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PACE
Win Brings Sensibility to the TCPA
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Indianapolis,
IN – March 2018 / Newsmaker Alert / The
Professional Association for
Customer Engagement® (PACE) won a decisive victory Friday (March
16) for sensible regulation of the teleservices industry.
In
a unanimous decision (view
the ruling here), the U.S. Court of Appeals for the D.C. Circuit vacated
the Federal Communications Commission’s arbitrary and capricious definition
of an automated telephone dialing system and creation of a one-call safe
harbor for calls to reassigned numbers under the Telephone Consumer Protection
Act (TCPA).
In
its 2015 Omnibus Declaratory Ruling and Order, the FCC held that any system
with the present capacity or potential functionality to operate as an Automated
Telephone Dialing System (ATDS). ATDS meets the definition of an ATDS.
PACE strongly objected to this definition as overly broad and not grounded
in the law, as evidenced by the fact that even a generic smartphone could
be an ATDS under the FCC’s definition. In vacating the FCC’s definition,
the Court agreed, “Those sorts of anomalous outcomes are bottomed in an
unreasonable, and impermissible, interpretation of the statute’s reach.
The TCPA cannot reasonably be read to render every smartphone an ATDS...”
Likewise,
the Court set aside the FCC’s one-call safe harbor for calls to reassigned
numbers as arbitrary and capricious. In its 2015 Order, the FCC defined
the “called party” for purposes TCPA liability as the new subscriber of
a reassigned number but exempted from liability callers who erroneously
made one call without consent to the new subscriber. Industry participants
warned that that this one-call safe harbor was insufficient because in
many instances a caller would not learn from that one call whether the
number had been reassigned (e.g. the call is not answered, the voicemail
is not descriptive, a text message is not returned). The Court not only
vacated the safe harbor, it also recognized the potential for strict liability
to attach under the FCC’s definition of “called party” as the new subscriber
and set the definition aside too.
The
Court did let stand the FCC’s decision to allow consumers to revoke their
consent to be called using any reasonable means that clearly express a
desire not to receive further messages. PACE and other petitioners argued
that the reasonable means test could allow for a consumer to revoke consent
by telling a store clerk that they revoke consent, or another means that
would not fall into a caller’s normal process for recording revocation
of consent. Acknowledging this concern, the Court elucidated that “[C]allers
will have every incentive to avoid TCPA liability by making available clearly-defined
and easy-to-use opt-out methods. If recipients are afforded such options,
any effort to sidestep the available methods in favor of idiosyncratic
or imaginative revocation requests might well be seen as unreasonable.”
Reacting
to this victory, Stuart Discount, PACE CEO, stated, “PACE appreciates that
the Court rightly found that the FCC went too far in its definition of
an ATDS and its treatment of reassigned numbers in its 2015 Order.
PACE
looks forward to working with the FCC over the coming months to develop
reasonable regulations that align with the statutory language and protect
both consumers and callers.”
About
PACE
Founded
in 1988, PACE is the only non-profit trade association dedicated exclusively
to the advancement of companies that engage with customers via the contact
center. The Association promotes its members’ ability to provide outstanding
customer service and sales solutions delivered via omni-channel communication
including voice, email, chat, text and social media. In addition, PACE
provides up-to-date and ongoing compliance education and accreditation
for its members.
From
its National Convention and Washington Summit to its Regional Chapter events,
PACE (www.PaceAssociation.org)
provides the tools and opportunities that allow businesses to become involved
and stay engaged through effective and efficient networking opportunities.
Contact:
Stuart
Discount
Chief
Executive Officer
317-522-2799
PACE |