Kelley Drye’s Communications Practice Group presents this comprehensive 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:

On July 10, 2015, the Federal Communications Commission (“FCC” or the “Commission”) released the text of its omnibus Declaratory Ruling and Order (“TCPA Declaratory Ruling and Order” or “Ruling”), which the Commission adopted by a 3-2 vote almost a month earlier, on June 18, 2015.  In the Ruling, the FCC responded to 21 petitions by a number of companies and trade associations who sought relief or clarification regarding the requirements of the Telephone Consumer Protection Act of 1991 (“TCPA”).  Most notably, the Ruling redefines what equipment falls within the definition of “autodialer,” specifies liability for calls to reassigned telephone numbers, provides consumers with a right to revoke consent by any reasonable means, and establishes new exceptions for financial and healthcare related calls.  The Ruling  also clarifies that carriers and VoIP providers are allowed to implement call blocking technologies upon the request of consumers who want to use such technologies to block unwanted calls, defines a “caller” for purposes of the TCPA, permits entities to send a one-time text immediately in response to a consumer’s request for information, and provides an additional 90 days for certain petitioners to replace prior consents with consent obtained using the language required in the FCC rule changes that took effect on October 16, 2013. 

Kelley Drye’s Client Advisory on the Ruling is available here: http://www.kelleydrye.com/publications/client_advisories/0985

Awaiting Decision (Items on “Circulation”)

None

Other Pending Petitions

Petitions are grouped by their primary subject matter.

Petitions Relating to “Prior Express Written Consent”

1. 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.

2. 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.

3. 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

Between January 2013 and October 2014, the Commission has received more than two dozen petitions related to the “opt-out” language requirement for faxes sent with the recipient’s permission.  The following petitions pertaining to this requirement are still pending in the TCPA docket: 

1. Henry Schein, Inc. (filed June 19, 2015)

• The company requests a declaratory ruling from the FCC stating that the opt-out language in its fax advertisements met the FCC’s requirements that the language be (1) clear and conspicuous; (2) communicated that the recipient could request the sender to send no future advertisements and that compliance was mandated by law within a timeframe less than 30 days; (3) set out the requirements for an effective opt-out request; and, (4) included the requisite contact information, which permitted individuals or businesses to make an opt-out request 24 hours a day, 7 days a week. The company also seeks a determination that their notice is proper and does not need to repeat verbatim the text of the Commission’s rules.
• Henry Schein had separately requested a retroactive waiver of 47 C.F.R. §64.1200(a)(4)(iv) as applied to fax advertisements sent before April 30, 2015, to recipients that had provided prior express invitation or permission. Petition of Henry Schein, Inc. for Retroactive Waiver of 47 C.F.R. § 64.1200(a)(4)(iv), CG Docket Nos. 02-278, 05-338 (filed December 17, 2014).

3. 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 TCPA 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.

Further, since the order was released, the following parties have sought retroactive waivers on this issue:

• Howmedica Osteontics Corporation, Stryker Corporation, Stryker Sales Corporation, and Stryker Biotech, LLC (Nov. 7, 2014)
• Emery Wilson Corporation d/b/a Sterling Management Systems (Nov. 10, 2014)
• ACT, Inc. (Nov. 12, 2014)
• Amicus Mediation & Arbitration Group, Inc. (Nov. 13, 2014)
• Alma Lasers, Inc. (Nov. 14, 2014)
• Den-Mat Holdings, LLC (Nov. 20, 2014)
• ASD Specialty Healthcare Inc., d/b/a Besse Medical, AmerisouceBergen Specialty Group, Inc., and AmericansourceBergen Corp. (Nov. 20, 2014)
• Apex Energetics, Inc. (Nov. 21, 2014)
• McKesson Corporation (Nov. 25, 2014)
• Sunwing Airlines, Inc., Vacation Express USA Corp., and Sunwing Vacations, Inc. (Nov. 26, 2014)
• American Association for Justice (Nov. 26, 2014)
• ZocDoc, Inc. (Dec. 4, 2014)
• J.L. Barnes Insurance Agency, Inc. d/b/a JLBG Health (Dec. 5, 2014)
• St. Luke’s Center for Diagnostic Imaging, LLC (Dec. 8, 2014)
• CDI Open MRI of Missouri, LLC (Dec. 8, 2014)
• Senco, Inc. (Dec. 10, 2014)
• Eat Street, Inc. (Dec. 12, 2014)
• Henry Schein, Inc. (Dec. 17, 2014)
• Philadelphia Consolidated Holding, Corp. et al. (Dec. 19, 2014)
• SME Inc., USA d/b/a Superior Medical Equipment (Dec. 29, 2014)
• Dental Solutions, Inc. d/b/a Hogan Dental Laboratory (Dec. 31, 2014)
• A-S Medication Solutions, LLC (Jan. 4, 2015) «
• Surefire Fulfillment Services, Inc. d/b/a Surefire Health and Gary Mills (Jan. 5, 2015)
• Medversant Technologies, LLC (Jan. 8, 2015)
• Social UPS, LLC; Virtual Lending Source, LLC; Telnform, LLC (Jan. 8, 2015)
• Andrew Lichtenstein, Inc. d/b/a Lichtensteinre d/b/a Doctormortgage.com; Andrew Lichtenstein   (Jan. 14, 2015)
• Zoetis, Inc., f/k/a Pfizer Animal Health; Zoetis LLC; Zoetis Products LLC (Jan. 16, 2015)
• RadNet Management, Inc. (Jan. 16, 2015)
• Houghton Mifflin Harcourt Publishers, Inc.; Houghton Mifflin Harcourt Publishing Company; Laurel Kaczor (Jan. 20, 2015)
• Grey House Publishing, Inc. (Jan. 22, 2015)
• American Institute for Foreign Study, Inc. (Jan. 23, 2015)
• EXP Pharmaceutical Services Corp. (Jan. 23, 2015)
• Dongili Investment Group, Inc.; Label Tape Systems, Inc. (Jan. 23, 2015)
• Premier Health Exchange, Inc.; Premier Health Exchange West, Inc. (Jan. 23, 2015)
• Creditsmarts Corp. (Jan. 29, 2015)
• Water Cannon, Inc. (Jan. 30, 2015)
• National Pen Co LLC; National Pen Holdings, LLC (Feb. 13, 2015)
• Boehringer Ingelheim Pharmaceuticals, Inc.; Boehringer Ingelheim Corporation (Feb. 25, 2015)
• Healthways, Inc.; Healthways WholeHealth Networks, Inc. (Mar. 2, 2015)
• Park Surgical Company, Inc. (Mar. 3, 2015)
• USI, Inc. (Mar. 11, 2015)
• Esoate North America, Inc. (Mar. 12, 2015)
• Big Hairy Dog Information Systems, Inc.; Retail Pro International, LLC (Mar. 12, 2015)
• Prodigy Diabetes Care, LLC (Mar. 12, 2015)
• Solutions on Hold, LLC d/b/a Dentistry on Hold (Mar. 13, 2015)
• Kirby Lester, LLC (Mar. 16, 2015)
• Consumer Energy Solutions, Inc. (Mar. 26, 2015)
• Practice Recruiters, LLC (Mar. 27, 2015)
• Industrial Packaging Supplies, Inc. (Apr. 3, 2015)
• Competitive Health, Inc.; First Access, Inc. (Apr. 3, 2015)
• American Health Service Sales Corporation (Apr. 6, 2015)
• Virtuox, Inc. (Apr. 6, 2015)
• Nomax, Inc. (Apr. 13, 2015)
• Heska Corporation (Apr. 14, 2015)
• Odyssey Services Inc. (Apr. 14, 2015)
• GE Healthcare, Inc. (Apr. 15, 2015)
• American Power & Gas LLC; AP&G Holdings LLC; Tom Cummins (Apr. 17, 2015)
• Jay Geier’s Scheduling Institute (Apr. 20, 2015)
• Kaberline Healthcare Informatics, Inc. (Apr. 22, 2015)
• Logistic Innovations, LLC (Apr. 24, 2015)
• CCI Investments, LLC d/b/a CareWorks Consultants, Inc. (Apr. 27, 2015)
• Royal Canin U.S.A., Inc. (Apr. 27, 2015)
• Salix Pharmaceuticals, Inc.; Salix Pharmaceuticals, Ltd. (Apr. 27, 2015)
• Cephalon, Inc.; Cephalon Clinical Partners, L.P.; Cephalon Development Corporation (Apr. 27, 2015)
• Saratoga Aesthetics, LLC (Apr. 27, 2015)
• Endo Pharmaceuticals, Inc; Endo Pharmaceuticals Solutions, Inc.; Endo Pharmaceuticals Valera Inc.; Endo Health Solutions Inc.; Endo Pharma LLC; Endo Pharma Delaware Inc. (Apr. 27, 2015)
• Five-M Software Systems Corporation (Apr. 28, 2015)
• Valeant Pharmaceuticals North America, LLC (Apr. 28, 2015)
• Navinet, Inc. (Apr. 28, 2015)
• First Index, Inc. (Apr. 28, 2015)
• Integrated Pain Management, S.C.; Tian Medical, LLC; Tian Medical, Inc.; Dr. Tian Xia (Apr. 28, 2015)
• Electronic Funds Source LLC (Apr. 28, 2015)
• TruckersB2B, LLC (Apr. 28, 2015)
• Graduation Source, LLC; Graduation Solutions LP; Jesse Alexander (Apr. 29, 2015)
• American Homepatient, Inc. (Apr. 29, 2015)
• Versa Cardio, LLC (Apr. 29, 2015)
• International Dental Supply Co. (Apr. 29, 2015)
• Wells Fargo & Company (Apr. 29, 2015)
• UBM LLC (Apr. 29, 2015)
• ChappellRoberts, Inc. (Apr. 29, 2015)
• Direct Energy Services, LLC; Direct Energy Business, LLC; Direct Energy, LP; Direct Energy Marketing Inc.; First Choice Power, L.P.; CPL Retail Energy L.P.; Direct Energy US Home Services, Inc.; Energy America, LLC; Astrum Solar, Inc.; Bounce Energy, Inc.; Clockwork, Inc.; Clockwork IP, LLC; NYSEG Solutions, LLC; Gateway Energy Services Corporation; and WTU Retail Energy L.P. (Apr. 29, 2015)
• Smith & Nephew, Inc. (Apr. 29, 2015)
• Microwize Technology, Inc. (Apr. 29, 2015)
• Medtech Imaging, Inc. (Apr. 29, 2015)
• 2217044 Ontario Inc.; Hydropool Inc.; La-Z-Boy Global Limited; La-Z-Boy Incorporated (Apr. 29, 2015)
• Greenway Health, LLC (Apr. 29, 2015)
• Electrical Enlightenment, Inc. (Apr. 29, 2015)
• Diagnostic Imaging Holdings, Inc. (Apr. 30, 2015)
• Insight Health Services Holdings Corp. (Apr. 30, 2015)
• Sinopec USA, Inc. (Apr. 30, 2015)
• McAllister Software Systems, LLC (Apr. 30, 2015)
• Henry Schein Practice Solutions, Inc. (Apr. 30, 2015)
• Dental Resource Systems, Inc., John C. Harris, Mark W. Montgomery and Richard Amy (Apr. 30, 2015)
• Management Information Technology Corp.; John Graham and Linda Graham (Apr. 30, 2015)
• Hoffman Pizza, Inc. and Glen Spiegler (Apr. 30, 2015)
• American Capital Group, Inc. and Carl Heaton (Apr. 30, 2015)
• Websolv Computing, Inc. and Uday Om Ali Pabrai (Apr. 30, 2015)
• Trinity Physician Financial & Insurance Services and Joseph Hong (Apr. 30, 2015)
• C&T Pizza, Inc., Joseph Cianciolo and Franca Cianciolo (Apr. 30, 2015)
• Be-Thin, Inc. and Kevin Eberly (Apr. 30, 2015)
• CVS Health Corporation; Caremark, L.L.C. (Apr. 30, 2015)
• Stryker Lubricant Distributors, Inc. (Apr. 30, 2015)
• Free Continuing Education Association, LLC d/b/a FCEA, Daniel Nava, and Michael Keith McHenry (Apr. 30, 2015)
• Zydus Pharmaceuticals (USA), Inc. (Apr. 30, 2015)
• Rehab Missouri, LLC d/b/a Rehab Xcel, Physiotherapy Associates, Inc. (Apr. 30, 2015)
• Business Financial Services, Inc. (Apr. 30, 2015)
• Key Health Group, Inc., Key Health Medical Solutions, Inc., Key Health Management, Inc., MedLegal Solutions, Inc. and Key Health Medical Solutions of Nevada, Inc. (Apr. 30, 2015)
• Five-M Software Systems Corporation (May 1, 2015)
• AEP Energy, Inc. (May 7, 2015)
• United Stationers, Inc. (May 18, 2015)
• Business Promotion, LLC (May 20, 2015)
• Meadowbrook Insurance Group, Inc. (May 29, 2015)
• Northwood, Inc. (June 2, 2015)
• Reliant Services Group, LLC (June 16, 2014)
• Megadent, Inc. (June 24, 2015)
• Ivoclar Vivadent, Inc. (June 24, 2015)
• Renaissance Systems and Services, LLC (June 25, 2015)

On November 28, 2014, the Consumer and Governmental Affairs Bureau released a Public Notice (DA 14-1717) seeking comment on the following petitions: Howmedica Osteontics Corporation, Stryker Corporation, Stryker Sales Corporation, and Stryker Biotech, LLC; Emery Wilson Corporation d/b/a Sterling Management Systems; ACT, Inc.; Amicus Mediation & Arbitration Group, Inc.;             Alma Lasers, Inc.; Den-Mat Holdings, LLC; ASD Specialty Healthcare Inc., d/b/a Besse Medical, AmerisouceBergen Specialty Group, Inc., and AmericansourceBergen Corp.; Apex Energetics, Inc.  Comments were due on December 12, 2014 and replies were due on December 19, 2014.

On December 30, 2014, the Consumer and Governmental Affairs Bureau released a Public Notice (DA 14-1717) seeking comment on the following petitions: McKesson Corporation; Sunwing Airlines, Inc., Vacation Express USA Corp., and Sunwing Vacations, Inc.; American Association for Justice; ZocDoc, Inc.; J.L. Barnes Insurance Agency, Inc. d/b/a JLBG Health; St. Luke’s Center for Diagnostic Imaging, LLC; CDI Open MRI of Missouri, LLC; Senco, Inc.; Eat Street, Inc.; Henry Schein, Inc.; and Philadelphia Consolidated Holding, Corp. et al.  Comments were due on January 13, 2015 and replies were due on January 20, 2015.

On January 30, 2015, the Consumer and Governmental Affairs Bureau released a Public Notice (DA 15-130) seeking comment on the following petitions: SME Inc., USA d/b/a Superior Medical Equipment (Dec. 29, 2014); Dental Solutions, Inc. d/b/a Hogan Dental Laboratory; A-S Medication Solutions, LLC; Surefire Fulfillment Services, Inc. d/b/a Surefire Health and Gary Mills; Medversant Technologies, LLC; Social UPS, LLC, Virtual Lending Source, LLC, and Telnform, LLC; Andrew Lichtenstein, Inc. d/b/a Lichtensteinre d/b/a Doctormortgage.com and Andrew Lichtenstein; Zoetis, Inc., f/k/a Pfizer Animal Health; Zoetis LLC and Zoetis Products LLC; RadNet Management, Inc.; Houghton Mifflin Harcourt Publishers, Inc., Houghton Mifflin Harcourt Publishing Company, and Laurel Kaczor; Grey House Publishing, Inc.; American Institute for Foreign Study, Inc.; EXP Pharmaceutical Services Corp.; Dongili Investment Group, Inc.; Label Tape Systems, Inc.; and Premier Health Exchange, Inc. and Premier Health Exchange West, Inc.  Comments were due on February 13, 2015 and replies were due on February 20, 2015.

On February 27, 2015, the Consumer and Governmental Affairs Bureau released a Public Notice (DA 15-264) seeking comment on the following petitions: Creditsmarts Corp.; Water Cannon, Inc.; and National Pen Co LLC/National Pen Holdings, LLC.  Comments were due on March 13, 2015 and replies were due on March 20, 2015.

On March 27, 2015, the Consumer and Governmental Affairs Bureau released a Public Notice (DA 15-379) seeking comment on the following petitions: Boehringer Ingelheim Pharmaceuticals, Inc. and Boehringer Ingelheim Corporation; Healthways, Inc. and Healthways WholeHealth Networks, Inc.; Park Surgical Company, Inc.; USI, Inc.; Esoate North America, Inc.; Big Hairy Dog Information Systems, Inc. and Retail Pro International, LLC; Prodigy Diabetes Care, LLC; Solutions on Hold, LLC d/b/a Dentistry on Hold; and Kirby Lester, LLC.  Comments were due on April 10, 2015 and replies were due on April 17, 2015.

On May 8, 2015, the Consumer and Governmental Affairs Bureau released a Public Notice (DA 15-555) seeking comment on the following petitions: Boehringer Ingelheim Pharmaceuticals, Inc. and Boehringer Ingelheim Corporation; Healthways, Inc. and Healthways WholeHealth Networks, Inc.; Park Surgical Company, Inc.; USI, Inc.; Esoate North America, Inc.; Big Hairy Dog Information Systems, Inc. and Retail Pro International, LLC; Prodigy Diabetes Care, LLC; Solutions on Hold, LLC d/b/a Dentistry on Hold; and Kirby Lester, LLC.  Comments were due on May 22, 2015 and replies were due on May 29, 2015.

On May 29, 2015, the Consumer and Governmental Affairs Bureau released a Public Notice (DA 15-646) seeking comment on the following petitions: Endo Pharmaceuticals, Inc.; AEP Energy, Inc.; United Stationers Inc., et al; and Business Promotion LLC. Comments were due on June 12, 2015 and replies were due on June 19, 2015.

Other Petitions

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

• Anthem submitted a petition seeking a declaratory ruling and exemption regarding non-telemarketing healthcare calls. They ask 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.
• Note:  The FCC did not address this petition in its TCPA Declaratory Ruling and Order (FCC 15-72), nor has it sought comment on the petition at this time.

2. Blackboard, Inc. (filed February 24, 2015)

• 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.
• On March 23, 2015, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 15-364) seeking comment on the petition.  Comments were due on April 22, 2015 and replies were due on May 7, 2015.

3. Bijora, Inc. (filed October 7, 2014)

• This petition was filed on behalf of a small business owner who was sued under the TCPA after sending out text message advertisements to individuals from whom the petitioner claims he had prior express consent.  The petition seeks a declaratory ruling that Section 64.1200(a)(4)(iv) – the rule that requires opt-out notices on fax ads – does not apply to solicited text messages.  Alternatively, he asks for a ruling that Section 227(b) is not the basis for the rule or for a retroactive waiver of the requirements under the rule.
• On November 7, 2014, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 14-1613) seeking comment on the petition.  The Public Notice states that the FCC will consider this petition as it relates to text messages only.  (It had already ruled on opt-out notices in the context of fax advertisements in the Anda order (FCC 14-164).  Comments were due on November 21, 2014 and replies were due on November 28, 2014.

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. VoAPPs, Inc. (filed August 1, 2014)

• VoAPPs provides a service that delivers voicemails to consumers’ mobile voicemail box without making a phone call.  The company argues that because they do not make calls or deliver the voicemails in a way that would cause the recipients to incur charges for a call, the service should not be subject to the autodialer or prerecorded call provisions of the TCPA.  
• On September 3, 2014, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 14-1269) seeking comment on the petition.  Comments were due on October 3, 2014 and replies were due on October 20, 2014.

7. 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.

8. National Grid USA, Inc. (filed Feb. 18, 2014)

• National Grid seeks clarification that providing a company’s d/b/a that is registered with the state corporation commission at the beginning of a pre-recorded call is sufficient to satisfy FCC rules for identifying the calling party.  National Grid argues that many consumers will likely recognize a company’s d/b/a rather than the legal name, and requiring the caller to provide both names would unnecessarily prolong the call.  In the alternative, National Grid seeks “a waiver that would allow the use of a d/b/a name registered with a state corporation commission when placing prerecorded calls.”
• On February 28, 2014, the Consumer & Governmental Affairs Bureau released a Public Notice (DA 14-271) seeking comment on the petition.  Comments were due on March 31, 2014 and replies were due on April 15, 2014.

9. 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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