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Declaratory Ruling on TCPA Leaves Key Issues Unclear, Open to Challenges

July 15, 2015

The FCC (News - Alert) recently issued a declaratory ruling on the TCPA that affects any business engaging in outgoing communications with the public. Because of ambiguities in certain provisions, the ruling makes it challenging for businesses to know if they are compliant. According to Laura Phillips and Eduardo Guzman writing for the National Law Review, it faces inevitable legal challenges as a result.

The TCPA has strict regulations on the types of calls made by ‘autodialers’, so knowing what constitutes an autodialer would be helpful if a business wants to avoid lawsuits, fines, and other sanctions. To paraphrase the definition, an autodialer is equipment with the capacity to dial numbers from storage, random generation, or sequential generation.

One of the key issues is the definition of capacity: does it mean that the device can do those tasks in its current configuration or is it more broadly defined to include the ability to modify the device to do those tasks? The FCC supported the latter, broader definition, and added that the lack of present ability for a device to generate phone numbers randomly or sequentially did not affect this definition. 

While the FCC stated in the ruling that its acceptance of a broader definition of capacity should not be interpreted to include all devices that have dialing capabilities, the agency would not specifically define which devices should be included in the definition.

Another troubling area deals with the issue of reassigned phone numbers. Businesses complying with Do Not Call and other regulations will store the phone numbers of customers who gave consent to be contacted in the future. If those customers change their phone numbers without informing the businesses of the change, then these businesses won’t know in advance that they are calling someone else, and are possibly out of compliance for doing so.

The FCC allowed for a one-call exemption under such conditions, but it wasn’t very flexible. Businesses would be allowed one call to a number to determine if it had been reassigned. If there was no answer, too bad--no more calls allowed. The agency placed the onus on the business to listen to recordings that would indicate a new person now had the number and to use third-party databases of reassigned numbers.

Less than a week after the ruling, there is already a challenge. ACA International (ACA), an association of credit and collection professionals, filed a petition for review on the ruling on July 14. The challenge deals with the capacity definition, prior express consent with reassigned numbers, and the treatment of predictive dialers.

Most people are not sympathetic with the telemarketing firm that calls the homeowner 20 times about refinancing, or the apartment renter about aluminum siding. Businesses that act in bad faith or do not make the effort to be in compliance when making outgoing calls should be punished. 

The problem is that the pendulum has shifted far enough in the opposite direction that businesses acting in good faith in this area have to navigate a minefield of regulations that aren’t clear and seem arbitrary. It subjects them to legal costs that they should not have to pay. Hopefully the current ACA challenge and other anticipated challenges get better clarification on regulations so that businesses that ‘do the right thing’ are not in constant legal peril. 

Edited by Rory J. Thompson