- New and Noteworthy
- Awaiting Decision (Items on "Circulation")
- Other Pending Petitions
Kelley Drye’s Communications 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.
New and Noteworthy:
- On November 28, 2014, the FCC’s Consumer and Governmental Affairs Bureau released a Public Notice asking for comments on the first round of waiver petitions filed by entities in response to the Commission’s October 30 order denying 24 petitions for declaratory ruling on the “opt-out” requirement for solicited fax advertisements, but granting a retroactive waiver to all the petitioners and allowing similarly situated parties to seek such a waiver because the requirement was previously unclear. Eight petitioners seek a retroactive waiver, asserting that they are similarly situated parties and are only asking for a waiver of the requirement with respect to fax advertisements that were “sent where prior express invitation or permission had been obtained from the recipient.” Like many of the original petitioners, the entities now asking for a waiver have in the past or are currently named defendants in TCPA-based class action litigation arising out of the FCC’s junk faxing rules. Comments on the petitions are due on December 12, 2014; replies are due on December 19, 2014.
- On November 24, 2014, the Consumer and Governmental Affairs Bureau issued a Public Notice seeking comment on a request from 39 state attorneys general asking for the Commission’s opinion about the legality of call-blocking technology. In the Public Notice, the Bureau notes that the Commission historically has prohibited call-blocking technology because of its potential harmful effects on competition within the telephone carrier industry, but asks “whether there are additional sources of Commission authority to prohibit call blocking, and [seeks comment on] the scope of that authority.” The notice recognizes, however, that the Commission has allowed call blocking technology in the past under certain limited circumstances, and seeks comment on whether such historical precedents could provide “a basis for addressing the questions raised by the Attorneys General.” The Bureau also asks commenters to address how the Commission should “reconcile the obligation of voice providers to complete calls with protecting consumers from unwanted calls under the [TCPA].” Finally, in order to inform its analysis of the inquiries posed by the Attorneys General, the Bureau seeks detailed comment on “what call-blocking technologies are available or under development in the United States and internationally.” Comments on the letter are due on December 24, 2014 and replies are due on January 8, 2015.
Awaiting Decision (Items on “Circulation”)
Other Pending Petitions
Petitions are grouped by their primary subject matter.
Petitions Relating to “Prior Express Written Consent”
1. American Association of Healthcare Administrative Management (filed October 21, 2014)
- This petition asks the FCC to “confirm that the provision of a telephone number by an individual to a healthcare provider constitutes ‘prior express consent’ for non-telemarketing, healthcare calls to that telephone number by or on behalf of the healthcare provider.” The petitioner also “asks the Commission to exempt from the TCPA’s ‘prior express consent’ requirement certain non-telemarketing, healthcare calls that are ‘not charged to the called party.’”
- The petition argues that restricting AAHAM members’ ability to make such healthcare-related calls would inhibit the delivery of critical, and often time-sensitive information, from a healthcare provider to a consumer.
2. American Bankers Association (filed October 14, 2014)
- The American Bankers Association has asked the FCC for an exemption from the Commission’s rules requiring the caller to obtain the prior express consent of the recipient before placing calls to a mobile phone for calls concerning the following: “(1) transactions and events that suggest a risk of fraud or identity theft; (2) possible breaches of the security of customers’ personal information; (3) steps consumers can take to prevent or remedy harm caused by data security breaches; and (4) actions needed to arrange for receipt of pending money transfers.”
- The petition argues that the types of calls for which an exemption is sought are primarily aimed at protecting consumers and that automated calls and text messages are the fastest ways to communicate essential non-telemarketing information. However, the volume of TCPA-based litigation based on prior express consent “has severely hampered the willingness of financial institutions to reach consumers’ mobile devices by automated means.”
3. Santander Consumer USA, Inc. (filed July 10, 2014)
- Santander asks the Commission to clarify and confirm that "prior express consent" to receive non-telemarketing calls and text messages to cellular telephones sent using an ATDS or pre-recorded message cannot be revoked. Alternatively, Santander seeks clarification that the caller can require the consumer to use one of the following specific methods to revoke consent: "(1) in writing at the mailing address designated by the caller; (2) by email to the email address designated by the caller; (3) by text message sent to the telephone number designated by the caller; (4) by facsimile to the telephone number designated by the caller; and/or (5) as prescribed by the Commission hereafter as needed to address emerging technology."
- Santander argues that the absence of provisions related to opt-out requirements for non-telemarketing calls (unlike fax advertisements or telemarketing calls) suggests that the TCPA regulations do not allow consumers to revoke consent for such calls. The company argues further that if consent revocation is permitted, allowing consumers to rely on verbal revocation to support TCPA class actions will be "crippling" for businesses.
- On August 1, 2014, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 14-1122) seeking comment on the petition. Comments are due onSeptember 2 and replies are due on September 15.
4. 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.”
- On July 9, 2014, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 14-974) seeking comment on the petition. Comments were due on August 8 and replies were due on August 25.
5. 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.”
6. 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.”
7. 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.
8. 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
1. Milton 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.
- On July 9, 2014, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 14-977) seeking comment on the petition. Comments were due on August 8 and replies were due on August 25.
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
Between January 2013 and October 2014, the Commission has received more than two dozen petitions related to the “opt-out” language requirement for faxes sent with the recipient’s permission. The following petitions pertaining to this requirement are still pending in the TCPA docket:
1. Francotyp-Postalia, Inc. (FP Mailing Solutions, Inc.) (filed October 14, 2014)
- The company is seeking one of the following from the FCC: (1) a declaratory ruling that the opt-out notice requirement does not apply to faxes sent with the prior express consent of the recipient; (2) clarification that the TCPA is not the statutory basis for the opt-out notice requirement; or (3) a retroactive waiver of the rule with respect to faxes that have been transmitted by FP with the prior express consent or permission of the recipients or their agents.
- FP is currently a defendant in a TCPA-based class action for unsolicited faxes.
2. Allscripts (several petitioners filed this collectively) (filed September 30, 2014)
- Four related entities filed a joint petition asking for a declaratory ruling that the opt-out requirements for faxes do not apply to solicited faxes. Alternatively, the petitioners have asked the FCC to clarify that the TCPA is not the basis for the opt-out requirement or grant a retroactive waiver of the opt-out rules.
- The Allscripts petitioners have been sued twice under the TCPA’s fax provisions. The petitioners settled one case for $1.9 million, and the other is still pending.
3. 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.
Prior to October 30, 2014, there were 24 additional petitions pending that sought clarification of the “opt-out” notice requirement in Section 64.1200(a)(4)(iv) of the FCC’s rules. Through an order (FCC 14-164), the Commission denied the petitions of all of the following entities (but granted all of them and any similarly situated party a retroactive waiver of the opt-out notice requirement): Anda, Inc.; Forest Pharmaceuticals, Inc.; Staples, Inc.; Gilead Sciences, Inc.; Douglas Walburg/Richie Enterprises, LLC; Futuredontics, Inc.; All Granite & Marble Corp.; Purdue Pharma; Prime Health Services, Inc.; TechHealth, Inc.; Crown Mortgage Company; Magna Chek, Inc.; Masimo Corp.; Best Buy Builders, Inc.; S&S Firestone, Inc.; Cannon & Associates d/b/a Polaris Group; Stericycle, Inc.; American CareSource Holdings, Inc.; Carfax, Inc.; Merck and Company, Inc.; UnitedHealth Group, Inc.; MedLearning, Inc. and Medica, Inc.; Unique Vacations, Inc.; and Power Liens, LLC.
Since the order was released, the following parties have sought retroactive waivers on this issue:
- Howmedica Osteontics Corporation, Stryker Corporation, Stryker Sales Corporation, and Stryker Biotech, LLC (Nov. 7, 2014) †
- Emery Wilson Corporation d/b/a Sterling Management Systems (Nov. 10, 2014) †
- ACT, Inc. (Nov. 12, 2014) †
- Amicus Mediation & Arbitration Group, Inc. (Nov. 13, 2014) †
- Alma Lasers, Inc. (Nov. 14, 2014) †
- Den-Mat Holdings, LLC (Nov. 20, 2014) †
- ASD Specialty Healthcare Inc., d/b/a Besse Medical, AmerisouceBergen Specialty Group, Inc., and AmericansourceBergen Corp. (Nov. 20, 2014) †
- Apex Energetics, Inc. (Nov. 21, 2014) †
- McKesson Corporation (Nov. 25, 2014)
On November 28, 2014, the Consumer and Governmental Affairs Bureau released a Public Notice (DA 14-1717) seeking comment eight of these petitions (noted with a †). Comments are due on December 12, 2014 and replies are due on December 19, 2014.
1. Bijora, Inc. (filed October 7, 2014)
- This petition was filed on behalf of a small business owner who was sued under the TCPA after sending out text message advertisements to individuals from whom the petitioner claims he had prior express consent. The petition seeks a declaratory ruling that Section 64.1200(a)(4)(iv) – the rule that requires opt-out notices on fax ads – does not apply to solicited text messages. Alternatively, he asks for a ruling that Section 227(b) is not the basis for the rule or for a retroactive waiver of the requirements under the rule.
- On November 7, 2014, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 14-1613) seeking comment on the petition. Comments are due onNovember 21, 2014 and replies are due on November 28, 2014.
2. RTI International (filed September 29, 2014)
- In its petition, RTI asks the FCC to “confirm that the TCPA does not restrict research survey calls made by or on behalf of the government.” RTI, a contractor that conducts research calls on behalf of several federal government agencies, argues that the United States government is exempt from the TCPA because it does not fall within the definition of “person” and the TCPA only prohibits calls by persons.
- RTI was recently sued after making calls as part of the National Intimate Partner and Sexual Violence Survey, and claims that if the FCC does not clarify that the government is exempt from TCPA restrictions, similar future litigation will “threaten the continued viability” of similar research surveys.
3. Consumer Bankers Association (filed September 19, 2014)
- CBA asks the Commission to clarify that a “called party” refers only to the “intended recipient” of the call. CBA notes the recent rise in TCPA litigation related to calls to phone numbers that have been reassigned, and asserts that “[i]f a caller is liable for obtaining the consent of persons, such as holders of reassigned numbers, whose identities cannot be ascertained before calls are placed, then complete compliance with the prior express consent requirement is impossible.” CBA further argues that a lack of guidance from the FCC has led to confusion and inconsistent rulings in the courts.
- The petition seems to be aimed mainly at protecting parties that make calls using ATDS.
4. Rubio's Restaurant, Inc. (filed August 11, 2014)
- Rubio’s Restaurant argues that “the Commission should issue a declaratory ruling (1) confirming callers who obtain ‘prior express consent’ from their employees are not liable under the TCPA for disseminating informational, non-telemarketing alerts, to telephone numbers that have been reassigned without the caller’s knowledge and (2) confirming that the TCPA does not apply to intra-company messaging systems which are never aimed at consumers and never intended to reach the public.”
- The Rubio’s chain has implemented a Remote Messaging service that allows employees to call a hotline to report food or safety issues. The message is then automatically forwarded to the phone numbers of the Quality Assistance staff. Rubio’s is now defending itself in a class action for sending one of these messages to a phone number that previously belonged to a Rubio’s employee but that had been reassigned without the company’s knowledge.
- On August 25, 2014, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 14-1228) seeking comment on the petition. Comments are due onSeptember 24 and replies are due on October 9.
5. National Employee Network Association (filed August 5, 2014)
- NENA is seeking a declaratory ruling that “in certain limited circumstances, a long-standing relationship with a federal agency logically implies consent to receive autodialed and prerecorded non-telemarketing calls and text messages under the TCPA, and calls can be made through a public or private intermediary or associated third party that ‘stands in the shoes’ of the federal government.”
- NENA is an organization comprised of providers of employment services for individuals that receive Social Security Disability Insurance or Supplemental Security Income. These providers are contracted by the Social Security Administration. Specifically, the petition asks that the Commission clarify that these providers are exempt from the autodialer or prerecorded call restrictions because they “have a mandate to contact program-eligible beneficiaries to inform them about their options for returning to self-supporting employment.”
6.VoAPPs, Inc. (filed August 1, 2014)
- VoAPPs provides a service that delivers voicemails to consumers’ mobile voicemail box without making a phone call. The company argues that because they do not make calls or deliver the voicemails in a way that would cause the recipients to incur charges for a call, the service should not be subject to the autodialer or prerecorded call provisions of the TCPA.
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).
- 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 and replies were due on August 25.
8. 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.”
9. 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.