Letter to FCC outlines need to align regulatory limits on calls for the benefit of businesses and consumers as it implements the TRACED Act and considers call exemptions proposals in its Dec. 10 meeting. Editor’s note: This article is available for members only.
12/9/2020 14:00
– Limits on calls that contradict the TRACED Act and other regulators’ rules only prevent consumers from receiving important, time-sensitive information and harm legitimate callers.
– ACA International is advocating for inclusion of a safe harbor for callers complying with other federal regulations.
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In advance of the Federal Communications Commission’s meeting Thursday, which will include discussion of exemption of certain calls from the Telephone Consumer Protection Act and implementation of the Telephone Robocall Abuse Criminal Enforcement and Deterrence (TRACED) Act, ACA International ramped up its advocacy on these measures.
As part of that advocacy, Vice President and Senior Counsel of Federal Advocacy Leah Dempsey submitted an ex parte letter to the FCC with concerns about a proposal and comments from the National Consumer Law Center (NCLC) asking the FCC to require callers to operationalize new opt-out, internal recordkeeping compliance and call frequency limitations. It also proposes one message “per event” for non-marketing prerecorded messages to residential landlines that, if adopted by the FCC, would almost certainly be vacated on appeal.
“The record confirms that new restrictions remain wholly unnecessary today and in many instances would prevent some of the most vulnerable consumers from receiving important, time-sensitive information,” Dempsey said in the letter.
Taking the approach in the proposal from the NCLC would be legally unnecessary. New opt-out or message frequency limitations on the non-marketing exemptions are not required by the TRACED Act.
The FCC on Thursday will also consider a Notice of Proposed Rulemaking (NPRM) to implement Section 10(a) of the TRACED Act on creating “an online portal for private entities to submit information about robocall and spoofing violations.”
According to the NPRM, “Congress directed the commission to establish regulations, no later than June 30, 2021, to create a process that ‘streamlines the ways in which a private entity may voluntarily share with the commission information relating to’ a call or text message that violates the law regarding robocalls or spoofing.”
In the letter to the FCC, Dempsey calls for it to adopt a safe harbor when callers comply with other federal regulations that already govern telephonic outreach and ensure that such requirements or restrictions do not create tension with other federal law.
For example, the Consumer Financial Protection Bureau’s recent debt collection rule establishes a limit of seven calls per week, among other requirements.
“If callers—like ACA’s members—comply with the CFPB’s call limits, they should not be subject to conflicting FCC conditions on the number of calls allowed under the non-marketing exemptions,” Dempsey said.
The FCC, if it does adopt new limits, should at a minimum respect the CFPB’s recent rule and other federal rules on debt collection outreach.
“Overall, ACA supports the commission’s efforts to combat illegal automated calls while at the same time protecting lawful callers from abusive TCPA lawsuits,” Dempsey said. “Through its actions implementing the TRACED Act, ACA is confident the FCC can strike that balance in its resolution of the non-marketing exemption. ACA also urges the commission to keep the exemption as-is, but at a minimum respect the efforts of parallel regulatory agencies. Such a disposition would be lawful, consistent with the record evidence, and consonant with the commission’s policy goals.”