Federal Communications Commission	DA 19-562


Before the
Federal Communications Commission
Washington, D.C. 20554


In the Matter of


Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991

Petitions for Waiver and/or Retroactive Waiver of 47 CFR Section 64.1200(a)(2) Regarding the Commission’s Prior Express Written Consent Requirement


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CG Docket No. 02-278







ORDER

Adopted:  June 13, 2019		Released:  June 13, 2019


By the Chief, Consumer and Governmental Affairs Bureau:


I. INTRODUCTION 
1. In this order, we grant limited waivers of the Commission’s prior-express-written-consent rules to two petitioners, bebe stores, inc. and ViSalus, Inc., in light of confusion about the rules and consistent with the Commission’s prior grant of similar waivers. See Petition for Expedited Declaratory Ruling Granting a Limited, Retroactive Waiver of 47 CFR § 64.1200(a)(2) of the Federal Communications Commission’s Rules, CG Docket No. 02-278, filed by bebe stores, inc. (filed Nov. 18, 2016) (bebe Petition); Petition for Retroactive Waiver and Request for Expedited Ruling, CG Docket No. 02-278, filed by ViSalus, Inc. (filed Sept. 14, 2017) (ViSalus Petition); see also Letter from Glenn S. Richards and Amy L. Pierce, counsel for bebe stores, inc., to Marlene H. Dortch, Secretary, FCC, CG Docket no. 02-278, at 2-8 (filed Mar. 9, 2017) (bebe Ex Parte).
  Specifically, we find good cause exists to find that bebe and ViSalus needed additional time to obtain updated written consent in compliance with the Commission’s 2012 rule changes, which were adopted under the Telephone Consumer Protection Act (TCPA) to ensure that telemarketers have proof of consent from consumers to make robocalls. Telephone Consumer Protection Act of 1991, Pub. L. No. 102-243, 105 Stat. 2394 (1991), codified at 47 U.S.C. § 227.  The Commission’s implementing rules are codified at 47 CFR § 64.1200.
  As discussed more fully below, these waivers only apply to calls for which the petitioner had obtained some form of written consent.  We emphasize that the petitioners should already be in full compliance with the Commission’s requirements for any calls made 90 days or more after the Commission’s 2015 clarification of the written-consent rule because they had the benefit of that clarification in making such calls.  
II. BACKGROUND
A. The Telephone Consumer Protection Act and Commission’s Rules
2. In 1991, Congress enacted the TCPA to address a growing number of telephone marketing calls and other calling practices that can be an invasion of consumer privacy.  Before the Commission’s 2012 revisions, the Commission’s implementing rules, in relevant part, prohibited:  (1) making telemarketing calls using an artificial or prerecorded voice to residential telephones without prior express consent; and (2) making any non-emergency call using an automatic telephone dialing system (“autodialer”) or an artificial or prerecorded voice to a wireless telephone number without prior express consent. See 47 CFR §§ 64.1200(a)(1)-(2) (2011).  This restriction also applied to such calls directed to emergency numbers and other specified locations.  
  The consent could be provided in either oral or written form. See Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Docket No. 02-278, Report and Order, 27 FCC Rcd 1830, 1833, para. 7 (2012) (2012 TCPA Order).

3. In 2012, the Commission made its rules consistent with the parallel Federal Trade Commission (FTC) rules by requiring, among other things, prior express written consent for all autodialed or prerecorded telemarketing calls to wireless numbers and for all prerecorded telemarketing calls to residential lines. Id. at 1838, para. 20.
  Additionally, the Commission required that any request for a consumer’s written consent to receive telemarketing robocalls must include the telephone number to which the consumer authorizes such telemarketing messages to be delivered, and clear and conspicuous disclosures informing the consumer that:  (1) the consumer authorizes the seller to deliver telemarketing calls to that number using an automatic telephone dialing system or an artificial or prerecorded voice; and (2) the consumer is not required, directly or indirectly, to provide written consent as a condition of purchasing any property, goods, or services. 47 CFR § 64.1200(f)(8); see also 2012 TCPA Order, 27 FCC Rcd at 1844, para. 33.  
  The 2012 rule changes became effective on October 16, 2013. See 77 Fed. Reg. 63240 (Oct. 16, 2012).

4. Immediately after the effective date of the 2012 rule changes, two parties, the Direct Marketing Association (DMA) and the Coalition of Mobile Engagement Providers (Coalition), filed petitions asking the Commission, respectively, to forbear from enforcing the new written consent requirements when noncompliant written consent had already been obtained and to clarify that the revised rules did not nullify noncompliant written consent (i.e., consent that did not meet the new 2012 requirements) obtained prior to the effective date of the revised rules. See Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Docket No. 02-278, Declaratory Ruling and Order, 30 FCC Rcd 7961, 8012-13, para. 98 (2015) (2015 TCPA Declaratory Ruling).
  
5. In its 2015 TCPA Declaratory Ruling, the Commission clarified the application of the 2012 rule change, saying that the new requirements apply “per call and … telemarketers should not rely on a consumer’s written consent obtained before the 2012 rules took effect.” 2015 TCPA Declaratory Ruling, 30 FCC Rcd at 8014, para. 100.
  Addressing the DMA and Coalition petitions in the 2015 TCPA Declaratory Ruling, the Commission recognized that special circumstances warranted a deviation from strict enforcement of the revised prior-express-written-consent rules.  It therefore provided the two petitioners, and their members, with temporary relief by granting retroactive waivers to those parties that allowed them to rely on previously obtained written consents for a limited period of time.  During that time, the petitioners did not have to obtain new consent after making the required disclosures from these same consumers. Id. at 8014, para. 100; 47 CFR §§ 64.1200(a)(2), (f)(8); see also 47 CFR § 64.1200(a)(1)(iii); 2012 TCPA Order, 27 FCC Rcd at 1843-44, paras. 32-33; 2015 TCPA Declaratory Ruling, 30 FCC Rcd at 8012-15, paras. 98-102.
  In reaching its decision, the Commission concluded that there was evidence in the record that petitioners could have been confused as to whether written consent obtained previously would remain valid after the new rules became effective.  The Commission therefore found it reasonable to recognize a limited period of time within which the parties could be expected to obtain the prior express written consent as required by the 2012 rules, including the necessary disclosures. 30 FCC Rcd at 8014, para. 101.
  Consequently, the Commission granted the petitioners and their members a retroactive waiver from the original effective date of the rules, October 16, 2013, to release date of the 2015 TCPA Declaratory Ruling (which was July 10, 2015), and then a waiver from the release date of the 2015 TCPA Declaratory Ruling through a period of 89 days (or until October 7, 2015), during which the affected parties were allowed to rely on the previously obtained prior express written consents already provided by their consumers before October 16, 2013. Id. at 8014-15, para. 102.
  After October 7, 2015, the petitioners and their members were required to be in full compliance with the Commission’s requirements for each subject call. Id.

6. Subsequently, the Consumer and Governmental Affairs Bureau (Bureau), acting on delegated authority, granted waivers to seven additional petitioners that demonstrated they were similarly situated to the DMA and Coalition. Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Petitions for Waiver and/or Retroactive Waiver of 47 CFR Section 64.1200(a)(2) Regarding the Commission's Prior Express Written Consent Requirement, CG Docket No. 02-278, Order, 31 FCC Rcd 11643, 11647-48, paras. 10, 12 (CGB 2016) (2016 Waiver Order).
  The Bureau found that there was good cause to waive the Commission’s rules as to each of the seven petitioners and find that they needed additional time to obtain updated written consent in compliance with the Commission's 2012 rule changes. Id. at 11648, paras. 11-12.
  In granting the limited retroactive waivers, the Bureau found that special circumstances warranted granting a waiver to each petitioner.  As the Commission had previously stated in the 2015 TCPA Declaratory Ruling, the Bureau concluded that there was confusion about the 2012 prior-express-written-consent rule changes because they could reasonably have been interpreted to mean that written consent obtained prior to the 2012 TCPA Order was still valid. Id. at 11648-49, para. 13.
  Each of the seven petitioners asserted that there was industry-wide confusion after the 2012 TCPA Order went into effect, that they would need more time to obtain new consents under the 2012 TCPA Order, and that they would benefit from a retroactive waiver. Id. at 11648, para. 12 & n. 45. 
  Each of the petitioners demonstrated that they incorrectly but reasonably interpreted the Commission’s 2012 TCPA Order by citing that order’s language and the lack of evidence to refute their claimed confusion. Id. at 11648-49, para. 13
  Finally, just as the Commission did not require proof of actual confusion for the DMA or the Coalition, the Bureau did not require proof of actual confusion from the seven petitioners granted waivers in October, 2016. 2015 TCPA Declaratory Ruling, 30 FCC Rcd at 8014-15, paras. 100-02; 2016 Waiver Order, 31 FCC Rcd at 11650, para. 16.

B. The bebe and ViSalus Petitions
7. Bebe and ViSalus filed petitions seeking similar waivers after the Bureau’s 2016 Waiver Order.  In general, these petitioners contend they are similarly situated to the parties who received waivers in the 2015 TCPA Declaratory Ruling and the 2016 Waiver Order. See bebe Petition at 1, 8, 10; ViSalus Petition at 1, 3-4.
  Specifically, they assert that they faced similar confusion and needed additional time to obtain new consents under the 2012 rules without running the risk of being subject to litigation. Bebe Petition at 5, 10-11; ViSalus Petition at 2-4, 7-8.
  They also contend they would benefit from the same additional time granted for compliance with the 2012 prior-express-written-consent requirements. Bebe Petition at 11; ViSalus Petition at 8.
 
8. The Commission sought comment on the petitions. See Consumer and Governmental Affairs Bureau Seeks Comment on a Petition for Retroactive Waiver Filed by bebe Stores, Inc., CG Docket No. 02-278, Public Notice, 31 FCC Rcd 12767 (CGB 2016); Consumer and Governmental Affairs Bureau Seeks Comment on Petition for Retroactive Waiver Filed by ViSalus, Inc. Under the Telephone Consumer Protection Act, CG Docket No. 02-278, Public Notice, 33 FCC Rcd 6027 (CGB 2018). 
  There were no comments filed regarding the ViSalus Petition.  Parties in the litigation against bebe (the Meyer parties) filed an opposition to the bebe Petition. A list of commenters can be found at Appendix A.  There were no comments filed regarding the Visalus Petition.  There was an opposition filed by the Meyer parties to the bebe Petition, and bebe filed reply comments.  We address the issues raised in the petitions, opposition and reply comments infra.  
  Bebe filed reply comments in response. See Appendix A; see also bebe Ex Parte.  

9. Opponents of the bebe Petition argue that bebe is not similarly situated to the prior waiver recipients because:  (1) bebe has not established and/or cannot establish that it has received prior express written consent for all autodialed or prerecorded telemarketing calls to wireless numbers; Opposition to the bebe Petition at 4.  In fact, the opponents state that bebe’s corporate designees have testified that no written disclosures were made, and no written consent was obtained, when the cell phone numbers were communicated to bebe’s employees at the point of sale.  Id. at 4-5.
 (2) bebe improperly suggests that the mere provision of telephone numbers to a caller constitutes written consent; Id. at 4.  The Meyer opponents cite to the bebe Petition at 2 and the following language:  “[t]hus, whenever a member provided her cell phone number (e.g., on-line, at a point of sale or on a client capture card), the consumer’s express consent to receive a single, confirmatory, opt-in text message …  was confirmed through his or her participation in clubbebe.”  Id. at n.13.  Based on that language, opponents contend that bebe suggests, without fully articulating its argument, that the mere provision of a phone number constituted written consent.  Id. at 4.  
 (3) bebe seeks relief only because it has been sued for violating the TCPA and seeks to evade potential liability and circumvent the court’s class certification order; Id. at 1, 4-5, 7.
 (4) bebe seeks to avoid making an evidentiary showing regarding consent; Id. at 7. 
 and (5) the requested waiver would far exceed the scope of previous waivers by covering calls made both to phone numbers obtained in writing and also to phone numbers obtained through oral exchanges at a point of sale. Id. at 6-8.  
  
10. In response to these arguments, bebe asserts that the Meyer parties and other similarly situated individuals provided the requisite consent to being called by bebe prior to October 16, 2013 when they enrolled in bebe’s loyalty program, continued their membership in that program, and enjoyed the benefits of it. Bebe Reply Comments at 1-5; see also bebe Ex Parte at 3-4.
  Further, bebe asserts that the Meyer parties and other similarly situated individuals agreed to be bound by the full clubbebe terms and conditions, including consenting to bebe communicating with them using the information they voluntarily provided and consented to be called by bebe at any telephone number provided. Bebe Reply Comments at 2.  Bebe notes that enrollment in clubbebe is voluntary; no purchase is necessary; and the customer is not required to provide a mobile telephone number.  Id.  Bebe also points out that customers could enroll in clubbebe in a bebe store, on bebe.com, on bebe’s mobile application or through bebe’s customer service line.  Bebe Reply Comments at 2-3.
  Bebe states that by their participation in clubbebe, including signing the receipts which reflected their membership number, the Meyer parties and other clubbebe members “manifested their assent to be bound by the written clubbebe Terms & Conditions.” Id. at 3; see also bebe Ex Parte at 4.  Bebe further notes that customers were required to complete their enrollment by sending a response “YES” text message to bebe (opt-in text message).  Bebe Reply Comments at 3, note 3; see also bebe Ex Parte at 8.  Bebe states that because its vendor filed for bankruptcy protection in 2013, it is not able to confirm whether individuals received an opt-in text message.  Bebe Reply Comments at 4.
  Bebe additionally asserts that “the process by which customers enroll in clubbebe creates a contract between bebe and the customer, and the Terms and Conditions form the written contract between them.” See bebe Ex Parte at 4-5.

III. DISCUSSION
11. In this Order, we grant waivers to ViSalus and bebe as described more fully below.  Specifically, we find good cause exists to grant individual retroactive waivers of section 64.1200(a)(2) of the Commission’s rules to calls made on or before October 7, 2015 because petitioners have demonstrated that they are similarly situated to petitioners granted relief in the 2015 TCPA Declaratory Ruling.  We emphasize that these waivers do not apply to calls for which there was not some form of written consent previously obtained prior to the 2012 rule changes.  After October 7, 2015, we find that each petitioner should have been in full compliance with the Commission’s rules for each subject call. 
12. The Commission may waive its rules for good cause shown. 47 CFR § 1.3; WAIT Radio v. FCC, 418 F.2d 1153 (D.C. Cir. 1969), appeal after remand, 459 F.2d 1203 (D.C. Cir. 1972), cert. denied, 409 U.S. 1027 (1972); Northeast Cellular Tel. Co. v. FCC, 897 F.2d 1164 (D.C. Cir. 1990). 
  A waiver may be granted if:  (1) the waiver would better serve the public interest than would application of the rule; and (2) special circumstances warrant a deviation from the general rule. Northeast Cellular, 897 F.2d at 1166.
  Generally, the Commission or the Bureau, through properly exercised delegated authority, may waive Commission rules if the relief requested would not undermine the rule’s policy objectives and would otherwise serve the public interest. WAIT Radio, 418 F.2d at 1157.
  The Commission and the Bureau have each previously found that special circumstances similar to petitioners’ warranted waivers. 2015 TCPA Declaratory Ruling, 30 FCC Rcd at 8014, para. 101; 2016 Waiver Order, 33 FCC Rcd at 11648, para. 12.
  
13. We find that the two petitioners before us have adequately demonstrated that they are similarly situated to earlier waiver recipients. The Petitioners assert that there was industry-wide confusion after the new rule went into effect as to whether prior express consent obtained previously would remain valid, and stated they needed more time to obtain those new consents under the new rule without running the risk of being subject to litigation.  See Bebe Petition at 8, 10-11; ViSalus Petition at 3-4, 7-8.
  Specifically, both petitioners assert that there was industry-wide confusion after the 2012 TCPA Order went into effect, that they needed more time to obtain new consents under the 2012 TCPA Order, and that they would benefit from a retroactive waiver. Bebe Petition at 1, 8-10; ViSalus Petition at 1, 3-4, 7-8.
  Both have demonstrated that they incorrectly but reasonably interpreted the Commission’s 2012 TCPA Order by citing that order’s language and the lack of evidence to refute their claimed confusion. Id.
  Finally, we note that neither petitioner is required to provide proof of actual confusion, consistent with our precedent, and there is no evidence in the record that challenges their claimed confusion.  
14. While there is no dispute in the record that ViSalus obtained written consent for the calls at issue, the record indicates that bebe may not have done so for each such call. See, e.g., bebe Petition at 2 (“[t]hus, whenever a member provided her cell phone number (e.g., on-line, at a point of sale or on a client capture card), the consumer’s express consent to receive a single, confirmatory, opt-in text message [] was confirmed through his or her participation in clubbebe.”); see also bebe Reply Comments at 2-3 (noting that customers can enroll in clubbebe in a bebe store, on bebe.com, on bebe’s mobile application, or through bebe’s customer service line).
  As the Meyer parties point out, bebe describes one of its methods to get consent requiring only oral consent from the consumer when providing their telephone number. Id.; see also bebe Ex Parte at 4 (noting that, as part of her enrollment, Ms. Barrett orally provided bebe with her information – including her mobile phone number – in a bebe store at the point of sale).
  In its reply, bebe is not clear whether it in fact obtained written consent under our earlier rule. Bebe Reply Comments at 2, 6-8; see also bebe Ex Parte at 3-4.
  We thus emphasize that this waiver applies only to calls for which bebe obtained written consent. 
15. Finally, we reject the other arguments of those opposing bebe’s waiver.  Consistent with previous waiver grants, we find the relief bebe seeks here is rooted in uncertainty in the Commission’s 2012 order, irrespective of ongoing TCPA litigation. 2015 TCPA Declaratory Ruling, 30 FCC Rcd at 8014-15, para. 102; see also 2016 Waiver Order, 33 FCC Rcd at 11651, para. 19.
  We also find unavailing the argument that bebe merely seeks to avoid making a showing on consent it obtained for specific calls because the confusion bebe and others have demonstrated in seeking waivers is exactly the reason they cannot produce evidence of consent under the new rules.
IV. ORDERING CLAUSES
16. Accordingly, IT IS ORDERED, pursuant to sections 4(i), 4(j) and 227 of the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 154(j), 227, and sections 1.3, 64.1200 of the Commission’s rules, 47 CFR §§ 1.3, 64.1200, and pursuant to the authority delegated in sections 0.141 and 0.361 of the Commission’s rules, 47 CFR §§ 0.141, 0.361, that the Petition for Retroactive Waiver and Request for Expedited Ruling, filed by ViSalus, Inc. in CG Docket No. 02-278 on September 14, 2017 IS GRANTED.
17. IT IS FURTHER ORDERED, pursuant to sections 4(i), 4(j) and 227 of the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 154(j), 227, and sections 1.3, 64.1200 of the Commission’s rules, 47 CFR §§ 1.3, 64.1200, and pursuant to the authority delegated in sections 0.141 and 0.361 of the Commission’s rules, 47 CFR §§ 0.141, 0.361, that the Petition for Expedited Declaratory Ruling Granting a Limited, Retroactive Waiver of 47 CFR § 64.1200(a)(2) of the Federal Communications Commission’s Rules, filed by bebe stores, inc. in CG Docket No. 02-278 on November 18, 2016 IS GRANTED IN PART AND OTHERWISE DENIED to the extent indicated herein.
18. IT IS FURTHER ORDERED that this ORDER shall be effective upon release. 


FEDERAL COMMUNICATIONS COMMISSION

						
						


Patrick Webre
Chief 
Consumer and Governmental Affairs Bureau 
Appendix A
List of Commenters 
The following parties filed comments in response to the two Public Notices issued in this matter (CG Docket 02-278):

Commenter	Petition		Abbreviation	

Melita Meyer, Samantha Rodriquez, Courtney Barrett 
and the Meyer Classes 	bebe 		Meyer parties
	
bebe stores, inc.	bebe 		 




bold – filing reply comments only.  


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