June 3, 2015 -- FCC Chairman Tom Wheeler’s TCPA “Fact Sheet” on forthcoming declaratory rulings issues should scare the heck out of any business using any telephone to reach potential, current or former customers. I believe the rulings will have a substantial impact on customer operations in the financial services industry.
I expect the Declaratory Rulings to touch a number of crucial issues driving TCPA litigation.
Businesses that want to call a customer’s cellphone using an “automated telephone dialing system” (ATDS) need the prior express consent of the “called party.” The Fact Sheet hints that the proposal “clarifies and reiterates” the consent required to do so. It better, because there are at least three interpretations of the “called party” being bandied about -- 1) the recipient of the call, 2) the “owner” or “subscriber” of the cellphone account or 3) a person who has authority of the subscriber to allow the number to be called. The last option involves a person who provides the cellphone number of another, such as a spouse, domestic partner or housemate, but does not use or subscribe to the cellphone herself.
The nature and extent of the necessary consent also remains in flux.
If a business wants to contact its customer, it isn’t likely to do it using a phone system that randomly dials telephones. It is not going to use a phone system that sequentially dials numbers either. Businesses that leverage technology to increase the accuracy and integrity of their customer contacts will use a system that dials the telephones of its customers. But dialing technology that does not have the capacity to dial random or sequential numbers has still been found by some courts to fall within TCPA regulation. Other courts have disagreed, limiting TCPA regulation to systems that only have the present capacity to dial random or sequential numbers.
Chairman Wheeler’s Fact Sheet states that an ATDS must have the “capacity to dial random or sequential numbers.” The Chairman’s emphasis on the word “capacity” could mean that there will be exceptions for certain telephone technology as not all telephony systems have the capacity to dial random or sequential numbers. But that hope is muted by the Chairman when he goes on to say something very worrisome – the proposed rulings would prevent the use of “changes in calling technology design” or “calling from a list of numbers” that “skirt consumer consent.”
Calling from a list of numbers is probably the only way businesses can effectively telephone their customers. And there’s a lot of technology that can do this, even though they are not intended to dial “from a list of numbers.” Some systems have auto redial and can call back a telephone that was originally busy, without further intervention. Technology that schedules the time for the customer call and then makes the call is widely available. But if the proposed rulings are too expansive, this technology could pose a TCPA risk if the calls are deemed to be made “from a list of numbers.”
Since the Third Circuit’s 2013 decision in Gager v. Dell Financial Services, permitting a consumer to revoke prior consent to receive calls made using an ATDS, it has become the current fashion for TCPA complaints to allege the plaintiff had revoked their consent sometime before the alleged offending calls began.
At this point, there is no consensus as to how a person can revoke their prior express consent to receive a phone call that was initiated by an ATDS. Some decisions have allowed it to be orally delivered, but others have required it to be in writing. The nature and content of the revocation also remains an unresolved issue.
The FCC Chairman’s Fact Sheet suggests we should expect a ruling on revocation that would allow consumers to revoke consent “in any reasonable way at any time.”
Though it appears debt collection calls are not getting a pass from continued TCPA regulation, it remains to be seen what impact the rulings may have on such calls.
ATDS calls that would alert a consumer to certain events – the Chairman noted fraud alerts and medication refills – may get a limited exemption. But the Fact Sheet made an ambiguous reference to these calls or texts as “free.” If this means the consumer cannot be charged for receiving the call or text, then the exemption is likely worthless.
The risks of dialing a wrong number using an ATDS remain large and it is likely to stay that way unless the rulings add something beyond what is stated in the Fact Sheet. All we know now is that the ruling proposes to exempt “one call” to a wrong number.