The FCC announced at year's end that its January open meeting would consider new rules for calls that deliver artificial or prerecorded voice messages (sometimes referred to as "robo-calls"). The FCC adopted the item at its January 20, 2010 meeting and released the full text of its Notice of Proposed Rulemaking ("NPRM") on Friday, January 22, 2010.

As expected, the NPRM proposes that the FCC eliminate its established business relationship exception for robo-calls and adopt the Federal Trade Commission's ("FTC") requirement that such calls be made only pursuant to the consumer's express written consent. Adoption of the new rules would affect entities such as financial institutions and common carriers that are not subject to FTC jurisdiction, and have so far been required only to comply with the more lenient rules of the FCC.

The Commission will take written comments on the proposal up to 60 days after the Notice of Proposed Rulemaking is published in the Federal Register, and will take replies to those comments up to 30 days after the initial comments are due.

Because of the range and importance of the issues raised in the NPRM, affected entities should give serious consideration to filing comments in the proceeding. Our summary of the NPRM, and some suggestions for comment topics, follow.

What the NPRM Says

The NPRM's principal proposal is that sellers and telemarketers be required to obtain telephone subscribers' express written consent – which would include electronic consent – to receive prerecorded telemarketing calls "even where there exists an established business relationship between the caller and the consumer." The express written consent requirement would apply even for numbers not listed on the national do-not-call registry, and the proposed consent would be effective only if it referred specifically to prerecorded messages (not just to telemarketing calls generally).

The FCC proposes to retain existing exceptions for non-commercial calls, calls that are commercial but do not contain an advertisement (such as an airline's flight delay announcement), and calls by tax-exempt nonprofit organizations. The FCC also proposes an exception for healthcare-related calls, such as immunization reminders, prescription reminders, and similar messages from healthcare-related entities subject to the Health Insurance Portability and Accountability Act.

The NPRM also proposes a requirement that telemarketing calls include an interactive, automatic mechanism consumers can use to make an opt-out request, and seeks comment on a "per-campaign" standard (rather than the present 30-day standard) for measuring the maximum percentage of live telemarketing sales calls that a telemarketer may drop as a result of automated dialing.

Finally, the FCC seeks comment on possible implementation periods for the proposed rules, and suggests emulating the FTC's decision to delay its express written consent requirement for 12 months and delay its interactive opt-out requirement for three months.

Possible Issues for Comment

1. Elimination of the EBR Exception and Requirement of Express Written Consent

Opponents of the principal change proposed in the NPRM – i.e., the elimination of the established business relationship exception to the consent requirement for prerecorded telemarketing calls – face an uphill fight. All five commissioners wrote separate statements in support of the change, and the FCC clearly believes that this is an area in which it needs to catch up with the Federal Trade Commission and harmonize the two agencies' rules. The Commission seemed especially impressed with the consumer comments that were filed with the FTC on this question in 2006, and the strong opposition in those comments to permitting robo-calls on the basis of prior inquiries or purchases involving the caller. As a policy matter, therefore, the Commission is strongly inclined to decide that the established business relationship exception should be dropped.

This is not to say that opposition to the proposal is pointless. Notably, the Commission acknowledges in the NPRM that the legislative history of the Telecommunications Consumer Protection Act suggests that consent requirements will be satisfied by written or oral consent, and the NPRM also invites comment on the possible burdensomeness of the express written consent requirement for callers. Comments based on those points might gain some traction if they are well supported.

2. The Autodialer Restrictions

One observation, at paragraph 20 of the NPRM, seems to come entirely out of left field. There, the Commission notes that the statutory restriction on autodialed calls to mobile telephone numbers and certain other numbers contains a "prior express consent" exception that is identical to the consent exception for prerecorded voice calls to residential numbers. The Commission then "tentatively" concludes that "any written consent requirement adopted by the Commission should apply to both provisions," and asks for comment on that tentative conclusion.

This paragraph reveals the Commission's intention to strengthen what is already one of the most restrictive provisions of the Commission's rules – the prohibition against placing autodialed calls, including text messaging calls, to a mobile telephone number without the called party's prior express consent. This prohibition, which applies to a call made for any non-emergency purpose, was adopted at a time when mobile telephone service was rare and expensive. It makes little sense in a time when many consumers use mobile devices exclusively and purchase the associated service in large buckets of minutes.

Under its present rules, as interpreted by the Commission, callers at least may dial mobile numbers automatically on the strength of a consumer's having given the number to the caller at the time a business relationship was established. However, the proposed express written consent requirements are much more restrictive, and their application to the autodialer regulations could have a profound effect on the ability of businesses to communicate with their customers even for non-telemarketing purposes. Affected parties should consider opposing this suggestion, and might wish to use this opportunity to urge the Commission to revisit the entire question of autodialed calls to mobile devices.

3. Preemption of State Telemarketing Laws

The NPRM is based largely on the Commission's belief that jurisdictional inconsistencies between FCC rules and FTC rules should be eliminated. With that in mind, this is a good time to remind the FCC of the much greater jurisdictional inconsistencies between state telemarketing laws and federal telemarketing laws as those laws affect interstate calling. Those inconsistencies, which cause far more confusion than the differing FCC/FTC requirements, are the subject of several preemption petitions that the FCC has ignored for years.

The NPRM raises a number of important issues, and anyone affected by the telemarketing laws should review the full text, which can be downloaded from http://www.fcc.gov/.