Highlights from the FCC TCPA Omnibus Ruling and Order

On Friday, July 10, 2015, the Federal Communications Commission (FCC) issued its TCPA Omnibus Declaratory Ruling and Order (the Omnibus Order) in connection with the rulings that were narrowly approved at its June Open Commission Meeting. Those rulings, which were put forward by FCC Chairman Tom Wheeler, addressed the following points:

• Clarified the definition of “auto-dialer,” including that equipment used to send Internet-to-phone text messages is an autodialer;
• Reiterated that text messages are calls for purposes of the Act;
• Restricted the ability of callers to call a reassigned mobile phone number to a single call;
• Recognized the right of consumers to revoke consent to receive “robocalls” and “robotexts” in any reasonable way at any time;
• Clarified that the inclusion of a consumer’s number in the caller’s mobile phone contacts does not constitute consent by that consumer to receive unsolicited calls or texts;
• Recognized a narrow exception for certain “urgent” emergency texts (e.g. to alert consumers to the existence of possible identity theft); and
• Cleared the way for mobile carriers to begin offering consumers “robo-blocking” technologies.

The Omnibus Order is over 160 pages in length and provides additional direction and clarity on a number of important points. The following lists the key elements from the Order:

1. Clarifies that although the consumer’s prior express consent must be obtained for all unsolicited, non-emergency calls to a mobile number, such consent may be obtained verbally—versus in writing—for calls that are informational in nature and do not include telemarketing.
2. Acknowledges that there are “outer contours [to] the definition of ‘autodialer’ [which] do not extend to every piece of malleable and modifiable dialing equipment that could be considered to have some capacity, however small, to store and dial numbers. . .”[1] The Order dismisses the idea that its expansive definition of autodialer might be interpreted to apply to consumers’ typical use of smartphones, noting that commenters offered no evidence, and put forward no plausible scenarios, demonstrating that unwanted calls are likely to result from such usage.[2]
3. Clarifies that the porting of a phone number from wireline service to wireless service does not revoke the consumer’s prior express consent and the caller may continue to rely on that consent for the same type of calls to the now wireless number.
4. Specifically rejects the idea that the caller “may designate the exclusive method or methods customers must use to revoke ‘prior express consent’ previously granted to the caller. . .” and further asserts in this regard that “consumers may revoke consent in any manner [including verbally] that clearly expresses a desire not to receive further messages and callers may not infringe on that ability. . .”[3]
5. With respect to reassigned mobile numbers, notes that: “Callers have a number of options available that, over time, may permit them to learn of reassigned numbers. For example, callers may ask consumers to notify them when they switch from a number for which they have given prior express consent. Nothing in the TCPA or our rules prevents parties from creating, through a contract or other private agreement, an obligation for the person giving consent to notify the caller when the number has been relinquished.”[4]
6. Expressly rejects the idea of a “good faith exception” for calling reassigned mobile numbers.[5]
7. Regarding the prior written consent rule that went into effect on October 16, 2013, accedes to the request of certain petitioners for a limited “waiver” from compliance by allowing them 90 days from the date of the Order to “come into full compliance” with the 2013 rule.[6]
8. Clarifies that a one-time text sent in response to a consumer’s request for information does not violate the TCPA where it: “(1) is requested by the consumer; (2) is a one-time only message sent immediately in response to a specific consumer request; and (3) contains only the information requested by the consumer with no other marketing or advertising information.”[7]
9. Reiterates that “equipment used to originate Internet-to-phone text messages to wireless numbers via email or via a wireless carrier’s web portal is an ‘automatic dialing system’ as defined in the TCPA, and therefore calls made using the equipment require consent.”[8]
10. Elaborates upon the new limited exception for “urgent” text messages by recognizing “certain [free] pro-consumer messages about time-sensitive financial and healthcare issues.”[9] Specifically, the Order exempts calls concerning: “(1) transactions and events that suggest a risk of fraud or identity theft; (2) possible breaches of the security of customers’ personal information; (3) steps consumers can take to prevent or remedy the harm caused by data security breaches; and (4) actions need to arrange for receipt of pending money transfers.”[10]
11. With respect to the four categories of calls subject to the limited exception for “urgent” calls (see above), the Order states certain conditions that must be complied with, including, but not limited to, the exclusion of any “telemarketing, cross-marketing, solicitation, debt collection, or advertising content,” a duration of no more than one minute per call, no more than three such calls over a three-day period, and “an easy means” for the consumer to opt-out of future calls.

Bridgeforce Law can assist you in the assessing the current state of your firm’s compliance with the TCPA We work with a variety of banks, ranging from the nation’s largest financial institutions to community banks, to arrive at solutions that are both technically compliant and practical in operation. To this end, we frequently call upon industry consultants when real-life, deep operational experience will facilitate long-term, sustainable compliance solutions.

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