United States: FCC Passes New Declaratory Rule Clarifying And Interpreting Multiple, Key Provisions Of The TCPA In A Manner That Is Generally Unfavorable To Defendants

On June 18, 2015, the Federal Communications Commission ("FCC") voted 3-2 to approve an order that promises to have major and negative impacts on companies who use modern telephone technology to text and call consumers.

The stark increase in the number of lawsuits that were filed under the Telephone Consumer Protection Act ("TCPA") has been well documented.  This litigation trend also caused companies and industry groups to file 21 petitions with the FCC seeking clarification on a number of different facets of the TCPA.  Those petitions concerns macroscopic issues such as what constitutes an "autodialer" and whether text messages are covered by the TCPA, as well as granular issues involving the application of the TCPA to certain market segments (e.g., healthcare).

On June 18, 2015, the FCC held a hearing on a proposed Declaratory Ruling and Order, which FCC Chairman Tom Wheeler claimed will "reaffirm the Telephone Consumer Protection Act's protections against unwanted robocalls, encouraging pro-consumer uses of robocall technology, and responding to a number of requests for clarity from businesses and other callers."

The Declaratory Ruling was confirmed by the FCC by a 3-2 vote along political party lines.  The three Democrat Commissioners (including Chairman Wheeler) voted in favor of the Ruling while the two Republican Commissioners opposed it.

The Declaratory Rule has not yet been made public.  However, the commentary on the ruling at the hearing detailed a number of principles and findings that will be contained within the forthcoming Declaratory Rule.  Some of the highlights of the forthcoming Rule are as follows:

  • The FCC held that consumers have the right to revoke their consent to receive robocalls and robotexts "in any reasonable way" at any time; a phrase that remains up for interpretation, but which clearly was meant to exclude any attempt to categorically limit the manner(s) in which consumers can revoke consent or to require consumers to revoke consent in writing.
  • The FCC reaffirmed that the term "autodialer" encompasses as any technology with the "capacity" to dial random or sequential numbers, even if the autodialer is not being used in that manner at the time of the call in question and even if the system was not capable of making autodialed calls at the time of the call in question, so long as the potential to make such calls upon modification was present.  Put another way, the potential for a device to be used as an autodialer after modification confers autodialer status.
  • Text messages continue to constitute "calls" for purposes of potential TCPA liability.
  • If a phone number has been reassigned, callers can make one call without being subject to TCPA liability, after which they presumably must discover (even if the consumer does not pick up or respond to a text) that the reassigned number no longer belonged to the intended recipient and cease calling to avoid what will otherwise be strict liability.  Chairman Wheeler referred to this provision as the "One Strike Rule."  However, given that the "one-strike" is exhausted even if the consumer does not respond or pick up, this exemption may have little practical effect.
  • The FCC stated that wireless carriers, as well as VoIP providers, are free to provide consumers with services and technologies to block unwanted robocalls.
  • In addressing a question "about who makes a call and is therefore responsible for that call under the TCPA," the Rule "clarifies [that] an application that plays a minimal role in making a call, such as just providing the application itself, but not the message content, is not the maker of the call for purposes of the TCPA."
  • In favorable ruling for companies using telephone methods of contact, the FCC stated that consent continues to survive after the number is "ported" from a wireline (i.e., landline) to a wireless number.
  • Finally, the Rule grants limited exemptions from the TCPA's consent requirement for "time-sensitive financial alerts and healthcare related calls that are free to the consumers."  Those exemptions, however, are "subject to strict conditions" on privacy and they must also provide the consumer the ability to opt out of future like messages.  The FCC also emphasized that the exemptions also do not apply to "telemarketing and debt collection content." "There is a simple concept in the statute that we embrace today," Chairman Wheeler concluded: "You cannot be called unless you consent to be called.  The consumer should be in control."

The vote passed despite strong dissent from two Republican FCC Commissioners.  "In practice, the TCPA has strayed beyond its original purpose, and the FCC can fix that.  Instead, the order takes the opposite tact," said Commissioner Ajit Pai in a prepared statement to the Commission.  FCC Commissioner Michael O'Rielly, who also voiced dissent, stated "[t]oday's order has been hailed as protecting American consumers, but it is a farce."  "The order penalizes businesses and institutions acting in good faith to reach their consumers using technology."

As a general matter, the FCC's interpretation of the TCPA is binding on courts applying the TCPA in private lawsuits, including class actions.  Many courts have stayed litigation awaiting the FCC's rulings on the pending petitions.  The Declaratory Rule, when released, will need to be carefully studied by affected businesses for compliance.

Troutman Sanders, LLP has extensive experience in TCPA compliance and litigation, including class actions.  We will continue to evaluate the Declaratory Rule once published and will assess its impact on pending and putative litigation and compliance risks.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

David N. Anthony
Timothy St. George
Alan D. Wingfield
In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions