Last week, the Federal Communications Commission (FCC) issued a notice of proposed rulemaking (NPRM) seeking comment on a proposal to review and potentially revise a number of existing exemptions that the FCC has adopted with respect to certain Telephone Consumer Protection Act (TCPA) requirements.  The FCC’s review could end up narrowing or eliminating some of these longstanding exemptions, imposing consent requirements or other obligations that today are not required for certain kinds of calls and texts.

As background, the TCPA prohibits the transmission of certain kinds of calls or texts to residential and wireless telephone numbers without the recipient’s consent.  But the statute also authorizes the FCC to establish exemptions from this consent requirement.  In the past, the FCC has exercised this exemption authority to permit the transmission of the following kinds of calls without consent:

  • Prerecorded non-commercial calls to residential numbers
  • Prerecorded non-telemarketing commercial calls to residential numbers
  • Prerecorded tax-exempt nonprofit organization calls to residential numbers
  • Prerecorded HIPAA calls to residential numbers
  • Autodialed or prerecorded calls or texts from package delivery services to wireless numbers
  • Autodialed or prerecorded calls or texts from financial institutions to wireless numbers
  • Autodialed or prerecorded calls or texts from healthcare providers to wireless numbers
  • Autodialed or prerecorded calls or texts from inmate calling services to wireless numbers
  • Autodialed or prerecorded calls or texts from mobile carriers to their subscribers

As the above list indicates, the exemptions at risk of being revised generally fall into two categories: (1) exemptions for certain kinds of prerecorded calls to residential numbers, and (2) exemptions for autodialed or prerecorded calls or texts to wireless numbers by certain kinds of callers.

The FCC has initiated this review as a result of last year’s passage of the TRACED Act. Section 8 of the TRACED Act revised the FCC’s TCPA exemption authority, requiring that any such exemptions from the TCPA’s requirements include limits on (1) who may make such calls, (2) who may receive such calls, and (3) the number of calls that an entity may place to a specific recipient. The statute required the FCC to evaluate all existing exemptions for compliance with these requirements, and imposed on the FCC a deadline to complete this review by December 30, 2020.

In order to meet that statutory deadline, the NPRM seeks comment on whether the TCPA exemptions described above must be amended to meet the TRACED Act’s new requirements. Generally, the FCC tentatively concludes that the exemptions for autodialed or prerecorded calls or texts to wireless numbers (e.g., package delivery services and financial institutions) already meet the statutory requirements and do not need to be amended.  Conversely, the FCC proposes to revise the exemptions for calls to residential numbers, primarily in two key ways:  (1) by imposing numerical limits on the number calls that may be placed under these exemptions, and (2) requiring callers to honor opt-out requests.  The NPRM analyzes each exemption and seek comment on the FCC’s proposals with respect to each.

Comments will be due 15 days after the NPRM is published in the Federal Register, with reply comments due 25 days after publication.