Support grows for the FCC to correct an error concerning language for prior express consent in its latest TCPA order. Editor’s note: This article is for members only.
5/10/2021 12:00
ACA International and industry trade associations filed reply comments to the Federal Communications Commission last week in response to support for amending longstanding exemptions from the Telephone Consumer Protection Act consent requirements for certain categories of informational calls.
All commenters responding to ACA and the industry trade associations’ petition to the FCC agreed the commission should take steps to reconsider the TCPA exemptions order and ensure that consumers are protected against unlawful calls and bad actors, have meaningful choice and control over the calls they receive, and can continue to receive time-sensitive informational communications.
Fixing this drafting error would also help avoid the side effects to the commission’s past treatment of informational calls.
In addition to ACA, the Edison Electric Institute, the Cargo Airline Association and the American Association of Healthcare Administrative Management filed the petition to the FCC.
Telemarketing calls and text messages require “prior express written consent” (a standard implemented to harmonize the FCC’s rules with the Federal Trade Commission’s Telemarketing Sales Rule), whereas informational communications require “prior express consent.”
From a consumer protection and compliance perspective, the distinction is significant, which ACA and other commenters noted in the petition and reply comments.
Several commenters are supporting the petition, except for the National Consumer Law Center, which opposed it in part.
The NCLC supports the erratum to clarify that written consent is not needed for informational prerecorded calls. However, NCLC urges the FCC to initiate a proceeding to revisit prior express consent generally and opposes reconsideration of the FCC’s decision to impose do-not-call telemarketing opt-out rules on informational calls. The NCLC also urges the FCC to adopt uniform opt-out disclosure language for prerecorded calls.
“The record overwhelmingly demonstrates that granting the petition is in the public interest and supports the commission’s consumer protection objectives. The commission should ensure that informational calls are subject to uniform consent and opt-out rules, and it should reconsider the blanket three-calls-per-30 days restriction that would apply indiscriminately to a wide array of callers and use cases,” the reply comments from ACA and industry trade associations state. “Doing so will allow landline subscribers to continue receiving the same time-sensitive communications about their utility service, financial accounts, package deliveries, and healthcare that they receive today during critical moments. It will also empower consumers with meaningful choice while continuing to offer strong protections against unlawful calls and bad actors.”
In response to the NCLC’s comments, ACA and the industry trade associations noted that extending the telemarketing opt-out rules to informational calls would harm consumers and offer no new protections. For example, the new rules “could mean that consumers will miss out on important service announcements, such as an automaker’s safety recall, service outage updates, or a continuing subscription’s upcoming renewal.”
Contrary to NCLC’s suggestion, applying a more prescriptive type of opt-out and recordkeeping regime designed for telemarketers would not address concerns with informational prerecorded calls to residential landlines.
Bad actors will not comply with an opt-out regime regardless of how prescriptive it is, and no evidence has been provided to demonstrate that extending the onerous telemarketing opt-out rules to informational communications will deter illegal robocalls. NCLC’s untimely request to extend the telemarketing rules to all informational prerecorded calls is also procedurally improper and outside the scope of this proceeding.”
ACA and the industry trade associations filed the petition in March to outline why arbitrarily limiting calls does not help consumers. The FCC’s December 2020 order amended longstanding exemptions from the TCPA consent requirements for certain categories of informational calls, ACA previously reported.
Notably, the order adds significant new compliance burdens to making prerecorded calls to landlines.
The order took effect Monday, March 29, 2021, except for the amendments to Section 64.1200(a)(3)(ii) through (v), (b)(2) and (b)(3), and (d), which are delayed indefinitely. Those sections include the codified non-marketing exemptions and the disclosure and recordkeeping requirements.
The following groups also supported the petition in whole or in part in reply comments, making the following points:
NTCA (Internet & Television Association):
- “The rules adopted in the order appear to erroneously require prior express written consent for non-exempt commercial informational calls to residences. This outcome is inconsistent with Commission precedent and the text of the order.”
- “[T]he order’s opt-out requirement for exempted informational calls could also frustrate companies’ ability to communicate important—and potentially vital—messages to their customers. The commission, however, failed to consider these issues in adopting the expanded opt-out requirement … the commission should therefore reconsider the expansion of the telemarketing opt-out requirements to exempted commercial informational calls to residences.”
- “[T]he order’s three-call limit imposes overbroad restrictions on fully protected speech and violates the First Amendment. The order ‘makes no attempt to justify the three-call limit under strict scrutiny—in fact, the commission does not address the First Amendment implications of its actions at all.’”
- “Nor is the three-call limit narrowly tailored. As the commission acknowledges in the order, the three-call limit is based entirely on the commission’s prior determinations regarding debt collection calls. Whatever interest the government may have in limiting debt collection calls, that interest cannot reasonably justify limiting exempted calls that consumers value far more highly, such as calls conveying security concerns or appointment reminders.”
Enterprise Communication Advocacy Coalition:
- “The commission’s use of the term prior express written consent renders the prescribed language illogical and counterintuitive.”
- “Differing numerical limitations for different types of calls amounts to content-based restrictions that do not satisfy strict scrutiny.”
American Financial Services Association (AFSA):
- “AFSA agrees with the petitioners’ assessment of the commission’s findings regarding “prior written consent” for informational prerecorded voice messages sent to residential landlines, and further supports petitioners’ assertion that opt-out requirements for telemarketing calls should not be extended to informational prerecorded voice messages sent to residential landlines.”
- “In addition, AFSA agrees with the petitioners’ comments that the commission should reconsider its decision to align prerecorded non-telemarketing informational calls with that of prerecorded telemarketing calls. The decision unnecessarily extends opt-out requirements for prerecorded telemarketing calls to specific exempt informational calls. The application of such standards departs from longstanding rules afforded to non-marketing informational messages…”
California Utilities (PG&E, Southern California Edison, San Diego Gas & Electric):
- Utilities often must make more than three calls per month due to operational and regulatory pressures.
- “Arbitrary restrictions on our ability to communicate with our customers about matters closely related to utility service—and having nothing to do with marketing—adversely impacts our ability to serve the public and has the potential for negative health and safety implications for our customers.”
- “The writing requirement appears to have been a drafting error, which the commission could quickly correct by erratum.”
- “In [the EEI Declaratory Ruling], the phones were wireless; in the proceeding below, the subject is landline phones. There is no rational basis, nor has the commission suggested one, to treat the same types of communications differently, based on the nature of the phone service.”
- “A one-size-fits-all rule allowing three “permitted calls” per 30 days but requiring prior express written consent thereafter is potentially dangerous for utility customers.”
- “Not only did the commission fail to explain why the simpler, almost 30-year-old opt-out rules for informational calls no longer adequately protect consumer privacy or would fail to protect consumer privacy for this subset of informational calls in the future, but it undertook no cost/benefit analysis evaluating the burdens on informational callers, such as the California Utilities, relative to any perceived increase in consumer privacy.”
National Rural Electric Cooperative Association (NRECA) and American Public Power Association (APPA):
- “[T]he FCC should promptly issue an erratum to confirm that telemarketing consent is not required for informational prerecorded calls to landlines.”
- “[T]he FCC should reconsider its decision to extend its telemarketing opt-out requirements to certain informational prerecorded calls.”
- “[T]he FCC should reconsider its decision to impose uniform call frequency limitations, currently three calls per 30 days, on all exempted informational landline calls.”
- “[T]he FCC should confirm that its past guidance regarding “prior express consent” for wireless calls in the 2016 EEI Declaratory Ruling applies to residential landline calls.”
CenterPoint Energy
- “The tailored relief requested in the petition would further the commission’s objective to curtail unwanted robocalls, in a manner that does not chill communications which the Commission has determined to be in the public interest.”
Based on the comments received and support from other petitioners, ACA and the industry trade associations ask the FCC to promptly approve the petition.
Related Content from ACA International:
ACA Petitions FCC to Reconsider TCPA Call Exemptions for Prerecorded Calls to Landlines
Commenters Support ACA’s TCPA Call Exemption Petition to the FCC