Insurance Coalition Seeks Stay of FCC’s Robotext Order, Pending Appeal

Since 2012, the FCC has required that express consent for most categories of telemarketing robocalls be made in writing under the TCPA, said the commission’s April 15 opposition (see 2404160002). But in recent years, that rule has not protected consumers from "a flood of unwanted texts and calls" when they visit comparison shopping websites that lead generators run, it said.

The coalition “recognizes that Americans detest calls they did not ask for,” said the reply. It also recognizes that the FCC has authority under the TCPA to adopt regulations addressing unwanted automated calls, “subject to statutory and constitutional limitations,” it said.

But with its Dec. 18 robotext order, the FCC “failed to act within those limits,” said the reply. The order “impermissibly” defines “prior express consent” to have different meanings for different calls, “imposing only on marketing calls" consent requirements "that defy the statute’s plain meaning,” it said.

The order also violates the First Amendment by adopting content-based restrictions on marketing calls, “without showing that doing so is an effective or tailored means of preventing unwanted calls,” said the reply. The order instead “will make it harder for Americans to receive calls they want and have expressly requested,” it said.

The FCC argues that its additional consent requirements are good policy, said the reply. But it invokes an “alarming hypothetical” in which a consumer unwittingly consents to a list of hundreds or thousands of marketing partners on a website and then receives hundreds or thousands of automated calls, it said. That’s “pure fiction,” it added.

The coalition’s members don’t sell individual leads to hundreds, let alone thousands of callers, and there’s “no evidence that any American has ever received hundreds or thousands of calls in this way,” said the reply. Typically, only a few companies, often one or two, will call a consumer in response to a single request to be contacted, “even when a website provides a much longer list of potential callers,” it said.

Though unwanted automated calls are a real problem, “the record shows that the problem arises primarily from overseas entities that call without ever attempting to obtain consent,” said the reply. Those callers don’t buy leads, and the order’s consent restrictions do nothing to prevent their abusive behavior, it said.

The FCC’s opposition “misses the point,” said the reply. Regardless of whether the order is good policy, it’s “unlawful if it contravenes the TCPA or the First Amendment,” it said. The FCC may not rewrite clear statutory terms to suit its own sense of how the statute should operate, or elevate its policy preferences above the Constitution, it said.

Yet that’s what the order “seeks to do here” when it relies on “vague notions” of context and consumer expectations to justify stretching the term “prior express consent” beyond its ordinary meaning, said the reply. “Precedent and common sense” confirm that individuals can expressly consent to marketing calls without meeting the order’s “paternalistic requirements,” it said.

The coalition’s stay request is “narrow,” said the reply. It challenges only the portion of the order that imposes “atextual consent requirements” and only seeks relief for coalition members, it said.

Granting a stay would leave in place all the FCC’s “other tools to combat unwanted automated calls,” said the reply. Coalition members “are law-abiding U.S. companies,” many of them small businesses, that run or partner with comparison-shopping websites that consumers want, and ask, to hear from for things like insurance quotes, it said. The commission hasn’t shown that such legitimate businesses “contribute to the scourge of unwanted calls,” it said.