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.