FCC Chairman Tom Wheeler released a fact sheet and issued a blog post this week announcing that he had circulated a proposed order that would rule on the numerous petitions that companies have filed with the FCC seeking clarity on the TCPA rules. According to the Chairman, his proposal reflected in the draft order would “close loopholes and strengthen consumer protections already on the books.” The FCC is expected to vote on the Chairman’s proposal at its monthly meeting currently scheduled for June 18, 2015.
Although details have not been made public, the statements from Chairman Wheeler provide some insight as to what he has proposed:
- The proposal would make plain that consumers may revoke their consent to receive “robocalls” and “robotexts” without the need to fill out any forms. To quote the Chairman: “Any reasonable way of saying ‘no’ is allowed.”
- The proposal would clarify that telecommunications carriers can lawfully offer “robocall-blocking” technologies that consumers can elect to use.
- The proposal would provide some clarification as to the definition of an automatic telephone dialing system (ATDS) under the TCPA. The Chairman’s blog post indicates that his proposal would “clarify that definition of ‘autodialers’ to include any technology with the potential to dial random or sequential numbers.” And the Chairman warned that his proposal “would ensure robocallers cannot skirt consumer consent requirements through changes in calling technology design or by calling from a list of numbers.” It remains to be seen how such a clarification would be squared with the statutory use of the term “capacity” in the definition of ATDS and whether the need for human intervention in making the calls or sending the text messages will remain as an element of the definition of ATDS.
- The proposal would close what the Chairman calls the “reassigned number loophole.” This refers to situations where a customer consents to receiving telemarketing calls and text messages on his or her wireless number, but the telephone number is subsequently reassigned to a person who has not consented. But the Chairman’s statements also open the door to a potential safe harbor: the ruling would clarify that companies have to stop calling a number “after one call,” thus suggesting that companies may not be liable for making a call to what was (unbeknownst to them) a reassigned number. It remains to be seen how such a safe harbor would work in the context of text messages to wireless number that the sender does not know has been reassigned (and to which a recipient may nor may not respond) and whether a safe harbor might apply retroactively.
- The proposal would allow for a limited and specific exception for urgent contact circumstances, such as calls or texts to alert consumers to possible fraud on their bank account or remind them of important medication refills.
- The proposal would reinforce the FCC’s role in enforcing the rules through its Enforcement Bureau.
The fact sheet makes plain that the Chairman’s proposal, if adopted, will be implemented by way of issuing declaratory rulings in a single, omnibus order that adjudicates the pending petitions, which would be effective immediately upon release.
While the Chairman’s statements provide some insight as to his desired policy direction, the specifics of what will be permissible or conditionally permissible can only be guessed until the order is adopted and released and can then be reviewed in detail. We likely will know more after the FCC meets on June 18, but full details may not be available until the FCC releases its order, which may not necessarily happen on June 18.
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