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Courts Rein In TCPA “Revocation Of Consent” Claims

In TCPA Blog’s latest column for Law360, Mike Daly and Dan Brewer discuss the increasingly common “revocation of consent” claim. After the FCC held that consent can be revoked through “any reasonable method,” businesses found themselves struggling to comply with that directive, and plaintiffs found themselves with yet another “gotcha” claim to assert:

The two years that followed the FCC’s ruling have been marked by a dramatic uptick in what had already been a staggering number of TCPA filings, particularly “revocation of consent” claims of the sort predicted by Chairman Pai. Entrepreneurial plaintiffs have even taken to manufacturing such claims by ignoring prompts to text “STOP” and replying instead with “halt,” “cease,” “desist,” “discontinue,” “refrain,” or some other response that is designed to slip through the sender’s automated system for recognizing and registering revocations of consent. Although such contrivances are anything but “reasonable,” plaintiffs know that defending such claims are not without cost or inconvenience, and businesses continue to receive complaints and demand letters every day.

The article then details how a number of courts have started to push back on such claims, for example because the attempt to revoke consent was not “reasonable,” or because consent had been provided in a bilateral contract and therefore could not be unilaterally revoked.

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FCC Releases Two Notices of Inquiry Addressing Reassigned Numbers and Caller ID Spoofing

The FCC released two notices of inquiry (NOIs) related to TCPA issues last week: one on how to better track reassigned numbers, and another on tightening industry wide techniques to discourage Caller ID spoofing, one category of illegal robocalls. Each NOI seeks public comment.

Reassigned Numbers NOI

On July 13, 2017, the FCC released an NOI addressing the issue of identifying reassigned phone numbers. Specifically, as the FCC notes, in many cases the recipient of a reassigned number may be subject to unwanted calls that the prior holder of the number consented to; and conversely, the previous holder of the reassigned number is no longer receiving those calls for which she gave consent. According to the NOI:

Approximately 35 million telephone numbers are disconnected and aged each year, and according to one source 100,000 numbers are reassigned by wireless carriers every day. Consumers change telephone numbers for a variety of reasons, including switching wireless providers without porting numbers and getting new wireline telephone numbers when they move. Once a consumer drops a number, he or she might not update all parties who have called in the past, including robocallers to which the consumer gave prior express consent. NOI, ¶ 5.

In light of the FCC ruling in July 2015 that clarified a range of potential liabilities for calling reassigned numbers, the issue has resulted in a substantial amount of litigation and liability risk for companies that have received consent to place calls to numbers that have subsequently been reassigned. Further, the FCC notes that, despite the TCPA and FCC rules, complaints about unwanted calls, historically have been one of the FCC’s largest sources of informal complaints.

Continue reading “FCC Releases Two Notices of Inquiry Addressing Reassigned Numbers and Caller ID Spoofing”

As Contemplated By the FCC?: TCPA Defendant Seeks Indemnification From Consumer Who Provided Plaintiff’s Mobile Number

One of the central issues in the consolidated appeal from the FCC’s July 10, 2015 Declaratory Ruling and Order is whether the term “called party” refers to the intended or actual recipient of the call. The FCC’s Order interpreted the term “called party” to be the “subscriber” or “non-subscriber customary user” of the phone that was called, regardless of whether the caller meant to call someone else. Under this interpretation, businesses that in good faith attempt to contact consumers who have consented to receive such calls face significant liability when those calls reach someone else instead. Continue reading “As Contemplated By the FCC?: TCPA Defendant Seeks Indemnification From Consumer Who Provided Plaintiff’s Mobile Number”