FCC Holds Contentious Open Meeting, Majority Votes To Arm Plaintiffs With New Swords And Businesses With Few Shields

In the wake of its Open Meeting earlier today, the FCC issued a press release that promises “a package of declaratory rulings” that will bring “much needed clarity for consumers and businesses” on a variety of topics. Whether the rulings provide more answers than questions remains to be seen, as the Commission has yet to issue its order. What was on full display during the meeting and the subsequent press conferences, however, was how disenchanted Commissioners Pai and O’Rielly were with how the order had been negotiated. Neither they nor Chairman Wheeler were willing to elaborate in response to questions from reporters.

Consistent with the fact sheet that we discussed a few weeks ago, the rulings previewed by the press release would among other things:

  • Authorize service provides to “offer robocall blocking technologies to consumers and implement market-based solutions that consumers can use to stop unwanted robocalls”;
  • Affirm the view that “consumers have the right to revoke their consent to receive robocalls and robotexts in any reasonable way at any time”;
  • Require that “companies must stop calling [a reassigned number] after one call”;
  • Rule that “A consumer whose name is in the contacts list of an acquaintance’s phone does not consent to receive robocalls from third-party applications downloaded by the acquaintance”;
  • Take the position that the definition of an ATDS includes “equipment used to send Internet-to-phone text messages” so as to not allow telemarketers to “skirt consumer consent requirements through changes in calling technology design or by calling from a list of numbers”;
  • Reaffirm its position that “consumers are entitled to the same consent-based protections for texts as they are for voice calls to wireless numbers”; and
  • Allow alerts to consumers about “possible fraud on their bank accounts” or “important medication refills” so long as these calls are “free.”

Although the order itself may have some silver linings for businesses that are not immediately apparent from the press release, the statements made during the FCC open meeting suggest that the FCC missed an opportunity to provide businesses with not only actionable rules but also reasonable protections. It is no secret that the TCPA’s uncapped statutory damages have given rise to a cottage industry that will target any arguable infraction in the hopes of extorting jackpot settlements from businesses faced with theoretical exposures in the millions if not billions of dollars. The apparent failure to address this by safe harbors or by other measures is a disappointing result that fails to benefit anyone other than lawyers who may seek to open a new range of actions based on the FCC’s actions. We certainly hope that the yet to be issued order takes these concerns into the mix as the order is finalized.

Michael P. Daly

About the Author: Michael P. Daly

Mike Daly has spent two decades defending, counseling and championing clients that interact with consumers. His practice focuses on defending class actions, handling critical motions and appeals, and maximizing the defensibility of marketing and enforceability of contracts. Clients large and small have trusted him to protect their businesses, budgets and brands in complex cases across the country.

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