Over the past three years, TCPA lawsuits, especially class action lawsuits, have skyrocketed, and with statutory damages of $500 per call, $1500 per call if the violation is willful, damage demands can quickly reach into the tens of millions of dollars. As a result, there are a number of petitions currently pending before the FCC seeking clarification of the FCC’s rules requiring express prior consent by the recipient of an autodialed message. The Consumer and Governmental Affairs Bureau (“CGB”) recently released two public notices seeking comment on two petitions seeking a waiver or clarification of the scope of the Commission’s prior consent rules.
Currently, 15 of these petitions focus on the application of Section 64.1200(a)(4)(iv) to faxes that are sent with “prior express invitation or permission.” Section 64.1200(a)(4)(iv) prohibits the use of a fax machine, computer, or other device to send an unsolicited advertisement to a telephone fax machine unless a fax sent to a recipient that has provide prior express invitation or permission to the sender includes an opt-out notice that complies with the FCC’s rules. These petitions claim that the opt-out notice in Section 64.1200(a)(4)(iv) should not apply to faxes sent with prior express invitation or permission because the TCPA does not grant the FCC the authority to require opt-out notices where express consent is obtained.
Power Liens, LLC (“Power Liens”) filed one such petition on September 18. Specifically, Power Liens asks the Commission to clarify that Section 64.1200(a)(4)(iv) of its rules does not apply to faxes sent with “prior express invitation or permission” of the recipient. Alternatively, Power Liens requests that the Commission issue a declaratory ruling clarifying the statutory basis for Section 64.1200(a)(4)(iv) and ruling that 47 U.S.C. 227 is not the statutory basis of the rule. If the FCC does not issue a declaratory ruling, Power Liens requests a waiver of Section 64.1200(a)(4)(iv) as applied to any solicited fax sent by it after the effective date of the regulation. Finally, to the extent the Commission decides waiver or other relief is appropriate where “prior express invitation or permission” of the recipient is not secured but the sender and receiver have an established business relationship, Power Liens requests that it also be granted such relief.
On September 26, CGB released a public notice seeking comment on Power Liens’ petition. The comment deadline established by the PN is October 10, 2014 and the reply comment deadline is October 17, 2014.
In a separate petition, filed on August 5, the National Employment Network Association (“NENA”) submitted a petition asking the Commission to clarify that an individual’s long-standing relationship with a federal agency implies consent to receive autodialed and prerecorded non-telemarketing calls/text messages under the TCPA, as well as calls made through a public/private intermediary or associated third party that “stands in the shoes” of the federal government. Specifically, NENA requests that the Commission clarify that Employment Networks (“ENs”) under contract with the Social Security Administration’s “Ticket to Work Program” have a mandate to contact program-eligible beneficiaries about program benefits, thus exempting the ENs from the Commission’s TCPA rules restricting autodialed and prerecorded calls/text messages to wireless telephone numbers. NENA requests that the Commission allow the ENs up to four contacts per year with each beneficiary unless a beneficiary opts-out first.
On September 19, CGB released a public notice seeking comment on NENA’s petition. The PN established October 20, 2014 as the comment deadline and November 3, 2014 as the reply comment deadline.
The TCPA’s prior consent requirements can be complicated and depend on whether a caller is engaged in telemarketing or non-telemarketing messaging and whether the caller has an existing relationship with the target of the call. If you have any questions regarding the TCPA’s prior consent requirements or require advice related to TCPA compliance, please do not hesitate to contact Jane Wagner at firstname.lastname@example.org /703-714-1321 or Linda McReynolds at email@example.com /703-714-1318.
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