Thursday, May 28, 2015

FCC Will Rule on TCPA Petitions Next Month

The FCC has announced that Chairman Tom Wheeler has circulated a proposal to resolve more than 20 of the petitions pending before it concerning the TCPA.  The Commission will vote on June 18th.  If approved, the rulings would be considered effective immediately.  According to the Fact Sheet released by the CFPB yesterday, the proposal, if passed, will resolve a number of issues:

  1.  Whether calls made to reassigned numbers violate the TCPA where the prior subscriber provided consent to be called at that number? It appears that the Commission will answer this question in the affirmative.  According to the Fact Sheet, “[i]f a phone number has been reassigned, callers must stop calling the number after one call.”  If passed, the Commission intends to apply this ruling to both wireless and landline home service.
  2. What constitutes an autodialer? If passed, the Commission will define an “autodialer” as “any technology with the capacity to dial random or sequential numbers.”
  3. What about calls for urgent informational matters? If passed, it appears the Commission will carve out some limited exceptions for such things as fraud alerts and medication refills. 
  4. How is consent revoked? If passed, the Commission will allow consumers the right to revoke their consent “in any reasonable way at any time.” 

Additionally, if passed, the proposal will give the green light to carriers to offer robocall-blocking technologies to consumers.   Additionally, the Fact Sheet indicates that it will reaffirm the following existing protections:
  • The Do Not Call List would remain unchanged;
  • Prior written consent will continue to be required for telemarketing robocalls to wireless and landlines;
  • Autodialed and prerecorded calls and texts to wireless phones require prior consent, including debt collection calls;
  • Political calls to wireless phones will remain subject to the general restrictions on prerecorded and autodialed calls.
While it is likely that the FCC will rule in favor of Chairman Wheeler’s proposal, it should not be assumed that it is a given and too many conclusions should not be drawn until it can be fully reviewed.  At least one commissioner has been fairly vocal regarding the TCPA and its implications for businesses.  Commissioner O’Rielly has on several occasions taken up the banner urging a resolution to the FCC petitions and recognizing the needs of legitimate business, including collection agencies, to be able to conduct business without looking over their shoulder.  See Remarks before the US Chamber of Commerce (November 17, 2014) (noting that “for too many American companies seeking to conduct legitimate marketing or collection efforts…the implementation and enforcement of TCPA has turned into a nightmare of serious problems” and affirming the characterization of the TCPA as a “bounty statute”); Remarks before the ANA (April 1, 2015) (recognizing that “FCC decisions and court rulings have broadened the scope of the TCPA, creating uncertainty and litigation risks for legitimate businesses”).
The June 18th meeting will be available by live webcast for those interested.

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