FCC, Federal Government, Privacy, Technology

FCC Clarifies (?) TCPA Autodialing Requirements

Take-home message: Do as we say, NOT as we do!

By CHENG-YI LIU  
on

Ed note: This post originally appeared on CommLawBlog.

Take-home message: Do as we say, NOT as we do! 

Pursuant to “clarifications” provided in a recent FCC Declaratory Ruling on the Telephone Consumer Protection Act (TCPA), the FCC and FTC are both in violation of the TCPA’s prohibition against making autodialed calls to a consumer’s wireless phone without prior express consent. Whose phone? You probably guessed it – I am an unfortunate victim of the government’s illegal robocalling disruptions.

But no need to feel bad for me, this is actually quite a windfall. By my count, the FCC and FTC now owe me at least $7,500 in statutory damages for their combined TCPA violations (and triple that amount, or $22,500, if the violations were committed “willfully or knowingly”).

How can this be, you ask? I’ll explain later…

First, let’s go over some background info about the TCPA and cover some of the “clarifications” provided in the FCC’s Declaratory Ruling.

(NOTE: We will cover only some of the major aspects of the Declaratory Ruling and not the myriad of issues and situation-specific details which it tries to address, details culled from 21 separately filed requests for clarification or other action. Our discussion of the TCPA will also be limited specifically to issues surrounding “autodialers” and wireless phones. But keep in mind that there are other requirements that apply to telemarketing in general, and to traditional phone lines and fax machines.)

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We’ll start with some TCPA basics.

The TCPA, as written by Congress back in 1991, defines “automatic telephone dialing system” (what we refer to as “autodialers” for short) 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.” Take note of the word “capacity,” as that will be important later.

Under the TCPA, and as explained in the Declaratory Ruling:

if a caller uses an autodialer or prerecorded message to make a non-emergency call to a wireless phone, the caller must have obtained the consumer’s prior express consent or face liability for violating the TCPA. Prior express consent for these calls must be in writing if the message is telemarketing, but can be either oral or written if the call is informational.

Also, don’t forget that the FCC considers text messages to be “calls” for purposes of the TCPA. In other words, all calls or texts to a wireless phone that are made using what qualifies as an autodialer require the called party’s prior express consent. If the call or text is marketing-related, then the prior express consent has to be in writing.

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If you violate the TCPA’s prohibitions on making calls using an autodialer without the called party’s prior express consent, you can be liable for $500 in statutory damages (per violation!). The damages can also triple if your violations are found to be committed willfully or knowingly.

So far, all this should be old news.

Now, there’s been a lot of debate over what constitutes an autodialer. If you read just the TCPA’s definition of autodialer, you might surmise that Congress simply intended to restrict the use of devices that are being used to indiscriminately blast out calls to arbitrary numbers conjured from thin air. The FCC has previously found that “the basic functions of an autodialer are to ‘dial numbers without human intervention’ and to ‘dial thousands of numbers in a short period of time.’” The FCC has also said that, although some equipment might have the “capacity” to function as an autodialer, “there must be more than a theoretical potential that the equipment could be modified to satisfy the ‘autodialer’ definition.”

A reasonable person might take this to mean that, if you have a piece of equipment that might be modified to be an autodialer, but you haven’t modified it, then it isn’t one. It would also make sense that if you have an autodialer, but rather than using it as such, you’re using it in the old fashioned way (punching in the numbers like a regular Joe Shmoe), then you’re not actually doing anything that runs afoul of the TCPA. In other words, if you’re not presently taking advantage of your gear’s autodialer capabilities, or if your gear doesn’t have those capabilities to start off with, you’re not going to run afoul of the TCPA.

Not so, according to the FCC’s Declaratory Ruling:

the TCPA’s use of “capacity” does not exempt equipment that lacks the “present ability” to dial randomly or sequentially. …. Hence, any equipment that has the requisite “capacity” is an autodialer and is therefore subject to the TCPA.

Moreover, even if it takes combining your equipment with equipment, software or service provided by someone else to have autodialer “capacity,” you could still be operating an autodialer. So anything can be an autodialer if it has the “future ability” to dial randomly or sequentially? Wait, hasn’t the FCC heard that “the future is LIMITLESS?”

The Declaratory Ruling even goes so far as to imply that smart phones can be considered autodialers. To make us feel better, the FCC concedes that nobody has yet complained about being autodialed by smart phones. (Butt dialing, on the other hand, has resulted in some serious complaints.)

But notwithstanding that less than convincing assurance, the Declaratory Ruling says what it says, so for all practical purposes, it may be safer (for now) to consider any piece of modern equipment to qualify as an autodialer under the TCPA. At least we can be safe in knowing that as long as we have prior express consent we can use our autodialers without fear of TCPA liability, right?

Maybe not.

Consent can be revoked. And according to the Declaratory Ruling, revocation of consent can be accomplished in just about any way a consumer deems fit.

The FCC “clarifies” that one way a consumer can revoke consent is simply by changing his or her number. The consumer may not bother to tell you about the change (or what the change is supposed to mean), but you’re expected to know to stop making autodialed calls to that number regardless. In such cases the Declaratory Ruling gives you an out … sort of. You have one call to a wireless number to ascertain that the number no longer belongs to the party who had given you prior express consent to call to that number. Even if the person you reach on the other line says nothing and hangs up, or the call goes to voicemail, or the call gets disconnected, or they PRETEND they are the right person … you’re just supposed to know it’s the wrong person.

Better start consulting Miss Cleo before you make any calls (but don’t autodial her)!

But consumers switching phone numbers like undergarments present only one consent-revocation problem. You still have to deal with how to track whether consent has been revoked in other ways. The Declaratory Ruling clarifies that “consumers may revoke consent through any reasonable means.” This means that consumers can revoke their consent orally or in writing. They can call, email, text, fax, whisper, scream, shout, twist and shout, carrier pigeon, or mime their revocation to you and, presumably, you have to accept it.

OK, so the Declaratory Ruling does say that the FCC will consider the “totality of the facts and circumstances” in determining whether revocation was effectively communicated. But this includes whether “the consumer had a reasonable expectation” that the revocation was communicated. So, what if a consumer, in response to your autodialed text message, thinks he has texted back “UNSUBSCRIBE” but, due to fat finger syndrome or the autocorrect feature on his smart phone, actually sends “UNSUBSIDIZED”? Is the revocation effective? (This is a real world example, as we shall see below.)

Importantly, according to the FCC, folks using autodialers to call consumers are not permitted to designate an exclusive way for consumers to revoke consent. And the FCC warns that “callers may not deliberately design systems or operations in ways that make it difficult or impossible to effectuate revocations.”

There are many other issues discussed in the Declaratory Ruling, but the last we’re going to cover here is what the FCC refers to as “Internet-to-phone text messages.” In a nutshell, this involves reaching a consumer via text message by either (a) emailing the consumer’s phone number coupled with a domain name designated by the carrier (e.g., 5555555@users.carrier.com) or (b) allowing messages to be delivered via text by entering it through an Internet web portal.

Of course, under the Declaratory Ruling, Internet-to-phone text messaging is considered a “call” for TCPA purposes. Moreover, the technology used to send such messaging is an autodialer for TCPA purposes because, presumably, any email system can be configured to automatically send these types of messages to thousands of randomly or sequentially generated addresses/numbers. So the requirements that apply to regular autodialed calls and texts also apply to Internet-to-phone text messages: you have to get prior express consent for these types of messages, and consumers can revoke consent in any reasonable manner. Maybe it’s time to stop emailing those cat videos to your entire contact list?

Now that you’re up to speed on some of the TCPA “clarifications” provided in the Declaratory Ruling, you’ve probably already guessed how the FCC and FTC might be violating the TCPA. In case you haven’t, here’s the scoop.

The FCC and FTC maintain automated distribution lists for folks to receive regular email updates about what’s going on. Are these subject to the TCPA’s autodialer requirements? Let’s find out.

Could the systems used by the FCC and FTC be considered autodialers?

I imagine so. They can surely send messages to a large number of people. Even if they don’t presently have the capacity to send messages to random or sequential lists of numbers, I’m sure there is a simple app that can be installed to make that possible.

Do these systems even have the ability to make calls or, in other words, send Internet-to-phone text messages?

Yup, sure do! I subscribed using my Internet-to-phone email address and promptly received some confirmation messages via text. By subscribing, I gave my prior express consent to receive these messages. So I was all set up to receive autodialed Internet-to-phone text messages from the FCC and FTC and, sure enough, the messages start rolling in.

But after receiving a couple of these messages, I realize getting these message isn’t as useful as I thought it would be. In fact, it’s rather annoying. I guess I better revoke my consent. Surely the FCC, proponent of the revocation-can-be-accomplished-by-any-reasonable-means principle, will make this easy for me.

I figured I’d just text back the simple message “STOP” to both the FCC and FTC. After all, this is the industry standard for revoking consent to text message campaigns, is it not? Seems pretty reasonable.

Here are two screen grabs, one showing the FCC’s confirmation, the second showing the FCC’s first text to me, and my “STOP” message back to them:

And here’s a grab showing the same on the FTC side:

Guess what? It didn’t work. The messages kept coming.

OK, fine. Even though the Declaratory Ruling technically extended the “one additional call” exception only to situations involving consumers who have changed numbers, I decide I should give them a one-time pass. So I try again, this time sending the message “CANCEL”. Surely that will get my revocation across. No such luck. The messages keep coming, both from the FCC:

And from the FTC:

Maybe I need to use “UNSUBSCRIBE” for the FCC? That’s what I meant to do in my next attempt but, when I checked back after receiving another message, I realized I had texted “UNSUBSIDIZED” instead. (See screen grab, above.)

Darn! Maybe I need to use something more forceful, with complete sentences and some context. Let’s try “UNSUBSCRIBE. THIS IS BEING SENT TO MY MOBILE PHONE VIA TEXT. I REVOKE MY CONSENT” to the FCC:

And for the FTC, let’s try something a bit more terse, but still straightforward, like “I REVOKE MY CONSENT”:

That doesn’t work, either. Neither does “UNSUBSCRIBE PLEASE” or “I DON’T WANT ANY MORE MESSAGES”:

I think it’s clear now: Both the FCC and FTC are going to force me to revoke my consent using only the specific revocation methods that they have designated.

How inconvenient, not to mention inconsistent with the FCC’s Declaratory Ruling.

On the bright side, the FCC and FTC owe me at least $7,500 in statutory TCPA damages because I’ve now received at least 15 autodialed Internet-to-phone text messages after I revoked my consent to receive these messages through what I thought to be reasonable means.

And there’s more good news. As those familiar with the FCC’s enforcement policies can tell you, in the FCC’s view, you commit a violation “willfully or knowingly” simply by committing the violation more than once. So, under the TCPA, I should actually be eligible for triple the damages, $22,500. That’s great, because my wife’s been bugging me to buy a new car!

What’s the takeaway from all this?

One can be found in Commissioner Pai’s dissent to the Declaratory Ruling:

Rather than focus on the illegal telemarketing calls that consumers really care about, the Order twists the law’s words even further to target useful communications between legitimate businesses and their customers. This Order will make abuse of the TCPA much, much easier. And the primary beneficiaries will be trial lawyers, not the American public.

There are already TCPA lawsuits out the wazoo. The Declaratory Ruling provides a goldmine of new schemes that can be employed in even more lawsuits. I doubt many of these lawsuits will actually serve to protect consumers from harm; it’s all about the money.

Another takeaway is that the Declaratory Ruling establishes unrealistic expectations for businesses that are legitimately trying to communicate with customers. Even the FCC and the FTC aren’t able to comply with the “clarified” obligations the FCC has established. Perhaps this is because, as government agencies (thanks to this thing called sovereign immunity), they probably don’t have to concern themselves with TCPA liability. If the FCC were forced to defend itself in a few TCPA lawsuits, it might change its mind on some of the positions taken in the Declaratory Ruling.

Finally, for those businesses that do communicate with consumers using any modern technology, proceed with extreme caution. The Declaratory Ruling is here to stay … for now.

[Blogmeister’s Note: The opinions expressed in this article are those of the author alone.]

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