FCC TCPA 2015 Declaratory Ruling Analysis

Compliance Webinar: FCC TCPA
2015 Declaratory Ruling Analysis
JULY 15. 2015
PRESENTATION BY ATTORNEYS
ERIC ALLEN. ATTORNEY & MANAGING MEMBER - ALLEN LEGAL SERVICES PLLC
DAVID KAMINSKI. PARTNER - ATTORNEY AT CARLSON & MESSER LLP
TONIA KLAUSNER. PARTNER- WILSON SONSINI GOODRICH & ROSATI
CHRISTINE REILLY. PARTNER. CO-CHAIR, TCPA COMPLIANCE AND CLASS
ACTION DEFENSE - MANATT, PHELPS & PHILLIPS, LLP
MODERATED BY: RYAN THURMAN. DIREC TOR OF SALES & MARKETING

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• Free Litigator Scrub Test for Webinar Attendees
7/15/2015 FCC TCPA 2015 DECLARATORY RULING ANALYSIS 2

Webinar Agenda
1. Autodialers
2. Texting/Calling apps
3. Consent issues
4. Reassigned phone numbers
5. PEWC Limited Waiver
6. On-Demand Texts
7. Text messages/internet-to-phone technology
8. Exemption for Exigent Financial Calls
9. Exemption for Exigent Healthcare Calls (and other health care issues more generally)
10. Call blocking technology

The FCC 2015 Declaratory Ruling –
Reaffirms/Clarifies TCPA Rules
1. On July 10, 2015, the FCC released its Omnibus Declaratory Ruling and Order
(“7/10/15 Order”) in response to 21 Petitions regarding the definition of an
ATDS, liability for calls to reassigned numbers and other issues.
◦ The FCC reaffirmed its position that the TCPA is to be construed broadly
◦ The FCC reaffirmed TCPA is to be construed in favor of the consumer and
EMPOWER consumers to stop unwanted calls (para. 1)
◦ The FCC reaffirmed TCPA protects consumer privacy and public safety
(emergency line)
2. The FCC reaffirmed TCPA’s restrictions to wireless numbers apply to non-
telemarketing calls (Ex. informational calls.) (7/10/15 Order, para. 123)
3. Debt collection calls remain within the purview of the TCPA
4. FCC states it was making a Declaratory Ruling that “clarify[ies] existing law or
resolves controversy regarding the interpretation or application of existing law
and precedents.” (7/10/15 Order, para. 23) NOT ENTIRELY ACCURATE

TCPA 1991 – Wireless Autodialer Ban
The “Auto dialer” Ban:
§ 227(b) Restrictions on use of automated telephone equipment
(1) Prohibitions:
It shall be unlawful for any person within the United States or any person outside the United
States if the recipient is within the United States –
A. to make any call (other than a call made for emergency purposes or made with the prior
express consent of the called party) using any automatic telephone dialing system or an
artificial or prerecorded voice - …
B. to any telephone number assigned to a paging service, cellular telephone service,
specialized mobile radio service, or other radio common carrier service, or any service
for which the called party is charged for the call. (Emphasis added)
LANDLINE CALLS – § 227(b)(1)(B) - No liability for artificial/prerecorded informational voice
calls – Commercial Call exemption applies - 64.1200(a)(3)(iii)
7/15/2015 5FCC TCPA 2015 DECLARATORY RULING ANALYSIS

FCC Rules on Auto dialers
Automatic Telephone Dialing System defined by
TCPA: 47 USC 227(a)(1): “ATDS”
(a) DEFINITIONS —As used in this section—
(1) The term “automatic telephone dialing system”
means equipment which has the capacity—
(A) to store or produce telephone numbers to be called, using a random or sequential
number generator; and
(B) to dial such numbers.

1.Reaffirms 2003, 2008 FCC rulings that ALL predictive dialers are
autodialers. (7/10/15 Order, para. 12-13). PD’s retain the capacity to dial
thousands of numbers in a short period of time and could harm public
safety
2.A dialer is equipment which has “capacity to dial
numbers without human intervention” – FCC 2003, 2008
Rulings (Note: How the human intervention element applies to
a particular equipment involves a case-by-case determination)
3.An ATDS includes when calling a set list of consumers. (para. 10)
4.Equipment is ATDS even if not presently used for that purpose.” Id.
(emphasis added)
5.Does not include speed dialing. (7/10/15 Order, para. 17)
FCC 2015 Rules on Autodialers

“CAPACITY” Clarified: the capacity of an autodialer is not limited to its current
configuration but also includes its potential functionalities (7/10/15 Order, para.
16)
“Capacity” to be interpreted Broadly (7/10/15 Order, para. 19)
Future software additions are included in capacity
◦ There are “outer limits” to capacity - “must be more than a theoretical potential
that the equipment could be modified to satisfy the ‘autodialer’ definition.” Id.
Not all devices are autodialers even if has some capacity to store and dial
numbers (7/10/15 Order, para. 18) –
Ex. handset with speed dial is NOT a dialer. Rotary Phone not a dialer
Does broad construction of “capacity” sweep in smartphones ??
 No lawsuits filed in this regard
 There was “no evidence that friends, relatives, and companies with which
consumers do business find those calls unwanted”
 FCC will take a “wait and see” approach and monitor issue and further clarify if
needed
FCC Rules on CAPACITY

1.Inconsistent definitions of an ATDS in FCC 2015 Ruling
“capacity to store or produce telephone
numbers to be called, using a random or
sequential number generator” – i.e., the
TCPA statutory definition
(7/10/15 Order, para. 109, 111, 112)
“capacity to dial numbers without human
intervention” – FCC 2003, 2008 Rulings (Note:
How the human intervention element applies to
a particular equipment involves a case-by-case
determination)
(7/10/15/Order, para. 14)
“dialing equipment that generally has the
capacity to store or produce, and dial random
or sequential numbers” –
(7/10/15 Order, para. 10)

Additional FCC Rules on Auto dialers
“Do Use of Separate Systems In Dialing Process Avoid ATDS Issues?? –
Separate equipment dividing storage and calling functions between two
companies could be considered an ATDS. (7/10/15 Order, para. 23)
If the net result of combining operation enables the equipment to have the
capacity to store or produce telephone numbers to be called using a random or
sequential number generator. (7/10/15 Order, para. 24)
.

Something good for apps and
platform providers
Petitions filed by several app providers seeking rulings that they were not liable
when their users used them to send auto reply texts and text invitations to use
the apps.
Legal issue is who “initiates” the call or text.
In the contexts of apps and texting/calling platforms that can be used by others,
the FCC says that it will look to the “totality of the facts and circumstances” to
determine:
◦ 1. Who took the steps necessary to physically place the call; and
◦ 2. Whether the app or platform provider was so involved in placing the call to be
deemed to have initiated it "considering the goals and purposes of the TCPA."

Factors
Who decided whether to send the texts?
Who selected the cell phone numbers to which the texts were sent?
Who supplied the content of the messages?
Can the user be deemed to have “programmed” the app/platform to
send the texts?
*KEY IS USER CONTROL EVEN IF SOME INVOLVEMENT BY
APP/PLATFORM

Additional Considerations
Did the app/platform willfully enable spoofing?
Did the app/platform willfully enable caller ID blocking
Did the app/platform knowingly allow its users to use the app or
platform for unlawful purposes?
HERE FCC SEEMS MORE CONCERNED WITH LEVEL OF INVOLVEMENT IN A
LEGAL VIOLATION THAN TECHNCIALLY INITIATING THE CALL

FCC Rules on “Called Party” – Who is
Called Party Under TPCA
FRAMEWORK for Ruling:
1. Term “called party” is ambiguous.
2. FCC Rejects “intended recipient” theory (7/10/15 Order, para. 78)
RULE: “Called party” is:
 Subscriber - the consumer assigned the telephone number dialed and
billed for the call (7/10/15 Order, para. 73); or
 Non-subscriber - customary user of a telephone number included in a
family or business calling plan. Id.
Above individuals can grant express consent to be called (7/10/15
Order, para. 73)

FCC Reaffirms CONSENT Rules
The FCC does not require any specific method by which a caller must
obtain prior express consent. Para. 49 –
Based on Longstanding Rule – “[P]ersons 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”.
A number in a contact list is not prior express consent in part because
consent must be express, not implied. Para. 47, 51, 52
Burden on the caller to prove it obtained necessary prior express
consent. Para. 47
FCC says consent ruling should be construed “narrowly”
FCC Amicus Brief, June 30, 2014,
Nigro v. Mercantile Adjustment Bureau, 769 F.3d 804 (2nd Cir. 2014)

FCC 2008 Declaratory Ruling - Prior
Express Consent – What is Consent?
–Can be verbal or in writing. (Note: TCPA Silent -
Clarified by FCC 2/15/12/ Report)
–Via website - Roberts v. PayPal, Inc., 2013 U.S. Dist.
LEXIS 76319 (N.D. Cal.)
–placing number on loan app, credit card application,
Conditions of Admission forms, patient intake, etc.)
–Can consent be given directly to businesses party
–CRUX – get consent ONLY from consumer/debtor (FCC
2015 Ruling emphasizes this.)

FCC Rules on Revocation of Consent
RULE: “A caller may not limit the manner in which revocation may occur”
(7/10/15 Order, para. 47, 64-70) –
Revocation can be made via any “reasonable means.” para. 55, 64
(reasonable means not defined)
FCC states it is unfair for called party to bear burden of showing revocation.
Id., para. 70
Porting number does not revoke consent. Id., para. 54
Have Prior Express Consent
to Call Landline
You Have Consent
Prior Express Consent to Call
Wireless and that number is
ported to another wireless
You have Consent
Calls to landline without
prior express consent and
that number is ported to
wireless - Must get prior
express consent Id., para.
52

Additional Information on Revocation
Revocation is the same for informational and telemarketing
calls. Para. 69
Caller’s burden to prove consent. Have ability to do so.
Para. 70
Callers should maintain proper business records tracking
consent. Para. 70 - The well-established evidentiary value
of business records means that callers have reasonable
ways to carry their burden of proving consent.)
PROVING ORAL CONSENT – Difficult, and documenting in
account records could fact dispute. Solution: RECORD,
RECORD, RECORD

Reassigned Wireless Telephone Numbers
 “Called party” = current subscriber OR non-subscriber
customary user of phone
 One-free pass rule—one liability-free call after reassignment
• To qualify, caller bears the burden of showing it had no knowledge of
reassignment and had a reasonable basis to believe there was valid consent
• Purpose of one call is to gain actual or constructive knowledge of the
reassignment
• Unlimited period of time to make one-free call
• The one call does not need to connect to a person or voicemail
• “If this one additional call does not yield actual knowledge of reassignment,
we deem the caller to have constructive knowledge of such.” (¶ 72)

 Single-caller rule—a “single caller” gets one-free pass.
• Single caller defined as “any company affiliates, including subsidiaries.”
• “Two affiliated entities may not make one call each, but rather one call in
total.” (¶72, n.261)
 Wrong/misdialed number calls? One-free pass does not apply.
 Bad faith defense? NONE, even if called party purposely and
unreasonably waited to notify the calling party regarding
reassignment in order to accrue statutory penalties
 How is this practical? FCC believes the existence of database
tools combined with best practices, and a one-free pass rule,
“together make compliance feasible.” (¶83)

 How to Comply (according to FCC)
• Make manually dialed call to confirm identity
• Listen to name on voicemail
• Send email or mail request to confirm telephone numbers or update contact
information
• Database tools such as Neustar’s “Verification for TCPA” product
• Strong support for “full participation from carriers to make this type of option
more effective”
• Require consumers to notify businesses when they switch numbers via
contractual agreements and seek recourse for violation of the agreement
• Include an interactive opt-mechanism in prerecorded calls so that recipients
can easily report a reassigned or wrong number

 How to Comply (Cont’d)
• Implement procedures for recording wrong number/reassigned number
reports received by customer services reps placing outbound calls
• Implement processes for allowing customer service agents to record new
telephone numbers when receiving calls from customers
• Utilize an autodialer, manual dialer, and/or live caller to recognize triple-tones
that identify and record disconnected numbers
• Establish policies for determining whether a number has been reassigned if
there has been no response to a two-way call after a period of attempting to
contact a consumer
• Enable customers to update contact info by responding to any text message
they receive

“Old” Written Consent Is Not
Enough
The Coalition of Mobile Engagement Providers and the Direct Marketing
Association filed petitions seeking rulings that their members could rely
upon written consent provided prior to October 16, 2013.
Prior express written consent regulation for telemarketing calls and text
to wireless numbers and all telemarketing artificial or prerecorded voice
calls was not clear as to whether new consent required for all such calls
made after regulation became effective.
FCC says you must get new consent consistent with disclosure
requirements.
Clarifies that disclosures must be given and for ongoing campaigns
disclosures in a call to action will not suffice; they must be in the written
agreement.

Limited Waiver of Prior Express
Written Consent Regulation
Grants a retroactive waiver of the prior express written consent regulations
Duration of waiver: October 16, 2013 through 89 days following release of
Order
Waiver applies to Petitioners and their members as of July 10, 2015
Expectations during remaining duration of waiver: obtain for any future
marketing calls/texts prior express written consent in the manner required
by the current rule
Clarifies that disclosures in definition of “prior express written consent” are
required
Says for the first time that including disclosures in call to action is not
sufficient for ongoing campaigns; must have disclosures in the written
agreement itself.

Exemptions for Certain
Financial Messages
The TCPA allows the FCC to exempt certain calls that the call recipient is not
charged for (“Free-to-End-User” Calls). Responding to a request by the
American Bankers Association, the FCC granted exemptions for:
(1) Fraud and identity theft alerts;
(2) Data breach alerts;
(3) Messages informing victims of a data breach about remedial measures;
and
(4) Instructions for pending money transfers.

Conditions
1) Must be sent only to the wireless number provided by the
customer;
2) Must state the name and contact information of the financial
institution;
3) Must not include any marketing or debt collection;
4) Must be “concise” and generally 1 minute or less for calls and
160 characters for texts;
5) No more than 3 messages per event over a 3-day period for an
affected account;
6) Must have an easy means to opt-out; and
7) Must honor opt-outs immediately.

Exemptions for Certain
Healthcare Messages
In response to the AAHAM petition, the FCC also exempted certain Free-to-
End-User Calls made by the healthcare industry:
1) Appointment and exam confirmations and reminders;
2) Wellness checkups;
3) Hospital pre-registration instructions;
4) Pre-operative instructions;
5) Lab results;
6) Post-discharge follow-up intended to prevent readmission;
7) Prescription notifications; and
8) Home healthcare instructions.

Conditions
1) Must be sent only to the wireless telephone number provided by
the patient;
2) Must state the name and contact info of the healthcare provider;
3) Must not include any marketing, collection/accounting/billing, and
must comply with HIPAA privacy rules;
4) Must be “concise” and generally 1 minute or less for calls and 160
characters for texts;
5) Only 1 message per day, up to 3 calls or text messages combined
per week from a specific provider;
6) Must offer recipients an easy means to opt-out; and
7) Must honor the opt-outs immediately.

On-Demand Text Messages
 One-time text message sent immediately after a consumer
request does NOT violate the TCPA.
• Not telemarketing but “fulfillment of the consumer’s request.”
• E.g., consumer sees advertisement or call-to-action display and responds
by texting “discount” and gets a reply text with a coupon.
 Conditions:
• Must be requested by consumer
• Single text in response (more than a single text requires PEWC)
• Sent immediately in response to a specific request
• Contains only the information requested by the consumer with no other
marketing

Text Messages/
Internet-to-Phone Technology
 Text messages are calls under the TCPA.
 Equipment that sends internet-to-phone text messages is an
autodialer under the TCPA. (e.g., 5555551212@sprint.messaging.net )
 “[W]e clarify that other types of text messages that pose the same
consumer harms are subject to TCPA consumer protections. Specifically,
consumer consent is required for text messages sent from text
messaging apps that enable entities to send text messages to all or
substantially all text-capable U.S. telephone numbers, including through
the use of autodialer applications downloaded or otherwise installed on
mobile phones. Consumers face the same privacy impact and may incur
data costs from such texts. To free these texts from the TCPA’s
protection would leave a glaring gap in the statute’s coverage.” (¶116)

Call-Blocking Technology
Responding to a letter from the NAAG:
1) Nothing in rules prohibits carriers or VoIP providers
from implementing call-blocking technology that can
help consumers who choose to use such technology
to stop unwanted robocalls.
2) Encompasses both residential or individual customers as
well as business customers of the service providers.
3) FCC encourages carriers to provide blocking services, but
to avoid blocking robocalls from public safety and law
enforcement.
4) Must disclose risk that certain desired calls may be
blocked.

Contact info
Eric Allen
eric@allenlawyer.com
TelemarketingLawyer.com
Christine M. Reilly
creilly@manatt.com
310-312-4237
Tonia Klausner
tklausner@wsgr.com
Follow me on Twitter: @TCPAlawyer
Ryan Thurman
TCPAscrub.com
866-362-5478 x 116
ryan@dnc.com
David J. Kaminski, Partner
CARLSON & MESSER LLP
Dir: (310) 242–2204
kaminskid@cmtlaw.com

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