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HR 3035 Legislation Update by Ross Buntrock at Arent Fox
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| Ross Buntrock - Arent Fox |
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Ross A. Buntrock, Arent Fox - Telecommunications, Mobile Communications
Ross Buntrock, leader of the firm’s telecommunications group, is nationally recognized for his work in communications and technology law. Ross has 17 years of experience counseling startups and established communications companies in every part of the communications ecosystem, including mobile application developers, mobile payment providers, wireless carriers and wireline carriers, cloud computing companies, SMS marketing companies, VoIP providers, and international carriers, among others. Ross has experience in all aspects of regulatory, transactional, litigation, legislative and privacy matters, including litigation of carrier-to-carrier disputes in federal courts, defense against the Telephone Consumer Protection Act (TCPA) actions (including class actions), administrative litigation before the Federal Communications Commission (FCC), representation before the Federal Trade Commission (FTC), the US Department of Justice and state public service commissions.
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H.R. 3035 Set to Profoundly Impact Mobile Marketing
Proposed legislation under consideration in the House of Representatives could have a profound impact on mobile marketing campaigns if passed. H.R. 3035, the Mobile Information Call Act of 2011, would modify the 20 year old Telephone Consumer Protection Act (TCPA) to reflect the increasing use of mobile devices. The legislation was introduced by Representative Lee Terry (R. Neb.) in September 2011.
The TCPA has not changed since it was enacted in 1991 although the FCC has periodically promulgated new regulations and interpretations of the law. Courts have used those FCC regulations and interpretations to decide whether companies acted in contravention of the TCPA through their mobile marketing campaigns. For example, the FCC in 2003 determined that a “call” under the TCPA included a text message, which courts have subsequently accepted in several TCPA class action lawsuits involving mobile marketing campaigns.
The TCPA currently distinguishes between wireless and landline calls for purposes of how companies can contact an end user. The proposed legislation would create parity between wireless and landline devices by allowing businesses to make “informational calls” to mobile devices. Under the present law a business could make an “informational call” to a landline number if there exists an established business relationship, but could not to a mobile device. The proposed legislation would continue to strictly regulate commercial solicitations.
The current law allows certain calls with “express consent,” but that term is not defined. The legislation clarifies what “express consent” means, such that express consent could be obtained at any time, in writing or orally, and that providing a telephone number evidenced express consent under the TCPA. The proposed legislation also changes the definition of “automatic telephone dialing system” (aka an autodialer) to mean a device which uses a random or sequential number generator to call such numbers. The current definition includes any device that has the capacity to do so, a more expansive definition than the proposed modification.
If passed, this legislation and the resulting FCC regulations could potentially make life a little easier on companies seeking to contact mobile devices. The legislation drafters think the changes are needed so that companies and organizations can alert customers on their mobile devices to important events like bank fraud alerts or school snow-day alerts. Critics worry that the legislation will open the door to unwanted solicitation calls and texts to mobile devices. Specifically, they’re concerned that the definition of express consent and autodialer will make unwanted calls more prevalent. Defenders claim that express consent will still be strict for any commercial solicitations. The legislation is in its nascent stages, but has already had a hearing at the Communications Subcommittee of the House Committee on Energy and Commerce. More information is available here: http://energycommerce.house.gov/hearings/hearingdetail.aspx?NewsID=9065.
Please contact Ross A. Buntrock, Jason A. Koslofsky, or G. David Carter at Arent Fox if you have any questions about this legislation. |
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Mobile Marketing and Technology
Ross Buntrock is a contributing member of our community. Follow us and get the latest updates news and legislation that affects the mobile payment and mobile marketing industry. Come and connect with us today at Mobile Marketing and Technology and The Mobile Payment Conference.
Regards,
Marla Ellerman
Mobile Marketing and Technology |
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