Good year! As we look into the New Year, it’s also a great time to take a break and reflect on the last one. 2021 has been an interesting year in the world of consumer contact. Class actions filed under the TCPA (Telephone Consumer Protection Act) fell nearly 50% after the Supreme Court clarified the definition of an ATDS (Automatic Telephone Dialing System). However, there were still several spectacularly high settlements and also test cases filed in less commonly contentious issues, including DNC policy requests, pre-recorded information calls, and more.
2021 also saw more state-level action, including new appeal rules in New York and Florida. This year also saw the entry into force of Consumer Financial Protection Bureau regulations under the Federal Debt Collection Protection Act.
Supreme Court clarifies definition of ATDS under TCPA, but questions remain
On April 1, 2021, the Supreme Court ruled on the definition of an ATDS under the TCPA, concluding that “to be considered an ‘automatic telephone numbering system’, a device must have the capacity to either store a telephone number using a or a sequential number generator or to generate a telephone number using a random or sequential number generator.
Lower courts are now applying this plain reading of statutory language, but questions remain open. For example, to what extent should the ability to generate random or sequential numbers be considered, especially when that ability is not in use?
Read more: ATDS analysis: what matters after Facebook
FCC considers tech solutions to tackle illegal and unwanted calls
For several years, the FCC has encouraged companies to develop technological solutions to combat automated calls. This year, the FCC has reinforced these recommendations. At the end of June, the FCC asked all voice service providers to certify their implementation of the STIR / SHAKEN call authentication protocol and the reasonable steps they have taken to authenticate traffic on the non-IP parts of their networks. networks in the Robocall call mitigation database. The FCC further required that voice service providers block the traffic of any entity not listed in the database after September 28, 2021. The FCC also continued to encourage voice service providers and third-party applications to develop solutions. technological solutions to help consumers avoid unwanted and illegal calls. including labeling calls as “spam” or “scam”.
Reassigned numbers database
On November 1, 2021, the Reassigned Numbers (RND) database was launched in earnest, finally giving callers the ability to check if a number has changed hands. Callers who choose to use the database may be granted a Safe Harbor for bad party contact violations from the TCPA if the caller:
- Obtaining consent to call the phone number;
- checked their call numbers against the most recent version of the reassigned numbers database; and
- Only call numbers that return a “No” response from the database (indicating that the number has not been reassigned since consent was obtained).
Callers can find more information on rates or how to register for the reassigned numbers database at https://www.reassigned.us/
Read more: Reassigned Numbers Database FAQ
Fair Debt Collection Practices Act
The Fair Debt Collections Practices Act (FDCPA) places restrictions on what third party debt collectors can do. At the end of 2020, the CFPB began to enact regulations under the law. These regulations include new rules on how people can be contacted regarding past due debts. The rules also include updates related to attempted calls, the circumstances under which a debtor can be contacted by email or text message, and introduce the idea of a “limited content message”. These updates went into effect on November 30, 2021.
States take call regulation seriously
In 2021, states have stepped up efforts to tackle illegal and unwanted calls. Attorneys general across the country have come together to call on the FCC to shorten the period during which small carriers must comply with the STIR / SHAKEN call authentication protocol, and to ask the FCC to consider requiring that businesses with direct access to phone numbers do their due diligence. on their customers in order to stop illegal calls from legally obtained numbers. The attorneys general also hosted their first-ever Robocall summit.
Several state legislatures also passed new calling rules in 2021. New York has enacted several bills, including explicitly subjecting text messages to New York calling rules, requiring voice service providers to adopt the STIR / SHAKEN caller authentication protocol and requiring voice service providers to block certain phone numbers.
Ohio has also changed its appeals rules, including criminalizing certain types of identity theft.
Florida has made the most drastic updates to its appeal rules. As of July 1, 2021, all sales or marketing calls to consumers placed with an “automated system for selecting or dialing phone numbers or playing back a pre-recorded message” require express written consent. Adding an additional wrinkle, all calls made to Florida area codes are presumed to be from Florida residents. In addition, the law added new rules on attempted calls and reduced the allowed call times between 8 a.m. and 8 p.m.
Read more: Florida Governor signs SB 1120