by David O. Klein
On March 16, 2023, the Federal Communications Commission ("FCC") issued a Report and Order and Further Notice of Proposed Rulemaking ("FNPR") addressing a variety of issues under the Telephone Consumer Protection Act ("TCPA"). As our readership is aware, the TCPA is a federal statute designed to protect consumer privacy by restricting certain types of telemarketing communications. The FCC regularly issues rulemakings on issues that they deem pressing. Regarding the issue of TCPA consent, in the FNPR, the FCC proposed "ban[ning] the practice of obtaining a single consumer consent as grounds for delivering calls and text messages from multiple marketers on subjects beyond the scope of the original consent" – a practice the FCC characterizes as a "loophole." On June 6, 2023, a contingent of 28 attorneys general ("AGs") submitted Reply Comments ("Comments") in response to the FNPR. Almost the entirety of the 22-page AG submission addresses the propriety of obtaining consumer TCPA consent for telemarketing by multiple marketers on one webpage via hyperlinked marketing partner lists. In the past, attorneys general from various states have voiced their concerns regarding the industry's use of such hyperlinked marketing partner lists. Telemarketing companies engaged in this practice should take heed: the focus of the Comments clearly indicates that singular consumer consent remains one of the AGs' top priorities when it comes to TCPA compliance.