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Paul Zimmerman
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The FCC Speaks Up and Cracks Down on TCPA Rules

UPDATE

On July 10, 2015, the FCC issued its written Declaratory Ruing. On the same day, the Association of Credit and Collection Professionals International (ACA) filed a lawsuit seeking judicial review of the ruling by the United States Court of Appeals for the D.C. Circuit. On July 14, 2015, the Professional Association for Customer Engagement, Inc., a non-profit trade organization dedicated to a multi-channel approach to engaging customers, Sirius XM Radio, Inc. also filed Petitions for review with the Court of Appeals. Numerous additional appellate challenges are expected. To read the Declaratory Ruling in its entirety, click here 


For the first time since October 2013, the Federal Communications Commission (“FCC”) has issued new rules clarifying the Telephone Consumer Protection Act (“TCPA”).  On June 18, 2015, the FCC held a public hearing to debate and clarify nearly two years’ worth of outstanding petitions that sought explanation of the rules with respect to the TCPA, and to ultimately vote on FCC Chairman Tom Wheeler’s proposed new rules.  In a hotly contested 3-2 vote, the FCC approved Chairman Wheeler’s proposed rules.  While the final version of the rule changes has not yet been reduced to a written order by the FCC, the following summarizes the rule changes that businesses which make use of an automatic telephone dialing system should immediately be aware of.  The new rules include the following changes:

•Telephone service providers may now offer robocall blocking technology to their customers or consumers. The FCC arguably previously prohibited such technology.

•Consumers now have the right to revoke their consent to receive calls and text messages by technology that qualifies as an automatic telephone dialing system, in any reasonable way and at any time. This subject has been debated by the courts for many years, leading to inconsistent rulings and splits of opinion amongst the various jurisdictions as to whether consent could be revoked, how consent could be revoked, and the manner of revocation.

•Callers will be required to stop calling reassigned wireless and wired telephone numbers after a single call.

•The new rule clarifies the definition of automatic telephone dialing system under the TCPA to include machines with a future capacity to dial randomly, sequentially and even from any kind of list loaded into the dialer. There remains debate over how the FCC will address the human intervention component and “capacity” terminology in its new written rules – but the rule potentially expands the definition of an automatic telephone dialing system rather than narrows it; this potentially heightens the consent obligations that businesses using such automated calling technology must follow.

•Consent survives when a consumer switches over his or her telephone number from a landline phone number to a cellular phone number.

•The FCC agreed to clarify the permissible exceptions to the TCPA’s “consent” requirement in circumstances that qualify as “urgent circumstances,” permitting free calls or text messages to wireless devices that alert consumers of potential fraud, or to remind them of urgent medication refills.  Whether the urgent circumstances list will be limited to the expressly listed examples, or will be exemplary of circumstances that qualify as “urgent circumstances,” remains to be seen until the final written ruling.

The final written decision by the FCC is expected within the week.  Upon issuance, businesses that make use of automatic telephone dialing technology should closely scrutinize the changes to make sure that its current and future automatic telephone dialing practices remain in compliance with and/or conform to the new rules.

The FCC’s Official News Release and full details on the Hearing, as well as the official statements by FCC Chairman Wheeler, and Commissioners Clyburn, Rosenworcel, Pai and O’Rielly, can be reviewed at https://transition.fcc.gov/headlines.html