FCC Being Urged to Reform TCPA on Numerous Fronts

The Federal Communications Commission (FCC) is currently being urged to provide guidance and make rules more clear in its regulation of the Telephone Consumer Protection Act (TCPA). Two separate petitions for clarification have received attention lately, including from a group of U.S. Representatives.

In a letter dated August 1, 15 members of the U.S. House asked the FCC to act on a petition from ACA International to modernize the TCPA by enacting common-sense reforms to allow informational communications to mobile devices.

ACA’s petition was formally accepted by the FCC with a comment period assigned for public input. That comment period has lapsed, but the group of Representatives felt that the FCC should act on some of the recommendations.

ACA’s petition is broad-based, asking the FCC to accomplish the following objectives:

• Confirm that not all predictive dialers are categorically automatic telephone dialing systems.
• Confirm that “capacity” under the TCPA means present ability.
• Clarify that prior express consent attaches to the person incurring a debt, and not the specific phone number provided by the debtor at the time a debt was incurred.
• Establish a safe harbor for autodialed “wrong number” non-telemarketing calls to wireless numbers.

In an unrelated action, the FCC – also on August 1 – issued a public notice asking for comment on another TCPA petition filed by Santander Consumer USA.  Comments are due September 2, 2014, and reply comments are due September 15, 2014.

Santander’s petition requests an expedited declaratory ruling from the FCC to clarify the meaning of “prior express consent” with respect to non-telemarketing calls and text messages to cellular telephones, which include informational messages and debt collection messages under the TCPA.

Santander was the defendant in a pivotal TCPA private action and the petition is urging the FCC to clarify some of the confusion arising from the decision.

In Nelson v. Santander, a Court held that preview dialing (using a dialer with human intervention) violated the TCPA due to the capacity of the telephone system used. That order was subsequently vacated, leaving debt collectors to question the efficacy of preview dialing.