|IN THE DECEMBER 2016 ISSUE:
FCC Hosts “Robocall” Webinar
On December 14, 2016 the Federal Communications Commission's (FCC) Consumer and Governmental Affairs Bureau hosted a webinar for consumers entitled “How to Deal with Robocalls.” The hour-long webinar was broken out into the following segments:
(1) A discussion on the FCC’s recent TCPA actions. This included the adoption of rules in August to implement the federal debt collection exemption and the July order clarifying how the TCPA would be applied to calls and texts from schools and utility companies in certain instances.
(2) A presentation of the Enforcement Bureau’s perspective on TCPA issues. Staff noted that TCPA enforcement priorities have shifted over time, depending in part on information received in consumer complaints. Right now, they are focused on spoofing, and spam text messaging is an increasing area of concern.
(3) An overview of the FCC’s technical efforts to reduce robocalls. The FCC is working with the industry, through initiatives such as the Robocall Strike Force, to develop authentication standards to address spoofing issues, as well as other technical solutions to reduce the number of autodialed calls consumers receive.
FCC and CRTC Sign Memorandum of Understanding on Robocalls and Spoofing
On November 17, 2016, the FCC announced that it had signed a Memorandum of Understanding (MOU) with the Canadian Radio-Television and Telecommunications Commission (CRTC) that would allow the agencies to collaborate on matters related to robocalls and caller ID spoofing. While the MOU does not have any legally binding effects, the two agencies made a number of commitments, including to exchange information about investigations and complaints, to coordinate enforcement against cross-border violations of relevant laws, and to collaborate on initiatives to promote technically and commercially viable solutions for robocalls and caller ID spoofing. Enforcement Bureau Chief Travis LeBlanc signed the MOU on the FCC’s behalf, and in a subsequent blog post highlighted the CRTC agreement as one of several initiatives undertaken by the FCC to work with other agencies both within and outside the U.S. on these issues. The MOU is similar to an agreement reached earlier this year between the CRTC and Federal Trade Commission to collaborate on efforts to address allegedly unlawful commercial email and telemarketing campaigns.
“Robotext” Enforcement Advisory
On November 18, 2016, the FCC’s Enforcement Bureau issued a four-page enforcement advisory regarding the “limits of use of autodialed text messages” (so-called “robotexts”). The FCC has long held that the TCPA applies to both voice calls and text messages. As such, according to the advisory, the statute’s restrictions on autodialed calls without prior express consent of the recipient apply equally to autodialed text messages.
The advisory notes that “[t]hose contending that they have prior express consent to make robotexts to mobile devices have the burden of proving that they obtained such consent.” Interestingly, the advisory states that this requirement would include “text messages from text messaging apps and Internet-to-phone text messaging where the technology meets the statutory definition of an autodialer.” Citing back to the FCC’s 2015 Omnibus TCPA Order (currently under appeal), the advisory comments that “[t]he fact that a consumer’s wireless number is in the contact list of another person’s wireless phone does not, by itself, demonstrate consent to receive robotexts.”
The advisory also clarifies that the one-wrong-call safeguard against liability for calls to reassigned numbers adopted in the 2015 Order likewise applies to autodialed text messages.
Finally, the advisory warns that autodialed text messages sent in violation of the TCPA can result in forfeiture penalties from the FCC of up to nearly $19,000 per violation. However, a footnote in the advisory clarifies that if the person or entity that allegedly violates the TCPA does not hold an FCC license or other authorization, the FCC must first issue a warning citation before it can attempt to impose or enforce any monetary penalties.
FCC Denies TCPA Exemption for “Mortgage Servicing Calls”
On November 15, 2016, the Consumer and Governmental Affairs Bureau (CGB) released an order denying a request by the Mortgage Bankers Association (MBA) for an exemption of the prior-express-consent requirement of the TCPA for “mortgage servicing calls” to wireless phone numbers, such as calls to inform borrowers of their options should they become delinquent or default on their mortgages. MBA argued that the exemption was “necessary to ensure that the TCPA does not restrict mandated, timely communications with residential mortgage borrowers that are required by other federal and state laws or regulations.”
CGB used the following three-part test to analyze MBA’s request: (1) whether the messages would be free to the end user; (2) whether the messages are time-sensitive or if there is some other compelling public interest to support the exemption; and (3) whether the caller could apply conditions to the exemption. After reviewing each of these factors, CGB denied the exemption request. First, CGB stated that MBA did not clearly establish in its petition that the calls covered by the exemption would not be charged to the called party (i.e. they would not count against any plan limits on the consumer’s voice minutes or texts). Second, CGB determined that mortgage servicing calls are not time-sensitive because the statutes that mandate them typically “do not require telephone contact until a borrower is at least 20 to 36 days into the delinquency period.” The decision further noted that, unlike calls to notify consumers about potentially fraudulent transactions or identity theft, there is no compelling public interest that would warrant an exemption to the prior-express-consent requirement. CGB did not directly address whether MBA’s proposed conditions on exempted calls would be sufficient.
Interestingly, the order observes that “mortgage servicers are free to autodial consumers without an exemption by simply relying on the prior express consent a consumer provides when including their wireless phone number on a mortgage application” or that they could “obtain new consent by one of many available means, including by email.” Similar to other decisions on requests for prior-express-consent exemptions, the order further posits that callers could avoid the requirement altogether by taking the arduous step of placing mortgage servicing calls without using autodialer technology.
FCC Grants Seven Retroactive Waivers of Written Consent Requirement
On October 14, 2016, the FCC’s Consumer and Governmental Affairs Bureau issued an order in which it granted seven petitions for a retroactive waiver of the Commission’s 2012 rule that required entities to obtain prior express written consent from consumers for autodialed calls. The waiver recipients were F-19 Holdings, LLC; Kale Realty, LLC; Mammoth Mountain Ski Area, LLC; the National Association of Broadcasters and their members; the National Cable & Telecommunications Association and their members; Papa Murphy’s Holdings, Inc. and Papa Murphy’s International L.L.C.; and Rita’s Water Ice Franchise Company, LLC. The Bureau determined that there was good cause to grant the waivers because the petitioners “sufficiently demonstrated they incorrectly but reasonably interpreted the Commission’s  order to mean that their old written consents would remain valid after the new rules went into effect.” However, the retroactive waivers granted in this order were only valid until October 7, 2015. One petition for reconsideration of the order has been submitted to the FCC, specifically as applied to the Papa Murphy’s petitioners. Neither the Bureau nor the Commission has responded yet to the request.
|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
|17 (+3 seeking a retroactive waiver of the opt-out requirement for fax ads)
3 requests for reconsideration of the 11/2/16 fax waiver in response to petitions by 22 parties
1 request for reconsideration of the 10/14/16 waiver of the prior express written consent rule granted to 7 petitioners
|Brigadoon Fitness Inc. – filed 11/7/16 (seeking a retroactive waiver of the opt-out requirement for fax ads)
bebe stores, inc. – filed 11/18/16 (seeking seeking a retroactive waiver of the prior express written consent rule)
|United Auto Credit Corporation; Brigadoon Fitness Inc. (seeking a retroactive waiver of the opt-out requirement for fax ads)
(Comments due 12/16/16; replies due 12/23/16)
bebe stores, inc. (seeking seeking a retroactive waiver of the prior express written consent rule)
(Comments due 1/6/17;
replies due 1/23/17)
|Mortgage Bankers Association (seeking a TCPA exemption for autodialed mortgage servicing calls)
F-19 Holdings, LLC; Kale Realty, LLC; Mammoth Mountain Ski Area, LLC; NAB; NCTA; Papa Murphy’s Holdings, Inc. and Papa
Murphy’s International L.L.C.; and Rita’s Water Ice Franchise Company, LLC (seeking a retroactive waiver of the prior express written consent rule)
|Florida Federal Court Declines Jurisdiction over State Law Claims in TCPA Action
On November 7, 2016, the U.S. District Court for the Southern District of Florida sua sponte declined to exercise supplemental jurisdiction over, and dismissed, a TCPA plaintiff’s two state law claims. The plaintiff has alleged that Residential Credit Solutions, Inc. placed hundreds of debt collection calls to his mobile phone using an autodialer, in violation of the TCPA, as well as the Florida Consumer Collection Practices Act (FCCPA), which prohibits abusive or harassing conduct in attempt to collect a debt. The court has supplemental jurisdiction over the FCCPA claims, the plaintiff argued, because such claims are “so related to the federal TCPA claim that they form part of the same case or controversy under Article III.” Travis v. Residential Credit Solutions, Inc., No. 0:16-cv-62552 (S.D. Fla.).
The court determined that it clearly has original jurisdiction over the TCPA claim, and found that it has supplemental jurisdiction over the asserted FCCPA claims, as they “are so related to the federal claim... that [they each] form part of the same case or controversy.” The court ultimately concluded, however, that it should not exercise jurisdiction over the state law claims because they present novel and complex questions of state law that would otherwise predominate over the TCPA claim, obscuring its significance. As a result, the court dismissed the two state law claims, but not before warning against the “current trends in the law favor[ing] expanded federal court jurisdiction.”
Court Concludes SMS Opt-In Does Not Qualify as Express Written Consent
On October 26, 2016, the U.S. District Court for the Eastern District of California denied defendants Harman Management Corporation’s (HMC) and 3Seventy, Inc.’s motion to dismiss for failure to state a claim and motion to strike class claims, allowing a putative TCPA class action to proceed despite the plaintiff’s admission that he opted in to the text message program at issue. Larson v. Harman Mgmt. Corp. & 3Seventy, Inc., No. 1:16-cv-219, 2016 U.S. Dist. LEXIS 149267 (Oct. 26, 2016).
In February, the plaintiff had filed a putative first amended class action complaint, claiming that HMC and 3Seventy violated the TCPA with a 2012 automated text message campaign that offered coupons for HMC restaurant food items (such as A&W burgers). Specifically, plaintiff alleges that, although he affirmatively opted in to receive the first text message coupon, subsequent messages were sent without his prior express written consent (and not in direct response to his opt in).
In July, HMC and 3Seventy filed the motion to dismiss for failure to state a claim and motion to strike class claims, arguing that by opting-in to the initial call-to-action (texting “BURGER” to 70626), the plaintiff provided prior express written consent to the initial and subsequent text messages. The court disagreed, concluding that the plaintiff’s “BURGER” message failed to constitute sufficient consent. Although the message was “in writing,” the court explained, it neither included the plaintiff’s signature nor authorized HMC and 3Seventy to send subsequent automated marketing text messages.
Additionally, the court rejected defendants’ arguments that the court take a “common sense” approach to the TCPA claims, in line with the Ninth Circuit decision in Chesbro v. Best Buy Stores, L.P., 705 F.3d 913 (9th Cir. 2012). In Chesbro, the Ninth Circuit concluded that prerecorded messages regarding the expiration of Reward Zone certificates were unsolicited advertisements, despite the absence of an explicit mention of Best Buy products or services. Here, the defendants contended that, because the campaign provided an opt out and opt-out instructions (“TextSTOPtoEnd”), it “is not the type of situation the TCPA was intended to address because it did not ‘mislead, harm, or harass consumers.’” The court explained, however, that it was unpersuaded by this “common sense” argument.
Furthermore, with respect to the motion to strike class claims, the court rejected the defendants’ argument that the proposed class is not ascertainable and constitutes a “fail-safe” class, determining that it is more appropriate to address the issue at the class certification stage of the litigation, rather than at the pleading stage.