YOU CAN DO SOMETHING ABOUT THEM AS NEW FCC RULINGS
STRENGTHEN PROTECTIONS FOR CONSUMERS
On June 18, 2015, the Federal Communications Commission adopted a package of rulings designed to protect consumers against unwanted robocalls, spam texts, and telemarketing calls. Through the rulings, the FCC affirmed consumers’ rights to control the calls they receive and provide much needed clarity for consumers and businesses.
The FCC described the rulings as one of the most significant FCC consumer protection actions since it established the Do-Not-Call Registry with the FTC in 2003. The rulings were based on an earlier proposal by FCC Chairman Tom Wheeler. In response to almost two dozen petitions that sought clarity on how the FCC enforces the Telephone Consumer Protection Act (TCPA), Wheeler proposed a set of actions designed to close loopholes and strengthen consumer protections already on the books.
The new rulings primarily concern unwanted calls and texts to wireless phones. Unwanted calls and texts are the number one consumer complaint to the FCC. According to the FCC, it receives thousands of complaints every month about telemarketing and robocalls, and received more than 215,000 TCPA claims in 2014 alone.
According to an FCC press release, the new rulings provide clarity in the following areas:
Empowering consumers to say ‘stop’ — Consumers have the right to revoke their consent to receive telemarketing calls and robotexts in any reasonable way at any time.
Making Clear That Reassigned Numbers Aren’t Loopholes – A consumer who transfers service often gets assigned a new number that once belonged to someone else. Telemarketers take advantage of that by sending robocalls or telemarketing calls to the new subscriber based on the previous subscriber’s consent. The new rulings clarify that callers must stop calling the number after one call.
Third Party Consent – A consumer whose name is in the contacts list of an acquaintance’s phone does not consent to receive robocalls or telemarkting calls from third party applications downloaded by the acquaintance.
Greenlighting ‘Do Not Disturb’ Technology – Phone and wireless carriers will be permitted to develop and offer robocall-blocking technology.
Affirming the Definition of an Autodialer – Autodialer is defined in the TCPA as any technology that has the capacity to dial random or sequential numbers. This definition ensures that robocallers cannot skirt consumer consent requirements through changes in calling technology or by calling numbers from a list.
Text Messages As Calls – The rulings reaffirm that consumers are entitled to the same consent-based protections for texts as they are for voice calls to wireless numbers.
Internet-to-Phone Messages – The rulings confirm that equipment used to send Internet-to-phone text messages is an autodialer, so the caller must have consumer consent before calling.
Very Limited and Specific Exemptions for Urgent Circumstances – Certain free calls or texts such as to alert consumers to possible fraud on their bank accounts or remind them of important medication refills, among other things, are allowed without prior consent, but other types of financial or healthcare calls, such as marketing or debt collection calls are not permitted. Also, consumers have the right to opt-out from these permitted calls and texts at any time.
It is hard to dispute that the new rulings eliminate uncertainty in the existing rules about what a business can and can’t do. Notwithstanding, Commissioner Wheeler’s proposal faced strong opposition from anti-consumer forces who claimed that the proposal didn’t do enough to protect business interests, or would likely fuel new lawsuits. However, as certain experts in the field point out, the new rules actually help businesses by eliminating grey areas.
The new rulings were passed by a 3 to 2 vote along party lines. The two Republican members of the FCC voted against them, whereas the three Democrats voted in favor. The U.S. Chamber of Commerce and other groups opposed the Commissioners proposal, whereas it received support from pro-consumer organizations and, among others, Senators Edward Markey, Charles Schumer, Ron Wyden, Claire McCaskill, Elizabeth Warren, Richard Blumenthal, Amy Klobuchar, Tammy Baldwin, Jeff Merkley, and Al Franken who wrote a letter urging the FCC not to weaken consumer protections in this area.
The TCPA provides very clear penalties for violations of the rules. It allows affected consumers to bring a private lawsuit which a plaintiff may recover the greater of actual monetary loss or $500 per violation. A court may treble (triple) the amount of damages upon a finding of a “willful or knowing” violation, and claims can be brought individually or as a class action.
If you have been the recipient of unauthorized robocalls, spam texts, or telemarketing calls and wish to discuss what actions you might take, please contact Paul Scarlato or Mark Goldman of Goldman Scarlato & Penny, P.C. at [email protected] or [email protected].
