Monthly TCPA Digest - June 2017

by Mintz Levin

Mintz Levin

We are pleased to present our Monthly TCPA Digest, providing insights and news related to the Telephone Consumer Protection Act (TCPA). This month’s issue covers the latest Commission releases as well as what’s new on Capitol Hill, including the TCPA hearing by the House Judiciary Subcommittee on the Constitution and Civil Justice, FCC nominations, and the latest developments concerning the regulation of ringless voicemails.

If you have suggestions for content you would like us to feature in this newsletter, or if you have any questions about the topics presented in this issue, please feel free to reach out to an attorney on Mintz Levin’s TCPA and Consumer Calling Practice team. You can click here to subscribe.

In This Edition:

Part I - TCPA: Regulatory

..Commission Releases

Part II - TCPA: Legislative

..The TCPA on Capitol Hill

Part I – TCPA: Regulatory

Commission Releases

  • The Commission released a Draft Second Notice of Inquiry (“Draft Second NOI”) seeking comment on a means for robocallers to verify whether a phone number has been reassigned from one consumer to another, so that they may avoid inadvertently placing calls to the wrong consumer and incurring TCPA liability. The Draft Second NOI is scheduled for consideration and adoption at the Commission’s July 13, 2017 Open Meeting.
    • Reporting Number Reassignments. The Draft Second NOI seeks comment on requiring voice service providers that use North American Numbering Plan telephone numbers to report when numbers are reassigned. Specifically, the Commission seeks comment on, among other things, the type of information voice service providers should report; whether the reporting requirement should apply to all voice service providers—including interconnected VoIP and wireline providers—given that the TCPA provides greater consumer protection in the wireless context; which entity should be responsible for reporting when a service provider obtains numbers from carrier partners instead of directly from the numbering administration; whether mobile virtual network operators should be treated the same as facilities-based providers; and the costs and benefits of voice service providers reporting reassigned number information.
    • Reporting Mechanism. The Commission also seeks comment on four alternative mechanisms for voice service providers to report reassignments and for robocallers to access that information: (i) a Commission-established central database administered by an entity selected by the Commission; (ii) a process by which voice service providers report reassigned number information to robocallers directly or to reassigned number data aggregators; (iii) a process through which each voice service provider offers robocallers and reassigned number data aggregators the ability to query the voice service provider’s own reassigned number information; and (iv) data reports made available by voice service providers to the public.
    • Additional General Matters. Last, the Commission seeks comment on a variety of general factors, including whether voice service providers should be compensated; the format in which data should be reported; how often the data should be reported; whether the reporting mechanism should also track which entities access the information and whether these entities must first meet any qualifications; reasonable access fees for the data; the risk of disclosure of customer proprietary network information without consumer consent; and the burdens on small businesses.
  • The Commission released a Draft Notice of Inquiry (“Draft NOI”) on methods to authenticate the source of telephone calls to reduce caller ID spoofing and unwanted and fraudulent telephone calls. The Draft NOI is scheduled for consideration and adoption at the Commission’s July 13, 2017 Open Meeting. The Draft NOI seeks comment on the following:
    • The Commission’s role in promoting adoption and implementation of authentication frameworks and/or assuring call authentication, and should the Commission take action, the timeframes or milestones it should consider.
    • The “SHAKEN” (Secure Handling of Asserted information using toKENS) proposal—a system of call authentication proposed by industry groups—as well as any alternatives. The “SHAKEN” proposal is for a governance system that would set policies on how service providers, telephone numbers, and other entities and sets of information are managed in the call authentication system.
    • The criteria by which the various roles within this authentication system should be selected, including the governance authority, the policy administrator, and certification authorities, and recommendations on entities that can fill these roles.
    • The technical operation and implementation of the SHAKEN proposal.
    • The impact of call authentication proposals on reducing unwanted robocalls on IP-based and legacy telephone systems and other public policy considerations, including privacy and security, and the costs and benefits of implementing call authentication.
  • All About the Message, LLC (“AATM”) has withdrawn its Petition for Declaratory Ruling, which asked the Commission to declare that the delivery of a voice message directly to a voicemail box does not constitute a call subject to the TCPA’s prohibitions on autodialers and prerecorded and artificial voices.

Part II – TCPA: Legislative

The Latest State-of-Play on the TCPA on Capitol Hill

House Judiciary Hearing on TCPA

In a sign of growing congressional interest in modernizing the Telephone Consumer Protection Act (TCPA), the House Judiciary Subcommittee on the Constitution and Civil Justice held a hearing on June 13th about the law and its impact on businesses and consumers. The hearing focused on the rise in TCPA litigation but also explored possible legislative changes to the law. Adonis Hoffman, a former Chief of Staff and Senior Legal Advisor to FCC Commissioner Mignon Clyburn, called for a liability cap on TCPA rewards and a safe harbor for substantial compliance with the law, while other witnesses argued for a damages cap, affirmative defenses, and a statute of limitations for filing TCPA complaints. Representative Steve King (R-IA), the subcommittee chairman; Representative Bob Goodlatte (R-VA), the full committee chairman; and Representative Trent Franks (R-AZ) all expressed support for reining in litigation over the TCPA. Their Democratic colleagues, Subcommittee Ranking Member Steven Cohen (D-TN) and Representative Jerrold Nadler (D-NY), defended the TCPA’s private right of action, while Representative Jamie Raskin (D-MD) advocated for clamping down on robocalls. As we have noted in previous digests, the TCPA bills that have the best chance of becoming law are those that strike the balance between strengthening the TCPA’s protections for consumers and reducing its ambiguity and compliance burdens for businesses.

FCC Nominations

On June 14th, President Donald Trump re-nominated Democrat Jessica Rosenworcel for a second term on the Federal Communications Commission (FCC). Although the Senate failed to hold a confirmation vote for her last year, it is expected to send Rosenworcel back to the FCC. That would leave just one vacancy at the Commission. Reserved for a Republican, that seat has been the source of speculation for months, as several different people, at one point or another, have been considered the frontrunner for it. The current frontrunner for the position is rumored to be Brendan Carr, the general counsel of the FCC. If Carr is the nominee, the Senate may confirm him and Rosenworcel simultaneously. However, it also could confirm Rosenworcel with Chairman Pai (whose term expires at the end of the year) and wait to confirm Carr, or whoever the President’s pick is, with Commissioner Clyburn (whose terms expires this month but who can serve on the Commission until the end of the year).

Regulatory Implications of FCC Nominations

A fully staffed FCC may be inclined to revisit some of the decisions that it issued in previous administrations regarding the TCPA. In a speech back in May, Commissioner O’Rielly said that if the FCC ends up revising these decisions it should: (1) permit legitimate businesses to engage in necessary communications with their customers; (2) change the definition of an “autodialer” to permit more efficient telemarketing by valid callers; and (3) target actual harms and bad actors, not legitimate companies.

One factor that is sure to affect how the FCC addresses the TCPA is the D.C. Circuit Court’s ruling on ACA International’s appeal of the FCC’s 2015 TCPA Omnibus Order. In October of 2016, the Court heard oral arguments, and it is expected to issue its decision in the near future. Whatever the Court’s decision, it could spur efforts in both Congress and the FCC to update the TCPA.

Legislative Implications of FCC Nominations

Telecom bills that had stalled in the Senate due to the standoff over Rosenworcel’s nomination may now finally come up for a vote on the floor. One of those bills, which we’ve written about before, is the “Spoofing Prevention Act of 2017” (S.134). Sponsored by Senator Bill Nelson (D-FL), the Ranking Member of the Senate Commerce Committee, this bill would close legal loopholes that allow bad actors to “spoof” (i.e., to present false caller ID information) in order to misrepresent themselves in phone calls and texts. The Senate Commerce Committee unanimously approved this bill at its January markup. In the House, Representative Grace Meng (D-NY) introduced a companion measure, titled the Anti-Spoofing Act of 2017 (H.R. 423), which the lower chamber passed in January by a vote of 398-5.

Ringless Voicemails

Outside of legislating on the TCPA, Congress also may have a hand in shaping regulations based on the law. On June 14th, Senator Ed Markey (D-MA) led a letter signed by ten other senators to FCC Chairman Ajit Pai urging him not to grant a petition from All About the Message, LLC that would exempt ringless voicemails from the TCPA’s autodialer protections. The following week, Representative Dan Lipinski (D-IL) sent to Chairman Pai a companion letter, which thirteen of his House colleagues joined. However, the letter came a day after All About the Message withdrew its petition for a declaratory ruling. Asked about the company’s decision at Thursday’s FCC Open Meeting, Chairman Pai said that he had only “recently learned” of it but pledged that he and FCC staff would take “appropriate course.”

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Mintz Levin | Attorney Advertising

Written by:

Mintz Levin

Mintz Levin on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.