Caveat Vendor

“Please Reconsider” – The Direct Marketing Industry Asks The FCC To Re-Think Its Position On TCPA Consents

November 08, 2013

Lisa Nowlin and Matt Gibson

On November 1st, the Federal Communications Commission (FCC) released a Public Notice seeking comment on two petitions requesting the agency to forbear from enforcing or clarify aspects of its TCPA regulations regarding prior express written consent, which went into effect on October 16.

The Direct Marketing Association (DMA) asked the FCC to forbear from enforcing Sections 64.1200(f)(i)(A) and (B) of the FCC’s rules, which require the telemarketer to affirmatively disclose that consent is not a condition of sale and that it authorizes the telemarketer to call using an autodialer or prerecorded voice message. The DMA does not take issue with the substantive requirements, only with the mandate to disclose those requirements to consumers.
The DMA worries the FCC’s position will prevent telemarketers from relying on previously obtained written consents, which lacked the disclosures.  According to the DMA, disclosure is not necessary to achieve the underlying purposes behind the requirements. 

Similarly, an ad hoc Coalition of Mobile Engagement Providers requested clarification as to whether they can continue to rely on the written express consents provided by consumers prior to the new regulations, or whether the new disclosure requirements effectively nullify all past written consents.

The FCC could reject both petitions, agree that it won’t enforce the disclosure requirement, or take the view that the disclosure requirement does not invalidate past consents.

Comments on the petitions are due by December 2, and reply comments are due by December 17, 2013.

For more information on the new TCPA regulations, please see our previous blog post and Stay Current.

Caveat Vendor is Paul Hastings’ Consumer Issues blog. We welcome your feedback. Please contact our blog editor with any thoughts or suggestions.