FCC Releases June TCPA Declaratory Ruling
The FCC released its declaratory ruling clarifying its interpretation of the Telephone Consumers Protection Act, approved over a dissent by Commissioner Ajit Pai and partial dissent by Commissioner Mike O’Rielly at the June 18 FCC meeting (see 1506180046). Pai in particular complained that the order will mean more class-action lawsuits under the TCPA. “While the Commission’s past interpretations have addressed nuanced aspects of the TCPA rules, changes in how consumers use their phones, how technology can access consumers, and the way consumers and businesses wish to make calls mean that we are presented with new issues regarding application and interpretation of the TCPA,” the ruling said. “Through their complaints and comments, consumers have expressed their frustration with unwanted voice calls and texts and have asked the Commission to preserve their privacy rights under the TCPA.”
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The ruling notes that Congress has raised numerous complaints about robocalls. On the issue of what constitutes an autodialer for the purposes of the law, the FCC rejected most of industry’s requests for an interpretation companies said would curb TCPA abuse. “In light of our precedent and determination that Congress intended a broad definition of autodialer, we reject arguments that: the TCPA’s language on its face does not support the claim that the TCPA was meant to apply to devices that need to be configured to store numbers or call sequentially; a narrow reading of the TCPA is necessary to eliminate a lack of clarity regarding what constitutes an autodialer; and the term ‘capacity’ implies present ability rather than future possibility.”
Industry lawyers warned prior to the vote that the declaratory ruling is likely to be challenged in court (see 1506160056). Lawyers also said the rules are so broad that under the FCC interpretation even IoT devices, such as connected refrigerators, could be considered autodialers under the order's language.
The declaratory ruling addressed 19 petitions from parties including the American Association of Healthcare Administrative Management, the American Bankers Association, the Consumer Bankers Association, the Direct Marketing Association, Glide Talk, Global Tel*Link, the Professional Association for Customer Engagement, the Retail Industry Leaders Association, Revolution Messaging, Rubio’s Restaurant, Santander Consumer USA, Stage Stores, TextMe, United HealthCare Services, YouMail and 3G Collect. The FCC said it specifically declined to address a petition by credit and collections professional association ACA International asking the commission to “initiate a rulemaking to address significant issues related to the application of the [TCPA].”
The text addresses Pai’s complaint that the rules prohibit actions not just of bad actors attempting to perpetrate frauds, but also of “legitimate businesses” employing calling practices that consumers find objectionable. “The TCPA makes it unlawful for any business -- ‘legitimate’ or not -- to make robocalls that do not comply with the provisions of the statute,” the FCC said. "Contrary to the suggestion of a dissenting statement, the narrow exemption we here adopt is limited to the factual and legal context that is unique to inmate calls, and our reasoning and interpretation does not extend to other situations in which a caller might seek to establish a billing relationship in allegedly similar circumstances. Moreover, our decision here does not create a loophole for telemarketers, but authorizes an exemption for a specific type of call and sets clear conditions on calls made pursuant to that exemption."
The telecom industry “should make [robocall] blocking options available right away,” Sen. Richard Blumenthal, D-Conn., said in a statement Monday. He joined FCC Commissioner Jessica Rosenworcel for a news conference on the topic in Connecticut. “The companies' continuing failure to provide immediate easy access to blocking technology makes them an enabler of anti-consumer abuses. A crackdown on robocalls is within ready reach, if only the telephone companies enable consumers to take control,” he said, applauding recent FCC action on the matter. CTIA and USTelecom issued statements following the news conference. "We continue to work with industry forums to develop better tools,” said USTelecom Senior Vice President Jon Banks. “However, there is no simple technological solution to blocking only illegal robocalls. We encourage all stakeholders to work together to educate and empower consumers, including on ways to file complaints so authorities can take action against such harassment. Strong enforcement efforts are essential for putting illegal robocallers out of business.”
CTIA echoed this concern. “Instead of creating a ‘one-size-fits-all’ approach that would not slow bad actors down, it’s vital that communications providers have the flexibility to create new technologies and options to help consumers stop unwanted communications,” said CTIA Executive Vice President Brad Gillen. “It’s also important that consumers control who they want to hear from since what could be viewed as a nuisance call by one person would be a welcomed communication by another. That’s why CTIA and its members -- individually and collectively -- developed a variety of tools, many for free, so that consumers can stop these robocalls and unwanted communications from ‘blacklisting’ phone numbers to downloading apps.”