On July 10, 2015, the Federal Communications Commission issued its highly anticipated “TCPA Omnibus Declaratory Ruling and Order” addressing a number of petitions and comments concerning interpretation of the Telephone Consumer Protection Act of 1991. The Order addresses a wide variety of TCPA topics, including the meaning of certain statutory terms and the application of provisions to today’s technology.  Among other important topics, the Order:

  • Defines (or “reaffirms,” according to the Commission) the FCC’s autodialer definition.
  • Discusses third-party liability for TCPA violations.
  • Tries to clear up ambiguity regarding consent and revocation of consent.
  • Addresses re-assigned cell phone numbers, including the creation of a one-call safe harbor for calls to reassigned numbers under certain situations.
  • Confirms that a one-time text message sent immediately after a consumer’s request for the text does not violate the TCPA or FCC rules or regulations.
  • Exempts certain health-care related messages.
  • Addresses call-blocking technology.

Petitions challenging the FCC’s TCPA Order were filed within days of its July 10 issuance in at least two courts of appeal.  See, ACA Int’l v. Fed. Comm’ns Comm’n, No. 15-1211 (D.C. Cir. filed July 10, 2015) (petition for review), consolidated with Sirius XM Radio, Inc. v. Fed. Comm’ns Comm’n, No. 15-1218 (D.C. Cir. filed July 14, 2015) (petition for review); Prof’l Ass’n for Customer Engagement, Inc. v. Fed. Comm’ns Comm’n, No. 15-2489 (7th Cir. filed July 14, 2015) (petition for review).  Among other arguments, these petitions claim that the Order is arbitrary and capricious, constitutes an abuse of discretion, and exceeds the FCC’s statutory authority.

The TCPA includes statutory penalties of up to $1500 per violation, without any proof of actual damage.  According to a WebRecon report on litigation trends, TCPA lawsuits increased 30 percent from September 2013 to September 2014, from 1,338 to 1,908, including an increase in TCPA class action lawsuits.

Read more:  Perkins Coie Update:  “The July 2015 TCPA Omnibus Declaratory Ruling and Order:  The Good, the Bad, and the Ugly