Latest FCC Ruling Will Likely Fuel TCPA Class-Action Lawsuits

On July 10, 2015, the Federal Communications Commission (FCC) released its much-anticipated Telephone Consumer Protection Act (TCPA) Omnibus Declaratory Ruling.

The FCC’s broad interpretation of the TCPA is likely to further fuel the growing trend of class-action litigation against unsuspecting businesses.

The TCPA prohibits the use of “any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement․” The statute contains three notable exceptions: (1) if a prior business relationship exists between the parties; (2) if the recipient voluntarily makes its fax number available for “public distribution”; or, (3) if the advertisement contains a notice informing the recipient of the ability and means to avoid future unsolicited advertisements.

In addition to authorizing regulatory enforcement, the TCPA provides a private cause of action. Since the TCPA authorizes statutory damages of $500-$1,500 per violation, which generally exceeds the recipient’s actual damages, TCPA violations are attractive to plaintiffs’ class-action lawyers.

Issues that may cause TCPA class-action lawsuits

The latest FCC declaratory ruling clarifies a number of issues that may make it easier for plaintiffs to successfully bring TCPA class-action lawsuits. Below are just a few of the agency’s findings:

• Callers cannot avoid obtaining consumer consent for a robocall simply because they are not “currently” or “presently” dialing random or sequential phone numbers;
• Simply being on an acquaintance’s phone contact list does not amount to consent to receive robocalls from third-party applications downloaded by the acquaintance;
• Callers are liable for robocalls to reassigned wireless numbers when the current subscriber to or customary user of the number has not consented, subject to a limited, one-call exception for cases in which the caller does not have actual or constructive knowledge of the reassignment;
• Internet-to-phone text messages require consumer consent; Text messages are “calls” subject to the TCPA;
• Consumers may revoke consent at any time and through any reasonable means; and
• Nothing in the Communications Act or our implementing rules prohibits carriers or Voice over Internet Protocol (VoIP) providers from implementing consumer-initiated call-blocking technology that can help consumers stop unwanted robocalls.

The FCC’s intent is to protect consumers from unwanted solicitations via telephone, fax, and text message. However, the agency’s expansive interpretation of the TCPA is likely to increase the likelihood that businesses will unwittingly violate the law and open themselves up to costly class-action lawsuits. Given the liability risk, we encourage business owners to review the FCC ruling and contact experienced counsel with any questions or concerns. Robert Levy, Chair of our Litigation Group, has litigated these issues and is available for consultation.