A declaratory ruling issued on June 25th by the Federal Communications Commission could open the door for telemarketers of extended warranties and other products to further exploit loopholes in the TCPA. The Telephone Consumer Protection Act (TCPA) was implemented in the early 1990s as a means to prevent Americans from being bombarded with unwanted telemarketing calls which were, at the time, increasingly interrupting family meals and other activities.

It has been modified over the years, including the recent TRACED Act, which was signed into law in late 2019. These modifications represent government's efforts to stay ahead of technological advances which allow telemarketers to tweak their calling techniques in an effort to skirt TCPA rules.

We clarify that the fact that a calling platform or other equipment is used to make calls or send texts to a large volume of telephone numbers is not determinative of whether that equipment constitutes an autodialer under the TCPA. Instead, whether the calling platform or equipment is an autodialer turns on whether such equipment is capable of dialing random or sequential telephone numbers without human intervention. If a calling platform is not capable of dialing such numbers without a person actively and affirmatively manually dialing each one, that platform is not an autodialer and calls made using it are not subject to the TCPA’s restrictions on calls to wireless phones.

The latest ruling attempts to clarify what constitutes an "autodialer" in the TCPA. Per the Act, an autodialer is defined as “equipment which has the capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.”

Under the new ruling, the FCC states, "we clarify that the fact that a calling platform or other equipment is used to make calls or send texts to a large volume of telephone numbers is not probative of whether that

equipment constitutes an autodialer under the TCPA. Instead, we make clear that if a calling platform is not capable of originating a call or sending a text without a person actively and affirmatively manually

dialing each one, that platform is not an autodialer and calls or texts made using it are not subject to the TCPA’s restrictions on calls and texts to wireless phones.

P2P Alliance Petition

In 2018, a group of providers and users of peer-to-peer messaging services for schools, non-profits, and other groups known as the P2P Alliance filed a petition with the FCC asking for clarification on the definition of an "autodialer." The P2P Alliance's petition centers around P2P text messages.

Per the group's website, the "P2P Alliance exists to proactively advocate for clear consumer protections governing P2P text messaging that distinguish good actors from bad actors and protect consumers from unwanted, automated robocalls."

Unintended Consequences

Unfortunately, the group's petition may allow robocallers to flourish, because the FCC did not limit the ruling to text messages. The ruling also applies to voice calls, and declares that if a dialing system requires human intervention to dial consumers it may not meet the definition of an "autodialer" as defined in the TCPA.

Per the FCC's ruling, "We clarify that the fact that a calling platform or other equipment is used to make calls or send texts to a large volume of telephone numbers is not determinative of whether that equipment constitutes an autodialer under the TCPA. Instead, whether the calling platform or equipment is an autodialer turns on whether such equipment is capable of dialing random or sequential telephone numbers without human intervention. If a calling platform is not capable of dialing such numbers without a person actively and affirmatively manually dialing each one, that platform is not an autodialer and calls made using it are not subject to the TCPA’s restrictions on calls to wireless phones."

The new ruling does not affect rules governing restrictions related to the do-not-call list or consent.

A copy of the FCC's ruling can be downloaded here.

Read more at Federal Communications Commission

Source: https://www.fcc.gov

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