Privacy & Information Security Law Blog

On July 10, 2015, the Federal Communications Commission (“FCC”) released a Declaratory Ruling and Order that provides guidance with respect to several sections of the Telephone Consumer Protection Act (“TCPA”). The Declaratory Ruling and Order responds to 21 separate requests from industry, government and others seeking clarifications regarding the TCPA and related FCC rules.

The majority of the clarifications relate to the sending of automated calls and text messages to consumers. For example, a few organizations requested clarification regarding the scope of the term “autodialer,” as many restrictions in the TCPA are triggered only if the sender used an autodialer to initiate a telephone call or text message. The Declaratory Ruling and Order states that Congress “intended a broad definition of autodialer,” and that equipment can be considered an autodialer if it has the capacity to dial random or sequential numbers but lacks the present ability to do so. Other highlights of the Declaratory Ruling and Order are provided below.

• The FCC reviews the totality of the attendant circumstances regarding a particular call or text to determine who “initiated” or “made” the call or text for the purposes of the TCPA. The totality of the circumstances should be examined to determine (1) “who took the steps necessary to physically place the call;” and (2) “whether another person or entity was so involved in placing the call as to be deemed to have initiated it.”
• Recipients of calls may “revoke consent at any time” to receive autodialed or prerecorded calls or text messages using any reasonable means.
• Merely having another person’s wireless number in a contact list on a phone, by itself, does not demonstrate consent to send that person autodialed or prerecorded calls or text messages.
• The TCPA requires the consent of the “current subscriber” of the call or text message, not the consent of the intended recipient. Accordingly, if an organization obtained consent from a consumer to send him or her autodialed or prerecorded calls or texts, and the consumer’s number is later reassigned to another consumer, the organization does not have consent to make autodialed or prerecorded calls or texts to the second consumer even if the organization intended to make the call or text to the original consumer. The Declaratory Ruling and Order states, however, that an organization may not be liable under the TCPA for the first call to the second consumer if the organization does not have knowledge of the reassignment.
• One-time text messages “sent in response to a consumer’s request for information” do not violate the TCPA if (1) the text message is requested by the consumer, (2) the consumer receives only one message, and (3) the message does not contain information not requested by the consumer.

Read the full Declaratory Ruling and Order.