On December 30, 2020, the Federal Communications Commission (FCC) released its Report and Order, implementing provisions of the Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence Act (the “TRACED Act”).
By way of background, the Telephone Consumer Protection Act of 1991 (TCPA) includes a provision that bans “any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party,” unless a statutory or regulatory exception applies.
Beginning in 1992, the FCC began carving out regulatory exemptions to the TCPA’s ban against such calls. Relevant here, the FCC created exemptions for calls made to a residential telephone line that are: (i) not made for a commercial purpose; (ii) made for a commercial purpose but that do not contain an unsolicited advertisement; (iii) made by tax-exempt nonprofit organizations; or (iv) subject to the Health Insurance Portability and Accountability Act of 1996 (HIPAA).
Section 8 of the TRACED Act directed the FCC to ensure any exemption granted under sections 227(b)(2)(B) or (C) of the TCPA specify “(i) the classes of parties that may make such calls; (ii) the classes of parties that may be called; and (iii) the number of such calls that a calling party may make to a particular called party.” As a result, on October 1, 2020, the FCC issued a Notice of Proposed Rulemaking to implement Section 8.
After receiving public comments, the FCC released a Report and Order on December 30, 2020. Among other things, the Report and Order codifies all existing exemptions under section 227(b)(2)(C) of the TCPA, establishes an opt-out requirement, and imposes frequency limitations as set forth below. In most cases, the FCC has limited the number of artificial or prerecorded voice calls to residential telephone lines to three such calls within a consecutive 30-day period unless the caller has obtained prior express consent:
|CALLERS||CALLED PARTIES||NUMBER OF CALLS||OPT-OUT REQUIRED?|
|Non-commercial calls to a residence||“ . . . callers that are not calling for a commercial purpose”||“ . . . calls made to residential telephone lines.”||“ . . . three artificial or prerecorded voice calls within any consecutive 30-day period.”||Yes|
|Calls made for a commercial purpose but that do not include or introduce an advertisement or constitute telemarketing||“ . . . those making calls for a commercial purpose where the call does not introduce an advertisement or constitute telemarketing”||“ . . . calls made to residential telephone lines.”||“ . . . three artificial or prerecorded voice calls within any consecutive 30-day period.”||Yes|
|Tax-exempt nonprofit organization calls to a residence||Tax-exempt nonprofit organizations||“ . . . calls made to residential telephone lines.”||“ . . . three artificial or prerecorded voice calls within any consecutive 30-day period.”||Yes|
|HIPAA calls to a residence||Calls “made by, on behalf of, a ‘covered entity’ or its ‘business associate’ as those terms are defined in the HIPAA Privacy Rule, 45 CFR 160.103”||“ . . . calls made to residential telephone lines.”||“ . . . one artificial or prerecorded voice call per day up to a maximum of three artificial or prerecorded voice calls per week.”||
The opt-out mechanism allows consumers to stop unwanted calls made pursuant to the above exceptions. 47 C.F.R. § 64.1200(b)(3) governs the opt-out requirement and requires the caller to provide “an automated, interactive voice- and/or key press-activated opt-out mechanism for the called person to make a do-not-call request” along with instructions explaining how to use the mechanism. The opt-out mechanism must be provided within two seconds of providing the identification information required under § 64.1200(b)(1). Further, the opt-out mechanism “must automatically record the called person’s number to the seller’s do-not-call list and immediately terminate the call” once the called party uses the opt-out mechanism. Additional requirements apply if the artificial or prerecorded voice telephone message is left on an answering machine or voice mail service.
Although the Report and Order establishes a six-month implementation period, the FCC noted it “fully expect[s] that the implementation period will be longer than six months because of the additional time required for the [Office of Management and Budget] to approve the information collections associated with the new rules.”