By Douglas Bonner, Eduardo Guzman and Laura Layton

On August 1, 2014, the FCC issued a Public Notice seeking comment on a petition filed by Santander Consumer USA, Inc. (Santander), an automotive finance company, which requests an expedited declaratory ruling from the FCC to clarify the meaning of “prior express consent” with respect to informational calls and text messages to cellular telephones, which include informational messages (e.g., messages regarding school closings or messages containing flight status information) and debt collection messages under the Telephone Consumer Protection Act (TCPA).

Whether prior express consent can be revoked, and the manner in which it can be revoked, are critical issues for entities that initiate non-telemarketing calls and text messages to cell phones, which include the informational communications that the FCC has sought to facilitate and protect under the TCPA framework. Comments in response to the Public Notice are due September 2, 2014, and reply comments are due September 15, 2014.

The FCC’s rules implementing the TCPA prohibit, among other things, non-telemarketing calls and text messages to cellular phones using an automatic telephone dialing system (ATDS) or an artificial or prerecorded message, unless the consumer has provided prior express consent. In its petition, Santander asks the FCC to “clarify and confirm” that “prior express consent to receive non-telemarketing calls and text messages cannot be revoked.”  Specifically, Santander argues that “prior express consent” to receive non-telemarketing calls and text messages sent using an ATDS or an artificial or prerecorded message is irrevocable because no right to revoke prior express consent is provided in the TCPA, the FCC’s rules, or prior regulations and rulings. According to Santander, the lack of such an explicit statement means consumers do not have the right to revoke consent.

If the FCC interprets the TCPA to include a right to revoke “prior express consent” to receive non-telemarketing calls and text messages, Santander requests in the alternative that the FCC confirm that the entity receiving the prior express consent may designate the exclusive method (i.e., one that is in writing) that the consumer must use to exercise the right to revoke consent. In its petition, Santander stresses the need for revocation of “prior express consent” in writing in order to create a definitive record upon which businesses may rely. Santander proposes that a caller receiving prior express consent may require consumers to use one of the following methods to effectively revoke prior express consent: (1) in writing at the mailing address designated by the  caller; (2) by email to an address designated by the caller; (3) by text message sent to the telephone number designated by the caller; (4) by facsimile to the telephone number designated by the caller; and/or (5) as prescribed by the Commission hereafter as needed to address emerging technology. The FCC seeks comment on whether a caller may require that consumers use one or more of the above-mentioned non-verbal methods in order to revoke prior express consent.

In the Public Notice, the FCC mentions Santander’s assertion that increased TCPA litigation volume and inconsistent court decisions on the issue of revocation of prior express consent demand clarification as to how prior express consent can be revoked.

For further information, please contact one of the authors listed above, or your regular contact in the Telecommunications & Mass Media Practice Group.

Source: Client Alert