One of the most troubling aspects of the July 10, 2015 FCC Order interpreting the TCPA is what it has to say about consent in the context of reassigned numbers. In his dissent, Commissioner Ajit Pai says that the rule “creates a trap for law-abiding companies by giving litigious individuals a reason not to inform callers about a wrong number” and calls it a “veritable quagmire of self-contradiction and misplaced incentives.” That may be one of the best descriptions of the TCPA on record, but it doesn’t exactly help us answer the core questions here: What is the rule and, perhaps more importantly, how can businesses avoid the traps being set by plaintiffs?

The FCC found that “the TCPA requires the consent not of the intended recipient of the call, but of the current subscriber.” This means that, even if the caller has valid, express consent from the intended recipient to call that individual at the number provided, the caller could be liable for a TCPA violation if the number has been reassigned. To be clear, reassignment of numbers is not exactly uncommon—more than 37 million numbers are reassigned every year, according to Commissioner Pai’s dissent. So how are businesses supposed to keep track of these reassignments? There is no national database of reassigned numbers, and it would be impractical (and imperfect) to expect customers to voluntarily provide updated contact information to every company they do business with every time they get new phone numbers.

The FCC’s solution is that businesses get one chance to get it right. The FCC found that “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.” (Emphasis added.) And if that does not give you heart palpitations, consider this: “If this one additional call does not yield actual knowledge of reassignment, we deem the caller to have constructive knowledge of such.” (Emphasis added.) How is the caller supposed to have constructive knowledge? Well, the FCC doesn’t really say—the majority speculates about possible ways the caller could learn about the reassignment, such as receiving that information from the new subscriber, hearing a voicemail from the new subscriber, hearing a disconnected tone, getting a call from the customer or subscribing to a database of reassigned numbers, but obviously none of these is guaranteed to work, and in fact, they may be easily flouted by potential litigants. Which brings us back to Commissioner Pai’s concern about the trap for law-abiding companies: A litigious individual has no incentive to reveal during the “one additional call” that the number has been reassigned. Rather, that individual has every incentive to receive as many calls as possible before filing a lawsuit under the TCPA. And this is not merely speculation—that is exactly what happened to the Rubio’s restaurant chain, which had no idea it was sending quality assurance text messages to a reassigned number until it was sued under the TCPA.

With the new “one-call” rule in place, businesses need to be extremely careful about all interactions with customers—even those who have given express consent. Under the FCC’s ruling, it is not enough to have a good-faith belief that the number belongs to the individual who gave consent. Call center personnel should be trained to confirm the identity of every individual who answers a call, and calls should not be terminated when they go to voicemail because the voicemail greeting may indicate a reassigned number. Also, to the extent they exist, companies should consider subscribing to reassigned number databases and scrubbing their contact lists against those databases before calls are made. Companies making artificial or prerecorded voice calls also can implement interactive opt-out mechanisms in all calls so that recipients can identify wrong-number calls. The FCC also suggests putting the burden on customers to provide companies with updated contact information, but this is an unreliable solution that could put businesses at odds with their customers in the event of litigation.

This portion of the FCC Order has been expressly challenged in petitions for review in the D.C. Circuit, and we will be monitoring those proceedings closely to see if these rulings are overturned.