FCC asks for public comment on dual-purpose telemarketing calls

"Time Cop"

Between alleged plaintiff shakedowns of text-messaging companies and grueling debates over autodialer equipment "capacity," one has to wonder how the authors of the original Telephone Consumer Protection Act (TCPA) feel about their legacy.

The TCPA has provided fertile ground for lawsuits of considerable variety and number. And that, in turn, provokes strong opinions among consumers, businesses and regulators alike.

Do the protean creators of the TCPA cast a despairing eye over its contentious history? Are they currently planning to build a time machine to travel into the future to ensure the TCPA is clearly and usefully interpreted – only to discover that their attempts to re-engineer it have made everything worse?

Error of Emissions?

Science fiction aside, here's the latest: The Federal Communications Commission (FCC) is throwing open the concept of "prior express written consent" for public comment. The focus of the request is a recent petition for expedited declaratory ruling by SGS North America, a company that is deeply concerned about how the concept of "dual purpose" is invoked in TCPA cases. Exactly what constitutes dual purpose is what's at issue here, but generally it refers to a communication that is both informational and commercial.

SGS's dilemma seems genuine. The company – "the nation's leading provider of vehicle inspection, testing, verification and certification services," – claims that it has been sued under the TCPA for sending texts to vehicle lessees, reminding them to schedule an inspection.

The Takeaway

Although SGS objects that it is not selling goods or services through the texts, and receives compensation only from the vehicle lessors, the class action in question claims that the texts are a dual-purpose communication that triggers prior express written consent requirements under the TCPA.

SGS maintains that this application of the TCPA runs counter to the legislation's original intent and asks the FCC to clarify that prior express written consent is required only "when the call includes an 'advertisement' or constitutes 'telemarketing' within the four corners of the communication itself." The petition provides a handy – albeit defendant-centric – history of the evolution of "dual-purpose" that illuminates how the concept found its way into the hands of plaintiffs.

While it seems likely that the FCC, under its (relatively) new chairman, will pinch the definition and give the defendants' bar some oft-demanded relief, the future is always impossible to divine.

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