Kelley Drye’s Communications Practice Group presents this tracker of active Telephone Consumer Protection Act (“TCPA”) petitions before the Federal Communications Commission (“FCC”).  With the recent increase in litigation regarding alleged violations of the TCPA, many issues relating to the interpretation of the statute have been presented to the FCC by impacted parties.  These petitions can be primary jurisdiction referrals or be presented directly by a litigant in a TCPA action.  The FCC currently has a number of petitions pending related to TCPA interpretation.  The tracker below briefly summarizes each petition and the issues presented in them.

Number of Petitions Pending

New Petitions Filed

Upcoming Comments

Decisions Released

24 (+2 seeking a retroactive waiver of the opt-out requirement for fax ads)

United Auto Credit Corporation (filed 10/28/16) – seeking a retroactive waiver of the opt-out requirement for fax ads

SafeMark Systems, LP – seeking a retroactive waiver of the opt-out requirement for fax ads
(Comments due 11/14/16;
Replies due 11/21/16)

Cynosure, Inc. – seeking a rulemaking proceeding to repeal the requirement to include opt-out language on solicited fax advertisements as well as a declaratory ruling that the opt-out notice requirement does not apply to solicited fax ads
(Comments due 11/14/16;
Replies due 11/21/16)

Bureau Order responding to 28 petitions seeking a retroactive waiver of the opt-out requirement for fax ads (11/2/16)

 New and Noteworthy

New and Noteworthy:

Robocall Strike Force Issues Initial Recommendations

On October 26, 2016, members of the “Robocall Strike Force” met at the FCC’s headquarters to provide updates on the group’s activities since being formed in August.  First, the Strike Force reported that, to facilitate the FCC’s goal of carriers deploying call blocking technologies, it had developed a consumer outreach plan with an FCC-hosted webpage to provide information about call blocking resources.  It also announced a proposal for a network-to-device information sharing framework to give consumers better call data and call handling solutions, but did not give a deadline for implementation of the framework.  It further reported that a number of downstream providers had committed to facilitating call blocking.  Second, regarding caller ID authentication standards, the Strike Force announced that it had tasked standards bodies such as such as ATIS (Alliance for Telecommunications Industry Solutions), the SIP (Session Initiation Protocol) Forum, the Industry Traceback Group sponsored by the U.S. Telecom Association, and CTIA with developing and testing SS7 authentication standards, which will make it more difficult to disguise caller ID information.  Finally, the Strike Force reported that its initial “do-not-originate” (DNO) trial, during which participating providers, at the request of the Internal Revenue Service, blocked calls that appeared to come from certain IRS phone numbers, led to a 90% reduction in consumer complaints about IRS scam calls.  The group expects to release a full report on the trial after the first quarter of 2017 and plans to expand the trial to include additional providers and telephone numbers.  Chairman Wheeler spoke during the meeting, and asked the Strike Force members to continue pushing for aggressive timelines for achieving its goals.  Commissioners Clyburn and Rosenworcel also attended the meeting, and while they expressed appreciation to the Strike Force for its work up to this point, stressed that there is still much to be done.  

            FCC Hosts Twitter Town Hall on Robocalls

On November 4, 2016, the FCC held an hour-long “town hall” session on Twitter during which FCC staff clarified restrictions on autodialed calls that can be placed to consumers’ home and wireless phone numbers.  Several tweets released during the session also told consumers how to file complaints if they receive what they believe to be an impermissible call, and encouraged consumers to visit the FCC’s website to learn more about the Commission’s initiatives on this issue.

            FCC Announces Robocall Webinar for Consumers

On November 7, 2016, the FCC announced that the Consumer and Governmental Affairs Bureau will host a webinar for consumers entitled “How to Deal with Robocalls” on Wednesday, December 14, 2016 from 1:00 PM – 2:00 PM.  The FCC stated that a detailed agenda for the webinar will be released at a later date, but in its Public Notice indicated that the event “will explain the FCC’s role in addressing this issue and the steps consumers can take to protect themselves from and/or decrease the amount of robocalls they receive.”  

Awaiting Decision (Items on “Circulation”)         

None    

Other Pending Petitions

Petitions are grouped by their primary subject matter.

Petitions Relating to “Prior Express Written Consent"

1. Mortgage Bankers Association (filed June 16, 2016)

  • The Mortgage Bankers Association seeks an exemption from the TCPA’s prior express consent requirement for “certain non-telemarketing residential mortgage servicing calls [and text messages] to cellular telephone numbers” that mortgage servicers are required to make to borrowers at various times throughout a loan pursuant to other state and federal statutes.  The MBA notes that although some mortgage servicers will be covered by the TCPA exemption established in the 2015 Bipartisan Budget Act, others are not because the exemption only covers debts (including residential mortgages) that are owed to or guaranteed by the United States.  The MBA seeks to expand this exemption to all residential mortgage servicers.  The exemption requested would, according to the petition, clarify any discrepancies between the TCPA and other federal and state laws and regulations that “require mortgage servicers to place outbound telephone calls to borrowers at various times throughout a loan.”
  • On August 3, 2016, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 16-883) seeking comment on the petition.  Comments were due on September 2, 2016 and replies were due on September 19, 2016.

2. Network Communications International Corp. (filed May 10, 2016)

  • NCIC is a provider of an inmate calling service (“ICS”) that enables incarcerated individuals to place collect calls from correctional facilities to residential or cellphone lines.  The company explains that inmate calls initiated through an ICS often cannot be completed either because the called party’s cellphone service provider blocks incoming collect calls or the called party does not properly answer the incoming call as he/she often may not recognize the correctional facility’s caller identification number.  NCIC seeks a declaratory ruling that in such an instance, it is permitted to send a single follow-up text message to the called party’s phone number to inform them of the uncompleted call from the inmate, and that such protocol “comports with the Commission’s qualified exemption to the TCPA’s requirement of prior express consent for certain ICS calls made to cellphone numbers.”  NCIC notes that the Commission issued a similar declaratory ruling for a different ICS provider confirming the TCPA exemption.
  • On June 7, 2016, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 16-628) seeking comment on the petition.  Comments were due on July 7, 2016 and replies are due on July 22, 2016.

3. Mobile Media Technologies (filed March 7, 2016)

  • MMT seeks a declaratory ruling to clarify that neither the TCPA nor the FCC’s July 2015 Omnibus order “require a party transmitting a text message to create or make available to consumers a specific or particular method by which a consumer may revoke prior express consent to be texted, including bilateral reply “STOP” text messaging functionality.”  The petition also asks the Commission to clarify that a “reasonable method” of revoking consent “must, at a minimum, be a method that actually reaches the texting party.”  MMT is a text broadcaster, and claims that many of its licensees are facing TCPA litigation, in part because MMT’s system was not previously set up for bilateral text messaging functionality such that a text recipient could revoke consent by texting the word “STOP.”  MMT argues that nothing in the TCPA mandates that a texting party provide consumers any specific or particular method to revoke consent, so long as the method employed is reasonable.  

4. Rita’s Water Ice Franchise Company, LLC (filed December 2, 2015)

  • Rita’s has requested a limited retroactive waiver of the Commission’s “prior express written consent” rule for certain promotional text messages sent to customers between October 16, 2013 (the effective date of the rule) and July 17, 2015 (when Rita’s ceased sending all text messages).  Like many other petitioners seeking TCPA relief or clarification from the FCC, Rita’s is currently defending itself in a class action lawsuit based on these promotional text messages.
  • Rita’s argues that it is entitled to a similar waiver to that which was granted to the Coalition of Mobile Engagement Providers and the Direct Marketing Association in the Commission’s July 2015 TCPA Order, in recognition that “there was legitimate confusion over whether a written consent obtained before October 16, 2013 remained valid after that date if the written consent did not precisely track the new ‘prior express written consent’ standard.”  The waiver Rita’s seeks would only apply to those messages for which the company had received the recipient’s consent prior to October 16, 2013.
  • On December 14, 2015, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 15-1421) seeking comment on the petition.  Comments were due on January 13, 2016 and replies were due on January 28, 2016.

5. National Cable & Telecommunications Association (filed October 1, 2015)

  • The NCTA seeks to have extended to its members the retroactive and prospective waiver granted by the Commission in its July 2015 TCPA order of its rules requiring regulated entities to obtain prior express written consent from a consumer before placing a call to that consumer’s wireless phone number.  NCTA argues that the same relief that was given to the Direct Marketing Association and others is warranted for its members because they have “suffered the same confusion, and are exposed to the same kind of ‘pointless and expensive class action litigation’” as the entities that originally received the waiver.  NCTA noted in its petition that although the prospective aspect of the waiver was set to expire on October 7, its members would still benefit from it because it “would provide NCTA’s members sufficient time to comply with the prior express written consent requirement and would enable NCTA’s members to better defend claims and avoid unnecessary and costly litigation moving forward.”
  • On November 3, 2015, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 15-1246) seeking comment on the petition.  Comments were due on December 3, 2015 and replies were due on December 18, 2015.

6. National Association of Broadcasters (filed August 18, 2015)

  • The NAB seeks to have extended to its members the retroactive and prospective waiver of the Commission’s rules requiring regulated entities to obtain prior express written consent from a consumer before placing a call to that consumer’s wireless phone number.  The waiver was originally granted in the Commission’s July 2015 TCPA order to the Coalition of Mobile Engagement Providers, the Direct Marketing Association, and the Retail Industry Leaders Association.
  • On September 25, 2015, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 15-1074) seeking comment on the petition.  Comments were due on October 26, 2015 and replies were due on November 9, 2015.

7. American Bankers Association (filed August 8, 2015)

  • The American Bankers Association seeks a reconsideration and modification of the exemptions granted to financial institutions in the Commission's Declaratory Ruling and Order. The exemption permits financial institutions to send automated, free-to-end-user calls and texts to mobile devices concerning potentially fraudulent transactions, breaches of customers' personal data, remediation measures to prevent identity theft, and notification of money transfers. However, the exemption permits calls and texts only to "the wireless telephone number provided by the customer." The ABA argues that this "provided by" limits the value of the exemption and order should be modified to read "exempted calls and texts may be sent only to affected customers and money transfer recipients."

8. F-19 Petition (filed July 29, 2015)

  • Fitness 19 (F-19), a national gym franchise, seeks a retroactive waiver of the application of 47 U.S.C. § 227 and FCC Order 12-21 "with respect to the requirement to obtain additional express consent from gym members prior to sending text message marketing correspondence through an automated telephone dialing system."  F-19 seeks the same benefit the FCC conferred upon members of the Direct Marketing Association (DMA).5.     
  • F-19, like many other petitioners, is currently fighting a TCPA class action suit related to contacting its customers through automated messages.
  • On September 25, 2015, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 15-1074) seeking comment on the petition.  Comments were due on October 26, 2015 and replies were due on November 9, 2015.

9. Kale Realty (filed July 23, 2015)

  • Kale Realty (Kale) is seeking a retroactive waiver regarding the written consent requirements contained in section 64.1200(a)(2).  Kale Realty is fighting a putative class action lawsuit based on a single unsolicited text advertisement that Kale argues was in essence a job ad.  Kale had a prior personal and professional relationship with the recipient.
  • On September 25, 2015, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 15-1074) seeking comment on the petition.  Comments were due on October 26, 2015 and replies were due on November 9, 2015.

10. Mammoth Mountain Ski Area, LLC (filed February 23, 2015)

  • Mammoth Mountain’s petition seeks a declaratory ruling either that: (1) “consents obtained prior to the October 16, 2013 rule change through consumers’ voluntary provision of their telephone number remain valid as prior contractual obligations and invalidating these consents amounts to an improper retroactive impairment of Mammoth Mountain’s contractual rights”; or (2) the Commission misinterpreted the meaning of “prior express consent” in its 2012 order finding that prior express consent required a company to obtain the consumer’s written consent.
  • Mammoth Mountain, like many other petitioners, is currently fighting a TCPA class action suit related to telemarketing calls made former customers.
  • On March 9, 2015, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 15-300) seeking comment on the petition.  Comments were due on April 6, 2015 and replies are due on April 21, 2015.

Petitions Relating to “Junk” Faxing Rules

1. Cynosure, Inc. (filed September 30, 2016)

  • Cynosure has asked the Commission to initiate a rulemaking proceeding to repeal the requirement to include opt-out language on solicited fax advertisements as well as a declaratory ruling that the opt-out notice requirement does not apply to solicited fax ads.  Cynosure argues that the FCC exceeded its authority under the TCPA in adopting the opt-out notice requirement because the TCPA only applies to unsolicited faxes.  It further argues that the rule violates the First Amendment. 
  • Cynosure, like many other petitioners, is currently fighting a TCPA class action suit related to faxes sent on its behalf that purportedly violate the statute.
  • On October 28, 2016, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 16-1231) seeking comment on the petition.  Comments are due on November 14, 2016 and replies are due on November 21, 2016.

2. RingCentral, Inc. (filed July 6, 2016)

  • RingCentral seeks a declaratory ruling that (1) a fax broadcaster whose facilities or services are used by a third party content generator is not itself the "sender" of a facsimile, for purposes of the TCPA’s prohibition against sending unsolicited advertisements by facsimile; and (2) de minimis promotional phrases contained in otherwise bona fide informational, transactional or even another party's unsolicited fax advertising communications do not constitute “unsolicited advertisements” in violation of the TCPA.  Alternatively, RingCentral has asked the Commission to clarify that in certain limited circumstances fax broadcaster “senders” can rely on third party “consent” for sending de minimis promotional information along with a facsimile that is otherwise lawfully sent by the fax broadcaster's customer to a third party recipient. 
  • RingCentral filed its petition in part because it has been named as a defendant in a class action lawsuit alleging TCPA violations based on fax advertisements it sent to third party recipients on behalf of its customers.
  • On July 29, 2016, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 16-863) seeking comment on the petition.  Comments are due on August 29, 2016 and replies were due on September 13, 2016.

3. Kohll's Pharmacy & Homecare, Inc. (filed Mar. 24, 2016)

  • The petition, filed by a provider of medical equipment, requests a declaratory ruling that facsimiles sent on its behalf did not violate the TCPA “where the facsimiles simply informed businesses of the health benefits of corporate flu vaccines.”  The petitioner claims that such transmissions do not fit within the definition of an “unsolicited advertisement” because “the purpose of the facsimile transmission was to ‘promote wellness … so that people would get vaccinated and not get ill.’” 
  • Kohll’s, like many other petitioners, is currently fighting a TCPA class action suit related to faxes sent on its behalf that purportedly violate the Act.

4. Joseph T. Ryerson & Son, Inc. (filed Nov. 4, 2015)

  • Petitioner Joseph T. Ryerson & Son, Inc. (“Ryerson”) has asked the Commission to issue a declaratory ruling that “faxes that initiate in digital form and are received in digital form do not fall within the TCPA.”  Ryerson argues that these types of transitions are more akin to emails than traditional faxes, and therefore should be regulated under the CAN-SPAM Act.  It further argues that applying the TCPA to digital fax transmissions would violate the First Amendment and would be void for vagueness under the First and Fifth Amendments.
  • Ryerson, like many other petitioners, is currently fighting a TCPA class action suit related to alleged unsolicited faxes received by the plaintiff from Ryerson.

5. Westfax, Inc. (filed Oct. 23, 2012)

  • In its petition, Westfax sought clarification of several issues related to sending e-faxes, noting that he Commission had not updated its rules since 2006.  First, the company asked the Commission to clarify whether e-faxes are considered faxes, as well as whether and to what extent TPCA and Junk Fax Protection Act rules apply to e-faxes.  Second, they ask who is considered the "recipient of an e-fax.
  • The petition also requests clarification on a number of questions related to "opt-out" requirements, including whether standard "opt-out" language would be acceptable and the liability of third-party fax broadcasters.

Anda, Inc. Retroactive Waiver.  On October 30, 2014, the FCC released an order addressing an application for review filed by Anda, Inc. and related petitions seeking clarification of the Commission’s rules requiring individuals and entities that send fax advertisements to include certain information on the fax to allow recipients to “opt-out” of receiving such transmissions in the future.  The FCC denied all of the petitions insofar as they requested the FCC to rule that the “opt out” language requirement did not apply to faxes sent with the prior express consent of the recipient, but granted a retroactive waiver to the petitioners and other similarly situated parties because the scope of the opt-out requirement was previously unclear.  Prior to October 30, 2014, there were 24 additional petitions pending that sought clarification of the  “opt-out” notice requirement in Section 64.1200(a)(4)(iv) of the FCC’s rules.  Through the Anda order (FCC 14-164), the Commission granted a retroactive waiver of the opt-out notice requirement): Anda, Inc.; Forest Pharmaceuticals, Inc.; Staples, Inc.; Gilead Sciences, Inc.; Douglas Walburg/Richie Enterprises, LLC; Futuredontics, Inc.; All Granite & Marble Corp.; Purdue Pharma; Prime Health Services, Inc.; TechHealth, Inc.; Crown Mortgage Company; Magna Chek, Inc.; Masimo Corp.; Best Buy Builders, Inc.; S&S Firestone, Inc.; Cannon & Associates d/b/a Polaris Group; Stericycle, Inc.; American CareSource Holdings, Inc.; Carfax, Inc.; Merck and Company, Inc.; UnitedHealth Group, Inc.; MedLearning, Inc. and Medica, Inc.; Unique Vacations, Inc.; and Power Liens, LLC.

Prior to the Anda order, but not addressed in that order, two parties had petitioned for similar relief.  Francotyp-Postalia, Inc. (FP Mailing Solutions, Inc.) (filed October 14, 2014); Allscripts (several petitioners filed this collectively) (filed September 30, 2014).  On November 4, 2014, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 14-1598) seeking comment on the petitions.  The Public Notice stated that, as a result of the Anda order, it was not necessary to consider these petitioners’ requests for declaratory ruling.  It sought comment on the requests for retroactive waiver consistent with the Anda order.  Comments were due on November 18, 2014 and replies were due on November 25, 2014.

On August 28, 2015, the Consumer & Governmental Affairs Bureau released an Order (DA 15-976) granting retroactive waivers to 117 petitioners, consistent with the FCC’s October 2014 decision in Anda.  Generally, the Bureau Order granted petitions filed before June 23, 2015.  Following the Order, the Commission has received seven applications for review of the decision to grant the waiver.  In response, more than a dozen of the entities that benefited from the retroactive waiver have filed oppositions to these applications.  However, the Commission has not yet responded to the requests.

On December 9, 2015, the FCC issued an Order to address eleven additional requests for a retroactive waiver of the Commission’s “opt-out” language requirements for fax advertisements, similar to the waiver granted in the October 2014 Anda Order.  The Order grants the requests of Megadent, Inc., Costco Wholesale Corporation, Dental Fix Rx, LLC, Scrip Holding Co., and SourceMedia, LLC on the basis that these parties were similarly situated to the entities that received waivers in the Anda Order because they were uncertain about whether the opt-out notice requirement applied to fax advertisements sent with the consent of the recipient.  The Commission was careful, however, to note that “the recipients of the waivers granted herein should already be in compliance after having benefited from the Commission’s previous clarification.”  The Order denies the requests of Ivoclar Vivadent, Inc., Renaissance Systems and Services, LLC, Athena Health, Inc., Ohio National Mutual, Inc., and Prevention Pharmaceuticals, Inc. because these parties admitted in their requests that they were “unaware of the opt-out notice requirement.”  Finally, the Order denies the request of Zimmer Dental, Inc. because the petitioner claims, incorrectly, that “because the faxes at issue were sent to those parties with whom it had an existing business relationship, they were solicited.”  On December 18, 2015, a plaintiff in a class action against Source Media, LLC filed a petition for reconsideration of the Order.  The Commission has not yet responded to that request.

On November 2, 2016, the Consumer and Governmental Affairs Bureau (CGB) issued an Order (DA 16-1242) in response to 26 additional requests for a retroactive waiver of the Commission’s “opt-out” language requirements for fax advertisements, similar to the waiver granted in the October 2014 Anda Order.  The Order grants the request of the following 25 parties on the basis that they were similarly situated to the entities that received waivers in the Anda Order because they were uncertain about whether the opt-out notice requirement applied to fax advertisements sent with the consent of the recipient: Virbac Corporation; Weinberg & Associates; Humana Insurance Company et al.; Posture Pro, Inc.; LKN Communications, Inc., d/b/a ACN, Inc.; Educational Testing Service; Inter-Med, Inc. d/b/a Vista Dental Products; Legal & General America, Inc.; Jeana Fleitz, LLC d/b/a The X-Ray Lady; C. Specialties, Inc.; Buccaneers Limited Partnership; Warner Chilcott Corporation; Wedgewood Village Pharmacy, Inc.; Roche Diagnostics Corporation; Amatheon, Inc.; HomeoPet, LLC; Synchrony Bank d/b/a CareCredit and Synchrony Financial; Cochran Wholesale Pharmaceutical, Inc.; North American Bancard, LLC; Biolase, Inc.; Power Products, LLC d/b/a Del City Wire Co., Inc.; Schwabe North America Incorporated, Nature’s Way Brands, LLC; Integrative Brands, LLC; and Enzymatic Therapy, LLC.  As with previous orders in response to such waiver petitions, CGB noted that “the recipients of the waivers granted herein should already be in compliance after having benefited from the Commission’s previous clarification.”  In addition, the Order grants in part a petition filed by Amsterdam Printing & Litho, Inc., but denies the company’s request with respect to any non-compliant fax sent after April 30, 2015.  Finally, the Order denies the requests of Fetch, Inc. d/b/a Petplan, AZCOMP Technologies, Inc. and Cartridge World North America, LLC because these parties admitted in their requests that they were unaware of the opt-out notice requirement.

The following additional petitions seek retroactive waivers on this issue remain pending:

  • Safemark Systems, LP (October 6, 2016)
  • United Auto Credit Corporation (October 28, 2016)

On July 31, 2015 the Consumer and Governmental Affairs Bureau released a Public Notice (DA 15-876) seeking comment on the following petitions: Megadent, Inc.; Ivoclar Vivadent, Inc.; Renaissance Systems and Services, LLC.; Zimmer Dental, Inc.; and Costco Wholesale Corp. Comments were due August 14, 2015 and replies were due on August 21, 2015.

On September 25, 2015 the Consumer and Governmental Affairs Bureau released a Public Notice (DA 15-1077) seeking comment on the following petitions: McVey Associates, Inc.; Dental Fix Rx LLC; Scrip Holding Co.; and SourceMedia LLC.  Comments were due October 9, 2015 and replies were due on October 16, 2015.

On December 4, 2015, the Consumer and Governmental Affairs Bureau released a Public Notice (DA 15-1381) seeking comment on the following petitions: Virbac Corporation, Advanced Care Scripts, Inc., and Fetch, Inc. d/b/a Petplan.  Comments were due on December 18, 2015 and replies were due on December 30, 2015.

On January 29, 2016, the Consumer and Governmental Affairs Bureau released a Public Notice (DA 16-102) seeking comment on the following petitions: AZCOMP Technologies, Inc.; Weinberg & Associates; Humana Insurance Company et al.  Comments were due on February 12, 2016 and replies were due on February 19, 2016.

On March 25, 2016, the Consumer and Governmental Affairs Bureau released a Public Notice (DA 16-317) seeking comment on the following petitions: Posture Pro, Inc.; LKN Communications, Inc. d/b/a ACN, Inc.; and Educational Testing Service.  Comments were due on April 8, 2016 and replies were due on April 15, 2016.

On May 31, 2016, the Consumer and Governmental Affairs Bureau released a Public Notice (DA 16-598) seeking comment on the following petitions: Warner Chilcott Corporation and Wedgewood Village Pharmacy, Inc.  Comments were due on June 14, 2016 and replies were due on June 21, 2016.

On August 26, 2016, the Consumer and Governmental Affairs Bureau released a Public Notice (DA 16-976) seeking comment on the following petitions: North American Bancard, LLC.  Comments were due on September 9, 2016 and replies were due on September 16, 2016.

On September 30, 2016, the Consumer and Governmental Affairs Bureau released a Public Notice (DA 16-1113) seeking comment on the following petitions: Cartridge World North America, LLC; Biolase, Inc.; Power Products, LLC d/b/a Del City Wire Co., Inc.; Schwabe North America Incorporated; and Amsterdam Printing & Litho, Inc.  Comments were due on October 14, 2016 and replies were due on October 21, 2016.

On October 28, 2016, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 16-1231) seeking comment on the Safemark Systems, LP petition.  Comments are due on November 14, 2016 and replies are due on November 21, 2016.

Other Petitions

1. Professional Services Council (filed 8/4/16)

  • Professional Services Council seeks reconsideration of a portion of the FCC’s Broadnet declaratory ruling released on July 5, 2016, which found that federal government contractors are not subject to the TCPA.  Specifically, the PSC petition asks the Commission to modify the declaratory ruling in order to “provide TCPA relief to government contractors acting on behalf of the federal government, in accordance with their contract’s terms and the government's directives, without regard to whether a common-law agency relationship exists.”  The petition asserts that by basing the exemption on common-law agency principles, the Commission may have inadvertently narrowed the scope of TCPA relief available to government contractors because, according to PSC, “government contracts often contain language that expressly states the government contractor is not in an agency relationship with the government.” 
  • On August 15, 2016, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 16-924) seeking comment on the petition.  Comments were due on September 14, 2016 and replies were due on September 29, 2016.

2. Anthem, Inc.; Blue Cross Blue Shield Association; Wellcare Health Plans, Inc.; American Association of Healthcare Administrative Management (filed 7/28/16)

  • The joint petitioners seek clarification from the FCC regarding certain statements in the 2015 Omnibus TCPA Order related to non-telemarketing healthcare calls.  Specifically, the petitioners have asked the FCC to issue a declaratory ruling and/or clarify two items: (1) that the provision of a phone number to a “covered entity” or “business associate” (as those terms are defined under HIPAA) constitutes prior express consent for non-telemarketing calls allowed under HIPAA for the purposes of treatment, payment, or health care operations; and (2) that the term “healthcare provider” in paragraphs 141 and 147 of the 2015 Omnibus TCPA Order encompasses “HIPAA covered entities and business associates.”  The petitioners assert that these clarifications are necessary to harmonize the TCPA and HIPAA, and point out that the FCC has previously looked to HIPAA for guidance on how to interpret healthcare calls under the TCPA.
  • On August 19, 2016, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 16-947) seeking comment on the petition.  Comments were due on September 19, 2016 and replies are due on October 4, 2016.

3. National Consumer Law Center (filed 7/26/16)

  • The NCLC, together with a number of legal aid programs and public interest organizations, seeks a stay and reconsideration of the FCC’s July 5, 2016 Declaratory Ruling that grants a TCPA exemption for calls by government contractors.  In its petition, the NCLC argues that the FCC misinterpreted both the TCPA and the Supreme Court’s ruling in Campbell-Ewald v. Gomez when it determined that government contractors do not fall within the definition of a “person” under the TCPA, and therefore are not subject to the Act’s restrictions on auto-dialed calls.  It further asserts that “[i]f the Commission does not reconsider and change its ruling in this proceeding, tens of millions of Americans will find their cell phones flooded with unwanted robocalls from federal contractors with no means of stopping these calls and no remedies to enforce their requests to stop these calls.”
  • On August 1, 2016, the Consumer & Governmental Affairs Bureau released two Public Notices (DA 16-878 and DA 16-879) seeking comment on the petition.  Comments on the NCLC’s request for stay of the Broadnet order are due on August 11, 2016, and replies are due on August 16, 2016.  Comments on NCLC’s request for reconsideration of the Broadnet order were due on August 31, 2016 and replies were due on September 15, 2016.

4. Todd C. Bank (filed Mar. 7, 2016)

  • The petitioner, an attorney with a home-based business, has asked the Commission to clarify that the rules prohibiting robocalls “apply to calls made to home-business telephone lines that are registered with the telephone-service provider as residential lines.”  He argues that such a clarification would be consistent with the language of the TCPA which states that the robocall provision of the Act applies to “any residential telephone line.”  He further asserts that this interpretation would be consistent with prior statements by the FCC on this issue. 
  • Mr. Bank is currently appealing a dismissal by the U.S. District Court for the Eastern District of New York of his class action lawsuit for TCPA violations.  Following submission of his petition, the FCC filed an amicus curiae brief in support of Mr. Bank’s request to stay the appellate case pending the Commission’s disposition of his FCC petition.
  • On March 31, 2016, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 16-341) seeking comment on the petition.  Comments were due on May 2, 2016 and replies are due on May 17, 2016.

5. Papa Murphy's Holdings, Inc. and Papa Murphy's International L.L.C (filed Feb. 22, 2016)

  • Papa Murphy’s seeks a retroactive waiver of the Commission’s TCPA rules for text messages sent to individuals who had provided written consent to receive such messages from the company between October 16, 2013 and June 17, 2015.  Papa Murphy’s claims that it is similarly situated to parties that received a waiver of the FCC’s “prior express written” consent requirement for calls to mobile phones in the July 2015 Omnibus TCPA Order due to confusion about the rule.  Papa Murphy’s also seeks a “brief prospective waiver of 89 days to allow Papa Murphy’s to re-opt in those individuals who had provided written consent to receive text messages prior to October 16, 2013.”
  • On March 22, 2016, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 16-302) seeking comment on the petition.  Comments were due on April 21, 2016 and replies were due on May 6, 2016.

6. Lifetime Entertainment Services, LLC (filed Dec. 11, 2015)

  • Lifetime has asked the Commission to clarify that the TCPA and the Commission’s implementing rules “do not cover calls (including unsolicited, pr~recorded ones) providing information about television programing distributed by cable operators and cable programming networks that are intended to reach the cable operator's subscribers who are already entitled to watch such cable programming without having to pay any additional charges.”  Lifetime asserts that these calls are purely informational and not made for the purpose of advertising or marketing, and therefore not within the scope of the TCPA. 
  • On February 5, 2016, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 16-128) seeking comment on the petition.  Comments were due on March 7, 2016 and replies were due on March 21, 2016.

7. Anthem, Inc. (filed June 10, 2015)

  • Anthem submitted a petition seeking a declaratory ruling and exemption regarding non-telemarketing healthcare calls.  Anthem asks that the FCC make non-telemarketing health care calls and text messages from health plans and providers subject to an “opt out” rather than “opt in” consent regime.  Anthem argues that these calls provide important information regarding the health and wellness of its members and provide an unique level of benefit to the consumer.
  • Anthem also asks that new categories of calls be added to the FCC’s existing list of calls already subject to the opt-out regime. Anthem identifies those calls that are (1)  case management calls to engage consumers in the treatment of existing medical conditions (2) preventative medicine calls to arm patients with information necessary to seek preventive care or (3) calls to arm consumers with information about using and maintaining medical benefits.
  • On August 31, 2015, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 15-979) seeking comment on the petition.  Comments were due on September 30, 2015 and replies were due on October 15, 2015.
  • Note:  Although the petition was filed before the FCC’s TCPA Declaratory Ruling and Order (FCC 15-72), the Order did not address Anthem’s request.

8. Vincent Lucas (filed June 18, 2014)

  • Vincent Lucas asks for an expedited declaratory ruling holding that a person is vicariously or contributorily liable if that person provides substantial assistance or support to any seller or telemarketer when that person knows or consciously avoids knowing that the seller or telemarketer is engaged in any act or practice that violates 47 U.S.C. § 227(b) or (c).
  • The individual who filed this petition is currently involved in a lawsuit in which he alleges that three companies and two individuals “provided substantial assistance to several telemarketers while knowing that those telemarketers were engaged in practices that violate the TCPA.”  In his petition, Mr. Lucas claims that the magistrate judge in the litigation misinterpreted a former FCC ruling on vicarious liability and is planning to dismiss his vicarious and contributory liability claims.  
  • On July 9, 2014, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 14-976) seeking comment on the petition.  Comments were due on August 8, 2014 and replies were due on August 25, 2014.

9. Acurian, Inc. (filed Feb. 5, 2014)

  • Acurian filed a petition seeking clarification that telephone call to a residential telephone line seeking an individual’s participation in a clinical pharmaceutical trial is exempt from the restrictions on prerecorded calls under the TCPA.  Acurian argues in its petition that it does not make calls for a commercial purpose.  Alternatively, the petition asserts that if Acurian’s calls are found to be commercial, that they do not constitute telemarketing or advertising calls. 
  • On February 20, 2014, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 14-229) seeking comment on the petition.  Comments were due on March 24, 2014 and replies were due on April 8, 2014.