Wrong Number! D.C. Circuit Rules on Challenges to the FCC’s 2015 TCPA Order Part IV: What’s Next – New FCC Rulemakings and Impact on Litigation

Robocalls - everyone has strong feelings about them. In many cases they serve a useful function, but they are often unwanted and/or fraudulent, and they are the largest source of consumer complaints to the FCC. In response, the FCC in 2015 issued a Declaratory Ruling and Order intended to broaden the number of calls subject to the FCC's enforcement powers under the Telephone Consumer Protection Act (TCPA). On appeal, though, the D.C. Circuit recently reversed the FCC's controversially broad definition of "automatic telephone dialing system" (ATDS or autodialers) and its one-call safe harbor for calls made to numbers have been reassigned to a new subscriber. On the other hand, the court upheld the FCC's 2015 holding that callers may revoke their consent to calls in any reasonable manner. The ATDS and safe harbor issues were remanded back to the FCC, which will likely address the issues in new rulemaking proceedings, including a proceeding opened on March 22rd seeking comments on ways to address the problem of unwanted calls to reassigned numbers. It is not clear at this time what the impact of all of this will be on pending and future TCPA litigation.

In our four-part series, we broke down the controversy over the definition of "autodialer," the means by which consumers can revoke their consent to be called, the issue of consent for calls to telephone numbers that have been reassigned to new subscribers, the FCC's new proceeding on using databases to minimize the impact of reassigned numbers, and where this TCPA litigation goes from here.

Below is part four of our series. Catch up on parts one, two, and three here.

4. What's Next - New FCC Rulemakings and the Impact on Litigation

So, where do things go from here? We expect the FCC to initiate rulemaking proceedings to address the issues the court remanded: the definition of "autodialer" and the reassignment of numbers. In the 2015 Order, then-Commissioner (now Chairman) Ajit Pai expressed his disdain for unwanted telemarketing calls, but objected strongly to the FCC's overly-broad definition, asserting that it will substantially increase litigation against parties acting in good-faith. Now, he has a chance to shape the discussion on remand.

Regarding TCPA compliance where numbers have been reassigned, on March 22nd the FCC adopted a Notice of Proposed Rulemaking seeking comments on the use of databases to reduce the problem. In that Notice, the FCC:

• Proposes to ensure that one or more databases are available to provide callers with the comprehensive and timely information they need to avoid calling reassigned numbers;
• Seeks comment on the information that callers who choose to use a reassigned numbers database need to avoid calling a reassigned number. Notably, the NPRM seeks to minimize the consumer information provided to the database (to protect consumer privacy associated with that information) while maximizing the effectiveness of the database to protect consumer privacy interests in not receiving unwanted calls;
• Seeks feedback on three alternative ideas for service providers to report that information: 1) requiring service providers to report reassigned number information to a single, FCC-designated database; 2) requiring service providers to report that information to one or more commercial data aggregators; or 3) allowing service providers to report that information to commercial data aggregators on a voluntary basis; and
• Seeks comment on whether andhow the Commission should adopt a safe harbor from liability under the Telephone Consumer Protection Act for those callers that choose to use a reassigned numbers database. What sort of liability would such a safe harbor protect callers from: calling any reassigned number or from calls where the database information was inaccurate?

It is unclear what immediate impact, if any, all of this will have on TCPA litigation. Many courts had stayed pending litigation in anticipation of the D.C. Circuit's rulings. Now that core issues have been remanded back to the FCC, different courts may take different approaches to the status of pending cases. For companies seeking to remain in compliance with TCPA, the initiation of new rulemakings on key issues will create on-going regulatory risks. But, there is no uncertainty over the requirement that callers obtain prior express written consent for autodialed calls to wireless numbers, so companies should certainly make sure that they continue to have such consent.

We will follow the TCPA rulemakings at CommLawBlog, but if you have questions about TCPA compliance, please call us at (703) 812-0400 or visit us at www.fhhlaw.com.