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FCC Expands Potential Liability under the Telephone Consumer Protection Act for Business-to-Customer Calls and Text Messages

By Archis A. Parasharami, Kevin Ranlett & Adam Hudes on July 23, 2015
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FCC logo“This Order will make abuse of the TCPA much, much easier. And the primary beneficiaries will be trial lawyers, not the American public.” That’s what FCC Commissioner Ajit Pai had to say in his dissent from the FCC’s recent Declaratory Ruling and Order, issued on July 10, 2015. The FCC’s Order reflected the agency’s response to 21 petitions seeking guidance regarding or exemptions from various requirements under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, and its implementing regulations.

The TCPA prohibits certain fax and automated-dialing practices and authorizes recovery of up to $1,500 per call, text message, or fax sent in willful violation of its restrictions. The TCPA has led to a tidal wave of class-action litigation, and the FCC’s recent Order may hasten that trend.

Most prominently, the FCC’s recent ruling:

  • Expands the types of equipment that might qualify as an autodialer subject to the TCPA;
  • Confirms that, for certain kinds of calls or text messages that are subject to the FCC’s “prior express written consent” rule that became effective in October 2013, companies cannot rely on consents given before October 2013 that do not meet the “prior express written consent” standard, although—for certain companies—the “prior express written consent” rule is waived until October 9, 2015;
  • Clarifies that consumers may revoke consent to receive regulated calls or text messages through any reasonable means, and that companies cannot limit those means;
  • Imposes liability for autodialed calls to reassigned or wrong numbers;
  • Requires consent for Internet-to-phone text messages;
  • Clarifies when providers of calling or texting platforms might be liable for unsolicited calls and messages sent by users;
  • Exempts certain free, one-time text messages sent in response to a request for information from liability;
  • Exempts from liability certain free, time-sensitive financial- and healthcare-related messages;
  • Permits carriers and Voice over Internet Protocol (VOIP) providers to adopt call-blocking technology.

Despite the number and significance of these changes, the FCC has stated that its ruling is effective immediately. Please read our report (pdf) for further detail.

Photo of Archis A. Parasharami Archis A. Parasharami

Archis A. Parasharami, a litigation partner in Mayer Brown’s Washington DC office, is a co-chair of the firm’s Consumer Litigation & Class Actions practice, recently named by Law360 as one of the top five class action groups of the year. He also is…

Archis A. Parasharami, a litigation partner in Mayer Brown’s Washington DC office, is a co-chair of the firm’s Consumer Litigation & Class Actions practice, recently named by Law360 as one of the top five class action groups of the year. He also is a member of the firm’s Supreme Court & Appellate practice.

Archis routinely defends businesses in class action litigation in federal and state courts around the country. He brings substantial experience to all aspects of complex litigation and class actions, with a particular focus on strategy issues, multidistrict litigation, and critical motions seeking the dismissal of class actions or opposing class certification. He also has helped businesses achieve settlements on highly favorable terms in significant class actions. Archis frequently speaks on developments in the class action arena, and has been quoted on a number of occasions in the National Law Journal, Corporate Counsel, and the Wall Street Journal Law Blog.

Read Archis’ full bio.

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Photo of Kevin Ranlett Kevin Ranlett

Kevin Ranlett is a partner in the firm’s Supreme Court & Appellate and Consumer Litigation & Class Actions practices. He has defended businesses in numerous complex class and representative actions in state and federal courts across the country and in proceedings before the…

Kevin Ranlett is a partner in the firm’s Supreme Court & Appellate and Consumer Litigation & Class Actions practices. He has defended businesses in numerous complex class and representative actions in state and federal courts across the country and in proceedings before the American Arbitration Association. In addition to drafting critical trial motions, Kevin has a substantial appellate practice. He has written merits or amicus briefs in appeals involving issues of class certification, arbitration, securities law, federal preemption, the Alien Tort Statute, punitive damages, and employment discrimination. He also advises businesses in drafting and enforcing consumer and employee arbitration agreements.

Read Kevin’s full bio.

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  • Posted in:
    Technology and AI
  • Blog:
    Class Defense Blog
  • Organization:
    Mayer Brown
  • Article: View Original Source

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