As we recently reported, the Federal Communications Commission (FCC) provided new maximum call guidance in a December 2020 order (Order) for callers subject to the Telephone Consumer Protection Act (TCPA). The guidance was issued prior to the implementation of new regulations capping the number of permitted calls under the TCPA. But industry members quickly identified a problem — the proposed regulations seem to have a major drafting error.

The FCC’s Order proposed new regulatory language to cap the maximum number of certain calls that can be made to residential phone lines under the TCPA. The TCPA restricts making phone calls to residential lines using artificial or prerecorded voice technology, except when those calls are made (a) for noncommercial purposes, (b) for non-telemarketing commercial purposes, (c) by tax-exempt nonprofit organizations, and (d) for certain health-related purposes under the Health Insurance Portability and Accountability Act (HIPAA). The FCC’s new regulatory language will impose a maximum limit of three (3) calls every 30 days for each of these categories, except for HIPAA calls, which will have a maximum limit of one (1) call per day and no more than three (3) calls per week. The FCC made clear that calls beyond these maximums are prohibited unless a caller receives “prior express consent” from the call recipient.

What is not clear is how this consent must be acquired. The FCC seems to have made a drafting error on this issue. The FCC’s Order explains that “[c]allers can use exempted calls” within the maximum “to obtain consent” to make additional calls. In other words, callers can request prior express consent verbally while on the phone with a call recipient. But the proposed regulation itself (47 C.F.R. 64.1200(a)(3)) would require a calling party to receive “the prior express written consent of the called party” to make additional calls over the maximums allowed.

Commenters have noted that the proposed regulation makes little sense in light of the “prior express consent” framework that has been applied to TCPA calls for years. The existing framework generally does not require written consent for “noncommercial” and “non-telemarketing commercial” calls. These types of calls are the subject of the FCC’s latest Order. By contrast, the consent framework requires prior express written consent when making telemarketing or advertising calls under the TCPA — the types of calls expressly not implicated in the Order. As it stands, the FCC’s proposed regulation imposes written consent requirements that are out of line with the protection long afforded to TCPA callers making noncommercial calls with artificial or prerecorded voice technology.

Trade associations have now formally asked the FCC to remove the written consent requirement from the proposed regulation. They cite the burdens on TCPA callers that will be exacerbated by a written consent requirement placed on calls made for exempt purposes. The American Bankers Association and the Edison Electric Institute have asked the FCC to amend the regulation here and here.

The FCC has not yet responded to the industry confusion it has created. Since the FCC’s new regulation will likely go into effect later this year, compliance departments should be aware that the FCC’s Order may soon be clarified. We will continue to monitor this issue.