Complying with the Federal Robocall Law? It’s Hard…

Does your nonprofit send automated text messages to members and supporters as part of its advocacy efforts?  What about prerecorded messages?

New technology has made it easy and affordable for organizations to communicate with supporters, donors, and members of the public.

But organizations can face significant fines if they don’t comply with state and federal communications laws. Recent court cases have clarified several questions that have arisen as technology outpaces the decades-old law.

Background

Congress enacted the Telephone Consumer Protection Act in 1991 to reduce the number of telemarketing and unsolicited prerecorded phone calls. The law took aim at the content of the call (commercial or noncommercial) and whether the call was delivered to a landline, cell phone, or other protected phone line.

Regarding calls to landlines, the law is clear. Telemarketers need prior consent to leave prerecorded messages on landlines. However, nonprofits can initiate an issue advocacy, political, or fundraising call using an artificial or prerecorded voice to a landline without the recipient’s prior express consent. In this case, the term “nonprofits” refers to private foundations, public charities, social welfare organizations, labor organizations, trade associations and, yes, even political organizations (i.e. RNC, Emily’s List, and candidate committees).

While the law’s impact on robocalls to landline phones was relatively straightforward, enforcement has turned to robocalls made to wireless or cell phones as the number of cell phone users has risen and landline use declined. The provision of the law that’s drawn the most litigation prohibits any person from making a call to a cell phone using any “automatic telephone dialing system or artificial or prerecorded voice” without obtaining the recipient’s “prior express consent,” except in the case of certain emergencies. 47 U.S.C. § 227(b)(1)(A).

Over the years, the Federal Communications Commission (FCC) clarified that the law also applies to text messages delivered by an “automatic telephone dialing system” or, as they came to be known, “robotexts.” Therefore, before your organization sends a robotext, you must also obtain the recipient’s prior express consent.

The FCC and federal courts have grappled over two main issues:

• What types of phones and dialing systems constitute “autodialers”?
• When has a recipient given prior express consent to receive a robocall or robotext?

Courts have clarified that prior consent can come from the cell phone subscriber or the customary user of the cell phone.  For the necessary consent to exist, the recipient must have given permission to an organization to call their cell phone; the call must fall within the scope of the consent; and the consent must not have been revoked.[1] Meanwhile,  the issue of reassigned numbers has also become an issue for  enforcement, rulemaking, and litigation.

In 2015, the FCC took action to try to clarify a number of issues that could impact nonprofits’ issue advocacy efforts.

• The FCC tried to establish what equipment qualified as an “autodialer,” saying that any phone that had the future capability of being configured to (A) store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers, was an autodialer.
• If an organization obtained prior consent from person A, but the number was reassigned to person B, the organization would violate the TCPA if it called person B on the wireless number that once belonged to person A. The FCC provided a one-call safe harbor to those calling wireless numbers that had been reassigned to new subscribers.
• The FCC also ruled that callers may not unilaterally designate the acceptable means of revoking consent, but that called parties could revoke consent at any time and through any reasonable means, whether orally or in writing, that clearly expresses a desire not to receive further messages.

Following the FCC’s 2015 actions, litigants challenged the FCC’s rulemaking decisions.

Recent Court Cases

The FCC’s 2015 actions exposed anyone who used a modern smartphone to dial a wireless number to liability under the TCPA, whether or not the smartphone had or used autodialer software to place the call.

In October of 2018, the Ninth Circuit Court of Appeals provided some clarification on what equipment qualifies as an automatic telephone dialing system (ATDS) or “autodialer.” (Marks v Crunch San Diego, NO. 14-56834, 201 U.S. App. 26883 (Ninth Cir. September 20, 2018)). The court clarified that live, individually dialed calls or texts from a smart phone that has not been modified with an autodialer app do not violate the TCPA. The court disagreed with the FCC on item #1 above, when it concluded that an autodialer refers to equipment which either has the capacity to: (1) store numbers and dial them automatically or (2) produce numbers to be called, using a random or sequential number generator, and to dial such numbers automatically. The court further clarified that “automatic” did not mean without any human oversight or control but referred to equipment that could dial numbers automatically, without a human initiating each and every call.

In another case, the D.C. Circuit Court, in a unanimous decision, provided some clarity to litigants who challenged the FCC’s 2015 rules above. (ACA International et al. v Federal Communications Commission, No. 15-211, 2018 U.S App. LEXIS 6535 (D.C. Cir. March 16, 2018)). The court agreed that recipients can revoke their consent to receive robocalls/robotexts by “any reasonable means,” but this still leaves the possibility that companies and cell phone users could contractually limit the means of revocation. However, the court overturned the portion of the FCC’s 2015 rules described in item #2 above; as a result, any autodialed call/text to a reassigned number can now expose the caller to liability for violating the TCPA.

Best Practices

As confusing as all this is, there are some best practices:

• Consider making calls or texts one at a time, with a live person delivering a message.
• Draft consent language broadly to enable your organization, your affiliates, and possibly coalition members to contact recipients about a broad range of issues.
• Keep a record of individuals who have consented to be contacted (the burden is on your organization to prove you had prior express consent).
• Consider technology that can screen out cell phone numbers that get reassigned to new subscribers (although not perfect, this might decrease exposure to liability).
• Develop a system to track and remove individuals who have revoked consent.
• Consider peer to peer technology, which permits a live person to make a call or send a text to people in their contact list.
• ALWAYS check to ensure that you are also complying with state and federal disclosure, disclaimer, and Do Not Call laws.
• Still have questions? It’s best to consult legal counsel to be advised of all the laws that regulate communications.

[1] For additional discussion on “prior express consent” see AFJ’s Robocalling Rules.