Congress passed the Telephone Communication Protection Act (TCPA) in 1991. The FCC was given the power to interpret it. In July 2015, the FCC released a sweeping TCPA Declaratory Ruling and Order with clarification and new guidance on robocall restrictions. The order cleared up loopholes and strengthened consumer protections already on the books. The FCC’s 2015 Order is good for people with cell phones and bad for businesses that repeatedly call cell phones without permission.
The big reason behind the TCPA and the FCC’s 2015 Order is the huge number of complaints about ‘robocalls’ by businesses. These businesses market their products or services by cell phone or faxes to potential consumers and customers.
So what is a robocall?
A “Robocall” is any call that is dialed by an autodialer or answered with a recording or simulated voice. The TCPA prevents robocalls to cell phones.
What is an Autodailer?
The TCPA defines “automatic telephone dialing systems” or “auto-dialers” as “equipment which has the capacity – (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” The FCC has interpreted that definition broadly, to mean any dialing equipment that has the capacity to store or produce and dial random or sequential numbers, whether or not the equipment is actually used for that purpose.
Text Messages are “Calls” under the TCPA
The FCC reiterated that SMS text messages are subject to the same rules under the TCPA as voice calls and that Internet-to-Phone text messaging technology is a type of “auto-dialer” under the TCPA. Therefore, calls made using Internet-to-Phone text messaging technology also require consumer consent. You must give prior express written consent to receive text messages.
Prior Express Written Consent is Required
Automated telephone equipment cannot be used to call or send text messages to cell phones unless the caller has the consumer’s prior express written consent. If a caller violates this rule a consumer can receive damages for each violating call and message. If a caller willfully or knowingly violates this rule a court can increase the award.
Reassignment of cell phone numbers
A business placing robocalls needs to know the accuracy of the numbers its dialing, especially the cell phone numbers it is calling.
For example, in early 2014, Twitter was subjected to a $5 million class action lawsuit charging that it had violated the TCPA by sending unsolicited text messages to consumers. Twitter had those consumers’ consent to contact those phone numbers. However, Twitter did not know how many of these phone numbers in its database had been reassigned to new cell phone owners.
Imagine getting repeated unwelcome calls to someone else on your cell phone. Did you know that when a number is reassigned it is published in a database? All a caller has to do is check the database…or they could listen when you tell them that you are not the person they are calling.
Businesses that engage in high-volume calling must confirm that these phone numbers which includes phone numbers that they have consumers’ consent to call using an autodialer or prerecorded message, are still owned by the consenting consumer. Any phone call made or faxes sent to a non-consenting party violates the TCPA.
The difference between “manual” vs “autodial” phone systems
The TCPA restricts the use of “automatic dialing” systems, but not “manual” dialing phone systems. Business owners or managers often mistakenly think that making a “manual dial” call with an “auto-dialer” is simple, when it is not. A manual call is only accomplished when the system that places the call has no association or connection with the business or organization’s auto dialer. Whether a call is ‘manual’ or ‘automatic’ has nothing to do with the person making the call and what he or she thinks or intends to do. Only the phone system matters, not who the caller is or nature of the particular call.
A Consumer’s Right to Enforce the TCPA: Private Right of Action
The TCPA allows a consumer receiving calls to file a lawsuit against the caller alleging a violation of the TCPA and asking the court to either:
(a) enjoin such violation,
(b) seek to recover his or her actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater, or
(c) both such actions.
If a court finds that a defendant willfully or knowingly violated the law, the court may increase the amount of the award to an amount equal to not more than three times the amount otherwise available under the law.
Only the “Called Party” can Consent to Receive Calls
At least one court found that the “called party” must be the person who gave consent for the call. For example, a creditor can only call a consumer’s relative’s cell phone if that relative gave his or her express consent for the creditor to call. A third party cannot give consent for you to receive calls.
When calls to cell phones are the primary means of a debt collectors’ communications, then the consumers’ request must be considered. When a consumer verbally requests a creditor to stop calling, then that request must be honored. Courts have upheld that the principal that if a consumer tells a creditor to stop calling, then the calls must stop.
A robocaller cannot tell a called consumer how to revoke his or her consent. Consumers may revoke their consent through any reasonable means once they no longer desire to receive calls or text messages. This includes verbal communication. If you are getting robocalls, you don’t have to go through some complicated procedure to stop the calls. Just telling them to stop over the phone is all that is required. While it may be a good idea to document your revocation with a letter, you are not required to do anything but say “Please stop calling.”
Keep in mind that porting a telephone number from wireline service to wireless service does not, by itself revoke prior express consent. A caller is allowed to rely on your prior express written consent until you tell them otherwise.
Oral Revocation of Consent to Call
A 2014 case from the 11th Circuit Court of Appeals, which covers Alabama, Georgia, and Florida involved unwanted phone calls to consumers. In reviewing the case, the Appeals Court made several important rulings related to the TCPA:
The Court noted that the TCPA allows a consumer to orally revoke any “prior express consent” for the creditor to call the consumer. Phone calls to a consumer do not violate the TCPA if the consumer has given the creditor express consent to call him or her. In this case, the consumer expressly told the creditor to “stop calling.” The creditor argued that this oral revocation was not sufficient to revoke the consumer’s prior written consent to call. Although the lower court agreed with the creditor that oral revocation was not sufficient, on appeal, the Eleventh Circuit Court of Appeals disagreed and reversed the trial court’s ruling. The Appellate Court held that the TCPA allows a consumer to revoke consent in writing, and that oral or verbal revocation of consent is sufficient under the TCPA. As a result, the consumer’s request for the creditor to “stop calling” was sufficient to effectively revoke any prior written consent.
The FCC’s July 2015 took this ruling and made it nationwide. Anyone, anywhere in the US, getting calls to their cellphone can stop them by telling the caller to stop.
Call recipient consent can be granted, rescinded, and/or transferred
Defining the nature of a call recipient’s consent can be tricky and uncertain. A recent landmark case, Mais v. Gulf Coast Collection Bureau, showed how tricky and uncertain the nature of a call recipient’s consent can be.
When health care industry members seek to gain permission to contact a patient when he or she is incapacitated or recovering they often must rely on family members and others who aren’t the party (the patient) who gave his or her consent to be contacted.
The Mais Court clarified a hospital’s ability to obtain consent to dial a patient’s cell phone using an autodialer or prerecorded message from a patient’s authorized representative, and to pass consent on to the patient’s collection agency (or other third party).
No Charge is Required for a Call to Violate the TCPA
The Court of Appeals also ruled that the TCPA does not require a consumer to be “charged” for a call to be a violation of the TCPA. Thus, unanswered calls from creditors and calls to a consumer with an “unlimited minutes” plan violate the TCPA.
A business that wants to create a text message marketing campaign must comply with the TCPA, or that business could face hefty fines for SMS spam
Defining Who Initiates the Call: Texting and Calling Apps
The Commission clarified whether, and under what circumstances, the owner of a calling application (“app”) can be deemed the party who “initiate(s)” a telephone call and therefore subject to TCPA regulations.
The Commission determined that an app itself does not make or initiate a call when: (1) an individual uses the app to send an automatic text in response to a voicemail; or (2) an individual user chooses to send an invitational text using an app.
However, an app does make or initiate a call when the app “facilitates” the sending of the invitational text message by automatically sending the individual text utilizing a user’s contact list without significant input from the user.
Collect Calling Services and Prerecorded or Artificial Voice Messages
The FCC clarified that collect calling service providers that use prerecorded messages on an individual call basis to provide initial information when attempting to connect a collect call to a residential or wireless telephone number may complete the call without prior express consent and not be liable for a TCPA violation. The FCC found that the person who dialed the number, rather than the collect calling service, is the person who initiates the call for purposes of the TCPA.
A Wireless Number in a Contact List Does Not Establish Prior Express Consent
The FCC clarified that the presence of a consumer’s wireless number in the contact list of another person’s wireless phone does not, on its own, demonstrate consent by the consumer to the receipt of autodialed or prerecorded calls, including texts.
Reassigned Wireless Telephone Numbers
The FCC Order clarified that the TCPA requirements apply to the current subscriber of the wireless number, not the intended recipient of the call. Also, the term “called party” includes both the actual subscriber and the customer using the number.
However, the FCC stated that where a caller makes a call without knowledge of the number reassignment and with a reasonable basis to believe that it has valid consent to make the call, the caller may initiate one call after the reassignment as an opportunity to learn about the reassignment, but the caller must thereafter cease future calls to the new subscriber unless that new subscriber provides proper consent.
One-Time Follow-Up Text Message Allowed
The FCC found that a one-time text message that is sent immediately after a consumer requests a text does not violate the TCPA or FCC rules, as long as it is: (1) requested by the customer; (2) a one-time only message that is sent immediately in response to the request by the customer; and (3) contains nothing more than the information requested by the customer with no other marketing or advertising.
Financial and Healthcare Industry Exemptions
The FCC exempted from the prior express consent requirement certain calls from financial institutions to wireless numbers which specifically concern: (1) the prevention of fraudulent transactions or identity theft; (2) data security breaches; (3) actions a consumer may take to prevent identity theft after a data breach; and (4) calls regarding money transfers. These exemptions, however, are limited to no more than three calls over a three-day period from a single financial institution to the owner of the affected account. They are also subject to restrictions that require including an opt-out mechanism, identification of the calling party, and a prohibition on telemarketing, cross-marketing, solicitation, debt collection or advertising.
The FCC also granted an exemption from the prior express consent requirements for healthcare provider calls for which there is an “exigency” and which have a “healthcare treatment purpose.” As with the exemption for financial institutions, the FCC places various restrictions on calls from healthcare providers.
Use of Call-Blocking Technology
The FCC affirmed that nothing in the FTCA or FCC’s regulations prohibits carriers or VoIP providers from implementing call-blocking technology to assist consumers in stopping unwanted robocalls. To the extent that a call blocking technology may be flawed, the Commission requires that the provider offer adequate disclosures regarding, for example, the fact that the technology utilized to block calls may inadvertently block wanted calls.