On May 27, 2015, FCC Chairman Tom Wheeler circulated a proposal to his fellow commissioners seeking to address the backlog of petitions concerning the TCPA currently awaiting disposition. A Fact Sheet issued by the FCC yesterday indicated that the Chairman’s proposal contains “a set of actions that, if adopted, will close loopholes and strengthen consumer protections already on the books,” hailing the proposal as “one of the most significant FCC consumer protection actions since it established the DNC registry with the FTC in 2003.” These lofty aspirations, however, were not accompanied by specific proposals from the Chairman, but with general and somewhat confusing statements leaving industry and consumer protection observers in a fog as to how the agency will rule on the issues.
As is typical of most FCC announcements, the Chairman’s proposal is couched in terms of protecting consumer privacy, but several of the proposed rulings appear to provide industry with some promise of relief from the ambiguities currently fueling consumer class action lawsuits. The following are some of the Chairman’s proposals and a brief discussion of the issues they raise.
- Allow consumers the right to revoke their consent to receive automated “robocalls” and texts in any reasonable way at any time. As the TCPA and FCC rules are silent regarding a consumer’s right to revoke consent, various courts have grappled with this question with differing results. This ruling appears to address this issue head-on by confirming a consumer’s right to revoke consent. But what remains unclear until June 18 is what the Commission means by allowing “any reasonable way” to affect such an election. The wording of this proposal suggests that the options would not be limited to the manner by which the original consent was granted.
- Callers would be prohibited from calling reassigned telephone numbers after one call. Probably the most confusing of all the proposals, this ruling would appear to permit callers to call a reassigned number only once before facing liability. But what it doesn’t address is how a caller would know whether a number has been reassigned. We venture to guess that the Chairman is proposing to place liability on a caller only after being notified by the called party that the number has been reassigned, something akin to a company-specific do-not-call request.
- The definition of an “automatic telephone dialing system” would be interpreted to encompass any technology with the capacity to dial random or sequential numbers. Possibly a nod to industry, this proposal would address one of the most confusing and polarizing terms in TCPA decisions. Courts have spilled much ink on the issue of whether the term “capacity” should be broadly interpreted, which, as one judge has commented, would result in every iPhone falling within the TCPA’s purview, or narrowly read to mean the dialer’s “current” ability and use. Also fueling the debate is the punctuation and grammar in the current definition that has resulted in an ambiguity as to the applicability of the terms “random and sequential” in regard to capacity. Marketers and service providers are hopeful that the Chairman’s proposal will adopt a reasonable approach and make clear that the definition of an autodialer is limited to its current capacity and actual use, if just to shield all smartphone users from liability.
Other of the Chairman’s proposals covered in the Fact Sheet include:
- Allowing carriers to offer robo-blocking technologies to consumers.
- Allowing an exception from the TCPA consent requirements for free calls and texts in urgent circumstances, such as bank account fraud or important medication refills, but not for marketing or debt collection.
The Chairman’s proposal, available here, is scheduled to be voted on as a single omnibus item by the full Commission at its next Open Meeting on June 18, 2015. If approved by the Commission, these declaratory rulings would take effect immediately upon release.