Yesterday, the Federal Communications Commission (FCC) adopted a package of declaratory ruling which is meant to provide clarity to the Telephone Consumer Protection Act (TCPA).  This ruling was previously proposed by FCC Chairman Tom Wheeler on May 27, 2015.

According to the FCC, the declaratory ruling is meant to protect consumers against unwanted robocalls and spam texts.  As we have previously discussed, complaints related to unwanted calls are the largest category of complaints received by the FCC.  The declaratory ruling was influenced by those complaints and is focused on addressing 23 petitions and requests for clarity on the FCC’s interpretations of the TCPA.

Key provisions of the ruling for consumers who use either landline or wireless phones include:

  • Green Light for ‘Do Not Disturb’ Technology – Service providers can offer robocall blocking technologies to consumers and implement market-based solutions that consumers can use to stop unwanted robocalls.
  • Empowering Consumers to Say ‘Stop’ – Consumers have the right to revoke their consent to receive robocalls and robotexts in any reasonable way at any time.
  • Reassigned Numbers Are Not Loopholes – If a phone number has been reassigned, companies must stop calling the number after one call.
  • Third-Party Consent – A consumer whose name is in the contacts list of an acquaintance’s phone does not consent to receive robocalls from third-party applications downloaded by the acquaintance.

Additional highlights for wireless consumers include:

  • Affirming the TCPA’ Definition of Autodialer – “Autodialer” is defined in the TCPA as any technology with the capacity to dial random or sequential numbers. This definition ensures that robocallers cannot avoid consumer consent requirements through changes in calling technology design or by calling from a list of numbers.
  • Text Messages as Calls – The FCC reaffirmed that consumers are entitled to the same consent-based protections for texts as they are for voice calls to wireless numbers.
  • Internet-to-Phone Text Messages – Equipment used to send Internet-to-phone text messages is an autodialer, so the caller must have consumer consent before calling.
  • Very Limited/Specific Exemptions for Urgent Circumstances – Free calls or texts to alert consumers to possible fraud on their bank accounts or remind them of important medication refills, among other financial alerts or healthcare messages, are allowed without prior consent, but other types of financial or healthcare calls, such as marketing or debt collection calls, are not allowed under these limited and very specific exemptions. Also, consumers have the right to opt out from these permitted calls and texts at any time.

While the ruling provides clarity as to the FCC’s interpretation of the TCPA, it also makes it clear that the FCC intends to interpret the provisions of the TCPA very broadly in an effort to afford the greatest protections to consumers – often at the expense of legitimate businesses.  Declaratory Ruling and Order (FCC 15-72) was approved by a 3-2 vote, with Chairman Wheeler and Commissioner Clyburn, Commissioners Rosenworcel and O’Rielly approving and dissenting in part and Commissioner Pai dissenting.   The ruling takes effect immediately upon release of the full text.  For additional information concerning the TCPA and its potential impact on you or your business, please see our TCPA FAQs.

 

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Photo of Jason C. Gavejian Jason C. Gavejian

Jason C. Gavejian is a Principal in the Morristown, New Jersey, office of Jackson Lewis P.C. and a Certified Information Privacy Professional (CIPP/US) with the International Association of Privacy Professionals.

As a Certified Information Privacy Professional (CIPP/US), Mr. Gavejian focuses on the matrix…

Jason C. Gavejian is a Principal in the Morristown, New Jersey, office of Jackson Lewis P.C. and a Certified Information Privacy Professional (CIPP/US) with the International Association of Privacy Professionals.

As a Certified Information Privacy Professional (CIPP/US), Mr. Gavejian focuses on the matrix of laws governing privacy, security, and management of data. Mr. Gavejian is Co-Editor of, and a regular contributor to, the firm’s Workplace Privacy, Data Management & Security Report blog.

Mr. Gavejian’s work in the area of privacy and data security includes counseling international, national, and regional companies on the vast array of privacy and security mandates, preventive measures, policies, procedures, and best practices. This includes, but is not limited to, the privacy and security requirements under state, federal, and international law (e.g., HIPAA/HITECH, GDPR, California Consumer Privacy Act (CCPA), FTC Act, ECPA, SCA, GLBA etc.). Mr. Gavejian helps companies in all industries to assess information risk and security as part of the development and implementation of comprehensive data security safeguards including written information security programs (WISP). Additionally, Mr. Gavejian assists companies in analyzing issues related to: electronic communications, social media, electronic signatures (ESIGN/UETA), monitoring and recording (GPS, video, audio, etc.), biometrics, and bring your own device (BYOD) and company owned personally enabled device (COPE) programs, including policies and procedures to address same. He regularly advises clients on compliance issues under the Telephone Consumer Protection Act (TCPA) and has represented clients in suits, including class actions, brought in various jurisdictions throughout the country under the TCPA.

Mr. Gavejian represents companies with respect to inquiries from the HHS/OCR, state attorneys general, and other agencies alleging wrongful disclosure of personal/protected information. Mr. Gavejian negotiates vendor agreements and other data privacy and security agreements, including business associate agreements. His work in the area of privacy and data security includes counseling and coaching clients through the process of investigating and responding to breaches of the personally identifiable information (PII) or protected health information (PHI) they maintain about consumers, customers, employees, patients, and others, while also assisting clients in implementing policies, practices, and procedures to prevent future data incidents.

Mr. Gavejian represents management exclusively in all aspects of employment litigation, including restrictive covenants, class-actions, harassment, retaliation, discrimination, and wage and hour claims in both federal and state courts. Mr. Gavejian regularly appears before administrative agencies, including the Equal Employment Opportunity Commission (EEOC), the Office for Civil Rights (OCR), the New Jersey Division of Civil Rights, and the New Jersey Department of Labor. Mr. Gavejian’s practice also focuses on advising/counseling employers regarding daily workplace issues.

Mr. Gavejian’s litigation experience, coupled with his privacy practice, provides him with a unique view of many workplace issues and the impact privacy, data security, and social media may play in actual or threatened lawsuits.

Mr. Gavejian regularly provides training to both executives and employees and regularly speaks on current privacy, data security, monitoring, recording, BYOD/COPE, biometrics (BIPA), social media, TCPA, and information management issues. His views on these topics have been discussed in multiple publications, including the Washington Post, Chicago Tribune, San Francisco Chronicle (SFGATE), National Law Review, Bloomberg BNA, Inc.com, @Law Magazine, Risk and Insurance Magazine, LXBN TV, Business Insurance Magazine, and HR.BLR.com.

Mr. Gavejian is the Co-Chair of Jackson Lewis’ Hispanic Attorney Resource Group, a group committed to increasing the firm’s visibility among Hispanic-American and other minority attorneys, as well as mentoring the firm’s attorneys to assist in their training and development. Mr. Gavejian also previously served on the National Leadership Committee of the Hispanic National Bar Association (HNBA) and regularly volunteers his time for pro bono matters.

Prior to joining Jackson Lewis, Mr. Gavejian served as a judicial law clerk for the Honorable Richard J. Donohue on the Superior Court of New Jersey, Bergen County.