The Federal Communications Commission (FCC) recently showed considerable mettle by standing firm in the face of a massive onslaught by a variety of business groups largely dedicated to weakening the valuable consumer protections provided by the Telephone Consumer Protection Act (TCPA). On July 10, 2015, the FCC released a long-awaited Declaratory Ruling and Order to resolve 21 separate petitions for clarification or other action regarding the TCPA.

The majority of petitioners were industry players, such as the American Bankers Association, the Direct Marketing Association and the Retail Industry Leaders Association. The Ruling is a victory for consumers who face a seemingly never-ending barrage of calls and text messages from advertisers. The industry petitions are the result of continued legal victories by individuals harmed by invasive and unwanted robocalls and text messages, as well as by the FCC imposing regulatory fines on violators.

My earlier robocalls and spam text message post explained the specific practices that the TCPA prohibits. The statute bars unsolicited telephonic communications except for emergency purposes or from some nonprofit entities. Each violation subjects the caller to a $500 fine, which may add up quickly to million-dollar judgments or settlements where tens of thousands of individuals were targeted.

Robocallers and spam texters complain about the avalanche of litigation they face. However, instead of putting an end to the robocalls and text messages, they petitioned the FCC to change its pro-consumer interpretation of the statute — an interpretation that conforms to the text of the TCPA and its underlying purpose.

Telephone Consumer Protection Act and FCC Complaints

However, the FCC does not listen only to businesses and industry trade groups. Unwanted robocalls and text messages top the list of consumer complaints received by the FCC. In the fourth quarter of 2014, for example, the FCC received more than 36,000 informal complaints about TCPA violations. The next largest complaint subject area was “wireless telecommunications,” about which only 4,000 complaints were lodged for such issues as customer service and billing. In 2013 and 2014, the FCC received 5,000 to 6,000 TCPA complaints per month.

In its July 10 Ruling, the FCC addressed a wide variety of issues, a few of which are highlighted here. First, the FCC clarified that autodialers include dialing equipment with the potential ability to store or produce, and dial, random or sequential numbers — even if the equipment is not presently used or configured for that purpose. One such example is when a telemarketer is calling a set list of consumers.

The industry trade groups wanted to avoid liability for using autodialing equipment for any purpose other than generating and dialing random or sequential numbers. The FCC closely followed the statute, which defines “automatic telephone dialing system” as equipment with the “capacity” to store or produce random or sequential numbers and dial them. The FCC reasonably interpreted “capacity” to include potential future equipment configurations.

The FCC also ruled that consumers can revoke previously-granted consent through any reasonable means. Amazingly, Santander Consumer USA, a consumer lender and automobile finance company, wanted the FCC to rule that consent to receive telemarketing could never be revoked. If consumers initially wanted to receive advertising from a particular entity, but changed their minds because, for example, the rate and frequency of ads were increasing, they could never stop the company from contacting them.

FCC Rules that Call Permission Can Be Revoked

As an equally absurd backup position, Santander Consumer USA wanted a ruling that callers could unilaterally designate the method of revocation. The FCC rejected these positions, in light of statutory language and common law and First Amendment principles, in ruling that any reasonable means of revocation, including oral, is valid.

In addition, the FCC rejected the industry’s request for excessive lenience when calls are made to reassigned phone numbers. The FCC clarified that the term “called party” in the statute refers to the current subscriber, not the intended recipient of the call or text message. In other words, express consent of a former subscriber of a particular phone number is insufficient to permit calls to the current subscriber.

As a reasonable protection for good-faith callers, and because there is no universal database for reassigned phone numbers, the FCC ruled that a caller is not liable for calling a number for which it believes it has consent and does not discover that the number has been reassigned before making the call. However, the liability shield extends only to the first call to this number. The caller is liable for future calls.

In an odd part of the ruling, the FCC stated that businesses can obligate consumers, by contract or other agreement, who consent to receive telemarketing to notify the business when a phone number is relinquished. It is easy to imagine that businesses will now include a “phone relinquishment” clause in their standard form contracts.

But it’s unclear what the remedy would be if the consumer failed to so notify the business. If a business calls a new subscriber for a number for which the business previously had consent, the new subscriber is not party to the contract at issue.

Would the business seek indemnity for its TCPA liability from the consumer who originally consented? Although the TCPA does not prohibit this type of contractual arrangement, it is unclear why the FCC highlighted this possible defensive approach for businesses to ponder.

Several other highlights included that the court reiterated that text messages are “calls” subject to the TCPA; carriers and Internet phone providers can implement consumer-initiated call-blocking technology; “on demand” text messages sent in response to specific consumer requests do not violate the TCPA; certain pro-consumer financial- and healthcare-related messages are exempt from the consumer-consent requirement; and Internet-to-phone text messages require consumer consent.

Although not ideal in all respects, this ruling is highly beneficial for consumers and shows that the FCC is taking its consumer-protection mandate seriously.

Filing a Lawsuit for TCPA Violations for Robocalls and Spam Text Messages

Weitz & Luxenberg is investigating potential claims of TCPA violations. If you have received any of the following, please contact us at 800-476-6070:

  • Unsolicited or unwanted phone call, text message, or advertising fax;
  • Phone calls in spite of being on the Do Not Call Registry;
  • Phone calls before 8:00 a.m. or after 9:00 p.m.

If you have received these unwanted communications, you may be entitled to monetary compensation and we may be able to help you.

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