The Federal Communications Commission on Friday released its Telephone Consumer Protection Act Omnibus Declaratory Ruling and Order, which takes effect immediately.
The FCC states that the ruling reaffirms the "TCPAs protections against unwanted robocalls, encouraging pro-consumer uses of robocall technology and responding to a number of requests for clarity from businesses and other callers.
The ruling reiterates and simplifies key sections of the TCPA. If a caller uses an autodialer or prerecorded message to make a non-emergency call to a wireless phone, the caller must have gotten the consumers prior express consent or face liability for violating the TCPA. Prior express consent must be in writing if the message is a telemarketing call, but can be either oral or written if the call is informational.
The FCC in a party-line vote last month had approved new robocalling rules that mostly rejected the entreaties of banks and other companies. The rules clearly do not give banks a break with respect to debt collection calls, which have been the subject of much of the litigation against banks.
For bankers, the vote represented a reversal of fortune as earlier this year industry representatives had confidence that the FCC would issue a sympathetic ruling.
TCPA violations are subject to strict liability - $500 for each unsolicited call, or $1,500 if the company intentionally makes a call after the cellphone user denies permission. Callers are liable even if they have the permission of the person they are trying to reach but the phone number has been reassigned to another individual.
The rules passed by the FCC carve out an exemption for the first wrong-number phone call but not for any subsequent calls to that number. An FCC staffer said that the new rules will provide an incentive for companies to take proactive steps, such as confirming the phone number by email, to ensure they are robo-calling the right person.
"The new user of a reassigned phone number shouldn't have to put up with being abused by callers for the old user of the phone number," said FCC Chairman Tom Wheeler, a Democrat.
FCC Commissioner Ajit Pai, a Republican, complained that companies will be liable even if they have no reason to know they are calling a wrong number. "This will certainly help trial lawyers update their business model for the digital age," he said.
Democratic Commissioner Mignon Clyburn voted for the new rules, but also acknowledged that the provisions on recycled phone numbers will cause difficulties for banks and other businesses.
"I am sympathetic to the challenges these companies face, since the absence of a comprehensive database of reassigned numbers may be an issue," she said. "The commission is striking a difficult but necessary balance."
The full text of Fridays ruling is available here.
ACA International, the largest trade association for collection agencies, on Friday filed a lawsuit against the FCC, stating that the ruling is at odds with the original intent of the law. ACA seeks a judicial review of the FCCs ruling to determine whether the FCC exercised its regulatory authority appropriately or if the agency has ignored a controlling statute in order to expand the scope and reach of the TCPA in a way that Congress never intended.