So the big vote took place today with the FCC adopting its new ruling requiring “one to one” consent in the lead generation industry.
While adoption of the item was not a surprise–the Democrats maintain a 3-2 majority at the Commission and widely follow the NCLC’s suggestions on just about everything– it was a little surprising (disappointing) that Republican Commissioner Carr stood silent on the issue and approved the ruling. As a result the ruling was approved 4-1.
With all other Commissioners supporting the rule Republican Commissioner Nathan Simington’s still found the courage to blast the ruling in an applause-worthy performance on behalf of American small business.
Commissioner Simington began his remarks by noting that he “hates” receiving unwanted robotexts and calls–like everyone else does–but that is no excuse for the errant ruling the Commission adopted.
Describing the FCC as “over our skis” on the issue, Commissioner Simington stated he would have been pleased to support the original version of the NPRM–one requiring calls to be “topically and logically” related to the website the consumer provided consent on–but the bait-and-switch tactics by the FCC (ironic) in suggesting one minor edit to the CFR before pivoting to a major edit was too much for him to support.
He noted that by seeking further comment on the new rule–you know, by actually presenting the rule to American businesses to comment on– the Commission could have generate a more robust record and found a solution that was workable.
Instead the FCC rushed forward with the rule–essentially under cover of darkness–never revealing the actual rule until it was already set for adoption.
Not good, and Commissioner Simington called the FCC out on it:
[W]e caught small businesses flat-footed and…. [our ruling] only benefits the Plaintiff’s bar.
-Commissioner Nathan Simington, December 13, 2023.
Could not agree more.
Commissioner Simington went on to say the adopted rule “breaks the backs” of small business and is made in a “clumsy” rush and on a thin record that gives the appearance of “arbitrary and capricious” rulemaking.
My goodness.
He also casts doubt on whether the ruling will stop robocalls to begin with. noting that the predatory lenders and bad guys out there are going to ignore the rule anyway. Only the good guys and legitimate small businesses seeking low-cost leads are going to suffer here.
As Commissioner Simington sums it up: this is just another “paper consumer victory for a Commission that is as focused on appearances as reality.”
Well said, sir.
*insert standing ovation from tens of thousands of small businesses here*
In all seriousness, Commissioner Simington’s dissent may pave the way for a successful appellate court challenge–just as former Commissioner Pai’s dissent to the Omnibus did for the ACA Int’l challenge. So it will be very interesting to see how those few entities with standing to challenge the ruling respond here.
Again, lots more coverage on this story today and over the next few weeks. And for those of you attending Lead Generation World, Queenie and I will be covering this in a 45 minute session on the Troutman Amin, LLP stage that YOU CANNOT MISS!!!
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