September 20, 2021

Volume XI, Number 263

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September 17, 2021

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Petitioners Urge Action on Exemptions Recon Filing

TCPAWorld previously reported on a partial Petition for Reconsideration (Petition) filed in connection with the Federal Communications Commission’s (FCC) December 30, 2020 Report and Order (R&O), which addressed certain consent-related exemptions under the Telephone Consumer Protection Act (TCPA) (https://tcpaworld.com/2021/04/05/another-formal-petition-to-correct-exemptions-consent-requirement/).

Representatives of the Petitioners met with FCC Staff recently to discuss the Petition and, what the Petitioners Notice of Ex Parte Presentation filed in CG Docket No. 02-278 (Ex Parte) referred to as the R&O’s “new and counterproductive restrictions on informational prerecorded calls to landlines that have been exempt from the [TCPA’s] prior express consent requirements for approximately thirty years.” https://ecfsapi.fcc.gov/file/10629283283098/Recon%20Petition%20-%20CGB%20Ex%20Parte%20Notice%20(06-28-2021).pdf

The Ex Parte further noted that this “longstanding prerecorded calls exemption is exceptionally important for consumers because it allows them to receive time-sensitive notifications affecting their health and safety. It is especially critical for the most vulnerable communities, like the elderly or those in rural areas, that rely exclusively on landlines. And because the exemption only relates to informational calls, it does not implicate the consumer and privacy harms that are thought to be associated with telemarketing practices because callers have no incentive to place any more informational calls than necessary.”

The Ex Parte reported that discussion focused on the Petition’s following four requests:

  • “To ensure that consumers can continue to receive the important informational calls that they have requested and consented to receive about their electric service, financial accounts, package deliveries, and healthcare, the Commission should promptly correct its codification of 47 C.F.R. § 64.1200(a)(3), which as drafted would inadvertently require “prior express written consent” for certain informational prerecorded calls placed to residential landlines. The Commission should fix this drafting mistake promptly using the language proposed in the Petition.

  • The Commission should revisit the one-size-fits-all limitation of three calls per 30 days per line for exempted informational prerecorded calls to residential landlines. Instead of a per-line restriction, the Commission should adopt limits (e.g., per-account and per-event limits) that better reflect the unique, pro-consumer aspects of financial services, electric services, package delivery, and healthcare communications that must be placed to residential landlines.

  • The Commission should continue to recognize the different safety, physical and financial health, and other benefits to consumers of informational calls and reconsider its decision to extend its telemarketing opt-out requirements to certain informational prerecorded calls placed to residential landlines.

  • To ensure that customers with a landline phone can continue to receive the same outage notifications, safety warnings, and other informational notifications that their neighbors with wireless phones will receive, the Commission should confirm that its past guidance regarding ‘prior express consent,’ including for example as it did in the electric power context under the 2016 EEI Declaratory Ruling, applies with equal force to calls placed to residential landlines.”

In closing the Ex Parte urged that “a clarification is needed more than ever from the Commission because the TCPA Exemptions Order limited the landline exemptions as discussed above. No party in the record opposes the Petition’s request, and [the National Consumer Law Center] agrees there was ‘little reason’ to adopt different standards for wireless and landline calls. We appreciate these comments, and it is imperative that the Commission clear up this uncertainty in the marketplace and clarify that landline consumers can continue to receive the same outage notifications and informational calls that wireless consumers are allowed to receive.”

The pleading period on the Petition closed on May 7. Therefore, the matter is procedurally ripe for FCC action.

© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 183
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About this Author

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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