The April 30, 2015 edition of Business Litigation Notes explained the potential danger under the TCPA of automating your customer contacts. That article noted that the Federal Communications Commission had not yet issued its order further defining certain ambiguous issues under the TCPA. On July 10, 2015, the FCC issued its declaratory ruling and order. Despite vigorous dissents from two of the FCC commissioners, the FCC’s order significantly expands the definition of “automated telephone dialing system” and narrows the definition of express written consent for companies to use automated systems to contact consumers, especially on wireless telephones.
Two arguable bright spots in the ruling are the creation of a one-call “Safe Harbor” for calls to wireless numbers that have been reassigned and an exemption for certain financial institutions making identity theft and security breach related calls to consumers. We expect the ruling to engender an even further increase in the number of TCPA class actions, and recent filings are demonstrating just that.
The ruling is available on the FCC’s website at https://apps.fcc.gov/edocs_public/attachmatch/FCC-15-72A1.pdf. Several companies have sued to challenge the FCC ruling, but thus far, no court has taken definitive action.