Earlier today, two entities — the Direct Marketing Association (“DMA”) and a Coalition of Mobile Engagement Providers (“Coalition”) — filed petitions at the FCC asking the agency to stay and forbear from enforcing, or clarify, certain aspects of the “prior express written consent” requirement that went into effect yesterday for prerecorded calls to residential numbers and autodialed or prerecorded calls or text messages to mobile numbers. The petitions are accessible here

The DMA petition asks the FCC to forbear from enforcing the definition of “prior express written consent,” which as a practical matter requires entities to incorporate certain FCC-prescribed language into their consent processes before “telemarketing” or “advertisement” calls can be transmitted via prerecorded messages or automated means to mobile numbers.  Part of the DMA’s rationale is that consents secured in advance of the October 16, 2013, implementation date for the new “prior express written consent” requirement should be sufficient, and that requiring entities to include the FCC’s prescribed language in the consent process likely would cause confusion, especially among consumers who previously consented to receive such calls and messages.  The DMA also asked the FCC to stay its “prior express written consent” definition until the FCC rules on the forbearance request.

The Coalition petition is more narrow, and asks the FCC to clarify that the new “prior express written consent” requirement (and thus the FCC-prescribed language for such consent) applies only to consents secured after October 16, 2013.  Part of the Coalition’s argument is that the text of the FCC order promulgating the new requirement focused on new customers and suggested that “prior express written consent” would be needed only where some form of written consent had not previously been obtained.

The FCC’s new rules have been subject to criticism from various quarters, principally because the “prior express written consent” process does not appear to have been formulated with commercial text message programs and existing industry best practices in mind.  We would not be surprised if more petitions seeking clarification, forbearance or stays are filed in the coming weeks.  In the meantime, the next steps for the DMA and Coalition petitions will be for the FCC to place them on public notice so interested parties can comment on them.  After that, they will be subject to consideration by the agency.

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Photo of Yaron Dori Yaron Dori

Yaron Dori has over 25 years of experience advising technology, telecommunications, media, life sciences, and other types of companies on their most pressing business challenges. He is a former chair of the firm’s technology, communications and media practices and currently serves on the…

Yaron Dori has over 25 years of experience advising technology, telecommunications, media, life sciences, and other types of companies on their most pressing business challenges. He is a former chair of the firm’s technology, communications and media practices and currently serves on the firm’s eight-person Management Committee.

Yaron’s practice advises clients on strategic planning, policy development, transactions, investigations and enforcement, and regulatory compliance.

Early in his career, Yaron advised telecommunications companies and investors on regulatory policy and frameworks that led to the development of broadband networks. When those networks became bidirectional and enabled companies to collect consumer data, he advised those companies on their data privacy and consumer protection obligations. Today, as new technologies such as Artificial Intelligence (AI) are being used to enhance the applications and services offered by such companies, he advises them on associated legal and regulatory obligations and risks. It is this varied background – which tracks the evolution of the technology industry – that enables Yaron to provide clients with a holistic, 360-degree view of technology policy, regulation, compliance, and enforcement.

Yaron represents clients before federal regulatory agencies—including the Federal Communications Commission (FCC), the Federal Trade Commission (FTC), and the Department of Commerce (DOC)—and the U.S. Congress in connection with a range of issues under the Communications Act, the Federal Trade Commission Act, and similar statutes. He also represents clients on state regulatory and enforcement matters, including those that pertain to telecommunications, data privacy, and consumer protection regulation. His deep experience in each of these areas enables him to advise clients on a wide range of technology regulations and key business issues in which these areas intersect.

With respect to technology and telecommunications matters, Yaron advises clients on a broad range of business, policy and consumer-facing issues, including:

  • Artificial Intelligence and the Internet of Things;
  • Broadband deployment and regulation;
  • IP-enabled applications, services and content;
  • Section 230 and digital safety considerations;
  • Equipment and device authorization procedures;
  • The Communications Assistance for Law Enforcement Act (CALEA);
  • Customer Proprietary Network Information (CPNI) requirements;
  • The Cable Privacy Act
  • Net Neutrality; and
  • Local competition, universal service, and intercarrier compensation.

Yaron also has extensive experience in structuring transactions and securing regulatory approvals at both the federal and state levels for mergers, asset acquisitions and similar transactions involving large and small FCC and state communication licensees.

With respect to privacy and consumer protection matters, Yaron advises clients on a range of business, strategic, policy and compliance issues, including those that pertain to:

  • The FTC Act and related agency guidance and regulations;
  • State privacy laws, such as the California Consumer Privacy Act (CCPA) and California Privacy Rights Act, the Colorado Privacy Act, the Connecticut Data Privacy Act, the Virginia Consumer Data Protection Act, and the Utah Consumer Privacy Act;
  • The Electronic Communications Privacy Act (ECPA);
  • Location-based services that use WiFi, beacons or similar technologies;
  • Digital advertising practices, including native advertising and endorsements and testimonials; and
  • The application of federal and state telemarketing, commercial fax, and other consumer protection laws, such as the Telephone Consumer Protection Act (TCPA), to voice, text, and video transmissions.

Yaron also has experience advising companies on congressional, FCC, FTC and state attorney general investigations into various consumer protection and communications matters, including those pertaining to social media influencers, digital disclosures, product discontinuance, and advertising claims.