FCC Opportunities for TCPA Rule Revision or Interpretation

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The FCC’s far-reaching revisions to its prior TCPA rules took effect on October 16, 2013, without the FCC ruling on a number of pending petitions for clarification or declaratory ruling.  Immediately upon the federal government’s reopening, two additional petitions were filed.  While each presents unique facts and circumstances, each has in common a plea that the agency clarify just how extensive the job will be for telemarketers to seek and receive adequate forms of consumer consent to be contacted.

At least five petitions for clarification or forbearance from the FCC’s TCPA rules predating the effective date of the TCPA rule revisions are still pending, and their resolution could provide some helpful guidance to companies seeking to understand better the contours of their TCPA obligations.  We highlight several of the outstanding petitions:

  • In July 2012, the FCC sought comment on a Petition filed by GroupMe, Inc. seeking clarification on two TCPA issues.  GroupMe asked the FCC to clarify the meaning of the terms “automatic telephone dialing system” and “capacity” under the TCPA.  GroupMe also sought clarification that for non-telemarketing, informational calls or text messages to wireless numbers, which can permissibly be made using an ATDS with the called party’s oral prior express consent that the caller may rely on a representation from an intermediary that they have obtained that requisite consent from the called party.
  • In October 2012, the FCC sought comment on a Petition filed by 3G Collect asking the FCC to clarify that the TCPA and the TCPA rules allow the use of prerecorded messages by operator service providers when connecting collect callers to wireless telephone numbers.
  • In October 2012, the FCC sought comment on a Petition filed by Revolution Messaging, LLC.  The Petition asks the FCC to clarify whether the TCPA and TCPA rules apply to users of the Internet-to-phone text messaging.
  • Also in October 2012, the FCC sought comment on a Petition filed by Communication Innovators seeking clarification that predictive dialers that are not used for telemarketing purposes and that do not have the “current ability to generate and dial random or sequential numbers” are not considered by the FCC to be automatic telephone dialing systems under the TCPA or TCPA rules.
  • In June 2013, the FCC sought comment on a Petition filed by YouMail, Inc. seeking clarification that its “virtual receptionist” software is not an ATDS under the TCPA.  The software reportedly allows smartphone users to replace default voicemail options with customizable telephone answering functions, including automated text message replies to calls.  YouMail also sought clarification that it does not “initiate” calls and that callers provide adequate consent to receive a responsive text message when leaving voicemail messages for a YouMail subscriber.

Many were expecting the FCC to provide its views on how its rules should be interpreted by applying them to the facts presented in these various petitions prior to the effective date of the revised rules.  That did not happen, perhaps because the FCC has been acting under interim leadership without a full complement of Commissioners or because the FCC lost 16 working days in early October due to the partial government shutdown.  Once the FCC reopened, two additional petitions were noticed for public comment:

  • A Petition for Declaratory Ruling filed by a Coalition of Mobile Engagement Providers requesting clarification that the FCC’s revised written consent requirements are only applicable to customers who had not already provided some form of written consent.  Under this proposed clarification, mobile marketers would not need to take additional steps to obtain the revised forms of written consent from existing customers who provided express written consent under the previous rules, even if that consent fails to meet the standards of the revised rules.
  • A Petition for Forbearance filed by the Direct Marketing Association (“DMA”) seeking forbearance from FCC enforcement of sections 64.1200(f)(8)(i)(A) and (B) of the rules as to existing agreements. These provisions define “prior express written agreement” to require that the agreement include a clear and conspicuous disclosure that, “[b]y executing the agreement, such person authorizes the seller to deliver or cause to be delivered to the signatory telemarketing calls using an automatic telephone dialing system or an artificial or prerecorded voice” and “[t]he person is not required to sign the agreement (directly or indirectly), or agree to enter into such an agreement as a condition of purchasing any property, goods, or services.”   The DMA contends that these provisions are inconsistent with the FTC’s written consent provisions and that written consent obtained in compliance with FTC rules may not meet the FCC’s new standards, a situation at odds with the FCC’s stated intent to mirror the FTC rule requirements.  The DMA seeks to have the FCC declare that its new disclosure requirements will not apply to consents provided prior to October 16, 2013, but the petition can also be read as an implicit request for the FCC to revise its rule.

Public comments on the merits of both recently filed petitions are due on December 2, with Reply Comments due on December 17.  These newest petitions join the queue of outstanding petitions that the FCC could profitably act upon to provide more robust guidance to all.  Without this guidance, companies are left to draw their own conclusions as to how broadly or narrowly the FCC’s TCPA rules, including its most basic terms and definitions, should be interpreted.