April 28, 2021

Recent News

Petitions for Reconsideration of FCC’s December 2020 Report and Order

On March 17, 2021 Enterprise Communications Advocacy Coalition (ECAC) filed Petition for Reconsideration asking the FCC to reconsider certain TCPA exemptions codified in its December 2020 Report and Order.  Additionally, ACA International (ACA), together with the Edison Electric Institute (EEI), the Cargo Airline Association (CAA), and the American Association of Healthcare Administrative Management (AAHAM) have filed a separate but similar Petition for Reconsideration also concerning TCPA exemptions.

Both Petitions call on the Commission to address the “prior express written consent” requirement imposed on certain informational prerecorded calls pursuant to section 64.1200(a)(3) of the Order.  Earlier this year the American Bankers Association and various other trade associations, including ACA,  met with FCC officials to discuss the requirement, which they believe was created inadvertently.

ECAC’s Petition also asks the Commission to reconsider the numerical limitations the Order applies to different types of calls.  According to ECAC, “These conflicting limitations create differing standards and limitations based upon the content and purpose of the message.”  If the numerical limitations are, as ECAC argues, “content based restrictions” the Order should be subject to stricter scrutiny. 

The ACA’s Petition also takes aim at these “one-size-fits-all” limitations and urges the Commission to “reassess each exemption and craft frequency limitations consistent with consumer expectations.”  Furthermore, the ACA questions the Commission’s decision to extend telemarketing opt-out requirements to certain informational prerecorded calls.  Additionally, the ACA asks the Commission to confirm that “past guidance regarding ‘prior express consent’ in the utilities context under the 2016 EEI Declaratory Ruling” will apply to calls made to residential landlines.

Comments are due on April 27, 2021 and reply comments are due on May 7, 2021, per this Federal Register notice.

SGS North America Withdraws Petition

On March 17, 2021 SGS North America, Inc (SGS) filed a Notice of Withdrawal. SGS will no longer be pursuing its Petition for Expedited Declaratory Ruling, Or in the Alternative, Request for Retroactive Waiver.  In its Petition, filed December 17, 2018, SGS asked the Commission to “clarify the meaning of ‘telemarketing’ and ‘dual purpose’ calls with respect to the prior express written requirements under the TCPA” in order to “fix a growing trend of unwarranted TCPA litigation.”  The Notice of Withdrawal did not contain an explanation for the withdrawal nor did it indicate whether or not SGS intended to further pursue the matter. 

Consumer Advocacy Urges FCC to Implement New Regulations and Correct Error

The National Consumer Law Center, on behalf of and together with various other consumer advocacy groups, submitted a letter to the Commission regarding the December 2020 Report and Order.  The letter, filed on March 29 2021, expresses support for the new regulations and urges the Commission to implement them as soon as possible.  The letter also addresses the alleged error in section 47 C.F.R. § 64.1200(a)(3) regarding consent requirements and exemptions for certain prerecorded informational calls.  The NCLC, like USTelecom, endorses the American Bankers Association’s proposed revisions.  However the NCLC also maintains that “there are a number of significant issues relating to consent (such as the scope of consent and clarifying the ability to revoke consent) for automated calls that we hope that the Commission will address in the coming months.”

FCC Petitions Tracker

Kelley Drye’s Communications group prepares a comprehensive summary of pending petitions and FCC actions relating to the scope and interpretation of the TCPA.

Number of Petitions Pending

  • 28 petitions pending
  • 1 petition for reconsideration of the rules to implement the government debt collection exemption
  • 1 application for review of the decision to deny a request for an exemption of the prior express consent requirement of the TCPA for “mortgage servicing calls”
  • 1 request for reconsideration of the 10/14/16 waiver of the prior express written consent rule granted to 7 petitioners

New Petitions Filed
  • None

Upcoming Comments
  • Enterprise Communications Advocacy Coalition and ACA International et al. – Two Petitions for Reconsideration of the FCC’s December 30, 2020 Order re-examining TCPA exemptions and focusing on standards of consent, numerical call limitations, and opt-out requirements. Comments were due on April 27, 2021 and reply comments are due on May 7, 2021.
Decisions Released
  • None

​Click here to see the full FCC Petitions Tracker.


Cases of Note

District of Delaware Holds It Can Hear TCPA Claims For Calls Related to Government-Backed Debt Made During Time Such Calls Were Seemingly Permitted by the Statute

Faced with a novel fact pattern, one federal court determined that the Supreme Court’s severing of the government-debt exception means that the statute must be interpreted as if that exception was never part of the law.  As you may recall, the Supreme Court decided AAPC in July 2020, and held that the TCPA’s government debt exception (which was added in 2015) was unconstitutional, severing it from the TCPA. We have previously reported on a number of decisions following AAPC in which district courts have addressed whether they had subject matter jurisdiction over autodialer claims arising between November 2015 and July 6, 2020—during the time that the government-debt exception was part of the law—with some courts concluding that they retained jurisdiction over such claims, and others finding they lacked jurisdiction, because the unconstitutional provision rendered the entire law void during that time. Franklin v Navient, Inc., went further: in it, the District of Delaware held not just that it had subject matter over TCPA claims during that time, but also that a defendant may be liable for calls that fell under the government-debt exception at the time that they were placed.

In Franklin, Plaintiff alleged that he received 86 calls between 2015 and 2017 from Defendant seeking to collect on his student debt, which was backed by the federal government. The government-debt exception exempted from liability calls placed to collect on debts owed to or guaranteed to the federal government. Thus, in 2019, Defendant moved for summary judgment on calls postdating November 2015, when the government-debt exception was added to the statute, which the court granted.

After AAPC was decided, Plaintiff moved the court to reconsider its prior grant of summary judgment for calls placed between November 2015 and 2017, arguing that because AAPC held the government-debt exception was void, the court erred in relying on it. The court agreed. It reasoned that the Supreme Court’s decision severing the government-debt exception applied retroactively, effectively meaning that it was never law. The court explained that judicial decisions act retroactively by default: the Supreme Court has the power to declare what the law “has always meant,” even in instances that predate the ruling.

Defendant argued that holding it liable for calls placed November 2015 and 2017 to collect on debts backed by the federal government would violate due process and the First Amendment. First, it argued that it lacked notice that its calls might violate the act. Although the court described the argument as “intuitive” and “plausible,” it noted that “the [Supreme] Court has roundly rejected arguments just like it,” holding that “[d]ue process does not bar retroactive civil decisions.” That is true both for new civil duties, citing Usery v. Turner Elkhorn Mining Co., 428 U.S. 1 (1976), and especially true when “a court merely recognizes that a civil duty has existed the whole time,” citing Reynoldsville Casket Co. v. Hyde, 514 U.S. 749 (1995). Second, Defendant’s First Amendment argument fared no better. Defendant relied on no authority for the argument that enforcing the Act would violate its First Amendment rights, because, the court explained, “[t]here is none.”

Finally, the court briefly addressed a footnote included in AAPC’s plurality decision, that stated that “no one should be penalized or held liable for making robocalls to collect government debt after the effective date of the 2015 government-debt exception and before . . . th[at] case.” The court stated that it “did not see how” that was possible. A judicial decision severing the government-debt exception had the effect of rendering it void from its inception: a decision that held it unenforceable only after the date of the decision would require treating the decision “like legislation,”—and would also result in the same content discrimination that AAPC sought to eliminate.

Franklin v. Navient, Inc., No. 1:17-cv-1640, 2021 U.S. Dist. LEXIS 74265 (D. Del. Apr. 19, 2021)

Eastern District of Pennsylvania rejects novel interpretation of Internal DNC List Regulations

The Eastern District of Pennsylvania has partially denied a TCPA plaintiff’s motion to amend his complaint, preventing him from asserting a violation of the internal DNC list regulatory requirements based on the plaintiff’s listing of his number on the national DNC registry.

In Perrong v. South Bay Energy Corp., Plaintiff moved to amend his putative class action complaint to include a violation of 64.1200(d)(1). In his proposed pleading, Plaintiff alleged that his number was listed on the national Do Not Call (DNC) list, and yet he was called by Defendants anyway. Section 64.1200(d), however, does not prohibit a caller from calling someone on the National DNC list; rather, it prohibits placing telemarketing calls to someone who has previously requested that the caller not call him. Plaintiff had learned through discovery that Defendants did not maintain an internal DNC, and argued that the fact that his number was on the national DNC translated to a violation of that 64.1200(d)

The court denied the motion to amend as futile, holding that Plaintiff’s argument was unsupported by the statute. By applying canons of statutory interpretation, the court first held that the statutory language was “not ambiguous” and that Plaintiff’s interpretation was erroneous. The court stated that Plaintiff “might be right that Defendants violated the TCPA if they failed to maintain a list of individuals who directed [Defendants] not to call them; however, “because Plaintiff never made such a request, he was not injured by that violation.

Perrong v. South Bay Energy Corp., No. 2:20-cv-05781-JDW, 2021 U.S. Dist. LEXIS 70715 (E.D. Pa. Apr. 13, 2021)

Invitation to Participate in Market Research Survey Not “Advertisement” Under TCPA

In Katz v. Focus Forward, the Southern District of New York dismissed claims against a market research company, holding that the faxes it sent did not, as a matter of law, violate the TCPA. Defendant sent Plaintiff, a professional corporation, two faxes seeking participants for market research studies. The faxes offered a $150 “honorarium” for Plaintiff’s participation in the survey. Plaintiff sued under the TCPA, which prohibits faxing unsolicited advertisements without the TCPA’s required opt-out language.

Defendant argued that the faxes were not “advertisements” under the TCPA, and that therefore they were not subject to the TCPA’s requirements. The court agreed. The TCPA defines an “unsolicited advertisement” as “any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person’s prior express invitation or permission, in writing or otherwise.” The court found that under the plain language of that definition, the faxes were not advertisements because they neither advertised the commercial availability or quality of an property, goods, or services.

Although Plaintiff failed to plead that the faxes were pretext for current or future advertisements, the court considered that argument and held that there was no basis for such a claim. Therefore, the court dismissed the complaint with prejudice.

Katz v. Focus Forward LLC, 2021 U.S. Dist. LEXIS 66861 (S.D.N.Y. Apr. 6, 2021)