The Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, prohibits, among other things, calls or texts made to cellular telephones with an Automatic Telephone Dialing System or prerecorded messages. TCPA litigation is an ever-expanding area of concern for any business whose operations include contacting consumers via cellular phone for a variety of reasons, including mobile marketing and debt collection. Adding to this concern is that fact that the law has historically been interpreted in broad and uncertain ways – including interpretations of key definitions such as “autodialer” and revocation of “prior express consent.” In light of this ambiguity, business and industry groups have repeatedly petitioned the Federal Communications Commission (FCC) requesting clarification on the FCC’s prior interpretations.
In response, on May 27, 2015, the FCC released a fact sheet to the public describing Chairman Wheeler’s proposed declaratory rulings on various issues of FCC interpretation. The fact sheet is meant to address all of the nearly two dozen pending petitions filed with the FCC seeking clarity on TCPA enforcement, which will allow the FCC to vote on the pending petitions in a single omnibus order during the June Open Commission Meeting scheduled for June 18, 2015. If approved, the proposals would be adjudications that are effective immediately upon release.
While businesses have repeatedly requested clarification of the TCPA it appears that the Chairman’s proposal is geared to “close loopholes and strengthen consumer protections” rather than offer the relief sought by businesses. Specifically, the Chairman’s fact sheet asks the Commissioners to consider the following proposals:
- Allow consumers the right to revoke consent. The TCPA and FCC rules are silent on whether consent to automated/prerecorded calls or texts to wireless or landline phone service can be revoked. A proposed ruling would give consumers the right to revoke consent “in any reasonable way at any time.” The proposal does provide specific details but seems to suggest that the manner of revocation would not be limited to the manner in which the original consent was granted.
- Reassigned numbers. This proposal would permit callers to call a telephone number that has been reassigned from the individual who originally gave consent only once before facing liability. The proposal does not address how a caller is determined to know when a number has been reassigned.
- “Do Not Disturb” Technology. Telecom carriers would be permitted to implement and offer call blocking technologies to consumers.
- Definition of “Autodialer.” The TCPA and FCC rules define an “autodialer” as equipment that “has the capacity” to dial random or sequential numbers. Courts have strongly debated how the term “capacity” should be interpreted; e.g. the equipment’s present capacity or potential capacity. It appears that the proposal seeks to adopt a definition that includes any technology with the potential to dial random or sequential numbers to “ensure robocallers cannot skirt consumer consent requirements through changes in calling technology design or by calling from a list of numbers.”
- Limited Exceptions to Consent Requirements. The fact sheet proposes “very limited and specific exceptions” to the consent requirement for urgent circumstances. Some examples provided include a free call or text to alert consumers of fraud or reminders to refill medication. The proposal also specifically identifies types of calls that would not be exempted including marketing or debt collection calls. Consumers would also have the ability to opt out of these limited exceptions.
Uncertainty remains regarding the final form of these proposals, but at first glance it appears that the proposals will do little to provide solace to businesses facing TCPA claims. Companies should be prepared and ready to act as there will be no notice and comment period and any final adjudication issued on June 18 will be immediately effective. Now is a good time to review your organizations TCPA compliance policy and dialing systems and consider consulting with your in-house or outside counsel regarding the potential impact of these proposals on the efficacy of your policy in the event they become binding adjudications.