Following on the heels of FCC Commissioner Michael O’Rielly’s stinging comments imploring the agency to address a backlog of petitions requesting clarification of its Telephone Consumer Protection Act (TCPA) regulations (see Sutherland’s Legal Alert “Will the FCC Answer Calls to Clarify the TCPA?”), FCC Chairman Tom Wheeler announced on May 27 that he is circulating a proposal within the agency to address the dozens of pending petitions seeking clarity on how the FCC enforces the TCPA. Chairman Wheeler is proposing a set of actions that, if adopted, will address pending TCPA issues including the definition of an autodialer and the new standard for “prior express written consent.” See Sutherland’s Legal Alert “Ringing in the New Year: TCPA Hot Issues for 2015” and “Redial: 2014 Year in Review – Analysis of Critical Issues and Trends.” According to Chairman Wheeler, the following proposed rulings, if adopted, will provide much-needed clarity for consumers and businesses surrounding:

  1. Consent requirements for robocalls and robotexts.
  2. Consent requirements for robocalls placed to reassigned numbers where previous subscribers consented to receive calls.
  3. The definition of “autodialer.”
  4. Limited and specific exceptions for urgent circumstances such as alerts to consumers.

According to Chairman Wheeler, the following protections will be unaffected by the proposed rulings:

  1. The National Do-Not-Call Registry.
  2. Prior express written consent will still be required for telemarketing robocalls to both wireless and landline home phones.
  3. Autodialed and prerecorded calls and texts to wireless phones require prior consent, whether they are telemarketing or informational calls.
  4. Political calls to wireless phones are subject to the general restrictions on prerecorded and artificial voice calls and autodialed calls. Political calls are not subject to the National Do-Not-Call Registry because such calls do not include telephone solicitations.

The proposal will be voted on during the Commission’s open meeting on June 18, 2015. Our experienced TCPA Litigation Team closely monitors and analyzes TCPA related developments and critical issues and will provide substantive analysis of the results of the FCC’s open meeting.