1. New and Noteworthy
  2.  Awaiting Decision (Items on "Circulation")
  3. Other Pending Petitions
  1. Petitions Relating to "Prior Express Written Consent"
  2. Petitions Relating to the Definition of an Autodialer
  3. Petitions Relating to "Junk" Faxing Rules
  4. Other Petitions

Kelley Drye’s Telecom Practice Group presents this comprehensive 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.  The tracker below briefly summarizes each petition and the issues presented in them.

Click here to view the table.

New and Noteworthy:

  • On June 4, 2014, representatives from the National Consumer Law Center (NCLC) met with FCC staff to discuss TCPA issues and several of the TCPA petitions pending before the Commission.  The arguments made by the NCLC during these meetings include the following: (1) predictive dialers cause harm to wireless customers; (2) the Commission should not amend the definition of an autodialer; (3) the entities that have filed petitions for TCPA clarification exaggerate the impact of consumer litigation on legitimate business marketing efforts; (4) consumers need to be protected from debt collectors, including student loan servicers; (5) if the Commission changes the definition of an autodialer, the impact on consumers who use cell phones would be “catastrophic”; (6) a company should not necessarily be excluded from TCPA liability simply because a phone number has been reassigned; (7) the FCC should coordinate with the CFPB to determine the appropriate number of permissible calls to a cell phone, even if consent is provided; and (8) revocation of consent should be simple and available on every cell phone call.
  • Dialing Services, LLC.  (NAL released May 8, 2014).  The Commission proposed a forfeiture of $2,944,000 against Dialing Services, a company that transmits prerecorded messages on behalf of customers.  The FCC concluded that Dialing Services was liable for “making” or “initiating” prerecorded message calls to wireless phones.  The FCC proposes to hold Dialing Services liable as the service provider, even though calls are placed at the request of a customer.  The FCC proposed a fine based on 184 calls, with a proposed forfeiture of $16,000 for each unauthorized call.  Dialing Services has 30 days to contest or pay the proposed forfeiture.

Awaiting Decision (Items on “Circulation”)

1. Anda, Inc. (filed May 14, 2012; circulated on May 13, 2013) (opt-out notices)

  • This petition seeks clarification that 47 U.S.C. § 227(b) “was not the statutory basis for the Commission’s rule requiring an opt-out notice on fax advertisements sent with the recipient’s express prior consent.”  The petition argues that this statutory provision applies only in instances in which the recipient is receiving faxes without providing prior express written consent or in the absence of an “existing business relationship.”  Anda claims that the FCC’s failure to cite the specific statutory provision upon which it relied when it established the opt-out requirement is causing confusion in the courts and subjecting marketers to “crippling” lawsuits and “crushing liability.”  Additionally, the petition asserts that using Section 227(b) to establish the opt-out requirement would be contrary to legislative intent.

2. Communications Innovators (filed June 7, 2012; circulated on May 13, 2013) (ATDS definition)

  • This petition seeks clarification of the definition of an “autodialer.”  CI is requesting a ruling that predictive dialers that “(1) are not used for telemarketing purposes and (2) do not have the current ability to generate and dial random or sequential numbers, are not” autodialers under the TCPA. 

Other Pending Petitions

Petitions are grouped by their primary subject matter.

Petitions Relating to “Prior Express Written Consent”

1. Stage Stores, Inc. (filed June 3, 2014)

  • Stores seeks a declaratory ruling to establish that there is “an exception to liability under the TCPA for autodialed marketing calls, including text messages, made to reassigned wireless numbers where the caller had obtained prior express consent to make such marketing calls, but the wireless number has been reassigned without notice to the caller, provided the caller updates its records and ceases calls to that wireless number within a reasonable time period after being informed that the number has been reassigned.”

2. United Healthcare Services, Inc. (filed Jan. 16, 2014)

  • United seeks a declaratory ruling that holds that parties are not liable under the TCPA for “informational, non-telemarketing calls, especially healthcare-related calls, to telephone numbers that have been reassigned without the caller’s knowledge – as long as the caller previously obtained ‘prior express consent’ to place calls to that specific telephone number.”

3.  Retail Industry Leaders Association (filed Dec. 30, 2013)

  • RILA requests clarification from the Commission that the rules requiring prior express written consent do not apply to “one-time responses to consumer-initiated requests for text offers.”  RILA asserts that a text message sent to a consumer in response to a request for an “offer” (i.e. the consumer texts the word “offer” to 12-345 to receive 20% off her next purchase) does not qualify as “initiating” a call under TCPA rules because the retailer is not physically placing the call, but rather “the retailer’s role is limited to responding to the consumer’s specific request.” 
  • RILA also argues that the response text message is not an “advertisement” because the actual text message is not advertising anything.  It is simply responding to the consumer’s text message seeking an offer that may have been advertised elsewhere (i.e. newspaper, billboard, magazine).  RILA posits that “one-time only messages sent immediately in response to a consumer-initiated request that contain only the specific requested offer, are more akin to informational texts, which the Commission has already explicitly stated are not required to comply with the new TCPA prior express written consent rules.”

4. Coalition of Mobile Engagement Providers (filed Oct. 17, 2013)

  • The Coalition seeks clarification from the Commission that the new requirements for obtaining prior express written consent under the TCPA will not be applied to previously acquired written consent that was consistent at the time the consent was acquired.  The petition argues that this interpretation serves three main purposes: (1) it will eliminate consumer confusion, (2) it will mitigate the unnecessary burden placed on marketers to obtain consent from consumers who previously provided it, and (3) it will limit potential legal actions by those who might seek to exploit the new rules.

5. The Direct Marketing Association (filed Oct. 17, 2013)

  • DMA is seeking forbearance from the enforcement of certain provisions of the rules pertaining to prior express written consent.  Specifically, DMA has asked the Commission to forbear with respect to existing written agreements from enforcing “that portion of the new rule that requires a disclosure that sales are not conditioned on executing the written agreement and that the seller will use an autodialer.”
  • DMA does not object to application of the new rules going forward, but argues that “there is no valid reason in law or policy to subject marketers to exposure to lawsuits and regulatory sanctions for perfectly valid written consent agreements obtained before the effective date of the rule, based on disclosure requirements which add nothing to the purpose of the written consent agreement.”

Petitions Relating to the Definition of an Autodialer

1Milton H. Fried, Jr. and Richard Evans (filed May 27, 2014)

  • The petitioners have asked the Commission to issue a declaratory ruling that the combined use of multiple pieces of equipment by several defendants to a pending TCPA lawsuit to send out text message advertisements to the petitioners constituted an ATDS.  The petitioners are the plaintiffs in the action pending against the defendants.  The judge in the federal case referred the auto-dialer issue to the primary jurisdiction of the FCC.  This petition is interesting because it seeks an opposite decision than most other petitioners have asked for with respect to the definition of an auto-dialer.  

2. TextMe, Inc. (filed Mar. 18, 2014)

  • TextMe is seeking a declaratory ruling from the FCC that “that the term “capacity” as used in the statutory definition of an ATDS under § 227(a)(1) of the TCPA encompasses only equipment that, at the time of use, could in fact perform the functions described in the TCPA without human intervention and without first being technologically altered.”
  • TextMe provides a service that allows users to send and receive non-commercial text message.  One feature of the service allows users to invite individual contacts in their devices to use the service as well.  In addition to its ATDS request, TextMe is requesting that the Commission clarify that TextMe does not “make” calls or send text messages pursuant to the TCPA; rather, users do. Alternatively, TextMe requests that the Commission clarify that third party consent obtained through an intermediary satisfies the TCPA’s ‘prior express consent’ requirement for non-commercial, informational calls or text messages to wireless numbers.”
  • On April 7, the Consumer & Governmental Affairs Bureau released a Public Notice seeking comment on the petition.  Comments were due on May 5 and replies are due on May 22.

3. ACA International (filed Jan. 31, 2014)

  • In its petition, ACA makes four specific requests of the FCC: “(1) confirm that not all predictive dialers are categorically automatic telephone dialing systems (‘ATDS’ or ‘autodialers’); (2) confirm that ‘capacity’ under the TCPA means present ability [to store, produce or dial phone numbers]; (3) clarify that prior express consent attaches to the person incurring a debt, and not the specific telephone number provided by the debtor at the time a debt was incurred; and (4) establish a safe harbor for autodialed ‘wrong number’ non-telemarketing calls to wireless numbers.”

4. Glide Talk, Ltd. (filed Oct. 28, 2013)

  • Glide Talk is seeking the following declaratory ruling from the Commission: “(a) the TCPA's automatic telephone dialing system restriction applies only to equipment that can, at the time of the call, be used to store or generate sequential or randomized telephone numbers, (b) software and app providers that enable consumers to choose to send invitational text messages do not "make" calls under the TCPA merely by facilitating the ability of their users to send the text messages, and (c) in the event the Commission considers the provider to ‘make’ the call, third-party consent is sufficient for non-telemarketing, user-initiated invitational text messages to wireless numbers.”
  • Glide Talk created an app that allows users to send video text messages.  The service does not run on SMS or MMS, but allows users to invite friends to join via text message.  Glide Talk is currently a defendant in a TCPA class action that alleges the company sent unauthorized text messages through its app service.  Glide Talk argues that its service does not violate the TCPA and that the Commission should issue such a finding so that other “innovators” are not forced to defend themselves in TCPA actions.

5. Professional Association for Customer Engagement (PACE) (filed Oct. 18, 2013)

  • PACE seeks a declaratory ruling that in order to qualify as an ATDS, a system “has the capacity to, inter alia, dial numbers without human intervention … and a system’s ‘capacity’ is limited to what it is capable of doing, without further modification, at the time the call is placed.”  PACE argues such rulings will provide clarification that will protect marketers from the onslaught of TCPA litigation which has arisen in recent years, while simultaneously serving the purpose of the Act, which is to protect consumers from unwanted telemarketing calls.

6. YouMail, Inc. (filed Apr. 19, 2013)

  • This petition seeks a declaratory ruling that would apply to YouMail specifically.  YouMail asked the Commission to declare that YouMail was not violating the TCPA by improperly utilizing an autodialing system.  The petitions asks the Commission to find that YouMail’s software is not an ATDS because it “lacks the current capacity to ‘store or produce numbers to be called using a random or sequential number generator.’”  In the petition, YouMail explains that as part of its “virtual receptionist” service, it offers an option for a subscriber who has received a voicemail through the service to send an auto-reply to the number from which the voicemail was received.  The petition argues that YouMail’s system, in its current capacity, does not store and produce telephone numbers to be called using a random sequential number generator, and therefore does not fall within the definition of an ATDS. 
  • YouMail requested expedited consideration of its petition because it was involved in litigation in this issue at the time of the petition.

7. Revolution Messaging, LLC (filed Jan. 19, 2012)

  • Revolution Messaging petitioned the Commission to clarify that the TCPA and related FCC rules apply “to users of Internet-to-phone text messaging technology and similar technologies involving the storage and automatic dialing of wireless telephone numbers.”  The company asserted that a Commission ruling would clarify “that Internet-to-phone text messaging technology is a type of ‘automatic telephone dialing system’ under the Commission’s rules and is therefore subject to the prohibitions in the TCPA and the Commission’s related rules.”

Petitions Relating to “Junk” Faxing Rules

Since January 2013, the Commission has received numerous petitions related to the “opt-out” language requirement for faxes sent with the recipient’s permission.  The FCC released a public notice on January 31, 2014 seeking comment on many of these petitions.  On April 25, 2014, the Commission sought comment on an additional three petitions.  In this section, an asterisk (*) denotes that the Commission sought comment on that petition through the January 31 public notice and a pound sign (#) denotes that the Commission sought comment on that petition through the April 25 public notice.

1. Stericycle, Inc. (filed June 6, 2014)

  • Stericycle is a defendant to a TCPA class action for an alleged junk fax, and has asked the Commission to issue one of the following forms of relief: (1) declare that the opt-out notice provisions do not apply to solicited faxes; (2) declare that the TCPA is not the basis for the opt-out notice requirement; or (3) grant Stericycle a retroactive waiver of the opt-out notice requirement.

2. Cannon & Associates LLC d/b/a Polaris Group (filed May 15, 2014)

  • Polaris seeks a declaratory ruling that the opt-out notice requirements of the FCC’s rules do not apply to fax advertisements sent with the consent of the recipient.  Polaris also proposes 3 alternatives: (1) clarify that the opt-out requirements “are satisfied when a solicited fax includes an opt-out notice that substantially complies with the requirements of that rule section and demonstrably allows the recipient of the fax to successfully opt out”; (2) clarify that the TCPA is not the basis for the opt-out requirement; or (3) grant Polaris a retroactive waiver of the opt-out notice requirement.

3. S&S Firestone, Inc. (filed May 7, 2014)

  • The petition seeks a declaratory ruling that Section 64.1200(a)(4)(iv) of the Commission’s rules does not require “opt-out” notices for “solicited faxes.”  Alternatively, the petition seeks a declaratory ruling that this requirement does not stem from Section 227 of the Commissions Act.  Finally, the petition requests a retroactive waiver of the rule requiring “opt-out” language.

4. Best Buy Builders, Inc. (filed Apr. 7, 2014)#

  • The petition seeks a declaratory ruling that Section 64.1200(a)(4)(iv) of the Commission’s rules does not require “opt-out” notices for “solicited faxes.”  Alternatively, the petition seeks a declaratory ruling that this requirement does not stem from Section 227 of the Commissions Act.  Finally, the petition requests a retroactive waiver of the rule requiring “opt-out” language.

5. Masimo Corporation (filed Apr. 1, 2014)#

  • The petition asks the Commission to confirm that “substantially compliant” opt-out notices will satisfy the requirements of Section 64.1200(a)(4)(iv) Commission rules.  Alternatively, the petition requests a retroactive waiver of the rule requiring “opt-out” language.

6. Magna Chek, Inc. (filed Mar. 28, 2014)#

  • The petition seeks a declaratory ruling that the Commission lacked statutory authority to enact the “opt-out” language requirements or that the TCPA was not the basis for the rule.  Additionally, the petition asks the Commission to confirm that “substantially compliant” opt-out notices will satisfy the requirements of Commission rules.  Alternatively, the petition requests a retroactive waiver of the rule requiring “opt-out” language.

7.  Crown Mortgage Company (filed Feb. 21, 2014)

  • Crown seeks a ruling from the Commission that the “so-called ‘opt out’ language" does not apply to fax advertisements sent with the prior express consent or permission of the recipient.  In the alternative, Crown has asked the Commission to issue a retroactive waiver for its “unintentional” transmission of faxes that did not contain opt-out language.

8. TechHealth, Inc. (filed Jan. 6, 2014)*

  • The petition seeks a declaratory ruling that the Commission lacked statutory authority to enact the “opt-out” language requirements or that the TCPA was not the basis for the rule.  Additionally, the petition requests a retroactive waiver of the rule requiring “opt-out” language.

9. Prime Health Services, Inc. (filed Dec. 17, 2013)*

  • The petition seeks a declaratory ruling that the Commission lacked statutory authority to enact the “opt-out” language requirements or that the TCPA was not the basis for the rule.  Additionally, the petition requests a retroactive waiver of the rule requiring “opt-out” language.

10. Purdue Pharma L.P. (filed Dec. 12, 2013)*

  • The petition seeks a declaratory ruling that the Commission lacked statutory authority to enact the “opt-out” language requirements or that the TCPA was not the basis for the rule.  Additionally, the petition requests a retroactive waiver of the rule requiring “opt-out” language.  Finally, the petition asks the Commission to confirm that “substantially compliant” opt-out notices will satisfy the requirements of Commission rules.

11. All Granite & Marble Corp. (filed Oct. 28, 2013)*

  • The petition seeks a declaratory ruling that the Commission lacked statutory authority to enact the “opt-out” language requirements or that the TCPA was not the basis for the rule.  Additionally, the petition requests a retroactive waiver of the rule requiring “opt-out” language.

12. Futuredontics, Inc. (filed Oct. 18, 2013)*

  • The petition seeks a declaratory ruling that the Commission lacked statutory authority to enact the “opt-out” language requirements or that the TCPA was not the basis for the rule.  Additionally, the petition requests a retroactive waiver of the rule requiring “opt-out” language.

13. Douglas Paul Walburg and Richie Enterprises, LLC (filed Aug. 19, 2013)*

  • The petition seeks a declaratory ruling that the Commission lacked statutory authority to enact the “opt-out” language requirements or that the TCPA was not the basis for the rule.  Additionally, the petition requests a retroactive waiver of the rule requiring “opt-out” language.  The petitioners argue that the waiver is justified in order to prevent creation of an obligation that would be “inequitable, unduly burdensome, and contrary to the public interest.”

14. Gilead Sciences, Inc. and Gilead Palo Alto, Inc. (filed Aug. 9, 2013)*

  • The petition seeks a declaratory ruling that the Commission lacked statutory authority to enact the “opt-out” language requirements or that the TCPA was not the basis for the rule.  Additionally, the petition requests a retroactive waiver of the rule requiring “opt-out” language.  The company asserts that the waiver would prevent potential plaintiffs from abusing rights created under the TCPA. 

15. Staples, Inc. and Quill Corporation (filed July 19, 2013)*

  • The petition seeks a declaratory ruling that the Commission lacked statutory authority to enact the “opt-out” language requirements or that the TCPA was not the basis for the rule.  The petition also requests a retroactive waiver of the rule requiring “opt-out” language.  Finally, the petition argues that the requirement violates the First Amendment and should be repealed because it reflects “poor policy that unfairly threatens companies and individuals with massive liability for the transmission of solicited fax ads.”

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

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

Other Petitions

1.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.  

2. National Grid USA, Inc. (filed Feb. 18, 2014)

  • National Grid seeks clarification that providing a company’s d/b/a that is registered with the state corporation commission at the beginning of a pre-recorded call is sufficient to satisfy FCC rules for identifying the calling party.  National Grid argues that many consumers will likely recognize a company’s d/b/a rather than the legal name, and requiring the caller to provide both names would unnecessarily prolong the call.  In the alternative, National Grid seeks “a waiver that would allow the use of a d/b/a name registered with a state corporation commission when placing prerecorded calls.”

3.  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.