TCPA Tracker-October 2015



To read prior issues of TCPA Tracker, please click here.

Top FCC Advisor Defends FCC Consumer Protection Actions

On September 24, 2015, Gigi Sohn, an advisor to FCC Chairman Tom Wheeler, spoke at the Roger Williams School of Law in Rhode Island on the FCC’s role in consumer protection.  During her remarks, she asserted that no FCC has been as committed to consumer protection as the Wheeler FCC” and highlighted some of the Commission’s key consumer protection initiatives during Wheeler’s tenure.  These efforts included scrutiny of the Comcast-Time Warner Cable merger (which was ultimately abandoned), ongoing slamming and cramming enforcement actions (led by actions against the four largest carriers for premium SMS texting charges), and increased enforcement of the Commission’s privacy and data breach rules, open internet transparency rules, rules against Wi-Fi blocking and robocalls, and public safety rules.  She also referenced the Commission’s July 10, 2015 Declaratory Ruling and Order as an example of pro-consumer activity by the agency.  Finally, in response to criticism that the FCC should not play an active role in national consumer protection efforts, Ms. Sohn commented that the Commission is an essential complement to the Federal Trade Commission and the Department of Justice because of its unique industry expertise, ex ante regulatory approach, and authority to investigate proposed mergers under a public interest standard.

FCC Cites Two Companies for TCPA Disclosure Violations

On September 11, 2015, the FCC’s Enforcement Bureau issued citations to two companies for alleged violations of the TCPA and the Commission’s implementing rules.  In one of the citations, the Bureau claimed that First National Bank (FNB) violated the TCPA through its Online Banking Services Agreement and its Apple Pay Terms & Conditions, both of which require[d] consumers to consent to receive marketing texts in order to use” the services.  Additionally, FNB allegedly failed to include a clear and conspicuous disclosure informing the consumer of his or her right to refuse to give such consent” as required by FCC rules.  The second citation was against Lyft, Inc., a transportation matchmaking service.  The Bureau alleged that Lyft’s Terms of Service Agreement violated the Commission’s rules because although the Agreement contained language that purport[ed] to recognize the consumer’s right to refuse consent to receive promotional messages as a condition to receiving service,” Bureau staff discovered during its investigation of the company that exercising the option to decline marketing messages made it impossible to use Lyft’s services.”  Both companies had thirty days to respond to the citations or risk incurring additional sanctions, including monetary penalties.

  FCC Petitions Tracker

With the rise in TCPA litigation, numerous parties have sought clarification of the rules. Kelley Drye’s Communications group has compiled this comprehensive summary of the pending petitions.

Number of Petitions Pending New Petitions Filed Upcoming Comments Decisions Released
18 (+ 11 seeking a retroactive waiver of the opt-out requirement for fax ads) Broadnet Teleservices, LLC (asking the Commission to declare that the TCPA does not apply to calls made by or on behalf of federal, state or local governments in an official capacity)

National Cable & Telecommunications Association (seeking a retroactive waiver of the prior express written consent requirement for autodialed or pre-recorded calls)

3 petitions filed seeking a retroactive waiver of the opt-out requirement for fax ads pursuant to the Anda order. 

7 applications for review of the grant of a waiver of the junk fax rules to 117 petitioners in the July 2015 Order
Broadnet Teleservices, LLC (comments due 10/29/15; replies due 11/13/15)

Petitions by the NAB , F-19 Holdings, LLC and Kale Realty, LLC seeking retroactive waivers of the prior express written consent requirement for autodialed or pre-recorded calls (comments due 10/26/15; replies due 11/9/15)

4 petitions seeking retroactive waivers of the opt-out notice requirement for fax ads (replies due 10/16/15)

FCC issues citations to Lyft and First National Bank for TCPA violations (DA 15-996 and DA 15-997, 9/11/15)

Click here to see the full FCC Petition Tracker.