The FCC's Broad New Interpretation of the TCPA Unfairly Puts Legitimate Companies in Greater Danger of Opportunistic Class Action Litigation

The potential for abusive litigation against companies that use telephone technology to efficiently deliver information to, and seek input from, their customers and others, increased significantly June 18, 2015, when the Federal Communications Commission voted to vastly expand the coverage of the Telephone Consumer Protection Act. The Commission’s broad action will allow trial lawyers to exploit vague language to pursue TCPA suits against legitimate companies.

Many of the provisions the FCC adopted in its declaratory ruling — which, ironically, responds to 21 complaints, most of which are from legitimate business interests that were seeking relief from rapacious TCPA class action litigation — puts well-meaning companies under the tyranny of TCPA liability and lacks adequate safe harbor components and exemptions.

The agency has indicated that under the rule, companies must honor a customer's request to stop receiving calls at any time and cannot make more than one call to numbers that have been reassigned to different customers, regardless of whether the previous number holder subscribed to the calls.

The FCC's new interpretation of the word "autodialer" under the TCPA to include devices with even the "potential" to dial or sequence random numbers, even if they must be modified to do so, can be perceived to include a wide range of modern communication devices, including smartphones. The Commission also seems to have completely disregarded the statutory requirement that an autodialer covered by the TCPA must have a number generator.

Companies that contact consumers by telephone should take note of this ruling and be sure they take all steps necessary to keep from violating these broad new interpretations of the law.

Categories: Technology & Privacy