Broad implications for businesses using automated text messages or "Robo" calls

On July 10, 2015, the Federal Communications Commission (FCC) released its Telephone Consumer Protection Act (TCPA) Omnibus Declaratory Ruling (FCC 15-72).  The ruling became effective immediately. 

In the Ruling, the Commission summarized its general TCPA guidance- "[i]f a caller uses an autodialer or prerecorded message to make a non-emergency call [text] to a wireless phone, the caller must have obtained the consumer’s prior express consent or face liability for violating the TCPA." (emphasis added).  Prior express consent for these calls must be in writing if the message is telemarketing, but can be oral or written if the call is informational. 

The Commission then proceeded to lay out a laundry list of TCPA clarifications, new requirements, and exemptions including:

  • A called party may revoke consent at any time and through any reasonable means.  A caller may not limit how revocation may occur.
  • Regardless of how a caller obtains consent, if any question arises whether prior express consent was provided by a call recipient, the burden is on the caller to prove that it obtained the prior express consent.
  • SMS Text messages and internet to phone text messages are considered "calls" under the TCPA, and require written consent.
  • The definition of an autodialer is broadened to include dialing equipment with the capacity to store or produce, and dial, random or sequential numbers, even if the equipment is not presently used or equipped for that purpose, including the situation when the caller is calling a set list of consumers.
  • Callers are liable for robocalls to reassigned wireless numbers when the current subscriber to or customary user of the number has not consented, subject to a limited, one-call exception for cases in which the caller does not have actual or constructive knowledge of the reassignment.
  • A one-time text sent in response to a consumer’s request for information does not violate the TCPA or the FCC's rules if it: (1) is requested by the consumer; (2) is a one-time only message sent immediately in response to a specific consumer request; and (3) contains only the information requested by the consumer with no other marketing or advertising information.   This ruling applies only when the on-demand text message has been expressly requested by the consumer. 
  • The TCPA’s restrictions on autodialed, artificial-voice, and prerecorded-voice calls to wireless numbers apply equally to telemarketing and informational calls.   Except for calls made for emergency purposes or with the prior express consent of the called party, the TCPA broadly prohibits calls made using “any automatic telephone dialing system” to “any telephone number assigned to a . . . cellular telephone service” without limiting that restriction to telemarketing calls.
  • The FCC has created an exemption from the standard TCPA call prohibitions for emergency calls made by financial institutions to consumers to warn of (1) “transactions and events that suggest a risk of fraud or identity theft; (2) possible breaches of the security of customers’ personal information; and (3) steps consumers can take to prevent or remedy harm caused by data security breaches.   These three types of calls are all intended to address exigent circumstances in which a quick, timely communication with a consumer could prevent considerable consumer harms from occurring or, in the case of the remediation calls, could help quickly mitigate the extent of harm that will occur.

The following limitations apply to this exemption—

  • voice calls and text messages must be sent, if , only to the wireless telephone number provided by the customer of the financial institution;
  • voice calls and text messages must state the name and contact information of the financial institution (for voice calls, these disclosures must be made at the beginning of the call);
  • voice calls and text messages are strictly limited to purposes set forth above and must include no telemarketing, cross-marketing, solicitation, debt collection, or advertising content;
  • voice calls and text messages must be concise, generally one minute or less in length for voice calls (unless more time is needed to obtain customer responses or answer customer questions) and 160 characters or less in length for text messages;
  • a financial institution may initiate only three messages (whether by voice call or text message) per event over a three-day period for an affected account;
  • a financial institution must offer recipients within each message an easy means to opt out of future such messages, voice calls that could be answered by a live person must include an automated, interactive voice- and/or key press-activated opt-out mechanism that enables the call recipient to make an opt-out request prior to terminating the call, voice calls that could be answered by an answering machine or voice mail service must include a toll-free number that the consumer can call to opt out of future calls, text messages must inform recipients of the ability to opt out by replying “STOP,” which will be the exclusive means by which consumers may opt out of such messages; and,
  • a financial institution must honor opt-out requests immediately.

The FCC also granted a similar exemption for calls related to healthcare treatment purposes, specifically: appointment and exam confirmations and reminders, wellness checkups, hospital pre-registration instructions, pre-operative instructions, lab results, post-discharge follow-up intended to prevent readmission, prescription notifications, and home healthcare instructions.

The following limitations apply to this exemption—

  • voice calls and text messages must be sent, if at all, only to the wireless telephone number provided by the patient;
  • voice calls and text messages must state the name and contact information of the healthcare provider (for voice calls, these disclosures must be made at the beginning of the call);
  • voice calls and text messages are strictly limited to the purposes set forth above; must include no telemarketing, solicitation, or advertising; may not include accounting, billing, debt-collection, or other financial content; and must comply with HIPAA privacy rules;
  • voice calls and text messages must be concise, generally one minute or less in length for voice calls and 160 characters or less in length for text messages;
  • a healthcare provider may initiate only one message (whether by voice call or text message) per day, up to a maximum of three voice calls or text messages combined per week from a specific healthcare provider;
  • a healthcare provider must offer recipients within each message an easy means to opt out of future such messages, voice calls that could be answered by a live person must include an automated, interactive voice- and/or key press-activated opt-out mechanism that enables the call recipient to make an opt-out request prior to terminating the call, voice calls that could be answered by an answering machine or voice mail service must include a toll-free number that the consumer can call to opt out of future healthcare calls, text messages must inform recipients of the ability to opt out by replying “STOP,” which will be the exclusive means by which consumers may opt out of such messages; and,
  • a healthcare provider must honor the opt-out requests immediately.

The limited scope of the emergency exceptions to the TCPA prohibitions highlight the probable illegality of many types of automated commercial communications currently being used by legitimate businesses today. If your business is communicating with consumers via automated calls or texts, we recommend that you seek the guidance of an experienced TCPA attorney for a review of your business practices in light of the new TCPA requirements.