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FCC rules for carrier robocall blocking, clears developers of some liability

The Federal Communications Commission yesterday passed a proposal from chairman Tom Wheeler, supporting consumers' ability to opt out of robocalling through their wireless carriers, among other developments. 

At an open meeting yesterday, the FCC attempted to address a number of issues surrounding the use of automated calls and texts to consumers? mobile phones for marketing and other purposes that stem from the Telephone Consumer Protection Act. Some possible relief for service providers and app developers came in the form of statements making it clear that the former should not be held responsible for violating messages initiated by marketers using their services while the latter should not have liability when enabling users of their apps to send messages to others. 

?Today, FCC Chairman Tom Wheeler?s proposal to revise the TCPA rules to provide greater protections for consumers passed a vote by the commission,? said Marc Roth, partner in the advertising, marketing and media division at Manatt, Phelps & Phillips.  ?While the final order is not yet public, we know there was much dissention among commissioners, particularly from the republicans, Pai and O?Rielly.  

?While the ruling is generally not favorable for industry, a couple of decisions appear to provide some relief for particular industry sectors and for service providers and texting platforms,? he said. 

Mr. Roth is co-chair of the TCPA Compliance and Class Action Defense group at Manatt, Phelps & Phillips. 

Revoking consent
The FCC attempted to address issues such as how to handle reassigned numbers and newer auto dialers, should there be exceptions for fraud alerts and medication refills and how consent is revoked.  

While the order is not yet public, Mr. Roth attended the open meeting and reports that it is unclear how consumers will be able to block robocalling or how calls will be screened. 

The ruling also addressed the issue of revocation, falling in favor of consumers having the ability to revoke consent anytime they want, using reasonable ways. 

Per Mr. Roth, a dissenting commissioner offered the example of a consumer visiting a McDonalds and telling the server that she does not want to receive calls anymore, which would satisfy yesterday?s ruling.   

The statements made at the meeting also suggest that companies will have strict liability for calling numbers that have been reassigned. 

This is potentially a problem for marketers, as they must rely on third-party databases to which are not always accurate or complete. This challenge was expressed during the meeting but no relief was provided. 
Some exemptions possible
While a broad exemption to TCPA rules for emergency messages and calls was denied, some of the statements suggest consent exemptions are possible for healthcare and financial industries with regard to important medical or treatment notices and identity theft warnings. 
The definition of an auto dialer will be expanded. Newer auto dialers enable marketers to target a specific number. 

The order also reaffirms a previous ruling as well as various court decisions that a text is a call and a consumer has the right to revoke consent. 

Regarding concern with class actions, Mr. Wheeler urged the industry to take this up with Congress, not the FCC. 

?The topics covered by the ruling include consumer opt-out, revocation of consent, reassigned numbers, exemption for emergency calls, and the definition of auto-dialer, though the particulars surrounding these issues are unknown until the order is officially released,? Mr. Roth said.

Final Take
Chantal Tode is senior editor on Mobile Marketer, New York