On August 1, 2014, the FCC issued a Public Notice seeking comment on a petition filed by Santander Consumer USA, Inc. (“Santander”), which requests an expedited declaratory ruling from the FCC to clarify the meaning of “prior express consent” with respect to non-telemarketing calls and text messages to cellular telephones, which include informational messages (e.g., messages regarding school closings or messages containing flight status information) and debt collection messages under the TCPA. Comments in response to the Public Notice are due September 2, 2014, and reply comments are due September 15, 2014.
The FCC’s rules implementing the TCPA prohibit, among other things, non-telemarketing calls and text messages to cellular phones using an automatic telephone dialing system (“ATDS”) or an artificial or prerecorded message unless the consumer has provided “prior express consent.” In its petition, Santander asks the FCC to “clarify and confirm” that “prior express consent” to receive non-telemarketing calls and text messages cannot be revoked.” Specifically, Santander argues that “prior express consent” to receive non-telemarketing calls and text messages sent using an ATDS or an artificial or prerecorded message is irrevocable because no right to revoke “prior express consent” is provided in the TCPA, the FCC’s rules, or prior regulations and rulings. According to Santander, the lack of such an explicit statement means consumers do not have the right to revoke consent.
If the FCC interprets the TCPA to include a right to revoke “prior express consent” to receive non-telemarketing calls and text messages, Santander requests in the alternative that the FCC confirm the caller may designate the exclusive method the consumer must use to exercise the right to revoke consent. In its petition, Santander stresses the need for revocation of “prior express consent” in writing in order to create a definitive record upon which businesses may rely. Santander specifically proposes a caller may require consumers to use one of the following methods to effectively revoke “prior express consent”: (1) in writing at the mailing address designated by the caller; (2) by email to an address designated by the caller; (3) by text message sent to the telephone number designated by the caller; (4) by facsimile to the telephone number designated by the caller; and/or (5) as prescribed by the Commission hereafter as needed to address emerging technology. The FCC seeks comment on whether a caller may designate consumers use one or more of the above-mentioned methods in order effectively revoke “prior express consent.”
In the Public Notice, the FCC notes Santander’s claim that the increase of TCPA litigation and inconsistent court decisions on the issue of revocation of “prior express consent” is evidence of the need for clarity. Whether “prior express consent” can be revoked, and the manner in which it can be revoked, are critical issues for entities that initiate non-telemarketing calls and text messages to cell phones, which include the informational communications that the FCC has sought to facilitate and protect under the TCPA framework.