Technology is constantly changing. And so too is the way businesses use it to reach us and sell us their services. Before it used to be an annoying phone call to our land line. Now that virtually everyone has a cell phone, consumers are receiving phone call and texts on their mobile too. These days, the callers are not just telemarketers and debt collectors, but more “reputable” companies such as Twitter or Best Buy.
The Telephone Consumer Protection Act (TCPA) prohibits certain fax and automated-dialing practices and authorizes recovery from $500 to $1,500 per call, text message, or fax sent in violation of the Act. Businesses and industries, faced with a flurry of class action suits and concerned about their liability under the TCPA, have filed numerous petitions with the FCC requesting clarity on some of the TCPA provisions.
In response to the barrage of petitions, and presumably contrary the petitioners’ intent, the FCC released a ruling in June clarifying certain provisions of the TCPA. In effect, the FCC expanded the scope and penalties of the rules. Indeed, the FCC’s ruling not only gives more control to consumers over the solicitations they receive, but it also increases the liability of businesses for violations of the TCPA. The FCC made it clear in this ruling that it is a business’s responsibility to ensure it had consent from the consumer. Some of the new rules state:
- Reassigned Numbers: Callers must stop calling reassigned wireless and wired telephone numbers after a single call.
- Definition of Automatic Telephone Dialing System (ATDS): If a phone can be programmed to dial numbers generated or stored by a random or sequential number generator, it will be considered an ATDS. This includes cell phones, tablets etc.
- Revocation of Consent: Consumers now have the right to revoke their consent to receive calls and text messages sent from auto-dialers in “any reasonable way at any time” and companies cannot limit these means.
- Text Messages Subject to Same Restrictions as Voice Calls: Text messages are now considered phone calls.
- Call Blocking Technology Allowed: Telephone providers may offer robocall-blocking technologies to consumers. Providers had previously thought the FCC prohibited this.
- Consumer Remedies: Consumers will still have a private right of action for violations of the TCPA along with statutory penalties.
In short, the FCC’s June ruling favors consumers and gives them more control over these unwanted nuisances. And businesses must meet these clarified TCPA requirements before texting or calling with any solicitations—or else they face hefty fines.
1 SeeNunes v. Twitter, Inc., No. 14-02843 (N.D. Cal.).
2 SeeChesbro v. Best Buy Co., No. 2:10-cv-00774 (W.D. Wash.).