On October 17, the Direct Marketing Association petitioned the Federal Communications Commission in regards to enforcement of the new rule's express written consent requirements as it relates to consumers who have previously provided consent to receive telemarketing calls or text messages. Specifically, the DMA asks the agency to forbear enforcement of requiring consumers' written agreement to state that their consent is not conditioned on a purchase or sale and that such messages will be made using an autodialer. In its petition, the DMA notes that requiring such disclosures would likely confuse consumers who have previously provided their consent to receive such communications and that the new requirements exceed the FCC's stated objective in revising its rules to conform to a similar FTC regulation.

Particularly, the petitions note that the FTC rule only prohibits a person from conditioning agreement to receive these messages on a purchase or sale, whereas the FCC rules go beyond that by requiring that this language be included in the agreement itself. On the autodialer disclosure, the DMA's petition states that "[t]he disclosure that the marketer will use an "autodialer" has no counterpart in the FTC rule and similarly serves no practical purpose: if an autodialer is not [emphasis in original] used, neither the rule nor the statute applies."

To read the petitions, click here.

Why it matters: In its petition, the DMA notes that it does not seek forbearance from the enforcement of the general requirement that marketers seek prior express written consent for telemarketing calls and messages, as most marketers already obtain some form of written consent from consumers to send such messages. But, as the new rule relates to existing opt-ins, the DMA requests that "the FCC forbear from enforcing, in regards to existing written agreements, that portion of the new rule that requires a disclosure that sales are not conditioned on executing the written agreement and that the seller will use an autodialer." It is unclear whether the FCC will ultimately acknowledge and rectify the inconsistencies and industry challenges raised by the DMA's petitions. But, until and unless the FCC responds to these petitions, the new FCC rule remains in effect and marketers are advised to comply with those requirements so as to avoid an allegation or challenge to its marketing practices.