On February 23, 2023, the Federal Communications Commission (“FCC” or “Commission”) issued a telemarketing Report and Order and Further Notice of Proposed Rulemaking (“FNPR”). Most notably, the FCC telemarketing FNPR seeks to: (1) extend the reach of the Do-Not-Call (“DNC”) Registry to specifically include text messages; and (2) restrict the use of marketing partner lists to obtain consent for calls and texts from multiple parties.
I. FCC TELEMARKETING REPORT AND ORDER
The Report and Order would do two things. First, it would automatically “require mobile wireless providers to block text messages from numbers on a reasonable Do Not Originate list.” The Commission seeks to block texts that are “highly likely to be illegal” because, according to the FCC, no reasonable consumer would want to receive them. The FCC explains that this FCC telemarketing rule is appropriate because: (1) texts from such numbers are likely illegal and may contain malware; (2) the number of unwanted texts continues to increase; and (3) and consumers are likely to open text messages from unfamiliar numbers.
Second, the FCC would require that mobile wireless providers maintain on a public-facing website, a single point of contact for text message marketers to report erroneously blocked text messages. This would help ensure that consumers are not deprived of any text messages that they would want to receive (e.g., school closings, doctors appointments, product order delivery status updates, etc.).
II. FCC TELEMARKETING NPRM
The NPRM proposes two important changes. First, it proposes to extend the National Do-Not-Call Registry’s reach to specifically include text messages. The proposal comes following comments requesting that the Commission decidedly state that text messages are subject to DNC list scrubbing requirements despite previously declaring that text messages are calls for purposes of the Telephone Consumer Protection Act (“TCPA”). How this affects existing litigation involving text messages sent to consumer numbers on the Federal DNC list remains to be seen.
Second, the FCC telemarketing NPRM proposes to ban the practice of utilizing a single consumer consent as grounds for the receipt of calls and texts from multiple parties. The proposal comes in the wake consumer advocate arguments that hyperlinked lists are used to “harvest” consumer information, which is then passed on to unscrupulous telemarketers. The Commission seeks comment on a proposed amendment to § 64.1200(f)(9) that would address if and how TCPA prior express written consent may be obtained for multiple parties to call/text consumers via automated means. To the extent multiple party consent may be valid (which the FCC calls into question), the amendment would require that the “entire list of entities to which the consumer is giving consent . . . be clearly and conspicuously displayed to the consumer at the time consent is requested. To be clearly and conspicuously displayed, the list must, at a minimum, be displayed on the same web page where the consumer gives consent.” In addition, the FCC proposal would require that the entities contained on the list be “logically and topically associated.” This would mean that the entities on the list should share in a common industry vertical, such as auto loans.
WHAT NOW?
Given that the standard telemarketing industry practice has been to rely on marketing partner hyperlinks to generate TCPA consent, the proposed rule changes would have a monumental impact on the industry should they go into effect. Such a seachange would mandate working closely with telemarketing counsel to strike the appropriate balance between ensuring that consumers have been provided clear and conspicuous notice of the specific sellers to which they are providing consent, while also maximizing the marketability of leads. With respect to the FCC’s proposal to extend the DNC’s protections to text messages, the impact will likely be less drastic, as the industry has long operated under the premise that text messaging involves DNC considerations. Nonetheless, an active FCC reinforces the reality that businesses must stay up to date with the fast-changing regulatory environment to ensure that they remain compliant.
We will continue to track this proceeding as it progresses throughout the rulemaking process. The FNPR has been circulated by the FCC and will be discussed at their March 2023 meeting. Should the FCC telemarketing FNPR be published in the Federal Register, it would be effective 30-days thereafter.
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 info@kleinmoynihan.com, 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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