• FCC Rulings Create Greater Legal Exposure For Marketers
  • June 26, 2015 | Authors: Andrew B. Lustigman; Scott A. Shaffer
  • Law Firm: Olshan Frome Wolosky LLP - New York Office
  • The Telephone Consumer Protection Act (“TCPA”) continues to be the bane of marketers who seek to interact with consumers on mobile devices. This is particularly true because plaintiffs’ attorneys heavily exploit the TCPA’s onerous and confusing provisions to file class-action lawsuits. One plaintiffs’ firm has gone so far as to create an App to document allegedly improper communications to mobile devices.

    To help obtain clarity and perhaps some sense of normalcy with respect to the rapidly changing use of technology, numerous parties have filed petitions with the Federal Communications Commission (“FCC”). On June 18, 2015, the FCC issued a press release announcing a package of rulings that addresses twenty-one pending petitions. Unfortunately for marketers, the FCC’s rulings will make compliance with the TCPA even more challenging and exposure to class actions even greater.

    Here are the highlights of the new FCC rulings:

    Call Blocking. Previously, telephone companies claimed that call-blocking technology was inconsistent with FCC call completion regulations. Now, the FCC has clarified that telephone companies are empowered to offer consumers technology (e.g., “do not disturb”) to block pre-recorded voice/ robocalls. It remains to be seen, however, to what extent telephone companies are willing to offer such services.

    Revocation of Consent. The FCC clarified that consumers have the right to revoke their permission to receive robocalls and texts in any reasonable way at any time. This is true even if the consumer had previously given prior express consent.

    Phone Number Reassignment. If a phone number is reassigned to a new user who has not consented to be called, companies must stop calling after one call. Thus, if there was prior consent from the prior holder of the number, that consent precludes liability for the first call. To be clear, the FCC is saying that there is potential liability for any subsequent calls after the first one - even if the consumer advised the caller of the change or made clear that she did not provide consent.

    Text Messages as Calls. The FCC reaffirmed that the same level of consent is required for texts as they are for voice calls to wireless numbers.

    App Contacts. The FCC ruled that a consumer whose name appears in the contacts list of an acquaintance’s phone does not consent to receive texts or calls from third-party apps downloaded by the acquaintance.

    Autodialers. For courts that are struggling to determine whether new technology falls under the 24 year-old definition of an autodialer, the FCC took a strict interpretation of the term, clarifying that an autodialer is any technology that has the capacity to dial random or sequential numbers. Accordingly, TCPA restrictions apply even if the dialer is used to dial a pre-assigned list of numbers. Furthermore, the FCC clarified that equipment used to send Internet-to-phone text messages is also an autodialer.

    Urgent Non-Marketing Calls. The FCC confirmed that calls or texts are allowed - without prior express consent, and so long as the called party is not charged - to alert consumers about possible fraud on their bank accounts, remind them of medication refills, and provide other financial and healthcare related notifications.

    As a result of the FCC’s rulings, marketers who communicate with consumers on mobile devices and smart phones must stay current with these new rulings. Before making communications covered by the TCPA, marketers must be sure that they have the proper and sufficient consent before engaging in any contact. Otherwise, there is the potential for significant financial exposure given the burgeoning plaintiffs' bar in this space.