TCPA Tracker-January 2017
January 10, 2017
IN THE JANUARY 2017 ISSUE:
Recent News | FCC Petitions Tracker Cases of Note Speaking Engagements | The Team

To read prior issues of TCPA Tracker, please click here.
 
Recent News

Federal Trade Commission’s DNC Registry Data Book
 
On December 9, 2016, the Federal Trade Commission (FTC) released its eighth annual National Do Not Call Registry Data Book for Fiscal Year 2016.  The Data Book provides numerical information for the period between October 1, 2015 and September 30, 2016 about registrations on the National Do Not Call Registry, complaints filed with the FTC, and entities accessing the registry.  Noteworthy items from the Data Book include the following:

  • There were 3,159,804 new active registrations during FY 2016 (226,001,288 telephone numbers in 2016 compared to 222,841,484 telephone numbers in 2015).  The 10 states with the highest number of new registrations were New Hampshire, Connecticut, Massachusetts, Colorado, Maine, New Jersey, Kansas, Wisconsin, Michigan, and Pennsylvania.
  • The FTC received 5,340,234 complaints – more than 1.7 million more than the previous fiscal year – from consumers regarding recorded message calls or calls for which the consumer requested that the entity stop calling. 
  • More than 20,000 entities accessed the DNC Registry during FY 2016 (2,353 entities paid fees, 17,634 entities accessed the Registry at no charge, and 503 entities claimed exemption based on the types of calls they placed (i.e. not involving the sale of goods or services), or the fact that they had an existing business relationship with or had received prior express written consent from the consumers they called).
FCC Denies Petition for Declaratory Ruling on Fax Advertisements

On December 21, 2016, the Federal Communications Commission's (FCC) Consumer and Governmental Affairs Bureau (CGB) released an order denying a request by Kohll’s Pharmacy & Homecare, Inc. (Kohll’s) for a declaratory ruling that facsimiles sent on its behalf did not violate the Telephone Consumer Protection Act (TCPA) “where the facsimiles simply informed businesses of the health benefits of corporate flu vaccines.”  Kohll’s claimed that such transmissions do not fit within the definition of an “unsolicited advertisement” because “the purpose of the facsimile transmission was to ‘promote wellness … so that people would get vaccinated and not get ill.’”  Alternatively, Kohll’s asked the FCC to issue an exemption from the TCPA for its faxes based on the Commission’s exemption for healthcare-related calls subject to the Health Insurance Portability and Accountability Act (HIPAA), or for a retroactive waiver of the fax advertisement rules. The Bureau ruled against Kohll’s on each request.

First, the Bureau denied Kohll’s contention that the faxes were not advertisements.  The order found that because “the primary purpose of the faxes is to sell flu vaccines rather than any informational purpose,” the Kohll’s faxes were advertisements.  In particular, the order explained that the faxes listed a price range for the flu vaccines, finding that “the primary purpose of including price will almost always be to convince the fax recipient that the price for the product or service is reasonable and that a purchase should be considered.”  CGB also considered the amount of space on the faxes that was used for advertising content rather than non-advertising information.  The order concluded that the “amount of space devoted to the commercial availability of Kohll’s flu vaccination service and instructions for getting a free price quotation show that the faxes are not bona fide informational communications.” 

Next, the order rejected Kohll’s argument that the FCC should find that its faxes are exempt from the TCPA as healthcare-related calls that are subject to HIPAA.  CGB stated that the Commission’s previous healthcare exemptions were narrow and expressly permitted under the TCPA, but that “Kohll’s has not offered any basis for extending the previously granted exemptions for healthcare-related messages to its unsolicited advertisement faxes.”  The order also refuted Kohll’s claim that the application of the healthcare exemption to phone calls and text messages but not faxes violates the First Amendment, noting that the previous exemptions “were limited to calls that did not constitute unsolicited advertisements,” and therefore the Commission “afford[ed] identical treatment to the various types of communication.”

Finally, the Order denied Kohll’s request for a retroactive waiver of the FCC’s fax advertisement rules, finding that “Kohll’s does not state any special circumstance that would warrant deviation for the rule, nor does it put forth any reason the public interest would be better served by waiver of the rule.”

It is important to note that this ruling is a decision by a Bureau of the Commission.  As such, it is subject to review by the Commissioners upon petition by an interested party.  With the upcoming transition to the new administration, it is not clear whether Kohll’s will pursue additional administrative remedies relating to its petition.  We will continue to monitor proceedings and report on them as they occur.

FCC Continues TCPA Promotional Campaign

With just days left in Chairman Tom Wheeler’s tenure, the FCC has continued to publicize the agency’s focus on enforcing and increasing awareness of the TCPA.  Most recently, Chairman Wheeler issued a statement on December 21, 2016 to commemorate the 25th anniversary of the TCPA, in which he commented that “the Commission has renewed its commitment to a strong, pro-consumer reading of the [Act].”  The statement highlighted several specific examples of the Commission’s recent TCPA policy actions, including the Enforcement Bureau’s “robotext” advisory, the clarification on the TCPA’s applicability to calls from schools and utility companies, and the 2015 Omnibus TCPA Order that expanded the definition of an “autodialer” and established a one-call safe harbor for calls to reassigned phone numbers. (Note: an appeal of the 2015 Omnibus TCPA Order is pending before the D.C. Circuit.  The FCC faced strong questioning at the oral argument, and we believe that the court’s decision may result in reversal of some of all of the FCC’s decision.)  The Commission separately marked the TCPA’s silver anniversary with a series of consumer-focused tweets about certain call restrictions provided for in the statute.

The Chairman’s statement comes after the FCC’s CGB 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.

It is unclear whether or how the FCC’s focus on TCPA and other consumer issues may change following the transition to the new administration.  We will continue to monitor the FCC’s activity in this area.

 

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
17 (+4 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
Renue Systems Development Corp., Inc. et al. – seeking a retroactive waiver of the opt-out requirement for fax ads (filed 1/4/17)
 
Great Lakes Higher Education Corp. et al. – seeking reconsideration of the FCC’s rules to implement the government debt collection call exemption to the TCPA (filed 12/16/16)
 
Mortgage Bankers Association – Application for Review of decision denying MBA’s petition seeking an exemption of the prior-express-consent requirement of the TCPA for “mortgage servicing calls” (filed 12/15/16)
bebe stores, inc. – seeking a retroactive waiver of the prior express written consent rule
(Replies due 1/23/17)
Kohll’s Pharmacy & Homecare, Inc. – seeking a declaratory ruling that its faxes regarding flu vaccines did not violate the TCPA (released 12/21/16)
Click here to see the full FCC Petition Tracker.
Cases of Note
Seventh Circuit Denies Challenge to Indiana’s Anti-Robocall Statute

The Seventh Circuit on January 3, 2017 shot down a veterans’ group challenge to Indiana’s anti-robocall statute, Ind. Code §24-5-14-5.  The statute forbids recorded messages from automatic dialing machines unless the subscriber has consented to receiving the calls, or the message is preceded by a live operator to obtain the called party’s consent before the message is played.  Exceptions are carved out, however, for messages (1) from school districts to students, parents or employees; (2) to subscribers with whom the caller has a current business or personal relationship; and (3) advising employees of work schedules.  Patriotic Veterans, Inc., argued that the statute disfavored political speech and therefore was content discrimination.  The Seventh Circuit bluntly said in response, “We don’t get it.”  Judge Easterbrook, writing for the panel, explained that, “[t]he exceptions collectively concern who may be called, not what may be said, and therefore do not establish content discrimination.” Patriotic Veterans Incorporated v. State of Indiana, No. 16-2059 (7th Cir.).

Patriotic Veterans also argued that “the statute is excessive in relation to its goal of protecting phone subscribers’ peace and quiet, and that the First Amendment thus requires Indiana to make an exception for political speech.”  The Court disagreed with the rationale, holding that doing so would take a content-neutral law and make it invalid by creating message-based distinctions. “That exception, if created, would be real content discrimination.”  Judge Easterbrook stated frankly, “That’s out of the question.  Indiana’s law must stand or fall as written.”  The decision upheld the Southern District of Indiana’s decision that the law is constitutional.  This is the second time that this case came before the Seventh Circuit.  In 2013 the Court reversed the district court’s decision that the Indiana statute was preempted by the TCPA.
Speaking Engagements
TCPA / Fair Credit Reporting Act/ Debt Collection Issues

On March 28, 2017 partner Lauri Mazzuchetti will present TCPA / Fair Credit Reporting Act/ Debt Collection Issues during PLI's 22nd Annual Consumer Financial Services Institute in New York, NY. For more information, and to register, please click here.