On December 27, 2022, the Federal Communications Commission (FCC) released an Order on Reconsideration and Declaratory Ruling clarifying the express consent requirements for calls placed to residential landlines under the Telephone Consumer Protection Act (TCPA) and the Telephone Robocall Abuse Criminal Enforcement and Deterrence Act (TRACED Act).

First, a little background: The TCPA restricts a caller’s ability to place telephone calls to a residential landline using artificial or prerecorded voice messages without the prior express consent of the called party, unless exempted by statute or FCC rule or order.

The FCC has exempted from the TCPA’s prior express consent requirement certain calls made to residential landlines that are:

• Not made for commercial purposes
• Informational calls (commercial calls that do not constitute telemarketing)
• Calls from tax-exempt nonprofit organizations

Subsequently in 2019, Congress enacted Section 8 of the TRACED Act directing the FCC to further clarify these exemptions. In 2020, the FCC released a Report and Order that limited the number of exempted calls made to residential lines to three artificial or prerecorded voice calls within any consecutive 30-day period if they fall under the three above-listed exemptions. The FCC required that a caller obtain prior express consent to place more than the three permitted calls.

In response to this flurry of piecemeal regulation, industry parties, consumer organizations, and individuals filed petitions for reconsideration, contending that the FCC’s orders and rulings inadvertently created confusion regarding the application of prior written consent requirements under the 2020 Report and Order.

Specifically, petitioners noted that the 2020 Report and Order could be interpreted to require callers to obtain prior written consent from residential landline holders to call more than three times in a consecutive 30-day period, despite the fact that a prior FCC ruling had exempted such calls from the prior written consent requirement. The petitioners requested that the FCC eliminate the new consent requirement entirely or clarify that either oral or written consent was acceptable.

The petitioning process ultimately paid off. On reconsideration, the FCC granted certain of the petitioners’ requests, confirming that exempted callers may obtain either oral or written consent to exceed the numerical limits on artificial or prerecorded calls to both residential lines and wireless phone numbers. The FCC denied petitioners’ other requests, which included eliminating the numerical limits on exempted calls entirely.

The amended rule will take effect six months after publication in the Federal Register.

The authors thank Jay V. Prapaisilp, a law clerk in Venable’s Washington, DC office, for his assistance in writing this article.

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