Third Circuit Decision Broadens TCPA Autodialer Definition? - Klein Moynihan Turco LLP


On May 18, 2023, the Federal Communications Commission (“FCC” or “Commission”) issued a Notice of Proposed Rulemaking (“NPRM”). Among other things, the NPRM proposes that companies honor certain unsubscribe or TCPA opt-out requests within 24 hours of receipt. To be discussed in a future blog, the NPRM also proposes to codify the Commission’s prior ruling that a one-time text message may be sent to confirm a consumer’s revocation of consent. 

Honoring TCPA Opt-Out Requests

Presently, there is no hard and fast time frame within which marketers must honor consumer requests to no longer receive robocalls or commercial text messages delivered to residential or wireless numbers. TCPA opt-out requests for telemarketing calls to residential numbers must be honored within a reasonable period of, not to exceed 30 days from the subject requests. The proposal seeks to create a new definitive time period where none exists by amending existing regulations. In addition, “the NPRM proposes to make clear that consumers may revoke prior express consent in any reasonable manner that clearly expresses a desire not to receive further calls or text messages, including using words such as ‘stop,’ ‘revoke,’ ‘end,’ or ‘opt out.’” The NPRM requests comment on whether the proposed 24-hour period is appropriate for both consumers and industry.

The proposed measure stems from consumer frustration with continued receipt of pre-recorded calls, artificial voice calls, and/or text messages following opt-out requests. The FCC believes that “advances in technology” have made processing TCPA opt-out requests easier than in the past and, as such, that telemarketers can, and should, be able to comply with the 24-hour time frame.

The NPRM and What Comes Next

The NPRM was adopted by the Commission on June 8, 2023. The Commission’s changes will go into effect upon publication in the Federal Register. Interested parties will have 30 days to file comments after publication. In addition to dozens of other comments, twenty-eight (28) State Attorneys General have filed Reply Comments in support of the NPRM. The attorneys general have requested in their comments that the FCC close the “lead generator loophole” and clarify that the TCPA requires that “prior express written consent for telemarketing be between a specific consumer and a specific seller.” Doing so, according to the attorneys general, would better protect consumers from unwanted telemarketing calls/texts. 

This rulemaking comes on the heels of the FCC’s February Report and Order and Further Notice of Proposed Rulemaking (“FNPRM”), which focused on restricting the use of marketing partner lists to obtain consent for telemarketing calls and texts from multiple parties. 

The FCC continues to take a hard look at the delivery of pre-recorded calls and text messages, with the hope of narrowly-tailoring the ability of telemarketers to engage in such activity. 

While this rulemaking reflects the FCC’s ongoing review of the telemarketing industry at large, it does not meaningfully limit or otherwise prohibit any action by telemarketers that are operating in compliance with the TCPA. As the FCC and the state attorneys general attempt to curtail certain activity by unscrupulous telemarketers, businesses must ensure that they remain in compliance with the latest rules and regulations.

If you need to review your telemarketing practices and procedures or if you are the subject of a TCPA lawsuit, please e-mail us at, or call us at (212) 246-0900.

The material contained herein is provided for information purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney.  Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.

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Related Blog Posts:

Revocation of Consent after the DC Circuit’s TCPA Ruling

TCPA News:  FCC Acts to Combat Unwanted Telemarketing Calls

FCC Issues Notice of Proposed TCPA Rulemaking on Reassigned Numbers


David Klein

David Klein is one of the most recognized attorneys in the technology, Internet marketing, sweepstakes, and telecommunications fields. Skilled at counseling clients on a broad range of technology-related matters, David Klein has substantial experience in negotiating and drafting complex licensing, marketing and Internet agreements.

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