Final Rule Summary

Telephone Consumer Protection Act – FCC Rules
September 2015

In July, the Federal Communications Commission (FCC) issued Declaratory Ruling and Order FCC 15-72 interpreting the Telephone Consumer Protective Act (TCPA). See 47 U.S.C. § 227.

The TCPA generally prohibits unsolicited calls and texts to wireless device made by auto or “robo” dialers (automatic telephone dialing systems aka “ATDS”). The ruling came in response to a request from banks for an exception to the rule that would allow them to notify customers of potential fraud or cyber breaches.

While carving out a very limited exception for breach/fraud notifications, the FCC also expanded the breadth of the TCPA’s limitations in a manner which may render the exceptions moot.

The ruling may be found at https://apps.fcc.gov/edocs_public/attachmatch/FCC-15-72A1.pdf. These new interpretations are effective immediately.

Background

The TCPA prohibits a caller from using an auto-dialer or prerecorded message to make a non-emergency call, or text message, to a wireless phone unless the caller has obtained the consumer’s prior express consent. The rule contains various consent standards depending on what type of call the caller wishes to place. For telemarketing calls to any kind of phone, the consumer must give express prior written consent.

New Changes

Changes made by the FCC include:

  • Telephone service providers can offer ATDS call blocking technologies to consumers where previously that authority was unclear
  • Consumers now have the right to revoke their consent to receive calls and text messages sent from auto-dialers in any reasonable way at any time
  • No “inherited consent” - callers must cease calling a reassigned wireless and wired telephone number after a single call regardless of whether the caller knew the number had been reassigned or not
  • Text messages are calls
  • Consent must come from the called party, not the intended recipient of the call

As noted above, the TCPA prohibits the use of ATDS to call wireless phones and to leave prerecorded telemarketing messages on landlines without consent. An ATDS is defined as “equipment which has the capacity to (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.”

  • This definition includes devices with a future capacity to dial randomly, sequentially and even from a list loaded into the dialer. This could mean smart phones.

Exceptions
The rule does contain exceptions to the prohibitions for certain, limited, “exigent circumstances.” The “exigent circumstance” exceptions include free calls to wireless devices to warn consumers of a potential breach of personal information or the potential for other fraud. Calls may also be made in the process of confirming/completing a wire transfer. However, consumers will still have the right to opt-out of these types of calls/texts.

In addition, the exception for such calls are subject to the following limitations and conditions:

  • Calls/texts may only be to wireless number provided by the customer
  • Calls/texts must state date and contact information of the institution
  • Calls/texts must be “strictly limited “ to the excepted purpose
  • The consumer must be given opt out information
  • Opt out requests must be honored immediately
  • Calls must be limited to 60 seconds or less and texts to 160 characters
  • Credit unions/banks can initiate no more than 3 messages per event over a 3 day period
  • Calls/texts may not be charged to recipients, including costing recipients plan minutes

Penalties
Violations of the TCPA can carry penalties including fines of up to $1,500.00 per violation.