FCC Faces Decision on Robocalls to Wireless

But in the days leading up to Friday’s end of the comments period for AAHAM’s petition, collection agency workers are filling docket 02-278 with largely identical letters, supporting the request. The petition asks the agency to confirm that providing a phone number to a healthcare provider represents “prior consent” to receive autodialed calls, or prerecorded voice calls, at wireless numbers. Consumer groups like the National Consumer Law Center (NCLC) oppose the petition, as do others filed with the agency, saying, in a statement, they would “open the floodgates” to robocalls to wireless numbers.

The American Bankers Association, after the end of its reply period Dec. 22, is awaiting an agency ruling on its own TCPA petition. That petition sought an exemption to allow banks to make TCPA’s automated calls to mobile devices for some types of calls, including alerts to customers of transactions that suggest a risk of fraud or identity theft. In addition, the reply period for an RTI International petition seeking an exemption from the restrictions for research calls made by or for the federal government ended Monday. Replies to the AAHAM petition are due Feb. 2.

As with petitions filed for clarification of junk fax regulations (see 1408040030), the petitions on calls to wireless phones were spurred by a spate of lawsuits alleging TCPA violations, said Hogan Lovell’s Mark Brennan, AAHAM’s counsel. “In recent years, enterprising plaintiffs’ attorneys have pursued frivolous claims, including class actions, over many calls and text messages that Congress never intended to restrict,” he said. The increase in TCPA-related petitions to the agency also “reflects the growing number of wireless-only households and use of automated technologies for many time-sensitive, non-telemarketing calls,” he said.

Consumer groups, though, say companies just want to weaken the law. The FCC should “resist the pressure from business and industry trade groups to weaken rules that prevent robocalls to cell phones without consent,” Margot Saunders, counsel to NCLC, said in the statement. “Repeated unauthorized calls and texts to consumers’ cell phones invade privacy and cost money by using their precious minutes or limited text allowances.”

The commission also is considering some exemptions to TCPA rules barring unauthorized faxes. The commission in October affirmed TCPA’s requirement that fax ads containing opt-out notices (see 1410300047). The order acknowledged confusion by companies about the law and granted several retroactive waivers. The comments period for 11 additional petitions seeking retroactive waivers ended Tuesday, with replies due Jan. 20.

AAHAM doesn't plan to file more comments before Friday’s deadline, Brennan said. In its Oct. 21 petition, AAHAM argued that many of the healthcare calls are “time-sensitive” and “ensure that patients have all of the information necessary to make well-informed decisions regarding their healthcare.” Manual dialing “is more time-intensive (and error-prone), and it can ultimately increase healthcare costs,” AAHAM said.

Supporting the petition, several employees of Americollect, including Andrea Walotkiewicz, who described herself as a “collector,” filed largely identical letters with the agency, which were posted Tuesday and Wednesday. TCPA, “was intended to protect consumers from certain telephone calls to their residential and cellular telephones. … Unfortunately the well intentioned origins of the Act have been outgrown,” Walotkiewicz’s letter said. “Since the law’s enactment in 1991, “there has been a vast expansion in cell phone and communication device use, reaching most aspects of modern life. Legitimate related communications have been made more convenient and more accessible, providing a tremendous benefit to the consumer.”

ABA members strive to notify customers about such things as potential fraud “quickly and efficiently,” the banking association’s petition said. “Automated text messages are nearly instantaneous, and automatically-dialed voice calls and texts can reach more customers in any given period of time than manually dialed calls.” Many notifications have to be sent to mobile numbers, ABA continued, saying about a quarter of those with accounts at one bank have mobile service but no landlines.

Consumer groups oppose both the AAHAM petitions, Saunders said. Comments by the groups on AAHAM’s petition weren't available on the agency’s electronic comments filing system as of our deadline Wednesday. In opposing the ABA petition, the groups argued the automated messages aren’t important enough to consumer interests to justify consumers receiving the messages if they haven’t given consent. If consumers believe the messages are important, they can consent to receive them, said Consumer Action, the Consumer Federation of America, National Association of Consumer Advocates, NCLC, Public Citizen and the U.S. Public Interest Research Group. “If the messages are important and consumers have not consented to receive them, ABA’s members should take the time to pick up the phone and speak with affected consumers directly, or send an email or a letter,” the groups said.