On July 13, the FCC issued a second notice of inquiry, following its March 23 adoption of a notice of proposed rulemaking, aimed at protecting consumers from robocalls. The rulemaking proposes express authorization for carriers to block illegal robocalls. The related notice of inquiry issued last week seeks comment on possible approaches for carriers to report phone number reassignments to an accessible database.
According to FCC Chairman Ajit Pai, illegal robocalls are “the number one consumer complaint to the FCC from the public.” He estimated that consumers are bombarded with 2.4 billion robocalls each month. The calls at issue violate the Telephone Consumer Protection Act (TCPA) (and other federal and state regulations and laws) which prohibits, among other things, autodialed telephone calls and pre-recorded voice calls to cellular phones and residential phones where a consumer has not provided prior express consent in writing. Text messages and faxes are also within the scope of the TCPA’s prohibitions. The Act imposes hefty statutory damages of up to $1,500 per violation. In certain instances — as with the FCC’s fine imposed last week on platform provider, Dialing Services — third-parties who facilitate these communications are also subject to liability.
The FCC fined Dialing Services $2.88 million for its involvement in 180 robocalls in violation of the TCPA. After issuing a formal warning against the company in 2013, the FCC’s enforcement bureau investigated and determined that the company’s platform was still being used by its customers to make calls in violation of the TCPA. The FCC’s July 13 news release noted that “the Commission has made clear that a third party, such as a platform provider, may be liable under the TCPA if the platform provider is so involved in the placement of a call that it essentially made the call.” In the Dialing Services case, the FCC determined that the company played “a significant role in the illegal robocalls, and thus should be held liable for violating the TCPA.” Specific examples of culpable third-party involvement cited by the FCC included Dialing Services’ automatic blocking of the originating telephone number and enabling of caller ID spoofing as part of its platform for its robocall customers.
According to The 2017 Carlton Fields Class Action Survey, TCPA cases topped the list of the anticipated next wave of class action lawsuits (along with wage and hour cases). Given the TCPA's far reaching provisions, and the potential for large exposure, companies across industries should ensure their practices and products conform to the TCPA’s requirements.
