On July 10, 2015, the Federal Communications Commission (FCC) released its TCPA Omnibus Declaratory Ruling and Order. We wrote about this order on June 29, previewing the FCC’s focus on consumers’ ability to opt out of certain calls, its reiteration of its definition of what constitutes an autodialer, and its view that text messages are “calls” under the statute.
As we discussed in our earlier post, one of the primary features of FCC 15-72 is its reassigned-number provision. The FCC expressed that calls placed to a cell phone number that has been reassigned could violate the TCPA even if the previous subscriber of that cell phone provided express written consent to the caller. The FCC reasoned that the TCPA requires consent of the current cell phone subscriber before a call can be placed using an autodialer. Because the assignee of the phone number likely has not provided consent, a call placed to such an individual may violate the statute. FCC 15-72 at ¶¶71-72. Recognizing that no database of cell phone subscribers exists—and, thus, that determining whether a particular number has been reassigned may not be possible—the FCC offered a limited exception to its rule. Callers who have consent and do not know whether a particular number has been reassigned may call the number once to determine whether it has been reassigned. However this exception offers scant protection as the FCC also stated, “[i]f this one additional call does not yield actual knowledge of reassignment, we deem the caller to have constructive knowledge of such.” Id. at ¶72.
Although the FCC’s earlier press release discussed many aspects of FCC 15-72, it did not mention the strong dissenting views of Commissioners Ajit Pai and Michael O’Rielly. Both Commissioner Pai and Commissioner O’Rielly saw the FCC’s order as exceeding the boundaries set by Congress in the TCPA and vastly expanding those previously set by the FCC. Moreover, both Commissioners suggested that the new rules create uncertainty for companies. Both Commissioners also noted that the FCC’s rules open up several new doors to suits against legitimate businesses. Indeed, Commissioner O’Rielly noted that the FCC “may have provided a new way for consumers acting in bad faith to entrap legitimate companies.” FCC 15-72 at 131. Given their breadth, these new rules are likely to have a major impact.