The FCC’s New TCPA Decision: Key Issues and What Companies Should Be Doing Now That It Has Been Appealed
Reassigned/Wrong Number Wireless Calls
In the decision, the FCC clarified liability under the TCPA for callers who obtain valid “prior express consent” to call a telephone number and then, by the time they place a call to that number, reach another party because the telephone number has been reassigned.
The FCC recognized that although there are tools to help callers determine whether a telephone number has been reassigned, “they will not in every case identify numbers that have been reassigned.” Therefore, the Commission determined that when a caller believes that he or she has consent to make a call, and does not learn prior to making the call that the number has been reassigned, “liability should not attach for that first call, but the caller is liable for any calls thereafter. The caller, and not the called party, bears the burden of demonstrating: 1) that it had a reasonable basis to believe it had consent to make the call, and 2) that it did not have actual or constructive knowledge of the reassignment prior to or at the time of this one-additional-call window.” Even when this one call does not affirmatively prove to the caller that the called party is not the intended recipient of the call, the Commission assumes constructive knowledge and the caller could face liability for all subsequent calls.
Definition of Autodialer
The TCPA states that an automatic telephone dialing system (“autodialer”) is “equipment which has the capacity (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.”
In the decision, The FCC made three primary clarifications involving autodialers: 1) any equipment that could be modified to store or produce and dial random or sequential numbers could meet the definition of an autodialer, even if it is not currently being used for that purpose; 2) predictive dialers satisfy the definition for an autodialer; and 3) callers cannot avoid obtaining consent for autodialed calls by dividing equipment ownership among multiple entities.
The FCC declined to specify each type of equipment that could be considered an autodialer.
The FCC stated that a called party could revoke its previously given “prior express consent” to receiving autodialed or prerecorded calls at any time and “through any reasonable means.” It also stated that it is the burden of the caller to demonstrate that it has obtained “prior express consent” to contact the called party.
Exemption for Pro-Consumer Healthcare/Financial Communications
The FCC granted exemptions from the TCPA “prior express consent” requirements for certain financial- and healthcare-related calls and texts messages. The exempt calls and messages are subject to a number of conditions, including that they must be sent free-to-the-end-user, be limited in quantity, include an opt-out mechanism, and more.
The Maker of a Call
The Commission provided some clarification on the issue of whether the providers of texting or voice calling applications can be considered a “caller” under the TCPA. The Commission explained that “a person or entity ‘initiates’ a telephone call when it takes the steps necessary to physically place a telephone call, and generally does not include persons or entities, such as third-party retailers, that might merely have some role, however minor, in the causal chain that results in the making of a telephone call.” In determining whether there is a direct connection between the entity and the making of the call, the Commission looks at the totality of the facts and circumstances surrounding a call to determine: 1) who took the steps necessary to physically place the call; and 2) whether another person or entity was so involved in placing the call as to be deemed to have initiated it, considering the goals and purposes of the TCPA.
One-Time Automated Text Messages
The Commission clarified that a one-time text message sent immediately after a consumer’s request for a text does not violate the TCPA. However, this interpretation is only applicable if: (1) the on-demand text message has been expressly requested by the consumer in the first instance; (2) the message is a one-time message sent immediately in response to a specific consumer request; and (3) the message contains only the information requested by the consumer, with no added marketing or advertising.
What You Can Do
As noted above, the FCC’s TCPA decision became effective upon release. Given the broad scope of the decision and the number of issues addressed (and questions that remain unaddressed by the FCC), it is important for companies to take a fresh look at their compliance strategies – including mechanisms to obtain “prior express consent,” disclosure language, calling solutions, ability to process opt-out requests, and additional risk mitigation efforts. Additionally, companies should keep a close eye on the pending appeal proceedings as well as the remaining TCPA petitions that are pending before the FCC.
How Can We Help?
Our TCPA Working Group brings together more than 25 attorneys in our litigation, communications, and privacy practice areas. We provide regular TCPA counseling to clients from a broad range of industries, including technology, healthcare, communications, transportation, and financial services. We have secured dismissals and nominal settlements for clients in TCPA actions and have worked with the FCC to clarify rules addressing a number of key TCPA issues.
The authors would like to thank Gregory Oshel in the firm’s Baltimore office for his assistance in preparing this article.