United States: FCC Issues Omnibus Ruling On Host Of Issues Affecting TCPA Litigation And Compliance

On July 10, 2015, the Federal Communications Commission (FCC) finally released its long awaited TCPA Omnibus Declaratory Ruling and Order, which resolved 21 petitions involving a wide variety of issues regarding the enforcement and interpretation of the Telephone Consumer Protection Act (TCPA). The FCC had voted in favor of the Ruling June 18 at an Open Meeting of the Agency's five Commissioners, but the details of the Ruling were only summarized at the time. See June 19, 2015 Reed Smith Client Alert: FCC Finally Acts to Clarify Ambiguities in the TCPA. Now, we have the full 166 page document – which includes more than 550 footnotes – so we can report more definitively about the scope of the FCC's Ruling.

As expected, the Ruling unfairly lumps legitimate businesses in with the telemarketing abusers that the Act was intended to deter. The FCC shows little concern for most industries' interests in its attempt to stem the recent wave of TCPA class action litigation. Following are some of the Ruling's highlights:

  • Definition of "Automatic Telephone Dialing System" or "Autodialer." The TCPA's express definition of an autodialer requires it to have the "capacity" to store or produce telephone numbers "using a random or sequential number generator," and to dial such numbers. In response to numerous petitions seeking clarification of the term "capacity," the FCC espouses an extremely broad view in its Ruling, essentially reading the "random or sequential number generator" requirement out of the statute. The FCC holds that "the capacity of an autodialer is not limited to its current configuration but also includes its potential functionalities." In other words, the FCC rejects the view of the industry (and many courts) that it is the "present capacity" of the equipment that matters, not some future possibility of converting that equipment into an autodialer. For instance, if software could be downloaded to the equipment at any point in the future to generate random or sequential numbers (which virtually all computers and smartphones can do), that is sufficient to render it an autodialer under the FCC's Ruling. The FCC acknowledges, though, that it is not addressing the "exact contours" of the autodialer definition and that "there are outer limits to the capacity of equipment to be an autodialer," giving as an example that modifying "a rotary-dial phone to such an extreme that it would satisfy the definition of 'autodialer'" would be "too attenuated." The FCC also reiterates that the absence of "human intervention" remains a key component in determining whether any particular piece of equipment functions as an autodialer, but that the ultimate determination must be made on a "case-by-case" basis. As for the slippery slope argument that every smartphone would be an "autodialer" under the FCC's extremely broad definition, the FCC could only respond that "there is no evidence in the record that individual consumers have been sued based on typical use of smartphone technology" and it would monitor consumer complaints "regarding atypical use of smartphones, and provide additional clarification if necessary." The FCC did clarify that equipment used to send Internet-to-phone text messages may be considered an autodialer under the TCPA.
  • Liability for Calling Reassigned/Wrong Wireless Numbers and the Definition of a "Called Party." A number of petitions had asked for a "safe harbor" from TCPA liability for calls made with the prior express consent of a consumer whose wireless telephone number is subsequently reassigned to another person without the caller's knowledge. Despite acknowledging that "marketplace solutions for identifying reassigned numbers are not perfect," the FCC refuses to interpret the term "called party" in the TPCA as referring to the "intended recipient" of the call. The FCC finds instead that "called party" means the current phone subscriber or "customary user" of the phone. As a result, businesses will be held strictly liable for calls to reassigned phone numbers regardless of whether the original subscriber had previously provided his or her consent. The FCC did impose an "exception" for the first call to a wireless number following reassignment. However, it specifically "reject[ed] the argument that this one call must connect to a person, answering machine, or voicemail, or must otherwise provide the caller with actual knowledge of reassignment," finding that the one call provided "constructive knowledge" to the caller. In other words, the "exception" has no value to a company that unknowingly calls a reassigned number if the recipient does not actually pick up the phone or does not inform the caller of the change (which often will be the case).
  • Revocation of Consent. The FCC also clarifies that consumers can revoke their consent to receive telemarketing and/or informational robocalls "through any reasonable means." Examples of revocation methods given by the Commission include: "by way of a consumer-initiated call, directly in response to a call initiated or made by a caller, or at an in-store bill payment location." The FCC further holds that companies "may not infringe on that ability by designating an exclusive means to revoke." In response to a petitioner's argument that allowing oral revocation would put defendant callers at a disadvantage in "he said-she said" situations, the FCC simply replied that companies must "maintain proper business records tracking consent."
  • 89-Day Opportunity to Obtain Prior Express Written Consent for Telemarketing Calls. In October 2013, the FCC implemented its prior express written consent requirement for telemarketing calls. The FCC Ruling clarifies that prior express consent for telemarketing calls obtained before the October 2013 effective date is not sufficient if that consent does not comply with the new prior express written consent requirements. However, the FCC acknowledges that some confusion may have existed on this point and, therefore, imposes a new 89-day period from the release of its Ruling July 10, 2015, for companies to implement compliance with the new written consent requirements. In other words, by October 7, 2015, all businesses will have to obtain new consent from consumers if the consent those consumers gave prior to October 2013 does not conform to the more stringent requirements now in effect.
  • Text Messages. The FCC took the opportunity provided by the Ruling to reiterate its prior holding that a text message counts as a "call" under the TCPA. The Ruling also sets forth rules for when a text message application provider may be held liable under the TCPA, which depends mostly on who initiates the text and who creates the message content. A contact's presence in an address book does not alone establish consent to receive a message from the application platform.
  • "On Demand" Text Messages. The FCC clarifies that sending a single text message in direct response to a consumer-initiated text message does not require any further prior express written consent because it is not considered a "telemarketing" message. However, that text message must not contain marketing information about any products other than those specifically asked about by the consumer.
  • Prior Express Consent for Non-Telemarketing Healthcare Calls. The FCC Ruling clarifies that the "provision of a phone number to a healthcare provider constitutes prior express consent for healthcare calls subject to HIPAA by a HIPAA-covered entity and business associates acting on its behalf [as those terms are defined in HIPAA]," if those calls are made within the scope of the consent given. In addition, if a person is medically incapacitated, a third party may give prior express consent to receive healthcare calls for that incapacitated person. However, this only applies during the period of incapacity; afterwards, the patient must give his or her own prior express consent.
  • Exemptions for Free Informational Calls by Certain Banking and Healthcare Institutions. In one bright spot, the FCC did agree to exempt from the TCPA's autodialer provisions certain calls made by financial and healthcare institutions. The FCC generally permits three calls (of one minute or less) or texts, over a three day period, per event, subject to strict opt-out requirements and provided that no marketing information is included and that the healthcare messages comply with HIPAA. The basic exempt categories are:
    • Fraud/identity theft/data security breach alerts
    • Calls regarding pending money transfers
    • Appointment and exam confirmations and reminders
    • Wellness checkups
    • Hospital pre-registration and pre-operative instructions
    • Lab results
    • Post-discharge follow-up intended to prevent readmission
    • Prescription notifications, and
    • Home healthcare instructions.

ACA International, the association of credit and collection professionals, filed suit in the United States Court of Appeals for the D.C. Circuit last Friday, just as soon as the FCC's Ruling was released. ACA International seeks judicial review of the Ruling, arguing that the FCC has exceeded the scope of its authority and tried to sidestep Congress. Stay tuned for further news on this and other appeals certain to be filed.

This article is presented for informational purposes only and is not intended to constitute legal advice.

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.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
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