• Updates from the TCPA
  • November 10, 2015 | Authors: Jennifer Monty Rieker; James C. Warmbrodt
  • Law Firms: Weltman, Weinberg & Reis Co., L.P.A. - Cleveland Office ; Weltman, Weinberg & Reis Co., L.P.A. - Pittsburgh Office
  • The cell phone rings during dinner, and the immediate reaction is to glance down to see who is calling. It is an unknown number. The decision must be made whether or not to answer the call. Automated calls created such an issue that in 1991 Congress enacted the Telephone Consumer Protection Act (TCPA). This law addresses telemarketers, as well as all calls made to consumers.

    The TCPA governs the use of auto dialers, predictive dialers and pre-recorded voice calls. It prohibits phone calls using an auto dialer to a consumer's cell phone without his or her prior consent. Additionally, calls to residential lines using an artificial/pre-recorded voice that introduces advertising or constitutes telemarketing requires the called party's prior express written consent.

    Penalties for non-compliance are steep at either actual damages or $500 per violation, and the Court can award treble damages for willful and knowing violations. Additionally, there is no cap on the amount of damages that can be awarded to an individual or to a class, and attorney's fees can be awarded as well.

    July Consent Order

    In July the Federal Communication Commission (FCC) issued a Declaratory Ruling and Order. The Order clarified some of the issues related to calling a consumer's cell phone. One big issue is how to define what an auto-dialer is, as auto-dialed calls to a consumer's cell phone cannot be made without the consumer's consent.

    The Order did not define what an auto-dialer was, but instead stated that machines that have the capacity to auto-dial are included in the prohibition: "the TCPA's use of 'capacity' does not exempt equipment that lacks the 'present ability' to dial randomly or sequentially." Rather, "the capacity of an auto dialer is not limited to its current configuration but also includes its potential functionalities." Instead of identifying what can be an auto-dialer, the FCC indicated it would be determined on a case-by-case basis.1
    A cornerstone of the TCPA is that a business must obtain prior express consent before placing a call to a consumer's wireless phone utilizing an automatic dialing system or an artificial or recorded voice. Prior express consent must be in writing if the message is telemarketing, but consent can be either oral or written if the call is for informational purposes.2 The FCC does not require any specific method by which a business must obtain prior express consent. Each business is left to determine whether to rely upon oral or written consent in complying with the statute's consent requirement, but if any question arises as to whether prior express consent was given by a consumer, the burden is on the business to prove that it obtained prior consent.3

    In its Declaratory Ruling and Order, the FCC reaffirmed its previous rulings that providing one's phone number to a business evidences the consumer's prior express consent to be called at that number, absent instructions to the contrary.4 Additionally, the FCC clarified that porting a telephone number from a wireline service to a wireless service does not revoke prior express consent. However, if prior express consent was not obtained because the number had been a residential line which did not have such requirement, the business would have to obtain said consent after the number was ported to a wireless phone.5

    Considerable debate has surrounded the question of whether consent, once provided, can be revoked by a consumer. The FCC resolved that issue by clarifying that a consumer may revoke consent at any time, through any reasonable means, including orally or in writing, and that a business may not limit the manner in which revocation may occur.6 Consent may be revoked in any manner that clearly expresses a desire not to receive further calls, and businesses may not infringe on that ability by designating an exclusive means to revoke.7 This is dangerous ground.

    Called Party
    The TCPA requires that prior express consent be obtained from the "called party".8 A question as to whether a business obtained consent from the called party arises in situations where a wireless number is reassigned to a new subscriber or where prior express consent was obtained from an individual who is not the actual subscriber. Courts have held businesses liable under the TCPA that have mistakenly failed to obtain consent from the present cell phone subscriber.9

    Groups petitioning the FCC argued that businesses should not be liable under the TCPA for a call intended for a consumer who provided consent but which is received by an unintended recipient. The FCC was not swayed by that argument, instead stating that the caller's intent does not bear on liability.10 The FCC ruled that the "called party" is the subscriber, i.e., the consumer assigned to the telephone number dialed and billed for the call, but also the non-subscriber customary user of a telephone number included in a family or business calling plan.11 The Commission determined that it is reasonable that individuals who might not be the subscriber but due to their relationship with the subscriber can provide prior express consent for the call, and ruled that the consent of the customary user may bind the subscriber.12

    Further expanding the umbrella of consent, the FCC ruled that businesses may be considered to have received prior express consent from individuals who are neither the subscriber nor a customary user. Examples offered by the FCC of persons who could provide binding consent included those whose relationship to the subscriber or customary user is based on nothing more than physical proximity, such as a passenger in the subscriber's car, or a houseguest of the customary user.13

    Petitioners urged the FCC to allow businesses a means of determining that numbers have been reassigned, and thus avoid liability under the TCPA. In addressing these requests, the FCC ruled that businesses making calls without knowledge of reassignment and with a reasonable basis to believe that they have valid consent may make I after reassignment to gain actual or constructive knowledge of the reassignment and must cease future calls to the new subscriber, otherwise the businesses would be liable for any calls thereafter.14 This single-call exception to strict liability makes no allowance for the call not being answered. The FCC declined requests that businesses be given a set period of time, such as one year, to confirm that a number had been reassigned. Instead, the FCC has taken the position that when the new subscriber to a reassigned number has not consented to the calls to that number, the caller may reasonably be considered to have constructive knowledge - if not actual knowledge - of the revocation of consent provided by the original subscriber to the number when the caller makes the first call without reaching that original subscriber.15 The FCC reasoned that the availability in the marketplace of database tools to identify reassigned numbers, the implementation of other safeguards and best practices to avoid calling reassigned numbers, along with one additional post-reassignment call, together make compliance reasonable.16

    Calls to consumers using a telephone dialing system can be a legal landmine. If it looks like an autodialer, has the capacity and ability to be an autodialer, regardless if the equipment is being used as an autodialer, it is still an autodialer under the law. Care should be taken to review files for consumer's consent and to develop appropriate call policies for updating records regarding consent and revocation of consent.

    1 Federal Communications Commission, Declaratory Ruling and Order, FCC 15-72, July 10, 2015, ¶¶ 15-17.

    2 Id., ¶ 9.

    3 Id., ¶¶ 49, 58.

    4 Id., ¶ 76.

    5 Id., ¶ 54.

    6 Id., ¶¶ 47, 55, 64.

    7 Id., ¶¶ 63, 70.

    8 47 U.S.C. § 227(b)(1)(A)(iii).

    9 See, e.g., Soppet v. Enhanced Recovery Co., LLC, 679 F. 3d 637, 643 (2012, CA7 IL); Osorio v. State Farm Bank, FSB, 746 F.3d 1242, 1252 (2014, CA11 FL).

    10 FCC 15-72, ¶ ¶ ¶ 72, 78-80.

    11 Id., ¶ 73.

    12 Id., ¶¶ 75, 78.

    13 Id., ¶ 76.

    14 Id., ¶¶ 72, 85.

    15 Id., ¶ 91.

    16 Id., ¶¶ 72, 83.