November 2011: Mobile Informational Call Act: What's At Stake
by Joseph Sanscrainte, an attorney specializing in telemarketing law.
For those just tuning in, Representative Lee Terry (R-NE) introduced the Mobile Informational Call Act on September 22nd, 2011 in order to make some important changes to the Telephone Consumer Protection Act. Currently, the TCPA prohibits the initiation of any telephone call (other than for emergencies or with prior express consent) using an "automatic telephone dialing system" or prerecorded voice to any wireless number. The TCPA defines the key term "automatic telephone dialing system" as "equipment which has the capacity to store or produce telephone numbers to be called using a random or sequential number generator and to dial such numbers."
Congress passed the TCPA in 1991, in an age where "autodialers" were becoming ubiquitous and were, to be frank, being overused. Substantial decreases in calling costs, combined with advances in technology, had created a problem that Congress felt needed to be addressed. The end result was a very clear prohibition against using devices that generate and dial telephone numbers randomly or sequentially to call wireless phones.
Clear to everyone, that is, EXCEPT the FCC. The FCC muddied the regulatory waters when it determined in 2003 that a predictive dialer, a device that pointedly does NOT dial randomly or sequentially generated numbers, was in fact an automated telephone dialing system. With this decision, the FCC instantly made it illegal for anyone to use a predictive dialer to call a wireless number without consent, irrespective of the purpose behind the call. To muddy the waters even further, in early 2008, the FCC issued a ruling finding that "autodialed and prerecorded message calls to wireless numbers that are provided by the called party to a creditor in connection with an existing debt are permissible as calls made with the 'prior express consent' of the called party." Did this ruling mean that ANY cell phone number provided by a consumer in ANY context constituted express consent to call that number? Or did this new interpretation (which was briefly overturned in the California "Leckler" case debacle) ONLY apply in the limited arena of debt collection?
The Terry bill was drafted to directly address the confusion created by the FCC. This bill would:
- Amend the definition of "automatic telephone dialing system" to clarify that, to qualify as such a system, equipment must actually use a random or sequential number generator to produce telephone numbers to be called as well as dial such numbers, rather than simply "store or produce telephone numbers to be called."
- Create a definition of "express prior consent" that clarifies that consent (1) can be oral or written; (2) can be obtained at the point of sale or at another point during the business relationship; and (3) is evidenced by a consumer providing his or her phone number as a contact number.
- Removes from the prohibition on calls to mobile phone numbers using an autodialer or artificial or prerecorded voice (absent consent or an emergency) such calls that are made for a commercial purpose but do not constitute a telephone solicitation.
- Preempts state laws and regulations that relate to the subject matters covered in the TCPA.
The U.S. House of Representatives Energy and Commerce Committee's Subcommittee on Communications and Technology has scheduled a hearing on the Terry Bill for Friday, November 4th, at 9 am. For information on how to contact your member of Congress to support this legislation, the American Collectors Association's Legislative Action Center will enable you to communicate your support.
For more information, contact Joseph Sanscrainte at firstname.lastname@example.org