Date: Jun 22, 2015
At its Open Meeting on June 18, 2015, the Federal Communications Commission (“FCC” or “Commission”) adopted a significant Declaratory Ruling and Order to clarify aspects of the Telephone Consumer Protection Act (“TCPA”), namely, the use of automatic dialing systems and/or artificial or prerecorded voice messages to send telemarketing and informational calls and texts to consumers (“robocalls”). The Order follows a proposal circulated by FCC Chairman Wheeler last month to address nearly two dozen TCPA petitions filed with the FCC, “close loopholes” in the TCPA, and “crack down” on robocalls. The text of the Order has not yet been released, but it will take effect immediately, and will impact all businesses that use automated technologies, including text messaging, to communicate with consumers.
Among other things, the TCPA prohibits autodialed and artificial or prerecorded voice message calls and texts, unless made for “emergency purposes” (defined as “a situation affecting the health and safety of consumers”) or with the called party’s consent. The type of consent required depends on the nature of the call (i.e., telemarketing or non-commercial/informational), and the type number called (i.e., wireless or residential); telemarketing calls to wireless numbers and residential lines require written consent, while informational calls to wireless numbers require consent, which need not be written, and informational calls to residential lines require no consent. While text messaging and other technologies available today did not exist in 1991 when the TCPA was enacted, the FCC has clarified that the TCPA applies to text messaging. The proliferation of text messaging and other technologies makes it imperative for all businesses to understand the requirements for communications that advertise a product or service or provide important information relating to a purchase or a customer’s account.
The intent of the TCPA, and the purported intent of the Order, is to protect consumers from unwanted, harassing calls without impeding legitimate communications from businesses, but aspects of the Order could subject even the most well-intentioned businesses to an increased risk of FCC or state enforcement and/or class action lawsuits. The penalties for non-compliance can add up quickly, with statutory damages of $500 per call/text ($1,500 if willful).
We describe below some highlights of the Order based on the FCC’s News Release and discussion at the Open Meeting, and some practical implications for businesses. We will provide more details once the Order is released.
These are just some of the highlights and potential implications of the FCC’s TCPA Declaratory Ruling and Order, and we expect that the text of the Order, once released, will provide further clarification. Given the significant impact of the Order and the number of petitions and comments that were filed with the FCC, this is not the end of the discussion on the TCPA and the FCC’s interpretation of the Act. Indeed, legal challenges and/or legislative action cannot be ruled out.
For more information, contact Tracy P. Marshall at firstname.lastname@example.org or +1 202 434-4234. Follow privacy, advertising, and data security developments and similar topics on Keller and Heckman’s Consumer Protection Connection blog.