The NPRM deals with several important questions. First, it addresses the scope of the proposed rules. With respect to “covered calls,” the FCC notes that the Act refers only to calls “solely to collect a debt.” See id. at ¶ 4. The NPRM proposes that debt servicing calls should, in fact, be covered by the exception to the extent that they do not also engage in any marketing.
Second, the NPRM proposes to place limitations on the entities that may claim the benefit of the Budget Act exception. See id. at ¶ 15. In particular, the FCC suggests that only callers who are creditors or agents acting on behalf of creditors should be covered by the exception and then only as to covered calls. The NPRM further seeks comment on the suggestion that agents of creditors should be able to claim the exception only to the extent that they are acting within their actual authority and notes the Supreme Court’s recent decision in Campbell-Ewald v. Gomez. Campbell-Ewald v. Gomez, No. 14-857 (Jan. 20, 2016), seeking comment with respect to the effect (if any) that the Gomez ruling as it relates to agents acting outside their authority should have on the scope of the TCPA exception in the finalized FCC rules. See NPRM at ¶ 16.
Third, the NPRM proposes to enforce strict limits on the number and duration of excepted calls. Specifically, the NPRM proposes to limit excepted calls to just three per month per debt transaction—regardless of whether such calls are answered. See id. at ¶ 18. The FCC sought comment on whether it should look to other standards, precedents, and statutes in setting the limit on the number of calls. It asked, in particular, whether any limitations set under the Fair Debt Collection Practices Act should inform the FCC’s call limit. See id. at ¶ 19. The NPRM also tentatively concludes that consumers should be informed of their ability to opt-out of receiving the debt-related calls. See id. at ¶ 20-21.
In short, the NPRM seems to indicate the FCC’s intent to take a narrow view of the Budget Act exception to permit robocalls without prior consent. Comments are due on the NPRM’s proposed rules on June 6, and reply comments are due on June 21. Drinker Biddle will continue to monitor the proceeding and provide updates as further developments warrant.