As anticipated, on July 10, 2015, the Federal Communications Commission (FCC) released its Telephone Consumer Protection Act (TCPA) Omnibus Declaratory Ruling which had previously been approved on June 18, 2015.  The Declaratory Ruling takes effect immediately.

In short, the Declaratory Ruling provides numerous rulings including:

  • Dialing equipment that simply has the capacity to store or produce, and dial random or sequential numbers meets the TCPA’s definition of “autodialer.”
  • Predictive dialers meet the definition of “autodialer.”
  • Callers cannot avoid obtaining consent by dividing ownership of pieces of dialing equipment that work in concert among multiple entities.
  • App developers do not make or initiate calls when one of the app users sends an invitational message using the app.
  • App developers do not make or initiate a text when an individual merely uses its service to set up auto-replies to incoming voicemails.
  • A called party may revoke consent at any time and through any reasonable means.
  • A calling party may not limit the manner in which revocation may occur.
  • If a question arises as to whether prior express consent was provided, the burden is on the calling party to prove that it obtained the necessary prior express consent.
  • The TCPA requires the consent not of the intended recipient of a call, but of the current subscriber (or non-subscriber customary user of the phone) and caller best practices can facilitate detection of number reassignment before calls are made.
  • Callers who make calls without knowledge of reassignment and with a reasonable basis to believe they have valid consent to make the call are permitted to initiate one call after reassignment as an opportunity to gain actual or constructive knowledge of the reassignment and cease future calls to the new subscriber.
  • For telemarketing calls, prior-express-written-consent requirements apply for each call made to a wireless number, rather than to a series of calls to wireless numbers made as part of a marketing or advertising campaign as a whole.
  • Nothing in the Communications Act or the FCC’s rules or orders prohibits carriers or VoIP providers from implementing call-blocking technology that can help consumers to stop unwanted robocalls.

In connection with the release of the Declamatory Ruling, FCC Chairman Tom Wheeler, who previously proposed the rulings said:

The American public has asked us – repeatedly – to do something about unwanted robocalls. Today we help Americans hang up on nuisance calls.

The text of the Declaratory Ruling makes it clear that the FCC’s interpretation of the TCPA is extremely broad, with the intent of protecting those who are called — often to the detriment of companies which are trying to reach their customers/clients, potential customers/clients, or other interested parties, often with no ill intent.

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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.