FCC Seeks Comment on Petitions to Mitigate Impact of New Robocall Rules

by Davis Wright Tremaine LLP

The Federal Communications Commission (FCC) has issued two public notices requesting comment on petitions that seek to mitigate some of the impact from recent changes to the new Telephone Consumer Protection Act (TCPA) rules that took effect Oct. 16, 2013. Under those revised rules, companies that market to cell phone users by autodialer, prerecorded call, or text messages must have the prior express written consent of the called party, as we explained at length here. However, some aspects of the FCC’s new consent requirements have caused consternation.

The first public notice seeks comment on a petition by the Direct Marketing Association (DMA) asking the FCC to “forbear” from enforcing the apparent requirement that a consumer’s prior express written consent contain a term advising him or her that such consent is not a condition of purchase of a good/service, so long as companies have consents (without that advice) that predate the new rules’ effective date. The second public notice seeks comment on a petition by a coalition of mobile engagement providers asking the FCC to clarify that compliance with the new consent standard would be required only for “new” customers from whom consent is being obtained after the rule’s Oct. 16, 2013 effective date. If either petition is granted, it could provide companies an additional defense to claims likely to be asserted by the very active TCPA class action plaintiffs’ bar.

The FCC’s rules have long required prior express consent before placing autodialed, prerecorded or text calls to cell phones, regardless of call content. Several years ago, the Federal Trade Commission (FTC) adopted rules for prerecorded telemarketing (to both landline and cell phones) that require prior written, signed consent; i.e., an agreement, in writing, that clearly and conspicuously discloses the consequences of consenting, that obtains an unambiguous opt-in, and that is not a condition to the purchase of any good or service. The FCC sought to harmonize its rules, which for telemarketing purposes largely track the FTC rules, by effectuating a similar change.

However, when the FCC did so, it captured not just prerecorded telemarketing to residential lines and cells, but also live-agent autodialed telemarketing to cell phones, as well as telemarketing text messages (the prior express consent standard remains the same for non-telemarketing). And although the FCC indicated in its order effecting the changes that it was adopting the same prior express written consent requirement as the FTC, the text of the FCC rule suggests the written consent language should state that consent is not a condition of purchase, rather than that simply being true as a matter of fact, as the FTC rule provides. The FCC provided a one-year lead time so that companies could update their consents to meet the new standard.

The DMA petition, filed the day after the effective date of the new rules, asks the FCC to “forbear” from enforcing the apparent requirement that prior express written consent must state that consent is not a condition of purchase of a good/service, so long as companies have consents without that term that predate the rule change. DMA also asks for forbearance from the extent to which the text of the rule suggests the prior express written consent agreement must expressly state that an autodialer will be used. DMA additionally filed, concurrent with the petition, an “emergency” request that the FCC stay the effectiveness of the new rules implicated in the forbearance petition, until the FCC issues a decision on DMA’s petition.

The mobile engagement provider petition, filed the same day as DMA’s, comes from companies operating via “the short code channel,” i.e., SMS text messaging. It asks the FCC to clarify that, if a company has prior express consent in writing to receipt of marketing messages to cell phones that satisfies the old standard and predates Oct. 16, 2013, the company may rely on those consents, and need not take additional steps under the new prior express written consent regime. Rather, the coalition requests, the FCC should clarify that compliance with the new standard would be required only for “new” customers from whom consent is being obtained, after Oct. 16, 2013.

It is unclear whether the FCC’s release of the public notices so quickly after filing of the petitions indicates that it is prepared to stay the rules, forbear, or otherwise promptly address the petitions. In some cases, such as with text-message opt-out confirmations, quick FCC issuance of a public notice on a petition is followed by quick FCC action. In other cases, the FCC might put a petition on public notice as a routine matter—even quickly, sometimes—only to take an extended time to act, or to even let the petition lie fallow after comments are filed. There are some petitions before the FCC involving TCPA issues that have been before the agency without action for as long as a decade.

In any event, it is worth noting that DMA’s petition, which asks only that the FCC “forbear” from enforcing rules, rather than for a declaratory ruling on how they apply, or a change to the rules, may not provide complete relief. To be sure, if the FCC grants the petition, that will mean the industry will be able to avoid concern over the FCC bringing enforcement actions based on the feared interpretation of the rule. But FCC forbearance does not necessarily mean that courts will preclude TCPA plaintiffs’ lawyers from relying on the text of the rule in class actions and other cases. Of course, it would strengthen defendants’ hands if the FCC converted the forbearance petition into a declaratory ruling request, or treated it as such by issuing a ruling that, rather than stating the agency would “forbear” from enforcement, instead stated that the rule should apply across-the-board in a manner consistent with what DMA seeks.

That is significant because TCPA class actions are where, at present, the greatest exposure lies, with some settlements over the past few years reaching the double-digit millions of dollars. Recently, one company settled a multi-district TCPA claim for a record $32 million, while another managed to dodge class certification where it faced potentially exposure of $54 billion—that’s right, billion, with a “B.” With so much at stake, even the focused and nuanced clarifications requested in these two petitions may factor into the very active TCPA class action practice. Comments on the petitions are due Dec. 2, 2103, with replies due Dec.17, 2013.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Davis Wright Tremaine LLP | Attorney Advertising

Written by:

Davis Wright Tremaine LLP

Davis Wright Tremaine LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.