June 21, 2021

Volume XI, Number 172


June 18, 2021

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Looking Lonely: Commenters Show Little Love for Serial Plaintiffs’ Petition

The initial comments are in on the Petition of plaintiffs Craig Moskowitz and Craig Cunningham to require written consent for autodialed informational calls, and reactions are overwhelmingly negative. A diverse group of trade associations, nonprofits, medical institutions, and others flooded the docket with over thirty formal comments opposing the Petition. In addition to these formal comments, there were several short, informal comments submitted via the FCC’s “express” filing system by employees of credit unions and other financial institutions opposing the Petition. Just three comments expressed support.

The Retail Industry Leaders Association (RILA) filed comments noting that the Petitioners failed to identify any consumer confusion, or anything else for that matter, that would warrant initiating a rulemaking to redefine “prior express consent.” It explained that the Petitioners’ proffered interpretation would needlessly impose onerous burdens on callers and deprive consumers of desired and expected communications.

Like RILA, other commenters generally noted that the FCC’s interpretation of prior express consent has been settled for 25 years, and that the time for challenging that interpretation at the administrative level has long passed. Commenters further emphasized that upsetting this established framework would have significant negative implications for consumers’ ability to receive desired informational calls – many of which convey crucial safety-related information. As commenters noted, the Petition would impose substantial hardships on small businesses and impede efforts by state and local governments to apprise citizens of deadly weather conditions, road hazards, and other public dangers. The comments also highlighted the recent upswing in costly, vexatious litigation instigated by TCPA plaintiffs like the Petitioners, and urged the FCC to refrain from creating still more litigation exposure for businesses trying to provide their customers with important information.

The only support for the Petition came from a professional TCPA plaintiff (Diana Mey), a plaintiffs’ TCPA firm (Anderson + Wanca), and an interest group that has been involved in TCPA litigation (the National Consumer Law Center). The longest of these was three-and-a-half pages.

Reply comments are due on March 27. We will continue to monitor the proceeding and report on any notable developments.

© 2021 Faegre Drinker Biddle & Reath LLP. All Rights Reserved.National Law Review, Volume VII, Number 80



About this Author

Michael Daly, Drinker Biddle Law Firm, Philadelphia, Litigation and Retail Attorney

Michael P. Daly defends class actions and other complex litigation matters, handles appeals in state and federal courts across the country, and counsels clients on maximizing the defensibility of their marketing and enforceability of their contracts. A recognized authority on class action and consumer protection litigation, he often speaks, comments, and writes on recent decisions and developments in the class action arena. He is also a founder of the firm’s TCPA Team; the senior editor of the TCPA Blog, which provides important information and insight...

Anthony Glosson, Drinker Biddle, Privacy & Communications Lawyer

Anthony D. Glosson assists clients with a range of privacy, communications, and regulatory compliance matters. He is the author of several publications in the field of technology law, and has been selected as a keynote speaker for a Capitol Hill discussion on active cyber defense.

Prior to joining Drinker Biddle, Anthony worked on numerous privacy and communications matters while serving as a law clerk for FCC Commissioner Ajit Pai, technology advocacy group TechFreedom, and state policy forum American Legislative Exchange...

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