TCPA FCC Petitions Tracker – July 2022 | Kelley Drye & Warren LLP

Kelley Drye’s Communications Follow Group presents this tracker of lively Phone Shopper Safety Act (“TCPA”) petitions earlier than the Federal Communications Fee (“FCC”).  With the current enhance in litigation relating to alleged violations of the TCPA, many points regarding the interpretation of the statute have been introduced to the FCC by impacted events.  These petitions may be major jurisdiction referrals or be introduced immediately by a litigant in a TCPA motion.  The FCC presently has a variety of petitions pending associated to TCPA interpretation.  The tracker under briefly summarizes every petition and the problems introduced in them.

New and Noteworthy

Awaiting Choice (Objects on “Circulation”)

Different Pending Petitions

Petitions are grouped by their major material.

Petitions Looking for to Set up or Modify Exemptions to TCPA Consent Necessities

• HIS Markit Ltd, a shopper outreach supplier retained to supply 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 data to customers and are exempted from the TCPA’s prior specific 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 deal with sure remembers of automobiles outfitted with Takata airbag inflators, could also be positioned to wi-fi numbers even absent prior consent from the subscriber.
• On October 4, 2018, the Shopper & Governmental Affairs Bureau launched a Public Discover (DA 18-1023) looking for touch upon the petition.  Feedback had been due on November 5, 2018 and reply feedback had been due on November 20, 2018.

8. 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 be relevant to calls made by mortgage servicers to debtors throughout and within the wake of emergencies equivalent to Hurricanes Harvey and Irma.  The request notes that “FHFA’s regulated entities have to contact debtors instantly the place they’re impacted by declared disasters— no matter specific consent— to supply vital details about mortgage help that may be in keeping with [an] exception [to the prior express consent requirement].”  Examples of such communications would possibly embrace notices that cost obligation is suspended, warnings of potential fraud scams, and details about mortgage mortgage modification or different related issues supplied by a good service supplier.
• On November 17, 2017, the Shopper & Governmental Affairs Bureau launched a Public Discover (DA 17-1121) looking for touch upon the petition.  Feedback had been due on December 1, 2017 and replies had been due on December 8, 2017.

9. 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 specific consent” requirement informational calls made by credit score unions to wi-fi numbers in certainly one of two circumstances: (1) the wi-fi subscriber has a longtime enterprise relationship with the credit score union; or (2) the calls are actually not charged to the referred to as occasion, for instance, as a result of the referred to as occasion’s wi-fi plan has limitless minutes and texts.”  CUNA means that the exemption could be relevant solely to calls that present data equivalent to “alternatives for members to deal with an excellent debt earlier than incurring extra charges; account stability and overdraft alerts; doable safety breaches of members’ private and monetary data; and cost card utilization and fraud alerts,” in addition to “calls and texts from credit score unions regarding credit score union coverage, voting, or monetary training 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 circumstances: (1) Calls and textual content messages should determine the identify of the credit score union and embrace contact data for the credit score union (for voice calls, these disclosures would have to be made at first 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 be exempted primarily based 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 (3) Credit score unions counting on this exemption should provide the occasion being contacted a simple to make use of and efficient means 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 aid is required to “get rid of the antiquated distinctions between informational calls made to residential traces and people made to wi-fi subscribers.”  In keeping with CUNA, the FCC has broad authority to undertake the requested exemption below the TCPA though such an exemption is just not expressly approved below the statute, and that the FCC has exercised comparable authority in adopting different TCPA exemptions.  It additionally claims that the requested exemption aligns with steerage from the CFPB relating to communications with distressed and financially susceptible customers.
• On October 6, 2017, the Shopper & Governmental Affairs Bureau launched a Public Discover (DA 17-798) looking for touch upon the petition.  Feedback had been due on November 6, 2017 and replies had been due on November 21, 2017.

10. Nice Lakes Larger Training Corp. et al. (filed December 16, 2016)

• Nice Lakes Larger Training Corp., Navient Corp., Nelnet, Inc., the Pennsylvania Larger Training Help Company, and the Pupil 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 Funds 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 usually problem the FCC’s interpretation of its rulemaking authority as impermissibly broad.

11. Anthem, Inc.; Blue Cross Blue Defend Affiliation; Wellcare Well being Plans, Inc.; American Affiliation of Healthcare Administrative Administration (filed July 28, 2016) 

• The joint petitioners search clarification from the FCC relating to sure statements within the 2015 Omnibus TCPA Order associated to non-telemarketing healthcare calls.  Particularly, the petitioners have requested the FCC to difficulty a declaratory ruling and/or make clear two gadgets: (1) that the supply of a cellphone quantity to a “coated entity” or “enterprise affiliate” (as these phrases are outlined below HIPAA) constitutes prior specific consent for non-telemarketing calls allowed below HIPAA for the needs of remedy, cost, 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 seemed to HIPAA for steerage on learn how to interpret healthcare calls below the TCPA.
• On August 19, 2016, the Shopper & Governmental Affairs Bureau launched a Public Discover (DA 16-947) looking for touch upon the petition.  Feedback had been due on September 19, 2016 and replies had been due on October 4, 2016.

12. American Bankers Affiliation (filed August 8, 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 units 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 supplied by the client.” The ABA argues that this “supplied by” requirement limits the worth of the exemption and that the order ought to be modified to learn “exempted calls and texts could also be despatched solely to affected clients and cash switch recipients.”
• Broadnet asserts that native governments needn’t be “sovereign” to be excluded from the definition of “particular person” below the TCPA.  The Petition references the choice in Barr v. American Affiliation of Political Consultants, sustaining that “for a similar motive the Supreme Court docket decided that the TCPA doesn’t apply to the federal authorities—a dedication made with no point out of ‘sovereign’ standing, solely the textual content of the statue—the TCPA can be finest understood as not making use of to another ranges of presidency.”  Broadnet additionally means that the FCC ought to contemplate the precedents of doubtless analogous laws. The Petition refers back to the origin of the TCPA and notes the clear deal with telemarketing and solicitation.  Broadnet argues that this focus “illustrates that the aim of the TCPA was to not impede communications between residents and their authorities.”

Petitions Regarding Acquiring or Revoking “Prior Specific Written Consent”

• Paul Armbruster filed a petition for declaratory ruling or rulemaking asking the Fee to conclude that buyers have an absolute proper to revoke their consent for informational textual content messages the place the enterprise was not required to acquire prior specific written consent. Mr. Maupin is looking for to revoke consent for textual content messages from his wi-fi service supplier, AT&T, that verify that he made a cost for his service. AT&T instructed 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 client has supplied specific consent or not.”
• On July 18, 2019, the Shopper & Governmental Affairs Bureau launched a Public Discover (DA 19-671) looking for touch upon the petition.  Feedback had been due August 19, 2019, and replies had been due September 3, 2019.

3. Patrick Maupin (filed June 21, 2019)

• Patrick Maupin filed a request that the Fee: (1) “[c]larify that the acquisition of an vehicle 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 recognized learn how to request clarification on this difficulty and isn’t entitled to any secure harbor primarily based on doable confusion about its duties”; and (3) “[c]larify that the Fee’s rules and interpretive discussions that put the burden of proof relating to 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 expensive to supply affirmative per-consumer EBR proof due to the tens of millions of calls made by it or on its behalf is an issue of the telemarketer’s personal making that ought to not protect it from legal responsibility or duty for its actions.”
• On the time Mr. Maupin filed his petition, Sirius XM was combating a category motion regulation swimsuit associated to calls positioned to people on the Nationwide Do Not Name Checklist.
• On June 28, 2019, the Shopper & Governmental Affairs Bureau launched a Public Discover (DA 19-601) looking for touch upon the request for clarification.  Feedback had been due on July 29, 2019, and replies had been due on August 13, 2019.

4. Life Insurance coverage Direct Advertising and marketing Affiliation et al. (filed June 18, 2018)

• The petitioners are looking for a ruling that life insurance coverage brokers and brokers are permitted to name their clients whereas the life insurance coverage insurance policies offered by servicing brokers are in impact and for a interval of 18 months after the insurance policies expire primarily based 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) looking for touch upon the petition. Feedback had been due on August 6, 2018 and replies had been due on August 21, 2018.

5. Cunningham and Moskowitz (filed Jan. 22, 2017)

• Two shopper petitioners are looking for to reverse two FCC interpretations of the “prior specific consent” provision of the TCPA.  First, the petitioners problem a 1992 order through which the Fee decided that “individuals who knowingly launch their cellphone 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 supply of a cellular phone quantity to a creditor, e.g., as a part of a credit score utility, moderately evidences prior specific consent by the cellular phone subscriber to be contacted at that quantity relating to 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 may consequence within the following: (1) overturning earlier interpretations of the prior specific consent provision such that implied consent could also be given in sure circumstances; and (2) adoption of a uniform requirement to fulfill the prior specific consent requirement for each mobile and residential phone numbers.
• On February 8, 2017, the Shopper & Governmental Affairs Bureau launched a Public Discover (DA 17-144) looking for touch upon the petition.  Feedback had been due on March 10, 2017 and replies had been due on March 27, 2017.

7. Cell Media Applied sciences (filed March 7, 2016)

• 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 accessible to customers a selected or specific technique by which a shopper could revoke prior specific consent to be texted, together with bilateral reply “STOP” textual content messaging performance.”  The petition additionally asks the Fee to make clear {that a} “cheap technique” of revoking consent “should, at a minimal, be a technique that truly reaches the texting occasion.”  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 {that a} textual content recipient might revoke consent by texting the phrase “STOP.”  MMT argues that nothing within the TCPA mandates {that a} texting occasion present customers any particular or specific technique to revoke consent, as long as the tactic employed is cheap.
   

Petitions Regarding Computerized Phone Dialing Methods (ATDS)

1. US Chamber of Commerce Institute for Authorized Reform et al. (filed Could 3, 2018)

• The U.S. Chamber of Commerce Institute for Authorized Reform and 17 co-petitioners are looking 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 court docket supplied a logical roadmap for the way the Fee ought to interpret ATDS.”
• On Could 14, 2018, the Shopper & Governmental Affairs Bureau launched a Public Discover (DA 18-493) looking for touch upon the petition.  Feedback had been due on June 13, 2018 and replies had been due on June 28, 2018.

Petitions Regarding “Junk” Faxing Guidelines

1. Cin-Q Cars, Inc. (October 21, 2020)

• Cin-Q Cars, Inc. filed an Software for Overview, asking the FCC to reverse the Akin Gump Declaratory Ruling.  Within the Akin Gump Ruling, the FCC concluded that “a fax broadcaster is solely chargeable for TCPA violations when it engages in deception or fraud in opposition to the advertiser.” In keeping with Cin-Q, the Ruling doesn’t adequately deal with the precedents established by the 2003 and 2006 Fee Orders, which discovered fax broadcasters to be “collectively and severally liable” for TCPA violations.

2. Anderson + Wanca  (filed October 5, 2020)

• Anderson + Wanca filed an Software for Overview, asking the FCC to contemplate reversing the Ryerson Declaratory Ruling. In keeping with Anderson + Wanca, “the Fee ought to reverse the Ryerson Bureau Order below Rule 1.115(b)(2) as a result of its reasoning relating to ‘on-line fax providers’ is in battle with the statute, rules, case precedent, and established Fee coverage, and is predicated on inaccurate factual findings.”  Extra particularly, the Software questions whether or not the tools referenced within the Ryerson determination as a web based fax service has the requisite capability to be a phone fax machine.  Anderson + Wanca additionally argue that the Amerifactors Declaratory Ruling, the choice cited as the first motive for granting the Ryerson Petition, was primarily based on a mistaken understanding of the TCPA tips and thus warrants Fee assessment

3.Finest Docs, Inc., Petition for Declaratory Ruling (filed Dec. 14, 2018)

• Finest Docs, Inc., writer of a “Finest Docs in America” checklist, seeks a declaratory ruling that faxes looking for verification of contact data and the operational standing of an workplace aren’t “ads” throughout the which means of the Junk Fax Safety Act of 2005.  Finest Docs states that, as a part of its verification technique of medical doctors advisable for the Checklist, it faxes to the physician’s workplace an data type verifying the physician’s contact data and whether or not the physician is continuous to see new sufferers.  A duplicate of the shape used is supplied as a part of the petition.  Finest Docs contends that the verification type is just not “promoting” below the Junk Fax Safety Act as a result of it doesn’t provide the “business availability or high quality of any property, items or providers” of Finest Docs, Inc.  It seeks a declaratory ruling to resolve conflicting court docket choices regarding whether or not data past the fax itself may be thought-about to find out if a fax is an “commercial.”  Finest Docs notes that petitions filed by Inovalon, Inc. and M3 USA Company elevate comparable questions in regards to the which means of an “commercial” below the statute.
• On December 21, 2018, the Shopper & Governmental Affairs Bureau launched a Public Discover (DA 18-1296) looking for touch upon the petition.  Feedback had been due on January 25, 2019 (however prolonged to January 30 as a result of federal shutdown) and replies had been due on February 8, 2019.

4. Inovalon​ (filed February 19, 2018)

• Inovalon is a contractor of a number of regional and nationwide “well being plans” for which it aggregates shopper well being knowledge.  To gather this knowledge, the corporate contacts healthcare suppliers to acquire sufferers medical information via quite a lot of channels, together with faxing.  Inovalon was just lately sued by a medical supplier to whom it despatched a fax requesting medical information and informing the recipient about its “no value” assortment and digitization providers.  In its petition, Inovalon has requested the FCC to declare that: (1) Faxes despatched by a medical 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 information aren’t ads below the TCPA; and (2) Faxes that supply the free assortment and/or digitization of affected person medical information, and which don’t provide any commercially accessible services or products to the recipients aren’t ads below the TCPA.
• On February 23, 2018, the Shopper & Governmental Affairs Bureau launched a Public Discover (DA 18-180) looking for touch upon the petition.  Feedback had been due on March 26, 2018 and replies had been due on April 10, 2018.
• On March 9, 2021 Inovalon filed a letter requesting immediate motion on its petition in response to new developments at school motion litigation.
• On February 3, 2022, Inovalon once more requested immediate motion on its petition.  Inovalon said that the court docket, in denying in August 2021 a movement to raise the keep “expressed its unease with the size of time that Inovalon’s Petition has been pending on the Fee” and ordered a joint standing report each three months, with the subsequent report due on February 17, 2022.  Inovalon asserts that its petition is “overdue” for a call. 

5. M3 USA Company (filed March 20, 2017)

• M3 USA Company is a third-party supplier of qualitative and quantitative market analysis surveys centered on healthcare-related subjects.  One of many strategies M3 makes use of to “facilitate participation in its blinded market analysis surveys” is to ship invites by way of fax to a number of varieties of healthcare professionals.  In keeping 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 ads; (2) informational faxes aren’t pretexts for ads below the TCPA until the transmission promotes particular, commercially-available property, items or providers to the recipient of the fax; (3) market analysis surveys don’t represent property, items or providers vis-à-vis the  individuals taking the surveys below the TCPA; and (4) Invites to take part in market analysis surveys aren’t ads below the TCPA until commercially-available property, items or providers are promoted within the fax itself or throughout the survey itself.  In keeping with the petition, such declarations could be in keeping with FCC precedent and steerage 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) looking for touch upon the petition.  Feedback had been due on April 27, 2017 and replies had been due on Could 15, 2017.

6. RingCentral, Inc. (filed July 6, 2016)

• RingCentral seeks a declaratory ruling that (1) a fax broadcaster whose amenities or providers are utilized by a 3rd occasion content material generator is just not itself the “sender” of a facsimile, for functions of the TCPA’s prohibition in opposition to sending unsolicited ads by facsimile; and (2) de minimis promotional phrases contained in in any other case bona fide informational, transactional and even one other occasion’s unsolicited fax promoting communications don’t represent “unsolicited ads” 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 occasion “consent” for sending de minimis promotional data together with a facsimile that’s in any other case lawfully despatched by the fax broadcaster’s buyer to a 3rd occasion 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 primarily based on fax ads it despatched to 3rd occasion recipients on behalf of its clients.
• On July 29, 2016, the Shopper & Governmental Affairs Bureau launched a Public Discover (DA 16-863) looking for touch upon the petition.  Feedback had been due on August 29, 2016 and replies had been due on September 13, 2016.

4. 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 traces which are registered with the telephone-service supplier as residential traces.”  He argues that such a clarification could 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 could be in keeping with prior statements by the FCC on this difficulty. 
• 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 temporary in assist 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) looking for touch upon the petition.  Feedback had been due on Could 2, 2016 and replies had been due on Could 17, 2016.

5. 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 assist to any vendor or telemarketer when that particular person is aware of or consciously avoids realizing that the vendor or telemarketer is engaged in any act or observe that violates 47 U.S.C. § 227(b) or (c).
• On the time Mr. Lucas filed his petition, he was concerned in a lawsuit through which he alleged that three corporations and two people “supplied substantial help to a number of telemarketers whereas realizing that these telemarketers had 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) looking for touch upon the petition.  Feedback had been due on August 8, 2014 and replies had been due on August 25, 2014.