"The Ayes Have It" -- FCC Passes Declaratory Ruling on Portions of the TCPA

The FCC held a hearing this morning on a proposed Declaratory Ruling and Order that FCC Chairman Tom Wheeler claimed  will “reaffirm the Telephone Consumer Protection Act’s (TCPA) protections against unwanted robocalls, encouraging pro-consumer uses of robocall technology, and responding to a number of requests for clarity from businesses and other callers.”

insideARM previously reported on Chairman Wheeler’s May 27, 2015 Fact Sheet regarding his TCPA proposals. Unfortunately, as noted in our earlier article, that “Fact Sheet” was short on facts. The document was light on specifics regarding the proposed Declaratory Ruling. However, it was clear that the proposed ruling was generally not going to be pro-business and specifically, not helpful to the ARM industry.

ARM industry experts were not optimistic regarding the proposed Declaratory Ruling.  As it turns out, based upon the dialogue at the hearing, industry concern and pessimistic outlook was justified.

There are a number of specific areas of concern for the ARM industry in the Declaratory Ruling.

1. Consumers would have the right to revoke their consent to receive robocalls and robotexts in any reasonable way at any time. It is not yet clear what that means. But, based upon the discussion at the hearing, it means exactly what it says.  A consumer may revoke consent in any way, anytime, and anywhere.
2. If a phone number has been reassigned, callers must stop calling the number after one call. Chairman Wheeler referred to this provision as the “One Strike Rule.” Basically what the Chairman suggested is that a caller could make a single call to a re-assigned number without liability. Subsequent calls would expose the caller to the strict liability under the statute.
3. Defines an “autodialer” as any technology with the capacity to dial random or sequential numbers. Based upon the discussion at the hearing it appears that this is to be considered in the broadest terms possible.

The Declaratory Ruling was confirmed by the FCC by a 3-2 vote.  The vote was along political party lines.  The 3 Democrat commissioners (including Chairman Wheeler) voted in favor of the Ruling while the 2 Republican commissioners opposed it.

The depth of the disagreements between the individual commissioners on this issue was palpable. It was clear that the Republican commissioners felt that the new Ruling went too far and was punitive to legitimate business.  The Democrat commissioners lumped all potential callers into the unscrupulous “robocaller” category.

Much more will be written on this matter once the Declaratory Ruling is made public and reviewed.