HR-10610-119
Referred to the House Committee on Energy and Commerce.
Sponsored by Suhas Subramanyam (D-VA)
What it does
The bill would require the Federal Communications Commission, within 1 year of enactment, to revise 47 C.F.R. 64.1200(f)(9) so it reads as revised in the FCC's January 26, 2024 final rule on unlawful text messages and robocalls (89 Fed. Reg. 5098). The revised definition would take effect 18 months after enactment. A rule of construction says the bill does not imply the FCC previously lacked authority to require that prior express consent be in writing.
Who benefits
Consumers who receive unwanted autodialed or prerecorded calls and texts, since the rule's definition of consent would be fixed in statute-directed form. Telemarketing compliance staff and lawyers who would get a stable definition. Marketers that comply with the standard may also gain from clearer rules, and the FCC gains a congressional directive supporting its approach.
Who is hurt
Telemarketers, lead generators, and businesses that rely on consent obtained through methods the revised definition may not allow, and that would bear compliance and system-change costs. Small businesses with fewer compliance resources may be affected more. Companies that challenged or relied on a narrower reading of the consent rule would lose that argument, and the bill could increase exposure to lawsuits under the Telephone Consumer Protection Act.
Supporters argue
Supporters argue the bill would lock in a definition of written consent that the FCC already adopted through notice-and-comment rulemaking, protecting consumers from lead-generator consent practices that can bind a person to calls from many companies. They contend a congressional directive would end doubts about the FCC's authority, which the rule of construction addresses, and give businesses a clear standard with an 18-month transition period.
Opponents argue
Opponents argue the bill would impose compliance costs on legitimate businesses, especially small ones, that rely on current consent practices, and could raise exposure to private lawsuits under the Telephone Consumer Protection Act. They contend that freezing a specific regulatory text into a statutory mandate would reduce the FCC's flexibility to adjust the rule as technology and evidence change, and that the 2024 rule drew objections from industry commenters.
Constitutional context
Congress regulates telecommunications and interstate calling under the Commerce Clause (Art. I, §8, cl. 3). Restrictions on commercial calls and texts raise First Amendment commercial speech questions under Central Hudson Gas & Electric v. Public Service Commission (1980), and autodialer limits were treated in Barr v. American Association of Political Consultants (2020). Because Congress would direct the rule's text itself, it reduces exposure to post-Loper Bright challenges to the FCC's statutory authority.
Checks and balances
Congress gains direct control over the content of an FCC rule and narrows the agency's discretion, while courts retain First Amendment and statutory review and the FCC remains the implementer.
Historical precedent
Congress enacted the Telephone Consumer Protection Act of 1991 and later the TRACED Act of 2019, which directed the FCC to act on unlawful robocalls.