TCPA Tracker-April 2016
April 13, 2016
Think a colleague might find this newsletter of interest? Please invite others to subscribe at the Kelley Drye publication Sign Up.

Recent News | FCC Petitions Tracker | Cases of Note | Articles and Events | The Team
Recent News

FCC Files Amicus Brief in Support of TCPA Plaintiff

On April 6, 2016, the FCC submitted an amicus curiae brief to the U.S. Court of Appeals for the Second Circuit in a TCPA case in which the Plaintiff/Appellant alleges that the Defendant/Appellee violated the TCPA by placing a prerecorded voice call (robocall) to a residential telephone line at his home (Bank v. Indep. Energy Grp., LLC et al., Case No. 15-2391 (2d Cir. Apr. 6, 2016)). The U.S. District Court for the Eastern District of New York granted summary judgment for the Defendant, finding that the TCPA did not apply because the Plaintiff used the residential line for business purposes. The Plaintiff appealed the decision, and subsequently filed a petition with the FCC seeking clarification on the issue of whether “the TCPA’s restrictions on artificial or prerecorded voice calls apply to calls made to a telephone line used for a home business so long as the line is registered with the service provider as a residential line.” The Plaintiff then asked the Court to stay its proceeding pending resolution of the FCC petition. In its brief, the FCC acknowledged that the Commission’s rules do not define the term “residential telephone line” and that it has not “resolved the question of whether, or under what circumstances, a telephone line in a home can support business activities and remain a ‘residential’ line.” As such, the Commission supported the Plaintiff’s request for a stay to allow the Commission an opportunity to address these issues.

     FCC Petitions Tracker
With the rise in TCPA litigation, numerous parties have sought clarification of the rules. Kelley Drye’s Communications group has compiled this comprehensive summary of the pending petitions.
Number of Petitions Pending New Petitions Filed Upcoming Comments Decisions Released
19 (+23 seeking a retroactive waiver of the opt-out requirement for fax ads) Todd C. Bank – TCPA clarification: residential telephone lines used for business purposes (3/7/16)

Educational Testing Service; Inter-Med, Inc. d/b/a Vista Dental Products; Legal & General America, Inc.; Jeana Fleitz, LLC d/b/a The X-Ray Lady – fax waiver petitions

Kohll’s Pharmacy & Homecare, Inc. – facsimile advertisements (3/24/16)

Mobile Media Technologies – procedures for revocation of consent – text messages (4/5/16)
Posture Pro, Inc.; Educational Testing Service; LKN Communications, Inc., d/b/a ACN, Inc. (fax waiver petitions)
(Replies due 4/15/16)

Papa Murphy's Holdings, Inc. and Papa Murphy's International L.L.C (prior express consent)
(Comments due 4/21/16;
Replies due 5/6/16)

Todd C. Bank (scope of ATDS prohibitions for residential telephone lines)
(Comments due 5/2/16;
Replies due 5/17/16)
Click here to see the full FCC Petition Tracker.