Last month, a group of 14 United States Senators from the Democratic Party sent a letter (the “Letter”) to the Federal Communications Commission (“FCC”) in response to two (2) FCC Public Notices seeking comments on a proposed rulemaking concerning certain provisions of the Telephone Consumer Protection Act (“TCPA”). The Letter urges the FCC to adopt consumer-friendly protections with respect to three key TCPA law topics: (1) the definition of automatic telephone dialing system (“ATDS”); (2) the interpretation of “called party”; and (3) revocation of consent to be called.
What are the group of senators seeking from the FCC?
The FCC’s Power to Interpret TCPA Law
Congress delegated to the FCC the power to interpret, implement, and enforce the TCPA. As we have previously blogged, earlier this year, the D.C. Circuit Court of Appeals (“D.C. Circuit”) struck down certain portions of the FCC’s 2015 Declaratory Ruling that interpreted certain provisions of the TCPA. In its decision, the D.C. Circuit limited the FCC’s interpretation of an ATDS within the meaning of the statute. The D.C. Circuit also found that the FCC’s one-call safe harbor rule to reassigned telephone numbers was arbitrary and capricious because it failed to address how it would put callers on notice that phone numbers had been reassigned. In vacating the safe harbor provision, the D.C. Circuit also set aside the FCC’s interpretation of “called party”—the actual recipient of the call—not the intended recipient. The court reasoned that if there was no safe harbor, then a call to a reassigned telephone number (i.e., called party) would make the caller strictly liable, even if the caller had no knowledge of the reassignment.
The subject Letter urges the FCC to comprehensively define ATDS and “use the FCC’s exemption authority to carve out ordinary devices like smartphones that are not being ordinarily used to auto dial consumers en masse.” In addition, the Letter urges the FCC to reaffirm its prior definition of “called party” to mean “the actual party that is called, not the intended recipient of the call” and encourages the FCC to “maintain aggressive protections” for calls to reassigned numbers. Finally, the Letter urges the FCC to provide consumers with the ability to revoke consent to be called “regardless of any contractual clauses that may be included in user agreements” that could limit the methods or means of revoking consent.
The Current State of TCPA Law
As TCPA law currently stands, there is no safe harbor protection for callers that call a phone number where the previous owner legally consented to be called, but (unbeknownst to the called party) that phone number had been reassigned to another person who did not consent to be called. Based on the opinion of the D.C. Circuit, we can expect a broader safe harbor provision, rather than the previous one arbitrarily limiting it to one-call, and/or an all-inclusive and regularly updated reassigned number database. Furthermore, it is likely that a more common-sense definition of ATDS will be arrived at. Notwithstanding the likely imminent change in TCPA law, it is as imperative as ever to have telemarketing practices and procedures examined by experienced counsel.