Federal Communications Commission FCC 15-72
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Rules and Regulations Implementing the
Telephone Consumer Protection Act of 1991
American Association of Healthcare
Administrative Management
Petition for Expedited Declaratory Ruling and
Exemption
American Bankers Association
Petition for Exemption
Coalition of Mobile Engagement Providers
Petition for Declaratory Ruling
Consumer Bankers Association
Petition for Declaratory Ruling
Direct Marketing Association
Petition for Forbearance and
Emergency Petition for Special Temporary Relief
Paul D. S. Edwards
Petition for Expedited Clarification and
Declaratory Ruling
Milton H. Fried, Jr., and Richard Evans
Petition for Expedited Declaratory Ruling
Glide Talk, Ltd.
Petition for Expedited Declaratory Ruling
Global Tel*Link Corporation
Petition for Expedited Clarification and
Declaratory Ruling
National Association of Attorneys General
Request for Clarification
Professional Association for Customer
Engagement
Petition for Expedited Declaratory Ruling and/or
Expedited Rulemaking
Retail Industry Leaders Association
Petition for Declaratory Ruling
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CG Docket No. 02-278
WC Docket No. 07-135
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Federal Communications Commission FCC 15-72
Revolution Messaging
Petition for Expedited Clarification and
Declaratory Ruling
Rubio’s Restaurant, Inc.
Petition for Expedited Declaratory Ruling
Santander Consumer USA, Inc.
Petition for Expedited Declaratory Ruling
Stage Stores, Inc.
Petition for Expedited Declaratory Ruling
TextMe, Inc.
Petition for Expedited Declaratory Ruling and
Clarification
United Healthcare Services, Inc.
Petition for Expedited Declaratory Ruling
YouMail, Inc.
Petition for Expedited Declaratory Ruling
3G Collect, Inc., and 3G Collect LLC
Petition for Expedited Declaratory Ruling
ACA International
Petition for Rulemaking
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DECLARATORY RULING AND ORDER
Adopted: June 18, 2015 Released: July 10, 2015
By the Commission: Chairman Wheeler and Commissioner Clyburn issuing separate statements;
Commissioners Rosenworcel and O’Rielly approving in part, dissenting in part, and issuing separate
statements; and Commissioner Pai dissenting and issuing a statement.
TABLE OF CONTENTS
Paragraph #
I. INTRODUCTION.................................................................................................................................. 1
II. BACKGROUND.................................................................................................................................... 4
III. PETITIONS FOR DECLARATORY RULING AND EXEMPTION................................................. 10
A. Discussion ...................................................................................................................................... 10
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Federal Communications Commission FCC 15-72
1. Autodialers .............................................................................................................................. 10
2. Maker of a Call........................................................................................................................ 25
a. Texting/Calling Apps........................................................................................................ 25
b. Collect Call Services and Prerecorded- or Artificial-Voice Messages ............................. 38
3. Consent and Called Party ........................................................................................................ 47
a. Establishing Consent......................................................................................................... 47
b. Revoking Consent.............................................................................................................55
c. Reassigned Wireless Telephone Numbers........................................................................ 71
(i) Meaning of “Called Party” ......................................................................................... 73
(ii) Learning of Reassigned Numbers .............................................................................. 85
4. Prior Express Written Consent After 2012 Rule Changes....................................................... 98
a. DMA and Coalition........................................................................................................... 98
b. RILA ............................................................................................................................... 103
5. Text Messages as Calls.......................................................................................................... 107
6. Distinction Between Telemarketing and Informational Calls ............................................... 123
7. Free-to-End-User Calls.......................................................................................................... 125
8. Waiver and Additional Exemption Requests......................................................................... 149
9. Call-Blocking Technology .................................................................................................... 152
IV. PETITIONS FOR RULEMAKING ...................................................................................................164
V. ORDERING CLAUSES..................................................................................................................... 166
APPENDIX A – List of Commenters on American Association of Healthcare Administrative
Management Petition
APPENDIX B – List of Commenters on American Bankers Association Petition
APPENDIX C – List of Commenters on Coalition of Mobile Engagement Providers Petition
APPENDIX D – List of Commenters on Consumer Bankers Association Petition
APPENDIX E – List of Commenters on Direct Marketing Association Petition
APPENDIX F – List of Commenters on Paul D. S. Edwards Petition
APPENDIX G – List of Commenters on Milton H. Fried, Jr., and Richard Evans Petition
APPENDIX H – List of Commenters on Glide Talk, Ltd. Petition
APPENDIX I – List of Commenters on Global Tel*Link Corporation Petition
APPENDIX J – List of Commenters on National Association of Attorneys General
APPENDIX K – List of Commenters on Professional Association for Customer Engagement Petition
APPENDIX L – List of Commenters on Retail Industry Leaders Association Petition
APPENDIX M – List of Commenters on Revolution Messaging Petition
APPENDIX N – List of Commenters on Rubio’s Restaurant, Inc., Petition
APPENDIX O – List of Commenters on Santander Consumer USA, Inc., Petition
APPENDIX P – List of Commenters on Stage Stores, Inc., Petition
APPENDIX Q – List of Commenters on TextMe, Inc., Petition
APPENDIX R – List of Commenters on United Healthcare Services, Inc., Petition
APPENDIX S – List of Commenters on YouMail, Inc., Petition
APPENDIX T – List of Commenters on 3G Collect Petition
APPENDIX U – List of Commenters on ACA International Petition
APPENDIX V – List of Commenters on Communication Innovators Petition
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Federal Communications Commission FCC 15-72
I. INTRODUCTION
1. Month after month, unwanted robocalls and texts,
1
both telemarketing and informational,
top the list of consumer complaints received by the Commission. The Telephone Consumer Protection
Act (TCPA)
2
and our rules empower consumers to decide which robocalls and text messages
3
they
receive, with heightened protection to wireless consumers, for whom robocalls can be costly and
particularly intrusive. Beyond protecting consumers, federal law and our rules protect Public Safety
Answering Points (PSAPs)
4
from robocalls that can tie up critical first responder resources.
5
With this
Declaratory Ruling and Order, we act to preserve consumers’ rights to stop unwanted robocalls, including
both voice calls and texts, and thus respond to the many who have let us, other federal agencies, and states
know about their frustration with robocalls.
2. In enacting the TCPA, Congress made clear that “[i]ndividuals’ privacy rights, public
safety interests, and commercial freedoms of speech and trade must be balanced in a way that protects the
privacy of individuals and permits legitimate telemarketing practices.”
6
Since the TCPA’s enactment,
calling technology has changed, and businesses have grown more vocal that modern dialing equipment
should not be covered by the TCPA and its consumer protections. At the same time, consumers have also
made it clear that despite such technological changes, they still want to avoid most robocalls they have
not agreed to receive. With this order—which resolves 21 separate requests for clarification or other
action regarding the TCPA or the Commission’s rules and orders—we affirm the vital consumer
protections of the TCPA while at the same time encouraging pro-consumer uses of modern calling
technology. Further, the clarity we provide in this Declaratory Ruling and Order will benefit consumers
and good-faith callers alike by clarifying whether conduct violates the TCPA and by detailing simple
guidance intended to assist callers in avoiding violations and consequent litigation. Among other actions,
we:
1
In this Declaratory Ruling and Order, we refer to calls that require consumer consent under the TCPA as
“robocalls,” “covered calls and texts,” or “voice calls and texts.” See, e.g., Rules and Regulations Implementing the
Telephone Consumer Protection Act of 1991, CG Docket No. 02-278, Report and Order, 27 FCC Rcd 1830, 1831,
para. 1 (2012) (2012 TCPA Order). Unless otherwise indicated, the term “robocalls” includes calls made either with
an automatic telephone dialing system (“autodialer”) or with a prerecorded or artificial voice. Id. We may also refer
to prerecorded-voice and artificial-voice calls collectively as “prerecorded calls.”
2
The TCPA is codified at section 227 of the Communications Act of 1934, as amended. See 47 U.S.C. § 227. The
TCPA defines “automatic telephone dialing system” as “equipment which has the capacity--(A) to store or produce
telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” Id.
§ 227(a)(1).
3
Except where context requires otherwise, our use of the term “call” includes text messages. Rules and Regulations
Implementing the Telephone Consumer Protection Act of 1991, CG Docket No. 02-278, Report and Order, 18 FCC
Rcd 14014, 14115, para. 165 (2003) (2003 TCPA Order).
4
A PSAP is a “facility that has been designated to receive emergency calls and route them to emergency service
personnel.” 47 U.S.C. § 222(h)(4); see also 47 C.F.R. § 64.3000(c).
5
See 47 U.S.C. §§ 1403(a), 1473(b).
6
Pub L. No. 102-243, § 2(9) (1991). As its very name makes clear, the Telephone Consumer Protection Act is a
broad “consumer protection” statute that addresses the telemarketing practices not just of bad actors attempting to
perpetrate frauds, but also of “legitimate businesses” employing calling practices that consumers find objectionable.
See, e.g., Commissioner Pai Dissent at 2. The TCPA makes it unlawful for any business—“legitimate” or not—to
make robocalls that do not comply with the provisions of the statute. While the Commission has traditionally sought
to “reasonably accommodate[] individuals’ rights to privacy as well as the legitimate business interests of
telemarketers,” Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Docket
No. 92-90, Report and Order, 7 FCC Rcd 8752, 8754, para. 3 (1992) (1992 TCPA Order), we have not viewed
“legitimate” businesses as somehow exempt from the statute, nor do we do so today.
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Federal Communications Commission FCC 15-72
· Strengthen the core protections of the TCPA by confirming that:
o Callers cannot avoid obtaining consumer consent for a robocall simply because they
are not “currently” or “presently” dialing random or sequential phone numbers;
o 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;
o 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;
o Internet-to-phone text messages require consumer consent; and
o Text messages are “calls” subject to the TCPA, as previously determined by the
Commission.
· Empower consumers to stop unwanted calls by confirming that:
o Consumers may revoke consent at any time and through any reasonable means; and
o 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.
· Recognize the legitimate interests of callers by:
o Clarifying that application providers that play a minimal role in sending text
messages are not per se liable for unwanted robocalls;
o Clarifying that when collect-call services provide consumers with valuable call set-up
information, those providers are not liable for making unwanted robocalls;
o Clarifying that “on demand” text messages sent in response to a consumer request are
not subject to TCPA liability;
o Waiving our 2012 “prior express written consent” rule for certain parties for a limited
period of time to allow them to obtain updated consent;
o Exempting certain free, pro-consumer financial- and healthcare-related messages
from the consumer-consent requirement, subject to strict conditions and limitations to
protect consumer privacy; and
o Providing and reiterating guidance regarding the TCPA and our rules, empowering
callers to mitigate litigation through compliance and dispose of litigation quickly
where they have complied.
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Federal Communications Commission FCC 15-72
3. With this Declaratory Ruling and Order, we address 19 petitions
7
filed by American
Association of Healthcare Administrative Management (AAHAM), American Bankers Association
(ABA), Coalition of Mobile Engagement Providers (Coalition), Consumer Bankers Association (CBA),
Direct Marketing Association (DMA), Paul D. S. Edwards (Edwards), Milton H. Fried, Jr., and Richard
Evans (Fried and Evans), Glide Talk, Ltd. (Glide), Global Tel*Link Corporation (GTL), Professional
Association for Customer Engagement (PACE), Retail Industry Leaders Association (RILA), Revolution
Messaging (Revolution Messaging), Rubio’s Restaurant, Inc. (Rubio’s), Santander Consumer USA, Inc.
(Santander), Stage Stores, Inc. (Stage), TextMe, Inc. (TextMe), United Healthcare Services, Inc. (United),
YouMail, Inc. (YouMail), and 3G Collect, Inc., and 3G Collect LLC (3G Collect). We also address a
letter from the National Association of Attorneys General (NAAG), requesting clarification.
8
Finally, we
decline to grant a petition for rulemaking filed by ACA International (ACA).
9
Because of the significant
similarity of issues between some of the petitions, we address them together by issue rather than
individually.
10
7
American Association of Healthcare Administrative Management, Petition for Expedited Declaratory Ruling and
Exemption, CG Docket No. 02-278, filed Oct. 21, 2014 (AAHAM Petition); American Bankers Association, Petition
for Exemption, CG Docket No. 02-278, filed Oct. 14, 2014 (ABA Petition); Coalition of Mobile Engagement
Providers, Petition for Declaratory Ruling, CG Docket No. 02-278, filed Oct. 17, 2013 (Coalition Petition);
Consumer Bankers Association, Petition for Declaratory Ruling, CG Docket No. 02-27, filed Sept. 19, 2013 (CBA
Petition); Direct Marketing Association, Petition for Forbearance, CG Docket No. 02-278, filed Oct. 17, 2013;
Direct Marketing Association, Emergency Petition for Special Temporary Relief, CG Docket No. 02-278, filed Oct.
17, 2013 (together DMA Petition); Paul D. S. Edwards, Petition for Expedited Clarification and Declaratory Ruling,
CG Docket No. 02-278, filed Jan. 12, 2009 (Edwards Petition); Milton H. Fried, Jr., and Richard Evans, Petition for
Expedited Declaratory Ruling, CG Docket No. 02-278, filed May 27, 2014 (Fried Petition); Glide Talk, Ltd.,
Petition for Expedited Declaratory Ruling, CG Docket No. 02-278, filed Oct. 28, 2013 (Glide Petition); Global
Tel*Link, Petition for Expedited Clarification and Declaratory Ruling, CG Docket No. 02-278, filed March 4, 2010
(GTL Petition); Professional Association for Customer Engagement, Petition for Expedited Declaratory Ruling
and/or Expedited Rulemaking, CG Docket No. 02-278, filed Oct. 18, 2013 (PACE Petition); Retail Industry Leaders
Association, Petition for Declaratory Ruling, CG Docket No. 02-278, filed Dec. 30, 2013 (RILA Petition);
Revolution Messaging, Petition for Expedited Clarification and Declaratory Ruling, CG Docket No. 02-278, filed
Jan. 19, 2012 (Revolution Petition); Rubio’s Restaurant, Inc., Petition for Expedited Declaratory Ruling, CG Docket
No. 02-278, filed Aug. 15, 2014 (Rubio’s Petition); Santander Consumer USA, Inc., Petition for Expedited
Declaratory Ruling, CG Docket No. 02-278, filed July 10, 2014 (Santander Petition); Stage Stores, Inc., Petition for
Expedited Declaratory Ruling, CG Docket No. 02-278, filed June 4, 2014 (Stage Petition); TextMe, Inc., Petition for
Expedited Declaratory Ruling and Clarification, CG Docket No. 02-278, filed Mar. 18, 2014 (TextMe Petition);
United Healthcare Services, Inc., Petition for Expedited Declaratory Ruling, CG Docket No. 02-278, filed Jan. 16,
2014 (United Petition); YouMail, Inc., Petition for Expedited Declaratory Ruling, CG Docket No. 02-278, filed April
19, 2013 (YouMail Petition); 3G Collect Inc., and 3G Collect LLC, , Petition for Expedited Declaratory Ruling, CG
Docket No. 02-278, filed Oct. 28, 2011 (3G Collect Petition).
8
Letter from Indiana Attorney General Greg Zoeller et al. to Tom Wheeler, Chairman, Federal Communications
Commission (Sept. 9, 2014) (additional signatories include Attorneys General from Alaska, Arizona, Arkansas,
Colorado, Connecticut, District of Columbia, Florida, Guam, Hawaii, Idaho, Illinois, Iowa, Kentucky, Maine,
Maryland, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Mexico, North
Carolina, North Dakota, Ohio, Oregon, Pennsylvania, Puerto Rico, Rhode Island, South Dakota, Tennessee, Utah,
Vermont, Virginia, Washington, West Virginia, and Wyoming) (NAAG Letter).
9
ACA International, Petition for Rulemaking, RM No. 11712 (filed Feb.11, 2014) (ACA Petition). The ACA
Petition specifically asks the Commission to “initiate a rulemaking to address significant issues related to the
application of the [TCPA].” Id. at 1; see also id. at 18. The Commission issued a Public Notice regarding the ACA
Petition for Rulemaking. See Consumer and Governmental Affairs Bureau Reference Information Center Petition
for Rulemaking Filed, Report No. 2999, RM No. 11712 (Feb. 21, 2014). See Appendix U for a list of all
commenters on the ACA Petition.
10
The Petitions and Letter filed by AAHAM, ABA, Coalition, CBA, DMA, Edwards, Fried and Evans, Glide, GTL,
NAAG, PACE, RILA, Revolution Messaging, Rubio’s, Santander, Stage, TextMe, United, YouMail, and 3G Collect
(continued....)
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Federal Communications Commission FCC 15-72
II. BACKGROUND
4. Congress enacted the TCPA in 1991 to address certain practices thought to be an invasion
of consumer privacy and a risk to public safety.
11
The TCPA and the Commission’s implementing rules
prohibit: (1) making telemarketing calls using an artificial or prerecorded voice to residential telephones
without prior express consent;
12
and (2) making any non-emergency call using an automatic telephone
dialing system (“autodialer”) or an artificial or prerecorded voice to a wireless telephone number without
(...continued from previous page)
were filed individually, and the Commission sought comment on each Petition and Letter individually. See
Consumer and Governmental Affairs Bureau Seeks Comment on Petition for Expedited Declaratory Ruling and
Exemption From American Association of Healthcare Administrative Management, CG Docket No. 02-278, Public
Notice, 29 FCC Rcd 15267 (2014); Consumer and Governmental Affairs Bureau Seeks Comment on Petition for
Exemption Filed by American Bankers Association, CG Docket No. 02-278, Public Notice, 29 FCC Rcd 13673
(2014); Consumer and Governmental Affairs Bureau Seeks Comment on Petition for Declaratory Ruling from a
Coalition of Mobile Engagement Providers, CG Docket No. 02-278, Public Notice, 28 FCC Rcd 15100 (2013);
Consumer and Governmental Affairs Bureau Seeks Comment on Petition for Declaratory Ruling From Consumer
Bankers Association, CG Docket No. 02-278, Public Notice, 29 FCC Rcd 12683 (2014); Consumer and
Governmental Affairs Bureau Seeks Comment on Petition for Forbearance from the Direct Marketing Association,
CG Docket No. 02-278, Public Notice, 28 FCC Rcd 15103 (2013); Consumer and Governmental Affairs Bureau
Seeks Comment on Paul D. S. Edwards’s Petition for an Expedited Clarification and Declaratory Ruling, CG
Docket No. 02-278, Public Notice, 24 FCC Rcd 2907 (2009); Consumer and Governmental Affairs Bureau Seeks
Comment on Petition for Expedited Declaratory Ruling on Autodialer Issue From Milton H. Fried, Jr. and Richard
Evans, CG Docket No. 02-278, Public Notice, 29 FCC Rcd 8229 (2014);Consumer and Governmental Affairs
Bureau Seeks Comment on Petition for Expedited Declaratory Ruling Filed by Glide Talk, Ltd., CG Docket No. 02-
278, Public Notice, 28 FCC Rcd 16336 (2013); Consumer and Governmental Affairs Bureau Seeks Comment on
Global Tel*Link Corporation’s Petition for Expedited Clarification and Declaratory Ruling, CG Docket No. 02-
278, Public Notice, 25 FCC Rcd 7084 (2010); Consumer and Governmental Affairs Bureau Seeks Comment on
Robocalls and Call-blocking Issues Raised by the National Association of Attorneys General on Behalf of Thirty-
Nine Attorneys General, CG Docket No. 02-278, WC Docket No. 07-135, Public Notice, 29 FCC Rcd 14329 (2014);
Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991; Establishing Just and
Reasonable Rates for Local Exchange Carriers, CG Docket No. 02-278, WC Docket No. 07-135, Order, 29 FCC
Rcd 15273 (2014) (extending comment and reply comment deadlines); Consumer and Governmental Affairs Bureau
Seeks Comment on Petition for Expedited Declaratory Ruling and/or Expedited Rulemaking from The Professional
Association for Customer Engagement, CG Docket No. 02-278, Public Notice, 28 FCC Rcd 15869 (2013);
Consumer and Governmental Affairs Bureau Seeks Comment on Petition for Declaratory Ruling Filed by Retail
Industry Leaders Association, CG Docket No. 02-278, Public Notice, 29 FCC Rcd 459 (2014);Consumer and
Governmental Affair Bureau Seeks Comment on Petition for Expedited Clarification and Declaratory Ruling from
Revolution Messaging, LLC, CG Docket No. 02-278, Public Notice, 27 FCC Rcd 13265 (2012); Consumer and
Governmental Affairs Bureau Seeks Comment on Petition for Expedited Declaratory Ruling Filed by Rubio’s
Restaurant, Inc., CG Docket No. 02-278, Public Notice, 29 FCC Rcd 10106 (2014); Consumer and Governmental
Affairs Bureau Seeks Comment on Petition for Expedited Declaratory Ruling Filed by Santander Consumer USA,
Inc., CG Docket No. 02-278, Public Notice, 29 FCC Rcd 9433 (2014);Consumer and Governmental Affairs Bureau
Seeks Comment on Petition for Expedited Declaratory Ruling Filed by Stage Stores, Inc., CG Docket No. 02-278,
Public Notice, 29 FCC Rcd 8220 (2014); Consumer and Governmental Affairs Bureau Seeks Comment on Petition
for Expedited Declaratory Ruling filed by TextMe, Inc., CG Docket No. 02-278, Public Notice, 29 FCC Rcd 3709
(2014); Consumer and Governmental Affairs Bureau Seeks Comment on Petition for Expedited Declaratory Ruling
from United Healthcare Services, Inc., CG Docket No. 02-278, Public Notice, 29 FCC Rcd 1160 (2014); Consumer
and Governmental Affairs Bureau Seeks Comment on Petition for Expedited Declaratory Ruling from YouMail, Inc.,
CG Docket No. 02-278, Public Notice, 28 FCC Rcd 9013 (2013); Consumer and Governmental Affairs Bureau
Seeks Comment on Petition for Expedited Declaratory Ruling From 3G Collect, CG Docket No. 02-278, Public
Notice, 27 FCC Rcd 13317 (2012).
11
See 47 U.S.C. § 227; 1992 TCPA Order, 7 FCC Rcd at 8753, para. 2.
12
47 U.S.C § 227(b)(1)(B); 47 C.F.R. § 64.1200(a)(3). Certain calls, such as those by or on behalf of a tax-exempt
nonprofit organization or calls subject to the Health Insurance Portability and Accountability Act of 1996 (HIPAA),
may be made without the prior express written consent of the called party. 47 C.F.R. § 64.1200(a)(3).
7967
Federal Communications Commission FCC 15-72
prior express consent.
13
If the call includes or introduces an advertisement or constitutes telemarketing,
consent must be in writing. If an autodialed or prerecorded call to a wireless number is not for such
purposes, the consent may be oral or written.
14
Since the TCPA’s passage in 1991, the Commission has
taken multiple actions implementing and interpreting the TCPA,
15
and has issued numerous Declaratory
Rulings clarifying specific aspects of the TCPA.
16
In implementing the TCPA,
17
the Commission sought
13
47 U.S.C § 227(b)(1)(A); 47 C.F.R. § 64.1200(a)(1). This restriction also applies to such calls directed to
emergency numbers and other specified locations. For autodialed or prerecorded-voice telemarketing calls to
wireless numbers, prior express consent must be written. 2012 TCPA Order, 27 FCC Rcd at 1838, para. 20. We do
not disturb the Commission’s earlier decision that the TCPA’s restrictions do not cover calls from wireless carriers
to their customers. See 1992 TCPA Order, 7 FCC Rcd at 8775, paras. 43, 45; 2012 TCPA Order, 27 FCC Rcd at
1834, 1840, paras. 10, 27; Ex Parte Letter from Krista Witanowski, CTIA – The Wireless Association, to Marlene
H. Dortch, Secretary, FCC in CG Docket No. 02-278 (filed June 5, 2015).
14
47 C.F.R. § 64.1200(a).
15
See 1992 TCPA Order, 7 FCC Rcd 8752 (establishing safeguards for avoiding unwanted telephone solicitations to
residences, and to restrict the use of automatic telephone dialing systems, prerecorded- or artificial-voice messages,
and telephone facsimile machines); Rules and Regulations Implementing the Telephone Consumer Protection Act of
1991, CG Docket No.92-90, Memorandum Opinion and Order, 10 FCC Rcd 12391 (1995) (1995 TCPA Order)
(clarifying rules with respect to debt collection calls, established business relationship, and facsimile service
providers); Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Docket No.
92-90, Order on Further Reconsideration, 12 FCC Rcd 4609 (1997) (stating that a message sent by a facsimile
broadcast service provider must contain the identification and telephone number of the entity on whose behalf the
message was sent); 2003 TCPA Order, 18 FCC Rcd 14014 (establishing the National Do-Not-Call Registry, setting
abandoned call rates for predictive dialers, and determining that predictive dialers fall within the definition of
automatic telephone dialing system); Rules and Regulations Implementing the Telephone Consumer Protection Act
of 1991, CG Docket No. 02-278, Order, 19 FCC Rcd 19215 (2004) (2004 TCPA Order) (creating a limited safe
harbor period from the prohibition on autodialed or prerecorded message calls to wireless numbers recently ported
from wireline service); Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG
Docket No. 02-278, Second Order On Reconsideration, 20 FCC Rcd 3788 (2005) (clarifying the application of the
established business relationship exemption and the rules on maintaining company-specific do-not-call lists); Rules
and Regulations Implementing the Telephone Consumer Protection Act of 1991, Junk Fax Prevention Act of 2005,
CG Docket Nos. 02-278, 05-338, Report and Order and Third Order on Reconsideration, 21 FCC Rcd 3787 (2006)
(addressing the established business relationship in terms of facsimile advertisements, detailing the required notice
and contact information for facsimile recipients to opt out of future transmissions from the sender, and specifying
when a request to opt out complies with the Junk Fax Prevention Act); Rules and Regulations Implementing the
Telephone Consumer Protection Act of 1991, CG Docket No. 02-278, Report and Order, 23 FCC Rcd 9779 (2008)
(extending the National Do-Not-Call Registry so that registrations remain indefinitely); Rules and Regulations
Implementing the Telephone Consumer Protection Act of 1991, Junk Fax Prevention Act of 2005, CG Docket Nos.
02-278, 05-338, Order on Reconsideration, 23 FCC Rcd 15059 (2008) (discussing when facsimile numbers will be
presumed to have been made voluntarily available for public distribution, and requiring the sender’s opt-out
mechanism be placed on the first webpage to which recipients are directed in the opt-out notice); 2012 TCPA Order
(specifying the type of consent needed for autodialed and prerecorded-voice calls to wireless and wireline numbers,
requiring in-call opt-out mechanisms for prerecorded telemarketing calls, and exempting from TCPA requirements
prerecorded calls to residential lines made by health care-related entities governed by HIPAA).
16
See, e.g., Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Request of ACA
International for Clarification and Declaratory Ruling, CG Docket No. 02-278, FCC Docket No. 07-232, 23 FCC
Rcd 559 (2008) (ACA Declaratory Ruling); Rules and Regulations Implementing the Telephone Consumer
Protection Act of 1991, SoundBite Communications, Inc., Petition for Expedited Declaratory Ruling, CG Docket
No. 02-278, Declaratory Ruling, 27 FCC Rcd 15391 (2012) (SoundBite Declaratory Ruling); Joint Petition filed by
DISH Network, LLC, The United States of America, and the States of California, Illinois, North Carolina, and Ohio
for Declaratory Ruling Concerning the Telephone Consumer Protection Act (TCPA) Rules, et. al., CG Docket No.
11-50, Declaratory Ruling, 28 FCC Rcd 6574, 6574, para. 1 (2013) (DISH Declaratory Ruling).
17
Unless context or the text indicates otherwise, the term “TCPA” is used herein to refer collectively to the statute
as interpreted and implemented in our rules and orders.
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Federal Communications Commission FCC 15-72
to “reasonably accommodate[] individuals’ rights to privacy as well as the legitimate business interests of
telemarketers”
18
and other callers.
19
Apart from the Commission’s enforcement, the law grants consumers
a private right of action, with provision for $500 or the actual monetary loss in damages for each
violation, whichever is greater, and treble damages for each willful or knowing violation.
20
5. Despite the Commission’s efforts to protect consumers without inhibiting legitimate
business communications, TCPA complaints as a whole are the largest category of informal complaints
we receive.
21
Between 2010 and 2012, consumer complaints about calls to wireless phones doubled, to an
average of over 10,000 complaints per month in 2012.
22
In 2013 and 2014, the Commission received
roughly 5,000 or 6,000 such complaints per month, lower than in 2011 and 2012, but still a substantial
monthly total that is persistently one of the top consumer concerns.
23
The Federal Trade Commission
(FTC) reports that it received “approximately 63,000 complaints about illegal robocalls each month”
during the fourth quarter of 2009, but that “[b]y the fourth quarter of 2012, robocall complaints had
peaked at more than 200,000 per month.”
24
Other sources corroborate the trend; for example, Consumer
Federation of America recently ranked do-not-call and telemarketing abuse issues as number eight on its
list of complaints, the fastest-growing complaint subject in 2013.
25
6. It appears that the number of TCPA private right of action lawsuits is increasing as well.
26
Petitioners and commenters have reported an increase in the number of TCPA-related individual and
18
1992 TCPA Order, 7 FCC Rcd at 8754, para. 3.
19
See Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Cargo Airline
Association Petition for Expedited Declaratory Ruling, CG Docket No. 02-278, 29 FCC Rcd 3432 at *6, para. 19
(2014) (Cargo Airline Order). The TCPA and Commission rules establish other consumer protections not directly
relevant to this order including: restrict the use of facsimile (fax) machines for unsolicited advertisements (§
64.1200(a)(4)); specify identifying information and opt-out mechanisms that must be included in an artificial- or
prerecorded-voice call (§ 64.1200(b)); set time-of-day restrictions for placing solicitation telephone calls (§
64.1200(c)(1)); and outline procedures for compliance with the National Do-Not-Call Registry (§ 64.1200(c)(2)).
20
47 U.S.C § 227(b)(3).
21
See Federal Communications Commission Encyclopedia, Quarterly Reports-Consumer Inquiries and Complaints,
Top Complaint Subjects, available at http://www.fcc.gov/encyclopedia/quarterly-reports-consumer-inquiries-and-
complaints (last visited May 18, 2015).
22
See Federal Communications Commission Encyclopedia, Quarterly Reports-Consumer Inquiries and Complaints,
available at http://www.fcc.gov/encyclopedia/quarterly-reports-consumer-inquiries-and-complaints (last visited
May 18, 2015).
23
See id. The average number of monthly complaints about TCPA violations associated with wireless phones was
4,373 in 2010; 7,661 in 2011; 10,144 in 2012; 6,032 in 2013; and 5,339 for the first three quarters of 2014. Id.
24
Federal Trade Commission Staff’s Comments on Public Notice DA 14-1700 Regarding Call Blocking, CG
Docket No. 02-278, WC Docket No. 07-135, at 2 n.5 (Jan. 23, 2015). The FTC also reports that, “[f]rom October
2013 to September 2014, [it] received an average of 261,757 do-not-call complaints per month, of which
approximately 55% (144,550 per month) were complaints about robocalls.” Id. at 2 n.4.
25
Consumer Federation of America North American Consumer Protection Investigators 2013 Consumer Complaint
Survey Report (July 30, 2014), available at http://www.consumerfed.org/pdfs/2013-consumer-survey-report.pdf
(last visited May 18, 2015).
26
See AFSA Comments on Glide Petition at 3 (TCPA lawsuits up 116 percent between Sept. 2012 and Sept. 2013);
United Reply Comments on United Petition at 17 (in Jan. 2014, 208 TCPA cases were filed, an increase of 30
percent from previous year). These widely varying estimates regarding increases in TCPA litigation are difficult to
compare or confirm. The Commission usually does not participate in such litigation, although it sometimes files
amicus briefs.
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Federal Communications Commission FCC 15-72
class-action lawsuits.
27
Commenter American Financial Services Association reports that “TCPA
lawsuits were up 116 percent in September 2013 compared to September 2012. Echoing that trend, year-
to-date TCPA lawsuits have increased 70 percent in 2013.”
28
7. Parties who want to reach consumers using automated dialing technologies have sought
clarification on an array of TCPA issues. Dialing options can now be cloud-based,
29
and available via
smartphone apps. Calling and texting consumers en masse has never been easier or less expensive.
30
With that backdrop, the Commission received 27 petitions for declaratory ruling or rulemaking that raised
TCPA questions about autodialed calls from the beginning of 2012 through the end of 2014.
31
The rise in
complaints, litigation, and petitions may also be attributable to the skyrocketing growth of mobile phones,
rising from approximately 140 million wireless subscriber connections in 2002 to approximately 326
million in 2012.
32
Additionally, 39 percent of adults were wireless-only in the second half of 2013,
compared to fewer than three percent of adults at the beginning of 2003.
33
8. These changes have placed increased attention on the TCPA’s heightened protections for
27
See, e.g., ABA Petition at 7-8; CBA Petition at 10-11; Coalition Petition at 12; Communication Innovators (CI)
Petition at 15; Glide Petition at 9; PACE Petition at 6; RILA Petition at 9-10. See n. 42, infra, for information on
CI’s withdrawal of its Petition.
28
AFSA Comments on Glide Petition at 3.
29
The National Institute of Standards and Technology defines “cloud computing” as “a model for enabling
ubiquitous, convenient, on-demand network access to a shared pool of configurable computing resources (e.g.,
networks, servers, storage, applications, and services) that can be rapidly provisioned and released with minimal
management effort or service provider interaction.” Peter Mell & Timothy Grance, The NIST Definition of Cloud
Computing: Recommendations of the National Institute of Standards and Technology 2 (Sept. 2011), available at
http://csrc.nist.gov/publications/nistpubs/800-145/SP800-145.pdf (last visited May 18, 2015).
30
See, e.g., Ex Parte Letter from Mark W. Brennan, Counsel to Communication Innovators, to Marlene H. Dortch,
Secretary, FCC in CG Docket No. 02-278, at Attachment A (filed May 10, 2013) (providing additional technical
details about predictive dialers); Revolution Petition at 5-6, 9.
31
See the Commission’s Electronic Comment Filing System, available at http://apps.fcc.gov/ecfs/ (last visited May
18, 2015).
32
Wireless Quick Facts, CTIA: The Wireless Association, available at http://www.ctia.org/your-wireless-life/how-
wireless-works/wireless-quick-facts (last visited May 18, 2015). “Wireless subscriber connections” include
smartphones, feature phones, tablets, etc. Id. The Organisation for Economic Co-operation and Development
(OECD) reports that, in June 2013, the United States had 299,447,000 wireless broadband subscriptions. See OECD
Broadband Statistics, available at http://www.oecd.org/internet/broadband/oecdbroadbandportal.htm (last visited
May 18, 2015).
33
Stephen J. Blumberg and Julian V. Luke, Wireless Substitution: Early Release of Estimates From the National
Health Interview Survey, July–December 2013, Division of Health Interview Statistics, National Center for Health
Statistics, July 2014, at 2; Stephen J. Blumberg and Julian V. Luke, Wireless Substitution: Early Release of
Estimates From the National Health Interview Survey, January–June 2013, Division of Health Interview Statistics,
National Center for Health Statistics, Dec. 2013, at 1; Stephen J. Blumberg and Julian V. Luke, NCHS Health E-
Stat, Wireless Substitution: Preliminary Data from the 2005 National Health Interview Survey, at chart, available at
http://www.cdc.gov/nchs/data/hestat/wireless2005/wireless2005.htm (last visited May 18, 2015). The
Commission’s analysis of wireless data demonstrates that the number of adults who rely exclusively on mobile
wireless for voice service has increased significantly in recent years to approximately 32.3 percent in the second half
of 2011, compared to 27.8 percent of all adults in the second half of 2010 and 22.9 percent in the second half 2009.
See Implementation of Section 6002(b) of the Omnibus Budget Reconciliation Act of 1993 Annual Report and
Analysis of Competitive Market Conditions With Respect to Mobile Wireless, Including Commercial Mobile
Services, WT Docket 11-186, 28 FCC Rcd 3700, 3725 (2013).
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Federal Communications Commission FCC 15-72
wireless consumers.
34
While the Commission’s past interpretations have addressed nuanced aspects of
the TCPA rules, changes in how consumers use their phones, how technology can access consumers, and
the way consumers and businesses wish to make calls mean that we are presented with new issues
regarding application and interpretation of the TCPA. Through their complaints and comments,
consumers have expressed their frustration with unwanted voice calls and texts and have asked the
Commission to preserve their privacy rights under the TCPA.
35
Members of Congress, likewise, have
expressed their interest in the consumer protections of the TCPA and the TCPA petitions filed with the
Commission.
36
Through those petitions, businesses and business groups have sought clarity about the
TCPA’s consumer-privacy protections so they can offer potentially useful, innovative services in a cost-
effective, lawful manner.
37
We address both concerns here.
9. To reiterate and simplify the relevant portions of the TCPA, and as a guide to the issues
we address below: if a caller uses an autodialer or prerecorded message to make a non-emergency call to
a wireless phone, the caller must have obtained the consumer’s prior express consent or face liability for
violating the TCPA.
38
Prior express consent for these calls must be in writing if the message is
telemarketing, but can be either oral or written if the call is informational.
III. PETITIONS FOR DECLARATORY RULING AND EXEMPTION
A. Discussion
1. Autodialers
10. We reaffirm our previous statements that dialing equipment generally has the capacity to
34
See Letter from 35 Trade Associations and Business Groups to Tom Wheeler, Chairman, and Commissioners
Clyburn, Rosenworcel, Pai, and O’Rielly, Federal Communications Commission, CG Docket No. 02-278 (Feb. 2,
2015).
35
See, e.g., Ex Parte Letter from Tim Marvin, Consumers Union, to Marlene H. Dortch, Secretary, FCC in CG
Docket No. 02-278, (filed March 25, 2015) (attaching 130,000 consumer names in support of maintaining
restrictions on unsolicited, non-emergency robocalls to cell phones); Coffman Comments on Glide Petition at 7
(“Expanding the growth of the mobile app industry may be desirable, but not at the expense of the privacy rights the
TCPA is designed to protect.”); see also Letter from Sens. Edward J. Markey, Charles E. Schumer, Ron Wyden,
Claire McCaskill, Elizabeth Warren, Richard Blumenthal, Amy Klobuchar, Tammy Baldwin, Jeff Merkley, and Al
Franken, U.S. Senate, to Tom Wheeler, Chairman, FCC, at 1 (May 14, 2015).
36
Letter from Rep. Brian Bilbray, U.S. Congress, to Julius Genachowski, Chairman, FCC (Aug. 21, 2012); Letter
from Rep. Bob Filner, U.S. Congress, to Julius Genachowski, Chairman, FCC (Sept. 26, 2012); Letter from Reps.
Duncan Hunter, Scott Peters, and Juan Vargas, U.S. Congress, to Mignon L. Clyburn, Acting Chairwoman, FCC
(June 19, 2013); Letter from Rep. David B. McKinley, U.S. Congress, to Tom Wheeler, Chairman, FCC (Jan. 27,
2014); Letter from Reps. Marsha Blackburn, Blaine Luetkemeyer, John Kline, Pete Olson, Mike Pompeo, Andy
Barr, Michael Burgess, David McKinley, Diane Black, Jackie Walorski, Robert Hurt, Steve Stivers, Brad Wenstrup,
Phil Gingrey, and Tim Walberg, U.S. Congress, to Tom Wheeler, Chairman, FCC (Aug. 1, 2014); Letter from Reps.
David Price, G.K. Butterfield, and Renee Ellmers, U.S. Congress, to Tom Wheeler, Chairman, FCC (Jan. 8, 2015)
(letter is misdated as Jan. 8, 2014); Letter from Sens. Edward J. Markey, Charles E. Schumer, Ron Wyden, Claire
McCaskill, Tammy Baldwin, Barbara Boxer, Richard Blumenthal, Elizabeth Warren, Bernard Sanders, Kristen
Gillibrand, Jeff Merkley, Amy Klobuchar, Sheldon Whitehouse, and Al Franken, U.S. Senate, to Tom Wheeler,
Chairman, FCC (Jan. 28, 2015); Letter from Rep. Tim Huelskamp, U.S. Congress, to Tom Wheeler, Chairman, FCC
(Feb. 6, 2015); Letter from Rep. Scott R. Tipton, U.S. Congress, to Tom Wheeler, Chairman, FCC (April 2, 2015);
Letter from Sens. Edward J. Markey, Charles E. Schumer, Ron Wyden, Claire McCaskill, Elizabeth Warren,
Richard Blumenthal, Amy Klobuchar, Tammy Baldwin, Jeff Merkley, and Al Franken, U.S. Senate, to Tom
Wheeler, Chairman, FCC (May 14, 2015); Letter from Reps. Gus Bilirakis, Jerry McNerney, Leonard Lance, and
Tony Cardenas, U.S. Congress, to Tom Wheeler, Chairman, FCC (June 11, 2015).
37
See, e.g., Glide Petition at 1-2; YouMail Petition at 14-15; United Petition at 2-3; see also Glide Reply Comments
on Glide Petition at 8; Twilio Comments on Glide Petition at 6.
38
See 2012 TCPA Order, 27 FCC Rcd at 1838-44, paras. 20-33.
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Federal Communications Commission FCC 15-72
store or produce, and dial random or sequential numbers (and thus meets the TCPA’s definition of
“autodialer”) even if it is not presently used for that purpose, including when the caller is calling a set list
of consumers. We also reiterate that predictive dialers, as previously described by the Commission,
39
satisfy the TCPA’s definition of “autodialer” for the same reason.
40
We also find that callers cannot avoid
obtaining consent by dividing ownership of pieces of dialing equipment that work in concert among
multiple entities.
41
11. Glide, PACE, and TextMe
42
ask whether dialing equipment is an autodialer under the
TCPA when it does not have the “current capacity” or “present ability” to generate or store random or
sequential numbers or to dial sequentially or randomly at the time the call is made. Glide asks the
Commission to clarify that “equipment used to make a call is an autodialer subject to the TCPA only if it
is capable of storing or generating sequential or randomized numbers at the time of the call.”
43
PACE
seeks clarification that a dialing system’s “capacity” is “limited to what it is capable of doing, without
further modification, at the time the call is placed.”
44
TextMe asks the Commission to clarify that
“capacity” “encompasses only equipment that, at the time of use, could in fact perform the functions
described in the TCPA without human intervention and without first being technologically altered.”
45
12. The TCPA defines “automatic telephone dialing system” as “equipment which has the
capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number
39
In its 2003 Declaratory Ruling, the Commission mentioned certain characteristics that, it was argued, removed
equipment having those characteristics from the scope of the statutory autodialer definition. The Commission
described a predictive dialer as “equipment that dials numbers and, when certain computer software is attached, also
assists telemarketers in predicting when a sales agent will be available to take calls. The hardware, when paired
with certain software, has the capacity to store or produce numbers and dial those numbers at random, in sequential
order, or from a database of numbers.” 2003 TCPA Order, 18 FCC Rcd at 14091, para. 131. The Commission also
noted that the “principal feature of predictive dialing software is a timing function, not number storage or
generation.” Id. After discussing the TCPA’s definition of “autodialer” and Congress’ intent in creating the TCPA,
the Commission found that “a predictive dialer falls within the meaning and statutory definition of ‘automatic
telephone dialing equipment’ and the intent of Congress.” Id. at 14091-92, paras. 132-33. The Commission’s
finding that predictive dialers fall within the statutory autodialer definition thus focuses on whether equipment has
the requisite “capacity,” and therefore is not limited to any specific piece of equipment and is without regard to the
name given the equipment for marketing purposes.
40
See paras. 16-20, infra; see also ACA Declaratory Ruling, 23 FCC Rcd at 566, para. 13.
41
See para. 23, infra.
42
YouMail also raised this question in its Petition. See YouMail Petition at 11. It later requested that the
Commission “set aside consideration of the ATDS argument originally raised in its Petition.” Ex Parte Letter from
Lauren Lynch Flick, Counsel to YouMail, to Marlene H. Dortch, Secretary, FCC in CG Docket No. 02-278, at 5
(filed April 14, 2014). CI also raised this issue in a Petition for Declaratory Ruling. Communication Innovators,
Petition for Declaratory Ruling, CG Docket No. 02-278, filed June 7, 2012 (CI Petition). CI withdrew its Petition
after the Commission sought comment on the issues raised in the Petition. Consumer and Governmental Affairs
Bureau Seeks Comment on Petition for Declaratory Ruling from Communication Innovators, CG Docket No. 02-
278, Public Notice, 27 FCC Rcd 13031 (2012); Communication Innovators, Withdrawal of Petition, CG Docket No.
02-278, filed July 14, 2014. Comments submitted in response to that Public Notice remain part of the record in this
docket, and reveal continued questions about this issue beyond the CI Petition itself. See Appendix V for a list of all
commenters on the CI Petition.
43
Glide Petition at 10.
44
PACE Petition at 4 (emphasis omitted).
45
TextMe Petition at 3.
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Federal Communications Commission FCC 15-72
generator; and (B) to dial such numbers.”
46
In the 2003 TCPA Order, the Commission found that, in
order to be considered an “automatic telephone dialing system,” the “equipment need only have the
‘capacity to store or produce telephone numbers.’”
47
The Commission stated that, even when dialing a
fixed set of numbers, equipment may nevertheless meet the autodialer definition.
48
13. In the 2003 TCPA Order, the Commission described a predictive dialer as “equipment
that dials numbers and, when certain computer software is attached, also assists telemarketers in
predicting when a sales agent will be available to take calls. The hardware, when paired with certain
software, has the capacity to store or produce numbers and dial those numbers at random, in sequential
order, or from a database of numbers.”
49
In the 2008 ACA Declaratory Ruling, the Commission
“affirm[ed] that a predictive dialer constitutes an automatic telephone dialing system and is subject to the
TCPA’s restrictions on the use of autodialers.”
50
The Commission considered ACA’s argument that a
predictive dialer is an autodialer “only when it randomly or sequentially generates telephone numbers, not
when it dials numbers from customer telephone lists,”
51
and stated that ACA raised “no new information
about predictive dialers that warrant[ed] reconsideration of these findings” regarding the prohibited uses
of autodialers—and therefore predictive dialers—under the TCPA.
52
14. The Commission declined to distinguish between calls to wireless telephone numbers
made by dialing equipment “paired with predictive dialing software and a database of numbers” and calls
made “when the equipment operates independently of such lists and software packages.”
53
Recognizing
the developments in calling technology, the Commission found that “[t]he basic function of such
equipment, however, has not changed—the capacity to dial numbers without human intervention.”
54
The
Commission found it troubling that predictive dialers, like dialers that utilize random or sequential
numbers instead of a list of numbers, retain the capacity to dial thousands of numbers in a short period of
time and that construing the autodialer definition to exclude predictive dialers could harm public safety by
allowing such equipment to be used to place potentially large numbers of non-emergency calls to
emergency numbers, a result the TCPA was intended to prevent. The Commission concluded that the
TCPA’s unqualified use of the term “capacity” was intended to prevent circumvention of the restriction
on making autodialed calls to wireless phones and emergency numbers and found that “a predictive dialer
falls within the meaning and statutory definition of ‘automatic telephone dialing equipment’ and the intent
of Congress.”
55
46
47 U.S.C. § 227(a)(1); see also 47 C.F.R. § 64.1200(f)(2) (“The terms automatic telephone dialing system and
autodialer mean equipment which has the capacity to store or produce telephone numbers to be called using a
random or sequential number generator and to dial such numbers.”).
47
2003 TCPA Order, 18 FCC Rcd at 14092, para. 132 (emphasis in original).
48
Id. at para. 133.
49
2003 TCPA Order, 18 FCC Rcd at 14091, para. 131.
50
ACA Declaratory Ruling, 23 FCC Rcd at 566, para. 12.
51
Id.
52
Id. at 23 FCC Rcd at 566-67, para. 14.
53
2003 TCPA Order, 18 FCC Rcd at 10492, para. 133.
54
Id. at para. 132.
55
Id. at 18 FCC Rcd at 14091-93, paras. 132-33. See supra n. 39 for details of the Commission’s description of
predictive dialers. We reiterate that the Commission’s finding that predictive dialers fall within the statutory
autodialer definition focuses on whether equipment has the requisite “capacity,” and therefore is not limited to any
specific piece of equipment and is without regard to the name given the equipment for marketing purposes. See also
Ex Parte Letter from Ellen Taverna and Margot Saunders, Counsel to National Association of Consumer Advocates
and National Consumer Law Center, to Marlene H. Dortch, Secretary, FCC in CG Docket No. 02-278 (filed Feb. 19,
2015) (The ex parte filing on behalf of eight organizations includes a list of 58,000 individuals who support the
(continued....)
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Federal Communications Commission FCC 15-72
15. We agree with commenters who argue that the TCPA’s use of “capacity” does not
exempt equipment that lacks the “present ability” to dial randomly or sequentially. We agree that
Congress intended a broad definition of autodialer,
56
and that the Commission has already twice
addressed the issue in 2003 and 2008,
57
stating that autodialers need only have the “capacity” to dial
random and sequential numbers, rather than the “present ability” to do so.
58
Hence, any equipment that
has the requisite “capacity”
59
is an autodialer and is therefore subject to the TCPA.
60
16. In the 1992 TCPA Order, the Commission stated that it was rejecting definitions that fit
“only a narrow set of circumstances” in favor of “broad definitions which best reflect[ed] legislative
intent by accommodating the full range of telephone services and telemarketing practices.”
61
The
Commission rejected the narrower interpretation of “capacity” (as “current ability”) when it held that
predictive dialer equipment meets the autodialer definition. In the 2003 TCPA Order, the Commission
held that predictive dialers met the definition of an autodialer because that “hardware, when paired with
certain software, has the capacity to store or produce numbers and dial those numbers at random, in
sequential order, or from a database of numbers.”
62
By finding that, even when the equipment presently
lacked the necessary software, it nevertheless had the requisite capacity to be an autodialer, the
Commission implicitly rejected any “present use” or “current capacity” test. In other words, the capacity
of an autodialer is not limited to its current configuration but also includes its potential functionalities.
63
One dissent argues that our reading of “capacity” is flawed in the same way that saying an 80,000 seat
stadium has the capacity to hold 104,000.
64
But that is an inapt analogy—modern dialing equipment can
often be modified remotely without the effort and cost of adding physical space to an existing structure.
Indeed, adding space to accommodate 25 percent more people to a building is the type of mere
“theoretical” modification that is insufficient to sweep it into our interpretation of “capacity.”
65
17. Given the scope of the Petitioners’ requests, we do not at this time address the exact
(...continued from previous page)
statement: “Tell the FCC: No robocalls to cell phones without our consent.” The list includes a de minimis number
of signatures for which an address in Canada is given.).
56
See, e.g., Kirby Comments on CI Petition at 1; Roylance Comments on CI Petition at 2; Shields Comments on
Glide Petition at 5; see also Shields Reply Comments on YouMail Petition at 3. See Appendix S for a list of all
commenters on the YouMail Petition.
57
See, e.g., Shields Comments on CI Petition at 1; Worsham Comments on CI Petition at 1; see also Roylance
Comments on YouMail Petition at 2; Shields Comments on YouMail Petition at 1.
58
See paras. 12-14, supra. In response to an argument raised in a dissenting statement, see Commissioner Pai
Dissent at 3-4, we reiterate that the Commission’s 2003 and 2008 statements referenced here focused not on
equipment’s present ability to dial randomly or sequentially, but instead on its capacity and the generally automated
nature of the calling. See 2003 TCPA Order, 18 FCC Rcd at 14092-93, para. 133 (purpose of capacity requirement
is to avoid circumvention of autodialing restrictions). The Commission specifically focused on the capacity to dial
automatically, not on the kinds of numbers the equipment was presently configured to dial. Id. at 14092, para. 132
(“The basic function of such equipment, however, has not changed—the capacity to dial numbers without human
intervention.”).
59
ACA Declaratory Ruling, 23 FCC Rcd at 566, para. 13.
60
See paras. 18-20, infra; see also ACA Declaratory Ruling, 23 FCC Rcd at 566, para. 12.
61
1992 TCPA Order, 7 FCC Rcd at 8755, para. 6.
62
2003 TCPA Order, 18 FCC Rcd at 14091, para. 131.
63
The functional capacity of software-controlled equipment is designed to be flexible, both in terms of features that
can be activated or de-activated and in terms of features that can be added to the equipment’s overall functionality
through software changes or updates.
64
See Commissioner Pai Dissent at 4.
65
See para. 18, infra.
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Federal Communications Commission FCC 15-72
contours of the “autodialer” definition or seek to determine comprehensively each type of equipment that
falls within that definition that would be administrable industry-wide. Rather, we reiterate what the
Commission has previously stated regarding the parameters of the definition of “autodialer.” First, the
Commission found in its original TCPA proceeding that the “prohibitions of [section] 227(b)(1) clearly
do not apply to functions like ‘speed dialing.’”
66
Second, the Commission has also long held that the
basic functions of an autodialer are to “dial numbers without human intervention” and to “dial thousands
of numbers in a short period of time.”
67
How the human intervention element applies to a particular piece
of equipment is specific to each individual piece of equipment, based on how the equipment functions and
depends on human intervention, and is therefore a case-by-case determination.
18. We do, however, acknowledge that there are outer limits to the capacity of equipment to
be an autodialer. As is demonstrated by these precedents, the outer contours of the definition of
“autodialer” do not extend to every piece of malleable and modifiable dialing equipment that conceivably
could be considered to have some capacity, however small, to store and dial telephone numbers—
otherwise, a handset with the mere addition of a speed dial button would be an autodialer.
68
Further,
although the Commission has found that a piece of equipment can possess the requisite “capacity” to
satisfy the statutory definition of “autodialer” even if, for example, it requires the addition of software to
actually perform the functions described in the definition,
69
there must be more than a theoretical potential
that the equipment could be modified to satisfy the “autodialer” definition. Thus, for example, it might be
theoretically possible to modify a rotary-dial phone to such an extreme that it would satisfy the definition
of “autodialer,” but such a possibility is too attenuated for us to find that a rotary-dial phone has the
requisite “capacity” and therefore is an autodialer.
19. This broad interpretation of “capacity” to include “potential ability” is consistent with
formal definitions of “capacity,” one of which defines “capacity” as “the potential or suitability for
holding, storing, or accommodating.”
70
Furthermore, interpreting “capacity” as limited to “current
capacity” or “present ability,” for which Petitioners and some commenters here argue,
71
could create
66
1992 TCPA Order, 7 FCC Rcd at 8776, para. 47.
67
2003 TCPA Order, 18 FCC Rcd at 14092, para. 132-33; see also ACA Declaratory Ruling, 23 FCC Rcd at 566,
para. 13; SoundBite Declaratory Ruling, 27 FCC Rcd at 15392, para. 2 n.5.
68
See, e.g., para. 21, infra.
69
See 2003 TCPA Order, 18 FCC Rcd at 14091-93, paras. 131-133.
70
Merriam-Webster Dictionary, available at http://www.merriam-webster.com/dictionary/capacity (last visited May
18, 2015); see Webster’s Third New International Dictionary (2002) (defining “capacity” as “potentiality for
production or use”); see also Johnson v. United States, 559 U.S. 133, 134 (2010) (when a statute does not define a
term, “give the phrase its ordinary meaning”). The fact that Congress could have “add[ed] tenses and moods” to its
definition of autodialer—and thereby defined autodialer as “equipment which has, has had, or could have the
capacity”—does not undermine our interpretation of the term. Commissioner Pai Dissent at 4. Congress chose to
use a noun—“capacity”—that itself can reasonably be read to include a sense of futurity or unrealized potentiality.
The use of this noun in conjunction with a verb (“has”) that is in the present tense does not somehow mean that the
term “capacity” must be read not to convey a sense of futurity or potentiality. Similarly, the fact that the TCPA bars
callers from using autodialers to “make any call” does not mean that the equipment must be configured such that
every functionality contained in the statutory definition of “autodialer” is installed and active at the time calls are
made and that the caller must actually be using those functionalities to place calls in order for the TCPA’s consent
requirements to be triggered. Commissioner O’Rielly Partial Dissent at 5-6. Instead, when a caller places a call
using equipment that has the requisite “capacity” (as we construe the term here), the equipment is an autodialer and
a caller using it “makes” a call “using an automatic telephone dialing system” under section 227(b)(1)(A).
71
Glide Petition at 9-13; PACE Petition at 10-12; TextMe Petition at 10-12; ABA/CBA Comments on CI Petition at
7; ACA Comments on PACE Petition at 4-7; CenturyLink Comments on CI Petition at 3; Chamber Comments on CI
Petition at 8-11; Chamber Comments on PACE Petition at 5; CI Comments on Glide Petition at 3-4; CI Comments
on PACE Petition at 3-5; CI Reply Comments on TextMe Petition at 4-5; CI Comments on YouMail Petition at 4;
Covington Comments on PACE Petition at 4-5; DIRECTV Comments on CI Petition at 8-11; DIRECTV Comments
(continued....)
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Federal Communications Commission FCC 15-72
problems for enforcing the TCPA’s privacy protections with regard to proving how a system with
multiple functions was actually used for multiple calls. As the Commission has previously recognized,
“the purpose of the requirement that equipment have the ‘capacity to store or produce telephone numbers
to be called’ is to ensure that the restriction on autodialed calls not be circumvented.”
72
20. In light of our precedent and determination that Congress intended a broad definition of
autodialer, we reject arguments
73
that: the TCPA’s language on its face does not support the claim that the
TCPA was meant to apply to devices that need to be configured to store numbers or call sequentially;
74
a
narrow reading of the TCPA is necessary to eliminate a lack of clarity regarding what constitutes an
autodialer;
75
and the term “capacity” implies present ability rather than future possibility.
76
We reiterate
that a present use or present capacity test could render the TCPA’s protections largely meaningless by
ensuring that little or no modern dialing equipment would fit the statutory definition of an autodialer. We
also reject PACE’s argument that the Commission should adopt a “human intervention” test by clarifying
that a dialer is not an autodialer unless it has the capacity to dial numbers without human intervention.
Because the Commission has previously rejected a restrictive interpretation of autodialer in favor of one
based on a piece of equipment’s potential ability, we find that PACE’s argument amounts to a simple
variation on the “present ability” arguments we reject above.
21. PACE, TextMe, and others argue that a broad interpretation of “capacity” could
potentially sweep in smartphones because they may have the capacity to store telephone numbers to be
called and to dial such numbers through the use of an app or other software.
77
Even though the
(...continued from previous page)
on PACE Petition at 2-3; Fowler Comments on PACE Petition at 1; Glide Reply Comments on PACE Petition at 6;
Global Connect Comments on CI Petition at 2; Global Comments on PACE Petition at 2; Internet Comments on
TextMe Petition at 2-3; MRA Comments on CI Petition at 4-7; NCHER Reply Comments on PACE Petition at 2;
Nicor Comments on CI Petition at Attachment at 8; Nicor Comments on PACE Petition at 7; Noble Comments on
Glide Petition at 4; Noble Comments on PACE Petition at 5; Noble Comments on TextMe Petition at 1; NSC
Comments on CI Petition at 9; Path Comments on Glide Petition at 22; Twilio Comments on Glide Petition at 13;
YouMail Reply Comments on PACE Petition at 4.
72
2003 TCPA Order, 18 FCC Rcd at 14092-93, para. 133. As GroupMe observes, for example, autodialer
functionality might be added to equipment not merely by creating new software, but even by “unlock[ing] a dormant
ATDS function.” GroupMe, Inc., Petition for Expedited Declaratory Ruling and Clarification, CG Docket No. 02-
278, filed Mar. 1, 2012, at 10.
73
See Appendix H for a list of all commenters on the Glide Petition, Appendix K for a list of all commenters on the
PACE Petition, and Appendix Q for a list of all commenters on the TextMe Petition.
74
Glide Reply Comments on Glide Petition at 5; GroupMe Comments on Glide Petition at 6-7; Twilio Comments
on Glide Petition at 13.
75
AFSA Comments on Glide Petition at 2; CI Reply Comments on TextMe Petition at 6; Internet Comments on
TextMe Petition at 3.
76
ACA Comments on PACE Petition at 4-7; Chamber Comments on PACE Petition at 5; CI Comments on Glide
Petition at 3-4; CI Comments on PACE Petition at 3-5; CI Reply Comments on TextMe Petition at 4-5; Covington
Comments on PACE Petition at 4-5; DIRECTV Comments on PACE Petition at 2-3; Fowler Comments on PACE
Petition at 1; Glide Reply Comments on PACE Petition at 6; Global Comments on PACE Petition at 2; Internet
Comments on TextMe Petition at 2-3; NCHER Reply Comments on PACE Petition at 2; Nicor Comments on PACE
Petition at 7; Noble Systems Comments on Glide Petition at 4; Noble Comments on PACE Petition at 5; Noble
Comments on TextMe Petition at 1; Path Comments on Glide Petition at 22; Twilio Comments on Glide Petition at
13; YouMail Reply Comments on PACE Petition at 4.
77
PACE Reply Comments on PACE Petition at 5; TextMe Petition at 8, 12; TextMe Reply Comments on TextMe
Petition at 7-8; ACA Comments on PACE Petition at 4; ACA Reply Comments on PACE Petition at 4-5; AFSA
Comments on PACE Petition at 2; Chamber Comments on PACE Petition at 4; CI Reply Comments on TextMe
Petition at 6; Covington Comments on PACE Petition at 5; Internet Comments on TextMe Petition at 3; iPacesetters
Comments on PACE Petition at 3; Nicor Comments on PACE Petition at 7; YouMail Reply Comments on PACE
Petition at 2.
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Federal Communications Commission FCC 15-72
Commission has interpreted “capacity” broadly since well before consumers’ widespread use of
smartphones, there is no evidence in the record that individual consumers have been sued based on typical
use of smartphone technology. Nor have these commenters offered any scenarios under which unwanted
calls are likely to result from consumers’ typical use of smartphones. We have no evidence that friends,
relatives, and companies with which consumers do business find those calls unwanted and take legal
action against the calling consumer. We will continue to monitor our consumer complaints and other
feedback, as well as private litigation, regarding atypical uses of smartphones, and provide additional
clarification if necessary.
22. Because our decision is based on the TCPA’s terms and past Commission interpretation,
we need not reach the policy arguments from Glide and other commenters,
78
such as claims related to
class-action lawsuits,
79
that could be viewed as being offered to support reversing the Commission’s prior
decisions; in a declaratory ruling we only clarify existing law or resolve controversy regarding the
interpretation or application of existing law, rules, and precedents.
23. We also find that parties cannot circumvent the TCPA by dividing ownership of dialing
equipment. In their Petition, Fried and Evans seek a ruling that a combination of equipment used by
separate entities to send text messages constitutes an autodialer under the TCPA.
80
The Petitioners in this
case received text messages from a beauty salon that had contracted with another party, Textmunications,
Inc. (Textmunications), to transmit advertisements in the form of text messages to their current and
former customers.
81
Textmunications, in turn, contracted with Air2Web, a mobile messaging aggregator,
to transmit the messages.
82
As described in the Fried Petition and the Referral Order, the beauty salon
provided customer data to Textmunications, who stored this information on its own equipment and
78
Commenters assert that clarification is warranted because of changed circumstances, including (1) an increase in
the number of households that utilize only wireless telephone service and (2) mutual benefits to businesses and
customers. See, e.g., ABA/CBA Comments on CI Petition at 7-8; Chamber Comments on CI Petition at 5-7; Nicor
Comments on CI Petition at Attachment at 3; NSC Comments on CI Petition at 5-7; see also, e.g., Chamber
Comments on CI Petition at 3-4; DIRECTV Comments on CI Petition at 3-5; NACUBO Comments on CI Petition at
1-2; NCHER Comments on CI Petition at 2; PRA Comments on CI Petition at 2; Varolii Comments on CI Petition
at 4. This argument appears to be a request to adopt an entirely new legal interpretation of the relevant statutory
terms rather than a request for declaratory ruling to terminate controversy or remove uncertainty under existing law.
47 C.F.R. § 1.2. In this regard, the Commission has noted that it expects automated dialing technology to continue
to develop and that Congress clearly anticipated that the Commission might need to consider any changes in
technology. ACA Declaratory Ruling, 23 FCC Rcd at 566, para. 13 (citing 2003 TCPA Order, 18 FCC Rcd at
14091-92, para. 132 (citing 137 CONG. REC. S18784 (daily ed. Nov. 27, 1991) (statement of Sen. Ernest Hollings)
(“The FCC is given the flexibility to consider what rules should apply to future technologies as well as existing
technologies.”))). The Commission already has considered the question twice and found predictive dialers to be
autodialers. The Commission in the 2003 TCPA Order also noted that, regardless of changes in technology, “[t]he
basic function of such equipment [] has not changed—the capacity to dial numbers without human intervention.”
2003 TCPA Order, 18 FCC Rcd at 14092, para. 132. This argument presents nothing to suggest that there is any
uncertainty or controversy about how to apply our rules and the 2003 TCPA Order, or that changes in technology
compel a different result.
79
Glide Petition at 1, 8-9; AFSA Comments on Glide Petition at 1, 3-4; Path Comments on Glide Petition at 4, 7-12;
CI Petition at 14-16.
80
Fried Petition at 1. This petition was filed pursuant to a primary jurisdiction referral to the Commission from the
U.S. District Court for the Southern District of Texas, Civil Action No. 4:13-cv-00312 (Nov. 27, 2013) (Referral
Order). In this Declaratory Ruling and Order, we clarify the broad issue regarding voluntarily separate ownership of
equipment that, when used together, constitutes and autodialer; we do not rule on the facts, as alleged, of the civil
case that raises this issue.
81
See Referral Order at 2.
82
Id. at 3.
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Federal Communications Commission FCC 15-72
databases.
83
Textmunications then entered into an agreement with Air2Web to use its equipment to
transmit the text messages to the recipients.
84
In effect, the separate equipment divided the storage and
calling functions between these two companies. As a result, Air2Web and Textmunications allege that
their equipment should not be considered an autodialer because neither system, acting independently, has
the capacity both to store or produce numbers, and dial those numbers as required by the TCPA.
85
24. We conclude that such equipment can be deemed an autodialer if the net result of such
voluntary combination enables the equipment to have the capacity to store or produce telephone numbers
to be called, using a random or sequential number generator, and to dial such numbers. The fact that two
separate entities have voluntarily entered into an agreement to provide such functionality does not alter
this analysis. As one commenter notes, this conclusion is consistent with the statutory language and prior
Commission interpretations of the TCPA.
86
The TCPA uses the word “system” to describe the automated
dialing equipment that is defined in section 227(a)(1) of the Act.
87
The Commission noted, in concluding
that a predictive dialer meets the definition of an autodialer, that “[t]he hardware, when paired with
certain software, has the capacity to store or produce numbers and dial those numbers.”
88
As a result, the
Commission has recognized that various pieces of different equipment and software can be combined to
form an autodialer, as contemplated by the TCPA. The fact that these individual pieces of equipment and
software might be separately owned does not change this analysis.
2. Maker of a Call
a. Texting/Calling Apps
25. Next, we clarify who makes a call under the TCPA and is thus liable for any TCPA
violations. We grant, to the extent described herein, YouMail’s Petition and clarify that it does not make
or initiate a text when an individual merely uses its service to set up auto-replies to incoming
voicemails.
89
By contrast, we deny Glide’s Petition and find that, in at least one scenario, it is the maker
or initiator of text messages inviting consumers appearing in its app user’s contacts lists to use the Glide
app.
90
We grant TextMe’s Petition, and clarify that TextMe does not make or initiate a call when one of
the app users sends an invitational message using its app.
91
26. With regard to collect call services, we clarify that, where a caller provides the called
party’s phone number to a collect call service provider and controls the content of the call, he is the maker
of the call rather than the collect-call service provider who connects the call and provides information to
the called party that is useful in determining whether he or she wishes to continue the call.
92
27. The TCPA’s consent requirement applies to short message service text messages (“SMS”
83
See Fried Petition at 4-5.
84
Id. at 5.
85
Id. at 6.
86
See Roylance Comments on Fried Petition at 1. See Appendix G for a list of all commenters on the Fried Petition.
87
See 47 U.S.C. § 227(a)(1).
88
See 2003 TCPA Order, 18 FCC Rcd at 14091-93, paras. 131-133 (emphasis added).
89
See paras. 31-33, infra.
90
See paras. 34-35, infra; see also DISH Declaratory Ruling, 28 FCC Rcd at 6583, para. 27.
91
See paras. 36-37, infra.
92
See para. 40, infra.
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Federal Communications Commission FCC 15-72
or “text message”) in addition to voice calls.
93
The Commission’s implementing rule states that no person
or entity may “initiate any telephone call” to the specified recipients.
94
The Commission, in the 2013
DISH Declaratory Ruling,
95
noted that neither the statute nor our rules define “initiate,” and determined
that “a person or entity ‘initiates’ a telephone call when it takes the steps necessary to physically place a
telephone call, and generally does not include persons or entities, such as third-party retailers, that might
merely have some role, however minor, in the causal chain that results in the making of a telephone
call.”
96
28. Commenters supporting the Petitioners argue that merely providing software or a
platform that facilitates calling, or hosting a calling service, is not a TCPA violation;
97
that user choice
and involvement in sending text messages is the element that causes the app provider to cease to be the
maker of the call;
98
and that operators of platforms do not initiate calls, but rather users of the apps do.
99
Opposing commenters argue that where the transmission service provider is highly involved with the
calling, it should be held liable as the maker of the call;
100
and the app developer does not merely facilitate
the call but rather makes the call when it creates and sends pre-written text messages without the app
user’s authorization, knowledge, or interaction.
101
29. The intent of Congress, when it established the TCPA in 1991, was to protect consumers
from the nuisance, invasion of privacy, cost, and inconvenience that autodialed and prerecorded calls
93
2003 TCPA Order, 18 FCC Rcd at 14115, para. 165; see also Satterfield v. Simon & Schuster, Inc., 569 F.3d 946,
954 (9th Cir. 2009) (noting that text messaging is a form of communication used primarily between telephones and
is therefore consistent with the definition of a “call”).
94
47 C.F.R. § 64.1200(a)(1) (emphasis added).
95
While DISH Declaratory Ruling interpreted and applied section 227(b)(1)(B), the Commission has recently stated
that the same logic that applies to the “initiation” of calls under section 227(b)(1)(b) applies to the “making” of calls
under section 227(b)(1)(A). See DISH Declaratory Ruling, 28 FCC Rcd at 6575, 6583, paras. 3, 26; 47 U.S.C. §
227(b)(1).
96
DISH Declaratory Ruling, 28 FCC Rcd at 6583, para. 26. The Commission went on to clarify that, while sellers
do not generally initiate calls made through a third-party telemarketer within the meaning of the TCPA, the seller
“nonetheless may be held vicariously liable under federal common law principles of agency for violations of []
section 227(b) [] that are committed by third-party telemarketers.” Id. at 6574, para. 1. None of the petitions
addressed in this Declaratory Ruling raise the issue of vicarious liability and we do not address it.
97
CallFire Comments on YouMail Petition at 6; Glide Reply Comments on Glide Petition at 7-8; Ex Parte Letter
from Lauren Lynch Flick, Counsel to YouMail, Inc., to Marlene H. Dortch, Secretary, FCC in CG Docket No. 02-
278, at 2 (filed Dec. 19, 2013).
98
AFSA Comments on YouMail Petition at 4; Biggerstaff Comments on YouMail Petition at 4-5; CallFire
Comments on YouMail Petition at 5; CTIA Reply Comments on YouMail Petition at 9; Dialing Services Comments
on Glide Petition at 3; Glide Reply Comments on Glide Petition at 7; Glide Reply Comments on YouMail Petition at
9-10; Twilio Comments on Glide Petition at 4, 15; YouMail Reply Comments on YouMail Petition at 12; Ex Parte
Letter from Lauren Lynch Flick, Counsel to YouMail, Inc., to Marlene H. Dortch, Secretary, FCC in CG Docket No.
02-278, at 2 (filed June 21, 2013); Ex Parte Letter from Lauren Lynch Flick, Counsel to YouMail, Inc., to Marlene
H. Dortch, Secretary, FCC in CG Docket No. 02-278, at 2 (filed Mar. 4, 2014).
99
Biggerstaff Reply Comments on YouMail Petition at 4; CallFire Comments on YouMail Petition at 4; Ex Parte
Letter from Mitchell N. Roth, Counsel to Dialing Services, to Marlene H. Dortch, Secretary, FCC in CG Docket No.
02-278, at 1 (filed Dec. 5, 2013).
100
Biggerstaff Reply Comments on YouMail Petition at 2-3; Dialing Services Reply Comments on Glide Petition at
3; Twilio Comments on Glide Petition at 3.
101
Coffman Comments on Glide Petition at 2, 15-17; Gold Comments on YouMail Petition at 14-15; Roylance
Reply Comments on YouMail Petition at 12.
7979
Federal Communications Commission FCC 15-72
generate.
102
Congress found that consumers consider these kinds of calls, “regardless of the content or the
initiator of the message, to be a nuisance and an invasion of privacy”; that businesses also complain that
these kinds of calls “are a nuisance, are an invasion of privacy, and interfere with interstate commerce”;
and that banning such calls, except when made for an emergency purpose or when the called party
consents to receiving the call, “is the only effective means of protecting telephone consumers from this
nuisance and privacy invasion.”
103
Congress therefore put the responsibility for compliance with the law
directly on the party that “makes” or “initiates” automated and prerecorded message calls. As the
Commission recognized in the DISH Declaratory Ruling, neither the TCPA nor the Commission’s rules
define “make” or “initiate,” nor do they establish specific factors to be considered in determining who
makes or initiates a call,
104
but noted that “initiate” suggests some “direct connection between a person or
entity and the making of a call.”
105
In issuing the guidance that we provide today, we account for changes
in calling technology that inure to the benefit of consumers while fulfilling the intent of Congress to
prohibit nuisance calls that cause frustration and harm.
30. Specifically, a “direct connection between a person or entity and the making of a call”
can include “tak[ing] the steps necessary to physically place a telephone call.”
106
It also can include being
“so involved in the placing of a specific telephone call” as to be deemed to have initiated it.
107
Thus, we
look to the totality of the facts and circumstances surrounding the placing of a particular call to determine:
1) who took the steps necessary to physically place the call; and 2) whether another person or entity was
so involved in placing the call as to be deemed to have initiated it, considering the goals and purposes of
the TCPA.
108
In discussing below how these standards apply in the context of factual circumstances
presented in petitions before us, we identify factors that are relevant to the DISH Declaratory Ruling
analysis. Depending upon the facts of each situation, these and other factors, such as the extent to which
a person willfully enables fraudulent spoofing of telephone numbers or assists telemarketers in blocking
Caller ID, by offering either functionality to clients, can be relevant in determining liability for TCPA
violations.
109
Similarly, whether a person who offers a calling platform service for the use of others has
knowingly allowed its client(s) to use that platform for unlawful purposes may also be a factor in
determining whether the platform provider is so involved in placing the calls as to be deemed to have
102
See S.REP. NO. 102-178, 1st Sess., 102nd Cong., (1991) at 2, 4–5.
103
Telephone Consumer Protection Act, Pub L. No. 102-243, § 2 (1991).
104
DISH Declaratory Ruling, 28 FCC Rcd at 6583, paras. 26-27.
105
Id. at para. 26.
106
Id.
107
Id. at paras. 26-27 (providing the example of a seller “giving the third party specific and comprehensive
instructions as to timing and the manner of the call”).
108
Id. at 28 FCC Rcd at 6584, para. 28.
109
See 47 U.S.C. § 227(e) (“It shall be unlawful for any person within the United States . . . to cause any caller
identification service to knowingly transmit misleading or inaccurate caller identification information with the intent
to defraud, cause harm, or wrongfully obtain anything of value . . . .”); 47 C.F.R. § 64.1604 (mirroring the language
of 47 U.S.C. § 227(e)); 47 C.F.R. § 64.1601(e) (“Any person or entity that engages is telemarketing . . . must
transmit caller identification information . . . (2) Any person or entity that engages in telemarketing is prohibited
from blocking the transmission of caller identification information.”). See “Senators pile on the robocall criticism,”
The Hill, June 11, 2015, available at http://www.mccaskill.senate.gov/media-center/latest-headlines/senators-pile-
on-the-robocall-criticism (quoting Senator Susan Collins: “If we are going to win the fight against scammers
targeting our seniors, we need to get ahead of the technology that they use to generate robocalls to spoof caller
IDs.”) (last visited June 17, 2015); “Ringing Off the Hook: Examining the Proliferation of Unwanted Calls”:
Hearing before the United States Senate Special Committee on Aging (June 10, 2015), available at
http://www.aging.senate.gov/hearings/ringing-off-the-hook_examining-the-proliferation-of-unwanted-calls (last
visited June 17, 2015).
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Federal Communications Commission FCC 15-72
initiated them.
110
31. We grant to the extent described herein YouMail’s Petition and clarify that YouMail does
not make or initiate a call when one of its app users uses its service to send an automatic text in response
to a voicemail left by someone who called the YouMail app user. YouMail’s app is reactive in nature; in
relevant part, it allows its users to send a reply text message, which YouMail identifies as an “auto-reply,”
“in response to a voicemail message that has been left for the app [user] by the calling party.”
111
The
YouMail app user determines whether to send the auto-reply text messages, which categories of callers
should receive auto-replies, how the user’s name should appear in the auto-reply, and whether to include a
message with the auto-reply (such as when the called party will be available to return the call).
112
YouMail states that an auto-reply is sent only if four criteria are met: (1) the YouMail user has set the
app’s options to send an auto-reply to some group of callers; (2) the calling party falls into that group; (3)
the calling party has not previously opted out of receiving auto-replies from YouMail; and (4) “sufficient
‘caller id’ information is available to send the text.”
113
YouMail states that it has “no influence over the
content of the message selected by the [app user].”
114
YouMail asserts, based on these criteria, that it is
“merely the service by which execution of the [app user’s] call is arranged.”
115
32. We agree with YouMail and with commenters who note that the app users choose
whether to send text messages and that their involvement in the process of creating and sending the
messages in response to received calls are key factors in determining whether the app provider or the app
user is the initiator of the call for TCPA purposes,
116
either by taking the steps physically necessary to
place the call or by being so involved in placing the call as to be deemed to have initiated it. Based on the
record before us, YouMail appears to do neither. YouMail is a reactive and tailored service; in response
to a call made to the app user, YouMail simply sends a text message to that caller, and only to that caller.
This kind of service differs from the non-consensual calling campaigns over which the TCPA was
designed to give consumers some degree of control. YouMail exercises no discernible involvement in
deciding whether, when, or to whom an auto-reply is sent, or what such an auto reply says, nor does it
perform related functions, such as pre-setting options in the app, that physically cause auto-replies to be
110
See DISH Declaratory Ruling, 28 FCC Rcd at 6584, para. 28. Cf. 47 C.F.R § 64.1200(a)(4)(vii) (facsimile
broadcaster is liable for violations of unsolicited fax advertising prohibition if it demonstrates a high degree of
involvement in, or actual notice of, the unlawful activity and fails to take steps to prevent such transmissions). For
example, if the Commission staff notifies a platform provider that its service is being used unlawfully by its clients
and the platform provider then allows such usage to continue after this warning, we will consider the fact that the
platform provider allowed such usage to continue after having actual notice of the unlawful activity to be a possible
indicator that the platform provider is actively participating in the making or initiating of the calls at issue. Of
course, we will consider all facts and circumstances surrounding any possible violation(s) before determining how
liability, if any, should be applied.
111
YouMail Petition at 3. YouMail states that its “data shows users and their calling partners overwhelming[ly] like
this feature.” YouMail Reply Comments on YouMail Petition at 8.
112
YouMail Petition at 3.
113
Id. at 4.
114
Id. at 12.
115
Id. at 12.
116
AFSA Comments on YouMail Petition at 4; Biggerstaff Comments on YouMail Petition at 4-5; CallFire
Comments on YouMail Petition at 5; CTIA Reply Comments on YouMail Petition at 9; Dialing Services Comments
on Glide Petition at 3; Glide Reply Comments on Glide Petition at 7; Glide Reply Comments on YouMail Petition at
9-10; Twilio Comments on Glide Petition at 4, 15; YouMail Reply Comments on YouMail Petition at 12; Ex Parte
Letter from Lauren Lynch Flick, Counsel to YouMail, Inc., to Marlene H. Dortch, Secretary, FCC in CG Docket No.
02-278, at 2 (filed June 21, 2013); Ex Parte Letter from Lauren Lynch Flick, Counsel to YouMail, Inc., to Marlene
H. Dortch, Secretary, FCC in CG Docket No. 02-278, at 2 (filed Mar. 4, 2014).
7981
Federal Communications Commission FCC 15-72
sent.
33. In a supplemental filing, YouMail indicates that its auto-reply text messages include a
link to the YouMail website, where the recipient of the text can access identifying information and
instructions for how to opt out of receiving future auto-reply text messages from YouMail users.
117
Controlling this small portion of the content of the auto-reply text message, however, is insufficient to
change our determination that the app user, and not YouMail, is the maker of the call. What is relevant is
the reactive and tailored nature of YouMail’s service, and that an app user controls the bulk of the
message—along with the matters of whether the auto-reply messages are sent and to whom they are sent.
Thus, YouMail is not the maker or initiator of the text because it does not control the recipients, timing,
or content, but instead “merely ha[s] some role, however minor, in the causal chain that results in the
making of a telephone call.”
118
34. Glide’s app and service function differently from YouMail’s and warrant separate
consideration. While Glide does not make clear in its Petition or comments all the ways consumers can
use its app, we find that, in at least one scenario, Glide is the maker or initiator of the text and thus liable
for TCPA violations.
119
The Glide app enables “real-time communication through video messaging.”
120
Glide streams video that users can watch live or later, like a text message.
121
Only users of the Glide app
may exchange video messages over the app. Glide’s dialer “facilitates” the sending of “invitational text
messages,”
122
but Glide does not include in its comments a sample of the message. Commenter Coffman
does provide an example, however, saying that he received a text message “stating that ‘[a Glide user] has
something to show you on Glide’ and which included a link to Glide’s website where consumers are
encouraged to download Glide’s app.”
123
Coffman asserts that “prior to late July 2013, Glide
automatically sent the text message solicitations to all of a user’s contacts [in the address book of the
user’s device] unless the user affirmatively opted out.”
124
Coffman continues: “[E]ven if Glide now
requires some sort of user opt-in before Glide [sends invitational texts to] the user’s contacts, again there
is no indication as to how such an opt-in procedure works or how clear Glide makes it to users that Glide
is sending text message advertisements [for its app] to the users’ contacts.”
125
Glide asserts that app users
decide whether to send the invitational texts, to whom to send the invitational texts, and when to send the
invitational texts.
126
Glide states that it “provides users with suggested language” and users “can choose
117
See Ex Parte Letter from Lauren Lynch Flick, Counsel to YouMail, to Marlene H. Dortch, Secretary, FCC in CG
Docket No. 02-278, at 4-5 (filed April 14, 2014).
118
DISH Declaratory Ruling, 28 FCC Rcd at 6583, para. 26.
119
The record is unclear regarding Glide’s current practice of sending invitational text messages to its users’
contacts and the ease with which app users can opt out of the messages. Complaints about this practice by Glide are
prevalent on the Internet. See, e.g., Sarah Perez, Video Texting App Glide Is Going ‘Viral,’ Now Ranked Just Ahead
of Instagram In App Store, TechCrunch, July 24, 2013, available at http://techcrunch.com/2013/07/24/video-
texting-app-glide-is-going-viral-now-ranked-just-ahead-of-instagram-in-app-store/ (last visited May 18, 2015).
120
Glide Petition at 2-3.
121
Id. at 3.
122
Id. at 3-5, 15; see also Shields Reply Comments on Glide Petition at 1.
123
Coffman Comments on Glide Petition at 4. The Comments include the name of the person who purportedly sent
the text message to Mr. Coffman. Id. The Commission assumes that the name included is that of a Glide user.
Coffman filed suit against Glide for alleged TCPA violations; the suit was filed in U.S. District Court for the
Northern District of Illinois on July 19, 2013. Glide Petition at 4 n.7.
124
Coffman Comments on Glide Petition at 5.
125
Id.
126
Glide Petition at 15. Based on Glide’s assertions, the invitational text messages Glide’s app sends are not
reactive, while the auto-reply texts the YouMail app user sends through the YouMail app are reactive.
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Federal Communications Commission FCC 15-72
to—or choose not to—send this suggested language to selected recipients.”
127
It also states that “the
Glide App now provides users with the ability to edit the suggested language as they wish, providing
users with even further control.”
128
Unlike the standard language in YouMail’s text messages, there is no
indication that Glide’s standard language is limited to opt-out information.
35. The record detailed above sets forth two factual scenarios in which we consider whether
Glide may be deemed the maker or initiator of the invitational text messages. Under the first scenario,
Glide automatically sends invitational texts of its own choosing to every contact in the app user’s contact
list with little or no obvious control by the user.
129
In this scenario, the app user plays no discernible role
in deciding whether to send the invitational text messages, to whom to send them, or what to say in them.
This scenario is different from the YouMail app, where the app user determines whether auto-reply
messages are sent in response to a caller leaving a message for the app user, and the content of those
messages. Applying the DISH Declaratory Ruling and the factors we considered in the YouMail
analysis, above, we conclude that, in this factual scenario, Glide makes or initiates the invitational text
messages by taking the steps physically necessary to send each invitational text message or, at a
minimum, is so involved in doing so as to be deemed to have made or initiated them.
36. Finally, we grant to the extent described herein TextMe’s Petition and clarify that
TextMe does not make or initiate a call when one of its app users sends an invitational text message using
the steps outlined below.
130
The TextMe app and service provides access to text message and voice call
services.
131
The app allows users to send and receive text messages within the United States free of
charge if both parties are app users.
132
App users may also receive calls from any telephone number and
place calls within the United States without charge.
133
In order for an app user to make voice calls or send
text messages to international phone numbers, the app user must “earn calling credits” by completing
actions such as “watching videos or completing promotional videos,” or by purchasing “TextMe
credits.”
134
Because of the nature of its service, “the appeal of the TextMe App to users is related to its
number of users and its functionality.”
135
In order to increase the number of users, the TextMe app, much
like the Glide app, enables users to send invitational text messages to contacts in their phone’s address
book.
136
TextMe states that app users invite friends to use TextMe “via text message by engaging in a
multi-step process in which users ha[ve] to make a number of affirmative choices throughout the invite
process.”
137
An app user must: (1) tap a button that reads “invite your friends”; (2) choose whether to
“invite all their friends or [] individually select contacts”; and (3) choose to send the invitational text
127
Glide Reply Comments on Glide Petition at 8 n.27.
128
Id.
129
See Glide Reply Comments on Glide Petition at 7-8; Coffman Comments on Glide Petition at 1, 5.
130
In its Petition, TextMe requested clarification that “third party consent obtained through an intermediary satisfies
the TCPA’s ‘prior express consent’ requirement for non-commercial, informational calls or text messages to
wireless numbers.” TextMe Petition at i. TextMe later withdrew this request for clarification. TextMe Reply
Comments on TextMe Petition at i, 2.
131
TextMe Petition at 5.
132
Id. at 4.
133
Id. at 4.
134
Id.
135
Id. at 5.
136
TextMe has disabled the ability to send invitational text messages, pending resolution of its petition. TextMe
Petition at 5 n.6. App users may still invite friends to use the app through email or social network services. Id.
137
Id. at 5.
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Federal Communications Commission FCC 15-72
message by selecting another button.
138
TextMe then sends the invitational text message, which
“include[s] [the] user[’s] TextMe handle and invite[s] the recipient to install the App so the user and the
contact invited by the user [can] call and text for free.”
139
37. Turning again to the DISH Declaratory Ruling factors, we look first to the extent to
which TextMe controls the content of the invitational messages.
140
TextMe acknowledges that the
language of the invitational texts has varied over time, but is clear that it, and not the app user, controls
the content of the invitational text message.
141
Relying on the DISH Declaratory Ruling factors we
discussed in the Glide analysis, above, to the extent that TextMe controls the content of the message and
the content of the message is telemarketing or a commercial advertisement for the TextMe app, TextMe
may be liable for the calls. We also consider the extent to which the app user decides whether to initiate
the invitational message, which is instructive in determining whether TextMe is so involved in placing the
invitational text messages as to be deemed to have made or initiated them, considering the goals and
purposes of the TCPA.
142
Here, TextMe outlines the steps the app user takes and the choices he or she
makes in determining whether to send an invitational message, to whom to send an invitational message,
and when that invitational message is sent.
143
These affirmative choices by the app user lead us to
conclude that the app user and not TextMe is the maker of the invitational text message. While we agree
with commenters that TextMe’s control of the content of the invitational text message is a reason for
concern,
144
and take into account the goals and purposes of the TCPA, we conclude that the app user’s
actions and choices effectively program the cloud-based dialer to such an extent that he or she is so
involved in the making of the call as to be deemed the initiator of the call. Like YouMail, TextMe is not
the maker or initiator of the invitational text messages because it is not programming its cloud-based
dialer to dial any call, but “merely ha[s] some role, however minor, in the causal chain that results in the
making of a telephone call.”
145
b. Collect Call Services and Prerecorded- or Artificial-Voice Messages
38. The GTL and 3G Collect Petitions raise additional issues regarding the maker of a call.
Both GTL and 3G Collect seek clarification that a collect calling service provider does not make a
separate call to which the TCPA applies when it uses a prerecorded message as part of the process of
setting up and connecting a collect call.
146
GTL and 3G Collect each provide collect calling services to
consumers. 3G Collect’s calling service is directed toward consumers seeking to call wireless telephone
numbers of their choosing and have the charges for the calls billed to the call recipients.
147
GTL provides
an inmate calling service (“ICS”) that enables inmates to place collect calls to both wireless and
138
Id.
139
Id. at 6. TextMe notes that the language of the invitational texts varied over time, but that the content was always
the same: “the texts identified the user and provided a link to download the App.” TextMe Reply Comments on
TextMe Petition at 5.
140
See, e.g., DISH Declaratory Ruling, 28 FCC Rcd at 6592, para. 46 (“It may also be persuasive that the seller
approved, wrote or reviewed the outside entity’s telemarketing scripts.”).
141
TextMe Petition at 6; TextMe Reply Comments on TextMe Petition at 5.
142
See DISH Declaratory Ruling, 28 FCC Rcd at 6583, para. 27.
143
TextMe Petition at 5; supra para. 36.
144
Biggerstaff Reply Comments on TextMe Petition at 2; Roylance Comments on TextMe Petition at 2.
145
DISH Declaratory Ruling, 28 FCC Rcd at 6583, para. 26.
146
We use the term “collect call service providers” to mean an entity that has the capability of establishing an ad hoc
billing relationship with a call recipient for the purpose of connecting a telephone call from a calling party to him or
her and, once that billing relationship is established, connects the telephone call.
147
3G Collect Petition at 1.
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Federal Communications Commission FCC 15-72
residential numbers, using an automated interactive voice response (“IVR”) notification system.
148
Before
connecting a user of their services to the called party, 3G Collect and GTL each play a prerecorded
message that advises the called party that a collect call has been placed to the called party and, in GTL’s
case, that the call is from a person incarcerated in a penal institution.
149
3G Collect asserts that it does not
control whether a call is made, the timing of the call, the call recipient, or the content of the call once
connected.
150
Moreover, 3G Collect argues that were it not for the lack of a payment mechanism, the call
would be carried out directly between two individuals; 3G Collect simply facilitates the completion of the
call.
151
GTL argues that the automated messages it sends to the numbers initially dialed by inmates are
not the types of robocalls the TCPA seeks to prevent, but are instead steps required in GTL’s contractual
obligation to attempt to complete every inmate call.
152
39. The TCPA and the Commission’s implementing rules require prior express consent for
prerecorded telemarketing calls to residential telephones
153
and any robocall to a wireless telephone
number.
154
3G Collect and GTL assert that the user of their services, i.e., the inmate or other person who
uses their services to place a collect call, rather than 3G Collect or GTL, is the initiator of the call for
purposes of the TCPA.
155
Both 3G and GTL maintain that the prerecorded messages they use in
connecting a collect call provide information to the called party to facilitate call completion and do not
constitute separate calls.
156
3G Collect further asks the Commission to declare that the TCPA and the
Commission’s associated rules are not applicable to the use of prerecorded messages by operator service
providers
157
in the course of connecting collect callers to wireless numbers.
158
GTL asks the Commission
148
GTL Petition at 3-6.
149
Id. at 3-5; 3G Collect Petition at 1-2.
150
See 3G Collect Petition at 5.
151
See id. at 6; see also 3G Collect Reply Comments at 2.
152
GTL Petition at 8-11.
153
47 U.S.C § 227(b)(1)(A); 47 C.F.R. § 64.1200(a)(3).
154
47 U.S.C § 227(b)(1)(A); 47 C.F.R. § 64.1200(a)(1). For autodialed and prerecorded telemarketing calls to
wireless numbers, prior express consent must be written. See 2012 TCPA Order, 27 FCC Rcd at 1838, para. 20.
155
3G Collect Petition at 5; GTL Reply Comments on 3G Collect Petition at 7, 15. See Appendix T for a list of all
commenters on the 3G Collect Petition.
156
GTL explains that each message identifies GTL and that the call was originated by an inmate at a specific
facility. The name of the inmate is not transmitted until the called party acknowledges that he or she wants to accept
the call(s) and sets up an account. GTL points out that if the called party does not know the identity of the inmate
from hearing the name of the facility, a call to GTL’s toll-free number can provide assistance. GTL Petition at 10.
157
3G Collect characterizes itself as an “operator service provider.” The Act and our rules define “operator
services” call as “any interstate telecommunications service initiated from an aggregator location that includes, as a
component, any automatic or live assistance to a consumer to arrange for billing or completion, or both, of an
interstate telephone call through a method other than: (1) Automatic completion with billing to the telephone from
which the call originated; or (2) Completion through an access code used by the consumer, with billing to an
account previously established with the carrier by the consumer”; “aggregator” is defined as “any person that, in the
ordinary course of its operations, makes telephones available to the public or to transient users of its premises, for
interstate telephone calls using a provider of operator services.” See 47 U.S.C. § 226(a)(2), (7), 47 C.F.R. §
64.708(b), (i). Despite its self-description, 3G Collect has not provided any information to establish that it meets the
statutory definition of “operator services” because, among other things, it does not show that its service is always
provided to calls from aggregator locations.
158
3G Collect Petition at 8.
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Federal Communications Commission FCC 15-72
to declare the same for its use of IVR notifications before completing inmate calls to the general public.
159
Commenters filed both in support of
160
and in opposition to
161
3G Collect and GTL’s Petitions.
40. Based on the record and our precedent, we clarify that collect calling service providers
that use prerecorded messages, on a single call-by-call basis, to provide call set-up information when
attempting to connect a collect call to a residential or wireless telephone number may do so under the
TCPA without first obtaining prior express consent from the called party.
162
We find persuasive the logic
in our DISH Declaratory Ruling analysis that “a person or entity ‘initiates’ a telephone call when it takes
the steps necessary to physically place a telephone call, and generally does not include persons or entities,
such as third-party retailers, that might merely have some role, however minor, in the causal chain that
results in the making of a telephone call.”
163
We find that a person who dials the number of the called
party or the number of a collect calling service provider in order to reach the called party, rather than the
collect calling service provider who simply connects the call, “makes” the call for purposes of the TCPA.
It is the user of such services that “takes the steps necessary to physically place a telephone call” by
providing the called party’s number to 3G Collect or GTL when he or she wishes to communicate with a
person and by controlling the content of the call if the called party accepts the call. We agree with 3G
Collect and GTL that the types of calls at issue here
164
constitute a single end-to-end communication
during which the collect calling service provider uses a prerecorded message to provide information that
the called party uses to determine whether to accept the call.
165
41. GTL separately seeks clarification regarding collect calls to numbers for which it has no
billing relationship. Specifically, when an inmate attempts to call a number and GTL has no means to bill
it to the called party, GTL advises the inmate that it cannot complete the call, terminates the call, and
159
GTL Petition at 3.
160
See, e.g., ATT Comments on 3G Collect Petition; GTL Comments on 3G Collect Petition and GTL Petition;
PayTel Comments on 3G Collect Petition; Securus Comments on 3G Collect and GTL Petition; Cargo Comments
on GTL Petition; UPS Comments on GTL Petition. See Appendix I for a list of all commenters on the GTL Petition.
161
See, e.g., Biggerstaff Comments on 3G Collect Petition and GTL Petition; Braver Comments on 3G Collect
Petition and GTL Petition; Roylance Comments on 3G Collect Petition and GTL Petition; Abramson Comments on
3G Collect Petition; Shields Comments on 3G Collect; Charvat Reply Comments on 3G Collect Petition; Worshman
Comments on GTL Petition; Pechnik Comments on GTL Petition.
162
Several commenters filing in support of 3G Collect’s Petition liken 3G Collect’s services to those of ICS and
request that the Commission declare that ICS providers are similarly permitted to use automated or prerecorded
messages when attempting to establish billing relationships and complete telephone calls to call recipients. See GTL
Comments on 3G Collect Petition; PayTel Comments on 3G Collect Petition; Securus Comments on 3G Collect
Petition. To avoid any doubt, we note that this clarification applies to ICS providers, as well.
163
DISH Declaratory Ruling, 28 FCC Rcd at 6583, para. 26.
164
We do not address the prerecorded calls or text messages that collect calling service providers may make to bill
for these calls. According to 3G’s website, see http://3gcollect.com/ (last visited May 18, 2015), “[y]ou are here
because you received a text message invoice on your cell phone. You recently accepted a collect call and our
automated system will send a text message until payment for that call is received.” If a collect calling service
provider sends covered texts to bill for calls, such texts are not part of the collect call itself and require separate
consent from the recipient. In addition, GTL recently filed a supplement to its petition concerning the application of
the TCPA to voice calls or texts involving a low account balance. Global Tel*Link, Supplement to Petition for
Expedited Clarification and Declaratory Ruling, CG Docket No. 02-278 (filed April 3, 2015). Because the
supplemental filing raises an issue distinct from other issues in this proceeding, it will be addressed separately.
165
Cf. Teleconnect Co. v. Bell Tel. Co. of Pa., 10 FCC Rcd 1626, 1632, para. 12 (1995) (“[B]oth court and
Commission decisions have considered the end-to-end nature of the communications more significant than the
facilities used to complete such communications. According to these precedents, we regulate an interstate wire
communication under the Communications Act from its inception to its completion. Such an interstate
communication does not end at an intermediate switch.”).
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Federal Communications Commission FCC 15-72
then, over the course of three days, places up to three subsequent calls to the number in an effort to
establish a prepaid account with the called party.
166
GTL uses its IVR to place these prerecorded calls to
residential and wireless telephone numbers.
42. We clarify that GTL’s prerecorded follow-up calls to set up a billing relationship with a
called party can be made to residential lines without being restricted by our TCPA rules. Section
64.1200(a)(3)(iii) of our rules excepts from the restriction on making prerecorded calls to residential
numbers without prior express consent those calls that are “made for a commercial purpose but [do] not
include or introduce an advertisement or constitute telemarketing.”
167
The purpose of the calls at issue
here is commercial, in that GTL seeks to set up a billing arrangement for a collect call. But we do not
find them to include or introduce an advertisement under the unique factual and legal circumstances here.
These calls are not intended to be the kind of generalized communication of the “commercial availability
or quality of property, goods, or services” contemplated by the definition of “advertisement” in our
rules.
168
Rather, as explained more fully below, these calls are made to arrange for the billing of a specific
collect call that an inmate caller has already attempted to initiate. Similarly, in this unique context we do
not interpret these calls as intended to “encourage[e] the purchase or rental of, or investment in, property,
goods, or services,” as our rule defines “telemarketing,”
169
but instead are intended to complete a very
specific transaction—the billing of a collect call—that the caller has already initiated. We note that this
clarification helps to facilitate compliance with the 2013 Inmate Calling Order.
170
There, in recognition
of the particular challenges and legal constraints of the ICS marketplace, the Commission found that an
ICS provider’s failure to complete the kind of inmate calls at issue here would be an unjust and
unreasonable practice in violation of section 201(b) of the Communications Act
171
unless the ICS provider
offered an option to avoid billing-related call blocking,
172
such as the pre-paid option GTL discusses in its
Petition. We believe that the subsequent calls made by GTL to residential numbers to arrange for billing
are beneficial in providing a meaningful pre-paid option and thus can be viewed as part of its effort to
comply with the Inmate Calling Order and with its obligations under section 201(b). Accordingly, we
caution that our findings here apply only to the collect-call billing attempts to residential numbers at issue
here.
43. When GTL uses these prerecorded calls to contact wireless numbers, however, our
regulations require prior express consent. The TCPA requires prior express consent for robocalls to
wireless numbers without regard to the content of the call.
173
Moreover, in giving the Commission
authority to exempt certain calls from this restriction, Congress did not provide that the content of the call
should be a consideration, as it could be with the possible exemption of prerecorded calls to residential
166
When incarcerated persons attempt to make a call to an individual for the first time, and that individual is not
served by a local exchange carrier with which GTL has a billing arrangement, or the inmate has dialed a called
party’s wireless phone, the call cannot be completed unless and until a billing arrangement with the called party is
established. Once the inmate dials the desired number, GTL captures the number and initiates an automated
interactive voice response notification to inform the called party that an incarcerated person is attempting to contact
him or her and that the called party must establish an account in order to receive the call. GTL Petition at 4-5. GTL
maintains that it permanently abandons the notification attempts after three attempts. Id. at 15.
167
See 47 C.F.R. § 64.1200(a)(3)(iii).
168
47 C.F.R. § 64.1200(f)(1).
169
47 C.F.R. § 64.1200(f)(12).
170
See In the Matter of Rates for Inmate Calling Services, Report and Order and Further Notice of Proposed
Rulemaking, WC Docket No. 12-375, 28 FCC Rcd 14107 (2013) (Inmate Calling Order).
171
47 U.S.C. § 201(b).
172
Inmate Calling Order, 28 FCC Rcd at 14168, paras. 113-14.
173
47 U.S.C. § 227 (b)(1); 47 C.F.R. § 64.1200(a)(1).
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Federal Communications Commission FCC 15-72
lines.
174
Rather, the statute provided that the Commission can consider exemptions only for calls that are
“not charged to the called party.” The GTL Petition asks the Commission to use its authority under
section 227(b)(2)(C) to exempt from its prior-express-consent requirement
175
calls to a number assigned
to a cellular telephone service that are not charged to the consumer, subject to conditions contemplated by
the statutory exemption provision.
176
GTL asserts that its IVR notification to wireless phone numbers is
informational and serves no commercial purpose. We agree.
44. As noted above, we believe that GTL’s follow-up calls to residential numbers seeking to
make billing arrangements for a specific collect call serve to implement the Commission’s policy of
promoting a pre-paid calling option for ICS as set out in the Inmate Calling Order.
177
We find that this
rationale applies to GTL’s follow-up calls to wireless telephone numbers assigned to a cellular service
where GTL seeks to make billing arrangements for collect calls. Moreover, the calls that GTL would
make to arrange billing for a particular collect call would allow for completion of a collect call that has
already been attempted. We therefore conclude that exempting such calls to cellular telephone numbers
from the prior express consent requirement will ensure that inmate calls can be completed in a timely
manner.
178
174
Compare 47 U.S.C. § 227(b)(2)(B) (authorizing the Commission to exempt calls to residential lines that are not
made for a commercial purpose, and calls that are made for a commercial purpose if they will not adversely affect
privacy rights and do not include unsolicited advertisement) with 47 U.S.C. § 227(b)(2)(C) (authorizing the
Commission to exempt calls to numbers assigned to a cellular telephone service if the call is not charged to the
called party and subject to conditions as necessary in the interest of the privacy rights the TCPA was intended to
protect). The TCPA applies the consent requirement to calls to “cellular telephone service.” 47 U.S.C. §
227(b)(1)(A)(iii). In this Declaratory Ruling and Order we sometimes refer to that service as “wireless service” and
use it to describe the nature of the service used by consumers rather than referring to only those services provided
using the spectrum block licensed by the Commission under the name “Cellular Service.” We note in this regard
that consumers use competing, functionally equivalent (from the consumer perspective) services using spectrum
licensed under other names—such as “Personal Communication Service,” “700 megahertz service,” and “Advanced
Wireless Service”—that did not exist at the time the TCPA was enacted. If we were to interpret the TCPA to restrict
the Commission’s exemption authority to only services offered using the “Cellular Service” spectrum block, neither
consumers using functionally equivalent services in other spectrum blocks nor persons who call them would enjoy
the benefits of any exemption the Commission grants. This would create the anomalous result of an exemption
applying based on spectrum block names rather than on the nature of the service used by consumers. It also would
place a heavy burden on callers who wish to rely upon the exemption, before making any call, to identify the
spectrum block used to serve the consumers they wish to call. Thus, for purposes of our exemption authority under
the TCPA, we focus on the consumer-facing nature of the service being used rather than on which spectrum block is
used to provide the service.
175
47 U.S.C. § 227(b)(2)(C).
176
GTL Petition at 13-14.
177
Inmate Calling Order, 28 FCC Rcd at 14168, paras. 113-14.
178
Contrary to the suggestion of a dissenting statement, the narrow exemption we here adopt is limited to the factual
and legal context that is unique to inmate calls, and our reasoning and interpretation does not extend to other
situations in which a caller might seek to establish a billing relationship in allegedly similar circumstances. See
Commissioner Pai Dissent at 11. Moreover, our decision here does not create a loophole for telemarketers, but
authorizes an exemption for a specific type of call and sets clear conditions on calls made pursuant to that
exemption. In addition to the condition that the exempted calls “must not include any telemarketing, solicitation,
debt collection, or advertising content,” para. 45, infra, the exemption specifically and clearly applies only in the
context of calls made by an inmate who has attempted to initiate a call to a specific phone number. The exemption
permits the inmate calling services provider to make follow-up calls to only that number, limits the number of
follow-up calls, and limits the timeframe within which the calls may be made—all for the purpose of facilitating the
call attempted by the inmate and considering the unique circumstances that exist with regard to inmate calls. In
other words, the exempted calls are allowed only to facilitate the completion of a specific call that has been
attempted by an inmate. In no way can inmate calling services providers make generalized telemarketing calls
(continued....)
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Federal Communications Commission FCC 15-72
45. As such, we adopt the following conditions for each collect call attempt notification to a
cellular telephone number utilizing the exemption we grant today:
1) pursuant to section 227(b)(2)(C),
179
collect call attempt notifications to cellular telephone
numbers shall not be charged to the called party;
180
2) notifications must identify the name of the collect call service provider and include contact
information;
3) notifications must not include any telemarketing, solicitation, debt collection, or advertising
content;
4) notifications must be clear and concise, generally one minute or less;
5) collect call service providers shall send no more than three notifications for each inmate call,
and shall not retain the called party’s number upon call completion or, in the alternative, not
beyond the third notification attempt; and
6) each notification call must include information on how to opt out of future calls; voice calls
that could be answered by a live person must include an automated, interactive voice- and/or key
press-activated opt-out mechanism that enables the called person to make an opt-out request prior
to terminating the call; voice calls that could be answered by an answering machine or voice mail
service must include a toll-free number that the consumer can call to opt out of future notification
calls; and
7) the collect call service provider must honor opt-out requests immediately.
46. Our grant of an exemption, to the extent indicated herein, of GTL’s Petition is limited to
calls that the record indicates are exclusively focused on obtaining billing information for collect calls
that an inmate has sought to initiate, and that we determine protect consumers’ privacy interests. The
exemption applies to prerecorded calls to wireless phone numbers assigned to a cellular service and only
applies so long as those calls are not charged to the consumer recipient, including not being counted
against the consumer’s plan limits, and the caller complies with the enumerated conditions we adopt
today. The conditions we adopt protect consumers’ privacy interests and allow collect call service
providers to complete inmate calls in a timely manner while providing the recipients of the follow-up
calls with the opportunity to opt out of future calls, which is critical to our exercise of our statutory
authority to grant an exemption under section 227(b)(2)(C).
181
3. Consent and Called Party
a. Establishing Consent
47. We clarify that the fact that a consumer’s wireless number is in the contact list on another
person’s wireless phone, standing alone, does not demonstrate consent to autodialed or prerecorded calls,
including texts.
182
Additionally, we clarify that a called party may revoke consent at any time and through
(...continued from previous page)
seeking to solicit customers for their service to a number an inmate has not already attempted to call. Likewise, no
one other than inmate calling services providers who abide by these conditions may make calls under this
exemption.
179
47 U.S.C. § 227(b)(2)(C).
180
See Cargo Airline Order, 29 FCC Rcd 3432 at *3, para. 12 (stating that the Commission interprets the “no
charge” requirement to “preclude exempting notifications that count against the recipient’s plan minutes or texts”).
The exemption applies to robocalls to wireless numbers only if they are not charged to the recipient.
181
47 U.S.C. § 227(b)(2)(C).
182
See paras. 51-52, infra.
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Federal Communications Commission FCC 15-72
any reasonable means. A caller may not limit the manner in which revocation may occur.
183
Moreover,
we emphasize that regardless of the means by which a caller obtains consent, under longstanding
Commission precedent, if any question arises as to whether prior express consent was provided by a call
recipient, the burden is on the caller to prove that it obtained the necessary prior express consent.
184
48. YouMail and Glide raise two distinct consent issues. YouMail asks the Commission to
consider that, when a caller leaves a voicemail message for a YouMail app user, “the leaving of a
message almost universally signifies that the caller wishes to receive a return communication.”
185
The
first question pertaining to consent, therefore, is whether a caller who leaves a voicemail message
necessarily consents to receive an automated text message via an app in response. Glide asks the
Commission to clarify that an app provider can reasonably rely on “any consent to make social
communications that the [third party] call recipient has provided to the app user.”
186
Glide asserts that app
users have prior relationships with the “contacts listed in their devices’ address books” and so the third
party call recipient “expects to receive social calls and messages from the [app] user, and thus the [app]
user should be presumed to have prior express consent to ‘make’ a call or message [through the app] to
such a contact.”
187
Based on this argument, the second question pertaining to consent is whether an app
provider can be found to have obtained prior express consent to place non-telemarketing calls to contacts
in an app user’s address book based on the fact that the numbers called are in that address book.
49. Although prior express consent is required for autodialed or prerecorded non-
telemarketing voice calls and texts, neither the Commission’s rules nor its orders require any specific
method by which a caller must obtain such prior express consent.
188
The Commission recently held that
the TCPA does not prohibit a caller from obtaining a consumer’s prior express consent through an
intermediary.
189
In reaching this conclusion, the Commission relied, in part, on the 1992 TCPA Order,
which states: “[P]ersons who knowingly release their phone numbers have in effect given their invitation
or permission to be called at the number which they have given, absent instructions to the contrary.”
190
The Commission reiterated in the GroupMe Declaratory Ruling that, while the scope of consent must be
determined upon the facts of each situation, it was reasonable to interpret the TCPA to permit a texter
such as GroupMe to send texts based on the consent obtained by and conveyed through an intermediary
(the group organizer), with the caveat that if consent was not actually obtained, GroupMe remained liable
for initiating or making autodialed text messages to wireless numbers.
191
Importantly, the Commission
emphasized that an intermediary can only convey consent that has actually been obtained, and cannot
183
See paras. 55-70, infra.
184
See ACA Declaratory Ruling, 23 FCC Rcd at 565, para. 10 (concluding that “[s]hould a question arise as to
whether express consent was provided, the burden will be on [the caller] to show it obtained the necessary prior
express consent”).
185
YouMail Petition at 13.
186
Glide Petition at 16; see also id. at 5 (stating the argument slightly differently).
187
Id. at 16.
188
As stated in 2012, the TCPA and our rules require “some form of prior express consent for autodialed or
prerecorded non-telemarketing calls to wireless numbers” and “leave[] it to the caller to determine, when making an
autodialed or prerecorded non-telemarketing call to a wireless number, whether to rely upon oral or written consent
in complying with the statutory consent requirement.” 2012 TCPA Order, 27 FCC Rcd at 1842, para. 29.
189
Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, GroupMe, Inc./Skype
Communications S.A.R.L. Petition for Expedited Declaratory Ruling, CG Docket No. 02-278, 29 FCC Rcd 3442 at
*2, paras. 7-8 (2014) (GroupMe Declaratory Ruling).
190
1992 TCPA Order, 7 FCC Rcd at 8769, para. 31.
191
GroupMe Declaratory Ruling, 29 FCC Rcd 3442 at *4, para. 11.
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provide consent on behalf of another party.
192
50. Turning first to YouMail’s question regarding consent,
193
because we find above that it
does not initiate or make the text at issue, it need not acquire the recipient consumer’s consent, making its
request on this point moot. By contrast, we have found Glide to be the maker or initiator of its messages,
and thus address its question on consent. Glide asserts that it should be able to rely on “social
conventions” to determine its “users’ and consumers’ expectations.”
194
Glide notes that, through the
Glide app, invitational messages can only be sent to “recipients with whom the user has a prior
relationship, as demonstrated by the fact that the recipient is in the senders’ device’s contact list.”
195
This
“pre-existing relationship,” Glide argues, “demonstrates that the recipient expected and intended to
receive messages from the sender.”
196
Consequently, Glide asserts, it can reasonably rely on any consent
to make “social communications” that the call recipient has provided to the Glide user, and “the user
should be presumed to have prior express consent to ‘make’ a call or message to such a contact.”
197
51. We agree with commenters who opposes Glide’s argument and remark that a contact’s
presence in a contact list or address book does not establish consent to receive a message from the app
platform.
198
Commenters also argue that recipients of the invitational messages did not convey consent to
Glide, nor did Glide obtain consent from the recipients of the invitational messages.
199
52. We clarify that the fact that a particular wireless telephone number is in the contact list on
a wireless phone, standing alone, does not demonstrate that the person whose number is so listed has
granted prior express consent as required by the TCPA.
200
We disagree with Glide that consent can be
“presumed.”
201
The TCPA and the Commission’s rules plainly require express consent, not implied or
“presumed” consent.
202
For non-telemarketing and non-advertising calls, express consent can be
demonstrated by the called party giving prior express oral or written consent
203
or, in the absence of
instructions to the contrary, by giving his or her wireless number to the person initiating the autodialed or
192
Id. at 29 FCC Rcd 3442 at *5, para. 14.
193
In its Petition, YouMail does not directly ask a question regarding this issue. Rather, it states that “the
confirmatory text messages that its [app users] can choose to send via the service . . . constitute the same type of
common sense, consumer-friendly messages that the Commission deemed consumers to consent to in the Soundbite
decision.” YouMail Petition at 2 (referencing SoundBite Declaratory Ruling); see also id. at 13 (“YouMail’s
experience (as common sense suggests) shows that the leaving of a message almost universally signifies that the
caller wishes to receive a return communication”), 16 (“YouMail’s experience, and common sense, dictate that
consumers consent to receiving auto-replies from the service”).
194
Glide Petition at 16.
195
Id. at 15.
196
Id. at 15-16.
197
Id. at 16.
198
Coffman Comments on Glide Petition at 2, 19; Intergovernmental Advisory Committee to the Federal
Communications Commission, Advisory Recommendation No: 2015-6 at para. 9 (May 15, 2015).
199
Coffman Comments on Glide Petition at 18; Dialing Services Comments on Glide Petition at 4; Shields
Comments on Glide Petition at 7; see also Gold Comments on YouMail Petition at 13.
200
This is especially true as to Glide. Glide does not assert that it has a relationship with the consumers listed in the
app user’s contact list to support a claim that it has obtained consent for it to send text messages to them, nor can we
discern any relationship between them and Glide.
201
Glide Petition at 16.
202
2012 TCPA Order, 27 FCC Rcd at 1838, 1841, paras. 20, 28.
203
Id. at 1841, para. 28.
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Federal Communications Commission FCC 15-72
prerecorded call.
204
By itself, the fact that a phone number is in a contact list fails to provide any evidence
that the subscriber to that number even gave the number to the owner of the contact list. To the contrary,
the owner of the contact list could have obtained the number by any variety of means other than the
subscriber providing it, such as receiving the phone number from a third party, capturing the phone
number from the Caller ID of a prior call, or being forwarded an electronic contact card by a third
party.
205
Standing alone, the fact that a particular telephone number is present in a contact list is not
sufficient to prove that the subscriber to that number gave oral or written prior express consent to be
called by the owner of the wireless telephone or by Glide.
53. Petitioner Edwards asks the Commission to clarify whether a creditor may make
autodialed or prerecorded message calls to a wireless number initially provided to the creditor as
associated with wireline service.
206
Edwards asserts that, where a consumer initially provides a wireline
number to a creditor and thereby grants consent to be called at that number regarding the debt, but later
ports
207
the wireline number to wireless service, the consent to be called regarding the debt does not apply
to the wireless number.
208
54. We clarify that porting a telephone number from wireline service to wireless service does
not revoke prior express consent.
209
Stated another way, if a caller obtains prior express consent to make
a certain type of call to a residential number and that consent satisfies all of the requirements for prior
express consent for the same type of call to a wireless number, the caller can continue to rely on that
consent after the number is ported to wireless. We agree with commenters
210
who note that, if the
consumer who gave consent to be called and later ported his wireline number to wireless no longer wishes
to be called because he may incur charges on his wireless number, it is the consumer’s prerogative and
responsibility to revoke the consent.
211
Until such revocation occurs, the caller may reasonably rely on
the valid consent previously given and take the consumer at his word that he wishes for the caller to
contact him at the number he provided when the caller obtained the consent.
212
We stress that this
clarification in no way relieves a caller of the obligation to comply with the prior express consent
requirements applicable to calls to wireless numbers. Thus, for example, if a caller did not obtain prior
express consent for a type of call to the number when it was residential because no prior express consent
204
1992 TCPA Order, 7 FCC Rcd at 8769, para. 31; ACA Declaratory Ruling, 23 FCC Rcd at 564, para. 9 (“the
provision of a cell phone number to a creditor, e.g., as part of a credit application, reasonably evidences prior
express consent by the cell phone subscriber to be contacted at that number regarding the debt.”).
205
See, e.g., 1992 TCPA Order, 7 FCC Rcd at 8769, para. 31 (“[I]f a caller's number is ‘captured’ by a Caller ID or
an ANI device without notice to the residential telephone subscriber, the caller cannot be considered to have given
an invitation or permission to receive autodialer or prerecorded voice message calls.”).
206
See Edwards Petition at 3.
207
“Porting” a telephone number, as used here, refers to assigning or transferring the telephone number between
modes of service (wireline to wireless, or vice versa), or from one carrier to another within a single service mode;
the subscriber to the telephone number does not change. See AFSA Comments on Edwards Petition at 2; CBA
Comments on Edwards Petition at 2; USTelecom Comments on Edwards Petition at 4. We do not address changes
in the subscriber to a number in this context.
208
Edwards Petition at 2-3.
209
This would also be true for porting a number from wireless service to wireline service. Because of the higher
level of protection afforded wireless numbers, however, it is unlikely that a consumer porting a number to wireline
service would face the same concerns as a consumer porting a number to wireless service.
210
See Appendix F for a list of all commenters on the Edwards Petition.
211
See, e.g., DMA Comments on Edwards Petition at 3; InfoCision Comments on Edwards Petition at 2;
USTelecom at 3-4. See also paras. 55-70, infra, discussing revocation of consent.
212
DMA Comments on Edwards Petition at 2; USTelecom Comments on Edwards Petition at 4.
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Federal Communications Commission FCC 15-72
was required, but prior express consent is required for that type of call to a wireless number, the caller
would have to obtain the consumer’s prior express consent to make such calls after the number is ported
to wireless. These determinations and the Commission’s previous statements regarding provision of
consent are consistent with text of the TCPA, which states that it “shall be unlawful” to make a call to
either a “telephone number assigned to . . . cellular telephone service” or “any residential telephone line”
without the “prior express consent of the called party.”
213
While the TCPA states that a caller must have
the prior express consent of the called party in order to make or initiate a call to a number assigned to
cellular service or a residential line, it does not state that the prior express consent must be specific to the
type of service being called (either wireless or wireline). A caller will, of course, want to know whether a
number is assigned to wireless or wireline service so that he may ensure he has the necessary consent to
place the call;
214
that is a separate question from whether he has valid consent to place any call at all using
an autodialer, prerecorded voice, or artificial voice. We, therefore, deny Edwards’ Petition and clarify
that consent provided for a number assigned to wireline service remains valid after the consumer ports the
number to wireless service, absent indication from the consumer that he wishes to revoke consent.
215
b. Revoking Consent
55. Next we clarify that consumers may revoke consent through any reasonable means.
Santander asks whether a party can revoke previously-given consent. Specifically, Santander asks the
Commission to “clarify and confirm that ‘prior express consent’ to receive non-telemarketing [voice]
calls and text messages to cellular telephones sent using an [autodialer] and/or an artificial or prerecorded
voice message cannot be revoked.”
216
In the alternative, Santander requests that the Commission clarify
that the caller may designate the exclusive method or methods consumers must use to revoke “prior
express consent” previously granted to the caller. Santander offers the following possible revocation
methods it could accept: (1) in writing at the mailing address designated by the caller; (2) by email to the
email address designated by the caller; (3) by text message sent to the telephone number designated by
the caller; (4) by facsimile to the telephone number designated by the caller; and/or (5) as prescribed by
the Commission hereafter as needed to address emerging technology.
217
56. We turn first to the threshold issue of whether a consumer has the right to revoke
previously-given prior express consent. Because the TCPA does not speak directly to the issue of
revocation, the Commission can provide a reasonable construction of its terms.
218
We agree with the
Third Circuit that, “in light of the TCPA’s purpose, any silence in the statute as to the right of revocation
should be construed in favor of consumers.”
219
We therefore find the most reasonable interpretation of
213
47 U.S.C. § 227(b)(1)(A),(B).
214
See 47 C.F.R. § 64.1200(a)(1)-(3); see also 47 C.F.R. § 64.1200(a)(1)(iv).
215
In a November 3, 2014, filing, Edwards raised another issue. Edwards Comment in Docket 02-278, Nov. 3,
2014. He asks the Commission to clarify that “prior express consent cannot be obtained or required as a condition
for calling an entity to inquire about its good[s] and/or service[s].” Id. at 2 (alteration in original). Because Edwards
did not include this issue in his Petition and the Commission did not seek comment on it, the record is inadequate for
us to issue a decision.
216
Santander Petition at 1. Santander poses this question in the context of situations where a consumer voluntarily
has provided a wireless telephone number to a caller, such as by giving the number to the caller without instructing
the caller of any limits that the consumer is placing on his consent to receive robocalls at that number or by
including the number on a credit application. Id. at 2.
217
Santander Petition at 1, 9-14. Elsewhere in its Petition, Santander states its request differently by asking the
Commission to establish a requirement that consumers use one or more of these methods to revoke prior express
consent. Id. at 4.
218
See, e.g., Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
219
Gager v. Dell Financial Services, LLC, 727 F.3d 265, 270 (3rd Cir. 2013) (Gager).
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Federal Communications Commission FCC 15-72
consent is to allow consumers to revoke consent if they decide they no longer wish to receive voice calls
or texts. This gives consent its most appropriate meaning within the consumer-protection goals of the
TCPA. By contrast, an interpretation that would lock consumers into receiving unlimited, unwanted texts
and voice calls is counter to the consumer-protection purposes of the TCPA and to common-law notions
of consent.
57. Our finding here is consistent with two recent Commission decisions. In the SoundBite
Declaratory Ruling, the Commission concluded that a one-time text confirming a consumer’s request to
opt out of future calls did not violate the TCPA and thus emphasized the value to consumers of the right
to revoke, stating that “consumer consent to receive [confirmation text] messages is not unlimited,”
220
and
that “the consumer’s consent to receive text messages would be fully revoked in that situation [where the
consumer expressly opted out of confirmation messages] upon the sending of an opt-out request and the
prior express consent would not extend to a confirmation message.”
221
In the Anda Order, the
Commission stated that a “means to revoke such prior express permission is [] important to determine
whether prior express permission remains in place,” noting that without a method of revoking consent,
consumers would effectively be locked in “at a point where they no longer wish to receive such
[communication].”
222
58. Our decision also finds support in the well-established common law right to revoke prior
consent.
223
We agree with commenter Shields who argues that “Congress’ omission of a limited form of
revocation means that Congress intended for broad common law concepts of consent and revocation of
consent to apply.”
224
Nothing in the language of the TCPA or its legislative history supports the notion
that Congress intended to override a consumer’s common law right to revoke consent. We emphasize
that, regardless of the means by which a caller obtains consent, under longstanding Commission
precedent, the burden is on the caller to prove it obtained the necessary prior express consent if any
question of consent is in dispute.
225
59. We also reject Santander’s First Amendment arguments. It urges that common law
principles of revocation do not apply because any revocation right would be statutory rather than common
law and, because speech is involved, “Congress does not legislate against a background of general
220
SoundBite Declaratory Ruling, 27 FCC Rcd at 15397, para. 11.
221
Id. at 15397, para. 11 n.47; see also 1992 TCPA Order, 7 FCC Rcd at 8769, para. 31 (autodialed calls lawful
under the TCPA so long as the called party has granted “permission to be called at the number which they have
given, absent instructions to the contrary”). We note further that at least one appellate court has upheld a TCPA
right-to-revoke under both Commission precedent and common law. See, generally, Gager.
222
Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991; Junk Fax Prevention Act
of 2005; Application for Review filed by Anda, Inc.; Petitions for Declaratory Ruling, Waiver, and/or Rulemaking
Regarding the Commission’s Opt-Out Requirement for Faxes Sent with the Recipient’s Prior Express Permission,
CG Docket Nos. 02-278, 05-338, Order, 29 FCC Rcd 13998 at*6, para. 20 (2014) (Anda Order).
223
See Restatement (Second) of Torts § 892A, cmt. i. (1979) (“[C]onsent is terminated when the actor knows or has
reason to know that the other is no longer willing for him to continue the particular conduct.”).
224
See Shields Comments on Santander Petition at 11 (“An oral revocation during a telephone call is immediate. It
is also easy to comply with. An automated button press can easily accomplish that goal . . . . On the other hand, a
written revocation requirement will cause a delay in the revocation taking effect. It takes time for a letter to be
mailed and delivered. Then it must be opened and read by someone who must then process the revocation. Any
written revocation requirement will be fraught with possible errors in addressing, delivery and processing.”) Cf.
CCIA Comments on Santander Petition at 4 (arguing that callers should be given a 15-day period to act on a written
revocation request). See Appendix O for a list of all commenters on the Santander Petition.
225
See ACA Declaratory Ruling, 23 FCC Rcd at 565, para. 10 (concluding that “[s]hould a question arise as to
whether express consent was provided, the burden will be on [the caller] to show it obtained the necessary prior
express consent”).
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Federal Communications Commission FCC 15-72
common law principles, but against a background of First Amendment principles . . . .”
226
But, as we
describe above, we do not rely on common law to interpret the TCPA to include a right of revocation.
We simply note our conclusion is consistent with the common law right of revocation and do not attempt
to substitute common law for statutory law.
60. Santander next argues that any restriction of its First Amendment right to communicate
with its customers should be construed narrowly.
227
Santander states that, because Congress did not
“clearly provide for consumers to revoke consent, the statute must be construed so as to provide for no
right of revocation.”
228
At the outset, we note that TCPA restrictions have been challenged in several
instances on First Amendment grounds and upheld by the courts.
229
Our interpretation that consumers
may revoke previous consent—an interpretation already made by federal courts—establishes no new law
or prohibition on speech. Further, the Supreme Court has “repeatedly held that individuals are not
required to welcome unwanted speech into their homes and that the government may protect this
freedom.”
230
In particular, the government has an interest in upholding a person’s right to affirmatively
give notice that they no longer wish to receive communications from businesses.
61. To take one example, in Rowan v. United States Post Office, the Supreme Court upheld a
statute that permitted a person to require that a mailer remove his name from its mailing lists and stop all
future mailings to the resident:
The Court has traditionally respected the right of a householder to bar, by
order or notice, solicitors, hawkers, and peddlers from his property. In
this case the mailer’s right to communicate is circumscribed only by an
affirmative act of the addressee giving notice that he wishes no further
mailings from that mailer. . . . In effect, Congress has erected a wall—or
more accurately permits a citizen to erect a wall—that no advertiser may
penetrate without his acquiescence.
231
Rowan supports our finding that the government may protect a consumer’s right to revoke consent and
226
Ex Parte Letter from William H. Hurd, Counsel to Santander, to Marlene H. Dortch, Secretary, FCC in CG
Docket No. 02-278, at 2 (filed Aug. 28, 2014) (Santander August 28 Ex Parte). In making this argument, Santander
cites two District Court cases (citing Chavez v. Advantage Group, 959 F. Supp. 2d 1279 (D. Colo. 2013) and
Saunders v. NCO Financial Systems, Inc., 910 F. Supp. 2d 464 (E.D.N.Y. 2012)). These decisions merely state that
the TCPA does not include a provision that allows withdrawal of consent. Because the cases do not advance
Santander’s argument we do not address them in our analysis.
227
Santander August 28 Ex Parte at 3.
228
Id.
229
See, e.g., Kathryn Moser v. Federal Communications Commission, 46 F.3d 970 (9th Cir. 1995), cert. denied, 515
U.S. 1161 (1995) (upholding TCPA’s restrictions on prerecorded telephone calls from First Amendment challenge);
see also Osorio v. State Farm Bank, 746 F.3d 1242 (2014); Joffe v. Acacia Mortgage Corp., 121 P.3d at 841-43
(concluding that application of the TCPA’s restrictions on autodialed calls to wireless numbers contacted via
Internet-to-phone messaging did not violate any First Amendment rights); Maryland v. Universal Elections, Inc.,
729 F.3d 370, 377 (4th Cir. 2013) (holding that TCPA's disclosure requirements in Section 227(d) are
constitutional).
230
Frisby v. Schultz, 487 U.S. 474, 485; see also Federal Communications Commission v. Pacifica Foundation, 438
U.S. 726, 748 (1978) (“[I]n the privacy of the home, . . . the individual’s right to be left alone plainly outweighs the
First Amendment rights of an intruder.”).
231
Rowan v. United States Post Office, 397 U.S. 728 at 737-738 (1970); see also Martin v. City of Struthers, 319
U.S. 141 (1943), in which the Court struck down a ban on door-to-door solicitation because it “substituted the
judgment of the community for the judgment of the individual householder,” id. at 144, but noted in dicta that a
regulation “which would make it an offense for any person to ring a bell of a householder who has appropriately
indicated that he is unwilling to be disturbed” would be constitutional. Id. at 148.
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Federal Communications Commission FCC 15-72
stop future communications from businesses.
232
Indeed, some consumers may find unwanted intrusions
by phone more offensive than home mailings because they can cost them money and because, for many,
their phone is with them at almost all times.
62. We thus find no First Amendment concerns in allowing consumers to protect their
privacy from unwanted autodialed, prerecorded-voice, and artificial-voice calls. The right of revocation
does not implicate the business’ right to communicate with its customers; callers may manually dial calls
and thereby not invoke the TCPA’s restrictions on autodialed, prerecorded-voice, and artificial-voice
calls. The TCPA does not prohibit a business from communicating with its customer through robocalling,
but rather merely requires businesses to obtain prior express consent from the consumer to receive such
calls. Where the consumer gives prior express consent, the consumer may also revoke that consent.
Consequently, the speech with which Santander is concerned is not protected speech, but speech that is
made only with permission of the consenting consumer.
63. We next turn to whether a caller can designate the exclusive means by which consumers
must revoke consent. We deny Santander’s request on this point, finding that callers may not control
consumers’ ability to revoke consent. As an initial matter, we note the Commission’s statement in the
SoundBite Declaratory Ruling that “neither the text of the TCPA nor its legislative history directly
addresses the circumstances under which prior express consent is deemed revoked.” We thus may
provide a reasonable construction of the TCPA’s terms, and clarify that consumers may revoke consent in
any manner that clearly expresses a desire not to receive further messages, and that callers may not
infringe on that ability by designating an exclusive means to revoke.
64. Consumers have a right to revoke consent, using any reasonable method including orally
or in writing. Consumers generally may revoke, for example, 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, among
other possibilities. We find that in these situations, callers typically will not find it overly burdensome to
implement mechanisms to record and effectuate a consumer’s request to revoke his or her consent.
233
We
conclude that callers may not abridge a consumer’s right to revoke consent using any reasonable method.
The Commission has concluded as much for certain telemarketing calls, as our rules require that
telemarketing calls using a prerecorded or artificial voice “provide an automated, interactive voice- and/or
key press-activated opt-out mechanism for the called person to make a do-not-call request” and leave a
“toll free number that enables the called person to call back at a later time” if the call is answered by
voicemail.
234
And when the Commission granted an exemption from the TCPA in the Cargo Airline
Order, it required that callers give consumers a direct opt-out mechanism such as a key-activated opt-out
mechanism for live calls, a toll-free number for voicemails, and a reply of “STOP” for text messages.
235
The common thread linking these cases is that consumers must be able to respond to an unwanted call—
using either a reasonable oral method or a reasonable method in writing—to prevent future calls.
65. Santander argues that the Consumer Financial Protection Bureau’s mortgage servicing
232
While Rowan protects the right of a householder to bar unwanted communications from his property, we apply
the same principle here to a consumer’s right to bar unwanted communications to his or her cell phone. Consumers
can use cell phones anywhere, and they increasingly use them inside their homes as their only phone. Rowan,
therefore, is applicable to wireless phones despite its narrow focus on the rights of homeowners.
233
When assessing whether any particular means of revocation used by a consumer was reasonable, we will look to
the totality of the facts and circumstances surrounding that specific situation, including, for example, whether the
consumer had a reasonable expectation that he or she could effectively communicate his or her request for
revocation to the caller in that circumstance, and whether the caller could have implemented mechanisms to
effectuate a requested revocation without incurring undue burdens. We caution that callers may not deliberately
design systems or operations in ways that make it difficult or impossible to effectuate revocations.
234
47 C.F.R. § 64.1200(b)(3); see also 47 C.F.R. § 64.1200(a)(7)(i)(B).
235
See Cargo Airline Order, 29 FCC Rcd at 3438 at *5, para. 18.
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Federal Communications Commission FCC 15-72
rule allows the mortgage servicer to designate an exclusive means by which consumers may “submit
‘qualified written requests’ regarding servicing of their mortgage loans”
236
and that the Fair Credit
Reporting Act “allows a furnisher of consumer information to designate an address to which the
consumer must submit a dispute in writing regarding the accuracy of information furnished to consumer
reporting agencies.”
237
Santander adds that, “[a]s evidenced by these various consumer protection
statutes, allowing callers to designate a specific method for revoking ‘prior express consent’ strikes the
appropriate balance between protecting the privacy of consumers and allowing legitimate
communications between businesses and their own customers who have provided their “prior express
consent” to be called.”
238
We do not find Santander’s arguments regarding the mortgage servicing rule
and the Fair Credit Reporting Act persuasive. As the Fair Credit Reporting Act demonstrates, where
Congress intends to specify the means of opting out, it does so. The TCPA does not contain equivalent
language to either the mortgage servicing rule or the Fair Credit Reporting Act and we agree with the
court in Osorio that there is “no reason to assume that Congress intended to impose a similar in-writing
requirement on the revocation of consent under the TCPA.”
239
66. As we have found above, the most reasonable interpretation of “prior express consent” in
light of the TCPA’s consumer protection goals is to permit a right of revocation. To then interpret the
same term to allow callers to designate the exclusive means of revocation would, at least in some
circumstances, materially impair that right. For example, if a caller receives a consumer’s valid oral
consent for certain messages but requires the consumer to fax his or her revocation to the caller, perhaps
with additional conditions as to the content of such a revocation, such conditions materially diminish the
consumer’s ability to revoke by imposing additional burdens—especially if disclosure of such conditions
is not clear and conspicuous, and not repeated to the consumer with each message.
67. Such a requirement would place a significant burden on the called party who no longer
wishes to receive such calls, which is inconsistent with the TCPA. Rather, the TCPA requires only that
the called party clearly express his or her desire not to receive further calls. This common-sense
understanding of revocation is consistent with the Commission’s requiring easy means of revocation
240
and the notion that “any silence in the statute as to the right of revocation should be construed in favor of
consumers,”
241
while acknowledging that where Congress has intended that the means of revocation be
limited, it has said so clearly.
242
By contrast, granting Santander’s request arguably would mean that a
caller—even one with actual knowledge that a consumer has revoked previously-given consent—would
be free to robocall a consumer without facing TCPA liability, despite the consumer’s repeated reasonable
attempts to revoke consent.
68. Santander advances three primary arguments in support of its position: 1) that
236
Santander Petition at 12 (citing 12 C.F.R. § 1024.35(c); 12 C.F.R. § 1024.36(b); 12 U.S.C. § 2605(e)).
237
Santander Petition at 14 (emphasis omitted) (citing 15 U.S.C. § 1681s-2(a)(D).
238
Santander Petition at 14-15.
239
Osorio v. State Farm Bank, 746 F.3d 1242, 1255 (2014) (Osorio) (Because the TCPA “lacks equivalent language
[to the Fair Debt Collection Practices Act’s requirement that requests to not be called be in writing], we have no
reason to assume that Congress intended to impose a similar in-writing requirement on the revocation of consent
under the TCPA.”).
240
2012 TCPA Order, 27 FCC Rcd at 1849 (requiring that consumers have an automated, interactive means of
revoking consent on each call in part because such a mechanism is more effective for consumers than requiring a
separate call to revoke).
241
Gager, 727 F.3d 265 at 270.
242
Osorio, 746 F.3d at 1255 (Because the TCPA “lacks equivalent language [to the Fair Debt Collection Practices
Act’s requirement that requests to not be called be in writing], we have no reason to assume that Congress intended
to impose a similar in-writing requirement on the revocation of consent under the TCPA.”).
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Federal Communications Commission FCC 15-72
informational calls should be treated differently from telemarketing calls in determining whether or how
consumers may revoke consent, because “the TCPA was not intended to restrict business from placing
informational and other non-telemarketing calls to their customers”;
243
2) that the Junk Fax Prevention
Act (JFPA) revocation requirements show that Congress intended not to allow oral revocation under the
TCPA;
244
and 3) that allowing for oral revocation puts defendant callers at a disadvantage in TCPA court
proceedings.
245
We address each of these arguments in turn.
69. Contrary to Santander’s argument, the Commission’s policy, consistent with the plain
language of the TCPA, is to treat informational and telemarketing calls to wireless phones the same.
246
We do so again today, and find no reason here to differentiate the two. We also find misplaced its
reliance on the revocation provisions of the JFPA. The JFPA’s revocation provisions override the
common law standard for revocation through statutory language.
247
Had Congress intended to do the
same for calls subject to the TCPA, it could explicitly have done so as it did in the fax context. The fact
that Congress did not establish specific revocation procedures for revoking consent to receive autodialed
or prerecorded calls suggests that Congress intended for the consumer’s right to revoke consent in such
cases to be broader.
248
We therefore disagree with arguments that “the absence of a revocation provision
for non-telemarketing calls should signal to the FCC that Congress intended no such right.”
249
70. Finally, Santander argues that allowing oral revocation puts defendant callers at a
disadvantage in “he said, she said” situations regarding revocation.
250
We disagree. The well-established
evidentiary value of business records means that callers have reasonable ways to carry their burden of
proving consent.
251
We expect that responsible callers, cognizant of their duty to ensure that they have
prior express consent under the TCPA and their burden to prove that they have such consent, will
maintain proper business records tracking consent. Thus, we see no reason to shift the TCPA compliance
burden onto consumers and affirm that they do not bear the burden of proving that a caller did not have
prior express consent for a particular call. We, therefore, find that the consumer may revoke his or her
243
Santander Petition at 5.
244
See Ex Parte Letter from William H. Hurd, Counsel to Santander, to Marlene H. Dortch, Secretary, FCC in CG
Docket No. 02-278, at 3 (filed Aug. 28, 2014).
245
See also AFSA Comments on Santander Petition at 2; CCIA Comments on Santander Petition at 5.
246
See para. 123, infra, determining that the TCPA’s restrictions on autodialed calls to wireless numbers apply
equally to telemarketing and informational calls.
247
Compare Restatement (Second) of Torts § 892A, cmt. i. (1979) (“[C]onsent is terminated when the actor knows
or has reason to know that the other is no longer willing for him to continue the particular conduct.”) with 47 U.S.C.
§ 227(b)(2)(E) (codification of JFPA) (requiring FCC to adopt regulation that a request not to send future unsolicited
fax ads must comply with specific statutory requirements, including: identifying the phone numbers to which the
request relates; making the request to the opt-out number identified on the fax; and the person making the request
has not, subsequent to the request, given permission to send such advertisements to such person at such fax
machine).
248
See Neder v. United States, 527 U.S. 1 (1999); see also Osorio, 746 F.3d at 1252 (“[W]here Congress uses terms
that have accumulated settled meaning under . . . the common law, a court must infer, unless the statute otherwise
dictates, that Congress means to incorporate the established meaning of those terms.”). See also Gager, 727 F.3d
265, 270 (“in light of the TCPA’s purpose, any silence in the statute as to the right of revocation should be construed
in favor of consumers”).
249
Commissioner O’Rielly Partial Dissent at 12.
250
See Santander Petition at 8.
251
2012 TCPA Order, 27 FCC Rcd at 1844, para. 33; Fed. R. Evid. 803(6)(B); see also 2012 TCPA Order, 27 FCC
Rcd at 1844, para. 33 (“should any question about the consent arise, the seller will bear the burden of demonstrating
that a clear and conspicuous disclosure was provided and that unambiguous consent was obtained”); Fed. R. Evid.
803(6)(B).
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Federal Communications Commission FCC 15-72
consent in any reasonable manner that clearly expresses his or her desire not to receive further calls, and
that the consumer is not limited to using only a revocation method that the caller has established as one
that it will accept.
c. Reassigned Wireless Telephone Numbers
71. CBA, Rubio’s, Stage, and United request clarification pertaining to reassigned wireless
telephone numbers. Specifically, they ask whether a caller making a call subject to the TCPA to a
number reassigned from the consumer who gave consent for the call to a new consumer is liable for
violating the TCPA.
252
This occurs, United asserts, because “[t]here is no public wireless telephone
number directory and individuals may change their phone numbers without notifying callers beforehand,”
and because “good faith errors” such as incorrect entry of phone numbers into computer databases may
occur.
253
United argues that this inevitably results in calls to “reassigned [wireless] telephone numbers
despite efforts to contact only the specific individuals who provided ‘prior express consent’ for those
wireless telephone numbers.”
254
While CBA, Rubio’s, and United are concerned with informational
calls—and United is concerned with healthcare-related informational calls in particular—Stage requests
clarification for marketing calls but asserts as its own the arguments made by United and comments by
Comcast and others in support of United’s Petition.
255
72. We clarify that the TCPA requires the consent not of the intended recipient of a call,
256
but of the current subscriber (or non-subscriber customary user of the phone) and that caller best practices
252
CBA Petition at 9; Rubio’s Petition at 3-6; Stage Petition at 1-5; United Petition at 2-5; see also 47 U.S.C. §
227(b)(1)(A); 47 C.F.R. § 64.1200(a)(1).
253
United Petition at 3; see Stage Petition at 3.
254
United Petition at 3; see Stage Petition at 3-4.
255
CBA Petition at 15; Rubio’s Petition at 3; Stage Petition at 1; United Petition at 3. Commenters in support of
United argue that the Commission should grant broader relief than United requests, applying any exception or safe
harbor for calls to reassigned numbers to telemarketing as well as informational calls. Comcast Comments on
United Petition at 7; Dominion Comments on United Petition at 5; TWC Comments on United Petition at 3-4; see
also Chamber Reply Comments on United Petition at 3; Ex Parte Letter from Stephanie L. Podey, Counsel to
National Cable & Telecommunications Association, to Marlene H. Dortch, Secretary, FCC in CG Docket No. 02-
278, at 2 (filed April 25, 2014).
Comcast styled its comment on the United Petition as a “Comment or, in the Alternative, Petition for Declaratory
Ruling.” Comcast Comments on United Petition at 1. Comcast requests that the Commission provide relief broader
than that requested by United, to include any informational and telemarketing calls. Id. at 1-2. We treat Comcast’s
filing as a comment on United’s Petition, arguing that we should grant broader relief than requested by United,
rather than a Petition for Declaratory Ruling. Although Comcast is not clear under what circumstances it wishes the
Commission to treat its filing as a Petition for Declaratory Ruling, we believe it intended its filing to be a Petition
for Declaratory ruling if we did not choose to address calls outside the scope of United’s request (i.e., calls regarding
subjects other than healthcare information). Because we do address such other calls in our decision, we treat
Comcast’s filing as a comment.
256
While the Parties raise this issue in the context of calls to reassigned wireless numbers, we include in the
discussion of the definition of “called party” robocalls to “wrong numbers,” by which we mean numbers that are
misdialed or entered incorrectly into a dialing system, or that for any other reasons result in the caller making a call
to a number where the called party is different from the party the caller intended to reach or the party who gave
consent to be called. Consumers strongly support this broad interpretation. On January 20, 2015, in response to
news stories regarding this issue, 69 individuals filed comments in this docket expressing their concern that the
Commission not weaken the TCPA’s restrictions for “wrong number” calls to wireless numbers. See, e.g.,
comments filed on Jan. 20, 2015, by Scott Chapman, Nora Cross, Adam Fischer, Kevin Kretz, Julie Newton, David
Scheir, and Michael Worsham; see also Letter from 25 National Advocacy Organizations and 55 State and
Community Organizations to Tom Wheeler, Chairman, and Commissioners Clyburn, O’Rielly, Pai, and
Rosenworcel, Federal Communications Commission, CG Docket No. 02-278 (Jan. 15, 2015); but see n. 262, infra.
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can facilitate detection of reassignments before calls. We generally agree
257
with commenters who
oppose granting these requests that there are solutions in the marketplace to better inform callers of
reassigned wireless numbers;
258
that businesses should institute new or better safeguards to avoid calling
reassigned wireless numbers and facing TCPA liability;
259
and that the TCPA requires consent from the
actual party who receives a call.
260
We clarify, however, that callers
261
who make calls without
knowledge of reassignment and with a reasonable basis to believe that they have valid consent to make
the call should be able to initiate one call after reassignment as an additional opportunity to gain actual or
constructive knowledge of the reassignment and cease future calls to the new subscriber.
262
If this one
additional call does not yield actual knowledge of reassignment, we deem the caller to have constructive
knowledge of such.
(i) Meaning of “Called Party”
73. The TCPA states that it “shall be unlawful” to “make any call” using an autodialer or an
artificial or prerecorded voice, absent certain exceptions, without “the prior express consent of the called
party.”
263
We find that the “called party” is the subscriber, i.e., the consumer assigned the telephone
257
These issues are discussed further in paras. 86-93, infra. As discussed in those paragraphs, marketplace solutions
for identifying reassigned numbers are not perfect; we interpret the TCPA to permit one additional call to a
reassigned number, over an unlimited period of time, in order to obtain actual or constructive knowledge of the
reassignment. We permit this where the caller does not have actual knowledge of the reassignment and can show
that he had consent to make the call to the previous subscriber or customary user of the number.
258
Biggerstaff Comments on United Petition at 2-4; Lucas Comments on United Petition at 2; Mey Comments on
United Petition at 1; NCLC Comments on Rubio’s Petition at 2; NCLC Comments on United Petition at 2; Roylance
Comments on United Petition at 2; Roylance Reply Comments on United Petition at 3, 5; Shields Comments on
Rubio’s Petition at 4; Shields Comments on United Petition at 2; Shields Comments on Reply Comments of United
to United Petition (March 2014); Shields Reply Comments on United Petition at 2-3; Sutton Comments on United
Petition at 1.
259
Barry Comments on United Petition at 1; Lucas Comments on United Petition at 2; NCLC Comments on United
Petition at 2; Roylance Comments on United Petition at 2; Sutton Comments on United Petition at 1.
260
Biggerstaff Reply Comments on CBA Petition at 4; NCLC et al Comments on CBA Petition at 10; Lucas
Comments on CBA Petition at 1; Shields Comments on Rubio’s Petition at 5; Shields Comments on Stage Petition
at 2; Shields Reply Comments to Twitter’s Comments on Stage Petition at 2; Roylance Reply Comments on United
Petition at 1; Shields Comments on United Petition at 4; see also Ex Parte Letter from Ellen Taverna and Margot
Saunders, Counsel to National Association of Consumer Advocates and National Consumer Law Center, to Marlene
H. Dortch, Secretary, FCC in CG Docket No. 02-278 (filed Feb. 19, 2015) (The ex parte filing on behalf of eight
organizations includes a list of 58,000 individuals who support the statement: “Tell the FCC: No robocalls to cell
phones without our consent.” The list includes a de minimis number of signatures for which an address in Canada is
given.).
261
For purposes of this discussion and the one-additional-call opportunity for obtaining actual or constructive
knowledge of the reassignment of a wireless number, a single caller includes any company affiliates, including
subsidiaries. Such a single caller shall be allowed to make a total of one additional call to a wireless phone number
for which it reasonably believes it has valid consent. In other words, two affiliated entities may not make one call
each, but rather one call in total.
262
While we include in the discussion of the meaning of “called party” calls to numbers that are misdialed, entered
incorrectly into a dialing system, etc., the discussion of calls to reassigned wireless numbers is limited to calls for
which the caller would have had the valid prior express consent of the subscriber or customary user but for the
reassignment, and where the caller is unaware of the reassignment at the time the call is made. Consequently,
misdialed calls, calls where the number is entered incorrectly into a dialing system, etc., are not eligible for the
opportunity to make one additional call to discover whether the number has been reassigned; the caller never had
valid prior express consent from the subscriber or customary user to make any call to that misdialed or incorrectly-
entered phone number.
263
47 U.S.C. § 227(b)(1).
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Federal Communications Commission FCC 15-72
number dialed and billed for the call, or the non-subscriber customary user of a telephone number
included in a family or business calling plan. Both such individuals can give prior express consent to be
called at that number.
264
Thus, with the limited exception discussed below,
265
calls to reassigned wireless
numbers violate the TCPA when a previous subscriber, not the current subscriber or customary user,
provided the prior express consent on which the call is based.
74. As a threshold matter, we find the term “called party” to be ambiguous for TCPA
purposes. The statute does not define “called party,” nor does it include modifiers such as “intended” that
would clarify its meaning in the way that Petitioners urge.
266
We find support in the structure of the
TCPA, however, for interpreting “called party” as the subscriber and customary users. Specifically, the
TCPA’s restriction on autodialed, artificial-voice, or prerecorded-voice calls to wireless numbers applies,
inter alia, to “any service for which the called party is charged for the call.”
267
In a separate provision, the
TCPA allows the Commission to exempt calls from the consent requirement if the called party is not
charged, subject to conditions to protect consumer privacy.
268
Thus, “called party” is best understood to
mean the subscriber to whom the dialed wireless number is assigned because the subscriber is “charged
for the call” and, along with a non-subscriber customary user, is the person whose privacy is interrupted
by unwanted calls. The TCPA’s legislative history buttresses this interpretation, stating that it is the
“receiving party”—not the intended party—that consents to the call.
269
75. We find it reasonable to include in our interpretation of “called party” individuals who
might not be the subscriber, but who, due to their relationship to the subscriber, are the number’s
customary user and can provide prior express consent for the call.
270
In construing the term “prior express
consent” in section 227(b)(1)(A), we consider the caller’s reasonableness in relying on consent. The
record indicates that it is reasonable for callers to rely on customary users, such as a close relative on a
subscriber’s family calling plan or an employee on a company’s business calling plan, because the
subscriber will generally have allowed such customary users to control the calling to and from a particular
number under the plan, including granting consent to receive robocalls.
271
The caller in this situation
264
Contrary to an argument raised in a dissenting statement, our clarification of the definition of “called party” is
entirely consistent with the ACA Declaratory Ruling. See Commissioner Pai Dissent at 7; ACA Declaratory Ruling,
23 FCC Rcd at 564, para. 9. In the ACA Declaratory Ruling, the Commission addressed calls made to the person
(the debtor) who actually consented by providing the phone number being called. Commissioner Pai argues that the
Commission interpreted “called party” to mean “intended recipient,” and yet the same paragraph of the ACA
Declaratory Ruling he cites for that proposition directly supports our finding here, with the Commission stating that
“[w]e conclude that the provision of a cell phone number by a creditor . . . reasonably evidences prior express
consent by the cell phone subscriber regarding the debt.” Id. (emphasis added).
265
We interpret the TCPA to permit the caller to make or initiate one additional call to a reassigned number, over an
unlimited period of time, where the caller does not have actual knowledge of the reassignment and can show that he
had consent to make the call to the previous subscriber or customary user of the number. See paras. 85-93, infra.
266
47 U.S.C. § 227(b)(1)(A); see also Shields Comments on Stage Petition at 2; Shields Reply Comments to
Twitter’s Comments on Stage Petition at 2; Shields Comments on United Petition at 4.
267
47 U.S.C. § 227(b)(1)(A)(iii).
268
Id. § 227(b)(2)(C).
269
Pub. L. No. 102-243, § 2(12) (1991); NCLC et al Comments on CBA Petition at 6-7.
270
See, e.g., Soulliere v. Central Florida Investments, 2015 WL 1311046, *4 (M.D. Fla. 2015) (“Generally, the
subscriber is the person who is obligated to pay for the telephone or needs the line in order to receive other calls and
has the authority to consent to receive calls that would otherwise be prohibited by the statute. However, in some
cases the subscriber transfers primary use of the telephone to another, as Plaintiff’s employer did here. In such a
case, the primary user may be the subscriber’s agent, thereby permitting the primary user to consent to being
called.”) (internal citations omitted).
271
See, e.g., Chamber Reply Comments on CBA Petition at 3; Wells Fargo Comments on CBA Petition at 3; Wells
Fargo Reply Comments on CBA Petition at 4.
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Federal Communications Commission FCC 15-72
cannot reasonably be expected to divine that the consenting person is not the subscriber or to then contact
the subscriber to receive additional consent. To require callers to ignore consent received from customary
users in this context would undermine the full benefits of these calling plans for such users and place
additional unwanted burdens on the actual subscribers.
76. Our finding fulfills Congress’s intent that the TCPA not prohibit normal business
communications
272
and is consistent with the Commission’s finding that providing one’s phone number
evidences prior express consent to be called at that number, absent instructions to the contrary.
273
Similarly, when an individual who is not the subscriber or other customary user answers the phone due to
his or her proximity to those individuals, for example a passenger in the subscriber’s car or the customary
user’s houseguest, there is no TCPA violation when the current subscriber or customary user has given
the necessary prior express consent for the call. Nothing in the TCPA suggests that Congress intended to
outlaw such calls, whereas imposing liability could unduly stifle such communications and interfere with
normal business communications that are “expected or desired . . . between businesses and their
customers,” contrary to the intent of Congress in enacting the TCPA.
274
77. In arriving at our decision, we reject one commenter’s argument that we lack authority to
clarify the meaning of “called party.”
275
NCLC argues that a clarification of “called party” as urged by
the Petitioners amounts to granting an exemption from the TCPA for calls to the actual called party, and
that such exemptions can only be granted pursuant to section 227(b)(2)(C) of the Act and thus must be for
calls that are free to the consumer.
276
We disagree with NCLC and find that we may simply interpret
“called party” in light of its ambiguity, as detailed above, independent of the exemption provision in the
Act. Thus, whether the calls are free or not is irrelevant to our interpretation.
78. We also reject CBA’s Petition and some commenters’ proposals that we interpret “called
party” to be the “intended recipient” or “intended called party.”
277
We agree with the Seventh and
Eleventh circuits
278
that the TCPA nowhere indicates that caller intent is relevant to the definition of
272
SoundBite Declaratory Ruling, 27 FCC Rcd at 15395, para. 8 (quoting H.R. REP. NO. 102-317, 1st Sess., 102nd
Cong. (1991) at 17). For example, a normal business communication could involve an employee providing his or
her employer-provided wireless phone number to a customer, client, or other business associate for the purpose of
transacting business within the scope of his or her employment.
273
1992 TCPA Order, 7 FCC Rcd at 8769, para. 31.
274
SoundBite Declaratory Ruling, 27 FCC Rcd at 15395, para. 8 (quoting H.R. REP. NO. 102-317, 1st Sess., 102nd
Cong. (1991) at 17).
275
NCLC et al Comments on CBA Petition at 5.
276
See id.; 47 U.S.C. § 227(b)(2)(C).
277
CBA Petition at 3; AFSA Comments on CBA Petition at 2; Nonprofits Comments on Rubio’s Petition at 4, 6;
NRECA Comments on CBA Petition at 5; Twitter Comments on Stage Petition at 9-11; Wells Fargo Comments on
Rubio’s Petition at 4-8; Wells Fargo Comments on Stage Petition at 11-17.
278
Soppet v. Enhanced Recovery Co., LLC, 679 F.3d 637, 639-40 (7th Cir. 2012) (noting that the phrase “intended
recipient” does not appear in the TCPA, and concluding that “called party” “means the person subscribing to the
called number at the time the call is made”); Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242, 1251-52 (11th Cir.
2014) (rejecting the argument that the “intended recipient” is the “called party” in 47 U.S.C. § 227 and stating that
only the subscriber can give consent to be called). In Soppet, two plaintiffs who had subscribed to wireless numbers
at least three years prior received 18 and 29 calls from debt collectors, intended for the previous subscribers to the
numbers; the subscriber to the wireless number in Osorio received 327 calls from a debt collector over a six-month
period. Soppet, 679 F.3d at 639; Osorio, 746 F.3d at 1246; see also Ex Parte Letter from Margot Saunders, National
Consumer Law Center, to Marlene H. Dortch, Secretary, FCC in CG Docket No. 02-278, at 4 (filed May 12, 2014)
(discussing the rate of autodialed calls by debt collectors, noting that collectors “use automated dialing systems that
will place a million calls per day” and that one loan agency “admitted that 10-20 calls per day, and 1,000 calls over
several months, were not unusual or unreasonable”).
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Federal Communications Commission FCC 15-72
“called party.” As described above, an “intended called party” standard does nothing to protect the new
subscriber to a reassigned number. Second, “intended” is a subjective standard that would render
enforcement difficult, if not impossible, because evidence of intent may not be objective or available
(e.g., documents showing who the caller intended to call) and lies within the exclusive control of the
caller. Moreover, interpreting “called party” to mean “intended party” is inconsistent with recent
Commission decisions that the consent of one party cannot be binding on another;
279
we recognize,
however, that the consent of a customary user of a telephone number may bind the subscriber. We
disagree with the commenter who argues that interpreting “called party” to mean anything other than
“intended recipient” would render meaningless the statutory defense of prior express consent.
280
Callers
may use prior express consent to defend against liability when they obtain such consent from the “called
party,” as we have interpreted that term, and, for the limited purpose described below, when they obtained
consent from the previous subscriber.
79. Our conclusion protects consumers from often voluminous, sometimes harassing calls.
281
Robocalls can take many forms, but the record here highlights two specific types—reminder calls that
may be welcome by intended recipients and debt collection calls that often are not. Our interpretation of
“called party” would nevertheless apply to all types of robocalls because the TCPA does not distinguish
“called party” by content. Were we to adopt “intended called party” as our standard, unwitting recipients
of reassigned numbers might face a barrage of telemarketing voice calls and texts along with debt
collection calls. On the latter, there is clear, unrebutted evidence that these calls pose a unique concern
for consumers. Record evidence shows that when consumers complain about debt collection calls, a third
of the time they complain that there is no debt to be collected, including that they never owed the debt.
282
More than one of every five complaints is about communications tactics, including frequent or repeated
calls; obscene, profane or other abusive language; and calls made after written requests to stop.
283
And
the record contains evidence, also unrebutted by Petitioners, that such calls sometimes lack a means for
consumers to ask that they stop, and can even instruct the consumer to hang up if they are not the debtor,
or that callers may have a policy to not speak to anyone other than the debtor.
284
80. By clarifying that the caller’s intent does not bear on liability, we make clear that such
calls are exactly the types that the TCPA is designed to stop. We agree with commenters who argue that
Petitioners’ position, on the other hand, would turn the TCPA’s consumer protection on its head.
285
The
279
GroupMe Declaratory Ruling, 29 FCC Rcd 3442 at *5, para. 14.
280
Ex Parte Letter from Monica S. Desai, Counsel to Wells Fargo, to Marlene H. Dortch, Secretary, FCC in CG
Docket No. 02-278, at 4 (filed July 21, 2014).
281
See, e.g., Intergovernmental Advisory Committee to the Federal Communications Commission, Advisory
Recommendation No: 2015-6 at para. 4 (May 15, 2015).
282
Ex Parte Letter from Margot Saunders, Counsel to National Consumer Law Center, to Marlene Dortch,
Secretary, FCC in CG Docket No. 02-278, at 9 (filed June 6, 2014) (“[t]he Consumer Financial Protection Bureau’s
Annual Report for 2013 shows that 33% of debt collection complaints involved continued attempts to collect debts
not owed, which include complaints that the debt does not belong to the person called” (citation omitted)). Another
CFPB report suggests that in about two-thirds of these complaints the consumer says they did not owe the debt.
Consumer Financial Protection Bureau’s Fair Debt Collection Practices Act, Annual Report for 2014, at 12,
available at http://files.consumerfinance.gov/f/201403_cfpb_fair-debt-collection-practices-act.pdf (last visited May
18, 2015).
283
Consumer Financial Protect Bureau, Consumer Response Annual Report (January 1, 2013, through December 31,
2013), at 17, available at http://files.consumerfinance.gov/f/201403_cfpb_consumer-response-annual-report-
complaints.pdf (last visited May 18, 2015).
284
See NCLC et al Comments on CBA Petition at 4; NCLC et al Reply Comments on CBA Petition at 2.
285
Shields Comments on CBA Petition at 9-10; Shields Reply Comments to Santander Comments on CBA Petition
at 3; Shields Comments on Rubio’s Petition at 10; Shields Comments on Stage Petition at 4; Shields Reply
Comments to Twitter’s Comments on Stage Petition at 3.
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Federal Communications Commission FCC 15-72
only step Petitioners offer that might stop repeated, unwelcome, and potentially costly calls to
unsuspecting consumers’ reassigned wireless numbers is that the caller obtain actual knowledge of
reassignment.
286
Petitioners would place the burden on new subscribers to inform the caller they are the
wrong party and that they do not consent to such calls.
287
In other words, Petitioners ask us to effectively
require consumers to opt out of such calls when the TCPA clearly requires the opposite—that consumers
opt in before they can be contacted.
81. Such a burden would be especially problematic for Public Safety Answering Points—a
category of called party that the TCPA specifically protects from unwelcome robocalls because of the
obvious public safety concerns of PSAP lines being clogged by unwanted calls.
288
To relieve callers of
liability when they robocall PSAPs would undermine the goal of that provision—to give robocallers
every incentive to call the correct number and to make sure there is liability when they do tie up a PSAP
line. We reiterate that the TCPA places no affirmative obligation on a called party to opt out of calls to
which he or she never consented; the TCPA places responsibility on the caller alone to ensure that he or
she has valid consent for each call made using an autodialer, artificial voice, or prerecorded voice.
289
A
caller may rely on the valid consent of a consenting party until that consenting party revokes the consent
and opts out of calls, but the subscriber to or customary user of a reassigned number has never consented
and therefore has nothing from which to opt out.
82. Petitioners offer no ideas on how consumers pursuing a TCPA action might prove callers
had knowledge of reassignment.
290
This is particularly problematic given evidence that callers sometimes
will not honor requests of new subscribers for a caller to cease calls to the newly acquired number.
291
For
286
For example, Wells Fargo argues that “called party” should be “interpreted and clarified to mean ‘intended
recipient’ of the call, exempting any call made in good faith to the number last provided by the intended call
recipient, until such time when the . . . new party notifies the company that the number has been reassigned.” Ex
Parte Letter from Monica S. Desai, Counsel to Wells Fargo, to Marlene H. Dortch, Secretary, FCC in CG Docket
No. 02-278, at 7 (filed July 21, 2014). Wells Fargo offers this proposed interpretation after arguing that interpreting
“called party” other than “intended recipient” “would be incompatible with the TCPA.” Id. at 6. We reiterate that
the text of the TCPA places no affirmative obligation on new subscribers to a reassigned wireless number to answer
calls to which the previous subscriber may have consented, or to place calls in response to voicemail messages left
for a previous subscriber in an effort to inform callers that the wireless number has been reassigned. These actions
could result in charges to the new subscriber to the reassigned wireless number; we thus find that a contrary view
also would be at odds with the TCPA’s stated goal of protecting consumers’ privacy, and its unique and heightened
protections for wireless consumers. See 1992 TCPA Order, 7 FCC Rcd at 8753-54, paras. 2-3; 2003 TCPA Order,
18 FCC Rcd at 14092, para. 133; 2012 TCPA Order, 27 FCC Rcd at 1839-40, para. 25.
287
We also note that there are good reasons that consumers may be reluctant to call back, or even speak to, callers
with unfamiliar numbers. Such calls can be pretextual for fraud schemes, including cramming. See, e.g., the
Federal Trade Commission’s Advice for Consumers on Robocalls, available at
http://www.consumer.ftc.gov/articles/0259-robocalls#What_Should (advising consumers who receive a robocall to
“[h]ang up the phone. Don't press 1 to speak to a live operator and don't press any other number to get your number
off the list. If you respond by pressing any number, it will probably just lead to more robocalls.”) (last visited May
18, 2015).
288
See, e.g., Intergovernmental Advisory Committee to the Federal Communications Commission, Advisory
Recommendation No: 2015-6 at para. 2 (May 15, 2015).
289
See 47 U.S.C. § 227(b)(1).
290
We discuss actual knowledge and constructive knowledge in more detail in the following paragraphs. Our
understanding of both is grounded in our reasonable interpretation that the term “prior express consent” requires that
the caller have either in the case of revocation of prior express consent.
291
NCLC et al Comments on CBA Petition at 3; NCLC et al Reply Comments on CBA Petition at 2. We reiterate
that the TCPA places no affirmative obligation on a called party to opt out of calls to which he or she never
consented.
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Federal Communications Commission FCC 15-72
example, would the consumer have to keep a written record of such requests and, if so, how would such a
requirement be consistent with the TCPA’s requirements that the caller obtain a consumer’s opt-in
consent for such calls, rather than adopting an opt-out approach?
292
We also reject several other Petitioner
arguments. First, Petitioners and supporting commenters state that making calls to reassigned numbers
subject to TCPA liability would chill such expected and desired communications. But what is clear from
the record is that the consumer who inherits the wireless number neither expects nor desires these calls.
To the extent that some desirable calls might be chilled, below we find that where certain conditions are
met, the first call to a wireless number after reassignment should not be subject to liability (absent actual
knowledge of reassignment), but rather may act as an opportunity for the caller to obtain constructive or
actual knowledge of reassignment.
293
Additionally, the reasonable steps we have identified for callers to
significantly reduce, if not eliminate, their TCPA liability for robocalls to reassigned wireless numbers
makes it more likely that callers will identify reassigned wireless numbers in a timely manner and,
therefore, make it more likely that callers will refrain from making such calls.
83. We disagree with commenters who support the Petitions
294
by arguing that despite their
good faith efforts, callers that need to reach consumers will inevitably call reassigned wireless numbers
because there is no public directory of wireless numbers or because consumers do not contact the
organizations when they change their wireless numbers;
295
and imposing liability for something callers
292
As noted above in the discussion on revoking consent, records made in the regular course of business are
considered to be sufficiently reliable to be admissible as evidence. Fed. R. Evid. 803(6)(B); see also 2012 TCPA
Order, 27 FCC Rcd at 1844, para. 33 (“should any question about the consent arise, the seller will bear the burden of
demonstrating that a clear and conspicuous disclosure was provided and that unambiguous consent was obtained”).
Responsible callers, cognizant of their duty to ensure that they have sufficient consent under the TCPA, will likely
maintain proper business records tracking consent. The veracity of such business records is a matter for triers of fact
to decide.
293
A caller might obtain actual knowledge of reassignment in a number of ways, such as by the called party
informing the caller that he or she is a new subscriber to the number or that the caller has reached a wrong phone
number, by accessing a paid database that reports the number as having a high probability of reassignment, by a
caller’s customer reporting a new phone number prior to receiving a call, or by receiving information from a
wireless carrier that the number is no longer in service or has been reassigned. A caller receives constructive
knowledge of reassignment by making or initiating a call to the reassigned number, which often can provide a
reasonable opportunity for the caller to learn of the reassignment in a number of ways, including by hearing a tone
indicating the number is no longer in service or hearing a name on a voicemail greeting that is different from the
name of the party the caller intended to call.
294
See Appendix D for a list of all commenters on the CBA Petition, Appendix N for a list of all commenters on the
Rubio’s Petition, Appendix P for a list of all commenters on the Stage Petition, and Appendix R for a list of all
commenters on the United Petition.
295
ABA Comments on United Petition at 3; AFSA Comments on Stage Petition at 1-2; ACA Comments on CBA
Petition at 2; AFSA Comments on United Petition at 2; AHIP Comments on United Petition at 8; Angula Comments
on United Petition at 1; Baird Comments on United Petition at 1; Besso Comments on United Petition at 1; CBA
Reply Comments on CBA Petition at 5; CCIA Comments on CBA Petition at 4; CCIA Comments on Stage Petition
at 4-5; CCIA Reply Comments on Stage Petition at 2; Cennate Comments on United Petition at 3-4; Chamber
Comments on United Petition at 2; COHEAO Comments on United Petition at 2; Comcast Comments on United
Petition at 3-4; CTIA Comments on United Petition at 4; DIRECTV Comments on United Petition at i; Dominion
Comments on United Petition at 3; Genesys Reply Comments on CBA Petition at 2; Jacola Comments on United
Petition at 1; Martinez Comments on United Petition at 1; Moore Comments on United Petition at 1; Noble
Comments on United Petition at 2; NRECA Comments on CBA Petition at 5-6; Richardson Comments on United
Petition at 1; Ridenour Comments on United Petition at 1; SLSA Comments on United Petition at 5; Stage Reply
Comments on Stage Petition at 3, 6-7; Twitter Comments on CBA Petition at 1; Twitter Comments on Stage
Petition at 7; United Comments on Rubio’s Petition at 2; United Reply Comments on Stage Petition at 2-4; Wells
Fargo Comments on Rubio’s Petition at 3-4; Wells Fargo Comments on Stage Petition at 9.
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Federal Communications Commission FCC 15-72
cannot control is neither consistent with the purpose of the TCPA nor beneficial to customers.
296
As
described below, the existence of database tools combined with other best practices, along with one
additional post-reassignment call, together make compliance feasible.
84. We emphasize that the TCPA does not prohibit calls to reassigned wireless numbers, or
any wrong number call for that matter. Rather, it prescribes the method by which callers must protect
consumers if they choose to make calls using an autodialer, a prerecorded voice, or an artificial voice. In
other words, nothing in the TCPA prevents callers from manually dialing. Callers could remove doubt by
making a single call to the consumer to confirm identity. Even if the consumer does not answer, his or
her voicemail greeting might identify him or her. Callers can also email consumers to confirm telephone
numbers. Consumers who receive the types of messages Petitioners describe, such as bank and health-
related alerts to which they have consented, can reasonably be expected to respond to such email requests
to inform callers about number reassignments. In other words, callers have options other than the use of
autodialers to discover reassignments. If callers choose to use autodialers, however, they risk TCPA
liability. Consumers switched numbers at the time Congress passed the TCPA and callers undoubtedly
called wrong numbers, yet we see nothing in the law or legislative history suggesting that Congress
intended lesser—or no—protection for the unfortunate consumer who inherited a new number or
happened to be one digit off the intended number.
(ii) Learning of Reassigned Numbers
85. While we decline to interpret “called party” to mean “intended party,” we agree with
commenters who argue that callers lack guaranteed methods to discover all reassignments immediately
after they occur.
297
The record indicates that tools help callers determine whether a number has been
reassigned,
298
but that they will not in every case identify numbers that have been reassigned.
299
Even
296
ABA Comments on United Petition at 4; AFSA Comments on United Petition at 2; Carrington Comments on
United Petition at 1; Comcast Comments on United Petition at 6; CTIA Comments on United Petition at 6-7; COPS
Comments on United Petition at 1-2; DIRECTV Comments on United Petition at ii; Mey Reply Comments on
United Petition at 9; NAIB Comments on United Petition at 6-7; Noble Comments on CBA Petition at 4-5; Noble
Comment on Stage Petition at 3; SLSA Comments on United Petition at 5; Twitter Comments on Stage Petition at 9.
297
See, e.g., Stage Petition at 4; Rubio’s Petition at 7; United Petition at 4, 10; AFSA Comments on Stage Petition at
1; Noble Comments on Stage Petition at 5; Roylance Comments on Stage Petition at 5; United Reply Comments on
Stage Petition at 3-4; Wells Fargo Comments on Stage Petition at 17-19; see also Ex Parte Letter from Richard L.
Fruchterman, Associate General Counsel to Neustar, to Marlene H. Dortch, Secretary, FCC in CG Docket No. 02-
278, at 1 (filed Feb. 5, 2015) (stating that Neustar is “not aware of any telecommunications industry databases that
track all disconnected or reassigned telephone numbers” and that it is “not aware of any authoritative
telecommunications database that links all consumer names with their telephone numbers”).
298
See Biggerstaff Comments on United Petition at 2-4; Lucas Comments on United Petition at 2; Mey Comments
on United Petition at 1; NCLC Comments on United Petition at 2; Roylance Comments on United Petition at 2;
Roylance Reply Comments on United Petition at 3, 5; Shields Comments on United Petition at 2; Shields Comments
on Reply Comments of United on United Petition (March 2014); Shields Reply Comments on United Petition at 2-3;
Sutton Comments on United Petition at 1; see also ABA Comments on United Petition at 3; AFSA Comments on
Stage Petition at 1-2; AFSA Comments on United Petition at 2; CCIA Comments on Stage Petition at 4-5; CCIA
Reply Comments on Stage Petition at 2; Cennate Comments on United Petition at 3-4; Chamber Comments on
United Petition at 2; COHEAO Comments on United Petition at 2; Comcast Comments on United Petition at 3-4;
Noble Comments on United Petition at 2; SLSA Comments on United Petition at 5; Twitter Comments on Stage
Petition at 7; United Reply Comments on Stage Petition at 2-4; Wells Fargo Comments on Stage Petition at 9; see
also Ex Parte Letter from Richard L. Fruchterman, Associate General Counsel to Neustar, to Marlene H. Dortch,
Secretary, FCC in CG Docket No. 02-278, at 2-3 (filed Feb. 5, 2015) (explaining Neustar’s Verification for TCPA
product, which assists customers in “understanding the strength of correlation between a name and a telephone
number,” and an additional recently added “capability to evaluate the likelihood of whether a telephone number has
experienced a disconnect event since the date when consent was initially obtained”).
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Federal Communications Commission FCC 15-72
where the caller is taking ongoing steps reasonably designed to discover reassignments and to cease calls,
we recognize that these steps may not solve the problem in its entirety. In balancing the caller’s interest
in having an opportunity to learn of reassignment against the privacy interests of consumers to whom the
number is reassigned, we find that, where a caller believes he has consent to make a call and does not
discover that a wireless number had been reassigned prior to making or initiating a call
300
to that number
for the first time after reassignment, liability should not attach for that first call, but the caller is liable for
any calls thereafter. The caller, and not the called party, bears the burden of demonstrating: (1) that he
had a reasonable to basis to believe he had consent to make the call, and (2) that he did not have actual or
constructive knowledge of reassignment prior to or at the time of this one-additional-call window we
recognize as an opportunity for callers to discover reassignment.
86. Callers have a number of options available that, over time, may permit them to learn of
reassigned numbers. For example, at least one database can help determine whether a number has been
reassigned, and consumer groups have expressed strong support for full participation from carriers to
make this type of option more effective.
301
Further, callers may ask consumers to notify them when they
switch from a number for which they have given prior express consent. Nothing in the TCPA or our rules
prevents parties from creating, through a contract or other private agreement, an obligation for the person
(...continued from previous page)
299
ABA Comments on United Petition at 3; AFSA Comments on Stage Petition at 1-2; AFSA Comments on United
Petition at 2; AHIP Comments on United Petition at 8; Angula Comments on United Petition at 1; Baird Comments
on United Petition at 1; Besso Comments on United Petition at 1; CCIA Comments on Stage Petition at 2-5; CCIA
Reply Comments on Stage Petition at 2; Cennate Comments on United Petition at 3-4; Chamber Comments on
United Petition at 2; COHEAO Comments on United Petition at 2; Comcast Comments on United Petition at 3-4;
CTIA Comments on United Petition at 4; DIRECTV Comments on United Petition at i; Dominion Comments on
United Petition at 3; Jacola Comments on United Petition at 1; Martinez Comments on United Petition at 1; Moore
Comments on United Petition at 1; Noble Comments on United Petition at 2; Richardson Comments on United
Petition at 1; Ridenour Comments on United Petition at 1; SLSA Comments on United Petition at 5; Stage Reply
Comments on Stage Petition at 3, 6-7; Twitter Comments on Stage Petition at 7, 12-13; United Reply Comments on
Stage Petition at 2-4; Wells Fargo Comments on Stage Petition at 9; see also Ex Parte Letter from Richard L.
Fruchterman, Associate General Counsel to Neustar, to Marlene H. Dortch, Secretary, FCC in CG Docket No. 02-
278, at 3 (filed Feb. 5, 2015) (stating that Neustar’s “TCPA Mitigation service is not a silver bullet for TCPA
compliance but is a tool that companies can use, in conjunction with other service, to reduce their TCPA exposure”).
300
See DISH Declaratory Ruling, 28 FCC Rcd at 6583, para. 26 (“a person or entity ‘initiates’ a telephone call when
it takes the steps necessary to physically place a telephone call”). We reject 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. See, e.g., Ex Parte Letter from Monica Desai, Counsel to Wells Fargo, to Marlene H. Dortch,
Secretary, FCC in CG Docket No. 02-278, at 2-6 (filed June 5, 2015); Ex Parte Letter from Monica Desai, Counsel
to ACA International, to Marlene H. Dortch, Secretary, FCC in CG Docket No. 02-278, at 6-7 (filed June 11, 2015);
Ex Parte Letter from Harold Kim, Executive Vice President of U.S. Chamber Institute for Legal Reform, to Marlene
H. Dortch, Secretary, FCC in CG Docket No. 02-278, at 3 (filed June 11, 2015); Ex Parte Letter from Mark W.
Brennan, Counsel to United Healthcare Services, Inc., to Marlene H. Dortch, Secretary, FCC in CG Docket No. 02-
278, at 3 (filed June 9, 2015); Ex Parte Letter from Robert Biggerstaff, to Tom Wheeler, Chairman, FCC in CG
Docket No. 02-278, at 3 (filed June 4, 2015). Our rejection of this argument is not “inconsistent with the statute.”
Commissioner O’Rielly Partial Dissent at 8. We interpret the statutory term “prior express consent” to permit
callers to make or attempt one call before liability may attach.
301
See Neustar Resources and Tools, available at http://www.neustar.biz/resources/product-literature/lead-buyers-
tcpa#.U4288CjaIWF (claiming to include 80 percent of wireless and hard-to-find phone numbers, and to update
information every 15 minutes in order to assist callers concerned with TCPA compliance as they seek to
“confidently verify that the phone number still belongs to the individual who gave consent”) (last visited May 18,
2015); see also Ex Parte Letter from Richard L. Fruchterman, Associate General Counsel to Neustar, to Marlene H.
Dortch, Secretary, FCC in CG Docket No. 02-278, at 2-3 (filed Feb. 5, 2015).
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Federal Communications Commission FCC 15-72
giving consent to notify the caller when the number has been relinquished.
302
The record indicates that
callers seeking to discover reassignments may: (1) include an interactive opt-out mechanism in all
artificial- or prerecorded-voice calls so that recipients may easily report a reassigned or wrong number;
(2) implement procedures for recording wrong number reports received by customer service
representatives placing outbound calls; (3) implement processes for allowing customer service agents to
record new phone numbers when receiving calls from customers; (4) periodically send an email or mail
request to the consumer to update his or her contact information; (5) utilize an autodialer’s and/or a live
caller’s ability to recognize “triple-tones” that identify and record disconnected numbers;
303
(6) establish
policies for determining whether a number has been reassigned if there has been no response to a “two-
way” call after a period of attempting to contact a consumer; and (7) enable customers to update contact
information by responding to any text message they receive, which may increase a customer’s likelihood
of reporting phone number changes and reduce the likelihood of a caller dialing a reassigned number.
304
87. We find that these options, when used as a normal practice of business, make it possible
in most circumstances to comply with the TCPA, given our interpretation of “called party,” and to
determine whether the current subscriber or customary user of a wireless number has given prior express
consent. We also note that this list of best practices and available tools for discovering reassigned
wireless numbers is not exhaustive, nor are we suggesting that a reasonable caller would have
implemented any particular number of items on this list; we recognize that callers are unique and that a
particular tool may not be particularly effective or practical in each and every circumstance.
305
302
The failure of the original consenting party to satisfy a contractual obligation to notify a caller about such a
change does not preserve the previously existing consent to call that number, but instead creates a situation in which
the caller may wish to seek legal remedies for violation of the agreement.
303
Commission rules require that numbers be recycled within 90 days for a residential number, and within 365 days
for a business number. 47 C.F.R. § 52.15(f)(ii). While the Commission’s rules do not set an inner time limit, most
providers do not recycle numbers for at least 30 days. See Numbering Resource Optimization, CC Docket No. 99-
200, Report and Order and Further Notice of Proposed Rule Making, 15 FCC Rcd 7574, 7590, para. 29 (2000). For
calls within this time period, autodialers are equipped to record “triple-tone” signals that identify that the number
has been disconnected. A manual dialer will, likewise, hear and identify a triple-tone. See Joint Consumer Group
Nov. 17 Comments at 10. By recognizing such a disconnected number, callers may obtain constructive knowledge
that a number for which they have received consent is no longer in service, and thus, likely to be reassigned.
304
Carrington Comments on United Petition at 1; DIRECTV Comments on United Petition at i, 7-8; NCLC
Comments on United Petition at 2; United Reply Comments on Stage Petition at 4-5; United Reply Comments on
United Petition at 12-13; Wells Fargo Comments on Stage Petition at 18-19; Ex Parte Letter from Mark W.
Brennan, Counsel to United Healthcare Services, Inc., to Marlene H. Dortch, Secretary, FCC in CG Docket No. 02-
278, at 4-6 (filed July 28, 2014); Ex Parte Letter from Mark W. Brennan, Counsel to United Healthcare Services,
Inc., to Marlene H. Dortch, Secretary, FCC in CG Docket No. 02-278, at 2-3 (filed Sept. 30, 2014); Ex Parte Letter
from Monica S. Desai, Counsel to Wells Fargo, to Marlene H. Dortch, Secretary, FCC in CG Docket No. 02-278, at
8-9 (filed July 31, 2014); Ex Parte Letter from Margot Saunders, National Consumer Law Center, to Marlene H.
Dortch, Secretary, FCC in CG Docket No. 02-278, 11 (filed June 6, 2014); see 2012 TCPA Order, 18 FCC Rcd at
1848-50, paras. 44-49; Intergovernmental Advisory Committee to the Federal Communications Commission,
Advisory Recommendation No: 2015-6 at para. 8 (May 15, 2015); see also Shields Comments on Stage Petition at 5
(stating that wireless numbers are not reassigned immediately, but stay in a pool of unassigned numbers 30 to 90
days); Shields Reply Comments to CCIA Comments on Stage Petition at 1 (stating that, during the time wireless
numbers are reassigned, “robocalls will get a disconnect notice and a text message will get an undeliverable
notice”); Stage Reply Comments on Stage Petition at 7 (“numbers do not stay in an unassigned pool for any
particular or mandatory length of time”).
305
See United Reply Comments on CBA Petition at 6; United Comments on Rubio’s Petition at 2; Wells Fargo
Comments on Stage Petition at 18; Ex Parte Letter from Mark W. Brennan, Counsel to United Healthcare Services,
Inc., to Marlene H. Dortch, Secretary, FCC in CG Docket No. 02-278, at 3 (filed May 7, 2014); Ex Parte Letter
from Mark W. Brennan, Counsel to United Healthcare Services, Inc., to Marlene H. Dortch, Secretary, FCC in CG
(continued....)
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Federal Communications Commission FCC 15-72
88. We acknowledge that callers using the tools discussed above may nevertheless not learn
of reassignment before placing a call to a new subscriber. The record provides little guidance regarding
the length of time following the first call to a reassigned number that would reasonably enable a caller to
discover the reassignment, and the record similarly offers little on how to balance the interests of called
parties who might receive unwanted calls during this time. Most commenters support an all-or-nothing
approach where the caller is only liable after receiving actual knowledge of reassignment, or the caller is
liable for every call made after reassignment.
306
We find both positions unworkable. The record shows
that many calls can be made before there is actual knowledge of reassignment
307
and that, once there is
actual knowledge, callers may not honor do-not-call requests.
308
On the other hand, making every call
after reassignment subject to liability fails to acknowledge that no one perfect solution exists to inform
callers of reassignment.
89. We therefore agree with United that we should find a middle ground where the caller
would have an opportunity to take reasonable steps to discover reassignments and cease such calling
before liability attaches.
309
We disagree, however, that callers should be permitted up to a year to
discover reassignments before facing liability.
310
We conclude that giving callers an opportunity to avoid
liability for the first call to a wireless number following reassignment strikes the appropriate balance.
90. This additional opportunity to discover a reassignment acknowledges the possibility that
in some cases callers may not learn of reassignment via available tools or from the new or previous
subscriber. We find that the one-call window provides a reasonable opportunity for the caller to learn of
the reassignment, which is in effect a revocation of consent to be called at that number, in a number of
ways.
311
One call represents an appropriate balance between a caller’s opportunity to learn of the
reassignment and the privacy interests of the new subscriber to avoid a potentially large number of calls
to which he or she never consented.
312
(...continued from previous page)
Docket No. 02-278, at 5 (filed July 28, 2014); Ex Parte Letter from Monica S. Desai, Counsel to Wells Fargo, to
Marlene H. Dortch, Secretary, FCC in CG Docket No. 02-278, at 9 (filed July 31, 2014).
306
See, e.g., Ex Parte Letter from Monica S. Desai, Counsel to Abercrombie & Fitch Co., and Hollister Co., to
Marlene H. Dortch, Secretary, FCC in CG Docket No. 02-278, at 2-3 (filed May 13, 2015); Letter from Sens.
Edward J. Markey, Charles E. Schumer, Ron Wyden, Claire McCaskill, Elizabeth Warren, Richard Blumenthal,
Amy Klobuchar, Tammy Baldwin, Jeff Merkley, and Al Franken, U.S. Senate, to Tom Wheeler, Chairman, FCC
(May 14, 2015).
307
See, e.g., Ex Parte Letter from Margot Saunders, Counsel to National Consumer Law Center, to Marlene Dortch,
Secretary, FCC in CG Docket No. 02-278 at 8 (filed Dec. 18, 2014) (citing a company that called consumers 10 to
20 times per day).
308
See supra para. 79 and n. 283.
309
See Ex Parte Letter from Mark W. Brennan, Counsel to United Healthcare Services, Inc., to Marlene H. Dortch,
Secretary, FCC in CG Docket No. 02-278 (filed Sept. 30, 2014).
310
United Reply Comments on CBA Petition at 6-7.
311
See n. 293, supra.
312
In striking this balance, we do not presume that a single call to a reassigned number will always be sufficient for
callers to gain actual knowledge of the reassignment, nor do we somehow “expect callers to divine from [the called
consumer’s] mere silence the current status of a telephone number.” Commissioner O’Rielly Partial Dissent at 8.
Instead, we are simply determining which party—the caller or the called party—bears the risk in situations where
robocalls are placed to reassigned wireless numbers and the called party has not given his or her prior express
consent. In addressing this issue, the Commission could have interpreted the TCPA to impose a traditional strict
liability standard on the caller: i.e., a “zero call” approach under which no allowance would have been given for the
robocaller to learn of the reassignment. For the reasons set forth in this item, however, we believe we can
reasonably interpret the TCPA not to require a result that severe. Specifically, the TCPA anticipates the caller’s
ability to rely on “prior express consent,” 47 U.S.C. 227(b)(1), and we interpret that to mean reasonable reliance,
(continued....)
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Federal Communications Commission FCC 15-72
91. Our approach acknowledges that the caller must have a reasonable opportunity to
discover the effective revocation, and is consistent with the common law principle that revocation of
consent must be communicated to the other party in a reasonable manner.
313
When the new subscriber to
a reassigned number has not consented to the calls to that number, the caller may reasonably be
considered to have constructive knowledge—if not actual knowledge—of the revocation of consent
provided by the original subscriber to the number when the caller makes the first call without reaching
that original subscriber.
92. Our approach not only reflects a reasonable interpretation of the key statutory term
“called party,” but also balances our duty to make compliance feasible with the TCPA’s goals of
protecting consumers from unwanted and potentially costly calls.
314
In this case, the opportunity for
callers engaging in best practices to avoid liability for the first call following reassignment acknowledges
callers’ need for a reasonable opportunity to discover a reassignment using available tools, while ensuring
that those callers who have not taken the steps available to avoid making calls to reassigned numbers do
not have, effectively, the ability to make unlimited calls in a manner that contravenes the consumer
protection goals of the TCPA.
93. Considering the foregoing, we deny CBA’s Petition, Rubio’s Petition, Stage’s Petition,
and United’s Petition requesting that we exempt from liability autodialed, artificial-voice, and
prerecorded-voice calls made to wireless numbers reassigned from a consumer who previously gave
consent.
315
Calls to wireless numbers, where the caller does not have the consent of the called party—
(...continued from previous page)
and the balancing we adopt herein reflects our construal of reasonable reliance. We find no basis in the statute or
the record before us to conclude that callers can reasonably rely on prior express consent beyond one call to
reassigned numbers. Subject to this one-call threshold, we find that when a caller chooses to make robocalls to a
wireless number that may have been reassigned, it is the caller—and not the wireless recipient of the call—who
bears the risk that the call was made without the prior express consent required under the statute. For these and
other reasons, this interpretation of the statute also is not undercut by prior Commission precedent in other contexts
implementing the TCPA so as not to “demand[] the impossible.” See Commissioner Pai Dissent at 7; 2004 TCPA
Order, 19 FCC Rcd at 19218-19, para. 9 (interpreting and implementing the TCPA so that “the statute would [not]
‘demand the impossible.’”) (citations omitted). In addition to the forgoing, the scenario at issue in the 2004 TCPA
Order dealt with calls to numbers ported from wireline to wireless service, which had the effect of altering the
governing legal regime. See 2004 TCPA Order, 19 FCC Rcd at 19216, para. 3; 47 U.S.C. § 227(b)(1)(A), (B).
Here, by contrast, where numbers are reassigned from one wireless subscriber to another, the governing legal regime
remains the same, better enabling callers to gauge and account for the risk in this scenario. Further, our
interpretation of the statute based on the record here does not prejudge what rules the Commission might adopt to
implement the TCPA based on some future record. See 2004 TCPA Order, 19 FCC Rcd at 19216-20, paras. 3-13
(discussing the Commission’s 2003 interpretation and implementation of the TCPA, which did not include any ‘safe
harbor’ for numbers ported from wireline to wireless service; its subsequent FNPRM seeking comment on the
possible need for such a safe harbor; and the record evidence persuading the Commission of the merits of the safe
harbor rule adopted there).
313
See Williston on Contracts § 5:9 (4th ed.) (“ordinarily it is necessary for the offeror to communicate the
revocation of an offer to the offeree”).
314
See 1992 TCPA Order, 7 FCC Rcd at 8754, para. 3.
315
In reaching this conclusion, we necessarily reject two of the options United presents in its Petition: (1) that the
“Commission [] find that when a caller has obtained valid ‘prior express consent of the called party’ to call that
party’s telephone number, such ‘prior express consent’ encompasses non-telemarketing, informational calls to the
telephone number provided until the caller learns that the telephone number has been reassigned” and (2) that the
Commission confirm that the term “called party” “encompass[] both the consenting party and the new subscriber to
a reassigned number, until the caller learns that the two parties are not the same.” United Petition at 10. We also
reject United’s request that the Commission “confirm that a good faith exception from TCPA liability exists for
informational, non-telemarketing calls to telephone numbers that have been reassigned from a prior express
consenting party (until the caller learns of the reassignment).” United Petition at 10; see also Ex Parte Letter from
Monica S. Desai, Counsel to Wells Fargo, to Marlene H. Dortch, Secretary, FCC in CG Docket No. 02-278, at 6
(continued....)
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Federal Communications Commission FCC 15-72
meaning the current subscriber or customary user, as defined above—violate the TCPA, absent some
exception.
316
94. Although we have already addressed certain issues raised by Rubio’s, it includes two
additional arguments in its Petition. Rubio’s states that it obtains prior express consent from its
employees to use a remote messaging system to send “Quality Assistance” alerts
317
to its employees’ own
wireless phone numbers.
318
These alerts inform employees when a food safety concern affecting a
particular restaurant has been reported in a confidential electronic system so that the employees can log in
to the system to obtain the report.
319
When an employee’s wireless phone number is reassigned to a new
subscriber and that employee does not alert Rubio’s that he or she no longer subscribes to that wireless
number, the remote messaging system continues to send alerts to the reassigned number.
320
Rubio’s
asserts that when one of its employees lost his wireless phone, the number was reassigned, and “hundreds
of Remote Messaging alerts were received by the wireless subscriber with the reassigned number” by the
time Rubio’s “was aware of the problem.”
321
Rubio’s asserts that the new subscriber to the number
“advised Rubio’s that he had solved the problem by blocking calls from the originating number used by
the Remote Messaging system—and, therefore, no corrective action was needed.”
322
Rubio’s “reasonably
relied upon this assurance that no corrective action was needed,”
323
and appears to have continued sending
alerts until the new subscriber to the number filed suit.
324
95. Rubio’s first argues that the Commission should add “an affirmative, bad-faith defense
that vitiates liability upon a showing that the called party purposefully and unreasonably waited to notify
the calling[ ]party of the reassignment in order [to] accrue statutory penalties.”
325
We decline to do so.
Neither the TCPA nor our related rules place any affirmative obligation on the user of a wireless number
to inform all potential callers when that number is relinquished or reassigned; uninvolved new users of
reassigned numbers are not obligated under the TCPA or our rules to answer every call, nor are they
required to contact each caller to opt out in order to stop further calls.
326
Furthermore, once the new
(...continued from previous page)
(filed July 31, 2014). We do not create a good faith exception, but rather recognize an opportunity for callers to
avoid liability for the first call following reassignment in order to give effect to our reasonable interpretation of
“prior express consent” in section 227(b)(1)(A), balancing the commercial interest of callers in having a reasonable
opportunity to learn of reassignments against the privacy interest of the consumer to whom the number is reassigned
in not receiving unwanted calls for which they provided no prior express consent. See 47 U.S.C. § 227(b)(1)(A).
We also necessarily reject Stage’s request for “an exception to liability under the TCPA for autodialed marketing
calls, including text messages, made to reassigned wireless numbers where the caller had obtained prior express
consent to make such marketing calls, but the wireless number has been reassigned without notice to the caller . . . .”
Stage Petition at 4.
316
See 47 U.S.C. § 227(b)(1)(A) (listing exceptions as “a call made for emergency purposes or made with the prior
express consent of the called party”).
317
In its petition, Rubio’s does not indicate whether the “alerts” are voice calls or text message calls.
318
See Rubio’s Petition at 1-2.
319
Id. at 2.
320
Id. at 2-3.
321
Id. at 3.
322
Id.
323
Id. at 7.
324
Rubio’s states that the subscriber to the new number had “received approximately 876 alerts” when he filed suit
against Rubio’s. Id.at 3.
325
Id.at 7.
326
See para. 81, supra.
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Federal Communications Commission FCC 15-72
subscriber to the wireless number informed Rubio’s that the number had been reassigned, Rubio’s had
actual knowledge that the prior express consent of its employee was no longer valid. At that point, it was
incumbent upon Rubio’s to take action to update its remote messaging system and remove the number.
The new subscriber’s statement that he had “solved the problem”
327
was immaterial if Rubio’s knew that
the prior express consent of its employee was no longer valid and it took no action to update its system to
cease calling that wireless number.
328
We, therefore, deny Rubio’s Petition based on this argument.
96. Rubio’s second argument is that “the TCPA does not apply to intra-company messaging
systems which are not aimed at consumers and [are] never intended to reach the public.”
329
As discussed
above, the TCPA is not concerned with the intended audience of the call, but rather with the called party,
i.e. the subscriber to or customary user of a wireless number at the time the call is made. If such wireless
calls are made without prior express consent, the statute broadly applies to “any call . . . to any telephone
number.”
330
In any event, although Rubio’s states that its messaging system sends the remote alerts to its
employees’ wireless phone numbers, it also admits that calls to reassigned numbers do reach members of
the public. As such, while Rubio’s may not intend to reach members of the public, it nonetheless does,
and consequently impacts the privacy of those called parties. We, therefore, deny Rubio’s Petition based
on this argument.
97. Finally, we cannot grant United’s request for clarification that pertains specifically to
healthcare-related calls, as distinguished from all other calls.
331
As we stated in the ACA Declaratory
Ruling, the restriction set forth in section 227(b)(1)(A)(iii) applies “regardless of the content of the
call.”
332
4. Prior Express Written Consent After 2012 Rule Changes
a. DMA and Coalition
98. Three petitioners seek relief from or clarification of the prior-express-written-consent rule
that became effective October 16, 2013. That rule requires prior express written consent for
telemarketing calls; to get such consent, telemarketers must tell consumers the telemarketing will be done
327
Rubio’s Petition at 7.
328
See para. 85, supra.
329
Rubio’s Petition at 4, 7-8.
330
47 U.S.C. § 227(b)(1)(A).
331
United Petition at 3.
Having declined in this Declaratory Ruling to grant United’s request for a clarification that calls to reassigned
numbers are exempt from TCPA liability, we also decline its request, made without elaboration, that the
Commission “exercise its ancillary authority under Title I of the Communications Act [of 1934]” to grant its request,
because that request is “reasonably ancillary to the effective performance of the Commission’s statutorily mandated
responsibilities under the TCPA.” Id. at 11 (internal quotation marks omitted); see also 47 U.S.C. § 154(i) (“The
Commission may perform any and all acts, make such rules and regulations, and issue such orders, not inconsistent
with this chapter, as may be necessary in the execution of its functions.”). The Commission’s ancillary jurisdiction
is limited to circumstances where: (1) the Commission's general jurisdictional grant under Title I covers the subject
of the regulations and (2) the regulations are reasonably ancillary to the Commission’s effective performance of its
statutorily mandated responsibilities. See American Library Ass’n v. FCC, 406 F.3d 689, 700 (D.C. Cir. 2005). As
we have discussed here in considerable detail, the statute in this case prohibits autodialed or prerecorded non-
emergency calls to wireless numbers without the prior express consent of the called party. As such, granting
United’s request that we recognize an exception for such calls from the statutory requirement would not be
reasonably ancillary to the Commission’s effective performance of its statutorily mandated responsibility to
implement that requirement, but would instead undermine the statute.
332
ACA Declaratory Ruling, 23 FCC Rcd at 565, para. 11; see 47 U.S.C. § 227 (b)(1)(A)(iii).
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Federal Communications Commission FCC 15-72
with autodialer equipment and that consent is not a condition of purchase.
333
Coalition
334
seeks
clarification that the revised TCPA rule that became effective October 16, 2013,
335
does not “nullify those
written express consents already provided by consumers before that date”
336
and therefore mobile
marketers need not take additional steps to obtain the revised forms of written consent from existing
customers who have already provided express written consent (under the previous rule) that does not meet
the standards of the revised rule.
337
In its request for forbearance, DMA states that “[the new rule]
require[s] disclosure, informing consumers, that sales are not conditioned on consent and that the seller is
using an [autodialer], in connection with marketers[’] existing written consent agreements.”
338
In its
Petition, DMA argues that, while the Commission “stated that its primary goal in revising [the TCPA
rule] was to make [its rule] consistent with those of the Federal Trade Commission (FTC),”
339
this new
rule departs from the FTC’s formulation.
340
DMA maintains that the Commission’s rule “requires that a
marketer affirmatively disclose to its customer that it is not acting to condition sale on the written
agreement.”
341
In support of its Petition, DMA also notes that the cost of obtaining new express written
consent with the required disclosures would be exorbitant and would cause confusion among its
customers.
342
99. Several commenters support both Coalition’s
343
and DMA’s
344
arguments that the 2012
333
47 C.F.R. § 64.1200(a)(2), (f)(8)(i).
334
The Coalition “consists of communications infrastructure, technology, and professional services companies that
work with brands, retailers, banks, online services, and companies of all types to engage with and interact with their
customers using mobile messaging and other channels for communication with consumers via mobile phones.”
Coalition Petition at 2.
335
2012 TCPA Order, 27 FCC Rcd 1830.
336
Coalition Petition at 1.
337
Coalition Petition at 1-2.
338
DMA Petition at 1. Although this filing is captioned as a “Petition for Forbearance,” it does not cite or refer to
the Commission’s “Section 10” regulatory forbearance authority, see 47 U.S.C. § 160, which specifically concerns
forbearance from applying provisions of the Communications Act or the Commission’s rules to telecommunications
carriers or services. Further, the petition fails to provide the required support and justification to support the
requisite showing necessary for forbearance from the Commission’s rules. Because the DMA Petition appears to
seek a more general form of relief to resolve the alleged uncertainty which it describes, we do not treat this request
as a “section 10” forbearance request but rather, on our own motion, elect to treat this request as a Petition for
Declaratory Relief and resolve it herein. See 47 C.F.R § 1.2. DMA Petition at 1.
DMA also filed an Emergency Petition for Special Temporary Relief requesting the Commission to stay amended
47 C.F.R. Sections 64.1200(f)(8)(i)(A) and (B) until it clarifies the application of its amended rules. See Direct
Marketing Association, Emergency Petition for Special Temporary Relief, CG Docket No. 02-278 (filed Oct. 17,
2013) (DMA Emergency Petition). There were no comments received on this petition. As discussed infra, because
we provide the Petitioner with some alternate relief, we deny DMA the relief it seeks in its Emergency Petition. See
infra at paras. 100-102.
339
DMA Petition at 2.
340
Id. at 5.
341
Id. at 4 (emphasis in original).
342
Id. at 5.
343
AFSA Comments on Coalition Petition at 1; BAA Comments on Coalition Petition at 1; Brachtenbach
Comments on Coalition Petition at 1; Coalition Comments on Coalition Petition at 1-2; Connor Comments on
Coalition Petition at 1; CTIA Comments on Coalition Petition at 1-2; Phunware Comments on Coalition Petition at
1; MMA Comments on Coalition Petition at 1; mBlox Comments on Coalition Petition at 1,4; MobileStorm
Comments on Coalition Petition at 1; MAE Comments on Coalition Petition at 1; MAW Comments on Coalition
Petition at 1-2; NAB Comments on Coalition Petition at 1; NRF Comments on Coalition Petition at 1; Raney
(continued....)
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Federal Communications Commission FCC 15-72
rule was not designed to require mobile marketers to get new consent from customers who previously
gave consent for these calls. The commenters opposing Coalition’s Petition, however, state that no
further relief is warranted, as Petitioners had an ample period of time to transition—in fact, an extended
implementation period of over 16 months that the Commission allowed for compliance with its new prior-
express-written-consent requirements.
345
100. We grant the Coalition and DMA Petitions to the extent described herein and clarify the
rule. Specifically, we clarify that our prior-express-written-consent requirements apply for each call
made to a wireless number, rather than to a series of calls to wireless numbers made as part of, for
example, a marketing or advertising campaign as a whole. Based on the record, we recognize that some
uncertainty in this regard may have existed prior to the rule’s effective date and therefore take this
opportunity to provide Petitioners with relief, and also clarify our prior-express-written-consent
requirements. It follows that the rule applies per call and that telemarketers should not rely on a
consumer’s written consent obtained before the current rule took effect if that consent does not satisfy the
current rule. Indeed, our rules implementing the TCPA expressly provide that no person or entity may
“initiate any telephone call” to any of the telephone numbers described in section 64.1200(a)(1)(i)
through (iii), which includes “any telephone number assigned to a . . . cellular telephone service . . . or
any service for which the called party is charged for the call.”
346
101. We nevertheless acknowledge evidence of confusion on the part of Petitioners, and
believe it is reasonable to recognize a limited period within which they could be expected to obtain the
prior express written consent required by our recently effective rule. Specifically, the Commission stated
in the 2012 TCPA Order that “[o]nce our written consent rules become effective . . . an entity will no
longer be able to rely on non-written forms of express consent to make autodialed or prerecorded voice
telemarketing calls, and thus could be liable for making such calls absent prior written consent.”
347
We
agree with Coalition that the italicized language could have reasonably been interpreted to mean that
written consent obtained prior to the current rule’s effective date would remain valid even if it does not
satisfy the current rule.
348
102. The National Association of Broadcasters (NAB) states that the relief under waiver
should also grant limited prospective relief and continue for some reasonable period of time (e.g., 90
days) going forward to enable parties to obtain new consents under the new rule without running the risk
of being subjected to pointless and expensive class action litigation.”
349
We agree. Thus, for good cause
shown and the reasons discussed above, we grant Petitioners (including their members as of the release
date of this Declaratory Ruling) a retroactive waiver from October 16, 2013, to release of this Declaratory
Ruling, and then a waiver from the release of the Declaratory Ruling through a period of 89 days
(...continued from previous page)
Comments on Coalition Petition at 1; RILA Comments on Coalition Petition at 1-2; RIBA Comments on Coalition
Petition at 1; Weeden Comments on Coalition Petition at 1; see also VAB Reply Comments on Coalition Petition at
1-2; Neustar Reply Comments on Coalition Petition at 2. See Appendix C for a list of all commenters on the
Coalition Petition.
344
AFSA Comments on DMA Petition at 1; BAA Comments on DMA Petition at 1; Brachtenbach Comments on
DMA Petition at 1; MAE Comments on DMA Petition at 1; MAW Comments on DMA Petition at 1-2; NAB
Comments on DMA Petition at 1; Phunware Comments on DMA Petition at 1; RIBA Comments on DMA Petition
at 1; Weeden Comments on DMA Petition at 1; see also VAB Reply Comments on DMA Petition at 1-2. See
Appendix E for a list of all commenters on the DMA Petition.
345
See Biggerstaff Comments on Coalition Petition at 1-2; Roylance Comments on Coalition Petition at 2.
346
47 C.F.R. § 64.1200(a)(2) (emphasis added); see also 47 C.F.R. § 64.1200(a)(1)(iii).
347
2012 TCPA Order, 27 FCC Rcd at 1857, para. 68 (emphasis added).
348
Coalition Petition at 6-7.
349
NAB Comments on Coalition Petition at 7-8; NAB Comments on DMA Petition at 7-8.
8014
Federal Communications Commission FCC 15-72
following release of this Declaratory Ruling to allow Petitioners to rely on the “old” prior express written
consents already provided by their consumers before October 16, 2013 (the effective date of new
requirement). The “old” written express consents provided by consumers before October 16, 2013,
remain effective for a period of 89 days following release of this Declaratory Ruling. Petitioners must
come into full compliance within 90 days after release of this Declaratory Ruling for each subject call,
which we believe is a reasonable amount of time for Petitioners to obtain the prior express written consent
required by the current rule.
b. RILA
103. We find that a one-time text message sent immediately after a consumer’s request for the
text does not violate the TCPA and our rules. RILA asks the Commission to clarify the prior-express-
written-consent rule that became effective October 16, 2013, requiring that callers get prior express
written consent for telemarketing after disclosing that the marketing will be done with autodialers and that
consent is not conditioned on any purchase. RILA’s members are retail companies that utilize “on-
demand text services” to facilitate consumer purchases.
350
RILA describes “on demand text offers” that
are provided through an on-demand text service as immediate, one-time replies sent to consumers via text
message in response to a consumer-initiated text request.
351
For example, a consumer might see an
advertisement or another form of call-to-action display and respond by texting “discount” to the retailer,
who replies by texting a coupon to the consumer.
352
RILA notes that the reply text sent to the consumer
does not include marketing material unrelated to the information specifically requested by the consumer
or additional offers.
353
RILA argues that sending a one-time, on-demand text offer in response to a
consumer’s specific request does not constitute “initiating a call” for TCPA purposes,
354
and that a one-
time, on-demand text sent in response to a consumer’s request is not telemarketing for TCPA purposes.
355
104. We agree with commenters supporting RILA’s Petition who believe that consumers
welcome such text messages,
356
and grant RILA’s request, albeit on somewhat different grounds than
those proposed in the Petition. Specifically, we find that the on-demand text sent by retailers under the
facts described by RILA is not telemarketing, but instead fulfillment of the consumer’s request to receive
the text. As RILA describes it, the consumer requests the communication by sending an initial text
request in response to a call-to-action marketing display.
357
Immediately after receipt of the initial
consumer request, the business sends an autodialed reply in the form of a one-time text message.
358
When
a consumer makes his or her initial request, the consumer requests and expects to receive the on-demand
text message promptly in response, and expects the message to contain only the coupon requested.
359
350
RILA Petition at 2-3.
351
Id. at 3.
352
Id. at 3.
353
Id.
354
Id. at 3.
355
Id. at 4-6.
356
AFSA Comments on RILA Petition at 1-2; Brandtone Comments RILA Petition at 1-2; CTIA Comments on
RILA Petition at 2; Moore Comments on RILA Petition at 1; NAB Comments on RILA Petition at 3; NACDS
Comments on RILA Petition at 1-2; NFIB Comments on RILA Petition at 2; RILA Comments on RILA Petition at
1; Vibes Comments on RILA Petition at 1; see also ABA Reply Comments on RILA Petition at 2-3. See Appendix
L for a list of all commenters on the RILA Petition.
357
See RILA Petition at 3.
358
Id.
359
See, e.g., AFSA Comments on RILA Petition at 1; Brandtone Comments on RILA Petition t 1-2; CTIA
Comments on RILA Petition at 2.
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Federal Communications Commission FCC 15-72
Upon viewing the call-to-action, a consumer may choose to act on it by sending a text message to the
business. The reply text merely contains the discount coupon in fulfillment of the consumer’s request and
thus does not constitute a telemarketing communication. RILA members therefore need not make the two
required disclosures to consumers to obtain consent, and the consumer’s initiating text clearly constitutes
consent to an informational reply in fulfillment of the consumer request.
105. Our conclusion is consistent with TCPA legislative history that indicates the law is not
intended to disrupt communications that are “expected or desired . . . between businesses and their
customers,” including messages that “advise a customer (at the telephone number provided by the
customer) that an ordered product had arrived, a service was scheduled or performed, or a bill had not
been paid.”
360
We find our reasoning is consistent with and analogous to our SoundBite Declaratory
Ruling. In the SoundBite Declaratory Ruling, the Commission clarified that “allow[ing] organizations
that send text messages to consumers from whom they have obtained prior express consent to continue
the practice of sending a final, one-time text to confirm receipt of a consumer’s opt out request” does not
violate the TCPA or the Commission’s rules so long as the confirmation text has the specific
characteristics described in the SoundBite Petition.
361
In that decision, the Commission required, among
other things, that the confirmation text be sent within five minutes of receipt of an opt-out request in order
to be presumed to fall within the consumer’s prior express consent and noted that if it took longer to send
the confirmation text, the sender would have to make a showing that such delay was reasonable.
362
106. Similarly, we find that a one-time text sent in response to a consumer’s request for
information does not violate the TCPA or the Commission’s rules so long as it: (1) is requested by the
consumer; (2) is a one-time only message sent immediately in response to a specific consumer request;
and (3) contains only the information requested by the consumer with no other marketing or advertising
information.
363
We emphasize that this ruling applies only when the on-demand text message has been
expressly requested by the consumer in the first instance. The TCPA was enacted to protect consumers
from unwanted calls; in this instance, however, because the consumer requests the information in the first
instance, the potential for consumer harm, which the prior-express-written-consent requirement is
designed to minimize, is substantially mitigated.
5. Text Messages as Calls
107. Glide raises the issue of whether SMS text messages are subject to the same consumer
protections under the TCPA as voice calls. We reiterate that they are. Glide asserts that the
Commission’s “affirmation that text messages are the same as voice calls may make sense for many
purposes under the TCPA, but perhaps does not hold in all cases. Text messages are more akin to instant
messages or emails than voice calls.”
364
Based on this assertion, Glide argues that “some limitations and
concerns under the TCPA that are appropriate for voice calls may need to be approached differently for
360
H.R. REP. NO. 102-317, 1st Sess., 102nd Cong. (1991) at 17.
361
SoundBite Declaratory Ruling, 27 FCC Rcd at 15391, para. 1.
362
Id. at 15397, para. 11.
363
We note that some businesses include, in their call-to-action displays for on-demand texting programs, the small
amount of wording necessary to make the disclosures required by the Commission’s rules concerning prior express
written consent for autodialed or prerecorded telemarketing calls. See, e.g., http://www1.macys.com/shop/coupons-
deals (visited Feb. 10, 2015) (disclosures under “get texts details”: “By texting COUPON from my mobile number, I
agree to receive marketing text messages generated by an automated dialer from Macy’s to this number. I
understand that consent is not required to make a purchase.”). Our ruling today allows businesses to voluntarily
provide these simple disclosures to consumers in a call-to-action before sending a single on-demand text in response
to a consumer’s request. If the business sends more than a single text as a response to the consumer, however, our
rules require prior express written consent with the specified disclosures.
364
Glide Petition at 6 n.11.
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Federal Communications Commission FCC 15-72
text messages.”
365
Glide, therefore, “urges the Commission to examine and clarify these distinctions.”
366
As the commenter opposing Glide’s argument indicates, the Commission in 2003 determined that the
TCPA applies to SMS texts.
367
Thus, we find no uncertainty on this issue, and view Glide’s request as
seeking reversal of the Commission’s prior ruling regarding text messages as calls rather than seeking
clarification, and therefore inappropriate for declaratory ruling.
108. Second, we clarify that the equipment used to send Internet-to-phone text messages as
described by Revolution Messaging is an autodialer under the TCPA.
368
Revolution Messaging asks the
Commission to clarify that Internet-to-phone text messaging technology is a type of autodialer under the
TCPA, and therefore consumer consent is required for Internet-to-phone texts.
369
We find that Internet-to-
phone text messages, including those sent using an interconnected text provider, require consumer
consent.
370
109. Revolution Messaging contends that: (1) Internet-to-phone text messaging technology
involves the collection and storage of cellular telephone numbers that are then associated with domain
names assigned by each wireless carrier for their mobile service messages;
371
(2) users of such technology
can create millions of addresses and send an unlimited number of unsolicited text messages, resulting in
charges to the recipient;
372
and (3) Internet-to-phone messaging has become an increasingly popular
means to contact wireless consumers that can be sent at minimal cost to the sender.
373
110. In the 2003 TCPA Order, the Commission concluded that the consent must be obtained
for SMS calls (or “text messages”)
374
to wireless numbers.
375
Revolution Messaging contends that
365
Id.
366
Id.
367
2003 TCPA Order, 18 FCC Rcd at 14115, para. 165; see also 47 U.S.C § 227(b)(1)(A)(iii); 47 C.F.R. §
64.1200(a)(1)(iii); Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (9th Cir. 2009) (noting that text messaging is
a form of communication used primarily between telephones and is therefore consistent with the definition of a
“call”).
368
See paras. 109-122, infra. Although Revolution Messaging and commenters refer to “Internet-to-phone text
messaging technology,” the TCPA addresses the capacity of the “equipment” used to make a call. 47 U.S.C. §
227(a)(1). Our analysis therefore addresses whether the equipment used to send Internet-to-phone text messages has
the requisite capacity.
369
See Revolution Petition at 4. As described in the Petition and discussed herein, Internet-to-phone text messaging
technology enables the sending of messages from a computer to a wireless phone. The messages originate as
electronic mail (e-mail) sent to a combination of the recipient’s unique telephone number and wireless provider’s
domain name. They are automatically converted by the wireless provider into a text message format that is
delivered to the consumer’s wireless phone over the wireless provider’s network. Alternatively, the message enters
the wireless provider’s network via the carrier’s web portal and is then converted to a text-message format and
delivered to the consumer’s wireless phone over the wireless provider’s network. Id. at 2 n.1, 4-5.
370
Interconnected text messaging services are services that enable consumers to send text messages to and receive
text messages from all or substantially all text-capable U.S. telephone numbers, including through the use of
applications downloaded or otherwise installed on mobile phones. 47 C.F.R. § 20.18(n)(1).
371
Revolution Petition at 4-5.
372
Id. at 5.
373
Id. at 6-9; CDT Comments on Revolution Petition at 2-3. See Appendix M for a list of all commenters on the
Revolution Petition.
374
SMS is commonly known as text messaging. The Commission used “Internet-to-phone SMS” to refer to all
messages that are converted to SMS messages from messages sent or directed to an address with an Internet domain
reference, including both those sent as “e-mail” and those entered at a provider’s website interface. See Rules and
Regulations Implementing the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003,
(continued....)
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Federal Communications Commission FCC 15-72
Internet-to-phone texts require consumer consent because they use an autodialer. This is so, Revolution
Messaging argues, because the technology necessarily and inherently requires the collection and storage
of telephone numbers and has the capacity to dial such numbers by initiating calls to specified cellular
phone numbers associated with a domain name.
376
Revolution Messaging argues that Congress intended
the Commission to have authority to apply TCPA protections to future technologies, including Internet-
to-phone texts.
377
Lastly, Revolution Messaging notes that the CAN-SPAM Act, which generally requires
consent for email sent for commercial purposes without addressing non-commercial email, states
expressly that it does not override the TCPA.
378
111. We grant Revolution Messaging’s request to the extent described below. We conclude
that the equipment used to originate Internet-to-phone text messages to wireless numbers via email or via
a wireless carrier’s web portal is an “automatic telephone dialing system” as defined in the TCPA, and
therefore calls made using the equipment require consent.
379
We agree with commenters who argue that
such equipment meets the first element of the autodialer definition because it has the capacity to store or
produce telephone numbers to be called, using a random or sequential number generator.
380
Wireless
phone numbers are a necessary and unique identifier in each Internet-to-phone text message sent to a
wireless recipient. The record confirms that Internet-to-phone text messaging campaigns have
purportedly sent tens of thousands of such messages to wireless consumers.
381
The equipment used to
send these messages thus must necessarily store, or at least have the capacity to store, large volumes of
numbers to be called, and nothing in the record suggests otherwise.
382
CTIA states that “the equipment
‘stores’ and ‘produces’ the wireless telephone numbers to be called, and it does so using random or
sequential number generators to populate potential domain name addresses (e.g.,
(...continued from previous page)
Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Docket Nos. 04-53, 02-
278, Order, 19 FCC Rcd 15927, 15933, para. 14 n.48 (2004) (CAN-SPAM Order).
375
See 2003 TCPA Order, 18 FCC Rcd at 14115, para. 165; see also Satterfield v. Simon & Schuster, Inc., 569 F.3d
946 (9th Cir. 2009) (noting that text messaging is a form of communication used primarily between telephones and
is therefore consistent with the definition of a “call”).
376
Revolution Petition at 11-12 (noting that Congress provides no definition of “to dial” in the TCPA).
377
Id. at 12 (citing Sen. Hollings: “[t]he FCC is not limited to considering existing technologies. The FCC is given
flexibility to consider what rules should apply to future technologies as well as existing technologies,” see 137
CONG. REC. S18784 (daily ed. Nov. 27, 1991)).
378
Id. at 16 (citing the CAN-SPAM Order).
379
See 47 U.S.C. § 227(a)(1). As noted, the Commission previously has concluded that the TCPA’s restriction on
using autodialers to “call” wireless telephone numbers encompasses text messages. As a result, the issue of whether
a text message constitutes a “call” is not at issue here. So long as the initiating device has the requisite capacity to
meet the statutory definition of an autodialer and sends a text message, which the Commission has deemed a call,
the fact that the message is initiated from a phone versus some other device is not relevant. See 2003 TCPA Order,
18 FCC Rcd at 14115, para. 165; see also Joffe v. Acacia Mortgage Corporation, 121 P.3d 831 at 836-37 (Az. Ct.
App. 2006), cert. denied, 549 U.S. 1111 (2006); Intergovernmental Advisory Committee to the Federal
Communications Commission, Advisory Recommendation No: 2015-6 at para. 10 (May 15, 2015).
380
See, e.g., Revolution Petition at 11; CDT Comments on Revolution Petition at 3; CTIA Comments on Revolution
Petition at 5; Shields Comment on Revolution Petition at 1-5.
381
See, e.g., Revolution Petition at 7 (citing examples of various texting campaigns including press reports of an
entity claiming to have contact information for 120 million people, such as
www.americanindependent.com/153498/nc-text-messages-from-americans-in-contact-pac-flood-shuler-kissell-
districts); see also Shields Comments on Revolution Petition at 2 (noting that ccAdvertising has sent millions of
political text messages to cell phones).
382
See, e.g., CDT Comments on Revolution Petition at 5; CTIA Comments on Revolution Petition at 5.
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Federal Communications Commission FCC 15-72
383
Even assuming that the equipment does not actually use a
random or sequential number generator, the capacity to do so would make it subject to the TCPA.
384
One
commenter who opposes the Petition and addresses the autodialer definition does not contest that Internet-
to-phone messaging technology has at least the capacity to store or produce numbers using a random or
sequential number generator.
385
Instead, the commenter argues that the second part of the test—dialing—
is not met here.
386
112. We also agree with commenters that such equipment has the capacity to dial numbers and
thus meets the second element of the TCPA’s autodialer definition.
387
At the outset, we note that neither
the TCPA nor the Commission’s rules define “dial.” Where a statute’s plain terms do not directly address
the precise question at issue and the statute is ambiguous on the point, the Commission can provide a
reasonable construction of those terms.
388
We find it reasonable to interpret “dial” to include the act of
addressing and sending an Internet-to-phone text message to a consumer’s wireless number. We note that
a typical definition of “dial” is to “make a telephone call or connection.”
389
113. There is no dispute that Internet-to-phone text messaging technology is used to initiate
calls that ultimately are carried over wireless carriers’ networks to wireless consumers via their respective
unique telephone numbers. Rather than using a wireless phone to initiate the call, the sender has chosen
to initiate text messages using equipment that nevertheless “dials” numbers in a fashion required by and
compatible with the technical characteristics, features, and functionalities of the wireless carrier’s
network.
390
The TCPA’s text and legislative history reveal Congress’s intent to give the Commission
broad authority to enforce the protections from unwanted robocalls as new technologies emerge.
391
We
therefore believe Congress intended the word “dial” to mean initiating a communication with consumers
through use of their telephone number by an automated means that does not require direct human
intervention, recognizing that the specific actions necessary to do so will depend on technical
requirements of the carrier’s network. The carrier’s domain name performs the same function as routing
data existing within the telephone network and used in a “traditional” voice or text call to identify the
called party’s carrier so that the call can be routed to the correct carrier for completion to the called
party’s wireless telephone number. The fact that a component of the call that is invisible to the called
party involves using a domain name to identify the wireless carrier does not change this analysis.
383
CTIA Comments on Revolution Petition at 5.
384
See paras. 10-20, supra.
385
See ccAdvertising comments on Revolution Petition at 11 (disputing only whether the information that is stored
constitutes telephone numbers).
386
See id.
387
See, e.g., CDT Comments on Revolution Petition at 3-4; Shields Comments on Revolution Petition; AFL Reply
Comments on Revolution Petition at 2.
388
See, e.g., Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-46 (1984).
389
See http://www.merriam-webster.com/dictionary/dial (emphasis added).
390
This analysis is consistent with our clarifications regarding the end-to-end nature of communications involving
3G and GTL, see paras. 39-40, supra, and the Commission’s long-standing approach of viewing communications on
an end-to-end basis, without regard to intermediate steps. See, e.g., Teleconnect Co. v. Bell Tel. Co. of Pa., 10 FCC
Rcd 1626, 1632, para. 12 (1995) (“[B]oth court and Commission decisions have considered the end-to-end nature of
the communications more significant than the [intermediate] facilities used to complete such communications.”).
391
See 2003 TCPA Order, 18 FCC Rcd at 14091-92, paras. 131-133; see also H.R. REP. NO. 633, 2nd Sess., 101st
Cong. (1990) (“It should be noted that the bill’s definition of ‘automatic telephone dialing system’ is broad, not
only including equipment which is designed or intended to be used to deliver automatically-dialed prerecorded
messages, but also including equipment which has the ‘capability’ to be used in such manner.”) (emphasis added);
see also CTIA Comments on Revolution Petition at 6.
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Federal Communications Commission FCC 15-72
114. We conclude that by addressing a message using the consumer’s wireless telephone
number (e.g., [email protected] or entering a message on a web portal to be sent to a
consumer’s wireless telephone number) and sending a text message to the consumer’s wireless telephone
number, the equipment dials a telephone number and the user of such technology thereby makes a
telephone call to a number assigned to a wireless service as contemplated in section 227(b)(1) of the
Act.
392
We disagree, therefore, with the commenter who suggests that equipment used to originate
Internet-to-phone text messages does not meet the second element of the TCPA’s autodialer definition
because that technology does not use a “traditional” dialing technique.
393
115. From the recipient’s perspective, Internet-to-phone text messaging is functionally
equivalent to phone-to-phone text messaging, which the Commission has already confirmed falls within
the TCPA’s protection.
394
And the potential harm is identical to consumers; unwanted text messages pose
the same cost and annoyance to consumers, regardless of whether they originate from a phone or the
Internet. Finding otherwise—that merely adding a domain to the telephone number means the number
has not been “dialed”—when the effect on the recipient is identical, would elevate form over substance,
thwart Congressional intent that evolving technologies not deprive mobile consumers of the TCPA’s
protections, and potentially open a floodgate of unwanted text messages to wireless consumers.
116. Consistent with this analysis, we clarify that other types of text messages that pose the
same consumer harms are subject to TCPA consumer protections.
395
Specifically, consumer consent is
required for text messages sent from text messaging apps that enable entities to send text messages to all
or substantially all text-capable U.S. telephone numbers, including through the use of autodialer
applications downloaded or otherwise installed on mobile phones.
396
Consumers face the same privacy
impact and may incur data costs from such texts. To free these texts from the TCPA’s protection would
leave a glaring gap in the statute’s coverage.
117. Our finding is consistent with the First Amendment. The TCPA’s protections have been
in place for over two decades and have withstood multiple First Amendment challenges.
397
We see no
new constitutional issue posed by the application of this restriction on Internet-to-phone text messaging
technology and note that the TCPA’s restriction on the use of autodialers to contact wireless numbers
creates a content-neutral time, place, and manner restriction on speech. Such a restriction survives a First
Amendment challenge if it “furthers an important governmental interest that is unrelated to the
suppression of free expression, and the incidental restriction on alleged First Amendment freedom is no
392
47 U.S.C. § 227(b)(1).
393
See ccAdvertising Comments on Revolution Petition at 10.
394
See 2003 TCPA Order, 18 FCC Rcd at 14115, para. 165.
395
See id. (“This encompasses both voice calls and text calls to wireless numbers including, for example, short
message service (SMS) calls, provided the call is made to a telephone number assigned to such service.”) (emphasis
added).
396
47 C.F.R. § 20.18(n)(1).
397
See, e.g., Joffe, 121 P.3d at 841-43 (concluding that application of the TCPA’s restrictions on autodialed calls to
wireless numbers contacted via Internet-to-phone messaging did not violate any First Amendment rights); Wreyford
v. Citizens for Transp. Mobility, Inc., 1:12-CV-2524-RLV, 2013 WL 3965244 (N.D. Ga. Aug. 1, 2013); In re Jiffy
Lube Intern., Inc., Text Spam Litigation, 847 F. Supp. 2d 1253, 1262 (S.D. Cal. 2012); Kramer v. Autobytel, Inc.,
759 F. Supp. 2d 1165, 1169-70 (N.D. Cal. 2010); Lozano v. Twentieth Century Fox Film Corp., 702 F. Supp. 2d
999, 1010-12 (N.D. Ill. 2010); Abbas v. Selling Source, LLC, 2009 WL 4884471, at *7-8 (N.D. Ill. Dec. 14, 2009);
Strickler v. Bijora, Inc., 2012 WL 5386089, at *5 (N.D. Ill. Oct. 30, 2012); Maryland v. Universal Elections, Inc.,
729 F.3d 370, 377 (4th Cir. 2013) (holding that TCPA’s disclosure requirements in Section 227(d) are
constitutional).
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Federal Communications Commission FCC 15-72
greater than is essential to the furtherance of that interest.”
398
118. The benefits to wireless consumers of protection from unwanted robocalls and texts are
significant. By enacting the TCPA and its specific prohibition on autodialed, artificial-voice, and
prerecorded-voice calls to wireless numbers, Congress has expressed a significant governmental interest
in protecting wireless consumers from the use of autodialers, which can generate a substantial number of
calls that can impose costs, public safety risks, and privacy intrusions on the unwilling recipients of such
calls.
399
In addition to the invasion of consumer privacy for all wireless consumers, the record confirms
that some are charged for incoming calls and messages.
400
These costs can be substantial when they
result from the large numbers of voice calls and texts autodialers can generate. The massive growth in the
use of wireless devices by consumers since the TCPA was enacted serves only to increase the number of
wireless consumers potentially impacted by the use of autodialers and, thus, the governmental interest in
protecting wireless consumers from the costs and privacy intrusions of unwanted voice calls and text
messages.
401
119. The TCPA does not ban the use of autodialing technologies to dial telephone numbers.
Through the TCPA’s restrictions, Congress narrowly tailored its restriction on autodialers to those
consumers most vulnerable to harm while expressly exempting calls for an emergency purpose and
leaving open alternative modes of communicating with these consumers, e.g., obtaining consumer consent
or manual dialing. Autodialers can quickly dial thousands of numbers, a function that costs large
numbers of wireless consumers money and aggravation. And while we are encouraged by carrier efforts
to implement protections against unwanted text messages, the record indicates these measures have not
stemmed the tide of unwanted messages to wireless phones.
402
120. We disagree with commenters who suggest that, by enacting the CAN-SPAM Act after
the TCPA, Congress intended only the CAN-SPAM Act, and not the TCPA, to apply to Internet-to-phone
text messages sent to wireless phone numbers.
403
The CAN-SPAM Act protects consumers from
unwanted commercial e-mail, including unwanted messages to wireless devices.
404
The CAN-SPAM Act
directed the Commission to issue rules protecting wireless consumers from “unwanted mobile service
commercial messages.”
405
Neither the law’s text nor legislative history, however, supports the contention
398
See, e.g., Turner Broadcasting v. FCC, 512 U.S. 622 (1994).
399
See, e.g., Moser, 46 F.3d at 974 (citing Walters v. National Ass’n of Radiation Survivors, 473 U.S. 305, 331:
“[w]hen Congress makes findings on essentially factual issues . . . those finding are of course entitled to a great deal
of deference, inasmuch as Congress is an institution better equipped to amass and evaluate the vast amount of data
bearing on such an issue”); see also CTIA Comments on Revolution Petition at 7-8 (“[C]onfirming that parties must
have prior express consent before sending political campaign text messages would enhance the goals of the TCPA
and CAN-SPAM Act. For example, it would support the TCPA’s goals of protecting individual privacy by
preventing thousands (if not millions) of unwanted autodialed text messages sent directly to mobile devices.”).
400
See, e.g., AFL Reply Comments on Revolution Petition at 2; IBT Reply Comments on Revolution Petition; RM
Reply Comments on Revolution Petition at 13; VPC Comments on Revolution Petition at 1.
401
Data from the Commission’s annual report on mobile services indicate that, from 1992 to 2011, the number of
wireless subscribers/connections grew from approximately 11 million to over 300 million. See Implementation of
Section 6002(B) of the Omnibus Budget Reconciliation Act of 1993 Annual Report and Analysis of Competitive
Market Conditions with Respect to Commercial Mobile Services, First Report, 10 FCC Rcd 8844 (1995); Annual
Report and Analysis of Competitive Market Conditions in Respect to Mobile Wireless, Including Commercial Mobile
Service, WT No. 11-186, Sixteenth Report, 28 FCC Rcd. 3700 (2013).
402
See CTIA Comments on Revolution Petition at 12.
403
See ccAdvertising Comments on Revolution Petition at 12-13.
404
See CAN-SPAM Act, section 14(b), codified at 15 U.S.C. § 7712(b).
405
See 15 U.S.C. § 7712(a).
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Federal Communications Commission FCC 15-72
that Congress intended the CAN-SPAM Act to be the only regulation to apply to all unsolicited text
messages.
406
To the contrary, Congress stated that “[n]othing in this Act shall be interpreted to preclude
or override the applicability of [the TCPA].”
407
121. We also note that the CAN-SPAM Act’s coverage is different from the TCPA’s. CAN-
SPAM applies only to commercial messages, and to such messages even if they are not sent with an
autodialer, the latter of which is beyond the TCPA’s reach in some contexts.
408
As a result, application of
the TCPA to Internet-to-phone texts does not render the CAN-SPAM Act’s regulations superfluous, as
suggested by ccAdvertising, even as applied to mobile service commercial messages.
409
While
ccAdvertising argues that, “if . . . all messages sent using [I]nternet-to-text were already prohibited [under
the TCPA], then there would be no need to include [the CAN-SPAM provision against mobile service
commercial messages],”
410
we note that neither the TCPA nor our rules prohibit “all messages sent using
[I]nternet-to-text.” Rather, the TCPA prohibits only those Internet-to-text messages that are sent without
prior express consent using an autodialer, other than calls made for an emergency purpose.
411
122. We also find no support for the contention that the TCPA is not broad enough to
encompass Internet-to-phone text messaging.
412
Although the Commission has concluded that Internet-
to-phone messages directed to an Internet domain name are subject to the CAN-SPAM Act, notably
absent in the Commission’s Order implementing the CAN-SPAM rules is any statement or suggestion
that the language of the TCPA is not sufficiently broad to apply to Internet-to-phone text messages.
413
In
other words, nothing in the CAN-SPAM Order indicates that the TCPA is inapplicable to this situation.
We conclude, therefore, that nothing in the statutory language, the legislative history, or the
Commission’s implementation of the CAN-SPAM Act demonstrates that Congress intended only for the
CAN-SPAM Act to apply to text messaging calls to wireless devices.
6. Distinction Between Telemarketing and Informational Calls
123. We reject arguments that the TCPA’s protections are limited to telemarketing calls to
wireless numbers and should not require consent for non-telemarketing robocalls made with a predictive
dialer.
414
The TCPA’s restrictions on autodialed, artificial-voice, and prerecorded-voice calls to wireless
406
See also CDT Comments on Revolution Petition at 4; Shields Comments on Revolution Petition at 6-7; RM
Reply Comments on Revolution Petition at 10-11.
407
See 15 U.S.C. § 7712(a).
408
We note that, while the CAN-SPAM Act and the TCPA may overlap in certain areas (such as in the case of
mobile service commercial messages sent with an autodialer), they do not overlap for autodialed messages that are
non-commercial. We also note the general rule of statutory construction that two overlapping statutes may both be
given effect so long as there is no “positive repugnance” between them. Connecticut National Bank v. Germain, 503
U.S. 249, 254 (1992) (“Redundancies across statutes are not unusual events in drafting, and where . . . there is no
positive repugnancy between two laws, a court must give effect to both.”).
409
See ccAdvertising Comments on Revolution Petition at 13.
410
Id.
411
See 47 C.F.R. § 64.1200(a)(1).
412
See ccAdvertising Comments on Revolution Petition at 13.
413
See, e.g., CAN-SPAM Order, 19 FCC Rcd at 15932, para. 17 (clarifying that the TCPA’s restriction “applies to
all autodialed calls made to wireless numbers, including audio and visual services, regardless of the format of the
message”) (emphasis added)).
414
This issue was first raised in the CI Petition. See n. 42, supra. CI later withdrew its Petition. Communication
Innovators, Withdrawal of Petition, CG Docket No. 02-278, filed July 14, 2014. In the interest of removing
uncertainty on this issue, the Commission raises the issue on its own motion. See 47 C.F.R. § 1.2(a) (“The
Commission may, in accordance with section 5(d) of the Administrative Procedure Act, on motion or on its own
motion issue a declaratory ruling terminating a controversy or removing uncertainty.”).
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Federal Communications Commission FCC 15-72
numbers apply equally to telemarketing and informational calls.
415
With the exception of calls made for
emergency purposes or with the prior express consent of the called party, the TCPA broadly prohibits
calls made using “any automatic telephone dialing system” to “any telephone number assigned to a . . .
cellular telephone service” without limiting that restriction to telemarketing calls.
416
124. We agree with the commenter who disputes arguments favoring such a distinction,
stating: “[s]imply because the calls are not telemarketing calls does not lessen the cost to the recipients or
lessen the invasion of privacy caused by the automated calls.”
417
We recognize that the TCPA did not
establish this same level of protection from robocalls for residential line consumers. As the Commission
has previously observed, the TCPA contains “unique protections” for wireless consumers because
autodialed and prerecorded calls are “increasingly intrusive in the wireless context, especially where the
consumer pays for the incoming call.”
418
Moreover, the intrusion on the consumer’s privacy from
unwanted calls may actually be greater with wireless than wireline calls, where the calls are received on a
phone that the consumer may carry at all times.
7. Free-to-End-User Calls
125. We exempt from the TCPA’s consumer consent requirements, with conditions, certain
pro-consumer messages about time-sensitive financial
419
and healthcare issues.
420
With respect to
healthcare calls, we also provide clarification, as requested by AAHAM, on the issue of whether
provision of a phone number to a healthcare provider constitutes prior express consent for healthcare
calls, and on the issue of whether a third party may consent to receive calls on behalf of an incapacitated
patient.
421
126. Section 227(b)(2)(C) of the TCPA authorizes the Commission to exempt from its consent
requirement
422
calls to a number assigned to a cellular telephone service that are not charged to the
consumer, subject to conditions the Commission may prescribe “as necessary in the interest of” consumer
privacy rights.
423
127. ABA. ABA, on behalf of its member banks and other financial institutions,
424
asks the
Commission to exempt calls concerning: (1) “transactions and events that suggest a risk of fraud or
identity theft; (2) possible breaches of the security of customers’ personal information; (3) steps
consumers can take to prevent or remedy harm caused by data security breaches; and (4) actions needed
to arrange for receipt of pending money transfers.”
425
ABA asserts that these calls serve consumers’
415
See 47 U.S.C. § 227(b)(1); 47 C.F.R. § 64.1200(a); 2012 TCPA Order, 27 FCC Rcd at 1838-1844, paras. 20-34;
ACA Declaratory Ruling, 23 FCC Rcd at 565, para. 11.
416
47 U.S.C. § 227(b)(1).
417
Shields Comments on CI Petition at 2.
418
2012 TCPA Order, 27 FCC Rcd at 1839-40, para. 25.
419
See paras. 127-139, infra.
420
See paras. 143-148, infra; see also Intergovernmental Advisory Committee to the Federal Communications
Commission, Advisory Recommendation No: 2015-6 at para. 13 (May 15, 2015).
421
See paras. 140-142, infra.
422
See 47 U.S.C. § 227(b)(1)(A)(iii); 47 C.F.R. § 64.1200(a)(1)(iii).
423
47 U.S.C. § 227(b)(2)(C).
424
For purposes of this exemption, we accept ABA’s proposed definition of “financial institution” as “any
institution the business of which is engaging in financial activities as described in section 4(k) of the Bank Holding
Company Act of 1956.” See 15 U.S.C. § 6809(3)(A); see also Ex Parte Letter from Charles H. Kennedy, Counsel to
ABA, to Marlene H. Dortch, Secretary, FCC in CG Docket No. 02-278, at 3 (filed Feb. 5, 2015).
425
ABA Petition at 3.
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Federal Communications Commission FCC 15-72
interests and “can be conveyed most efficiently and reliably by automated calls to consumers’ telephones,
which increasingly are wireless devices,”
426
and would be made by financial institutions free to the end
user without the recipient’s prior express consent. The calls would be made “subject to such conditions as
the Commission may prescribe as necessary in the interest of the privacy rights the [TCPA] is intended to
protect.”
427
ABA states that “financial institutions will work with wireless carriers and third-party service
providers to ensure that recipients of notices under the requested exemption are not charged for those
messages,”
428
and thus satisfies the TCPA’s “no charge” requirement, which includes ensuring that
“notifications [do not] count against the recipient’s plan minutes or texts.”
429
128. We look to whether the messages in question can be exempted from the TCPA’s prior-
express-consent requirement while still protecting consumers’ privacy interests. ABA cites research
indicating that 98 percent of text messages are opened within three minutes of delivery, and that this can
“enabl[e] consumers and financial institutions to react promptly to time-critical information and contain
any potential damage that might be caused by a fraudulent transaction, data security breach, or other
event.”
430
According to the ABA, when financial institutions communicate with customers, they can
prevent identity thieves from exploiting stolen data, and thereby reduce identity theft.
431
Supporting
commenters affirm that sending messages to consumers’ cellular telephone numbers is the best and most
efficient method of reaching them in a timely manner—which is important because “[e]ffective fraud and
identity theft prevention requires the earliest possible contact with the customer.”
432
Opposing
commenters counter that banks can provide consumers with information on the benefits of these messages
and, if consumers find the messages desirable, they may provide consent.
433
129. For the reasons set forth below, we exempt these calls. For calls intended to prevent
fraudulent transactions or identity theft, ABA indicates that financial institutions use “experience-based
algorithms to identify [] events that present an increased risk,” such as purchases that are unusual for the
customer, purchases of goods that can readily be converted to cash, or changes of address closely
followed by a request for new payment cards.
434
Upon identifying one of these suspicious activities, a
financial institution seeks to contact the customer as quickly as possible “with the goal of verifying
identity and immediately accommodating the customer’s request” for services such as the establishment
of a new credit plan or an extension of credit where a fraud alert has been placed on the customer’s file.
435
The majority of commenters agree that “[s]econds count in these situations and immediate notifications
can help contain any potential damage that might result from a fraudulent transaction.”
436
While one
commenter argues that the messages are not truly time-sensitive, but are merely marketing, we note that
426
Id.
427
Id.
428
Id. at 17.
429
Cargo Airline Order, 29 FCC Rcd 3432 at *3, para. 12.
430
ABA Petition at 5.
431
Ex Parte Letter from Charles H. Kennedy, Counsel to ABA, to Marlene H. Dortch, Secretary, FCC in CG Docket
No. 02-278, at 4 (filed Jan. 26, 2015).
432
Visa Comments on ABA Petition at 2; ABA Reply Comments on ABA Petition at 12; Chamber Comments on
ABA Petition at 3; CUNA Comments on ABA Petition at 2-3; MasterCard Comments on ABA Petition at 5; ICUL
Comments on ABA Petition at 1; Identity Comments on ABA Petition at 1; Leagues Comments on ABA Petition at
1; OTA Comments on ABA Petition at 2. See Appendix B for a list of all commenters on the ABA Petition.
433
NCLC et al Comments on ABA Petition at 2, 4; Roylance Comments on ABA Petition at 1.
434
ABA Petition at 10-11.
435
Id. at 10.
436
CUNA Comments on ABA Petition at 3.
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Federal Communications Commission FCC 15-72
the restrictions imposed on the exemption requires that the messages include no marketing or advertising,
and that each message include information regarding how to opt out of future messages.
437
130. The second category involves data security breaches. These calls are intended to alert
consumers to data breaches at retailers and other businesses, which pose a security threat to the
customer’s financial account information.
438
A breach may occur when a merchant or other organization
identifies that the personal information it maintains about its customers has been accessed without
authorization.
439
The calls for which ABA seeks exemption would notify customers “of the breach and
any remedial action to be taken.”
440
131. Third are calls conveying measures consumers may take to prevent identity theft
following a data breach,
441
including: placing fraud alerts on a credit report, subscribing to credit
monitoring services, notice of receipt of new payment cards, information on activation of new payment
cards, and “how to take other steps that will ensure the availability of secure card transactions.”
442
Because of the increase in data breaches, these types of calls are intended to “help mitigate the[] effects”
of such breaches and “better enable consumers to protect their private information.”
443
We caution,
however, that these calls may not contain telemarketing, cross-marketing, solicitation, debt collection, or
advertising content of any kind. Informing a consumer of an instance of identity theft or even measures
he or she may take to address that instance of identity theft is distinct from marketing products a
consumer may use to prevent or rectify identify theft.
444
The exempted calls may not be used for
marketing purposes.
132. These three types of calls are all intended to address exigent circumstances in which a
quick, timely communication with a consumer could prevent considerable consumer harms from
occurring or, in the case of the remediation calls, could help quickly mitigate the extent of harm that will
occur. Under such circumstances, we find that the requirement to obtain prior express consent could
make it impossible for effective communications of this sort to take place. We disagree with opposing
commenters who argue that banks could solve this problem by providing consumers with information on
the benefits of these messages and allowing consumers to opt in to receiving these messages through
providing prior express consent.
445
Instead, we consider the urgency associated with these calls, the
unpredictable timing of the underlying problems, the financial repercussions associated with those
problems, and the risk that consumers may not have fully understood information provided to them
regarding consenting to these calls. As such, we conclude that these calls should be exempted from the
prior-express-consent requirement, with consumer privacy interests being protected instead by the
conditions contemplated by the statutory exemption provision that we specify below.
133. Fourth, ABA requests exemption for calls regarding money transfers. These messages
include notification to the recipient of steps to be taken in order to receive the transferred funds.
446
They
437
Shields Comments on ABA Petition at 1.
438
ABA Petition at 13.
439
Id.
440
Id.
441
ABA Petition at 14.
442
ABA Petition at 14-15.
443
FPF Comments on ABA Petition at 5.
444
See Ex Parte Letter from Margot Saunders, Counsel to National Consumer Law Center, to Marlene H. Dortch,
Secretary, FCC in CG Docket No. 02-278, at 3-4 (filed April 28, 2015).
445
NCLC et al Comments on ABA Petition at 2, 4; Roylance Comments on ABA Petition at 1.
446
ABA Petition at 15.
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Federal Communications Commission FCC 15-72
may also include a receipt for the money transfer to the transferring party.
447
According to the Petition,
money transfers “often must be delivered to persons who do not have an ongoing relationship with the
sending institution and therefore have not consented to receive automated calls from that institution.”
448
We also find exigency in these calls. Both the transferring party and the recipient of the transferred
money undoubtedly are interested in the details of the money transfer. Money transfers can be especially
time-sensitive in emergency situations where consumers may need immediate notification that they have
received money from another party.
134. Conditions on ABA’s request. We next consider what conditions are appropriate for the
exempted calls. ABA argues that these calls are different from the exempted calls in the Cargo Airline
Order and the categories are different from each other, and that they therefore warrant different
conditions.
449
In that Order, we specified that a caller must limit the frequency of the exempted calls to
either one or three notifications.
450
ABA argues that a single message is not always sufficient to convey
the necessary information.
451
It notes that financial institutions have no incentive to send “an excessive
number of these messages,” and that the Commission will “protect consumers if it does not [] impose
arbitrary limitations on the number of automated fraud-related calls or texts that may be sent.”
452
By way
of example, ABA indicates that a financial institution may send up to three alerts a day for three days
when it is attempting to reach a non-responsive consumer regarding identity theft or breach
notifications.
453
It also notes that some automated messages require a response from the consumer—such
as for the consumer to press “1” or “2”—and that the consumer’s response indicates whether additional
messages are necessary.
454
And in messages concerning remediation measures, where the financial
institution may want to communicate multiple pieces of information to the consumer, ABA asks that
financial institutions be permitted “to send as many messages as are needed to complete the process of
breach notification and remediation and to respond to consumer messages that are part of that process.”
455
135. We decline to grant the exemption without limitations on frequency, as ABA requests.
456
To do so would be to diminish consumers’ privacy rights, which we are required by statute to consider.
457
We limit the exempted calls to not more than three calls over a three-day period from a single financial
institution to the owner of an affected account.
458
These limits apply per event necessitating the exempted
447
Id.
448
Id.
449
See Cargo Airline Order, 29 FCC Rcd 3432 at *5, para. 18; ABA Petition at 17-21.
450
See Cargo Airline Order, 29 FCC Rcd 3432 at *4, para. 15.
451
ABA Petition at 18.
452
Id. (emphasis omitted).
453
Id. at 19.
454
Id. at 19-20.
455
Id. at 20.
456
ABA argues that the “Commission will protect consumers if it does not impose arbitrary limitations on the
number of automated fraud-related calls or texts that may be sent.” ABA Petition at 18. It also asks that the
exemption for breach and fraud-related communications “should permit three such messages to be sent for a
maximum of three days, if the consumer fails to respond” and that financial institutions be permitted “to send as
many messages as are needed to complete the process of breach notification and remediation and to respond to
consumer messages that are part of that process.” Id. at 19-20.
457
See 47 U.S.C. § 227(b)(2)(C).
458
If a customer is the owner of more than one affected account at a given financial institution, the total number of
exempted calls is limited to three calls per event per affected account per three-day period, not three calls total per
(continued....)
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Federal Communications Commission FCC 15-72
calls, whether that be a fraud or identity theft event, data security breach event, or event giving rise to the
need for remediation measures. We anticipate that the content of these three messages over a three-day
period will be different, based on ABA’s statement that a financial institution needs these multiple
messages to “complete the process of breach notification and remediation” or to “respond to a customer
message or otherwise complete the fraud-prevention process.”
459
A financial institution may, of course,
choose whether to use voice calls or text messages for these communications. Any message beyond this
limited number of three calls per event, over a three-day period, is not exempt and requires the consent of
the called party.
460
136. ABA proffered no opt-out condition in its Petition.
461
Subsequently, ABA stated that it
would “accept and implement a requirement that the relief requested . . . be conditioned upon offering and
honoring recipients’ requests not to receive future automated messages.”
462
ABA requests, however, that
“a consumer’s opt-out request apply only to the account and to the category of message in response to
which the request was made.”
463
It states, by way of example, that a consumer’s request to opt out of
future security breach notifications should not foreclose a financial institution from sending future
exempted messages concerning out-of-pattern activity alerts on the same account.
464
137. Consistent with ABA’s opt-out proposal and our precedent, we require financial
institutions to include in their messages a mechanism for recipients to easily opt out of future calls. We
agree with ABA that a consumer’s opt-out request should not be construed so broadly that opting out of
one category of financial calls effectively opts that consumer out of all financial calls for that account.
Consequently, financial institutions may tailor the opt-out notice so that a consumer is aware that a choice
to opt out of future calls is specific to one of the four categories of financial calls we address.
138. In light of these considerations, we adopt the following conditions for each exempted call
(voice call or text message) made by a financial institution:
1) voice calls and text messages must be sent, if at all, only to the wireless telephone number
provided by the customer of the financial institution;
2) voice calls and text messages must state the name and contact information of the financial
institution (for voice calls, these disclosures must be made at the beginning of the call);
3) voice calls and text messages are strictly limited to purposes discussed in paras. 129-137 above
and must not include any telemarketing, cross-marketing, solicitation, debt collection, or
advertising content;
4) voice calls and text messages must be concise, generally one minute or less in length for voice
calls (unless more time is needed to obtain customer responses or answer customer questions) and
160 characters or less in length for text messages;
5) a financial institution may initiate no more than three messages (whether by voice call or text
(...continued from previous page)
three-day period. If an account is not affected by a data security breach or identity theft alert, then no exempted
calls are needed and that account may not be the basis for additional calls in a three-day period.
459
ABA Petition at 19-20; Ex Parte Letter from Charles H. Kennedy, Counsel to ABA, to Marlene H. Dortch,
Secretary, FCC in CG Docket No. 02-278, at 2 (filed June 8, 2015).
460
See 47 C.F.R. § 64.1200(a)(1).
461
ABA Petition at 21.
462
Ex Parte Letter from Charles H. Kennedy, Counsel to ABA, to Marlene H. Dortch, Secretary, FCC in CG Docket
No. 02-278, at 3 (filed Feb. 5, 2015).
463
Id.
464
Id.
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Federal Communications Commission FCC 15-72
message) per event over a three-day period for an affected account;
6) a financial institution must offer recipients within each message an easy means to opt out of
future such messages, voice calls that could be answered by a live person must include an
automated, interactive voice- and/or key press-activated opt-out mechanism that enables the call
recipient to make an opt-out request prior to terminating the call, voice calls that could be
answered by an answering machine or voice mail service must include a toll-free number that the
consumer can call to opt out of future calls, text messages must inform recipients of the ability to
opt out by replying “STOP,” which will be the exclusive means by which consumers may opt out
of such messages; and,
7) a financial institution must honor opt-out requests immediately.
139. We emphasize that the exemption is limited to messages with the purposes discussed in
paras. 129-137 above. The exemption applies to robocalls and texts to wireless numbers only if they are
not charged to the recipient, including not being counted against any plan limits that apply to the recipient
(e.g., number of voice minutes, number of text messages) and the financial institution complies with the
enumerated conditions we adopt today.
140. AAHAM. AAHAM first asks the Commission to clarify and confirm that “the provision
of a telephone number by an individual to a healthcare provider constitutes ‘prior express consent’ for
non-telemarketing, healthcare calls to that telephone number by or on behalf of the healthcare
provider.”
465
AAHAM also asks that the Commission confirm that, for healthcare calls subject to HIPAA
protections, provision of a telephone number to a healthcare provider establishes prior express consent
under the TCPA not only for the healthcare provider, but also for calls “by or on behalf of the ‘covered
entity’ as well as its ‘business associates.’”
466
141. The Commission has stated that “persons who knowingly release their phone numbers
have in effect given their invitation or permission to be called at the number which they have given,
absent instructions to the contrary.”
467
In the ACA Declaratory Ruling, the Commission clarified that a
party who provides his wireless number to a creditor as part of a credit application “reasonably evidences
prior express consent by the cell phone subscriber to be contacted at the number regarding the debt.”
468
That consent is valid not only for calls made by the original creditor, but also for those made by a third
party collector acting on behalf of that creditor.
469
More recently, in the GroupMe Declaratory Ruling,
the Commission stated that “the scope of consent must be determined upon the facts of each situation.”
470
Nothing in these previous statements regarding consent prohibits us from granting the clarification
AAHAM and supporting commenters request.
471
We note, however, that “covered entity” and “business
465
AAHAM Petition at 1-2. AAHAM defines “healthcare provider” to include “hospitals, emergency care centers,
medical physician or service offices, poison control centers, and other healthcare professionals.” Id. at 1 n.4.
466
AAHAM Petition at 5.
467
1992 TCPA Order, 7 FCC Rcd at 8769, para. 31.
468
ACA Declaratory Ruling, 23 FCC Rcd at 564, para. 9.
469
See id. at 565, para. 10.
470
GroupMe Declaratory Ruling, 29 FCC Rcd 3442 at *4, para. 11.
471
NACDS Comments on AAHAM Petition at 4; PCMA Comments on AAHAM Petition at 2-3; Rite Aid
Comments on AAHAM Petition at 3-4; see also Letter from Rep. Scott R. Tipton, U.S. Congress, to Tom Wheeler,
Chairman, FCC, at 1-2 (April 2, 2015). See Appendix A for a list of all commenters on the AAHAM Petition.
In its comments, Rite Aid asks the Commission to address certain additional issues. Rite Aid Comments on
AAHAM Petition at 1. It asks the Commission to “resolve [] confusion by declaring that the exemption for HIPAA-
related calls to wireless numbers is the same as that for residential lines, i.e., that no prior consent is required.” Id. at
7. It also asks the Commission to grant a retroactive waiver to it “and other similarly situated parties who have been
(continued....)
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Federal Communications Commission FCC 15-72
associates” are defined terms in the HIPAA privacy rules.
472
The clarification we grant extends only to
those terms within the scope of HIPAA, which is not necessarily as broad as the scope AAHAM requests.
We clarify, therefore, that provision of a phone number to a healthcare provider constitutes prior express
consent for healthcare calls subject to HIPAA
473
by a HIPAA-covered entity and business associates
acting on its behalf, as defined by HIPAA, if the covered entities and business associates are making calls
within the scope of the consent given, and absent instructions to the contrary.
474
142. AAHAM also asks the Commission to clarify consent with regard to incapacitated
patients. AAHAM asserts that in situations such as where a patient may be incapacitated and unable to
provide a telephone number directly to a healthcare provider, but a third party intermediary provides the
number, the provision of the phone number by the third party should constitute prior express consent “for
healthcare calls to that number unless and until the patient requests otherwise.”
475
The Commission has
stated that “an intermediary may only convey consent that has actually been provided by the consumer;
the intermediary cannot provide consent on behalf of the consumer.”
476
We recognize that in certain
healthcare situations, however, it may be impossible for a caller to obtain prior express consent. We
clarify, therefore, that where a party is unable to consent because of medical incapacity,
477
prior express
consent to make healthcare calls subject to HIPAA may be obtained from a third party—much as a third
party may consent to medical treatment on an incapacitated party’s behalf. A caller may make healthcare
calls subject to HIPAA during that period of incapacity, based on the third party’s prior express consent.
Likewise, just as a third party’s ability to consent to medical treatment on behalf of another ends at the
time the patient is capable of consenting on his own behalf, the prior express consent provided by the
third party is no longer valid once the period of incapacity ends. A caller seeking to make healthcare calls
(...continued from previous page)
subject to TCPA-related litigation involving any alleged prior express consent requirement for HIPAA-related calls
to wireless numbers to the extent necessary.” Id. at 7-8. We decline to fully address this request for clarification
and retroactive waiver raised in a comment to a pending Petition. Rather, we point to footnote 7 of the Public
Notice for the AAHAM Petition, and suggest a comparison between 47 C.F.R. § 64.1200(a)(1), § 64.1200(a)(2), and
§ 64.1200(a)(3)(v). See Consumer and Governmental Affairs Bureau Seeks Comment on Petition for Expedited
Declaratory Ruling and Exemption From American Association of Healthcare Administrative Management, CG
Docket No. 02-278, Public Notice, 29 FCC Rcd 15267 at *1 n.7 (2014).
472
See 45 C.F.R. § 160.103; see also 47 C.F.R. § 64.1200(a)(2).
473
See 45 C.F.R. § 160.103 (definition of “health care”). While AAHAM indicates that HIPAA’s privacy rules
define “health care messages,” we find no such definition in the rules. See AAHAM Petition at 3 n.7. The
definition AAHAM provides in its Petition is the definition of “health care.” We note, additionally, that insurance-
coverage calls, which are included in AAHAM’s list of “healthcare calls,” are not necessarily among the topics in
HIPAA’s definition of “health care.” AAHAM Petition at 3; see also Shields Comments on AAHAM Petition at 2.
Our clarification extends only to calls that are subject to HIPAA.
474
By “within the scope of consent given, and absent instructions to the contrary,” we mean that the call must be
closely related to the purpose for which the telephone number was originally provided. For example, if a patient
provided his phone number upon admission to a hospital for scheduled surgery, then calls pertaining to that surgery
or follow-up procedures for that surgery would be closely related to the purpose for which the telephone number
was originally provided.
475
AAHAM Petition at 7.
476
GroupMe Declaratory Ruling, 29 FCC Rcd 3442 at *5, para. 14. In stating this previous determination, we note
that Commenter NACDS asks that we clarify that a telephone number provided to a pharmacy by a doctor’s office in
lieu of a patient who is too ill to do so, is prior express consent. NACDS Comments on AAHAM Petition at 7. We
reiterate that, according to the Commission’s clarification in GroupMe, an intermediary may only convey consent
that was provided by the consumer. See GroupMe Declaratory Ruling, 29 FCC Rcd 3442 at *5, para. 14.
477
When we refer to “incapacity,” we use the term in its legal sense under the applicable statutes, common law, or
judicial decisions. We do not speak of “incapacity” in some loose colloquial sense. Thus, the relevant contours of
“capacity”—including the duration of any “incapacity”—are to be assessed with reference to those legal indicia.
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Federal Communications Commission FCC 15-72
subject to HIPAA to a patient who is no longer incapacitated must obtain the prior express consent of the
called party.
143. Finally, AAHAM asks the Commission to exempt from the TCPA’s prior-express-
consent requirement certain non-telemarketing, healthcare calls that are not charged to the called party.
478
AAHAM notes that the calls provide vital, time-sensitive information patients welcome, expect, and often
rely on to make informed decisions
479
including: appointment and exam confirmations and reminders,
wellness checkups, hospital pre-registration instructions, pre-operative instructions, lab results, post-
discharge follow-up intended to prevent readmission, prescription notifications, home healthcare
instructions, available payment options, insurance coverage payment outreach and eligibility, account
communications and payment notifications, Social Security disability eligibility, and “health care
messages” as defined by HIPAA.
480
AAHAM points out that non-telemarketing healthcare calls and
healthcare calls subject to HIPAA are already exempt from the TCPA’s restrictions on prerecorded voice
message calls to residential numbers, which is an indication of the public interest in receiving these calls
by means of a limited exemption.
481
AAHAM also references the conditions the Commission set forth in
the Cargo Airline Order for each free-to-end-user voice call or text message call, and agrees to conditions
consistent therewith.
482
144. Following the analysis the Commission established in the Cargo Airline Order, we
consider whether AAHAM’s members are capable of satisfying the first part of our section 227(b)(2)(C)
inquiry—that is, proposed healthcare message notifications will “not [be] charged to the called party.”
483
AAHAM states that its members are capable of providing these calls by, among other options, “using
third-party solutions identified by [Cargo Airline Association] that can be deployed for subscribers of the
four nationwide wireless carriers.”
484
As the Commission did in the Cargo Airline Order, we interpret the
TCPA’s “no charge” requirement to “preclude exempting notifications that count against the recipient’s
plan minutes or texts.”
485
145. Next, we consider whether AAHAM’s proposal will allow us to grant the requested
exemption while protecting consumers’ privacy interests through conditions, as the statutory exemption
provision contemplates.
486
First, we consider the content of the messages. AAHAM notes that the calls
provide vital, time-sensitive information patients welcome, expect, and often rely on to make informed
decisions.
487
A supporting commenter states that the “uncharged, informational healthcare messages it
and other healthcare providers may send are [] the kind of communications that consumers desire, expect,
478
AAHAM Petition at 2.
479
Id. at 10.
480
Id. at 2-3. Regarding “health care messages,” see n. 473, supra.
481
Id. at 9-10. In the 2012 TCPA Order, the Commission exempted from its consent, identification, time-of-day,
opt-out, and abandoned call requirements “all prerecorded health care-related calls to residential lines that are
subject to HIPAA.” 2012 TCPA Order, 27 FCC Rcd at 1852, para. 57; see 47 C.F.R. § 64.1200(a)(2), (a)(3)(v).
Subsequent to that Order, HIPAA-covered autodialed, prerecorded voice, and artificial voice calls to a wireless
number are exempt from the TCPA’s written consent requirement but are still covered by the general consent
requirement. Compare 47 C.F.R. § 64.1200(a)(2) with 47 C.F.R. § 64.1200(a)(1).
482
AAHAM Petition at 11.
483
47 U.S.C. § 227(b)(2)(C).
484
AAHAM Petition at 11.
485
Cargo Airline Order, 29 FCC Rcd 3432 at *3, para. 12.
486
47 U.S.C. § 227(b)(2)(C); Cargo Airline Order, 29 FCC Rcd 3432 at *4, para. 13.
487
AAHAM Petition at 10.
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Federal Communications Commission FCC 15-72
and benefit from.”
488
146. While these statements regarding the public’s interest in and need for timely receipt of
these calls are likely true regarding the majority of the types of calls AAHAM lists in its Petition, we are
concerned that these policy arguments are not true for all types of calls AAHAM wishes to make under
the TCPA’s exemption provision. For example, while we recognize the exigency and public interest in
calls regarding post-discharge follow-up intended to prevent readmission, or prescription notifications, we
fail to see the same exigency and public interest in calls regarding account communications and payment
notifications, or Social Security disability eligibility.
489
While this second group of calls regarding billing
and accounts may convey information, we cannot find that they warrant the same treatment as calls for
healthcare treatment purposes. Timely delivery of these types of messages is not critical to a called
party’s healthcare, and they therefore do not justify setting aside a consumer’s privacy interests in favor
of an exemption for them. We grant the exemption, with the conditions below, but restrict it to calls for
which there is exigency and that have a healthcare treatment purpose, specifically: appointment and exam
confirmations and reminders, wellness checkups, hospital pre-registration instructions, pre-operative
instructions, lab results, post-discharge follow-up intended to prevent readmission, prescription
notifications, and home healthcare instructions.
490
We also clarify that HIPAA privacy rules shall control
the content of the informational message where applicable, such as where the message attempts to relate
information of a sensitive or personal nature; as one commenter cautions: “the information provided in
these exempted voice calls and texts must not be of such a personal nature that it would violate the
privacy” of the patient if, for example, another person received the message.
491
We therefore grant the
exemption for calls subject to HIPAA, but limit this exemption by excluding any calls contained therein
that include telemarketing, solicitation, or advertising content, or which include accounting, billing, debt-
collection, or other financial content.
492
147. Conditions on AAHAM’s Request. We adopt the following conditions for each exempted
call (voice call or text message) made by or on behalf of a healthcare provider:
1) voice calls and text messages must be sent, if at all, only to the wireless telephone number
provided by the patient;
488
Rite Aid Comments on AAHAM Petition at 9-10 (internal quotation marks omitted).
489
AAHAM Petition at 3. While calls regarding Social Security disability eligibility may, in fact, raise issues
regarding the timely provision of medical treatment, these issues are not readily apparent. Nothing in the record
indicates what the content of these calls may be—whether they relate to eligibility for treatment, eligibility for non-
healthcare services, or eligibility for other services. Without additional information, we are not able to determine
whether the calls contain exigent information for a true healthcare treatment purpose, as opposed to information
regarding billing and accounts information that is not of a true healthcare treatment purpose.
490
See id. at 2-3. For example, from the list AAHAM includes in its Petition, the following types of calls would
likely be exempt because of exigency and a true healthcare purpose: appointment and exam confirmations and
reminders, wellness checkups, hospital pre-registration instructions, pre-operative instructions, lab results, post-
discharge follow-up intended to prevent readmission, prescription notifications, and home healthcare instructions.
See AAHAM Petition at 2-3.
491
See Ex Parte Letter from Margot Saunders, Counsel to National Consumer Law Center, to Marlene H. Dortch,
Secretary, FCC in CG Docket No. 02-278, at 3-4 (filed April 28, 2015) (expressing concern that “if the call is health
related—a test result necessitating a doctor’s appointment, the need to fill a prescription—it would be a serious
breach of privacy for one person to hear about these issues when they apply to another); Ex Parte Letter from
Victoria Di Tomasco, AAHAM President, to Marlene H. Dortch, Secretary, FCC in CG Docket No. 02-278, at 2
(filed June 11, 2015).
492
See Ex Parte Letter from Margot Saunders, Counsel to National Consumer Law Center, to Marlene H. Dortch,
Secretary, FCC in CG Docket No. 02-278, at 5 (filed Feb. 23, 2015) (objecting to granting AAHAM protection for
“non-telemarketing calls that healthcare providers ordinarily make, including debt collection calls”).
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Federal Communications Commission FCC 15-72
2) voice calls and text messages must state the name and contact information of the healthcare
provider (for voice calls, these disclosures would need to be made at the beginning of the call);
3) voice calls and text messages are strictly limited to the purposes permitted in para. 146 above;
must not include any telemarketing, solicitation, or advertising; may not include accounting,
billing, debt-collection, or other financial content; and must comply with HIPAA privacy rules ;
4) voice calls and text messages must be concise, generally one minute or less in length for voice
calls and 160 characters or less in length for text messages;
5) a healthcare provider may initiate only one message (whether by voice call or text message)
per day, up to a maximum of three voice calls or text messages combined per week from a
specific healthcare provider;
6) a healthcare provider must offer recipients within each message an easy means to opt out of
future such messages, voice calls that could be answered by a live person must include an
automated, interactive voice- and/or key press-activated opt-out mechanism that enables the call
recipient to make an opt-out request prior to terminating the call, voice calls that could be
answered by an answering machine or voice mail service must include a toll-free number that the
consumer can call to opt out of future healthcare calls, text messages must inform recipients of
the ability to opt out by replying “STOP,” which will be the exclusive means by which consumers
may opt out of such messages; and,
7) a healthcare provider must honor the opt-out requests immediately.
148. We emphasize that the exemption is limited to messages with the purposes discussed in
para. 146 above. The exemption applies to robocalls and texts to wireless numbers only if they are not
charged to the recipient, including not being counted against any plan limits that apply to the recipient
(e.g., number of voice minutes, number of text messages) and the healthcare providers complies with the
enumerated conditions we adopt today.
8. Waiver and Additional Exemption Requests
149. In a footnote to its Petition, Glide states: “If the Commission declines to issue the
requested declaratory ruling, it should grant [Glide] a retroactive waiver for the [a]pp’s invitation
mechanism.”
493
As support for this waiver request, Glide cites to Section 1.3 of the Commission’s rules,
which provides that “[t]he provisions of this chapter may be . . . waived for good cause shown, in whole
or in part, at any time by the Commission.”
494
In this Declaratory Ruling and Order, we decline to issue
the clarification Glide has requested. We also decline to grant a retroactive waiver for the Glide app’s
invitational message function.
150. The Commission may waive any of its rules for good cause shown.
495
A waiver may be
granted if: (1) special circumstances warrant a deviation from the general rule and (2) the waiver would
better serve the public interest than would application of the rule.
496
Glide has not pled—much less pled
with particularity—facts and circumstances that warrant a waiver.
497
Its entire argument for waiver
493
Glide Petition at 5 n.9.
494
47 C.F.R. § 1.3.
495
Id. § 1.3; WAIT Radio v. FCC, 418 F.2d 1153, 1157 (D.C. Cir. 1969), appeal after remand, 459 F.2d 1203 (D.C.
Cir. 1972), cert. denied, 409 U.S. 1027 (1972) (citing Rio Grande Family Radio Fellowship, Inc. v. FCC, 406 F.2d
664 (D.C. Cir. 1968)); Northeast Cellular Tel. Co. v. FCC, 897 F.2d 1164 (D.C. Cir. 1990).
496
Northeast Cellular Tel. Co., 897 F. 2d at 1166.
497
See Glide Petition at 5 n.9; WAIT Radio, 418 F.2d at 1157 (stating that an applicant seeking a waiver faces a
“high hurdle” and “must plead with particularity the facts and circumstances which warrant such action”) (citation
and internal quotation marks omitted).
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Federal Communications Commission FCC 15-72
consists of the single sentence quoted above, which merely asks that the Commission grant the waiver.
498
Glide has not attempted to establish that special circumstances warrant a deviation from the general rule,
or that such deviation will serve the public interest. Because Glide’s request for waiver fails to
demonstrate the required information, we deny its request for retroactive waiver of the TCPA’s consent
requirement for robocalls and texts to wireless numbers.
151. Alongside its request for retroactive waiver, Glide asks that the Commission “exempt
from the TCPA rules” the invitational message function of its app. The TCPA includes a provision
allowing the Commission to exempt certain calls from the restrictions on calls made by autodialers or
using an artificial or prerecorded voice to, among others, cellular telephone numbers.
499
In its request for
waiver, Glide cites to the provision of the Act that permits exemption of “calls to a telephone number
assigned to a cellular telephone service that are not charged to the called party.”
500
Glide has not alleged
or established, however, that the persons who receive its invitational messages are never charged for the
texts.
501
We, therefore, decline to grant an exemption under section 227(b)(2)(C) of the Act.
502
9. Call-Blocking Technology
152. In this section, we affirm that nothing in the Communications Act or our rules or orders
prohibits carriers or VoIP providers from implementing call-blocking technology that can help
consumers
503
who choose to use such technology to stop unwanted robocalls. Consumers currently have
the choice to use call-blocking technology to block individual numbers or categories of numbers, and may
continue to do so.
504
Additionally, in the interests of public safety, we strongly encourage carriers, VoIP
providers, and independent call-blocking service providers to avoid blocking autodialed or prerecorded
calls from public safety entities, including PSAPs, emergency operations centers, or law enforcement
agencies; blocking these calls may compromise the effectiveness of local and state emergency alerting
and communications programs.
505
We expect that, with this clarification, consumers will benefit from
improved call-blocking options that complement our decisions in this Declaratory Ruling and Order by
deterring unwanted calls.
153. Thirty-nine Attorneys General, including states, the District of Columbia, and Guam,
498
See Glide Petition at 5 n.9.
499
47 U.S.C. § 227(b)(2)(C).
500
Id.
501
The most Glide asserts is that, when users send invitational messages through its app rather than as text messages
outside the app, “the administrative burden on users” is reduced and it “enabl[es] them to avoid potential fees that
may be charged by their carriers for sending text messages.” Glide Petition at 15 n.37. The TCPA is not concerned,
however, with reducing expenses of persons placing calls, but with “inappropriately shift[ing] marketing costs from
sellers to consumers.” 2003 TCPA Order, 18 FCC Rcd at 14092, para. 133.
502
47 U.S.C. § 227(b)(2)(C).
503
Our use of “consumers” in this context encompasses both residential or individual customers as well as business
customers of the service providers.
504
Consumer choice has been important to the Commission in previous decisions, and continues to be important.
See Protecting and Promoting the Open Internet, GN Docket No. 14-28, FCC 15-24, Report and Order on Remand,
Declaratory Ruling, and Order, 2015 WL 1120110 at *63, para. 220 (2015) (“broadband providers may also
implement network management practices that are primarily used for, and tailored to, addressing traffic that is
unwanted by end users”).
505
See, e.g., Call Control Comments on NAAG Letter at 5 (“Call Control, for example, identifies incoming
emergency calls and is programmed to always allow these calls. Furthermore, in Call Control when a user dials 911,
Call Control is placed in Emergency Mode whereby all call blocking is temporarily disabled to ensure return calls
from emergency officials are not blocked inadvertently.”).
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Federal Communications Commission FCC 15-72
seek clarification through a letter from NAAG.
506
They ask what legal or regulatory prohibitions, if any,
prevent telephone carriers
507
from implementing call-blocking technology and the relevance, if any, of
customers affirmatively “opting in” to use it.
508
They also ask whether telephone carriers may legally
block certain types of calls—such as telemarketing calls—at a customer’s request if “technology is able to
identify incoming calls as originating or probably originating from a telemarketer.”
509
Finally, they ask
whether USTelecom’s description of the Commission position as “strict oversight in ensuring the
unimpeded delivery of telecommunications traffic”
510
is accurate and, if so, upon what basis the
Commission claims that telephone carriers may not “block, choke, reduce, or restrict telecommunications
traffic in any way[.]”
511
As the Attorneys General note, a USTelecom representative stated in
Congressional testimony that “[t]he current legal framework simply does not allow [phone companies] to
decide for the consumer which calls should be allowed to go through and which should be blocked.”
512
154. We grant the Attorney Generals’ request for clarification and clarify that there is no legal
barrier to stop carriers and providers of interconnected and one-way VoIP services from implementing
call-blocking technology and offering consumers the choice, through an informed opt-in process, to use
such technology to block individual calls or categories of incoming calls that may be part of a mass
unsolicited calling event. As such, we find that telephone carriers
513
may legally block calls or categories
of calls at a consumer’s request if available technology identifies incoming calls as originating from a
source that the technology, which the consumer has selected to provide this service, has identified.
514
506
See n. 8, supra.
507
While the Attorneys General ask about “telephone carriers’” obligations, the Commission’s call completion
obligations extend to interconnected and one-way VoIP service providers. See Rural Call Completion, WC Docket
No. 13-39, 28 FCC Rcd 16154, para. 18 (2013) (citing Connect America Fund, WC Docket Nos. 10-90, 07-135, 05-
337, 03-109, Report and Order and Further Notice of Proposed Rulemaking, 26 FCC Rcd 17663, 18028-29, para.
973-74 (2011) (2011 Report and Order) (stating that interconnected and one-way VoIP service providers are subject
to the call blocking limitations)), modified on reconsideration, Rural Call Completion, WC Docket No. 13-39, 29
FCC Rcd 14026, para. 38 (2014) (rejecting Sprint’s assertion that the Commission has not adequately identified
prohibited practices and restating that the Commission addressed the prohibition on call blocking and, inter alia,
made clear that the prohibition applies to VoIP-to-PSTN traffic and providers of interconnected VoIP and “one-
way” VoIP services).
508
NAAG Letter at 2. The Attorneys General, in their letter, list three particular call-blocking technologies—
Nomorobo, Call Control, and Telemarketing Guard—as examples of the kinds of call-blocking technologies about
which they inquire. Id. at 2. These three services offer consumers the ability to block calls that the respective
service providers identify as being robocalls. We consider such call-blocking technologies generally and do not
make any rulings or findings with respect to particular services or the specific technologies they use, nor do we
decide whether any specific service or technology is lawful under our ruling today.
509
NAAG Letter at 2-3.
510
Id. (quoting Letter from USTelecom to Senator Claire McCaskill, Chairwoman, U.S. Senate Subcommittee on
Consumer Protection, Product Safety, and Insurance, at 5 (Oct. 15, 2013)).
511
NAAG Letter at 3 (largely quoting Establishing Just and Reasonable Rates for Local Exchange Carriers; Call
Blocking by Carriers, WC Docket No. 07-135, Declaratory Ruling and Order, 22 FCC Rcd 11629, 11631, para. 6
(WCB 2007) (2007 Declaratory Ruling) (stating: “Specifically, Commission precedent provides that no carriers,
including interexchange carriers, may block, choke, reduce or restrict traffic in any way.”).
512
NAAG Letter at 1; FTC Staff Comments on NAAG Letter at 5; see also Stopping Fraudulent Robocall Scams:
Can More Be Done? Hearing Before the Subcomm. on Consumer Protection, Product Safety, and Insurance of the
Comm. on Commerce, Science, and Transportation, 113th Congress, at 36 (July 10, 2013). See Appendix J for a list
of all commenters on the NAAG Letter.
513
References in this section to “carriers” include VoIP providers, unless otherwise indicated.
514
We do not distinguish between technology that blocks individual numbers or categories of numbers, or that relies
on carrier-provided lists of numbers versus crowd-sourced black lists of numbers. For purposes of this statement of
(continued....)
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Federal Communications Commission FCC 15-72
155. We agree with the large number of consumer commenters and the Federal Trade
Commission that consumers need new and better tools to stop robocalls to their homes and wireless
numbers.
515
Consumers Union, for example, submitted electronic signatures of 50,077 consumers who
agree with the statement: “Please authorize the phone companies to block unwanted robocalls before they
come to me.”
516
Likewise, Telephone Science Corporation includes in its comment a list of 425,000
consumers who ask for its call-blocking service, which currently works only on VoIP services, to be
implemented on “traditional copper landlines and wireless phones” as well.
517
Commenters describe the
cost of unwanted robocalls, including per-minute charges that can especially hurt low-income
consumers.
518
Other commenters emphasize that unwanted robocalls disturb their productivity or
privacy,
519
or can threaten their physical safety.
520
156. FTC staff states that it sees “no legal barriers or policy considerations [that] prevent
common carriers from offering technology that allows their customers to block unwanted calls.”
521
The
FTC notes that a determination from this Commission that common carriers can offer call-blocking
services will allow common carriers to be more responsive to their consumers, and that “[u]ltimately,
widespread availability and use of call-blocking technology will substantially reduce the number of
unwanted and illegal telemarketing calls received by consumers.”
522
Even carriers, notwithstanding
industry testimony quoted above, agree that consumers have a right to block calls that is not inconsistent
with their call completion obligations under section 201(b) of the Act.
523
Commenters who addressed
section 214(a) of the Act likewise found no barrier if consumers acknowledge and accept the risk of
inadvertent blocking.
524
Indeed, there appears to be no legal dispute in the record that the
Communications Act or Commission rules do not limit consumers’ right to block calls, as long as the
(...continued from previous page)
clarification, if the consumer is informed of the risk that the technology may inadvertently block desired calls
(including both the existence of the risk and the approximate magnitude of the risk, where ascertainable), then
nothing in our rules prohibits a carrier from offering a consumer the choice to use the technology.
515
See, e.g., Hull Comments on NAAG Letter at 1; Hearshen Comments on NAAG Letter at 1; Schrank Comments
on NAAG Letter at 1; Delton Comments on NAAG Letter at 1; Borkan Comments on NAAG Letter at 1; Lipton
Comments on NAAG Letter at 1; Wilson Comments on NAAG Letter at 1; Arnold Comments on NAAG Letter at 1;
Wuzburg Comments on NAAG Letter at 1; Vinson Comments on NAAG Letter at 1; Strother Comments on NAAG
Letter at 1; Adams Comments on NAAG Letter at 1.
516
Consumers Union Comments on NAAG Letter at 1.
517
TSC Comments on NAAG Letter at 3. TSC’s call-blocking service is Nomorobo, which uses “simultaneous ring
technology” to route incoming calls to both the consumer’s home phone and the Nomorobo server; “[i]f Nomorobo
determines that [the caller] is a robocaller, Nomorobo answers the call on behalf of the user” and the “subscriber
only hears a single ring in their home.” Id. at 1.
518
See, e.g., Weiss Comments on NAAG Letter at 1; Friedman Comments on NAAG Letter at 1; Black Comments
on NAAG Letter at 1; Turner Comments on NAAG Letter at 1; see also TracFone Reply Comments on NAAG
Letter at 2 (explaining how unwanted robocalls deplete the monthly minute allocations of federal Lifeline program
participants).
519
See, e.g., Ruddy Comments on NAAG Letter at 1; Foxworthe Comments on NAAG Letter at 1; Bratton
Comments on NAAG Letter at 1; Petit Comments on NAAG Letter at 1; Scanlan Comments on NAAG Letter at 1;
Maslea Comments on NAAG Letter at 1; McQuaid Comments on NAAG Letter at 1.
520
See, e.g., Knott Comments on NAAG Letter at 1; Briggs Comments on NAAG Letter at 1; Riter Comments on
NAAG Letter at 1.
521
FTC Staff Comments on NAAG Letter at 1.
522
Id.
523
AT&T Comments on NAAG Letter at 9; Verizon Comments on NAAG Letter at 9.
524
AT&T Comments on NAAG Letter at 9-13; Call Control Comments on NAAG Letter at 4.
8035
Federal Communications Commission FCC 15-72
consumer makes the choice to do so.
157. We clarify that services that allow consumers to designate categories of incoming calls
(not just individual telephone numbers) to be blocked, such as a “telemarketer” category, also constitute
consumer choice within their right to block calls. Limiting that right to individual numbers would leave
consumers without the ability to block most unwanted calls. While individual number blocking is
useful—e.g., to avoid harassing calls from known individuals—it cannot help consumers avoid mass
unsolicited calling, such as by telemarketers or scammers, known to cause consumers problems. Carriers
and VoIP providers already offer blocking services that go beyond individual numbers, including services
that block calls without Caller ID, block all calls except those from numbers specified by the consumer,
and block all calls.
525
Regardless of how a blocking technology obtains the individual phone numbers
within these categories, a consumer may choose to subscribe to a blocking service as long as the carrier
offering the service or coordinating with the technology provider adequately discloses to the consumer the
risks of inadvertent blocking. We strongly encourage carriers, VoIP providers, and independent call-
blocking service providers to avoid blocking autodialed or prerecorded calls from public safety entities,
including PSAPs, emergency operations centers, or law enforcement agencies. Blocking such calls may
compromise the effectiveness of local and state emergency alerting and communications programs.
158. The actions of carriers and VoIP providers in offering these services are consistent with
the Commission’s precedent in this area. The Commission has established that consumers have a right to
block calls. In 1991, the Commission stated that local exchange carriers (LECs) could offer blocking and
screening services to assist in the prevention of toll fraud, to which aggregators such as payphone owners
could subscribe, but declined to require all LECs to provide such services.
526
In 2004, the Commission
stated that telecommunications relay services (TRS) providers “are capable of providing anonymous call
rejection . . . as long as the TRS consumer seeking to use [this] feature[], whether the calling party or the
called party, subscribes to the service.”
527
And in 2007 the Wireline Competition Bureau stated that,
while “no carriers . . . may block, choke, reduce or restrict traffic in any way,”
528
that had “no effect on
the right of individual end users to choose to block incoming calls from unwanted callers.”
529
In 2011 and
2012, the Commission reiterated that previous call-blocking concerns had arisen as carriers attempted
“self-help” methods for avoiding certain access charges, intercarrier compensation charges,
530
or
termination charges through the discriminatory blocking of calls to rural rate-of-return local exchange
carriers.
531
In other words, these call-blocking concerns related to carriers or their underlying providers
blocking calls at their own discretion without providing consumers any choice or, indeed, even awareness
of the practice. We therefore agree with the NTCA, which represents many rural local exchange carriers
525
See e.g., AT&T Comments on NAAG Letter at Appendix A at 2; FTC Staff Comments on NAAG Letter at 6.
526
Policies and Rules Concerning Operator Service Access and Pay Telephone Compensation, CG Docket No. 91-
35, Report and Order and Further Notice of Proposed Rule Making, 6 FCC Rcd 4736, 4741, para. 15 (1991); see
also Policies and Rules Concerning Operator Service Access and Pay Telephone Compensation, CG Docket No. 91-
35, Third Report and Order, 11 FCC Rcd 17021, 17031, para. 16 (1996) (declining to require LECs to provide
international blocking to residential customers).
527
Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech
Disabilities, CG Docket Nos. 90-571, 98-67, 03-123, Report and Order, Order on Reconsideration, and Further
Notice of Proposed Rulemaking, 19 FCC Rcd 12475, 12508, para. 74 (2004).
528
2007 Declaratory Ruling, 22 FCC Rcd at 11631, para. 6.
529
Id. at 11632, para. 7 n.21.
530
2011 Report and Order, 26 FCC Rcd at 18029, para. 973 n.2038 (citing 2007 Declaratory Ruling, 22 FCC Rcd at
11632, para. 7).
531
Developing an Unified Intercarrier Compensation Regime, CC Docket No. 01-92, Establishing Just and
Reasonable Rates for Local Exchange Carriers, WC Docket No. 07-135, Declaratory Ruling, 27 FCC Rcd 1351,
1354, para. 9 (WCB 2012).
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Federal Communications Commission FCC 15-72
affected by such call blocking, that “the policy implications raised in this proceeding are separate and
distinct from the requirement of carriers to complete calls and refrain from engaging in abusive and
anticompetitive practices.”
532
We also note that in its 2011 Report and Order, the Commission cited the
Wireline Competition Bureau’s 2007 statement that a previous call-blocking decision had “‘no effect on
the right of individual end users to choose to block incoming calls from unwanted callers.’”
533
The
Commission’s most recent statements on call completion, as they relate to inmate calling services, again
address provider-initiated blocking, rather than a consumer’s choice to block.
534
159. Thus, the sole issue appears to be the efficacy of current call-blocking technology.
USTelecom, for example, states that, while “the Commission’s precedent establishes an affirmative right
for ‘individual end users’ to choose to ‘block incoming calls from unwanted callers,’”
535
phone companies
grapple with relying on call mitigation technologies that may be overly-inclusive or -exclusive and
attempt to ensure that they do not “inadvertently block, choke, reduce or restrict legitimate traffic in the
network.”
536
CTIA likewise is concerned about privacy and the blocking of non-robocallers by the
blocking technologies currently available.
537
AT&T also expresses concerns regarding the inadvertent
blocking of non-robocallers,
538
and asks that the Commission not require carriers to implement consumer-
directed or consumer-managed call blocking services.
539
Verizon describes steps it takes to stop “illegal
robocalls at their source” and states that it offers its “wireline and wireless customers various tools they
can use to stop receiving” such calls.
540
Verizon specifically states that the “Commission’s existing
policies are not impeding the work Verizon and others are already doing to take millions of robocalls off
the [public switched telephone network (PSTN)] by shutting down illegal robocall operations, nor are
they constraining consumers’ ability to use existing robocall mitigation products to directly protect
themselves from unwanted robocalls.”
541
160. We agree with the FTC that, “[t]he fact that current call-blocking technology is not
perfect [] does not prevent telephone carriers from being able to offer [it] to their customers. . . . So long
as providers of call-blocking services provide accurate disclosures to consumers when they sign up for
these services that certain calls they want to receive may be blocked, consumers can decide for
themselves whether to risk the disruption of those calls.”
542
As long as the carrier offering its own
product or coordinating with another product provider offers adequate disclosures, such as that the
technology may inadvertently block wanted calls, consumers have the right to choose the technology—
532
NTCA comments on NAAG Letter at 3.
533
2011 Report and Order, 26 FCC Rcd at 18029, paras. 973-74.
534
Specifically, the Commission found that “billing-related call blocking by interstate ICS providers that do not
offer an alternative to collect calling to be an unjust and unreasonable practice under section 201(b)” of the Act of
1934, as amended. Inmate Calling Order, 28 FCC Rcd at 14168, para. 113; 47 U.S.C. § 201(b).
535
USTelecom Comments on NAAG Letter at 8.
536
Id. at 8-9.
537
CTIA Comments on NAAG Letter at iii, 14-15 (explaining that privacy concerns arise where screening
technology “would require the carrier to allow the solution administrator to screen subscribers’ incoming calls to
determine whether they are from an unwanted robocaller, a permitted robocaller, or a live individual,” which could
raise questions concerning “a carrier’s traditional responsibility to avoid intercepting or divulging the content of
communications”).
538
AT&T Comments on NAAG Letter at 4.
539
Id. at 16.
540
Verizon Comments on NAAG Letter at 3-5.
541
Id. at 9.
542
FTC Staff Comments on NAAG Letter at 7.
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Federal Communications Commission FCC 15-72
whether it is offered by a carrier, VoIP provider, or third party as part of a carrier service.
543
The carriers’
current blocking options and third-party options alike are subject to problems caused by Caller ID
spoofing, yet those services appear popular with consumers. Moreover, consumers can easily drop those
services or choose services that send a call directly to voicemail, giving them options to decide the level
of error they are willing to accept. The disclosures we require are of “factual and uncontroversial
information,”
544
which “do[] not offend the core First Amendment values of promoting efficient exchange
of information or protecting individual liberty interests.”
545
Consequently, these required disclosures
satisfy the Zauderer standard, which the Supreme Court has held applies to the required disclosure of
purely factual, non-controversial information that does not suppress speech.
546
161. In order to aid customers in making such informed choices, we encourage technologies
designed for blocking incoming calls that are part of mass unsolicited calling events to provide features
that will allow customers to ensure that calls that are solicited, such as municipal and school alerts, are not
blocked, and that will allow customers to check what calls have been blocked and easily report and
correct blocking errors. Additionally, in the interests of public safety, we strongly encourage carriers and
VoIP providers, as well as independent call-blocking service providers, to develop protocols and
technology so that PSAP calls and other emergency calls are not blocked.
162. We therefore disagree with commenters who suggest that the Commission should avoid
clarifying carrier obligations until all voice service is Internet Protocol.
547
While we recognize that the IP
transition presents the possibility of improved call blocking that results from improved Caller ID,
548
robocalls present a current and significant problem for consumers. We take action today to encourage
increased use of call-blocking technology to help consumers, and see no need for delay. To be clear, we
do not require that carriers or other providers offer call blocking to consumers. While carriers and VoIP
providers are not required to offer call-blocking technology, our rules and policy do not prevent them
from offering or allowing the use of such technology.
163. We do, however, strongly encourage carriers and VoIP providers, as well as independent
call-blocking service providers, to develop protocols and technology so that PSAP calls and other
emergency calls are not blocked. We also do not offer a view on any specific call-blocking technology or
product. But the considerable interest in call blocking as a consumer self-help tool complements our
TCPA decisions that can only stop unwanted calls from those who are deterred by TCPA liability. Call-
blocking technology offers the possibility of stopping calls from those who seek to defraud consumers,
oftentimes specifically targeting vulnerable consumers. Our decision here gives consumers the right to
help protect themselves and seeks to thereby create a regulatory environment where such solutions can
grow and improve. While we do not at this time require carriers to offer consumers call-blocking tools,
we will continue to watch the development of such tools. We will also watch closely the steps carriers
and VoIP providers take to protect their customers from unwanted calls.
543
We recognize the concern of MRA that consumers who use blocking technology will not only block unlawful
robocalls but “will potentially block all manner of non-telemarketing telephone calls, including calls for survey,
opinion and marketing research purposes.” MRA Comments on NAAG Letter at 3.
544
Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 650 (1985) (Zauderer).
545
Nat’l Elec. Mfrs. Ass’n v. Sorrell, 272 F.3d 104, 113 (2d Cir. 2001); New York State Restaurant Ass’n. v. New
York City Bd. Of Health, 556 F.3d 114, 132 (2d Cir. 2009).
546
Milavetz Gallop & Milavetz v. United States, 130 S. Ct. 1324, 1339 (2010).
547
AT&T Comments on NAAG Letter at 7-8; USTelecom Comments on NAAG Letter at 13; see also MRA
Comments on NAAG Letter at 3.
548
See, e.g., AT&T Comments at 8 (describing industry efforts to address caller ID spoofing for VoIP, stating, for
example that “The IETF STIR Working Group has identified ways for attaching a secure identity to VoIP phone
calls, and it has developed requirements putting this security feature into place.”).
8038
Federal Communications Commission FCC 15-72
IV. PETITIONS FOR RULEMAKING
164. PACE filed its Petition as a Petition for Expedited Declaratory Ruling and/or Expedited
Rulemaking.
549
Because we have addressed Pace’s Petition on its merits as a Petition for Declaratory
Ruling, we need not consider it in its alternative as a Petition for Expedited Rulemaking.
165. ACA filed its Petition as a Petition for Rulemaking.
550
In it, ACA asks the Commission
to “initiate a rulemaking” to address four issues: “(1) confirm that not all predictive dialers are
categorically [autodialers]; (2) confirm that ‘capacity’ under the TCPA means present ability; (3) clarify
that prior express consent attaches to the person incurring a debt, and not the specific telephone number
provided by the debtor at the time a debt was incurred; and (4) establish a safe harbor for autodialed
‘wrong number’ non-telemarketing calls to wireless numbers.”
551
In this Declaratory Ruling and Order,
we have addressed these four issues and have provided clarification on each.
552
We, therefore, do not see
a need to grant ACA’s Petition for Rulemaking at this time. ACA’s Petition, accordingly, is denied.
V. ORDERING CLAUSES
166. For the reasons stated above, IT IS ORDERED, pursuant to sections 1-4 and 227 of the
Communications Act of 1934, as amended, 47 U.S.C. §§ 151-154, 227, and sections 1.2 and 64.1200 of
the Commission’s rules, 47 C.F.R. §§ 1.2, 64.1200, that the Petition for Expedited Declaratory Ruling and
Exemption filed by American Association of Healthcare Administrative Management in CG Docket No.
02-278 on October 21, 2014, IS GRANTED IN PART and OTHERWISE DENIED to the extent
indicated herein.
167. IT IS FURTHER ORDERED, pursuant to sections 1-4 and 227 of the Communications
Act of 1934, as amended, 47 U.S.C. §§ 151-154, 227, and sections 1.2 and 64.1200 of the Commission’s
rules, 47 C.F.R. §§ 1.2, 64.1200, that the Petition for Exemption filed by American Bankers Association
in CG Docket No. 02-278 on October 14, 2014, IS GRANTED to the extent indicated herein and
OTHERWISE DENIED.
168. IT IS FURTHER ORDERED, pursuant to sections 1-4 and 227 of the Communications
Act of 1934, as AMENDED, 47 U.S.C. §§ 151-154, 227, and sections 1.2 and 64.1200 of the
Commission’s rules, 47 C.F.R. §§ 1.2, 64.1200, that the Petition for Declaratory Ruling filed by the
Coalition of Mobile Engagement Providers CG Docket No. 02-278 on October 17, 2013 IS GRANTED
IN PART and OTHERWISE DENIED to the extent indicated herein.
169. IT IS FURTHER ORDERED, pursuant to sections 1-4 and 227 of the Communications
Act of 1934, as amended, 47 U.S.C. §§ 151-154, 227, and sections 1.2 and 64.1200 of the Commission’s
rules, 47 C.F.R. §§ 1.2, 64.1200, that the Petition for Declaratory Ruling filed by Consumer Bankers
Association in CG Docket No. 02-278 on September 19, 2014, IS DENIED.
170. IT IS FURTHER ORDERED, pursuant to sections 1-4 and 227 of the Communications
Act of 1934, as AMENDED, 47 U.S.C. §§ 151-154, 227, and sections 1.2 and 64.1200 of the
Commission’s rules, 47 C.F.R. §§ 1.2, 64.1200, the Emergency Petition for Special Temporary Relief
filed by the Direct Marketing Association in CG Docket No. 02-278 on October 17, 2013, IS DENIED.
171. IT IS FURTHER ORDERED, pursuant to sections 1-4 and 227 of the Communications
Act of 1934, as AMENDED, 47 U.S.C. §§ 151-154, 227, and sections 1.2 and 64.1200 of the
549
See note 7, supra.
550
See note 9, supra.
551
ACA Petition at 1-2.
552
See supra paras. 10-24 (providing clarification on the definition of “autodialer”), 12-20 (providing clarification
on the meaning of “capacity”), 73-97 (providing clarification on the meaning of “prior express consent”), and 73-97
(discussing autodialed calls to reassigned wireless numbers and other “wrong number” calls to wireless numbers).
8039
Federal Communications Commission FCC 15-72
Commission’s rules, 47 C.F.R. §§ 1.2, 64.1200, the Petition for Forbearance filed by the Direct Marketing
Association in CG Docket No. 02-278 on October 17, 2013, IS GRANTED IN PART and OTHERWISE
DENIED to the extent indicated herein.
172. IT IS FURTHER ORDERED, pursuant to sections 1-4 and 227 of the Communications
Act of 1934, as amended, 47 U.S.C. §§ 151-154, 227, and sections 1.2 and 64.1200 of the Commission’s
rules, 47 C.F.R. §§ 1.2, 64.1200, that the Petition for Expedited Clarification and Declaratory Ruling filed
by Paul D. S. Edwards in CG Docket No. 02-278 on January 12, 2009, IS DENIED.
173. IT IS FURTHER ORDERED, pursuant to sections 1-4 and 227 of the Communications
Act of 1934, as amended, 47 U.S.C. §§ 151-154, 227, and sections 1.2 and 64.1200 of the Commission’s
rules, 47 C.F.R. §§ 1.2, 64.1200, that the Petition for Expedited Declaratory Ruling filed by Milton H.
Fried, Jr., and Richard Evans in CG Docket No. 02-278 on May 27, 2014 IS GRANTED to the extent
indicated herein and OTHERWISE DENIED.
174. IT IS FURTHER ORDERED, pursuant to sections 1-4 and 227 of the Communications
Act of 1934, as amended, 47 U.S.C. §§ 151-154, 227, and sections 1.2 and 64.1200 of the Commission’s
rules, 47 C.F.R. §§ 1.2, 64.1200, that the Petition for Expedited Declaratory Ruling filed by Glide Talk,
Ltd., in CG Docket No. 02-278 on October 28, 2013, IS DENIED.
175. IT IS FURTHER ORDERED, pursuant to sections 1-4 and 227 of the Communications
Act of 1934, as amended, 47 U.S.C. §§ 151-154, 227, and sections 1.2 and 64.1200 of the Commission’s
rules, 47 C.F.R. §§ 1.2, 64.1200, that the Petition for Expedited Declaratory Ruling and Exemption filed
by Global Tel*Link Corporation in CG Docket No. 02-278 on March 4, 2010, IS GRANTED IN PART
and OTHERWISE DENIED or DISMISSED to the extent indicated herein.
176. IT IS FURTHER ORDERED, pursuant to sections 1-4 and 227 of the Communications
Act of 1934, as amended, 47 U.S.C. §§ 151-154, 227, and sections 1.2 and 64.1200 of the Commission’s
rules, 47 C.F.R. §§ 1.2, 64.1200, that the request for clarification filed by National Association of
Attorneys General in CG Docket No. 02-278 on September 9, 2014, IS GRANTED to the extent indicated
herein and OTHERWISE DENIED.
177. IT IS FURTHER ORDERED, pursuant to sections 1-4 and 227 of the Communications
Act of 1934, as amended, 47 U.S.C. §§ 151-154, 227, and sections 1.2 and 64.1200 of the Commission’s
rules, 47 C.F.R. §§ 1.2, 64.1200, that the Petition for Expedited Declaratory Ruling and/or Expedited
Rulemaking filed by Professional Association for Customer Engagement in CG Docket No. 02-278 on
October 18, 2013, IS DENIED IN PART and OTHERWISE DISMISSED to the extent indicated herein.
178. IT IS FURTHER ORDERED, pursuant to sections 1-4 and 227 of the Communications
Act of 1934, as AMENDED, 47 U.S.C. §§ 151-154, 227, and sections 1.2 and 64.1200 of the
Commission’s rules, 47 C.F.R. §§ 1.2, 64.1200, that the Petition for Declaratory Ruling filed by Retail
Industry Leaders Association in CG Docket No. 02-278 on December 30, 2013, IS GRANTED IN PART
and OTHERWISE DISMISSED to the extent indicated herein.
179. IT IS FURTHER ORDERED, pursuant to sections 1-4 and 227 of the Communications
Act of 1934, as amended, 47 U.S.C. §§ 151-154, 227, and sections 1.2 and 64.1200 of the Commission’s
rules, 47 C.F.R. §§ 1.2, 64.1200, that the Petition for Expedited Clarification and Declaratory Ruling filed
by Revolution Messaging in CG Docket No. 02-278 on January 19, 2012, IS GRANTED to the extent
indicated herein and OTHERWISE DENIED.
180. IT IS FURTHER ORDERED, pursuant to sections 1-4 and 227 of the Communications
Act of 1934, as amended, 47 U.S.C. §§ 151-154, 227, and sections 1.2 and 64.1200 of the Commission’s
rules, 47 C.F.R. §§ 1.2, 64.1200, that the Petition for Expedited Declaratory Ruling filed by Rubio’s
Restaurant, Inc., in CG Docket No. 02-278 on August 15, 2014, IS DENIED.
181. IT IS FURTHER ORDERED, pursuant to sections 1-4 and 227 of the Communications
Act of 1934, as amended, 47 U.S.C. §§ 151-154, 227, and sections 1.2 and 64.1200 of the Commission’s
rules, 47 C.F.R. §§ 1.2, 64.1200, that the Petition for Expedited Declaratory Ruling filed by Santander
8040
Federal Communications Commission FCC 15-72
Consumer USA, Inc., in CG Docket No. 02-278 on July 10, 2014, IS DENIED.
182. IT IS FURTHER ORDERED, pursuant to sections 1-4 and 227 of the Communications
Act of 1934, as amended, 47 U.S.C. §§ 151-154, 227, and sections 1.2 and 64.1200 of the Commission’s
rules, 47 C.F.R. §§ 1.2, 64.1200, that the Petition for Expedited Declaratory Ruling filed by Stage Stores,
Inc., in CG Docket No. 02-278 on June 4, 2014, IS DENIED.
183. IT IS FURTHER ORDERED, pursuant to sections 1-4 and 227 of the Communications
Act of 1934, as amended, 47 U.S.C. §§ 151-154, 227, and sections 1.2 and 64.1200 of the Commission’s
rules, 47 C.F.R. §§ 1.2, 64.1200, that the Petition for Expedited Declaratory Ruling and Clarification filed
by TextMe, Inc., in CG Docket No. 02-278 on March 18, 2014, IS GRANTED IN PART and
OTHERWISE DENIED to the extent indicated herein.
184. IT IS FURTHER ORDERED, pursuant to sections 1-4 and 227 of the Communications
Act of 1934, as amended, 47 U.S.C. §§ 151-154, 227, and sections 1.2 and 64.1200 of the Commission’s
rules, 47 C.F.R. §§ 1.2, 64.1200, that the Petition for Expedited Declaratory Ruling filed by United
Healthcare Services, Inc., in CG Docket No. 02-278 on January 16, 2014, IS DENIED.
185. IT IS FURTHER ORDERED, pursuant to sections 1-4 and 227 of the Communications
Act of 1934, as amended, 47 U.S.C. §§ 151-154, 227, and sections 1.2 and 64.1200 of the Commission’s
rules, 47 C.F.R. §§ 1.2, 64.1200, that the Petition for Expedited Declaratory Ruling filed by YouMail,
Inc., in CG Docket No. 02-278 on April 19, 2013, IS GRANTED IN PART and OTHERWISE
DISMISSED to the extent indicated herein.
186. IT IS FURTHER ORDERED, pursuant to sections 1-4 and 227 of the Communications
Act of 1934, as amended, 47 U.S.C. §§ 151-154, 227, and sections 1.2 and 64.1200 of the Commission’s
rules, 47 C.F.R. §§ 1.2, 64.1200, that the Petition for Expedited Declaratory Ruling filed by 3G Collect,
Inc., and 3G Collect LLC, in CG Docket No. 02-278 on October 28, 2011, IS GRANTED IN PART and
OTHERWISE DISMISSED to the extent indicated herein.
187. IT IS FURTHER ORDERED, pursuant to sections 1-4, 201, 227, and 403 of the
Communications Act of 1934, as amended, 47 U.S.C. §§ 151-154, 201, 227, and 403,and sections 1.2 and
64.1200 of the Commission’s rules, 47 C.F.R. §§ 1.2, 64.1200, that the Petition for Rulemaking filed by
ACA International in CG Docket No. 02-278 on February 11, 2014, IS DENIED.
188. IT IS FURTHER ORDERED that this Declaratory Ruling and Order shall be effective
upon release.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
8041
Federal Communications Commission FCC 15-72
APPENDIX A
List of Commenters on American Association of Healthcare Administrative Management Petition
The following parties filed comments in response to the December 17, 2014, Public Notice (CG Docket
02-278):
Commenter Abbreviation
American Association of Healthcare Administration Management AAHAM
National Association of Chain Drug Stores NACDS
Nebraska Hospital Association NHA
Peter Panagakis Panagakis
Pharmaceutical Care Management Association PCMA
Rite Aid Rite Aid
Joe Shields Shields
Silver Users Association SUA
Virginia Chapter of AAHAM Virginia
Waverly Health Center Waverly
One hundred ninety-one individuals also filed comments regarding this petition, generally in the nature of
one of three form letters.
* filing both comments and reply comment (bold - reply comments only).
8042
Federal Communications Commission FCC 15-72
APPENDIX B
List of Commenters on American Bankers Association Petition
The following parties filed comments in response to the November 6, 2014, Public Notice (CG Docket
02-278):
Commenter Abbreviation
American Bankers Association ABA
American Financial Services Association AFSA
Robert Biggerstaff Biggerstaff
California and Nevada Credit Union Leagues Leagues
Consumer Bankers Association CBA
Credit Union National Association CUNA
Financial Services Roundtable FSR
First Bank First Bank
First Tennessee Bank National Association Tennessee
Future of Privacy Forum FPF
Identity Theft Council Identity
Independent Bankers Association of Texas IBAT
International Bancshares Corporation IBC
Iowa Credit Union League ICUL
Michelle Lathrop Lathrop
MasterCard Incorporated MasterCard
National Consumer Law Center, National Association of NCLC et al
Consumer Advocates, Americans for Financial Reform,
Consumer Action, Consumers Union, Public Citizen,
U.S. Public Interest Research Group*
Noble Systems Corporation Noble
Online Trust Alliance OTA
Scott D. Owens Owens
PSCU PSCU
Gerald Roylance Roylance
SAFE Credit Union SAFE
Joe Shields* Shields
The Internet Association Internet
U.S. Chamber of Commerce Chamber
Visa, Inc. Visa
* filing both comments and reply comment (bold - reply comments only).
8043
Federal Communications Commission FCC 15-72
APPENDIX C
List of Commenters on Coalition of Mobile Engagement Providers Petition
The following parties filed comments in response to the November 1, 2013, Public Notice (CG Docket
02-278):
Commenter Abbreviation
American Financial Services Association AFSA
Robert Biggerstaff* Biggerstaff
Steven Brachtenbach Brachtenbach
Brand Activation Association, Inc. BAA
Coalition of Mobile Engagement Providers * Coalition
Jay Connor Connor
CTIA-The Wireless Association CTIA
Marketing Arm’s Wireless MAW
mBlox Incorporated mBlox
Mr. Alan’s Elite MAE
Mobile Marketing Association MMA
MobileStorm, Inc. MobileStorm
National Association of Broadcasters NAB
National Retail Federation NRF
Neustar, Inc. Neustar
Phunware Phunware
William Raney Raney
Retail Industry Leaders Association RILA
Rhode Island Broadcasters Association RIBA
Gerald Roylance Roylance
Virginia Association of Broadcasters, Ohio Association of VBA
Broadcasters, North Carolina Association of Broadcasters
Kristi Weeden Weeden
* filing both comments and reply comment (bold - reply comments only).
8044
Federal Communications Commission FCC 15-72
APPENDIX D
List of Commenters on Consumer Bankers Association Petition
The following parties filed comments in response to the October 17, 2014, Public Notice (CG Docket 02-
278):
Commenter Abbreviation
ACA International* ACA
American Bankers Association ABA
American Financial Services Association AFSA
Robert Biggerstaff Biggerstaff
Computer & Communications Industry Association CCIA
Consumer Bankers Association* CBA
Financial Services Roundtable FSR
Genesys Communications Laboratories, Inc.* Genesys
Vincent Lucas Lucas
National Consumer Law Center, National Association of NCLC et al
Consumer Advocates, Americans for Financial Reform,
Consumer Action, Consumers Union, Public Citizen,
U.S. Public Interest Research Group*
National Rural Electric Cooperative Association NRECA
Noble Systems Corporation Noble
Santander Consumer USA, Inc. Santander
Joe Shields* Shields
Stage Stores, Inc. Stage
United Healthcare Services, Inc. United
U.S. Chamber of Commerce Chamber
Wells Fargo* Wells Fargo
* filing both comments and reply comment (bold - reply comments only).
8045
Federal Communications Commission FCC 15-72
APPENDIX E
List of Commenters on Direct Marketing Association Petition
The following parties filed comments in response to the November 1, 2013, Public Notice (CG Docket
02-278):
Commenter Abbreviation
American Financial Services Association AFSA
Steven Brachtenbach Brachtenbach
Brand Activation Association, Inc. BAA
Marketing Arm’s Wireless MAW
Mr. Alan’s Elite MAE
National Association of Broadcasters NAB
Phunware Phunware
Rhode Island Broadcasters Association RIBA
Gerald Roylance Roylance
Virginia Association of Broadcasters, Ohio Association of VBA
Broadcasters, North Carolina Association of Broadcasters
Kristi Weeden Weeden
Michael Worsham Worsham
* filing both comments and reply comment (bold - reply comments only).
8046
Federal Communications Commission FCC 15-72
APPENDIX F
List of Commenters on Paul D. S. Edwards Petition
The following parties filed comments in response to the March 3, 2009, Public Notice (CG Docket 02-
278):
Commenter Abbreviation
ACA International* ACA
Allied Global Holdings, Inc. Allied
American Bankers Association ABA
American Financial Services Association AFSA
American Revenue Management ARM
Robert Biggerstaff* Biggerstaff
Amina Brandt Brandt
William Brush Brush
Robert Bulmash Bulmash
Catherine Bushman Bushman
Chris Carrington Carrington
Consumer Bankers Association CBA
Jonnie Crivello Crivello
DCS Financial, Inc. DCSF
Jeff Delaney Delaney
Nick Dey Dey
Direct Marketing Association DMA
FMA Alliance, Ltd. FMA
Fresno Credit Bureau Fresno
Ramona Fryer Fryer
Levi Gillespie Gillespie
Kenlyn T. Gretz Gretz
Arvid Grinbergs Grinbergs
Jim Happe Happe
David Harvey Harvey
Matt Heller Heller
Randal Hisatomi Hisatomi
Brian House House
InfoCision Management Corporation InfoCision
Jae Kim Kim
Mike Kirte Kirte
David Kneedy Kneedy
Tom Lane Lane
Brooke Larsen Larsen
Gary Long Long
Scott Maddern Maddern
Merchants Credit Association Merchants
Mid Continent Credit Services MCCS
Brian Moore Moore
National Council of Higher Education Loan Programs NCHELP
Recovery One Recovery
Linda O. Richards Richards
Bryan Richardson Richardson
Gerald Roylance* Roylance
8047
Federal Communications Commission FCC 15-72
Carol Schemo Schemo
Don Schlosser Schlosser
Kendall Smith Smith
Jamie Snyder Snyder
SoundBite Communications SoundBite
Jake Sparling Sparling
Sprint Nextel Corporation Sprint Nextel
Jimmy A. Sutton Sutton
The Alarm Industry Communications Committee Alarm
The CBE Group, Inc.* CBE
United Services Automobile Association USAA
United States Telecom Association USTelecom
Dan Voss Voss
Jendi Watson Watson
Bruce Werner Werner
West Asset Management, Inc. West
Lori Wiggen Wiggen
Michael C. Worsham Worsham
One hundred seventy individuals also filed comments regarding this petition.
* filing both comments and reply comment (bold - reply comments only).
8048
Federal Communications Commission FCC 15-72
APPENDIX G
List of Commenters on Milton H. Fried, Jr., and Richard Evans Petition
The following parties filed comments in response to the July 9, 2014, Public Notice (CG Docket 02-278):
Commenter Abbreviation
Computer & Communications Industry Association CCIA
Crunch of San Diego, LLC Crunch
ExactTarget, Inc. ExactTarget
Noble Systems Corp. Noble
Path, Inc. Path
Gerald Roylance Roylance
Joe Shields* Shields
In addition, several individual consumers filed brief comments supporting the petition.
* filing both comments and reply comment (bold - reply comments only).
8049
Federal Communications Commission FCC 15-72
APPENDIX H
List of Commenters on Glide Talk, Ltd., Petition
The following parties filed comments in response to the December 2, 2013, Public Notice (CG Docket
02-278):
Commenter Abbreviation
American Financial Services Association AFSA
Anthony Coffman Coffman
Communication Innovators CI
Dialing Services, LLC* Dialing Services
Glide Talk, Ltd. Glide
GroupMe, Inc. GroupMe
Noble Systems Corporation Noble
Path, Inc. Path
Joe Shields* Shields
Twilio, Inc. Twilio
* filing both comments and reply comment (bold - reply comments only).
8050
Federal Communications Commission FCC 15-72
APPENDIX I
List of Commenters on Global Tel*Link Corporation Petition
The following parties filed comments in response to the June 15, 2010, Public Notice (CG Docket 02-
278):
Commenter Abbreviation
Robert Biggerstaff Biggerstaff
Robert H. Braver Braver
Cargo Airline Association Cargo
Global Tel*Link Corporation GTL
Thomas Pechnik Pechnik
Gerald Roylance* Roylance
Securus Technologies, Inc. Securus
United Parcel Service UPS
Michael C. Worsham Worsham
* filing both comments and reply comment (bold - reply comments only).
8051
Federal Communications Commission FCC 15-72
APPENDIX J
List of Commenters on National Association of Attorneys General Letter
The following parties filed comments in response to the November 24, 2014, Public Notice (CG Docket
02-278, WC Docket No. 07-135):
Commenter Abbreviation
AT&T AT&T
Robert Biggerstaff Biggerstaff
Call Control Call Control
Consumers Union Consumers Union
CTIA-The Wireless Association CTIA
Federal Trade Commission FTC Staff
Global Tel*Link GTL
InCharge Systems, Inc. InCharge
Vincent Lucas Lucas
Marketing Research Association MRA
Numbercorp Numbercorp
NTCA-The Rural Broadband Association NTCA
Pindrop Security Pindrop
Telephone Science Corporation TSC
TracFone Wireless, Inc. TracFone
Trading Advantage, LLC Trading Advantage
United States Telecom Association* USTelecom
Verizon Verizon
ZipDX ZipDX
In addition, 388 individual consumers filed brief comments regarding the letter.
* filing both comments and reply comment (bold - reply comments only).
8052
Federal Communications Commission FCC 15-72
APPENDIX K
List of Commenters on Professional Association for Customer Engagement Petition
The following parties filed comments in response to the November 19, 2013, Public Notice (CG Docket
02-278):
Commenter Abbreviation
ACA International* ACA
American Financial Services Association AFSA
American Insurance Association AIA
Aspect Software, Inc. Aspect
BetterWRX Better
Robert Biggerstaff* Biggerstaff
Communication Innovators CI
Jay Connor Connor
Covington & Burling, LLP Covington
DialAmerica Marketing, Inc. DialAmerica
DIRECTV, LLC DIRECTV
Tammy Glover Fowler Fowler
Glide Talk, Ltd. Glide
Global Connect LLC Global
Heritage Company Heritage
InfoCision Management Corporation, Inc. InfoCision
iPacesetters, LLC iPacesetters
National Consumer Law Center NCLC
National Council of Higher Education Resources NCHER
Nicor Energy Services Company* Nicor
Noble Systems Corporation* Noble
Professional Association for Customer Engagement PACE
Results Companies, LLC Results
Gerald Roylance Roylance
Twilio, Inc. Twilio
U.S. Chamber of Commerce Chamber
Michael C. Worsham Worsham
YouMail, Inc. YouMail
* filing both comments and reply comment (bold - reply comments only).
8053
Federal Communications Commission FCC 15-72
APPENDIX L
List of Commenters on Retail Industry Leaders Association Petition
The following parties filed comments in response to the January 22, 2014, Public Notice (CG Docket 02-
278):
Commenter Abbreviation
Stewart Abramson Abramson
American Bankers Association ABA
American Financial Services Association AFSA
Robert Biggerstaff Biggerstaff
Brandtone, Inc. Brandtone
CTIA-The Wireless Association CTIA
Brian Moore Moore
National Association of Broadcasters* NAB
National Association of Chain Drug Stores NACDS
National Federation of Independent Business NFIB
Retail Industry Leaders Association* RILA
Gerald Roylance Roylance
Joe Shields Shields
Vibes Media, LLC Vibes
* filing both comments and reply comment (bold - reply comments only).
8054
Federal Communications Commission FCC 15-72
APPENDIX M
List of Commenters on Revolution Messaging Petition
The following parties filed comments in response to the October 23, 2012, Public Notice (CG Docket 02-
278):
Commenter Abbreviation
Stewart Abramson Abramson
AFL-CIO AFL
Americans in Contact PAC American PAC
Robert Biggerstaff Biggerstaff
ccAdvertising* ccAdvertising
Center for Democracy & Technology CDT
CTIA-The Wireless Association CTIA
International Brotherhood of Teamsters IBT
PocketSpammers.com Pocket Spammers
Revolution Messaging RM
Rock the Vote RTV
Gerald Roylance* Roylance
Joe Shields* Shields
Voter Participation Center VPC
In addition, several individual consumers filed brief comments supporting the petition.
* filing both comments and reply comment (bold - reply comments only).
8055
Federal Communications Commission FCC 15-72
APPENDIX N
List of Commenters on Rubio’s Restaurant, Inc., Petition
The following parties filed comments in response to the August 25, 2014, Public Notice (CG Docket 02-
278):
Commenter Abbreviation
ACA International ACA
National Consumer Law Center NCLC
National Council of Nonprofits Nonprofits
Gerald Roylance Roylance
Joe Shields* Shields
Twitter, Inc. Twitter
United Healthcare Services, Inc. United
U.S. Chamber of Commerce and U.S. Chamber Institute for Chamber
Legal Reform
Wells Fargo Wells Fargo
* filing both comments and reply comment (bold - reply comments only).
8056
Federal Communications Commission FCC 15-72
APPENDIX O
List of Commenters on Santander Consumer USA, Inc., Petition
The following parties filed comments in response to the August 1, 2014, Public Notice (CG Docket 02-
278):
Commenter Abbreviation
American Financial Services Association AFSA
Computer & Communications Industry Association CCIA
Mortgage Bankers Association MBA
Gerald Roylance Roylance
Santander Consumer USA, Inc. Santander
Joe Shields Shields
* filing both comments and reply comment (bold - reply comments only).
8057
Federal Communications Commission FCC 15-72
APPENDIX P
List of Commenters on Stage Stores, Inc., Petition
The following parties filed comments in response to the July 9, 2014, Public Notice (CG Docket 02-278):
Commenter Abbreviation
American Financial Services Association AFSA
Computer & Communications Industry Association* CCIA
Genesys Communications Laboratories, Inc. Genesys
National Consumer Law Center NCLC
Noble Systems Corporation Noble
Gerald Roylance Roylance
Joe Shields* Shields
Stage Stores, Inc. Stage
Twitter, Inc. Twitter
United Healthcare Services, Inc. United
Wells Fargo Wells Fargo
* filing both comments and reply comment (bold - reply comments only).
8058
Federal Communications Commission FCC 15-72
APPENDIX Q
List of Commenters on TextMe, Inc., Petition
The following parties filed comments in response to the April 7, 2014, Public Notice (CG Docket 02-
278):
Commenter Abbreviation
Robert Biggerstaff Biggerstaff
Communication Innovators CI
Computer & Communications Industry Association CCIA
Noble Systems Corporation Noble
Gerald Roylance* Roylance
Joe Shields Shields
Al Smith Smith
TextMe, Inc. TextMe
The Internet Association Internet
Wireless Research Services Wireless
* filing both comments and reply comment (bold - reply comments only).
8059
Federal Communications Commission FCC 15-72
APPENDIX R
List of Commenters on United Healthcare Services, Inc., Petition
The following parties filed comments in response to the February 6, 2014, Public Notice (CG Docket 02-
278):
Commenter Abbreviation
American Bankers Association ABA
American Financial Services Association AFSA
America’s Health Insurance Plans AHIP
Divesh Angula Angula
Bruce Baird Baird
Bron Barry Barry
Alixson Bell Bell
Jim Besso Besso
Robert Biggerstaff Biggerstaff
William Brush Brush
Christopher Carrington Carrington
Ceannate Corp, Coalition of Higher Education Assistance Ceannate
Organizations, National Association of College and
University Business Officers, and National Council of
Higher Education Resources
U.S. Chamber of Commerce* Chamber
Coalition of Higher Education Assistance Organizations COHEAO
Comcast Corporation Comcast
C.O.P.S. Monitoring COPS
CTIA-The Wireless Association CTIA
DIRECTV, LLC DIRECTV
Dominion Enterprises of Virginia Dominion
Manuela P. Gann Gann
Denise Gillis Gillis
Michael Jacobs Jacobs
Catherine Jacola Jacola
Vincent Lucas Lucas
Nora Martinez Martinez
Diana Mey* Mey
Brian Moore Moore
National Association of Industrial Bankers NAIB
National Consumer Law Center NCLC
Noble Systems Corporation Noble
Jeremy Parker Parker
Claude Remboski C. Remboski
Pamela Remboski P. Remboski
Bryan Richardson Richardson
Lynn Ridenour Ridenour
Gerald Roylance* Roylance
Deb Schlier Schlier
Joe Shields* Shields
Leslie F. Smith Smith
Rebecca Standish Standish
William Studley Studley
8060
Federal Communications Commission FCC 15-72
Student Loan Servicing Alliance SLSA
Jimmy Sutton Sutton
Time Warner Cable, Inc. TWC
United Healthcare Services, Inc. United
* filing both comments and reply comment (bold - reply comments only).
8061
Federal Communications Commission FCC 15-72
APPENDIX S
List of Commenters on YouMail, Inc., Petition
The following parties filed comments in response to the June 25, 2013, Public Notice (CG Docket 02-
278):
Commenter Abbreviation
American Financial Services Association AFSA
Robert Biggerstaff* Biggerstaff
CallFire, Inc. CallFire
Phil Charvat Charvat
Communication Innovators CI
CTIA-The Wireless Association CTIA
Glide Talk, Ltd. Glide
Megan Gold* Gold
GroupMe, Inc.* GroupMe
Nicor Energy Services, Inc. Nicor
Gerald Roylance* Roylance
Joe Shields* Shields
YouMail, Inc. YouMail
* filing both comments and reply comment (bold - reply comments only).
8062
Federal Communications Commission FCC 15-72
APPENDIX T
List of Commenters on 3G Collect Petition
The following parties filed comments in response to the October 23, 2012, Public Notice (CG Docket 02-
278):
Commenter Abbreviation
Stewart Abramson Abramson
AT&T Corp. ATT
AT&T Services, Inc. AT&T
Robert Biggerstaff* Biggerstaff
Robert H. Braver Braver
Philip J. Charvat Charvat
Global Tel*Link Corporation GTL
Pay Tel Communications PayTel
Gerald Roylance* Roylance
Securus Technologies, Inc Securus
Joe Shields* Shields
3G Collect, Inc. 3G Collect
* filing both comments and reply comment (bold - reply comments only).
8063
Federal Communications Commission FCC 15-72
APPENDIX U
List of Commenters on ACA International Petition
The following parties filed comments in response to the February 21, 2014, Public Notice (Report No.
2999):
Commenter Abbreviation
A Better 401k Plan, Inc. 401k
ACA International ACA
Affiliated Group, Inc. Affiliated
American Association of Healthcare Administrative Management AAHAM
American Bankers Association ABA
American Financial Services Association AFSA
Robert Biggerstaff Biggerstaff
Boom 702 Boom
Ceannate Corp, Coalition of Higher Education Assistance Ceannate
Organizations, National Association of College and
University Business Officers, and National Council of
Higher Education Resources
Clark County Collection Service, LLC Clark County
Coalition of Higher Education Assistance Organizations COHEAO
Comcast Corporation Comcast
Communication Innovators CI
County of San Diego’s Office of Revenue and Recovery San Diego
Credit Bureau Data, Inc. CDB
Global Connect Global
Gulf Coast Collect Bureau Gulf Coast
Hilton Worldwide Hilton
Brian Melendez Melendez
Tony Muscato Muscato
National Association of Industrial Bankers NAIB
National Association of Retail Collection Attorneys NARCA
Portfolio Recovery Associates, LLC PRA
Professional Association for Customer Engagement PACE
Christopher S. Publow Publow
Christopher Rickman Rickman
Gerald Roylance Roylance
Santander Consumer USA, Inc. Santander
Joe Shields Shields
Student Loan Servicing Alliance SLSA
Time Warner Cable, Inc. TWC
United Healthcare Services, Inc. United
U.S. Chamber of Commerce Chamber
Wells Fargo Wells Fargo
8064
Federal Communications Commission FCC 15-72
APPENDIX V
List of Commenters on Communication Innovators Petition
The following parties filed comments in response to the October 16, 2012, Public Notice (CG Docket 02-
278):
Commenter Abbreviation
Stewart Abramson Abramson
American Bankers Association and ABA/CBA
Consumer Bankers Association
American Financial Services Association AFSA
Robert Biggerstaff Biggerstaff
Robert Bulmash Bulmash
CenturyLink CenturyLink
Philip J. Charvat Charvat
Communication Innovators CI
Direct Marketing Association DMA
DIRECTV, LLC DIRECTV
Edison Electric Institute/American Gas Association EEI/AGA
David Elchert Elchert
Mark Fitzhenry Fitzhenry
Global Connect LLC Global Connect
Global Tel*Link Corporation GTL
Dave Jensen Jensen
Phil Kempthorne Kempthorne
Albert H. Kirby Kirby
Sherry Lary Lary
Marketing Research Association MRA
Andy Mckevitz Mckevitz
National Association of Attorneys General NAAG
National Association of College University Business Officers/ NACUBO
Coalition of Higher Education Assistance Organizations
National Council of Higher Education Resources NCHER
Nicor Energy Services Company Nicor
Noble Systems Corporation Noble
Portfolio Recovery Associates, LLC PRA
Gerald Roylance* Roylance
Rosanna Santiago Santiago
Service Employees International Union SEIU
Joe Shields* Shields
Jimmy Sutton Sutton
U.S. Chamber of Commerce Chamber
Varolii Corporation Varolii
Michael Worsham Worsham
* filing both comments and reply comment (bold - reply comments only).
8065
Federal Communications Commission FCC 15-72
STATEMENT OF
CHAIRMAN TOM WHEELER
Re: In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of
1991, CG Docket No. 02-278, WC Docket No. 07-135
The American public has asked us – repeatedly – to do something about unwanted robocalls.
Today we help Americans hang up on nuisance calls.
We use our telephones – increasingly, our indispensable smart phones – to talk to family and
friends, to take care of business, to make plans, to share good news, and sometimes, when things don’t go
well, to make a complaint. Over the past several years, hundreds of thousands of consumers have made
their voices heard by complaining to the Commission about unwanted telephone calls – calls they didn’t
ask for, that they don’t want, and that they can’t stop. Today, we help them gain some of their privacy
back.
Complaints under the Telephone Consumer Protection Act (TCPA), the law that makes unwanted
robocalls and texts illegal, are together the largest complaint category we have at the Commission. Last
year alone, we received more than 215,000 such complaints. The data reveal the scale of the robocall
problem. The individual stories behind them reveal the costs.
Consider Brian, who writes: “Robocalls are a daily occurrence on both my landline, and
increasingly, on my mobile number. These interruptions impact my productivity. Each call takes me off
task and further time is lost trying to pick up where I left off when the interruption occurred. . . . We The
Consumers pay for these telephony services; these are our phones and we deserve to be allowed to control
who calls us.”
Or how about Peggy, who writes: “I live in a large home and have many medical issues . . . .
[T]hese robocalls . . . cause me to stress out because I can’t get to the phone . . . . Simply put, it’s
stalking. . . . It’s more than just annoying, it’s unethical. . . . They are invading my privacy, period.”
And it’s not just calls, it’s text messages too. One consumer told us they received 4,700
unwanted texts over a 6-month period.
Our vehicle for helping consumers today is resolving an unprecedented number of requests for
clarification. We rule on 21 separate matters that collectively empower consumers to take back control of
their phones. These rulings have a simple concept: you are the decision maker, not the callers.
For the first time, we clarify that there is no legal reason carriers shouldn’t offer their customers
popular robocall-blocking solutions, so that consumers can use market-based approaches to stop
unwanted calls. We also clarify that callers cannot skirt their obligation to get a consumer’s consent
based on changes to their calling equipment or merely by calling from a list of numbers. We make it
clear that it should be easy for consumers to say “no more” even when they’ve given their consent in the
past.
And if you have the bad luck of inheriting a wireless number from someone who wanted all types
of robocalls, we have your back. We make it clear first that callers have a number of tools to detect that
the number has changed hands and that they should not robocall you, and we provide the caller one single
chance to get it wrong before they must get it right. This is critical because we have heard from
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Federal Communications Commission FCC 15-72
consumers that getting stuck with a reassigned number can lead to horrible consequences. One consumer
received 27,809 unsolicited text messages over 17 months to one reassigned number, despite their
requests to stop the texts.
Some argue that we have not updated the TCPA to reflect modern calling and consumer
expectations in an increasingly mobile-phone world, and this hurts businesses and other callers. Quite the
contrary: we provide the clarifications that responsible businesses need to responsibly use robocalling
equipment. Indeed, we interpret the TCPA in a commonsense way that benefits both callers and
consumers. Exhibit A is that we clear the way for time-sensitive calls about consumer healthcare and
bank accounts, so that consumers can get the information as quickly as possible. With important
conditions on the number of calls and opt-out ability, we prove that both consumers and businesses can
win under the TCPA.
We all love our phones, and we now carry them wherever we go. Today, we give consumers
their peace back. It’s simple: consumers should be able to make the decision about whether they receive
automated calls. If they want them, they can consent. And if they don’t consent, they should be left
alone.
Thank you to my colleagues for their excellent input on this item, and for sending a clear message
that this Commission will continue to act on behalf of consumers.
And thank you to our Consumer and Governmental Affairs Bureau for their hard work on behalf
of consumers – and for the diligent efforts of the Commission staff who assisted CGB with this item.
8067
Federal Communications Commission FCC 15-72
STATEMENT OF
COMMISSIONER MIGNON CLYBURN
Re: In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of
1991, CG Docket No. 02-278, WC Docket No. 07-135
Today, the Commission responds to 21 petitions by a number of companies and trade associations
for relief and clarification on compliance with the Telephone Consumer Protection Act. “Robocalls,” or
pre-recorded messages delivered by a computerized autodialer, which are covered by the TCPA, are the
subject of the highest number of complaints received at the Commission. Our record clearly demonstrates
that just as companies are aggressively using these autodialers to reach consumers in a lawful manner,
consumer advocates (including Members of the Legislative Branch) are – with equal vigor – expressing
concern about the persistence of high volumes of unwanted communications.
I am pleased that this Declaratory Ruling makes clear that we will maintain the consumer
protections the Act intended. I understand that many companies feel that this ruling does not go far
enough in delineating exactly how far and, within what guidelines a business may communicate with
consumers using autodialer technology. I believe, however, that by reaffirming our broad interpretation
of the definition of “autodialer,” and by affirming our commitment to Congressional intent, we will
further incentivize businesses to take the necessary steps to obtain prior consent when it comes to these
communications.
The Commission is striking a difficult, but necessary balance with this item. Over the course of
this proceeding, my office has received significant feedback from companies that are trying to reach
consumers who gave prior consent to be contacted, but then that consent is effectively revoked when that
person’s number is reassigned. I am sympathetic to the challenges these companies face since the
absence of a comprehensive database of reassigned phone numbers may be an issue. I also appreciate
how the Commission has attempted to provide some buffer for companies acting in good faith, by
allowing them one call, post reassignment, in order to affirm any number reassignment. But I would like
to see more.
I am not going so far as to mandate that any provider participate in maintenance of a database of
reassigned numbers, however, I would encourage voluntary participation by all providers in some type of
comprehensive database for reassigned numbers. Another option suggested in the record, that might have
merit, would be that carriers establish a minimum time period before reassigning numbers.
Another issue raised is the limited “free to end user” call exemptions we provide here, today, in
the cases of exigent notifications regarding financial services and healthcare matters. These exemptions
ensure that consumers do not suffer dramatic harm to their personal or financial health and security
because of lack of access to timely alerts. Even so, I agree with commenters who are concerned, that
even these alerts could annoy consumers who have not provided prior consent. So, I believe the required
immediate opt out mechanisms and the limited number of calls permitted balance the need for urgent
information with the risk of intrusion.
Finally, I believe that the decision to provide the clarity requested by thirty-nine state attorneys
general is a win. The Commission finds no legal barrier to carriers wishing to offer their customers
access to consumer call-blocking tools in this ruling. And providing consumers with tools that empower
them to take control over the communications they receive is consistent with the intent of TCPA and is
exactly the type of offering that we want to encourage carriers to provide.
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Federal Communications Commission FCC 15-72
For those concerned that today’s decision to reaffirm the broad application of TCPA, may result
in consumers losing access to valued communications, I simply say, we will remain vigilant. Consumers
have not hesitated to express their concerns about receiving unwanted calls through our complaint
process, and I have no doubt that they will do the same if access is unintentionally lost.
I would like to thank the staff of the Consumer and Government Affairs Bureau for their hard
work on this item, in particular, former Bureau Chief, Kris Monteith. Your passion and commitment are
evident in this particular item. I also wish to officially welcome new Bureau Chief, Alison Kutler, to our
team.
8069
Federal Communications Commission FCC 15-72
STATEMENT OF
COMMISSIONER JESSICA ROSENWORCEL
APPROVING IN PART, DISSENTING IN PART
Re: In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of
1991, CG Docket No. 02-278, WC Docket No. 07-135
Picture this. A family sits down to the dinner table. It’s more than an occasion to eat. It’s a
chance to tell tales of the day and reconnect in a busy world where the demands on our time can feel
unrelenting. I know this scene well. Because in my household, with two parents, two jobs, two kids, and
too little time in the day, the dinner hour is sacred. But all too often the bliss of this ritual is interrupted—
by Rachel from cardmember services, by an announcement that we’ve been pre-approved for a cruise or
credit card, or by any number of other robocalls presenting us with information we did not ask for, do not
want, and do not need.
I detest robocalls. I’m not alone. Year-in and year-out, Telephone Consumer Protection Act
complaints are the largest single category of complaints that consumers lodge with us here at the
Commission. We receive thousands of complaints a month about robocalls. Our friends across town at
the Federal Trade Commission receive tens of thousands more—at one point receiving nearly 200,000 in
a single month.
Ugh. It’s time—long past time—to do something about this. This is exactly why Congress
passed the Telephone Consumer Protection Act which paved the way for the Do-Not-Call Act and
registry. Like any law, these are not fool-proof. But if we update our policies we can not only give them
modern meaning but we can find new ways to honor our cherished right to be left alone.
In some ways, we achieve this lofty goal today, but in others we fall short.
First, the good stuff. We bring clarity to the law and empower consumers with tools to avoid
unwanted and harassing calls. Specifically, we make clear that nothing in the law prevents phone
companies from deploying the latest technologies to block unwanted robocalls. We also make clear that
consumers have the right to revoke any prior consent to receive robocalls. So when a consumer no longer
wants to receive a company’s robocalls they have the unequivocal right to say stop. These efforts will
help consumers manage robocalls, reduce unwanted intrusions, and bring a little more peace to the dinner
hour.
Next, the imperfect. Consumers have made clear—abundantly clear—they want fewer robocalls.
So I do not understand why for some sectors of the economy this Commission gives the green light for
more robocalls when consumers want a red one.
The Telephone Consumer Protection Act is straightforward: it requires a company to get a
consumer’s prior express consent before making robocalls to their number. But today we do away with
this requirement for big banks, healthcare providers, and pharmaceutical companies. They get a loophole.
The Order couches this exemption in high-minded rhetoric about informing consumers about upcoming
healthcare appointments and threats to their credit. But despite this rhetoric, the result is obvious—
consumers can expect to receive more robocalls from healthcare providers and banking institutions.
Moreover, this puts the Commission in the ridiculous business of policing speech made in these
calls and itemizing the number of calls permitted by these entities. The same result could be
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Federal Communications Commission FCC 15-72
accomplished through private contract. Every one of us knows that. Every one of us signs countless
forms to see a doctor or set up a bank account or arrange a loan. Giving our consent on these forms is not
only sensible—it would get this agency out of the business of enumerating what calls can be made and
what can be said on those calls. Because I think we need fewer robocalls and not more, on this aspect of
today’s decision I dissent.
Finally, I want to note that we have more work to do. Just last week, the Senate Special
Committee on Aging held a hearing about robocalls and scams in which bad actors prey on consumers by
faking or “spoofing” caller ID information. Call spoofing can be a pernicious tactic, confusing consumers
who believe they are getting calls from a legitimate government agency or company when in fact it is a
scammer on the other end of the line. We need to crack down on this predatory behavior—and if we lack
the tools to do so, we need to revise our policies or seek help from Congress to better protect consumers.
In addition, we need to give serious consideration to how our robocall policies impact schools.
To prevent truancy and create early warning for possible child abduction, many school districts call
parents to alert them when students are not in class. But their efforts are getting caught in a web of
lawsuits and the Commission needs to take a hard look at how to fix this.
I know this has been a rollicking effort and a contentious proceeding. But in many ways, today’s
efforts will bring a little more relief from commercial solicitation, a little more quiet in our homes, and a
little more peace to the dinner hour—to the extent it does, today’s decision has my support.
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Federal Communications Commission FCC 15-72
DISSENTING STATEMENT OF
COMMISSIONER AJIT PAI
Re: In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of
1991, CG Docket No. 02-278, WC Docket No. 07-135
Congress passed the Telephone Consumer Protection Act (TCPA) to crack down on intrusive
telemarketers and over-the-phone scam artists. It prohibits telemarketing in violation of our Do-Not-Call
rules and prohibits any person from making calls using the tools that telemarketers had at their disposal in
1991. And the TCPA includes a three-prong enforcement mechanism for remedying violations: States,
the FCC, and individual consumers can all take illegal telemarketers to court with statutory penalties
starting at $500 per violation.
553
Yet problems persist. Last year, the FCC received 96,288 complaints for violations of federal
Do-Not-Call rules, more than any other category of complaints.
554
On June 10, the Senate Special
Committee on Aging held a hearing on ending the epidemic of illegal telemarketing calls.
555
At that
hearing, the Attorney General of Missouri testified that the number one complaint of his constituents is
illegal telemarketing. His office alone received more than 52,000 telemarketing complaints in 2014.
556
And the Federal Trade Commission has reported that “increasingly, fraudsters, who often hide in other
countries in an attempt to escape detection and punishment, make robocalls that harass and defraud
consumers.” The FTC noted that a single scam artist made over 8 million deceptive robocalls to
Americans.
557
The bottom line is this: Far too many Americans are receiving far too many fraudulent
telemarketing calls. I know because my family and I get them on our cellphones during the day and on
our home phones at night. It’s a problem that’s only getting worse.
And none of this should be news to the FCC. As I remarked in this very room back in January:
“Unwanted telemarketing calls in violation of the National Do-Not-Call Registry are on the rise. In fact,
such complaints made up almost 40 percent of consumer complaints in our latest report—and the number
of complaints jumped dramatically last year from 19,303 in the first quarter to 34,425 in the third. Let’s
fix this problem.”
558
What has the Commission done since then to enforce the rules? It has issued a
single citation to a single potential violator of federal Do-Not-Call rules.
559
That’s not going to solve the
problem.
The courts haven’t been better. The TCPA’s private right of action and $500 statutory penalty
could incentivize plaintiffs to go after the illegal telemarketers, the over-the-phone scam artists, and the
553
47 U.S.C. §§ 227(b)(3), 227(c)(5), 227(g), 503(b).
554
See FCC, Quarterly Reports – Consumer Inquiries and Complaints, http://go.usa.gov/3VFkB (summing
complaints for 2014 from the “Top Complaint Subjects” tables).
555
Hearing before U.S. Senate Special Committee on Aging, “Ringing Off the Hook: Examining the Proliferation of
Unwanted Calls” (June 10, 2015), available at http://go.usa.gov/3wVHY.
556
Overview of Statement of Attorney General Chris Koster, Special Committee on Aging Panel Discussion, at 1
(June 10, 2015), available at http://go.usa.gov/3VFkQ.
557
Federal Trade Commission, Prepared Statement on Combatting Illegal Robocalls: Initiatives to End the
Epidemic, United States Senate Special Committee on Aging, at 4 (June 10, 2015), available at
http://go.usa.gov/3VFkw.
558
Statement of Commissioner Ajit Pai on FCC Consumer Help Center: A New Consumer Gateway (Jan. 29, 2015),
available at http://go.usa.gov/3VF9k.
559
FreeEats.com Inc., File No. EB-TCD-13-00007717, Citation and Order, 30 FCC Rcd 2659 (Enf. Bur. 2015).
8072
Federal Communications Commission FCC 15-72
foreign fraudsters. But trial lawyers have found legitimate, domestic businesses a much more profitable
target. As Adonis Hoffman, former Chief of Staff to Commissioner Clyburn, recently wrote in The Wall
Street Journal, a trial lawyer can collect about $2.4 million per suit by targeting American companies.
560
So it’s no surprise the TCPA has become the poster child for lawsuit abuse, with the number of TCPA
cases filed each year skyrocketing from 14 in 2008 to 1,908 in the first nine months of 2014.
Here’s one example. The Los Angeles Lakers offered its fans a fun opportunity: Send a text-
message to the team, and you might get to place a personalized message on the Jumbotron at the Staples
Center. The Lakers acknowledged receipt of each text with a reply making clear that not every message
would appear on the Jumbotron. The trial bar’s response? A class-action lawsuit claiming that every
automated text response was a violation of the TCPA.
Or here’s another. TaxiMagic, a precursor to Uber, sent confirmatory text messages to customers
who called for a cab. Each message indicated the cab’s number and when the cab was dispatched to the
customer’s location. Did customers appreciate this service? Surely. But one plaintiffs’ attorney saw
instead an opportunity to profit, and a class-action lawsuit swiftly followed.
Some lawyers go to ridiculous lengths to generate new TCPA business. They have asked family
members, friends, and significant others to download calling, voicemail, and texting apps in order to sue
the companies behind each app. Others have bought cheap, prepaid wireless phones so they can sue any
business that calls them by accident. One man in California even hired staff to log every wrong-number
call he received, issue demand letters to purported violators, and negotiate settlements. Only after he was
the lead plaintiff in over 600 lawsuits did the courts finally agree that he was a “vexatious litigant.”
The common thread here is that in practice the TCPA has strayed far from its original purpose.
And the FCC has the power to fix that. We could be taking aggressive enforcement action against those
who violate the federal Do-Not-Call rules. We could be establishing a safe harbor so that carriers could
block spoofed calls from overseas without fear of liability. And we could be shutting down the abusive
lawsuits by closing the legal loopholes that trial lawyers have exploited to target legitimate
communications between businesses and consumers.
Instead, the Order takes the opposite tack. Rather than focus on the illegal telemarketing calls
that consumers really care about, the Order twists the law’s words even further to target useful
communications between legitimate businesses and their customers.
561
This Order will make abuse of the
TCPA much, much easier. And the primary beneficiaries will be trial lawyers, not the American public.
I respectfully dissent.
560
Adonis Hoffman, “Sorry, Wrong Number, Now Pay Up,” The Wall Street Journal (June 16, 2015), available at
http://on.wsj.com/1GuwfMJ; see also John Eggerton, “FCC’s Hoffman Looks Back, Moves Forward,” Broadcasting
& Cable (Mar. 23, 2015), available at http://bit.ly/1GEQYNR (quoting Hoffman as saying “This consumer
protection, anti-telemarketing statute has been leveraged by aggressive plaintiffs’ lawyers to line their pockets
lavishly with millions, while consumers usually get peanuts. . . . I think the TCPA should be known by its real
acronym—‘Total Cash for Plaintiffs’ Attorneys.’ This is just one example where the public interest is not being
advanced responsibly.”).
561
The Order notes that the “TCPA makes it unlawful for any business—‘legitimate’ or not—to make robocalls that
do not comply with the provisions of the statute.” Order at note 6. Of course it does; rare is the statute that limits its
scope to only illegitimate businesses. The point is that Order redirects the TCPA’s aim away from undesirable
practices commonly used by telemarketers (the elimination of which benefits consumers) and toward desirable
communications between businesses and consumers (litigation against which benefits trial lawyers). As the very
name makes clear, the TCPA is a consumer protection statute, not a trial-lawyer protection statute.
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Federal Communications Commission FCC 15-72
I.
The Order dramatically expands the TCPA’s reach. The TCPA prohibits a person from making
“any call” to a mobile phone “using any automatic telephone dialing system,”
562
except in certain defined
circumstances. The statute defines an “automatic telephone dialing system” as “equipment which has the
capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number
generator; and (B) to dial such numbers.”
563
As three separate petitions explain, trial lawyers have sought
to apply this prohibition to equipment that cannot store or produce telephone numbers to be called using a
random or sequential number generator and that cannot dial such numbers.
564
That position is flatly inconsistent with the TCPA. The statute lays out two things that an
automatic telephone dialing system must be able to do or, to use the statutory term, must have the
“capacity” to do.
565
If a piece of equipment cannot do those two things—if it cannot store or produce
telephone numbers to be called using a random or sequential number generator and if it cannot dial such
numbers—then how can it possibly meet the statutory definition? It cannot. To use an analogy, does a
one-gallon bucket have the capacity to hold two gallons of water? Of course not.
That’s long been the FCC’s approach. When the Commission first interpreted the statute in 1992,
it concluded that the prohibitions on using automatic telephone dialing systems “clearly do not apply to
functions like ‘speed dialing,’ ‘call forwarding,’ or public telephone delayed message services[], because
the numbers called are not generated in a random or sequential fashion.”
566
Indeed, in that same order,
the Commission made clear that calls not “dialed using a random or sequential number generator” “are
not autodialer calls.”
567
Confirming this interpretation (what some proponents call the “present capacity” or “present
ability” approach
568
) is the statutory definition’s use of the present tense and indicative mood. An
562
47 U.S.C. § 227(b)(1)(A)(iii).
563
47 U.S.C. § 227(a)(1). A random number generates numbers randomly: 555-3455, 867-5309, etc. A sequential
number generator generates numbers in sequence: 555-3455, 555-3456, etc.
564
TextMe, Inc. Petition for Expedited Declaratory Ruling and Clarification, CG Docket No. 02-278 (Mar. 18,
2014); Glide Talk, Ltd. Petition for Expedited Declaratory Ruling, CG Docket No. 02-278 (Oct. 28, 2013);
Professional Association for Customer Engagement Petition for Expedited Declaratory Ruling and/or Expedited
Rulemaking, CG Docket No. 02-278 (Oct. 18, 2013).
565
See Webster’s New International Dictionary at 396 (2
nd
ed. 1958) (defining “capacity” in relevant part to mean
“power of receiving, containing, or absorbing,” “extent of room or space,” “ability,” “capability,” or “maximum
output”).
566
Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CC Docket No. 92-90,
Report and Order, 7 FCC Rcd 8752, 8776, para. 47 (1992) (emphasis added).
567
Id. at 8773, para. 39.
568
See, e.g., Chamber Comments on PACE Petition at 5; CI Comments on Glide Petition at 3–4; Covington
Comments on PACE Petition at 4–5; DIRECTV Comments on PACE Petition at 2–3; Fowler Comments on PACE
Petition at 1; Glide Reply Comments on PACE Petition at 6; Global Comments on PACE Petition at 2; Internet
Association Comments on TextMe Petition at 2–3; NCHER Reply Comments on PACE Petition at 2; Nicor
Comments on PACE Petition at 7; Noble Systems Comments on Glide Petition at 4; Path Comments on Glide
Petition at 22; Twilio Comments on Glide Petition at 13; YouMail Reply Comments on PACE Petition at 4; Letter
from Monica S. Desai, Counsel to Wells Fargo, to Marlene H. Dortch, Secretary, FCC, CG Docket No. 02-278, at
1–2 (June 11, 2015); Letter from Steven A. Augustino, Counsel to Five9, Inc., to Marlene H. Dortch, Secretary,
FCC, CG Docket No. 02-278, at 1–2 (June 11, 2015); Letter from Monica S. Desai, Counsel to ACA International,
to Marlene H. Dortch, Secretary, FCC, CG Docket No. 02-278, at 2–6 (June 11, 2015); Letter from Stephanie L.
Podey, Vice President and Associate General Counsel, to Marlene H. Dortch, Secretary, FCC, CG Docket No. 02-
278, at 2–3 (June 10, 2015); Letter from Jennifer D. Hindin, Counsel to Sirius XM Radio, Inc., to Marlene H.
Dortch, Secretary, FCC, CG Docket No. 02-278, at 2 (June 8, 2015).
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Federal Communications Commission FCC 15-72
automatic telephone dialing system is “equipment which has the capacity” to dial random or sequential
numbers,
569
meaning that system actually can dial such numbers at the time the call is made. Had
Congress wanted to define automatic telephone dialing system more broadly it could have done so by
adding tenses and moods, defining it as “equipment which has, has had, or could have the capacity.”
570
But it didn’t. We must respect the precise contours of the statute that Congress enacted.
571
The Order reaches the contrary conclusion and holds that the term “automatic telephone dialing
system” includes equipment that cannot presently store or produce telephone numbers to be called using a
random or sequential number generator and that cannot presently dial such numbers. The apparent test is
whether there is “more than a theoretical potential that the equipment could be modified to satisfy the
‘autodialer’ definition.”
572
To put it kindly, the Order’s interpretation is a bit of a mess.
For one, it dramatically departs from the ordinary use of the term “capacity.” Although the
Order points to dictionaries to suggest that the word “capacity” means “the potential or suitability for
holding, storing, or accommodating,”
573
those definitions in fact undermine the Order’s conclusion. No
one would say that a one-gallon bucket has the “potential or suitability for holding, storing, or
accommodating” two gallons of water just because it could be modified to hold two gallons. Nor would
anyone argue that Lambeau Field in Green Bay, Wisconsin, which can seat 80,000 people, has the
capacity (i.e., the “potential or suitability”) to seat all 104,000 Green Bay residents just because it could
be modified to have that much seating.
574
The question of a thing’s capacity is whether it can do
something presently, not whether it could be modified to do something later on.
For another, the Order’s expansive reading of the term “capacity” transforms the TCPA from a
statutory rifle-shot targeting specific companies that market their services through automated random or
sequential dialing into an unpredictable shotgun blast covering virtually all communications devices.
Think about it. It’s trivial to download an app, update software, or write a few lines of code that would
modify a phone to dial random or sequential numbers. So under the Order’s reading of the TCPA, each
and every smartphone, tablet, VoIP phone, calling app, texting app—pretty much any calling device or
software-enabled feature that’s not a “rotary-dial phone”
575
—is an automatic telephone dialing system.
576
569
47 U.S.C. § 227(a)(1).
570
See, e.g., United States v. Wilson, 503 U.S. 329, 333 (1992) (“Congress’ use of a verb tense is significant in
construing statutes.”); Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 57 (1987)
(“Congress could have phrased its requirement in language that looked to the past . . . , but it did not choose this
readily available option.”).
571
See Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 93–94 (2002) (explaining that “like any key term in an
important piece of legislation, the [statutory provision in question] was the result of compromise between groups
with marked but divergent interests in the contested provision” and that “[c]ourts and agencies must respect and give
effect to these sorts of compromises”); see also John F. Manning, Second-Generation Textualism, 98 Cal. L. Rev.
1287, 1309–17 (2010) (arguing that respecting legislative compromise means that courts “must respect the level of
generality at which the legislature expresses its policies”).
572
Order at para. 18.
573
See Order at para. 19.
574
The Order responds that the analogy is “inapt” because “modern dialing equipment can often be modified
remotely without the effort and cost of adding physical space to an existing structure.” Order at para. 16. This
misses the point. If asked the seating capacity of Lambeau Field, no one would first study whether one could seat
more than 80,000 “without the effort and cost of adding physical space” (perhaps by adding benches). Instead,
they’d respond with how many the stadium could seat as is, without any modification.
575
Order at para. 18.
576
Indeed, the Order both acknowledges that smartphones are swept in under its reading, Order at para. 21, and
explicitly sweeps in all Internet-to-phone text messages via email or via a web portal, Order at para. 111.
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Federal Communications Commission FCC 15-72
Such a reading of the statute subjects not just businesses and telemarketers but almost all our
citizens to liability for everyday communications. One need not bother with the legislative history to
realize that lawmakers did not intend to interfere with “expected or desired communications between
businesses and their customers.”
577
And one need not be versed in the canon of constitutional
avoidance
578
to know that courts and administrative agencies normally eschew statutory interpretations
that chill the speech of every American that owns a phone.
579
Yet the Order’s interpretation does
precisely that.
Let me give just one example. Jim meets Jane at a party. The next day, he wants to follow up on
their conversation and ask her out for lunch. He gets her cellphone number from a mutual friend and texts
her from his smartphone. Pursuant to the Order, Jim has violated the TCPA, and Jane could sue him for
$500 in statutory damages.
In response, the Order tells smartphone owners not to worry: “We have no evidence that friends,
relatives, and companies with which consumers do business find those calls unwanted and take legal
action against the calling consumer.”
580
That’s little solace. There is no evidence of smartphone class-
action suits yet because no one has thought the TCPA prohibited the ordinary use of smartphones—at
least not before now. Now that they do, the lawsuits are sure to follow.
581
The Order then protests that interpreting the statute to mean what it says—that automatic
telephone dialing equipment must be able to dial random or sequential numbers—“could render the
TCPA’s protections largely meaningless by ensuring that little or no modern dialing equipment would fit
the statutory definition of an autodialer.”
582
But what the Commission deems defeat is in fact a victory for
consumers. Congress expressly targeted equipment that enables telemarketers to dial random or
sequential numbers in the TCPA. If callers have abandoned that equipment, then the TCPA has
accomplished the precise goal Congress set out for it. And if the FCC wishes to take action against newer
technologies beyond the TCPA’s bailiwick, it must get express authorization from Congress—not make
up the law as it goes along.
577
Report of the Energy and Commerce Committee of the U.S. House of Representatives, H.R. Rep. 102-317, at 17
(1991) (House Report).
578
See Clark v. Martinez, 543 U.S. 371, 381 (2005) (describing the canon as “a tool for choosing between
competing plausible interpretations of a statutory text, resting on the reasonable presumption that Congress did not
intend the alternative which raises serious constitutional doubts”).
579
See U.S. Const. amend. I (“Congress shall make no law . . . abridging the freedom of speech . . . .”). Notably, the
constitutional question is not whether this interpretation of the TCPA would meet the less strict standard governing
“commercial speech,” see Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447
U.S. 557, 562–63 (1980), because the TCPA restricts the making of “any call”—not just commercial calls—using an
automatic telephone dialing system, 47 U.S.C. § 227(b)(1)(A) (emphasis added). Instead, the question is whether
this interpretation is “narrowly tailored to serve the government’s legitimate, content-neutral interests.” Ward v.
Rock Against Racism, 491 U.S. 781, 798 (1989). How could anyone answer that question in the affirmative given
that the majority of Americans carry a smartphone (what the Order now labels an automatic telephone dialing
system) in their pockets?
580
Order at para. 21.
581
This is underscored by the Order itself, which opens by emphasizing its position that the TCPA applies not “just
[to] bad actors attempting to perpetrate frauds, but also [to] ‘legitimate businesses’ employing calling practices that
consumers find objectionable,” and that the FCC “[has] not viewed ‘legitimate’ businesses as somehow exempt
from the statute, nor do we do so today.” Order at note 6. Having opened the door wide, the agency cannot then
stipulate restraint among those who would have a financial incentive to walk through it.
582
Order at para. 20.
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Federal Communications Commission FCC 15-72
Next, the Order seeks refuge in Commission precedent, claiming that it has “already twice
addressed the issue.”
583
Not quite. Those two rulings both involved “predictive dialers,” which the FCC
described as having “the capacity to store or produce numbers and dial those numbers at random, in
sequential order, or from a database of numbers.”
584
In 2003, the FCC explained that pairing automatic
telephone dialing equipment “with predictive dialing software and a database of numbers” (and calling
the combination a predictive dialer) would not exclude that equipment from the statutory prohibition.
585
And in 2008, the FCC found that using such equipment was still prohibited even “when it dials numbers
from customer telephone lists” and not “randomly or sequentially.”
586
The key issue in each decision was
that the equipment had the capacity to dial random or sequential numbers at the time of the call, even if
that capacity was not in fact used. Or, as the Commission phrased it later, it doesn’t matter “whether or
not the numbers called actually are randomly or sequentially generated or come from a calling list”
587
; if
the equipment has the requisite capacity, it’s an automatic telephone dialing system. That’s exactly what
the statute requires, and it’s a far cry from the issue we confront here.
In short, we should read the TCPA to mean what it says: Equipment that cannot store, produce,
or dial a random or sequential telephone number does not qualify as an automatic telephone dialing
system because it does not have the capacity to store, produce, or dial a random or sequential telephone
number. The Order’s contrary reading is sure to spark endless litigation, to the detriment of consumers
and the legitimate businesses that want to communicate with them.
II.
The Order opens the floodgates to more TCPA litigation against good-faith actors for another
reason as well. There is no TCPA liability if a caller obtains the “prior express consent of the called
party.”
588
Accordingly, many businesses only call consumers who have given their prior express consent.
But consumers often give up their phone numbers and those numbers are then reassigned to other people.
And when that happens, consumers don’t preemptively contact every business to which they have given
their number to inform them of the change. So even the most well-intentioned and well-informed
business will sometimes call a number that’s been reassigned to a new person. After all, over 37 million
telephone numbers are reassigned each year.
589
And no authoritative database—certainly not one
maintained or overseen by the FCC, which has plenary authority over phone numbers—exists to “track all
disconnected or reassigned telephone numbers” or “link[] all consumer names with their telephone
numbers.”
590
As four separate petitions explain, trial lawyers have sought to apply a strict liability
583
Order at para. 15.
584
Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Docket No. 02-278,
Report and Order, 18 FCC Rcd 14014, 14091, para. 131 (2003) (2003 TCPA Order).
585
See id. at 14092, para. 133.
586
Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991; Request of ACA
International for Clarification and Declaratory Ruling, CG Docket No. 02-278, Declaratory Ruling, 23 FCC Rcd
559, 566, para. 12 (2008) (2008 TCPA Order).
587
Implementation of the Middle Class Tax Relief and Job Creation Act of 2012; Establishment of a Public Safety
Answering Point Do-Not-Call Registry, CG Docket No. 12-129, Report and Order, 27 FCC Rcd 13615, 13629, para.
29 (2012).
588
47 U.S.C. § 227(b)(1)(A); see also 47 U.S.C. § 227(b)(1)(B) (only prohibiting calls made “without the prior
express consent of the called party”).
589
Alyssa Abkowitz, “Wrong Number? Blame Companies’ Recycling,” The Wall Street Journal (Dec. 1, 2011),
available at http://on.wsj.com/1Txmowl.
590
Letter from Richard L. Fruchterman, Associate General Counsel to Neustar, to Marlene H. Dortch, Secretary,
FCC, CG Docket No. 02-278, at 1 (Feb. 5, 2015).
8077
Federal Communications Commission FCC 15-72
standard on good-faith actors—so even if a company has no reason to know that it’s calling a wrong
number, it’ll be liable.
591
Imposing strict liability is not usually how the law works. Indeed, the Commission has
previously rejected an interpretation of the TCPA that would have imposed strict liability on callers after
a consumer ports his number from a landline to a wireless phone.
592
Instead, the FCC endorsed the view
that “[i]t is a flawed and unreasonable construction of any statute to read it in a manner that demands the
impossible.”
593
That logic should apply here.
Perhaps more to the point, the statute takes into account a caller’s knowledge. Recall that the
statute exempts calls “made with the prior express consent of the called party.” Interpreting the term
“called party” to mean the expected recipient—that is, the party expected to answer the call—is by far the
best reading of the statute.
594
Start with an example of ordinary usage. Your uncle writes down his telephone number for you
and asks you to give him a call (what the TCPA terms “prior express consent”). If you dial that number,
whom would you say you are calling? Your uncle, of course.
No one would say that the answer depends on who actually answers the phone. If your uncle’s
friend picks up, you’d say you were calling your uncle. So too if the phone is picked up by the passenger
in your uncle’s vehicle or your uncle’s houseguest. Nor would your answer change if your uncle wrote
down the wrong number, or he lost his phone and someone else answered it. Who is the called party in
each and every one of these situations? It’s obviously the person you expected to call (your uncle), not
the person who actually answers the phone.
And no one would say that the answer depends on who actually pays for the service. If your
uncle and aunt share a landline, you’d still say you were calling your uncle even if your aunt’s name was
on the bill. And if your uncle and aunt are on a wireless family plan, it’s still his number you’re dialing
even if she’s picking up the tab. In other words, it doesn’t matter who the actual subscriber is; what
matters when placing a call is whom you expect to answer.
Given ordinary usage, it should be no surprise that the FCC has implicitly endorsed this approach
before. As the Commission wrote in 2008, “calls to wireless numbers provided by the called party . . . are
made with the ‘prior express consent’ of the called party.”
595
In other words, the called party is the person
who consented to a call and the person who would ordinarily be expected to answer.
591
Consumer Bankers Association Petition for Declaratory Ruling, CG Docket No. 02-278 (Sept. 19, 2013); Rubio’s
Restaurant, Inc. Petition for Expedited Declaratory Ruling, CG Docket No. 02-278 (Aug. 15, 2014); Stage Stores,
Inc. Petition for Expedited Declaratory Ruling, CG Docket No. 02-278 (June 4, 2014); United Healthcare Services,
Inc. Petition for Expedited Declaratory Ruling, CG Docket No. 02-278 (Jan. 16, 2014).
592
Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Docket No. 02-278,
Order, 19 FCC Rcd 19215, 19219, para. 9 (2004).
593
McNeil v. Time Ins. Co., 205 F.3d 179, 187 (5th Cir. 2000).
594
Most commenters term this the “intended recipient” approach. See, e.g., CBA Petition at 3; AFSA Comments on
CBA Petition at 2; Nonprofits Comments on Rubio’s Petition at 4, 6; Twitter Comments on Stage Petition at 9–11;
Letter from Monica S. Desai, Counsel to Wells Fargo, to Marlene H. Dortch, Secretary, FCC, CG Docket No. 02-
278, at 1 (June 11, 2015); Letter from Monica S. Desai, Counsel to ACA International, to Marlene H. Dortch,
Secretary, FCC, CG Docket No. 02-278, at 6–7 (June 11, 2015); Letter from Tracy P. Marshall, Counsel to NRECA,
to Marlene H. Dortch, Secretary, FCC, CG Docket No. 02-278, at 2 (June 10, 2015); Letter from Monica S. Desai,
Counsel to Abercrombie & Fitch Co. and Hollister Co., to Marlene H. Dortch, Secretary, FCC, CG Docket No. 02-
278, at 1–4 (May 13, 2015).
595
2008 TCPA Order, 23 FCC Rcd at 564, para. 9. The Order tries to play gotcha by claiming that the next
sentence of that same ruling “directly supports our finding here.” Order at note 264. Not quite. That sentence
states that “the provision of a cell phone number to a creditor, e.g., as part of a credit application, reasonably
(continued....)
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Federal Communications Commission FCC 15-72
The expected-recipient approach respects Congress’s intent that the TCPA “balanc[e] the privacy
rights of the individual and the commercial speech rights of the telemarketer.”
596
On the one hand, the
expected-recipient approach gives individuals the right to stop unwanted, wrong-number phone calls in
the first instance. Once an individual informs a caller that he has the wrong number, the caller can no
longer expect to reach the party that consented and no longer claim to have to consent to continue calling.
And so the expected-recipient approach rightfully sanctions the bad actors—often debt collectors
597
—that
repeatedly call after an individual has told them they’ve got the wrong number.
On the other hand, the expected-recipient approach gives legitimate businesses a clear and
administrable means of complying with the law and engaging in “normal, expected or desired
communications [with] their customers.”
598
A good actor can refuse to call anyone without first securing
an individual’s consent, and a good actor can stop calling as soon as it learns that a number is wrong.
Although taking these steps may not always be easy, they are an administrable means of complying with
the statute and a way for any legitimate business to conduct its communications lawfully.
The expected-recipient approach also aligns the incentives of all parties to welcome legitimate
calls and punish bad behavior. Businesses will have every incentive to secure prior express consent
before making a call,
599
to ensure that a number is properly dialed,
600
and to stop calling as soon as they
learn that a number is wrong because those actions shield businesses from strict liability. And the
approach gives individuals the incentive to tell callers that they’ve got the wrong number, leading to
fewer intrusive calls.
Confirming the expected-recipient interpretation is the canon of avoidance, which counsels that if
one interpretation of a statute “would raise a multitude of constitutional problems, the other should
prevail.”
601
Here, the expected-recipient interpretation fosters useful and desirable communications
(...continued from previous page)
evidences prior express consent by the cell phone subscriber regarding the debt.” 2008 TCPA Order, 23 FCC Rcd at
564, para. 9. Like the previous sentence in that order, its clear import is that a creditor may rely on a debtor’s
provision of a number to call that number (at least so long as the creditor can reasonably expect to reach the debtor
at that number). But the Order’s alternative reading would eviscerate that reliance since the creditor would become
liable if the debtor wrote down the wrong number or if the debtor was not the subscriber but instead the customary
user. Such a result would be doubly strange since the Order itself claims that the TCPA “anticipates” a reliance
interest on the part of callers, Order at note 313, and the Order itself rejects the notion that only the subscriber can
consent to receiving calls, Order at para. 75.
596
House Report at 10.
597
See, e.g., Letter from Margot Saunders, Counsel to National Consumer Law Center, to Marlene Dortch,
Secretary, FCC, CG Docket No. 02-278, at 9 (June 6, 2014) (“The Consumer Financial Protection Bureau’s Annual
Report for 2013 shows that 33% of debt collection complaints involved continued attempts to collect debts not
owed, which include complaints that the debt does not belong to the person called.”); NCLC et al. Comments on
CBA Petition at 4; NCLC et al. Reply Comments on CBA Petition at 2.
598
House Report at 17.
599
Indeed, the incentive to secure prior express consent is greater than under a strict liability approach. Under the
expected-recipient approach, consent is more valuable because it is a shield from liability for every call made in
good faith. In contrast, strict liability reduces consent’s value to one free call. Given the substantial cost of securing
consent, more businesses are likely to spend the resources in an expected-recipient regime than under strict liability.
600
Notably, the caller would be not be liable for calls where the consenting party wrote down a wrong number (since
the caller would still expect to reach the consenting party by dialing the number given) but would be liable for its
own mistakes (since the caller could not expect to reach the consenting party by dialing a number different than that
given).
601
Clark v. Martinez, 543 U.S. 371, 380–81 (2005); see id. at 380 (“It is not at all unusual to give a statute’s
ambiguous language a limiting construction called for by one of the statute’s applications, even though other of the
statute’s applications, standing alone, would not support the same limitation. The lowest common denominator, as it
were, must govern.”).
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Federal Communications Commission FCC 15-72
between businesses and their customers—communications that consumers have expressly consented to
receiving. In contrast, the Order’s strict liability interpretation chills such communications by threatening
a company with crippling liability even if it reasonably expects to reach a consenting consumer when
making a call. It is difficult to see how chilling desired communications in this manner is “narrowly
tailored to serve the government’s legitimate, content-neutral interests.”
602
In contrast, the Order rejects the expected-recipient approach and endorses a mishmash
interpretation. According to the Order, callers are subject to strict liability after a single attempted call to
number that’s been reassigned to a new subscriber. Its interpretation is a veritable quagmire of self-
contradiction and misplaced incentives.
For one, the Order’s chief legal theory does not hold water. The Order insists that the “called
party” for purposes of consent must be the subscriber because the TCPA elsewhere prohibits certain calls
to “any service for which the called party is charged for the call” and restricts exemptions to calls “that
are not charged to the called party.”
603
But Congress did not use the phrase “called party” consistently
throughout the TCPA. For example, the TCPA requires the FCC to prescribe technical standards for
“systems that are used to transmit any artificial or prerecorded voice message via telephone” and requires
those systems to release a line “within 5 seconds of the time notification is transmitted to the system that
the called party has hung up.”
604
The Commission has never interpreted this requirement to only apply
when the actual subscriber hangs up the phone, which would leave a rather large loophole in the TCPA’s
enforcement regime. And the Order does not appear to embrace this absurd theory either. Instead, the
law remains what it always has, that the called party for purposes of this provision is whoever picks up
the phone.
What is more, the Order does not even subscribe to its own legal theory on the question at hand.
Not one paragraph after positing the theory, the Order reinterprets the term “called party” to include a
number’s customary user even if that customary user is not charged for the call because a caller “cannot
reasonably be expected to divine that the consenting person is not the subscriber.”
605
But the Order can’t
have it both ways: Either the legal theory is right and a customary user is not the called party, or the legal
theory is wrong.
For another, the Order’s strict liability approach leads to perverse incentives. Most significantly,
it creates a trap for law-abiding companies by giving litigious individuals a reason not to inform callers
about a wrong number. This will certainly help trial lawyers update their business model for the digital
age.
This isn’t mere hypothesis; it is fact. Take the case of Rubio’s, a West Coast restaurateur.
Rubio’s sends its quality-assurance team text messages about food safety issues, such as possible
foodborne illnesses, to better ensure the health and safety of Rubio’s customers. When one Rubio’s
employee lost his phone, his wireless carrier reassigned his number to someone else. Unaware of the
reassignment, Rubio’s kept sending texts to what it thought was an employee’s phone number. The new
subscriber never asked Rubio’s to stop texting him—at least not until he sued Rubio’s in court for nearly
half a million dollars.
602
Ward v. Rock Against Racism, 491 U.S. 781, 798 (1989). As noted earlier, the constitutional question is not
whether this interpretation of the TCPA would meet the less strict standard governing “commercial speech,” see
Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 562–63 (1980),
because the TCPA restricts the making of “any call”—not just commercial calls—using an automatic telephone
dialing system or a prerecorded or artificial voice, 47 U.S.C. §§ 227(b)(1)(A), 227(b)(1)(B) (emphasis added).
603
See Order at para. 74; 47 U.S.C. §§ 227(b)(1)(A)(iii), 227(b)(2)(C).
604
47 U.S.C. § 227(d)(3)(B) (emphasis added).
605
Order at para. 75.
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Federal Communications Commission FCC 15-72
The Order’s defenses are underwhelming. The Order points out that callers have the option of
“manually dialing”
606
but forgets that dialing a number by hand still violates the TCPA if the equipment is
an automatic telephone dialing system (which almost all equipment is under the Order).
607
The Order
claims a one-call exemption for reassigned numbers would not “demand the impossible”
608
but then
imposes liability on callers even if the new subscriber does not tell them that the number has been
reassigned. The Order rejects a knowledge standard as “unworkable” because “once there is actual
knowledge, callers may not honor do-not-call requests”
609
but ignores the fact that good actors cannot
implement a one-call standard while bad actors won’t honor that standard anyway. And the Order offers
a laundry list of ways that a caller might determine that a number has been reassigned
610
but declines to
adopt a safe harbor for good actors that carry out these practices and instead subjects them to wrong-
number litigation.
Perhaps most shocking is the Order’s claim that the answer to wrong-number calls is for
companies to turn the liability back on their own customers. “Nothing in the TCPA or our rules prevents
parties from creating . . . an obligation for the person giving consent to notify the caller when the number
has been relinquished,” the Order states before noting that “the caller may wish to seek legal remedies for
violation of the agreement.”
611
In other words, companies can sue their customers. To be sure, this will
create yet more work for the primary beneficiaries of the Order: attorneys. But nothing in the TCPA or
our rules suggests that Congress intended the TCPA as a weapon to be used against consumers that forget
to inform a business when they switch numbers.
In short, we should not inject a strict liability standard into the TCPA. Instead, we should
interpret the words of the statute in the way most would and make clear that “prior express consent of the
called party” means the prior express consent of the party the caller expects to reach. The Order’s
contrary reading is sure to encourage yet more litigation, to the detriment of consumers and the legitimate
businesses that want to communicate with them.
III.
The Order will also make it harder to enforce our prohibitions on illegal telemarketing. The
TCPA’s chief sponsor in the Senate, Fritz Hollings, once called indiscriminate telemarketing calls “the
scourge of modern civilization.”
612
So it is unsurprising that the TCPA places additional restrictions, such
606
Order at para. 84.
607
See Order at note 70 (agreeing that any call made from an automatic telephone dialing system triggers liability,
even if the “functionalities” making that equipment an automatic telephone dialing system are not actually used to
make a particular call).
608
Order at note 312. The authority the Order relies on for its one-call exemption is less than clear. At one point, it
says it is interpreting the phrase “prior express consent.” Order at note 300. Elsewhere, the Order says that the
TCPA “anticipates” a caller’s “reliance” on prior express consent, which it then interprets to mean one call’s worth
of reliance for reassigned numbers (and zero call’s worth of reliance for wrong numbers). Order at note 312. Still
elsewhere, the Order is more forthright that it is just “balancing the caller’s interest in having an opportunity to learn
of reassignment against the privacy interests of consumers to whom the number is reassigned,” Order at para. 85,
which is to admit that the Order is rewriting the TCPA, not interpreting it.
609
Order at para. 88.
610
Order at para. 86.
611
Order at para. 86 & note 302.
612
137 Cong. Rec. S9874 (daily ed. July 11, 1991) (statement of Sen. Hollings).
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Federal Communications Commission FCC 15-72
as compliance with federal Do-Not-Call rules,
613
on telemarketing calls whether they are “telephone
solicitations” or “unsolicited advertisements.”
614
The Order undermines these protections with a special carve-out for the prison payphone
industry. This dispensation lets that industry repeatedly make prerecorded voice calls to consumers in
order to “set up a billing relationship” to pay for future services.
615
You might have no interest in
receiving phone calls from those behind bars, but prison payphone providers will be able to robocall you
anyway. This exemption opens the door to more actual robocalls—the same types of robotic calls that
made “Rachel from Cardholder Services” infamous.
Indeed, the rationale provided by the Commission to justify this decision provides a roadmap for
those seeking a lawful way to avoid our telemarketing rules. That’s because we cannot exempt calls that
“include or introduce an advertisement or constitute telemarketing.”
616
So the Order must (and does) find
that robocalling to “set up a billing relationship” is not advertising the “commercial availability . . . of . . .
services” even though no one would agree to set up billing relationship to pay for a service that isn’t
commercially available.
617
And so the Order must (and does) find that robocalling to “set up a billing
relationship” is not “encouraging the purchase . . . of . . . services” even though the entire point of the call
is to get the consumer to agree to pay for services not yet performed.
618
What telemarketer will continue
to hock goods the old-fashioned way when it can escape the TCPA’s particular constraints on
telemarketing by claiming to just set up billing relationships for services not yet performed? In other
words, the one type of call consumers hate most—telemarketing calls—just got easier.
619
I do not support creating such a loophole. In my view, apart from truly exigent circumstances,
the FCC should not condone new robocalls to American consumers, period.
* * *
There is, of course, much more to the Order. Many of the decisions just reiterate well-known,
settled law that I support. Yes, the TCPA applies to text messages as the Commission decided back in
2003.
620
Yes, consumers have the right to revoke prior express consent as we confirmed in 2012.
621
And
613
See 47 U.S.C. § 227(c).
614
See 47 U.S.C. §§ 227(a)(4)–(5).
615
Order at para. 42.
616
See 47 C.F.R. § 64.1200(a)(3)(iii); see also 47 U.S.C. § 227(b)(2)(B)(ii) (prohibiting the FCC from exempting
commercial calls that “include the transmission of any unsolicited advertisement”).
617
Order at para. 42; 47 C.F.R. § 64.1200(f)(1).
618
Order at para. 42; 47 C.F.R. § 64.1200(f)(12).
619
In responding that it has crafted a “narrow exemption” reflecting “unique factual and legal circumstances” in a
“unique context,” Order at para. 42 & note 178, the Order misses the point. Of course non-prison payphone
telemarketers won’t qualify for this particular exemption. But telemarketers can now avoid federal Do-Not-Call
regulations because the Order narrows the definitions of telemarketing and advertising to exclude calls to “set up a
billing relationship.” That’s not even a loophole—that’s an invitation for more robocalls.
620
See Order at para. 107; 2003 TCPA Order, 18 FCC Rcd at 14115, para. 165.
621
See Order at paras. 56–57; Rules and Regulations Implementing the Telephone Consumer Protection Act of
1991; SoundBite Communications, Inc. Petition for Expedited Declaratory Ruling, CG Docket No. 02-278,
Declaratory Ruling, 27 FCC Rcd 15391, 15397, para. 11 (2012).
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Federal Communications Commission FCC 15-72
yes, a consumer may opt-in to a carrier’s call-blocking services—which has been the law of the land since
at least 2007.
622
None of these are surprising outcomes, but none advance the ball.
As for the decisions that strike new ground, a few are good law—for instance, app providers
won’t face TCPA liability because they don’t initiate calls placed by their users.
623
But most just shift the
burden of compliance away from telemarketers and onto legitimate businesses, sometimes in absurd
ways.
For instance, how could any retail business possibly comply with the provision that consumers
can revoke consent orally “at an in-store bill payment location”?
624
Would they have to record and review
every single conversation between customers and employees? Would a harried cashier at McDonald’s
have to be trained in the nuances of customer consent for TCPA purposes? What exactly would
constitute revocation in such circumstances? Could a customer simply walk up to a McDonald’s counter,
provide his contact information and a summary “I’m not lovin’ it,” and put the onus on the company?
The prospects make one grimace.
In all, the Order is likely to leave the American consumer, not to mention American enterprise,
worse off. That’s not something anyone should support. I certainly don’t and accordingly dissent.
622
See Order at paras. 154, 160; Just and Reasonable Rate for Local Exchange Carriers; Call Blocking by Carriers,
WC Docket No. 07-135, Declaratory Ruling and Order, 22 FCC Rcd 11629, 11631–32, para. 6 & n.21 (Wireline
Comp. Bur. 2007).
623
See Order at paras. 32, 36.
624
Order at para. 64.
8083
Federal Communications Commission FCC 15-72
STATEMENT OF
COMMISSIONER MICHAEL O’RIELLY
DISSENTING IN PART AND APPROVING IN PART
Re: In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of
1991, CG Docket No. 02-278, WC Docket No. 07-135
Today’s order has been hailed as “protecting” Americans from harassing robocalls and texts.
That is a farce. Instead, the order penalizes businesses and institutions acting in good faith to reach their
customers using modern technologies. I’m sure it will be said that we are approving half of the petitions
before us. But, that is a completely misleading point, because many of the petitions were filed due to the
belief that the Commission would not do anything to properly address the two big issues: reassigned
numbers and autodialers.
I have made clear, on multiple occasions, that I do not condone abusive calling practices. In fact,
I had been working for over a year in the hopes of advancing an item that would protect consumers from
unwanted communications while enabling legitimate businesses to reach individuals that wish to be
contacted. That is the balance that Congress struck when it enacted the Telephone Consumer Protection
Act (TCPA) in 1991.
Unfortunately, that balance has been turned on its head by prior FCC decisions that expanded the
scope of the TCPA, and through litigation across the country that, in many cases, has further increased
liability for good actors. Indeed, it has been reported that over 2,000 TCPA class action lawsuits were
filed in 2014 alone.
1
Far from protecting consumers, however, “[t]his current state of affairs, where
companies must choose between potentially crushing damages under the TCPA or cease providing
valuable communications specifically requested by consumers, contravenes Congress’s intent for the
statute not to interfere with normal, expected, and desired communications that consumers have expressly
consented to receive.”
2
These include:
3
· Alerts from a school that a child did not arrive at school, or that the building is on lockdown
· Product recall and safety notifications
· Notifications regarding storm alerts, utility outages, and service restoration
1
Comments of Twitter, Inc. in Support of Blackboard, Inc.’s Petition for Expedited Declaratory Ruling, CG Docket
No. 02-278, at 4 (filed Apr. 22, 2015) (Twitter Apr. 22, 2015 Comments). See also, e.g., Letter from Monica S.
Desai, Counsel to Wells Fargo, to Marlene H. Dortch, FCC, CG Docket No. 02-278, at Exh. 5-6 (filed Jan. 26,
2015) (Wells Fargo Jan. 26, 2015 Ex Parte Letter) (providing statistics on the breadth of TCPA litigation).
2
Letter from Monica S. Desai, Counsel to Abercrombie & Fitch Co. and Hollister Co., to Marlene H. Dortch, FCC,
CG Docket No. 02-278, at 4 (filed May 13, 2015) (Abercrombie May 13, 2015 Comments) (emphasis added). See
also Twitter Apr. 22, 2015 Comments at 12 (“In enacting the TCPA, Congress could not have intended for
legitimate businesses…to choose between risking massive liability or denying consumers the chance to receive
useful text messages that they expressly requested.”).
3
See, e.g., Letter from Mark W. Brennan, Counsel to United Healthcare Services, Inc., to Marlene H. Dortch, FCC,
CG Docket No. 02-278, at 2-3 (filed July 28, 2014) (United July 28, 2014 Ex Parte Letter); Letter from Monica S.
Desai, Counsel to Genesys Telecommunications Laboratories, Inc., to Marlene H. Dortch, FCC, CG Docket No. 02-
278, at 2 (filed June 11, 2015) (Genesys June 11, 2015 Ex Parte Letter); Wells Fargo Jan. 26, 2015 Ex Parte Letter
at Exh. 4; Gragg v. Orange Cab Co., Inc., 995 F. Supp. 2d 1189 (W.D. Wash. 2014).
8084
Federal Communications Commission FCC 15-72
· Immunization reminders for underserved, low-income populations
· Announcements from employment agencies about job openings
· Tweets (and other social media updates) and Instant Message notifications received by text
· Updates from airlines to let their customers know their flight has been delayed
· Financial alerts, including balance and overdraft information
· Text messages from taxi and ridesharing services to alert customers when their driver has arrived.
Moreover, this is despite evidence in the record of the benefits of informational calls and texts.
For example:
· Health care: “‘[S]ignificantly more’ patients who received automated telephone messages
regarding hypertension treatment achieved blood pressure control than patients who received
ordinary care only.”
4
· Financial Services: “Borrowers that we [loan servicers] are able to auto dial have delinquency
rates less than half of those that we cannot auto dial (13% versus 29%). … Borrowers that we
[loan servicers] were able to auto dial in Q4 2014 had default rates 7 times lower than those we
could not auto dial (0.6% versus 4.6% of dollar balance). … On an annual basis, TCPA
contributes up to $2,261,900,761 in extra defaults.”
5
· Disaster-Related Communications: When a typhoon hit the Philippines in November 2013,
multiple wireless carriers offered free international calling and texting to and from the Philippines
in order to allow customers to call their loved ones and to facilitate the coordination of the
massive international relief effort.
6
Without the use of automated text message technology, it
would have been infeasible for these carriers to communicate this offer to their customers.
7
Indeed, other federal agencies, including the Department of Health and Human Services, have been
promoting text messaging as a way to benefit Americans.
8
Some agencies even require companies to
make a certain number of calls to consumers.
9
Additionally, companies can be obligated under state law
to contact their customers.
10
4
Letter from Elizabeth P. Hall, Vice President, Office of Government Affairs, Anthem, Inc., to Marlene H. Dortch,
FCC, CG Docket No. 02-278, at 5 (filed Apr. 6, 2015) (Anthem Apr. 6, 2015 Ex Parte Letter) (citing Teresa N.
Harrison, A Randomized Controlled Trial of an Automated Intervention to Improve Blood Pressure Control, 15(9) J.
Clinical Hypertension 650 (Sept. 2013)).
5
Letter from Al Mottur, Counsel to Nelnet, to Marlene H. Dortch, FCC, CG Docket No. 02-278, at 2 (filed Mar. 12,
2015).
6
Comments of CTIA – The Wireless Association, CG Docket No. 02-278, at 2 (filed Mar. 10, 2014).
7
Id.
8
See, e.g., Anthem Apr. 6, 2015 Ex Parte Letter at 4 (citing U.S. Department of Health and Human Services, Health
Resources and Services Administration, Using Health Text Messages to Improve Consumer Health. Knowledge,
Behaviors, and Outcomes: An Environmental Scan, at 27 (May 2014) (Noting that HHS had reviewed more than
100 studies on the use of text messaging and concluded: “The trends towards widespread ownership of cell phones
and widespread text message use across virtually all segments of the U.S. population will continue to support the
spread of health text messaging programs. This [review of studies] provides encouraging evidence related to the use
of health text messaging to improve health promotion, disease prevention, and disease management.”)).
9
Comments of Student Loan Servicing Alliance, CG Docket No. 02-278, at 5 (filed Mar. 16, 2015) (“Federal
student loan servicers are required to make repeated attempts to contact delinquent borrowers to see if there are
ways that the servicer can assist the borrower in avoiding delinquency and default – Is the borrower entitled to a
deferment? Is there a new repayment plan that would help the borrower meet his/her obligation to repay? Would a
temporary forbearance help the borrower through a difficult period?”) (citing 34 C.F.R. § 682.411, which requires
lenders in the federal student loan programs to make a certain number of phone calls to delinquent borrowers at
various phases of delinquency); Wells Fargo Jan. 26, 2015 Ex Parte Letter at Exh. 3. See also Comments of
(continued....)
8085
Federal Communications Commission FCC 15-72
The record also shows that these types of services are popular with consumers, as long as they
provide timely and relevant information:
· Health Care: “One survey of users of a ‘safety net’ hospital’s emergency room showed that
patients preferred text messaging over other forms of communication, and only 15 percent did not
want appointment reminders and notifications of expiring insurance.”
11
“This consumer
receptiveness is confirmed by Anthem’s own experiences. Anthem collects ‘opt-out’ requests by
members who do not desire to receive health-care messages. Anthem is receiving an opt-out rate
for non-telemarketing calls of approximately .35 percent.”
12
· Energy: “Southern Company surveys indicate that customers would like outage and restoration
notifications, and prefer communications via text message or telephone call, with email being the
least requested method of contact.”
13
“In fact, some utilities report that they more frequently
receive complaints from customers when they have not been proactively notified of service
interruptions than about having received a notification.”
14
· Education: “[A]t the beginning of each academic year, [Fairfax County Public Schools (FCPS)]
requires potential message recipients to provide their telephone numbers and email addresses for
contact purposes, as well as additional emergency contacts. … In many cases, the preferred
method of contact is via the recipient’s wireless telephone number, either as a telephone call or a
text message (or both). This reflects the increasing number of students, parents, and others who
rely on wireless devices to obtain information.”
15
“The number of individuals requesting to have
phone contacts removed from the FCPS database has been very small. Since July 1, 2014, FCPS
sent 53,342 automated messages with 2,711,387 phone calls placed, drawn from a phone contact
population of 449,909. Of that population, FCPS processed 634 requests to remove phone
contacts from receiving future messages (0.14% of the total phone contact population).”
16
(...continued from previous page)
Citizens Bank, N.A., CG Docket No. 02-278, at 11 (filed Mar. 12, 2015) (noting that President Obama’s FY 2016
Budget Proposal proposed to clarify that the use of ATDS and prerecorded voice messages is allowed when
contacting wireless phones in the collection of debt owed to or granted by the United States – to ensure that debt
owed is collected as quickly and efficiently as possible) (citations omitted).
10
Reply Comments of Edison Electric Institute & American Gas Association in Support of Petition for Expedited
Declaratory Ruling, CG Docket No. 02-278, at 7 (filed Apr. 10, 2015) (Edison Electric Apr. 10, 2015 Reply
Comments) (“The comments demonstrate that many state regulators either mandate or strongly encourage customer
notifications regarding storm alerts, outage notifications, and service restoration.”).
11
Anthem Apr. 6, 2015 Ex Parte Letter at 6 (citing Leah Zallman, et al., Access to and Preferences for Text
Messaging for medical and Insurance Reminders in a Safety Net Population, Cambridge Health Alliance,
Department of Medicine et al., available at http://chiamass.gov/assets/docs/r/pubs/14/text-sgim-final.pdf (last visited
April 1, 2015)).
12
Id. at 7.
13
Edison Electric Apr. 10, 2015 Reply Comments at 3 (citing Comments of Southern Company on the Edison
Electric Institute and American Gas Association Petition for Declaratory Ruling at 4, CG Docket No. 02-278 (filed
Mar. 26, 2015)).
14
Id. at 4.
15
Fairfax County Comments on Blackboard, Inc. Petition for Expedited Declaratory Ruling, CG Docket No. 02-
278, at 5 (filed Apr. 15, 2015) (FCPS Apr. 15, 2015 Comments).
16
Declaration of Maribeth Luftglass, Assistant Superintendent and Chief Information Officer, Fairfax County Public
Schools, in Support of Reply Comments of Blackboard Inc., CG Docket No. 02-278, at 2 (dated May 7, 2015)
(FCPS Declaration) (attached to Reply Comments of Blackboard Inc., CG Docket No. 02-278 (filed May 7, 2015)).
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Federal Communications Commission FCC 15-72
The Commission’s unfathomable action today further expands the scope of the TCPA and sweeps
in a variety of communications either by denying relief outright or by penalizing companies that dial a
number that, unbeknownst to them, has been reassigned to someone else. Indeed, the order paints
companies from virtually every sector of the economy as bad actors, even when they are acting in good
faith to reach their customers. Incredibly, it even concludes that consumers experience a real and
cognizable harm—an intrusion of privacy—by receiving as few as two stray calls or texts.
In a quest to protect consumers against abusive debt collection calls—that are already barred by
other federal laws
17
—the order will force companies acting in good faith to discontinue valuable services
altogether.
18
In fact, this is happening already.
19
We cannot hold millions of legitimate businesses
hostage to a few bad actors that will disregard the law, no matter which agency or statute is involved.
To be sure, the FCC narrowly selects certain calls and texts it thinks consumers should receive
and allows them under very limited circumstances. I approve of any relief contained in the item to the
extent it is granted, but caution that it may not be as helpful as some would claim. I’m not even sure it is
workable. Otherwise, the decisions today will make it much harder for consumers to receive information
that they want and need, and will discourage companies from pursuing services that consumers might find
beneficial. Therefore, I strongly dissent from the remainder of the order.
Scope of the TCPA
Starting with a threshold issue, I disagree with the premise that the TCPA applies to text
messages. The TCPA was enacted in 1991 – before the first text message was ever sent. The
Commission should have had gone back to Congress for clear guidance on the issue rather than shoehorn
a broken regime on a completely different technology.
Definition of Autodialers
The order also impermissibly expands the statutory definition of an “automatic telephone dialing
system” (also known as an autodialer or ATDS) far beyond what the TCPA contemplated. There are
several problems with the new definition, which stem from FCC’s refusal to acknowledge a simple fact:
to meet the definition of an autodialer, all of the statutory elements must be present.
20
17
See, e.g., Wells Fargo Jan. 26, 2015 Ex Parte Letter at Exh. 3 (listing a variety of statutes that govern collection
practices).
18
See, e.g., Twitter Apr. 22, 2015 Comments at 12 (“In truth, the only way that Twitter can realistically avoid
making “calls” to recycled cell phone numbers is simply to stop sending texts altogether. That outcome is bad for
both Twitter and its users. Twitter can only imagine the backlash if it announced it was terminating the delivery of
Tweets by text to users who asked to receive them that way.”).
19
See, e.g., Abercrombie May 13, 2015 Comments at 3-4 (“Indeed, Abercrombie has eliminated the distribution of
text messages to particular customers based solely on their carriers.”); Letter from Harold Kim, U.S. Chamber
Institute for Legal Reform and William Kovacs, U.S. Chamber of Commerce to Marlene H. Dortch, FCC, CG
Docket No. 02-278 at 4 (filed Apr. 23, 2015). (“Concern over TCPA liability already has led some businesses to
cease communicating important and time-sensitive information via voice and text to consumers.”).
20
See, e.g., Letter from Monica Desai, Counsel to ACA International, to Marlene H. Dortch, FCC, CG Docket No.
02-278, at 3-4 (filed Jan. 20, 2015) (noting that “in order for any equipment to be an ATDS under the TCPA, it must
meet the statutory definition given by Congress” and that the FCC cannot “nullify or alter the statutory definition”).
Indeed, 35 trade associations and business groups, representing hundreds of thousands of U.S. companies and
organizations from across the U.S. economy, noted that Congress cannot have intended these expansive readings of
the TCPA, and that applying the statute in the manner that Congress intended, as expressed through the specific
language Congress enacted, would “neither ‘gut’ the TCPA nor ‘open the floodgates’ to abusive calls.” Letter from
35 Associations to Chairman Wheeler, FCC, CG Docket No. 02-278, at 2-3 (filed Feb. 2, 2105).
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Federal Communications Commission FCC 15-72
First, the TCPA defines an autodialer as equipment that “has the capacity” to perform specific
functions. Therefore, it seems obvious that the equipment must have the capacity to function as an
autodialer when the call is made not at some undefined future point in time.
21
Moreover, the TCPA bars
companies from using autodialers to “make any call” subject to certain exceptions. This indicates that the
equipment must, in fact, be used as an autodialer to make the calls.
22
Not so according to the order. Equipment that could conceivably function as an autodialer in the
future counts as an autodialer today. Indeed, the new definition is so expansive that the FCC has to use a
rotary phone as an example of a technology that would not be covered because the modifications needed
to make it an autodialer would be too extensive. That is like the FAA regulating vehicles because with
enough modifications cars and trucks could fly, and then using a skateboard as an example of a vehicle
that does not meet the definition.
Multiple courts have rejected this overly expansive interpretation; for example:
The Court declines to expand the definition of an ATDS to cover equipment that merely
has the potential to store or produce telephone numbers using a random or sequential
number generator or to dial telephone numbers from a list without human intervention.
Equipment that requires alteration to perform those functions may in the future be
capable, but it does not currently have that capacity…. The mere fact that defendants'
modem could, if paired with different software, develop the requisite capability is not
enough under the TCPA ….To hold otherwise would subject almost all sophisticated
computers and cell phones to TCPA liability, a result Congress surely did not intend.
23
What is the FCC’s response? That smartphones don’t appear to be autodialers at this time, but the FCC
will continue to monitor complaints and litigation “regarding atypical uses of smartphones”.
24
That
should not provide any comfort to anyone.
25
21
See, e.g., Wells Fargo June 5, 2015 Ex Parte Letter at 10 (clarifying that “capacity” must mean current ability –
not hypothetical future ability – is consistent with the plain language of the statute (which is written in the present
tense: “has” the capacity, not “could have” the capacity)). “Otherwise, the TCPA may become vulnerable to the
argument that it is constitutionally overbroad.” Id. (citing Aja de Los Santos v. Millward Brown, Inc., United States’
Memorandum in Support of the Constitutionality of the Telephone Consumer Protection Act, 2014 U.S. Dist. Ct.
Pleadings LEXIS 3897 (S.D. Fl. Jan. 31, 2014); Aja de los Santos v. Millward Brown, Inc., Order Denying
Defendant’s Motion to Dismiss Plaintiff’s Second Amended Complaint, 2014 U.S. Dist. LEXIS 88711 (S.D. Fl.
June 29, 2014)).
22
Thus, if the equipment was not used as an autodialer—for example, because the equipment lacked the present
capacity or because calls were made with the aid of human intervention—then it would not meet the statutory test.
See Letter from Steven A. Augustino, Counsel to Five9, to Marlene H. Dortch, FCC, CG Docket No. 02-278 (filed
June 11, 2015) (Five9 June 11, 2015 Ex Parte Letter).
23
Gragg v. Orange Cab Co., Inc., 995 F. Supp. 2d 1189, 1196 (W.D. Wash. 2014). See also Marks v. Crunch San
Diego, LLC, 55 F.Supp.3d 1288, 1291-1292 (S.D. Cal. Oct. 23, 2014); Glauser v. GroupMe, Inc., 2015 WL 475111
*3-4 (N.D. Cal. Feb. 4, 2015);
24
Supra para. 21.
25
It is also troubling that the order could sweep in other sophisticated non-ATDS equipment with beneficial features
including: helping companies honor consumer preferences for receiving calls, including times of day, specific dates,
and which number(s); improving the ability of callers to honor “do not call” requests; and helping govern the
frequency of call attempts. See, e.g., Letter from Monica S. Desai, Counsel to Wells Fargo, to Marlene H. Dortch,
FCC, CG Docket No. 02-278, at 10 (filed June 5, 2015); Comments of American Financial Services Association,
CG Docket No. 02-278, at 4 (filed Dec. 2, 2013) (using a predictive dialer substantially reduces the likelihood of
human error); Comments of Dial America Marketing, Inc., CG Docket No. 02-278, at 4-5 (filed Dec. 13, 2013)
(continued....)
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Federal Communications Commission FCC 15-72
The real concern seems to be that, if capacity means “present capacity” or “current capacity”,
companies would game the system. Specifically, they might claim that they aren’t using the equipment as
an autodialer, but are secretly flipping a switch to convert it into one for purposes of making the calls. I
don’t think we should start with a presumption that companies are intentionally breaking the law. But it
seems that this could be handled as an evidentiary matter. If a company can provide evidence that the
equipment was not functioning as an autodialer at the time a call was made, then that should end the
matter. For example, a company could show that the equipment was not configured as an autodialer, that
any autodialer components were independent or physically separate, that use as an autodialer would
require a separate log in, or that the equipment was not otherwise used in an autodialer mode.
26
Second, the order misreads the statute by including equipment that merely has the capacity to dial
from a list of numbers. That’s not what the TCPA says. It makes clear that the telephone numbers must
be stored or produced “using a random or sequential number generator”. Therefore, calling off a contact
list or from a database of customers, for example, does not fit the definition. As one court put it:
“Random or sequential number generator” cannot reasonably refer broadly to any list of
numbers dialed in random or sequential order, as this would effectively nullify the entire
clause. If the statute meant to only require that an ATDS include any list or database of
numbers, it would simply define an ATDS as a system with “the capacity to store or
produce numbers to be called”; “random or sequential number generator” would be
rendered superfluous. This phrase’s inclusion requires it to have some limiting effect.
When a court construes a statute it should, if possible, do so as to prevent any clause,
sentence, or word, from being superfluous or insignificant. It therefore naturally follows
that “random or sequential number generator” refers to the genesis of the list of numbers,
not to an interpretation that renders “number generator” synonymous with “order to be
called.”
27
Moreover, the fact that the FCC previously stated that dialing from a list is sufficient is unavailing
because “[t]he [FCC] does not have the statutory authority to change the TCPA’s definition of an
ATDS.”
28
Third, the Commission previously clarified that to be considered “automatic”, an autodialer must
function “without human intervention”.
29
Therefore, it should be clear that non-de minimis human
(...continued from previous page)
(computer call management equipment enables companies to ensure that numbers are dialed in an appropriate time
period, to regulate the number of times the phone will ring before disconnection and to enable the tracking of call
details useful in future disputes). See also Five9 June 11, 2015 Ex Parte Letter (“Interpreting an ATDS to
encompass systems with the future capacity, after modification, to store or produce random or sequential numbers
not only would contradict the plain language of the statute, it would deprive consumers of the benefits of call
management technology.”).
26
See, e.g., Modica v. Green Tree Servicing, LLC, 2015 WL 1943222 *3 (N.D. Ill Apr. 29, 2015).
27
Marks, 55 F.Supp.3d at 1292. See also Griffith v. Consumer Portfolio Serv., Inc., 838 F.Supp.2d 723, 725 (N.D.
Ill. 2011) (“‘Random number generation’ means random sequences of 10 digits, and ‘sequential number generation’
means (for example) (111) 111-1111, (111) 111-1112, and so on.”); Dominguez v. Yahoo!, Inc., 8 F. Supp. 3d 637,
643 (E.D. Pa. 2014) (“[Plaintiff’s] definition of the term ‘sequence’ or ‘sequential’ fails to raise a material dispute of
fact, since it focuses on the manner in which text messages are sent, not the way in which the numbers are
generated.”).
28
Marks, 55 F.Supp.3d at 1292.
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Federal Communications Commission FCC 15-72
intervention would disqualify it from being an autodialer.
30
This is important because there is litigation
around the country regarding the level of human intervention. Yet the order refuses to provide any
additional clarity, claiming that this must be done through a case-by-case determination. In fact, the order
increases confusion by implying that calls that are manually dialed from equipment that could be used as
an autodialer would still count as autodialed calls because the equipment has the potential to be an
autodialer—even though the calls would not have been made absent that human intervention (i.e., the
manual dialing).
31
Fourth, the distinction drawn between different types of apps is without merit. While it is true
that different apps may require different levels of engagement by the user before sending messages to the
user’s contacts, no messages would be sent at all but for the user signing up for the service. It is
important that the user be aware that all contacts will receive a message. But assuming that is true, it is
the user that should be deemed to initiate the call, not the app, as these type of messages would not be
made but for the human intervention of the user. If certain recipients do not want to receive messages, it
is not unreasonable to expect them to take that up with the user, not the app provider.
Reassigned Numbers
Every day, an estimated 100,000 cell phone numbers are reassigned to new users.
32
As a result,
numerous companies, acting in good faith to contact consumers that have consented to receive calls or
texts, are exposed to liability when it turns out that numbers have been reassigned without their
knowledge.
Today’s order offers companies fake relief instead of a solution: one free pass. That is, if a
company makes a single call or text to a number that has been reassigned, the company will not be liable
for that single contact. But that construct assumes that the recipient picks up the phone or responds to the
text. In many cases, that won’t happen, subjecting the company to liability for any subsequent calls or
texts. All we’ve done is moved the point of liability for reassigned number situations from call one to call
two. And if a call is made to a wrong number (i.e., misdialed) there’s no free pass at all.
Companies have pointed out that a one free pass rule can make things worse for them and for
their customers.
33
If that one call goes to voicemail and the message doesn’t state who is at the number,
or if a call is answered but dropped before the recipient’s identity is revealed, they have no choice but to
(...continued from previous page)
29
See, e.g., Rules and Regulations Implementing the Telephone Consumer Protection Act, CG Docket No. 02-278,
Report and Order, 18 FCC Rcd 14014, para 132 (2003) (clarifying that the “basic function” of an ATDS is to dial
numbers “without human intervention”).
30
Gragg, 995 F. Supp. 2d at 1194 (concluding that, if “human intervention is essential” to a system, then that system
is not an autodialer). “Commenters have noted that preview dialers, ‘click to call’ systems and other technologies
requiring a user to select the number to be dialed.” Five9 June 11, 2015 Ex Parte Letter (citing Comments of Sirius
XM Radio Inc., CG Docket No. 02-278, at 15 (filed May 18, 2015) (preview dialing is the functional equivalent of
manual dialing); Comments of the U.S. Chamber of Commerce, CG Docket No. 02-278, at 4 (filed Dec. 19, 2013)
(“human intervention is the key factor;” manually entering all digits and “oneclick” dialing are equivalent
processes)).
31
The order states that nothing in the TCPA prevents callers from manually dialing; for example, to discover
reassigned numbers. However, the order also implies that calls that are manually dialed from equipment that could
be used as an autodialer would still count as autodialed calls. Therefore, manual dialing may not actually be a viable
option for those seeking to avoid liability.
32
Twitter Apr. 22, 2015 Comments at 3; Stage Stores, Inc. Petition for Expedited Declaratory Ruling and
Clarifications, CG Docket No. 02-278, at 3 (filed June 3, 2014).
33
See, e.g., Wells Fargo June 5 Ex Parte Letter at 3-6.
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Federal Communications Commission FCC 15-72
refrain from contacting that number in the future.
34
In fact, these rules even apply to calls that are not
connected. That is inconsistent with the statute.
35
But, moreover, what is the harm in seeing a missed call
on your smartphone screen?
Indeed, we may have provided a new way for consumers acting in bad faith to entrap legitimate
companies. A person could take a call, never let on that it’s the wrong person, and receive subsequent
calls solely to trip the liability trap. After all, the order is very clear that there is absolutely no duty
imposed on consumers to let companies know they have reached the wrong person. In fact, the order
expressly rejects a bad faith defense against call and text message recipients that intentionally deceive the
caller or sender in order to induce more liability. Therefore, it won’t be long before the apps or websites
that help consumers manufacture TCPA lawsuits include this as the latest example.
36
The record shows that one free pass is particularly problematic for informational texts, such as
reminders, where no response is expected or routinely provided.
37
In those cases, companies will use up
the free pass and still have zero indication as to whether they reached the right number. Some may have
no choice but to discontinue the texts. That risks angering consumers that had specifically requested
texts, for example, to remind them to pay a monthly bill, but then miss a payment because they didn’t get
a reminder.
Moreover, the idea that, after one call, a caller would have “constructive knowledge” that a
number has been reassigned—even if there was no response—is absolutely ludicrous. The FCC expects
callers to divine from mere silence the current status of a telephone number. In doing so, it reads the
statute to “demand[] the impossible.”
38
Think about this in the context of Twitter, which consumers can
set to text if anything happens involving them. Before Twitter can even realize the number has been
reassigned, they are already liable for hundreds or perhaps thousands of “violations”. The only solution is
to stop the practice in its entirety.
34
See, e.g., Genesys June 11, 2015 Ex Parte Letter at 1-2 (“The ‘one call attempt’ standard will force companies to
take customers off of calling lists, or off of texting lists, for not responding to a text or not answering a phone call.
This will result in the unintended consequence of companies having to stop numerous consumer beneficial, normal
and expected communications, or risk being faced with potentially catastrophic TCPA liability.”).
35
See, e.g., Wells Fargo June 5 Ex Parte Letter at 2 (“Congress used two different phrases in two distinct sections of
the TCPA to create two distinct triggers for liability. Under the statute, it is unlawful to ‘make’ a call – not merely
to ‘attempt’ a call – to a cell phone using an automatic telephone dialing system (ATDS) without prior express
consent… By contrast, Congress determined that call ‘initiation’ triggers liability in the context of pre-recorded
voice messages to landlines even if the call is not placed through an ATDS.”) (citing Save Our Valley v. Sound
Transit, 335 F. 3d 932, 960 (9th Cir. 2003) (“We generally assume that when Congress uses different words in a
statute, it intends them to have different meanings.”)).
36
For example, one Android App called “Block Calls Get Cash” – marketed by a self-described consumer
protection law firm – purports to help those who download it determine whether they have a claim under the TCPA.
The app’s website states that “with no out-of-pocket cost for the app or legal fees, its users will ‘laugh all the way to
the bank.’” Reply Comments of the U.S. Chamber of Commerce, CG Docket 02-278, at 4 (filed Dec. 1, 2014)
(citing Lawsuit Abuse? There’s an App for That, U.S. Chamber Institute for Legal Reform (Oct. 29, 2014),
http://www.instituteforlegalreform.com/resource/lawsuit-abuse-theres-an-app-for-that/).
37
See, e.g., Genesys June 11, 2015 Ex Parte Letter at 2 (“It does not benefit consumers to force callers to freeze
such communications simply because a consumer did not pick up a call or respond to a text. Indeed, there is no
expectation by consumers that they should have to respond to texts providing information such as power outage
notifications or product recalls.”).
38
Rules and Regulations Implementing the TCPA, CG Docket No. 02-278, Order, 19 FCC Rcd 19215, 19219 (2004)
(quoting McNeil v. Time Ins. Co., 205 F.3d 179, 187 (5th Cir. 2000)).
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Federal Communications Commission FCC 15-72
The FCC points to a list of suggestions in the record to help callers determine whether a number
has been reassigned, such as checking a numbering database. But then the item does not provide any
relief or a safe harbor for employing these suggestions.
Many of these suggestions are good practices that a number of parties routinely employ to
minimize the risk of litigation over reassigned numbers.
39
But they are not foolproof, either individually
or collectively, so without a safe harbor there is still substantial litigation risk.
40
For example, the
database contains at best 80 percent of wireless numbers and is not updated in real time.
41
Many commenters noted the impracticability of determining whether a number has been
reassigned before calling or texting. For example:
· Fairfax County Public Schools: “The messages FCPS sends are critical to and expected to be
received by FCPS’s school community, especially in a threat or emergency situation.”
42
“It
would be impossible for FCPS to confirm whether a wireless telephone number is being used by
the same recipient that gave FCPS consent before sending each automated message. The biggest
advantage in using automated messages - reaching a large number of people as quickly as
39
See, e.g., Wells Fargo Jan. 26, 2015 Ex Parte Letter at Exh. 8. See also Petition for Declaratory Ruling of
Consumer Bankers Associations, CG Docket No. 02-278 (filed Sept. 19, 2014) (CBA Petition) (“[C]ompanies often
employ expensive and ultimately inadequate measures to try to ascertain mobile telephone number reassignments.”)
(citing Letter from Monica S. Desai, Counsel to Wells Fargo to Marlene H. Dortch, CG Docket No. 02-278, at 4
(filed May 15, 2014) (Wells Fargo May 15, 2014 Ex Parte Letter); United July 28, 2014 Ex Parte Letter at 5; U.S.
Chamber of Commerce Institute for Legal Reform, The Juggernaut of TCPA Litigation (October 2013)).
40
See, e.g., Wells Fargo Jan. 26, 2015 Ex Parte Letter at 5-6; CBA Petition at 9 (“[E]ven the most stringent
compliance program cannot guarantee that the intended recipient will always be the person who answers the call.”)
(citing Petition for Expedited Declaratory Ruling of United Healthcare Services, Inc., CG Docket No. 02-278 (filed
Jan. 16, 2014); Comments of the American Bankers Association, CG Docket No. 02-278 (filed Mar. 10, 2014);
Comments of ACA International, CG Docket No. 02-278 (filed Mar. 10, 2014); Comments of the American
Financial Services Association, CG Docket No. 02-278 (filed Mar. 10, 2014); Comments of America’s Health
Insurance Plans, CG Docket No. 02-278 (filed Mar. 10, 2014); Comments of the Coalition of Higher Education
Assistance Organizations, CG Docket No. 02-278 (filed Mar. 10, 2014); Comments of Comcast Corporation, CG
Docket No. 02-278 (filed Mar. 10, 2014); Comments of CTIA, CG Docket No. 02-278 (filed Mar. 10, 2014);
Comments of DIRECTV, CG Docket No. 02-278 (filed Mar. 10, 2014); Comments of Dominion Enterprises of
Virginia, CG Docket No. 02-278 (filed Mar. 10, 2014); Comments of Noble Systems Corporation, CG Docket No.
02-278 (filed Mar. 7, 2014); Comments of the Student Loan Servicing Alliance, CG Docket No. 02-278 (filed Mar.
10, 2014); Comments of Time Warner Cable Inc. , CG Docket No. 02-278 (filed Mar. 10, 2014); Comments of the
U.S. Chamber of Commerce, CG Docket No. 02-278 (filed Mar. 10, 2014); Reply Comments of United Healthcare
Services, Inc., CG Docket No. 02-278 (filed Mar. 23, 2014); Wells Fargo May 15, 2014 Ex Parte Letter; Letter from
Monica S. Desai to Marlene H. Dortch, CG Docket No. 02-278 (filed July 21, 2014); United July 28, 2014 Ex Parte
Letter).
41
Supra note 301. See also United July 28, 2014 Ex Parte Letter at 5 (These databases: provide only a confidence
score; often associate incorrect names or nicknames with numbers; do not associate any name with 27% of wireless
numbers; and present additional challenges when a family plan lists a single individual as the “subscriber”.
Moreover, subscriptions to these services are likely cost-prohibitive for small business, non-profit organizations, and
other small entities); CBA Petition at 9 (“Even companies who can afford costly third party systems that purport to
provide accurate data concerning reassigned numbers still cannot escape liability because the database is often
incomplete and does not account for family plan holders.”) (citing Wells Fargo May 15, 2014 Ex Parte Letter at 4;
United July 28, 2014 Ex Parte Letter at 5; U.S. Chamber of Commerce Institute for Legal Reform, The Juggernaut
of TCPA Litigation (October 2013)).
42
FCPS Apr. 15, 2015 Comments at 1-2.
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Federal Communications Commission FCC 15-72
possible - would be lost if FCPS were required to make such a verification every time it sends an
education-related message to a wireless telephone number.”
43
· Abercrombie: “Because there is no comprehensive database of reassigned numbers, the only way
to avoid TCPA liability altogether for calls or texts related to reassigned numbers is to cease
communicating. . . . Indeed, Abercrombie has [already] eliminated the distribution of text
messages to particular customers based on their carriers.”
44
Alternatively, the FCC notes that companies can manually dial numbers. This is not a realistic
solution for most, if not all, of today’s businesses and institutions. For example:
· Twitter: “To implement this approach, a Twitter employee would need to manually call or text
each user and verify his or her identity before each Tweet was automatically sent. Such a
verification process would be prohibitively expensive for Twitter, and annoying and an invasion
of privacy for Twitter users. Given that Twitter users can follow an unlimited number of other
Twitter users and receive all of their Tweets—often dozens or more on a daily basis—Twitter
could not possible implement this suggestion.”
45
· National Council of Higher Education Resources: “On average, one of the four major federal loan
servicers was able to contact only 1,130 borrowers by dialing manually – but reached 13,675
delinquent borrowers per week using automated dialing technology.”
46
For these companies,
being forced to manually dial each call will “increase costs, place unnecessary restraints on finite
resources, and, most importantly, [it would reduce] the number of consumers that can be reached
and informed in a timely manner about ways to avoid default or options to resolve their
default.”
47
· Marketing Research Association: “The increased time involved in cell phone research can be
even more of a problem than cost. Time-sensitive studies, including most political and public
opinion polling, are constantly imperiled. In situations where timely data is as critical as accurate
data, information is not readily deliverable to companies, governments, and other entities that
need to make swift decisions.”
48
There is simply no realistic way for a company to comprehensively determine whether a number has been
reassigned.
49
Moreover, some of the alternatives that the FCC suggests go so far as to be anti-consumer. For
example, the FCC notes that companies could periodically email or mail requests that consumers update
their contact information. But consumers also complain about getting unwanted email and mail. This
just shifts the potential annoyance from one mode of communication to another and is also not foolproof
because numbers could be reassigned in the interim. Furthermore, if companies actually emailed their
customers enough to avoid TCPA liability (at least every day), these emails would get ignored or the
43
Id. at n. 13. The FCPS also expressed concern that “FCPS operations are government-funded. Any expense to
defend against TCPA claims would expend funds that are designated to and essential for the education of America’s
school children.” FCPS Declaration at 3.
44
Abercrombie May 13, 2015 Comments at 3-4.
45
Twitter Apr. 22, 2015 Comments at 10-11.
46
Comments of National Council of Higher Education Resources, CG Docket No. 02-278, at 3 (filed June 5, 2015).
47
Id. at 5-6.
48
Comments of Marketing Research Association, CG Docket No. 02-278, at 6 (filed Dec. 23, 2014).
49
See Wells Fargo Jan. 26, 2015 Ex Parte Letter at Exh. 2 (noting that it is a “myth” that “[a] compliance-minded
business can avoid liability for calls to recycled cell phones by using databases, or through manual calling.”)
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Federal Communications Commission FCC 15-72
recipient would unsubscribe. These alternatives may be a convenient dodge for the FCC, but they are not
practical or desirable for businesses or consumers.
50
Additionally, the FCC notes that companies could require consumers that give consent to notify
those companies when they relinquish their numbers. If they do not, the FCC observes that “the caller
may wish to seek legal remedies for violation of the agreement.”
51
In other words, the FCC thinks it’s
reasonable to have companies sue their own customers.
Sadly, there were reasonable options that the Commission rejected. In particular, a number of
petitioners and commenters asked the FCC to interpret “called party” to mean the “intended recipient”.
52
This commonsense approach would have allowed a company to reasonably rely on consent obtained for a
particular number. Otherwise, “[i]f consent is lost through events about which the caller is totally
unaware and has no control, every call carries a $500 price tag and the consent exception becomes
illusory, contrary to the intent of Congress.”
53
The real concern with this obvious solution seems to be that companies would continue to make
calls even after they have been informed that they’ve reached the wrong person. Here again, I don’t think
we should start from the presumption that the vast majority of businesses are bad actors. In fact, parties
made clear in the record that there could be liability for subsequent calls made to a wrong number after
actual knowledge was obtained and a reasonable time to remove the number had passed.
54
It makes no
sense that legitimate businesses would knowingly waste time calling people that aren’t their customers, at
least with respect to informational calls or texts.
Moreover, the idea that a recipient should have no responsibility whatsoever to notify a company
that they reached the wrong person or even to be truthful and act in good faith is preposterous. I was
shocked to read one cautionary tale:
By the time Rubio’s was aware of the problem [that a number provided by an
employee had been reassigned], hundreds of Remote Messaging alerts were
received by the wireless subscriber with the reassigned number. Further, the
subscriber with the reassigned number advised Rubio’s that he has solved the
problem by blocking the number assigned to the Remote Messaging system—
50
In addition, to the extent the Commission suggests shifting communications to landline calls or mail, the
Department of Education has pointed at that these methods of communication are particularly ineffective when
trying to communicate with 18-24 year olds, as 32% of 18-24 year olds do not have a landline and students are very
mobile while in college and can change addresses multiple times. Letter from Vanessa A. Burton, Office of General
Counsel, U.S. Department of Education, to Marlene H. Dortch, FCC, CG Docket No. 02-278, at 3 (filed May 21,
2010).
51
Supra note 302.
52
See, e.g., Wells Fargo June 5, 2015 Ex Parte Letter at 7 (supporting such an interpretation and citing other
commenters that agree).
53
Twitter Apr. 22, 2015 Comments at 14 (citing H.R. Rep. No. 102-317 at 17 (1991) (explaining that the exception
was designed to allow companies to send “expected or desired” messages, such as those that “advise a customer (at
the telephone number provided by the customer) that an ordered product had arrived, a service was scheduled or
preformed, or a bill had not been paid”).
54
See, e.g., CBA Petition at 14 (“When the caller learns that a number no longer belongs to the intended recipient,
further calls to the number will justifiably be subject to enforcement and private actions under the TCPA. As such,
the consumer of right of action will appropriately remain intact.”); Wells Fargo June 5, 2015 Ex Parte Letter at 7;
Letter from Harold Kim, Executive Vice President, U.S. Chamber Institute for Legal Reform, to Marlene H. Dortch,
FCC, CG Docket No. 02-278, at 3-4 (filed June 11, 2015).
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and, therefore, no corrective action was needed. All the while, the subscriber with
the reassigned number waited until he received approximately 876 alerts before
filing suit against Rubio’s, thereby increasing his statutory damages against
Rubio’s.
55
It is not unreasonable to expect a recipient to contact the company to inform them of the error. This could
be done through the simple opt-out mechanism that the FCC points to as an example of a best practice for
limiting calls to reassigned numbers—except that it should serve as a safe harbor for companies that use
it. Then, once a consumer had availed itself of this option, the company would be on notice and could be
liable for any subsequent communications. I fail to see how encouraging lawsuits against consumers is a
better outcome than expecting consumers that receive some unintended calls or texts to take some small
step to correct an inadvertent error.
Revocation of Consent for Non-telemarketing Calls
The order also decides that the TCPA includes a right to revoke consent to receive non-
telemarketing calls. But this right appears nowhere in the statute. Instead, the order turns to common law
tort principles to read into the statute a right to revoke consent. Talk about bureaucratic activism.
As a longtime Congressional staffer, I was stunned by this analysis. Usually, we start with the
premise that a statute says what it means and means what it says.
56
If Congress did not address an issue,
then the FCC should not presume to act in its stead. That is especially true when the structure of a statute
and related provisions indicate that the silence was intentional. Congress amended the TCPA in 2005 to
provide a right to revoke consent to receive unsolicited fax advertisements.
57
Therefore, the absence of a
revocation provision for non-telemarketing calls should signal to the FCC that Congress intended no such
right.
I certainly do not understand why the FCC would resort to common law principles before turning
to Congress for guidance or to request a statutory fix. Clearly, this is an area where Congress has been
active—not just on TCPA generally, but also on the very issue of revocation of consent. And I am
particularly wary of placing a thumb on the scale here because it is evident from the legislative history
that, in creating an exception for calls made with “prior express consent”, Congress struck a careful
balance between the privacy interests of consumers and the interests of legitimate businesses in
communicating with their customers.
58
Nevertheless, I would be remiss if I did not express concern about the way in which the
Commission proceeds. Specifically, the order allows consumers to choose any reasonable means to
revoke consent, which can include oral revocation, rather than permitting businesses to designate a
reasonable method, such as an interactive opt-out mechanism. While verbal revocation isn’t unreasonable
per se, there have been instances where a consumer claims, often during the course of litigation, that
consent was orally revoked. If the claim is not truthful, the company will have no record that consent was
55
Rubio’s Restaurant, Inc. Petition for Expedited Declaratory Ruling, CG Docket No. 02-278, at 3 (filed Aug. 11,
2015) (Rubio’s Restaurant Aug. 11, 2015 Petition). Yet, the order rejects Rubio’s request for an affirmative, bad-
faith defense.
56
Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6 (2000) (quoting Connecticut Nat.
Bank v. Germain, 503 U.S. 249, 254 (1992) (“In answering this question, we begin with the understanding that
Congress “says in a statute what it means and means in a statute what it says there.”).
57
Junk Fax Prevention Act of 2005, Pub. L. 109-21, 119 Stat. 359 (codified at 47 U.S.C. § 227(b)(1)(C)).
58
Santander Consumer USA, Inc. Petition for Expedited Declaratory Ruling, CG Docket No. 02-278, at 2-4 (filed
July 10, 2014) (Santander July 10, 2015 Petition); H.R. Rep. No. 102-317 at 10, 17.
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Federal Communications Commission FCC 15-72
revoked. Indeed, asking it to prove that consent was not withdrawn puts the company in the untenable
position of having to prove a negative. In addition, some commenters raised concerns about the prospect
of consumers using non-standard responses to opt-out of texts (such as “decline” or “no thanks”) that
won’t be recognized by their systems, which are programmed to recognize certain words that are standard
in the industry (such as “STOP”).
59
Notably, other pro-consumer statutes contain provisions that require any revocation of consent be
made in writing or through other methods designated by the business.
60
Instead, the order uses those
provisions as evidence that, when Congress intends to specify the means of opt-ing out, it does so. This is
maddening. As discussed above, the TCPA doesn’t contain a revocation provision, so of course it did not
specify how to exercise a non-existent right. Rather, the point that some commenters have made is that if
the FCC decides to read revocation into the TCPA at all, then it should at least read in a written
revocation requirement or allow businesses to designate a reasonable method for revocation, consistent
with other statutes that expressly address this issue.
61
Or, one need look no further than the TCPA itself, where Congress provided that recipients must
submit a request to opt-out of future unsolicited fax advertisements. Specifically, the statute and
implementing rules provide that a request is effective only if it: (a) identifies the telephone number or
numbers of the telephone facsimile machine or machines to which the request relates; (b) is made to the
telephone number, facsimile number, Web site address or e-mail address identified in the sender’s
facsimile advertisement; and (c) the person making the request has not, subsequent to such request,
provided express invitation or permission to the sender, in writing or otherwise, to send such
advertisements to such person at such telephone facsimile machine.
62
59
See Letter from Jennifer Bagg, Counsel to Vibes Media LLC, to Marlene H. Dortch, FCC, CG Docket No. 02-278
(filed June 11, 2015) (“The systems used for mobile marketing must be pre-programmed to recognize certain words
as an opt-out request. In reflection of this technological requirement, the industry standards contain a specific list of
keywords that mobile marketers must recognize as a subscriber opt-out request. Specifically, mobile marketing
systems must recognize the keywords STOP, CANCEL, UNSUBSCRIBE, QUIT, END, and STOPALL as a request
by subscribers to opt-out of a mobile campaign. This is a widely recognized and published set of opt-out keywords
that are used across the industry in calls to actions and terms and conditions.”) (citations omitted).
60
See, e.g., Letter from Burton D. Brillhart, Counsel to Santander Consumer USA, to Marlene H. Dortch, FCC, CG
Docket No. 02-278, at 3 (filed Feb. 13, 2015) (noting that the Real Estate Settlement Procedures Act requires
inquiries to be made in writing, which the Consumer Financial Protection Bureau concluded “strikes the appropriate
balance between ensuring responsiveness’ to consumer requests and complaints and mitigating the burden on
servicers of following and demonstrating compliance with specific procedures with respect to oral notices of
error.”); Letter from Burton D. Brillhart, Counsel to Santander Consumer USA, to Marlene H. Dortch, FCC, CG
Docket No. 02-278, at 3 (filed Aug. 11, 2014) (pointing to statutes that provide for revocation through a designated
method, often in writing, including the Servicemembers Civil Relief Act (SCRA), the Fair Credit Reporting Act
(FCRA), the Health Insurance Portability and Accountability Act (HIPAA), Fair Debt Collection Practices Act
(FDCPA)).
61
Commenters also noted the practical problems with allowing consumers to use any reasonable method. See, e.g,
Letter from Harold Kim, U.S. Chamber Institute for Legal Reform and William Kovacs, U.S. Chamber of
Commerce to Marlene H. Dortch, FCC, CG Docket No. 02-278 at 5 (filed June 11, 2015) (“Many American
companies are large entities with hundreds or thousands of employees and multiple offices, with multiple phone
numbers. Is someone permitted to call any company phone number, or send a letter to any company address, or send
an email to any company email address, or talk to some affiliated entity, and revoke his or her prior consent? In the
middle of a technical support call, can the consumer throw in ‘I revoke my consent for pre-recorded messages’ in
the middle of a help call, when the technical help line would have no idea what to do with such a statement? It
would be impossible for a company to monitor all possible means of communications for such revocations,
particularly oral ones, and so the Commission should rethink adopting a position that consumers can revoke prior
consent by any means they wish.”).
62
47 U.S.C. § 227(b)(2)(E); 47 C.F.R. § 64.1200(a)(4)(v).
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If Congress and the Commission did not find such a procedure to be too burdensome for fax
recipients, I fail to see how it or something similar would be too burdensome for call or text recipients.
For example, one petitioner noted that this could be done (1) in writing at the mailing address designated
by the caller; (2) by email to the email address designated by the caller; (3) by text message sent to the
telephone number designated by the caller; (4) by facsimile to the telephone number designated by the
caller and/or (5) as prescribed by the Commission hereafter as needed to address emerging technology.
63
Or, the FCC could provide a safe harbor for companies that use the interactive opt-out mechanism that it
champions as a way to discover reassigned numbers.
Limited Relief for Certain Petitioners
The order does grant slight relief in a few limited circumstances and very narrowly; including to
enable consumers to receive fraud alerts, data breach information, money transfer information, medical
appointment and refill reminders, hospital registration and discharge information, and home healthcare
instructions. I support the relief to the extent it is provided but would have gone further.
By exempting certain uses, the FCC implicitly concedes that dialing and messaging technologies
can be used to create important and popular services. However, this order fails to exempt many other
beneficial uses, thereby dampening incentives to create other innovative and useful messaging services.
Moreover, the order does not address a number of situations raised in the record; for example,
immunization reminders, utility outage notifications, emergency alerts from schools, and countless other
categories. Some of these uses could be addressed in a future item, and could eventually be deemed
permissible. However, that does not provide much needed certainty or reduce litigation exposure in the
meantime.
Instead, this fact-specific approach means that companies that have not yet filed petitions but
need certainty will have to undertake the expense to file and pursue a petition.
64
I imagine it will be too
risky for others to guess whether their circumstances are close enough, particularly given that the order
engages in very granular—and, in my view arbitrary—line drawing. In many cases, they may simply
discontinue beneficial services altogether.
Furthermore, even the relief granted is limited and potentially unworkable. For example, the
order limits exempted calls made by financial institutions to three per event over a three day period. But I
can envision a scenario where, a week later, the institution determines that the event was broader in scope
than initially anticipated and the institution needs to provide updated information to its customers; for
example, about additional information that was compromised. In fact, this just happened with the breach
of federal government personnel information.
In addition, the relief appears to assume that the right people are contacted. If numbers are
entered into a system incorrectly, for example, then we are back at square one and institutions could be
liable. So a financial institution that sends three texts in a day, as permitted in the order, could still be
sued for the texts. Multiply that by the number of people that may be affected by a data breach and the
risk may be unacceptably high. Therefore, I question whether institutions will even avail themselves of
the supposed exception.
63
Santander July 10, 2015 Petition at 9-10.
64
Indeed, the fact that similar services were addressed and exempted in the record increases uncertainty for those
services that were raised but weren’t granted an exemption and likely will increase these entities’ litigation exposure
if they even choose to continue these services at all.
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It may be that the FCC was hesitant to grant more meaningful relief due to resistance from some
consumer groups. Honestly, I have to question whether these groups truly represented consumers at large
on these issues. I was struck, for example, by a consumer group letter that pushed back against relief for
data breach notifications because “[a]fter a data breach there is little a consumer can do about it, other
than keep an eye on her accounts and her credit.”
65
Thus, a “letter [notice] generally suffices.”
66
That
position seems to be completely out-of-touch with the views of ordinary consumers, and I do not find it to
be credible or useful.
* * *
In sum, I am beyond incredibly disappointed in the outcome today. It will lead to more
litigation and burdens on legitimate businesses without actually protecting consumers from abusive
robocalls made by bad actors. I dissent in part and approve in part for the reasons already discussed.
65
Letter from Margot Saunders, Counsel, National Consumer Law Center to Marlene Dortch, Secretary, Federal
Communications Commission, CG Docket No. 02-278, at 4 (Apr. 28, 2015) (representing NCLC and other
organizations)).
66
Id. at 4.
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