TCPA Tracker - December 2017
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
- 23 (+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
- Federal Housing Finance Agency – seeking clarification that calls made by mortgage holders to borrowers in disaster-affected areas, where the called individual previously provided the phone number, fit “within the scope of consent” under the TCPA (Filed 11/15/17)
Click here to see the full FCC Petitions Tracker.
Cases of NoteVoIP Service Is Not Entitled to the Same Protections as Cellular Service Under the TCPA, Massachusetts District Court Finds on Summary Judgment
Only a handful of courts have analyzed the issue of VoIP serviced phone numbers that connect to cell phones in the TCPA context, but the District of Massachusetts joined the fray with a recent summary judgment decision.
In moving for summary judgment in a TCPA case filed against it for calling a cell phone with recorded messages, Cellco Partnership asserted that because the plaintiff’s cell phone number received service through Voice over Internet Protocol (VoIP) technology, Cellco had no means of determining that the number it was dialing was intended for a cell phone. In Breda v. Cellco Partnership, No. 16-11512-DJC, 2017 WL 5586661 (D. Ma. Nov. 17, 2017), the court agreed that VoIP service is not cellular service under the express provisions of the TCPA.
To raise a successful TCPA claim, the plaintiff needed to prove that Cellco called a “cellular telephone service” when it called plaintiff’s phone number. At the time the calls at issue were made, plaintiff’s phone number and phone service were with Republic Wireless. Cellco asserted that plaintiff’s phone number was not assigned to a cellular telephone service because Republic “ported” plaintiff’s phone number to a third party which then provided VoIP service. This service by the third party led to plaintiff’s number being viewed as a wireline number instead of as a cellular number, even though the phone number itself was connected to a cell phone.
The court determined that the plaintiff’s TCPA claim failed because the plaintiff was unable to raise a genuine issue of fact as to whether Cellco’s recorded message reached a cellular telephone service or a service for which the called party is charged on a per-call basis. Plaintiff paid a fixed monthly fee for a service with unlimited monthly calls; the court reasoned that this flat fee for unlimited calls indicated that her phone number was “not ‘assigned’ to a service for which she was charged.” See id. at *3.