Looking Lonely: Commenters Show Little Love for Serial Plaintiffs’ Petition

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The initial comments are in on the Petition of serial plaintiffs Craig Moskowitz and Craig Cunningham to require written consent for autodialed informational calls, and reactions are overwhelmingly negative. A diverse group of trade associations, nonprofits, medical institutions, and others flooded the docket with over thirty formal comments opposing the Petition. In addition to these formal comments, there were several short, informal comments submitted via the FCC’s “express” filing system by employees of credit unions and other financial institutions opposing the Petition. Just three comments expressed support.

The Retail Industry Leaders Association (RILA), represented by Drinker Biddle’s TCPA team, filed comments noting that the Petitioners failed to identify any consumer confusion, or anything else for that matter, that would warrant initiating a rulemaking to redefine “prior express consent.” It explained that the Petitioners’ proffered interpretation would needlessly impose onerous burdens on callers and deprive consumers of desired and expected communications.

Like RILA, other commenters generally noted that the FCC’s interpretation of prior express consent has been settled for 25 years, and that the time for challenging that interpretation at the administrative level has long passed. Commenters further emphasized that upsetting this established framework would have significant negative implications for consumers’ ability to receive desired informational calls – many of which convey crucial safety-related information. As commenters noted, the Petition would impose substantial hardships on small businesses and impede efforts by state and local governments to apprise citizens of deadly weather conditions, road hazards, and other public dangers. The comments also highlighted the recent upswing in costly, vexatious litigation instigated by TCPA plaintiffs like the Petitioners, and urged the FCC to refrain from creating still more litigation exposure for businesses trying to provide their customers with important information.

The only support for the Petition came from a professional TCPA plaintiff (Diana Mey), a plaintiffs’ TCPA firm (Anderson + Wanca), and an interest group that has been involved in TCPA litigation (the National Consumer Law Center). The longest of these was three-and-a-half pages.

Reply comments are due on March 27. We will continue to monitor the proceeding and report on any notable developments.