At its open meeting on March 22, 2018, the FCC Commissioners voted to approve a Further Notice of Proposed Rulemaking (FNPRM) “to ensure that one or more databases are available to provide callers with the comprehensive and timely information they need to discover potential number reassignments before making a call.” The FNPRM was issued in a proceeding opened under Chairman Pai last year, and seeks comment on issues such as the following: “(1) the information that callers who choose to use a reassigned numbers database need from such a database; (2) how to ensure that the information is reported to a database; and (3) the best approach to making that information available to callers.” The FNPRM has not yet been published in the Federal Register, but initial comments will be due to the FCC 45 days after publication and replies will be due 30 days after that.
On March 23, 2018, the FCC and FTC co-hosted a Policy Forum at FCC headquarters to discuss the regulatory challenges posed by illegal robocalls and what the FTC and FCC are doing to both protect consumers and encourage the development of private-sector solutions. The three-hour session included remarks by three FCC Commissioners (Chairman Pai, and Commissioners Clyburn and Carr) and two FTC Commissioners (Acting Chairman Ohlhausen and Commissioner McSweeney), as well as three panels focused on the following topics: (1) challenges facing consumers and industry; (2) recent regulatory and enforcement efforts; and (3) solutions and tools for consumers.
The prepared remarks and panel discussions did not provide much new insight into robocall issues. On the impact of the D.C. Circuit TCPA decision in ACA International v. FCC, FCC panelists generally suggested that it would not have much of an impact on current enforcement, as most of the FCC’s recent enforcement cases have involved instances that did not rely on the ATDS definition, and, moreover, the recent fines were based on violations of the Truth in Caller ID Act rather than the TCPA. Regarding efforts to reduce unlawful calls, both industry representatives and policymakers pointed with anticipation to the SHAKEN/STIR call authentication standards as a way to resolve many TCPA problems. Finally, while there seemed to be widespread agreement among the speakers that call “labeling” needs to be as accurate as possible so that legitimate calls do not get caught up in the call blocking fray, there was no detailed discussion about how this should be accomplished.
On April 23, 2018, the two agencies will also co-host a Technology Expo for consumers that will feature technologies, devices, and applications to minimize or eliminate the illegal robocalls consumers receive.
It also remains to be seen how the new incoming FTC commissioners will address policy, collaboration with the FCC and other regulatory bodies, and enforcement on these issues.
FCC Petitions Tracker
Kelley Drye’s Communications group prepares a comprehensive summary of pending petitions and FCC actions relating to the scope and interpretation of the TCPA.
Number of Petitions Pending
- 24 (+9 seeking a retroactive waiver of the opt-out requirement for fax ads)
- 1 petition for reconsideration of the rules to implement the government debt collection exemption
- 1 application for review of the decision to deny a request for an exemption of the prior-express-consent requirement of the TCPA for “mortgage servicing calls”
- 3 requests for reconsideration of the 11/2/16 fax waiver in response to petitions by 22 parties
- 1 request for reconsideration of the 10/14/16 waiver of the prior express written consent rule granted to 7 petitioners
New Petitions Filed
Click here to see the full FCC Petitions Tracker.
Cases of Note
The D.C. Circuit’s long-awaited decision in ACA International, et al. v. Federal Communications Commission, No. 15-1211 (March 16, 2018) has prompted the Ninth Circuit to ask parties to weigh in on how the decision should be interpreted in a case pending in that circuit.
In Jordan Marks v. Crunch San Diego, LLC, No. 14-56834, the Ninth Circuit heard oral argument in December 2016 relating to the definition of an automatic telephone dialing system (ATDS) under the TCPA. The plaintiff filed a class action lawsuit based upon his receipt of three text messages from a Crunch Gym franchise. The plaintiff contended that the promotional text messaging platform used by the gym served as an ATDS because it had the potential capacity to store, produce or call randomly or sequentially generated telephone numbers and thus that the gym should be liable for the unwanted messages under the TCPA. During oral argument, the Ninth Circuit questioned whether the plaintiff’s definition of an ATDS would apply to smartphones – under the reasoning that permitting the definition to encompass all devices with only the potential capacity to call randomly or sequentially generated telephone numbers would subject all smartphone users to potential TCPA liability – an untenable result.
In the ACA International decision, the D.C. Circuit set aside the FCC’s clarification of the ATDS and specifically addressed the smartphone issue. The D.C. Circuit concluded that the FCC adopted an overly broad view of what constitutes an ATDS and declared that “the TCPA cannot reasonably be read to render every smartphone an ATDS subject to the Act’s restrictions.” However, the D.C. Circuit did not clarify the requisite “capacity” needed – present or future – to be an autodialer.
On March 22, 2018, the Ninth Circuit ordered the appellant in Marks to submit a brief addressing the effect, if any, of the ACA International decision, with the appellee permitted to file an answering brief. (See Order, Case No. 14-56834, Doc. No. 70.) We expect that the D.C. Circuit’s decision likely will have considerable effects on ongoing litigation involved autodialed calls and texts, and that the Ninth Circuit’s request for additional briefing on the impact of the decision will be repeated by other circuit and district courts. Ninth Circuit Affirms That Signed Enrollment Form Serves as Consent to Receive Patient Survey Calls
The Ninth Circuit tackled the issue of “prior express consent” to receive calls under the TCPA in affirming a lower court’s decision that a signed enrollment form submitted with a patient’s health insurance plan meant she had consented to receive such calls in Fober v. Mgmt. & Tech. Consultants, LLC, No. 16-56220 (Mar. 29, 2018).
The plaintiff filed a putative class action against the quality assurance service provider defendant after she purportedly received several calls made by an automatic telephone dialing system. The calls asked the plaintiff to provide information about the quality of her experience with her doctor. The plaintiff’s insurance plan had referred to her to the doctor identified in the survey. The Central District of California granted the defendant’s motion for summary judgment in determining that because the plaintiff listed her phone number on an enrollment form that allowed the insurer to share her information, she had provided “prior express" consent to receive calls at issue.
Although the plaintiff contended on appeal that she gave only limited consent and the calls she received pertaining to the quality of the doctor’s care fell outside the scope of her consent, the Ninth Circuit disagreed. The Ninth Circuit held that while “merely providing a phone number . . . does not evince a willingness to be called for any reason,” the plaintiff in this instance agreed by signing an enrollment form that noted that her information could be disclosed “for purposes of treatment, payment and health plan operations, including but not limited to, utilization management, quality improvement, disease or case management programs.” Because the plaintiff was called “for a purpose expressly described” in the enrollment form – “assessing the quality of Plaintiff’s healthcare,” the court found that prior express consent was properly granted. Court Dismisses Putative TCPA Class Action Based on Plaintiff’s Failure to Follow Text Opt-Out Instructions
Defendant Edible Arrangements’ revocation of consent instruction – which asked recipients to “reply STOP to cancel” unwanted marketing text messages – did not make it unreasonably hard for customers to opt out of receiving text message advertisements, according to the U.S. District of New Jersey, which dismissed the case of Rando v. Edible Arrangements International, LLC, Case No. 1:17-cv-00701, on March 28, 2018.
The plaintiff filed a putative class action alleging TCPA violations based on text messages that Edible Arrangements allegedly sent to the plaintiff after she revoked her consent to receive such messages. Although the messages from Edible Arrangements ended with the instruction “reply STOP to cancel,” the plaintiff replied with several other messages, including “Take my contact info off please” and “I want to confirm that I have been removed off your contacts.” The court reasoned that while this language clearly indicated a desire to revoke consent to receive text messages, the plaintiff erred by not using the required language that the computerized texting service would recognize as effecting such a revocation.
Thus, the court reasoned it was undisputed that the plaintiff ignored the defendant’s revocation method – and did not “even attempt to comply with the apparently simple directions repeatedly given to her: ‘Reply . . . STOP to cancel.’” In this instance, the plaintiff failed to state a claim because she did not allege that the defendant’s “designated exclusive means for revoking consent made it difficult or impossible to effectuate her actually-attempted revocation, and that her chosen method of revocation was unreasonable.”