In mid-February, the Federal Communications Commission (FCC) released a Public Notice soliciting comment on a request from consumer petitioners for a declaratory ruling or rulemaking related to the “prior express consent” provision of the Telephone Consumer Protection Act (TCPA). If granted, the relief sought could impact a wide variety of businesses that relied upon the current FCC interpretations that are challenged.

In the petition, two consumers seek to reverse two FCC rulings that the provision by a consumer of a telephone number to the caller constitutes “prior express consent” under the TCPA. First, the petitioners challenge a 1992 order in which the Commission determined that “persons who knowingly release their phone numbers have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary.” Second, the petitioners question a 2008 Commission order which concluded that “the provision of a cell phone number to a creditor, e.g., as part of a credit application, reasonably evidences prior express consent by the cell phone subscriber to be contacted at that number regarding the debt.” The petitioners claim that the FCC contravened Congressional intent when it adopted these two orders by improperly reading an implied consent provision into the TCPA. As such, they seek a declaratory ruling or a rulemaking that would result in the following: (1) overturning previous interpretations of the prior express consent provision such that implied consent may be given in certain circumstances; and (2) adoption of a uniform standard to satisfy the prior express consent requirement for both cellular and residential telephone numbers. Comments on these requests are due on March 10, 2017 and replies are due on March 27, 2017.

A second consumer-based TCPA petition was also filed in January, but was subsequently withdrawn, in which a consumer plaintiff in a recently dismissed TCPA action sought clarification of the proper application of the FCC’s prior express consent and revocation of consent rules specifically with regard to calls from common carriers. The petitioner was a T-Mobile subscriber who alleged that T-Mobile violated the TCPA by sending him multiple promotional text messages about T-Mobile products, despite numerous requests by the petitioner to stop sending them. The petitioner sued, but the case was referred for arbitration pursuant to the binding arbitration clause in the petitioner’s service agreement with T-Mobile. According to the petition, the arbitrator in the case was persuaded that as a result of the FCC’s long-standing policy that wireless service providers are not required to obtain “additional consent” from their subscribers prior to initiating prerecorded or autodialed calls or messages for which the subscriber is not charged, the Commission’s rules regarding revocation of consent do not apply to T-Mobile with respect to calls and messages sent to subscribers. The petitioner sought the following relief from the FCC: (1) a ruling that a cellular telephone customer can revoke consent to receive text messages from his or her service provider; (2) a ruling that cellular or common carriers are not exempt from the TCPA; and (3) a ruling that clarifies the “prior express consent” exception for wireless service providers. The petition also requested additional relief specific to the dispute with T-Mobile. The FCC had begun a comment cycle on this petition, but the petitioner and T-Mobile filed a joint motion to withdraw it on the ground that the petitioner had filed a motion for reconsideration with the arbitrator, and that pending the outcome of that motion, the parties had resolved their dispute. We will monitor the FCC’s TCPA docket in case the petition is refiled at a later date.