The Baron and I are working hard to break the logjam and assist the Federal Communications Commission (“FCC”) to reach a ruling on the TCPA Public Notice proceeding following the ACA Int’l.

Last week we met the Chief and staff of the FCC’s Consumer and Governmental Affairs Bureau—the folks responsible for putting pen to paper on the TCPA Omnibus II— and walked through how the compromise proposal would work, brick by brick.

As to a compromise formulation for automated telephone dialing system, we explained that a definition for “automatic” dialing was needed. Although both the Ninth Circuit’s Marks case, and the FCC’s own rulings from 2003 focusing on “human intervention,” have looked at the idea of “automatic” dialing, neither ruling gave a definition for the term.  The compromise ATDS proposal would interpret the phrase ATDS to include dialers that randomly or sequentially generate numbers and dial them OR any system that dials automatically from a list without human intervention in that the system, as used, fails to achieve an abandonment rate of 3% or less of answered calls.

As stated in the ex parte filing, “[t]his alternate formulation establishes a definition of what it means to dial ‘automatically.’ It would assure that legitimate businesses can continue to use advanced and accurate technology to efficiently contact consumers, but require those businesses to assure enough man-power to field the calls it launches. It assures a positive consumer experience in that it reduces the number of abandoned calls consumers experience. It also harmonizes with existing telemarketing requirements regarding abandoned calls. See 47 C.F.R. § 64.1200(a)(7).”

In terms of nuts and bolts, the proposal would place the burden on the caller to demonstrate it maintained the abandonment rate over the average of any 30 day period during which a challenged call was made. If a dialer is not operated within these limits than calls placed during that 30 day period are presumptively made using an ATDS—although that presumption might be rebutted by other acceptable evidence that the dialer did not function automatically and without human intervention. That is to say, the 3% abandonment rate affords a clear, but non-exclusive, methodology by which a caller can demonstrate it is not dialing “automatically” for purposes of the statute.

A revocation compromise is also potentially in the works. The ex parte calls upon the FCC to incentivize businesses to maintain easy-to-use consumer contact preference portals where precise preferences can be tracked by callers and kept updated by consumers. Where a business offers such a portal the contact preferences would afford definitive proof of consent for calls to specific phone numbers for designated purposes. Where a business offers such a portal and a consumer fails to use it—such as by stating “do not call” during an outbound phone call—that effort still might be effective to revoke consent but will not override the previously-designated contact preferences except for the narrow purpose about which the call was originally placed. In other words, if the consumer had previously designated a cell phone number as consented to—as demonstrated by an entry in the easy-to-use preference portal—then any subsequent oral “do not call” request will only operate very narrowly to, for instance, stop calls regarding a specific payment deficiency or telemarketing effort. It would not be operate to force callers to cease calls using regulated technology to any given number for any other purpose. As the ex parte states: “In particular, where a business has provided such a portal, and a consumer yet states solely “stop calling”, or words to that effect, in response to an outbound phone call received from that business, that language should be treated solely as a narrow revocation of consent to be called solely on that number and solely for the purpose for which the call was placed.”

The compromise revocation proposal is critical because—as TCPAWorld followers know—consumer lawyers often create lawsuits by asking consumers to use vague language to revoke consent or file suits based upon statements made years ago, which the consumer decides post hac were meant to be broader than they were interpreted by an agent at the time. It should also provide a stout and swift defense instances where convenient or errant memories lead to errant suit.

Most importantly, however, such a rule would empower consumers by giving them a clear channel to communicate their contact preferences to responsible businesses, assuring that consumers receive the information they expect and desire via the channel that best suits the consumer. Callers using these portals will know whether they are permitted, for instance, to call a cellular number for some purposes and not others, or for certain accounts/products/services and not others. And both parties will have the satisfaction of having a clear understanding of what the other expects regarding the right and ability to contact the consumer for those designated purposes.  As the ex parte states: “[b]y thus narrowly construing revocation efforts made through channels that do not assure a clear “meeting of the minds” between the parties, the Commission can incentivize business to create consumer-friendly contact preference portals, cut down on frivolous and concocted lawsuits by Plaintiffs who “make what they will” of vague phrases in after-the-fact lawsuits, and better empower consumers to control how legitimate American businesses contact them—helping to restore confidence to consumers that they can trust calls from legitimate businesses reaching out to the consumer via authorized channels.”

Under the proposal, the burden of proving an “express and clear” revocation remains on the consumer in all instances, but the caller would bear the burden of demonstrating that it offered a conspicuously disclosed and easy-to-use channel to record the consumer’s specific contact preferences. For purposes of interpreting “east-to-use” a website or toll free number would suffice.

Well what do you think TCPAWorld—are we on to something?