Requests for TCPA Robocall Clarifications Examined by FCC

By Marty Stern and J. Bradford Currier

The Federal Communications Commission is seeking comment on requested clarifications on the rules applicable to autodialed and prerecorded “robocalls” under the Telephone Consumer Protection Act (“TCPA”) in response to a trio of requests filed with the FCC over the summer. The call for comments follows the FCC’s February Report and Order, which revised the TCPA rules applicable to robocall solicitations by: (1) requiring a customer’s prior express written consent before making solicitation robocalls; (2) eliminating the “established business relationship” exemption to the robocall rules applicable to solicitations; (3) requiring companies to establish an opt-out mechanism for such calls; and (4) limiting abandoned calls through the use of predictive dialers. The three requests address separate but interrelated issues regarding how companies may contact consumers under the TCPA.

First, in a petition for an expedited declaratory ruling, the Cargo Airline Association asks the FCC to clarify whether package delivery companies may rely on representations of package senders that package recipients consent to receiving autodialed and prerecorded customer service delivery notifications through their wireless telephones, in connection with a TCPA restriction on autodialed and prerecorded calls to wireless numbers in the absence of prior express consent. The Cargo Airline Association contends that such customer service delivery notifications help to reduce instances of package theft and the provision of a package recipient’s wireless telephone number by a package sender should establish the “prior express consent” necessary for shipping companies to send autodialed and prerecorded delivery notifications. In the alternative, the petition requests the FCC declare that package delivery notifications are completely exempt from the TCPA’s requirement to obtain prior express consent before making autodialed or prerecorded calls to a wireless telephone number.

Second, in a petition for declaratory ruling, Communication Innovators asks the FCC to clarify that “predictive dialer” technologies, that initiate the next phone call while an agent is on the phone with another consumer, which are not used for telemarketing purposes and do not have the ability to automatically dial random or sequential numbers, are not subject to the TCPA’s restrictions on automatic telephone dialing systems. The petition argues that the use of predictive dialer technologies for non-telemarketing, “informational” calls related to fraud alerts, appointment reminders, payment notices, and school closing announcements benefit consumers and do not conflict with the underlying policy of restricting telemarketing robocalls. The petition also notes that, unlike other autodialer systems, predictive dialer technologies allow the consumer to connect to a live operator at any time to address questions or concerns.

Third, in a request for clarification, CallAssistant LLC asks the FCC to clarify that its use of “operator supervised prerecorded call segments” does not violate the TCPA rules. CallAssistant states that its calling technology enables its agents to interact with the call recipient by using the agent’s own voice or by pressing a button to substitute an appropriate audio recording. CallAssistant further states that an agent is always able to hear what the consumer is saying and the consumer may request to speak with a live operator at any time, providing the human-to-human interaction that Congress sought when drafting the robocall provisions of the TCPA. CallAssistant also contends that the interactive nature of its calling technology means that its calls do not implicate the TCPA’s restrictions on robocalls.

Comments on each of the requests for clarification are due on November 15, 2012, with replies due on November 30, 2012.

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