What is the number-one complaint heard by the FCC? Robocalls!
Simply put, consumers hate them, and to fight back against the unwanted phone calls, the FCC is enforcing several aspects of the Telephone Consumer Protection Act (TCPA) that, while not targeted specifically at the alarm industry, could affect the ability of alarm companies to provide notifications.
Among other things, the TCPA places restrictions on the ability of companies to use an automatic telephone dialing system or an artificial or prerecorded voice to call a wireless device or to call a telephone line of a patient room in a hospital, healthcare facility or elderly home. It also places restrictions on the ability of companies to use artificial or prerecorded voice to call a residential telephone line.
Needless to say, this could pose a big challenge for the monitoring industry, and members of The Monitoring Association (TMA) are concerned; in fact, TMA’s Alarm Industry Communications Committee (AICC) recently took action to address two issues within the TCPA that could affect TMA members.
Mary Sisak, a partner at Blooston, Mordkofsky, Dickens, Duffy & Prendergast LLP, provides counsel to the AICC. Her practice area includes the representation of independent telephone companies and wireless carriers in a range of legal and policy matters, including matters relating to the implementation of the 1996 Telecommunications Act. The following is a report from Ms. Sisak on the FCC’s enforcement of two aspects of TCPA that could impact the operations of alarm companies in providing alarm notifications that appeared in the Fall 2018 issue of TMA’s Dispatch publication.
Defining Autodialers
First, the FCC is considering comments filed by business and consumer advocates concerning how to define the term “automatic telephone dialing system” (ATDS), commonly referred to as an autodialer, as used in the TCPA and how to define the called party for calls to a number that has been reassigned to a new customer.
Consumer advocate commenters support a broad definition of an autodialer. They also support defining the called party as the party actually reached by a call. Business commenters support a narrow reading of the definition of autodialer, arguing that the called party should be the party the caller intends to reach.
AICC filed reply comments in this proceeding and urged the FCC to reject a broad interpretation of the definition of autodialer to ensure customers are able to receive critical messages and notifications regarding their alarm systems. AICC also argued that the term “called party” should refer to the party the caller intends to reach.
In support of its position, AICC explained that when a monitoring company receives notification of a smoke or fire alarm, emergency personnel are dispatched immediately and the monitoring station attempts to contact the customer. Alarm customers provide contact numbers – both their own and the numbers of others, which could be a wireless number, for this purpose.
Alarm systems also may send notifications when devices are added or deleted; and system trouble notifications, such as a device going offline, a device with low battery power, a system AC power failure, or a user locked out after failed sign-in attempts, that are critical to the safety of the subscriber. For example, a device going offline may be because a home intruder has removed the alarm device. A signal that a user is locked out after failed attempts to sign in may be because an unauthorized person and/or intruder is trying to sign in to the system. Without power, the system will not work as desired by the customer to protect life and property. When these types of signals are received by the alarm monitoring station, the monitoring station will contact the customer. If the customer cannot be contacted, the alarm monitoring station will contact the alternative contact person(s) provided by the customer.
Besides these emergency communications, alarm companies also place automated calls that are closely related to the purchased alarm service, and are the type of communications customers expect to receive by providing their cell phone number to an alarm company. A broad interpretation of autodialer would hinder the ability of alarm companies to make these calls and/or increase the liability exposure of companies.
AICC also urged the FCC to adopt a strict construction of what constitutes an autodialer, and follow the language in the TCPA. Specifically, AICC argued that to be an autodialer:
- Equipment must use a random or sequential number generator to store or produce numbers and dial those numbers without human intervention; and
- Only calls made using actual ATDS capabilities are subject to the TCPA’s restrictions. Thus, in order to be considered an ATDS, “the requisite functions of generating and dialing random or sequential numbers must actually be used in making or initiating a call.”
AICC also argued that “called party” should mean the person intended to receive the call; thus, for example, a company would be able to use an autodialer to contact a wireless device when it has received permission to do so from its customer, even if the number has been reassigned to someone who has not given the company permission to call the number.
Reassigned Phone Numbers
The FCC is also considering comments filed on whether there should be a database of reassigned telephone numbers to help prevent violations of the TCPA.
AICC and other commenters argued that the database question is premature and should not be decided until the FCC rules on the proper interpretation of “called party.” If the FCC finds that “called party” is the party a company intended to call, as argued by AICC, then a reassigned number database may not be necessary.
AICC also expressed concern regarding the cost of a database and the ability of small companies to be able to afford to use it. The record indicates that creating and maintaining a reassigned numbers database would be expensive; however, there is no information on what the cost actually would be.
Further, many commenters argue that the FCC must require companies that access the database to pay for all associated costs of developing and maintaining the database, which means the cost to access the database could also be high. AICC argued that if small companies are not able to afford access to the database and, therefore, are unable to use it, then they may be precluded from getting any safe harbor protection from the TCPA. This, in turn, would either require small companies to forego making lawful autodialed calls to efficiently contact their customers or, if they make autodialed calls without accessing the database, they will still face class action trolls and tremendous liability for violating the TCPA.
In addition, it can be expected that cost will not impact larger companies as much as small companies, and they will be able to access the database, obtain safe harbor protection and, therefore, continue to make calls to efficiently contact customers, to the detriment of the ability of small companies to compete. Thus, if the FCC does implement a reassigned numbers database, it must ensure that the database is equally accessibly by all entities before its implementation.
While this information is current as of Aug. 2018, both of these proceedings are still pending, and it is not known when the FCC will release an order to resolve these issues and finalize new rules. AICC will continue to monitor the proceedings, take action as appropriate, and inform the alarm industry of updates.
Elizabeth Lasko is VP of Marketing and Communications for The Monitoring Association (TMA). Learn more at http://tma.us.
