FCC Releases TCPA Enforcement "Reminder" as Speculation Continues About Trump Effect

In an Enforcement Advisory released last Friday, the Federal Communications Commission (FCC) issued a reminder that Telephone Consumer Protection Act (TCPA) restrictions apply not only to calls to cell phones, but also text messages.

The advisory states that the TCPA limits autodialed calls and prerecorded – or artificial voice – calls to wireless numbers; emergency numbers; guest or patient rooms at hospitals, health care facilities, elderly homes, or similar establishments; and to any service for which the called party is charged for the call. The FCC’s corresponding rules restrict the use of prerecorded-voice calls and automatic telephone dialing systems, including those that deliver robotexts.

Like calls, robotexts to any to any telephone number assigned to a cell phone or other mobile device (such as a pager) are prohibited, unless made with the prior express consent of the called party, and unless the calls or text messages are:

(1) made for emergency purposes;

(2) free to the end user and have been exempted by the Commission, subject to conditions prescribed to protect consumer privacy rights; or

(3) made solely to collect debts “owed to or guaranteed by the United States.”

Those contending that they have prior express consent to make robotexts to mobile devices have the burden of proving that they obtained such consent. This includes text messages from text messaging apps and Internet-to-phone text messaging where the technology meets the statutory definition of an autodialer. The fact that a consumer’s wireless number is in the contact list of another person’s wireless phone does not, by itself, demonstrate consent to receive robotexts. Further, recipients may revoke their consent at any time using any reasonable method. When a recipient of an autodialed text has revoked consent to receive future robotexts, the text sender may immediately send one final autodialed text to confirm the recipient’s opt-out request.

The Commission has determined that when a caller reasonably relies on prior express consent to robocall or robotext a wireless number and does not discover that the number has been reassigned to another party prior to making the call or text, the caller is not liable for the first call or text going to the called party who did not provide consent. They are, however, liable for any continued calls or text messages to a reassigned number after the initial call or text, regardless of whether or when they learn of the reassignment.

Robotext violations are subject to enforcement by the FCC, including forfeiture penalties up to $18,936 per violation, and state enforcement agencies. (Emphasis added)

insideARM Perspective

While this notice is not specifically directed at debt collectors, and most debt collectors do not presently text consumers - at least not in their initial communications - the ability to communicate with consumers in ways that are most familiar and comfortable to them has become increasingly challenging.

The ARM industry has argued that debt collectors are not telemarketers, and the ability to communicate with consumers is critical to their ability to resolving their past due accounts. ACA International’s lawsuit against the FCC on this matter is on-going, with oral arguments delivered just last month. ACA, jointly with other petitioners including the U.S. Chamber of Commerce, have argued that the FCC’s 2015 Order “rewrote the TCPA,” “jeopardizes desirable communications that Congress never intended to ban,” and “encourage[s] massive TCPA class actions seeking crippling statutory damages.”

The democratic FCC Chairman Tom Wheeler has not been swayed by these arguments, even when vigorously defended by republican commissioners Ajit Pai and Michael O’Rielly, who wrote,

Today’s order has been hailed as “protecting” Americans from harassing robocalls and texts. That is a farce. Instead, the order penalizes businesses and institutions acting in good faith to reach their customers using modern technologies. I’m sure it will be said that we are approving half of the petitions before us. But, that is a completely misleading point, because many of the petitions were filed due to the belief that the Commission would not do anything to properly address the two big issues: reassigned numbers and autodialers.

He further added,

Starting with a threshold issue, I disagree with the premise that the TCPA applies to text messages. The TCPA was enacted in 1991 – before the first text message was ever sent. The Commission should have had gone back to Congress for clear guidance on the issue rather than shoehorn a broken regime on a completely different technology.

This FCC activity proceeds as parallel federal rulemaking efforts related to the Fair Debt Collection Practices Act also move forward. Many stakeholders are pushing for modernization of the Act to incorporate the practical use of newer technologies such as text and email, which consumers increasingly prefer. While on the one hand government favors “Fin Tech” and new approaches to consumer-friendly access to financial services, on the other hand it would wind back the clock in the name of privacy and protection.

Time will tell whether a Trump administration will have any effect on this moving train.

Editor’s Note: insideARM maintains a free TCPA resources page to provide the ARM community a destination for information on the Telephone Consumer Protection Act of 1991 ("TCPA"). This page is generously supported by LexisNexis. See the page here or find it in our main navigation bar from any page on insideARM.

The cornerstone of the page is a chart of significant TCPA cases. Click on the link in the chart for the complete text of the decision. Where insideARM has already published a story on the case, we provide a link. Case information is provided by the Bedard Law Group.