FCC Grants Retroactive Waiver of Prior-Express-Written-Consent Rules to Seven Corporate Petitioners

On October 14, 2016, the FCC granted limited retroactive waiver of the Commission’s prior-express-written-consent rules to seven corporate parties after finding that each party needed additional time to obtain updated consumer written consent documents in compliance with the Commission’s 2012 written-consent rule changes, 47 C.F.R. § 64.1200, which modified the way in which parties could receive consent from consumers.  The granted waiver applies to automated calls made by the petitioners between October 16, 2013 and October 7, 2015, for which the petitioners had some form of previously obtained written consent but not the type of written consent that was required by the 2012 rule changes.

The FCC initially applied this type of retroactive waiver in its 2015 TCPA Declaratory Ruling.  There, the Commission granted the request of two parties to be given a retroactive waiver from the 2012 written-consent rule changes on the basis that the 2012 rules were unclear and could have reasonably been interpreted by the parties to mean that written consent obtained before the 2012 rules’ effective date would remain valid even if it did not satisfy the 2012 rule.  The waiver applied to all automated calls the parties made between the 2012 rules’ effective date (October 16, 2013) and 89 days after the 2015 TCPA Declaratory Ruling’s release date (October 7, 2015), and such waiver was premised on the FCC’s belief that it would take this long for the petitioning parties to update their written consent documents to conform with current TCPA requirements.

In this petition, several new parties asked for individual grants applying the same retroactive waiver as that issued in the FCC’s 2015 TCPA Declaratory Ruling, contending that they were similarly situated to the parties who were previously granted relief and that they too did not understand the extent of the 2012 rule changes.  Four of the seven petitions were not opposed by commenters, and while commenters asserted that the other three petitioners were only requesting retroactive waivers because they had been sued for violating the TCPA during the above-mentioned time frame, the FCC granted each retroactive waiver request because there was no evidence to refute each party’s asserted confusion with the 2012 rule.

The FCC did, however, stress that each retroactive waiver was limited in scope—only applying to automated calls made within the above-mentioned time frame for which the parties had some form of previously obtained written consent.  The Commission also stressed that the waivers would only be given out on a case-by-case basis, and that if other corporations wished to also receive limited retroactive waivers they would have to do so via their own individual petitions.

* The petitioners who were granted waivers include F-19 Holdings, LLC; Kale Realty, LLC; Mammoth Mountain Ski Area, LLC; the National Association of Broadcasters and their members; the National Cable & Telecommunications Association and their members; Papa Murphy’s Holdings, Inc. and Papa Murphy’s International, LLC; and Rita’s Water Ice Franchise Company, LLC.

* The full FCC order is available here:

https://apps.fcc.gov/edocs_public/attachmatch/DA-16-1179A1.pdf