USTelecom Letter in Support of ABA's Request for Erratum re: FCC’s TCPA Exemptions Order

Marlene Dortch, Secretary
Federal Communications Commission
45 L Street NE
Washington, D.C. 20554

Dear Ms. Dortch:

USTelecom – The Broadband Association (“USTelecom”) and its members are committed to protecting subscribers from illegal and unwanted robocalls while also ensuring that wanted calls are connected. Like any other entity that serves retail customers, voice service providers at times need to communicate with their customers about the service the customers receive, for example, to confirm a service appointment or warn customers about potential fraud on their account. Such non-telemarketing, informational calls generally are expected by, and directly benefit, those customers.

USTelecom therefore echoes the calls from the American Bankers Association et al. (the “Associations”) for an erratum to the Commission’s December 30, 2020 TCPA Exemption Limits Order regarding the type of consent required for prerecorded or artificial voice non-telemarketing, informational calls to residential numbers beyond the three permitted without consent in a consecutive 30-day period. As the Associations explain, through earlier orders, the Commission exempted prerecorded and artificial informational voice calls to residential lines from the requirement for prior express consent under the Telephone Consumer Protection Act. The Commission limited the number of calls to be placed under that exemption in the recent TCPA Exemption Limits Order, but did not adopt, nor intend to adopt, a heightened consent for any excess informational calls – namely, the prior express written consent standard the Commission has applied exclusively to telemarketing calls. Indeed, in first adopting that heightened standard, the Commission expressly found that applying it to all autodialed and prerecorded calls, rather than just telemarketing ones, “would unnecessarily restrict consumer access to information communicated through purely informational calls.”

Unfortunately, the manner in which the Commission amended section 64.1200(a)(3) of its rules appears to inadvertently (and inappropriately) impose the heightened prior express written consent requirement for prerecorded telemarketing calls on prerecorded informational calls that exceed three in a consecutive 30-day period. There is no indication in the text of the TCPA Exemption Limits Order that the Commission intended to require that heightened standard, and instead substantial evidence to the contrary.

To avoid inappropriately and “unnecessarily restrict[ing] consumer access to information communicated through purely informational calls” and to rectify this error, the Commission should move rapidly to issue an erratum that removes the word “written” from section 64.1200(a)(3) and adds a new paragraph regarding the consent requirement for prerecorded telemarketing calls to residential lines.

Please contact the undersigned if you have any questions.

Sincerely,
/s Joshua M. Bercu/
Joshua M. Bercu
Vice President, Policy & Advocacy, USTelecom