Well you don’t see this everyday.

In a ruling issued by the FCC late last month, the Commission essentially admitted it had made a mistake in its earlier ruling–from two solstices ago–setting numerical limits on consentless prerecorded calls to landlines. And it is pretty cool to see.

Backing up, the TCPA forbids calls made using prerecorded calls without the express consent of the called party.

Way back in 1992, however, the FCC exempted all prerecorded calls to landlines made for a commercial purpose that did not constitute telemarketing. And that was a pretty big exclusion.

So in 2019 when Congress passed the TRACED Act it ordered the FCC to go back and re-consider that ruling–and others–and issue new guidance in terms of numerical limits that might be applied to such calls.

Dutifully obeying Congress, the FCC issued a ruling back in December, 2020 that indeed limited the number of calls that could be made without consent–to just 3 per months.

A drop from infinity calls, to just 3 calls, is a pretty big drop.

But there was more.

The FCC’s proposed edit to the CFR to implement the new rule was done in a way that would have required callers to obtain express WRITTEN consent anytime they exceeded the 3 all monthly limit. But since informational calls generally require only REGULAR express consent, the FCC ruling appeared to have–mistakenly–changed the paradigm around informational calling.

ACA filed a petition with the Commission asking it to reconsider this weird nuance of the CFR arguing that the FCC probably had made a mistake in creating this snaffu, and the Comission agreed!

In their December 29, 2022 order the FCC ruled:

We agree with the petitioners and commenters, including both industry and consumer organizations, that the Commission did not intend to require that such callers obtain consent only in writing.32 While the text of the TCPA Exemptions Order did not specify that consent must be obtained in writing, we agree with petitioners that the amended rule implementing the numerical limitations appears to require prior express written consent to exceed those limitations.33 As a result, we amend section 64.1200(a)(3) to make clear that consent for informational (i.e., non-telemarketing) calls to residential telephone numbers can be obtained orally or in writing, consistent with longstanding Commission rules and precedent, as discussed below.

Well look at that!

As a result of the ruling callers that make informational calls to landlines can still make their three free prerecorded efforts per month– collectors must be careful of CFPB rules, however–and then can rely on regular express consent if that number is to be exceeded (or stop using prerecorded calls.)

As a practical matter this just allows folks who DO have express consent–but not written consent–to continue their calling practices. Otherwise these folks too would have been limited to but three attempts per month.

What I don’t like, however, is the FCC uses a bit of loose language in this ruling. It states: “we clarify that callers may obtain consent either orally or in writing to exceed the numerical limits…” But that’s not quite right.

The Commission’s rules presume express consent anytime a number is called for a purpose “closely related” to the purpose for which the number was provided by the called party to the caller–so “oral consent” isn’t really required in this context.

Hmmmm.

Perhaps the Commission made another mistake here, because I don’t think it intended to cast out the entire presumed express consent framework here.

Perhaps another reconsideration petition is on the way? 

Importantly, these rules have been delayed from taking effect because the FCC had not published the rules in the federal registrar, but that appears to be about to change. The Commission specifically references its “upcoming” publication of the rule so–buckle up!

Once published folks will have 6 months to comply.

There’s another angle to the ruling as well, and one I won’t spend much time on–but that is a REALLY big deal.

The FCC’s content-specific exemptions render the TCPA unconstitutional. We can talk about that another day, however. But this ruling contains the first EVER defense by the FCC as one of its content-specific exemptions under the strict scrutiny doctrine:

Particularly in light of the Supreme Court’s recent decision in Barr v. Am. Ass’n of Political Consultants (AAPC), we recognize that a court could view the Commission’s approach to the residential line exemptions as implicating content-based regulation of speech subject to strict scrutiny. Strict scrutiny requires the “government [to] prove[] that the[restrictions] are narrowly tailored to serve compelling state interests.”86 Evaluating the First Amendment concerns raised on reconsideration, we find that the call limitations for our residential line exemptions satisfy strict First Amendment scrutiny.87  As discussed below, we conclude that our call limitations are narrowly tailored to advance a distinct governmental interest—that is, restoring trust in the residential landline network and advancing the health and safety of life—and thus satisfy strict First Amendment scrutiny

Strange to me that the commission would determine this petty exemption satisfies strict scrutiny–hollowed doctrine that it is. The government never tries to defend its exemptions under strict scrutiny. This is the first time it has occurred that I am aware of. Could be a really big deal and feels like a much BIGGER mistake than the one it made the first time around.

(Said with love– you know I love you guys at the Commission, but strict scrutiny is a REALLY big deal and shouldn’t be watered down over… this.)