On the cusp of rush hour Friday evening, the Federal Communications Commission finally released its long-awaited (since June 18) TCPA Omnibus Declaratory Ruling and Order. You can read the full text of the ruling here. We will report further in the coming days as we digest the details.

Per the language of the ruling itself: “To reiterate and simplify the relevant portions of the TCPA, and as a guide to the issues we address below: if a caller uses an autodialer or prerecorded message to make a non-emergency call to a wireless phone, the caller must have obtained the consumer’s prior express consent or face liability for violating the TCPA. Prior express consent for these calls must be in writing if the message is telemarketing, but can be either oral or written if the call is informational.”

Other highlights:

Autodialers

  • The ruling reaffirms the Commissions previous statements, and, while restrictive, isn’t necessarily surprising: “Dialing equipment generally has the capacity to store or produce, and dial random or sequential numbers (and thus meets the TCPA’s definition of ‘autodialer’) even if it is not presently used for that purpose.”
  • Predictive dialers also satisfy the TCPA’s definition of ‘autodialer.’
  • Per the FCC: “Congress intended a broad definition of autodialer.”

Establishing/Revoking Consent

  • Consent can be rescinded by the called/consumer at any time, and via any reasonable means. (“Reasonable” is not defined.) In fact, “ A caller may not limit the manner in which revocation may occur.” (In this document, “caller” can be read as “debt collector” for the most part.)
  • On the bright side: “The Commission recently held that the TCPA does not prohibit a caller from obtaining a consumer’s prior express consent through an intermediary.”
  • “Petitioner Edwards asks the Commission to clarify whether a creditor may make autodialed or prerecorded message calls to a wireless number initially provided to the creditor as associated with wireline service.  Edwards asserts that, where a consumer initially provides a wireline number to a creditor and thereby grants consent to be called at that number regarding the debt, but later ports the wireline number to wireless service, the consent to be called regarding the debt does not apply to the wireless number.”
  • “Porting a telephone number from wireline service to wireless service does not revoke prior express consent.” The Commissioners went on to say, “if the consumer who gave consent to be called and later ported his wireline number to wireless no longer wishes to be called because he may incur charges on his wireless number, it is the consumer’s prerogative and responsibility to revoke the consent.”
  • “We clarify that the TCPA requires the consent not of the intended recipient of a call, but of the current subscriber.”

Also on Friday, ACA International filed a lawsuit against the FCC, citing that the ruling is at odds with the original intent of the law, seeking judicial review of the June 18 order. The FCC had specifically and explicitly declined to grant a petition of rulemaking to the trade association.

 


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