The Telephone Consumer Protection Act of 1991 (TCPA) restricts many types of calls to residential and wireless telephone numbers if they are made without the prior express consent of the called party or a statutory exemption applies, but the statute authorizes the FCC to exempt certain calls from these restrictions. In 2020, the FCC in its TCPA Exemptions Order adopted measures to implement the 2019 Telephone Robocall Abuse Criminal Enforcement and Deterrence Act (TRACED Act). The TRACED Act required that the FCC ensure that any exemption to TCPA prior express consent that the FCC grants under section 227(b)(2)(B) or (C) of the Communications Act, allowing callers to make artificial voice, prerecorded voice, or autodialed calls without prior consent, include certain conditions. Specifically section 8(a) of the TRACED Act requires that any exemption contain requirements with respect to: “(i) the classes of parties that may make such calls; (ii) the classes of parties that may be called; and (iii) the number of such calls that a calling party may make to a particular called party.” The FCC in 2020 determined it would limit the number of exempted calls that can be made to residential phone lines; require that callers making exempt calls allow consumers to opt out of receiving future exempt calls; and codify existing FCC exemptions for certain types of calls to wireless numbers, including calls by package delivery companies, financial institutions, prison inmate calling services, and healthcare providers.
Author Archives: Laura H. Phillips
FCC Releases Declaratory Ruling Addressing the TCPA Compliance Status of Ringless Voicemails
On November 21, 2022, the Federal Communications Commission (FCC) released a Declaratory Ruling and Order (Declaratory Ruling), in which it determined that “ringless voicemail” to wireless phones requires prior consumer consent to transmit because it is a “call” made using an artificial or prerecorded voice and thus is covered under section 227(b)(1)(A)(iii) of the 1991 Telephone Consumer Protection Act (TCPA). The Declaratory Ruling was issued even though the petitioner, All About the Message, LLC (AATM) had requested withdrawal of its 2017 Petition for Declaratory Ruling seeking to have the FCC declare that ringless voicemail, based on the technology and the lack of direct charge to wireless consumers, is not subject to the TCPA and the agency’s implementing rules. Addressing AATM’s withdrawal request, the FCC stated that it believed a ruling was necessary to resolve a controversy and remove uncertainty about the status of ringless voicemail under the TCPA.
Codified in section 227 of the Communications Act of 1934, the TCPA addresses certain practices considered to be an invasion of consumer privacy or, in some instances, a risk to public safety. Section 227(b)(1)(A)(iii) prohibits making any non-emergency call using an automatic telephone dialing system (autodialer) or an artificial or prerecorded voice to a wireless telephone number without the prior express consent of the called party. AATM sought an FCC ruling that delivery of a voicemail message directly to a consumer’s cell phone voicemail is not covered by the TCPA. AATM relied on several arguments, but primarily claimed that its ringless voicemail message was not a “call” because its proprietary software creates a landline-to-landline session directly to the telephone company’s voicemail server without charge to the subscriber and is not shown as a call on any consumer bill.
Proposed Federal TCPA Legislation Offers a New and Broad ATDS Definition
On July 12, 2022, Representatives Raja Krishnamoorthi, D-Ill., and Katie Porter, D-Calif. introduced H.R. 8334 in the U.S. House of Representatives, which was referred to the Committee on Energy and Commerce. The bill would amend the Telephone Consumer Protection Act (the “TCPA”), 47 U.S.C. § 227, to, among other things, “prohibit the use of automated telephone equipment to send unsolicited text messages.”
The TCPA presently defines “automatic telephone dialing system” (or “ATDS”) as equipment that has the capacity “to store or produce telephone numbers to be called, using a random or sequential number generator . . . to dial such numbers.” The law generally prohibits any person from making nonconsensual telemarketing or other types of telephone calls to a cell phone number using an ATDS.
FCC Acts to Curb Foreign-Originated Illegal Robocalls, Imposes Several New Requirements on Gateway Providers
Recently, on May 20, 2022, the Federal Communications Commission (“FCC”) issued a Report and Order (“Order”), as well as a Further Notice of Proposed Rulemaking (all available here), with a plain objective: to “take further steps to stem the tide of foreign-originated illegal robocalls and seek comment on additional ways to address all such calls.” Order ¶ 1. As stated by the FCC, “reducing illegal robocalls that originate abroad is one of the most vexing challenges we face in tackling the problem of illegal robocalls.” Id. The Order was adopted by a unanimous, 4-0 vote by the FCC after it had received comments over the last nine months on various topics, including whether so-called “gateway providers” should be required to authenticate caller identification information and implement other efforts to reduce the number of illegal prerecorded and/or artificial voice “robocalls” originating overseas.
A “gateway provider” is a U.S.-based provider that acts as an intermediary for an international call by receiving a call directly from a foreign provider before transmitting that call downstream to other U.S.-based providers for termination. Order ¶ 25. This definition is not static but rather one that applies on a call-by-call basis, i.e., a provider is a gateway provider—and subject to the FCC’s new Order—only for those calls in which it acts as a gateway provider. Id. ¶ 28. Per the FCC, commenters “overwhelmingly” supported the imposition of additional requirements on gateway providers in order to “stop the flood of foreign-originated illegal calls.” Id. ¶ 21.
FCC Seeks Comment on HHS/CMS Request for Certainty About Communications Critical to Federal and State Health Insurance Programs Post-Pandemic
Reacting quickly to a joint request by the U.S. Department of Health and Human Services (HHS) and the Centers for Medicare & Medicaid Services (CMS) (collectively, the Health Agencies) last Thursday, the FCC released a Public Notice on May 3, 2022, inviting comments about how it should clarify “that certain automated calls and text messages or prerecorded voice calls relating to enrollment in state Medicaid and other governmental health coverage programs are permissible under the Telephone Consumer Protection Act (TCPA).” Recognizing the time-sensitive nature of the Health Agencies’ request, the FCC established a short cycle for public comment – comments are due in 14 days on May 17, 2022, and any reply comments are due on May 24, 2022.
Spring Roster of FCC Actions: State-Federal Partnerships, Enforcement Actions, and Reassigned Numbers Database Clarifications and Changes
The FCC’s TCPA dockets did not witness many developments from the beginning of 2022 until February. However, beginning in February and into March, Chairwoman Rosenworcel’s office and the Enforcement Bureau were busy negotiating new robocalling partnerships with state regulators and issuing enforcement orders against suspected or apparent violations. Those activities expanded in April by the issuance of new guidance and a new pricing structure for the Reassigned Numbers Database. We cover each of these topics below.
State-Federal Partnership on Investigations
Since Chairwoman Rosenworcel’s confirmation as the FCC Chair in December 2021, she has put on the top of her agenda building a partnership with state regulators – attorneys general and enforcement agencies. During February, March, and April 2022, Chairwoman Rosenworcel signed memoranda of understanding (MOUs) designed to allow greater cooperation and sharing of information and other investigation intelligence with regard to illegal robocalls and telephone scams. These MOUs also reflect the intention of close collaboration to enforce consumer protection laws concerning robocalls. The FCC currently has MOUs in place with twenty-eight (28) states and more could be in the offing.
“The Number You Have Dialed Has Changed Subscriber” or the Advent of the Reassigned Numbers Database
After years of discussion and planning, the FCC’s Reassigned Numbers Database opened for commercial use on November 1, 2021. Now business callers can register for a paid subscription with the FCC’s designated Administrator, SomosGov, to query both the connection and permanent disconnection status of over 152 million U.S. telephone numbers through this web-based platform. This information can let subscribing callers know whether customers who had previously given consent to receive calls and texts from the business have disconnected their phone numbers and whether these phone numbers have since been reassigned to others. By reducing the likelihood of unwittingly making calls to unintended recipients, the Reassigned Numbers Database is expected to prevent millions of “unwanted calls intended for someone who previously held their phone number,” which should provide callers some protection against TCPA allegations of calling without adequate prior consent.
Initially adopted in December 2018, the Reassigned Numbers Database proposal and framework underwent many rounds of public comments on various aspects of its implementation, had nearly three years of preparation, and had a three-month beta test. Since April 2021, nonexempt communications service providers have been reporting permanent disconnections to the Reassigned Numbers Database each month, accumulating data about over 152 million U.S. telephone numbers (including toll-free numbers). Smaller communications service providers began reporting their records into the Reassigned Numbers Database on October 15, 2021.
New Petition Renewing Request for FCC Clarification of TCPA Status of “Ringless Voicemail” for “Get Out the Vote” Campaigns
The FCC recently announced a public comment period for a new Petition for Declaratory Ruling that seeks to have the FCC “clarify that delivery of a voice message directly to a voicemail box through ringless voicemail (RVM) technology does not constitute a ‘call’” subject to TCPA prohibitions. The Petition was filed by the U.S. Senate campaign for David Perdue – Perdue for Senate, Inc. (Perdue) stemming from litigation in Georgia related to primary election delivery of RVMs to voters. Interested parties have until October 4, 2021, to submit comments and until October 19, 2021, to submit reply comments.