A Look Into the FCC’s Recent TCPA Declaration –
and What are the Next Steps?
By Karl Koster, Chief Intellectual Property and Compliance Counsel, Noble Systems
While the number of monthly complaints dropped by about 40 percent
following the Federal Communication Commission’s (FCC) 2013 Order requiring
written consent when calling mobile numbers, complaints regarding unwanted
wireless marketing calls or messages persists to be one of the top consumer
concerns, The number of Telephone Consumer Protection Act (TCPA) related
lawsuits – and resulting fines to businesses – also continues to grow.
In response, interested parties have sought clarification from the FCC on an
array of issues regarding the TCPA. In June 2015, the Commission issued an
Order to resolve 21 separate clarification or action requests, and indicated
that the ruling is designed to protect the commercial freedoms of speech and
trade, while balancing the privacy of individuals and permitting legitimate
telemarketing practices. The FCC’s guiding principle can be summarized as
follows: “…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.”
On Friday, July 10, 2015, the FCC released the long-awaited text of the TCPA
Order. The main issues addressed in the Order included:
Autodialer Definition
A key issue that the industry was seeking clarification pertained to the
scope of the term “capacity” in the FCC’s definition of an “autodialer”.
The FCC has taken a broad interpretation and sided on the “potential
capacity” interpretation, more specifically referring it to as a “potential
ability.” This means that “equipment can possess the requisite ‘capacity’
to satisfy the statutory definition of [an] ‘autodialer’ even if, for example,
it requires the addition of software to actually perform the functions
described in the definition.” Thus, equipment need not actually have a
random or sequential number generator, but merely has to have the
potential ability to execute software that could perform this capability.
As a result of this sweeping interpretation, virtually all computer
controlled devices that can dial a call are now regulated as autodialers.
This includes by the FCC’s own admission, smart phones, tablets, and
computers, which could have dialing software loaded. However, the FCC
has indicated that the interpretation of “capacity” is not unbounded, as
it would not include for example, a rotary telephone, since modifying a
rotary telephone would require more than a theoretical potential ability
to make it an autodialer. The FCC’s own statements admit that they do
not provide such clarity as to exactly what is or is not an autodialer, or as
to whether human intervention in originating a call is determinative as to
whether the equipment is an autodialer.
Dialing Reassigned Wireless Numbers
As a routine practice, wireless numbers that are no longer in use or have
lapsed can be reassigned to a new wireless subscriber; any consent
obtained to contact the owner ends at the time of the transfer. The FCC
clarified that no liability occurs for the first call made to the reassigned
wireless number. Thereafter, the caller is presumed to have constructive
notice, if not actual notice, that the number dialed has been reassigned.
This liability only applies to autodialers, and can be avoided by using a
manual dial.
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Letter from the CEO
The 3 C’s of the TCPA –
Cell Phones, Consent &
Compliance
Meeting and talking with our clients
James K Noble, Jr
is one of the most rewarding parts of
my job. Sharing our vision with our users, and learning
what we can do to help make them more successful,
is vital to maintaining strong business relationships.
These conversations take place in a variety of
venues, including one-on-one meetings, our Select
Noble Users Group (SNUG) Conferences, the Select
Noble Advisory Panel (SNAP) quarterly summits, and
our new Customer Open Feedback Forum (COFFee)
monthly roundtables.
In recent discussions, “What can we do about
Compliance?” is almost always on the agenda. This
summer’s FCC ruling on the TCPA has compounded
what is already a complicated business challenge.
Noble’s offering of Compliance-Ready Solutions
provide innovative, state of the art toolsets to help
you manage your operations in accordance with
government regulations around the world.
The use of some basic best practices can aid
you in minimizing risk for the TCPA Wireless Dialing
restrictions. First, contact lists should always be
scrubbed to identify wireless numbers (Noble has
partners that offer such services). Second, consent
should be obtained and verified when dialing any
wireless numbers. Third, consent should be retained
in a manner that allows it to be produced, Finally,
a manual dialing system needs to be in place for
wireless numbers (Noble’s patented TCPA Wireless
Compliance Appliance provides this functionality).
As your communications technology partner,
Noble is committed to helping you get answers
to compliance questions and providing solu tions
that allow you to minimize risk without sacrificing
productivity. We have actively participated in
the FCC’s petition process, hoping to create a
reasonable balance between enforcing TCPA
autodialer usage while not unduly burdening
contact center operators with excessive regulations.
Unfortunately, the July Order is likely to result in
another increase in private TCPA lawsuits.
We are supporting a formal review of the Order
via our memberships in ACA International and the
Professional Association for Customer Engagement
(PACE); each group is appealing the ruling. Gaining
a seat on the PACE Board of Directors affords us the
opportunity to provide further insight into how these
decisions impact businesses and consumers.
Noble has hosted a number of webinars on
Compliance, which can be viewed on our website.
We also hope you will make plans to join us for the 2016
SNUG Conference in your region. These symposiums
are an ideal environment to gather knowledge from
your peers. And, of course, you can contact your
account manager at any time to learn more about
our compliance solutions or customer forums.