On December 30, 2020, the Federal Communications Commission (“FCC”) released a Report and Order (“Order”) that imposed certain new restrictions on nonmarketing prerecorded calls to residential lines.  The action was in response to Congress’s mandate in the TRACED Act that the FCC reevaluate certain exemptions the agency previously granted regarding the consent requirements for prerecorded calls under the Telephone Consumer Protection Act (“TCPA”).

The FCC recognized that its rule changes may present implementation challenges for some, so it delayed the effective date of its new rules for six months.  The six-month period will commence only after the Office of Management and Budget has approved the rule changes; so as a practical matter these changes are not likely to take effect for several months.

Previously, prerecorded calls to residential lines that were either noncommercial in nature or did not contain marketing were completely exempt from TCPA consent requirements.  The Order narrows these exemptions by requiring consent to transmit more than three such prerecorded calls per 30-day period to a residential line.  The Order also requires callers to permit call recipients to opt out of such calls through an automated opt out mechanism.

The Order does not define what “consent” means in this context.  Because these are nonmarketing calls by definition, it stands to reason that consent means “prior express consent,” as that term has been construed by the FCC.  A group of trade associations recently asked the FCC to confirm this point.  The Order also makes certain other conforming changes to its rules governing prerecorded calls to residential numbers.

The Order does not change existing exemptions for calls to wireless numbers, finding that these exemptions already satisfy the TRACED Act’s requirements.  Nevertheless, the order codifies these exemptions, which previously were set forth only in FCC declaratory rulings.