Manatt, Phelps & Phillips, LLP

The recently added requirement of prior express written consent to exceed the cap on the number of non-telemarketing, prerecorded calls to customers should be reconsidered and removed, an industry group urged the Federal Communications Commission (FCC) in a new filing.

Enterprise Communications Advocacy Coalition (ECAC), self-described as the only coalition “dedicated exclusively to advocacy on behalf of the contact center industry, those entities that utilize enterprise communications platforms to communicate with their customers and those that develop such platforms,” filed a Petition for Reconsideration with the FCC with regard to the agency’s Report and Order released on December 30, 2020.

In the order, the FCC adopted measures to implement Section 8 of the Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence (TRACED) Act, which became law on December 31, 2019.

Existing Telephone Consumer Protection Act (TCPA) regulations prohibit any person or entity from initiating any telephone call to any residential line using an artificial or prerecorded voice, subject to certain exceptions. Calls that are not made for a commercial purpose are exempt from this prohibition.

Section 8 of the TRACED Act required the FCC to revisit its regulations to ensure that exemptions on the restrictions applicable to calls that transmit non-telemarketing prerecorded messages to residential telephone numbers include requirements governing the classes of parties that may make such calls, classes of parties that may be called and the number of calls that may be made to a particular called party.

The order established numerical limitations: three artificial or prerecorded voice calls within any consecutive 30-day period for noncommercial calls, non-sales calls or calls on behalf of a nonprofit tax-exempt entity to a particular residential line.

Rules limiting the number of certain health care calls to one artificial or prerecorded voice call per day and three per week were also announced.

Calling parties interested in transmitting additional calls above the allotted amount may do so, the FCC said, by obtaining recipients’ prior express consent. However, the prescribed language found in the order’s appendix requires calling parties to obtain the recipients’ prior express written consent to make calls over the limit.

But this standard—prior express written consent—is a defined term under the FCC’s existing regulations that applies only in the context of telemarketing calls, ECAC argued.

Employing the phrase in this context effectively requires callers to obtain recipients’ consent to receive telemarketing messages so that the callers may initiate non-telemarketing messages, ECAC told the FCC.

“This is counterintuitive, defies logic and contradicts the Commission’s statement that callers can simply get the consumer’s prior express consent to make more than the permitted number of calls,” the group wrote in its petition. “For this reason, it must be reconsidered.”

The group suggested that the issue could be remedied with a tweak to remove the word “written” from the appendix while maintaining the numerical limitations of the exemption for noncommercial calls.

Further, the differing numerical limitations pertaining to certain health care messages and other types of messages create “an impermissible content-based restriction which does not satisfy the strict scrutiny mandated by Supreme Court precedent,” ECAC said, referencing Barr v. American Association of Political Consultants, where the Court severed the TCPA’s debt collection exception from the remainder of the statute because it violated the First Amendment.

The FCC cannot satisfy strict scrutiny as it has shown no compelling interest to treat “health messages” differently from the other enumerated messages, according to the petition. “Likewise, it has not—and cannot—demonstrate that the distinction is narrowly tailored to achieve that interest,” ECAC said.

To read ECAC’s Petition for Reconsideration, click here.

Why it matters: ECAC offered two reasons for why the FCC should reconsider its recent order implementing the TRACED Act. First, the requirement to obtain “prior express written consent” requires non-telemarketing callers to adhere to the heightened standard for telemarketing calls; and second, the order makes unconstitutional content-based distinctions in terms of the number of permissible calls.

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