FCC 2015 Rulemaking Highlights

On July 10, 2015, the FCC issued its long-awaited rulemaking on the Telephone Consumer Protection Act (the “TCPA”). Undoubtedly, the rulings are heavily consumer centric offering little help to those businesses which have long complained of TCPA litigation abuse. Interestingly, the order resulted in two scathing dissents from FCC commissioners. Regardless as to the “side” taken, the ruling does offer valuable help in resolving issues that have been heavily litigated since the last FCC order. A highlight of the FCC’s determinations is contained herein: Interpretation of a dialer:  If the dialer is not “currently” or “presently” dialing random or sequential phone numbers, this condition does not exempt the equipment used from the TCPA’s definition of “dialer.”

Consent:

  • The following does not constitute “consent” for purposes of the TCPA:
    • Being on an acquaintance’s phone contact list.
    • Receiving consent from a prior subscriber or user of the telephone number.
  • Consumers may revoke consent at any time and through any reasonable means.
  • 2012 “Prior Express Written Consent” Rule for certain parties waived temporarily to allow gathering of updated consent.
  • Certain free, pro-consumer financial and health care-related messages are exempted from consent requirement.

Text messages:

  • Internet-to-phone text messages require consumer consent.
  • Text messages are “calls” subject to the TCPA
  • “On demand” text messages sent in response to a consumer request are not subject to the TCPA.

VoIP:

  • Carriers and Voice over Internet Protocol (VoIP) providers can implement call-blocking technology to help consumers stop unwanted robocalls.

Software:

  • Application providers that play a “minimal role” in sending text messages are not per se liable for unwanted robocalls.
  • Collect-call services are not liable for making unwanted robocalls when providing “call set-up” information.

For more information on the new ruling, please contact Nicole M. Strickler at 312-334-3442 or nstrickler@messerstrickler.com for more information.