On June 18, 2015, a divided FCC adopted a declaratory ruling and order designed to provide additional protection to consumers and guidance to businesses with respect to unwanted robocalls and text messages. Alleged violations of the Telephone Consumer Protection Act (“TCPA”) constitute the largest number of consumer complaints to the FCC. While the ruling and order has not been released as of the time of this Alert, a new release is available: FCC Strengthens Consumer Protections Against Unwanted Calls and Texts
Congress enacted the TCPA in 1991, one of the most popular pieces of legislation in U.S. history. The TCPA was enacted to address intrusive nuisance calls and practices that invade consumer privacy. While the TCPA does not comprehensively regulate or prohibit all commercial texts and messages, the FCC’s implementing regulations have given rise to a flood of class action law suits over unsolicited commercial text messages and calls. The FCC lacks authority to expand the statutory definitions as set forth by Congress in the TCPA. Nonetheless, in its action this week, the FCC addressed 23 requests for clarification of the law.
The TCPA and its implementing rules require “prior express consent for non-emergency autodialed, prerecorded, or artificial voice calls to wireless phone numbers, as well as for prerecorded telemarketing calls to residential wireline numbers.”
The FCC made the following declaratory rulings.
- Service providers can lawfully offer robocall blocking solutions to consumers;
- Consumers can revoke consent to receive robocalls and texts in any reasonable manner, at any time;
- A party can make a single call to a reassigned number, but any additional calls to that number constitute TCPA violations;
- Third-party consent is insufficient to permit robocalls;
- The definition of “autodialer” is broadened to include “any technology with the capacity to dial random or sequential numbers”;
- TCPA protections extend to text messages as well as voice calls; and
- Equipment that can sent Internet-to-phone text messages constitutes an autodialer.
Finally, the FCC created extremely narrow and specific exceptions for “urgent circumstances,” which permit “[f]ree calls or texts to alert consumers to possible fraud on their bank accounts or remind them of important medication refills, among other financial alerts or healthcare messages, are allowed without prior consent.” The Commission noted, however, that any other types of financial- or healthcare-related calls, including calls that contain marketing or debt collection attempts, are prohibited. Moreover, consumers may opt out of these calls at any time.
By and large, the FCC’s decisions provide little relief for businesses that sought more freedom in reaching their customers or ability to use new technology without it being branded as an “autodialer,” but rather, strengthened the hand of consumers. We expect the FCC to enforce these new rules aggressively with monetary forfeitures when possible; state attorneys general and public utility commissions to push service providers, including I-VoIP operators, to offer call-blocking services to customers, most likely at little or no charge; and for the plaintiffs’ bar to continue to pursue class action lawsuits. Also, since many of these robocalls or robotexts are initiated outside the United States, carriers or other service providers with international gateway facilities may well see extra “pressure” to block robo-traffic.
Companies intending to send commercial text messages or calls should review industry best practices as well as comply strictly with the law and implementing regulations. Given the flood of class action litigation related to calls and texts, companies should consider alternate marketing campaigns, such as emailing in compliance with the CAN-SPAM Act. If you have any questions about this Alert or marketing practices and consumer protection restrictions generally, please contact Linda McReynolds, firstname.lastname@example.org – 703-714-1318; Jane Wagner, email@example.com – 703-714-1321; or Robert Jackson, firstname.lastname@example.org – 703-714-1316.