The freedom from automated calls at random hours of the evening may seem like the true American dream these days as more and more companies rely on these calls to reach out and communicate with customers. Unfortunately, now that the Federal Communications Commission (“FCC”) voted to expand the Telephone Consumer Protection Act (“TCPA”) to include stringent yet vague restrictions on telemarketing robocalls, it may not be a dream for everyone.
In June of this year, in a 3-2 vote, the FCC voted on adding the rule to the TCPA that entails barring companies from using “autodialers” to dial consumers, disallowing more than one phone call to numbers that have been reassigned to different customers, and mandating a stop to calls under a customer’s wishes. These restriction may seem reasonable but dissenting Commissioner, Ajit Pai, recognized that the rule’s broad language will create issues because it does not distinguish between legitimate businesses trying to reach their customers and unwanted telemarketers. Some attorneys have further commented on the rule stating that its use of “autodialer” opens up a can of worms of interpretations and can really be viewed as any device with even the potential to randomly sequence numbers, including a smartphone. Companies using even slightly modernized tactics to reach out to their customer base are now at risk of facing litigation—and it won’t stop there. Businesses that legitimately need to reach out to their customers will be caught between a rock and a hard place as they face a one-call restriction now and may also open themselves up to litigation if a customer decides to take that route.
The FCC Chairman, Tom Wheeler, attempted to quash concerns by stating that “Legitimate businesses seeking to provide legitimate information will not have difficulties.” This statement unfortunately won’t stop plaintiff’s attorneys from greasing their wheels to go after companies who even make “good faith efforts” to abide by the new rule. Attorneys who defend businesses have recognized that the rule is ridden with issues that could potentially harm companies that simply do not have the mechanisms to fully control and restrict repeated calls or the technology that makes those calls. But, long story short, just because this rule has been put in motion, does not mean it will stand as is. Litigation and court action will likely be a natural consequence and that may result in changes for the future. For now, businesses that utilize automated phone calls should be wary of the technology used and attempt to at least keep track of numbers and phone calls made. When in doubt, talk to an attorney to make sure you are taking the appropriate precautions.