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.