TCPA Update – FCC Reveals Key Points for Proposed Rules for “Robocalling” to Collect Federal Debt

Last November, in pushing through the Bipartisan Budget Act of 2015, Congress inserted minor amendments to the Telephone Consumer Protection Act (TCPA) to create a new exception to the TCPA’s prohibition on autodialed and prerecorded calls to cell phones, to allow such calls when placed to collect a debt owed to or guaranteed by the United States.  The TCPA amendment was not universally supported, and legislation has been introduced in the current Term of Congress to roll back the changes, but little progress has been made.  Meanwhile, the amendments require the Federal Communications Commission (FCC) to issue implementing rules by August 2016, that will govern the number and duration of calls, and potentially other specifics, with respect to the new permission in the statute for federal debt collection calls.

It was recently revealed that a notice of proposed rulemaking (NPRM) seeking comment on potential regulations to implement this TCPA amendments is “on circulation” at the FCC (which allows action on such matters outside its monthly Open Meetings), and more recently, the FCC released letters from Chairman Wheeler to legislators concerned with the new allowance in the TCPA.  Significantly, the letters foreshadow what the NPRM will propose.  They indicate that the NPRM will, among other things, seek comment on (a) limiting autodialed/prerecorded calls to cell phones to collect federal debt to 3 calls a month per overdue account, (b) prohibiting calls to debtors’ relatives and friends, and (c) requiring a right for the debtor to opt out of future calls.  The NPRM also apparently will propose to limit the new exception to allow the calls only after a debtor becomes “delinquent.”

With Chairman Wheeler’s letters serving for now as the only express insight into FCC intentions for implementing the TCPA amendments on federal debt collection, it remains to be seen what other restrictions or requirements the NPRM will propose.  But it is worth noting that an FCC ruling that dates back nearly a decade provides special allowances for autodialed/prerecorded debt collection calls to cell phones more generally.  The FCC’s adoption of rules or policies on calls to collect debts owed to or guaranteed by the federal government could well have spillover effects on that long-standing broader allowance applicable to all debt collection calls.  However, assessing whether such farther-reaching impacts will come to pass must await release of the NPRM, and perhaps the ultimate adoption of amended rules. Thus, while this rulemaking should be narrowly focus on calls to collect federally issued or guaranteed debt, careful attention is warranted.  Companies potentially affected are encouraged to watch this space for further developments, and to consult with counsel as to how the rules proposed by the NPRM, and any commentary it contains, may apply to their operations.