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The Federal Communications Commission (“FCC” or “Commission”) continued to step up its enforcement of the Telephone Consumer Protection Act (“TCPA”) last month. As our firm has noted, the FCC’s Enforcement Bureau intends to step up enforcement of the TCPA. It first signaled this stepped up enforcement last year when it issue a Notice of Apparent Liability (“NAL”) to Dialing Services, LLC, a calling platform, for making unlawful robocalls to cell phones.
On May 4, 2015, the FCC’s Enforcement Bureau issued citations to three more robocalling platforms for making unlawful robocalls to cell phones. A citation is a preliminary step in the FCC’s enforcement process. It must issue a citation before issuing an NAL to any person or entity that does not hold, or is not an applicant for, a license or other authorization issued by the Commission. The Commission cited Call-Em-All, LLC, Ifonoclast, Inc., d/b/a Phonevite, and M.J. Ross Group, Inc., d/b/a PoliticalRobocalls.com for violations of Section 227(b)(1)(A)(iii) of the Communications Act and Section 64.1200(a)(1)(iii) of the Commission’s rules, which prohibit making a prerecorded or autodialed call to a cell phone unless the call is made for emergency purposes or is made with the prior express consent of the called party.
Like the Dialing Services NAL, each of the companies cited by the FCC last month provided their clients with a means of recording or uploading a prerecorded message. The companies also all played some role in maintaining the list of numbers to be called, either by sending the prerecorded message to a list of numbers provided by the client or, in some cases, by selling a list of numbers to the client. Based on the citations issued last month and the Dialing Service NAL, calling platforms involved in the creation and maintenance of prerecorded messages and calling lists for clients appear to be at the highest risk for enforcement action by the FCC.
However, FCC Enforcement Bureau Travis LeBlanc has said that a robocalling platform could be held liable under the TCPA even if it does not assist its clients in creating prerecorded messages or calling lists. In the Dialing Services NAL, the Commission identified 11, non-exclusive factors it considered relevant in holding Dialing Services liable for TCPA violations. The factors include that Dialing Services:
- Provides the software platform that incorporates the functionality for making artificial or prerecorded voice calls;
- Leases or otherwise secures from the LEC or VoIP provider the necessary telephone connections for making calls;
- When requested, purchases voter lists for its clients’ use;
- Provides technical support to assist clients;
- Reviews or edits messages if the messages appear to be in furtherance of unlawful or fraudulent activity;
- Reviews the phone numbers to be called to determine if they are valid ten-digit numbers and informs the client of the total number of calls that will be made;
- Transmits the calling party number to be displayed by the call recipients’ caller identification services; (Dialing Services can also transmit “spoofed” caller ID numbers and names that are displayed at a client’s request.)
- Stores the prerecorded messages on services owned, leased or otherwise under Dialing Services control;
- Has pre-programmed its software platform to detect whether the call has been answered by a live person, or by an answering machine or voice mail system, and to select whether and when to play the prerecorded message; and
- Dialing Services alone dials the telephone numbers and makes the calls – and the customers pay the Company so that it will do so.
Other TCPA News and Notes:
The Chairman of the FCC, Tom Wheeler, has also announced that the FCC plans to strengthen the TCPA and address several pending TCPA petitions for declaratory ruling at the Commission’s June Open Meeting. The proposals announced by the Chairman include permitting consumers to request that their carrier block calls and texts from robocallers, permitting consumers to revoke their consent to receive robocalls or robotexts in any reasonable way at any time, clarifying the definition of autodialer to include any technology with the capacity to dial numbers randomly or sequentially, and clarifying that reassigned numbers may not be called more than once after being reassigned. While the Chairman says these decisions will help clarify the scope and application of the TCPA, they may force significant changes on carriers and the robocalling industry. Some of the proposals may also require further rulemaking by the Commission, which would allow interested commenters to express any concerns with the Commission’s proposals.
The proposals will be voted on at the Commission’s Open Meeting on June 18. We will provide additional information about the proposals, including any effective dates, after the Open Meeting. If any of the proposals requires additional rulemaking, we will also provide information regarding the comment deadlines for the rulemaking proceedings as soon as possible.
If you have any questions about the application of the TCPA to calling platforms or the application of the TCPA to your business generally, please contact Jane Wagner: firstname.lastname@example.org – 703-714-1321; Linda McReynolds: email@example.com – 703-714-1318; or Robert Jackson: firstname.lastname@example.org – 703-714-1316.