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 Initiates Rulemaking on Spoofed Calls and a New Definition for “Text Messages” At the FCC’s open meeting on February 14, 2019, the five FCC commissioners voted unanimously to issue a Notice of Proposed Rulemaking (NPRM) to modify the Commission’s Truth-in-Caller-ID rules pursuant to amendments to the Communications Act adopted by Congress as part of the RAY BAUM’s Act of 2017. In particular, the FCC proposes to extend its caller ID spoofing rules to apply to communications originating from outside the United States, and expand the scope of “covered communications” under those rules to include alternative voice and text messaging services. Additionally, the FCC proposes to amend several definitions under its rules, including to re-define “text message” as “a message consisting of text, images, sounds, or other information that is transmitted to or from a device that is identified as the receiving or transmitting device by means of a 10-digit telephone number or N11 service code.” The proposed rule expressly includes SMS and MMS messages in this definition, and expressly excludes “(i) a real-time, two-way voice or video communication; or (ii) a message sent over an IP-enabled messaging service to another user of the same messaging service, except [an SMS or MMS message].” In her statement accompanying the NPRM, Commissioner Jessica Rosenworcel was critical of the FCC’s pace of enforcement on robocalls and called for the FCC to create a Robocall Division in the Enforcement Bureau. Comments on the NPRM will be due 30 days after it is published in the Federal Register, and reply comments will be due after an additional 30 days. FCC Issues Staff Report on "Robocalling" On February 14, 2019, the FCC’s Consumer and Government Affairs Bureau issued a staff report on illegal robocalls which highlighted ongoing FCC and industry-led initiatives on the issue, including the FCC’s 2017 call blocking order, its work towards deploying a reassigned number database, recent enforcement actions against alleged illegal robocallers, and the industry’s development of a call authentication framework. It also provides data on trends in call volume and consumer complaints (the report explains that “[t]he data generally combine all types of robocalls—illegal and legal, unwanted and wanted”). Finally, the report lists among its enforcement challenges that many illegal robocalls originate in foreign locations and on VoIP providers that lack regulatory contact information or lack accurate call records. The report was prepared in consultation with the Federal Trade Commission’s Bureau of Consumer Protection, which also works to address telemarketing issues, primarily through the Do Not Call Registry and the Telemarketing Sales Rule. A copy of the report is available here. Pallone Reintroduces Legislation to Refocus the TCPA on Robocalls On February 4, 2019, Representative Frank Pallone, Jr. (D-NJ) reintroduced the Stopping Bad Robocalls Act (H.R. 946), aimed at significantly revising the TCPA to be more focused on “robocalls.” Several of the provisions in the legislation, which mirror a bill Rep. Pallone introduced in June 2018, are specifically in response to the D.C. Circuit’s ruling in ACA International v. FCC. Specifically, the bill proposes to eliminate the current definition of “automatic telephone dialing system,” and instead impose a general prohibition on robocalls, defined as calls made “(A) using equipment that makes a series of calls to stored telephone numbers, including numbers stored on a list, or to telephone numbers produced using a random or sequential number generator, except for a call made using only equipment that the caller demonstrates requires substantial additional human intervention to dial or place a call after a human initiates the series of calls; or (B) using an artificial or prerecorded voice.” Next, the bill would allow consumers to revoke prior express consent for receiving calls at any time and in any reasonable manner. The legislation also proposes to require the FCC to adopt stringent consumer protection measures for any class of robocalls that the FCC exempts from the TCPA, and mandates the establishment of a reassigned number database. To bolster the FCC’s enforcement capability, the bill proposes to extend the statute of limitations to four years for callers violating the prohibitions on autodialed calls, robocalls, or spoofing, as well as allow the FCC to immediately go after bad actors, rather than requiring the FCC to wait for a second offense. It further provides that within a year after the date of enactment of the bill, the FCC would be required to prescribe consumer protections to require telephone service providers to authenticate the source of calls. Finally, the bill would require the FCC, after consultation with the Federal Trade Commission, to submit annual reports to Congress detailing the Commission’s progress in stopping robocalls. The bill is currently awaiting action by the House Energy and Commerce Committee, which Rep. Pallone chairs. Consumer Groups Ask FCC to Cast Wide Liability Net for Calls to Reassigned Numbers On January 28, 2019, a consortium of consumer advocates led by the National Consumer Law Center filed a letter with the FCC urging the Commission to adopt certain standards for liability for calls placed to reassigned numbers, both before and after the implementation of the FCC’s reassigned number database. In brief, the letter proposes a standard that places a detailed obligation on the calling party to demonstrate reasonable reliance that they had consent for the call. The consumer advocates first propose that the FCC keep its 2015 definition of the “called party” as the current subscriber to the phone (not the intended recipient). Second, for the time period before the reassigned number database is functional, they propose the following standard to absolve a caller from liability when the call reaches a different subscriber by mistake:
- The caller can demonstrate actual consent from the previous subscriber, and
- The caller stopped immediately after the person reached said to stop, and
- The caller can demonstrate either
- that it consulted a commercial database prior to calling the number; or
- it employed an easy-to-use and publicized method for the called party to request that calls stop; or
- it employed a regularly scheduled check of the validity of numbers and purged numbers that were invalid or “have not been verified after a certain period.”
This standard would apply to calls made over the next year or so, as well as past calls made to reassigned numbers. Once the reassigned number database is operational, the FCC-adopted safe harbor would become the standard, although the consumer advocates urge the FCC to “make clear that, in order to avoid liability, the caller must also prove that it had consent from the party it intended to call.” Finally, the consumer advocates ask the FCC to consider mandating an automated, interactive opt-out system for all prerecorded calls and for texts. The FCC has not responded to this request, but there is speculation that the Commission will take further action related to the TCPA and robocalls in the near future. 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. 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.
2. 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.
3. 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.
4. ViSalus, Inc. (filed Sept. 14, 2017)
- ViSalus, a multilevel marketing company that sells healthy lifestyle products, requests a retroactive waiver of the Commission’s prior express written consent rule adopted in 2012. ViSalus 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. ViSalus’s petition notes that the requested waiver would be for the period between October 16, 2013 and October 7, 2015.
- ViSalus, like many other petitioners, is currently fighting a TCPA class action suit related to telemarketing calls made to former customers.
- On June 14, 2018, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 18-620) seeking comment on the petition. Comments are due on July 16, 2018 and replies are due on July 30, 2018.
5. 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.
6. 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.
7. 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.
8. 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.
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 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)
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 are due on June 28, 2018.
Petitions Relating to "Junk" Faxing Rules
1. 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.
2. 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 are due on March 26, 2018 and replies are due on April 10, 2018.
3. 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 were due on August 17, 2017 and replies were due on September 1, 2017.
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, 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.
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.
- Ryerson, like many other petitioners, is currently 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. 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.”
- NorthStar, like many other petitioners, is currently 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 are due on March 15, 2019 and reply comments are due on March 29, 2019.
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 are due on November 20, 2018.
3. 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 are due on June 22, 2018 and replies were due on July 9, 2018.
4. 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.
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 are were on July 9, 2018.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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.