Joint Trades Ex Parte Letter re: TCPA Erratum Request

Ms. Marlene H. Dortch
Secretary
Federal Communications Commission
45 L Street, NE
Washington, DC 20554

Dear Ms. Dortch:

On January 25, 2021, representatives of the American Bankers Association, ACA International, American Association of Healthcare Administrative Management, American Financial Services Association, and Credit Union National Association (the Associations) met by telephone with members of the Federal Communications Commission’s Consumer and Governmental Affairs Bureau. In the meeting, the Associations asked the Commission to issue an Erratum to correct an error in Appendix A to the Report and Order issued on December 30, 2020 (2020 Order, or the Order), as described more fully in this letter.

Through earlier orders, the Commission exempted from the Telephone Consumer Protection Act’s prior express consent requirement certain informational (i.e., non-telemarketing) prerecorded or artificial voice calls placed to a residential number (Informational Calls Exemption). In the 2020 Order, the Commission limited the number of calls that may be placed under the Informational Calls Exemption to three calls within any consecutive 30-day period. Under the Order, a caller can place additional informational prerecorded or artificial voice calls to a residential number with the prior express consent of the called party.

However, to make this change in the regulatory text, the Commission amended Section 64.1200(a)(3) of Title 47 of the Code of Federal Regulations in a manner that appears inadvertently to impose a prior express written consent requirement on informational prerecorded or artificial voice calls to a residential number made outside of the Informational Calls Exemption. Imposing a written consent requirement was clearly in error as it conflicts directly with the text of the Order and other codified regulations in Section 64.1200. The Order applies a prior express consent standard for calls that exceed the informational call limits and states that such consent could be obtained during exempted telephone calls. Specifically, in support of its numerical limitation on exempted calls, the Commission wrote, “callers can simply get consumer consent to make more than three non-commercial calls using an artificial or prerecorded voice within any consecutive 30-day period. Callers can use exempted calls to obtain consent . . . .” Subsequently, the Commission explained that “callers may make more than three non-commercial calls using an artificial or prerecorded voice message within any consecutive 30-day period by obtaining the prior express consent from the called party, including by using an exempted call to obtain consent.” A written consent requirement for informational calls also conflicts with the Commission’s existing definition of “prior express written consent,” which only applies to “seller[s]” that deliver “advertisements or telemarketing messages.” If the Commission had intended to impose a prior express written consent requirement on informational prerecorded or artificial voice calls, it would have amended that definition to encompass informational calls.

To correct the error, the Associations asked the Commission to issue an Erratum that removes the word “written” from 47 C.F.R. § 64.1200(a)(3) and adds a new paragraph that applies the prior express written consent requirement to telemarking prerecorded or artificial voice calls to residential lines. That revision maintains “prior express consent” as the level of consent required for an informational prerecorded or artificial voice call to a residential number that is placed outside of the Informational Calls Exemption. The Associations also suggested that the Commission create a new paragraph stating that prerecorded or artificial voice telemarketing calls may be placed only with the prior express written consent of the called party. This new paragraph could be placed immediately after § 64.1200(a)(3) — as a renumbered § 64.1200(a)(4) — or at the end of § 64.1200(a), as new paragraph § 64.1200(a)(10). A redline version of the Associations’ proposed revision to the pertinent text in 47 C.F.R. § 64.1200(a) is attached as Appendix B.

The Associations appreciate the Commission’s consideration of our request.

Sincerely,

Jonathan Thessin
Vice President/Senior Counsel
Consumer & Regulatory Compliance
Regulatory Compliance and Policy