Attorney Insight: The FCC's TCPA Consent Order

Since the FCC released its consent order regarding the Telephone Consumer Protection Act (TCPA) back in mid-July, insideARM has hosted two webinars focusing specifically on the language of the order, and what clarity, if any, agencies can find.

The second of our webinars was an omnibus of industry attorneys — John Bedard, Don Maurice, Joann Needleman, and John Rossman — answering audience questions. The below is taken from our report, To the Point: The FCC’s TCPA Consent Order, available for pre-order now. (The full report will be released this Friday.)

If my dialer does not have sequential dialing, am I okay?

John Rossman

John Rossman-I like this idea. You’ve got a two-step approach. Keep in mind what the FCC said: There must be more than a theoretical potential that the equipment could be modified to satisfy the auto-dialer definition. So now, lawyers are going to fight for years over what a “theoretical potential” is.

But applying it to this situation, is this theoretical or is this something that’s more than theoretical? If truly the only software that can be introduced to this device is software that this one company makes, and it has an agreement that it will never sell that software, and if that software is installed, the equipment will not operate—there’s in essence a kill switch on it—I like this solution. Has it been tested in any court? No.

But here again, if we’re looking just to the FCC—and as we know, there are judges that will look at the FCC opinion and say, that’s good, but I’m going to apply this standard—while it has value, there are judges that can make a determination not to give it the weight that the consumer may want to give to it.

Don Maurice

Don Maurice- Remember, with the FCC order we also have to consider the ability to dial from a list of numbers, which I think is problematic for many. And so when we talk about auto-dialing and dismantling just sequential or random numbers, we have to think about now lists of numbers as well.

I think it would be great if the device would melt at the first ability to try to call more than 100 numbers. The technical support for that evidence is going to be necessary as well. But it sounds like a solution under the right thought pattern. But I would like it to be able to melt by itself if it was even attempted to dial more than 100 numbers.

John Bedard

John Bedard-This is my thought: The FCC has been pretty clear that what they don’t approve of is clever circumvention of the definition. And to me, this is an attempt to work within new boundaries that they’ve given us, to exclude our machines from the definition of dialer. But there comes a point at which you modify something so much that it is no longer what it started as. And if you modify it in a way that it can never go back to the way it started, then you don’t have what you started with.

And I like this approach, because it’s a two-step approach. One, the first step, is to ensure that the thing you have and that you begin with is not a dialer. And then, the second step here is what I call inserting impossibility into the modification. And so if it is impossible to modify, then you really don’t have a dialer to begin with, and we’ve eliminated this worrisome thing about future capability, because we’ve inserted impossibility into the process. And just like Don said, if you tried to modify it and it melted, then really we are now very close, if not firmly inside, this theoretical possibility that the thing could somehow mutate back into what it ever was to begin with, which is a dialer.

And so all that’s to say is I like this approach. It comes off at first blush as being a circumvention, but when you really peel the onion back, I don’t think it’s a circumvention. I think it’s starting from a place that is firmly outside the definition, and making sure that it stays there permanently.

Joann Needleman

Joann Needleman-Let me take a very 10,000-foot philosophical approach. You’ve got a federal agency telling you what innovations you can have and not have. I think that’s very dangerous. We want to protect the consumer, I get all of that. But to say you can only innovate so far, or you only can innovate in this way, I think is problematic.

Now, from the debt collection perspective, which we’re all in, we understand those limitations. But this order, I think why this order is so important is that it crosses so many different types of industries, and it affects—debt collection has really been in the crosshairs of it—but healthcare, financial institutions, airlines, you name—my son’s school. I get texts and calls that it’s a snow day or whatever. Everybody is using some sort of technology.

And now you’ve got federal agencies telling you how and when to use that technology and when you can innovate and when you can’t, and how you should innovate. I think that’s something that we really need to think about, again, from a very high level.