Over the past month, the FCC’s Consumer and Governmental Affairs Bureau (CGB) released multiple requests for public comment on matters related to the agency’s interpretation of the Telephone Consumer Protection Act (TCPA).
These requests for comment provide an opportunity for interested parties to weigh in on critical TCPA compliance issues, including the manner in which consumers may revoke consent to receive text messages and the test for identifying a “residential” telephone line when a residence is also used for business purposes.
Most recently, on April 27, 2016, CGB released a public notice seeking comment on a petition for declaratory ruling or retroactive waiver filed by Mobile Media Technologies, which concerns the TCPA’s prior express consent requirements. Under the TCPA, it is unlawful to make an autodialed call or text to a wireless telephone number without prior express consent of the called party, unless the call is made for an emergency purpose or solely to collect a debt owed to or guaranteed by the United States. 47 U.S.C. § 227(b)(1)(A). Although the TCPA does not explicitly address whether a consumer has the right to revoke previously-given prior express consent, the FCC in its July 2015 TCPA Omnibus Declaratory Ruling and Order concluded that consumers may revoke consent if they decide they no longer want to receive texts or voice calls. See In re Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991, 30 FCC Rcd. 7961, 7993-8000 (2015). The Commission went on to clarify that consumers have a right to revoke prior consent using any “reasonable method” that “clearly expresses a desire not to receive further messages.” Id.
Petitioner Mobile Media provides a service through which it transmits text alerts to the cell phones of consumers who have previously given their affirmative consent to receive such messages. Although Mobile Media’s subscribers were always able to revoke their consent through phone, mail, email, and other means, system limitations prevented subscribers from communicating revocation of consent through a bilateral reply text message (such as replying “STOP”) up until late 2015. As a result, Mobile Media’s clients found themselves facing TCPA litigation from subscribers claiming that their “STOP” reply text messages went unheeded because, in fact, their revocation of consent never reached Mobile Media or its clients.
The FCC is seeking comments on the issues raised by Mobile Media’s petition, which include:
- Whether the TCPA or the FCC’s rulings require a party transmitting a text message to create or make available any specific or particular method, including bilateral text messaging functionality, by which a consumer may revoke prior express consent to be texted, and
- Whether a “reasonable method” of revoking consent must, at a minimum, be a method that actually reaches the texting party.
Comments on Mobile Media’s petition are due by May 27, 2016, with reply comments due by June 13, 2016.
The CGB is also accepting comments in response to an earlier public notice related to a TCPA petition for declaratory ruling filed by Todd C. Bank. Mr. Bank’s petition seeks clarification on whether a phone line used in his home office could be considered a “residential” line under the TCPA and the FCC’s rules, which require prior express consent from the called party before initiating a telemarketing call to a “residential” line using an artificial or prerecorded voice. See 47 U.S.C. § 227; 47 C.F.R. § 64.1200(a)(3).
The telephone number used for Mr. Bank’s law practice is listed publicly as both a business and residential number, raising ambiguity about whether the phone line falls within the scope of these rules. Therefore, the FCC is seeking comment on whether it should establish a “bright-line” test or some other method for determining whether a telephone line is “residential” for purposes of the prohibition on artificial or prerecorded voice calls. Practically speaking, there is currently no way for callers to ensure that they are only calling business lines, since there is no publicly available list of purely “residential” numbers. The TCPA imposes strict liability even though there is no practical way to avoid it, such as when a caller dials Mr. Bank’s business without knowing that it is also his residence.
Comments on Mr. Bank’s petition are due by May 2, 2016, with reply comments due by May 17, 2016.