This article was originally published in Venable's All About Advertising Law Blog.
After months of speculation and numerous petitions to the agency, Federal Communications Commission ("FCC") Chairman Tom Wheeler issued a fact sheet on Wednesday, May 27, addressing two dozen petitions seeking clarity on FCC enforcement of the Telephone Consumer Protection Act ("TCPA") and proposing significant actions intended to strengthen consumer protections related to unwanted calls and text messages.
In particular, the chairman's proposal addresses the meaning of the ever-controversial definition of "autodialer," the right to revoke consent to be called, the treatment of reassigned numbers, and the application of the statute to political calls to wireless numbers. The FCC is scheduled to meet to vote on the proposed updates on June 18 at an open meeting. If adopted, big changes could be in store for telemarketers. We provide a brief overview of the proposals below.
- Definition of Autodialer: The definition of autodialer has been a focal point of much of the TCPA litigation involving calls and text messages to cell phones, as plaintiffs' attorneys and telemarketers have debated its meaning for years. The existing definition – written before the commonness of cell phones – states that "autodialer" means "equipment which has the capacity to store or produce telephone numbers to be called using a random or sequential number generator and to dial such numbers." The proposal states that an "autodialer" is any technology with the capacity to dial random or sequential numbers.” This definition appears to be much broader than the existing definition, and the proposal indicates it is intended to "ensure robocallers cannot skirt consumer consent requirements through changes in calling technology design or by calling from a list of numbers." It is unclear whether the proposal will address whether capacity refers to present or actual capacity versus potential capacity, which is often the center of disagreement in the courts.
- Limited Exceptions for Urgent Circumstances: The proposal states that calls or texts to cell phones in certain limited, urgent circumstances would be allowed, including fraud alerts on bank accounts or "important" medication refills, as long as the consumer can opt-out of these permitted calls and texts. Debt collection notices would not be allowed under these circumstances.
- Right to Revoke Consent: The proposal clarifies that "consumers would have the right to revoke their consent to receive robocalls and robotexts in any reasonable way at any time." This is broad language and seemingly permits consumers to revoke consent verbally.
- Reassigned Numbers: The proposal states that "if a phone number has been reassigned, callers must stop calling the number after one call." This limitation would apply to both wireless and landline home numbers. The goal behind this proposal is to ensure consumers who inherit a phone number are not subject to "a barrage of unwanted robocalls to which a previous subscriber of the number consented."
The FCC proposal also includes authorization for carriers to offer robocall-blocking "Do Not Disturb" technologies.
Although significant changes are proposed, the FCC notes that the following existing protections will remain in place:
- Do-Not-Call list rules
- No exception for political calls to wireless phones, which continue to be subject to the general restrictions on autodialed or prerecorded/artificial voice calls
- Limits on telemarketing robocalls
- Limits on informational calls and texts to cell phones
- Strong enforcement by the Commission based on consumer complaints
We will keep our ears to the ground and let you know as soon as more information becomes available. Until then, telemarketers should mark June 18 on their calendar, as big changes could be coming.