March 2, 2017

FCC Issues TCPA Declaratory Ruling

In my previous post, I wrote about the Federal Communications Commission’s vote to move forward on Chairman Tom Wheeler’s proposed revisions to the Telephone Consumer Protection Act (TCPA,) which was dubbed “one of the most significant FCC consumer protection actions since it established the Do-Not-Call Registry with the FTC in 2003.” As of July 10, those changes became effective as the FCC released its declaratory ruling.

While there was much speculation that the FCC would expand the scope of the law, it appears that the FCC stayed true to its promise to offer some clarity to an industry inundated with class action suits.

Here are the most important things your company needs to know about the FCC’s final ruling:

Definition of Automated Telephone Dialing System (ATDS)

Initially, the FCC stated the definition of ATDS as any equipment that “has the capacity, even with some modification, to dial random or sequential numbers…even if the caller is not currently or presently dialing random or sequential phone numbers but is instead calling a set list of numbers.” This action sent businesses and industry pundits into a frenzy, believing that any cell phone could be held to this definition. However, the FCC clarified that “the term ‘capacity’ in the definition of [ATDS] is not unbound or so broad as to make any equipment that can dial a number an [ATDS].” While there was much speculation that the revisions would significantly expand the definition, the new definition is merely formalizing the guidance that was already provided by the FCC; however, the FCC did broaden the scope of the definition by stating it still reserves the right to determine what an ATDS is on a “case by case basis.”

Calls to Reassigned Numbers ‘Safe Harbor’

One of the biggest complaints businesses had about the TCPA is that they could be held strictly liable for calling a previously consented-to number in good faith without knowing it was reassigned. They now have a bit of breathing room, as the new rules create a one-call safe harbor, allowing a single call to a telephone number if a number has been reassigned before facing liability. The “caller, and not the called party, bears the burden of demonstrating: (1) that he had a reasonable basis to believe he had consented to make the call, and (2) that he did not have actual or constructive knowledge of reassignment prior to or at the time of this one-additional-call window.”

A few other provisions to call out:
Carriers were given the green light to offer consumers ‘robocall-blocking’ tools.
Consumers have the explicit right to revoke consent to receive prerecorded messages and text messages by any ‘reasonable way.’
The FCC now allows specific exceptions to permit the use of ‘robocalls,’ such as alerts to possible fraud on your credit card or a reminder to refill a prescription.
The updated regulations confirm that text messages are covered under the TCPA since automated dialers can deliver text messages as well. Therefore, they are subject to the same consent requirements.
To make sure you comply with these rules going forward, audit your current compliance practices and procedures. Engage a third-party compliance expert, if needed, so calling policies have all of these regulations in mind. Negligence can ruin your brand and credibility among customers present and future and also make you susceptible to enormous fines and potential class action suits. – Melissa Bateman Fitzgerald, VP of Privacy Consulting, Gryphon Networks

Read more: Three Reasons for Automating your Call Compliance Center

Learn more: Why Gryphon