For several years, numerous businesses and industry groups have petitioned the Federal Communications Commission (“FCC”) to provide clarity to the Commission’s prior interpretations of the Telephone Consumer Protection Act (“TCPA”). Currently, the FCC is facing more than twenty (20) petitions asking the Commission to provide guidance and relief on many different topics, including the definition of an “autodialer,” whether a consumer can revoke “prior express consent,” and whether a business can be held liable for unknowingly placing calls to a cell phone that had been reassigned.
Over the last year, there had been some indication that the FCC would issue a ruling providing some relief to businesses faced with the difficult task of complying with a statute that is constantly evolving through FCC decisions and federal court opinions. For example, in spring 2014, Republican FCC Commissioner Michael O’Rielly authored a blog post where he called for the FCC to address the inventory of TCPA-related petitions and stated:
Indeed, the problems caused by this lack of clarity are evidenced by an increasing number of TCPA-related law suits and a growing backlog of petitions pending at the FCC. According to data cited by the U.S. Chamber of Commerce in its recent comments, TCPA lawsuits have increased 30 percent over the last year. Meanwhile, there are several dozen petitions asking the FCC to declare or clarify that a particular service or method of communicating would comply with the TCPA. It is very troubling that legitimate companies feel they have to ask the government for its blessing every time they need to make a business decision in order to avoid litigation.
In a recent interview with the publication Broadcasting & Cable, Adonis Hoffman—chief of staff to outgoing Democratic FCC Commissioner Mignon Clyburn—was asked what he had learned from his time at the FCC and to discuss some of the FCC’s challenges. In response, Mr. Hoffman stated:
Businesses face regulatory challenges every day that were not intended by Congress or the FCC. Look at the TCPA—the Telephone Consumer Protection Act—for example. This consumer protection, anti-telemarketing statute has been leveraged by aggressive plaintiffs’ lawyers to line their pockets lavishly with millions, while consumers usually get peanuts. The proliferation of class-action litigation involving the TCPA has reached an outlandish level. I think the TCPA should be known by its real acronym—“Total Cash for Plaintiffs’ Attorneys.” This is just one example where the public interest is not being advanced responsibly.
On Wednesday, May 27th, the FCC finally indicating that it would be taking action by issuing a “fact sheet” that summarizes several proposals authored by Democratic FCC Chairman Tom Wheeler. The “fact sheet,” which can be found here, provides few specific details, but appears to indicate that the FCC will not provide the relief sought by the numerous businesses that have submitted recent petitions.
Specifically, the fact sheet proposes the following rulings regarding the TCPA:
- Revocation of consent: consumers would have the right to revoke their consent to receive autodialed calls and texts in any “reasonable” way at any time.
- Reassigned numbers: if a phone number has been reassigned, callers must stop calling the number after one call.
- Definition of “autodialer”: an “autodialer” would be any technology with the “capacity” to dial random or sequential numbers and would apply to calls that are dialed from “a list of numbers.”
- “Do not disturb” technology: carriers could offer call blocking technologies to consumers.
- Very limited and specific exceptions for urgent circumstances: some businesses would be allowed a free call or text to alert consumers of fraud or remind them of medication refills. The messages could not be marketing or debt collection and consumers would have the ability to opt out of these types of messages.
There is still a significant amount of uncertainty as to what some of these proposals will look like in their final form. For example, Chairman Wheeler states that callers must stop calling a reassigned number after “one call,” but does not explain what would constitute a “call.” Would the new subscriber be required to inform the caller of the re-assignment? Would an incoming voicemail message with the new subscriber’s name be sufficient? What about an unconnected call with no voicemail message?
While there is uncertainty surrounding the FCC’s “fact sheet,” one thing appears certain: the new proposal will likely do little to stem the tide of TCPA lawsuits flooding federal courts.