FCC Plans Significant TCPA Rulings That Will Expand and Modify Compliance Obligations
Kelley Drye Client Advisory
On May 27, 2015, Federal Communications Commission (FCC) Chairman Tom Wheeler released a “fact sheet” on his proposal to address two dozen pending petitions seeking clarification on various aspects of the Telephone Consumer Protection Act (TCPA). The Chairman intends to address all of the petitions in a single omnibus approval, which will be presented for a vote during the Commission’s Open Meeting on June 18, 2015.
Many of the issues identified in the Chairman’s announcement have been pending before the Commission for a year or more. They cover core TCPA issues such as the definition of an “autodialer,” wrong number calls and texts, revocation of consumer consent and the sending of informational messages. His proposal appears to expand the scope of the TCPA and add new obligations on entities sending calls or texts. Specifically, the Chairman is proposing the following rulings:
- Consumers can revoke consent to receive robocalls/texts at any time and in almost any way. In a post to the Official FCC Blog contemporaneous with the fact sheet release, the Chairman stated: “People won’t have to fill out a form and mail it in to stop unwanted calls and texts. Any reasonable way of saying ‘no’ is allowed.”
- Wireless and landline carriers may offer robocall-blocking options to customers. The Chairman is proposing to clarify that robocall-blocking technology does not conflict with the general prohibition on call blocking by telcos.
- Consent by the prior owner does not continue to a reassigned phone number, but there should be a one-time safe harbor. Companies cannot rely on the consent provided by the former owner of a phone number that has since been reassigned to a new user. The precise details of the safe harbor have yet to be worked out, but it appears there will be a one-time safe harbor companies can rely on in placing informational and telemarketing robocalls to wireless or landline telephones if they did not have actual notice the number was reassigned.
- “An ‘autodialer’ is any technology with the capacity to dial random or sequential numbers.” This definition seeks to capture all forms of robocall and robotext technology. Importantly, the fact sheet states that telemarketers will not be able to “skirt” the TCPA “by calling from a list of numbers” (rather than dialing random or sequential numbers).
- Exceptions for urgent circumstances calls and texts will be “very limited and specific.” For example, alerts related to bank account fraud and important medication refills would be allowed.
The Chairman’s announcement also highlights a number of existing TCPA protections that will not change:
- Do Not Call obligations under the National Do Not Call registry would remain unchanged.
- Companies must still have prior express written consent of the recipient before placing a telemarketing robocall to her wireless or landline phone.
- Informational and political robocalls and robotexts to wireless still require prior express consent (but not written consent).
While the Chairman’s proposal is subject to change pending review from his fellow Commissioners, the current proposal – if adopted – would impose potentially dramatic changes on telemarketers’ business practices.
- The proposed definition of “autodialer” is expansive. A number of parties—including TextMe, Inc., ACA International, and Glide Talk—had filed petitions with the FCC requesting a narrow definition of “automatic telephone dialing system” (ATDS or autodialer) for purposes of the TCPA. Here, the FCC appears to go in the opposite direction, broadening the definition of an ATDS to encompass a wide array of dialing technologies. As a result, this proposal increases the likelihood that more devices will fall within the reach of the TCPA, and more companies—including intermediaries—will face potential class action lawsuits and Commission enforcement actions for alleged violations.
- The proposed “wrong number” rule seems to support an “actual notice” standard. In its 2014 petition, ACA International had requested that the FCC establish a safe harbor for autodialed “wrong number” non-telemarketing calls to wireless numbers. In its proposed new standard, the FCC appears to offer a limited exception, applying a one-time safe harbor to informational and telemarketing robocalls whether delivered to wireless or landline telephones. This new standard is potentially beneficial for telemarketers, as it appears to require actual notice that the number has in fact been reassigned.
- The proposed “urgent circumstances” exemption appears to be very narrow. A number of parties—including Blackboard Inc. and the Edison Electric Group (together with the American Gas Association)—had requested that the Commission exempt certain categories of urgent and emergency calls from the TCPA’s consent requirements. Here, the FCC’s proposal to exempt urgent calls delivered to wireless numbers appears to be very narrow. However, the true reach of the exemption will depend in large part on the specific examples that the Commission provides in its ruling, and on the degree of time-sensitivity required for an “urgent” message —i.e., whether the calls must be made within a certain timeframe (as the Commission requires for confirmatory opt-out messages).
Kelley Drye attorneys routinely track pending TCPA actions and recent TCPA news in our monthly TCPA Tracker. Our TCPA Tracker includes a detailed summary of all petitions pending with the FCC, including the petitions that would be addressed in the Chairman’s proposed orders. For more background on these petitions, please click here.
Once the Commission votes on June 18th, we will follow up with a more extensive client advisory. In the meantime, should you have any questions about this item and how it may affect your business, feel free to contact your regular Kelley Drye attorney.