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.
Number of Petitions Pending
New Petitions Filed
28 petitions pending
1 petition for reconsideration of the rules to implement the government debt collection exemption
1 application for review of the decision to deny a request for an exemption of the prior-express-consent requirement of the TCPA for “mortgage servicing calls”
1 request for reconsideration of the 10/14/16 waiver of the prior express written consent rule granted to 7 petitioners
10 applications for review of fax waiver orders under the Anda progeny (these applications for review were not addressed in the Nov. 14, 2018 Bureau order)
Best Doctors, Inc., Petition for Declaratory Ruling (filed Dec. 14, 2018) (Best Doctors, Inc. 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)
Advanced Methods to Target and Eliminate Unlawful Robocalls, Second Report and Order (FCC 18-177, rel. Dec. 13, 2018) (FCC creates a single, comprehensive database intended to enable callers to verify if a number has been reassigned before calling the number and adopts a limited safe harbor for database errors)
Petition for Declaratory Ruling on Regulatory Status of Wireless Messaging Service, Declaratory Ruling (FCC 18-178, rel. Dec. 13, 2018) (FCC rules that SMS and MMS text messaging services are Title I information services and are not “commercial mobile services”)
Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Order (DA 18-1159, rel. Nov. 14, 2018) (Acting on remand from Bais Yaakov v. FCC, the Consumer and Governmental Affairs Bureau eliminates the FCC rule that required opt-out consent language on faxes sent with prior express consent (aka “solicited faxes”). 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 granted by the Bureau.)
New and Noteworthy
In a Prelude to its TCPA Ruling, the FCC Votes to Create a Database to Identify Reassigned Numbers
With speculation increasing that the FCC will consider a remand order from ACA International v. FCC in January 2019, the FCC took a related step to reduce misdirected calls. At the December Open Meeting, the FCC approved a Second Report and Order (“R&O”) to create a single, nationwide database for reporting number reassignments that will allow callers to verify whether a phone number was permanently disconnected before calling the number. The database will contain the date of the most recent “permanent disconnection” of a number. (Permanent disconnection refers to when a subscriber permanently relinquishes a number, or the provider permanently reverses the assignment of the number to a particular subscriber and disassociates that subscriber with active service to that number.) Parties would query the database with two pieces of information: the number to be checked and a date the party knows the subscriber last had the number. This latter date could be the date consent was obtained, the date the subscriber last accepted a call at the number, or some other date that the party contends is associated with the subscriber. Upon a query, the database will respond with a “yes,” “no,” or “no data” response indicating whether the number has been reassigned after that date.
The FCC modified its tentative decision to defer issues of TCPA liability for users of the database, and instead adopted a limited safe harbor against TCPA liability for “database errors.” Under the FCC’s safe harbor, a caller will not have liability under the TCPA if the caller previously obtained prior express consent of the called party, queries the database and the database erroneously returns a response of “no” (i.e., the number had not been permanently disconnected).
The FCC referred technical design issues relating to the database to an FCC advisory committee, with a deadline of June 2019. The FCC expects to bid the contract thereafter and have the database running “as soon as reasonably practicable” thereafter. The database is not expected to be operational before the end of 2019.
Citing a Desire to Promote Spam-Protection Measures, FCC Classifies Wireless Messaging as an Information Service
At the Federal Communications Commission’s (“FCC”) December Open Meeting, commissioners approved a Declaratory Ruling (“Ruling”) that classifies native forms of wireless messaging, short message service (“SMS”) and multimedia messaging service (“MMS”), as information services, and declares that such services are free from regulation as commercial mobile services. The FCC’s objective with the Ruling is to remove uncertainty for messaging service providers about applicable regulations and also enable wireless messaging providers to adopt more rigid efforts to block spam and spoofing messages. This action comes only a few months after Commissioner Mike O’Rielly publicly called for the FCC to finally act on the pending classification proceeding. The Commission also stated its intention that “successor protocols” (such as RCS messaging) would also be information services, provided they share similar characteristics. The ruling addresses petitions before the FCC dating back to 2008.
Consumer Groups Clarify Position on Whether a Smartphone Can Be an ATDS
On November 13, 2018, the National Consumer Law Center (NCLC) and five other consumer groups filed an ex parte letter in the Commission’s ACA International remand docket regarding the classification of smartphones under the TCPA. The consumer groups stated that they “agree with [the FCC’s] unstated assumption” that the Ninth Circuit’s Marks decision would conflict with ACA International if “ordinary smartphones” met the definition of an ATDS, but argued that smartphones would not meet that definition unless modified. The consumer groups contend instead that smartphones “as manufactured and delivered to consumers” do not have the present capacity to dial multiple numbers simultaneously or to send mass texts, and therefore, if the “present capacity” is the test, an ordinary smartphone would not be an ATDS. The consumer groups argue that smartphones should be considered to meet the definition only if they have been modified or connected to a web-based mechanism to send mass texts.
This letter was filed in response to the Commission’s request for comment on the implications of the Marks v. Crunch San Diego, LLC decision by the Ninth Circuit Court of Appeals and in anticipation of the FCC’s upcoming remand order in ACA International v. FCC. The FCC is expected to address the definition of an ATDS at its January 30, 2019 Open Meeting.
Awaiting Decision (Items on "Circulation")
Other Pending Petitions
1. Life Insurance Direct Marketing Association et al. (filed June 18, 2018)
Petitions are grouped by their primary subject matter.
Petitions Relating to "Prior Express Written Consent"
2. Credit Union National Association (filed September 29, 2017)
- 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. ViSalus, Inc. (filed Sept. 14, 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. Cunningham and Moskowitz (filed Jan. 22, 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. bebe stores, inc. (filed November 18, 2016)
- 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.
- 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. Mobile Media Technologies (filed March 7, 2016)
6. 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. American Bankers Association (filed August 8, 2015)
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.
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)
2. Inovalon (filed February 19, 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.
3. Amerifactors Financial Group, LLC (filed July 13, 2017)
- 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.
4. M3 USA Corporation (filed March 20, 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.
5. Cynosure, Inc. (filed September 30, 2016; withdrawn and refiled on October 26, 2016)
- 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.
6. RingCentral, Inc. (filed July 6, 2016)
- Cynosure has asked the Commission to initiate a rulemaking proceeding to repeal the requirement to include opt-out language on solicited fax advertisements as well as a declaratory ruling that the opt-out notice requirement does not apply to solicited fax ads. Cynosure argues that the FCC exceeded its authority under the TCPA in adopting the opt-out notice requirement because the TCPA only applies to unsolicited faxes. It further argues that the rule violates the First Amendment.
- Cynosure, like many other petitioners, is currently fighting a TCPA class action suit related to faxes sent on its behalf that purportedly violate the statute.
- On October 28, 2016, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 16-1231) seeking comment on the petition. Comments were due on November 14, 2016 and replies were due on November 21, 2016.
6. Joseph T. Ryerson & Son, Inc. (filed November 4, 2015)
- 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.
Special Note Regarding “Solicited Faxes”
Anda, Inc. Retroactive Waiver.
- 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.
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.
1. IHS Markit Ltd. – Petition for Emergency Declaratory Ruling (filed September 21, 2018)
2. P2P Alliance (filed May 3, 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. Federal Housing Finance Authority (filed November 15, 2017)
- 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. Insights Association and American Association for Public Opinion Research (filed Oct. 30, 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. Great Lakes Higher Education Corp. et al. (filed December 16, 2016)
- 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.
- Great Lakes Higher Education Corp., Navient Corp., Nelnet, Inc., the Pennsylvania Higher Education Assistance Agency, and the Student Loan Servicing Alliance seek reconsideration of the rules adopted by the FCC on August 11, 2016 to implement the government debt collection call exemption to the TCPA adopted as part of the Bipartisan Budget Agreement Act of 2015. In particular, the parties challenge the Commission's decision to impose a three-call-per-month limit, as well as the limitation of calls solely to the debtor, as being unsupported by the statute and contrary to Congress's intent in adopting the exemption. They also generally challenge the FCC's interpretation of its rulemaking authority as impermissibly broad.
6. Professional Services Council (filed August 4, 2016)
- Professional Services Council seeks reconsideration of a portion of the FCC’s Broadnet declaratory ruling released on July 5, 2016, which found that federal government contractors are not subject to the TCPA. Specifically, the PSC petition asks the Commission to modify the declaratory ruling in order to “provide TCPA relief to government contractors acting on behalf of the federal government, in accordance with their contract’s terms and the government's directives, without regard to whether a common-law agency relationship exists.” The petition asserts that by basing the exemption on common-law agency principles, the Commission may have inadvertently narrowed the scope of TCPA relief available to government contractors because, according to PSC, “government contracts often contain language that expressly states the government contractor is not in an agency relationship with the government.”
- On August 15, 2016, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 16-924) seeking comment on the petition. Comments were due on September 14, 2016 and replies were due on September 29, 2016.
7. Anthem, Inc.; Blue Cross Blue Shield Association; Wellcare Health Plans, Inc.; American Association of Healthcare Administrative Management (filed July 28, 2016)
- The joint petitioners seek clarification from the FCC regarding certain statements in the 2015 Omnibus TCPA Order related to non-telemarketing healthcare calls. Specifically, the petitioners have asked the FCC to issue a declaratory ruling and/or clarify two items: (1) that the provision of a phone number to a “covered entity” or “business associate” (as those terms are defined under HIPAA) constitutes prior express consent for non-telemarketing calls allowed under HIPAA for the purposes of treatment, payment, or health care operations; and (2) that the term “healthcare provider” in paragraphs 141 and 147 of the 2015 Omnibus TCPA Order encompasses “HIPAA covered entities and business associates.” The petitioners assert that these clarifications are necessary to harmonize the TCPA and HIPAA, and point out that the FCC has previously looked to HIPAA for guidance on how to interpret healthcare calls under the TCPA.
- On August 19, 2016, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 16-947) seeking comment on the petition. Comments were due on September 19, 2016 and replies are due on October 4, 2016.
8. National Consumer Law Center (filed July 26, 2016)
- The NCLC, together with a number of legal aid programs and public interest organizations, seeks a stay and reconsideration of the FCC’s July 5, 2016 Declaratory Ruling that grants a TCPA exemption for calls by government contractors. In its petition, the NCLC argues that the FCC misinterpreted both the TCPA and the Supreme Court’s ruling in Campbell-Ewald v. Gomez when it determined that government contractors do not fall within the definition of a “person” under the TCPA, and therefore are not subject to the Act’s restrictions on auto-dialed calls. It further asserts that “[i]f the Commission does not reconsider and change its ruling in this proceeding, tens of millions of Americans will find their cell phones flooded with unwanted robocalls from federal contractors with no means of stopping these calls and no remedies to enforce their requests to stop these calls.”
- On August 1, 2016, the Consumer & Governmental Affairs Bureau released two Public Notices (DA 16-878 and DA 16-879) seeking comment on the petition. Comments on the NCLC’s request for stay of the Broadnet order were due on August 11, 2016, and replies were due on August 16, 2016. Comments on NCLC’s request for reconsideration of the Broadnet order were due on August 31, 2016 and replies were due on September 15, 2016.
9. 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.
10. 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.
11. Anthem, Inc. (filed June 10, 2015)
12. Vincent Lucas (filed June 18, 2014)
- 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. Acurian, Inc. (filed Feb. 5, 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.
- 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.