Written Consent Required for Informational Calls? How the FCC’s Recent TCPA Ruling May Have Expanded PEWC Requirements

As we have reported, the FCC’s recent ruling implementing Section 8 of the TRACED Act was a really big deal: it limited the number of calls permitted under certain extremely-valuable and important exemptions related to prerecorded calls to landlines. But it turns out that the ruling may have actually done much more, albeit likely by accident.

Here is the issue: 47 C.F.R. § 64.1200(a)(3) previously provided that “[n]o person or entity may… [i]nitiate any telephone call to any residential line using an artificial or prerecorded voice to deliver a message without the prior express written consent of the called party.” Exempted from this requirement were, inter alia, all calls made for a commercial purpose that did not include marketing content, all non-commercial calls, all HIPPA calls, etc.

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Since these were wholesale exemptions, the section required written consent to place any non-exempt calls. Marketing calls were the only thing left within its gambit. Because the exceptions to 64.1200(a)(3) were so broad that they basically covered everything but marketing calls, the restriction was drawn very narrowly and required the highest level of consent.

Well, when the FCC implemented its new call limitations it limited the exemptions of 64.1200(a)(3) without addressing the express written consent requirement–that was presumably never intended to apply to non-marketing calls. So the new reg will read:

[Thou shalt not:]

(3) Initiate any telephone call to any residential line using an artificial or prerecorded voice to deliver a message without the prior express written consent of the called party, unless the call;

(i) Is made for emergency purposes;

(ii) Is not made for a commercial purpose and the caller makes no more than three calls within any consecutive 30-day period to the residential line and honors the called party’s request to opt out of future calls as required in paragraphs (b) and (d) of this section;

(iii) Is made for a commercial purpose but does not include or introduce an advertisement or constitute telemarketing and the caller makes no more than three calls within any consecutive 30-day period to the residential line and honors the called party’s request to opt out of future calls as required in paragraphs (b) and (d) of this section;

(iv) Is made by or on behalf of a tax-exempt nonprofit organization and the caller makes no more than three calls within any consecutive 30-day period to the residential line and honors the called party’s request to opt out of future calls as required in paragraphs (b) and (d) of this section; or

(v) Delivers a “health care” message made by, or on behalf of, a “covered entity” or its “business associate,” as those terms are defined in the HIPAA Privacy Rule, 45 CFR 160.103 and the caller makes no more than one call per day to each patient’s residential line, up to a maximum of three calls combined per week to each patient’s residential line and honors the called party’s request to opt out of future calls as required in paragraphs (b) and (d) of this section.

(Emphasis added.)

So what’s the big deal?

Under the TCPA calls delivering informational content generally only require express consent, not express written consent. Thus, collection calls to cell phones can be made with mere presumed express consent anytime a number is provided by the debtor to the creditor absent contrary instructions.

But the implication — again, apparently unintended — of the CFR edit, is that a different rule will apply to pre-recorded calls (including avatar/soundboard) to landlines. In that context, the caller will need to have WRITTEN consent to make even INFORMATIONAL calls to landlines using a pre-recorded voice message after the call limits imposed by the Commission are exceeded.

Previously, of course, such calls required no consent at all, but callers presumably expected to be able to make “extra” calls with regular old “prior express consent” as the FCC’s order implied. E.g. ruling at par 20 (“In addition, as discussed above, callers can make more than three non-commercial calls using an artificial or prerecorded voice message within any consecutive 30-day period by obtaining the prior express consent from the called party, including by using an exempted call to obtain consent.”)

Obviously, you can’t use an exempted call to obtain written consent, unless the recording of a call constitutes a written agreement, but it doesn’t. Probably. (That’s an entirely separate can of crunchy worms.) The point is the FCC’s order plainly appears to assume that regular express consent will work for informational calls exceeding the call limit– but that is not what the CFR edits are going to say.

I have it on good authority that a few trade groups are dreaming up a fix to this issue — if it even is an issue — but in the short term callers would be well advised to take a note here:

JUST BECAUSE YOU HAVE EXPRESS CONSENT THAT MAY NOT BE SUFFICIENT TO PERMIT PRERECORDED CALLS TO LANDLINES FOR INFORMATIONAL (INCLUDING DEBT COLLECTION) PURPOSES ONCE THE NEW CFR LANGUAGE IS EFFECTIVE. INSTEAD YOU MAY NEED TO LIMIT YOURSELF TO 3 CALLS PER MONTH OR OBTAIN WRITTEN CONSENT.

And yes, there is a private right of action here.