TCPA Tracker - October 2019

Recent News

On October 4, 2019, Pennsylvania Governor Tom Wolf signed House Bill 318 amending the Telemarketer Registration Act. The bill: (1) defines a business telephone subscriber and inserts ​“business(es)” into the existing statute, allowing such individuals/entities to, for example, enroll in the do-not-call list, (2) defines a robocall, (3) prohibits telephone solicitation calls on legal holidays, (4) removes the five-year time limit for enrollment on the do-not-call list, and (5) creates legal requirements for the use of robocalls.

The new legal requirements for making robocalls are significant. Telemarketing businesses must explain opt-out procedures at the beginning of the call and make available an ​“automated, interactive voice-activated or key-press-activated opt-out mechanism,” with instructions within two seconds of ​“disclosing the name of the caller and the name of the person or entity on whose behalf the call is being made.” The law requires that the ability to opt-out is available throughout the duration of the call. Furthermore, telemarketing businesses may not require the called party’s written consent as a condition for opting-out, nor may they consider opting-out as the creation of an established business relationship. Finally, robocalls that leave a message on an answering machine or voicemail must provide a toll-free telephone number that, under the same opt-out mechanism requirements described above, can automatically record and add the called person’s number to the caller’s do-not-call list.

The Pennsylvania law goes into effect on December 3, 2019.

On October 2, 2019, California Governor Gavin Newsom signed into law the Consumer Call Protection Act of 2019 (Senate Bill No. 208). The law requires that telecommunications service providers adopt STIR/SHAKEN or ​“alternative technology that provides comparable or superior capability,” to authenticate calls carried over an internet protocol network by January 1, 2021. The bill also authorizes the California Attorney General to request assistance from the California Public Utilities Commission (CPUC) in enforcement proceedings and actions.

FCC Consumer Advisory Committee (CAC) Adopts Call Blocking and Critical Call List Recommendations

On September 16, 2019, the FCC’s Consumer Advisory Committee (CAC) unanimously adopted a set of recommendations for the Commission and service providers as they continue to address unlawful robocalls. The document, which was posted in CG Docket No. 17-59 on September 18, advocates for a consumer-centric design, a widespread public awareness campaign, and a carefully managed critical calls list.

CAC recommends that call blocking services from both wireline and wireless service providers should, among other things, notify consumers upon blocking a call (subject to the FCC’s accessibility requirements), have a dedicated online portal and/or mobile application that allows consumers to view their blocked call log and report false positives, and allow people to opt-out of the service entirely. Providers should make these features available to consumers at no extra cost, CAC says. Furthermore, CAC recommends that service providers invest in personnel training and explore other ways to educate their customers about the call blocking services offered and opt-out instructions. On this matter, however, service providers do not bear sole responsibility. The document includes several outreach recommendations for other stakeholders, including the FCC, the Federal Trade Commission (FTC), state attorneys general, and consumer advocacy groups.

For the critical calls list, CAC recommends that a central authority oversee its development and ongoing maintenance. According to CAC, the list should: (1) be secure and protected against unauthorized access, (2) be narrow and only comprised of government numbers, (3) utilize self-reporting of relevant outbound numbers from emergency entities and ensure the proper vetting of such submissions. In addition, service providers should allow consumers to maintain their own critical calls lists so that important but non-critical-emergency calls are not blocked.

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

• 35 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
• 10 applications for review of fax waiver orders under the Anda progeny (these applications for review were not addressed in the Nov. 14, 2018, Bureau order)
• 1 application for review of the CGB order issued on 11/14/18 eliminating the opt-out language rule for solicited faxes (and 2 oppositions to the application for review)

• Yodel Technologies LLC – Petition for expedited declaratory ruling that the use of soundboard technology does not constitute a prerecorded call prohibited by Section 227(b)(1) of the TCPA or, alternatively, a retroactive waiver for any prerecorded calls made in violation of the TCPA by Yodel Technologies LLC prior to May 12, 2017. (filed September 13, 2019)

• Yodel Technologies LLC – Petition for expedited declaratory ruling that the use of soundboard technology does not constitute a prerecorded call prohibited by Section 227(b)(1) of the TCPA or, alternatively, a retroactive waiver for prerecorded calls made in violation of the TCPA by Yodel Technologies LLC prior to May 12, 2017.
  (Comments due 10/21/19, reply comments due 11/04/19)

• None since June 2019.

Click here to see the full FCC Petitions Tracker.

Cases of Note

In Reed v. Quicken Loans, Inc., the Northern District of Texas dismissed a TCPA claim because the complaint did not adequately allege that the plaintiff was called or texted using an automatic telephone dialing system or ​“ATDS.” In Reed, the plaintiff alleged that the defendant had sent him six unsolicited text messages and placed eight unsolicited phone calls to him with voicemail messages.  Additionally, plaintiff had alleged that defendant ​“violated the [TCPA] through its barrage of calls ... [and] numerous automated text messages to Plaintiff’s private cell phone ... after being expressly instructed in writing to cease all such communications.”  

Despite recognizing the difficulty a plaintiff faces in knowing the type of calling system used without the benefit of discovery, the Court still found that the plaintiff failed to adequately plead the use of an ATDS.  Although the plaintiff had alleged that the text messages were ​“automated,” this allegation did not indicate that the text messages or phone calls were ​“placed with an ATDS that randomly or sequentially generated his number.”  Consequently, the Court dismissed Plaintiff’s TCPA claim.

Court Finds That Defendant Violated Spirit But Not Letter of TCPA

In DeCapua v. Metro. Prop. And Casualty Ins. Co, the District of Rhode Island concluded that a TCPA claim should be dismissed because the texting system did not qualify as an ATDS. The plaintiff alleged that the equipment at issue was an ATDS and was used by the defendant to send thousands of spam texts in violation of the TCPA. He contended that the defendant’s system ​“store[d] numbers generated randomly or sequentially using basic features of Microsoft Excel, a common software program used, among other things, to store data and interact with external platforms.”

Relying on summary judgment decisions in other cases analyzing the same equipment, the Court held that because human intervention is required at the point in time at which the number is dialed, ​“the system was not an ATDS because it could not send the spam texts in issue without human intervention.”  Although this decision was reached at the pleading stage, the plaintiff had filed a detailed Complaint that permitted the Court to reach the same conclusions reached by other courts under Rule 12(b)(6).

District of Delaware Finds the Government-Backed Debt Collection Exemption Unconstitutional

In Perrong v. Liberty Power Corp. L.L.C., the District of Delaware, following the lead of the Fourth and Ninth Circuit Courts of Appeals, held that the 2015 government-backed debt collection exemption of the TCPA violated the First Amendment.  Assessing the statute with strict scrutiny, the District of Delaware found the exemption to be fatally under-inclusive as it allows a substantial number of intrusive calls, undercutting the asserted goals of the TCPA.  As a remedy, similar to the Fourth and Ninth Circuit Courts of Appeals, the Court opted to sever the exemption and leave the remainder of the TCPA intact.  According to the Court, the version of the TCPA without the debt-collection exemption has been upheld as a valid time, place, or manner restriction by several courts throughout the country.  The Court was not persuaded that removing the exemption would somehow render unconstitutional a statute that had been repeatedly upheld as constitutional in its previous form.