TCPA Tracker - September 2019

Recent News

Marshalled by North Carolina Attorney General Josh Stein, New Hampshire Attorney General Gordon MacDonald, and Indiana Attorney General Curtis Hill, attorneys general from all 50 states and Washington, D.C. announced on August 22, 2019 that they reached an agreement with 12 major voice service providers* on eight principles to prevent illegal robocalls and improve enforcement efforts.

The first four principles of the agreement concern the internal operations of voice service providers and ask that they: (1) provide call blocking and notification software free of charge to consumers, (2) implement STIR/SHAKEN, (3) pay attention to network traffic for signs of high-volume traffic consistent with robocall operations, and (4) investigate suspicious calling behavior and patterns. The latter four principles relate to activities involving other carriers and government officials:  (5) confirm a new commercial VoIP customer’s identity by collecting information on them, (6) require traceback cooperation in all new and renegotiated voice transport contracts, (7) direct resources towards completing traceback requests from law enforcement, and (8) maintain open communication and cooperation with state attorneys general. 

In a press release from the same day, FCC Chairman Ajit Pai praised the agreement, saying, ​“These principles align with the FCC’s own anti-robocalling and spoofing efforts.”

*Voice provider signees are AT&T Services, Inc., Bandwidth Inc., CenturyLink, Charter Communications, Inc., Comcast, Consolidated Communications, Inc., Frontier Communications Corporation, Sprint, T-Mobile, U.S. Cellular, Verizon, and Windstream Services, LLC.

Upcoming FCC Consumer Advisory Committee Meeting Will Consider Robocall Working Group Recommendation

On August 16, 2019, the FCC released a public notice announcing that the Consumer Advisory Committee (CAC) will be meeting on Monday, September 16, 2019 from 9:00 a.m. to 1:00 p.m. During this time, CAC’s Critical Calls List/Robocall Blocking Working Group will present to the rest of the committee their recommendations concerning the Third Further Notice of Proposed Rulemaking in Advanced Methods to Target and Eliminate Unlawful Robocalls; Call Authentication Trust Anchor.

FCC Expands Anti-Spoofing Prohibitions to Foreign-Originated Calls, Text-Messaging Services

At its August 1, 2019, Open Meeting, the Commission adopted an order that implements two changes to the FCC’s Truth in Caller ID rules. The changes were required by amendments to the Communications Act, made by the RAY BAUM’S Act of 2018, which strengthened the FCC’s authority over spoofed calls. First, the order revises the Commission’s rules to prohibit persons or entities outside the United States—if the recipient is within the United States—from knowingly causing a caller ID service to transmit or display misleading or inaccurate caller identification information with the intent to defraud, cause harm, or wrongfully obtain anything of value. The existing rules only applied to persons and entities within the United States. Second, the order expands the scope of the communications covered by the rules beyond telecommunications services and interconnected VoIP services to any voice or text messaging service. The order also revises several definitions in the rules to make them more consistent with the statutory language. The new rules will allow law enforcement to seize the domestic assets of those making illegal spoofed calls from outside the United States and work with foreign governments to pursue international scammers.

Alarm Industry Communications Committee Seeks Reconsideration of Call Blocking Declaratory Ruling to Prevent Blocking of Alarm Calls

The Alarm Industry Communications Committee (“AICC”) filed a petition for clarification or for reconsideration of the FCC’s June 7, 2019 call blocking declaratory ruling concerning three issues. First, AICC asks the Commission to clarify that carriers must notify consumers of their inclusion in an opt-out call-blocking program both on a carrier’s website and via direct notification, such as texts, email, or inserts in customer bills. Second, AICC asks the FCC to clarify that calls from alarm companies are the types of emergency communications that carriers must avoid blocking. Third, AICC asks the FCC to clarify that carriers must implement any call-blocking programs in a non-discriminatory fashion with respect to alarm companies that are not affiliated with the carriers.

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

• 34 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)

• none since July 2019

• None since early September 2019

• Henry Schein, Inc. withdraws fax opt-out petition – Henry Schein, Inc. withdrew its June 2015 petition requesting that the FCC declare its fax advertisement opt-out language complied with the TCPA and Junk Fax Prevention Act because ​“The matter prompting the Petition has been resolved.”  

Click here to see the full FCC Petitions Tracker.

Cases of Note

In a noteworthy decision, the Eleventh Circuit Court of Appeals ruled that a plaintiff’s TCPA claim based on the receipt of a single unsolicited text message did not state a real injury in fact because the receipt of one text message does not interfere with privacy in the home. Salcedo v. Hanna involves an allegation based on the plaintiff’s receipt of a single advertising text message from a law firm where the plaintiff had previously been a client. In considering whether the plaintiff stated a viable claim, the court examined legal precedent, the TCPA’s legislative history, Congressional intent. 

The Eleventh Circuit concluded from its review of the TCPA’s legislative history that Congress was concerned about ​“privacy within the sanctity of the home” (not a general desire to minimize any unwanted robocalls) which would not apply to the type of harm that might result from an unsolicited text message. ​“Cell phones are often taken outside of the home and often have their ringers silenced, presenting less potential nuisance and home intrusion.” The court also interpreted the Congressional amendment to allow the FCC to exempt calls to a phone number assigned to cellular service that do not charge the called party as indicative of lesser congressional concern about intrusions from cell phone generally.

Additionally, the Eleventh Circuit reviewed the plaintiff’s claim with respect to traditional torts, emphasizing intrusion upon seclusion, and found that the allegations fell short of the relevant standards of harm. In its decision, the court concluded that the plaintiff’s allegations did not represent a real tangible harm because it involved ​“a brief, inconsequential annoyance,” which it likened to someone briefly waving a pamphlet in your face while walking down the street. The panel unanimously determined that the plaintiff lacked standing to sue. 

First Circuit Rules Combined VoIP-Cellular Phone Service Covered by TCPA

In Breda v. Cellco Partnership d/b/a Verizon Wireless, the First Circuit Court of Appeals determined that the TCPA’s provisions covered the plaintiff’s claim even though the telephone number where the plaintiff received the call was assigned to a hybrid, VoIP and cellular, telephone service and the number was categorized as a wireline number in the Neustar numbering portal.  In this case, the plaintiff alleged that Verizon Wireless violated the TCPA when it made repeated automated calls to plaintiff’s phone number.  Verizon Wireless initially assigned the phone number at issue to plaintiff when she was a customer of the company but the customer later ported the number over to a reseller, Republic Wireless, that offered hybrid phone service.  Since Republic did not have authority to port numbers, plaintiff’s number was ported to Bandwidth, an entity that had authority to provide wireline numbers, and plaintiff’s number was listed as such in the database.

The lower court granted summary judgement in favor of Verizon’s argument that plaintiff’s number is not ​“assigned to a . . . cellular telephone service” as required by the TCPA because the service was not exclusively cellular.  The First Circuit disagreed and found that a service did not have to be exclusively cellular to satisfy the terms of the TCPA, there just has to be a cellular component. In addition, to determine if a number is ​“assigned to” cellular, the consideration is whether the number was used in connection with that kind of service. As a result, the circuit court reversed the lower court’s summary judgment finding.

Sixth Circuit Upholds Decision Holding Text Device Did Not Meet TCPA ATDS Definition

In Gary v. Trueblue, Inc., a Sixth Circuit panel upheld a lower court’s decision to grant summary judgement to the defendant against a suit alleging violation of the TCPA.  The plaintiff alleged that he continued to receive text messages from a service he initially opted into despite revoking his consent and filed a claim under the TCPA.  The plaintiff claimed defendant’s system met the TCPA’s definition of an automatic telephone dialing system (ATDS) because it used a third party system that has the capability to randomly generate and text numbers but the lower court found plaintiff failed to make the link showing how defendant used the third party system for the text service at issue.  Additionally, the lower court determined that plaintiff’s claim that messages sent via a web browser were sent via an ATDS was 1) unsupported by evidence; and 2) the 2015 FCC order cited to which stated that devices that originate texts via a web-based portal was ATDS had been set aside by the D.C. Circuit’s ACA International decision. The Sixth Circuit agreed with the lower court finding that plaintiff did not provide sufficient evidence or information to support his claim that defendant’s system satisfies the ATDS definition in the statute.