With the fast-paced world of TCPA and all the late-breaking updates don’t forget that the FCC has an FNPRM (Further Notice of Proposed Rulemaking) open until April 4^th seeking comment as to whether the TCPA applies to robocalls/robotext from wireless providers to their subscribers and whether to require the use of an opt-out option for all calls that make use of a prerecorded or artificial voice.

Specifically, the FCC is seeking comment on:

• Whether wireless providers are wholly excluded from the application of the TCPA’s requirement to obtain consent before robocalling or robotexting their own subscribers because there is no charge imposed on the subscriber.
• Seeks comment on the contention that either the 1992 TCPA Order or the TCPA itself wholly excludes wireless providers from the TCPA’s consent requirement when communicating with their own subscribers solely because their calls and texts are free to their subscribers.
• Commission seeks comment on whether it should revisit this issue to require prior express written consent to be obtained for any such robocall or robotext that contains telemarketing or advertising.
• Commission seeks comment on whether the right to revoke consent extends to wireless subscribers when they receive unwanted robocalls and robotexts from their wireless provider, just as it does to any robocalls or texts sent pursuant to the TCPA.
• Commission seeks comment on ways to reduce any new burdens such a requirement might entail, including for smaller wireless providers. (Honoring opt-out requests)
• Commission seeks comment on this proposal and any other issues commenters may wish to raise in this context, including any alternative proposals set forth in the TCPA Consent NPRM that would allow it to balance consumer privacy rights without unduly interfering with the ability of wireless providers to communicate critical information to their subscribers.
• Commission seeks comment on whether wireless providers have effectively obtained consent to make robocalls and send robotexts to their own subscribers by virtue of their unique relationship with their subscribers.
• Commission seeks comment on whether the nature of this unique relationship and service continues to render it unnecessary for wireless providers to obtain any additional consent from their subscribers.
• Commission seeks comment on how it should proceed to avoid inadvertently disrupting the flow of information that wireless subscribers have come to expect or burdening wireless providers with the necessity of obtaining such consent from their existing subscribers.
• Commission seeks comment on the National Consumer Law Center’s (NCLC) request that the Commission amend section 64.1200(b)(3) of its rules to require an automated opt-out mechanism on every call that contains an artificial or prerecorded voice. (to include pre-recorded non-marketing calls/text)

That is a lot to unpack and if you would like to read the FNPRM in its entirety you can do so HERE. Comments are due by April 4th, 2024, with reply comments due by April 19th, 2024. We will keep a close eye on the changes as they unfold.