Federal Communications Commission (FCC) Chairman Tom Wheeler has issued a fact sheet describing his proposed declaratory rulings on various issues involving the FCC’s interpretation of the Telephone Consumer Protection Act (TCPA). 

The fact sheet states that the proposals address two dozen pending petitions filed with the FCC seeking clarity on “how the Commission enforces the [TCPA].” It also indicates that the proposed rulings are scheduled to be voted on as a single omnibus item by the full FCC at the June Open Commission Meeting scheduled for June 18, 2015, and if approved, would be adjudications that are effective immediately upon release.

Chairman Wheeler’s proposed rulings, as described in the fact sheet, include the following:

  • Revocation of consent. The TCPA is silent on whether consent to robocalls or robotexts to wireless or landline home service can be revoked. A proposed ruling would give consumers the right to revoke consent “in any reasonable way at any time.”
  • “Do Not Disturb” Technology. Carriers would be permitted to offer consumers robocall-blocking technologies for blocking robocalls to wireless and landline home service.
  • Reassigned Numbers. Robocalls to reassigned telephone numbers have generated a high volume of TCPA litigation regarding the caller’s ability to rely on consent to such calls given by the previous assignee. The fact sheet suggests the proposed ruling would provide a safe harbor from TCPA liability only for the first call made to a reassigned wireless or landline number.
  • Definition of “Autodialer.” The TCPA defines an “autodialer” as equipment that “has the capacity” to dial random or sequential numbers.  This definition has created controversy as to whether “capacity” refers to equipment’s current capacity or its potential capacity. Chairman Wheeler’s blog post states that a proposed ruling would clarify that the definition of “autodialer” includes “any technology with the potential to dial random or sequential numbers.”
  • Exceptions to Consent Requirement. The FCC has received requests to exempt certain types of calls from the TCPA rule requiring prior express consent for non-emergency calls to mobile phones. A proposed ruling would create “very limited and specific exceptions,” such as for bank fraud alerts or reminders to refill medication. It would also specifically identify types of calls that would not be covered by the exceptions, such as “marketing or debt collection.” In addition, the ruling would allow consumers to opt out from the exceptions.

Ballard Spahr’s TCPA Task Force assists clients in navigating the complex and challenging issues that arise under the TCPA. The task force, which comprises regulatory attorneys and litigators, provides counsel on TCPA compliance and avoiding TCPA liability, including reviewing policies and practices and helping to design mobile text message and prerecorded and autodialed call campaigns. It also assists clients in handling scrutiny from regulators, including preparing for examinations, responding to investigations, and defending against enforcement actions. Task force members also defend clients against TCPA class or individual actions.

Ballard Spahr's Consumer Financial Services Group is nationally recognized for its guidance in structuring and documenting new consumer financial services products, its experience with the full range of federal and state consumer credit laws, and its skill in litigation defense and avoidance (including pioneering work in pre-dispute arbitration programs).

For more information, please contact Consumer Financial Services Group Practice Leader Alan S. Kaplinsky at 215.864.8544 or kaplinsky@ballardspahr.com, John L. Culhane, Jr., at 215.864.8535 or culhane@ballardspahr.com, Mark J. Furletti at 215.864.8138 or furlettim@ballardspahr.com, Daniel JT McKenna at 215.864.8321 or mckennad@ballardspahr.com, Scott M. Pearson at 424.204.4323 or pearsons@ballardspahr.com, Martin C. Bryce, Jr. at 215.864.8238 or bryce@ballardspahr.com, or Joel E. Tasca at 215.864.8188 or tasca@ballardspahr.com.


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