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“Computerized calls are the scourge of modern civilization. They wake us up in the morning; they interrupt our dinner at night; they force the sick and elderly out of bed; they hound us until we want to rip the telephone right out of the wall.”Ernest Hallings, 137 Cong. Rec. 30,821-22 (1991)“I detest robocalls.” Jessica Rosenworcel, FCC Commissioner (2015)
■On July 10, 2015, the FCC released its Omnibus Declaratory Ruling and Order in response to 21 petitions regarding the definition of an automatic telephone dialing system, liability for calls to reassigned numbers and revocation of consent.
Definition of ATDSCapacity is not limited to the equipment’s current configuration, but includes potential functionality. ¶ 16.■FCC rejected argument that ATDS
must have capacity to dial without human intervention.
■There must be more than a theoretical potential that the equipment could be modified to satisfy the ATDS definition.
Definition of ATDS■It might be theoretically possible to
modify a rotary-dial telephone to such an extreme that it would satisfy the definition of an ATDS, but that possibility is too attenuated for FCC to find that a rotary phone has the requisite capacity.
Definition of ATDS■FCC rejected the analogy saying that
adding space to accommodate 25% more people is a mere theoretical modification that is insufficient to sweep it into the FCC’s interpretation of “capacity.” ¶ 16.
■The FCC definition of ATDS could include smart phones.
■FCC position: Not to worry; no lawsuits filed; “no evidence that friends, relatives, and companies with which consumers do business find those calls unwanted or take action against the calling consumer.”
■Dissenter Ajit Pai: Jim meets Jane at a party. The next day, he wants to follow up on their conversation and ask her out to lunch. He gets her cellphone number from a mutual friend and texts her from his smartphone. Pursuant to the order, Jim has violated the TCPA, and Jane could sue him for $500 in statutory damages.
ATDS Decisions Post FCC 2015 Order—Human Intervention
■Equipment with the capacity to store numbers and dial them from the database is an automatic telephone dialing system. It is irrelevant that humans are involved in the process of creating the list of numbers to be called.
■A machine that automatically dials telephone numbers from a pre-programmed list is an automatic telephone dialing system.
■The fact that a human being submits the numbers in a pre-determined list and order to be called is not sufficient to overcome the ATDS determination.
Schumacher v. Credit Protection Association, 2015 U.S. Dist. LEXIS 132752 (S.D. Ind.)
ATDS Decisions Post FCC 2015 Order Order—Human Intervention
■The Sapphire Gentlemen’s Club sends promotional messages to customers. Doing so involved multiple steps. First, a club employee inputs telephone numbers into a mobile marketing website. Second, the club employee types the messages, content, and designates specific phone numbers to which the messaging would be sent. Next, he clicks Send on the website in order to deliver the message in real time or at some future date.
Many petitioners sought clarification of the rules regarding calls made to a number that had been reassigned to one who had not provided consent.
Petitioners argued that such calls should be treated as ones made with consent because the intended recipient of the call had provided it. Petitioners conceded that once they learned the number had been reassigned, they had to stop calling.
The FCC rejected the petitioner’s arguments and took a hard line.
“Calls to reassigned wireless numbers violate the TCPA when a previous subscriber, not the current subscriber or customary user, provided the prior express content on which the call is based”
■ Single caller rule – a single caller gets one free pass. A caller is defined to include company affiliates and subsidiaries. The one free pass rule is one liability free call after a call has been reassigned. ¶72 n. 261. ¶89
■ Caller must show it had no knowledge of the reassignment and had a reasonable basis to believe it had consent. ¶72
■ The one call does not need to connect to a person or voicemail. “If this one additional call does not yield actual knowledge of reassignment, we deem the caller to have constructive knowledge of such.” ¶¶ 72, 73.
■ A party could purposely and unreasonably fail to notify you that a person is no longer at that number and simply accrue statutory penalties. ¶ 95.
FCC ideas about how to obtain knowledge of reassignment:■ The called party informs the caller of the number
reassignment. ¶ 82, n. 293, ¶ 83.■ The caller makes manually dialed calls to confirm identity.■ The name on the voicemail is different from the intended
recipients.■ The caller hears a tone indicating the number is no longer in
service.■ The caller sends an email or mail request to confirm telephone
numbers or update contact information.■ The caller acquires a paid database which reports numbers as
having a high probability of reassignment.■ The wireless carrier reports that the number is no longer in
service or has been reassigned. ■ The caller provides an opt-out mechanism on prerecorded calls
so that recipients can report a reassigned or wrong number.
Reassigned Wireless Telephone Numbers – What Can You Do?
■ Include an interactive opt-out mechanism in all artificial and prerecorded voice call so recipients may easily report a reassigned or wrong number.
■ Implement procedures for recording wrong numbers/reassigned numbers.
■ Implement processes to allow customer service agents to record new telephone numbers when receiving calls from customers.
■ Periodically send an email or mail request to the customer to update contact information.
■ Utilize an ATDS’s or live callers ability to recognize “triple-tones” that identify and record disconnected numbers.
■ Establish policies for determining whether a number has been reassigned if there has been no response to a call after a period of attempting to contact the customer.
■ Enable customers to update contact information by responding to any text message they receive.
Who is a Called Party?■ Mark Leyse sued under the TCPA after receiving a pre-
recorded telemarketing call on the landline he shared with his roommate. Leyse was not the intended recipient of the call. His roommate was.
■ The court concluded that Leyse had standing to sue because of his status as a regular user of the phone line and an occupant of the residence that was called.
■ Anyone within the “zone of interest” protected by statute may state a claim.
■ The court noted that the caller may invoke the consent of the “called party” as a defense even if the plaintiff is someone other than the “called party.” If the roommate had given consent to receive robo calls from the Bank of America, Leyse’s suit would be blocked.
Leyse v. Bank of Am. Nat’l Ass’n, 2015 U.S.App. LEXIS 17840 (3rd Cir.)
Revocation of ConsentQuery – How is the Eleventh Circuit’s ruling in Osario impacted by the FCC rule.■“In the absence of any contractual
restrictions to the contrary, [plaintiffs] were free to orally revoke any consent previously given to State Farm to call No. 8626 in connection with [plaintiff’s] credit-card debt.” Osario v. State Farm Bank F.S.B., 746 F. 3d 1242 (11th Cir. 2014)
■State in your contracts what you consider to be reasonable methods of revocation. Can’t hurt; might help.
■“The well-established evidentiary value of business records means that callers have reasonable ways to carry their burden of proving consent. We expect that responsible callers will maintain proper business records tracking consent.” ¶ 70.
■This quote shows the FCC does not understand how real world litigation operates.
Good Faith Defense■A Time Warner Cable customer upgraded his account
and requested a service call to his home the next day. Time Warner Cable sent reminder notices to a number it had on file, even though the number had been transferred to a third party. The third party sued.
■The Court ruled that there was no TCPA violation for a call because Time Warner believed “in good faith” that it had consent to call and that the call was being made for a service the customer had requested.
■This will be a minority ruling, but use it in your cases!
Danehy v. Time Warner Cable Enterprise LLC, 2015 U.S. Dist. LEXIS 125043 (E.D.N.C.)
■Campbell-Ewald Company v. Gomez, No. 14-8578 (U.S. Supreme Court) (Is petitioner entitled to derivative sovereign immunity from respondents’ suit because respondents’ claims arose out of petitioner’s performance of a contract with the federal government?)
■Broadnet Teleservices, LLC Petition for Declaratory Policy, CG Docket No. 02-278 (Seeks ruling that the TCPA does not apply to calls made by or on behalf of federal, state, and local governments when such calls are made for official purposes.)