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.

New and Noteworthy:

New TCPA Rules Placed on Circulation

On February 17, FCC Chairman Tom Wheeler circulated to his fellow commissioners a notice of proposed rulemaking (NPRM) to implement an exemption from TCPA liability for certain autodialed calls to consumers that are made for the purpose of collecting a debt owed to the federal government.  The NPRM was drafted pursuant to a provision in the Bipartisan Budget Act of 2015 which amended the TCPA to permit such calls and instructed the Commission to adopt rules to that effect.  The text of the item has not yet been made public, but Commission staff has suggested that the proposed rules take a consumer-friendly approach by limiting the scope of permissible debt collection calls (i.e. calls related to the collection of delinquent debts or helping consumers avoid default) and placing a cap on the number of monthly debt-related calls that would be allowed.  The debt-collection carve-out has faced criticism from both consumer and business advocates.  Consumer advocates claim that the exemption undermines the TCPA’s objectives to eliminate unwanted calls, while the business lobby asserts that limiting the exemption to only allow calls related to the collection of government debts (and not others) is unfair.  Chairman Wheeler said that he hopes to have the new rules in place by August 2, the deadline set by the Budget Act for such rule implementation.  Meanwhile, Senator Ed Markey’s (D-MA) Help Americans Never Get Unwanted Phone Calls Act of 2015 (HANGUP Act), which would repeal the exemption altogether, remains pending before the Senate Committee on Commerce, Science and Transportation.

Awaiting Decision (Items on “Circulation”)

            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. Rita’s Water Ice Franchise Company, LLC (filed 12/2/15)

• Rita’s has requested a limited retroactive waiver of the Commission’s “prior express written consent” rule for certain promotional text messages sent to customers between October 16, 2013 (the effective date of the rule) and July 17, 2015 (when Rita’s ceased sending all text messages).  Like many other petitioners seeking TCPA relief or clarification from the FCC, Rita’s is currently defending itself in a class action lawsuit based on these promotional text messages.
• Rita’s argues that it is entitled to a similar waiver to that which was granted to the Coalition of Mobile Engagement Providers and the Direct Marketing Association in the Commission’s July 2015 TCPA Order, in recognition that “there was legitimate confusion over whether a written consent obtained before October 16, 2013 remained valid after that date if the written consent did not precisely track the new ‘prior express written consent’ standard.”  The waiver Rita’s seeks would only apply to those messages for which the company had received the recipient’s consent prior to October 16, 2013.
• On December 14, 2015, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 15-1421) seeking comment on the petition.  Comments were due on January 13, 2016 and replies were due on January 28, 2016.

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

• The NCTA seeks to have extended to its members the retroactive and prospective waiver granted by the Commission in its July 2015 TCPA order of its rules requiring regulated entities to obtain prior express written consent from a consumer before placing a call to that consumer’s wireless phone number.  NCTA argues that the same relief that was given to the Direct Marketing Association and others is warranted for its members because they have “suffered the same confusion, and are exposed to the same kind of ‘pointless and expensive class action litigation’” as the entities that originally received the waiver.  NCTA noted in its petition that although the prospective aspect of the waiver was set to expire on October 7, its members would still benefit from it because it “would provide NCTA’s members sufficient time to comply with the prior express written consent requirement and would enable NCTA’s members to better defend claims and avoid unnecessary and costly litigation moving forward.”
• On November 3, 2015, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 15-1246) seeking comment on the petition.  Comments were due on December 3, 2015 and replies were due on December 18, 2015.

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

• The NAB seeks to have extended to its members the retroactive and prospective waiver of the Commission’s rules requiring regulated entities to obtain prior express written consent from a consumer before placing a call to that consumer’s wireless phone number.  The waiver was originally granted in the Commission’s July 2015 TCPA order to the Coalition of Mobile Engagement Providers, the Direct Marketing Association, and the Retail Industry Leaders Association.
• On September 25, 2015, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 15-1074) seeking comment on the petition.  Comments were due on October 26, 2015 and replies were due on November 9, 2015.

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

• The American Bankers Association seeks a reconsideration and modification of the exemptions granted to financial institutions in the Commission's Declaratory Ruling and Order. The exemption permits financial institutions to send automated, free-to-end-user calls and texts to mobile devices concerning potentially fraudulent transactions, breaches of customers' personal data, remediation measures to prevent identity theft, and notification of money transfers. However, the exemption permits calls and texts only to "the wireless telephone number provided by the customer." The ABA argues that this "provided by" limits the value of the exemption and order should be modified to read "exempted calls and texts may be sent only to affected customers and money transfer recipients."

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

• Fitness 19 (F-19), a national gym franchise, seeks a retroactive waiver of the application of 47 U.S.C. § 227 and FCC Order 12-21 "with respect to the requirement to obtain additional express consent from gym members prior to sending text message marketing correspondence through an automated telephone dialing system."  F-19 seeks the same benefit the FCC conferred upon members of the Direct Marketing Association (DMA).5.     
• F-19, like many other petitioners, is currently fighting a TCPA class action suit related to contacting its customers through automated messages.
• On September 25, 2015, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 15-1074) seeking comment on the petition.  Comments were due on October 26, 2015 and replies were due on November 9, 2015.

6. Kale Realty (filed July 23, 2015)

• Kale Realty (Kale) is seeking a retroactive waiver regarding the written consent requirements contained in section 64.1200(a)(2).  Kale Realty is fighting a putative class action lawsuit based on a single unsolicited text advertisement that Kale argues was in essence a job ad.  Kale had a prior personal and professional relationship with the recipient.
• On September 25, 2015, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 15-1074) seeking comment on the petition.  Comments were due on October 26, 2015 and replies were due on November 9, 2015.

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

• Mammoth Mountain’s petition seeks a declaratory ruling either that: (1) “consents obtained prior to the October 16, 2013 rule change through consumers’ voluntary provision of their telephone number remain valid as prior contractual obligations and invalidating these consents amounts to an improper retroactive impairment of Mammoth Mountain’s contractual rights”; or (2) the Commission misinterpreted the meaning of “prior express consent” in its 2012 order finding that prior express consent required a company to obtain the consumer’s written consent.
• Mammoth Mountain, like many other petitioners, is currently fighting a TCPA class action suit related to telemarketing calls made former customers.
• On March 9, 2015, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 15-300) seeking comment on the petition.  Comments were due on April 6, 2015 and replies are due on April 21, 2015.

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

• EEI and AGA have asked the Commission to issue a declaratory ruling that a “utility customer’s provision of a telephone number, including a cellphone number, to an energy utility satisfies the TCPA consent requirements for such customer to receive non-telemarketing, informational calls at that number related to the customer’s utility service.” 
• The petition notes that although the Commission has previously indicated that certain communications from a utility company to its customers are exempt from the TCPA’s consent requirements (i.e. for emergency communications), it has not issued a “comprehensive statement” on the issue of what consent is required for non-emergency communications from energy utilities.  The petition claims that the absence of such a statement has allowed “an aggressive plaintiffs’ bar” to pursue TCPA litigation against utility companies “that, in a rational world, would kindly be described as absurd.”
• On February 24, 2015, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 15-244) seeking comment on the petition.  Comments were due on March 26, 2015 and replies are due on April 10, 2015.

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

• Citizens Bank seeks a declaratory ruling that “when a called party has taken purposeful and affirmative steps to advertise her cell phone number as the point of contact for normal business communications, non-telemarketing calls made to that cell phone number are exempt from liability under” the TCPA.  The company argues that by “inviting the public, through advertisements, to call that cell phone number,” an individual has consented to receiving at least non-telemarketing calls – even if those calls are auto-dialed or pre-recorded.
• Citizens Bank notes in its petition that the company is fighting a TCPA lawsuit in which the plaintiff claims that Citizens Bank is vicariously liable for debt collection calls made to her cell phone (that she used in advertisements for her business) on behalf of Citizens Bank.  In support of its argument that the calls did not violate the TCPA, the company points to the statute’s legislative history and previous statements by the FCC indicating that in other contexts (i.e. facsimiles), making a number available to the public denotes consent to receive calls to that number.
• On February 12, 2015, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 15-209) seeking comment on the petition.  Comments were due on March 16, 2015 and replies were due on March 31, 2015.

Petitions Relating to “Junk” Faxing Rules

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

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

• Petitioner Joseph T. Ryerson & Son, Inc. (“Ryerson”) has asked the Commission to issue a declaratory ruling that “faxes that initiate in digital form and are received in digital form do not fall within the TCPA.”  Ryerson argues that these types of transitions are more akin to emails than traditional faxes, and therefore should be regulated under the CAN-SPAM Act.  It further argues that applying the TCPA to digital fax transmissions would violate the First Amendment and would be void for vagueness under the First and Fifth Amendments.
• Ryerson, like many other petitioners, is currently fighting a TCPA class action suit related to alleged unsolicited faxes received by the plaintiff from Ryerson.

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

• In its petition, Westfax sought clarification of several issues related to sending e-faxes, noting that he Commission had not updated its rules since 2006.  First, the company asked the Commission to clarify whether e-faxes are considered faxes, as well as whether and to what extent TPCA and Junk Fax Protection Act rules apply to e-faxes.  Second, they ask who is considered the "recipient of an e-fax.
• The petition also requests clarification on a number of questions related to "opt-out" requirements, including whether standard "opt-out" language would be acceptable and the liability of third-party fax broadcasters.

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:

• Megadent, Inc. (June 24, 2015) – granted 12/9/15 (DA 15-1402)
• Ivoclar Vivadent, Inc. (June 24, 2015) – denied 12/9/15 (DA 15-1402)
• Renaissance Systems and Services, LLC (June 25, 2015) – denied 12/9/15 (DA 15-1402)
• Zimmer Dental, Inc. (July 16, 2015) – denied 12/9/15 (DA 15-1402)
• Costco Wholesale, Corp. (July 20, 2015) – granted 12/9/15 (DA 15-1402)
• Athena Health, Inc. (August 6, 2015) – denied 12/9/15 (DA 15-1402)
• Ohio National Mutual, Inc. (August 21, 2015) – denied 12/9/15 (DA 15-1402)
• McVey Associates, Inc. (August 31, 2015) – withdrawn on 10/15/15
• Dental Fix Rx LLC (September 11, 2015) – granted 12/9/15 (DA 15-1402)
• Scrip Holding Co. (September 17, 2015) – granted 12/9/15 (DA 15-1402)
• Source Media LLC (September 21, 2015) – granted 12/9/15 (DA 15-1402)
  (Application for review of the waiver as applied to Source Media filed 1/5/16)
• Virbac Corporation (November 9, 2015)
• Advanced Care Scripts, Inc. (November 12, 2015)
• Fetch, Inc. d/b/a Petplan (November 25, 2015)
• AZCOMP Technologies, Inc. (December 4, 2015)
• Weinberg & Associates (December 8, 2015)
• Humana Insurance Company et al. (December 18, 2015)
• Papa Murphy's Holdings, Inc. and Papa Murphy's International L.L.C (February 22, 2016)
• Posture Pro, Inc. (February 23, 2016)
• LKN Communications, Inc., d/b/a ACN, Inc. (March 1, 2016)

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.

Other Petition

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

• Lifetime has asked the Commission to clarify that the TCPA and the Commission’s implementing rules “do not cover calls (including unsolicited, pr~recorded ones) providing information about television programing distributed by cable operators and cable programming networks that are intended to reach the cable operator's subscribers who are already entitled to watch such cable programming without having to pay any additional charges.”  Lifetime asserts that these calls are purely informational and not made for the purpose of advertising or marketing, and therefore not within the scope of the TCPA. 
• On February 5, 2016, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 16-128) seeking comment on the petition.  Comments were due on March 7, 2016 and replies are due on March 21, 2016.

2. Broadnet Teleservices, LLC (filed Sept. 16, 2015)

• Broadnet seeks 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.”  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.”
• On September 29, 2015, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 15-1094) seeking comment on the petition.  Comments were due on October 29, 2015 and replies were due on November 13, 2015.

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

• Anthem submitted a petition seeking a declaratory ruling and exemption regarding non-telemarketing healthcare calls.  Anthem asks that the FCC make non-telemarketing health care calls and text messages from health plans and providers subject to an “opt out” rather than “opt in” consent regime.  Anthem argues that these calls provide important information regarding the health and wellness of its members and provide an unique level of benefit to the consumer.
• Anthem also asks that new categories of calls be added to the FCC’s existing list of calls already subject to the opt-out regime. Anthem identifies those calls that are (1)  case management calls to engage consumers in the treatment of existing medical conditions (2) preventative medicine calls to arm patients with information necessary to seek preventive care or (3) calls to arm consumers with information about using and maintaining medical benefits.
• On August 31, 2015, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 15-979) seeking comment on the petition.  Comments were due on September 30, 2015 and replies were due on October 15, 2015.
• Note:  Although the petition was filed before the FCC’s TCPA Declaratory Ruling and Order (FCC 15-72), the Order did not address Anthem’s request.

4. RTI International (filed September 29, 2014)

• In its petition, RTI asks the FCC to “confirm that the TCPA does not restrict research survey calls made by or on behalf of the government.”  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.
• On November 19, 2014, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 14-1671) seeking comment on the petition.  Comments were due on December 23, 2014 and replies were due on January 12, 2015.

5. National Employee Network Association (filed August 5, 2014)

• NENA is seeking a declaratory ruling that “in certain limited circumstances, a long-standing relationship with a federal agency logically implies consent to receive autodialed and prerecorded non-telemarketing calls and text messages under the TCPA, and calls can be made through a public or private intermediary or associated third party that ‘stands in the shoes’ of the federal government.”
• 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.”
• On September 19, 2014, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 14-1358) seeking comment on the petition.  Comments were due on October 20 and replies were due on November 3.

6. Vincent Lucas (filed June 18, 2014)

• Vincent Lucas asks for an expedited declaratory ruling holding that a person is vicariously or contributorily liable if that person provides substantial assistance or support to any seller or telemarketer when that person knows or consciously avoids knowing that the seller or telemarketer is engaged in any act or practice that violates 47 U.S.C. § 227(b) or (c).
• The individual who filed this petition is currently involved in a lawsuit in which he alleges that three companies and two individuals “provided substantial assistance to several telemarketers while knowing that those telemarketers were engaged in practices that violate the TCPA.”  In his petition, Mr. Lucas claims that the magistrate judge in the litigation misinterpreted a former FCC ruling on vicarious liability and is planning to dismiss his vicarious and contributory liability claims.  
• On July 9, 2014, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 14-976) seeking comment on the petition.  Comments were due on August 8, 2014 and replies were due on August 25, 2014.

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

• Acurian filed a petition seeking clarification that telephone call to a residential telephone line seeking an individual’s participation in a clinical pharmaceutical trial is exempt from the restrictions on prerecorded calls under the TCPA.  Acurian argues in its petition that it does not make calls for a commercial purpose.  Alternatively, the petition asserts that if Acurian’s calls are found to be commercial, that they do not constitute telemarketing or advertising calls. 
• On February 20, 2014, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 14-229) seeking comment on the petition.  Comments were due on March 24, 2014 and replies were due on April 8, 2014.

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