I. New and Noteworthy II. Awaiting Decision (Items on "Circulation") III. Other Pending Petitions a. Petitions Seeking to Establish or Modify Exemptions to TCPA Consent Requirements b. Petitions Relating to "Prior Express Written Consent" c. Petitions Relating to Automatic Telephone Dialing Systems (ATDS) d. Petitions Relating to "Junk" Faxing Rules e. 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
US Chamber of Commerce, 16 Others Ask the FCC to rule on ATDS Definition Soon On February 5, 2020 the U.S. Chamber of Commerce, joined by 16 other trade associations representing a range of industries1, filed an ex parte letter urging the FCC to rule on their 2018 Petition for Declaratory Ruling (see our coverage in the full FCC Petitions Tracker) concerning the TCPA’s definition of an automatic telephone dialing system (ATDS) and to make addressing TCPA-related issues “one of the Commission’s very top priorities in 2020.” The group believes immediate FCC action is warranted for a handful of reasons. In the two years since the D.C. Circuit’s decision in ACA International v. FCC, a series of “divergent TCPA interpretations” have resulted from federal appellate court decisions. Specifically, the letter cites the divide between the Ninth Circuit’s decision in Marks v. Crunch San Diego, LLC and the D.C. and Third Circuit’s decisions in ACA International and Dominguez v. Yahoo, Inc., respectively. According to the letter, this has only deepened regulatory and statutory uncertainty, and “fanned the flames of abusive TCPA litigation.” The letter states that this ultimately harms consumers because “businesses are discouraged” from communicating “time-critical, non-telemarketing” information for fear being exposed to litigation. The letter concludes by pointing out the Commission’s vast record on this matter and the “ample time” they have had to consider and rule on the ATDS definition.
Awaiting Decision (Items on "Circulation")
Other Pending Petitions Petitions are grouped by their primary subject matter. Petitions Seeking to Establish or Modify Exemptions to TCPA Consent Requirements
1. Lucas Cranor (filed December 17, 2019)
- On December 17, 2019, Lucas Cranor, an individual located in Castle Rock, Colorado, filed a petition for declaratory ruling asking the Commission to rule that (1) customers of wireless providers are able to opt-out of marketing calls and text messages and (2) wireless providers must honor such opt-out requests. Common carriers have historically been exempt from TCPA requirements because any promotional calls and/or text messages made to subscribers are free of cost.
- On December 27, 2019, the Consumer and Governmental Affairs Bureau released a public notice (DA 19-1332) seeking comment on the petition. Comments are due on January 27, 2020, and reply comments were due on February 11, 2020.
2. IHS Markit Ltd. – Petition for Emergency Declaratory Ruling (filed September 21, 2018)
- HIS Markit Ltd, a consumer outreach provider retained to provide recall notices in the Takata airbag litigation, asked the FCC to confirm that motor vehicle safety recall-related communications are made for emergency purposes and therefore fall under the TCPA’s public safety exception. IHS Markit argues that non-telemarketing motor vehicle safety recall notices provide critical, time-sensitive information to consumers and are exempted from the TCPA’s prior express consent requirements as calls “made for emergency purposes.” IHS Markit requests that the FCC declare that non-telemarketing calls related to motor vehicle safety recalls, including, for example, those calls made to address certain recalls of vehicles equipped with Takata airbag inflators, may be placed to wireless numbers even absent prior consent from the subscriber.
- On October 4, 2018, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 18-1023) seeking comment on the petition. Comments were due on November 5, 2018 and reply comments were due on November 20, 2018.
3. Federal Housing Finance Authority (filed November 15, 2017)
- The Federal Housing Finance Authority (FHFA) seeks clarification from the FCC that the interpretation of the TCPA set forth in the Commission’s 2016 Blackboard Declaratory Ruling is also applicable to calls made by mortgage servicers to borrowers during and in the wake of emergencies such as Hurricanes Harvey and Irma. The request notes that “FHFA’s regulated entities need to contact borrowers immediately where they are impacted by declared disasters— regardless of express consent— to provide important information about mortgage assistance that would be consistent with [an] exception [to the prior express consent requirement].” Examples of such communications might include notices that payment obligation is suspended, warnings of potential fraud scams, and information about mortgage loan modification or other relevant matters provided by a reputable service provider.
- On November 17, 2017, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 17-1121) seeking comment on the petition. Comments were due on December 1, 2017 and replies were due on December 8, 2017.
4. 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 were due on November 6, 2017 and replies were due on November 21, 2017.
5. 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.
6. 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.
7. 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 were due on October 4, 2016.
8. 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.
9. 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 2015 TCPA 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” requirement limits the value of the exemption and that the order should be modified to read “exempted calls and texts may be sent only to affected customers and money transfer recipients.”
Petitions Relating to "Prior Express Written Consent"
1. Capital One Services, LLC (filed November 1, 2019)
- On November 1, 2019, Capital One Services, LLC (“Capital One”), a financial services company, filed a petition for declaratory ruling asking the Commission to rule that a message in response to a customer’s opt-out request that seeks to clarify the scope of their request is in line with the Commission’s 2012 declaratory ruling in SoundBite Communications, Inc., meaning that such responses to opt-out requests would not constitute a violation of the TCPA.
- In SoundBite, the Commission reasoned that confirmation messages sent in response to opt-out requests are not in violation of the TCPA so long as they do not contain “marketing, solicitations, or attempt to convince the recipient to reconsider his or her opt-out decision.” Capital One argues that some consumers may only want to cancel one part of a broader automatic text-messaging program when they send an opt-out message, and not the entire service. In addition, Capital One argues that a confirmation message that also allows the possibility for the consumer to make such a clarification is beneficial in ways similar to the standalone opt-out confirmation.
- On November 7, 2019, the Consumer and Governmental Affairs Bureau released a public notice (DA 19-1156) seeking comment on the petition. Comments were due on December 9, 2019, and reply comments were due December 24, 2019.
2. Lori Wakefield (filed July 15, 2019)
- Lori Wakefield filed a petition for reconsideration of the Commission’s June 13, 2019, order granting limited retroactive waivers of its prior-express-written-consent rule to ViSalus, Inc. and bebe stores, inc. for the period between October 16, 2013, and October 7, 2015. The Commission granted the limited waivers, consistent with waivers granted to other petitioners, due to confusion about whether written consent obtained prior to when the rule was adopted was still valid. At the time ViSalus and bebe filed their waiver petitions, they were each fighting TCPA class action suits related to telemarketing calls made to former customers. The Wakefield petition asks the Commission to reconsider the waiver granted to ViSalus “in light of subsequent developments in related litigation between Wakefield and ViSalus.” Wakefield’s petition asserts that ViSalus never asserted or provided evidence that it had received prior express written consent from the class members in the litigation, and that, to the contrary, ViSalus “made clear that it called individuals regardless of whether it had obtained consent to be called.” The petition further states that ViSalus acknowledged that because “it did not have evidence” of consent, “[t]hat distinguishes ViSalus from many of the entities that have received a retroactive waiver.” Additionally, the petition asserts that “the evidence presented at trial regarding ViSalus’s calling practices makes clear that . . . ViSalus was not under any genuine confusion about the scope or applicability of the Commission’s rules.” The petition states that the jury in the class action suit “found that ViSalus had made around 1.85 million unlawful calls.”
3. Paul Armbruster (filed July 9, 2019)
- Paul Armbruster filed a petition for declaratory ruling or rulemaking asking the Commission to conclude that consumers have an absolute right to revoke their consent for informational text messages where the business was not required to obtain prior express written consent. Mr. Maupin is seeking to revoke consent for text messages from his wireless service provider, AT&T, that confirm that he made a payment for his service. AT&T told Mr. Maupin that “the texts are covered by the wireless carrier exemption, which allows wireless carriers to contact their own customers, regardless of whether the customer has provided express consent or not.”
- On July 18, 2019, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 19-671) seeking comment on the petition. Comments are due August 19, 2019, and replies were due September 3, 2019.
4. Patrick Maupin (filed June 21, 2019)
- Patrick Maupin filed a request that the Commission: (1) “[c]larify that the purchase of an automobile at retail from a car dealer does not automatically create an [established business relationship (“EBR”)] between the automobile purchaser and a third-party provider of a radio subscription service,” which would permit the radio subscription service provider to call the purchaser even if that purchaser is registered on the National Do-Not-Call Registry; (2) clarify that Sirius XM “would have known how to request clarification on this issue and is not entitled to any safe harbor based on possible confusion about its responsibilities”; and (3) “[c]larify that the Commission’s regulations and interpretive discussions that put the burden of proof regarding the EBR on the telemarketer and that require telemarketers to be able to show clear and convincing evidence of the EBR mean that any telemarketer should easily be able to provide such call data to prove its case in discovery, and that any contentions made by a telemarketer that it would be too costly to provide affirmative per-consumer EBR proof because of the millions of calls made by it or on its behalf is a problem of the telemarketer’s own making that should not shield it from liability or responsibility for its actions.”
- At the time Mr. Maupin filed his petition, Sirius XM was fighting a class action law suit related to calls placed to individuals on the National Do Not Call List.
- On June 28, 2019, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 19-601) seeking comment on the request for clarification. Comments were due on July 29, 2019, and replies were due on August 13, 2019.
5. SGS North America, Inc. (filed December 17, 2018)
- SGS has asked the FCC to “clarify and confirm that prior express written consent is required only when a call advertises the commercial availability or quality of any property, good, or service, or otherwise clearly encourages the purchase or rental of, or investment in, property, goods, or services within the four corners of the communication itself. Only when the call includes a free offer should anything extraneous to the content of the communication itself be considered.” According to the petition, confusion surrounding the FCC’s 2012 TCPA Order has resulted in legitimate business calls being subject to TCPA lawsuits. Therefore, the petition seeks additional guidance, as set forth in the request, on how “dual purpose” calls should be handled under the TCPA.
- Alternatively, SGS seeks relief that would be specific to its business, namely, a retroactive waiver of the prior express written consent requirements for calls that solely seek to schedule, confirm, or otherwise discuss a vehicle inspection.
- On December 20, 2018, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 18-1290) seeking comment on the petition. Comments were due on January 24, 2019 (but extended to January 30 due to the federal shutdown) and replies were due on February 8, 2019.
6. Life Insurance Direct Marketing Association et al. (filed June 18, 2018)
- The petitioners are seeking a ruling that life insurance agents and brokers are permitted to call their customers while the life insurance policies sold by servicing agents are in effect and for a period of 18 months after the policies expire based on an established business relationship between life insurance servicing agents and their customers.
- On July 6, 2018, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 18-707) seeking comment on the petition. Comments were due on August 6, 2018 and replies were due on August 21, 2018.
7. 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.
8. 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.
9. 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.
Petitions Relating to Automatic Telephone Dialing Systems (ATDS)
1. US Chamber of Commerce Institute for Legal Reform et al. (filed May 3, 2018)
- The U.S. Chamber of Commerce Institute for Legal Reform and 17 co-petitioners are seeking a declaratory ruling that (1) to be an “ATDS,” equipment must use a random or sequential number generator to store or produce numbers and dial those numbers without human intervention; and (2) only calls made using actual ATDS capabilities are subject to the TCPA. The petition was filed in response to the D.C. Circuit’s decision to overturn the FCC’s interpretation of ATDS in the 2015 Omnibus TCPA Order, and argues “the court provided a logical roadmap for how the Commission should interpret ATDS.”
- On May 14, 2018, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 18-493) seeking comment on the petition. Comments were due on June 13, 2018 and replies were due on June 28, 2018.
Petitions Relating to "Junk" Faxing Rules
1. Akin Gump Strauss Hauer & Feld LLP (filed February 26, 2019)
- Akin Gump is requesting a declaratory ruling that “a fax broadcaster is the sole liable ‘sender,’ when it both commits TCPA violations and engages in deception or fraud against the advertiser (or blatantly violates its contract with the advertiser) such that the advertiser cannot control the fax campaign or prevent TCPA violations.” According to the petition, Akin Gump’s requested clarification is consistent with the FCC’s 2006 TCPA order which concluded that the party whose goods and services are advertised in an unsolicited fax is not always the liable sender, and would also alleviate judicial confusion regarding fax sender liability.
- On March 7, 2019, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 19-159) seeking comment on the petition. Comments were due on April 8, 2019 and replies were due on April 23, 2019.
2. Best Doctors, Inc., Petition for Declaratory Ruling (filed Dec. 14, 2018)
- Best Doctors, Inc., publisher of a “Best Doctors in America” list, seeks a declaratory ruling that faxes seeking verification of contact information and the operational status of an office are not “advertisements” within the meaning of the Junk Fax Protection Act of 2005. Best Doctors states that, as part of its verification process of doctors recommended for the List, it faxes to the doctor’s office an information form verifying the doctor’s contact information and whether the doctor is continuing to see new patients. A copy of the form used is provided as part of the petition. Best Doctors contends that the verification form is not “advertising” under the Junk Fax Protection Act because it does not offer the “commercial availability or quality of any property, goods or services” of Best Doctors, Inc. It seeks a declaratory ruling to resolve conflicting court decisions concerning whether information beyond the fax itself can be considered to determine if a fax is an “advertisement.” Best Doctors notes that petitions filed by Inovalon, Inc. and M3 USA Corporation raise similar questions concerning the meaning of an “advertisement” under the statute.
- On December 21, 2018, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 18-1296) seeking comment on the petition. Comments were due on January 25, 2019 (but extended to January 30 due to the federal shutdown) and replies were due on February 8, 2019.
3. Inovalon (filed February 19, 2018)
- Inovalon is a contractor of multiple regional and national “health plans” for which it aggregates consumer health data. To collect this data, the company contacts healthcare providers to obtain patients medical records through a variety of channels, including faxing. Inovalon was recently sued by a medical provider to whom it sent a fax requesting medical records and informing the recipient about its “no cost” collection and digitization services. In its petition, Inovalon has asked the FCC to declare that: (1) Faxes sent by a health insurance plan’s designee to a patient’s medical provider, pursuant to an established business relationship between the health plan and provider, requesting patient medical records are not advertisements under the TCPA; and (2) Faxes that offer the free collection and/or digitization of patient medical records, and which do not offer any commercially available product or service to the recipients are not advertisements under the TCPA.
- On February 23, 2018, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 18-180) seeking comment on the petition. Comments were due on March 26, 2018 and replies were due on April 10, 2018.
4. M3 USA Corporation (filed March 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, at the time M3 filed its petition, it was 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.
5. 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.
6. Joseph T. Ryerson & Son, Inc. (filed November 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.
- At the time Ryerson filed its petition, it was fighting a TCPA class action suit related to alleged unsolicited faxes received by the plaintiff from Ryerson.
Special Note Regarding “Solicited Faxes” Anda, Inc. Retroactive Waiver. On October 30, 2014, the FCC released an order addressing 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. Related orders granting retroactive waivers to 154 petitioners were granted by the Consumer & Governmental Affairs Bureau on August 28, 2015 (DA 15-976), December 9, 2015 (DA 15-1402) and November 2, 2016 (DA 16-1242). Seven applications for review of the August 28, 2015 order and three applications for review of the November 2016 order were filed in the TCPA docket. The Commission has not responded to these applications for review. Bais Yaakov of Spring Valley Appeal and Subsequent Orders. In March 2017, the D.C. Circuit Court of Appeals ruled that the FCC lacked authority under the TCPA to adopt the “Solicited Fax Rule” (requiring opt-out language on faxes sent with the recipient’s prior express consent) and vacated the Anda order. Bais Yaakov of Spring Valley, et al. v. FCC, 852 F.3d 1078 (D.C. Cir. 2017). On November 14, 2018, the FCC’s Consumer and Governmental Affairs Bureau issued an order eliminating the FCC rule that required opt-out consent language on faxes sent with prior express consent (aka “solicited faxes”). Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Order (DA 18-1159). The Bureau stated that the decision was required by the “non-discretionary mandate” of Bais Yaakov. The Bureau also dismissed as moot 10 pending requests for waiver of the rules and two petitions for reconsideration of retroactive waivers previously granted by the Bureau. However, the ten applications for review of the Bureau waiver orders (see above) are pending before the full Commission and could not be addressed by the Bureau on delegated authority. On December 14, 2018, a group of TCPA plaintiffs filed an application for review asking the full Commission to vacate the CGB order. Two oppositions to the application for review were filed on December 31, 2018. The FCC has not yet responded to any of these filings.
1. Yodel Technologies LLC (Filed September 13, 2019)
- On September 13, 2019, Yodel Technologies LLC (“Yodel”), a Florida-based company that develops and uses soundboard technology in combination with live agents, filed a petition asking the FCC to either issue a ruling declaring that calls using soundboard technology are not considered prerecorded calls prohibited under Section 227(b)(1) of the TCPA or grant Yodel a retroactive waiver for any prerecorded calls made in violation of the TCPA by Yodel Technologies LLC prior to May 12, 2017. A similar petition was filed (summarized below) by NorthStar Alarm Services, LLC (“NorthStar”) on January 2, 2019. In its petition, Yodel’s petition says that it provided services to NorthStar and “is now subject to the same litigation exposure,” that motivated NorthStar’s petition. After stating their support for NorthStar’s arguments, the petition largely focuses on the historical interpretation of Section 227(b)(1)(B). Yodel’s petition cites numerous FCC documents, the Ninth Circuit’s 1995 decision in Moser v. F.C.C., and a now-overturned 2009 Federal Trade Commission (FTC) holding that all distinguish between calls using soundboard technology with a live agent and “entirely prerecorded and fully automated,” calls that fall under the scope of Section 227(b)(1)(B). When the FTC reversed its holding that soundboard technology was permissible, the petition explains, Yodel “timely responded to the FTC’s change in position as it related to the Telemarketing Sales Rule.” The effective date of the FTC’s holding, May 12, 2017, serves as the basis for the petition’s alternative request: a retroactive waiver for any violation prior to that date.
- On September 19, 2019, the Consumer and Governmental Affairs Bureau released a public notice (DA 19-931) seeking comment on the petition. Comments were due October 21, 2019, and reply comments were due November 4, 2019.
2. Alarm Industry Communications Committee (Filed July 8, 2019)
- The Alarm Industry Communications Committee (“AICC”) filed a petition for clarification or for reconsideration of the FCC’s June 7, 2019 call blocking declaratory ruling concerning three issues. First, AAIC asks the Commission to clarify that carriers must notify consumers of their inclusion in an opt-out call-blocking program both on a carrier’s website and via direct notification, such as texts, email, or inserts in customer bills. Second, AAIC asks the FCC to clarify that calls from alarm companies are the types of emergency communications that carriers must avoid blocking. Third, AICC asks the FCC to clarify that carriers must implement any call-blocking programs in a non-discriminatory fashion with respect to alarm companies that are not affiliated with the carriers.
3. NorthStar Alarm Services, LLC (filed January 2, 2019)
- NorthStar is requesting a declaratory ruling that the use of soundboard technology, which allows a live operator to select one or more recorded message “snippets” during live calls with recipients, does not constitute the use of an artificial or prerecorded voice that delivers a message under the TCPA. The petition argues that soundboard technology falls outside the scope of the TCPA because unlike traditional pre-recorded voice calls/messages “that play from start to finish without any intervention by a human operator,” “soundboard technology requires the careful attention of a well-trained operator who responds with appropriate audio snippets to a call recipient, creating a unique, individualized experience.” NorthStar requests a declaratory ruling that would apply generally to soundboard technology, or alternatively, a ruling that “[t]he use of soundboard technology on a one-to-one basis, whereby the soundboard agent conducts only one call with one individual at a single time, does not constitute the use of an artificial or prerecorded voice that delivers a message under the TCPA.”
- At the time NorthStar filed its petition, it was fighting a TCPA lawsuit related to calls placed using soundboard technology.
- On February 12, 2019, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 19-74) seeking comment on the petition. Comments were due on March 15, 2019 and reply comments were due on March 29, 2019.
4. P2P Alliance (filed May 3, 2018)
- The P2P Alliance has asked the FCC to clarify that “peer-to-peer” text messaging, a “communications technology that allows organizations to communicate with their students, employees, supporters, and customers through individual, personalized text messages,” is not subject to the TCPA. In support of its request, the P2P Alliance argues that (1) P2P messaging does not involve the use of an ATDS, (2) “messages pertaining to non-political matters involve communications between two parties with a previous relationship, and the recipient has indicated his or her consent to receive such messages by providing a contact number to which such messages are delivered,” and (3) “P2P text messages of a political nature are manually dialed by an individual and do include not ‘telephone solicitations’ as defined by the TCPA.”
- On May 23, 2018, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 18-547) seeking comment on the petition. Comments were due on June 22, 2018 and replies were due on July 9, 2018.
5. 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.”
- On May 23, 2018, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 18-548) seeking comment on the petition. Comments were due on June 22, 2018 and replies were due on July 9, 2018.
6. 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.
- At the time Mr. Bank filed his petition, he was 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.
7. 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).
- At the time Mr. Lucas filed his petition, he was involved in a lawsuit in which he alleged 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.
8. 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.