FCC Updates TCPA with Greater Protection Against Robocalls
In early July, a New York federal judge ordered Time Warner Cable to pay Araceli King of Irving, Tex., $229,500 for bombarding her with more than 153 robocalls between July 2013 and August 2014.
The calls were intended for Luis Perez, who had opened an account with Time Warner using King’s same phone number. King called the company to complain several times, but the calls kept coming.
In his ruling, U.S. District Court Judge Alvin Hellerstein determined that each call was a violation of the Telephone Consumer Protection Act (TCPA) of 1991 and awarded King $1,500 per call, triple the usual penalty.
A few days later, the Federal Communications Commission (FCC) further strengthened the law to provide even greater protection to the millions of American consumers who get telemarketing robocalls all the time.
The new rules, which went into effect July 10, bar companies from using autodialers or other devices that automatically call random or sequential numbers. They also mandate that companies honor customers’ requests to stop receiving robocalls and allow consumers to revoke prior authorization at any time. Also under the new rules, telephone service providers can issue to their subscribers technology that blocks robocalls, and companies cannot make more than one call to numbers that have been reassigned to another customer, regardless of whether the previous holder of that number authorized the calls. That was what had happened in King’s case.
The new rules, do, however, make limited exemptions for certain calls or text messages that would not require prior consent from the consumer. The exemption would apply, for example, to certain healthcare or banking communications, such as important health notices, prescription refill reminders, potential fraud alerts, or identity theft warnings. This limited exception allows three calls over three days per event, but still gives consumers the option of opting out at any time.
Most charities and political campaigns are also exempted from the rules.
The new rules apply equally to text messages. The law also emphasizes that "express written permission is required to call wireless telephone numbers."
The laws do not in any way alter the Do Not Call Registry, which was first instated in 2003.
According to the FCC, the additional protections come in response to the more than 215,000 complaints it received in 2014 alone. "We act to preserve consumers' rights to stop unwanted robocalls, including both voice calls and texts, and thus respond to the many who have let us, other federal agencies, and states know about their frustration with robocalls," the FCC said in the order.
The FCC’s chairman, Tom Wheeler, said in a statement that the new rules "interpret the TCPA in a common-sense way that benefits both callers and consumers."
Many businesses, however, see them as a warning. "These revisions to the TCPA have been called one of the most significant FCC consumer protection actions since the Do Not Call Registry," Melissa Bateman Fitzgerald, vice president of privacy consulting at Gryphon Networks, a provider of phone-based marketing compliance and sales intelligence solutions, wrote in an email. "As the FCC's laws continue to evolve, it's more important than ever for organizations to understand the rules and stay compliant in order to avoid potentially enormous fines and debilitating class-action suits."
To ensure compliance with the rules, Bateman Fitzgerald recommends auditing current compliance practices and procedures and engaging third-party compliance experts, if needed.
Becky Burr, chief privacy officer at business information provider Neustar and a former FCC employee, agrees. "As migration from landlines to mobile phones continues to accelerate, it's critical that organizations have updated consumer phone numbers and know whether or not that person has consented to be contacted on that device," she said in a statement.
Compliance with the new regulations starts with capturing the written consent of consumers to contact them on their mobile devices, according to Scott Frey, president and CEO of PossibleNOW, a provider of marketing compliance and enterprise preference management solutions. From there, he adds, the database of consent records must be maintained, validated, and updated as often as necessary.