In its most significant action on the Telephone Consumer Protection Act (TCPA) since its revised TCPA rules took effect in late 2013, the Federal Communications Commission (FCC) has issued a package of declaratory rulings resolving almost two dozen petitions seeking clarification on TCPA issues. These rulings, proposed by FCC Chairman Tom Wheeler and adopted during an open meeting on June 18, 2015, begin to address the long backlog of TCPA petitions that had been awaiting FCC action as a wave of TCPA class action litigation has flooded courts across the country. Businesses seeking to comply with unclear rules and conflicting court rulings sought clarification on many issues which had not been previously addressed by the FCC. See Sutherland’s Legal Alert “Will the FCC Answer Calls to Clarify the TCPA?”

In a press release, the FCC indicated that it views the TCPA as an essential consumer protection tool against unwanted telemarketing and robocalls and stated that the package “strengthens consumer protections against unwanted calls and texts.” As a result of this view, the business community was denied in its efforts to seek change and/or clarification on a number of issues, and several aspects of the TCPA will continue to be an issue for legitimate businesses seeking to comply with the statute. As indicated in its press release, the FCC is taking the following action, among others.

Definition of Autodialer. More than half a dozen petitions had been filed seeking clarification on the definition of autodialer. The FCC reiterated that under its rules an autodialer is technology with the capacity to automatically dial random or sequential numbers or call from a list.
Calls to Reassigned Numbers. Numerous petitions requested that the FCC create a safe harbor for calls to reassigned numbers. Businesses have no reliable way to identify reassigned numbers and may continue to make calls to numbers where the former subscriber consented to receive calls. Several courts have held that such calls constitute a violation of the TCPA even where the prior subscriber consented to the calls, and the business did not know the number had been reassigned. The FCC declined to create a complete safe harbor and instead adopted a rule that the first call to a reassigned number will not trigger liability under the TCPA. This new rule, however, fails to address the core problem, because a business could make multiple calls before learning that the number has been reassigned.
Revocation. The FCC increased the compliance burden on revocation of consent by adopting a rule that a consumer may revoke consent to be contacted by any reasonable means and at any time.

The new rules have also brought changes regarding Do Not Disturb technology, which is now expressly permitted. Also, the FCC has adopted a new limited exemption to consent standards for “urgent calls,” such as a fraud alert on a bank account.

Other core consumer protections in the TCPA and FCC rules remain unchanged. These consumer protections include:

1. The National Do-Not-Call Registry will be unchanged by this proposal.
2. Prior express written consent will still be required for telemarketing robocalls to both wireless and landline home phones.
3. Autodialed and prerecorded calls and texts to wireless phones require prior consent, whether they are telemarketing or informational calls.
4. Political calls to wireless phones are subject to the general restrictions on prerecorded and artificial voice calls and autodialed calls. Political calls are not subject to the National Do-Not-Call Registry because such calls do not include telephone solicitations.

Stay tuned for “Call Answered (The Second Ring),” which will provide a more comprehensive analysis of the FCC’s June 18 rulings.