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E R I C A L L EN. AT TO R N E Y & M A N A G I N G M E M B E R - A L L E N L E G A L S E R V I C E S P L L C
D AV I D K A M I NS K I . PA R T N E R - AT TO R N E Y AT C A R L S O N & M E S S E R L L P
TO N I A K L AU S NER . PA R T N E R - W I L S O N S O N S I N I G O O D R I C H & R O S AT I
C H R I ST I NE R E I L LY. PA R T N E R . C O - C H A I R , TC PA C O M P L I A N C E A N D C L A S S A C T I O N D E F E N S E - M A N AT T, P H E L P S & P H I L L I P S , L L P
M O D E R AT E D B Y: R YA N T H U R M A N . D I R E C T O R O F S A L E S & M A R K E T I N G
• Recognized leader in TCPA compliance
• Over 30 Billion scrubs over 15 years with no TCPA violations
• Exclusive Litigator Scrub solution identifies serial litigators
The FCC 2015 Declaratory Ruling –Reaffirms/Clarifies TCPA Rules
1. On July 10, 2015, the FCC released its Omnibus Declaratory Ruling and Order (“7/10/15 Order”) in response to 21 Petitions regarding the definition of an ATDS, liability for calls to reassigned numbers and other issues.
◦ The FCC reaffirmed its position that the TCPA is to be construed broadly
◦ The FCC reaffirmed TCPA is to be construed in favor of the consumer and EMPOWER consumers to stop unwanted calls (para. 1)
◦ The FCC reaffirmed TCPA protects consumer privacy and public safety (emergency line)
2. The FCC reaffirmed TCPA’s restrictions to wireless numbers apply to non-telemarketing calls (Ex. informational calls.) (7/10/15 Order, para. 123)
3. Debt collection calls remain within the purview of the TCPA
4. FCC states it was making a Declaratory Ruling that “clarify[ies] existing law or resolves controversy regarding the interpretation or application of existing law and precedents.” (7/10/15 Order, para. 23) NOT ENTIRELY ACCURATE
§ 227(b) Restrictions on use of automated telephone equipment
(1) Prohibitions:
It shall be unlawful for any person within the United States or any person outside the United States if the recipient is within the United States –
A. to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice - …
B. to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call. (Emphasis added)
LANDLINE CALLS – § 227(b)(1)(B) - No liability for artificial/prerecorded informational voice calls – Commercial Call exemption applies - 64.1200(a)(3)(iii)
1.Reaffirms 2003, 2008 FCC rulings that ALL predictive dialers are autodialers. (7/10/15 Order, para. 12-13). PD’s retain the capacity to dial thousands of numbers in a short period of time and could harm public safety
2.A dialer is equipment which has “capacity to dial numbers without human intervention” – FCC 2003, 2008 Rulings (Note: How the human intervention element applies to a particular equipment involves a case-by-case determination)
3.An ATDS includes when calling a set list of consumers. (para. 10)
4.Equipment is ATDS even if not presently used for that purpose.” Id. (emphasis added)
5.Does not include speed dialing. (7/10/15 Order, para. 17)
“CAPACITY” Clarified: the capacity of an autodialer is not limited to its current configuration but also includes its potential functionalities (7/10/15 Order, para. 16)
“Capacity” to be interpreted Broadly (7/10/15 Order, para. 19)
Future software additions are included in capacity◦ There are “outer limits” to capacity - “must be more than a theoretical potential
that the equipment could be modified to satisfy the ‘autodialer’ definition.” Id.
Not all devices are autodialers even if has some capacity to store and dial numbers (7/10/15 Order, para. 18) –
Ex. handset with speed dial is NOT a dialer. Rotary Phone not a dialer
Does broad construction of “capacity” sweep in smartphones ?? No lawsuits filed in this regard
There was “no evidence that friends, relatives, and companies with which consumers do business find those calls unwanted”
FCC will take a “wait and see” approach and monitor issue and further clarify if needed
1.Inconsistent definitions of an ATDS in FCC 2015 Ruling
“capacity to store or produce telephone numbers to be called, using a random or sequential number generator” – i.e., the TCPA statutory definition
(7/10/15 Order, para. 109, 111, 112)
“capacity to dial numbers without human intervention” – FCC 2003, 2008 Rulings (Note: How the human intervention element applies to a particular equipment involves a case-by-case determination)
(7/10/15/Order, para. 14)
“dialing equipment that generally has the capacity to store or produce, and dial random or sequential numbers” –
Additional FCC Rules on Auto dialers“Do Use of Separate Systems In Dialing Process Avoid ATDS Issues?? –
Separate equipment dividing storage and calling functions between two companies could be considered an ATDS. (7/10/15 Order, para. 23)
If the net result of combining operation enables the equipment to have the capacity to store or produce telephone numbers to be called using a random or sequential number generator. (7/10/15 Order, para. 24)
Something good for apps and platform providersPetitions filed by several app providers seeking rulings that they were not liable when their users used them to send auto reply texts and text invitations to use the apps.
Legal issue is who “initiates” the call or text.
In the contexts of apps and texting/calling platforms that can be used by others, the FCC says that it will look to the “totality of the facts and circumstances” to determine:
◦ 1. Who took the steps necessary to physically place the call; and
◦ 2. Whether the app or platform provider was so involved in placing the call to be deemed to have initiated it "considering the goals and purposes of the TCPA."
FCC Reaffirms CONSENT RulesThe FCC does not require any specific method by which a caller must obtain prior express consent. Para. 49 –
Based on Longstanding Rule – “[P]ersons who knowingly release their phone numbers have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary”.
A number in a contact list is not prior express consent in part because consent must be express, not implied. Para. 47, 51, 52
Burden on the caller to prove it obtained necessary prior express consent. Para. 47
FCC says consent ruling should be construed “narrowly” FCC Amicus Brief, June 30, 2014,
Additional Information on RevocationRevocation is the same for informational and telemarketing calls. Para. 69
Caller’s burden to prove consent. Have ability to do so. Para. 70
Callers should maintain proper business records tracking consent. Para. 70 - The well-established evidentiary value of business records means that callers have reasonable ways to carry their burden of proving consent.)
PROVING ORAL CONSENT – Difficult, and documenting in account records could fact dispute. Solution: RECORD, RECORD, RECORD
Single-caller rule—a “single caller” gets one-free pass.• Single caller defined as “any company affiliates, including subsidiaries.”
• “Two affiliated entities may not make one call each, but rather one call in total.” (¶72, n.261)
Wrong/misdialed number calls? One-free pass does not apply.
Bad faith defense? NONE, even if called party purposely and unreasonably waited to notify the calling party regarding reassignment in order to accrue statutory penalties
How is this practical? FCC believes the existence of database tools combined with best practices, and a one-free pass rule, “together make compliance feasible.” (¶83)
How to Comply (Cont’d)• Implement procedures for recording wrong number/reassigned number
reports received by customer services reps placing outbound calls
• Implement processes for allowing customer service agents to record new telephone numbers when receiving calls from customers
• Utilize an autodialer, manual dialer, and/or live caller 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 two-way call after a period of attempting to contact a consumer
• Enable customers to update contact info by responding to any text message they receive
“Old” Written Consent Is Not EnoughThe Coalition of Mobile Engagement Providers and the Direct Marketing Association filed petitions seeking rulings that their members could rely upon written consent provided prior to October 16, 2013.
Prior express written consent regulation for telemarketing calls and text to wireless numbers and all telemarketing artificial or prerecorded voice calls was not clear as to whether new consent required for all such calls made after regulation became effective.
FCC says you must get new consent consistent with disclosure requirements.
Clarifies that disclosures must be given and for ongoing campaigns disclosures in a call to action will not suffice; they must be in the written agreement.
Limited Waiver of Prior Express Written Consent Regulation
Grants a retroactive waiver of the prior express written consent regulations
Duration of waiver: October 16, 2013 through 89 days following release of Order
Waiver applies to Petitioners and their members as of July 10, 2015
Expectations during remaining duration of waiver: obtain for any future marketing calls/texts prior express written consent in the manner required by the current rule
Clarifies that disclosures in definition of “prior express written consent” are required
Says for the first time that including disclosures in call to action is not sufficient for ongoing campaigns; must have disclosures in the written agreement itself.
Exemptions for Certain Financial MessagesThe TCPA allows the FCC to exempt certain calls that the call recipient is not charged for (“Free-to-End-User” Calls). Responding to a request by the American Bankers Association, the FCC granted exemptions for:
(1) Fraud and identity theft alerts;
(2) Data breach alerts;
(3) Messages informing victims of a data breach about remedial measures;
Exemptions for Certain Healthcare MessagesIn response to the AAHAM petition, the FCC also exempted certain Free-to-End-User Calls made by the healthcare industry:
1) Appointment and exam confirmations and reminders;
2) Wellness checkups;
3) Hospital pre-registration instructions;
4) Pre-operative instructions;
5) Lab results;
6) Post-discharge follow-up intended to prevent readmission;
Equipment that sends internet-to-phone text messages is an autodialer under the TCPA. (e.g., [email protected] )
“[W]e clarify that other types of text messages that pose the same consumer harms are subject to TCPA consumer protections. Specifically, consumer consent is required for text messages sent from text messaging apps that enable entities to send text messages to all or substantially all text-capable U.S. telephone numbers, including through the use of autodialer applications downloaded or otherwise installed on mobile phones. Consumers face the same privacy impact and may incur data costs from such texts. To free these texts from the TCPA’sprotection would leave a glaring gap in the statute’s coverage.” (¶116)
Call-Blocking TechnologyResponding to a letter from the NAAG:
1) Nothing in rules prohibits carriers or VoIP providers from implementing call-blocking technology that can help consumers who choose to use such technology to stop unwanted robocalls.
2) Encompasses both residential or individual customers as well as business customers of the service providers.
3) FCC encourages carriers to provide blocking services, but to avoid blocking robocalls from public safety and law enforcement.
4) Must disclose risk that certain desired calls may be blocked.