So Let It Be Written… (Updated)

New Petition Seeks To Make All TCPA Consents ‘Written’

New Petition Seeks To Make All TCPA Consents ‘Written’

A recent petition seeks to repeal Commission orders allowing express consent to be implied through knowing provision of a number. Petitioners propose to implement changes that would require all express consent under the TCPA be in writing to, “streamline and harmonize the Commission’s regulatory regime.”

Petitioners argue the 1992 and 2008 (ACA) orders have created confusion and lead to inconsistent judicial decisions, with further confusion caused by consent exemption rulings in 2012 (Robocall Rules), 2014 (GroupMe) and 2015 (Omnibus Rule). Confusion that continues under the Commissions statements that “the scope of consent must be determined upon the facts of each situation.”

Petitioners further argue the commission’s interpretations of prior express consent have “read the word ‘express’ right out of the TCPA.” They argue that allowing express consent to be deemed, contradicts the Commissions own statements in its 2015 order (“Commission’s rules plainly require express consent, not implied or presumed consent.”) Additionally, petitioners argue, the Commission’s interpretations fail under Chevron, as (1) Congress’s intent is clear, since the TCPA explicitly requires express consent (citing cases in the 5th, 6th, 8th, 9th, and 11th to support), and (2) even if ambiguous, amending the TCPA to include implied consent exceeds the Commission’s authority (“TCPA does not (permit) the Commission to create any exemptions … other than … exemptions for calls to a cell phone that are not charged to the called party …“)

Petitioners go on to state that FCC opinions have only served to further complicate matters. The FCC sought to eliminate the Established Business Relationship (EBR) – reversed for faxes in its 2003 order (¶189), and reversed EBRs for Robocalls in its 2012 order (¶82). And its ‘clarification’ in amici briefs such as in Nigro have only served to further complicate the question of when express consent can be ‘deemed.’ While courts may not have agreed with FCC interpretations, they felt bound by the Hobbs Act to enforce the rules as written.

Petitioners would retain exclusions for tax-exempt nonprofit and health care message calls, but otherwise request the repeal of the 1992, 2008 (ACA), 2012 (Robocall Rules), 2014 (GroupMe), and 2015 (Omnibus) orders, to the extent they deem a person providing a telephone number to a caller, in any context, absent instructions to the contrary, as prior express consent. Proposed amendments to the regulations are provided in the Appendices.
jbho: Fits in with Trump’s recent executive order – repeal two regs for every new one?

But seriously folks, the Commission’s rules around consent have become increasingly complex over time, and a simplification is certainly needed. Not sure this petition is the right approach, but it does provide a nice summary of the complexity and parsing out the rules around prior express consent (¶6, p.15).

UPDATE (8 Feb, 2017) The petition has been opened for comment.
● Comments are due 10 March 2017
● Reply comments are due 27 March 2017


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