Derek: Hello everyone, Derek Johnson with tatango.com.
We are answering TCPA questions today.
And I'm here with a TCPA attorney, John Nelson.
The question we have today is what TCPA issues are pending at the FCC right now?
So, what is the answer?
John: Well, that's a pretty big question.
And I guess in order to get there we need a little bit of back story.
So, a while ago, in March, we had the big DC Circuit case, ACA International.
Derek: And this is 2018?
John: 2018, in which the DC Circuit essentially struck down several different portions of
the TCPA and how the FCC was applying that.
And since then, we've had a lot of activity both in the courts and also at the FCC on
this issue.
And in fact, some of this even predates that ACA International decision.
So, simple answer is we have two big pending dockets before the FCC.
The first docket which was initiated in 2017, relates to reassigned numbers and the FCC's
proposal to create a reassigned number database.
And the second, which came about after the ACA International decision relates to interpretation
of various terms within the TCPA itself.
Derek: Okay.
So, these are things that the FCC is the one that I guess manages the TCPA?
John: Correct.
So, Congress enacted the TCPA in 1991.
And like most laws, Congress doesn't like to get into the nitty-gritty.
So, they will direct that authority to one of the various administrative agencies that
we have throughout DC.
For telecommunications and telemarketing the FCC is that predominant organization.
So, they are in charge of interpreting that statute and resolving the various problems
that come up about it.
Derek: So, Congress essentially says, "Hey, here's kind of what we think the law should
be."
They put it in.
And then they go, "Okay, now, anything going forward is the FCC's kind of..."
Okay.
John: Yup.
"We're done with the problem, you handle the nitty-gritty."
Derek: Sounds good to me though.
And then who is this?
What do you say...ACA?
John: ACA International, correct.
So, the ACA International decision was an appeal from a 2015 FCC order, where they had
kind of gotten into the nitty-gritty of the TCPA.
And long story short, the DC Circuit, in the ACA International opinion, had struck down
various provisions of the TCPA and kind of signaled maybe some change needed to come
about.
And that's where, you know, the FCC has brought us today.
Derek: So, they essentially kind of put it on the FCC's doorstep and said, "Get to it
when you can"?
John: They did.
Yup.
So, immediately after that decision was released, we started to see, you know, courts still
having to deal with this issue.
Derek: Because the FCC hasn't done it.
John: Because the FCC hasn't done anything.
And primarily, these two dockets relate to three kind of big issues.
One of them is the interpretation of the term "automatic telephone dialing system."
One of the biggest terms, you know, out there for the TCPA, revocation of consent.
Derek: Like opting out.
John: Opting out.
Yup.
And then third one is reassigned numbers and interpreting the term "called party" within
the TCPA.
Derek: So, is there any responsibility of the FCC to get to these things at a certain
time or...
John: There is not.
No, there is not.
And, you know, that's why...we did see them kind of come out pretty quickly.
I think in May they issued a public notice saying, "Hey, industry, you know, we need
to re-examine some of these issues.
We want some comments."
So, traditionally what the FCC will do when they're going to broach a subject and implement
some changes is they'll first seek out comment from the industry.
Derek: Okay.
So, they get the thing in like, "Hey, we want this kind of stuff changed."
Then they're like, "Okay, we're not gonna do anything until we get more opinions on
what...
John: Correct.
Derek: Okay.
John: Yup.
So, they'll reach out, they'll say, "Hey, this is the issue we have."
So, for example, for the ATDS definition, they'll say, "Hey, the DC Circuit struck down
our interpretation of this definition.
Obviously, we need to change it.
And first, we're looking for what you think the definition should be.
You know, how have you reacted to it so far, how the courts have been interpreting it.
Do you like that?
What do you think we should do?
What's your basis for that decision?
Can you derive that from Congress's intent?"
So, really get down deep into it to come up with an answer.
Derek: So, for text message marketers, I know obviously the question is what TCP issues
are pending?
So, now we know the issues.
There are two or three.
John: There are two dockets but really three issues.
Derek: Three issues.
John: Reassigned numbers, revocation of consent, and definition of an ATDS.
Derek: And why do legitimate text message marketers, brands that are, you know, sending
mass text messages, why do they care about this?
What changes or why do they need to stay up in the air?
John: Sure.
So, we can I guess go through each of them individually.
Derek: Yeah, sure.
John: Because each are important to look at a text message markers.
So, the first is the definition of Automatic Telephone Dialing System.
Derek: ATDS.
John: ATDS.
So, within the TCPA, ATDS is defined 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.
So, that is the definition that is within the TCPA itself, the federal law.
But that definition isn't very clear.
The FCC is tasked within interpreting that.
And essentially, what they had done in 2015 and years earlier was interpreted within that
the word "capacity."
And interpreted extremely broadly, such that, you know, as the DC Circuit recognized, any
device could be read into this.
Even your cell phone could be deemed an automatic telephone dialing system.
Derek: Yeah, because it holds the power to do it, even though it doesn't do that.
John: Correct.
Derek: It holds the power to do it.
So, what does that mean for text message markers?
If it swings one way or the other, how does that impact text message marketers?
John: So, really the key issue that, you know, the courts have been debating and that now
the FCC is going to have to debate is, does that definition only include devices, you
know, or platforms that can generate, and dial, and text numbers randomly or sequentially?
Just any number which, you know, is our opinion of what it should be only on those devices?
Or does it also include devices that can store numbers from a curated list and dial out of
that list?
Derek: Okay.
So, really just the clarification will make everything easier.
These kind of professional plaintiffs...it'll be harder to file lawsuits kind of in the
gray areas because it'll be resolved.
John: And it'll help.
You know, marketers and brands know whether the device they are actually using is an ATDS
or is not.
Because remember if it's not an ATDS and you're texting a mobile phone, the TCPA doesn't apply
to you if you're not using the ATDS.
Derek: So you might not even need to follow the TCPA if the rules come out that however
you're text messaging whatever app.
John: For that, yes.
Yes, that was good.
Right.
Derek: Interesting.
Okay.
So, then there's the second one.
John: The second one is revocation of consent.
Derek: Okay.
So, opting out.
John: Opting out.
And what we've been seeing here is something that, you know, started to come about a little
before ACA International but then came about there.
And this was the DC Circuit's saying, you know, "We understand that the brands marketers'
colors...they need to opt out people who withdraw their consent by a reasonable means," which
again isn't defined.
But they also said...
Derek: And nobody defines any...
John: Of course.
And by word "reasonableness" is just that one in law generally that's never defined.
But what they did say in that opinion or indicated was that, you know, there are methods that
are unreasonable.
And brands shouldn't be required to honor those out that's because it's too difficult
to maybe come about.
Derek: So, like if your mass text messaging and most people, most reasonable people...they
would reply stopper and/or quit, you know, and that's also CTIA incurred, you know, requirement
but that's not the TCPA.
So, this kind of reasonable thing is, well, in kind of the middle ground what if I go
to the retail store and I tell the teenage worker there, you know, it's part-time and
say, "Hey, remove me from the SMS list."
And they're like, "I don't know what SMS lists you're talking about."
Well, I just recently did that or what about, you know, just yelling outside the business,
you know, when they're closed.
Like I guess that's where the gray area is [crosstalk 00:09:19].
John: Sure. and what the FCC is asking now is they want, you know, commenters to again
say, "Hey, just give us some ideas."
You know, "What do you think is reasonable?
What do you think is not reasonable?
Are there maybe standardized opt-out mechanisms that we can, you know, require like brands
or colors to use?"
Correct.
Derek: Provided and we've been offering forever.
John: Sure.
And often people, you know, think that the CTA guidelines are a good barometer for reasonableness.
You know, if someone is opting out in a way that the CTI guidelines require, you know,
marketers to use, that's probably gonna be deemed a reasonable way of opt-out and a brand
needs to honor that.
But that's not part of the TCPA.
And the question there and they're starting to ask is, you know, should we maybe cement
in this law and in our rules prescribed ways that, you know, brands need to provide to
consumers.
Derek: So, ways of hand, so, like, you know, by messaging back these specific words.
John: Correct.
Derek: Or maybe messaging back anything and then we as providers and brands have to, you
know, look through those messages...
John: Or requiring a brand to have like an opt-out website.
You know, something that's one of the ones things.
So, the things like that.
Derek: So, really just making it concrete and clear.
John: Sure.
Derek: Because I think that brands...they want to follow the rules.
But if there's 10 different interpretations of the rules, it's very hard to do.
Okay.
So, when you go to the FCC and you kind of put something out there it's essentially just
give me more information and make it clearer so I can do a better job.
John: Yeah.
So, the FCC's function is to hear out the public, right?
And, you know, obviously this FCC that we have is more conservative, pro-business which
is good for brands and marketers, you know, they want to constrain that liability.
But their job is also to hear out consumers and the businesses, and to kind of be that
mediator and decide, you know, what do we need?
What don't we need?
How can we make this clear?
How can we help everybody?
Derek: Because we don't want to swing it so far that you just can't opt out, you know,
like, there's that middle ground.
John: We want to protect people's privacy but we also want to, you know, make sure businesses
don't lose their minds just trying to comply with this rule.
Derek: Following the stuff.
Okay.
And then there's one other one.
John: One other one.
And that is reassigned telephone numbers.
And this is where kind of the two dockets are intersecting.
So, first and we'll talk about this kind of more in depth in another video is, the reassigned
telephone number database.
The FCC has started to recognize that we need to provide or help provide a method by which
marketers can understand when a number has been reassigned.
So that they aren't contacting consumers who no longer have that phone number and people
who don't want to receive these messages.
Derek: And this sometimes happens when, let's say, your phone number right now, you opt-in
to hypothetically Chipotle or Macy's, you know, text messaging program and you love
their messages.
But then let's say, you go off to Europe and you give up your phone number.
You know, you give it back to AT&T.
And AT&T will give it to another new customer and then Macy's or Chipotle just continues
to send that phone number.
John: Because they never get notification that the number has been given to somebody
else.
Derek: So, it's super annoying from the consumer standpoint.
The brand doesn't want to do it but they don't have the info.
So, what is being kind of asked of the FCC?
John: So, initially this started in 2017.
And at first it was just a proposal of, "Should we create some sort of database?"
Very broad, open-ended question, should we do this?
And the end of 2017, you know, a lot of the industry got engaged in this rulemaking.
And they made clear, yes, this is something we want.
So, what began in March of 2018 was a deeper dive.
Okay, we know we want to reassign number database but, what do we want that to look like?
Do we want to make it, you know, voluntary or is it required on the carriers to report
the switch?
Derek: So, really the specifics.
John: Yeah, the specifics.
And that docket is ongoing.
And when a doctor is ongoing, you know, that means that as long as certain nitty-gritty
rules don't apply you can go and meet with FCC staff and talk about this issue.
You know, it's still an ongoing proceeding.
They're still looking for information.
Obviously it'll be time-consuming but very important for brands and marketers to follow.
Derek: Do you think we'll get resolutions for any of these in 2018 or 2019?
John: 2019 might be a better picture.
Probably not 2018 because some of the other proceedings that are on FCC's plate right
now but, you know, it's very clear this is something that the industry wants and now
it's just a task of deciding exactly what that is and implementing it.
Derek: Because the FCC also does a lot of other stuff.
It's not like TCPAs their [inaudible 00:14:15] job.
So, this is one of the things on their plate.
John: Correct.
And while they're working on that, they also have to deal with the reassigned number issues
that are coming out of their TCPA interpretation docket.
And they're...
Derek: So, it's not that easy.
John: No.
And there they're looking at the definition of called party.
So, under the TCPA you are allowed to send text messages to individuals or to the called
party to which you have consent.
And the way the FCC has traditionally interpreted the term "called party" is not to mean the
consumer the brand thought they were texting, but the person who actually has that phone
number, so, very limited.
And that's how we get the reassigned number issue.
So, now they're looking at and they're asking, "Hey, you know, the DC Circuit had struck
down, that interpretation is unreasonable."
And they're now asking, "Should we make this a broader interpretation?
You know, "Should we have it mean the customer that that the brand thought they were reaching?
Derek: Yeah, the end-user almost, yeah.
John: End-user, correct.
So, broadening that out.
So, that's the final reassigned number issue that's pending.
Derek: Got it.
Man, a lot of people think that the TCPA is just the TCPA and it's kind of like the 10
Commandments.
It doesn't change and it's sit there.
That is never the case.
John: No, when they come in at 10 A, B, C, D.
Derek: Yeah, that is always changing and updating.
John: Correct.
Derek: That's why we at Tatango always recommend employing a TCPA attorney.
I think it's interesting to note, you guys only focus on TCPA, right?
John: We do.
We're in the weeds every day.
Derek: Like this is not, you know, a division of your law firm.
Your whole law firm just focuses on TCPA.
So, you guys will know exactly when these things happen.
You're staying up-to-date and then updating your clients.
These videos are great but they give you an overview.
John: Yeah, certainly not deep end.
Derek: Yeah.
Exactly.
And I think they're nice because they educate the public, they let you ask the right questions
to your TCPA attorney and just make sure, you know, you're talking to a good TCPA attorney.
But, you know, always employ a TCPA attorney if you're using SMS marketing.
John: Definitely a good idea.
Derek: Because the risks are just so huge right now.
John: They are, they are.
Derek: Well, you've heard it from John Nelson, TCPA attorney.
Employ a TCPA attorney.
Again, my name is Derek Johnson from tatango.com.
And we're answering questions from the internet on TCPA, really everything TCPA.