Given the meteoric rise in use and availability of mobile devices in recent years, advocates have long been calling upon the FCC to update definitions and rules within the Telephone Consumer Protection Act (TCPA). Just days ago, the FCC finally delivered on a long-standing commitment to do just that.
The result is good news for consumers and discouraging news for telemarketers, as it tightens restrictions as to just whom and under which circumstances an auto dialer or robocall can be applied. It remains to be seen if the new rules will result in an increase in robocall lawsuits or a decrease. Time will tell.
First, the FCC updated the definition of an auto dialer, which until now has been defined as “equipment which has the capacity to store or produce telephone numbers to be called using a random or sequential number generator and to dial such numbers.” The FCC has now defined and quantified “capacity” to include both present and future capacity - thus a broad definition that extends into the future in limitless fashion.
In an effort to block unwanted robocalling, auto dialing and spam text messaging, service providers will now be allowed to provide so-called “Do Not Disturb” technologies and protocols that would afford the consumer an opportunity to put a halt to unwanted calls and messaging.
Along with the right to revoke consent to receive robocalls and/or texts at any time, any consumer who has recently acquired a reassigned number can no longer receive auto-dialed calls or texts intended for the original owner of that number. This is a big issue, because thousands of numbers are reassigned every year in the US. The FCC, in its updated policy, holds that any consumer who inherits a phone number should not be subjected to unwanted calls or messaging directed toward a previous subscriber.
To that end, the auto dialer has one “get-out-of-jail” card: the gift to the telemarketer of one liability-free call to the reassigned party. Ostensibly, this would be allowed in order to confirm that the number has been reassigned and the parties have changed.
But that’s it. Following the initial liability-free call, the telemarketers will be on the liability hook for any subsequent call or message to the reassigned number. Under the TCPA, a violation will be triggered through contacting the party involved, rather than via the intended recipient.
There are caveats, of course: a consumer can give prior consent to receiving automated calls with regard to reminders for medication refills and alerts pertaining to bank fraud. But telemarketers and debt collectors can’t squeeze under that rule.
And third-party consent is a big one. Any consumer whose name is on another consumer’s contact list or address book should not be viewed as having given permission to accept robocalls just because they’re on the contact list - regardless of whether or not the primary consumer has given his or her permission.
Among other decisions and findings, the FCC ruled that any equipment capable of automating the process of sending a text message to a mobile device is, indeed, an auto dialer and thus requires prior consent, or it will be viewd as a violation of the TCPA.
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Various TCPA lawsuits have been launched over the years as consumers have been fighting back. It is unclear if the FCC updates and clarifications will increase litigation or curb lawsuits. The answer lies with telemarketers and whether or not they are capable of working within the confines of the new framework without stepping over the line. For telemarketers, restrictions have tightened. It will remain to be seen how well they comply.