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CGB Seeks Comment on Pet for Exp Dec Ruling by SCU, Inc

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Released: August 1, 2014


Federal Communications Commission

News Media Information 202 / 418-0500

445 12th St., S.W.


Washington, D.C. 20554

TTY: 1-888-835-5322

DA 14-1122

Released: August 1, 2014




CG Docket No. 02-278

Comment Date: September 2, 2014

Reply Comment Date: September 15, 2014

On July 10, 2014, Santander Consumer USA, Inc. (Santander) filed a petition for declaratory

ruling requesting that the Commission clarify certain aspects of the Telephone Consumer Protection Act


Specifically, Santander asks the Commission to “clarify and confirm that ‘prior express

consent’ to receive non-telemarketing calls and text messages to cellular telephones sent using an

automatic telephone dialing system (‘ATDS’) and/or an artificial or prerecorded voice message cannot be


If the Commission determines that the TCPA includes the right to revoke “prior express

consent” to receive such non-telemarketing communications, Santander then asks in the alternative that

the Commission clarify that the caller may require consumers to use one or more of the following

methods to effectively revoke “prior express consent”: (1) in writing at the mailing address designated by

the caller; (2) by email to the email address designated by the caller; (3) by text message sent to the

telephone number designated by the caller; (4) by facsimile to the telephone number designated by the

caller; and/or (5) as prescribed by the Commission hereafter as needed to address emerging technology.3

The TCPA and Commission rules prohibit autodialed or prerecorded non-emergency calls to

cellular telephone numbers without the prior express consent of the called party.4

Santander argues that

neither the TCPA nor the Commission’s prior rulings explicitly provide a right to revoke “prior express

consent” and that the lack of such an explicit statement means that consumers have no right to revoke

prior express consent to receive non-telemarketing calls.5

Santander asserts that the rising tide of TCPA


Petition for Expedited Declaratory Ruling, CG Docket No. 02-278, filed by Santander Consumer USA, Inc. on

July 10, 2014 (Petition). The TCPA is codified as 47 U.S.C. § 227.

2 Petition at 1.

3 Petition at 1, 9-14. Elsewhere in its petition, Santander states its request differently by asking the Commission to

establish a requirement that consumers use one or more of these methods to revoke prior express consent. Id. at 4.

4 47 U.S.C. § 227(b)(1)(A)(iii); 47 C.F.R. § 64.1200(a)(1)(iii).

5 See, e.g., Petition at 7-8.


litigation and inconsistent court decisions on this issue demonstrate the need for clarification.6

We seek

comment on these and any other issues raised in the Petition.

Pursuant to sections 1.415 and 1.419 of the Commission’s rules, 47 CFR §§ 1.415, 1.419,

interested parties may file comments and reply comments on or before the dates indicated on the first

page of this document. Comments may be filed using the Commission’s Electronic Comment Filing

System (ECFS). See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).

Electronic Filers: Comments may be filed electronically using the Internet by accessing

the ECFS:

Paper Filers: Parties who choose to file by paper must file an original and one copy of

each filing.

Filings can be sent by hand or messenger delivery, by commercial overnight courier, or

by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the

Commission’s Secretary, Office of the Secretary, Federal Communications Commission.

All hand-delivered or messenger-delivered paper filings for the Commission’s Secretary

must be delivered to FCC Headquarters at 445 12th Street, SW, Room TW-A325,

Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries

must be held together with rubber bands or fasteners. Any envelopes and boxes must be

disposed of before entering the building.

Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority

Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.

U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th

Street, SW, Washington DC 20554.

People with Disabilities: To request materials in accessible formats for people with disabilities

(braille, large print, electronic files, audio format), send an e-mail to or call the

Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

The proceeding this Notice initiates shall be treated as a “permit-but-disclose” proceeding in

accordance with the Commission’s ex parte rules.7

Persons making ex parte presentations must file a

copy of any written presentation or a memorandum summarizing any oral presentation within two

business days after the presentation (unless a different deadline applicable to the Sunshine period applies).

Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation

must (1) list all persons attending or otherwise participating in the meeting at which the ex parte

presentation was made, and (2) summarize all data presented and arguments made during the

presentation. If the presentation consisted in whole or in part of the presentation of data or arguments

already reflected in the presenter’s written comments, memoranda or other filings in the proceeding, the

presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or

other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be

found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission

staff during ex parte meetings are deemed to be written ex parte presentations and must be filed

6 Id. at 4, 9-15.

7 47 C.F.R. §§ 1.1200 et seq.



consistent with rule 1.1206(b). In proceedings governed by rule 1.49(f) or for which the Commission has

made available a method of electronic filing, written ex parte presentations and memoranda summarizing

oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment

filing system available for that proceeding, and must be filed in their native format (e.g., .doc, .xml, .ppt,

searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission’s ex

parte rules.

FOR FURTHER INFORMATION CONTACT: B. Lynn Follansbee, Consumer and Governmental

Affairs Bureau, Federal Communications Commission, (202) 418-1514;



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