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.

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Photo of Yaron Dori Yaron Dori

Yaron Dori has over 20 years of experience in telecommunications, privacy, and consumer protection law, advising telecom, technology, life sciences, media and other types of companies on their most pressing business challenges. He is a former chair of the Communications and Media practice…

Yaron Dori has over 20 years of experience in telecommunications, privacy, and consumer protection law, advising telecom, technology, life sciences, media and other types of companies on their most pressing business challenges. He is a former chair of the Communications and Media practice group and currently serves as a member of the firm’s eight-person Management Committee.

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

He represents clients before federal regulatory agencies—including the Federal Communications Commission (FCC) and the Federal Trade Commission (FTC)—and the U.S. Congress in connection with a range of policy 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 and data privacy regulation. His unique experience in telecommunications, privacy, and consumer protection enables him to advise clients on key business issues in which these areas intersect.

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

  • Broadband deployment and regulation;
  • IP-enabled applications, services and content;
  • 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 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 California Consumer Privacy Act (CCPA);
  • The Electronic Communications Privacy Act (ECPA);
  • Location-based services that use WiFi, beacons or similar technologies;
  • Online Behavioral Advertising;
  • Online 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 FCC (Enforcement Bureau), 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.

Photo of Rafael Reyneri Rafael Reyneri

Rafael Reyneri is an associate in the firm’s Washington, DC, office. He is a member of the Communications and Media and Data Privacy and Cybersecurity practice groups. Before joining the firm, he clerked for Judge Andre Davis on the U.S. Court of Appeals…

Rafael Reyneri is an associate in the firm’s Washington, DC, office. He is a member of the Communications and Media and Data Privacy and Cybersecurity practice groups. Before joining the firm, he clerked for Judge Andre Davis on the U.S. Court of Appeals for the Fourth Circuit and Judge Margo Brodie on the U.S. District Court for the Eastern District of New York. Prior to law school, he was a Legislative Assistant for Congressman Jared Polis.