1992 was an interesting year.  Ross Perot ran for president.  Crystal Pepsi was all the rage.  And the FCC handed down a ruling on the then-nascent TCPA interpreting what it means to provide “express consent” to receive calls—express consent is established whenever a consumer voluntarily furnishes their phone number to a business.

As readers of this blog know, that ruling—which has been consistently followed in numerous court and Commission rulings over the last 25 years—is about the only thing sane or stable in TCPA jurisprudence. As the statute has been expanded again and again the most powerful defense available to callers has also remained been the most basic—the customer gave me the phone number.  This is TCPA bedrock.

Yet, as first reported on this blog several weeks ago the FCC is mulling a petition that would do away with the TCPA’s consent foundation and replace it with an unworkable alternative.  A duo of serial TCPA Plaintiffs—Messrs. Cunningham and Moskowitz– have asked the FCC to abandon their long-standing interpretation of express consent in favor of a more rigid standard requiring affirmative written consent before a business may contact its customer.

Happily, a number of industry trade associations (including the CBA, AFSA, ETA, CUNA, FSR, NAFCU, the Consumer Mortgage Coalition and RILA) have hit back with well-reasoned opposition documents submitted in various filings to the FCC just a few days ago.  These groups—and many others—point out the logical flaws in the petitioners’ arguments, and also provide numerous policy and legal arguments why the FCC should reject the petition.  You can review the comments here of the Retail Industry Leaders Association, the Consumer Mortgage Coalition, and a group of trade associations.

Ultimately, this new-fangled interpretation of express consent advanced by the petitioners is about as unpalatable as the Crystal Pepsi that was on store shelves when the FCC made its first consent ruling in 1992.  Given the far-reaching implications of this gambit by the Plaintiffs’ bar, we will be keeping a close eye on these proceedings.  We are hopeful, particularly with the voices in the industry that are pushing back, that the new-look FCC will stick to its guns and reject the petition.