By: Andy Regitsky
It’s a new year but the FCC is stuck in the same old place, waiting for a fifth commissioner to be appointed. Gigi Sohn has been renominated by President Biden with the advent of the new Senate. Presumably with the Democrats now having a 50-49 majority, it would be easier for her to be confirmed, especially since the Party would no longer have to depend on the vote of anti-net neutrality and now independent Senator Kyrsten Sinema. Nevertheless, there is no timetable for a vote on Sohn, and no one else appears likely to be nominated in her place. Thus, the FCC is forced to continue focusing on issues in which there is bi-partisan support. One such issue continues to be robocalls. In that spirit, on December 27, 2022, in Docket 02-278, the Commission issued an Order on Reconsideration (Order) and Declaratory Ruling (Ruling), affirming a three-call limit and opt-out requirements for exempted residential callers such as doctors and allowing such callers to obtain either oral or written consent for additional calls. The Commission also clarifies consent rules for calls made by utility companies to residential phones.
The Order arises from the Telephone Consumer Protection Act of 1991 (TCPA), which restricts certain calls to residential and wireless telephone numbers absent their prior express consent or a statutory exemption but authorizes the Commission to exempt certain calls from these restrictions.
In 2019, Congress through the Telephone Robocall Abuse Criminal Enforcement and Deterrence Act (TRACED Act) limited the number of exempted calls that can be made to residential lines, required callers making exempt calls to allow consumers to opt out of future exempt calls, and codified in its rules the existing exemptions for certain types of calls to wireless numbers, including calls by package delivery companies, financial institutions, prison inmate calling services, and healthcare providers. These rules were adopted by the FCC in 2020.
In response to two requests, the agency uses the current Order to grant petitioners’ request to allow exempted callers the option of obtaining either oral or written consent if they wish to make more calls than the numerical limits; however, it denies their requests to reconsider the numerical limits on exempted calls as well as the expanded opt-out requirements. Additionally, the Commission grants ACA’s request that an earlier Commission ruling on “prior express consent” for calls made by utility companies to wireless phones applies equally to residential landlines.
The agency notes,
We grant petitioners’ request that we clarify that callers may obtain consent either orally or in writing to exceed the numerical limits on artificial or prerecorded voice calls to residential telephone lines made under the exemptions contained in section 64.1200(a)(3)(ii)-(v) of our rules. We agree with the petitioners and commenters, including both industry and consumer organizations, that the Commission did not intend to require that such callers obtain consent only in writing. While the text of the TCPA Exemptions Order did not specify that consent must be obtained in writing, we agree with petitioners that the amended rule implementing the numerical limitations appears to require prior express written consent to exceed those limitations. As a result, we amend section 64.1200(a)(3) to make clear that consent for informational (i.e., non-telemarketing) calls to residential telephone numbers can be obtained orally or in writing, consistent with longstanding Commission rules and precedent. (Order, at para. 12).
The effective date of the amended rule contained herein is six months after publication in the Federal Register.
As stated above, the Commission denied petitioners’ request to reconsider the numerical limits on exempt informational calls to residential lines. It argues that limiting the number of exempted calls to residential lines will greatly reduce interruptions from intrusive and unwanted calls and reduce the burden on residential telephone users to manage such calls. It also notes that Congress found that artificial and prerecorded voice calls are often a greater invasion of privacy than live calls because the call recipient cannot interact with the caller.
In the Declaratory Ruling, the FCC granted ACA’s request to confirm that an earlier ruling on “prior express consent” for calls made by utility companies to wireless phone numbers applies equally to residential numbers. Specifically, it confirms that consumers who provide their wireless or residential telephone number to a company involved in the provision of their utility service when they initially sign up to receive utility service, subsequently supply the wireless or residential telephone number, or later update their contact information with their wireless or residential telephone number, have given prior express consent to be contacted by that company at that number with messages that are closely related to the utility service so long as the consumer has not provided instructions to the contrary.
The Declaratory Ruling is effective on the date it was issued, December 27, 2022.
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