FCC’s TCPA Order Offers Little Clarity or Relief for Businesses

In potentially its most significant action under the Telephone Consumer Protection Act (TCPA) since 2003, the Federal Communications Commission released its previously-adopted Declaratory Ruling and Order on July 10th in which it resolved 19 petitions seeking declaratory rulings.

As we foreshadowed upon the Order’s adoption, it does little to provide clarity or relief for the organizations that had petitioned the FCC seeking relief from the onslaught of TCPA litigation. Instead, the FCC’s Order delivers on Chairman Wheeler’s promise to crack down on interpretive loopholes, heightens liability, and strengthen consumer protections against prerecorded calls and autodialed calls and text messages to cell phones.

Among the key rulings, the Order:

• Adopted an expansive definition of “autodialer” to include any equipment that has the potential or “more than theoretical” capacity to store or produce numbers to be called, even if the calling equipment does not presently have that capability;
• Established that the “called party” where consent is required is the person who is the subscriber of record and pays for the service for the number to which the call is placed at the time the call is received, or a “customary user” of that number;
• Provided that a caller can be subject to liability for calling a reassigned telephone number, subject to a limited one-call exemption when the caller does not have actual or constructive knowledge that the telephone number has been reassigned;
• Provided no relief from the TCPA’s strict liability for calling incorrect or misdialed telephone numbers;
• Held that consumers may revoke their prior express consent at any time and “through any reasonable means;”
• Clarified that callers may send a single “on demand” text messages immediately in response to a consumer request;
• Allowed certain free-to-consumer financial- and healthcare-related messages to be sent without prior express consent, subject to certain conditions and limitations;
• Confirmed that autodialed text messages, including Internet-to-phone text messages, require prior express consent and are subject to the TCPA; and
• Clarified that nothing in the Communications Act or FCC rules/orders – including carriers’ call-completion obligations – bars them from deploying call-blocking technology, via an informed opt-in process triggered by consumers.

Please read our full advisory here for additional details and further analysis of the FCC’s Order.