The TCPA has been a constantly evolving law since its inception. As such, it can be a pain for businesses subject to TCPA litigation to remain up to date on the latest FTC rulings and the latest court outcomes. In 2015, a Declaratory Ordering and Ruling broadened the application of the TCPA in many ways, most notably to include almost any device capable of automatically dialing a random phone number as an “autodialer” (or ATDS). On March 16 of this year, much of that ruling was overturned.
So what does this mean for you? First it is important to understand the 2015 Declaratory Ordering and Ruling that has been in place for the past few years. The key points of that ruling were:
- Reiterates that SMS messages are subject to the TCPA, even if sent internet-to-phone
- Auto-dialers include any device that can make random calls or can be modified to make random calls
- Consumers must be able to revoke consent orally or in writing
- Telemarketers are held accountable for reassigned numbers, only one mistaken call to a reassigned number is allowed
This ruling was put in place immediately, although a brief grace period was granted to allow businesses to make the necessary process changes to remain compliant. This received pushback from a number of industries and the ruling was ultimately challenged in a D.C. Circuit court where much of the ruling was overturned in a 3-0 vote.
The biggest change in the law as a result of this overruling is the definition of an autodialer. The court will no longer recognize any device with the potential to be modified into an autodialer as subject to the TCPA. Now a device in its “present capacity” has to have that functionality and be used to dial a random sequence of consumers in order to be regulated.
Additionally, the limit of a single call to a reassigned number was loosened in this ruling. The court determined that making a single call to a reassigned number might not provide information to the telemarketer that the number has been reassigned and therefore should not be immediately subject to litigation.
The two parts of the ruling that remain in favor of the consumer are opt-out methods, and calls subject to the TCPA. With opt-outs, advertisers have to accept any form of communication that reasonably suggests a consumer wishes communication to cease. The terms of opting out are not defined by the advertiser. For example, if an advertiser sends a promotional text that suggests in its content that a consumer can opt out by replying “STOP” or “QUIT” to the message, but the consumer instead replies “OPT-OUT,” the advertiser must recognize the consumer’s method of communication.
With regards to which calls are subject to the TCPA, the 2015 ruling determined that “consumer-centric” calls and texts from healthcare professionals or financial institutions were not regulated in the same way. Business owners wished to see this expanded. However as of now, it is safe to assume that unless you are a medical professional dealing with urgent health-based communications or in financial services dealing with time-sensitive information, your business is not part of the exemptions.
For more information, read the full decision.
Disclaimer: The author of this post is not an attorney and ActiveProspect does not provide legal services or consultation. This post should not be construed as legal advice. If you need a good TCPA attorney, contact us we would be happy to recommend one.