On Friday, July 10, the Federal Communications Commission (“Commission”) released its awaited Declaratory Ruling and Order (“Order”) clarifying the protections offered under the Telephone Consumer Protection Act (“TCPA”). While the Order aims to address consumers’ frustration over ongoing robocalls and clarify the TCPA for users of automatic calling technology and prerecorded messages, it’s not clear whether the Order will help consumers cut down on the number of unwanted robocalls they receive, nor is it clear that the Order provides the kind of clarity and certainty legitimate businesses need to continue using automated technologies.
Perhaps most notably, the Order permits, but does not require, carriers and VoIP providers to offer consumer-initiated call-blocking technology for robocalls. Commission precedent prohibits providers from blocking calls based on their own discretion (i.e., inadvertently block desired calls). However, the Commission believes that it can reconcile providers’ general call completion obligations with the use of call-blocking technology by requiring providers to make full disclosures regarding the limitations of call-blocking technology.
The Order also addresses a number of petitions that were before the Commission regarding what constitutes consent to receive a robocall. The Order clarifies that: (1) being on an acquaintance’s phone contact list does not constitute consent to receive robocalls from third party applications downloaded by the acquaintance; (2) consent is required for text messages, including internet-to-phone text messages; and (3) callers using an auto-dialer must obtain consent, even if the auto-dialier is not presently being used to generate random numbers, including when the caller is calling a set list of consumers. The Order also clarifies that a caller is liable for robocalls to a reassigned number for which the caller previously had consent, subject to a one-call exception where the caller does not have knowledge of the reassignment. Finally, the Order allows consumers to revoke consent at any time through any reasonable means.
The Order also provides limited protections for robocallers and the companies that rely on robocallers. The Order clarifies that:
- Application providers that play a minimal role in sending text messages are not per se liable for unwanted robocalls;
- Collect-call services that provide consumers with valuable call set-up information are not liable for making unwanted robocalls;
- On demand text messages sent in response to a consumer request are not subject to TCPA liability; and
- Certain free, pro-consumer financial- and healthcare-related messages are not liable for making unwanted robocalls, subject to strict conditions and limitations to protect consumer privacy.
Finally, the Order grants an 89 day waiver of the 2012 express written consent rules for the Petitioners, so Petitioners can come into full compliance with the Order within 90 days.
Our firm is currently analyzing the 130+ page Order and will be preparing a detailed summary along with analysis of the potential impact of the Order. Clients interested in obtaining a copy of our analytical summary for a fixed fee cost should contact the attorney assigned to their account. If you have any questions about the ongoing changes to the TCPA or the application of the TCPA to your company, please contact Linda McReynolds, firstname.lastname@example.org – 703-714-1318; Jane Wagner, email@example.com – 703-714-1321; Robert Jackson, firstname.lastname@example.org – 703-714-1316; or Seth Williams, email@example.com – 703-714-1326.