the number has been assigned to a different
customer.
And therefore, you should take them off your list, stop calling, or stop texting.
Derek: Okay.
David: It continues to be a pretty big issue in the industry though because there is not
currently a comprehensive database or some databases that try to capture when the numbers
are reassigned to help people proactively take them off and not even get to…
Derek: Yeah, that stage.
David: …the One-Call Safe Harbor.
If you can take them off before that happens that’s great.
Otherwise, you have the one call to try to figure that out.
There are still a lot of issues in the industry about this topic.
And people are working on some creative solutions.
The FCC under the new chairman Pai is proposing to potentially adopt some other rules that
will help companies get access to the information they need to avoid.
Derek: So before it actually gets reassigned to someone removing them from a list or a
database?
David: Correct.
That’s the best way, right?
If you can find out from the carriers this number’s been terminated, it’s not gonna
be used, take them off at that point in time before it ever gets reassigned.
And you don’t have to worry about this One-Call Safe Harbor business.
That’s your best bet.
One-Call Safe Harbor is kind of a backup option.
Derek: Okay.
On the phone calling side, I guess, I get it.
You have one call.
So they pick up and, “I’m calling for David,” “No, it’s John.”
I go, “Oh, sorry.”
David: I’m not there.
That’s not the person anymore.
Derek: And then I remove them from the list.
David: Correct.
Derek: Now, what happens if you don’t reach that person or you reached their voicemail
and maybe they don’t say their name, is it just a lot of gray area there?
David: Yeah, I think that that’s been the concern is prior to the FCC adopting the One-Call
Safe Harbor there was a gray area about whether consent carried over and whether that you
could even be liable at all.
Derek: Okay.
David: So when the FCC clarified it by creating the One-Call Safe Harbor they also took away
some potential arguments that people had about, “Well, maybe I’m not…
I shouldn’t even be liable because I already, I, at least, had consent for the phone number.”
Derek: Okay.
The phone number itself, not the consumer?
David: Correct.
And so in 2015, the FCC said, “Nope, you really have to have consent from the current
subscriber.”
Derek: Okay, the owner of the phone number now?
David: Right.
Derek: Okay.
David: And you have the one call to figure that out.
So there continues to be this kind of discussion in the industry and that’s why the proposed,
like the proposal to look at some additional rules or some changes, is so important.
Because there continues to be a question about this that really, can you get 100% of this
right, and?
Derek: Okay.
Well, yeah, like the voicemail.
And if they don’t pick up, what happens?
David: Yeah.
Derek: Now most of our viewers are text message marketers.
David: Right.
Derek: It seems like the One-Call Safe Harbor, well, I guess it applies to text message marketing.
Does it even help text message marketers?
David: Well, from a lawyer’s perspective, what I can say is, it applies.
It’s available to text message marketers.
And then I guess I’d have to turn your question back to you, Derek.
And ask you from your experience, working with companies, does the One-Call Safe Harbor
really provide value to text message marketing companies and would love to hear your thoughts
on that.
Derek: Because essentially the One-Call Safe Harbor is for a brand to determine that the
person they originally got the opt-in, from is not the person now being text messaged.
David: Correct.
Derek: And it seems like it is not very applicable to text messaging because of the fact that
when we send a text message or a brand sends a text message using our software, they’re
not picking up the phone.
They’re not saying, “Hey, sorry, this is John.”
David: It’s a one-way communication.
Derek: Yeah.
It’s a coupon that they’re sending.
So it seems like, well, you can’t be, sued, for that one text message.
You’re gonna keep receiving future text messages unless the wireless carriers tell
the brand, the software provider that, “Hey, this is a deactivated phone number and it
could be reassigned in the future.”
David: Right.
Derek: So it seems like, well, it helps for the first text message, it is not like a phone
call, where you actually get somebody on the line and talk to them.
David: Sure.
Yeah.
And that’s consistent with my understanding.
And I think it’s also why it’s so important that the FCC is looking at some of these changes
to help address that situation.
Derek: Interesting.
Because isn’t the TCPA, isn’t it always ever-evolving?
David: Absolutely.
You have consistent…you don’t have necessarily a lot of changes happening in Congress, in
Congressional level but you have two sources of law that continue to evolve.
One the FCC has the power to adopt implementation rules, and release orders that help to clarify
parts of the TCPA.
And then you have a whole body of case law or you have cases happening across the country.
Derek: Like court cases and they’re being decided and then they get information based
off, what the decision was?
David: Correct, correct.
Derek: Okay.
David: And so all of those looking at the cases, looking at what the FCC is doing, all
of that helps to inform us about the law, what the requirements are, and how to comply.
Derek: Okay, so ever-changing.
So constantly somebody needs to be updated.
David: Yes.
Derek: And following this information, because it’s changing?
David: Right.
And the technology changes, right?
Derek: True.
David: And from our perspective as telecommunications attorneys, the thing we see consistently,
not just in the TCPA but usually the technology is three steps ahead of the law, right, the
law is always…
Derek: It seems like in this case it is almost, it’s…
David: Always struggling to catch up and trying to figure out how to adapt to the changing
environment.
Derek: Okay, interesting.
Okay, so that is the One-Call Safe Harbor, what it means in the TCPA, what it means for
phone calling and the impact it has on text message marketing.
I’m Derek Johnson with the tatango.com.
I’m here at Innovista Law with David Carter.
And we’re talking in the home of the TCPA Defense Force.
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