On August 11, 2016, the FCC released its final rules (“Report and Order”) that implement Section 301 of the Bipartisan Budget Act of 2015 (“Budget Act”), which amended the Telephone Consumer Protection Act (“TCPA”) by excepting “robocalls” (calls or texts made with an automatic telephone dialing system or calls made with a prerecorded or artificial voice) “made solely to collect a debt owed to or guaranteed by the United States” from the TCPA’s prior express consent requirement. Pursuant to the Budget Act, the FCC, in consultation with the U.S. Department of Treasury, was required to issue regulations that implement the Budget Act’s amendments to the TCPA within nine months of enactment.
The FCC’s Report and Order addresses, among other things, the following:
- Covered Calls– The exception to the TCPA’s prior express consent requirement applies to calls made “solely to collect a debt owed to or guaranteed by the United States.” In addition, the debt must be currently owed to or guaranteed by the federal government at the time the call is made. Debts that have been satisfied and debts that have been sold in their entirety by the federal government are not covered. In addition, the FCC clarifies that “solely to collect a debt” means “debt that is delinquent at the time the call is made or  debts that are at imminent risk of delinquency as a result of the terms or operation of the loan program itself.” At the time the call is made, the debt must be delinquent or there must be “an imminent, non-speculative risk of delinquency due to a specific, time-sensitive event that affects the amount or timing of payments due, such as a deadline to recertify eligibility for an alternative repayment plan or the end of a deferment period.” A call that includes “marketing, advertising, or selling products or services, and other irrelevant content is not solely for the purpose of collecting a debt owed to or guaranteed by the United States.”
- Number of Calls– The FCC states that the exception is limited to three calls within a 30-day period. However, “federal agencies may request a waiver seeking a different limit on the number of autodialed, prerecorded-voice, and artificial-voice calls.”
- Consumers Can Opt Out– In the Report and Order, the FCC states that “consumers have a right to stop the covered autodialed, artificial-voice, and prerecorded-voice servicing and collection calls to wireless numbers at any point the consumer wishes.” No federal debt collection calls are permitted once a “debtor asks the owner of the debt or its contractor to cease federal debt collection calls.” Note that “[t]his requirement that callers immediately honor a request to stop calls applies even where the caller has previously obtained prior express consent to make federal debt collection calls.” In addition, the stop-calling request transfers with the debt. Consequently, “a stop-calling request applies to a subsequent collector or servicer of the same debt.”
- Right to Opt Out Disclosure– Callers are required to inform debtors of their right to opt out. The disclosure of rights must inform the debtor that he or she has a right to request that no further autodialed, artificial-voice, or prerecorded-voice calls be made to the debtor for the life of the debt, and that such request may be made by any reasonable method. Disclosures must be made in a manner that gives debtors an effective opportunity to stop future calls. Callers must disclose this consumer right within every completed autodialed call with a live caller, whether the caller speaks with the debtor or leaves a voicemail message. Calls using a prerecorded or artificial voice must disclose the right within each message. Covered text messages must disclose the right within each text message or in a separate text message that contains only the disclosure and is sent immediately preceding the first covered text message.
- Who May Make the Calls– Covered calls may only be made by the owner of the debt or its contractor. The FCC states that “[w]e decline to adopt rules that are as broad as ‘subcontractor,’ but limit permitted callers to the owner of the debt or its contractor.”
- Who May be Called– The covered calls may only be made to the debtor or another person or entity legally responsible for paying the debt. Calls are not permitted to other persons listed on the debt paperwork, such as references or witnesses.
- Numbers that May be Called– According to the FCC, the phrase “solely to collect a debt” permits no covered calls unless the call is made to the debtor or person responsible for paying the debt at one of following three categories of wireless telephone numbers. First, calls may be made to the wireless telephone number the debtor provided at the time the debt was incurred, such as on the loan application. Second, covered calls may be made to a wireless phone number subsequently provided by the debtor to the owner of the debt or the owner’s contractor. Third, covered calls are permitted to a wireless telephone number the owner of the debt or its contractor has obtained from an independent source, provided that the number actually is the debtor’s telephone number.
- What Constitutes a “Call Made”– A call is any initiated call. The call need not be completed, and need not result in a conversation or voicemail. The FCC clarifies that “covered calls may be an autodialed call, a prerecorded- or artificial-voice call, or a text message sent using an autodialer.”
The changes made by the Report and Order will go into effect 60 days after the FCC publishes a Notice in the Federal Register indicating approval of the information collection by the Office of Management and Budget. A copy of the Report and Order can be found at: https://www.fcc.gov/document/rules-and-regulations-implementing-tcpa-act-1991.