Telemarketing’s Untold Perils
Under the Telephone Consumer Protection Act (TCPA), telemarketers must have prior express written consent before using automated telephone equipment to call or text a person on his or her mobile phone. But what does that mean?
In an omnibus ruling issued last year, the FCC responded to more than 20 petitions seeking clarification or other action, but its ruling left more questions than it answered. Several parties have filed a petition for review of the FCC’s ruling with the United States District Court for the District of Columbia.
What Is an ‘Auto Dialer’?
The FCC previously defined an auto-dialer as including any equipment with the capacity to dial random and sequential numbers, even if the equipment does not have the present ability to do so. The FCC was asked to clarify what type of “capacity” was required, but it declined to do so.
The commission noted that a handset with a redial button was not an auto-dialer, and that the theoretical possibility of extensive modifications would not convert a rotary telephone into an auto-dialer. But the commission would not definitively state that smartphones are not auto-dialers, nor did the Commission provide any concrete definition of “capacity.” As a result, the contours of that definition continue to be litigated.
Whose Call Is It?
The TCPA restricts those who initiate calls. The FCC omnibus ruling expanded the definition of “initiate” to include not only those who take steps to physically place the call, but also third parties so involved in the placing of the call that they are deemed to have initiated it.
Looking at the totality of the circumstances, the FCC ruled that some mobile applications do not initiate calls, while others do. The absence of a bright-line rule leaves many gray areas.
Last month, the FCC looked at the totality of the circumstances surrounding text message broadcasters (who are hired to send bulk marketing texts on behalf of other businesses) to rule that they do initiate calls under the TCPA, even though fax message broadcasters (who are hired by others to send bulk faxes) do not.
How Will You Know if Someone Revokes Consent?
The FCC ruled that the recipient of a call may revoke consent at any time, by any reasonable means, and the telemarketer may not limit the manner in which revocation can occur. This presents practical and logistical hurdles that the commission refused to address upfront.
Rather, the commission suggested that if there were a route for revoking consent for which telemarketers could not implement a mechanism for recording and effectuating the consumer’s revocation, then the consumer’s chosen route might not be deemed reasonable under the totality of the circumstances. This provides little guidance to companies seeking to comply with the new rule.
From Whom Do You Need Consent?
Mobile telephone numbers are reassigned. Those living together may share mobile telephones. The FCC ruled that consent is required from the current subscriber to the mobile number, even if the caller obtained proper consent from the prior holder of the number and even if the caller did not know that the number had been reassigned. The FCC also ruled that consent is required from all “customary users” of the mobile number.
In response to concerns that these requirements presented a trap for the unwary, the FCC ruled that the first call to a reassigned number was not actionable under the TCPA.
The FCC assumed that the conversation with the called party or his/her outgoing voicemail would inform the caller that the number had been reassigned. This assumption ignores text messages, which culminate in neither a live conversation nor a voicemail and factory installed outgoing voicemail messages, and affords no relief to those whose calls are picked up by other customary users of the phone.
Can Consent Become Stale?
Yes. The FCC ruled that previously obtained consents that do not meet the current definition of prior express written consent are not valid.
Is There Any Good News?
The FCC granted a petition filed by the Retail Industry Leaders Association and held that the following does not violate the TCPA: 1) a one-time text message, 2) sent immediately in response to the consumer’s request (in response to a call to action or other on-demand marketing), 3) that contains only the information requested by the consumer and no other advertising or marketing.
The FCC introduced its omnibus ruling by noting that the number of TCPA class actions has been rising. Unsurprisingly, the commission’s open-ended ruling has not stemmed the tide of litigation.
Two Supreme Court cases this year were poised to potentially curb TCPA class actions. In Campbell v. Ewald, the court was asked to rule on whether an offer of judgment could moot a class action. The court held that the class action in that case was not mooted on the facts presented. Courts across the country are now being asked the same question under slightly different fact patterns. Those cases will need to percolate further before chilling effects, if any, emerge.
In Spokeo v. Robins, the court was asked to rule on whether mobile phone users who do not experience any unwanted charges or other tangible harm may nonetheless bring a TCPA lawsuit in federal court. A ruling has not yet issued and the recent passing of Justice Antonin Scalia means a split decision could result. Accordingly, TCPA litigation is likely to continue.
If there is a silver lining, it is that litigation may flesh out, through court opinions, some of the questions left unanswered in the FCC’s ruling. Monitoring those opinions can help companies develop a roadmap for ensuring TCPA compliance in the future.