Recent action by the Federal Communications Commission ("FCC") provides some hope that the FCC will clarify its rules to address the wave of predatory lawsuits exploiting potential ambiguities in the Telephone Consumer Protection Act ("TCPA") and the FCC rules enforcing the Act. In a July 25 Public Notice, the FCC sought public comment on petitions addressing the FCC rule requiring opt-out notices on faxes even when the recipient has provided express consent to receive the fax. Parties wishing to make their views known on this and other TCPA matters ahead of likely FCC action may wish to consider filing comments with the Commission.
TCPA Rules Ripe for Review
The July 25 Public Notice regarding the rules for faxes is the most recent in a series of Public Notices seeking comment on numerous filings by industry and individuals seeking clarification on the FCC's rules enforcing the TCPA. The TCPA was intended to restrict certain uses of automatic telephone dialing systems and unsolicited facsimile advertisements. Lawsuits filed under the TCPA have sought damages from businesses for a wide range of various beneficial services, such as notifying consumers of home deliveries and responding to verified requests for product information.
For many years, parties have sought clarity from the FCC and the Federal Trade Commission ("FTC") on the appropriate scope of the TCPA through petitions for declaratory rulemaking and other pleadings. In response, the FCC and FTC have adopted a handful of orders over the years clarifying points about each agency's interpretation of the TCPA and its rules. Meanwhile, the backlog of declaratory petitions that remain outstanding has grown substantially. Evidencing that fact, on March 25, FCC Commissioner Michael O'Rielly wrote:#
[T]here 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.
That is why the FCC needs to address this inventory of petitions as soon as possible…. Tackling this backlog in a comprehensive manner will help restore certainty and reduce the need to file additional petitions.
In recent months, the staff of the FCC appears to be preparing a series of draft orders that categorize and attempt to address the interpretive issues that remain outstanding. Although many of the outstanding issues appear suitable to be resolved by the FCC through the issuance of an order, the disposition of some issues may require the FCC to seek additional comment from interested parties through an administrative rulemaking process. Thus, the FCC staff may propose that the Commission adopt a combination of declaratory orders for immediately resolvable issues and a notice of proposed rulemaking to address issues that require the development of a further factual record.
Industry Seeks Clarification on Multiple Issues
In apparent response to the renewed attention to these issues by FCC staff, there has been a recent wave of new filings by interested parties seeking to ensure that their particular issues of concern are included in any orders or rulemaking notices that are adopted by the FCC in this comprehensive effort. Businesses and organizations that have concerns about potential ambiguities in the TCPA should take steps immediately to ensure that their concerns are included in the growing list of subjects that the FCC is likely to address. Although some authority exists on various issues, some of the major questions that have already been presented to the FCC include:
- Whether the Commission's rule requiring opt-out notices on solicited faxes has a basis in the TCPA;
- Whether a combination of separately owned systems used to transmit unsolicited text messages constitutes a prohibited "autodialer" under the TCPA;
- Whether third-party consent may satisfy the TCPA's "prior express consent" requirement for noncommercial information calls or text messages to wireless numbers;
- Whether the use of "predictive dialers" to place nontelemarketing calls is permitted under the TCPA;
- What the meaning of the "capacity" of equipment is in the TCPA definition of "autodialers";
- Whether the capacity to make calls "without human intervention" should be part of the definition of "autodialers";
- Whether the Commission should eliminate the requirement for an automated, interactive opt-out message during abandoned calls; and
- Whether the Commission should establish a safe harbor for autodialed calls to numbers for which express consent had previously been obtained but the number had been reassigned from the consenting customer to another person.
Although FCC officials have expressed hope of addressing these and related issues later this year, the reality of the federal administrative process is that all recommendations of the FCC staff must first be approved by FCC Chairman Thomas Wheeler and then must be adopted by a majority vote of the five-member Commission. Although this approval process can be expedient, issues that are viewed as controversial—which invariably seems to include any interpretation of the TCPA—can drag on while the Commissioners deliberate on the written record and meet with interested parties to hear their views.
Thus, although it is possible that significant steps may be taken later this year to resolve the ambiguities in the TCPA, there is no certainty that the FCC will be able to assemble a sufficient majority and the political willpower to resolve these concerns and help the business community correspond in a compliant manner with existing and future customers without the threat of predatory legal action.