Advertising Law Blog

On September 28, 2015, the Professional Association for Customer Engagement (PACE) held a TCPA Washington Summit at which one of the speakers was Michael O’Rielly of the Federal Communications Commission.  Mr. O’Rielly is one of the FCC’s five commissioners.

In July, the FCC issued a Declaratory Ruling that “clarified” (FCC’s words) the requirements of the TCPA (Telephone Consumer Protection Act).  In the eyes of many, the FCC’s “clarifications” exposed business callers and texters to a greater risk of TCPA lawsuits by holding them responsible for communications to numbers that were reassigned to different people, even if they did not know the number was reassigned.  Commissioner O’Reilly was the lone dissenter to the Declaratory ruling, and he used PACE’s summit as an opportunity to explain his dissension.

In his remarks, which can be viewed in their entirety here, Mr. O’Reilly stated “[The Declaratory Ruling] expanded the scope of the TCPA even further, increasing legitimate companies' litigation risk while doing virtually nothing that would actually protect consumers from abusive calling practices… The problem, however, is that every day, an estimated 100,000 cell phone numbers are reassigned to new users.  And there is no comprehensive database of which numbers belong to which users.  Therefore, it is only a matter of time before a company calls a number that, unbeknownst to them, has been reassigned to someone that hasn’t given consent.”

TAKEAWAY: The FCC does not seem to be finished with the TCPA.  Sounding an ominous tone, Mr. O’Rielly predicted more restrictive rulings will be forthcoming from the FCC: “I had hoped to find some common ground at the Commission on TCPA that would have protected consumers while enabling legitimate companies to reach their customers.  The FCC took a radically different approach, and it is just a taste of the mission creep to come.”