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.

Print:
EmailTweetLikeLinkedIn
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.