January 19, 2021

Volume XI, Number 19

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January 19, 2021

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January 18, 2021

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Bringing it All Together: What Callers in Each Industry Need to Know (Right Now) About the FCC’s Big Late-2020 Rulings on the TCPA and Carrier Call Blocking

You’ve read the coverage on TCPAWorld—the FCC issued two huge rulings in late 2020. One dialed back protections afforded under certain content-specific exemptions to the TCPA. And the second mandated carriers cooperate with Robocall Traceback efforts and set the stage for real-time call blocking notifications and an effective redress mechanism for erroneously blocked calls (but not mislabeling).

But what does it all mean for you?

Let’s start with the FCC’s big ruling reviewing the TCPA’s exemptions for calls to landlines under the Traced Act. The Traced Act required the FCC to review its exemptions and specify who the exemption favors, for what purpose, and how many calls may be permitted pursuant to the exemption. Previously none of these findings were required and the FCC was permitted to—and did—exempt broad categories of calls to landlines from statutory coverage.

So, for instance, every business in America was free to make pre-recorded calls for non-telemarketing purposes to residential landlines without consent. Such calls were simply inactionable under the TCPA.

Well no more.

Arguably the biggest impact of the ruling, then, is on debt collectors, mortgage services, service professionals, airlines, retailers and others making informational or transactional prerecorded calls. These companies previously enjoyed carte blanche protection to contact residential landline subscribers using prerecorded or artificial voice calls without consent. This is true based on FCC findings from 1992 that such calls “do not adversely affect privacy rights.” In response to TRACED Act requirements, however, the Commission has now reversed course and determined that such companies may make no more than three attempts per number per 30 day period without consent. This restriction is particularly painful for debt collectors and servicers as it does not match the CFPB’s 7/7/7 rule under Reg F and the limit applies without regarding to the number of accounts a consumer may have. Additionally, the FCC mandated that all pre-recorded calls made without consent must contain an automated opt out mechanism. For calls that are answered by a live called party (including IVR or avatar calls), the opt out mechanism must permit calls to cease based upon a single key punch. For pre-recorded or artificial voice messages left on a voicemail (including direct drop or avatar messages) the message must include a 800 number where a consumer can call and automatically opt themselves out of future messages. Notably, the Commission’s rules promulgated under 227(d) already require opt out notifications for pre-recorded telemarketing messages, but these rules will not apply to all non-marketing messages made without consent. Moreover, because the opt-out requirement is a condition of making calls without consent, the failure to adhere to the opt-out mechanism requirement arguably enables a direct cause of action under 227(b) as the call is then presumptively made without consent or any applicable exemption.

For research, market surveys, political polling, or similar companies that make noncommercial calls the news is similarly grim. Previously FCC rules permitted these companies to utilize pre-recorded voice messages to contact residential landlines without any level of consent. As with commercial calls, however, these activities must be dialed back significantly. Specifically the FCC’s new rules limit the number of consent-less pre-recorded calls to no more than three attempts per number per 30 day period—an extraordinary change to existing federal regulations that did not limit contact attempts at all.  Moreover, these companies too must offer an interactive opt out mechanism—either a live keypunch functionality for answered calls or a 800 number with a similar automatic opt-out IVR when a message is left. As noted above, whereas existing regulations promulgated under 227(d) already contain this requirement for marketing calls, by conditioning the exemption with the use of these opt-out features the FCC has essentially enabled a private right of action to enforce this provision under 227(b) for call pre-recorded calls made without consent to landlines.

For calls on behalf of Tax-exempt Nonprofit Organizations the rules are just as tough. Whereas charities previously enjoyed favored treatment not just under the TSR but under the FCC’s previous pre-recorded calling rules, the Commission saw no reason to afford more leniency this time around and clamped down on these organizations limiting them to no more than three attempts per number per 30 day period. As with debt collectors, there are no protections for organizations calling on behalf of more than one charity—the limits apply per number called.  Moreover, charities too must offer an interactive opt out mechanism—either a live keypunch functionality for answered calls or a 800 number with a similar automatic opt-out IVR when a message is left. As noted above, whereas existing regulations promulgated under 227(d) already contain this requirement for marketing calls, by conditioning the exemption with the use of these opt-out features the FCC has essentially enabled a private right of action to enforce this provision under 227(b) for call pre-recorded calls made without consent to landlines.

For healthcare providers subject to HIPPA, the rulings hold a little more flexibility. They will be permitted to make up to three prerecorded calls a week (although no more than 1 call per day) to landlines without consent. The FCC specifically set that calling limitation to coincide with the existing rule permitting such organizations to call cell phones without consent for medical notifications (realistically just about every healthcare-related notification qualifies for “urgent” treatment under the cell phone exemption.) As with other forms of commercial calls, the FCC also mandated that healthcare providers offer an interactive opt out mechanism—either a live keypunch functionality for answered calls or a 800 number with a similar automatic opt-out IVR when a message is left. As noted above, whereas existing regulations promulgated under 227(d) already contain this requirement for marketing calls, by conditioning the exemption with the use of these opt-out features the FCC has essentially enabled a private right of action to enforce this provision under 227(b) for every pre-recorded call made to a landline without consent. The Commission also determined to maintain, without change, the healthcare provider exemption respecting non-marketing calls to cell phones, although it declined to extent the protections of the exemption to all “HIPAA ‘covered entities and business associates.’”

Package delivery companies received some good news from the Commission’s order: the FCC elected to preserve wholesale the exemption permitting such companies to advise consumers of a package notification without consent. The Commission found that these notifications serve an important and consumer-friendly function and determined the previous text limits— one notification for each package, with one additional notification for up to two follow-up attempts to obtain a recipient’s signature if a signature is needed for delivery—were appropriate and did not need to be changed.

For banks and finance companies the news is equally good—the FCC did not tinker with its existing fraud notification exemptions, determining that the exemption already strictly limits the use of the exemption and preserved the current notification limit of no more than three calls per event over a three-day period for each affected account.

As to telemarketers and companies calling cell phones the TRACED Act exemption review had no impact on your operations. Telemarketers must still have prior express written consent to use pre-recorded or artificial voice technology (including avatar or soundboard technology) to contact a residential landline. And calls to cell phones were never exempt to begin with and continue to require either express consent, or express written consent, depending on the nature of the call (i.e. transactional/informational or marketing.)

But all of that analysis pertains to only one of the FCC’s big rulings from late last year.

The FCC also issued a tremendously important ruling requiring that carriers must respond to Traceback group efforts to identify the source of illegal Robocalls and take immediate and effective measures to prevent those calls.

Since there is only limited diligence done on the front end to determine whether or not calls are illegal—the Traceback group will rarely, if ever, have up front access to consent records—this new ruling puts pressure on carriers to block first and ask questions later.

Further, these new rules are not limited to “originating” carriers—i.e. companies you contract with—every carrier in the chain from your carrier to the consumer’s network carrier is now under the gun and required to stop traffic that is suspected to be illegal. So that means every carrier in the chain of communication between you and your customer might view it as necessary to block your calls—not just the “terminating” carrier that provides your customer’s cellular service.

It is important, therefore, that all companies relying on telephone outreach with their consumers to understand that contact rates are certain to fall and there is a high risk that legal and important calls will find themselves blocked as carriers scramble to conform to the FCC’s tough new standards.

On the positive side for callers, the FCC has also mandated that carriers must notify callers in real time—using SIPP protocol—when calls are being blocked. Moreover, carriers are required to designate a point of contact to field complaints from callers that their calls are being blocked incorrectly. And the FCC has determined that this redress mechanism must operate swiftly—carriers are required to respond to all redress requests from callers within 24 hours; meaning that a caller will know quickly whether its traffic will be turned back on.

But carriers have a long runway to implement the notification and redress mechanism—carriers may continue blocking calls without redress or notification for one full year. Redress mechanisms will need to be fully implemented by January, 2022, however, assuming no extensions are granted. Further, while the carriers are required to act “reasonably” in assessing caller complaints, the rules do not specify what happens in the event of a dispute between the caller and the carrier regarding the legality and desirability of the call—these matters are likely to wind up in litigation.

Additionally, the FCC has determined not to take any steps with respect to mislabeling of calls. Hence carriers may continue to label your calls “spam” or “potential Robocall” or “suspected scam call,” although legal remedies exist through litigation to resolve egregious cases of misuse.

For more information be sure to check out my big webinar breaking these orders down and you can always feel free to reach out to discuss. I’m a friendly Czar.

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© Copyright 2020 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 7
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About this Author

Eric Troutman Class Action Attorney
Of Counsel

Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems.

Eric has built a national litigation practice based upon deep experience, rigorous...

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