I. New and Noteworthy
II. Awaiting Decision (Items on "Circulation")
III. Other Pending Petitions
    a. Petitions Relating to "Prior Express Written Consent"
    b. Petitions Relating to Automatic Telephone Dialing Systems (ATDS) 
    c. Petitions Relating to "Junk" Faxing Rules
    d. Other Petitions

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

     FCC Adopts Declaratory Ruling on Call Blocking and FNPRM on SHAKEN/STIR
 
On June 6, 2019, the FCC adopted a declaratory ruling that allows carriers to block on an opt-out basis calls that spoof legitimate, in-service numbers when the blocking is based on “reasonable analytics” methodologies.
 
This ruling clarifies that customer consent can be on an opt-out basis, resolving uncertainty from a 2017 order.  In that order, the Commission decided that carriers could block calls on behalf of their customers without violating their call completion obligations under the Communications Act so long as the customers consented, but certain language in the order made it unclear whether the consent could be on an opt-out basis.  Carriers offering opt-out call-blocking programs must offer sufficient information, in a manner that is clear and easy to understand, so that their customers can make an informed choice as to whether they wish to remain in the program or opt out.  This includes information on the types of calls that may be blocked and the risks of blocking wanted calls.  Additionally, the Commission expects the opt-out process to be simple and straightforward.

The declaratory ruling did not specify what types of analytics must be used for a call-blocking program, saying that such programs can be “based on any reasonable analytics designed to identify unwanted calls.”  It does provide, however, that a call-blocking program may be based on a combination of factors, including large bursts of calls in a short timeframe, low average call duration, low call completion ratios, sequential dialing patterns, and improper SHAKEN/STIR authentication.

The Commission also adopted a Further Notice of Proposed Rulemaking (“FNPRM”) that proposes to create a safe harbor for carriers that block calls when call authentication fails under SHAKEN/STIR.  It also seeks comment on extending the safe harbor when carriers block unsigned calls, but specifically excludes consideration of call-blocking based on the different levels of attestation that can be assigned under the framework.  Additionally, the FNPRM proposes to require carriers to implement SHAKEN/STIR if they have failed to do so by the end of 2019.  Comments are due July 24, 2019, and reply comments on August 23, 2019.

     NANC Given Extension to Submit Report on Technical Issues for Reassigned Numbers Database
 
The Consumer and Governmental Affairs Bureau and Wireline Competition Bureau of the FCC granted an extension to September 13, 2019 for the North American Numbering Council (“NANC”) to file a report containing recommendations on technical issues related to the development of a reassigned number database.  In particular, the report will address operational issues and technical issues regarding how fees will be collected from those that use the database.  As reasons for requesting the extension, NANC cited “the complexity of the FCC’s referral, the delay caused by the month-long government shutdown, and difficulties that it has had in acquiring similar technical requirements associated with other databases,” as well as NANC members being concurrently engaged on other Commission referrals.  The original deadline was June 13, 2019, and NANC had requested an extension until April 13, 2020.
 
     FCC Grants Petitions for Waiver of Prior-Express-Written-Consent Rules to bebe and ViSalus

The Commission granted retroactive waivers of its prior-express-written-consent rule adopted in 2012 to bebe stores, inc. and ViSalus, Inc. for the period between October 16, 2013, and October 7, 2015.  The Commission found that there was good cause to grant the waivers because the companies are similarly situated to prior petitioners that were granted similar waivers due to confusion about whether written consent obtained prior to the 2012 rule change was still valid.  The Commission concluded that, as a result of the confusion, the companies needed additional time to obtain updated written consent from consumers that had given written consent before the 2012 rule went into effect.  At the time they filed their petitions, both companies were fighting TCPA class action suits related to telemarketing calls made to former customers.

     Senate Passes TRACED Act to Address Robocalls

On May 24, 2019, the Senate passed the Telephone Robocall Abuse Criminal Enforcement and Deterrence (“TRACED”) Act (S-151) in a 97-1 vote.  In its current form, the bill would allow the FCC to levy civil penalties of up to $10,000 per call when a caller intentionally violates the TCPA and would extend the statute of limitations to three years for such violations.  The bill would also require the FCC to issue a rule within 18 months after enactment requiring carriers to implement the STIR/SHAKEN framework, if they have not done so already, with a safe harbor for when carriers could block calls based on authentication under the framework.  The Commission would be required to reassess the efficacy of the framework every three years.  Additionally, the FCC would be required to submit an annual report to Congress about its enforcement of the TCPA and related regulations, and would require the Attorney General and FCC Chairman to convene an interagency working group to study Government prosecution of TCPA violations.  The House of Representatives has not yet taken action on robocall legislation, but several similar proposals have been introduced or are in development.

     Bipartisan Stopping Bad Robocalls Act Introduced in the House

On June 20, 2019, a bipartisan group of legislators, led by House Energy and Commerce Chairman Frank Pallone, Jr. (D-NJ) and Greg Walden (R-OR), introduced the Stopping Bad Robocalls Act.
 
The bill directs the FCC to do the following:  (1) issue rules to better effectuate the intent of the TCPA, including updates on descriptions of automatic telephone dialing systems and artificial or prerecorded voice calls, clarification of withdrawal of consent by consumers, and provisions to address circumvention or evasion of the TCPA; (2) file a report with Congress within one year on the implementation of a reassigned number database (“RND”); (3) annually submit a report to Congress, prepared in consultation with the FTC, on enforcement under the TCPA; (4) implement rules requiring carriers to implement call authentication technology and reassess the efficacy of the technology every two years; (6) prescribe regulations that streamline how private entities can inform the FCC of TCPA violations with the FCC within eighteen months; and (7) study whether VoIP providers must maintain call records to allow calls to be traced and submit a report to Congress within eighteen months on the results of the study.

Other parts of the bill would update the definition of “called party” to read “the current subscriber or customary user of the telephone number to which the call is made, determined at the time when the call is made,” which codifies the definition of the rule adopted by the FCC in 2015, but that was overturned by the D.C. Circuit in 2018 in ACA International v. FCC.  The change would not go into effect until the RND is established.  The bill would also amend the Communications Act to make Section 503(b) inapplicable to TCPA violations, meaning that a citation would not be needed for a forfeiture penalty.  Additionally, the bill would increase the statute of limitations for forfeiture penalties to three years for unintentional violations of the TCPA and four years for intentional violations.

Awaiting Decision (Items on "Circulation")

Other Pending Petitions

Petitions are grouped by their primary subject matter.

Petitions Relating to "Prior Express Written Consent"

1. SGS North America, Inc. (filed December 17, 2018)

• SGS has asked the FCC to “clarify and confirm that prior express written consent is required only when a call advertises the commercial availability or quality of any property, good, or service, or otherwise clearly encourages the purchase or rental of, or investment in, property, goods, or services within the four corners of the communication itself.  Only when the call includes a free offer should anything extraneous to the content of the communication itself be considered.”  According to the petition, confusion surrounding the FCC’s 2012 TCPA Order has resulted in legitimate business calls being subject to TCPA lawsuits.  Therefore, the petition seeks additional guidance, as set forth in the request, on how “dual purpose” calls should be handled under the TCPA. 
• Alternatively, SGS seeks relief that would be specific to its business, namely, a retroactive waiver of the prior express written consent requirements for calls that solely seek to schedule, confirm, or otherwise discuss a vehicle inspection.
• On December 20, 2018, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 18-1290) seeking comment on the petition.  Comments were due on January 24, 2019 (but extended to January 30 due to the federal shutdown) and replies were due on February 8, 2019.

2. Life Insurance Direct Marketing Association et al. (filed June 18, 2018)

• The petitioners are seeking a ruling that life insurance agents and brokers are permitted to call their customers while the life insurance policies sold by servicing agents are in effect and for a period of 18 months after the policies expire based on an established business relationship between life insurance servicing agents and their customers.
• On July 6, 2018, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 18-707) seeking comment on the petition. Comments were due on August 6, 2018 and replies were due on August 21, 2018.

3. Credit Union National Association (filed September 29, 2017)

• The Credit Union National Association (CUNA) “requests that the Commission exempt from the TCPA’s “prior express consent” requirement informational calls made by credit unions to wireless numbers in one of two circumstances: (1) the wireless subscriber has an established business relationship with the credit union; or (2) the calls are in fact not charged to the called party, for example, because the called party’s wireless plan has unlimited minutes and texts.”  CUNA suggests that the exemption would be applicable only to calls that provide information such as “opportunities for members to address an outstanding debt before incurring additional fees; account balance and overdraft alerts; possible security breaches of members’ personal and financial information; and payment card usage and fraud alerts,” as well as “calls and texts from credit unions concerning credit union policy, voting, or financial education material.” 
• To minimize potential privacy concerns, CUNA proposes that credit unions that make calls or send texts pursuant to the requested exemption would “provide an easy to use opt-out mechanism” and comply with the following conditions: (1) Calls and text messages must identify the name of the credit union and include contact information for the credit union (for voice calls, these disclosures would need to be made at the beginning of the call); (2) Each credit union shall send or place only one call or text message per day, up to a maximum of three calls or text messages combined per week from a specific credit union (unless the call or text is also exempted based on the free-to-end-user exemption for certain communications from financial institutions or the BBA amendment concerning the collection of federally-backed debt); and (3) Credit unions relying on this exemption must offer the party being contacted an easy to use and effective ability to opt out of receiving future autodialed or prerecorded or artificial voice calls and text messages, which the credit union will honor.
• CUNA claims that this relief is needed to “eliminate the antiquated distinctions between informational calls made to residential lines and those made to wireless subscribers.”  According to CUNA, the FCC has broad authority to adopt the requested exemption under the TCPA even though such an exemption is not expressly authorized under the statute, and that the FCC has exercised similar authority in adopting other TCPA exemptions.  It also claims that the requested exemption aligns with guidance from the CFPB regarding communications with distressed and financially vulnerable consumers.
• On October 6, 2017, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 17-798) seeking comment on the petition.  Comments were due on November 6, 2017 and replies were due on November 21, 2017.

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

• Two consumer petitioners are seeking to reverse two FCC interpretations of the “prior express consent” provision of the TCPA.  First, the petitioners challenge a 1992 order in which the Commission determined that “persons who knowingly release their phone numbers have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary.”  Second, the petitioners question a 2008 Commission order which concluded that “the provision of a cell phone number to a creditor, e.g., as part of a credit application, reasonably evidences prior express consent by the cell phone subscriber to be contacted at that number regarding the debt.”  The petitioners claim that the FCC contravened Congressional intent when it adopted these two orders by improperly reading an implied consent provision into the TCPA.  As such, they seek a declaratory ruling or a rulemaking that would result in the following: (1) overturning previous interpretations of the prior express consent provision such that implied consent may be given in certain circumstances; and (2) adoption of a uniform requirement to satisfy the prior express consent requirement for both cellular and residential telephone numbers.
• On February 8, 2017, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 17-144) seeking comment on the petition.  Comments were due on March 10, 2017 and replies were due on March 27, 2017.

• MMT seeks a declaratory ruling to clarify that neither the TCPA nor the FCC’s July 2015 Omnibus order “require a party transmitting a text message to create or make available to consumers a specific or particular method by which a consumer may revoke prior express consent to be texted, including bilateral reply “STOP” text messaging functionality.”  The petition also asks the Commission to clarify that a “reasonable method” of revoking consent “must, at a minimum, be a method that actually reaches the texting party.”  MMT is a text broadcaster, and claims that many of its licensees are facing TCPA litigation, in part because MMT’s system was not previously set up for bilateral text messaging functionality such that a text recipient could revoke consent by texting the word “STOP.”  MMT argues that nothing in the TCPA mandates that a texting party provide consumers any specific or particular method to revoke consent, so long as the method employed is reasonable.

7. 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."

Petitions Relating to Automatic Telephone Dialing Systems (ATDS)

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

• The U.S. Chamber of Commerce Institute for Legal Reform and 17 co-petitioners are seeking a declaratory ruling that (1) to be an “ATDS,” equipment must use a random or sequential number generator to store or produce numbers and dial those numbers without human intervention; and (2) only calls made using actual ATDS capabilities are subject to the TCPA.  The petition was filed in response to the D.C. Circuit’s decision to overturn the FCC’s interpretation of ATDS in the 2015 Omnibus TCPA Order, and argues “the court provided a logical roadmap for how the Commission should interpret ATDS.”
• On May 14, 2018, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 18-493) seeking comment on the petition.  Comments were due on June 13, 2018 and replies were due on June 28, 2018.

Petitions Relating to "Junk" Faxing Rules

1. Akin Gump Strauss Hauer & Feld LLP (filed February 26, 2019)

• Akin Gump is requesting a declaratory ruling that “a fax broadcaster is the sole liable ‘sender,’ when it both commits TCPA violations and engages in deception or fraud against the advertiser (or blatantly violates its contract with the advertiser) such that the advertiser cannot control the fax campaign or prevent TCPA violations.”  According to the petition, Akin Gump’s requested clarification is consistent with the FCC’s 2006 TCPA order which concluded that the party whose goods and services are advertised in an unsolicited fax is not always the liable sender, and would also alleviate judicial confusion regarding fax sender liability.
• On March 7, 2019, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 19-159) seeking comment on the petition.  Comments were due on April 8, 2019 and replies were due on April 23, 2019.

2. Best Doctors, Inc., Petition for Declaratory Ruling (filed Dec. 14, 2018)

• Best Doctors, Inc., publisher of a “Best Doctors in America” list, seeks a declaratory ruling that faxes seeking verification of contact information and the operational status of an office are not “advertisements” within the meaning of the Junk Fax Protection Act of 2005.  Best Doctors states that, as part of its verification process of doctors recommended for the List, it faxes to the doctor’s office an information form verifying the doctor’s contact information and whether the doctor is continuing to see new patients.  A copy of the form used is provided as part of the petition.  Best Doctors contends that the verification form is not “advertising” under the Junk Fax Protection Act because it does not offer the “commercial availability or quality of any property, goods or services” of Best Doctors, Inc.  It seeks a declaratory ruling to resolve conflicting court decisions concerning whether information beyond the fax itself can be considered to determine if a fax is an “advertisement.”  Best Doctors notes that petitions filed by Inovalon, Inc. and M3 USA Corporation raise similar questions concerning the meaning of an “advertisement” under the statute.
• On December 21, 2018, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 18-1296) seeking comment on the petition.  Comments were due on January 25, 2019 (but extended to January 30 due to the federal shutdown) and replies were due on February 8, 2019.

3. Inovalon​ (filed February 19, 2018)

• Inovalon is a contractor of multiple regional and national “health plans” for which it aggregates consumer health data.  To collect this data, the company contacts healthcare providers to obtain patients medical records through a variety of channels, including faxing.  Inovalon was recently sued by a medical provider to whom it sent a fax requesting medical records and informing the recipient about its “no cost” collection and digitization services.  In its petition, Inovalon has asked the FCC to declare that: (1) Faxes sent by a health insurance plan’s designee to a patient’s medical provider, pursuant to an established business relationship between the health plan and provider, requesting patient medical records are not advertisements under the TCPA; and (2) Faxes that offer the free collection and/or digitization of patient medical records, and which do not offer any commercially available product or service to the recipients are not advertisements under the TCPA.
• On February 23, 2018, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 18-180) seeking comment on the petition.  Comments were due on March 26, 2018 and replies were due on April 10, 2018.

4. Amerifactors Financial Group, LLC​ (filed July 13, 2017)

• Amerifactors seeks a declaratory ruling that the TCPA does not apply to fax advertisements that the recipient receives through an online fax service or on a device other than a fax machine.  Amerifactors argues that these types of transmissions do not fit within the plain meaning of the statutory language, and that they do not cause the harms that Congress sought to avoid in enacting the TCPA.  It further asserts that the 2015 proclamation by the Consumer and Governmental Affairs Bureau that “e-faxes” are subject to the TCPA was based on insufficient information about modern fax technology (such as online fax services).  Amerifactors next suggests that “the petition does not seek to deprive consumers of a remedy for illegitimate fax advertisement transmissions.  Rather, it seeks to rein in the number of putative TCPA class actions arising from fax advertisements, which appear to benefit only plaintiffs’ attorneys.”  Finally, Amerifactors argues that applying the TCPA to faxes received through an online fax service would violate the First Amendment. On June 12, 2019, AmeriFactors filed a white paper with the Commission discussing how changes in technology and market share heighten concerns that application of the TCPA to e-faxes would violate the First Amendment of the U.S. Constitution.
• At the time Amerifactors filed its petition, it was fighting a TCPA class action suit related to faxes sent on its behalf that purportedly violate the statute.
• On July 18, 2017, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 17-690) seeking comment on the petition.  Comments were due on August 17, 2017 and replies were due on September 1, 2017.

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

• M3 USA Corporation is a third-party provider of qualitative and quantitative market research surveys focused on healthcare-related topics.  One of the methods M3 uses to “facilitate participation in its blinded market research surveys” is to send invitations via fax to several types of healthcare professionals.  According to the petition, “every market research survey conducted by M3 is reviewed and analyzed to ensure that the surveys involve only opinion collection and not advertising or marketing.”  However, at the time M3 filed its petition, it was fighting a TCPA class action suit related to faxes the company sent in connection with its surveys.
• ​M3 has asked the Commission for a declaratory ruling which includes the following: (1) there is no presumption under the TCPA that faxes sent by for-profit businesses are pretexts for advertisements; (2) informational faxes are not pretexts for advertisements under the TCPA unless the transmission promotes specific, commercially-available property, goods or services to the recipient of the fax; (3) market research surveys do not constitute property, goods or services vis-à-vis the  persons taking the surveys under the TCPA; and (4) Invitations to participate in market research surveys are not advertisements under the TCPA unless commercially-available property, goods or services are promoted in the fax itself or during the survey itself.  According to the petition, such declarations would be consistent with FCC precedent and guidance with regard to advertising and surveys, and is necessary to resolve uncertainty in the courts about whether fax transmissions like those sent by M3 are actually pretexts for advertising.
• On March 28, 2017, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 17-288) seeking comment on the petition.  Comments were due on April 27, 2017 and replies were due on May 15, 2017.

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

• RingCentral seeks a declaratory ruling that (1) a fax broadcaster whose facilities or services are used by a third party content generator is not itself the "sender" of a facsimile, for purposes of the TCPA’s prohibition against sending unsolicited advertisements by facsimile; and (2) de minimis promotional phrases contained in otherwise bona fide informational, transactional or even another party's unsolicited fax advertising communications do not constitute “unsolicited advertisements” in violation of the TCPA.  Alternatively, RingCentral has asked the Commission to clarify that in certain limited circumstances fax broadcaster “senders” can rely on third party “consent” for sending de minimis promotional information along with a facsimile that is otherwise lawfully sent by the fax broadcaster's customer to a third party recipient. 
• RingCentral filed its petition in part because it has been named as a defendant in a class action lawsuit alleging TCPA violations based on fax advertisements it sent to third party recipients on behalf of its customers.
• On July 29, 2016, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 16-863) seeking comment on the petition.  Comments were due on August 29, 2016 and replies were due on September 13, 2016.

7. Joseph T. Ryerson & Son, Inc. (filed November 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.
• At the time Ryerson filed its petition, it was fighting a TCPA class action suit related to alleged unsolicited faxes received by the plaintiff from Ryerson.

 Special Note Regarding “Solicited Faxes”

Anda, Inc. Retroactive Waiver.  On October 30, 2014, the FCC released an order addressing 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. 

Related orders granting retroactive waivers to 154 petitioners were granted by the Consumer & Governmental Affairs Bureau on August 28, 2015 (DA 15-976), December 9, 2015 (DA 15-1402) and November 2, 2016 (DA 16-1242).  Seven applications for review of the August 28, 2015 order and three applications for review of the November 2016 order were filed in the TCPA docket.  The Commission has not responded to these applications for review.

Bais Yaakov of Spring Valley Appeal and Subsequent Orders.  In March 2017, the D.C. Circuit Court of Appeals ruled that the FCC lacked authority under the TCPA to adopt the “Solicited Fax Rule” (requiring opt-out language on faxes sent with the recipient’s prior express consent) and vacated the Anda order.  Bais Yaakov of Spring Valley, et al. v. FCC, 852 F.3d 1078 (D.C. Cir. 2017). 

On November 14, 2018, the FCC’s Consumer and Governmental Affairs Bureau issued an order eliminating the FCC rule that required opt-out consent language on faxes sent with prior express consent (aka “solicited faxes”).  Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Order (DA 18-1159).  The Bureau stated that the decision was required by the “non-discretionary mandate” of Bais Yaakov.  The Bureau also dismissed as moot 10 pending requests for waiver of the rules and two petitions for reconsideration of retroactive waivers previously granted by the Bureau.  However, the ten applications for review of the Bureau waiver orders (see above) are pending before the full Commission and could not be addressed by the Bureau on delegated authority.  On December 14, 2018, a group of TCPA plaintiffs filed an application for review asking the full Commission to vacate the CGB order.  Two oppositions to the application for review were filed on December 31, 2018.  The FCC has not yet responded to any of these filings.

• Great Lakes Higher Education Corp., Navient Corp., Nelnet, Inc., the Pennsylvania Higher Education Assistance Agency, and the Student Loan Servicing Alliance seek reconsideration of the rules adopted by the FCC on August 11, 2016 to implement the government debt collection call exemption to the TCPA adopted as part of the Bipartisan Budget Agreement Act of 2015. In particular, the parties challenge the Commission's decision to impose a three-call-per-month limit, as well as the limitation of calls solely to the debtor, as being unsupported by the statute and contrary to Congress's intent in adopting the exemption. They also generally challenge the FCC's interpretation of its rulemaking authority as impermissibly broad.

• The joint petitioners seek clarification from the FCC regarding certain statements in the 2015 Omnibus TCPA Order related to non-telemarketing healthcare calls.  Specifically, the petitioners have asked the FCC to issue a declaratory ruling and/or clarify two items: (1) that the provision of a phone number to a “covered entity” or “business associate” (as those terms are defined under HIPAA) constitutes prior express consent for non-telemarketing calls allowed under HIPAA for the purposes of treatment, payment, or health care operations; and (2) that the term “healthcare provider” in paragraphs 141 and 147 of the 2015 Omnibus TCPA Order encompasses “HIPAA covered entities and business associates.”  The petitioners assert that these clarifications are necessary to harmonize the TCPA and HIPAA, and point out that the FCC has previously looked to HIPAA for guidance on how to interpret healthcare calls under the TCPA.
• On August 19, 2016, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 16-947) seeking comment on the petition.  Comments were due on September 19, 2016 and replies were due on October 4, 2016.

• The petitioner, an attorney with a home-based business, has asked the Commission to clarify that the rules prohibiting robocalls “apply to calls made to home-business telephone lines that are registered with the telephone-service provider as residential lines.”  He argues that such a clarification would be consistent with the language of the TCPA which states that the robocall provision of the Act applies to “any residential telephone line.”  He further asserts that this interpretation would be consistent with prior statements by the FCC on this issue. 
• At the time Mr. Bank filed his petition, he was appealing a dismissal by the U.S. District Court for the Eastern District of New York of his class action lawsuit for TCPA violations.  Following submission of his petition, the FCC filed an amicus curiae brief in support of Mr. Bank’s request to stay the appellate case pending the Commission’s disposition of his FCC petition.
• On March 31, 2016, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 16-341) seeking comment on the petition.  Comments were due on May 2, 2016 and replies were due on May 17, 2016.

• 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 were due on March 21, 2016.

• 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.

14. 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).
• At the time Mr. Lucas filed his petition, he was involved in a lawsuit in which he alleged 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.

15. 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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