FCC Proposed Rulemaking Presents an Opportunity to Reshape Some Existing TCPA Exemptions

Over the years, one of the biggest challenges many businesses face when assessing TCPA risks posed by a new calling or texting campaign has been determining whether the proposed use case can defensibly rely on one of the exemptions adopted by the Federal Communications Commission (FCC). That is because the FCC has repeatedly cautioned that any exemptions it adopts apply only to the specific set of facts considered by the agency. Sometimes the jigsaw puzzle pieces align, but other times they do not perfectly fit together, making exemptions less useful than they might otherwise be.

As the FCC attempts to make progress on meeting the TRACED Act implementation timelines mandated by Congress, it released another Notice of Proposed Rulemaking (NPRM) on October 1, 2020. This NPRM applies a provision of the TRACED Act by proposing to amend some existing TCPA exemptions to provide greater certainty regarding their scope to businesses and consumers making and receiving calls.

The TRACED Act amendment to the TCPA in December 2019 requires the FCC to “ensure that any exemptions” it adopts “by rule or order” specify three components by December 30, 2020: “the classes of parties that may make such calls,” “the classes of parties that may be called,” and “the number of such calls” covered by the exemption. Currently, the FCC has articulated a range of conditions on calls or text messages that might qualify for exemption. For example, the exemptions for certain exigent-purpose calls made by financial institutions, for healthcare-related calls, and for inmate calling service calls all limit the exempted calls and texts to no more than three times over a specified period. The exemption for package delivery-related calls only permits one call or message for each delivery attempt. But many rules and orders adopting exemptions are missing one or more of the three TRACED Act components described above.

Recognizing that making explicit required components of any FCC exemption can “promote ease and predictability for both callers and called parties as to these exemptions[] and their concomitant limitations,” the FCC now proposes to amend nine existing categories of TCPA exemptions:

  1. For non-commercial calls to a residence, the FCC believes that this exemption already restricts “classes of parties that may be called” to residential telephone lines. It then proposes to limit this exemption to calls made by “informational callers” and invites comments on the number of calls that can be made under this exemption each week or month.
  2. For commercial calls to a residence that do not constitute telemarketing, the FCC likewise believes that this exemption already restricts “classes of parties that may be called” to residential telephone lines. It then proposes to limit this exemption to calls made by “information callers” to the extent that the calls only provide information and “transactional callers” that call to complete or confirm a commercial transaction. It also invites comments on the number of calls that can be made under this exemption each week or month.
  3. For tax-exempt nonprofit organization calls to a residence, the FCC believes that the only missing component is “the number of calls” covered by this exemption and invites comments on the number of calls that can be made under this exemption each week or month.
  4. For HIPAA-related calls to a residence, the FCC likewise believes that the only missing component is “the number of calls” covered by this exemption and invites comments on the number of calls that can be made under this exemption each week or month.
  5. For package delivery-related calls to a wireless number, the FCC believes that this exemption satisfies all three required components and invites comments on any amendments that would ensure the exemption remains in the public interest.
  6. For financial institution calls to a wireless number, the FCC similarly believes that this exemption satisfies all three required components and invites comments on any amendments that would ensure the exemption remains in the public interest.
  7. For healthcare-related calls to a wireless number, the FCC similarly believes that this exemption satisfies all three required components and invites comments on any amendments that would ensure the exemption remains in the public interest.
  8. For inmate calling service calls to a wireless number, the FCC similarly believes that this exemption satisfies all three required components and invites comments on any amendments that would ensure the exemption remains in the public interest.
  9. For cellular carrier calls to their own subscribers, the FCC believes that the only missing component is “the number of calls” covered by this exemption and invites comments on the number of calls that can be made under this exemption each week or month.

This NPRM focuses on the three required components in the context of each of the above exemptions but does not address or propose to revise any existing required consent rules applicable to non-telemarketing calls in general. Additionally, the FCC invites comments on whether it should and how it can “prohibit additional calls [subject to each exemption] after a called party has made an opt-out request to the calling party.” For example, it asks whether it would be meaningful to provide consumers the means to opt out of each type of exempted call and what opt-out mechanisms best balance the interest in honoring consumer choice and any financial or administrative burden on callers.

This NPRM also proposes to codify in the FCC rules a list of exemptions and associated conditions. As drafted, the proposed rule provision resembles a checklist, which could be of some benefit to callers who have only been able to discern the various conditions imposed on exempted calls or text messages by delving into related rulings or orders.

The NPRM will be published in the Federal Register in the upcoming days. Any interested parties that wish to take this opportunity to advocate for certain calls be clearly covered by these exemptions or that needs to provide the FCC with information about the frequency and amount of calls related to, for example, potential bank fraud, will have fifteen days following the publication to file a comment. Reply comments are due twenty-five days after the Federal Register publication. Faegre Drinker’s TCPA team will monitor this docket and related developments as they become available.