The Federal Communications Commission (FCC) recently published in the Federal Register, 47 CFR Parts 64 and 68, a summary of a January 2010 Notice of Proposed Rulemaking ("NPRM"). The NPRM is aimed at amending the FCC's rules governing the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, to mirror the Federal Trade Commission's Telemarketing Sales Rule. The proposed rules could severely limit the efforts of collection agencies attempting to use new communications platforms such as cell phones, text messages, and social networks -- which are beyond the scope of the national Do-Not-Call Registry -- to pursue debtors. Any company engaged in large-scale collection efforts should closely monitor these FCC proceedings and consider commenting on the NPRM.


The Telemarketing Sales Rule (which took effect in September 2009 and is discussed in greater detail here) requires telemarketers, inter alia, to obtain a consumer's written consent before placing prerecorded calls (also known as "robocalls"). Currently, entities such as common carriers, banks and insurance companies are not subject to these restrictions because they are under the sole jurisdiction of the FCC. In an effort to create a uniform policy across all industries, the FCC has proposed changes to its TCPA rules that would bring them in line with the Telemarketing Sales Rule. Most notably, the new rules would require sellers and telemarketers to obtain telephone subscribers' express written consent to receive robocalls even when an established business relationship exists between the caller and the consumer. The rules also would require that prerecorded telemarketing calls include an automated, interactive mechanism by which a consumer may "opt out" of receiving future prercorded messages, and the rules would adopt a "per campaign" standard for measuring the maximum percentage of live telemarketing sales calls that a telemarketer lawfully may drop as a result of using automated dialing software. The new rules would exempt certain federally regulated healthcare-related calls from the general prohibition on prerecorded telemarketing calls to residential telephone lines but would not exempt creditors and collection agencies.

Moreover, the NPRM would undo a prior FCC interpretation of the TCPA that allowed calls to a cell phone number where the number is provided to a creditor. The FCC had previously ruled 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." Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Request of ACA International for Clarification and Declaratory Ruling, CG Docket No. 02-278, Declaratory Ruling at 6 (2007). However, under the proposed rule, creditors and collectors could face liability under the TCPA if they fail to obtain written consent prior to using an automated telephone dialing system to call a consumer's cell phone number, even if that number was provided to the creditor as part of an application.


This NPRM does not represent the governing FCC policy. Rather, the commission is seeking comment on whether these proposed revisions would benefit consumers and industry. Comments on the proposed rule are due May 21, 2010. If your company is engaged in debt collection via cell phone communications, you should monitor this NPRM closely and seriously consider whether it would be appropriate for your company to file a comment with the FCC.