On January 3, DentalPlans.com (DentalPlans) filed a petition with the Federal Communications Commission (FCC) seeking a declaratory ruling that: (1) renewal notifications do not constitute telemarketing or advertising under the Telephone Consumer Protection Act (TCPA), and (2) the language in its online enrollment forms and used by its customer service representatives during telephone conversations with potential customers satisfies the disclosure requirements set forth in 47 U.S.C. § 227. DentalPlans is currently facing a TCPA class action in the District Court of Maryland after the plaintiff allegedly received repeated calls from DentalPlans seeking a renewal of the plaintiff’s plan.

Under the TCPA, it is unlawful for any person to make any call using any automatic telephone dialing system or artificial or prerecorded voice unless the call complies with exemptions promulgated by the FCC or was made with the requisite consent. 47 U.S.C. § 227(b). In its petition, DentalPlans relies on a 2006 FCC order regarding facsimiles to argue that its renewal calls do not constitute advertisements or telemarketing messages under the TCPA. There, the FCC held that a facsimile is not an advertisement or telemarketing message if its “purpose is to facilitate, complete, or confirm a commercial transaction that the recipient has previously agreed to enter into with the sender.” In the Matter of Rules & Regs. Implementing the Tel. Consumer Prot. Act of 1991, 21 F.C.C.R 3787, 3812(F.C.C., Apr. 5, 2006). DentalPlans argues its renewal calls to its members do not constitute advertisements because they fall into the precise category of calls that the FCC intended to exclude from TCPA liability, namely “subscription renewal notice[s]” as they were only sent to existing customers who had previously agreed to the same plan.

While DentalPlans argues that since its renewal notifications do not constitute advertisements or telemarketing messages they do not require prior express written consent, DentalPlans nonetheless obtains such consent when the customer first enrolls in a plan either online or over the phone. Therefore, DentalPlans also seeks a declaration that its disclosures satisfy the TCPA and no additional disclosures must be made during its renewal calls.

In the event the FCC does not declare that DentalPlans’ renewal calls are not telemarketing or advertising under the TCPA and that its disclosures do not constitute prior express written consent, DentalPlans requests that the FCC waive the application of the rules for the period prior to December 31, 2020, when DentalPlans modified its script to even more clearly notify customers that they may receive prerecorded messages in the future.

“It would be fundamentally unfair for DentalPlans to face crippling liability based on its reasonable reliance on FCC regulatory language, earlier FCC Orders, and D.C. Circuit statements. DentalPlans relied on the Commission’s prior orders in good faith and should not be exposed to potentially business-ending TCPA liability for providing its existing customers with reminders that their plans were about to expire.”

Troutman Pepper has unique industry-leading expertise with the TCPA, with experience gained trying TCPA cases to verdict and advising Fortune 500 companies regarding their compliance strategy. We will continue to monitor legislative developments and regulatory implementation of the TCPA in order to identify and advise on potential risks.