On October 9, 2015, the Federal Communications Commission (FCC) published a notice in the Federal Register clarifying and summarizing its Declaratory Ruling and Order of July 20 concerning the Telephone Consumer Protection Act (TCPA) for unsolicited robocalls and spam text messages. This Order rejected the vast majority of industry petitions to weaken consumer protections under the TCPA and establish pro-industry rules that would have shielded many robocallers and spam texters from liability for the near-perpetual harassment that they cause many consumers to suffer.
The Federal Register notice comes shortly after the filing of consolidated appeals by an array of industry players in the U.S. Court of Appeals for the District of Columbia Circuit challenging the substance of the FCC’s Order. (The lead appeal is known as ACA International v. FCC, Case No. 15-1211.) Although the appeals seemingly did not cause the FCC to publish this notice in the Federal Register, an understanding of the appeals and the notice helps provide a roadmap of where the ongoing TCPA saga may go.
FCC Order on Robocalls and Spam Text Messages
A previous TCPA blog post explained the harassing and harmful telemarketing, robocalling, and spam texting that the TCPA aims to stop. In short, the statute bars most unsolicited telephonic communications. 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.
A follow-up TCPA blog post described how the FCC stood firm in the face of an industry onslaught by issuing the July 20 Order.
The notice repeats and emphasizes much of what is contained in the July 20 Order. In this way, it should be viewed as an assertion by the FCC that it meant what it said ¾ that it “strengthened the core protections of the TCPA by confirming that:
- “Internet-to-phone text messages require consumer consent;
- “Text messages are ‘calls’ subject to the TCPA . . . [,]” as many courts and the FCC had previously determined.
- “Callers cannot avoid obtaining consumer consent for a robocall simply because they are not ‘currently’ or ‘presently’ dialing random or sequential numbers[.]” This means that using dialing equipment that has the potential to dial random or sequential numbers is sufficient to incur liability.
- “Simply being on an acquaintance’s contact list does not amount to consent to receive robocalls from third-party applications downloaded by the acquaintance[.]” The FCC reiterated that express, written consent is required from the person being called. This is also just common sense.
- “Callers are liable for robocalls to reassigned wireless numbers when the current subscriber to or customary user of the number has not consented, subject to a limited, one-call exception for cases in which the caller does not have actual or constructive knowledge of the reassignment[.]” Callers thus have one get-out-of-jail-free card.
In addition, the FCC clarified that “[c]onsumers may revoke consent at any time and through any reasonable means” and that carriers may implement “consumer-initiated call-blocking technology” to help stop robocalls.
The FCC’s July 20 Order is quite balanced. For example, text message application providers such as WhatsApp are not per se liable if they play only a “minimal role in sending text messages”; senders of on-demand text messages in direct response to consumer requests do not face liability; and, subject to strict privacy protections, “certain free, pro-consumer financial and healthcare-related messages may be sent without consumer consent.”
Industry Goes to Court Against FCC TCPA Order
Instead of seeking to avoid liability by complying with the FCC’s Order, many businesses went straight to court. The robocalls and spam text messages which led to the TCPA in the first place, and which have subjected many companies to multimillion dollar liability cases under the TCPA, must be so profitable that complying with the FCC’s Order is just unacceptable. These businesses are placing their own profits ahead of consumers’ interest in living free of robocalling and spam texting harassment. In my view, this all shows that the FCC is doing its job to protect us.
The appeals focus on three main issues, all of which are critical to consumer protections. First, industry wants to avoid liability for using autodialing equipment with the potential to dial sequential or random numbers if the equipment is not presently used for this purpose. The statute, however, imposes liability for equipment with the “capacity” to dial sequential or random numbers. This issue is important for consumers because proving that dialing equipment was used in a particular manner for one specific call could be impossible. Focusing on the equipment’s capacity ¾ or potential ¾ will help keep industry honest.
Secondly, the industry wants to avoid liability for calling reassigned numbers and wants more than the one-call exception to liability. In other words, industry wants the focus to be on the intended recipient of the call rather than the actual recipient.
But, clearly the actual recipient is harassed by unwanted calls and businesses could not rationally argue that they would not accept a sale from an unintended, but actual, call recipient. Many of us have received calls from telemarketers who seem to be calling someone else but quickly shift their message to our circumstances.
And the one-call exception is reasonable. If there is no answer, that number should be removed from the call list.
Finally, industry wants to be able to dictate by what means consent can be revoked. Businesses see the “by any reasonable means” standard as violating their ability to defined revocation by contract. Abstractly, this makes sense and honors our ability to freely make contracts. But so often this freedom is abused by placing onerous restrictions on revocations in the fine print of consumer contracts ¾ contracts which the average consumer has no leverage to negotiate or alter.
The parties have not yet briefed these issues in the appeal, and this blog will keep you updated as the case develops. For now, thankfully, the FCC Order’s consumer protections are in place. But this Order will not necessarily keep businesses from violating the TCPA.
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.