Recognizing the failure of the TCPA to curb the growth of unsolicited robocalls, Senators in November proposed two separate bills—the REAL PEACE Act and the TRACED Act–which both aim to give regulators more power to stop robocallers.
Democratic Senators Diane Feinstein (California), Richard Blumenthal, (Connecticut), and Amy Klobuchar, (Minnesota), introduced the Robocall Elimination at Last Protecting Every American Consumer’s Ears (“REAL PEACE”) Act, which would end the common carrier exemption that prevents the Federal Trade Commission (“FTC”) from regulating common carriers. The common carrier exemption was originally put in place because common carriers were heavily regulated by other agencies, including the Federal Communications Commission (“FCC”). In light of those regulations, the FTC Act’s catch-all protection against “unfair or deceptive acts or practices” was unnecessary. But as the regulations governing common carriers have been rolled back in recent years, criticism of the common carrier exemption has grown.
Removing the common carrier exemption would allow the FTC to go after the truly bad actors—the scammers and fraudsters who send mass robocalls to unsuspecting consumers and hide their true identity by “spoofing” their calls.
According to a press release issued by Senator Feinstein’s office on November 28, 2018, “[t]echnology advances have helped robocallers hide their true identity and location, making it easier for them to relentlessly target and harass Americans. Our bill will close an FTC loophole so we can finally put illegal robocallers out of business.” The press release estimates that illegal robocalls cost Americans up to $9.5 billion a year.
But wait, there’s more. A bi-partison collaboration called the Telephone Robocall Abuse Criminal Enforcement and Deterrence (TRACED) Act, also targets robocallers—in particular the worst offenders who purposely violate telemarketing rules—by giving regulators more power to go after them and punish them.
The bi-partison TRACED Act, which is sponsored by Republican South Dakota Senator John Thune and Democratic Massachusetts Senator Ed Markey, would, among other things require all service providers to adopt call authentication and call blocking technology. It would also broaden the FCC’s authority to levy civil penalties of up to $10,000 per call and would extend the window of time for the FCC to bring civil enforcement actions against violators, extending the statute of limitations from one year to three years.
In a November 16, 2018 press release, Senator Thune’s remarks underscored how the new law would target the worst offenders, the scammers, and the intentional violators. “The TRACED Act targets robocall scams and other intentional violations of telemarketing laws so that when authorities do catch violators, they can be held accountable,” said Senator Thune. “Existing civil penalty rules were designed to impose penalties on lawful telemarketers who make mistakes. This enforcement regime is totally inadequate for scam artists and we need do more to separate enforcement of carelessness and other mistakes from more sinister actors.”
We will continue to track this legislation and will provide updates as it progresses.
The Telephone Consumer Protection Act (TCPA) requires a caller to obtain prior express consent from a “called party.” This seems straightforward enough in a world where telephone numbers are permanently assigned to a consumer. In reality, however, over 35 million phone numbers are reassigned to a new subscriber every year. Can businesses argue that the consent they received sticks with the phone number? If not, how can they know when a number has been reassigned? This post outlines FCC and D.C. Circuit guidance on these issues, and offers an analysis of future solutions proposed by the FCC to mitigate potential TCPA liability stemming from calls placed to numbers that have been reassigned to a new subscriber.
Under the TCPA, businesses are required to obtain express consent from “called parties.” Until recently, the FCC had not defined “called party,” and there were debates as to whether it refers to the intended recipient of the call or the current subscriber. The FCC’s Declaratory Ruling from 2015 comprehensively addressed the question of whether a caller placing a call subject to the TCPA to a number reassigned from a consumer who gave consent is liable under the TCPA. In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991 (2015 Declaratory Ruling), 30 FCC Rcd. 7961, 7999 ¶ 71 (2015). The FCC clarified that the “called party” is the current subscriber and not the intended recipient of the call. Id. (“[T]he TCPA nowhere indicates that caller intent is relevant to the definition”). See also Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242, 1250-52 (11th Cir. 2014); Soppet v. Enhanced Recovery Co., 679 F.3d 637 (7th Cir. 2012). The D.C. Circuit recently upheld the FCC’s interpretation of the term in ACA International v. FCC, 885 F.3d 687 (D.C. Cir. 2018).
Defining “called party” as the current subscriber only scratches the surface of these issues and leaves businesses vulnerable to potential liability despite good faith efforts to obtain consent. The result is a great deal of uncertainty. For instance, does a caller who misdials or calls a number he has no reason to believe has been reassigned risk liability under the TCPA? How can diligent callers learn whether numbers have been reassigned?
The Old Safe Harbor
Faced with the possibility of a strict liability structure for calls made to reassigned numbers even in good faith, the FCC crafted a limited safe harbor to protect a single call or text message sent post-reassignment. The FCC explained that callers “should be able to initiate one call after reassignment as an additional opportunity to gain actual or constructive knowledge of the reassignment and cease future calls to the new subscriber.” 30 FCC Rcd. at 7999, 8009 ¶¶ 72, 90. Notably, while the D.C. Circuit upheld the FCC’s definition of “called party,” it invalidated this safe harbor (and the 2015 Declaratory Order’s treatment of reassigned numbers as a whole) in ACA International, finding that it was an “arbitrary and capricious” adoption of the FCC’s “reasonable reliance” approach to interpreting prior express consent. 885 F.3d at 692. Specifically, the Court asked, “why does a caller’s reasonable reliance on a previous subscriber’s consent necessarily cease to be reasonable once there has been a single, post-reassignment call?” Id. at 707.
Preventing Liability and Moving to a New Safe Harbor
There have been no subsequent cases or FCC policies interpreting the ACA International ruling or the Notice of Proposed Rulemaking. Therefore, given the uncertainty of the current climate, a caller must have practices and protocols to help identify reassigned numbers. In its 2015 Declaratory Order, the FCC listed a number of best practices to reduce the likelihood of a caller calling a reassigned number. Some examples of these practices include better protocols with customer service agents to maintain accurate contact information, proactively sending periodic requests to customers to update their contact information, and utilizing an autodialer’s ability to identify disconnected numbers using “triple tones.” 30 FCC Rcd. at 8007-08 ¶ 86. The FCC also suggested that parties could agree that the consenting party has an obligation to notify the caller of any number reassignment. Id. While a failure by the consenting party to satisfy his obligation would not preserve consent for TCPA purposes, the caller would have an opportunity to pursue other legal remedies against the consenting party for breaching their agreement. Id. at ¶ 86 n.302.
While these policies would help to reduce uncertainty with regard to reassigned numbers, they are not foolproof, and businesses risk potential liability despite good faith adherence to the FCC’s suggested practices. As a result, the FCC is exploring the adoption of a reassigned numbers database. Prior to the ACA International ruling, the FCC had issued a Second Notice of Inquiry to assess potential reassigned number database models. See 32 FCC Rcd. 6007, 6013 ¶¶ 16-19 (2017). In light of the D.C. Circuit’s endorsement, the database model, and invalidation of the safe harbor provision and reassignment rule, the FCC published a Second Further Notice of Proposed Rulemaking (FNPRM) on April 23, 2018. See Advanced Methods to Target and Eliminate Unlawful Robocalls, 83 Fed. Reg. 17631 (proposed Apr. 23, 2018); ACA International, 885 F.3d at 709 (stating that a database model has “greater potential to give full effect to the Commission’s principle of reasonable reliance.”).
The FNPRM focuses on two main issues: the creation of a new safe harbor and the implementation of one of three proposed database models. On the question of a safe harbor provision, the FCC asks how the ACA International decision might impact its ability to establish a safe harbor, and whether, and under what circumstances, a safe harbor should be adopted. 83 Fed. Reg. 17631 at ¶ 31. Specific questions posed by the FCC include how frequently a caller would need to check the database, and what kind of liability would be protected by this safe harbor.
With regard to the creation of a database, the FCC asks commentators to consider three models of reporting by voice service providers: 1) mandatory reporting to a single FCC database administered by a third party; 2) mandatory reporting to one or more commercially available data aggregators; or 3) voluntary reporting to one or more commercially available data aggregators. Id. at ¶ 32. The FNPRM focuses on three practical issues; namely, what information should be included and would be necessary for callers who choose to use a database, how to ensure that information is reported to the database, and how to make the information available to interested callers. Id. at ¶ 8. The comment period for the FNPRM closes June 7, 2018.
As TCPA cases continue to increase across the country, businesses making calls subject to the TCPA need to be aware of their potential liability and need to implement compliance policies as soon as possible that include policies around reassigned numbers. While the FCC is indicating that it intends to adopt a reassigned numbers database for callers to use to minimize their liability, significant practical questions remain with regard to both this potential prevention tool and to the possibility of a safe harbor. In this interim phase, that is from the time of the D.C. Circuit’s invalidation of the 2015 Declaratory Order’s treatment of reassigned numbers to the time when the FCC clarifies the issue by an updated Order, or by the announcement of a database, callers are advised to assess their current practices and to adopt as many preventative measures as possible to avoid potentially costly liability.
Earlier this year, the D.C. Circuit issued a significant decision in a challenge to the July 10, 2015 Federal Communication Commission (FCC) Declaratory Ruling and Order. See our post on the decision for more information. The D.C. Circuit struck down the FCC’s interpretation of the TCPA’s definition of “automatic telephone dialing system” and the FCC’s rules for liability for calls to “reassigned” telephone numbers.
Now, the FCC is seeking comments on significant TCPA issues, including those at issue in the D.C. Circuit decision. The FCC is seeking public comment on the following questions:
1. What constitutes an “automatic telephone dialing system”?
2. How should reassigned wireless numbers be treated under the TCPA, including how to define “called party”
3. How may a called party revoke prior express consent to receive robocalls?
4. Are contractors acting on behalf of federal, state, and local governments are “persons” under the TCPA?
Comments are due to the FCC by June 13 and reply comments are due by June 28. The FCC public notice can be found here.
The Telephone Consumer Protection Act (TCPA) prohibits the use of automated telephone calls absent “prior express consent” from the called party. Obtaining “express consent” in the first instance is not overly challenging. In a 1992 Order, the FCC stated that “persons who knowingly release their phone numbers have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary.” In re Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991, 7 F.C.C. Rcd. 8752, 8769 (Oct. 16, 1992). Since the 1992 Order, interpretations of “prior express consent” have narrowed slightly such that consent is effective only if it “relates to the same subject matter as is covered by the challenged calls or text messages.” Van Patten v. Vertical Fitness Group, LLC, 847 F.3d 1047, 1044-45 (9th Cir. 2017).
In the case of debtors and creditors, the FCC has interpreted “prior express consent” as being satisfied where the called party provides their wireless number in connection with an existing debt and the autodialed calls are made regarding that debt. The debtor need not have provided their number directly to the creditor; consent is satisfied if the creditor obtains the number from an intermediary. Moreover, the debtor does not have to provide the number for a particular purpose or specifically consent to autodialed calls. As long as the debtor consents to be called in connection with the debt, the “prior express consent” provision of the TCPA is satisfied. But, one may ask, is that consent eternal?
The TCPA is silent as to revocation of consent. However, a majority of courts have held that consumers may revoke their prior express consent. See, e.g., Van Patten, 847 F.3d at 1047; Gager v. Dell Financial Services, LLC, 727 F.3d 265 (3d Cir. 2013) (debtor could revoke consent under TCPA); Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242 (11th Cir. 2014) (same). Most recently, in Ginwright v. Exeter Finance Corp., 280 F. Supp. 3d 674 (D. Md. 2017), the District of Maryland denied a creditor’s motion for summary judgment, finding that consent was revocable, and that the question of whether consent had been revoked was an issue of fact for the jury. Each of these courts—whether considering debtors or consumers in general—based their decision on three main ideas. First, revocable consent is consistent with the purpose of the TCPA. The TCPA is a remedial statute that was “passed to protect consumers,” and any silence or ambiguity should be construed in favor of consumers. Second, the common law concept of “consent” provides that it may be withdrawn. Because the TCPA does not define consent, the common law meaning is instructive. Third, the FCC has ruled that under the TCPA, a consumer may revoke consent “at any time and through any reasonable means.” In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991 (2015 Declaratory Ruling), 30 FCC Rcd. 7961, 7996 ¶ 62 (2015). Significantly, the D.C. Circuit recently upheld the FCC’s ruling with respect to revoking consent. ACA International v. FCC, 885 F.3d 687, 709 (D.C. Cir. 2018).
But concluding that consent is revocable is only half the battle. If consent is revocable, when is it effectively revoked? What are “reasonable means” for revoking consent? The FCC has said that consent may be revoked in “any manner that clearly expresses a desire not to receive further messages[.]” 30 FCC Rcd. 7961, 7996 ¶ 63 (2015). The recent decision in Ginwright is instructive. In that case, the plaintiff listed his phone number on a credit application as part of a car purchase. The application specifically provided consent to debt collection calls. But, after his loan became overdue, the plaintiff claimed that he expressly demanded, on five separate calls, that the creditor “stop calling [his] phone.” The court found that where loan servicing records reflected that the debtor did not give affirmative consent to being called on multiple occasions, there was at least some support for his contention, and that if “a factfinder were to determine that Ginwright had revoked his consent, he could succeed on his TCPA … claims.” On the other hand, the Ginwright court denied the plaintiff’s motion to certify a class, finding that issues of consent and revocation of consent would be too individualized to resolve on a class-wide basis.
By contrast, in Van Patten, the Ninth Circuit upheld the district court’s grant of summary judgment, finding that the consumer did not revoke his prior express consent. There, the consumer argued that he revoked his consent to be contacted by a gym when he cancelled his gym membership. The court explained that “[r]evocation of consent must be clearly made and express a desire not to be called or texted,” and “no evidence in the record suggest[ed] that [the consumer] told Defendants to cease contacting him on his cell phone.” In short, the gym was not required to infer that the plaintiff’s cancellation of his gym membership was also meant to revoke his consent to receiving calls or texts from the gym.
It is clear from these decisions that the revocation must be expressly made. The means by which that express revocation is given, however, remains unclear. In ACA International v. FCC, 885 F.3d 687 (D.C. Cir. 2018), the court upheld the FCC’s broad “any-reasonable-means” standard. This leaves consumers with a wide range of options to effectively revoke consent—and leaves a potentially narrow path to summary judgment on the issue.
For businesses seeking to afford themselves more clarity and predictability when it comes to revocation of consent, there is at least one strategy available. While a business may not unilaterally impose a specific procedure for revoking consent, a business may enter into a bilateral agreement with a customer that includes an agreed-upon mechanism for revoking consent. As the D.C. Circuit observed in ACA International, nothing in the FCC’s rules prevents parties from agreeing upon revocation procedures. Id. at 710.
With the ball in the consumer’s court when it comes to revocation, it appears that callers will face heightened exposure to TCPA liability. With this in mind, callers would be wise to heed the D.C. Circuit’s advice and avoid potential violations “by making available clearly-defined and easy-to-use opt-out methods” or by contractually agreeing to specific revocation procedures up front.
Earlier this year, a petition
for declaratory ruling was filed with the Federal Communications Commission ("FCC") regarding voice messages delivered directly to a consumer's voicemail box. All About the Message, LLC seeks an FCC ruling that such direct drop voicemails do not constitute a "call" for purposes of the TCPA because such message does not cause the consumer to be charged for delivery.
This petition raises similar arguments to those made in a 2014 petition
that is still pending before the FCC, which argues that this type of message does not cause the type of disruption that the TCPA seeks to prevent.
The FCC has issued a public notice
for comments between May 18, 2017 and June 2, 2017.
Are robocalls made by the federal government governed by the Telephone Consumer Protection Act? The Federal Communications Commission just said “No,” in a pronouncement that has important implications for both the federal government and contractors acting on its behalf.
The FCC made its pronouncement in a July 5, 2016 Declaratory Ruling, holding that the TCPA “does not apply to calls made by or on behalf of the federal government in the conduct of official government business. . .” The FCC further made clear that the TCPA would not apply to contractors making calls on behalf of the federal government, “except when a call made by a contractor does not comply with the government’s instructions.”
The FCC based its decision on its determination that the federal government is not a “person” as defined by TCPA section 227(b)(1), and therefore was not subject to the TCPA. The FCC found support for this determination in the Supreme Court’s recent Campbell-Ewald Co. v. Gomez, 136 S.Ct. 663 (2016) ruling. In Campbell-Ewald, the plaintiff claimed a government contractor had violated the TCPA by sending automated text messages to recipients who had not agreed to receive them. The Court, applying sovereign immunity principles, held that the federal government and its agencies were not subject to the TCPA because “no statute lifts their immunity.” The Court further held that government contractors generally may be eligible for derivative immunity, but that the contractor at issue in the case was not, because the contractor exceeded its authority by sending messages that the government had not authorized it to send.
In its declaratory ruling, the FCC noted that subjecting the federal government to the TCPA would “significantly constrain the government’s ability to communicate with its citizens” and to gather data necessary to make informed public policy decisions. The FCC also found that allowing the federal government to use autodialers without consent would foster public safety and save resources by allowing the government to use the most cost-efficient method of communicating with the public. According to the FCC, “if the TCPA were interpreted to forbid third-party contractors from making autodialed or artificial or prerecorded-voice calls on behalf of the government, then, as a practical matter, it would be difficult (and in some cases impossible) for the government to engage in important activities on behalf of the public.”
With respect to contractors, the FCC sought to follow principles of agency and the Campbell-Ewald ruling. The FCC stated that a contractor who places calls on behalf of the federal government will be exempt from the TCPA “when the contractor has been validly authorized to act as the government’s agent,” is “acting within the scope of its contractual relationship with the government,” and “the government has delegated to the contractor its prerogative” to make calls to “communicate with its citizens.”
The FCC’s ruling provides welcome clarity to the TCPA’s scope, particularly as to its application to contractors. The precise contours of its application remain to be seen, and it may well be that disputes arise as to whether a contractor was (or wasn’t) acting within the scope of its agency when it made particular calls.
On May 6, 2016, the FCC released a notice of proposed rulemaking and is now seeking public comment on implementation of the 2015 bipartisan Budget Act (The “Act”). The Act exempts autodialed calls “made solely to collect a debt owned to or guaranteed by the United States” from the TCPA’s prior expressed consent requirements.
The Act allows the FCC to limit the frequency and duration of these calls and directs the FCC to issue regulations on the implementations of the Act’s TCPA amendments by August 2, 2016.
The FCC’s proposed rules would allow government debt collectors to robocall an individual three times per month to collect a debt. The rules would also make it so that the collection calls could only be made after a borrower becomes late on a payment, however, calls could be made to notify debtors about plans to keep them from defaulting on their loans.
Among other things, the FCC is seeking comment on questions such as which calls are covered by the phrase “solely to collect” and how the Commission should restrict the number and duration of such calls; the meaning of “owed to or guaranteed by the United States” and what is a debt owed to the United States; whether a person the caller believes to be the debtor but is not, are covered by the exception; and who may make the calls to debtors owing a debt to the United States.
The FCC also seeks comment on questions such as: should the Commission place limits on a covered caller using or transferring information obtained during covered calls in order to collect other debts or to address other matters; should the FCC encourage debtors hearing from live agents to discuss a debt and potential servicing options; are “servicing calls” considered debt collection calls and therefore covered under the exception; and how should the covered calls be synchronized with other laws and rules that more generally govern debt collection.
Comments on the proposed rule changes are due by June 6, 2016, and reply comments are due by June 21, 2016.
In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991 Docket No 02-278.
On March 31 2016, the United States District Court for the Northern District of California dismissed a TCPA putative class action lawsuit because the alleged calls were made to collect a debt owed to or guaranteed by the United States government.
The lawsuit, filed in February 2014 by Neil Silver (“Silver”), alleged that the Pennsylvania Higher Education Assistance Agency (PHEAA) placed unsolicited phone calls to his cellphone in an effort to collect a student debt. Silver also claimed that the calls were made using an autodialer and without his consent.
In November 2015, Congress passed the Omnibus Budget Reconciliation Act of 2016 (the “2016 Budget Act”). The 2016 Budget Act amended the TCPA by providing and exemption for all calls made solely to collect a debt owed or guaranteed by the United States (the “amendment”.
As a result of the amendment to the TCPA, PHEAA filed a motion for summary judgment arguing that the amendment barred Silver’s TCPA claims. Silver objected, arguing that allowing PHEAA’s motion for summary judgment would be an unfair retroactive application of the statute. Judge Phyllis Hamilton rejected Silver’s argument.
In her opinion, Judge Hamilton granted PHEAA’s motion, concluding that the amendment does in fact exempt the alleged calls and “because the retroactivity issue is dispositive, the court need not reach the” issues of consent or whether the calls were placed using an autodialer.
To decide whether Silver’s claims were barred under the amendment, Judge Hamilton had to determine whether the statute would impair the right’s Silver had “when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transaction already completed.”
Judge Hamilton found the TCPA amendment did not increase anyone’s liability for past conduct, it decreased it by creating an exception for telephone calls made to collect debt owed or guaranteed by the United States. Furthermore, rather than imposing new duties, the amendment eliminated certain duties. Finally, Judge Hamilton said although Silver’s right to bring a lawsuit was impaired this alone was insufficient.
This decision is likely to be used as precedential authority in any upcoming TCPA case against a Student Loan Collector acting on behalf of the United States. It also offers persuasive authority for lawyers who argue that the TCPA amendment applies now even though the FCC has not issued regulations in response to the 2016 Budget Act.
The case is Silver v. Pennsylvania higher Education Assistance Agency, Case No. 14-cv-0652-PJH in the United States District Court for the Northern District of California.
On March 31, 2016, the Federal Communications Commission (“FCC”) released a public notice seeking comment on a petition for declaratory ruling filed by Todd C. Bank (“Bank”). Bank’s petition seeks to clarify whether a telephone line in a home, but used for business purposes, can be considered a “residential” line under the TCPA.
Bank argues in his petition that Section 227(b)(1)(B) of the TCPA, which generally prohibits robocalls to residential telephone lines, should restrict calls from an autodialer to residential telephone lines that are also used for business purposes. In support of his petition, Bank asserts that creating a bright line test prohibiting all robocalls to telephone lines that are registered with a service provider as residential will serve the public interest by limiting calls to individuals who work at home, and reduce uncertainty for telemarketers trying to comply with the TCPA.
In its corresponding public notice, the FCC seeks comments on whether it should (1) “establish such a bright line test for identifying a ‘residential line’ under the prohibition against unconsented-to calls using an artificial or prerecorded voice,” (2) adopt some other test to identify telephone lines used for both residential and business purposes, or (3) create a “multifactor analysis” for determining whether a phone line is “residential” for purposes of the TCPA’s prohibition.
The resolution of this matter could have significant implications for telemarketers, who as a result may have to further screen potential calls to avoid TCPA liability. Comments on the petition are due by May 2, 2016 and reply comments are due by May 17, 2016.
The Matter is In the Matter of: Todd C. Bank, CG Docket No. 02-278, before the Federal Communications Commission.
On March 9, 2016, the FCC released a series of letters to members of Congress dated February 25, 2016, providing more details of proposed limits to the TCPA following last year’s bipartisan budget deal.
Section 301 of last year’s budget deal included a provision that exempted the federal government from TCPA provisions that prevent businesses from using autodialers and/or artificial prerecorded messages to contact a person’s cellphone, as long as the government’s calls are made solely for the purposes of collecting government-owed debt—a provision opponents argued was directed at people with student loan debt.
According to his letter to lawmakers, Chairman Tom Wheeler believes “the draft [Notice of Proposed Rulemaking (“NPRM”)] includes clear, pro-consumer restrictions on the type and number of calls a federal creditor may place to recover a delinquent debt, even when those calls go unanswered.”
Specifically, under the NPRM, a call made from an autodialer can only be placed to the person who holds the debt, not a friend or family member. Moreover, it limits the government to three calls per person per month. The NPRM also prevents the government from making calls that remind people they are close to becoming late in their payments and requires the government to inform the debtor of their right to have the calls stopped.
Thus, according to Chairman Wheeler, the NPRM is being designed to help prevent harassment by government debt collectors making calls using and autodialer and/or artificial prerecorded voice message in accordance with last year’s bipartisan budget deal. The FCC has until August 2, 2016, to implement its proposals.