The FCC Broadens TCPA's Reach: More Lawsuits Ahead!

15 July 2015 Consumer Class Defense Counsel Blog

The Federal Communications Commission (“FCC”) issued its declaratory ruling and order addressing over 20 pending petitions on Friday, July 10, 2015. This new ruling effectively requires companies to make a fresh evaluation of their telephone technology and, in most cases, change existing policies and practices. Some of the rulings of general applicability are described in this post.

Autodialers. The FCC confirmed its previous statements that dialing equipment that has the capacity to store, produce and dial random or sequential numbers, even if not presently used for that purpose, meets the definition of an “automatic telephone dialing system” (“autodialer”). It concluded that Congress intended a broad definition of autodialer, and stated,  “[t]he capacity of an autodialer is not limited to its current configuration but also includes its potential functionalities.”

The FCC focused on whether the equipment could dial numbers without human intervention and dial thousands of numbers in a short period of time as critical inquiries. However, it rejected establishing a “human intervention” test to determine whether equipment is an autodialer. The determining factor continues to be the capacity of the machine, rather than how it is being used at a given time.

The FCC acknowledged that there are outer limits to the “capacity” of equipment to be an autodialer, but gave little help in setting those limits. It stated that the term autodialer does not “extend to every piece of malleable and modifiable dialing equipment that conceivably could be considered to have some capacity, however small, to store and dial telephone numbers.” As an example, the FCC stated that “it might be theoretically possible to modify a rotary-dial phone to such an extreme that it would satisfy the definition of “autodialer,” but such a possibility is too attenuated for us to find that a rotary-dial phone has the requisite ‘capacity’ and is therefore an autodialer.”

Many have argued that the FCC’s broad definition of autodialer includes smartphones. The FCC did not disagree. Instead, it stated, “Even though the Commission has interpreted ‘capacity’ broadly since well before consumer’s widespread use of smartphones, there is no evidence in the record that individual consumers have been sued based on typical use of smartphone technology.” The FCC promised to continue to monitor consumer complaints and feedback, as well as private litigation, regarding typical uses of smartphones and to provide additional clarification if necessary.

The take-away from this latest ruling is while human intervention can be important to an autodialer determination, it is not the dispositive test. The focus will be on whether that machinery can be modified in a way that allows it to store and dial numbers in a random or sequential fashion. Those who are unsure of whether their equipment can be so modified should review their telephone system’s owner’s manual, consult their vendor, technology department and counsel, and make appropriate modification to their policies and practices.

Consent. Revocation of consent has been a significant question in the courts since the explosion of TCPA litigation. The new FCC ruling prohibit agreements which limit revocation rights. Consumers now have a right to revoke consent in any reasonable manner. By way of example, consumers may revoke, a) by way of a consumer-initiated call, b) directly in response to a call initiated or made by a caller, or c) at an in-store bill payment location.

The FCC rebuffed claims that allowing an unfettered right to revoke will put companies in an impossible proof position in court. It denies that it has created a “he said, she said” situation and trumpets the business records exception as the mechanism for companies to prove consent. It said, “The well-established evidentiary value of business records means that callers have reasonable ways to carry their burden of proving consent. We expect that responsible callers, cognizant of their duty to ensure that they have prior express consent under the TCPA and their burden to prove that they have such consent, will maintain proper business records tracking consent.” The problem with the FCC’s analysis is it does not recognize the realities of real world litigation. The consumer will claim she revoked consent, and the business record will be silent on that issue. The consumer will argue that the employee failed to note the revocation, and that will be the end of the debate.

Reassigned Wireless Telephone Numbers. The FCC clarified that consent must come not from the intended recipient of the call, but from the current subscriber or user of the phone. Callers who make calls without knowledge of a reassignment and with a reasonable basis to believe that they have valid consent can make one call after the reassignment. This single call is the caller’s opportunity to gain or obtain constructive knowledge of the reassignment and to cease future calls.

The FCC made clear that the new subscriber has no obligation to opt out of such unwanted calls or even to inform the caller that the number has been reassigned. It further said, “We reiterate that the TCPA places no affirmative obligation on a called party to opt out of calls to which he or she never consented; the TCPA places responsibility on the caller alone to assure that he or she has valid consent for each call made using an audodialer, artificial voice, or pre-recorded voice.” A called party can now opportunistically allow misdirected calls to accumulate and later sue under the TCPA.

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