FCC Ruling Potentially Expands Scope of TCPA

PhoneOn June 18, 2015, the Federal Communications Commission (“FCC” or the “Commission”) issued a package of declaratory rulings (“FCC 15-72”) related to telemarketing.  Although FCC 15-72 has yet to be officially released, the Commission indicated the measure is significant, particularly in the Telephone Consumer Protection Act (“TCPA”) realm.  A federal law that limits particular forms of communications to individuals, the TCPA has become a favorite of plaintiffs’ counsel across the country.

FCC 15-72 will address several aspects of the TCPA the Commission has already addressed.  For instance, the FCC’s June 18 press release indicates that FCC 15-72 will the ability of consumers to opt out of receiving “robocalls and robotexts.”  The ruling will also reiterate the Commission’s definition of an autodialer as “any technology with the capacity to dial random or sequential numbers,” and will include systems that dial using lists of numbers, and will reaffirm that both text messages and internet-to-phone text messages constitute calls under the statute.

The FCC also took action that has the potential to significantly expand the scope of TCPA litigation.  Couching the change as closing a loophole, the FCC ruled that “[i]f a phone number has been reassigned, companies must stop calling the number after one call.”  The rule appears to place within the scope of the TCPA calls made to numbers for which an entity had consent once that number has been reassigned.  The rule appears to apply whether the individual to whom the number was reassigned answers the call or not.  It is unclear what measures companies are required to take to determine that particular telephone numbers have been reassigned.

FCC 15-72 also addresses the issue of third-party consent in the context of smartphone apps.  The Commission has ruled that simply being listed as a contact in the phone of an individual who downloads an app does not amount to consent to being contacted by the app itself.  Given the popularity of apps with social-media components, this rule could also have wide-reaching impact.

The FCC noted that its actions were designed to “clos[e] loopholes and strengthen[] consumer protections already on the books,” but its real impact remains to be seen.