As the Federal Communications Commission (FCC) considers whether’s (DentalPlans) plan renewal calls constitute telemarketing under the Telephone Consumer Protection Act (TCPA), multiple interested parties, including the National Consumer Law Center (NCLC) and the Professional Associations for Customer Engagement (PACE), have submitted comments weighing in on DentalPlans’ petition.

As we discussed here, DentalPlans filed a Petition for an Expedited Declaratory Ruling or Retroactive Waiver earlier this year in response to a class action lawsuit filed against it in 2020. In the suit, the plaintiff alleged that DentalPlans had sent prerecorded telemarketing messages to cell phone numbers without prior express written consent.

DentalPlans asked the FCC to determine that calls informing members that their Dental Savings Plan memberships were about to expire and encouraging them to renew were not telemarketing calls under the TCPA and the FCC’s implementing regulations. DentalPlans pointed to a 2006 FCC order which held that subscription renewal notices were intended to “facilitate, complete or confirm a commercial transaction” and therefore did not constitute advertisements. DentalPlans also asked that the FCC confirm that DentalPlans’s consent language satisfies the requirements for prior express written consent. Alternatively, it requested that the FCC waive its rules for the period prior to December 31, 2020 because DentalPlans had reasonably relied on FCC guidance and provided more consent disclosures than it believed necessary under the applicable law.

The comments submitted to date have been primarily opposed to DentalPlans’s position, with PACE submitting the sole comment in support. The class action plaintiff submitted a comment objecting to the timing of DentalPlans’s petition, arguing that the messages included promotional material and “limited time offer[s]” that went beyond mere renewal reminders to attempt to “win back” customers, and that these calls were made even after subscriptions expired. The plaintiff distinguished these messages from the notices at issue in the FCC’s 2006 order, which merely informed a customer that their subscription would automatically continue if they took no action to cancel, rather than affirmatively seeking a new transaction. The plaintiff also objected to the sufficiency of DentalPlans’s consent disclosures and argued that the TCPA does not allow written consent to be obtained orally under the E-SIGN Act.

The NCLC also opposed the petition, arguing that the messages contained both telemarketing and advertisements, either of which would be enough to require written consent, and that the factual record was insufficiently developed to support a finding of prior express written consent. It also joined the plaintiff’s argument that prior express written consent can never be provided through a telephone call.

PACE submitted a comment in qualified favor of DentalPlans’s petition. While it did not address the exact text of DentalPlans’s messages, it asked the FCC to rule that simple renewal messages noting that a plan would expire on a certain date with instructions on how a member could renew were informational calls, to be distinguished from renewal messages that included a promotion or mentioned that memberships were limited. PACE explained that these reminder calls are good customer service and should not be subject to the same limits as unwanted advertising calls. PACE did not address the arguments regarding provision of prior express written consent or retroactive waiver.

Interested parties wishing to submit reply comments on DentalPlans’s petition should do so by Monday, February 27, 2023. We will continue to monitor the petition and report on the FCC’s ruling.