TCPAWorld has reported on groups urging the Federal Communications Commission (FCC) to “correct” an apparently unintentional expansion of prior express written consent requirements when the agency recently codified certain Telephone Consumer Protection Act (TCPA) exemptions for informational prerecorded or artificial voice calls to residential lines (https://tcpaworld.com/2021/02/24/groups-reemphasize-need-for-correction-of-fcc-decision-on-tcpa-exemptions-for-certain-informational-calls-to-residences/ ).
Now the Enterprise Communications Advocacy Coalition (ECAC) has formally asked the FCC to reconsider its December 30, 2020 order (Order) to address the same issue. https://ecfsapi.fcc.gov/file/10317854426137/ECAC%20Final%20(01207119xBE3E4).pdf
In its Petition For Reconsideration (Petition), the ECAC, which describes itself as the “only coalition dedicated exclusively to advocacy on behalf of the contact center industry,” focuses primarily on the ability of callers to exceed the newly applied numerical limits by obtaining consent of the called party. The Petition notes that the language of the Order “requires a party to obtain the recipient’s prior express written consent” – a standard applicable to telemarketing calls – “in order to make more than the newly prescribed permitted number of non-telemarketing calls” (emphasis in original) to residential lines using artificial or prerecorded messages. Since this “contradicts the Commission’s statement” in the Order that “callers can simply get the consumer’s prior express consent to make more than the permitted number of calls” (emphasis in original) the ECAC argues the FCC must reconsider its Order in this regard.
But there is more. The ECAC, focusing on the numerical limits applicable to different categories of exempt messages addressed by the Order, raises content-based constitutional issues under the First Amendment. Specifically, the Petition points to differing numerical limits imposed by the FCC’s Order on health care messages and the other categories of exempt calls to residences. The ECAC contends that the “conflicting limitations create differing standards and limitations based on the content and purpose of the message,” which “amount to a content-based restriction.” The Petition argues that the Order therefore “must survive strict scrutiny, requiring the Commission to prove the ‘restriction furthers a compelling interest and is narrowly tailored to achieve that interest.’” Since the FCC has failed to do so, the ECAC contends that the “differing content-based limitations are an unconstitutional restriction that violates the First Amendment of the U.S. Constitution.” The Petition suggests that the limitations on health messages be modified “to be in accord with the other limitations” on calls to residential lines.
As yet, the FCC has not responded to requests that the apparent unintentional expansion be clarified and corrected.