FCC Releases Adopted TCPA R&O and FNPRM

On February 16, 2024, the FCC released the Report and Order and Further Notice of Proposed Rulemaking (“R&O” and “FNPRM” respectively) codifying certain consumer protections under the Telephone Consumer Protection Act (“TCPA”) and proposing to clarify that the TCPA applies to robocalls and robotexts from wireless providers to their own subscribers.  The item was adopted at the February Open Commission Meeting.

Of particular note, the FCC revised the FNPRM with respect to its proposal to extend the TCPA to communications from wireless providers to their own subscribers.  Rather than propose to extend the TCPA, the adopted FNPRM seeks comment on whether the TCPA should be extended to wireless providers’ communications with their own subscribers.

R&O:

In the R&O, the FCC adopts three changes to its TCPA rules.  First, the FCC codifies a new rule that allows consumers to revoke prior express consent for autodialed or prerecorded or artificial voice calls and autodialed texts in any reasonable manner that clearly expresses a desire not to receive further calls or text messages.  Callers may not infringe on that right by designating an exclusive means to revoke consent that precludes the use of any other reasonable method.  The FCC specifies that the following are reasonable revocation requests: if made using an automated, interactive voice or key press-activated opt-out mechanism on a robocall; via a response of “stop” “quit,” “end,” “revoke,” “opt out,” “cancel,” or “unsubscribe” in reply to an incoming message; or a request submitted at a website or telephone number provided by the caller to process opt-out requests.

Second, the FCC amends its rules to require that callers honor company-specific do-not-call and revocation-of-consent requests as soon as practicable and no more than ten business days after receipt of the request.  Finally, the FCC codifies its prior declaratory ruling that a one-time text message confirming a consumer’s request that no further messages will be sent does not violate the TCPA.  The message may only confirm the called party’s opt-out request, cannot include any marketing or promotional information, and must be sent within five minutes (if it takes longer the caller will be required to demonstrate the delay was reasonable).  Additionally, the FCC clarifies that the revocation of consent only applies to those robocalls and robotexts for which consent is required under the TCPA, not to calls that are exempt from the TCPA.

The Order will become effective 30 days after publication in the Federal Register, except for those rules which contain new or modified information collections, which will be effective six months after OMB approval.  At this time, it appears that only the new rule permitting the one-time text message confirming a requires to revoke consent will not require OMB approval.

FNPRM:

In the FNPRM, the FCC proposes and seeks comment on clarifying that the TCPA applies to robocalls and robotexts from wireless providers to their own subscribers and therefore, such providers must have consent to make prerecorded voice, artificial voice, or autodialed calls or texts to their own subscribers.  The FCC seeks comment on this proposal, whether the FCC should determine wireless providers have effectively obtained consent to make robocalls and send robotexts to their own subscribers by virtue of their unique relationships, and whether consent in this context extends to robocalls and robotexts that contain telemarketing or advertising, among other things.

The FCC also proposes to clarify that the right to revoke consent extends to wireless subscribers when they receive unwanted robocalls and robotexts from their wireless provider, just as it does to any other robocall or text sent pursuant to the TCPA.  As a result, wireless providers would be subject to the rules adopted in the Draft R&O, explained above.  The FCC seeks comment on this proposal and on whether it should codify a separate rule on revoking consent if it determines wireless providers have consent through a unique relationship.

Comments on the FNPRM will be due 30 days after the date of publication in the Federal Register.

Reply comments on the FNPRM will be due 45 days after the date of publication in the Federal Register.

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