Telemarketers and other businesses that make telephone calls using an artificial or prerecorded voice should take note of a new proceeding in which the Federal Communications Commission (FCC) is considering the meaning of a “residential line” under the Telephone Consumer Protection Act (TCPA) and the FCC’s implementing rules. Under those rules, a telemarketer must obtain prior express consent from a called party before initiating a telemarketing call to a residential line using an artificial or prerecorded voice. Todd C. Bank, a plaintiffs’ class-action attorney, has petitioned the FCC for a “bright-line” rule that any telephone lines registered by a telephone company as “residential”—including lines used by home businesses—be treated as a “residential line” under the regulations.
Mr. Bank just happens to be the named plaintiff in a purported class-action lawsuit currently pending before the Second Circuit, where he asserts that the defendants violated the TCPA by calling the phone number he uses for both his residence and his business without first obtaining his consent. Having lost at summary judgment in the district court, Mr. Bank clearly hopes an FCC ruling in his favor will lead the Second Circuit to reverse the decision below. More broadly, a ruling in Mr. Bank’s favor could spur similar class-action suits against businesses making “robocalls,” both in the Second Circuit and nationwide.
The FCC has asked for comments on Mr. Bank’s petition by May 2, 2016, with reply comments due on May 17, 2016. Companies or organizations with an interest in the outcome should answer this call. For additional discussion of the FCC’s notice and Mr. Bank’s petition, read Arnold & Porter's Advisory, FCC Seeks Comment on Whether the Telephone Consumer Protection Act’s Restrictions on Prerecorded Calls Apply to Home Business Telephones.