AFTER 20 YEARS, IT’S TIME TO UPDATE THE TELEPHONE CONSUMER PROTECTION ACT (TCPA). Howard Waltzman Partner 202 263 3848 hwaltzman@mayerbrown.com

STRICT PROHIBITION ON CALLS TO WIRELESS PHONE NUMBERS USING ASSISTIVE TECHNOLOGIES The TCPA broadly prohibits the use of auto-dialers and artificial/prerecorded voice technology to call wireless numbers, including for informational and other non-solicitation purposes. The TCPA presently prohibits the making of “any call”—including the sending of text messages— using “any automatic telephone dialing system or an artificial or prerecorded voice” “to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call.” The statute expressly exempts from the prohibition emergency calls and calls made with the prior express consent of the called party.

CALLS TO WIRELINE PHONE NUMBERS ARE SUBJECT TO FEWER RESTRICTIONS The TCPA does not place any limits on auto-dialed calls to landline numbers, and the Commission has prescribed a number of significant exemptions to the TCPA’s restrictions on artificial or prerecorded calls to landline numbers. The TCPA makes it unlawful to place a non-emergency telephone call to a residential line “using an artificial or prerecorded voice” without the recipient’s “prior express consent,” with the important caveat that the ban does not apply if the Commission has exempted the call “by rule or order.” The TCPA authorizes the Commission to exempt (i) calls “not made for a commercial purpose” and (ii) commercial calls that the Commission determines will not adversely affect the privacy rights of the called party and do not transmit an unsolicited advertisement. Applying this authority, the Commission has exempted a number of categories of calls, including non-commercial calls, commercial calls that do not include an unsolicited advertisement or constitute a telephone solicitation, and calls to a party with whom the caller has an established business relationship.

The CDC has determined that: AS MOBILE DEVICES BECOME AN ESSENTIAL PART OF OUR LIVES, THE DISPARITY BETWEEN CALLS TO WIRELESS AND WIRELINE PHONE NUMBERS IS INCREASINGLY OUTDATED The CDC has determined that: Over one-quarter of American households use only a wireless phone. The percentage of wireless-only households is 26.6 percent, and approximately 57 million American adults live in a household with only wireless phones. Forty percent of American households receive all or almost all calls on wireless phones. Nearly one out of every six American homes—15.9 percent—receive all or almost all calls on wireless telephones despite having a landline at home. Thus, a total of over 40 percent of American households receive all or almost all calls on wireless devices. This figure is consistent with the recent finding of the GAO that “nearly 40 percent of households rely primarily on wireless devices.” Increasingly fewer American households use only a landline phone. At the opposite end of the spectrum, only 12.9 percent of American households are landline-only, a substantial decline from the figure of 34.4 percent in 2005.

Real-time telephone communications between businesses and their customers provide important consumer benefits. Businesses often need to convey important information to their customers about fraud alerts, school closings, drug recalls, power outages, airline cancellations, truck rolls, and transactional-related information essential to the provision of a multiplicity of services. Such communication ensures that consumers are aware of the unauthorized use of their credit cards, provides them timely notice of flight and service appointment cancellations and drug recalls, and protects them against the adverse consequences of failure to make timely payments on an account. Financial institutions must contact their customers under certain federal regulatory requirements to inform them of security breaches or unauthorized access to consumer information. The U.S. Department of Transportation is currently considering regulations that would require airlines to notify consumers “in a timely manner” about itinerary changes.

THE TCPA NEEDS TO BE AMENDED TO RECOGNIZE THE IMPORTANT CONSUMER BENEFITS OF PROVIDING TIMELY INFORMATION TO CONSUMERS ON THEIR MOBILE DEVICES Preventing the Commission from imposing heightened “prior express consent” requirement that contradicts Congress’s clear intent in enacting the TCPA. The proposal would add a new statutory provision defining the term “prior express consent” to mean “oral or written approval, provided when a person purchases a good or service or at any other point during the business relationship, for the initiation of a telephone call by, or on behalf of, the entity with which the person has an established business relationship.” The proposal would further clarify that “[a] person who provides a telephone number as a contact number evidences consent under this paragraph.” Exempting informational calls from the strict TCPA prohibition on calls to wireless numbers. The proposal would exempt calls “made for a commercial purpose that does not constitute a telephone solicitation” from the baseline prohibition on auto-dialer and artificial/prerecorded voice calls to wireless numbers. Clarifying what constitutes an auto-dialer. The proposal would include within the definition of “automatic telephone dialing system” only “equipment which uses a random or sequential number generator to produce telephone numbers to be called and . . . to dial such numbers.”

THE TCPA NEEDS TO BE AMENDED TO RECOGNIZE THE IMPORTANT CONSUMER BENEFITS OF PROVIDING TIMELY INFORMATION TO CONSUMERS ON THEIR MOBILE DEVICES Providing an expedited consumer complaint process at the FCC. The proposal would modify the TCPA’s private right of action by requiring injured parties to take their complaints to the FCC first. Private suit would be permitted only if the Commission “fails to carry out any of its responsibilities to act upon a complaint.” The FCC would be required to conclude its investigation within 180 days of the complaint being filed and to provide the party that is the subject of the complaint with “a reasonable opportunity to respond.”