March 2, 2021

Volume XI, Number 61

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March 01, 2021

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Array of Comments on FCC’s TCPA Exemption Examination Proposals

As TCPAWorld previously reported, the Federal Communications Commission (FCC) is considering a notice of proposed rulemaking (NPRM) to implement Section 8 of the TRACED Act (https://tcpaworld.com/2020/10/05/fcc-to-review-tcpa-regulatory-exemptions-per-traced-act/0.

Section 8 directed the agency to “ensure that any exemption [under the Telephone Consumer Protection Act (TCPA)] granted under sections 227(b)(2)(B) or (C) [of the TCPA] allowing callers to make artificial voice, prerecorded voice, or autodialed calls without consent include certain conditions.” More specifically, the provision  requires that “any such exemption contain requirements with respect to: (i) the classes of parties that may make such calls; (ii) the classes of parties that may be called; and (iii) the number of such calls that a calling party may make to a particular called party.”

The NPRM addressed nine (9) specific TCPA consent exemptions and included language that would codify in the FCC’s rules four (4) exemptions previously adopted by FCC order.

In each case, the FCC asked whether the particular exemption “remains in the public interest” and focused primarily on numerical limits on exempt calls and the wisdom of adding consumer opt-out requirements for certain exemptions that did not already include them.

The FCC’s formal comment period on the NPRM ended November 3, 2020 (https://tcpaworld.com/2020/10/09/fcc-sets-comment-dates-in-review-tcpa-regulatory-exemptions-per-traced-act/), reflecting a total of 42 comments (initial and reply) submitted from an array of interested consumer (including individuals), healthcare, financial services, insurance, wireless carrier, inmate calling service, and electric utility groups, along with two (2) State Attorneys General (MS and MI).

In general, consumer-oriented comments contended that some informational and transactional exemptions were too broad, supported imposing call limits on the number of calls and opt-out requirements and questioned or opposed requested expansion of the exemptions. Indeed, one consumer (Vincent Lucas) contended that certain specific exemptions (e.g., banks, healthcare) were not needed at all since consumers can consent to what they want.

As for entities relying on exemptions, particularly those relating to informational or transactional calls to residential lines, commenters generally urged that the exemptions be preserved and not narrowed, not now be subjected to call limits or burdensome opt-out mechanisms and in some cases expanded. Most significantly, a number of commenters suggested that these particular exemptions be expanded to include calls to wireless phones. Another observation was that the requirements under certain exemptions that calls to wireless phones be “free-to-end user” should be reconsidered, in light of unlimited data or high usage data plans prevalent today.

Here are some samples of the comments on each of the NPRM’s targeted exemptions. For those interested in the detail, the individual filings can be found in FCC GN Docket No. 02-278 at http://www.fcc.gov.

  • Non-commercial calls to a residence – There was substantial support for continuation of this exemption without any numerical limits or imposition of an opt-out requirement. However, at least one commenter did support a do-not-call procedure and provision of a number at which the caller could be reached to lodge the request (Professional Association for Customer Engagement). The same commenter urged that any changes that impose new requirements on the exemptions (in general) should be delayed for one year. Again, there was support for extending to wireless numbers this (and other) exemptions relating to calls to residential lines (Indiana Credit Union League). The State Attorneys General favored call limitations and an opt-out mechanism, but also urged that the exemption be formally expanded to include calls on behalf of schools.

  • Commercial calls to a residence that do not constitute telemarketing – Similar to non-commercial calls to a residence, the comments contained substantial support for continuing the exemption without numerical call limits on calls and not imposing opt-out requirements, with associated recordkeeping requirements (ACA). Commenters (Credit Union National Association, NCTA) alleged numerical call restrictions raised a First Amendment issue. With respect to debt collection calls, it was noted that the Consumer Financial Protection Bureau was about to issue regulations on opt-out and call frequency issues (Encore Capital). On the other hand, consumer groups (NCLC) argued that there should be numerical call limits on all exemptions. The State Attorneys General supported numerical call limits on this category of calls, and non-commercial and tax-exempt calls to residences. One consumer commenter urged that this general exemption was too broad and should be eliminated and replaced with specific, narrowly tailored exemptions (Vincent Lucas).

  • Tax–exempt nonprofit organization calls to a residence – There were few direct comments on this exemption. The State Attorneys General did support a call limit and opt-out mechanism. Others specifically urged its retention (Noble Systems Corporation).

  • HIPAA-related calls to a residence – Commenters asked that this exemption be extended to wireless numbers (American Health Insurance Plans) and text messages (California Health Plans). Limits on the number of calls were opposed (National Association of Chain Drug Stores, Americas Health Insurance Plans).

  • Package-delivery-related calls to a wireless number – The NPRM observed that the conditions on this exemption “appear to satisfy Section 8….” and would codify the exemption in the rules. Federal Express urged the FCC to relax the limitation on text messages to 160 characters, allow exemption to apply when the number called is that provided by the shipper and extend the exemption to apply to all non-marketing messages related to a package. The State Attorneys General expressly supported the exemption and was open to “marginal additions to the notification limits.”

  • Financial-institution calls to a wireless number – Here again the NPRM observed that the conditions on this exemption “appear to satisfy Section 8….” and would codify the exemption in the rules. Commenters urged that the 160 character limit on texts be lifted (Credit Union National Association) and that any “opt-out” method should be limited to what is specified by the bank (National Association of Federally Insured Credit Unions). Further, it was suggested in fraud situations the limit to call only the number provided by the customer be removed (American Bankers Association). Call limitations were opposed (Illinois Union Credit League).

  • Health-care related calls to a wireless number – Here again the NPRM observed that the conditions on this exemption “appear to satisfy Section 8….” and would codify the exemption in the rules. Most comments sought expansions of this exemption. Comments included request to clarify that “health plans and health care clearinghouses” (California Health Plans) and “managed care organizations” (California Department of Health Care Services) were covered. There were also requests to expand the content or purpose of the calls permitted to include, for example, available benefits, when coverage expires, health risk assessments and to increase the call duration and text character limits (HMS) and the number of permitted calls (Local Health Plans of California). Calls from pharmacies and vaccine notifications should also be included (National Association of Chain Drug Stores). At least one consumer group (NCLC) specifically opposed expansion of this exemption.

  • Inmate calling service calls to a wireless number – Here again the NPRM observed that the conditions on this exemption “appear to satisfy Section 8….” and would codify the exemption in the rules. Two inmate calling service providers (NCIC, Global Tel* Link) supported the exemption, with one urging that the limitation to “collect” calls be lifted, since many such calls are now prepaid or debit in nature.

  • Cellular carrier calls to their own subscribers – Not surprisingly, the wireless industry (e.g., CTIA, Verizon) opposed restricting the number of calls or imposing an opt-out mechanism, noting, among other things, the unique relationship between wireless carriers and their subscribers and the statutory basis for free-of-charge calls to customers. Consumer comments urged numerical limits on these calls and/or opt-outs as well (NCLC, John Shaw). There is already a petition pending at the FCC regarding the right of consumers to revoke consent to receive such wireless carrier calls.

Section 8 of the TRACED Act requires that the FCC “prescribe” or “amend” regulations to implement Section 8 within a year after the statute was enacted, which will be up on December 30, 2020.

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© Copyright 2020 Squire Patton Boggs (US) LLPNational Law Review, Volume X, Number 318
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Paul Besozzi Telecommunications Attorney Squire Patton Boggs Washington DC
Senior Partner

Paul Besozzi concentrates his practice in the wireless, broadband and emerging technology areas. His extensive experience of more than 30 years in the telecommunications field includes regulatory, transactional, legislative and litigation matters for clients ranging from wireless service and infrastructure providers to resellers of long-distance service, including cellular, personal communications services, specialized mobile radio, point-to-point microwave, advanced wireless services and other emerging wireless technologies.

Paul represents clients before the federal and state...

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