Possible Issues with FCC’s Clarifications to the TCPA
The Federal Communications Commission (“FCC”) adopted a package of declaratory rulings regarding the Telephone Consumer Protection Act of 1991 (“TCPA”), which the dissenting Commissioners warn could cause issues for businesses that communicate with their customers via phone or text messages. InfoLawGroup discussed this vote and issue in a previous post. Last week the rulings passed 3 to 2, but the order has not yet been released. However, the FCC has issued a press release. The press release, states that, “Autodialer” is defined in the Act as any technology with the capacity to dial random or sequential numbers. This definition ensures that robocallers cannot skirt consumer consent requirements through changes in calling technology design or by calling from a list of numbers.”
As we identified in our previous post, this broad definition will impact certain calls and text messages. Statements from dissenting Commissioners give us insight into the rulings and potential issues. In his dissent, Commissioner Ajit Pai stated that, “After this Order, each and every smartphone, tablet, VoIP phone, calling app, texting app—pretty much any phone that’s not a “rotary-dial phone” will be an automatic telephone dialing system.” He gives an example of how this could potentially subject innocent actors to a TCPA lawsuit.
“Jim meets Jane at a party. The next day, he wants to follow up on their conversation and ask her out for lunch. He gets her cellphone number from a mutual friend and calls her from his smartphone. Pursuant to the Order, Jim has violated the TCPA, and Jane could sue him for $500 in statutory damages. If he follows up with a text, that’s another $500 violation.”
The dissenting Commissioners also disagreed with how the declaratory rulings handle reassigned numbers. The FCC press release states that, “If a phone number has been reassigned, companies must stop calling the number after one call.” Dissenting Commissioner Michael O’Rielly described issues he sees with this,
“Today’s order offers companies fake relief instead of a solution: one free pass. That is, if a company makes a single call or text to a number that has been reassigned, the company will not be liable for that single contact. If a call is made to a wrong number (i.e., misdialed) there’s no free pass at all.
Indeed, we may have provided a new way for consumers acting in bad faith to entrap legitimate companies. A person could take a call, never let on that it’s the wrong person, and receive subsequent calls solely to trip the liability trap.”
Addressing this issue, Commissioner Pai states that, “The Order makes the situation for good-faith actors worse by imposing a strict liability standard—that is, even if a company has no reason to know that it’s calling a wrong number, it’ll be liable. This will certainly help trial lawyers update their business model for the digital age.”
To be clear, 3 others voted for adoption, including Chairman Tom Wheeler who put forth the proposal. Chairman Wheeler stated that, “Some argue that we have not updated the TCPA to reflect modern calling and consumer expectations in an increasingly mobile-phone world, and this hurts businesses and other callers. Quite the contrary: we provide the clarifications that responsible businesses need to responsibly use robocalling equipment. Indeed, we interpret the TCPA in a commonsense way that benefits both callers and consumers.” In relation to the reassignment issue, Wheeler said, “And if you have the bad luck of inheriting a wireless number from someone who wanted all types of robocalls, we have your back. We make it clear first that callers have a number of tools to detect that the number has changed hands and that they should not robocall you, and we provide the caller one single chance to get it wrong before they must get it right. This is critical because we have heard from consumers that getting stuck with a reassigned number can lead to horrible consequences. One consumer received 27,809 unsolicited text messages over 17 months to one reassigned number, despite their requests to stop the texts.”