Silence is Golden: FCC’s Decision Not to Address Cunningham-Moskowitz Petition in TCPA Public Notice Speaks Volumes

Womble Bond Dickinson
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Sometimes its what’s missing that says the most.

The FCC’s Public Notice respecting the scope and architecture of the TCPA is notable for numerous reasons, as my Washington D.C. colleagues just explained yesterday. Facially the Public Notice simply seeks comment to allow the FCC to build a record sufficient to respond to the issues raised in ACA Int’l.  But look closer.

Hidden just beneath the surface is an effort by the Comission to build a record on other issues that do not directly related to anything addressed in ACA In’tl at all. For instance, the FCC specifically elected to seek comment on the U.S. Chamber of Commerce’s recent ATDS Petition–meaning there will be no opportunity for separate comment on that petition folks– but it also sought renewed comments on the long-pending Great Lakes Petition respecting calls on government-backed debt as well as on a wholly new initiative to standardize revocation (“Don’t *7 Me Baby” may soon be a pop single–more to come on that). This all sets up for a TCPA Omnibus II (this time its personal) where the FCC tinkers and adjusts every piece of the TCPA that wasn’t quite right the first time.

Notably absent from the Public Notice, however, is any reference to the Cunningham Moskowitz petition filed last year. That petition asked the FCC to completely unwind the presumed express consent paradigm that has served as TCPAland bedrock since 2009. While I chuckled at the time the CM Petition was filed, I stopped laughing pretty quick. Rather than ignore the Petition, the FCC swiftly sought Public Comment on the CM Petition on February 8, 2017, which nearly gave me a heart attack.

For the last 15 months, however, TCPAland has not heard a whisper about the CM Petition–although Craig Cunningham continues to file TCPA cases likes its going out of style (but, maybe it is?) That silence hasn’t meant much, however. The FCC really has not moved forward on any TCPA petitions pending ACA In’tl, so no news on the CM Petition was simply no news.

That silence just became deafening, however.

The FCC’s decision to omit reference to the CM Petition in the latest TCPA Public Notice suggest, at a minimum, that the issue is not top of mind. More likely, however, the failure to mention core express consent principles– or the CM Petition directly–speaks to a deliberate decision by the Commission that Omnibus II is not going to wade into those few TCPA watering holes that remain crystal clear. That means, presumed express consent is going to remain the law of the land, whatever else may come tomorrow.

So while trying to figure out what the FCC is going to do next is a challenging, if not impossible chore, I think TCPAlanders can safely bet on one move the FCC is not going to make–a sneak attack on our beloved presumed express consent.  Knowing that the CM Petition is out to pasture is certainly a thought that will help me sleep tonight.

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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.

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