The commenters agree the FCC should correct an error concerning language for prior express consent in its latest TCPA order. Editor’s note: This article is for members only.
5/4/2021 9:00
Several commenters are supporting a petition from ACA International and industry trade associations for the Federal Communications Commission to reconsider certain aspects of its December 2020 order modifying longstanding exemptions to the Telephone Consumer Protection Act.
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.
In response to comments on the timing needed to implement new call limitations, including from ACA, the FCC delayed implementation of the three-call limit for six months from the order’s publication in the Federal Register.
Commenters on the petition largely agreed with ACA and the industry trade associations’ ask, except for the National Consumer Law Center, which opposed in part.
Following is a summary of the comments:
National Consumer Law Center (NCLC)
- The NCLC supports an 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.
- The NCLC supports clarifying that the EEI Declaratory Ruling, which confirmed that the provision of the telephone number to a utility satisfied prior express consent for certain informational calls, applies to wireless and landline calls.
- The NCLC opposes reconsideration of the FCC’s decision to impose do-not-call telemarketing opt-out rules on informational calls. In fact, the NCLC urges the FCC to impose do-not-call opt-out rules on all prerecorded calls.
- The NCLC also urges the FCC to adopt uniform opt-out disclosure language for prerecorded calls. The NCLC claims, citing Verizon, that residential landlines are twice as likely to receive unwanted robocalls than wireless numbers. The NCLC says there is significant record evidence of complaints regarding prerecorded calls to landlines. The absence of robust opt-out rules, the NCLC asserts, is the reason why. The NCLC also claims that any burden associated with do-not-call compliance can be cured if there is consent or an emergency purpose.
- The NCLC opposes reconsideration of the three-calls-per-30-day limitation. Instead, the NCLC urges the FCC to limit the health care exemption from one call per day (and three per week) to three per 30 days.
Sirius XM Radio Inc.
The FCC should issue an erratum to correct the error requiring written consent for certain informational calls. The order did not suggest that written consent would be required. Sirius XM agrees with the petitioners that the FCC adopted the three-calls-per-30 days limit for multiple exemptions without justification in a random line-drawing exercise that violates the Administrative Procedures Act (APA). The FCC should reconsider these limits. The FCC should also reconsider its extension of do-not-call opt-out requirements to informational calls. The order included no finding that the preexisting rules were ineffective, nor does it provide any justification why telemarketing opt-out rules should apply to informational calls.
American Bankers Association, American Financial Services Association, Credit Union National Association, Mortgage Bankers Association, National Association of Federally-Insured Credit Unions, National Council of Higher Education Resources, National Retail Federation, Student Loan Servicing Alliance
The FCC should issue an erratum confirming that written consent is not needed for certain informational calls. Although these industry trade associations agree that the other requests in the petition raise “serious concerns,” the commission’s consideration of those issues should not delay issuance of an erratum.
Alarm Industry Communications Committee (AICC)
The FCC should grant the erratum request. Requiring telemarketing consent for informational calls is inconsistent with the APA and it is unnecessarily burdensome for callers. The FCC should also reconsider its decision to require telemarketing-grade opt-out mechanisms for informational prerecorded voice messages sent to residential landlines pursuant to an exemption. The FCC adopted these requirements without any reasoned explanation.
Overall Petitioner Requests
Commenters Dominion Energy and the Professional Association for Customer Engagement also supported the petition from ACA and the industry trade associations.
ACA and the industry trade association petitioners request for the FCC to:
- Ensure that consumers can continue to receive the important informational calls that they have requested and consented to receive about their utility service, financial accounts, and package deliveries and promptly issue an erratum correcting its codification of 47 C.F.R. Section 64.1200(a)(3), which as drafted would inadvertently require “prior express written consent” for certain informational prerecorded calls placed to residential landlines.
- Continue to recognize the different safety, physical and financial health, and other benefits to consumers of informational calls and reconsider its decision to extend its telemarketing opt-out requirements to certain informational prerecorded calls placed to residential landlines.
- Revisit the one-size-fits-all limitation of three calls per 30 days for exempted prerecorded calls to residential landlines, along with certain limited elements of its exemption for package delivery communications to wireless numbers and evaluate the unique, pro-consumer aspects of financial services, electric utility, and package delivery communications that need to be placed to residential landlines and determine an appropriate exemption framework.
ACA is working on reply comments in response to the messages in support and opposition of the petition, which are due May 7.
Related Content from ACA International:
ACA Petitions FCC to Reconsider TCPA Call Exemptions for Prerecorded Calls to Landlines