We previously reported that the Federal Communications Commission (FCC) released an Omnibus Order on July 10, 2015 regarding the rules and regulations implementing the Telephone Consumer Protection Act (TCPA), specifically relating to robocalls.

Last week, in response to 21 inquiries following the release of the Omnibus Order, the FCC issued supplementary information in the Federal Register to clarify the limits and scope of the TCPA’s robocall telemarketing ban, including “clarifying when certain conduct violates the TCPA and providing guidance intended to assist callers in avoiding violations and consequent litigation.”

Specifically, the FCC reiterated that:

  • Callers must obtain prior written consent even if they are not “currently” or “presently” dialing random or sequential phone numbers;
  • Callers must get consent for robocalls if an acquaintance’s phone contact is downloaded from a third-party app;
  • Callers are liable for robocalls to reassigned wireless numbers, but get a one-call exception if the caller didn’t know about the reassignment;
  • Internet-to-phone text messages require consumer consent;
  • Text messages are considered “calls” subject to the TCPA;
  • Consumers may stop unwanted calls by revoking consent at any time and through any reasonable means, and carriers and VOIP providers may implement call-blocking technology to help consumers stop unwanted robocalls.

Additional clarification includes:

  • App providers that play a minimal role in sending text messages are not per se liable for unwanted robocalls;
  • Providers of collect-call services are not liable for making unwanted robocalls if the provider is giving consumers valuable call set-up information; and
  • “On demand” text messages sent in response to a consumer request are not subject to TCPA liability

The TCPA continues to be a complicated compliance area and one that has the attention of class action litigants, so it is beneficial to keep abreast of developments in this area if your business performs sales and marketing through telephone calls and texts.