FCC and Supporters Defend December Robocall Order

Consumer and public interest advocates opposed a push in the 11th U.S. Circuit Appeals Court by a group representing lead generators and their clients aimed at overturning the FCC’s Dec. 18 robocall and robotext order. The order was approved 4-1, with Commissioner Nathan Simington dissenting. It clamps down on the lead generator (LG) loophole (see 231208004) and will become effective in January unless the court intervenes.

The Insurance Marketing Coalition (IMC) argued in May that the order was “misguided” and will “make it harder for people to receive calls about things like insurance rates that they want, and have expressly asked, to receive.” That isn’t accurate, the public interest groups countered (docket 24-10277).

“The amended rule will substantially reduce the unwanted telemarketing robocalls that bombard individuals and small businesses,” the Electronic Privacy Information Center, the National Consumer Law Center, Public Knowledge and the Consumer Federation of America said in a filing Monday. LGs “will still be able to connect consumers with desired offers,” they said. The order will benefit consumers and small businesses because it limits unwanted calls, they added.

LGs supply online consent forms to telemarketers. These forms are "the purportedly legal basis of billions of unwanted telemarketing calls,” the groups said. Misrepresentations on LG websites “are not uncommon” and leads “can be sold for as much as $600 each,” they noted: Leads can be resold “perhaps hundreds of times over a limitless period of time.”

The order “cannot plausibly be a significant burden on businesses as it mirrors regulations [the FTC] enacted” in its telemarketing sales rule “over a decade ago,” the filing said. Instead, the order “ensures that a phone subscriber’s consent to receive telemarketing robocalls from one seller cannot be sold and used as the basis of dozens of additional robocalls.”

The FCC and DOJ defended the order in a filing last week.

Since 2012, the FCC has required that robocallers obtain written permission for most calls, but LGs are negating that requirement, the government said. A consumer “might click a single box and, without realizing it, be deemed to have ‘consented’ to receiving robocalls from hundreds or thousands of the lead generator’s ‘marketing partners,’” the government said: “In many cases, those callers are businesses with no logical or topical connection to the website on which the consumer supposedly furnished consent.”

The IMC represents LGs and their clients in the insurance industry, the government said. “In defense of that business model, IMC insists that consumers ‘want, and have expressly asked, to receive’ robocalls initiated this way,” the filing said. “The record shows otherwise, and the FCC reasonably disagreed.”

Simington slammed the order when it was adopted, saying the record was too thin. “We today clumsily rush to save the American consumer from herself by sticking our finger in yet another new pie, vigorously stirring, calling the resulting mess a cobbler [and] insisting that it's healthier,” he said at the time (see 2312130019).

The 11th Circuit, which has jurisdiction over federal cases originating in the states of Alabama, Florida and Georgia, is widely viewed as one of the most conservative circuits.