Antitrust Law Daily Wrap Up, PRIVACY NEWS: FCC affirms TCPA protections on stopping unwanted robocalls, (Oct 9, 2015)

By Linda O’Brien, J.D., LL.M.

The Federal Communications Commission (FCC) has affirmed and clarified the requirements of the Telephone Consumer Protection Act (TCPA) by focusing on consumers’ rights to stop unwanted robocalls, including voice calls and text messages, a Federal Register notice.

In an Omnibus Declaratory Ruling and Order, the FCC addressed a number of petitions for rulemaking or clarification. The Omnibus Order strengthens the protections of the TCPA by confirming that: (1) callers cannot avoid obtaining consumer consent for a robocall because they are not “currently” or “presently” dialing random or sequential phone numbers; (2) being on an acquaintance's phone contact list does not amount to consent to receive robocalls from third-party applications downloaded by the acquaintance; (3) callers are liable for robocalls to reassigned wireless numbers when the current subscriber to or customary user of the number has not consented; (4) Internet-to-phone text messages require consumer consent; and (5) text messages are “calls” subject to the TCPA.

In the Order, the FCC also has confirmed that consumers may revoke consent at any time and through any reasonable means, and nothing in the Communications Act or the Commission's implementing rules prohibits carriers or Voice over Internet Protocol providers from implementing consumer-initiated call-blocking technology that can help consumers stop unwanted robocalls.

The Commission recognized the legitimate interests of callers by clarifying that (1) application providers that play a minimal role in sending text messages are not per se liable for unwanted robocalls; (2) when collect-call services provide consumers with valuable call set-up information, those providers are not liable for making unwanted robocalls; and (3) “on demand” text messages sent in response to a consumer request are not subject to TCPA liability.

Finally, the FCC waived its 2012 “prior express written consent” rule for certain parties for a limited period of time to allow them to obtain updated consent; exempted certain free, pro-consumer financial- and healthcare-related messages from the consumer-consent requirement; and provided guidance regarding the TCPA and the Commission's rules, empowering callers to mitigate litigation through compliance and dispose of litigation quickly where they have complied.

The TCPA was enacted in 1991 to address certain invasive practices of consumer privacy and risks to public safety. The TCPA and the FCC’s implementing rules prohibit: (1) making telemarketing calls using an artificial or prerecorded voice to residential telephones and (2) making any non-emergency call using an automatic telephone dialing system or an artificial or prerecorded voice to a wireless telephone number without prior express consent.

News: Privacy