FCC Seeks Comment on Two Petitions Related to Recent TCPA Rule Changes

On November 1, the Federal Communications Commission's Consumer and Governmental Affairs Bureau released public notices seeking comment on two recently filed petitions related to the Telephone Consumer Protection Act (TCPA) and the rule changes that took effect on October 16, 2013. The Bureau set deadlines for initial comments of December 2, 2013, while reply comments are due December 17, 2013.
 
The first petition was filed by the Direct Marketing Association (DMA). DMA requests that the FCC forebear from enforcing, with respect to existing written agreements between businesses and their customers, the new requirements that prior express written consent be obtained through a disclosure that any transaction is not conditioned upon agreeing to receive autodialed and/or prerecorded telemarketing messages. DMA asserts that reliance on previously obtained consents that fail to make the disclosures required under the new rules would expose marketers to unnecessary regulatory sanctions and class action lawsuits for failure to make the specified disclosure, “even though the previously obtained consent otherwise complies with the written consent requirements” of the new rules.
 
The second petition was filed by the Coalition of Mobile Engagement Providers (CMEP). CMEP effectively seeks the same relief as DMA, although CMEP is seeking a declaratory ruling that the new TCPA rules do not nullify those written express consents that were provided by consumers prior to new rule’s effective date of October 16, 2013. CMEP asserts that its interpretation of the FCC’s order implementing these rule changes is consistent with “the fundamental principle that new rules are prospective in nature” and that practical policy considerations of not requiring consumers to go through the process of re-opting in to receive marketing messages weigh in CMEP’s favor.
 
The FCC currently has two other items on circulation related to the interpretation of the TCPA. GroupMe, Inc.’s petition for declaratory ruling seeks a declaration related to the scope of equipment that could be considered an automatic telephone dialing system, while the Cargo Airline Association seeks a declaratory ruling concerning a third party’s reliance related to the prior express consent given by a consumer to a business.
 
With approximately 1,200 TCPA lawsuits being filed within the last year alone, many stakeholders in the mobile marketing space are continuing to look to the FCC for answers to quell uncertainty in the industry and end frivolous lawsuits. Now that Senate has confirmed Tom Wheeler as the new FCC Chairman, the FCC is in a better position to act on these petitions and issue some common-sense clarifications to the existing TCPA regulations, while at the same time protecting consumers from unwanted calls and texts.
 
If you are interested in commenting on the petitions or would like more information about the TCPA rule changes, please contact Michael B. Hazzard or Ross A. Buntrock.