The Federal Communications Commission (FCC) recently adopted a proposal aimed at clarifying certain provisions of the Telephone Consumer Protection Act (TCPA). The proposal addresses twenty-one (21) petitions related to the TCPA, touching on issues from robocall-blocking services to treating text messages as calls. While the actual package of declaratory rulings has not yet been released, the FCC press release announcing the decision describes the rulings as highly pro-consumer and provides little guidance for businesses on how the new rules will be implemented. Highlights of the new rules include:
The rules do not distinguish between scammers and legitimate businesses who rely on efficient telephone communication to conduct business. Moreover, two (2) of the new rules will create compliance and litigation challenges for businesses: the broad new consent rule and a clarified autodialer definition.
First, under the new consent rule, consumers will have broad ability to revoke consent, creating a substantial new burden on businesses to track and record consent. Prior to this proposal, there was a split among courts over whether a consumer could revoke consent orally or if the revocation had to be in writing. By interpreting the TCPA to hold that a consumer can revoke consent “in any reasonable way at any time,” there is now an unlimited variety of ways that a consumer could attempt to revoke consent. This will likely create a nightmare for businesses in attempting to accurately track and record consent.
Next, the FCC adopted a broad definition of “autodialer,” siding with the courts who hold that a telephone system has the statutory “capacity” if it potentially is capable of automatically dialing random or sequential numbers, even if it is not actually used in that way or if it must be altered to be capable of doing so. We previously wrote about the issues that a potential capacity rule could create. Commissioner Michael O’Reilly highlighted the problems caused by a potential capacity rule, noting that even smart phones could be autodialers under the broadened definition.
The FCC has authority under federal law to promulgate rules implementing specific areas of the TCPA. Over the years, courts have given considerable deference to the FCC’s statements. While the deference to the FCC’s interpretations and rulings is not absolute, the rulings will likely carry the force of law, absent court review of the rulings.