As previously reported here, the Federal Communications Commission (FCC) issued a proposed rule in December 2020 that would place new call-frequency limitations and opt-out requirements on certain prerecorded non-telemarketing calls to residential numbers that can be called without prior consent under the Telephone Consumer Protection Act (TCPA). The TCPA has long allowed unlimited prerecorded calls to residential lines made (a) for non-commercial purposes, (b) for non-telemarketing commercial purposes, (c) by tax-exempt nonprofit organizations, and (d) for health-related purposes. Under the new rule, however, to be exempt from the TCPA’s consent requirements, callers would be limited to three prerecorded non-commercial, non-telemarketing, or non-profit calls per 30 days, or three calls per week (one per day) for healthcare-related calls, and would need to include an opportunity to opt out of prerecorded calls as part of the message. The effective date of the proposed rule was delayed indefinitely pending approval by the Office of Management and Budget (OMB) and publication in the Federal Register. In the meantime, two industry groups filed petitions for reconsideration, since the regulation, as drafted, would require prior express written consent to exceed the call frequency limits and would be extremely burdensome. At long last, the FCC has issued a ruling on those petitions.
The ruling brings good news and bad news for would-be callers. The bad news is that the FCC has refused to increase the number of permitted calls, stating that it was required by the Telephone Robocall Abuse Criminal Enforcement and Deterrence (TRACED) Act to create some limit. The good news is that the FCC agreed that the prior express written consent language was an error and has amended the rule to require only prior express consent to place more than three non-telemarketing calls per 30 days (or per week for healthcare calls).
The amended regulation goes into effect six months from the date of its publication in the Federal Register, which is still forthcoming. However, the OMB has already approved the rule, so the declaratory ruling appears to clear away the final barrier to publication. The rule will likely have a significant impact on healthcare companies, debt collectors, and other entities that have relied on these longstanding exemptions in the past, and the six-month implementation time frame may make it difficult for companies to implement any meaningful technical solutions. We will continue to monitor this issue and any future requests for clarification.