As recently written about here, FCC Chairman Wheeler recently announced a proposal to address backlogged petitions seeking clarity regarding the scope of the requirements under the U.S. Telephone Consumer Protection Act (“TCPA”). The FCC has now adopted heavily-debated changes to the TCPA rules designed to strengthen consumer protections.
Subject to the official release, the changes cover the definition of autodialer, re-assigned numbers, revocation of consent, an exemption for certain types of urgent calls/texts and the right to opt-out of receiving robocalls.
First, the FCC has expanded the already overly broad definition of an automatic telephone dialing system. The order broadens the definition of an autodialer from a device that has the “capacity” to dial random or sequential phone numbers to “any technology with the potential to dial random or sequential numbers.” Critics of this ruling believe that considering any technology with the present or future capacity to dial random or sequential numbers is inherently problematic because just about any device can be programmed to record and re-dial telephone numbers, including an iPhone.
Also controversial is the limited safe harbor for reassigned numbers. The ruling by the FCC would place strict liability on companies that call a mobile phone number that was re-assigned to a new subscriber, despite having received authorization for such calls from the prior subscriber. Industry efforts to secure a broader safe harbor have gone unanswered. While a telemarketer will not be liable for the first telephone call made following re-assignment, any/all subsequent calls will result in liability. Presently unclear is whether a telephone call recipient is responsible for informing the caller that the number has been re-assigned. Clearly, should a recipient not be required to do so, one could simply remain silent while he/she receives countless calls with the specific intent to file suit seeking statutory damages. Inherent challenges regarding how telemarketers can ultimately achieve compliance without knowledge of cell phone number re-assignment or adequate databases to assist with such a determination, is a legitimate concern.
The FCC has also unequivocally stated that consumer possess the right to revoke consent to receive calls and messages to their mobile phone and pre-recorded calls to landlines, “in any reasonable way, at any time,” including verbal revocation. These rights will now be codified. Previously, this requirement was only recognized judicially. This change received some criticism as being a bit vague and uncertain. The foregoing clearly illustrates the importance of consulting with a telemarketing lawyer to ensure the proper implementation of effective suppression policies, and to adhere to other new FCC interpretations.
Urgent calls and messages sent to consumers under certain limited circumstances would be permitted, without consent. The exemption would cover, for example, certain healthcare and bank fraud communications. Consumers will have to provided with a reasonable opt-out mechanism.
Service providers and carriers would be permitted to offer “Do Not Disturb” robocall-blocking technology to their customers. Specific details regarding consumer choice and unwanted, overly broad inaccessibility have not yet been resolved.
Lastly, an exemption for service providers, app developers and texting platforms that merely provide the ability for third parties to make calls and send messages.
The ruling also re-affirmed that a SMS text message is a call. A more comprehensive report and formal order on these issues is expected shortly.
Information conveyed in this article is provided for information purposes only and does not constitute, nor should it be relied upon as legal advice. This information is not intended to substitute for obtaining legal advice from an attorney. No person should act or rely on any information in this article without seeking the advice of a telemarketing attorney
