A recent ruling from the Federal Communications Commission in regard to the Telephone Consumer Protection Act could have damaging effects on the nature of how businesses reach consumers.
The National Law Review points out that a ruling last week awarded expansion to the scope of the TCPA by altering what it means to use an autodialer, the process in which consumers can opt out of unwanted calls, and the technicalities of reassigned consumer phone numbers.
Beginning with autodialers, the FCC (News - Alert) has found that any phone or dialer with “a capacity to dial random or sequential numbers,” says the Review, could be considered an autodialer and therefore used in litigation against businesses that use them improperly. This effectively brings in any modern device with the ability to make a call because smartphones and computer systems are fully capable of completing such actions. Whether or not those devices are used in such a manner could become a moot point if plaintiffs are able to argue the grounds that smartphones, computers, and the like are capable.
The FCC also found that consumers must be able to revoke their consent at any time. The Review notes that this may sound like a good thing for consumers, but it could be a headache for businesses. Consumers could potentially use the “any time” framework to revoke consent during an in-store meeting where their primary purpose is to purchase a product. Retail employees could need to become familiar with TCPA regulation just to complete their daily tasks.
Finally, the FCC also ruled that business have only one opportunity to call a number that has been moved from one subscriber to another. This could work if a national databases of numbers existed, but it does not and the FCC has not required that such a list be created. This means it could be in the hands of consumers to let businesses know they are contacting a reassigned number. That sort of system could prove to be inefficient at best and a legal nightmare for businesses at worst.
FCC Commissioners Michael O’Rielly and Ajit Pai have, respectively, noted that the “new definition [of an autodialer] is so expansive that the FCC has to use a rotary phone as an example of a technology that would not be covered” and asked, “How could any retail business possibly comply with the requirement that consumers can revoke consent orally ‘at an in-store bill payment location?’” These objections to the new definitions serve as the highlights to what call centers will have to consider every day. It seems even easier now for companies to be at fault even when they have acted reasonably, and that is not a situation in which any businesses will want to find itself.