The Federal Communications Commission recently issued the latest in a series of orders providing details about the scope of the Telephone Consumer Protection Act (“TCPA”).1 The order is relevant to any companies that use automated technology to phone or send text messages to consumers. In recent years, many companies have been sued individually or in class actions for alleged TCPA violations, which allows consumers to recover up to $1,500 for each improper call/text. The FCC’s previous orders require express consent from consumers to receive “robocalls” - calls by telemarketers using a prerecorded voice or an autodialer.
Generally, the order increases the potential liability for companies that use robocalls. For example, the FCC now allows consumers to revoke consent at any time, through any reasonable means. The FCC also reaffirmed a previous ruling that the TCPA covers text messages and expanded that ruling to include Internet-to-phone text messages. The order also expands the TCPA to new technology with autodialer-like capabilities.
The order does reduce potential liability in a few specific situations. For example, the FCC exempted from liability certain informational texts and calls by health providers and others designed to prevent financial fraud. It also clarified that texts sent in response to consumer requests do not violate the TCPA. In addition, companies are not liable if they host or provide technology used by marketers, but do not instigate the texts or calls.
The order also exculpates some companies that have called wireless numbers that were reassigned to consumers who did not consent to being called. Historically, calling companies faced penalties up to $1,500 for each call even though they had no way to know the number has been reassigned. To address this problem, the FCC created a one-call exception of liability for calls to reassigned numbers, but only if the caller does not have knowledge of the reassignment.
The new order is a reminder of the numerous potential pitfalls of using robocalls or sending text messages for marketing or informational purposes.