As TCPAWorld previously reported, the Federal Communications Commission (FCC) may have unintentionally expanded prior express written consent requirements when it recently codified certain Telephone Consumer Protection Act (TCPA) exemptions for informational prerecorded or artificial voice calls to residential lines and imposed number limits and opt-out requirements.

A group of trade associations led by the American Bankers Association (Group) has now formally asked the FCC to issue an erratum correcting this error. On January 27, 2021, the group filed an ex parte presentation notice reporting on a telephonic meeting with the FCC’s Consumer and Governmental Affairs Bureau (Bureau) at which they did so.


The Group pointed out that in amending the language in one section of the FCC’s rules the agency’s Order did so “in a manner that appears inadvertently to impose a prior express written consent requirement on informational prerecorded or artificial voice calls to a residential number made outside of the” codified exemptions. Specifically, the Group explained that “imposing a written consent requirement was clearly in error as it conflicts directly with the text of the Order and other codified regulations in Section 64.1200.” Moreover, the Group noted that “the Order [text] applies a prior express consent standard for calls that exceed the informational call limits and states that such consent could be obtained during exempted telephone calls.” Specifically, the Order explained that “callers may make more than three non-commercial calls using an artificial or prerecorded voice message within any consecutive 30-day period by obtaining the prior express consent from the called party, including by using an exempted call to obtain consent.” Finally, the application of prior express written consent to such informational call exemptions would have required a revision to the definition of that term, which as the Group noted the FCC did not change.

The Group asked the FCC to issue an erratum to maintain “prior express consent” as the level of consent required for an informational prerecorded or artificial voice call to a residential number that is placed outside of” the codified exemptions.

As of this date, the FCC has not responded. TCPAWorld will continue to monitor.

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