FCC Clarifies TCPA Exemption Rules

On December 27, 2022, the FCC released an Order on Reconsideration and Declaratory Ruling clarifying two TCPA rules adopted in the 2020 TCPA Exemption Order in response to Petitions for Reconsideration from ACA International and Enterprise Communications Advocacy Coalition.  You may recall that the 2020 TCPA Exemption Order codified several exemptions and conditions for robocalls to wireless numbers and residential telephone lines.  Relevant for these petitions, the 2020 Exemption Order: 1)  limited the number of calls to residential lines to three artificial or prerecorded voice calls within any 30 day period for three exemptions (the exemptions for non-commercial calls, commercial calls that do not constitute telemarketing, and calls by tax-exempt nonprofit organizations, collectively, the “non-HIPAA exemptions”); 2) limited exempted HIPAA-related calls to a residential line to one artificial or prerecorded voice call per day, up to a maximum of three per week; and 3) required that residential telephone subscribers be permitted to “opt out” of artificial and prerecorded voice calls made pursuant to the adopted exemptions by dialing a telephone number.  The Order on Reconsideration addresses four requests and arguments from the petitioners:

Consent Requirement for Exempt Calls to Residential Lines:  The Order clarifies that callers may obtain consent either orally or in writing to exceed the numerical limits on artificial or prerecorded voice calls to residential telephone lines made under the exemptions adopted in the rules.   The Commission determined there was no reason for the consent requirement for informational calls to residential lines to differ from consent requirements for informational calls for wireless numbers, which allow for either oral or written consent.  This amended rule will be effective six months after the date of publication in the Federal Register.

Numerical Limits for Exempt Calls to Residential Lines:  The Order declines to reconsider the numerical limits on exempt informational calls to residential lines.  The Commission found that the TRACED Act mandates that there be limits on the number of exempted calls that entities can make, that there is ample support in the record to maintain the three-calls-per-thirty-day numerical limit, and that this limit is reasonable in light of the fact that emergency calls and calls for which there is prior express consent are excepted from the limits.  The Commission re-emphasized that callers wishing to make more than three non-telemarketing calls using an artificial or prerecorded voice within any consecutive thirty-day period can obtain consumer consent to make more.  The Order also declines the request to revisit the numerical limit under the wireless exemption for package delivery notifications.

Numerical Limits and the First Amendment:  The Order finds that the numerical limits associated the exemptions are consistent with the first amendment as the health and safety benefits greatly outweigh the cost to robocallers and that existing protections, such as opt-out, STIR/SHAKEN, and call blocking, are insufficient.

Opt-Out Requirements for Exempt Calls to Residential Lines:  The Order denies a request from ACA to reconsider the Commission’s decision to extend to information calls opt-out requirements that had previously applied only to telemarketing calls.  The Commission reiterated that the opt-out gives consumers more control and that such callers have a variety of options and methods they may use to reach consumers.

In the Declaratory Ruling, the Commission confirms that an earlier Commission ruling on prior express consent for calls made by utility companies to wireless phone numbers applies equally to residential numbers.  Specifically, the Commission confirms that consumers who provide their wireless or residential telephone number to a company involved in the provision of their utility service when they initially sign up to receive such service, subsequently supply the wireless or residential number, or later update their contact information with their wireless or residential telephone number, have given prior express consent to be contacted by the company at that number with messages that are closely related to the service, including calls to warn about the likelihood that failure to make payment will result in service curtailment, so long as the consumer has not provided instructions to the contrary. The Commission also confirmed and clarified the definition of “closely related” calls and that upstream electric utility providers may utilize the number provided to call consumers in the same manner as the direct utility provider.

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