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FCC Ruling on TCPA

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On July 10, 2015, the Federal Communications Commission (FCC) released its long-awaited Declaratory Ruling and Order, which was prompted by nearly two dozen petitions and letters requesting clarifications under the Telephone Consumer Protection Act (TCPA). In the landmark ruling, the FCC doubled down on its expansive and controversial interpretation of the TCPA’s autodialer definition, more formally known as an automatic telephone dialing system (or ATDS).  On July 14, the PACE Association filed an appeal, asking the Seventh Court of Appeals to find that the FCC acted arbitrarily and capriciously by issuing an Order that is beyond the FCC’s authority and is contrary to the US Constitution and other laws. In connection, PACE’s National Board of directors issued the following statement: “PACE members and other legitimate companies have for too long been the target of vexatious litigators and their attorneys seeking to profit from the TCPA. The FCC, with its Declaratory Ruling, has made class action lawsuits easier to file and an onslaught of litigation is surely soon to follow. Instead of providing consumer protections, the FCC Ruling stifles legitimate business and consumer communications. PACE’s Appeal seeks to bring the TCPA back to its original purpose of balancing consumer protection with the interest of legitimate businesses.”

PACE hosted a webinar regarding the recent ruling led by PACE General Counsel Michele Schuster and Nick Whisler. The general consensus was that this ruling opens up more questions and concerns than did it clear up or answer any questions. These are the items I took away from the webinar:

  • The ruling is not consistent with previous rulings
  • It includes contradictory statements
  • It expands the definition of ATDS to include the potential ability to perform the functions of an ATDS
  • It supports prior rulings on: what is prior express consent, text and internet to phone text messages are included and more than once call to a reassigned number is a violation

In my opinion this ruling could have helped companies understand how they can legally market to their customer and prospect base, but instead by expanding the definition of ATDS has made it much more litigious, complex and difficult. I don’t know of a system that could not “include the potential ability to perform the functions of an ATDS.”

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