Shaffer Comments on TCPA's Recent Exceptions

DataGuidance's weekly issue of Privacy This Week, included an article entitled "FCC 'treading on thin ice' with TCPA Declaratory Ruling," drawing directly on a quote from Olshan Advertising attorney Scott Shaffer. On August 4, 2016, in response to recent petitions for relief, the FCC issued a declaratory ruling providing clarifications regarding circumstances in which companies are permitted to make robocalls and send automated text messages under the TCPA. Shaffer told DataGuidance, "In the past couple of weeks, the FCC has issued TCPA exemptions not only to schools and utilities, but also to companies seeking to 'collect a debt owed to or guaranteed by the United States.' Although the school and utility exceptions by themselves make common sense, the FCC is treading on thin ice by allowing content-based preferences on what types of calls can be made via robocalls." Among the petitions for relief were messages sent by schools for “emergency purposes.” The FCC granted the request only in part, declaring that only those messages concerning “health and safety” would be exempt. Shaffer pointed out that, "By favouring certain kinds of speech over others, the FCC is opening the door to First Amendment-based challenges on free speech grounds. Earlier in the month, a lawsuit of this nature was filed against the FCC in the Eastern District of North Carolina [American Association of Political Consultants v. Loretta Lynch, 16-cv-252 (E.D.N.C)]. Is a robocall about a parent-teacher conference or past due loan payment more important than a robocall touting a political candidate? Eventually a court will have to decide."