FCC ISSUES LONG AWAITED DECLARATORY RULING INTERPRETING THE TELEPHONE CONSUMER PROTECTION ACT (TCPA)
The FCC also, not surprisingly, broadened the manner in which a consumer can revoke consent to receive non-telemarketing, non-advertising calls (i.e. calls from a debt collector). This decision echoes the trend that has been percolating throughout the federal courts. Pursuant to the FCC Ruling, consent can be revoked through “any reasonable means” and a caller is not permitted to limit the manner in which a consumer can revoke consent. As a result of this ruling, even where a consumer has provided prior consent in writing, this same consumer can later revoke consent orally to the caller.
The FCC’s Ruling rejected a number of petitions requesting a “safe harbor” from liability when the caller placed a call to a number it has previously received consent to call but, which has now been reassigned to a new consumer. In coming to this Ruling, the FCC determined that the TCPA requires the consent of the party who receives the call, not the intended recipient of the call. The FCC’s Ruling provides a caller one free call to determine that the number has been reassigned. After this one free call, the caller is deemed to have knowledge of the reassignment and must cease use of an autodialer or be held strictly liable for a TCPA violation. Unfortunately, in coming to this decision, the FCC rejected requests that this one free call actually connect to a consumer, so as to provide actual notice to the caller that the number has been reassigned. Accordingly, this one free call will offer no help to many debt collectors who unknowingly placed a call to a reassigned number where the recipient does not actually answer the phone or otherwise inform the caller of the reassignment.
Further regarding consent, the FCC also ruled that the transferring of a telephone number from a landline to a wireless service does not revoke consent. In this regard, a caller can simply rely on the previous express consent to the landline when contacting the same number now transferred to a wireless service.
While this ruling increases the number of potential TCPA violations, some observers have noted that the new one-call exception will make it more difficult for plaintiffs to obtain class certification in TCPA cases. This new defense to class certification has, of course, yet to be ruled on will be an interesting development to continue to monitor.