FCC Orders Shed Light on Critical Issues for TCPA Opt-Out Notice Waivers


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November 2016 TCPA Compliance Monitoring Report

The Federal Communications Commission’s (“Commission”) Consumer and Governmental Affairs Bureau (“CGB”) recently released two orders resolving a host of pending Telephone Consumer Protection Act (“TCPA”) matters. The first order, issued on October 14, 2016, grants seven petitions for retroactive waiver of the Commission’s prior-express-written-consent rules.
In 2012, the Commission amended its implementing rules for the TCPA to require that prior express consent be written for all autodialed or prerecorded telemarketing calls to wireless numbers and for all prerecorded telemarketing calls to residential numbers. The rule took effect on October 16, 2013.

Prior to the rule change, many companies documented prior express consent using written releases. However, older releases did not include new disclosures required by the Commission’s 2012 rule change, leading to uncertainty among businesses as to whether older written consents satisfied the Commission’s rules. After the rule took effect, the Coalition of Mobile Engagement Providers (“Coalition”) and the Direct Marketing Association (“DMA”) filed petitions for declaratory ruling seeking clarification that the Commission’s 2012 rule did not nullify preexisting written consents.

In July 2015, the Commission’s TCPA Omnibus Order clarifies that all prior-express-written-consents must include the required disclosures, making consents that predated the Commission’s 2012 rules obsolete. However, the Commission also recognizes the confusion caused by its 2012 order and issued a waiver of its rules to the Coalition and DMA. The waiver covered a period from the effective date of the prior-express-written-consent rules, October 16, 2013, to 89 days after the Commission’s TCPA Omnibus Order, October 7, 2015.

CGB’s October 14, 2016 Order addresses seven petitioners similarly situated to DMA and the Coalition, and CGB grants the petitioners a similar waiver of the Commission’s prior-express-written-consent rules from October 16, 2013 to October 7, 2015. However, CGB emphasized that any calls made after October 7, 2015 must comply with the Commission’s rules.

In the second order, CGB addresses 26 petitions for retroactive waiver of the Commission’s fax ad opt-out notice requirements. In 2014, the Commission confirmed that fax advertisements must contain certain opt out information, even if the recipient agreed to receive the fax ad. In the same order, the Commission also granted a retroactive waiver of the opt-out notice rules to several petitioners for any fax sent prior to April 30, 2015.

CGB’s most recent opt-out notice order grants the same retroactive waiver of the opt-out notice rules to 23 of the petitioners for any fax sent prior to April 30, 2015. It denies in part one of those 23 petitioners, which sought waiver of the rule for faxes sent after April 30, 2015. The order also denies three petitioners “insofar as the petitioners admit to being unaware of the opt-out notice requirement” prior to the Commission’s 2014 decision. Finally, CGB denies three requests for declaratory ruling again asking it to clarify that the opt-out notice rules either lack statutory authority or are not based on Section 227(b) of the Communications Act. The Commission previously addressed these issues in its 2014 order.

This order seemingly clarifies two critical issues for any defendant in a TCPA opt-out notice case. First, while a number of TCPA plaintiffs have argued the Commission should put a deadline for filing on waiver requests, the Commission appears to be willing to continue issuing retroactive waivers related to its opt-out notice rules. However, those waivers will remain limited to faxes sent prior to April 30, 2015. Second, petitioners that were unaware of the opt-out notice rules at the time of the 2014 order, as opposed to confused by the rules, are not similarly situated to the petitioners in the 2014 order and likely will not receive the same retroactive waiver.

If you have any questions about the Commission’s prior-express-written-consent rules, fax ad opt-out notice rules, or would like to file a petitioner for waiver of either set of rules, please contact Seth Williams at slw@commlawgroup.com, Jane Wagner at jlw@commlawgroup.com, or Nate Hardy at njh@commlawgroup.com.

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