On July 10, 2015, the
Federal Communications Commission (the “FCC” or “Commission”) released its
long-awaited Declaratory Ruling and Order, which was prompted by nearly two
dozen petitions and letters requesting clarifications relating to the Telephone
Consumer Protection Act (the “TCPA”).

New
Concerns for Telemarketers

The recent FCC ruling raises
a number of new issues for telemarketers seeking to comply with the TCPA and
its implementing regulations.  Most
notably:

·      –   Most
calling systems are “autodialers.”  The
FCC’s expansive interpretation of the TCPA’s autodialer definition labels
practically every telemarketing device on the market as an autodialer (and
subject to regulation under the TCPA), even if it is not presently used for
that purpose.

·      –   Prior
consent only valid for one call after a number is reassigned.  If a phone number is reassigned, telemarketers
must now either stop calling the number after one call or obtain the prior
express written consent of the new owner of the number.

·    –     Text
messages must comply with the TCPA.  The FCC reiterated that text messages are
“telephone calls” within the meaning of the TCPA.

·     –    New
exemption for one-time, on-demand text messages.  The Commission determined that a text message
does not violate the TCPA or FCC rules if it: (1) is requested by a consumer;
(2) is a one-time only message sent immediately in response to that specific
consumer request; and (3) contains only the information requested by the
consumer, with no other marketing or advertising information.

·     –    New
exemption for certain app providers.  The FCC has provided additional protections
for certain app providers in connection with text messages delivered via mobile
application. 

Stay
Tuned

This area of the law is
nuanced and in a state of flux.  We will
continue to closely monitor all developments related to the FCC’s ruling in the
months to come.