On Wednesday, May 27, 2015, the FCC released a Fact Sheet announcing that Chairman Wheeler circulated a proposal to the other Commissioners for resolution of two dozen pending petitions seeking clarification of the FCC’s rules that implement the Telephone Consumer Protection Act (“TCPA”). According to the Fact Sheet, the proposal combines 24 currently pending petitions for declaratory rulings on the TCPA into a single item that the Commission will vote on as a whole during the its next Open Commission Meeting on June 18, 2015. Although industry has lobbied heavily for clarifications relating to the TCPA as a result of multi-million dollar class action settlements, the Chairman’s emphasis appears to be more on “closing loopholes” and “strengthening consumer protections” rather than providing industry relief, but there do appear to be some glimmers of hope.
The proposal asks the Commissioners to consider clarification of a range of issues under the TCPA, including whether to:
- Extend the ability of consumers to revoke previously proffered consent to receive “robocalls” and “robotexts” to allow such revocation in “any reasonable way at any time;”
- Allow telecom carriers to implement and offer consumers call-blocking technology that will stop unwanted telemarketing and automated robocalls, in response to a request by the National Association of Attorneys General and 39 law enforcement executives;
- Clarify that callers must stop calling cellphone and landline telephone numbers that have been reassigned from the party that had originally given prior consent “after one call” (as discussed previously, courts have taken an almost strict liability approach on such callers, even when it is believed prior consent of a number’s previous owner is still valid);
- Reinforce the definition of what constitutes an “autodialer” under the TCPA as encompassing any technology “with the capacity 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;” and
- Provide an adjunct to the “emergency purposes” exception to the TCPA’s prohibitions on autodialing cellphones by allowing a “very limited exception” (emphasis the Chairman’s) for free automated calls or texts for purposes of, g., fraud alerts, critical mediation refills, etc.
The Fact Sheet is sparse in terms of details, and the true impact of the Commission’s rulings on the petitions will lie in the details of the forthcoming omnibus ruling. There is likely to be considerable lobbying of the Commission until the “sunshine period” (June 11, or seven days before the Open Meeting), and input from the other Commissioners also could affect the content and tenor of the rulings. Careful review of the ultimate order will be critical in determining how much relief the Commission has afforded an industry beset by a mountain of class action litigation, and how much the Commission retrenches existing rules that provide fodder for such cases.