What Marketers Need to Know About the FCC’s Recent TCPA Ruling

On July 10, 2015, the Federal Communications Commission (“FCC”) issued a Declaratory Ruling and Order (“Declaratory Ruling”) in response to 21 separate requests seeking clarification or other action on the Telephone Consumer Protection Act (“TCPA”). The Declaratory Ruling has implications for any entity that utilizes wireless phone numbers for contacting consumers. The most relevant highlights of the Declaratory Ruling are described below.

The TCPA makes it unlawful to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system (“ATDS”) or an artificial or prerecorded voice to any telephone number assigned to a cellular telephone service, or any service for which the called party is charged for the call.

First, just to clarify, this is not a “new federal law.” This Declaratory Ruling was issued by the FCC in response to requests seeking clarification on the TCPA.

1. The Ruling expands the meaning of ATDS (or “autodialer”) and requires a case-by-case determination of their inclusion within the reach of the TCPA.

The FCC does not distinguish between calls to wireless telephone numbers made by predicative dialers and calls made “when the equipment operates independently of such lists and software packages.” Recognizing the developments in technology, the FCC stated that an ATDS is defined by the basic capacity to dial numbers without human intervention.” “Capacity” does not exempt equipment that lacks the “present ability” to dial randomly or sequentially. Rejecting definitions that fit “only a narrow set of circumstances” in favor of broad definitions which reflect a legislative intent to accommodate the full range of telephone services and telemarketing practices,” the FCC believes that the TCPA covers capacity of a current configuration and potential functionalities.

As a result, the Ruling does not specify the “exact contours” of an autodialer. Therefore, there is no hard-and-fast rule to enable a business to easily determine compliance risks under the TCPA. The bigger – and still unresolved – questions is whether dialing systems that require human intervention are or are not autodialers. In fact, the FCC expressly rejected a request to adopt “human intervention” as the test to identify whether a dialer is an autodialer. Still open is the question of whether human intervention that will take equipment outside the scope of the autodialer definition.

2. The Ruling clarified issues related to calling “reassigned” wireless numbers: a “called party” is “the [current] subscriber, i.e., the consumer assigned the telephone number dialed and billed for the call, or the non-subscriber customary user of a telephone number included in a family or business calling plan” as opposed to the “intended recipient” or “intended called party.”

This is really about “consent” of the called party to receive a call/text message. Voluntarily providing a cell number has previously been held to constitute initial consent from the current subscriber or non-subscriber customary user of the phone, as of the time the call is made.

In the case of a number being reassigned, the FCC recognized that a service using an ATDS may not have actual knowledge that the number has been assigned. To address this, the Ruling provides that, so long as a caller does not have actual knowledge that the number has been reassigned, it may make one call to a reassigned number without liability. Note that the FCC stated that simply by placing a call to a reassigned wireless number, the caller has constructive notice that the number has been reassigned, and can incur TCPA liability for every non-compliant call placed thereafter. This conclusion was criticized by the two dissents who asserted that the one call standard would require callers “to do the impossible” (discern whether a number has been reassigned from a single call, without more).

2. The FCC reiterated that a called party may revoke consent at any time and through any reasonable means, and callers may not limit the manner in which revocation may occur. IV. Exceptions for Pro-Consumer Messages About Time-Sensitive Financial and Healthcare Issues

4. A one-time text immediately sent in response to a consumer’s request for information, such as a coupon to apply to an offer, does not violate the TCPA, however the Ruling casts doubt on whether Prior Express Written Consent can be established on the basis of a text opt-in response to an advertisement that contains the TCPA required disclosures.

Given the guidance and ambiguities from the FCC’s Declaratory Ruling, now would be a good time for marketing firms to review their phone and text message marketing polices:

  1. Review policies around the collection and use of phone numbers provided by consumers;
  1. Ensure that the processes for collecting phone numbers distinguishes between wireless and residential numbers, and have opt-out provisions in place to ensure that users of reassigned numbers are not wrongfully contacted;
  1. Review wireless number lists for currency and accuracy; and
  1. Review and assess messaging and marketing programs and vendors.
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