On July 10, 2015, the Federal Communications Commissioner (“FCC”) released a Declaratory Ruling and Order (the “Ruling”) clarifying various aspects of the Telephone Consumer Protection Act (“TCPA”). 1 Highlights of the Ruling include the following:
Definition of Autodialer
Generally speaking, the TCPA requires the consent of the called party before a call may be placed to a wireless number using an “automatic telephone dialing system” or autodialer. The TCPA defines an autodialer to mean equipment that has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator, and to dial such numbers. Taking an expansive view, the Ruling states that “capacity” includes not just the present ability, but also “potential ability” to perform the functions specified in the definition of autodialer. The Ruling does not define with clarity what the potential ability to function as an autodialer means, although it does state that a “theoretical potential” alone is not enough. Perhaps the clearest indication of the FCC’s view is its statement that “the basic functions of an autodialer are to ‘dial numbers without human intervention’ and to ‘dial thousands of numbers in a short period of time.’”
Establishing and Revoking Consent
The Ruling clarifies that consent to receive calls at a wireless number may be given by the subscriber—i.e., the person assigned the number and billed for the call—or by the non-subscriber customary user of a number included in a family or business calling plan.
The Ruling states that consumers have a right to revoke consent “using any reasonable method including orally or in writing.” (Emphasis added). For example, consumers generally may revoke consent “by way of a consumer-initiated call, directly in response to a call initiated or made by a caller, or at an in-store bill payment location, among other possibilities.” According to the FCC, “in these situations, callers typically will not find it overly burdensome to implement mechanisms to record and effectuate a consumer’s request to revoke his or her consent.” In light of these statements, businesses engaged in practices regulated by the TCPA should review their points of contact with consumers to be certain they have appropriate procedures in place to record and promptly implement requests to stop autodialed or other regulated calls.
Reassigned Wireless Numbers
The Ruling establishes a one-call rule for wireless numbers that have been reassigned to a number for which the subscriber or customary user has not consented to calls. Under this rule, a caller who previously obtained consent and does not know that a number has been reassigned may make one call after reassignment without incurring liability for violating the TCPA. Any further calls without consent will result in liability. This is so even if the one additional call does not yield actual knowledge that the number has been reassigned. According to the FCC, once the additional call is made, the caller is deemed to have constructive knowledge of the reassignment, and any further calls will constitute a violation.
The FCC justifies this position by asserting that callers have many options they may employ that, “when used as a normal practice of business, make it possible in most circumstances to comply with the TCPA….” The FCC cites a number of ways it believes callers may avoid calling reassigned numbers, including by using commercial databases and other methods. Many of the methods cited in the Ruling, such as recording wrong numbers reached by customer service representatives during outbound calls or relying on customers to update their contact information, seem unlikely to be effective. Other approaches discussed by the Ruling—for example, “creating, through a contract or other private agreement, an obligation for the person giving consent to notify the caller when the number has been relinquished”—appear impracticable in the extreme.
Consistent with prior statements, the Ruling confirms that text messages are subject to the same requirements under the TCPA as voice calls. The Ruling also clarifies that equipment used to send Internet-to-phone text messages constitutes an autodialer. More generally, the Ruling states that other types of text messaging technologies that could “open a floodgate of unwanted text messages to wireless consumers” are subject to the TCPA. “Specifically, consumer consent is required for text messages sent from text messaging apps that enable entities to send text messages to all or substantially all text-capable U.S. telephone numbers, including through the use of autodialer applications downloaded or otherwise installed on mobile phones.”
The Ruling clarifies that a one-time text message sent in response to a consumer’s request for information does not violate the TCPA so long as it (1) is requested by the consumer, (2) is a one-time only message sent immediately in response to a specific consumer request and (3) contains only the information requested by the consumer with no other marketing or advertising information. This aspect of the Ruling will be helpful to businesses that publish or display a “call-to-action,” receive specific requests from consumers in response and wish to respond with a text message providing the requested information.
Exemption for Fraud and Security Breach Alerts and Similar Messages
In response to a request from the American Bankers Association, the Ruling exempts from the TCPA’s consumer consent requirements certain calls made by financial institutions that are not charged to the recipient and are designed to prevent fraudulent transactions or identity theft, respond to a data security breach or notify the recipient of steps needed to receive a money transfer. The Ruling establishes a number of conditions such calls must meet to qualify for the exemption. Among other things, the financial institution may make no more than three calls (whether by voice call or text message) for any one event over a three-day period and must provide recipients with an opt-out mechanism that meets certain requirements. A “financial institution” qualifying for the exemption includes an insurer.
Exemption for Health Care Provider Messages
The Ruling also exempts from the TCPA’s consumer consent requirements certain informational calls made by health care providers that are not charged to the called party, including appointment and examination confirmations and reminders, wellness checkup messages, prescription notifications and insurance coverage payment outreach and eligibility messages. HIPAA-covered calls to a wireless number already are exempt from the TCPA’s written consent requirement. The Ruling would further exempt the specified calls from the TCPA’s general consent requirement. To qualify for the exemption, such calls must meet certain conditions similar to those that apply to fraud alerts and similar messages from financial institutions.
Call Blocking Technology
In response to a petition by 39 State Attorneys General, the Ruling clarifies that nothing in the Communications Act or the FCC’s rules or orders prohibits carriers or Voice over Internet Protocol providers from implementing call-blocking technology to help consumers stop unwanted calls and messages. Because of the potential for such technology to block desired as well as undesired calls, the Ruling requires providers to adequately disclose the risks of inadvertent blocking to consumers. In addition, the FCC strongly encouraged providers to avoid blocking calls from public safety entities.
1 In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Declaratory Ruling and Order, FCC 15-72 (released July 10, 2015).