Tom Wheeler, the 31st Chairman of the Federal Communications Commission (FCC) appointed by President Barack Obama in 2013, is stepping down once President-Elect, Donald Trump, takes office on January 20, 2017.
Under Chairman Wheeler, the FCC enacted its most sweeping Telephone Consumer Protection Act (TCPA) revisions with its July 2015, Omnibus Declaratory Ruling. In a contentious 3-2 vote, the Democratic vote passed the pro-consumer order significantly restricting the industry from using Automatic Telephone Dialing Systems (ATDS) or any dialer that has the “capacity” to automatically dial, even if that dialing capability is turned off or just a mere possibility with the use of additional software.
Once Wheeler steps down, the balance of power at the FCC will favor Republicans by a 3 to 1 margin if President-Elect Trump nominates a Republican to chair Wheeler’s vacant seat in 2017.
Before working at the FCC Wheeler, a huge proponent of net neutrality, served as both a venture capitalist and lobbyist for the cable and wireless industry, which the FCC regulates.
Under Wheeler’s chairmanship, the FCC introduced sweeping reforms and regulations, including implementing net neutrality and expanding upon the TCPA signed into law by President George H.W. Bush in 1991.
As industry knows, the original TCPA legislation restricted the way telemarketers and other businesses that use the telephone channel can contact their customers and prospects. It limited the use of automated telephone dialing systems (ATDS), pre-recorded voice messages, SMS text messages and fax machines unless the recipient has given express written permission, or legal consent, to be contacted.
The TCPA revisions implemented by Wheeler in 2013 expanded upon the original regulations as it relates to consent stating that unambiguous prior written consent will be required for all ATDS and prerecorded calls and texts made to mobile phones and no established relationship exemption would apply. Meaning, regardless of any prior business relationship, marketers conducting outbound calling must have prior unambiguous, written consent.
A TCPA exemption was carved out for calls that are manually dialed from a non-ATDS, or system that does not have current or future capacity to be automated dialing platform, and do not contain a pre-recorded message, but clarification of what constitutes a true ‘manual’ dial left industry wanting more.
With Wheeler’s departure, many Democrats now fear that Trump may attempt to overturn some, if not all, of the FCC regulations and policies that have been enacted during the Obama administration.
An FCC spokesman said, Trump’s FCC could potentially blow up everything that Wheeler’s implemented, but noted that if that were to happen it would likely be met with potential litigation.
No one knows exactly what the FCC will look like under a Trump administration or which regulations will be enforced and which will be ignored.
We do know that Trump says he will be more pro-business, and has questioned whether other hyper regulation such as Dodd-Frank goes too far, but what exactly that means as it pertains to compliance related issues right now is still unclear.
The industry obviously would welcome less new regulation, the hardening of existing regulations, and a clear understanding of enforcement of those regulations seen in the marketplace.
It will, however, be very interesting to see how this all plays out over the early part of the impending Trump administration.