What Businesses Need to Know about the FCC’s TCPA Ruling, Part 1

In the previous post, we discussed the history of the Telephone Consumer Protection Act (TCPA), which was passed in response to ongoing complaints about telemarketing and calls from debt collectors. The TCPA evolved over the years to prohibit calls and text messages to mobile phones without permission. We also warned of the high cost of TCPA violations as penalties have reached tens of millions of dollars in some cases.

In response to requests by a number of organizations for clarification of TCPA rules and requirements, the Federal Communications Commission (FCC) issued a Declaratory Ruling on July 10, 2015. The ruling continues the crackdown on unwanted robocalls, but can also affect organizations that are trying to connect with customers or prospects with no sales pitch or hidden agenda. Here are some highlights of the FCC’s recent TCPA ruling.

“Autodialer” Now Has a Broadened Definition

The use of an automatic telephone dialing system, or autodialer, to place calls or send texts must meet TCPA rules, which include disclosure and consent requirements. The definition of an autodialer has been expanded to include any equipment or software that has the capacity to dial randomly or sequentially. Even if a device or software isn’t currently being used for calls or texts, it is considered an autodialer if it has the capability to place calls and send texts.

The ruling offered little specificity, but did state that speed-dial functionality does not make a phone an autodialer. However, predictive dialers and Internet-to-phone text messaging capabilities do meet the definition of an autodialer. Determinations about whether a device or software is considered an autodialer will be made on a case-by-case basis to assess the level of human intervention required.

Companies need to be aware of this broad and somewhat fuzzy definition of autodialer and realize that the definition applies not to how equipment or software is used, but what it is capable of. There is already concern that the lack of clarity could lead to more lawsuits.

Calling Reassigned or Wrong Numbers Is No Excuse

This is, in essence, a “two strikes and you’re out” policy. Organizations can place one call or send one text to find out if a number has been reassigned or is incorrect. That’s it. The idea is that a company should be able to determine if a number has been changed. Not only that, but the person called isn’t obligated to inform the caller that they have reached the wrong person.

Companies that text or call a reassigned or wrong number more than once risk being held liable for violation of the TCPA. Organizations are encouraged to exhaust all avenues for identifying and eliminating such numbers, but should understand that these efforts don’t remove liability.

The FCC offers the following guidelines for discovering reassigned numbers:

“(1) include an interactive opt-out mechanism in all artificial- or prerecorded-voice calls so that recipients may easily report a reassigned or wrong number; (2) implement procedures for recording wrong number reports received by customer service representatives placing outbound calls; (3) implement processes for allowing customer service agents to record new phone numbers when receiving calls from customers; (4) periodically send an email or mail request to the consumer to update his or her contact information; (5) utilize an autodialer’s and/or a live caller’s ability to recognize “triple-tones” that identify and record disconnected numbers; (6) establish policies for determining whether a number has been reassigned if there has been no response to a “two-way” call after a period of attempting to contact a consumer; and (7) enable customers to update contact information by responding to any text message they receive, which may increase a customer’s likelihood of reporting phone number changes and reduce the likelihood of a caller dialing a reassigned number.”

In the next post, we’ll discuss more of the fallout from the FCC’s recent Declaratory Ruling on the TCPA.