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I. New and Noteworthy
II. Awaiting Decision (Items on “Circulation”)
III. Other Pending Petitions
a. Petitions Seeking to Establish or Modify Exemptions to TCPA Consent Requirements
b. Petitions Relating to “Prior Express Written Consent”
c. Petitions Relating to Automatic Telephone Dialing Systems (ATDS)
d. Petitions Relating to “Junk” Faxing Rules
e. Other Petitions
Kelley Drye’s Communications Observe Group presents this tracker of lively Phone Shopper Safety Act (“TCPA”) petitions earlier than the Federal Communications Fee (“FCC”). With the latest improve in litigation concerning alleged violations of the TCPA, many points regarding the interpretation of the statute have been offered to the FCC by impacted events. These petitions will be major jurisdiction referrals or be offered instantly by a litigant in a TCPA motion. The FCC at present has quite a lot of petitions pending associated to TCPA interpretation. The tracker beneath briefly summarizes every petition and the problems offered in them.
New and Noteworthy
Assurance IQ, LLC (filed Might 12, 2020)
On Might 12, 2020, Assurance IQ, LLC, filed a petition for declaratory ruling asking the Fee to rule that (1) if a caller has “cheap foundation to imagine that they’ve legitimate consent to make the decision,”, that caller might depend on such consent for TCPA functions till the referred to as celebration claims in any other case and (2) “prerecorded introductory message on an in any other case dwell name,” doesn’t represent a prerecorded or synthetic name throughout the scope of the TCPA.
Assurance IQ operates a web based portal for shoppers searching for details about sure sorts of insurance coverage. shoppers have the choice of being related through phone name with an impartial licensed insurance coverage agent, offered that they first comply with Assurance IQ’s “TCPA-compliant,” disclosure and consent type. On Might 11, 2019, the corporate obtained, through their web site, such a request and consent for an insurance coverage quote from a person recognized as James Shelton. Nevertheless, on July 23, 2019, Mr. Shelton filed a putative class motion criticism in the USA Court docket for the Southern District of New York in opposition to Assurance IQ and Lumico Life Insurance coverage Firm, claiming that he by no means offered the private info and prior consent for the Might 11 calls. A key factual subject is that the Might 11 request was submitted utilizing an Web browser that hides the consumer’s IP handle. Mr. Shelton maintains that it was not him who submitted his private info and prior categorical consent. Assurance IQ states that it’s not asking the Fee “to adjudicate the Shelton case to resolve this Petition,”, however quite the corporate is asking that the FCC reaffirm its cheap foundation commonplace below the consent guidelines of the TCPA or threat giving license to “those that would search to generate TCPA litigation by ‘spoofing’ fraudulent consents.” The petition’s second request regarding “prerecorded introductory messages” considerations Assurance IQ’s “Eight-10 second” prerecorded, introductory message that’s performed as soon as the referred to as celebration is set to have answered, after which the caller is related to a dwell agent who can join the referred to as celebration to an insurance coverage agent.
On Might 21, 2020, the Shopper and Governmental Affairs Bureau launched a public notice searching for touch upon the petition. Feedback are due June 22, 2020 and reply feedback are due July 6, 2020.
Awaiting Choice (Gadgets on “Circulation”)
Different Pending Petitions
Petitions are grouped by their major material.
Petitions In search of to Set up or Modify Exemptions to TCPA Consent Necessities
1. Assurance IQ, LLC (filed Might 12, 2020)
- On Might 12, 2020, Assurance IQ, LLC, filed a petition for declaratory ruling asking the Fee to rule that (1) if a caller has “cheap foundation to imagine that they’ve legitimate consent to make the decision,”, that caller might depend on such consent for TCPA functions till the referred to as celebration claims in any other case and (2) “prerecorded introductory message on an in any other case dwell name,” doesn’t represent a prerecorded or synthetic name throughout the scope of the TCPA.
- Assurance IQ operates a web based portal for shoppers searching for details about sure sorts of insurance coverage. shoppers have the choice of being related through phone name with an impartial licensed insurance coverage agent, offered that they first comply with Assurance IQ’s “TCPA-compliant,” disclosure and consent type. On Might 11, 2019, the corporate obtained, through their web site, such a request and consent for an insurance coverage quote from a person recognized as James Shelton. Nevertheless, on July 23, 2019, Mr. Shelton filed a putative class motion criticism in the USA Court docket for the Southern District of New York in opposition to Assurance IQ and Lumico Life Insurance coverage Firm, claiming that he by no means offered the private info and prior consent for the Might 11 calls. A key factual subject is that the Might 11 request was submitted utilizing an Web browser that hides the consumer’s IP handle. Mr. Shelton maintains that it was not him who submitted his private info and prior categorical consent. Assurance IQ states that it’s not asking the Fee “to adjudicate the Shelton case to resolve this Petition,”, however quite the corporate is asking that the FCC reaffirm its cheap foundation commonplace below the consent guidelines of the TCPA or threat giving license to “those that would search to generate TCPA litigation by ‘spoofing’ fraudulent consents.” The petition’s second request regarding “prerecorded introductory messages” considerations Assurance IQ’s “Eight-10 second” prerecorded, introductory message that’s performed as soon as the referred to as celebration is set to have answered, after which the caller is related to a dwell agent who can join the referred to as celebration to an insurance coverage agent.
- On Might 21, 2020, the Shopper and Governmental Affairs Bureau launched a public discover searching for touch upon the petition. Feedback are due June 22, 2020 and reply feedback are due July 6, 2020.
2. American Bankers Affiliation et al. (filed March 30, 2020)
- On March 30, 2020, the American Bankers Affiliation and different monetary companies suppliers filed a petition for expedited declaratory ruling, clarification, or waiver asking the Fee to rule on whether or not the suppliers’ calls and textual content messages which are concerning the COVID-19 pandemic and use an automated phone dialing system (ATDS) or prerecorded or synthetic voice are made for emergency functions and, in consequence, are exempt from the TCPA’s consent necessities.
- On April 6, 2020, the FCC’s Shopper and Governmental Affairs Bureau launched a public discover searching for touch upon the petition. Feedback have been due on Might 6, 2020 and reply feedback have been due on Might 21, 2020.
three. Lucas Cranor (filed December 17, 2019)
- On December 17, 2019, Lucas Cranor, a person situated in Fortress Rock, Colorado, filed a petition for declaratory ruling asking the Fee to rule that (1) clients of wi-fi suppliers are in a position to opt-out of promoting calls and textual content messages and (2) wi-fi suppliers should honor such opt-out requests. Widespread carriers have traditionally been exempt from TCPA necessities as a result of any promotional calls and/or textual content messages made to subscribers are freed from value.
- On December 27, 2019, the Shopper and Governmental Affairs Bureau launched a public discover (DA 19-1332) searching for touch upon the petition. Feedback have been due on January 27, 2020, and reply feedback have been due on February 11, 2020.
four. IHS Markit Ltd. – Petition for Emergency Declaratory Ruling (filed September 21, 2018)
- HIS Markit Ltd, a client outreach supplier retained to offer recall notices within the Takata airbag litigation, requested the FCC to substantiate that motorcar security recall-related communications are made for emergency functions and due to this fact fall below the TCPA’s public security exception. IHS Markit argues that non-telemarketing motorcar security recall notices present crucial, time-sensitive info to shoppers and are exempted from the TCPA’s prior categorical consent necessities as calls “made for emergency functions.” IHS Markit requests that the FCC declare that non-telemarketing calls associated to motorcar security remembers, together with, for instance, these calls made to handle sure remembers of autos outfitted with Takata airbag inflators, could also be positioned to wi-fi numbers even absent prior consent from the subscriber.
- On October four, 2018, the Shopper & Governmental Affairs Bureau launched a Public Discover (DA 18-1023) searching for touch upon the petition. Feedback have been due on November 5, 2018 and reply feedback have been due on November 20, 2018.
5. Federal Housing Finance Authority (filed November 15, 2017)
- The Federal Housing Finance Authority (FHFA) seeks clarification from the FCC that the interpretation of the TCPA set forth within the Fee’s 2016 Blackboard Declaratory Ruling can also be relevant to calls made by mortgage servicers to debtors throughout and within the wake of emergencies akin to Hurricanes Harvey and Irma. The request notes that “FHFA’s regulated entities must contact debtors instantly the place they’re impacted by declared disasters— no matter categorical consent— to offer necessary details about mortgage help that might be in keeping with [an] exception [to the prior express consent requirement].” Examples of such communications would possibly embody notices that fee obligation is suspended, warnings of potential fraud scams, and details about mortgage mortgage modification or different related issues offered by a good service supplier.
- On November 17, 2017, the Shopper & Governmental Affairs Bureau launched a Public Discover (DA 17-1121) searching for touch upon the petition. Feedback have been due on December 1, 2017 and replies have been due on December Eight, 2017.
6. Credit score Union Nationwide Affiliation (filed September 29, 2017)
- The Credit score Union Nationwide Affiliation (CUNA) “requests that the Fee exempt from the TCPA’s “prior categorical consent” requirement informational calls made by credit score unions to wi-fi numbers in one among two circumstances: (1) the wi-fi subscriber has a longtime enterprise relationship with the credit score union; or (2) the calls are in truth not charged to the referred to as celebration, for instance, as a result of the referred to as celebration’s wi-fi plan has limitless minutes and texts.” CUNA means that the exemption can be relevant solely to calls that present info akin to “alternatives for members to handle an excellent debt earlier than incurring further charges; account stability and overdraft alerts; potential safety breaches of members’ private and monetary info; and fee card utilization and fraud alerts,” in addition to “calls and texts from credit score unions regarding credit score union coverage, voting, or monetary schooling materials.”
- To reduce potential privateness considerations, CUNA proposes that credit score unions that make calls or ship texts pursuant to the requested exemption would “present a simple to make use of opt-out mechanism” and adjust to the next situations: (1) Calls and textual content messages should establish the title of the credit score union and embody contact info for the credit score union (for voice calls, these disclosures would have to be made in the beginning of the decision); (2) Every credit score union shall ship or place just one name or textual content message per day, as much as a most of three calls or textual content messages mixed per week from a selected credit score union (until the decision or textual content can also be exempted based mostly on the free-to-end-user exemption for sure communications from monetary establishments or the BBA modification in regards to the assortment of federally-backed debt); and (three) Credit score unions counting on this exemption should supply the celebration being contacted a simple to make use of and efficient skill to decide out of receiving future autodialed or prerecorded or synthetic voice calls and textual content messages, which the credit score union will honor.
- CUNA claims that this reduction is required to “eradicate the antiquated distinctions between informational calls made to residential strains and people made to wi-fi subscribers.” In accordance with CUNA, the FCC has broad authority to undertake the requested exemption below the TCPA although such an exemption just isn’t expressly licensed below the statute, and that the FCC has exercised related authority in adopting different TCPA exemptions. It additionally claims that the requested exemption aligns with steering from the CFPB concerning communications with distressed and financially susceptible shoppers.
- On October 6, 2017, the Shopper & Governmental Affairs Bureau launched a Public Discover (DA 17-798) searching for touch upon the petition. Feedback have been due on November 6, 2017 and replies have been due on November 21, 2017.
7. Nice Lakes Greater Schooling Corp. et al. (filed December 16, 2016)
- Nice Lakes Greater Schooling Corp., Navient Corp., Nelnet, Inc., the Pennsylvania Greater Schooling Help Company, and the Scholar Mortgage Servicing Alliance search reconsideration of the principles adopted by the FCC on August 11, 2016 to implement the federal government debt assortment name exemption to the TCPA adopted as a part of the Bipartisan Price range Settlement Act of 2015. Particularly, the events problem the Fee’s determination to impose a three-call-per-month restrict, in addition to the limitation of calls solely to the debtor, as being unsupported by the statute and opposite to Congress’s intent in adopting the exemption. Additionally they typically problem the FCC’s interpretation of its rulemaking authority as impermissibly broad.
Eight. Skilled Companies Council (filed August four, 2016)
- Skilled Companies Council seeks reconsideration of a portion of the FCC’s Broadnet declaratory ruling launched on July 5, 2016, which discovered that federal authorities contractors aren’t topic to the TCPA. Particularly, the PSC petition asks the Fee to switch the declaratory ruling as a way to “present TCPA reduction to authorities contractors appearing on behalf of the federal authorities, in accordance with their contract’s phrases and the federal government’s directives, with out regard as to if a common-law company relationship exists.” The petition asserts that by basing the exemption on common-law company rules, the Fee might have inadvertently narrowed the scope of TCPA reduction out there to authorities contractors as a result of, based on PSC, “authorities contracts usually comprise language that expressly states the federal government contractor is not in an company relationship with the federal government.”
- On August 15, 2016, the Shopper & Governmental Affairs Bureau launched a Public Discover (DA 16-924) searching for touch upon the petition. Feedback have been due on September 14, 2016 and replies have been due on September 29, 2016.
9. Anthem, Inc.; Blue Cross Blue Protect Affiliation; Wellcare Well being Plans, Inc.; American Affiliation of Healthcare Administrative Administration (filed July 28, 2016)
- The joint petitioners search clarification from the FCC concerning sure statements within the 2015 Omnibus TCPA Order associated to non-telemarketing healthcare calls. Particularly, the petitioners have requested the FCC to subject a declaratory ruling and/or make clear two gadgets: (1) that the availability of a telephone quantity to a “coated entity” or “enterprise affiliate” (as these phrases are outlined below HIPAA) constitutes prior categorical consent for non-telemarketing calls allowed below HIPAA for the needs of therapy, fee, or well being care operations; and (2) that the time period “healthcare supplier” in paragraphs 141 and 147 of the 2015 Omnibus TCPA Order encompasses “HIPAA coated entities and enterprise associates.” The petitioners assert that these clarifications are essential to harmonize the TCPA and HIPAA, and level out that the FCC has beforehand regarded to HIPAA for steering on the way to interpret healthcare calls below the TCPA.
- On August 19, 2016, the Shopper & Governmental Affairs Bureau launched a Public Discover (DA 16-947) searching for touch upon the petition. Feedback have been due on September 19, 2016 and replies have been due on October four, 2016.
10. Nationwide Shopper Regulation Heart (filed July 26, 2016)
- The NCLC, along with quite a lot of authorized support applications and public curiosity organizations, seeks a keep and reconsideration of the FCC’s July 5, 2016 Declaratory Ruling that grants a TCPA exemption for calls by authorities contractors. In its petition, the NCLC argues that the FCC misinterpreted each the TCPA and the Supreme Court docket’s ruling in Campbell-Ewald v. Gomez when it decided that authorities contractors don’t fall throughout the definition of a “particular person” below the TCPA, and due to this fact aren’t topic to the Act’s restrictions on auto-dialed calls. It additional asserts that “[i]f the Fee doesn’t rethink and alter its ruling on this continuing, tens of hundreds of thousands of People will discover their cell telephones flooded with undesirable robocalls from federal contractors with no technique of stopping these calls and no cures to implement their requests to cease these calls.”
- On August 1, 2016, the Shopper & Governmental Affairs Bureau launched two Public Notices (DA 16-878 and DA 16-879) searching for touch upon the petition. Feedback on the NCLC’s request for keep of the Broadnet order have been due on August 11, 2016, and replies have been due on August 16, 2016. Feedback on NCLC’s request for reconsideration of the Broadnet order have been due on August 31, 2016 and replies have been due on September 15, 2016.
10. American Bankers Affiliation (filed August Eight, 2015)
- The American Bankers Affiliation seeks a reconsideration and modification of the exemptions granted to monetary establishments within the Fee’s 2015 TCPA Declaratory Ruling and Order. The exemption permits monetary establishments to ship automated, free-to-end-user calls and texts to cell gadgets regarding doubtlessly fraudulent transactions, breaches of shoppers’ private knowledge, remediation measures to forestall id theft, and notification of cash transfers. Nevertheless, the exemption permits calls and texts solely to “the wi-fi phone quantity offered by the shopper.” The ABA argues that this “offered by” requirement limits the worth of the exemption and that the order needs to be modified to learn “exempted calls and texts could also be despatched solely to affected clients and cash switch recipients.”
Petitions Referring to Acquiring or Revoking “Prior Categorical Written Consent”
1. Capital One Companies, LLC (filed November 1, 2019)
- On November 1, 2019, Capital One Companies, LLC (“Capital One”), a monetary companies firm, filed a petition for declaratory ruling asking the Fee to rule message in response to a buyer’s opt-out request that seeks to make clear the scope of their request is in step with the Fee’s 2012 declaratory ruling in SoundBite Communications, Inc., that means that such responses to opt-out requests wouldn’t represent a violation of the TCPA.
- In SoundBite, the Fee reasoned that affirmation messages despatched in response to opt-out requests aren’t in violation of the TCPA as long as they don’t comprise “advertising and marketing, solicitations, or try to persuade the recipient to rethink his or her opt-out determination.” Capital One argues that some shoppers might solely wish to cancel one a part of a broader automated text-messaging program once they ship an opt-out message, and never all the service. As well as, Capital One argues affirmation message that additionally permits the chance for the patron to make such a clarification is helpful in methods much like the standalone opt-out affirmation.
- On November 7, 2019, the Shopper and Governmental Affairs Bureau launched a public discover (DA 19-1156) searching for touch upon the petition. Feedback have been due on December 9, 2019, and reply feedback have been due December 24, 2019.
2. Lori Wakefield (filed July 15, 2019)
- Lori Wakefield filed a petition for reconsideration of the Fee’s June 13, 2019, order granting restricted retroactive waivers of its prior-express-written-consent rule to ViSalus, Inc. and bebe shops, inc. for the interval between October 16, 2013, and October 7, 2015. The Fee granted the restricted waivers, in keeping with waivers granted to different petitioners, because of confusion about whether or not written consent obtained previous to when the rule was adopted was nonetheless legitimate. On the time ViSalus and bebe filed their waiver petitions, they have been every combating TCPA class motion fits associated to telemarketing calls made to former clients. The Wakefield petition asks the Fee to rethink the waiver granted to ViSalus “in gentle of subsequent developments in associated litigation between Wakefield and ViSalus.” Wakefield’s petition asserts that ViSalus by no means asserted or offered proof that it had obtained prior categorical written consent from the category members within the litigation, and that, on the contrary, ViSalus “made clear that it referred to as people no matter whether or not it had obtained consent to be referred to as.” The petition additional states that ViSalus acknowledged that as a result of “it didn’t have proof” of consent, “[t]hat distinguishes ViSalus from most of the entities which have obtained a retroactive waiver.” Moreover, the petition asserts that “the proof offered at trial concerning ViSalus’s calling practices makes clear that . . . ViSalus was not below any real confusion concerning the scope or applicability of the Fee’s guidelines.” The petition states that the jury within the class motion swimsuit “discovered that ViSalus had made round 1.85 million illegal calls.”
three. Paul Armbruster (filed July 9, 2019)
- Paul Armbruster filed a petition for declaratory ruling or rulemaking asking the Fee to conclude that customers have an absolute proper to revoke their consent for informational textual content messages the place the enterprise was not required to acquire prior categorical written consent. Mr. Maupin is searching for to revoke consent for textual content messages from his wi-fi service supplier, AT&T, that verify that he made a fee for his service. AT&T advised Mr. Maupin that “the texts are coated by the wi-fi service exemption, which permits wi-fi carriers to contact their very own clients, no matter whether or not the shopper has offered categorical consent or not.”
- On July 18, 2019, the Shopper & Governmental Affairs Bureau launched a Public Discover (DA 19-671) searching for touch upon the petition. Feedback have been due August 19, 2019, and replies have been due September three, 2019.
four. Patrick Maupin (filed June 21, 2019)
- Patrick Maupin filed a request that the Fee: (1) “[c]larify that the acquisition of an car at retail from a automobile seller doesn’t robotically create an [established business relationship (“EBR”)] between the auto purchaser and a third-party supplier of a radio subscription service,” which might allow the radio subscription service supplier to name the purchaser even when that purchaser is registered on the Nationwide Do-Not-Name Registry; (2) make clear that Sirius XM “would have identified the way to request clarification on this subject and isn’t entitled to any protected harbor based mostly on potential confusion about its obligations”; and (three) “[c]larify that the Fee’s laws and interpretive discussions that put the burden of proof concerning the EBR on the telemarketer and that require telemarketers to have the ability to present clear and convincing proof of the EBR imply that any telemarketer ought to simply be capable of present such name knowledge to show its case in discovery, and that any contentions made by a telemarketer that it will be too pricey to offer affirmative per-consumer EBR proof due to the hundreds of thousands of calls made by it or on its behalf is an issue of the telemarketer’s personal making that ought to not defend it from legal responsibility or accountability for its actions.”
- On the time Mr. Maupin filed his petition, Sirius XM was combating a category motion legislation swimsuit associated to calls positioned to people on the Nationwide Do Not Name Listing.
- On June 28, 2019, the Shopper & Governmental Affairs Bureau launched a Public Discover (DA 19-601) searching for touch upon the request for clarification. Feedback have been due on July 29, 2019, and replies have been due on August 13, 2019.
5. SGS North America, Inc. (filed December 17, 2018)
- SGS has requested the FCC to “make clear and ensure that prior categorical written consent is required solely when a name advertises the industrial availability or high quality of any property, good, or service, or in any other case clearly encourages the acquisition or rental of, or funding in, property, items, or companies throughout the 4 corners of the communication itself. Solely when the decision features a free supply ought to something extraneous to the content material of the communication itself be thought-about.” In accordance with the petition, confusion surrounding the FCC’s 2012 TCPA Order has resulted in authentic enterprise calls being topic to TCPA lawsuits. Due to this fact, the petition seeks further steering, as set forth within the request, on how “twin goal” calls needs to be dealt with below the TCPA.
- Alternatively, SGS seeks reduction that might be particular to its enterprise, specifically, a retroactive waiver of the prior categorical written consent necessities for calls that solely search to schedule, verify, or in any other case talk about a automobile inspection.
- On December 20, 2018, the Shopper & Governmental Affairs Bureau launched a Public Discover (DA 18-1290) searching for touch upon the petition. Feedback have been due on January 24, 2019 (however prolonged to January 30 because of the federal shutdown) and replies have been due on February Eight, 2019.
6. Life Insurance coverage Direct Advertising Affiliation et al. (filed June 18, 2018)
- The petitioners are searching for a ruling that life insurance coverage brokers and brokers are permitted to name their clients whereas the life insurance coverage insurance policies bought by servicing brokers are in impact and for a interval of 18 months after the insurance policies expire based mostly on a longtime enterprise relationship between life insurance coverage servicing brokers and their clients.
- On July 6, 2018, the Shopper & Governmental Affairs Bureau launched a Public Discover (DA 18-707) searching for touch upon the petition. Feedback have been due on August 6, 2018 and replies have been due on August 21, 2018.
7. Cunningham and Moskowitz (filed Jan. 22, 2017)
- Two client petitioners are searching for to reverse two FCC interpretations of the “prior categorical consent” provision of the TCPA. First, the petitioners problem a 1992 order wherein the Fee decided that “individuals who knowingly launch their telephone numbers have in impact given their invitation or permission to be referred to as on the quantity which they’ve given, absent directions on the contrary.” Second, the petitioners query a 2008 Fee order which concluded that “the availability of a cellular phone quantity to a creditor, e.g., as a part of a credit score utility, moderately evidences prior categorical consent by the cellular phone subscriber to be contacted at that quantity concerning the debt.” The petitioners declare that the FCC contravened Congressional intent when it adopted these two orders by improperly studying an implied consent provision into the TCPA. As such, they search a declaratory ruling or a rulemaking that might outcome within the following: (1) overturning earlier interpretations of the prior categorical consent provision such that implied consent could also be given in sure circumstances; and (2) adoption of a uniform requirement to fulfill the prior categorical consent requirement for each mobile and residential phone numbers.
- On February Eight, 2017, the Shopper & Governmental Affairs Bureau launched a Public Discover (DA 17-144) searching for touch upon the petition. Feedback have been due on March 10, 2017 and replies have been due on March 27, 2017.
Eight. Community Communications Worldwide Corp. (filed Might 10, 2016)
- NCIC is a supplier of an inmate calling service (“ICS”) that permits incarcerated people to put accumulate calls from correctional services to residential or cellphone strains. The corporate explains that inmate calls initiated by way of an ICS usually can’t be accomplished both as a result of the referred to as celebration’s cellphone service supplier blocks incoming accumulate calls or the referred to as celebration doesn’t correctly reply the incoming name as he/she usually might not acknowledge the correctional facility’s caller identification quantity. NCIC seeks a declaratory ruling that in such an occasion, it’s permitted to ship a single follow-up textual content message to the referred to as celebration’s telephone quantity to tell them of the uncompleted name from the inmate, and that such protocol “comports with the Fee’s certified exemption to the TCPA’s requirement of prior categorical consent for sure ICS calls made to cellphone numbers.” NCIC notes that the Fee issued the same declaratory ruling for a distinct ICS supplier confirming the TCPA exemption.
- On June 7, 2016, the Shopper & Governmental Affairs Bureau launched a Public Discover (DA 16-628) searching for touch upon the petition. Feedback have been due on July 7, 2016 and replies have been due on July 22, 2016.
9. Cellular Media Applied sciences (filed March 7, 2016)
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MMT seeks a declaratory ruling to make clear that neither the TCPA nor the FCC’s July 2015 Omnibus order “require a celebration transmitting a textual content message to create or make out there to shoppers a selected or specific methodology by which a client might revoke prior categorical consent to be texted, together with bilateral reply “STOP” textual content messaging performance.” The petition additionally asks the Fee to make clear “cheap methodology” of revoking consent “should, at a minimal, be a way that truly reaches the texting celebration.” MMT is a textual content broadcaster, and claims that lots of its licensees are going through TCPA litigation, partially as a result of MMT’s system was not beforehand arrange for bilateral textual content messaging performance such textual content recipient may revoke consent by texting the phrase “STOP.” MMT argues that nothing within the TCPA mandates texting celebration present shoppers any particular or specific methodology to revoke consent, as long as the tactic employed is affordable.
Petitions Referring to Computerized Phone Dialing Methods (ATDS)
1. US Chamber of Commerce Institute for Authorized Reform et al. (filed Might three, 2018)
- The U.S. Chamber of Commerce Institute for Authorized Reform and 17 co-petitioners are searching for a declaratory ruling that (1) to be an “ATDS,” tools should use a random or sequential quantity generator to retailer or produce numbers and dial these numbers with out human intervention; and (2) solely calls made utilizing precise ATDS capabilities are topic to the TCPA. The petition was filed in response to the D.C. Circuit’s determination to overturn the FCC’s interpretation of ATDS within the 2015 Omnibus TCPA Order, and argues “the courtroom offered a logical roadmap for a way the Fee ought to interpret ATDS.”
- On Might 14, 2018, the Shopper & Governmental Affairs Bureau launched a Public Discover (DA 18-493) searching for touch upon the petition. Feedback have been due on June 13, 2018 and replies have been due on June 28, 2018.
Petitions Referring to “Junk” Faxing Guidelines
1. Akin Gump Strauss Hauer & Feld LLP (filed February 26, 2019)
- Akin Gump is requesting a declaratory ruling that “a fax broadcaster is the only liable ‘sender,’ when it each commits TCPA violations and engages in deception or fraud in opposition to the advertiser (or blatantly violates its contract with the advertiser) such that the advertiser can not management the fax marketing campaign or forestall TCPA violations.” In accordance with the petition, Akin Gump’s requested clarification is in keeping with the FCC’s 2006 TCPA order which concluded that the celebration whose items and companies are marketed in an unsolicited fax just isn’t at all times the liable sender, and would additionally alleviate judicial confusion concerning fax sender legal responsibility.
- On March 7, 2019, the Shopper & Governmental Affairs Bureau launched a Public Discover (DA 19-159) searching for touch upon the petition. Feedback have been due on April Eight, 2019 and replies have been due on April 23, 2019.
2. Finest Medical doctors, Inc., Petition for Declaratory Ruling (filed Dec. 14, 2018)
- Finest Medical doctors, Inc., writer of a “Finest Medical doctors in America” listing, seeks a declaratory ruling that faxes searching for verification of contact info and the operational standing of an workplace aren’t “commercials” throughout the that means of the Junk Fax Safety Act of 2005. Finest Medical doctors states that, as a part of its verification means of docs really helpful for the Listing, it faxes to the physician’s workplace an info type verifying the physician’s contact info and whether or not the physician is continuous to see new sufferers. A replica of the shape used is offered as a part of the petition. Finest Medical doctors contends that the verification type just isn’t “promoting” below the Junk Fax Safety Act as a result of it doesn’t supply the “industrial availability or high quality of any property, items or companies” of Finest Medical doctors, Inc. It seeks a declaratory ruling to resolve conflicting courtroom selections regarding whether or not info past the fax itself will be thought-about to find out if a fax is an “commercial.” Finest Medical doctors notes that petitions filed by Inovalon, Inc. and M3 USA Company increase related questions in regards to the that means of an “commercial” below the statute.
- On December 21, 2018, the Shopper & Governmental Affairs Bureau launched a Public Discover (DA 18-1296) searching for touch upon the petition. Feedback have been due on January 25, 2019 (however prolonged to January 30 because of the federal shutdown) and replies have been due on February Eight, 2019.
three. Inovalon (filed February 19, 2018)
- Inovalon is a contractor of a number of regional and nationwide “well being plans” for which it aggregates client well being knowledge. To gather this knowledge, the corporate contacts healthcare suppliers to acquire sufferers medical data by way of quite a lot of channels, together with faxing. Inovalon was lately sued by a medical supplier to whom it despatched a fax requesting medical data and informing the recipient about its “no value” assortment and digitization companies. In its petition, Inovalon has requested the FCC to declare that: (1) Faxes despatched by a medical health insurance plan’s designee to a affected person’s medical supplier, pursuant to a longtime enterprise relationship between the well being plan and supplier, requesting affected person medical data aren’t commercials below the TCPA; and (2) Faxes that provide the free assortment and/or digitization of affected person medical data, and which don’t supply any commercially out there services or products to the recipients aren’t commercials below the TCPA.
- On February 23, 2018, the Shopper & Governmental Affairs Bureau launched a Public Discover (DA 18-180) searching for touch upon the petition. Feedback have been due on March 26, 2018 and replies have been due on April 10, 2018.
four. M3 USA Company (filed March 20, 2017)
- M3 USA Company is a third-party supplier of qualitative and quantitative market analysis surveys targeted on healthcare-related matters. One of many strategies M3 makes use of to “facilitate participation in its blinded market analysis surveys” is to ship invites through fax to a number of sorts of healthcare professionals. In accordance with the petition, “each market analysis survey performed by M3 is reviewed and analyzed to make sure that the surveys contain solely opinion assortment and not promoting or advertising and marketing.” Nevertheless, on the time M3 filed its petition, it was combating a TCPA class motion swimsuit associated to faxes the corporate despatched in reference to its surveys.
- M3 has requested the Fee for a declaratory ruling which incorporates the next: (1) there is no such thing as a presumption below the TCPA that faxes despatched by for-profit companies are pretexts for commercials; (2) informational faxes aren’t pretexts for commercials below the TCPA until the transmission promotes particular, commercially-available property, items or companies to the recipient of the fax; (three) market analysis surveys don’t represent property, items or companies vis-à-vis the individuals taking the surveys below the TCPA; and (four) Invites to take part in market analysis surveys aren’t commercials below the TCPA until commercially-available property, items or companies are promoted within the fax itself or in the course of the survey itself. In accordance with the petition, such declarations can be in keeping with FCC precedent and steering with regard to promoting and surveys, and is critical to resolve uncertainty within the courts about whether or not fax transmissions like these despatched by M3 are literally pretexts for promoting.
- On March 28, 2017, the Shopper & Governmental Affairs Bureau launched a Public Discover (DA 17-288) searching for touch upon the petition. Feedback have been due on April 27, 2017 and replies have been due on Might 15, 2017.
5. RingCentral, Inc. (filed July 6, 2016)
- RingCentral seeks a declaratory ruling that (1) a fax broadcaster whose services or companies are utilized by a 3rd celebration content material generator just isn’t itself the “sender” of a facsimile, for functions of the TCPA’s prohibition in opposition to sending unsolicited commercials by facsimile; and (2) de minimis promotional phrases contained in in any other case bona fide informational, transactional and even one other celebration’s unsolicited fax promoting communications don’t represent “unsolicited commercials” in violation of the TCPA. Alternatively, RingCentral has requested the Fee to make clear that in sure restricted circumstances fax broadcaster “senders” can depend on third celebration “consent” for sending de minimis promotional info together with a facsimile that’s in any other case lawfully despatched by the fax broadcaster’s buyer to a 3rd celebration recipient.
- RingCentral filed its petition partially as a result of it has been named as a defendant in a category motion lawsuit alleging TCPA violations based mostly on fax commercials it despatched to 3rd celebration recipients on behalf of its clients.
- On July 29, 2016, the Shopper & Governmental Affairs Bureau launched a Public Discover (DA 16-863) searching for touch upon the petition. Feedback have been due on August 29, 2016 and replies have been due on September 13, 2016.
6. Joseph T. Ryerson & Son, Inc. (filed November four, 2015)
- Petitioner Joseph T. Ryerson & Son, Inc. (“Ryerson”) has requested the Fee to subject a declaratory ruling that “faxes that provoke in digital type and are obtained in digital type don’t fall throughout the TCPA.” Ryerson argues that all these transitions are extra akin to emails than conventional faxes, and due to this fact needs to be regulated below the CAN-SPAM Act. It additional argues that making use of the TCPA to digital fax transmissions would violate the First Modification and can be void for vagueness below the First and Fifth Amendments.
- On the time Ryerson filed its petition, it was combating a TCPA class motion swimsuit associated to alleged unsolicited faxes obtained by the plaintiff from Ryerson
Different Petitions
1. Yodel Applied sciences LLC (Filed September 13, 2019)
- On September 13, 2019, Yodel Applied sciences LLC (“Yodel”), a Florida-based firm that develops and makes use of soundboard expertise together with dwell brokers, filed a petition asking the FCC to both subject a ruling declaring that calls utilizing soundboard expertise aren’t thought-about prerecorded calls prohibited below Part 227(b)(1) of the TCPA or grant Yodel a retroactive waiver for any prerecorded calls made in violation of the TCPA by Yodel Applied sciences LLC previous to Might 12, 2017. An analogous petition was filed (summarized beneath) by NorthStar Alarm Companies, LLC (“NorthStar”) on January 2, 2019. In its petition, Yodel’s petition says that it offered companies to NorthStar and “is now topic to the identical litigation publicity,” that motivated NorthStar’s petition. After stating their help for NorthStar’s arguments, the petition largely focuses on the historic interpretation of Part 227(b)(1)(B). Yodel’s petition cites quite a few FCC paperwork, the Ninth Circuit’s 1995 determination in Moser v. F.C.C., and a now-overturned 2009 Federal Commerce Fee (FTC) holding that every one distinguish between calls utilizing soundboard expertise with a dwell agent and “completely prerecorded and totally automated,” calls that fall below the scope of Part 227(b)(1)(B). When the FTC reversed its holding that soundboard expertise was permissible, the petition explains, Yodel “well timed responded to the FTC’s change in place because it associated to the Telemarketing Gross sales Rule.” The efficient date of the FTC’s holding, Might 12, 2017, serves as the idea for the petition’s different request: a retroactive waiver for any violation previous to that date.
- On September 19, 2019, the Shopper and Governmental Affairs Bureau launched a public discover (DA 19-931) searching for touch upon the petition. Feedback have been due October 21, 2019, and reply feedback have been due November four, 2019.
2. Alarm Business Communications Committee (Filed July Eight, 2019)
- The Alarm Business Communications Committee (“AICC”) filed a petition for clarification or for reconsideration of the FCC’s June 7, 2019 name blocking declaratory ruling regarding three points. First, AAIC asks the Fee to make clear that carriers should notify shoppers of their inclusion in an opt-out call-blocking program each on a service’s web site and through direct notification, akin to texts, e-mail, or inserts in buyer payments. Second, AAIC asks the FCC to make clear that calls from alarm firms are the sorts of emergency communications that carriers should keep away from blocking. Third, AICC asks the FCC to make clear that carriers should implement any call-blocking applications in a non-discriminatory vogue with respect to alarm firms that aren’t affiliated with the carriers.
three. NorthStar Alarm Companies, LLC (filed January 2, 2019)
- NorthStar is requesting a declaratory ruling that the usage of soundboard expertise, which permits a dwell operator to pick a number of recorded message “snippets” throughout dwell calls with recipients, doesn’t represent the usage of a man-made or prerecorded voice that delivers a message below the TCPA. The petition argues that soundboard expertise falls exterior the scope of the TCPA as a result of not like conventional pre-recorded voice calls/messages “that play from begin to end with none intervention by a human operator,” “soundboard expertise requires the cautious consideration of a well-trained operator who responds with acceptable audio snippets to a name recipient, creating a singular, individualized expertise.” NorthStar requests a declaratory ruling that might apply typically to soundboard expertise, or alternatively, a ruling that “[t]he use of soundboard expertise on a one-to-one foundation, whereby the soundboard agent conducts just one name with one particular person at a single time, doesn’t represent the usage of a man-made or prerecorded voice that delivers a message below the TCPA.”
- On the time NorthStar filed its petition, it was combating a TCPA lawsuit associated to calls positioned utilizing soundboard expertise.
- On February 12, 2019, the Shopper & Governmental Affairs Bureau launched a Public Discover (DA 19-74) searching for touch upon the petition. Feedback have been due on March 15, 2019 and reply feedback have been due on March 29, 2019.
four. P2P Alliance (filed Might three, 2018)
- The P2P Alliance has requested the FCC to make clear that “peer-to-peer” textual content messaging, a “communications expertise that enables organizations to speak with their college students, workers, supporters, and clients by way of particular person, customized textual content messages,” just isn’t topic to the TCPA. In help of its request, the P2P Alliance argues that (1) P2P messaging doesn’t contain the usage of an ATDS, (2) “messages pertaining to non-political issues contain communications between two events with a earlier relationship, and the recipient has indicated his or her consent to obtain such messages by offering a contact quantity to which such messages are delivered,” and (three) “P2P textual content messages of a political nature are manually dialed by a person and do embody not ‘phone solicitations’ as outlined by the TCPA.”
- On Might 23, 2018, the Shopper & Governmental Affairs Bureau launched a Public Discover (DA 18-547) searching for touch upon the petition. Feedback have been due on June 22, 2018 and replies have been due on July 9, 2018.
5. Insights Affiliation and American Affiliation for Public Opinion Analysis (filed Oct. 30, 2017)
- Insights Affiliation and AAPOR submitted a prolonged petition searching for the next declaratory ruling reduction from the FCC: (1) communications aren’t presumptively “commercials” or “telemarketing” below the TCPA just because they’re despatched by a for-profit firm, or is likely to be for an final goal of enhancing gross sales or buyer relations; (2) the presence in a communication, or another ancillary doc or webpage, of a marginal aspect that may arguably be thought-about promoting doesn’t convert the communication right into a “dual-purpose” communication; (three) survey, opinion, and market analysis companies aren’t topic to the Fee’s vicarious legal responsibility regime as articulated in Dish Community; and (four) survey, opinion, and market analysis research don’t represent items or companies vis-à-vis the survey respondent, and aren’t reworked into items or companies merely as a result of they embody some nominal inducement to take part. The petitioners state that they “aren’t asking for a carve-out from the TCPA for researchers.” Nevertheless, [b]ecause of confusion within the courts concerning the distinction between advertising and marketing and analysis, and in gentle of associated questions concerning the TCPA’s July 10, 2015, ruling, …Fee steering is urgently wanted to assist curb abusive TCPA litigation.”
- On Might 23, 2018, the Shopper & Governmental Affairs Bureau launched a Public Discover (DA 18-548) searching for touch upon the petition. Feedback have been due on June 22, 2018 and replies have been due on July 9, 2018.
6. Todd C. Financial institution (filed March 7, 2016)
- The petitioner, an legal professional with a home-based enterprise, has requested the Fee to make clear that the principles prohibiting robocalls “apply to calls made to home-business phone strains which are registered with the telephone-service supplier as residential strains.” He argues that such a clarification can be in keeping with the language of the TCPA which states that the robocall provision of the Act applies to “any residential phone line.” He additional asserts that this interpretation can be in keeping with prior statements by the FCC on this subject.
- On the time Mr. Financial institution filed his petition, he was interesting a dismissal by the U.S. District Court docket for the Jap District of New York of his class motion lawsuit for TCPA violations. Following submission of his petition, the FCC filed an amicus curiae transient in help of Mr. Financial institution’s request to remain the appellate case pending the Fee’s disposition of his FCC petition.
- On March 31, 2016, the Shopper & Governmental Affairs Bureau launched a Public Discover (DA 16-341) searching for touch upon the petition. Feedback have been due on Might 2, 2016 and replies have been due on Might 17, 2016.
7. Vincent Lucas (filed June 18, 2014)
- Vincent Lucas asks for an expedited declaratory ruling holding that an individual is vicariously or contributorily liable if that particular person gives substantial help or help to any vendor or telemarketer when that particular person is aware of or consciously avoids understanding that the vendor or telemarketer is engaged in any act or apply that violates 47 U.S.C. § 227(b) or (c).
- On the time Mr. Lucas filed his petition, he was concerned in a lawsuit wherein he alleged that three firms and two people “offered substantial help to a number of telemarketers whereas understanding that these telemarketers have been engaged in practices that violate the TCPA.” In his petition, Mr. Lucas claims that the Justice of the Peace choose within the litigation misinterpreted a former FCC ruling on vicarious legal responsibility and is planning to dismiss his vicarious and contributory legal responsibility claims.
- On July 9, 2014, the Shopper & Governmental Affairs Bureau launched a Public Discover (DA 14-976) searching for touch upon the petition. Feedback have been due on August Eight, 2014 and replies have been due on August 25, 2014.
Eight. Acurian, Inc. (filed Feb. 5, 2014)
- Acurian filed a petition searching for clarification that phone name to a residential phone line searching for a person’s participation in a medical pharmaceutical trial is exempt from the restrictions on prerecorded calls below the TCPA. Acurian argues in its petition that it doesn’t make requires a industrial goal. Alternatively, the petition asserts that if Acurian’s calls are discovered to be industrial, that they don’t represent telemarketing or promoting calls.
- On February 20, 2014, the Shopper & Governmental Affairs Bureau launched a Public Discover (DA 14-229) searching for touch upon the petition. Feedback have been due on March 24, 2014 and replies have been due on April Eight, 2014.
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