I. New and Noteworthy

II. Awaiting Decision (Items on "Circulation")

III. Other Pending Petitions    

a. Petitions Relating to "Prior Express Written Consent"    

b. Petitions Relating to Automatic Telephone Dialing Systems (ATDS)     

c. Petitions Relating to "Junk" Faxing Rules    

d. Other Petitions

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

New and Noteworthy

      FCC Adopts Robocall Blocking Order On November 16, 2017, the FCC Commissioners voted to adopt a Report and Order that expressly authorizes voice service providers to block certain types of robocalls that falsely appear to be from telephone numbers that do not or cannot make outgoing calls.  Specifically, the Report and Order adopts rules authorizing providers to block calls in the following instances: (1) when the subscriber to a particular telephone number requests blocking of calls appearing to be from that number; (2) when the Caller ID can’t be valid; or (3) if the call appears to be from an invalid number (for example, a number with an area code that doesn’t exist), a number that has not been allocated to a provider, or a number allocated to a provider but not currently in use.  The Report and Order also prohibits voice service providers from including 911 emergency calls in their blocking and encourages providers to establish a simple way to identify and fix blocking errors.         Comcast Asks for Relief from “Reassigned Number” Liability On November 2, 2017, counsel for Comcast filed a notice of a meeting with staff for FCC Chairman Ajit Pai to discuss issues related to “reassigned number” TCPA liability that have arisen since the adoption of the FCC’s 2015 TCPA Order.  Specifically, Comcast noted that the “constructive knowledge” approach to reassigned numbers interfered with Comcast’s ability to contact customers for a variety of reasons, including confirming service appointments, providing notice of outages, and discussing billing issues.  To alleviate these “unintended consequences,” Comcast requested that the FCC “issue a declaratory ruling, on its own motion, that companies who make calls to wireless numbers provided by their customers will not be held liable under the 2015 TCPA Order if they: (1) have a reasonable belief that they had consent to make the call; and (2) did not have actual or constructive knowledge of reassignment prior to or at the time of the call, as actual and constructive knowledge are generally understood.”  The FCC has not yet responded to this request, and the “reassigned number” issue remains pending before the D.C. Circuit Court of Appeals as part of its review of the 2015 TCPA Order.       Members of Congress Write to Chairman Pai in Support of Health Care-Related TCPA Clarification On October 13, 2017, a bipartisan group of 17 Members of Congress sent a letter to FCC Chairman Ajit Pai asking for an update on the status of a petition for clarification of the 2015 TCPA Omnibus Declaratory Ruling and Order filed by Anthem, Inc., Blue Cross Blue Shield Association, Wellcare Health Plans, Inc., and the American Association of Healthcare Administrative Management.  The petition has been pending since July 2016, and specifically seeks to 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 Order encompasses “HIPAA covered entities and business associates.”  The Members agree with the petitioners’ position that these clarifications are necessary to harmonize the TCPA and HIPAA.  The Members further comment that “[t]hese helpful, important non-telemarketing communications can be critical safeguards to reaching underserved populations and supporting more effective, efficient health care,” and “also promote treatment adherence and prevent lapses in health insurance coverage.”  The Members encouraged the FCC “to finish its review and inform all concerned of what clarifications it proposes” within 90 days.

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. Credit Union National Association (filed September 29, 2017)

  • The Credit Union National Association (CUNA) “requests that the Commission exempt from the TCPA’s “prior express consent” requirement informational calls made by credit unions to wireless numbers in one of two circumstances: (1) the wireless subscriber has an established business relationship with the credit union; or (2) the calls are in fact not charged to the called party, for example, because the called party’s wireless plan has unlimited minutes and texts.”  CUNA suggests that the exemption would be applicable only to calls that provide information such as “opportunities for members to address an outstanding debt before incurring additional fees; account balance and overdraft alerts; possible security breaches of members’ personal and financial information; and payment card usage and fraud alerts,” as well as “calls and texts from credit unions concerning credit union policy, voting, or financial education material.” 
  • To minimize potential privacy concerns, CUNA proposes that credit unions that make calls or send texts pursuant to the requested exemption would “provide an easy to use opt-out mechanism” and comply with the following conditions: (1) Calls and text messages must identify the name of the credit union and include contact information for the credit union (for voice calls, these disclosures would need to be made at the beginning of the call); (2) Each credit union shall send or place only one call or text message per day, up to a maximum of three calls or text messages combined per week from a specific credit union (unless the call or text is also exempted based on the free-to-end-user exemption for certain communications from financial institutions or the BBA amendment concerning the collection of federally-backed debt); and (3) Credit unions relying on this exemption must offer the party being contacted an easy to use and effective ability to opt out of receiving future autodialed or prerecorded or artificial voice calls and text messages, which the credit union will honor.
  • CUNA claims that this relief is needed to “eliminate the antiquated distinctions between informational calls made to residential lines and those made to wireless subscribers.”  According to CUNA, the FCC has broad authority to adopt the requested exemption under the TCPA even though such an exemption is not expressly authorized under the statute, and that the FCC has exercised similar authority in adopting other TCPA exemptions.  It also claims that the requested exemption aligns with guidance from the CFPB regarding communications with distressed and financially vulnerable consumers.
  • On October 6, 2017, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 17-798) seeking comment on the petition.  Comments are due on November 6, 2017 and replies are due on November 21, 2017.

2. Cunningham and Moskowitz (filed Jan. 22, 2017)

  • Two consumer petitioners are seeking to reverse two FCC interpretations of the “prior express consent” provision of the TCPA.  First, the petitioners challenge a 1992 order in which the Commission determined that “persons who knowingly release their phone numbers have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary.”  Second, the petitioners question a 2008 Commission order which concluded that “the provision of a cell phone number to a creditor, e.g., as part of a credit application, reasonably evidences prior express consent by the cell phone subscriber to be contacted at that number regarding the debt.”  The petitioners claim that the FCC contravened Congressional intent when it adopted these two orders by improperly reading an implied consent provision into the TCPA.  As such, they seek a declaratory ruling or a rulemaking that would result in the following: (1) overturning previous interpretations of the prior express consent provision such that implied consent may be given in certain circumstances; and (2) adoption of a uniform requirement to satisfy the prior express consent requirement for both cellular and residential telephone numbers.
  • On February 8, 2017, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 17-144) seeking comment on the petition.  Comments were due on March 10, 2017 and replies were due on March 27, 2017.

3. bebe stores, inc. (filed November 18, 2016)

  • bebe, a retail clothing chain, requests a retroactive waiver of the Commission’s prior express written consent rule adopted in 2012.  bebe claims that, like other petitioners who received waivers of the rule, the company was confused about whether it had to obtain new consent after the rule was adopted from customers who had previously given consent to receive calls.  bebe’s petition notes that the requested waiver would be for the period between October 16, 2013 and October 7, 2015.
  • bebe, like many other petitioners, is currently fighting a TCPA class action suit related to telemarketing calls made to former customers.
  • On December 2, 2016, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 16-1332) seeking comment on the petition.  Comments were due on January 6, 2017 and replies were due on January 23, 2017.

4. 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.

5. 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.

6. 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."

Petitions Relating to Automatic Telephone Dialing Systems (ATDS)

      None

Petitions Relating to “Junk” Faxing Rules

1. Amerifactors Financial Group, LLC​ (filed July 13, 2017)

  • Amerifactors seeks a declaratory ruling that the TCPA does not apply to fax advertisements that the recipient receives through an online fax service or on a device other than a fax machine.  Amerifactors argues that these types of transmissions do not fit within the plain meaning of the statutory language, and that they do not cause the harms that Congress sought to avoid in enacting the TCPA.  It further asserts that the 2015 proclamation by the Consumer and Governmental Affairs Bureau that “e-faxes” are subject to the TCPA was based on insufficient information about modern fax technology (such as online fax services).  Amerifactors next suggests that “the petition does not seek to deprive consumers of a remedy for illegitimate fax advertisement transmissions.  Rather, it seeks to rein in the number of putative TCPA class actions arising from fax advertisements, which appear to benefit only plaintiffs’ attorneys.”  Finally, Amerifactors argues that applying the TCPA to faxes received through an online fax service would violate the First Amendment.
  • Amerifactors, 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 July 18, 2017, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 17-690) seeking comment on the petition.  Comments are due on August 17, 2017 and replies are due on September 1, 2017.

2. M3 USA Corporation (filed Mar. 20, 2017)

  • M3 USA Corporation is a third-party provider of qualitative and quantitative market research surveys focused on healthcare-related topics.  One of the methods M3 uses to “facilitate participation in its blinded market research surveys” is to send invitations via fax to several types of healthcare professionals.  According to the petition, “every market research survey conducted by M3 is reviewed and analyzed to ensure that the surveys involve only opinion collection and not advertising or marketing.”  However, M3 is currently fighting a TCPA class action suit related to faxes the company sent in connection with its surveys.
  • ​M3 has asked the Commission for a declaratory ruling which includes the following: (1) there is no presumption under the TCPA that faxes sent by for-profit businesses are pretexts for advertisements; (2) informational faxes are not pretexts for advertisements under the TCPA unless the transmission promotes specific, commercially-available property, goods or services to the recipient of the fax; (3) market research surveys do not constitute property, goods or services vis-à-vis the  persons taking the surveys under the TCPA; and (4) Invitations to participate in market research surveys are not advertisements under the TCPA unless commercially-available property, goods or services are promoted in the fax itself or during the survey itself.  According to the petition, such declarations would be consistent with FCC precedent and guidance with regard to advertising and surveys, and is necessary to resolve uncertainty in the courts about whether fax transmissions like those sent by M3 are actually pretexts for advertising.
  • On March 28, 2017, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 17-288) seeking comment on the petition.  Comments were due on April 27, 2017 and replies were due on May 15, 2017.

3. Cynosure, Inc. (filed September 30, 2016; withdrawn and refiled on October 26, 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 were due on November 14, 2016 and replies were due on November 21, 2016.

4. 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 were due on August 29, 2016 and replies were due on September 13, 2016.

5. 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.

 

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.  Three applications for review of this order were subsequently filed in the TCPA docket, one of which was submitted by a TCPA plaintiff’s group that is currently challenging the original Andawaiver order in the D.C. Circuit Court.  Neither the Bureau nor the Commission has responded to these requests.

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)

  • Brigadoon Fitness Inc. (Nov. 7, 2016)

  • Renue Systems Development Corp., Inc.; Renue Systems, Inc.; Renue Systems of Chicago, Inc. (Jan. 4, 2017)

  • Chester Limited, Inc. (Jan. 23, 2017)

  • Foot Levelers, Inc. (Feb. 2, 2017)

  • M3 USA Corporation (Feb. 14, 2017)

  • Lane Labs-USA, Inc. (Feb. 24, 2017)

  • Getaway Seminars, Inc. (Feb. 28, 2017)

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 were due on November 14, 2016 and replies were due on November 21, 2016. On December 2, 2016, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 16-1337) seeking comment on the United Auto Credit Corporation and Brigadoon Fitness Inc. petitions.  Comments were due on December 16, 2016 and replies were due on December 23, 2016. On February 2, 2017, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 17-118) seeking comment on the Renue Systems Development Corp., Inc. et al. petition.  Comments were due on February 16, 2017 and replies were due on February 23, 2017. On February 9, 2017, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 17-152) seeking comment on the Chester Limited, Inc. and Foot Levelers, Inc. petitions.  Comments were due on February 23, 2017 and replies were due on March 2, 2017. On February 22, 2017, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 17-184) seeking comment on the Chester Limited, Inc. and Foot Levelers, Inc. petitions.  Comments were due on March 8, 2017 and replies were due on March 15, 2017. On March 3, 2017, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 17-211) seeking comment on the Lane Labs-USA, Inc. and Getaway Seminars, Inc. petitions.  Comments were due on March 17, 2017 and replies were due on March 24, 2017.

Other Petitions

1. Insights Association and American Association for Public Opinion Research (filed Oct. 30, 2017)

  • Insights Association and AAPOR submitted a lengthy petition seeking the following declaratory ruling relief from the FCC: (1) communications are not presumptively “advertisements” or “telemarketing” under the TCPA simply because they are sent by a for-profit company, or might be for an ultimate purpose of improving sales or customer relations; (2) the presence in a communication, or some other ancillary document or webpage, of a marginal element that might arguably be considered advertising does not convert the communication into a “dual-purpose” communication; (3) survey, opinion, and market research firms are not subject to the Commission’s vicarious liability regime as articulated in Dish Network; and (4) survey, opinion, and market research studies do not constitute goods or services vis-à-vis the survey respondent, and are not transformed into goods or services merely because they include some nominal inducement to participate.  The petitioners state that they “are not asking for a carve-out from the TCPA for researchers.”  However, [b]ecause of confusion in the courts regarding the difference between marketing and research, and in light of related questions regarding the TCPA’s July 10, 2015, ruling, …Commission guidance is urgently needed to help curb abusive TCPA litigation.” 

2. ContextMedia, Inc. d/b/a Outcome Health (filed Oct. 20, 2017)

  • Outcome Health is requesting a declaratory ruling that it is not liable or entitled to a safe harbor for certain non-telemarketing text messages sent to consumers as a result of an “unknown and inadvertent technical error present in Outcome’s system.”  In support of its request, Outcome Health cites to FCC precedent suggesting that good-faith efforts to comply with the statute and the Commission’s rules do not warrant liability under the TCPA.  Outcome Health filed its petition after being sued by an individual who had opted-in to receiving daily text messages with healthy living tips from Outcome Health, but whose subsequent opt-out request was not fulfilled due to a technical error that took place when Outcome Health switched to a new text message platform provider.  
  • On October 27, 2017, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 17-1054) seeking comment on the petition.  Comments are due on November 27, 2017 and replies are due on December 12, 2017.

3. Great Lakes Higher Education Corp. et al. (filed December 16, 2016)

  • Great Lakes Higher Education Corp., Navient Corp., Nelnet, Inc., the Pennsylvania Higher Education Assistance Agency, and the Student Loan Servicing Alliance seek reconsideration of the rules adopted by the FCC on August 11, 2016 to implement the government debt collection call exemption to the TCPA adopted as part of the Bipartisan Budget Agreement Act of 2015. In particular, the parties challenge the Commission's decision to impose a three-call-per-month limit, as well as the limitation of calls solely to the debtor, as being unsupported by the statute and contrary to Congress's intent in adopting the exemption. They also generally challenge the FCC's interpretation of its rulemaking authority as impermissibly broad.

4. Professional Services Council (filed August 4, 2016)

  • 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.

5. Anthem, Inc.; Blue Cross Blue Shield Association; Wellcare Health Plans, Inc.; American Association of Healthcare Administrative Management (filed July 28, 2016

  • 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.

6. National Consumer Law Center (filed July 26, 2016)

  • 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 were due on August 11, 2016, and replies were 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.

7. Todd C. Bank (filed March 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 were due on May 17, 2016.

8. 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.

9. 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.

10. 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.

11. 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.