TCPAland

Key FCC TCPA Orders

1992 Implementing Order

Highlights (editorial comments–not legal advice folks):

  1. FCC recognizes balance between “the privacy concerns which the TCPA seeks to protect, and the continued viability of beneficial and useful business services.”
  2. FCC emphasizes “that the term autodialer does not include the transmission of an artificial or prerecorded voice.”
  3. FCC first finds: “persons who knowingly release their phone numbers have in effect given their invitation or permission to be called at the number
    which they have given, absent instructions to the contrary.”
  4. FCC finds that “the legislative history indicates that the TCPA does not intend to unduly interfere with ongoing business relationships; barring autodialer solicitations or requiring actual consent to prerecorded message calls where such relationships exist could significantly impede communications between businesses and their customers.” (Ultimately only applies to calls to landlines).
  5. FCC concludes “that an express exemption from the TCPA’s prohibitions for debt collection calls is unnecessary because such calls are adequately covered by exemptions we are adopting here for commercial calls which do not transmit an unsolicited advertisement and for established business relationships.”
  6. FCC specifically finds that debt collection calls are “commercial calls which do not adversely affect privacy rights and which do not transmit an unsolicited advertisement.”
  7. ” Based on the plain language” of the statute the FCC concludes the “TCPA did not intend to prohibit autodialer or prerecorded message calls to cellular customers for which the called party is not charged.” (Eric’s note: Careful here–courts don’t seem to be paying attention to this part.)

1995 Ruling on Petitions to Reconsider Implementing Order

Highlights (editorial comments–not legal advice folks):

  1. Summarizes ATDS usage as: “calls dialed to numbers generated randomly or
    in sequence (autodialed)”
  2. Again affirms that debt collection calls are not subject to telemarketing restrictions

2003 Report and Order

Highlights (editorial comments–not legal advice folks):

  1. Creates National Do Not Call List and Exemptions
  2. Determines that predictive dialers are subject to the TCPA because “[t]he basic
    function of such equipment [is] the capacity to dial numbers without human intervention.”

January 4, 2008 Declaratory Ruling

Highlights (editorial comments–not legal advice folks):

  1. The TCPA applies to debt collection calls to cell phones.
  2. Numbers provided to callers in connection with the transaction giving rise to a debt can be called using automated technologies absent instruction to the contrary.
  3.  Burden of production is on caller if dispute over consent arises.
  4. Affirms earlier ruling that predictive dialers are subject to the TCPA

February 15, 2012 Report and Order

Highlights (editorial comments–not legal advice folks)

  1. Requires express written consent for telemarketing calls to cell phones made using automated technologies
  2. Defines express written consent and clear and conspicuous requirements
  3. Does away with established business relationship exemption
  4. Affirms that debt collection calls are not telemarketing calls requiring express written consent

May 9, 2013 Declaratory Ruling

Highlights (editorial comments–not legal advice folks)

  1. Concludes that vicarious liability principles apply to the TCPA
  2. Sellers are not directly liable for calls made by third-party contractors merely because the calls are made on their behalf

Omnibus TCPA Order (July 10, 2015)

Highlights (editorial comments–not legal advice folks)

  1. Affirms predictive dialers are ATDS.
  2. Holds that “capacity” of ATDS includes potential or latent capacities.
  3. Rules that all software-enabled dialing devices have the flexibility necessary to be potentially capable of performing the functions of an ATDS.
  4. Fails to clearly define functionalities of ATDS–resulting in eventual reversal by D.C. Circuit Court of Appeal.
  5. Definition of ATDS converts every smartphone in America into an ATDS.
  6. Rules that a consumer can revoke their consent in any “reasonable manner”.
  7. Requires that a consumer “clearly express” a desire for calls to stop in order to effectively revoke consent.
  8. Rules that the “called party” for purposes of consent is the “subscriber” or “customary user” of a cell phone.
  9. Finds that no comprehensive database of recycled phone numbers exist.
  10. After concluding that callers can “reasonably” rely on consent of former subscriber for unspecified period of time, grants only a one call “safeharbor” for calls to recycled numbers. This portion of the ruling was later reversed.
  11. Text messages are “calls” subject to the TCPA.
  12. The word “dial” includes transmission of sms data to wireless carriers via e-mail using their internet portals.

July 5, 2016 Declaratory Ruling (Broadnet Petition)

Highlights (editorial comments–not legal advice folks)

  1. Neither the federal government nor its contractors are “persons” subject to the TCPA.

August 11, 2016 Declaratory Ruling

Highlights (editorial comments–not legal advice folks)

  1. Implements Bi-Partison Balanced Budget Act of 2015 carve out for collectors of federally-backed debt.
  2. Creates significant restrictions on the number and content of calls collectors of federally-backed debt can placed without consent.
  3. Applies calling restrictions to federal government and contractors despite ruling in Broadnet Petition (that federal government is not “person” subject to the act).