Last week, the Federal Communication Commission’s (“FCC”) Consumer and Governmental Affairs Bureau (“Bureau”) resolved two of the many pending petitions seeking relief and clarification concerning the requirements of the Telephone Consumer Protection Act (“TCPA”) for calls or texts made to wireless numbers.
P2P Alliance Petition
In its first Declaratory Ruling, the Bureau sought to clarify the definition of an automatic telephone dialing system (an “autodialer”). The ruling comes in response to a petition from a coalition of providers and users of peer-to-peer text messaging asking whether its texting is subject to the TCPA’s prohibitions on calling or texting a wireless phone with an autodialer absent an emergency or the called party’s prior express consent. The coalition asserted that its platform “does not include ‘the capacity to . . . store or produce telephone numbers to be called, using a random or sequential number generator’” and instead “requires a person to actively and affirmatively manually dial each recipient’s number and transmit each message one at a time.”
Although the Bureau did not rule on whether any particular platform is an autodialer, it “clarif[ied] that the fact that a calling platform or other equipment is used to make calls or send texts to a large volume of telephone numbers is not probative of whether that equipment constitutes an autodialer[.]” Rather, according to the ruling, “if a calling platform is not capable of originating a call or sending a text without a person actively and affirmatively manually dialing each one, that platform is not an autodialer[.]” The Bureau also reaffirmed “that parties that have knowingly released their telephone number to the caller for a particular purpose” have given consent for autodialed informational calls and texts “within the scope of that consent.” Autodialed marketing calls and texts, however, still require prior express written consent.
The Bureau states it is not resolving the pending dispute regarding the definition of an autodialer and instead relies strictly on the statutory language. In doing so, however, the Bureau appears to approve the narrow statutory definition of an autodialer. The ruling notes that the FCC’s interpretation of the autodialer definition remains pending in the wake of the D.C. Circuit’s 2018 decision that struck the prior interpretation. The Bureau states that until the issue is decided by the full Commission, it “rel[ies] on the statutory definition of autodialer.” Significantly, there is a split among the federal Courts of Appeals over the statutory definition—with the Third, Seventh, and Eleventh Circuits holding that the systems must be capable of storing or producing numbers to be called using a random or sequential number generator to qualify as an autodialer and the Second and Ninth Circuits adopting a broad definition that sweeps in systems that can dial numbers from lists automatically regardless of how the numbers are generated or stored.
Though it is not clear whether Bureau intended to weigh in on this split, the Declaratory Ruling nonetheless states that “whether the calling platform or equipment is an autodialer turns on whether such equipment is capable of dialing random or sequential telephone numbers without human intervention.” In other words, according to the Bureau, “[i]f a text platform is not capable of storing or producing numbers to be called using a random or sequential number generator and dialing such numbers automatically but instead requires active and affirmative manual dialing, it is not an autodialer[.]” Despite these statements, without a decision from the full Commission on the autodialer definition, it remains uncertain how courts will apply this Bureau-level Declaratory Ruling in determining an autodialer’s scope. Until there is further guidance, those contacting consumers with automated systems should continue to ensure they have obtained appropriate consent before sending the communication.
Anthem, Inc. Petition
The second ruling denied a petition filed in 2015 by a health benefit provider, Anthem, involving issues around consent to be called. The order denies Anthem’s request that health care plans and providers need not obtain the TCPA’s requisite prior consent before making automated health care-related calls as long as the consumer has the option to opt out of receiving further calls. The Bureau affirmed that—apart from existing exceptions for COVID-19-related calls and certain exigent calls—consent must be obtained before making the call and that there is no broad exception for health-related communications.
In reaching this decision, the Bureau rejected Anthem’s argument that its existing relationship with the called party effectively constituted consent. The Bureau also rejected Anthem’s request to the extent it relied on an established business relationship exception. It declared that no such exception exists for automated wireless calls and that the FCC had no authority to create one for such calls. (Currently, an established business relationship exemption applies to telemarketing calls to residential lines on the national do-not-call registry, subject to certain limitations.)
Finally, the Bureau rejected Anthem’s request to exempt non-emergency but urgent health care-related automated calls from the TCPA’s consent requirements. In 2015, the FCC created an exception for certain autodialed exigent, health care calls that were free to the wireless called party. The Bureau, however, stated that it had no authority to establish an “urgent circumstances” exception and expressed skepticism that the type of calls identified by Anthem were in fact urgent. Anthem had identified calls to educate consumers about benefits such as case management calls, preventative medicine calls, and calls regarding maintenance of medical benefits.
The order indicates the FCC for now is keeping a tight rein on TCPA exceptions while businesses and consumers await both a Supreme Court decision on whether the TCPA autodialing restrictions violate the First Amendment and the FCC’s statutory interpretation of an autodialer. It also remains to be seen whether these two orders signal an effort by the Commission to clear its backlog of pending petitions.
This document is intended to provide you with general information regarding the FCC's rulings on issues related to texting platforms and the TCPA. The contents of this document are not intended to provide specific legal advice. If you have any questions about the contents of this document or if you need legal advice as to an issue, please contact the attorneys listed or your regular Brownstein Hyatt Farber Schreck, LLP attorney. This communication may be considered advertising in some jurisdictions.