“This Order will make abuse of the TCPA much, much easier. And the primary beneficiaries will be trial lawyers, not the American public.” That’s what FCC Commissioner Ajit Pai had to say in his dissent from the FCC’s recent Declaratory Ruling and Order, issued on July 10, 2015. The FCC’s Order reflected the agency’s response to 21 petitions seeking guidance regarding or exemptions from various requirements under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, and its implementing regulations.
The TCPA prohibits certain fax and automated-dialing practices and authorizes recovery of up to $1,500 per call, text message, or fax sent in willful violation of its restrictions. The TCPA has led to a tidal wave of class-action litigation, and the FCC’s recent Order may hasten that trend.
Most prominently, the FCC’s recent ruling:
- Expands the types of equipment that might qualify as an autodialer subject to the TCPA;
- Confirms that, for certain kinds of calls or text messages that are subject to the FCC’s “prior express written consent” rule that became effective in October 2013, companies cannot rely on consents given before October 2013 that do not meet the “prior express written consent” standard, although—for certain companies—the “prior express written consent” rule is waived until October 9, 2015;
- Clarifies that consumers may revoke consent to receive regulated calls or text messages through any reasonable means, and that companies cannot limit those means;
- Imposes liability for autodialed calls to reassigned or wrong numbers;
- Requires consent for Internet-to-phone text messages;
- Clarifies when providers of calling or texting platforms might be liable for unsolicited calls and messages sent by users;
- Exempts certain free, one-time text messages sent in response to a request for information from liability;
- Exempts from liability certain free, time-sensitive financial- and healthcare-related messages;
- Permits carriers and Voice over Internet Protocol (VOIP) providers to adopt call-blocking technology.
Despite the number and significance of these changes, the FCC has stated that its ruling is effective immediately.