Litigation under the Telephone Consumer Protection Act (TCPA) has exploded over the last few years. During the course of such litigation, parties typically will seek the input of the Federal Communications Commission on issues of interpretation of the TCPA. This may occur through a request from the court under the doctrine of primary jurisdiction, or, at times like this, through a request initiated by one of the litigants directly. In the case below, a TCPA defendant is asking the FCC for relief in a case involving calls to mobile phones that previously were associated with a consenting subscriber, but which have been reassigned.
The petitioner, United Healthcare Services (United), is a large healthcare company. In its provision of healthcare services, it provides notifications of prescription renewals, vaccination reminders, pre- and post-op instructions, etc. to a patient’s mobile phone. These notifications are non-telemarketing contacts, for which the FCC recently clarified that a lesser approval standard is necessary under the TCPA. For informational calls such as these, the FCC required “prior express consent” when calls are placed to a mobile telephone number (prior express written consent is necessary for telemarketing calls to mobile phones).
The United Healthcare Petition addresses a common problem in our transient society: mobile phone numbers are recycled frequently by carriers. Once a subscriber cancels service, the number may be reassigned to another subscriber, often after only a short period of time. As a result, “wrong number” calls and texts can be common. In United’s case, they also potentially could be very costly.
United seeks a declaratory ruling from the FCC that such calls are authorized under the TCPA, provided the caller previously had prior express consent from the subscriber. Specifically, United asked for a ruling that:
Parties are not liable under the TCPA for informational, non-telemarketing calls, especially healthcare-related calls, to telephone numbers that have been reassigned without the caller’s knowledge—as long as the caller previously obtained ‘prior express consent’ to place calls to that specific telephone number.
United argues that this conclusion can be achieved by interpreting the initial consent to extend until the caller learns that the number is reassigned, or by finding a “good faith” exception to TCPA liability in these circumstances. Comments on the United petition are due in March.
The United petition joins approximately 10 other petitions that are pending with the FCC. These petitions address a myriad of issues implicated in TCPA litigation, including the definition of an autodialer, the effectiveness of consent obtained prior to the FCC’s October 2013 rule change, consent given through an intermediary or a third party, and obligations to provide opt-out notices on fax advertisements that have previously been authorized. Kelley Drye’s TCPA Defense Team is tracking all of these for you.