Kelley Drye’s Communications Practice Group presents this tracker of active Telephone Consumer Protection Act (“TCPA”) petitions before the Federal Communications Commission (“FCC”).  With the recent increase in litigation regarding alleged violations of the TCPA, many issues relating to the interpretation of the statute have been presented to the FCC by impacted parties.  These petitions can be primary jurisdiction referrals or be presented directly by a litigant in a TCPA action.  The FCC currently has a number of petitions pending related to TCPA interpretation.  The tracker below briefly summarizes each petition and the issues presented in them.

Number of Petitions Pending

Todd C. Bank – TCPA clarification: residential telephone lines used for business purposes (3/7/16)

Educational Testing Service; Inter-Med, Inc. d/b/a Vista Dental Products; Legal & General America, Inc.; Jeana Fleitz, LLC d/b/a The X-Ray Lady – fax waiver petitions

Kohll’s Pharmacy & Homecare, Inc. – facsimile advertisements (3/24/16)

Mobile Media Technologies – procedures for revocation of consent – text messages (4/5/16)

Posture Pro, Inc.; Educational Testing Service; LKN Communications, Inc., d/b/a ACN, Inc. (fax waiver petitions)
(Replies due 4/15/16)

Papa Murphy’s Holdings, Inc. and Papa Murphy’s International L.L.C (prior express consent)(Comments due 4/21/16;
Replies due 5/6/16)

Todd C. Bank (scope of ATDS prohibitions for residential telephone lines)(Comments due 5/2/16;
Replies due 5/17/16)  

FCC Files Amicus Brief in Support of TCPA Plaintiff

On April 6, 2016, the FCC submitted an amicus curiae brief to the U.S. Court of Appeals for the Second Circuit in a TCPA case in which the plaintiff/appellant alleges that the defendant/appellee violated the TCPA by placing a prerecorded voice call (robocall) to a residential telephone line at his home (Bank v. Indep. Energy Grp., LLC et al., Case No. 15-2391 (2d Cir. Apr. 6, 2016)).  The U.S. District Court for the Eastern District of New York granted summary judgment for the defendant, finding that the TCPA did not apply in this case because the plaintiff used the residential line for business purposes.  The plaintiff appealed the decision, and subsequently filed a petition with the FCC seeking clarification on the issue of whether “the TCPA’s restrictions on artificial or prerecorded voice calls apply to calls made to a telephone line used for a home business so long as the line is registered with the service provider as a residential line.”  The plaintiff then asked the court to stay its proceeding pending resolution of the FCC petition.  In its brief, the FCC acknowledged that the Commission’s rules do not define the term “residential telephone line” and that it has not “resolved the question of whether, or under what circumstances, a telephone line in a home can support business activities and remain a ‘residential’ line.”  As such, the Commission supported the plaintiff’s request for a stay to allow the Commission an opportunity to address these issues.

Awaiting Decision (Items on “Circulation”)

Broadnet Teleservices LLC; National Employment Network Association Declaratory; and RTI International – TCPA exemption for calls by or on behalf of the government
(circulated 3/14/16)

Broadnet, NENA, and RTI filed separate petitions seeking a declaratory ruling that the TCPA and the Commission’s implementing rules do not apply to calls made by or on behalf of federal, state, and local governments when such calls are made for official purposes.  The draft declaratory ruling on circulation will address all three petitions.

Broadnet offers a service called “Teleforum” through which elected officials and other government representatives can contact consumers about issues that may be relevant to them.  Broadnet asserts that due to ambiguity in the Commission’s interpretation of the TCPA, consumers who rely only on wireless phones may be “deprived” of such communication.  As such, Broadnet asks the Commission to declare that, pursuant to the plain meaning of the statute, “the term ‘person’ does not include federal, state, and local government entities and officers acting in their official capacities.”

RTI, a contractor that conducts research calls on behalf of several federal government agencies, argues that the United States government is exempt from the TCPA because it does not fall within the definition of “person” and the TCPA only prohibits calls by persons.  RTI was recently sued after making calls as part of the National Intimate Partner and Sexual Violence Survey, and claims that if the FCC does not clarify that the government is exempt from TCPA restrictions, similar future litigation will “threaten the continued viability” of similar research surveys.

NENA is an organization comprised of providers of employment services for individuals that receive Social Security Disability Insurance or Supplemental Security Income.  These providers are contracted by the Social Security Administration.  Specifically, the petition asks that the Commission clarify that these providers are exempt from the autodialer or prerecorded call restrictions because they “have a mandate to contact program-eligible beneficiaries to inform them about their options for returning to self-supporting employment.”

Blackboard, Inc. – limits on TCPA jurisdiction
(filed February 24, 2015; circulated on 12/21/15)

Blackboard submitted a petition seeking 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.’”  Alternatively, Blackboard asks the Commission for a broad reading of prior express consent to include either the wireless number called (even if the number has been reassigned) or the intended recipient of the call rather than an inadvertent recipient.

Blackboard is the subject of a TCPA lawsuit 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.

Other Pending Petitions

Petitions are grouped by their primary subject matter.

Petitions Relating to “Prior Express Written Consent”

1. Mobile Media Technologies (filed March 7, 2016)

2. Rita’s Water Ice Franchise Company, LLC (filed December 2, 2015)

3. National Cable & Telecommunications Association (filed October 1, 2015)

4. National Association of Broadcasters (filed August 18, 2015)

5. American Bankers Association (filed August 8, 2015)

6. F-19 Petition (filed July 29, 2015)

7. Kale Realty (filed July 23, 2015)

8. Mammoth Mountain Ski Area, LLC (filed February 23, 2015)

9. Edison Electric Institute and American Gas Association (filed February 12, 2015)

10. Citizens Bank, N.A. (filed January 16, 2015)

Petitions Relating to “Junk” Faxing Rules

The following petitions pertaining to the same requirement are still pending in the TCPA docket:

1. Kohll’s Pharmacy & Homecare, Inc. (filed Mar. 24, 2016)

2. Joseph T. Ryerson & Son, Inc. (filed Nov. 4, 2015)

3. Westfax, Inc. (filed Oct. 23, 2012)

Anda, Inc. Retroactive Waiver.  On October 30, 2014, the FCC released an order addressing an application for review filed by Anda, Inc. and related petitions seeking clarification of the Commission’s rules requiring individuals and entities that send fax advertisements to include certain information on the fax to allow recipients to “opt-out” of receiving such transmissions in the future.  The FCC denied all of the petitions insofar as they requested the FCC to rule that the “opt out” language requirement did not apply to faxes sent with the prior express consent of the recipient, but granted a retroactive waiver to the petitioners and other similarly situated parties because the scope of the opt-out requirement was previously unclear.  Prior to October 30, 2014, there were 24 additional petitions pending that sought clarification of the  “opt-out” notice requirement in Section 64.1200(a)(4)(iv) of the FCC’s rules.  Through the Anda order (FCC 14-164), the Commission granted a retroactive waiver of the opt-out notice requirement): Anda, Inc.; Forest Pharmaceuticals, Inc.; Staples, Inc.; Gilead Sciences, Inc.; Douglas Walburg/Richie Enterprises, LLC; Futuredontics, Inc.; All Granite & Marble Corp.; Purdue Pharma; Prime Health Services, Inc.; TechHealth, Inc.; Crown Mortgage Company; Magna Chek, Inc.; Masimo Corp.; Best Buy Builders, Inc.; S&S Firestone, Inc.; Cannon & Associates d/b/a Polaris Group; Stericycle, Inc.; American CareSource Holdings, Inc.; Carfax, Inc.; Merck and Company, Inc.; UnitedHealth Group, Inc.; MedLearning, Inc. and Medica, Inc.; Unique Vacations, Inc.; and Power Liens, LLC.

Prior to the Anda order, but not addressed in that order, two parties had petitioned for similar relief.  Francotyp-Postalia, Inc. (FP Mailing Solutions, Inc.) (filed October 14, 2014); Allscripts (several petitioners filed this collectively) (filed September 30, 2014).  On November 4, 2014, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 14-1598) seeking comment on the petitions.  The Public Notice stated that, as a result of the Anda order, it was not necessary to consider these petitioners’ requests for declaratory ruling.  It sought comment on the requests for retroactive waiver consistent with the Anda order.  Comments were due on November 18, 2014 and replies were due on November 25, 2014.

On August 28, 2015, the Consumer & Governmental Affairs Bureau released an Order granting retroactive waivers to 117 petitioners, consistent with the FCC’s October 2014 decision in Anda.  Generally, the Bureau Order granted petitions filed before June 23, 2015.  Following the Order, the Commission has received seven applications for review of the decision to grant the waiver.  In response, more than a dozen of the entities that benefited from the retroactive waiver have filed oppositions to these applications.  However, the Commission has not yet responded to the requests.

Since the August 2015 order was released, the following parties have sought retroactive waivers on this issue:

On July 31, 2015 the Consumer and Governmental Affairs Bureau released a Public Notice (DA 15-876) seeking comment on the following petitions: Megadent, Inc.; Ivoclar Vivadent, Inc.; Renaissance Systems and Services, LLC.; Zimmer Dental, Inc.; and Costco Wholesale Corp. Comments were due August 14, 2015 and replies were due on August 21, 2015.

On September 25, 2015 the Consumer and Governmental Affairs Bureau released a Public Notice (DA 15-1077) seeking comment on the following petitions: McVey Associates, Inc.; Dental Fix Rx LLC; Scrip Holding Co.; and SourceMedia LLC.  Comments were due October 9, 2015 and replies were due on October 16, 2015.

On December 4, 2015, the Consumer and Governmental Affairs Bureau released a Public Notice (DA 15-1381) seeking comment on the following petitions: Virbac Corporation, Advanced Care Scripts, Inc., and Fetch, Inc. d/b/a Petplan.  Comments were due on December 18, 2015 and replies were due on December 30, 2015.

On January 29, 2016, the Consumer and Governmental Affairs Bureau released a Public Notice (DA 16-102) seeking comment on the following petitions: AZCOMP Technologies, Inc.; Weinberg & Associates; Humana Insurance Company et al.  Comments were due on February 12, 2016 and replies were due on February 19, 2016.

On March 25, 2016, the Consumer and Governmental Affairs Bureau released a Public Notice (DA 16-317) seeking comment on the following petitions: Posture Pro, Inc.; LKN Communications, Inc. d/b/a ACN, Inc.; and Educational Testing Service.  Comments were due on April 8, 2016 and replies are due on April 15, 2016.

Other Petitions

1. Todd C. Bank (filed Mar. 7, 2016)

2. Papa Murphy’s Holdings, Inc. and Papa Murphy’s International L.L.C (filed Feb. 22, 2016)

3. Lifetime Entertainment Services, LLC (filed Dec. 11, 2015)

4. Anthem, Inc. (filed June 10, 2015)

5. Vincent Lucas (filed June 18, 2014)

6. Acurian, Inc. (filed Feb. 5, 2014)