JUNE 18, 2015 FCC DECLARATORY RULING and Order
On June 18, 2015 the FCC held an open meeting during which they voted to approve a package of declaratory rulings (the “Order”) that address 21 petitions received by the FCC concerning the interpretation and implementation of the Telephone Consumer Protection Act (“TCPA”). The full text of the Order was released on July 10, 2015 and the new rules became effective that day. The Order is 138 pages long and contains some positive, but mostly negative implications for call centers. A summary of key issues follows.
Expanded Definition of an Autodial (“ATDS”)
The FCC rejected the argument that an ATDS should be limited to a system that has the “current” or “present” capacity to dial numbers randomly or sequentially. According to the FCC, an ATDS now includes equipment that has the “potential” capacity to autodial. The FCC did state that an ATDS must have more than mere “theoretical” capacity, for example they stated a rotary phone would not be considered an ATDS even though it could theoretically be altered so significantly as to autodial. The FCC refused to adopt a specific “human intervention” standard for determining whether a system is an ATDS, but they did reiterate that the level of human intervention is a core factor and will be considered on a case by case basis when determining whether a system is an ATDS.
“Called Party” is the Subscriber or Customary User
Unfortunately, the FCC has also rejected the common sense definition of “called party” to mean the “intended recipient.” Rather, “called party” will refer only to the current subscriber or customary user of the phone number.
Calls to Reassigned Numbers Get Only One Free Pass
The FCC determined that when a business has consent to call someone, but they call after the number is reassigned, the business will only be exempt from liability for the first call to the new subscriber. This is troubling because the FCC now expects businesses to determine merely from placing one call (which might not even be answered) whether the number has been reassigned.
Greater Consumer Right to Revoke Consent
The FCC also found that consumers have the right to revoke consent to be called “using any reasonable method.” The FCC stated that consent may be revoked during an inbound or outbound call or even inside a store. No guidance was provided as to what would be an unreasonable method of revoking consent. Additionally, the Order states that callers may not control consumers’ ability to revoke consent by, for example, designating a specific method or medium for them to do so. This poses new challenges for companies who might now be required to record and honor revocations at any customer touch point, including by a sales associate at a retail location.
Phone Carriers are Allowed to Offer Robocall Blocking Technology
Carriers now have the green light to implement technology that would allow consumers to block unwanted robocalls. Responding to a letter from the National Association of Attorneys General, the FCC clarified that nothing in their rules prohibited carriers from blocking robocalls at the request of a subscriber who elects that service. This will be allowed to block robocalls to both consumer and business lines. Carriers are not required to offer such services, but may now safely do so without fear of violating the Wireline Competition Bureau’s prior rule that carriers cannot unilaterally block certain calls in an attempt to save on their own costs and access fees.
Special Exemptions Granted for Certain Financial and Healthcare Alerts
The FCC granted limited exemptions for certain messages from banks and healthcare providers. For example, under specified conditions, banks may now send fraud alerts and time sensitive instructions about pending wire transfers, without consent. Healthcare providers may send appointment reminders and lab results, prescription notifications, etc. The calls must be free to the called party and a variety of content and frequency limitations apply.
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