iI’d like to chuckle at the fact that 12 U.S. Senators just sent a letter to the FCC incorrectly articulating the current position of the FTC, even while they asked the FCC to align with the FTC, but it is too troubling to laugh at.
As I think everyone in TCPAWorld knows by now a MASSIVELY important NPRM proceeding is ongoing before the FCC over the dimensions of consent under the TCPA. At stake is the entire lead generation industry–with tens of thousands of companies (mostly small businesses) and billions in revenue.
Essentially the question is whether consent obtained on a website can be transferred and, if so, under what circumstances.
Under basic principles of common law a contract–and an agreement to consent is just a contract–can be assigned and transferred. Pretty simple.
And the CFR and case law bears that out as well.
Nonetheless, the FCC is being asked by very powerful special interest groups-including the National Consumer Law Center and Public Knowledge–to end the practice of online consent transfers and shutter all comparison shopping websites in the name of stopping unwanted robocalls. And 28 AGs have joined in that request.
In the meantime the FTC has announced a telemarketing sweep and has interpreted the Telemarketing Sales Rules–a narrower body of law–to forbid the transfer of consent where it will result in prerecorded marketing messages. That just took place 2 weeks ago, via social media.
But the U.S. Senate apparently isn’t following the FTC’s linkedin page and has just sent a letter to the FCC that–somewhat embarrassingly–asks the FCC to align with the FTC’s prior position that consent can be transferred after all, just to one seller at a time. You can read the letter here: Lujan Letter Re Single Seller
If it sounds absurd that even several U.S. Senators would be confused about the FTC’s position on consent here that’s because it is. The FTC is trying to regulate by enforcement and by social media, instead of by thoughtful rulemaking. And this is leading to a spectacle as NOBODY knows what the law is currently–not even Senators. Eesh.
The FCC, at least, is trying to do things the right way. But it is under absolutely tremendous pressure right now to adopt the extreme position the FTC has pivoted to–which, by the way, is a complete abomination from a legal perspective.
R.E.A.C.H. has already submitted reply comments laying out why the FTC, PK and NCLC’s positions are wrong, and laughably so. But 12 more senators leaning on the FCC to adopt the errant legal position certainly won’t help industry’s chances here.
In addition to contemplating a TRO to prevent enforcement of the FTC’s new position–that even the U.S. Senate apparently isn’t aware of–R.E.A.C.H. will also be holding meetings with the FCC staff shortly in hopes of calming everything down and getting the train back on the tracks.
In the meantime, here is what SMART businesses are doing RIGHT NOW in light of all of these wild issues. And for more information check out this FREE webinar we did last week:
