TCPA Tracker - November 2017

Recent News

FCC Adopts Robocall Blocking Order

On November 16, 2017, the FCC Commissioners voted to adopt a Report and Order that expressly authorizes voice service providers to block certain types of robocalls that falsely appear to be from telephone numbers that do not or cannot make outgoing calls.  Specifically, the Report and Order adopts rules authorizing providers to block calls in the following instances: (1) when the subscriber to a particular telephone number requests blocking of calls appearing to be from that number; (2) when the Caller ID can’t be valid; or (3) if the call appears to be from an invalid number (for example, a number with an area code that doesn’t exist), a number that has not been allocated to a provider, or a number allocated to a provider but not currently in use.  The Report and Order also prohibits voice service providers from including 911 emergency calls in their blocking and encourages providers to establish a simple way to identify and fix blocking errors. 

Comcast Asks for Relief from ​“Reassigned Number” Liability

On November 2, 2017, counsel for Comcast filed a notice of a meeting with staff for FCC Chairman Ajit Pai to discuss issues related to ​“reassigned number” TCPA liability that have arisen since the adoption of the FCC’s 2015 TCPA Order.  Specifically, Comcast noted that the ​“constructive knowledge” approach to reassigned numbers interfered with Comcast’s ability to contact customers for a variety of reasons, including confirming service appointments, providing notice of outages, and discussing billing issues.  To alleviate these ​“unintended consequences,” Comcast requested that the FCC ​“issue a declaratory ruling, on its own motion, that companies who make calls to wireless numbers provided by their customers will not be held liable under the 2015 TCPA Order if they: (1) have a reasonable belief that they had consent to make the call; and (2) did not have actual or constructive knowledge of reassignment prior to or at the time of the call, as actual and constructive knowledge are generally understood.”  The FCC has not yet responded to this request, and the ​“reassigned number” issue remains pending before the D.C. Circuit Court of Appeals as part of its review of the 2015 TCPA Order.

Members of Congress Write to Chairman Pai in Support of Health Care-Related TCPA Clarification

On October 13, 2017, a bipartisan group of 17 Members of Congress sent a letter to FCC Chairman Ajit Pai asking for an update on the status of a petition for clarification of the 2015 TCPA Omnibus Declaratory Ruling and Order filed by Anthem, Inc., Blue Cross Blue Shield Association, Wellcare Health Plans, Inc., and the American Association of Healthcare Administrative Management.  The petition has been pending since July 2016, and specifically seeks to clarify two items: (1) that the provision of a phone number to a ​“covered entity” or ​“business associate” (as those terms are defined under HIPAA) constitutes prior express consent for non-telemarketing calls allowed under HIPAA for the purposes of treatment, payment, or health care operations; and (2) that the term ​“healthcare provider” in paragraphs 141 and 147 of the 2015 Order encompasses ​“HIPAA covered entities and business associates.”  The Members agree with the petitioners’ position that these clarifications are necessary to harmonize the TCPA and HIPAA.  The Members further comment that “[t]hese helpful, important non-telemarketing communications can be critical safeguards to reaching underserved populations and supporting more effective, efficient health care,” and ​“also promote treatment adherence and prevent lapses in health insurance coverage.”  The Members encouraged the FCC ​“to finish its review and inform all concerned of what clarifications it proposes” within 90 days.

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
  • 22 (+9 seeking a retroactive waiver of the opt-out requirement for fax ads)
  • 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”
  • 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

New Petitions Filed
  • Insights Association and AAPOR – (Filed 10/30/17)
  • ContextMedia, Inc. d/b/a Outcome Health – seeking a declaratory ruling that an unknown and inadvertent technical error is exempt from TCPA liability and entitled to safe harbor relief (Filed 10/20/17)

Upcoming Comments
  • Credit Union National Association – requesting that the Commission create an ​“established business relationship” exemption and/or exemption for calls and texts that are without charge to the called party that is applicable to credit union calls to members’ wireless phones. (Replies due 11/21/17)
  • ContextMedia, Inc. d/b/a Outcome Health – seeking a declaratory ruling that an unknown and inadvertent technical error is exempt from TCPA liability and entitled to safe harbor relief (Comments Due 11/27/17; Replies due 12/12/17)

Decisions Released
  • Advanced Methods to Target and Eliminate Unlawful Robocalls, Report and Order (adopted 11/16/17)

Click here to see the full FCC Petitions Tracker.

Cases of Note

2nd Circuit Denies Rehearing on Consent Revocation Case

On October 20, 2017, the Second Circuit denied plaintiff Alberto Reyes, Jr.’s petition for panel rehearing or rehearing en banc in the matter Reyes v. Lincoln Automotive Financial Services.  In the one-page decision, the Court declined to rehear Mr. Reyes’ challenge to the Court’s three-judge panel decision that came out on June 22, 2017.

In June, the Second Circuit held that ​“the TCPA does not permit a party who agrees to be contacted as part of a bargained-for exchange to unilaterally revoke that consent.”  In so holding, it was determined that Mr. Reyes was unable to revoke his consent to be called under the TCPA because the lease agreement that he signed contained a provision stating that he consented to be contacted ​“by manual called methods, prerecorded or artificial voice messages, text messages, emails and/or automatic telephone dialing systems.”  Applying principles of contract law, the Second Circuit held that Mr. Reyes’ consent had become part of the contracted business transaction and revocation of such consent would require ​“the mutual assent of every contracting party.”
Mr. Reyes’ petition claimed that Second Circuit’s decision was in conflict with Third Circuit and Eleventh Circuit decisions that held consumers may revoke consent under similar circumstances.  The Second Circuit’s one-page decision did not explain their reasoning for denying Mr. Reyes’s petition.  Mr. Reyes’ next course of action, if he so chooses, would be to ask the U.S. Supreme Court to hear the case.

Update: Ninth Circuit Denies LA Lakers’ Petition for Rehearing En Banc

In September, we reported that the Ninth Circuit affirmed a dismissal of the Los Angeles Lakers’ lawsuit against Federal Insurance Co. for the insurance company refusing to indemnify the LA Lakers under the team’s D&O policy for a TCPA claim.  See L.A. Lakers Inc. v. Fed. Ins. Co., No. 15-55777 (9th Cir. Aug. 23, 2017).  The decision was split 2 to 1, holding that a TCPA claim is ​“inherently an invasion of privacy claim,” as the statute states twice that it is intended to protect privacy rights, and was therefore excluded from the Lakers’ insurance coverage. 

In October, we updated that the nonprofit group United Policyholders filed an amicus brief in support of the LA Lakers.  According to the amicus brief, because there was no explicit TCPA liability exclusion in the policy (as other insurers have done), Federal Insurance could not deny coverage. 

On October 31, 2017, the Ninth Circuit issued a ruling that the rehearing en banc was denied.  Specifically, Judges Smith and Murphy voted to deny the petition and Judge Tallman, the dissenting opinion in the August decision, voted to grant the petition.  The full court was advised on the petition and no judges requested a vote on whether to rehear the petition.

The initial lawsuit stemmed from a November 2012 complaint by David Emanuel, who alleged that the Lakers violated the TCPA by sending him autodialed text messages after he used his mobile phone to send a message to the scoreboard during a Lakers game.  The Lakers settled with Mr. Emanuel in 2014, after defending the lawsuit before the U.S. District Court for the Central District of California.