FCC ISSUES PUBLIC NOTICE SEEKING COMMENTS REGARDING PRIOR EXPRESS CONSENT UNDER THE TCPA

On August 1, 2014, the Federal Communications Commission (“FCC”) issued a Public Notice seeking comment on a petition filed by Santander Consumer USA, Inc. (“Santander”) for declaratory ruling regarding certain aspects of the Telephone Consumer Protection Act (“TCPA”).  Specifically, Santander requests that the Commission “clarify and confirm that ‘prior express consent’ to receive non-telemarketing calls and text messages to cellular telephone sent using an automatic telephone dialing system (‘ATDS’) and/or an artificial or prerecorded voice message cannot be revoked.”  In the event the FCC determines that the TCPA includes the right to revoke “prior express consent” to receive non-telemarketing communications, Santander requests that the FCC clarify whether the caller may require consumers to use one or more of the following methods to effectively revoke “prior express consent”: (1) in writing at the mailing address designated by the caller; (2) by email to the email address designated by the caller; (3) by text message to the number designated by the caller; (4) by facsimile to the number designated by the caller; and/or (5) as prescribed by the FCC hereafter as needed to address emerging technology.

The TCPA prohibits autodialed or prerecorded non-emergency calls to cellular telephones without the prior express consent of the called party.  Santander argues that because neither the TCPA nor the FCC’s prior rulings explicitly provide a right to revoke prior express consent, consumers have no right to revoke prior express consent to receive non-telemarketing calls. Whether “prior express consent” can be revoked and the manners in which it can be revoked are critical issues for entities who initiate non-telemarketing calls and text messages to cellular phones.  In the Public Notice, the FCC notes Santander’s claim that the increased TCPA litigation and inconsistent court decisions on the issue of revocation are evidence of the need for clarity. 

The FCC has sought to facilitate and protect informational communications under the TCPA framework in the past and any ruling on the issue here will have a critical effect on those entities who initiate non-telemarketing calls and text messages to cellular phones.   Comments in response to the Public Notice are due September 2, 2014 and reply comments are due September 15, 2014.  Comments may be filed using the FCC’s Electronic Comment Filing System (“ECFS”).

For more information on the Public Notice or the TCPA generally, please contact Katherine Olson at (312) 334-3444 or kolson@messerstrickler.com.