The TCPA prohibits telemarketing calls to be placed using an ATDS without the requisite level of prior consent. Thus, the definition of what technology qualifies as an ATDS is often a fundamental, threshold question upon which TCPA litigation turns. Prior to 2015, the FCC had offered various, sometimes vague, interpretations of the term. In 2015, the FCC offered an expansive definition, which was set aside in March 2018 in the ACA International decision. While the issue has been before the FCC on remand for over two years now, courts nevertheless engaged in their own analysis of the statute, resulting in a broadening Circuit split on how the law is interpreted and applied and divergent outcomes based on the court in which the case is filed. Now the Supreme Court is poised (potentially) to resolve that dispute.

DEFINITION OF AN ATDS

Since the March 2018 decision of the Court of Appeals for the D.C. Circuit in ACA International set aside the FCC’s overbroad and expansive definition of an ATDS, two distinct interpretations of an ATDS have emerged. In Marks v. Crunch San Diego, the Ninth Circuit held that any equipment that dials telephone numbers from a stored list qualifies as an ATDS under the TCPA. That expansive approach threatens to encompass ordinary smartphones on the market within the TCPA’s ambit. This approach is also employed by the Second Circuit. In contrast, the Third, Seventh, and Eleventh Circuits have opted for a narrower, more textually honest and logical interpretation, that requires a showing that equipment has the present capacity to generate numbers using randomly or sequentially and dial them. (Arguably, the D.C. Circuit’s decision also called for an interpretation closer to the Third, Seventh and Eleventh Circuit interpretations). District Courts in the remaining Circuits (as well as some where the Circuit Courts have spoken) have generally (but inconsistently) adhered to one of these two approaches. Some of our prior discussions of these issues can be found here and here.

FACEBOOK SEEKS AN END TO TCPA CONFUSION

In Facebook, Inc. v. Noah Duguid, et al, Case No. 19-511 (2020), plaintiff Noah Duguid alleges that defendant Facebook had contacted him via text messages without appropriate levels of consent using an ATDS, as that term is defined under the TCPA. Mr. Duguid is not a Facebook customer and alleges that he received repeated login notification text messages from Facebook. Plaintiff alleges that he never provided the company with his cellphone number, much less prior express written consent to be contacted by text. Plaintiff’s original complaint was filed in the Northern District of California in March 2015 and dismissed without prejudice for failure to properly allege that an ATDS was used to send the texts at issue. In his Amended Complaint, Duguid added factual allegations that Facebook used an ATDS by maintaining a database of numbers on its computer and transmitting text message alerts to selected numbers from its database using an automated protocol.

Facebook again moved to dismiss Duguid’s allegations arguing that the TCPA was unconstitutional and that Duguid failed to plead the use of an ATDS. On February 16, 2017, the District Court granted Facebook’s motion to dismiss, finding the ATDS allegations were insufficient. Because of that finding, the court never reached the constitutional question. The court reasoned that Duguid’s ATDS allegations “strongly suggested direct targeting rather than random or sequential dialing,” which did not indicate the use of an ATDS. Importantly, the District Court rendered its opinion before the Ninth Circuit’s interpretation of the ATDS definition in Marks v. Crunch San Diego in September 2018.

On June 13, 2019, the Ninth Circuit reversed the lower court’s dismissal. Applying the Marks standard, the Ninth Circuit reasoned that Duguid had sufficiently alleged that Facebook used an ATDS by alleging the equipment “had the capacity to store numbers to be called and to dial such numbers automatically.” The Ninth Circuit separately addressed Facebook’s constitutional challenge to the TCPA and agreed that, although the TCPA included content- and speaker-based restrictions on speech, the overall statute could be salvaged by severing what it saw as the most offensive aspect—the government debt exception.

ISSUES BEFORE THE COURT

Facebook appealed and in its petition to the Supreme Court presented both the constitutional challenge and definitional question for review.

On July 6, 2020, the Supreme Court upheld the constitutionality of the TCPA in William P. Barr et al. v. American Association of Political Consultants et al., Case No. 19-631 (2020), thus mooting the constitutional challenge in Facebook’s petition. Our analysis of that decision can be found here.

On July 9, 2020, three days after it released its decision in Barr, the Supreme Court granted certiorari on the following question: Whether the definition of ATDS in the TCPA encompasses any device that can “store” and “automatically dial” telephone numbers, even if the device does not “us[e] a random or sequential generator”?

CONCLUSION

The Supreme Court’s resolution of this circuit split has the potential to forever change business communications by making it more or less difficult for businesses to reach their customers. As noted, a threshold question in TCPA litigation is whether equipment used to originate a call or text is an ATDS. The D.C. Circuit, in remanding the FCC’s 2015 expansive definition, noted that definition’s “eye-popping sweep.” Just how far the 29-year-old TCPA’s definition should reach into modern dialing technology has been a central question in litigation since the D.C. Circuit remand. How the Supreme Court addresses this could affect the methods businesses use to provide notifications and reminders to customers as well as how they obtain new customer and collect debts.

In addition to resolving the question of an ATDS, the Supreme Court’s acceptance of Facebook’s petition has other implications. In the short term, companies and practitioners are likely to see stays across the robust and active TCPA docket as lower courts await direction on this core (often threshold) legal question from the Supreme Court. While the decision in ACA International returned the ATDS definition to the FCC for consideration, the Supreme Court’s grant also makes it less likely that the FCC will take any additional affirmative steps on the definition of an ATDS until the Facebook case is decided.

The Supreme Court’s next term opens on October 5, 2020, and oral argument will be scheduled for a date sometime thereafter. A decision can be expected to be published sometime between the argument and when the terms recesses in late June/July 2021.

In the first ruling, P2P Alliance, the Bureau ruled that an automatic telephone dialing system (“ATDS”) is not determined by whether the equipment has the capability to send a large volume of calls or texts in a short period of time. Instead, the Bureau, while recognizing that the Commission’s interpretation of the ATDS definition remains pending, ruled that “whether the calling platform or equipment is an autodialer turns on whether such equipment is capable of dialing random or sequential telephone numbers without human intervention.” The Bureau also provides an illuminating discussion of the so-called “human intervention” element of prior FCC statements regarding autodialers.

In the second ruling, Anthem, Inc., the Bureau denied a petition to exempt certain healthcare-related calls from the TCPA’s consent requirements. In this order, the Bureau breaks less new ground and instead reiterates that prior express consent must be obtained before a call (or text) is made and that the supposed value or “urgency” of the communication does not necessarily make it permissible.

Besides these two petitions, the Commission has nearly three dozen petitions pending before it on a variety of matters relating to exemptions from the TCPA’s consent requirements, the collection and revocation of consent, the “junk fax” provisions, and other questions raised by the flood of TCPA class action litigation in the last five years. If the FCC begins addressing these other pending petitions, the course of TCPA class action litigation could change significantly.

In March 2018, the United States Court of Appeals for the D.C. Circuit issued a landmark rebuke of the FCC’s interpretation of the TCPA. The case, ACA International v. FCC, reviewed a 2015 Omnibus Declaratory Ruling on a variety of matters, the most notable of which was the FCC’s expansive interpretation of an “automatic telephone dialing system” (“ATDS”), the use of which triggers therobo TCPA’s prior express consent requirements and private right of action provisions. In ACA International, the court found the FCC’s interpretation “impermissibly broad” and remanded the case to the FCC for further consideration.

Since that time, the FCC has taken comment twice on the ACA International remand, but FCC Chairman Pai has focused the agency’s efforts on identifying and reducing illegal robocalls rather than addressing the remand. Chairman Pai has repeatedly said that unwanted automated calls is a top consumer complaint and he has pursued a multi-faceted approach to preventing or blocking those calls before they reach consumers.

The Commission has

• authorized voice service providers to block incoming calls that “reasonable call analytics” identify as likely illegal calls,
• mandated that service providers implement a call authentication framework to prevent unlawfully spoofed calls,
• directed specific service providers to block certain calls or have their own calls blocked by other providers,
• proposed multiple fines exceeding $100 million each for illegally spoofed calls, and
• authorized a comprehensive database to identify when telephone numbers have been reassigned from a subscriber who may have given consent to a new subscriber.

The Anthem and P2P Alliance Rulings

Against this backdrop, the flood of TCPA class action cases has powered a rising tide of petitions for declaratory rulings addressing specific aspects of the TCPA’s requirements, from when consent is needed, how it may be obtained, and how it may be revoked. At Kelley Drye, we have chronicled these developments in our monthly TCPA Tracker and its accompanying FCC Petitions Tracker of the nearly three dozen pending petitions. The total number of petitions has risen slightly over time, as new petitions have modestly outnumbered decisions issued by the Commission.

P2P Alliance Petition (Two-Way Texting With Manual Intervention). In May 2018, the P2P Alliance, a group that represents providers and users of “peer to peer” text messaging services, sought a declaratory ruling that peer to peer messaging services did not involve an ATDS and thus were not subject to the restrictions on ATDS calls/texts contained in the TCPA. The petition sought a ruling with respect to text messaging services that enable two-way text communication, requiring a person to manually send each message. Although the Bureau declined to rule with respect to any specific platform – citing a lack of sufficient evidence regarding the how the platforms operate – the Bureau issued a ruling with several important clarifications.

First, the Bureau ruled that the ability of a platform or equipment to send “large volumes of messages” is not probative of whether that platform or equipment constitutes an ATDS under the TCPA. The Bureau declared that “whether the calling platform or equipment is an autodialer turns on whether such equipment is capable of dialing random or sequential telephone numbers without human intervention.”

This conclusion effectively puts to rest ambiguous statements in some prior orders that TCPA plaintiffs had argued brought any high-volume calling platform within the scope of the TCPA. Furthermore, the Bureau’s conclusion appears most consistent with decisions by several U.S. Courts of Appeal that have ruled an autodialer must employ a random or sequential number generator to meet the TCPA’s definition of an ATDS. The Bureau noted, however, that the “details” of the interpretation of an ATDS were before the Commission in ACA International so, until the Commission addressed that issue, the Bureau was relying solely on “the statutory definition of autodialer.”

The Bureau’s ruling contains an illuminating discussion of the so-called “human intervention” element of prior FCC statements regarding autodialers. Per the Bureau’s ruling, “If a calling platform is not capable of dialing such numbers without a person actively and affirmatively manually dialing each one, that platform is not an autodialer.” The Bureau explained the “actively and affirmatively” dialing standard as requiring a person to manually dial each number and send each message one at a time. Use of such technologies is not an “evasion” of the TCPA, the Bureau commented, because the TCPA “does not and was not intended to stop every type of call.”

Thus, while the full contours of the ATDS definition are still to be defined by the Commission, the Bureau’s P2P Alliance ruling helps to clarify that an “active and affirmative” manual process for sending calls or messages removes a platform or piece of equipment from the ambit of the TCPA. This ruling could buttress many district court rulings that have found sufficient human intervention in the operation of many calling or texting platforms.

Anthem Petition (Prior Express Consent for Healthcare-Related Calls). The Anthem petition addressed by the Bureau was filed in June 2015, one month before the FCC released the Omnibus Declaratory Ruling addressed in ACA International. (Anthem has a more recent petition addressing post-Omnibus order issues that remains pending.) In the June 2015 petition, Anthem asked the Commission to create an exemption for informational healthcare-related calls/texts initiated by healthcare providers and sent to existing patients, arguing that such communications were beneficial to patients and could be protected by an opt-out process it believed the Commission was then considering for ATDS calls. The Commission received limited comment in September 2015 (while the ACA International appeal was being litigated) and has received virtually no filings discussing the petition since that time.

In the ruling, the Bureau denied virtually all of Anthem’s requests, emphasizing instead the TCPA’s requirements for prior express consent for ATDS calls. Specifically, the Bureau ruled that “makers of robocalls generally must obtain a consumer’s prior express consent before making calls to the consumer’s wireless telephone number.” (emphasis in original). It rejected Anthem’s request for an exemption permitting such calls, subject to opt-out, and repeated that the “mere existence of a caller-consumer relationship” does not constitute consent. Importantly, however, the Bureau affirmed prior statements that a consumer who has knowingly released their phone number for a particular purpose has given consent to receive calls at that number.

To the extent that the Anthem petition sought an exemption based on the “urgency” of healthcare-related communications, the Bureau declined to create such an exception, emphasizing, however, that the “emergency purposes” exception could apply to the extent the calls/texts satisfied the Commission’s rules and its recent COVID-19 Declaratory Ruling.

In the end, the ruling likely will not change the status quo for calls and texts being made today. The Bureau emphasized previous rulings requiring prior express consent and endorsed previous statements about how such consent may be obtained. Further, the Bureau affirmed the “emergency purposes” exception, although declining to expand its scope. Thus, entities making calls or texts following prior FCC guidance should not need to make any changes as a result of the Anthem ruling.

Looking Ahead

These decisions are not the broad rulings that many hoped for when ACA International was remanded to the FCC in March 2018. Chairman Pai was highly critical of the 2015 Omnibus order from the FCC (from which he dissented) and welcomed the ACA International decision. He has focused the agency on reducing unwanted calls prior to addressing the legal interpretations called for by the remand. Now, however, with those actions at an advanced stage and with his expected time as Chairman of the FCC about to end, many are wondering if the Pai Commission will revisit the ATDS definition, revocation of consent, and safe harbor questions remanded to it. Even if it does not, however, the Commission has nearly three dozen other petitions still pending, which could provide needed guidance on discrete issues that have arisen in TCPA litigation.

We don’t know at this time which way the FCC is likely to go, or even if it will address more TCPA issues during Chairman Pai’s tenure, but enterprises and service providers should watch the FCC closely over the next few months.

Kelley Drye continues to closely monitor this, and other TCPA developments. Click here to read our advisory and summary of the Pallone-Thune TRACED Act. You can find additional coverage at Kelley Drye’s Legal Download, where Partner Steve Augustino discusses what an illegal call really is, highlights of the TRACED Act, and what’s next for the FCC.

Be sure to subscribe to Kelley Drye’s Full Spectrum podcast, which features our “Inside the TCPA” series, and check out our monthly TCPA Tracker newsletter, which helps you stay current on TCPA (and related) matters, case developments and provides an updated comprehensive summary of TCPA petitions pending before the FCC.

The irony of John Oliver making robocalls in order to protest robocalls is rather funny. But, it raises the question – are these calls legal? The fact that the calls appear to be lawful – and would be legal regardless of the action Oliver called for in the program – highlights that there is an important distinction between illegal calls and unwanted calls. In the end, Oliver’s segment demonstrates some of the problems with modern efforts to apply the Telephone Consumer Protection Act (“TCPA”), a statute that was adopted well before the proliferation of cell phones in America, and seems to deter many legitimate calls while not sufficiently stopping scam calls.

Under the TCPA, it is unlawful to place an autodialed or a pre-recorded message call to certain phones without consent from the called party. Each of these elements – whether the call is autodialed or contains a pre-recorded message, the phone to which the call is made and whether consent is obtained – are relevant to determining the legality of any specific call. This makes for a complex, fact-based analysis as to whether any calling campaign is lawful or not.

The definition of an “automated telephone dialing system” or “ATDS” is one of the primary issues before the FCC today. An ATDS is defined in the statute as a device with the capacity (a) “to store or produce telephone numbers to be called, using a random or sequential number generator” and (b) “to dial such numbers.” The FCC over the years has taken an ever-expanding view of what falls within the scope of an ATDS, which has created significant uncertainty and inconsistency in federal courts that have jurisdiction over complaints alleging violations of the TCPA. The inconsistency and uncertainty has hampered legitimate efforts to provide information beneficial to consumers, and has led to a steady stream of petitions for clarification to the FCC itself.

Most recently, in 2015, the FCC adopted a new and even broader definition of ATDS that turned on a device’s “capacity” to function as an autodialer. Specifically, the FCC defined equipment as an autodialer if it contained the potential “capacity” to dial random or sequential numbers, even if that capacity could be added only through specific modifications or software updates (so long as the modifications were not too theoretical or too attenuated). Under this revised interpretation, any equipment that could be modified to dial numbers randomly or sequentially would be an ATDS – and therefore subject the caller to potential liability under the statute.

The Court of Appeals for the D.C. Circuit, which was asked to review this definition, was troubled by the “eye-popping” reach of the FCC’s interpretation, finding that it could be applied to any smartphone, and found that such a reach could not be squared with Congress’ findings in enacting the TCPA. The Court observed that the FCC’s interpretation was “utterly unreasonable in the breadth of its regulatory [in]clusion.” It rejected the FCC’s justification that a broad reach was necessary to encompass “modern dialing equipment,” concluding that Congress need not be presumed to have intended the term ATDS to apply “in perpetuity” and citing paging services as an example of TCPA provisions that have ceased to have practical significance. The Court also found that the confusion over the term “capacity” as it relates to the ATDS definition was multiplied by the FCC’s insufficient explanation of the requisite features that the covered ATDS equipment must possess. The Court set aside the prior interpretation and handed the issue back to the FCC for further analysis and explanation. In the year since that decision, the FCC sought comment on how to respond to the D.C. Circuit’s ruling and appears to be close to issuing a decision on the remanded issues. (As we have explained previously, Chairman Pai’s dissent to the 2015 ATDS definition may be indicative of how the FCC will approach the issue under his leadership.)

Which brings us back to John Oliver. Apparently concerned that the FCC would narrow the definition of ATDS, Mr. Oliver decided to take to the phones to call the FCC. And he is. He announced during his show that he had set up a program that would automatically dial each of the five FCC commissioner’s offices every 90 minutes and play a satirical pre-recorded message urging them to take action to stop robocalls.

But are these calls legal? Actually, it is very likely that they are. Oliver is sending a call containing a pre-recorded message, which satisfies the first element of the TCPA’s applicability. (The calls likely were sent with an autodialer too.) Because Oliver is calling the FCC’s office numbers – which are non-residential landline phones – those calls actually are not affected by the TCPA or the current definitional issue for the FCC. As consumers receiving political robocalls know, calls to landlines don’t require prior consent because the TCPA’s restrictions on the use of an ATDS or pre-recorded message don’t apply for landlines unless a call “introduces an advertisement or constitutes telemarketing.”

Further, the issue of revocation of consent to receive autodialed calls also does not come into play. Oliver spent some time on this show criticizing the “fine print” that some parties use for revoking consent to receive calls. However, Oliver’s explanation that the FCC could “revoke” consent for his calls by sending a certified letter to an address “buried somewhere within the first chapter of Moby Dick” that was quick-scrolled across the screen at the end of the episode, while entertaining, had no legal significance. (And, in any event, the FCC’s 2015 conclusion that consumers may “revoke consent at any time and through any reasonable means” was upheld by the D.C. Circuit upon review.) Put simply, consent is not required for the calls that Oliver is making, and revocation of consent similarly is not relevant to the calls. Nor does the TCPA limit the number or frequency of calls, so the 90-minute intervals for his calls do not amount to a violation of the statute. Finally, Oliver rightly observed during his segment that the National Do Not Call Registry only applies to telemarketing calls, so even if the FCC commissioners registered their office phone numbers on the National Do Not Call Registry, Oliver’s calls to them would not be unlawful.

What does it all mean? In part, it means that John Oliver was taking a bit of comedic license in order to be funny (which he is of course entitled to do). But more deeply, the stunt demonstrates that the TCPA isn’t really about unwanted calls, even though some will talk about the Act as if it were. Too often, the frustration of consumers is directed to unwanted calls when the proper question under the TCPA is whether calls are illegal. Moreover, an autodialed call is not necessarily unwanted, and consumers may be less concerned with how the call is placed than they are with its content. Nor are calls placed without the consent of the recipient necessarily illegal. This is true of Oliver’s calls to the FCC, but also of emergency calls, free messages from your wireless carrier and certain health-related calls, areas where the FCC has carved out exceptions to the consent rules.

Further, one lesson here is that, unlike net neutrality and other issues that are highly contentious and divisive, everyone seems to be relatively on the same side when it comes to robocalls. John Oliver and Chairman Pai would almost certainly agree that additional steps to prevent scam calls – like someone impersonating the IRS or falsely stating that a consumer has won a free cruise – are needed. And to be fair, the FCC is taking actions aimed at reducing these calls, such as allowing voice service providers to block calls from invalid, unallocated, and unassigned numbers before they ever reach a consumer’s phone, supporting development of the industry-led call authentication framework to combat deceptive spoofing, and voting to create a single, nationwide database for reporting number reassignments in order to reduce calls placed in good faith to the wrong party. But the public debate needs to be clearer – the key is figuring out whether what’s being done is effective at stopping illegal calls. Inflaming the public over every unwanted call does not help advance a workable solution to the real problem.

A Notice of Inquiry is used to gather general information on a topic, before specific rules are proposed. Here, the NOI targets information on options for establishing a database of reassigned telephone numbers.

Feasibility of Reporting Reassigned Numbers

The NOI suggests that approximately 35 million telephone numbers are “disconnected and aged” each year, but seeks comment on the quantity of telephone numbers that are reassigned, including the type of service involved in reassignments and over what time period reassignments are made. The NOI next seeks comment on the costs and benefits of voice service providers reporting reassigned number information. It suggests that providers would not be “greatly burdened” by such reporting, but seeks feedback on how the Commission “can reduce the burden on smaller providers, including by extending implementation timelines.”

Safe Harbor Protection for Callers

Database Issues

The Road Ahead

The opinion is based on the Court’s statutory interpretation of the Junk Fax Protection Act of 2005 (the “Act”). After examining the relevant language of the Act, which prohibits the sending of unsolicited fax advertisements, and contains an exception allowing certain unsolicited fax advertisements, provided they contain an appropriate opt-out notice, the Court found that the text of the Act provided a “clear answer” to the question of the FCC’s jurisdiction with regard to solicited fax advertisements. In particular, according to the Court of Appeals: “Congress has not authorized the FCC to require opt-out notices on solicited fax advertisements. And that is all we need to know to resolve this case.” As such, the Court of Appeals did not need to give deference to the FCC’s decision, pursuant to Chevron U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 & n. 9 (1984).

The Court rejected the FCC’s reasoning that its authority to regulate solicited faxes derived from its authority to define the phrase “prior express permission” in the Act. The FCC had reasoned that because it reasonably defined the term “prior express permission” to mean that such permission lasted only until revoked, it was also within the FCC’s authority to require that all fax advertisements contain a means to revoke that permission. The Court found this argument illogical and unpersuasive.

The Court further rejected the FCC’s view that it could take any action, so long as Congress had not prohibited such action. “That theory has it backwards … The FCC may only take action that Congress has authorized.” (emphasis in original).

Finally, the Court rejected the FCC’s position that requiring opt-out notices for all fax advertisements was “good policy.” The Court stated: “The fact that the agency believes its Solicited Fax Rule is good policy does not change the statute’s text.”

After the decision was released, both Chairman Pai and Commissioner O’Rielly (both of whom dissented from the order) praised the decision and pledged that future FCC decisions would adhere to the limits of the Commission’s statutory authority.

In sum, this is good news for companies facing TCPA class actions based on the failure to include opt-out language in fax communications. The D.C. Circuit Court of Appeals has confirmed that if a fax recipient has consented to receive the fax in question, the FCC may not require companies to include specific language in the facsimile (i.e., an opt-out provision). Moreover, because the ruling concludes that the FCC has no jurisdiction over solicited faxes, other regulations applicable to such faxes would be foreclosed as well.

Chairman Pai is a supporter of the Telephone Consumer Protection Act (TCPA or Act), the federal statute aimed at limiting the number of telemarketing calls that consumers receive. However, he was highly critical of the FCC’s interpretation of the Act under his predecessor. Notably, then-Commissioner Pai issued a scathing dissent to the Commission’s 2015 omnibus TCPA Declaratory Ruling and Order, which in his view, improperly expanded the definition of an “autodialer” and imposed a near-strict liability standard by adopting the one-call safe harbor for calls to reassigned phone numbers. Chairman Pai also dissented in part from the Commission’s determination in a July 2016 declaratory ruling that federal contractors are not persons under the Act and therefore not subject to TCPA liability. In that dissent, he stated that the Commission’s interpretation contradicts the plain meaning of the statute, and “it is odd to suggest that a contractor’s status as a ‘person’ could switch on or off depending on one’s behavior or relationship with the federal government.” Less than a month later, he likewise dissented from the Commission’s order adopting rules to implement a new government debt collection exemption to the TCPA, on the basis that the restrictions the FCC imposed contravened Congress’s intent in creating the exemption.

During his remarks on Friday, Chairman Pai said “the problem is only getting worse and that's why I hope the Commission will take aggressive action, hopefully with your counsel, to end it.” He did not detail any particular initiatives that he plans to undertake to address the issue of unlawful telemarketing calls. However, we anticipate that his approach will focus more on industry collaboration rather than unilateral action by the Commission. Some ideas for which he suggested he might seek industry input include establishing a safe harbor for carriers so they can block spoofed calls from overseas without fear of liability and developing a reassigned number database to help legitimate callers avoid dialing the wrong number. Chairman Pai also noted that the Commission may consider overturning the federal contractor exemption in order to “close a potential loophole in [the Commission’s] robocalling regulations.”

We will continue to monitor the FCC’s TCPA-related actions in the coming months. Check back here for any updates.

The Chairman’s statement comes one week after the FCC’s Consumer and Governmental Affairs Bureau (CGB) hosted a webinar for consumers entitled “How to Deal with Robocalls.” The hour-long webinar was broken out into the following segments:

(1) A discussion on the FCC’s recent TCPA actions. This included the adoption of rules in August to implement the federal debt collection exemption and the July order clarifying how the TCPA would be applied to calls and texts from schools and utility companies in certain instances.

(2) A presentation of the Enforcement Bureau’s perspective on TCPA issues. Staff noted that TCPA enforcement priorities have shifted over time, depending in part on information received in consumer complaints. Right now, they are focused on spoofing, and spam text messaging is an increasing area of concern.

(3) An overview of the FCC’s technical efforts to reduce robocalls. The FCC is working with the industry, through initiatives such as the Robocall Strike Force, to develop authentication standards to address spoofing issues, as well as other technical solutions to reduce the number of autodialed calls consumers receive.

First, the Bureau denied Kohll’s contention that the faxes were not advertisements. The order finds that because “the primary purpose of the faxes is to sell flu vaccines rather than any informational purpose,” the Kohll’s faxes were advertisements. In particular, the order explained that the faxes listed a price range for the flu vaccines, finding that “the primary purpose of including price will almost always be to convince the fax recipient that the price for the product or service is reasonable and that a purchase should be considered.” CGB also considered the amount of space on the faxes that was used for advertising content rather than non-advertising information. The order concluded that the “amount of space devoted to the commercial availability of Kohll’s flu vaccination service and instructions for getting a free price quotation show that the faxes are not bona fide informational communications.”

Next, the order rejected Kohll’s argument that the FCC should find that its faxes are exempt from the TCPA as healthcare-related messages that are subject to HIPAA. CGB stated that the Commission’s previous healthcare exemptions were narrow and expressly permitted under the TCPA, but that “Kohll’s has not offered any basis for extending the previously granted exemptions for healthcare-related messages to its unsolicited advertisement faxes.” The order also refuted Kohll’s claim that the application of the healthcare exemption to phone calls and text messages but not faxes violates the First Amendment, noting that the previous exemptions “were limited to calls that did not constitute unsolicited advertisements,” and therefore the Commission “afford[ed] identical treatment to the various types of communication.”

Finally, the Order denies Kohll’s request for a retroactive waiver of the FCC’s fax advertisement rules, finding that “Kohll’s does not state any special circumstance that would warrant deviation for the rule, nor does it put forth any reason the public interest would be better served by waiver of the rule.”

It is important to note that this ruling is a decision by a Bureau of the Commission. As such, it is subject to review by the Commissioners upon petition by an interested party. With the upcoming transition to the new administration, it is not clear whether Kohll’s will pursue additional administrative remedies relating to its petition. We are certain that we’ll keep watching for any further proceedings and will cover them here as they occur.

Last Thursday, 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 they could 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.

And yesterday, 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. A detailed agenda for the webinar will be released at a later date, but the FCC indicated in its Public Notice 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.”

According to the FCC press release, the Robocall Strike Force will work to “develop[] comprehensive solutions to prevent, detect, and filter unwanted robocalls” and advise the FCC on the role government can play in this effort. The Strike Force will be headed up by AT&T CEO Randall Stephenson. Other carriers, including Verizon, Sprint, T-Mobile and CenturyLink, have also agreed to participate in the Strike Force. The Strike Force will hold its first meeting on Friday, August 19, at the FCC’s headquarters. The first part of the meeting will be open to the public and will be broadcast on the Commission’s website. Chairman Wheeler and Commissioner Clyburn will offer opening remarks to the group.

Notably, this group is not a formal federal advisory committee, and does not have the process or procedural requirements that would accompany such a group. It is not clear what the group will address, or how it will operate going forward. To us, the primary take-away from the existence of the group is the FCC’s high-profile involvement in it. Chairman Wheeler has a limited amount of time before the election (and the customary turn-over that occurs at that time), and it appears that he is intent upon driving the introduction of blocking techniques in the wireless industry before he leaves.

Government Debt Collection Calls

On August 2, the FCC adopted new rules to implement a TCPA exemption for calls related to government debt collection that was enacted as part of the Bipartisan Budget Agreement of 2015. Despite objections from other federal agencies including the Department of Education and the Consumer Financial Protection Bureau, the new rules include a number of consumer protection-focused provisions, including the following:

• The number of federal debt collection calls is limited to three calls within a 30 day period. However, “federal agencies may request a waiver seeking a different limit on the number of autodialed, prerecorded-voice, and artificial-voice calls.”
• Consumers are permitted to seek to stop federal debt collection calls at any time, and callers must inform consumers of their right to make such a request.
• Artificial-voice and prerecorded-voice calls “may not exceed 60 seconds, exclusive of any required disclosures.”
• Federal debt collection calls or texts are permitted only between 8:00 AM and 9:00 PM (local time at the called party’s location).
• Calls covered under the exception are only permitted for “debts that are ‘delinquent’ at the time the call is made or debts that are at imminent risk of delinquency as a result of the terms of the operation of the loan program itself” and the U.S. must “currently [be] the owner or guarantor of the debt.” (Debts that have been sold in their entirety by the federal government are not covered.)
• Pre-delinquency debt servicing calls are prohibited, except for the following: (1) calls regarding an approaching deadline or a change in status (deferment, forbearance, rehabilitation), (2) calls regarding enrollment or re-enrollment in income-driven or income-based repayment plans, and (3) calls regarding similar time-sensitive events or deadlines affecting the amount or timing of payments due.
• Calls covered under the exception are permitted to the following phone numbers: (1) the wireless telephone number the debtor provided at the time the debt was incurred, such as on the loan application; (2) a wireless phone number subsequently provided by the debtor to the owner of the debt or the owner’s contractor; or (3) a wireless telephone number the owner of the debt or its contractor has obtained from an independent source, provided that the number actually is the debtor’s telephone number.

Calls by Schools and Utility Companies

On August 4, 2016, the FCC issued a Declaratory Ruling in which it determined that school callers and utility companies are permitted under the TCPA to make autodialed calls and send automated texts in certain circumstances. The ruling specifically responds to two petitions seeking such a ruling. The petitioners are as follows:

• Blackboard, Inc. – Blackboard sought a declaratory ruling that the TCPA rules “do not apply to informational, non-commercial, nonadvertising, and non-telemarketing autodialed and prerecorded messages sent by Blackboard’s educational institution customers because those calls are made for ‘emergency purposes.’” Blackboard was sued under the TCPA on the basis of informational calls and text messages sent to consumers regarding educational information (i.e. school announcements and closures). Blackboard transmits these calls and messages to phone numbers provided by schools that participate in the notification program. Blackboard argues that these informational messages should be distinguished from telemarketing calls and that they are made for “emergency purposes” and therefore not subject to the same consent and delivery restrictions as other calls.
• Edison Electric Institute and American Gas Association – EEI and AGA asked the Commission to issue a declaratory ruling that a “utility customer’s provision of a telephone number, including a cellphone number, to an energy utility satisfies the TCPA consent requirements for such customer to receive non-telemarketing, informational calls at that number related to the customer’s utility service.” The petition noted that although the Commission has previously indicated that certain communications from a utility company to its customers are exempt from the TCPA’s consent requirements (i.e. for emergency communications), it had not issued a “comprehensive statement” on the issue of what consent is required for non-emergency communications from energy utilities. The petition claimed that the absence of such a statement has allowed “an aggressive plaintiffs’ bar” to pursue TCPA litigation against utility companies “that, in a rational world, would kindly be described as absurd.”

Additionally, the Order denies Blackboard’s request for confirmation that consent transfers after a phone number has been reassigned, finding that such a request is moot in light of the Commission’s statements on reassigned phone numbers in the 2015 Omnibus TCPA Declaratory Ruling.

The Order also extends the “emergency purpose” exemption for school callers to “third parties sending emergency messages, e.g., in cooperation with schools to disseminate time-sensitive alerts … as long as the messages are limited to the emergency at issue and do not include any marketing.” Commissioner Jessica Rosenworcel dissented from this portion of the decision, asserting that “while perhaps unintended, this overbroad conclusion has the potential to become a gaping loophole that multiplies the number of unwanted robocalls consumers receive.”

In its discussion of the EEI/AGA petition, the declaratory ruling similarly found that a customer’s provision of his or her wireless phone number to a utility company constitutes consent to receive certain calls from that utility company about matters related to the service. Such calls can include calls to current customers to warn that failure to make payment will result in service curtailment. The order was clear, however, that “the utility company will bear the burden of showing it obtained the necessary prior express consent.” Additionally, unlike the Blackboard part of the decision, the Commission did not address whether communications sent by utility companies to their customers would fall within the TCPA’s “emergency purpose” exception. (The EEI/AGA petition had originally requested such a statement, but petitioners subsequently withdrew this portion of the request.)

Background – The Petitions for Declaratory Ruling

• RTI International – RTI is a nonprofit organization that places survey research calls on behalf of federal government agencies, including the Centers for Disease Control. Its petition sought a declaratory ruling that the TCPA does not apply to research survey calls made by or on behalf of the federal government because the TCPA restricts calls made by a “person,” and federal government agencies fall outside the definition of “person” in the Communications Act.
• National Employment Network Association – NENA represents individual providers of employment services to beneficiaries receiving Social Security Disability Insurance and Supplemental Security Income payments due to a qualifying disability. Its members contract with the Social Security Administration (SSA) to “contact program-eligible beneficiaries to inform them about their options for returning to self-supporting employment.” NENA asked the Commission to clarify that, because its members’ contracts with the SSA require them to contact program-eligible beneficiaries, they “stand[] in the shoes” of the federal government and are “exempt from the TCPA’s restrictions on calls to wireless numbers.”
• Broadnet Teleservices, LLC – Broadnet is a provider of a technology platform that “enables members of government to communicate with citizens” (e.g., through a telephonic town hall). To alleviate concerns that Broadnet might need to obtain prior express consent from each recipient of a call on a wireless phone, the company sought clarification that (1) federal, state, and local government entities do not meet the definition of “person” for TCPA purposes when the government and government officials are acting for official purposes, and (2) the TCPA does not apply to service providers working on behalf of government entities and officials.

The Definition of a “Person” Under the TCPA

The declaratory ruling also states that “the term ‘person’ in section 227(b)(1) does not include a contractor when acting on behalf of the federal government, as long as the contractor is acting as the government’s agent in accord with the federal common law of agency.” The Commission asserted that this conclusion is reasonable because “[i]f the TCPA were interpreted to forbid third-party contractors from making autodialed or artificial- or prerecorded-voice calls on behalf of the government, then, as a practical matter, it would be difficult (and in some cases impossible) for the government to engage in important activities on behalf of the public.”

Concerns from the Commissioners

Despite adopting the declaratory ruling, three of the five Commissioners issued separate statements regarding the item in which they raised unique concerns about the implications of the decision.

First, Commissioner Jessica Rosenworcel pointed out that the Commission currently is in the process of adopting rules to implement the government debt collection exemption to the TCPA enacted as part of the 2015 Bipartisan Budget Act. She noted in her concurring statement “in effect, we prejudge the outcome of our narrower proceeding under the Bipartisan Budget Act by here providing a blanket exemption from the Telephone Consumer Protection Act to the federal government and its agents.”

Second, Commissioner Ajit Pai dissented in part from the ruling based on the Commission’s determination that “federal contractors are not persons under the TCPA.” According to Commissioner Pai, the Commission’s interpretation contradicts the plain meaning of the statute, and “it is odd to suggest that a contractor’s status as a ‘person’ could switch on or off depending on one’s behavior or relationship with the federal government.”

Finally, Commissioner Michael O’Rielly said in his statement that “[i]t is frustrating … that Federal agencies will be exempt but the Commission leadership left unanswered whether state or local agencies may be subject to TCPA lawsuits.”

Case Background

Defendant Campbell-Ewald Co. provided recruiting assistance services to the U.S. Department of the Navy, and developed a recruiting campaign that involved sending text messages to individuals between the ages of 18-24 encouraging them to learn more about the Navy. The text messages were supposedly sent only to those individuals that had “opted in” to receive marketing solicitations on topics that included Navy service. Through its subcontractor, Campbell-Ewald sent text messages to over 100,000 recipients, including Jose Gomez, the plaintiff. Gomez sued, claiming that he never consented to receive such text messages.

Prior to class certification, Campbell-Ewald filed a Rule 68 Offer of Judgment to settle Gomez’s individual claim for (i) trebled damages for each text message that Gomez received in violation of the TCPA; (ii) his costs in bringing the action; and (iii) a stipulated injunction in which Campbell-Ewald agreed to be barred from sending future text messages in violation of the TCPA. Gomez did not respond within fourteen days as provided for in Rule 68 of the Federal Rules of Civil Procedure and the offer therefore lapsed.

The District Court denied a motion by Campbell-Ewald to dismiss the case on the ground that Gomez’s claim became moot after the contractor offered him complete relief for his individual claims. Subsequently, however, the court granted summary judgment to the company on the basis that, as a Navy contractor, it was entitled to derivative sovereign immunity. The Ninth Circuit overturned this ruling, and the Supreme Court granted certiorari to resolve both the mootness issue and the derivative sovereign immunity question.

Effect of an Unaccepted Settlement Offer

The Court first addressed “whether an unaccepted offer can moot a plaintiff’s claim, thereby depriving federal courts of Article III jurisdiction.” Starting with the notion that Article III jurisdiction requires “an actual controversy,” Justice Ginsberg in her opinion concluded that “[u]nder basic principles of contract law, Campbell’s settlement bid and Rule 68 offer of judgment, once rejected, had no continuing efficacy [and] [w]ith no settlement offer operative, the parties remained adverse.” As such, the plaintiff’s claim is not moot and the district court properly retained jurisdiction over the case.

The majority opinion was careful to distinguish this case from previous cases in which the Court found that a plaintiff’s claim was moot because the defendants offered to settle the case and had actually paid the plaintiffs to satisfy claims. Interestingly, the opinion leaves open “whether the result would be different if a defendant deposits the full amount of the plaintiff’s individual claim in an account payable to the plaintiff, and the court then enters judgment for the plaintiff in that amount.” In his dissent, Justice Alito states that “[t]oday’s decision thus does not prevent a defendant who actually pays complete relief --- either directly to the plaintiff or to a trusted intermediary – from seeking dismissal on mootness grounds.”

Availability of Derivative Sovereign Immunity

The second issue addressed by the Court was whether Campbell-Ewald, by virtue of its status as a contractor for the Navy, should be immune from TCPA liability under the doctrine of derivative sovereign immunity. The Court first explained that government contractors are generally exempt from liability for their actions performed pursuant to a contract. The Court then clarified, however, that “[w]hen a contractor violates both federal law and the Government’s explicit instructions, as here alleged, no ‘derivative immunity’ shields the contractor from suit by persons adversely affected by the violation.”

In this case, the Court determined that the plaintiff had presented sufficient evidence during the pre-trial stages to show that the Navy authorized Campbell-Ewald to send text messages only to those individuals that had consented to receive them, and that the company supposedly disobeyed these instructions (and violated the TCPA) when it sent text messages to Gomez. Thus, the defendant could not escape potential liability on the ground of derivative sovereign immunity.

Potential Impact of the Decision

The Campbell-Ewald decision, while resolving the narrow issue of the effect of an unaccepted Rule 68 offer, also leaves many questions unanswered, particularly with regard to the impact of a defendant’s actual payment to a plaintiff to resolve a dispute. (Kelley Drye’s Litigation group has prepared an advisory on the decision that discusses these questions in more detail.) Until these issues are resolved, courts are likely to see an increase in Rule 68 offers with corresponding efforts at payment and accompanying motions for judgment from defendants who want to test the boundaries of this potential exception to the Court’s ruling.

In the TCPA context, this decision could end up interplaying with two other high-profile TCPA cases currently pending in federal courts. First, the Supreme Court is expected this term to rule in the case of Robins v. Spokeo, Inc., which will address the issue of whether Congress may confer Article III standing on a plaintiff who suffers no concrete harm by simply authorizing a private right of action based on the violation of a federal statute alone. Second, the U.S. Court of Appeals for the D.C. Circuit is currently considering several challenges to the FCC’s July 2015 Omnibus TCPA Order, and is expected to issue a decision this spring to resolve issues such as the proper definition of an auto-dialer, proper consent, and liability for placing calls to reassigned phone numbers. These cases, taken together, may result in significant changes to the TCPA litigation landscape going forward.

The petitioner, Club Texting, Inc., filed its request for a declaratory ruling in 2009. In the petition, Club Texting asked the Commission to apply the fax broadcaster TCPA liability standard to text message platforms, such that “liability will attached only if a text broadcaster ‘demonstrates a high degree of involvement in, or actual notice of, the unlawful activity and fails to take steps to prevent such transmissions.’” In support of this request, Club Texting claimed that if the Commission made an affirmative finding that text broadcasters are not “senders” for TCPA purposes, it would “promote compliance” by the broadcasters’ third party clients that “are in the best position to ensure that recipients have consented to receive the text messages.”

FCC TCPA Declaratory Ruling

Nearly six years after the petition was filed, the FCC released its July 2015 Omnibus TCPA Order, in which it responded to approximately two dozen petitions for clarification of a variety of TCPA-related issues, including the Commission’s definition of a “caller” for purposes of determining TCPA liability. In the Order – which is currently being challenged in the U.S. Court of Appeals for the D.C. Circuit – the Commission determined that a calling or texting platform or application may face primary liability under the TCPA as the “caller” based on a case-by-case analysis of whether the entity takes the steps necessary to physically place the telephone call (or text), or is so involved in the placing of a call to have been deemed to initiate it (as opposed to merely having some role, however minor, in the causal chain that results in the making of the telephone call). The Commission further explained that other relevant factors when making its determination could include “the extent to which a person willfully enables fraudulent spoofing of telephone numbers or assists telemarketers in blocking Caller ID, by offering either functionality to clients,” or whether the text broadcaster “has knowingly allowed its client(s) to use that platform for unlawful purposes.”

The FCC’s standard is similar to the “high degree of involvement” standard applicable to fax broadcasters, but the Commission made clear that it was not applying the fax broadcaster standard per se. This raises the possibility that outcomes involving calls or texts will differ than they would if faxes were involved. Until we see cases adjudicating liability, however, we will not know how much of a difference the standard makes in practice.

Club Texting Petition

Against this backdrop, the FCC’s order in Club Texting is primarily procedural. In denying the Club Texting petition, the Bureau reaffirmed the position in the Order and noted that “the Commission has clarified the standard to be applied to text broadcasters and that standard is not the same standard as applies to fax broadcasters.” It did not revise the standard, nor did it offer any meaningful clarifications of how the standard will be applied. Indeed, the order explicitly states that it is not adjudicating the liability of any particular text broadcasting service at this time.

We note that the FCC has proposed to fine a “robocall broadcaster” previously. The case involved Dialing Services, Inc., a developer of a software platform that allows customers to record their own messages and send them to a designated list of recipients. The Commission issued a Notice of Apparent Liability against the company in May 2014, and proposed a $2.9 million penalty on the basis that Dialing Services had allowed its customers, through its platform, to make 184 unlawful prerecorded message calls to cell phones. According to the Commission, because of the company’s involvement in the call process, Dialing Services made or initiated the calls. The Commission has yet to convert the NAL to a Forfeiture Order, however. Arguably, the Commission should apply the standard announced in the 2015 TCPA Declaratory Ruling to determine Dialing Services’ liability in the case.

For now, service providers should expect the Commission to continue in its efforts to cast a wide consumer protection net, and companies involved in activities regulated by the TCPA should take whatever steps are necessary to avoid unwanted attention from regulators or the plaintiffs’ bar.

On June 18, the FCC approved a major TCPA Declaratory Ruling that redefines what equipment falls within the definition of an “autodialer,” specifies liability for calls to reassigned telephone numbers, provides consumers with a right to revoke consent by any reasonable means, and establishes new exceptions for financial and healthcare related calls, among other changes. With the order’s release on Friday, July 10, industry participants can finally begin to evaluate the implications of the FCC’s rulings on their ability to text or call customers and potential customers. Please join us for a webinar to discuss the FCC’s Declaratory Ruling and Order on Friday, July 17 at 12 PM ET. Kelley Drye’s TCPA Practice and Government Affairs attorneys will discuss the rulings, the prospects for appeals, and potential legislative responses to the FCC action.

To register for the discussion, please click here. CLE credit is available for NY and CA bar members.

Presenters: Steve Augustino, Alysa Hutnik, Lauri Mazzuchetti, Mark Anderson , Lee Terry

CLE Credit Opportunity:

Kelley Drye is an accredited provider of NY & CA CLE. This non-transitional continuing legal education program has been approved in accordance with the requirements of the Continuing Legal Education Boards for 1.0 NY professional practice credits and 1.0 CA General credit. We will apply for CLE credit in other jurisdictions, upon request, but cannot guarantee approval. If you are interested in applying to receive CLE credit, please include your desired jurisdiction and your bar registration number when you register.

O’Rielly asserted that “FCC decisions and court rulings have broadened the scope of the TCPA, creating uncertainty and litigation risk for legitimate businesses.” He characterized as “unfounded” consumer group concerns that changes would “gut the TCPA” and argued instead that consumers will be harmed by overly restrictive TCPA rules. He went on to criticize the manual-dialing alternative advocated by some consumer groups as “unrealistic.” Finally, alluding to the current backlog of petitions currently pending before the FCC for clarification of TCPA issues, O’Rielly expressed his belief that “it is time for the FCC to act” on those issues.

The speech came just one week after Commissioner O’Rielly penned a blog post on the FCC’s website urging the Commission to “follow through on the pending TCPA petitions to make sure that good actors and innovators are not needlessly subjected to enforcement actions or lawsuits, which could discourage them from offering new consumer-friendly communications services.”

Kelley Drye maintains a comprehensive summary of those petitions in our monthly TCPA Tracker. For more information on Kelley Drye's TCPA practice visit our TCPA page.

“Free Offers” May be Advertising

The Forfeiture Order affirms a finding that AmericanWest’s messages constituted advertising, even though the pre-recorded messages did not offer anything for sale. In this instance, the recipients heard a message that they allegedly had won a free vacation package. The Commission noted in the NAL that according to the TCPA, “‘offers for free goods or services that are part of an overall marketing campaign to sell property, goods, or services’ also qualify as unsolicited advertisements and are ‘prohibited to residential telephone subscribers, if not otherwise exempted.’” Finding no exemption that would have allowed AmericanWest to make the calls in question, the FCC proposed a penalty of $4,500 per message, a rate that has been imposed in similar previous cases.

Statute of Limitations

The timing of the Forfeiture Order likely is motivated by the statute of limitations facing the FCC. Many communications carriers are aware of the FCC’s one-year statute of limitations for issuing a Notice of Apparent Liability. Once the FCC satisfies that limitations period, it faces a second one much later in the process: the time within which it must initiate an action to collect an unpaid forfeiture. That provision requires the FCC (technically, the Department of Justice) to commence an action to collect on a forfeiture within five years of when the violation occurred (not when the NAL was issued). Because the calls that violated the TCPA occurred in March 2010, the FCC must commence an action to collect a forfeiture by March 2015 – just two months from now.

Here at this blog, we have seen this pattern in enforcement cases at the FCC before. Typically, after the rush to satisfy the one-year statute of limitations for an NAL, an enforcement case can lie dormant for years. This is the case even when, as here, the respondent never even contests the proposed forfeiture. (But is also frequently happens when a respondent does contest the forfeiture, and then awaits an indication from the Commission that it is going to address the NAL.) Only as the FCC approaches its five-year limitations period on collections does the Commission address the “apparent” violations of the NAL. This also helps to explain the unusually short time period AmericanWest was given to pay the forfeiture – only 12 days. Once that time period passes, the Commission can proceed to commence a collection action against the company; the payment date is intended to provide the FCC time to do so before its March 2015 bar date.

The CGB initially set the comment and reply deadlines for December 24 and January 8, respectively. USTelecom requested an extension of these deadlines in light of the fact that they fall in the middle of the holiday season. In its request, USTelecom noted that an extension “will ensure that all parties have the opportunity to allocate key resources to providing full input” on the “host of legal and technological issues involving the relationship between emerging technologies, the communications marketplace, and voice provider obligations under the Communications Act of 1934 and the Telephone Consumer Protection Act.” No one opposed USTelecom's request and one company supported it. Telephone Science Corporation – the company that developed NoMoRobo, a call-blocking technology specifically referenced in NAAG’s letter to the FCC – stated that the extension requested would allow the company “enough time to analyze our data and provide better answers to the questions posed by the Commission.”

The Commission agreed that an extension was warranted in this instance. As such, comments are now due on January 23, 2015 and replies are due on February 9, 2015.