Caveat Vendor

FCC Chairman Proposes a Broad Ruling to Clarify and Expand Telemarketing Rules

May 28, 2015

Matt Gibson

In a blog post and an accompanying Fact Sheet, FCC Chairman Tom Wheeler announced yesterday proposed measures aimed at enhancing consumer protections under the Telephone Consumer Protection Act (TCPA).  As described in his post, Chairman Wheeler’s draft item would address the more than 20 pending petitions for clarification of the FCC’s TCPA rules in order to “send one clear message: consumers have the right to control the calls and texts they receive, and the FCC is moving to enforce those rights and protect consumers.” Chairman Wheeler has circulated his draft order to his fellow Commissioners and has scheduled the item for a vote during the full Commission’s next open meeting on June 18.
Although the full extent of the Chairman’s proposal will not be known until the FCC has adopted the item and released the official text, the Chairman’s announcement suggests that the proposed order could have significant impacts for telemarketers.  As described in the Fact Sheet, the Chairman’s proposal would clarify the FCC’s TCPA rules in six primary areas:

• (Re-)Defining Autodialer.  As described in the Fact Sheet, to “ensure robocallers cannot skirt consumer consent requirements” with calling technology, the Chairman’s draft proposes to define an automated telephone dialing system (ATDS) as “any technology with the capacity to dial random or sequential numbers.” Because the presence or absence of an ATDS is often a critical factual element in TCPA class action litigation, several of the petitions now pending before the FCC have sought clarification of this definition.  As a result, any movement by the FCC on the definition of ATDS could have a significant impact in pending and future TCPA class action litigation.

• Revocation of Consent.  The draft item enhances a consumer’s ability to revoke his or her consent to receive automated calls “in any reasonable way at any time.”

• Do Not Disturb Technologies. The draft also includes provisions that would enable carriers to develop and offer new technologies that would enable consumers to block incoming telemarketing calls.

• Treatment of Reassigned Numbers. To address the issue of calls to telephone numbers that have been reassigned to different subscribers, the draft item requires callers to stop calling a reassigned number “after one call.”

• Defining Narrow Exceptions to Mobile Phone Consent Rules.  In his draft, the Chairman proposes to define more clearly certain narrow exceptions to the TCPA’s prior consent requirements for automated calls and texts to mobile phones.  Examples cited in the Fact Sheet include financial fraud alerts and prescription refill alerts.

• Affirmation of Consumer Rights. The draft also includes language that seeks to affirm consumers’ “ultimate right to control the calls they receive.”
  In his announcement, Chairman Wheeler also emphasized that the draft order would maintain existing consumer protections under the TCPA (including those relating to the Do-Not-Call list, consent requirements for automated calls, and the application of the TCPA’s consent requirements for political calls to mobile phones).  After touting the FCC’s $2.9 million TCPA fine last year and nearly $450,000 in TCPA fines levied so far this year, Chairman Wheeler also affirmed that the FCC’s Enforcement Bureau will continue to actively enforce the FCC’s TCPA rules.
  A more detailed analysis will be prepared once the full Commission has voted on the Chairman’s proposal.

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