|IN THE AUGUST 2016 ISSUE:
FCC Issues Declaratory Ruling That Schools and Utility Companies May Make Certain Autodialed Calls Under the TCPA
On August 4, 2016, the FCC issued a Declaratory Ruling in which it determined that school callers and utility companies are permitted under the TCPA to make autodialed calls and send automated texts under certain circumstances. The ruling specifically responds to two petitions seeking such a ruling. The petitioners are as follows:
- Blackboard, Inc.– Blackboard sought a declaratory ruling that the TCPA rules “do not apply to informational, non-commercial, nonadvertising, and non-telemarketing autodialed and prerecorded messages sent by Blackboard’s educational institution customers because those calls are made for ‘emergency purposes.’” Blackboard was sued under the TCPA on the basis of informational calls and text messages sent to consumers regarding educational information (i.e., school announcements and closures). Blackboard transmits these calls and messages to phone numbers provided by schools that participate in the notification program. Blackboard argues that these informational messages should be distinguished from telemarketing calls and that they are made for “emergency purposes” and therefore not subject to the same consent and delivery restrictions as other calls.
- Edison Electric Institute and American Gas Association– EEI and AGA asked the Commission to issue a declaratory ruling that a “utility customer’s provision of a telephone number, including a cellphone number, to an energy utility satisfies the TCPA consent requirements for such customer to receive non-telemarketing, informational calls at that number related to the customer’s utility service.” The petition noted that although the Commission has previously indicated that certain communications from a utility company to its customers are exempt from the TCPA’s consent requirements (i.e., for emergency communications), it had not issued a “comprehensive statement” on the issue of what consent is required for non-emergency communications from energy utilities. The petition claimed that the absence of such a statement has allowed “an aggressive plaintiffs’ bar” to pursue TCPA litigation against utility companies “that, in a rational world, would kindly be described as absurd.”
With respect to Blackboard’s petition, the Commission granted in part and denied in part a request to confirm that all autodialed calls made by an educational organization are made for an “emergency purpose,” and therefore would be exempt from the TCPA. Specifically, the Commission determined that “autodialed calls to wireless numbers made necessary by a situation affecting the health and safety of students and faculty are made for an emergency purpose,” while other informational calls (such as reminders of parent-teacher conferences) would not fall under the emergency purpose TCPA exception, and therefore would be subject to prior express consent requirements. Describing this consent, however, the Commission stated that “when a parent/guardian or student provides only their wireless number as a contact to a school, the scope of consent includes communications from the school closely related to the educational mission of the school or to official school activities absent instructions to the contrary from the party who provides the phone number.” (emphasis added). Note: in this passage, the Commission is summarizing prior orders relating to the provision of consent for non-telemarketing calls to wireless numbers. However, the passage creates ambiguity because prior orders discuss any situation in which a consumer provides a wireless number as a contact number; nothing in prior orders suggests that the consent analysis varies based on whether the consumer provided only a wireless number or provided other contact number(s) as well.
Additionally, the Order denies Blackboard’s request for confirmation that consent transfers after a phone number has been reassigned, finding that such a request is moot in light of the Commission’s statements on reassigned phone numbers in the 2015 Omnibus TCPA Declaratory Ruling.
The Order also extends the “emergency purpose” exemption for school callers to “third parties sending emergency messages, e.g., in cooperation with schools to disseminate time-sensitive alerts … as long as the messages are limited to the emergency at issue and do not include any marketing.” Commissioner Jessica Rosenworcel dissented from this portion of the decision, asserting that “while perhaps unintended, this overbroad conclusion has the potential to become a gaping loophole that multiplies the number of unwanted robocalls consumers receive.”
In its discussion of the EEI/AGA petition, the declaratory ruling similarly found that a customer’s provision of his or her wireless phone number to a utility company constitutes consent to receive certain calls from that utility company about matters related to the service. Such calls can include calls to current customers to warn that failure to make payment will result in service curtailment. The order was clear, however, that “the utility company will bear the burden of showing it obtained the necessary prior express consent.” Additionally, unlike the Blackboard part of the decision, the Commission did not address whether communications sent by utility companies to their customers would fall within the TCPA’s “emergency purpose” exception. (The EEI/AGA petition had originally requested such a statement, but petitioners subsequently withdrew this portion of the request.)
D.C. Circuit Court Announces Oral Argument Date for TCPA Omnibus Order Appeal
On July 25, the U.S. Court of Appeals for the D.C. Circuit announced that it will hear oral arguments in the case of ACA International et al. v. FCC on Wednesday, October 19, 2016 at 9:30 A.M. The petitioners in this case have challenged the validity of the FCC’s July 2015 Omnibus TCPA Declaratory Ruling, in which the Commission, among other things, expanded the meaning of the term “automatic telephone dialing system” and found that subscriber consent to receive calls does not transfer if a phone number is reassigned.
FCC Approves New Government Debt Collection Rules
According to news reports, on August 2, the FCC Commissioners approved new rules to implement a TCPA exemption for calls related to government debt collection that was adopted as part of the Bipartisan Budget Agreement of 2015. The text of the rules has not been made public as of August 9, but August 2 was the deadline for the Commission to implement such rules as required by the 2015 law.
FCC Chairman Wheeler Turns to the FCC Blog to Encourage Robocall Blocking
On July 22, FCC Chairman Tom Wheeler penned a blog post on the Commission’s website highlighting the efforts at the agency to prevent unwanted automated and prerecorded message calls restricted under the TCPA. In particular, the blog post discussed recent and upcoming rulemakings, declaratory decisions, and enforcement actions, as well as efforts to engage industry stakeholders such as telephone companies and parties that facilitate mass calling, to address what the Chairman deemed “the number one complaint the FCC receives from consumers.” At least for the remainder of Chairman Wheeler’s tenure at the FCC, the Commission appears focused on consumer protection issues, especially with regard to so-called “robocalls.”
Of particular interest was the Chairman’s statement that he recently sent letters to the CEOs of major wireless and wireline phone companies, as well as intermediary carriers that connect high volume callers to the consumer’s phone company, calling on them to either offer or facilitate the offering of call-blocking technologies that would curb the number of calls consumers receive. He further implored these companies to “accelerate the development and deployment of technical standards that would prevent spoofing of caller ID and thus make blocking technologies more effective, as was done in the battle against spam years ago.” The post added “[t]he Commission has done its part, making clear that phone companies face no legal barriers to helping consumers block unwanted calls with the use of robocall blocking technology. Today, we urge carriers to step up to take that responsibility.” Chairman Wheeler noted that he asked all recipients of these letters to “respond within 30 days with their concrete, actionable solutions to address these issues.” Just three days after the release of the blog post, AT&T responded to the Chairman’s request, stating that it would begin offering call blocking services to its customers.
The FCC under Chairman Wheeler has been one of the most active consumer enforcement Commissions in recent memory. We expect the Chairman to continue to push this consumer enforcement agenda in the coming months, particularly with respect to TCPA issues. As such, companies that may be subject to the FCC’s jurisdiction due to their telemarketing efforts should take precautions in order to avoid being the subject of unwanted FCC attention.
|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
|22 (+32 seeking a retroactive waiver of the opt-out requirement for fax ads)
||Professional Services Council (Aug. 4, 2016) – seeking reconsideration of the Broadnet declaratory ruling that grants a TCPA exemption for calls by government contractors
Anthem, Inc. et al . (July 28, 2016) – seeking clarification that even after the 2015 Omnibus TCPA Order, non-telemarketing healthcare calls allowed under HIPAA are still permissible under the TCPA
National Consumer Law Center (July 26, 2016) – seeking reconsideration of the Broadnet declaratory ruling that grants a TCPA exemption for calls by government contractors
|National Consumer Law Center – seeking a stay of the Broadnet declaratory ruling that grants a TCPA exemption for calls by government contractors
(Comments due 8/11/16; Replies due 8/16/16)
RingCentral, Inc. – seeking a ruling that fax broadcasters are not “senders” for TCPA purposes and clarification regarding faxes with “ de minimis ” promotional information
(Comments due 8/29/16; Replies due 9/13/16)
National Consumer Law Center – seeking reconsideration of the Broadnet declaratory ruling that grants a TCPA exemption for calls by government contractors
(Comments due 8/31/16; Replies due 9/15/16)
Mortgage Bankers Association – exemption to the prior express consent requirement for non-telemarketing mortgage servicing calls required by law under other statutes and regulations
(Comments due 9/2/16; Replies due 9/19/16)
|Declaratory Ruling – Blackboard, Inc.; Edison Electric Institute and American Gas Association
(rel. August 4, 2016)
|Plaintiff Who Fails to Allege Concrete Injury in Fact Lacks Article III Standing
Another district court has dismissed a TCPA complaint based on lack of Article III standing. Following the Supreme Court’s holding in Spokeo, Inc. v. Robins, 578 U.S. __, 136 S. Ct. 1540 (2016), the Eastern District of Louisiana granted defendants’ motion to dismiss finding that plaintiff failed to plead an actual injury in fact in Sartin v. EKF Diagnostics, No. 2:16-cv-01816, 2016 U.S. Dist. LEXIS 86777 (E.D. La. July 5, 2016). Plaintiff Dr. Barry Sartin alleged that defendants Stanbio Laboratory and its parent company, EKF Diagnostics, violated the TCPA by sending unsolicited fax advertisements without proper opt-out notices to his office, as well as to the proposed class, to promote medical products and services. Defendants moved to dismiss plaintiff’s complaint, or alternatively to the strike the proposed class. The court found that as a threshold issue, plaintiff’s complaint failed to allege any facts indicating that plaintiff sustained a concrete injury in fact, as required under Spokeo and its predecessors. Judge Sarah S. Vance held that the only injury referenced in plaintiff’s complaint was to statutory damages, as opposed to any particularized injury. The court stated that “[w]hile a plaintiff need only provide ‘general factual allegations of injury’ to withstand dismissal at the pleading stage,” plaintiff’s “conclusory allegations lacks even general factual support.” Id. at *9. The court also found plaintiff’s attempt to raise new factual allegations or assert new claims as to specific injuries in his opposition papers to be inappropriate.
As this motion was pending before the Supreme Court issued Spokeo, the court denied defendants request to dismiss plaintiff’s complaint with prejudice, holding that “Dr. Sartin’s failure to adequately allege a concrete injury in fact may reflect mere pleading defect, rather than a more fundamental problem with his claims.” Id. at 11. It remains to be seen whether the court would permit a plaintiff that filed a post-Spokeo complaint to correct a similar pleading defect.
Twitter Potentially Liable for Unwanted Tweets
Twitter may be potentially liable for unwanted texts sent to “recycled” phone numbers under the TCPA. The Northern District of California denied Twitter’s motion for partial summary judgment in Nunes, et al. v. Twitter Inc., No. 3:14-cv-02843 (N.D. Cal. July 1, 2016). Plaintiff Beverly Nunes brought suit individually and on behalf of a proposed class of persons who received unwanted texts from Twitter on their cell phones that were assigned a recycled — or previously issued — phone number. Both parties filed cross-motions for partial summary judgment on two issues: (1) whether Twitter can potentially be liable to Nunes under the TCPA, and (2) if Twitter is potentially liable, would it nonetheless be shielded from liability under the Communications Decency Act of 1996.
In denying Twitter’s cross-motion for summary judgment, Judge Vince Chhabria rejected Twitter’s arguments that it should not be considered responsible for sending unwanted tweets delivered via text message. The court held that Twitter is the actual sender of the texts and therefore the entity making the “call” under the TCPA. In his brief tutorial on how Twitter works for the social-networking novice, Judge Chhabria explained that Twitter takes the author’s 140-character maximum tweet and converts it to a format that can be delivered via text. As Twitter delivers the ultimate text, the court considered Twitter to be the entity making the “call” for purposes of liability under the TCPA.
Judge Chhabria rejected Twitter’s argument that the author of the tweet could be considered the maker of the call, since the author does not know or control who signs up to receive his or her tweets via text message, as Twitter does not share that information with any author. Furthermore, since the author is not involved in the “mechanics” of converting a tweet into a text, the author could not know if he or she was making a “call” when a tweet is composed, and must be eliminated as the “maker” of the call or text for purposes of TCPA liability.
The court also rejected Twitter’s argument that based on the definition of “initiate” in the July 2015 FCC Order, the former owner of the cellular telephone number signed up to receive tweets, it thus initiated the tweet and could be considered the “maker” of all of the text messages to that phone number in the future. See Rules & Regulations Implementing the Telephone Consumer Prot. Act of 1991, et al., 30 FCC Red. 7961 (2015). The court distinguished the facts in Nunes from the YouMail and TextMe situations discussed in the 2015 FCC Order in which the individual app users took specific and affirmative steps to initiate or place a specific call or text to either their personal contact list or an incoming caller. The court did not find that the former cell phone owner had sent an “invitational text message” as defined under the 2015 FCC Order.
Finally, the court dismissed Twitter’s argument that it was immune from plaintiff’s suit based on the Communications Decency Act. Under 47 U.S.C. §230(c)(1), the Act bars any lawsuit brought against an “interactive computer service” in which the lawsuit seeks to hold the service liable as “the publisher or speaker of any information provided by another information content provider.” The court held that Twitter attempts to shield itself from liability as a publisher of content were without merit as the content of the text was not at issue, but rather the sending of the text itself.
Attorney Required to Offer Lectures as Sanction for Filing Frivolous TCPA Suit
The Northern District of Oklahoma has ordered an attorney to offer lectures to law students on the potential pitfalls of bringing a lawsuit without proper supervision from a more experienced attorney in Salmon v. CRST Expedited Inc., No. 4:14-cv-00265 (N.D. Okla. July 19, 2016). Judge Clare V. Eagan accepted the Report and Recommendation of Magistrate Judge T. Lane Wilson in sanctioning a newly admitted attorney for frivolous claims brought against one of the defendants in a TCPA suit he filed while still in law school. In 2014, plaintiff filed a lawsuit based on alleged violations of the TCPA and the Oklahoma Consumer Protection Act claim arising from calls he allegedly received on his cell phone, a number he claims was on the National Do Not Call Registry since 2008. The plaintiff identified many of the defendants as “John Doe telemarketers” or “John Doe teletexters,” but later amended his complaint to identify named defendants including Nutra Pharm Corp (“NPC”). Defendant NPC filed a motion to dismiss and sought sanctions pursuant to Fed. R. Civ. P. 11.
The Northern District of Oklahoma granted NPC’s motion to dismiss, finding plaintiff’s claims against NPC to be frivolous. Magistrate Judge Wilson recommended both monetary and non-monetary sanctions. Neither party objected to Judge Wilson’s recommendation that the plaintiff formally offer to speak to law students at The University of Tulsa College of Law “about the dangers of filing a lawsuit without having an experienced attorney to review it.” Id. at 8. Rather, the parties disputed the $3,000 sanction recommended by Judge Wilson, with NPC arguing that it did not fully compensate them for the $8,350 it incurred in attorney’s fees and costs, and plaintiff arguing that the proposed $3,000 sanction would impose a financial hardship upon him as he is a newly licensed attorney who has just opened his own practice. Judge Eagan held that sanctions appropriately balanced the costs incurred by NPC in defending the frivolous action, with the plaintiff’s financial situation and relative lack of experience, which the court considered a mitigating factor. Moreover, the court was satisfied that the imposition of both monetary and non-monetary sanctions would properly impose the desired effective of Rule 11 to deter parties from engaging in any future litigation misconduct.