We have written previously about the new TCPA regulations that went into effect earlier this month that, among other things, heightened the standards for consent in ways that could pose significant challenges to many companies, particularly those in the business of generating and selling leads.  Now, industry groups are fighting back. 

On the day the new regulations went into effect, three separate petitions were filed seeking reconsideration of different aspects of the new FCC regulations and asking the FCC to forbear enforcement of the rules.  Petitions were filed by the Digital Marketing Association (“DMA”), the Professional Association for Customer Engagement (“PACE”) and a coalition of mobile engagement providers (the “Coalition”).

  • The DMA petition focuses on the new disclosure requirements contained in Section 64.1200(f)(8) (i)(A) and (B) of the Rules, which require disclosure to consumers that sales are not conditioned on consent and that the seller is using an automatic telephone dialing system (“ATDS”).  The DMA is concerned that these provisions could prevent business from continuing to serve customers that have previously agreed (typically in writing or via “confirmed opt-in”) to receive autodialed calls, including text messages.  The DMA points out that the new FCC Rule is inconsistent with both the FCC Order and the companion FTC Rule in this respect.
  • The PACE petition focuses on businesses’ need for clarification as to what types of equipment fall within the definition of an ATDS.  PACE specifically asks the FCC to “(1) define the term ‘capacity,’ as used in the [TCPA] and the Commission’s TCPA regulations, as ‘the current ability to operate or perform an action, when placing a call, without first being modified or technologically altered;’ and (2) modify the definition of ATDS in 47 CFR 64.1200(f)(2) by adding the phrase ‘without human intervention’ to the end of the definition.”  PACE argues that the new regulations exacerbate the problems that already exist with the definition of the ATDS by requiring written consent for ATDS calls, which likely will lead to an explosion of litigation.
  • The Coalition petition asks the FCC to clarify that the “millions” consents that have already been provided under “rigorous industry standards in order to receive certain mobile marketing communications” are sufficient under the new TCPA regulations.  The Coalition seeks an explicit declaration that the new rules only apply to new customers starting October 16, 2013.  One of the primary concerns raised by the Coalition is that, absent a clarification, there is a significant risk of frivolous class actions.

How long it takes for these petitions to wind their way through the FCC remains to be seen, but their resolution will go a long way toward shaping the future of both mobile marketing and TCPA litigation.