Over the years, the FCC has established a number of exemptions to the TCPA’s prohibition on unconsented autodialed and pre-recorded or artificial voice calls. Last year, Congress directed the FCC under the TRACED Act to revisit those exemptions to ensure each exemption delineates: (1) the classes of parties that may make such calls; (2) the classes of parties that may be called; and (3) the number of calls that may be made to a particular called party. On December 30, 2020, the FCC issued a Report and Order addressing its obligations under TRACED.

In the Order, the FCC made two key amendments to its exemptions that will impact operations of callers that rely on those exemptions. First, the FCC imposed call volume limits on exempted calls to residential telephone lines made with artificial or pre-recorded voice messages. Second, the FCC imposed certain opt-out requirements upon these exempted calls.

Other existing exemptions, namely those applying to calls to wireless number made by specific industries for specific purposes, were not amended because the FCC found they already met TRACED Act requirements, including with respect to call volume limits. In addition, the FCC’s order did not amend or impose any new requirements upon consented calls, which are permitted under the TCPA, and calls not covered by section 227(b) of the statute, such as manual calls, and autodialed live agent calls to residential lines.

Although the FCC has made certain exemptions available to callers, the Order emphasizes that consent remains a cornerstone in mitigating TCPA risk. To the extent that the FCC’s new call volume limitations impose burdens or additional compliance risk upon callers, the FCC noted that “callers can simply get consumer consent,” to make calls. The FCC’s Order also provides callers with some flexibility in prospectively obtaining consent, stating “[c]allers can use exempted calls to obtain consent if the calls satisfy other applicable conditions.”

The FCC’s new opt-out requirements for exempted calls are familiar. The FCC simply extended existing automated opt-out requirements for pre-recorded telemarketing calls to the various categories of non-telemarketing calls covered by the exemptions. Those opt-out rules require all pre-recorded or artificial voice calls to provide an automated key-press function permitting callers to opt-out of future messages (i.e. “press 2 to opt out of messages”). If the messages are left as voice mails, they must provide a toll-free callback number that allows access to the automated key press opt-out system so consumers may make an opt-out request. Of note, callers must still honor opt-out requests for all types of exempted calls, regardless of whether these technical, automated opt-out rules apply.

The new call volume limitations under the Order vary, but most of the exemptions that were amended are now subject to a three-call-per-month limit. The FCC’s amended and pre-existing call volume limits and opt-out requirements for exempted calls are summarized in the table below.

Callers that rely upon these exemptions must take heed of these new rules, and prepare to adapt their operations accordingly, including by ensuring the implementation of technological solutions to limit calls, and meet opt-out requirements. Alternatively, callers could consider avoiding the new requirements altogether by calling only consented phone numbers, if possible.

From a practical perspective, the FCC’s exemptions cover non-telemarketing calls, so they are subject to the TCPA’s “prior express consent” requirement. In most contexts pertaining to non-telemarketing calls, such as informational or transactional calls, prior express consent is conferred when the called party provides their phone number to the caller. Since this accounts for the most common way callers get telephone numbers in the first place, callers would benefit from examining whether the existence of such consent might alleviate their obligation to comply with the FCC’s new limitations on exempted calls. Callers may also consider a “belt-and-suspenders” approach to risk mitigation, which primarily relies upon prior express consent to avoid TCPA liability, so that the exemptions operate as a backup layer of risk mitigation, rather than the first line of defense.  

The FCC’s new rules will be effective six months from the date the FCC’s amended exemptions are codified in the Code of Federal Regulations. That clock has not yet started, and the rules must go through an administrative process before they are even published, giving callers some time to adapt as needed.

Call Volume and Opt-Out Requirements for Exempted Calls