The hopes of businesses nationwide that the FCC would offer some relief were dashed Friday when the FCC released its final Declaratory Ruling and Order (FCC Order) in response to 21 petitions seeking assistance under the TCPA. See In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Declaratory Ruling and Order, FCC 15-72, CG Docket No. 02-278, WC Docket No. 07-135, July 10, 2015. The FCC Order comprises 138 pages, addresses more than a dozen issues and includes two blistering dissents.
According to Commissioner Ajit Pai, “This Order will make abuse of the TCPA much, much easier. And the primary beneficiaries will be trial lawyers, not the American public.” FCC Order at p. 113. Commissioner Michael O’Reilly was similarly chagrined, saying, “The Commission’s unfathomable action today further expands the scope of the TCPA and sweeps in a variety of communications either by denying relief outright or by penalizing companies that dial a number that, unbeknownst to them, has been reassigned to someone else.” Id. at p. 127.
The ramifications of the FCC Order are nothing less than staggering for any business that uses cell phones or call dialing technology of any kind (perhaps other than a rotary phone dialed by a human finger) to facilitate its operations. In fact, it is difficult to conceive of any type of business that is completely immune from Friday’s decisions.
Telemarketers and debt collectors will not be the only ones affected. Retailers, publishers, broadcasters, weather forecasters, health care providers, banks, insurance companies, manufacturers, travel agencies, schools, credit card companies and a whole host of other industries will be affected.
Companies should begin a review now of their oral call and text outreach campaigns to make sure they are compliant with the FCC Order. In the alternative, companies should be prepared to litigate the issues addressed by the FCC Order for years to come, including but not limited to challenging the authority of the FCC to issue an order that many experts and commentators say goes far beyond the textual moorings of the TCPA (in fact, at least one petitioner, ACA International, filed suit against enforcement of the FCC Order last Friday, see ACA International v. FCC, Case No. 15-1211, U.S. Court of Appeals for the D.C. Circuit, and other companies are almost certain to intervene in that suit or file their own).
Because the FCC Order is so dense and addresses so many issues, we plan to write a series of articles over the next several weeks addressing various aspects of the order. The articles will break down as follows:
- Autodialers (Part 2)
- Maker of a Call (Part 3)
- Consent and Called Party (Part 4)
- Prior Express Consent after 2012 Rule Changes (Part 5)
- Text Messages as Calls (Part 6)
- Free-to-End User Calls (Financial Institutions) (Part 7)
- Free-to-End User Calls (Health Care) (Part 8)
- Call-Blocking Technology (Part 9)
- The Dissents (Part 10)
- The Big Picture (Part 11)
In these articles, we intend not only to summarize what the FCC did, but also to critique the FCC reasoning and analyze how it could impact TCPA compliance and litigation going forward.
Although the petitioners had hoped to receive relief from the FCC through clarification of the TCPA, most received just the opposite. The TCPA plaintiffs’ bar is more emboldened now than it ever has been, and now is perhaps the best time since the TCPA’s adoption in 1991 to become a TCPA plaintiffs’ class action lawyer. While good for the plaintiffs’ trial bar, this is very bad news for corporate America. Closely following how this FCC Order plays out in litigation will be critical to any corporation facing potential TCPA exposure.