| IN THE NOVEMBER 2016 ISSUE: |
Robocall Strike Force Issues Initial Recommendations On October 26, 2016, members of the “Robocall Strike Force” met at the FCC’s headquarters to provide updates on the group’s activities since its formation in August. - First, the Strike Force reported that, in order to facilitate the FCC’s goal of carriers deploying call blocking technologies, it had developed a consumer outreach plan with an FCC-hosted webpage to provide information about call blocking resources. It also announced a proposal for a network-to-device information sharing framework to give consumers better call data and call handling solutions, but did not give a deadline for implementation of the framework. It further reported that a number of downstream providers had committed to facilitating call blocking.
- Second, regarding caller ID authentication standards, the Strike Force announced that it had tasked standards bodies such as such as ATIS (Alliance for Telecommunications Industry Solutions), the SIP (Session Initiation Protocol) Forum, the Industry Traceback Group sponsored by the U.S. Telecom Association, and CTIA with developing and testing SS7 authentication standards, which will make it more difficult to disguise caller ID information.
- Finally, the Strike Force reported that its initial “do-not-originate” (DNO) trial, during which participating providers, at the request of the Internal Revenue Service, blocked calls that appeared to come from certain IRS phone numbers, led to a 90% reduction in consumer complaints about IRS scam calls. The group expects to release a full report on the trial after the first quarter of 2017 and plans to expand the trial to include additional providers and telephone numbers.
Chairman Wheeler spoke during the meeting, and asked the Strike Force members to continue pushing for aggressive timelines for achieving its goals. Commissioners Clyburn and Rosenworcel also attended the meeting, and while they expressed appreciation to the Strike Force for its work up to this point, stressed that there is still much to be done.FCC Hosts Twitter Town Hall on Robocalls On November 4, 2016, the FCC held an hour-long “town hall” session on Twitter during which FCC staff clarified restrictions on autodialed calls that can be placed to consumers’ home and wireless phone numbers. Several tweets released during the session also told consumers how to file complaints if they receive what they believe to be an impermissible call, and encouraged consumers to visit the FCC’s website to learn more about the Commission’s initiatives on this issue. FCC Announces Robocall Webinar for Consumers On November 7, 2016, the FCC announced that the Consumer and Governmental Affairs Bureau will host a webinar for consumers entitled “How to Deal with Robocalls” on Wednesday, December 14, 2016 from 1:00 PM – 2:00 PM. The FCC stated that a detailed agenda for the webinar will be released at a later date, but in its Public Notice indicated that the event “will explain the FCC’s role in addressing this issue and the steps consumers can take to protect themselves from and/or decrease the amount of robocalls they receive.” |
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| 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 | | 24 (+2 seeking a retroactive waiver of the opt-out requirement for fax ads) | United Auto Credit Corporation (filed 10/28/16) – seeking a retroactive waiver of the opt-out requirement for fax ads | SafeMark Systems, LP – seeking a retroactive waiver of the opt-out requirement for fax ads (Comments due 11/14/16; Replies due 11/21/16) Cynosure, Inc. – seeking 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 (Comments due 11/14/16; Replies due 11/21/16) | Bureau Order responding to 28 petitions seeking a retroactive waiver of the opt-out requirement for fax ads (11/2/16) |
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Text Message Prompting to Complete Order is Not Telemarketing
When is a text message telemarketing and when is it just informational? This was the question faced by the court in Wick v. Twilio, No. C16-914RSL, 2016 U.S. Dist. Lexis 151482 (W.D. Wash. Nov. 1, 2016). In Wick, the plaintiff alleged that he visited a website and began to fill out a form to receive a product sample. After filling out his name, address, and cell phone number, the plaintiff decided that he did not want the sample, and closed the website without submitting the form. Immediately after, the plaintiff received a text message stating: “Noah, Your order at Crevalor is incomplete and about to expire. Complete your order by visiting [link].” The plaintiff also received a phone call alerting him that he needed to finish his order immediately if he wanted the sample. Plaintiff alleged that defendant violated the TCPA by robocalling and autodialing his cell phone without his express prior written consent.
Defendant filed a motion to dismiss arguing that the text message and call to plaintiff were not telemarketing and thus it was only required to obtain plaintiff’s prior express consent (not his prior express written consent), which it did when plaintiff entered his name and phone number on the online form.
In deciding that the communications were not telemarketing, the court drew analogies to two cases. First, in Aderhold v. car2go N.A., LLC, No. C13-489RAJ, 2014 U.S. Dist. Lexis 26320 (W.D. Wash. Feb. 27, 2014), a text message with an activation code to complete an online registration was found not to be telemarketing. Second, in Gragg v. Orange Cab Co., Inc., 145 F. Supp. 3d. 1046 (W.D. Wash., 2014), a text message with a link to book a cab that was sent after plaintiff called to order a cab was held not to be telemarketing.
Like in those two cases, the court in Wick noted that the “text and call received by plaintiff were also related solely to the consumer transaction he had initiated... Plaintiff does not allege that the text or call offered or encouraged the purchase of any product other than the free sample for which plaintiff submitted his information.” Although the plaintiff changed his mind and did not complete the online form, the court said that the defendant had no way to know that plaintiff had changed his mind. The court reasoned that “[t]his fact pattern is analogous to plaintiff receiving a text message and call immediately upon initiating an order process. It is not telemarketing for the service or product provider to inform plaintiff how to complete that process.”
Because plaintiff had consented to receiving non-telemarketing robocalls or autodialed calls by entering his cell phone number on the form, the court found that there could be no lability under the TCPA and dismissed his complaint.
The decision in Wick again highlights the thin line between telemarketing and non-telemarketing communications. Where calls are limited to confirming or prompting completion of a transaction initiated by the consumer, and there is no promotion of other goods or services, there is a strong argument that the calls are not telemarketing under the TCPA.
Facebook Responds to DOJ’s Brief Addressing Constitutionality of TCPA
On November 1, Facebook filed a response to a brief that the Department of Justice submitted as an intervenor in an action where Facebook has challenged the constitutionality of the TCPA under the First Amendment.
As background, a putative class action was filed against Facebook in April 2016 alleging that Facebook violated the TCPA by using an autodialer to send text messages without consent. Holt v. Facebook Inc., No. 3:16-cv-02266 (N.D. Cal.). The plaintiff, who claims to never have been a user of Facebook.com, says she began receiving “impersonal, promotional text messages” shortly after getting a new cell phone and continued receiving messages, including status updates, without her consent. Plaintiff alleges that Facebook routinely continues to send text messages to phone numbers of former users after the numbers have been recycled and are reassigned to new consumers who have not consented to receive the messages.
Facebook filed a motion to dismiss on various grounds, including that the plaintiff failed to plausibly allege the use of an autodialer. Facebook further argued that, even if the plaintiff had plausibly alleged the use of an autodialer, the TCPA violates the First Amendment because it impermissibly places restrictions based on content. As examples of impermissible content restrictions, Facebook pointed to the TCPA’s exceptions for calls to collect debts owed to or guaranteed by the U.S. government, and calls for emergency purposes like certain medical reminders. These exceptions, according to Facebook, demonstrate that the TCPA restricts speech based on its content alone. In support of its argument, Facebook cited to Reed v. Town of Gilbert, 576 U.S. _, 135 S. Ct. 2218 (2015), where the Supreme Court held that a town’s regulations on the display of outdoor signs were content-based regulations subject to strict scrutiny review. Facebook argued that the TCPA’s provisions, like the regulations in Reed, are not narrowly tailored to serve compelling state interests and thus violate the First Amendment.
On October 17, the Department of Justice intervened in the private action and filed a brief in support of the constitutionality of the TCPA. After noting that the court should first resolve Facebook’s non-constitutional arguments for dismissal, the government provided reasons why the TCPA should be upheld as constitutional. The government argued that the messages at issue were commercial speech subject to intermediate, not strict, scrutiny, and that the Ninth Circuit Court of Appeals had already upheld the constitutionality of the TCPA in two prior cases. The Supreme Court’s decision in Reed, the government continued, did not support Facebook’s arguments because it did not involve commercial speech like Facebook’s text messages.
On November 1, Facebook responded to the government’s brief by again arguing that a straightforward application of Reed demonstrates that the TCPA violates the First Amendment both facially and as applied to Facebook. Facebook argued that Reed did not merely restate the law, it changed the way that courts look at content-based restrictions by shifting the focus away from the purpose of the law to the application of the law. Because the TCPA treats communications differently based on their content, Facebook argued, it is unconstitutional regardless of whether the statute’s purpose is content neutral.
Although the court may not ultimately reach the constitutional question if it decides that plaintiff has not plausibly alleged the use of an autodialer or if the parties settle, Facebook’s First Amendment challenge demonstrates that controversy over the law is not going away any time soon. As businesses continue to face the potential liability of uncapped statutory damages under the TCPA, they will continue to challenge the statute and agency interpretations. Indeed, as we noted a few weeks ago in a TCPA Special Update, the FCC’s 2015 Declaratory Ruling and Order that expanded the scope of the TCPA is currently under attack in the United States Court of Appeals for the D.C. Circuit. Given the uncertainty of any potential effect on the validity of the TCPA or the FCC’s interpretive rules, businesses should continue to comply to minimize their exposure.
We will continue to keep you posted on these cases and other developments as they arise. |
| FCC/TCPA Regulatory Compliance Partner Alysa Hutnik will present on December 8 at the Professional Association for Customer (PACE) West Chapter Roadshow in Salt Lake City, Utah on key issues relevant to call centers’ telemarketing and privacy compliance. |
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