FCC Creates Formal Opportunity To Be Heard on Two Aspects of Its Revised TCPA Rules Requiring Prior Express Written Consent

This post was written by Judith L. Harris.

On Friday, the Federal Communications Commission (FCC) released Public Notices seeking comment on two recently filed requests for guidance on different aspects of its February 2012 Report and Order creating enhanced compliance obligations under its Telephone Consumer Protection Act (TCPA) rules. Both requests relate to that aspect of the Order that requires prior express written consent before placing a telemarketing call/sending a telemarketing text, or leaving a pre-recorded or automated telemarketing voice message to a consumer’s mobile device using an auto-dialer.

The first of the FCC’s Notices (DA 13-2118) relates to a Petition for Declaratory Ruling filed by the Coalition of Mobile Engagement Providers seeking clarification that the revised TCPA rules that were effective October 16, 2013, do not “nullify those written express consents already provided by consumers before that date.” The second notice (DA 13-2119) concerns a Petition for Forbearance filed by the Direct Marketing Association (DMA) asking that the FCC not enforce that portion of the FCC’s revised rules that require that in seeking a customer’s prior express written consent to contact him or her for telemarketing purposes using an auto-dialer or with a prerecorded message, the customer be specifically informed that sales are not conditioned on the customer giving the requested consent. The DMA argues that, in releasing the new rules, the FCC had explained that its primary goal was to make its rules consistent with those of the Federal Trade Commission’s (FTC’s) Telephone Sales Rule (TSR), and yet the FCC’s rule requiring that a marketer affirmatively disclose to its customer that it is not conditioning sale on the written agreement departs from what is required under the FTC’s rules. The DMA asks therefore, that the FCC forbear from enforcing that aspect of its revised rules with regard to existing written agreements.

Comments on both requests are due December 2 and Reply Comments are due December 17. We urge those of you who are concerned about various aspects of the TCPA’s revised rules regarding written consent to make your voices heard. The FCC is a political agency at heart that is attentive to the public and to Congressional will. 

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