When it rains, it pours. Following yesterday’s post, the Federal Communications Commission (FCC) released another Public Notice, this time seeking comment on a proposal from the Cargo Airline Association (CAA) to establish criteria to exempt package delivery notification calls and texts to wireless numbers from the TCPA’s prior express consent requirement. CAA’s request highlights the differences in the TCPA’s treatment of non-telemarketing calls to wireless numbers versus residential lines: prior express consent is required for pre-recorded or autodialed calls to wireless numbers, but it is not required for pre-recorded calls to residential lines. As such, even though CAA’s petition is limited to package delivery notices, the resulting FCC ruling may serve as a bellwether for the agency’s treatment of future requests from other industries that send non-telemarketing notices to their customers.
The FCC’s December 3 Public Notice stems from a presentation that CAA made to FCC staff in mid-November regarding its pending 2012 petition for clarification of the FCC’s policies relating to package delivery notices to wireless numbers. In particular, CAA suggests that one of the underlying justifications for the different treatment of calls to wireless numbers may no longer hold true. When the TCPA was enacted in 1991, wireless customers generally paid a per-minute charge. Today, however, wireless carriers offer block plans or plans that allow for unlimited calls and texts.
Given this fundamental change in billing practices, coupled with the increased prevalence of wireless-only households, the CAA has asked the FCC to exempt non-telemarketing voice call and text message package delivery notices that satisfy the following seven conditions:
- A notification may only be sent to the telephone number for the package recipient.
- Notifications must identify the name of the delivery company and include contact information for the delivery company.
- Notifications may not include any telemarketing, solicitation, or advertising content.
- Voice call and text message notifications must be concise, generally one minute or less in length for voice calls and one message of 160 characters or less in length for text messages.
- Delivery companies shall seek to minimize the number of notifications sent for each package; generally, only one notification (whether by voice call or text message) should be sent per package.
- Delivery companies relying on this exemption must offer parties the ability to opt out of receiving future delivery notification calls and messages, and honor the opt-out requests.
- Each notification must include information on how to opt out of future delivery notifications. Voice call notifications that are answered by a live person must include an automated, interactive voice- and/or key press-activated opt-out mechanism that enables the called person to make an opt-out request prior to terminating the call. Text notifications must include the ability for the recipient to opt out by replying “STOP.” (Source: CAA’s November 19, 2013 Notice of Ex Parte Presentation)
Comments on CAA’s proposal are due to the FCC by December 17, 2013, and reply comments are due by December 24, 2013.