- TCPA Hazards Abound Following Busy Month for the FCC
- November 30, 2016 | Authors: Thomas M. Byrne; Juan C. Garcia; Phillip E. Stano; Rocco E. Testani; Lewis S. Wiener
- Law Firms: Sutherland Asbill & Brennan LLP - Atlanta Office; Sutherland Asbill & Brennan LLP - Houston Office; Sutherland Asbill & Brennan LLP - Washington Office; Sutherland Asbill & Brennan LLP - Atlanta Office; Sutherland Asbill & Brennan LLP - Washington Office
- On November 16, 2016, the Federal Communications Commission (FCC) issued a final rule regarding the treatment of debt servicing and collection calls made by or on behalf of the federal government under the Telephone Consumer Protection Act (TCPA). The rule, a result of the Bipartisan Budget Act of 2015, provides exceptions to the TCPA’s general requirement that companies may not make autodialed and prerecorded calls without prior express consent from the call recipient. According to the FCC, the rule is intended to “help consumers avoid debt troubles while preserving consumers’ ultimate right to determine what calls they wish to receive.” While this rule applies to autodialed calls, it applies equally to autodialed texts, sometimes referred to as “robotexts,” as confirmed by an FCC Enforcement Advisory released on November 18, 2016.
Although it is a lengthy 28 pages, single-spaced, the rule is narrow in scope.
Who Can Be Called?
- The rule is limited to calls made to individuals who owe debts held in whole or in part by the federal government. Calls cannot be made regarding debts that have been sold in full to third parties.
- Only individuals who are legally responsible for the subject debt may be called (as opposed to other individuals listed on loan applications, for example).
- Calls may be made regarding delinquent debts.
- Calls may also be made on those debts facing imminent risk of delinquency or a change of status of the debt. “Imminent risk” is defined as occurring 30 days prior to a scheduled event “affecting the amount or timing of the payment due.” This includes deferment, forbearance, rehabilitation, and enrollment or reenrollment in repayment programs.
- Consumers may revoke the consent this rule grants to federal debt servicers and their contractors.
- No more than three calls may be made to the same wireless number within a 30-day time period.
- Attempted calls are covered under this rule, regardless of whether they are completed.
- The content of the calls must be exclusively related to the collection or servicing of a debt. Calls that include any form of marketing are prohibited.
- Calls may be made between 8:00 a.m. and 9:00 p.m.
Two aspects of the rule may prove difficult to manage in practice. First, the rule limits calls to three types of numbers: (1) a wireless number provided by the debtor at the time the debt was incurred; (2) a wireless number provided by the debtor after the debt was incurred; and (3) a wireless number the caller obtained from an independent source, “provided that the number actually is the debtor’s telephone number.” Problematically, the rule does not provide guidance on how a caller can verify that a number belongs to an individual debtor without calling the number and speaking to the person who answers.
Second, calls to reassigned wireless numbers are subject to the one-call rule more fully outlined in the FCC’s July 2015 Order. If a call is made to a reassigned number that no longer belongs to a debtor, the caller may only dial the number once without violating the TCPA. Any additional calls are subject to TCPA liability, even if the recipient does not answer the first call or does not tell the caller that the debtor no longer subscribes to the dialed number. Compounding these potential pitfalls is the FCC’s continued refusal to put in place “safe harbor” provisions that would exempt from liability callers that make good faith efforts to conform to the FCC’s guidance.
The rule will go into effect after the Office of Management and Budget approves the rule, and it is published in the federal register.
Separately, on November 18, 2016, the FCC’s Enforcement Bureau issued an Advisory confirming that prohibitions that apply to autodialed calls apply equally to autodialed texts. Specifically, neither autodialed calls nor autodialed texts may be sent without the express written permission of the recipient unless the message is made for an emergency purpose or specific exemptions apply, such as those outlined above. The Advisory was issued for the purpose of “promot[ing] understanding of the clear limits on the use of autodialed text messages, known as ‘robotexts.’”