The FCC is seeking comment on a petition for an expedited clarification and declaratory ruling concerning the Telephone Consumer Protection Act (TCPA) rules. Section 64.1200(a)(1)(iii) of the TCPA rules prohibits the initiation of any telephone call (other than a call made for emergency purposes or made with the prior express consent of the called party) using an automatic telephone dialing system or an artificial voice, to any telephone number assigned to a cellular telephone service.

    In January 2008, the FCC issued a declaratory ruling indicating that autodialed and prerecorded message calls to wireless numbers that are provided by the called party to a creditor in connection with an existing debt are permissible as calls made with the “prior express consent” of the called party. See our Alert of January 8, 2008.

    In Leckler v. CashCall, Inc., the United States District Court for the Northern District of California refused to follow the FCC’s interpretation of “prior express consent” and found a lender liable for calling cellular telephones using an autodialer and prerecorded messages. See our Alert of May 28, 2008. The district court, however, later vacated its decision on the grounds that under the Hobbs Act, the federal courts of appeal have exclusive jurisdiction over all final FCC orders, and therefore the district court had no jurisdiction to review the FCC’s declaratory ruling. See our Alert of November 25, 2008.

    The petitioner is asking the FCC to clarify whether a creditor may place autodialed or prerecorded message calls to a telephone number associated with wireless service that was provided to the creditor initially as a telephone number associated with landline service. The petitioner contends that (i) the FCC’s declaratory ruling permits debt collection calls to a wireless telephone number only when the consumer, in that instance, provides that wireless telephone number to the creditor and (ii) when the creditor is initially provided a landline telephone number, which subsequently is ported to a cellular telephone, neither the “prior express consent” exemption, nor any other exemption, applies. The petitioner also contends that the consumer must have provided the creditor a telephone number assigned to a wireless service in order for the calls to the wireless telephone number to be permissible.

    Interested parties may file comments on or before the 15th day after publication of the FCC’s Public Notice in the Federal Register, which has not yet occurred. Reply comments may be filed on or before the 25th day after publication of the Public Notice in the Federal Register.

    Please feel free to call us if you would like copies of any related documents or have any questions.

    • Margaret Stolar and Chuck Gall

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