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On Feb. 8, 2017, two “experienced” plaintiffs who have previously brought claims under the Telephone Consumer Protection Act (“TCPA”) petitioned the Federal Communications Commission (“FCC”) for revision of the rule making authority interpreting Congress’s intent under the TCPA. Specifically, they ask the FCC to change the rule on non-solicitation calls through Automated Telephone Dialing Systems (“ATDS”). They ask the FCC to change the “prior express consent” standard applicable to such calls to be the same as the “prior express written consent” that is now the rule for marketing calls. 

The FCC has the “rule making authority” to issue an order interpreting the requirements of the TCPA without a Congressional re-write of the Act. Last year, the FCC issued such an order specifically mandating a precise form of “prior express written consent” that a business must obtain from a consumer before the business can use an ATDS to make pre-recorded calls or send text messages promoting a product or service. This created much consternation and confusion among businesses and particularly the advertising and marketing industry who were now required to have “magic language” in a written consent. Several petitioners were granted a grace period to come into compliance.

We have previously discussed how simple marketing campaigns that do not follow the strict “written consent” requirements can lead to catastrophic class action damages in the millions of dollars. More recently, we shared an update on court decisions that grant a class action plaintiff standing to bring TCPA claims even when the robocalls were unanswered. This proposed change could lead to even more dramatic constraints on businesses and lead to additional enormous class actions.

Under the current FCC interpretation, a person who willingly provides their cellular phone number has implicitly granted “prior express consent” for a business to contact that person for non-marketing or non-solicitation messages. Of course, things like emergency or safety messages are always excluded from TCPA violation. But, if the proposed change is accepted, then a business can never contact a consumer via ATDS text or recorded voice call without having the very specific consent, in writing, by the consumer (other than very limited emergency exceptions). 

Other than the business hassle of having to restructure service agreements or other authorizations to obtain this written consent, the likely outcome would be a new flood of suits for TCPA violations in the months and years that follow any such change.

The FCC, per its standard procedure, has put this potential rule change out for comment. If you believe your business may be affected, then you may wish to contact skilled counsel to craft comments for you. Keep in mind, however, that you do not necessarily need to incur the expense of a lawyer to make your thoughts known to the FCC. Click this link to get additional information related to calling for comments, which can be done quite simply through electronic means in the event your business could be affected. As always, when facing issues involving potential TCPA violations, it is wise to seek consultation for an experienced TCPA lawyer.

Authors Dan Donnellon and Alex Rodger are Cincinnati attorneys with Bingham Greenebaum Doll LLP experienced in defending TCPA class actions and advising companies on TCPA compliance.

To learn more about Daniel J. Donnellon and his practice, please visit his profile.

To learn more about Alex S. Rodger and his practice, please visit his profile.

Read “PUBLIC NOTICE: Consumer and Governmental Affairs Bureau Seeks Comment on Petition for Rulemaking and Declaratory Ruling Regarding Prior Express Consent Under the Telephone Consumer Protection Act of 1991”

Read "Is Congress Inadvertently Putting Companies Out of Business? The Effect of the TCPA on Unwitting Marketing Efforts"

Read “Court finds class plaintiff has standing to sue for TCPA violations even if calls were unanswered”