The order seeks to provide clarity on exemptions for calls to wireless numbers for callers and consumers. ACA International continues to work with the FCC to correct an error in the order on prior express consent. Editor’s note: This article is available for members only.
2/24/2021 14:30
The Federal Communications Commission’s latest report and order to implement the Telephone Robocall Abuse Criminal Enforcement and Deterrence Act (TRACED) Act—this time focused on call exemptions—is now available and was published in the Federal Register Feb. 25.
The order will take 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. (Emphasis added). Those sections include the codified non-marketing exemptions and the disclosure and recordkeeping requirements.
The FCC will publish a separate document in the Federal Register announcing the effective date of these amendments.
Until then, according to the report and order, the FCC adopts measures to implement section eight of the TRACED Act to ensure that any exemption adopted under Sections 227(b)(2)(B) or (C) of the Telephone Consumer Protection Act includes requirements for:
- The classes of parties that may make such calls;
- The classes of parties that may be called; and
- The number of such calls that may be made to a particular called party.
It will require a limit of three calls per 30-day period (or three calls per week for calls under the Health Insurance Portability and Accountability Act (HIPAA)).
However, in response to comments on the timing needed to implement new call limitations, including from ACA International, the FCC has delayed implementation of the three-call limit for six months from this order’s publication in the Federal Register.
This seems to indicate the FCC is responding to concerns raised that there was a drafting error in the order.
The order was announced in December 2020 and ACA submitted comments to the FCC on the exemptions in October 2020, requesting that the commission not remove or narrow the exemption, including by arbitrarily limiting the number of times a business can contact its customer for non-marketing or informational purposes, imposing a new opt-out process, or adopting additional recordkeeping requirements. Such changes would ultimately not benefit consumers that need to receive non-marketing calls and are unnecessary given existing incentives on businesses to limit the number of non-marketing calls that they place, according to ACA’s comments.
The FCC said in its order that the delay considers the possible compliance costs for small businesses to implement new procedures.
The order also requires an automated opt-out mechanism on prerecorded message calls answered by a consumer and a valid phone number on prerecorded or artificial voicemail messages a consumer can use to return the call and process an opt-out request.
ACA members can learn more about the FCC’s recent TRACED Act orders on the Feb. 10 ACA Huddle.
The order states:
“Small businesses may avoid any additional compliance costs entirely by declining to make such calls unless they first obtain prior express consent from consumers.
A person or entity making an artificial or prerecorded-voice telephone call pursuant to an exemption under paragraphs (a)(3)(ii) through (v) of this section or any call for telemarketing purposes must obtain a consumer’s prior express permission to share or forward the consumer’s request not to be called to a party other than the person or entity on whose behalf a call is made or an affiliated entity.”
ACA and representatives of the American Bankers Association, American Association of Healthcare Administrative Management, American Financial Services Association, and Credit Union National Association met by telephone with members of the FCC’s Consumer and Governmental Affairs Bureau. In the meeting, the associations asked the commission to issue an erratum to correct an error in Appendix A to the report and order issued on Dec. 30, 2020.
Read more on the meeting here. ACA will continue to provide updates for members on the request to fix the language in the latest report and order.