The Federal Communications Commission (“FCC”) met on June 18, 2015, to vote on a proposed ruling on the Telephone Consumer Protection Act (“TCPA”). According to the FCC, the purpose of the meeting was to consider a “Declaratory Ruling and Order reaffirming the TCPA’s protections against unwanted robocalls, encouraging pro-consumer uses of robocall technology and responding to a number of requests for clarity from businesses and other callers.”
As a result of the meeting, the FCC expanded the scope of the TCPA by a 3-2 vote that generally fell along party lines, with Democrats Jessica Rosenworcel and Mignon Clyburn supporting fellow Democrat Tom Wheeler, and Republicans Ajit Pai and Michael O’Rielly dissenting. Although the actual ruling has not been issued, the June 18 hearing and FCC press releases reveal that the ruling will focus on the following issues:
Opt-Out. The FCC will codify a person’s right to revoke previously given consent to receive calls and messages to his mobile phone and prerecorded calls to landlines. The FCC believes a person must be able to revoke his consent to receive autodialed calls and texts “in any reasonable way at any time.” One commissioner expressed serious concern with this language, noting that the new ruling leads to the absurd result that a consumer can now walk into any fast food restaurant and inform the server that she does not want to receive any future calls or texts from the restaurant, and the restaurant must comply.
Reassigned Numbers. The FCC’s ruling would place strict liability on companies that call a mobile phone number that was reassigned to a new subscriber, despite having received consent for such calls from the prior subscriber. According to the FCC, callers have just one opportunity to call a number that has been reassigned to a different subscriber without liability, but liability will attach to any subsequent calls. This holds true even if the recipient of the call never informs the caller that the number had been reassigned. The FCC made this decision despite overwhelming industry requests for a good faith safe harbor, or clarifying that the TCPA’s use of “called party” means “intended recipient.”
Autodialer Definition. The FCC found that an autodialer is any technology with a capacity to dial random or sequential numbers. Litigants often dispute whether technology that is merely capable of random or sequential number generation—but where such technology was not used to place the call at issue in the lawsuit—falls within the autodialer definition. It is unclear whether this argument will be available to litigants after the FCC’s ruling, which could arguably turn nearly any telephone system into an “autodialer.” Even systems that do not have the present capacity to autodial may still be deemed autodialers according to the FCC.
The commissioners were sharply divided in their views of the FCC’s ruling on these issues. Commissioner Pai noted that by adopting the ruling, the FCC has “strayed from the law’s original purpose,” and “made it much easier for abuses of the law,” which will primarily benefit trial lawyers and open the floodgates of liability for good faith actors. Commissioner O’Rielly went even further and proclaimed that the forthcoming ruling “is one of the most slanted documents I’ve ever seen and I will not be so naïve to trust again certain people in leadership positions at the Commission.”
The latest from the FCC will not rein in the volume of TCPA litigation that has flooded the courts in recent years. Nor does the ruling delineate the line between unwanted telemarketers and legitimate businesses trying to reach their customers.